Written by leading experts in the field, International Human Rights Law explores the essentials of international human rights law, from foundational issues to substantive rights and systems of protection. It also addresses contemporary challenges, such as climate change and pandemics, ensuring students are aware of the current and future importance of these issues. A variety of perspectives bring this multifaceted and sometimes contentious subject to life, making the book the ideal companion for students and practitioners of human rights. Breadth and depth of coverage provide a thorough and complete guide for students of international human rights law. Each chapter is written by an expert in their respective field. The book includes useful features such as chapter summaries, suggestions for further reading, and questions for reflection to stimulate further thinking on the issues considered. New to this fourth edition are chapters on rights and obligations, climate change, and pandemics.
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Book
Edited by Daniel Moeckli, Sangeeta Shah, Sandesh Sivakumaran, and David Harris
Chapter
22. Sustainable development and human rights
This chapter focuses on sustainable development, part of Agenda 2030 of the United Nations, and human rights. This agenda is now the focal point of technical assistance and development programmes around the world and, crucially, applies to all States, irrespective of their state of development. The UN Sustainable Development Goals overlap with, and complement, human rights. Indeed, the associated targets and indicators reflect many core human rights obligations already incumbent on States. Whilst the Sustainable Development Goals lack the force of law underpinning human rights treaties, there is little doubt that strengthening human rights in a State will support progress towards sustainable development.
Chapter
27. International Refugee Law
Alice Edwards
This chapter examines the relationship between international refugee law and international human rights law. It first explains the purpose and scope of international refugee law. It then identifies the five fundamental elements of the Refugee Convention, and discusses other important parameters of international refugee law more broadly. The chapter then explores the relationship at the macro level. It analyses specific aspects of refugee law—namely, the definition of a refugee, the prohibition of refoulement, refugee rights, and the ending of refugee status and solutions—and how international human rights law informs them. Through this approach the chapter tackles several modern challenges such as rescue at sea, climate-related refoulement, and border closures of the Covid-19 pandemic.
Chapter
2. Justifications
Samantha Besson
This chapter discusses the importance of justifying human rights, particularly in response to critics. It explains the following: why we need to justify human rights; what it means to justify human rights; what the different justifications for human rights may be; and what some of the implications of the justifications of human rights may be for other key issues in human rights theory.
Chapter
6. Scope of Application
Sarah Joseph and Barrie Sander
A state is not responsible for every act or omission which harms human rights, regardless of the perpetrator or the location. Therefore, it is necessary to examine the scope of application of a state’s obligations under international human rights law. That is, when do human rights duties apply? This chapter first defines key concepts and identifies the duty-bearers and beneficiaries of human rights law. Then it explains the instances in which a state will be held responsible for the actions or omissions of particular persons or entities. Finally, it addresses the territorial scope of a state’s human rights duties.
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18. Group Rights
Robert McCorquodale
This chapter discusses the definition, exercise, and limitations of certain group rights, including peoples with the right to self-determination, minorities, and indigenous peoples. The right to self-determination protects a group as a group entity with regard to their political participation, as well as their control over their economic, social, and cultural activity as a group. Rights of minorities can be seen as both an individual and a group right. Finally, the growing recognition of the rights of indigenous peoples is considered.
Chapter
15. Sexual Orientation and Gender Identity
Michael O’Flaherty
This chapter examines the human rights protections afforded to sexual and gender minorities. It shows that the jurisprudence focuses on issues of non-discrimination and privacy, and that important human rights protections can also be derived from the range of other civil, political, economic, social, and cultural human rights of general application. The chapter examines a recent exercise in the clarification of the application of human rights law concerning issues of sexual orientation, gender identity, and sex characteristics: the Yogyakarta Principles.
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9. Monitoring, implementing, and enforcing human rights
This chapter examines the international system for monitoring the implementation of human rights within States. With a focus on the monitoring and enforcement mechanisms of the United Nations, the chapter covers the periodic State reports system, as well as both the inter-State and the individual complaints systems. Challenges with the systems are also considered. Furthermore, the chapter describes the role of rapporteurs and special investigations through commissions of inquiry and fact-finding missions, which are increasingly deployed by the UN. Other UN entities which contribute to the protection and promotion of rights and freedoms are also discussed.
Chapter
28. Non-State Actors
Andrew Clapham
It is increasingly recognized that human rights law has to address the challenge posed by non-state actors. This chapter starts with a reflection on how the term ‘non-state actor’ is used and why it is appropriate to look at the contemporary impact of non-state actors on the enjoyment of human rights. It then recalls the positive obligations of states to protect those within their jurisdiction and elsewhere from abuses by non-state actors and how states provide for redress at the national level. In the next part, it considers the human rights obligations of different non-state actors: international organizations, corporations, and armed non-state actors.
Chapter
1. Human rights: the idea and the law
Without assuming prior legal knowledge, books in the Directions series introduce and guide readers through key points of law and legal debate. Questions, discussion points, and thinking points help readers to engage fully with each subject and check their understanding as they progress and knowledge can be tested by self-test questions and exam questions at the chapter end. This chapter discusses the idea of human rights, as well as a range of political and constitutional issues to which they give rise. The general history of the international protection of human rights from which the UK system is derived is also introduced. The chapter furthermore presents examples of human rights abuses specific to the UK that are, to some extent, at the mild end of the full spectrum of human rights abuses found in other parts of Europe or in the rest of the world. The concept of human rights assumes that all reasonable human beings share the feeling that, in whatever they do, they need to accord proper respect to the dignity of all individual human beings. States and governments, in particular, must ensure that individual dignity is respected in their laws and practices.
