RELIGION- (ICCPR) A.

18- freedom of thought, conscience, religion-subject to public safety, order,

morality- free of coercion| A.19- freedom of expression, information-subject to security, reputation| A.20-
propaganda of war, racial or religious hatred prohibited| A.21- right of peaceful assembly-subject to public
order, safety.|| Headscarf ban- Turkey’s HEC banned headscarf in 1997 from public campuses in order to be
loyal to certain national principles. Respect for religious diversity is imp. For secularism. RTE has two
components- rights of individual educators and students (expression and is curtailed by censorship of
information) and institutional autonomy(conducting its own affairs needs to be balanced with public’s needs).
Turkish Consti limits academic freedom. Headscarves do not pose any threat to order, health, morality etc. Is
wearing Hijaab an important component of Islam? Religious attire is protected under A.18, 19 (ICCPR), A.9,
10 of ECHR|| Idea of HR is post-enlightenment, rationalist, secular, wester, capitalist. Rights are always
understood acc. To the political system. France bans headscarf on the ground of curbing discrimination against
women, public order, gender equality. It is imp to understand the rationale behind HR. Rights always defer to
politics. (1- diff areas of social life are often characterized as rights; 2- rights have no meaning independent of
how they are interpreted by relevant authority; 3- rights always come with exceptions/limitations which are
again governed by politics; 4- conflict of rights)| What do we mean by human equality? Is tolerance the reason
behind why every individual should be allowed to do as he pleases? Does it hamper the collective rights? We
need to read individual rights along with collective rights(both of religious groups and national identities) in
order to comprehend the reason for wearing religious symbols.||Gen Com 22 says A.18 is non-derogable.
Hudoyberganova v. Uzbekistan (HRC:2004)- prayer room closed down, students wearing hijab asked to leave
courses.| the complainant did not mention the exact violation under A.19. HRC considers that freedom to
manifest one’s religion encompasses the right to wear clothes or attire in public in conformity with individual’s
faith (A.18). no justification is provided by the state, hence a violation.
Leyla Sahin v. Turkey (ECHR 2005)- Students with heads covered or beards not allowed. Secularism has
constitutional status. Essential for democracy and acts as guarantor for equality and freedom of religion.
freedom of religion can be restricted in public spheres in the interests of secularism. Held that the move was
taken in order for maintenance of public order and protection of rights of others. In diverse societies, rights
can often conflict, and therefore need to be restricted. State enjoys a margin of appreciation, therefore the court
only needs to see whether the move was justified in principle and proportionate.
SAS v. France (ECHR 2014)- right to wear burqa/hijab. Held- extent and form of regulations governing
democratic ideologies will vary and should be left to the State to decide. State enjoys a margin of appreciation,
therefore the court only needs to see whether the move was justified in principle and proportionate. The ban
was proportionate as only concealment of face has been prohibited and penalties are very light. Aim of
legislation was to protect rights and freedoms of others. The state was protecting respect for equality b/w men
and women, respect for human dignity and minimum requirements of life in society(restrictions on
communication).
Bikramjit Singh v. France (HRC 2012)- sikh student prevented from entering classroom for wearing a keski.
Compained that this violates his right under A.18 of ICCPR. HRC held that there is no evidence to prove that
by wearing a keski, the student posed a threat to the rights and freedoms of other pupils or to order at school.
Penalty of expulsion was disproportionate-hampered education.
Aktas v france (ECHR 2009)- restriction on headscarf and keski was held valid on grounds of protecting
secularism.
REPRODUCTIVE RIGHTS- WP by Achyut Prasad- Health worker can remove fetus on the consent of the
woman. This implies that fetus may be removed within 12 weeks of conception without the consent of H. This
ignores the rights of the H which is against the idea of gender justice. Court- CEDAW requires on the basis of
equality for men and women under A.16 that both parties shall have a say on family relations and marriage
including child spacing etc. in conjugal relationships, there exists mutuality of decision making. Women
should have a say in case she does not want another child. Reproductive health is an important component of
right to life for women. Any condition requiring woman to take consent of her family/husband, women’s
