UNIT-3 Public International Law

UNIT-3

1. Describe the Composition, Jurisdiction, Functioning of National Human Rights Commission.

The National Human Rights Commission (NHRC) of India is a statutory body established under the Protection of Human Rights Act, 1993 (amended in 2006 and 2019), with the mandate to protect and promote human rights. It plays a pivotal role in addressing human rights violations in India, acting as a watchdog to ensure accountability.

Composition of the NHRC (Section 3, Protection of Human Rights Act, 1993):

  1. Chairperson and Members:
  • The NHRC consists of a Chairperson and eight members:
    • Chairperson: Must be a retired Chief Justice of India or a retired judge of the Supreme Court (amended in 2019 to include Supreme Court judges).
    • Members:
    • Two members must be retired judges—one from the Supreme Court and one from a High Court.
    • Two members with knowledge or practical experience in human rights, appointed from fields such as law, social work, or public service.
    • Three ex-officio members: Chairpersons of the National Commission for Minorities, National Commission for Scheduled Castes, and National Commission for Scheduled Tribes.
  • Amendment (2019): The 2019 amendment added the Chairperson of the National Commission for Women as an ex-officio member, increasing the total to nine members.
  1. Appointment:
  • The Chairperson and members are appointed by the President of India on the recommendation of a high-level committee comprising:
    • The Prime Minister (Chairperson of the committee).
    • Speaker of the Lok Sabha.
    • Leader of the Opposition in the Lok Sabha.
    • Leader of the Opposition in the Rajya Sabha.
    • Union Home Minister.
    • Deputy Chairman of the Rajya Sabha.
  • This ensures a balanced and bipartisan selection process.
  1. Tenure and Removal:
  • The Chairperson and members hold office for a term of three years (reduced from five years by the 2019 amendment) or until they attain the age of 70 years, whichever is earlier.
  • They can be removed by the President for proved misbehavior or incapacity, based on an inquiry by the Supreme Court (Section 5).

Jurisdiction of the NHRC (Section 12):

  1. Scope of Inquiry:
  • The NHRC has jurisdiction to inquire into violations of human rights or negligence by public servants in preventing such violations. Human rights are defined as rights relating to life, liberty, equality, and dignity, as guaranteed by the Indian Constitution or international covenants (Section 2(d)).
  • It can investigate violations involving:
    • Civil and political rights (e.g., right to life, freedom from torture).
    • Economic, social, and cultural rights (e.g., right to education, health).
  • The NHRC can also inquire into matters involving the armed forces, but only to make recommendations, not binding decisions (Section 19).
  1. Limitations on Jurisdiction:
  • Time Limit: The NHRC cannot inquire into complaints older than one year (Section 36(2)).
  • Pending Cases: It cannot intervene in matters pending before a court or another commission (Section 36(1)).
  • Armed Forces: Its role is limited to recommendations in cases involving the armed forces (Section 19).

Functioning of the NHRC (Sections 12–18):

  1. Powers and Functions:
  • Inquiry into Complaints: The NHRC can investigate human rights violations either on a complaint (by victims or others) or suo motu (on its own initiative) based on media reports or other information.
  • Inspection: It can visit jails, detention centers, or other state-run institutions to monitor conditions and ensure compliance with human rights standards.
  • Recommendations: The NHRC can recommend compensation to victims, initiation of legal proceedings against perpetrators, or policy changes to the government.
  • Promotion of Human Rights: It promotes awareness through education, research, and publications, and reviews laws to ensure they align with human rights standards.
  • Review of International Treaties: The NHRC examines India’s compliance with international human rights treaties (e.g., ICCPR, ICESCR) and suggests measures for implementation.
  • Intervention in Courts: It can intervene in court proceedings involving human rights violations, with court approval.
  1. Powers of a Civil Court (Section 13):
  • While inquiring, the NHRC has the powers of a civil court under the Code of Civil Procedure, 1908, including:
    • Summoning and enforcing attendance of witnesses.
    • Requiring production of documents.
    • Examining witnesses under oath.
    • Issuing commissions for examination of witnesses or documents.
  1. Procedure:
  • Complaints can be filed by victims, their representatives, or NGOs. The NHRC may also take suo motu cognizance.
  • It conducts inquiries, often through investigation teams, and may hold public hearings.
  • After investigation, it issues recommendations to the concerned authorities, which are not legally binding but carry moral and political weight.
  1. Examples of Functioning:
  • Custodial Deaths: The NHRC has intervened in numerous cases of custodial deaths, recommending compensation and prosecution of police officials (e.g., the 2020 custodial death case of Jayaraj and Bennix in Tamil Nadu, where the NHRC ordered an inquiry).
  • Prison Conditions: It has conducted inspections of overcrowded jails, recommending improvements in sanitation, healthcare, and rehabilitation (e.g., its 2018 report on Tihar Jail).
  • Suo Motu Actions: The NHRC took suo motu cognizance of the 2020 migrant workers’ crisis during the COVID-19 lockdown, issuing guidelines to protect their rights.

