Throughout his reign, and despite employing a powerful army of mercenaries, King

John suffered repeated defeat in a series of wars to defend Britain's land in western
France. The wars were disastrous; not only was warfare expensive but King John also
lost income that had been generated from the French lands for the British crown. King
John demanded increasing payments from his barons to pay military costs and make up
for lost income.

King John and his subjects lived in a feudal society. In accordance with feudal custom
the king granted barons land in return for an oath of loyalty, obedience, and military
service. The barons provided knights for the king's military whenever required instead
of paying rent to the king. Barons received control over their land but it was still owned
by the king. In turn, the barons granted smaller parcels of their land to individuals
chosen to serve as knights. This arrangement was known as holding land "in fee" from
the king. For their loyalty, the king was obliged to treat his barons and knights with
fairness and respect.

In addition to military service, a king was allowed to charge and collect a variety of taxes
or fees from barons to support the crown. Customary fees included reliefs, aids, scutage,
and county court fines. Reliefs were collected when a baron died and the baron's heir
inherited the baron's land and other property. If the heir was underage, the king could
take guardianship over the land and all of its profits. The king could sell the
guardianship to anyone who could pay the worth of the land. When the heir came of age,
he had to pay a relief to get his land back. The king also had the right to sell widows and
daughters into marriage for the price of the land. With regard to reliefs, King John dealt
unsympathetically and for maximum profit.

For special occasions, the king collected fees called aids from the barons. There were
three such occasions: when the king's eldest son was knighted, when his eldest daughter
married, and for ransom money should the king be captured and a ransom required. A
scutage was a cash payment to the king instead of providing knights for military service.
The payments allowed the king to hire men to serve in his army.

By King John's reign, excessively high scutage payments were commonly demanded to
fulfill a baron's military obligation. Further, King John appointed all of the judges of
England's county courts. The fines imposed on those who ran afoul of the courts were
extreme, often taking an individual's property and possessions.

In the 1200s the pope was still the spiritual overseer of the Catholic Church. King John
continually struggled over power with Pope Innocent III (1160–1216). He strenuously
fought the 1206 election of Stephen Langton (d. 1228) as archbishop of Canterbury, the
most powerful church position in England. King John even refused Langton entry into
England until 1213. In 1215 Langton became a key negotiator between the king and his
barons during negotiations over issues addressed in the Magna Carta.

Read more: Magna Carta - Events Leading To The Magna Carta - King, Barons, John,
Land, Clauses, and Military http://law.jrank.org/pages/12301/Magna-Carta-Events-
leading-Magna-Carta.html#ixzz1Hxp9INlL

Around 1210 King John's fee demands had become unreasonable, breaking all rules of
customary fairness. He acted impulsively and with no regard to justice. Having had
enough of this uncontrolled use of power, in January 1215 the rebellious land barons
wrote down their complaints against the king. They demanded a document be drawn up
guaranteeing justice in taxation, respect for ancient feudal customs of mutual obligation
and fairness, and limits on King John's power.

On June 10 the barons, dressed in full armor, met the king's representatives in
Runnymede meadow on the banks of the River Thames to continue negotiations. Faced
with losing the barons' loyalty and a probable civil war, King John reluctantly agreed to
the demands listed in a document called the "Articles of the Barons." King John placed
his seal on the articles on June 15, 1215; the barons renewed their allegiance to the king
on June 19.

In the days immediately following June 15, officials at the royal chancery (records office)
formally drafted the full text of the points agreed to at Runnymede in the form of a legal
letter. The document eventually became known as the Magna Carta (Latin for the "Great
Charter"). The royal chancery then distributed copies to county sheriffs and bishops to
be read to the people.

King John of England, whose tyrannical rule led to the creation of the Magana Carta. (© Corbis)

The Magna Carta contained sixty-three clauses. The first guaranteed the rights and
liberties of the Catholic Church free from royal interference. Nearly two-thirds of the
clauses addressed the king's abuses of feudal fees and wrote down what the king could
and could not charge according to customs. Other clauses dealt with justice and limited
fines the king's judges could charge those taken to court.

Clauses 39 and 40, given no special significance at the time, addressed civil liberties,
halted unjust imprisonment, and introduced the idea of trial by "equals," meaning trial
by one's peers. Ultimately these two clauses would be key to the Magna Carta's legacy of
creating fundamental principles of law. The most radical clause provided for the election
of twentyfive barons to a commission to enforce the rules set down in the document. The
commission had the power to seize property from the king if he did not follow the
charter's rules.

As sealed in 1215 the Magna Carta was simply an agreement between the king and
barons to help defuse a political crisis. It was not intended to be the foundation of
democratic civil liberties or set legal principles. For the first time in history, however, a
king agreed in writing that he was not above the rules of the land and that his authority
could be limited by a written document. The deceptive King John had no real intention
 of abiding by the charter, he only hoped to buy time until he could overpower the
barons. That the Magna Carta did become a basis for democracy was due to the way it
was handled after the king's death and to the practical use of its clauses, which spoke to
the needs of people who desired to live freely.

The following excerpt from the Magna Carta as reprinted in Magna Carta: Manuscripts
and Myths provides a sampling of clauses as written in 1215.

Read more: Magna Carta - Events Leading To The Magna Carta - King, Barons, John,
Land, Clauses, and Military http://law.jrank.org/pages/12301/Magna-Carta-Events-
leading-Magna-Carta.html#ixzz1HxpE3Uq6

Magna Carta - 1215

Facts and interesting information about the lives and events of Medieval History,
specifically, the Magna Carta

agna Carta
dieval Times encompass one of the most exciting periods in the History of England and Europe. One of the most importa
al events of the Medieval era is the Magna Carta.  What were the key dates of this famous historical event? What were th
of the Medieval people who were involved in this historical occasion? Interesting facts and information about the Magna
are detailed below.

s the Magna Carta?

the Magna Carta? The Magna Carta is a document that King John of England (1166 - 1216) was forced into signing. Ki
as forced into signing the charter because it greatly reduced the power he held as the King of England and allowed for th
on of a powerful parliament. The Magna Carta became the basis for English citizen's rights.

was the purpose of the Magna Carta?

as the purpose of the Magna Carta? The purpose of the Magna Carta was to curb the King and make him govern by the
laws that had prevailed before the Normans came. The Magna Carta was a collection of 37 English laws - some copied, s
ted, some old and some new. The Magna Carta demonstrated that the power of the king could be limited by a written gra

wrote the Magna Carta?

ntent of the Magna Carta was drafted by Archbishop Stephen Langton and the most powerful Barons of England. King J
he document which was originally called the 'Articles of the Barons' on June 10, 1215. The barons renewed the Oath of F
John on June 15, 1215. The royal chancery produced a formal royal grant, based on the agreements reached at Runnym
ecame known as Magna Carta. Copies of the Magna Carta were distributed to bishops, sheriffs and other important peo
hout England.

tant Facts about the Magna Carta

ing information and important facts:

Key Dates relating to the event: The Magna Carta was signed by King John on June 15, 1215

Other names for Magna Carta: It is also referred to as the Magna Charter or the Great Charter

Where was the Magna Carta signed? The Magna Carta was signed by King John in a meadow at Runnymede  in Egham,
Surrey, South England ( between Windsor and Staines)

Key People relating to the event: King John of England, Archbishop Stephen Langton and the Barons

Why the Magna Carta was famous and important to the history of England? The charter is considered to be the beginnin
constitutional government in England. The Magna Carta demonstrated that the power of the king could be limited by a
written grant.

he Magna Carta was important to the History of America

ment signed by an English King in 1215! Why the Magna Carta was important to the history of America? The Magna Ca
red the founding document of English liberties and hence American liberties. The influence of Magna Carta can be seen
States Constitution and the Bill of Rights. Article 21 from the Declaration of Rights in the Maryland Constitution of 1776

no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in
manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land."

ohn and the Magna Carta

vents led up to King John being forced into the signing of the Magna Carta?

In 1205 King John quarrelled with the Pope Innocent III about who should be archbishop of Canterbury. The Pope want
man named Stephen Langton to be archbishop, but King John swore he should never come to England.

In 1209 The pope retaliated, excommunicated King John and banned all church services in all parish churches

King John gave in, and Pope Innocent made the king and people pay him money whenever he demanded it.

Taxes levied by King John were extortionate. His reprisals against defaulters were ruthless and his idea justice was consid
avaricious

In 1212 King John imposes taxes on the Barons in his attempts to regain the lost lands of Aquitaine, Poitou and Anjou

King John quarrels with the Barons over his methods of ruling England

The Barons and Stephen Langton decided to curb the King and make him govern by the old English laws that had prevai
before the Normans came. The demands of the Barons were documented in the 'Articles of the Barons' in January 1215

The Barons took up arms against King John

The Barons captured London in May 1215

In June the Barons, in full armor, took King John by surprise at Windsor and he agreed to a meeting at Runnymede

King John signed and sealed the document on June 10, 1215

The barons renewed the Oath of Fealty to King John on June 15, 1215

The royal chancery produced a formal royal grant, based on the agreements reached at Runnymede, which became know
Magna Carta

Copies of the Magna Carta were distributed to bishops, sheriffs and other important people throughout England

hn had no intention of abiding by the Magna Carta. His duplicity leads to the Barons War between 1215 - 1217. The reb
support  the son of the king of France, Prince Louis in preference to King John. In 1216 Prince Louis invades England an
s to London where he receives support and is was proclaimed and accepted as King of England (although not actually
d). King John dies in October. The Barons turn on Prince Louis and supports the nine year old son of King John who the
King Henry III of England.

Biography of King John

ary of the Magna Carta

mmary of the Magna Carta is as follows:

The Church - The Church was to be free from royal interference, especially in the election of bishops

Taxes - No taxes except the regular feudal dues were to be levied, except by the consent of the Great Council, or Parliame

The right to due process which led to Trial by Jury

Weights and Measures - All weights and measures to be kept uniform throughout the realm

agna Carta 1215

dieval Times website provides interesting facts, history and information about these great people and important historica
which scatter the Medieval History books including the Magna Carta 1215. The Medieval Times Sitemap provides full de
the information and facts about the fascinating subject of the lives of the people who lived during the historical period of
Ages. The content of this article on Medieval life and times provides free educational details, facts and information for
ce and research for schools, colleges and homework for history courses and history coursework.

Medieval History - Magna Carta

 Read books from a history book club or watch the History Channel DVDs on Medieval Times

 Medieval Life and Times - Magna Carta

  Magna Carta

 What is the Magna Carta?

 What was the purpose of the Magna Carta?

 Who wrote the Magna Carta?

 Important Facts about the Magna Carta

 Why the Magna Carta was important to the History of America

 King John and the Magna Carta

 Summary of the Magna Carta

Customary international law are those aspects of international law that derive from custom.
Along with general principles of law and treaties, custom is considered by the International
Court of Justice, jurists, the United Nations, and its member states to be among the primary
sources of international law.

For example, laws of war were long a matter of customary law before they were codified in the
Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties.

The vast majority of the world's governments accept in principle the existence of customary
international law, although there are many differing opinions as to what rules are contained in it.

The Statute of the International Court of Justice acknowledges the existence of customary
international law in Article 38(1)(b), incorporated into the United Nations Charter by Article 92:
"The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply...international custom, as evidence of a general practice accepted as
law."

Customary international law "... consists of rules of law derived from the consistent conduct of
States acting out of the belief that the law required them to act that way."[1] It follows that
customary international law can be discerned by a "widespread repetition by States of similar
international acts over time (State practice); Acts must occur out of sense of obligation (opinio
juris); Acts must be taken by a significant number of States and not be rejected by a significant
number of States."[citation needed] A marker of customary international law is consensus among states
exhibited both by widespread conduct and a discernible sense of obligation.
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental
principle of international law which is accepted by the international community of states as a
norm from which no derogation is ever permitted. Examples include various international
crimes; a state which carries out or permits slavery, torture, genocide, war of aggression, or
crimes against humanity is always violating customary international law.

Other examples accepted or claimed as customary international law include the principle of non-
refoulement, immunity of visiting foreign heads of state, and the right to humanitarian
intervention.

Summary of Customary International Law and Jus Cogens as

Pertains to Juvenile Offenders (as of 2003/2004)

INTRODUCTION

This section of the webpage will give a cursory overview of international law and its sources, in
addition to the customary international law and jus cogens arguments as they pertain to juvenile
capital offenders.

It is critical for attorneys who have juvenile clients to assert international human rights law as
soon as possible, thus preserving the argument. In fact, articulation of international law at the
pre-trial stage may influence the prosecution to take the death penalty off the table, which has
occurred in a number of cases. Therefore, it is imperative that attorneys understand and utilize
this avenue of legal argument.

What follows is a cursory outline of international law and its sources:

SOURCES OF INTERNATIONAL LAW

Article 38 (1) of the Statute of the International Court of Justice provides a list of the sources of
international law.

1. International conventions, whether general or particular, establishing rules expressly recognized

by the contesting states.

2. International custom, as evidence of general practice accepted as law.

3. General Principles of Law recognized by civilized nations.

4. Judicial decision and the teaching of the most highly qualified publicists of the various nations, as
subsidiary means of determination of law.

TREATIES
Treaties are binding on the party. Upon signing an international instrument, the party agrees to bind itself
in good faith to ensure that nothing is done which would defeat the object and purpose of the treaty,
pending a decision on ratification.

The execution of child offenders is not only contrary to principles of American justice, but is
also contrary to international law and fundamental standards of human rights. The ultimate goal
of the international community is to abolish the death penalty under all circumstances however,
until that time there are restrictions on the categories of persons who can be executed. The
prohibition of the execution of juveniles is referenced in a number of international treaties,
declarations, and statements by international bodies, in addition to the laws of the majority of
nations.

The execution of juveniles is expressly forbidden in the following:

 International Covenant on Civil and Political Rights (ICCPR), Article 6 (5)

 The American Convention on Human Rights , Chapter 2, Article 4, Section 5,

 The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Article 68

 And the United Nations Convention on the Rights of the Child (CRC), Article 37. (See section on
Convention on the Rights of the Child)

RESOLUTIONS

Resolutions are non-binding, but are reflective of the acceptance of an international norm.

The United Nations Economic and Social Council, in Resolution 1984/50, Safeguards
Guaranteeing Protection of the Rights of Those Facing the Death Penalty , res. 1984/50 also opposed
the imposition of the death penalty on juvenile offenders. This opposition was confirmed in the
UN General Assembly’s adoption by consensus of the United Nations Standard Minimum Rules
for the Administration of Juvenile Justice.

Since 1997, the United Nations has passed resolutions calling for the abolition of the death
penalty in general, but has in so doing, specifically called on countries "not to impose it for
crimes committed by persons below 18 years of age". See, Resolution 2002/77, the Question of
the Death Penalty, reconfirmed in both Resolution 2003/67 and Resolution 2004/67, the
Question of the Death Penalty. the Question of the Death Penalty. The Commissions’ resolutions
passed with a number of dissenting votes, but as argued by Constance de la Vega in the Amicus
Curiae brief to the US Supreme Court in Beazley v. Johnson, filed July 2001, these dissenting
votes can be attributed to the fact that the Commission also called for a moratorium on the death
penalty in general. Indeed, a number of nations still allow for the use of the death penalty, which
is not prohibited generally under the ICCPR. However, Resolution 2002/92, the Rights of the
Child, adopted April 26, 2002, which solely mentions the execution of juvenile offenders in
Article 31, passed by consensus without a vote.

The resolution requests that governments comply with their;

"obligations as assumed under relevant provisions of international human rights instruments, including in
particular articles 37 and 40 of the Convention on the Rights of the Child and articles 6 and 14 of the
International Covenant on Civil and Political Rights" and to "abolish by law as soon as possible the death
penalty for those aged under 18 at the time of the commission of the offence."

This request was restated in 2003 as can be seen by Article 35 of Resolution 2003/86 which also
passed by consensus without a vote, and most recently re-affirmed in 2004 in Resolution
2004/48.

CUSTOMARY INTERNATIONAL LAW

Customary international law is binding on a nation. It is evidenced by a generally accepted state practice
and opinio juris, "accepted as law".

Custom is the second source of international law listed in the Statute of the International Court of
Justice, as confirmed by the ICJ in Nicaragua v. USA (merits), ICJ Rep, 1986, 14 at 97., custom is
constituted by two elements, the objective one of ‘general practice’ and the substantive one of
‘accepted by law’ (opinio juris). The banning of the execution of juveniles has gained widespread
respect, arguably becoming a principle of customary international law, and therefore, binding
upon all nations.

In 1999, the United Nations High Commissioner for Human Rights reaffirmed "the customary
international law ban on the execution of juveniles".

