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Subject: Law and Justice in a Globalizing World

LL.M Batch 2018-2019

A Project Report

United nations and Human Rights

Submitted by

Nushrat Khan (A022)

Under the Guidance of

PROF. SUNIL GEORGE

Specialization: Corporate Law

Date : 17/09/2018

Signature :
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INDEX

SR.NO PARTICULARS PAGE NO.


1. LIST OF ABBREVIATIONS 3
2. CASES 4
3. INTRODUCTION 5-9
4. LITERATURE REVIEW 10-12
5. PRESENT SITUATION 13-16
6. LEGAL ANALYSIS 16-19
7. ROLE OF JUDICIARY 20-26
8. HYPOTHESIS 27-28
9. CASES 28-31
10. CONCLUSION AND WAY FORWARD/ FUTURE
SCOPE OF RESEARCH 32-33
11 BIBLOGRAPHY 34
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LIST OF ABBREVIATIONS

UN- United Nations

UNHCR-Office of the United Nations High Commissioner for Refugees

Rights-Commission on Human Rights (Department of Economic and Social Affairs)

UDHR- Universal declaration of human Rights

ICESCR- International Covenant on Economic, Social and Cultural Rights

CEDAW: UN Convention on the Elimination of Discrimination against Women

ICCPR: International Covenant on Civil and Political Rights

ICESCR: International Covenant on Economic, Social and Cultural Rights

NHRC- National human Rights Commission

CHR- Commission on Human Rights

Art- Article

CERD- Committee on the Elimination of Racial Discrimination

CESCR- Committee on the Economic, Social and cultural Rights

ICERD-International Covenant on Elimination of All forms of Racial Discrimination

UNESCO- The United Nations Educational, Scientific and Cultural Organization


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UNICEF- United nations Children’s fund

CASES

Kulbhushan Jadhav’s case

Qatar v/s UAE

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.

Navtej Singh Johar v. Union of India section 377

Vishakha and others v State of Rajasthan

Mohd Ahmed Khan v. Shah Bano begum, 1985( Right to Maintenance)

MC Mehta v. Union of India, 1986

Shreya singhal v. Union of India, 2015 Section 66A of IT Act


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INTRODUCTION

UNITED NATIONS AND HUMAN RIGHTS

The United Nations (UN) is an intergovernmental organization tasked to promote


international co-operation and to create and maintain international order. A replacement
for the ineffective League of Nations, the organization was established on 24 October
1945 after World War II with the aim of preventing another such conflict. At its founding,
the UN had 51 member states; there are now 193. The headquarters of the UN is in
Manhattan, New York City, and is subject to extraterritoriality. Further main offices are
situated in Geneva, Nairobi, and Vienna. The organization is financed by assessed and
voluntary contributions from its member states. Its objectives include maintaining
international peace and security, promoting human rights, fostering social and economic
development, protecting the environment, and providing humanitarian aid in cases of
famine, natural disaster, and armed conflict. The UN is the largest, most familiar, most
internationally represented and most powerful intergovernmental organization in the
world.

The UN has six principal organs: the General Assembly (the main deliberative
assembly); the Security Council (for deciding certain resolutions for peace and security);
the Economic and Social Council (ECOSOC; for promoting international economic and
social co-operation and development); the Secretariat (for providing studies,
information, and facilities needed by the UN); the International Court of Justice (the
primary judicial organ); and the UN Trusteeship Council (inactive since 1994). UN
System agencies include the World Bank Group, the World Health Organization, the
World Food Programmer, UNESCO, and UNICEF. The UN's most prominent officer is
the Secretary-General, an office held by Portuguese politician and diplomat António
Guterres since 2017.
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OBJECTIVES OF UNITED NATIONS AND HUMAN RIGHTS

Peacekeeping and security

The UN, after approval by the Security Council, sends peacekeepers to regions
where armed conflict has recently ceased or paused to enforce the terms of
peace agreements and to discourage combatants from resuming hostilities.
Since the UN does not maintain its own military, peacekeeping forces are
voluntarily provided by member states. These soldiers are sometimes nicknamed
"Blue Helmets" for their distinctive gear. The peacekeeping force as a whole
received the Nobel Peace Prize in 1988.

Human rights

One of the UN's primary purposes is "promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race,
sex, language, or religion", and member states pledge to undertake "joint and
separate action" to protect these rights.
In 1948, the General Assembly adopted a Universal Declaration of Human
Rights, drafted by a committee headed by American diplomat and activist
Eleanor Roosevelt, and including the French lawyer René Cassin. The document
proclaims basic civil, political, and economic rights common to all human beings,
though its effectiveness towards achieving these ends has been disputed since
its drafting.The Declaration serves as a "common standard of achievement for all
peoples and all nations" rather than a legally binding document, but it has
become the basis of two binding treaties, the 1966 International Covenant on
Civil and Political Rights and International Covenant on Economic, Social and
Cultural Rights.
In 1979, the General Assembly adopted the Convention on the Elimination of All
Forms of Discrimination against Women, followed by the Convention on the
Rights of the Child in 1989.
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Economic development and humanitarian assistance

Another primary purpose of the UN is "to achieve international co-operation in


solving international problems of an economic, social, cultural, or humanitarian
character". Numerous bodies have been created to work towards this goal,
primarily under the authority of the General Assembly and ECOSOC.

HUMAN RIGHTS

One of the UN's primary purposes is "promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as to race, sex, language,
or religion", and member states pledge to undertake "joint and separate action" to
protect these rights.