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13. Detention and Trial
Sangeeta Shah
This chapter discusses the protections afforded by international human rights law to the right to liberty and security of the person and the right to a fair trial. The right to liberty regulates powers of detention and provides safeguards against ill-treatment of detainees. An extreme form of arbitrary detention is enforced disappearance. The right to a fair trial sets out how court proceedings should be conducted and court systems organized. In addition, there are specific protections for those who are suspected of having committed a criminal offence.
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16. Women’s Rights
Dianne Otto
This chapter examines women’s rights and new developments related to gender identity. It describes the treatment of women in international law prior to the adoption of the UN Charter, in order to highlight the significance of the subsequent shift to the promotion of women’s equality. It examines the non-discrimination approach favoured by the drafters of the founding human rights instruments, highlighting the importance of the approach as well as some of its limitations. The chapter goes on to examine the innovative approach taken in the Convention on the Elimination of All Forms of Discrimination Against Women, which promoted a strong version of women’s substantive equality. The strategy of ‘gender mainstreaming’, adopted in the 1990s, sought to reinterpret mainstream human rights to be inclusive of women’s experiences. The chapter concludes by highlighting some continuing obstacles presented by the law itself, which prevent women and other gender identities from successfully claiming and enjoying human rights.
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24. Current issues: non-State actors
This chapter look towards the future agenda for international human rights and provides an overview of issues that are likely to characterize the evolution of international human rights. Whilst States remain the primary obligees, required to take all necessary measures to respect, promote, and protect human rights in fulfilment of their treaty obligations, a number of other entities are increasingly powerful and influential. Securing their support for advancing human rights is important, as is ensuring that such entities act in accordance with human rights and can be held to account for violating actions. This chapter considers non-State actors, including non-State armed groups and businesses. The roles of international organizations when engaged in activities in other States and non-governmental organizations are considered briefly.
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26. International Criminal Law
Robert Cryer
This chapter first discusses the overlaps between human rights and international criminal law, focusing on four international crimes: genocide, crimes against humanity, war crimes, and aggression. It then considers prosecutions and non-prosecutorial options, concluding with an analysis of the pros and cons of using international criminal law to protect human rights.
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3. Critiques
Marie-Bénédicte Dembour
This chapter reviews six critiques of human rights, deriving from realist, utilitarian, Marxist, particularist (cultural relativist), feminist, and post-colonial theoretical perspectives. The first three critiques emerged in reaction to the (successive) French Declarations of the Rights of Man of the late eighteenth century; the last three were fully developed in reaction to the International Bill of Rights enacted after the Second World War. Each of these critiques reveals a gap between what human rights claim to be or achieve, on the one hand, and what human rights are or do in practice, on the other.
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30. Poverty
Stephen P Marks
This chapter, which addresses the challenge posed by poverty to human rights protection, first explains the meaning of ‘poverty’ and explores its relationship to human rights, development, and social justice. It also considers the context of globalization, and then illustrates the ways in which human rights concerns diverge from those of development and poverty reduction. The chapter examines how economists think about poverty and human rights, and analyses the thinking of governors of central banks and ministers of finance. Next, it addresses the convergence between human rights and anti-poverty agendas, beginning with some economic thinking that is congruent with human rights, and then turns to policies aiming to combat poverty using human rights tools.
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21. The Americas
Thomas M Antkowiak
This chapter considers human rights protection across the Americas, and focuses in particular on the Organization of American States (OAS). The chapter begins with a historical overview of the OAS. The OAS has drafted and promulgated several human rights documents and treaties, including the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights, as well as others. Having introduced the main instruments for the protection of human rights, the chapter then considers the two main OAS institutions that are mandated to promote and protect human rights: the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Finally, challenges to the Inter-American system are discussed.
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8. Equality and Non-Discrimination
Daniel Moeckli
The principle of equality and non-discrimination has gained a prominent status in virtually every liberal democratic state as well as in international law. However, what this fundamental rule entails in practice is difficult to establish. The challenge is to give substance to the abstract notion of equality by translating it into concrete legal formulations that clarify which forms of unequal treatment are legitimate because they are based on morally acceptable criteria and which ones are wrongful. This chapter explains how this challenge has been addressed in international human rights law. It first discusses the meaning of equality and non-discrimination and gives an overview of the different norms guaranteeing equality and non-discrimination in international human rights law, followed by an explanation of the concepts of direct and indirect discrimination. The chapter then considers the requirements for a difference in treatment to be justified under international human rights law and sets out the various obligations that the right to equality imposes on states, in particular their duty to take positive action to ensure everyone can enjoy that right.
Chapter
9. Integrity of the Person
Carla Ferstman
This chapter examines the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment and the right to life. These are fundamental rights which stem from the concepts of human dignity and the integrity of the person, both foundational principles of human rights law. Following explanations of both these principles, the chapter sets out the meaning and content of the right to be free from torture and other cruel, inhuman, or degrading treatment or punishment. It then explains the right to life, analysing similarly the content of the right and its limitations and how it has been interpreted in recent jurisprudence and treaty body commentaries.
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31. Climate Change
Lavanya Rajamani
Climate change is considered to be the greatest threat to human rights of our generation. This chapter discusses the challenges posed by climate change and mitigation measures to the enjoyment of human rights and the obligations that states have under international human rights law to respond to these challenges. It introduces international climate change law and how this has developed to accommodate human rights concerns. The chapter ends by surveying the recent turn to national and international litigation, whereby human rights arguments have been deployed to force states to adequately respond to climate change.
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