Monday 29 June 2009

Assam Rights Group Calls for Eradication of Torture

Assam Rights Group Calls for Eradication of Torture

Barak Human Rights Protection Committee (BHRPC), a human rights organization working in Assam, issued a statement on the occasion of International Anti-Torture Day on 26 June, 2009 demanding the Indian Authorities to ratify both the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol. The BHRPC also urged the authorities make laws for combating torture.

In the statement the BHRPC reiterated its conviction that torture is deliberate cruelty, a crude and ancient tool of political oppression. It is commonly used to terrorize people, or to wring confessions out of suspected criminals who may or may not be guilty. It is the classic shortcut for a lazy or incompetent investigator.

The statement said, torture destroys the physical and mental integrity of the victim to its core. It also dehumanizes the performer and thus irreparable damages done to men, women and children, families and communities. It prevents societies from nurturing the human and economic development that is a right for all people.

Torture is now absolutely and without any reservation prohibited under international law, whether in time of peace or of war. The prohibition of torture can be considered to belong to the rules of jus cogens. If ever a phenomenon was outlawed unreservedly and unequivocally it is torture.

It is also prohibited in India mainly by Article 21 of the Constitution, section 330 and 331 of the Indian Penal Code (IPC), 1860 and other laws and also strongly condemned by the Supreme Court of India and High Courts in a number of landmark cases like D. K. Basu Vs. State of West Bengal.

The laws that virtually make confession to a police officer inadmissible as a piece of evidence in a court of law such as Article 20 (3) of the Constitution, sections 25, 26 and 27 of the Indian Evidence Act, 1872 and sections 161, 162, 163 and 164 of the Criminal Procedure Code (CrPC), 1973 are rooted in the apprehension that police may subject the accused to torture to extract confession. It is a constitutional and statutory recognition that police may resort to torture and ill treatment.

The constitutional and statutory concern and mistrust of its own police and security forces is based on the experience of decades and find strong echo in judicial pronouncements. In Niranjan Singh v. Prabhakar Rajaram (AIR 1980 SC 785) the Supreme Court emphatically observed that, “The police instead of being protector of law, have become engineer of terror and panic putting people into fear.”

BHRPC is aware that there are no accurate data on the use of torture in India since the Government does not have an unambiguous and strong policy against torture. The National Human Rights Commission (NHRC) gathers figures on custodial deaths. But only a limited number of cases of torture results in death. Moreover, cause of death in the custody may not always be torture.

BHRPC relies on the Human rights groups with great credentials who maintain that torture is integral to counterinsurgency operations conducted by the military. Torture is used routinely in police custody. While torture is applied less systematically by prison officials, they remain often complicit in gang violence among inmates. Torture is also almost always resorted to by the Armed Opposition Groups. Torture is committed by the individuals or groups belonging to upper strata of the society upon the socially lower class people. Sometimes community organizations also resort to torture. Women and children are most vulnerable victims of regular torture in the form of domestic, sexual and other violence.

Any official denials of this level of torture should be balanced against the view of the Supreme Court of India that has pointed out that the police ‘more often than not seek to pervert the truth’. —State of Madhya Pradesh v. Shyam Sunder Trivedi and Ors. 1995 (4) SCC 262.
In the Unstarred Question No. 568, answered on 22.10.2008 in the Rajya Sabha it is stated that four persons died or had been killed in prison and police custody every day during the period between 2002-07 and as many as 7468 custodial deaths have occurred in the period but only a fraction are convicted for it.

Based on data provided by the NHRC the Asian Centre for Human Rights states in its report titled ‘TORTURE IN INDIA 2008: A State of Denial’ that about 1500 persons die in custody of the State each year. Only 4 police personnel were convicted in 2004 and 3 in 2005. In 2004, 37 personnel were charge sheeted and 25 personnel were charge-sheeted in 2005 for custodial death and other criminal offences. Impunity for these custodial crimes stands exposed from the accepted number of custodial deaths, compensation granted by the NHRC and courts based on the evidence, and the lack of corresponding prosecution of the guilty law enforcement personnel.
The staement asserted that there is no debate that the State is directly responsible for torture committed by its own officials and it also can not shun responsibility of protecting the citizens from non-state torturers and in cases of failure it has the obligation under international law as well as under Article 21 of the Constitution to provide and enforce rights of the victim to remedies, justice and truth including due punishment of violator. These figures point finger to a very grim state of things.

BHRPC claimed that the government of India practises double standard regarding torture and argued that there are laws in India which encourage, condone torture and provide immunity to the torturer. Section 4 (a) of the Armed Forces (Special Power) Act, 1958 empowers any commissioned officer, warrant officer, non-commissioned officer or any other person of equivalent rank in the armed force to ‘use force even to the causing of death’ against any person and section 6 ensures immunity of such torturer. Sections 45 and 197 of CrPC also guarantee such impunity.

