YLM-201: LAW AND JUSTICE IN

GLOBAL WORLD

LL.M. II Term (2022-23)

Unit V: Human Rights, Human Needs and

Sustainable Development

Dr. Amrendra Kumar

Assistant Professor
Law Centre- II, Faculty of Law
University of Delhi, Delhi.
Introduction
 The concept of human rights derives from human dignity and the inherent worth of a
human being. All human being are born free and equal in dignity and rights. Human
rights are the rights that everyone has equally by virtue of their humanity. The human rights
may be defined as any claims that ought to have legal and political protection to make
sure that basic human needs will be met. Human rights have emerged as important
political and legal concept of our age.
 The concept of human rights includes civil and political rights or public liberties, economic,
social and cultural needs particularly with regard to development, the environment and self-
determination. It is the state's responsibility to protect and promote human rights. It is
also the duty of the state to create conditions for peaceful existence which enable
human rights to be enjoyed by every individual in that state.
 Human rights can be defined as ‘those rights without which human beings cannot live
with dignity, freedom and justice in any nation or state regardless of colour, place of
birth, ethnicity, race, religion or sex or any other such considerations.’ These rights are
inherent in human nature and therefore guaranteed and protected by the state without
distinction, exclusion and limitation.
 Since 1948, the United Nations has adopted more than 100 human rights documents
covering the entire gamut of human relationships. These, among others, deal with the
rights of women, children, refugees, migrant workers, stateless persons, minorities,
genocide, slavery, torture, indigenous peoples and prohibition of racial or religious
discrimination. International efforts were undertaken in conferences through international
organizations in development and implementation of human rights norms and standards in
humanitarian law, environment and sustainable development law.
Concept of ‘Human Rights’
 The modem concept of human rights is comprehensive in its nature and content. It
includes three types of rights: civil and political, economic, social and cultural and the
emerging collective or group rights. Moreover, it must be noted that no catalogue
elaborating specific human rights will ever be exhaustive or final. Its content goes
hand in hand with the state of moral consciousness, or development of civilization
at any given time in history.
 Maurice Cranston maintains that a human right is a type of moral right. "We justify
the moral rights of an individual," he writes, "by arguing that those rights have
been earned or that they have been acquired by gift, bequest, sale or some other
contractual undertaking." Human rights, "clearly belong to the category of moral
rights," cannot be justified in this fashion, since they are not dependent upon a
particular act of creation or contract.
 Gewirth states the same point as "Human rights are rights or entitlements that belong to
every person; thus, they are universal moral rights." He maintains that "[at bottom,
the idea of human rights is a moral one. It becomes a legal and political idea only
because of its supreme moral importance. Human rights are "moral requirements"
in that they are: (1) necessary needs; (2) justified entitlements; and (3) claims or
demands addressed to other persons.
 However, Dworkin explicitly frames rights as in terms of their political context by
saying that "Individual rights are political trumps held by individuals. Individuals
have rights when, for some reason, a collective goal is not a sufficient justification
for denying them what they wish..” Dworkin argues for a theory of law by saying
that political rights pre-exist legal rights, since they are to be invoked against the
state. Yet these political rights are at the same time moral rights and they are
justified in terms of the moral personality of the individual.
Nature and Scope of ‘Human Rights’

