UNIT 1

1. CONCEPTUALIZATION OF HR

“Human rights” are

• Rights inherent to all human beings, regardless of our nationality,
• Residence,
• Sex,
• Sexual orientation and gender identity,
• National or ethnic origin,
• Color,
• Religion,
• Language or any other status.
We are all equally entitled to our human rights without discrimination.

2. HISTORY

 The belief that everyone, by virtue of her or his humanity, is entitled to certain human
rights is fairly new and is something stemming from an evolution of the consideration of
human dignity over the last centuries.
 Its roots lie in earlier tradition and documents of many cultures.
 Documents asserting individual rights, such as the Magna Carta (1215), the Petition of
Right (1628), the US Constitution (1787), the French Declaration of the Rights of Man
and of the Citizen (1789), and the US Bill of Rights (1791) are the written precursors to
many of today’s human rights documents.

 In 539 B.C., the armies of Cyrus the Great, the first king of ancient Persia, conquered the
city of Babylon. But it was his next actions that marked a major advance for Man.
 He freed the slaves, declared that all people had the right to choose their own religion,
and established racial equality.
 These and other rulings were recorded on a baked-clay cylinder in the Akkadian
language with cuneiform script.(it’s a language, (now extinct) that was spoken in ancient
Mesopotamia from third millennium BC)
 Known today as the Cyrus Cylinder, this ancient record has now been recognized as the
world’s first charter of Human Rights.
 It is translated into all six official languages of the United Nations(Arabic, Chinese,
English, French, Russian and Spanish) and its provisions parallel the first four Articles of
the Universal Declaration of Human Rights.

• From Babylon, the idea of human rights spread quickly to India, Greece and eventually
Rome.
• Then there, the concept of “Natural Law” arose, in observation of the fact that people
inclined to follow certain unwritten laws in the course of life, and Roman law was based
on rational ideas derived from the nature of things.
• In 1215, after King John of England violated a number of ancient laws and customs by
which England had been governed, his subjects forced him to sign the Magna Carta,
which enumerates what later came to be thought of as human rights.
• Among them was the right of the church to be free from governmental interference, the
rights of all free citizens to own and inherit property and to be protected from excessive
taxes.
• It established the right of widows who owned property to choose not to remarry, and
established principles of due process and equality before the law. It also contained
provisions forbidding bribery and official misconduct.

• On July 4, 1776, the United States Congress approved the Declaration of Independence
from Great Britain, more than a year after the outbreak of the American Revolutionary
War, and,
• as a statement announcing that the thirteen American Colonies were no longer a part of
the British Empire.
• Congress issued the Declaration of Independence in several forms and was published
and widely distributed and read to the public.
• the Declaration stressed two themes:
v Individual Rights and the Right of Revolution.
These ideas became widely held by Americans and spread internationally as well,
influencing in particular the French Revolution.

The First Geneva Convention (1864)

• The original document from the first Geneva Convention in 1864 provided for care to
wounded soldiers.
• In 1864, sixteen European countries and several American states attended a conference
in Geneva, at the invitation of the Swiss Federal Council, on the initiative of the Geneva
Committee. The diplomatic conference was held for the purpose of adopting a
convention for the treatment of wounded soldiers in combat.
• The main principles laid down in the Convention and maintained by the later Geneva
Conventions provided for the obligation to extend care without discrimination to
wounded and sick military personnel and respect for and marking of medical personnel
transports and equipment with the distinctive sign of the red cross on a white
background.
• The steps forward made since the time of Cyrus were impressive, yet still many of these
concepts, when originally translated into policies, excluded women, people of colour,
and members of certain social, religious, economic, and political groups.
• Prime examples to overcome this situation are represented by the efforts in the 19th
and early 20th centuries to prohibit the slave trade and to limit the horrors of war.
• The concerns over the protection of certain minority groups, which were raised by the
League of Nations at the end of the First World War(1914-18), and the establishment of
the International Labor Organization (ILO,1919) to oversee treaties protecting workers
with respect to their rights, including their health and safety, manifest the increased
positive attitude toward the recognition of the importance of Human Rights as we know
them today.
• The time for a revolution and a deep progress in the protection and promotion of
human dignity was ripe.
• Eventually, it took the catalyst of World War II to propel human rights onto the global
stage and into the global conscience.
 • The unprecedented cruelties perpetrated during the conflict and outside it such as the
extermination by Nazi Germany of over six million Jews, Sinti and Romani (gypsies),
homosexuals, and persons with disabilities horrified the world. The idea of human
rights thus emerged even stronger than ever after World War II. The Trials held in
Nuremberg and Tokyo after World War II(1939-45), introduced the rather new concepts
of "crimes against peace," and "crimes against human
• Governments then committed themselves to establishing the United Nations, with the
primary goal of bolstering international peace and preventing conflict. People wanted
to ensure that never again would anyone be unjustly denied life, freedom, food, shelter,
and nationality.

UNO-UN CHARTER & UDHR

• In1945, fifty founding members of the United Nations stated, in the preamble of the UN
Charter, that they were determined to save succeeding generations from the scourge of
war
• 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 in order to promote
social progress and better standards of life in larger freedom.

3. LEGAL THEORIES:

I. NATURAL LAW THEORY

• The concept of Natural Law originated in ancient Greece. Under this concept an
individual’s rights arise from nature and therefore cannot be given or assigned by the
political powers. The core principle of Natural Law is the principle of morality and
therefore close connection exists between the law and morality.
• Many ideas on rights, equality, justice and laws initially outlined by ancient Greek
philosophers like Socrates and Plato were further developed by Aristotle (384-322 BC).
• Natural law is a philosophical theory that states that humans have certain rights, moral
values, and responsibilities that are inherent in human nature.
• Natural law theory is based on the idea that natural laws are universal concepts and
are not based on any culture or customs. Still, it is a way society acts naturally and
inherently as human beings.
• natural law incorporates the idea that humans understand the difference between
“right” and “wrong” inherently so, human beings are not taught natural law; they
initiate it by making good and right decisions. Therefore, it is said to be discoverable
through the exercise of reason.
• Natural law highlights human behaviour involving ethical standards and ways of being
inherent.
• Every individual has right to life , liberty and property
• Importance of Natural Law
• Natural law is important because it is applied to moral, political, and ethical systems
today. It has played a large role in the history of political and philosophical theory and
has been used to understand and discuss human nature.
 • The first example of natural law includes the idea that it is universally accepted and
understood that killing a human being is wrong. However, it is also universally accepted
that punishing someone for killing that person is right. The idea demonstrates that
without the requirement of legislation, such beliefs are something that human beings
understand inherently as wrong, without the requirement of law.
• The second example includes the idea that Parents give birth to a child, and they
become parents and natural caregivers for that child. It is something that natural law
theory would explain as natural law because it is inherent within human beings, and any
human-made law would not be required for humans to feel as though they need to act
as the caregiver of their child.

II. POSITIVE LAW THEORY

 Legal positivism is a mentality in legalism that the existence and content of law should
depend on social facts and not on merits.
 It is the view that morality has no weight in the law that is made and established as the
law of the state. It should be followed and it is supreme however immoral or unjust that
piece of law or legislation is.
 There are several legal thinkers who developed the idea of legal positivism, amongst
them the most prominent figures are Jeremy Bentham, John Austin and HLA Hart.
 Positivists are divided into two, inclusive and exclusive positivism. Inclusive positivists
are people who believe that moral constraints can be incorporated into law according
to a society’s belief. Even HLA Hart was an inclusive (soft) positivist who believe that
“the rule of recognition may incorporate as criteria of legal validity conformity with
moral principles or substantive values.
 On the other hand are the exclusive positivists who believe that a legal system cannot
integrate moral restraints on legal validity. They believe in the absolute supremacy of
the positive law. One of prominent exclusive (hard) positivists was Joseph Raz who was
actually a student of HLA Hart and Austin.

III. THEOLOGY

 Christians argue that humans have rights not because they are part of the natural
order, but because God created them. Hence, Christians claim that human rights
cannot be justified on the basis of natural law but rather must be grounded in God.
o The following are several key themes that are at the heart of Catholic social
tradition:
1. Life and Dignity of the Human Person
 The Catholic Church proclaims that human life is sacred, and that the dignity of the
human person is the foundation of a moral vision for society. It believes that every
person is precious, that people are more important than things, and that the measure
of every institution is whether it threatens or enhances the life and dignity of the
human person.
2. Call to Family, Community, and Participation
  The person is not only sacred but also social. How we organize our society in economics
and politics, in law and policy directly affects human dignity and the capacity of
individuals to grow in community.
 Marriage and the family are the central social institutions that must be supported and
strengthened, not undermined. Catholic church believes people have a right and a
duty to participate in society, seeking together the common good and well-being of
all, especially poor and vulnerable people.
3. Rights and Responsibilities
 The Catholic tradition teaches that human dignity can be protected and a healthy
community can be achieved only if human rights are protected and responsibilities are
met. Therefore, every person has a fundamental right to life and a right to those things
required for human decency. Corresponding to these rights are duties and
responsibilities–to one another, to our families, and to the larger society.
4. Preferential Option for the Poor
 A basic moral test is how our most vulnerable members are faring. In a society marred
by deepening divisions between rich and poor, our tradition instructs us to put the
needs of poor and vulnerable people first.
5. The Dignity of Work and the Rights of Workers
 The economy must serve people, not the other way around. Work is more than a way to
make a living; it is a form of continuing participation in God’s creation. If the dignity of
work is to be protected, then the basic rights of workers must be respected—the right
to productive work, to decent and fair wages, to the organization and joining of unions,
to private property, and to economic initiative.
6. Solidarity
 We are one human family whatever our national, racial, ethnic, economic and
ideological differences. We are our brothers’ and sisters’ keepers, wherever they may
be. Loving our neighbour has global dimensions in a shrinking world. At the core of the
virtue of solidarity is the pursuit of justice and peace. Pope Paul VI taught that “if you
want peace, work for justice.” The Gospel calls us to be peacemakers. Our love for all
our sisters and brothers demands that we promote peace in a world surrounded by
violence and conflict.
7. Care for God’s Creation
 We show our respect for the Creator by our stewardship of creation. Care for the earth
is a requirement of the Catholic faith. We are called to protect people and the planet,
living our faith in relationship with all of God’s creation. This environmental challenge
has fundamental moral and ethical dimensions that cannot be ignored.

IV. UNIVERSALIST VIEW VS CULTURAL RELATIVISM

 The UN Human Rights Commission, responsible for framing the UDHR, consisted of
leaders and activists from both Eastern and Western societies, cultures, and religions.
With so many cultures and religions represented, it was difficult to fully agree on a
common definition of human rights. This is a conflict we still see today.
 In conflicts regarding the understanding of human rights, two opposing views often
emerge – one mirroring the Western world and its values, and the other reflecting the
values of many Asian and African states.
 We see that Western countries generally emphasise the universal approach to human
rights, the belief that certain rights are the same for everyone, regardless of gender,
race, ethnicity, and religion, even if they contradict local practices and beliefs. Everyone
has the right to self-expression and to live the life they choose without interference
from the government. The focus here is on individual human rights that apply to
everyone.
 However, in many African and Asian countries, the rights of the community supersede
the rights of the individual. The family, the village or the nation play a much more
important role than the individual, and excessive individualism is often regarded as a
threat to unity and social order in a country. It is also believed that each culture should
determine the rights the people enjoy, and not the ideas found in Western societies.
This mindset is often referred to as cultural relativism.
 These two opposing views have often led to conflicts in the international community,
and there are countless examples of state practices and regional traditions violating the
rights stated in the UDHR. For example:
 Female genital mutilation (FGM) has been documented in 30 countries, primarily in
Africa. Sudan is the country that has most recently criminalised FGM (2020). However,
FGM still persists in many poor, rural areas where traditions outweigh the laws of the
state.
 In Saudi Arabia, the public practice of any form of religion other than Islam is illegal. It is
also illegal for Muslims to change religion or renounce Islam. By law, blasphemy is
punishable by death, although most people only receive a long prison sentence.
 Homosexuality is illegal in 72 countries and punishable by death in 11 countries. When
President Museveni of Uganda was criticized by the West for signing anti-gay legislation
into law, he told the outside world to “respect African society and their values. If you
don’t agree, just keep quiet. Let us manage our society."
UNIT 2

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 UDHR

I. WHAT IS THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND WHY

WAS IT CREATED?

