LOUIS HENKIN: INTERNATIONAL LAW, POLITICS, VALUES AND FUNCTIONS

Until recently international law did not cover individual human rights. It was confined to
relations between states and a states activities inside its borders were considered its own
affair and elements of autonomy, domestic jurisdiction.
Earlier intl. law began to attend the internal matters that held special interest for other states,
later for the benefit of individuals and eventually individuals themselves. States were
concerned in case of their nationals living abroad and agreements began to be signed to
ensure responsibility for these foreign nationals and to give privileges like the freedom to
reside, conduct business, worship etc. It was only in 18th, 19th century that individual human
welfare entered intl. law discourse. Slave trade was abolished in the 19th century in European
and American states. Eventually, agreements sought to make war less inhumane and cruel by
safeguarding prisoners of war, wounded, civilians etc. Humanitarian limitations were placed
on war which cost a states military interests.

Post WW1 several League of Nations programmes reflected concern for individual human
rights. The dominant states pressed minority treaties on other states to respect the ethnic,
national and religious minorities among their inhabitants. The ILO was established setting
minimum standards for the working conditions etc. Principle of customary international law
developed to cover only limited categories of people important in inter-state relations. These
norms and agreements were accepted by states not because of sensitivity towards human
rights, but mere political-economic interests. Simply, interference with a diplomat interfered
with his functions and disturbed orderly, friendly relations. In the age of growing
mercantilism, state interests needed to be protected, through the people who represented
them.

Minorities treaties were signed predominantly because of the international threat that they
would identify with other states. Also the improvement in the labour conditions was also
capitalisms defence against the spreading socialism which had taken over Russia at the time!
States were interested in the condition of labour in countries that competed with them, since
any improvement in labour conditions in their country would increase their production costs,
rendering them uncompetitive.
Ideas of rights and constitutionalism in the 17th 18th century with Locke, Montesquieu,
Rousseau, French Declaration etc. influenced development inside countries but did not affect
international political legal systems. Concerns for individuals in another state was not
conceivable especially due to implications of statehood because the condition and treatment
of individuals in another country was not known abroad. Such information was state filtered
and not a business of diplomacy. The veil of statehood was therefore impermeable. A major
event of human rights violation would be met with polite expressions of regret wrapped not
in law but morality. Few states had the sensitivity and moral standing to intercede. In case a
state invoked an international standard of justice for its nationals abroad it would be
unprecedented. Torture, brutality, violation of due process etc. were normal. Few states did
recognise political freedoms of speech, association, assembly etc. Women were a subject of
rampant abuse and oppression. Violations of civil and political rights of today, had little
impact beyond the national boundaries in those times. Failure of a state to provide economic
and social welfare was beyond the scope of external interference. With no media alerts of
information, NGOs etc. there was no way to sensitize and activate people and governments.

OSCAR SCHACHTER: INTERNATIONAL LAW IN THEORY AND PRACTICE

While discussing the complexity and autonomy of international law, its reality seems to be
assumed generally. Though it is questioned if there can be a genuine and effective law in a
society of sovereign states dominated by power and self-interest. Sceptics question the role of
international law in establishing an international order. They prescribe to four different
views:

1. Dominance of power over law- This is also called the realist viewpoint. Power is
seen as the ability of state to impose its will on others or control outcomes contested
by others. Components of power can be military, political, economic or
psychological. Its unequal distribution is a dominant factor in relations of states.
States strive to augment their power to attain more freedom of action and other
objectives. Law plays a subordinate role of a gentle civilizer of events and not to
suppress the chaotic and dangerous aspirations of governments. Thus the control and
limit on the state actions is not due to law but due to their own perception of national
interest and countervailing power of others. Raymand Aron calls the international
society as an anarchical order of power where might makes right. Power rather than
law governs. This is further proved by the fact that legal arguments are used mostly
 by alleged violators and in the absence of adjudication and compulsory judicial
settlement of international disputes, power politics prevails. Those with power have a
decisive influence over the contents of rule and their application in practice.
International law both reflects and sustains the existing political order.
Despite all of the above, states observe international law for various reasons, one
reason being institutionalized habit of officials as a matter of practice. Many a times
the option of violation is not considered at all. Secondly, because the governments
consider reciprocal observance by the other party; Thirdly, because of likelihood of
retaliation and self-help measure by other party; Fourthly, to avoid negative
consequences of repudiation of their obligations; Fifthly, to preserve states reputation
for legality generally; Sixthly, domestic judicial enforcements that prevent the state
from not complying; and lastly because remedies are sometimes available to the
aggrieved party in the form of arbitral and judicial means or loss of benefits under
treaty regimes.
2. Dependence of international law on the will of nations- This is also called
voluntarism or consensualism. This concept has been applied to international law
generally as well as specific rules. This has been further categorized as follows:
a) International law as a general system shows expression of will of parties-
this assertion is supported by practice. The very fact that a state has authority
over its territory and its people means that it recognises basic international
law. Its membership in itself is a presupposition of adherence to its basic
rules. An objection to this view is that the states cannot be said to willing
adhere since they dont have a choice in the matter.
b) Creation of a new rule or repeal of an old rule of customary law requires
consent of states- since customary law emerges due to practice and opinion
juris it shows consent. The question w.r.t how many states are required to
establish a custom and the generality, frequency, density and consistency etc.
required depend on circumstances. But it is agreed that general custom does
not require universal consent.
c) Non-consenting state is free from the application of a customary rule- this
is the most significant test of the voluntarist-consensualist theory. These states
are categorized into: those who have neither consented to nor denied the rule;
and those who have expressly denied the application of the rule. This rule of
persistent objector whereby such a state would not be bound by the rule if it
 has from the very beginning denied its acceptance. But the most fundamental
rules cannot be avoided by even such countries, like the jus cogens norms.
d) Customary law may be rejected on the ground that it is against the states
will- This is the strongest use of voluntarist theory, though no state has
espoused this position yet since it would amount to a denial of customary law.
Although the threshold for establishing a universal rule can be raised by giving
strong preference to sovereignty and voluntarism. In the name of vital interest
of the state, the state relies not only on its will but also on its self-interest that
prevails over law. For instance, in this context certain states have interpreted
self-defence and preservation of sovereignty as ground of vital interest to
justify departure from rules.
3. With deep divisions in the society whether there can be a common authoritative legal
system
4. Fragility of a legal system that lacks a centralized institution of enforcement

HENRY J. STEINER AND PHILIP ALSTON: INTERNATIONAL LAW AND

HUMAN RIGHTS

This article examines UN and its Charter and its aspects that bear an examination of basic
rights instruments.

It is impossible to grasp the human rights movement without appreciating its close relation to
and reliance on international organisations. Both universal and regional human rights have
links with these organisations.

Charter provisions

Charter has seen a radical transformation in its laws of war from jus in bello to jus ad bellum
i.e. from rules governing the conduct of warfare to those concerning the legality of waging of
war. Article 2(4) of the UN Charter prevents the use of force with a qualification in Article 51
allowing use of force for individual or collective self-defence purposes in case of armed
attacks. Human rights references are few in the Charter, appearing in the Preamble and
Articles 1(3), 13(1)(b), 55, 56, 62(2) and 68. All of these references mention the
encouragement, promotion and assistance in realization of human rights etc. and none impose
any obligation upon the states to ensure the same. Further, only one human right finds direct
mention in the Charter, i.e. equal protection.
UN and the Declaration

ECOSOC, an organ of UN set up the Commission of Human Rights (UN Commission) in

1946 which has evolved to be worlds single most important human rights organ.
Commission included founders of HR movement like Cassin from France, Malik from
Lebanon, Roosevelt from USA etc. They adopted the UDHR in 1948 with 48 states in favour
and 8 abstaining vote. This declaration was to precede a more comprehensive convention. It
included most of the prevailing human rights concepts such as economic, social and civil,
political rights. Due to the Cold War, the HR movement was rigged with ideological conflicts
of a polarized world such that two separate treaties were formulated by dividing the rights
into two covenants: ICCPR and ICESCR, in 1976. During all intervening years between
1948-1976, UDHR which was the only broad based instruments. No other instrument had
captures the same moral and rhetorical force, exerted as much influence on the whole. It was
more radical than recognized by its framers and was rooted in doctrines of international law
that forever changed the discourse of international relations on issues vital to human decency
and peace.

