human right manu
TRANSCRIPT
-
7/28/2019 Human Right Manu
1/29
CONTENTS
1. INTRODUCTION
2. ICCPR
3. OPTIONAL PROTOCAL
4. ICCPR AND OPTIONAL PROTOCAL
5. HUMAN RIGHTS UNDER FIRST OPTIONAL PROTOCAL
6. HUMAN RIGHTS UNDER INDIAN CONSTITUTION
7. CONCLUSION
-
7/28/2019 Human Right Manu
2/29
INTRODUCTION
Man has the right to live. He has the right to bodily integrate and to the
means necessary for proper development of life, particularly food, clothing,
shelter, medical care, rest and finally necessary social services. Hence human
rights are undeniable and inherent rights of every individual. The concept of
human rights has its origin in humanism which recognizes the value and
dignity of man and makes him the measure of all things or somehow takes
human nature, its limits, or its interests as its theme.
There are lot of international documents relating with human rights. Eg.
UDHR, ICCPR, Optional Protocols etc,. The main object of all these
documents is to protect human rights. So for achieving this purpose there are
some complaints alleging mechanism like Human Right Committee which is
established under First Optional Protocol of ICCPR.
For understanding the First Optional Protocol of ICCPR, we have some
idea about the historical background of the First Optional Protocol, how it
relates with ICCPR and the obligations of State Parties under the Optional
Protocol to the International Covenant on Civil and Political Rights. When we
come to the implementation and enforcement part of the Optional Protocol of
ICCPR, we can see that there is a complaint alleged mechanism i.e., Human
Rights Committee.
The First Optional Protocol of ICCPR is procedural and provides a
mechanism for the Human Rights Committee to receive and consider
individual complaints alleging a violation of the Covenant. As its name makes
clear, the Protocol is not compulsory, but once a State party to the Covenant
also becomes a party to the Protocol, any person subject to the jurisdiction of
the State party may lodge a written complaint with the Human Rights
Committee (subject to any permissible reservations). Although the Optional
-
7/28/2019 Human Right Manu
3/29
Protocol is organically related to the Covenant, it is not automatically in force
for all States parties to the Covenant.
In Indian scenario, the effect of First Optional Protocol is not
identifiable even though we are party to the First Optional Protocol of ICCPR.
But we have The Constitution of India is distinctive for its commitment to
provide full political, economic, social, and cultural rights to all its citizens
irrespective of caste, creed, religion or race. The significance of Indias
constitution is also immense for its mixed policy adoption on liberal and
socialistic norms of governance. According to Constitution of India, we can
get remedy under Article.32 and Article.226, for the violation of fundamental
rights. The sole object of the Article 32 and Article 226 of the Constitution of
India is the enforcement of the fundamental rights guaranteed under Part III of
the Constitution of India.
-
7/28/2019 Human Right Manu
4/29
ICCPR
Meaning
The International Covenant on Civil and Political Rights covers a broad
range of civil and political rights ranging from the right to life to the right to a
fair trial and the right to non-discrimination. Individual rights that may be
invoked before the Committee are set out in articles 6 to 27 inclusive,
comprising Part III of the Covenant. The complaint mechanism for alleged
violations of those articles is contained in the First Optional Protocol to the
Covenant, a separate treaty open to States parties to the Covenant. States that
have become a party to the Optional Protocol recognize the competence of the
Human Rights Committee - a panel of 18 independent experts who meet three
times a year to receive complaints from persons within their jurisdiction
alleging violations of their rights under the Covenant.
Implementation
Article 28 of the Covenant provides for the establishment of a Human Rights
Committee consisting of eighteen independent experts, nominated and elected
by States Parties to the Covenant, who serve in their personal capacities, which
means that they are not acting on behalf of their State. The Human Rights
Committee monitors the implementation of the Covenant in a number of ways.
The Committee examines periodic reports from States Parties to the Covenant
on their compliance (Article 40). Such a report must be submitted by each
State within one year of becoming party to the Covenant, and thereafterwhenever the Committee so determines. The reports are examined in public
-
7/28/2019 Human Right Manu
5/29
and in the presence of the representative of the State concerned, who may be
questioned. On completion of each State report, the Committee issues
concluding observations which reflect the main points of discussion, as well as
suggestions and recommendations to the Government concerned on ways in
which the Covenant could be better implemented. The Committee can consider
complaints of one State against another, provided that both have made a
special declaration recognizing this role of the Committee under Article 41. To
date, no such complaints have been received. The Human Rights Committee
also interprets the content and meaning of specific articles of the Covenant in
its General Comments. These establish the jurisprudence of the Covenant
and thus guide the States Parties in their adherence to their obligations under
the Covenant and in the preparation of State reports. The Committee reports
annually on its work to the United Nations General Assembly through the
Economic and Social Council (ECOSOC).
