r UNIVERSAL PROTECTION OF HUMAN

RIGHTS
81 5 -
(vi) to play an active role in removin
challenges to the full realizar 9 the current Obst
the
of a!I human rightstcles and in meeting
(vii) to provide advisory ser vic etn
l and fina .
of the human rights to State ' technica respect
at their request an;c1a1 assistance in
(viii) to take steps for the enh s
promotion and protection ofahnuma cement of inte~nat·ional coope t·
n r'1 h ra ion for the
s of U.N . Hig h Com . . 9 ts.
The prioritie . m1ss1oner on H
Med' uman Rights w
Assembly an d were contained in the mm ,u~-Te~m Plan, 2002• set by the General
993 Vie nna Declaration and Progra 2005e~h
followed the
1
nce On Hum an Rig hts and ~ho Action, Which was dev~I e plan of the 1993
e Charter of the uN
wor ld Con fere oped out
N Bodi'e .
(E) Other U· · s Pnmarily concerned ·with ·
hum
addition to the above U.N. bodies the ar~ other U.N. bodies primarilya~ rights.-_, n
24 re
human rights such as special of erned ~1th
~n ecolonization, Special Com ~nc
Apartheid, Special Committee to inv i~~n~:
~s~t~~srae_li Practices Affecting H:!~eR~
th_e Population of th~ Occupied Terri~sr~ of the Inal iena ble
mittee mm,ttee .o~ th~ Exercise
Rights of ~he Palestmean People, Com Disc rimi nation
h Co ~n ~he Ehminat,on of Racial
Human Rights Committee, U.N. Hi list is simply
tte. mm,ssioner for Refugees. This
illustrative and by no means exhaus
Ill. Universa l Declaration of Hum an R'1ghts•
. .
The Universal Declaration of Hum a A' h 35
ten~ o ,g ~s Th was adop tE~d by the General Assembly
by a vote of 48 to nil with eight abs ns.
3
e Declaration has bee n hailed "as an
historic event of the profound si n·. nd te~t ach ieyements of
~n~e t~ ~s one of t~e grea
the United Nations. 37 The Declar~ti~~
11

ing thes ·~-~~ght~ ~ine fbrom wh1cdh othebein r ~onvent1~s as well

as nationa l con stitution s pro tect een an are g quarned "38 As
noted abo th ·o I • on Human Rightsave was prep ared by the Commis~ion on
. ve, . e ec arat1on on December
w~s adopted by the General Assembly
Human Rights in 1947 a~d 1948 and ado pted , it was a most
10, 1948. When ~he Urnvesal Dec
laration of Human Rights was war in the
ld emerging from the mos t dev asta ting
. e!oquent expression of hope by _a wor e the Universal Declaration a momentum that is
gav
history of _human race. The experience the right to
cted in the bold nes s of this doc ume nt destined for a world of peace where
~efle_ ann iversary of
all. 39 On December 1o, 1998, 50th
llv~ in peace has become a reality for was celebrated all over the world.
Universal Declaration of Human Rights ne of the
Preamble of the Universal
Declaration of Human Rights.-O
righ ts in the U.N.
provisions concerning human
main reasons for the inclusion of the the mankind had undergone during the First and
h
Charter was the bitter experience whic tions of human rights were made. That save
is why,
rs whe n larg e sca le viola
Second World Wa Charter expresses the dete rmin atio n "to
the preamble of the United Nations of War" which twice in our lifetime has brought
urge
succeeding generations from the sco in the dignity
to man kind , and '1o reaf firm faith ·in fundamental human rights,
untold sorrow en ... " Thu s large-scale
equal rights of men and wom
and worth of the human person, in the World Wars, epecially the Second World War,
violations of human rights during two In the minds of the framers of the U.N. Cha, .ur.
h
including the Nazi atrocities were fres

• IAS (2006) Q. 7(b). ial Records, Third

Gen . Ass. Res olution 217-A (111 ) of 10, December, 1948: Gen. Ass. Offic
35.
Session, Part I, Resolutions (U.N. Dec.
A/810), pp. 71-n.
Arabia, South Africa,
38. The eight abltentlon1 were : Bylo
russlan, Czechoslovakla, Poland, Saudi
Ukrainian, USSR and Yugoslavia.
Human Rights, p. 394.
~- Sir H. Lauterpacht, lntsmatlonal Law and ett, The Growth ol
38. J.E.S. Fawcett, The Law of Natio
ns, (1968), p. 158; See also Percy E. Corb
World Law(1971), pp. 181-182.
ch, 1988), p. 46.
39. U. N. Chronicle, Vol. XXV, No. 1 (Mar
 INTERNATIONAL LAW
816

That is why, one of the first d~c · · s that the Gene ral Assembly too k was to prepare .. n
1s1 tor this purpose asked the E
International Bill of Human Rig on I
con om c and Soc~ial
hts _a~d t Human Rights. Th
Council tor a study by the Co~ e lar ge scale violations
human rights including the Na
m1ss1~~e~ we re also fresh in
the min ds of those drafted 01
z, at~oc, of Human Rights. The
and adopted the Universal De se are ech oed and reflected
claration lso natural tor the framers of
in the wordings of the Pream the Preamble to
ble . It was \ hts in the dig
affirm "their faith in fund~ment nity and worth of the human
al hu~n:~d !om ~n ." because
person and in the equal_nghts they con:id red, and rightly
too, it to be the "foundation of
of me ·ustice and peace is the 7
world. It 1s _In this context
1
that we -have to see and undfreedo~ , reamble of the Universal Declaration of Huma
erSlan P n
Rights which is as foll_~ws :
. h nt dignity and of the equ
Whereas recognition of th~ 1~ al and ina lien abl e rights of
all members of the human fam 1 ~~! foundation of the freedom, justice an d pea
, Y is ce In the
world. . .
. d t mp
Whereas disregard an co n·\ t for human rights have resulted in barbarous acts
ce of mankind and the adv
which hav_e outraged ~he fconds.., ent of a world In which
human beings shall enJOY ree 0" 'me of speech and belief and freedom from fea
has been proclaimed as the hig r and want
hest aspirations of the commo I
Whereas it is essential, if ma n peo p e.
n is not to be c~mpelled to hav
resort to rebellion against tyra e rec~urse, as a last
nny and oppression, tha t hu
protected by the rule of law. ma n beings should be
Whereas it is essential to pro .
mote the development of frie
ndl y relation betw~n
nat io:~ ere as the people of the
United Nations have in the Ch
fundamental human rights, in arter rea ffir me d -~heir faith in
the dignity and worth of the hum
rights of men and women and an ~[Link] an d m the equal
have. determined to promote
standards of life in larger freedom soc1a1 progress and better
.
Whereas Member States hav .
e pledged themselves to ach
the United Nations, the promo ieve, in co-?peration with
tion of universal respect for
rights and fundamental freedom and observation of human
s.
Whereas a common unders
tanding of these rights and fre
importance for the fuil realization edo ms is of the greatest
of this pledge,
Now therefore, ·
The General Assembly procla
ims this Universal Declaration
common standard of achievem of Hu ma n Rights
ent for all people, and of all nat
individual and every organ of ions, to the end that ·
society, keeping this Declarati
strive by teaching and educat on constantly in mind, :S
ion to promote respect of these
progressive measures, nation rights an d freedoms
al and international, to secure
recognition and observance, the ir uni ver sal and eff
both among the peoples of Me
among the peoples of territories mber States themselves
under their jurisdiction.
Sc he me of the En um era
tion of the Rig hts an d the
in the De cla rat ion .-The Rig hts Enumera
Universal Declaration consis
above and Articles 30 coverin
g both civil and political righ
ts of a Pre am ble as n fl I
,,·
cultural rights. The Preamble ts an d eco nom ic, soc ial
refers to the "faith in fundament J,
and worth of the human person al human rights in the dig -C1
and the equal rights of men and
of the U.N. have reaffirmed in women" which the peo
the Charter of the U.N. and the
social progress and better sta ir det erm ina tion "to pro
ndards of life in larger freedom
taken by the Member States ." It als o ref ers to the pl
"to achieve, in co-operation
promotion of universal respec wit h the Un ited Natlona,
t for the observance of hum
freedoms." Through the Pre an rig hts an d fundame
amble, the General Assembly
Declar~tion of Human Rights pro cla ime d the Unlve
"as a common standard of ach
all nat1o~s to the end !ha t _ever ievement for all peoples
y indivi~ual and every organ
declaration constantly m mind, of the soc iety , keeping
shall strive by teaching and edu
cation to pro mo te rea
 UNIVERSAL PnOTECTION OF HUMAtf F11cms
817
for these right·
s and froedoms and by pr,., .
·
secure th air urnversaI and effactive . recog ,/,jre,
nitio-;r19 rriA"'-
' •? , Jr~1. r,.:1!.~t'l;JI ar.,:, .1n~':!rr.a:.0r
1
.al ro
of Member States themselves and am n anrJ
r..1i·P.r13r,~ . t°h'h arrr~-'J u-.~ ;;~,:,~•~'>
Jurisdiction". The Preamble also notes the ;~n~ tt, 9
~l),._.~191 ,:;f tl)rr.~-:,r.~, i.r,1i.:r !Mir
to proclaim the Declaration of Human Rigtt" a.: 11
'llt,ir,h 1r:-.~n~1 tt~ G~r-~r;i /..:..~rr:::.1
after havin_g stated .•~is in the Preamble, ;h~aG" al~
tt,:!•l)i::-J f,;r ~;...t, V'l..!,:3,:~.a· (.,n a:-1.!
rights-civil and poht1cal as well as economic •0:ral
A,'i&:rr.t,11 7P-~ C,r) !? V'l..!a-~ t:-.9
Declaration is neither addressed to nati ons ~~'~
This is in keeping with the words "We the rplo ..
am ci...l~,...r;sl. It ~:J/ ~ rr..~:::1 ·.r.a~ :.'".-:J
. , Charter comme peo Te~[Link]
err~ r s,.r,'!', t:..1 to r.r,~~, ~,~:
.. ·•01r 1~,, ... ~" · .... '-, r~~I .
preamble of f tH he UN
. nces . he • ..,, • ~ ...,. ·.. " ·'
ri~~.ts ,.._,.,,,~ -~ ,, ... ,. u-- -,- -1 " · ·--
..... p
· "·~
Declaration o uman Righ ts may be cla" if' d · "' . ,, . .,....... · • ~
:r.g fr;,..;t c;t'.;:,r.r · • J • • -: ~
. 1 1
.:.S 1e into fclkm • •• ..
(i) General (Articles 1 and 2)
·- ~..,, ~ ·
(ii) Civil and Political (Articles 3 to 21)
(iii) Economic, Social and Cultural Aigt".ts
(iv) Concluding (Articles 28 to 30)
w.:ci~ 22 !C lTJa.'t.:

