ModuleReading List

International Rights LawLW 990 Module Director: Module Coordinat

MA in the Theory and PHuman Rights

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Module Outline and Reading List

International Human Rights Law LW 990

Module Director: Judith Bueno de Mesquita Module Coordinator: Justin Pettit

in the Theory and Practice of Human Rights 2011-2012

Human

Mesquita

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Module Outline:

Week 1: Introduction to Law and Legal Reasoning Week 2: Introduction to International Law and Sources; Customary

International Law

Week 3: Sources - Treaties and Soft Law Week 4: International Legal Personality

Week 5: Jurisdiction, Immunities and State Responsibility

Week 6: The Use of Force and the Protection of Human Rights

Week 7: UN Human Rights Institutions and Processes: the Charter based

Human Rights System Week 8: UN Human Rights Institutions and Processes: the Treaty Bodies

Week 9: Regional Human Rights Institutions and Processes: Europe

Week 10: Regional Human Rights Institutions and Processes: The Americas

Week 11: Regional Human Rights Institutions and Processes: Africa

Week 16: Equality and Non-Discrimination

Week 18: Minorities and Indigenous Peoples Week 18: Freedom of Thought, Conscience and Religion, and Freedom of

Expression

Week 19: Freedom of Association and the ILO Week 20: Prohibition of Torture and Cruel, Inhuman or Degrading Treatment

or Punishment Week 21: The Right to Life and Unlawful Killings, and Enforced

Disappearances Week 22: States of Emergency and (Counter-) Terrorism; Armed Conflicts

Week 23: Refugees and Internally Displaced Persons Week 24: Economic, Social and Cultural Rights – Focus on the Right to the

Highest Attainable Standard of Health and the Right to an Adequate Standard of Living

Week 25: Redress and Transitional Justice

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Aims and Objectives The first term of LW990 aims to provide students with an overview of the basic principles of international law that are essential for further study, research and effective practice in the field of international human rights law. During this term students will also gain knowledge of the international and regional human rights institutions and processes.

By the end of the first term, students should feel comfortable analysing legal materials (legal instruments, jurisprudence and commentaries), constructing legal arguments and engaging in legal research pertaining to human rights.

In the second term the core module aims to provide students with an analytical, critical and contextual introduction to international human rights law. The module is designed to provide a solid legal foundation on the basis of which students will pursue their more specialised optional modules and human rights research.

While the scope and depth of the subject does not permit the International Human Rights Law module to cover all relevant issues, it aims to familiarise students with the major contemporary features and debates within international human rights law. Further, it also provides students with an opportunity to develop their analytical skills in relation to the international law of human rights.

Teaching and Assessment

Teaching consists of lectures and discussion groups. In both terms one and two, each student is expected to attend the weekly lecture (2 to 4 hours). In addition, each student is expected to participate in a fortnightly two-hour discussion group. While the lectures are delivered to the whole group, the discussion groups are delivered to smaller groups so as to facilitate discussion. Thus, each discussion group is repeated.

Students should come to the discussion groups ready to discuss the concepts and ideas covered in the lecture and the readings. During the discussion groups all students are expected to participate in general discussions, role-play exercises, case studies and presentations. Please make sure that you do the essential reading for the discussion group. The topics of discussion and the readings for the discussion group will be made available.

The module is assessed by way of two take home exams. Each exam consists of a combination of a compulsory “fact” question and of an essay question to be chosen among a selection of titles, each counting for 50% of the final mark. The first exam will be distributed during the final week of term one. You are expected to return your answer script to the law postgraduate office by 15.45 hrs on the first day of the spring term. The second take home exam will be distributed in the last week of the second term and should be returned to the law postgraduate office by 15.45 hrs on the first day of the summer term. Each take-home exam counts for 50% of the final overall module mark.

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Readings

Each week you are required to do the ‘essential readings’ listed on the reading list. If you have the time or have a particular interest in a specific area, please also read some of the materials listed in the ‘further readings’ section. The ‘further reading’ is also there to assist you in your independent research.

This outline provides ‘Essential Readings’, ‘Instruments’, ‘Cases’ and ‘Further Readings’ in relation to each module topic. Students are expected to read all the ‘Essential Readings’, ‘Instruments’ and ‘Cases’. They should use their best endeavours to read as much material as possible before the relevant class. Students should consult the ‘Further Readings’ as necessary.

A pack of the materials that form the readings for the module will be provided at the beginning of the year, which includes only some of ‘the Essential Readings’ of the module that are not easily accessible online or in the library.

Additionally, a list of basic websites has been included at the end of this outline. It provides students with a comprehensive list of international law and international human rights law links accessible through the internet.

Recommended Books All students should purchase a copy of Dixon, McCorquodale and Williams, Cases and Materials on International Law (5th edition, Oxford, 2011). This book can be purchased at the university bookshop or it can be found in the library at JX 3091.D5. Students are also advised to purchase, Steiner, J., Alston, P., and Goodman, R., International Human Rights in Context: Law, Politics and Morals (Oxford, 3rd ed. 2007). This book can be purchased at the university bookshop or it can be found in the library at JC 571.S7. We will use these books throughout the first term and it will also be of use during the second term.

You may also wish to purchase a compilation of international human rights laws. Brownlie, I., Basic Documents on Human Rights (6th edition, Oxford, 2010) (available in the library at JC 571.B2) provides a good compilation of basic instruments. However, it is not essential that you purchase this book as you can find all the relevant human rights instruments on the web (go to: www.ohchr.org then click on ‘your human rights’ and ‘international law’).

The cases which are referenced in the reading list can be found in full in the library or there are links on the LW990 internet site to summaries.

There is an ever-growing literature on the subject of international human rights so that it would not be possible to list all here. Nor is there one text recommended for this module. The list below does not exhaust all the issues to be addressed during the lectures and seminars. Nevertheless, it provides the students with a good range of sources to consult during the year. This list is divided into core legal texts and some recent books offering wider perspectives on international human rights law.

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Core Legal Texts Malanczuk, P., Akehurst’s Modern Introduction to International Law (London, Routledge, 1997) It is available in the library at JX3091.M2. Dixon, M., McCorquodale, R. and Williams, S., Cases and Materials on International Law (5th edition; Oxford, OUP, 2011) Alston, P., Steiner, H., and Goodman, R., International Human Rights in Context (3rd edition; Oxford, OUP, 2007) Alston, P., The United Nations and Human Rights: A Critical Appraisal (Oxford, Oxford University Press, 1992) Brownlie, I., Basic Documents on Human Rights (6th edition; Oxford, OUP, 2010) Krause, C. and Scheinin, M. (eds), International Protection of Human Rights: A Textbook (Abo, Institute for Human Rights Abo Akademi University, 2009). Moeckli, D., et al, International Human Rights Law (Oxford: OUP, 2010). Ghandhi, S., Blackstone’s International Human Rights Documents (Oxford, OUP, 2010). Harris, D., Cases and Materials on International Law (7th edition; London, Sweet and Maxwell, 2010) Marks S., and Clapham A., International Human Rights Lexicon (Oxford; OUP 2005). Website for this book sources: http://graduateinstitute.ch/faculty/clapham/marks-lexicon/contents.html Smith, R., Textbook on International Human Rights (4th edition; Oxford, OUP, 2010) Wallace, R., International Human Rights: Texts and Materials (2nd edition; London, Sweet and Maxwell, 2001) Other Texts Cali, B. (ed.), International Law for International Relations, (Oxford: OUP, 2009) Baxi, U., The Future of Human Rights (Oxford, OUP, 2002) Cassese, A., International Law (2nd edition; Oxford, OUP, 2004) Cassese, A., International Criminal Law (2nd edition; Oxford, OUP, 2008)

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Charlesworth, H. and Chinkin, C., The Boundaries of International Law – a Feminist Analysis (Manchester, Juris Publishing, 2000) Boyle, K (ed) New Institutions for Human Rights Protection (Oxford University Press 2009) Oberleitner, G., Global Human Rights Institutions (Cambridge, Polity Press, 2007). Kälin, W. and Künzli, J., The Law of International Human Rights Protection, (Oxford University Press, 2009) Clapham, A., Human Rights Obligations of Non-State Actors (Oxford, OUP, 2006) Freeman, M., Human Rights: an Interdisciplinary Approach (2nd edition; Cambridge, Polity Press, 2011) Ignatieff, M., Human Rights as Politics and Idolatry (NY, Princeton University Press, 2001) Kalshoven, F. and Zegveld, Constraints on the waging of war: an introduction to international humanitarian law (4th edition; Cambridge, Cambridge University Press, 2011) Koskenniemi, M., The Gentle Civilizer of Nations: The Rise and Fall of International Law (Cambridge, Cambridge University Press, 2001). This book contains a critical approach to the history of international law during the last century. Lindblom, A., Non-Governmental Organisations in International Law (Cambridge, CUP, 2006). Wilson, R. (ed.), Human Rights, Culture and Context: Anthropological Perspectives (NY, Photo Press, 1997) Baehr, P. and Gordenker, L., The United Nations Reality and Ideal (4th edition; Palgrave Macmillan, 2006)

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Journals

There are a large number of high quality international law journals in the library. The following are particularly useful:

AJIL American Journal of International Law

EHHR European Human Rights Reports

EJIL The European Journal of International Law

HRLJ Human Rights Law Journal

HRQ Human Rights Quarterly

ICLQ International and Comparative Law Quarterly

IHHR International Human Rights Reports

IRRC International Review of the Red Cross and Crescent

JICJ Journal of International Criminal Justice

Internet resources

The Reading list for this module can be found on the University of Essex website in the Course Materials Repository. The Web site for this module contains useful links to many of the Readings and other resources. A website has been designed to help students find on-line Reading materials for each one of the sessions and to provide them guidelines for writing among other things. The website can be accessed on or off campus but a valid password is required. Students can access it by going to the following web address: https://courses.essex.ac.uk/lw/lw990/

