Human rights v.

Fundamental rights

Definition

FR are those primary rights given to the citizen which are justifiable and are written in the
constitution.

HR are the basic rights which are inherent in a human from the very birth irrespective of the
caste, creed, religion, teritorry etc.

Scope

FR is country specific.
HR are universal in nature.

Guarantee

FR are constitutionally guaranteed.

HR are internationally guaranteed.

Enforcement

FR are enforced by the court of the land.

HR are enforced by the UNO.

ORIGIN

FR are originated from the views of a democratic society.

HR originate from the ideas of a civilised nations which are governed by international law.

Importance/ Significance of human rights

1.​ They lead to overall development of human beings. HR must be preserved, cherished
and be kept alive. They must be defended.
2.​ It is the essence of a meaning life.
3.​ HR also protect vulnerable groups.
4.​ HR also ensure that the basic needs of the humans are met. (Food, shelter, clothing)
5.​ It also ensures access to education.
6.​ It also ensures that there is a just and favourable condition provided for working and
consequently a just remuneration.

Whether human rights are legal rights?

Declaration of human rights defenders 1998

Article 2, para 1 and 2 makes it clear if human rights are legal rights or not.
Para 1 says that state has a duty to protect, preserve and implement the human rights.
Para 2 says that implement by taking legislative and administrative measures.
So HR are legal rights which are enforced.

Conventions

International Convention on civil and political rights 1966

International convention on economic, social and cultural rights 1966

It has been laid down in the preamble that state must give universal respect and observance of
human rights.

What is the philosophical foundation of human rights?

1.​ Stoic school of thought

The foundation of HR says that natural law. The law of nature has given the concept of
‘universal brotherhood’. It is the basic idea or foundation of HR.

2.​ The Greek philosophers

A.​ Plato
B.​ Aristotle
There are two important concepts-
Common good
Justice

Aristotle has emphasised on 3 concepts- justice, virtue and rights.

3. Medieval thinkers
A.​ Hobbes- he emphasised that the nature of state must be taken in its secular perspective.
B.​ Augustine - he emphasised on the concept of natural law.
C.​ John Locke
D.​ Rousseau

Locke and Rousseau both emphasised on the responsibility of the state to protect the rights of
the people

4. Jeremy Bentham (Utilitarian school of thought)

Another thinker in his school- JS Mill.
Both rejected the idea of natural law.

5. Contemporary thinkers
Robert Nozick
John Rawls
Micheal Oakshott

These viewers think that there needs to be a balance between both natural law and socialist
view.

Different perspectives of HR

1.​ Natural law perspective

This perspective had it’s foundation in Greek philosophy and it had developed in the 17th and
18th century. It was an antidote to the divine rights of the king. It was very important to realise
that HR are inherent and ore social in nature. The society tries to implement them. They are
universal in nature. HR are inalienable.
Criticism-
a.​ HR being pre social in nature is a misnomer. Unless they are implemented, it does not
make any difference.
b.​ HR cannot be absolute in nature. Every right has a condition.

2.​ Positivist perspective

This perspective was given in the later 18th century. It says that HR are the derivative of positive
laws of the state. Bentham says that human existence is dominated by pleasure and pain.
Human conditions can be improved by increasing pleasure and diminishing pain. The pleasure
can be increased by giving the people their due rights.

3.​ Libertarian perspective

This perspective is a criticism to the positivist perspective. It was supported by Robert Nozik,
John Rawls and Fredrick. According to Robert, men and women come together in the state of
nature and it is called a minimal state. Minimal state is a state which tries to ensure that the
morals are enforced. Rawls states that justice is the way of distributing rights and duties,
benefits and burdens among the individuals. According to him, this is called justice. Fredrick
says that human freedom is regarded a pre condition for order, virtue and progress of the
society.

4.​ Marxist perspective

This perspective talks about HR in relation to burgean economist economy. A society which is
moving very fast in its economy. He says that individuals will earn their rights according to their
abilities. A sense of an individual is that of a social being using his abilities to satisfy his social
needs. The true potential of a human right can only be realised in a classless situation.

HR’s historical perspective in India

1.​ Ancient India

Vedas and Brahmincal. More importance was given to the structure of ‘Dharma’. Even in the
time of Mahabharata, dharma was ordained for the development or advancement of human
beings. Even Bhagwat geeta gives more importance to righteousness and has defined it as
dharma. Upanishads speak of dharma as the foundation of the whole universe. Vedas and
smritis emphasised on universal brotherhood. Purans had written down clearly that doing good
to others is right but injuring someone is wrong. We have different sources like Narad smriti,
Arthashastra, Manu smriti. Ashokas were the one who proposed this concept.

2.​ Medieval India

During the Mughal rule- the rulers were fundamentalists and despotic and they forced the
Hindus to follow their own laws. They were treated very cruelly and were not considered at par
with others. Akbar followed a tolerant and non discriminatory policy.
Aurangzeb believed in converting the Kashmiri’s into muslims. The provision of bail and benefit
of doubt was also recognised.

During the Bhakti movement- They were philosophers who tried to reinstate natural law with
religious perver.
Tulsidas, Guru Nanak Devi ji, swami dayanand saraswati, raja ram mohan Roy, Kabir. Through
their following the natural law, they wanted people to follow the concept of dharma, unity and
enlightenment.

Sufism- They spread the concept of secularism in the sense of uniting the core principles of all
religions.

The indian culture was known as human culture because it was trying to be comprehensive so it
can suit the needs of all irrespective of caste, creed, religion etc.

3.​ Modern India

During the British rule, there was a void of freedom and extensive exploitation.
It is only after the colonial rule, when we started fighting for independence. Raja ram mohan
Roy was knows as the father of human rights movement in India. He was a rationalist thinker
therefore he became a critique to some important rituals. Eg- sati, child marriage, polyagmy etc.
he favoured widow remarriage and women rights to property.

Indian national congress tried to pass a bill in 1895. Few rights they wanted to claim for people
were right to freedom, property, equality.
Nehru committee report 1928.

Constitution 1950 which ensures basic rights of people

a.​ Preamble
b.​ Fundamental rights
c.​ DPSP
d.​ Fundamental duties
e.​ Reservations
f.​ Special provisions

Conventions applied in India through constitution - Universal declaration for human rights.
Legislations enacted by the parliament-
a.​ Protection of human rights act 1993
b.​ National commission for minorities act 1992
c.​ National commission for women act 1990
d.​ Protection of civil rights act 1995
e.​ Schedule cast and schedule tribes (prevention of atrocities) act 19989
f.​ Immoral trafficking act 1987
g.​ Juvenile justice (care and protection of children act) 2000

Judiciary implements and protects the rights of humans through article 32, 226, artcile 21
(plethora of rights), PIL and judicial review.

Article 21
a.​ Right to privacy
b.​ Livelihood
c.​ To live in pollution free environment
d.​ Speedy trial
e.​ Free legal aid
f.​ Against Solitary confinement
g.​ Medical care
h.​ Compensation
i.​ Against hand cuffing

Judiciary is expected to act as a catalytic agent of social control and hammer out human rights
jurisprudence in the light of the philosophy envisaged by the constitution.

