Texts and Materials on International Human Rights

Description

Texts and Materials on International Human Rights offers a carefully tailored overview of the subject that covers sources and theories, institutions and structures, and substantive rights. The fourth edition is fully updated to include all key developments in the law, in particular issues around reform in the UN and the topical application of human rights around the world. This collection of materials offers a comprehensive overview of the institutional structures relevant to international human rights law, crucial to the understanding of how law works in this challenging area. Designed to guide students through the fundamental texts for this subject, the author’s commentary contextualises each extract to explain its relevance, while highlighted further reading makes links to cutting-edge academic commentary to provide next steps for student research. Offering a clear text design that distinguishes between materials and author commentary, and including reflective questions throughout to aid understanding, this book is ideal for students seeking to engage with the key issues in the study of international human rights. Cover Half Title Title Copyright Outline contents Detailed contents Preface Table of cases Table of legislation Table of treaties and instruments 1 Sources of international human rights 1.1 Treaties 1.1.1 What are treaties? 1.1.2 How do States agree to treaties? 1.1.3 When do treaties become legally binding? 1.1.4 What happens if a treaty is concluded in a foreign language? 1.1.5 Subsequent amendments and additions to treaties 1.1.6 Principal international human rights treaties 1.1.7 The issue of overlapping treaty obligations 1.2 Customary international law 1.2.1 Altering and rejecting emergent customs 1.2.2 Customary guarantees against torture and slavery 1.2.3 Case study: extracting custom from the United Nations Convention on the Rights of the Child 1.2.4 Jus cogens 1.3 Other international and regional instruments 1.3.1 Jurisprudence 1.3.2 Case study: corporal punishment of children 1.3.2.1 The salient treaty provisions 1.3.2.2 The jurisprudence 1.3.2.3 Comment 1.4 A practical guide to sources 1.4.1 Treaties 1.4.2 Jurisprudence 1.4.2.1 Interpretative and guiding comments 1.4.2.2 State and treaty monitoring bodies reports 1.4.2.3 Case law 1.4.2.4 Virtual library websites 1.4.2.5 Reports of NGOs and other bodies 1.4.3 Academic commentaries Further reading 2 Key concepts: universality, interdependence and categories of rights 2.1 Universality 2.1.1 Non-discrimination in the application of human rights 2.1.2 Minority protection 2.1.3 The League of Nations and minority rights 2.1.4 A change in emphasis: universal rights 2.1.5 A return to minority rights? 2.1.6 Developing sectoral and group rights 2.2 Cultural sensitivity 2.2.1 Celebrating cultural diversity 2.2.2 Reconciling traditional culture with human rights 2.2.2.1 Female genital mutilation 2.2.3 The role of regional organisations 2.2.3.1 Europe 2.2.3.2 State’s margin of appreciation 2.2.3.3 Africa 2.2.3.4 Americas 2.2.4 Reservations and declarations: a practical solution? 2.2.4.1 Case study: CEDAW and claimed conflicts with Islam 2.3 Positive obligations on States to conform to human rights 2.4 Indivisibility and interdependence, or a hierarchy of rights? 2.4.1 A Cold War product? – two categories of rights 2.5 Interdependence and Indivisibility 2.5.1 The right to clean water and adequate sanitation 2.5.2 The right to life 2.5.3 A family of rights 2.6 Evolving and developing rights Further reading 3 States and treaty obligations 3.1 ‘Universal human rights’ and ratification 3.1.1 The unusual position of the Convention on the Rights of the Child 3.2 Limitations on State compliance: reservations, declarations, derogations and denunciations 3.3 Reservations 3.3.1 Nature and scope of reservations 3.3.2 The ICJ’s approach to developing reservations 3.3.3 The effect of