Human Rights Project

International Bill of
Human Rights & its
Scope

Dr. Amritpal Kaur Raja Sanmanbir Singh

Assistant Professor Roll No. 1892
University Institute of Legal Studies 1st Semester
Panjab University Master of Laws
Acknowledgment

Apart from the efforts of myself, the success of any project depends largely on the
encouragement and guidelines of many others. I take this opportunity to express my gratitude
to the people who have been instrumental in the successful completion of this project. I would
like to show my greatest appreciation to our professor, Dr. Amritpal Kaur. I have felt motivated
and encouraged every time I have attend her class. I would also like to thank my classmate,
Ravneet for her constant guidance and support, which was vital for the completion of this
project.

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Introduction
The idea for the protection for human rights and fundamental freedoms was conceived in the
Atlantic Charter, 1941 & Declaration of United Nations 1942. When the founders of United
Nations met at San Francisco Conference in 1945 to draft the Charter of United Nations, Latin
American States, in particular, wanted the conference discuss international bill of Human
Rights. Panama wanted it to be incorporated as part of Charter. President Truman of US in his
Closing Speech to San Francisco Conference stated that:

“We have good reason to expect framing of International bill of Rights, expectable to all nations
involved... The Charter is dedicated to the achievements and observance of HR & Fundamental
Freedoms. Unless make these objectives for all men and women everywhere without regard to
race, language or religion, we cannot have permanent peace & Security”

But the specific list of Rights could not be prepared due to lack of sufficient time and also
because superpowers were not interested in precise legal obligation & international action on
HR. As a result, the Charter contains number of Provisions which are of general in nature but
as such it does not contain specific provisions related to Human Rights. The few provisions for
the promotion and protection of Human rights and fundamental freedoms which are dealt are
limited and vague. Soon after, it was realized by many members that it should be obligation of
the international community to promote Human Rights.

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International Bill of Human Rights

After the UN Charter came into force, the most important task before UN was the
implementation of the principles of the universal respect for observance Human Rights &
Fundamental Freedoms for all without distinction as to race, sex, language or religion, as laid
down under Article 55 of UN Charter. In1946, ECSOC formally endorsed the view that the
purpose of UN with regard to promotion and observance of HR could be fulfilled only if the
provision was made for international bill of rights and for its Implementation. It was therefore
decided to prepare an International Bill of Rights to achieve the end. The General Assembly
referred this matter to ECSOC for study by the Commission on Human Right. The mandate
extended to the Commission on Human Rights was inspired by the desire to establish a
comprehensive system for the Promotion & protection of HR. The Commission in January
1947, appointed a Committee Known as Drafting Committee for preparation of the draft of Bill
of Rights.

The procedure for preparation of draft International Bill of Rights was also prescribed by the
ECOSOC. The Drafting Committee at its first Session, prepared a preliminary draft of
International Bill of Rights which was considered by the commission on Human Rights at its
Second session held from December 2 to 17, 1947. However due to the difference of the
opinion as to its form and Contents, the commission decided to apply the term “International
bill of Human Rights” to a series of document in preparation and established three working
groups. The commission therefore decided to draw up simultaneously two sets of documents
that is a draft declaration consisting of a declaration of General principles of Human Rights,
and draft convention, which would be convention on such specific rights as would lend
themselves to binding legal obligations. The commission along with the above two documents
also prepared a memorandum on the question of implementation. All three documents to be
known as International Declaration on Human Rights, International Covenants on Human
Rights and measures for implementation would together form the International Bill of Human
Rights.

In order to prepare the documents on these topics, the commission established three working
groups, while Considering the report of working groups, the commission considered the draft
declaration, and in somewhat less detail a draft covenant, but decided to take no action on any

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specific principles on or recommendations contained in the report of implementation. However,
it decided to forward the report of its Working Groups to the Governments for their comments

