(compiled from notes from various sources and CHATGPT)

Module 1 Introduction to Human Rights

Andrew Clapham - Introduction

●​ HRs - claims arising from fundamental human dignity and worth - invoked to rectify
injustices and challenge laws or practices deemed unjust
●​ What constitutes HR - varies widely among different actors
●​ Modern HRs framework - post WWII- codification of HRs into treaties and
conventions
●​ Critiques
➔​ give a detailed summary of this pdf - explain the concepts and the main argument of
the author also explain what does the author talk about the connection between
dignity and human rights
➔​ Individualism v Collectivism - promoting individualism at the expense of collective
social responsibilities
➔​ Cultural Relativity - The universal application of human rights is contested by those
who see it as a Western construct, ill-suited to certain cultural or societal contexts.
●​ Dignity and Human Rights
➔​ Connection - foundational
➔​ Human dignity entails - treating individuals as ends in themselves - not merely as
means to end (Kant)- rights impt because they are essential to individual autonomy
and agency
➔​ Human rights protections often aim to preserve dignity by addressing issues like
torture, discrimination, and access to basic needs. The principle of dignity acts as a
moral compass for legal and social reforms
➔​ Why HRs have special worth - because they protect human dignity
Marie Benedict Dembour - 4 schools of thought
●​ Natural School
➔​ HRs - inherent, universal and derive from the nature of being human (they are
pre-existing and independent of societal regulation)
➔​ Grounded in natural law - linked to transcendental source - such as God, reason or
universal morality
➔​ Human rights protections often aim to preserve dignity by addressing issues like
torture, discrimination, and access to basic needs. The principle of dignity acts as a
moral compass for legal and social reforms
➔​ Critique - can be criticized for ignoring cultural and societal diversity and for its
assumption of universal applicability without adaptation.
●​ Deliberative School
➔​ HRs are agreed upon principles established through democratic deliberation and
societal consensus
➔​ Rights emerge from political and societal processes rather than from nature or
transcendental sources.
 ➔​ Focus on human rights law as procedural and as a tool for governance and democracy.
Emphasizes the role of constitutional law in articulating human rights values. Views
universality as a project to be achieved through gradual acceptance.
➔​ cRITIQUE - may downplay the moral imperative of HRs and risks relativism
●​ Protest School
➔​ Tool for fighting against oppression and injustice,especially for marginalised and
disenfranchised
➔​ Rights - not entitlements but claims that challenge power structures and social
inequalities
➔​ Focuses on activism and social movements to achieve rights - regards rights as
dynamic and evolving with societal changes
➔​ Critique - this perspective may lack a stable foundation for defining rights universally.
●​ The Discourse School
➔​ Socially constructed concepts - existing because we discuss them - rather than being
inherent or agreed upon
➔​ Rights are created and perpetuated through language, culture, and power relations.
➔​ Rights are created and perpetuated through language, culture, and power relations.
➔​ Critique - Views human rights discourse as a political tool rather than a moral truth.

Amartya Sen
●​ HRs should be understood as ethical principles rooted in public reasoning and human
dignity - rather than solely as legal entitlements - their legitimacy lies in their ability
to survive open scrutiny and dialogue across diverse cultures and social contexts
●​ Rights are tools for advancing freedom and equality - making them essential for social
justice
●​ Questions Posed
1.​ What kind of statement does a declaration of human rights make?
Declarations of human rights are ethical proclamations. They are not limited to legal
frameworks but act as moral guidelines that inspire action and legislation​
2.​ What makes HRs important?
Human rights derive their importance from the fundamental freedoms they promote, which
are vital for human well-being and societal development​
3.​ What duties and obligations do HRs generate?
Rights create reasons for action. They impose obligations on individuals and institutions to
consider and act upon these moral claims, respecting their perfect or imperfect
nature​Elements of a Theory of.
4.​ Through what forms can HRs be promoted
Beyond legislation, rights can be upheld through public advocacy, recognition, education,
and monitoring. This reflects the multifaceted ways to sustain human rights in practice
5.​ Can Economic and social rights be included as HRs
Yes, provided they fulfill the criteria of relevance and feasibility. These rights address critical
freedoms and align with the broader goals of human development​
6.​ How can HR claims be defended universally amid cultural diversity
Universal claims must survive critical public reasoning and dialogue. By involving diverse
perspectives, human rights achieve legitimacy and inclusivity​

Valerian Rodrigues

YASH GHAI - Asian Perspective

●​ Human rights must be interpreted within cultural and societal contexts. Universal
human rights frameworks, dominated by Western ideology, often fail to respect or
integrate the distinct values and traditions of Asian societies.
●​ Asian societies place a greater focus on community, family, and societal harmony,
compared to the Western focus on individual autonomy and rights. The Western
approach is critiqued for being too individualistic and less accommodating of
collective well-being.
●​ Criticisms of the ‘Official Asian Voice’ -
➔​ Overstates the individualism of Western Society and Traditions of thought
➔​ Asian governments fall into the easy but wrong assumption that they or the state are
the community - The community, for the most part, depends on popular norms
developed through forms of consensus and which are enforced through mediation and
persuasion - In the name of the community, most Asian governments have stifled the
social and political initiatives of private groups.
●​ What could be an Asian Perspective to HRs be
➔​ Abandon the search for a set of features that explain the whole Asian context, since
there is such a marked diversity among Asian countries:
➔​ Human rights in the West have responded to the configurations of power and
economic relationships as they have evolved over a long period. In Asia, on the other
hand, human rights have a transformative potential.
➔​ The state is a major culprit, brutalising whole populations, but massive violations also
take place in and through civil society.
➔​ Despite these violations, human rights consciousness is low. A major challenge to
human rights workers is undoubtedly this ethnic consciousness which compels a
perception of outsiders as less than human. Another cause of low human rights
consciousness may be widespread poverty.
➔​ Challenges to HR violations - are not individual based but group or class based

Barreto

●​ Current HRs - deeply rooted in Eurocentric traditions that perpetuate global

inequalities - argues for an epistemological shift - proposing that epistemologies of
the South as a means to reimagine HRs in a way that respects and incorporates diverse
cultural and historical perspectives
●​ The dominance of Eurocentric perspectives in global HRs framework - perpetuates
inequalities rooted in colonial and neoliberal systems
 ●​ Introduces the concept of "Epistemologies of the South," advocating for knowledge
systems and justice frameworks that emerge from the lived experiences and resistance
movements of marginalized communities
●​ Abyssal Thinking - coined by Santos - describes a divide created by colonial and
modern systems that delegitimize non-Western forms of knowledge - the abyssal line
separates what is considered as valid knowledge and what is excluded as non-existent
or irrelevant
●​ Human rights discourse often operates within these Eurocentric boundaries,
marginalizing alternative epistemologies .
●​ Epistemologies approach calls for recognizing and integrating the knowledge systems
of marginalized communities in the Global South. It emphasizes participatory,
inclusive justice frameworks that challenge the hierarchical imposition of Western
norms .
●​ The author underscores that human rights can only achieve true universality if they
move beyond their Eurocentric origins to embrace a plurality of voices and
experiences .

