Human Rights Notes

17 July 2025

Natural Rights Theories – Discussed yesterday

19th – 20th Century – Rise of Legal Positivism

• Human made law as exists in conventions, statutes and cases – Product of Human
Institutions

• Enforceable because they are properly passed not because they are natural or morally
correct

• Makes implementation/ enforcement of HR easier

• 3 Main features: Man made law; Analysis of what law ought to be followed should be
value free; Law does not entail any substantive statement of morality

• Hans Kelsen – Pure Theory of Law – Free from value judgement, Law as a science
and not politics – what is law and not what ought to be – Moral Norms vs Legal Norms
(Validated by the Grundnorm)

• In IC Golaknath vs State of Punjab – Parliament has no power to amend Part III –

but this was reversed in Kesavananda Bharti vs State of Kerala – can be amended so long
as the Basic Structure is not meddled with (Grundnorm)

• HLA Hart and the Minimum Content of Natural Law – The Concept of Law – 5
defining characteristic of the Human conditions:

o Human Vulnerability (Harm can be posed by other human beings or natural

disasters – role of law is to protect humans from other humans or natural
disasters)

o Approximate Equality

o Limited Resources Law is there to prevent social chaos

o Limited Altruism

o Limited Understanding and Strength of the will

 Has been criticized for being a soft positivist; while human is the absolute law – it
ultimately should not lead to a “suicide club”. E.g. ICJ advisory judgement – on the
permissibility of nuclear weapons – ICJ said that we are not sure if there is an absolute
prohibition when the state’s defense is in jeopardy – 2 dissenting judges – Justice
Weeramantry referred to a Hart’s work – world cannot be a suicide club – there has to
be universal restriction – hinting that hard positivism without moral groundings may not
be preferable.

• Hart - Every human being must follow some morality of Duty

• Fuller – Laws are man-made, but all laws have to follow procedural morality – 8
factors –

o Generality – Applies to All

o Public Promulgation – has to be pronounced

o Prospective in Application

o Understandable

o Non-contradictory/ Reasonable continuity

o Feasibility of Performance

o Balance between official action and declared rule

• Though no substantive morality discussed – e.g. Even laws under Hitler were
procedurally correct

• AK Gopalan vs State of Madras; Maneka Gandhi vs UOI – liberty can be taken away
but fair process required

21st July 2025

Utilitarian Theory

1. Maximization of Net Happiness of all subjects – contrasts with natural law theory that
prioritizes specific interest of individuals.

2. According to Bentham – Utility is the principle that approves or disapproves actions

based on its tendency to augment or diminish happiness of the parties in question.
 Therefore, Bentham was a consequentialist. On slavery, Bentham does not consider
whether slaves can think or reason but rather whether slaves can suffer.

3. Test based on hedons of pain or pleasure

4. Just because legislature duly passed some law, that does not make it good law. Unlike the
positivist school’s belief.

5. Naz Foundation vs Govt. of NCT Delhi (2010) – Section 377 of IPC should be read
down to exclude consensual sex between homosexuals (Naz Foundation argued) – it
claimed this hinders AIDs/HIV campaign as they won’t disclose their sexuality. Though
this was recriminalized by the SC – then de-criminalized in Navtej Johar Case.

6. John Stuart Mill treatise – “On Liberty” – a more humane version of utilitarianism –
emphasized a qualitative not quantitative approach to the theory – eg. Superior pleasures
like intellectual pleasures – better to be a human dissatisfied than a pig satisfies – better
to be Socrates dissatisfies than a fool satisfied.

7. Justice and right more important than liberty to pursue satisfaction of interests

8. Liberty can be curtailed based on the harm principle – power can only be exercised over
member of civilised community against is will is to prevent harm to others

9. Critique of Utilitarianism – Leaves rights and Liberties subjects to contingencies – e.g. If

slavery has greater economic benefits to larger sections of society, it is acceptable. Or, to
appease prevalent societal anger, speedy conviction of the innocent may happen
(McMillian vs Monroe County; Dhananjoy Chatarjee vs State of WB; O.J. Simpson Trial)

22nd July 2025

21st century liberal theorists

Rawls –

1. Equality – each person is entitled to certain basic liberties compatible with the rights of
others

2. Distributive Justice – social and economic inequalities are to arranged to ensure the
greatest benefit to the least advantaged people in the society

Entering social contract with veil of ignorance – would ensure that you arrive at the above
conclusions
Murlidhar Dayandeo Kesekar vs Vishwanath Panda Barde

Land allocation to disadvantaged people - Constitutionality of refusal of approval to transfer of

property to someone outside the community – generally should not intervene but this sale deed
not to be registered because that way the most disadvantaged would not be benefited

Criticisms:

Curtailment of rights: Limiting human rights to a well ordered political institutions

Rawls lists:

1. Right to Life

2. Liberty

3. Personal Property

4. Formal equality as expressed by the rules of natural justice

Ronald Dworkin –

Chair professor of human rights – successor HLA hart – therefore influenced by him

Individual human rights are creation of politics entrenched in the constitution of individual
countries – they enable us to judge the legitimacy of the laws

Criticism of Bentham’s utilitarianism

Hard Cases – where no clear statute or precedent - decision should be reached by balancing
competing principles and deciding which deserves greater weight in circumstances of any given
case. Judges to remain faithful to the rights if the parties – instead of relying on judge’s personal
morality

E.g. S vs Makwanyane and Another (1995, Constitutional Court of South Africa) – capital
punishment is inconsistent with the commitment to human rights expressed in the interim
constitution

Joshua Cohen

2 Kinds of Minimalism

1. Substantive Minimalism

2. Justificatory Minimalism
Also:

1. Moral Cosmopolitanism

2. Cultural Cos

3. Legal Cos

Core of Universal thin morality (Michael Walzer) – negative injunctions against torture, deceit,
murder, oppression (Short List)

Reasonable conditions of world political consensus (Martha Nussbaum) – Long List

Minimum Standards of well-ordered political institutions for all people (Rawls)

Problems of Legal Cosmopolitanism:

1. Reconciling cultural, linguistic, religious and ethical diversity

2. Does it justify moral interventionalist and moral imperialism

3. Hannah Arendt – Being a right bearing person means being a member of a sovereign
polity in which one’s right to have rights is protected

23rd July 2025

Characteristic of Human Rights

The Possession Paradox

Sociological School – Positivist Approach; Constructivist approach

1993 – UN sponsored conference – declaration that human rights are universal, indivisible,
interdependent and interrelated

Other characteristics:

Natural, Inalienable, Dynamic (Constructivist theory), Global – do not depend upon the states

I. Universality

Article 1 of UDHR – “All human beings are born free and equal in dignity and rights”

Criticism regarding universality - Western Origin/ Euro-centric and Cultural Imperialism/

Cultural Relativism
Asian values and Cultural Relativism – can come in conflict with human rights - focusses more
on community than individual, duty and respect over right, leading to obedience towards state

1990s Singapore PM highlighted need for a strong state to ensure economic growth – and that
Singaporean values are based on the teaching s of Confucius – focus on education

Malaysian PM – Asian values are universal values, European values are European values

E.g. India filed reservation against CEDAW – regarding reproductive rights - religious reasons

Korea PM– Asian values prioritises community, family and duty

Chinese white paper of human rights – “To eat and dress warmly, because for long Chinese
people have suffered from hunger and cold” – focus on socio economic rights over civil and
political rights – they argue that the conflict between western and Asian values is non-existence –
juts a facade to mask intentions – in name of community interest you are protecting state or
regimes interest. Justification on restriction of speech etc are an example of soft authoritarianism.

