Practical Guidance
Time-saving Solutions
Knowledgeable Insights

International Human Rights: Law, Policy, and Process, Fourth Edition (2009)

Select a format

eBook :epub
ISBN: 9780327176824
In Stock
Price
$129.99
QTY
International Order Inquiry

Product details

View a sample of this title using the ReadNow feature

To purchase a printed version of this title, please visit www.caplaw.com.

This comprehensive work provides an introduction to human rights law, policy, and process. International Human Rights begins with an overview, then discusses drafting and ratifying treaties, establishing institutions, using procedures for monitoring compliance and responding to gross violations, using adjudicative remedies, applying refugee and international labor law, relating human rights norms to terrorism, and exploring how the causes of violations can be used to improve human rights compliance. The Fourth Edition addresses a number of significant developments in the human rights arena including:
•   Emergence of international criminal law as a potential response to crimes against humanity;
•   Emergence of the United Nations Security Council as a significant human rights actor and the challenges it faces;
•   The role of human rights norms in responding to and regulating state responses to terrorism;
•   The capacity of human rights to respond to abuses by corporate actors;
•   The ability of human rights to respond to and account for violations committed in the context of ethnic hatred, internal conflict, and intrastate violence; and
•   The challenges faced by non-government human rights organizations in the post 9/11 context.

International Human Rights is also accompanied by a comprehensive documentary supplement, Selected International Human Rights Instruments and Bibliography for Research on International Human Rights Law. Professor Weissbrodt provides periodic updates to the casebook on the University of Minnesota Human Rights Library Web site (http://www1.umn.edu/humanrts/intlhr).

Professors and adjunct professors may request complimentary examination copies of LexisNexis law school publications to consider for class adoption or recommendation. Please identify the book(s) you wish to receive, provide your institutional contact information, and submit your request here.

This book also is available in a heavily discounted, three-hole punched, alternative loose-leaf version printed on 8 ½ x 11 inch paper with wider margins and with the same pagination as the hardbound book.

Authors / Contributors

Table of Contents

Summary of Contents xi
Table of Contents xiii
Preface xxxi
Acknowledgments xli
Contributions xliii


CHAPTER 1: INTRODUCTION TO INTERNATIONAL HUMAN RIGHTS

A. BRIEF HISTORICAL INTRODUCTION 2
1. Early Developments 2
2. World War I and the League of Nations 3
3. The Inter-War Years 5
4. World War II and the Beginning of the Modern Human Rights Movement 6

a. The Nuremberg and Tokyo Tribunals, and Control Council Law No. 10 7
b. The Creation of the United Nations: Dumbarton Oaks and San Francisco 7
c. The United Nations and Multilateral Protection of Human Rights 8

i. Codification 8
ii. Development of Human Rights Law within the U.N. Structure; Charter-Based Human Rights Bodies 10
iii. Development of Human Rights Law through Six U.N. Treaty-Based Human
Rights Committees 17

B. HUMAN RIGHTS IN INTERNATIONAL LAW 17<> 1. The U.N. and International Human Rights Law 17

a. Human Rights under the U.N. Charter 17
b. International Bill of Human Rights 18
c. Other U.N. Treaties 18
d. Related U.N. Instruments 20
2. Other Worldwide Treaties and Instruments 20
3. Customary International Law 22
4. Regional Organizations and Law-Making 23
a. European System 24
b. Inter-American System 24
c. Organization of African Unity 25
5. Domestic Implementation of Human Rights 26

C. CONCLUSION 28

CHAPTER 2: AN EXERCISE IN TREATY-MAKING

A. INTRODUCTION 33
B. DRAFTING EXERCISE 34
C. QUESTIONS 35


CHAPTER 3: AN EXAMPLE OF HUMAN RIGHTS TREATY-MAKING: CHILD SOLDIERS

A. INTRODUCTION 38
B. QUESTIONS 38
C. EVOLUTION OF INTERNATIONAL PROTECTION FOR CHILDREN IN ARMED CONFLICT 40

Declaration of the Rights of the Child (1924) 41

D. THE WORKING GROUP OF THE U.N. COMMISSION ON HUMAN RIGHTS FOR
THE DRAFTING OF THE CONVENTION ON THE RIGHTS OF THE CHILD
43

