Evolution and Sources of IHRL

Historical Background

Natural Law Traditions

The concept of human rights did not originate in the modern era but is deeply rooted in the natural law tradition, which believes in the existence of universal moral principles discoverable by reason and inherent in human nature.

In Ancient India, texts like the Manusmriti and Dharmaśāstra discussed duties and rights as part of one's dharma. Similarly, Greek philosophers such as Socrates, Plato, and Aristotle explored justice, ethics, and the responsibilities of the state toward its people.

During the Roman era, Cicero articulated that laws must conform to reason and justice and that unjust laws were not true laws. This idea would later be foundational in the development of the notion of "inalienable rights."

In the medieval period, St. Thomas Aquinas argued that human laws must align with divine law and natural law. If a law violates natural law, it is not binding in conscience.

In early modern Europe, philosophers like Hugo Grotius and John Locke advanced theories on natural rights. Locke, in particular, emphasized the right to "life, liberty, and property" as natural rights. His ideas heavily influenced documents such as:

Magna Carta (1215) in England – limited the power of the monarchy and affirmed legal rights.
English Bill of Rights (1689) – expanded civil liberties.
American Declaration of Independence (1776) – affirmed that all men are created equal with certain unalienable rights.
French Declaration of the Rights of Man and Citizen (1789) – enshrined liberty, property, and resistance to oppression.

Post-World War II Developments

World War II, especially the Holocaust and other wartime atrocities, highlighted the failure of existing systems to protect human dignity. This marked a significant shift in international relations and legal obligations.

In response, the United Nations was established in 1945 with the core objective of maintaining peace and promoting human rights. Article 1(3) of the UN Charter explicitly commits to promoting and encouraging respect for human rights and fundamental freedoms.

This was followed by the adoption of key human rights instruments:

Universal Declaration of Human Rights (1948)
Genocide Convention (1948)
Refugee Convention (1951)
Geneva Conventions (1949) and their protocols

Thus, human rights became a legitimate concern of the international community, moving from a state-centric to an individual-centric international legal order.

International Human Rights Law (IHRL) today rests on the recognition that certain rights are so fundamental that they must be protected universally, regardless of a nation’s internal law.

Key Instruments of IHRL

Universal Declaration of Human Rights (UDHR), 1948

The UDHR was adopted by the United Nations General Assembly on 10 December 1948 in the aftermath of World War II. It represents the first global expression of rights to which all human beings are inherently entitled.

Structure: The UDHR contains a Preamble and 30 Articles categorized into civil, political, economic, social, and cultural rights:

Civil and Political Rights: Right to life, liberty, equality before the law, freedom of movement, thought, conscience, religion, expression, and assembly.
Economic, Social and Cultural Rights: Right to work, education, rest, leisure, and participation in cultural life.

While not legally binding, the UDHR has become a customary international law due to its wide acceptance and consistent application.

Example 1. How is UDHR used by courts or nations if it is not a binding treaty?

Answer:

Many domestic and international courts refer to the UDHR as an interpretative guide. For example, the Supreme Court of India in several landmark cases like Vishaka v. State of Rajasthan (1997) has invoked UDHR provisions while framing guidelines in the absence of domestic legislation.

International Covenant on Civil and Political Rights (ICCPR), 1966

The ICCPR expands the civil and political rights declared in the UDHR and was adopted in 1966. It came into force in 1976 after the requisite number of ratifications.

The ICCPR imposes legal obligations on State parties and includes mechanisms for monitoring implementation through the Human Rights Committee.

Key Rights in ICCPR

Right to life ($\text{Article 6}$)
Freedom from torture and cruel treatment ($\text{Article 7}$)
Right to liberty and security of person ($\text{Article 9}$)
Freedom of thought, conscience, religion ($\text{Article 18}$)
Freedom of expression ($\text{Article 19}$)
Right to fair trial and due process ($\text{Article 14}$)

The ICCPR also includes two Optional Protocols:

First Protocol allows individual complaints to the Human Rights Committee
Second Protocol aims at abolition of the death penalty

International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966

The ICESCR, like the ICCPR, was adopted in 1966 and came into force in 1976. It lays out positive obligations on states to progressively realize rights based on resource availability.

Key Rights in ICESCR

Right to work and favourable working conditions ($\text{Articles 6–7}$)
Right to social security ($\text{Article 9}$)
Protection of family and maternity ($\text{Article 10}$)
Right to adequate standard of living ($\text{Article 11}$)
Right to education ($\text{Article 13}$)

The Committee on Economic, Social and Cultural Rights (CESCR) monitors implementation. The Optional Protocol (2008) allows individuals to submit complaints.

