Handbook of international human rights law routledge

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Routledge Handbook of International Human Rights Law The Routledge Handbook of International Human Rights Law provides a defi nitive global survey of the discipline of international human rights law Each chapter is written by a leading expert and provides a contemporary overview of a significant area within the field As well as covering topics integral to the theory and practice of international human rights law, the volume offers a broader perspective through examinations of the ways human rights law interacts with other legal regimes and international institutions, and by addressing the current and future challenges facing human rights This highly topical collection of specially commissioned papers is split into five parts: • • • • • Part I: Introduction and overview Part II: The nature and evolution of international human rights law, discussing the origins, theory and practice of the discipline Part III: Interaction of human rights with other key regimes and bodies, including the interaction of the discipline with international economic law, international humanitarian law and development, as well as other legal regimes Part IV: Evolution and prospects of regional approaches to human rights, discussing the systems of Europe, the Americas, Africa and South East Asia, and their relationship to the United Nations treaty bodies Part V: Key contemporary issues and the challenges for the future, including non-state actors, religion and human rights, counter-terrorism, and enforcement and remedies Providing up-to-date and authoritative articles covering key aspects of international human rights law, this book is an essential work of reference for scholars, practitioners and students alike Scott Sheeran is a Senior Lecturer, School of Law and Human Rights Centre, at the University of Essex, and Director of the LLM in International Human Rights Law Sir Nigel Rodley is Professor of Law and Chair of the Human Rights Centre at the University of Essex He is currently the chair of the UN Human Rights Committee, established under the International Covenant on Civil and Political Rights This page intentionally left blank Routledge Handbook of International Human Rights Law Edited by Scott Sheeran and Sir Nigel Rodley First published 2013 by Routledge Park Square, Milton Park, Abingdon, Oxon, OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2013 Scott Sheeran and Sir Nigel Rodley The right of Scott Sheeran and Sir Nigel Rodley to be identified as editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 All rights reserved No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Routledge handbook of international human rights law / [edited by] Scott Sheeran, Nigel Rodley p cm Includes bibliographical references and index ISBN 978–0–415–62073–4 (hardback) — ISBN 978–0–203–48141–7 (ebk) Human rights I Sheeran, Scott (Law teacher), editor of compilation II Rodley, Nigel S., editor of compilation III Title: Handbook of international human rights law K3240.R699 2014 341.4’8—dc23 2013026256 ISBN: 978–0–415–62073–4 (hbk) ISBN: 978–0–203–48141–7 (ebk) Typeset in Bembo by RefineCatch Limited, Bungay, Suffolk Contents Contributors Acknowledgements ix xvi PART I Introduction and overview The broad review of international human rights law Scott Sheeran and Sir Nigel Rodley PART II Nature and evolution of international human rights law The historical development of human rights Wiktor Osiatyn´ ski Human rights in political and legal theory Guglielmo Verdirame 25 Universalism of human rights and cultural relativism Michael Freeman 49 The evolving study of human rights: interdisciplinarity and new directions Micheline Ishay 63 The relationship of international human rights law and general international law: hermeneutic constraint, or pushing the boundaries? Scott Sheeran 79 International human rights law and a developing world perspective Antony Anghie 109 The contemporary challenges to international human rights Radhika Coomaraswamy 127 v Contents Human rights and foreign policy: syntheses of moralism and realism Bruno Stagno Ugarte 10 The use of international human rights law by civil society organisations Andrew Clapham 11 International human rights in field operations: a fast developing human rights tool Michael O’Flaherty and Daria Davitti 141 153 169 PART III Interaction of human rights with other key regimes and bodies 12 The relationship between international humanitarian law and international human rights law Franỗoise J Hampson 13 International criminal law and tribunals and human rights William Schabas 14 International refugee and human rights law: partners in ensuring international protection and asylum Cornelis (Kees) Wouters 183 185 215 231 15 Human rights and international trade Sheldon Leader 245 16 International finance and investment and human rights Peter T Muchlinski 263 17 International environmental law and human rights Karen Hulme 285 18 Customary law and human rights Evadné Grant 303 19 Reservations to treaties and the integrity of human rights Alain Pellet 323 20 The International Labour Organization and international human rights system Lee Swepston vi 339 Contents 21 The International Court of Justice and human rights Awn Shawkat Al-Khasawneh 22 The UN Security Council and international human rights obligations: towards a theory of constraints and derogation Scott Sheeran and Catherine Bevilacqua 353 371 PART IV Evolution and prospects of regional approaches to human rights 405 23 The European system and approach Philip Leach 407 24 The Inter-American System of Human Rights and approach Clara Sandoval 427 25 The impact and influence of the African regional human rights system on domestic law Frans Viljoen 445 26 The South East Asian system for human rights protection Vitit Muntarbhorn 467 27 The League of Arab States and human rights Mervat Rishmawi 483 28 The relationship of the UN treaty bodies and regional systems Lorna McGregor 505 PART V Key contemporary issues and challenges for the future 521 29 Non-state actors and human rights Sir Nigel Rodley 523 30 Implementation of economic, social and cultural rights Paul Hunt, Judith Bueno de Mesquita, Joo-Young Lee and Sally-Anne Way 545 31 The relationship of religion and human rights Malcolm Evans 563 32 Counter-terrorism and human rights Martin Scheinin 581 vii Contents 33 International development, global impoverishment and human rights Upendra Baxi 597 34 Gender challenges for international human rights Andrew Byrnes 615 35 The extraterritorial application of international human rights law on civil and political rights Ralph Wilde 36 Enforcement and remedies Dinah Shelton 37 Victims’ participation and reparations in international criminal proceedings Megan Hirst 635 663 683 38 Continuing evolution of the United Nations treaty bodies system Nadia Bernaz 707 39 The future of the United Nations Special Procedures Ted Piccone 725 40 The role and future of the Human Rights Council Allehone M Abebe 743 41 Transitional justice Juan E Méndez and Catherine Cone 761 Index 781 viii Contributors Sir Nigel Rodley KBE is a Professor of Law and Chair of the Human Rights Centre at the University of Essex From 1993–2001 he served as Special Rapporteur on Torture Since 2001 he has been a Member of the UN Human Rights Committee, and since 2013 the Chair of that Committee He has published extensively on international human rights law and public international law, and is author with Matt Pollard of The Treatment of Prisoners under International Law (Oxford University Press, 2009) Scott Sheeran is Senior Lecturer