Other UN Organs related to HR

Articles 10 and 13 of the Charter are of significance as they respectively empower the GA to
discuss matters within the scope of the Charter and make recommendations to member states
accordingly and also make recommendations for the realisation of human rights. Powers of
SC envisaged under Chapter 7 authorize it to take action to maintain international peace and
security (Article 42) and determine the existence of any threat and breach of peace or act of
aggression (Article 39). Article 25 obliges member states to carry out the SCs decisions on
these matters. Two of the 7 main committees of GA have participated in drafting or etc. of
human rights: The Social, Humanitarian and Cultural Committee and the Legal Committee.

Historical Sequence and Typology of Instruments

1. UN Charter- at the pinnacle of the human rights system. Although the Charter does
not say much, it has been interpreted and invoked such that it has led to inventive
departure of the entire movement.
2. UDHR- primary position of the constitution of the entire movement
3. Two Covenants- more detailed with rights in addition to those in UDHR. Along with
UDHR these form the International Bill of Rights
 4. Multilateral human rights treaties- these develop further the content of the two
covenants such as the Convention on the Prevention and Punishment of Crimes of
Genocide, 1951; CEDAW, 1981; International Convention on the elimination of all
kinds of racial discrimination, 1969; Convention against torture and other cruel,
inhumane and degrading treatment or Punishment, 1987; convention on the rights of
the child, 1990.

COMPARISION OF UDHR AND ICCPR

1. UDHR is horatory, recommendatory and not binding whereas the ICCPR is a binding
instrument. But even in such a case, it is questioned who would ensure compliance
with such commitments in case of ICCPR and whether there will be consensus on the
meaning of these commitments in the first place. Some have opined that even the
Declaration be seen as legally binding, either as a matter of CIL or as an authoritative
interpretation of the UN Charter.
2. UDHR cannot create an international institution, whereas ICCPR can. It has created
the HR Committee. This organ gives support to the norms within the covenant and the
covenant in turn imposes on state parties formal obligations to the committee.
3. Both the UDHR and ICCPR are terse about their derivations or foundations in moral
and political thought. They do not reveal the sources of their intellectual history,
important guides to their interpretation and evolution.
4. The covenant is more detailed than UDHR and elaborate upon the rights envisaged
under UDHR and add more rights
5. Both the instruments are characterized by individual rights. Group or collective rights
are rare and seen only in context of self-determination in Article 1 and survival of
cultures in Article 27. Rights case in terms of the individual, such as the right to equal
protection and right to practice ones own religion have inherent group character such
that the identity at issue in denial of equal protection is a group identity.
6. In both the instruments, the idea of rights of individuals dominates and the duties are
all w.r.t the state. Article 29(1) of UDHR talks about everyones duty towards the
community but no such reference to individuals duties is made in the Covenant
although a mention is found in the preamble.
7. Right to property has been envisaged in Article 17 of UDHR but not in the covenant
 8. UDHR talks about the right to remedy in case of violation of fundamental rights in
Article 8. Article 2 of the covenant goes further and creates state obligation to ensure
that the rights of all individuals are looked after and also create legislations for the
same with competent authorities to enforce the same.
9. Limitations to state obligations: Article 4 of ICCPR lays down limitation in case of
public emergency and Article 9 talks about arrest and detention allowing temporary
derogation. Article 29(2) of UDHR is not linked to any specific right.
10. Article 5 of UDHR bans cruel, inhuman and degrading treatment but does not refer to
death penalty in specific. Second optional protocol of ICCPR Article 1 provides that
every state shall take measures to abolish death penalty within their territory.

All rights can be categorized into 5:

a. Protection of the individuals physical integrity

b. Procedural fairness when government deprives an individual of liberty
c. Equal protection
d. Freedoms of belief, speech and association
e. Right to political participation

UN AND ICCPR

1. ICCPR provides for a number of links with the UN

2. Annual report of the ICCPR has to be submitted to the GA under Article 45
3. Provisions of amendment of ICCPR under Article 51
4. Funding of these treaty regimes like ICCPR are dependent on the biennial budget of
the GA

MARY ANN GLENDON : A WORLD MADE NEW

This book is a comment on the universality of UDHR and the political and ethical traditions
that inform it.

It has been questioned time and again, how an agreement is conceivable which can cover the
four corners of the world. The UNESCO philosophers say that where the basic human rights
are concerned, cultural diversity is exaggerated. They say that human rights are based on
common conventions; even though those conventions are stated in terms of different
philosophical principles and on the background of divergent political and economic systems.
Many allege this document to be a characterization of neo-colonialism and an attack on
universality in the name of cultural integrity, self-determination and national sovereignty. But
such allegations come generally from those under domestic pressure for freedom building.
Such as Iran in 1998 whose representative called the document as embodying a Judeo-
Christian understanding of rights unacceptable to Muslims. Such authoritarian governments
claim the declaration to be imposing foreign values on them.

Individuals who have questioned the universality of this document call it an attempt to
universalize a particular set of ideas and to impose them upon three-quarters of the world
who were not represented at its creation. Arguments of cultural relativism and cultural
imperialism though need to be taken seriously. Arguments calling the document Western
harp on two points: 1) unrepresented colonized nations; 2) declaration picked from European
and American documents w.r.t the first draft created by John Humphrey. Though Chang,
Malik, Romulo, Mehta, Santa Cruz, the most influential of members of the HR Commission
have opined that the genesis of each article was part of a dynamic process in which many
minds, backgrounds, interest, etc. have been considered.

The declaration is based on modern dignitarian rights as seen in Europe and Latin America
rather than individualistic rights more Anglo-American. Individual rights with priority to
individual freedoms and no associated responsibilities would have found little place in Asia
or Africa. Dignitarian rights instruments emphasise on family and their attention to duties are
more compatible with Asian and African traditions. Rights are formulated with clear limits
and relations with other rights and responsibilities that belong to citizens and the state. As per
the declaration, everyone; is an individual who is constituted by and through relationships
with others. Everyone is envisioned to act in spirit of brotherhood. Though the declaration
is dedicated to individuals, it starts with the spirit of brotherhood and ends with concern for
community, order and society. The departure from individualism and also collectivism is the
hallmark of dignitarian rights instruments such as the declaration.

Declaration has served as a model for the rights of some 90 constitutions. In 1993, 171
countries committed themselves to the UN and the UDHR. It is incorrect to assume that the
declaration demands a single approved model of human rights for the entire world. It is also
incorrect to assume that the only other way is that the rights be subjective in every place and
time. Even the principle framers did not intent the standards created by the document to be a
completely uniform practice but only that these be brought to life in legitimate variety of
ways. It is the similarity of all human beings that formed the basis of these universal human
rights and puts all other differences in perspective.

LAUTERPACHT: INTERNATIONAL LAW AND HUMAN RIGHTS

The universal recognition of UDHR was accompanied by a universal repudiation of its

creation of a legal obligation upon states. The representative of US said before the GA that
the UDHR is neither a treaty nor an international agreement. It is not and does not purport to
be a statement of law or of legal obligation.

The view that the declaration in itself may not be a legal document though it has a legal value
in as much as it contains an authoritative interpretation of the humans rights and fundamental
freedoms which constitute an obligation binding upon the member states. This view has been
refuted by those who claim that to maintain that a document is an authoritative interpretation
of a legally binding instrument presupposes that the document itself is legally binding.
Though it may be important for the interpretation of the Charter, it does not purport to
embody what civilized nations generally recognize as law. It only expresses that which ought
to become principles of law recognized and acted upon by member states. Its provisions
cannot form subject matter of legal interpretation.

Its non-legal character does not divest it of its importance. It may due to this reason even lead
to evolution of a vital part of international law. The authority is a function of the degree to
which states commit themselves to an effective recognition of these rights guaranteed by a
will and an agency other than and superior to their own. No bill of rights however rigid its
legal obligations and enforcement may be effective unless it secures the support of public
opinion of the world. Comparing UDHR to other declaration one finds that neither did these
have judicial remedies and enforcement mechanisms from their inception but became part of
national law and action from the beginning. One of the principles governing UDHR declares
that it lay down individual rights and no state duties or else it would constitute a legal
instrument. But there are no rights of individuals if not a product of duties of state. Rights
must be accompanied by remedies. Such a correlation is only logical and fundamental to the
structure of the declaration.
 THEO VAN BOVEN: DISTINGUISHING CRITERIA OF HUMAN RIGHTS

It has been questioned whether certain human rights are more important than others. This
would imply a hierarchy in these rights. There is although an idea of indivisibility of these
rights that come all in a package. Fundamental rights also called elementary rights or supra
positive rights are those whose validity is not dependent on their acceptance by people but
which are at the foundation of the international community. These may include principles of
racial non-discrimination forming one of the foundations of international community. Article
3 of the Geneva Convention 1949 lays down the minimum humanitarian standards that are
and shall remain prohibited under any circumstances.

