International Human Rights Law and Practice

Description

This unique textbook merges human rights law with its practice, from the courtroom to the battlefield. Human rights are analysed in their particular context, and the authors assess, among other things, the impact of international finance, the role of NGOs, and the protection of rights in times of emergency, including the challenges posed by counter-terrorism. In parallel, a series of interviews with practitioners, case studies and practical applications offer multiple perspectives and challenging questions on the effective implementation of human rights. Although the book comprehensively covers the traditional areas of international human rights law, including its regional and international legal and institutional framework, it also encompasses, through distinct chapters or large sections, areas that have a profound impact on human rights worldwide, such as women's rights, human rights and globalisation, refugees and migration, human rights obligations of non-state actors, debt and human rights, and others. Cover Half-title page Title page Copyright page Dedication Frontispiece Contents Table of Cases List of Abbreviations Introduction 1 International Human Rights Law and Notions of Human Rights: Foundations, Achievements and Challenges 1.1 Introduction 1.2 The Development of Human Rights and International Human Rights Law 1.2.1 Foundations 1.2.2 The American and French Declarations of Rights 1.2.3 The Struggle for Rights in the Nineteenth Century 1.2.4 World War I, the League of Nations and Human Rights 1.2.5 World War II, the Holocaust and the Foundations of the International Human Rights System 1.2.6 The UDHR: Origins, Content and Significance 1.2.7 Cold War and Decolonisation 1.2.8 The Growth of International Human Rights Law 1.3 Current Challenges 1.3.1 International/Cross-border Dimension of Violations 1.3.2 Responsibility of Multiple Actors 1.3.3 Effective Monitoring and Implementation 1.3.4 Human Rights Imperialism and Exceptionalism 1.4 The Idea of Human Rights: Theories and Critiques 1.4.1 Moral and Liberal Human Rights Theories 1.4.2 Meeting the Challenge: Reconstructing Human Rights 1.5 Universal Human Rights: Contestations and Practices 1.5.1 The Debate Interview 1.1: Human Rights and the Uprisings in the Arab World (Moataz El Fegiery) 1.5.2 Experiences in Combating Female Genital Cutting/Mutilation Further Reading 2 International Human Rights Law: The Normative Framework 2.1 Introduction 2.2 Sources 2.2.1 Treaties 2.2.1.1 Treaty-making 2.2.1.2 Reservations 2.2.2 Customary International Law 2.2.2.1 The UDHR and Customary International Law 2.2.3 Judicial Decisions as Source of Law 2.2.4 Soft Law 2.2.5 UNDRIP: A Soft Law Success Story? 2.2.6 Jus Cogens and Erga Omnes 2.3 Principles, Rights, Obligations and Scope of Application 2.3.1 Principles 2.3.2 The Concept of Rights 2.3.3 The Right to Equality and Non-discrimination 2.3.4 Obligations 2.3.5 Derogation in Times of Emergency 2.3.6 Scope of Application 2.4 Implementation 2.4.1 The Role of National Human Rights Institutions Interview 2.1: Reflections on the Work of Uganda’s Human Rights Commission (Med S. K. Kaggwa) 2.5 State Responsibility and Human Rights Treaties as Self-contained Regimes 2.6 Practical Application: The Role of Law Reform Interview 2.2: The Campaign to Repeal Pakistan’s Hudood Laws (Sohail A. Warraich) Further Reading 3 Human Rights in Practice 3.1 Introduction 3.2 Civil Society 3.3 Social Movements 3.4 NGOs 3.4.1 General Considerations 3.4.2 Human Rights NGOs 3.4.3 Assessing the Role of Human Rights NGOs 3.5 Human Rights