Evolution of Human Rights - Law of Intellectual Property Rights, Human Rights and Environment

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On this page

1. Meaning and features
2. Early sources
3. From the nineteenth century to the UN
4. Three generations
5. Theories and their critics
6. The Indian story
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

About these notes. These notes follow the official KSLU two-year LL.M. syllabus (2022–23) for Paper IX, Law of Intellectual Property Rights, Human Rights and Environment, unit by unit and in the syllabus order. The paper asks one question throughout: how do the private rights of inventors, breeders and authors fit with the public’s rights to health, food, culture, science and a clean environment? Unit I builds the background: where human rights came from, how environmental law and IP law grew up, and where the three meet.

1. Meaning and features

Human rights are the rights a person holds because he or she is human, not because a state has granted them. Four features are usually listed, and the Vienna Declaration and Programme of Action of 1993 put the last three in one line: “All human rights are universal, indivisible and interdependent and interrelated.”

Inherent and inalienable: they cannot be bought, earned or surrendered.
Universal: they belong to everyone, whatever the nationality, sex, religion or status.
Indivisible and interdependent: the right to life means little without food and health; free speech means little without education.
Correlative to state duties: in the language of the treaty bodies, the state must respect (not interfere), protect (stop third parties, such as companies, from interfering) and fulfil (take positive steps). This tripartite scheme is the tool used later to test patent and seed laws against the rights to health and food.

2. Early sources

Every legal tradition has ideas of just rule and limits on power: rajadharma in the Indian texts, Ashoka’s edicts on tolerance and welfare, Islamic limits on the ruler, and the Stoic and Christian natural-law tradition. These are ideas of duty and justice rather than rights held by individuals against the state, so most writers date the modern idea of rights from the English and eighteenth-century documents:

Magna Carta, 1215: no free man to be imprisoned or deprived of property except by the lawful judgment of his peers or the law of the land.
Petition of Right 1628, Habeas Corpus Act 1679 and Bill of Rights 1689: limits on the Crown, no taxation without Parliament, no cruel and unusual punishment.
John Locke’s Two Treatises of Government (1689): people have natural rights to life, liberty and estate; government exists to protect them. Locke’s labour theory of property is also the starting point of the natural-rights justification of IP.
The Virginia Declaration of Rights and the US Declaration of Independence, 1776, and the Bill of Rights, 1791.
The French Declaration of the Rights of Man and of the Citizen, 1789, which called property an inviolable and sacred right. Revolutionary France then passed patent (1791) and author’s right (1793) laws describing these as the creator’s property: the origin of the droit d’auteur tradition that later shaped Article 27(2) of the UDHR.

3. From the nineteenth century to the UN

Abolition of slavery: the British Slavery Abolition Act 1833, the Brussels Act 1890 and the Slavery Convention 1926.
Humanitarian law: the first Geneva Convention of 1864 and the Red Cross movement.
The ILO (1919), created with the League of Nations, began international labour standards, the first body of social rights law.
The League’s minorities treaties and mandates system protected groups, though only in selected states.
The Second World War. Roosevelt’s Four Freedoms speech (1941) named freedom of speech, freedom of worship, freedom from want and freedom from fear. The Holocaust convinced states that how a government treats its own people is a matter of international concern.

The UN Charter (1945) made human rights one of the purposes of the UN (see Unit II). The Universal Declaration of Human Rights was adopted on 10 December 1948. It was drafted by the Commission on Human Rights chaired by Eleanor Roosevelt, with René Cassin, P.C. Chang, Charles Malik and John Humphrey; India’s Hansa Mehta is credited with changing “all men” to “all human beings” in Article 1. The Cold War split the Declaration’s rights into two treaties in 1966: the ICCPR and the ICESCR, both in force in 1976. With the Optional Protocols these form the International Bill of Human Rights. The core treaties followed: CERD (1965), CEDAW (1979), the Convention against Torture (1984), the Convention on the Rights of the Child (1989), the Migrant Workers Convention (1990), and the Disability Convention and Enforced Disappearance Convention (2006). Regional systems grew alongside: the European Convention (1950), the American Convention (1969) and the African Charter on Human and Peoples’ Rights (1981), whose Article 24 gives all peoples the right to a general satisfactory environment favourable to their development.