Mutua - Human Rights Standards

●​ New HRs standards have slowed down - most basic rights have been recognised -
there are other reasons why norm setting has slowed down and has become harder -
the era of standard setting far from over?
●​ analyses the Eurocentric origins of international human rights law, noting that
although Western powers initially dominated norm-setting processes, the inclusion
of formerly colonised nations has reshaped the discourse. Despite these
advancements, the author highlights the ongoing struggle for equitable representation
and legitimacy in setting and enforcing human rights standards globally
●​ Norm creation is a complex process involving multiple stakeholders, each with their
own agendas and influences. While standards are essential, their effectiveness
depends on practical enforcement mechanisms.
●​ The document emphasizes that norm setting is an ongoing process, driven by evolving
understandings of dignity, freedom, and societal power structures​
●​ The document calls for more inclusive and participatory approaches to ensure the
legitimacy of global norms​
●​ Although Early formulation and codification of human rights were heavily
influenced by Western norms.
●​ This historical dominance is acknowledged by scholars but does not inherently
delegitimize the human rights movement. The movement’s success lies in its ability to
grow beyond ethnocentric origins into a truly universal corpus.
●​ UDHR lays a foundation for civil, political, economic, social, and cultural rights.
Should be seen as a credible promise for progress, not a holy text. It achieved
significant moral authority and parts have become customary international law.
●​ Drawback of UDHR is that it is a customary law and it is a creature of some elite
states usually north and some elites of the south.
 ●​

Susan Marks

●​ Marks critiques the human rights movement's approach to root causes for being
overly narrow and disconnected from systemic realities. She proposes an alternative
framework rooted in the concept of what she calls ‘planned misery’, emphasizing
structural and materialist analyses to better address the socio-economic
underpinnings of violations.
●​ examines how the human rights movement has traditionally focused on documenting
abuses without addressing their underlying causes. Marks argues that there is now a
shift toward addressing the “root causes” of human rights violations, but this
approach has significant limitations.
●​ Marks argues that while recognizing root causes in human rights work is a positive
step, it often falls short because it doesn't go deep enough into the systemic forces
behind abuses. Instead of fully examining how social and economic structures
perpetuate inequality and suffering, the human rights movement tends to frame
causes as isolated or technical issues, solvable through reforms or institutional
adjustments

Rise of the root cause discourse

●​ Superficial investigation
●​ Misattribution of effects as causes - example - poverty, corruption
●​ Causes identified - not integrated into the solutions
●​ Read 3 case studies for root causes discourse
●​ Proposed alternative - Planned Misery - Marks advocates for a perspective that sees
human rights abuses as part of a system of “planned misery,” meaning that many
abuses are embedded within and perpetuated by the current global economic and
political order. This approach calls for a shift in human rights work to focus on the
structures that create these conditions, rather than simply treating symptoms.
●​ The term ‘planned misery’ does not denote intended or deliberately inflicted misery
(though that is sometimes what is involved), rather it suggests that human rights
violations are not random events but are systematically embedded in
socio-economic and political structures.
●​ This perspective challenges the moralistic and voluntarist tendencies of the human
rights movement, advocating for a materialist and relational approach to
understanding conditions that perpetuate abuses.
○​ Focuses on why actors behave as they do rather than on what they "should" do
(thus being anti-moralistic in the sense that we are looking at motivations of
 the actors instead of idealising a particular way in which they ‘should’
behave).
○​ Highlights relational dynamics, including the roles of beneficiaries of human
rights abuses, i.e., who gets to benefit from these abuses and how do they
benefit out of it.
○​ Prioritizes materialist explanations that link ideas to socio-economic
conditions.
●​ This approach would integrate root cause analysis into strategies for transformative
change rather than treating it as an isolated theoretical exercise.
●​

Module 2 - Historicizing Human Rights, Hierarchy of Human Rights and HR

Movements

Samuel Moyn

●​ Concept of HRs - far from being ancient or universal ideal - product of modern
history - shaped by specific political, cultural and moral contexts
●​ Their universal appeal and effectiveness are limited by ideological and practical
challenges. History of HRs - reveals their malleability and underscores the need to
rethink their role in addressing complexities of modern world
●​ Timeline
➔​ 1940s - time when HRs were marginalised - concept was vague associated with social
democracy rather than individual freedoms
➔​ UDHR - afterthought to global governance structures dominated by WWII
➔​ Cold War era - focus on the collective ideals like communism and nationalism
➔​ 1970s - turning point - HRs gaining attention through organisations like Amnesty
international and political leaders - saw the reframing of human rights as a moral,
minimalistic framework appealing to individuals rather than collective utopias.
➔​ The rise of human rights as a moral alternative to failed utopian projects (like
revolutionary socialism or imperial ambitions) is seen as both an opportunity and a
limitation. The focus on individual rights often overshadows systemic issues like
inequality and economic injustice.
➔​ The author calls for a critical reassessment of human rights, suggesting they are not
immutable but should be adapted—or even replaced—to address contemporary
challenges effectively.

Antonie Arghie
 ●​ Attitudes of developing countries toward international HRL are deeply intertwined
with their historical struggles for decolonization, sovereignty and development
●​ While international human rights offer a powerful framework for justice, their
Western origins and universalist claims often clash with the realities and priorities of
the developing world.
●​ Discussion of the question of ‘whether HRs are inherently western’ - and how they
align with the socio-political and cultural frameworks of developing nations
●​ History - UDHR - western nations - involvement of non-european thinkers and
traditions - acknowledged but deemed marginal
●​ Developing nations - emphasized collective rights - imposition of western-centric
norms seen as continuation of imperialistic practices
●​ Global events like the Cold War, globalization, and the end of colonial rule
significantly reshaped the discourse around human rights. Human rights norms
expanded into new areas such as transitional justice, international criminal law, and
humanitarian intervention, often driven by Western agendas.
●​ Cultural Relativism and Vernacularisation of Rights
➔​ The concept of vernacularization refers to the process by which international
human rights norms are localized and adapted to fit the socio-cultural, political,
and economic contexts of specific communities, particularly in developing
countries. By incorporating human rights into existing cultural and legal frameworks,
marginalized groups can better utilize these norms to advocate for justice and equality.
➔​ The process of vernacularization carries the risk of undermining the universal
principles of human rights if they are too heavily modified or co-opted by local elites
or authoritarian regimes.
➔​ Cultural relativism is the idea that human rights must be understood within the
context of specific cultural, historical, and social norms, rather than as absolute,
universal standards. The relationship between vernacularization and cultural
relativism lies in the tension between respecting local traditions and ensuring that
human rights remain a robust framework for justice.
➔​ The author underscores that vernacularization is both a strength and a vulnerability
for human rights. While it allows for greater resonance and applicability, it can also
dilute universal norms if cultural relativism is invoked to justify oppressive practices.-
a balanced approach needed

Theo Van Boven

●​ Explores categorisation of HRs - while emphasizing their indivisibility,
interdependence and interrelatedness
●​ HRs - should not be viewed as isolated or hierarchical - rather they form a holistic
framework ensuring well being and dignity of individuals and communities
Categories
●​ Economic, Social and Cultural Rights v Civil and Political Rights
➔​ Economic, social, and cultural rights (e.g., right to education, health) often require
progressive realization due to resource constraints.Civil and political rights (e.g., right
to life, freedom of expression) demand immediate implementation.
 ➔​ Civil and political rights are often regarded as enforceable and essential, while
economic, social, and cultural rights are seen as aspirational, although this is
increasingly contested.
●​ Individual v Collective Right
➔​ Historically prioritized, individual rights (e.g., freedom of expression) focus on
personal dignity and autonomy. Indigenous peoples and minorities have collective
rights, such as self-determination and cultural preservation. These rights support the
full realization of individual rights within a community context ( example - UN
Declaration on the Rights of indigenous people - balances individual and collective
rights)
●​ Core Rights v Other rights
➔​ Core rights are foundational to human dignity and survival (e.g., right to life,
prohibition of torture). These rights often enjoy special legal protection, including
non-derogability during emergencies.
➔​ Economic and social rights, such as access to food and basic healthcare, are
increasingly recognized as core rights necessary for human dignity
●​ All rights are interconnected - violation of one right - can affect others
●​ The dynamic nature of human rights responds to new challenges and marginalized
groups. Examples include rights of persons with disabilities, LGBTI individuals, and
victims of gross violations (e.g., the right to truth in transitional justice contexts)
[ scope for new rights]
●​ While categorizations like civil-political vs. economic-social, or individual vs.
collective rights, are useful, they must not obscure the interconnectedness of rights.
Core rights, emerging rights, and the rights of marginalized groups reflect the
evolving and inclusive nature of human rights, adapting to new challenges and
expanding their reach to protect all members of society.
●​ CPRs and ESRs.
●​ Realisation - Article 2 of ICESCR acknowledges that these rights should be achieved through
progressive realisation and through maximum utilisation of available resources - but Article 2
of ICCPR mentions that achievement of civil and political rights is an immediate obligation
●​ Nature of state obligations - CPRs impose negative obligations on the state while ESCRs
impose positive obligations
●​ Status - CPRs are transcendental with legal enforceability while ESCRs are aspirational
without legal enforceability