Critical Analysis:

  • Strengths: The NHRC provides an accessible forum for addressing human rights violations, promotes awareness, and acts as a bridge between the state and civil society.
  • Limitations:
  • Non-Binding Recommendations: The NHRC’s recommendations are not enforceable, limiting its effectiveness if the government or authorities fail to comply.
  • Jurisdictional Constraints: The one-year time limit and restrictions on armed forces cases reduce its scope.
  • Resource Constraints: The NHRC often faces staffing and funding shortages, impacting its ability to handle a large caseload.
  • Political Influence: Its dependence on government appointments raises concerns about independence, especially when dealing with state-sponsored violations.

Conclusion

The NHRC is a vital institution for protecting human rights in India, with a balanced composition, wide jurisdiction, and quasi-judicial powers. However, its effectiveness is hampered by its advisory nature, jurisdictional limits, and resource constraints. Strengthening its autonomy and enforcement powers could enhance its role in safeguarding human rights.

2. Write a Critical Note on Covenant on Economic, Social and Cultural Rights.

The International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted by the UN General Assembly on December 16, 1966, and entered into force on January 3, 1976, is a key international treaty aimed at protecting economic, social, and cultural rights. Alongside the International Covenant on Civil and Political Rights (ICCPR), it forms part of the International Bill of Human Rights, complementing the Universal Declaration of Human Rights (UDHR, 1948). Below is a critical analysis of the ICESCR.

Overview of the ICESCR

  1. Objective: The ICESCR seeks to ensure the protection of economic, social, and cultural rights, recognizing their importance for human dignity and development.
  2. State Parties: As of May 2025, 171 states are parties to the ICESCR, including India (ratified in 1979).
  3. Key Provisions:
  • Article 2(1): States commit to take steps, individually and through international cooperation, to progressively realize the rights in the Covenant, to the maximum of their available resources.
  • Rights Recognized:
    • Right to work (Article 6) and just conditions of work (Article 7).
    • Right to form trade unions (Article 8).
    • Right to social security (Article 9).
    • Right to an adequate standard of living, including food, clothing, and housing (Article 11).
    • Right to health (Article 12).
    • Right to education (Article 13).
    • Right to cultural participation (Article 15).
  • Non-Discrimination (Article 2(2)): Rights must be exercised without discrimination based on race, sex, religion, or other status.
  • Monitoring: The Committee on Economic, Social and Cultural Rights (CESCR), established in 1985, monitors implementation through state reports and issues General Comments to clarify obligations.

