Human Rights: Their Nature, Indivisibility, State Obligations, and Limitations | Daily News

Human Rights: Their Nature, Indivisibility, State Obligations, and Limitations

Part I

A fundamental feature of democratic Constitutions is the protection of human rights through constitutional guarantees. The establishment of the United Nations in 1945 revolutionalized human rights protection. From a subject that was treated under classical international law as being an exclusively domestic matter, human rights protection became a subject that came within the purview of the international community. Sri Lanka is a signatory to the so-called International Bill of Rights which consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These Covenants are legally binding treaties whose ratifying States pledged themselves to observe the specific rights enumerated in the instruments.

With the exception of the pursuit of peace and environmental concerns, there appears to be no other cause the United Nations is more closely identified with than the cause of human rights. Concern for human dignity is written into its Charter and built into the operating structures of the organisation. The Preamble of the United Nations Charter reaffirms the faith of the peoples of the United Nations “in fundamental human rights, in dignity and worth of the human person, in the equal rights of men and women……” and proclaims their determination ‘to promote social progress and better standards of life in larger freedom’.

Nature of Human Rights

Human rights could be generally defined as those rights which are inherent in our nature and without which we cannot live as human beings. Human rights and fundamental freedoms allow us to fully develop and use our human qualities, our intelligence, our talents and our conscience and to satisfy our spiritual and other needs. They are based on mankinds’ increasing demand for a life in which the inherent dignity and worth of each human being will receive respect and protection. The denial of human rights and fundamental freedoms not only is an individual and personal tragedy, but also creates conditions of social and political unrest, sowing the seeds of violence and conflict within and between societies and nations. As the first sentence of the UDHR, states, respect for human rights and human dignity ‘ is the foundation of freedom, justice and peace in the world’.

The UDHR is the basic international pronouncement of the inalienable and inviolable rights of all members of the human family. The Declaration was proclaimed in a resolution of the General Assembly on December 10, 1948 as the ‘common standard of achievement for all peoples and all nations’ in respect for human rights. It lists numerous rights - civil, political, economic, social and cultural- to which people everywhere are entitled. Originally the Universal Declaration was conceived of as a statement of objectives to be achieved by Governments and as such, was not part of binding international law. However, the fact that it has been accepted by so many States has given it considerable moral weight. Its provisions have been cited as the justification for numerous United Nations actions, and have inspired or been used in many international conventions.

The UDHR

The first two Articles of the UDHR emphasize that all human beings, without distinction, are born free and equal in dignity and rights and set out the basic principles of equality and non-discrimination in the enjoyment of human rights and fundamental freedoms. The next 19 Articles deal with the civil and political rights to which all human beings are entitled. Next 7 Articles (22 to 28) deal with economic, social and cultural rights. In accordance with Article 28, everyone is entitled to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized. Article 29 states that everyone has duties to the community in which alone the free and full development of one’s personality is possible. These rights and freedoms may not be exercised contrary to the purposes and principles of the United Nations. The final Article states that nothing in the Declaration may be interpreted as implying for any State, group or person a right to do anything aimed at destroying the rights and freedoms set out in the Declaration.

The ICCPR and the ICESCR

The International Covenants on Human Rights (the ICCPR and the ICESCR) both of which came into force in 1976, are treaties whose State parties - i.e, nations which have formally agreed to abide by their provisions- undertake to respect, ensure and take steps for the full achievement of a wide range of rights. These two Covenants recognize and define in more detail most of the rights set out in the UDHR, and deal with some additional rights as well. Each Covenant also sets up a mechanism through which United National bodies oversee the implementation by State parties of the rights protected.

