Challenges in International Human Rights Law: Volume III

Cover
Half Title
Title Page
Copyright Page
Contents
Acknowledgements
Series Preface
Introduction
PART I: CONTENTS AND SCOPE
	Universality
		1 On the Universality of the Universal Declaration of Human Rights
			1. The Origins of Human Rights
			2. Individual Rights and Human Rights
			3. The Eighteenth and the Twentieth-Century Theories of Rights
			4. Conclusion: Human Rights as the Language of the Oppressed and the Language of Power
		2 Human Rights in Islam and International Law: A Conceptual Analysis
			The Definitional Debate and Nature Of Human Rights
			Foundations of Human Rights in the \'Western\' Tradition
			Sources of Human Rights in Islam
			\'Secular\' and \'Western\' versus \'Divine\' and \'Islamic\' Human Rights: A Clash of Traditions?
			Rights-based and Duty-based Human Rights: A Valid Distinction?
			Islam, Human Rights and Individualism
			Human Rights as Hierarchical Entitlements? Rights of White, Free, Male, Elite in the \'Western\' Tradition and Entitlements of Adult, Free, Male, Muslims in the Islamic
			Concluding Remarks
		3 Anti-Essentialism, Relativism, and Human Rights
			INTRODUCTION
			I. CULTURAL RELATNISM VS. UNIVERSALISM
			II. THE CHALLENGE OF FEMINIST ANTI-ESSENTIALISM
				A. Global Feminist Politics and the Appeal of Essentialism
				B. Anti-essentialism, Cultural Relativism, and Feminist Human Rights Activism
			III. UNPACKING THE LOGIC OF RELATIVISM
				A. Contingency Does Not Entail Radical Relativism
				B. Two Views on Culture and Coercion
					1. Cultural Relativism: Essentializing Culture, Obscuring Coercion
					2. Feminist Anti-Essentialism: Complicating Coercion
			IV. CULTURE AS A LENS ON GENDER
				A. Social Construction and the Problem of Agency
				B. The Risks and Rewards of Cross-Cultural Feminism
					1. Risks of Assuming Commonality
	Economic and Social Rights
		4 The Justiciability of Social and Economic Rights: An Updated Appraisal
			Abstract
			Introduction
			1. What is at Stake in the Justiciability Debate?
			2. Responding to the Primary Concerns about Justiciability of Social and Economic Rights
				2.1 Characterisation of differences between civil and political and social and economic rights
					(i) Civil and political rights impose negative obligations, while social and economic rights give rise to positive ones
					(ii) Resource Dependent Social and Economic Rights v. Costless Civil and Political Rights
					(iii) \'Vague\', social and economic rights vs. precise\' civil and political rights
					(iv) State inaction v. state action
				2.2 Legitimacy Concerns Regarding the Judicial Enforcement of Social and economic Rights
					i) Democratic Legitimacy
					ii) Separation of Powers
				2.3 Institutional Capacity of Courts to Adjudicate Economic and Social Rights
					(i) that the courts lack the information required to deal with social and economic rights
					(ii) that the judiciary lack the necessary expertise, qualification or experience to deal with social and economic rights issues
					(iii) that the courts are incapable of dealing successfully with \'polycentric\' tasks, such as those entailed by adjudication involving social and economic rights
					(iv) that the courts lack the necessary tools and remedies to deal effectively with social and economic rights
			3. Review of jurisprudence
				3.1 Adjudicating different types of obligations
				3.2 Defending the enjoyment of ESC Rights - The duties to \'respect\' and \'protect\' ESC rights
				3.3 Adjudicating the fulfilment of ESC rights: \'progressive realisation\' and other issues
					3.3.1 Equality rights and the duty to fulfil social and economic rights
					3.3.2 Ensuring concrete steps towards the realisation of ESC rights
					3.2.3 A step backwards–challenging retrogressive measures
			4. Conclusion
	Extraterritoriality
		5 The Scope of the Extra-Territorial Applicability of International Human Rights Law
			Introduction
				The absence of any extra-territorial applicability of international human rights law
				The assertions of the ICJ and the Special Procedures
			The exercise of jurisdiction
			Analysis of the case-law of the HRC and the ECtHRs on the extra-territorial applicability of human rights law