 The Universal Declaration of Human Rights (UDHR) is a document that acts like a global
road map for freedom and equality – protecting the rights of every individual,
everywhere. It was the first time countries agreed on the freedoms and rights that
deserve universal protection in order for every individual to live their lives freely, equ-
ally and in dignity.
 The UDHR was adopted by the newly established United Nations on 10 December
1948, in response to the “barbarous acts which […] outraged the conscience of
mankind” during the Second World War. Its adoption recognized human rights to be
the foundation for freedom, justice and peace.
 Work on the UDHR began in 1946, with a drafting committee composed of
representatives of a wide variety of countries, including the USA, Lebanon and China.
The drafting committee was later enlarged to include representatives of Australia, Chile,
France, the Soviet Union and the United Kingdom, allowing the document to benefit
from contributions of states from all regions, and their diverse religious, political and
cultural contexts. The UDHR was then discussed by all members of the UN Commission
on Human Rights and finally adopted by the General Assembly in 1948.
 The Declaration outlines 30 rights and freedoms that belong to all of us and that
nobody can take away from us. The rights that were included continue to form the basis
for international human rights law. Today, the Declaration remains a living document.
It is the most translated document in the world.

II. WHAT IS IT DESIGNED TO DO?

 The UDHR is a milestone document. For the first time, the world had a globally agreed
document that marked out all humans as being free and equal, regardless of sex,
colour, creed, religion or other characteristics.
 The 30 rights and freedoms set out in the UDHR include the right to be free from
torture, the right to freedom of expression, the right to education and the right
to seek asylum. It includes civil and political rights, such as the rights
to life, liberty and privacy. It also includes economic, social and cultural rights, such as
the rights to social security, health and adequate housing.

III. CONCERNS AND DEBATES AROUND THE DRAFTING STAGE OF UDHR

 The drafting of the Universal Declaration of Human Rights was carried out primarily by
the United Nations Human Rights Commission. The United Nations Charter states in
Article 1(3) that one of the purposes of the United Nations is to achieve international
cooperation in solving international problems of an economic, social, cultural, or
humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or
religion.
 Further, Article 55 states that, With a view to the creation of conditions of stability and
well-being which are necessary for peaceful and friendly relations among nations based
on respect for the principle of equal rights and self-determination of peoples, the
United Nations shall promote: universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex, language or
religion.
 In Article 56, all member states of the UN “pledge themselves to take joint and separate
action in cooperation with the Organization for the achievement of the purposes set
forth in Article 55.”
 While the UN Charter made promotion of respect for human rights one of its key
objectives, it did not define what the term “human rights” encompassed. Rather, in
Article 68 it required the Economic and Social Council (ECOSOC) to “set up commissions
in economic and social fields and for the promotion of human rights.” Article 68 in fact
makes the Human Rights Commission the only commission of the entire United Nations
system that is mandated by the Charter. The Universal Declaration of Human Rights is
thus born out of the Charter references to human rights in the Preamble and in Articles
1, 55 and 56 and represents the attempt to define and explain what the Charter meant
by the term “human rights.”
 The Charter does not at any point mandate that an international bill of rights be
written. While it mandated that a Commission on Human Rights be established, it left
the matter of an international bill of rights for future work and negotiation. At the
closing of the San Francisco Conference, the American president, Harry Truman, made
this point explicit. Upon becoming president Truman had wholeheartedly taken over
Franklin Roosevelt’s United Nations project. He praised the delegation for their single-
minded focus on producing a charter for the new organization and promised that
“[u]nder this document we have good reasons to expect the framing of an international
bill of rights, acceptable to all the nations involved.” That bill of rights, Truman
predicted, “will be as much a part of international life as our own Bill of Rights is part of
our Constitution.” When the Human Rights Commission was established it was charged
first of all to come up with a recommendation and report “regarding... an international
bill of rights” (E/248). The Commission on Human Rights, having been established and
given the task to write an international bill of rights, worked on that project for two full
years, from January 1947 to December 1948.
 Finally, Article 62 of the United Nations Charter states that ECOSOC may “make
recommendations for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all.” ECOSOC relied upon this power when it
recommended on December 10, 1948 that the Third General Assembly of the United
Nations adopt and proclaim the Universal Declaration of Human Rights
IV. ARE THE RIGHTS UNDER THE UDHR TRULY UNIVERSAL OR DOMINATED
BY WESTERN PHILOSOPHIES AS CLAIMED ?

The Universal Declaration of Human Rights (UDHR) is a landmark document that was adopted
by the United Nations General Assembly in 1948. It proclaims the inalienable rights which
everyone is entitled to as a human being, regardless of race, color, religion, sex, language,
political or other opinion, national or social origin, property, birth or other status.

The UDHR has been translated into over 500 languages and is considered to be the most widely
accepted international human rights instrument. It has inspired a rich body of legally binding
international human rights treaties, and continues to be an inspiration to all, whether in
addressing injustices, in times of conflict, in societies suffering repression, and in our efforts
towards achieving universal enjoyment of human rights.

- Are the rights under the UDHR truly universal?

The UDHR is a product of its time, and it is true that some of its drafters were influenced by
Western philosophies. However, it is important to note that the UDHR was also drafted by
representatives from all over the world, who came from a wide range of cultural and religious
backgrounds.

The UDHR is not a perfect document, and there are some who argue that it does not
adequately reflect the values of all cultures. However, the core principles of the UDHR, such as
the right to life, liberty, and security of person; the right to freedom of expression and opinion;
and the right to education, are values that are shared by people all over the world.

- Criticism of the UDHR

Some critics of the UDHR argue that it is a Western imposition of values on other cultures. They
claim that the UDHR does not take into account the diversity of human cultures and values,
and that it is therefore not universal.

Other critics argue that the UDHR is too idealistic and that its principles are not always
achievable in the real world. They point to the fact that many countries continue to violate
human rights with impunity.

Despite its critics, the UDHR remains the most important international human rights
instrument. It has had a profound impact on the development of human rights law and practice
around the world.

- Is the UDHR dominated by Western philosophies?

It is true that the UDHR was drafted by a group of people who were largely influenced by
Western philosophies. However, it is important to note that the UDHR is not a monolithic
document. It reflects a wide range of values and perspectives from different cultures around
the world.

For example, the UDHR includes the right to freedom of religion, which is a fundamental right
in many non-Western cultures. The UDHR also includes the right to education, which is a right
that is increasingly being recognized as important in all cultures.

In addition, the UDHR has been translated into over 500 languages and is used by human rights
activists all over the world. This suggests that the UDHR is not just a Western document, but
rather a universal document that is relevant to people of all cultures.

- Conclusion

The UDHR is a landmark document that has had a profound impact on the development of
human rights law and practice around the world. It is not a perfect document, but it reflects
the core values that are shared by people of all cultures.

The claim that the UDHR is dominated by Western philosophies is simplistic and inaccurate.
The UDHR is a product of its time, but it has been embraced by people from all over the world.
The UDHR is a universal document that is relevant to people of all cultures.
UNIT 3

INTERNATIONAL HR

1. Unit 3 : International Human Rights

UNIT 4: The working of Human Rights Council (UNHRC)

▪ Failures of Committee on Human Rights and the establishment of the Human
Rights Council.
▪ Universal Period Review process and drawbacks.

A number of bodies have been established under the United Nations System to promote and
protect human rights

CHARTER BASED BODIES –

 Derive their establishment from provisions contained in the Charter of the United
Nations
 Hold broad human rights mandates
 Address an unlimited audience
 Take action based on majority voting
 The Human Rights Council and its predecessor, the Commission on Human Rights, are
called "Charter-based" as they were established by resolutions of principal organs of
the UN whose authority flows from the UN Charter.
 The current Charter-based bodies are the Human Rights Council and its subsidiaries,
including the Universal Periodic Review Working Group and the Advisory Committee.
 Previously, the Charter-based bodies were the Commission on Human Rights and its
subsidiaries, including the Sub commission on the Promotion and Protection of Human
Rights.
 The Special Procedures, such as Special Rapporteurs, have carried on their work since
1947, reporting first to the Commission, then to the Council.
 During its 60th session, the General Assembly adopted the World Summit Outcome,
resolution 60/1 of September 2005, which called, inter alia, for strengthening of the
UN's human rights mechanisms. This led to the establishment, later in the session, of
the Human Rights Council.

COMMISSION ON HUMAN RIGHTS

 First and foremost human rights body – Commission on Human Rights

 Appointed by Economic and Social Council, approved by General Assembly –
February 16, 1946
 Commission on March 2006 was replaced – Human Rights Council (UNHRC) –
General Assembly – March 15, 2006
 Commission concluded its work at its 62 nd session – after 60 years of work –
promotion and protection of Human Rights
 Composed of 18 members – elected by ECOSOC
  Each state member– selected its own representative
 Since 1991 – had 53 member governments
 Met annually in Geneva – six weeks beginning in March
 Could also meet between annual sessions – to deal with urgent human rights
situations – such special sessions have taken place 5 times till the end of 2004
 Reports to ECOSOC which in turn reports to General assembly.

SUB- COMMISSION ON PROMOTION AND PROTECTION OF HUMAN RIGHTS

 Established on June 21, 1946 – under authority of ECOSOC – also assumed/replaced

by UNHRC
 Sub- Commission on Prevention of Discrimination and Protection of Minorities –
established to conduct studies and make recommendations to the Commission
concerning the prevention and discrimination against racial, religious and linguistic
minorities
 Composed of 26 members – elected by commission- subject to consent of their
governments
 Met for four weeks each year and had standing Working groups –

1. The Working group on Communications

2. The working Group on Contemporary Form of Slavery

3. The Working Group on Indigenous Population and 4

. The Working Group on Minorities

 Established sessional working groups or appointed special rapporteurs for specific

issues – rights of persons detained on grounds of mental ill-health, rights of
minorities etc
 Studied concrete aspects of discrimination – discrimination in education,
discrimination in employment and occupation, discrimination against persons born
out of wedlock, etc
 Under the sub commission, a social forum started its work in 2002 – follow up on
situations of poverty and destitution throughout the world
 Forum – propose standards and initiatives of a juridical nature, guidelines and
recommendations for the consideration of other relevant UN bodies and follow up on
the agreements reached at the major world conferences and summits.