In 1948, the General Assembly adopted a Universal Declaration of Human Rights,


drafted by a committee headed by American diplomat and activist Eleanor Roosevelt,
and including the French lawyer René Cassin. The document proclaims basic civil,
political, and economic rights common to all human beings, though its effectiveness
towards achieving these ends has been disputed since its drafting.The Declaration
serves as a "common standard of achievement for all peoples and all nations" rather
than a legally binding document, but it has become the basis of two binding treaties, the
1966 International Covenant on Civil and Political Rights and International Covenant on
Economic, Social and Cultural Rights.

UNIVERSAL DECLARATION OF HUMAN RIGHTS(UDHR)

The Universal Declaration of Human Rights (UDHR) is a historic document that was
adopted by the United Nations General Assembly at its third session on 10 December
1948.

The Declaration consists of 30 articles affirming an individual's rights which, although


not legally binding in themselves, have been elaborated in subsequent international
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treaties, economic transfers, regional human rights instruments, national constitutions,


and other laws.

The Declaration consists of a preamble and thirty articles:-

The preamble sets out the historical and social causes that led to the necessity of
drafting the Declaration.

Articles 1–2 established the basic concepts of dignity, liberty, equality, and brotherhood.

Articles 3–11 established other individual rights, such as the right to life and the
prohibition of slavery.

Articles 6–11 refer to the fundamental legality of human rights with specific remedies
cited for their defence when violated.

Articles 12–17 established the rights of the individual towards the community (including
such things as freedom of movement).

Articles 18–21 sanctioned the so-called "constitutional liberties", and with spiritual,
public, and political freedoms, such as freedom of thought, opinion, religion and
conscience, word, and peaceful association of the individual.

Articles 22–27 sanctioned an individual's economic, social and cultural rights, including
healthcare. Article 25 states: "Everyone has the right to a standard of living adequate for
the health and well-being of himself and of his family, including food, clothing, housing
and medical care and necessary social services." It also makes additional
accommodations for security in case of physical debilitation or disability, and makes
special mention of care given to those in motherhood or childhood.[5]

Articles 28–30 established the general ways of using these rights, the areas in which
these rights of the individual can not be applied, and that they can not be overcome
against the individual.
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International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty
adopted by the United Nations General Assembly with resolution 2200A (XXI) on 16
December 1966, and in force from 23 March 1976 in accordance with Article 49 of the
covenant. The covenant commits its parties to respect the civil and political rights of
individuals, including the right to life, freedom of religion, freedom of speech, freedom of
assembly, electoral rights and rights to due process and a fair trial. As of August 2017,
the Covenant has 172 parties.

International Covenant on Economic, Social and Cultural


Rights

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a


multilateral treaty adopted by the United Nations General Assembly on 16 December
1966, and came in force from 3 January 1976. It commits its parties to work toward the
granting of economic, social, and cultural rights (ESCR) to the Non-Self-Governing and
Trust Territories and individuals, including labour rights and the right to health, the right
to education, and the right to an adequate standard of living. As of January 2018, the
Covenant has 166 parties.

Convention on the Elimination of All Forms of Discrimination


Against Women

The Convention on the Elimination of all Forms of Discrimination Against Women


(CEDAW) is an international treaty adopted in 1979 by the United Nations General
Assembly. Described as an international bill of rights for women, it was instituted on 3
September 1981 and has been ratified by 189 states.
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LITERATURE REVIEW

ON UNITED NATIONS AND HUMAN RIGHTS

I am referring to an article published in the New York times by Somini Sengupta on Sept
18 2016 on The United nations explained: Its purpose, powers and problems.

The author believes that United Nations has struggled to live up to the promise of his
founders: making the world better and peaceful place.

As the author puts light on the institution and its existence the United nations was led by
Most powerful countries at that time like US, Britain, Soviet Union, China and the
African countries and Asia was under dominance of colonial powers. This puts the
author in view that United nations have a narrow approach towards the 193 countries
which are there in the United nations and powerful ones and not ordinary citizens.

This partiality has led to the not fulfillment of the first two pledges of the charter to end
scourge of war and regain fulfillment in the fundamental Human rights.

The author throws light on the Universal declaration of human rights which include
right to not be enslaved, the right to free expression and the right to seek from other
countries asylum from persecution. However, many of the rights expressed — to
education, to equal pay for equal work, to nationality — remain unrealized.

The General Assembly have limited powers and nothing its nothing but a glorified
gabfest as suggested by the author as mentioning the critics. In principle, nations small
and large, rich and poor, have equal voice in the Assembly, with each country getting
one vote. But the genuine power resides elsewhere.

The most important and controversial part of the article is the Security council part
which the author is making a point that , United nations is for the P5 only the US,
Britain, Soviet Union, China, France and they have permanent seat in the security
council and others have a 2 years term . And countries like India , Japan, Germany
don’t have a permanent seat and its blocked every time for a permanent seat in the
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security council. The problem of peace keeping in which the United nations have failed
and the author has given examples of North korea which violates the UN guidelines
more than often of Nuclear tests and the Security council has failed to put a lid on it.

The author has raised questions on the future of the UN will it be able to maintain peace
and security in the world and peaceful world and can the security council take action
against the countries which violates Humanitarian laws.

The second part of my literature review of Human rights I am referring to IOSR Journal
Of Humanities And Social Science (IOSR-JHSS) Volume 22, Issue 6, Ver. 9 (June.
2017) PP 01-06 e-ISSN: 2279-0837, p-ISSN: 2279-0845. www.iosrjournals.org

History and development of Human rights in India by Ms. Nidhi Madan

The author has made a research on the Human rights and its development from the rig
veda age to the modern times of 21st century and has highlighted the growth and
changes which has taken place from the medieval age to the current stage. The
introduction part and the meaning section defines what is Human rights and its
importance which the author tries to explain in the first two thing and throws light on the
stages of the Human rights in ancient times, medieval and modern times and Human
rights in the Indian Constitution.

