John Locke, Two Treatises of Government (1690)

CHAPTER. II. OF THE STATE OF NATURE.

Sect. 4. TO understand political power right, and derive it from its original, we must consider, what state all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.

A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty. …

Sect. 6. But though this be a state of liberty, yet it is not a state of licence: though man in that state have an uncontroulable liberty to dispose of his person or possessions, yet he has not liberty to destroy himself, or so much as any creature in his possession, but where some nobler use than its bare preservation calls for it. The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions: for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.

Sect. 7. And that all men may be restrained from invading others rights, and from doing hurt to one another, and the law of nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of nature is, in that state, put into every man's hands, whereby every one has a right to punish the transgressors of that law to such a degree, as may hinder its violation: for the law of nature would, as all other laws that concern men in this world 'be in vain, if there were no body that in the state of nature had a power to execute that law, and thereby preserve the innocent and restrain offenders. And if any one in the state of nature may punish another for any evil he has done, every one may do so: for in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do….

CHAPTER. VIII. OF THE BEGINNING OF POLITICAL SOCIETIES.

Sect. 95. MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.

CHAPTER. IX. OF THE ENDS OF POLITICAL SOCIETY AND GOVERNMENT.

Sect. 123. IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.

Sect. 124. The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting.

First, There wants an established, settled, known law, received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them: for though the law of nature be plain and intelligible to all rational creatures; yet men being biassed by their interest, as well as ignorant for want of study of it, are not apt to allow of it as a law binding to them in the application of it to their particular cases.

Sect. 125. Secondly, In the state of nature there wants a known and indifferent judge, with authority to determine all differences according to the established law: for every one in that state being both judge and executioner of the law of nature, men being partial to themselves, passion and revenge is very apt to carry them too far, and with too much heat, in their own cases; as well as negligence, and unconcernedness, to make them too remiss in other men's.

Sect. 126. Thirdly, In the state of nature there often wants power to back and support the sentence when right, and to give it due execution, They who by any injustice offended, will seldom fail, where they are able, by force to make good their injustice; such resistance many times makes the punishment dangerous, and frequently destructive, to those who attempt it.

Jeremy Bentham, Anarchical Fallacies (1796)

The Declaration of Rights -- I mean the paper published under that name by the French National Assembly in 1791 -- assumes for its subject-matter a field of disquisition as unbounded in point of extent as it is important in its nature. But the more ample the extent given to any proposition or string of propositions, the more difficult it is to keep the import of it confined without deviation, within the bounds of truth and reason. …

The great enemies of public peace are the selfish and dissocial passions.... Society is held together only by the sacrifices that men can be induced to make of the gratifications they demand: to obtain these sacrifices is the great difficulty, the great task of government. What has been the object, the perpetual and palpable object, of this Declaration of pretended rights? To add as much force as possible to these passions, already but too strong, -- to burst the cords that hold them in, -- to say to the selfish passions, there - everywhere -- is your prey! -- to the angry passions, there - everywhere -- is your enemy. ...

Article II

The end in view of every political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

Sentence 1. The end in view of every political association, is the preservation of the natural and imprescriptible rights of man.

More confusion -- more nonsense, -- and the nonsense, as usual, dangerous nonsense. The words can scarcely be said to have a meaning: but if they have, or rather if they had a meaning, these would be the propositions either asserted or implied: --

1. That there are such things as rights anterior to the establishment of governments: for natural, as applied to rights, if it mean anything, is meant to stand in opposition to legal -- to such rights as are acknowledged to owe their existence to government, and are consequently posterior in their date to the establishment of government.
2. That these rights can not be abrogated by government: for can not is implied in the form of the word imprescriptible, and the sense it wears when so applied, is the cut-throat sense above explained.
3. That the governments that exist derive their origin from formal associations or what are now called conventions: associations entered into by a partnership contract, with all the members for partners, -- entered into at a day prefixed, for a predetermined purpose, the formation of a new government where there was none before (for as to formal meetings holden under the controul of an existing government, they are evidently out of question here) in which it seems again to be implied in the way of inference, though a necessary and an unavoidable inference, that all governments (that is, self-called governments, knots of persons exercising the powers of government) that have had any other origin than an association of the above description, are illegal, that is, no governments at all; resistance to them and subversion of them, lawful and commendable; and so on.

Such are the notions implied in this first part of the article. How stands the truth of things? That there are no such things as natural rights -- no such things as rights anterior to the establishment of government -- no such things as natural rights opposed to, in contradistinction to, legal: that the expression is merely figurative; that when used, in the moment you attempt to give it a literal meaning it leads to error, and to that sort of error that leads to mischief -- to the extremity of mischief.

We know what it is for men to live without government -- and living without government, to live without rights: we know what it is for men to live without government, for we see instances of such a way of life -- we see it in many savage nations, or rather races of mankind; for instance, among the savages of New South Wales, whose way of living is so well known to us: no habit of obedience, and thence no government -- no government, and thence no laws -- no laws, and thence no such things as rights -- no security -- no property: --liberty, as against regular controul, the controul of laws and government --perfect; but as against all irregular controul, the mandates of stronger individuals, none. In this state, at a time earlier than the commencement of history -- in this same state, judging from analogy, we the inhabitants of the part of the globe we call Europe, were; -- no government, consequently no rights: no rights, consequently no property -- no legal security -- no legal liberty: security not more than belongs to beasts -- forecast and sense of insecurity keener -- consequently in point of happiness below the level of the brutal race.

In proportion to the want of happiness resulting from the want of rights, a reason exists for wishing that there were such things as rights. But reasons for wishing there were such things as rights, are not rights; -- a reason for wishing that a certain right were established, is not that right -- want is not supply -- hunger is not bread.

That which has no existence cannot be destroyed -- that which cannot be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonscnse, -- nonsense upon stilts. But this rhetorical nonsense ends in the old strain of mischievous nonsense for immediately a list of these pretended natural rights is given, and those are so expressed as to present to view legal rights. And of these rights, whatever they are, there is not, it seems, any one of which any government can, upon any occasion whatever, abrogate the smallest particle. …

From https://plato.stanford.edu/entries/rights-human/

This section attempts to explain the general idea of human rights by identifying four defining features. The goal is to answer the question of what human rights are with a description of the core concept rather than a list of specific rights. Two people can have the same general idea of human rights even though they disagree about which rights belong on a list of such rights and even about whether universal moral rights exist. The four-part explanation below attempts to cover all kinds of human rights including both moral and legal human rights and both old and new human rights (e.g., both Lockean natural rights and contemporary human rights). The explanation anticipates, however, that particular kinds of human rights will have additional features. Starting with this general concept does not commit us to treating all kinds of human rights in a single unified theory (see Buchanan 2013 for an argument that we should not attempt to theorize together universal moral rights and international legal human rights).

(1) Human rights are rights. Lest we miss the obvious, human rights are rights. Most if not all human rights are claim rights that impose duties or responsibilities on their addressees or dutybearers. Rights focus on a freedom, protection, status, or benefit for the rightholders (Beitz 2009). The duties associated with human rights often require actions involving respect, protection, facilitation, and provision. Rights are usually mandatory in the sense of imposing duties on their addressees, but some legal human rights seem to do little more than declare high-priority goals and assign responsibility for their progressive realization. One can argue, of course, that goal-like rights are not real rights, but it may be better to recognize that they comprise a weak but useful notion of a right (See Beitz 2009 for a defense of the view that not all human rights are rights in a strong sense. And see Feinberg 1973 for the idea of “manifesto rights”). A human rights norm might exist as (a) a shared norm of actual human moralities, (b) a justified moral norm supported by strong reasons, (c) a legal right at the national level (where it might be referred to as a “civil” or “constitutional” right), or (d) a legal right within international law. A human rights advocate might wish to see human rights exist in all four ways (See Section 2.1 How Can Human Rights Exist?).