empowerment will be impossible. The assumption by the petitioner is hypothetical and very rare. Therefore
the rule is not invalid.
ICCPR -right to privacy (A 17), Right to life (A 6), Right to non-discrimination (A 2). ICESR right to highest
attainable level of health. UDHR- Article 1, 2, 5, and 25 is a blend of both.
Roe v. Wade- abortion or attempt made criminal except on medical advice to save life of mother. Court- only
grounds of life of woman is not sufficient and denies due process that protects privacy, including the right to
abort. Though state cant completely deny the right, it has interest in protecting both the pregnant woman’s
health and potentiality of human life at various stages of pregnancy.
AG v. X (1992)- disallowing a 14 yr old to abort after being raped. Irish Constitution protects the right to life
of unborn but also provides for abortion in case there is substantial risk to mother’s life. A2 of ECHR protects
Right to life. Evidence given that the lady was suicidal. Court- there exists a threat to life therefore she should
be allowed to go to UK to get abortion. Mother’s right to life is extremely imp. Psychological destruction also
amounted to substantial threat. Freedom to obtain info and make available all relevant info on abortion is duty
of the state.
A, B, C v. Ireland- Right to respect privacy and family life does extend to right to abortion. || In case of C,
chilling effect of legislation denied her the rights, therefore she was given the defence.
Reproductive right as a human right- autonomy, privacy of woman. Reproductive health rights: rights that
uphold reproductive health and well-being, including rights that protect the ability to decide whether and when
to reproduce, guarantee reasonable access to adequate reproductive health services, minimize social conditions
that may undermine reproductive health and related decisions, and strengthen health and social systems to
support good reproductive health. Sri Lanka is one example where maternal mortality rate went down
considerably by increasing access to skilled health personnel and increasing number of hospitable births and
expanding a system of trained midwives for home deliveries. This is the only exception amongst other
developing countries. 1) across the world there needs to increase access to necessary services and information
and strengthen the linkage between health and human rights to support better health outcomes. 2) Right based
approaches have not worked and the same should focus on understanding of the concepts and content of human
right to reproductive health. Reproductive rights focus more on developed countries and how decisions of
reproducing can be made them. These rights are grounded in privacy, liberty, equality, autonomy and dignity.
Right to health: economic, social and cultural rights with focus on access to health service. This right is
considered to be a central right as it uphold foundational aspects of human rights
Gen Comm 14 to ICESCR- recognised freedoms and entitlements. Availability (resources),
Accessibility(elimination of barriers), Acceptability(in accordance with cultural norms),
Adaptability(changing needs of society). State has the Duty to Respect, protect and fulfil. Right to health is
limited by state’s capability.
TORTURE- Hirsi Jamaa v. Italy- prevention of torture. A3 of ECHR- no one shall be subject to torture etc.
Court has to check whether there is a risk of torture in case a person is sent back to his country of origin. A13
of ECHR talks about effective remedy. It should be effective in law and practice.
Hamdi v Rumsfeld- AUMF provides executive with the authority of law to detain enemy combatants. Prisoner
of war is not a convict but merely a war measure. Executive can only use necessary and apt force. Liberty is
the norm and detention is exception. Unless the Congress specifically bars habeas corpus, the writ will be
available even to aliens.
Hamdan v Rumsfeld- Following the United States Supreme Court ruling in Hamdi v. Rumsfeld (2004), which
established that detainees had the right of habeas corpus to challenge their detention, Hamdan was granted a
review before the Combatant Status Review Tribunal. It determined that he was eligible for detention by the
United States as an enemy combatant or person of interest. The court dismissed the govt’s argument that only
DC Courts could have exercised jurisdiction over DTA. Ex parte Quirin, in which the court recognized its
duty to enforce relevant Constitutional protections by convening a special Term and expediting review of a
trial by military convention. Instead, the AUMF, the UCMJ, and the DTA "at most acknowledge" the
President's authority to convene military commissions only where justified by the exigencies of war, but still
operating within the laws of war.