The meaning of Human rights is given by with the help of Human rights in the words of
A.A. said, “ are concerned with the dignity of the individual, the level of self-esteem that
secures personal identity & promote human community”. According to Scott Davidson,
“The concept of human rights is closely connected with the protection of individuals from
the exercise of State, Government or authority in certain area of their lives, it is also
directed towards creation of societal condition by the state in which individual are to
develop their fullest potential”.Thus, from the above cited definitions, it has been seen
that human rights are the essential part for the every human in order to live his/her life
to the fullest.

Then comes the stages in which the author explains growth in the medieval time how it
has evolved. The author suggests that the language of human right is the product of
European countries but the concept of human rights is as old as the Indian culture. The
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humans expressed their concern towards human rights and fundamental freedom for all
since the Vedic age.

In ancient India, the trace of the concept of human rights can be paved back from the
Vedas period of the fifteen century B.C. There are wide range of stories,
pronouncements found which showed the way to the concept of human rights.In Vedas,
human right is signified with the concept of equality. The Charter of equality of all as
defined in the Vedas in the following words-No one is superior inferior all should strive
for the interest of all and should progress collectively. the importance of human rights
were well supported by Jainism, Buddhism and other minority religious group.These
contentions are made by the author and some what is very significant to the Human
Rights of UDHR.

The author makes the detailed analysis of the modern history of the Human rights she
has took the Constitution of the Indian bill 1895 and Mrs. Besant ‘s Common wealth of
1925. And explained the rights available to the citizens at that time.

The Human rights enshrined in the Indian constitution is the last part of the author in the
journal which is similar to the constitution of India which gives us fundamental rights
under different articles starting from Article 14 to Article 32. The main views and
assumptions made by the author that the history of the concept of human rights is from
the advent of human culture which grow in the Vedic period, passed through the
medieval and modern times and reached its due importance with the framing of the
constitution of India in which due importance has been given to human rights in context
to fundamental rights.
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PRESENT SITUATION

The United Nations is making a difference all over the world and in every sector
pertaining to individual, society, war torn countries and you name it. The different ways
in which the UN is changing the current scenario’s in various countries are follows.

1. Maintaining Peace and Security

By sending 69 peacekeeping and observer missions to the world’s trouble spots over
the past six decades, the United Nations has been able to restore calm, allowing many
countries to recover from conflict. There are now 16 peacekeeping operations around
the world, carried out by some 125,000 brave men and women from 120 countries who
go where others can’t or won’t go.

2. Preventing Nuclear Proliferation

For over five decades, the International Atomic Energy Agency (IAEA) has served as
the world’s nuclear inspector. IAEA experts work to verify that safeguarded nuclear
material is used only for peaceful purposes. To date, the Agency has safeguards
agreements with more than 180 States.

3. Combating Terrorism

Governments coordinate their counter-terrorism efforts through the United Nations. In


2006, they adopted at the UN the first-ever global strategy to counter terrorism. UN
agencies and programmes have helped countries to put in practice the global strategy,
providing legal assistance and promoting international cooperation against terrorism.
The UN has also put in place a legal framework to combat terrorism. Fourteen global
agreements have been negotiated under UN auspices, including treaties against
hostage-taking, aircraft hijacking, terrorist bombings, terrorism financing and nuclear
terrorism.
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4. Alleviating Rural Poverty

The International Fund for Agricultural Development (IFAD) provides low-interest loans
and grants to very poor rural people. Since 1978, IFAD has invested more than $15
billion, helping more than 430 million women and men to grow and sell more food,
increase their incomes and provide for their families. Currently IFAD supports more than
240 programmes and projects in 147 countries.

5. Promoting Women's Well-being

UN Women is the UN organization dedicated to gender equality and the empowerment


of women. A global champion for women and girls, UN Women seeks to accelerate
progress on meeting their needs worldwide. UN Women supports countries as they set
global standards for achieving gender equality, and works with governments and civil
society to design laws, policies, programmes and services needed to implement these
standards. It stands behind women’s equal participation in all aspects of life, focusing
on increasing women’s leadership and participation; ending violence against women;
engaging women in all aspects of peace and security; enhancing women’s economic
empowerment; and making gender equality central to national development planning
and budgeting.

6. Promoting Human Rights

Since the General Assembly adopted the Universal Declaration of Human Rights in
1948, the United Nations has helped to enact dozens of legally binding agreements on
political, civil, economic, social and cultural rights. By investigating individual
complaints, the UN human rights bodies have focused world attention on cases of
torture, disappearance, arbitrary detention and other violations, and have generated
international pressure on Governments to improve their human rights records.

7. Promoting Women's Rights

A long-term objective of the United Nations has been to improve the lives of women and
empower them to have greater control over their lives. The UN organized the first-ever
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World Conference on Women (Mexico City, 1975), which, together with two World
Conferences during the UN Decade for Women (1976-1985) and the World Conference
in Beijing (1995), set the agenda for advancing women's rights and promoting gender
equality. The 1979 UN Convention on the Elimination of All Forms of Discrimination
against Women, ratified by 189 countries, has helped to promote the rights of women
worldwide.

8. Promoting the Rights of Persons with Disabilities

The United Nations has been at the forefront of the fight for full equality for persons with
disabilities, promoting their participation in social, economic and political life. The UN
has shown that persons with disabilities are a resource for society, and has negotiated
the first-ever treaty to advance their rights and dignity worldwide: the 2006 Convention
on the Rights of Persons with Disabilities, which has been ratified by more than 150
countries.

