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Published : February 03, 2011 | Author : pallavi ghorpade
Category : Human Rights laws | Total Views : 6835 | Rating :

  
pallavi ghorpade
Pallavi Prithviraj Ghorpade II NLC email: pallavighorpade@legalserviceindia.com
 

Why Must Human Rights Be Protected By The Rule Of Law

Acknowledgement :- Human rights confer rights on the human being. Human Rights are inherent to all human beings, whatever our natonality, residence, language, origin, sex, color and any other status. We are all equally entitled to human rights without discrimination.

General secretary of United Nations Ban ki moon represented a view that, “protection of all Human rights and implementation of effective counter terrorism measures are complementary and mutually reinforcing the objective of “human rights”.

Human Rights has become a established reality since the establishment of the United Nations in 1945,which has as its central concern, reaffirmed its faith in fundamental human rights , in the dignity and worth of human person, in the equal rights of men and women and of nations large and small…..1 The expression “human rights” denotes all those rights which are inherent in our nature and without which we cannot live as human beings.2 In other words, human rights being eternal part of nature of human beings are essential for individuals to develop their personality, their human qualities, their intelligence, talent and conscience and to enable them to satisfy their spiritual and other higher needs. There are inalienable rights which belong equally to all members of human family and as such, should be protected by the rule of law if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression.3

Human Rights, as such, are incorporated in various International Human Rights Instruments, such as, the International Covenant on Civil and Political Rights, the International Covenant on Economics, Social and Cultural rights; regional human rights treaties, such as, the European Convention on Human Rights and Fundamental Freedoms, the American Convention on Human Rights, the African Charter on Human and People’s Rights; subsidiary instruments, such as, the Helsinki Final Act; and National constitutions, legislation and even judicial pronouncements. The range of human rights, as contained in these instruments, treaties and national legislation is very wide and covers variety of rights including traditional civil and political rights on one hand newly developed economic, social and cultural rights, on the other.

The purpose of securing human rights as such is to provide protection to these rights against the abuse of power committed by the organs of State; to establish institution for the promotion of living condition beings and for the development of their personality; and at the same time, to provide effective remedial measures for obtaining redress in the event of those rights are violated.4

The history of origin and development of human rights :-
The history of origin and development of human rights is very fascinating. The origin of human is traced, by some scholars, back to the times of ancient Greeks. The fact that the human rights were recognized as natural rights of man is illustrated by a Greek play Antigone.

The Stoic philosophers formulated the theory of natural law after the break down of the Greek City States.5 The central notion of the Stoic philosophy was that principles of natural law were universal in their nature. Their application was not limited to any class of persons of certain states, rather it applied to everybody everywhere in the world. It was embodiment of those higher principle of justic which could be discovered by human reason and as such were superior to positive law. The natural rights of man being its embodiment were “ not the particular privileges of citizens of certain State, but something to which every human being, everywhere, was entitled in virtue of the simple fact of being human and rational.”6 They set forth further that men “ could comprehend and obey this law of nature because of their common possession of reason and capacity to developed and attain virtue.”7 In this way the Stoic philosophers were able to preach the idea of universal brotherhood of mankind and laid stress upon the equality and freedom for all.

The Stoic formulation of natural law was best suited to the Roman temperament, for they, in principle, believed that man should improve himself both rationally and morally. Writing about natural law, Cicero (106-43) B.C., like Stoic philosophers, laid emphasis upon the universal nature of it and said that natural law is of “ universal application, unchanging and everlasting.......It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligation by senate or People......
.
And there will not be different law at Rome and at Athens or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and for all times.8

Romans applied the Stoic conception of natural law in the formation of body of legal rules for the administration of justice. It was the most outstanding intellectual contribution of Romans. They developed body of rules on basis of the custom and as well as by the application of reason. Acting in this manner, they not only modernized their old law , but also laid stress upon the incorporation of high ethical standards in legal procedure.