Defenders Case Study 3.1: NGOs and Human Rights Protection in Sudan 3.6 Legal Professionals and Human Rights 3.7 Health Professionals and Human Rights 3.8 Human Rights Field Officers Interview 3.1: Experiences of a UN Human Rights Officer (Huma Shakeb Khan) 3.9 Human Rights Strategies 3.9.1 Documentation and Fact-finding Interview 3.2: Documenting Human Rights Violations in Volatile Environments: The Libyan Experience (Elham Saudi) 3.9.2 Human Rights Reporting 3.9.3 Monitoring 3.9.4 Advocacy 3.9.5 Awareness-raising, Capacity-building and Human Rights Education Case Study 3.2: Responding to Serious Human Rights Violations in Darfur, Sudan – Strategies, Critiques, Impact Further Reading 4 The United Nations Charter System 4.1 Introduction 4.2 The Human Rights Dimension of the Charter 4.3 The Office of the High Commissioner for Human Rights 4.4 The HRC 4.4.1 The UPR 4.4.2 The HRC’s Complaints Procedure 4.5 Special Procedures Interview 4.1: With Former UN Independent Expert (Cephas Lumina) 4.5.1 Communications 4.5.2 Country Visits 4.5.3 Annual Reports Case Study 4.1: Reprisals against Those Collaborating with UN Human Rights Procedures 4.6 The UNGA and Human Rights 4.7 The UNSC 4.7.1 Fact-finding in Practice: The UN Mission in the Gaza Conflict Further Reading 5 The UN Human Rights Treaty System 5.1 Introduction 5.2 Common Features of International Human Rights Treaty Bodies 5.3 Reporting Procedure 5.3.1 Overview Interview 5.1: Using Shadow Reports to Promote Gender Equality and Combat Sexual Violence: South Africa (Lesley Ann Foster) 5.3.2 Strengthening the Reporting Procedure 5.4 General Comments/Recommendations 5.5 Complaints Procedures and Jurisprudence of Treaty Bodies 5.5.1 Overview 5.5.2 The HRCtee 5.5.3 Breadwinners, Social Security and Discrimination: Zwaan-de Vries v. The Netherlands 5.5.4 The CERD 5.5.5 Still Facing Discrimination: Durmic v. Serbia and Montenegro 5.5.6 The CtAT 5.5.7 Rendered Defenceless: Agiza v. Sweden 5.5.8 The CtEDAW 5.5.9 ‘We Don’t Believe You’: Vertido v. The Philippines 5.5.10 The CtRPD 5.5.11 Shortchanged: Nyusti and Takács v. Hungary 5.5.12 Achievements and Challenges Interview 5.2: Working for the CESCR (Eibe Riedel) Further Reading 6 Regional Human Rights Treaty Systems 6.1 Introduction 6.2 The European Human Rights System 6.2.1 Overview 6.2.2 The ECHR 6.2.3 Key Institutions 6.2.4 The ECtHR: Structure and Functions 6.2.5 Jurisprudence of the ECtHR 6.2.5.1 Development of the ECtHR’s Jurisprudence 6.2.5.2 The ECtHR’s Interpretation of the ECHR 6.2.5.3 Responses to the ECtHR’s Jurisprudence 6.2.6 Impact Interview 6.1: The Nature and Impact of Litigation Concerning Turkey (Başak Çali) Interview 6.2: The Nature and Impact of Litigation Concerning Turkey and Russia (Bill Bowring) 6.2.7 The Struggle for Efficiency, Effectiveness and Institutional Reforms 6.2.8 The EU 6.3 The Inter-American Human Rights System 6.3.1 Overview 6.3.2 The IACHR 6.3.3 The IACtHR 6.3.4 Impact Interview 6.3: An Intimate Experience of the IACtHR as Litigant and Senior Staff Attorney (Oswaldo Ruiz-Chiriboga) 6.4 The African Human Rights System 6.4.1 Overview 6.4.2 The ACmHPR Case Study 6.1: Modise v. Botswana and the Question of Nationality Rights 6.4.3 Impact 6.4.4 The ACtHPR 6.4.5 African Regional Economic Courts Interview 6.4: Making the System Work (Ibrahima Kane) 6.5 The Arab Human Rights System 6.6 Towards an Asian Human Rights System? 6.7 Comparison of Regional Systems Further Reading 7 Individual Complaints Procedures 7.1 Introduction 7.2 Admissibility 7.2.1 Jurisdiction 7.2.1.1 Rationae Personae: Who can Bring a Complaint? 7.2.1.2 Against Whom can a Complaint be Brought? 