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Thursday, January 13, 2011

Human Rights Certificate Course. Monday 10/1/11.

The following notes were written by Sammitha Sreevathsa of IIJPE.
The session began with a discussion on human rights violation. HR is considered violated when any individual or an entity breaches any part of UDHR, other International human rights or Humanitarian law. 
Security Council is the appointed authority in UN (United Nations) that determines HR violations. To avoid a direct responsibility, or jurisdiction over its prisons and the HR violation that took place there, US conveniently dealt with their issues by allotting Guantanomo Bay to deal with the prisoners.The conditions were said to be violations of  HR for torturing the inmates of Guantanamo Bay and for not allowing them a fair trial. The charge on the US was withdrawn when it claimed no territorial jurisdiction over Guantanamo Bay. 
Unlike UK, (where trials for cases of violation from any part of the world can be conducted), The US continues to have an unstable status of it’s international jurisdiction. The trial for the case of Union Carbide gas leak in Bhopal, was also conducted in the US district court in Manhattan. But the rebellion that the Guantanamo Bay controversy provoked indicates the inability of (even) the powerful states like the US to ignore the Human Rights.
In order to get a place in UN security Council, India have had to condemn the violation of HR in other parts of the world, which once resulted in the loss of all contracts with Burma. This becomes the reason why India did not vote against Burma and abstained from voting for North Korea and Iran for the violation of Human Rights in November, 2010.
UDHR (Universal Declaration of Human Rights)
DISCLAIMER: Only the text in the Italics is self-written in this section.
UDHR has 30 articles. Following are the articles that were majorly discussed-
Article 1.
  • 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. (Not sisterhood, because such a terminology did not emerge due to the absence of feminism for a long period).
Article 2.
  • 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.(In ancient Greece, during the time of Socrates, when a large number of slaves existed, only people with property ownership were entitled to the citizenship of the city-state).Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.
Article 3.
Everyone has the right to life, liberty and security of person
Article 4.
  • No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. (Many problems that India has claimed to have were, by definition, not  prevalant. Eg. “Slavery” was only a term that was adopted, to a similar condition in India. Similarly a mystic is understood to have a private mystic experience in the west, but who we understand as Indian mystics today ; such as Basavanna, Akkamahadevi and Namdeo; are known so for their radical social works, which is far  from private experience).
Article 6.
Everyone has the right to recognition everywhere as a person (assuming that person is a neutral word; without any  social, economic and political connotation)
Article 9.
  • No one shall be subjected to arbitrary arrest, detention or exile. (Police force cannot arrest arbitrarily unless they are arresting under certain provisions such as TADA , CSPS Act etc.. Eg. Binayak Sen who was found guilty of sedition and allegedly supported the outlawed naxalites  was arrested under the provisions-CSPS Act 2005 and Unlawful Activities(Prevention) Act 1967)
Article 10.
  • Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11.
  • (1) Everyone charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense. (“presumed innocent”-Ajmal Kasab, accused of involvement in terrorism activities, was provided with a lawyer by the government in order to conduct a fair trial. Similarly the Dandupalya gang;arrested in Bangalore for committing murders ; was given death sentence. But, a lawyer has volunteered to take them for defence to the high court. This indicates that everyone is entitled to the right to defence).
  • (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at  the time the penal offence was committed.(Similarly a college or a university which very much functions within the framework of the law is not supposed to impose a different figure of compulsary attendance on a student batch previously exposed to different conditions in the course of the same programme).
Article 12.
  • No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
(Radia tapes were tapped by the Indian Income-tax department for 300 days in 2008-09, only after getting an authorization from the Home ministry. All the mobile messages and the e-mails are also recorded under an agreement with the service providers. The tag “cached”, in google, contains the recorded mails. These recored messages and mails are retained for a span of 4 years before being finally wiped. Although recorded, no individual or organization has the right to access it without a prior permission from the Home ministry).
Article 16.
  • (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.(The Indian constitution under the clause of national interest prohibits every Indian citizen from marrying a Pakistani and Bangladeshi citizen. Adnan Sami's divorce case became an issue because he happened to be a Pakistani who has married an Indian. The property which was claimed by her was confiscated by the government. )
  • (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
  • (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17.
  • (1) Everyone has the right to own property alone as well as in association with others. (With the exception of Goa, Kashmir, Sikkim and Arunachal Pradesh, in India, which have become a part of the country only with certain conditions) .
  • (2) No one shall be arbitrarily deprived of his property.
Article 20.
  • (1) Everyone has the right to freedom of peaceful assembly and association.
  • (2) No one may be compelled to belong to an association.
Article 21.
  • (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
  • (2) Everyone has the right of equal access to public service in his country.
  • (3) The will of the people (not God; unlike the divine rights system wherein a King or a Queen was considered to be a representative of God and the people were bound to obey them irrespective of all odds.) shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 23.
  • (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
  • (2) Everyone, without any discrimination, has the right to equal pay for equal work.
  • (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
  • (4) Everyone has the right to form and to join trade unions for the protection of his interests. (The Mahatma Gandhi Right to Work Act and the Minimum Wages Act emerge, in their essence, from this Article. The current minimum wage in India is Rs.100, last amended in 2009).
Article 26.
  • (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.(The right to education was guaranteed by the Indian Constitution in the year 1950. Every Indian has the right to free elementary education)
  • (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
  • (3) Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27.
  • (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
  • (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. (Refers to the right to collect Patent).