Alston - Third Generation of Rights

●​ Author critiques the concept of third generation solidarity rights - as proposed in a
new category within IHRL - These rights—often including the right to development,
peace, communication, and a healthy environment—are grouped under the umbrella
of "solidarity rights" due to their dependence on collective action and global
cooperation.
●​ Generations of Human Rights
➔​ First Generation (Civil and Political Rights): Focuses on individual freedoms, such
as freedom of speech and the right to vote, characterized by obligations of
non-interference by the state.
➔​ Second Generation (Economic, Social, and Cultural Rights): Includes rights to
education, health, and work, requiring state intervention and resources.
➔​ Proposed Third Generation (Solidarity Rights): Encompasses rights such as the
right to peace, development, and a healthy environment, emphasizing collective
responsibility and global cooperation.
●​ Third generation rights - emerged in the 1970s - gaining traction through efforts by
UNESCO and proponents by Vasak
●​ Solidarity rights are seen as tools to rectify historical and systemic imbalances,
particularly between the Global North and South. They emphasize obligations that
transcend state borders, such as international cooperation for development and
resource sharing.
●​ Alston outlines key obstacles to their realization, including the need for clearer
institutional frameworks, the equitable distribution of responsibilities
(acknowledging developed nations’ historical contributions to global issues like
climate change), and the avoidance of politicization
●​ Focus on Refinement: Rather than framing new claims as distinct "generations," the
human rights tradition can evolve through progressive development of existing rights.
●​ Critiques of the third generation concept
➔​ Solidarity rights are seen as tools to rectify historical and systemic imbalances,
particularly between the Global North and South. They emphasize obligations that
transcend state borders, such as international cooperation for development and
resource sharing.
➔​ Risk of diluting existing rights - Introducing new categories may overshadow efforts
to enforce existing rights, particularly in regions where fundamental human rights
remain unfulfilled.
➔​ Potential for obfuscation - The introduction of new terminologies risks complicating
the human rights discourse, making it less accessible and actionable, especially for
grassroots movements and marginalized groups.
➔​
Vasak anticipated and responded to several objections that critics might raise
against the idea of third-generation rights:
a. Lack of precise object or scope
i. Critics argue that third-generation rights lack a clear definition, making
them difficult to enforce.
ii. Vasak's Response: Vasak acknowledges that early human rights (like
civil and political rights) were also initially vague, but they gained
definition over time. The modern concept of rights does not
necessarily require each right to have a specific guarantor (e.g., one
institution or state responsible for its enforcement).
b. Solidarity Rights might overpower individual rights
i. Some argue that prioritizing collective solidarity rights could
undermine individual liberties and freedoms.
 ii. Vasak's Response: Vasak defends the idea that all human rights have a
collective dimension, and that indivisibility and complementarity
of rights apply across all generations. Even individual rights are
interdependent on the realization of collective solidarity.
iii. Example: The right to a clean environment (third generation) is
intertwined with individual health rights (second generation). A
pollution-free environment benefits both the collective (solidarity)
and individual (civil and political) rights.
c. Enforceability of Third Generation Rights
i. Critics argue that third-generation rights are too aspirational and cannot
be judicially enforced.
ii. Vasak's Response: He distinguishes the existence of rights from the
means of enforcement. The lack of an enforcement mechanism does
not negate the existence of the rights themselves. The concept of
rights is first about recognizing the moral and legal claims, and
enforcement mechanisms can evolve later.
iii. Example: The right to peace is not directly enforceable in a traditional
sense, but peace agreements like the Paris Agreement on climate
change are institutional responses to this need.
The Evolution of Human Rights: Vasak emphasizes that the third generation of rights is not a
radical departure from the first two generations but rather an evolution of the concept of
human rights. Just as earlier rights evolved over time (from civil and political rights to social
and economic rights), solidarity rights are a natural next step in addressing the
interconnectedness of global challenges.
Generational Terminology and its Implications:
a. The term "generation" implies succession, where each new generation supersedes the
previous one. However, human rights are indivisible and interdependent, not meant
to "replace" one another. Proponents of the generations framework often argue
against this interpretation, but the terminology itself creates confusion.
Masking Evolution: Human rights are dynamic, with all rights evolving over time. For
example, the right to life has expanded in scope to include issues like access to
healthcare and environmental protection. Generational framing obscures this
evolution by pigeonholing rights into specific historical contexts.

Sandra Fredman
●​ explores the concept and framework of positive duties in human rights law,
distinguishing these duties from negative duties. Positive duties require proactive state
intervention to ensure rights are meaningful and accessible, while negative duties
emphasize non-interference
●​ discusses the indivisibility of rights, the interplay between civil-political and
socio-economic rights, and the challenges of defining and enforcing positive
obligations.
●​ Rights generate a cluster of obligations, including:
➔​ Duties to Respect: Refrain from interfering with rights.
➔​ Duties to Protect: Prevent violations by third parties.
➔​ Duties to Fulfill: Take steps to realize rights (e.g., building institutions, allocating
resources).
 ●​ Concept of Minimum Core - and then how to decide what is the extent for the
deployment of available resources
●​ All rights, regardless of their categorization, give rise to both negative and
positive duties. For instance, the right to a fair trial necessitates not only the state
refraining from interference (negative duty) but also actively establishing courts and a
functioning justice system (positive duty).
●​ The distinction is superficial and determined by the ideological lens through which
the right is viewed. The richer conception of freedom as the ability to exercise one’s
rights immediately reveals that these rights also entail positive duties.
●​ This can be illustrated by considering the right to life. If we assume that freedom
consists of absence of State intervention, the right to life appears merely as a duty that
the State refrain from deliberately taking life. A very different interpretation follows
from viewing freedom as the ability to act and fulfil oneself. Seen in this light, the
right to life is not genuine unless it can be exercised by the rights-bearer. This
necessarily includes the right not to die of preventable causes, such as starvation,
exposure, or reasonably avoidable illnesses, which in turn gives rise to a range of
positive duties on the State. The result is a substantial overlap with socio-economic
rights to food, health care, and shelter.
●​ it is impossible to distinguish between rights on the basis of whether they give rise
to positive duties or duties of restraint. The author argues that it is more useful to
consider each right as giving rise to a cluster of obligations, some of which require
restraint and others which entail positive action.
●​ Alexy’s framework utilizes four key parameters for evaluating the fulfilment of
positive duties: effectiveness, participation, accountability, and equality. The
application of these parameters provides a measure of determinacy, even without
precise, pre-defined standards.
●​ The article further explores the prioritisation of principles when multiple rights are
at stake. It acknowledges that some rights may hold greater weight than others (e.g.,
the right to life outweighs the right to assembly). The author suggests that a
hierarchy of principles can be established, providing a framework for deciding
which duty takes precedence in specific circumstances. This hierarchy, however, is
not static but subject to ongoing discussion and revision, reflecting the evolving
understanding of human rights.