(2) Human rights are plural. If someone accepted that there are human rights but held that there is only one of them, this might make sense if she meant that there is one abstract underlying right that generates a list of specific rights (See Dworkin 2011 for a view of this sort). But if this person meant that there is just one specific right such as the right to peaceful assembly this would be a highly revisionary view. Human rights address a variety of specific problems such as guaranteeing fair trials, ending slavery, ensuring the availability of education, and preventing genocide. Some philosophers advocate very short lists of human rights but nevertheless accept plurality (see Cohen 2004, Ignatieff 2004).

(3) Human rights are universal. All living humans—or perhaps all living persons—have human rights. One does not have to be a particular kind of person or a member of some specific nation or religion to have human rights. Included in the idea of universality is some conception of independent existence. People have human rights independently of whether they are found in the practices, morality, or law of their country or culture. This idea of universality needs several qualifications, however. First, some rights, such as the right to vote, are held only by adult citizens or residents and apply only to voting in one’s own country. Second, the human right to freedom of movement may be taken away temporarily from a person who is convicted of committing a serious crime. And third, some human rights treaties focus on the rights of vulnerable groups such as minorities, women, indigenous peoples, and children.

(4) Human rights have high-priority. Maurice Cranston held that human rights are matters of “paramount importance” and their violation “a grave affront to justice” (Cranston 1967). If human rights did not have high priority they would not have the ability to compete with other powerful considerations such as national stability and security, individual and national self-determination, and national and global prosperity. High priority does not mean, however, that human rights are absolute. As James Griffin says, human rights should be understood as “resistant to trade-offs, but not too resistant” (Griffin 2008). Further, there seems to be priority variation within human rights. For example, when the right to life conflicts with the right to privacy, the latter will generally be outweighed.

Let’s now consider five other features or functions that might be added.

Should human rights be defined as inalienable? Inalienability does not mean that rights are absolute or can never be overridden by other considerations. Rather it means that its holder cannot lose it temporarily or permanently by bad conduct or by voluntarily giving it up. It is doubtful that all human rights are inalienable in this sense. One who endorses both human rights and imprisonment as punishment for serious crimes must hold that people’s rights to freedom of movement can be forfeited temporarily or permanently by just convictions of serious crimes. Perhaps it is sufficient to say that human rights are very hard to lose. (For a stronger view of inalienability, see Donnelly 2003, Meyers 1985).

Should human rights be defined as minimal rights? A number of philosophers have proposed the view that human rights are minimal in the sense of not being too numerous (a few dozen rights rather than hundreds or thousands), and not being too demanding (See Joshua Cohen 2004, Ignatieff 2005, and Rawls 1999). Their views suggest that human rights are—or should be—more concerned with avoiding the worst than with achieving the best. Henry Shue suggests that human rights concern the “lower limits on tolerable human conduct” rather than “great aspirations and exalted ideals” (Shue 1996). When human rights are modest standards they leave most legal and policy matters open to democratic decision-making at the national and local levels. This allows human rights to have high priority, to accommodate a great deal of cultural and institutional variation among countries, and to leave open a large space for democratic decision-making at the national level. Still, there is no contradiction in the idea of an extremely expansive list of human rights and hence minimalism is not a defining feature of human rights (for criticism of the view that human rights are minimal standards see Brems 2009 and Raz 2010). Minimalism is best seen as a normative prescription for what international human rights should be. Moderate forms of minimalism have considerable appeal, but not as part of the definition of human rights.

Should human rights be defined as always being or “mirroring” moral rights? Philosophers coming to human rights theory from moral philosophy sometimes assume that human rights must be, at bottom, moral rather than legal rights. There is no contradiction, however, in people saying that they believe in human rights, but only when they are legal rights at the national or international levels. As Louis Henkin observed, “Political forces have mooted the principal philosophical objections, bridging the chasm between natural and positive law by converting natural human rights into positive legal rights” (Henkin 1978). Theorists who insist that the only human rights are legal rights may find, however, that the interpretations they can give of universality, independent existence, and high priority are weak.

Should human rights be defined in terms of serving some sort of political function? Instead of seeing human rights as grounded in some sort of independently existing moral reality, a theorist might see them as the norms of a highly useful political practice that humans have constructed or evolved. Such a view would see the idea of human rights as playing various political roles at the national and international levels and as serving thereby to protect urgent human and national interests. These political roles might include providing standards for international evaluations of how governments treat their people and specifying when use of economic sanctions or military intervention is permissible.

Political theorists would add to the four defining elements suggested above some set of political roles or functions. This kind of view may be plausible for the very salient international human rights that have emerged in international law and politics in the last fifty years. But human rights can exist and function in contexts not involving international scrutiny and intervention such as a world with only one state. Imagine, for example, that an asteroid strike had killed everyone in all countries except New Zealand, leaving it the only state in existence. Surely the idea of human rights as well as many dimensions of human rights practice could continue in New Zealand, even though there would be no international relations, law, or politics (for an argument of this sort see Tasioulas 2012). And if in the same scenario a few people were discovered to have survived in Iceland and were living without a government or state, New Zealanders would know that human rights governed how these people should be treated even though they were stateless. How deeply the idea of human rights must be rooted in international law and practice should not be settled by definitional fiat. We can allow, however, that the sorts of political functions that Rawls and Beitz describe are typically served by international human rights today.

From https://iep.utm.edu/hum-rts/#H3

The distinction drawn between moral rights and legal rights as two separate categories of rights is of fundamental importance to understanding the basis and potential application of human rights. Legal rights refer to all those rights found within existing legal codes. A legal right is a right that enjoys the recognition and protection of the law. Questions as to its existence can be resolved by simply locating the relevant legal instrument or piece of legislation. A legal right cannot be said to exist prior to its passing into law and the limits of its validity are set by the jurisdiction of the body which passed the relevant legislation. An example of a legal right would be my daughter’s legal right to receive an adequate education, as enshrined within the United Kingdom’s Education Act (1944). Suffice it to say, that the exercise of this right is limited to the United Kingdom. My daughter has no legal right to receive an adequate education from a school board in Southern California. Legal positivists argue that the only rights that can be said to legitimately exist are legal rights, rights that originate within a legal system. On this view, moral rights are not rights in the strict sense, but are better thought of as moral claims, which may or may not eventually be assimilated within national or international law. For a legal positivist, such as the 19th. Century legal philosopher Jeremy Bentham, there can be no such thing as human rights existing prior to, or independently from legal codification. For a positivist determining the existence of rights is no more complicated than locating the relevant legal statute or precedent. In stark contrast, moral rights are rights that, it is claimed, exist prior to and independently from their legal counterparts. The existence and validity of a moral right is not deemed to be dependent upon the actions of jurists and legislators. Many people argued, for example, that the black majority in apartheid South Africa possessed a moral right to full political participation in that country’s political system, even though there existed no such legal right. What is interesting is that many people framed their opposition to apartheid in rights terms. What many found so morally repugnant about apartheid South Africa was precisely its denial of numerous fundamental moral rights, including the rights not to be discriminated against on grounds of colour and rights to political participation, to the majority of that country’s inhabitants. This particular line of opposition and protest could only be pursued because of a belief in the existence and validity of moral rights. A belief that fundamental rights which may or may not have received legal recognition elsewhere, remained utterly valid and morally compelling even, and perhaps especially, in those countries whose legal systems had not recognized these rights. A rights-based opposition to apartheid South Africa could not have been initiated and maintained by appeal to legal rights, for obvious reasons. No one could legitimately argue that the legal political rights of non-white South Africans were being violated under apartheid, since no such legal rights existed. The systematic denial of such rights did, however, constitute a gross violation of those peoples’ fundamental moral rights.