Students are strongly advised to familiarise themselves with the Lexis Library, Hein Online and Legal Journals Index, which contain a rich pool of articles on international law/human rights law. To access these databases, go to the University homepage (www.essex.ac.uk), click on library services, click on 'E-Resource and Database menu' where you will find all of the databases. In week 2, Caroline Checkley, a librarian specializing in human rights law, will run a session on accessing and searching the library’s various e-resources. The session will also include introductions to other important internet-based resources, including those of the United Nations, international and regional courts, and other case law repositories. Students can seek further advice from Caroline. checkc@essex.ac.uk

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Useful web sites The LW990 Web page contains extensive links to relevant web sites. However, some of the most important web sites are: The United Nations: www.un.org The International Court of Justice: www.icj-cij.org The Office of the United Nations High Commissioner for Human Rights http://www.ohchr.org The Inter-American system: http://www.corteidh.or.cr/index.cfm and http://www.cidh.oas.org/DefaultE.htm Asia Human Rights Mechanism group: http://www.aseanhrmech.org/ African Charter site: http://www.achpr.org The Council of Europe: www.coe.int European Court of Human Rights Database: http://www.echr.coe.int/echr/en/hudoc/ The European Union: http://europa.eu/pol/rights/index_en.htm The Organisation for Security and Cooperation in Europe: www.osce.org HURIDOCS : http://www.huridocs.org/?set_language=en Unifem: http://www.unifem.org/ Legal Research on International Law Issues Using the Internet: http://www.lib.uchicago.edu/~llou/forintlaw.html ASIL Guide to Electronic Sources for International Law: http://www.asil.org/resource/home.htm

Further information

The module is taught by a teaching team made up of academics from the Department of Law. However, if you have any questions about the module, please direct them in the first instance to the module coordinator Justin Pettit (jkpett@essex.ac.uk) or the module director Judith Bueno de Mesquita (jrbuen@essex.ac.uk). Please note that Justin’s consultation time is every Wednesday from 10.00 to 12.00 in room CB50, Judith’s office hours are on Thursdays from 14.00-15.00 (5S.6.11). Please note that Judith works on a part-time basis, her normal work days are Wednesdays-Fridays. Please note that overall general administration of the MA is the responsibility of the Human Rights Centre Education Programme Secretary Emma Revill (room 4SB.5.17) ecrix@essex.ac.uk.

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Week 1: Introduction to Law and Legal Reasoning

Introductory Session to Law for Students enrolled in MA in Theory and Practice of

Human Rights

Dr. Noam Lubell

During the first week of term, all students will have 3 hours of introduction to Law on Friday 7 October, 14:00 – 17:00. This session is essentially designed to help students without a law background to understand basic concepts of law. Although it will be beneficial to all the students, those who have a background in law can opt out of this session. The session will be dynamic since it will combine role plays and team work with brief lectures so as to make sure that the session builds on existing knowledge and that people grasp key concepts and principles that will be essential to make sense of International Human Rights Law. Among the issues that will be discussed are: reading and understanding law; how to find what is relevant legally speaking and legal reasoning; constructing legal arguments. Essential readings:

Since this session will take place during the induction week (3-7 October), students are not expected to come having prepared the session. Nevertheless, a classic book to understand law is the one by William Twining, How to Do Things with Rules (London, Butterworths, 1999, 4th edition).

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Week 2: Introduction to International Law and Sources; Customary

International Law

Dr. Noam Lubell

Essential readings:

Malanzuck, ‘Introduction’ pp. 1-8 Dixon, McCorquodale and Williams, Chapter 1, pp. 1-17 Steiner, Alston and Goodman, pp. 3-17 Issues: What is international law? What is international human rights law? What do international lawyers consider to be a right? A. The relationship between international and national law Essential readings: Malnczuk, Chapter 4 ‘International law and municipal law’ pp. 63-74 Dixon, McCorquodale and Williams, pp. 105-131 Steiner, Alston and Goodman, pp. 1096-1099 Issues: 1. What is a monist legal system? 2. What is a dualist legal system? 3. What does this distinction mean for individuals? Further readings: Evans, International Law, pp. 428-444 B. The International Court of Justice

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Essential readings: Malnczuk, pp. 281-93 Chapter II and IV, ICJ Statute. Dixon, McCorquodale and Williams, pp. 632-663 Issues: 1. What is the function of the ICJ? 2. What is the jurisdiction of the ICJ? Further readings: Higgins, ‘Dispute Settlement and the International Court of Justice’ pp. 186-204 Please take a look at the ICJ web site.

C. The Sources of International Law – Emphasis on Customary International Law

Essential readings:

Malanczuk, Chapter 3, ‘Sources of International Law’ pp. 35-62 Dixon, McCorquodale and Williams, Chapter 2, pp. 18-54 Steiner, Alston and Goodman, pp. 58-148 Chinkin and Charlesworth, The Boundaries of International Law, pp. 62-67 Instruments: Article 38, Statute of the International Court of Justice (ICJ) (Dixon, McCorquodale and Williams, p.21) Article 64, 1969 Vienna Convention on the Law of Treaties (Dixon, McCorquodale and Williams, p.37) The Universal Declaration of Human Rights (1948) (UDHR)

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Cases: All the ICJ cases are accessed through the ICJ website http://www.icj-cij.org/ The Anglo-Norwegian Fisheries Case, UK v. Norway (1951) Judgment of ICJ (Harris pp. 327-332) Barcelona Traction, Light and Power Company Case (1970) Judgment of ICJ paras 33-103 (Harris pp. 515-522) North Sea Continental Shelf Cases (1969) Judgment of ICJ paras 70-101 (Harris pp. 21-27) Military and Paramilitary Activities in Nicaragua (Merits) (1986) Judgment of ICJ, paras 174-179 and 183-186 (Dixon, McCorquodale and Williams pp. 26-27 and 35-37) Nuclear Weapons Advisory Opinion (1996) Judgment of ICJ paras 13-19 and 36-105 (Harris pp. 778-795) The Namibia Advisory Opinion (Legal Consequences for States of the Continued Presence of South Africa in Namibia), (1971) Judgment of ICJ paras 94-101 (Dixon, McCorquodale and Williams pp. 98-99), Issues: 1. What are considered to be the traditional sources of international law? 2. Does Article 38 of the ICJ Statute provide a complete list of the sources of

international law? 3. Are the sources of international law mentioned in the ICJ statute hierarchical? 4. What are the sources of international human rights law? 5. What are the constituent elements of customary international law? 6. What acts can be considered to constitute state practice? 7. What does the term opinio juris mean? 8. What is meant by the term ‘persistent objector’? 9. What is meant by the term ‘regional custom’? 10. What approach does the International Court of Justice follow when attempting to

identify the creation, change and modification of customary international law? 11. Who is bound by customary international law? 12. What is the relationship between treaty law and customary international law? 13. Which international human rights norms can be considered to be customary

international law? 14. What does the term jus cogens mean? Is this term useful? 15. What is meant by an obligation erga omnes? 16. What is the difference between customary international law and general international

law?

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Further readings: Akehurst, ‘Custom as a Source of International Law’ (1974-5) 47 BYIL pp. 1-54 Byers, Custom, Power and the Power of Rules (Oxford, 1999) Charney, ‘Universal International Law’ (1993), 87 AJIL pp. 529-551 Czaplinski, ‘Sources of International Law in the Nicaragua Case’ (1989) 38 ICLQ, pp. 151-166 Meron, Human Rights Norms and Humanitarian Norms as Customary International Law (1989) Roberts, ‘Traditional and Modern Approaches to Customary International Law’ (2001) 95 AJIL, pp. 757-791 Brownlie, Principles of Public International Law, Chapter 5 Cassese, International Law, Chapter 6 Higgins, Problems and Process: International Law and How We Use it, pp. 17-38 Shelton, D., ‘Hierarchy of Norms and Human Rights: Of Trumps and Winners’ (2001 Ariel F. Sallows Conference: Human Rights and the Hierarchy of International Law Sources and Norms), 65 Saskatchewan Law Review 301-331 (2002). Available online at HeinOnline.

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Week 3: Sources - Treaties and Soft Law

Dr. Noam Lubell

A. Law of Treaties

Essential readings:

Malanczuk, pp. 130-146 Dixon, McCorquodale and Williams, Chapter 3, pp. 55-100 Redgewell, ‘Reservations to Human Rights Treaties and the Human Rights Committee General Comment 24’, (1997) 46 International Comparative Law Quarterly, pp. 390-412 Steiner, Alston and Goodman, pp. 1124-1155 – on reservations Sub-Commission on the Promotion and Protection of Human Rights, Final Working Paper on Reservations to Human Rights Treaties, UN Doc. E/CN.4/Sub.2/2004/42. Instruments: The 1969 Vienna Convention on the Law of Treaties. Human Rights Committee General Comment 24. Cases: Reservations to Genocide Convention, ICJ Rep. (1951), p. 15 (Dixon, McCorquodale and Williams pp.71-72). Rawle Kennedy v Trinidad and Tobago, UN Human Rights Committee, 7 International Human Rights Reports 315 (2000) (Dixon, McCorquodale and Williams, p. 79) Belilos v. Switzerland, European Court of Human Rights Series A (1998), Vol. 132 (Dixon, McCorquodale and Williams, pp. 73-74) Issues: 1. What is the function of a treaty in international law? 2. Under international law who is able to enter into a treaty? 3. What is meant by the term pacta sunt servanda? 4. What is the difference between signature and ratification of a treaty?

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5. What is the approach to the interpretation of treaties and why is it necessary to have an approach?