Lawrence J. LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human
Rights, Drafting the Convention 43

Lawrence J. LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human
Rights, Participation in Armed Conflict 45

Adam Lopatka, Report of the Working Group on the draft Convention on the rights of the child 47

E. THE ROLE OF NON-GOVERNMENTAL ORGANIZATIONS 50

Defence for Children International, Article 38 of the draft Convention on the Rights of the Child and the
Participation of Children in Armed Conflicts 50

Rddda Barnen (Save the Children Sweden), Ban the Use of Children asSoldiers in Armed Conflicts 52

International League for Human Rights, Human Rights at the United Nations: A New Treaty on
Children's Rights 54

Martin Macpherson, The Rights of the Child 55

Lawrence J. LeBlanc, The Convention on the Rights of the Child: United Nations Lawmaking on Human
Rights, Drafting the Convention, Subsequent Consideration of Article 38 57

F. THE WORKING GROUP OF THE U.N. COMMISSION ON HUMAN RIGHTS FOR
THE DRAFTING OF THE OPTIONAL PROTOCOL
62

Written statement submitted by the Friends World Committee for Consultation 62

Written statement submitted by Human Rights Watch 63

Report of the Working Group on the draft optional protocol to the Convention on the Rights of the Child
on involvement of children in armed conflict 65

G. ADOPTION OF THE OPTIONAL PROTOCOL AND FURTHER DEVELOPMENTS
73

Human Rights Watch, World Report 1999, Child Soldiers (1999) 73

Human Rights Watch, World Report 2000, Child Soldiers (2000) 75

President William J. Clinton, Remarks at the Signing of the Optional Protocol on Children in Armed
Conflict 81


CHAPTER 4: RATIFICATION AND IMPLEMENTATION OF TREATIES: THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

A. INTRODUCTION 84
B. QUESTIONS 84
C. THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 85
1. What Are Economic, Social and Cultural Rights? 85
2. Interpreting States' Obligations under the Covenant on Economic, Social and Cultural Rights 88

The Government of South Africa v. Grootboom 93

D. IMPLEMENTATION AND ENFORCEMENT 104

Committee on Economic, Social and Cultural Rights 104
Committee on Economic, Social and Cultural Rights, Report on the Eighteenth and Nineteenth Sessions
104

E. RATIFICATION OF TREATIES 110
1. How Do Governments Become Bound? 110

Vienna Convention on the Law of Treaties 110

Anne M. Williams, United States Treaty Law 112

2. Reservations 113

Vienna Convention on the Law of Treaties 113

Dinah Shelton, International Law 115

3. U.S. Ratification of Human Rights Treaties 117

Nigel S. Rodley, On the Necessity of United States Ratification of theInternational Human Rights
Conventions 119

a. Genocide Convention 123
b. Treaty Against Torture 124
c. Covenant on Civil and Political Rights 125
d. Racial Convention 127
e. Women's Convention 128
f. American Convention 128
4. Should the U.S. Ratify the Covenant on Economic, Social and Cultural Rights? 134

Philip Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for
an Entirely New Strategy 134

5. RatificationWith or Without Qualifications? 142

Four Treaties Pertaining to Human Rights: Message From the President of the United States 142

Burns Weston, U.S. Ratification of the International Covenant on Economic, Social and Cultural Rights:
With or Without Qualifications 145

F. TREATY RATIFICATION IN THE CONTEXT OF GLOBALIZATION 148

CHAPTER 5: STATE REPORTING UNDER INTERNATIONAL HUMAN RIGHTS TREATIES

A. INTRODUCTION 153
B. QUESTIONS 154
C. REPORTING PROCEDURES 156

1. The Civil and Political Covenant's Human Rights Committee 156
2. Reporting and Consideration Procedures 156

a. The Initial Report 156
b. Periodic Reports 160
c. Supplementary Reports 161
d. Emergency Reports 162
3. Distribution of Committee Reports and Comments 163