3 generations or human rights

1.​ 1st gen HR- rights which are envisaged in the international conventions on civil and
political rights.
2.​ 2nd gen HR- rights which are envisaged in the international conventions on economic,
social and cultural rights
3.​ 3rd gen HR- solidarity

1st generation human rights

Philosophers- John Locke, Rousseau, Montesquieu, Hobbes.
Monarchy absolutism.
There are certain international documents which have evidenced the efforts of these
philosophers who have fought against monarchical absolutism-
a.​ Magna Carta 1215
b.​ Petition of rights 1628
c.​ Bill of rights 1689
d.​ American Declaration of Independence 1776
e.​ French declaration of human and citizen rights 1789
Limitations on the power of the state (French declaration of human and citizen rights 1789)

1.​ On the arbitrary imposition of taxes without approval of the parliament.

2.​ In relation to arrest of people or confiscation of property if not done according to
procedure of law.
3.​ They also supported freedom of speech, thought and right to petition.

European convention on human rights which added a few rights in this 1st generation.
1.​ Right to life
2.​ Freedom and security of a person
3.​ Right to property
4.​ Freedom of religion
5.​ Freedom of expression and information
6.​ Freedom to free elections

International conventions on civil and political rights

Civil right as part of this generation

1.​ Freedom of opinion
2.​ Freedom of expression and speech
3.​ Right to personal security
4.​ Equality before law

Political rights as part of this generation

1.​ Equal access to public
2.​ Participation in elaboration of law
3.​ Citizen control over the administration
4.​ Control of taxes

2nd generation human rights

Economic, social and cultural rights
1.​ Right to work
2.​ Right to association
3.​ Right to education
4.​ Right to insurance in case of old age, sickness or disability

They are different from 1st generation rights because they require institutional support. The
state has to pss legislative acts to create the institutional system to enforce these rights.

1st generation HR ensure free states and 2nd generation HR ensure social status

European convention on HR
1.​ Freedom of meeting associations and forming unions
 2.​ Right to education
3.​ Right to social security
4.​ Right to pension
5.​ Right to medical service

3rd generation human rights

Solidarity rights
Exercised collectively

1.​ Right to self determination

2.​ Right to peace
3.​ Right to development
4.​ Right to humanitarian assistance
5.​ Environmental law
6.​ Right of minorities, ethnic, religious and linguistic group

They also laid down certain limitations on the 1st and 2nd generation rights

Culture relativism v. Universalism

Whether human rights are universally applicable or subject to cultural interpretation in relation to
varied cultures?

Understanding cultural relativism

Cultural relativism is accepting the rights which suits the cultural diversity or background of the
concerned society. We are aware that each culture accepts certain set of norms, values and
practices and HR should be defined or interpreted within these cultural frameworks. So,
imposing universal standards may disregard cultural diversity.
Eg- polygamy, honour killing

Understanding universalism of HR
Humans are born with certain rights. They are natural rights of human beings and it is
irrespective of any discrimination.

We need to strike a balance between cultural reletavism and universalism so therefore there are
certain considerations which have to be kept in mind. These are-
1.​ Universality with cultural sensitivity- to strike a balance it is important to recognise the
universal principles underpinning HR while allowing for cultural variations and
interpretations in their implementation.
2.​ Dialogue and engagement- a dialogue must be promoted between cultures based on
mutual understanding which challenges stereotypes and exchange of perspectives.
3.​ We cannot take cultural reletavism as an excuse for violating HR.

Evolving standards of HR
It is evolving with international law
Human rights apparently seems to be a concept of modern age but the origin of this concept
takes us to the remote past. So it can be stated that HR have aquired the sophisticated icticated
legal well arranged present form by wandering a long way. Therefore, we can study about the
evolution of HR in 3 phases-
1.​ Ancient age
2.​ Medieval age
3.​ Modern age

Ancient age (Blooming stage of HR)

1.​ The code of Hammurabi- code passed in Babylon , Iraq. 1st legal written document. He
vowed “to make justice rein in his kingdom to destroy the wicked and violent and to
prevent the strong from oppressing the weak.”
2.​ Cyrus cylinder (539 BC)- A legal written document ensuring special rights for the people
and is passed by the king of Persia. The king of Persia conquered Babylon and then he
wanted to ensure some liberties for people and for that he executed a document called
Cyrus Cylinder which was discovered in 1879. He tried to ensure certain rights like-
Religious tolerance, Freedom of movement, Freedom from slavery, Freedom of security,
Some socio-economic rights
3.​ Teaching of Confucius (500 BC)- Chinese philosopher who advocated and love for
others. “What you do not want to do to yourself, don’t do it to others”.
4.​ African community- Ubuntu, philosophy which says respect the members of human
community. “I am because you are”. HR are- inalienable, interdependent, interrelated,
indivisible, universal.

Medieval age
1.​ Magna Carta- by King John in 1215 AD, reaffirmed by King Edward. 63 articles. 39 and
40 (important articles). Basic rights- restrictions on the absolute power of the king,
respect for the legal procedures, will of the kit can be bound by law.

Article 39 says that a person ensures freedom against arrest and imprisonment until and unless
done according to law.
Article 40 states that freedom from being sold and justice should not be delayed.

Philosophers
Coke says that it was declaratory of the principle ground of the fundamental laws of England. So
therefore, it is one of the most important legal documents in the history of democracy.
Hallam says that “it is the keystone of english liberty”.

Modern age
1.​ Petition of rights
2.​ Bill of rights
3.​ 18th century, Us Declaration of Independence
 4.​ French declaration of rights of man and citizen
5.​ Geneva convention 1st

1.​ Petition of rights

It’s an english constitution. Passed in 1628.
Limitations-
a.​ Talked about non parliamentary taxation
b.​ Forced beletting of soldiers
c.​ Application of martial laws on common people
d.​ Imprisonment without cause
Needed subsidy for war, king forced people to give loan, who refused was behind bars.

Articles
1- no person shall be required to pay tax without parliamentary approval
2- no person should be imprisoned without cause being shown
3- no troops should be quartered in private homes without consent of the owner and without
compensation
4- no application of martial law on common people

2. Bill of rights
Passed by the parliament in 1689 and tried to reinstate the fundamental rights, there were
certain imp rights which were emphasized eg. 1) Tried to limit the power of sovereign 2) tried to
strengthened the parliament 3) tried to ensure freedom of speech, freedom of election and
freedom of petition. influenced by john locke and Montesquieu
a.​ there should be no interference of the royals in the law.
b.​ no taxation on royal prerogative
c.​ Only civil courts will try the cases and church courts will not be legal.
d.​ No standing army shall be maintained during the time of peace without th approval of the
parliament.
e.​ No royal interefrence in the election procedure of the parliament.
f.​ No royal interefernce in the possession of arms with the common man for defence.
g.​ Freedom of speech and expression in the parliament.
h.​ No excessive bail or cruel and unusual punishments may be imposed.
i.​ Grant of fines or forfeitures before the conviction were considered void.