HUMAN RIGHTS COUNCIL

 Heads of States and Governments – met at UN headquarters in New York – from

September 14 to 16, 2005 – adopted a document at end of Summit – known as 2005
World Summit Outcome
 Outcome document contained a number of global issues
 Agreed to create a Human Rights Council – based in Geneva - responsible for the
protection of all human rights and fundamental freedoms , without distinction of any
kind and in a fair and equal manner
 General Assembly – March 15, 2006 – established HRC by adopting a resolution
 Established by a vote of 170 in favour, with 4 against (Israel, Marshall Islands, Palau,
United States), with 3 abstaining (Belarus, Iran and Venezuela)
 Replaced the Commission on Human rights
 The Council is an intergovernmental bosy responsible for strengthening the
promotion and protection of Human Rights around the globe – addressing situations
of Human Rights violations and make recommendations on them
 Discuss all thematic human rights issues and situations that require its attention
 Subsidiary organ of the General Assembly

A. COMPOSITION

 Consists of 47 members – elected directly and individually by secret ballot – by

majority of members of General assembly
 Based on equitable geographical location - 13 African States; 13 Asia-Pacific States;
8 Latin American and Caribbean States; 7 Western European and other States; 6
Eastern European State
 Membership – open to all member states of the UN
 While electing members – take into account the contribution of candidates to the
promotion and protection of human rights
 Suspension of rights of membership by Assembly – by two third majorityof member
present and voting - if gross and systematic violations of human rights committed
 Members serve a period of three years – not eligible for immediate re-election
 First election – May 9, 2006
 Holds regular sessions three times a year – March, June and September
 Can decide to hold a special session at anytime to address human rights violations
and in emergencies, at request of one third of member states
 Has a Bureau - consists of a president and four vice-presidents - serve for a year in
accordance with the Council’s annual cycle (January – December).
 Staff from the Office of the High Commissioner for Human Rights (OHCHR) serve as
the Secretariat for the Council - providing its members with technical, substantive
and administrative support.
 In addition to the member States of the Council, observers, which include non-
member States, inter-governmental organizations, national human rights
institutions, and non-governmental organizations (NGOs), also participate actively in
Council sessions.

B. FUNCTIONS

 Consists of 47 members – elected directly and individually by secret ballot – by

majority of members of General assembly
 Based on equitable geographical location - 13 African States; 13 Asia-Pacific States;
8 Latin American and Caribbean States; 7 Western European and other States; 6
Eastern European State
 Membership – open to all member states of the UN
  While electing members – take into account the contribution of candidates to the
promotion and protection of human rights
 Suspension of rights of membership by Assembly – by two third majorityof member
present and voting - if gross and systematic violations of human rights committed
 Members serve a period of three years – not eligible for immediate re-election
 First election – May 9, 2006
 Holds regular sessions three times a year – March, June and September
 Can decide to hold a special session at anytime to address human rights violations
and in emergencies, at request of one third of member states
 Has a Bureau - consists of a president and four vice-presidents - serve for a year in
accordance with the Council’s annual cycle (January – December).
 Staff from the Office of the High Commissioner for Human Rights (OHCHR) serve as
the Secretariat for the Council - providing its members with technical, substantive
and administrative support.
 In addition to the member States of the Council, observers, which include non-
member States, inter-governmental organizations, national human rights
institutions, and non-governmental organizations (NGOs), also participate actively in
Council sessions.

SUBSIDIARY BODIES – REPORTS TO COUNCIL DIRECTLY

1. Universal Periodic Review

 Council adopted a resolution – established the UPR

 UPR is a unique process – review of human rights records of all 192 member states
in Un – every 4 years. Thus, 48 states reviewed each year
 An opportunity to all states – to declare what actions taken to improve human
rights situations to overcome the challenges and enjoy human rights
 Ultimate goal of UPR – improvement of human rights situation in every country
 Assessing state’s human rights records and addressing human rights violations
wherever they have occurred
 Sims to provide technical assistance to states and enhance their capacity to deal
effectively with human rights challenges
 Reviews – conducted by UPR Working groups – consisting of 47 members of HRC –
chaired by president of Council
 Any members of UN –an take part in discussion of reviewed states
 Outcome report – prepared by Working groups – summary of actual discussion and
questions, comments and recommendations
 Working Group – met for first time – April 2008
 States have primary responsibility to implement the recommendations contained in
final outcome
 Ensures all countries are accountable for progress or failure in implementation of
these recommendations
 Second review – states need to provide information on measures taken for
implementation – if states do not cooperate with UPR – HRC will decide measures –
persistent non cooperation by state with UPR

2. Complaint Procedure
 June 18, 2007 – establishment of complaint procedure – purpose is to address
consistent patterns of gross violations of all human rights
 Based on communications received from individuals, groups or non-governmental
organizations that claim to be victims of human rights violations or that have direct,
reliable knowledge of such violations.
 Established out of the need to improve the previous procedure through increasing
impartiality, objectivity, efficiency and victim-orientation.
 Two distinct working groups - the Working Group on Communications and the
Working Group on Situations - are responsible, respectively, for examining
communications and bringing violations of human rights and fundamental freedoms
to the Council’s attention, for their further action.
 Conducts its work in a confidential manner (unless it decides otherwise), with a view
to enhance cooperation with the State concerned.
 This is the only universal complaint procedure covering all human rights and
fundamental freedoms in all UN member States. An average of 4,000
communications are submitted to the Complaint Procedure each year.

3. Special Procedures

 The Human Rights Council’s Special Procedures mandate holders are made up of
special rapporteurs, independent experts or working groups composed of five
members who are appointed by the Council and who serve in their personal
capacity.
 Undertake country visits; act on individual cases and concerns of a broader,
structural nature by sending communications to States bringing alleged violations or
abuses to their attention
 Conduct thematic studies and convene expert consultations - contribute to the
development of international human rights standards -engage in advocacy - raise
public awareness and provide advice for technical cooperation.
 These independent experts report at least once a year to the Council on their
findings and recommendations, as well as to the UN General Assembly.
 Currently there are 80 active Special Procedures mandate holders for 56 mandates -
44 thematic mandates, such as water and sanitation, arbitrary detention, the rights
of migrants, violence against women, torture and human trafficking, and 12
country-specific mandates.

4. Advisory Committee

1. functions as the “think-tank” of the Council focusing mainly on studies and

research-based advice.
2. Consists of 18 independent experts that are elected by the Council and are drawn
proportionally from the five UN regional groups. The experts are from different
professional backgrounds, all serve in their personal capacity for three-year terms -
eligible for re-election only once.
3. Held its first meeting in 2008 - meets twice a year, in February and August, for one
week each.
4. Implementation-oriented, has produced studies on a wide range of thematic issues
including corruption, post-disaster and post-conflict situations, terrorist hostage-
 taking, the right to food, missing persons and promoting human rights, among
others.
5. Has also formulated draft declarations as well as principles and guidelines on a
number of topics, some of which were endorsed by the General Assembly. These
include the principles and guidelines for the elimination of discrimination against
persons affected by leprosy and their family members.

COMMISSIONS OF INQUIRY AND FACT FINDING MISSIONS

 The Human Rights Council can also establish international commissions of inquiries,
fact-finding missions and investigations to respond to serious violations of
international human rights and humanitarian law, whether prolonged or resulting
from sudden events, and to promote accountability for such violations and counter
impunity.
 Produce hard-hitting evidence on war crimes and crimes against humanity, feeding
into formal justice processes to hold violators accountable.
 These investigative bodies are supported by Office of the High Commissioner of
Human Rights staff who provide administrative, logistical as well as security support
and expertise, and carry out missions as mandated.
 To date 31 such commissions and missions have been created by the Council with 7
currently active.

EXPERT MECHANISM ON THE RIGHTS OF INDIGENOUS PEOPLES

 Provides the Human Rights Council with thematic advice in the form of studies and
research on the rights of Indigenous peoples as directed by the Council. Its studies
have covered issues such as education, the right to participation in decision making
processes, access to justice, the role of language, cultures and the identity of
indigenous peoples, among others.
 May suggest proposals to the Council for its consideration and approval, and can
highlight good practices - may also provide member States technical advice
regarding the development of domestic policies relating to the rights of indigenous
peoples, as well as the implementation of recommendations.
 Made up of seven independent experts based on equitable geographical distribution
and gender balance - appointed by the Council for 3 year terms.
 It holds one annual session, usually in July, with the participation of a wide range of
stakeholders, whose participation is also strengthened through the Voluntary Fund
for Indigenous Populations.
 Reports to the Council once a year and produces an annual study on the status on the
rights of indigenous peoples worldwide.

EXPERT MECHANISM ON THE RIGHT TO DEVELOPMENT

  Established by the Human Rights Council in September 2019
 Mandate to provide the Council with thematic expertise on the right to development
in order to implement this right worldwide.
 Consist of five independent experts - appointed by the Council President at the
conclusion of its 43rd session in March 2020.
 The new body will meet once annually for three days in Geneva and once annually
for three days in New York, and will report once a year to the Council on its
activities.
 The meetings will be open to States, UN bodies, intergovernmental organizations,
regional organizations, national human rights institutions, academics and experts on
development issues, and NGOs.

CONSULTATIVE GROUP

 Body comprised of five ambassadors, representing each of the five regional groups
and serving in a personal capacity, charged with making recommendations for
candidates to fill positions of UN human rights experts - Special Procedures
mandate holders, members of the Expert Mechanism on the Rights of Indigenous
Peoples and the Expert Mechanism on the Right to Development.
 Carries out its work through a competitive and transparent process through which it
evaluates candidates’ expertise and experience in the field of the vacant mandate.
 Makes recommendations to the President of the Council noting their preferred
candidates, which are made public in a report prior to each regular session of the
Council.
 The appointment is finalized when the selected candidate nominated by the
President is approved by the Council during its session.

FORUM ON MINORITY ISSUES

 Established to provide a platform for promoting dialogue and cooperation on issues

pertaining to national or ethnic, religious and linguistic minorities, as well as to
provide thematic contributions and expertise to the work of the Special Rapporteur
on Minority Issues.
 Identifies and analyses best practices, challenges, opportunities and initiatives for
the further implementation of the Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic Minorities.
 Meets annually for two working days allocated to thematic discussions with a
Chairperson appointed by the President of the Human Rights Council on the basis of
regional rotation, and in consultation with regional groups.
 The Special Rapporteur on minority issues guides the work of the Forum, prepares
its annual meetings and reports on the thematic recommendations of the Forum to
the Council.
 The Forum is open to all relevant stakeholder groups, including States, the wider UN
system, intergovernmental and regional organizations, national human rights
 institutions, non- governmental organizations and affected stakeholders, among
others.

FORUM ON BUSINESS AND HUMAN RIGHTS

 Multi-stakeholder body charged with discussing trends and challenges in the

implementation of the Guiding Principles on Business and Human Rights.
 Promotes dialogue and cooperation on issues linked to business and human rights,
including challenges faced in particular sectors, operational environments or in
relation to specific rights or groups. It also identifies good practices.
 As per Council resolution 17/4, the Forum is open to all relevant stakeholder groups,
including States, the wider UN system, intergovernmental and regional
organizations, businesses, labour unions, national human rights institutions, non-
governmental organizations and affected stakeholders, among others.

FORUM ON HUMAN RIGHTS, DEMOCRACY AND RULE OF LAW

 Established by the Human Rights Council

 Provides a platform for promoting dialogue and cooperation on issues pertaining to
the relationship between these areas and to identify and analyse best practices,
challenges and opportunities for States in their efforts to secure respect for human
rights, democracy and the rule of law.
 Meets biannually for 2 working days.
 The President of the Council appoints for each session, on the basis of regional
rotation and in consultation with regional groups, a Chairperson of the Forum from
candidates nominated by members and observers of the Council.

SOCIAL FORUM

 Annual three-day meeting convened by the Human Rights Council.