Self-Orientalism – trying to create differences instead of analysing things neutrally – to

legitimise carving out of exception

Read 2 page article by Patrick Chin Dahler – Universal human rights, cultural Relativism and
Asian Values

II. Indivisibility

Criticism – conflict between civil and political rights vs economic and social rights

But proponents claim that civic liberties cannot be enjoyed if material need are not met

Soviet vs American Block – difference of opinion on the conflict – distributive justice would
curb civil and political rights – human rights to be seen as a negative covenant – limited positive
responsibility (USA)

Civil and Political Rights – Liberty oriented rights or blue rights – first generation of human
rights – influence of the west – easily enforceable – but can be an impediment to realization of
economic rights

Security Oriented Rights – 2nd Generation Rights – Blue Rights – Economic Rights – Harder to
implement – influence of the soviet union – positive rights
Are Human Rights positive or negative rights – ICCPR Article 2 – it is the duty of the state to
not only respecting but calls for specific activities by state parties to enable infdividuals to enjoy
their rights – therefore both positive and negatice

Un convention on rights if child

CEDAW

International consensus – both positive and negative rights

Are human rights duties?

Shue argued – real distinction not based on positive or negative rights – based on the kind of
duty – avoid – protect - and aid

Third generation of human rights – rights of developing countries/ solidarity rights

Proponent – Vasak:

1. Right to development

2. Peace

3. Environment

4. Property as common heritage

5. Right to communicate

French Revolution 3 principles – Fraternity – basis of 3rd generation rights

Critique of generations of human rights – terminology leads to the misunderstanding that newer
generations are more elaborate or better than the previous generations – weak level of
homogeneity in a new generation of human rights – it all should be brought together under one
umbrella

24th July 2025

Are human rights attainable standards or ideals of utopia

Can only be fulfilled if the states guarantee the best possible standard to everyone on the planet

Universal rights
Special rights – affirmative action for vulnerable sections of society – group entitlements – e.g.-
eg. 3rd generation human rights – right to development etc are also group rights Indigenous
peoples rights – does not talk about individual but group rights – eg. UNDRIP

Book by Amartya sen – Human Rights and Asian Vaues – 25 to 27 pages

Are these values or just a veil for hiding failures/ agenda

Article 18 of the UDHR – Freedom of thought, expression, religion and conscience – several
reservations filed by countries (mostly Asian) – because serious conflicts with national
security/public order – critique of cultural relativism – does this legitimize oppressive practices

25th July 2025

Socialist Approach to Human Rights

Karl Marx

Reflection of power relations and interest of the ruling class

Real Freedom – Economic and Social Freedom – takes priority over civil and political rights

Here are detailed notes from the document "Human Rights and Asian Values" by Amartya Sen.

Main Argument: Human Rights and Asian Values by Amartya Sen

Part 1: The "Asian Values" Claim and Economic Development

• The Central Thesis: Sen addresses the claim that "Asian values" prioritize order and
discipline over freedom and liberty, and therefore Western-style human rights are less
relevant to Asia.

o This argument was notably used by delegations from Singapore and China at the
1993 World Conference on Human Rights. 13131313

o China's foreign ministry spokesman asserted that "individuals must put the state's
rights before their own." 14

• Economic Development as Justification: Sen challenges the "Lee hypothesis,"

promoted by Singapore's Lee Kuan Yew, which posits that authoritarianism is more
effective at promoting economic growth. 151515
 o He argues this is based on selective data. 16While some authoritarian states like
South Korea and China have grown fast, so has the democratic nation of
Botswana, one of Africa's fastest-growing economies.

o Systematic empirical studies do not show a clear relationship; some find a weak
negative link between political rights and economic performance, while others
find a strong positive one. 18

o The key policies for East Asian success (e.g., openness to competition, high
literacy, land reforms) are not inherently incompatible with democracy. 19191919

• The Protective Role of Political Rights: Sen argues that political and civil rights are
essential for preventing major catastrophes. 20

o Political and civil rights give people the opportunity to draw attention forcefully
to general needs and to demand appropriate public action.

o He states that "no substantial famine has ever occurred in any independent and
democratic country with a relatively free press." 21

o Examples of famines under dictatorial rule include the USSR in the 1930s, China
from 1958-1961, and modern-day Sudan and North Korea. 22

o Ignoring political incentives while focusing only on economic ones creates a

"deeply unbalanced set of ground rules." 23

Part 2: Deconstructing "Asian Values"

• Asia is Not Monolithic: Sen argues that the idea of a single set of "Asian values" is a
crude generalization. 24

o Asia contains 60% of the world's population and is immensely diverse. 25252525

o The concept of Asia as a single unit is a "distinctly Eurocentric perspective,"

derived from the term "the Orient," which simply refers to the direction of the
rising sun. 26

o Even within East Asia, a common focus for this argument, there is vast cultural
diversity, as seen in Japan's overlapping Shinto and Buddhist traditions. 27272727
• Freedom is Not Uniquely Western: The idea that political freedom is an ancient and
fundamental feature of Western culture is a backward extrapolation from recent
developments like the Enlightenment.

o Sen cites scholar Isaiah Berlin, who found "no convincing evidence of any clear
formulation of [individual liberty] in the ancient world." 29

o It's more useful to look for the constituent components of liberty—such as the
value of freedom for some, and the equality of that freedom for all. 30Aristotle,
for instance, supported freedom for elite men but not for women or slaves. 31

• Traditions of Freedom and Tolerance in Asia: Sen provides extensive historical

evidence of freedom-oriented perspectives within Asian traditions. 32

o Confucianism: The common authoritarian reading of Confucius is a caricature.

33
Confucius did not advise blind obedience to the state, telling a follower to "Tell
him [the prince] the truth even if it offends him." 34He also prioritized family
loyalty over state loyalty when the two came into conflict. 35353535

o Buddhism: This tradition attaches great importance to freedom and free choice.
36

o Indian History:

▪ Emperor Ashoka (3rd century B.C.) promoted tolerance on an

egalitarian basis after witnessing the carnage of war. 37 One of his edicts
states, "A man must not do reverence to his own sect or disparage that of
another man without reason." 38

▪ Kautilya (4th century B.C.), while an autocrat, argued for the importance
of personal freedom for the upper classes, a position not dissimilar to
that of Aristotle. 39

▪ Emperor Akbar (reigned 1556-1605) championed religious tolerance at a

time when the Inquisition was active in Europe. He enacted a law that
"No man should be interfered with on account of religion." 41

▪ The intolerant Moghul emperor Aurangzeb was an exception. 42His own

brother, Dara Shikoh, studied Hindu philosophy, and his son rebelled
against his intolerance. 43
 ▪ The Hindu king Shivaji, often seen as an icon by Hindu nationalists, also
practiced religious tolerance. 44

Part 3: Human Rights and Global Intervention

• Human Rights are Universal: Sen argues that human rights are not derived from
citizenship in a particular country but are entitlements of every human being. 45They
transcend local legislation and national boundaries. 46

• Resisting Western Hegemony: The "Asian values" argument is often artificially linked
to anti-colonial sentiment to attack basic political rights in post-colonial Asia. 47

• The Right to Be Concerned: Because human rights are universal, the duty to support
them can extend across borders. 48

o This does not mandate constant intervention, but it establishes that nationality is
not a moral barrier to taking a "legitimate interest in the rights of others." 49

o The rights being debated belong to Asians, and their claims cannot be
compromised by arguments about Western hegemony. 50