(One would observe that the UDHR, which began with Human rights moves on to Political rights and Economic rights. This is because every individual requires political rights and economic rights to claim and enjoy human rights respectively)
Article 28.
  • Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29.
  • (1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
  • (2) 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.
  • (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30.
  • Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.(This last article of UDHR nullifies the other 29 rights by claiming that no element of UDHR could be used, rather misused, to destroy any right mentioned in it.)
One can find similarities between the UDHR and the Indian Constitution because both are framed and the Indian Constitution is known to have derived many of it’s elements from the UDHR.

The UDHR(Universal Declaration of Human Rights), the ICCPR(International Covenant on Civil and Political Rights) and the ICESCR(International Covenant on Economic, Social and Cultural Rights) together constitute the International Bill of Human Rights. Unlike UDHR which is a declaration, ICCPR and ICESR are covenants ,ie treaties. A declaration is essentially a notification whereas a treaty is considered as an international agreement between two or more states. 

ICCPR (53 articles) and ICESR (33 articles)
What is a civil society and a political society? (ICCPR)
A society wherein people function as citizens, and can claim to have a fair set of laws is understood as a civil society , i.e. citizens are always referred to as civil and not political. A political society is a sphere of state and power, wherein people not just claim for a fair set of laws but desire to frame the laws for the state and exercise power over it. But before the political power is acquired and civil rights are claimed people need to be economically sound for which economic rights are provided. This is because each individual requires money to satisfy basic drives and needs such as food water and shelter. ICECR gives people labour rights, right to health, right to education and the right to adequate standard of living. Since ICCPR and ICESR are covenants they are obligated to provide the Language(s) that  they consider. It is similar to how the Latin Bible is considered most authentic. The article 53 of IPCCR notifies the covenant in Chinese, English, French, Russian and Spanish (spoken extensively in Latin America) texts as equally authentic. One can notice that these are the languages that are largely spoken in the States that constitute the Security Council. (Question was raised by a student that Chinese is not a language. It is written either in Mandarin or in Cantonese script. What is referred to as Chinese herein?),_Social_and_Cultural_Rights

CEDAW (Convention on the Elimination of all Forms of Discrimination against Women)
It consists of  30 articles. As suggested by the name, it works towards elimination of discrimination against women. This convention considers Arabic, Chinese, Spanish, French and English versions of the convention as authentic. The permanent members of the UN included these languages and since there was no language to represent the middle east, Arabic was also added.  Knowing atleast two of these languages is a pre-requisite to be able to work for UN. CEDAW is called the International Bill of Human Rights for Women. US has not signed CEDAW. India has signed but only partially. In India, many universities and work places do not encourage women because of the lack of promise of return after the maternity leave. But South Asian countries (barring China) have seen a decent women representation in comparison with the US. India has seen a woman president, a woman prime minister and a number of women politicians. Sri Lanka also has had a woman president-Chandrika B. Kumaratunga. Benazir Bhutto has twice been elected as the Prime Minister of Pakistan. Chief Justice is one position that a woman has not occupied in India but has in US.
Question by a student- What is the difference between Acts and Rules?
Response given- When a Bill which is passed , gets approved by two thirds majority of the parliament it becomes an Act. Rules are the provisions of the Act..

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