3. 18th century, American Declaration of Independence (1776)

Gave certain rights which were inalienable. These were-
a.​ Protection of freedom of speech, press, petition and assembly.
b.​ Right privacy
c.​ Right of due process of law
d.​ Equality before law
e.​ Freedom of religion
John Locke and Montesquieu
4. French declaration of rights of man and citizen
French Republic was declared. Voltaire, Montesquieu and Rousseau.
Rights ensured-
a.​ Right to property
b.​ Right to security
c.​ Right to liberty
d.​ Right to resist oppression
Right to equality was given to commoners

League of Nations (PCIJ)

4. Geneva convention
a.​ 1st Geneva convention (1864-1949) for the amelioration of the condition of the wounded
and sick in armed forces in the field.
b.​ 2nd Geneva convention (1949) for the amelioration of the condition of the wounded and
sick and ship recked members of armed forces at sea.
c.​ 3rd Geneva convention (1929-1949) relates to the treatment of prisioners of war.
d.​ 4th Geneva convention (1949) relates to protection of civilians during the time of war.

Henry Durand (founder of internation committee of Red Cross) - controlling body of Geneva
conventions.

Economic and social rights under UDHR

1.​ Right to social security (article 22-27)
2.​ Right to work and choice of employment
3.​ Right to rest and leisure
4.​ Right to a decent standard of living
5.​ Right to education
6.​ Right to participate in cultural life
7.​ Right to a good social and international order

Article 29 lays down limitations in relation to rights under UDHR.

COMMON STANDARDS OF ACHIEVEMENT.

Provisions of UDHR are recommendations and are not strictly binding.

UDHR is not a legal instrument and the declaration would appear to be outside international law
and it’s provisions can not form the subject matter.

DEFECTS of this document

1.​ It is not a legally binding document.
2.​ The provisions are very general in nature
 3.​ There is no method of implementation only enumeration.

INFLUENCE OF UDHR
1.​ UN charter
2.​ Domestic laws
3.​ Conventions and treaties (more than 70 treaties)
4.​ Judicial decisions

INDIA AND UDHR

Indi being a signatory to the international document of UDHR has incorporated many of it’s
provisions in it’s constitution. For example-
1.​ Fundamental rights in part 3
2.​ Fundamental duties
3.​ Directive principles of state policy in part 4

Case- kesvananda bharati case

Sc said that UDHR may not be a legally binding document but it shows how India understood
the nature of human rights at the time when constitution was adopted.

Case- chairman railway boards and others v. Ms. Chandrika Das SC 2000
Sc says that the declaration has the international recognition as the moral code of conduct
having being adopted by the general assembly of the United Nations.

Some provisions of UDHR do reflect customary international law and they are-
1.​ Right to equality which is given under article 1,2 and 7 of the document and which is
inherent in all human beings.
2.​ Prohibition against slavery under article 4. Even ICJ supported this under the case of
Barcelona traction case 1970
3.​ Prohibition against torture under article 5. It is accepted as customary international law
under 2 cases- Belgium v. Senigal 2012, Pinochets case 1998. considered as juscogens.
4.​ Prohibition against arbitrary arrest and detention under article 9. Case supporting- United
States diplomatic and councillors staff in Tehram 1980.
Court (ICJ) stated- “wrongfully to deprive human beings of their freedom and to subject them to
physical constraints in conditions of hardship is in itself manifestly incompatible with principles
the of UN charted as well as fundamental principles enunciated under the UDHR.

In order to promote and protect the HR enshrined under the UDHR, the general assembly on
the recommendation of economic and social council, in 1998 through a resolution adopted a
declaration (declaration on the right and responsibility of individuals, groups and organs of
society to promote and protect universally recognised HR and fundamental freedoms) short
form - declaration of HR defenders. The main significant provisions of this declaration are-
1.​ Everyone has the right to promote and strive for the protection of HR
2.​ Each state has a prime responsibility to protect, promote and implement the HR
 3.​ In order to do the above, it can adopt administrative or legislative measures to ensure
effective implementation
4.​ Everyone has the right to meet or assemble peacefully
5.​ Everyone has the right to speak, express, know and receive information
6.​ Everyone has the right to submit governmental bodies, proposal of criticism for
improving their functioning
7.​ Everyone has an equal right, whether individual, group, institution or non governmental
organisation to play their important part in promoting HR and contributing effectively
8.​ State has the responsibility to spread awareness by facilitating teaching
9.​ Everybody has the right to indulge in peaceful activities

Declaration and covonent

In 1947, the drafting committee realised that the UDHR is not legally binding, so they tried to
draft covenants which are not general in nature.

The committee made a draft on international convention on HR, having 27 articles and 3 parts.
Part 1- Right to self determination Article 1
Part 2- states obligation to enforce the concerned rights
Part 3- enumerated the specific rights
Part 4- if any state needs to be a part of this convention and if any amendments are required,
the procedure of it

In 1948, this draft was revised in the second session and was redrafted. It was sent to the
government of different states for their recommendations. It was returned to the commission and
was forwarded the report to the economic and social council and further to the general
assembly in 1950.

Three countries made objections when the convention was being discussed in the general
assembly.
1.​ Australia
2.​ Soviet Union
3.​ Yugoslavia

They said that civil, political, economic and social rights were not included. The general
assembly agreed to include these rights but many objections come from different countries
stating that the nature of the rights are different. They suggested that two different document
should be made.

In 1952, a third committee was chosen to work on these draft. The draft was completed in 1954.
These conventions were adopted in 1966. Different recommendations were given for 12 years.
The final draft was handed over to the general assembly and then adopted on 16th December
1966.
In order to implement these documents, they needed at least 35 signatories which happened in
1976.

There were 3 optional protocols which was passed at the same time.
First 2 optional protocols were passsed with the 1st convention. (Civil and political)
2nd optional protocol talked about abolition of death penalty.
Third optional protocol was passed with the 2nd convention.

2023- 103 countries became signatory to the 1st convention and 171 to the 2nd convention.

The first protocol is dealing with the procedure of filing a complaint with the HR commission
once the domestic options are exhausted.
The second protocol is dealing with abolition of death penalty
The third protocol is dealing with the procedure of filing a complaint by person with disabilities.

The international bill of HR consists of-

1.​ UDHR
2.​ 2 covenants
3.​ 3 optional protocols

Civil and political rights during emergency

Article 4- if there is an emergency which is life threatening for the nation, then the state parties
can derogate from their obligation and few of the human rights can be suspended. But at the
same time, para 2 of article 4 makes certain rights which can not be suspended. Which are-
1.​ Right to life article 6
2.​ Freedom from inhumane and degrading treatment article 7
3.​ Freedom from slavery article 8
4.​ Freedom from imprisonment for inability to fulfill a contractual obligation article 11
5.​ Freedom from mon retrospective application of criminal law article 15
6.​ Right to recognition as a person before law article 16

International covenant on economic, social and cultural rights

31 articles and 5 parts

Part 1 - to determine his own political status or continue with his social, economic development
or acquire or dispose his natural wealth.