In August 2000, the United Nations Sub-Commission on the Promotion and Protection of Human
Rights adopted Resolution 2000/17 on The Death Penalty in Relation to Juvenile Offenders. Within
this document the Sub-Commission condemned the use of the death penalty against child
offenders affirming that such use "is contrary to customary international law". The document
also called on states that retain the death penalty for child offenders to change their laws as soon
as possible and in the meantime, "to remind their judges that the imposition of the death penalty
against such offenders is in violation of international law".

In 2001, the UN Commission on Human Rights called upon all retentionist states to comply fully
with their obligations under the ICCPR and the CRC, including not imposing the death penalty
for crimes committed by persons below eighteen years of age. Further, the Commission called on
countries to withdraw any reservations they have lodged to Article 6 of the ICCPR owing to the
fact that this article "enshrines the minimum rules for the protection of the right to life and the
generally accepted standards in this area". The Commission also welcomed the Sub-
Commission’s resolution of 2000.
In 2002, recapitulation can be found in Resolution 2002/92, "Rights of the Child" and Resolution
2002/47, "Human Rights in the Administration of Justice, in Particular Juvenile Justice".

The prohibition against the imposition of the death penalty on juvenile offenders was further
affirmed in 2003 in Resolution 2003/86, "Rights of the Child" and Resolution 2003/67, "The
Question of the Death Penalty". The continuous confirmation of this well established prohibition
is placing the United States under increased scrutiny and pressure from the international
community.

THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE US

Ratification of the Convention on the Rights of the Child ("CRC") (adopted by General
Assembly 1989) the most comprehensive international instrument protecting the rights of
children, is almost universal, with 192 state parties. This is a strong sign of an international
consensus that the death penalty must not be used against child offenders. The United States and
Somalia are the only non-ratifying nations. Somalia, until recently had no recognizable
government however, on May 9, 2002, Somalia signed the CRC and announced its intention to
ratify. While the United States has not, as yet, ratified the CRC, it did sign the document in 1995.
Again, as stated earlier, upon signing an international instrument, the party agrees to bind itself
in good faith to ensure that nothing is done which would defeat the purpose of the treaty, pending
the decision on ratification. This is affirmed in the Vienna Convention on the Law of Treaties
(1979) Article 18a.

The CRC has been the impetus which has encouraged many nations, including Barbados, China,
Yemen, and Zimbabwe, to change their laws raising the eligibility of the imposition of the death
penalty to 18. In fact, the Report of the Secretary General, in the year 2000 notes that all but 14
countries party to the CRC had national laws prohibiting the imposition of the death penalty on
persons who committed capital offenses when under the age of 18.

INTERNATIONAL CONTEXT

Since 1990, only eight countries have reportedly executed juveniles: Iran, Saudi Arabia, Nigeria,
the Democratic Republic of Congo (DRC), Yemen, Pakistan, China and the United States. In the
last three years this small number of nations known to have executed child offenders has further
declined to only four: China, Iran, Pakistan, and the US. In 1994, Yemen changed its law to
prohibit the execution of juveniles. The Nigerian government has asserted to the UN Sub-
Commission that the execution, which took place in 1997, was not of a juvenile (See Summary
Record of 6th Meeting of the Sub-Commission on the Promotion and Protection of Human
Rights, 52nd Sess., 4th August, 2000, E/CN.4/Sub.2/2000/SR.6 para.39 (2000)). Saudi Arabia
emphatically denies the 1992 execution of a juvenile (See Summary Record of the 53rd Meeting
of the Commission on Human Rights, 56th Sess., April, 17, 2000, E/CN.4/2000/SR.53, paras 88
and 92).

In July 2000, Pakistan moved to outlaw such executions under the Juvenile Justice System
Ordinance signed on 1 July 2000. However, it has been reported that Pakistan executed Ali Sher
on 3 November 2001 for a crime he committed at the age of 13. Since that time, President
Musharrah of Pakistan has commuted the death sentences of approximately 100 young offenders
to imprisonment. This shift away from the juvenile death penalty is supported by the Supreme
Court of Pakistan’s decision on March 26, 2003 to "peruse and define laws relating to "the
imposition of the death sentence (on) young people." Please click here for commentary. Most
recently, it has been reported that Iran executed Mohammad Mohammadzadeh on 25 January
2004 for an offense committed at the age of 17. Significantly however, in December 2003, a bill
to raise the minimum age for imposition of the death penalty to 18 was approved by the Iranian
parliament. The bill is currently awaiting approval by the highest legislative body, the Guardian
Council, in order to become law.

In December 1999, the DRC called for a moratorium on all executions. However, in January
2000, a 14 year-old child soldier was executed in the DRC. Since that time, according to OMCT-
World Organization Against Torture (Case COD 270401.1.CC, 31 May 2001, OMCT-World
Organization Against Torture), four juvenile offenders sentenced to death in the DRC in a
military court were granted stays and the sentences were commuted following an appeal from the
international community. Of the six countries, other than the US, that have reportedly executed
juvenile offenders, all have either changed their laws or the governments have denied that the
executions took place.

The United States of America is the only country in the world that regularly executes juvenile
offenders at a pace that is alarming by international standards. The USA alone executes more
juveniles than the rest of the world combined.

JUS COGENS

Under Article 53 of the Vienna Convention, a jus cogens norm is:

"a norm accepted and recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character."

The Restatement (Third) of the Foreign Relations Law agrees with this standard, asserting that
the norm is established where there is acceptance and recognition by a "large majority" of states,
even if over dissent by "a very small number of states" (Restatement (Third) of Foreign Relations
Law, §102, and reporter’s note 6 (1986), citing Report of the Proceedings of the Committee of
the Whole, May 21, 1968, UN Doc. A/Conf. 39/11 at 471-72).

In other words, the norm describes such a bare minimum of acceptable behavior that no Nation
State may derogate from it. It is argued by some that the overwhelming application of the norm
against executing juvenile offenders has rendered it a jus cogens norm. The treaties,
pronouncements, and practices demonstrate that the prohibition has become as widespread and
unquestionable as have the prohibitions against slavery, torture, and genocide. There are no
contrary expressions of opinion by any country, nor by any agency charged with the enforcement
and interpretation of the within-cited international accords.
The prohibition against the imposition of the death penalty on juvenile offenders was further
affirmed in both 2003 and 2004: Resolution 2003/86, "Rights of the Child"; Resolution 2003/67,
"The Question of the Death Penalty"; Resolution 2004/48, "Rights of the Child"; Resolution
2004/67, "The Question of the Death Penalty"; and Resolution 2004/43, "Human Rights in the
Administration of Justice, in Particular Juvenile Justice".

The continuous confirmation of this well established prohibition is placing the United States
under increased scrutiny and pressure from the international community.

Indian Practice

Indian Constitution under Article 51 provides the general obligations of India to the World by
stating that: The State shall endeavour to:

(a) to promote international peace and security

(b) maintain just and honourable relations between nations

(c) foster respect for International Law and treaty obligations in the dealings of organised
peoples with one another

(d) encourage settlement of international disputes by arbitration.

The above Article forms Part IV of the Constitution which lays down the Directive Principles of
State Policy. The provisions in Article 37 occurring in the same Part, though declares that the
directive principles in Part IV are fundamental in governance of the country and it shall be the
duty of the State to apply these principles in making laws, the provisions contained therein shall
not be enforceable in any court. It has been addressed to the executives and the legislatures of the
country, and as such are not enforceable in the courts. However, directive principles are
fundamental in governance of the country to implement them by making laws. Thus, the Indian
constitutional policy is committed to promote international peace and security and also to foster
respect for International Law and treaty obligations and to apply these principles in making laws.

No conclusion can be drawn from the Article 51 as to how far rules of International Law shall be
applied by the courts. Article 51 is simply a pledge that India will work for the promotion of
international peace and security, enhancement of International Law and treaty obligations and
settlement of international disputes by peaces means. This Article has been implemented by the
executives through the foreign policy of India. However, wordings of the Article 51 make one
thing clear, i.e. reference of the words ‘International Law’ and ‘treaty obligations’ implies due
the former refers to customary International Law.
Article 51 treats customary law and treaty law at the same footing. However, be application of
customary International Law and treaties have been discussed separately.

(a) Customary International Law—As far as the application of customs International Law
is concerned, it appears that Indian Courts follow the doctrine of incorporation, as adopted
in Great Britain. Thus, Indian courts would apply customary rules of International Law, if
they are not overridden by clear rules of domestic law[2]. If they are in conflict with the
domestic law, courts shall apply domestic law.

In Shri Krishna Sharma v. The State of West Bengal,[3] the Calcutta High Court stated that the
Indian Courts would apply rules of internal law which includes (a) the Constitution of India, (b)
the Statute enacted by the Parliament of India, and (c) the Statutes enacted by the State
Legislatures. The Court held:

“If the Indian Statutes are in conflict with any principle of International Law, the Indian Courts will
have to obey the laws enacted by the legislature of the country to which they owe their allegiance.
In interpreting and applying municipal law, the Courts will try to adopt such a construction as will
not bring it into conflict with the rights and obligations deductible from rules of internal law. If
such rules or rights and obligations are inconsistent with the positive regulation of municipal law,
the courts override the latter. It is futile in such circumstances to seek to reconcile, by strained
construction which really irreconciable.[4]”

In A.D.M., Jabalpur v. Shukla[5], Justice H.R. Khanna in his dissenting held likewise by stating
that if there is a conflict between municipal laws International Law (customary International
Law), the Courts shall give municipal law.

However, in some cases the Supreme Court applied the rule incorporation, i.e., customary rules
of International Law was applied when were not inconsistent with the domestic law.

In Gramophone Company of India Ltd. v. Birendra Bahadur Pandey[6], the observations of the
Supreme Court relate to the binding force of the customary rules of International Law. From the
decision of this case it was made clear that the Indian Courts shall apply customary International
Law in India to the extent they are not inconsistent with the municipal laws.

(b) Treaties.—As to treaties, it is submitted that they shall not be binding upon Indian Courts
unless they have been implemented by legislation. Basu says that ‘no treaty which has not been
implemented by legislation shall be binding on the municipal courts’. The above view is based
on Article 253 of the Constitution which says that Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or convention
with any country or countries or any decision made at any international conference, association
or other body.
In Birma v. State of Rajasthan,[7] the Court held that “Treaties which are part of, International
Law do not form part of the law of the land unless expressly made so by the legislative
authority”.

In Shin Kumar Sharma & others v. Union of India,[8] the Delhi High Court held: In India, treaties
do not have the force of law and consequently obligations arising therefrom will not be
enforceable in municipal courts unless backed by legislation’. Instances of other cases wherein
the above principle has been followed are: Motilal v. U.P. Governments,[9] Maganbhai v. Union of
India[10], Nirmal v. Union of India, and Jolley George Verghese v. Bank of Cochin [11]. In these
cases it was held that legislative power exclusively belongs to Parliament. They relied on Article
253 of the Constitution which says that…………. Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or convention
with any country or countries or any decision made at any international conference, association
or other body.

In Bangalore v. Union of India[12], the question was as to whether Boycott and Cook, the two
cricket players shall be allowed to visit India and to play cricket matches as members of the
English Cricket Team against India in view of their links with South Africa which was practicing
the policy of apartheid. In this case the court observed that:

“if the Parliament does not enact any law for implementing the obligations under a treaty entered
into by the Government of India with foreign countries, courts cannot compel Parliament to make
such such law the absence of such law, Court cannot also enforce obedience of the Government
of India to its treaty obligations with foreign countries.”

The above view is consonant with the dualistic theory according to which a treaty becomes a part
of the law of the land only after its transformation into that law by the legislative process.

However, in a few cases, especially in relation to human rights, international conventions have
been taken into account by the courts where it was found that there has not been any
inconsistency between international conventions and domestic law.

In Vishakha v. State of Rajasthan,[13] the Supreme Court held that the international conventions
and norms are to be read into them in the absence of enacted domestic law occupying the field
when there is no inconsistency between them. In the above case, a writ petition was filed by
certain social activists and NGOs for the realisation of the true concept of gender equality and to
prevent sexual harassment of working women in all work places, through judicial process to fill
the vacuum in existing legislation. Reference given to Article 11 of the Convention on the
Elimination of All Forms of Discrimination against Women which prohibits discrimination
against women in the field of employment i.e., equality in employment. It was observed by the
Court that equality in employment can be seriously impaired when women are subjected to
gender specific violence, such as sexual harassment in the work place. Since in India there is no
law to formulate effective measures to check the evil of sexual harassment of working women at
all work places, the Court held that the contents 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.
Any International Convention not inconsistent with the fundamental rights and in harmony with
its spirit must be read into these provisions to enlarge the meaning and content thereof, to
promote in object of the constitutional guarantee. This is implicit from Article 51(c) and the
enabling power of the Parliament to enact laws for implementing the international conventions
and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of
the Constitution. Thus, the courts in India may enforce international treaties and conventions
which are not inconsistent with Indian laws.

Application of International Law depends largely upon the legislature as well as judiciary of a
State. They are expected to take cognizance and endeavour to honour the international
obligations of the State. It has to be realised by them that neither municipal law nor International
Law is supreme, but they are concordant with each other. They both have been made to solve the
problems of human beings in different areas. If they refuse to accept the rules of International
Law, relations between the States would obviously become tense and the high ideals of
maintaining international peace and security would begin to look like utopian.

 G. India
The Constitution of India does not make any strong commitment to
principles of customary international law. Nevertheless, in Article 51 (which is
part of the judicially non-enforceable Part IV of the Constitution), the
Constitution exhorts the State of India to "endeavour to foster respect for
international law and treaty obligations in the dealings of organised peoples with
one another".
In general, due to its colonial past and since India is part of the
commonwealth, the Indian practice with respect to international law has generally
been similar to that of the United Kingdom.
The Indian judiciary has nevertheless followed a trend of finding
justifications for some of its decisions in references to general principles of
international law. This trend has been visible particularly since the late 1970s as
the Indian judiciary has tried to develop a strong body of human rights
jurisprudence. Initially, courts in India would use international law only as a tool
of interpretation. However, in the 1990s, the Supreme Court of India started
looking to principles of customary international law as a source of law. In the case
of Vellore Citizens' Welfare Forum v. Union of India,U6 the Supreme Court, relying
upon its past precedents, held that:
It is almost an accepted proposition of law that the rules of Customary
International Law which are not contrary to the municipal law shall be
deemed to have been incorporated in the domestic law and shall be
followed by the courts.
Acting upon this basis, the Supreme Court conducted a survey of
principles of customary international law in the field of environmental law, and
concluded that the "precautionary principle" and the "polluter pays principle" are
accepted as part of customary international law. The Court then reasoned that
since there was nothing in domestic environmental law that was inconsistent with
these principles, it was justified in invoking them in resolving the private dispute
before it. The decision generated a fair degree of controversy as it was viewed as
an attempt by judges to expand their discretionary powers.
Since the text of the Indian constitution is virtually silent on the role of
customary international law, and since it follows the British model, it has always
i|5 OPPENHEIM'S INTERNATIONAL LAW, supra note 5 at 61 -2.
"« (1996) 5 SCC 647.
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500

The First Geneva Convention, for the Amelioration of the Condition of the Wounded in Armies
in the Field, is one of four treaties of the Geneva Conventions. It defines "the basis on which rest
the rules of international law for the protection of the victims of armed conflicts."[1] It was first
adopted in 1864, but was significantly updated in 1906, 1929, and 1949. It is inextricably linked
to the International Committee of the Red Cross, which is both the instigator for the inception
and enforcer of the articles in these conventions.

The First Geneva Convention was instituted at a critical period in European political and military
history. Between the fall of the first Napoleon at the Battle of Waterloo in 1815 and the rise of
his nephew in the Italian campaign of 1859, the powers had maintained peace in western Europe.
[2]
Yet, with the conflict in the Crimea, war had returned to Europe, and while those troubles were
"in a distant and inaccessible region" northern Italy was "so accessible from all parts of western
Europe that it instantly filled with curious observers;" while the bloodshed was not excessive the
sight of it was unfamiliar and shocking.[2] Despite its intent of ameliorating the ravages of war
the inception of the First Geneva Convention inaugurated "a renewal of military activity on a
large scale, to which the people of western Europe… had not been accustomed since the first
Napoleon had been eliminated."[2]

The movement for an international set of laws governing the treatment and care for the wounded
and prisoners of war began when relief activist Henri Dunant witnessed the Battle of Solferino in
1859, fought between French-Piedmontese and Austrian armies in Northern Italy.[3] The
subsequent suffering of 40,000 wounded soldiers left on the field due to lack of facilities,
personnel, and truces to give them medical aid moved Dunant to action. Upon return to Geneva,
Dunant published his account Un Souvenir de Solferino and through his membership in the
Geneva Society for Public Welfare he urged the calling together of an international conference
and soon helped found the International Committee of the Red Cross in 1863.[4]

The International Committee of the Red Cross, while recognizing that it is "primarily the duty
and responsibility of a nation to safeguard the health and physical well-being of its own people,"
knew there would always, especially in times of war, be a "need for voluntary agencies to
supplement… the official agencies charged with these responsibilities in every country."[5] To
ensure that its mission was widely accepted it required a body of rules to govern its own
activities and those of the involved belligerent parties.
On August 22, 1864 several European states congregated in Geneva, Switzerland and signed the
First Geneva Convention:

The signing of the First Geneva Convention by some of the major European powers in 1864

1. Baden (now Germany)

2. Belgium
3. Denmark
4. France
5. Hesse (now Germany)
6. Italy
7. Netherlands
8. Portugal
9. Prussia (now Germany)
10. Spain
11. Switzerland
12. Württemberg (now Germany)

Norway and Sweden signed in December.