 Section 2(d) of the Protection of Human Rights Act (PHRA), 1993, human
rights are defined as under: “Human rights means the rights relating to life,
liberty, equality and dignity of the individual guaranteed by the Constitution or
embodied in the International covenants and enforcement by courts in India.”
 The traditional view limits them to civil and political rights, including the right to
life, liberty and security; the right not to be discriminated against on the basis
of race, colour, sex, language, religion, social class or political opinion; the
right to vote, freedom of speech and freedom of press; the right to be free from
arbitrary invasion of privacy, family or home; and legal rights such as the right
to due process of law and presumption of innocence until proven guilty.
 The modern view has added social, economic and cultural rights, including the
right to an adequate standard of living, the right to education, the right to
work and to equal pay for equal work, and the right of minorities to enjoy
their own culture, religion and language with particular importance to the
protection of the rights of disadvantaged and minority groups.
 Human rights are important because they recognize that each person is special
with his / her own individual talents and abilities and that no one is inferior or
superior to another. At the heart of the idea of human rights is the notion that all
people are born free and equal. Everyone is entitled to live with dignity and no
one, including the State, community, family and society, has any right to
discriminate or treat anyone unfairly or unjustly. The international system of
human rights and the Indian Constitution insist that it is the duty of the State
to promote respect for all the human rights of all people equally.
Contd..

 The specific nature of the human rights have been recognized as such:
1. Human rights are universal moral and legal rights; they belong to
everybody because they are human. Human rights are not earned,
bought or inherited. They are inherent in human dignity.
2. Human rights are available to all persons in the State irrespective of race,
colour, sex, language, religion, political or other opinion, national or
social origin, property or other status. They are universally applicable
to all persons.
3. Human rights are comprehensive in its nature and content. The content of
human rights goes hand in hand with the state of moral consciousness,
or civilization development at any given time in history.
4. Human rights and freedoms are indivisible and interdependent. There is
no hierarchy or any order of priority. Though we may classify rights in
different categories, they are all complementary to each other.
5. Human rights are not absolute or unlimited. Some of them can be
suspended during war or public emergency. Justifiable and reasonable
limitations can be imposed on their exercise, which are necessary to
protect national security, public order, public health or morals or the
rights and freedoms of others.
Origin and Development
 We may find the origin of human rights in ancient Greek and Roman political systems
in Europe, Confucian system in China, the Islamic political system in the Muslim
world and the "Panchayat" system in India. But the concept of rights in those
systems was not fully developed and understood as we know it today.
 Many important events and revolutions contributed towards the development of
human rights. The earliest charters of human rights are to be found among the three
British constitutional documents, namely, the Magna Carta (1215), the Petition of
Rights (1628) and the Bill of Rights (1689) adopted after the Glorious Revolution
of 1688. In Eighteenth century, this theme flowered into practical significance
with such historic documents as the Virginia Declaration of Rights, 1776, the
American Declaration of Independence, 1776, the French Declaration of the
Rights of Man and Citizen, 1789.
 The Charter of the United Nations (1945) perhaps, is the most important land mark
in the development of modem principles of human rights. However, UN General
Assembly adopted the Universal Declaration of Human Rights (1948) on 10
December 1948 which includes Civil and Political and Economic, Social and
Cultural right. A number of treaties known as International Covenants or
conventions have been further adopted. Seven of these covenants are known as core
International Human Rights Treaties.
 Those important HR treaties are: International Convention on the Elimination of All
Forms of Racial Discrimination (1965); International Covenant on Civil and
Political Rights (1966); International Covenant on Economic, Social and Cultural
Rights (1966); Convention on the Elimination of all Forms of Discrimination
against Women (1979) ; Convention against Torture and other Cruel; Inhuman or
Degrading Treatment or Punishment (1984); Convention on the Rights of the Child
(1989); International Convention on the Protection of the Rights of All Migrant
Workers and Members of their Families (1990).
Concept of ‘Human Needs’: Nature & Scope

