Human rights are defined as the inherent rights of every human being acquired by the virtue of one’s birth. These are the most basic and fundamental rights established to ensure a culturally, socially, politically, and economically acceptable standard of living. The concept of human rights does not make sense unless they are viewed as fundamental and inalienable, that is, unless these rights are absolute in their nature, and that neither the people themselves nor the governments, or even the international community has the power to take them away, this concept loses its value as well as meaning. These are also Negative Rights (requires others to abstain from interfering with your actions), which both the Governments and the International Community has the Responsibility to Protect these Rights of Humans, but more on this later.
The concept of human rights first emerged in the middle ages. The recognition of the secular notions of human rights was a significant moment in history for the international human rights regime. Over the centuries, the idea of human rights has passed through three generations. The first generation comprises of the aforementioned 17th and 18th century notions of human rights, mostly negative civil and political rights i.e. did not accrue a right, per se, but imposed a duty on the organisations responsible. The second generation consists the essentially positive (require others to provide you with either a good or service) economic, social, and cultural rights that included rights such as housing, education, adequate living standards, and health etc. these were the first to be recognized by various international as well as regional instruments. The complete international Bill of Human Rights, which is a name given to UN general Assembly Resolution 217 (iii) which consisted of Universal Declaration of Human rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social, and Cultural Rights, is based out of most of the second generation of human rights. However, the article 28 of Universal Declaration of Human Rights, which states that, “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized,” is the point of inception of the third generation of human rights. These “solidarity” rights include the rights to social, economic, and political development and the rights to access the resources of the Earth and the outer space, technical and scientific growth, environmental rights and humanitarian aid after disaster etc. Indian Reformer Hansa Mehta is credited for giving the UDHR a feminist outlook else it would have been Universal Declaration of the Rights of the Man instead of Human Rights. Part III of the Indian Constitution enshrines these revered Human Rights and our Constitutional Courts periodically interpret it to read in more rights with changing social milieu.
Though Human Rights are non-derogable, there is the exception of War. In India too, Part III Rights can be suspended in times of emergency with the exception of Right to Life. In International Law, where Human Rights cease Humanitarian Rights begin. International Humanitarian Law is the Human Rights of War Time owing their genesis to the Four Geneva Conventions. (Read Henry Dunant’s ‘A memory of Solferino’ which is the basis of the 4 GCs). Watch this short video to understand Rules of War.
Essentially there are four major Crimes under International Humanitarian Law that deals with mass atrocity crimes, i.e., Crimes against Humanity, War Crimes, Genocide and Crime of Aggression. These crimes are sub-divided into types and have various essentials. These Crimes are specifically governed under the Statute of the International Criminal Law and generally binding upon on states per the Customary International Humanitarian Law.
The UN Charter envisages the principle of Non-Intervention but permits intervention in case of self defence. The Security Council can also sanction Chapter VII measures for intervention if there is threat to International Peace and Security. Humanitarian Crisis, envisages Humanitarian Intervention, which is not merely Military Intervention but also entails Humanitarian Aid and Sanctions among other things.
In times of Humanitarian Crisis like that in 1990 in Rwanda where the International Community gazed with impotence and 800,000 people were hacked to death without any intervention by the international community, again 1995 in Bosnia 8000 boys again shot right under the nose of UN Peacekeepers. Virtually no consensus in the UNSC to act in a coherent way in responding to the Kosovo crisis and thereafter the actions of NATO to restore peace were frowned upon due to its disregard to the most revered principle of International Law, State Sovereignty.
The Secretary General of UN Kofi Annan posed the question that if Humanitarian Intervention is such a terrible assault on State Sovereignty then how do we respond to these terrible atrocities as an international community? In response the doctrine of Responsibility to Protect (R2P) was born (watch this video to understand R2P), claiming that it is not anybody’s business but everybody’s business. R2P was an ideological change from intervention to protection which was welcomed by the international community.
With numerous atrocities being perpetrated across the globe with flagrant disregard to human and humanitarian law and the discussion being pointed towards the need of municipal law to remedy, for instance say, the Rohingya Crisis, it must be noted that there is no need of municipal law per se. The International Law in this regard is enough. International Law has recognizes Customary International Law (CIL) as a source of law binding on all states. Refugee law is given the CIL status and since the erstwhile defence of persistent objector is now not available in case of human rights violations vide the opinion of Eritrea Ethiopia Claims Commission 2007 . Thus, the only use of a municipal law in this regard is that it will further entrench the international law. India does have an international obligation under CIL and also a responsibility to protect and the judiciary in this regard is well within its power to remind, and if need be, issue appropriate writs to the Government of India to fulfill its International Obligations as mandated in the Constitution of India.
Another interesting principle of International Law pertinent to Human Rights is that of Jus Cogens these are norms of International Law from which no derogation is permissible, come what may! Like Crime of Genocide is a jus cogens crime and can never be legally committed. Complimenting this principle is Obligation Erga Omnes which is an obligation owed by all states towards the community of states as a whole. This is to say that if Genocide is committed in Myanmarr then it is our Erga Omnes obligation to prosecute the perpetrators. It is not a surprise that a demand for International Criminal Tribunal has been raised to investigate into the Rohingya Crisis. Thus jus cogens is a principle which will protect most revered human rights without any exception and every state will has the obligation erga omnes to not only protect but also to bring the perpetrators to justice.
We hope that this blog will help you make a more informed opinion and expression while engaging in human rights discussions. Feel free to ask more thorny questions regarding human rights and we shall try to reach a legally and more importantly a socially (which drives the law) acceptable answer.
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Co-Authored by Fagun Sahni & Pranav Bhaskar Tiwari