INTERNATIONAL HUMAN RIGHTS LAW

Transcription

1 INTERNATIONAL HUMAN RIGHTS LAW EDITED BY DANIEL MOECKLI University of Zurich SANGEETA SHAH University of Nottingham SANDESH SIVAKUMARAN University ofnottingham CONSULTANT EDITOR: DAVID HARRIS Professor Emeritus and Co-Director, Human Rights Law Centre, University ofnottingham OXJFORD UNIVERSITY PRESS

2 DETAILED CONTENTS Preface Notes on Contributors Abbreviations Table of International Instruments Table of Cases xxvii xxix xxxiii xxxix li WHAT ARE HUMAN RIGHTS FOR? 1 PARTI FOUNDATIONS 1 HISTORY 17 Summary 17 1 Introduction 17 2 Human Rights on the Domestic Plane The Enlightenment Thinkers Human Rights Transformed into Positive Law Nineteenth-century Challenges to Natural Rights Domestic Protection of Human Rights Today 24 3 Human Rights on the International Plane Before the Second World War International Humanitarian Law and the Abolition of the Slave Trade The Protection of Minorities and the League of Nations 29 4 Human Rights on the International Plane After the Second World War Crimes Against Humanity The UN Charter The Universal Declaration of Human Rights 35 5 Conclusion 36 Further Reading 37 Useful Websites 38 2 PHILOSOPHY 39 Summary 39 1 Introduction 39

3 X DETAILED CONTENTS 2 The Nature and Foundations of Human Rights What are Human Rights? Do Human Rights Need Some Special Sort of Justification? What Are the Foundations of Human Rights? 43 3 Gewirth's Argument for Human Rights to Freedom and Welfare 48 4 Griffin on Autonomy and Human Rights 53 5 John Rawls and the Law of Peoples 57 6 Conclusion 61 Further Reading 62 Useful Websites 63 3 CRITIQUES 64 Summary 64 1 Introduction 64 2 Early Critiques The Realist Critique The Utilitarian Critique The Marxist Critique 72 3 More Recent Critiques The Cultural Relativist or Particularist Critique The Feminist Critique The Postcolonial Critique 81 4 Conclusion 84 Further Reading 85 4 POLITICS 87 Summary 87 1 Introduction 87 2 The Interrelationship Between Human Rights and Politics Changes in Thinking About the Ruler/Ruled Relationship Demands for Inclusion: The Anti-racism Movement 89 3 Power and the Political Terrain for Human Rights 'Power Over' 'Power With' 93

4 DETAILED CONTENTS xi 3.3 The Politics of Disability Rights 94 4 Armed Conflict and Human Rights Politics Peace Agreements Humanitarian Intervention 98 5 Conclusion 99 Further Reading 100 Useful Websites 100 PART II INTERNATIONAL LAW 5 SOURCES Summary Introduction Formal Sources Treaties 3.1 The Principal Treaties 3.2 The Importance of Treaties 3.3 Revitalizing the Treaty System Customary International Law Jus Cogens 6 General Principles of Law Judicial Decisions ^5 7.1 Interaction at the International and Regional Levels Interaction between National Courts Human Rights Litigation Writings of Jurists Other Sources 9.1 Work of Treaty Bodies 9.2 Resolutions of International Institutions Other Forms of Soft Law 10 Conclusion Further Reading Useful Websites

5 Xii DETAILED CONTENTS 6 NATURE OF OBLIGATIONS Summary 1 Introduction 2 The 'Special Character' of Human Rights Obligations 3 Implementation of Human Rights Obligations 3.1 Respect 3.2 Protect 3.3 Fulfil 3.4 Margin of Appreciation 4 Reservations 4.1 Permissibility 4.2 Responsibility for Assessment 4.3 Consequences 5 Limitations and Derogations 5.1 Limitations 5.2 Derogations 6 Withdrawal 7 Remedies for Violations of Human Rights Obligations 8 Conclusion Further Reading 7 SCOPE OF APPLICATION Summary 1 Introduction 2 Who has Human Rights Obligations? 3 Who has Human Rights? 3.1 Non-nationals 3.2 The Unborn 3.3 Artificial Entities 4 For Which Entities is a State Responsible? 4.1 Private Actors 4.2 International Organizations 4.3 Other States 5 Where Do Human Rights ADDIV?

