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Handbook of international human rights law routledge


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.


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Routledge Handbook of
International Human
Rights Law

Edited by Scott Sheeran and Sir Nigel Rodley


First published 2013 by Routledge
2 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) 1. 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
1 The broad review of international human rights law
Scott Sheeran and Sir Nigel Rodley

1
3

PART II

Nature and evolution of international human rights law
2 The historical development of human rights
Wiktor Osiatyn´ ski

7
9

3 Human rights in political and legal theory
Guglielmo Verdirame

25

4 Universalism of human rights and cultural relativism
Michael Freeman

49

5 The evolving study of human rights: interdisciplinarity and new directions
Micheline Ishay

63

6 The relationship of international human rights law and general
international law: hermeneutic constraint, or pushing the boundaries?
Scott Sheeran

79

7 International human rights law and a developing world perspective
Antony Anghie

109

8 The contemporary challenges to international human rights
Radhika Coomaraswamy

127
v


Contents

9 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
Françoise 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


Contributors

Antony Anghie is the Samuel D. Thurman Professor of Law at the S.J. Quinney School of Law
at the University of Utah. He has written on a range of issues including the history and theory
of international law, human rights, the use of force, international economic law and globalisation.
He is the author of Imperialism, Sovereignty and the Making of International Law (Cambridge
University Press, 2005).
Radhika Coomaraswamy was appointed as the Under-Secretary-General, Special Representative for Children and Armed Conflict from 2006–12. She was also the Special Rapporteur on
Violence against Women from 1994–2003. She has served as a member of the Global Faculty of
the New York University School of Law, and has published widely, including two books on
constitutional law and numerous articles on ethnic studies and the status of women.
Bruno Stagno Ugarte is Executive Director at Security Council Report in New York. He
recently concluded a sixteen-year career in the Costa Rican Foreign Service, which included
serving as Ambassador and Permanent Representative to the United Nations (2002–06), as
Foreign Minister (2006–10) and as President of the Assembly of States Parties of the International Criminal Court (2005–08). He is a graduate of Georgetown University, Université
de la Sorbonne and Princeton University.
Andrew Clapham is Director of the Geneva Academy of International Humanitarian Law and
Human Rights. He is Professor of Public International Law at the Graduate Institute of International and Development Studies, which he joined in 1997. He has published numerous books
and articles including Human Rights Obligations of Non-State Actors (Oxford University Press,
2006) and International Human Rights Lexicon with Susan Marks (Oxford University Press, 2005).
Michael O’Flaherty is Chief Commissioner of the Northern Ireland Human Rights Commission. He is Professor and holds the Chair in Applied Human Rights at the University of
Nottingham and is Co-Chair of its Human Rights Law Centre. He has been Vice-Chairperson
of the UN Human Rights Committee and served in a number of senior positions with the UN.
He has published extensively including Human Rights Field Operations, Law, Theory and Practice
(Ashgate, 2007).
Daria Davitti is a Lecturer in Law at Keele University and a doctoral candidate at the University
of Nottingham. She has worked with various NGOs on human rights as well as with OHCHR.
From 2006–08 she was a human rights officer for the UN Assistance Mission in Afghanistan. She
has published on human rights fieldwork, forced migration, investment and human rights, and the
recently launched UN Framework and Guiding Principles on business and human rights.
Françoise J. Hampson OBE is a Professor of Law at the Human Rights Centre of the
University of Essex. She was a member of the steering group and group of experts for
the Red Cross study on customary international humanitarian law, and a member of the UN
Sub-Commission on the Promotion and Protection of Human Rights from 1998 to 2007. She
has been legal representative before the European Court of Human Rights. She has published in
the fields of law of armed conflicts and human rights law.
William Schabas is Professor of International Law at Middlesex University in London. He is also
professor and chairman of the Irish Centre for Human Rights at the National University of Ireland
Galway. He is the author of more than twenty books and 300 journal articles, on such subjects as
x