 Human Needs are the basic and absolute needs that every human beings needs in
their life and even their other needs cannot be imagined without fulfillment of
these needs. Fulfillment of basic needs is essential for the life and livelihoods
which become motivating force behind human behavior in society. Every
individual has basic human needs – physical, emotional, social and
intellectual- in the form of food, water, cloth, shelter, health and sanitation
etc.
 The Characteristics of such basic human needs are: 1) these basic needs are
approximately same for all. 2) the importance of each need is different for
each person. 3) these basic needs are interconnected and interactive. These
basic needs are now part of the modern human rights regime without
restrictions, limitations and exclusions even during emergency and
disasters.
 The basic human needs have been supported with certain theories also such as:
‘Abraham Maslow’s Hierarchy Theory of Basic needs for Human Being’,
‘John Burton’s Human Needs Theory’ and ‘Simon Horton’s Theory of
Universal Human Needs.’ These theories provide legal justifications and
ramifications to include it as basic human rights by the States in their
domestic jurisdictions.
Contd..
 First, Abraham Maslow proposed Maslow’s hierarchy of needs in his paper “A
Theory of Human Motivation” (1943). Maslow developed a theory that suggests
satisfying five basic needs. These needs are arranged in a hierarchy. The
Hierarchy of Needs is as follows: 1. Physiological Needs (basic issues of
survival i.e. eat/drink/sleep well); 2. Security Needs (stable physical and
emotional issues such as work and job security); 3. “Belongingness” Needs
(social acceptance issues as friendship or cooperation); 4. Esteem Needs
(positive self-image, respect and recognition issues) 5. Self-Actualization
Needs (achievement issues such personal growth and development).
 Second, John Burton in his book ‘Conflict; Human Need Theory’ (1990) also
identifies a set of needs, which he considers to be universal in their
occurrence, but with no hierarchical significance. His list of needs includes
distributive justice, safety and security, belongingness, self-esteem, personal
fulfillment, identity, cultural security, and freedom.
 Third, Simon Herton in his work proposes the ‘Theory of Universal Human
Needs’ (2005) based on just two needs: survival and betterment. Under survival
needs, he identifies physical and mental well-being, respect from others, and
self-esteem (all required for happiness) and a safe and healthy environment,
logical reproductive practices, appreciation of life and doing good things (all
required for contentment).
Concept of Humanitarian Intervention and Responsibility to Protect
 Humanitarian intervention is a means to prevent or stop a gross violation of
human rights in a state, where such state is either incapable or unwilling to protect
its own people, or is actively persecuting them. The basis of such intervention is
that it is no state’s prerogative to allow the wanton disregard and violation of
human rights, and therefore, if such wanton disregard and violations take
place, another state, or other states may intervene to put an end to them.
 Human rights have come to compete with state sovereignty. This has created
tension between human rights and states’ rights. Tensions between states’ rights
and human rights have become particularly acute since the 1990s through the
growth of so-called ‘humanitarian intervention’. Major states have assumed the
right to intervene militarily in the affairs of other states to protect the citizens
from abuse and possibly death, often at the hands of their own government.
Then the question arises as how, and to what extent, is such intervention
linked to human rights? or does it genuinely work in that State ?
 Early recognition of the doctrine of humanitarian intervention as acceptable
in international relations is widely attributed to the works of the 17th century
Dutch author Hugo Grotius. Francisco de Vitoria (1492–1546) and Hugo
Grotius (1583-1645), each acknowledged a right of intervention to prevent the
maltreatment by a state of its own subjects. Specific invocation of the doctrine of
humanitarian intervention by intervening states arose mostly in the latter half
of the 19th Century. The modern idea of humanitarian intervention was a
creation of the post-Cold War period, and it was closely linked to optimistic
expectations of the establishment of a ‘new world order’.
Contd..
 The legal right of individual and collective humanitarian intervention rests on two
claims: first, the UN Charter (1945) commits states to protecting fundamental
human rights, and second, there is a right of humanitarian intervention in
customary international Law. The Charter’s preamble and Articles 1(3), 55, and 56
all highlight the importance of human rights.
 Article 1 (3) states one of the purpose of United Nations is to ‘achieve international
cooperation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights..’
and UN General Assembly has been assigned to do the studies in this regard under
Article 13 (1). Further, Article 55 state that UN shall promote..(c) universal respect
for, and observance of, human rights..; for which ESCO has been assigned to do the
studies under Article 62(2).
 The Responsibility to Protect, the 2001 report of the International Commission on
Intervention and State Sovereignty (ICISS), attempted to resolve the tension between
the competing claims of sovereignty and human rights by building a new consensus
around the principles that should govern the protection of endangered peoples. There
has been suggested a hierarchy of where responsibility lies, starting with the host
state, then the UNSC, the General Assembly, regional organizations, coalitions of
the willing, and finally individual states.
 The principle of responsibility to protect was adopted by the UN General Assembly at
the 2005 World Summit. The Commission argued that states have the primary
responsibility to protect their citizens. When they are unable or unwilling to do so,
or when they deliberately terrorize their citizens, the principle of non- intervention
yields to the international responsibility to protect. Its advocates argue that it will
play an important role in building consensus about humanitarian action while
making it harder for states to abuse humanitarian justifications.
Contd..
 In the Report on Implementing the Responsibility to protect (2009), there are three
principles and pillars suggested as:
Pillar I: Individual States carry the primary responsibility to protect its
populations from genocide, war crimes, ethnic cleansing and crimes
against humanity in accordance with their national and international