A) Violence to life and person, in particular murder, etc. kinds of mutilation, cruel,
degrading and inhuman treatment
B) Taking of hostages
C) Outrages of personal dignity
D) Execution without due procedure

Article 4 of ICCPR enumerates the rights from which no derogation is allowed in time of
even public emergency. These fundamental rights establish the erga omnes principles that are
crucial to ensure respect for human rights. There is no fixed system however to identify these
higher rights and their contents. These superior rights are although being frequently resorted
to in the hope that these will not be dared to be ignored politically, morally and perhaps
legally. But this discourse has to be carefully traversed as this categorization may adversely
affect the credibility of human rights as a legal discipline.

The proposal in 1994 to include Articles 9 and 14 under the list of non-derogable rights was
rejected. This is because these rights are so fundamental that leaving them in an optional
protocol for the parties to accept or reject them would undermine the purpose of these rights.
It would be taken to mean that those states that do not ratify it may derogate these rights.

Further, ICCPR does not contain provisions for states to terminate, denunciate or withdraw.
The states may not do so unless it is established that the parties intended for such possibility.
Further it is concluded that the drafters themselves intended to exclude such possibility. It is
meant to bind a state irrespective of the changing governments that may or may not choose to
be governed by it. Thus the committee believes that no state may be permitted to withdraw
from the covenant.
 MANFRED NOWAK: CIVIL AND POLITICAL RIGHTS

These rights are also referred to as the first generation human rights. These are the most
important achievements of American and French revolutions in early 18th century. These are
expressions of two different types of freedoms: the concept of collective freedom through
political participation in decision making; and individual freedom by creating private sphere
for every human to protect them from state interference. Political rights are individualistic
expressions of democracy whereas civil rights of liberalism. The latter are more complex and
cover rights to life, privacy, dignity, physical integrity, religion, opinion, etc. The former
however includes the liberty of persons, freedom of movement, expression etc. Political
freedoms form a link between these two kinds of rights.

Recognition of Civil and Political Rights

During Cold War, human rights were highly politicized and often misused in ideological
debates. Western states tried to reduce these rights to the classical concept of civil and
political rights as manifested in different treaties and conventions. Socialist states advocated
predominant economic, social and cultural rights and were therefore a major obstacle to the
development of the civil and political rights within UN. Africa saw HR violations as a result
of colonialism and only after the adoption of the African Charter were HRs first protected.
Asian states too failed to develop a binding treaty but openly criticized the universality of
HRs and civil and political rights specifically.

There was an emerging consensus that all human rights are equally important and
interdependent and related. The view that civil and political rights entail a negative duty on
states and vice versa in case of economic and social rights, could no longer be upheld since
all HRs called for state obligations and resultant protection etc.

ICCPR ratified by more than 140 nations created the HR Committee, an 18 member expert
body. This body has amply examined the provisions of ICCPR and all decisions taken by it
have been adopted by consensus and therefore reflect interpretation of civil and political
rights by highly competent HR experts.

Obligations of states
Very few rights are absolute such as that against torture. States otherwise have a broad
margin of appreciation to restrict the exercise of these rights in the interest of public order,
safety, security etc. These restrictions must be proportional, reasonable, and non-arbitrary and
be instigated by a pressing social need like in times of public emergency. This has been
permitted under Article 4 of ICCPR. State has a positive duty to safeguard these HRs by
enacting domestic laws, effective judicial and administrative measures, etc. For e.g. the right
to fair judicial hearing constitutes the state obligation of establishing sufficient courts,
employ adequate judges, institutions etc. Similarly right to vote means democratically elected
bodies. Right to marry means the recognition of marriage as a legal institution etc. State
obligations do not preclude individual responsibility. Article 6(1) of ICCPR preserves the
right to life of all humans. This includes not to be killed by state agents, starvation, epidemic,
etc. The state also has responsibility to ensure that personal bodily crimes are not committed
within its territory. Right to personal security is also given under Article 9(1) of ICCPR.
Article 17(2) prevents interference with privacy, family, home etc.

Right to life

This is a right from which no derogation is permissible even in emergency situations but still
not as strictly as from torture. Article 6(1) of ICCPR, 4(1) of American Convention on HR
and 4(1) of African Charter prohibit arbitrary deprivation of life. ECHR decided in the case
against UK that the killing of 3 IRA members was against the European Convention on HRs.
Arrest, abduction etc. are examples of this violation. Forced disappearances are a unique
demonstration of state repression. Many millions of persons suffer under military
dictatorships. Even if states are not directly involved right to life is violated. Death penalty is
not seen as violative of human rights if assigned by due procedure. Article 4 of the American
convention reads that death penalty shall not be restarted in states that have abolished the
same and cannot in any case be given to minors and pregnant women etc. The HR Committee
in a case against Jamaica held that if all guarantees of fair trial under Article 14 of ICCPR
were not followed, right to life would be violated. Further abortion has also been seen as a
controversial issue within right to life. US Supreme Court in the landmark Baby Boy case
held that abortion could be done till the end of the first trimester. Conventions generally do
not characterize when this right to life commences. The preparatory works of the ICCPR
suggest that an unborn baby is not to be protected from the time of its conception. Even in
case its rights are recognized, they must be balanced against right of a mother. Right to life
also extends to all threats natural or man-made.

Prohibition of torture

Torture attacjes the core of the human personality. Article 1 Torture Convention defines
torture. Articles 7, 10 of ICCPR, 3 of European convention and 5 of American Convention.
ECHR qualified the interrogation techniques of British forces in Ireland as only inhuman
treatment. In case of threat of torture to a person a country is not bound to extradite such a
person to such place of torture. This principle of non-refoulement derives from Article 33 of
General Convention.

To eradicate torture, officials need to be trained, interrogations need to be recorded on tape,

detainees must be given prompt access to a doctor, violators must be strictly punished by
independent bodies etc. Further since torture takes place in the early stages of investigation,
independent international bodies should conduct surprise checks. Such a system had been
functioning since 1990 by the Council of Europe on the basis of the Torture convention,
1987.

Prohibition on slavery

Slavery is a direct attack on the essence of human personality and dignity. Like torture,
slavery was officially abolished in the Age of Enlightenment and is prohibited even in cases
of emergency. This is not only a treaty but a custom law. This is seen in Article 8 of ICCPR,
Article 4 of ECHR, Article 6 of American Convention and Article 5 of African Convention.
Mauritaria was the last country to abolish slavery in 1983.

Slavery Convention, 1926 defines slavery in Article 1(1) as the status or condition of a
person over whom any or all the powers attaching to the right of ownership are exercised.
The status of slavery also implies a violation of the right of everyone to recognition as a
person before the law, in accordance with Article 16 of ICCPR. Traditional forms of
servitude like serfdom, peonage, debt bondage, etc. have transformed into trafficking,
prostitution, etc. Forced or compulsory labour defined under Article 2 of ILO Convention
states, all work or service which is exacted from any person under the menace of any penalty
and for which the said person has not offered himself voluntarily. For instance, in a number
of cases professionals such as doctors etc. have argued that their forced services in given
locations violate their rights.

Liberty and Security of the Person

Personal liberty is one of the oldest human rights seen in the Magna Carta in 1215. It must
not be seen as liberty in the general sense but rather as liberty w.r.t freedom of bodily
movement, forceful detention, bounded location such as prison, hospitals etc. Article 9 of
ICCPR and similar provisions do not prohibit deprivation of personal liberty but only
mention certain cursory standards against arrest, detention etc. Article 5(1) of the ECHR
provides for an exhaustive list of cases of deprivation of liberty. Preventive detention is not
permitted under Article 5 of ECHR. Deprivation of any liberty can be only in accordance
with the procedures of domestic law such as: informing the detainee of the reason of his
arrest, right to compensation, right to trial, release in exchange of bail, etc. Article 10 of
ICCPR guarantees all persons special right to humane treatment etc. These are aimed at
reformation and social rehabilitation of prisoners. In case of Hungary, the HR Committee
held that only 5 minutes a day for hygiene and exercise did not cut it. Right to personal
security also obliges states to protect private individuals against threat to personal integrity.
Cases of enforced disappearances are an example of such a violation.