These laws require prior permission of the government for the prosecution of security and law enforcement personnel accused of torture. It is argued that these legal immunity and protections are necessary to protect security forces and other law enforcement officials from false, malicious, frivolous and vexatious litigations for actions taken in good faith. This argument ignores that primarily it is the duty of the judiciary to see whether a complaint is based on false facts or malicious, frivolous and vexatious. The usurpation of this duty from the judiciary in this way amounts to statutory mistrust of the judiciary of the country.

Apart from this legal impunity, it is well known that there is a regime of de facto impunity for the police and security forces. In a country where normally police demand bribes for registering First Information Report it is almost impossible for the victims to get a case registered in a police station against any member of the police or security forces and attempt to do so often brings further suffering.

BHRPC also claimed that this double standard of the government of India towards torture is also evident from its attitude towards United Nations Human Rights Mechanism. India is a party to the International Covenant on Civil and Political Rights but has a reservation on Article 9, which, inter alia states that ‘anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation’. Reservation has been made on the grounds that “under the Indian Legal System, there is no enforceable right to compensation for persons claiming to be victims of unlawful arrest or detention against the State”.

Though the courts have regularly awarded compensation, there is no coherence to the awards, the amount of compensation depending on individual judges. Nonetheless, Courts across India continue to award compensation and prosecute the guilty law enforcement personnel. Increasingly, the courts have been directing the State to recover compensation from guilty personnel.

India signed the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) on 14 October, 1997. The government of India stated “ratification of the Convention is to follow”. More than a decade has passed since the signing of the Convention. Nepal and Sri Lanka have already ratified the CAT.

In its 2004-2005 Annual Report, the NHRC reported that the Ministry of Home Affairs informed the NHRC that Inter-Ministerial Group consisting of the Ministry of External Affairs, Ministry of Home Affairs and the Ministry of Law and Justice on the question of early ratification of the CAT had been established. To date no recommendation has been made public.

India has the dubious distinction of holding the record for refusing an invitation to the United Nations Special Rapporteur on Torture, which it has refused since 1993. Pakistan (1997), Nepal (September 2005), China (November 2005) and Sri Lanka (2007) have all invited the Special Rapporteur.

This double standard can also be seen in the constitution as well as conduct of the NHRC. The orders of the NHRC are not mandatory. They are just toothless recommendations. Moreover, NHRC is barred under section 19 of the Protection of Human Rights Act, 1993 to hold its own investigation into the cases involving armed forces.

NHRC has also developed a tendency to grant only monetary compensations ignoring its mandate to recommend for the initiation of prosecution. More over, there is a more disturbing aspect of NHRC’s conduct regarding torture cases. It has been seen that the NHRC has been dismissing cases of torture where a prima facie case exists; and in dismissing the case the NHRC has chosen to deny the complainants’ access to key evidence as well as denying the complainant a hearing. Under Section 13 of the Human Rights Protection Act, NHRC has the powers of a civil court for investigation purposes. Hence, NHRC is equivalent to a tribunal and while adjudicating the cases, complainants have the statutory and constitutional right to receive a copy of all the documents made available to the NHRC. The complainant has the constitutional right to a hearing before the NHRC passes a final order. Sometimes these aspects are totally ignored.

The statement informed that the BHRC submitted the following recommendations to the Prime Minister of India:

1. Enact a legislation to criminalise torture incorporating the provisions of the cat including putting the onus of proving innocence on the State in all cases of crimes in custody and provide compensation to the victims;

2. Repeal the Armed Forces (Special Powers) Act, 1958 and other laws providing impunity including Sections 45 and 197 of the CrPC.

3. Amend the Human Rights Protection Act, 1993 to make its recommendation mandatory and repeal section 19 in order to bring the armed forces under the purview of the NHRC;

4. Ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and its Optional Protocol;

5. Withdraw reservations to Articles 20, 21 and 22 of the CAT and Article 9 of the International Covenant on Civil and Political Rights;

6. Cooperate with the United Nations and extend invitation to the UN Special Rappoprteur on Torture whose request for visit has been pending since 1993.

Copies of the letter also sent to the Union Minister for Home Affairs, Union Minister for External Affairs, Union Minsiter for Law and Justice.

Monday 22 June 2009

Public Meeting on the International Anti-Torture Day

Invitation to Public Meeting on the International Anti-Torture Day


Event: Public Meeting on the International Anti-Torture Day.

Place: Office of the Barak Human Rights Protection Committee
Rongpur Part-IV (Near Uco Bank), Silchar-9, Assam

Date: June 22, 2009, Time: 11am onwards


Dear Madam/Sir,

To commemorate the INTERNATIONAL ANTI-TORTURE DAY, Barak Human Rights Protection Committee (BHRPC) organizes a public meeting on TORTURE to raise awareness among the general people about the destructive impact of torture on the victim, torturer and the society in which torture occurs.

It is well recognized that torture destroys and dehumanizes men, women and children, families and communities. It prevents societies from nurturing the human and economic development that is a right for all people. It is prohibited absolutely by the peremptory norms of International and customary law.