6. What is meant by a reservation to a treaty and what is the effect of a reservation of a treaty?

7. How may a state legally justify non-adherence to a treaty obligation? 8. How would you distinguish an international human rights treaty from other

international treaties? 9. Is it possible for states to make reservations in respect of international human rights

law treaties? 10. What are the consequences, if any, of a reservation to an international human rights

law treaty? 11. Twelve states have ratified the (hypothetical) 1995 Convention for the Protection

and Preservation of Golden Crabs. The Golden Crab is an inhabitant of the seabed of Mediterranean States. Article 1 stipulates “No party shall catch more than 300 Golden Crabs per annum in its coastal waters”. Consider the legal consequences of the following acts

(a) State A caught 2,000 Golden Crabs last year. State A argues that due to States’ diligence in protection measures in the 1990s the population of Golden Crabs is no longer at critically unsustainable levels. Indeed, the species has repopulated in such number that if not caught the Crab will wipe out fish stocks.

(b) State B considers the treaty void because when it signed and ratified the treaty it

mistakenly thought the subject of protection was the Gold Crab. The Golden Crab is a delicacy of State B, and it is highly important to B’s economy that more than 300 of the species can be caught for food, whereas the shores of B are not home to many Gold Crabs.

(c) State C has caught 300 Golden Crabs in its own coastal waters, but has also

proceeded to catch thousands of the species in the coastal waters of the other Parties. State C argues that this interpretation is completely consistent with the ordinary meaning of the provision.

(d) In 2001 all parties to the 1995 treaty have negotiated the Convention for the

Protection and Preservation of Coastal Seabed Species and Their Habitats. Article 1 of the 2001 Convention stipulates, “It is forbidden to catch any species listed in Annex I”. Annex I lists, inter alia, the Golden Crab.

(e) State D is complaining against State E in that the latter State has been catching

Golden Crabs in the area beyond the 3 mile limit, and hence has taken higher catches than the 300 allowed under the Convention. State E interprets the term “coastal waters” to mean to the extent of 3 miles. State E claims that this interpretation of the term “coastal waters” is consistent with the general discussions during the negotiations. In this regard, State E adduces the travaux préparatoires as evidence that this was the meaning States were adopting for the Convention. State D interprets the term “coastal waters” to mean the waters to a distance of 12 miles from a State’s baselines. State D argues that this interpretation is consistent with international practice in general in that “coastal waters” are always defined as 12 miles. State D

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acceded to the Convention, and was not present at the discussions. No definition of “coastal waters” was included within the treaty.

Further readings: Aust, Modern Treaty Law and Practice (Cambridge, second edition, 2007) Baratta, R. ‘Should Invalid Reservations to Human Rights Treaties Be Disregarded?, EJIL (2000), Vol. 11, No.2, pp. 413-425 Chinkin, Human Rights as General Norms and a State’s Right to Opt Out (British Institute of Comparative Law, 1997) Charlesworth and Chinkin, pp. 96-122 Craven, ‘Legal Differentiation and the Concept of the Human Rights Treaty in International Law’, (2000) 11 EJIL, No.3, pp. 489-519 Evans, International Law, second edition, pp. 173-213 Goodman, ‘Human Rights Treaties, Invalid Reservations and State Consent’, 96 (2002) AJIL, No. 3, pp. 531-560 Kamminga, ‘State Succession in Respect of Human Rights Treaties’, (1996) 7 EJIL, No.4, pp. 469-484 B. Soft Law: Declarations, UN Resolutions, Guidelines and Principles Essential readings: Malanczuk, pp. 54-55 Dixon, McCorquodale and Williams, pp. 48-52 Rodley, ‘Soft Law, Tough Standards: Non-Treaty Instruments Relevant to the Protection of the Rights to Life and Humane Treatment’, Interights Bulletin, (1993) Vol. 7, No. 3, pp. 43-46 Instruments: UN Code of Conduct for Law Enforcement Officials. UN Vienna Declaration and Programme for Action (1993).

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Issues: 1. What is soft law? 2. Are soft law standards binding upon states? 3. What is the value of soft law? Further readings: Chinkin and Charlesworth, The Boundaries of International Law: a Feminist Analysis, pp. 71-95. Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, (1989) 38 ICLQ, pp. 850-866

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Week 4: International Legal Personality

Dr. Noam Lubell

Essential readings:

Malanczuk, Chapter 5, Chapter 6 Dixon, McCorquodale and Williams, Chapter 5, pp.132-174 Steiner, Alston and Goodman, pp.1385-1432 Rodley, ‘Can Armed Opposition Groups Violate Human Rights?’, in Mahoney, K. and Mahoney, P. (eds.) Human Rights in the Twenty-First Century: A Global Challenge (1993), pp. 297-318 Issues: 1. Who are considered to be the subjects of international law? 2. What are the requirements of statehood in international law? 3. What is mean by the term ‘international legal personality’? 4. Who can be held responsible for a violation of international law? 5. Is the government of a stable, unrecognised entity (e.g. Transdniestra) capable of

having rights and obligations in international law? Does it make a difference to your answer to know whether the entity is part of a sovereign state?

6. If the states are subjects of international law what is the role of individuals in international law?

7. What status do international organizations have under international law? 8. What is meant by the term ‘non-state actor’? Further readings: Chinkin and Charlesworth, pp. 124-137 Evans, International Law, second edition, pp. 205-236, 277-286 and 307-329 Clapham, A., Human Rights Obligations of Non-State Actors, chapter 1.

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Week 5: Jurisdiction, Immunities and State Responsibility

Dr. Noam Lubell

Essential readings: Malanczuk, Chapter 7, Chapter 8; Chapter 17 Dixon, McCorquodale and Williams, Chapter 8 pp. 273-303; Chapter 9, pp. 304-345; and Chapter 11, pp. 394-440 Steiner, Alston and Goodman, pp. 1226-1237

Issues:

1. Do States need positively to identify a ground for the exercise of jurisdiction or are they free to exercise jurisdiction unless international law prevents them from doing so?

2. When international law allows the exercise of jurisdiction is a State obliged to exercise it?

3. Which national authorities are immune from the exercise of jurisdiction by a foreign State

a. in civil proceedings? b. in criminal proceedings?

4. Does sovereign or diplomatic immunity act as a bar to international proceedings? 5. In what circumstances, if any, will a State bear legal responsibility for the acts of

a. a company in its jurisdiction? b. a non-State armed group?

6. What are the forms of, and limits to, State responsibility?

Further reading: Behrami and Behrami v. France (application no. 71412/01) and Saramati v. France, Germany and Norway (no. 78166/01). Al-Adsani v. United Kingdom (2002) 34 EHRR 273.

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Week 6: The Use of Force and the Protection of Human Rights

Dr. Noam Lubell

Essential readings:

Malanczuk, pp. 306-341 Dixon, McCorquodale and Williams, Chapter 15, pp. 570-625 Greenwood, ‘International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida and Iraq’, 4 San Diego Int’l Law Journal (2003), pp. 7-37. Warbrick and McGoldrick, ‘The Use of Force against Iraq’, 52 ICLQ (2003), pp. 811-814 Report of the International Commission on Intervention and State Sovereignty, ‘The Responsibility to Protect’ (2001), Chapters 1, 2, 4 and 8. Available online Rodley, Nigel S., and Basak Cali, "Kosovo Revisited: Humanitarian Intervention on the Fault Lines of International Law", Human Rights Law Review (2007) 7 (2): 275-97. Instruments: Articles 1, 2(4), 2(7), 51, Chapters VI and VII, UN Charter. Security Council Resolutions 688, 1368, 1373, 1441 and 1674 2005 World Summit Outcome, General Assembly Resolution 60/1, UN Doc. A/RES/60/1, paras. 138-139. Cases: Military and Paramilitary Activities in Nicaragua (Merits) (1986) ICJ Rep. p. 14, (Dixon, McCorquodale and Williams, pp. 593-594 and 603-604) Caroline Case 29 BFSP 1137-38 (Dixon, McCorquodale and Williams, p. 576) Issues: The use of force under international law 1. Under what circumstances can States use force? 2. What limitations does the UN Charter place upon States wishing to use force in self-

defence?

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3. Does the UN Charter permit anticipatory self-defence? 4. What was the legal basis for the US/UK intervention in: a) Afghanistan (2001) and

b) Iraq (2003)? The role of the Security Council in the maintenance of peace and security 1. Article 24 of the UN Charter confers primary responsibility for the maintenance of

international peace and security on the Security Council. What powers does the Security Council have to discharge this responsibility and how have these powers been exercised in practice?

2. What role does article 24 leave for the General Assembly in the field of international security?

3. What is the relationship between articles 2(4), 2(7) and Chapter VII of the UN Charter?

Humanitarian intervention / Responsibility to Protect 1. What is ‘humanitarian intervention’? 2. Do States have a right to humanitarian intervention under international law? 3. What was the legal basis for the 1999 NATO led bombing campaign against the

Federal Republic of Yugoslavia? 4. Is ‘responsibility to protect’ the same as ‘humanitarian intervention’? If not, what are

the differences? 5. Could the following intervene militarily without the consent of Sudan to address the

situation in Darfur: a. the Security Council b. the African Union c. a coalition of willing States

Further readings: Bothe, ‘Terrorism and the Legality of Pre-emptive Force’, (2003) 14 EJIL, No. 2, pp. 227-240 Brownlie, ‘Kosovo Crisis Inquiry: Memorandum on the International Law Aspects’, (2000) 49 ICLQ, pp. 878-905 Chesterman, Just War or Just Peace (2001), pp. 45-87 Byers ‘Terrorism, the Use of Force and International Law after September 11’, (2002) 51 ICLQ, pp. 401-414 Gray, International Law and the Use of Force (2000) Gray, ‘The Use and Abuse of the International Court of Justice: Cases concerning the Use of Force after Nicaragua’ (2003) EJIL, Vol. 14, No. 5, pp. 867-905 Lubell, N., Extraterritorial Use of Force Against Non-State Actors (Oxford University Press, Oxford 2010). Chapters 1,2,3. (book in library and available online through library website).