Procedural Guarantees in Civil and Criminal Trials

The right to fair administration of justice is held high in states based on rule of law.
Obligations of states are in such states detailed to ensure that the domestic court proceedings
adhere to minimum international standards. Austria had to overcome its traditional system
and subject its administration to judicial review. Article 14 of ICCPR entitles everyone to a
fair determination of civil and criminal charges and a fair public hearing. HR Committee sees
fair hearing as inclusive of several conditions such as adversary proceedings, ex officio
reformation, expeditious procedure etc. For this the states must establish sufficient
independent tribunals etc. Private law disputes are decided by independent tribunals whereas
public law disputes are decided by administrative authority.

It is rights said that justice must not only be done but also seen to be done. This is not only in
the interest of the parties but the public at large. Media is therefore allowed to attend
proceedings. Rights of accused include that to be presumed innocent until proven guilty, be
tried without undue delay, receive free assistance, call and examine witnesses, not be
compelled to testify against themselves etc.

Freedom to Movement and Protection against Arbitrary Expulsion

This right is envisaged in Articles 12 and 13 of the ICCPR. International law does not grant a
general right to enter any country and reside there since the right is restricted to those
lawfully within a certain territory. Article 12(4) gives the unrestricted right to enter ones
own country, to not only nationals but also to stateless persons and aliens who have a
permanent home in the territory of another state. These persons have an absolute right against
expulsion. The principle of non-refoulement and the protection of privacy and family life
might provide a stronger protection against expulsion, since it also applies to aliens who are
illegally in the territory of a state. The right to refugees to seek asylum as given under Article
14 of UDHR has not found its place in the Covenant.

Although the right to enter a country may be restricted, everyone enjoys the right to leave any
country. This is regulated for national security purposes and other reasons of public order and
health etc. Though the HR Committee imposes this positive obligation on states to ensure that
persons are able to leave their country without unreasonable restrictions. The same
limitations apply to liberty of movement within a nation. In the famous Lovelace case the HR
Committee held that in the interest of protection of minorities a state may impose restrictions
on the freedom of residence of certain indigenous groups. Banishment as a way of
punishment is permitted but not as a pure administrative measure.

Right to privacy, marriage, family life, and rights of children

Right to privacy is protected under Article 17 of ICCPR. This can be divided into individual
existence and autonomy. Right to privacy protects ones identity, integrity and intimacy. This
is not an absolute right but is protected from arbitrary and unreasonable interference. It can be
balanced with domestic interests such as national security, health, morals, etc. E.g. refusal by
the Dutch authorities to change into Hindu names the surnames of Dutch citizens who wanted
to become priests in India; or prohibition on changing sex; forced medical treatment etc.
cannot be seen as being reasonable. The latter part, i.e. autonomy is interfered more often by
state in modern societies justifying actions on grounds of public rights, social costs etc. These
may include penalty on failure to wear helmets, seat belts, take drugs, commit suicide etc.
Autonomy also covers the right to communication and therefore in case of a divorce, there
exists a positive obligation to ensure communication between children and parent without
custody. But the right to personal sexual life etc. cannot be intervened in the name of
morality, i.e. prohibition on homosexuality is an invasion on right to privacy. Right to privacy
protects specific private institutions such as home. Invasive surveillance to combat crime,
terrorism etc. are also violative of this right unless in compliance with strict and due
procedure. This has increasingly been seen as a mode of state interference, e.g. NSA. Right to
family essentially means that the state must not interfere arbitrarily with families e.g. separate
children from parents etc. For instance the ECHR held that Netherlands had no right to expel
a Moroccan citizen upon divorce since he had maintained close connections with his
daughter. Family for these purposes is broadly defined. It is seen as a natural and
fundamental group unit of society entitled to special protection under Article 23 of ICCPR
and also other economic and social rights treaties. Article 12 of ECHR states that marriage
and family be established as special institutions under private law systems and be regulated
by own cultural traditions respecting the freedom of spouses. An absolute prohibition on
divorce was seen as a violation. Article 24 of ICCPR establishes the rights of a child to
protection by family, society, state as required by their status as minors.

Political freedoms

Political Rights

These as under Article 25 of ICCPR constitute the very essence of democracy in terms of
subjective rights. Western states objected to their inclusion in the bill of rights. These may
include the right to take part in public affairs directly, right to petition, vote etc. Article 3 of
Additional Protocol to ECHR contains the state obligation to hold free elections rather than
the right to vote. In practice though the Court of HR has interpreted this right as entailing the
right to lodge a complaint.

1. State are obliged to ensure that elections are periodically held and are free, fair and
universal with rights to elderly, sick, disabled, etc.
2. States shall refrain from interfering with free and fair elections by privileging certain
political parties in their electoral campaigns through fraud, etc.
3. States have a positive duty to protect voters from undue pressure by private
individuals or groups. In particular, harassment, threats etc. from parties and pressure
groups.
Equality and non-discrimination

Along with liberty, equality is the most important principle of human rights. This means
equality before law i.e. this right should be applied by courts and administrative agencies in
the same manner as the persons subject to it. It prevents arbitrary enforcement of laws.
Democratically elected bodies are invested with tasks to create conditions ensuring equality.
That real equality can be achieved by law is a vague concept. Prohibition of discrimination on
grounds of race, sex, religion, creed, etc. is most important though these mere prohibitions
are insufficient. Affirmative action programmes, compulsory integration of artificially
segregated groups by way of quota system etc. in access to jobs is important. The more
deeply rooted discriminations like on the basis of gender are tackled with special human
rights treaties.

It is extremely difficult to establish clear and universal standards for what is meant by
equality and discrimination. Gender based discrimination in immigration was found
unreasonable by the ECHR. More controversial was the Dutch social security cases where the
women needed to prove that they were bread winners whereas the same requirement did not
apply to men. Politically motivated dismissals from public service or the privileged treatment
of Jehovahs Witnesses was considered unreasonable.

STEINER AND ALSTON: COMMENT ON WOMENS SOCIAL AND ECONOMIC

CONDITIONS

Ensuring womens right is incomprehensible without studying the social, economic

conditions that characterize their lives across the world. In every aspect whether social well-
being, status, political participation, wages, employment etc. women are worse off than men.
In terms of literacy they are nearly 50% of males. In terms of enrolment for higher education
one finds women only 2/3rd of men. Their employment is also half of men; their health
neglected and nutrition foregone etc. Employment is a major source of discrimination since
most of their work goes unaccounted for in the cash economy.

Economic development is not an automatic route to the relative advancement of women in

society. Japan with highest levels of human development finds only 2/3rd of its women
educated, earning only 51% of the average income of men, and holding 2% of parliamentary
seats and 7% of managerial and administrative jobs. Rather economic globalization is a risk
to them rather than a means of advancement in their status. This is because of the kind of jobs
and wages that would be available to them and the effects on welfare services. With
privatization of government services and corporations, economic deregulation etc. there will
be sharp cut backs on expenditure on social safety net such as on health, education, social
services, etc. This would disproportionately burden women and children.

AMARTYA SEN: MORE THAN 100 MILLION WOMEN ARE MISSING

Where Europe and North America find women ratio nearing 1.05, 1.06, Asia finds it near
0.94 or lower. This is shocking considering that at birth, girls outnumber boys and are
biologically more prone to survival. In the former continents, the ratio of women is higher
despite the biases against them in terms of education, jobs, etc. because their basic nutrition
and health is looked after. In case of Asia and Africa food and social services put women at a
distinct disadvantage such that they are exposed to higher risk of diseases with no access to
medical attention. Although the third world in itself cannot be considered a category since it
is very diverse. Sub-Saharan African with all the poverty, hunger and famine still finds a
higher ratio of women to men. The missing women in a country are calculated by those extra
number of women who would have survived had they been given adequate and similar care.
In case of China, there are about 50 million such missing women taking 1.05 as the
benchmark ratio. One view suggests that Europe and North America are inherently less sexist
then the Eastern globe. Yet another view suggests that it is a result of underdevelopment,
characteristic of poor economies. Both these views are inadequate for our understanding.
Economic social and cultural factors must be considered in appreciating the regional
differences. Who is doing productive work and contributing to the familys welfare is an
influential factor. Division of a familys joint benefits are more likely to be in favour of
women if they: 1) earn outside income; 2) work is recognized as productive; 3) they own
some economic resources or hold such economic rights; 4) there is an understanding of ways
in which women are deprived. This increases not only their status in the family but their
outside experience helps counter the relative neglect of girls, as women are seen as economic
producers.

Chinas situation is different in the sense that their skewed ratio is also fed by the fact of
strong measures to control family sizes in a culture that prefers males.