Conclusion

• The so-called Asian values used to defend authoritarianism are not particularly Asian. 51

• Grand dichotomies between "Western civilization" and "Asian values" are intellectually
shallow, historically unfounded, and divisive. 52525252

• Antecedents of tolerance and freedom can be found in Asian traditions just as they can
in Western ones. 53

• The case for liberty and political rights is fundamentally about their basic importance and
instrumental role, a case that is as strong in Asia as anywhere else. 54

29th July 2025

Module 1 Over

Origin of Human Rights

Code of Hammurabi

Charter of Cyprus
Revolutions – French, American – Declaration of Rights of Man and Declaraation of
Indepedance

Religious – Karuna

Legal Texts

Philosophers

WWII – genocide – need for universal inalienable rights – led to UN? UDHR – international law
on human rights evolved only after the WWII

Role of Roosevelt – Freedom of Speech, Worship, from want, from fear

Nuremburg Trials – from 1945 to 1946 became base for global law against genocide and armed
conflict

1948 UDHR

1966 – ICCPR and ICESCR

Un Charter 1945 – talks about HR, Peace and Development

Commission on Human Rights from 1946 to 2006 and now the Human Rights Council – why
was this switch from commission to council required

UDHR and 2 covenants together called the international bill of rights – 2 covenants which
together grant 24 rights – under socio economic and cultural – 14 – 5 group rights

Generations of Human Rights:

First Generation: These rights, primarily civil and political, focus on individual liberties and
freedoms from governmental overreach. Examples include the right to life, liberty, property,
freedom of speech, freedom of religion, and freedom from torture. They emerged during the
17th and 18th centuries, influenced by the Enlightenment and revolutions in America and
France.

Second Generation: This generation emphasizes social, economic, and cultural rights,
promoting equality and ensuring basic needs are met. Examples include the right to education,
healthcare, work, and an adequate standard of living. These rights gained prominence in the 19th
and 20th centuries, reflecting a growing awareness of social justice issues.
Third Generation: This generation encompasses collective and solidarity rights, recognizing the
importance of group rights and the interdependence of humanity. Examples include the right to
self-determination, a healthy environment, sovereignty over natural resources, culture, language
and religion, development. These rights gained recognition in the late 20th century, emphasizing
global cooperation and shared responsibility.

Fourth Generation: Technology Rights

Revisionist View of Human Rights – these human rights are peripheral merely utopian ideals

UDHR 7 core principles –

• Progressive Realization – will take time

• Immediate Implementation of CPR (Civil and Political Rights) – though social and
economic ones may take time to implement

• Non-Discrimination

• Effective remedies for CPR

• Equality of men and women

• Reservations and Limitations – e.g. India with CEDAW

• Higher Standard cannot be lowered

Norm Creation Process wrt UN

• Lobbying by States or NGOs

• Resolution for study (the problem)

• Completion of Study and Submission of report to the UN

• Adoption of a resolution for declaration – these declarations are non-binding

• Drafting of the declaration

• Adoption

• Drafting Convention

• Ratification of Convention

• Setting up of monitoring bodies

 • Judgement passing body to look into complaints and provide remedy

Optional steps:

• Call for resolution for optional protocols to fill in the gaps

• Drafting

• Ratification

Methods for implementation

• Promotion

o Developing Awareness

o National Standard Setting – through Legislation – National Human Rights Act

o Setting National Institutions – NHRC established in India

• Protection

o Monitoring: UPR – Uniform Periodic Review – for gross violations – even for
non-party states – investigations conducted through special rapporteurs

o Adjudication: ICJ/ ICC

o Political Supervision: Naming and Shaming; Official Statements

o Humanitarian Actions – e.g. UNFPA / International Aid – maybe denied in

cases of repetitive violations

o Coercive Actions: Sanctions, Criminal Tribunals (Principle of Responsibility to

Protect - RTB)

30th July 2025

I. Peace of Westphalia (1648)

• Purpose: Ended the Thirty Years' War in Europe; brought an end to large-scale internal
religious conflicts.

• Key Contribution to International Law:

o Sovereignty Principle: Each state is sovereign and equal; no interference in

domestic affairs of others.
 • Influence on the UN Charter:

o Article 2(1): Enshrines the principle of “Sovereign Equality of States.”

o Article 2(7): Prohibits intervention in matters within the domestic jurisdiction of

any state.

o Article 51: Preserves the right to self-defence in case of armed attack or external
interference.

• Legacy: Considered the formal starting point of the modern state system and
international law based on sovereign equality.

II. Concert of Europe (Post-Treaty of Vienna, 1815)

• Context: Created after the defeat of Napoleon; aimed at maintaining the balance of
power in Europe.

• Participants: Russia, Prussia, Austria, and Great Britain – later joined by post-
revolutionary France.

• Objectives:

o Internal Stability: Support of established monarchies.

o External Coordination: Managing European relations and responding to threats

from nationalism, liberalism, and democracy.

• Achievements:

o Functioned effectively for decades (until the Franco-Prussian War, 1870).

o Public International Unions (PIUs): Early international cooperation mechanisms

in areas like transport, sanitation, labour, and uniform standards — precursors to
today’s specialized UN agencies (e.g., ILO, WHO).

o Focused on labour rights and women’s rights in early transnational efforts.

• Limitations:

o Failed to maintain long-term peace.

o Excluded smaller states from decision-making.

 o NGO involvement (early form of civil society) began emerging — often
uninvited — and disrupted consensus-building.

• End of Relevance: Could not prevent large-scale conflict; overshadowed by rising

nationalism and the formation of rigid alliance systems.

III. League of Nations (1919)

• Formation: Established under the Treaty of Versailles after WWI; result of the Paris
Peace Conference.

• Founding Members: 44 nations initially; peaked at 58 members by 1935.

o Dominated by the “Big Four”: UK, France, Italy, and the US (although the US
never joined).

o Membership skewed toward British colonies, reflecting colonial influence.

• Core Principles:

o Collective Security: An attack on one is an attack on all.

o Disarmament: Gradual reduction of arms.

o Peaceful Arbitration: Settling disputes via negotiation or legal mechanisms.

• Institutional Structure:

o Council: 4 permanent and 4 elected members (upper chamber).

o Assembly: One vote per country; all had veto power, making action difficult.

o Secretariat: Administered by a Secretary General.

• Major Development: In 1922, established the Permanent Court of International

Justice.

• Successes:

o Addressed refugee and health crises.

o Supported Greece economically.

o Curbed some border disputes early on.

 • Failures:

o Unanimity rule and vetoes crippled decision-making.

o US absence weakened legitimacy.

o Dominated by British interests; not truly universal.

o Failed to prevent aggression by Axis powers:

▪ Japan (Manchuria, 1931)

▪ Italy (Ethiopia, 1935)

▪ Germany (Rhineland, 1936)

o USSR joined late (1934) and was expelled in 1939 after attacking Finland.

• Final Collapse:

o Only France and Britain remained committed; both weakened by WWII and the
Great Depression.

o League effectively dissolved by early 1940s; replaced by the United Nations in

1945.