Roman Law was divided into two categories of rules : ‘jus civile’, or Romal Civil law dealing with citizens, things and actions; and ‘jus gentium’ , or the law of non- citizens, which signifies the rights of those who were not the citizen of Rome and they referred to those rights to which men were entitled in general. It also referred to the rules of international law at the same times 9 Many principles of ‘jus gentium’ were adopted from ‘jus naturale’ (natural law) which enable them to humanize these rules in such a way that a man of common sense and good faith could approve them as just.10

Universal Declaration of Human Rights (UDHR):-
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot in Paris. The Declaration has been translated into at least 375 languages and dialects, making it the most widely translated document in the world.[1] The Declaration arose directly from the experience of the Second World War and represented the first global expression of rights to which all human beings are entitled. It consists of 30 articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitution and law. The International Bill Of Human Rights consisted of the Universal Declaration of Human Rights, the International Covenant on Economics, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill Of Human Rights.

History:-
The morals and values of human rights can be traced through the history of religious beliefs and cultures around the world. European Philosophers of the Age of Enlightenment developed theories of natural law that influenced the adoption of documents such as the Bill of Right of England, the Bill of Rights in the United States, and the Declaration of the Rights of Man and of the Citizen in France.

National and International pressure for an International Bill Of Rights had been building throughout World War II. In this1941 State of the Union address US president Franklin Roosevelt called for the protection of what he termed the “essential” Four Freedoms : freedom of specch, freedom of conscience, freedom from fear and freedom from want, as its basic war aims. This has been as part of a movement of the 1940s that sought to make human rights part of the conditions for peace at the war.[2] The United Nations Charter “reaffirmed faith in fundamental human rights, and dignity and worth of the human person” and committed all member states to promote “ universal respect for and observance of, human rights and fundamental freedom for all without distinction as to race, sex , language or religion.”[3

When the atrocities committed by Nazi Germany became public knowledge around the world after World War II, the consensus within the world community was that the United Nations Charter did not sufficiently define the rights it referenced.[4][5] A universal declaration that specified the rights of individuals was not necessary to give effect to the Charter’s provisions on human rights.[6]

Drafting :-
Canadian John Peters Humphrey was called upon by the United Nations Secretary-General to work on the project and become the Declaration’s principal drafter. At the time Humphery was newly appointed as Director of the Division Of Human Rights within the United Nations Secretariat.[7] The Commission on Human Rights, a standing body United Nations, was constituted to undertake the work of preparing what was initially conceived as an International Bill Of Rights. The membership of the Commission was designed to be broadly representative of the global community with representatives of the following countries serving : Australia, China, India, UK .......etc.

Adoption :-
The Universal Declaration was adopted by General Assembly on 10 December 1948 by a vote of 48 in favour , 0 against, with 8 abstention (Byelorussian SSR, Czechoslovakia, Poland, Ukrainian SSR, USSR, as well as Yugoslavia, South Africa and Saudi Arabia).[8]

The Countries such as Australia, Canada, China, India, UK, United States .....etc. voted in favour of the Declaration.[9]

Despite the central role played by Canadian John Humphrey, the Canadian Government at first abstained from voting on the Declaration’s draft, but later voted in favour of the final draft in the General Assembly.[10]

Structure:-
The underlying structure of the Universal Declaration was introduced in its second draft which was prepared by Rene Cassin worked from a first draft prepared by John Peters Humphrey. The structure was influenced by the Code Napoleon, including a preamble and introductory general principles.[11] Cassin compared the Declaration to the portico of Greek temple, with a foundation, steps, four columns and a pediment. Articles 1and 2 are the foundation blocks, with their principles of dignity, liberty, equality and brotherhood. The seven paragraphs of the preamble, setting out the reasons for the Declaration, are represented by the steps. The main body of the Declaration forms the four columns. The first column (articles 3-11)constitutes rights of the main individual, such as the right to life and the prohibition of slavery. The second column (articles 12-17) constitutes the rights of the individuals in civil and political society. The third column (articles18-21) is concerned with spiritual, public and political freedom such as freedom of religion and freedom of association. The fourth column (articles 22-27) sets out social, economic and cultural rights.