From the above example it should be clear that human rights cannot be reduced to, or exclusively identified with legal rights. The legal positivist’s account of justified law excludes the possibility of condemning such systems as apartheid from a rights perspective. It might, therefore, appear tempting to draw the conclusion that human rights are best identified as moral rights. After all, the existence of the UDHR and various International Covenants, to which South Africa was not a signatory in most cases, provided opponents of apartheid with a powerful moral argument. Apartheid was founded upon the denial of fundamental human rights. Human rights certainly share an essential quality of moral rights, namely, that their valid existence is not deemed to be conditional upon their being legally recognized. Human rights are meant to apply to all human beings everywhere, regardless of whether they have received legal recognition by all countries everywhere. Clearly, there remain numerous countries that wholly or partially exclude formal legal recognition to fundamental human rights. Supporters of human rights in these countries insist that the rights remain valid regardless, as fundamental moral rights. The universality of human rights positively entails such claims. The universality of human rights as moral rights clearly lends greater moral force to human rights. However, for their part, legal rights are not subject to disputes as to their existence and validity in quite the way moral rights are. It would be a mistake to exclusively identify human rights with moral rights. Human rights are better thought of as both moral rights and legal rights. Human rights originate as moral rights and their legitimacy is necessarily dependent upon the legitimacy of the concept of moral rights. A principal aim of advocates of human rights is for these rights to receive universal legal recognition. This was, after all, a fundamental goal of the opponents of apartheid. Human rights are best thought of, therefore, as being both moral and legal rights. The legitimacy claims of human rights are tied to their status as moral rights. The practical efficacy of human rights is, however, largely dependent upon their developing into legal rights. In those cases where specific human rights do not enjoy legal recognition, such as in the example of apartheid above, moral rights must be prioritised with the intention that defending the moral claims of such rights as a necessary prerequisite for the eventual legal recognition of the rights in question.

"Rights focus on a freedom, protection, status, immunity, or benefit for the rightholders. Most human rights are claim rights that impose duties or responsibilities on their addressees or dutybearers. The duties associated with human rights often require actions involving respect, protection, facilitation, and provision. Although human rights are usually mandatory in the sense of imposing duties on specified parties, some legal human rights seem to do little more than declare high-priority goals and assign responsibility for their progressive realization."  - The General Idea of Human Rights

"Absolute duties. The term "absolute" when applied to duties is sometimes given a meaning different from any that is given it when applied to rights. It is sometimes said that while a right never exists without its correlative duty, certain duties can exist without any correlative rights1 7 a Such duties are said to be "absolute," not meaning that such duties are not relations with other persons, but meaning that such other persons do not have rights that are correlative to the duties. Examples given are the duty to abstain from cruelty to animals or from certain acts of immorality, and duties to a child yet unborn. It is believed that this distinction is unsound and that such use of the term "absolute" is unfortunate. The matter is of practical importance, chiefly because if there is inconsistency of language in this matter there is also an unclear concept behind the term.

The concept behind the term "duty" seems to be that societal pressure is put upon B to induce certain conduct by him-that the agents of an organized society will act to B's disadvantage if he does not conduct himself as desired. This societal action is taken-that is, "duties" are created-for the protection and satisfaction of human interests and desires. The rules determining the action of the officials of society are designed for this purpose. It appears, therefore, that it would be possible in all cases to point out some human interest to be protected. Such an interest is an interest of men. It may be the interest or desire of one specified man alone, or of several specified men, or of some class of unspecified men, or of all men generally. In any of these cases there may be more or less difficulty in identifying the man or men in question; but in the last case where they are the most numerous it would seem that there is the least difficulty. These men with the factual interests to be protected are the men with the "rights." In the case of a "duty to the state" or "to society," the "interest" includes the common interests of all. Each member has his interest and that interest is protected. If that is what we mean by "right," then each has a "right." It is merely a case where many persons have rights against one and the one has a duty to each of the many. Like many other "obligations" to joint or joint and several obligees, the obligor's duty to each can be satisfied and extinguished by a single performance.

... It must be constantly remembered that in speaking of "rights" and "duties" we are not dealing with physical objects. We are merely stating that somebody's interests will be promoted by legal coercion of another person and that such coercion by societal action is obtainable. It is quite possible to define "right" so as to require the interest to be that of one specific person exclusively, and at the same time to define "duty" so as to include cases where the interests are those of many unspecified individuals. By such a definitional process, some duties can be made to appear "absolute"—not correlative to rights; but there will nevertheless in every instance be human individuals whose interests are being promoted by the societal coercion of the duty-bearer." Rights and Duties

"The object of the virtue of justice, and of acts of justice, is rights-in the central sense of that English term, the sense in which its correlative is duties, that is, duties of justice resulting from the directives of natural and, where pertinent, just positive law. ... The true correlative of A's duty to B is B's right. The true correlative of a one person's duty is another person's right, and vice versa. Justice always concerns what I owe to another—what that other has the right to, from, or as against me. ...

In short, the modern vocabulary and grammar of rights is a many-faceted instrument for reporting and asserting the requirements or other implications of a relationship of justice from the point of view of the person(s) who benefit(s) from that relationship. It provides a way of talking about "what is just" from a special angle: the viewpoint of the "other(s)" to whom something is owed or due, and who would be wronged if denied that something. ... Still less is it appropriate to argue that "as a matter of juristic logic" duty is logically prior to right (or vice versa). But when we come to explain the requirements of justice, which we do by referring to the needs of the common good at its various levels, then we find that there is reason for treating the concept of duty, obligation, or requirement as having a more strategic explanatory role than the concept of rights. The concept of rights is not on that account of less importance or dignity: for the common good is precisely the good of the individuals whose benefit, from fulfilment of duty by others, is their right because required in justice of those others. ...

In Aquinas' understanding of justice, rights are as fundamental as duties, and duties as fundamental as rights. We have duties which are not duties of justice, so duty is the wider concept. But when a duty is to another human person, it is a duty of justice, and that other person's right is its very object or point." - John Finnis, Grounding Human Rights in Natural Law

Preamble

            All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers one to another.

            The fulfillment of duty by each individual is a prerequisite to the rights of all.  Rights and duties are interrelated in every social and political activity of man.  While rights exalt individual liberty, duties express the dignity of that liberty.

            Duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis.

            Inasmuch as spiritual development is the supreme end of human existence and the highest expression thereof, it is the duty of man to serve that end with all his strength and resources.

            Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power.

            And, since moral conduct constitutes the noblest flowering of culture, it is the duty of every man always to hold it in high respect. 

 CHAPTER TWO

Duties

PREAMBLE

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1.

All human beings are born free and equal in dignity and rights.They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2.

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3.

Everyone has the right to life, liberty and security of person.

Article 4.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6.

Everyone has the right to recognition everywhere as a person before the law.

Article 7.

All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9.

No one shall be subjected to arbitrary arrest, detention or exile.

Article 10.

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11.

(1) 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.
(2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Article 12.

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13.

(1) Everyone has the right to freedom of movement and residence within the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to his country.

Article 14.

(1) Everyone has the right to seek and to enjoy in other countries asylum from persecution.
(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.

Article 15.

(1) Everyone has the right to a nationality.
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

Article 16.

(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Article 17.

(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property.

Article 18.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19.

Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20.

(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 22.

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23.

(1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.

Article 24.

Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25.

(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
(2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.

Article 26.

(1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.

Article 27.

(1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

Article 28.

Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29.

(1) Everyone has duties to the community in which alone the free and full development of his personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

Article 30.

Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Article 6 (1): Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

Communication No. 45/1979

Submitted by: Pedro Pablo Camargo on 5 February 1979 on Behalf of the Husband of
Maria Fanny Suarez de Guerrero
Alleged Victim: Maria Fanny Suarez de Guerrero
State Party: Colombia
Date of adoption of views: 31 March 1982

1.1 The communication was submitted by Pedro Pablo Camargo, Professor of International Law of the National University of Colombia, at present residing in Quito, Ecuador. He submitted the communication on behalf of the husband of Maria Fanny Suarez de Guerrero.

1.2 The author of the communication describes the relevant facts as follows: on 13 April 1978, the judge of the 77th Military Criminal Court of Investigation, himself a member of the police, ordered a raid to be carried out at the house at No. 136-67 Transversal 31 in the "Contador" district of Bogota. The order for the raid was issued to Major Carlos Julio Castano Rozo, the SIPEC Chief of the F-2 Police, Bogota Police Department. The raid was ordered in the belief that Miguel de German Ribon, former Ambassador of Colombia to France, who had been kidnapped some days earlier by a guerrilla organization, was being held prisoner in the house in question. Those taking part in the raid were Captains Jaime Patarroyo Barbosa and Jorge Noel Barrero Rodriguez; Lieutenants Alvaro Mendoza Contreras and Manuel Antonio Bravo Sarmiento; Corporal First Class Arturo Martin Moreno; Constables Joel de Jesus Alarcon Toro, Joaquin Leyton Dominguez, Efrain Morales Cardenas, Gustavo Ospina Rios and Jaime Quiroga, and a driver, Jose de log Santos Baquero. In spite of the fact that Miguel de German Ribon was not found, the police patrol decided to hide in the house to await the arrival of the "suspected kidnappers". They were killed as they arrived. In this way, seven innocent human beings were shot dead: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo.
Although the police stated initially that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine (Report No. 8683, of 17 April 1978), together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at point-blank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Sudrez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack.

1.3 The author adds that, according to witnesses, the victims were not given the opportunity to surrender. He mentions that the police stated that they were dealing with persons with criminal records but that subsequent investigation by the police did not prove that the victims were kidnappers.

1.4 The author alleges that seven persons—including Maria Fanny Sudrez de Guerrero—were arbitrarily killed by the police, that the police action was unjustified and that it has been inadequately investigated by the Colombian authorities. He claims that, at the beginning, the case was shelved under Legislative Decree 0070 of January 1978 because the Colombian authorities considered that the police had acted within the powers granted by that Decree. He further alleges that there have been other cases of arbitrary killings by the army and the police on the pretext that they were dealing with suspicious people and that it has later been proved that the victims were either innocent or persecuted for political reasons.

1.5 Legislative Decree No. 0070 introducing measures for the "restoration of public order" amended article 25 of the Colombian Penal Code by adding a new paragraph 4. The substantive part of the Decree reads as follows:

Article 1. For so long as public order remains disturbed and the national territory is in a state of siege, article 25 of the Penal Code shall read as follows:

Article 25. The [penal] act is justified if committed:

... (4) By the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs.

1.6 The author states that Legislative Decree No. 0070 of 1978 has established a new ground of defence against a criminal charge so as to justify crimes committed by members of the police force when they are taking part in operations to repress certain types of offences. In other words, the otherwise penal act is justified and does not give rise to penal responsibility when it is committed by members of the police force. He further argues that, if public authorities are allowed to kill an individual because he is suspected of having committed certain types of offences specified in Decree No. 0070, it means that they are allowed to commit arbitrary acts and, by doing so, to violate fundamental human rights, in particular the most fundamental one of all-the right to life. The author claims that Decree No. 0070 of 1978 violates articles 6, 7, 9 and 14 and 17 of the International Covenant on Civil and Political Rights because public authorities are allowed to violate the fundamental guarantees of security of person, of privacy, home and correspondence, individual liberty and integrity, and due process of law, in order to prevent and punish certain types of offences.

1.7 The author states that domestic remedies to declare Decree No. 0070 unconstitutional have been exhausted, since there is a decision of the Supreme Court of Colombia of 9 March 1980 upholding the Decree's constitutionality.

1.8 The author states that the case has not been submitted to any other procedure of international investigation or settlement.

2. On 9 August 1979, the Human Rights Committee decided to transmit the communications to the State party, under rule 91 of the provisional rules of procedure, requesting information and observations relevant to the question of admissibility.

3.1 By letter dated 5 May 1980, the State party refuted the allegations made by the author of the communication that the enactment of Legislative Decree No. 00'70 of 20 January 1978 constitutes a breach of articles 6, 7, 9, 14 and 17 of the Covenant.

3.2 The State party submitted that it cannot reasonably be claimed that this Decree establishes the death penalty or empowers the police to practise torture or cruel, inhuman or degrading treatment or that it infringes the rights or guarantees established by articles 9, 14 and 17 of the Covenant. It cited the ruling on the scope of the Decree given by the Supreme Court of Justice in its judgement of 9 March 1978, by which it held the Decree constitutional. The Court said in particular:

... as can be seen, the Decree, in article 1, paragraph 2 (4), introduces a temporary addition to the current text of article 25 of the Penal Code, for the purpose of creating a new defence to a criminal charge; the Decree provides that it is a good defence in answer to such a charge to show that the punishable act was "committed ... by the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping and the production and processing of and trafficking in narcotic drugs". This amendment contemplates a legal situation different from those referred to in the first three subparagraphs of article 25, which formerly constituted the entire article and hence has special characteristics.

* See the text of Legislative Decree No. 0070 in the appendix below.

The sense in which the provision in question creates a different legal situation is that it does not deal with a case of obedience to mandatory order given by a competent authority, nor with self-defence, nor with a state of necessity affecting an individual. The provision introduced by Decree No. 70 concerns another class of circumstances to justify action taken by the police with the object of preventing or curbing the offences of extortion, kidnapping and the production and processing of and trafficking in narcotic drugs.

On the one hand, the provision is broad in scope in that it does not limit the means of action, for under the provision both armed force and other means of coercion, persuasion of dissuasion may be used.

On the other hand, however, the provision limits the field of action to the objectives referred to therein, namely, preventing and curbing the offences of kidnapping, extortion and the production and processing of and trafficking in narcotic drugs ...

The Court observed that the Decree was obviously related to the fact that the national territory was in a state of siege and it further stated:

... this is a special measure that involves a right of social defence; for, on the one hand, it is legitimate that the members of the armed forces who are obliged to take part in operations like those described and whose purpose it is to prevent or curb offences which, by their nature, are violent and are committed by means of violence against persons or property, should be protected by a justification of the punishable acts that they are constrained to commit, and, on the other hand, both the Government, acting on behalf of society, and society itself, have an interest in the defence of society and in ensuring that it is adequately defended by the agencies to which the law has entrusted the weapons for its defence.

3.4 With regard to the specific incident involving the death of Maria Fanny Suarez de Guerrero, the State party stated that: (a) in the course of a police operation on 13 April 1978 in the "Contador" district of Bogota the following persons died in the house at 136-67 Thirtyfirst Street: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo; (b) the Office of the State Counsel for the national police instituted an administrative inquiry into the case and the judge of the 77th Criminal Military Court was ordered to hold a criminal investigation; (c) as a result of the criminal investigation, police captains Alvaro Mendoza Contreras and Jorge Noel Barrero Rodriguez, police lieutenant Manuel Bravo Sarmiento and officers Jesus Alarcon, Gustavo Ospina, Joaquin Dominguez, Arturo Moreno, Efrain Morales and Jose Sanchez were concerned in the criminal proceedings; (d) the trial had not yet been completed. Consequently, the State party submitted, domestic remedies of the local jurisdiction had not yet been exhausted.