Rasul v Bush- petitioners challenged their detention as they had never been combatants against US.
Court- Congress extended the protections of the writ to all cases where any person may be restrained of his or
her liberty in violation of the constitution, or of any treaty or law of the United States. the writ of habeas corpus
has served as a means of reviewing the legality of Executive detention. The question now before us is whether
the habeas statute confers a right to judicial review of the legality of Executive detention of aliens in a territory
over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. The
congress never intended to restrict the court’s jurisdiction only to citizens. Since US had a clause with Cuba
that it will exercise complete jurisdiction, then any alien who has been detained there can invoke the federal
court’s authority. reach of the writ depended on the practical question of the exact extent and nature of the
jurisdiction or dominion exercised in fact by the Crown. Therefore, the petitioners could have challenged the
legality of their detention.
Boumediene v. Bush- the prisoners had a right to the habeas corpus under theUnited States Constitution and
that the Military Commissions Act of 2006 was an unconstitutional suspension of that right. The Court held
that the United States, by virtue of its complete jurisdiction and control, maintains "de facto" sovereignty over
this territory, while Cuba retained ultimate sovereignty over the territory, to hold that the aliens detained as
enemy combatants on that territory were entitled to the writ of habeas corpus protected in Article I, Section 9
of the U.S. Constitution. The Supreme Court held that fundamental rights afforded by the Constitution extend
to the Guantanamo detainees as well. If Congress intends to suspend the right, the Court said that an adequate
substitute must offer the prisoner a meaningful opportunity to demonstrate he is held pursuant to an erroneous
application or interpretation of relevant law, and the reviewing decision-making must have some ability to
correct errors, to assess the sufficiency of the government's evidence, and to consider relevant exculpating
evidence.
Chahal v. UK(ECHR)- Same as Hirsi Jamaa- Risk of torture.
Johnson v Jamaica (HRC)- 17 year old person sentenced to death violates A6 of ICCPR. Absence of legal rep
violates A.14. He was ill treated during detention-violation of A.7.
Validzhon v. Tajikistan(HRC)- A.10 violated as beaten severely. A.14 violated for not being granted the
presumption of innocence. A.6 violated for being sentenced to death w/o due process.
Torture under ICCPR could be committed by any person and not only state. Actions need not be as cruel or
severe.
SOCIO-ECO RIGHTS- RTE is a facilitating/empowerment right(Gen Comment 13). Freedom of speech,
from child labour, health. +ve state obligation- make education available and flexible. Personal freedom of
individuals- to choose between state and private education. (Covered u/A 13 of ICCPR). 4 As of RTE.| All
appropriate means to be undertaken and obligation is to be discharged with the maximum of its available
resources and the aim has to be to achieve progressively.| Gen (prohibit discrimination) and specific obligation
(draft laws).| Respect, protect, fulfil| Min. Core obligations- right to access, primary education, free choice of
education.| Special Rapporteur- independent expert appointed by the Human Rights Council to examine and
report back on a country situation or a specific human rights theme. He has to prepare annual reports. Factors
affecting equality of opportunity in education- (physical barriers such as infrastructure, financial barriers such
as income, linguistic barriers). Brown v Board- equal opportunity-separate but equal not good for education.
It leads to discrimination. Education the ost imp function of the state Unni Krishnan v AP- right to basic
education a fundamental right to life to be r/w directive principle 41. No FR for professional education. Looks
at A.13 (guarantee the right wrt maximum available resources, to achieve progressively.)
A.28 of Convention of rights of Child, A.10 of CEDAW, A.3 of ICCPR and ICESCR- equal access to men
and women of all rights.
DH and Ors v. Czech Republic- policy of the government to send the Roma students to local schools did not
solve any good purpose as the decision remained discriminatory against the minorities as they did not
understand the language used in the school.
Mohini Jain v. Karnataka- constitutional right to education because education is essential to the fulfillment of
the fundamental rights of dignity and life. The court links the right to education to the right to life by reasoning
that to sustain life a human being requires the fulfilment of all the enabling rights which create life of dignity.