Contributors

the abolition of capital punishment, genocide and the international criminal tribunals, such as The
International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010).
Cornelis Wouters is the Senior Refugee Law Advisor within the Division of International
Protection of UNHCR in Geneva. He is responsible for doctrinal guidance in international
refugee law and judicial engagement work. He has worked at Leiden and Mahidol Universities,
various human rights and refugee NGOs, and was a member of the Sub-Committee on Asylum
and Refugee Law of the Permanent Committee of Experts on International Immigration,
Refugee and Criminal Law.
Sheldon Leader is a Professor of Law at the Human Rights Centre at the University of Essex.
He is Director of the Essex Business and Human Rights Project (EBHR) and a member of
the Advisory Group to the Human Rights Committee of the Law Society of England and Wales.
He teaches at the University of Essex, University of Paris-Ouest and a number of US universities. His work with the EBHR involves advice and training on issues involving business and
human rights in various parts of the world.
Peter T. Muchlinski FRSA is Professor in International Commercial Law at the School of
Oriental and African Studies (SOAS), University of London. He is the author of Multinational
Enterprises and the Law (Oxford University Press, 2007) and is co-editor of the Oxford Handbook
of International Investment Law (Oxford University Press, 2008). He acts as an adviser to the
United Nations Conference on Trade and Development (UNCTAD) on investment law issues.
Karen Hulme is a Professor in the School of Law at the University of Essex. She has written
on environmental security, environmental damage in wartime, climate change and warfare and
teaches in environment and human rights. Her book entitled War Torn Environment: Interpreting
the Legal Threshold won the American Society of International Law’s Francis Lieber Prize for
2004 for ‘outstanding scholarship in the field of the law of armed conflict’.
Evadné Grant is Associate Head of Department and Director of Postgraduate Programmes in the
Department of Law, University of the West of England, Bristol. She has taught at the Universities
of Cape Town and of the Witwatersrand, as well as City University London and Oxford Brookes
University. Her research covers a variety of issues in international human rights law, including
human dignity and social, economic and cultural rights, and human rights and the environment.
Alain Pellet is a Professor of Public International Law at the University Paris Ouest, Nanterre/
La Défense where he was Director of the Centre de Droit International (CEDIN) from
1991 to 2001. He is a former Member and Chairperson of the UN International Law
Commission (ILC), and Special Rapporteur for the ILC’s work on reservations to treaties. He
has been counsel before international tribunals including the ICJ, and is author of numerous
books and articles on public international law.
Lee Swepston is Former Senior Advisor on Human Rights at the International Labour
Organization (ILO) and is now a teacher (including at University of Lund and Raoul
Wallenberg Institute) and consultant. He joined the ILO in 1973, after a year with the International Commission of Jurists. He has written numerous books and articles on human rights
and international labour law, child labour, freedom of association, discrimination, HIV/AIDS,
migrant workers and indigenous/tribal peoples.
xi


Contributors

Awn Shawkat Al-Khasawneh was a Judge of the International Court of Justice from 2000 to
2011 and also held the position of Vice-President. He was appointed Prime Minister of
Jordan in 2011 and decided to resign in 2012. He is a Jordanian international lawyer, statesman
and diplomat, and has written and lectured extensively on international law. He has served
on many inter-national bodies, including the UN International Law Commission and the
Sub-Commission on the Prevention of Discrimination and Protection of Minorities.
Catherine Bevilacqua is Deputy Director of the Human Rights in Iran Unit, which provides
support to the mandate of the UN Special Rapporteur on Iran. She has worked for Amnesty
International’s office to the UN in Geneva and its Asia-Pacific Programme, and with grassroots
organizations in Europe, South Asia and Brazil. She holds degrees from Harvard University and
the University of Essex, where she researched the relationship between UN Security Council
powers and international human rights law.
Philip Leach is Professor of Human Rights, a solicitor, and Director of the European Human
Rights Advocacy Centre (EHRAC), based at Middlesex University. He has extensive experience of representing applicants before the European Court of Human Rights, and is the author
of Taking a Case to the European Court of Human Rights (Oxford University Press, 3rd ed., 2011).
He has researched and written widely on a variety of human rights issues especially in the
European and UK contexts.
Clara Sandoval is a Senior Lecturer in the School of Law and Human Rights Centre at Essex
University and Director of the Essex Transitional Justice Network. She teaches and researches on
the Inter-American System of Human Rights, legal theory, business and human rights and transitional justice. Most of her recent scholarship has been focused on reparations for gross human
rights violations. Clara also engages in human rights litigation, training and capacity-building
with various organisations.
Frans Viljoen is Professor and Director of the Centre for Human Rights, University of Pretoria.
He is acknowledged as an internationally recognised researcher (National Research Foundation,
SA) and has won the Exceptional Achiever award at the University of Pretoria. He is the editor of
the African Human Rights Law Reports and African Human Rights Law Journal. He has numerous publications including International Human Rights Law in Africa (Oxford University Press, 2007).
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University in Bangkok. He
teaches international law, human rights, humanitarian law and a variety of other subjects. He
has served in various capacities in the United Nations system, including as the Special
Rapporteur on the sale of children, child prostitution and child pornography from 1990 to 1994,
and since 2005 has been the Special Rapporteur on the Situation of Human Rights in the
Democratic People’s Republic of Korea. In 2004 he was awarded the UNESCO Prize for
Human Rights Education. His recent publications include A Commentary on the United Nations
Convention on the Rights of the Child: Article 34: Sexual Exploitation and Sexual Abuse of Children
(Martinus Nijhof, 2007).
Mervat Rishmawi is a Palestinian human rights activist and human rights consultant. She is a
Fellow of the Human Rights Centre, University of Essex, and the Human Rights Law Centre,
University of Nottingham. She previously worked with Amnesty International for approximately twelve years, most of which as Legal Advisor to the Middle East and North Africa
xii


