Non-Derogable Rights

Human Rights are the basic rights that are present from birth to death. Out of these rights there are certain rights like Right to Life, Right to not be enslaved, Right to not to be tortured or subjected to ill-treatment which form the very basis of the human existence, these are the Non-Derogable Rights. The paper shall be covering the rights that fall under the category of Non-Derogable Rights in detail and towards the end of the paper it shall also be answering the question whether the “Non-Derogable” can be done away with in special circumstances or not.

“To deny people their human rights is to challenge their very humanity.” – Nelson Mandela.

Introduction

Rights are an individual’s rational claim which is recognized by the society and backed by the written or unwritten rules. Non-Derogable rights are the rights which are so important that they cannot be reduced to nothing until and unless a competent authority decides against it with due procedure. These are the rights that are so essential to the very basic survival of the human being. Without them, the very existence of the human being is not possible and forms a fundamental part in the development of an individual. Human Rights have been recognized since 539 B.C and have now become obligatory with the coming of the United Nations and the International Covenant on Civil and Political Rights (ICCPR) which keeps a check on the state and imposes an obligation on the states to follow the rules and regulations to prevent violation of any of the rights mentioned in the ICCPR.

International Covenant on Civil and Political Rights

ICCPR was adopted by the United Nations General Assembly on 19^th December 1966 and came into force on 23^rd March 1976. The very purpose of the ICCPR is to protect the rights and dignity of the individual and aims to provide an environment alongside the states for the individuals to make the world a place where there is mutual respect for humans and their rights and that even a criminal is treated with some basic human respect. Countries that have ratified the covenant are obligated “to protect and preserve basic human rights… and compelled to take administrative, judicial, and legislative measures in order to protect the rights enshrined in the treaty and to provide an effective remedy[1].”

Articles 2 and 3 of the Covenant provide with a brief insight into the values and intent of the covenant and provide for that the rights shall be available to the men and women alike who of the states which has ratified the covenant.

Non-Derogable Rights under the ICCPR

Article 4

As explained in the Article 4 of the ICCPR, the state may have to take certain measures at times of emergency which threatens the people and the nation at large which may lead to derogation of the obligations and duties as propounded in the covenant. It does not allow making derogations which make it a violation of the International Law and are not discriminatory in nature on the ground of race, color, sex, religion, language or social origin. But the same time, while the covenant allows making some required derogations necessary during the times of an emergency, it clearly highlights the fact that no derogation whatsoever shall be made with respect to the certain rights which are very essential to the very survival of the human being. These Rights are:-

Right to Life (Article 6)

Every human irrespective of his/her caste, gender, religion or race has the inherent right to life. It states that no individual shall be deprived of his right to life except as provided under the domestic law along with giving due consideration to the articles in the present covenant. In cases where anyone has to be given a death penalty, sufficient opportunity shall be given to defend himself and further it shall be ensured that the right to seek pardon or commutation of the sentence is not taken away. Further, it states that the death sentence shall not be ordered for crimes committed by an individual who is below the age of eighteen years and pregnant woman. The article concludes by mentioning that the article should not become a hindrance in the process of abolition of capital punishment by any state.

Freedom from Torture (Article 7)

The basic aim of the provisions of Article 7 of the International Covenant on Civil and Political Rights is to protect the dignity and the physical and mental integrity of the individual[2]. The Article clearly lays out no one shall be subjected to torture or to treatment which is inhuman, cruel and degrading to the human dignity. The covenant does not mention what treatments shall fall under the category of torture, thus gives it wider power to cover acts which shall otherwise not come under the category of torture per se. Further, the Article also prevents that no one shall be subjected to medical or scientific experiments without the free consent of the individual. Special attention needs to be paid to these cases as often the individuals undergoing imprisonment are not capable enough to give their free consent and may consent to it without understanding the circumstances that they shall have to go through.