Read evolving internation organizations – the UN past and present – article for this part – jstor –
chapter from a book – An UN Renaissance

1st August 2025

UN

1941 Roosevelt thought of thename Churchill accepted it – 26 Alliance – special research (Leo
Palrosky)

1942 UN information office

1944 – ILO and IMF – Brittonwood conference

1944 – Dumbarton COnefrence – to decide structure – sub committes of UN

1945 – Yalta Conefrence

April – June 1945 – San Franscisco conference – UN officially founded - These countries along
with Poland became the first 51 members – objectives collective security; Human Rights;
Development

Important bodies – General Assembly (Deliberative Organ); Security Council (power Politic
body); Secretariat – UN does not have a policing body or a prosecutor

Other three bodies – Human Rights Council; ECOSOC; ICJ

How is it different from the league of nations:

• US a member (unlike big 4)

• Every member did not have veto – only the 5 permanent members had it, along with the
10 rotating members

• Original charter included military intervention provisions – unlike the league

UN Charter

Preamble

“We the peoples (collective rights) of United Nations determined…

• to save succeeding generations from the scourge of war, which twice in our lifetime has
brought untold sorrow to mankind, and

• to reaffirm faith in fundamental human rights, in the dignity and worth of the human
person, in the equal rights of men and women and of nations large and small, and

• to establish conditions under which justice and respect for the obligations arising from
treaties and other sources of international law can be maintained, and

• to promote social progress and better standards of life in larger freedom,…”

Article 1

Peace and Security

Friendly Relations

International Cooperation

harmonizing the actions of nations in the attainment of these common ends.

Article 2

principle of the sovereign equality

settle their international disputes by peaceful means

Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction; but this principle shall not
prejudice the application of enforcement measures under Chapter Vll (Threats to peace).

Organs:

I. Security Council

5 permanent members

10 rotating members selected by the general assembly every 2 years

6th Veto – for procedural matters – single veto will not defeat the resolution; for substative
matters – one of the 5 can veto – this is discussed under article 27 of the UN charter

Resolutions are binding on member states

Functions:

Examine situation affecting peace

Tribunal

Peace keeping missions

Sanctions

Can invite non members to the meeting – article 32

Establish subsidiary bodies to carry out its agenda – article 27 – UNSC has 40 subsidiary bodies
to deal with different disputes etc

Controversy: Use of VETO power to further their individual foreign policies

General Assembly

Deliberative Organ

1 Prez

2 VP
6 Heads of Committees

If matter is pending before UNSC, GA can not take it up

It can initiate studies and make recommendations

Eg. Maltese government

GA recommendation not binding – only in case of budget and election to UNSC – in regards to
internal functioning of the UN

Electing members to bodies like ICJ, ECOSOC, UNSC

Repository for international treaty meeting (convention secretariat)

Shortcomings

Only a deliberative body no enforcement power

Does not adequately represent world population – each country one vote

Decision taken slowly – depends upon the lowest denominator – even the smallest country has
to vote

NAM & Group of 77

4th August 2025

ECOSOC

Article 61 of the UN charter – composition – 54 elected member elected by the general assembly
constitute the council of ecosoc – earlier only 12 members – also has a president and a vp

8 functional specialised commissions

5 regional committees –

1. Africa

2. Asia Pacific

3. Europe

4. Latin America and Caribbean

5. West Asia

Permanent forum on indigenous issues

Trusteeship council

Around 80 UK colonies

Meant to administer their affairs and supervise them

By 1994, the last country gained independence – council lost its importance – only a principle
organ in the charter

International Court of Justice

Only body of UN which is in hague, Netherlands instead of new York

Also refered to as the world court

Principle Judicial Organ

Universal General Jurisdiction – including violation of human rights

Settles disputes – can only be referred by UN members

Can give advisory opinions on legal questions

by rome statute in 2002 ICC was established

Secretariat

Article 100

Article 101

Executive organ

Headed by a secretary general

Elected by GA

Submits annual reports to the general assembly

5th August 2025

1946 – Philosopher’s Committee

UN commission on Human Rights 1947

Chaired by Roosevelt (American); Rene Cassin (France); Charles Malik (Lebanon); Peng Chung
Chung (China); John Humphry (Canada)

Geneva Draft Prepared

Submitted to all UN members for all to provide comments

Submitted to General Assembly

Resolution 217 A (III) 1948 – passed of December 10 1948

India did not vote for fear of international meddling

30 articles – both economic – social, cultural and political rights

Non- binding

Article 1, 13 (1), ICESCR, Article ICCPR

S vs Makwayane & Oths (SA, 1995)

Article 1, 5

Is death penalty justified?

Based on constitutional interpretation – read with the international alw – though not enforceable
– outlaed – held against right to life and dignity

Legal consequences for states of continued presence of south Africa in Namibia by the ICJ -
advisory jurisdiction

SA integrated territory of Namibia – passed racially discriminatory laws upon Namibia

States must not cooperate with illegal regimes like SA in Namibia

Article 2 and 1 of UDHR

Indian Case – Maneka Gandhi vs UOI – Article 13 – Human Planet – a single unity despute
differences – justifies freedom of movement within this unit – to go abroad

7th August 2025

Implementation of Rights under the UDHR

Article 28 if the UDHR talks about everyone being entitled to a social and intertonoal order –
for the realization of human rights

Office of the high commission of human rights – article 4 – slavery – servile marriages, Human
trafficking are its modern forms

Article 8 of ICCPR – also talks about this

European Court of Human Rights – 2005 – Siliadin vs France

S a female from Tongo – brought to a family in France with promise that her migration would
be formalised – made to work for years withut pay – held France is under obligation to prevent
and criminalise this modern slavery

Article 5 of UDHR – right against torture / inhuman treatment

Article 7 of OCCPR – non consensual medical experiments or scientific experiments – also a a

form of torture

Special Rapportiere established – to prevent torture etc – even for contries that are not
signitaries

1997 – DK Basu vs State of WB – 11 principles on how police should act on case of case of
arrest and detention – article 5 of udhr – referred to -and said aticle 21 to be read with article 5 –
making custodial violence a form charter – SC said it is a naked violation of human dignity –
wounds human dignity – step back for the civilization

Ireland vs UK – 1978 judgement – European court of human rights case – British officials
detained irish nationals under emergency laws – subjected to 5 techniques – standing against wall
for hours – continuous loud noise – sleep deprivation – food and drink deprivation irish
government approached European court of H – said 5 techniques violate article 3of the
European convention of human rights (embodiment of art 5 of UDHR) – held does not amount
to torture but comprises inhuman treatmet – torture is positive act on body – here there was
mere deprivation – again filed revision petition – but again court declined to revise the ruling s
Article 18 – Free expression – without state intervention – and freedom of ssociation – right to
freely be a part of an association – and no one can compel you to be a part of an association –
positive and negative rights

Article 19, 21 and 22 of the icc pr – same thing

Article 8 of the ICESCR

Limitations: Proportionate, Lawful and Necessary

PUCL vs UOI (2003, SC)

Prevention of Terrorism Act (POTA) – used to monitor and intercept communications – SC

said that there should be procedural guards over any surveillance –

• Individual right to be balanced with issue of national security – per se not illegal

Derogation (temporary suspension – eg during public emergency) vs Limitation

Derogable / Non Derogable Rights (Limitations allowed in both cases)

11th August 2025

Mid Sem Syllabus – Module 1, 2, 3

Right to dignity (cont.)

