International Human Rights Law — UDHR, ICCPR, ICESCR, CEDAW, CRC

International human rights law is the post-1945 attempt to convert the moral claim that every person is entitled to a basic minimum of dignity into binding rules that bind States. Its architecture has three layers: a foundational declaration adopted in 1948 (the Universal Declaration of Human Rights, or UDHR), two general covenants opened for signature in 1966 (the International Covenant on Civil and Political Rights, ICCPR; and the International Covenant on Economic, Social and Cultural Rights, ICESCR), and a series of subject-specific conventions of which the most heavily litigated in Indian courts are the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Across the wider international law for judiciary notes on this site, this is the chapter that most often crosses the line from the international plane into Article 21 jurisprudence in domestic litigation.

For the judiciary aspirant, the rules to memorise are narrower than the field looks. You need the legal status of the UDHR, the ingredients of a treaty obligation under the two Covenants, the supervisory machinery (treaty bodies, periodic reports, Optional Protocols), the equality and non-discrimination overlay, and the leading Indian Supreme Court decisions that have used the international texts as interpretive aids under Articles 51 and 253 of the Constitution.

The Universal Declaration of Human Rights, 1948

The Universal Declaration was adopted by the UN General Assembly on 10 December 1948 without a dissenting vote — the eight abstentions came from the Soviet bloc, Saudi Arabia and South Africa. The preamble proclaims it as ‘a common standard of achievement for all peoples and all nations’ and was not, on its own terms, intended to be legally binding. Its thirty Articles cover the full sweep of civil, political, economic, social and cultural rights — liberty and security of the person (Article 3), equality before the law (Article 7), an effective remedy (Article 8), due process (Articles 9 and 10), prohibition of torture (Article 5), prohibition of arbitrary interference with privacy (Article 12), freedom of movement (Article 13), asylum (Article 14), conscience and religion (Article 18), expression (Article 19), assembly (Article 20), the right to work and equal pay (Article 23), the right to social security (Article 25), and the right to education (Article 26).

Whether the UDHR has hardened into binding customary international law is an old debate. The better view is that significant portions — the prohibition of torture, of slavery, of racial discrimination, of arbitrary detention, of denial of fair trial — now reflect customary norms; other portions are aspirational. The 1968 Proclamation of Tehran asserted that the Declaration constituted ‘an obligation for members of the international community’. In Indian courts, the UDHR has been treated as an authoritative interpretive guide to fundamental rights from the earliest decisions on the meaning of personal liberty under Article 21, and the Supreme Court’s cross-references to it run through the entire Article 38 ICJ Statute scheme of formal sources.

The International Covenant on Civil and Political Rights, 1966

The ICCPR was opened for signature on 16 December 1966 and entered into force on 23 March 1976 once thirty-five ratifications had been deposited. India acceded on 10 April 1979 with declarations on Articles 1, 9, 13 and 19, and a reservation on Article 22. The Covenant restates and refines the civil and political rights enumerated in the Declaration: the inherent right to life (Article 6), prohibition of torture (Article 7), prohibition of slavery (Article 8), liberty and security of person and protection against arbitrary arrest (Article 9), humane treatment in detention (Article 10), prohibition of imprisonment for debt (Article 11), freedom of movement (Article 12), procedural protection against expulsion of aliens lawfully present (Article 13), fair trial (Article 14), prohibition of retrospective criminal law (Article 15), recognition before the law (Article 16), privacy (Article 17), thought, conscience and religion (Article 18), expression (Article 19), prohibition of war propaganda and incitement (Article 20), peaceful assembly (Article 21), association including trade unions (Article 22), the family (Article 23), children (Article 24), political participation (Article 25), equality before the law (Article 26), and minority rights (Article 27).

Article 2(1) makes the obligation immediate — each State undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant, without distinction of any kind. Article 2(2) requires States to take such legislative or other measures as may be necessary to give effect to the rights, and Article 2(3) requires an effective remedy. Article 4 permits derogation in time of public emergency that threatens the life of the nation, but expressly excludes derogation from a non-derogable core: the right to life (Article 6), prohibition of torture (Article 7), slavery (Article 8(1) and (2)), imprisonment for debt (Article 11), retrospective criminal law (Article 15), recognition before the law (Article 16), and freedom of thought, conscience and religion (Article 18).