Paul O’ Connell - death of economic and social rights - neoliberalism

●​ Initially envisioned as enforceable alongside civil and political rights, socio-economic
rights often require state intervention and resources, making them inherently
distributive and transformative.
●​ Defined by market deregulation, privatization, commodification, and the dominance
of transnational capitalist interests. Neoliberalism privileges negative liberties
(freedom from state interference) over positive obligations (state duties to provide
resources and services).
●​ O’Connell highlights a trend in apex courts across different countries toward a
neoliberal jurisprudence. This involves reducing socio-economic rights to
 procedural guarantees and aligning constitutional interpretations with
market-friendly policies.
➔​ The commodification of essential services like water, education, and healthcare
undermines socio-economic rights, especially for marginalized populations.
Neoliberal policies prioritize privatization and deregulation, reducing public access
to these services.
➔​ Example in India - the Supreme Court decisions in both the Narmada Valley and
Tehri Valley cases,101 in which the Court completely disregarded the right to shelter
of tens of thousands of people in deference to neo-liberal ‘development’ programs,
show how in the contemporary era ‘the Court’s activism increasingly manifests
several biases in favour of the state and development, in favour of the rich against
workers, in favour of the urban middle-class against rural farmers, and in favour of
a globalitarian class and against the distributive ethos of the Indian Constitution’.
➔​ Right to education and PIL - the erosion of socio economic rights under neoliberal
globalisation
-​ In the 1970s and 1980s, the Indian Supreme Court pioneered Public Interest
Litigation (PIL) as a mechanism to address socio-economic inequalities.
-​ The Court expanded the interpretation of Article 21 (Right to Life) to include the
"bare necessities of life," such as adequate nutrition, health, and shelter, linking them
to the right to education.
-​ After India embraced neo-liberal reforms - the judiciary’s stance changed - TMA
PAI - The Supreme Court upheld the autonomy of private educational institutions to
determine their admission policies and fee structures.
-​ The Court weakened earlier rulings by allowing education to be treated as a
commodity, prioritizing the rights of private institutions over equitable access for
disadvantaged groups
●​ O’Connell argues that socio-economic rights are being systematically undermined
by neoliberal globalization. Despite formal recognition, these rights are distorted into
procedural guarantees and stripped of their transformative potential. The judiciary,
rather than countering neoliberal policies, has often facilitated their entrenchment.

Kennedy
●​ Argues that while the human rights movement has achieved significant victories, its
framework often limits its transformative potential.
●​ By prioritizing a legalistic, individualistic, and state-centered approach, the movement
neglects systemic inequalities, economic redistribution, and alternative emancipatory
strategies. It risks becoming part of the problem by entrenching the power structures it
seeks to challenge.
●​ Challenges and Critiques
➔​ The movement often treats human rights as sacred and unquestionable, neglecting
pragmatic evaluations of costs versus benefits. It promises universal justice and
emancipation but may fail to deliver in concrete, contextual ways.
 ➔​ The dominance of human rights as a vocabulary for justice may crowd out other
emancipatory frameworks, such as local traditions, collective responsibilities, or
alternative global discourses.
➔​ By emphasizing formal participation and legal remedies, it legitimizes existing
economic and political inequalities.
➔​ By framing victims, violators, and bystanders in abstract terms, it erases the
complexity of human experiences
➔​ Human rights consolidate people into specific identities (e.g., right holders or
victims), which may inhibit collective solidarity and the recognition of overlapping,
fluid identities.
➔​ The human rights movement has become overly professionalized, creating a
bureaucratic class disconnected from those it seeks to help. This leads to a
"representation" dynamic, where victims are showcased but lose agency in shaping
their own emancipation.
Balagopal
●​ Balagopal argues that the human rights movement must transcend its traditional
association with Marxist revolutionary ideology and adopt a broader, more pragmatic
approach.
●​ He advocates for viewing democracy and human rights as universal achievements
that can guide societal restructuring through gradual reforms rather than
revolutionary rupture. By embracing a wider range of civil, political, social, and
cultural rights, the movement can become a transformative force for justice and equity
in contemporary society.
●​ Historically, human rights have been linked to struggles for freedom and democracy.
Balagopal challenges the idea that human rights must solely defend the rights of
rebels and revolutionaries.
●​ The essay critiques the dichotomy between civil liberties (individual rights) and
democratic rights (collective rights), arguing that they are complementary and not
inherently opposed.
●​ Principles like the rule of law and governance by mandate, despite their bourgeois
origins, represent universal values that can guide the restructuring of society.
●​ The essay calls for a pragmatic approach to democracy, viewing it as a foundation to
address systemic issues such as caste, patriarchy, and economic inequality in India
●​ He rejects the Marxist assumption that systemic change requires revolutionary
rupture, arguing instead for gradual, cultural shifts and institutional reforms as
pathways to a just society.

●​ Giving responsibilities to states to protect rights is dangerous - (i) built on moral

possibilities of the state which is axiomatic given the history of subjugation of their
own citizens, (ii) centrality of the state is built on the doctrine of sovereignty but
this is problematic especially in colonised countries
[ can use the rebel school of thought to argue that - balagopal is against this school of thought
+ can use Ferguson and Grindle from LPD to compare and connect with the issue of role of
state in these transformations]

BAXII - Human Rights Movements and HR markets

●​ argues that human rights movements, traditionally seen as vehicles for justice and
emancipation, are increasingly integrated into global markets, where they function
as economic entities competing for resources and influence. This transformation
raises critical questions about their ability to remain autonomous, effective, and
ethical. The commodification of human rights and the regulatory pressures from
states and global markets often dilute their transformative potential, turning them
into agents of incremental reform rather than systemic change.
●​ the complexities of human rights movements, examining their dual nature as social
movements and as part of global markets.
●​ Human rights movements challenge state power and systemic oppression while
simultaneously relying on state structures for legal recognition and enforcement.
●​ Efforts to empower individuals often result in reinforcing existing structures of power
through legalization and bureaucratization.
●​ The commodification of human suffering has led to the transformation of human
rights movements into markets where symbolic goods (e.g., awareness campaigns,
legal interventions) are produced, traded, and consumed. This commodification
raises ethical concerns about how human rights issues are framed and addressed.
●​ Human rights NGOs often operate like market entities, competing for funding,
visibility, and influence within a constrained global economy. Donors and
organizations act as economic players, shaping agendas based on available resources
and priorities.
●​ States and international bodies impose regulatory frameworks that often stifle the
autonomy of human rights organizations.
●​ The flow of resources is skewed towards certain regions and issues, leaving other
critical areas underfunded.
●​ Northern donors and corporations dominate the funding landscape, influencing the
direction of human rights agendas in the Global South.
●​ Role of media -

●​ History of UN- WWII - adoption of UDHR - not binding principles

●​ UN Charter - not designed to address human rights directly, mechanism primarily
intended to maintain and secure international peace and security
●​ human rights provisions of the Charter prevail over any conflicting provisions
contained in other treaties and are derogable solely in accordance with the Charter
●​ Horotary or weak language of the charter - charter institutions ( ECOSOC, UNGA,
UNSC, ICJ, OHCHR)
●​ HRC - set up by UNGA - subsidiary organ - brings matters before UNGA - urgent or
long term