WHAT IS AN OPTIONAL PROTOCOL?
The term protocol, in the context of international law refers to the forms
of ceremony and etiquette observed by diplomats and heads of state. A
protocol has similar legal characteristics as a treaty. However, protocol is an
agreement of a less formal nature than a treaty or convention. Generally, a
protocol amends, supplements or clarifies a multilateral treaty. A protocol maybe on any topic relevant to the original treaty and is used either to further
address something in the original or parent treaty, or to address a new concern.
A protocol is also used to add a procedure for the operation and enforcement
of the treaty. A protocol is optional because it is not automatically binding on
States that have already ratified the original treaty and in order to be binding,
the states must independently ratify a protocol. An example of a protocol is the
Optional Protocols to the Convention on the Rights of the Child concern the
-
7/28/2019 Human Right Manu
6/29
involvement of children in armed conflict and the sale of children, child
prostitution and child pornography.
Very often, human rights treaties are followed by "Optional Protocols"
which may either provide for procedures with regard to the treaty or address a
substantive area related to the treaty. Optional Protocols to human rights
treaties are treaties in their own right, and are open to signature, accession or
ratification by countries who are party to the main treaty. The term protocol
is used for an additional legal instrument that complements and add to a treaty.
A protocol may be on any topic relevant to the original treaty and is used
either to further address something in the original treaty, address a new or
emerging concern or add a procedure for the operation and enforcement of the
treatysuch as adding an individual complaints procedure. A protocol is
optional because it is not automatically binding on States that have already
ratified the original treaty; States must independently ratify or accede to a
protocol.
A State can become party to a treaty in one of two main ways. Firstly, it
can sign the treaty, following which, according to the rules of internationallaw, the State may not act contrary to the objects and purposes of the treaty.
Signature is followed by ratification. In depositing an instrument of
ratification, a State formally indicates its intent to be bound by the treaty.
Alternatively, a State can accede to a treaty. Accession, whereby a State that
has not signed a treaty agrees to be bound by it, is equivalent to ratification.
The treaty in question typically provides a short period of time after the date of
ratification or accession before the State is actually bound by the terms of the
treaty. In the case of the Covenant, this is three months Parties to the Covenant
may also become parties to either or both of its two Optional Protocols. The
first Optional Protocol sets out a system by which the Human Rights
Committee can receive and consider complaints from individuals, who allege
that their human rights have been violated.
-
7/28/2019 Human Right Manu
7/29
THE ICCPR AND THE OPTIONAL PROTOCOL
a) Historical BackgroundAfter the horrors of World War II, a broad consensus emerged at the
worldwide level demanding that the individual human being be placed under
the protection of the international community. As particularly the atrocities
committed against specific ethnic groups had shown, national governments
could gravely fail in their duty to ensure the life and the liberty of their
citizens. Some had even become murderous institutions. However, never again
should a holocaust occur. Accordingly, since the lesson learned was that
protective mechanisms at the domestic level alone did not provide sufficiently
stable safeguards, it became almost self-evident to entrust the planned new
world organization with assuming the role of guarantor of human rights on a
universal scale. At the San Francisco Conference in 1945, some Latin
American countries requested that a full code of human rights be included in
the Charter of the United Nations itself. Since such an initiative required
careful preparation, their motions could not be successful at that stage.
Nonetheless, human rights were embraced as a matter of principle. The
Charter contains references to human rights in the Preamble, among the
purposes of the Organization and in several other provisions. Immediately
after the actual setting up of the institutional machinery provided for by the
Charter, the new Commission on Human Rights began its work for the
creation of an International Bill of Rights. In a first step, the Universal
Declaration of Human Rights was drafted, which the General Assembly
adopted on 10 December 1948.
-
7/28/2019 Human Right Manu
8/29
In order to make human rights an instrument effectively shaping the
lives of individuals and nations, more than just a political proclamation was
needed. Hence, from the very outset there was general agreement to the effect
that the substance of the Universal Declaration should be translated into the
hard legal form of an international treaty. The General Assembly reaffirmed
the necessity of complementing, as had already been done in the Universal
Declaration, traditional civil and political rights with economic, social and
cultural rights, since both classes of rights were interconnected and
interdependent. The only question was whether, following the concept of
unity of all human rights, the new conventional rights should be encompassed
in one international instrument or whether, on account of their different
specificities, they should be arranged according to those specificities. Western
nations in particular claimed that the implementation process could not be
identical, economic and social rights partaking more of the nature of goals to
be attained whereas civil and political rights had to be respected strictly and
without any reservations. It is this latter view that eventually prevailed. By
resolution 543 (VI) of 4 February 1952, the General Assembly directed the
Commission on Human Rights to prepare, instead of just one Covenant, two
draft treaties; a Covenant setting forth civil and political rights and a parallel
Covenant providing for economic, social and cultural rights. The Commission
completed its work in 1954. Yet it took many years before eventually the
political climate was ripe for the adoption of these two ambitious texts. While
both the Western and the Socialist States were still not fully convinced of their
usefulness, it was eventually pressure brought to bear upon them from Third
World countries which prompted them to approve the outcome of the
protracted negotiating process. Accordingly, on 16 December 1966, the two
Covenants were adopted by the General Assembly by consensus, without any
abstentions. Since that time, the two comprehensive human rights instruments
of the United Nations have sailed on different courses. However, contrary to
many pessimistic expectations, they have mostly been ratified simultaneously.