Contributors

Region. She has been a consultant to UN agencies and OHCHR, as well as a number of
regional and international organisations.
Lorna McGregor is a Reader in the School of Law and Director of the Human Rights Centre,
University of Essex. She was the International Legal Adviser at REDRESS where she was involved extensively in international and national human rights litigation. Her expertise is public
international law with a focus on international human rights law, including core violations,
systems of access to justice, international law in national courts and procedural rules under
international law.
Paul Hunt is a Professor in Law at the Human Rights Centre, University of Essex and Adjunct
Professor, University of Waikato. He was a member of the UN Committee on Economic, Social
and Cultural Rights (1999–2002) and the first UN Special Rapporteur on the right to the
highest attainable standard of health (2002–08). He has published extensively in the field of
economic, social and cultural rights, and has significant experience in human rights NGOs in the
UK and Gambia.
Judith Bueno de Mesquita is a Lecturer in the School of Law and a Member of the Human
Rights Centre at the University of Essex, UK. Her teaching, research and publications focus on
economic, social and cultural rights, and sexual and reproductive health and human rights. From
2009-2011 she worked as a consultant with the Department of Reproductive Health and
Research, World Health Organisation. From 2001-2008 she worked a Senior Research Officer
in the Human Rights Centre, University of Essex, in support of the mandate of the UN Special
Rapporteur on the right to the highest attainable standard of health.
Joo-Young Lee is a Lecturer of Human Rights and associate of the Human Rights Centre at
Seoul National University in South Korea. She is the author of A Human Rights Framework for
Intellectual Property and Access to Medicines (Ashgate Publishing, 2014, forthcoming). She teaches
and researches on international human rights law, human rights and development, and business
and human rights, with particular focus on economic, social and cultural rights.
Sally-Anne Way is currently Human Rights Officer at the UN OHCHR, and was previously
Co-Director of the LLM in International Human Rights Law and Lecturer in the School of Law
at the University of Essex. Her interests focus on the history, theory and practice of economic,
social and cultural rights and on rights-based approaches to development. From 2001–2007, she
worked at the Graduate Institute of International and Development Studies in Geneva, serving
as Senior Adviser to the UN Special Rapporteur on the Right to Food. Her publications include
‘The Fight for the Right to Food’ (Palgrave Macmillan, 2011).
Malcolm Evans OBE is Professor of Public International Law at the University of Bristol,
where he was Head of School (2003–05) and Dean of the Faculty of Social Sciences and Law
(2005–09). He has researched and published extensively on the international protection of
human rights, with particular focus on freedom of religion and the prevention of torture, and
also the law of the sea. He has various other roles, including Chair of the UN Sub-Committee
for the Prevention of Torture.
Martin Scheinin is Professor of Public International Law at the European University Institute,
Florence, and served ten years (1998–2008) as Professor of Constitutional and International Law
xiii