The ICESCR

The Covenant consists of a preamble and 31 Articles First the Covenant lays down the principle that ‘all peoples have the right of self- determination’. This means, the Covenants explains that they have the right to freely determine their political status and freely to pursue their economic, social and cultural development. They have the right, for their own ends, freely to dispose of their natural wealth and resources. The Covenant also provides that its States parties shall ensure to all individuals within their territories without discrimination, all the rights listed in the Covenant. The rights recognized by the Covenant include the right to work, free choice of jobs, to just and favourable conditions of work, to equal pay for equal work, to safe and healthy working conditions, and to rest and leisure. The right to form and join trade unions, the right to strike, and the right to social security including social insurance, are also recognized. Protection and assistance are also to be provided for the family and special protection accorded to mothers and children. The Covenant states that an adequate standards of living is also everyone’s right and this includes adequate food, clothing and housing. The fundamental right of everyone to be free from hunger is specifically recognized. Everyone has the right to the highest attainable standard of physical and mental health and to an education.

State parties are to provide free and compulsory primary education; There should be arrangements for secondary education to become available and accessible to all. There should be equal access to higher education. Parents and legal guardians should be free to choice schools for their children and to ensure that their religious and moral education is provided for. Everyone has the right take part in cultural life and enjoy the benefits of scientific discoveries. Steps are to be taken to conserve, develop and defuse science and culture. Freedom of scientific research and creative activity is to be respected and everyone has the right to enjoy the benefits of his own research and creative activity.

The ICCPR

Like the ICESCR, the ICCPR begins by stating that all peoples have the right of self-determination and may freely dispose of their own natural wealth and resources. Article 2 of the Covenant provides that each State party shall ensure the rights recognized in the Covenant without discrimination to all individuals within its territory.

The Covenant guarantees to everyone the right to life. No one shall be arbitrarily deprived of his or her life. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; no one shall be held in slavery; no one shall be subjected to arbitrary arrest or detention. Anyone arrested shall be informed at the time of arrest, of the reasons for the arrest and anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other legally authorized person; anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

The Covenant also guarantees that all persons deprived of their liberty should be treated with humanity and that no one shall be imprisoned merely on the ground of inability to fulfill a contractual obligation. The Covenant provides for liberty of movement - including the right to leave a country - and freedom to choose a residence. It places limitations upon the expulsion of aliens lawfully in the territory of State party. Provisions are made for the equality of all persons before the courts and for guarantees in criminal and civil procedures. Retroactive criminal legislation is prohibited and the right of everyone to recognition as a person before the law is guaranteed. Arbitrary or unlawful interference with an individual’s privacy, family, home or correspondence is prohibited.

In addition, the right to freedom of thought, conscience and religion and to freedom of expression - including the right to seek, receive or impart information - are recognized and the Covenant provides for the prohibition by law of any propaganda for war or any advocacy or national, racial or religious hatred that constitutes an incitement to discrimination, hostility or violence. The right of peaceful assembly and the right to freedom of association are recognized. The right of men and women of marriageable age to marry and to found a family and the principle of equality of rights and responsibilities of spouse as to marriage, during marriage and at its dissolution are also recognized. The right of every child without discrimination, to necessary measures of protection on the part of his family, society and the State is recognized, as is the child’s right to acquire a nationality. The right of every citizen to take part in the conduct of public affairs, to vote and to be elected and to have access on general terms of equality, to public services in his country are recognized. All persons are equal before the law and are entitled to equal protection of the law. Finally, measures for the protection of such ethnic, religious and linguistic minorities as may exist in State parties to the Covenant are called for. The Covenant obliges each country which is party to it to ensure that should someone’s rights be violated, he or she will be given an effective remedy within that country.

All persons living in a State which is party to the both Covenants or who are subject to that State’s jurisdiction, are to enjoy the rights guaranteed in the Covenants, without distinction as to raise colour, sex, language, religion, or political or other opinion, natural or social origin, property, birth or other statutes. The principle of equality and non- discrimination is basic not only to the Covenants, but to all United Nations efforts to promote human rights.

(The writer is a Retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney- at-Law with Ph.D. in Law as well). 


 

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