UDHR AND INTERNATIONAL COVENANTS

Introduction

United Nations (UN) on December 16, 1966 adopted two covenants in its Resolution 2200 A (XXI):
The International Covenant on Civil and Political rights (Hereinafter, ICCPR) and the International
Covenant on Economic Social and Cultural Rights (Hereinafter, ICESCR), these were made in
pursuance of the Universal Declaration of Human Rights. Post the 1948 Universal Declaration of
Human Rights, it gave the work to a committee to prepare a Covenant for the enforcement of such
rights. This also led to debates between the capitalist and communist states, with countries such as
the USA pressing the need for Liberty Rights, whereas other communist states insisting on economic,
social and cultural rights. The deadlock in the interests between these led the UN to direct the
committee to make two different Covenants.

International Covenant on Civil and Political Rights

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political-rights

Overview of the International Covenant on Civil and Political Rights

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

The implementation of the ICCPR is overseen by the United Nations Human Rights Committee, which
reviews reports of parties on how effectively fundamental rights are being implemented. The parties
to the ICCPR reports within a year after acceding to the Covenant, and then whenever the
committee requires. The Committee holds its sessions in Geneva, Switzerland, thrice per year.

The ICCPR had its origins in the same type of process that led to the Universal Declaration of Human
Rights. Early on in the process, the document was split into a declaration setting forth general
principles of human rights, and a convention or covenant containing binding commitments. The
former evolved into the UDHR and was adopted on 10 December 1948.

PURPOSE:

The ICCPR recognizes the inherent dignity of each individual and undertakes to promote conditions
within states to allow the enjoyment of civil and political rights. Countries that have ratified the
Covenant are obligated “to protect and preserve basic human rights… [and] “compel[ed] to take
administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty
and to provide an effective remedy.” There are currently 74 signatories and 168 parties to the ICCPR.

CONTENT:

The unifying themes and values of the ICCPR are found in Articles 2 and 3 and are based on the
notion of non-discrimination. Article 2 ensures that rights recognized in the ICCPR will be respected
and be available to everyone within the territory of those states who have ratified the Covenant
(State Party). Article 3 ensures the equal right of both men and women to the enjoyment of all civil
and political rights set out in the ICCPR.

Articles of the International Covenant on Civil and Political Rights

The ICCPR contains about 53 articles divided into 6 parts. Their details are as follows:
 Structure of International Covenant on Civil and Political Rights

LIMITATIONS:

Article 4 of ICCPR allows for certain circumstances for States Parties to derogate from their
responsibilities under the Covenant, such as during times of public emergencies. However, State
Parties may not derogate from Articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18.
OPTIONAL PROTOCOLS:

There are two optional protocols to the ICCPR which gives additional human rights protections.

First Optional Protocol:

This protocol allows victims claiming to be victims of human rights violations to be heard. The
Human Rights Committee (Committee), which is established by the Covenant, has the jurisdiction to
receive, consider and hear communications from victims. The first Optional Protocol came into force
with the Covenant. There are currently 35 signatories and 115 parties to this protocol.

Second Optional Protocol:

This protocol aims to abolish the death penalty. It was entered into force on July 11, 1991 and it
currently has 37 signatories and 81 parties.

ENFORCEMENT

Article 2(2) of ICCPR provides that State Parties are to take the “necessary steps…. to adopt such
laws or other measures as may be necessary to give effect to the rights recognized in the present
Covenant.” Countries that have ratified the ICCPR must takes steps in their own jurisdictions to
recognize the acceptance of this international covenant because, in “international law, a signature
does not usually bind a State. The treaty is usually subject to a future ratification, acceptance,
approval or accession.” In Canada, the accession process involves a series of reviews and
consultation by the federal government and followed by a tabling of the treaty in Parliament.

In addition to State Parties’ formally adopting and recognizing the ICCPR in their jurisdiction, Article
28 of ICCPR provides for a Human Rights Committee (Committee) to be established for monitoring
the State Parties’ implementation of the Covenant. State Parties are required to submit reports to
the Committee for review, on measures used to adopt and give effect to the rights enshrined in the
ICCPR.