Torture is prohibited in India by Article 21 of the Constitution, section 330 and 331 of the Indian Penal Code, 1860 and other laws and also strongly condemned by the Supreme Court of India and High Courts in a number of landmark cases like D. K. Basu Vs. State of West Bengal.

But till date these noble provisions mostly remain ineffective. The number of torture cases and barbarity of torture methods are increasing in India, especially in remote areas like North East India. Torture in the custody of police and security forces in the name of interrogation is thought here as a normal thing. India is the country where the largest number of custodial deaths in the world occurs.

India has not yet ratified the United Nations Convention Against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), though it is signatory to the Convention. There is no clear and comprehensive legislation providing effective mechanism to prevent torture, to provide remedies and rehabilitations to the victim and to punish the torturers.

The senior members of the BHRPC and intellectuals will talk on:

1. Relation between Socio-Economic Situation and Torture,

2. Need for Ratification of the CAT and its Optional Protocol by India,

3. Need for a Comprehensive Legislation against Torture and the Prevention of Torture Bill, 2008 and other related topics

There will also be an interactive session between the audience and the speakers.

You are cordially requested to participate in the event to make it a grand success.

Yours truly,

Neharul Ahmed Mazumder,
Secretary General, BHRPC
Silchar
20/06/2009

Statement of BHRPC on the Risk of Impunity in a Rape Case

For Immediate Release

Date: 22 June, 2009

Statement of BHRPC on the Risk of Impunity in a Rape Case

Barak Human Rights Protection Committee (BHRPC), a human rights organization working in Assam today wrote to the chairperson of the National Commission for Women (NCW) soliciting her immediate intervention in a case of gang rape committed about two and a half year earlier in the Silchar Medical College and Hospital (SMCH), Silchar, Assam on a minor girl.

Rustana Begum, daughter of a widow named Sunapakhi Bibi belonging to the poorest stratum of the society, resident of Kanchanpur Pt-I in the district of Hailakandi, Assam, aged about 15 years at the time of the incident, was gang-raped in the SMCH at about 5 pm on 2 February 2008 by two security guards on duty. Later in the night Mr. Shushantha Nath and Mr. Surendra Singh, the two in-charges of security at the SMCH on behalf of the Barak Security Agency, a private security agency providing security to the SMCH under a contract, threatened the victim, her mother and her relative Abdul Mannan with death and other dire consequences and asked them not to disclose the incident to anybody and not to inform the police.

However, after meeting BHRPC members Sunapakkhi Bibi, the mother of the victim lodged a complaint regarding the matter with the police, which was registered as First Information Report (FIR) vide. Silchar Police Station Case No 208.08 dated 6/02/08. The BHRPC also filed a complaint with the Assam Human Rights Commission (AHRC), which was registered vide AHRC Case No. 6649/2008.

The AHRC issued notice asking the authorities for a report regarding the case which was complied with eventually and the Superintendent of Police (SP), Cachar submitted his ‘Enquiry Report’ to the AHRC.

The report is mysteriously silent on the claims of the BHRPC made in the complaint on the basis of its fact finding report that: (i) Mr. Atul Das, a public servant working as ‘chowkidar’ (fourth grade employee) in the SMCH abetted the offence; (ii) Mr. M K Dey, the Superintendent, SMCH, and Mr. Sushanta Nath and Mr. Surendra Singh, both were in-charges of security of the SMCH on behalf of BSA, the private security firm and facilitated the act of rape by negligence in their duty; (iii) Mr. N U Laskar, In-Cachgre (I/C) of the Ghughoor Out Post, a police out post under Silchar Police Station, Mr. Ashok Saha, Officer-in-Charge (O/C) of Silchar Police Station, Mr. Satyen Gogoi, SP, Cachar (as he was then), Mr. Gautom Ganguly, the Deputy Commissioner/District Magistrate (DC/DM), Cachar violated the consequential rights to remedies and legal and psychological assistance.

Though the SP concedes in his report that “(a) prima facie case is well established against the FRI named accd. persons” but makes utterly false claims that ‘all possible attempts have been made to effect the arrest of the FIR named accused but both the accused are found absconding to evade the police arrest. No attempts have been made to arrest the accused. The accused are not absconding. There is no effort to arrest the accused by the police.

This fact alone speaks of the negligence of the police to bring the accused to justice and ensure that the victim gets her right to justice. More over, the AHRC also has not yet recommended to the Government any interim relief even after the police admitted that a prima facie case is established.

BHRPC thinks that there is a huge risk of impunity and defeat of justice and, therefore, urged the NCW to intervene in the case and ask the Government of Assam, inter alia: (i) to entrust the investigation of the case to the CB, CID, Assam Police; (ii) to conduct the trial in a fast track court; (iii) to grant adequate compensation to the victim.