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Katselli and Shah, ‘September 11 and the UK Response’, (2003) 52 ICLQ, pp. 245-255 Simma, ‘NATO, the UN and the Use of Force: Legal Aspects’; and Antonio Cassese, ‘Ex injuria ius oritur: Are We Moving towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?’ both in 10 EJIL (1999) pp. 1-30 Steiner, Alston and Goodman, pp. 648-703 Editorial Comments, ‘NATO’s Intervention in Kosovo (A collection of comments)’, (1999), 93 AJIL, No. 4, pp. 824-860 ‘A More Secure World: Our Shared Responsibility’, Report of the High-Level Panel on Threats, Challenges and Change, UN Doc. A/59/565 (2004), Synopsis and paras. 183-209

Saramati and Behrami cases from week 5

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Week 7: UN Human Rights Institutions and Processes: The Charter Based Human Rights System

Professor Sir Nigel Rodley

Essential readings:

Boyle, K., ‘The United Nations Human Rights Council: Origins, Antecedents and Prospects’, in Boyle (ed.) New Institutions for Human Rights Protection OUP, 2009, chapter 1. Rodley, N., and Weissbrodt, D., ‘United Nations Non-Treaty Procedures for Dealing with Human Rights Violations’, in Hannum (ed.) Guide to International Human Rights Practice, University of Pennsylvania Press (4th edition, 2004), chapter 4. Brett, R., A Curate's Egg - QUNO analysis of Human Rights Council Year 3 (2009). Available online Read a recent annual report of the Special Rapporteur on Torture and the Special Rapporteur on the Right to Health, as well as a report of one of their recent country visits; available online here for torture and here for health Documents: Report of the Eighteenth Meeting of Special Rapporteurs/Representatives, Independent Experts and Chairpersons of Working Groups of the Special Procedures of the Human Rights Council and of the Advisory Services Programme (27 June-1 July 2011), UN Doc. A/HRC/18/41. General Assembly Resolution 60/251, 3 April 2006, establishing the Human Rights Council. Human Rights Council Resolution 5/1, 18 June 2007, United Nations Human Rights Council: Institution-Building. UN Doc. A/HRC/RES/5/1. United Nations Human Rights Council: Institution-Building. Human Rights Council Resolution 5/2, 18 June 2007, Code of Conduct for Special Procedures Mandate-holders of the Human Rights Council, UN Doc. A/HRC/RES/5/2. Report of the Open-ended Intergovernmental Working Group on the Review of the Work and Functioning of the Human Rights Council (4 May 2011), UN Doc. A/HRC/WG.8/2/1. Go to the OHCHR website and register for the Human Rights Council Extranet, go to UPR webpage and peruse some UPR outcomes.

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Issues: 1. In 2006, the Commission on Human Rights was replaced by the Human Rights

Council? Why? What are the key differences between the two bodies? 2. What are the strengths and weaknesses of the 1503 and 1235 procedures? 3. What is the significance of the development of thematic special procedures? 4. What was the role of the Sub-Commission on the Promotion and Protection of

Human Rights, as compared with that of the Human Rights Council Advisory Committee?

Further readings: Steiner, Alston and Goodman, pp. 735-835 Amnesty International, The United Nations Thematic Mechanisms: An Overview of their Work and Mandates (2002). Gutter, J., Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Antwerp: Intersentia, 2006). Bernaz, N., ‘Reforming the UN Human Rights Protection Procedures: A Legal Perspective on the Establishment of the Universal Periodic Review Mechanism’, in Boyle (ed.), New Institutions for Human Rights Protection (OUP, 2009), chapter 3. Pinheiro, P., ‘Musings of a UN Special Rapporteur on Human Rights’ 9 Global Governance 7 (2003). Rodley, N., ‘On the Responsibility of Special Rapporteurs’, 15 International Journal of Human Rights 319 (2011).

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Week 8: UN Human Rights Institutions and Processes: The Treaty Bodies

Professor Sir Nigel Rodley

Essential readings:

Steiner, Alston and Goodman, pp. 844-924 O’Flaherty, M., Human Rights and the UN: Practice before the Treaty Bodies (The Hague Nijhoff 2002), pp 17-47 and 83-104 O’Flaherty, M., and O’Brien, C., “Reform of the Human Rights Treaty Monitoring Bodies: A Critique of the Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body”, 7(1) HRLR (2007), 141-172. Crawford, J., ‘The UN Human Rights Treaty System: A System in Crisis?’, in Alston, P., and J, Crawford, J. (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge, Cambridge University Press, 2000). Bayefsky, A., The UN Human Rights Treaty System: Universality at the Crossroads, (April 2001). Executive summary and recommendations. Available online Rodley, N., ‘The United Nations Treaty Bodies and the Human Rights Council’, Ulfstein, G., and Keller, H., United Nations Human Rights Treaty Bodies (Cambridge, CUP, 2011, forthcoming). Documents: Office of the High Commissioner for Human Rights, Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/2, 22 March 2006. Twenty-second Meeting of Chairpersons of the Human Rights Treaty Bodies, 1-2 July 2010, Decisions and Recommendations, A/65/190. Peruse documents on treaty body reform on the OHCHR website. Available here Instruments: All the core international human rights instruments are available online International Convention on Civil and Political Rights, especially articles 28-45 and Optional Protocol

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International Convention on Economic, Social and Cultural Rights, especially articles 16-22 and Optional Protocol International Convention on the Elimination of All Forms of Racial Discrimination, especially articles 8-14 Convention on the Elimination of All Forms of Discrimination against Women, especially articles 17-22 and Optional Protocol Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, especially articles 17-24 and Optional Protocol Convention on the Rights of the Child, especially articles 43-45 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, especially articles 72-78 Convention on the Rights of Persons with Disabilities, especially articles 34-39, and Optional Protocol International Convention for the Protection of All Persons from Enforced Disappearance, especially articles 26-36 Issues: 1. How effective do you consider the periodic reporting system to be for monitoring

State compliance with international treaties? 2. How can treaty bodies improve on the reporting system, in particular what of the

proposed single consolidated state report to be examined by the different Committees?

3. Do proposed reforms that would lead to the creation of a single treaty body represent a better institutional arrangement for dealing with State reports, inquiries into practices of violations of human rights, or individual complaints?

4. How useful are the investigative powers of some Committees? 5. Why have the interstate complaints procedures not been used? 6. What is the value of General Comments? 7. What is the utility of individual complaints procedures? 8. What are the main differences between treaty bodies and Charter-based bodies? Further readings: Alston and Crawford, The Future of UN Human Rights Treaty Monitoring (2000) Nowak, M., UN Covenant on Civil and Political Rights: CCPR Commentary (2nd edition; Kehl am Rhein, Engel, 2005)

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Bossuyt, M., Guide to the 'Travaux Preparatoires' of the International Convenant on Civil and Political Rights (Boston, Nijhoff, 1987) Bayefsky A., UN Human Rights Treaty System in the 21st Century (Kluwer, 2000)

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Week 9: Regional Human Rights Institutions and Processes: Europe

Lorna McGregor

There are three regional systems of human rights protection in the wider Europe: the Council of Europe established in 1949 with the institutions of the European Court of Human Rights and Committee of Ministers; the European Communities now the European Union (EU), which embraces 27 States; and the Organisation on Security and Co–Operation in Europe (OSCE), which embraces 56 participating States in the wider Europe as well as the United States and Canada. The main elements of each of these systems as well as their interaction will be outlined in the whole group presentation and are looked at in more detail in several of the optional courses. However the focus in this week will be on the European Convention on Human Rights (ECHR). The Council of Europe’s European Convention represents the oldest of the regional systems of international human rights protection. It has developed to permit direct access to a regional court, which can make a binding award against the states by individuals complaining of human rights violations by their own or another Government in 47 countries, covering the whole of Western and Eastern Europe, except Belarus. It began more classically with an optional system of complaints to a Commission that could report, but not decide. Then there was (also optional) jurisdiction by a Court, but only the Commission or a concerned state could refer a case to the Court. How has the system evolved? How does it work? What is its significance for the legal status of the individual under international law? How has it been affected by the enlargement of the EU and what is the significance of EU accession to the Convention? The Convention is now in crisis because of the enormous increase in its membership and the consequent increase in its case load. The Court has now a backlog of over 100,000 case files. A reform to tackle the longer term problem came into force in 2010 with the ratification of Protocol 14. See the Court site below for discussion of this and other reforms. The Committee of Ministers is similarly facing a significant delay in its supervision of the execution of judgments issued by the Court.