D. THE SITUATION IN IRAN 167
1. Creation of the Islamic Republic of Iran 167

Amnesty International, Iran: Violations of Human Rights 168

2. Human Rights Committee 171

Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the
Covenant: Iran (1982) 172

Report of the Human Rights Committee, Comments by the Iranian Representative during the
Committee's examination of the report (1982) 173

Report of the Human Rights Committee, General Comments on Article 7 of the Covenant 174

Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the
Covenant: Iran (1992) 176

Human Rights Committee, Observations and Questions Presented during the Committee's Examination
of the second Iranian report
1194th Meeting 177
1196th Meeting 177
1230th Meeting 178
3. Country Rapporteur Process of the U.N. Commission on Human Rights 179

Report by the Commission's Special Representative on the Human Rights Situation in Iran (1985) 180

4. Iranian Violations of International Law 184

E. THE INTERNATIONAL LAW PROHIBITION OF TORTURE AND OTHER CRUEL,
INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT
185

Standard Minimum Rules for the Treatment of Prisoners 185
Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment 186

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 186

Body of Principles for the Treatment of Detainees 188

1. Human Rights Committee Consideration of Communications Under the Optional Protocol
189
a. Committee Procedures 189
Report of the Human Rights Committee re: Consideration of Communications Under the
Optional Protocol 189
b. Committee Jurisprudence 196
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 196
Human Rights Committee Views on Communication No. 414/1990 197
2. European System 200

Ireland v. United Kingdom, European Commission 201

Ireland v. United Kingdom, European Court 202

Tyrer Case, European Court 203

Case of Selmouni v. France, European Court 206

Geneva Conventions of 1949, Common Article 3 209

Restatement (Third) of the Foreign Relations Law of the United States 209

3. U.N. Response to Amputations Under the Islamic Penal Code of Sudan 210

F. THEORETICAL FOUNDATIONS OF HUMAN RIGHTS: NATURAL LAW,
POSITIVISM, AND ISLAMIC PRINCIPLES
210

Myres S. McDougal, Harold D. Lasswell & Lung-Chu Chen, Human Rights and World Public Order: The
Basic Policies of an International Law of Human Dignity 211

S. Farooq A. Hassan, The Islamic Republic: Politics, Law and Economy 212

G. CULTURAL RELATIVISM AND INTERNATIONAL HUMAN RIGHTS LAW 216

Jack Donnelly, Cultural Relativism and Universal Human Rights 216

Nigel Purvis, Critical Legal Studies in Public International Law 218

CHAPTER 6: WHAT U.N. CHARTER-BASED MECHANISMS ARE AVAILABLE FOR VIOLATIONS OF HUMAN RIGHTS?

ECOSOC Resolutions 1235 and 1503; Thematic Procedures

A. INTRODUCTION 228
B. QUESTIONS 229
C. BACKGROUND ON BURMA (MYANMAR) 231

Open Society Institute, Burma: Country in Crisis 231

D. U.N. PROCEDURES FOR RESPONDING TO HUMAN RIGHTS VIOLATIONS 235
1. Development of Major U.N. Procedures 235

ECOSOC Resolution 728F 235
ECOSOC Resolution 1235 237
ECOSOC Resolution 1503 239

2. Overview of Resolution 1503 Procedure in Practice 241
3. Theme Procedures 246

Camille Giffard & Meagan Hrle, The United Nations Charter-Based Mechanisms 252

Report of the Working Group on Arbitrary Detention 262

Report by the Special Rapporteur on the right to food 263

Adverse effects of the illicit movement and dumping of toxic and dangerous products and wastes on the
enjoyment of human rights 264

Civil and Political Rights, Including Religious Intolerance 265

Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and
expression 265

Report of the Special Rapporteur on the independence of judges and lawyers 266

Civil and Political Rights Including the Questions of Torture and Detention 267

Report of the Special Rapporteur on violence against women, its causes and consequences
272