Released by

Waliullah Ahmed Laskar

Information and Liaison Officer,

Barak Human Rights Protection Committee



--
W A Laskar
Freelance Reporter and Human Rights Activist
with Barak Human Rights Protection Committee,
http://bhrpc.net.googlepages.com
15, Panjabari Road, Darandha, Six Mile,
Guwahati-781037, Assam, India
Cell: +919401134314

Tuesday 16 June 2009

International Bill of Human Rights

1. Universal Declaration of Human Rights 1948

2. International Covenant on Economic, Social and Cultural Rights 1966

3. International Covenant on Civil and Political Rights 1966

4. Optional Protocol to the International Covenant on Civil and Political Rights

5. Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

Introduction to the International Bill of Human Rights

This introduction to the International Bill of Human Rights is a reproduction of the Fact Sheet No.2 (Rev.1), The International Bill of Human Rights published by the Office of the United Nations High Commissioner for Human Rights and printed at United Nations, Geneva in June 1996.

“Background

The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols.

Human rights had already found expression in the Covenant of the League of Nations, which led, inter alia, to the creation of the International Labour Organisation. At the 1945 San Francisco Conference, held to draft the Charter of the United Nations, a proposal to embody a "Declaration on the Essential Rights of Man" was put forward but was not examined because it required more detailed consideration than was possible at the time. The Charter clearly speaks of "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion" (Art. 1, para. 3). The idea of promulgating an "international bill of rights" was also considered by many as basically implicit in the Charter.

The Preparatory Commission of the United Nations, which met immediately after the closing session of the San Francisco Conference, recommended that the Economic and Social Council should, at its first session, establish a commission for the promotion of human rights as envisaged in Article 68 of the Charter.

Accordingly, the Council established the Commission on Human Rights early in 1946.

At its first session, in 1946, the General Assembly considered a draft Declaration on Fundamental Human Rights and Freedoms and transmitted it to the Economic and Social Council "for reference to the Commission on Human Rights for consideration . . . in its preparation of an international bill of rights" (resolution 43 (I)).

The Commission, at its first session early in 1947, authorized its officers to formulate what it termed "a preliminary draft International Bill of Human Rights". Later the work was taken over by a formal drafting committee, consisting of members of the Commission from eight States, selected with due regard for geographical distribution.

Towards the Universal Declaration

In the beginning, different views were expressed about the form the bill of rights should take. The Drafting Committee decided to prepare two documents: one in the form of a declaration, which would set forth general principles or standards of human rights; the other in the form of a convention, which would define specific rights and their limitations. Accordingly, the Committee transmitted to the Commission on Human Rights draft articles of an international declaration and an international convention on human rights. At its second session, in December 1947, the Commission decided to apply the term "International Bill of Human Rights" to the series of documents in preparation and established three working groups: one on the declaration, one on the convention (which it renamed "covenant") and one on implementation. The Commission revised the draft declaration at its third session, in May/June 1948, taking into consideration comments received from Governments. It did not have time, however, to consider the covenant or the question of implementation. The declaration was therefore submitted through the Economic and Social Council to the General Assembly, meeting in Paris.

By its resolution 217 A (III) of 10 December 1948, the General Assembly adopted the Universal Declaration of Human Rights as the first of these projected instruments.

Towards the International Covenants

On the same day that it adopted the Universal Declaration, the General Assembly requested the Commission on Human Rights to prepare, as a matter of priority, a draft covenant on human rights and draft measures of implementation. The Commission examined the text of the draft covenant in 1949 and the following year it revised the first 18 articles, on the basis of comments received from Governments. In 1950, the General Assembly declared that "the enjoyment of civic and political freedoms and of economic, social and cultural rights are interconnected and interdependent" (resolution 421 (V), sect. E). The Assembly thus decided to include in the covenant on human rights economic, social and cultural rights and an explicit recognition of the equality of men and women in related rights, as set forth in the Charter. In 1951, the Commission drafted 14 articles on economic, social and cultural rights on the basis of proposals made by Governments and suggestions by specialized agencies. It also formulated 10 articles on measures for implementation of those rights under which States parties to the covenant would submit periodic reports. After a long debate at its sixth session, in 1951/1952, the General Assembly requested the Commission "to draft two Covenants on Human Rights, . . . one to contain civil and political rights and the other to contain economic, social and cultural rights" (resolution 543 (VI), para. 1). The Assembly specified that the two covenants should contain as many similar provisions as possible. It also decided to include an article providing that "all peoples shall have the right of self-determination" (resolution 545 (VI)).

The Commission completed preparation of the two drafts at its ninth and tenth sessions, in 1953 and 1954. The General Assembly reviewed those texts at its ninth session, in 1954, and decided to give the drafts the widest possible publicity in order that Governments might study them thoroughly and that public opinion might express itself freely. It recommended that its Third Committee start an article-by-article discussion of the texts at its tenth session, in 1955. Although the article-by-article discussion began as scheduled, it was not until 1966 that the preparation of the two covenants was completed.