Not only was it the first, it was also the most basic and "derived its obligatory force from the
implied consent of the states which accepted and applied them in the conduct of their military
operations."[2] This first effort provided only for:

1. the immunity from capture and destruction of all establishments for the treatment of wounded
and sick soldiers,
2. the impartial reception and treatment of all combatants,
3. the protection of civilians providing aid to the wounded, and
4. the recognition of the Red Cross symbol as a means of identifying persons and equipment
covered by the agreement.[6]

Despite its basic mandates it was successful in effecting significant and rapid reforms.
Due to significant ambiguities in the articles with certain terms and concepts and even more so to
the rapidly developing nature of war and military technology the original articles had to be
revised and expanded, largely at the Second Geneva Convention in 1906 and Hague Convention
of 1899 which extended the articles to maritime warfare.[7] It was updated again in 1929 when
minor modifications were made to it. However, as Jean S. Pictet, Director of the International
Committee of the Red Cross, noted in 1951, "the law, however, always lags behind charity; it is
tardy in conforming with life’s realities and the needs of humankind," as such it is the duty of the
Red Cross "to assist in the widening the scope of law, on the assumption that… law will retain its
value," principally through the revision and expansion of these basic principles of the original
Geneva Convention.[1]

[edit] Summary of provisions

The original ten articles of the 1864 treaty[8] have been expanded to the current 64 articles. This
lengthy treaty protects soldiers that are hors de combat (out of the battle due to sickness or
injury), as well as medical and religious personnel, and civilians in the zone of battle. Among its
principal provisions:

 Article 12 mandates that wounded and sick soldiers who are out of the battle should be
humanely treated, and in particular should not be killed, injured, tortured, or subjected to
biological experimentation. This article is the keystone of the treaty, and defines the principles
from which most of the rest the treaty is derived, [9] including the obligation to respect medical
units and establishments (Chapter III), the personnel entrusted with the care of the wounded
(Chapter IV), buildings and material (Chapter V), medical transports (Chapter VI), and the
protective sign (Chapter VII).
 Article 15 mandates that wounded and sick soldiers should be collected, cared for, and
protected, though they may also become prisoners of war.
 Article 16 mandates that parties to the conflict should record the identity of the dead and
wounded, and transmit this information to the opposing party.
 Article 9 allows the International Red Cross "or any other impartial humanitarian organization"
to provide protection and relief of wounded and sick soldiers, as well as medical and religious
personnel.

For a detailed discussion of each article of the treaty, see the original text[10] and the commentary.
[9]
There are currently 194 countries party to the 1949 Geneva Conventions, including this first
treaty but also including the other three

The Geneva Conventions comprise four treaties and three additional protocols that set the
standards in international law for humanitarian treatment of the victims of war. The singular term
Geneva Convention refers to the agreements of 1949, negotiated in the aftermath of World War
II, updating the terms of the first three treaties and adding a fourth treaty. The language is
extensive, with articles defining the basic rights of those captured during a military conflict,
establishing protections for the wounded, and addressing protections for civilians in and around a
war zone. The treaties of 1949 have been ratified, in whole or with reservations, by 194
countries.[1]

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their
“ family rights, their religious convictions and practices, and their manners and customs. They shall,
at all times, be humanely treated, and shall be protected, especially against all acts of violence or
threats thereof and against insults and public curiosity. Women shall be especially protected
against any attack on their honour, in particular against rape, enforced prostitution, or any form of
indecent assault. Without prejudice to the provisions relating to their state of health, age and sex,
all protected persons shall be treated with the same consideration by the Party to the conflict in
whose power they are, without any adverse distinction based, in particular, on race, religion or
political opinion. However, the Parties to the conflict may take such measures of control and
security in regard to protected persons as may be necessary as a result of the war

The Geneva Conventions do not address the use of weapons of war, as this is covered by the
Hague Conventions of 1899 and 1907 and the Geneva Protocol.

In 1862, Henri Dunant published his book, Memoir of Solferino, on the horrors of war.[2] His
wartime experiences inspired Dunant to propose:

1. a permanent relief agency for humanitarian aid in times of war, and

2. a government treaty recognizing the neutrality of the agency and allowing it to provide aid in a
war zone.

The former proposal led to the establishment of the Red Cross. The latter led to the First Geneva
Convention. For both of these accomplishments, Henri Dunant became corecipient of the first
Nobel Peace Prize in 1901.[3][4]

The ten articles of this first treaty were initially adopted on August 22, 1864 by twelve nations.[5]
Clara Barton was instrumental in campaigning for the ratification of the First Geneva
Convention by the United States, which eventually ratified it in 1882.[6]

The second treaty was first adopted in the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armies at Sea, concluded on July 6, 1906 and specifically
addressed members of the Armed Forces at sea.[7] It was continued in the Geneva Convention for
the Amelioration of the Condition of the Wounded and Sick in Armies at Sea, concluded on July
27, 1929 and entered into effect on June 19, 1931.[8] The third treaty was first adopted in the
Geneva Convention relative to the Treatment of Prisoners of War, concluded on July 27, 1929
and entered into effect on June 19, 1931.[9] The fourth treaty was inspired by the war criminals of
the Nuremberg Trials and first adopted in 1949. It reaffirmed the prior three treaties and added
many new terms, including the protection of civilians during wartime.
Despite the length of these documents, they were found over time to be incomplete. In 1977, two
protocols were adopted that extended the terms of the 1949 treaty with additional protections. In
2005, a third brief protocol was added establishing an additional protective sign for medical
services, the Red Crystal, as an alternative to the ubiquitous Red Cross and Red Crescent
emblems, for those countries that find them objectionable.

[edit] The conventions and their agreements

The Geneva Conventions comprise rules that apply in times of armed conflict and seek to protect
people who are not or are no longer taking part in hostilities, for example:

 wounded or sick fighters

 prisoners of war
 civilians
 medical and religious personnel

[edit] Conventions

In diplomacy, the term convention does not have its common meaning as an assembly of people.
Rather, it is used in diplomacy to mean an international agreement, or treaty. The first three
Geneva Conventions were revised and expanded in 1949, and the fourth was added at that time.

 First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 1864
 Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea, 1906
 Third Geneva Convention relative to the Treatment of Prisoners of War, 1929
 Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949

The whole set is referred to as the "Geneva Conventions of 1949" or simply the "Geneva
Convention".

[edit] Protocols

The 1949 conventions have been modified with three amendment protocols:

 Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts

 Protocol II (1977) relating to the Protection of Victims of Non-International Armed Conflicts
 Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem

[edit] Application
The Geneva Conventions apply at times of war and armed conflict to governments who have
ratified its terms. The details of applicability are spelled out in Common Articles 2 and 3. The
topic of applicability has generated some controversy. When the Geneva Conventions apply,
governments must surrender a certain degree of their national sovereignty to comply with
international law. These laws may not be entirely harmonious with their national constitution or
their cultural values. Despite the advantages offered by the Conventions to individuals, political
pressures may cause the governments to be reluctant in accepting its responsibilities.

[edit] Common Article 2 relating to International Armed Conflicts

This article states that the Geneva Conventions apply to all cases of international conflict, where
at least one of the warring nations have ratified the Conventions. Primarily:

 The Conventions apply to all cases of declared war between signatory nations. This is the
original sense of applicability, which predates the 1949 version.
 The Conventions apply to all cases of armed conflict between two or more signatory nations,
even in the absence of a declaration of war. This language was added in 1949 to accommodate
situations that have all the characteristics of war without the existence of a formal declaration
of war, such as a police action.[10]
 The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but
only if the opposing nation "accepts and applies the provisions" of the Conventions. [10]

Article 1 of Protocol I further clarifies that armed conflict against colonial domination and
foreign occupation also qualifies as an international conflict.

When the criteria of international conflict have been met, the full protections of the Conventions
are considered to apply.

[edit] Common Article 3 relating to Non-International Armed Conflict

This article states that the certain minimum rules of war also apply to armed conflicts that are not
of an international character, but that are contained within the boundaries of a single country.
The applicability of this article rests on the interpretation of the term armed conflict.[10] For
example it would apply to conflicts between the Government and rebel forces, or between two
rebel forces, or to other conflicts that have all the characteristics of war but that are carried out
within the confines of a single country. A handful of individuals attacking a police station would
not be considered an armed conflict subject to this article, but only subject to the laws of the
country in question.

The provisions of the entire Geneva Convention are not applicable in this situation, but only a
limited list of provisions contained within the language of Article 3,[10] and additionally within
the language of Protocol II. The rationale for the limitation is that many articles would otherwise
conflict with the rights of a Sovereign State. In summary:

 Persons taking no active part in hostilities should be treated humanely (including military
persons who have ceased to be active as a result of sickness, injury, or detention).
 The wounded and sick shall be collected and cared for and treated with respect.

[edit] Enforcement
[edit] Protecting powers

The term protecting power has a specific meaning under these Conventions. A protecting power
is a state that is not taking part in the armed conflict, but that has agreed to look after the interests
of a state that is a party to the conflict. The protecting power is a mediator enabling the flow of
communication between the parties to the conflict. The protecting power also monitors
implementation of these Conventions, such as by visiting the zone of conflict and prisoners of
war. The protecting power must act as an advocate for prisoners, the wounded, and civilians.

[edit] Grave breaches

Not all violations of the treaty are treated equally. The most serious crimes are termed grave
breaches, and provide a legal definition of a war crime. Grave breaches of the Third and Fourth
Geneva Conventions include the following acts if committed against a person protected by the
convention:

 willful killing, torture or inhumane treatment, including biological experiments

 willfully causing great suffering or serious injury to body or health
 compelling someone to serve in the forces of a hostile power
 willfully depriving someone of the right to a fair trial

Also considered grave breaches of the Fourth Geneva Convention are the following:

 taking of hostages
 extensive destruction and appropriation of property not justified by military necessity and
carried out unlawfully and wantonly
 unlawful deportation, transfer, or confinement. [11]

Nations who are party to these treaties must enact and enforce legislation penalizing any of these
crimes.[12] Nations are also obligated to search for persons alleged to commit these crimes, or
ordered them to be committed, and to bring them to trial regardless of their nationality and
regardless of the place where the crimes took place.

The principle of universal jurisdiction also applies to the enforcement of grave breaches. Toward
this end, the International Criminal Tribunal for Rwanda and the International Criminal Tribunal
for the former Yugoslavia were established by the United Nations to prosecute alleged
violations.

[edit] The Geneva Conventions today

Although warfare has changed dramatically since the Geneva Conventions of 1949, they are still
considered the cornerstone of contemporary International Humanitarian Law.[13] They protect
combatants who find themselves hors de combat, and they protect civilians caught up in the zone
of war. These treaties came into play for all recent international armed conflicts, including the
War in Afghanistan (2001–present), the 2003 invasion of Iraq, the invasion of Chechnya (1994–
present), and the 2008 War in Georgia.
Modern warfare continues to evolve, and a growing proportion of recent armed conflicts are of a
non-international character[14] (for instance, the Sri Lankan Civil War, the Sudanese Civil War,
and the Colombian Armed Conflict). Common Article 3 deals with these situations,
supplemented by Protocol II (1977). These set out minimum legal standards that must be
followed for internal conflicts. International tribunals, particularly the International Criminal
Tribunal for the former Yugoslavia, have helped to clarify international law in this area.[15] In the
1999 Prosecutor v. Dusko Tadic judgement, the International Criminal Tribunal for the Former
Yugoslavia ruled that grave breaches apply not only to international conflicts, but also to internal
armed conflict. Further, those provisions are considered customary international law, allowing
war crimes prosecution even over groups that have not formally accepted the terms of the
Geneva Conventions.

Second Geneva Convention

Summary of Provisions
The treaty is a lengthy document consisting of 63 articles. The most essential provisions of
the treaty are:

 Articles 12 and 18 requires all parties to protect and care for the wounded, sick, and
shipwrecked.
 Article 21 allows appeals to be made to neutral vessels to help collect and care for the
wounded, sick, and shipwrecked. The neutral vessels cannot be captured.
 Articles 36 and 37 protect religious and medical personnel serving on a combat ship.
 Article 22 states that hospital ships cannot be used for any military purpose, and owing to
their humanitarian mission, they cannot be attacked or captured.
 Article 14 clarifies that although a warship cannot capture a hospital ship's medical staff, it can
hold the wounded, sick, and shipwrecked as prisoners of war.

For a detailed discussion of each article of the treaty, see the original text[1] and the
commentary.[2] There are currently 194 countries party to the 1949 Geneva Conventions,
including this second treaty but also including the other three
[
Laws of War: Second Geneva Convention

For the Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea, August 12,
1949
Entry Into Force: 21 October 1950.
The undersigned Plenipotentiaries of the Governments represented at the
Diplomatic Conference held at Geneva from April 21 to August 12, 1949, for the
purpose of revising the Xth Hague Convention of October 18, 1907, for the
Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 1906,
have agreed as follows

Only relevant chapters, articles, and sections have been reproduced.

CHAPTER I - GENERAL PROVISIONS

Article 3
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by sickness,
wounds, detention, or any other cause, shall in all circumstances be treated
humanely, without any adverse distinction founded on race, colour, religion or faith,
sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in
any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity,
in particular, humiliating and degrading treatment; (d) the passing of sentences
and the carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.

(2) The wounded, sick, and shipwrecked shall be collected and cared for.
CHAPTER II - WOUNDED, SICK AND SHIPWRECKED

Article 12
Members of the armed forces and other persons mentioned in the following Article,
who are at sea and who are wounded, sick or shipwrecked, shall be respected and
protected in all circumstances, it being understood that the term "shipwreck"
means shipwreck from any cause and includes forced landings at sea by or from
aircraft.

Such persons shall be treated humanely and cared for by the Parties to the conflict
in whose power they may be, without any adverse distinction founded on sex, race,
nationality, religion, political opinions, or any other similar criteria. Any attempts
upon their lives, or violence to their persons, shall be strictly prohibited; in
particular, they shall not be murdered or exterminated, subjected to torture or to
biological experiments; they shall not wilfully be left without medical assistance and
care, nor shall conditions exposing them to contagion or infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to be
administered.

Women shall be treated with all consideration due to their sex.

CHAPTER XIII - REPRESSION OF ABUSES AND INFRACTIONS

Article 51
Grave breaches to which the preceding Article relates shall be those involving any
of the following acts, if committed against persons or property protected by the
Convention: wilful killing, torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health, and
extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly.

Article 52
No High Contracting Party shall be allowed to absolve itself or any other High
Contracting Party of any liability incurred by itself or by another High Contracting
Party in respect of breaches referred to in the preceding Article.

Articles 51 and 52 of Geneva Convention II are respectively identical to

Articles 50 and 51 of Geneva Convention I.

Third Geneva Convention

The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four
treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in
1949. It defines humanitarian protections for prisoners of war.

