HUMAN RIGHT CONVENTIONS, PART 3

ICCPR and ICESCR

ICESCR and ICCPR, together known as the “Bill of rights” was adopted by UN General Assembly on 16th Dec, 1966 were opened for signature at New York on 19 December 1966. The convents were entered into force on 3rd Jan, 1976 and 23rd March, 1976 respectively. India accessed the conventions on 10th Apr, 1979 with certain reservations and declarations.

Declaration under ICCPR

The Government has ratified the ICCPR on 10 April, 1979 with declarations to Art 1 (Right to Self- Determination), Art 9(5) (right to compensation victim of unlawful arrest or detention) and Art 13(rights of aliens in matters of expulsion).

India supports a “restricted interpretation” of self- determination. In reference to Art 1 India declares that the words `the right of self-determination’ apply peoples under foreign domination, but not to sovereign independent States or to a section of a people or nation because of the essence of national integrity. The declaration was objected by Germany, France and Kingdom of Netherland. But in my view the India has filed reservations, limiting the right of self-determination in order to preclude the possibility of its application within India. As from the Independence India is facing the problem of “Kashmir” and “North-Eastern States”. If there were no reservation like that there is a possibility of more “Khalistan” and “Kashmir”.

India made reservation to Article 9(5) (right to compensation victim of unlawful arrest or detention), stating that the Indian legal system does not recognise a right to compensation for victims of unlawful arrest or detention. But in many of its decisions, the Supreme Court of India crystallised the judicial right to compensation. In D.K. Basu case the Court went to the extent of saying that since compensation was being directed by the courts to be paid by the State held vicariously liable for the illegal acts of its officials the reservation to clause 9(5) of ICCPR by the Government of India had lost its relevance. Remarkably, the Supreme Court has found Article 9 (5) ICCPR to be enforceable in India even though India has not adopted any legislation to this effect but had even entered a specific reservation to Article 9 (5).

The declaration made regarding the Article 13(rights of aliens in matters of expulsion) concerns with refugee rights. India is not a party to Convention on the Status of Refugees and protocol relating the status of refugees, 1951. This, however, does not mean that this reservation is also to refuses or is reluctant in acknowledging the rights of refugees. Even though in India, the Foreigners Act of 1946 contains provisions for prohibiting, regulating, or restricting the entry of foreigners into India, as well as provisions for their expulsion from India. [12]

In Louis De Raedt Vs. Union of India & Ors [13] honorable Supreme Court held in context of refugee rights, “it necessarily follows that Article 21 encompasses the principle of non-refoulement, since the forcible expulsion or deportation of a refugee to a country, where his life or freedom is threatened on account of his race, religion, nationality, political opinion or affiliation, would be violative of the constitutional scheme, provided for in Article 21.” [14] Also in the case of National Human Rights Commission Vs. State of Arunachal Pradesh [15] , the Supreme Court has held that Art 21 is available to all “People”, be he a citizen or otherwise.

ICESCR

The Declarations made by India other than the Article 1, were regarding Article 4, Art. 7(c) , and Art. 8 and they are to be applied as to be in conformity with the similar provisions available under of Constitution of India. Article 4 and 8 of ICESCR deals with the freedom to form Trade unions, join trade unions, and collectively demand rights. The similar freedom is given under the constitution of India in Article 19 and specifically under Article 19(1)(c). Regarding the reservation under Article 7 (c) which deals with the “Equal opportunity”, the concept is also embodied in Article 14 of Indian constitution.

So there is no harm in reading the provisions of the Convents in pursuance with the provisions of Constitution of India, as both have almost same language and “purpose and object”. Also these reservations are not against the core of the ICESCR hence passing all the test of validity.