reservations 3.3.4 The International Covenant on Civil and Political Rights and reservations 3.3.5 Case study: the Convention on the Elimination of All Forms of Discrimination against Women and Reservations 3.3.6 Reservations and objections thereto – case study on Djibouti and the Convention on the Rights of the Child 3.3.7 United Nations’ pressure to remove reservations 3.3.8 Comment on reservations and human rights treaties 3.4 Declarations 3.4.1 Declarations as reservations 3.4.2 Case study on reservations/declarations 3.5 Derogations 3.5.1 A typical derogation clause – the ICCPR 3.5.2 The approach of the Human Rights Committee 3.5.3 Regional examples of derogation clauses 3.5.4 Case study: United Kingdom 3.5.5 Non-derogable provisions 3.5.6 The approach of the European Court of Human Rights 3.6 Denunciations 3.6.1 Terminating treaty obligations 3.6.2 Denunciation and United Nations human rights treaties 3.6.3 Regional human rights instruments and denunciations 3.6.4 Individual petitions and denunciations 3.6.5 Case study of denunciation: International Covenant on Civil and Political Rights, first optional protocol Further reading 4 Human rights organisations and key institutions: United Nations and international entities 4.1 International organisations 4.2 The United Nations 4.2.1 Purpose of the United Nations 4.2.2 Structure of the United Nations 4.2.3 General Assembly 4.2.4 Economic and Social Council 4.2.4.1 ECOSOC’s functional commissions 4.2.4.2 Commission on the Status of Women (CSW) 4.2.4.3 Sustainable development 4.2.4.4 Reform of the Economic and Social Council? 4.2.5 Human Rights Council 4.2.5.1 Creating the new Council 4.2.5.2 Membership of the Council 4.2.5.3 Powers of the Council 4.2.5.4 Human Rights Council Advisory Committee 4.3 International courts 4.3.1 International Court of Justice 4.3.2 International Criminal Court 4.4 The International Labour Organisation Further reading 5 Regional human rights organisations and key institutions 5.1 Regional organisations 5.2 Europe 5.2.1 Council of Europe 5.2.1.1 Committee of Ministers 5.2.1.2 European Commissioner on Human Rights 5.2.1.3 European Committee of Social Rights 5.2.2 Organisation of Security and Cooperation in Europe 5.2.2.1 Office for Democratic Institutions and Human Rights 5.2.2.2 Representative on Freedom of the Media 5.2.2.3 High Commissioner on National Minorities 5.2.2.4 Field activities 5.2.3 European Union 5.2.3.1 European Union Fundamental Rights Agency 5.3 The Americas 5.3.1 Organisation of American States 5.3.1.1 Inter-American Commission on Human Rights 5.4 Africa 5.4.1 African Union 5.5 Others 5.5.1 Commonwealth of Independent States 5.5.2 League of Arab States 5.5.3 Asia Further reading 6 Monitoring and enforcing human rights: extra-conventional mechanisms 6.1 Human Rights Council 6.1.1 Universal periodic review 6.1.2 Complaint procedure 6.1.3 Special sessions 6.1.4 Special procedures: thematic and country rapporteurs 6.2 The United Nations Educational, Scientific and Cultural Organisation (UNESCO) 6.3 United Nations Security Council: responsibility to protect, and sanctions 6.4 International criminal courts, tribunals and processes 6.4.1 Ad hoc international criminal tribunals 6.4.2 Mixed courts and tribunals 6.4.2.1 Sierra Leone Special Court 6.4.2.2 East Timor special panels 6.4.2.3 Others 6.4.3 International criminal court 6.4.3.1 Comment 6.4.4 Case study: first International Criminal Court warrants and trial 6.4.5 Truth-finding 6.5 Organisation of American States Inter-American Commission on Human Rights Further reading 7 Implementing human rights treaties: committees and courts 7.1 United Nations treaty monitoring bodies: conventional mechanisms 7.1.1 Creation of committees 7.1.1.1 Exception: Committee on Economic, Social and Cultural Rights 7.1.2 Administrative, secretarial and research support 7.1.2.1 Exception: Committee on the Elimination of Discrimination against Women 7.1.3 Powers of committees 