(I) General.-Article 1_ of ~he Universal Dec!aratcn ~~·

are born free and equal in dignity and rights. They la :.-..a: a.i :-:.--a-. ~ :---:;;
are er:c:c·1.o/.: ,. :.-. :¾:.:..-: a:.::
conscience a~d should act towards one another in
a s~int cf t:.r::.:-:e~.GO!. ;.:-~ 1 :-:.:;
proclaims the inherent freedom and equality in Qgni
tJ ar.d r.~.s cf a.1 !".u:-r. :F--..:,;:..
Accordin_g to A~icle 2, _e~ery~ne is entitled to a!I tt.e
this Declaration, without d1stmct1on of any kind, such rig-.:s a:-.d t:~. :-:; ~ •:-:-: ~-.
as, race. ~c,._r, Sci. ~-;- 2:~.
reli~ion, political or other opinion, national or social
[Link], prc;:e~/. ::~ :r =e n-~
Furthermore no distinction shall be made on the bass
international status of the country or territory to which cf tt-.e ~::ca:. ;---=.-..- -;-a ::r
independent, trust, non-self governing or under any
a per.>Cn te:c r~
ctt:er lr..":.a::cr: cf s.7, ~ ri.
-,.-~-=-~ .! ✓•

As noted above, a remarkable thing about the Ur

..versaJ Cec!.:.-~::~ s :-~: : !
neither addressed to nations nor Member States of the
U.N. ct..t to e,sr-1 .--a.--..,. 7-~ :=
evident from Articles 1 and 2. Article 29 also deserves
[Link].::cn ir: ~,;s :::s::ee:..
(ii) Civil and Political Rights.-The civil and pcC:
cal r:~ :.:a e:-:-a ~= .::.::·
the Declaration include the following :
(1) Right to life, liberty and security of perscn.-CJ
(2) Prohibition of slavery and slavery trade:"
(3) Prohibition of torture, cruel, inhuman er
c.:;:-a::~; =:-:. !:-;-! .....
punishment.42
(4) Right to be recognized as a person befcre la·N•.a::
(5) Equality before the law and equal _p~e-.:::.::
: :::~ ~• ~;.! -~: .:->·
discrimination in violation of the Dedaratim.
_
(6) Right to effective remedy by the competent ru!:C1
:..!! ::-~-.l.s.~
(7) Prohibition of arbitrary arrest. detention or ex=e
:'-i • .
(8) Right to a full equality to a fai, and pu~ic t:IN~
~~ ~ .!.i ."'\:;:-t~~:-.: .?.:-.j
impartial tribunal.47

40. Article 3.
41. Article 4.
42. Article 5.
43. Article 6.
44. Article 7.
45. Artlclo 8.
46. Article 9.
47. Article 10.
•
 INTERNATIONAL LAW
818
. t until proved guilty according to law in PUblic
Right to be presumed innocen
(9)
trial. 48 49
'10) Freedom from ex-po5t facto laws. . · •
' · . interference with privacy, family, home
(11) Freedom from arbitrakry honour or reputation and right to protection by'
correspondence or attac on 50
law against such interference. . .
- f ment and residence within the borders of State s1
(12) Right to freedom o movtery including his own, and to return to his count~ 52
(13) Rigr.t to leave any coun , . f . ·
( 14) Right to seek and enjoy in other countries asy 1um rom prosecution in
53
respect of political crimes. ·
(15) Right to nationality. 54 . . . .
( 16) Freedom · from arbitrary depnval of nationality and right to change
nationality. 55 . .
(17) Right to marry and to found a family and equal nghts as to marnage, during
marriage and at its dissolution. 56
(18) Right to own property and freedom ~1om arbitrary deprival of property.57
58
(19) Right to freedom of thought, conscience and religion.
59
(20) Right to freedom of opinion and expression.
(21) Right to freedom of peaceful assembly and association. 60
(22) Right to take part in the government of his country. 61 and
(23) Right to equal access to public service in his country. 62
(iii) Economic, Social and Cultural Rights.-Economic, Social and Cultural
Rights are enumerated in Articles 22 to 27. They are : ·
(1) Right to social security and the right to realization of the economic, social
and cultural rights indispensable for his dignity and the free development d
his personality.63
(2) Right to work, free choice of employment, just and favourable conditions of
work and protection against unemployment. 64 •
(3) Right to equal pay for equal work.65 ·
(4) . Right to just and favourable remuneration.66
(5) Right to form and to join trade LJnions.67
•
48. Article 11 , para 1.
49. Article 11, para 2.
50. Article 12.
51. Article 13, para 1.
52. Article 13 para 2.
53. Article 14.
54. Article 15, para 1.•
55. Article 15, para 2.
56. Article 10, para 1.
57. Arti<.;lo 17.
58. Articlo 18.
69. "'1icle 19,
eo. Artlclo 20,
61. Art~lu 21, puru 1.
• 62. Article 21, para 2.
83. Article 22.
84. Article 23, para 1.
85. Article 23, para 2.
• 88.
ffl.
Article 23, pi:ua 3.
Article 23, para 4.