Contributors

and Director of the Institute for Human Rights at Åbo Akademi University. He was a member
of the UN Human Rights Committee (1997–2004) and Special Rapporteur on human rights
and counter-terrorism (2005–11). Since 2010 he has been the President of the International
Association of Constitutional Law.
Upendra Baxi, an Emeritus Professor of Law at the Universities of Warwick and Delhi, has
previously served as the Vice-Chancellor of the Universities of South Gujarat and Delhi and as
the Honorary Director of the Indian Law Institute and President of the Indian Society of International Law. His recent works include The Future of Human Rights (Oxford University Press,
2008) and Human Rights in a Posthuman World: Critical Essays (Oxford University Press, 2011).
Andrew Byrnes is Professor of Law at the University of New South Wales and Chair of the
Australian Human Rights Centre. He teaches and publishes in international law, in particular
human rights, and has published on the Convention on Elimination of Discrimination Against
Women (CEDAW) and the human rights of women. He has acted as a consultant on gender and
other human rights issues to various organisations including OHCHR and the UN Division for
the Advancement of Women.
Ralph Wilde is a member of the Faculty of Laws at University College London, and has taught
at Cambridge, LSE, Texas and Georgetown Universities. His research focuses on many areas of
international law including extraterritorial application of human rights. His book International
Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away
(Oxford University Press, 2008) was awarded a Certificate of Merit by the American Society of
International Law.
Dinah Shelton is the Manatt/Ahn Professor of Law at the George Washington University Law
School. She has written and published extensively 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 Law). She was a member of
the Inter-American Human Rights Commission and in 2010 she served as President of the
Commission.
Megan Hirst is Legal Officer in the Victims’ Participation Unit at the Special Tribunal for
Lebanon. Previously she worked in the Victims Participation and Reparations Section at the
International Criminal Court. She has also worked in Timor-Leste for the International Center
for Transitional Justice (ICTJ) and the Commission for Truth, Reception and Reconciliation,
and has worked in legal system monitoring in both Timor-Leste and Kosovo.
Nadia Bernaz is Senior Lecturer in law and programme leader of the MA Human Rights and
Business at Middlesex University in London, and adjunct lecturer of the Irish Centre for Human
Rights (NUI Galway, Republic of Ireland). She is the co-editor of the Routledge Handbook of
International Criminal Law (2011) and has written and presented papers on a wide range of subjects in international law and human rights law.
Ted Piccone is a Senior Fellow and Deputy Director for Foreign Policy at the Brookings
Institution. He was Executive Director and Co-Founder of the Democracy Coalition Project
(2001–08) and served in the Clinton Administration in various roles. He has written on
US–Latin American relations, democracy and human rights, and multilateral diplomacy, including
xiv


Contributors

Catalysts for Rights: The Unique Contribution of the UN’s Independent Experts on Human Rights
(Brookings, 2010).
Allehone M. Abebe is a former Ethiopian diplomat with an extensive background in the UN
Human Rights Council. He has served as a co-chair of the Technical Advisory Group of the
Global Commission on HIV/AIDS and Law. His research examines the role of regional normative standards in the protection of the human rights of internally displaced persons in Africa. He
now works at UNHCR and is currently a doctoral candidate under the supervision of Professor
Walter Kalin.
Juan E. Méndez is a Visiting Professor of Law at the American University-Washington College
of Law and UN Special Rapporteur on torture since 2010. He has held numerous roles in
universities and society, including President of the International Center for Transnational Justice,
and Special Advisor on the Prevention of Genocide (2004–07). He was a member of the
Inter-American Commission on Human Rights of the OAS (2000–03) and served as its
President in 2002.
Catherine Cone is Law Clerk to the Honorable Anna Blackburne-Rigsby, District of Columbia
Court of Appeals, and a JD graduate of the American University's Washington College of Law. She
was formerly research assistant to Juan E. Méndez, UN Special Rapporteur on torture. Catherine
has worked at the Center for Family Representation, a legal and social assistance provider to
families in crisis. She also provided programmatic support to technical legal assistance programmes
of the American Bar Association’s Rule of Law Initiative.

xv


Acknowledgements

We would like to thank the authors who have given their scarce time to this project. It has been
a large volume to bring to fruition, and without their strong contributions it simply would not
have been possible. We thank the international human rights law students at the University of
Essex who assisted significantly with the large task of preparing and editing this volume. This
included Alex Moorehead, Alice Lixi, Ronnate Asirwatham, Christina Beninger, Francesca Tronco
García, Shannon Gough, Lucy Graham, Ota Hlinomaz, Adeyinka Ige, Douglas Kerr, Charlotte
Pier, Leah Mansfield, Marina Themistocleous, Isaline Wittorski, and Ashirbani Dutta. The team
at Routledge, including Mark Sapwell, were very patient and helpful along the way, as was
RefineCatch the copyeditors. Scott would also like to thank Haidi for her constant love and support, along with my mother, and Valentino and Leo. Nigel, as always, is deeply indebted for the
unstinting contribution of Dr Lyn Rodley, his sternest critic and acutest editor.
Scott Sheeran
Sir Nigel Rodley

xvi


Part I

Introduction and overview


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1
The broad review of international
human rights law
Scott Sheeran and Sir Nigel Rodley