7.1.4 Initial and periodic reports by States to treaty monitoring bodies 7.1.4.1 Comment on reports 7.1.4.2 Non-submission of reports/incomplete reports 7.1.4.3 Exception: early warning measures and urgent action procedures 7.1.5 Inter-State complaints 7.1.6 Individual communications 7.1.6.1 Comment 7.1.6.2 Admissibility criteria and communications process 7.1.6.3 Remedies available to the individual 7.1.7 Independent enquiries by committees 7.1.8 General comments 7.1.9 On-site visits 7.2 Regional systems: creating judicial mechanisms 7.2.1 European Court of Human Rights 7.2.2 European Committee for the Prevention of Torture and the European Committee of Social Rights 7.2.3 Inter-American Court and Commission of Human Rights 7.2.4 African Commission and Court of Human and Peoples’ Rights 7.2.5 Association of South East Asian Nations (ASEAN) 7.2.6 Arab Court of Human Rights? 7.3 Remedies for individuals Further reading 8 Extending the duties to protect and respect human rights: non-State actors 8.1 Human rights education and training 8.2 Non-governmental organisations 8.2.1 What are NGOs? 8.2.1.1 List of principal international human rights NGOs 8.2.1.2 Case study: anti-slavery 8.2.2 How do NGOs contribute to human rights? 8.2.2.1 Generating awareness of human rights 8.2.2.2 Contributing to international standard-setting 8.2.2.3 Contributing towards work of treaty monitoring bodies 8.2.2.4 Case study: CERD 8.2.2.5 Universal periodic review before the UN Human Rights Council 8.2.2.6 Prompting the implementation of human rights 8.3 Business and multinational corporations 8.3.1 Guiding principles on business and human rights 8.4 Educators, lawyers and individuals 8.4.1 Education Further reading 9 Children 9.1 Children as humans 9.1.1 Why separate rights? 9.1.2 Secondary violations of rights 9.2 Tabulating children’s rights 9.3 The United Nations Convention on the Rights of the Child 9.3.1 What is the applicable definition of a child? 9.4 Governing principles 9.4.1 ‘The best interests of the child’ 9.4.2 ‘Participation’ of the child in decisions affecting him or her 9.4.3 Provision of a safe environment and basic needs 9.4.3.1 Family rights 9.4.3.2 Child abduction 9.4.4 Protecting the child from harm 9.4.4.1 Child labour 9.5 Regional instruments 9.5.1 African Charter on the Rights and Welfare of the Child Further reading 10 Human rights defenders 10.1 Who are human rights defenders? 10.2 What do human rights defenders do? 10.2.1 Case Study: Business and Human Rights 10.2.2 Risks and Dangers 10.3 Rights of human rights defenders 10.4 Duties of human rights defenders 10.5 International Protection Framework 10.5.1 Special Rapporteur on the situation of human rights defenders 10.5.2 Treaty Bodies 10.6 Regional framework 10.6.1 Europe 10.6.2 Latin America and the Caribbean 10.6.3 Africa Further reading 11 Indigenous peoples 11.1 Towards recognition of indigenous rights 11.1.1 ILO successes in evincing indigenous rights 11.2 Invoking minority rights 11.2.1 Language rights 11.2.2 Religious rights 11.2.3 Other 11.2.4 International decade of the world’s indigenous people, towards legal rights 11.2.5 Regional initiatives 11.3 The scope of ‘indigenous people’ 11.4 Rights claimed by indigenous people 11.5 The right to self-determination 11.5.1 Towards autonomy for indigenous peoples 11.5.2 Models for autonomy 11.5.2.1 Australia 11.5.2.2 Canada 11.5.3 Recognising cultural autonomy and rights 11.6 Land rights 11.6.1 Conflicting land rights: pre-existing and new 11.6.2 Case study: New Zealand, Maori peoples and the Treaty of Waitangi 11.6.3 Establishing native title 11.6.4 Land, natural resources and development 11.6.5 Restitution or compensation 11.7 Cultural rights 11.7.1 Cultural genocide? Further reading 12 Prisoners, detainees and convicts 12.1 Equality before the law 12.1.1 Recognition as a person before the law 12.1.2 Non-discrimination/equality before the law 12.1.3 Case study: women 12.2 Arrest 12.2.1 