Human rights violations occur within states rather on the high seas or in outer space outside the jurisdiction of any one state.349 Thus, it follows that effective protection and enjoyment of human rights has to come from within the state, the international human rights system seeks to persuade or put pressure on member states to meet their international obligations under human rights instruments that they have ratified or to which they have acceded. There are only two ways through which states can comply with their legal international obligations as contained in treaties: firstly, by observing or respecting their national laws (constitution or statute law) which are consistent with international norms; and secondly, by making those international norms or obligations part of the national legal or political order, that is, they become domesticated (internalized or incorporated).
International compliance
Besides the adoption of the two wide-covering Covenants (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights) in 1966, a number of other treaties (pieces of legislation) have been adopted at the international level. They are generally known as human rights instruments. Some of the most significant include:
Convention on the Prevention and Punishment of the Crime of Genocide (CPCG) (adopted 1948, entry into force: 1951)
Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted 1965, entry into force: 1969)
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) (entry into force: 1981)
United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1987)
Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1990)
International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) (adopted 1990, entry into force: 2003)
Convention on the Rights of Persons with Disabilities(CRPD) (entry into force: 3 May 2008)
Compliance in India
The Constitution of India is one of the most rights-based constitutions in the world. Drafted around the same time as the Universal Declaration of Human Rights (1948), the Indian Constitution captures the essence of human rights in its Preamble, and the sections on Fundamental Rights and the Directive Principles of State Policy. The Constitution of India is based on the principles that guided India's struggle against a colonial regime that consistently violated the civil, political, social, economic and cultural rights of the people of India
The National Human Rights Commission (NHRC) of India is an autonomous statutory body established on October 12, 1993 , under the provisions of The Protection of Human Rights Act, 1993 (TPHRA). The Commission is in conformity with the Paris Principles - a broad set of principles agreed upon by a number of nations for the promotion and protection of human rights, in Paris in October 1991.
Similarly state human rights commissions (SHRC) have been established in many states for the protection of human rights at regional level.
Child Labour (Prohibition and Regulation) Act, 1986
The Mental Health Act 1987
The Human Rights Act, 1993
The Persons with Disability (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 is passed.
National Rural Employment Guarantee Act (NREGA) guarantees universal right to employment
Enforcement of human rights law
There is currently no international court to administer international human rights law, however, quasi-judicial bodies exists under some UN treaties (e.g., Human Rights Committee under ICCPR). The International Criminal Court (ICC) has jurisdiction over the crime of genocide, war crimes and crimes against humanity. While the European Court of Human Rights, and the Inter-American Court of Human Rights enforce regional human rights law. Although these same international bodies also hold jurisdiction over cases regarding international humanitarian law, it is crucial to recognize that the two frameworks constitute distinctly different legal regimes.
The United Nations Human Rights Bodies do have some quasi legal enforcement mechanisms. These include the Treaty Bodies attached to the current seven active treaties, and the Human Rights Council complaints procedures, known as the 1235 and 1503 mechanisms.
The enforcement of international human rights law is the responsibility of the Nation State, and it is the primary responsibility of the State to make human rights a reality.
In practice, many human rights are very difficult to legally enforce due to the absence of consensus on the application of certain rights, the lack of relevant national legislation or of bodies empowered to take legal action to enforce them.
In over 110 countries national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing. The Paris Principles were defined at the first International Workshop on National Institutions for the Promotion and Protection of Human Rights in Paris on 7-9 October 1991, and adopted by United Nations Human Rights Commission Resolution 1992/54 of 1992 and the General Assembly Resolution 48/134 of 1993. The Paris Principles list a number of responsibilities for national institutions.
Environmental Law
Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that, very broadly, operate to regulate the interaction of humanity and the rest of the biophysical or natural environment, toward the purpose of reducing the impacts of human activity
International compliance
While the bodies that proposed, argued, agreed upon and ultimately adopted existing international agreements vary according to each agreement, certain conferences, including the following have been very instrumental. Also many principles have been followed while formulating and agreeing upon these laws like polluter pays principle, sustainable development, precautionary principle, common concern of humankind and the common heritage.
United Nations Conference on the Human Environment 1972.
World Commission on Environment and Development 1983.
United Nations Conference on Environment and Development 1992.
World Summit on Sustainable Development.2002.