Essential readings:

Boyle, K., ‘Europe: Council of Europe, OSCE and European Union’, in Hannum, Guide to International Human Rights Practice, 4th edition, Ardsley: Transnational Publishers (2004) Çali,B, “The Purposes of the European Human Rights System: One or Many?” European Human Rights Law Review 299-306 (2008) Hampson, F. “The Future of the European Court of Human Rights” in ‘Strategic Visions for Human Rights: Essays in Honour of Professor Kevin Boyle’, (Gilbert, Hampson & Sandoval Eds), pp. 141-166

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Clements, L., Simmons, A., European Court of Human Rights: Sympathetic Unease, in Langford, M. (ed), Social Rights Jurisprudence (Cambridge, CUP, 2008), pp. 409-427 Please spend at least one hour on each of the main websites to gain a measure of the work of the EU, the Council of Europe and the OSCE in human rights and related activities. Instruments: The European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) as amended by Protocols Nos. 11 and 14, with Protocols 1, 4, 6, 7, 12 and 13. Interlaken Declaration, 19 February 2010. European Social Charter (1961 as revised 1996) and the Additional Protocol Providing for a System of Collective Complaints (1995). The Charter of Fundamental Rights of the European Union (2000). Copenhagen Document of the OSCE (1990). Cases:

Osman v. United Kingdom, (Application no. 23452/94), Judgment of European Court of Human Rights, 28 October 1998 Bazorkina v. Russia, (Application no. 69481/01), Judgment of European Court of Human Rights, 27 July 2006 Lopez Ostra v. Spain (Application No. 16798/90), Judgment, European Court of Human Rights, 9 December 1994. D. v. UK (Application No. 30240/96), Judgment, European Court of Human Rights, 21 April 1997. Issues: 1. Are regional mechanisms more effective than universal systems in protecting human

rights? 2. By what means was the European Court of Human Rights established? 3. What is the jurisdiction of the European Court of Human Rights? 4. Who can bring a case before the European Court?

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5. What are the consequences of the finding of a violation of human rights by the European Court?

6. How can the European Court of Human Rights survive its crushing backlog of cases?

Further readings:

European Convention on the Prevention of Torture 1987. Framework Convention for the Protection of National Minorities (1994). Council of Europe: European Commission of Racism and Intolerance (ECRI). Available online The European Union Agency for Fundamental Rights (FRA). Available online Reidy, A., Hampson, F., and Boyle, K., ‘Gross Violations of Human Rights: Invoking the European Convention on Human Rights in the Case of Turkey’, 15 NQHR 161 (1997) Jacobs, White & Ovey, European Convention on Human Rights, 5th edition (Oxford, OUP, 2010) Khaliq, U, Churchill, R., The European Committee of Social Rights: Putting Flesh on the Bare Bones of the European Social Charter, in Langford, M. (ed), Social Rights Jurisprudence (Cambridge, CUP, 2008), pp. 428-452

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Week 10: Regional Human Rights Institutions and Processes: the Americas

Dr. Par Engstrom

The lecture aims to familiarise MA students with the work of the Inter-American Commission and the Inter-American Court, making them aware of their most prominent features to protect human rights. The session will provide students with an overview of the work carried out by these bodies since they were established, in diverse areas such as civil and political rights, economic social and cultural rights, reparations and transitional justice.

Essential readings:

Cavallaro, J., and Brewer, S., “Reevaluating Regional Human Rights Litigation in the Twenty-First Century: the Case of the Inter-American Court", 102 American Journal of International Law 768 (2008). Available online Mendez, J., and Mariezcurrena, J., “The Consolidation of Democracy and Human Rights in Latin America”, in Pollis, A., and Schwab, P. (eds), Human Rights: New Perspectives, New Realities (London, Lynne Reinner Publisher, 2000), p. 163. Sandoval, C., “The Challenge of Impunity in Peru: The Significance of the Inter-American Court of Human Rights” in 5(1) Essex Human Rights Review (2008). Available online Instruments: OAS Charter (1948). American Declaration on the Rights and Duties of Man (1948). The American Convention on Human Rights (1969). Protocol of San Salvador (1988). Inter-American Commission on Human Rights, Access to Justice as a Guarantee of Economic, Social and Cultural Rights: A Review of the Standards Adopted by the Inter-American System of Human Rights (2007), executive summary. Available online Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (2002), read sections on the right to life and the right to humane treatment. Available online

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Cases: Velásquez Rodriguez v. Honduras, preliminary objections and judgment, Inter-American Court of Human Rights, 1988. Massacre of Plan de Sanchez v. Guatemala, reparations judgment, Inter-American Court of Human Rights, 2004. Ximenes Lopes v. Brazil, judgment, Inter-American Court of Human Rights, 2006. Cotton Field v. Mexico, judgment, Inter-American Court of Human Rights, 2009. Issues: 1. What are some of the differences between the OAS system and that of the Council of

Europe regarding complaint procedure, structure, subject matter, applicable instruments and style?

2. How does the Commission deal with individual complaints of human rights violations?

3. What is the nature and scope of the advisory and contentious jurisdiction of the Inter-American Court of Human Rights? What is the relationship between the Commission and the Court?

4. How effective is the OAS system compared to that of the Council of Europe? Further readings: Protocol to Abolish the Death Penalty (1990).

Inter-American Convention to Prevent and Punish Torture (1985).

Inter-American Convention on Forced Disappearance of Persons (1994).

Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994).

Inter-American Convention on the Elimination of all Forms of Discrimination against Persons with Disabilities (1999). Inter-American Commission on Human Rights, The Human Rights Situation of the Indigenous People in the Americas (Washington, OAS, 2000), chapter 1 and 3. Available online Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion 18, Inter-American Court of Human Rights, 2003. Almonacid Arellano v. Chile, Judgment, Inter-American Court of Human Rights, 2006. Miguel Castro Castro Prison v. Peru, judgment, reparations and costs, Inter-American Court of Human Rights, 2006.

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Medina, C., The Battle of Human Rights - Gross, Systematic Violations and the Inter-American System (Netherlands, Westview, 1988), chapters 6, 7 and 11. Harris, D., and Livingstone, S. (eds), The Inter-American System of Human Rights (London, OUP, 1998). Taqi, Irum., "Adjudication Disappearance Cases in Turkey: An Argument for Adopting the Inter-American Court of Human Rights' Approach" 24 Fordham International Law Journal 940 (2001). Anaya, J., "The Protection of Indigenous Peoples' Rights Over Land and Natural Resources under the Inter-American Human Rights System" 14 Harvard Human Rights Journal 33 (2001). Available online Pinzon, D., "International Law Weekend Proceedings: The Victim Requirement, the Fourth Instance Formula and the Notion of "Person" in the Individual Complaint Procedure of the Inter-American Human Rights System" 7 ILSA Journal of International and Comparative law 369 (2001). Medina, C., Convención Americana: Teoría y Jurisprudencia (Santiago de Chile, Universidad de Chile, 2005). Abramovich, V. ‘From Massive Violations to Structural Patterns: New Approaches and Classic Tensions in the Inter-American Human Rights System’, 6(11) Sur- International Journal on Human Rights (2009), pp. 7-38.

Davis, Jeffrey, and Edward H. Warner, ‘Reaching Beyond the State: Judicial Independence, the Inter-American Court of Human Rights, and Accountability in Guatemala’, 6 Journal of Human Rights (2007), pp. 233-255.

Engstrom Par and Andrew Hurrell, ‘Why the human rights regime in the Americas matters,’ in Human Rights Regimes in the Americas. Edited by Mónica Serrano and Vesselin Popovski (UN University Press, 2010).

Feria Tinta, Monica, ‘Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions,’ 29(2) Human Rights Quarterly, (2007), pp. 431-459.

Goldman Robert K., ‘History and Action: The Inter-American Human Rights System and the Role of the Inter-American Commission on Human Rights’, 31(4) Human Rights Quarterly (2009), pp. 856-887.

Schonsteiner Judith, Alma Beltran y Puga and Domingo A. Lovera, ‘Reflections on the Human Rights Challenges of Consolidating Democracies: Recent Developments in the Inter-American System of Human Rights’ 11(2) Human Rights Law Review (2011), pp. 362-389.

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Week 11: Introduction to the African Human Rights System: History,

Core Rights and Main Mechanisms

Mr. Tshepo Madlingozi

Part 1: The notion of human rights in Africa; overview of the development of the African human rights system; the political landscape and institutional architecture

This first session will provide an introduction to the concept of human rights in Africa. It will also place the African human rights system, holistically, in its historical context. It will examine the OAU and its evolution into the AU; the African Economic Community (AEC), New Partnership for Africa’s Development (NEPAD), the African Peer Review Mechanism (APRM), and their role in human rights promotion and protection. It also examines the Regional Economic Communities (RECs) and their role in realising human rights Essential readings: Cobbah, J ‘African Values and the Human Rights Debate: An African Perspective’, 9(3) Human Rights Quarterly (1987) pp. 309-331 Howard, R., ‘Evaluating Human Rights in Africa: Some Problems of Implicit Comparisons’, 6(2) Human Rights Quarterly (1984) pp. 160-179 Ibhawoh, B, ‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Human Rights in the African State’, 22(3) Human Rights Quarterly (2000) pp. 838-860 Magliveras and Naldi, G, ‘The African Union. A New Dawn for Africa?’, 51(2) The International and Comparative Law Quarterly (2002) pp. 415-425 Viljoen, F, International human rights law in Africa, Oxford University Press, 2007, Chapter 5 Instruments: OAU/AU treaties The African Charter on Human and Peoples' Rights 1969 OAU Convention governing the Specific Aspects of Refugees Problems in Africa Charter of the Organization of African Unity Constitutive Act of the African Union New Partnership for Africa’s Development (NEPAD)

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Regional Economic treaties and Protocols Compendium of African sub-regional human rights documents, full text online Cases: Mike Campbell and Others v Zimbabwe, SADC Tribunal, 28 November 2008, Koraou v Niger, ECOWAS Court, 2008 Issues:

1. It would be wrong to say there was an ‘African’ conception of human rights. Human rights by their very nature and as defined in international law are universal. Discuss

2. The legal protection of human rights is founded in the West and has been yet another requirement imposed on African states. Discuss.

3. Were human rights protected in traditional African societies? Is “human rights” a Western concept? What was the impact of colonialism on human rights in Africa?

4. Human rights played little part during the creation of the OAU but they have considerable significance in the African Union’s Constitutive Act and the Regional Economic Communities constitutive treaties. This indicates increased attention to the issue by African states. Do you agree with this statement?

5. Describe the extent to which human rights were of interest to African states when they established the OAU and to the OAU during its development over the past 40 years.

