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Published online by Cambridge University Press: 21 May 2009
One of the controversial questions in the area of human rights has been that concerning the status of economic, social and cultural rights; and while the entry into force of the two Covenants in 1976 may be considered as conclusively establishing the status of these rights under international law some dissent on the matter continues to be expressed. Much of the debate on this issue has centered on the question whether economic, social and cultural rights are “true” rights or “legal” rights of individuals; and the fact that liberal Western philosophy and socialist philosophy give different answers to this question has inevitably invested the issue with ideological and political rivalry and prestige. In part, the heavy emphasis upon producing legal documents, such as resolutions, declarations and conventions has obviously contributed to the above preoccupation. That emphasis is understandable up to a point because the rule of law is clearly the most reliable way of protecting, or redressing the violation of, human rights, and the international instruments seek to strengthen the rule of law within states. Nonetheless, this preoccupation has perhaps contributed to the restriction of attention to legal factors, to the consequent neglect of the social context within which the rule of law inevitably has to be established. The unhappy result has been that, excepting the European Convention, human rights treaties have remained largely unimplemented, even by states for whom they have entered into force, and that they are likely to remain so for the foreseeable future.
1. See, for instance, Cranston, Maurice, “Human Rights, Real and Supposed,” in Political Theory and the Rights of Man (Raphael, D.D., ed., 1967) at pp. 43–53Google Scholar; and Vierdag, E.W., “The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights,” 9 NYIL, (1978), pp. 69–105CrossRefGoogle Scholar.
2. It is, however, clear that human rights treaties lack the sort of reciprocity that is generally spoken of as a reason for the observance of international law by states. See, Watson, J.S., “The Limited Utility of International Law in the Protection of Human Rights,” 74 Proceedings, Am. Soc. Int.L., (1980) pp. 1–6Google Scholar; and, Golsong, H., “Implementation of International Protection of Human Rights,” 110 Hague Receuil 7 (1963–III) at pp. 23–24 and 27Google Scholar. It is also becoming clear from the experience of the Covenant on Civil and Political Rights that it has not ushered in the rule of law domestically in states parties to it; Jhabvala, Farrokh, “The Practice of the Covenant's Human Rights Committee, 1976–82: Review of State Party Reports,” 6 Human Rights Q. (1984), 81 at pp. 102–103CrossRefGoogle Scholar.
3. The implementation of the Covenants can be understood in two senses: first, in the superficial sense that states submit reports required under the Covenants; and, second, in the real sense that states parties provide to their respective populations the full enjoyment of the rights included in the Covenants. It is in the latter sense that the entry into force of the Covenants has not resulted in implementation. Nevertheless, even the reports submitted by states parties have been far from satisfactory, raising questions whether the Covenant is even being fulfilled in the superficial sense. See, Jhabvala, , supra n. 2, at p. 103Google Scholar.
4. United Nations, Human Rights: A Compilation of International Instruments, at p. 4, U.N. Doc. ST/HR/1/Rev.l(1978)Google Scholar; cited hereinafter as Human Rights Compilation.
5. Article 2(1), id., at p. 8.
6. Article 2(2), id.
7. 13 UN ESCOR, Plenary Meetings, at p. 401 para. 37, UN Doc. E/SR. 523 (1951).
8. Cranston, supra note 1, at p. 50.
9. This paper refrains from commenting upon the “right to development”. It is noteworthy, however, that with this question, too, the discussion has largely been over whether such a right is a “legal” right, with the risk that more substantive issues affecting the standard of living are likely to be relegated to lower levels of importance.
10. Besides, such an approach would probably be in violation of the Covenant on Economic, Social and Cultural Rights which, by Article 4 requires that any limitations on these rights be, inter alia, “solely for the purpose of promoting the general welfare in a democratic society.” Furthermore, by Article 6(2) steps taken to achieve the full realization of the right to work shall be “under conditions safeguarding fundamental political and economic freedoms to the individual.” Human Rights Compilation, supra n. 4, at p. 4. See also Article 8(l)(a). Some studies claim to show a “relatively mild” degree of correlation at lower levels of development between economic growth and political repression; see, Robert H. Kapp, “Some Preliminary Views on the Relationship between Civil and Political Rights and Economic, Social and Cultural Rights in the Context of Development and on the Right to Development,” mimeo of the International Commission of Jurists (1978), at p. 4. However, to justify the abridgement of civil and political rights one would have to demonstrate a relationship between political repression and the general level of socio-economic existence, that is, economic development, and not merely between repression and economic growth.
11. See, e.g., the reports entitled, “Concern at killings in Indonesia,” “Mexico's democratic tyranny,” and “Global abuse of journalists continues,” all in The (London) Times, 17 December 1983, at pp. 5 and 7; and “Iranian at UN: No Room on Agenda,” The New York Times, 7 December 1983, at p. 3.