9. Improving the Plight of Indigenous People

The United Nations has brought to the fore injustices against the 370 million to 500
million indigenous people who live in some 90 countries and who are among the most
disadvantaged and vulnerable groups in the world. The 16-member Permanent Forum
on Indigenous Issues works to improve the situation of indigenous peoples all over the
world in development, culture, human rights, the environment, education and health.
The Expert Mechanism on the Rights of Indigenous Peoples makes proposals on
improving indigenous rights.

10. Assisting refugees

More than 60 million refugees fleeing persecution, violence and war have received aid
from the Office of the UN High Commissioner for Refugees (UNHCR) since 1951, in a
continuing effort that often involves other agencies. UNHCR seeks long-term or
"durable" solutions by helping refugees repatriate to their homelands, if conditions
warrant, or by helping them to integrate in their countries of asylum or to resettle in third
countries. There are more than 42 million refugees, asylum-seekers and internally
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displaced persons, mostly women and children, who are receiving food, shelter, medical
aid, education and repatriation assistance from the UN.

LEGAL ANALYSIS

What is human rights?

In order to live with dignity certain basic rights and freedoms are necessary, which all
Human beings are entitled to, these basic rights are called Human Rights

Human rights demand recognition and respect for the inherent dignity to ensure that
everyone is protected against abuses which undermine their dignity, and give the
opportunities they need to realize their full potential, free from discrimination.

Human rights include civil and political rights, such as:

# The right to freedom of expression

# The right to freedom of religion or conscience

# The right to property

# The right to freedom of assembly

# The right to privacy

# The right to vote.

Human rights also cover economic and social rights, such as:

# The right to an adequate standard of living

# The right to adequate food, housing, water and sanitation

# The rights you have at work

# The right to education.

Human rights belong to everyone, everywhere, regardless of nationality, sexuality,


gender, race, religion or age. The foundation of modern human rights is the Universal
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Declaration of Human Rights (UDHR). The 30 articles of the Declaration were adopted
in 1948 by the United Nations General Assembly, and over time these have been
integrated into national laws and international treaties. The core values of the UDHR -
human dignity, fairness, equality, non-discrimination - apply to everyone, everywhere.

Human Rights and the Constitution of India

The constitution of India is known as one of the most right-based constitutions in the
world. It was drafted around the same time when the Universal Declaration of Human
Rights by the United Nations came into force (1948). Indian constitution provides the
spirit of human rights in its preamble and the sections on Fundamental rights and
Directive Principle of State Policy.

The Indian constitution is based on the theory that guided India’s struggle against British
colonialism, which was marked by the violation of civil, political, social, economic and
cultural rights of the people. Therefore, after independence the framers of the
constitution provided some fundamental rights to the citizens which are enshrined in the
part III of the constitution. These fundamental rights are defined as basic human
freedom for a proper and harmonious development of personality of every Indian
citizen. These fundamental rights apply to all Indian citizens, irrespective of caste,
creed, colour, sex, race or place of birth. They are also enforceable by the courts,
subject to certain restrictions.The rights have their origins in many sources including
England’s Bill of Rights, the United States Bill of Rights and France’s declaration of the
Rights of Man.

The Constitution as said above provides some Fundamental Rights to its citizens. The
Fundamental Rights are included in Part III of the Constitution (Articles 12-35)

There are six fundamental rights enshrined in the Indian Constitution. Right to equality
is included in Articles 14. 15, 16, 17 and 18 of the constitution. It is the principal
foundation of all other rights and liberties. Article 14 describes that all citizens of India
shall be equally protected by the laws of the country. Article 15 of the constitution
provides that no individual shall be discriminated on the basis of caste, colour, language
etc. However, the State may make any special provision for women, children, and for
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socially or educationally backward class or scheduled castes or scheduled tribes. Article


16 of the constitution defines that the State cannot discriminate against anyone in the
matters of employment However, there are some exceptions, the parliament has the
right to enact law/s describing that certain jobs can only be filled by the applicant/s who
are domiciled in the area for the post that require knowledge and the language of the
locality or the area. The state may also reserve posts for members of educationally and
economically backward classes, scheduled castes and tribes for their adequate
representation in the jobs. Article 17 abolishes the practice of untouchability. Article 18
of the constitution prohibits state from conferring any titles. This means that the citizen
of India cannot accept titles from a foreign state. But Military and academic distinctions
can be conferred on the citizens of India and also the awards of Bharat Ratna and
Padma Vibhushan cannot be used by the recipient as a title.

Except the right to equality, the Constitution of India provides the right to freedom, given
in articles 19, 20, 21 and 22. Freedom of speech and expression (it includes the
freedom of press), freedom of assemble peacefully without arms, freedom to form
associations or unions, freedom to move freely throughout the territory of India, freedom
to reside and settle in any part of the territory of India, freedom to practice any
profession or to carry on any occupation, trade or business are some of the freedoms
which are provided to Indian citizen.

However, at the same time these freedoms can be restricted in the interests of public
order, morality and the sovereignty and integrity of India. Freedom of speech and
expression, generally interpreted to include freedom of the press, can be limited "in the
interests of the sovereignty and integrity of India, the security of the State, friendly
relations with foreign States, public order, decency or morality, or in relation to contempt
of court, defamation or incitement to an offence"

The constitution also guarantees the right to life and personal liberty under article 20
and 21. Article 20 states that no individual can be awarded punishment which is more
than what the law of land prescribes at that time. This legal axiom is based on the
principle that any criminal law cannot be made retrospective. Therefore, the essential
condition for an act to become a crime or offence is that it should have been an offence
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legally at the time of committing it. It also provides that no person can be convicted
twice for the same offence. Article 21 declares that no citizen can be denied his/her life
and liberty except by law. Therefore, an individual’s personal liberty can only be
disputed if the person has committed a crime. This right does not include the right to die
thus suicide or an attempt thereof is an offence.