 Defined as a unique space for open and interactive dialogue between civil society
actors, representatives of member States, and intergovernmental organizations, on
a theme chosen by the Council each year.
 Has addressed issues such as the impacts of economic and financial crises on efforts
to combat poverty, the adverse effects of climate change on human rights, the
promotion of the right to development, the rights of older persons, access to
medicines and the rights of persons with disabilities, among others.
 The reports produced by the Social Forum are submitted to the Council for further
consideration.
UNIT 4
1. FAILURES OF COMMITTEE ON HUMAN RIGHTS AND THE ESTABLISHMENT
OF THE HUMAN RIGHTS COUNCIL.

The Committee on Human Rights (CHR) was a subsidiary body of the United Nations
Economic and Social Council (ECOSOC) that existed from 1946 to 2006. It was responsible for
monitoring and promoting human rights around the world. However, the CHR was plagued by a
number of failures, including:

 Politicization and bias: The CHR was often politicized, with member states voting
along regional or ideological lines. This made it difficult for the CHR to take action
against countries with poor human rights records, especially those that were supported
by powerful member states.
 Ineffectiveness: The CHR's recommendations were not binding on member states, and it
had no power to enforce them. This meant that the CHR was often unable to bring about
real change in countries with serious human rights problems.
 Selectivity: The CHR often focused on the human rights records of certain countries,
while ignoring the abuses of others. This was often due to political pressure from
member states.

In 2006, the UN General Assembly established the Human Rights Council (HRC) to replace the
CHR. The HRC was created with the goal of addressing the failures of the CHR and improving
the effectiveness of the UN's human rights system.

The HRC has a number of features that are designed to address the failures of the CHR,
including:

 Universal periodic review (UPR): The UPR is a mechanism for reviewing the human
rights records of all UN member states on a regular basis. This helps to ensure that no
country is overlooked.
 Special procedures: The HRC has a number of special procedures, which are
independent experts who monitor and report on specific human rights issues or countries.
This helps to ensure that the HRC has a deep understanding of human rights problems
around the world.
 Enhanced voting requirements: The HRC has a number of enhanced voting
requirements, which make it more difficult for member states to use their votes to protect
countries with poor human rights records.

Despite these reforms, the HRC has also been criticized for some of the same failures as the
CHR, including politicization, bias, and selectivity. However, the HRC has also made some
important achievements, such as establishing the UPR and creating new special procedures to
address emerging human rights issues.

Overall, the HRC is a significant improvement over the CHR. However, it is still a work in
progress, and there is still room for improvement.
 2. UNIVERSAL PERIOD REVIEW PROCESS AND DRAWBACKS.

Universal Period Review (UPR) process

The Universal Periodic Review (UPR) is a mechanism of the United Nations Human Rights
Council (HRC) that involves a periodic review of the human rights records of all 193 UN
Member States. The UPR is a cooperative process based on dialogue and peer review. The goal
of the UPR is to improve the human rights situation in every country.

The UPR process is divided into three stages:

1. Preparation: The country under review prepares a national report on its human rights
record. The report should include information on the country's laws, policies, and
practices, as well as on the challenges and obstacles it faces in promoting and
protecting human rights. The report should also include information on the country's
progress in implementing the recommendations it received from the previous UPR
review.
2. Review: The country under review presents its national report to the UPR Working
Group, which is composed of all 47 members of the HRC. The Working Group also hears
from other stakeholders, including UN agencies, non-governmental organizations, and
national human rights institutions. The Working Group then engages in a dialogue with
the country under review, asking questions and providing comments.
3. Adoption: The UPR Working Group adopts an outcome report for each country under
review. The outcome report includes the country's national report, the information
provided by other stakeholders, and the recommendations made by the Working
Group. The outcome report is then presented to the HRC for adoption.

The UPR process is designed to be comprehensive, inclusive, and transparent. It is also

designed to be flexible and adaptable to the specific needs of each country.

Drawbacks of the UPR process

While the UPR process has been praised for its many strengths, it also has some drawbacks.
Some of the most common criticisms of the UPR include:

 Lack of enforcement: The UPR process is voluntary and there is no mechanism to

enforce the recommendations that are made. This means that countries can choose to
ignore the recommendations of the UPR if they wish.
 Political pressure: Some countries may use the UPR process to exert political pressure
on other countries. For example, a country may use the UPR to criticize the human
rights record of a rival country.
 Unequal participation: Not all countries participate equally in the UPR process. Some
countries may have more resources to devote to the UPR process than others.
Additionally, some countries may be more willing to engage in open and honest
dialogue about their human rights records than others.
 Lack of follow-up: There is no formal mechanism to follow up on the implementation of
the recommendations that are made during the UPR process. This means that it can be
difficult to assess the impact of the UPR process on the human rights situation in each
country.
Despite its drawbacks, the UPR process is a valuable tool for promoting and protecting human
rights. It provides a forum for countries to discuss their human rights records and to learn from
each other's best practices. The UPR process also helps to raise awareness of human rights
issues and to put pressure on governments to improve their human rights records.

Overall, the UPR process is a positive development for human rights. It is a unique mechanism
that allows all countries to be held accountable for their human rights records. While the UPR
process has some drawbacks, it is a valuable tool for promoting and protecting human rights
around the world.
UNIT 5
Treaty Based Bodies under the United Nations
▪ Basic structural understanding of various UN treaty based bodies.

1. WHAT ARE THE TREATY BODIES?

 The human rights treaty bodies are committees of independent experts that
monitor implementation of the core international human rights treaties.
 Each State party to a treaty has an obligation to take steps to ensure that everyone
in the State can enjoy the rights set out in the treaty.
 There are ten human rights treaty bodies composed of independent experts of
recognized competence in human rights, who are nominated and elected for fixed
renewable terms of four years by State parties.
 The treaty bodies meet in Geneva, Switzerland. All the treaty bodies receive support
from the Human Rights Treaties Division of OHCHR in Geneva.

2. WHAT THE TREATY BODIES DO?

 The treaty bodies perform a number of functions in accordance with the provisions
of the treaties that established them.
 Their thematic focus and their working methods all differ slightly, but in general,
they:
a. consider States parties' reports;
b. consider individual complaints;
c. conduct country inquiries;
d. adopt general comments and organize thematic discussions to interpret the
provisions of their treaty or treaties;
e. attend the annual meeting; and
f. contribute to the treaty body strengthening process.
 In addition to States parties’ reports, the treaty bodies may receive information on a
country’s human rights situation from other sources, including
a. national human rights institutions (NHRIs),
b. International and national civil society organizations (CSOs),
c. United Nations entities,
d. other intergovernmental organizations,
e. professional groups and academic institutions.
f. Most committees allocate specific plenary time to hearing submissions from
CSOs and UN entities.
 In the light of all the information available, the relevant treaty body examines the
report in the presence of a State party’s delegation. Based on this constructive
dialogue, the Committee publishes its concerns and recommendations, referred to
as ‘concluding observations’.

3. STATES PARTIES' REPORTS

 When a State ratifies a treaty, it has a legal obligation to implement the rights
recognized in that treaty. However, becoming a party to a treaty is only the first
step, because recognition of rights on paper is not enough to guarantee that they
will be enjoyed in practice.
 So, in addition to their obligation to implement the substantive provisions of the
 treaty, each State party is also under an obligation to submit periodic reports to the
relevant treaty body on how the rights are being implemented.

4. INDIVIDUAL COMPLAINTS
 Six of the committees
a. Covenant on Civil and Political Rights (CCPR),
b. Convention on the elimination of All Forms of Racial Discrimination (CERD),
c. Convention against Torture (CAT),
d. Convention on Elimination of All Forms of Discrimination against Women (CEDAW),
e. Committee on the Rights of Persons with Disabilities (CRPD),
f. and Committee on Enforced Disappearances, CED
g. can receive petitions from individuals.
 Any individual who claims that their rights under the treaty have been violated by a
State party to that treaty may bring a communication before the relevant committee,
provided that the State has recognized the competence of the committee to receive
such complaints, and that domestic remedies have been exhausted.
 In addition, three treaties
a. the International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families,
b. the Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, and
c. the Optional Protocol to the Convention on the Rights of the Child on a
communications procedure
contain provisions for individual communications to be considered by their respective
committees, but these are not yet operative.

5. COUNTRY INQUIRIES
Six of the committees
Ø Committee on Economic, Social and Cultural Rights(CESCR),
Ø Convention against Torture(CAT),
Ø Convention on Elimination of All Forms of Discrimination against Women,
(CEDAW),
Ø Committee on the Rights of Persons with Disabilities,(CRPD),
Ø Committee on Enforced Disappearances (CED), and
Ø Convention on the Rights of the Child(CRC)
when the relevant Optional Protocol enters into force, may initiate country
inquiries if they receive reliable information containing well-founded indications of
serious, grave or systematic violations of the conventions in a State party.

6. GENERAL COMMENTS AND DAYS OF GENERAL DISCUSSION

 The Committees also solicit input, organize discussion days and events, and publish
their interpretation of the content of human rights provisions (known as general
comments or general recommendations) on thematic issues or methods of work.
 These cover a wide range of subjects, from the comprehensive interpretation of
substantive provisions, such as the right to life or the right to adequate food, to
general guidance on the information that should be submitted in State reports
relating to specific articles of the treaties.
7. THE ANNUAL MEETING OF CHAIRPERSONS
 The annual meeting of the Chairpersons of the Human Rights treaty bodies provides
a forum for members to discuss their work, share best practices, and consider ways
to enhance the effectiveness of the treaty body system as a whole.
UNIT 6
International Covenant on Civil and Political Rights (ICCPR)

 The International Covenant on Civil and Political Rights (ICCPR) is a treaty that
commits states parties to respect the civil and political rights of individuals,
including the right to life, freedom of religion, freedom of speech, freedom of
assembly, electoral rights and rights to due process and a fair trial.
 It was adopted by United Nations General Assembly on 16 December 1966 and
entered into force 23 March 1976
 The Covenant has 173 parties.
 The ICCPR is considered a seminal document in the history of international law and
human rights, forming part of the International Bill of Human Rights, along with
the International Covenant on Economic, Social and Cultural Rights (ICESCR) and
the Universal Declaration of Human Rights (UDHR)
 The ICCPR (International Covenant On Civil and Political Rights) has its roots in the
same process that led to the Universal Declaration of Human Rights.
 A "Declaration on the Essential Rights of Man" had been proposed at the 1945 San
Francisco Conference which led to the founding of the United Nations, and
the Economic and Social Council was given the task of drafting it.
 Early in the process, the document was split into a declaration setting forth general
principles of human rights, and a convention or covenant containing binding
commitments.
 The former evolved into the UDHR and was adopted on 10 December 1948
 Drafting continued on the convention, but there remained significant differences
between UN members on the relative importance of Civil and Political Rights
versus Economic, Social and Cultural Rights.
 These eventually caused the convention to be split into two separate covenants,
"one to contain civil and political rights and the other to contain economic, social
and cultural rights.”
 The two covenants were to contain as many similar provisions as possible and be
opened for signature simultaneously.
 Each would also contain an article on the right of all peoples to self-
determination
 The first document became the International Covenant on Civil and Political Rights
and the second the International Covenant on Economic, Social and Cultural
Rights.
 The drafts were presented to the UN General Assembly for discussion in 1954 and
adopted in 1966.
 As a result of diplomatic negotiations, the International Covenant on Economic,
Social and Cultural Rights was adopted shortly before the International Covenant on
Civil and Political Rights.
 Together, the UDHR and the two Covenants are considered to be the foundational
human rights texts in the contemporary international system of human rights.