6. Should Regional Economic Communities be involved in the promotion and protection of human rights in Africa?

7. Does a real danger of overlapping and conflicting mandates between regional and sub-regional human rights mechanisms arise?

Further readings: Akinyomi, AB, ‘The Organization of African Unity and the Concept of Non-Interference in the Internal Affairs of Member States’, 46 BYIL (1972-1973) 393 Amate, COC, Inside the OAU: Pan-Africanism in Practice, 1986 Amnesty International, Organization of African Unity: Making Human Rights a Reality for Africans, IOR 63/001/1998, Amnesty International August 1998, AI Index: IOR 63/01/98. Available online An-Na’im, A, Cultural Transformation and Human Rights in Africa, Zed Books, 2002 Baimu, E, ‘The African Union: Hope for Better Protection of Human Rights in Africa’, 1(2) African Human Rights Law Journal (2001) pp. 299-314

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Baimu, E, ‘Human Rights in NEPAD and its Implications for the African Human Rights System’ (2002) 2 African Human Rights Law Journal 301 Busia, NKA, ‘The Status of Human Rights in Pre-colonial Africa: Implications for Contemporary Practices’, in McCarthy- Arnolds et al, Africa, Human Rights, and the Global System, Westport, Conn, Chanda, A, ‘The Organization of African Unity: An Appraisal’, 21-24 Zambian Law Journal (1989-1992) 1 Howard, RE, ‘Is there an African concept of human rights?’, in Vincent R.J. Foreign Policy and Human Rights: Issues and Responses, Cambridge University Press, New York, 1986, 11-32 Mahmud, SS, ‘The State and Human Rights in Africa in the 1990s: Perspectives and Prospects’, 15 Hum. Rts. Q. (1993) 485-98 Maluwa, T, International Law in Post-Colonial Africa, Kluwer, 1999, Chapter 5 Mbaye, K, "Human Rights in Africa", in K. Vasak & P. Alston (eds.), The International Dimensions of Human Rights, Westport/Paris: Greenwood Press and UNESCO, 1982, p. 583 Motala, Z, ‘Human Rights in Africa: a Cultural, Ideological, and Legal Examination’, 12 Hastings Int'l & Comp. L. Rev. (1989) 373-410 Quashigah, EK and Ofakor, OK, Legitimate governance in Africa : international and domestic legal perspectives, Kluwer Law, 1999, Chapters 1 and 2 Shivji, IG, The Concept of Human Rights in Africa, London: Council for the Development of Economic and Social Research in Africa (CODRESIA Book Series), 1989, Chapter 1 Banda, F, Women, Law and Human Rights: an African perspective Hart Publishing, Oxford – Portland Oregon 2005 El-Ayouty, Y, The Organization of African Unity after Thirty Years, Westport, Conn.: Praeger Publishers/Greenwood Publishing Group, 1994 Elias TO, ‘The Charter of the Organization of African Unity’, 59 AJIL (1965) 243 Ebobrah, S ‘Human rights developments in African sub-regional economic communities during 2009’, (2010) 10 African Human Rights Law Journal 23 Ebobrah, S ‘Critical issues in the human rights mandate of the ECOWAS Court of Justice’ (2010) 54(1) Journal of African Law 1 Ebobrah, S ‘Human rights developments in sub-regional courts in Africa during 2008’ (2009) 9 African Human Rights Law Journal, 312

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Ebobrah., S ‘Litigating human rights before sub-regional courts in Africa: Prospects and Challenges’ (2009) African Journal of International and Comparative Law (RADIC) Vol 17, No 1, 79 Lloyd, A and R Murray, ‘Institutions with Responsibility for Human Rights Protection under the African Union’ (2004) 48 Journal of Africa Law 165 Ndiaye, B, "The Place of Human Rights in the Charter of the Organisation of African Unity," in K. Vasak, P. Alston (eds.) The International Dimensions of Human Rights Viljoen, F, ‘The realisation of Human Rights in Africa through Sub-Regional Institutions’, 7 African Yearbook of International Law (1999) 185-214

Part 2: The African charter on human and Peoples’ Rights: core rights The session provides a critical overview of the development of the African human rights norms It will look in general at the rights in the African Charter and the other regional human rights treaties comparing those contained with other international instruments. It looks specifically at limitations (‘claw-back’ clauses); individual duties; and indivisibility/ socio-economic rights. The ‘peoples’ rights in the African Charter are also considered in this seminar. Essential readings: Odinkalu, C, ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’, in Evans and Murray, The African Charter on Human and Peoples’ Rights, Cambridge University Press, 2002, Chapter 6 Mutua, M, ‘The Banjul Charter and the African Cultural Fingerprint: an Evaluation of the Language of Duties’, 35 Va. J. Int'l L. (1995) pp. 339-80 Kiwanuka, RN, ‘Note, The Meaning of “People” in the African Charter on Human and Peoples' Rights’, 82 AJIL (1988) pp. 80-101 Murray and Wheatley, ‘Group Rights and the African Charter on Human and Peoples’ Rights’, 25(1) Human Rights Quarterly (2003), pp. 213-236 Instruments and Cases: Communication 155/96 The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, Fifteenth Activity Report of the African Commission Communication 241/2001, Purohit and Moore v The Gambia, Sixteenth Annual Activity Report,

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Communications 137/94, 139/94, 154/96 and 161/97, International Pen, Constitutional Rights Project, Interights on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v Nigeria, Twelfth Activity Report, Media Rights Agenda and Others v Nigeria (2000) AHRLR 200 (ACHPR 2000) Katangese Peoples Congress v Zaire (2000) AHRLR 72 (ACHPR 1995) Jawara v The Gambia (2000) AHRLR 107 (ACHPR 2000) Communication 279/03; 296/05, Sudan Human Rights Centre on Housing and Evictions v Sudan 28th Activity Report of the African Commission Communication 276, Centre for Minority Rights Developement (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v. Kenya (CEMIRIDE v Kenya) African Commission Guidelines for National Periodic Reports, Second Annual Activity Report, See Murray and Evans, Documents of the African Commission Issues:

1. The African Charter on Human and Peoples’ Rights and its Protocols are unique among the regional human rights instruments. Discuss.

2. What are the socio-economic rights protected under the African Charter? Do these rights entail state obligations to ‘fulfil’?

3. Regional human rights norms protect the rights of individual. Discuss. 4. The approach of the African Commission to contentious rights has been

commendable and should be examined closely. Discuss. 5. Do you support the ‘implied rights’ theory embraced by the Commission in the

Ogoniland (SERAC) case? 6. Of all the international and regional treaties on human rights the Africa Charter

takes the most sensible approach to group rights. Discuss. 7. Does the right to development as enshrined in the African Charter have any legal

significance? Further Reading: Ankumah, E, The African Commission on Human and Peoples’ Rights. Practices and Procedures, Martinus Nijhoff, The Hague, 1996, Chapters 1, 2 and 5 Anyangwe, C, ‘Obligations of states parties to the African Charter on Human and Peoples’ Rights’, 10 RADIC (1998) 625 Evans, M and Murray R, The African Charter on Human and Peoples’ Rights. The System in Practice, Cambridge University Press, 2002, Chapters 5 and 6

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Okere, OB, ‘The Protection of Human Rights in Africa and the African Charter on Human and Peoples' Rights: A Comparative Analysis with the European and American Systems’ 6 Human Rights Quarterly (1984) 141-159 Umozurike, UO, The African Charter on Human and Peoples’ Rights, Martinus Nijhoff, The Hague, 1998 Bedjaoui M, ‘The Right to Development and the jus cogens’, 2(2) Lesotho Law Journal (1986) 93-129 Dersso, SA, ‘The Jurisprudence of the African Commission on Human and Peoples’ Rights with Respect to Peoples’ Rights’ (2006) 6 AHRLJ 358 Gittleman, R., ‘Peoples' Rights: A Legal Analysis’, 22 Virginia Journal of International Law, (1982) 667-714 Howard, R, ‘Group versus Individual Identity in the African Debate on Human Rights’, in An Na'im A and Deng FM, Human Rights in Africa: Cross Cultural Perspectives, Brookings Institute, 1990, pp.159-183 Klabbers, J and R Lefeber, Africa: Lost between self-determination and uti possidetis, in C Brolmann et al, Peoples and Minorities in International Law, 1993 at 37 Ratner, SR, ‘Drawing a better line: Uti Possidetis and the borders of new states’, 90 AJIL (1996) 590 Swanson, J, ‘The Emergence of New Rights in the African Charter’, 12 N.Y.L. Sch. J. Int'l & Comp. L. (1991) 307-33 Part 3: The main mechanism for the promotion and protection of human rights in Africa: the African Commission on Human and Peoples’ Rights This last session examines the work of the African Commission, how it operates and in particular the communications and state reporting functions. The appointment of special mechanisms will also be considered. Essential Reading: Mugwanya, GW, ‘Examination of State Reports by the African Commission: A Critical Appraisal’, 1(2) African Human Rights Law Journal (2001) pp. 268-284 Viljoen, F, ‘The Special Rapporteur on Prisons and Conditions of Detention in Africa: Achievements and Possibilities’ 27(1) Human Rights Quarterly (2005) pp. 125-171

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Instruments and Cases: Articles 47-59, and 62 ACHPR Rules of Procedure of the African Commission See the guidelines on the Commission’s website with respect to state reporting and communications. Resolution on Granting Observer Status to National Human Rights Institutions in Africa Guidelines to National Periodic Reporting under Article 62 of the African Charter on Human and Peoples’ Rights (Amended Guidelines) Resolution on the Criteria for Granting and Enjoying Observer Status to Non-Governmental Organisations Working in the Field of Human Rights with the African Commission on Human and Peoples’ Rights Issues:

1. The reporting procedures under the ACHPR are really not useful as an enforcement mechanism at all and should no longer be used. Discuss.