The genesis of this collaborative scholarly project was the recognition of a timely point to
pause and undertake a broad and thorough review of the architecture of international human
rights law. This is after a period that seems, at least with the benefit of hindsight, to have been
one of almost constant, even meteoric development. While this volume examines the origins,
nature and practice of international human rights law, the main thrust is an exploration of
transverse themes, and the evolution, interaction with other bodies of law, and future of the
discipline. The contributions draw on perspectives from different regions, by both emerging
and established scholars and practitioners from diverse backgrounds and with varied expertise.
As such, this volume provides one of the most comprehensive surveys of the discipline to
date. The editing of contributions has confi rmed many of our own intuitions, but has also
challenged our thinking and provided new insights. It is from this privileged and overarching
position, informed by the contents of this volume, that we venture a few key reflections on
the corpus of international human rights law as a whole.
The human rights project, a great societal endeavour, has been a work in progress for two
to three centuries nourished by foundational precepts of philosophy, political theory, and
ecclesiastical thought of more than two millennia. A pivotal element of the project has been
the establishment and significant influence of the discipline of international human rights
law, characterised by impressive growth over the last sixty years and increasing specialisation.
From the 1948 Universal Declaration of Human Rights, and the concepts and trends that
preceded and underpinned that instrument, the body of international human rights law is
now both vast and complex. The discipline’s influence has extended into broader public international law and became integral in national and international life in respect of a wide range
of issues. International human rights law is dynamic and its evolution is not linear; there is no
static end point. As societies continuously evolve, so too does the way in which human rights
are internalised and manifested, and the role they play in the social compact. In safeguarding
human conscience and dignity, human rights concepts and law will continue to be a central
pillar of the evolution of the societies that we have created.
Due to the impressive breadth and complexity of the body of international human rights
law, a few important subjects could not be fully covered in this volume. Yet, despite its
breadth, the human rights project is not without its potential gaps, whether substantive
3


Scott Sheeran and Sir Nigel Rodley

(e.g. no explicit right of freedom from corruption), in confl icting interpretation and views
on the scope of rights (e.g. the freedom of religion), or a simple lethargy of significant
development (e.g. right to political participation, cultural rights).
International human rights law is now more encompassing than was expected or even
conceived in the Charter and Universal Declaration. Its growth has largely obviated for
example the distinction between nationals and non-nationals within the jurisdiction of the
state, thereby somewhat eclipsing other areas of law (e.g. diplomatic protection, international
refugee law). With the development of extraterritorial obligations, which are accepted by
most States, the scope and reach of human rights has enlarged into challenging areas such
as overseas military operations and economic sanctions. A significant exception to this
growing reach of human rights obligations has been the accountability of international
organisations, such as the UN and international financial institutions, for the impact of
their direct actions and exercise of public power on the enjoyment of human rights.
The international community has affi rmed the approach, articulated in the 1993
UN Vienna Declaration and Programme of Action, that ‘[a]ll human rights are universal,
indivisible and interdependent and interrelated’. However, the attractive simplicity of such a
statement masks many issues that are not yet fully explored or resolved. For example, in light
of the jus cogens status of such rights as the prohibition against torture, and the associated
consequences under the law of responsibility, questions arise on aspects of hierarchy within
international human rights law. In reality there is also a continuing challenge in respect of the
judicialisation and legal enforceability of economic, social and cultural rights, evidenced inter
alia by a fundamental lack of political will. The growing economic development and political
strength of the Global South, a long-time supporter of such rights, may provide influences
that both promote and undermine those rights.
While the topics in this volume are underpinned by the common pursuit of realising
human rights through international law, a challenge of fragmentation and consistency exists
within international human rights law (i.e not just vis-à-vis general international law, as identified in the work of the UN International Law Commission on fragmentation). For example,
it is still contested whether the ‘respect, protect and fulfi l’ framework applies within international human rights law as a whole (cf. economic, social and cultural rights). The degree of
growing specialisation and professionalisation has bred highly expert communities on subtopics of human rights (e.g. business and human rights), and consequently, a knowledge
divide and sometimes scepticism on the part of some engaged with issues at the practical and
day-to-day level. The fragmentation tension also has an institutional dimension, for example,
presenting itself in the varied interpretations of human rights concepts and law across different
fora and bodies, both specialist and general, in multilateral, regional and national contexts.
The changing nature of confl ict globally – towards civil confl icts, insurgency and
terrorism, and away from inter-state war – has engaged human rights in areas traditionally
perceived as the reserve of other bodies of law, such as international humanitarian law.
This has also contributed to fragmentation tensions, as the overlap and complex relationship
of human rights with other regimes of law has needed to be tackled. Nevertheless, the real
challenge to the apparent acquis of international human rights law that the fi rst responses
to the atrocities of 11 September 2001 seemed to represent, have in the end been in large
measure successfully resisted.
Human rights have also had to coevolve with changes in social concepts and values. The
development and differentiation of sex and gender identity in the social sciences and everyday
life has challenged international human rights law. There have been normative and institutional advances to meet the changes, which have been controversial with some states,
4


