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TEXTS AND MATERIALS ON INTERNATIONAL HUMAN RIGHTS THIRD EDITION RHONA K M SMITH Texts and Materials on International Human Rights THIRD EDITION Texts and Materials on International Human Rights offers a carefully tailored overview of the subject that covers sources and theories, institutions and structures, and substantive rights The third edition is fully updated to include all key developments in the law, in particular issues around reform in the UN and the topical application of human rights around the world This collection of materials offers a comprehensive overview of the institutional structures relevant to international human rights law, crucial to the understanding of how law works in this challenging area Designed to guide students through the fundamental texts for this subject, the author’s commentary contextualises each extract to explain its relevance, while highlighted further reading makes links to cutting edge academic commentary to provide next steps for student research Offering a clear text design that distinguishes between materials and author commentary, and including reflective questions throughout to aid understanding, this book is ideal for students seeking to engage with the key issues in the study of International Human Rights Rhona K.M Smith is Professor of International Human Rights at Northumbria University This page intentionally left blank Texts and Materials on International Human Rights THIRD EDITION Rhona K.M Smith Third edition published 2013 by Routledge Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2013 Rhona K.M Smith The right of Rhona K.M Smith to be identified as author of this work has been asserted by her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988 Every effort has been made to request permission to reproduce material under copyright If any material has been inadvertently overlooked, the publishers will endeavour to make the necessary arrangements 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 Previous editions published by Routledge First edition 2007 Second edition 2010 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloguing in Publication Data A catalog record for this book has been requested ISBN 13: 978–0–415–62190–8 (hbk) ISBN 13: 978–0–415–54068–1 (pbk) ISBN 13: 978–0–203–41005–9 (ebk) Typeset in Joanna MT by Refinecatch Ltd, Bungay, Suffolk Outline Contents Preface Table of Cases Table of Legislation Table of Treaties and Instruments x xiii xix xxiii 10 11 12 13 14 28 59 92 141 182 227 258 300 341 376 429 475 518 Index Sources of International Human Rights Key Concepts: Universality, Interdependence and Categories of Rights States and Treaty Obligations Human Rights Organisations and Key Institutions Monitoring and Enforcing Human Rights: Extra-Conventional Mechanisms Implementing Human Rights Treaties: Committees and Courts National Institutions for Protecting and Promoting Human Rights Extending the Duties to Protect and Respect Human Rights: Non-State Actors Reforming the International and Regional Human Rights Systems Protecting Children Detainees, Prisoners and Convicts Indigenous Peoples and their Rights The Protection of Refugees, Stateless Persons and Internally Displaced People Protecting and Promoting the Rights of Women 566 This page intentionally left blank Detailed Contents Preface Table of Cases Table of Legislation Table of Treaties and Instruments x xiii xix xxiii Sources of International Human Rights 1.1 Treaties 1.2 Customary International Law 1.3 Other International and Regional Instruments 1.4 A Practical Guide to Sources 12 16 22 Key Concepts: Universality, Interdependence and Categories of Rights 2.1 Universality 2.2 Cultural Sensitivity 2.3 Positive Obligations on States to Conform to Human Rights 2.4 Indivisibility and Interdependence, or A Hierarchy of Rights? 2.5 Interdependence and Indivisibility 2.6 Evolving and Developing Rights 28 29 39 51 55 56 58 States and Treaty Obligations 3.1 “Universal Human Rights” and Ratification 3.2 Limitations on State Compliance: Reservations, Declarations, Derogations and Denunciations 3.3 Reservations 3.4 Declarations 3.5 Derogations 3.6 Denunciations 59 60 Human Rights Organisations and Key Institutions 4.1 International Organisations 4.2 The United Nations 4.3 International Courts 4.4 The International Labour Organisation 4.5 Regional Organisations 4.6 Europe 4.7 The Americas 4.8 Africa 4.9 Others 64 64 75 78 87 92 93 93 108 113 116 117 135 136 136 viii | DETAILED CONTENTS Monitoring and Enforcing Human Rights: Extra-Conventional Mechanisms 5.1 Human Rights Council 5.2 The United Nations Educational, Scientific and Cultural Organisation (UNESCO) 5.3 United Nations Security Council, Responsibility to Protect, and Sanctions 5.4 International Criminal Courts, Tribunals and Processes 5.5 Organisation of American States Inter-American Commission on Human Rights 141 143 Implementing Human Rights Treaties: Committees and Courts 6.1 United Nations Treaty Monitoring Bodies: Conventional Mechanisms 6.2 Regional Systems: Creating Judicial Mechanisms 6.3 Remedies for Individuals 182 183 211 219 National Institutions for Protecting and Promoting Human Rights 7.1 States and International (Human Rights) Law 7.2 The International Approach to National Institutions 7.3 The Regional Position on National Institutions 7.4 Nature of National Institutions 7.5 Examples of National Institutions 7.6 Children’s Commissioners – A Special Case? 227 229 236 245 246 246 250 Extending the Duties to Protect and Respect Human Rights: Non-State Actors 8.1 Human Rights Education and Training 8.2 Non-Governmental Organisations 8.3 Business and Multinational Corporations 8.4 Educators, Lawyers and Individuals 258 259 261 269 292 Reforming the International and Regional Human Rights Systems 9.1 The Bigger Picture – Human Rights and United Nations Reform 9.2 The Human Rights Council – Review Process 