Litigating Transnational Human Rights Obligations: Alternative Judgments PDF
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Litigating Transnational Human Rights Obligations Human rights have traditionally been framed in a vertical perspective with the duties of States confi ned to their own citizens or residents. Obligations beyond this territorial space have been viewed as either being absent or mini- malistic at best. However, the territorial paradigm has now been seriously challenged in recent years in part because of the increasing awareness of the ability of States and other actors to impact human rights far from home both positively and negatively. In response to this awareness various legal principles have come into existence setting out some transnational human rights obliga- tions of varying degrees. However, notwithstanding these initiatives, judicial institutions and adjudicating bodies continue to show an enormous hesitancy in moving beyond a territorial reading of international human rights law. This book addresses the issue in an innovative and challenging way by crafting legally sound hypothetical “judgments” from a number of adjudica- tory fora. The judgments are based on real world situations where extrater- ritorial or transnational issues have emerged, and draw on existing international human rights law, albeit a progressive interpretation of this law. The book shows that there are a number of judicial and quasi-judicial systems where transnational human rights claims can, and should be enforced. These include: the World Trade Organization; the International Court of Justice; the regional human rights monitoring bodies; domestic courts; and the UN treaty bodies. Each hypothetical judgment is accompanied by detailed com- mentary placing it in context in order to show how international human rights law can address issues of a transnational character. The book will be of interest to human rights scholars and lawyers, prac- titioners, activists and aid offi cials. Mark Gibney is the Belk Distinguished Professor at University of North Carolina Asheville. Since 1984, Gibney has directed the Political Terror Scale (PTS), which measures levels of physical integrity violations in more than 185 countries (politicalterrorscale.org). Wouter Vandenhole holds the UNICEF Chair in Children’s Rights at the Faculty of Law of the University of Antwerp (Belgium) and is the Co-Director of the Law and Development Research Group. Routledge Research in Human Rights Law Available titles in this series include: The Right to Development in International Law The Case of Pakistan Khurshid Iqbal Global Health and Human Rights Legal and Philosophical Perspectives John Harrington and Maria Stuttaford The Right to Religious Freedom in International Law Between Group Rights and Individual Rights Anat Scolnicov Emerging Areas of Human Rights in the 21st Century The Role of the Universal Declaration of Human Rights Marco Odello and Sofi a Cavandoli The Human Right to Water and its Application in the Occupied Palestinian Territories Amanda Cahill International Human Rights Law and Domestic Violence The Effectiveness of International Human Rights Law Ronagh McQuigg Human Rights in the Asia-Pacifi c Region Towards Institution Building Hitoshi Nasu and Ben Saul Human Rights Monitoring Mechanisms of the Council of Europe Gauthier de Beco The Positive Obligations of the State under the European Convention of Human Rights Dimitris Xenos Vindicating Socio-Economic Rights International Standards and Comparative Experiences Paul O’Connell The EU as a ‘Global Player’ in Human Rights? Jan Wetzel Regulating Corporate Human Rights Violations Humanizing Business Surya Deva The UN Committee on Economic, Social and Cultural Rights The Law, Process and Practice Marco Odello and Francesco Seatzu State Security Regimes and the Right to Freedom of Religion and Belief Changes in Europe Since 2001 Karen Murphy The European Court of Human Rights in the Post-Cold War Era Universality in Transition James A. Sweeney The United Nations Human Rights Council A Critique and Early Assessment Rosa Freedman Children and International Human Rights Law The