●​ UPR - Universal Periodic Review

➔​ UPR born out of UNGA resolution 60/251. Thought to have created as a forum a
holistic, honest, yet non-confrontational, discussion of each nation’s persistent human
rights issues.
➔​ Reporting mechanism to not duplicate existing reporting obligations. UPR is linked
to HRC. Confined to states that have ratified the treaty
●​ Special Procedures - Mandate System
➔​ Special procedures are set up to scrutinise and/or investigate specific countries where
acute human rights violations are alleged to have taken place, or investigate and
report on the trends, developments and implementation of particular rights around
the world. The former are known as country-specific mandates, whereas the latter are
known as thematic mandates
➔​ All mandate holders - independent from any government - UN member states have
no general reporting obligations towards any of the special procedures - and no
responsibility to respond to particular allegations
➔​ Activity - negatively affected by lack of state cooperation, inadequate resources and
weak follow up
●​ UN Secretary General
➔​ Chief administrative officer appointed by the GA upon recc of UNSC - role involves
upholding values and authority of UN
●​ GENERAL comments - not legally binding - often invoked by states and
complainants in reporting and complaints procedure
●​ India’s 4th National Report submitted to HRC
➔​ Very positive picture painted - religious intolerance measures of the state etc all
ignored
➔​ report lists all positive sounding Indian commitments made in the form of domestic
policies/legislations wrt good governance
➔​
●​ Cali, Regional Protection
➔​ Regional protection of HRs - to refer to both the human rights standards adopted and
the institutions created by particular regional organisations
➔​ Regional HRs - serves as a bridge to localise global norms while contributing to the
development and enforcement of international human rights law - Established systems
(e.g., Americas, Europe, Africa) generally reinforce global norms, while newer ones
(e.g., League of Arab States, ASEAN) raise concerns about potential conflicts with
UN standards.
➔​ Bring HRs - closer to local contexts - addressing specific regional challenges -
regional mechanisms can influence global standards and vice versa - promoting
mutual enrichment - Established regional systems, with independent interpretive
bodies and individual access, enhance accountability and enforcement.
➔​ Challenges - Potential for divergence from global norms, leading to fragmentation in
international human rights law. Conflicting interpretations of human rights provisions
at regional and UN levels. Newer regional systems (e.g., Arab and ASEAN systems)
lack individual access and robust institutional mechanisms, limiting their
effectiveness.
➔​ Case Studies - African Charter on Human and Peoples’ Rights and ASEAN
declaration - emphasize regional contexts
➔​ Regional systems often employ doctrines like the "margin of appreciation"
differently, which affects the interpretation and application of rights
●​ Margin of Appreciation
➔​ Doctrine allowing regional HRs systems to defer to state authorities in interpreting
and applying HRs based on their closer connection to domestic contexts
➔​ The margin is narrower for absolute rights (e.g., prohibition of torture) and rights
essential to democracy (e.g., political expression).
➔​ It is wider for rights requiring balancing of interests, such as public health or
national security.
➔​ Recognizes the legislative, executive, and judicial authorities' better position to
address local facts, social forces, and cultural traditions.
 ➔​ The margin of appreciation serves as a balancing tool, offering flexibility in applying
human rights while maintaining respect for cultural and political diversity.

Miloon Kothari - India’s contribution to UDHR

●​ In depth exploration of India’s pivotal role in shaping the UDHR

●​ INDEPENDENT India and birth of UN - both aimed to establish systems for global
peace, justice and human dignity
●​ India actively participated in the Commission on Human Rights (CHR) and
contributed to the drafting of the UDHR through figures like Hansa Mehta, Vijaya
Lakshmi Pandit, M.R. Masani, and Lakshmi Menon.
●​ Hansa Mehta's advocacy ensured that gender-sensitive language, such as "all human
beings" instead of "all men," was used in Article 1.
●​ India championed the indivisibility of rights by emphasizing the equal importance of
economic, social, cultural, civil, and political rights.
●​ India's insistence on including terms like "colour" and "political opinion" in the
non-discrimination clauses of Article 2 was instrumental in broadening the scope of
equality
●​ The influence of Indian values such as “Vasudhaiva Kutumbakam” (the world is one
family) and the emphasis on duty-based human rights, as articulated by Gandhi,
shaped the UDHR’s principles.
●​ Indian delegates stressed a secular, universal approach to human rights to avoid
conflicts over theological interpretations.
●​ Removing References to God: India argued that including God in the UDHR would
alienate millions of people who did not share this belief. Instead, the phrase "by
nature and conscience" was initially adopted.
●​ The UDHR inspired India’s Constitution, ensuring its rights and freedoms mirrored
those in the declaration. Over the decades, the UDHR has continued to influence
Indian Supreme Court judgments, education, and social movements.
●​ Despite its contributions, neither India nor the UN has fully realized the
transformative potential envisioned by the founders of the UDHR. Challenges such as
racism, xenophobia, economic imperialism, and nationalism persist. India, drawing
on its rich legacy, is uniquely positioned to lead global efforts for human rights, social
justice, and peace.
●​

Module 4 - International Bill of Rights

ICCPR and ICESCR

General
 ●​ ICCPR ICESCR + UDHR - form the International Bill of Human Rights

ICCPR
●​ Protection for civil and political rights
●​ Obligates countries that have ratified to protect and preserve basic HRs such Fos,
assembly, association, religious freedom __—---
●​ Human Rights Committee (HRC) - established to monitor the implementation of
ICCPR
●​ Optional Protocols - 2 optional protocols ( parties may become parties to either or
both of them)
1.​ 1st OP- It sets out a system by which the Human Rights Committee can receive and
consider complaints from individuals who allege that their human rights have been
violated
2.​ 2nd OP - The SecondOptional Protocol abolishes the death penalty for States parties.
●​ Article 2(2) - provides state parties to take necessary steps - participation by NGOs by
submitting shadow reports and highlight areas for consideration by the committee
●​ Cultural Relativism - Reservations, Articles 23/24/27, GC 28: states parties should
ensure that traditional, historical, religious or cultural attitudes are not used to justify
violations of women’s right to equality before the law and to equal enjoyment of all
Covenant right
●​ ICCPR limitation on rights
➔​ Derogation: Public Emergency (Art 4), Non Derogable Rights (Art 4(2))
➔​ UnlawfulandArbitrary: Article 17(1) [reasonableness, proportionality
➔​ ClawbackClauses: Article 19(3) [law, legitimate ends, necessity]
➔​ MandatoryRestriction on Rights: Article 20 ○-Implied Restrictions: Article 26:
reasonable classification;
➔​ Article 27: measures having a certain limited impact on the way of life of minorities

Philip Alston
●​ UNGA Resolutions - hortatory instrument
●​ ICCPR - binds state parties subject to reservations and other exceptional
circumstances
●​ ICCPR creates a treaty body - HRC - gives institutional support to ICCPR’s norms -
imposes formal obligations on state parties
●​ Both ICCPR and UDHR - characterised by individual rights - group/collective rights
are rare - individual rights places duties on the state
●​ ICCPR Provisions grouped into five categories
1.​ Protection of the individual’s physical integrity, as in provisions on torture, arbitrary
arrest and arbitrary deprivation of life.
2.​ Procedural fairness when the government deprives an individual of liberty” in
provisions on arrest, trial procedure and conditions of imprisonment.
3.​ Equal protection norms defined in racial, religious, gendered and other terms.
 4.​ Freedoms of belief, speech and association, such as provisions on political
advocacy, the practice of religion, press freedom, and the right to hold an assembly
and form Associations.
5.​ The right to political participation.

Manisuli Senyonjo - IHRs- six decades after the UDHR

●​ Categories of Civil and Political Rights - these rights enshrined in Articles of ICCPR

●​ Civil and Political Rights vs Economic, Social and Cultural Rights

➔​ UDHR - did not intend to set up a hierarchy of rights
➔​ Subsequent treaties because of cold war politics - differences between the two set of
rights
➔​ Norms in ICCPR far more developed than ICESCR ( because of ICCPR having legal
and historical advantages)

Civil AND political Rights (ICCPR) Economic, Social and Cultural Rights
(ICESCR)

Long LEGAL pedigree - much No such pedigree

jurisprudence over past 200 years

Significant source material - from These norms less legally developed

domestic law for development of civil and
political rights at international level

Advantage at the advocacy level - NGOs NGOs in the arena of these rights -
have historically focused on these rights facilitated service delivery to disadvantaged
( engaged in domestic and international groups
legal processes)

Infrastructure by ICCPR for these rights - Inferior

superior

Independent body established by ICCPR No such body for ICESCR -

implementation left to ECOSOC
No individual complaint mechanism
Art 2 - ICCPR - to immediately respect and Art 2(1) - ICESCR - obligation is
ensure to all enjoyment of the rights therein progressive - qualified by state’s available
Perception - these are negative rights resources
(states refrain from rights violating Positive - more expensive and difficult to
behavior) perform