INDIA AND THE ICCPR(COMPARE THE PROVISIONS OF INDIAN CONSTITUTION AND ICCPR)
  India is a party to the International Covenant on Civil and Political Rights
 The Constitution of India guarantees the Right to Protest, publicly question and
force the government to answer as per Article 19.
 Article 19 (1) (a) states that all citizens shall have the right to freedom of speech and
expression.
 Article 19 (1) (b) states that all citizens shall have the right to assemble peaceably
and without arms.
 However, the State can impose reasonable restrictions on the exercise of right of
assembly on two grounds, namely, sovereignty and integrity of India and public
order including the maintenance of traffic in the area concerned.

1. Nature of Rights under the ICCPR.

The nature of rights under the International Covenant on Civil and Political Rights (ICCPR) is
complex and has been the subject of much debate. However, there are some general principles
that can be identified.

First, the ICCPR is a treaty, which means that it is an international agreement between states.
As such, the rights protected by the ICCPR are legal rights, not just moral or aspirational goals.

Second, the ICCPR is a bill of rights, which means that it enumerates a list of specific rights that
are guaranteed to all individuals. These rights are not exhaustive, but they do represent a core
set of rights that are essential to human dignity and well-being.

Third, the ICCPR is a universal instrument, which means that it applies to all people, regardless
of their nationality, race, religion, gender, or any other status. This principle of universality is
reflected in the opening words of the ICCPR, which states that "all human beings are born free
and equal in dignity and rights."

Fourth, the ICCPR is a living document, which means that its interpretation and application can
evolve over time. This is reflected in the fact that the ICCPR has been amended several times
since its adoption in 1966.

The nature of rights under the ICCPR can also be understood in terms of their different types.
The ICCPR protects a wide range of rights, including:

 Civil rights: These rights guarantee fundamental freedoms and liberties, such as the
right to life, the right to freedom from torture, the right to freedom of expression, and
the right to a fair trial.
 Political rights: These rights guarantee the right to participate in government and public
affairs, such as the right to vote and run for office, and the right to freedom of assembly
and association.
 Equality rights: These rights guarantee that all people are equal before the law and are
entitled to equal protection from discrimination.
It is important to note that the ICCPR does not recognize any hierarchy of rights. All of the
rights protected by the ICCPR are equally important and must be respected.

The nature of rights under the ICCPR can also be understood in terms of their relationship to
other legal principles. For example, the ICCPR is grounded in the principle of human dignity.
This principle holds that all human beings have inherent dignity and are worthy of respect. The
ICCPR also recognizes the principle of non-discrimination, which holds that all people are
entitled to equal protection under the law.

The nature of rights under the ICCPR is complex and multifaceted. However, the basic
principles of universality, equality, and non-discrimination are essential to understanding the
true nature of these rights.

Here are some additional points about the nature of rights under the ICCPR:

 The ICCPR protects both negative and positive rights. Negative rights are freedoms
from government interference, such as the right to freedom of expression and the right
to freedom of assembly. Positive rights are rights to affirmative action from the
government, such as the right to education and the right to an adequate standard of
living.
 The ICCPR protects both individual and collective rights. Individual rights are rights
that belong to individuals, such as the right to life and the right to freedom of religion.
Collective rights are rights that belong to groups of people, such as the right to self-
determination and the right to minority rights.
 The ICCPR recognizes that some rights are absolute, while others can be restricted in
certain circumstances.For example, the right to life is an absolute right, while the right
to freedom of expression can be restricted in order to protect national security or
public order.

The ICCPR is a landmark document that has had a profound impact on the development of
international human rights law. It has helped to promote and protect human rights around the
world, and it continues to be an important tool for the advancement of human dignity.

2. DOCTRINE OF MARGIN OF APPRECIATION.

The doctrine of margin of appreciation is a legal doctrine that gives national authorities a
certain degree of discretion in interpreting and applying international human rights law. It is
based on the recognition that different countries have different legal systems, cultures, and
values, and that it would be inappropriate for an international court to impose a uniform set of
standards on all countries.

The margin of appreciation is not absolute, however. National authorities must still exercise
their discretion in a way that is consistent with the fundamental principles of international
human rights law. The European Court of Human Rights (ECtHR), for example, has developed a
number of criteria for assessing whether a national authority has exceeded its margin of
appreciation, including:

 The nature of the right involved: Some rights, such as the right to life and the right to
freedom from torture, are considered to be fundamental rights that enjoy a very
 narrow margin of appreciation. Other rights, such as the right to freedom of expression
and the right to freedom of assembly, enjoy a wider margin of appreciation.
 The importance of the interest being protected: The more important the interest being
protected, the narrower the margin of appreciation. For example, the ECtHR has held
that the margin of appreciation for restrictions on freedom of expression is narrower in
relation to political speech than it is in relation to commercial speech.
 The quality of the reasoning of the national authority: The ECtHR will give more weight
to the decisions of national authorities that are well-reasoned and based on a careful
consideration of the relevant human rights principles.

The doctrine of margin of appreciation is an important tool for balancing the need to protect
individual rights with the need to respect the sovereignty of states. It allows national
authorities to interpret and apply international human rights law in a way that is consistent
with their own legal systems, cultures, and values, while still ensuring that fundamental human
rights are protected.

Here are some examples of how the doctrine of margin of appreciation has been applied by the
ECtHR:

 In the case of Handyside v. United Kingdom (1976), the ECtHR held that the UK
government's decision to ban a book on sexual practices did not violate the right to
freedom of expression. The Court found that the government had a legitimate interest
in protecting public morals, and that its decision was based on a careful consideration
of the relevant human rights principles.
 In the case of Müller and Others v. Switzerland (2004), the ECtHR held that
Switzerland's ban on female circumcision violated the right to freedom of religion. The
Court found that the ban was not necessary to protect any legitimate public interest,
and that it disproportionately interfered with the religious freedom of Muslim parents.
 In the case of Zakharov v. Russia (2015), the ECtHR held that Russia's law prohibiting the
promotion of non-traditional sexual relationships among minors violated the right to
freedom of expression. The Court found that the law was not necessary to protect any
legitimate public interest, and that it disproportionately interfered with the freedom of
expression of LGBT rights activists.

The doctrine of margin of appreciation is a complex and nuanced doctrine. It is important to

note that the ECtHR has not developed a single, definitive test for assessing whether a national
authority has exceeded its margin of appreciation. Instead, the Court takes a case-by-case
approach, weighing all of the relevant factors in each case.
 3. WORKING OF THE HUMAN RIGHTS COMMITTEE

The Human Rights Committee is a body of independent experts established under the
International Covenant on Civil and Political Rights (ICCPR). Its primary function is to monitor
the implementation of the Covenant by the States parties. Here is an overview of how the
Human Rights Committee works:

1. **Reporting Procedure**:
 - States parties to the ICCPR are required to submit periodic reports to the Human Rights
Committee, usually every four or five years, detailing the measures they have taken to
implement the Covenant's provisions within their respective jurisdictions.
- These reports cover various aspects of civil and political rights, such as freedom of
expression, right to a fair trial, freedom from torture, etc.

2. **List of Issues**:

- Upon receiving a State party's report, the Committee may issue a list of issues, seeking
further clarification or specific information on certain areas of concern.

3. **Constructive Dialogue**:

- The Committee holds periodic sessions throughout the year, during which it examines
the reports and engages in a constructive dialogue with the State party representatives.
These sessions are typically held in Geneva, Switzerland.

4. **Concluding Observations**:

- Following the examination, the Committee issues concluding observations which are a
set of recommendations, comments, and concerns regarding the State party's
compliance with the Covenant.
- These observations are shared with the State party and may include recommendations
for specific actions or policies to improve human rights conditions.

5. **Follow-Up Procedure**:

- The Committee may also engage in follow-up procedures to monitor the

implementation of its recommendations. It can request additional information or
updates from the State party.

6. **Individual Communications**:

- The Committee can consider individual communications (complaints) from individuals

or groups who claim that their rights under the ICCPR have been violated by a State
party. These communications are treated confidentially.

7. **General Comments and Guidelines**:

- In addition to its examination of State reports, the Committee issues general comments
on specific articles or themes within the Covenant. These comments provide
authoritative guidance on the interpretation and application of the Covenant's
provisions.

8. **Optional Protocols**:
 - The Committee also oversees the implementation of the Optional Protocol to the
ICCPR, which allows individuals to bring complaints (communications) directly to the
Committee after exhausting domestic remedies.

9. **Cooperation with Other UN Bodies**:

- The Committee collaborates with other United Nations bodies and agencies, as well as
regional human rights mechanisms, to promote and protect civil and political rights
globally.

10. **Annual Reports**:

- The Committee submits annual reports to the United Nations General Assembly and
may also make recommendations on specific issues related to the protection of civil and
political rights.
UNIT 7

International Covenant on Economic, Social and Cultural Rights (ICESCR)

▪ Evaluation of the scope of various economic, social and cultural rights under the
covenant.
▪ Rights of minorities to protect their culture vis a vis state interference.

1. International Covenant on Economic, Social and Cultural rights

The ICESCR is a multilateral treaty adopted by the United Nations General Assembly on 16
December 1966 as part of the larger resolution on Universal Declaration of Human Rights. It
aspires to provide non-self governing and trust territories and individuals , labour rights, right
to health , right to education and the right to an adequate standard of living

2. International Covenant on Civil and Political Rights

The ICCPR is a multilateral treaty adopted by the United Nations on December 16, 1966, and
came into force on March 23, 1976. The Covenant commits parties to respect the civil and
political rights of individuals, which includes, right to freedom of speech and expression, right
to freedom of religion, Freedom of assembly, electoral rights, due process and a fair trial. As of
2019 the treaty has 173 parties and six signatories that are yet to ratify.

3. Objective
The international human rights movement was strengthened when the United Nations General
Assembly adopted the Universal Declaration of Human Rights in 1948, this combined with the
ICCPR and the ICESCR form the International Bill of Human Rights. The major objective of these
Covenants is to ensure that each person is guaranteed these rights without any discrimination.

4. Importance
The ICCPR was a trailblazer in the field of Human Rights enforcements, this is because the
Universal Declaration of Human Rights adopted in 1948 was majorly persuasive in nature and
didn’t have any binding powers as such. Therefore, the ICCPR was made with the intent of
bearing legal power, in the sense that those countries which sign and ratify the treaty, have to
then abide by its provisions and will be held liable for violation of those rights. Many countries
that ratified the ICCPR also agreed that the Human Rights Committee may investigate
allegations by individuals and organisations that the state has violated their rights. Article
28 of the ICCPR established a Human Rights Committee , which shall consist of eighteen
members and shall carry out the following function:

 Reporting;
 Considering Individual communications- the committee can receive individual
communications from any individual under the jurisdiction of a State that is party to
the first optional Protocol. The communication has to be made by the person who
 alleges that his rights have been violated or any person on his behalf. The
communication cannot be anonymous. The person has to show that domestic
remedies have been exhausted, and the complaint should not be under
consideration of any other international body.
 The committee also has the right to issue general comments on the interpretation
and usage of different Articles. This authority has been given to the committee
under Article 40.
 Under Article 41 of the ICCPR, one State party may submit to the committee that
another State party is not fulfilling its obligations, under the covenant. This provision
is only applicable when both countries have recognized the competence of the
committee in this arena.