12. The item in the preceding footnote on the “summary killings of alleged criminals which human rights groups claim have left up to 4,000 dead in Indonesia this year,” reported that the killings “met with little opposition and considerable public approval…”
13. Among the exceptions to this statement in recent years has been the International Commission of Jurists; see their reports on “Human Rights and Development,” and on “Rural Development and Human Rights.”
14. Commission on Human Rights, Report, 6 UN ESCOR, Supp. 1, at p. 4 para.16 and p. 5 para. 18, UN Doc. E/600(1947). For an excellent summary of the developments up to 1955, see, Annotations on the text of the draft International Covenants on Human Rights 10 GAOR, Annexes, Agenda, Item 28 (Part II), at 1–134, UN Doc. A/2929(1955); cited hereinafter as Annotations.
15. Commission on Rights, Human, supra n. 14, at pp. 15–19 and pp. 24–30 respectivelyGoogle Scholar.
16. Commission on Human Rights, Report of the Sixth Session, 11 UN ESCOR, Supp. 5, at 6 para. 30, UN Doc. E/1681(1950); and Memorandum by the Secretary-General, 6 GAOR, Annexes, Agenda, Item 28 (Part II), at pp. 1–134, UN Doc. A/2929(1955); cited hereinafter as Annotations.
17. Commission on Rights, Human, supra n. 16, at p. 6 para. 31Google Scholar. The Commission thereupon altered the title of the draft Covenant to “Draft First Internation l Covenant on Human Rights,” id., at p. 15.
18. ECOSOC Res. 3O3C(XI) of 9 August 1950,11 UN ESCOR, Supp. l, at p. 25, UN Doc. E/1849(1950); and 11 UN ESCOR, Plenary Meetings, at p. 261 para. 54, UN Doc. E/SR.404 (1950).
19. Social Committee, Report, 11 UN ESCOR, Annexes, Agenda Item 19, at p. 4, UN Doc. E/1808(1950).
20. ECOSOC Res. 3031(XI), 11 UN ESCOR, Supp. 1, at p. 29, UN Doc. E/1849(1950); adopted by a vote of 11 to 0 with four abstentions, 11 UN ESCOR, Plenary Meetings, at p. 264 para. 92, UNDoc. E/SR. 404(1950).
21. 5 GAOR, Plenary Meetings, at p. 564 para. 162, UN Doc. A/PV. 317(1950).
22. Id., Supp. 20, at p. 43, UN Doc. A/1775(1950). It is worth noting that even at this stage the right of individuals to participate in the political processes of their states was not included in the draft Covenant.
23. 12 UN ESCOR, Supp. 1, at p. 8, UN Doc. E/1987(1951). Interestingly, the Soviet Union, supported by Poland and Czechoslovakia tried, unsuccessfully, to get the ECOSOC to alter the Assembly's policy decisions insofar as they concerned implementation measures which, they claimed, constituted “an attempt at intervention in the domestic affairs of States and at encroachment on their sovereignty.” Id., Pleanary Meetings, at p. 14 para. 64, UN Doc. E/SR. 438(1951); id., at p. 19 para. 50. UN Doc. E/SR. 439(1951);and id., at p.27 para. 46, UN Doc. E/SR. 440(1951). The Soviet Union had opposed the inclusion of any measures of implementation in the draft Covenant almost from the start; see, USSR statement of 18 May 1948 in, Commission on Human Rights, Report of the Fifth Session, 9 UN ESCOR, Supp. 10, at pp. 4748, UN Doc. E/1371(1949).
24. The proposal was introduced by the delegate from India; Commission on Human Rights, Report of the Seventh Session, 13 UN ESCOR, Supp. 9, at p. 15 para. 67, UN Doc. E/1992 (1951). It ought to be emphasized that although the defeated proposal spoke of civil and political rights the Draft Covenant did not include any provisions relating to the right of political participation and representation; id., Annex I, at pp. 20–28. Proposals for the inclusion of such rights had, however, been before the Commission from its fifth session onwards. Such proposals first came from the Soviet Union and Yugoslavia, Commission on Rights, Human, supra n. 23, at pp. 28–29Google Scholar; Commission on Rights, Human, supra n. 16, at p. 26Google Scholar; and, Commission on Human Rights, this note, at p. 35. The reason, explained the Soviet delegate at the 438th meeting of ECOSOC, was to remedy the situation whereby, “[t]he constitutions of most capitalist countries mentioned such [political rights], but elections in those countries were so conducted that the rights, while guaranteed in theory by the constitution, were quite illusory.” 12 UN ESCOR, Plenary Meetings, at p. 13 para. 58, UN Doc. E/SR. 438(1951).
25. Commission on Rights, Human, supra n. 24, at p. 6 para. 22Google Scholar.
26. Id.
27. The paragraph requesting reconsideration of G.A. Res. 421E(V) was adopted by a narrower vote of 11 to 7; 13 UN ESCOR, Plenary Meetings, at p. 419 para. 56, UN Doc. E/SR. 525(1951).
28. Id., Supp. 1, at p. 36, UN Doc. E/2152(1951).
29. 6 UN GAOR, Third Committee, Meetings, at p. 291 para. 64, UN Doc. A/C.3/SR.395 (1952); and, Third Committee, Report, id., Annexes, Agenda Item 29, at pp. 45–46 para. 50, UN Doc. A/2112(1951–1952).
30. Id., Plenary Meetings, at p. 518 para. 66, UN Doc. A/PV. 375(1952).
31. Id., para. 67; and, id., Supp. 20, at p. 36, UN Doc. A/2119(1952). The issue was not laid to rest even at this stage, though, and the Soviet Union continued to raise the issue of a single comprehensive covenant until the final adoption of the Covenants in 1966. See, e.g., Commission on Human Rights, Report of the Tenth Session, 18 UN ESCOR, Supp. 7, at p. 6 para. 36, UN Doc. E/2573(1954); and Report of the Third Committee, 21 UN GAOR, Annexes, Agenda Item 62, at p. 9 para. 7, UNDoc. A/6546U966).
32. Member from Egypt, 13 UN ESCOR, Plenary Meetings, at p. 407 para. 28, UN Doc. E/SR. 524(1951).
33. 5 UN GAOR, Third Committee, Meetings, at p. 174 para. 34, UN Doc. A/C. 3/SR. 297(1950).
35. 6 UN GAOR, Plenary Meetings, at p. 514 para. 16, UN Doc. A/PV. 375(1951–1952).
36. Delegate from Canada, 13 UN ESCOR, Plenary Meetings, at p. 409 para. 55, Un Doc. E/SR. 524(1951); and, 5 UN GAOR, Third Comittee, at p. 174 para. 43, UN Doc. A/C.3/SR.297(1950).
37. Delegate from the UK, 5 UN GAOR, Third Committee, Meetings, at p. 107 para. 9, UN Doc. A/C.3/SR.288(1950); from Canada, id., at p. 113 para. 16, UN Doc. A/C.3/SR.289 (1950); from Brazil, id., at p. 171 para. 9, UN Doc. A/C.3/SR.297(1950); and from Pakistan, 11 UN ESCOR, Plenary Meetings, at p. 21 para. 19, UN Doc. E/SR.378(1950).
38. Delegate from the USA, 13 UN ESCOR, Plenary Meetings, at p. 406 para. 13, UN Doc. E/SR.524(1951); and from India, id., at p. 400 para. 31, UN Doc. E/SR.523(1951).
40. Third Committee, Report, supra n. 29, at p. 40 para. 20.
41. Delegate from the USA, 6 UN GAOR, Plenary Meetings, at p. 505 paras. 83–84, UN Doc. A/PV.374(1951–1952). Similar statements were made by the delegate from France, id., at p. 514 para. 19, UN Doc. A/PV.375; New Zealand, 5 GAOR, Third Committee, Meetings, at p. 172 para. 12, UN Doc. A/C.3/SR.297(1950); the Netherlands, id., at p. 173 para. 26; the U.K., id., at p. 174 para. 34; Venezuela, id., at pp. 180–181 paras. 4043, UN Doc. A/C.3/SR.298(1950); India, id., at p. 186 para. 10, UN Doc. A/C.3/SR.299(1950); and Egypt, 13 UN ESCOR, Plenary Meetings, at p. 407 para. 28, UN Doc. E/SR.524(1951).
42. Delegate of Greece, 5 GAOR, Third Committee, Meetings, at p. 179 para. 20, UN Doc. A/C.3/SR.298(1950). It should be noted, however, that the statements of Soviet bloc states, at least, hardly warranted such optimism at the time.
43. Delegate from Venezuela, id., at p. 180 para. 39.
45. Delegate from Belgium, 13 UN ESCOR, Plenary Meetings, at p. 398 para. 15, UN Doc. E/SR.523(1951).
46. The USSR, 5 UN GAOR, Third Committee, Meetings, at p. 175 para. 48, UNDoc. A/C.3/SR.297(1950); Poland, id., at p. 174 para. 35; Chile, id., at p. 176 paras. 69–71; Mexico, id., at p. 178 para. 13, UN Doc. A/C.3/SR.298(1950); the Ukraine, id., at p. 181 para. 51; Iraq, id., at p. 182 para. 63; and, Afghanistan, id., at p. 183 para. 66. See, also, Third Committee Report, supra n. 29, at pp. 40–41 para. 21.
48. Saudi Arabia, 6 GAOR, Plenary Meetings, at pp. 526–517 para. 48, UN Doc. A/PV.375(1951–1952); and Mexico, 5 GAOR, Third Committee, Meetings, at p. 178 para. 14, UN Doc. A/C.3/SR.298(1950).
49. Chile, 6 GAOR, Plenary Meetings, at p. 503 paras. 63–64, UN Doc. A/PV.374(1951–1952);and Syria, id., at p. 506 para. 102.
50. No roll-call vote was taken on G.A.Res.543(VI) which finally decided that two covenants would be drafted. However, a roll-call vote was taken in the Third Committee on the proposal for two covenants and one was taken in the General Assembly on the Chilean proposal seeking to reaffirm the decision to have a single covenant. Both these votes were taken at the Assembly's sixth session. See, 6 GAOR, Third Committee, Meetings, at p. 291 para. 64, UN Doc. A/C.3/SR.395(1951–1952); id., Plenary Meetings, at p. 518 para. 66, UN Doc. A/PV.375 (1951–1952);and, Third Committee Report, supra n. 29, at pp.4546 para. 50.
51. Res. 543(VI), supra n.31.
52. Annotations, supra n. 14, at p. 6 paia. 43; and Commission on Human Rights, supra n. 31.
53. Annotations, supra n. 14, at p. 6 para. 49; and 18 UN ESCOR, Supp. 1, at p. 8, UN Doc. E/2654(1954).
54. Supra n. 44 and associated text. The delay occurred in the General Assembly and its Third Committee; see, Third Committee Report, supra n. 31, at pp. 8–9 paras. 4–8.
55. Supra n. 40 and associated text.
56. 21 GAOR, Supp. 16, at p. 49, UN Doc. A/6316(1966).
57. See, inter alia, resolutions 31/86, 32/66, 33/51, 34/45 and 35/132, respectively at pp. 103, 138–139, 142–143, 169–170, and 187, in Resolutions and Decisions adopted by the General Assembly from its 31st through 35th sessions, UN Docs. A/31/39(1976), A/32/45(1977), A/33/45(1978), A/34/46(1979), and A/35/48(1980). See also, infra n. 129 and associated text.
58. Article 14, paragraphs 3(d) and 3(0; Human Rights Compilation, supra n. 4, at p. 10.
59. Id., at p. 8; emphasis audea.
60. Id.; emphasis added.
61. Id., at p. 9; emphasis added.
62. Id.; emphasis added.
63. Pollock, Seton, Legal Aid – The First 25 Years (1975), at p. 6Google Scholar.
64. Report of the Human Rights Committee, 36 GAOR, Supp. 40, at p. 109 para. 1 (General Comment 3/13), UN Doc. A/36/40(1981). See also, Report of the Human Rights Committee, 37 GAOR, Supp. 40, at p. 93 paras. 3 and 5 (General Comment 6(16)), and 95 para. 1 (General Comment 8(16)), UN Doc. A/37/40(1982); and, infra n. 81 and associated text. In “General Comment 6(16)”, the Human Rights Committee considers that the protection of the right to life requires “positive measures,” such as “to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.”
65. Pollock, , supra n. 63, at pp. 1 and 5Google Scholar. For a historical review of the development of legal aid in the Western world, see, Cappelletti, M. and Gordley, J., “Legal Aid: Modern Themes and Variations,” 24 Stanford Law Review (1972) p. 347 at pp. 347–386CrossRefGoogle Scholar.
66. Pollock, , supra n. 63, at p. 33Google Scholar. See also, Johnson, Earl, it., Justice and Reform: The Formative Years of the O.E.O. Legal Services Program (1974)Google Scholar. The development has generally been from a point where legal aid was considered as charity to one where it is considered as a legal right “to be protected by force of law… [and which] requires affirmative state action… [that] must provide protection which is not merely formal, but actual and effective.” Cappelletti, and Gordley, , supra n. 65, at p. 387Google Scholar.
67. See infra, section III for an example illustrating this point. A recent report on human rights and mass exoduses states that the provisions of the Universal Declaration dealing with the individual before the law - and, by implication, those of the Covenant, too – “appear to have been conceived for a society in which the legislature is truly independent, where “competent national tribunals”… exist and where “everyone (charged with a penal offence) has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”… This is a “never-never land” for most of the victims of man's inhumanity to man.” Study on Human Rights and Massive Exoduses (Special Rapporteur: Sadruddin Aga Khan), UN Doc. E/CN.4/1503 of 31 Dec. 1981, at p. 21 paras. 41–42.
68. Supra nn. 38 to 40 and associated text.
69. Supra nn. 32,42 and 43 and associated texts.
70. Inter alia, delegate from Egypt, 5 GAOR, Third Committee, Meetings, at p. 109 para. 23, UN Doc. A/C.3/SR.288(1950); Czechoslovakia, id., at pp. 117–118 paras. 7–8, UN Doc. A/C.3/SR.290(1950); Cuba, id., at p. 125 para. 5, UN Doc. A/C.3/SR.291(1950); the Philippines, id., at p. 126 para. 17; El Salvador, id., at p. 129 para. 57; and, Ethiopia, id., at p. 130 para. 63.
71. Alston, Philip, “Development and the Rule of Law: Prevention Versus Cure as a Human Strategy,” International Commission of Jurists, 31 Development Human Rights and the Rule of law, (1981) at p. 51Google Scholar.
72. Delegate from Australia, 7 UN ESCOR, 218th Plenary Meeting, at p. 696(1948). The delegate from Belgium made the same point, 5 GAOR, Third Commitee, Meetings, at p. 181 para. 46, UN Doc. A/C.3/SR.298(1950).
73. The point about resources may be given some concreteness by a simple, if unscientific, comparison of existing facilities for law education in a developing state, India, and a couple of developed ones, the U.K. and the U.S. All the statistics come from the period 1975 to 1980 and are thus roughly comparable. The object is to provide a qualitative comparison rather than a precise numerical one. In India, teacher-student ratios vary from 1:25 to 1:152 in university law departments with an average around 1:50; in law colleges the ratio is worse. In Britain, the ratioisaboutl:14 almost uniformly across all university law departments. More than 70% of university law teachers in India are part-time teachers with more than 40% of all law teachers having done no research whatsoever. In Britain, less than 16% of university law teachers are parttime and most are engaged in research as it is a factor in promotion. Most Indian law libraries have less than 10,000 volumes, with only three having more than 20,000. All British university libraries have more than 10,000 volumes and about half have more than 20,000. The major centers at Oxford, Cambridge and London have well over 100,000 volumes each, further supplemented by other libraries at these centers. In the U.S., only one law school reported less than 70,000 volumes in 1980. During the 3-year period 1976–78, university law libraries in India spent between Rs. 30,000 (about $3,000) to Rs. 280,000 ($28,000) for library materials. In contrast, for the single year 1980–81 small American law schools spent on an average $105,106 on library materials. These statistics were taken from S.K. Agrowala, “Development and Planning of Law Libraries in India,” 3 Int. J.L. Libraries 2 (1975); J.F. Wilson and S.B. Marsh, “A Second Survey of Legal Education in the United Kingdom,” J. Soc. Pub. Teachers L. 241 (July 1975); and David A. Thomas, “1980 Statistical Survey of Law School Libraries and Librarians,” 74 L. Library J. 359(1981). A more recent but unpublished study by Agrawala shows some increase in the holdings of Indian university law libraries, infra n. 74. For some other developing states see, N.A. Ogbeide, “Law Librarianship in Nigeria: History, Development and Problems,” 4 Int. J.L. Libraries 19(1976); and Myrna S. Feliciano, “Law Libraries and Legal Documentation in the Philippines,” id., at p. 176. All the above studies relating to developing states point out their law libraries suffer from understaffing and a chronic lack of trained persons.
74. Agrawala, , supra n. 73, at p. 3Google Scholar. The quality of incoming law students continues to be “appalling” and while the Bar Council of India has recommended a minimum admission standard of 40% of the total marks (generally classified as “Third Class”) even that low standard is not observed by many law colleges and university departments. There is no admission test for law study in India. S.K. Agrawala, “Legal Education,” unpublished paper of the Indian Law Institute, referred to me by Dr. S.N. Jain, Director of the Institute, New Delhi.
75. 5 GAOR, Third Committee, Meetings, at p. 127 para. 30, UN Doc. A/C.3/SR.291 (1950).
76. Report of the Human Rights Committee, 33 GAOR, Supp. 40, at p. 69 para. 411, UN Doc. A/33/40(1978).
77. UN Doc. CCPR/C/l/Add.57 of 3 February 1982.
78. The text of the letter from Chile's Minister for Foreign Affairs to the Chairman of the Human Rights Committee is given in, Report of the Human Rights Committee, 34 GAOR, Supp. 40, at pp. 119–120, UN Doc. A/34/40(1979). For details, see Jhabvala, , supra n. 2, at pp. 90–91Google Scholar. The report of Romania emphatically stated that the Committee should operate “in strict observance of the principle of non-interference in the internal affairs of States.” Report of the Human Rights Committee, this note, at p. 36 para. 150.
79. Report of the Human Rights Committee, 35 GAOR, Supp. 40, at p. 86 para. 380, UN Doc. A/35/40(1980).
80. Id., at pp. 86–87 paras. 382–383.
81. General Comments 3/13 and 4/13, Report of the Human Rights Committee, 36 GAOR, Supp. 40, at p. 5 para. 20, UN Doc. A/36/40(1981). (Emphasis added).
82. See section III below, for an example.
83. Reservation entered by Gambia, in, United Nations, Multilateral Treaties Deposited with the Secretary-General, Status as at 31 12 1981, at p. 121Google Scholar, UN Doc. ST/LEG/SER.E/1(1981). For the text of Article 14(3)(d) see, supra n. 58 and associated text.
85. Report of the Human Rights Committee, supra n. 76, at p. 43 para. 260Google Scholar.
86. UN Doc. CCPR/C/SR.363 of 15 July 1982, at p. 9 para. 55, as reported to the Committee by its secretary. In addition, some states have requested assistance from the Commission on Human Rights; see, on the request of Equatorial Guinea, , 20 UN Chronicle 79(No. 7, 1983)Google Scholar; ECOSOC Res. 1981/38, 1981 ESCOR, Supp. 1, at pp. 26–27, UN Doc. E/1981/8K1981); and report of the expert, UN Doc. E/CN.4/1439 and Add. 1. On the request of Uganda, see, ECOSOC Decision 1981/146,1981 ESCOR, Supp. 1, at p. 46, UN Doc. E/1981/81(1981).
87. For a fuller discussion on this point see, Jhabvala, supra n. 2, at pp. 96–99.
88. Kapp, , supra n. 10, at p. 3Google Scholar. See also, Alston, , supra n. 71, at p. 51Google Scholar.
89. Third Committee Report, supra n. 29, at p. 41 paia. 22.
90. Ghandhi, Peace Foundation and the National Labour Institute, National Survey on the Incidence of Bonded Labour, Preliminary Report, (New Delhi, 1978), at p. 8Google Scholar. Hereinafter cited as Survey on Bonded Labour.
91. Id.
92. Id., at pp. 8–9.
93. Id., at p. 18. Data from two other states had not been received when the preliminary report was published. The authors of the study decided on a priori grounds that the incidence of bonded labour in the remainder of the states was “highly improbable”. But see, Int'l Commission of Jurists, Conclusions and Recommendations of the Seminar on Rural Development and Human Rights in South Asia (1983), at paias. 61–92. According to the conclusions of this seminar, “[c]hronic bonded labour is reported to be aròund 5 million, but taking into account the recent wider interpretation of bonded labour by the Supreme Court of India, the numbers of bonded and forced labourers in India may be as much as 50 million. In addition to India, bonded labour is widespread in Nepal and, to a lesser extent and with modifications, in Pakistan.” Id., para. 72. Among the other conclusions of this seminar was that bonded labour is “increasing and spreading from the rural to the urban areas…” Id., Preface.
94. Human Rights Compilation, supra n. 4, at p. 9.
95. By Article 49(2) of the Covenant, it enters into force three months after the deposit of the instrument of ratification or accession; id., at p. 15. India is also a party to the 1926 Slavery Convention as amended by the 1953 Protocol;Multilateral Treaties Deposited with the Secretary-General, supra n. 83, at pp. 509 and 511; and to the 1930 Forced Labour Convention of the I.L.O. As of 1 January 1984, India was not a party to the 1957 I.L.O. Abolition of Forced Labour Convention; I.L.O., Chart of Ratifications of Int'l. Labour Conventions.
96. Article 23(1); for the text and a commentary thereon, see, Shukla, V.N., The Constitution of India (6th ed., Singh, D.K., 1975), at pp. 117–119Google Scholar. In addition, the Untouchability (Offences) Act of 1955 and the Untouchability (Offences) Amendment and Miscellaneous Provisions Act of 1976 declare certain forced labour practices to be deemed a practice of untouchability and impose fines and imprisonment as punishment for engaging in such practices.
97. See initial report submitted by India under Article 40 of the Covenant on Civil and Political Rights, UN Doc. CCPR/C/10/Add.8 of 13 July 1983, at pp. 12–13 paras. 51–56. This report summarized existing legislation and possible administrative and judicial remedies, but did not mention the existence or absence of bonded labour.
98. Survey on Bonded Labour, supra n. 90, at p. ix.
99. Id., at p. 22.
100. Id., at pp. 35–37.
101. During the period of this case-study (the 1970s) the GNP per capita in India increased from Rs. 632 (1970–71) to Rs. 1210 (1977–78); Government of India, Ministry of Finance, Budget of the Central Government for 1981–82, Part 4: Economic Survey for 1980–81, at p. 65; It has been preferred to keep the currency units in Indian rupees rather than risk the introduction of economic and cognitive distortions associated with conversion to another currency unit.
