Texts and Materials on International Human Rights

617 Pages·2013·2.183 MB·English

by  Rhona K.M. Smith

TEXTS AND
MATERIALS
ON INTERNATIONAL
HUMAN RIGHTS
T E
HIRD DITION
RHONA K. M. SMITH
Texts and Materials on International
Human Rights
THIRD EDITION
Texts and Materials on International Human Rights offers a carefully tailored overview of the subject that
covers sources and theories,institutions and structures,and substantive rights. The third edition is
fully updated to include all key developments in the law, in particular issues around reform in the
UN and the topical application of human rights around the world.
This collection of materials offers a comprehensive overview of the institutional structures
relevant to international human rights law, crucial to the understanding of how law works in this
challenging area. Designed to guide students through the fundamental texts for this subject, the
author’s commentary contextualises each extract to explain its relevance, while highlighted further
reading makes links to cutting edge academic commentary to provide next steps for student
research.
Offering a clear text design that distinguishes between materials and author commentary, and
including refl ective questions throughout to aid understanding, this book is ideal for students
seeking to engage with the key issues in the study of International Human Rights.
R hona K.M. Smith is Professor of International Human Rights at Northumbria University.
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Texts and Materials on
International Human
Rights
THIRD EDITION
Rhona K.M. Smith
Third edition published 2013
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2013 Rhona K.M. Smith
The right of Rhona K.M. Smith to be identifi ed as author of this work has been asserted by
her in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.
Every effort has been made to request permission to reproduce material under copyright.
If any material has been inadvertently overlooked, the publishers will endeavour to make
the necessary arrangements.
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 identifi cation and explanation without intent to infringe.
Previous editions published by Routledge
First edition 2007
Second edition 2010
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library.
Library of Congress Cataloguing in Publication Data
A catalog record for this book has been requested.
ISBN 13: 978–0–415–62190–8 (hbk)
ISBN 13: 978–0–415–54068–1 (pbk)
ISBN 13: 978–0–203–41005–9 (ebk)
Typeset in Joanna MT
by Refi necatch Ltd, Bungay, Suffolk
Outline Contents
Preface x
Table of Cases xiii
Table of Legislation xix
Table of Treaties and Instruments xxiii
1 Sources of International Human Rights 1
2 Key Concepts: Universality, Interdependence and Categories of Rights 28
3 States and Treaty Obligations 59
4 Human Rights Organisations and Key Institutions 92
5 Monitoring and Enforcing Human Rights: Extra-Conventional Mechanisms 141
6 Implementing Human Rights Treaties: Committees and Courts 182
7 National Institutions for Protecting and Promoting Human Rights 227
8 Extending the Duties to Protect and Respect Human Rights: Non-State Actors 258
9 Reforming the International and Regional Human Rights Systems 300
10 Protecting Children 341
11 Detainees, Prisoners and Convicts 376
12 Indigenous Peoples and their Rights 429
13 The Protection of Refugees, Stateless Persons and Internally Displaced People 475
14 Protecting and Promoting the Rights of Women 518
Index 566
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Detailed Contents
Preface x
Table of Cases xiii
Table of Legislation xix
Table of Treaties and Instruments xxiii
1 Sources of International Human Rights 1
1.1 Treaties 3
1.2 Customary International Law 12
1.3 Other International and Regional Instruments 16
1.4 A Practical Guide to Sources 22
2 Key Concepts: Universality, Interdependence and Categories of Rights 28
2.1 Universality 29
2.2 Cultural Sensitivity 39
2.3 Positive Obligations on States to Conform to Human Rights 51
