NATURE AND CONCEPT OF Human Rights

1. Prof (Dr). T.S.N.Sastry Head, Dept of IPR & Dean (Academic & Planning) Tami Nadu Dr. Ambedkar Law University No 5, Green Ways Road, Chennai 28 tsnsastry@gmail.com NATURE AND CONCEPT OF Human Rights

2. Definition and Classification • Human Rights are commonly understood as being those rights which are inherent in the mere fact of being human. • Human Rights are different from other rights in two respects. Firstly, They are characterised by being: Inherent in all human beings by virtue of humanity; Inalienable and Equally applicable to all • Secondly they impose duties on the state and its organs and not on individuals.

3. The relationship between the individual and the State depends upon two ways. One is “Vertical Effect” wherein it is the duty of the State to establish rules for the relationship between the individual and the State • The other is “Horizontal Effect” a government has not only a duty to refrain from violating human rights, but also has a duty to protect the individual from infringements by other individuals.

4. Terminology of Rights • Rights range from a broad spectrum from right to life to the right a cultural identity. Further the human rights are classified as Classic and Social Rights • Classic Rights are often seen to require the non-intervention on the part of the State (Positive obligation) Social Rights impose a duty These rights further impose obligation on the state not to interfere with the individuals exercise of the right. Privay, Right to Food, Shelter etc

5. Civil Rights are the first 18 Rights • Political Rights 19 to 21 Freedom of Expression and Association and Assembly • Economic and Social Rights 22 to 26 Right to property, work trade union and other social rights • Cultural Rights 27 and 28 freely participate in the cultural life and scientific advancement and the right to protect moral and material intrests

6. There exist a fundamental difference between economic, social, cultural and civil and political rights According to this view, the civil and political rights are considered to be expressed in very precise language, imposing merely negative obligations which do not require resources for their implementation • The other rights are considered to be expressed in vague terms, posing only positive obligations conditional on the existence of resources and therefore involving a progressive realisation.

7. Sources of human rights • International Conventions, whether General or Particular; • International Custom as evidence of General Practice accepted as law • General Principles of Law recognised by civilized states • Subsidiary means for the determination of rules of law such as judicial decisions and teaching of highly qualified publicists

8. General Principles Relevant to HR • Be consistent with the existing body of International Human Rights Law • Be of fundamental character and derive from the inherent dignity and worth of human person • Be sufficiently precise to give rise to identifiable and practicable rights and obligations • Provide where appropriate, realistic and effective implementation machinery including reporting system • Attract broad international support

9. Though there is no consensus on these principles they must qualify to be acceptable universally and recognised legally and relevant for the individual for their enjoyment. • Education is a must for their Universal enjoyment • All kinds of Discrimination need to be eliminated

10. Treaty Obligations • All treaties will come into force only when they are ratified by all states. If any Reservations and declarations are made then they can not be enforced easily. • Some treaties like the Genocide Convention (1951) explicitly prohibits reservations and the same has been stated in Art 19 of the Vienna Convention on the Law of Treaties prohibiting States not to defeat the purpose of the treaty

11. Art. 57 (1) of the European Convention on Human Rights prohibits General Charter of reservations. However, the same is not applicable to international conventions and covenants. For example, The CEDAW convention is the victim of reservations by states for many of its provisions which defeats the purpose for which it was adopted

12. DECLARATIONS • Some Conventions allow states parties to make declarations. For example Art 41 of the ICCPR stipulates • Restrictions and Limitations • Art 4 of ICESCR reads: The States parties to the present Covenant recognise that in the enjoyment of those rights provided by the State in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting general welfare in a democratic society

13. Art 32 of the American Convention on HR The rights of each person are limited by the rights of others, by the security of all, and by the just demands of the general welfare in a democratic society. • African Charter on Human and People’s Rights does not contain a specific provision on restrictions but Art 27 (2) duties has come to play the role of a general limitation clause providing: The rights and freedoms of each individual shall be exercised with due regard to the rights of others, collective security, morality and common interest.

14. The limitations or restriction should not jeopardize the essence of the right concerned; • The limitation must be interpreted strictly in the light and context of the particular rights; • The limitation must be prescribed by law and be compatible with the with the object and purpose of the instrument • The restriction must be based on law

15. The restriction must be necessary; there must be pressing social need, assessed on a case by case basis. That the law would be useful is in itself not sufficient; it must be consistent with other protected rights. In some treaties, the condition that it be necessary ins added; and • The restriction must be justified by the protection of a strictly limited set of well defined public interests, which usually includes one or more of the following grounds national security; public safety; public order the protection of health and morals and the protection of the rights and freedoms of others

16. DEROGATIONS • Several conventions have no derogation clauses. In case if such derogations are to be met they should comply with • There must be a war or general state of emergency threatening the life of the nation; • The State of emergency must be officially proclaimed; • Measures may not go beyond the extent strictly required by the situation;

17. Measures may not be inconsistent with other obligations under international law and • Measures may not be discriminatory solelyon grounds of race, colour, sex, language, religion or social origin. • The interpretation of a treaty is solely depend o the VCLT provisions of Art 31 to 33 The treaties need to be interpreted in Good faith; context of the treaty and other reasons which many not be manifestly absurd or unreasonable.

18. THE EFFECTIVE RULE • The interpretation should make the protection effective. As the Intern American Court has stated : The object and purpose of the American Convention is the effective protection of human rights. The Convention must, therefore, be interpreted so as to give it its full meaning and to enable the system for the protection of human rights entrusted to the commission and the court to attain its :appropriate affects:

19. THE EVOLUTIVE INTERPRETATION • Human Rights not being static they need to be interpreted according to the contemporary conditions.In Loizidou v. Turkey where the European court held : the convention is a living instrument which must be interpreted in the light of present day conditions ins firmly rooted in the courts case law and said the intentions of the convention need to be interpreted as per intentions of the authors

20. The Rule of Autonomous Interpretation • A property right in human right law is not automatically a property right as defined in national law, In human rights the concept is much broader. A wrong doing is not a criminal offence because it has been defined as such in a national criminal code. Both the Inter American and European courts insisted in interpreting their meaning in terms of the respective conventions

21. In Mayagna (sumo) Awas Tingni Community V Nicaragua, the Inter American Court explained the concept: • The terms of an international human rights treaty have an autonomous meaning, for which reason they cannot be made equivalent to the meaning given to them in domestic law. Furthermore, such human rights treaties are live instruments whose interpretation must adopt to the evolution of the times, and specifically, to current living conditions. No provision may be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any state party or by virtue of another convention to which one of the said states is a party.

22. Summary • From the above discussion it is clear that the concept of human rights is certainly wider than the national ambit of legislative narrow interpretations. Hence it is the duty of the states and the individuals to follow it and propagate it to a great extent without any fear or favour or any kind of dissidence.

23. Thank you