●​ Some economic social and cultural aspects have been covered within ICCPR rights
(Eg., right to trade union, right to life which includes state duty to combat
socio-economic threats to life, such as epidemics and malnutrition; states should also
adopt measures to promote life expectancy and reduce infant mortality, Article 27
(minority rights).
●​ Individual and Collective Rights
➔​ Rights in ICCPR - rights of individuals - exception of right of self determination
under Article 1 ( HRC found - right not justiciable under OP)
➔​ Furthermore, the inherent individualism in the ICCPr is tempered by the fact that most
of the rights therein can be limited by proportionate measures designed to ful l the
legitimate countervailing interests of society, such as promotion of public order,
public health, national security, or public morals
●​ Cultural Relativism
➔​ Text of ICCPR - rights are universal. - Furthermore, states have freely ratified the
treaty, so it is perhaps unconvincing for states to subsequently claim some sort of
cultural exemption from the rights therein. However, some room for cultural
difference in application is given.For example, reservations to the ICCPr are
allowed. Eg., public morals is a limitation based on the state; Article 27 confers
cultural rights on minorities, confirming that human rights in fact promote cultural
diversity. Finally, the hrC has occasionally conceded cultural differences in
application of rights
➔​ Argument of economic relativism
●​ Limitations to Civil and Political Rights
➔​ Art 4 ICCPR - permits suspension - in times of public emergency - so long relevant
measures are proportionate
➔​ Art 4(2) - certain non-derogable rights
➔​ Clawback Clauses
ICESCR (1966)
●​ Provides legal framework to protect and preserve the most basic, economic, social
and cultural rights - including rights relating to work in just and favourable
conditions, to social protection, to an adequate standard of living, to the highest
attainable standards of physical and mental health, to education and to enjoyment of
the benefits of cultural freedom and scientific progress- most provisions relating to
tackling VAW
●​ CESCR - independent expert body appointed to oversee state parties’ implementation
of the ICESCR
●​ Optional Protocol ( 2008) - establishes individual complaints mechanism - an
interstate complaint mechanisms and an inquiry procedure ( enforced 2013)
Three roles ( through OP)
1.​ to receive and consider individual and group communications claiming ‘a violation
of any of the economic, social and cultural rights set forth in the Covenant’;
2.​ interstate communications to the effect that a state party claims that another state
party is ‘not fulfilling its obligations under the Covenant’;
3.​ to conduct an inquiry in cases where the CesCr receives reliable information
indicating ‘grave or systematic violations’ by a state party of any esC rights set forth
in the ICesCr.
Manisuli Ssenyonjo
●​ UDHR and ESC rights
●​ ICESCR - initially did not have an independent treaty monitoring body
●​ Article 4(2) - progressive realisation - some rights - immediate implementation -
however, some rights under the ICesCr give rise to obligations of immediate e ect.
one example, is the right to be free from discrimination in the enjoyment of all esC
rights and also rt to equal remuneration
●​ Every substantive ICESCR right - has a minimum core content - which gives rise to
minimum core entitlements to individuals and groups and corresponding minimum
core state obligations of immediate e ect, the CESCR has identified minimum core
obligations in several general comments, and held that a state party cannot, under any
circumstances whatsoever, justify its non-compliance with these core obligations,
which are ‘non-derogable’

Alternative Approaches
●​
●​ Resolution emphasize interrelated human rights principles - focusing on
1.​ Human rights as indivisible - Acknowledges that progress in civil, political,
economic, social, and cultural rights is mutually reinforcing
2.​ Economic Development as a Foundation - Acknowledges that progress in civil,
political, economic, social, and cultural rights is mutually reinforcing
 3.​ Collective Responsibility - Stresses the role of equitable economic policies in
achieving sustainable human rights.
4.​ Special Attention to vulnerable groups -
●​ The enjoyment of fundamental rights requires a holistic approach, integrating
economic, social, and cultural dimensions alongside civil and political liberties.
●​ Human rights questions should be examined globally, taking into account both the
overall context of the various societies in which they present themselves, as well as
the need for the promotion of the full dignity of the human person and the
development and well-being of the society;-
●​ The realization of the new international economic order is an essential element for the
effective promotion of human rights and fundamental freedoms and should also be
accorded priority

Module 5 - Accountability in HRs Regime

Fraser

●​ Challenges of implementing human rights at the domestic level

●​ Gap between International law and domestic realities - abstract principles in treaties
need contextualization to resonate with local communities.
●​ Over-reliance on legalism and state-centric frameworks - proposing that social
institutions such as religion and cultural norms can play a vital role in bridging this
gap
●​ Fatwas issued by Females in Indonesia (ulama) - case study to illustrate how
locally embedded institutions social institutions can influence human rights
implementation - relied on UDHR - example of how international human rights can
be used by diverse groups in diverse ways to affect even non-state actors

In December 2018, the Indonesian Consti-tutional Court unanimously ruled that the current
legal age of 16 years for girls to marry was unconstitutional. 7 The case had been brought by
three wives who had been pushed into childhood marriages and forced to quit school. The
Court held that child marriage violated the Consti-tution’s protection of a girl’s right to
education and to a healthy life, and that the differences in ages for boys and girls was
discriminatory. Importantly, the Court referred to the 155 Convention on the Elimination of
All Forms of Discrimination against Women (CEDAW) 8 and to bringing Indonesian law into
line with its international obligations. This example shows that without change at the
national level, international human rights treaties are dead letters. While there is a role for
international actors, like the UN treaty bodies, states are primarily responsible for the
domestic imple-mentation of international human rights treaties. This is a result of the
state being designated as the principal duty-bearer in the treaties, and is connected to
issues of sovereignty and consent in international law
●​ Reliance on state-driven legislative measures often neglects the role of other actors
like non-state institutions and informal social norms
●​ Calls for pluralistic framework - that respects cultural diversity while promoting
universal rights
●​ effective implementation of international human rights requires moving beyond a
purely legalistic and state-centric approach.
●​ Every organ of society is responsible for the ‘universal and effective recognition and
observance’ of human rights. Involving locally embedded social insti- tutions like
religious groups and leaders can help ensure that rights are both communicated and
implemented in culturally appropriate ways
●​ Critiques of Legalism - why legislation is not enough to protect rights
➔​ Lack of awareness of law
➔​ Overshadowing other implementation methods
➔​ Preoccupation with law - can lead to disinclination to acknowledge the law’s
limitations
➔​ Necessary focus on the state as legislator and enforcer
●​ Culture including religion - formed basis of many critiques of human rights - but also
a source and promoter of rights (Framers of UDHR - viewed their own religious
belief as a source of HR)
●​ Fraser points to social institutions’ role in general- that includes religion. But it
also includes language, kinship groups, communities etc.
Neha Jain
●​ EXPLORES the Indian SC’s use of international law - challenging the assumption
that domestic courts referencing international norms signify acceptance of legal
standards
●​ Focus on how court employs international law not as an extension of global
governance but - tool to fulfill domestic objectives - unrelated to international law’s
core purpose
●​ DPSP- art 51 - respect for international law - executive has the prerogative to ratify
treaties - CIL considered valid - unless conflicts with domestic law
●​ Indian SC used IL to
➔​ Referencing international conventions and norms to fill gaps in domestic law -
Vishakha (CEDAW), CIL of polluter pays and precautionary principle incorporated
 ➔​ Using international law as justification for directives in environmental regulation
cases
➔​ To build its image for domestic legitimacy - after emergency references to
international law
➔​ Selective engagement - not consistent - selectively champions causes that align with
its agenda - going beyond interpretation ( court nullifying the effect of reservations
to treaties specified at the time of ratification by the executive)
➔​ Parliament can delay the transformation of international obligations into domestic law
●​ The Court’s inconsistent and at times arbitrary application of international law
undermines its image as a champion of international norms.
●​ Its selective engagement highlights a domestic strategy rather than a commitment to
universal legal principles.
●​ Now, SC’s use of IL is not always with the intent of promotion HRs, but is more
nuanced and layered
➔​ First, to gain legitimacy. To show itself on the side of people, it employed IL to
essentially take control of others’ domains.
➔​ Court has become a high-profile social institution- people see it as last strand of
hope- and IL helps for an expansive interpretation of HRs. by highlighting in
Vishakha, that India has ratified CEDAW but not done anything- it has taken IL as a
tool to legitimately chastise other organs for failing in their duties towards citizens.
➔​ Arbitrariness and selective usage: favours environmental protection but not labour
rights; similarly supporting urban developers but not slum dwellers.