6 DETAILED CONTENTS Xlii 5.1 ECHR ACHR African Convention on Human and Peoples' Rights ICCPR ICESCR Overall Assessment Conclusion 169 Further Reading 169 PART III SUBSTANTIVE RIGHTS 8 CATEGORIES OF RIGHTS 173 Summary Introduction Categories of Human Rights Economic, Social, Cultural Rights/Civil, Political Rights Rights of Individuals/Rights of Collectivities One-dimensional/Compos/te.R»gfe Interdependence and Indivisibility of all Human Rights Core Rights New Human Rights? Conclusion 187 Further Reading EQUALITY AND NON-DISCRIMINATION 189 Summary Introduction The Meaning of Equality and Non-discrimination Formal Equality Substantive Equality Equality and Non-discrimination in International Law Sources Scope: Subordinate and Autonomous Norms Prohibited Grounds of Distinction 196

7 Xiv DETAILED CONTENTS 4 Direct and Indirect Discrimination Direct Discrimination Indirect Discrimination Discriminatory Intention Justified and Unjustified Distinctions The Justification Test Standard of Review Evidence and Proof Positive Action Conclusion 207 Further Reading 207 Useful Websites INTEGRITY OP THE PERSON 209 Summary Introduction Respect for Human Dignity The Right to Integrity of the Person The Right to be Free from Torture and Ill-treatment Sources Legal Status Components Types of Obligation Relationship with Other Human Rights The Right to Life Sources Legal Status Scope: Beginning and End of Life Components Types of Obligation Relationship with Other Human Rights Conclusion 230 Further Reading 231 Useful Websites 231

8 DETAILED CONTENTS XV 11 ADEQUATE STANDARD OF LIVING 233 Summary Introduction Meaning and Features The Subsidiarity Principle State Obligations Equality and Non-discrimination as an Overarching Principle Normative Content The Right to Food The Right to Housing The Right to Health Groups of People Women Children Indigenous Peoples Dalits in South Asia and Roma in Europe Relationship with Other Human Rights The Right to Social Security and Social Assistance Civil and Political Rights Progressive Implementation The Importance of International Action Conclusion 255 Further Reading 256 Useful Websites THOUGHT, EXPRESSION, ASSOCIATION, AND ASSEMBLY 257 Summary Introduction Four Freedoms and Their Relationships Limitations Freedom of Thought, Conscience, and Religion Sources Scope Freedom of Religion or Belief 261

9 XVi DETAILED CONTENTS 2.4 Limitations Freedom of Opinion and Expression Sources Scope Limitations Freedom of Association Sources Scope Limitations Freedom of Assembly Sources Scope Limitations Conclusion 277 Further Reading 278 Useful Websites EDUCATION AND WORK 280 Summary Introduction The Right to Education Sources Features The Aims of Education Components Types of Obligations Relationship with Other Human Rights The Right to Work and Work-related Rights Sources Features Components Obligations Relationship with Other Human Rights Conclusion 302

10 DETAILED CONTENTS XVii Further Reading 302 Useful Websites ADMINISTRATION OF JUSTICE 304 Summary Introduction Freedom from Arbitrary Detention Sources Scope Guarantees to those Deprived of their Liberty Emergency Detention Powers Enforced Disappearance Security of the Person The Right to a Fair Trial Sources Scope Generally Applicable Fair Trial Guarantees Fair Trial Guarantees in Criminal Proceedings Protection of Juveniles No Punishment Without Law Conclusion 329 Further Reading 329 Useful Websites SEXUAL ORIENTATION AND GENDER IDENTITY 331 Summary Introduction Forms of Vulnerability to Human Rights Attack Review of Law and Jurisprudence Protection of Privacy Rights Discrimination General Human Rights Protection Legal Initiatives to Bridge the Gap Between Law and Practice Conclusion 343