5. Main provisions
Article 1 – Allows for the right of people to “self-determination”, including right to freely
determine their political status. It also includes a negative right, that people should not be
deprived of their means of substance.

Article 2 – Each State party undertakes to respect and ensures the rights provided by this
Covenant to everyone that comes under its jurisdiction, without any distinction of any kind
such as race, gender, caste, sex, language, religion, political or other opinion. This Article also
mandates that each State party has to take legislative measures for implementation of the laws
in this covenant, unless the same has already not been done. This Article also mandates that
every such person whose rights are violated has to be provided with an appropriate remedy,
even if such violation has been committed by persons acting in their official capacity. To further
ensure that the person claiming such a remedy shall have his right adjudged by a person
clothed with judicial or administrative authority. To also ensure that such remedies are
properly enforced when granted.

Right to physical integrity

Articles 6– it provides for a person’s “inherent Right to life”, and requires the same to be
protected by the law. It states that this is the most supreme right, and no derogation of this is
ever possible. It doesn’t prohibit death penalty, but restricts it to the most serious crimes.

Article 7– it prohibits human degrading punishment, derogation of this is also strictly

prohibited.

Article 8– Prohibits slavery and forced labour.

Right to Liberty and security of a person

Article 9– provides for liberty and security of a person, prohibits arbitrary arrest and detention,
it also provides to the people arrested recourse to courts and a fair trial for curbing their
liberty.
Article 10 – This provides that whoever has been arrested whether it be for a crime, psychiatric
care or otherwise shall be treated with humane condition, this Article complements Article 7
that provides for humane punishments. It also requires the set up for Juvenile Prisons for
separating them from adults.

Article 11 – Prohibits the use of punishment for breach of contract.

Procedural fairness and rights of accused

Article 14- It provides for a fair trial to everyone, Article 14.1 states that everyone should be at
an equal standing before the courts, and all such hearings should take place in an open court,
closed hearings only being allowed for privacy matters etc. The Article also provides for other
rights of the accused in a trial i.e. presumption of innocence, forbids double jeopardy, right of
the accused to appeal in a higher court, right to be protected against self-incrimination and fair
and speedy trial.

Article 15– It prevents prosecutions under Ex-post facto law and imposition of retrospective
criminal penalties, and requires imposition of lesser punishment where criminal sentences
have changed between the time of commission of crime and the date of the judgement.

Article 16– requires the state to recognize everyone as a person before the law.

Individual Liberties

Article 12– This provides for freedom of movement, including the right of persons to choose
their residence and to leave or return to their country.

Article 13- Forbids arbitrary expulsion of resident aliens and requires such decisions to be
appealed and reviewed

Article 17– Mandates the right of privacy, under Article 17.1 it specifically protects privacy to
consensual sexual activity, hence nullifying restrictions on homosexual behaviour. This also
protects people from unlawful attacks to their honor and reputation.

Article 18 – Mandates freedom of religion and belief

Article 19 – mandates Freedom of expression

Article 20 – Provides that any propaganda for war shall be prohibited by law.

Article 21 & 22 – Article 21 provides for the right of peaceful assembly, no restrictions shall be
imposed on the same other than those which have been imposed for integrity and peace of a
democratic society. Article 22 provides that everyone shall have the right to form associations,
it also provides for restrictions in the same manner as the previous Article. It also provides that
members of the International Labour Organization, shall not have or pass any law that
prejudices the freedom that is guaranteed to citizens in that Convention.

Article 23 – The right of men and women to marry shall be recognized, and this shall not be
done without the consent of both the parties. Each State shall also take appropriate steps to
ensure equality of rights and responsibilities between the parties during and even after its
dissolution.

Article 24 – Right of a child to acquire nationality immediately after birth and also have a
name.

Article 26 – every person shall be equal before the law and be treated equally without any
discrimination, the state shall also guarantee to its citizens equality on the grounds of religion,
race, caste, sex, national, social origin etc.

Article 27 – In States where religious or linguistic minorities exist, members of these

communities shall be allowed to enjoy their own culture and to profess and practise their own
religion and use their language.

6. Opinion protocols

There are two opinion Protocols to the Covenant. The first one established an individual
complaints mechanism allowing individuals to complain to the Human Rights Committee about
violations of the Covenant. As of 2019, there are 116 countries that are party to the first
Protocol. The second opinion Protocol abolishes the death penalty, however, it allows the
States to implement death penalty for the most serious crimes of military nature, committed
during wartime. As of 2019, the second opinion Protocol has 87 parties.

7. India and the ICCPR

The body that regulates and protects human rights in India is the National Human Rights
Commission (NHRC). For making a Treaty as binding in any particular State, it has to ratify the
same, during this time any country can also make some declarations. In this regard, India has
also made certain declarations with respect to the ICCPR.

It has been stated by the government while ratifying the Treaty that Article 9 of the treaty
works in consonance with Article 22of the Constitution of India, which provides for preventive
and punitive detention laws. In this regard, it has been explicated by the government that
there is no enforceable right under the Indian legal systems to provide compensation to victims
of unlawful arrest. With respect to Article 13 of the ICCPR which prohibits expulsion of resident
aliens, the government of India reserves its right to apply its own domestic laws. India has also
complied with the principles of the ICCPR and established the National Human Rights
Commission under the Protection of Human Rights Act in the year 1993. The NHRC has wide
ranging powers and all human rights violation complaints can be made to the Commission
itself. The Commission can send in recommendations to courts with respect to human rights
cases, and can take suo moto cognizance of these issues.

▪ RIGHTS OF MINORITIES TO PROTECT THEIR CULTURE VIS A VIS STATE

INTERFERENCE.

The rights of minorities to protect their culture vis-à-vis state interference are enshrined in a
number of international human rights instruments, including the International Covenant on
Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms
of Racial Discrimination (ICERD), and the United Nations Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities (UNDM Declaration).

The ICCPR guarantees the right to freedom of expression, which includes the right to freedom
of opinion and the right to freedom of expression. This right encompasses the right to use
one's own language, to practice one's own religion, and to observe one's own customs and
traditions. The ICERD prohibits discrimination on the basis of race, color, descent, or national or
ethnic origin. This prohibition extends to discrimination in the field of culture. The UNDM
Declaration recognizes the right of minorities to enjoy their own culture, to practice their
religion, and to use their own language.

The right of minorities to protect their culture is not absolute, however. States have a
legitimate interest in promoting national unity and social cohesion. In some cases, states may
need to restrict the rights of minorities in order to achieve these goals. However, any such
restrictions must be necessary and proportionate.

The following are some examples of how states can respect and protect the rights of minorities
to protect their culture:

 Allowing minorities to use their own language in education and government.

 Supporting minority language media and cultural institutions.
 Protecting minority religious and cultural sites.
 Promoting minority cultures through public education and awareness campaigns.
 Consulting with minorities on policies that affect their culture.

States must also avoid interfering with the culture of minorities in ways that are discriminatory
or arbitrary. For example, states should not ban minority languages or religions, or force
minorities to assimilate into the dominant culture.

Here are some examples of state interference with the culture of minorities:

 Banning minority languages in education or government.

 Suppressing minority language media and cultural institutions.
 Demolishing minority religious and cultural sites.
 Promoting the dominant culture to the exclusion of minority cultures.
 Imposing restrictions on minority religious practices or cultural traditions.

The right of minorities to protect their culture is an important human right. States have a duty
to respect and protect this right, and to avoid interfering with the culture of minorities in ways
that are discriminatory or arbitrary.
UNIT 8
International Convention on Elimination of Racial Discrimination. (ICERD)

 Understanding various rights under the ICERD

 Evaluation of the committee and its decision relating to racial
discrimination.

BACKGROUND

 The prohibition against racial discrimination is fundamental and deeply entrenched in

international law.
 It has been recognized as having the exceptional character of jus cogens(certain
fundamentals/ principles of International law) which creates obligations erga
omnes(towards everyone), an obligation from which no derogation is acceptable.
 The International Convention on the Elimination of All Forms of Racial Discrimination
(ICERD) is the centerpiece of the international regime for the protection and
enforcement of the right against racial discrimination.
 The early years of the United Nations were a time of extraordinary hope, energy, and
promise. The end of WWII came with enormous lessons for all of humanity and a sense
that those lessons could be implemented to save the globe from a repeat of similar
calamities.
 Hopes were invested in the creation of a new institution that would diffuse disputes
between countries and redirect them to conference tables for dialogue and
negotiations based on principles of sovereign equality.
 At the same time, groups of people within countries were seeing the changing world as
finally opening the door for their compressed aspirations to be realized. Thus began the
next period of extraordinary change throughout the world; a period that called on the
United Nations to make real its promise of human rights and equality.
 African States newly emerging from colonial rule into independence and gaining
membership in the United Nations began setting an agenda for the United Nations that
included an increasing focus on decolonization, independence for South West
Africa/Namibia, an end to apartheid in South Africa and codification of the customary
law against racial discrimination
 While the principle of non-discrimination appears in Article 1 of the Charter of the
United Nations and is enshrined in the Universal Declaration of Human Rights, it was
felt that this crucial rule of international law should receive due prominence in a legal
instrument which elaborated the definitions and obligations in stemming from it.

THE CONVENTION

 ICERD was adopted in the 1965 and entered into force in 1969. It remains the principal
international human rights instrument defining and prohibiting racial discrimination
in all sectors of private and public life.
By becoming a party to ICERD, States have declared that racial discrimination should be
outlawed and have pledged themselves to abide by the terms of the Convention.
 ICERD authorises the establishment of an international committee of experts to oversee
Member State compliance with the treaty, the Committee on the Elimination of Racial
Discrimination (CERD) (articles 2 and 8).
 Parties to ICERD must periodically submit written reports which detail their country’s
progress toward fulfilling the goals of ICERD (article 9).
 During the review period, Member States also send government officials to answer the
questions of committee members.
 To receive added insight into country conditions, CERD also receives reports provided
by United Nations agencies, national institutes of human rights, and international and
domestic NGO’s.
 Based on the country review, CERD issues an analysis and list of recommendations
called Concluding Recommendations that are specific to that State party. Additionally,
when deemed useful and appropriate, CERD also issues General Recommendations
(G.R.) seeking to clarify or elucidate the full and appropriate interpretation of provisions
of the Convention. General Recommendations are considered
authoritativeinterpretations of the Convention.
 Based on the country review, CERD issues an analysis and list of recommendations
called Concluding Recommendations that are specific to that State party. Additionally,
when deemed useful and appropriate, CERD also issues General Recommendations
(G.R.) seeking to clarify or elucidate the full and appropriate interpretation of provisions
of the Convention. General Recommendations are considered
authoritativeinterpretations of the Convention.
 The Convention also authorizes CERD to consider Communications from individuals that
make claims that they have suffered injuries as a consequence of the failure of the State
party to fulfill its obligations under the Convention. Jurisdiction to consider such
Communications is dependent on a prior and separate ratification of article 14 of the
Convention. Articles 11 to 13 give jurisdiction to CERD to consider Communications by
one State party against another State party, a unique procedure which requires no
separate ratification by the respondent State party.
 The Convention also authorizes CERD to consider Communications from individuals that
make claims that they have suffered injuries as a consequences of the failure of the
State party to fulfill its obligations under the Convention. Jurisdiction to consider such
Communications is dependent on a prior and separate ratification of article 14 of the
Convention. Articles 11 to 13 give jurisdiction to CERD to consider Communications by
one State party against another State party, a unique procedure which requires no
separate ratification by the respondent State party.