Justice Lost - Hafner Burton

●​ Examines effectiveness of human rights treaties focusing on their impact or lack

thereof - on world’s most repressive states
●​ Governments ratify human rights treaties - as a matter of window dressing
●​ While many governments formally commit to human rights treaties, these
commitments rarely translate into meaningful reforms where they are most needed.
●​ Paradox of HR treaties - widespread ratification but limited impact on repressive
states ( example - ICCPR and CAT)
●​ Paradox of empty promises
●​ Commitment v Compliance - repressive states join these treaties not to reform but to
gain political legitimacy and international approval while continuing repressive
practices
●​ Theories of compliance - world society approach ( ruling elites might ratify a treaty
to gain legitimation in international society, putting little e ort into aligning their
behavior with the treaty provisions)
 ●​ Treaties - more effective in democratic states - where governments can be held
accountable
●​ The authors challenge the notion that human rights treaties require time to take
effect, finding no evidence that compliance improves significantly over time in
repressive states. In some cases, reforms are sporadic and inconsistent rather than
showing a steady trend.
●​ highlight the need for stronger enforcement mechanisms and question the
over-reliance on treaty ratification as a measure of progress.
●​ Critics argue that delegating more authority to international bodies could improve
compliance. For example, the Optional Protocol to the ICCPR allows individuals to
file complaints with the Human Rights Committee, providing greater oversight.
However, this study finds that such mechanisms have negligible effects on
compliance. Repressive states that ratify the Optional Protocol often lack the political
will or resources to implement reforms, rendering these commitments ineffective.

3 hypotheses

1.​ Legal commitments to human rights treaties rarely promote reforms in repressive
states.
2.​ The gap between commitment and practice persists over time, as norms of justice are
seldom institutionalized solely through international law.
3.​ Reforms to the legal regime are unlikely to address this gap effectively.im

●​ Impact of human rights treaties - as a paradox of empty promises

Examples

●​ India: say signing ILO but still not having robust labour protections. Lack of
enforcement in informal sector. Of ratifying ICCPR, but enforcement of AFSPA in
certain areas.
 ●​ Even the alignment with IL treaties in Naz Foundation or privacy in Puttaswamy can
from SC, not legislature. This also aligns with the author. Despite signing or
ratification, there were no legislative or executive reforms to that end.

Colin Samson

●​ Critically examines the concept of UHRs - arguing that their evolution and
implementation are deeply intertwined with colonialism, racism and systemic
inequalities
●​ challenges the narrative of human rights as universally beneficial and explores their
historical and contemporary limitations, particularly for marginalized and colonized
populations.
●​ Exclusion of non-european populations - racial contract - highlights how liberal
ideals were constructed to maintain racial hierarchies
●​ Role of capitalism -
●​ Despite the formal end of colonialism - legacy persists in form of civic stratification
and systemic inequalities in western democracies
●​ Selective application of HRs - The universality of human rights is undermined by
selective enforcement. Historical atrocities, such as those in colonial settings, are
often excluded from accountability mechanisms.
●​ The Universal Declaration of Human Rights (UDHR) itself emerged in a context
that ignored the rights of colonized peoples and maintained structures of racial and
economic domination
●​ Colonialism of Human Rights

GrootBoom
 ●​ Revolving around the right to housing enshrined in Article 26 of the African
Constitution - which guarantees rights to access to adequate housing imposes
obligations on the state to take reasonable measures within available resources to
progressively realize this right.
●​ Court’s Analysis
➔​ Section 26 guarantees the right of access to adequate housing, which involves more
than merely providing housing. It includes access to land, services like water and
sanitation, and financing mechanisms.
➔​ the obligation to realize this right is progressive, acknowledging resource
constraints. The state must devise reasonable programs to meet housing needs.
➔​ A housing program must be comprehensive, coordinated, and aimed at progressively
realizing housing rights.
➔​ The program must cater to the immediate needs of those in desperate situations.
Excluding such individuals undermines the reasonableness of the program.
●​ Comparison with International Instruments
➔​ ICESCR - Article 11(1) - recognises right to adequate housing as part of adequate
standard of living
➔​ The UN Committee on Economic, Social, and Cultural Rights emphasizes the
minimum core obligations that states must fulfill, even within limited resources.
➔​ While the South African Constitution is inspired by international standards, it does
not adopt the ICESCR’s concept of "minimum core obligations." Instead, the focus
is on reasonableness in designing and implementing housing programs
●​ Reasonableness of Housing programmes - A reasonable housing program must
address the long-term housing needs and the immediate needs of those in desperate
situations. The Court emphasized that housing measures should ensure dignity,
equality, and freedom for all.
●​ The Court affirmed that socio-economic rights, including the right to housing, are
justiciable and enforceable under the Constitution.
●​ This recognition marked a shift from the traditional view that socio-economic rights
are merely aspirational and non-justiciable. The Court emphasized that these rights
cannot exist only "on paper"; the state has a constitutional obligation to take
reasonable measures to realize them.
●​ The Court clarified that the state is not required to immediately realize the right to
adequate housing for all. Instead, the obligation is progressive realization, which
acknowledges resource constraints.
●​ Progressive realization means that the state must continuously improve access to
housing over time and cannot adopt measures that regress or stall progress.

Olga Tellis

WHY DID THE PETITIONERS CHOOSE TO ARGUE RIGHT TO LIVELIHOOD

LEADING TO RIGHT TO HOUSING (rather, right against being evicted from bastis),
INSTEAD OF SOME OTHER RIGHT?
Possible response: Bec going with ‘right to housing’ (like in Grootboom) meant that they
could be asked to go live elsewhere; but they wanted to stay where they were, not pushed off
to outskirts from where it would be impossible for them to commute to work everyday. Also,
they could not have asked the court to recognise right to livelihood as a positive duty on the
state; the court outright says:

●​ 2 groups of petitioners - payment dwellers and payment dwellers + basti dwellers

●​ Maharashtra government - eviction order - under section 314 of Bombay Municipal
Corporation Act, 1888
●​ Question of depriving dwellers of right to livelihood comprehended in the right under
Article 21

●​ Section 314 - not arbitrary and unreasonable - invoked at the times of exception
●​ Principles of natural justice not violated - discretion under section 314 to be used
sparingly - have to prove necessity - burden on who claims
●​ The Court recognized that the Commissioner’s decision to remove encroachments
was justified but emphasized that a fair hearing should have been provided. The Court
 granted temporary relief by allowing the petitioners to remain on the pavements until
October 31, 1985, post-monsoon season.