11 XViii DETAILED CONTENTS Further Reading 344 Useful Websites WOMEN'S RIGHTS 345 Summary Introduction A New Era of Non-discrimination on the Ground of Sex and Equality with Men The Position Prior to The UDHR and the International Covenants The Substantive Equality Approach of CEDAW Towards a Robust Understanding of Equality Limitations of the CEDAW Approach Mainstreaming Women's Human Rights Re-imagining the Universal Subject: The Approach of the Human Rights Committee Analysing the Relationship between Gender and Racial Discrimination: The Approach of the Committee on the Elimination of Racial Discrimination Addressing the Inequality of Both Women and Men: The Approach of the Committee on Economic, Social and Cultural Rights Recognizing Gender as a Key Factor: The Approach of the Committee against Torture Conclusion 362 Further Reading 363 Useful Websites RIGHTS OF PEOPLES AND MINORITIES 365 Summary Introduction Group Rights Group Rights v Rights of Individuals Relevance of the Right of Self-determination and the Rights of Minorities The Right of Self-determination Concept 368

12 DETAILED CONTENTS Xix 2.2 Definitions The Application of the Right of Self-determination Colonial Context Outside the Colonial Context Indigenous Peoples The Exercise of the Right of Self-determination External and Internal Self-determination Procedures for Exercising the Right of Self-determination Limitations on the Exercise of the Right of Self-determination Rights of Others Territorial Integrity Other Limitations Minorities Rights of Minorities Defining 'Minorities' Exercise of Minority Rights Individual v Group Rights Conclusion 386 Further Reading 387 PART IV PROTECTION 18 UNITED NATIONS 391 Summary Introduction The Human Rights Council : From the Commission on Human Rights to the Human Rights Council Composition, Working Methods, and Mandate Universal Periodic Review Responses to Country Situations Special Procedures Complaint Procedure Human Rights Council Advisory Committee 402

13 XX DETAILED CONTENTS 2.8 Conclusion The Treaty-based Bodies State Reporting General Comments Inquiries Complaints Procedures Treaty Body Coordination, Harmonization, and Reform Conclusion The Office of the UN High Commissioner for Human Rights Technical Cooperation Activities Human Rights Education and Information Human Rights Components of Peacekeeping Operations Human Rights Field Presences Relationship with National Human Rights Institutions Voluntary Funds Right to Development and the Millennium Development Goals Conclusion Human Rights Activities in Other Parts of the UN General Assembly Security Council Secretary-General International Court of Justice Conclusion 430 Further Reading 431 Useful Websites THE AMERICAS 433 Summary Introduction Historical Overview American Convention on Human Rights Inter-American Commission on Human Rights Structure and Composition Individual Complaint Procedures 438

14 DETAILED CONTENTS XXJ 4.3 Utner Roles ot me Commission 5 Inter-American Court of Human Rights 5.1 Structure and Composition 5.2 Contentious Cases 5.3 Court-ordered Reparations and State Compliance 5.4 Interim Measures 5.5 Advisory Jurisdiction 6 Challenges to the Inter-American System 7 Conclusion Further Reading Useful Websites EUROPE Summary 1 Introduction 2 The Organization for Security and Cooperation in Europe 3 The Council of Europe 3.1 Origins 3.2 Key Institutions 3.3 Key Instruments 4 The European Convention on Human Rights 4.1 Substantive Rights 4.2 Institutional and Procedural Background 4.3 Complaints Procedures 4.4 Resolution of Complaints 4.5 Supervision of the Execution of Judgments 5 The European Union 5.1 The European Court of Justice and Human Rights 5.2 The Charter of Fundamental Rights 5.3 The Fundamental Rights Agency 6 Conclusion Further Reading Useful Websites