The International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights were adopted by the General Assembly by its resolution 2200 A (XXI) of 16 December 1966. The first Optional Protocol to the International Covenant on Civil and Political Rights, adopted by the same resolution, provided international machinery for dealing with communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant.

Universal Declaration of Human Rights

The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among, the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Forty-eight States voted in favour of the Declaration, none against, with eight abstentions. In a statement following the voting, the President of the General Assembly pointed out that adoption of the Declaration was "a remarkable achievement, a step forward in the great evolutionary process. It was the first occasion on which the organized community of nations had made a Declaration of human rights and fundamental freedoms. The instrument was backed by the authority of the body of opinion of the United Nations as a whole, and millions of people -men, women and children all over the world- would turn to it for help, guidance and inspiration.

The Declaration consists of a preamble and 30 articles, setting forth the human rights and fundamental freedoms to which all men and women, everywhere in the world, are entitled, without any discrimination.

Article 1, which lays down the philosophy on which the Declaration is based, reads:

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

The article thus defines the basic assumptions of the Declaration: that the right to liberty and equality is man's birthright and cannot be alienated: and that, because man is a rational and moral being, he is different from other creatures on earth and therefore entitled to certain rights and freedoms which other creatures do not enjoy.

Article 2, which sets out the basic principle of equality and non discrimination as regards the enjoyment of human rights and fundamental freedoms, forbids "distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

Article 3, the first cornerstone of the Declaration, proclaims the right to life, liberty and security of person –a right essential to the enjoyment of all other rights. This article introduces articles 4 to 21, in which other civil and political rights are set out, including: freedom from slavery and servitude; freedom from torture and cruel, inhuman or degrading treatment or punishment; the right to recognition everywhere as a person before the law; the right to an effective judicial remedy; freedom from arbitrary arrest, detention or exile; the right to a fair trial and public hearing by an independent and impartial tribunal; the right to be presumed innocent until proved guilty; freedom from arbitrary interference with privacy, family, home or correspondence; freedom of movement and residence; the right of asylum; the right to a nationality; the right to marry and to found a family; the right to own property; freedom of thought, conscience and religion; freedom of opinion and expression; the right to peaceful assembly and association; and the right to take part in the government of one's country and to equal access to public service in one's country.

Article 22, the second cornerstone of the Declaration, introduces articles 23 to 27, in which economic, social and cultural rights -the rights to which everyone is entitled "as a member of society" -are set out. The article characterizes these rights as indispensable for human dignity and the free development of personality, and indicates that they are to be realized "through national effort and international cooperation". At the same time, it points out the limitations of realization, the extent of which depends on the resources of each State.

The economic, social and cultural rights recognized in articles 22 to 27 include the right to social security; the right to work; the right to equal pay for equal work; the right to rest and leisure; the right to a standard of living adequate for health and well-being; the right to education; and the right to participate in the cultural life of the community.

The concluding articles, articles 28 to 30, recognize that everyone is entitled to a social and international order in which the human rights and fundamental freedoms set forth in the Declaration may be fully realized, and stress the duties and responsibilities which each individual owes to his community. Article 29 states that "in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society". It adds that in no case may human rights and fundamental freedoms be exercised contrary to the purposes and principles of the United Nations. Article 30 emphasizes that no State, group or person may claim any right, under the Declaration, "to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth" in the Declaration.

Importance and influence of the Declaration

Conceived as "a common standard of achievement for all peoples and all nations", the Universal Declaration of Human Rights has become just that: a yardstick by which to measure the degree of respect for, and compliance with, international human rights standards.

Since 1948 it has been and rightly continues to be the most important and far-reaching of all United Nations declarations, and a fundamental source of inspiration for national and international efforts to promote and protect human rights and fundamental freedoms. It has set the direction for all subsequent work in the field of human rights and has provided the basic philosophy for many legally binding international instruments designed to protect the rights and freedoms which it proclaims.

In the Proclamation of Teheran, adopted by the International Conference on Human Rights held in Iran in 1968, the Conference agreed that "the Universal Declaration of Human Rights states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community". The Conference affirmed its faith in the principles set forth in the Declaration, and urged all peoples and Governments "to dedicate themselves to [those] principles . . . and to redouble their efforts to provide for all human beings a life consonant with freedom and dignity and conducive to physical, mental, social and spiritual welfare".

In recent years, there has been a growing tendency for United Nations organs, in preparing international instruments in the filed of human rights, to refer not only to the Universal Declaration, but also to other parts of the International Bill of Human Rights.

International Covenants on Human Rights

The preambles and articles 1, 3 and 5 of the two International Covenants are almost identical. The preambles recall the obligation of States under the Charter of the United Nations to promote human rights; remind the individual of his responsibility to strive for the promotion and observance of those rights; and recognize that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.

Article 1of each Covenant states that the right to self-determination is universal and calls upon States to promote the realization of that right and to respect it.