Part 3- gives some specific rights such as-

1.​ Right to work article 6
2.​ Right to just and favourable conditions of work article 7
3.​ Right to join or form trade unions article 8
4.​ Right to social security article 9
5.​ Right relating to motherhood, childhood, marriage and family article 10
 6.​ Right to adequate food, clothing, housing and standard of living (freedom from hunger)
article 11
7.​ Right to physical and mental health article 12
8.​ Right to education article 13
Right relating to science and culture article 14

Significant difference between both covenants

1.​ Even during the period of emergency, the rights mentioned under the 2nd convention
cannot be suspended at all which is not the case in the 1st convention.
2.​ 2nd convention is also known as promotional convention. They need not be
implemented immediately, growth will come with legislative development. The 2nd
covenant has set the standard which the state parties are required to achieve in future.
It’s provisions shall be implemented progressively by the states depending on the
resources available with them. Therefore, this covenant is essentially a promotional
convention but both these covenants gain a matter of importance because they tried to
protect and promote the inherent dignity, equality and the inalienable rights of a human
being.

Implementation of these rights

Part 4 deals with implementation by the human rights commission.

Universal declaration of human rights and it’s relation with 2 covenants

UDHR deals with general rights and they are specifically mentioned in the 2 covenants. They
cannot be read in isolation
Flaw- there are certain eight which had been mentioned in UDHR and are not mentioned in the
covenants and vice versa. Eg- right to property, Right to claim asylum from countries, right not to
be deprived of their nationality is adopted in UDHR but not in any covenants.

Right to self determination, right to dispose natural wealth, right of ethnic, religious or linguistic
minorities to enjoy their own culture is mentioned in the covenants but not in the UDHR.

Relationship b/w both covenants

The preamble, article 1,2,3 and 5 are identical.
Article 1- self determination
Article 2- non discrimination
Article 3- states should make sure that all men and women enjoy these rights equally
Article 5- safeguards or protective measure pertaining to violations of these rights

1968- there was an international conference in Tehram and convened to realise the importance
of the rights under the 2 covenants. Since human rights and fundamental freedoms are
indivisible, their full realisation of civil and political rights, without the enforcement of economic,
social and cultural rights is impossible.
1977- these rights are indivisible and interdependent and equal attention for the implementation
of both sets of rights must be given.
1993- Vienna convention in human rights. It was reiterated that the states have an obligation to
promote universal respect for these rights and there observance and protection.

Criticism of these covonents

1.​ The critics were of the view that these rights inherent in the 2 covenants should not have
a universal application because the socio economic political needs of every state may
vary and the people living in developed, developing and least developed countries
cannot have the same requirements. Therefore, the application should be varied. The
ones who supported the universal character of these rights were of the view that human
rights are required to maintain human dignity and therefore these rights are inherent in
the human right from their very birth. HR are colourblind and direction blind. They must
have universal application.
2.​ There are some glaring omissions of certain rights in the covenants. Eg- right to
property. The supporters of the covenants were of the view that even though right to
property has not been included as a part of these covenants which does not render the
other rights unimportant or undesirable.

1st convention

Convention against torture

UDHR civil and political rights.
Article 5 of UDHR and article 7 of covonent on civil and political rights said that all people shall
not be subjected to torture or cruel and inhumane degrading treatment or punishment.
General assembly passed a resolution in 1975 in order to protection against torture.
They thought of passing a convention and passed it in 1984. After 1987, this convention came
into force only with 20 state parties who ratified it. By 2023, 173 state parties have now ratified
this convention.
Article 1 defines torture- Torture is any act by which severe pain or suffering whether physical or
mental is intentionally inflicted on a person for such purposes as obtaining from him or any third
person any information, or confession or punishing him for any act which he or any third party
has committed or is suspected to have committed or intimidating or coercing him or any third
person or for any other reason based on discrimination when such pain or suffering is inflicted
by or at the instigation of or with the consent of a public official or person acting in official
capacity.
Negative meaning- any punishment by law

In the case or Belgium vs senagel, ICJ reports 2012- prohibition of torture is a part of customary
international law and it has become a premptory norm of international law.

States obligation under CAT

article 2 and 4 laid down the duties and obligations of the state
1.​ Article 2 para 1- all the state parties have the responsibility to put the provisions of this
convention into practice by adopting legislative, administrative and judicial measures in
their own domestic law.
 2.​ Article 2 para 2- protection from torture is an absolute right. Even in exceptional cases,
we can’t exempt these rights.
3.​ Article 4- this convention makes it clear that acts of torture must be declared offences
under th criminal law of the various domestic jurisdictions of the state parties.
4.​ No person can be extradited, expelled or returned to a state where it is felt that the
person will be metted out with torture and his human rights would be violated. Provision
of asylum.

Implementation
A special committee called committee against torture (CAT). This committee consists of 10
individual experts. The experts should have a high moral standing and that they are experts in
their field (HR). These experts should have equal geographical representation. They are elected
by the state parties. Their tenure is 4 years and are eligible for re election. Functions of this
committee are-
1.​ This committee will receive a report from the state parties which includes the measures
taken by the state parties to prevent torture.
2.​ Before this report is presented, a meeting is taken place wherein guidelines are laid
down in relation to the framing of the report and it’s communication.
3.​ After receiving the report, the committee will make some general comments. Then it will
go back to the state parties.
4.​ Sometimes, committee can also specially invite one of the state parties wherein there is
continuous violation of the convention provisions. Why- to understand, to discuss and to
find a solution.
5.​ Article 21 of this convention deals with the function of the committee related to inter state
communication system.
6.​ Article 22 deals with individual communication system.

Interstate communication system as mentioned under article 21 makes it clear that if a state
party makes a declaration recognising the competence of the committee then that state party
has the right to inform th committee that another state party is not abiding by the provisions of
the convention.

The procedure pertaining to article 21

if the state party considers that there is a blatant violation of CAT in a particularstate, it will bring
the matter to attention by writing to the other state. The receiving state within a period of 3
months after the communication must give an explanation or a statement clarifying the matter
and also regarding the domestic procedures and remedies taken in that matter. If within 6
months, there is no response or amicable settlement of the issue, then the state party can
inform the committee via a notice to the committee. The committee will interfere when it is
satisfied that all the domestic remedies are exhausted.

Ad hoc committee- 5 members

Friendly solution given by the committee for sloving the matter - providing good offices to sought
out the issue or a committee of conciliation.

Individual communication system - article 22

Even an individual can approach the committee if he’s blatantly tortured, cruel or degraded
treatment for any remedy. Only those individuals can approach the committee whose state has
made a declaration. A minimum of 5 state parties have to make a declaration in order to make it
operative. Around 2015, 66 parties made a declaration. The complaint is inadmissible if it is
made anonymously and If that communication breaches any part of convention.

When th committee will not entertain the complaint

1.​ When the domestic procedures are not exhausted
2.​ If no recourse have been taken under international convention

After 2015, 697 individual cases were reported.

In this, 70 were inadmissible, 190 cases were discontinued, 160 were pending.