The Universal Declaration of Human Rights was adopted in 1948 & two International
Covenants were adopted 1966 codifying two sets of Rights outlined in Universal Declaration.
International Covenant on Civil & Political Rights and the International Covenant on
Economic, Social and Cultural Rights entered into force in 1976. Later, the general Assembly
also adopted two Optional Protocols to International Covenant on Civil & Political Rights:
Optional Protocol to the International Covenant on Civil & Political Rights in 1966 (Came into
force on March 23, 1976) and second Optional Protocol to the International Covenant on Civil
& Political Rights aiming at the abolition of Death Penalty in 1989 (came into force on July
11, 1991) and one Optional Protocol to the International Covenant on Economic, Social &
Cultural Rights in 2008 (came into force on May 5, 2013). The 2 International Covenants,
together with the Universal Declaration on Human Rights and the Optional Protocols
comprises of the International Bill oh Human Rights. Thus, International Bill of Human Rights
is a collective term applied to 6 Major International Instruments. These Documents have led
the foundation from which other treaties and Declaration have been adopted. Fundamental
Rights and freedoms contained in the International Bill of Human Rights have been further
elaborated in our 60 Human Right Treaties concerning Slavery, Genocide, Humanitarian Law,
the Administration of Justice, Social Development, religious tolerance, Cultural Cooperation,
Discrimination, Violation against Women & the statue of Refugees & Minorities. The
international Bill of Human Rights represent a Milestones in the History of Human Rights, a
veritable Magna Carta marking man kinds arrival at a vitally important phase: the conscience
acquisition of Human dignity and worth. Judges of the international Court of justice have
occasionally invoked principles contained in the Human Rights as a basic of their decisions.
National Court of many states have frequently cited principles set out in the Bill in their
Decisions.

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International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty
adopted by the United Nations General Assembly on December 16, 1966, and in force from
March 23, 1976. It commits its parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of assembly,
electoral rights and rights to due process and a fair trial. As of October 2009, the Covenant had
72 signatories and 165 parties.

The ICCPR is part of the International Bill of Human Rights, along with the Universal
Declaration of Human Rights (UDHR) and the International Covenant on Economic, Social
and Cultural Rights (ICESCR).

The International Covenant on Civil and Political Rights is monitored by the Human Rights
Committee (a separate body to the Human Rights Council which replaced the Commission on
Human Rights, under the UN Charter in 2006) with permanent standing, to consider periodic
reports submitted by member States on their compliance with the treaty. Members of the
Human Rights Committee are elected by member states, but do not represent any State.

The ICCPR has its roots in the same process that led to the Universal Declaration of Human
Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San
Francisco Conference which led to the founding of the United Nations, and the Economic and
Social Council was given the task of drafting it. Early on in the process, the document was split
into a declaration setting forth general principles of human rights, and a convention or covenant
containing binding commitments. The former evolved into the UDHR and was adopted on
December 10, 1948.

Drafting continued on the convention, but there remained significant differences between UN
members on the relative importance of negative Civil and Political versus positive Economic,
Social and Cultural rights. These eventually caused the convention to be split into two separate
covenants, "one to contain civil and political rights and the other to contain economic, social
and cultural rights." The two covenants were to contain as many similar provisions as possible,
and be opened for signature simultaneously. Each would also contain an article on the right of
all peoples to self-determination.

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The ICCPR came into force on 23 March, 1976 and India acceded it on 10 April, 1979.

Optional Protocols to ICCPR

(a) First Optional Protocol

The First Optional Protocol is a supplementary treaty to the International Covenant on Civil
and Political Rights (ICCPR). It is procedural and provides a mechanism for the Human Rights
Committee, set up by the ICCPR, to receive and consider individual complaints against alleged
breaches of the Covenant by state party. The First Optional Protocol to the ICCPR was adopted
by General Assembly on 16th December, 1966 and it entry into force, 23rd March, 1976. Thus,
individuals who claim that their rights and freedoms have been violated, may call the State in
question to account for its actions, provided it is a party of the optional Protocol to the ICCPR.

Key Provisions of the First Optional Protocol to the ICCPR

• Establishes an individual complaints mechanism for the ICCPR;

• Parties agree to recognize the competence of the UN Human Rights Committee to consider
complaints from individuals or groups who claim their rights under the ICCPR have been
violated.

(b) Second Optional Protocol

The purpose of the Second optional Protocol is revealed by its full title, “aiming at the abolition
of the death penalty”. It was adopted by the General Assembly by its resolution 44/128 of 15
December 1989. The Preamble to the Second Optional Protocol reinforces the view that
abolition of the death penalty is a desirable and progressive human rights measure that
enhances human dignity and enjoyment of the right to life.

Key Provisions of the Second Optional Protocol to the ICCPR

Commits its members to the abolition of the death penalty within their borders, though Article
2.1 allows parties to make a reservation allowing execution for grave crimes in times of war.