The article provides that "All peoples have the right of self-determination" and adds that "By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development". Article 3, in both cases, reaffirms the equal right of men and women to the enjoyment of all human rights, and enjoins States to make that principle a reality. Article 5, in both cases, provides safeguards against the destruction or undue limitation of any human right or fundamental freedom, and against misinterpretation of any provision of the Covenants as a means of justifying infringement of a right or freedom or its restriction to a greater extent than provided for in the Covenants. It also prevents States from limiting rights already enjoyed within their territories on the ground that such rights are not recognized, or recognized to a lesser extent, in the Covenants.

Articles 6 to 15 of the International Covenant on Economic, Social and Cultural Rights recognize the rights to work (art. 6); to the enjoyment of just and favourable conditions of work (art. 7); to form and join trade unions (art. 8); to social security, including social insurance (art. 9); to the widest possible protection and assistance for the family, especially mothers, children and young persons (art. 10); to an adequate standard of living (art. I 1); to the enjoyment of the highest attainable standard of physical and mental health (art. 12); to education (arts. 13 and 14); and to take part in cultural life (art. 15).

In its articles 6 to 27, the International Covenant on Civil and Political Rights protects the right to life (art. 6) and lays down that no one is to be subjected to torture or to cruel, inhuman or degrading treatment or punishment (art. 7); that no one is to be held in slavery; that slavery and the slave-trade are to be prohibited; and that no one is to be held in servitude or required to perform forced or compulsory labour (art. 8); that no one is to be subjected to arbitrary arrest or detention (art. 9); that all persons deprived of their liberty are to be treated with humanity (art. 10); and that no one is to be imprisoned merely on the ground of inability to fulfil a contractual obligation (art. 11).

The Covenant provides for freedom of movement and freedom to choose a residence (art. 12) and for limitations to be placed on the expulsion of aliens lawfully in the territory of a State party (art. 13). It makes provision for the equality of all persons before the courts and tribunals and for guarantees in criminal and civil proceedings (art. 14). It prohibits retroactive criminal legislation (art. 15); lays down the right of everyone to recognition everywhere as a person before the law (art. 16); and calls for the prohibition of arbitrary or unlawful interference with an individual's privacy, family, home or correspondence, and of unlawful attacks on his honour and reputation (art. 17).

The Covenant provides for protection of the rights to freedom of thought, conscience and religion (art. 18) and to freedom of opinion and expression (art. 19). It calls for the prohibition by law of any propaganda for war and of any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (art. 20). It recognizes the right of peaceful assembly (art. 21) and the right to freedom of association (art. 22). It also recognizes the right of men and women of marriageable age to marry and to found a family, and the principle of equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution (art. 23). It lays down measures to protect the rights of children (art. 24), and recognizes the right of every citizen to take part in the conduct of public affairs, to vote and to be elected, and to have access, on general terms of equality, to public service in his country (art. 25). It provides that all persons are equal before the law and are entitled to equal protection of the law (art. 26). It also calls for protection of the rights of ethnic, religious and linguistic minorities in the territories of States parties (art. 27).

Finally, article 28 provides for the establishment of a Human Rights Committee responsible for supervising implementation of the rights set out in the Covenant.

Conditions

The Universal Declaration of Human Rights affirms that the exercise of a person's rights and freedoms may be subject to certain limitations, which must be determined by law, solely for the purpose of securing due recognition of the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Rights may not be exercised contrary to the purposes and principles of the United Nations, or if they are aimed at destroying any of the rights set forth in the Declaration (arts. 29 and 30).

The International Covenant on Economic, Social and Cultural Rights states that the rights provided for therein may be limited by law, but only in so far as it is compatible with the nature of the rights and solely to promote the general welfare in a democratic society (art. 4).

Unlike the Universal Declaration and the Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights contains no general provision applicable to all the rights provided for in the Covenant authorizing restrictions on their exercise. However, several articles in the Covenant provide that the rights being dealt with shall not be subject to any restrictions except those which are prescribed by law and are necessary to protect national security, public order, or the rights and freedoms of others.

Certain rights, therefore, may never be suspended or limited, even in emergency situations. These are the rights to life, to freedom from torture, to freedom from enslavement or servitude, to protection from imprisonment for debt, to freedom from retroactive penal laws, to recognition as a person before the law, and to freedom of thought, conscience and religion.

The Covenant on Civil and Political Rights allows a State to limit or suspend the enjoyment of certain rights in cases of officially proclaimed public emergencies which threaten the life of the nation. Such limitations or suspensions are permitted only "to the extent strictly required by the exigencies of the situation" and may never involve discrimination solely on the ground of race, colour, sex, language, religion or social origin (art. 4). The limitations or suspensions must also be reported to the United Nations.

First Optional Protocol

The first Optional Protocol to the International Covenant on Civil and Political Rights enables the Human Rights Committee, set up under that Covenant, to receive and consider communications from individuals claiming to be victims of violations of any of the rights set forth in the Covenant. Under article I of the Optional Protocol, a State party to the Covenant that becomes a party to the Protocol recognizes the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction who claim to be victims of a violation by that State of any of the rights set forth in the Covenant. Individuals who make such a claim, and who have exhausted all available domestic remedies, are entitled to submit a written communication to the Committee (art. 2).