KEY PROVISIONS OF THE CONVENTION

A. DEFINITION OF RACIAL DISCRIMINATION

Ø The Convention defines “racial discrimination” as: “any distinction, exclusion,

restriction or preference based on race, colour, descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field of public
life” (article 1).
Ø This article makes several important points. First, it describes the prohibited
basis for discrimination: “race, colour, descent or national or ethnic origin.”
Groups or persons who may be perceived as having the traits in this list are
protected from discrimination under ICERD. This list is often referred to asthe
protected groups with reference to ICERD.
Ø CERD has adopted General Recommendations to clarify that the ICERD
protections in article 1 include groups not explicitly named but who fall within
the Convention’s broad criteria, such as women (G.R. 25), indigenous persons
(G.R. 23), the Roma (G.R. 27), Dalits (G.R. 29), non-citizens including refugees
(G.R. 30), African descendants, particularly those in the diaspora (G.R. 34),
Muslims subjected to Islamophobia, and more generally persons whose religious
identity has been “racialized,” that is used as a basis fordiscrimination (G.R. 32).
Ø Second, article 1 lists the categories of rights that may not be infringed by
discriminatory conduct:

- human rights and fundamental freedoms in the political, economic, social,

cultural or any other field of public life.
- These categories of rights are later elaborated on in articles 5 and 6.
- Article 5 of the Convention lists civil and political rights such as the right to
political participation, freedom of speech, and freedom of movement.
- Article 5 also elaborates economic, social, and cultural rights, such as rights
relating to work, housing, health care, and education. This list is not exhaustive.
Under article 5, State parties must guarantee “equality before the law, notably
in the enjoyment of the following rights.” Further, article 2, para.1 (c) requires
States to nullify any law or practice which perpetuates racial discrimination.

Ø Other provisions the Convention make clear that ICERD seeks to “eliminate
racial discrimination in all areas of life.”
Ø Article 6 guarantees effective protection from discrimination and remedies
through equal access to competent and fair tribunals, prompt investigationsand
prosecutions followed by just and adequate reparations.
Ø Third, article 1 describes the elements of the violation termed “racial
discrimination”. The term “purpose or effect” in article 1 refers to the nature of
the violation not being dependent on whether the action was taken with
discriminatory purpose or rather, unintentionally created a discriminatory
impact or effect.
Ø CERD has explained that to determine whether an action is discriminatory it
must have “an unjustifiable disparate impact upon a group distinguished byrace,
colour, descent, or national or ethnic origin” (G.R. 14).
Ø The fourth important aspect of the definition of racial discrimination is the
exception to the definition found in article 1(4).
Ø If distinctions between protected and other groups in society are being made for
the sole purpose of correcting prior existing inequalities, then those actions shall
not be considered discriminatory under the Convention so long as those
corrective measures are only temporary re-alignments, as opposed to creating
new permanent rights.
Ø Under the Convention, laws or policies can be considered racially discriminatory
even if the initial cause did not have that purpose and might otherwise be
totally justified. A State party has an obligation under the Convention to correct
 the inequity if it exists within the jurisdiction of the State even if it did not create
the circumstances that led to the discriminatory situation.
Ø Many of the structural barriers to racial equality are the result of facially neutral
laws and policies. They may be policies that appear to meet a standard of
“fairness” when measured in a context that excluded, perhaps mindlessly,
certain population groups.
Ø Viewed from a different perspective or in a changed context, the reality of
exclusion may become clear. Then, failure to take measure to change that
reality perpetuates racial discrimination.
Ø Under article 1, the standard of equality embraced by ICERD is substantive
equality, that is, equality of outcomes rather than merely procedural equality of
opportunity.

B. STATE OBLIGATIONS

Ø The States ratifying the Convention undertake to eliminate racial discrimination

through all means, including legislation, policies, educational initiatives, or
prosecutions.
Ø Each State party must act to end racial discrimination “in all its forms”, to take
no action as a State, and to ensure that no public entity does so whether
national or local.
Ø States must not sponsor, defend, or support racial discrimination in any way.
States must immediately review and rescind or nullify existing laws that create
or perpetuate racial discrimination.
Ø The prohibition against racial discrimination is absolute. There is no
circumstance under which a derogation is allowed, and delays are not
tolerated.
Ø States also must take steps to immediately end discrimination by any person or
organization and further, must encourage “integrationist
multiracial”organizations or movements.
Ø Importantly, the Convention requires that situations of racial inequality be
corrected by government initiatives termed “special or concrete measures”.
Depending on the country, such measures may also be referred to as
affirmative action or positive action.
Ø Article 2(2) of ICERD mandates States to implement special measures for the
sole purposes of eliminating substantive or de facto discrimination. The use of
positive measures is central to addressing ICERD violations (G.R. 32).
Ø Those measures may be undertaken by legislation, regulations, tax initiatives or
special incentives to private entities like schools or businesses.
Ø Eliminating substantive discrimination often requires paying attention to groups
that have suffered historical or persistent prejudice, measuring or assessing the
gap in their “full and equal enjoyment of their rights” as against the majority
population and then developing programs targeted to close that gap. Such
measures are acceptable if they are temporary and proportional to address de
facto or substantive discrimination.
Ø Some countries, however, have been reluctant to undertake positive measures.
The reluctance may be a fear of potential political backlash. Positive measures
to redress discrimination must, by definition, target disadvantaged groups in
society for what may appear to be preferential favors.
Ø Disadvantaged groups usually lack a prominent political voice. A well-
considered strategy, however, should include substantial prior public education
about why such measures are fair on the basis of remediation and how equality
and full inclusion benefits the entire society. Also, it must be made clear that
the programs are of a temporary nature.
Ø Another possible reason for the reluctance of some countries to fulfill their
obligation to adopt concrete positive measures may be that aptly crafted
measures to address the inequalities must be based on accurate data that
reveals the socio-economic inequalities suffered by the protected groups.
Ø Population data is especially important in revealing the existence of racial
inequalities that violate ICERD. Data that is disaggregated based on identity
groups within the population is essential.
Ø CERD has often brought attention to the importance of data collection.
Population statistics should be disaggregated by race, color, descent and ethnic
or national origin, and sex. It should measure the socio-economic and cultural
status of various groups and their participation in the political and economic
development of the country (G.R. 32). Once implemented, disaggregated data
can be used to assess the effectiveness of a corrective measure. States,
however, have been reluctant to collect data for the purposes of addressing
racial discrimination.
Ø Some countries have objected that they lack the resources to collect such
information on a country-wide level.
Ø Yet, most countries conduct a periodic census. Other countries argue that their
history or values create difficulties to conduct a statistical survey that asks
respondents to declare their racial identity. This issue is of particular sensitivity
in Europe because of the history of Nazi Germany.
Ø To respond to these sensitivities, States parties are referred to the reports of
the United Nations Statistical Commission which have developed
methodologies for collecting such data while also protecting the privacy of
participants.
Ø While article 3 considers the obligation of States to condemn and prohibit
apartheid and racial segregation, at the time that ICERD was adopted, apartheid
in South Africa was being more effectively dealt with in other United Nations
fora.
Ø In the United States, the post-Civil War regimes called Jim-Crow laws, had been
under sustained attack by the Civil Rights Movement which was resulting in
national legislation. Consequently, article 3 principally has been referenced with
respect to school segregation and patterns of residential segregation.
Ø Article 3 creates the obligation to eradicate all practices of segregation which
CERD emphasizes includes those imposed currently or in the past, by State
action or by that of private persons or forces
Ø The situation of the Roma has perpetually presented serious concerns regarding
segregation in access to education.
Ø In its General Recommendation on discrimination against the Roma, CERD gave
a lengthy statement of State party obligations to prevent violations of the right
 to education including bi-lingual and mother-tongue tuition, efforts to raise
achievement levels of minority students, recruitment of school personnel from
minority communities and the promotion of intercultural education (G.R. 27).

C. HATE SPEECH

Ø The spread and impact of racist speech and propaganda has been of particular
concern to CERD. In recent years there has been an increase in the open and
unapologetic dissemination of speech. It has spread unchecked through cyberspace
and even mainstream political parties have based national electoral campaigns on
thinly veiled racist platforms.
Ø Article 4 of the Convention calls on States to condemn such propaganda based on
theories of the superiority of one racial group over another in all forms and
encourages national leaders to speak out against it.
Ø States must make it an offence punishable by law to disseminate such ideas, to
incite racial hatred and acts of violence, as well as to give assistance or financing to
such activities.
Ø These prohibitions also apply to public authorities or institutions (article 4(a) and
(b)). Additionally, States should declare illegal organizations and all organized
propaganda activities that promote racial hatred(G.R. 35).
Ø Some have raised concerns about the conflict between article 4 and the guarantees
of freedom of speech particularly under articles 19 and 20 of the Universal
Declaration of Human Rights and articles 19 and 21 of the International Covenant
on Civil and Political Rights. But, the careful wording of article 4 locates restrictions
on hate speech as an inextricable piece of a body of rights that are indivisible, which
must be given “due regard” as such.
Ø Additionally, ICERD explicitly recognizes the right to freedom of opinion and
expression (article 5(d)(viii)).

D. MEASURES TO COMBAT RACIAL PREJUDICES

Ø Article 7 of the Convention is often overlooked and under-utilized. It could be

argued, however, that in its focus on the fields of “teaching, education, culture and
information” it goes to the most important approaches to achieving the objectives
of the Convention.
Ø Under article 7, States parties undertake to adopt measures to combat prejudices
before they are deeply entrenched in society. The critical role played by
misinformation and indoctrination is fully recognized by CERD, which considers it to
be a root cause of hate speech (G.R. 35, paras. 30-44).
Ø The States parties have an obligation to undertake effective measures to prevent
the formation of prejudices by using positive methods such as public education
campaigns, curriculum in schools and cross-group cultural programs to promote
understanding and the value of diversity.
Ø CERD has also recognized the importance of anti-racist training for law enforcement
officers (G.R. 13).
Ø At the same time, CERD’s suggestion that the forces of discrimination that have
robbed individuals, social groups, and entire societies of the full measure of human
potential can be displaced by “understanding, tolerance and friendship” requires
more convincing.
UNIT 9
Convention on Elimination of Discrimination against women (CEDAW)
▪ Definition of discrimination under CEDAW
▪ Reading gender based violence under CEDAW
▪ Evaluation of the working of committee in CEDAW.
▪ Prof. Crenshaw’s theory on intersectional identity and violence against women.

I. DEFINITION OF DISCRIMINATION UNDER CEDAW

 The Convention on the Elimination of All Forms of Discrimination against Women

(CEDAW), adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women.
 It consists of a preamble and 30 articles defining what constitutes discrimination
against women and sets up an agenda for national action to end such
discrimination.
 The Convention defines discrimination against women as "...any distinction,
exclusion or restriction made on the basis of sex which has the effect or purpose of
impairing or nullifying the recognition, enjoyment or exercise by women, irrespective
of their marital status, on a basis of equality of men and women, of human rights
and fundamental freedoms in the political, economic, social, cultural, civil or any
other field."