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Structure of the Covenant

The Covenant follows the structure of the UDHR and ICESCR, with a preamble and fifty-three
articles, divided into six parts.

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right
to "freely determine their political status", pursue their economic, social and cultural goals, and
manage and dispose of their own resources. It recognises a negative right of a people not to be
deprived of its means of subsistence, and imposes an obligation on those parties still
responsible for non-self governing and trust territories (colonies) to encourage and respect their
self-determination.

Part 2 (Articles 2 – 5) obliges parties to legislate where necessary to give effect to the rights
recognised in the Covenant, and to provide an effective legal remedy for any violation of those
rights. It also requires the rights be recognised "without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status," and to ensure that they are enjoyed equally by women. The rights can
only be limited "in time of public emergency which threatens the life of the nation," and even
then no derogation is permitted from the rights to life, freedom from torture and slavery, the
freedom from retrospective law, the right to personhood, and freedom of
thought, conscience and religion.

Part 3 (Articles 6 – 27) lists the rights themselves. These include rights to:

 physical integrity, in the form of the right to life and freedom from torture and slavery
(Articles 6, 7, and 8);
 liberty and security of the person, in the form of freedom from arbitrary arrest and
detention and the right to habeas corpus (Articles 9 – 11);
 procedural fairness in law, in the form of rights to due process, a fair and impartial trial,
the presumption of innocence, and recognition as a person before the law (Articles 14,
15, and 16);
 individual liberty, in the form of the freedoms of movement, thought, conscience and
religion, speech, association and assembly, family rights, the right to a nationality, and
the right to privacy (Articles 12, 13, 17 – 24);

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  prohibition of any propaganda for war as well as any advocacy of national or religious
hatred that constitutes incitement to discrimination, hostility or violence by law (Article
20);
 political participation, including the right to the right to vote (Article 25);
 Non-discrimination, minority rights and equality before the law (Articles 26 and 27).

Many of these rights include specific actions which must be undertaken to realise them.

Part 4 (Articles 28 – 45) governs the establishment and operation of the Human Rights
Committee and the reporting and monitoring of the Covenant. It also allows parties to recognise
the competence of the Committee to resolve disputes between parties on the implementation
of the Covenant (Articles 41 and 42).

Part 5 (Articles 46 – 47) clarifies that the Covenant shall not be interpreted as interfering with
the operation of the United Nations or "the inherent right of all peoples to enjoy and utilize
fully and freely their natural wealth and resources".

Part 6 (Articles 48 – 53) governs ratification, entry into force, and amendment of the Covenant.

Human Rights Committee

The Human Rights Committee was established to monitor the implementation of the ICCPR.
It is composed of 18 independent experts with recognized competence in the field of human
rights. Committee members are elected for a term of four years and must be from countries that
have ratified the Covenant. The current members of the Committee come from: Algeria,
Argentina, Costa Rica, Egypt, France, Georgia, Germany, Israel, Japan, Romania, South
Africa, Suriname, Switzerland, The Netherlands, Tunisia, the United Kingdom, and the United
States.

The Human Rights Committee meets three times a year for sessions lasting three weeks,
normally in March at the United Nations headquarters in New York, and in July and October
at the United Nations Office in Geneva, Switzerland. Countries that have ratified the ICCPR
are obliged to report to the Committee every four years. Three to five countries are invited to

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present their reports at each session. The Committee examines the report and addresses its
concerns and recommendations to the country in the form of "concluding observations." The
Committee also publishes general comments on all treaty bodies, including the CCPR.

Implementation of ICCPR

Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to adopt
such laws or other measures as may be necessary to give effect to the rights recognized in the
present Covenant.” Countries that have ratified the ICCPR must takes steps in their own
jurisdictions to recognize the acceptance of this international covenant because, in
“international law, a signature does not usually bind a State. The treaty is usually subject to a
future ratification, acceptance, approval or accession.”

In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction,
Article 28 of ICCPR provides for a Human Rights Committee (Committee) to be established
for monitoring the State Parties’ implementation of the Covenant. State Parties are required to
submit reports to the Committee for review, on measures used to adopt and give effect to the
rights enshrined in the ICCPR.

As mentioned above, the First Optional Protocol allows victims of human rights violation to
be heard by the Committee. However, the ICCPR also provides in Article 41 that a State Party
who claims another State Party is not fulfilling its obligations to implement ICCPR, may make
written submissions to the Committee for consideration. Also, non-governmental organizations
(NGOs) may also participate in ensuring that values under the ICCPR are protected by
submitting ‘shadow reports’ and highlight areas for consideration by the Committee.