obligations.
Pillar II: The international community has a parallel responsibility to
encourage and assist States to fulfill their responsibility.
Pillar III: If as State is manifestly failing to protect its population, the
international community must be prepared to take collective action,
using appropriate diplomatic, political, humanitarian and- if necessary-
military means, to protect populations from these crimes, in accordance
with the charter of the UN.
 India has somewhat different position to the international norm and practice
prevalent today. During the UN reform meeting in year 2005, India put forward
the thought that it is essential to exercise necessary caution and responsibility
and categorically stated that ‘it is against any kind of ‘military humanism’ or
ideological basis that would give legitimacy to right of humanitarian intervention.
In year 2009, India issued a statement to the UN, that the responsibility to
protect its population is one of the foremost responsibilities of every state.
 India expressed that international community should resort to diplomatic,
humanitarian and other peaceful means, to help protect populations in the
specific situations of genocide, ethnic cleansing, war crimes and crimes against
humanity. India further affirmed that “Willingness to take Chapter VII measures
under the UN Charter can only be on a case by-case basis”.
Human Population, Poverty and Sustainable Development
 It is well known that pervasive poverty, environmental degradation and hazards,
use of natural resources, and economic and social development are closely linked to
population growth and distribution. It is also recognized that unsustainable
patterns of consumption and production are depleting natural resources and
causing environmental degradation, while reinforcing social inequity and
poverty. Hence, it is imperative in the context of sustainable development that
the populations dimension is explicitly recognized in all development strategies
directed towards economic growth, social inclusion, environmental protection and
maintenance of human rights.
 Even, United Nations mandates that the concept of sustainable development
should be implemented at local, national and international levels in areas that
are of critical importance for the humanity and the planet. The challenge in
implementation and application of sustainable development has been recognized
with growing population, persistent poverty and ecological degradation across the
countries for maintenance of human rights specially developing countries.
 The socially inclusive and environmentally sustainable development is closely
related to population transition or the change in the population growth. At the
same time, the task of reducing poverty and promoting human well-being and
ensuring sustainability of the environment is also inseparable from the change
in the population stock. The change in the population stock affects all efforts
directed towards meeting the needs of the people, including universal access to
health, education for all, affordable housing, sanitation, water, food, etc.
Contd..
 At the same time, the change in the population stock puts increasing pressure
on the environment in terms of the increased demand of natural resources and
in terms of the capacity of the environment to absorb wastes generated as a
result of an increase in the natural resources use. The increased demand for
natural resources to meet the needs of the increasing population and the resulting
increase in the wastes generated contribute to climate change and challenge the
capacity of the environment in sustaining life on the planet.
 According to the latest population projections prepared by the United Nations
in year 2017, it is most likely that the world population will increase from
7.383 billion in 2015 to 8.551 billion in 2030 and to 11.184 billion by the turn
of the present century. This means that around 1.168 million people will be
added to the world population during the 15 years between 2015 and 2030,
while the net addition to the world population during 2015–2100 will be
around 3.8 billion. This massive increase in the world population in the coming
years will have serious implications for sustainable development processes.
 At the same time, sustainable development may influence population transition
significantly. This means that achieving sustainable development goals is
expected to result in curtailing the future growth of the world population by
2.0–2.5 billion which, in turn, will contribute significantly to improving
personal, physical, social, economic and environmental security. The health-
and education-related targets of the 2030 Sustainable Development Agenda
will have direct and indirect consequences on future mortality and fertility trends
which will have implications to the future population growth.
Contd..
 Protection of Human Rights and the Environment has been one of the three dimensions
of sustainable development proposed in the post-2015 development agenda in year 2015
in the text ‘Transforming Our World: The 2030 Agenda for Sustainable
Development’ as the plan of action for people, planet and prosperity. The agenda is
summarized in 17 sustainable development goals (SDGs) and 169 targets to be
achieved by the year 2030.
 In India, population transition and sustainable development matters globally because of
the sheer size of India’s population stock. India is estimated to have accounted for
close to 18% of the world population in 2017. This proportion is very likely to
remain unchanged during the period 2015–2030.
 On the other hand, the carbon dioxide emission in India is estimated to have increased
by more than four times from 517 million tonnes in 1990 to 2166 million tonnes in
2015. During the same period, total primary energy use in the country increased
from 307 million tonnes of oil equivalent to 882 million tonnes of oil equivalent in
2015.
 According to the World Bank, India is the home of the largest number of extremely
poor people in the world— people living on less than $1.90 per day. In terms of the
human development index, India stands a poor 130 among 189 countries in 2018.
 Although India has made remarkable progress in terms of poverty reduction, yet
the challenge of reducing the number of poor people in the country remains
magnanimous because of the sheer size of India’s population stock. It is now
obvious that this increase in the size of the population and poverty in the country will
have important implications to economic and human development processes of the
country and will have substantial environmental impact.
Human Rights, Environment and Global Commons