9.3 Towards Universal Ratification of Key Instruments 9.4 Dissemination and Technology 9.5 Regional Reforms 300 302 332 334 334 337 10 Protecting Children 10.1 Children as Humans 10.2 Tabulating Children’s Rights 10.3 The United Nations Convention on The Rights of The Child 10.4 Governing Principles 10.5 Regional Instruments 341 342 349 353 355 373 11 Detainees, Prisoners and Convicts 11.1 Equality Before the Law 11.2 Arrest 11.3 Disappearances 11.4 Detention Pending Trial 11.5 Torture and the Use of Force 376 377 380 382 394 398 158 163 168 177 DETAILED CONTENTS 11.6 11.7 11.8 11.9 Fair Trial Detention After Conviction Juveniles in Detention and Court Capital Punishment 12 Indigenous Peoples and their Rights 12.1 Towards Recognition of Indigenous Rights 12.2 Invoking Minority Rights 12.3 The Scope of ‘Indigenous People’ 12.4 Rights Claimed by Indigenous People 12.5 The Right to Self-Determination 12.6 Land Rights 12.7 Cultural Rights 13 The Protection of Refugees, Stateless Persons and Internally Displaced People 13.1 Who is a Refugee? 13.2 Procedures for Determining Refugee Status 13.3 Termination of Refugee Status 13.4 Regional Instruments and Criteria for Determining Refugee Status and Addressing Refugee Rights 13.5 Rights of Refugees 13.6 Granting Asylum to Refugees and Others 13.7 Internally Displaced Persons 13.8 High Commissioner for Refugees 13.9 Stateless Persons 14 Index Protecting and Promoting the Rights of Women 14.1 Leading the Way: The International Labour Organisation 14.2 Equality 14.3 Tabulating Women’s Rights 14.4 Protection from Persecution: Trafficking, Exploitation 14.5 Violence Against Women 14.6 Family Rights: Marriage and Children 14.7 Regional Instruments and Approaches to Women’s Rights | ix 401 413 418 423 429 430 433 448 450 450 458 472 475 477 483 488 493 497 505 506 507 509 518 519 521 536 538 543 557 562 566 562 | PROTECTING AND PROMOTING THE RIGHTS OF WOMEN pregnancy endangers the mental and physical health of the mother or the life of the mother or the foetus Admittedly the right is somewhat qualified by the circumstances in which such a medical abortion is justified It is not a freedom of reproductive choice for women However, women have the right to control their fertility, to choose any method of contraception and to decide on the number and spacing of any children they wish to have These provisions are in themselves quite novel and may be viewed as significantly empowering for women Question Can Article 14(c) of the African Protocol be reconciled with the rights of the child, another major issue of concern in Africa? Interestingly human rights in terms of the Inter-American instrument commences at birth (Article 4(1) American Convention on Human Rights) Can the apparent differences between these regional instruments be explained in cultural terms? 14.7 Regional Instruments and Approaches to Women’s Rights Within Europe, the European Union has been most proactive in fostering an environment in which women’s rights in the workplace can be protected and promoted A number of prominent decisions of the European Court of Justice have contributed significantly to the law in this area All European Union cases can be accessed through the website of the European Court of Justice: (www curia.eu.int) Note also that due to the nature of the European Union and the principles of direct effect and direct applicability, a number of prominent decisions on this area have also been taken by the national courts of the various Member States The European Court of Human Rights, Council of Europe, however found a violation of the right to family life when a mother was prevented from having a home birth due to the threat of legal proceedings against the midwife–Ternovszky Hungary Application 67545/09, 14 December 2010 14.7.1 Africa Ternovszky The most progressive instrument on women’s rights is undoubtedly the most recent: the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa The Protocol was adopted by the second ordinary session of the Assembly of the Union at Maputo in July 2003 and, as such, is one of the first human rights instruments to be adopted by the new African Union The range of rights enshrined therein is remarkable Given the interrelationship of economic, social, civil, political and cultural rights which characterised the African Charter on Human and Peoples’ Rights, it is perhaps not surprising that the Protocol on Women’s Rights is one of the most comprehensive instruments in the area hence being extracted above While arguably reflecting a truly African view of rights, the influence of the Beijing Platform for Action appears to permeate throughout Many of the rights reflect universal rights: non-discrimination, rights to life, integrity and security of person, prohibition on exploitation and cruel, inhuman or degrading treatment or punishment, access to justice and equal protection before the law, political participation, education and training, adequate housing, food, culture The right to a healthy and sustainable environment is also included The following rights of particular interest appear in the instrument: REGIONAL INSTRUMENTS AND APPROACHES TO WOMEN’S RIGHTS Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa 2000 Article Right to Dignity Every woman shall have the right to dignity inherent in a human being and to the recognition and protection of her human and legal rights; Every woman shall have the right to respect as a person and to the free development of her personality; States Parties shall adopt and implement appropriate measures to prohibit any exploitation or degradation of women; States Parties shall adopt and implement appropriate measures to ensure the protection of every woman’s right to respect for her dignity and protection of women from all forms of violence, particularly sexual and verbal violence Article Elimination of Harmful Practices States Parties shall prohibit and condemn all forms of harmful