Preamble :-
The Universal Declaration begins with Preamble consisting of seven paragraphs followed by the statement “proclaiming” the Declaration.
Each Paragraph of the Preamble sets out a reason for the adoption of the Declaration. The first paragraph asserts that the recognition of human dignity of all people is the foundation of justice and peace in the world. The second paragraph observes that disregard and contempt for the human rights have resulted in the baebarous acts which have outraged the conscience of mankind and that the four freedoms :freedom of speech, belief, freedom from want, freedom from fear-which is “proclaimed as the highest aspiration” of the people. The third paragraph states that so that people are not compelled to rebellion against tyranny, human rights should be protected by the rule of law. The fourth paragraph relates human rights to the development of friendly relations between nations. The fifth paragraph links the Declaration back to the United Nations Charter which reaffirms faith in fundamental human rights and dignity and worth of the human person. The sixth paragraph notes that all members of the United Nations have pleaded themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedom . The seventh Paragraph observes that “ a common understanding” of rights and freedoms is of “the greatest importance” for the full realization of that pledge. [11]

Commemoration : International Human Rights Day
The adoption of the Universal Declaration is significant international commemoration marked each year on 10 December and is knows as Human Rights Day or International Human Rights Day. The commemoration is observed by individuals, community and religious groups, human rights organisation, parliaments, governments and the United Nations. Decadal commemorations are often accompanied by campaigns to promote awareness of the Declaration and Human Rights.2008 marked the 60th anniversary of the Declaration and was accompanied by year long activities around the theme “Dignity and justice for all of us.”

Significance and legal effects :-
Significance;-

In the preamble, governments commits themselves and their peoples to measures to secure the universal and effective recognition and observance of human rights set out in the Declaration. Eleanor Roosevelt supported the adoption the UDHR as a declaration, rather than as a treaty, because she belived that it would have the same kind of influence on global society ae the United States Declaration of Independence had within the United States. In this she proved to be correct. Even though not formally legally binding, the Declaration has been adopted in or influenced most national constitutions since 1948. It also serves as the foundation for a institutions protecting human rights.

Legal Effects :-
While not a treaty itself, the Declaration was explicity adopted for the purpose of defining the meaning of the words “fundamental freedom” and “human rights” appearing in the United Nations Charter, which is binding on all member states.[12]For this reason,the Universal Declaration is a fundamental constitutive document of the United Nations. Many international lawyers, in addition , believe that the Declaration forms part of customary international law and is a powerful tool in applying diplomatic and moral pressure to governments that violate any of its articles. The 1968, United Nations International Conference on Human Rights advised that it “ constitutes an obligation for the members of the international community” to all persons. The Declaration has served as the foundation for two binding UN human rights covenants, the International Covenant on Civil and Political Rights, the International Covenant on Economics, Social and Cultural rights; and the principle of the Declaration are elaborated in the international treaties such as the International Covenant ion on the elimination of All Forms of Racial Discrimination, the the International Covenant ion on Discrimination Against Torture and many more. The Declaration continues to be widely cited by the governments, academics, advocates and constitutional courts and individual human being who appeal to its principles for the protection of their recognized human rights.

The Protection Of Human Rights Act,1993.
The International Covenant on Civil and Political Rights (ICCPR);-


The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on 16 December 1966, and in from March 23,1976. It commits its parties to respect the Civil and Political Rights of individual, including the right to life, freedom of religion, freedom of specch, freedom of assembly, electoral rights and rights to due process and a fair trial. As of October 2009, the Covenant had 72 signatories and 165 parties.

The ICCPR is a part of International Bill of Human Rights, along with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Economics, Social and Cultural rights (ICESCR).

International Covenant on Civil and Political Rights is monitored by the Human Rights Committee (a separate body to the Human Rights, under the UN Charter in 2006) with permanent standing, to consider periodic reports submitted by member States on their compliance with the treaty. Members of the Human Rights Committee are elected by member states, but do not represent any State.

The International Covenant on Economics, Social and Cultural rights :-
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that these rights derive from the inherent diginity of the human person,

Recognizing that in accordance with the The Universal Declaration of Human Rights, the ideal of the human beings enjoying freedom from fear and want can only be achieved if the conditions are created whereby everyone may enjoy his Social and Cultural rights, as well as his civil and political rights,

Considering the obligation of states under the Charter of the United Nations to promote Universal respect for, and observance of human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community which he belongs is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.

