B.A. LL.B. (Five Years) Sem 8 Human Rights Law and Practice 2013 Jun Question Paper with Solutions

For full marks, cover: what international human rights law is (rules binding States in how they treat people within their jurisdiction); the traditional view (only States were subjects; treatment of nationals was a domestic matter); the stages of development: (1) the nineteenth-century beginnings (slave trade, the Geneva Convention of 1864); (2) the League of Nations period (minorities treaties, mandates, the ILO, the Slavery Convention 1926); (3) the UN Charter and Nuremberg in 1945, with the limit shown in Sei Fujii v. State of California; (4) standard-setting (the UDHR and the Genocide Convention 1948, the Covenants 1966, the core treaties), with a table; (5) implementation (treaty bodies and complaints, Toonen v. Australia; resolutions 1235 and 1503; Vienna 1993 and the High Commissioner; the Human Rights Council 2006); (6) regional systems (Lawless v. Ireland); (7) obligations owed to all and individual criminal responsibility (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); the tribunals and the ICC); the reception in India (Chairman, Railway Board v. Chandrima Das); an evaluation.

These were the first treaties made for the benefit of individuals. But they covered particular groups, not every person.

Stage 2: the League of Nations period

The Covenant of the League of Nations (1919) had no general human rights clause. A Japanese proposal for a racial equality clause failed. But three systems protected people:

1. The minorities treaties. New and enlarged States in central and eastern Europe guaranteed minorities equality, the use of their language and their own schools. Minorities could petition the League. This was the first system in which a group could complain to an international body about its own government.
2. The mandates. Former colonies of the defeated powers were held as "a sacred trust of civilisation" (Article 22 of the Covenant), with reports to a Permanent Mandates Commission.
3. The International Labour Organization (ILO), founded in 1919, adopted conventions on hours, minimum age and maternity, and created supervision by reports.

The limit of the Charter. In Sei Fujii v. State of California, 38 Cal.2d 718, decided on 17 April 1952, a Japanese alien had bought land. A State law forbade such aliens to own land, and the land was forfeited to the State. He relied on the Charter's human rights clauses. The California Supreme Court held that those clauses "are not self-executing". They stated purposes and pledges, not rules a court could apply. It struck the law down under the Fourteenth Amendment instead. The case shows that the Charter made human rights an international concern. It did not itself define or enforce them.

Stage 4: setting the standards

The next task was to write down the rights. The Universal Declaration of Human Rights was proclaimed on 10 December 1948, by 48 votes to none, with 8 abstentions. A day earlier, on 9 December 1948, the General Assembly adopted the Genocide Convention. Binding treaties followed.

1. Treaty bodies. Each core treaty created a committee of experts that examines State reports. Most can also hear individual complaints from States that accept them.
2. Charter procedures. ECOSOC resolution 1235 (1967) allowed public debate on gross violations, and resolution 1503 (1970) created a confidential complaints procedure.
3. Vienna and the High Commissioner. The Vienna Declaration of 25 June 1993 declared all human rights "universal, indivisible and interdependent and interrelated". The General Assembly then created the High Commissioner for Human Rights by resolution 48/141 of 20 December 1993.
4. The Human Rights Council. Resolution 60/251 of 15 March 2006 replaced the Commission with the Council. It created the Universal Periodic Review, under which every UN member, India included, is reviewed in turn.

In Lawless v. Ireland (No. 3), decided on 1 July 1961, the European Court gave its first judgment on the merits. G.R. Lawless, an admitted former IRA member, was detained without charge or trial in a military camp in 1957. The Court held that Articles 5 and 6 gave no basis for the detention. But it was justified by Ireland's valid derogation under Article 15, in a public emergency. The case still marks the start of an international court ruling on how a State treats its own people.

Stage 7: obligations owed to all, and individual responsibility

Obligations erga omnes. In Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), ICJ Reports 1970, p. 3, decided on 5 February 1970, Belgium sued Spain for losses of Belgian shareholders in a Canadian company. The claim failed, because Belgium lacked standing. But the Court distinguished obligations owed "towards the international community as a whole". Its examples included outlawing genocide and "the basic rights of the human person, including protection from slavery and racial discrimination". Human rights thus became the concern of every State, not only the victim's own.

Evaluation

International human rights law has moved from no rights for the individual, to standards, to machinery, and finally to courts and criminal responsibility. Its weakness is enforcement. Most treaty bodies can only recommend. States choose whether to accept complaints, and many, India among them, accept none. Regional courts work well in Europe and the Americas, but there is no regional system in Asia.

Conclusion. International human rights law began with scattered nineteenth-century treaties on slavery and the wounded in war. It passed through the League's selective minorities and labour systems to the UN Charter of 1945. Sei Fujii showed that the Charter's pledges were not self-executing. The Universal Declaration and the Genocide Convention of 1948 and the Covenants of 1966 then set the standards, and the core treaties extended them. Treaty bodies, the High Commissioner of 1993, the Council of 2006 and the regional courts built the machinery, as Toonen and Lawless show. Barcelona Traction made these rights the concern of all States, and the ICC made the worst violators answerable in person.