The Human Rights Committee

The supervisory body is the Human Rights Committee, established under Article 28 of the Covenant and composed of eighteen independent experts of high moral character and recognised competence in the field of human rights. Its functions are three-fold. First, under Article 40, every State party submits an initial report within one year of the Covenant entering into force for it and thereafter periodic reports on the measures it has adopted to give effect to the rights and on the progress made; the Committee studies the reports and transmits its concluding observations. Second, under Article 41 (an opt-in clause), States may accept the Committee’s competence to receive and consider inter-State complaints. Third, under the First Optional Protocol of 1966, individuals subject to the jurisdiction of a State party may submit communications alleging a violation of their Covenant rights once domestic remedies have been exhausted; the Committee examines the communication and forwards its ‘views’. India is not a party to the First Optional Protocol and therefore has not accepted the individual-communication procedure. The legal status of these views and observations is also discussed in the chapter on diplomatic and consular privileges and immunities, where the Vienna Conventions of 1961 and 1963 illustrate how supervisory pronouncements interact with State practice.

The International Covenant on Economic, Social and Cultural Rights, 1966

The ICESCR was opened for signature on the same day as the ICCPR and entered into force on 3 January 1976. India acceded on 10 April 1979. The Covenant guarantees rights to work (Article 6), just and favourable conditions of work including equal pay (Article 7), trade union freedoms (Article 8), social security (Article 9), protection of the family, mothers and children (Article 10), an adequate standard of living including food, clothing and housing (Article 11), the highest attainable standard of physical and mental health (Article 12), education (Articles 13 and 14), and participation in cultural life and the benefits of scientific progress (Article 15).

The structure of obligation differs from the ICCPR in a way that constantly trips up exam answers. Article 2(1) of the ICESCR requires each State party ‘to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights’. This is the doctrine of progressive realisation. Some core obligations — non-discrimination in the enjoyment of the rights (Article 2(2)), the equal right of men and women (Article 3), and a minimum core content of each right — are immediate; the rest is to be realised over time within available resources. The supervisory body is the Committee on Economic, Social and Cultural Rights, established by ECOSOC resolution in 1985 and composed of eighteen independent experts. The Optional Protocol to the ICESCR, in force since 5 May 2013, allows individual communications to that Committee; India is not a party.

CEDAW — Convention on the Elimination of All Forms of Discrimination against Women

CEDAW was adopted by the General Assembly on 18 December 1979 and entered into force on 3 September 1981. India ratified on 9 July 1993 with declarations on Articles 5(a) and 16(1) (concerning personal-law family matters) and a reservation on Article 29(1) on dispute settlement. CEDAW defines discrimination against women in Article 1 as ‘any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field’.

State obligations are substantive. States parties undertake to embody the principle of equality in their constitutions and laws (Article 2(a)), to adopt legislative and other measures including sanctions to prohibit discrimination (Article 2(b)), to ensure legal protection of the rights of women on an equal basis (Article 2(c)), to refrain from discriminatory acts and ensure that public authorities and institutions act in conformity (Article 2(d)), to take all appropriate measures to eliminate discrimination by any person, organisation or enterprise (Article 2(e)), to alter or repeal discriminatory laws and customs (Article 2(f) and (g)), and to take temporary special measures aimed at accelerating de facto equality (Article 4). Articles 7 to 16 then enumerate equality in political and public life, in nationality, in education, in employment, in health (including maternity), in economic and social benefits, for rural women, before the law and in marriage and family relations.

The supervisory body is the Committee on the Elimination of Discrimination against Women, of twenty-three experts. The Optional Protocol of 1999 establishes an individual-communication procedure and a confidential inquiry procedure for grave or systematic violations; India is not a party to the Optional Protocol. CEDAW’s most influential domestic moment in India came when the Supreme Court used Articles 11 and 24 of the Convention to formulate the workplace sexual-harassment guidelines in Vishaka v. State of Rajasthan (1997) 6 SCC 241, treating CEDAW as an authoritative source of content for the Article 21 right against sexual harassment because the Convention had been ratified and there was no inconsistent domestic law on point. The technique echoes the rule examined in the introduction to the nature and basis of international law: an unincorporated treaty can supply the content of a fundamental right where domestic law is silent. The Vishaka guidelines occupied the field until the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted to implement them statutorily.

