International Human Rights Law: Six Decades after the UDHR and Beyond

588 Pages·2010·0.56 MB·English

by  Mashood A. Baderin

International Human Rights Law
Six Decades after the UDHR and Beyond
Edited by
Mashood A. Baderin and Manisuli Ssenyonjo
InternatIonal human rIghts law
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International human rights law
six Decades after the uDhr and Beyond
Edited by
mashooD a. BaDerIn
School of Oriental and African Studies (SOAS), University of London, UK
manIsulI ssenyonjo
Brunel University, UK
© mashood a. Baderin and manisuli ssenyonjo 2010
all rights reserved. no part of this publication may be reproduced, stored in a retrieval system or
transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise
without the prior permission of the publisher.
mashood a. Baderin and manisuli ssenyonjo have asserted their right under the Copyright, Designs and
Patents Act, 1988, to be identified as the editors of this work.
Published by
ashgate Publishing limited ashgate Publishing Company
wey Court east suite 420
union road 101 Cherry street
Farnham Burlington
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england usa
www.ashgate.com
British Library Cataloguing in Publication Data
International human rights law : six decades after the uDhr
and beyond.
1. human rights. 2. human rights--history.
I. Baderin, mashood a. II. ssenyonjo, manisuli.
341.4'8-dc22
Library of Congress Cataloging-in-Publication Data
International human rights law : six decades after the uDhr and beyond / by mashood a. Baderin
and manisuli ssenyonjo.
p. cm.
Includes bibliographical references and index.
ISBN 978-1-4094-0359-3 (hardback) -- ISBN 978-1-4094-0360-9 (ebook)
1. human rights. I. Baderin, mashood a. II. ssenyonjo, manisuli.
K3240.I5795 2010
341.4'8--dc22
2010016243
ISBN 978 1 4094 0359 3 (hbk)
ISBN 978 1 4094 0360 9 (ebk)II
Contents
Foreword by David Harris ix
List of Contributors xi
PARt I IntRoDUCtIon
1 Development of International human rights law Before and after the uDhr 3
Mashood A. Baderin and Manisuli Ssenyonjo
PARt II ConCePtS AnD noRMS
2 International human rights: universal, relative or relatively universal? 31
Jack Donnelly
3 economic, social and Cultural rights 49
Manisuli Ssenyonjo
4 Civil and Political rights 89
Sarah Joseph
5 simple analytics of the right to Development 107
Arjun Sengupta
6 Right to a Healthy Environment in Human Rights Law 115
jona razzaque
7 the right to a Peaceful world order 137
Nsongurua J. Udombana
8 Minority Rights 60 Years after the UDHR: Limits on the Preservation
of Identity? 155
Tawhida Ahmed and Anastasia Vakulenko
9 Intellectual Property rights, the right to health, and the uDhr: Is
reconciliation Possible? 173
Robert L. Ostergard, Jr. and Shawna E. Sweeney
10 Brave new world? human rights in the era of globalization 195
Paul O’Connell
vi International Human Rights Law
PARt III MeCHAnISMS AnD IMPLeMentAtIon
11 the united nations human rights system 215
Rhona K.M. Smith
12 the african regional human rights system 235
Olufemi Amao
13 the Inter-american regional human rights system 253
Jo M. Pasqualucci
14 the european Convention on human rights 271
Alastair Mowbray
15 human rights in the International Court of justice 289
Gentian Zyberi
16 The Role of National Human Rights Institutions 305
Rachel Murray
17 Institutional Partnership or Critical seepages? the role of human rights
ngos in the united nations 317
Dianne Otto
18 Islamic law and the Implementation of International human rights law:
a Case study of the International Covenant on Civil and Political rights 337
Mashood A. Baderin
19 towards an International Court of human rights? 359
Gerd Oberleitner
20 multi-state responsibility for extraterritorial Violations of economic,
social and Cultural rights 371
Todd Howland
PARt IV ReSPonSIBILItIeS AnD ReMeDIeS
21 state responsibility for human rights 397
Danwood Mzikenge Chirwa
22 state Compliance with the recommendations of the african Commission
on human and Peoples’ rights 411
Frans Viljoen
Contents vii
23 Individual responsibility and the evolving legal status of the Physical
Person in International human rights law 431
Ilias Bantekas
24 the International Criminal Court and Individual responsibility of senior
State Officials for International Crimes 445
Manisuli Ssenyonjo
25 the right to an effective remedy: Balancing realism and aspiration 477
Sonja B. Starr
26 Protecting Human Rights in Emergency Situations: The Example of the
right to education 499
Vernor Muñoz Villalobos
27 Protect, Respect, and Remedy: The UN Framework for Business and
human rights 519
John Gerard Ruggie
PARt V ‘AnD BeyonD’
28 a Future for human rights law 541
Robert McCorquodale
Index 553
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Foreword
the universal Declaration of human rights is one of the most important documents in human
history. Quite apart from its moral and political impact, in international law it has been the catalyst
for most later developments in human rights protection and it has been instrumental in abandoning
the idea that the treatment of nationals is a matter within a state’s sovereignty, or, in lord
Palmerston’s words, that nationals can be ‘boiled in oil’ without this being the proper concern of
other states. the Declaration has also been incorporated into national constitutions and extensively
applied by national courts, and remains an inspiration for those subject to oppression.
Quite remarkable is the foresight of the drafters in formulating a list of human rights that has
fully stood the test of time. with very few exceptions, all human rights are there. even later third
generation human rights such as the rights to development, to the environment and to peace can, in
mr justice Douglas’s phrase in the griswold case, be found at least in the Declaration’s ‘penumbra’.
what was not so clearly anticipated was the current emphasis upon the positive obligations of
states and the related endeavours to bring non-state actors within the reach of international human
rights law. It also took later treaty developments to provide measures, however imperfect, for the
enforcement of international human rights law. If the division in the two Covenants between civil
and political rights and economic, social and cultural rights held back the provision of enforcement
mechanisms for some kinds of rights, this was not the fault of the Declaration, which includes both
groupings of rights on an equal footing.
All of these are matters that are impressively considered in the chapters of the present book.
There are nearly thirty chapters on key rights and issues, written by leading human rights authors,
containing many valuable insights and reflections. Particularly notable is the book’s critical
emphasis, examining realistically both what has been achieved since 1948, and remains to be
achieved, and the prospects for the future. It is this critical dimension that will give the book lasting
value.
David harris
Professor emeritus and Co-Director
human rights law Centre
school of law
university of nottingham