Part I: General provisions

This part sets out the overall parameters for GCIII:

 Articles 1 and 2 cover which parties are bound by GCIII

 Article 2 specifies when the parties are bound by GCIII
o That any armed conflict between two or more "High Contracting Parties" is covered by
GCIII;
o That it applies to occupations of a "High Contracting Party";
o That the relationship between the "High Contracting Parties" and a non-signatory, the
party will remain bound until the non-signatory no longer acts under the strictures of
the convention. "...Although one of the Powers in conflict may not be a party to the
present Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention in relation to
the said Power, if the latter accepts and applies the provisions thereof."
 Article 3 has been called a "Convention in miniature." It is the only article of the Geneva
Conventions that applies in non-international conflicts.[1] It describes minimal protections which
must be adhered to by all individuals within a signatory's territory during an armed conflict not
of an international character (regardless of citizenship or lack thereof): Noncombatants,
combatants who have laid down their arms, and combatants who are hors de combat (out of the
fight) due to wounds, detention, or any other cause shall in all circumstances be treated
humanely, including prohibition of outrages upon personal dignity, in particular humiliating and
degrading treatment. The passing of sentences must also be pronounced by a regularly
constituted court, affording all the judicial guarantees which are recognized as indispensable by
civilized peoples. Article 3's protections exist even if one is not classified as a prisoner of war.
Article 3 also states that parties to the internal conflict should endeavour to bring into force, by
means of special agreements, all or part of the other provisions of GCIII.
 Article 4 defines prisoners of war to include:
o 4.1.1 Members of the armed forces of a Party to the conflict and members of militias of
such armed forces
o 4.1.2 Members of other militias and members of other volunteer corps, including those
of organized resistance movements, provided that they fulfill all of the following
conditions:
 that of being commanded by a person responsible for his subordinates;
 that of having a fixed distinctive sign recognizable at a distance (there are
limited exceptions to this among countries who observe the 1977 Protocol I);
 that of carrying arms openly;
 that of conducting their operations in accordance with the laws and customs of
war.
o 4.1.3 Members of regular armed forces who profess allegiance to a government or an
authority not recognized by the Detaining Power.
o 4.1.4 Civilians who have non-combat support roles with the military and who carry a
valid identity card issued by the military they support.
 o 4.1.5 Merchant marine and the crews of civil aircraft of the Parties to the conflict, who
do not benefit by more favourable treatment under any other provisions of
international law.
o 4.1.6 Inhabitants of a non-occupied territory, who on the approach of the enemy
spontaneously take up arms to resist the invading forces, without having had time to
form themselves into regular armed units, provided they carry arms openly and respect
the laws and customs of war.
o 4.3 makes explicit that Article 33 takes precedence for the treatment of medical
personnel of the enemy and chaplains of the enemy.
 Article 5 specifies that prisoners of war (as defined in article 4) are protected from the time of
their capture until their final repatriation. It also specifies that when there is any doubt whether
a combatant belongs to the categories in article 4, they should be treated as such until their
status has been determined by a competent tribunal.

[edit] Part II: General Protection of Prisoners of War

This part of the convention covers the status of prisoners of war.

Article 12 states that prisoners of war are the responsibility of the state not the persons who
capture them and that they may not be transferred to a state that is not party to the Convention.

Articles 13 to 16 state that prisoners of war must be treated humanely without any adverse
discrimination and that their medical needs must be met.

[edit] Part III: Captivity

This part is divided into several sections:

Section 1 covers the beginning of captivity (Articles 17–20). It dictates what information a
prisoner must give and interrogation methods that the detaining power may use "No physical or
mental torture, nor any other form of coercion". It dictates what private property a prisoner of
war may keep and that the prisoner of war must be evacuated from the combat zone as soon as
possible.

Section 2 covers the internment of prisoners of war and is broken down into 8 chapters which
cover:

1. General observations (Articles 21–24)

2. Quarters, food and clothing (Articles 25–28)
3. Hygiene and medical attention (Articles 29–32)
4. The treatment of enemy medical personnel and chaplains retained to assist prisoners of war
(Article 33)
5. Religious, intellectual and physical activities (Articles 34–38)
6. Discipline (Articles 39–42)
7. Military rank (Articles 43–45)
8. Transfer of prisoners of war after their arrival in a camp (Articles 46–48)
Section 3 (Articles 49–57) covers the type of labour that a prisoner of war may be compelled to
do, taking such factors as rank, age, and sex into consideration, and that which because it is
unhealthy or dangerous can only be done by prisoners of war who volunteer for such work. It
goes into details about such things as the accommodation, medical facilities, and that even if the
prisoner of war works for a private person the military authority remains responsible for them.
Rates of pay for work done are covered by Article 62 in the next section.

Section 4 (Articles 58–68) covers the financial resources of prisoners of war.

Section 5 (Articles 69–74) covers the relations of prisoners of war with the exterior. This covers
the frequency of which a prisoner of war can send and receive post, including parcels. The
Detaining power has the right to censor all mail, but must do so as quickly as possible.

Section 6 covers the relations between prisoners of war and the detaining authorities: it is broken
down into three chapters.

1. Complaints of prisoners of war respecting the conditions of captivity(Article 78)

2. Prisoner of war representatives (Articles 79–81). Where there is no senior officer available in a
camp the section stipulates that "prisoners shall freely elect by secret ballot, [a representative]
every six months". The representative, whether the senior officer or an elected person, acts as a
conduit between the authorities of the detaining power and the prisoners.
3. The sub-section on "Penal and disciplinary sanctions" is subdivided into three parts:
1. General provisions (Articles 82–88)
2. Disciplinary sanctions (Articles 89–98)
3. Juridicial proceedings (Articles 99–108)

[edit] Part IV: Termination of Captivity

This part is divided into several sections:

Section 1 (Articles 109–117) covers the direct repatriation and accommodation in neutral
countries.

Section 2 (Articles 118–119) covers the release and repatriation of prisoners of war at the close
of hostilities.

Section 3 (Articles 120–121) covers the death of a prisoner of war.

[edit] Part V: Information Bureau and Relief Societies for

Prisoners of War
The Information Bureau is an organization that must be set up by the Detaining Power to
facilitate the sharing of information by the parties to conflict and neutral powers as required by
the various provisions of the Third Geneva Convention. It will correspond freely with "A Central
Prisoners of War Information Agency ... created in a neutral country" to act as a conduit with the
Power to which the prisoners of war owe their allegiance. The provisions of this part are
contained in Articles 122 to 125.

The central prisoners of war information agency was created within the Red Cross.

[edit] Part VI: Execution of the Convention

Consists of two sections.

Section 1 (Articles 126–132) General provisions.

Section 2 (Articles 133–143) Final provisions.

Fourth Geneva Convention

The Geneva Convention relative to the Protection of Civilian Persons in Time of War,
commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of
the four treaties of the Geneva Conventions. It was adopted in August 1949, and defines
humanitarian protections for civilians in a war zone, and outlaws the practice of total war. There
are currently 194 countries party to the 1949 Geneva Conventions, including this fourth treaty
but also including the other three.[1]

In 1993, the United Nations Security Council adopted a report from the Secretary-General and a
Commission of Experts which concluded that the Geneva Conventions had passed into the body
of customary international law, thus making them binding on non-signatories to the Conventions
whenever they engage in armed conflicts.[2]

Part I. General Provisions

This sets out the overall parameters for GCIV:

 Article 2 states that signatories are bound by the convention both in war, armed conflicts where
war has not been declared and in an occupation of another country's territory.
 Article 3 states that even where there is not a conflict of international character the parties must
as a minimum adhere to minimal protections described as: noncombatants, members of armed
forces who have laid down their arms, and combatants who are hors de combat (out of the
fight) due to wounds, detention, or any other cause shall in all circumstances be treated
humanely, with the following prohibitions:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;
 (b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment

(d) the passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.

 Article 4 defines who is a Protected person: Persons protected by the Convention are those who,
at a given moment and in any manner whatsoever, find themselves, in case of a conflict or
occupation, in the hands of a Party to the conflict or Occupying Power of which they are not
nationals. But it explicitly excludes Nationals of a State which is not bound by the Convention
and the citizens of a neutral state or an allied state if that state has normal diplomatic relations
within the State in whose hands they are.
 A number of articles specify how Protecting Powers, ICRC and other humanitarian organizations
may aid Protected persons.

Protected person is the most important definition in this section because many of the articles in
the rest of GCIV only apply to Protected persons.

[edit] Part II. General Protection of Populations Against

Certain Consequences of War
Article 13. The provisions of Part II cover the whole of the populations of the countries in
conflict, without any adverse distinction based, in particular, on race, nationality, religion or
political opinion, and are intended to alleviate the sufferings caused by war.

[edit] Part III. Status and Treatment of Protected Persons

[edit] Section I. Provisions common to the territories of the parties to the conflict and to
occupied territories

Article 32. A protected person/s shall not have anything done to them of such a character as to
cause physical suffering or extermination ... the physical suffering or extermination of protected
persons in their hands. This prohibition applies not only to murder, torture, corporal
punishments, mutilation and medical or scientific experiments not necessitated by the medical
treatment' While popular debate remains on what constitutes a legal definition of torture (see
discussion on the Torture page), the ban on corporal punishment simplifies the matter; even the
most mundane physical abuse is thereby forbidden by Article 32, as a precaution against
alternate definitions of torture.

The prohibition on scientific experiments was added, in part, in response to experiments by

German and Japanese doctors during World War II, of whom Josef Mengele was the most
infamous.
[edit] Collective punishments

Article 33. No protected person may be punished for an offense he or she has not personally
committed. Collective penalties and likewise all measures of intimidation or of terrorism are
prohibited.
Pillage is prohibited.
Reprisals against protected persons and their property are prohibited.

Under the 1949 Geneva Conventions collective punishments are a war crime. By collective
punishment, the drafters of the Geneva Conventions had in mind the reprisal killings of World
Wars I and World War II. In the First World War, Germans executed Belgian villagers in mass
retribution for resistance activity. In World War II, Nazis carried out a form of collective
punishment to suppress resistance. Entire villages or towns or districts were held responsible for
any resistance activity that took place there. Additional concern also addressed the United States'
atomic bombings of Hiroshima and Nagasaki, which, in turn, caused death and disease to
millions[citation needed] of Japanese civilians as well as their decedents[sic][citation needed]. The
conventions, to counter this, reiterated the principle of individual responsibility. The
International Committee of the Red Cross (ICRC) Commentary to the conventions states that
parties to a conflict often would resort to "intimidatory measures to terrorize the population" in
hopes of preventing hostile acts, but such practices "strike at guilty and innocent alike. They are
opposed to all principles based on humanity and justice."

Additional Protocol II of 1977 explicitly forbids collective punishment. But as fewer states have
ratified this protocol than GCIV, GCIV Article 33 is the one more commonly quoted.

[edit] Section III. Occupied territories

Articles 47-78 impose substantial obligations on occupying powers. As well as numerous

provisions for the general welfare of the inhabitants of an occupied territory, an occupier may not
forcibly deport protected persons, or deport or transfer parts of its own civilian population into
occupied territory (Art.49).

[show]Article 49 - Population transfer

[show]Article 50 - Care and education of children

[show]Article 53 - Destruction of property

[show]Article 56 - Medical services

[edit] Part IV. Execution of the Convention

This part contains "the formal or diplomatic provisions which it is customary to place at the end
of an international Convention to settle the procedure for bringing it into effect are grouped
together under this heading (1). They are similar in all four Geneva Conventions Commentary:
Part IV : Execution of the convention #Section II : Final provisions, Retrieved 2008-10-28</ref>

Hague Conventions of 1899 and 1907

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The Hague Conventions were two international treaties negotiated at international peace
conferences at The Hague in the Netherlands: The First Hague Conference in 1899 and the
Second Hague Conference in 1907. Along with the Geneva Conventions, the Hague
Conventions were among the first formal statements of the laws of war and war crimes in the
nascent body of secular international law. A third conference was planned for 1914 and later
rescheduled for 1915, but never took place due to the start of World War I. The German
international law scholar and neo-Kantian pacifist Walther Schücking called the assemblies the
"international union of Hague conferences."[1] and saw them as as nucleus of an international
federation that was to meet at regular intervals to administer justice and develop international
law procedures for the peaceful settlement of disputes, asserting "that a definite political union of
the states of the world has been created with the First and Second Conferences." The various
agencies created by the Conferences, like the Permanent Court of Arbitration, "are agents or
organs of the union."[2]

A major effort in both the conferences was to create a binding international court for compulsory
arbitration to settle international disputes, which was considered necessary to replace the
institution of war. This effort, however, failed to realize success either in 1899 or in 1907. The
First Conference was generally a success and was focused on disarmament efforts. The Second
Conference failed to create a binding international court for compulsory arbitration but did
enlarge the machinery for voluntary arbitration, and established conventions regulating the
collection of debts, rules of war, and the rights and obligations of neutrals. Along with
disarmament and obligatory arbitration, both conferences included negotiations concerning the
laws of war and war crimes. Many of the rules laid down at the Hague Conventions were
violated - particularly by the Germans - in the First World War[citation needed].

Most of the great powers, including the United States, Britain, Russia, France, China, and Persia,
favored a binding international arbitration, but the condition was that the vote should be
unanimous, and a few countries, led by Germany, vetoed the idea.

Hague Convention of 1899

The peace conference was proposed on August 29, 1898 by Russian Czar Nicholas II.[3] Nicholas
and Count Mikhail Nikolayevich Muravyov, his foreign minister, were instrumental in initiating
the conference. It was held from May 18, 1899 and signed on July 29 of that year, and entered
into force on September 4, 1900. The Hague Convention of 1899 consisted of four main sections
and three additional declarations (the final main section is for some reason identical to the first
additional declaration):

 I - Pacific Settlement of International Disputes

 II - Laws and Customs of War on Land
 III - Adaptation to Maritime Warfare of Principles of Geneva Convention of 1864
 IV - Prohibiting Launching of Projectiles and Explosives from Balloons
 Declaration I - On the Launching of Projectiles and Explosives from Balloons
 Declaration II - On the Use of Projectiles the Object of Which is the Diffusion of Asphyxiating or
Deleterious Gases
 Declaration III - On the Use of Bullets Which Expand or Flatten Easily in the Human Body

The main effect of the Convention was to ban the use of certain types of modern technology in
war: bombing from the air, chemical warfare, and hollow point bullets. The Convention also set
up the Permanent Court of Arbitration.

[edit] Hague Convention of 1907

The second conference, in 1907, was generally a failure, with few major decisions. However, the
meeting of major powers did prefigure later 20th-century attempts at international cooperation.

The second conference was called at the suggestion of Pres. Theodore Roosevelt in 1904, but
postponed because of the war between Russia and Japan. The Second Peace Conference was
held from June 15 to October 18, 1907, to expand upon the original Hague Convention,
modifying some parts and adding others, with an increased focus on naval warfare. The British
tried to secure limitation of armaments, but were defeated by the other powers, led by Germany,
which feared a British attempt to stop the growth of the German fleet. Germany also rejected
proposals for compulsory arbitration. However, the conference did enlarge the machinery for
voluntary arbitration, and established conventions regulating the collection of debts, rules of war,
and the rights and obligations of neutrals.

The Final Agreement was signed on October 18, 1907, and entered into force on January 26,
1910. It consisted of thirteen sections, of which twelve were ratified and entered into force:

 I — The Pacific Settlement of International Disputes

 II — The Limitation of Employment of Force for Recovery of Contract Debts
 III — The Opening of Hostilities
 IV — The Laws and Customs of War on Land
 V — The Rights and Duties of Neutral Powers and Persons in Case of War on Land
 VI — The Status of Enemy Merchant Ships at the Outbreak of Hostilities
 VII — The Conversion of Merchant Ships into War-Ships
 VIII — The Laying of Automatic Submarine Contact Mines
 IX — Bombardment by Naval Forces in Time of War
 X — Adaptation to Maritime War of the Principles of the Geneva Convention
 XI — Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War
 XII — The Creation of an International Prize Court [Not Ratified] [4]
  XIII - The Rights and Duties of Neutral Powers in Naval War

Two declarations were signed as well:

 Declaration I — extending Declaration II from the 1899 Conference to other types of aircraft [5]
 Declaration II—- on the obligatory arbitration

The Brazilian delegation was led by the statesman Ruy Barbosa, whose contribution was
essential for the defense of the principle of legal equality of nations.[6] The British delegation
included the 11th Lord Reay (Donald James Mackay), Sir Ernest Satow and Eyre Crowe. The
Russian delegation was led by Fyodor Martens.