The difference in the circle of States parties is low. As of June 2008, the
International Covenant on Civil and Political Rights (ICCPR) comprises 161
States parties, whereas the International Covenant on Economic, Social and
Cultural Rights (ICESCR) holds the second place with 158 ratifications. The
-
7/28/2019 Human Right Manu
9/29
Russian Federation, for instance, is a party to both Covenants, while the
United States has left aside the ICESCR, and China, on the other hand, has not
found it convenient to ratify the ICCPR. In general, however, the lacunae
include only a small part of the world population. True universality is within
reach
The First Optional Protocol of ICCPR is procedural and provides a
mechanism for the Committee to receive and consider individual complaints
alleging a violation of the Covenant, that is to say of the substantive rights
contained in Part III, if appropriate in conjunction with the provisions of Parts
I and II. As its name makes clear, the Protocol is not compulsory, but once a
State party to the Covenant also becomes a party to the Protocol, any person
subject to the jurisdiction of the State party may lodge a written complaint
with the Human Rights Committee (subject to any permissible reservations).
This is not limited to nationals, or to persons within a States territory, but
extends to all persons who are directly subject to a States exercise of power
through its authorities. Thus, for example, a national of a State party residing
abroad who was denied a passport by that State was able to bring a claim to
the Committee. The Protocol sets out in articles 1, 2, 3 and 5 a series of
admissibility requirements, explicit and implicit, which a complaint must
satisfy before its substance, or merits, can be considered. Article 4 of the
Protocol sets out basic procedural requirements for the treatment of a
complaint. Under article 6, the Committee reports annually to the General
Assembly on its activities concerning complaints, while articles 7 through 14
contain largely standard savings and technical provisions on the mechanics of
becoming a party, entry into force, notification, amendment, denunciation and
the like. Article 10, like the parent Covenant, provides that the Protocol too
extends without exception to all parts of federal States. Article 12 allows a
State party to denounce the Optional Protocol.
-
7/28/2019 Human Right Manu
10/29
HUMAN RIGHTS UNDER FIRST OPTIONAL PROTOCOL
a. ImplementationUnder the Covenant on Civil and Political Rights it is only the State who
have locus standi to file compliant or communication as the complaints are
designated. The individual has been conferred such a right under the first
Optional Protocol to the Covenant on Civil and Political Rights. An individual
may now lodge a complaint against a state violating human rights under the
Covenant. However, such a complaint can be lodged only against a State party
to the Covenant. Article 2 of the Protocol runs:
A State Party to the Covenant that becomes a party to the present
protocol recognizes the competence of the Committee to receive and considercommunications from individuals subject to the jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
covenant. No Communication shall be received by the Committee if it
concerns a State Party to the Covenant which is not a party to the present
protocol.
An individual who claims that any of his rights enunciated in the
Covenant has been violated and he had exhausted all available domestic
remedies may submit a written communication to the Human Rights
Committee for consideration. Ni anonymous communication will be
entertained. Similarly, a communication which the Committee considers as
abuse of the right of submission of such communication will not be
entertained. The same would be fate a complaint which is incompatible with
the provisions of the Covenant.
-
7/28/2019 Human Right Manu
11/29
Once a communication against a state is entertained, the Human Rights
Committee would bring it to the attention of the alleged delinquent State. Such
would submit to the Committee its explanation clarifying the matter and the
remedy, if any within six months. Thereafter the Human Rights Committee
would proceed to consider communications in the light of all written
information made available to it by both the parties. The Committee will
consider such communication only after ascertaining that the same matter has
not been examined under another procedure of international investigation or
settlement and after ascertaining that the individual complaint had exhausted
all domestic remedies available to him. The Committee will consider the entire
matter in closed door meetings and thereafter will communicate its views to
the individual complainant and the State concerned.
In its annual Report, the Human Rights Committee will include a report
of its activities under the protocol.
It should be noticed that the Protocol all along uses the expression
communication and not complaint. Though virtually communication is
nothing but a complaint. It should also be noticed that the Committee does not
render decision. Even the word recommendation has not been used. The
expression used is views.