2.4 Indivisibility and Interdependence, or A Hierarchy of Rights? 55
2.5 Interdependence and Indivisibility 56
2.6 Evolving and Developing Rights 58
3 States and Treaty Obligations 59
3.1 “Universal Human Rights” and Ratifi cation 60
3.2 Limitations on State Compliance: Reservations, Declarations,
Derogations and Denunciations 64
3.3 Reservations 64
3.4 Declarations 75
3.5 Derogations 78
3.6 Denunciations 87
4 Human Rights Organisations and Key Institutions 92
4.1 International Organisations 93
4.2 The United Nations 93
4.3 International Courts 108
4.4 The International Labour Organisation 113
4.5 Regional Organisations 116
4.6 Europe 117
4.7 The Americas 135
4.8 Africa 136
4.9 Others 136
viii | DETAILED CONTENTS
5 Monitoring and Enforcing Human Rights: Extra-Conventional Mechanisms 141
5.1 Human Rights Council 143
5.2 The United Nations Educational, Scientifi c and Cultural
Organisation (UNESCO) 158
5.3 United Nations Security Council, Responsibility to Protect,
and Sanctions 163
5.4 International Criminal Courts, Tribunals and Processes 168
5.5 Organisation of American States Inter-American Commission
on Human Rights 177
6 Implementing Human Rights Treaties: Committees and Courts 182
6.1 United Nations Treaty Monitoring Bodies: Conventional Mechanisms 183
6.2 Regional Systems: Creating Judicial Mechanisms 211
6.3 Remedies for Individuals 219
7 National Institutions for Protecting and Promoting Human Rights 227
7.1 States and International (Human Rights) Law 229
7.2 The International Approach to National Institutions 236
7.3 The Regional Position on National Institutions 245
7.4 Nature of National Institutions 246
7.5 Examples of National Institutions 246
7.6 Children’s Commissioners – A Special Case? 250
8 Extending the Duties to Protect and Respect Human Rights:
Non-State Actors 258
8.1 Human Rights Education and Training 259
8.2 Non-Governmental Organisations 261
8.3 Business and Multinational Corporations 269
8.4 Educators, Lawyers and Individuals 292
9 Reforming the International and Regional Human Rights Systems 300
9.1 The Bigger Picture – Human Rights and United Nations Reform 302
9.2 The Human Rights Council – Review Process 332
9.3 Towards Universal Ratifi cation of Key Instruments 334
9.4 Dissemination and Technology 334
9.5 Regional Reforms 337
10 Protecting Children 341
10.1 Children as Humans 342
10.2 Tabulating Children’s Rights 349
10.3 The United Nations Convention on The Rights of The Child 353
10.4 Governing Principles 355
10.5 Regional Instruments 373
11 Detainees, Prisoners and Convicts 376
11.1 Equality Before the Law 377
11.2 Arrest 380
11.3 Disappearances 382
11.4 Detention Pending Trial 394
11.5 Torture and the Use of Force 398
DETAILED CONTENTS | ix
11.6 Fair Trial 401
11.7 Detention After Conviction 413
11.8 Juveniles in Detention and Court 418
11.9 Capital Punishment 423
12 Indigenous Peoples and their Rights 429
12.1 Towards Recognition of Indigenous Rights 430
12.2 Invoking Minority Rights 433
12.3 The Scope of ‘Indigenous People’ 448
12.4 Rights Claimed by Indigenous People 450
12.5 The Right to Self-Determination 450
12.6 Land Rights 458
12.7 Cultural Rights 472
13 The Protection of Refugees, Stateless Persons and Internally
Displaced People 475
13.1 Who is a Refugee? 477
13.2 Procedures for Determining Refugee Status 483
13.3 Termination of Refugee Status 488
13.4 Regional Instruments and Criteria for Determining
Refugee Status and Addressing Refugee Rights 493
13.5 Rights of Refugees 497
13.6 Granting Asylum to Refugees and Others 505
13.7 Internally Displaced Persons 506
13.8 High Commissioner for Refugees 507
13.9 Stateless Persons 509
14 Protecting and Promoting the Rights of Women 518
14.1 Leading the Way: The International Labour Organisation 519
14.2 Equality 521
14.3 Tabulating Women’s Rights 536
14.4 Protection from Persecution: Traffi cking, Exploitation 538
14.5 Violence Against Women 543
14.6 Family Rights: Marriage and Children 557
14.7 Regional Instruments and Approaches to Women’s Rights 562
Index 566