Such communications as are determined to be admissible by the Committee (in addition to article 2, articles 3 and 5 (2) lay down conditions for admissibility) are brought to the attention of the State party alleged to be violating a provision of the Covenant. Within six months, that State must submit to the Committee written explanations or statements clarifying the matter and indicating the remedy, if any, that it may have applied (art. 4).

The Human Rights Committee considers the admissible communications, at closed meetings, in the light of all written information made available to it by the individual and the State party concerned. It then forwards its views to the State party and to the individual (art. 5).

A summary of the Committee's activities under the Optional Protocol is included in the report which it submits annually to the General Assembly through the Economic and Social Council (art. 6).

Second Optional Protocol

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, was adopted by the General Assembly by its resolution 44/128 of 15 December 1989. Under its article 1, no one within the jurisdiction of a State party to the Protocol may be executed.

Under article 3 of the Protocol, States parties must include in the reports which they submit to the Human Rights Committee information on measures taken to give effect to the Protocol. Article 5 of the Second Optional Protocol provides that, with respect to any State party to the first Optional Protocol, the competence of the Human Rights Committee to receive and consider communications from individuals subject to that State's jurisdiction shall extend to the provisions of the Second Optional Protocol, unless the State party concerned has made a statement to the contrary at the moment of ratification or accession.

Under article 6, the provisions of the Second Optional Protocol apply as additional provisions to the Covenant.

Entry into force of the Covenants and the Optional Protocols

The International Covenant on Economic, Social and Cultural Rights entered into force on 3 January 1976, three months after the date of deposit with the Secretary-General of the thirty-fifth instrument of ratification or accession, as provided in article 27. As at 30 September 1995, the Covenant had been ratified or acceded to by 132 States:

Afghanistan, Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Germany, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Hungary, Iceland, India, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lebanon, Lesotho, Libyan Arab Jamahiriya, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Mongolia, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syrian Arab Republic, The former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Ukraine, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Venezuela, Viet Nam, Yemen, Yugoslavia, Zaire, Zambia and Zimbabwe.

The International Covenant on Civil and Political Rights entered into force on 23 March 1976, three months after the date of deposit with the Secretary-General of the thirty-fifth instrument of ratification or accession, as provided in article 49. As at 30 September 1995, the Covenant had been ratified or acceded to by 132 States:

Afghanistan, Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Georgia, Germany, Grenada, Guatemala, Guinea, Guyana, Haiti, Hungary, Iceland, India, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lebanon, Lesotho, Libyan Arab Jamahiriya, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Mongolia, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Slovakia, Slovenia, Somalia, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syrian Arab Republic, The former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Uganda, Ukraine, United Kingdom, United Republic of Tanzania, United States of America, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zaire, Zambia and Zimbabwe.

As at the same date, 44 States parties to the International Covenant on Civil and Political Rights had made the declaration under its article 41, recognizing the competence of the Human Rights Committee "to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations" under the Covenant. The provisions of article 41 entered into force on 28 March 1979 in accordance with paragraph 2 of that article.

The first Optional Protocol to the International Covenant on Civil and Political Rights entered into force simultaneously with the Covenant, having received the minimum 10 ratifications or accessions required. As at 30 September 1995, 85 States parties to the Covenant had also become parties to the first Optional Protocol:

Algeria, Angola, Argentina, Armenia, Australia, Austria, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cyprus, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Equatorial Guinea, Estonia, Finland, France, Gambia, Georgia, Germany, Guinea, Guyana, Hungary, Iceland, Ireland, Italy, Jamaica, Kyrgyzstan, Latvia, Libyan Arab Jamahiriya, Lithuania, Luxembourg, Madagascar, Malta, Mauritius, Mongolia, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Slovakia, Slovenia, Somalia, Spain, Suriname, Sweden, The former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Ukraine, Uruguay, Uzbekistan, Venezuela, Zaire and Zambia.

The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, entered into force on 11 July 1991, having received the minimum 10 ratifications or accessions required. As at 30 September 1995, the Protocol had been ratified or acceded to by 28 States:

Australia, Austria, Denmark, Ecuador, Finland, Germany, Hungary, Iceland, Ireland, Italy, Luxembourg, Malta, Mozambique, Namibia, Netherlands, New Zealand, Norway, Panama, Portugal, Romania, Seychelles, Slovenia, Spain, Sweden, Switzerland, The former Yugoslav Republic of Macedonia, Uruguay and Venezuela.

Worldwide influence of the International Bill of Human Rights

From 1948, when the Universal Declaration of Human Rights was adopted and proclaimed, until 1976, when the International Covenants on Human Rights entered into force, the Declaration was the only completed portion of the International Bill of Human Rights. The Declaration, and at a later stage the Covenants, exercised a profound influence on the thoughts and actions of individuals and their Governments in all parts of the world.