CERD

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) is an important of the general instruments requires “respect for and observance of human rights and fundamental freedoms for all, without distinction as to race”. [16] The jurisprudence behind the Convention was to put an immediate end to discrimination against blacks. [17] It was adopted by UN in New York, on 7 March 1966 and entry into force on 4 January 1969. India has signed it on 2 Mar 1967 and ratified on 3 Dec 1968 with reservation on Article 22, which allows India to be excluded from the jurisdiction of the ICJ in case arbitration between the parties has failed, I think is permissible because reservation does not contravene the object and purpose of the Convention. There were 26 procedural reservations [18] filed to the Racial Convention, but only Pakistan objected India. No other state objected to the procedural reservations made to this Convention. So it is clear that the objection is for apparently political motives of Pakistan.

India has made no declaration or reservation to Article 1 of CERD but, India has maintained the view, that caste-based discrimination does not fall within the purview of the definition of racial discrimination. [19] It was said that the “caste” is not same as “descent”. [20] 21But in reality it is being contended “that it was an Indian who proposed the inclusion of descent in the definition of racial discrimination in the U.N. Convention on the Elimination of All Forms of Racial Discrimination (CERD) when it was first being drafted in the mid-sixties.” [22]

CEDAW

The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) is the principal international document to address the right of women to be free from discrimination. The Convention prohibits discriminations those affects the equal participation of women in the political, social and economic lives of their countries. CEDAW was adopted by UN General Assembly on 18 December, 1979 and were entered into force on 3 September 1981, in accordance with article 27 of the present Covenant. India has signed the convention on 30th of July, 1981 and ratification was done on 9th July, 1993.

India has made 2 declarations and 1 reservation and declarations were objected by the Government of the Kingdom of the Netherlands as they were not compatible with the object and purpose of the Convention. India has made obligations under Articles 5(a) and 16(1) subject to “policy of non-interference”. Although these words are not defined or determined in the text of the declarations, and contents of “policy of non-interference” have not been outlined anywhere in the text of declaration. In such a scenario it is difficult to understand the objective and understanding of the policy. Also the word ‘community’ is undefined; it is not clear in the declaration that which type and nature of ‘community’ it is? Whether it is religious, political and social or of some other un-defined nature.

Article 5(a) of the convention and Article 16, stresses a woman’s right to equality within marriage and the removal of discriminatory practices and the basic core commitments or objects to CEDAW. The same is stated by the CEDAW Committee [23] :

“Removal or modification of reservations, particularly to Articles 2 and 16, would indicate a State party’s determination to remove all barriers to women’s full equality and its commitment to ensuring that women are able to participate fully in all aspects of public and private life without fear of discrimination or recrimination. States which remove reservations would be making a major contribution to achieving the objectives of both formal and de facto or substantive compliance with the Convention.” [24]

It is clear from the above reading that, the Article 5 and 16 are the core of the CEDAW so the ‘declarations’ are not compatible with the object and purpose of the CEDAW, especially cultural discrimination and therefore violate the ‘object and purpose’ [25] test. Also the declarations of the Indian government to Articles 5(a) and 16 of the CEDAW Convention adversely affect a woman’s right to marry and thereby such declarations affect customary norms in international law, thus impermissible.

Regarding the declarations to Article 16(2), the Government of India indicates its support for compulsory registration of marriages but India’s declaration lack a specific time limit. The Government of India has taken some affirmative steps in that direction and the draft Bill for ‘Compulsory Registration of Marriages Act, 2005’, being drafted. [26] Also the Supreme Court has made it compulsory for all marriages in the country, to be registered. In the landmark judgement, of Smt Seema Vs Ashwani Kumar [27] , apex Court has issued notice to the National commission, for Women (NCW) for placing its views on the registration of marriages and the proposed legislation prepared by the commission. The Hon’ble Court in its judgment dated 14th February 2006 observed that:

“as rightly contended by the national commission for women , in most cases non registration of marriages affects the women the most—- and directed the states and central government to initiate steps including framing of the rules for registration of marriages “

The reservation made regarding the Article 29(1) of the CEDAW, allows India to be excluded from the jurisdiction of the ICJ in case arbitration between the parties has failed, is permissible because reservation does not contravene the object and purpose of the Convention. The core commitment of the Convention is not violated by the reservation. Also CEDAW’s Art 29(2) itself permits such reservations to be made by States parties. As India have a written constitution and guarantees the right to equality and non-discrimination based on sex [28] , and can be enforced in domestic courts of law.