CRC — Convention on the Rights of the Child

The CRC was adopted on 20 November 1989 and entered into force on 2 September 1990, the most rapidly and widely ratified human rights treaty in history. India acceded on 11 December 1992 with a declaration on the Article 32 minimum-age-of-employment rules to allow for progressive implementation in light of socio-economic conditions. The Convention defines a child as every human being below the age of eighteen years unless majority is attained earlier under the applicable law (Article 1) and rests on four guiding principles: non-discrimination (Article 2), the best interests of the child as a primary consideration in all actions concerning children (Article 3), the inherent right to life and to survival and development to the maximum extent possible (Article 6), and respect for the views of the child (Article 12).

Substantive Articles of CRC include the right to an identity and to know and be cared for by parents (Articles 7 and 8), protection from violence, abuse and neglect (Article 19), special protection for children deprived of family environment (Article 20), adoption safeguards (Article 21), refugee children (Article 22), children with disabilities (Article 23), the right to the highest attainable standard of health (Article 24), an adequate standard of living (Article 27), education (Articles 28 and 29), protection from economic exploitation (Article 32), narcotic drugs (Article 33), sexual exploitation (Article 34), trafficking (Article 35), juvenile justice (Article 40), and protection in armed conflict (Article 38). The supervisory body is the Committee on the Rights of the Child, of eighteen experts; three Optional Protocols cover involvement of children in armed conflict (2000), the sale of children, child prostitution and child pornography (2000), and a communications procedure (2011). India is a party to the first two Optional Protocols.

Other core human rights instruments — the ‘nine’ treaties

Beyond the UDHR, the two Covenants, CEDAW and CRC, the United Nations human rights treaty system commonly recognises nine core treaties. The remaining four are: the International Convention on the Elimination of All Forms of Racial Discrimination (CERD, 1965; India ratified 1968), which defines racial discrimination broadly and obliges States parties to prohibit and bring to an end racial discrimination by all appropriate means including legislation; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT, 1984; India has signed but not ratified, 1997); the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW, 1990; India is not a party); and the International Convention for the Protection of All Persons from Enforced Disappearance (CED, 2006; India has signed but not ratified). The International Convention on the Rights of Persons with Disabilities (CRPD, 2006), to which India is a party, completes the list along with its Optional Protocol; the Rights of Persons with Disabilities Act, 2016 was enacted to implement it.

Treaty bodies and the international supervisory machinery

Each of the core treaties has its own treaty body — a committee of independent experts elected by States parties. The common functions are: examination of periodic State reports, leading to concluding observations and recommendations; issue of general comments interpreting the substantive provisions of the treaty; consideration of individual communications under the relevant Optional Protocol where accepted; and inquiries into grave or systematic violations where the Optional Protocol so allows. The reports–dialogue–observations cycle is the central engine of the system, supplemented at the political level by the Universal Periodic Review of the Human Rights Council, in which every UN member State is reviewed every four-and-a-half years.

None of the treaty bodies is a court. Their views, observations and general comments are not binding judgments. They are, however, the authoritative interpretation of the treaty by the body the States have created and entrusted with that function, and they carry persuasive weight internationally and in domestic courts that take international law seriously. The Indian Supreme Court has cited them in this register. The treaty system therefore operates more like the supervisory mechanisms discussed in chapters on treaty formation, validity and termination than like a litigation forum, and the place of treaty bodies among recognised lawmaking organs is one of the questions touched in the chapter on the private–public divide in international law.

Indian municipal-law interface

India follows the dualist tradition. A treaty does not automatically become part of the law of the land on ratification: it binds India internationally, but does not confer rights on individuals enforceable in Indian courts unless Parliament enacts legislation to give it domestic effect. The constitutional architecture for this interface lies in three Articles. Article 51(c) directs the State to endeavour to foster respect for international law and treaty obligations. Article 253 confers on Parliament the exclusive power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country. Entry 14 of List I (Union List) covers entering into treaties. The detailed working of these provisions is the subject of the chapter on the Indian Constitution and international law.