Enforcement Machinery for Human Right under Rule of Law:-
“Liberty is itself the gift of the law and may by the [be] fortified or abridged.(1)The principle that no one shall be deprived of his life and Liberty without the authority of law was not the gift of the Constitution. It was a necessary [corollary] of the concept relating to sanctity of life and Liberty; it existed and was in force before the coming into force of the Constitution.”(2)

The September 11,2001 attacks in the New York and Washington D.C.,(3) and the December 13, 2001 attack on the Indian Parliament (4) have intensified the debate regarding the necessity of formulating national security laws in the India and the laws’ potentially serious impact on human rights and civil liberties.(5) The strengthening of national security laws (6) worldwide is apparently pursued with the objective of combating terrorism (7)and other forms of internal and external threats to the States and the societies in which people live. In response to these developments, the Indian Government passed a new anti-terrorism law, which in this author’s view, was draconian and unnecessary. The Indian Govt. promulgated this law notwithstanding substantial public opinion against its passage. In Act of 2002 (POTA).(8) When it was still a bill. After a unanimous decision that “there is no need for the enactment of the law based on the Draft Prevention of Terrorism Bill [of] 2000,” the NHRC recommended the bill not be passed.

Why must human rights be protected by the rule of law:-
Human Rights and national security are at times perceived to be odds with one another. When Govt. officials speak about national security, their arguments rest primarily upon the primarily upon the premise that protecting human rights and civil liberties is at times subservient to protecting national security.

The international human rights framework, conventions or treaties to which India was signatory or ratifying party, also justified the limitations on governmental powers. However, the contemporary reality of Indian executive governance demonstrates the weakness and inadequacies of the treaties and conventions. As a result, police, military and para-military forces continue to violate human rights. This problem underscore the need to developed a culture amongest law enforcement officials that respects human rights as a sine qua non for the preservation of law. Passing certain laws under the guise of protecting national security in India offers an occasion to examine the human rights understanding in a constitutional sense. These laws granted significant powers to the Indian executive, thus providing greater opportunity for abuse and violation of fundamental rights.

Conclusion:-
Human Rights are said to be recognized. Human Rights are said to be inalienable, natural and inherent. All human beings are said to be essentially equal. The basic assumptions is that the human beings are possessed with rational and moral capabilities which differentiate them from other creatures on earth and therefore, they are entitled to certain rights and freedoms which other creatures do not have.
________________________________________________________________________
1. “Universal Declaration of Human Rights” Retrived 18 Dec.,2009.
2. Morsink, Johanns(1999). The Universal Declaration of Human Rights: origins, drafting
and intent.
3. United Nations Charter, preamble and article 56
4. Overview
5. Ibid
6. Cranston, M., Human Rights Today. 1962,p.9
7. Supra, n. 6 p. 3
8. De Republic,III , xxii, 33, quoted in d’ Entreves, Natural Law,1960,PP.20-21
9. Supra, n. 4p.1210.Swain,J.E., A. History of World Civilization,1947,pp. 172-173;It may be noted here with concern that in the Graeco-Roman system of thoughts, particularly in the teaching of Aristotle the slavery was recognized as valid practice- Aristotle; Politics, Book one.
10.Swain,J.E., A. History of World Civilization,1947,pp. 172-173;It may be noted here with concern that in the Graeco-Roman system of thoughts, particularly in the teaching of Aristotle the slavery was recognized as valid practice- Aristotle; Politics, Book one.
11. Glendon,pp62-64
12. Mary Ann Glendon, A World Made New : :) Eleanor Roosevelt and The Universal Declaration of Human Rights, Chapter 10

Authors contact info - articles The  author can be reached at: pallavighorpade@legalserviceindia.com




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Posted by Bajrang A. Masvekar on March 09, 2011
It's an better than best

Posted by Ruturaj Shinde on February 28, 2011
very nice ............


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