International Human Rights Law: UDHR, Covenants and the UN

Before 1945, how a state treated its own nationals was largely its own affair. The atrocities of the Second World War changed that, and human rights became a central concern of international law. This note covers the Charter provisions, the Universal Declaration, the two Covenants, the kinds of rights and obligations, the UN machinery for monitoring them, and India's position.

1. Foundations

Figure 1: Growth of the international human rights system

• UN Charter. The Preamble reaffirms faith in fundamental human rights; Article 1(3) makes promoting respect for human rights a purpose of the UN; under Articles 55 and 56, members pledge joint and separate action to achieve universal respect for human rights without distinction as to race, sex, language or religion.
• Universal Declaration of Human Rights. Adopted by the General Assembly on 10 December 1948, now observed as Human Rights Day, with no votes against and eight abstentions; drafted by a commission chaired by Eleanor Roosevelt; India's delegate Hansa Mehta secured the wording that all human beings, rather than all men, are born free and equal.
• Status of the UDHR. As a General Assembly resolution it is not binding as such, but many of its provisions are regarded as customary law, and it has shaped national constitutions and later treaties.
• International Bill of Human Rights. The UDHR, the two Covenants of 1966 and their Optional Protocols together.

2. The Two Covenants

Figure 2: ICCPR and ICESCR compared

• Common Article 1. All peoples have the right of self-determination (Topic 24)
• Non-derogable rights, ICCPR Article 4(2). No derogation from the right to life (6), freedom from torture (7), slavery and servitude (8(1), (2)), imprisonment for inability to fulfil a contract (11), retroactive criminal law (15), recognition as a person (16) and freedom of thought, conscience and religion (18)
• Optional Protocols to the ICCPR. The First Optional Protocol, 1966 allows individual complaints to the Human Rights Committee; the Second Optional Protocol, 1989 aims at abolition of the death penalty.
• Progressive realisation. Under the ICESCR, states must take steps, to the maximum of available resources, towards full realisation; the Committee's General Comment No. 3 (1990) recognises a minimum core obligation to ensure essential levels of each right.

3. Kinds of Rights

• Generations. Karel Vasak described first generation civil and political rights, second generation economic, social and cultural rights, and third generation solidarity rights such as development, peace and a healthy environment.
• Vienna Declaration, 1993. The World Conference on Human Rights declared that all human rights are universal, indivisible, interdependent and interrelated, and recommended the post of High Commissioner, created by the General Assembly in 1993.
• Right to development. Recognised in the General Assembly's Declaration on the Right to Development, 1986.
• Right to a healthy environment. Recognised by the Human Rights Council in 2021 and the General Assembly in resolution 76/300 (2022)
• Respect, protect and fulfil. States must refrain from violating rights, protect individuals against violations by others, and take positive steps to realise rights.

4. UN Machinery

Figure 3: Charter-based and treaty-based bodies

• Human Rights Council. Created by General Assembly resolution 60/251 in 2006, replacing the Commission on Human Rights (1946); 47 members elected by the General Assembly; meets in Geneva.
• Universal Periodic Review. Every UN member's human rights record is reviewed by the Council in cycles, based on the state's report, UN information and stakeholder submissions.
• Treaty bodies. Ten committees monitor the core treaties, including the Human Rights Committee (ICCPR), the Committee on Economic, Social and Cultural Rights, and the committees under CERD, CEDAW, CAT, CRC, CMW, CRPD and CED, with a Subcommittee on Prevention of Torture.
• Regional systems. The European Convention on Human Rights, 1950 with its Court; the American Convention, 1969 with the Inter-American Court; and the African Charter, 1981 with the African Court; Asia has no comparable binding system.

5. India and the Covenants

• Accession. India acceded to both Covenants on 10 April 1979, with declarations, including that Article 1 applies only to peoples under foreign domination and that there is no enforceable right to compensation under Article 9(5) (Topic 14)
• No individual complaints. India is not a party to the Optional Protocols, so individuals cannot take complaints against India to the Human Rights Committee.
• Domestic effect. The Covenants are referred to in the Protection of Human Rights Act, 1993, and Indian courts read them into Part III where consistent (Topic 46)

6. Frequently Asked Questions

Is the Universal Declaration of Human Rights legally binding?

Not as a treaty. It was adopted as a General Assembly resolution, but many of its provisions have become customary international law, and its content is binding on parties to the Covenants and other treaties.

Can an Indian citizen complain to the UN Human Rights Committee?

No. Individual complaints under the ICCPR are possible only against states that have accepted the First Optional Protocol, and India has not done so. Concerns can still be raised through India's periodic reports and the Universal Periodic Review.

Which ICCPR rights cannot be suspended in an emergency?

Under Article 4(2): the right to life, freedom from torture and slavery, freedom from imprisonment for inability to fulfil a contract, freedom from retroactive criminal law, recognition as a person before the law, and freedom of thought, conscience and religion.

What is the Universal Periodic Review?

A process of the Human Rights Council, begun in 2008, under which the human rights record of every UN member state is reviewed by other states in regular cycles, leading to recommendations that the state accepts or notes.

7. Related Topics

• Topic 24: Self-Determination. Common Article 1.
• Topic 45: Specialised Conventions. CEDAW, CRC and CAT.
• Topic 46: Human Rights in India. The 1993 Act and courts.