 It has been recognized since 1970's onwards that basic human rights and the right to life
itself are dependent upon good and healthy environment. Not only is the rights of the
present generation, but also that of the future generations to live and lead a
healthy life embedded in the right to a healthy environment.
 The first international conference which recognized that environment was central to the
well being of human beings and to the enjoyment of their basic human rights and right
to life itself was the Stockholm conference, 1972. The conference expressed concerns
about threats to the human rights and environment from growing population, fast
depletion of non-renewable resources and pollution.
 Further, UN Conference on Environment and Development took place in Rio-de-
Jenero (Brazil) in 1992 to establish and implement the concept of sustainable
development across the nations. The outcomes of this conference in this regard
included: Convention on Biological Diversity, Framework Convention on Climate
Change, Principles of Forest Management, Rio Declaration and Agenda 21.
 The Johannesburg Conference, organized in 2002, to review the achievements and
failures of the Rio Declaration. The issues discussed in the conference included
water, sanitation, energy, health, agriculture and bio-diversity (WEHAB).
 Further, Rio-20 UN Conference on Sustainable Development took place again in Rio-
de-Jenero (Brazil) in year 2012 with outcome document ‘The Future We Want’
highlighting the need for sustainable development strategies and goals. Seventeen
sustainable development goals were adopted to achieve them till the year 2030 by
the member nations across the world.
Contd..
 The last 25 years have seen an enormous increase in the breadth and depth of
environmental human rights law. This development has occurred along three main
paths: (1) recognition of an autonomous right to a healthy environment at the
regional and national levels; (2) the inclusion of procedural “access rights” in
environmental treaties; and (3) the application by human rights bodies of other
human rights, including rights to life and health, to environmental issues.
 At the national level, at least 100 countries provide direct constitutional protection to
some form of a right to a healthy environment, and at least 12 other countries,
including India have asserted that the right to a healthy environment is inherent in
the constitutional right to life.
 In 1981, the African Charter on Human and Peoples’ Rights became the first human
rights treaty to include an environmental right, providing in Article 24 that all
peoples have the right to “a general satisfactory environment favourable to their
development.” Seven years later, the Additional Protocol to the American Convention
on Human Rights was the first treaty to state the “right to live in a healthy
environment” as an individual right in Article 11.
 Two later instruments, the 2004 Arab Charter on Human Rights and the 2012
Human Rights Declaration of the Association of South East Asian Nations
(ASEAN) countries include the right to a “healthy” or “safe, clean, and
sustainable” environment as an element of the right to an adequate standard of
living in Article 38 and Principle 28(f) respectively. In year 2021, the Human
Rights Committee adopted a Resolution on the human right to a clean, healthy and
sustainable environment which recognizes: the right to a clean, healthy and
sustainable environment as a human right that is important for the enjoyment of
human rights.
Contd..

 The Framework Principles on Human Rights and the Environment presented to

the UN Human Rights Council in year 2018 by the Special Rapporteur on
human rights and the environment, “John Knox”, set out obligations of states
under international human rights law because they relate to the enjoyment of
a safe, clean, healthy and sustainable environment.
 There are sixteen Framework Principles based primarily on international
instruments and decisions by international institutions. His first two
Framework Principles provides that “States should ensure a safe, clean, healthy
and sustainable environment in order to respect, protect and fulfill human
rights, and States should respect, protect and fulfill human rights in order to
ensure a safe, clean, healthy and sustainable environment.”
 The global commons are of crucial importance and have a central role in the
effects resulting from anthropogenic changes to the climate and impairing
human rights. The four areas commonly referred to in international law as the
global commons are the Atmosphere, Antarctica, the High Seas and Outer Space.
 They cover wide geographical areas and do not fall under the jurisdiction of
any state. They are instead placed under the jurisdiction of international law.
All states are affected by the status of these domains, both by activities that impact
them and the benefits from their well-being. They are often described as belonging
to the ‘common heritage of mankind’ including future generations and their
geographical domains reach beyond the scope of any sovereign state.
 Contd..
 The global commons each have specific regimes and institutional structures. The
environmental protection of the commons is provided under the 1992 United
Nations Framework Convention on Climate Change (UNFCCC). At present, the
atmosphere is not subject to a comprehensive legal regime, but a “patchwork” of
international instruments regulating different, and sometimes conflicting, economic
uses, geographical sectors, vertical zones and categories of risk to the environment,
security and health.
 Regimes addressing the legality of the oceans are United Nations Convention on the Law
of the Sea (UNCLOS); Convention for the Protection of the Marine Environment of
the North-East Atlantic (OSPAR) and International Maritime Organization (IMO)
related legal instruments. Antarctica, with its legal protection, the Antarctic Treaty
System (ATS) deriving from the 1959 Antarctic Treaty, is considered one of the most
comprehensive and successful international legal regimes to this day. In 1998, the legal
regime was supplemented with the Protocol on Environmental Protection of the
Antarctic Treaty.
 The 1967 Outer Space Treaty bans the stationing of weapons of mass destruction
(WMD) in outer space, prohibits military activities on celestial bodies, and details
legally binding rules governing the peaceful exploration and use of space. There are four
other treaties/agreements dealing with matters/concerns of outer space such as
Rescue Agreement, 1968; Space Liability Convention, 1972; Registration
Agreement, 1976 and Moon Agreement, 1979.
 There have been several proposals formulated that could strengthen the legal protection
of the Global Commons through International Law keeping in mind the concept of
sustainable Development. Like considering the harm to Global Commons as Crime of
Ecocide, according the Rights to Mother Earth, and constituting the International Court
for Global Environment.
******