II. CEDAW AND VIOLENCE AGAINST WOMEN

 On 14 July 2017, the United Nations (un) Committee on the Elimination of

Discrimination against Women (cedaw Committee) adopted its General
Recommendation No. 35 on gender-based violence against women
 The purpose of this General Recommendation was to update the Committee’s
General Recommendation No. 19 on violence against women, which had been
adopted 25 years previously
 At the un level, the primary instrument relating to the rights of women is
the un Convention on the Elimination of All Forms of Discrimination against Women
1979 (cedaw)
 However, rather surprisingly, this Convention contains no express reference to the
issue of violence against women.
 It seems nevertheless that this omission can be explained by the fact
that cedaw was formulated in 1979, at a time when there was little, if any,
recognition of violence against women as an issue falling within the ambit of
international human rights law.
 As Edwards states: Prior to the 1990s…violence against women was not seen as a
major issue, and if it was recognised as an issue at all, it was considered an issue for
national governments (and criminal law) rather than international law
 Although violence against women is now regarded as an issue which clearly must be
addressed at the international level, the fact remains same that there is no express
mention of violence against women in cedaw, or indeed in any other UN Human
Rights treaty.
 The approach adopted by the cedaw Committee has however been to
interpret cedaw in such a manner as to encompass this issue, as best exemplified to
date by the Committee’s General Recommendation No. 19.
 The cedaw Committee adopted General Recommendation No. 19 on violence
against women in 1992. According to this document:
 The definition of discrimination includes gender-based violence, that is, violence
that is directed against a woman because she is a woman or that affects women
disproportionately.
 It includes acts that inflict physical, mental or sexual harm or suffering, threats of
such acts, coercion and other deprivations of liberty.
 Gender-based violence may breach specific provisions of the Convention, regardless
of whether those provisions expressly mention violence.
 General Recommendation No. 19 then went on to explain how particular articles
of cedaw, although not referring expressly to the issue of violence against women,
should nonetheless be interpreted in such a way as to cover this issue,and made
various recommendations to states as regards how they should respond to violence
against women
 It is fair to say that since 1992, ‘General Recommendation 19 has been the basis of
the (cedaw) Committee’s work on violence against women.
 The CEDAW Committee frequently makes recommendations on this issue in its
Concluding Observations on the periodic reports submitted by states parties under
CEDAW’s monitoring procedure.
 Also, under the individual communications procedure contained in the Optional
Protocol to c CEDAW the Committee has found states to be in violation of the
Convention in instances relating to violence against women
 Then 25 years after the adoption of General Recommendation No. 19, the CEDAW
Committee issued a further General Recommendation on violence against women,
in the form of General Recommendation No. 35.
 The CEDAW Committee points out in the latter that, despite the work of the
Committee and of other bodies such as civil society groups, ‘gender-based violence
against women…remains pervasive in all countries of the world, with high levels
of impunity.’
 The aim of the CEDAW Committee in adopting General Recommendation No. 35 is
to provide states parties with ‘further guidance aimed at accelerating the
elimination of gender-based violence against women’, in the hope that this will
contribute towards the amelioration of this situation
 It recognizes that the prohibition of gender-based violence has become a norm of
international customary law;
 It expands the understanding of violence to include violations of sexual and
reproductive health rights;
 It stresses the need to change social norms and stereotypes that support violence,
in the context of a resurgence of narratives threatening the concept of gender
equality in the name of culture, tradition or religion;
 It clearly defines different levels of liability of the State for acts and omissions
committed by its agents or those acting under its authority - in the territory of the
State or abroad- and for failing to act with due diligence to prevent violence at the
hands of private individuals and companies, protect women and girls from it, and
ensure access to remedies for survivors;
  It unequivocally calls for the repeal of all laws and policies that directly and
indirectly excuse, condone and facilitate violence; and
 It emphasizes the need for approaches that promote and respect women’s
autonomy and decision-making in all spheres of life.

III. PROF. CRENSHAW’S THEORY ON INTERSECTIONAL IDENTITY AND

VIOLENCE AGAINST WOMEN.

 Intersectionality (or intersectional theory) is a term first coined in 1989 by American

civil rights advocate and leading scholar of critical race theory, Kimberle Williams
Crenshaw.
 It is the study of overlapping or intersecting social identities and related systems
of oppression, domination, or discrimination.
 The theory suggests that—and seeks to examine how—various biological, social and
cultural categories such as gender, race, class, ability, sexual
orientation, religion, caste, age, nationality and other sectarian axes
of identity interact on multiple and often simultaneous levels.
 Intersectional theory asserts that people are often disadvantaged by multiple
sources of oppression: their race, class, gender identity, sexual orientation, religion,
and other identity markers.
 Intersectionality recognizes that identity markers (e.g. “woman” and “black”) do not
exist independently of each other, and that each informs the others, often creating
a complex convergence of oppression.
 In DeGraffenreid v. General Motors (1976), Emma DeGraffenreid and four other
black female auto workers alleged compound employment discrimination against
black women as a result of General Motors' seniority-based system of layoffs.
 The courts weighed the allegations of race and gender discrimination separately,
finding that the employment of African-American male factory workers disproved
racial discrimination, and the employment of white female office workers disproved
gender discrimination.
 The court declined to consider compound discrimination and dismissed the case.
 Crenshaw argued that in cases such as this, the courts have tended to ignore black
women's unique experiences by treating them as only women or only black
UNIT 10
Convention on Rights of Child (UNCRC)

▪ Identifying children as a vulnerable group

▪ Principle of best interest of child and child friendly approach in criminal
cases.
▪ Evaluation of the working of Committee on the Rights of the Child

A. INTRODUCTION

 The literal meaning of the term “vulnerability” is the state or condition of being
weak or poorly defended.
 The concept vulnerability with regard to young people/Children implies the ones
who are more exposed to risks than their peers
 They can be vulnerable in terms of deprivation (food, education, and parental care),
exploitation, abuse, neglect, violence, and infection with HIV.
 Vulnerability is a relative state that may range from resilience to total helplessness.
 absence of even one of the parents or orphanhood is one of the major
determinants of vulnerability.
 The main categories of vulnerable children are:

- Street children,
- Children in the worst forms of child labor,
- Children affected by armed conflict,
- Children affected by HIV/AIDS,
- Children living with disability, and
- Local Orphans and vulnerable children (OVC) groups

 Risk factors and indicators of vulnerability in young people/Children

- Health related factors

- Social factors
- Family problems contributing to the vulnerability

B. WHAT IS THE UNCRC?

 The United Nations Convention on the Rights of the Child (UNCRC) is a legally-
binding international agreement setting out the civil, political, economic,
social and cultural rights of every child, regardless of their race, religion or abilities.
 The UNCRC consists of 54 Articles that set out children’s rights and how
governments should work together to make them available to all children.
 Under the terms of the convention, governments are required to meet children’s
basic needs and help them reach their full potential.
  Central to this is the acknowledgment that every child has basic fundamental rights.
These include the right to:

a. Life, survival and development

b. Protection from violence, abuse or neglect
c. An education that enables children to fulfil their potential
d. Be raised by, or have a relationship with, their parents
e. Express their opinions and be listened to.

C. OPTIONAL PROTOCOLS

In 2000, two optional protocols were added to the UNCRC.

Ø One asks governments to ensure children under the age of 18 are not forcibly
recruited into their armed forces.
Ø The second calls on states to prohibit child prostitution, child pornography and
the sale of children into slavery. These have now been ratified by more than 120
states.
Ø A third optional protocol was added in 2011 which enables children whose rights have
been violated to complain directly to the UN Committee on the Rights of the Child.

D. PRINCIPLE OF BEST INTEREST OF CHILD- GENERAL COMMENT NO. 14

(2013) ON THE RIGHT OF THE CHILD TO HAVE HIS OR HER BEST
INTERESTS TAKEN AS A PRIMARY CONSIDERATION

Ø The principle of “the best interest of the child” is implemented in Article 3

(1) Convention on the Rights of the Child (CRC), which provides that “in all actions
concerning children, whether undertaken by public or private social welfare
institutions, court of law, administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.”
Ø The concept of the “child's best interests” is not new. Indeed, it pre-dates the
Convention and was already enshrined in the 1959 Declaration of the Rights of the
Child (para. 2), the Convention on the Elimination of All Forms of Discrimination
against Women (arts. 5 (b) and 16, para. 1 (d)), as well as in regional instruments
and many national and international laws.
Ø The Convention explicitly refers to the child's best interests in other articles:

• article 9: separation from parents;

• article 10: family reunification;
• article 18: parental responsibilities;
• article 20: deprivation of family environment and alternative care;
• article 21: adoption;
 • article 37(c): separation from adults in detention;

Ø article 40, procedural guarantees, including presence of parents at court hearings

for penal matters involving children in conflict with the law.
Ø Reference is also made to the child's best interests in the Optional Protocol to the
Convention on the sale of children, child prostitution and child pornography
(preamble and art. 8) and
Ø in the Optional Protocol to the Convention on a communications procedure
(preamble and arts. 2 and 3).
Ø The concept of the child's best interests is aimed at ensuring both the full and
effective enjoyment of all the rights recognized in the Convention and the holistic
development of the child.
Ø The Committee has already pointed out that “an adult’s judgment of a child’s best
interests cannot override the obligation to respect all the child’s rights under the
Convention.”
Ø It recalls that there is no hierarchy of rights in the Convention; all the rights
provided for therein are in the “child's best interests” and
Ø no right could be compromised by a negative interpretation of the child's best
interests.

E. THE COMMITTEE UNDERLINES THAT THE CHILD'S BEST INTERESTS IS A

THREEFOLD CONCEPT:

(a) A substantive right:

Ø The right of the child to have his or her best interests assessed and taken as a primary
consideration when different interests are being considered in order to reach a decision
on the issue at stake, and the guarantee that this right will be implemented whenever a
decision is to be made concerning a child, a group of identified or unidentified children
or children in general.
Ø Article 3, paragraph 1, creates an intrinsic obligation for States, is directly applicable
(self-executing) and can be invoked before a court.

(b) A fundamental, interpretative legal principle:

Ø If a legal provision is open to more than one interpretation, the interpretation which
most effectively serves the child’s best interests should be chosen.
Ø The rights enshrined in the Convention and its Optional Protocols provide the
framework for interpretation.

(c) A rule of procedure:

Ø Whenever a decision is to be made that will affect a specific child, an identified

group of children or children in general, the decision-making process must include
 an evaluation of the possible impact (positive or negative) of the decision on the
child or children concerned.
Ø Assessing and determining the best interests of the child require procedural
guarantees.Furthermore, the justification of a decision must show that the right has
been explicitly taken into account.
Ø In this regard, States parties shall explain how the right has been respected in the
decision, that is, what has been considered to be in the child’s best interests; what
criteria it is based on; and how the child’s interests have been weighed against
other considerations, be they broad issues of policy or individual cases.

F. EVALUATION OF THE WORKING OF COMMITTEE ON THE RIGHTS OF

THE CHILD (INCLUDE GENERAL COMMENT GENERAL COMMENT NO. 14
(2013) ON THE RIGHT OF THE CHILD )

Ø The Committee recommends that States widely disseminate the general comment
no. 14(2013) to parliaments, governments and the judiciary, nationally and locally.
Ø It should also be made known to children – including those in situations of exclusion
–, all professionals working for and with children (including judges, lawyers,
teachers, guardians, social workers, staff of public or private welfare institutions,
health staff, teachers, etc.) and civil society at large.
Ø To do this, the general comment should be translated into relevant languages, child-
friendly/appropriate versions should be made available, conferences, seminars,
workshops and other events should be held to share best practices on how best to
implement it.
Ø It should also be incorporated into the formal pre- and in-service training of all
concerned professionals and technical staff.
Ø States should include information in their periodic reporting to the Committee on the
challenges they face and the measures they have taken to apply and respect the
child’s best interests in all judicial and administrative decisions and other actions
concerning the child as an individual, as well as at all stages of the adoption of
implementation measures concerning children in general or as a specific group.