in the School of Law and Human Rights Centre at the University of Essex, and Director of the LLM in International Human Rights Law and provides legal support to the mandate of the UN Special Rapporteur for Iran He worked previously as a New Zealand diplomat and legal adviser, including in New York and Geneva, and is on the advisory council of several human rights NGOs He has published on international human rights law, public international law and law of the United Nations Wiktor Osiaty n´ ski is Professor of Law at the Central European University in Budapest He also teaches human rights to the postgraduate students at the University of Siena, Italy Since 1989, Osiatynski has been an advisor to constitutional committees in Poland and other countries, and is associated with the Open Society Institute He is the author of the comparative study of individual rights and constitutionalism Human Rights and Their Limits (Cambridge University Press, 2009) Guglielmo Verdirame is Professor of International Law at the Department of War Studies and School of Law at King’s College London Before taking on this position, he was a Lecturer at the University of Cambridge and Fellow of the Lauterpacht Centre for International Law His main areas of research and teaching are public international law, and legal and political philosophy He is a barrister at 20 Essex Street Chambers, London Michael Freeman is a Research Professor in the Department of Government, University of Essex, where he teaches political theory and human rights He is the author of Human Rights: an Interdisciplinary Approach (Polity Press, 2011) and many other works on the theory and practice of human rights He is a former Chairperson of the British Section of Amnesty International He is currently working on world poverty as a human rights issue Micheline Ishay is Professor and Director of the Human Rights Program at the Josef Korbel School of International Studies at the University of Denver, the largest interdisciplinary human rights programme in the USA She is the author or editor of numerous books and articles Her History of Human Rights: from Ancient Times to the Era of Globalization (University of California Press, 2004) has been translated into several languages ix Juan E Méndez and Catherine Cone fighting is more conducive to dealing with that past than the context of raging armed confl ict The opportunity to object to blanket amnesties and to insist on accountability will come during the peace talks or even later: trials in the Southern Cone of Latin America prove that the legitimate demands for justice never go away and will eventually overcome unlawful amnesties and other obstacles.79 In addressing the often painful debate of how best to pursue justice and peace, the key lies in acknowledging that no lasting peace can be secured where justice is sacrificed and that justice, though inviolable, must be pursued in a manner that minimises further harm to the society in confl ict Conclusion: the future of transitional justice Justice is a human value that justifies itself Societies ought to pursue justice for victims of abuse, fi rst and foremost out of a sense of fairness and respect for human dignity In other words, we not need additional reasons to support the idea that societies have an obligation to offer just satisfaction to those who have been wronged We hope that justice contributes to peace, to the building of more decent societies, to the citizens’ trust in institutions and to prevention of future crimes But even if those lofty goals were not immediately realised, an effort to give victims their due would be amply justified Justice should not be pursued only for its utilitarian value but also for the achievement of other, equally worthy objectives If justice were only a means to obtain a lasting peace, in some instances strong arguments could be made to subordinate the rights and aspirations of innocent victims to the need to silence the guns We must recognise that at times justice and peace collide with each other But we have also demonstrated that it is possible – indeed, necessary – to fi nd ways in which peace and justice can support and nurture each other and that the end result is likely to be more conducive to lasting peace There are many ways (and many historic examples) in which justice can be made to foster peace Similarly, justice contributes to crime prevention even if the empirical evidence of the relationship is not always available When it comes to mass atrocities, the empirical link is even harder to prove, but it is nevertheless clear that the international community has repeatedly decided that war crimes and crimes against humanity must be punished as a way to deter similar events in the future Elsewhere we have explored the conditions under which justice contributes to prevention.80 Among other requirements, it is clear that justice helps prevent mass atrocities only if it accompanies other initiatives of a political, diplomatic, military and humanitarian nature Moreover, justice – and more specifically, employing the collective 79 Prosecutor v Furundzija ( Judgment) ICTY-IT-95–17/1-T (10 December 1998) para 155; Barrios Altos (n 23) paras 39–41; Kallon and Kamara, Special Court for Sierra Leone Decision on Challenge to Jurisdiction: Lomé Accord Amnesty (13 March 2004) See also, OHCHR, ‘Rule of Law and Amnesties’ (2009) UN Doc HR/PUB/09/1, available at: http://www.ohchr.org/Documents/ Publications/Amnesties_en.pdf , accessed on 26 February 2012 80 J.E Mendez, Justice and Prevention (August 2010) (presented to the Kampala Review Conference of the Assembly of State Parties of the ICC, June 2010) (on fi le with author) 778 Transitional justice cadre of transitional justice mechanisms – serves as a powerful preventative shield from impunity by making resumption of violations less likely.81 Justice helps build more decent societies because it upholds the rule of law and because it establishes that no victim is too powerless or vulnerable to be denied the benefits of full citizenship Also, justice is essential because it signifies that a decent society does not countenance unfair privileges for the powerful In the process, it builds the citizens’ trust in institutions that in the long run will be the only guarantee of fairness to all A body of evidence already exists that societies that confront the legacies of an authoritarian past perform better in terms of human rights than those that try to bury the past on account of a false ‘reconciliation’.82 Perhaps the best way to argue in favour of justice for mass atrocities is that its opposite, impunity, can certainly – and self-evidently – conspire against peace, against prevention, against the rule of law and against the credibility of democratic institutions Impunity invites violent retribution and it invites repetition by the same or other perpetrators The spectacle of impunity for major crimes undermines the citizens’ trust in institutions, especially the judiciary It also generates distrust and distance between society and law enforcement, national security and defence agencies of the state In contrast, prosecution of perpetrators confers legitimacy on the judiciary and allows the citizenry to distinguish between the permanent institutions of the state (like security and law enforcement sectors) and those who have abused their power through them In cases where the violations have had a distinct ethnic, racial or religious dimension, restoring justice serves to eliminate long-term animosities between communities, so that the injustices of the present are not blamed on descendants of the criminals in generations to come In