Francis Coalie Mullin vs The Administrator, UT Delhi (1981)

Mullin (Foreigner) was detained under COFEPOSA – claimed under preventive detention not
allowed to meet lawyers and family and denied access to proper healthcare – constituting
inhuman treatment under the Indian constitution

Article 21 of constitution and 5, 25 of UDHR – read together – court distinguished between

punitive detention and preventive detention – had right to consult lawyer, meet family, access to
healthcare – part of adequate standard of living

Right to Education (Article 26 of UDHR – ICESCR Article 13 – Convention on Rights of

Children Article 28, 29)

UDHR not binding but CRC and ICESCR are binding – implemented by article 21A of the
constitution

4 challenges –
 1. States Lack of finance

2. Economic barrier for children family – even if there is a school

3. Discrimination – gender based specifically

4. Large scale emergency situations

4 A Framework:

1. Availability

2. Accessibility

3. Adaptability

4. Economic Accessibility

ICCPR (adopted in 1966, came to force in 1976, India Ratified in 1979 – binding)

53 principal articles and 2 protocols under it

1. 1976 – optional protocol 1 - protocol for implementation – The Human Rights

Commission empowered to receive complaints from individuals

2. 1991 – protocol – prohibiting death penalty

Article 6 – Right to life

Article 7 – freedom from torture

Article 8 – Freedom from slavery

Article 15 – criminal laws cannot be retrospective

Article 16 – Recognition of person – in some countries may not be recognised as persons/

citizens – therefore not being entitled to several rights as legal persons

Article 18 – Freedom of thought

All of the above rights are non-Derogable

Derogable Rights include:

Article 9, 12, 19 (liberty, expression, privacy) – these rights can be suspended for temporary
period

ICESCR – adopted by UN in 1966 – ratified in 1976

Has 31 Articles

Monitoring body – committee on economic, social and cultural rights

No concept of Derogable/ non Derogable

To be progressively realised – mentioned in the objects

Major Rights:

Right to Education Article 13 and 14

Social Security – Art. 9

Health – Art. 12

Adequate Standard of Living – Art. 11

Work – Art. 6-7

Cultural Life – Art. 15

Article 8

Optional Protocol – 2008 – india has not ratified – individuals complaint

12th August 2025

3 Important HRC Cases

Toonen vs Australia (1994)

Background

Nicholas Toonen was a gay man from Tasmania, Australia.

Tasmania at the time had laws criminalising all forms of sexual contact between consenting adult
males in private — even though such acts were decriminalised in the rest of Australia.

Toonen worked for the Tasmanian AIDS Council. His advocacy and personal life meant the law
not only stigmatised him but threatened his work.

Facts of the Case

1. The complaint
In 1991, Toonen filed an individual communication to the UN Human Rights Committee (HRC)
under the First Optional Protocol to the ICCPR (not UDHR — the legally binding instrument
here was the ICCPR).

He argued that the Tasmanian laws:

Violated Article 17 ICCPR (right to privacy)

Violated Article 26 ICCPR (right to equality and non-discrimination)

He also pointed to right to work issues — that criminalisation undermined his employment in
AIDS prevention.

2. Tasmania’s stance

The Tasmanian government refused to repeal the laws, saying they reflected community
morality.

3. Australian Federal Government’s stance

Initially, the federal government said these laws were a state matter, but it became central to the
dispute.

HRC Decision (31 March 1994)

Findings:

1. The laws violated Article 17 — criminalisation of consensual same-sex sexual activity between
adults in private was an arbitrary interference with privacy.

2. The laws violated Article 26 — discrimination on the basis of sexual orientation is prohibited
under the ICCPR.

The HRC rejected Tasmania’s public morality justification — morality alone is not enough to
restrict fundamental rights.

Aftermath

1. Tasmania refused to repeal the law despite the decision.

2. The Australian Federal Government passed the Human Rights (Sexual Conduct) Act 1994 —
it ensured that Australians have the right to sexual privacy and prohibited arbitrary interference
by laws like Tasmania’s. This was a federal override mechanism.
3. This set up the domestic challenge: Croome v. Tasmania (1997) in the High Court of
Australia.

Rodney Croome and others challenged the Tasmanian laws under the Human Rights (Sexual
Conduct) Act 1994 and the Australian Constitution.

Tasmania ultimately repealed the criminalisation laws in 1997 before the case concluded.

Mukong v. Cameroon (1994) — UN Human Rights Committee

Facts

Albert Womah Mukong, a Cameroonian journalist and outspoken critic of Cameroon’s one-
party government, advocated for multi-party democracy.

He was arrested multiple times and in 1988 was detained without trial, kept in harsh conditions,
and denied access to legal representation.

He filed a communication to the HRC under the First Optional Protocol to the ICCPR, alleging
violations of:

Article 7 — freedom from torture or cruel, inhuman or degrading treatment

Article 9 — freedom from arbitrary arrest and detention

Article 10 — right to be treated with humanity in detention

Article 12 — freedom of movement

Article 14 — fair trial rights

Article 19 — freedom of expression

Cameroon justified the detention under national security concerns, citing unrest and political
instability.

Issues

1. Did Cameroon’s detention of Mukong violate his right to freedom of expression under Article
19?

2. Did the conditions and nature of his detention violate Article 7 (and possibly Article 10)?

3. Were his fair trial rights under Articles 14 and freedom of movement under Article 12
breached?
HRC Findings (21 July 1994)

Article 19: Violation — detaining Mukong solely for peacefully criticising the government and
advocating political reform was unjustifiable under ICCPR.

Article 7: Violation — the conditions of detention (overcrowding, poor sanitation, lack of

medical care) amounted to cruel, inhuman, and degrading treatment.

Article 9: Violation — his detention was arbitrary; there was no legal justification or due process.

Articles 12 and 14: Committee found insufficient evidence to establish a violation.

Outcome

HRC called on Cameroon to provide an effective remedy, including compensation, and to

prevent recurrence.

Mukong was eventually released by the Cameroonian government.

A. v. Australia (1997) — UN Human Rights Committee

Facts

“A” was a Cambodian national who arrived in Australia by boat in 1989 seeking asylum.

He was detained under Australia’s mandatory immigration detention policy for over 4 years
while his refugee status was being processed.

He filed a communication to the HRC under the First Optional Protocol to the ICCPR, alleging
violations of:

Article 9(1) — freedom from arbitrary arrest and detention

Article 9(4) — right to challenge detention before a court

Article 14(1) — equality before courts and fair hearing

“A” argued that the detention was unnecessary, prolonged, and without meaningful judicial
review.

Issues

1. Does prolonged, indefinite immigration detention without effective judicial review breach
Article 9 ICCPR?
2. Does the right to a fair and public hearing under Article 14 apply to non-citizens in
immigration matters.

HRC Findings (30 April 1997)

Article 9(1): Violation — detention for over 4 years was disproportionate and unnecessary; no
individualised assessment was made; alternatives were not considered.

Article 9(4): Violation — absence of prompt and effective judicial review of detention amounted
to arbitrariness.

Article 14: Not a violation in this context — asylum processing not considered a “criminal
charge” or “determination of rights and obligations in a suit at law” under Article 14. However,
the Committee reaffirmed that non-citizens are entitled to equal protection before courts where
applicable.

Outcome

HRC called o Australia to release “A” and provide an effective remedy, including compensation.

The Australian government rejected the decision and maintained its mandatory detention regime.

The case went largely unremedied

13th August 2025

ICESCR Cases

1. I.D.G. v. Spain (2015) - Committee on Economic, Social and Cultural Rights

• Facts: The complainant, Ms. I.D.G., faced foreclosure proceedings on her home after
defaulting on a loan. The court attempted to serve her notice multiple times but failed as
she was not home. The fourth time, the notice of auction was simply pasted to her door.
She was subsequently evicted without, she argued, having received effective prior
notification.