7.2.1.3 Rationae Materiae: What Rights? 7.2.1.4 Jurisdiction in Respect of Extraterritorial Conduct 7.2.1.5 The Long Reach of the ECHR: Al-Skeini v. UK 7.2.1.6 Rationae Temporis: When? 7.2.2 Exhaustion of Domestic Remedies 7.2.2.1 What Remedies Must be Exhausted? 7.2.2.2 ‘An Affront to Common Sense and Logic’: Dawda Jawara v. The Gambia 7.2.3 Other Procedural Requirements 7.2.3.1 Time Limits 7.2.3.2 Duplication 7.2.3.3 Well-foundedness 7.2.3.4 Abuse of Rights 7.2.3.5 Anonymity 7.3 Merits 7.4 Decisions by Human Rights Treaty Bodies 7.5 Implementation of Decisions and Judgments Case Study 7.2: Restoring Ancestral Lands to Indigenous Peoples – Mayagna (Sumo) Awas Tingni Community v. Nicaragua 7.6 Additional Procedural Options 7.6.1 Interim Measures 7.6.2 Friendly Settlements Interview 7.1: Nepal before the Human Rights Committee (Mandira Sharma) 7.7 The Hissène Habré Case: The Interplay between Domestic, Regional and International Proceedings Further Reading 8 Civil and Political Rights 8.1 Introduction 8.2 The Right to Life 8.2.1 Practice 8.2.2 Sources 8.2.3 The Prohibition of Arbitrary Deprivation of Life 8.2.4 McCann v. United Kingdom: Absolute Necessity in the European Court of Human Rights’s Jurisprudence Case Study 8.1: The Killing of Bin Laden and the Right to Life 8.2.5 The Death Penalty under International Law 8.2.6 Positive Obligations to Protect the Right to Life 8.2.6.1 Providing Protection against Threats to Life 8.2.6.2 Duty to Investigate, Prosecute and Punish and to Provide Redress 8.2.7 A Right to Survival? 8.3 The Right to be Free from Torture and Other Ill-treatment 8.3.1 Practice 8.3.2 Sources 8.3.3 The Absolute Prohibition of Torture 8.3.4 The Case of Gäfgen and the German Torture Debate 8.3.5 The Definition of Torture and Other Forms of Ill-treatment and Punishment 8.3.6 Obligations Interview 8.1: The Role of Medical Documentation in Combating Torture: Istanbul Protocol (Dr Önder Özkalipçi) 8.4 The Right to Liberty and Security of Person 8.4.1 Practice 8.4.2 Sources 8.4.3 Scope of the Right to Liberty and Security 8.4.4 Justification of Arrest and Detention 8.4.5 Administrative Detention: Law and Power in the Pursuit of Policy 8.5 The Right to a Fair Trial 8.5.1 Practice 8.5.2 Sources 8.5.3 Main Features of the Right to a Fair Trial 8.5.3.1 General Principles 8.5.3.2 Criminal Proceedings 8.6 Enforced Disappearance as Multiple Human Rights Violation Interview 8.2: Inquiries into Enforced Disappearances in Sri Lanka (M. C. M. Iqbal) 8.7 Qualified Rights, with a Particular Focus on Freedom of Expression 8.7.1 Practice 8.7.2 Sources 8.7.3 Freedom of Religion vs Freedom of Expression 8.7.4 To Wear or Not to Wear: Freedom of Conscience and Religion, the Rights of Women and the Veil Further Reading 9 Economic, Social and Cultural Rights 9.1 Introduction 9.2 Brief Historical Context of ESC Rights 9.3 Progressive Realisation and the Nature of State Obligations 9.4 Resource Implications: The Obligation to Utilise ‘Maximum Available Resources’ Case Study 9.1: United States Budget Allocated to Primary and Secondary Education 9.5 Minimum Core Obligations 9.6 Justiciability of ESC Rights 9.6.1 Individual Communications and the ICESCR Optional Protocol 9.6.2 The ECSR 9.7 Extraterritoriality of ESC Rights 9.8 Indicators and Benchmarks for Measuring Compliance Case Study 9.2: Indicators on the Right to Food 9.9 The Right to Health Interview 9.1: Greek NGO Implements the Right to Health for the Socially Excluded (Tzanetos Antypas) 9.10 The Right to Water Case Study 9.3: The Deprivation of Water Rights as Cruel and Inhuman Treatment 9.11 The Right to