CRC

Convention on the Rights of the Child was adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, and it entered into force on 2nd September, 1990, in accordance with article 49. India accessed it on 11th Dec, 1989.

India has declared that the CRC laws can only be “progressively implemented”, owing to availability of resources in contradiction of the resolve to “eliminate the evil of child labour”

India on Article 32(2) [29] posed a declaration on “prescribing minimum age for employment” stating “that it is not practical immediately to prescribe minimum age for admission to each and every area of employment”. Also in regard to “economic, social and cultural rights” of child, it was said that they can only be “progressively implemented” as India is a developing county.

But now India has moved towards becoming an economic ‘super power’ and the country with the tenth highest GDP in the world.  Hosted commonwealth games and aiding other countries now for India to now take the plea that its “present socio economic conditions” do not allow it to review its reservation on Article 32 clearly reflects a lack of political will and commitment to the realization of child rights, to deny realization of rights of all children and condone the existence of one of the worst forms of exploitation of children, burdening them with adult economic responsibilities, is a clear reflection of abdication of state responsibility. [30]

The Convention on the Rights of the Child (CRC) has two optional protocols:-

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, adopted by UN General Assembly on 25 May 2000 and entered into force on 18 January 2002.

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, adopted on 25 May 2000 and entry into force on 12 February 2002.

India ratified the both optional protocols on 15th Nov, 2004. With a “compulsory and binding declaration”, this should be deposited under Article 3(2) of second optional protocol to CRC by every state party upon ratification or accession to the present protocol. Article 3(2) requires every sate to submit a binding declaration upon ratification or accession, “that sets forth the minimum age at which it will permit voluntary recruitment into its national armed forces and a description of the safeguards it has adopted to ensure that such recruitment is not forced or coerced”. India on this declare that the minimum age for recruitment into Armed Forces of India is 16 years whereas he will be sent to the operational area only after the attainment of age of 18 years. It was also declared that all the recruitment are “purely voluntary and conducted through open rally system/open competitive examinations” and without coercion.

Conclusion

The concept of reservation to the provisions of treaty was provided under Art. 19-23 of the Vienna Convention Reservations against the provisions of a treaty basically signify a states intention communicated in writing, that the particular provision is not binding upon it. However, no reservation can be made under Article 19 which is compatible with the purpose of the treaty. [31] So much for the concept of reservation under the vinnea convention of the law of treties, 1969. [32]

But recent state practice regarding the reservation in human rights treties is a matter of concern. This is so because it’s questions the very notion of universality; which is implicit the idea of human rights.

The reservations relating to the human rights treaties are a potential threat to universality of international human rights order. The reservations against provisions of human rights treaties which are not customary norms of international law can prevent them from becoming so in due course of time.

According to human rights committee, reservations that offend customary norms (jus cogens) would be incompatible with the object and purpose of a treaty. [33]

The commetee concluded: “While there is no automatic cor-relation between reservations to non-derogable provisions, and reservations which offend against the object and purpose of the convent, a state has a heavy onus to justify such a reservation” [34]

Q.M. Maarji-Uddin: Reservation to human right ” Treaties- A threat to the “Universality” of Human Rights

Withdrawal of reservation – A reservation made by a country concerned may be withdrawn subsequently, due to a change in circumstances including the country’s positive effort in overcoming the difficulties faced in implementing the provisions of the treaty. A provision and procedure for withdrawal of reservation is prescribed in the treaties. For example, CERD prescribes for withdrawal of reservations “at any time by notification to this effect addressed to the Secretary-General.”5 Withdrawal of a reservation is also to be given in writing. An example is a withdrawal of reservations to CEDAW by Morocco in December 2008.6