practices which negatively affect the human rights of women and which are contrary to recognised international standards States Parties shall take all necessary legislative and other measures to eliminate such practices, including: a) b) c) d) creation of public awareness in all sectors of society regarding harmful practices through information, formal and informal education and outreach programmes; prohibition, through legislative measures backed by sanctions, of all forms of female genital mutilation, scarification, medicalisation and para-medicalisation of female genital mutilation and all other practices in order to eradicate them; provision of necessary support to victims of harmful practices through basic services such as health services, legal and judicial support, emotional and psychological counselling as well as vocational training to make them self-supporting; protection of women who are at risk of being subjected to harmful practices or all other forms of violence, abuse and intolerance Article 10 Right to Peace Women have the right to a peaceful existence and the right to participate in the promotion and maintenance of peace States Parties shall take all appropriate measures to ensure the increased participation of women: a) b) c) d) e) in programmes of education for peace and a culture of peace; in the structures and processes for conflict prevention, management and resolution at local, national, regional, continental and international levels; in the local, national, regional, continental and international decision making structures to ensure physical, psychological, social and legal protection of asylum seekers, refugees, returnees and displaced persons, in particular women; in all levels of the structures established for the management of camps and settlements for asylum seekers, refugees, returnees and displaced persons, in particular, women; in all aspects of planning, formulation and implementation of post conflict reconstruction and rehabilitation | 563 564 | PROTECTING AND PROMOTING THE RIGHTS OF WOMEN States Parties shall take the necessary measures to reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular Article 13 Economic and Social Welfare Rights States Parties shall adopt and enforce legislative and other measures to guarantee women equal opportunities in work and career advancement and other economic opportunities In this respect, they shall: a) b) c) promote equality of access to employment; promote the right to equal remuneration for jobs of equal value for women and men; ensure transparency in recruitment, promotion and dismissal of women and combat and punish sexual harassment in the workplace; d) guarantee women the freedom to choose their occupation, and protect them from exploitation by their employers violating and exploiting their fundamental rights as recognised and guaranteed by conventions, laws and regulations in force; e) create conditions to promote and support the occupations and economic activities of women, in particular, within the informal sector; f) establish a system of protection and social insurance for women working in the informal sector and sensitise them to adhere to it; g) introduce a minimum age for work and prohibit the employment of children below that age, and prohibit, combat and punish all forms of exploitation of children, especially the girl-child; h) take the necessary measures to recognise the economic value of the work of women in the home; i) guarantee adequate and paid pre- and post-natal maternity leave in both the private and public sectors; j) ensure the equal application of taxation laws to women and men; k) recognise and enforce the right of salaried women to the same allowances and entitlements as those granted to salaried men for their spouses and children; l) recognise that both parents bear the primary responsibility for the upbringing and development of children and that this is a social function for which the State and the private sector have secondary responsibility; m) take effective legislative and administrative measures to prevent the exploitation and abuse of women in advertising and pornography Another unusual feature is specific protection of certain women Widows, the elderly, women with disabilities and women in distress are singled out – see Articles 20, 22–4 Question To what extent is the realisation of these rights a reasonable aspiration within the African region? What purpose does the adoption of such a wide-ranging instrument serve? Further Reading Amirthalingm, K., ‘Women’s Rights, International Norms, and Domestic Violence: Asian Perspective’, 2005, 27 Human Rights Quarterly 653 Askin, K., and Koenig, D., Women and International Human Rights Law, 1999–2000, New York: Transnational Press WEBSITES Banda, F., ‘Blazing a trail: the African Protocol on Women’s rights comes into force’, 2006, Journal of African Law 72 Bayefsky, A., ‘The Principle of Equality or Non-Discrimination in International Law’, 1990, 11 Human Rights Law Journal Benedek, W., Kisaakye, M., and Oberleitner, G (eds), The Human Rights of Women: International Instruments and African Experiences, 2002, New York: Zed Books Byrnes, A., ‘The Committee on the Elimination of Discrimination Against Women’ in Alston, P (ed.), The United Nations and Human Rights: A Critical Appraisal, 1992, Oxford: Clarendon Charlesworth, H., ‘Not Waving but Drowning: Gender Mainstreaming and Human Rights in the United Nations’, 2001, 18 Harvard Human Rights Journal Charlesworth, H., Chinkin, C., and Wright, K., ‘Feminist approaches to International Law’, 1991, 85 American Journal of International Law 613 Clark, B., ‘The Vienna Convention Reservations Regime and the Convention on Discrimination against Women’, 1991, 85 American Journal of International Law 281 Cook, R., ‘Women’s International Human Rights Law: the way forward’, 1993, 15 Human Rights Quarterly 230 Cook, R (ed.), Human Rights of Women, national and international perspectives, 1994, Philadelphia: University of Pennsylvania Press Emerton, R., Adams, K., Byrnes, A., and Connors, J., International Women’s Rights Cases, 2005, London: Cavendish Publishing Jalal, P I., Law for Pacific Women: a legal rights handbook, 1998, Suva, Fiji: Women’s Rights Movement Landau, E., From ILO Standards to EU Law: the case of equality of men and women at work, 2008, The Hague: Hotei MacKinnon, C., Are Women Human? and other international dialogues, 2007, Boston: Harvard University Press McColgan, A., Equality and Discrimination, 2013, Oxford: Hart (forthcoming) Reanda, L., ‘The Commission on the Status of Women’ in Alston, P (ed.), The United Nations and Human Rights: A critical appraisal, 1992, Oxford: OUP Reanda, L., ‘Human Rights and Women’s Rights: the UN approach’, 1981, Human Rights Quarterly 11 Tomasevski, K., Women and Human Rights, 1993, London: Zed Books Van Leeuwen, F., Women’s Rights Are Human Rights: The Practice of the United Nations Human Rights Committee and the Committee on Economic, Social and Cultural Rights, 2009, Intersentia Websites www.unwomen.org: United Nations Entity for Gender equality and the Empowerment of Women www.un.org/womenwatch/: United Nations Inter-Agency Network on Women and Gender equality www.un.org/womenwatch/daw/: United Nations Division for the Advancement of Women www.un.org/womenwatch/daw/cedaw/: website for the Convention on the Elimination of All Forms of Discrimination against Women It also contains relevant information and associated documents on the Committee which monitors the Convention www.un.org/womenwatch/daw/csw/: United Nations Commission on the Status of Women www.interpol.int/Public/THB/Women/Default.asp: Interpol website on trafficking in women www.catwinternational.org/: NGO Coalition against Trafficking in Women www.law-lib.utoronto ca/diana: the University of Toronto’s Women’s Human Rights Resources Database, part of its DIANA project www.womenslinkworldwide.org: Women’s Link Worldwide Network website | 565 Index A Abduction of children 363–4 Abebe, Allehone Mulugeta 144 Aboriginal people see Indigenous peoples Abortion 561–2 Academic commentaries 25 Access to court 404–8 Accessibility of information technology and 334–6 Accused person, trial of see Trial Ad hoc international criminal tribunals 168–9 Adoption of children 362–3 Affirmative action 530–4 African Commission on Human and Peoples’ Rights 177, 204, 217–19 African Court of Human and Peoples’ Rights 177 African Court of Human and Peoples’ Rights 219 African Court of Justice 177, 219 African Union 136, 339 Agenda 21 272 Aliens refugees as 499–500 Alston, Philip 61–2, 63, 94, 308, 309, 310, 311, 315, 316, 323, 324, 325, 326 Amnesty International 262–3 Andean Indian Programme 432 Annan, Kofi 32, 98–9, 102, 117, 243, 271, 302, 304, 305, 308, 311–13 Arab League 137 Arbitrary detention 156–8 Arbour, Louise 306 Arrest 380–2 International Criminal Court arrest warrants 176–7 recording detainees 382 use of force 399–400 Association freedom of 284–5 Association of South-East Asian Nations (ASEAN) 137–9, 339–40 Asylum 505–6 Australia indigenous peoples 401, 453–4, 458, 464–8 refugees in 480–2 Autonomy indigenous peoples 453–7 B Bahrain 268 Ban Ki-Moon 302, 304, 305, 307, 347 Bangladesh state institutions 248–50 Bayefsky, Anne F 61, 301, 304, 316, 324, 327–9 Bennett, Gordon 448 Bribery UN Global Compact (1999) and 272 Brownlie, Ian 36 Businesses and corporations 269–91, 288 case study: Doe v Unocal case 288–90 case study: Shell in Nigeria 290–1 multinational corporations 269 OECD Guidelines 275–8 UN Global Compact (1999) 271–8, 288 UN guiding principles on business and human rights 269–71 C Cambodia mixed tribunal in 174 Canada indigenous peoples 319–20, 434–8, 455–7, 468–9 overlapping UN Treaty obligations 319–20 Capital punishment 90–1, 423–7 abolition 426–7 ‘death row phenomenon’ 51–4, 425–6 Case law 24 Children 38, 63–4, 342 INDEX abduction 363–4 adoption 362–3 African Charter on the Rights and Welfare of the Child 374 best interests of the child 356 child labour 282–4, 370–3 Children’s Commissioners 250–6 case study: Norway 253–6 corporal punishment 18–21, 54, 266 in criminal justice system 368, 418–23 case study: child killers 420–3 cultural sensitivity and 41 definition of ’child’ 354–5 education right 293–7 family rights 361–3, 560–1 health issues 347, 348 as human beings 342–4 participation in decision-making 357–9 protection from harm 364–9 reason for separate rights 343–7 refugees 485, 491–2 safe environment and basic needs 359–64 secondary violation of rights 348–9 tabulation of children’s rights 349–53 UN Convention on the Rights of the Child 353–73 China 76, 144 Chinkin, Christine 73 Circumcision female 42 Civil partnerships 557 Cold war 55 Collective bargaining 284, 285 Commission on the Status of Women 100–2 Committee Against Torture (UN) 196, 203, 208–11 Committee on Economic, Social and Cultural Rights (UN) 187–8, 205, 220–1, 235 Committee on the Elimination of Discrimination against Women (UN) 189, 203–4, 205 Committee on the Elimination of Racial Discrimination (UN) 193–4, 195–6, 220, 267 Committee on the Rights of the Child 189 Commonwealth of Independent States 136–7 Compensation indigenous peoples’ land rights and 470–2 Conflict situations derogations from treaties and 78–83 detention pending trial for terrorist suspects 396–8 genocide 163 refugees in 502–5 Consumerism 297 Convicts see Prisoners Corporal punishment of children 18–21, 54, 266 Corporations see Businesses and corporations Corruption UN Global Compact (1999) and 272 Côte d’Ivoire 195 Council of Europe 117–23, 246, 337 Crawford, J 451 Criminal law 51, 54, 135 ad hoc international criminal tribunals 168–9 children and 368, 418–23 case study: child killers 420–3 equality before the law 377–9 fair trial right 401–13 access to court 404–8 independent and fair judiciary 408–11 trial in absentia 412–13 genocide 163 International Criminal Court 111–13, 174–7 arrest warrants 176–7 mixed courts and tribunals 170–4 Cultural genocide 473 Cultural rights indigenous peoples 457, 472–4 Cultural sensitivity 39–50 celebrating cultural diversity 40–1 reconciling traditional culture with human rights 41–2 regional organisations and 43 Africa 46–9 Americas 49–50 Europe 43–6 reservations/declarations from treaties and 50 Customary international law 12–16 altering and rejecting emergent customs 13 case study: UN Convention on the Rights of the Child 14–15 jus cogens 15–16 torture/slavery and 13–14 Cyprus disappearances in 392–4 | 567 568 | INDEX D Death penalty see Capital punishment Deaths in custody 401 Declarations on treaties 6, 75–8 case study 76–8 cultural sensitivity and 50 as reservations 76 Decolonisation 16 Denunciation of treaties 87–91 case study 90–1 individual petitions and 89–90 regional treaties 89 terminating treaty obligations 87–8 UN human rights treaties 88–9, 90–1 Deportation ‘death row phenomenon’ and 51–4, 425 Derogations from treaties 78–87 case study: UK 80–3 European Court of Human Rights and 85–7 examples of derogation clauses 78–9, 80 Human Rights Committee and 79, 83–5 non-derogable provisions 83–5 Detention 377 arbitrary 156–8 disappearance of detainees see Disappearances pending trial 394–8 recording detainees 382 Dickson, B 244 Disappearances 382–94 Americas 388–9 case study: Honduras 390–2 Cyprus 392–4 duty to investigate 383–8 extraordinary rendition 386–8 international prohibition 383 Displaced people 476–7, 506–7 Dissemination of information technology and 334–6 Divorce 560 Djibouti reservations from treaties and 74 Domestic violence see Violence against women Drugs children and 367 Dualist approach 229–30 E East Timor Special Panels 173–4 Economic and Social Council of the UN (ECOSOC) 98–102, 138–9 Committee on Economic, Social and Cultural Rights 187–8, 205, 220–1, 235 Economic development indigenous peoples’ land rights and 469–70 Education 293–7 higher education 296 in human rights 259–61, 292, 297, 336 refugees 501 Egypt reservations from treaties and 73 Emergency situations derogations from treaties and 78–83 terrorism detention pending trial and 396–8 see also Conflict situations Employment equality in 286–7 maternity protection 520–1, 527–8 refugees 500–2 Environmental issues UN Global Compact (1999) and 272 Equality before the law 377–9 in employment 286–7 non-discrimination principle 33, 522–3 refugees 500–2 women 521–36 affirmative action/positive discrimination 530–4 case study: women and political participation 534–6 litigating the right 523–8 non-discrimination principle 522–3 towards equality of rights between men and women 529–30 European Commissioner on Human Rights 120–1 European Court of Human Rights 118, 177, 211–13 derogations from treaties and 85–7 reform proposals 337–9 European Network of Ombudsmen for Children (ENOC) 253 European Social Committee 121–3 European Torture Committee 210, 213–14 European Union 131–2 INDEX accession to European Convention on Human Rights 339 Fundamental Rights Agency 133–5 refugees in 483–5 women’s rights and 521, 527–8, 531–4, 562 Evolving and developing rights 58 Extradition ‘death row phenomenon’ and 51–4, 425 Extraordinary rendition 386–8 F Fair trial right 401–13 access to court 404–8 independent and fair judiciary 408–11 trial in absentia 412–13 Family rights 361–3, 557–62 marriage 557–60 consent 559–60 divorce and remarriage 560 minimum age 559 reproductive rights 560–2 right to marry 557–60 Force, use of on arrest 399–400 Forced labour 279–82 France refugees in 492–3 reservations/declarations from treaties and 75, 76, 77–8 G General Assembly of the UN 96–7 Declarations 16–17 Genocide 14, 163 cultural 473 reservations to Genocide Convention 65–6 Gil-Robles, Alvaro 119 Global Compact (1999) 271–8, 288 Globalisation 269, 288 Goodman, R 94 Greece 89, 214 Group rights 37–9 Guyana denunciation of treaties by 90–1 racial discrimination in 267 H Hammarberg, T 252, 353, 357 Health issues children 347, 348 Hierarchy of rights 55 High Commissioner for Human Rights 188–9, 190, 244 reform proposals 305–7 High Commissioner for National Minorities 129–31 High Commissioner for Refugees 476, 507–9 Higher education 296 Homosexual people marriage/civil partnerships 557 Honduras disappearances in 390–2 Human Rights Committee of the UN 184, 186, 189, 200 derogations from treaties and 79 General Comments 205–8, 234–5 reservations from treaties and 67–70 Human Rights Council of the UN 102–8, 142, 143–58 complaint procedure 148–52 enhancing accessibility and dissemination 335 reform proposals 307–23, 332–3 special sessions 152–3 thematic and country rapporteurs 154–8 universal periodic review 143–7, 267–8 Hungary violence against women in 547–9 I Implementation of human rights law 135 Inter-American Commission on Human Rights 177–80 international courts and tribunals 168–77 ad hoc international criminal tribunals 168–9 International Criminal Court 174–7 mixed courts and tribunals 170–4 non-governmental organisations (NGOs) and 268–9 regional systems 211–19 African Commission and Court of Human and Peoples’ Rights 217–19 European Court of Human Rights 211–13 European Torture Committee 210, 213–14 Inter-American Court and Commission of Human Rights 214–17 overlap of regional and international systems 320–3 remedies for individuals 219–25 | 569 570 | INDEX UN Human Rights Council and 142, 143–58 complaint procedure 148–52 enhancing accessibility and dissemination 335 special sessions 152–3 thematic and country rapporteurs 154–8 universal periodic review 143–7, 267–8 UN Security Council and 135, 163–8 UN Treaty Monitoring Bodies 183–211 administrative, secretarial and research support 188–9 creation of committees 184–8 delays/non-submission of reports 323–7 enhancing accessibility and dissemination 335–6 follow-up mechanisms to ensure compliance 327–32 General Comments 205–8, 234–5 Human Rights Council and 333 independent enquiries by committees 203–5 individual communications 199–203 inter-state complaints 196–9 non-governmental organisations (NGOs) and 267 on-site visits 208–11 overlapping obligations and coexistence of monitoring systems 314–23 powers of committees 189 reform proposals 307–23 reports by states 189–96, 312–14, 323–7 UNESCO and 135, 158–63 Indigenous peoples 430 Australia 401, 453–4, 458, 464–8 autonomy for 453–7 Canada 319–20, 434–8, 455–7, 468–9 cultural rights 457, 472–4 definition of ‘indigenous people’ 448–50 International Decade of the World’s Indigenous People 444–7 invoking minority rights 433–48 land rights 458–72 case study: New Zealand 462–4 conflicting land rights 462 establishing native title 464–9, 472 natural resources and development 469–70 restitution or compensation 470–2 language rights 440–2 New Zealand 439–40, 458, 462–4 regional initiatives 444, 447–8 religious rights 442–4 self-determination right 450–7 Sweden 438–9 towards recognition of rights of 430–3 United States of America 470–2 Individuals duties to protect and respect human rights 292 implementation of human rights law and 219–25 individual petitions and denunciation of treaties 89–90 recognition as person before the law 377–8 United Nations Treaty Monitoring Bodies and communication with 199–203 Indivisibility and interdependence of rights 55–7 Inter-American Commission on Human Rights 135–6, 177–80, 214–17 Inter-American Court of Human Rights 214–17 Internally displaced people 476–7, 506–7 International Court of Justice (ICJ) 16, 108–11, 198 reservations from treaties and 65–6, 68–9 International Criminal Court 111–13, 174–7 arrest warrants 176–7 International Labour Organisation (ILO) 113–16, 278–87, 370–2 indigenous peoples’ rights and 430–3 women’s rights and 519–21 International organisations 93 regional 116–17 see also individual organisations Iraq 174 sanctions on 166–8 Ireland reservations from treaties and 74 Islam 50 J Jamaica denunciation of treaties by 90 Jennings, Ivor 451 Jordan reservations from treaties and 75, 76 Judiciary INDEX appointment and termination 411 independent and fair 408–11 Jurisprudence case law 24 interpretative and guiding comments 23 NGOs’ and other bodies’ reports 25 as source of international human rights 17–18, 23–5 case study: corporal punishment of children 18–21 Treaty Monitoring Bodies reports 23–4 virtual libraries 24–5 Jus cogens 15–16 K Kpuinen, John 291 Kuwait reservations from treaties and 75 L Labour issues child labour 282–4, 370–3 equality in employment 286–7 forced labour 279–82 freedom of association 284–5 International Labour Organisation (ILO) 113–16, 278–87 migrant workers rights of 38–9 refugees 500–2 UN Global Compact (1999) and 271–2 women’s rights and 519–21 Land rights indigenous peoples 458–72 case study: New Zealand 462–4 conflicting land rights 462 establishing native title 464–9, 472 natural resources and development 469–70 restitution or compensation 470–2 Language rights 440–2 Law equality before the law 377–9 Law enforcement officials arrest 380–2 International Criminal Court arrest warrants 176–7 use of force 399–400 duties to protect and respect human rights 292 Lawyers access to legal advice 407 duties to protect and respect human rights 292–3 League of Nations minority protection and 34–6 Leiris, Michael 473 Leone, Alexander 388 Libya 164–6 Life, right to 2, 56–7 Life expectancy 346 Lindboe, Anne 253 M Mansell, Michael 452 Marriage 557–60 consent 559–60 divorce and remarriage 560 minimum age 559 reproductive rights 560–2 right to marry 557–60 Martinez-Cobo, Jose 449 Maternity protection 520–1, 527–8 Mauritius women’s rights in 526–7 Migrant workers rights of 38–9 Military children in 355, 369 see also Conflict situations Millennium Development Goals 347, 519 Minority protection 33–7, 433–48 see also Indigenous peoples Mixed courts and tribunals 170–4 Monist approach 229 Multinational corporations 269 OECD Guidelines 275–8 Murder case study: child killers 420–3 Myanmar Unocal operations in 288–90 N Namibia 137–8, 148 Nationality stateless people 476–7, 509–17 Nations see States Native peoples see Indigenous peoples Natural resources indigenous peoples’ land rights and 469–70 Netherlands denunciation of treaties and 91 | 571 572 | INDEX New Zealand indigenous peoples 439–40, 458, 462–4 Nigeria Shell in 290–1 Non-derogable rights and freedoms 83–5 Non-discrimination principle 33, 378, 522–3 Non-governmental organisations (NGOs) 25, 261–9 case study: Amnesty International 262–3 contribution to human rights 263–9 contributing to international standardsetting 266 contributing to work of treaty monitoring bodies 267 generating awareness of human rights 266 prompting implementation of human rights 268–9 universal periodic review and 267–8 definitions 262 examples 262 UN Global Compact (1999) and 274–5 Northern Ireland state institutions 247–8 Norway 245 Children’s Commissioners in 253–6 reservations from treaties and 74 Nowak, M 125, 295–6 O Ombudsmen Children’s Commissioners 250–6 case study: Norway 253–6 Opinio juris customary international law and 12, 13 Organisation for Economic Cooperation and Development (OECD) 275–8 Organisation for Security and Cooperation in Europe 123–31, 177 Organisation of American States 135–6 P Pacta sunt servanda Paris Principles on national institutions 237, 238–40, 241–3, 245, 246 Pay equal 287 Peremptory norms (jus cogens) 15–16 Personhood recognition as person before the law 377–8 Peru women’s rights in 525–6 Philippines detention pending trial 395–6 Philosophy Pillay, Navanethem 301, 307–8, 309, 313, 317, 327, 330–2, 336 Political participation women 534–6 Positive discrimination 530–4 Positive obligations to conform to human rights 51–5 Pregnancy abortion 561–2 maternity protection 520–1, 527–8 Prisoners 377, 413–18 abuse see Torture deaths in custody 401 detention pending trial 394–8 Protocols to treaties 8–9 R Racial discrimination 37, 137–8, 267 Committee on the Elimination of Racial Discrimination (UN) 193–4, 195–6, 220, 267 employment 286–7 Rapporteurs 154–8 Recognition as person before the law 377–8 Reconciliation and truth-finding initiatives 177 Reform proposals 301–2 Africa 339 European system 337–9 South East Asia 339–40 towards universal ratification of key instruments 334 United Nations 301, 302–33 enhancing accessibility and dissemination 334–6 High Commissioner for Human Rights 305–7 human rights bodies 307–23 Human Rights Council 307–23, 332–3 Treaty Monitoring Bodies 307–23 Refugees 476–7 children 485, 491–2 definition of refugees 477–82 granting asylum 505–6 internally displaced people 476–7, 506–7 procedures for determining refugee status 483–8 children 485 INDEX procedural safeguards 485–8 regional criteria 493–7 rights of 497–505 conflict situations 502–5 equality of treatment and towards subsistence 500–2 refugees as aliens 499–500 termination of refugee status 488–93 UN High Commissioner for Refugees 476, 507–9 Religion 2, 50 indigenous peoples 442–4 Rendition extraordinary 386–8 Reproductive rights 560–2 Reservations from treaties 6, 64–75 case study: CEDAW 71–3 case study: Convention on the Rights of the Child 74 cultural sensitivity and 50 effect of 66–7 Human Rights Committee view 67–70 ICCPR and 70–1 ICJ’s approach to 65–6, 68–9 nature and scope 64–5 UN pressure to remove 74–5 Restitution indigenous peoples’ land rights and 470–2 Ruggie, John 269, 271 Rwanda genocide in 163 international tribunal for 168–9 S Sanctions 166–8 Sanitation right to 56 Saro-Wiwa, Ken 291 Saudi Arabia discrimination against women in 50 Sectoral and group rights 37–9 Security Council of the UN 135, 163–8 Self-determination right indigenous peoples 450–7 Sex discrimination 37–8 Committee on the Elimination of Discrimination against Women (UN) 189, 203–4, 205 employment 287 Islamic states 50 Sexual exploitation children 369 women 543–50 Shell 290–1 Sierra Leone Special Court 170–3 Slavery customary guarantees against 13–14 Smith, R 12–13, 14, 377–8 Soft law 16, 96 Sources of international human rights 2, 22 customary international law 12–16 jurisprudence 17–18, 23–5 case study: corporal punishment of children 18–21 other international and regional instruments 16–21 practical guide 21–5 treaties 3–11, 21–3 South Africa 137–8, 148 Standard-setting non-governmental organisations (NGOs) and 266 Stateless people 476–7, 509–17 States human rights institutions 27, 236–45, 250 Bangladesh 248–50 funding 243 as lifeline for international human rights system 243–5 nature of 245–6 Northern Ireland 247–8 operational guidelines 241–2 powers 238–40 regional position 245–6 separation of powers 242–3 USA 248 international human rights law and 228–36 case study: UK 230–4 different rules for different rights 234–6 dualist approach 229–30 monist approach 229 new states regional position of national institutions 245–6 treaties between see Treaties UN Treaty Monitoring Bodies and delays/non-submission of reports 323–7 inter-state complaints 196–9 | 573 574 | INDEX reports by states to 189–96, 312–14, 323–7 Steiner, H 94, 184 Sub-Commission on the Protection and Promotion of Human Rights 104 Subsistence refugees 500–2 Sudan 177 Sweden indigenous peoples 438–9 Swepston, Lee 114 Switzerland refugees in 490–1 Syria 152–3 T Technology dissemination of information and 334–6 Terra nullius 458, 462 Territorial application of international law 51 Terrorism detention pending trial and 396–8 Tistounet, E 315 Tomuschat, Christian 2, 234, 235 Torture 398–9 Committee Against Torture (UN) 196, 203, 208–11 customary guarantees against 13–14 effective investigation of allegations of 400–1 European Torture Committee 210, 213–14 refugees and 489–90 Uruguay 221 Trade unions 284, 285 Trafficking women 538–42 Travaux préparatoires 23, 88 Treaties 3–11, 21–3 amendments and additions 8–9 concluded in foreign language 7–8 declarations on 75–8 case study 76–8 cultural sensitivity and 50 as reservations 76 definition 3–4 denunciation 87–91 case study 90–1 individual petitions and 89–90 regional treaties 89 terminating treaty obligations 87–8 UN human rights treaties 88–9, 90–1 derogations from 78–87 case study: UK 80–3 European Court of Human Rights and 85–7 examples of derogation clauses 78–9, 80 Human Rights Committee and 79, 83–5 non-derogable provisions 83–5 how States agree to treaties 4–6 obligations 60 overlapping 10–11, 314–23 terminating 87–8 principal human rights treaties 9–10 reservations from 6, 64–75 case study: CEDAW 71–3 case study: Convention on the Rights of the Child 74 cultural sensitivity and 50 effect of reservations 66–7 Human Rights Committee view 67–70 ICCPR and 70–1 ICJ’s approach to 65–6, 68–9 nature and scope 64–5 UN pressure to remove reservations 74–5 Treaty Monitoring Bodies 23–4, 183–211 administrative, secretarial and research support 188–9 creation of committees 184–8 delays/non-submission of reports 323–7 enhancing accessibility and dissemination 335–6 follow-up mechanisms to ensure compliance 327–32 General Comments 205–8, 234–5 Human Rights Council and 333 independent enquiries by committees 203–5 individual communications 199–203 inter-state complaints 196–9 non-governmental organisations (NGOs) and 267 on-site visits 208–11 overlapping obligations and coexistence of monitoring systems 314–23 powers of committees 189 reform proposals 307–23 reports by states 189–96, 312–14, 323–7 universal human rights and 60–4 | 575 INDEX critical viewpoint 61 position of Convention on the Rights of the Child 62–4 UN support of universalism 61–2 universal ratification of key instruments 334 when they become legally binding 6–7 Trial detention pending trial 394–8 fair trial right 401–13 access to court 404–8 independent and fair judiciary 408–11 trial in absentia 412–13 Tribal populations see Indigenous peoples Trinidad & Tobago denunciation of treaties by 90 Truth-finding initiatives 177 Turkey derogation from treaties by 85–7 minority protection in 34–6 Turpel, M 453 U Uganda 176–7 United Kingdom corporal punishment of children in 19, 54 derogations from treaties by 80–3 lawyers and human rights in 293 reservations from treaties and 75 state institutions in Northern Ireland 247–8 terrorism suspect detention 397–8 women’s rights in 527–8 United Nations 7, 93–108 Commission on the Status of Women 100–2 Committee Against Torture 196, 203, 208–11 Committee on the Elimination of Discrimination against Women 189, 203–4, 205 Committee on the Elimination of Racial Discrimination 193–4, 195–6, 220, 267 Committee on the Rights of the Child 189 Economic and Social Council (ECOSOC) 98–102, 138–9 Committee on Economic, Social and Cultural Rights 187–8, 205, 220–1, 235 Education, Scientific and Cultural Organisation (UNESCO) 116, 135, 158–63 General Assembly 96–7 Declarations 16–17 Global Compact (1999) 271–8, 288 guiding principles on business and human rights 269–71 High Commissioner for Human Rights 188–9, 190, 244 reform proposals 305–7 High Commissioner for National Minorities 129–31 High Commissioner for Refugees 476, 507–9 Human Rights Committee 184, 186, 189, 200 derogations from treaties and 79 General Comments 205–8 reservations from treaties and 67–70 Human Rights Council 102–8, 142, 143–58 complaint procedure 148–52 enhancing accessibility and dissemination 335 reform proposals 307–23, 332–3 special sessions 152–3 thematic and country rapporteurs 154–8 universal periodic review 143–7, 267–8 minority protection and 36, 37 pressure to remove reservations from treaties 74–5 purpose 93–5 reform proposals 301, 302–33 enhancing accessibility and dissemination 334–6 High Commissioner for Human Rights 305–7 human rights bodies 307–23 Human Rights Council 307–23, 332–3 Treaty Monitoring Bodies 307–23 Security Council 135, 163–8 structure 95 Sub-Commission on the Protection and Promotion of Human Rights 104 support of universalism 61–2 Treaty Monitoring Bodies 23, 183–211 administrative, secretarial and research support 188–9 creation of committees 184–8 delays/non-submission of reports 323–7 576 | INDEX enhancing accessibility and dissemination 335–6 follow-up mechanisms to ensure compliance 327–32 General Comments 205–8, 234–5 Human Rights Council and 333 independent enquiries by committees 203–5 individual communications 199–203 inter-state complaints 196–9 non-governmental organisations (NGOs) and 267 on-site visits 208–11 overlapping obligations and coexistence of monitoring systems 314–23 powers of committees 189 reform proposals 307–23 reports by states 189–96, 312–14, 323–7 United States of America business organisations 269 human rights treaties and Convention on the Rights of the Child 14, 15 indigenous peoples 470–2 Inter-American Commission on Human Rights and 135, 180 state institutions 248 terrorism suspect detention 396–7 Universal ratification of key instruments 334 Universality 29–39 developing sectoral and group rights 37–9 minority protection 33–7 non-discrimination in application of human rights 33 treaties and 60–4 critical viewpoint 61 position of Convention on the Rights of the Child 62–4 UN support of universalism 61–2 Unocal 288–90 Uruguay torture in 221 V Van Beuren, G 252, 355 Van der Mei, A 219 Violence against women 543–56 Beijing Platform for Action 555 European agenda 553–4 regional provision in Americas 549–53 UN investigations 554–6 World Health Organisation Report 556 Virtual libraries 24–5 W War see Conflict situations Water right to clean water 56 Welfare systems 55 refugees 501 Women 519 discrimination against 37–8 Committee on the Elimination of Discrimination against Women (UN) 189, 203–4, 205 employment 287 Islamic states 50 equality 378–9, 521–36 affirmative action/positive discrimination 530–4 case study: women and political participation 534–6 litigating the right 523–8 non-discrimination principle 522–3 towards equality of rights between men and women 529–30 genital mutilation 42 International Labour Organisation and 519–21 maternity protection 520–1, 527–8 protection from exploitation 538–42 regional approaches to women’s rights 562–4 reproductive rights 560–2 tabulating women’s rights 536–8 trafficking 538–42 violence against 543–56 Beijing Platform for Action 555 European agenda 553–4 regional provision in Americas 549–53 UN investigations 554–6 World Health Organisation Report 556 see also Family rights World Conference against Racism (2001) 266 World Health Organisation 556 Y Yugoslavia genocide in 163 international tribunal for 169 Z Zimbabwe 148 .. .Texts and Materials on International Human Rights THIRD EDITION Texts and Materials on International Human Rights offers a carefully tailored overview of the subject that covers sources and. .. International Human Rights at Northumbria University This page intentionally left blank Texts and Materials on International Human Rights THIRD EDITION Rhona K.M Smith Third edition published... International Human Rights Key Concepts: Universality, Interdependence and Categories of Rights States and Treaty Obligations Human Rights Organisations and Key Institutions Monitoring and Enforcing Human
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Xem thêm: Texts and materials on international human rights 3rd ed , Texts and materials on international human rights 3rd ed , 4 Indivisibility and Interdependence, or A Hierarchy of Rights?, 1 “Universal Human Rights” and Ratification, 2 Limitations on State Compliance: Reservations, Declarations, Derogations and Denunciations, 2 The United Nations Educational, Scientific and Cultural Organisation (UNESCO), 3 United Nations Security Council, Responsibility to Protect, and Sanctions, 4 International Criminal Courts, Tribunals and Processes, 6 Children’s Commissioners – A Special Case?, 4 Educators, Lawyers and Individuals, 1 The Bigger Picture – Human Rights and United Nations Reform, 1 Leading the Way: The International Labour Organisation

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