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  Reporting Procedure

A proper Reporting System is established under ICCPR to obtain the necessary information as
to the implementation of the provisions of the Covenant in the member States. In other words,
the reporting system performs the function of providing an authoritive information to the
Committee on the implementation of human rights.

 Inter-State Communications

The violation of human rights provisions by one Sate is the concern of the whole World. If the
provisions of the Covenant are not given effect by a State, other State Parties may make
complaints regarding the violation before the Human Rights Committee through pre-decided
manners.

 Conciliation Procedure

The conciliation procedure is adopted by the HRC in those cases of inter-state communications
where a matter referred to it is not resolved to the satisfaction of the State parties concerned.
In such cases, the Committee may appoint an ad hoc Conciliation Commission with the prior
consent of the State Parties concerned with a view to an amicable solution of the matter on the
basis of a respect for the Covenant.

 Individual’s Communications System

Individuals have also been given a right to make petitions before the HRC against the State
violating any of the rights provided in the Covenant on Civil and Political Rights. However,
the right does not find place in the Covenant itself. It is provided in the Optional Protocol on
Civil and Political Rights.

Communication by Ambrosini

The first case was considered by the HRC during the Seventh Session which was held
from July 30 to August 17, 1979. The communication was submitted by the Uruguayan
national residing in Mexico, on her own behalf as well as on behalf of her husband, her
step-father and her mothers. She alleged, with regard to herself that she was detained
in Uruguay from April 25 to May 3, 1975 and was subjected to psychological torture.

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She stated that she was released on May 3, 1975, without having been brought before
a Judge. She also claimed that her husband was detained on April 3, 1975, and
immediately thereafter subjected to various forms of torture, and her step-father was
arrested on October 22, 1975 and was held incommunicado until his detention was made
known in January 1976, and that her mother was arrested on January 20th, 1976 without
any ‘assistance to subversive association’, an offence which carried a penalty of two to
eight years’ imprisonment.

The Committee, acting under Article 5(4) of the Optional Protocol to the Covenant on
Civil and Political Rights, took the ‘view’ after ascertaining the facts that the State Party
was under an obligation to take immediate steps to ensure strict observance of the
Covenant provisions, and to provide effective remedies to the victims.

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International Covenant on Economic, Social and
Cultural Rights

The ICESCR has its roots in the same process that led to the Universal Declaration of Human
Rights. A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San
Francisco Conference which led to the founding of the United Nations, and the Economic and
Social Council was given the task of drafting it. Early on in the process, the document was split
into a declaration setting forth general principles of human rights, and a convention or covenant
containing binding commitments. The former evolved into the UDHR and was adopted on 10
December 1948.

Drafting continued on the convention, but there remained significant differences between UN
members on the relative importance of negative civil and political versus positive economic,
social and cultural rights. These eventually caused the convention to be split into two separate
covenants, "one to contain civil and political rights and the other to contain economic, social
and cultural rights." The two covenants were to contain as many similar provisions as possible,
and be opened for signature simultaneously. Each would also contain an article on the right of
all peoples to self-determination.

The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of
the right of self-determination, and shall respect that right, in conformity with the provisions
of the Charter of the United Nations.

The first document became the International Covenant on Civil and Political Rights, and the
second the International Covenant on Economic, Social and Cultural Rights. The drafts were
presented to the UN General Assembly for discussion in 1954, and adopted in 1966.

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Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights

The OP-ICESCR entered into force on 5 May 2013. It allows the CESCR to receive and
consider communications from individuals or groups who are victims of violations of any ESC
rights of the ICESCR under the jurisdiction of a State party to the Covenant. The Committee
will only consider a communication after all available domestic remedies have been exhausted,
unless domestic remedies are unreasonably prolonged.