• Decision: The Committee found that Spain had violated her right to adequate
housing under Article 11 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR). It held that states must take all appropriate measures to
ensure that individuals facing eviction receive timely and adequate notice, allowing
them to participate in legal proceedings. This includes ensuring that the method of
notification is reasonably calculated to reach the person.
2. Minister of Health v. Treatment Action Campaign (TAC) (2002) - Constitutional Court
of South Africa

• Facts: The Treatment Action Campaign (TAC), an NGO, sued the South African
government on behalf of HIV-positive pregnant women. The government was refusing
to make the anti-retroviral drug Nevirapine widely available in public hospitals to
prevent mother-to-child transmission (MTCT) of HIV. The government argued the
drug's safety was not fully proven and cited logistical costs for a national rollout.

• Decision: The Constitutional Court of South Africa delivered a landmark ruling. It held
that the government's policy was a violation of the right to access healthcare services
enshrined in Section 27 of the South African Constitution. The court explicitly
referenced South Africa's obligations under Article 12 of the ICESCR (the right to the
highest attainable standard of health) to inform its interpretation of the constitution.
It ordered the government to make Nevirapine available without delay.

3. Sunil Babu Pant and Others v. Government of Nepal (2007) - Supreme Court of Nepal

• Facts: Sunil Babu Pant, LGBTQ+ activists, and the Blue Diamond Society (an
LGBTQ+ rights organization) filed a petition challenging widespread discrimination
against sexual and gender minorities. They cited illegal detention, denial of employment,
and lack of access to healthcare and education. They invoked Nepal's constitution as well
as its obligations under the ICCPR (Articles 2, 17, 26) and the ICESCR (Articles 2, 6-
10, 12).

• Decision: The Supreme Court of Nepal issued a groundbreaking decision. It legally

recognized a "third gender" category based on an individual's self-identification. The
court ordered the government to amend all laws that were discriminatory on the basis of
sexual orientation and gender identity and to issue official identity documents (like
citizenship cards and passports) reflecting the third gender category.

4. Comilang v. Commissioner of Registration (2013) - Hong Kong Court of Appeal

 • Facts: Ms. Comilang, a domestic worker from the Philippines working in Hong Kong,
was denied a new visa. She argued that this decision indirectly violated the rights of her
daughter, who was a Hong Kong resident, by forcing their separation. She invoked
protections for the family under Hong Kong's Basic Law (Article 37) and international
covenants, including Article 10(1) of the ICESCR (protection of the family).

• Decision: The Court of First Instance initially ruled that international instruments were
not directly enforceable in Hong Kong's domestic law. However, the Court of Appeal,
while ultimately deciding the case on other procedural grounds, upheld the principle that
international human rights norms, particularly those in the ICESCR, should inform the
interpretation of domestic law. The judgment affirmed that while the ICESCR may
not be directly justiciable, its principles are relevant for assessing whether a government
action is lawful and reasonable.

19th August 2025

2 Implementing Bodies:

Commission on Human Rights (HRC)

Established 1946 – drafted the UDHR – subsidiary body of ECOSOC

Drafted major legal instruments like the UDHR

53 members

1960s focus shifted from policy making to monitoring and implementation:

1. Investigate – through special rapporteurs and fact-finding missions & thematic

missions – e.g. like business and human rights – one prevalent theme currently

2. Report to UN

3. Condemn

Owing to implementation - countries felt their sovereignty was being violated

Politicization – member countries themselves had gross human rights violations

Other problems – Regionalism – prevent certain issues from their region to be taken up &
Ignoring resolution – not implementing even when passed

Shift to Council from Commission

Human Rights Cases and UN Commission Controversies

Darfur Genocide (2003-ongoing)

Background and Context

• Location: Darfur region in western Sudan

• Timeline: Conflict began in 2003

Key Parties and Initial Conflict

• Rebel Groups:

o Sudan Liberation Army (SLA)

o Justice and Equality Movement (JEM)

• Accusations: These groups accused the Sudanese government of politically and

economically marginalizing non-Arab populations in Darfur

Government Response and Atrocities

• Sudanese Government Retaliation: Systematic campaign of violence against civilian

populations

• Methods of Violence:

o Mass killings

o Widespread sexual violence

o Burning and destruction of villages

o Forced mass displacement

Scale and Impact

• Death Toll: Estimated 200,000 to 400,000 deaths

• Displacement: Approximately 2.5 million people displaced

• Refugee Crisis: Large-scale migration to neighboring Chad

International Response

• US Position: Officially declared the situation a genocide

 • UN Condemnation: United Nations condemned the actions as severe human rights
violations

• UN Security Council: Launched its own investigation into the atrocities

• ICC Referral: First-ever referral by the UN Security Council to the International

Criminal Court

• Legal Action: ICC issued arrest warrant against Sudanese President Omar al-Bashir

Institutional Irony

• Despite ongoing atrocities, Sudan was elected as a member of the UN Commission on

Human Rights

Operation Murambatsvina - Zimbabwe (2005)

Background

• Leader: Robert Mugabe's government

• Year: 2005

• Operation Name: "Murambatsvina" (meaning "Drive out Trash/Filth")

Nature of Operations

• Methods:

o Government propaganda campaigns

o Systematic destruction of property

o Violence against targeted communities

International Investigation

• UN Response: Established a fact-finding mission

• Findings: Mission documented extensive human rights violations

Institutional Contradiction
 • While these violations were occurring and being documented, Zimbabwe was
simultaneously made a member of the UN Commission on Human Rights, the very body
responsible for implementing human rights protections

Libya Commission Chair Controversy (2003)

Background

• Leader: Muammar Gaddafi's authoritarian rule in Libya

• Year: 2003

• Context: Libya under Gaddafi was widely recognized as a tyrannical regime

The Controversy

• Election: Libya was elected as chair of the UN Commission on Human Rights

• Contradiction: A country with severe human rights violations leading the body meant to
protect human rights

Examples of Selective Focus

• Cuba Case: Commission actively criticized and voted on human rights violations in
Cuba

• El Salvador Silence: Remained silent on documented violations in El Salvador

• Pattern: Demonstrated regionalism and selective focus based on geopolitical alliances

rather than objective human rights concerns

Key Themes and Implications

These cases highlight fundamental problems within international human rights institutions:

1. Institutional Contradictions: Countries committing serious violations being placed in

positions of human rights authority

2. Selective Enforcement: Political considerations often override human rights concerns

3. Geopolitical Influence: Regional blocs and political alliances affect human rights
decision-making
 4. Credibility Crisis: These contradictions undermine the effectiveness and legitimacy of
international human rights bodies

Transition from Commission to Council

• Year of Establishment: 2006

• Rationale: Replace the discredited Commission on Human Rights with a more effective
and credible body

• Institutional Upgrade: Elevated from ECOSOC subsidiary to a principal organ of the

UN General Assembly

Membership Structure

Reduced Size and Regional Representation

• Total Members: Reduced from 53 to 47 member states

• Regional Distribution:

o Africa: 13 seats

o Asia-Pacific: 13 seats

o Latin America and Caribbean: 8 seats

o Western Europe: 7 seats

o Eastern Europe: 6 seats

Term Limits and Selection Criteria

• Term Duration: 3-year terms for member states

• Cooling-off Period: Mandatory 2-year break after serving a full term

• Selection Standard: Members should demonstrate "highest standards of human rights

implementation"

• Democratic Process: Election by UN General Assembly majority

Key Institutional Innovations

1. Universal Periodic Review (UPR)

 • Scope: Comprehensive review of every UN member state's human rights record

• Frequency: Each country reviewed every 4-5 years

• Peer Review Process: All UN member states participate in reviewing each other

• Transparency: Public process with civil society input

2. Special Procedures

Independent Experts and Special Rapporteurs

• Mandate: Investigate and report on specific human rights themes or country situations