One may say what the value of mere views is when Committee is not
competent even to make its recommendation much less to render a decision.
Its views are not binding on the state concerned. The Human Rights
Committee includes these views in its annual report. This means that the
activities of the alleged delinquent state will come before the international
community. It will certainly gather public opinion. The delinquency of the
State will come under the gaze of everybody. All states will know that the
delinquent state is not adhering to the provision of the Covenant.
The greatest relevance of this provision is that an individual can expose
the delinquent state before the international community and people. Even if no
direct benefit accrues to the individual addressing a communication to the
-
7/28/2019 Human Right Manu
12/29
human rights committee about abuse of human rights, the greatest gain is that
individual has got locus standi to come before international forum.
i) Human Rights Committee
The Human Rights Committee was established on the basis of the
Covenant and it considers periodic reports on the measures states have adopted
to give effect to the rights guaranteed by the Covenant and on the progress
made in the enjoyment of the rights. It also considers individual complaints
received on the basis of the Optional Protocol and can receive inter-state
complaints on the basis of an optional procedure based on Art. 41 of the
Covenant.
The Committee consists of 18 members who are nationals of the States
Parties. They have to be of high moral character and recognized competence
in the field of human rights. Consideration is given to the usefulness of legal
expertise. Each state party may nominate not more than two of its nationals as
candidates. The members are elected by secret ballot of all the State Parties.
Equitable geographical distribution and representation of different forms of
civilisation and of the principal legal system are taken into account. There has
been criticism of the lack of African and Asian experts, in particular in relation
to the number of Eastern and Western Europeans, but this shortcoming reflects
the small number of African and Asian parties to the Covenant.
The functions of the Committee and its implication its powers, are
contained in Article 40 of the Covenant. Paragraph 2 of the Article states,
impart, that all reports shall be submitted to the Secretary-General of the
United Nations, who shall transmit them to the Committee for consideration.
Paragraph 4 of Article 40 amplifies this provision as follows:
The Committee shall study the reports submitted by the states parties to
the present Covenant. It shall transmit its reports, and such general comments
as it may consider appropriate, to the State Parties. The Committee may also
-
7/28/2019 Human Right Manu
13/29
transmit to the Economic Council these comments along with the copies of the
reports it has received from State Parties to the present Covenant.
ii) Inter-state ComplaintsThis procedure is optional and only applies to states which have
expressly accepted it. It includes three stages: bilateral negotiations between
the states concerned, the good offices of the Human Rights Committee and
reports by the Committee to the states concerned. It also insides the possibility
of appointing an adhoc Conciliation Commission, if the matter is not settled to
the satisfaction of both parties.This possibility can be used, if a State Party
finds that another state party has not fulfilled its obligations under the
Covenant. The exhaustion of domestic remedies is required, if it would not
unreasonably prolong the procedure.
The committee provides its good offices for a friendly settlement of the
dispute. It can ask for all information from the parties. The parties have the
right to submit their observations orally or in a written form. The Committee
prepares a report which will be transmitted to the States Parties concerned. If
friendly settlement is achieved, the report contains the facts and the solution
achieved. If friendly settlement is not possible, it only contains the facts. IN
other words the Committee cannot express its opinion on whether there has
been a violation or not. The report has to be submitted within 12 months.
There is also the possibility of appointing an ad hoc Conciliation
Commission with the prior consent of the State Parties involved, if the matter
is not resolved to the satisfaction of both State Parties. The Commission will
consist of five persons serving in their personal capacity. The members cannot
party to the Covenant, or of a State which has not made a declaration under
Art.41. The parties have to inform the Committee within three months whether
they accept the contents of the report on conciliation. If no settlement is
reached, there are no other means available.
-
7/28/2019 Human Right Manu
14/29
There was no doubt that the Committee of the Commissions draft was a
specialized body: a quasi-judicial organ setup for the very specific purpose of
receiving complaints alleging non-observance of the Covenant..and that to
transmit reports to the Committee might be to invite it to pass judgment
without being seized of a complaint by a state party...prejudice its autonomy
and independence
Inter-state complaints have not occurred in practice, although the
procedure came into force in 1979. Because both states involved must have
made the declaration, it does not seem very probable in the opinion of some
authors that the procedure will be used in the immediate future.
Assessment of I nter-State Complain ts
A State party may submit a communication to the Committee alleging
that another State party is not fulfilling its obligations under the Covenant.
This reflects the dual understanding of a human rights treaty as not simply a
contract between a State party and persons subject to its jurisdiction, but also a
multilateral treaty in the traditional sense that all States parties to a treaty have
an interest in the compliance of other States parties with their obligations. In
this fashion, it can be legally said that human rights violations in a State party
are of direct concern to all other States parties. Such a complaint, which is
provided for in article 41 of the Covenant, may, however, only be made in
respect of two States parties that have declared that they recognize the
competence of the Committee to receive and consider such inter-State
complaints. As of publication, some 48 States had made such a declaration. To
date, however, no inter-State complaint has been submitted to the Committee.