[edit] Geneva Protocol to Hague Convention

Though not negotiated in The Hague, the Geneva Protocol to the Hague Convention is
considered an addition to the Convention. Signed on June 17, 1925 and entering into force on
February 8, 1928, it permanently bans the use of all forms of chemical and biological warfare in
its single section, entitled Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare. The protocol grew out of
the increasing public outcry against chemical warfare following the use of mustard gas and
similar agents in World War I, and fears that chemical and biological warfare could lead to
horrific consequences in any future war. The protocol has since been augmented by the
Biological Weapons Convention (1972) and the Chemical Weapons Convention (1993)

and rights for individuals in the contemporary Greek society. However, Cicero
“provided the philosophical foundations for later theories of natural law…”.
Later, religious Universalists like Thomas Aquinas based their religious arguments
on the fundamental value of human dignity and universality of natural law. This
idea of natural rights continued in ancient Rome, where the Roman jurist Ulpian
believed that natural rights belonged to every person, whether they were a Roman
citizen or not. These writings, however, had oblique reference to human rights
thinking rather than the one we find in the subsequent contributions.
Despite this principle, there are fundamental differences between human rights
today and natural rights of the past. For example, it was seen as perfectly
natural to keep slaves, and such a practice goes counter to the ideas of freedom
and equality that we associate with human rights today. In the middle ages and
later the renaissance, the decline in power of the church led society to place
more of an emphasis on the individual, which in turn caused the shift away from
feudal and monarchist societies, letting individual expression flourish.
Social Contract and Positive Law
The next fundamental contribution to the philosophy of human rights arose from the
idea of positive law. Thomas Hobbes saw natural law as being very vague and hollow
and too open to vast differences of interpretation. Hobbes wanted to make the
Leviathan all-powerful to protect individuals from, the anarchical state of nature
through contract. For, he believed that human beings were basically greedy and
violent creatures who lived on anarchy in their natural state. He was, however,
conscious of the need to ensure the right to security to the individuals to thwart
the exploitation by the rulers; and state came into being because of the
recognition of this basic need. The individuals in the civil society acquired
certain rights that are inalienable and inviolable that the ruler has to protect
those rights. In case the ruler does not perform the task of protecting those
rights he has to go. This is the essence of Hobbes contribution in empowering
individuals against the Leviathan who might be all powerful.
Locke’s ideas laid the foundation for human rights. He believed that in the state
of nature humans were basically good, peaceful and mercantile. He felt that the
need for the protection of right to life and property necessitates the creation of
a state. He insisted on having a ruler who might act as an arbiter to settle
dispute that might arise over trade and property. Rousseau “saw the first virtue
of the social contract as its capacity to organize in collective defence of
liberty and order…(T) he social contract establishes a community with a potential
for doing justice, thereby giving the citizens the morality which had been wanting
in the state of nature”.
Contributions of Kant and Paine
Kant made human rights distinct from other rights like civil rights, international
rights, and cosmopolitan rights. He believed in the oneness of human race. To
quote him:
“… the right to resort, for all men are entitled to present themselves in
the society of others by virtue of their tight to communal possession of the
earth’s surface. Since the earth is a globe, they cannot disperse over an infinite
area, but must necessarily tolerate one another’s.”
Thomas Paine believed in the sovereignty of individual and argued for the minimal
interference of the state. Like Locke he was deeply committed to the inalienable
rights of man -- rights of mind and rights of happiness and freedom.
Marxian contribution
Karl Marx was highly critical of the natural rights of individuals. He argued that
these rights were idealistic and ahistorical. To him, in the society where the
capitalist monopolizes the means of production and distribution, ideas like

individual rights are illusory. These rights are meant to cater to the interest of
the ruling bourgeois class only. The proletariats would have nothing but their
chains. This Marxist paradigm is considered to be one of the most formidable
theoretical tools to analyse the human rights abuses.
Rawls’ contribution
The most important contribution to the contemporary thinking on human rights is
that of John Rawls’ A Theory of Justice.
Rawls’s idea of justice consists of two principles: The First Principle is
that “ each person is to have an equal right to the most extensive total system of
equal basic liberties compatible with similar system of liberty for all”. This
implies equality of political rights to all citizens in a democratic country.
These rights are necessary for the development of individual liberty. Rawls may
not have enumerated the basic liberties in detail though, by and large, they
include political liberty, freedom of speech and assembly and liberty of
conscience and thought, freedom of the person and freedom from arbitrary arrest
and seizure.
The second principle of Rawls’ justice deals with distributive justice.
According to this, ‘ Social and economic inequalities are to be arranged so that
they are both (a) to the greatest benefit of the least advantaged, consistent with
a just saving principle and ( b) attached to positions and offices open to all
under condition of fair equality of which include rights, liberties,
Legal Documents
Abstract ideas regarding human rights and their relation to the will of nature
have been transformed into concrete laws by various legal documents--- British
Magna Carta, the English Bill of Rights, French Declaration of the Rights of Man,
American Bill of Rights , the Geneva Convention , the Universal Declaration of
Human Rights etc.-- that specifically described these rights in details.
The English Bill of Rights made the King subject to the rule of law, like
any citizen, instead of claiming to be the law's (divine) source. It protected
some basic rights to justice and guaranteed juries, impartial courts and
independent judges.
The American Declaration of Independence in 1776 asserted that governments were
established by the consent of the people to protect rights. And it expressed these
rights in the terms that:
'all men are created equal, that they are endowed by their Creator with certain
inalienable rights, that among these are Life, Liberty and the pursuit of
Happiness.' Governments that did not carry out their protective role could be
overthrown. The Declaration did not, in fact, extend human rights to all human
beings. The first US Constitution expressly preserved the institution of slavery
and did not recognize the equal rights of women. Many 'rights' were added to the
US Constitution over the years.
In 1788, as a result of the French Revolution, the Declaration of the Rights of
man and of Citizens asserted the primacy of natural rights in similarly
inspirational terms to the US Declaration of Independence.
Yet in the Terror that soon followed the Revolution, with all its hopes,
thousands unjustly lost their lives or suffered greatly in the name of 'Liberty.'
In 1945, leaders of the world's nations met in San Francisco to form the
United Nations. Inspired by the great South African pre-apartheid leader Field-
Marshall Smuts, they included in the preamble to the Charter of the UN, an
important reference to human rights. The relevant part of the preamble said: "We
the peoples of the United Nations [are] determined… to reaffirm faith in
fundamental human rights, in the dignity and worth of the human person, in the
equal rights of men and women and of nations large and small". This reference to
human rights was followed up by six references throughout the UN Charter's
operative provisions to human rights and fundamental freedoms.
In addition, largely as a result of pressure brought to bear on the political
leaders by some 42 United States non-government organizations, Article 68 was
included. It required the Economic and Social Council to set up commissions in the

human rights and economic and social fields. The outcome was the establishment of a Commission on Human
Rights. Thus the Commission is one of the very few bodies to draw its authority directly from the Charter of the United
Nations.
T
he
Commission then turned to formulating the declaration. It decided to name it the
Universal Declaration of Human Rights (UDHR). The very name emphasises the UDHR to
set a standard of rights for all people everywhere - whether male or female, black
or white, communist or capitalist, victor or vanquished, rich or poor, for members
of a majority or a minority in the community. (There are 30 Articles in the
Declaration, of which 17 could be regarded as relating to civil and political
rights and 8 to economic and social rights).
On 10 December 1948, the General Assembly endorsed the text of the UDHR. The
Declaration had not managed at that time to achieve full recognition from the
communist and certain Middle Eastern countries, but at least they had not voted
against it. The UDHR has become a part of the fabric of the UN itself and has
become an increasingly powerful instrument for the achievement of human dignity
and peace.

Demonstration of Cultural Relativism through Reservations to Human Rights Treaties

3.1. Universality of Human Rights and Reservations to Human Rights Treaties
Although human rights are embodied in treaties drafted within the framework of the UN, the
issue is whether their validity is based on universal ethical or moral beliefs. The idea that all humans
have inalienable and universal human rights was a driving force in creating the UN System by
signing the 1945 Charter. The UDHR of 1948 has a central role in establishing the contours of the
contemporary consensus on internationally recognized human rights. 24 The Vienna Declaration and
Program of Action (1993) boldly asserts that the universal nature of human rights is beyond
question.25 According to Alston the fact that various human rights instruments have been drafted
within the framework of the UN and have been widely ratified is a proof for the existence of
universally shared values.26
However, if we look into the first two Chapters of this essay it could be concluded that
although a large majority of the States may be formally bound by a treaty, entering reservations on
some provisions allows for parties not to be equally binding, thus substantive rights will not be
available for all individuals. It could be said that universal adherence to human rights treaties, with
many reservations is just a formal universality of human rights and human rights law. In the analysis
of reservations to the CEDAW invoking the Sharia law we saw that these reservations have deep
roots in different cultural and religious beliefs. Having in mind that these reservations undermine the
main goals of the treaty, one could ask is it possible to speak about universality of human rights.
Therefore, the question to be asked is: are the present internationally recognized standards of human
rights legitimate on the universal level?
3.2. Universalism vs. Cultural Relativism

However, a concept of universality of human rights has become one of the cornerstones of
the international human rights framework. There exists a very well known debate between the two
ideas, the idea of universalism of human rights and of cultural relativism. As Ignatieff points out, the
cultural provocation to the universality of human rights arises from three distinct sources: from
resurgent Islam, from within the West itself, and from East Asia. 27 Each of these challenges is
independent of the others, but taken together, they have raised some questions about the validity and
the legitimacy of human rights norms.
Referring to the Saudi Arabia objection to article 16, relating to free marriage choice of the
UDHR Ignatieff writes that the challenge from Islam has been there from the beginning. 28 Today
some scholars from Islamic countries argue that human rights discourse is not universal but a product
of the European Enlightenment and its particular cultural development. 29 The freedoms articulated
in the UDHR make no sense within the theocratic bias of Islamic thought. Governments in many
Islamic countries often underscore this view
25 Article 1 of Vienna Declaration and Programme of Action, adopted by the World Conference on
Human Rights on 25 June 1993.
26 Alston, P, Is Universality in jeopardy?, The United Nations and the elliptical notion of the universality
of human rights, UNDPI, New York, 1987
27 Ignatieff, M., THE ATTACK ON HUMAN RIGHTS,:, Foreign Affairs, 00157120, Nov/Dec2001, Vol.
80, Issue 6
28 Ignatieff, M., THE ATTACK ON HUMAN RIGHTS,:, Foreign Affairs, 00157120, Nov/Dec2001, Vol.
80, Issue 6
29 Baderin M., International Human Rights and Islamic Law, Oxford University Press, 2002
 with particular respect to women's rights. Women are often seen as a symbol of a particular
cultural order, as icons of cultural purity. In Western theory, the “attack” on the idea of universality
of human rights firstly has come from Pollis and Schwab, who see human rights as a Western
construct of limited applicability. 30 The third objection has came from Asian countries and can be
summarized in words of Singapore’s Senior Minister Lee Kuan Yew who has said that Asians have
"little doubt that a society with communitarian values where the interests of society take precedence
over that of the individual suits them better than the individualism of America."
Many universalists do not deny cultural relativity. The relativist critique has given rise to a
new appreciation of the need for greater cultural sensitivity, including the need to develop more
adequate cross-cultural foundations for the development of modern theories of human rights. Human
rights thinkers are trying to find out what is the foundation of principles of universalism embodied in
the UDHR. Some of them argue that universalism is rooted in tradition of tolerance and universality
in different cultures and religion from around the world. 31 Parekh points out that concepts of justice
and law, the legitimacy of government, the dignity of the individual, protection from oppressive or
arbitrary rule are found in every society and those values are embedded in all human societies. 32 Sen
suggests that in identifying the historical antecedents of the idea of human rights we should seek
those elements that are consistent with and supportive and not the non-consistent ones. 33
On the contrary, Donnelly claims that the foundation and source is human nature and rights
are needed not for life but for life of dignity. 34 He argues that Western theory and practice has a
central role in the social construction of dominant international human rights. Furthermore, he writes
that international consensus on the system of human rights rooted in the UDHR is so-called Rawlsian
idea of “overlapping consensus” which means a practical normative consensus on political and
legjustice in a pluralistic society. 35
Many authors (An-Na'im, Basarudin, Rifat) claim that the problem between Islam and the idea of
universal legitimacy of human rights lay in misinterpretation of the Qur’an and the Islamic tradition,
which originally recognize equality and women’s rights. They all suggest an internal dialog within
Muslim society that could solve this problem.
Having all this in mind, the universality of human rights does not mean the global imposition
of a certain set of Western values, but instead, aims at the universal recognition of pluralism and
difference – different religions, cultures, political convictions, ways of life – insofar as such
difference expresses the deep potential of human existence and the dignity of the person. To be sure,
pluralism and difference apply also to the concept of human rights which itself remains open and
must be open to different and conflicting interpretations in pluralistic and multicultural world.
Conclusion
Undoubtedly, the issue of “Islamic” reservations to the core obligation to the CEDAW will remain
one of the most interesting topics in the human right theory and practice. The majority of these
reservations are incompatible with the ‘object and purpose’ of the treaty. They highlight the tension
between the universally adopted women’s human rights and religious and customary law in Islamic
States. Moreover, they could serve as the evidence that the universally recognized standards relating
to women’s rights can not be universally accepted.
However, one can say that by reserving their position regarding the “core” articles we could
bring into question the “good faith” of such States because they do not get any additional obligations
by becoming party to the CEDAW on such terms. In accordance with the VCLT these reservations
are not permissible. Unlike the “contractual” treaty, in the human rights treaties real beneficiaries are
individuals and other State Parties have no self-interest to make an objection in accordance with
provisions laid down in the VCLT. The “flexible” approach is a compromise between the two tasks,
universal adherence to human rights treaties from one side and the principle of integrity of the treaty
from the other side.
So, do reservations lead to universal participation in human right treaties? As already
mentioned, if universality of human rights means universal recognition of pluralism and difference,
the mechanism of reservations may be the way of engagement of all cultural traditions in the process
of promoting and sustaining human rights. Otherwise, demand for full adherence and
excludingofreservations leads to an elitist treaty with only a few states.