Enforcement Mechanism of ICESCR

The ICESCR originally contained a single enforcement mechanism, which is set forth in
Articles 16 and 17. Article 16 requires state parties to submit “reports on the measures which
they have adopted and the progress made in achieving the observance of the rights recognized”
in the Covenant. Article 17 elaborates on this reporting requirement, providing that states will
file their reports in stages, in accordance with a programme established by the Economic and
Social Council, and that these reports may include “factors and difficulties” affecting the
fulfilment of the Covenant’s provisions. Two observations are worth noting about Articles 16
and 17. First, unlike the ICCPR which establishes a Human Rights Committee to monitor state
compliance, the ICESCR vests this authority in the Economic and Social Council. While the
Human Rights Committee is an expert body specifically charged with enforcing the ICCPR,
the Economic and Social Council is a political organ of the UN and does contain such expertise.
After the ICESCR came into force in 1976, it soon became clear that the Economic and Social
Council did not have the capacity to effectively monitor state compliance with the Covenant.
It, therefore, created the Committee on Economic, Social and Cultural Rights in 1985 to assist
with the reporting process. The Committee is comprised of eighteen experts who officially
meet for a single three-week session every year in Geneva. Under the current reporting
procedure, states must submit reports every five years according to detailed guidelines set forth
by the Committee. Second, the ICESCR’s monitoring is limited to the self-reporting of state
parties. There is no mechanism in the Covenant to receive or act upon complaints. This again
deviates from the ICCPR; the Human Rights Committee may examine complaints filed against
a state party either by other states or by individuals whose rights are violated by that state. On
10 December 2008, the UN General Assembly adopted the Optional Protocol to the ICESCR,
which would allow the Committee on Economic, Social and Cultural Rights to hear individual
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complaints. The Protocol came into force on 5 May 2013 and today includes 45 signatories and
15 state parties. Thus, while the Committee now has greater enforcement power, it does not
(yet) have the authority to receive individual complaints against a vast majority of states.

Committee on Economic, Social and Cultural Rights

The Committee on Economic, Social and Cultural Rights (CESCR) is the body of independent
experts that monitors implementation of the International Covenant on Economic, Social and
Cultural Rights by its States parties. The Committee was established on 28 May 1985 to carry
out the monitoring functions assigned to the United Nations Economic and Social Council
(ECOSOC) in Part IV of the Covenant.

All States parties are obliged to submit regular reports to the Committee on how the rights are
being implemented. States must report initially within two years of accepting the Covenant and
thereafter every five years. The Committee examines each report and addresses its concerns
and recommendations to the State party in the form of “concluding observations”.

In addition to the reporting procedure, the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights, which entered into force on 5th May 2013, provides the
Committee competence to receive and consider communications from individuals claiming
that their rights under the Covenant have been violated. The Committee may also, under certain
circumstances, undertake inquiries on grave or systematic violations of any of the economic,
social and cultural rights set forth in the Covenant, and consider inter-state complaints.

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Scope

It is to be noted that at the time of the adoption of the Universal Declaration of Human Rights,
there was no distinction between the two sets of rights. The Declaration had stated civil and
political rights, as well as economic, social and cultural rights. The distinction between the two
sets of rights came up later during the Cold War which resulted in the drafting of the two
covenants. However, there is a close relationship between the two Covenants which have
enumerated various civil and political rights and economic, social and cultural rights. It is
evident from the fact that the Preamble and Articles 1, 2, 3, and 5 are virtually identical in both
the Covenants. Preamble of both the Covenants recognize that these rights derive from the
inherent dignity of human persons. Article 1 of each Covenant affirms that all people have the
right to self-determination and by virtue of that right they are free to determine their political
status and to pursue their economic, social and cultural development. While Article 2 in both
the Covenants reaffirms the principle of non-discrimination, Article 3 stresses that States
should ensure the equal right of men and women to the enjoyment of all human rights. Article
5 of both the Covenants provided safeguard against the destruction or undue limitations of any
human rights and fundamental freedoms.

The relationship between the two Covenants was recognised by the International Conference
on Human Rights, which was held in Tehran in 1968. It declared in the final proclamation:
‘Since human rights and fundamental freedoms are indivisible, the full realisation of civil and
political rights without the enjoyment of economic, social and cultural rights is impossible’.
The General Assembly in 1977 reiterated in a resolution which stated ‘All human rights and
fundamental freedoms are indivisible and inter-dependent and equal attention and urgent
consideration should be given to the implementation, promotion and protection of both civil
and political, and, economic, social, and cultural rights.’

The international community must treat human rights globally in a fair and equal manner, on
the same footing and with the same emphasis. Civil rights such as right to equality, freedom of
speech and expression shall be meaningless in the absence of social and economic rights. It is
desirable, therefore, that the States should give equal emphasis to the rights stipulated in both
the Covenants in view of their inter-dependence.

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