Other core human rights treaties (CEDAW, CRC, CAT, CERD, etc.)

Besides the UDHR and the twin covenants, the IHRL framework includes various specific treaties known as the Core International Human Rights Treaties. These include:

Treaty	Year
CEDAW – Convention on the Elimination of All Forms of Discrimination Against Women	1979
CRC – Convention on the Rights of the Child	1989
CAT – Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment	1984
CERD – Convention on the Elimination of All Forms of Racial Discrimination	1965

Each treaty is monitored by a specialized treaty body that reviews reports submitted by State parties and may also receive individual complaints in some cases.

These instruments form the backbone of the international legal framework for protecting and promoting human rights across various categories and vulnerable groups.

Categories of Human Rights

Civil and Political Rights

Right to life, liberty, security

Civil and political rights are also known as "first generation rights" and primarily protect individuals from abuses by the state, ensuring participation in civil and political life.

The right to life is one of the most fundamental human rights and is protected under Article 6 of the ICCPR. It includes not only protection from arbitrary killing but also requires states to take positive steps to preserve life.

Liberty and security relate to the freedom from arbitrary arrest or detention. Article 9 of the ICCPR guarantees the right to personal liberty and outlines legal procedures required for any deprivation of liberty.

Indian Constitution Reference: Article 21 of the Constitution of India guarantees the right to life and personal liberty and has been widely interpreted to include rights such as the right to livelihood, shelter, and clean environment.

Freedom from torture

This right ensures protection from cruel, inhuman, or degrading treatment or punishment. It is considered an absolute right—that is, no limitation or derogation is permitted under any circumstances.

It is protected under:

Article 7 of the ICCPR
Convention Against Torture (CAT), 1984

States have a duty to prevent torture, investigate acts of torture, punish perpetrators, and provide reparations to victims.

Freedom of expression, assembly, association

These rights are essential for a functioning democracy and allow individuals to freely form and express opinions, gather for peaceful protests, and form organizations or unions.

Article 19 of the ICCPR: Freedom of opinion and expression
Article 21 of the ICCPR: Right of peaceful assembly
Article 22 of the ICCPR: Right to freedom of association

These rights are subject to certain restrictions, such as national security, public order, and morality, but such restrictions must be legal, necessary, and proportionate.

Example from India: The Supreme Court in Shreya Singhal v. Union of India (2015) struck down Section 66A of the IT Act for violating the freedom of speech and expression under Article 19(1)(a).

Economic, Social, and Cultural Rights

Right to work, education, health, adequate standard of living

These rights are often referred to as "second generation rights". They focus on social justice and equality, requiring states to take positive actions for their realization.

Right to Work

Protected under Article 6 of the ICESCR, this right ensures the opportunity to gain a living by freely chosen or accepted work. It also includes the right to just and favourable conditions of work.

Right to Education

Article 13 of the ICESCR declares that primary education shall be free and compulsory, and that higher education should be equally accessible to all. In India, this is reflected in Article 21A which provides for free and compulsory education to children aged 6–14 years.

Right to Health

This includes both physical and mental health, protected under Article 12 of the ICESCR. States must work toward reducing infant mortality, improving environmental hygiene, and ensuring access to healthcare services.

Right to an Adequate Standard of Living

Covered under Article 11 of the ICESCR, this includes adequate food, clothing, housing, and continuous improvement of living conditions.

Unlike civil and political rights, these rights are subject to progressive realization based on the resources available to each State.

Example 1. Is the right to health enforceable in Indian courts?

Answer:

Yes. Although the right to health is not explicitly mentioned in the Indian Constitution, the Supreme Court in cases like Consumer Education and Research Centre v. Union of India (1995) interpreted it as part of Article 21 (Right to Life), thereby making it legally enforceable.

Generations of Human Rights

The concept of human rights generations was first proposed by Czech jurist Karel Vasak in 1979. It categorizes human rights into three (and later, four) generations:

First Generation – Civil and Political Rights

These rights are designed to protect individuals from excesses of the state. They are negative rights as they require the state to abstain from interfering. Examples include:

Right to life
Right to liberty and security
Freedom of speech, religion, and assembly

Second Generation – Economic, Social, and Cultural Rights

These are positive rights requiring active involvement of the state to ensure well-being and equality. Examples include:

Right to education
Right to work and social security
Right to adequate standard of living

Third Generation – Collective or Solidarity Rights

These rights address group or global concerns and are still evolving. They require international cooperation and are often not enforceable by individuals.