Debate of universalism and cultre relativism

Most readings on the topic of Human Rights include one or more chapters on cultural
relativism. The bulk of the existing literature revolves around a description of western
versus non-western philosophies and argues which approach better defines what
human rights should be. This paper aims at showing that this discussion on content
hides what is really at stake in the debate between universalism and cultural relativism
and explores the following arguments: 1. Both sides of the debate are manipulated in
order to be made mutually exclusive; 2. Both sides make claims that are not only valid
but reconcilable; 3. The debate itself, centered on what should be the content of an
international legislation, diverts intellectual and political resources from an effective
effort towards the improvement of Human Rights. I. The Emergence of the Debate as a
Point of Friction in International Politics. At the 1993 UN Conference on Human Rights
held in Vienna, a delegation led by China, Syria and Iran officially challenged the
universality of Human Rights and put forward the following conclusions: 1. Human
Rights as currently defined are not universal but based on Western morality. 2. They
should not therefore be imposed as norms on non-western societies in disregard of
those societies’ historical and economic development and in disregard of their cultural
differences and perceptions of what is right and wrong. 3. Furthermore they contend
that the imposition of one’s standard on another culture is unjust and imperialist in
nature. II. The Theoretical Content of the Debate The universalist theory of Human
Rights is indeed largely based on Western philosophy and the value it places on the
individual. Product of Greek philosophy, Christianity and the Enlightenment thinkers, the
universalist approach to Human Rights contends that one can use nature, God, or
reason to identify basic rights, inherent to every human, which pre-exist society. Jack
Donnelly best summarizes the contemporary doctrine of the universalist approach by
putting forward the following conclusions: 1. All humans have rights by virtue of their
humanity; 2. A person’s rights cannot be conditioned by gender or national or ethnic
origin; 3. Human Rights exist universally as the highest moral rights, so no rights can
be subordinated to another person (e.g. a husband) or an institution (e.g. the state).
Donnelly reinforces the universal validity of this theory by demonstrating that it is
increasingly the practice of states to accept it, through ratification of international
instruments.1 In so many words, certain rights because they are natural or God-given
or inherent to humanity are so fundamental that there should be no exception to their
application. By contrast, cultural relativism is based on the idea that there are no
objective standards by which others can be judged. The debate between universalism
and relativism is as old as the history of philosophy itself and its discussion of truth.
Relativism was introduced by, among others, the sophist Protagoras. He rejected
objective truth by saying in so many words, later quoted by Plato: “The way things
appear to me, in that way they exist for me and the way things appear to you, in that
".way they exist for you
Relativism as linked to culture will appear later thanks to the work of anthropologists
who empirically demonstrated that there exist in the world many different cultures,
each equally worthy. However, International Law has only recently begun to tackle the
issue of cultural relativism, which first emerged in a 1971 book by Adda Bozeman
entitled The Future of Law in a Multicultural World.3 The central themes of the book are
as follows: 1. There exist profound differences between western legal theories and
cultures and those of Africa, Asia, India and Islam. 2. In order to fully understand a
culture, one must be a product of that culture. 3. Even if a culture were to borrow a
concept from another culture, that concept’s meaning would be filtered through the first
culture’s unique linguistic-conceptual culture. 4. There can be no universal meaning to a
moral value. 5. A universal text on values is a futile exercise. Theoretically speaking, the
debate then is inscribed on a spectrum ranging from radical universalism that disallows
any derogation from certain standards to radical relativism which explains culture as the
sole source of the validity of a moral value. III. Critical Perspective: the Political
Manipulation of Both Sides For this purpose we need to stay away from a philosophical
discussion of the intrinsic value of each perspective and move to the way each of them
is used. Practice in Human Rights goes much further than theory. The aura of
universalism is tainted by the historical and present practice of its major proponents.
Undoubtedly, the Universal Declaration of Human Rights was western-made. Moreover,
all but two of its initial drafts were written in English. As for the content of the so-called
International Bill of Rights, we need to look at the two other treaties that compose it:
the International Covenant on Civil and Political Rights and the International Covenant
on Economic Social and Cultural Rights. With the latter mandating an obligation of
efforts rather than results, we can focus our attention on the cornerstone of Human
Rights legislation on general rights, the ICCPR. It is a perfect reflection of the European
Enlightenment: Hobbes, Locke, Montesquieu, and Rousseau are its spiritual founding
fathers. Indeed the Covenant insists on “negative” rights, those that limit the role of
government and prevent its intrusion in one’s life, privacy, and freedom of speech,
religion, opinion and association. Political liberalism thus defined has been the force
underlying the US Constitution and the US Bill of Rights, the French Declaration of the
Rights of Man and Citizen and the French Constitution. It is also the emphasis of the
International Human Rights legislation and thus legitimizes the efforts by the West to
spread—some say impose—Western models of democracy. This is a first level of
contention brought forward by cultural relativism proponents. To limit the role of
government and its treatment of nationals is an interference with domestic affairs and a
violation of state sovereignty, which for most of them is newly acquired and still fragile.
The debate in very simple terms could read as follows: “As soon as we (usually Third
World countries) are granted independence and sovereignty, you (the West) introduce
Human Rights and your style of government as a limit or as a condition.” Indeed, the
old “mission civilisatrice” is now replaced by the “spread of multiparty democracy."
Christianization, civilization, democratization: the rhetoric has changed, the interference
has not. Furthermore, there is still the underlying concept that Western culture,
because it legitimizes itself behind its pretension to universality, also positions itself as
superior to non-western culture. Universalism becomes Westernization. A question
remains, if it is westernization, then westernization for what purpose? Once again we
need to look back at the history of political liberalism and its expression in the modern
Human Rights doctrine. Locke cannot be separated from Adam Smith. Central to a
western definition of fundamental freedoms is the right to property. Economic liberalism
and political liberalism are brothers and in Western philosophy they are Siamese twins.
The freedom to vote is often translated in the freedom to consume and/or the freedom
to invest. It is very important that one billion Chinese be free to vote and express their
opinion as long as they also choose to buy Motorolas and Marlboros. The link between
Western-defined Human Rights and globalization of the economies explains the
virulence of the West on the issues of fundamental freedoms. In other terms, critics
agree that the universalist discourse barely hides a Western attempt to give a moral
legitimization to an economic agenda. The ultimate contradiction lies in the fact that
political liberalism has supported the same economic liberalism that has legitimized, for
example, the Structural Adjustment Programs of the IMF. The SAPs in turn have been
the catalyst for the curtailment of political freedoms and human rights in many
developing countries. That the universal Human Rights discourse can disguise a hidden
agenda is certainly undeniable. But does this mean by contrast that the cultural
relativist discourse is agenda-free? Let’s place it under scrutiny. The first level of
criticism of the use of cultural relativism as an exception to universal norms, lies in the
fact that bringing forward culture at a given time is to fundamentally ignore the
dynamic and fluid nature of culture. Cultural relativism adopts a static definition of
culture: a snapshot of a group of people and their system of meaning at a given time
with the underlying assumption that they will not change. It introduces in the paradigm
an element of determinism that has no factual or historical relevance. Static definitions
of culture also lead to such statement as “traditional ancestral ethnic hatred,” which
explain conflict in terms of culture, obliterating in the process all other determining
parameters such as political economy. However, cultural relativism’s most fundamental
weakness in the work towards Human Rights lies in the conflict of interest between the
people who articulate the argument and those they represent. More often than not,
cultural relativism is claimed by repressive regimes whose practices have nothing to do
with local or indigenous cultures but more with their own self-preservation.4 Cultural
policymakers are those who can speak for the group and articulate the group values to
the outside world. Such spokesmen are likely to only stress the elements insuring their
position. This is especially important in multi-ethnic or multi-cultural states where not
only would it be difficult to establish a national identity based on cultural values but also
where one group dominates the others at best, blatantly discriminates at worst. Would
someone attempt to define what is the “culture” in Bosnia-Herzegovina? Or in Rwanda?
Culture is a construct much more so than a reality and people can always find different
levels of allegiance. Indeed, one critique of cultural relativism is that it leads to
fragmentation. Cultural relativism as a tool is a legitimization of a behavior designed to
preserve a structure of powers. In a study on Iranian women, Karen Miller illustrates
that “in rejecting the aspirational character if universalism, relativism merely
perpetuates traditional practice." Miller insists notably on the fact that generally women
have not taken a large part in determining the culture because traditionally, male
activities have set the standards. In fact, violence against women seems to be common
in many cultures.5 IV. Reconcilability of the Two Approaches. Neither universalism nor
cultural relativism is exempt of political manipulations. Does that mean that neither
view carries some validity? Furthermore, if they each carry some validity, are they
mutually exclusive? To answer the first question by the affirmative—neither is valid,
Human Rights paradigms are tools, therefore they do not have intrinsic values—would
be reducing critical thinking to syllogism. Let’s more importantly see if both notions can
and should be reconciled in theory and in practice. That there exist profound
differences of perceptions among cultures or groups of people according to their
history, language, and economic circumstances might be true. Does that mean that
there exist among them no common points? Not necessarily. It is actually quite
remarkable to do a comparative textual analysis between Confucius and Locke and to
see how both at different times, insist on the centrality of the concept of Humanity in
defining individuals.6 4 Donnelly, Jack. 5 Miller, K. “Human Rights of Women in Iran:
the Universalist Approach and the Relativist Response.”
http://www.law.emory.edu/EILR/volumes/win96/miller.html 6 Nicoll, N. “Confucianism
.and Human Rights,” unpublished paper
Secondly, disagreeing with the content of what is now presented as universal does not
have to mean that there are no values or norms universally agreed upon. Western
values may not be universal but it does not mean that universal values do not exist.
This leads us to a level of conciliation that would embody a true cross-cultural search of
what can be universally agreed upon. Universal standards should be the goals while
cultural legitimacy would offer a method. This would be made that much more relevant
if those defining the culture were not those in power. The search of commonalties
would (in theory) bypass the structures of power. It could forge a necessary dialectic
between external attempts to build a universal system and the internal assistance of
various civil societies. V. The Obstacle of Law It is precisely at this juncture that we see
how the debate between universalism and relativism has contributed to perpetuate a
situation that has actually hindered, more than benefited, the cause of Human Rights.
The defense of Human Rights has been presented as a legal endeavor among state
actors. The debate is essentially a legal debate when texts of international law are
being drafted. Discussions then follow on what understanding to give to the term
“degrading treatment” or what reservations can a domestic legislation make in the
name of religion, culture or constitution (in the case of the US). The debate
concentrates on the content of the legislation or its interpretation or application in
domestic law, never on the means itself: the fact that there is an over reliance on law
to address Human Rights issues. Actually if there is a western influence, it is to be
found in that domain. Law as an absolute value is permeating the international realm.
In international law nation-states are both creators and parties. In Human Rights, like in
any other domain, states are not going to create universal or local structures that
bypass their level of control. The western idea that a ‘good litigation can solve all
problems’ is also present in Human Rights doctrine. The fact is that the Human Rights
legislation, which by nature of the international system lacks serious mechanism of
enforcement, has acted as a smokescreen and has often diverted efforts and resources
from other venues. Victory is claimed when a given country finally adopts an
international treaty or adequately adapts its domestic law, i.e. China signs the ICCPR or
Kenya outlaws female circumcision. Efforts can then stop or more realistically, MFN
status can be renewed. The issue of course is that most people whose rights are
violated do not have equal access to the law—especially true for women in many
countries. What difference would a change in the legislation make when you cannot
drive or go to an urban center, or for that matter, even read? In addition, the nature
itself of the existing legislation on Human Rights has indeed under western influence,
favored such rights as privacy and property. The legislation has erected a wall between
the public sphere and the private sphere to better protect those rights. This has been
ultimately catastrophic for women’s rights for most violations of women happen in the
private sphere. This is really a domain where one can witness how both theories,
universalism and relativism, have had a negative impact by creating a double standard.
Men readily accepting western norms of respect for privacy and property and women
made to bare the brunt of cultural authenticity within a private sphere made
untouchable by virtue of respect for fundamental freedoms. Conclusion The debate
between universalism and relativism should be a non-issue. Universal goals and cultural
sensitivities can be reconciled in the establishment of realistic strategies. However the
debate in its present form contributes to divert attention from more important issues. Is
International Law, made by states, the right venue to improve human rights? The
effective protection of Human Rights requires a transformation not only of government
and laws but of the non-state institutions and practices that the present Human Rights
.doctrine—universal or relative—does not touch
 

THE INTERNATIONAL BILL OF HUMAN RIGHTS

 Universal Declaration of Human Rights 1948

 International Covenant on Economic, Social and Cultural Rights 1966
 International Covenant on Civil and Political Rights 1966
 Optional Protocol to the International Covenant on Civil and Political Rights
 Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the
abolition of the death penalty

THE CORE INTERNATIONAL HUMAN RIGHTS INSTRUMENTS and their

monitoring bodies

There are nine core international human rights treaties. Each of these treaties has established a
committee of experts to monitor implementation of the treaty provisions by its States parties.
Some of the treaties are supplemented by optional protocols dealing with specific concerns.
  Monitoring
Date
Body

ICERD International Convention on the Elimination of All Forms of Racial 21 Dec CERD
Discrimination 1965

ICCPR 16 Dec CCPR

International Covenant on Civil and Political Rights
1966

ICESCR 16 Dec CESCR

International Covenant on Economic, Social and Cultural Rights
1966

CEDAW Convention on the Elimination of All Forms of Discrimination against 18 Dec CEDAW
 Women 1979

CAT Convention against Torture and Other Cruel, Inhuman or Degrading 10 Dec CAT
Treatment or Punishment 1984

CRC Convention on the Rights of the Child 20 Nov CRC

1989

ICRMW International Convention on the Protection of the Rights of All Migrant 18 Dec CMW
Workers and Members of Their Families 1990

CPED International Convention for the Protection of All Persons from 20 Dec CED
Enforced Disappearance 2006

CRPD 13 Dec CRPD

Convention on the Rights of Persons with Disabilities
2006

ICESCR - Optional Protocol of the Covenant on Economic, Social and Cultural 10 Dec CESCR
OP Rights 2008

ICCPR-OP1Optional Protocol to the International Covenant on Civil and Political 16 Dec HRC
Rights 1966

ICCPR-OP2Second Optional Protocol to the International Covenant on Civil and 15 Dec HRC
Political Rights, aiming at the abolition of the death penalty 1989

OP-CEDAWOptional Protocol to the Convention on the Elimination of 10 Dec CEDAW

Discrimination against Women 1999

OP-CRC- Optional protocol to the Convention on the Rights of the Child on the 25 May CRC
AC involvement of children in armed conflict 2000

OP-CRC- Optional protocol to the Convention on the Rights of the Child on the 25 May CRC
SC sale of children, child prostitution and child pornography 2000

OP-CAT Optional Protocol to the Convention against Torture and Other Cruel, 18 Dec CAT
Inhuman or Degrading Treatment or Punishment 2002

OP-CRPD Optional Protocol to the Convention on the Rights of Persons with 12 Dec CRPD
Disabilities 2006

       

UNIVERSAL HUMAN RIGHTS INSTRUMENTS

In addition to the International Bill of Rights and the core human rights treaties, there are many
other universal instruments relating to human rights. A non-exhaustive selection is listed below.
The legal status of these instruments varies: declarations, principles, guidelines, standard rules
and recommendations have no binding legal effect, but such instruments have an undeniable
moral force and provide practical guidance to States in their conduct; covenants, statutes,
protocols and conventions are legally-binding for those States that ratify or accede to them.
Information on the status of ratification of selected instruments is available here. Printer-friendly
versions of these instruments may be downloaded from the CD-ROM Compilation of Universal
Instruments accessible online here.
WORLD CONFERENCE ON HUMAN RIGHTS AND MILLENNIUM ASSEMBLY

 Vienna Declaration and Programme of Action

 United Nations Millennium Declaration

THE RIGHT OF SELF-DETERMINATION

 United Nations Declaration on the Granting of Independence to Colonial Countries and Peoples
 General Assembly resolution 1803 (XVII) of 14 December 1962, "Permanent sovereignty over
natural resources"
 International Convention against the Recruitment, Use, Financing and Training of Mercenaries

RIGHTS OF INDIGENOUS PEOPLES AND MINORITIES

 Declaration on the Rights of Indigenous Peoples

 Indigenous and Tribal Peoples Convention, 1989 (No. 169)
 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic
Minorities

PREVENTION OF DISCRIMINATION

 Equal Remuneration Convention, 1951 (No. 100)

 Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
 International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)
 Declaration on Race and Racial Prejudice
 Convention against Discrimination in Education
 Protocol Instituting a Conciliation and Good Offices Commission to be responsible for seeking a
settlement of any disputes which may arise between States Parties to the Convention against
Discrimination in Education
 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or
Belief
 World Conference against Racism, 2001 (Durban Declaration and Programme of Action)

RIGHTS OF WOMEN

 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW-OP)
 Declaration on the Protection of Women and Children in Emergency and Armed Conflict
 Declaration on the Elimination of Violence against Women

RIGHTS OF THE CHILD

 Convention on the Rights of the Child (CRC)

 Optional Protocol to the Convention on the Rights of the Child on the sale of children, child
prostitution and child pornography (CRC-OPSC)
 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in
armed conflict (CRC-OPAC)
 Minimum Age Convention, 1973 (No. 138)
 Worst Forms of Child Labour Convention, 1999 (No. 182)

RIGHTS OF OLDER PERSONS

 United Nations Principles for Older Persons

RIGHTS OF PERSONS WITH DISABILITIES

 Declaration on the Rights of Mentally Retarded Persons

 Declaration on the Rights of Disabled Persons
 Principles for the protection of persons with mental illness and the improvement of mental health
care
 Standard Rules on the Equalization of Opportunities for Persons with Disabilities

HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE: PROTECTION OF PERSONS

SUBJECTED TO DETENTION OR IMPRISONMENT

 Standard Minimum Rules for the Treatment of Prisoners

 Basic Principles for the Treatment of Prisoners
 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
 United Nations Rules for the Protection of Juveniles Deprived of their Liberty
 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
 Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (OPCAT)
 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the
Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
 Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
 Safeguards guaranteeing protection of the rights of those facing the death penalty
 Code of Conduct for Law Enforcement Officials
 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
 United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)
 United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing
Rules)
 Guidelines for Action on Children in the Criminal Justice System
 United Nations Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines)
 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
 Basic Principles on the Independence of the Judiciary
 Basic Principles on the Role of Lawyers
 Guidelines on the Role of Prosecutors
 Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary
Executions
 Declaration on the Protection of All Persons from Enforced Disappearance
 Basic Principles and Guidelines on the Right to a Remedy and Reparation
 International Convention for the Protection of All Persons from Enforced Disappearance (not yet into
force)

SOCIAL WELFARE, PROGRESS AND DEVELOPMENT

 Declaration on Social Progress and Development

 Universal Declaration on the Eradication of Hunger and Malnutrition
 Declaration on the Use of Scientific and Technological Progress in the Interests of Peace and for the
Benefit of Mankind
 Declaration on the Right of Peoples to Peace
 Declaration on the Right to Development
 Universal Declaration on the Human Genome and Human Rights
 Universal Declaration on Cultural Diversity

PROMOTION AND PROTECTION OF HUMAN RIGHTS

 Principles relating to the status of national institutions (The Paris Principles)

  Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognized Human Rights and Fundamental Freedoms

MARRIAGE

 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages
 Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages

RIGHT TO HEALTH

 Declaration of Commitment on HIV/AIDS

RIGHT TO WORK AND TO FAIR CONDITIONS OF EMPLOYMENT

 Employment Policy Convention, 1964 (No. 122)

FREEDOM OF ASSOCIATION

 Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
 Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

SLAVERY, SLAVERY-LIKE PRACTICES AND FORCED LABOUR

 Slavery Convention
 Protocol amending the Slavery Convention signed at Geneva on 25 September 1926
 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and
Practices Similar to Slavery
 Forced Labour Convention, 1930 (No. 29)
 Abolition of Forced Labour Convention, 1957 (No. 105)
 Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of
Others
 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children,
supplementing the United Nations Convention against Transnational Organized Crime

RIGHTS OF MIGRANTS

 International Convention on the Protection of the Rights of All Migrant Workers and Members of
Their Families (ICPMW)
 Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations
Convention against Transnational Organized Crime

NATIONALITY, STATELESSNESS, ASYLUM AND REFUGEES

 Convention on the Reduction of Statelessness

 Convention relating to the Status of Stateless Persons
 Convention relating to the Status of Refugees
 Protocol relating to the Status of Refugees
 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They
Live

WAR CRIMES AND CRIMES AGAINST HUMANITY, INCLUDING GENOCIDE

 Convention on the Prevention and Punishment of the Crime of Genocide

  Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against
Humanity
 Principles of international co-operation in the detection, arrest, extradition and punishment of
persons guilty of war crimes and crimes against humanity
 Statute of the International Tribunal for the Former Yugoslavia
 Statute of the International Tribunal for Rwanda
 Rome Statute of the International Criminal Court

HUMANITARIAN LAW

 Geneva Convention relative to the Treatment of Prisoners of War

 Geneva Convention relative to the Protection of Civilian Persons in Time of War
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of International Armed Conflicts (Protocol I)
 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II)

Also available:

 Ratifications and Reservations

 Status of ratifications and signatures of human rights treaties
 CD Compilation of International instruments - Universal instruments
 Conventions, Declarations and Other Instruments Found in General Assembly Resolutions (since
1946)

 
M any admirers of India often go out of the way to depict India as the
"world's largest democracy" and a "secular" state, which through its
constitution guarantees fundamental human rights to all Indians -- the
implication being that such rights are in practice as a matter of routine. Yet,
dismaying as it may seem, I have never come across any piece of written
information analyzing the Indian Constitution itself, let alone all those
enshrined fundamental rights that it guarantees to its citizens. Coupled with
aggressive Soviet-style "active measures" channeled by the Indian
government, several intellectuals outside India have fallen prey to the media
hype. Included on this list are the key members of US Department of State
who upon my inquiry a number of years ago hadn’t even seen what the
Constitution of India looked like, let alone read it!