Critical Analysis

  1. Strengths:
  • Comprehensive Framework: The ICESCR provides a broad framework for protecting rights essential for human dignity, such as the right to health, education, and an adequate standard of living, which are often neglected in favor of civil and political rights.
  • Progressive Realization: The concept of “progressive realization” (Article 2(1)) acknowledges that resource constraints may prevent immediate fulfillment, allowing states flexibility while setting a clear goal of realization over time.
  • International Cooperation: The ICESCR emphasizes global cooperation (Article 2(1)), encouraging wealthier states to assist developing nations, as seen in initiatives like the Sustainable Development Goals (SDGs).
  • Influence on Domestic Law: Many states have incorporated ICESCR rights into their legal systems. For example, India’s Directive Principles of State Policy (e.g., Article 39, right to livelihood) reflect ICESCR obligations, though they are not justiciable.
  1. Weaknesses:
  • Progressive Realization and Vagueness: The principle of progressive realization, while practical, lacks clear timelines and benchmarks, allowing states to delay implementation. For instance, India has made slow progress on the right to education despite ratifying the ICESCR in 1979 (the Right to Education Act was enacted only in 2009).
  • Non-Justiciability: Unlike the ICCPR, which provides for immediate obligations, many ICESCR rights are not directly enforceable in courts, leading to weaker implementation. For example, the right to housing (Article 11) is often violated without legal recourse, as seen in forced evictions in urban India.
  • Resource Constraints: Developing states often cite lack of resources as a barrier, but this can be an excuse for inaction. The CESCR has noted that even resource-scarce states must ensure minimum core obligations (e.g., basic healthcare, education), yet violations persist (e.g., inadequate public health systems in many African states).
  • Limited Enforcement Mechanisms: The ICESCR lacks a strong enforcement mechanism. The Optional Protocol to the ICESCR (adopted in 2008, entered into force in 2013) allows individuals to file complaints, but only 24 states have ratified it as of 2025, limiting its impact.
  • Western Bias Critique: Some scholars argue that the ICESCR reflects Western priorities (e.g., individual-focused rights), neglecting cultural contexts in non-Western societies. For instance, the right to cultural participation (Article 15) may conflict with traditional practices in some communities.
  1. Implementation Challenges:
  • State Reporting: States are required to submit periodic reports to the CESCR, but many fail to comply or provide superficial data. For example, India’s 2021 report was criticized for lacking concrete data on homelessness.
  • Conflict with Economic Policies: Neoliberal policies, such as privatization, often undermine ICESCR rights (e.g., privatization of healthcare in India has reduced access for the poor, violating Article 12).
  • Global Inequality: The ICESCR’s call for international cooperation is often ignored by wealthy states, exacerbating global inequality. For instance, unequal access to COVID-19 vaccines highlighted disparities in the right to health (Article 12).
  1. Case Law and General Comments:
  • General Comment No. 3 (1990): The CESCR clarified that states must take deliberate, concrete steps toward realizing ICESCR rights, even with limited resources, and ensure non-retrogression (not reducing existing protections).
  • South Africa’s Constitutional Court (Grootboom Case, 2000): The court ruled that the government must take reasonable measures to realize the right to housing (Article 11), setting a precedent for justiciability of ICESCR rights in domestic law.

Conclusion

The ICESCR is a landmark treaty that underscores the importance of economic, social, and cultural rights, offering a framework for states to progressively realize these rights. However, its effectiveness is limited by vague obligations, non-justiciability, weak enforcement, and resource constraints. While it has influenced domestic policies and global initiatives like the SDGs, its implementation remains uneven, particularly in developing states. Strengthening enforcement mechanisms, ensuring accountability, and addressing global inequalities are crucial to fulfilling the ICESCR’s vision of universal human dignity.

3. Explain the Concept of Human Rights. Explain the Provisions of U.N. Charters Relating to Human Rights.

Concept of Human Rights

Human rights are universal, inalienable, and indivisible rights inherent to all human beings, regardless of nationality, race, gender, religion, or any other status. They are grounded in the principle of human dignity and aim to ensure that individuals can live with freedom, equality, and justice. The concept has evolved historically and philosophically, drawing from various sources:

  1. Philosophical Foundations:
  • Natural Law: Thinkers like John Locke and Thomas Hobbes argued that humans possess inherent rights (e.g., life, liberty, property) by virtue of their nature, derived from natural law.
  • Social Contract Theory: Rousseau’s concept of the social contract emphasized that governments exist to protect these inherent rights, and their legitimacy depends on upholding them.
  • Universal Morality: The idea of universal moral principles, as advocated by Immanuel Kant, underpins modern human rights, emphasizing the equal worth of all individuals.
  1. Historical Development:
  • Magna Carta (1215): Established early principles of limited government and individual rights in England.
  • American and French Revolutions (18th Century): The US Declaration of Independence (1776) and the French Declaration of the Rights of Man and of the Citizen (1789) formalized rights like liberty, equality, and the pursuit of happiness.
  • Post-WWII Era: The atrocities of World War II, including the Holocaust, led to the global recognition of human rights, culminating in the Universal Declaration of Human Rights (UDHR, 1948).
  1. Characteristics of Human Rights:
  • Universality: Human rights apply to all humans, everywhere, without discrimination (UDHR, Article 2).
  • Inalienability: They cannot be taken away, except in specific circumstances (e.g., lawful imprisonment).
  • Indivisibility: Civil, political, economic, social, and cultural rights are interconnected and equally important.
  • Interdependence: The realization of one right often depends on others (e.g., the right to education supports the right to work).
  1. Categories of Human Rights:
  • First Generation (Civil and Political Rights): Rights to life, liberty, freedom of expression, and fair trial (e.g., ICCPR, 1966).
  • Second Generation (Economic, Social, and Cultural Rights): Rights to education, health, and an adequate standard of living (e.g., ICESCR, 1966).
  • Third Generation (Collective Rights): Rights to self-determination, development, and a clean environment, often associated with groups or peoples.