Article 23 and 24 provides the right against exploitation. It has two provisions, one
being, the abolition of trafficking in human beings and Begar (forced labor) and other the
abolition of employment of children below the age of 14 years in dangerous jobs like
factories and mines.

Articles 25, 26, 27 and 28 of the constitution cover the right to freedom of religion. The
objective of this right is to maintain secular nature of Indian state. Thus all religions are
considered equal before the state and no religion shall be given preference over other.
Citizens are free to preach, practice and propagate any religion of their choice. It also
includes the freedom not to practice a religion and to propagate such views. However,
the state can restrict certain practices of religions in the interests of public order,
morality and health, say for example the wearing and carrying ofKirpans in the
profession of the Sikh religion can be restricted by the state.

Article 32 of the constitution deals with the right to constitutional remedies. It empowers
the citizens to seek a court of law in case of any denial of the fundamental rights, by
asking the courts to preserve or safeguard the citizen’s fundamental rights. It can be
done in various ways, for example the courts can issue various kinds of writs. These
writs arehabeas corpus, mandamus, prohibition, quo warranto and certiorari. This right
can be suspended by the central government in case of a national or state emergency
is declared.
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ROLE OF JUDICIARY IN UNITED NATIONS

Settling Disputes Between States

International Court of Justice

The principal judicial organ of the United Nations is the International Court of Justice
(ICJ). This main body of the UN settles legal disputes submitted to it by States in
accordance with international law. It also gives advisory opinions on legal questions
referred to it from authorized UN organs and specialized agencies. The Court is
composed of 15 judges, who are elected for terms of nine years by the General
Assembly and the Security Council.

Courts and Tribunals

In addition to the International Court of Justice, a wide variety of international courts,


international tribunals, ad hoc tribunals and UN-assisted tribunals have varying degrees
of relation to the United Nations (such as the tribunals for the former Yugoslavia and
Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts
of Cambodia and the Special Tribunal for Lebanon). The Mechanism for International
Criminal Tribunals (the MICT) was established by the United Nations Security Council
on 22 December 2010 to carry out a number of essential functions of the International
Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the
former Yugoslavia (ICTY), after the completion of their respective mandates.These are
established by (and are Subsidiary Organs of) the Security Council.

Law applied

When deciding cases, the court applies international law as summarized in Article 38 of
the ICJ Statute, which provides that in arriving at its decisions the court shall apply
international conventions, international custom and the "general principles of law
recognized by civilized nations." It may also refer to academic writing ("the teachings of
the most highly qualified publicists of the various nations") and previous judicial
decisions to help interpret the law although the court is not formally bound by its
previous decisions under the doctrine of stare decisis. Article 59 makes clear that the
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common law notion of precedent or stare decisis does not apply to the decisions of the
ICJ. The court's decision binds only the parties to that particular controversy. Under
38(1)(d), however, the court may consider its own previous decisions.

ROLE OF JUDICIARY IN HUMAN RIGHTS

It is constitutional mandate of judiciary to protect human rights of the citizens. Supreme


Court and High Courts are empowered to take action to enforce these rights. Machinery
for redress is provided under Articles 32 and 226 of the constitution. An
aggrieved person can directly approach the Supreme Court or High Court of the
concerned state for the protection of his/her fundamental rights, redress of grievances
and enjoyment of fundamental rights. In such cases Court are empowered to
issue appropriate order, directions and writs in the nature of Habeas Corpus,
Mandamus,Prohibition, Quo-Warranto and Certiorari.

Judiciary is ultimate guardian of the human rights of the people. It not only
protects the rights enumerated in Constitution but also has recognized certain
un-enumerated rights by interpreting the fundamental rights and widened their scope.
As a result people not only enjoy enumerated rights but also un-enumerated rights as
well.

Supreme Court in Maneka Gandhi v. Union of India,interpreted the right to life and to
widen its scope and deduced un-enumerated right such as “right to live with human
dignity”. Supreme Court propounded the theory of “emanation” to make the existence

of the fundamental right meaningful and active. Thereafter, in many cases court such as
People's Union for Civil Liberties and an other v. State of Maharashtra and others,
Francis Coralie Mullin v. the Administrator, Union Territory of Delhi held that right to
life includes right to live with human dignity. Therefore, through the judicial
interpretations various rights have been recognized though they are not
specifically provided in Part III of the Constitution.

The rule of locus standi, i.e. right to move to the court, whereby only aggrieved person
can approach the court for redress of his grievances has been relaxed by the
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judiciary. Now court through public interest litigation permits public spirited persons to
file a writ petition for the enforcement of rights of any other person or a class, if they are
unable to invoke the jurisdiction of the Court due to poverty or any social and
economic disability. In S.P. Gupta v. Union of India and others, Supreme Court held that
any member of the public can approach the court for enforcing the Constitutional
or legal rights of those, who cannot go to the court because of poverty or any
other disabilities.

Similar observations have been made by Supreme Court in various


judgments such as in Bandhua Mukti Morcha v. Union of India Ramsharan
Autyanuprasi and another v.Union of India and Others Narmada Bachao Andolan v.
Union of India.Therefore, public interest litigation has become the tool for the
protection of human rights of the people in India.