Right to not be Enslaved (Article 8)

Freedom is considered an important element for one’s growth. Bonded Labour and Slavery goes against the freedom and free will of the individual. The Article says that the states at all times shall ensure that the no one shall be asked to perform forced labour and only hard labour shall become part of the imprisonment as sanctioned by a competent court of law.

Right to Not be Imprisoned Merely on the Ground of Inability to Fulfill a Contractual Obligation (Article 11)

This Article prevents imprisonment for frivolous matters like not able to perform contractual liabilities under the contract and clearly makes segregation between the criminal and civil aspects. Even if an individual has made some default with respect to his/her contractual obligations, that does not grant enough evidence to sentence the person to jail.

Prohibition Against the Retrospective Operation of Criminal Laws (Article 15)

An Act which was not a criminal offence when committed shall not constitute a crime and the person shall not be held guilty. Further, heavier punishment shall not be awarded to an individual than the applicable punishment at the time the crime was committed and on the contrary if a lighter punishment has been approved for an offence, the convict shall be awarded the lighter punishment in the interest of equity, justice and good conscience. This follows a basic idea that considering the nature of the crime, the person shall be awarded lesser punishment if the law permits so.

Right to Recognition Before the Law (Article 16)

A man is innocent until proven guilty. Even an individual being charged for a heinous crime like murder is innocent until proven guilty. It is only after a competent court following due procedure holds that a person has committed crime, that the man is held guilty. But during the course of a trial, even a murderer has the right to be represented in court so that his side of the story can be heard too. In this way a person convicted of a crime is given an opportunity under the law and has an equal standing in the eyes of the law. Article 16 gives an identity to the person and sufficient rights and protects from threats of all kind. If not present, the state can itself misuse the rights given and can work according to its whims and fancies. Therefore, every person has the right to be recognised before the law so that state can perform its duty in the right spirit.

Freedom of Thought, Conscience and Religion (Article 18)

Article 18 gives each individual freedom of thought, conscience and religion. A person is free to follow, profess and practice any religion of his/her choice without any problem unless and until the practices of the religion hamper the other’s rights and basic humanitarian law. No person shall be forced or coerced to convert and follow a particular religion. The states shall ensure that the citizens are given the right opportunity and environment to practice and profess their religion and continue to preserve their culture and heritage.

Absolute Rights vs. Non-Derogable Rights

Non-Derogable can be either absolute or non-absolute. While absolute rights are something that cannot be suspended at all. Non-Derogable rights can be done with certain conditions with for which the threshold has been set high. For Example, Article 18 which deals with freedom of religion is a non-derogable right but at the same time it is subject to certain limitation under Article 18(3). Furthermore, Article 6 of the ICCPR which deals with the Right to Life states that it provides freedom from the deprivation of life which is arbitrary. The ICCPR shall come into play only if the deprivation of life has been without any reasonable cause and without due legal process by the concerned authority. There may be cases where the degree of the crime committed is such that the person shall be granted death sentence and the right to life can be taken away but with due legal process and well within the powers of the state.

Conclusion

When a person is born he comes with some inherent rights which ensure survival and growth and this is the main difference between us humans and animals. If we are not given these rights, the earth shall become a jungle where only might is right. Therefore the Non-Derogable Rights are very important in one’s life and safeguard the humans from a war like situation. It is difficult to imagine how life would be in a world where there is no Right to Life, where the man does not value another man and does not treat the other man with dignity and respect.

Frequently Asked Questions (FAQs)

What are Non-Derogable Rights?
Which all Rights are Non-Derogable Rights?
Where are Non-Derogable Rights explained?
How are Non-Derogable Rights different from Absolute Rights?
Can Non-Derogable Rights be compromised? If yes, How?

References

[1]UN General Assembly, International Covenant on Civil and Political Rights, United Nations Human Rights (Jul. 3, 2020, 05:35 PM), https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx.

[2]Human Rights Committee, Article 7, Office of the High Commissioner for Human Rights (Jul. 4, 2020, 08:20 PM), http://ccprcentre.org/page/view/general_comments/27786.