15 XXU DETAILED CONTENTS 21 AFRICA 479 Summary Introduction Historical Overview The African Charter and Other Relevant Treaties Norms Recognized in the African Charter Duties and Limitations Protection of Women, Children, and Vulnerable Groups The Protective Mechanisms The African Commission The African Court on Human and Peoples' Rights The AU Main Organs and Human Rights The African Peer Review Mechanism Conclusion 496 Further Reading 496 Useful Websites WITHIN THE STATE 498 Summary Introduction Substantive Protections Incorporation of International Human Rights Norms into Domestic Law Constitutional Guarantees of Human Rights Legislative Protection of Human Rights Common Law Protection of Human Rights Institutional Protections The Courts The Executive The Legislature Other Bodies Conclusion 516 Further Reading 517 Useful Websites 517

16 DETAILED CONTENTS XXiii PARTV LINKAGES 23 INTERNATIONAL HUMANITARIAN LAW 521 Summary Introduction What is International Humanitarian Law? Different Histories; Shared Values Reasons for the Application of Human Rights Law in Armed Conflict Non-applicability of International Humanitarian Law Duty to Investigate Enforcement The Relationship Between the Two Bodies of Law Rights Exclusively Matters of International Humanitarian Law Rights Exclusively Matters of International Human Rights Law Rights Matters of Both International Human Rights Law and International Humanitarian Law An Alternative Approach: Regulation through Application of International Human Rights Law Difficulties with the Application of International Human Rights Law to Armed Conflict Asymmetrical Obligations Between the Parties Differential Obligations within a Coalition Sphere of Applicability: The Extraterritorial Application of Human Rights Treaties Conclusion 538 Further Reading 539 Useful Websites INTERNATIONAL CRIMINAL LAW 540 Summary Introduction Human Rights Law and International Crimes Genocide Crimes against Humanity War Crimes 550

17 XXIV DETAILED CONTENTS 3 Prosecutions: International and National Non-prosecutorial Options Amnesties Truth and Reconciliation Commissions Conclusion 556 Further Reading 558 Useful Websites 558 PART VI CHALLENGES 25 NON-STATE ACTORS 561 Summary Introduction The Challenge of Non-state Actors Globalization Privatization Fragmentation of States Feminization The Legal Framework The Obligations of International Organizations International Criminal Responsibility of Non-state Actors Corporate Social Responsibility and the Move towards Accountability Armed Opposition Groups The UN Security Council on Children and Armed Conflict UN Special Procedures NGOs and the Example of Geneva Call Conclusion 581 Further Reading 581 Useful Websites TERRORISM 583 Summary Introduction Is Terrorism a Violation of Human Rights? Applicability of Human Rights Law in the Fight against Terrorism 586

18 DETAILED CONTENTS XXV 3.1 Times of Armed Conflict or Emergency Extraterritorial Applicability of Human Rights Law The Notion of Terrorism and its Misuse Substantive Challenges to Human Rights Law in the Fight against Terrorism Freedom from Torture and Cruel, Inhuman, or Degrading Treatment Right to Liberty and Right to a Fair Trial Right to Non-discrimination Other Human Rights An Institutional Challenge: Terrorist Listing by the Security Council Conclusion: Is the Pendulum already Swinging Back? 599 Further Reading 600 Useful Websites POVERTY 602 Summary Introduction Human Rights and Poverty in the Global Economy Poverty and its Significance for Human Rights Development, Social Justice, and Human Rights The Context of Poverty and Human Rights: Globalization Divergence of Poverty Reduction and Human Rights Agendas Resistance to Human Rights Discourse in Economic Thinking The Perspective of Central Banks and Ministries of Finance Convergence of Poverty Reduction and Human Rights Agendas Trends in Economic Thinking Congruent with Human Rights Human Rights Approaches in Poverty Reduction Policies Conclusion 619 Further Reading 621 Useful Websites ENVIRONMENTAL DEGRADATION 622 Summary Introduction Substantive Environmental Rights 624

19 XXVI DETAILED CONTENTS 2.1 African Charter San Salvador Protocol to the American Convention on Human Rights Progress at the UN Indirect substantive environmental rights Substantive Environmental Rights at the National Level Is There a Need for a Substantive Environmental Right? Procedural Environmental Rights The Aarhus Convention Indirect Procedural Environmental Rights Conclusion 641 Further Reading 642 Useful Websites 642 Index 643