• •
UNIVERSAL PROTECTION OF HUM . 819
AN RIGHTS
(6)
Right to rest and leisure ea
(7) Right of liv' · · If and his
family;69 rng adequate for the health and well-being of himse
(8) -Right of all ch'ld
1 . 70
(9) Right toed . ren \ 0 enJoy same social protection.
7
(10) R' h ucat,on. 72
(11) R:g h! ~ par~[Link] to choose the kind of education for their children.
73 .
( 12) Rig ht particrpa!e In cultural life of the community . and
~ . t_o ~rotectron of moral and material interests resultIn9
4
from any
(Iv) C screntrfrc, literary or artistic production of which he is the author.
referred as oncludi_ng or Miscellan eous Artlcles.- Articles 28 to 30 may th be
above thr conclud,_ng or miscellaneous Article because they do not fit in any of e
so . e_e cate~ones. For example, Article 28 provides that everyone is entitled t<:> a
1
Cl~ ar~ rntern~tronal order in which the rights and freedoms set forth in this Declaratio n
can . ~ u realized. Besides this Article 29 (1) is an exception because this is the only
!Y
provision rn the ~hole Declaration which speaks of duties. Article 29 (1) provides th~t
everyon~ h~s dutre_s to the community in which alone the free and full developme nt of h~s
~ersonalrt y rs possible. However, Article 29 (2) makes it clear that in the exercise of hrs
rights and freedoms, everyone shall be subject only to such limitations as are determine d
by law solely for the purpose of securing due recognition and respect for the rights and
freedoms of others and of meeting the just requirements of morality, public order and the _
general welfare in a democratic society. Article 29 (3) further provides that these rights
and freedoms may in no case be exercised contrary to the purposes and principles of the
United Nations.
The last Article of the Declaration, namely, Article 30, incorporat es a rule of
interpretat ion or a saving clause by providing that nothing in this Declaratio n may be
interpreted as implying for any State, group or person any right to engage in any activity
or to perform any act aimed at the destruction of any of the rights and freedoms set forth
herein.
Influence of the Universal · Declaratio n of Human Rights (General )*
.-Since its adoption the Universal Declaration has exercised a powerful influence, both
internation ally and nationally, it has been rightly pointed out, that "Whatever its legal
quality, the Declaration has set a standard by which national behaviour can be measured
and to which nations can aspire. The Declaration has helped to give contour and content
75 Fawcett
to the generalitie s of the Charter reflecti_ng the spirit and ~he n~eds of the day."
has also remarked "The U.N. Declaration on Human Rights rn 1948 was a public. and
indeed a global proclamation of "a common standard of achievement for all peoples and all
nations' ... it (i.e, The Declaration) is the mine from which other convention s as 7well as
national constitutio ns protecting these rights have been and are being quarried.• 6 As a
result of the Universal Declaration, "The subject of human right_s ~as fostered so much
internation al legislation of the highest value that a~ legal topic 1t has_no parallel to~
day ... Human rights have cov~red a wide variety of different asp~cts of hfe ~a':lging from
genocide and prevention of discrimination to freedom of information , assoc1atto n. status

68. ArtiCle 24.

89. Artiele 25, para 1,
70. Artlcle 25, para 2.
71. Artlcle 28, para 1.
72. Artiele 28 para 3.
73. Artiele 27, para 1.
74. Artiele 27, para 2.
• UPPCS (2005) 0. 8. ,.
75.

76,
1
J
~: ~~=-.
.Loul1 Henkin, -rhe United Nation• ancJ t-tuman Rtuhta Int. O tt,111., Vol. XXI , No. 3 (SurnrnPr,

Th• Law of Nat/0116, (1968), p. 156.

•
 INTERNATIONAL LAW
820
· b'ect is all embra cing and in this respect no Oth
th e !~~rac ing charac ter affecti ng the life of a cornrn er
of women, refugees, etc. Thu_s or,
topic can be said to have this all
man.
77
. la ration on Human Rights are cited as justificar
tions b~or,
The -provisions of the Universal D~~ve also inspire d interna ti?nal conven
tion h th
for actions taken by the U.N. ihey number of instances, the Univer
within and outside the U.N. In a arge dstick to measu re the degree
sal Declara
of respect for a ci
been used a~ a co~duct ~nd
compli ance with the internationa s
f ra:dard
a
of human rights.
.
n

. 1 Declaration on Human
Rights were transformed int0
. Th~ provisions o! the Univ~r s~e International Coven ants on Huma n Rights. Whic
1 n Human Rights are known as International Bill Oh
international conyentional law 7.1
alongwith_ the Un~ve ~e~~c;
r:~ :~ i~e~al Assembly on Decem b~r, 16, 19~6. Later on the~
Huma~ Rrghts, i f/
0
I
d ~ large number of States. Beside s this, a considerable number
eff~ct after 1948
~e~~h!if~n~~r~~ti;ia I '~onventions were prepared, adopte d _and put into
t th • hts and freedoms proclaimed in the ·Univer sal Declar ation on Human
. · II f t th D I ·
to 1mplem en e ng e e~ arat1on or
Rights. The preambles of those conventions ofte_n s~ec1f1ca Y re er o
co~vent1ons .. Some
reproduce tile relevant provisions of the Declaration m the text of the
others are of a region al or bilateral
of these conventions are of a world wide character,
character.
In an ongoing effort based on principles contain~d in the Dec_laration,
the U.~. has
mclu~e conven tion on
adopted some 50 other legal instruments on human nghts. T~ese s,
tIon of refugee
Genocide, Slavery, Torture, Racial Discrimination, Aparth eid, prote~
t worker s and
children, discrimination against women, protection of the. rig~ts of all migran
relating to Human itarian Laws of War, etc.
members of their families, conventions
Human Rights
The rights and freedoms enshrined in the Universal Declar ation on
as. Declaration
have been incorporated in various Declarations adopted by the U.N., such
ndenc e to Colonial
on the Rights of the Child {1959); Declaration on the Granting of Indepe
Forms of Racial
Countries and Peoples {1960); Declaration on the Elimin ation of all
of Discrim ination agains t Women (1967);
Discrimination (1963); Declaration on Eliminacion
Progre ss and Development
Declaration on Territorial Asylum; Declaration on Social
); Declar ation on the
(1969); Declaration on the Rights of Mentally Retarded Persons (1971
and for the Benefit
Use of Scientific and Technological Progress in the Interest of Peace
; Declaration on
of Mankind (1975); Declaration on the Rights of Disabled Person s (1975)
Cruel, Inhuman or
Protection of all Persons from being subjected to Torture and other
of Child (1975);
Degrading Treatment or Punishment {1975); Declaration on the Rights
ance and Discrim ination Based
U.N. Declaration on the Elimination of All Forms of Intoler
of Individ ual who are not
on Religion or Belief (1981 ); Declaration on the Human Rights
Nationals of the Country in which they live {1985); Declaration on the right
to Develo pment
(1_986); Vien~a Declaration on Human Rights {1993); Declar ation
on the Elimin at~ of
mme of Actton
Violence Against Women (1993) and Copenhagen Declaration and Progra
on Social Development (1995); Declaration on Terrorism.
Conventions
More Important than the above declarations are various Interna tional
on Human Rights
which have been influenced and inspired by the Universal Declarations
les of such
bf:caus~ these con~entions create legally bindin g obliga tions. Examp
for the Suppre ssion of the Traffic in Persons
International Con~ent1ons are : C_on~en:lon
and of the Explo1tatlon o~ Prost1tut1on of others (1949) ; Conve ntion on the Status o!
ment of the Genoc ide (1951).
RefugfJE,~ (1951); Conven_t1on on. the Prevont!on and Punish of
Conve ntion on the Status
Convention on thFt Political nlgtits of Wornon ( 1952); . the
for Abolis hing Slavery
Stateless Persons ( 1954); Supplorrruntmy Gonovu Convontion

n. CJr. : Nagendra Slnyh, f-ltJl:,mt Tromls In thu Dovt1/upmunt of lntemational Law