4.1 In his comments dated 2 June 1980, the author stated that "the new ground included in Decree No. 0070 of 1978 does indeed establish `a statutory presumption of justification of the act', because it is left to the police authorities themselves to determine what is justified, through the so-called `military criminal judges' and the Higher Military Court, even if the victim or victims are civilians. Up to now all extrajudicial deaths caused by the police force have been justified by the police force itself, without any intervention of the ordinary courts".

4.2 As regards the events which took place in the "Contador" district of Bogota on 13 April 1978, the author maintained that it was the police themselves who entrusted the criminal investigation to the judge of the 77th Military Criminal Court and he, after more than two years, had not summoned those involved to appear in court: "There is no question of genuine criminal proceedings for, contrary to the principle that no one may be judge in his own cause, it is the police who have carried out the investigation with respect to themselves, and the military criminal procedure does not permit the civilian victims to be represented. Ordinary criminal procedure provides both for a criminal action and for a civil action for damages." The author further maintained that the Government of Colombia had not permitted the institution of civil proceedings on behalf of the victims in the military criminal case against the accused and he claimed that the application of domestic remedies was unreasonably prolonged.

5. On 25 July 1980 the Human Rights Committee decided to request the State party to furnish detailed information as to:

(a) How, if at all, the state of siege proclaimed in Colombia affected the present case;

(b) Whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation on 13 April 1978 in the "Contador" district of Bogota, and, if not, the reasons for any refusal to permit such proceedings;

(c) The reasons for the delay, for more than two years, in the adjudication of the Higher Military Court in the matter.

6.1 By letters dated 9 September and 1 October 1980 the State party submitted further information.

6.2 The State party maintained that the state of siege might affect this case if the following conditions were met:

(a) If those responsible for the violent death of various persons in the "Contador" district police operation invoke in justification of the act the new ground provided in Decree 0070 of 1978 promulgated in exercise of the powers conferred by article 121 of the National Constitution;

(b) If the Military Tribunal (Oral Proceedings) which is to try those responsible for the acts in question agrees that the ground mentioned is applicable thereto. If it should consider that the ground is not applicable, no effect would derive from the state of siege. Only when the decision of the Military Tribunal is delivered will it be possible to establish whether, by virtue of Decree 0070 of 1978, the state of siege does in fact affect this case.

6.3 As regards the question whether the institution of civil proceedings for damages had been permitted on behalf of the victims of the police operation, the State party affirmed that the institution of a civil action in conjunction with military proceedings was restricted to proceedings dealing with ordinary offences and that, since the present case was a military offence, no civil action could be instituted in conjunction with the military proceedings. Military offences are "those covered by the Code of Military Criminal Justice, committed by soldiers on active service and in relation to their service". However, the State party submitted that persons who have suffered loss or injury may apply to an administrative tribunal to obtain the appropriate damages on the ground of the extracontractual responsibility of the State. Such a claim may be made independently of the outcome of the criminal trial and even if it has not begun or been concluded. This is because the State must bear responsibility for the abuses and negligence of its agents when they unjustifiably result in damage. Thus the institution of a civil action in conjunction with military criminal proceedings is completely unimportant for this purpose, since another remedy is available to those suffering loss or injury. In addition, the State party explained that the Code of Military Criminal Justice contains the following provisions on compensation:

Article 76. On any conviction for offences that result in loss or injury to any person, either natural or legal, those responsible shall be jointly sentenced to compensate for all such damage as has been caused.

6.4 As regards the reasons for the delay, for more than two years, in the adjudication of the Higher Military Court in the matter, the State party submitted that this was due to the heavy workload of all the judges and prosecutors. The Office of the State Counsel for the National Police, which is responsible for exercising judicial supervision over the system of military criminal justice with regard to proceedings against national police personnel through general and special inspections, found that the delay in handling the case concerning the events in the "Contador" district was justified, since it was due to the heavy workload and not to negligence, it having been established that the judges produce a high monthly average of decisions.

6.5 As regards the administrative inquiry instituted by the Office of the State Counsel for the national police into the incident in the "Contador" district, the State party in its letter of 1 October 1980 informed the Committee that this had been completed. The Office of the State Counsel had requested the dismissal of all the members of the patrol involved in the operation. This dismissal was ordered on 16 June 1980 and had been carried out.

6.6 Nevertheless, the State party reiterated that domestic remedies had not been exhausted.

7.1 In further letters dated 3 and 31 October 1980 the author submitted the following additional information: "... the investigation into the massacre on 13 April 1978 was conducted by the very police officer who had led the raid, namely Captain Carlos Julio Castano Rozo, the SIPEC Chief of the Bogota Police Department". He further stated in July 1980, the Inspector General of Police, General Fabio Arturo Londono Cardenas, acting as judge of first instance, issued an order for all criminal proceedings against those charged with the massacre to be discontinued, on the basis of article 417 of the Code of Military Criminal Justice, which states:

Article 417. If, at any stage of the proceedings, it becomes fully established that the act for which charges have been laid or which is under investigation did not take place, or that it was not committed by the accused, or that the law does not consider it a criminal offence, or that there were no grounds for instituting or continuing the criminal proceedings, the judge of first instance or the investigating official shall, with the approval of the Public Prosecutor's department, issue an official ruling to that effect and shall order all proceedings against the accused to be discontinued. The author alleged that the Inspector General of Police invoked the ground of justification of the criminal act provided for in article 1 of Decree No. 0070. This ruling went to the Higher Military Court for ex officio review. The Higher Military Court, through its Fourth Chamber, annulled the decision of the Inspector General of Police. The dossier then remained in the hands of the judge of first instance and the author stated that up to the date of his letter (3 October 1980) no order had been issued convening a military court to try the accused(Consejo de Guerra Verbal).

7.2 However, in his letter of 2 January 1981, the author informed the Committee that on 30 December 1980 a military court acquitted the 11 members of the Police Department. He stated that Dr. Martinez Zapata, the lawyer for the "Contador" victims, was not allowed to attend the trial, submit appeals or make objections. He affirmed that the acquittal was based on Decree Law No. 0070 of 1978.

7.3 The author further stated that as a result of the acquittal no administrative suit for compensation could be filed and the police officers and agents, who were dismissed on the recommendation of the Deputy Procurator General for Police Affairs, would be reinstated in their functions. The author had earlier stated:

... in principle, an action for compensation may be brought before an administrative tribunal. However, if the accused are acquitted and the State turns out not to be responsible, how could such an action be brought before an administrative tribunal? It is quite clear, moreover, that the lawyers for the victims are not simply seeking compensation; above all they want justice to be done and a declaration that Legislative Decree No. 0070 of 1978 is manifestly a breach of articles 6, 7, 14 and 17 of the International Covenant on Civil and Political Rights.

7.4 The author claimed that this was a serious case of a denial of justice which definitively confirmed that murders of civilians by the police would go unpunished.

8.1 The Committee found, on the basis of the information before it, that it was not precluded by article 5 (2) (a) of the Optional Protocol from considering the communication since there was no indication that the same matter had been submitted under another procedure of international investigation or settlement.

8.2 As to the question of exhaustion of domestic remedies, the Committee, having been informed by the author of the communication that on 30 December 1980 the military tribunal acquitted the 11 members of the Police Department who were on trial and this information not having been refuted by the State party, understood that the military tribunal found the measures taken by the police which resulted in the death of Maria Fanny Suarez de Guerrero to have been justified. It appeared from the information before the Committee that there was no further possibility of an effective domestic remedy in regard to the matters complained of. The Committee was therefore unable to conclude on the basis of the information submitted by the State party and the author, that there were still effective remedies available which could be invoked on behalf of the alleged victim. Accordingly the Committee found that the communication was not inadmissible under article 5 (2) (b) of the Optional Protocol. The Committee stated, however, that this decision could be reviewed in the light of any further explanations which the State party might submit under article 4 (2) of the Optional Protocol.