Other factors that are seen to improve this situation include education as seen in the case of
Kerala which has a ratio of 1.03 with a literacy rate highest in India and the life expectancy of
women at 72 years as compared to 67 in men. The literacy rate in Kerala is higher than China
too.

HILARY CHARLESWORTH AND CHRISTINE CHINKIN: THE GENDER OF JUS

COGENS

The authors contend that the concept of jus cogens should not be seen as universal in the
category of human rights because of the differential protection given to women and men.
Human rights law although a challenge to the dichotomy between states and individuals has
retained its deeper public/private distinction. In the major human rights treaties, rights are
defined in terms of what men fear will happen to them. The primacy has been given to civil
and political rights that govern the public domain, that of men, directed at their protection
from the government. The same status has not been given to economic and social rights that
concern the private sphere to which the women are confined. Women are given equal
protection in case of violation of their civil and political rights although such violations are
rare. For e.g. racial discrimination appears in jus cogens inventories though sex
discrimination does not. Though Article 6 of ICCPR preserves the right to life from public
action, nothing saves the woman from her life threatening position of being a woman and the
legal protection she needs to be able to enjoy her right to life. Violence against women is a
universal phenomenon across all countries and cultures. Legal system is only focussed on
public action by the state. For instance, the definition of torture includes that taking place in
the public realm, i.e. inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. This rules out the non-
governmental sphere.

Also, for instance the right to self-determination is for a group of persons, but what about the
oppression that women suffer within the group. USA supported Afghani resistance movement
after soviet invasion in 1979 without any concern for the condition of women inside Afghani
societies. Similarly, none of the plans for liberation or reconstruction of Kuwait were
concerned with that states denial of political rights to women. In the Indian context this can
be seen as Indian women who formed part of the independence struggle but their status was
not accounted for in the wider struggle.
Feminist rethinking of jus cogens would give a prominence to a range of other human rights
such as right to sexual equality, food, representative freedom, freedom from fear of violence,
oppression and peace.

STEINER AND ALSTON: COMMENT ON PROTECTION OF WOMEN UNDER

CONVENTIONS PRIOR TO CEDAW

1. Charters preamble talks about equal rights for women and men. Articles 1(3) and
55(c) mention the protection of humans rights with no discrimination on the basis of
sex among other criteria.
2. Article 2 of UDHR entitles everyone irrespective of sex, caste, etc. etc. to the rights
laid under the declaration
3. Article 2 of ICCPR is similar as in UDHR and Article 3 explicitly gives equal rights
to men and women. Article 26 is a general clause against discrimination as under
UDHR and under Article 23(4) spouses in a marriage are equal in rights and
responsibilities.
4. Similar provisions exists in ICESCR

Thus womens rights have been dealt with very marginally in all the instruments. When
certain forms of oppression are not clearly defined in the covenant they tend to be neglected.
The authors call CEDAW a ghettoization of question relating to women, to structures with
less power and authority than other human rights structures.

Discriminatory practices against women such as segregation from public life, polygamy,
dowry, bride price, foeticide, mutilation, etc. are rampant. Even forced prostitution which is
pegged as a form of slavery has never been raised in connection with anti-slavery provisions
of the covenant.

COMMENT ON CEDAWS SUBSTANTIVE PROVISIONS

CEDAW gives a very wide scope of definition of discrimination against women in Article 1.

Article 3 is to ensure the full development and advancement of women.

Article 4 provides for affirmative action for the same.

Article 6 requires a state to regulate specific non-governmental activity.

Article 7-9 bars discrimination by the state.

Article 10 concerns education.

Article 12 provides for the limited duty to provide health care.

Article 14 talks about participation of women in local decision making.

Article 16 obligates the state to wipe away all forms of discrimination against women.

COMMENT ON TYPES OF STATE DUTIES IMPOSED BY HUMAN RIGHTS

TREATIES

Negative rights impose a hands-off duty on the state for non-interference with an individuals
physical security. Positive rights on the other hand call for affirmative duties on the state.
Rights are not static but broaden and contract over time. To understand a right is to
understand a duty related to it. Right to speech would imply the governments correlative
duty to protect this right from non-state actors, which could mean providing access to a free
media.

1. Respect rights of others- negative duty

2. Create institutional machinery essential to realisation of rights- A citizens right
to vote would mean little unless the government ensure safe and fair electoral
machines, proper counting of ballot, etc. Public funds must be expended to create the
infrastructure for the practical realization of the rights of individuals.
3. Protect rights/prevent violations- by creating a police force, courts etc. whereby
citizens have access to safety, justice, remedies to violations, strict sanctions on
violators etc.
4. Provide goods and services to satisfy rights- Material resources to the right bearers
must be provided by the state, such as food, health care, etc. This is generally to
improve the situation of such a right bearer.
5. Promote rights- state also has the duty to change the public consciousness or
perception about this issue. It must create institutions to promote womens rights.
Promotion plays a vital role in CEDAW.
 JAMES NICKEL: HOW HUMAN RIGHTS GENERATE DUTIES TO PROTECT
AND PROVIDE

General rights are connected with duties that burden several parties. These duties may be on
primary duties of some parties and secondary duties of another party. For instance, in case of
torture, there exists a universal obligation against everyone but all that is required is that a
right holder has at least one agency with duties to protect his right against torture. Firstly, all
persons and institutions have a duty not to torture. Secondly, the government has a duty to
protect its people within its territory from torture.

Advantages of emphasizing on duties:

1. It moves the debate in the direction of implementation i.e. who has to do what for
such rights to be realized. In case of Brazil, where the primary duty to educate their
children lies with the parents, if the parents are unable to do so, the state is the holder
of the secondary duties and must ensure that such educational opportunities are
available to the poor children.
2. Questions of priority among rights and other social goals come to centre stage.
3. Leads to discussion of the inadequacies of the international political and economic
order.

THEODOR MERON: HUMAN RIGHTS LAW MAKING IN THE UN

CEDAW guards against the use of neutral criteria which is inherently discriminatory such as
a height weight criteria for women which automatically eliminates a large chunk of women
from qualifying. The definition of discrimination against women does not prohibit certain
distinctions per se but only when they have the purpose or the effect of denying women the
enjoyment of human rights and fundamental freedoms on a basis of equality with men. All
ethnic distinctions unless as an affirmative action.

It is debated whether the extension of CEDAW to cover private, interpersonal relations would
constitute a violation of privacy and conflict with rights of expression, belief and opinion etc.
Such a provision may be abused due to its broad language. Article 5 of CEDAW mandates
regulation of social political and cultural patterns of conduct regardless of whether the
conduct is public or private. State action thus authorized could conflict with the way in which
certain religious groups etc. treat women, i.e. discriminate on the basis of religion and race.
By limiting state action to educational measures in such an arena prevents it from violating
rights of ethnic and religious groups.

HILARY CHARLESWORTH: ALIENATING OSCAR? FEMINIST ANALYSIS OF

INTERNATIONAL LAW

Feminist analysis of international law has very recently begun because:

1. Very few women scholars and practitioners in international law, more of a mens club
2. Abstract concepts of international law such that they have limited impact on womens
lives
3. Emphasis placed in modern law on distinctions made on the basis of race, culture etc.
but not on gender
4. International law really deals with questions of life and death, war and peace, of the
real decision making power, not the domain of women

Historically the formation of states has depended on sexual division of labour and the
relegation of women to the private sphere. The distinction between public and private spheres
is at the heart of traditional notion of the state has had a defining influence on international
law. Even international human rights seen as challenging the traditional distinction between
international and domestic concerns targets public and state sanctioned violations.
Reconstruction is hindered if the concepts of statehood and sovereignty are taken as givens in
the international legal order. It is assumed that the feminist aim at the eradication of the state
but this is unfounded since this would only flourish patriarchy and worsen the position of
women. The condition of women in Bosnia- Herzegovina only underlines this.

In the patriarchal entity of international law is transformed it would become more flexible.
The sources of law as now given under Article 38 of the Statute of ICJ is a product of state
action. Feminist outlook would give priority to participatory democracy with greater
contribution of non-state actors in the creation of international law.

Accountability and responsibility have been discussed by scholars w.r.t discrimination

against women. Accountability is a wider concept where there exists a duty to provide an
explanation and account for an act; whereas responsibility is a narrower concept and a way of
discharging accountability. More mechanisms exist in international to hold a state
accountable but not responsible.
 KAREN ENGLE: AFTER THE COLLAPSE OF THE PUBLIC/PRIVATE
DISTINCTION: STRATEGIZING WOMENS RIGHTS

Two approaches have been taken to reason with the public private divide.