4. Further Remarks on 1235, 1503, Country Rapporteurs, and the Theme Procedures 273

Koen Davidse, The 48th Session of the UN Commission on Human Rights and UN Monitoring of Violations of Civil and Political Rights 275

Marc Bossuyt, The Development of Special Procedures of the United Nations Commission on Human Rights 276

Sandra Coliver, U.N. Machineries on Women's Rights 279

Situation of human rights in Myanmar 281

CHAPTER 7: HUMANITARIAN INTERVENTION

A. INTRODUCTION 288
B. QUESTIONS 288
C. U.N. MISSIONS TO MAINTAIN OR RESTORE PEACE AND SECURITY 291

U.N. Charter 291

United Nations, Basic Facts About the United Nations 292

1. The Consequences of Somalia and Rwanda 302

U.N. Secretary-General, Supplement to an Agenda for Peace 302

2. Rethinking Peacekeeping After Kosovo 304

U.N. Secretary-General, Address to the Opening Meeting of the United Nations General Assembly 304

U.N. Secretary-General, We the Peoples: The Role of the United Nations in the 21st Century
306

3. Growing Experience: Good and Bad Examples 308
David P. Forsythe, Human Rights and International Security: United Nations Field Operations Redux 308

4. How to Do It Better 312
Ian Martin, International Human Rights Field Presence: Past Experience, Current Methodology, Future
Prospects 312

Daphna Shraga, UN Peacekeeping Operations: Applicability of International Humanitarian Law and
Responsibility for Operations-Related Damage 316

D. REGIONAL MULTILATERAL INTERVENTION 323
1. ECOWAS's Interventions in Liberia and Sierra Leone 323
Jeremy Levitt, Humanitarian Intervention by Regional Actors in Internal Conflicts: The Cases of
ECOWAS in Liberia and Sierra Leone 323

2. NATO's Intervention in Kosovo 328
Michael J. Glennon, The New Interventionism: The Search for a Just International Law 331

Thomas M. Franck, Sidelined in Kosovo? The United Nations' Demise Has Been Exaggerated 336

Richard B. Bilder, Kosovo and the "New Interventionism": Promise or Peril? 338

E. UNILATERAL ACTION 345
Richard B. Lillich, A United States Policy of Humanitarian Intervention and Intercession 346

Abraham D. Sofaer, International Law and the Use of Force 349

Tom J. Farer & Christopher C. Joyner, The United States and the Use of Force: Looking Back to See
Ahead 352

Jules Lobel, Benign Hegemony?Kosovo and Article 2(4) of the U.N. Charter 357

CHAPTER 8:CAN HUMAN RIGHTS VIOLATORS BE HELD ACCOUNTABLE?

A. INTRODUCTION 366
B. QUESTIONS 366
C. RESPONDING TO PAST HUMAN RIGHTS VIOLATIONS 371
Diane F. Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior
Regime 371

Josi Zalaquett, Balancing Ethical Imperatives and Political Constraints: The Dilemma of New
Democracies Confronting Past Human Rights Violations 375

David Weissbrodt & Paul W. Fraser, Political Transitions and Commissions of Inquiry 377

John Dugard, Reconciliation and Justice: The South African Experience 380

D. NUREMBERG PRINCIPLES 390
1. The Nuremberg and Tokyo Tribunals 390
2. Control Council Law No. 10 and "Minor" Tribunals 391

E. AD HOC INTERNATIONAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA 394

1. The International Criminal Tribunal for the Former Yugoslavia (ICTY) 394
Diane F. Orentlicher, Legal Basis of the Tribunal for the Former Yugoslavia 398

2. The International Criminal Tribunal for Rwanda (ICTR) 399

3. Efficacy of the ad hoc Tribunals 403
Sean D. Murphy, Progress and Jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia 403

Organization of African Unity, Rwanda: The Preventable Genocide 404

Aryeh Neier, Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda 407

F. A PERMANENT INTERNATIONAL CRIMINAL COURT 417
Jerry Fowler, The Rome Treaty for an International Criminal Court: A Framework of International Justice
for Future Generations 418