9. On 9 April 1981, the Human Rights Committee therefore decided: 

(a) That the communication was admissible;

(b) That, in accordance with article 4 (2) of the Optional Protocol, the State party be requested to submit to the Committee, within six months of the date of the transmittal to it of this decision, written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by it. These should include a copy of the judgement of the military tribunal acquitting the members of the Police Department who were on trial.

10. The time-limit for the State party's submission under article 4 (2) of the Optional Protocol expired on 26 November 1981. To date, no submission has been received from the State party in addition to those received prior to the decisions on admissibility.

11.1 The Human Rights Committee had considered the present communication in the light of all information made available to it by the parties, as provided in article 5 (1) of the Optional Protocol. The Committee bases its views on the following facts, which are not in dispute or which are unrefuted by the State party.

11.2 Legislative Decree No. 0070 of 20 January 1978 amended article 25 of the Penal Code "for so long as the public order remains disturbed and the national territory is in a state of siege" (see text of Decree in appendix below). The Decree established a new ground of defence that may be pleaded by members of the police force to exonerate them if an otherwise punishable act was committed "in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs".

11.3 On 13 April 1978, the judge of the 77th Military Criminal Court of Investigation, himself a member of the police, ordered a raid to be carried out at the house at No. 136-67 Transversal 31 in the "Contador" district of Bogota. The order for the raid was issued to Major Carlos Julios Castano Rozo, the SIPEC Chief of the F-2 Police, Bogota Police Department. The raid was ordered in the belief that Miguel de German Ribon, former Ambassador of Colombia to France, who had been kidnapped some days earlier by a guerrilla organization, was being held prisoner in the house in question.

11.4 In spite of the fact that Miguel de German Ribon was not found, the police patrol decided to hide in the house to await the arrival of the "suspected kidnappers". Seven persons who subsequently entered the house were shot by the police and died. These persons were: Maria Fanny Suarez de Guerrero, Alvaro Enrique Vallejo, Eduardo Sabino Lloredo, Blanca Florez Vanegas, Juan Bautista Ortiz Ruiz, Omar Florez and Jorge Enrique Salcedo.

11.5 Although the police initially stated that the victims had died while resisting arrest, brandishing and even firing various weapons, the report of the Institute of Forensic Medicine (Report No. 8683, of 17 April 1978), together with the ballistics reports and the results of the paraffin test, showed that none of the victims had fired a shot and that they had all been killed at pointblank range, some of them shot in the back or in the head. It was also established that the victims were not all killed at the same time, but at intervals, as they arrived at the house, and that most of them had been shot while trying to save themselves from the unexpected attack. In the case of Mrs. Maria Fanny Sudrez de Guerrero, the forensic report showed that she had been shot several times after she already died from a heart attack.

11.6 The Office of the State Counsel for the national police instituted an administrative inquiry into the case. The administrative inquiry was completed and the Office of the State Counsel for the national police requested the dismissal of all the members of the patrol involved in the operation. This dismissal was ordered on 16 June 1980.

11.7 In addition, the judge of the 77th Military Criminal Court was ordered to hold a criminal investigation into the case. The preliminary investigation of the case was conducted by Major Carlos Julio Castano Rozo. This investigation did not prove that the victims of the police action were kidnappers. In July 1980, the Inspector General of Police, acting as judge of first instance, issued an order for all criminal proceedings against those charged with the violent death of these seven persons during the police operation on 13 April 1978 in the "Contador" district of Bogota to be discontinued. This order was grounded on article 1 of Decree No. 0070. A Higher Military Court as a result of an ex officio review, annulled the decision of the Inspector General of Police. On 31 December 1980 a military tribunal (Consejo de Guerra Verbal), to which the case had been referred for retrial, again acquitted the 11 members of the Police Department who had been involved in the police operation. The acquittal was again based on Decree No. 0070 of 1978.

11.8 At no moment could a civil action for damages be instituted in conjunction with the military criminal proceedings. An action for compensation for the persons injured by the police operation in the "Contador" district depended first on determining the criminal liability of the accused. The accused having been acquitted, no civil or administrative suit could be filed to obtain compensation.

12.1 In formulating its views, the Human Rights Committee also takes into account the following considerations:

12.2 The Committee notes that Decree No. 0070 of 1978 refers to a situation of disturbed public order in Colombia. The Committee also notes that the Government of Colombia in its note of 18 July 1980 to the Secretary-General of the United Nation, which was designed to comply with the formal requirements laid down in article 4 (3) of the Covenant, made reference to the existence of a state of siege in all the national territory since 1976 and to the necessity to adopt extraordinary measures within the framework of the legal regime provided for in the National Constitution for such situations. With regard to the rights guaranteed by the Covenant, the Government of Colombia declared that "temporary measures have been adopted that have the effect of limiting the application of article 19, paragraph 2, and article 21 of that Covenant". The Committee observes that the present case is not concerned with article 19 and 21 of the Covenant. It further observes that according to article 4 (2) of the Covenant there are several rights recognized by the Covenant which cannot be derogated from by a State party. These include articles 6 and 7 which have been invoked in the present case.

13.1 Article 6 (1) of the Covenant provides:

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

The right enshrined in this article is the supreme right of the human being. It follows that the deprivation of life by the authorities of the State is a matter of the utmost gravity. This follows from the article as a whole and in particular is the reason why paragraph 2 of the article lays down that the death penalty may be imposed only for the most serious crimes. The requirements that the right shall be protected by law and that no one shall be arbitrarily deprived of his life mean that the law must strictly control and limit the circumstances in which a person may be deprived of his life by the authorities of a State.

13.2 In the present case it is evident from the fact that seven persons lost their lives as a result of the deliberate action of the police that the deprivation of life was intentional. Moreover, the police action was apparently taken without warning to the victims and without giving them any opportunity to surrender to the police patrol or to offer any explanation of their presence or intentions. There is no evidence that the action of the police was necessary in their own defence or that of others, or that it was necessary to effect the arrest or prevent the escape of the persons concerned. Moreover, the victims were no more than suspects of the kidnapping which had occurred some days earlier and their killing by the police deprived them of all the protections of due process of law laid down by the Covenant. In the case of Mrs. Maria Fanny Suarez de Guerrero, the forensic report showed that she had been shot several times after she had already died from a heart attack. There can be no reasonable doubt that her death was caused by the police patrol.

13.3 For these reasons it is the Committee's view that the action of the police resulting in the death of Mrs. Maria Fanny Suarez de Guerrero was disproportionate to the requirements of law enforcement in the circumstances of the case and that she was arbitrarily deprived of her life contrary to article 6 (1) of the International Covenant on Civil and Political Rights. Inasmuch as the police action was made justifiable as a matter of Colombian law by Legislative Decree No. 0070, the right to life was not adequately protected by the law of Colombia as required by article 6 (1).

14. It is not necessary to consider further alleged violations, arising from the same facts, of other articles of the Covenant. Any such violations are subsumed under the even more serious violations of article 6.

15. The Committee is accordingly of the view that the State party should take the necessary measures to compensate the husband of Mrs. Maria Fanny Suarez de Guerrero for the death of his wife and to ensure that the right to life is duly protected by amending the law.

