ULUSLARARASI KAMU HUKUKU I

Human rights differ from other rights in two respects. First, human rights are characterized by being: Inherent in all human beings by virtue of their being humans; Inalienable; Equally applicable to all. Second, the main duties deriving from human
rights fall on states and their authorities or agents, not on individuals. As a corollary of this, human rights must be protected by law (‘the rule of law’).

The natural law theory led to the natural rights theory, which is most closely associated with the modern concept of human rights. The chief exponent of this theory was John Locke. Natural rights theory emphasizes the moral worth of the individual.

Another approach to human rights is legal positivism. Under the positivist theory, the
source of human rights is to be found only in the enactments of law with sanctions attached to it.

Marx regarded the natural law approach to human rights as idealistic and ahistorical. He saw nothing natural or inalienable about human rights. Concepts such as law, justice, morality, democracy, and freedom are considered historical categories whose contents are determined by the material conditions of and the social circumstances
of people. As the conditions of life change, so the content of notions and ideas may change

The concept of human rights dates back to antiquity. One can find reference to rights in many national documents. The first reference of personal liberties is found in the Magna Carta of 1215 in England. Other notable references prior to the 19th century are the 1776 Virginia Declaration of Rights and the 1789 French Declaration of the Rights of Man and of the Citizen. The institutionalization of human rights in national documents penetrated into the international system at the end of the 18th century.

Scholars started classifying human rights under “three generations.” The first generation consists of civil and political rights. The second generation consists of economic, social and cultural rights. The emphasis in both has been on the individual’s rights. t. However, in the 1970s, a “third generation” rights emerged. In contrast to
the individual’s rights (i.e., the first two generations rights), these are collective or group rights such as the right to development, right to healthy human environment, right to peace, and right to self-determination.

The Human Rights Council is a subsidiary organ of the General Assembly. Unlike the CHR, which was a subsidiary body of the ECOSOC and reporting to the ECOSOC, the Human Rights Council reports to the General Assembly. “The Council is made of 47 Member States, which are elected by the members of the General Assembly of the United Nations through direct and secret ballot. Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Council’s Membership is based on equitable geographical distribution.

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), adopted by the Council of Europe on 4 November 1950, by far is the most established regional human rights treaty whose jurisprudence is well developed. The Convention has 14 protocols in force, adopted gradually after its coming into force on 3 September 1953. The Convention imposes binding commitments on the states parties to enforce and secure to “everyone within their jurisdiction,” the rights and freedoms enlisted in the Convention.

The Council of Europe is composed of four principal bodies: the Committee of Ministers, the Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe, and the Secretariat. The Committee of Ministers is composed of the foreign ministers of all Council members. The Parliamentary Assembly is a deliberative body composed of members of the national parliaments of each member state. The Congress of Local and
Regional Authorities of Europe is a consultative body that represents local and regional governments within the Council. The Secretariat serves the main organizations within the Council.

The heads of the Organization of African Unity  adopted the African Charter on Human Rights (also known as the Banjul Charter) on 17 June 1981. The Charter came into effect on 21 October 1986. As of 2016, all the 54 member states of the African Union have ratified the Charter. This is the first human rights document that has emphasized the peoples’ rights (Arts. 19- 24), i.e., the “third generation” rights, viz., right to self-determination, right to development, the right to freely dispose of their wealth and natural resources etc.

The natural law theory led to the natural rights theory, which is most closely associated with the modern concept of human rights. The chief exponent of this theory was John Locke. Natural rights theory emphasizes the moral worth of the individual. Accordingly, the individual possesses basic human rights and everyone is inherently entitled to these rights as a human being, independent of whether or not these rights are recognized by the ruler. Therefore, the correct option is A.

Another approach to human rights is legal positivism. Under the positivist theory, the source of human rights is to be found only in the enactments of law with sanctions attached to it. Jeremy Bentham and John Austin were its chief proponents. They considered the natural law to be vague and meaningless. They believed in freedom and equality; however, they did not base these values on natural law. A sovereign can define the scope of liberties of its subjects. It is the principle of utility that helps the state in deciding the limits of civil liberty. Under this theory, rules of international law are merely rules of positive morality. According to positivists, the individual has no status in international law. Therefore, the correct option is C.

Marx regarded the natural law approach to human rights as idealistic and ahistorical. He saw nothing natural or inalienable about human rights. Concepts such as law, justice, morality, democracy, and freedom are considered historical categories whose contents are determined by the material conditions of and the social circumstances of a people. As the conditions of life change, so the content of notions and ideas may change”. While the focal point of Marxism is to recognize the contextuality of human rights in terms of the conditions of a society, conceiving human rights chiefly in a materialistic frame has been one of its significant weaknesses. Therefore, the correct option is D.

The Universal Declaration of Human Rights, which is the embodiment of the rights of both these generations, attaches equal importance to political and economic rights and consider them as interdependent. However, in the 1970s, a “third generation” rights emerged with the predominant support of the developing countries. In contrast to the individual’s rights (i.e., the first two generations rights), these are collective or  group rights such as the right to development, right to healthy human environment, right to peace, and right to self-determination. Therefore, the correct option is B.

The UN Charter, which has played the catalyst role in the human rights movement, does not give a definition of fundamental freedoms and human rights, nor does it provide any machinery to secure their observance. This task has been fulfilled by the subsequent United Nations instruments. The First critical instrument was the Universal Declaration of Human Rights, adopted by the General Assembly on December 10, 1948. It defined expressly certain human rights and fundamental freedoms that need to be protected. 

The Declaration is not a legally enforceable instrument and some of the rights mentioned therein, viz., the right of asylum (Art. 14), could not be said to represent the legal rule. Other rights are merely general principles of law or represent elementary considerations of humanity. The rights enshrined in the Declaration in its 30 articles are broadly divided into civil and political rights, and economic, social and cultural rights.

Therefore, the correct option is D.

The Human Rights Council is a subsidiary organ of the General Assembly.  Unlike the CHR, which was a subsidiary body of the ECOSOC and reporting to the ECOSOC, the Human Rights Council reports to the General Assembly. The Council is made of 47 Member States, which are elected by the members of the General Assembly of the United Nations through direct and secret ballot. Members of the Council serve for a period of three years and are not eligible for immediate re-election after serving two consecutive terms. The Council’s Membership is based on equitable geographical distribution. Seats are distributed as follows:

• African States: 13 seats
• Asia-Pacific States: 13 seats
• Latin American and Caribbean States: 8 seats
• Western European and other States: 7 seats
• Eastern European States: 6 seats

Therefore, the correct option is B.

Derogation: Lessening or restriction of the authority, strength, or power of a law, right, or obligation. Specifically in the European Convention on Human Rights, a provision that enables a signatory state to avoid the obligations of some but not all of the substantive provisions of the rest of the Convention. Therefore, the correct option is B.

The European Court of Human Rights was set up at Strasbourg on 21 January 1959. The number of judges of the Court is equal to that of the members of the Council of Europe. The Court’s formation should be reflective of the contracting parties’ different legal systems. To consider a case, the Court sits in single-judge formation, in committees (consisting of three judges), chambers of seven judges, and Grand Chamber of seventeen judges. Therefore, the correct option is A.

Individuals or groups of individuals or NGOs could also petition before the Commission directly, provided the state against which the complaint was made, had accepted the jurisdiction of the Commission in this regard. This right of the petitioners was subject to the rule of exhaustion of local remedies available in their own country. Therefore, the correct option is E.

In limine means “at the threshold,” referring to a motion made before a trial begins. Therefore, the correct option is B.