			Conclusion
PART II: APPLICATION TO URGENT SOCIAL ISSUES
	Terrorism
		6 Unilateral Exceptions to International Law: Systematic Legal Analysis and Critique of Doctrines that Seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight against Terrorism
			Abstract
			1. Introduction
			2. Terrorism and Related Notions
			3. Unilateral Exceptions to International Law and to Human Rights Norms
				3.1. Sources of International Law
				3.2. Typology of Exceptions to be Discussed
				3.3. Denial of the Applicability of Human Rights Law during Armed Conflict
				3.4. Denial of Status as Protected Persons under International Humanitarian Law
				3.5. The United Nations Charter as Lex Superior
				3.6. Denial of Attribution to an Individual State of Action by Intergovernmental Organisations
				3.7. Denial of Extraterritorial Effect of Human Rights (Treaties)
				3.8. Reservations to Treaties
				3.9. Persistent Objection to Custom
				3.10. Derogation during Times of Emergency and Necessity
					3.10.1. Derogation in the Proper Sense under Certain Human Rights Treaties
					3.10.2. Extension of Derogation Ex Analogia to Certain Persons (Terrorists)
					3.10.3. Necessity Defence Transformed into a Policy
				3.11. Overly Broad Use of Limitations or Restrictions
					3.11.1. Efforts to Extend Balancing to Absolute or Non-derogable Rights
					3.11.2. Proper Limitations Test as the Answer
				3.12. Withdrawal from Human Rights Treaties
				3.13. The Need for a Holistic Approach
			4. Conclusion
		7 Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Study on Targeted Killings
			Summary
			I. Introduction
			II. Background
				A. Definition of \"targeted killing\"
				B. New targeted killing policies
				C. New technology
			Ill. Legal issues
				A. The applicable legal frameworks and basic rules
				B. Sovereignty issues and States\' invocation of the right to self-defence
				C. The existence and scope of armed conflict
				D. Who may lawfully be targeted, when, and on what basis
				E. Who may conduct a targeted killing
				F. The use of less-than-lethal measures
				G. The use of drones for targeted killing
				H. The requirements of transparency and accountability
			IV. Conclusions and recommendations
	Impunity
		8 \'Settling Accounts\' Revisited: Reconciling Global Norms with Local Agency
			Abstract
			Introduction
			The Early Days: Combating Impunity
			\'Settling Accounts\'
			From an International to a Cross·Cultural Perspective
			Conclusion
		9 Immunities of State Officials, International Crimes and Foreign Domestic Courts
			Abstract
			1 Introduction
			2 Immunity of State Officials Ratione Personae (Immunity Attaching to an Office or Status)
				A The Scope of lmmunity Ratione Personae: Immunity from Criminal Process for International Crimes
				B Which Officials are Entitled to Immunity Ratione Personae?
			3 Immunity of State Officials Ratione Materiae (Immunity Attaching to Official Acts)
				A International Crimes as (Non-)Sovereign/(Non-)Official Acts
				B Immunity and Jus Cogens Violations- Addressing the Normative Hierarchy Theory
				C The ICJ\'s Obiter Dictum in the Arrest Warrant Case
				D The Relationship Between Immunity Ratione Materiae, Individual Criminal Responsibility, and Extra-Territorial Jurisdiction
				E Does International Law Permit the Exercise of Extra-Territorial Jurisdiction over International Crimes?
				F Diplomatic Immunity Ratione Materiae
			4 Conclusion
	Health
		10 Human Rights Approach to Public Health Policy
			Introduction
			Human Rights as Governmental Obligations
				The Right to Health
			The Emergence of a New Public Health
			HIV and Genesis of the Integration of Human Rights into Health Practice
			Human Rights and Health Policy in the New Millennium: Key Concepts
				Progressive Realization of Health-Related Human Rights
				Human Rights Limitations in the Interest of Public Health
			Public Health Policy and Nondiscrimination
			Public Health Policy and the Value of Health and Human Rights
				Context
				Outcome and Impact
				Process
			In Conclusion
			Citations
			Further Reading
	Climate Change
		11 Introduction: Human Rights and Climate Change
			Why the silence on human rights?