Before analyzing the rights enshrined

in the Indian Constitution, a few words
on the constitution would be helpful to
readers. The Indian Constitution
(promulgated in 1950) is the longest
constitution ever written. As of
December 2007, the Constitution of
India comprised 395 Articles, 12
Schedules, 2 Appendices, and
constitutional amendments totaling no
less than ninety-four in number.
Include to this list are amendments of
previous amendments -- often each
amendment encompassing multiple
smaller amendments within its
charter. India's constitution can safely
be characterized as one of the most
complicated of all modern political
documents available.
Highly placed Indians with some insight into their constitution will often take
delight in saying that it is based on sound fundamental principles derived
from the constitutions of no less than five great Western democracies:
Australia, Canada, England, Ireland, and of course, the United States. It all
sounds great. Even more impressive is when we hear that the Bill of Rights
of the U.S. Constitution has made its way into the Indian Constitution. This
is always followed by a note of special thanks to the framers of India's
constitution, with particular tribute paid to the likes of Dr. B.R. Ambedkar
(well known leader of India’s Untouchable community), who chaired the
drafting committee that devised the Indian Constitution. Justifiably, a
question begs to be asked: Are all things mentioned above true?

To answer that question, one must at least procure the most recent copy of
the Indian Constitution, read it, understand it, and then present the facts as
they stand. I did exactly that, which is why I am writing this article.

I hope the reader is familiar with the first ten amendments (commonly called
"The Bill of Rights") of the U.S. Constitution, which were ratified in 1791.
This information is important since these rights were purportedly imported
into the Indian Constitution. For the purpose of this article, it will be worth
the effort to reproduce the First Amendment of U.S. Constitution, which
states:

Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof; or abridging the freedom of speech, or
of the press, or the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
 

The Substance

Part III of the Indian Constitution (Articles 12 through 35) constitutes the
entire minutia on fundamental rights. Of these total of twenty-four articles,
Articles 19 and 25 are the only ones
that truly correspond to the First
Amendment of U.S. Constitution.
Allow me to reproduce Article 19 in its
entirety:

Protection of certain rights

regarding freedom of speech, etc.

(1)   All citizens shall have the right:

(a)   to freedom of speech and

expression;
(b)   to assemble peaceably and
without arms;
(c)   to form associations or unions;
(d)   to move freely throughout the territory of India;
(e)   to reside and settle in any part of the territory of India; [and]
(f)   deleted
(g)   to practice any profession, or to carry on any occupation, trade or
business.

(2)   Nothing in sub-clause (a) of the clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as
such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of State, friendly relations with foreign States,
public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.

(3)  Nothing in sub-clause (b) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interest of the sovereignty and integrity of India or
public order, reasonable restrictions on the exercise of the right conferred by
the said sub-clause.

(4)   Nothing in sub-clause (c) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interest of the sovereignty and integrity of India or
public order or morality, reasonable restrictions on the exercise of the right
conferred by the said sub-clause.

(5)   Nothing in sub-clause (d) and (e) of the said clause shall affect the
operation of any existing law in so far as it imposes, or prevent the State
from making any law imposing, reasonable restrictions on the exercise of the
right conferred by the said sub-clauses either in the interests of the general
public or for the protection of the interests of any Scheduled Tribe.

(6)   Nothing in sub-clause (g) of the said clause shall affect the operation of
any existing law in so far as it imposes, or prevent the State from making
any law imposing, in the interest of the general public, reasonable
restrictions on the exercise of the right conferred by the said sub-clause,
and, in particular, nothing in the said sub-clause shall affect the operation of
any existing law in so far as it relates to, or prevent the State from making
any law relating to -
(i)  the professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
(ii)   the carrying on by the State, or by a corporation owned

The United Nations (UN) has created a global structure for protecting human rights, based largely on
its Charter, non-binding declarations, legally binding treaties and on various activities aimed at
advancing democracy and human rights throughout the world.

The UN often finds it necessary to define rights in a cautious manner, as it is host to an extremely
diverse group of member states, with varying economic, social, cultural and political histories.
Subsequently, the UN must accommodate these differences in its mechanisms for protecting the
human rights it has outlined in treaties and declarations. Thus, these methods may be less
substantive or lack in strict enforcement as compared to those of regional institutions. Broad
agreements allow the UN to accommodate a spectrum of different viewpoints. The UN thus affects
more nations and many more individuals than any regional institution could.

The UN's system of human rights protection has three main components: first, it establishes
international standards through its Charter, legally binding treaties, non-binding declarations,
agreements, and documents; next, it mandates Special Rapporteurs and experts, and groups, such as
working groups, committees and treaty bodies, to work in various manners for the promotion and
protection of human rights; finally, it offers technical assistance through the Voluntary Fund for
Advisory Services and Technical Assistance in the field of Human Rights.

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History

International legal agreements and organizations pre-date the formation of the United Nations. At the
International Peace Conference in The Hague in 1899 over 25 nations met for ten weeks to codify the
laws of war, both on land and at sea. In addition to this monumental agreement, they also formulated
instruments for peaceful crisis settlement and war prevention. This formal statement on the
desirability of international peace laid the foundation for such organizations as the League of Nations
and the United Nations.

Twenty years later, the League of Nations was founded. At the Treaty of Versailles in 1919, the victors
of the First World War convened to negotiate a peace settlement. At this conference, the League, the
UN's predecessor, was formed "to promote international cooperation and to achieve peace and
security" throughout the world. Member states agreed not to go to war with one another without first
submitting complaints to any offending state; and for offending states who were not members of the
League, its members pledged not to go to war without an enquiry to the state. The League had
originally been proposed by the president of the United States (US) Woodrow Wilson, but domestic
pressure prevented the US from ever joining. The League of Nations lasted only until 1946; it
dissolved after it failed to prevent the outbreak of World War II.

The trauma and violence of World War II (WWII) inspired the Allied Nations to try to establish a
peace-keeping organization for the prevention of the recurrence of such horrors. On June 12, 1941, a
preliminary move toward the establishment of the United Nations occurred with the signing of the
Inter-Allied Declaration. Signed in London, the Inter-Allied Declaration pledged that the Allied powers
would "work together, with other free peoples, both in war and in peace".

Two months later, President of the United States Franklin Delano Roosevelt of the United States and
Prime Minister of the United KingdomWinston Churchill agreed upon a doctrine upon which to base
international cooperation. The two main principles behind the UN, the establishment of both world
peace and global security, are found in the Atlantic Charter. Roosevelt and Churchill signed this
document while on board the HMS Prince of Wales on August 14, 1941. The signing signaled that the
Allied Powers intended to form a stronger, more effective organization than the League of Nations had
proven to be.

On January 1, 1942, representatives from the 26 Allied nations gathered in Washington, DC to sign
the Declaration by United Nations. This document reaffirmed the goals set by the Atlantic Charter. It
also first contained the term "United Nations", which had been suggested by President Roosevelt.

In 1943, two conferences were held during which nations recognized that the goals set forth in the
Declaration by United Nations regarding international peace and security should be upheld within an
international organization. The governments of the Soviet Union (USSR), the UK, the US and China
signed such an agreement to this end in Moscow on October 30; leaders of the US, the USSR and the
UK renewed this intention at Teheran on December 1, 1943.

From these agreements, leaders from the United States, the United Kingdom, the Soviet Union and
China met for several months in the fall of 1944 in Washington, DC, to determine the goals, structure,
and methods of functioning for the United Nations. These meetings held between September 21 and
October 7 became known as the Dumbarton Oaks Conference.

On February 11, 1945, President Roosevelt, Prime Minister Churchill and Premier Joseph Stalin met at
Yalta and announced their resolution to form "a general international organization to maintain peace
and security".

The San Francisco Conference of 1945 propelled the United Nations into reality. On April 25, delegates
from fifty nations across the globe gathered in San Francisco, where they negotiated and drew up the
111-article Charter of the United Nations; the Charter was then unanimously adopted on June 25 and
signed on June 26. Poland was not represented at the conference, but soon signed the Charter to
become the 51st and last original member state.

The Charter's preamble states the purpose in founding such an institution: "We the peoples of the
United Nations determined…to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations large and small …" The
Charter itself includes the following goals: "…To achieve international co-operation in solving
international problems of an economic, social, cultural or humanitarian character, and in promoting
and encouraging respect for human rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion…"

The United Nations officially became an institution with the ratification of the UN Charter on October
24, 1945. From then on, it quickly became an active international body. On January 10, 1946, the first
General Assembly met at Westminster, London. There were 51 nations represented at this first
meeting. One week later, on January 17, the Security Council first met, also in London. The following
week, on January 24, the General Assembly adopted its first resolution, focusing on peaceful uses of
atomic energy and the elimination of weapons of mass destruction. February 1 of that year saw the
appointment of the first Secretary-General, Trygve Lie, from Norway. The UN Headquarters were first
established in New York City on October 24, 1949.

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Main Bodies of the United Nations

The United Nations is composed of six major bodies: the General Assembly, the Secretariat, the
Security Council, the International Court of Justice, the Trusteeship Council and the Economic and
Social Council. Although the United Nations was divided into these six spheres, they are of unequal
size (some possess many subsidiary bodies and committees while others have very few), status (some
are quite powerful while others have become almost obsolete), and relevance to human rights (some
focus extensively on the issue while others bear little or no relevance for the protectin and promotion
of human rights).

General Assembly

The General Assembly is the legislative body of the UN. It currently consists of 191 member states, all
of which must take part in its sessions and none of which may have more than five representatives.
The General Assembly has established Permanent Committees, such as the seven Main Committees,
the Procedural Commissions and the Permanent Commissions, that meet between General Assembly
sessions. It is also responsible for appointing the Secretary-General, upon recommendation from the
Security Council, to a renewable five year term.

Secretariat

The Secretariat is headed by the UN Secretary-General, who is recommended by the Security Council
and then appointed to a five-year term by the General Assembly. It is in charge of carrying out
programs designed by other branches of the United Nations, such as peacekeeping missions,
international dispute mediation, and studying economic, cultural, human rights, or social trends. It
also handles administrative details, such as speech and documents translations, UN news and
information releases, and international conference co-ordinations. The Secretariat hosts around 9,000
staff members.

Security Council

The Security Council possesses the power to draft resolutions providing for the use of force against
states, with an emphasis on non-violent conflict resolution and preventative measures. In order to
pass a resolution permitting the use of arms against a state, it must gain at least nine "yea" votes
from its fifteen members with no vetoes. Only its permanent members hold veto power. Its
composition was established in the UN Charter, and consists of five permanent members, China,
France, Russia, the United Kingdom and the United States. Additionally, ten non-permanent members
serve on the Council who are elected to two year terms. Non-members may participate in hearings
and meetings, but may not vote. The Security Council is an important branch of the UN, developed for
the maintenance of peace and security in the world.

International Court of Justice

The International Court of Justice (ICJ), the judicial branch of the UN, is based in the Hague, the
Netherlands, and was established in 1945 by the Charter of the United Nations. All states that have
signed the UN Charter are members of the ICJ. Its jurisdiction extends to international conflicts, with
the exception of political ones. Its responsibilities include: giving opinions on concrete topics; ruling on
cases; and clarifying international legal norms.

The ICJ is the latest step in the continuing evolution of international courts. The first such court,
Permanent Court of Arbitration, was founded in 1899 and still exists today. The Permanent Court of
International Justice was created by the League of Nations and existed between 1922 and 1946. It
served as the model on which the International Court of Justice is based.

Economic and Social Council (ECOSOC)

The Economic and Social Council (ECOSOC) makes recommendations to the General Assembly on
human rights issues. It reviews the reports submitted by the Commission on Human Rights and
submits the amended versions to the General Assembly. ECOSOC is composed of 54 members serving
three year terms; members meet twice a year. Additionally, it oversees several committees and
commissions, such as the Commission on Human Rights, the Sub-Commission on the Promotion and
Protection of Human Rights, the Commission on the Status of Women and the Commission on Crime
Prevention and Criminal Justice, as well as UN specialized agencies, such as the International Labor
Organization (ILO) and the World Health Organization (WHO).

Trusteeship Council

This council was originally established to preside over the so-called "dependent areas" within the
international Trusteeship System, under Article 75 of the UN Charter. However, the goals for and tasks
of the Council have largely been fulfilled, and it is therefore now mostly obsolete. Currently, the
Trusteeship Council only meets if and when a scenario requires it.
 

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Charter-Based Mechanisms for Human Rights Protection and Promotion

The type of protection provided by the United Nations on issues of human rights is based on either
Charter-based or treaty-based mechanisms. Those mechanisms based on the UN Charter include: the
Universal Declaration of Human Rights; the Commission on Human Rights; and the Sub-Commission
on the Promotion and Protection of Human Rights.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights (UDHR) is one of the first international documents to be
based on the idea that rights are guaranteed to each human being. Most previous international
declarations and treaties were based on the idea of positivism, whereby rights are only recognized
once they have been set forth in national legislation. Like the UN itself, the UDHR was written with the
aim of establishing world peace by promoting human rights. Originally, the UDHR brought together 58
distinct geographic, cultural and political backgrounds in the formation of one universal document.
Although the UDHR is not legally binding it has created international human rights standards that are
codified in various international treaties.

The Universal Declaration of Human Rights was drafted between January 1947 and December 1948.
Its text was composed by the then eight-member Commission on Human Rights headed by Eleanor
Roosevelt, and sought to include the whole spectrum of human rights: from cultural, social and
economic to civil and political rights. Following over 1,400 votes modifying the document's text, the
UN General Assembly unanimously passed the Declaration on December 10, 1948, with eight
abstentions to the vote, coming from Belarus, Czechoslovakia, Poland, Saudi Arabia, South Africa, the
Soviet Union, Ukraine, and Yugoslavia.

The UDHR consists of 30 articles specifying basic rights guaranteed to each individual. The first two
articles establish the document's premise, that all humans share universal equality, and that this
equality is based on the fundamental dignity bestowed upon humanity. This equality of human dignity
translates to universality of human rights. Included in the notion of universality is the idea that these
rights are automatically extended to everyone and may not be denied for any reason or because of
any action an individual may commit.

Article 1 states: "[A]ll human beings are born equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of brotherhood."

Article 2 continues: "Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status."

Articles 3 through 21 specify civil and political rights. In these articles, rights set forth include the right
to life, liberty, a fair trial, free speech, privacy, of personal security, and of movement, as well as
freedom from slavery, torture, and arbitrary arrest.

Articles 22 through 27 provide for economic, social and cultural rights. These rights are specified as an
indispensable aspect of an individual's life, being necessary for one's dignity and personal
development, and include economic rights such as the right to social security, economic work-related
rights, fair payment and leisure; social rights such as the right to an adequate standard of health,
well-being and education; and cultural rights, such as the right to participate in cultural life.

Finally, Articles 28 through 30 establish a general framework to provide for the enjoyment of human
rights: the recognition of the right to a social and international system that promotes human rights; a
statement that humans have obligations to the community along with fundamental rights; and a
reminder that no state or individual may utilize the Declaration to promote goals contrary to the
mission or goals of the UN.

Commission on Human Rights

Composed of 53 member states, the Commission on Human Rights is the Charter-based body that
most directly deals with the area of human rights. It is assisted by the Sub-Commission on the
Promotion and Protection of Human Rights, individual experts, representatives, and Special
Rapporteurs. The Commission on Human Rights meets for six weeks each year in Geneva, although it
may also meet in majority-endorsed "Special Sessions" in order to provide the most expeditious
manner of dealing with human rights abuses. In evaluating a situation, the Commission may choose to
monitor a situation itself or may request for an outside body to do so. Its jurisdiction of human rights
protection was expanded by ECOSOC in the 1970s to include the entire globe.

