Chapter 1 IntroductionHuman Right
Chapter 1 IntroductionHuman Right
Chapter 1 IntroductionHuman Right
Human rights are rights which a person enjoys by virtue of being human, without any
supplementary condition being required.
Human rights are universal legal guarantees which protect individuals and groups
against action which interfere with fundamental freedoms and human dignity.
The idea of human rights originated from the need to protect individuals against the
(arbitrary) use of state power.
It covers:
Civil and political rights (right to life, liberty, property and democratic participation; Fair
trail rights);
Economic, social, cultural rights (rights to work, education, health, social security and an
adequate standard of living);
Human Rights and fundamental freedoms are guaranteed in the universal Declaration
of human Rights 1948 (UDHR) and in various treaties covenants and conventions),
declarations, guidelines and bodies of principles.
Characteristics Features of Human Rights
They are internationally guaranteed, and are universal. (Human rights apply equally for
all people, taking account of certain culture differences.)
They cannot be taken away by state in general. (But some right are derogable)
They are equal, interdependent, inalienable and indivisible. (No right is more important
than the other.
Eg. Without right to housing, the right to privacy has little meaning. Effectively
guaranteeing the right to education is essential for the meaningful exercise of the right
to vote and to freedom of opinion and information)
State Obligation
All human rights treaties reflect the notion that “It is primarily the duty of states and
their authorities to protect, respect and promote all human rights”
1. To Respect- States have a duty to ensure that human rights are respected by
state authorities or state agents themselves and by citizens, corporations and
other non-state actor operating within their boundaries.
2. To Protect- states have a duty to ensure that the constitution and other laws are
geared towards the protection of the human rights(both in relations between
the state and individuals, and individuals themselves.)
3. To Fulfill- States have a duty to ensure that human rights are promote and
implemented, so that individuals can fully enjoy those rights through the
development of adequate policies, the allocation of sufficient budgets and other
resources by the state, as well the creation of space for non-state actors to do
their work in a proper way.
Fundamental Right are those human right which are guaranteed in the
constitution of the country.
All fundamental Rights are human rights, but not all human right are
fundamental rights.
[Nepal is party to 7 core Human Rights Treaties – ICCPR, ICESER, CERD, CEDAW,
CRC, CAT, CRPD//+ Optional protocols of ICCPR, CRC, CEDAW}
Body of Principles for the protection of all persons under any form of
Detention or Imprisonment.
Etc
1. Monism-
2. Dualism-
States are free to choose the way, but they have to respect
international law. They are always accountable if they fail to adapt their
national legal system in a way that they can respect international law.
Once State becomes a party to any international law, State bears the
obligation to modify their legislative provisions, penal provisions and
culture Patterns I accordance with international instruments.
Both a monist state and a dualist state can comply with international law.
However, a Monist state is less at risk of violating international rules,
because its judges can apply international Law directly.
-Treaty Act 1990 Section 9(1): Anything contained in any law of Nepal
shall be void if it inconsistent to any provision of a treaty or agreement in
which Nepal is a party through ratification or accession or acceptance or
approval of the parliament, and such provision of the treaty or agreement shall
be enforced as a law of Nepal. (Monism)
“Judicial review is not possible when the Nepali Law contravenes with the
.treaty.”(Monism).
“Suoreme Court, being a Guardain of the Fundamental Rights of citizen, can issue an
order in the name of the government by invoking the extraordinary jurisdiction of the
court when Nepal does not comply with the Treaty obligation.” (Monism)
Dinesh Kumar sharma vs. Prime Minister’s Office, NKP 2063, Pg 1137 –
Dualist approach taken into consideration/ Contrasting precedent.
-“The treaty to which Nepal is a party, can be enforced as a law. But it cannot at once
be a law. Enforcing it as a law being a law are two different things. Not in all conditions
can treaty be accepted as a law formulated through the legal process.”
SUMMARY POINTS
. Human Rights law is a branch of International Law; Individual are its subject.
. Human Rights are inherent rights which a person enjoys by virtue of being human.
. Human Rights protect dignity of human beings and are universal, legally protected,
equal, interdependent, inalienable and indivisible.
. States, being guardian of citizens, have primary obligation to respect, protect and
fulfill all human rights.
.There are 9 core human rights treaties, of which Nepal is party to 7 treaties. Eg.
International Covenant on civil and Political rights (ICCPR) 1966; Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or Pinishment (CAT) 1984;
Convention on the Rights of the Child (CRC) 1989.
.Universal Declaration of Human Rights (UDHR), 1948 is the first international legal
instrument on human rights.
.Monism and Dualism are two different approaches to the process of assimilating and
harmonizing international law into national legal systems. Every state decides for itself
whether to follow monism or dualism.
. Under Treaty based monitoring mechanism, there are treaty bodies (Committees of
experts) that monitor the implementation status of the individual conventions by the
states parties. Eg. Human Rights Committee (HRC) established ICCPR.
. Major Functions of Treaty Bodies are:
. Charter based human rights monitoring mechanisms (also called Special Procedures)
examine, monitor, conduct country visit and publicly report to Human Rights Council on
findings and recommendations on humanrights situation in specific countries or on thematic
issues on worldwide level.
. Universal Periodic Review (UPR) is a new human rights mechanism through which Human
Rights Council reviews on a periodic basis, the fulfillment of human rights obligations and
commitments by each of the 193 United National Member States through interactive dialogue
sessions.
.Europe, the Americas and Africa have their own Regional Human Rights systems with regional
courts (European Court of Human Rights, Inter- American Court of Human Rights, African Court
on Human and Peoples’ Rights.). Asia do not have it.
. Other International Courts and ad hoc Tribunals exits. Eg.ICJ, ICC, ICTY,ICTR.
. international law provides Universal Jurisdiction for certain crimes which pose serious threat
to international community. No place can be a safe haven for the perpetrator. Eg. Torture
under CAT.