LEGAL EFFECT OF THE UDHR

There are two conflicting views regarding the legal effect of the
UDHR,As per the first view, the UDHR is not a legally binding instrument
but possesses only moral and political force. Scholars who support this
view emphasize that the UDHR is not a treaty rather it is merely a non-
binding resolution adopted by the UNGA in the form of a declaration.
They state that the purpose of the UDHR, according to its preamble, is
to provide 'a common understanding' of the human rights and
fundamental freedoms referred to in the UN Charter and to serve 'as a
common standard of achievement for all peoples and all nations'. In
other words, it is a statement of ideals, a path finding instrumentand
simply a recommendation to States.Supporters of the first view further
point out the absence of legal force in the UDHR on the basis of the
debates which took place in the UNGA and the Third committee on the
UDHR. They argue that the UDHR was not intended or proposed to be a
legally binding instrumentas most of the Member States of the UN who
voted for the UNGA Resolution comprising UDHR insisted repeatedly
and emphatically on the fact that the Declaration was not a legal
document and possessed no legally bindingforce.

According to second view, the UDHR, since its adoption in 1948, has
undergone a dramatic transformation. It might not have been binding
when it was adopted but it has now become binding or assumed legal
implications. It has an indirect legal effect. Scholars who support this
view advance three theories in support of their claim. Firstly, they
argue that the UN's consistent reliance on the UDHR when applying the
human rights provisions of the UN Charter compels the conclusion that
the Declaration has come to be accepted as an authoritative
interpretation of these provisions.According to this view, the Member
States of the UN have agreed that they have an obligation under the
Charter to promote 'universal respect for, and observance of the rights
which the Declaration proclaims. Secondly, they contend that the
repeated reliance on and resort to the UDHR by governments and
intergovernmental organizations represent the requisite state practice
which is capable of giving rise to customary international law. This
theory leads to the conclusion that the Declaration, in toto,or, at the
very least, some of its provisions, e.g., prohibition of slavery, torture,
etc., and not all,have become customary international law and thus
binding on all states, not only on Member States of the UN. And thirdly,
they contend that the international human rights norms contained in
the UDHR constitute general principles of law.

INFLUENCE OF THE UDHR

The UDHR has exercised a profound influence, both internationally and

nationally, since its adoption. The UDHR provided the framework, upon
which the two international human rights covenants, i.e., ICCPR and
ICESCR, were constructed and adopted by the UNGA on 16 December
1966. It has been the source of inspiration and has been the basis for
the UN in making advances in standard setting as contained in number
of international human rights treaties.The core international human
rights instruments make reference to the UDHR. It has inspired a
number of declarations and international conventionsconcluded under
the auspices of the UN and of the specialized agencies. The UDHR as a
whole or its different articles have been frequently quoted in the
resolutions of the UNGAas justification for actions taken by the UN.
The UDHR has also inspired major regional human rights
instruments.These instruments refer to the UDHR in their preambles.
The practical importance of the UDHR has been demonstrated through
its invocation by the international as well as by the regional courts as an
aid to interpretation of relevant human rights treaties. The
international Court of Justice (ICJ) invoked the UDHR in relation to the
detention of hostages 'in conditions of hardships' in the Case
Concerning United States Diplomatic and Consular Staff in Tehran.ICJ
has also referred to the UDHR in number of cases, such as, the Asylum
Caseand Corfu Channel Case. International Criminal Court (ICC) has
referred the UDHR in Omar Al Bashir Case.The UDHR has also been
invoked by the European Court of Human Rights, as an aid to the
interpretation of the European Convention on Human Rights in Golder
Case of 1975. The provisions of the UDHR have also influenced various
national constitutions, laws, regulations, and policies that protect
fundamental human rights. It has served directly and indirectly as a
model for the rights provisions of some 90 constitutions.The UDHR is
frequently cited in support of judicial decisions which upheld a
particular right guaranteed under domestic constitutions or legislations,
e.g., Indian Supreme Court in the Chairman, Railway Board and others v
Mrs. ChandrimaDas and US Circuit Court of Appeals in Filartiga v Pena-
lralahave referred to the UDHR The discussion in the preceding sections
has emphasized the genesis, content and importance of the UDHR. It
adoption was a landmark event. It is the first instrument that should be
consulted when one tries to identify the contemporary content of
international human rights law. It spells out the fundamental and
minimum rights which everyone is entitled. The UDHR has set a
standard by which national behaviour can be measured and to which
nations can aspire. Although, there is a disagreement pertaining to legal
effect of the UDHR, but its importance within the context of human
rights law cannot be disregarded. And this point has been emphasized
by the Vienna Declaration and Programme of Action, 1993,when it
referred to the UDHR as the 'source of inspiration' and the basis for the
UN 'in making advances in standard setting as contained in the existing
international human rights instruments'.Through the Vienna
Declaration, Representatives of 171 countries affirmed by consensus
their commitment to the UDHR.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Synopsis