2. Comment on the failure of the Commission to make public the Concluding Observations adopted after the examination of state reports.

3. What effective steps can be undertaken against states that fail to report? 4. The regional human rights bodies do not suffer from lack of powers to enforce

the rights in the Charter and other human rights treaties, just an inability to exploit them to their full potential. Discuss.

Further Reading: Ankumah, E, The African Commission on Human and Peoples’ Rights. Practices and Procedures, Martinus Nijhoff, The Hague, 1996, Chapters 3 and 4 Evans M and Murray, R, The African Charter on Human and Peoples’ Rights. The System in Practice, Cambridge University Press, 2002, Chapters 2, 3 and 10 Gaer, FD, ‘First Fruits: Reporting by States under the African Charter on Human and Peoples’ Rights’ (1992) 10 Netherlands Quarterly of Human Rights 29

Hatchard, J, ‘Reporting Under International Human Rights Instruments by African Countries’, 38 Journal of African Law (1994) 61-63

Murray, R, ‘Report of the 1999 Sessions of the African Commission on Human and Peoples’ Rights’, 22 HRLJ (2001) 172, (section on state reports: pp.186-198)

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Week 16: Equality and Non-discrimination

Lorna McGregor

It can be argued that the central engine for such achievements as there have been in the advancement of human rights as a universal idea has been the struggle for equality of treatment of all human beings. Certainly the norms of equality in the Charter and the Universal Declaration were seized upon by those who suffered discrimination initially on grounds of so called race and gender. The equality struggle continues on both these fronts but also on other grounds including religion or belief and those that have emerged later such as disability, sexual orientation and age. Equality is not a simple concept in theory or practice but it expresses, along with the linked concept of non –discrimination, a fundamental principle of international human rights and humanitarian law. As the topic is particularly large and fast-moving, this class will first examine some of the general principles on equality and non-discrimination before looking at three specific in which equality and non-discrimination continue to present challenges: gender, disability and sexual orientation.

Essential readings:

General

Fredman, S., ‘Combating racism with Human Rights: The right to equality’, in Fredman, S. (ed.), Discrimination and Human Rights: The Case of Racism (Oxford, Oxford University Press, 2001), pp. 9-44. Moeckli, D., Shah, S. And Sivakumaran, S. (eds.) International Human Rights Law (Oxford University Press, 2010), chapter 9, ‘Equality and Non-Discrimination’ On Disabilities Megret, F, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ 30 Human Rights Quarterly (2008), pp. 494-516. OHCHR, ‘Forgotten Europeans, Forgotten Rights; The Human Rights of Persons Placed in Institutions’ (2011) On Gender Banda, F., Project on a Mechanism to Address Laws that Discriminate Against Women, Commissioned by OHCHR/Women and Gender Unit, 2008. Available online Human Rights Council, ‘Accelerating Efforts to Eliminate All Forms of Violence against Women: Ensuring Due Diligence in Prevention’ A/HRC/14/L.9/Rev.1 (16 June 2010) UN Entity for Gender Equality and the Empowerment of Women (look at the website)

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On Sexual Orientation The Yogyakarta Principles: The Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity (2006). Available online O’Flaherty, M. and Fisher, ‘Sexual Orientation, Gender Identity and International Human Rights Law: Contextualising the Yogyakarta Principles’ 8(2) Human Rights Law Review, (2008), pp. 207-248. Instruments: African Charter on Human and Peoples Rights, Articles 2, 3, 18(3) – (4) and 28 American Convention on Human Rights, Articles 1 and 24 Convention on the Elimination of All Forms of Discrimination against Women (1979) and Protocol (1999) Convention on the Rights of Persons with Disabilities (2006) European Convention on Human Rights, Article 12 and Protocol 12 ICCPR, Articles 2, 3, 26; ICESCR, Articles 2(2) and 3 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990) UDHR, Articles 1, 2(1) and 7 International and Regional Documents CEDAW Committee, General Recommendation No. 25, on Temporary Special Measures (2004). Economic Social and Cultural Rights Committee, General Comment No. 20, Non-Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2) (2009) EU Council Directive 2000/43/EC of 29 June 2000, Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin. Council Directive 2000/78/EC of 27 November 2000, Establishing a General Framework for Equal Treatment Employment and Occupation. UN Human Rights Committee, General Comments Nos. 18 and 28

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UN Human Rights Council, ‘Accelerating Efforts to Eliminate All Forms of Violence against Women: Ensuring Due Diligence in Prevention’ A/HRC/14/L.9/Rev.1 (16 June 2010)

Jurisprudence On Disabilities Farcas v. Romania (Application No.32596/04), Admissibility decision of the European Court of Human Rights, 30 September 2010 On Gender CEDAW, Enquiry by the CEDAW Committee into the situation in Ciudad Juarez, UN Doc. CEDAW/C/2005/OP.5/Mexico, 27 January 2005. CEDAW, Vertido v. Philippines, CEDAW/C/46/D/18/2008 (1 September 2010) Opuz v Turkey (Application No. 33401/02), Judgment of the European Court of Human Rights Inter-American Commission on Human Rights, Jessica Lenahan v. United States, Merits Report, No. 80/11 (2011) IACtHR, Case of González et al. (‘Cotton Field’) v. Mexico (Preliminary Objection, Merits, Reparations and Costs) Judgment of 16 November 2009 On Sexual Orientation Naz Foundation v Government of NCT of Delhi and Others, WP(c) No. 7455/2001, High Court of Delhi, 2 July 2009. Further readings Braun, T., and Dufresne, M., “Catalyst 2005: Global Perspectives on Successful Implementation of Human Rights of Women”, 3(1) Essex Human Rights Review (2006), p. 80. Available online Charlesworth and Chinkin, The Boundaries of International Law: a Feminist Analysis (Manchester, Juris Publishing, 2000). Cook, Rebecca and Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives (University of Pennsylvania Press, 2011)

Council of Europe, ‘Discrimination on grounds of sexual orientation and gender identity in Europe’ (June 2011)

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Kiyutin v. Russia, (Application No. 2700/10), Judgment of the European Court of Human Rights, 10 March 2011 (on discrimination of persons living with HIV) Issues: 1. CEDAW requires governments to take extensive action against gender

discrimination. Many states have made substantial reservations to the convention. What is the effect of and validity of the reservations?

2. Will the new optional complaint mechanism to CEDAW really make a difference? 3. Is the freedom of sexual orientation a universal right?

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Week 18: Minorities and Indigenous Peoples

Professor Geoff Gilbert

Most if not all states are composed of, on the one hand, a majority population and, on the other, national or ethnic, religious, linguistic or cultural minorities. Such communities sometimes think of themselves as “nations”. Some of these even aspire to independent statehood. International law guarantees individuals protection against discrimination as well as equality in law and in fact. But how can this be achieved in principle and in practice? What function do “minority rights” serve? To what extent does international law recognise special rights for persons belonging to minorities and indigenous peoples? To what extent does it recognise rights inhering in the minority group or indigenous community as a whole or per se? What is the specific content these rights? And can a "national minority" invoke the right to self-determination to claim separate statehood?

Essential readings:

Rodley, N., ‘Conceptual Problems in the Protection of Minorities - International Legal Developments’ 17 HRQ (1995), pp. 48-71. Gilbert, G., ‘The Burgeoning Minority Rights Jurisprudence of the European Court of Human Rights’, 24 HRQ (2002), pp. 736-780. Packer, J, ‘The Contemporary Protection of Minorities’, in M. Bergsmo (ed.), Human Rights and Criminal Justice for the Downtrodden (essays in honour of Asbjorn Eide), (The Hague, Kluwer Law International, 2003), pp. 471-486. Packer, J. ‘Reflections on the Protection of Minorities in Kosovo/a’, contribution to a Meeting of Experts on the Protection of Minorities in Kosovo, Maastricht, 20-22 March 2006; Geneva Centre for Security Policy Instruments: ICCPR, article 27; ICERD articles 1-3; and CRC, article 30 Human Rights Committee, General Comment 23(50) (1994) UN Declaration on the Rights of Persons belonging to National or Ethnic, Religious and Linguistic Minorities (1992) UN Declaration on the Rights of Indigenous Peoples (2007) Council of Europe, Framework Convention for the Protection of National Minorities (1995) CSCE Copenhagen Document of the Meeting on the Human Dimension (Chapter IV, 1990)

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Cases: Lovelace v Canada, HRC Communication No. R.6/24 Kitok v. Sweden, HRC Communication No. 197/1985 Lubikon Lake Band v. Canada, HRC Communication No. 167/1984 Ballantyne & Davidson, and McIntyre v Canada, HRC Communication Nos. 359/1989 and 385/1989 Apirana Mahuika v. New Zealand, HRC Communication No. 547/1993 Ignatane v. Latvia, HRC Communication No. 884/1999 Sejdić and Finci v. Bosnia and Herzegovina (Application No. 27996/06), Judgment, Euroopean Court of Human Rights, 22 December 2009 Issues: 1. Many States are composed of, on the one hand, a majority population and, on the

other, ethnic, religious or linguistic minorities. Such minorities often think of themselves as nations. Some of these even aspire to independent statehood. International law guarantees individuals against discrimination by virtue of this minority status. To what extent does it recognise special rights for them? To what extent does it recognise rights inhering in the minority group as a whole?