1. International law excludes from its scope the private, domestic sphere- this view
believes that international law will have to be reconceptualised to include women.
2. International law does not exclude women but uses the public private divide to
dispel responsibility of womens issues- this view suggests that claims made by
states and human rights regimes that the private sphere is untouched are false and the
same is encroached more often than not. The public private dichotomy is seen as
irrational and inconsistently applied.

Although too much focus on this divide assumes that private is bad for women and does not
heed to the protection that the same extends to women. It is hyped as being an unregulated
private. Examples of private seen as having liberating potential, include abortion,
alternative sexual lifestyle, prostitution, right to wear veil, breast implants, etc. Critiques
prevent the protective aspect of the private dimension from being taken seriously. They lead
us to conspiracy theories such as blaming an unknown they who seem to be want to exclude
us from the mainstream, dont care for us, are out to get us etc. Human rights law has created
its own criticism. Womens rights activists feel as excluded as the proponents of economic
and social rights. All push for inclusion through new official documents. These are as much a
testament to exclusion as to inclusion.

STEINER AND ALSTON: ICCPR AND ICESCR

DIFFERENCE

1. Difference in the terminology used in both the Covenants. Where ICCPR uses
language like Everyone has the right to.. and No one shall be.. ICESCR says State
Parties shall recognize the right of everyone to...
2. Obligation in the ICESCR is one subject to availability of resources / progressive
realization
3. Obligation imposed by the ICESCR is a programmatic obligation where the
obligations need to be fulfilled incrementally through on-going execution of a
programme so it is difficult to decide whether these have been met
INTER-DEPENDENCE

Both sets of rights cannot be separated into water-tight compartments. CPR is implicit in
ESCR.

1. Right to form trade unions is part of ICESCR whereas the right to freedom of
association recognized in ICCPR.
2. ICESCR recognizes various liberties and freedoms in relation to scientific research
and creative activity.
3. Right to education and parental liberty to choose a childs school are part of ICESCR
but the liberty of parents to choose their childs religious and moral education is given
under ICCPR.
4. Prohibition of discrimination w.r.t access to opportunities and facilities forms part of
both covenants.
5. ECHR which generally covers CPR also mentions the right to education.

DAVID BEETHAM: WHAT FUTURE FOR ECONOMIC AND SOCIAL RIGHTS

It is questioned whether the rights as under the UDHR or ICESCR really constitute human
rights or mere aspirations. Certain conditions need to be satisfied for qualifying as a human
right. These include:

1. Right must be fundamental and universal

2. Must in principal be definable in justiciable form
3. Must be clear who has the duty to implement and uphold rights
4. Responsible agency to possess capacity to fulfil these obligations

Rights under the covenant are not seen as satisfying these conditions. Fundamental is
confused with desirable. Even the most fundamental are not definable in a justiciable form.
This implies that these are not in the form which the court may be able to apply as a set
standard in legal proceedings. What level of deprivation calls for a legal redress is uncertain
and so is the authority responsible to ensure that these standards are met. In case of national
governments etc. a big consideration is the capacity to deliver. While negative rights may be
ensured to a certain extent, positive rights require of a government to provide. Such
provisions, say for a healthy environment, livelihood etc., require resources and capacity. In
this context, taxation is a logical recourse, though questioned as an infringement of right to
freedom. [Different taxation systems in India and the USA].
There are two responses to the question of ESC rights as human rights.

1. Cant be included into human rights when so many people are dying of hunger and
deprivation. It is an insult to human rights since there is no way for these to be upheld
2. Human rights most urgently need assertion and defending, both theoretically and
practically. These therefore must exist in contexts where such rights are vulnerable to
standard threats. These rights have a promotional and aspirational dimension to them.
This aspect affects not only those seeking to safeguard these rights but also those
claiming them as it lends their struggle a legitimacy.

A minimum core of rights is important for human agency. These may include the right to
food, health care, sanitation, education at primary level etc. In addition to these rights being
both fundamental and universal they must also satisfy the test of specificity. This means
that below a certain level a right is said to be denied such as perhaps, the level of nutrition.
Although there may be certain arbitrariness in this respect since it is left to political
discretion, generally acceptable significant threshold must be established such that rights
can then be justiciable and amenable to individual petition and complaint.

DAVID KELLY: A LIFE OF ONES OWN-INDIVIDUAL RIGHTS AND THE

WELFARE STATE

Although at a personal level we may not realize that the world owes us a duty, yet in our
public life we accept the obligation to provide food, shelter, job, etc. This forms the premise
of a welfare state wherein exists a sprawling network of programs for transferring wealth
from taxpayers to recipients. A welfare state is a historical phenomenon seen 100 years ago in
Otto von Bismarcks Germany and later in Great Britain. This viewed social provision not as
charity but as a right possessed by all citizens.

Where primary rights to liberty, freedom to act without interference, to speech, to expression
and against assault etc. are seen to be secured by the state, the same can be also said to be
endangered by the state too; thereby projecting state as a necessary evil for the preservation
of rights.

The concept of welfare rights is expansive as compared to that seen by the classical liberals
i.e. the duty to only police and safeguard. These rights differ from classical rights to life,
liberty, property etc.
 1. Primary difference is in the content i.e. that people are said to have the right to

Classical rights are rights to freedom of action whereas welfare rights are rights to goods.

2. The former are seen as freedom from whereas the latter are seen as freedom to.
Former are referred to as liberty rights whereas the latter are necessities.
3. Where the former are concerned with processes the latter are concerned with
outcomes- This means that under welfare rights people are assured of a minimum
guarantee despite anything. These are entitlements to have certain goods and not
merely to pursue them, in contrast with the liberty rights. These rights lay down
conditions on the way in which individuals interact but with no guarantees for
success.
4. The responsibility to respect another persons liberty rights falls on each one
individually but the responsibility to respect anothers classical rights falls on all
individuals indifferently i.e. on all members of the society and cannot be claimed
from one person specifically.
5. To protect liberty rights of individuals the state acts as the night-watchmen as under
classical liberalism. The implementation of the welfare rights requires a more activist
form of government. Where the former can be ensured via simple prohibitions, the
latter would involve large scale enterprises to be run by the government, such as
pension plans, health insurance, etc.
6. Both rights differ at the level at which it is possible to implement them. The economic
and technological development of a society affects the degree of implementation of
these welfare rights. To ensure minimum guaratees to citizens, the minimum level
must be decided as a need and not as a luxury. Since this determination is left to be
made by the state concerned, it depends on the wealth in a given society. The same is
not true for classical rights.
7. Liberty rights reflect an individualist political philosophy that prizes freedom.
Welfare rights are a communitarian or collectivist one that are willing to sacrifice
freedom.
 HOLMES AND SUNSTEIN: THE COST OF RIGHTS- WHY LIBERTY DEPENDS
ON TAXES

The author questions the distinction between positive and negative rights and analyses it
in the American context. He states that this distinction does not appear in the American
constitution, although one category of citizens prefer immunity from public interference
whereas another prefer entitlements. Negative rights protect liberty and positive promote
equality. Former shields the private realm whereas the latter reallocates the taxes. Patrons of
this distinction consider welfare rights as being upheld by resources forked out by the
government free of charge. They see classical rights in contrast as being exercised
autonomously by self-sufficient individuals.

Welfare rights are seen as promoting dependence on the government and eroding real
freedom by unfair confiscation of resources from the wealthy. This view is countered by
those who believe that positive guarantees are an improved understanding of requirements of
justice.

Where there is a right, there is a remedy. This means that rights may be enjoyed by
individuals as long as their wrongs are redressed by their government. This means that legally
enforced rights are necessarily positive rights. Rights are seen in light of the consequent
duties imposed on others to uphold the same. These duties are taken seriously only if their
dereliction is punished. Since rights are upheld by the public purse, rights are public goods.
Therefore, all rights are positive rights.

