NATIONAL LAW UNIVERSITY ODISHA,

CUTTACK

COURSE OUTLINE
HUMAN RIGHTS LAW
COMPULSORY PAPER (10TH SEMESTER) 2017
COURSE OUTLINE PREPARED BY:
DR. ASHIRBANI DUTTA

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COURSE DESCRIPTION

The discourse on human rights has been central to the endeavour of conceptualizing and
realizing a just world in modern human history. The human rights paradigm, apart from that of
trade and commerce, has been one of the fundamental factors in the increased importance of
international law and in globalization of various value standards. Ironically, it is one of the most
unifying and at the same time divisive issues across nations. It is unifying in terms of its basic
premise that human rights by simply by virtue of being human are entitled to a dignified
existence and are entitled to certain inalienable and basic rights in order to live with dignity. The
divide comes into surface in terms of the exact nature of the inalienable rights which human
beings are entitled. One school of thought proposes a uniform standard of inalienable rights
whereas the other school of thought believes that uniformity of standards across the national,
cultural and social diversity in the world is not ideal.

The discourse on human rights also has serious ramifications for trade models and the structural
principles of commerce and industrialization. The effort to balance the requirement of economic
development of nations with the basic rights of the people has been notoriously difficult to
achieve, both in theory and in action. Thus, having a proper grasp of the legal framework
concerning human rights is essential for anybody working in the legal sector.

This course seeks to explore the dynamics of the human rights paradigm from a critical
perspective. The essential structure of the course is designed to facilitate both descriptive and
analytical understanding of the human rights paradigm.

OBJECTIVE OF THE COURSE

To understand the dynamics of human rights regime from a critical perspective

To understand the fundamental concepts of rights and human rights and the foundation on
which the idea of human rights is based and to trace the evolution of the concept of
human rights over time.

To understand the culture of human rights that is embedded across countries and to study
the basic legal framework within which rights operate.

To have a critical understanding of the human rights paradigm in India.

To encourage the students to have an understanding of the theoretical and practical

challenges in realization of rights.

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MODULE 1

THE CONCEPT OF HUMAN RIGHTS AND HISTORICAL EVOLUTION OF THE

CONCEPT OF HUMAN RIGHTS

The concept of rights developed a great deal in the West via the philosophical discourse from
which various theories on the basis and justification of the notion of rights and freedoms
emerged. Select theories will be explored in greater detail in this module. Such significant
philosophical threads are apparent in the modern concept of human rights which is most
frequently attributed to this philosophical discourse. Module 1 will therefore examine the rights-
based jurisprudence propagated by various theorists and the arguments behind the concept of
human rights.

Meaning and concept of Rights

Basic idea of Human Rights

The concept of Dharma and Raja Dharma

Cultural relativism and Asian values,

Natural Rights Approach, Social Contract theories, Utilitarian Approach, Positivist Approach,
Liberal Approach

Second World War and modern notion of human rights

MODULE 2

FOUNDATIONS OF HUMAN RIGHTS LAW

The conceptual foundation of the international human rights protection will be discussed in
greater detail in this module. The main objective is to clarify the concept of human rights in legal
terms, to understand the distinctive sources of law from which international human rights
protection is derived and also to understand the regional sources. The module also seeks to
address the fundamental question how human rights obligations are fulfilled, which can be
addressed either from the perspective duty-bearer (i.e. who is bound by the obligation) or from
the perspective of the right-holder (i.e. to whom the obligation is owed). It also addresses the
scope of human rights obligation i.e. duty to respect, protect and fulfill. The fundamentals
addressed in this module will be the basis of understanding what constitutes a human rights
violation in legal terms.