			Rights, needs, development and the state
			Rights language in the climate change debate to date
			Human rights and climate change adaptation
			The human rights dimensions of mitigation policies
			Human rights and climate change at the confluence of law, science, ethics and policy
			References
	Investment
		12 Human Rights and International Investment Arbitration
			I. Introduction
			II. Jurisdiction over Human Rights Issues
			Ill. Human Rights Law as Applicable Law
			IV. Corporate Social Responsibility
			V. Invocation of Human Rights in Arbitrations
				A. By the Investor
				B. By the Host State
				C. By Non-Party Actors
				D. By the Tribunal
			VI. Conclusion
PART III: APPLICATION TO NON-STATE ACTORS
	International Organizations
		13 The European Court of Justice and the International Legal Order after Kadi
			INTRODUCTION
			I. THE ROLE OF THE U.N. SECURITY COUNCIL AND THE DILEMMAS OF ACCOUNTABILITY IN INTERNATIONAL GOVERNANCE
			II. THE CASES
				A. Behrami before the European Court of Human Rights
				B. The Kadi/Al Barakaat Cases
					1. Facts and Background
					2. The CFI\'s Analysis
					3. The ECJ Judgment
			III. VARYING JUDICIAL CONCEPTIONS OF THE INTERNATIONAL LEGAL ORDER
			IV. PLURALIST VS. CONSTITUTIONALIST APPROACHES TO THE INTERNATIONAL LEGAL ORDER
				A. Contitutionalist Approches to International Law and Governance
			V. THE EU AS A \"GOOD INTERNATIONAL CITIZEN\" AFTER KADI?
			CONCLUSION
		14 WTO Dispute Settlement and Human Rights
			Abstract
			1 Introduction
			2 The \'Limited Jurisdiction\' of WTO Adjudicating Bodies and the \'WTO Applicable Law\'
				A The DSU will Attract Jurisdiction in Favour of WTO Adjudicating Bodies
				B The WTO Panels and the Appellate Body have a Delegated and Limited Jurisdiction
					1 The Mandate of Panels: To Determine Whether Provisions of the WTO \'Covered Agreements\' Have Been Violated: Articles 1, 4, 7 and 11 of the DSU
					2 Panels and the Appellate Body are Prohibited from Adding to or Diminishing the Rights and Obligations of the WTO Agreement
					3 Standard and Limited Conclusions by WTO Adjudicating Bodies
					4 The \'Implied Powers\' Resulting from the Obligation to Adjudicate WTO Disputes with Objectivity
					5 Panellists and Members of the Appellate Body are Mainly \'Trade\' Experts
				C The WTO Applicable Law: A Specific Subsystem of International Law
					1 Specific Rights and Obligations
					2 Specific Causes of Actions: Specific Claims
					3 Specific System of Enforcement
					4 Specific Remedies
					5 The Covered Agreements Cannot be Changed or Amended Without Using the WTO\'s Specific Procedures
					6 The WTO as a Single Agreement
				D Conclusion: The Limited \'Domain\' of WTO Law
			3 Taking into Account General International Law, including Human Rights Law, when Interpreting the WTO Applicable Law
				A Interpretations that will Avoid Conflicts with Members\' Relevant Human Rights Obligations
					1 Article 31(3)(c) of the Vienna Convention
						(a) \'Rules of international law\'
						(b) \'Applicable in the relations between the parties\'
						(c) \'Relevant rules of international law\'
					2 Evolutionary Interpretation
				B The Use of Human Rights Provisions in the Interpretation of WTO Provisions
					1 Examples of Suggestions of Human Rights Provisions that may be Relevant in the Interpretation of WTO Provisions
					2 Conclusion
				C The Normative and Flexible Nature of Certain Provisions of WTO and Human Rights Laws
			4 Irreconcilable Conflicts between WTO Provisions and Human Rights Law
				A Definition of a Conflict
				B Inconsistencies with Human Rights Provisions other than those of a Jus Cogens Nature
				C Conflicts with Obligations Jus Cogens
				D The Remaining State Responsibility of Members Violating a Human Rights Law
				E Conclusion
			5 The Overall \'Jurisdiction\' Issue Inherent to Human Rights Considerations in Trade-related Measures
				A The Issue of PPMs
				B Policy Considerations Not Directly Related to Specific Imports
				C The Issue of \'Jurisdiction\' in WTO Law
				D Overlaps/Conflicts of Jurisdictions
			6 Some Thoughts in Conclusion
	Armed Opposition Groups
		15 Human Rights Obligations of Non-State Actors in Conflict Situations
			Abstract
			Rebels, insurgents, and belligerents
			National liberation movements
			Rebel groups, unrecognized insurgents, armed opposition groups, or parties to an internal armed conflict
			Successful insurrectional and other movements
			Practical steps taken to ensure respect for human rights by non-state actors in times of armed conflict