As mentioned above, the First Optional Protocol allows victims of human rights violation to be heard
by the Committee. However the ICCPR also provides in Article 41 that a State Party who claims
another State Party is not fulfilling its obligations to implement ICCPR, may make written
submissions to the Committee for consideration. Also, non-governmental organizations (NGOs) may
also participate in ensuring that values under the ICCPR are protected by submitting ‘shadow
reports’ and highlight areas for consideration by the Committee.

INDIA AND ICCPR

Many of the civil and political rights contained in the International Covenant on Political and Civil
Rights, 1966 (ICCPR) are also contained in the Part III of the Constitution of India. India has signed
and ratified the ICCPR.

In the case of Jolly George Varghese & Anr. v. Bank of Cochin, J. Krishna Iyer observed that though a
provision is present in ICCPR but not in Indian Constitution, does not make the covenant an
enforceable part of ‘Corpus Juris’ – (Body of Law) in India.
Provisions of ICCPR along with corresponding provision of Constitution of India are as follows:

Some of the rights which were not earlier included in Fundamental Rights but were available in
ICCPR. They were considered as Fundamental Rights by various judicial pronouncements. Some of
them are Right to fair trial, Right to privacy, Right to legal aid, Right to travel abroad.
International Covenant on Economic, Social and Cultural Rights

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economic-social-and-cultural-rights

At a glance

 Treaty: International Covenant on Economic, Social and Cultural Rights (ICESCR)

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the
United Nations General Assembly (Resolution 2200 A (XXI)) on 16 December 1966. As one of two
international treaties that make the ‘International Bill of Human Rights’ (along with the Universal
Declaration of Human Rights), the ICESCR provides the legal framework to protect and preserve the
most basic economic, social and cultural rights, including rights relating to work in just and
favourable conditions, to social protection, to an adequate standard of living, to the highest
attainable standards of physical and mental health, to education and to enjoyment of the benefits of
cultural freedom and scientific progress.
Key International Instruments on ESCR and the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (ICESCR):

Various international instruments recognize economic, social and cultural rights as integral parts of
the human rights framework. The first comprehensive international instrument encompassing both
sets of rights i.e., civil and political rights and the economic, social and cultural rights is the Universal
Declaration of Human Rights (UDHR). The International Covenant on Economic, Social and Cultural
Rights (ICESCR) remains the principal instrument on economic, social and cultural rights. It
recognizes the right to self determination; equality for men and women; the right to work and
favourable conditions of work; the right to form and join trade unions; the right to an adequate
standard of living including adequate food, clothing and housing; the right to health and healthcare;
the protection of the family; and the right to social security. As of November 2005, 149 countries
have ratified the Covenant.

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is a
side-agreement to the Covenant which allows its parties to recognise the competence of the
Committee on Economic Social and Cultural Rights to consider complaints from individuals.

Other key international instruments include the Convention on the Elimination of All Forms of Racial
Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination against
Women, 1979 (CEDAW) and the Convention on the Rights of the Child, 1989 (CRC), Limburg
Principles and the Maastricht Guidelines, Vienna World Conference on Human Rights Declaration
and Plan of Action and Conventions of the International Labour Organization.

General Principles of ESCR and State Obligations to Promote, Protect and Fulfill:

State parties are bound to ensure minimum human rights regardless of their resource constraints.
For ESC rights, minimum core requirements include available foodstuffs for the population, essential
primary healthcare, basic shelter and housing, and the most basic form of education. The Committee
on Economic, Social and Cultural Rights elaborated on state obligations under General Comment 3:
The Nature of State Parties Obligations

How do states fulfill their minimum requirements?

 Respect- the obligation to respect requires governments to refrain from interfering directly
or indirectly with the enjoyment of ESCR
 Protect- the obligation to protect requires governments to prevent third parties such as
corporations, from interfering in any way with the enjoyment of ESCR
 Fulfill- the obligation to fulfill requires governments to adopt the necessary measures to
achieve the full realization of ESCR.

Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-
ICESCR)

Entered into force: 5 May 2013

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-
ICESCR) was adopted by the United Nations General Assembly (Resolution A/RES/63/117) on 10
December 2008. It establishes mechanisms for bringing violations of economic, social and cultural
rights before the UN Committee on Economic, Social and Cultural Rights, specifically: an individual
complaints mechanism, an inter-state complaint mechanism and an inquiry procedure.
The Committee on Economic, Social and Cultural Rights (CESCR)

The Committee on Economic, Social and Cultural Rights (CESCR) is the independent expert body
appointed to oversee state parties’ implementation of the ICESCR. It consists of 18 independent
experts who are nationals of state parties to ICESCR, elected by secret ballot and serving four-year
terms. CESCR meets twice annually.

General Comments

In its General Comments, the Committee has addressed gender-based violence in relation to specific
provisions in the ICESCR and state responsibility to eliminate it.

 General Comment No. 22: on the Right to sexual and reproductive health 2016
 General Comment 20: Non-discrimination in economic, social and cultural rights 2 July 2009
 General comment 16: The equal right of men and women to the enjoyment of all economic,
social and cultural rights 11 August 2005

INDIA AND ICESCR

The ICESCR is a multilateral treaty which mainly focuses on social and cultural rights like food, health,
education, shelter etc. India ratified this covenant on April 10, 1979. Most of the provisions in this
covenant are found in Part IV (DPSPs) of the Indian Constitution.

The Indian Constitution recognizes economic, social and cultural rights as Directive Principles of
State Policy which, unlike the guarantee of civil and political rights in the Indian Constitution, are not
directly enforceable in the courts, but are intended to serve as guidance for government policy.

The Indian law of economic, social and cultural rights has been developed incrementally by the
courts, drawing on the Directive Principles as aids to interpretation of the civil and political rights
which are justiciable under the Constitution, to elevate the status of the Directive Principles as
constitutional rights. In particular, the Indian Supreme Court has adopted an expansive
interpretation of the constitutional right to life, based on principles of human dignity, to protect
certain economic and social rights, including the right to adequate nutrition, clothing and shelter,
the right to medical facilities, the right to earn a livelihood, and environmental rights.

In the Olga Tellis case, the right to livelihood meant that there was an obligation on the state to
afford procedural fair hearing rights to a group of pavement dwellers whose livelihoods were
threatened by their eviction.

Beyond procedural rights, the Supreme Court has held in Paschim Banga Khet Mazdoor Sabha v.
State of West Bengal that the State's obligations to protect economic and social rights may include
obligations to provide additional resources, for example to ensure essential healthcare services.

Similarly, the right to life and personal liberty, in Article 21 of the Constitution, has also been applied
by the Supreme Court, in conjunction with Directive Principles relating to education, health, and
conditions of employment, to address the working conditions of child labourers in the carpet
industry.

Thus, ESC rights are no less important than fundamental rights in the constitutional scheme. It need
hardly be added that the duty cast on the State under Articles 47 and 48-A in particular of Part IV of
the Constitution is to be read as conferring a corresponding right on the citizens and therefore, the
right under Article 21 at least must be read to include the same within its ambit. The ESC rights that
the DPSP symbolize can demonstrably be read as forming part of an enforceable regime of
fundamental rights. Therefore it is crucial for the State to implement this constitutional mandate.
The State has to be constantly reminded of its obligations and duties. This is the Indian Experience.

Provisions of ICESCR along with corresponding provision of Constitution of India are as follows:

Conclusion

Human Rights are the basic rights which form the essential part of his/her development as human
being. Constitution acts as a protector of those basic rights as Fundamental Rights and DPSPs. More
emphasis has been given to the fundamental rights and they are directly enforceable in the court of
law. From a deep study of the Part III and Part IV of the Indian Constitution, it is easily evident that
almost all of the rights provided in UDHR (Universal Declaration on Human Rights) are covered in
these two parts.

Judiciary has also taken great steps such as relaxing rules of ‘locus standi’ and now any other person
in place of the ones affected can approach Court. The apex court has interpreted the Fundamental
Rights available to a citizen and now rights like right to privacy, right to clear environment, right to
free legal aid, right to fair trail etc. also find place in the Fundamental Rights.