Human Rights’ is a generic term and it embraces civil rights, civil liberties and social, economic and cultural rights. It is therefore difficult to give a precise definition of the term ‘Human Rights‘. However, it can be said that the rights that all people have by virtue of their Being Human are Human Rights. These are the rights which no one can be deprived without a Grave affront to justice.’[i]
‘All those rights which are essential for the protection and maintenance of dignity of individuals and create conditions in which every human being can develop his personality to the fullest extent may be termed human rights. However, dignity has never been precisely defined on the basis of consensus, but it accords roughly with justice and good society.’[ii]
Kinds of human rights according to United Nations
Human Rights are of two kinds, viz.;
(1) Civil and political rights( first generation rights)
(2) Economic, Social and Cultural Rights (Second Generation Rights)
‘Is human right a legal right?
A question arises as to whether human rights are legal right? Legal right is a right which is recognized and protected by the legal system. Legal rights have two important Essential elements i.e., firstly, the holder of the right, and secondly the person bound by the duty. Only legal persons can be bound by duties or be the holder of the legal rights. Every right therefore involves a relationship between two or more legal persons. Rights and duties are correlative, that is, a person cannot have a right without a corresponding duty. Human Rights belong to human being and the state has the corresponding duty to protect the rights of human beings. Declaration of the human Rights defenders adopted by the General Assembly on December 9, 1998 laid down under article 2 Para 1 that each state has the prime responsibility and duty to protect, promote and implement all human rights by adopting necessary measures. Para 2 of the above article states that each state shall adopt necessary legislative, administrative and other steps to ensure that the right to protect Human Rights is effectively guaranteed. further, international Covenant on civil and political rights and international Covenant on economic, social and cultural rights adopted in 1966 stipulated in the Preamble as to the obligation of states to promote Universal respect for and observance of human rights and freedoms. The above implies that human right is a legal right. While human beings have rights the state has a corresponding duty to protect the rights.
Sources of international human rights law
- International treaties
- international customs
- Other international instruments
- judicial decisions
- Official Documentations
Basis of Human Rights
1.Natural Law theory
2.Social Utility theory’[iii]
Characteristics of human rights
some of the most important characteristics of human rights are:
(i) are universal – the brightright of all human beings;
(ii) focus on the inherent dignity and equal worth of all human beings;
(iii) are equal, indivisible and interdependent;
(iv) cannot be waived or taken away;
(v) impose obligations of action and omission, particularly on states and state actors;
(vi) have been internationally guaranteed ;
(vii) are legally protected.’[iv]
‘Preamble of the universal declaration
The Preamble simply proclaims the declaration as a ‘common standard of achievement of all peoples and all nations. It may be noted that the words common standard of achievement for all peoples and for all nations’ was inserted in the Preamble because majority of the people at that time were deprived of their Human Rights as they lived under Colonial rule and the authoritarian regimes continued to oppress them.
Enumeration of rights in the declaration
The universal declaration contains 30 articles. It enumerated therein the basic postulates and principles of Human Rights in a most comprehensive manner. Out of 30 articles, while 21 articles enumerated Civil and political rights, 6 articles cover economic and social rights, which are follows :
Civil and political rights
Articles 2 to 21 deal with those Civil and political rights which have been generally recognised throughout the world. These are as follows:
1. Right to life, liberty and security of persons (Article 3).
2. Freedom from slavery or servitude (Article 4).
3. Prohibition against torture, inhuman or degrading treatment or punishment (Article 5).
4. Recognition as a person before the law (Article 6).
5. Equality before the law and equal protection of the law without any discrimination (Article 7).
6. Effective remedy before the national tribunals (Article 8).
7. Freedom from arbitrary arrest, detention or exile (Article 9).
8. Right to a fair and public hearing by an independent and impartial Tribunal (Article 10).
9. Presumption of Innocence until proved guilty in a public trial with all guarantees necessary for defence in criminal cases (Article 11, Para 1).
10. Freedom from Ex – Post facto laws (Article 11, Para 2).
11. Right to privacy, family, home and correspondence (Article 12).
12. Right to freedom of movement and residence is within the borders of a state. (Article 13, Para 1).
13. Right to leave any country, including his own and to return to his country. (Article 13, Para 2).
14. Right to seek and to enjoy in other countries Asylum from prosecution (Article 14, Para 1).
15. Right to a nationality (Article 15).
16. Right to marry and found a family (Article 16).
17. Right to own property (Article 17).
18. Right to freedom of thought, conscience and religion (Article 18).
19. Right to freedom of opinion and expression (Article 19).
20. Right to freedom of peaceful assembly (Article 20)
21. Right to participate in the Government of his country (Article 21).
Economic and Social Rights
Article 22 to 27 of the declaration deal with economic and social rights which are as follows:
1. Right to social security (Article 22).
2. Right to work and free choice of employment (Article 23).
3. Right to rest and leisure (Article 24).
4. Right to a standard of living adequate for the health of himself and his family (Article 25).
5. Right to Education (Article 26).
6. Right to participate in cultural life (Article 27).
7. Right to good social and international orders (Article 28).
It is to be noted that the declaration does not permit a state to Derogate from their obligations in public emergency which threatens the life of the nation. Thus, even in such cases the above rights cannot be suspended. However, the declaration laid down under Article 29 certain limitations to these rights and freedoms, by providing that everyone has duties to the community in which alone the final and full Development of his personality is possible. Para 2 of Article 29 provided that the rights shall be provided to the individuals subject to just requirements of morality, public order and the general welfare in a democratic society. The above may mean that rights provided in the declaration or not absolute.’[v]
[i] Maurice Cranston quoted in L.J. Macfarlane, “The Theory and Practice of Human Rights”(1985) p.7.
[ii] David P. Forsythe : ” The internationalization of Human Rights’, p.1
[iii] Dr. H. O. Agarwal, human rights, Central law Publications(2014)
[iv] Dr. S. R. Myneni, Human Rights, Asia Law House(2018)
[v] Dr. H. O. Agarwal, human rights, Central law Publications(2014)