Education 9.12 The Right to Food 9.13 Cultural Rights Further Reading 10 Group Rights: Self-determination, Minorities and Indigenous Peoples 10.1 Introduction 10.2 The Nature of Collective Rights 10.2.1 External Self-determination 10.2.2 Exceptionalism in the External Dimension of Self-determination 10.2.3 A Test for Sovereignty in the Era of Fiscal ‘Occupation' Case Study 10.1: Participatory Budgeting in Porto Alegre, Brazil 10.3 Minorities as a Subject of Human Rights 10.3.1 The Historical and Political Context: Should Minorities be Treated Differently from Majorities? 10.3.2 Membership Rights Case Study 10.2: The Malay Bumiputra Policy 10.4 Indigenous Peoples: Is there a Need for Additional Protection? 10.4.1 Indigenous Rights over Traditional Lands 10.4.2 Indigenous Land Rights in Contemporary International Law 10.4.3 Indigenous Ownership as a Right to Property 10.4.4 Special Considerations in the Design of Indigenous Peoples’ Development Plans within the World Bank 10.4.5 The Chad–Cameroon Pipeline and the Baka/Bakola: What to Look for in Social Impact Assessments Further Reading 11 The Human Rights of Women 11.1 Introduction 11.2 Normative Framework 11.2.1 Key Violations of Women’s Human Rights: The Convention on the Elimination of All Forms of Discrimination against Women 11.2.2 Critiques of CEDAW 11.2.3 CEDAW, Violence against Women and Reproductive Rights 11.3 Conceptual Development 11.3.1 The Development of Feminist Legal Theory and Women’s Human Rights 11.3.2 Critiques of Liberal and Non-discrimination Approaches to Women’s Human Rights 11.3.3 Critiques of ‘Western’ Feminist Approaches to Women’s Human Rights 11.3.4 Sex, Gender and Sexuality 11.4 Women’s Human Rights and Domestic Contexts: ‘Honour Crimes’ in the English Legal System 11.4.1 Definitions and Concepts of ‘Honour’ 11.4.2 Practical Legal Approaches to ‘Honour Crimes’: Culture, Gender and Mainstreaming 11.4.3 Non-state Actors and Due Diligence: A Human Rights Response? Case Study 11.1: Banaz Mahmod Further Reading 12 Children’s Rights 12.1 Introduction 12.2 Childhood: A Non-static Concept 12.3 The Need for a Specialised Protection Regime 12.4 Fundamental Principles 12.4.1 The Child’s Best Interests 12.4.2 The Child’s Right to be Heard 12.4.3 Right to Life, Survival and Development 12.4.3.1 Child Soldiers 12.4.4 Non-discrimination Case Study 12.1: Discrimination against Fathers in Custody Proceedings: The Critical Role of Neuroscience Interview 12.1: The State of Children’s Rights (Benyam Dawit Mezmur) 12.5 Children’s Right to be Free from Poverty Case Study 12.2: Anti-child Poverty Legislation in the United Kingdom and Austerity Measures Further Reading 13 The Recognition and Protection of the Human Rights of Vulnerable Groups and Persons 13.1 Introduction 13.2 Vulnerability and International Human Rights Law 13.3 Vulnerable Groups and Persons 13.3.1 Race 13.3.2 Gender, Gender Identity and Sexual Orientation Case Study 13.1: A Family Life before National and Regional Courts 13.3.3 Persons with Disabilities 13.3.4 Persons Living in Extreme Poverty Interview 13.1: Into the Heart of Everyday Violence and Human Rights Violations: Conducting Research on, and with, Marginalised and Vulnerable Persons (Morten Koch Andersen) 13.3.5 Old Age 13.3.6 Refugees and Migrants 13.3.6.1 The Protection of Persons in Flight or Movement 13.3.6.2 The Protection of Refugees in International Law 13.3.6.3 The Protection of Migrants Further Reading 14 The Right to Development and Sustainable Development 14.1 Introduction 14.2 From Human Development to Sustainable Development 14.3 The Right to Development 14.3.1 Making