Provisions of the UN Charter Relating to Human Rights

The UN Charter (1945), the foundational treaty of the United Nations, was the first international instrument to explicitly recognize human rights as a global concern. While the Charter does not enumerate specific rights (unlike the UDHR), it establishes human rights as a core objective of the UN. The key provisions are:

  1. Preamble:
  • The Preamble reaffirms “faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.”
  • It sets the tone for the UN’s commitment to human rights as a means to achieve global peace and justice.
  1. Article 1 (Purposes and Principles):
  • Article 1(3) states that one of the UN’s purposes is to promote and encourage “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”
  • This establishes human rights as a central goal of the UN, alongside maintaining peace and fostering international cooperation.
  1. Article 13 (General Assembly Functions):
  • Article 13(1)(b) empowers the General Assembly to initiate studies and make recommendations for “promoting international cooperation in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all.”
  • This led to the adoption of the UDHR in 1948 and subsequent human rights treaties.
  1. Article 55 (International Cooperation):
  • Article 55(c) commits the UN to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”
  • This provision emphasizes the UN’s role in creating conditions for economic and social progress, which are linked to human rights realization.
  1. Article 56 (Pledge by Member States):
  • Article 56 obliges all member states to “pledge themselves to take joint and separate action in cooperation with the Organization” to achieve the purposes set out in Article 55, including the promotion of human rights.
  • This creates a legal obligation for states to work toward human rights goals, though enforcement is limited.
  1. Article 62 (Economic and Social Council):
  • Article 62(2) empowers the Economic and Social Council (ECOSOC) to make recommendations for promoting human rights and to prepare draft conventions for submission to the General Assembly.
  • ECOSOC played a key role in drafting the UDHR and the two Covenants (ICCPR and ICESCR).
  1. Article 68 (Human Rights Commission):
  • Article 68 mandates ECOSOC to set up commissions for the promotion of human rights, leading to the establishment of the UN Commission on Human Rights (1946), which drafted the UDHR. This commission was later replaced by the UN Human Rights Council (2006).

Critical Analysis of UN Charter Provisions:

  • Strengths: The UN Charter was groundbreaking in making human rights a matter of international concern, moving beyond the traditional view that they were solely a domestic issue. It laid the foundation for the UDHR and subsequent treaties.
  • Limitations: The Charter’s provisions are general and lack specificity, leaving implementation to state discretion. It also lacks enforcement mechanisms, as the Security Council’s role in human rights is limited by veto power (e.g., inaction on Syria due to Russian vetoes).

Conclusion

Human rights are universal, inalienable rights inherent to all individuals, rooted in the principles of dignity, equality, and justice. The UN Charter, through its Preamble, Articles 1, 13, 55, 56, 62, and 68, establishes human rights as a core objective of the UN, promoting their universal respect and observance. While the Charter’s provisions were a historic step, their lack of specificity and enforcement mechanisms highlight the need for subsequent treaties like the UDHR, ICCPR, and ICESCR to operationalize human rights protections.

4. Write a Detailed Note on Covenant on Civil and Political Rights, 1966.

The International Covenant on Civil and Political Rights (ICCPR), adopted by the UN General Assembly on December 16, 1966, and entered into force on March 23, 1976, is a cornerstone of the international human rights framework. Alongside the ICESCR, it forms part of the International Bill of Human Rights, giving legal force to the civil and political rights outlined in the UDHR. Below is a detailed note on the ICCPR.

Background and Overview

  1. Adoption and Ratification:
  • The ICCPR was adopted to protect civil and political rights, complementing the ICESCR’s focus on economic, social, and cultural rights.
  • As of May 2025, 173 states are parties to the ICCPR, including India (ratified in 1979 with reservations to certain articles).
  1. Objective:
  • The ICCPR aims to ensure that individuals enjoy civil and political freedoms, such as the right to life, liberty, and political participation, free from state interference or discrimination.

Structure of the ICCPR

The ICCPR consists of 53 articles, divided into six parts:

  • Part I (Article 1): Right to self-determination.
  • Part II (Articles 2–5): General obligations of states.
  • Part III (Articles 6–27): Substantive rights.
  • Part IV (Articles 28–45): Human Rights Committee and monitoring.
  • Part V (Articles 46–47): Interpretative provisions.
  • Part VI (Articles 48–53): Ratification and amendments.