Right to development
Right to peace
Right to a healthy environment

Fourth Generation – Emerging Digital Rights (Scholarly View)

This category is proposed in the context of the digital revolution and includes rights like:

Right to internet access
Right to data privacy and protection
Right against algorithmic bias and surveillance

Note: Though not formally recognized in treaties, fourth generation rights are gaining importance due to advancements in AI and digital technologies.

Implementation and Enforcement Mechanisms

UN Human Rights Treaty Bodies

Monitoring State compliance

The United Nations human rights treaty bodies are committees of independent experts established to monitor the implementation of the core international human rights treaties by State parties.

There are 10 treaty bodies, each overseeing a specific human rights treaty, such as the:

Human Rights Committee (ICCPR)
Committee on Economic, Social and Cultural Rights (ICESCR)
Committee on the Elimination of Discrimination against Women (CEDAW)
Committee on the Rights of the Child (CRC)

State parties are required to submit periodic reports (usually every 4–5 years) outlining how they are fulfilling their treaty obligations. The committees then issue Concluding Observations highlighting achievements, concerns, and recommendations.

Example: India, as a party to ICCPR and CEDAW, submits regular reports and responds to questions raised by the respective committees.

Individual complaints procedures

Certain treaty bodies are empowered to consider individual communications (complaints) from individuals alleging violations of their rights under the respective treaties.

This is only possible if:

The individual has exhausted all domestic remedies.
The State has accepted the competence of the committee to hear individual complaints.

Committees such as the Human Rights Committee (under ICCPR's Optional Protocol) and Committee Against Torture accept such complaints and can issue views (similar to judgments) to the State party.

Note: India has not accepted the individual complaint mechanisms under any treaty body.

Example 1. What happens if a country refuses to follow the treaty body’s recommendations?

Answer:

The recommendations of treaty bodies are not legally binding in the strict sense. However, failure to comply may result in diplomatic pressure, reputational damage, and impact on international relations. Persistent non-compliance may attract discussions in the UN Human Rights Council or during Universal Periodic Reviews (UPR).

Regional Human Rights Systems

European system

The European human rights system is the most developed and enforceable regional system. It is governed by the European Convention on Human Rights (ECHR), 1950, under the auspices of the Council of Europe.

The most important feature is the European Court of Human Rights (ECtHR) based in Strasbourg, France, where individuals can directly file complaints against their governments after exhausting national remedies.

Key Features:

Binding judgments
Supervision of implementation by the Committee of Ministers
Wide jurisdiction over 46 European States

Inter-American system

The Inter-American human rights system is governed by the American Convention on Human Rights (ACHR), 1969 and is overseen by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

It is applicable to the member states of the Organization of American States (OAS).

Functions:

Investigates violations
Issues precautionary measures
Adjudicates individual complaints (for states that have accepted the court’s jurisdiction)

African system

The African human rights system is governed by the African Charter on Human and Peoples' Rights, 1981 (also known as the Banjul Charter).

The primary bodies are:

African Commission on Human and Peoples' Rights
African Court on Human and Peoples’ Rights (for countries that have accepted its jurisdiction)

Unique Feature: The African system incorporates both individual and group rights (such as the right to development and self-determination).

National Implementation of Human Rights

While international mechanisms are important, national implementation is the most effective way to protect human rights in everyday life. States have the primary responsibility to respect, protect, and fulfill human rights.

Key Methods of National Implementation

Constitutional protections (e.g., Fundamental Rights in the Indian Constitution under Articles 12–35)
Domestic legislation aligned with international treaties
Independent judiciary and constitutional courts
National Human Rights Institutions (NHRIs)
Awareness, training, and education programs

Example – India

India is a signatory to major international human rights treaties, and its Constitution incorporates human rights principles:

Article 21 – Right to life and personal liberty
Article 14 – Equality before law
Article 19 – Freedom of speech and expression

The Protection of Human Rights Act, 1993 led to the establishment of the National Human Rights Commission (NHRC) and State Human Rights Commissions.

Example 2. What role does the NHRC play in human rights enforcement in India?

Answer:

The NHRC monitors violations of human rights, investigates complaints, recommends compensation to victims, and advises the government on human rights policy. While its recommendations are not binding, they hold significant persuasive value.