Right of the Child to be Heard Aisling Parkes Litigating Transnational Human Rights Obligations Alternative Judgments Mark Gibney and Wouter Vandenhole Forthcoming titles in this series include: Jurisdiction, Immunity and Transnational Human Rights Litigation Xiaodong Yang This page intentionally left blank Litigating Transnational Human Rights Obligations Alternative Judgments Edited by Mark Gibney and Wouter Vandenhole The European Science Foundation (ESF) provides a platform for its Member Organisations to advance science and explore new directions for research at the European level. Established in 1974 as an independent non-governmental organisation, the ESF currently serves 78 Member Organisations across 30 countries. First published 2014 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 © 2014 Mark Gibney and Wouter Vandenhole The right of Mark Gibney and Wouter Vandenhole to be identifi ed 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, with- out permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation 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 Litigating transnational human rights obligations : alternative judgements / Mark Gibney and Wouter Vandenhole. pages cm. – (Routledge Research in Human Rights Law) Includes bibliographical references and index. ISBN 978-0-415-85811-3 (hbk) – ISBN 978-0-203-79747-1 (ebk) 1. Human rights. I. Vandenhole, Wouter. II. Title. K3240.G533 2014 342.08’5–dc23 2013020572 ISBN: 978-0-415-85811-3 (hbk) ISBN: 978-0-203-79747-1 (ebk) Typeset in ITC New Baskerville by Cenveo Publisher Services Contents Preface xi List of Contributors xiii 1 Introduction: Transnational Human Rights Obligations 1 W OUTER VANDENHOLE AND MARK GIBNEY PART I International Economic Governance Bodies 11 2 U .S. Trade Sanctions (World Trade Organization, Panel Report) 13 C LAIRE BUGGENHOUDT 3 B iofuels and the Right to Food (World Trade Organization, Panel Report) 31 ALEXIA HERWIG 4 Land Grabbing and Gender Issues (International Finance Corporation, Compliance Advisor Ombudsman) 49 JOSS SAUNDERS PART II Global (Human Rights) Monitoring Bodies 61 5 P utting an End to Victims Without Borders: Child Pornography (Committee on the Rights of the Child) 63 GAMZE ERDEM TÜRKELLI 6 Shared Responsibility for the Right to Health (Committee on Economic, Social and Cultural Rights) 79 RACHEL HAMMONDS AND GORIK OOMS viii Contents 7 Economic, Social and Cultural Rights of the Purak Peoples (Committee on Economic, Social and Cultural Rights) 99 J ERNEJ LETNAR CˇERNICˇ 8 “Only the Little People Pay Taxes”: Tax Evasion and Switzerland’s Extraterritorial Obligations to Zambia (Committee on Economic, Social and Cultural Rights) 116 NICHOLAS J. LUSIANI 9 Labour Rights in a Transnational Perspective (Committee on Economic, Social and Cultural Rights) 135 A RNE VANDENBOGAERDE 10 Climate Change (Human Rights Committee, Ad Hoc Conciliation Commission) 155 MARGREET WEWERINKE 11 Development Assistance to Education for Children with Disabilities (Committee on the Rights of Persons with Disabilities) 172 WOUTER VANDENHOLE 12 Land Grabbing in Uganda by a Multinational Corporation (World Court of Human Rights) 186 CHRISTOPHER MBAZIRA 13 Structural Adjustment and Farmers’ Suicides in India (International Court of Justice) 202 AMITA PUNJ 14 (Economic) Crimes Against Humanity (International Criminal Court, Appeals Chamber) 221 MICHAEL WABWILE PART III Regional Human Rights Monitoring Bodies 237 15 Public Duties for Private Wrongs: Regulation of Multinationals (African Commission on Human and Peoples’ Rights) 239 TAKELE SOBOKA BULTO 16 Forced Evictions in Zimbabwe (African Commission on Human and Peoples’ Rights) 261 KHULEKANI MOYO Contents ix 17 Land Grabbing in South America (Inter-American Human Rights Commission) 283 ANA MARÍA SUÁREZ-FRANCO 18 Enforcing Extraterritorial Social Rights in the Eurozone Crisis (European Committee of Social Rights) 302 MATTHIAS SANT’ANA 19 Military Interventions in Non-European States (European Court of Human Rights) 325 NICO MOONS PART IV Domestic Courts 339 20 Extraordinary Rendition (U.S. Supreme Court) 341 MARK GIBNEY Index 358
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