There is one optional protocol attached to this convention against torture. It deals as to how
regular visits have to be made to different state parties. It says that we need to have a
committee to make visits to check whether legislative and administrative measures are taken to
prevent torture and to see if any one is metted out with torture.
Article 1 of this protocol talkes about the visits.
Article 2 talks about the establishment of the sub committee on prevention of torture. It will have
10 members. After 15 states ratify this optional protocol, then these members will increase from
10 to 25. They will be people of high moral character and experts in different fields i.e, prison
administration, criminal justice, police administration and in any other field which deals with
treatment and detention of persons.

Functions of sub committee

1.​ The first function of the sub committee is to make regular visits to a state party where
there is information that people are tortured.
2.​ They have the power to make recommendations in order to prevent torture.
3.​ They will also advise, assist and cooperate with the state parties in implementation of the
provisions of the convention.

Obligations of the state under this sub committee

1.​ The state parties must give the committee unrestricted access to the areas where people
are detained or deprived of their liberty.
2.​ Unrestricted access to the information about these persons.
3.​ They will also have an unrestricted access regarding the information pertaining to
treatment of these persons.
4.​ They will also be given the right to have private interviews with such persons without
witnesses. Place will be choice of the members of the committee.
 5.​ The state may refuse because of some exceptional cases like national defence, security,
natural disaster or any other serious disasters.

India and UNCAT

In 1997, India signed the UNCAT but till date it is not a ratifying party. In 2003, NHRC made a
draft cabinet note to ratify, it was picked up by the Rajya Sabha but was not passed. In 2005,
ministry of Human affairs made a commiitee (Inter ministerial group) which would consider the
the ratification. no recommendations are made till date.
In 2010, the prevention of torture bill was passed in Lok Sabha which tried to incorporate the
provisions of the CAT, but the definition of torture was totally different. So it was never passed.
Till date, India is a signatory to CAT.
In 2022, an act was passed namely prevention and suppression of torture and enforced
detention act which touches areas indirectly of the CAT.

Article 1 of this bill stated the definition of torture- whoever being a public servant or being
abetted by a public servant or with a consent or acquescene of a public servant intentionally
does any act which causes:
1.​ Grievous hurt to any person
2.​ Danger to life, limb or health (whether physical or mental) of any person
is said to inflict torture.

CEDAW
1946- equality and dignity, commission on status of women to deal with women issues.
1948- UDHR
1967- UNGA passed a declaration on elimination on all kinds of discrimination against women.
1975- discussions
1979- after 5 years of deliberation, passed convention on discrimination against women
1981- brought into force

189 nations were a part by 2022.

1 preamble and 30 articles.

State parties took certain obligations under this convention-

1.​ To embody the principle of equality of men and women in national constitution of their
countries.
2.​ They also took up a duty to take up legislative, administrative and judicial measures to
prohibit discrimination against women
3.​ To refrain from engaging into any practice of discrimination against women
4.​ They also vowed to implement measures to eliminate discrimination based on sex
5.​ State parties also undertook to repeal all national penal provisions which contribute to
discrimination against women

Any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by women irrespective of their
medical status on the basis of men and women of human rights and fundamental freedom in the
political, economic, social, cultural, civil or any other field.

Article 10
Equal opportunity of receiving scholarship and education.

Article 11
right to work should be given to all genders
Right to employment opportunities
Right to receive any benefits
Right to pay relief
Right not to be discriminated based on marriage or maternity
Right to proper working conditions
Right to social security

Article 12
Irrespective of their gender, everyone should get good healthcare facilities

Article 13
Women will get equal financial rights as far as loans, mortgage etc are concerned

Article 14
Women in rural areas will not be treated less than in urban areas . Right to education,
information, training, counsel, to form self help groups, to take part in administrative setups at all
levels, agricultural credits, loans and equal treatment in land and agrarian reforms.

Article 15
Equality before law, choose residence, administer property.

Article 16
Marriage and family relations, right to enter into marriage and dissolve it, to progeny, to think
about the interest of children, adoption, guardianship, disposition of their property will be equal
to that of men.

Implementation
This committee works from the reports of the state parties.
State parties - committees in CEDAW - comssion

There are 3 conferences on women which helped us to implement and takk about and solve
issues about women-
1.​ 1975, Mexico city
2.​ Copenhagen
3.​ 1980, Nairobi
 4.​ 1995, Beijing - concentrated in the fact that women rights are also human rights. it talked
about 12 critical areas pertaining to women rights- education, violence, health, inequality,
economy, poverty etc.

UN general assembly in 2000, focused on a special session pertaining to women rights, and
focused on 3 important things - gender equality, development and peace.
Special session was called beijing plus 5.

In 2005, a special session was conducted named as beijing plus 10. This was a renewal
session in order to see if the issues pertaining to women have been solved and if any
development has taken place or not.

Beijing plus 10
-​ focused on 12 areas.
-​ report given during this conference said that a lot has been achieved as far as 12 areas
are concerned.
-​ June Zeitlin, an executive director or WEDO (women’s environment and development
organisation). This report from WEDO says that we differ from the report given in the
Beijing plus 10 conference.

India and CEDAW

-​ Ratified in 1993.
-​ While ratifying CEDAW, India made 2 declaration and 1 reservation.
-​ 1st declaration was that India will not interfere in the personal affairs of any community
but at the same time they will genuinely implement the provisions of CEDAW.
-​ 2nd declaration was that we are supportive of compulsory registration of marriages.
-​ The reservation was that, as required under sec 29 of CEDAW, parties have to depend
on arbitration, they said that settlement of disputes through arbitration will not be the only
method of settlement.

Judicial pronouncements
1.​ Case - Vishakha v. State of Rajasthan (1997)
2.​ Article 14- equality
3.​ Article 15- no discrimination
4.​ Article 15(3) - special provisions that can be made for the upliftment of women
5.​ Article 16- equality of opportunity in employment
6.​ Article 21- right to education
7.​ POSH Act
8.​ Doemstic violence act 2005
9.​ Case- Medha Kotwal and ors. v. UOI, in this case the Supreme Court asked the states
as how they have implemented the guidelines of Vishakha’s case.
10.​Case- Air India v. Nargesh Mirza (1981) SC
 11.​Case- Madhu Kishwar v. State of Bihar (1996) SC, “Article 2(e) of CEDAW enjoins the
state parties to breathe life into the dry bones of the constitution, international
conventions and the protection of human rights, to prevent gender bias discrimination”
12.​Maya Devi v. State of maharashtra (1986), the provision wherein married women had to
take permission before applying for government jobs was held unconstitutional.
13.​Secretory ministry of defence v. Babita Punia and ors. 2020 SC, women will be allowed
permanent commissions in armed forces.

Under POSH act, a compulsory committee is required which is known as Internal complaints
committee, the women suffering should complaint within 3 years and if it is a continuous
harassment, within 3 months of the next act.