David J. Scheffer, The United States and the International Criminal Court 423

Bartram S. Brown, U.S. Objections to the Statute of the International Criminal Court: A Brief Response
425

President William J. Clinton, Statement on Signature of the International Criminal Court Treaty 429

G. PROSECUTING HUMAN RIGHTS VIOLATORS IN FOREIGN NATIONAL COURTS
433
Ex parte Pinochet 433

Human Rights Watch, The Pinochet Precedent, How Victims Can Pursue Human Rights Criminals
Abroad 446

Menno Kamminga, The Exercise of Universal Jurisdiction in Respect of Gross Human Rights Offences
451

CHAPTER 9: INTERNATIONAL HUMAN RIGHTS FACT-FINDING

A. INTRODUCTION 456
B. QUESTIONS 456
C. BACKGROUND: THE DEMOCRATIC REPUBLIC OF CONGO 460
1. History of the Congo 460
2. Fact-finding in the Congo 462
Human Rights Watch, Democratic Republic of Congo: What Kabila Is Hiding 463

D. FACT-FINDING PROCEDURES 465
1. Preparation for an On-Site Investigation 466
2. Methods of On-Site Fact-finding 469
3. Analysis, Verification, Follow-up, and Reporting 480
4. U.S. State Department Country Reports as Fact-finding Exercises 482
Department of State, Country Reports on Human Rights Practices for 1999 483

E. EXPERIENCE OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS 485
Inter-American Commission on Human Rights, Third Report on the Human Rights Situation in Colombia 485

Thomas Buergenthal, Robert Norris, & Dinah Shelton, Protecting Human Rights in the Americas: Selected Problems 491

Inter-American Commission, Case 9265 493

Edmundo Vargas, Visits on the Spot: The Experience of the Inter-American Commission on Human Rights 498

F. FACT-FINDING WITHOUT ON-SITE OBSERVATION 502
Asia Watch & Minnesota Lawyers International Human Rights Committee, Human Rights in the Democratic People's Republic of Korea 504

G. IMPACT OF FACT-FINDING INVESTIGATIONS 511
1. Todd Howland, Mirage, Magic, or Mixed Bag? The United Nations High Commissioner for Human Rights' Field Operation in Rwanda 511
2. Assessing the Impact of Fact-finding Investigations 515
Sieglinde Grdnzer, Changing Discourse: Transnational Advocacy Networks in Tunisia and Morocco 516
3. Fact-finding for United States Violations of Human Rights 522

CHAPTER 10: HOW DOES U.S. FOREIGN POLICY INFLUENCE HUMAN RIGHTS IN OTHER COUNTRIES?


A. INTRODUCTION 526
B. QUESTIONS 526
C. INTERNATIONAL DUTIES 528
1. U.S. Duties as a U.N. member-nation 528
a. The U.N. Charter 528
b. International Human Rights Treaties 529
D. INCORPORATING HUMAN RIGHTS GOALS INTO U.S. FOREIGN POLICY: FROM
JIMMY CARTER TO GEORGE W. BUSH
530
1. The Origins of Human Rights in U.S. Foreign Policy 530
2. The Creation of General Legislation and the Helsinki Commission 530
3. Implementing General Human Rights Legislation Under the Carter Administration 532
Jimmy Carter, Remarks Commemorating the 30th Anniversary of the Signing of the Universal
Declaration of Human Rights 532
4. A New Theme for Human Rights Foreign Policy: Promoting Democracy Abroad 537
Ronald Reagan, Speech to the House of Commons 537
5. The End of the Cold War 542
James Baker, Secretary of State, Hearing of the Senate Foreign Relations Committee 542
6. Harmonizing Human Rights With Democracy-Building and Economic Development 544
Madeleine Albright, Press Briefing on the Release of Country Reports on Human Rights Practices 545
7. A New View or More of the Same? 551