Key Provisions

  1. General Obligations (Part II):
  • Article 2(1): States must respect and ensure the rights in the Covenant to all individuals within their territory and jurisdiction, without discrimination.
  • Article 2(3): States must provide effective remedies for rights violations, including access to competent judicial, administrative, or legislative authorities.
  • Article 4: States may derogate from certain rights during public emergencies (e.g., war, natural disasters), but only to the extent strictly required, and some rights (e.g., right to life, freedom from torture) are non-derogable.
  • Article 5: Prohibits misuse of the Covenant to destroy rights or limit them beyond what the Covenant permits.
  1. Substantive Rights (Part III):
  • Article 6: Right to life, prohibiting arbitrary deprivation of life. The death penalty is restricted and must not be imposed on minors or pregnant women.
  • Article 7: Freedom from torture, cruel, inhuman, or degrading treatment or punishment.
  • Article 8: Prohibition of slavery, servitude, and forced labor.
  • Article 9: Right to liberty and security of person, including freedom from arbitrary arrest and the right to a prompt trial.
  • Article 10: Humane treatment of persons in detention, including the separation of accused persons from convicts and juveniles from adults.
  • Article 14: Right to a fair trial, including the presumption of innocence, legal representation, and the right to appeal.
  • Article 17: Right to privacy, protecting against arbitrary interference with family, home, or correspondence.
  • Article 18: Freedom of thought, conscience, and religion, including the right to manifest one’s beliefs.
  • Article 19: Freedom of expression, including the right to seek, receive, and impart information.
  • Article 21: Right to peaceful assembly.
  • Article 22: Freedom of association, including the right to form trade unions.
  • Article 25: Right to political participation, including the right to vote and stand for election in free and fair elections.
  • Article 26: Equality before the law and equal protection of the law without discrimination.
  • Article 27: Rights of minorities to enjoy their culture, practice their religion, and use their language.
  1. Self-Determination (Article 1):
  • All peoples have the right to self-determination, including the right to freely determine their political status and pursue economic, social, and cultural development.
  • This applies to colonial peoples and has been used to support decolonization (e.g., India’s independence in 1947).

Monitoring Mechanism (Part IV):

  1. Human Rights Committee (HRC):
  • Composition: The HRC, established under Article 28, consists of 18 independent experts elected by state parties.
  • Functions:
    • State Reports (Article 40): States must submit periodic reports (every four years) on measures taken to implement the ICCPR. The HRC reviews these reports and issues concluding observations.
    • Individual Complaints (Optional Protocol): The First Optional Protocol to the ICCPR (1966) allows individuals to file complaints against states that have ratified the Protocol (112 states as of 2025). India has not ratified this Protocol.
    • Inter-State Complaints (Article 41): States can file complaints against other states for violations, though this mechanism is rarely used.
    • General Comments: The HRC issues General Comments to clarify the Covenant’s provisions (e.g., General Comment No. 6 on the right to life, emphasizing its broad scope, including protection from arbitrary killings).
  1. Second Optional Protocol (1989):
  • Aims at the abolition of the death penalty. As of 2025, 90 states have ratified it, but major states like the US, China, and India have not.

Implementation and Impact

  1. Global Impact:
  • The ICCPR has influenced domestic laws and constitutions. For example, South Africa’s Constitution (1996) incorporates ICCPR rights like equality and fair trial.
  • It has been used to address violations through HRC decisions (e.g., Toonen v. Australia, 1994, where the HRC ruled that Tasmania’s anti-sodomy laws violated the right to privacy, Article 17).
  1. Challenges in Implementation:
  • Reservations: States often make reservations to limit obligations. For example, India reserved the right to apply its own laws on Article 9 (liberty) and Article 19 (expression), citing national security.
  • Non-Compliance: Some states fail to implement HRC recommendations, as they are not legally binding (e.g., the US has ignored HRC rulings on Guantanamo Bay detentions).
  • Derogations: States sometimes misuse derogations during emergencies to suppress rights (e.g., Turkey’s derogations during the 2016 coup attempt were criticized for excessive restrictions on freedom of expression).

Case Law and General Comments

  • Lopez Burgos v. Uruguay (1981): The HRC held that states are responsible for violations committed outside their territory if they exercise effective control (e.g., Uruguay’s abduction of a citizen in Argentina violated Article 9).
  • General Comment No. 34 (2011): On freedom of expression (Article 19), the HRC clarified that states must protect journalists and allow criticism of public officials, influencing cases like India’s decriminalization of defamation challenges.

Conclusion

The ICCPR, 1966, is a vital instrument for protecting civil and political rights, providing a comprehensive framework for freedoms like life, expression, and fair trial. Its monitoring through the HRC ensures accountability, though challenges like reservations, non-compliance, and derogations persist. The Covenant’s influence on domestic laws and global human rights norms underscores its importance, but stronger enforcement mechanisms are needed to fully realize its goals.

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