Conventions
1.​ International convention on elimination of all forms of racial discrimination
-​ It was article 2 of UDHR which talked about giving human rights to everyone irrespective
of their caste, creed, gender.
-​ In 1963, the general assembly came up with a declaration which talked about equality of
all persons and confirmed the indiscrimination between human beings on the basis of
caste, creed, gender etc.
-​ In order to make this declaration binding, the general assembly passed this convention.
-​ The convention was adopted in 1965.
-​ Racial discrimination is defined under article 1 of the convention, “Any distinction,
restriction, exclusion or preference based on race, colour, decent, origin which has the
purpose of nullifying or impairing the recognition, enjoyment or exercise on an equal
footing of all human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life.”
-​ This convention will not apply to distinction, restriction, exclusion or preference made by
a state party between it’s citizen and non citizen.
-​ Article 2 talks about the obligations of the state parties-
a.​ Not to engage in any of such activities which amount to racial discrimination.
b.​ They will also not sponsor, defend or support any other state who’s indulging in racial
discrimination.
c.​ State’s will undertake the duty to take effective measures whether legislative,
administrative or judicial and also to review the governmental, national and local policies
regarding the same.
d.​ If any law or policy goes against this convention, it will be repealed.
e.​ The state parties will prohibit and bring to an end all activities which further racial
discrimination by individuals, groups or institutions.
f.​ The state parties guarantee equality before law in the enjoyment of human rights and will
be given equal protection of law.
-​ Implementation of these provisions: committee on racial discrimination, and was
established in 1969, had 18 members having expertise, high moral grounds.
a.​ For the first year, file a report to secretary which includes the measures undertaken by
them. And then every two years.
 b.​ The report will be given to the general assembly.
-​ Article 11 talks about interstate communication
-​ Article 14 talks about Individual system of commuinication
-​ World submit on racism in 2001 in Durban in South Africa and in this submit, a
declaration was adopted named “Declaration of program of action”. The things
considered in this submit were-
a.​ Forms, sources and causes of racial discrimination
b.​ Kinds of victims of racism
c.​ Measures taken for prevention, education and protection

2. Convention on rights of Child

-​ Article 25 of UDHR talked about special care and attention of children
-​ Article 24 of Convention for civil and political rights talked about provisions for care
-​ In 1989, a convention for rights of children were passed. It came into force in 1990.
-​ Article 1 of this convention defines a child, “any person below the age of 18 years unless
under the law applicable to the child majority is attained earlier.”
-​ List of the rights
a.​ Article 6- right to life
b.​ Article 7- right to acquire nationality
c.​ Article 13- right to freedom of expression
d.​ Article 14- right to freedom of thought, concience and religion
e.​ Article 15- right to freedom if association and peaceful assembly
f.​ Article 16- right to privacy
g.​ Article 20- right to a family environment
h.​ Article 28- right to education
i.​ Article 26- right to social security
j.​ Article 27- right to standard of living (physical, mental, economic and spiritual support)
k.​ Article 24- right to enjoyment of highest attainable standard of health
l.​ Article 32- right against exploitation of child labour
m.​ Article 34- right against sexual exploitation
n.​ Article 35- right against abduction, sale, traffic
o.​ Any other kind of exploitation which is against child’s welfare

Implementation procedure
-​ Committee on rights of child 1981, constituted under article 53
-​ Earlier there 10 members and now 196 member states

State - secretary general - committee - economic social council - general assembly

3 optional protocol
1.​ Optional protocol on involvement of children in armed conflict
2.​ Optional protocol on sale of children, child prostitution, child pronography
3.​ Optional protocol on right of child on communication procedure
Optional protocol on involvement of children in armed conflict
1.​ 1st Geneva convention passed in 1949- it was said that children should not be involved
in armed conflicts.
2.​ 2nd Geneva convention passed in 1977- it was said that children below 15 years should
not be involved in armed conflict but children above 15 years of age and below 18 can
be involved but preference should be given to children older in age. These children were
used as guards, sex workers. Till 2023, there were more than 172 states who were party
to this protocol.
3.​ Children could be involved but with 2 constitution-
a.​ Voluntary involvement
b.​ Consent of the parents is required
4. In 2005, security council passed a resolution in order to establish a mechanism for monitory
reporting and punishing those who would recruit the children against the conditions.

Optional protocol on sale of children, child prostitution, child pornography

1.​ It was made to see what measures are taken to prevent the above
2.​ It was enforced in 2002. Till 2023, there were 178 parties

Optional protocol on right of child on communication procedure

-​ Procedure for investigation in case of calls regarding these issues
-​ If the call or statement is anonymous- no action will take place

ILO made many advancements to curb child labour

1.​ It has passed 12 major conventions to prohibit employment of children and set basic
conditions of work for them.
2.​ In 1990, they launched a major program called “program on the elimination of child
labour” and it focused on giving advisory services advisory services in order to check
hazardous work, forced labour, worst abuses related to street children and employment
of children below 13 years of age.
3.​ In 1999, ILO adopted a landmark treaty “worst forms of child labour convention”, it
applied to children below 18 years of age to eliminate the worst forms of exploitation
pertaining to child labour in urgency.
4.​ General assembly in 1992, it urged the state party governments to take action on
problems of street children (crime, drug abuse, prostitution, violence).
5.​ Commission on human rights also appointed a special repiter for dealing with cases
mentioned in second protocol

Child labour in India

1.​ Article 24- no child below the age of 14 years shall be employed in factories, industries
dealing with hazardous material.
2.​ Article 45- free education

Acts helping in prohibiting child labour

1.​ Employment of children act 1938 - first act dealing with child labour
 2.​ Indian factories act 1948
3.​ Indian mines act 1952
4.​ Bidi and cigar workers act 1966
5.​ Child labour (prohibition and regulation) act 1986

Judicial pronouncements peohibiting child labour

1.​ Peoples union for democratic rights v. UOI AIR 1983 - it was contested that construction
work is not considered hazardous. Court in this case stated that, construction work is
also hazardous.
2.​ MC Mehta v. State of Tamil Nadu 1997- if any employer employees children in
hazardous work, he will have to pay compensation of rs.20000 which will go to his
welfare or give the adult of the child a job. Later it has been enhanced to rs, 25000.