mass atrocities, a major problem remains in that the sheer number of episodes, of victims and of perpetrators will make it impossible to provide justice to every victim International criminal justice is premised on the need to prosecute only those ‘bearing the highest responsibility’ for the atrocities.83 Even in the best of circumstances – where domestic courts take on their own responsibility to investigate, prosecute and punish – there will always be a number of crimes that go unpunished for a variety of reasons: loss of evidence over time, limited judicial and prosecutorial infrastructure, manipulation of procedures by defendants, and ever-present political pressures over all actors and stakeholders In that regard, transitional justice mechanisms offer a better way to ensure accountability and to expand the reach of justice to most, if not all, victims 81 Ibid In the Balkans, refusing to lift ICTY arrest warrants against Karadzic and Mladic ‘not only did not impede the Dayton talks: it actually made it possible to reach an agreement to end the wars in the Former Yugoslavia’ When justice is sacrificed, it is often to disastrous effect, leading to a recurrence of violence – ironically the very thing perpetrators claim will not happen if they are assured that justice is bypassed to their benefit For example, the 1999 Lomé Peace Agreement on the confl ict in Sierra Leone included a blanket amnesty to appease the perpetrators of atrocious crimes, yet within months of signing the peace accord fighting resumed in a more extreme and violent fashion Conversely, in Côte d’Ivoire, evidence shows that legal advisors to the government heeded warnings by then Special Advisor on the Prevention of Genocide, Juan Méndez, to refrain from further hate speech rather than subject Côte d’Ivoire to the ICC’s jurisdiction Hate speech initiated by armed militias subsided shortly thereafter, thus confi rming the value in using justice – or the spectre of it – as a legitimate prevention tool 82 See Kathryn Sikkink, The Justice Cascade (Norton, 2011) 83 ICC, Paper on some policy issues before the Offi ce of the Prosecutor, at 3, available at: http://www.icc- cpi int/NR/rdonlyres/1FA7C4C6-DE5F-42B7–8B25–60AA962ED8B6/143594/030905_Policy_ Paper.pdf, accessed on February 2012 779 Juan E Méndez and Catherine Cone A truth- seeking and truth-telling exercise adapted to the culture and circumstances offers victims a meaningful voice and ensures respect in their dignity as human beings It also recognises their plight and signifies that they are no longer considered second-class citizens The same can be said of a well- designed and executed programme of reparations that attempts to compensate victims for their suffering in material and non-material ways that not insult their dignity as victims Apologies and moral reparations should always be a part of the programme, as should cultural and societal efforts to memorialise the tragedy of repression and to remember the victims Institutional reform and vetting of members of security forces and other bodies also restore confidence even when individual determination of guilt or innocence in a criminal trial is not possible, as long as a measure of due process is preserved All of these processes represent a holistic, comprehensive approach to justice and one that aspires to the largest degree of universality That is why it is more likely to satisfy the aspirations of all victims and to contribute most effectively to peace, to prevention, to the rule of law and to stability of democracy, than a singular emphasis on prosecutions Nevertheless, transitional justice mechanisms achieve those goals only if they are not conceived as poor alternatives to justice, or as ‘justice lite’ Therefore, they only work when and if they include criminal prosecutions at the heart of the process, even if those prosecutions are reasonably and transparently limited in scope Truth, reparations, memory and institutional reform, and where necessary a measure of concrete reconciliation between communities, will not only complement the effort to bring criminal investigations, prosecutions and effective punishment of the most culpable: they will also expand and universalise their effect so that all stakeholders can see that justice is being served Select bibliography 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, UNGA Res 40/34, ( 29 November 1985 ) UN Doc A/Re.s 40/34 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UNGA Res 60/147, ( 21 March 2006) UN Doc A/Res 60/147 M Cherif Bassiouni, ‘International Recognition of Victims’ Rights’ ( 2006) 16 ( ) Hum Rts L Rev 211–27 P de Greiff (ed.), The Handbook of Reparations ( Oxford University Press, 2006) P Hayner, Unspeakable Truths: Confronting State Terror and Atrocity ( Routledge, 2001) J.E Méndez, ‘Accountability for Past Abuses’, 19 Hum Rts Q 255, 259 – 62 (1997 ) A Meyer-Rieckh and P de Greiff (eds), Justice as Prevention, Vetting Public Employees in Transitional Societies ( Social Science Research Council, 2007 ) OHCHR, ‘Rule of Law Tools for Post-Confl ict States: Reparations Programmes’ ( 2008 ) UN Doc HR/PUB/08/1 (OHCHR Reparations Report), available at: http://www.ohchr.org/Documents/ Publications/ReparationsProgrammes.pdf, accessed on 26 February 2012 N Roht-Arriaza and J Mariezcurrena (eds), Transitional Justice in the 21st Century: Beyond Truth versus Justice (Cambridge University Press, 2006) R Teitel, Transitional Justice ( Oxford University Press, 2000 ) UN Secretary-General, ‘Rule of Law Tools for Post-Confl ict States: The Rule of Law and Transitional Justice in Confl ict and Post-Confl ict Societies’ ( 2004 ) UN Doc S/2004/616 (UN SecretaryGeneral Transitional Justice Report) 780 Index accountability: civil society organisations (CSOs) 166–7; ESCR implementation 552–4, 560–1; transitional justice 765–6 accused, rights of 699–703 Acton, Lord 73 advocacy: Field Officer (HRFO) role 174, 175 Africa/African System 122; admissibility of complaint 507; case law 453–6; and civil society organisations (CSOs)/(NGOs) 155, 156–7, 162; Commission, monitoring/advisory function 671–2; Commission and Court, relationship between 464; consistency with UN mechanisms 518–19; Constitutions 450–1, 458–9; contextual approach to states 461–4; cultural rights 309, 310; environment 289–90, 298; and ICJ 361, 364–6; impact, direct and indirect 446–7; impact, reasons for lack of 456–61; judiciary 460–1; legal pluralism and customary law 305–6, 307–8, 311; legislation 451–3, 459–60; rapporteurs/special procedures 678, 750; Refugee Convention 233, 235, 236, 239; remedies 680; state compliance 447–50; sub-regional fora, emergence of 464–5; women’s rights/Protocol 310, 318–19, 461; see also South Africa agreement foundationalism 36–7 agriculture/food security 295–7 Al Awlaki, Anwar 134 Al-Adsani case 91, 92, 93, 96, 107, 359 Al-Bashir, Omar 151, 494 Al-Jedda case 395, 653–4, 656, 656–7 Al-Skeini case 395, 642–3, 645–6, 647, 656–7 Alston, Philip 200–1, 524 American Anthropological Association (AAA) 49 American Convention (ACHR) see InterAmerican System (IASHR) American Declaration (1948) 639, 641; see also Inter-American System (IASHR) American Declaration of Independence 26, 27 American Political Science Association (APSA) 65–6 amnesties 774–6 Amnesty International 17–18, 164, 218, 222 An-Na’im, A.A 121, 317–18, 320 Annan, Kofi 744 Arab Charter on Human Rights 489–92 Arab Commission on Human Rights 495; Committee of Experts 492 Arab Human Rights Committee 489 Arab Spring: and HRC 753; and League of Arab States (LAS) 484, 500–4; responsibility to protect 151; women’s rights 132 Arab States (LAS) 483–5; children’s rights 