• Independence: Serve in individual capacity, not representing governments

Thematic Reviews - Current Examples:

• Environmental Rights: Ocean and sea mining human rights implications

• Civil Liberties: Freedom of speech and expression

• Criminal Justice: Torture and human rights issues in detention/imprisonment

• Business and Human Rights: Corporate accountability

3. Complaint Procedure

• Individual Access: Mechanism for individuals to submit complaints

• NGO Participation: Non-governmental organizations can file complaints about human

rights violations

• Confidential Process: Initial review conducted confidentially

4. Advisory Committee

• Composition: 18 independent human rights experts serving as think tank

• Function: Provide expertise, research, and thematic advice to the Council

• Role: Support Council's work through specialized knowledge

5. Emergency Sessions

• Purpose: Address grave and systematic human rights violations requiring urgent
attention
 • Activation: Can be called by one-third of Council members

• Contrast: Regular Council meets three times annually; emergency sessions provide rapid
response capability

Case Study: India's UPR Experience (2022)

Overview

• Cycle: 41st UPR cycle (India's 4th review)

• Year: 2022

• Participating States: 130 UN member countries

• Total Recommendations: Over 399 recommendations to the Indian government

Major Areas of Concern

1. Minority Rights (Religious)

Key Issues Identified:

• Citizenship Amendment Act (CAA): Calls for repeal due to discriminatory provisions

• Anti-Conversion Laws: Concerns about state-level legislation restricting religious

conversion

• Religious Freedom: Protection of religious minorities and prevention of communal

violence

2. Freedom of Speech and Expression

Recommendations Include:

• Sedition Laws: Decriminalization of sedition provisions in Indian Penal Code

• Media Freedom: Strengthen protections for journalists and media independence

• Civic Voices: Enhanced protection for activists, civil society leaders, and dissenting
voices

• Digital Rights: Address concerns about internet shutdowns and online censorship

3. Civic Space and NGO Operations

Major Concerns:

• Foreign Contribution (Regulation) Act (FCRA): Restrictions on foreign funding

creating operational difficulties for NGO. International organizations like Red Cross
facing operational constraints due to regulatory restrictions.

Independent Fact-finding mission in Myanmar – report said that war crimes have been
committed by the Myanmar military - but nothing happened

20th August 2025

Sub commission on the protection and promotion of human rights

Came into existence in 1947 – originally known as sub commission on prevention of

discrimination and protection of minority rights – renamed in 1999

Bridges gap between academic research and policy making – like a think tank that makes soft
laws – which might be later adopted into binding instruments – Think Tank of the UN

Studies human rights related issues – makes recommendations in the forms of soft laws

Only 12 members originally – now 43 members

After studying for 50 years – drafted – UN Declaration on Rights of Indigenous people –

became a declaration in 2007

Sub committee removed in 2006 -replaced by an advisory body

Commenced study on racial discrimination – led to Durban Conference 2001

Report on Transnational Cooperation and Human Rights – submitted in 2000 – what should be
the obligations and TNCs in terms of HR – report titled – Norms on the responsibilities of
TNCs and other businesses – wrt to HR – came in 2003 – led to UN guiding principle on
business and Human Rights

Second Monitoring Body

CSW established in 1946 as a subsidiary of ECOSOC

Drafted the CEDAW – and also looks after its implementation

Full female membership

45 member states elected for 4 years

Meets twice in New York annually

Looks into global policy recommendations for rights of women.

Came up with the Beijing Platform of Action 1995 – 12 key areas – became the blue print for
nations for agendas to work on to improve status of women and make more opportunities
available to them

Regular Agreed Conclusions – identified ways in which rights of women are violated:

1. Violence against women in 2013

2. Women in Digital Age in 2023

Third implementing Body: OHRHC

Like office of registrar

Created 1993 by UN General Assembly recommendation

Geneva Headquarters and 90 offices around the world

Reports to two bodies – UN General Secretary & UN Human Rights Council

Major role – drafting agendas – 16 SDG Goals – came up with the UNGA 2016 resolution on
climate change – right to clean, healthy and sustainable environment.

21st August 2025

UN Treaty Bodies (Unlike previously discussed charter-based bodies)

There are 9 treaties under the UN system and 10 Treaty Bodies – Treaty body on torture has a
sub commission as well

Agenda:

Monitor Implementation

Members are also different from members of charter bodies – not political – independent
experts – every country sends their own individual experts – more autonomous compred to the
chartered bodies

Addis Ababa Guidelines on Independence and Impartiality of members of Human Rights

bodies – for nomination and election

All treaty bodies meet in Geneva (usually 10 years)

Support (staff and financial) from the office of the high commissioner

Difference from charter bodies

Treaty bodies – take up specific HR agenda – like women under CEDAW and Child under CRC
– Treaty bodies have more general scope

No state representatives – based on expertise appointment

Not political body – quasi judicial or legal in nature

Charter bodies have Performance review UPR, special rapporteurs, Investigation, and Treaty
bodies have RPR – Review Periodic Reports, Individuals Complaints and General Complaints

6 Functions of Treaty Bodies –

1. State Party reports – each state member has to submit a report under 1 year post
ratification to highlight changes and then periodic reports have to be submitted –
based on which concluding remarks are given by individual treaty body – usually
every 4 years
2. Individual Complaints – usually against own states – sometimes interstate complaints
are also filed.
3. Country visit and inquiry by bodies
4. General Comments and Recommendations (term used in CEDAW, for all others –
comments) – interpretation of articles
5. Annual meeting of chairpersons of all bodies – since 10 different bodies – to
generally improve treaty body system
6. Treaty Body Strengthening

22nd August 2025

Committee on Discrimination of Racial Discrimination (CERD) – 1969

Composition -18 members

Mechanism – General Comments and General Recommendations Individual and Interstate

complaint, every two years – state party reports

Meetings – 3 sessions for 3 – 4 – 3 weeks

Committee on Economic Social and Cultural Rights (CESCR) – 1985

2 sessions a year 3 + 1 week in a year

18 members

Every 5 years – state party report

No complaint mechanism – meant for progressive realization – only proviiosn for progressive
dialogue

Human Rights Committee

18 members

State Party Report – 1 year

Whenever committee requests – usually – every 8 years – you will be asked to submit a report

3 sessions per year

Article 41 – can look into interstate complaints – optional protocol – if ratified – unlike india –
can make individual complaints plus other optional protocol – death penalty abolition

CEDAW

23 members

3 times a year – 3 + 1 + 1 weeks – 1 week – pre sessional working group meeting

Mechanism – can receive not complaints – but communications from individuals or civil
societies – alleging violation of rights – can initiate enquiries

Contributions – inheritance rights in Tanzania – political rights of omen in costa rica – adopted
laws – gender equality in Mongolia – Domenstic vilence laws in turkey, Nepal , south Africa and
republic of korea, anti traffic laws in ukrain and Moldova – national enquires on missing and
murdered indeginious women in Canada – forced china to prohibit non-medical foestus
identification

26th August, 2025

Committee Against Torture (CAT)

• Mechanisms available under CAT:

o Individual complaints (communications by individuals claiming to be victims

of torture).

o Interstate complaints (states alleging violations by another state).

 o Inquiries (confidential investigations in cases of systematic torture).

o State reporting: States must submit their initial report one year after
ratification, followed by periodic reports every four years (State Party
Reports).

• Universal ratification and full implementation is the long-term goal, which includes
encouraging states to withdraw reservations.