- INTRODUCTION

o International bill of rights

o ICCPR

o Purpose:

一 Structure of ICCPR

o Optional protocols

o International covenant on civil and political rights [ICCPR] & the

Constitution of India

The ICCPR is a key international human rights treaty, providing a range

of protections for civil and political rights. The ICCPR, together with the
Universal Declaration of Human Rights and the International Covenant
on Economic Social and Cultural Rights, are considered the
International Bill of Human Rights. International Bill of Rights,The
International Bill of Human Rights is an informal name given to one
General Assembly resolution

(UDHR) and two international treaties/covenants and one established

by the United Nations. It consists of:

1. Universal Declaration of Human Rights (adopted in 1948),

2. International Covenant on Civil and Political Rights (1966) with its

two Optional Protocols and

3. International Covenant on Economic, Social and Cultural Rights

(1966).The two covenants entered into force in 1976, after a sufficient
number of countries had ratified them.

The Bill influences the decisions and actions of Government, State and
Non-State actors to make economic, social and cultural rights a top-
priority in the formation and implementation of national, regional and
international policy and law.

ICCPR

In 1948 the United Nations General Assembly adopted the UDHR. The
UDHR is not a treaty, so it does not directly create legal obligations for
States. On the same day that it adopted the UDHR, the United Nations
General Assembly asked its Commission on Human Rights to draft a
covenant on human rights, which could become a binding treaty. After
six years of drafting and debate,in 1952 the General Assembly
requested that the Commission on Human Rights draft two covenants
rather than one.The covenants, International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights were opened for signature in 1966 and entered into
force in 1976.

PURPOSE:

The ICCPR recognizes the inherent dignity of each individual and

undertakes to promote conditions within states to allow the enjoyment
of civil and political rights. Countries that have ratified the Covenant are
obligated to protect and preserve basic human right and compelled to
take administrative, judicial, and legislative measures in order to
protect the rights enshrined in the treaty and to provide an effective
remedy." There are currently 74 signatories and 168 parties to the
ICCPR.

STRUCTURE OF ICCPR

The covenant contains six parts with 53 articles.

PART 1

-contains Article 1 which recognizes the right of all peoples to self

determination, including the right to "freely determine their political
status", pursues their economic, social and cultural goals, and manage
and dispose of their own resources. It recognizes a negative right of a
people not to be deprived of its means of subsistence, and imposes an
obligation on those parties still responsible for non-self governing and
trust territories (colonies) to encourage and respect their self-
determination

PART 2(A.2 TO 5)

-The unifying themes and values of the ICCPR are found in Articles 2
and 3 and are based on the notion of non-discrimination. Article 2
ensures that rights recognized in the ICCPR will be respected and be
available to everyone within the territory of those states who have
ratified the Covenant (State Party) and imposes a duty on the State
party to take all necessary steps to implement these rights. Article 3
ensures the equal right of both men and women to the enjoyment of all
civil and political rights set out in the ICCPR.

- Article 4 of ICCPR(Limitation on rights) allows for certain

circumstances for States Parties to derogate from their responsibilities
under the Covenant, such as during times of public
emergencies.However, State Parties may not derogate from Articles 6,
7, 8 (paragraphs I and 2),11,15,16 and 18

PART 3: RIGHTS (A.6-27)

Rights to physical integrity

1. Article 6- Right to life

2. Article 7 -Freedom from torture.

3. Article 8 - Right to not be enslaved.

Liberty and security of person

4. Article 9 - Right to liberty and security of the person.

5. Article 10 - Rights of detainees

6. Article 11- Right to not be imprisoned merely on the ground of

inability to fulfil a contractual obligation

Procedural fairness and rights of the accused

7. Article 14- Equality before the courts and tribunals. Right to a fair
trial.

8. Article 15- No one can be guilty of an act of a criminal offence which

did not constitute a criminal offence.

9. Article 16 - Right to recognition as a person before the law.

Individual liberties

10. Article 12 - Freedom of movement and choice of residence for

lawful residents.

11.Article 13-Rights of aliens.

12. Article 17 - Freedom from arbitrary or unlawful interference.

13. Article 18 - Right to freedom of thought, conscience and religion.

14. Article 19- Right to hold opinions without interference.

15. Article 20 - Propaganda for war shall be prohibited by law

16. Article 21- Right of peaceful assembly.

17. Article 22- Right to freedom of association with others.

18. Article 23 - Right to marry.

19. Article 24- Children's rights

20. Article 25 - Right to political participation.

21.Article 26 - Equality before the law.

22. Article 27 - Minority protection.

Article 3 the right against non-discrimination can be used an accessory

i.e., it can be relied upon in relation to any other right but cannot be
used independently