AMARTYA SEN: FREEDOMS AND NEEDS

The author establishes the interconnectedness, inter-dependence between the rights and needs
i.e. the CPR and the ESCR. He rejects the argument of a negative correlation between the two
rights, or the supposed advantages of a hard state in ensuring economic development. There
is nothing to indicate that economic and social policies are inconsistent with greater
democracy that they need to be sustained by the elements of authoritarianism, like in South
Korea. To ensure fulfilment of needs, there must be open debates, discussions etc. which are
in turn ensured by insistence upon political rights. The connection between these rights is
therefore a positive one. Whether and how a government responds to intense needs and
sufferings may well depend on how much pressure is put on it which in turn depends on the
exercise of political rights (voting, criticizing, protesting etc.)
The author then takes the example of famines that are usually seen in states governed by
authoritarian rulers, in the absence of any elections, opposition parties, open forums for
discussion. Here the leaders are least accountable to the people and do not suffer political
consequences of incidents such as famines. In case of democracies, the effect/penalty of
famines spreads to the ruling groups. Further the issue of information also differentiates the
different political systems. The presence of a free press and opposition parties are considered
the best early warning system in the face of a famine. Although a democracy like India has
been able to eradicate the danger of famines, the lesser evils such as non-extreme hunger,
persistent illiteracy, gender inequalities etc. still exist and need a deeper analysis with a
greater and more effective use of mass communication and political participation.

SMITA NARULA: BROKEN PEOPLE- CASTE VIOLENCE AGAINST INDIAS

UNTOUCHABLES

In many Indian villages that stay entirely neglected and segregated on the basis of caste,
about 160 million people lead a precarious existence. These untouchables or the broken
people are discriminated against and the national legislation and constitutional protections
serve only as a mask for social realities.

Social disabilities suffered by these people by reason of birth include, living in a separate
section at the outskirts of the village; denial of access to same temples, stalls, toilets, etc.
Most live in extreme poverty, with no land and opportunity for better employment or
education. Only a minority are benefitted from the policy of quotas in education and
government jobs. They are relegated to the most menial of jobs and their employers
frequently use caste as a cover for exploitative economic arrangements. Dalit women are the
worst sufferers, a victim of all caste, class as well as gender. They are regular victims of
sexual abuse and their plight illicit minimal attention.

The rights and protection of these people is rarely enforced. Those responsible for the
atrocities are rarely prosecuted. The political mobilization seen in the 1980s that led to the
emergence of several powerful interest groups bypassed Dalits. With no access to political
organisations and reforms, Dalits have been seen to retaliate in two particular manners:
peaceful protest and armed struggle. This has seen a backlash from the upper castes, even the
police officials have been seen arresting Dalit activists for legal activities. This reflects clear
political motivation on their part. These activists are also charged as terrorists and threats
to national security.

For any challenge to the social order, entire Dalit villages are penalized. For individual
transgressions they suffer social boycott through loss of employment, access to water,
grazing lands, ration shops etc. This really means destitution and starvation.

For those at the bottom of the hierarchy, caste is a determinative factor for the attainment of
social, political, civil and economic rights.

J. DREZE AND AMARTYA SEN: HUNGER AND PUBLIC ACTION

For beating persistent hunger and deprivation, public support plays a crucial role. This is
evidenced not only by the achievements of the developing countries but also by the
experiences of the developed nations as seen in the increased longevity in Britain during the
decades of the world wars. Public action is not just public delivery and state initiative but also
public participation in social change. Public participation as against government policy has
positive roles in both collaborative and adversarial ways. Collaborative aspect of public
participation is seen in campaigns, drives, operations, and other cooperative efforts. For the
government to act appropriately, adversarial aspects of public participation become relevant.
These are seen in the form of political activism, journalistic pressures, public criticism etc.
Famines, deprivations etc. need both these sorts of participation to be successfully combated.

The importance of public action does not preclude the importance of incentives. Incentives
are a part of public action. Incentives are not only those that offer profits in the market but
also those that encourage governments to implement well-planned policies, induce families to
reject discrimination within households, inspire public to cooperate etc.
 STEINER AND ALSTON: JUSTICIABILITY AND THE ROLE OF COURTS IN
DEVELOPING ECONOMIC AND SOCIAL RIGHTS

Accountability of governments and availability of remedies for violation of rights are basic
elements of international human rights law. Justiciability is whether the courts can uphold
these rights. This is varied in case of a democracy and an authoritarian regime.

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS NO. 9

There exists a duty upon government to give effect to the covenant by all appropriate
means, by adopting a broad and flexible approach. This flexibility must coexist with the
obligation upon each state party to use all the means at its disposal. Further the norms within
the covenant must be recognized by the states in their domestic legal order with appropriate
means of redress available to individuals and groups.

The right to an effective remedy need not only mean a judicial remedy. Administrative
remedies are also considered adequate if accessible, affordable, timely and effective. But
these are in addition to judicial remedies, which are necessary. In case of CPR judicial
remedies are taken for granted, whereas this is not the case for ESCR despite many
provisions that are ready for implementation. Justiciability has to be contrasted with self-
executing norms. Justiciability refers to those matters that may be appropriately resolved by
the courts whereas norms that are self-executing mean those norms that are capable of being
applied by courts without further elaboration. Where it is argued that allocation of resources
should be left to the political authorities it is also said that since courts have been experienced
with matters with important resource implications, they may not be completely ruled out.
Therefore to keep ESCR out of the reach of courts would be arbitrary and curtail the courts
capacity to protect rights of the most vulnerable.

CECILE FABRE, CONSTITUTIONALISING SOCIAL RIGHTS

It is claimed that the judiciary should not adjudicate upon social rights since these are beyond
its competence and legitimacy. Social rights are the moral rights of a democratic majority to
allocate resources as they see fit. The legitimacy of the judiciary is absent in this regard
because:

1. It would have to interfere with the drawing of the budget, thereby encroaching upon
one of the main prerogatives of the legislature. In this regard, the judiciary has two
 courses of action: (a) to ask the government to implement welfare policies or to
allocate resources in a way respecting peoples social rights; (b) drafting policies itself
to ensure allocation of resources.
2. Resources are scarce and the interests protected by social rights are numerous
therefore likely to conflict. It is therefore a difficult decision which will shape the way
the society looks. Only the elected representatives of the people should be allowed to
make these choices.

If the judiciarys powers include the adjudication of conflicts between interests protected by
negative rights, such as privacy v. right to freedom of speech, it amounts to protecting the
value of autonomy over attacks by democratic majority. If it can protect autonomy, then it
can also protect the social rights that safeguard peoples autonomy.

As to the question of the competency of the judges, it is opined by some that they do not have
the adequate training to decide whether or not funds have been allocated appropriately by the
government. Although increasing assessment of allocation of resources on education,
housing, health etc. in the UK evidences that the judges are not reluctant to adjudicate social
rights. These judgements are also taken into account by the governments. This shows that this
adjudication is done with great degrees of success.

Even if it is argued that this adjudication requires specific skills, and that violation in
individual cases is nearly impossible to assess, the same does not reject the
constitutionalization of social rights entirely. Also it is suggested that there are better ways of
protecting social rights than on an individual level, such as by group action; whereby
associations of homeless people (e.g.) would be able to challenge government housing
policies on grounds of unconstitutionality. Even constitutional judicial preview of law as in
case of France or Ireland, may be provided.

UPENDRA BAXI, JUDICIAL DISCOURSE: THE DIALECTICS OF THE FACE

AND THE MASK

1. Epistolary jurisdiction where the letters written by ordinary citizens to courts get
converted into writ petitions. These letters allege violation of rights of the
impoverished groups of Indian society. With this method, access to justice has been
fully democratised.
 2. Collection of social data and legal evidence concerning the plight of these
impoverished groups. Commissions of social scientists, public citizens, are engaged in
examining the conditions violative of peoples rights. Reports are commissioned at
state expense and universities and institutes are being increasingly engaged to
function as commissions.
3. Compensation and rehabilitation for victims deprived of their fundamental rights now
constitute a constitutional right. SC issued directives for the humane treatment of
prisoners, undertrials etc. Rehab to victims of the Bhagalpur blinding case and the
constitutional validity of the Bhopal Act declared to provide monthly interim relief
are few such initiatives.
4. Development of constitutional jurisprudence itself is an important feature of PILs.
Humans have certain rights even if not expressly provided in the constitution like the
right of the inmates to dignity and immunity from cruel, inhuman and degrading
treatment. Its jurisprudence replies upon civilized jurisprudence where the
administration acts according to the law and the constitution.
5. SAL processes have led to the taking over of certain administrative regimes that have
proved to be unable to work in accordance with law and the constitution. These
include the Agra Protective House for Women where the judiciary has taken over the
working for the last ten years.

AUDREY CHAPMAN, A NEW APPROACH TO MONITORING THE

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL
RIGHTS

This article discusses the importance of developing comprehensive statistical indicators as a

means by which to monitor compliance with the ICESCR. Monitoring is central to the
realization of the rights enumerated in the covenant. Progressive realization the current
standard used to assess the performance of state parties, renders economic, social and cultural
rights very difficult to monitor. A violations approach constitutes a more feasible
alternative.

