View Point (Spotlight Weekly)

New Dimensions Of Human Rights-II

By LALIT BAHADUR BASNET

Corruption attacks the fundamental values of human dignity and the political equality of the people and hence there is a pressing need to formulate a fundamental human right to corruption-free service. It has been argued that the struggle to promote human rights and the campaign against corruption share a great deal of common ground. A corrupt government that rejects both transparency and accountability is not likely to respect human rights. Therefore the campaign to contain corruption and the movement to protect and promote human rights are not disparate processes. The elimination of corruption and the strengthening of human rights require a strong integrity system (Laurance Cockcroft, TI working paper, 1998). The right† to a society free of corruption is inherently a basic human right because the right to life, dignity, equality and other important human rights and values depend significantly upon this right. It may be argued that the right to a corruption-free society originates and flows from the right of a people to exercise permanent sovereignty over their natural resources and wealth, that is, their right to economic self-determination. In this way, a corruption-free society is an inherent basic human right.

The most encouraging recent development in international law has been recognition of the responsibility of the state for its inaction which results in violation of human rights. The principle of state accountability was laid down by the Inter-American Court established under the American Convention of Human Rights in its judgment of July 21, 1989 in the Velsaquez Rodriguez case. The issue was about the state liability for the compensation for breach of its human rights obligation under the American convention. In that case the issue was whether the state of Honduras was liable to pay damages or compensation for the involuntary disappearance of Man Fredo Velasquez, The court ruled: "The state is obliged to investigate every situation involving a violation of the rights protected by the convention.

If the state apparatus acts in such away that the violation goes unpunished and the victim's full enjoyment of such right is not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights of the person within its jurisdiction." The court declared that it is a principle of international law that every violation of an international obligation which results in harm creates a duty to make adequate reparation and compensation is the usual way of doing so.

The Inter-American Court extended those principles of state responsibility to a case where the state allows private persons or groups to act freely and with impunity to the detriment of rights recognized by the convention. The emerging principle is that the state is responsible for human rights violation committed even by non-state actors residing within its jurisdiction. The European Court of Human Rights at Strasbourg recently held that authorities in the UK had violated the right of four children not to be ill-treated when it failed to take reasonable steps to prevent them from being horrifically abused over a four-year period by their parents.

In another case, the European court recognized that right to life may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The principle that human rights can also be violated by the inaction of the state has greatly contributed to the protection of human rights. Decisions of the Inter-American and European courts have to followed by other countries. These decision have contributed to protection of human rights very wisely and state should active to protect human rights.

The Nepalese constitution has also guaranteed fundamental rights. But these rights are basically negative (first generation) rights. The Nepalese constitution has ignored the social, cultural and economic rights to be recognized as fundamental rights. The Indian constitution has also guaranteed only political and civil rights. But the Indian Supreme Court has defined right to life under Article 21 of the Indian constitution in a broader sense. According to the court, life does not mean merely physical existence but comprehends right to live with dignity. Court have recognized that right to life includes health, education, pollution-free environment, safe drinking water and livelihood as right to life under Article 21 of the Indian constitution.

The human rights committee set up under the International Covenant of Civil and Political Rights also took the view that protection of the right to life requires that states should adopt positive measures. For example, it would be desirable for state parties take all possible steps to reduce infant mortality and to increase life expectancy, especially by adopting measures to eliminate malnutrition and epidemics. In the view of the committee, the production, testing, possessing, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity because of the grave threat to the right to life not only in the event of war but even through human or mechanical error or failure.

Nepal's Supreme Court has also recognized clean and pollution-free environment as a right to life in different cases. The judiciary has a vital role in promoting the directive principles of state policies as fundamental human rights, paving the way for parliament to amend the constitution thus giving constitutional legitimacy to judgments and solidifying the right development combination. The state, including the legislature, executive and judiciary, should read, interpret and integrate human rights and human development policies harmoniously.

The constitution of South Africa has in its Bill of Rights inter alia guaranteed the right to access to health care services, to adequate housing and to education. Recently, the African constitutional court has enforced the right to shelter of landless† people. This is a very positive step taken by the South African court to protect and promote human right.

Without human rights, prosperity, civilization and quest for justice will be meaningless. For human rights to flourish, human development is must. That is why integration of human rights and sustainable human development must remain central to the debate.

(Concluding part of the article by Mr. Basnet, a lawyer, published last week)