495–6; expert bodies 489–92; freedom of expression 496–7; and ICC 493–5; and IHRL 493–500; main bodies 485–92; minorities and noncitizens 497–8; Parliament and Court 487–9; political bodies 485–7; reform process 484; suppression of terrorism 498–500; universalism 495 Arendt, Hannah 30 armed confl ict: and children 137–9; ECtHR 412–13; and occupation 363; see also noninternational armed confl icts (NIACs); terrorism/counter-terrorism Arms Trade Treaty, CSO campaign 165–6 Asbestos case 257 ‘Asian values’ 52, 122, 128–9 Association of South East Asian Nations (ASEAN) 468, 470–1, 480–1; Intergovernmental Commission (AICHR) 473–6; migrant workers’ rights (ACMW) 479–80; women and children’s rights (ACWC) 476–8 asylum, right to 240–3 authoritarian regimes 22 ‘automatic succession’, doctrine of 101 Bahrain: Arab Spring and Arab League (LAS) 501 Bandung Conference 116 Bangkok Declaration 128 Bankovi case 90, 640, 642–3, 646, 648 banks 276; and due diligence 278–81; nature of risks 277–8; remedies 281–3 basic needs theory 37–8 781 Index Bassiouni Commission 204 Beitz, Charles 33–4, 35 benchmarks/indicators, ESCR 558–9 Bernstein, Richard 32 binding effect: treaty bodies and domestic judicial systems 719–21 bombing/shooting: extraterritorial jurisdiction 643, 646, 647 Boyd, D.R 297, 298 Brahimi Report 171–2 budget analysis, ESCR 559–60 Buergenthal, T 709 Burke, Edmund 28, 30, 40 business sector: Field Officer (HRFO) role 179–80 Cambodia (ECCC) 687–8, 689, 700, 701, 703 capacity building: Field Officer (HRFO) role 174, 175 ‘Capstone Doctrine’ 386–7 Carson, Rachel 288 Cartagena Declaration 233, 236 Carter, Jimmy 17, 147 Cassin, Rene 14, 113–14, 215 CEDAW see Convention on the Elimination of all forms of Discrimination against Women CERD see Convention on the Elimination of all forms of Racial Discrimination Chang, Peng- chun 113–14 Charney, J 515 Charnovitz, Steve 249, 251 child labour 341, 344, 347 children: and armed confl ict 137–9; and death penalty 490–1 children’s rights: Arab States (LAS) 495–6; ASEAN 476–8; UN Convention (CRC) 120, 308, 344, 362, 364, 495–6, 711 China 23, 114–15, 146 China Publications case 259–60 civil and political rights: impact of new confl icts 133–7; see also extraterritorial application of treaties; International Covenant on Civil and Political Rights (ICCPR) civil society organisations (CSOs)/(NGOs): accountability and legitimacy 166–7; Arab States (LAS) 486–7; campaigns and influence 164–6; in different formal contexts 153–8; Inter-American System (IASHR) 433–4; and International Labour Organization (ILO) 349–50; monitoring existing norms 158–9; representation, complaints, and expert briefs 161–4; and social movements 65–6, 129; and Special Procedures 731; treaty bodies and Universal Periodic Review 159–61, 178–9, 719, 748, 759 civilian casualties 149 Clapham, Andrew 137, 138, 523, 524 Clark, Anne Marie 159–60 782 climate change see environment cluster approach to humanitarian emergencies 176–8 Cold War 13–14, 16–17, 21; and 1968 developments 64–6; early 64; end of 66, 119; International Labour Organization (ILO) 342–3 colonial extension clauses 638–9, 648–9 colonialism 12–13, 14, 16; decolonization see developing world; legal pluralism and customary law 305–8, 311; natural law tradition 111–12; resistance to universalism 53 commercial banks see banks Commission on Human Rights 15, 113–14, 224, 225, 666, 743–4; see also Human Rights Council (HRC) commissions of inquiry 202–4, 756 communism see Cold War; Soviet Union communitarianism 129 complaints see civil society organisations (CSOs); enforcement; remedies/reparations; Special Procedures; treaty bodies Compliance Advisor/Ombudsman (CAO) 275 confl ict resolution 774–8 consular protection cases, ICJ 364, 366 Convention on the Elimination of all forms of Discrimination against Women (CEDAW): admissibility of complaints 162, 163, 510–11, 512; and Arab Charter 491; and cultural rights 56, 308, 310; scope of applicability 639; UN General Assembly 66 Convention on the Elimination of all forms of Racial Discrimination (CERD): defi nition of racial discrimination 343–4; early warning and urgent action procedures 678; extraterritorial application 362, 639, 649–50; founding 66, 116; inter- state complaints 674, 710 Convention on the Rights of the Child (CRC) 120, 308, 344, 362, 364, 495–6, 711 Copenhagen Process 212 corporate responsibility 536–40 Cottingham, J et al 557–8 Council of Europe 407–8; Parliamentary Assembly (PACE) 667–8; Venice Commission 569 counter-terrorism see terrorism/counterterrorism country visits and communications 735–7 country- specific histories 67–8 country- specific and thematic mandates 726–7, 740, 749–50, 759 Court of Justice of the European Union (CJEU) 237 crimes against humanity 220, 533; see also transitional justice; specifi c tribunals Index criminal law see International Criminal Court (ICC); international criminal law (ICL) and tribunals cultural relativism 51–4, 60–1, 121–2 customary law 303–4; culture and 304–8; culture and women’s rights 313–17, 628–30; and IHRL 308–11, 317–21; international 385–6; South African Constitution and Bill of Rights 311–17, 318, 319, 320–1 Cyprus–Turkey confl ict 186, 207–8, 640, 643, 646 Dañino, Roberto 268, 269 Darfur, Sudan 129, 151, 493–4, 777 data protection, privacy and 587–9 De Búrca, G 422–3 death penalty 429, 433, 495, 498, 499; children 490–1 decision-making: treaty bodies and domestic judicial systems 719–21 Declaration of Human Rights Defenders 533–4 Declaration on the Right to Development (UD-RTD) 606 Declaration on the Rights of Indigenous Peoples 272, 310 Declaration/Charter of Philadelphia (1944) 341–2, 602 decolonization see developing world defamation of religion 570–2 defence, rights of 699–703 delays, and expeditious trial right 701–3 demarcation: humanitarian law (IHL) and IHRL 191 democracy: African states 448, 449, 450, 458–9, 462; and foreign policy 148–9; illiberal regimes 22; and transitional justice 766, 774, 775, 780 derogations (states) 206 derogations (UNSC) 376; concept 396–8; confl ict of obligations 394–6; core features 398–400; extraterritorial context 652–6; interpreting UN Charter Article 103 400–1; jurisprudence: review and verdict 402 Dershowitz, A 136 detention: Guantanamo 134, 199, 656, 658, 659–60; humanitarian (IHL) and IHRL 135–6, 198–9, 207–8, 211–12; pre-trial 22–3; torture, renditions and extrajudicial executions 584–7; Working Group on Arbitrary Detention (WGAD) 198–9, 509; see also Al-Jedda case; Al-Skeini case developing world 109–10, 124–5; and ‘developed’ world, rights of refugees 243; future directions 122–4; historical and philosophical origins of IHRL 111–12; HRC membership 756–7, 758–9; and making of contemporary IHRL 112–22; nationalism 130 development, right to 117–18, 120–1 Diallo case 100, 355, 360–1, 364–6, 516 dignity, respect for 28–9, 318, 387–8 disabilities 164, 512–13 disappearances: Convention (ICPPED) 233, 506–7, 709, 711; Latin America 130, 164, 432, 438; UN investigation 508–9 domestic law: economic, social and cultural rights (ESCR) 550–6; horizontal collisions between areas of 188–9; and treaty bodies 719–21 domestic violence 540–2, 624–5 double standards: state sovereignty and humanitarian model 129–32 drug trafficking 220–1 Dworkin, R 103–4 early warning and urgent action procedures 678 ECCC (Cambodia) 687–8, 689, 700, 701, 703 economic, social and cultural rights (ESCR): domestic law 550–6; evolution of 546–50; implementation 556–8; new tools and techniques 558–61; see also International Covenant on Economic, Social and Cultural Rights (ICESCR) Economic Community of West African States (ECOWAS) 465 Economic and Social Council (ECOSOC)Arab 486; history 