			Private security firms
			Final remarks
	Corporations
		16 Taming the Leviathans: Multinational Enterprises and Human Rights
			1. INTRODUCTION
			2. HOLDING MNEs ACCOUNTABLE IN INTERNATIONAL HUMAN RIGHTS LAW
				2.1 International human rights law in the private sphere
				2.2 Regulation by host states
				2.3 Regulation by \'home\' states
					2.3.1 United Kingdom: overcoming forum non conveniens
					2.3.2 United States of America: the Alien Tort Claims Act
					2.3.3 Conclusion on home state regulation
				2.4 Direct international regulation of MNEs
				2.5 Proposals for reform to enhance MNE accountability
					2.5.1 Reform option 1: extension of horizontal application doctrine to home states
					2.5.2 Reform proposal 2: direct binding international regulation
					2.5.3 Relative merits of the two reform proposals
					2.5.4 Continued host state responsibilities
					2.5.5 Political will for reform
			3. SUBSTANTIVE HUMAN RIGHTS DUTIES FOR MNEs
				3.1 In what situations should MNEs be held personally liable for human rights abuse?
					3.1.1 Liability for engagement with abusive governments
					3.1.2 Vicarious liability
					3.1.3 Human rights abuses \'compelled\' by states
				3.2 What human rights norms should MNEs be required to respect?
					3.2.1 Labour rights
					3.2.2 Environmental rights
					3.2.3 Freedom from bodily harm
					3.2.4 Other rights: liberal dilemmas
			4. CONCLUDING REMARKS
		17 The Ruggie Rules: Applying Human Rights Law to Corporations
			1. Introduction
			2. The Application of Human Rights Law to Corporations: From Draft Norms to Guiding Principles
				2.1. The Draft Norms as a Restatement of Human Rights Law
				2.2. Rejecting the Norms in Favour of ... What?
			3. The Relationship Between Ruggie\'s Mandate and Other Legal Issues
				3.1. Are Corporations Bound Not to Commit International Crimes?
				3.2. Corporate Complicity in State Human Rights Violations
				3.3. The Extraterritorial Scope of States\' Duty to Protect Against Corporate Abuses of Human Rights
			4. Conclusion
PART IV: IMPLEMENTATION AND ENFORCEMENT
	Domestic Remedies
		18 Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations
			I. INTRODUCTION
			II. THE U.S. EXPERIENCE: WHY FILÁRTIGA WORKS IN THE UNITED STATES
				A. Filártiga and its Progeny
				B. Civil Litigation in the U.S. Legal System
					1. Subject Matter Jurisdiction, Personal Jurisdiction, and Choice of Law
					2. A Tradition of Public Interest and Impact Litigation
					3. Systematic Procedural Advantages
			III. A COMPARATIVE ANALYSIS: WHY FILÁRTIGA DOES NOT TRANSLATE LITERALLY
				A Civil/Criminal Links
				B. Barriers to Independent Civil Litigation
					1. Limits on Extraterritorial Jurisdiction
					2. Resistance to Litigation as a Tool of Policy Reform
					3. Procedural Hurdles to Civil Litigation
			IV. TRANSLATING FILÁRTIGA: A MULTINATIONAL APPROACH TO DOMESTIC 
REMEDIES
				A. Transnational Law Litigation: Contextualizing Filártiga
				B. Universal Jurisdiction over Transnational Law Litigation
					1. Universal Jurisdiction to Redress Human Rights Violations
					2. Dismantling the Criminal/Civil Divide
					3. The Right to Compensation for International Human Rights Violations
					4. Universal Jurisdiction Reexamined
				C. A New Convention: Preserving Civil Claims for Human Rights Abuses
			V. CONCLUSION
	Responsibility to Protect
		19 From Humanitarian Intervention to the Responsibility to Protect