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 a. Sources of international human rights law

i. Treaty Law as the main source of Human Rights guarantee UN Charter, Universal
Human Rights Treaties, Regional Human Rights Treaties, IHL, International Criminal
Law

ii. Customary Law Human Rights with customary law status, IHL with customary
status, International Crimes with customary status.

iii. Resolutions and Declarations

b. Legal nature of human rights obligations

i. Who is bound by Human Rights obligation state as duty-bearers, private actors as

duty-bearers, international organizations as duty-bearers of human rights obligation

ii. To whom the obligation is owed Individual and group rights

c. Scope of obligation Duty to Respect, Duty to Protect, Duty to fulfill

MODULE 3

IMPLEMENTATION OF HUMAN RIGHTS

The possibility to implement and to enforce implementation is the characteristic fundamental to

any law. Under traditional international law, reciprocal interest provide a strong incentive for
states to abide by their obligations. That is state parties obey the treaty provision so as not to face
the consequences when other state parties decide to break them in turn. However, there is no
incentive for self-enforcement in case of human rights obligation, which clearly lacks the
element of reciprocity. On the contrary, the notion of state sovereignty and supreme authority of
state within its territory is one of the biggest impediments to the enforcement of human rights.
Therefore monitoring and accountability is crucial for its enforcement. Keeping that in mind, this
module seeks to look at human rights implementation mechanism and enforcement regime.

a. Domestic implementation of Human Rights independent national human rights

institutions, judgment of various courts of human rights such as European Court of
Human Rights,

b. Treaty-based Bodies UN treaty bodies and regional treaty bodies, state reporting
procedure, individual complaint procedure, other procedures like collective complaints
procedure, inter-state complaints procedure, inquiry procedures, advisory opinion
procedures

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 c. Charter-based Bodies UN Charter and Human Rights, The Human Rights Council, role
of Security Council, Role of ICJ and its advisory proceedings, role of other UN bodies
OHCHR in protection of Human Rights

MODULE 4

INTERNATIONAL AND REGIONAL LEGAL FRAMEWORK

Development of international human rights law reflects a shift in focus in the international law
from the rights of the states to the rights of the individual. A series of substantive human rights
guarantees in the international legal framework provides the basis of understanding of human
rights as a legal concept. This module will therefore seek to study the international law by an
array of rights. Moreover, a number of regional associations formed in various regions around
the globe, to share common culture and interest, and face common problems and challenges,
have been key players in protecting human rights. A look in to the regional legal framework will
therefore make the study comprehensive.

A. United Nations and Human Rights

a. International Bill of Rights

i. UDHR,

ii. ICCPR,

iii. ICESCR

b. Other instruments CEDAW, ICERD, CAT

B. Regional Protection of Human Rights

a. European system of Human Rights

b. Inter-American System of Human Rights

c. African System of Human Rights

d. Additional Human Rights Mechanism Arab Charter of Human Rights, South Asia
and Human Rights law SAARC, ASEAN

MODULE 5
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HUMAN RIGHTS IN INDIA

Responsibility for implementing and enforcing human rights rests primarily with the states as
they are the bearers of human rights obligations under the treaty and customary law, and because
of the responsibility that arise out of the principle of sovereignty. States have comparatively free
hand in choosing how to fulfill these duties and what bodies to entrust with this task. This
module will therefore look at Indias constitutional framework in relation to protection of human
rights and fulfilling Indias binding commitment within the international human rights
framework. It will not only look at Fundamental Rights, but also Directive Principles of State
Policy and role of judiciary in terms of enforcing these rights. In addition to judicial bodies,
states assign these responsibilities to various other institutions and agencies like police and
various actors of criminal justice system, National Human Rights Commission, National
Commission for Women, State Human Rights Commission etc. which will also be dealt with in
depth in this module.

A. Human Rights in the Indian Constitutional framework

a. Implementation of International Law

b. Fundamental Rights

c. Fundamental Duties

d. Directive Principles of State Policy

e. Constitutional remedies

f. Exercise of Fundamental Rights during Emergency

g. Role of judiciary

B. Statutory Protection

a. Protection of Human Rights Act 1993

C. Human Rights and Criminal Justice system in India rights of the accused, rights of the
victims, rights of witnesses

D. Human Rights Institutions in India National Human Rights Commission, National

Commission for Protection of Child Rights (NCPCR), National Commission for
Protection of Women (NCPW), National Commission for Minorities, National
Commission for Person with Disabilities, National Commission for Schedule Caste and
Schedule Tribes, State Human Rights Commission.

MODULE 6

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PROTECTION OF SPECIAL GROUPS

Respect for human rights and fundamental freedoms without distinction of any kind is the
fundamental rule of human rights law. However groups such as women, indigenous people,
minorities, children and internally displaced persons are often subjected to targeted attacks,
abuse and exploitation, such as racism and racial discrimination, xenophobia, genocide and
forced displacement. This module will explore the rights of these vulnerable groups protected
under the existing legal framework, international as well as domestic, and the practical
challenges in the realization of their rights.