3.​ UN convention on rights of persons with disabilities

-​ Passed in 2006 at the UN headquarters in New York.
-​ Opened for signature and ratification in 2007 and came into force in 2008 after 20 states
adopted it.
-​ In 2023, there were 186 state parties adopting it.
-​ Certain principles adopted-
1.​ Respect, dignity and individual autonomy
2.​ Participation and inclusion
3.​ Respect for diversity and differences
4.​ Accessibility
5.​ Equality of opportunity
6.​ Gender equality
7.​ Respect for evolving capabilities of children with disabilities
-​ WHO report- 650 million people re suffering from disabilities.
-​ Equal human and fundamental rights are expected for people who are disabled.
-​ In 2001, general assembly felt the need to work on convention which will provide for
rights to persons with disabilities. They built up an ad hoc committee for drafting of this
convention.
-​ In 2003, they made a working group which will research this area and try to help in
drafting.
-​ It has 1 preamble and 50 articles.
-​ Article 1- purpose, this convention has been passed to promote, protect and ensure that
full and equal enjoyment of all the human rights and fundamental freedoms by all
persons with disabilities and to promote respect for their inherent dignity.
-​ Article 5 to 32- defines the rights which emphasise the rights given to persons with
disabilities.
-​ Article 33 to 39- reporting and monitoring system
-​ Article 40 to 50- ratification, coming into force, reservation, amendment etc.
-​ Committee on the rights of persons with disabilities:
a.​ formed in 2006, started working in 2008.
b.​ This committee had 12 expert members.
 c.​ Later, this no. of members would increase to 18, if 60 states ratify.
d.​ Tenure is 4 years
e.​ Have to submit the report to general assembly after every 2 years
-​ Optional protocol on rights of persons with disabilities adopted along with the
convention in 2008.
a.​ It dealt with individual communication system
-​ India is a party to this UN convention. It became a part in 2007.
-​ An act by which we bring it to our domestic laws - rights of persons with disabilities 2016.
-​ Act of 2016 had replaced the act of 1995.
-​ The act of 2016, defined the word “disability” in section 2(a) which is same as of UN.
“Person with disabilities is a person with long term physical, mental, intellectual or
sensory impairment. This impairment is a barrier in the interaction, hinders his full and
effective participation in society equally with others.”
-​ It has also defined a term “benchmark disability” as “A person with not less that 40% of a
specified disability where whether the specified disability has been defined or not in
measurable terms but is certified by the certifying authority.”
-​ A number of rights given:
a.​ Right to life
b.​ Right to equality
c.​ Right to personal liberty
d.​ Right to live in a community
e.​ Right to protection against torture, exploitation, cruel and inhumane treatment
f.​ Right to legal aid
g.​ Right to represent themselves in court
h.​ All educational institutes, funded or recommended by government will not discriminate
them (Inclusive measures).

Rights under Persons with disabilities act

a.​ Article 5- equality and non discrimination
b.​ Article 6- women with disabilities and their protection by state parties
c.​ Article 7- children with disabilities and measures to be taken by state parties to protect
them
d.​ Article 8- awareness pertaining to the provision in this convention (Awareness
campaigns).
e.​ Article 9- accessibility: to enable persons with disabilities, to live independently, the state
parties shall take appropriate measures to ensure to persons with disabilities access
(physical environment, transportation, information and communication, facilities open to
the public both in urban and rural areas) on equal basis with others.
f.​ Article 10- rights to life and to live with dignity
g.​ Article 11- situations pertaining to risk and humanitarian emergencies
h.​ Article 12- equal recognition of law, equal financial rights
i.​ Article 13- access to justice
j.​ Article 14- right to liberty (enjoying to right to life and dignity) and security. State parties
will take all appropriate measures for the same.
 k.​ Article 15- reiterates the right of torture, people with disabilities will not be treated cruelly,
inhumanely.
l.​ Article 16- freedom from exploitation, violence and abuse. State parties will take all
appropriate measures to make sure no person with disabilities is treated with violence
and abuse.
m.​ Article 17- protection of integrity of a person. Mutual respect for the physical and mental
integrity on equal basis.
n.​ Article 18- liberty of movement and nationality and right to residence.
o.​ Article 19- right to living independently and included in the society and community.
Inclusion and participation in the community. All community support services will be
available to them. There will be no discrimination.
p.​ Article 20- personal mobility
q.​ Article 21- freedom of expression and speech
r.​ Article 22- right to privacy. No unlawful interference in the privacy, family and
correspondence.
s.​ Article 23- respect for home and family
t.​ Article 24- right to education.
-​ inclusive educational system
-​ Their education will not be excluded from the general education system
-​ Free and compulsory education
-​ Effective individualised, support measures are provided in environments that maximise
academic and social development consistent with the goal of full inclusion.
u.​ Article 25- health programmes and facilities
v.​ Article 26- habilitation and rehabilitation. State parties will take all appropriate measures
to enable individual to have maximum independence, full physical, mental, social,
vocational ability and full inclusion and participation in all aspects of life.
w.​ Article 27- work and employment. Right to enjoy the opportunities as similar to the
people not having disabilities. Work environment must be created so that they can work
with their full abilities. Equal opportunity to work in public and private sector. They will not
be pushed into compulsory and forced labour.
x.​ Article 28- adequate standard of living and protection from discrimination
y.​ Article 29- participation in politics, eg- right to vote
z.​ Article 30- participation in cultural life, leisure, recreation and sports

Unit 6
General assembly
-​ UN charter article 9-22
-​ Talks about general assembly
-​ It is the most important chief deliberating and policy making body of UN.

Article 9- composition of General assembly

-​ 193 members of UN also members of GA.
-​ All members possess equal status irrespective of size, territory etc.
-​ From 3rd Tuesday of September to December and is called Annual session of GA.
 -​ General assembly will meet every year.
-​ Whenever a session commences, GA elects president and vice president who opens
and closes the meetings.
-​ Each state will have one vote.

Article 18
-​ important question which are to deliberated. (Maintaining International peace, security,
elections)
-​ Decisions on these matters by 2/3rd majority present and voting.
-​ Amended by simple majority present and voting during the discussion at the time of
deliberation.

Article 9

Elective functions
1st- Non permanent members of security council
2nd- 54 members of economic and security council
3rd - GA is responsible to elect members of trusteeship council
4th - It is responsible to elect members of ICJ by recommendation of security council
5th - to elect the secretary general of UN on recommendation of security council
6th - some subsidiary organs, eg- international law commission
7th - admission, suspension and expulsion of states on the recommendations of security
council. If any country is violating rules of UN, they will be suspended. If this violation is
persistent, it will be expelled.

Financial functions
1.​ Approving and considering the budget
2.​ Share what each member state will contribute

Supervisory functions
1.​ All the reports of the security council will be presented before the GA
2.​ The reports of committees and conventions

Miscellaneous functions
1.​ Right to establish subsidiary organs which are important for the performance of various
functions and this power is given under article 22.
2.​ General assembly, in very exceptional situations, can permit some specialised agencies
and other organs to seek an advisory opinion from ICJ.
3.​ Article 108- If the UN charter needs to be amended, 2/3rd majority of GA is required.