Recording detainees 12.3 Enforced/involuntary disappearances 12.3.1 The international prohibition 12.3.2 Duty to investigate disappearances 12.3.2.1 Extraordinary rendition 12.3.3 The Americas 12.3.4 Case study 12.3.5 Other examples 12.4 Detention pending trial 12.4.1 Terrorism and derogations 12.4.1.1 United States of America detainees in Guantanamo Bay, Cuba/Bagram, Afghanistan/Kandahar, Afghanistan/Charleston, USA 12.4.1.2 Case study: United Kingdom 12.5 Torture and the use of force 12.5.1 At arrest 12.5.2 Effective investigation of allegations of torture 12.5.3 Deaths in custody – Australia and aboriginal deaths in custody 12.6 Fair trial 12.6.1 Access to a court 12.6.2 Independent and fair judiciary 12.6.2.1 Judicial appointments 12.6.2.2 Termination of judicial appointment 12.6.3 Trial in absentia 12.7 Detention after conviction 12.7.1 Prisoners right to vote 12.7.1.1 Case study: prisoner voting in the UK 12.8 Juveniles in detention and court 12.8.1 Case study: ‘child killers’ 12.9 Capital punishment 12.9.1 Case study: ‘death row’ 12.9.2 Moves towards abolition of the death penalty Further reading 13 Refugees, stateless persons and internally displaced persons 13.1 Who is a refugee? 13.1.1 Definition of refugee 13.2 Procedures for determining refugee status 13.2.1 Children 13.2.2 Procedural safeguards 13.3 Termination of refugee status 13.4 Regional instruments and criteria for determining refugee status and addressing refugee rights 13.4.1 The Americas 13.4.2 Africa 13.4.3 Europe 13.4.4 Other regions 13.4.4.1 The Middle East and Asia 13.5 Rights of refugees 13.5.1 Refugees as aliens 13.5.2 Equality of treatment and the need for subsistence 13.5.3 Increasing vulnerability – conflict situations 13.6 Granting asylum to refugees and others 13.7 Internally displaced persons 13.8 High Commissioner for Refugees 13.9 Stateless persons Further reading 14 Women 14.1 Leading the way: the International Labour Organisation 14.2 Equality 14.2.1 Non-discrimination 14.2.2 Equality in law – litigating the right 14.2.2.1 Human Rights Committee – Communications 14.2.2.2 European Court of Justice – preliminary rulings 14.2.3 Towards equality of rights between men and women 14.2.4 Affirmative action/positive discrimination 14.2.4.1 European Court of Justice – case law 14.2.5 Case study: women and political participation 14.3 Tabulating women’s rights 14.3.1 Monitoring progress towards the Beijing goals and UN women 14.3.2 A positive obligation on States? 14.4 Protection from persecution: trafficking, exploitation 14.5 Violence against women 14.5.1 Committee on elimination of discrimination against women – communications 14.5.2 Regional provision in the Americas 14.5.3 The European agenda 14.5.4 Investigating the problem – recent UN developments 14.5.4.1 World Health Organisation report 14.6 Family rights: marriage and children 14.6.1 The right to enter freely into marriage 14.6.1.1 The right to marry 14.6.1.2 Minimum age for marriage 14.6.1.3 Consent to marriage 14.6.2 A correlative right to divorce and remarry? 14.6.3 Reproductive rights 14.6.3.1 Children and women – rights intertwined? 14.6.3.2 A right to abortion? 14.7 Regional instruments and approaches to women’s rights 14.7.1 Africa Further reading 15 Emerging issues and challenges 15.1 Human rights and the sustainable development goals 15.1.1 The UN Millennium Development Goals 15.1.2 Towards the UN Sustainable Development Goals 15.1.3 The Sustainable Development Goals – SDGs 15.1.4 Human rights and the SDGs 15.2 Resource mobilisation, human rights and the SDGs 15.2.1 The ‘obligation to take steps’ and ‘progressive realisation’ 15.2.2 What does this mean for States? 15.2.2.1 What are ‘resources’? 15.2.2.3 The obligation to devote maximum available resources 15.2.2.4 The non-retrogression obligation 15.3 Human rights and climate change 15.3.1 Linking human rights and climate change 15.3.2 Responding to human rights and climate change Further reading Index