• Optional Protocol to CAT (OPCAT), 2006:

o Established the Subcommittee on Prevention of Torture (SPT) as a separate

treaty body.

o Guided by principles of transparency, non-selectivity, cooperation, and

confidentiality.

o Meets three times a year.

o Advises and assists National Preventive Mechanisms (NPMs) at the domestic

level.

o Membership: 25 independent experts, elected for four-year terms.

Committee on the Rights of Persons with Disabilities (CRPD Committee)

• Established under the Convention on the Rights of Persons with Disabilities

(CRPD).

• State reporting obligation (Article 35):

o Initial report due within two years of ratification.

o Subsequent reports every four years.

• Membership: 18 independent experts.

• Meetings: Held twice a year, for about one week each session.

• Context: The Convention recognizes that approximately 15% of the world’s population
lives with some form of disability.
Committee on the Protection of the Rights of All Migrant Workers and Members of
Their Families (CMW Committee)

• Definition:

o Article 2(1) of the International Convention on the Protection of the Rights

of All Migrant Workers and Members of Their Families defines a migrant
worker as “a person who is to be engaged, is engaged, or has been
engaged in a remunerated activity in a State of which he or she is not a
national.”

• Composition: 14 independent experts.

• Sessions: Meets twice a year, for about one week each session.

• Functions:

o Examines state party reports on implementation of the Convention.

o Can adopt general comments to interpret treaty provisions.

o Encourages protection of migrant workers’ rights globally.

Committee on the Rights of the Child (CRC Committee)

• Optional Protocols to the CRC:

1. 2000 – Involvement of children in armed conflict (raises minimum age and

protects children from military recruitment).

2. 2000 – Sale of children, child prostitution, and child pornography.

3. 2011 – Communications procedure (enables individual complaints to the CRC

Committee).

• State reporting obligations:

o Initial report due within 2 years of ratification.

o Periodic reports every 5 years thereafter.

• Meetings:
 o Holds 3 sessions per year, each with 3 plenary meetings.

o Includes 2 pre-sessional working groups (to prepare dialogue with states).

• Composition: 18 independent experts (though you didn’t mention it, worth noting for
consistency).

28th August 2025

European Human Rights System

Origin

WW2 → Congress of Europe →Council of Europe → ECPHRFF → USSR Disintegration

(Protocol 11) → 21st Century (Protocol)

Article 19 – establishment of court – ensure that contracting parties observe rights in the
convention and protocol

Article 20 – nuber of judgest equal to contracting parties

Article 21 – Qualification for jufges

Article 22 – election of judges by assembly of the European council

Article 23 – terms of office – no re-election

Principle of subsidiarity – whatever is to be done – trisl – to start at the lowest level

Principle of fourth instance – Europea Court is nit an appellate court – india part of council of
Europe

Principles of proportionality – article 15 of the convention – some derogation can be allowed n

cases of public order/ security of the nation/ emergency etc- article 2 – right to life – cannot be
derogated in any circumstance

29th August 2025

European Council

ESC – Social charter – sor socio economic rights 1961 charter – 1998 protocol – all mmebrs of
the council are also charter mebers – regular reports to be submittd

Framework for minorties

EHRFR – 1953 – 14 – 8 procedural and 6 substantive – article 15 (1) – Derogable rights – can
be qualified – article 8 – right to privacy, right to practice religion – Article 9, article 10 absolute
rights – Art 2,3,4,7

European Court of Human Rights

Pillars of EU – Economic, social, common security and foreign policy , home affaitrs

Treaty of Amsterdam

Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und

Futtermittel (1970)

Read Here

National constituions act as general principles for community law – thereby serving as a guiding
principle – Germany had claimed the comminuty law violted right to profession

Charter of fundamental rights of European Union – not ratified for many years – became
binding in 2009

2nd September 2025

US Human Rights System

The US Human Rights System is a framework for protecting human rights within the United
States. It operates on two main levels: State Law and National Law.

Inter-American Human Rights System (IAHRS)

The IAHRS is a regional human rights body operating under the Organization of American
States (OAS). The OAS comprises 35 member states in the Americas, although Nicaragua
withdrew in 2023.

The OAS has four primary objectives:

• Democracy

• Human Rights Protection

• Economic and Social Development

• Regional Security
The IAHRS is governed by several key instruments:

1. American Declaration on the Rights and Duties of Man (1948): This declaration,
predating the Universal Declaration of Human Rights (UDHR), emphasizes both the
rights and duties of individuals. It highlights duties toward family (e.g., providing
education and nutrition), society (e.g., protecting the environment), and humanity.

2. American Convention on Human Rights (ACHR) (1969): Currently ratified by 24

states, the ACHR establishes two key institutions: the Inter-American Commission on
Human Rights and the Inter-American Court of Human Rights (established in
1979).

Institutions of the ACHR

• Inter-American Commission on Human Rights: This is the principal organ for

implementing the rights and duties outlined in the convention. It reviews petitions and
complaints, takes precautionary measures to prevent irreparable harm (even before a
violation occurs), facilitates friendly settlements, and conducts on-site visits to monitor
country-wide violations. The commission also produces country reports and can refer
cases to the court.

• Inter-American Court of Human Rights: Located in San José, Costa Rica, the court
consists of seven judges elected by the OAS. It has advisory, contentious, and
provisional jurisdictions. Provisional measures provide immediate, short-term relief
to protect individuals like human rights defenders or journalists from arrest. The court
conducts both written and oral proceedings and can grant various forms of relief,
including compensation, guarantees of non-repetition, legislative reform, or public
apologies.

Enforcement and Key Provisions

• Articles 44 to 51: Establish the individual petition system.

• Article 48 (1): Provides for friendly settlement, a non-contentious method of

resolution where a mediator or arbitrator assists the victim and the state, often used in
land disputes involving indigenous peoples.
 • Article 25: Covers precautionary protection.

• Article 63 (2): Addresses provisional measures.

• Article 41: Pertains to monitoring and country visits.

Additional Protocols

The ACHR is supplemented by two additional protocols:

• Protocol of San Salvador (1988): Focuses on obligations concerning economic, social,

and cultural rights.

• Protocol to Abolish the Death Penalty (1990).

Challenges and Criticisms

• Lack of Ratification: While the USA and Canada are members of the OAS, they have
not ratified the ACHR, which limits the system's reach and effectiveness in these
countries.

• Political Pressure: The system faces political pressure and threats of withdrawal from
member states, such as Venezuela, when they come under scrutiny for human rights
violations.

• Resource Constraints: The court is burdened by a high volume of cases and a lack of
resources, which can delay justice.

Case Law

1. Velásquez Rodríguez vs. Honduras (1988): In one of the first binding judgments by
the court, it held that the state is responsible not only for direct human rights violations
but also for a failure to prevent them. The court found Honduras guilty due to a lack of
due diligence in a case involving the disappearance of a university student.

2. Barrios Altos vs. Peru (2001): The court ruled that amnesty laws passed by the
Peruvian government were invalid because they violated Articles 8 and 25 of the
 ACHR. These laws had protected police officers involved in civilian deaths during anti-
insurgency operations. The court mandated legislative reforms to abolish them.

3. González vs. Mexico (2009): In what is known as the "Cotton Fields" case, the court
found that Mexico had a duty to prevent, investigate, and punish gender-based violence.
The state's negligence in addressing the murders of women in cotton fields made it a
human rights violator.

4. Advisory Opinion on Environmental Rights (2017): The court, in response to a

request from Colombia, affirmed that a healthy environment is a human right. It
established that states are obligated to conduct environmental impact assessments
and provide information to citizens regarding environmental issues.