The International Conference on Human Rights, which met at Teheran from 22 April to 13 May 1968 to review the progress made in the 20 years since the adoption of the Universal Declaration and to formulate a programme for the future, solemnly declared in the Proclamation of Teheran:

1. It is imperative that the members of the international community fulfil their solemn obligations to promote and encourage respect for human rights and fundamental freedoms for all without distinctions of any kind such as race, colour, sex, language, religion, political or other opinions;

2. The Universal Declaration of Human Rights states a common understanding, of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community;

3. The International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Declaration on the Granting of Independence to Colonial Countries and Peoples, the International Convention on the Elimination of All Forms of Racial Discrimination as well as other conventions and declarations in the field of human rights adopted under the auspices of the United Nations, the specialized agencies and the regional intergovernmental organizations, have created new standards and obligations to which States should conform;

. . .

Thus, for more than 25 years, the Universal Declaration on Human Rights stood alone as an international "standard of achievement for all peoples and all nations". It became known and was accepted as authoritative both in States which became parties to one or both of the Covenants and in those which did not ratify or accede to either. Its provisions were cited as the basis and justification for many important decisions taken by United Nations bodies; they inspired the preparation of a number of international human rights instruments, both within and outside the United Nations system; they exercised a significant influence on a number of multilateral and bilateral treaties; and they had a strong impact as the basis for the preparation of many new national constitutions and national laws.

The Universal Declaration came to be recognized as a historic document articulating a common definition of human dignity and values. The Declaration is a yardstick by which to measure the degree of respect for, and compliance with, international human rights standards everywhere on earth.

The coming into force of the Covenants, by which States parties accepted a legal as well as a moral obligation to promote and protect human rights and fundamental freedoms, did not in any way diminish the widespread influence of the Universal Declaration. On the contrary, the very existence of the Covenants, and the fact that they contain the measures of implementation required to ensure the realization of the rights and freedoms set out in the Declaration, gives greater strength to the Declaration.

Moreover, the Universal Declaration is truly universal in scope, as it preserves its validity for every member of the human family, everywhere, regardless of whether or not Governments have formally accepted its principles or ratified the Covenants. On the other hand, the Covenants, by their nature as multilateral conventions, are legally binding only on those States which have accepted them by ratification or accession.

In many important resolutions and decisions adopted by United Nations bodies, including the General Assembly and the Security Council, the Universal Declaration of Human Rights and one or both Covenants have been cited as the basis for action.

Nearly all the international human rights instruments adopted by United Nations bodies since 1948 elaborate principles set out in the Universal Declaration of Human Rights. The International Covenant on Economic, Social and Cultural Rights states in its preamble that it developed out of recognition of the fact that

in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.

A similar statement is made in the preamble to the International Covenant on Civil and Political Rights.

The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly in 1975 (resolution 3452 (XXX)), spells out the meaning of article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment. This prohibition was further reinforced by the adoption in 1984 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly resolution 39/46). Similarly, the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, proclaimed by the General Assembly in 1981 (resolution 36/55); clearly defines the nature and scope of the principles of non discrimination and equality before the law and the right to freedom of thought, conscience, religion and belief contained in the Universal Declaration and the International Covenants.

A similar situation prevails as regards international human rights instruments adopted outside the United Nations system. For example, the preamble to the Convention for the Protection of Human Rights and Fundamental Freedoms, adopted by the Council of Europe at Rome in 1950, concludes with the following words:

Being resolved, as the Governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration;

Article II of the Charter of the Organization of African Unity, adopted at Addis Ababa in 1963, provides that one of the purposes of the Organization is "to promote international cooperation, having due regard to the Charter of the United Nations and the Universal Declaration of Human Rights". The American Convention on Human Rights, signed at San José, Costa Rica, in 1969, states in its preamble that the principles to which it gives effect are those set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights.

Judges of the International Court of Justice have occasionally invoked principles contained in the International Bill of Human Rights as a basis for their decisions.

National and local tribunals have frequently cited principles set out in the International Bill of Human Rights in their decisions. Moreover, in recent years, national constitutional and legislative texts have increasingly provided measures of legal protection for those principles; indeed, many recent national and local laws are clearly modelled on provisions set forth in the Universal Declaration of Human Rights and the International Covenants, which remain a beacon for all present and future efforts in the field of human rights, both nationally and internationally.

Finally, the World Conference on Human Rights, held at Vienna in June 1993, adopted by acclamation the Vienna Declaration and Programme of Action, in which it welcomed the progress made in the codification of human rights instruments and urged the universal ratification of human rights treaties. In addition, all States were encouraged to avoid, as far as possible, the resort to reservations (part 1, para. 26).

Thus the International Bill of Human Rights represents a milestone in the history of human rights, a veritable Magna Carta marking mankind's arrival at a vitally important phase: the conscious acquisition of human dignity and worth.”

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