FRAGMENTATION- a. Proliferation of international regulations. b. Forum shopping. c. Overlapping

jurisdiction. d. Conflicting judgments.|| New institutions have departed away from traditional principles that
lead to conflicting jurisprudence because the rule of law has been given different interpretations.One of the
causes is the diversification through proliferation – Special tribunals on HR, Law of the sea, Environmental
Law – Different tribunals interpret law differently. Examples – ECHR’s interpretation of territorial
reservations different from ICJ in Loizidou Case. ICTY deviated from the ‘effective control’ test laid down in
Nicaragua case in the Tadic Case.
Tadic Case – Analysed the jurisprudence in Nicaragua Merits Case – US held responsible for breached in
Humanitarian Law committed by Contras that were organised and funded by them – To hold a state responsible
effective/direct control has to be established – Tadic Case (ICTY) overruled that and stated overall control is
sufficient.
ICTY- . Gave various conflicting judgments.Example – ICJ Advisory opinion where it said that armed
reprisals in armed conflict should be governed by proportionality. ICTY – Martic Case – Armed reprisals are
altogether prohibited.
Another issue- Should economic institutions – the WTO, the World Bank or International Monetary Fund
(‘IMF’) – orient their activities by human rights standards; or should human rights organs stay clear from
assuming jurisdiction over matters that seem predominantly “economic”?
The Nicaragua requirement of “acting under specific instructions” could be reasonably applied to the former,
but not to the latter. An organised military group acts in a relatively autonomous way. To create accountability
it is sufficient that the group is under the overall control of a state irrespective of whether each of its activities
was done under specific instructions. On this basis, the Appeals Chamber overruled Nicaragua.
Celebici Case – Tadic case was challenged as they contended that ICTY is bound by the decisions of the ICJ
as it is the principal judicial organ. Response was that ICTY is an autonomous judicial body and there is no
hierarchical relationship.
The Trial Chamber dismissed the motion as in its view, the ICJ dealt with state responsibility while the ICTY
dealt with individual responsibility. In addition, the ICTY had anyway already pronounced on many issues
involving considerations of the same kind and moreover the possibility of a contradiction was based purely on
speculation.
Solution- Proposal by HR activists to mainstream HR into the aspect of regular business of government.
Mainstreaming as hegemony. 1)Biases of Rights Expertise – Administrative decisions making should include
HR professionals – Could hinder the political process as it will focus too intensely on redistribution and other
issues – Any human rights issue is not the ‘right’ issue; 2) Commitment or co-option – Stability of these
‘Human Rights experts’- May possibly fuse with economic values and administrative goals – The more they
seek to carry out their interests in a professional way the more it will be similar to other experts; 3) Virtues of
Critique and Utopia – Wrong preferences highlighted by HR experts – Utopian ideals that are unable to achieve

TREATIES, DECLARATIONS, RESERVATIONS- As a result of reservations, multilateral agreements end