Ruchita Kaundal - NHRC vis-a-vis Paris Principles

●​ Critically evaluates the NHRC of India vis-a-vis the Paris principles - examines the
structure, mandate, operations of NHRC
●​ Established under Protection of Human Rights Act 1993
●​ Areas
1.​ Pluralism and Independence - predominantly members from judiciary limiting
diversity - statutory requirement of one woman - underrepresentation - insufficient (
include members from diverse fields)
2.​ Appointment procedures and Structural independence - controlled by appointing
committee - led by PM - lacks transparency and stakeholder participation
3.​ Financial and Administrative Autonomy - resource constraints - funding approved
by Parliament ( ensure autonomy in budget allocation)
4.​ NHRC recommendations - non binding (amend PHRA to make recommendations
binding)
●​ Courts through cases have held that they must be considered binding (DK basu v State
of Bengal and State of UP v NHRC)
5.​ The NHRC has restricted authority over human rights violations by armed forces,
which are governed by special laws like the Armed Forces Special Powers Act
(AFSPA). This limitation prevents the NHRC from addressing some of the gravest
human rights violations.
6.​ Time Constraint - Complaints must be filed within one year of the alleged violation,
which excludes many victims who face barriers to timely reporting.
●​ Toothless Tiger

Anuj Bhuwania - PIL

●​ Critical Examination of PIL - initially intended as tools for empowering

marginalised communities - evolved into mechanisms that disproportionately target
the urban poor, particularly slum dwellers. The paper argues that PILs have been
 co-opted to serve elite interests and facilitate slum demolitions under the guise of
environmental preservation or urban cleanliness.
●​ Emerged in late 1970s-80s - as a progressive judicial innovation enabling courts to
address issues of systemic injustice and HRs violation
●​ It expanded access to justice by relaxing procedural rules, allowing third parties to
file cases on behalf of disadvantaged groups.
●​ From Pro Judicial tool - to process dominated by elite litigants and judges -
undermining original intent
●​ Critiques lack of procedural safeguards in PIL

Bhuwania critiques the judiciary for:

●​ Treating slum demolitions as a "public interest" without adequately considering the

impact on the displaced residents.
●​ Ignoring constitutional safeguards, such as the right to housing and dignity
●​ The flexibility of PIL procedures has led to a lack of accountability and
predictability in judicial decision-making.
●​ Absence of representation for affected parties (e.g., slum residents) often results in
unilateral decisions favoring the petitioners.

Arvind Narrain and Saumya UMA - breathing life into constitution

●​ argue that human rights lawyering in India is deeply rooted in historical, social, and
personal contexts. Far from being merely a profession, it is a response to systemic
injustice and an effort to bridge the gap between constitutional ideals and social
realities.

Sudha Bharadwaj
Module 6 - Intersectionality
Session 26

Atrey, Shreya (2020), “The Humans of Human Rights: From Universality to Intersectionality”,SSRN
Papers Click Here

●​ Grenfell tower example - caught fire - those disadvantaged at multiple levels -

cheaper lives - injustice - multiple intersecting disadvantages—poverty, race, religion,
gender, and more—result in compounded violations of human rights.
●​ Human Rights described as - rights that one has simply by the virtue of being human
●​ critiques the conventional understanding of human rights as universal entitlements
based on sameness, proposing instead an enriched model—intersectional
universality
●​ Atrey argues that existing human rights frameworks, which rely on universality and
anti-discrimination, fail to capture the complexity of lived experiences.
●​ Evolution from politics of difference discourse - to recognizing group difference
(differences are to redresses and not disregarded)
●​ Universality
➔​ One of the first principles of HRL - replicated in UDHR, ICCPR, ICESCR
➔​ Traditional view of universality in HRs - all humans, by virtue of being human, are
entitled to equal rights. It assumes commonality among individuals, focusing on
abstract sameness.
➔​ This article critiques this notion - supporting Arendt’s view on universality that - it
must account for human differences and diversity
●​ Non-Discrimination/ Anti - Discrimination
➔​ Anti-discrimination norms are foundational to human rights, aiming to eliminate
unequal treatment based on identity markers like race, gender, or religion.
➔​ Atrey critiques this framework for being reactive and limited to addressing visible
and status-based inequalities. It fails to address deeper structural and material
inequalities that intersect to perpetuate disadvantage, such as class or socioeconomic
status.

➔​ Under the non-discrimination discourse - there are two routes currently established for
addressing difference: (i) the recognition of specific rights of disadvantaged groups;
and (ii) the application of existing human rights to disadvantaged groups without
discrimination.

➔​ In the course of the first route, new rights are inscribed, and old rights are reinscribed
to be stated specifically from the standpoint of the disadvantaged groups - eg child
sexual abuse laws, accommodation for disabled people, etc - basically like CEDAW
➔​ In the second route, the norm of non-discrimination is meant to be interpreted
expansively, and as a matter of substantive rather than formal equality already
embedded in universality, to ensure that human rights actually apply to all, including
those belonging to disadvantaged groups - ICCPR - stating one, no one should be
discriminated against on basis of xxx and two, the treaty applies to everyone without
discrimination

●​ Intersectionality
➔​ Originating from - black feminist theory - intersectionality examines how overlapping
identities (e.g., race, gender, class) interact to create unique experiences of oppression
and privilege.
➔​ Atrey expands intersectionality’s application to human rights, advocating for a
nuanced approach that acknowledges the complex, multi-dimensional realities of
individuals. She proposes intersectional universality to reconcile the diversity of
human experiences with the universal ideals of human rights.
➔​ Intersectionality points out that difference in identity politics is seen all too
narrowly—as unidimensional rather than one which appreciates how diverse
differences based on race, sex and class come to intersect and combine for groups like
Black women. This process of intersection and combination is described as ‘the
dynamics of sameness and difference’ which insists on seeing structures of
disadvantage both in terms of their similarities but also, importantly, in terms of
their uniqueness. Black women’s position is thus to be construed in relation to both
Black men and white women not only in terms of what they share with them as
disadvantage based on race and sex respectively, but also in terms of their unique
position in relation to Black men and white women, as defined by their race, sex and
class taken together
➔​ People will still have different sexes, genders, sexual orientations, housing situations,
living conditions, incomes, abilities, ages etc and these identities, conditions and
contexts would define people’s position in relation to human rights. But the point of
intersectionality is to subvert at least such structures which impinge on the
enjoyment of human rights. These structures cannot be subverted until they are
known. Therefore, intersectionality both provides the cognitive framework for
understanding the complexity of these structures and insists on transforming them.
●​ Arendt’s view
➔​ Equality is a constant reminder of the difference and diversity of humans; it is the
latter which made them human.
➔​ The distinctiveness of their individuality and their condition is what is typically
human about humans. So, universality is the claim about the equality of difference.
●​ Difference discourse
➔​ Different from non-discrimination
 ➔​
➔​ Difference discourse - too narrowly constructed to appreciate full complexity of
differences
➔​ Difference is not merely one which can (should) be declared away. If we recognise
that difference is complex (intersectional) and embedded in the world, and in fact
constitutes the world, then such recognition furnishes a different basis in normative
terms. Human rights come to matter from that normative standpoint then

UN GUIDANCE NOTE ON INTERSECTIONALITY

●​ Term coined by - Kimberley Crenshaw. An intersectionality perspective is essential

for achieving equality and protecting human rights. It challenges single-axis
approaches to discrimination, advocating for holistic and context-specific
interventions.
●​ Intersectionality examines how overlapping social identities—such as race, gender,
ethnicity, and socioeconomic status—create interconnected systems of oppression
and discrimination.- exposed the complexities of structural domination and
marginalisation - it is both contextual and relational ( it exposes the socio-structural
nature of discrimination and inequality and the role of exclusionary social and
cultural norms in including or marginalizing certain categories based on specific
grounds.)
●​ The note is designed to guide practitioners in the United Nations and other
stakeholders to implement policies and interventions that account for intersectional
discrimination.
●​ Example of Intersectionality - A Muslim woman of African descent in Europe faces
discrimination not just as a Muslim or an African but at the intersection of these
identities.
Applying a perspective - that takes intersectionality into account - involves paying specific
attention and acknowledging to
1.​ the fact that the available information and data indicate that people affected by
intersectional discrimination generally belong to the groups most at risk of being left
behind; - data collection
2.​ the socio-structural nature of the discrimination, marginalization and exclusion
that perpetuate inequality within a society or specific communities and the role that
legal, economic and political frameworks, institutions and socio-cultural norms play
in this context; - capacity building