From its inception, the Commission has influenced international human rights standards, working to
set as well as to enforce rights standards. It helped author the Universal Declaration of Human Rights
in 1948. Since then, it has formed standards relating to the right to development, civil and political
rights, economic, social and cultural rights, the elimination of racial discrimination, torture, the rights
of the child and the rights of human rights defenders.

Monitoring Human Rights

The Commission on Human Rights also devotes much time to monitoring the implementation of the
standards it has set. It may turn to any number of permanent or special procedures when examining a
specific area of human rights. Its two permanent procedures are the 1503 Procedure and the 1235
Procedure; its special procedures include fact-finding missions, thematic mechanisms or mandates and
advisory services.

The 1503 Procedure is a confidential procedure named after ECOSCO Resolution 1503 by which it
was established. It is activated when the Commission receives a communication about a consistent
pattern of gross human rights violations. Violations considered under this procedure include genocide,
apartheid, racial or ethnic discrimination, torture, forced mass migrations and mass imprisonment
without a trial. The report of consistent gross human rights violations to the Commission may not be
an anonymous one, yet does not require the consent of the state concerned for an investigation to
take place. This regulation gives the Commission great leeway in deciding how to best approach a
situation. Following its investigation, the Commission then decides what action to take. When a 1503
Procedure has failed to stop a human rights violation it has investigated, the Commission on Human
Rights may invoke the 1235 Procedure under which it can hold an annual public debate about the
gross violations of human rights in question. If this also fails to adequately affect the situation, the
Commission may move to have ECOSOC pass a resolution condemning the violators. This public
condemnation tarnishes the reputation of the leaders in the state in question and discredits their
legitimacy as political elites.

Among the special procedures available to the Commission on Human Rights, fact-finding missions
are a useful tool. In a fact-finding mission, an expert or group of experts studies the human rights
situation and looks for violations in a given state with the purpose of gathering information for a 1503
or a 1235 procedure. However, a fact-finding mission may only occur with the consent of the state
whose human rights recored is being questioned. As of April 2003, 47 countries had extended
standing invitations to the Thematic Special Procedures of the United Nations Commission on Human
Rights to investigate human rights issues, meaning that the Commission may initiate a fact-finding
mission to any one of those countries at any time. For all other nations, the Commission must first
seek and gain approval before dispatching its experts to the country.

Another special procedure available to the Commission on Human Rights is a thematic mechanism
or mandate. Working groups and/or Special Rapporteurs investigate human rights violations and the
problems they have caused on a multi-state level. Recently, there has been an increase in the number
of Special Rapporteurs investigating human rights issues.

Lastly, the Commission on Human Rights offers advisory services to nations that request it. The
Commission provides educational and informational assistance to states in order to help them observe
a high level of human rights protection. Additionally, the Commission on Human Rights may request
assistance from the Office of the High Commissioner for Human Rights in the form of seminars,
training courses, and clinics as well as advice from experts.

Sub-Commission on the Promotion and Protection of Human Rights

The Sub-Commission was established by the Commission on Human Rights at its first meeting in
1947, and was titled the Sub-Commission on Prevention of Discrimination and Protection of Minorities
before a 1999 vote to change its name. It serves as the main subsidiary body to the Commission on
Human Rights.

The Sub-Commission is comprised of 26 member experts acting independently, without affiliation to

their state of origin, though they are elected by the Commission proportionally according to
geographical population distribution. Presently, member experts are divided as follows: seven from
Africa, six from Western Europe and other States, five from Asia, five from Latin America and three
from Eastern Europe. Each member has one alternate; half the members and their alternates are
elected every two years and each serves for a term of four years. The Sub-Commission meets for
three weeks each year in Geneva; government officials, staff of UN specialized agencies and NGO
observers may also attend their meetings.

The Sub-Commission's mission is to undertake studies under the guidance of the UDHR and to make
recommendations to the Commission on Human Rights concerning the prevention of discrimination of
any kind relating to human rights and fundamental freedoms and the protection of racial, national,
religious and linguistic minorities. The Sub-Commission also undertakes work assigned to it by the
Commission or ECOSOC, and distributes these assignments between its six working groups: the
Working Group on Communications (which considers complaints regarding a consistent pattern of
gross and verifiable violations of human rights within the scope of communications, together with any
existing replies from governments), the Working Group on Contemporary Forms of Slavery, the
Working Group on Indigenous Populations, the Working Group on Minorities, the Working Group on
Administration of Justice and the Working Group on Transnational Corporations.

High Commissioner for Human Rights

The position of the High Commissioner for Human Rights was established by the General Assembly of
the United Nations in December 1993. The High Commissioner carries out the Secretary-General's
"good offices" duties relating to human rights, and is accountable to the Economic and Social Council
as well as the Secretary-General. The Commissioner holds the principal position of promoting human
rights and dealing with human rights activities in the UN, and must also maintain dialogue with all
member states on the subject of human rights. Responsibilities of the High Commisioner include: crisis
management; prevention and early warning of abuses; assistance to states in periods of political
transition; promotion of substantive rights to governments; and coordination and rationalization of
human rights programs.

The Commissioner is assisted by a Deputy to the United Nations High Commissioner for Human
Rights, a staff for dealing with substantive issues, and an administrative staff. The Deputy, who
assists the Commissioner in fulfilling assignments, is the Officer-In-Charge when the Commissioner is
absent. The policies of the High Commissioner are implemented by the Office of the High
Commissioner for Human Rights (OHCHR), is "to protect and promote human rights for all." OHCHR
fulfills its goals through a variety of activities, including: emphasizing the significance of human rights
globally and locally; providing education and resources regarding human rights; supporting human
rights organs and treaty monitoring bodies; and responding to serious human rights violations.

The post of High Commissioner for Human Rights was first held by Mr. José Ayala-Lasso of Ecuador.

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Treaty-Based Mechanisms for Human Rights Protection and Promotion

International law takes precedence over the domestic law of a state. Thus, when a nation signs a
treaty, it is pledging to adopt the provisions set forth within the treaty into the domestic law of a
state. In this way, treaty-based mechanisms vary from Charter-based ones. Whereas the UN Charter's
mechanisms are at times either not legally binding or require permission to be executed, treaties are
backed by the norms regulating international law and are therefore legally binding.

International legal instruments take the form of a treaty (also called agreement, convention, protocol)
which may be binding on the contracting states. When negotiations are completed, the text of a treaty
is established as authentic and definitive and is "signed" to that effect by the representatives of states.
There are various means by which a state expresses its consent to be bound by a treaty. The most
common are ratification or accession. A new treaty is "ratified" by those states who have negotiated
the instrument. A state which has not participated in the negotiations may, at a later stage, "accede"
to the treaty. The treaty enters into force when a pre-determined number of states have ratified or
acceded to the treaty.

When a state ratifies or accedes to a treaty, that state may make reservations to one or more articles
of the treaty, unless reservations are prohibited by the treaty. Reservations may normally be
withdrawn at any time. In some countries, international treaties take precedence over national law; in
others, a specific law may be required to give an international treaty, although ratified or acceded to,
the force of a national law. Practically all states that have ratified or acceded to an international treaty
must issue decrees, amend existing laws or introduce new legislation in order for the treaty to be fully
effective on the national territory.

The UN currently has seven human rights treaties: the International Covenant on Economic, Social
and Cultural Rights (ICESCR); the International Covenant on Civil and Political Rights (ICCPR); the
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); the
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); the
Convention on the Rights of the Child (CRC); and the International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families.

Each of these seven human rights treaties has a monitoring body, composed of independent experts
who examine the reports that signatory nations submit under the treaty. These committees are also in
charge of issuing "concluding observations/comments", where they summarize their concerns about
certain states and also give recommendations for the future.

Four of the treaty committees have mechanisms to deal directly with individual complaints of human
rights violations under their respective treaties. These four bodies are: the Human Rights Committee,
for the ICCPR; the Committee on the Elimination of Racial Discrimination, for the ICERD; the
Committee on the Elimination of all forms of Discrimination against Women, for CEDAW; and the
Committee against Torture, for CAT. Strict regulations exist regarding when an individual may formally
issue a complaint to one of the monitoring bodies. All domestic options for settling the violation must
have been previously exhausted. Additionally, the individual issuing the complaint must be under the
jurisdiction of a state that is a party to the relevant treaty. No complaint may be made anonymously;
it must come from either the victim, a representative of the victim, or, in rare circumstances in which
it is impossible for either of these people to complain, a third, non-anonymous party may issue a
complaint. The event in question must have occurred on or after the later date of either the treaty's
entrance into force or the date the state in question signed the treaty.

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

This International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the
United Nations in 1966 and entered into force one decade later, in 1976. Along with the International
Covenant on Civil and Political Rights, the amount of time that it took the ICESCR to enter into force
may be partly attributed to the Cold War, in which Communist regimes, who advocated for economic,
social and cultural rights, stood squarely against Western capitalist democracries, who embraced the
civil and political rights codified in the International Covenant on Cival and Political Rights. The ICESCR
is monitored by the Committee on Economic, Social and Cultural Rights.

Committee on Economic, Social and Cultural Rights

The Covenant itself did not provide for the creation of a monitoring body, so in the early days of
ICESCR, states that had ratified the treaty reported to a working group of ECOSOC. In 1986, the
Committee on Economic, Social and Cultural Rights (CESCR) took over the role as an independent
expert committee to monitor the implementation of the Covenant. Currently, the Committee does not
have a mechanism for processing individual complaints, although in 1996, CESCR sent to the
Commission on Human Rights a draft of a proposed optional protocol that would provide for this kind
of complaints procedure. It meets three times a year in Geneva.

International Covenant on Civil and Political Rights (ICCPR)

The International Covenant on Civil and Political Rights, like the ICESCR, was adopted by the UN in
1966, but did not enter into force until 1976. Also like the ICESCR, the ICCPR saw a great deal of
delay in its ratification due to the Cold War conflicts. These two treaties were signed separately
because of the thought that political and civil rights could and must be guaranteed from the moment a
nation signs on to the Covenant listing them, but that, while it was desirable for the same to be true
of economic, social and cultural rights, it was not feasible. Implementation of social and economic
rights was expected to take much time and thus could not be forced upon a nation merely because it
has ratified the Covenant.
This application theory is recognized in the respective second articles of each Covenant: In Article 2,
paragraph 1 of the ICCPR, the Covenant obliges a state "…to respect and to ensure to all individuals…
the rights recognized in the present Covenant." Meanwhile, a state "undertakes to take steps…to the
maximum of its available resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant…", according to Article 2, paragraph 1 of the ICESCR. The
ICCPR is monitored by the Human Rights Committee.

These two treaties account for most of the provisions listed under the Universal Declaration of Human
Rights; further, they make the provisions binding for those nations who are parties to the covenants.
The two convenants along with their optional protocols and the Universal Declaration of Human Rights
are known as the International Bill of Human Rights.

Human Rights Committee

The Human Rights Committee was established to ensure that the rights listed under the ICCPR were
protected. It is composed of 18 elected representatives, who serve four-year terms as independent
and not representatives of their state of origin, and is based in Geneva. Its role is comprised of four
main duties: to review reports submitted by states on their domestic actions taken to comply with the
treaty; to consider information submitted from one member state accusing another member state of
violating the treaty in some manner; to consider individuals' complaints against states that have
signed the treaty, as well as reports written also by NGO; and to issue "General Comments".

Each member state of the ICCPR is required to submit a report to the Human Rights Committee each
year "on the measures they have adopted which give effect to the rights recognized herein and on the
progress made in the enjoyment of those rights." (ICCPR, Article 40). These reports must contain both
a general and a specific component to them. The general aspect of the report must include data and
statistics on the nations' frameworks in place that protect the rights listed in the treaty, whereas the
report's specific aspect must include information addressing each article in the ICCPR as well as
information about court rulings and the extent to which rights are being enjoyed in the member state.

Member states may report on other member states not abiding by the treaty's provisions. If such a
circumstance were to arise, the report would first be sent to the offending state. Then, if it were not
addressed adequately by the state, it could be sent to the Human Rights Committee for review.
Despite the availability of this mechanism, it has never been utilized.

In the case of the ICCPR, the state in question must be a party to the treaty's optional protocol, which
allows for the registering of individual complaints. If all these preconditions are met, the complaint
proceeds through three stages: the registration of the complaint, an examination of whether or not
the complaint satisfactorily meets the preconditions, and a communication on whether the complaint
falls under the ICCPR and may therefore be given consideration. When the Human Rights Committee
considers a complaint, the Committee will submit "views" on the issue in an annual publication.
Although these views may condemn a government or state sector, the Committee has no means of
sanctioning the guilty party nor of enforcing its views.

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted in
1965 and entered into force in 1969. It seeks to eliminate all forms of racial discriminations, and is
monitored by the Committee on the Elimination of Racial Discrimination.

Committee on the Elimination of Racial Discrimination

The Committee on the Elimination of Racial Discrimination (CERD) exists to monitor state parties to
the CERD. It has 18 independent experts who are elected to CERD by state parties to the Convention.
They meet in Geneva each year for two three-week sessions.

CERD's four main duties are the same as Human Rights Committee's: to review reports submitted by
states on their domestic actions taken to comply with the treaty; to consider information submitted
from one member state accusing another member state of violating the treaty in some manner; to
consider individuals' complaints against states that have signed the treaty; and to issue written
"General Comments".

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)

The Convention on the Elimination of All Forms of Discrimination against Women was adopted 1979
and entered into force in 1981. It focuses on the areas of education, employment, health, marriage,
and the family as each area relates specifically to women. CEDAW calls for the elimination of
discrimination against women within society as well as the adoption of legislation to further women's
rights. It is monitored by the Committee on the Elimination of all forms of Discrimination against
Women.

Committee on the Elimination of all forms of Discrimination against Women

The Committee on the Elimination of all forms of Discrimination against Women (the CEDAW
Committee) monitors the CEDAW treaty. It consists of 23 independent experts who are elected by
those states that are parties to the Convention. It is one of the four monitoring committees that may
undertake confidential inquiries into individual complaints.

As the Committee on the Elimination of Racial Discrimination and the Human Rights Committee, the
CEDAW Committee has four main duties: to review reports submitted by states on their domestic
actions taken to comply with the treaty; to consider information submitted from one member state
accusing another member state of violating the treaty in some manner; to consider individuals'
complaints against states that have signed the treaty; and to issue Committee written "General
Comments" on each state's compliance with the treaty, taking into account reports written also by
NGOs, to present to the Secretary General.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was
adopted in 1984 and entered into force in1987. Among other provisions, it bans torture and rape as
weapons during wartime. It is monitored by the Committee against Torture.

Committee against Torture

The Committee against Torture exists to monitor the Convention against Torture treaty. Its
membership includes ten independent experts, elected by parties to the Convention. The Committee
meets twice a year in Geneva for two to three weeks at a time, and submits an annual report to the
UN General Assembly.

The Committee against Torture shares four of its five main duties with the Human Rights Committee,
the Committee on the Elimination of Racial Discrimination, and the CEDAW Committee. Its mission
includes: reviewing reports submitted by states on their domestic actions taken to comply with the
treaty; considering information submitted from one member state accusing another member state of
violating the treaty in some manner; considering individuals' complaints against states that have
signed the treaty; issuing Committee written "General Comments" on each state's compliance with the
treaty, taking into account reports written also by NGOs, to present to the Secretary General. In
addition to these four shared goals, CAT also investigates into allegations of general systematic forms
of torture.

Convention on the Rights of the Child (CRC)

The Convention on the Rights of the Child was adopted in November of 1989 and entered into force
less than a year later, in September of 1990. It is the UN's most universally ratified human rights
convention. It protects children from economic and sexual exploitation, among other things, and is
monitored by the Committee on the Rights of the Child.

Committee on the Rights of the Child

The Committee on the Rights of the Child monitors the Convention on the Rights of the Child. While
the Committee engages in many of the same practices as do other committees, there is no individual
complaints mechanism associated with the Convention, nor is there one associated with either of its
two optional protocols, the Optional Protocol to the Convention on the Rights of the Child on the sale
of children, child prostitution and child pornography and the Optional Protocol to the Convention on
the Rights of the Child on the involvement of children in armed conflict. However, the Committee still
examines state reports submitted and makes general recommendations to the General Assembly on
state parties and their compliance with the Convention.

International Convention on the Protection of the Rights of All Migrant Workers and Members of their
Families

The latest of the UN's human rights treaties, the International Convention on the Protection of the
Rights of All Migrant Workers and Members of their Families, was adopted in 1990 and entered into
force July 1, 2003. It is monitored by the Committee on the Protection of the Rights of All Migrant
Workers and Members of their Families.

Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families

The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families
monitors the treaty under the same name. It is composed of 10 members, and its roles are: to
examine state reports submitted and to make general recommendations. Under the treaty, it will be
possible to address individual complaints once a minimum of ten states have agreed to the practice.