up fragmenting into various bilateral agreements. Strasbourch approach to reservations- invalid reservation
will be deemed as no reservation and the provision will have complete effect over the party. However, a review
procedure should be set up for periodic checks of invalid reservations whether the conditions for reservations
still exist or not and inducing the states to gradually move their law in line with intl. law. A monitoring body
should only judge the legality. States should have the right to decide whether they accept it or not.|| Confronting
Racial Disc.- Equality is the governing principle in society and law. Characteristics which people inherit, they
cannot be made subject to discrimination on that. CERD works by analysing and commenting on reports by
States which are obliged, according to Article 9(1) of the Convention, to report ‘(a) within one year after the
entry into force of the Convention for the State concerned; and (b) every two years and whenever the
Committee so requests. in the absence of an initial report,‘the Committee shall consider as an initial report, all
information submitted by the State Party to other organs of the United Nations or, in the absence of such
material, reports and informationprepared byorgans of the United Nations’. || Convention sets out a complex
system for addressing disputes in cases where ‘a State party considers that another State party is not giving
effect to the provisions of this Convention’. | The Committee has recently added a‘follow-up procedure’ to
check through on implementation of its recommendations. Article 1 of CERD In this Convention, the term
"racial discrimination" shall mean 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.
A.2- applicable not just to state but also citizens of the state; A.3-condemning racial segregation and apartheid;
A.4- racial hatred an offence; A.5 covers various ESC and CP rights. A.6 talks about effective remedy by
courts.
CERD covers national, ethnic, linguistic minorities too. It also covers immigrants, etc.
Stephen Hagan v. Austalia- “E.S. Nigger Brown Stand” is discriminatory. A.14 of CERD- that use and
maintenance of the offending term can at the present time be considered offensive and insulting, even if for
an extended period it may not have necessarily been so regarded. Living instrument.
EQUALITY- Brown v board|| Plessy v ferguson- diff coaches for diff races did not lead to any inequality or
differentiation as there was no discrimination in the services being provided. Separate but equal was upheld.
|| Hoffman reading: Minority clause in ICCPR was the first step towards recognising minority rights. Roma
people were one such minority. They were never mentioned in the debates on self-determination, collective
rights etc.
DECOLONISATION- colonisers accepted the right to self-determination, yet did not free their colonies.
ICCPR recognised self-determination as a right. Mandate System in order to civilise the ones who could not
govern themselves. Class A, B, C (most control of Mandatory in C). from mandates to trusteeship-
international peace and security, self govt, respect for human rights, equal treatment.
VCLT- A.18-state should refrain from doing actions that would defeat the purpose of treaty| A unilateral
statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or
acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State. A.19- Reservation can be made when signing or ratifying, unless it is
prohibited, only specified reservations can be made, reservation is incompatible with object and purpose. A.20-
no acceptance required if it is expressly authorised. When its imp that the treaty be accepted in entirety,
reservation would require acceptance. Acceptance of reservation means the parties acknowledge that they are
bound. If an intention to not be bound is clear from an objection made, then the intention will be upheld. A.21-
A reservation established with regard to another party Modifies for the reserving State in its relations with that
other party, the provisions of the treaty to which the reservation relates to the extent of the reservation; and
vice versa. A.22- reservation may be withdrawn at anytime unless the treaty provides otherwise. A.27- Internal
law no justification for failure to perform treaty. Belilos case (ECHR): Reservation should be clearly made
and should contain a brief statement of domestic law concerned which is against the treaty provision.
Irrespective of the validity of reservation, Switzerland is bound by the Convention. || Loizidou v. Turkey-
alleged violation of right under ECHR. When a state exercises effective control on an area outside its national
territory, it is its prerogative to secure the rights and freedoms set out under the Convention. Following Belilos,
held that the declaration made was illegal, hence null and void, and could be severed.
Week 5- Article 4 (1) of the ICCPR -In time of (1) public emergency which threatens the life of the nation
and (2) the existence of which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant (3) to the extent strictly required by
the exigencies of the situation, (4) provided that such measures are not inconsistent with their other obligations
under international law and (5) do not involve discrimination solely on the ground of race, colour, sex,
language, religion or social origin.|| There are certain non-derogable rights such as right to life, liberty,
expression. Sircaussa Principles are also more or less about A.4 of
ICCPR- A.1- Self Determination || A.4- Derogation in case of threat to security/existence-only till exigencies
exist.|| A.6-right to life-death only in most serious cases-can seek pardon-no death penalty to under age
people.|| A.7- prohibition of torture/inhuman treatment. No medical experiment without consent.|| A.9 right to
liberty and security-no arbitrary arrest-general rule is not detention but liberty-suspect entitled to judicial
remedy-right to compensation.|| A.10- persons denied of liberty shall be treated with dignity. || A.14- equality
before courts-fair hearing-competent representation-presumption of innocence-adequate time for defence to
be given-trial without undue delay-right to appeal-prohibit double jeopardy.|| A.17- no arbitrary interference
with privacy/family/home or any attack on reputation.|| A.18- right to freedom of thought, conscience, religion-
complete choice-no coercion-may be subject to morals, public safety, health.|| A.19- right to hold opinions,
expression, receive info-subject to reputation of others or security/morals etc.|| A.20- prohibition on
propaganda of law/religious hatred.|| A.21- right to peaceful assembly||

ICESCR- A.6- right to work, livelihood|| A.12- right to enjoy highest attainable standard of physical/mental
health-prevention of diseases, creation of medical services.|| A.13- RTE- education is for overall dev.-
promotes understanding, dignity, tolerance- free primary education for all-secondary education to be made
generally available-progressive implementation-international cooperation to be taken.

ECHR- A.2-right to life|| A.3- Prohibition of torture|| A.6-Fair Trial|| A.7- no punishment without law|| A.15-
derogation in times of emergency situations
CEDAW- A.12-appropriate steps to eliminate discrimination against women in the field of health-equal access
to healthcare.|| A.10- appropriate steps to eliminate discrimination against women in the field of education-
equal access to education.

UNCAT- A.1-For the purposes of this Convention, torture means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as
obtaining from him or a third person information or a confession, punishing him for an act he or
a third person has committed or is suspected of having committed, or intimidating or coercing
him or a third person, or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.|| A.3- State party not to deport if there is
a risk of torture.|| A.12- Complaints should be dealt with promptly and impartially.

OP UNCAT- The objective of the present Protocol is to establish a system of regular visits
undertaken by independent international and national bodies to places where people are deprived
of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or
punishment.