11–12, 113, 666, 743; NGO rights 156–7; Resolution 1503 and procedure 15, 163, 510, 676 ‘effective control’ test of state responsibility 99–100 Egypt 35–6, 41; Arab Spring and Arab States (LAS) 500 Emmerson, B 534–5 enforcement 76–8, 663–5; developing countries 118–19; diplomatic initiatives 665–7; early warning and urgent action procedures 678; future challenges 680–1; General Comments 674; independent monitoring bodies 669–72; individual communications/complaints 675–6, 710–11; inter-state complaints 674–5, 710; member state obligations 667–9; periodic state reporting 672–4, 709–10, 713–14, 716; see also remedies/reparations; Special Procedures; treaty bodies Enlightenment 26, 27–8, 30, 67, 71, 74 environment 288–93; anthropocentric and holistic approaches 286–8; ‘conservation’, notion of 285–6; international environmental law, principles of 297–300; land grabs 295–7; resilience 294–5 equality of arms principle 700–1 equality/non-discrimination, treaty bodies’ interpretation 511–13 Equator Principles (EPs) 279, 281–2 783 Index erga omnes and jus cogens 94–7, 355–9 EU Qualification Directive 237 European Commission of Human Rights 186, 207, 418 European Convention on Human Rights (ECHR) 57; complaints 162, 507; environment 289, 291, 292; EU accession 423–4 European Court of Human Rights (ECtHR): caseload and repetitive cases 676, 680; counter-terrorism 585–6; doctrine of margin of appreciation (DMA) 57–8, 59; egregious violations 412–14; environment 291–2, 297–8; extraterritorial jurisdiction 90–1, 644, 645–6, 647–8; freedom of religion 569, 573–5, 576–7; genernal law (GIL) and IHRL 90–1, 92, 93, 96, 99, 102, 104; and Human Rights Council (HRC), duplication of complaints 511, 513, 516–18; humanitarian law (IHL) and HRsL 207–9; and ICJ 360, 361; interpretation of Convention (ECHR) 414–15; monitoring/ advisory function 670; NGO complaints and representation 155, 161, 161–2, 164; prohibition of refoulement 234–5; redress and systemic violations 415–17; reforms 417–19; retroactive prosecution 226–7; victim participation and reparation 692–3, 696–7 European Social Charter, complaints procedures 154–5 European Union (EU) 419–24 evidence gathering in confl ict situations 773–4 executions 197–8, 199–200, 206 ‘experts’/‘expertise’ 123, 124; Arab States (LAS) 489–92; civil society organisations (CSOs) 161, 164; Field Officers (HRFOs) 177–8; international humanitarian law 187; see also Special Procedures extrajudicial killings 134 extraterritorial application of treaties 637–9; colonial extension clauses 638–9, 648–9; free- standing models 649–50; ICJ 362; individual- state relationship 650–6; ‘jurisdiction’ 637–8, 639, 640–1; jurisdiction triggers 641–9; ‘legal black hole’ 656–60 fair trial, right to 696–8, 699–703 fairness/non- discrimination, WTO mandate 249, 250 family planning 557–8 feminist perspective 45, 46 field operations (HRFOs): emerging issues and challenges 178–80; historical overview 169–73; partnerships 175–6; professionalisation 173–5 fi nancial investment: HRFO role 180; see also banks; International Finance Institutions (IFIs) 784 follow-up mechanisms 717–18; Special Procedures 718, 733–4 food: production 295–7; Special Rapporteurs on Right to 295, 296–7, 300 foreign policy 142–6; moralism or realism 146–9; normative positioning 143–4; operative positioning 144–6; priority- setting 142–3 foundationalism 30–2; beliefs and assumptions 40–2; ‘international’ factor 39–40; and non-foundationalism 32–6; types 36–8 fragmentation debate 514–19; see also general international law (GIL) and IHRL Frankfurt School 69, 70, 75, 77 freedom of expression: Arab States (LAS) 496–7; and freedom of religion 572–3 French Declaration/Revolution 26, 27, 30, 67, 133 Frouville, Olivier de 156 Fukuyama, Francis 20, 74, 119 Gaza: Commission of Inquiry 203–4; Special Procedures report 197–8; see also Palestine– Israel confl ict gender: sex/gender distinction 615–16; sexual orientation and gender identity 631–3, 752; see also women, violence against; women’s rights General Agreement on Trade and Tariffs (GATT) 249, 251–2; health protection (Article XX(b)) cases 255–7 General Assembly see United Nations General Assembly General Comments 674 general international law (GIL) and IHRL 79–81; foundation principles 81–7; hermeneutic constraint 87–94; pushing disciplinary boundaries 94–107 Geneva Conventions 137, 198–9, 201, 206, 207, 211, 220 Genocide Conventions 63–4, 164, 215–16, 217, 220; reservations 103, 326, 334, 337–8, 359, 361–2 Gianviti, Francois 268–9 ‘global transnational elites’ 165 globalization 20–1, 66, 119–21; disciplinary and regulatory 602–3 Goedhart, Van Heuven 243 Goldstone Report 203–4 Gourgourinis, A 88, 93 governmental NGOs (GONGOs) 156, 166 Great Powers 10–11, 21 ‘Green Revolution’ 295 ‘greening’ of human rights 290–1 Greenpeace 158, 166 Griffi n, James 26, 27, 54 Guantanamo detainees 134, 199, 656, 658, 659–60 Index Hale, Baroness 395, 649 health protection vs free trade 255–7, 258–9 Helsinki Conference/Agreement 17 High Commission for Human Rights see Office of the UN High Commission for Human Rights (OHCHR) High Commissioner for Refugees (UNHCR) 232, 236, 242–3 historical dialectic 70, 75 historical materialism 69, 70 historical perspective 63–6; origins of human rights 10–13, 111–12 historical studies 66–8 Hobbes, Thomas 43 human rights: fundamental ideas 9–10; international 13–15; juridification 18; new challenges 18–23; restoration 16–18; universal origins 10–13, 111–12 Human Rights Committee: and civil society organizations (CSOs) 161; corporate responsibility 537–8; counter-terrorism 586–7; cultural sensitivity 55; General Comments 674; general law (GIL) and IHRL 84, 96, 98, 101, 103; humanitarian law (IHL) and IHRL 135, 186, 205–6; ICJ interpretation of ICCPR 360–1; reservations to treaties 103, 325, 327, 329, 334–5, 337; and Security Council (UNSC) 375, 391–2; Special Procedures 15 Human Rights Council (HRC): achievements 752–6; Advisory Committee, complaint mechanism and subsidiary bodies 751; agenda and working methods 747–8; and civil society organizations (CSOs) 156, 163; commissions of inquiry 202–4, 756; counter-terrorism, permissible limitations test 588–9; establishment of 744–7; future role 758–60; Independent Expert on environment 285, 286; institution building 747–51; membership 756–7, 758–9; prosecutorial intitiatives 766; response to emergencies 755–6; Special Procedures see Special Procedures; standardsetting and development of IHRL 753–4; state- specific resolutions 666–7; transitioning from Commission 743–4; UPR see Universal Periodic Review (UPR); weaknesses and future reform 756–8 Human Rights Field Operations see field operations (HRFOs) Human Rights Watch 18, 222 humanitarian emergencies: Field Officer (HRFO) role 176–8; Human Rights Council (HRC) response 755–6; see also public emergency humanitarian model: armed confl ict 135–6; and state sovereignty 129–32; see also international humanitarian law (IHL) and IHRL Humphrey, John 11, 113–14, 223, 383 Hunt Report 606–7 ICTR see Rwanda Tribunal ICTY see Yugoslavia Tribunal (ICTY) ‘identitarianism’ 44 Ilascu case 644, 647–8 imperialism see colonialism India: environment 290–1; ESCR 553, 555–6 indicators/benchmarks, ESCR 558–9 indigenous peoplesconsent to investment projects 272; cultural rights 309–10; land rights 292–3 individual(s): communications/complaints 675–6, 710–11; concept of 42–4; duties and community 114–15; extraterritorial control over 644–6; violence 540–2 individual–state relationship 46, 650–6 individualism, Western 49–50, 51 informal economy 348, 350 inheritance/succession: South African Constitution and customary laws 313–17, 318, 319, 320–1 institution building: Human Rights Council (HRC) 747–51; Special Procedures 728 integrations: humanitarian law (IHL) and IHRL 191–2 intellectual property rights (TRIPS) 252, 260 Inter-Agency Standing Committee (IASC) 176 Inter-American Commission on Human Rights 155, 206–7, 430–1, 434–6, 511 Inter-American Court of Human Rights (IACtHR) 431; achievements 436–9; exhaustion of domestic remedies requirement 675; humanitarian law (IHL) and IHRL 206–7; and ICJ 360, 361; indigenous land rights 292–3; monitoring/advisory functions 670–1; remedies 680; victim participation and reparation 693–4, 697 Inter-American System (IASHR): achievements 434–9; context 428–34; judicialisation 441–2; rapporteurs 678; reform 440; resources 441; treaties 440 inter- state complaints 674–5, 710 interdisciplinary approach 71–8 intergovernmental complaints procedures 154–5 intergovernmental organizations (IGOs) 69, 156–8, 525 International Centre for Settlement of Investment Disputes (ICSID) 266, 275 International Committee of the Red Cross (ICRC) 100–1, 135, 198–9 International Court of Justice (ICJ) 353–4; enforcement role 383–9; general law (GIL) and IHRL 90, 91, 94–6, 97, 98–9, 100, 102, 103, 107; human rights norms 354–9; humanitarian law (IHL) and IHRL 192–4, 785 Index 363; ICCPR and armed confl ict 135, 363; interaction with other mechanisms 367–9; interpretation of treaties 359–61; provisional measures 366–7; reservations to treaties 361–2; scope of application of treaties 362–3; Security Council (UNSC) powers 380; violations and remedies/reparation 363–6, 679 International Covenant on Civil and Political Rights (ICCPR): admissiblity of complaints 506–7, 512; and Arab Charter 490–1; cultural rights 50–1, 54, 308–9, 311, 312; First Option Protocol 15; and Helsinki Agreement 17; and ICESCR 64–5; and ICJ 360–1, 362, 363, 364; and International Labour Organization (ILO) 344; positive obligations and state ‘due diligence’ 98; reservations to treaties 56, 334–5; retroactive prosecution 224–5 International Covenant on Economic, Social and Cultural Rights (ICESCR): and Committee (CESCR) 456–9, 673; cultural rights 50–1, 54–5, 308, 309; and ICCPR 64–5; and ICJ 362, 364; and International Labour Organization (ILO) 344; Optional Protocol 711; and trade 246, 247, 250, 252, 253, 260 International Criminal Court (ICC): and Arab States (LAS) 493–5; prosecutorial strategy 222–3; victim participation and reparation 685–7, 688–9, 695–6, 697, 700, 701, 702–3; see also Rome Conference/Statute international criminal law (ICL) and tribunals: crime of aggression, peace and human rights 221–4; history 215–17; impunity and obligation to prosecute 217–19; non- state actors 531; retroactive prosecution 224–7; subject-matter of crimes and relationship to human rights norms 219–21; victims’ rights and reparations 219, 228; see also specifi c tribunals International Development Association (IDA) 266, 267 ‘international’ factor 39–40 International Finance Corporation (IFC) 266, 267, 271–2, 275, 279–81 International Finance Institutions (IFIs) 265–75; policy change 266–72; positive legal duty 272–4; remedies 274–5; UN Guiding Principles 273–4, 276, 278, 281 international humanitarian law (IHL) and IHRL 185–7; future directions 209–12; horizontal collisions between 188–91; human rights and (quasi)-judicial mechanisms 194–209; ICJ approach 192–4, 363; possible general approaches 191–2; see also humanitarian model international investment agreements (IIAs) 180 International Labour Organization (ILO): Declaration of Fundamental Principles and Rights 786 347–8; future challenges 348–9; governance structures 350; origins of 339–40; place in rights framework 340–4; standards and supervision 345–7, 351–2; tripartism 349–50 International Law Association (ILA) 80–102 passim International Law Commission (ILC) 80, 218; fragmentation debate 80–106 passim, 515; reservations to treaties 323–36 passim International Monetary Fund (IMF) 266–7, 268–9, 270, 272; Independent Evaluation Office (IEO) 275 international trade see trade (World Trade Organization) intersectionality 630–1 investigation of crime, victims’ right to 690–4, 698 Jennings, Robert 377 judicial accountability, ESCR implementation 552–4 juridification 18, 607–10 jurisdiction, extraterritorial 637–8, 639, 640–1; state immunity and 90–2; triggers 641–9 jus cogens: crimes against women 132; and erga omnes 94–7, 355–9; prohibition against torture 136; prohibition of amnesty 219; and Security Council 388 Kadi case 391, 396, 590–1 Kampala Conference (2010) 221, 223 Kant, Immanuel 26, 37, 38, 45, 74, 75, 77, 112 Kennan, George F 64 Kennedy, Duncan 33 Koskenniemi, M 515 Ksentini, Fatma Zohra 285, 289 labour rights see child labour; International Labour Organization (ILO); migrant workers Lacey, Nicola 45 land grabs 295–7 land rights of indigenous peoples 292–3 landmines ban 165 Latin America 122; Cartagena Declaration 233, 236; disappearances 130, 164, 432, 438; environmental rights issues 298–9; ESCR 553, 554, 555; Inter-American Court of Human Rights 122; Pinochet 19–20, 96, 218, 434, 542, 774; transitional justice 120, 767–8, 770, 772, 774; see also entries beginning Inter-American Lauterpacht, Hersch 216 Lawrence, T.J 143 League of Arab States see Arab States (LAS) Lebanon: Commission of Inquiry 202–3; Special Procedures report 196–7; Special Tribunal (STL) 688–9, 696, 701, 702–3, 772–3 Index legal pluralism and customary law 305–8, 311 Lemkin, Raphael 216, 220 lex specialis principle: armed conflict/detention 135–6, 208; humanitarian law (IHL) and IHRL 193, 194, 200, 208, 210, 363; VCLT and 85–7, 92–4 liberalism and secularism 26 Libya 146, 151; Arab Spring and Arab States (LAS) 500–1; Commission of Inquiry 204 Lindroos, A 80 lis pendens 506–14 Locke, John 37, 45 Lockerbie case 377, 393, 401 Lowe, Vaughan 157–8 Lucerne Report 716–17, 719–20 McCorquodale, R 98 McLachlan, C 103, 104 Malik, Charles 113–14 Mamdani, Mahmood 129 margin of appreciation (DMA), doctrine of 57–9 Maritain, Jacques 30–1, 41 marriage: sexual orientation and gender identity 632–3; women’s rights in 622–4 Marshall, T.H 67 Marx, Karl/Marxism 28, 46–7, 74 media reports: Special Procedures 731–2 mercy killings in armed confl icts 201 migrant workers: ASEAN Declaration 479–80; UN Convention 120 Mill, John Stuart 37 minorities: cultural rights of 308–9; and non- citizens, Arab States (LAS) 497–8; UN Sub-Commission 216, 218, 228, 285, 289 monitoring/monitoring bodies: civil society organisations (CSOs) role 158–9, 164–6; Field Officer (HRFO) role 174, 175; independent 669–72; mechanisms 709–12; reservations to treaties 336–7 moralism or realism in foreign policy 146–9 Morgenthau, H.J 145, 147 Moyn, Samuel 29–30 ‘multiple discrimination’ 630–1 multistakeholder initiatives, civil society organisations (CSOs) 153–4 Murdoch, J 409 Nada v Switzerland case 400, 591–2 Naidoo, Kumi 166 nationalism 130 NATO 16, 146, 151 natural rights tradition 25–30, 111–12 naturalistic foundationalism 36–7 neo-liberalism 119–20 New International Economic Order (NIEO) 117, 122 new technologies 718–19 Nickel, James 32, 38 non- discrimination: WTO mandate 249, 250 non-governmental organizations (NGOs) see civil society organisations (CSOs)/(NGOs) non-international armed confl icts (NIACs) 198, 199, 200, 201, 210–11; humanitarian law (IHL) 530–1; war crimes 220 non-intervention principle 145–6 non-refoulement principle and protection from harm 232–9, 242 non- state actors (NSA) 524–6; armed groups, human rights obligations of 137–9; categories 529–42; conceptual issues 526–9; general law (GIL) and IHRL 89–90 Nordic states: reservations to treaties 330 norm confl icts: general law (GIL) and IHRL 85–7, 91–4; Security Council (UNSC) 393–4 