Women are considered weak in our society which has resulted in the
backwardness of women in every sphere. Women remains oppressed ones and
are often denied basic human rights. They are subjected to violence in society whether
it is within four walls of the house or at workplace. Despite the provision of
right to equality enshrined under Article 14 of the Constitution, they are
subjected to discrimination. Gender is considered to be the most important factor as
for as Indian labour market is concerned. Discrimination against women laborer in
terms of wage payments is a very common phenomenon in India. Wages earned
by women are generally lesser than their male counterparts. However, Article 39 of the
Constitution guarantees the principle of equal pay for equal work for both men and
women. Despite the guarantees of equal rights to women still they are not
equally treated with men. Supreme Court has played remarkable role in protection of
their rights such as in Associate Banks officers Association v.State Bank of
India,Supreme Court protected the rights of women workers and held that women
workers are in no way inferior to their male counterparts and hence there should be
no discrimination on the ground of sex against women. In State of Madhya
Pradeshv.Pramod Bhartiya Supreme Court held that under Article 39 the State shall
direct its policy towards securing equal pay for equal work for both men and women
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Article 21 i.e. protection of life and personal liberty was invoked for the dignified life for
the prostitutes by Supreme Court in case of State of Maharashtra v. Madhukar
Narayan Mandlikar held that even a woman of easy virtue is entitled to privacy and no
one can evade her privacy. In Bodhi Satwa Gautam v. Subra Chakarborty Supreme
Court has held that rape is a crime against basic human rights. Supreme Court
laid down guidelines for protection of women against sexual harassment at work place
Vishaka v.State of Rajasthan and reiterated the same in Medha Kotwal Lele v. Union
of India. Guidelines for ensuring the safe work environment for women were given and
made it mandatory for employer to take responsibility in cases of sexual harassment at
work.

Therefore, Judiciary is playing a crucial role in the protection of the human rights of the
people from time and again by expanding the scope of the rights and recognizing new
rights with the need of time. Judiciary has expanded the scope of right to life to include
entitlements which are vital for the enjoyment of right to life with dignity. Courts
have protected right of the people in numerous cases whether it is a right
against violence in custody, to live in a pollution free environment, right to health, right
to adequate wages of the workers, safety of the women at workplace, compensation to
rape victim and rights of the child labourers and so on.

The Protection of Human Rights Act, 1993

The need for the protection of human rights issues both at national and
international level led to the enactment of an Act which specifically deals with
the protection of Human rights called ‘The Protection of Human Rights Act, 1999.

The objective of the Act is to provide organizational structure for protecting


human rights. The Act provides for Human Rights Commission at national level as well
as at State level in each state and further for setup of Human Rights Courts at district
level for better protection of human rights and matters connected therewith.

The Act defines human rights in Section 2(d) as “the rights relating to life,
liberty, equality and dignity of the individual guaranteed by the Constitution or
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embodied in the International Covenants and enforceable by courts in India .” The


above definition, however, limits the scope of the functioning of the National Human
Rights Commission. Though India ratified the two Covenants, these are International
Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights. International covenants are not justifiable before the
courts, so there should be laws in the country which is to be with the conformity of
these conventions. Therefore, the rights guaranteed in the Constitution are in
conformity with these International Conventions.

National Human Rights Commission

It is the State’s primary responsibility not only to protect the human rights of the people
from any violation but also the prevention of such violations by providing the requisite
means for its realization and further ensuring human development. State
discharged such responsibility through its institutions. So at national level,
National Human Rights Commission was established under the Protection of Human
Rights Act of 1993 to fulfill this responsibility.

The functions of the National Human Rights Commission are provided under
Section 12, from the perusal of Section Commission performs various functions which
are as follow:-

a) Inquire into the cases of violation of human right suo motu, on petition presented to
him or on the direction of the Court.

b) Intervene in any proceeding involving any allegation of violation of human rights


pending before a court with the approval of such court.

c) Visit into any jail or other institution under the control of the State
Government, where persons are detained or lodged for purposes of treatment,
reformation or protection, for the study of the living conditions of the inmates thereof
and to make recommendations thereon to the Government.
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Commission is empowered to exercise the powers of civil court in respect of


summoning and enforcing attendance of witnesses and their examination on
oath, discovery and production of documents, receiving evidence on affidavit etc.
The commission for the purpose of conducting any investigation pertaining to the inquiry
can utilize the services of any officer or investigation agency of the Central Government
or any State Government with the concurrence of the Central Government or the State
Government, as the case may be.

State Human Rights Commission

Power to constitute commission at state level is conferred on the state government


under Section 21 (1) of the Act. The Commission is composed of chairperson and four
other members. The State Commission is empowered to perform similar
functions, which have been entrusted to the National Human Rights
Commission. State Commission inquires into violations of human rights only in respect
of matters related to any of the entries enumerated in List II and III in the
Seventh Schedule of then Constitution. The study of treaties and other international
instruments on human rights have been excluded from the purview of State Human
Rights Commission.

Human Rights Courts

State government set up these courts with concurrence of the Chief Justice of the
High Court, by notification specifying for each district a Court of Session to be a Human
Rights Court under Section 30. State Government appoints Special Public Prosecutor
to conduct cases in human rights court under Section 31 of the Act.
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HUMAN RIGHTS DEVELOPMENT IN INDIA

1829 - The practice of sati was formally abolished by Governor General William Bentick.

1929 - Child Marriage Restraint Act, prohibiting marriage of minors under 14 years of
age is passed.

1955 - Reform of family law concerning Hindus gives more rights to Hindu women.