the RTD Justiciable 14.3.2 Justiciability of Sustainable Development Case Study 14.1: Justiciability of Sustainable Development Claims 14.4 Global Partnerships for the Financing of Development 14.5 From the MDGs to the SDGs Interview 14.1: Microfinance Non-governmental Organisation (NGO) (Ramanou Nassirou) 14.6 Sovereign Debt and the Enjoyment of Fundamental Rights 14.6.1 Accumulation of Sovereign Debt and its Human Rights Dimension 14.6.2 Odious, Illegal and Illegitimate Debt 14.6.3 Unsustainable Debt Case Study 14.2: The Parliamentary Committee on the Truth about the Greek Debt: The Artificiality of Greek Debt and its Odious Nature Further Reading 15 Victims’ Rights and Reparation 15.1 Introduction 15.2 The Development of the Right to Reparation 15.3 The Right to Reparation in International Human Rights Law 15.3.1 Treaties and UN Declarations 15.3.2 Practice at the Inter-state Level 15.3.3 State Practice at the National and Transnational Level 15.4 The Right to Reparation in International Humanitarian Law 15.5 The Right to Reparation in International Criminal Law 15.6 The Right to Reparation and Violations by Non-state Actors 15.7 The Right to Reparation for Historical Injustices and Violations 15.8 The Notion and Legal Significance of the Term ‘Victim’ 15.9 The Procedural Right to an Effective Remedy 15.9.1 Overview 15.9.2 The Nexus between Civil and Criminal Proceedings: Rajapakse v. Sri Lanka 15.9.3 The Right to Property, and the Choice between Investment Arbitration and Human Rights Avenues 15.10 The Substantive Right to Reparation 15.10.1 State Responsibility 15.10.2 Liability 15.10.3 Standard of Reparation 15.10.4 Forms of Reparation 15.10.5 Restitution 15.10.6 Compensation 15.10.7 Types of Damages 15.10.8 Proyecto de Vida: Loayza Tamayo v. Peru 15.10.9 Should Previous Conduct be Taken into Consideration when Awarding Compensation? 15.10.10 Rehabilitation 15.10.11 Satisfaction 15.10.12 Guarantees of Non-repetition 15.10.13 Reparation for the Violation of Collective Rights: Saramaka People v. Suriname 15.10.14 A Brief Assessment and Outlook 15.11 The Double-edged Sword of Victims’ Politics 15.12 Negotiating, Litigating and Administering Reparations: Experiences from the Holocaust and World War II Reparations 15.13 Reparation in Action: Litigating Human Rights Cases 15.13.1 Litigation Strategies 15.13.2 Pursuing Reparation Claims, with Particular Reference to Litigating Torture Cases Interview 15.1: Litigation, Advocacy and Social Change (Basil Fernando) Further Reading 16 The Application of Human Rights in Armed Conflict 16.1 Introduction 16.2 The Fundamental Premises of IHL 16.2.1 Distinction between Combatants and Non-combatants 16.2.2 Restricted Targeting of Military Objects 16.2.3 Means and Methods of Warfare are Not Unlimited 16.3 Rights and Obligations in Humanitarian Law 16.4 Humanitarian Law as Lex Specialis to Human Rights Law 16.5 Why Human Rights Bodies Find the Application of Humanitarian Law Problematic 16.6 Human Rights in Situations of Military Occupation 16.6.1 The Extraterritorial Application of Human Rights in Occupied Territories 16.6.2 The Effective Control Test 16.6.3 The Decisive Influence Test 16.7 The Relevance of the Law to Battlefield Conditions 16.7.1 Human Physiology in Combat Situations Interview 16.1: Battlefield Compliance (Charles Garraway and Anon.) 16.7.2 The Dilution of Humanitarian Law and Problems in Ensuring Compliance Further Reading 17 Human Rights and International Criminal Justice 17.1 Introduction 17.2 Relationship between International Criminal Law and Human Rights 17.3 Individual Criminal Liability under