Notwithstanding dualism, the Supreme Court has consistently used unincorporated human rights treaties as interpretive aids, particularly where there is a gap or ambiguity in domestic law. The leading authorities are: Vishaka v. State of Rajasthan (1997) 6 SCC 241, where CEDAW provided the content of Article 21 protection against workplace sexual harassment; Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759, applying the Vishaka principles; Vellore Citizens Welfare Forum v. Union of India (1996) 5 SCC 647, where the precautionary principle and polluter-pays principle drawn from the Rio Declaration were read into Articles 21, 47, 48A and 51A(g); People’s Union for Civil Liberties v. Union of India (1997) 1 SCC 301, citing the ICCPR on telephone tapping and privacy; Gramophone Company of India v. Birendra Bahadur Pandey (1984) 2 SCC 534 on the relationship between treaty and statute; and National Legal Services Authority v. Union of India (2014) 5 SCC 438, where international standards on gender identity were read into Articles 14, 19 and 21. The same cluster of cases is the doctrinal anchor for the chapter on implementation of international treaties in Indian courts.

The interpretive principle is that a treaty obligation cannot override a clearly inconsistent domestic statute, but where the statute is silent or ambiguous, the courts will lean towards a construction that conforms to India’s international obligations. This is sometimes termed the principle of harmonious construction with international law and is a sub-rule of the broader interface examined in the chapter on the customary international law and general principles.

Equality and non-discrimination — the cross-cutting principle

Non-discrimination is the connective tissue of the entire system. Article 2(1) of the ICCPR requires States parties to respect and ensure the Covenant rights to all individuals within their territory and subject to their jurisdiction 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. Article 26 ICCPR is broader: it requires equality before the law and the equal protection of the law without discrimination, in respect of all rights guaranteed by law (not only the Covenant rights). Article 2(2) of the ICESCR mirrors the formula. CERD, CEDAW, CRC and CRPD all elaborate the prohibition for the protected groups they cover.

The Human Rights Committee, in its General Comment No. 18, has defined discrimination as any distinction, exclusion, restriction or preference based on the listed grounds and having the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. Not every distinction is discrimination: a distinction based on reasonable and objective criteria, in pursuit of a legitimate aim, is permissible. The exhaustion-of-domestic-remedies rule applies to all complaints under the Optional Protocols, mirroring the requirement examined in the chapter on state jurisdiction and the customary rule of admissibility.

Reservations, declarations and the limits of obligation

States may make reservations to human rights treaties subject to the rules in the Vienna Convention on the Law of Treaties, 1969 — the reservation must not be incompatible with the object and purpose of the treaty (Article 19(c) VCLT). India’s reservations and declarations are limited and recurring: a declaration on Article 1 of the ICCPR and the ICESCR (right of peoples to self-determination, asserting that it applies only to peoples under foreign domination and not to integral parts of sovereign States); a reservation on Article 22 ICCPR (freedom of association, qualified by Articles 19(2) and (4) of the Constitution); declarations on Articles 5(a) and 16(1) of CEDAW reserving the position on personal-law family matters; and the Article 32 declaration on the CRC.

The Human Rights Committee has taken the position in General Comment No. 24 that reservations incompatible with the object and purpose of the Covenant are severable — the reserving State remains a party but the reservation is treated as nugatory. That position is contested by some States; it is, however, an important indicator of how the treaty body conceives of the special character of human rights treaties as multilateral instruments creating objective standards rather than reciprocal bilateral exchanges.

Regional human rights systems — a brief comparison

The universal system coexists with three robust regional systems: the European Convention on Human Rights, 1950 (with the European Court of Human Rights at Strasbourg); the American Convention on Human Rights, 1969 (with the Inter-American Commission and Court at San José); and the African Charter on Human and Peoples’ Rights, 1981 (with the African Commission and Court). Each operates with binding judgments and a more litigation-heavy character than the universal treaty bodies, and each has produced jurisprudence that has fed back into the universal system and into national constitutional courts. South Asia has no equivalent regional body — there is no SAARC Convention on Human Rights with a court — so for the Indian aspirant the universal system and the constitutional courts at home do almost all the work.