1973 - Supreme Court of India rules in Kesavananda Bharati case that the basic
structure of the Constitution (including many fundamental rights) is unalterable by a
constitutional amendment.

1978 - SC rules in Menaka Gandhi v. Union of India that the right to life under Article 21
of the Constitution cannot be suspended even in an emergency.

1985-6 - The Shah Bano case , where the Supreme Court recognized the Muslim
woman's right to maintenance upon divorce, sparks protests from Muslim clergy. To
nullify the decision of the Supreme Court, the Rajiv Gandhi government enacted The
Muslim Women (Protection of Rights on Divorce) Act 1986

1989 - Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act , 1989 is
passed.

1992 - A constitutional amendment establishes Local Self-Government ( Panchayati Raj


) as a third tier of governance at the village level, with one third of the seats reserved for
women. Reservations were provided for scheduled castes and tribes as well.

1993 - National Human Rights Commission is established under the Protection of


Human Rights Act.

2001 - Supreme Court passes extensive orders to implement the right to food.
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HYPOTHESIS

The United Nations was created to save succeeding generations from the scourge of
war, protect human rights, maintain international peace and security, and uphold
international law. Its 71-year history is marked with many successes, but also
disappointments. The united nations has failed to live up to his reputation around the
world and has been criticized upon the workings of there in the field of peace keeping,
health, sexual abuse, nuclear proliferations. Some of the examples which lead to the
failure of the united nations all over the world.

1. Nuclear proliferations: In 1970, when the Nuclear Non-proliferation Treaty (NPT)


was signed by 190 nations, all five superpowers owned nuclear weapons. Later,
despite the NPT and Partial Test Ban Treaty, several countries – North Korea,
Israel, Pakistan, and India – developed nuclear weapons. This revealed the
U.N.’s inability to enforce regulations on offending nations.

2. Rape and child sex abuse in the Congo: UN peacekeepers were accused of
paying women and young girls they were supposed to be protecting for sex, and
sometimes raping them, in the Democratic Republic of Congo in early 2005.
Subsequent reports found there had been similar allegations in countries ranging
from Cambodia to Bosnia to Haiti.

3. Financial scandal: This was the programme whereby Iraq could gain relief from
international sanctions by selling oil through the UN, which would supervise the
delivery of food and medicine with the resulting cash. However, large sums of
money were channeled into private pockets through the programme – with some
even being used to buy influence at the UN itself. It is regarded as the worst
financial scandal in UN history.

This all lead to the criticism of the United Nations and was leading to slump. This lead to
the defamation and the image of United Nations was tarnished.
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Human right is one to which people all over the world are entitled. In my opinion the
rights such a right to life, liberty, equality and security of person are most important in
nowadays life. Although there are a lot of documents, legislations, conventions and
declarations adopted in case to protect human rights, the number of people still
experience human right abuses. Universal Declaration of Human Rights (UDHR) is one
of human rights protection tools and it was adopted in 1948. UDHR declares that all
human beings are born free and equal in dignity and rights. Entitlement to rights does
not depend upon race, color, sex, language, religion or any other difference among
people. Despite the fact that all human rights are clearly defined in this Declaration,
many people all over the world do not understand that sometimes their treatment
abuses someone's rights. So if we want to change the world we should start with
changing ourselves.

CASES

Kulbhushan Jadhav’s case

The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations. It was established by the United Nations Charter in June 1945 and began its
activities in April 1946. The seat of the Court is at the Peace Palace in The Hague
(Netherlands). Of the six principal organs of the United Nations, it is the only one not
located in New York.

In the light of the decision of the Pakistan’s military court to award death sentence to
Kulbhushan Jadhav (Indian ex-navy officer) in a secret trial on the charge of espionage;
India approached ICJ seeking provisional measures for the stay of Jadhav’s execution.
The Indian Government instructed the team led by Senior Advocate Harish Salve to
represent the country at ICJ. After hearing both the parties, in a decision dated
18.05.2017, ICJ gave the decision in favour of India. “Pakistan shall take all measures
to ensure that Jadhav is not hanged until a final decision by the court”, said ICJ judge
Ronny Abraham.

The victory of India at ICJ in Kulbhushan Jadhav case is pertinent from the perspective
of the International law. In this case, the issues like jurisdiction, the right to consular
access provisional measures, under Article 41 of ICJ Statute have majorly come
upfront.
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The Court relied on Article I of the Optional Protocol to the Vienna Convention to assert
its jurisdiction. According to it, the Court has jurisdiction over “disputes arising out of the
interpretation or application of the Vienna Convention”. The court unanimously found
that prima facie dispute exists between the parties which are clear from the pleadings of
the parties. Court in light of para 1 of Article 36 ‘observes the violations of the right to
consular access and failure on part of the detaining State to inform the person of his
right, shows that the rights of India are at least plausible’.

Qatar v/s UAE

Doha accuses the UAE of violating international laws by expelling thousands of Qataris,
many of whom have family or own property in the UAE.

They have dragged the UAE to the international court of justice on grounds of violations
of human rights and the ICJ is likely to give a order in favor of the Qataris elimination of
all forms of discrimation against them.

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors.

Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors is a landmark
judgment of the Supreme Court of India, which holds that the right to privacy is
protected as a fundamental constitutional right under Articles 14, 19 and 21 of the
Constitution of India.

The judgement of the 9-judge bench contains six concurring opinions affirming the right
to privacy of Indian citizens. It explicitly overrules previous judgments of the Supreme
Court in Kharak Singh vs. State of UP and M.P Sharma v Union of India, which had held
that there is no fundamental right to privacy under the Indian Constitution.
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Navtej Singh Johar v. Union of India section 377

Navtej Singh Johar & Ors. versus Union of India the. Secretary Ministry of Law and
Justice is a landmark decision of the Supreme Court of India in 2018 that decriminalized
all consensual sex among adults in private, including homosexual sex.