There are five preconditions to monitoring the degree to which the countries have
implemented these rights:
 1. Specific components of each enumerated right and the associated obligations of state
parties
2. Performance standards related to each of these components
3. Collection of relevant data and their disaggregation on various factors such as sex
4. Development of a computerized information monitoring system for processing data
5. Analysis of these data to assess a countrys performance

The progressive realization complicates the methodological requirements outlined above,

since the same are pivoted upon the maximum available resources. These are not uniform and
create a multiplicity of performance standards. To evaluate the trend of progressive
realization of these rights, comparable statistical data has to be collected from several
periods.

PHILIP ALSTON, INTERNATIONAL GOVERNANCE IN THE NORMATIVE

AREAS

Alston seeks to distinguish between benchmarks and indicators.

He opines that the most useful approach to overcoming the lack of a national-level action in
relation to these rights is that of benchmarking.

INDICATORS

These are essentially statistical. Their need for objectivity, quantifiability, accuracy requires
technical expertise. Expertise is also required for interpretation such that the gaps in this
process are filled. Even the gathering of this data requires resources and technical expertise.

BENCHMARKS

These are targets established by the government via consultative processes, in relation to
economic, social and cultural rights and obligations. These are partly quantitative and partly
qualitative. They are linked with specific time frames. These differ from one country to
another. These are not dependent upon the availability of a technically accepted indicator or
of detailed statistical data linked to that indicator. Benchmarks are more specific and tailored
to a specific context and are firmly rooted into the human rights framework. They should be
consultative rather than technocratic with opportunity to civil society and social partners to
give inputs. Benchmarks, unlike indicators, should have a mechanism of accountability which
leads to a remedial response in case of failure. This should be with domestic consideration
and allow individual participation in monitoring and evaluation processes.

CPR should not be an end in itself but rather a means of facilitating realization of ESCR.

UNIVERSALISM AND CULTURAL RELATIVISM

The universalism and cultural relativism of human rights is constantly debated. Alternative
understandings of these rights are cast in related ways such as absolute rights v. contingent
rights or imperialism v. self-determination of people. This weakens the concepts of national
sovereignty and domestic jurisdiction that earlier enjoyed a strong holding.

Partisans of universality claim that international human rights like right to equality, physical
security, free speech, freedom of religion and free association etc. are same everywhere;
although it must be conceded that the same rights allow for culturally influenced forms of
implementation or realization.

Advocates of cultural relativism claim that rights and rules about morality are encoded into
the cultural context and vary with traditions and customary practices. Therefore they
invariably differ. Supporters of this view stress on the impressive diversity in cultures and
the notion of right and wrong. Important consequence of this diversity is that no transcendent
or transcultural ideas of rights can be imposed by one culture upon the other.

Human rights instruments are on the universalist side of the debate. UDHR and the two
Covenants speak in universal terms. No definition of a right or a limitation clause lays down
any explicit concession to cultural variation. These may suggest the cultural imperialism of
the West. This is seen as destructive to the diversity of cultures and a path towards cultural
homogenization. This is an old debate, where the West has blamed the Communists for
violating basic civil and political rights and the West in turn is blamed for its blatant breach
of ESC rights. Although this debate ended with the Soviet Union the current debate is more
on the lines of developed versus the developing countries or based on religious framework.
 PANNIKAR

Pannikar starts his comment by saying that the entire question of universality of HR is itself
not a universal one. Through his article is acknowledges that HRs are not universal but claims
that this does not imply that the same should not be made universal.

He presents both sides of the debate. Where on one side the introduction of this concept into
another culture is seen as a continuation of a colonial syndrome it is important to understand
the constructs of one culture from that of another. He calls for searing a homeomorphic
equivalent to the concept of HR. For instance, if HR is taken to be the basis of exercise and
respect of human dignity, an equivalent for the same must be found in another culture.
Human rights therefore need to be seen as windows of different cultures, where one must
peer out of ones own window to see another.

Assumptions of the Western Concept

There are three assumptions on which the entire concept of HR is based. These are as
follows:

1. Universal human nature

This is connected with the concept of natural law. But the Declaration of HR implies that:

(i) Human nature must be knowable

(ii) Human nature is known by a universal organ of knowledge such as reason and not
a subjective religion, faith etc.
(iii) Man is the master of himself and the universe

2. Dignity of the individual

Each individual is absolute and irreducible. He is an end in himself and a kind of absolute.
For e.g. the concept of Atman amongst Bhakti saints. Here the individual is seen as separate
from the society, which is a superstructure (Marxian philosophy).

3. Democratic social order

Society is not seen as a hierarchical order founded on divine will or law. It is a sum of free
individuals founded on a social contract. It is not seen as a family, but a necessary evil run by
the consent of individuals. Implying:
 (i) Every individual is seen as equally important
(ii) Society is nothing but the sum total of the individuals
(iii) Rights and freedoms of the individuals can be limited only when they impinge
upon the rights and freedoms of other individuals

Cross-Cultural Reflections

Pannikar claims that no idea is as such universal but applicable only to the place of its
conception. Its extrapolation beyond this place of origin needs to be extrapolated. He lays
down certain conditions that need to be established for a concept to become universal.

1. Must be the universal point of reference for any problem regarding human dignity
2. It should displace all other homeomorphic equivalents and be pivotal to social order-
which means that even the original culture of HR needs to become a universal culture

To assume that without the explicit recognition of Human Rights life would be chaotic is to
say that without belief in God there would be anarchy. There is no trans-cultural value
because values exist only in a given cultural context. to believe in such a value is to assume
that all are working towards a rational and organized modernity like the Western
industrialized world. But a cross cultural critique is possible. This is by trying to understand
and criticize one particular human problem with the tools of understanding of the different
cultures concerned.

Assumptions reconsidered:

1. Universal human nature

Nature does not need to be segregated and fundamentally distinct from the nature of all living
beings, entire reality. Exclusively HR would be seen as a violation of Cosmic Rights, the
rights of the nature. Further introduction of HR into another culture would act as a Trojan
Horse.

2. Dignity of the human person

Pannikar differentiates an individual from a person. He opines that an individual is just an

abstraction and a person is inclusive of his ideas, clan, parents, belongings, etc. Therefore,
hurting a person may amount to damage to the person hurting as well. If an individual is a
single knot, a person is a fabric. No limits to a person are fixed but depend upon his/her
personality.

3. Democracy

Although a great value and better than dictatorship, imposing democracy on people amounts
to tyranny since HR is exclusively related to democracy. HR is a legal device for the
protection of minority. Any violation of HR can be claimed not independently but as part of a
whole. (???)

Indian Reflection

In the Indian context, the starting point is not the individual but the whole complex concept
of Real. An individuals duty is to maintain his rights and find ones place in relation to
society, cosmos, and the transcendent world. Right of survival is only so far as the individual
performs his duty of maintaining the world. Rights are seen as a participation in the entire
metabolic function of the universe.

If you have the right to eat the animal lower in your food chain, you also have the duty to
allow yourself to be eaten by a higher animal in the hierarchy.

Pannikar gives two extreme scenarios, one wherein individual rights are too absolute and
another where they are too subjective and vary with particular situations. He disagrees with
both and believes that no theory at present can unify contemporary societies.

Conclusion

Pannikar concludes by stressing that HR are imperative. Cultures do need to make room for
themselves so as not to be steam rolled. But adoption of foreign cultures is not value free and
if HR is adopted so have to be the checks to keep it in control. We have already incorporated
several western concepts in our culture today.

ABDULLAH AHMED AN-NAIM, HUMAN RIGHTS IN THE MUSLIM WORLD

 RHODA HOWARD: DIGNITY, COMMUNITY, AND HUMAN RIGHTS

The author suggests that human rights are a modern concept such that most human societies
have not known the conceptions of human rights. Human rights are a moral good that one can
accept on an ethical basis although to seek an anthropological consensus on such rights is to
confuse it with concepts such as rights, dignity, and justice. One may find many affinities,
analogues, precedents to these HRs in cultural and religious contexts although none like the
actual concept of HR which is a modern and a radical departure from status based,
hierarchical societies.

HRs are now universally acceptable due to the social evolution of the entire world towards
state societies.

ASIAN DEBATE

BILHARI KAUSIKAN, ASIAS DIFFERENT STANDARD