Rights of the indigenous peoples

Rights of minorities

Rights of IDPs, refugees, migrant workers

Human rights and IHL

READING MATERIALS

1. Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial

Reasoning (1913) 23 (1) The Yale Law Journal 16

2. R W M Dias, Jurisprudence (First Indian Reprint Aditya Books Pvt. Ltd. 1994) 24-28

3. W. Friedmann , Legal Theory (Fifth Edition, Universal Law Publishing Co. 2008)

4. M.D.A Freeman (eds), Lloyds Introduction to Jurisprudence, (Eighth Edition Sweet and
Maxwell 2008)

5. Edgar Bodenheimer, Jurisprudence The Philosophy and Method of the Law (Sixth Indian
Reprint Universal Law Publishing Co. Ltd. 2009)

6. B. C. Nirmal, An Ancient Indian Perspective of Human Rights and its Relevance, Indian
Journal of International Law Vol. 43 (2003)

7. Upendra Baxi, The Future of Human Rights (Oxford University Press 2009) 33-59

8. R.M. Jois, Seeds of Modern Public Law in Ancient Jurisprudence and Human Rights-
Bharatiya Values, (Eastern Book Company 1990) 8-53, 171-199

9. Malcom D Evans, Getting to Grips with Torture (2002) 51 (2) International and Comparative
Law Quarterly 358

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10. Micheal Haeas, International Human Rights-A Comprehensive Introduction (Routledge
Taylor:London,2008),100-141

11. Philip Alston & Royal Goodman, International Human Rights Law (Oxford University Press:
UK, 2013), 157-219

12. V. R KrisnaIyer, The Dialectics and Dynamics of Human Rights in India Yesterday, India and
Tomorrow, (Eastern Law House: New Delhi 2000), 300-310.

13. Manisuli Ssenyojo, Economic, Social and Cultural Rights in International Law (Oxford &
Portland , Oregan: 2009), 1-47

14. Sandra Fredman, Human Rights Transformed- Positive Rights and Duties (Oxford University
Press: Oxford, 2008) 92-123

15. Asha Bajpai, Child Rights in India-Law, Policy and Practice (2nd ed., 2003)1-32

16. South Asia Human Rights Documentation Centre, Introducing Human Rights, (Oxford
University Press: New Delhi 2006), 66-83

17. Subhram Rajkhowa and Manik Chakraborty, Indigenous People and Human RightsThe Quest
for Justice, (R. Cambray & Co. Private Ltd., 1st edition, 2009) 306-318.

18. O. Chinnappa Reddy, The Court and the Constitution of India: Summits and Shallows
( Oxford University Press:New Delhi,2008 )173-184

19. Justice Dharmadhikari, Human Values and Human Rights (Universal Publication Co., 1st
edition, 2010),13-22

20. Rhona K.M Smith, Texts and Materials on International Human Rights (Routledge:2010) 120

21. Dr. M. Ershadul Bari, Human Protection of Human Rights

22. Justice Y.K Sabharwal, Role of (2007) 1 SCC J3

24. Nazila Ghanea, From UN Commission on Human Rights to UN Human Rights Council: On

25. Christina. M. Cerna, Universality of Human Rights and Cultural Diversity: Implementation
of Human Rights in Different Socio-Cultural Context, (1994) 16(4) Human Rights Quarterly
740

26. Arundhati Roy, Mr. Chidambarams War in 2013) 1-24

27. Upendra Baxi, The Twilight of Human Rights in India (2003) 30 (2) Indian International
Centre Quarterly 19

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28. Dr. A Subrahmanyam, Bureaucratic Insensitivity; A Threat to Human Rights in India 2001
(14) Central Indian Law Quarterly 307

29. James. W. Nickel, Are Human Rights Utopian? (1982) 11 (3) Philosophy and Public Affairs
246

30. John. O Manique, Universal and Inalienable Rights: A Search for Foundations, (1990) 12
(4) Human Rights Quarterly 465

31. Steve Charnovitz, Non-Governmental Organisations and International Law (2006) 100 (2)
American Journal of International Law 348