APPENDIX

Decree No. 0070 of 20 January 1978

introducing measures for the restoration of public order

The President of the Republic of Colombia in the exercise of the authority vested in him by article 121 of the National Constitution, and

Considering:

That, by Decree No. 2131 of 1976, the public order was declared to be disturbed and a state of siege was proclaimed throughout the national territory;

That the disturbance of the public order has increased with the intensification of organized crime, particularly as a result of the commission of offences against individual freedom, against the life and integrity of the person and against the health and integrity of society;

That it is the duty of the Government to take whatever measures are conducive to the restoration of a normal situation;

DECREES:

Article 1. For so long as the public order remains disturbed and the national territory is in a state of siege, article 25 of the Penal Code shall read as follows:

"Article 25. The act is justified if committed:
"(1) Pursuant to a legislative provision or to a mandatory order given by a competent authority;

"(2) By a person who is constrained to defend himself or another against a direct or wrongful act of violence against the person, his honour or his property, provided that the defence is proportionate to the attack;

"The circumstances referred to in this subparagraph are presumed to exist in any case where a person during the night repels any person who climbs or forcibly enters the enclosure, walls, doors or windows of his dwelling or outbuildings, whatever the harm done to the attacker, or where a person finds a stranger in his dwelling, provided that in the latter case there is no justification for the stranger's presence in the premises and that the stranger offers resistance;

"(3) By a person who has to save himself or another from a serious and imminent danger to the person which cannot be avoided in any other way, which is not the result of his own action and to which he is not exposed in the course of the exercise of his profession or occupation;

"(4) By the members of the police force in the course of operations planned with the object of preventing and curbing the offences of extortion and kidnapping, and the production and processing of and trafficking in narcotic drugs".

Article 2. This decree shall enter into force on the date of its enactment and shall suspend any provisions inconsistent therewith.

For transmittal and enforcement.

Done in Bogota, D.E., on 20 January 1978.

VIEWS OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 5,

PARAGRAPH 4 OF THE OPTIONAL PROTOCOL TO THE ICCPR

concerning

Communication No. 763/1997

Submitted by:                         Ms. Yekaterina Pavlovna Lantsova

Alleged victim:                        The author’s son Mr. Vladimir Albertovich Lantsov, deceased

State party:                             The Russian Federation

The facts as presented by the author

2.1       In August 1994, Mr. Lantsov, during an argument, inflicted injuries on another person, as a consequence of which both criminal and civil charges were pressed against him. On 1 March 1995, he made full reparation to the plaintiff for damages determined in the civil case. Awaiting his criminal trial, set for 13 April 1995, Mr. Lantsov was initially released. However, on 5 March 1995, after failing to appear for a meeting with the investigator, he was placed pre-trial detention at Moscow’s pre-trial detention centre, “Matrosskaya Tishina”, where he died on 6 April 1995, at the age of 25.

2.2       Mrs. Lantsova submits that her son was healthy when he first entered Matrosskaya Tishina, but that he fell ill due to the very poor conditions at the prison. She complains that her son was given no medical treatment despite repeated requests. Finally, she complains that the Russian Federation has failed to bring those responsible to justice.

2.3       The author submits that the conditions at Moscow’s pre-trial detention centres are inhuman, in particular because of extreme overcrowding, poor ventilation, inadequate food and appalling hygiene. She refers to the 1994 report of the Special Rapporteur against torture to the Commission on Human Rights. Regarding access to health care, the report states that overcrowding exacerbates the inability of the staff to provide food and health care, and notes the high incidence of disease in the centres. Matrosskaya Tishina is held out for particular criticism in the report: “The conditions are cruel, inhuman and degrading; they are torturous”.

2.4       According to Mrs. Lantsova, based on statements from other detainees in the cell with her son, shortly after he was brought to Matrosskaya Tishina his physical and mental state began to deteriorate. He began to lose weight and developed a temperature. He was coughing and gasping for breath. Several days before his death he stopped eating and drank only cold water. He became delirious at some point and eventually lost consciousness.

2.5       It appears that other detainees requested medical assistance for Mr. Lantsov some time after the first week of his detention, that a medical doctor attended to him once or twice in the cell and that he was given aspirin for his temperature. However, between 3 and 6 April, during what was a rapid and obvious deterioration in his condition, he received no medical attention, despite repeated requests for assistance by the other detainees. On 6 April, after the other detainees cried out for assistance, medical personnel arrived with a stretcher. Mr. Lantsov died later that day in the prison clinic. His death certificate identifies the cause of death as “acute cardiac/circulatory insufficiency, intoxication, cachexia of unknown etiology”.

The complaint
3.         Mrs. Lantsova claims that the Russian Federation violated her son’s fundamental human rights by causing his death as a result of confinement under conditions unfit for human survival, and that it also failed in its obligation to provide any meaningful legal protection against such violations. In her opinion, this constitutes violations of articles 6, paragraph 1, article 7 and article 10, paragraph 1 of the Covenant.

The State party’s observations on the merits of the communication
6.1       In its observations on the merits of the communication, dated 28 December 1998, the State party states that Mr. Lantsov was arrested on 5 March 1995 and that on 7 March he was moved to a pre-trial detention centre and placed in a communal cell. On being admitted to the detention centre he underwent medical examinations, in accordance with the established procedure. At that time he expressed no complaints about his health, no physical anomaly was noted and a fluoroscopic examination of the chest showed no pathological condition. On 6 April, Mr. Lantsov’s fellow detainees informed the guards that he was not feeling well. After an examination by the duty doctor, Mr. Lantsov was urgently admitted to the hospital attached to the detention centre, but despite these measures he died at 9:15 a.m. A commission composed of doctors from the preventive medicine institutions attached to the Ministry of the Interior and the Moscow Department of Health carried out an investigation into Mr. Lantsov’s death. Its conclusions were that the cause of death had been bilateral ulcerative pneumococcic pneumonia, bilateral pleurisy and focal atelectasis leading to respiratory-cardiovascular failure. The general inflammation of the lungs and the pleural cavity, the patient’s failure to seek medical assistance and conditions in the prison had, in the State party’s opinion, contributed to the rapid fatal outcome.

6.2       The State party admits that at the time when Mr. Lantsov was detained, the detention centres (sledstvenii izoliator) held more than twice as many detainees as their design capacity, with the result that conditions of detention were not consistent with the regulations in force.

6.4       The State party admits that, generally speaking, conditions in detention centres constitute a serious problem for Russia and that there is no prospect of an immediate solution. A set of measures to reform the prison system has been established, with a view to improving conditions in the detention centres and bringing them into line with international standards for the treatment of prisoners. The State party cites two presidential edicts and a government decree as examples of recent steps towards the transfer of responsibility for prison establishments from the Ministry of the Interior to the Ministry of Justice. An increase in the number of places in detention centres and prisons was under way, but was being impeded by financial difficulties.

Author’s comments on the State party’s observations concerning the merits of the case
7.1       In her comments dated 21 December 2000, the author notes that the State party admits the most important facts of the case. Mr. Lantsov had entered the detention centre in perfect health, but conditions there caused his death.

7.2       She draws attentions to the fact that he had only been given 15 minutes’ medical attention before his death. Although the doctors had been informed some days before his death of his deteriorating state of health and the risk of death, they took no action. According to the author, such is common practice in that prison. With regard to the State party’s failure to properly investigate, the author recalls the testimony of various prisoners on this point and states that the prosecution department could have collected incriminatory statements if it had conducted a genuine inquiry by hearing testimony from Mr. Lantsov’s fellow prisoners. For some reason, the prosecution department did not make a proper inquiry.

7.3       The author also rejects the State party’s observation that the detention centres contained only twice as many prisoners as they were designed for. The testimony showed that overcrowding in the centres was five times the indicated level and that detainees had to sleep in turn because of lack of beds.

7.4       As regards the late notification of death to the family, the author states that in fact the authorities had never tried to notify anyone. Without Mr. Lantsov’s lawyer, who had tried to visit him, no one could be certain whether or when his mother would have learnt the truth about his death.