Compliance in India
Environment protection - from Indian constitution perspective
The State's responsibility with regard to environmental protection has been laid down under Article 48-A of our Constitution. Environmental protection is a fundamental duty of every citizen of this country under Article 51-A(g), Article 48-A of the Constitution comes under Directive Principles of State Policy and Article 51 A(g) of the Constitution comes under Fundamental Duties.. The 42nd amendment to the Constitution was brought about in the year 1974 makes it the responsibility of the State Government to protect and improve the environment and to safeguard the forests and wildlife of the country. The latter, under Fundamental Duties, makes it the fundamental duty of every citizen to protect and improve the natural environment including forests, lakes, rivers and wildlife and to have compassion for living creatures.
The forest (conservation) act, 1980
This Act provides for the conservation of forests and regulating diversion of forestlands for non-forestry purposes. When projects falls within forestlands, prior clearance is required from relevant authorities under the Forest (Conservation) Act, 1980. State governments cannot de-reserve any forestland or authorize its use for any non-forest purposes without approval from the Central government
Environmental (protection) act, 1986 The Environment (Protection) Act, 1986 was introduced as an umbrella legislation that provides a holistic framework for the protection and improvement to the environment.
Air (prevention and control of pollution) act 1981
The objective of this Act is to provide for the prevention, control and abatement of air pollution, for the establishment, with a view to carrying out the aforesaid purposes, of Boards, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith.
Water (prevention & control ) act 1974
The objectives of the Water (Prevention and Control of Pollution) Act are to provide for the Prevention and Control of Water Pollution and the maintenance or restoration of the wholesomeness of water for the establishment, with a view to carrying out the purposes aforesaid, of Boards for the prevention and control of water pollution, for conferring on and assigning to such Boards powers and functions relating thereto and for matters connected therewith
Wildlife protection act, 1972
According to the Wildlife Protection Act, 1972 "wildlife" includes any animal, bees, butterflies, crustacea, fish and moths; and aquatic or land vegetation which forms part of any habitat. In accordance with Wildlife (Protection) Amendment Act, 2002 "no alternation of boundaries / National Park / Sanctuary shall be made by the State Govt. except on recommendation of the National Board for Wildlife (NBWL)".
The biological diversity act, 2002
The Ministry of Environment and Forests has enacted the Biological Diversity Act, 2002 under the United Nations Convention on Biological Diversity signed at Rio de Janeiro on the 5th day of June, 1992 of which India is also a party. This Act is to "provide for the conservation of biological diversity, sustainable use of its components, and fair and equitable sharing of the benefits arising out of the sued of biological resources, knowledge and for matters connected therewith or incidental thereto." As per the provision of act certain areas, which are rich in biodiversity and encompasses unique and representative ecosystems are identified and designated as biosphere reserve to facilitate its conservation. All restrictions applicable to protected areas like National Park & Sanctuaries are also applicable to these reserves.
Hazardous wastes (management and handling) amendment rules, 2003
These Rules classify used mineral oil as hazardous waste under the Hazardous Waste (Management & Handling) Rules, 2003 that requires proper handling and disposal. Organization will seek authorization for disposal of hazardous waste from concerned State Pollution Control Boards (SPCB) as and when required.
Ozone depleting substances (regulation and control) rules, 2000
MoEF vide its notification on.17th July, 2000 under the section of 6, 8 and 25 of the Environment (Protection) Act, 1986 has notified rules for regulation/ control of Ozone Depleting Substances ( ODS) under Montreal Protocol. As per the notification certain control and regulation has been imposed on manufacturing, import, export, and use of these compounds. Organisations as per provisions of notification shall is phase out all equipment, which uses these substances, and is aiming at CFC free organisation in near future.
Trade law
International compliance
The United Nations Commission on International Trade Law (UNCITRAL) was established by the General Assembly in 1966, of 17 December 1966). In establishing the Commission, the General Assembly recognized that disparities in national laws governing international trade created obstacles to the flow of trade, and it regarded the Commission as the vehicle by which the United Nations could play a more active role in reducing or removing these obstacles.
In the absence of an international organization for trade, countries turned, from the early fifties, to the only existing multilateral international institution for trade, the "GATT 1947" to handle problems concerning their trade relations. Therefore, the GATT would over the years transform itself into a de facto international organization. It was contemplated that the GATT would be applied for several years until the ITO came into force. However, since the ITO was never brought into being, the GATT gradually became the focus for international governmental cooperation on trade matters.
Seven rounds of negotiations occurred under GATT before the eighth round - the Uruguay Round - concluded in 1994 with the establishment of the World Trade Organisation (WTO) as the GATT's replacement. The GATT principles and agreements were adopted by the WTO, which was charged with administering and extending them.