102. Survey on Bonded Labour, supra n. 90, at p. 37.
103. Id., at pp. 32–33.
104. Id., at p. 33.
105. The report bluntly states that “[d]eviation [from the deal] results in ruthless punishment.” Id., at p. 3. In addition, charges, real or false, may be filed by the landlord leading to his arrest and ill-treatment by the police; see, Rural Development and Human Rights in South Asia, supra n. 93, at para. 65.
106. See, Dhavan, Rajeev and Kalpakam, P., The Supreme Court Under Strain: The Challenge of Arrears (Bombay, 1978)Google Scholar. The authors conclude that “[t]here seems to be no way in which the court can clear this back-log. That is not all. If we examine the nature of the pending cases in any kind of detail, it is evident that many of the cases before the court have been pending for a long time. Civil appeal cases have not been heard for eleven years. Writ petitions are not heard for four or five years. Criminal appeals are not heard for the same time or even longer. And yet the workload continues to mount.” Id., at p. 103. Similar conclusions can be drawn about the High Courts and most lower courts in the country. Thus, up to 30 November 1982, the High Court at Bombay had more than 80,000 cases pending and the number was growing. Arrears in other courts in the state of Maharashtra up to the same date were as follows: City Civil Courts – 45,775; District Courts – 1, 149,376; Small Causes Courts: Bombay – 83,723, Pune – 14,500, Nagpur – 6,166; Metropolitan Magistrates Court, Bombay – 135,247; Govt. of Maharashtra, Law and Judiciary Department, Performance Budget 1983–84, at pp. 4–5 and 61–63. See also, Baxi, Upendra, The Crisis of the Indian Legal System, (Delhi 1982), at pp. 58–83Google Scholar.
107. Survey on Bonded Labour, supra n. 90, at pp. 11, 22, 27 and 28.
108. Id., at p. 21; see also, at pp. ix, 4 and 28. More than half the persons surveyed were in bondage for loans less than Rs. 500. The approach of the landlord-moneylenders in many places appears to be to grant petty loans from time to time, thus holding the labourers in bondage on a continuing and indefinite basis. Id., at p. 28.
109. Id., at pp.ix, 3 and 29.
110. Id., at D. 33. Focussing upon the economic aspects of the situation, the World Bank reported that, “[t]he rural poor are part of an ancient and well-established social structure, and efforts to improve their productivity without regard to this structure are likely to be frustrated.” The World Bank, World Development Report, 1978 (1978), at p. 38.
111. Survey on Bonded Labour, supra n. 90, at p. 10.
112. Id., at pp. 27–28. The terms “scheduled castes” and “scheduled tribes” derive from the special classfication used by the Indian Constitution to identify poorer, backward and socially inferior sections of the population, including the so-called “untouchables.” Persons in these categories are designated for special governmental assistance and “affirmative action” programs. See, Shukla, , supra n. 96, at pp. 539–541Google Scholar. The delegate from India stated to the Third Committee at its 37th session, however, that untouchability “had been universally condemned by all sections of opinion in India, and had been legally abolished since independence. There was no institutionalized discrimination against harijans or any other group.” 20 UN Chronicle (1983), at pp. 94–95Google Scholar. See also, Rural Development and Human Rights in South Asia, supra n. 93, at para. 8.
113. Survey on Bonded Labour, supra n. 90, at pp. 32, 33 and 35. Further, “[o]ffers to assist a bonded labourer to be liberated from his bondage are often rejected, partly from fear of reprisals, and partly from fear that he will be unable to obtain other employment and consequently be reduced to an even worse state of poverty and insecurity.” Rural Development and Human Rights in South Asia, supra n. 93, at para. 66. See also, supran. 105 and associated text.
114. Survey on Bonded Labour, supra n. 90, at p. ix.
115. Id., at pp. 5 and 11.
116. Id., at p. 26.
117. Id., at p. 11.
118. Some of these other problems inevitably worsen the situation of bonded labourers. Thus, “[w]ith increasing indebtedness of the agricultural labour households and growing agricultural labour population… it can be safely assumed that with [a] high probability the conversion of impoverished agricultural labourers into bonded labourers is finding itself in the phase of high intensification.” Id., at p. 26.
119. Baxi, , supra n. 106, at pp. 123 and 209Google Scholar. The problems regarding the police system and custody are discussed in Chapters 4 and 5, and those regarding the prison system, in Chapters 6, 7 and 8. A partial, and random, listing of other human rights problems in India is on p. 139. See also, Rural Development and Human Rights in South Asia, supra n. 93; and, The Int'l League for the Rights of Man, “The Violation of Human Rights in India,” 5 Case Studies on Human Rights and Fundamental Freedoms: A World Survey (Veenhoven, W.A. et al. , eds., 1976), at pp. 473–531Google Scholar. For a succinct report on recent efforts in India to provide interim judicial relief in cases of serious human rights violations, see, Baxi, Upendra, “Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India,” in The Review (Int. Commission Jurs., NO. 29, 12 1982), at pp. 37–49Google Scholar.
120. Three other objections were also advanced to the inclusion of economic, social and cultural rights in the same covenant as that which would contain civil and political rights; supra nn. 42–45 and associated text. None of these objections is relevant to the theory of human rights.
121. In the Committee's own words, its task is “to assist States parties in the promotion and protection of the human rights recognized in the Covenant.” Report of the Human Rights Committee, 32 GAOR, Supp. 44, at p. 18 para. 105, UN Doc. A/32/44(1977).
122. On the simultaneous existence of two or more legal systems within African states and the general difficulties of establishing “national legal systems” there, See, Africa and Law (Hutchison, T.W. et al. , eds., 1968)Google Scholar.
123. Baxi, , supra n. 106, at p. 129Google Scholar. Emphasis in the original. See also, the section on India in Amnesty International Report 1983, at pp. 195–198.
124. Baxi, , supra n. 106, at pp. 129–130Google Scholar. The report, Study on Human Rights and Massive Exoduses, bluntly states that, “[t]he rule of law, which is the only guarantee of just treatment of the individual, was simply non-existent in many of the countries from which exodus took place… Worse, the law was often misused to dispossess and/or expel communities, to institutionalize racial or economic discrimination and to make it impossible for parts of the population to continue to live in their country of habitual residence.” Supra n. 67, at pp. 17–18 para. 36.
125. Defined as “living at the very maigin of existence - with inadequate food, shelter, education and health care.” McNamaia, Robert defined it as, “a condition of life so characterized by malnutrition, illiteracy, disease, squalid surroundings, high infant mortality, and low life expectance as to be beneath any reasonable definition of human decency.” World Development Report, supra n. 110, Preface, and p. 1Google Scholar. Bangladesh, India, Indonesia and Pakistan reportedly contain two-thirds of the world's “absolute poor”. Id., at p. 38.
126. The report on human rights and mass exoduses emphasizes that “a large number of exiles would have lost “life, liberty and security” had they not left their countries. These [rights] were often presented as options: life might be less threatened if liberty were forfeited.” Supra n. 67, at p. 19 para. 39. According to the report, by the early 1980s more than ten million persons were part of massive exoduses; id., at p. 1 para. 1. According to the FAO, some 400 million to 450 million persons are “severely undernourished” in the developing market economies alone; U.N. Doc. E/1981/22, at p. 3 para. 1.
127. The seminar held by the International Commission of Jurists and the Human Rights Institute of Lucknow, India, came to a similar conclusion; see, Rural Development and Human Rights in South Asia, supra n. 93, at para. 76.
128. Human Rights Compilation, supra n. 4, at p. 3.
129. Res. 32/130, 32 GAOR, Supp. 45, at pp. 150–151, UN Doc. A/32/45(1977): and Res. 34/46, 34 GAOR, Supp. 45, at pp. 170–171, UN Doc. A/34/45(1979).
130. The debate at the General Assembly's thirty second session led one observer to conclude that “[a] spirit of revisionism is abroad at the United Nations which questions many of the fundamental premises on which the International Bill of Human Rights was erected,” and that the approach to human rights as spelt out in the Covenants “has now been put in question.” Moses Moskowitz, “Implementing Human Rights: Present Status and Future Prospects,” in Human Rights: Thirty Years After the Universal Declaration (Ramcharan, B., ed., 1979), at pp. 111–112Google Scholar.
131. Articles 16–22 of the Covenant on Economic, Social and Cultural Rights. A special expert body, the Human Rights Committee, monitors the Covenant on Civil and Political Rights. Human Rights Compilation, supra n. 4, at pp. 6–7 and 12–13 respectively.
132. General Assembly Res. 34/45, 34 GAOR, Supp. 46, at pp. 169–170, Un Doc. A/34/46 (1979).
133. ECOSOC Decision 1978/10, 1978 ESCOR, Supp. 1, at p. 34, UN Doc. E/1978/78 (1978). See also, ECOSOC Res. 1988(LX), 60 UN ESCOR, Supp. 1, at pp. 11–12, UN Doc.E/5850(1976); and Report of the Sessional Working Group on the Implementation of the International Covenant on Economic, Cultural [sic!] and Social Rights, UN Doc. E/1981/64. Considering proposals to improve its effectiveness, it did not adopt a proposal to constitute itself as a body of independent experts. Instead, it decided to compose itself of “governmental experts”, so as to “ensure a high level of expertise and representation… and preserve the authority and prestige currently given to it by its intergovernmental structure…” Id., at p. 8 para. 25. See also, at p. 9 para. 35.
134. The delegate from China had made a proposal along these lines to the ECOSOC; see, 13 UN ESCOR, Plenary Meetings, at p. 407 para. 22, UN Doc. E/SR.524(1951).