International Law Case Study 17.1: International Criminal Liability at the Nuremberg Trial 17.4 The Enforcement of International Criminal Law 17.5 Universal Jurisdiction 17.6 Peace vs International Criminal Justice Interview 17.1: Former Chief Public Prosecutor and Director of the Norwegian National Authority for Prosecution of Organised and Other Serious Crime (Siri Frigaard) 17.7 Core International Crimes 17.7.1 Genocide 17.7.2 Crimes against Humanity 17.8 The Place of Immunities in Human Rights and International Criminal Justice Further Reading 18 Human Rights and Counter-terrorism 18.1 Introduction 18.2 The Legal Nature of Terrorism 18.3 The Discussion on Underlying or Root Causes 18.4 The Obligation of States to Protect their Populations from Terrorism Case Study 18.1: Finogenov and Chernetsova v. Russia: European Court of Human Rights Admissibility Decision of 18 March 2010 18.5 Human Rights in Counter-terrorism Operations 18.5.1 Anti-terrorist Legislation and the Principle of Legality 18.5.2 Permissible Restrictions and Derogations Arising from Terrorist Threats 18.6 The Right to Life in Counter-terrorism Operations 18.6.1 Situations when Lethal Force is Permissible 18.6.2 Targeted Killings and ‘Shoot-to-kill’ Strategies 18.7 Attempts to Justify Arbitrary Detention 18.8 Unlawful Extraditions and Illegal Renditions of Suspected Terrorists 18.8.1 Washing One’s Hands and Hiding Every Trace 18.8.2 From Arbitrary Detention and Unlawful Extradition the Road to Torture is Open … Case Study 18.2: Al-Rabiah v. USA 18.9 Legal and Other Strategies Regarding Disappeared Terrorist Suspects 18.9.1 The Potency of Advocacy and Outreach 18.9.2 Tracing Strategies and Release Arguments 18.9.3 Advocacy Strategies 18.9.4 Counter-terrorism: The Real Testing Ground for Erga Omnes Interview 18.1: Legal Defender of Guantánamo Detainees (Clive Stafford Smith) Further Reading 19 Human Rights Obligations of Non-state Actors 19.1 Introduction 19.2 The Status of NSAs in Human Rights Law 19.3 Multinational Corporations in the Human Rights Architecture 19.3.1 MNCs as Foreign Investors 19.3.2 Human Rights and Foreign Direct Investment 19.3.3 Emerging Human Rights Obligations of MNCs in Multilateral Treaties and Soft Law 19.3.4 MNC Liability under Tort Law 19.3.5 MNCs as Influencers and their Due Diligence Obligations Case Study 19.1: Unilateral Repudiation of Arbitral Awards Violating Constitutional Guarantees 19.4 Human Rights Obligations of International Organisations 19.4.1 General Obligations Case Study 19.2: Non-consideration of Economic and Social Rights by the IMF in Tanzania 19.4.2 International Organisations as Violators of Human Rights: The Need for Dual Attribution Case Study 19.3: Complicity of States through/with IGOs 19.5 National Liberation Movements and Armed Rebel Groups 19.5.1 ‘To Suffer thy Comrades’: Responding to Human Rights Abuses by NSAs in the Philippines Interview 19.1: Judge and Activist on Philippines’ Armed Groups (Soliman M. Santos) Further Reading 20 Globalisation and its Impact on Human Rights 20.1 Introduction 20.2 The Origins and Nature of Globalisation 20.3 Does the Existing Model of Trade Liberalisation Promote Development and Alleviate Poverty? 20.3.1 Liberalisation of Agriculture and its Impact on Food Security Case Study 20.1: Liberalisation of Zambia’s Maize Production Interview 20.1: The Director of Food First (Eric Holt-Giménez) 20.4 How Intellectual Property Rights Hinder Access to Essential Medicines for the Poorest Case Study 20.2: Biopiracy and the Mayocoba Bean 20.5 The McLibel Case: Sales Globalisation and its Impact on Rights Further Reading Index