The World Trade Organization is an international organization which was created for the liberalization of international trade. The World Trade Organization came into existence on January 1st, 1995 and it is the successor to General Agreement on Trade and Tariffs (GATT). The World trade organization deals with the rules of trade between nations at a global level. WTO is responsible for implementing new trade agreements. All the member countries of WTO have to follow the trade agreement as decided by the WTO
Non-Discrimination. It has two major components: the most favored nation (MFN) rule, and the national treatment policy. Both are embedded in the main WTO rules on goods, services, and intellectual property, but their precise scope and nature differ across these areas. The MFN rule requires that a WTO member must apply the same conditions on all trade with other WTO members, i.e. a WTO member has to grant the most favorable conditions under which it allows trade in a certain product type to all other WTO members.
Reciprocity. It reflects both a desire to limit the scope of free-riding that may arise because of the MFN rule, and a desire to obtain better access to foreign markets. A related point is that for a nation to negotiate, it is necessary that the gain from doing so be greater than the gain available from unilateral liberalization; reciprocal concessions intend to ensure that such gains will materialize.
Binding and enforceable commitments. The provisions of the WTO are binding on the member states and have to be observed strictly. These schedules establish "ceiling bindings": a country can change its bindings, but only after negotiating with its trading partners, which could mean compensating them for loss of trade. If satisfaction is not obtained, the complaining country may invoke the WTO dispute settlement procedures.
Transparency. The WTO members are required to publish their trade regulations, to maintain institutions allowing for the review of administrative decisions affecting trade, to respond to requests for information by other members, and to notify changes in trade policies to the WTO. These internal transparency requirements are supplemented and facilitated by periodic country-specific reports (trade policy reviews) through the Trade Policy Review Mechanism (TPRM).
Compliance in India
India is one of the founding members of WTO along with 134 other countries. India's participation in an increasingly rule based system in governance of International trade, would ultimately lead to better prosperity for the nation. Various trade disputes of India with other nations have been settled through WTO. India has also played an important part in the effective formulation of major trade policies. By being a member of WTO several countries are now trading with India, thus giving a boost to production, employment, standard of living and an opportunity to maximize the use of the world resources.
India has incorporated in its laws ample number of provisions and acts to ensure the implementation and compliance of WTO provisions.
Copyright Act 1957
Patent Act 1970
Trademark Act 1999
Air law
Space law
Beginning in 1957, nations began discussing systems to ensure the peaceful use of outer space. Bilateral discussions between the United States and USSR in 1958 resulted in the presentation of issues to the UN for debate. In 1959 the UN created the Committee on the Peaceful Uses of Outer Space (COPUOS). COPUOS in turn created two subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee. The COPUOS Legal Subcommittee has been a primary forum for discussion and negotiation of international agreements relating to outer space.
International treaties
Five international treaties have been negotiated and drafted in the COPUOS:
* The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (the "Outer Space Treaty") 1967.
* The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement") 1968.
* The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention") 1972.
* The Convention on Registration of Objects Launched Into Outer Space (the "Registration Convention") 1975.
* The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Treaty") 1979.
The Outer Space Treaty is the most widely-adopted treaty, with 98 parties. The Rescue Agreement, the Liability Convention and the Registration Convention all elaborate on provisions of the Outer Space Treaty. U.N. delegates apparently intended that the Moon Treaty serve as a new comprehensive treaty which would supersede or supplement the Outer Space Treaty, most notably by elaborating upon the Outer Space Treaty's provisions regarding resource appropriation and prohibition of territorial sovereignty. The Moon Treaty has only 12 parties, and many consider it to be a failed treaty due to its limited acceptance. India is the only nation that has both signed the Moon Treaty and declared itself interested in going to the moon. India has not ratified the treaty; an analysis of India's treaty law is required to understand how this affects India legally. In addition, the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space, and Under Water ("Partial Test Ban Treaty") banned the testing of nuclear weapons in outer space.
Compliance in India
Law of the sea
Intellectual property rights
Dispute resolution and enforcement through arbitration
Definition:- Arbitration agreement, arbitration clause and submission agreement In general, the arbitration agreement provides the basis for arbitration. It is defined as an agreement to submit present or future disputes to arbitration. This generic concept comprises two basic types:
a) A clause in a contract, by which the parties to a contract undertake to submit to arbitration the disputes that may arise in relation to that contract (arbitration clause); or
b) An agreement by which the parties to a dispute that has already arisen submit the dispute to arbitration (submission agreement).
The arbitration clause therefore refers to disputes not existing when the agreement is executed. Such disputes, it must be noted, might never arise. That is why the parties may define the subject matter of the arbitration by reference to the relationship out of which it derives.