norms: development and monitoring by NGOs 157–9, 164–6; extraterritorial application of IHRL on civil and political rights 650–60; foreign policy 143–4; ICJ 354–9; subject-matter of crimes and relationship to 219–21; transitional justice 762–4; see also erga omnes and jus cogens Nowak, M 680–1, 719 Nuremberg Tribunal 216, 217, 221, 225–6; Charter 220 ‘objects’/‘subjects’ debate: general law (GIL) and IHRL 89–90 OECD Guidelines for Multinational Enterprises 281 Office for Democratic Insitutions and Human Rights (ODIHR) 22 Office of the UN High Commission for Human Rights (OHCHR): and civil society organizations (CSOs)/(NGOs) 160, 719; and field operations (HRFOs) 170–3, 177, 179; and Human Rights Council (HRC) 667, 746, 755, 759–60; Special Procedures 739, 740; UN treaty bodies system challenges and reforms 712–13, 714–15, 719 O’Flaherty, M 173–5 oppression 71–3 oral laws 306, 307 organised crime 535–6 Organization of American States (OAS) 428–30; member states 431–3; member states obligations 668–9; see also Inter-American System (IASHR) and specifi c institutions Organization for Security and Cooperation in Europe (OSCE) 22, 569 Palestine–Israel confl ict: Palestinian refugees in Arab States 497–8; Wall case, ICJ 362, 364, 365; see also Gaza 787 Index peace: and crime of aggression 221–4; right to 224 peace negotiation 774–8 peacekeeping missions 170–3, 386–7 Pellet, A 94, 103, 108, 215 Phuong, C 507, 512, 514 Pillay, N 715, 755 Pinochet, A 19–20, 96, 218, 434, 542, 774 piracy 220 Pogge, T 598, 611–12 positivism and formation of international obligations 100–1 post- structuralism 69, 70 post-World War II perspectives 63–4 poverty (EP/GP) 597–9; and development, idea of 601–3; IFI strategies 269–71; philosophical/ meta- ethical discourse 610–12; scientific and changing approaches 599–601; UN discourse 603–10 power, phenomenology of 44–7 pragmatism 32–3 Preis, A.B.S 305, 317 presumption of innocence 696–8, 699–700 primary and secondary rules: general law (GIL) and IHRL 84–5, 87, 88, 91–2 privacy and data protection 587–9 private security services 154 prosecution: impunity and obligation to prosecute 217–19, 779; retroactive 224–7; transitional justice 765–7, 776–7; vs truthtelling 774–5 public emergency: concept of 398–400; extraterritorial context 652–6; see also humanitarian emergencies public international law (PIL) 80–1, 82, 83 public/private distinction 45–6 race isses see Convention on the Elimination of all forms of Racial Discrimination (CERD); South Africa Rawls, John 31–2, 33, 39, 40, 45, 50 Raz, Joseph 33–4, 39 realism 69, 73; and moralism in foreign policy 146–9 reductionist accounts of human nature 43–4 Refugee Convention (1951) 233, 235–6, 238–40, 242, 243 refugees 231–2; Arab States (LAS) 497–8; asylum, right to 240–3; content and quality of international protection 239–40; nonrefoulement principle and protection from harm 232–9, 242; persecution, meaning of 235–8; Syria 504 Reiter, A 80–1, 90, 96, 98 religion 563–6; advancing rights 577–9; baseline issues 574–5; clothing and symbols 573–4; defamation of 570–2; and freedom of 788 expression 572–3; international ‘protection’ 567–70; and secularism 27–8, 40–2; unifying role of respect 575–7; and women’s rights 132, 133, 628–30 remedies/reparations 678–80; ESCR violations, domestic law 554–6; extraterritorial context 651; state responsibility 99–100; transitional justice 769–70; see also entries beginning victim reporting: Field Officer (HRFO) role 174, 175; state 672–4, 709–10, 713–14, 716 res judicata 506–14 reservations to treaties 56, 323–4; ‘flexible regime’ 324–7; integrity preserved and controlled 332–7; invalid, effects of 328–32; reconciliation of approaches 337–8; unity preserved 324–32 responsibility to protect 120, 122–3, 146, 151–2, 222 restoration of human rights 16–18 retroactive prosecution 224–7 ‘review, rationalization, and improvement’ (RRI) of mandates 728 Riphagen, W 85 Rodley, N 84, 107, 375, 376, 383, 398, 517, 732 Rome Conference/Statute 149–50, 151, 217, 220–1, 222–3; non- state actors 137; reparations for victims 228; retroactive prosecution 225; war crimes 531 Roosevelt, Eleanor 11, 57, 61, 113, 128 Roosevelt, Franklin D 221, 223 Ruggie, John 20–1, 276 Russia 23; EUCtHR cases 208–9, 291–2, 644, 647–8; ICJ cases 362, 367, 649; and US 22 Rwanda Tribunal (ICTR) 221, 229, 684 sanctions, economic and targeted 251, 395–6, 399, 400, 502 Sayadi & Vinck v Belgium case 375, 376, 383, 391–2, 396, 591 secularism: and liberalism 26; and religious belief 27–8, 40–2 Security Council see United Nations Security Council (UNSC) self- defence and non self- defence, wars of 653–6 self- determination 115–17, 120, 309, 310 Sen, Amartya 74, 128 Sepúlveda Report 604, 608–10 sexual orientation and gender identity 631–3, 752 sexual and reproductive rights 627–8; family planning 557–8 Shihata, Ibrahim 267 shooting/bombing, extraterritorial jurisdiction 643, 646, 647 Siedentop, Larry 26, 42 Index Simma, B 105, 107; and Pulkowski, D 88, 94, 105 Slavery Convention 638 social constructivism 69, 70 solidarity (‘third generation’) rights 118, 121 South Africa: apartheid 15, 17, 115, 116–17, 119, 130, 217–18; Constitution, Bill of Rights and customary law 311–17, 318, 319, 320–1; economic sanctions 251; ESCR jurisprudence 552, 553; transitional justice 120; Truth and Reconciliation Commission 774–5 South East Asian System 467–80; national institutions and SEANF 471–3, 480; see also Association of South East Asian Nations (ASEAN) Soviet Union 17, 18, 19, 74; see also Cold War Special Procedures 195–202, 676–8, 725–7; appointments 737, 749–50; country visits and communications 735–7; factors shaping effectiveness 730–2; and Field Officer (HRFO) role 178–9; follow-up procedures 718, 733–4; origins and fruition 15, 19; recent developments and continuing challenges 728–30; relations with HRC and OHCHR 739, 749–51; relations with other UN mechanisms and bodies 740; resources 734–5; strengthening 732–40, 749–51; training 737–8; working methods and code of conduct 738–9 Special Rapporteur 55; Extra-Judicial, Summary and Arbitrary Executions 197–8, 199–201; Human Rights Defenders 156; Right to Food 295, 296–7, 300 Special Representative of the Secretary General for Business and Human Rights (SRSG) 276, 277, 278–9 Sri Lanka 149, 752 state: and corporate responsibility 539–40; as sole duty holder 44–5; and Special Procedures 731, 735–7 state immunity and jurisdiction 90–2 state reporting 672–4, 709–10, 713–14, 716 state responsibility 85, 97–101, 667–9; sovereignty as 146, 149–52 state sovereignty: and constitution of international legal system 105–7; and humanitarian model 129–32; and individual right to asylum 240–1; as responsibility 146, 149–52 state–individual relationship 46, 650–6 Steger, Debra 249, 250 ‘structural adjustment’, IFI strategy 270–1 ‘subaltern’/‘new social movements’ 123–4 ‘subjects’/‘objects’ debate 89–90 subsidiarity principle 59–60 succession/inheritance: South African Constitution and customary laws 313–17, 318, 319, 320–1 sustainable agriculture 295 sustainable development 247, 288–9, 296–7; IFC framework 271–2; Rio+20 Conference 293, 300; and sustainability 294 Syria 149; Arab Spring and Arab League (LAS) 502–4 targeted killings 201 Tasioulas, John 26, 39 territorial control, as jurisdiction trigger 641–4 terrorism/counter-terrorism: amicus curiae brief 164; Arab States (LAS) 498–500; civil and political rights, impact on 133–6; future challenges 593–5; IHRL 531–6; international criminal law (ICL) 220–1, 531; international humanitarian law (IHL) 529–31; ‘long decade’ 581; privacy and data protection 587–9; terrorist listings 589–92; UN Strategy 582–4; unlawful measures 584–7; US, 