			I. THE BIRTH OF A DOCTRINE
			II. THE EVOLUTION OF A DOCTRINE
			Ill. THE IMPLEMENTATION OF A DOCTRINE
				A. THE PROBLEM OF SECURITY COUNCIL BUY-IN
				B. THE PROBLEM OF FALSE FRIENDS
				C. THE PROBLEM OF CAPACITY
				D. THE PROBLEM OF POLITICAL WILL
		20 Responsibility to Protect: Political Rhetoric or Emerging Legal Norm?
			I. lNTERPRETIVE AND NORMATIVE DIVIDES: DIFFERENT BODIES, DIFFERENT MEANINGS
				The Approach of the Commission on State Sovereignty and Intervention
				The High-Level Panel Report
				The Report of the Secretary-General
				The Outcome Document of the 2005 World Summit
			II. TRADITION VS. INNOVATION
				Partly \"Old Wine in New Bottles\"
				Partly Progressive Development of the Law
			Ill. CONSTRUCTIONAL AMBIGUITIES
				The \"Complementarity Trap\"
				Implications of Inaction
			IV. CONCLUSION
				Proposition No. 1: The Host State Has a Duty to Protect Citizens on Its Territory
				Proposition No. 2: States Failing the Duty to Protect Have a Weak Sovereignty Defense
				Proposition No. 3: Foreign Entities May Intervene Nonforcibly
				Proposition No. 4: Foreign States May Intervene Forcibly
				Proposition No. 5: Foreign Entities Have a Positive Duty to Act
PART V: PROPOSALS FOR NEW HUMAN RIGHTS
	Development
		21 On the Theory and Practice of the Right to Development
			I. THE RIGHT TO DEVELOPMENT IN THEORY
				A. Definition and Content of the Right to Development
					1. The Right to Development as a Human Right
					2. Content of the Right to Development
					3. The Right to Development as the Right to a Process of Development
					4. Duties and Obligations
				B. Controversies Regarding the Right to Development
					1. Human Rights as Natural Rights
					2. Justiciability
					3. Monitoring of Implementation
					4. Collective Rights vs. Individual Rights
					5. Resource Constraints
					6. Interdependence of Rights and the Process of Development
					7. Value Added of the Right to Development as a Process
			II. THE RIGHT TO DEVELOPMENT IN PRACTICE
				A. International Cooperation
					1. Development Assistance
					2. Development Compacts
				B. Elements for a Program to Implement the Right to Development
					1. Illustrative Elements of a Program
					2. Importance of Economic Growth
	Poverty
		22 Severe Poverty as a Human Rights Violation
			1.1. FACTORS IN THE CAUSAL EXPLANATION OF SEVERE POVERTY
				1.1.1. Causes of Type One: Acts (Interactional Harms)
				1.1.2. \'Causes\' of Type Two: Omissions (Interactional Failures to Alleviate)
				1.1.3. Causes of Type Three: Social Institutions
			1.2. HOW FEATURES OF THE PRESENT GLOBAL ORDER CAUSE MASSIVE SEVERE POVERTY
				1.2.1. The Purely Domestic Poverty Thesis
				1.2.2. The Panglossian View of the Present Global Order
				1.2.3. Is the Present Global Order Merely Less Beneficial Than It Might Be?
					1.2.3.1. Invoking Baseline Comparisons
					1.2.3.2. Invoking the Consent of the Global Poor
					1.2.3.3. Invoking the Flaws of the Poor Countries\' Social Institutions and Rulers
				1.2.4. Conclusion
			Bibliography
	Environment
		23 Human Rights and the Environment: Where Next?
			Abstract
			1 Is the Environment a Human Rights Issue?
			2 Environmental Rights and the UN Human Rights Institutions
			3 The Development of Procedural Rights in an Environmental Context
			4 A Right to a Decent Environment?
			5 Human Rights, Transboundary Pollution and Climate Change
			6 Conclusions
Name Index