The submission agreement refers to conflicts that have already arisen. Hence, it can include an accurate description of the subject matters to be arbitrated. As we shall discuss later, some national laws require the execution of a submission agreement regardless of the existence of a previous arbitration clause. In such cases, one of the purposes of the submission agreement is to complement the generic reference to disputes by a detailed description of the issues to be resolved.
Enforcement of an arbitration agreement
By entering into an arbitration agreement, the parties commit to submit certain matters to the arbitrators' decision rather than have them resolved by law courts.
Objectives
Thus, the parties:
a) Waive their right to have those matters resolved by a court; and
b) Grant jurisdictional powers to private individuals (the arbitrators).
We shall call these two main effects of the agreement "negative" and "positive", respectively.
Enforcement of an arbitration agreement under the
UNCITRAL Model Law and the New York Convention
The Model Law defines the arbitration agreement as "An agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not" [1] .
According to the New York Convention "Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractua1 or not, concerning a subject matter capable of settlement by arbitration [2] " .
Concerning the enforcement of an arbitration agreement, the Model Law establishes that:
(1) A court before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so requests not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed.
(2)Where an action referred to in paragraph (1) of this article has been brought, arbitral proceedings may nevertheless be commenced or continued, and an award may be made, while the issue is pending before the court" [3] .
Criteria for determining the law applicable to the arbitration agreement
The law applicable to the arbitration agreement governs the formation, validity, enforcement and termination of the arbitration agreement. It deals with such aspects as the formal requirements of the arbitration agreement, the arbitrability of its subject matter, its autonomy in relation to the contract in which it is contained, the arbitrators' capacity to rule on their own jurisdiction and the extent to which judicial review is admissible. The applicable law also determines whether or not the submission agreement is required. There are different criteria for determining the law applicable to the arbitration agreement. We shall focus on the most common ones:
• The law chosen by the parties - Some laws allow the parties to choose the law applicable to the arbitration agreement, irrespective of the law governing other question relating to the arbitration.
• The law applicable to the contract - Some authors claim that the law applicable to the arbitration agreement is usually the law applicable to the contract that contains the clause.7 These authors nevertheless admit that the law applicable to the agreement could be different, since the arbitration agreement is separable from the main contract.
• The procedural law applicable to the arbitration - Another criterion consists of applying to the arbitration agreement the procedural law that governs the arbitration. As shall be discussed (infra 6.4.7 and 6.4.8 ), in the absence of an agreement the procedural law is in principle the law of the place of arbitration. Although rare in practice, the parties have the right to choose a procedural law other than the law of the place of arbitration.
• The law of the place of the arbitration - Parties seldom indicate either a special law applicable to the arbitration agreement or a specific procedural law. Consequently, the place of arbitration becomes important because it will then determine the law applicable to the arbitration agreement (see infra 6.4.7 and 6.4.8).
Enforcement by states
Apart from a state's natural inclination to uphold certain norms, the force of international law comes from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law.
It is implicit in the Westphalian system of nation-states, and explicitly recognized under Article 51 of the Charter of the United Nations, that all states have the inherent right to individual and collective self-defense if an armed attack occurs against them. Article 51 of the UN Charter guarantees the right of states to defend themselves until (and unless) the Security Council takes measures to keep the peace.
Enforcement by international bodies
Following provisions are there for the purpose of enforcement of international law.
One of the fundamental principles declared in Article 2(4) of the UN Charter was that all member states should refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.
The collective enforcement system, which is provided for primarily in Chapter VII of the Charter, envisages a central role for the United Nations Security Council in the maintenance of international peace and security. It provides in Article 39 that the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression
The Security Council can provide for measures not involving the use of force to be undertaken against a breaching state. Such measures may include the disruption of economic relations, most usually by the imposition of economic sanctions, and the severance of diplomatic relations (UN Charter, Article 41).
The Security Council may authorize such use of force as may be necessary in order to restore international peace and security (UN Charter, Article 42).
The U. N. Assembly also declared, by its adoption of resolution 377 A, that it could call for other collective measures-such as economic and diplomatic sanctions-in situations constituting the milder "threat to the Peace".
Alleged violations of the Charter can also be raised by states in the Security Council. The Security Council could subsequently pass resolutions under Chapter VI of the UN Charter to recommend the "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the Council's convictions. In rare cases, the Security Council can adopt resolutions under Chapter VII of the UN Charter, related to "threats to Peace, Breaches of the Peace and Acts of Aggression," which are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations
