Book contents
- Frontmatter
- Contents
- List of abbreviations
- Table of Cases
- Introduction
- 1 International human rights law and notions of human rights: foundations, achievements and challenges
- 2 International human rights law: the normative framework
- 3 Human rights in practice
- 4 The United Nations Charter system
- 5 The UN human rights treaty system
- 6 Regional human rights treaty systems
- 7 Individual complaints procedures
- 8 Civil and political rights
- 9 Economic, social and cultural rights
- 10 Group rights: self-determination, minorities and indigenous peoples
- 11 The human rights of women
- 12 The right to development, poverty and related rights
- 13 Victims’ rights and reparation
- 14 The application of human rights in armed conflict and the international criminalisation process
- 15 Human rights and counter-terrorism
- 16 Non-state actors and human rights
- 17 Globalisation and its impact on human rights
- Index
- References
This chapter is part of a book that is no longer available to purchase from Cambridge Core
2 - International human rights law: the normative framework
Book contents
- Frontmatter
- Contents
- List of abbreviations
- Table of Cases
- Introduction
- 1 International human rights law and notions of human rights: foundations, achievements and challenges
- 2 International human rights law: the normative framework
- 3 Human rights in practice
- 4 The United Nations Charter system
- 5 The UN human rights treaty system
- 6 Regional human rights treaty systems
- 7 Individual complaints procedures
- 8 Civil and political rights
- 9 Economic, social and cultural rights
- 10 Group rights: self-determination, minorities and indigenous peoples
- 11 The human rights of women
- 12 The right to development, poverty and related rights
- 13 Victims’ rights and reparation
- 14 The application of human rights in armed conflict and the international criminalisation process
- 15 Human rights and counter-terrorism
- 16 Non-state actors and human rights
- 17 Globalisation and its impact on human rights
- Index
- References
Summary
Introduction
The multiple voices making up the field of international human rights are one of its defining characteristics. Diplomats, officials, politicians, social movements, NGOs, academics from various disciplines, commentators and the public at large contribute to debate and practice. They add to, and often complement, the work of (international) lawyers. The interaction of this multitude of actors has stimulated the development of international human rights law. However, it has also increased the scope for misunderstandings and misrepresentations of the law that may be misleading, if not damaging. International human rights law is a normative legal system that has its own rules and methods, which, even if contested, frame the consideration of arising questions. For example, claims that the death penalty is unlawful under international law, while welcome from an advocacy perspective, may be seen as turning what ought to be the law (de lege ferenda) into a statement about what the law is (de lege lata). If such a claim were to be framed as a legal argument, it would have to be developed very carefully with adequate references so as not to risk undermining the (legal) credibility of the person or organisation making it. Such a risk is particularly evident when assertions made – such as that a successor government may not be responsible for the violations committed by the government preceding it (in an NGO report on Iraq) – reveal fundamental misconceptions of international law, in this case the difference between the succession of governments and states.
- Type
- Chapter
- Information
- International Human Rights Law and Practice , pp. 50 - 95Publisher: Cambridge University PressPrint publication year: 2013
References
and (eds.), International Law and the Quest for its Implementation. Liber amicorum Vera Gowlland-Debbas (Leiden: Brill, 2010).
and , The Making of International Law (Oxford University Press, 2007).
, ‘Human Rights Treaties, Invalid Reservations and State Consent’, AJIL
96(3) (2002), 531–60.Google Scholar
and , The Impact of the United Nations Treaties on the Domestic Level (The Hague, London, New York: Kluwer Law International, 2002).
and (eds.), The Impact of Human Rights Law on General International Law (Oxford University Press, 2009).
, Human Rights and Humanitarian Norms as Customary Law (Oxford: Clarendon Press, 1989).
, ‘Standard Setting in Human Rights: Critique and Prognosis’, HRQ
29(3) (2007), 547–630.Google Scholar
, National Courts and the International Rule of Law (Oxford University Press, 2011).
, Peremptory Norms in International Law (Oxford University Press, 2006).
: Assessing the Work of the International Law Commission on State Responsibility, EJIL
13(5) (2002), 1053–1257.Google Scholar
, Enforcing Obligations Erga Omnes in International Law (Cambridge
University Press, 2005).
, State Succession to International Responsibility (Leiden, Boston: Martinus Nijhoff, 2007)
, ‘Practice, Propaganda and Principle in International Law (Inaugural Lecture)’, CLP
42 (1989), 1–19Google Scholar
Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. A/CN.4/L.682 (13 April 2006)
and (eds.), The Impact of Human Rights Law on General International Law (Oxford University Press, 2009)
General Comment 24: Issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.6 (4 November 1994)
general comment 26: Continuity of obligations, UN Doc. CCPR/C/21/Rev.1/Add.8/Rev.1 (8 December 1997)
, Eunomia: New Order for a New World, 2nd edn (Oxford University Press, 2001)
and , ‘Is there Something like a Constitution of International Law: Critical Analysis of the Debate on World Constitutionalism’, ZaöRV
68 (2008), 623–50Google Scholar
, International Human Rights Law (Cambridge University Press, 2010), 53–5
, On the Law of Peace, Peace Agreements and the Lex Pacificatoria (Oxford University Press, 2008), 127–43
, Modern Treaty Law and Practice, 2nd edn (Cambridge University Press, 2007), 6–31
, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944), 79–98
, Genocide in International Law: The Crime of Crimes, 2nd edn (Cambridge University Press, 2009), 17–90
and , The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff, 1988), 13–29
, ‘Standard Setting in Human Rights: Critique and Prognosis’, HRQ
29(3) (2007), 547–630Google Scholar
and , The Making of International Law, (Oxford University Press, 2007), 166–83
, ‘Nongovernmental Organizations and International Law’, AJIL
100(2) (2006), 348–72, at 368–72Google Scholar
, The Politics of Constructing the International Criminal Court: NGOs, Discourse and Agency (New York, Basingstoke: Palgrave Macmillan, 2008)
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory opinion, ICJ Reports 1951, 15
Kennedy v. Trinidad and Tobago, UN Doc. CCPR/C/67/D/845/1999 (2 November 1999), para. 6.7
Belilos v. Switzerland, (1988) 10 EHRR 466, paras. 50–60
Loizidou v. Turkey, Preliminary objections, (1995) 20 EHRR 99, paras. 15, 27, 90–98
Kennedy v. Trinidad and Tobago that the reservation entered was invalid. See Kennedy v. Trinidad and Tobago, UN Doc. CCPR/C/74/D/845/1998 (26 March 2002), para. 10
(ed.), International Law, 3rd edn (Oxford University Press, 2010), 95–121
, Final Report of the Committee, Statement of Principles Applicable to the Formation of General Customary International Law, London Conference, 2000
, ‘The Human Right to Development: between Rhetoric and Reality’, Harv. Hum. Rts. J. 17 (2004), 137–68Google Scholar
and (eds.), Customary International Humanitarian Law. Vol. I: Rules and vol. II: Practice (ICRC and Cambridge University Press, 2005)
Prosecutor v. Tadic´, Appeals Chamber Decision on the defense motion for interlocutory appeal on jurisdiction (2 October 1995), para. 99
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, 14, paras. 206–9
, ‘Multilateral Treaties as Evidence of Customary International Law’, BYIL
41 (1965–6), 275–300Google Scholar
, ‘Incoherent and Ineffective: the Concept of Persistent Objector Revisited’, ICLQ
59(3) (2010), 779–802Google Scholar
, ‘The Problem of State Succession and the Identity of States under International Law’, EJIL
9(1) (1998), 142–63, particularly at 157Google Scholar
, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, Ga. J. Int’l & Comp. L. 25 (1/2) (1995–6), 287–397Google Scholar
and , ‘The Sources of Human Rights Law: Custom, Jus Cogens and General Principles’, AYIL 12 (1988-9), 82–108Google Scholar
, ‘Treaty Bodies and the Interpretation of Human Rights’, Vand. J. Transnat’l L.
42(3) (2009), 905–48Google Scholar
, The Humanitarian Face of the International Court of Justice: Its Contribution to Interpreting and Developing International Human Rights and Humanitarian Law Rules and Principles (Antwerp: Intersentia, 2008)
, The Development of Human Rights Law by the Judges of the International Court of Justice (Oxford: Hart, 2007)
(ed.), Protecting Human Rights: Essays in International Law and Policy in Honour of Navanethem Pillay (Leiden, Boston: Martinus
Nijhoff, 2010)
Case C-60/00, Mary Carpenter v. Secretary of State for the Home Department [2002] ECR I-6279 (right of spouse not to be deported)
Mme Hadijatou Mani Koraou v. The Republic of Niger (Judgment of 27 October 2008), ECW/CCJ/JUD/06/08 (prohibition of slavery)
A and Others v. Secretary of State for the Home Department, [2004] UK House of Lords (UKHL) 56
, ‘The Nuclear Weapons Advisory Opinion and the New Jurisprudence of Global Civil Society’, Transnat’l L. & Contemp. Probs. (1997), 333–52, at 340–2Google Scholar
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, ICJ Reports 2007, 43, paras. 402–6
, ‘Here and There: International Law in Domestic Courts’, N.Y.U.J. Int’l L. & Pol.
32 (1999–2000), 501–35Google Scholar
Egyptian Initiative for Personal Rights and Interights v. Arab Republic of Egypt, 334/06 (2011)
HRCtee, General Comment 21: Replaces general comment 9 concerning humane treatment of persons deprived of liberty (Art. 10) (1992)
such as in Akwanga v. Cameroon, UN Doc. CCPR/C/101/D/1813/2008 (22 March 2011), para. 7.3
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 1997
Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights 1987
, ‘The Role of Soft Law in the International Legal System: the Case of the United Nations Declaration on the Rights of Indigenous Peoples’, ICLQ
58(4) (2009), 957–83Google Scholar
, ‘Softness in International Law: a Self-serving Quest for New Legal Materials’, EJIL
19(5) (2008), 1075–93Google Scholar
and (eds.), The Dynamics of Constitutionalism in the Age of Globalization (The Hague: TMC Asser Press, 2009), pp. 153–80
, ‘The Authority of Peremptory Norms in International Law: State Consent or Natural Law?’, NJIL
78(2) (2009), 133–75Google Scholar
Barcelona Traction, Light and Power Company, Limited (Spain v. Belgium), Judgment, ICJ Reports 1970, 3, para. 33
, ‘Normative Conflict and the Fuzziness of the International ius cogens Regime’, ZaöRV
69 (2009), 961–77Google Scholar
, ‘The Right to Development’, in Bedjaoui (ed.), International Law: Achievements and Prospects (Paris, Dordrecht: UNESCO and Martinus Nijhoff, 1991), 1177–1204
et al. (eds.), The Right to Development in International Law (Dordrecht: Nijhoff, 1992), 7–23, at 21
Al-Adsani v. United Kingdom, (2001) 273, para. 61. See also Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), ICJ Judgment of 3 February 2012, paras. 92–7
, ‘Solidarity Measures: State Responsibility as a New International Order?’, BYIL
72 (2001), 337–56Google Scholar
, ‘The Invocation of Responsibility for the Breach of “Obligations under Peremptory Norms of General International Law”’, EJIL
13(5) (2002), 1201–20Google Scholar
, Enforcing erga omnes Obligations in International Law (Cambridge University Press, 2005)
Yearbook of the International Law Commission Vol. II, Part II (United Nations, 2001), 110–16, and 126–7
HRCtee, General Comment 31: The nature of the general legal obligation imposed on states parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (26 May 2004)
, ‘Conceptualising the Relationship between jus cogens and erga omnes Rules’, NJIL
66 (1997), 211–39 at 237Google Scholar
East Timor (Portugal v. Australia), Judgment, ICJ Reports 1995, 90, para. 29
Mavrommatis Palestine Concessions, Judgment no. 2, 1924
, Principles of Public International Law (Oxford University Press, 2008), 57–67
, The Access of Individuals to International Justice (Oxford University Press, 2011), 1–16
, ‘The Protection of the Individual in International Law’, Cal. W. Int’L L. J. 31 (2001), 241–76Google Scholar
Appeal from a Judgment of the Hungaro/Czechoslovak Mixed Arbitral Tribunal, Judgment (1933) PCIJ Ser. A/B, no. 61, 208, 231
, International Law and the Rights of Minorities (Oxford: Clarendon Press, 1991), 113–37
, Universal Human Rights in Theory and Practice, 2nd edn (Ithaca, NY: Cornell University, 2003), 208–11
, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press, 2007), 216–22
Vienna Declaration and Programme of Action, UN Doc. A/Conf.157/23 (12 July 1993), paras. 5 and 18
, ‘Human Dignity and Judicial Interpretation of Human Rights’, EJIL 19(4) (2008), 655–724Google Scholar
and F. , Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006)
, Human Rights in Times of Conflict and Terrorism (Oxford University Press, 2011)
CESCR, General Comment 3: The nature of States parties obligations (Art. 2, par.1) (14 December 1990), para. 10
Report of the UN High Commissioner for Human Rights (focusing on the progressive realisation of ESC rights under international human rights law), UN Doc. E/2007/82 (25 June 2007)
As articulated succinctly in the landmark case of Velásquez-Rodriguez v. Honduras, Merits, Judgment of 29 July 1988, Ser. C no. 4, paras. 172–7
M. C. v. Bulgaria, (2005) 40 EHRR 20, paras. 109–87, and Vertido v. The Philippines, UN Doc. CEDAW/C/46/D/18/2008 (16 July 2010), paras. 8.1–8.10
CESCR, The Right to Adequate Food (Art. 11), UN Doc. E/C.12/1999/5 (12 May 1999)
, The Development of Positive Obligations under the European Convention of Human Rights by the European Court of Human Rights (Oxford: Hart, 2004)
, The Positive Obligations of the State under the European Convention on Human Rights (London, New York: Routledge, 2012)
, The Human Rights of Non-Citizens (Oxford University Press, 2008)
, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011)
and , ‘Incomplete Internalization and Compliance with Human Rights Law’, EJIL
19(4) (2008), 725–48Google Scholar
, The Power of Legitimacy Among Nations (Oxford University Press, 1990)
, The African Human Rights System, Activist Forces and International Institutions (Cambridge University Press, 2007), 12–62
and , The Impact of the United Nations Treaties on the Domestic Level (The Hague, London, New York: Kluwer Law International, 2002), 7–46
C. Harland, ‘The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic Law of States Parties: an Initial Global Survey Through UN Human Rights Committee Documents’, HRQ 22(1) (2002), 187–260
, ‘Law Reform in Times of Peace Processes and Transitional Justice: the Sudanese Dimension’, in Oette (ed.), Criminal Law Reform and Transitional Justice: Human Rights Perspectives for Sudan (Farnham: Ashgate, 2011), 11–31, at 22–9
, ‘Domestic Courts and International Human Rights Law: the Ongoing Judicial Conversation (The Hondis Lecture 2008)’, NQHR
27(2) (2009), 291–307Google Scholar
, The Judicial Application of Human Rights Law: National, Regional and International Jurisprudence (Cambridge University Press, 2002)
(ed.), Enforcing International Human Rights in Domestic Courts (The Hague: Kluwer Law International, 1997)
, National Courts and the International Rule of Law (Oxford University Press, 2011)
Singarasa v. Attorney General, S.C. SPL (LA) no. 182/99 (2006)
Farouq Mohamed Ibrahim Al Nour v. (1) Government of Sudan; (2) Legislative Body; Final order by Justice Abdallah Aalmin Albashir President of the Constitutional Court (6 November 2008)
, The Rule of Law (London: Allen Lane, 2010), 133–59
Government of the Republic of South Africa and Others v. Grootboom and Others (CCT11/00) [2000]
and (eds.), Human Rights, Justice and Constitutional Empowerment (Oxford University Press, 2007)
Principles relating to the Status of National Institutions (The Paris Principles), UNGA resolution 48/134 of 20 December 1993
, Office of the High Commissioner for Human Rights (OHCHR), National Human Rights Institutions: History, Principles, Roles and Responsibilities, Professional Training Series no. 4 (rev. 1) (Geneva and New York: United Nations, 2010)
, The Role of National Human Rights Institutions at the International and Regional Levels: The Experience of Africa (Oxford: Hart, 2007)
, and (eds.), National Human Rights Institutions: Articles and Working Papers (Copenhagen: Danish Centre for Human Rights, 2000)
, Assessing the Effectiveness of National Human Rights Institutions (Geneva: ICHRP, 2005)
UHRC, 14th Annual Report, 2011, 14
UHRC, 13th Annual Report, 2010, 134
UHRC, 14th Annual Report, 2011, 50
, The Impact of the ILC’s Articles on Responsibility of States for Internationally Wrongful Acts, Preliminary Draft (London: British Institute of International and Comparative Law, 2007)
Commissioner for Human Rights, Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation and Gender Identity, UN Doc. A/HR/C/19/41 (17 November 2011)
, India: Security Forces Cannot Claim Immunity under AFSPA, Must Face Trial for Violations (7 February 2012)
Interim report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. A/66/254 (3 August 2011)
The treatment of refugees and their ‘rightlessness’ had already been highlighted by Hannah Arendt in her seminal work, The Origins of Totalitarianism (New York: Schocken Books, 1951)
Report of the Independent Expert on the Effect of Economic Reform Policies and Foreign Debt on the Full Enjoyment of all Human Rights, Bernards Mudho, UN Doc. A/HRC/4/10 (3 January 2007), paras. 26–69
and , Human Rights and Structural Adjustment (Cambridge University Press, 2007)
, ‘Human Rights Group Challenges Uganda’s Polygamy Laws’, Centre for Human Rights and Humanitarian Law, The Human Rights Brief (6 April 2010)