CONCEPT & BASIS OF HUMAN RIGHTS

Comprehensive Master Study Guide & Exam Notes

1. Individuals in International Law

• Classical Period: International Law was traditionally concerned solely with sovereign States. Influenced
by the theory of State sovereignty, rules were created by States and valid only for them. Individuals held no
legal significance and were treated merely as objects rather than subjects.

• Post-WWII Transformation: The aftermath of the Second World War triggered a paradigm shift. The UN
Charter Preamble ("Peoples of the United Nations") emphasized individual human value. Individuals are
now recognized as real subjects and beneficiaries of International Law, holding direct rights and duties.

• Restricted Legal Personality: While States possess "unlimited personality" in the international arena,
individuals possess a "restricted personality," meaning their international legal capacity remains
constrained and largely dependent on state-mediated enforcement.

2. Meaning and Nature of Human Rights

• Inherent & Inalienable: Human rights are fundamental entitlements possessed by individuals simply by
virtue of being rational human beings. They are absolute birthrights that operate universally across all
socio-political boundaries.

• Universal Status: These rights must be protected and respected irrespective of an individual's caste,
creed, religion, sex, or nationality. They cannot be taken away by any Act of Legislation or government.

• The Principle of Human Dignity: Human rights are inextricably bound to human dignity. Dignity serves as
the core foundation of freedom, justice, and peace, protecting human beings from unjust, degrading
treatment and arbitrary power.

3. Importance and Functions of Human Rights

• All-Round Welfare: Essential for the physical, moral, social, and spiritual welfare of humanity, enabling
individuals to develop their personalities to the absolute fullest.

• Protection of Vulnerable Groups: Serves as a crucial safety net protecting marginalized groups—
including women, children, refugees, migrant workers, disabled persons, and indigenous communities.

• Basic Needs Fulfillment: Guarantees essential survival parameters such as access to food, water,
medicine, clothing, shelter, and education.

4. The Three Generations of Human Rights

• First Generation (Civil & Political Rights): Rooted in 17th-18th century reformist theories (English,
American, French Revolutions). These are "Negative Rights" that require the State to *abstain* from

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 harmful intervention. Examples include the right to life, liberty, privacy, property, fair trial, voting, and
freedom from torture.

• Second Generation (Economic, Social, & Cultural Rights): Strongly influenced by the Russian
Revolution and principles of social equality. These are "Positive Rights" requiring active state intervention
and resource allocation. Examples include the right to work, fair wages, education, housing, healthcare,
and social security.

• Third Generation (Collective / Solidarity Rights): Emerging rights held by communities or peoples
collectively rather than individuals alone. Examples include the right to economic development, self-
determination, peace, humanitarian assistance, and a healthy environment.

Critical Exam Concept: Indivisibility & Interdependence

Human rights form a value-based, holistic system. Civil/political liberties cannot be fully realized without
the baseline fulfillment of economic, social, and cultural rights, and vice versa. They operate on an equal
footing globally.

5. Core Legal Comparison: ICCPR vs. ICESCR

Feature ICCPR (Civil & Political) ICESCR (Economic, Social &

Cultural)

Generation First Generation Rights Second Generation Rights

Nature of Obligation Negative Obligation: Requires the Positive Obligation: Requires active
state to abstain from violating liberties. state policy, funding, and systemic
intervention.

Timeline Immediate Implementation: Must be Progressive Realization: Achieved

granted fully and instantly upon gradually over time based on
ratification. "maximum available resources."

Core Examples Right to life, fair trial, speech, voting, Right to work, fair wages, education,
freedom from torture/arbitrary arrest. adequate food, housing, healthcare.

6. Legal Status and Sources of Human Rights Law

• International Treaties: Legally binding instruments (e.g., UN Charter, ICCPR, ICESCR, and regional
conventions like the European/American/African Charters).

• International Custom: Widespread, consistent state practices followed out of legal obligation. Customary
law universally prohibits heinous violations like genocide, slavery, slave trade, torture, systematic racial
discrimination, and prolonged arbitrary detention.

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 • Judicial Decisions: Determinations by international tribunals (e.g., International Court of Justice,
European Court of Human Rights) that shape, refine, and enforce human rights laws.

• Official Documentation: Multi-lateral resolutions and declarations (e.g., the 1948 Universal Declaration of
Human Rights, Tehran 1968, Vienna 1993, 2005 World Summit) that serve as global standards.

7. Historical Evolution: Ancient Foundations to Early Codification

• Babylonian & Ancient Near East Codes: King Hammurabi's Code (c. 1750 B.C.) established early
baselines for justice, property rights, and fair wages. Similar early protections were observed in Assyrian
and Hittite legal systems.

• Eastern Philosophies: The concept of *Dharm* in the Indian Vedic period, alongside teachings of Lao-
Tze and Confucius in China, established deep-rooted humanist principles regarding ethical obligations.

• Greco-Roman Jurisprudence: Plato, Aristotle, and the Stoics developed early concepts of natural law.
The Roman jurist Ulpian famously declared under *jus civile* that, by the law of nature, all men are born
free and equal. Cicero defined natural law as unchanging, universal reason.

• The Magna Carta (1215): English barons forced King John to grant concessions, introducing foundational
protections against arbitrary crown actions. It protected property from seizure, regulated taxation, barred
imprisonment without trial, and established jury trials.

• 17th-18th Century English Milestones: The Petition of Rights (1628) outlawed unrepresentative
taxation and arbitrary jailing. The Bill of Rights (1689) cemented Parliamentary supremacy over the
crown, demanded free elections, and explicitly banned cruel and unusual punishments.

• Enlightenment Declarations (1776 & 1789): The American Declaration of Independence & Virginia
Declaration (1776) declared that all men are naturally free and independent with inherent rights. The
French Declaration of the Rights of Man and the Citizen (1789) codified that men are born free and equal
in rights, defining those rights as liberty, property, security, and resistance to oppression.

8. Key Concepts to Know for the Exam (Extended Framework)

• The International Bill of Human Rights: A collective term for the core framework comprising the
Universal Declaration of Human Rights (UDHR, 1948), the ICCPR (1966), and the ICESCR (1966).

• Derogable vs. Non-Derogable Rights: During official public emergencies, states may temporarily
suspend certain ("derogable") rights. However, certain absolute rights (non-derogable), such as the right
to life, freedom from torture, and freedom from slavery, can never be suspended under any circumstance.

• Correlative Nature of Rights: Rights and duties are inherently linked. An individual's possession of a
legal right imposes a corresponding binding duty on the State to protect, promote, and fulfill that specific
right.

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