3 types of functions of GA
1.​ Exclusive
2.​ Common
3.​ Concurrent
Structure of general assembly
6 committees (which were 7 earlier) which worked under GA.
1.​ First committee- Disarmament and international security committee
2.​ Second committee- Economic and financial committee
3.​ Third committee- Social, humanitarian and cultural committee
4.​ Fourth committee- Special, political and decolonisation committee
5.​ Fifth committee- administrative and budgetary committee
6.​ Sixth committee- legal committee

Security council
-​ chapter 5 and article 23-27 deals with security council
-​ Before 1965, there were 11 members but it increased to 15.
-​ 5 permanent and 10 non permanent members
-​ Permanent members: republic of china, France, Russian federation, US and UK.
-​ Non permanent members: Ulgieria, Guiana, Denmark, Greece, Pakistan, Panama,
Republic of Korea, Slovania, Somalia, Syria.
-​ Maintenance of peace and security is their main function.
-​ List of peaceful measures: negotiation, mediation, good offices, conciliation, arbitration
and ICJ.
-​ Forceful measures: retortion, reprisal, embargo, pacific blockade, intervention.
-​ Security council is also known as enforcing wing.
-​ Term of members is 2 years for 5 members of non permanent members. There is a
defect in the election system -
a.​ Short span of time for which state parties are elected
b.​ Whatever contribution a state party makes when it is a non permanent member, it is not
considered.
-​ adhoc membership can be given to the parties in dispute. But they will not have a right to
vote. They can only attend the discussion.
-​ The meeting of the security council generally takes place at the headquarters (UN) but it
is not mandatory.
-​ 1 representative of a state

Voting system
-​ Procedural and non procedural matters- article 27
a.​ Procedural matters - minimum 9 votes
1.​ Alteration or adoption of the rules of procedures
2.​ Method of selection of president
3.​ Self organisation and functioning of the councils
4.​ Selection of time and place of the meeting
5.​ Establishment of such bodies which are important for the functioning of the council
6.​ Invitation to the non members of the council
b.​ Non procedural matters
Absence of the member of the security council - will not make any difference
1.​ Affirmative vote
2.​ Negative vote
3.​ Abstain (Present but choose not to vote)
4.​ Absent

Veto power article 27 para 3

-​ Dissenting vote given by a permanent member to block an issue and to not accept the
decision.
-​ A veto may be defined as a negative vote cast by a permanent member of the security
council that has the effect of nullifying the affirmative votes of an adequate majority.
-​ Criticisms
a.​ Dicotamy is created between permanent and non permanent members.
b.​ Veto power is an anti thesis of principle of sovereign equality.
c.​ The fate of the world is in the hands of five permanent members of the SC.
d.​ It becomes very difficult to take any action which is required against these permanent
members.
e.​ The concept of power is not static.

Functions of security council

1.​ Maintenance of peace and security. They can call th states and have deliberations. They
can take peaceful or forceful measures.
2.​ Right of investigation during a conflict among states.
3.​ Right to recommend a method of settling the dispute.
4.​ They have the duty to formulate plans to regularise and control armaments.
5.​ To determine the existence of any threat to the peace and security and to recommmend
any action which can be taken.
6.​ It also has a function to call upon the member states to apply economic sanction against
economic state but not use force against violating state.
7.​ To recommend addition of new states.
8.​ Recommendations for appointment of secretory general of UN general assembly.
9.​ Helps the trusteeship council. (none now )

India and security council

-​ India became a non permanent member in 2021 after winning 184 votes.
-​ It is trying to become a permanent member.

ICJ
-​ Article 92 of charter recognises the International code of justice and known as the
“primary judicial organ”.
-​ It does not have a compulsory jurisdiction.
-​ It is a successor of permanent code of international justice which worked under League
of Nations which worked from 1922-1940.
-​ In 1946, January, all it’s members resigned.
 -​ In April 1946, ICJ had been established.

Similarities between ICJ and PCIJ

1.​ Statute: literal copy, not much difference
2.​ Article 36 of the charter of ICJ states that all those declaration which were made by the
state under PCIJ will be continued and will be as good as under ICJ.
3.​ The seat of the court is the same as of PCIJ. Peace palace at Hague.
4.​ The retiring president of PCIJ was the first president of ICJ- Gerrero.

Difference between ICJ and PCIJ

1.​ ICJ provides for chambers to try special cases. There was no such provision under PCIJ.
2.​ The statute for ICJ can be amended but not in PCIJ.
3.​ Earlier the judges were elected for 9 years. It was criticised for being to long. Under ICJ,
five judges will retire every 3 years. Rotational basis. tenure- 9 years

Composition of ICJ
-​ 15 judges who are called the members of the court.
-​ Maximum regional representation will be given.
-​ Judges will be chosen from the list prepared by the secretary general and will be placed
before the general assembly and security council.
-​ Qualification- persons of high moral aptitude, high experience in the concerned field, no
political or administrative interest in that seat.
-​ If they have any kind of interest in that seat - disqualification.

Grounds for Disqualifications of members

1.​ If they have any kind of interest in that seat.
2.​ If they are representing a case as an advocate.

Who all can access the court?

-​ States can access ICJ.
-​ Individuals have no access to ICJ.
-​ International organisations do not have access to ICJ for contentious jurisdiction
(disputes) but for advisory opinion, they can approach the court.

Members and non members (is there a difference) article 93.

-​ Para 1- Members of UN have ipso facto right to approach the court.
-​ Para 2- non members of UN have right to approach the court but there are certain
conditions:
1.​ There have to abide by the rules and provisions of UN charter.
2.​ Abide by the obligations of UN charter.
3.​ Agree to undertake the expenses of the organisation.

Juridiction
 1.​ Contentious jurisdiction: jurisdiction which is based on consent of the states. Consent
can be given before (by entering into a treaty) or after the dispute arises.
a.​ Voluntary jurisdiction: consent given before the dispute
b.​ Ad hoc jurisdiction: consent given after the dispute
c.​ Compulsory jurisdiction: no compulsory jurisdiction but there is one provision when
compulsory jurisdiction is accessible. State may make a declaration that whenever a
dispute arises, they will be bound by compulsory jurisdiction. In 1974, India agreed to be
bind by compulsory jurisdiction of ICJ. This declaration was revised in 2019, there were
some restrictions and limitations so that India is not bounded to abide by this jurisdiction
in certain conditions. The limitations are:
-​ Disputes in which India has agreed to settle via other methods of settlement. Eg:
negotiation or conciliation.
-​ Disputes in which the government belongs to a member of common wealth states.
-​ Disputes which are within the domestic jurisdiction of India.
-​ Disputes in which actions are taken in self defence.
-​ Disputes in which a treaty is concluded under the auspicies of the international
organisation.
-​ Disputes in which there is no diplomatic relationship with the other country.
-​ Disputes with non sovereign states or territories.
2.​ Advisory jurisdiction: article 65 of the statute of ICJ. It is taken by general assembly or
security council. But special power to give advice to committees. CASE: WHO used this
advisory jurisdiction. Advisory opinion resquested by WHO (1996)
-​ if want to follow advice. Certain conditions:
1.​ They must be specifically authorised.
2.​ The advice they are seeking must be in the scope of their work.
-​ The advice asked by WHO- in view of the health and environmental effects, would the
use of nuclear weapons by a state in war or armed conflict be a breach of it’s obligations
under international law including the WHO constitution?
-​ The court stated that it is talking about the legality of use of nuclear weapons. So advice
was nor given as it was out of the scope of their work.

Article 38 of ICJ, sources of international law, and they will be followed in their chronology.
1.​ International treaties
2.​ International customs
3.​ General principles of law recognised by state
4.​ Judicial decisions and Writing and public works and jurisdiction work
5.​ Decisions and determinations of international organisation and institutions.

Finality of orders
-​ Article 59: if the parties agree to take the dispute to the ICJ, the judgement is binding on
the parties.
-​ Article 60: There is no appeal against the judgement of ICJ. It is final.
-​ The security council will enforce the judgement.