Nevertheless, it is instructive to outline the way in which this procedure would
operate. The first step would be for the State lodging the complaint to bring the
matter to the attention of the State that is alleged not to be fulfilling its
obligations. Within three months, the latter should reply, in the form of a
written explanation or clarification. If, within six months, the matter is not
settled to the satisfaction of both parties, either may refer it to the Committee,
which may deal with it once satisfied that, within a reasonable period of time,
-
7/28/2019 Human Right Manu
15/29
all domestic remedies have been tried, without success. The Committee may
then take the matter up and propose its good offices in the search for a friendly
solution. If there is still no agreement, the Committee may appoint a five-
person conciliation commission, with the agreement of the States parties
directly concerned, but not including their nationals among its members, with
instructions to complete its business and submit a report to the Chairperson of
the Committee and, through that person, to the parties in dispute, within 12
months.
iii) Individual complaintsReceivabil ity of Complaints:
The following grounds of admissibility are set in the Optional Protocol
(Article 5) or in the provisional rules of procedure of the Committee.
A communication must not be anonymous. It has to be submitted by an individual or individuals subject to the jurisdiction
of a state is party to the Protocol.
There has to be proof that the individual is a victim of a violation by that stateparty of one of the rights set forth, in the Covenant. The Communication must
be submitted by the victim or by his appointed representative. It can be
submitted on behalf of an individual if he appears to be unable to submit it
himself.
Abuse of the right of submission constitutes a ground of admissibility The communication must be compatible with the provisions of the Covenant. The communication must not be under examination by another procedure of
international investigation or settlement.
Exhaustion of domestic remedies is required, unless this would unreasonablyprolong the procedure.
Regarding Article 5(2a) it may be added that the Committee may
proceed, when the competing procedure is completed. However, several
countries have made reservations to bar consideration of any communications
-
7/28/2019 Human Right Manu
16/29
that are being or have been considered in another forum in order to prevent an
appeal to the Committee. The Committee has determined that the 1503
procedure cannot be considered as the same matter as an individual
complaint under the Optional Protocol.
There is also another exception to the requirement under Article 7 of the
Optional Protocol. It is not valid, if there are no effective domestic remedies.
The violations must naturally also have occurred after the entry into force of
the Covenant, that is, 1976. But in practice, reference to violations before that
date may be taken into consideration if the violations have continued or have
had effects after ratification and entry into force.
Working methods and Practices:
In 1977 the Committee decided to establish a working group to consider
the communications in the light of all written information submitted to it by
the individual and by the State Party concerned and to make recommendations
to the Committee regarding admissibility.
In contrast to the 1503 procedure the principle of equality of arms is
typical of this procedure. Both parties may be requested to furnish relevant
information and may be afforded an opportunity to comment on the
information received from the other party. After the decision on admissibility
the decision and the text of relevant documents are communicated to the State
Party. The author is also informed of the decision. Under Article 4, paragraph
1, the State Party has to submit to the Committee written explanations and
statements clarifying the matter and the remedy within six months. These are
forwarded by the Committee to the complainant, who may submit any
additional written information. Under Article 5, (1), the final views of the
Committee are forwarded to the State Party and to the individual.
Substantial issues that have been examined by the Committee are the
right to life, the right not to be subjected to torture or to cruel, inhuman or
-
7/28/2019 Human Right Manu
17/29
degrading treatment, the right to be treated humanely during imprisonment, the
right of access to counsel and to fair trial without undue delay, the right to
freedom of expression, the right to engage in political activity, the right not to
be subjected to discrimination on the grounds of sex and the rights of
minorities. The Human Rights Committee, during its three sessions
endeavouring to enhance the follow-up to its recommendations announced
some 60 significant decisions in individual cases.
Sanctions and Follow-up:
The Committee is not a UN body in the formal sense. There are no
formal provisions for oversight or implementation of the Committees
decisions by other bodies. The Committees annual reports are submitted to
the UN General Assembly and are made available for sale. The views of the
Committee are issue in press release for general distribution. Publicity can be
considered as a Sanction in the absence of judicial sanctions.
The Committee is not a court and has no power to enforce it decisions.The publishing of its finding is presumably the result of its hoping to
encourage the government concerned to rectify the situation of the individual
victim. The government can also see the advantages of modifying its
behaviour in order to avoid future embarrassment. This is reflected in many of
the Government Communications addressed to the author.
-
7/28/2019 Human Right Manu
18/29
Scheme of the Implementation Machinery of the International Covenant
on Civil and Political Rights
Establishment of the facts
Good officers (Article 41 para 1,e,f,g) (Article 4, Otional Protocol)
HUMAN RIGHTS COMMITTEE
Receiveability(Article 41, para 1c)Receiveability (Article 2,3,5 of Optional
Protocol)
International Covenant on Civil and Political Rights
Communication State v. State Article 41
Optuional Jurisdiction
Communication: Individual v. State;
Optional Protocol Article 1
Report Article 41.
para, 1h
Article 42
Ad hoc Conciliation
Commission:
Report
Formulation of
views Article 5, para
4 Optional Protocol
State concerned
Individual
-
7/28/2019 Human Right Manu
19/29
(b) Enforcement
Individuals who claim that any of their rights under the International
Covenant on Civil And Political Rights have been violated by a State party,
and who have exhausted all available domestic remedies, may submit written
communications to the Human Rights Committee for consideration under the
Optional Protocol. No communication can be considered unless it concerns a
State party to the Covenant that has recognized the competence of the
Committee by becoming a party to the Optional Protocol. Of the 160 States
that have ratified, acceded to or succeeded to the Covenant, 109 have accepted
the Committees competence to deal with individual complaints by becoming
parties to the Optional Protocol.
Consideration of communications under the Optional Protocol is
confidential and takes place in closed meetings (Article 5, paragraph 3, of the
Optional Protocol). Under rule 102 of the Committees rules of procedure, all
working documents issued for the Committee are confidential unless the
Committee decides otherwise. However, the author of a communication and
the State party concerned may make public any submissions or information
bearing on the proceedings, unless the Committee has requested the parties to
respect confidentiality. The Committees final decisions (Views, decisions
declaring a communication inadmissible, decisions to discontinue the
consideration of a communication) are made public; the names of the authors
are disclosed unless the Committee decides otherwise.
Communications addressed to the Human Rights Committee are
processed by the Petitions Team of the Office of the United Nations High
Commissioner for Human Rights (OHCHR).
-
7/28/2019 Human Right Manu
20/29
The mandate of the Human Rights Committee:
The Human Rights Committee can investigate allegations of violations
of the human rights set out in the ICCPR which are brought to its attention by
the victims of violations or their representatives.
The rights set out in the ICCPR include the following:
the right to life the right to freedom from torture the right to liberty and security the right to a fair trial the right to freedom of association and assembly the right to freedom of expression the right to an effective remedy the right to privacy the right to freedom from discrimination.
These rights are described in articles 2 to 27 of the ICCPR. An article is
a paragraph in which a specific right and the manner in which the state must
protect that right are described. If a persons human rights set out in the
ICCPR is violated, he can submit a complaint to the Human Rights
Committee.
The Human Rights Committee may decide to investigate that particular
complaint, and, if it thinks that in this case the state concerned may be in
violation of the ICCPR, it can take action. However, it is important to note that
it can take from to 2 to 4 years for the Committee to investigate a case and take
a decision. The exception to this lengthy time period is that the Committee can
request a state to take interim measures.
http://www.frontlinedefenders.org/manual/en/mechs1_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs2_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs3_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs4_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs6_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs8_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs10_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs10_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs8_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs6_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs4_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs3_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs2_m.htmhttp://www.frontlinedefenders.org/manual/en/mechs1_m.htm -
7/28/2019 Human Right Manu
21/29
The range of actions that the Commi ttee can take is descri bed below:1
1. Request interim measuresWhen the Committee receives a complaint that a violation of the ICCPR
is about to take place it can request the state concerned to take interim
measures to prevent the violation taking place. Interim measures mean the
Committee asks the state to take temporary action to prevent a violation before
formal investigations into the complaint have been completed.
2 Declare that the state has violated the ICCPR
When the Committees investigations into a complaint are completed the
Committee can take a decision (called its views) on the case. In itsviews,
which are made public, the Committee can declare that the state concerned has
violated the ICCPR. Such a declaration can be politically very embarrassing
for a state.
3 Call upon a state to end a violation of the ICCPR
In its views the Committee can also call upon the state to take
immediate action to end a violation of the ICCPR. For instance, the Committee
can call upon a state to release a victim from detention, to commute a death
sentence imposed after an unfair trial, or to compensate a victim. Although the
state concerned is not legally bound to comply with the Committees views,
the Committee can ask to be informed of the action a state has taken to end or
remedy a violation. The Committee usually asks the state to provide this
information within 90-180 days from the date on which it adopted its views.
Although the Committee cannot force a state to right a wrong, its
decisions can carry political and moral force and many states do comply with
-
7/28/2019 Human Right Manu
22/29
its decisions. In addition, decisions of the Committee often attract attention
from the international media. This can put pressure on a state to comply with a
decision of the Committee.
How the Committee investigates a complain t (the formal procedure):
Step 1 Admissibility
The first thing the Committee does when it receives a complaint is
decide whether or not it will accept the complaint. A complaint which the
Committee decides to accept is called admissible and a complaint which the
Committee decides not to accept is called inadmissible.
Step 2 Investigating a complaint
Once a complaint has been declared admissible the state concerned is
given a further 6 months to send written information to the Committee
expressing its opinion on the complaint and describing any steps it may have
taken to remedy the violation.
Any information received from the state is sent by the Committee to the
author of the complaint. The author is then given 6 weeks to reply to the
states information.
The Committee then looks at all the written information it has received
from the author of the complaint and the state and makes a decision on the
case. The Committee cannot ask the author of the complaint or representatives
of the state to appear before it to neither present their case, nor can it visit a
country or place to investigate a complaint. Its decision is based only on the
written information it has received from the author and the state concerned.
Step 3 The Committee adopts its views
-
7/28/2019 Human Right Manu
23/29
When the Committees investigations are completed the Committee can
take a decision (called views) on the case. In itsviews, which are made
public, the Committee can declare that the state concerned has violated the
ICCPR. It can take 1 to 2 years for the Committee to adopt its views on a
case.
How to submit an individual complaint:
Only a person claiming to be a victim of a violation of the ICCPR or
their representative. A representative must show that they have a close
connection with the victim, for example a close relative. The complaint must
allege a violation of one or more of the rights set out in articles 2-27 of theICCPR.
HUMAN RIGHTS UNDER INDIAN CONSTITUTION
b. ImplementationThe Constitution of India is distinctive for its commitment to provide
full political, economic, social, and cultural rights to all its citizens irrespective
of caste, creed, religion or race. The significance of Indias constitution is also
immense for its mixed policy adoption on liberal and socialistic norms of
governance. The idea of the welfare state enshrined in the spirit of the Indian
constitutions Preamble is another significant feature of Indian democracy.
Since its independence, many acts, laws, and amendments have been passed to
initiate, enhance and guarantee the peoples rights. Examples are the
Panchayati Raj system, Right to Information Act and Right to Education.
However, there are several resultant limitations concerning the level of
implementation of these rights. There continues to be violation of human
rights and non-implementation of socio-economic programs.
The Protection of Human Rights Act
-
7/28/2019 Human Right Manu
24/29
The Protection on Human Rights Act was passed in September 1993 by
the Indian Parliament. The Act was passed to provide an independent and
autonomous National Human Rights Commission, State Human Rights
Commission in States and Human Rights Courts for better protection of human
rights in India. The National Human Rights Commission is an autonomous
statutory body which main task is to protect and promote human rights in
India. The Commission is in line with the Paris Principles, a set of
international guidelines for national human rights institutions. It should act as
a national monitoring mechanism for human rights and serve the Indian public
as a means to be protected from human rights abuses. The Human Rights Act
defines human rights as rights relating to life, liberty, equality and dignity of
the individual guaranteed by the Constitution or embodied in the International
Covenants and enforceable by courts in India.
The enumerated and guaranteed fundamental rights would be no more
than paper tigers, if the right to enforce fundamental rights is not made a
fundamental right itself. It is the remedial fundamental right which gives teeth
to all fundamental rights. Article 32, which enshrines the remedial
fundamental right, has been described as the cornerstone of the democratic
edifice, as the protector and guarantor of fundamental rights, or as the qui
vive. It has been said repeatedly that it is the duty of the courts to guard the
remedial fundamental right and to protect it zealously and vigilantly. Article
32 guarantees the right to move the Supreme Court by appropriate
proceedings for the enforcement of the fundamental rights guaranteed by Part
III of the Constitution.2 Clauses (1) and (2) of Article 32 run as under:
(1)The right to move the Supreme Court by appropriate proceedings for theenforcement of the rights conferred by this part is guaranteed.
(2)The Supreme Court shall have power to issue directions or orders or writs,including writs in the nature of habeas corpus, mandamus, prohibition, and
certiorari which may be appropriate for the enforcement of any of the rights
conferred by this part.
-
7/28/2019 Human Right Manu
25/29
Article 32(4) lays down that this fundamental right cannot be suspended
except as otherwise provided by the constitution, Articles 358 and 359 provide
for the suspension of certain fundamental rights during the period of
promulgation of Emergency. Under Article 226 also the fundamental rights
can be enforced by moving the High Courts. Other rights can also be enforced
under Article 226.
c. EnforcementScope of A rticle 32 of the Constitution of India
The sole object of the Article 32 of the Constitution of India is the
enforcement of the fundamental rights guaranteed under Part III of the
Constitution of India. Whatever other remedies may be open to a person
aggrieved, he has no right to complain under Article 32 where no fundamental
right has been infringed. It follows that no question other than relating to a
fundamental right will be determined in a proceeding under the Article 32
including interlocutory reliefs. A writ under the said Article 32 would not lie
to enforce the Government policy or a Directive Principle.
Application under Article 32 and Article 226
Article 32 and Article 226 both deal with enforcement of right of the
citizen against the Government or Governmental Authorities. However, the
scope of Article 32 is limited to the extent of enforcement of the fundamental
rights stated in the Part III of the Constitution, whereas the scope of Article226 of the Constitution is much wider than Article 32 of the Constitution. The
High Court while exercising the Article 226 can give reliefs in case of quasi-
Judicial Tribunals and authorities or other acts by such lower authorities even
though the acts of such authorities do not infringe the fundamental rights.
The Supreme Court is competent to give relief under Article 32 against
any authority within the territory of India. The power of High Court under
Article 226 is confined to its territorial Jurisdiction, so that even where
-
7/28/2019 Human Right Manu
26/29
fundamental rights have been infringed, the High Court cannot grant reliefs
against an authority located outside its territorial jurisdiction except in certain
exceptional cases, namely where the causes of action arises, in whole or in
part, within territorial jurisdiction of that Court.
Amplitude of Su preme Court's jurisdiction under Article 32
The powers given to the Supreme Court under Article 32, for the
enforcement of fundamental rights, are not confined to issuing prerogative
writs only, and are not necessarily circumscribed by the conditions which limit
the exercise of the prerogative writs. The said Article is wide enough to
consider even claims for compensation arising from the violation of
fundamental rights. The range of judicial review recognised in the superior
judiciary of India is, perhaps, the widest and the most extensive known to the
world of law. The power extends to the examining the validity to even an
amendment to the Constitution.
-
7/28/2019 Human Right Manu
27/29
CONCLUSION
It is at the national level that the ICCPR has exerted its greatest impact.
When today anywhere in the world a national constitution is framed, the
ICCPR serves as the natural yardstick for the drafting of a section on
fundamental rights. In most countries, the ICCPR has been made part and
parcel of the national legal order although there is no general rule of
international law that would enjoin States to embrace a specific method of
implementation. Thus, the United States has made a declaration according to
which the ICCPR is not self-executing within its domestic legal system. In
some countries, administrative authorities and the courts are specifically
enjoined to follow the applicable international guarantees when interpretingthe national constitution (e.g., article 10, paragraph 2 of the Spanish
Constitution). In other countries, the ICCPR has even been given the legal
force of a provision of constitutional or quasi-constitutional rank (e.g., article
15, paragraph 4, of the Constitution of the Russian Federation). These legal
techniques are not automatically successful, since, as a rule, national judges
are not very familiar with the guarantees laid down in international human
rights instruments and are more often than not reluctant to accord them
precedence over the applicable national laws and regulations.
The Human Right Committee has also been praised for seriousness,
independence, courage and dedication. The Committee has emphasized that it
should be mindful of judicial, diplomatic, fact-finding and conciliation
elements in its functions.
-
7/28/2019 Human Right Manu
28/29
Under the Optional Protocol to the International Convention Civil and
Political Rights, a State Party to the ICCPR that becomes a Party to the
Protocol recognizes the competence of the Human Rights Committee to
receive, under certain conditions, and consider, communications from
individuals subject to its jurisdiction, who claim to be victims of a violation by
that State Party of any of the rights set forth in the Covenant.
The Human Rights Committee performs the vital function of monitoring
the enjoyment of the rights set out in the Covenant, a legally binding
international treaty. Whether in its consideration of States parties reports, its
adoption of general comments, or its examination of complaints by individuals
or States alleging violations of the Covenant, the Committee is the pre-eminent
interpreter of the meaning of the International Covenant on Civil and Political
Rights. In doing so, it seeks to give a full and generous interpretation to the
meaning of the Covenants provisions, consistent with its character as an
instrument guaranteeing fundamental rights and freedoms. The Committees
members do not simply look at the formal legal position applicable in a
particular State or case, but rather go deeper, to the practical realities on the
ground in the States with which it is concerned, and issue findings with a view
to achieving positive change. Indeed, compliance by a State with the
Committees Views is evidence of a States good faith attitude towards its
Covenant obligations. Over the years, the Committees work has resulted in
numerous changes of law, policy and practice, both at the general national
level and in the context of individual cases. In a direct sense, therefore, the
Committees discharge of the monitoring functions entrusted to it under the
Covenant has improved the lives of individuals in countries in all parts of the
world. It is in this spirit that the Committee will continue to make its work
relevant and applicable to all States parties, and to strive for the enjoyment of
all civil and political rights guaranteed by the Covenant, in full and without
discrimination, by all people.
-
7/28/2019 Human Right Manu
29/29
.