The broad review of international human rights law

especially in the area of non-discrimination and rights of lesbian, gay, bisexual and transgender (LGBT) people.
In the contemporary context, human rights are primarily conceived and understood as
legal rights. This dominant perspective is partly attributable to a continuing deficit in a theory
of human rights beyond legal positivism, that is, the intellectual explanation and basis of ‘the
inherent dignity of the human being’ and universal norms. While a basis beyond law is
unresolved, there is a growing appreciation of the broader meaning of human rights within
the international legal order. The 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 humanitarian, criminal and
refugee law, which in turn contribute to the legal framework for the protection and
promotion of human rights. At a deeper level, the human rights project has also ‘humanised’
international law impacting on its general content and probably its very foundations. This
has occurred at both the doctrinal and structural levels (e.g. through obligations jus cogens and
erga omnes) and in the nature of international law and its interpretation. It reflects a move
towards a ‘living’ and constitutional approach to international law, particularly as based on
the UN Charter as a constitutive instrument. The Charter may now be considered to reflect
a positvisation of human rights within the international legal order.
The human rights project faces subterranean challenges that are interwoven into the fabric
of international law. These center on international and domestic politics, history, religion and
belief, culture and tradition, and have made it difficult for some globally, especially in
developing countries, to fully embrace the project. International human rights law does not
operate in a vacuum, but in the full context of national and international society. To date,
important debates and challenges to universalism, including from cultural relativism (and
sometimes even regionalism), have not been fully resolved. Democracy, in its most basic
sense, is not a guarantee of respect for human rights: there remains the potential tyranny of
the majority. For some, international human rights and religion are mutually exclusive and
hermeneutically sealed. Human rights have been successfully manipulated and the subject of
realpolitik by political elites and decision-makers. Regional human rights systems may
provide a counterweight to some of these problems, as evident with the Inter-American
system and that region’s lack of overt rejectionism or relativism. However, such regional
systems are absent in most areas of the world, and some of those that exist are substandard
or underdeveloped.
The existing gap between international human rights law and practice will only continue
to undermine the progress of the project. Despite the establishment and impressive development of an international system to protect human rights, the state-centric fundamentals of the
international system’s architecture are largely unchanged since the adoption of the UN
Charter and the Universal Declaration. While legal doctrine has developed to impressive
levels of sophistication in some areas, the means of implementation and enforcement have
generally lagged behind and maintained recommendatory in nature. The growing role of the
UN Human Rights Council, building after a shaky start on the achievements of its predecessor the Commission on Human Rights, while not transformative has been important and
progressive despite the strong political headwinds. However, human rights are still not fully
mainstreamed in the UN system. This is evident in the UN Security Council’s practice,
which largely treats human rights as a second tier issue, useful for ‘mopping up’ after violence,
even though today’s serious human rights violations often develop into tomorrow’s confl icts.
At the day-to-day level, the political will for full implementation of human rights is often
lacking, conditional or circumspect.
5


Scott Sheeran and Sir Nigel Rodley

There are also challenges that loom ahead for international human rights law to
effectively respond to fundamental global trends. While a number of such international
issues have been identified, their full impact on human rights is yet to be realised and
understood. These global trends include, for example, population growth and the need for
environmental protection (e.g. the right to food, water and sanitation) and proliferation in
technology and new media (e.g. the right to privacy).
In summary, as the human rights paradigm has moved – after unquantifiable sacrifice –
from the political and legal fringes to the (still contested) national and international
mainstream, there has been a tendency to look for new areas in which the concept can take
hold. The tendency has been met with varying degrees of success. What emerges from the
present volume, which explores many of the new territories, is the continuing relevance and
centrality of the core human rights paradigm that aims to protect the autonomy and dignity
of the individual human being from the potentially oppressive power of the organised
community.

6


Part II

Nature and evolution of
international human
rights law


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