What the exam wants you to remember

From this chapter, fix the following minimum: the date and legal status of the UDHR; the entry-into-force dates of the ICCPR and the ICESCR (1976) and India’s accession (1979); the structural difference between the ICCPR (immediate obligation, Article 2) and the ICESCR (progressive realisation, Article 2(1)); the non-derogable core in Article 4 ICCPR; the names and composition of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights; the four supervisory functions common to the treaty bodies; the four guiding principles of the CRC; the holding in Vishaka v. State of Rajasthan on the use of CEDAW as a source of Article 21 content; and the dualist position of India together with Articles 51(c) and 253 of the Constitution. With these in place you can answer the standard multiple-choice and short-answer questions on the international protection of human rights — and you have a foothold for the longer essay questions that link back to the doctrinal chapters on the subjects of international law and the wider scheme of obligation in state recognition and succession.

Frequently asked questions

Is the Universal Declaration of Human Rights legally binding on India?

On its own terms the UDHR is a General Assembly resolution and was not adopted as a binding treaty. The 1968 Proclamation of Tehran asserted that it constituted an obligation for the international community, and the better view today is that significant portions of the Declaration — the prohibitions on torture, slavery, racial discrimination, arbitrary detention and denial of fair trial — have hardened into customary international law and are binding on India in that capacity. The Indian Supreme Court has used the UDHR consistently as an interpretive aid to Article 21 since the early 1980s.

Why does India follow ICCPR Article 2 immediately but ICESCR Article 2(1) only progressively?

The Covenants embody two different theories of obligation. ICCPR Article 2(1) binds each State party to respect and ensure the civil and political rights to all individuals within its territory immediately on entry into force. ICESCR Article 2(1) commits each State party to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the economic, social and cultural rights. The drafters accepted that economic and social rights cost money, while civil and political rights largely cost only restraint. Some core ICESCR obligations — non-discrimination, equal rights of men and women, and a minimum core of each right — are nevertheless immediate.

What did Vishaka v. State of Rajasthan actually do with CEDAW?

In Vishaka v. State of Rajasthan (1997) 6 SCC 241 the Supreme Court was asked to fashion a remedy against workplace sexual harassment in the absence of a domestic statute. It held that India had ratified CEDAW, that Articles 11 and 24 of the Convention required States to take measures to prevent harassment of women at the workplace, and that in the absence of inconsistent domestic law the Court could read CEDAW into the Article 21 right to dignity and the Article 14 and 15 equality guarantees. The result was the Vishaka guidelines, which occupied the field until Parliament enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Can an individual in India send a complaint to the Human Rights Committee under the ICCPR?

No. The right of individual petition to the Human Rights Committee arises only under the First Optional Protocol to the ICCPR, 1966. India ratified the Covenant in 1979 but has not ratified the First Optional Protocol. Indian residents therefore cannot file communications against India under the ICCPR. The same position applies to the Optional Protocol to the ICESCR (in force 2013) and to the Optional Protocols to CEDAW and the third Optional Protocol to the CRC, none of which India has ratified.

Which rights are non-derogable under ICCPR Article 4 even in a public emergency?

Article 4(2) lists the non-derogable rights from which no suspension is permitted even in a time of public emergency that threatens the life of the nation: the right to life (Article 6), the prohibition of torture and cruel, inhuman or degrading treatment (Article 7), the prohibition of slavery and servitude (Article 8(1) and (2)), the prohibition of imprisonment merely for inability to fulfil a contractual obligation (Article 11), the prohibition of retrospective criminal law (Article 15), the right to recognition before the law (Article 16), and freedom of thought, conscience and religion (Article 18). The non-derogable list reflects the customary jus cogens core of human rights law.

What are treaty bodies, and are their views binding on India?

Each of the nine core UN human rights treaties has a treaty body — a committee of independent experts elected by the States parties. Their functions are to examine State reports, issue general comments interpreting the treaty, consider individual communications under the relevant Optional Protocol where accepted, and conduct inquiries into grave or systematic violations where empowered. None of the treaty bodies is a court and their views are not binding judgments. They are the authoritative interpretation of the treaty by the body the States parties have created for that purpose and carry significant persuasive weight in domestic courts and in international practice.