E. DEFINING AND IMPLEMENTING U.S. HUMAN RIGHTS FOREIGN POLICY 552
1. The Role of the Administration 552
a. Diplomatic Efforts and Efficacy 552
David D. Newsom, The Diplomacy of Human Rights: A Diplomat's View 553
2. Legislation and the Congressional Role 556
a. Country-Specific Legislation 557
b. Legislation and the Presidential Role: Certification Requirements 558
c. "Carrot" Legislation 558
d. Legislation Creating Special Commissions 559
e. Legislation Regarding Use of "Voice and Vote" in International Financial Institutions
560
f. Other Congressional Tools 562
3. Economic Sanctions 564
Stuart Eizenstat, Under Secretary for Economic, Business, and Agricultural Affairs 564

CHAPTER 11: THE INTER-AMERICAN SYSTEM AND THE INTERPRETATION AND APPLICATION OF HUMAN RIGHTS INSTRUMENTS


The Martinez Case and the Inter-American Commission

A. INTRODUCTION 578
B. QUESTIONS 578
C. THE MARTINEZ CASE 579
D. LAW GOVERNING SELF-DETERMINATION AND DISCRIMINATION AGAINST WOMEN 583
1. International Law 583
American Declaration of the Rights and Duties of Man 583

American Convention on Human Rights 583

Charter of the Organization of American States 584

Protocol of Buenos Aires 584

Convention concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169)
584

Proposed American Declaration on the Rights of Indigenous Peoples 585

Draft Declaration on the Rights of Indigenous Peoples 587

Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
589

2. U.S. Law 590

E. THE INTER-AMERICAN COMMISSION 591
1. Procedures of the Inter-American Commission 591
The Human Rights Situation of the Indigenous People in the Americas 591
2. Jurisprudence of the Inter-American Commission 598
a. Does the American Declaration of the Rights and Duties of Man Apply to the United States? 598
b. Cases Involving Indigenous Rights 600
3. Typical Cases in the Inter-American Commission 604

F. ADVISORY AND CONTENTIOUS JURISDICTION OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS 608
Thomas Buergenthal, The Inter-American Court of Human Rights 608

Thomas Buergenthal, The Advisory Practice of the Inter-American Human Rights Court 612

G. INTER-AMERICAN JURISPRUDENCE CONCERNING AMNESTY LAWS 615
H. OTHER REGIONAL SYSTEMS 617
1. The Organization of African Unity 617
2. Other Regional Structures 620

CHAPTER 12: THE EUROPEAN HUMAN RIGHTS SYSTEM

A. INTRODUCTION 623
B. QUESTIONS 625
C. AREAS OF PROTECTION IN THE EUROPEAN COURT OF HUMAN RIGHTS 628
1. Homosexuality 628
Dudgeon v. United Kingdom 628
Lustig-Prean and Beckett v. United Kingdom 632
2. Death Penalty 641
3. Corporal Punishment 645

D. REMEDIES IN THE EUROPEAN COURT OF HUMAN RIGHTS 647
1. Bringing a Case 647
2. Damage Awards 650
Lustig-Prean and Beckett v. United Kingdom 652
3. Parallel Remedies Outside the European System 654

E. INTERSTATE HUMAN RIGHTS CASES IN THE EUROPEAN SYSTEM 658
F. HUMAN RIGHTS LAW IN EUROPE APART FROM THE EUROPEAN CONVENTION 660
1. European Union 660
2. Organization for Security and Cooperation in Europe (OSCE) 663

CHAPTER 13: DOMESTIC REMEDIES FOR HUMAN RIGHTS VIOLATIONS WITHIN THE U.S.

A. INTRODUCTION 668
Justice Harry Blackmun, Comments 670
B. QUESTIONS 672
C. TREATY PROVISIONS CONCERNING JUVENILE EXECUTION 674
1. Treaties Ratified by the United States 674
Geneva Convention: Protection of Civilian Persons in Time of War 674

International Covenant on Civil and Political Rights 674

2. Treaties Signed But Not Ratified by the United States 675