7.5       Lastly, the author considers that the State party is trying to evade its responsibility by listing various future decrees which are intended to improve the situation in prisons. This, in her view, constitutes nothing less than acceptance by the State party of the inhuman standards in prisons. In any event, these decrees were adopted two years after her son’s death; current or future acts can change nothing, or cannot in any way change the fact that the Russian Federation violated the human rights of a 25-year-old man in good health and that those violations cost him his life.

Issues and proceedings before the Committee
8.2       The Committee must determine whether the State party violated articles 6, paragraph 1, article 7 and 10, paragraph 1 of the Covenant in connection with the death of the author’s son.

9.1       Regarding the conditions of detention, the Committee notes that the State party concedes that prison conditions were bad and that detention centres at the time of the events held twice the intended number of inmates. The Committee also notes the specific information received from the author, in particular that the prison population was, in fact, five times the allowed capacity and that the conditions in Matrosskaya Tishina prison were inhuman, because of poor ventilation, inadequate food and hygiene. The Committee finds that holding the author’s son in the conditions prevailing at this prison during that time entailed a violation of his rights under article 10, paragraph 1 of the Covenant.

9.2       Concerning the death of Mr. Lantsov, the Committee notes the author’s allegations, on the strength of testimony by several fellow detainees, that after the deterioration of the health of the author’s son, he received medical care only during the last few minutes of his life, that the prison authorities had refused such care during the preceding days and that this situation caused his death. It also takes note of the information provided by the State party, namely that several inquiries were carried out into the causes of the death, i.e. acute pneumonia leading to cardiac insufficiency, and that Mr. Lantsov had not requested medical assistance. The Committee affirms that it is incumbent on States to ensure the right of life of detainees, and not incumbent on the latter to request protection. The stated intention of the State party to improve conditions has no impact in the assessment of this case. The Committee notes that the State party has not refuted the causal link between the conditions of the detention of Mr. Lantsov and the fatal deterioration of his state of health. Further, even if the Committee starts from the assertion of the State party that neither Mr. Lantsov himself nor his co-detainees had requested medical help in time, the essential fact remains that the State party by arresting and detaining individuals takes the responsibility to care for their life. It is up to the State party by organizing its detention facilities to know about the state of health of the detainees as far as may be reasonably expected. Lack of financial means cannot reduce this responsibility. The Committee considers that a properly functioning medical service within the detention centre could and should have known about the dangerous change in the state of health of Mr. Lantsov. It considers that the State party failed to take appropriate measures to protect Mr. Lantsov’s life during the period he spent in the detention centre. Consequently, the Human Rights Committee concludes that, in this case, there has been a violation of paragraph 1 of article 6 of the Covenant.

10.       The Human Rights Committee, acting under article 5 (4) of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the State party failed in its obligation to ensure the protection of Mr. Lantsov, who lost his life as a direct result of the existing prison conditions. The Committee finds that articles 6, paragraph 1, and article 10, paragraph 1 of the Covenant were violated.

The Judgment of the Court was delivered by:

CHANDRACHUD, CJ.

These Writ Petitions portray the plight of persons who live on pavements and in slums in the city of Bombay. They constitute nearly half the population of the city. The first group of petitions relates to pavement dwellers while the second group relates to both pavement and Slum dwellers. Those who have made pavements their homes exist in the midst of filth and squalor, which has to be seen to be believed. Rabid dogs in search of stinking meat and cats in search of hungry rats keep them company. They cook and sleep where they ease, for no conveniences are available to them. Their daughters, come of age, bathe under the nosy gaze of passers by, unmindful of the feminine sense of bashfulness. The cooking and washing over, women pick lice from each others hair. The boys beg. Menfolk, without occupation, snatch chains with the connivance of the defenders of law and order; when caught, if at all, they say: "Who doesn’t commit crimes in this city?"

It is these men and women who have come to this Court to ask for a judgment that they cannot be evicted from their squalid shelters without being offered alternative accommodation. They rely for their rights on Article 21 of the Constitution which guarantees that no person shall be deprived of his life except according to procedure established by law. They do not contend that they have a right to live on the pavements. Their contention is that they have a right to live, a right which cannot be exercised without the means of livelihood. They have no option but to flock to big cities like Bombay, which provide the means of bare subsistence. They only choose a pavement or a slum which is nearest to their place of work. In a word, their plea is that the right to life is illusory without a right to the protection of the means by which alone life can be Lived. And, the right to life can only be taken away or abridged by a procedure established by law, which has to be fair and reasonable, not fanciful or arbitrary …

On behalf of the Government of Maharashtra, a counter-affidavit has been filed by V.S.Munje, Under Secretary in the Department of Housing. … The counter-affidavit says that no person has any legal right to encroach upon or to construct any structure on a footpath, public street or on any place over which the public has a right of way. …

As we have stated while summing up the petitioners' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and. pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. Indeed, that explains the massive migration of the rural population to big cities. They migrate because they have no means of livelihood in the villages. The motive force which people their desertion of their hearths and homes in the villages that struggle for survival, that is, the struggle for life. So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: Only a handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood…

Article 39(a) of the Constitution, which is a Directive Principle of State Policy, provides that the State shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood. Article 41, which is another Directive Principle, provides, inter alia, that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work in cases of unemployment and of undeserved want. Article 37 provides that the Directive Principles, though not enforceable by any court, are nevertheless fundamental in the governance of the country. The Principles contained in Articles 39 (a) and 41 must be regarded as equally fundamental in the understanding and interpretation of the meaning and content of fundamental rights. If there is an obligation upon the State to secure to the citizens an adequate means of livelihood and the right to work, it would be sheer pedantry to exclude the right to livelihood from the content of the right to life. The State may not, by affirmative action, be compellable to provide adequate means of livelihood or work to the citizens. But, any person, who is deprived of his right to livelihood except according to just and fair procedure established by law, can challenge the deprivation as offending the right to life conferred by Article 21. …

Turning to the factual situation, how far is it true to say that if the petitioners are evicted from their slum and pavement dwellings, they will be deprived of their means of livelihood? It is impossible, in the very nature of things, to gather reliable data on this subject in regard to each individual petitioner and, none has been furnished to us in that form. That the eviction of a person from a pavement or slum will inevitably lead to the deprivation of his means of livelihood, is a proposition which does not have to be established in each individual case. That is an inference which can be drawn from acceptable data. …

But the Constitution does not put an absolute embargo on the deprivation of life or personal liberty, by Article 21, such deprivation has to be according to procedure established by law. In the instant case, the law which allows the deprivation of the right conferred by Article 21 is the Bombay Municipal Corporation Act, 1888…

These provisions, which are clear and specific, empower the Municipal Commissioner to cause to be removed encroachments on footpaths or pavements over which the public have a right of passage or access. It is undeniable that, in these cases, wherever constructions have been put up on the pavements, the public have a right of passage or access over those pavements. The argument of the petitioners is that the procedure prescribed by section 314 for the removal of encroachments from pavements is arbitrary and unreasonable since, not only does it not provide for the giving of a notice before the removal of an encroachment but, it provides expressly that the Municipal Commissioner may cause the encroachment to be removed "without notice"…

...

To summarise, we hold that no person has the right to encroach, by erecting a structure or otherwise, on footpaths, pavements or any other place reserved or ear-marked for a public purpose like, for example, a garden or a playground; that the provision contained in section 314 of the Bombay Municipal Corporation Act is not unreasonable in the circumstances of the case; and that, the Kamraj Nagar Basti is situated on an accessory road leading to the Western Express Highway.

The Writ Petitions will stand disposed of accordingly.