and o,gan;sa_tkJI'
Lecture, 1969), P·
Promoting lnlur-Slulo Cooµum/1011 (Univun,lly of Ounwu , Inaugural Nehru
1~ '
 821
UNIVERSAL PROTECTION OF HUMAN RIGHTS
ntion on the
Slav e Trad e arid lnstit r Simi lar t? Slav ery (195 6); Con v~o ur ( 1 957 );
Nati ona lity of Mar rie~ ions and Practices ed La . ( 1960);
Con vent ion Cone . ~o~ e~s (195 7); Convention on the Forc upa ~~~ sent to
ect to Employment and_ Occ
Con ven tion on t~~m~g Disc~immation in resp t1on o~ erna tion al
eduction ?f Statelessm;Js (196 1 ); Cc:>nven
Marriage, Minimum
Con vent ion on the e1g~ to~ M~mageForm and Registration of r..:,a~na~es (196 6),
n (196
2):
n
:n:
e_
rnat iona
cial
l
s of Racial Discnmm at1o
Cov ena nt on c· . ndimm~~ion of All '. ~oand
cal ~igh ts (196 6); International Covenant on Economic
and Cultural RilVII a 1 Pollt~
9 6 to the International Cov ena nt on Civ~l.10nal.
Political Rights (~~~~ )~ 6), Optional Protocol (196 7); ln~erna
Con ven tion ' Pro_tocol Relating to the Status of Refugees Apa rth~ id ( 197 3 ),
ent of the Crim es of
lnte rnat io I on Suppr_ession and Punishm Hos tage s (197 7); Convent~on on .th0
ng of
Elim in r na Con vent ion Aga inst Taki
Aga inst Women (197 9)· Con vent ion Aga mS t
Tort a ion of All Form s of Disc rimin ation 198 4) ;
nd 0th l, Inhu man or Deg radin g Trea tmen t or' Pun ishm ent (
c ure .a er Crue
Convention on the Protection of the Righ ts
of
alf~ ~en tion on th e Rights of Child, (198 9); (199 0).
grant Workers and Members of Their Families th e
of Justice have cited to the prov ision s of
U . The Judg es of the International Court case
number of cases, such as, the Asy lum
nive rsa_l Declaration of Human Rights in a
Co. Case (195 5); and Nott eboh m case.
( Colo mbia v. Peru ) [195 0]; Anglo-Iranian Oil
n is the European conv enti on for the
A~ impo rtan t .example of regional conventio
Freedom signed at Rome on 4th Nov emb er,
prot ectio n of Human Rights and Fundamental
ion proclaims that it was agre ed to by the
195 0. The prea mble of the European Convent ctive enforcement of certain of the righ ts
colle
Stat es part ies ''to take the first steps in the
it cont ains detailed provisions on the mos t of the
stat ed in the Universal Declaration", and on
laration. Indeed the European Con vent ion
Civi l and Political rights set forth in the Dec s and free dom s
the enforcement of the right
Hum an Righ ts is the first convention for vent ions , such
r on some other Regional Con
men tion ed in the Universal Declaration. Late e
ed on October 18, 1961 and cam e into forc
as, Euro pea n Social Charter (which was sign sign ed on
ion on Human Rights (which was
on Feb ruar y 26, 1965 ), American Convent
July 11, 1978 ), African Cha rter on Hum an and
Nov emb er 22, 1969 and came into force on
27, 1981 and came into force on Octo ber
21,
Peo ples Rights (which was adopted on June
1986 ) and Arab Convention on Human
Rights were concluded.
tion on Nat iona l Con stitu tion s,
Infl uen ce of the Uni vers al Dec lara l
ns.- The prov ision s of the Univ ersa
Mun icip al law s and Cou rt dec isio afte r
d various national constitutions ena cted
Dec lara tion of Hum an Rights have influence
For example, the Con stitu tion s of Alge ria,
the ado ptio n of the Universal Declaration.
ublic of Congo, Dha ome y, Gun iea, Gab on,
Buru ndi Cam eroo n, Chad, Democratic Rep n
Niger, Senegal, Togo and Upp er Volt a (whe
Iver y c~a st, Madagaskar, Mali, Mauritiana, mnly
196~ ). the peQEles of !hes e coun tries sole
atta ined inde pend ence between 1_95~ and ~rsa l Dec lara tion . The
and 1de_als of _t~e Univ
affir med thei r devo tion to the -principles ~er of law and
foun_d m mun1~1p~I law m a num
prin ciple s and ideals of (?eclaration ~re also s the 1mp a~t of the
ln~ian Constitution bear
dec rees ena cted in various. countries. The rt of ln~ 1a. Whi le
gn!sed ~y the Supreme Cou
Univ ersa l Declaration and this has ~een reco d in Part UI of the Con stitu tion in
f rring to the Fun dam enta l Righ78ts cont aine of t~e Supreme Court obse rved : "I am

~
:::,~a~
~e and Bhartiv. State of Kerala, Sikri
hold that these provision~ show that some
a mat ter of fact, India was a part y to
, C. J.
rights are n?t natural or inali ena ble
the Univ ersa l Dec lara tion of
desc ribe s som e fund ame ntal righ ts
as
righ ts. AAS.1g hts ... and that Dec lara tion
Hum an
l, C. J . In Statt1 of -~es t Bt1nga/ v. Subo dh
AIR 1973 SC 146 1, 1536; See also Patanjul_l Sastr
[Link], J . In Uuamabaiv . State of U.P. ,
78. al. AIR 1954 SC 92: 1954 SCA 587,596; µerH
; Mo~, Lalv. State of U.P., ILR (1951 ) 1 All 2 691
Gop , ISCA 778 , 926.927 : AIR 1962 SC 1621 r Nath v. CIT (1 959) S upp. 1
(1963 ) IA 1951 All 257 (FB) : Per S. K. Das. ,J. m Bt1shesha '
387-388 : A
SCA 528, 605 : AIR 1959 SC 149.
 INTERNATIONAL. [Link]
822
. . ould not
esc ape the infl uen ce of the Uni
. . "Even the soviet Con stituti~~ ~o v
1 vie t con stit utio n con tain ed "the
inahenab_e. Chapter 7 of the
-~ra
D~ cla rato ~do ms and Duties of
of the U.S
C1t 1ze ~rar mo
rs~1
.S.R .". Thu s the political riahts 8 as,c
. Rights, re h Soviet citizens re com pre hen siv ely formulated"19 ini"hd
freedoms of t e wer e
. e
Constitution.
U ·ve rsa l De cla rat ion of Hu
Legal Sig nifi can ce of t~~ re~ ma n Rights•
~rd to the leg al sig nifi c~n ce
There is a great controve~s~he of th~ Univer~~
re are those .writers wh o sub scr
Declaration. On th~ on~ han , I ibe to the view that the
ally bindir1,::i ins trum ent . On t~e
Universal Declaration 1s not ~s: ot~ er han d, there are
~d the vie w tha t the Declarat1~
some writers who have exp~ . n ~rnght not have been
but it has now bec om e bin din
binding when it w~s adopte 1~ 1948 g or assumecs 11ga1
vie ws the re are a num ber
implications. Besides th e~e ~~h of aut hor s who have
e Univ'ersal Declaration is not
expressed the view th_~t a:\ oug beh leg ally binding yet it has
ind it and serves as a gen era l
a Qreat rr:oral and pill~cfhe 0!~~ ons gui de, code of C0nduct
of men and wo me n and nat ion
~~:~:i;~~~ f~~~n~ 1
0 ~servance of human rights are con cer
s are judged so far aa
ned .
.
Accor dmg to p a lmer and Perkins ao "Th e dec lara tion is merely a
principles, not a legally binding ' · b statement of
· t t· al documents and it has ofte
instrument; but 1t has e?ome on~ of the best 1,..__ _
in erna 10n n been referred to in resolution "'"" '"
Specialized Agencies, regi , s of the U.N., 1he
ona_l arr~ngements and othe_r · t t·
in national constitutions, · leg1slat ~n ern a ~ona I organi • t·
~ ions, and
1on, and Co urt dec1s1on. _It
mankind, even though it has ts a beacon light!"' al
been hon our ed mo r? ofte n in
observance." In the view of Starke 81 the bre ~ch than ll the
, " ... the Declaration cou ld not
be more than manifesto, a statem and did not purport to
ent of ideals, a 'pa th-f ind ing ins
a remarkable influence on further trum ent ' •.. Yet it has had
developments, at bot h the inte
levels, as is reflected in the ·num rna tion al and domestic
ber of instances of con ven tion
referring to, or invoking, its pro s and oth er instruments
visions." Op pen hei m als o sub
According to him, " ... the Declara scr ibe s to this view.
tion is not an ins trum ent wh ich
directly or indirectly. In particular, is leg ally binding eilher
there is no warrant for ass um ing
resorted to for the interpretation tha t it can properly be
82 of the pro visi ons of hum an righ
rights ." The ninth edition of 0pp ts and fundamental
enh eim 's Inte rna tion al Law83
years since its adoptio~ .. the wid add s "Ho wev er. in the
espread acc ept anc e of the aut
has !e? some to the opinion that hor ity of the Qed ara lion
while the Declaration as an ins
provision_ may have come to the trum ent is not a treaty.~
embodiment of new rules of cus
In the view of Lau!erpacht, the tom ary law in the rnattar.•
mo ral aut hor ity and infl uen ce
pronou_ncement of this nature mu of an international
st be in direct pro por tion to the
sovereignty of States which it invo deg ree of sacrifice of "8
lves. 84 Mo st of the wri ters wh
o sub scr ibe to the vi&W
79
·ge; ~eport of Leonid B~ezhnev, CPSU.
General Secretary and Chairman of
~
21 ·_~3 ?
Central 0 mm,ttee on ~a~ 24, 1977, repr the Col sa,#CJftd
· at p. 30, for draft Const1tution see Ibid oduced in New Times. Va 24 ([Link]
pp. 34-48. 1. 1911).
• UPPCS (2005) Q, 8.
00. International Relations Th W
Id C
370; StJs a180 Max
8 - ~ oi ommunlty in Transition, Thir
ly&r, "Mtts1 Ex ulslo orensen s Merwa/ of Public Interna d, Indian Edition (11 $ P.
CcwtJfltt, Tho G~owth ~f~ vlolatlon of Hum tion al Law (196 8), p. 501; V.I<. _. ..
Law of NuUo, II (Alltm Law)o~~h;8; (Pri
81. Stllr1ui1 lnl11r,1ut1una/ Law 'El
an Rights" I.J.I.L. Vol. 13 (1973), p.
nceton, New Jersey• 1971 ), p. 203;
119; ,_.e.
J.E.S. Fewell. 1111
enguln Presa, London, 1968), p. 158.
&2. ()ppwtNtim• l ' uvonth Edition (Buttorwortha 1994)
Edited by I A. Shelll' p. S,O.
2 Ind p. 1003, nlam111011a/ Law' v0 1· 1, Elght
••
'
h Edition, Edited by H.' • ' .... .
a, Oppeni.1m,1 lnt•rnallonal Law NI Lauterpachl. ~ 745; and IW"" '

Arthur Waa., lonoman Group U.K.

14. Sir H. lauterpacht, lnt•matlona/ uaw .;;
L~h Edition, Vol. 1, Edited by Sir Rob .
ert JenninGS and Sir
~ Mra. Tomoko HUdaon, (1992), p. 1008.
uman Rights, p. 419.
 UNIVERSAL PROTECTION OF HUMAN A
that the · IGHTS 823
"has ai~en1versa! Declaration is not a le . . . .
and f~eed d considerable authority as a gally bmui~g instrument, however, concede that it
providi oms as U~derstood by membgeneral guide _to the content of fundam~ntal rights
of t ng a c~nnecting link betwee . ers of the United Nations and it is important as
5 1
he W<;>rl~." Ian Brownile86 n different concepts of human rights in different parts
1
egally btndtng instrument as go~s a st ep ahead and writes : "The Declaration is not a
g~ne_rally accepted rules. Nevse~h' a nd some of !ts prov~sions depart from existing and
principles of law [See the Stat t ~less some of its provisions either constitute general
or rep~es nt elementary cons~de O _International Court of Justice, infra, Article. 38 (1) (c)]
7
auth?r,tat,ve guide produced b erations of humanity. More important is its status as an
- In this capacity, the Declaratid t~e Gener~/ Assefl?bl~ to the interpretation of the Charter.
the Assembly and by som . n . as considerably md,rect legal effect and is regarded by
observations is significant be Jun sts. a~ ~ part of the law of the United Nations. '67 This
the writers in respect of the ecau se it indicates t~e shift that is taking place in the view of
1
. . ega 1 value of the Universal Declaration.
C onst1tutmg Authorit
Customar lnte .
r -
a ive 1nterpretation of Charter and new Rules of
Declaratio~ os rnational Law.-Some ~riters have e).(pressed that the Universal
develo ment P sesses legal value: In view of the significant and revolutionary
h P s !hat have taken place in th~ field of human rights, this view has gained
~uc ground; it has much to recommend itself and merits serious consideration. In the
view of Judge Nagendra Singh, " ... The Declaration, therefore was not mere resolution of
the .~[Link]! -Assembly but a continuation of the charter and had the dignity of the
88
c~art~r." Another eminent author, Prof Lois B. John 89 has also aptly remarked that "any
v1olat1on of the Declaration was the violation of the principles of the Charter''. 9 Further, °
. "The Declaration was adopted unanimously (with 8 abstentions) and thus constitutes the
authoritative interpretation of the Charter, which is binding upon members to the extent
the Charter is binding should an organ of the U.N. find that a particular member-nas failed
to promote the observance of one of the rights listed in the Declaration such a statement
would constitute of finding that the Member has violated Articles 55 and 56 of the
Charter." 91
This interpretation finds support from the 196? Declar8:tion on the Granting of
, Independence to Colonial Countries an? _Peoples which proclaimed th~t all St8:tes shall
" b e faithfully and strictly the prov1s1ons of the Charter of the United Nations, the
Jni!:~al Declaration on Human Rights and the present Declaration." 92 It was further

• rl The Law of Nations, Sixth Edition, Edited by Sir Humphrey Waldock (1963). p. 294;
85. J.L. Brie Y, · ) 156
See also Fawcett, The Law of Nations (1968 , p. . : . .
Basic Documents in International Law, Second EdIt1on (Oxford University Press, 1972), p. 144;
86.
Emphasis added. . ,.
r Principles of Public lnternat,onal Law, Second Ed1t1on (Clarendon Press_
ff!. See also tan Bro~~~•corfu channel case (Merits IEJ Reports (1949), p. 4 at p. 22, A. 0. Obilade
Oxford, 197~), P·. "Althou h the Declaration Itself has no legal force. State practice as reflected.
has also written · bl g solutions has reflected a growling [Link] on the part of the States
some General Assam t· Yreas legally binding." In "The Individual As a Subject of International
rd the oeclara 10n
to rega 14 (1974) p. 90 at p. 95.
Law", I.J./.L. Vo·1 ' pment of lntornatlonal Law and Organisation Promoting Inter-State
t Trends In the 0 eve1o
88, Aecen World Peace (1969), p. 160.
CoOP8ratlon and Ch 8 rter of the Unitod Nations : "The Present Stute of International Law"
1 ,nent of th• 53
89, "The oeveToPhe Netherland,, (1973), p. 39 at p. . H R' ht "C . .
C Kutwar II
Short Hlt1tory ol the U.N. Doournonts on uman 1g s, omm,ssion; to
Louis s. John, A P oa" In tho U.N. and Humun lllohts (1968), pp. 59-72.
90. see
stUdY, th8 organ1
,auon of ea •
SO, . 54 ; emptiaal11 euppllod.
John, $BS supra note A :esolutlon 1514 (XV) of 14th Decomber, 1960. G.A. Official Records.
:: /bid; para 7seo:i; ~~PP· No, 15 (1904), PP• 35-37.
egt,teenth
 CHAPTER 66

OTECTION OF HUMAN RIGHTS

REGIONAL PR
N FOR THE PROTECTION OF HUMAN Rana-..
I. EUROPEAN CONTV:~~~EED OMS (1950) * --·~11
AND FUNDAMEN . f the Protection of Human Rights and fllndan.-.. _
0
The European Conventio; ~ECHR") was signed at Rome on November,~
Freedoms (hereinafter referre b:,s 1953. There are 22 parties to it. They are ; +';.:
entered into force in Septe~ France Germany, Greece, Iceland, Ireland
Belgium, Cyprus , Denmar Malla th~ Nether•ands, Norway, Portugal, San
Liechtenstein , Lux~mbrlourd, Turkey and the United Kingdom. A State to
it':
beco.,•a--
:.
Spain, Sweden, Switze a~e~ of Cou'ncil of Europe. Eleven Protocols to ECHR hats
of ECH~ m~ b~h~~:ding the rights recognised in convention or Smen6;1111
st
been s1_gne F' e am' pie Protocol I which was signed on March 20, 1952 and---... 11
convention. or ex , ' • h · ht t cefu1 · - .....
into force on May 18, 1954, adds certain new nghts ~uc as ng o pea . ~ ..
one's possessions, and right to education. ~t also includes an undertaking of the SIiia
Parties to hold free elections at reasonable mtery~ls by a secret ball~t, under t:D'..,_
which will ensure the free expression of the opinion of the people 1n the choice oflt
legislature. Protocol II which was signed on May 6, 1963 and came into fon:e •
September 21, 1970, enabled the Court of Human Rights to give advisory opinion••
request of Committee of Minister on legal question with regard to the intecJN 1 Sn ti
ECHR and Protocols. Protocol 111, which was signed on May 6, 1963 and camenom
on September 22, 1970, amended certain articles, namely, Articles 29, 30 and 34 GI
ECHR. Protocol IV was signed on September 16, 1963 and entered into force an lllf 2,
1969. It added certain rights such as no person can be expelled from a Slate ol 1111i:11
he/she is a national, (ii) Right to choose residence and liberty of movement and (I) iaM
not to ~e imprisoned for failure to pay debts. Having been signed on January 20, 1981al
came into force. Protocol V amended the Convention regarding procedure of el b al
members ~f the Commission and the Court. Protocol v:, which came into force
~ 98~, abolished death penalty except in respect of acts committed in time
in...,
of.,.•"
'"'!mment_ t~reat of war. The Protocol does not permit any reservation on derogallll-
th1s provIsIon.

Protoco_l VII to t~e ECHR, which entered into force on November 1, •

!~:d c'!':::'~ ~~rc'.:v~~"_i;~ a conviction by a higher court (Article 2}. PNMIII::
1 1990
or committees. Protocol IX uc~ry • . , enabled the Commission to set up
applications to refer cases to Cme into force o!l October 1, 1994 alloW8 L •
••••-·•t•IIII'
si9ned on March 25, 1992 amen~u~ ~n?er certain conditions. Protocol X [Link] ' :
thirds' therefrom. That is to sa 8 rticle 32, para 1 by deletion ofthe_..-, fl
Mini~ters by simple majorit Y, _now matter shall be decided by the Cow~ 2
provided. Lastly, Protocol XI wJc~n st ea~ of two-thirds' majority aa -
r
to lmp~ove the Implementing ma~as signed on May 11, 1994 made ae41.e
Pfotection and observation of huma hl~e~y so as to enhance Its etttm•• r W
-.:"C
MVeral times by above-mentlone n rig ts. Thus the Convention hal blllfl& ••:....
:r •t;o
Convention, enabling the European d Protocols adding the rights

e,cpu~
relating to lnterpretallon ~fu,~ 01 Human Rights to give
11•hlng the death penalty
recq1r;rt ~•
~
~ Convention and allowing UM tJf
o alien, thereby lmprovln an providing certain procedural
g th8 procedural efficiency of tllit
• IAI (2001) 0. 7(a). - --

( 860)
REGIONAL PROTECTION OF HUMAN RIGHTS 861

commi~ sion. on Huf!lan Rights. The Euro . ·

divided into five I
sect_ons. · pean Conven tion compris es of 66 Articles,

·Rights and · Freedo ms Recog nized nd

1 of the
Conven tion (i.e., ECHR) the State Parties u er ECHR. -Under Article
to secure to
everyon e within their jurisdic tion the rights to ~hf Convention undertake
reedoms defined in Section 1 of the
Convention. Therea fter Section I enlists and da~
8 mes the following rights and freedoms ·
. . .
(1) Right to hfe. (Article 2).
(2) Freedo m from torture or inh · .
(Article 3). uman or degrading treatment or punishment.

(3) Freedo m from slavery or servitude. (Article 4 , para 1).

(4) Freedo m from, forced or compulsory labour. (Article 4, para 2).
(5)' Right to liberty and sec~rity of person (Article 5, para 1) including right of
arreste d p~rson_ to · be_ informed of the reasons of his arrest and of any
ch~rge aga1~st h~m. (Article 5, para 2), to be brought before a judge and to be
entitled to .tnal w1t~in r~asonable· time (Article 5, para 3) and right of victims
of arrest or d~tent,on in contravention of the provisions of this Article to an
enforce able nght to compensation. (Article 5, para 5). .

(6) Rightto a fair and public hearing within a reasonable time by an independent
and imparti al tribuna l establis hed by law (Article 6, ;,ara 1) including
presum ption of innocence of a person charged with a criminal offence until
proved guilty ac,cording to law (Article 6; para 2) and certain specified
minimu m rights. of everyon e charged with a criminal offence (Artrcle 6,
para 3).
(7) Non-re troactiv e application of criminal law under national or international
law, (Article 7). - ·
(8) Right to respec t for private and family life, home and correspondence
(Article 8, para 1 ). . . . . . ·
(9) Right to freedom of thought, conscience and religion an~ludang free~om _to
change religion or belief., and freedom either alone or in ?om!l'[Link] w!th
· others and public . or private, to manifest religion or ~ehef, in worsh1~,
. f nd observance subject only, to the mter9sts of public
f public order health or morals. or for the
teachin g, prac ,ce a t·
safety for the protec ,on ° · . )
protect ion of the rights and fr~ed~ms o!not~;;:d~~,~~e:oid opinions and to
(1 O) Right to freedom of express,_on mc~~~egas without interference by public
receive and impart informat10~ a(Article 1O para 1).
authori ty and regardless of f ront1er mbl and ~o freedom of association ~ith
(11) Right to freedom of peaceful asse d io join trade unions tor the protection
others, includin g th_e right to form a~ .
of his interes ts (Article 11, para 1). I e to marry and to found ~ fa~ ~y.
( 12) Ai ht of men and women of marrlage~b et~gexercise ot this right (Article 1~).
ac~ord ing to the national laws govern ng national authority against
before 8 · (Articl~ 13).
I remedy
Right to have an effect ve set forth In this Convention . .
(13)
violatio ns of rights and freedoms the peacefu l enJoym ent of has
1 18 gal I)person to
(14) Right of every natura or 1
posses sions (Article 1, Protoco .
. I (Article 2 Protocol I). b secret ballot under
(15) Right to educat on I at reasona ble lntervr~~e ~pinion of the people
(16) Right to have free election s the free expression ~ I)
conditi ons which wlll e7s1 ~~~re (Article 3, Protoco ·
8
in the choice of the leg •
 862 INTERNATl~ l.'1MJ
(17 ) Right not to be expe 11 ed from a State of which a person a national. (Arr
Protocol IV)• . lCle 3
. exp . · 1
ulsion from a State (Article 4, Pro
\ (18) Freedom from collec tive
Abolition of death penalty . (_Article .
tocol IV)
•
19 7, Protocol 6). .
< ) . f conviction by a higher Court
(2 0) Right of review o a (Article 2, Protocol Vil)
. .
set forth in this convention shat
i f EC
It is made clear in ~rticle 1 ~e secHR that the enjoyment of the rights and frefktft-_
ured without dis crim ina tion on
ligion political or other opinion, any grounc:1-; ••
11

as, sex, race, ?olour, la_nguage: reri national or SOCiat ~

t 'ro erty, birth or oth er status.
association ~1th_ a national mi~ Article 15 : :-...,
provides ~hat in time of wa; : : me
Contrac_ting Party may a_ctl re
0
~li /~~e r~ency threatening the life of the
asures der oga ting fro m its obl
nation
iga tion s under
a:r.;J.
uired by the exigencies of the situ
convention to the extent ~1nsctonnsis ation, prOVlded=
such measures are no te~ with its other obligations und er
under this provision no derogation international law ...
shall be perm1~s · 'bl f Art' I 2
death resulting from lawful acts of 1 e rom ice , except in Cll• ell
war, or from Articles 3,_ 4 ~parag
15 2) Moreover any State Party availing itself of this raphs 1 !,lnd_ 7) <Arleta
to 'k~:~a th~ Secretary General of nght of derogation 1s recJald
the Council of Europe _fully info
which it has taken and the reason rme d of the ~
s therefor. It shall also info rm the
the Council of Europe when such Secretary-General c,
measures have ceased to ope rat
the Convention are being fully exe e and the provisionatll
cuted (Article 15, para 3). Las t
16 provides that nothing in Article but not the least, Alt i)
s 1O (right to fre edo m of exp
freedom of peaceful assembly and res sio n); 11 (fidll 1,
to freedom of association) and
including on the ground of national 14 (non-disa i,[Link]
or social origin in the enj oym ent
set forth in the Convention) shall of rights and freecb•
be regarded as preventing, the
from imposing restrictions on the Hig h Contracting Pales
political activity of aliens. Th at
prov~si?ns of Article~_ 10, 11_ ~nd is to say, despite 118
restnctIons on the political actIvIty 14_, State Parties to the Co nve ntio n can ~
of aliens.
· -
It may be noted that ECHR was
drafted long. b·ef~re the lntern~
Hu ~an ~ights. It contains only tional Co ve nid •
civil and political rights. Eve n
pol 1t1cal nghts there are certain righ _in respect of ch i•
ts which are contained in the Inte
[Link]! _and 2oli!ical Rights, such rnational CcNallll
as,, the right not to be imp riso ned
of mab1hty to fulfil a contractual obl me rely on 118 gllltllll
igation. (Article 11 ), right of eve
ev~[Link] as. a person before ryo ne to be 19t4t:lel•
the law (Article 16), right of eve

c!~~7: 2
nat ~onallty (~rt,cle. ~4_), and pro
1

words, the tnterna~~en~lgC~v=~~~to~

hibition of pro pag and a of wa
~)c~~~ ~~ rellgi_o~s hatred that_ con
ry chi ld to . . . . 'l
r and an adwoGilliJ~
stitutes to dis crim ina tion , hostfut
y.
el
enumeration of civil and political' righ
ts ~ ~~
1
~:d:i~~~al
~pi~u_ous by th_e_ir abs_ence _fro
m the EC~

Imp lem ent atio n

The implementation ofofthethe
parts :
Ai ht
Euro 9 s an d F~ eed om s
pean Co nve ntio n can be div
Rights ts mo re exh a

Recognized \ft.
ided lnto
:II
,,,, (i) The old System .
(ii) The New or Present System
(I) The Old Sy1tem - The ol
.
P~otocol XI c,f the Europou;, Corive
d sy stem con tinu ed upt o 31s
~1ghta. The provlulona rotating to
C ntlon al~ollshed the Eu rop ean t
fo~~ l~~~~:Xt°u't°m which lusto/~~1~S:;~~~ \h~ European Conven Con
ion of tho prov1Hlo118 of the Cc O er,
(1) A Europa an Cornrnlijs l 1998, there we
. onvention . They were :
Commlsalon'; on ot t lurn un Rights hereinaftt
f'.
 890 INTERNATIONAL LAW

extradition treaty entered into between State Parties. !he

State Part~~s undertake to
include the crime of torture as an extraditable offence in
every extrad1t1on treaty to be
concluded between them. (Article 13)
When a State Party does not grant the extradition, the case
ought to be submitted to
its competent authorities as of the crime ha~ been co~~ itted
w~thin_ its jurisdiction f~r the
purposes of investigation and when appropriate, for crimin
al action in accordance with its
national law. Any decision adopted by these authorities
·shall be communicated to the
State that has requested the extradition. (Article 14)
X. AFRICAN CHARTER . ON HUMAN AND PEO PLE'
S RIGH TS, 1981
African Charter on Human and People's Rights, also
popu larly known as Banjul
Charter. was adopted on June 27, 1981 and entered into
force on October, 1986. So far
49 States. of the 50 members of the Organisation of Africa
n Unity (OAU) and ratified or
acceded to it. The only State which has not so far ratifie
d or acce ded to the African
Charter is Sahrawi Arab Democratic. A special feature of
the African Charter is that along ,
with rights, it also lays down the duties of the ind,vidual
s. As noted earlier, even the
American Convention contained an Article entitled "Rela
tions hip Betw een Duties and
Rights•. But the difference is whereas the American Conv
ention did so very briefly or even
casually, the African Charter enumerates the duties in detai
l laying great er emphasis on
the duties of the individuals. This is evident from the pream
ble of the African Charter.
Prea mble .-Thr ough the Preamble the State Parties being
the mem ber of the OAU
recognize, on the one hand, that fundamental human rights
stem from the attributes of
human beings, which justifies their international protection
and on the other hand that the
reality and respect of peop le's right should nece ssari
ly guar antee huma n rights.
Emphasizing the duties , the preamble states "that the enjoy
ment of rights and freedoms
also implies the performance of duties on the part of
every one." The preamble also
emphasizes "the right to deve lopm ent and that civil
and politi cal rights cannot be
dissociated from economic, social and cultural rights
in their conc eptio n as well as
unive rsalit y and that the satis factio n of econ omic ,
socia l and cultu ral rights is a
guarantee for the enjoyment of civil and political rights."
.
Hum an and Peop le's Righ ts.-C hapt er 1 of Part
contains the following rights : I of the Afric an Charter

(1) Equality before law. 130

(2)Right to respect for life and integrity of person.131
(3) Right to the respect of the digni ty Inher ent in
a huma n being and the
recognition of his legal status. 132 ·
(4) Right to liberty and security of person.133
(5) Aig~t to have his cause heard Including (a) right to appe
al to competent
natio nal organ s again st viola tions of funda ment al
rights ; (b) right to
presumptl~n of Innocence until proved guilty. (c) right
to defen ce; and the
r1gh~ to fair trial within a reasonable time by an Impartial
(Article 7) court or tribunal.

(6) Free dom of coneolenoe, tho profe ssion and free pract
(Article 8) ice of religion.

(7) Right to Inform. (Article 9)

130.
---
Article 3.
131. Article 4.
132. Article 5.
133. Article 6.
 891
ROTECTION OF HUMAN RIGHTS
REGIONAL P
(S) Right to free association. (Article 10) .
(g} Right to assemble free by with others. (Article 11)
( O) Right to freedom of movement and residence. (Article 12) .
1
( } Right to participate freely in the government of the country. (Article 13)
11
(12) Right to property. (Article 14)
(13} Right to work under-equitable and satisfactory conditions. (Article 15}
(14) Right to enjoy state of physical and mental health. (Article 16)
(15) Right to education and take part freely in the cultural life of community.
(Article 17)
(16d Family to be the natural unit and basis of society and shall be protected by
the State. (Article 18)
(17) Article to equality and prohibition of domination of a people by another.
(Article 19)
(18) Right to existence including the unquestionable and inalienable right to self
determination. (Article 20)
(19) Right to freely dispose of wealth and natural resources. (Article 21)
(20) Right to economic, social and cultural development. (Article 22, para 1)
(21) Right to development. (Article 22, para 2)
(22) . · Right to national and international peace and security. (Article 23)
(23) Right to a general satisfactory environment favourable to their development.
(Article 24)
The African Charter provides that the Member States of the OAU Parties to the
present Charter shall recognize the rights, duties and freedoms enshrined in the Charter
and shall undertake to adopt legislative or other measures to give effect to them. (Article
1). The Charter also contains guarantee of non-discrimination. It provides that every
individual shall be entitled to the enjoyment of the rights and freedoms recognized and
guaranteed in the present charter without distinction of any kind, such as, race, ethnic
group, colour, sex, language, religion, political or any other opinion national and social
origin, fortune, birth or other status (Article 2'). Further, the State Parties to the present
Charter shall have the ·duty to guarantee the Independence of the Courts and shall allow
the establishment and improvement of appropriate national institutions entrusted with the
promotion and protection of the rights and freedoms guaranteed by the present Charter
(Article 26).
Duties.-Cha pter II of Part I of the African Charter lays down following dutie~ of
each individual :
(1) Duties towards family and society, the State and other legally recognized
communities and international community. (Article 27, para 1)
(2) Each individual to exercise the rights and freedoms with due regard to _the
rights of others, collective security, morality and common interest (Article
27, para 2),
. · 1
(3) Duty to respect and consider his fell ow beings without d1scn!1'·nation and to
. •mutual
maintain relations aimed at promoting, safeguarding and reinforcing
respect and tolerance. (Article 28) k tor
f ·1 and to wor
(4) Duty to preserve the harmonious development of t~e am, ~sat all times. to
the cohesion and respect of the famlly; to respect his paren .
maintain them In case of need. (Article 29, para 1) . 1and intellectual
(S) Duty to serve his national community by placing his physica
abilities at Its service. (Article 29, para 2)
 INTERNATIONAL LAW
892
t he
rity of State whose national or residen
(6) Duty not to compromise the secu . .
. .
is. (Article 29, para 3) dari ty part icula rly
social and national soli
(7) 0 t to preserve and strengthen
29, para 4)
w~:'n the latter is threatened. (Article t~e
en th e national .indepen~ence and
(B) Duty to preserve and strength defe nce in
and to con tribu te to its
territorial integrity of his country
5)
accordance with the law. (Article 29, para taxes
abilities ~nd co~ pete nce , and to pay
(9) Duty to work to the best of his iety. (Article 29, para 6)
imposed by law in the interest of the Soc es in his
(10) Duty to preserve and stre
ngthen positive African Cultural valu
society, in_ the spir it of tole rance,
relations with other members of the tribu te to the prom otio n of
eral, to con
dialogue and consultation _and in ~en
29, para 7)
the moral well being of society. (Article to
his a_ bilities, _at all ti~e s and at all levels,
(11) Duty to contribute to the best of an Unity. (Article 29, para 8)
the promotion and achievement of Afric 30 of the
and Peo ple 's Rig hts .-A rtic le
African Com mis sion on Hum an OAU an Afric an Com mis sion on
Cha rter prov ides for the establish ment within the
African s rights and
an and Peo ple's Righ ts as the mec hanism to promote human and people'
Hum bers to be
ure thei r prot ecti on in Afric a. The Commission consists of eleven mem
ens for their high
lities of the highest reputation known
chosen from amongst African persona an and people's
petence in matters concerning hum
morality, integrity, impartiality and com l experience. They serve in their
rights, preference 134 being given to persons having lega
.
personal capacity. ion
app oint ment of a Secretary to the Commiss
(12) There is also provision for the atio n of Afric an
eneral of the Organis
to be appointed by the Secretary-G for the staf f and serv ices
Uni ty.
135
His main function is to' prov ide
harg e of the duti es of the Commission.
necessary for the effective disc
wing :
The functions of the Commission are follo
collect
s rights and in par ticu lar : (a) to
{1) To promote human and people' e sem inars,
rese arch es, org aniz
documents, undertake stud ies and l
nate information, enc our age nationa
symposia and conferences dissemi in
human and people's rights and also
and local institutions concerned with ernm ents of
e recommendation to gov
case of need, give its views or mak n,
tion; (b) to form ulat e and lay dow
St_at~ Parties to the present conven
legal problems concerning human and
pnnc,ples_ and rules aimed at solving ents
doms upon which African governm
peoples rights and fundamental free
to coo per ate with oth er African and
may base their legislations and (c) of
with the pro mot ion, and protection
international institutions concerned
human and people's rights.
an and people's rights.
(2} To ensure the protection of hum
rter at the request of a State Party,
(3) ! 0
!nt~rpret all the provisions of the Cha
Organisation recognised by the OAU
.
,nst,tut,ons ot the OAU or an At rlcan
Assembly of
4
( ) To !'erform any other taskernm which may be entrusted to it by the
Heads of States and Gov ents . 136

th e Afri can Ch arte r.-T he Afri can Cha rter provides

ma i~~ P!~ ~:n tatl ~n of
orti ng pro ced ure ; (Ii) inte r-St ate
Y ma,n pro ced ure s- (!) the Rep

134. Article 31.

135. Article 41.
136. Article 45.
 REGIONAL PROTECTION OF HUMAN RIGHTS 893

communications and (iii) commun1cations other than those of State Parties concluding
individuals-for the implementation of the provisions, of the Convention and the main
machinery for implementation is the Corl)mission.
(1) Reporting procedure.-State Parties to the African Charter have undertaken to
submit every two years, beginning from the date of the Charter enters into force, a report
on the legislative or other measures they have taken to give effect to the rights and
freedoms recognized and guaranteed under the Charter.137
(ii) Inter-State Communications.-The African Charter provides that if a State Party
has good reasons to believe that another State Party has violated the provision of the
Charter, it may bring the same to the notice of the State in writing. A communication to the
same effect shall also be sent to the Secretary-General of the OAV and to the Chairman
of the Commission. The State Party concerned against whom the said communication is
sent is required to send a written explanation. 13 8 If the matter is not settled to the
satisfaction of the two State parties concerned bilaterally or through other peaceful
procedure within three months from which the complaint was originally made, either State
will be entitled to refer the matter to the Commission through the Chairman notity;ng the
other State concerned. 139 Further in case the State Party considers that another State
Party is guilty of the violation of the provisions of the African Charter, it need not follow
the above procedure and may refer the matter directly to the Commission through the
Chairman to the Secretary-General of the OAU and the States concerned. 140 The
Commission may ask the States concerned to submit all relevant inforrT1ation relating to
the IT'atter. The States concerned are permitted representation when their matter is being
considered and may make written or oral representation. 141 It may be noted here that
before dealing with the matter the Commission satisfies itself that before the complaint
has been made all local [Link] been exhausted. However, the Commission may
exempt from this requirement if it finds that the procedure of exhausting the said remedies
would be unduly prolonged. 142 After making all efforts to reach an amicable settlement
based on respect of Human and People's rights, the Commission, within a reasonable
period, is required to draw a report containing the facts and its findings and transmit the
report to the States concerned and communicate the same to the Assembly of Heads and
Governments 143 will such recommendation which it deems useful or fit. 144
. I! one or more communications reveal the existence of a seri0us or massive
vIolat1ons of human and people's rights, the matter is taken seriously and it shall bring the
same to the notice ?f !he Assembly o! Heads of States and Governments which may in its
turn as_k the ~o~m1~s1~n to make an in-depth study of the said cases and submit a factual
report including its findings and recommendations.145
. S
s~:~Zrtf;st~e~~:~~scs~o~e~~~~n m:~~ t~i~~~~t
(ii~ Other Communl~ations (including individuals).-African Charter provides that the

Commission who shall decide by a sim le

c~hmmunications other than those of
. e . same to the members of the
Communication ought to be considered by the ~ m~Jo_ n ty ~J
members, as to which
omm,ss,on.1 Though this provision does

137. Soe Article 62.

138. Soo Article 67.
139. Article 48.
140. Article 49.
141 . Article 51.
142. Artlc;le 50.
143. Article 52.
l44. Article 53.
145, Article 58.
146• Article 55.
 894 INTERr:,.JATIONAL LAW
not expressly mention individuals, obviously
individuals cof!lm~ni~ations are in~luded in
the term 'communication other than those of
the States Parties. It 1s further provided that
communications relating to human and people's
rights referred to in Article 55 received by
the Commission, shall be considered if they :
1 . indicate their authors even if the latter requ
est anonymity;
2. are compatible with the Organization of
African Unity, or with the present
Charter;
3. are not written in disparaging or insulting
language directed against the
State concerned and its institutions or to the
OAU;
4. are not gased exclusively on news dissemin
ated through the mass media;
5. are sent after exhausting local remedies
, if any, unless it is obvious that this
procedure is unduly prolonged;
6. are submitted within a reasonable perio
d from the time local remedies are
exhausted or from the date the Commission is
seized with the matter; and
7. lastly, they do not deal with cases which
have been settled by these States
involved in accordance with the principles of
the Charter of the OAV or the
provisions of the present Charter.147 .
The Commission submits report of all its activ
ities to the Assembly, of the Heads of
States and Governments. All measures taken
by the Commission remain confidential until
such a time as the Assembly of Heads of Stat
es and Government otherwise decide. After
- considering the report by the Assembly
of Heads of States and Governments, the
Chairman gets the report published. 148
App rais al.- A special feature of the Afric
an Charter which distinguishes this
regional convention from other regional conv
ention in the enumeration of duties in detail.
Liberty is a social contract. If a person wants
to enjoy his rights, he will have to respect
the right of others. Every right has a corr
esponding duty : Enumeration of duties is
therefore a welcome feature. Unfortuntely the
African Charter does not take the matter to
its logical conclusion. After enumeration of
the duties it stops there and does not provide
for the enforcement of duties in case of brea
ch. While providing for the implementation of
the provisions of the Convention no provision
whatsoever is made for the enforcement of
duties. Even the functions of the Commiss
ion are conspicuous of any mention of the
enforcement of duties. Thus the provisions
relating to duties are simply figurative or
decorative lacking any substance the only prov
ision (Article 1 ) obligating State Parties to
recognize duties is to adopt legislative or othe
r measure to give effect to them. But this is
far from being effective.
Yet another deficiency or the point which disti
nguishes it from the European and
American Conventions is that the African Cha
rter has not established any court for the
enforcement of human and people's righ
ts thereby relying heavily on mediation,
conciliation and arbitration which are cons
idered more in keeping with the traditional
African dispute reso lution system.
Th~ Commission as the main mec hani sm for
the implementation of the provisio~~ of
the African Cha~te~ only pe~f orms esse ntial
ly on fact finding and information providing
role. The Comm1ss1on can simp ly Investiga te
and submit to the Assembly of Heads and
Governments report on human rights violations
. It ca n neither take a binding decision nor
can it enfo rce it. It is only the OAU Asse mbly
action. whic h can decide and take necessary

Both inter-State and [Link]'s commu nica

tions are accepted upon ratification of
the African Charter. Last but not the leas t, Af
rlcan Charter on Human and People's Rights

147. Article 56.

148. Article 59.
REGIONAL PROTECTION OF HUMAN RIGHTS 895

he International or regional Convention on Human Rights which specifically

is t ates and protects people's rights.
enumer
OTHER REGIONAL ARRANGEMENTS FOR THE PROTECTION OF
XI. HUMAN RIGHTS
following are some of the other regional Arrangements for the protection of human
rights:
(i) Helslnkie Act (Final Act) of the Conference on Security and Cooperation in
Europe, 1975.
(ii) The Arab Commission on Human Rights.