4. Three generations

Karel Vasak (1977) grouped rights after the French revolutionary slogan:

Generation	Ideal	Examples
First	Liberty	Life, speech, religion, fair trial, property (ICCPR)
Second	Equality	Work, health, food, education, culture, science (ICESCR)
Third	Fraternity / solidarity	Development, peace, a healthy environment, self-determination

The scheme is useful for exams but has critics. It suggests a ranking, with civil rights as “real” rights and the rest as aspirations, which the Vienna Declaration rejected. It also misplaces some rights. The creator’s interest is an example: property is a first-generation idea, yet the author’s right in Article 15(1)(c) ICESCR sits among second-generation cultural rights. The environment and development, the two third-generation rights, are the ones this paper sets against IP.

5. Theories and their critics

Natural rights (Locke, Paine’s Rights of Man, 1791): rights come from human nature or reason, before the state.
Utilitarian and positivist critique. Bentham called natural and imprescriptible rights “nonsense upon stilts”: a right is the creature of law. Austin’s command theory fits this view. Modern positivists answer that once rights are in treaties and constitutions the dispute about their source matters less.
Marxist critique. In On the Jewish Question (1843) Marx saw the rights of man as the rights of the isolated, property-owning individual. The socialist states pressed the economic and social rights at the UN.
Liberal theory: Dworkin’s rights as trumps over collective goals (Taking Rights Seriously, 1977); Rawls’ equal basic liberties in A Theory of Justice (1971); the capabilities approach of Amartya Sen and Martha Nussbaum.
Universalism and cultural relativism: the Bangkok Declaration (1993) and the “Asian values” debate; the Vienna answer that regional particularities must be borne in mind but all states must promote all rights.
The Third World view. Upendra Baxi (Inhuman Wrongs and Human Rights, 1994, a prescribed book; and The Future of Human Rights) writes from the standpoint of the violated, and argues that the UDHR’s model is being displaced by a “trade-related, market-friendly” model in which the rights of investors and corporations, including IP holders under TRIPS, are protected more firmly than the rights of people. That argument is the thread of this whole paper.

6. The Indian story

The Constitution of India Bill, 1895, associated with Tilak’s circle, claimed free speech, privacy of the home and equality.
The Commonwealth of India Bill, 1925 (Annie Besant) and the Nehru Report, 1928 listed fundamental rights.
The Karachi Resolution, 1931 on Fundamental Rights and Economic Programme joined civil liberties with labour rights and state control of key industries, foreshadowing the split between Parts III and IV.
The Sapru Committee, 1945 suggested dividing rights into justiciable and non-justiciable groups.
The Constituent Assembly: the Advisory Committee (chaired by Sardar Patel) and its sub-committee on fundamental rights (J.B. Kripalani) drew on the US Bill of Rights, the Irish directive principles and the draft UDHR. The result was Part III (enforceable through Article 32) and Part IV (fundamental in governance but not enforceable).
After 1950: the courts widened Article 21 from the 1970s, PIL opened access in the 1980s, the Protection of Human Rights Act 1993 set up the NHRC, and specialised commissions followed (see Unit II).

The IP link from the start. The American Declaration of the Rights and Duties of Man (Bogotá, May 1948) and the UDHR (December 1948) both protect the moral and material interests of creators. So the claim that IP is “also a human right” is as old as the modern human rights instruments. The question for later units is whether that creator’s right is the same thing as the commercial patent or copyright that TRIPS protects. General Comment 17 (2005) says it is not.

How this is examined

Likely long questions in KSLU’s style: “Trace the evolution of human rights from Magna Carta to the Universal Declaration of Human Rights,” “Critically examine the theories of human rights,” or “Discuss the development of human rights in India before and after independence.” Short notes: generations of human rights; the International Bill of Rights; the Karachi Resolution; Baxi on human rights. For a long answer, take the history in four stages (early charters, eighteenth-century declarations, the UN era, India), then add the theories and end with the link to IP through Article 27 of the UDHR.