The court was asked to determine the constitutionality of Section 377 of the Indian
Penal Code, a colonial-era law which among others criminalised homosexual acts as an
"unnatural offence". On 6 September 2018, the court unanimously declared the law
unconstitutional "in so far as it criminalises consensual sexual conduct between adults
of the same sex". Portions of Section 377 relating to sex with minors, non-consensual
sexual acts, and bestiality remain in force.

Vishakha and others v State of Rajasthan

Vishakha and others v State of Rajasthan was a 1997 Indian Supreme Court case
where Vishakha and other women groups filed Public Interest Litigation (PIL) against
State of Rajasthan and Union of India to enforce the fundamental rights of working
women under Articles 14, 19 and 21 of the Constitution of India. The petition was filed
after Bhanwari Devi, a social worker in Rajasthan was brutally gang raped for stopping
a child marriage.

The court decided that the consideration of "International Conventions and norms are
significant for the purpose of interpretation of the guarantee of gender equality, right to
work with human dignity in Articles 14, 15, 19(1)(g) and 21 of the Constitution and the
safeguards against sexual harassment implicit therein." The petition, resulted in what
are popularly known as the Vishaka Guidelines. The judgment of August 1997 given by
a bench of J. S. Verma (then C.J.I)., Sujata Manohar and B. N. Kirpal, provided the
basic definitions of sexual harassment at the workplace and provided guidelines to deal
with it. It is seen as a significant legal victory for women's groups in India.
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Mohd Ahmed Khan v. Shah Bano begum, 1985( Right to Maintenance)

Muslim personal law was challenged in this petition. The Supreme Court ruled in favour
of Shah Bano and granted her alimony which the Muslim community felt as an
encroachment on Muslim Sharia law. The decision of the case led to the formation of
the All India Muslim Personal Law Board in 1973.

MC Mehta v. Union of India, 1986

MC Mehta filed a Public Interest Litigation for escape of poisonous gases by a plant in
Bhopal. The court in this case extended the scope of Article 21 and 32 of the
Constitution of India. The case is also famous as Bhopal Gas Tragedy.

Shreya singhal v. Union of India, 2015 Section 66A of IT Act

The apex Court held section 66A of the Information Technology Act which allowed
arrests for objectionable content posted on the internet as unconstitutional and hence,
struck down by the impugned section.
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CONCLUSION/WAY FORWARD

IN RELATION TO PEACE KEEPING

The united nations is not the first international organization to be established to help in
settling conflicts peacefully and preventing future conflicts. There was also the League
of nations established in 1919 by Woodrow Wilson. However, these organizations
proved to be ineffective due to a lack of credibility and legitimacy. The united nations
has been engaged in a total of 53 peace keeping missions since its formation although
obviously not all of them have been successful. The United Nations has been
successful in its attempt to maintain peace and security in the world only to a small
extent, although it has, nevertheless, succeeded in certain attempts. Its successes and
failures can be seen in its various peacekeeping operations throughout the decades.

IN RELATION TO HUMAN RIGHTS IN INDIA

Human rights are basic fundamental rights which are integral part for the
development of human being in the absence of which person cannot live life
with dignity. Constitution of India protects the fundamental rights or human rights
of the people, provisions for the same have been made not only in the Articles
of the Constitution but in fact Preamble also talks about the fundamental
freedoms and protection of the dignity of the individual. The Indian Judiciary had even
relaxed the rule of locas standi for the protection of human rights which pave
the way for the development of the concept of Public Interest Litigation. Through
public interest litigation various incidents of violation of human rights had been put
before the Courts. Courts protected the rights of women, workers, children,
prisoners and so on. Thus judiciary is playing a role of savior of the human
rights of the people so that each individual can live with dignity. Protection of
human rights is important issue of concern throughout the world various
international instruments have been incorporated for the protection of human
rights and on the basis of the provisions of the international instruments, national
endeavors have been made such as enacting the Protection of Human Rights Act
1993. Provisions have been made under the Act for the establishment of the National
P a g e | 33

Human Rights Commission as well as State Human Rights Commission in various


States and it also provide for the constitution of Human Rights Courts at the district level
so that the justice can be provided to the victims of human rights violation at every level.
Since the establishment of the National Human Rights Commission it has been playing
a commendable task in protecting the human rights of the people and it also gave
monetary relief to the victims and to their families. Although some amendments are
necessary to the be made in the Act and for the same some following suggestions have
been made if such changes may be made than it can strengthen the position of the
human rights commission and it would be possible to achieve the objectives of the
Act easily.

1. With regard to personnel and financial matters the National Human


Rights Commission must be made independent body, as it has to look towards
the Government. It should be provided with its own staff for investigation of
cases instead of keep it dependent on police department and such other officials, as
may be necessary for the efficient working of the Commission.

2. There should be a provision in the Act which specifically provide the time period with
in which the decisions of the commission should be implemented by the
concerned Government.

3. Provision can be made for the conduct of seminars in every district each month for
educating people about their human rights and the protections granted by
Constitution as well as under the Act of 1993.

4. In schools as well in colleges one compulsory subject can be introduce in


which students may study about human rights.
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BIBLOGRAPHY

www.google.co.in

www.wikipedia.com

www.Nhrc.nic.in

www.manupatra.com

www.un.org

www.lawnn.com

www.iosrjournals.org

www.Newyorktimes.com