9/11 and ‘war on terror’ 133, 530–1, 581, 587, 593, 635–6; see also detention; torture Thai Cigarettes case 255–7 Thailand–Cambodia case, ICJ 367 thematic and country- specific mandates 726–7, 740, 749–50, 759 theme- specific histories 68 theoretical approaches: interdisciplinary 71–8; new infusions 68–70; political and legal 25–47; see also entries beginning historical toleration principle 51, 52 torture: by non-state actor (NSA) (Elmi case) 532, 533; domestic violence/violence against women as 541–2, 624–5; ECtHR 413–14; European Committee (CPT) 409–10; General Assembly’s Declaration 218; and prohibition of refoulement 233–4; secret detention, renditions and extrajudicial executions 584–7; UN Convention 133, 136, 163, 164; UN Convention, Optional Protocol 709, 711 trade (World Trade Organization): challenge of rival political philosophies 246; collateralism and impartial order 253–4; embedded and imported rights 247–8; functional vs civic approach 248–50, 254, 260–1; objectives and human rights 246–53; refusals to trade 250–3; trade and non-trade interests 254–60 Trade-Related Aspects of Intellectual Property Rights (TRIPS) 252, 260 transgender persons 632–3 transitional justice 761–2; accountability, investigations and prosecutions 765–7; confl ict resolution/peace negotiations 774–8; future of 778–80; institutional reform 770–1; mechanisms 764–71; normative framework 762–4; origins of 120; state- specific implementation 771–4; truth-telling 767–9, 774–5, 780; UN Guidance Note 387 789 Index transnational/multinational corporations 20–1, 350; Field Officer (HRFO) role 179–80; OECD Guidelines 281; see also banks; corporate responsibility; International Finance Institutions (IFIs) treaty bodies: challenges and past reforms 712–14; and civil society organisations (CSOs) 159–61, 178–9, 719; current reform plans and future changes 714–21; and field operations (HRFOs) 178–9; humanitarian law (IHL) and IHRL 205–9; improving effectiveness 716–18; monitoring mechanisms 709–12; more than one body hearing same complaint 506–14; relationship between jurisprudence 514–19; rights holders’ knowledge and access 718–21; and Special Procedures 740 tribunals see international criminal law (ICL) and tribunals; specifi c tribunals Trotsky, Leon 72–3 Trust Fund for Victims 228, 686–7 truth commissions 768 truth-telling 767–9, 774–5, 780 Twining, W 305 UNESCO 30, 41, 611 United Kingdom (UK): and ECtHR see Al-Adsani case; Al-Jedda case: Al-Skeini case; ESCR 551; extraterritorial application of CERD (Roma Rights case) 649, 650 United Nations (UN): 1960s developments 64–6; counter-terrorism strategy 582–4; diplomatic intiatives 665–7; and ICJ 368, 369; and International Labour Organization (ILO) 342–4; right of petition 675–6; San Francisco Conference 11, 223–4; see also specifi c bodies, declarations and conventions United Nations Charter 11, 64, 223–4; and ICJ 354; and international fi nancial institutions (IFIs) 273; and NGOs 156; respect for dignity 318, 387–8; and Security Council (UNSC) 377–81, 383–5, 389, 393–4, 400–1; state sovereignty 105–6 United Nations General Assembly: and field operations (HRFO) 170, 177; and HRC 744–5, 757–8; and NGOs 156; ‘People’s Right to Peace’ resolution 224; sovereignty as responsibility 150–1 United Nations High Commissioner for Refugees (UNHCR) 232, 236, 242–3 United Nations Security Council (UNSC): absence of general framework 371–2; ad hoc tribunals 221, 223; children and armed confl ict 137–9; counter-terrorism 583, 589–92; debated issues 372–5; derogations see derogations (UNSC); field operations 170, 177; interpreting tension between obligations 390–2; interpretive constraint 389–90; legal 790 validity test 392; Libya 146; limitations to powers 381–8; norm confl ict 393–4; obligations of states, extraterritorial context 653–4, 655, 656; powers 376–81; sovereignty as responsibility 149–51; Syria 503; veto powers 23 Universal Declaration of Human Rights (UDHR): cultural rights 50–1, 54, 308; drafting of 112–15, 118; history of 11–13, 14, 15, 18, 30, 31, 63–4; and ICJ 354; and international crime 215–17, 221, 223–4, 225; limitations provision 382; thought, conscience and religion, freedom of 567–8 Universal Periodic Review (UPR) 748–9, 754–5; and civil society organizations (CSOs) 160–1; Field Officer (HRFO) role 178–9; and Special Procedures 726, 733, 740; and treaty bodies 721 universalism 50–1; Arab States (LAS) 495; contemporary challenges 128–33; and cultural relativism 51–4, 60–1, 121–2; margin of appreciation (DMA), doctrine of 57–9; qualified 54–7; subsidiarity 59–60 urgent action procedures 678 US 14, 16–17; 9/11 and ‘war on terror’ 133, 530–1, 581, 587, 593, 635–6; Alien Tort Claims Act (ATCA) 282–3; Carter administration 17, 147; humanitarian law (IHL) and IHRL 200, 201; ICCPR reservation 56, 122; legal academia 33; Patient Protection and Affordable Care Act 551; and Russia 22 utilitarianism 37, 44 VCLT see Vienna Convention (Law of Treaties) (VCLT) Venice Commission 569 victim participation and reparations (international criminal proceedings) 683–4; as challenge to human rights 698–706; defence, rights of 699–703; history and contents 684–9; as implementation of human rights 690–8; limitations 694–6; other victims, rights of 703–6 victim rights and reparations 228; terrorism 594–5; transitional justice 767–70 Vienna Convention (Consular Relations) (VCCR) 364 Vienna Convention (Diversity of Cultural Expressions) 303–4 Vienna Convention (Law of Treaties) (VCLT): human rights exceptionalism and incorporation 101–4; and lex specialis principle 85–7, 92–4; reservations 324, 325–6, 327, 328, 333, 336 Vienna Declaration (1993) 18–19, 303, 457, 558 Waldon, J 34, 36 war crimes 220; see also transitional justice; specifi c tribunals Index Western colonialism see colonialism Western ethnocentrism see cultural relativism Western philosophical traditions 25–6, 49–50, 110–12, 286–7 Whelan, D.J and Donelly, J 14 Wolterstorff, N 40, 43 women, violence against: state obligations and non- state actors 625–6; as torture 541–2, 624–5 women’s rights 132–3; Africa 310, 318–19, 461; ASEAN 476–8; concepts of equality and violation of 621–4; continuing challenges 633–4; critiques of dominant human rights system 617–21; custom, religion and tradition 628–30; customary law and South African Constitution 312, 313–17, 318, 319, 320–1; intersectionality 630–1; sexual and reproductive 557–8, 627–8; UN recognition of equality 616–17; see also Convention on the Elimination of all forms of Discrimination against Women (CEDAW) Wood, M 374, 379–80 workers’ rights see child labour; International Labour Organization (ILO); migrant workers working methods, UN 716–18, 738–9 workplace rights risks 277 World Bank (WBG) 266, 267–8, 269–70, 272, 279; Inspection Panel 274–5 World Court of Human Rights 719 World Health Organization (WHO) 299, 559 World Trade Organization (WTO) see trade (World Trade Organization) Yemen 502 Yugoslavia, disintegration of 205 Yugoslavia Tribunal (ICTY) 220, 221, 223, 227, 380, 388; reparations 705; victims as witnesses 684 791 .. .Routledge Handbook of International Human Rights Law The Routledge Handbook of International Human Rights Law provides a defi nitive global survey of the discipline of international human rights. .. protection of human rights under international law extends beyond international human rights law stricto sensu Human rights concepts inform and shape other areas of international law, for example, international. .. on international law, human rights law, and international environmental law, including Remedies in International Human Rights Law (awarded the 2000 Certificate of Merit, American Society of International