2. Can a “national minority” invoke the right to self-determination to claim separate statehood?

Further readings: Packer, J., “Problems in Defining Minorities”, in D. Fottrell and B. Bowring (eds.), Minority and Group Rights in the New Millennium (The Hague: Kluwer Law International, 1999), pp. 223-274. Packer, J., “On the Content of Minority Rights”, in J. Räikkä (ed.), Do We Need Minority Rights? Conceptual Issues (The Hague, Martinus Nijhoff Publishers, 1996), pp. 121-178. Thornberry, P., International Law and the Rights of Minorities (Oxford, OUP, 1991). Limited preview available online Hannum, H., Autonomy, Sovereignty and Self-Determination (University of Pennsylvania Press, 1996). Limited preview available online Musgrave, T., Self-determination and National Minorities (Oxford, OUP, 2000). Limited preview available online

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Anaya, J., Indigenous Peoples in International Law (Oxford, OUP, 2004).

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Week 18: Freedom of Thought, Conscience and Religion, and Freedom of Expression

Mr. Scott Sheeran

A. Freedom of Conscience, Religion and Belief The experience of persecution and discrimination on grounds of holding beliefs considered unacceptable or heretical is sadly not a bygone phenomenon in the world. Intolerance towards others because of their beliefs is a major international concern and is the focus of the mandate of a Special Rapporteur of the UN Human Rights Council. No treaty on religious discrimination has ever been adopted by States although one exists in draft. (Compare the relative ease with which the Conventions on racial and sex discrimination were agreed). The international standards on freedom of religion and belief, nevertheless, are reasonably well articulated. There remain areas of uncertainty, for example, over the limits of the right to promote one’s convictions and to convert others to them. The international standards protect all beliefs including not only religious but atheistic and agnostic as well as the individual right not to have any belief. The problems largely lie in the resistance of states and their peoples to embrace the implications of these standards in practice. The relationship between state and religion is a highly contentious issue in some countries in particular as to the duty of states to act with neutrality between religious faiths. The most publicised issue in that context in recent years in Europe, but not only in Europe, has been over public display of religious symbols (the Islamic headscarf) raising the question of the link between secularism and human rights. A final issue raised in this session is on the issue of conscientious objection to military service: Is there a recognised right to refuse to serve in the military when conscripted to do so? Essential readings: Boyle, K., “Freedom of Religion in International Law”, in J. Rehman and S.C. Breau (eds.), Religion, Human Rights and International Law (The Hague: Martinus Nijhoff Publishers, 2007), pp. 23-52 Instruments: Article 18 ICCPR and equivalent guarantees in regional instruments especially Article 9 ECHR Article 14 ICESCR Human Rights Committee, General Comment 22 The 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, ILM, (1982). Available online

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UN Special Rapporteur on Religious Intolerance. Available online Cases: Kokkinakis v. Greece, (Application No. 14307/88), Judgment of the European Court of Human Rights, 25 May 1993. Osman Ulke v. Turkey (Application No. 39437/98), Judgment of the European Court of Human Rights, 24 April 2006. Leyla Sahin v. Turkey (Application No. 44774/98), Judgment of the European Court of Human Rights, 29 June 2004. Hudoyberganova v. Uzbekistan, Human Rights Committee, Communication No. 931/2000, 2004. Lautsi v. Italy (Application no. 30814/06), Judgment of the European Court of Human Rights, 11 March 2011. Further readings: Evans, C., Freedom of Religion Under the European Convention on Human Rights (Oxford, OUP, 2001). Boyle, K, “Thought, Expression, Association and Assembly” in Moeckli, D., Shah, S. And Sivakumaran, S. (eds.) International Human Rights Law (Oxford University Press, 2010) pp. 257 – 279.

Zucca, L., “Lautsi: A Commentary of the Grand Chamber Decision”, International Journal of Constitutional Law (2011 forthcoming) online.

B. Freedom of Expression

Freedom of Information was declared to be the "touchstone of all the freedoms to which the United Nations is consecrated" in an early G.A. Resolution. It is certainly a touchstone of democratic society. In a political system in which every elector has in principle the right to be heard the right to speak one’s mind, to communicate, to receive and to impart information and ideas, can be termed a functional right of democracy. The right embraces not only the individual right of freedom of expression but freedom of media of all sorts. However, it does not explicitly, as presently formulated in international law, extend to "freedom of information" i.e. the right to know information held by public authorities. However, in 2006 the Inter-American Court became the first international human rights tribunal to hold that such a right was part of the guarantee of freedom of expression. Access to information laws are a feature of an increasing number of states in all world regions.

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The issues are legion including the impact of new technologies such as the Internet and media pluralism, but inevitably a concern is with the limits of speech. What of hate speech? How should this form of speech be responded to? What of limits on speech by reason of national security? Or where speech is offensive to religion (The Danish Cartoons and Defamation of Religions controversies)? And there are many other questions. The seminar will cover the parameters of the freedom mainly by reference to Articles 19 and 20 of the ICCPR. However, the most developed international jurisprudence is to be found in the regional courts: Inter-American and European.

Essential readings:

See the Special Rapporteur on Freedom of Expression. Available online Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, A/HRC/11/4 30 April 2009, especially Chapters III and IV. Boyle, K., ‘Hate Speech - The United States Versus the Rest of the World?’, 53 Maine L. Rev. (2001), pp. 487-502. The 8th Informal Asia-Europe Meeting (ASEM) “Freedom of Expression”, Final Report September 2007, (Boyle, K. & George, C. rapporteurs). Available online Boyle, K., ‘The Danish Cartoons’ 24(2) Netherlands Quarterly of Human Rights (2006), pp. 185-191

Instruments: ICCPR, Articles 19 and 20 ICERD, Article 4 Relevant Articles of the Regional Conventions.

Human Rights Council Resolution, “Combating Defamation of Religion” A/HRC/10/L.2/Rev 1, March 26 2009. The Johannesburg Principles on National Security, Freedom of Expression and Access to Information (1995). Available online Cases: Handyside v. United Kingdom, (Application No. 5493/72), Judgment of the European Court of Human Rights, 7 December 1976

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Jersild v. Denmark, (Application No. 15890/89), Judgment of the European Court of Human Rights, 23 September 1994 Faurisson v. France, HRC Communication No. 550/1993, 8 November 1996 Lehideux and Isorni v. France, (Application 24662/94), Judgment of the European Court of Human Rights, 23 September 1998 Lingens v. Austria, (Application No. 9815/82), Judgment of the European Court of Human Rights, 8 July 1986 Thorgeir Thorgeirson v. Iceland, (Application No. 13778/88), Judgment of the European Court of Human Rights, 25 June 1992 The Jewish Communities of Oslo and Trondheim, Kirchner, Paltiel, the Norwegian Antiracist Centre and Butt v. Norway, CERD Communication 30/2003, 25 August 2005 Issues: 1. How should hate speech be responded to? 2. Is Defamation of Religion a human rights concept? 3. Are limits on speech legitimate in the contexts of counter terrorism and national

security?

Further readings:

Barendt, E. M., Freedom of Speech (Oxford, Oxford University Press, 2005) Farrior S.” Molding the Matrix: The Theoretical and Historical Foundations of International Law and Practice Concerning Hate Speech” 14(1) Berkeley Journal of International Law 1996, pp. 1-98. Available online

OHCHR, Expert seminar on the links between articles 19 and 20 of the International Covenant on Civil and Political Rights (ICCPR): Freedom of expression and advocacy of religious hatred that constitutes incitement to discrimination, hostility or violence. Available online

Parmar S, “The Challenge of “Defamation of Religions” to Freedom of Expression and the International Human Rights System” European Human Rights Law Review 2009, pp. 353-373. Laptsevich v. Belarus, HRC Communication No. 780/1997, 20 March 2000 Mukong v. Cameroon, HRC Communication No. 458/199, 21 July 1994 Otto-Preminger Institut v. Austria, (Application No. 13470/87) Judgment of the European Court of Human Rights, 20 December 1994.

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Wingrove v. UK, (Application No. 17419/90) Judgment of the European Court of Human Rights, 25 November 1996. Public Prosecutor v. Weiler, Tribunal de Grand Instance de Paris, 3 March 2011.

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Week 19: Freedom of Association and the ILO

Professor Sheldon Leader

The Structure and Function of the International Labour Organisation

Essential readings: The best way of getting a general introduction to the ILO is via its website. See particularly “About the ILO”. at http://www.ilo.org/public/english/about/index.htm. Look at the organizational chart and the constitution. For the special mechanisms for enforcement of the right to freedom of association, see http://www.ilo.org/public/english/standards/norm/enforced/foa/index.htm For a summary of the relevant decisions by the ILO Freedom of Association Committee, relevant to the discussion below, please consult the Digest of Decisions 2006

For the Freedom of Association Committee generally, see http://www.ilo.org/global/What_we_do/InternationalLabourStandards/ApplyingandpromotingInternationalLabourStandards/CFA/lang--en/index.htm Swepston, L., ‘Human Rights Complaint Procedures of the ILO’, in Hannum, H. (ed.), Guide to International Human Rights Practice (Pennsylvania, Pennsylvania University Press (1999), pp. 85-102.

Human Rights Watch, ‘Israel: New Anti-boycott Law is a Threat to Freedom of Expression’. Available online

The Right to Freedom of Association

Instruments:

ILO Freedom of Association Committee, Decisions 277, 280 and 287 (Extracts of decisions of the ILO Freedom of Association Committee will be made available to the class.) Issues:

1. What (if anything) is altered in our understanding of the status of the right to freedom of association as a result of its inclusion in the ILO's declaration on fundamental principles and rights at work?

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2. Provide in your own words a definition of the right to freedom of association.

3. “If you interpret the right of freedom of association so as to accord exclusive bargaining rights only to a union with the majority of membership for a given class of employee, deemed the most representative union, then you penalise minorities who might be among the worst off in the workplace.” What does the ILO Freedom of Association Committee think about this? Digest 2006, paras 309 ff

4. Union security provisions are arrangements whereby an employee cannot have a job without belonging to a trade union. Is this, in your view, compatible with the right to freedom of association? What does the ILO Freedom of Association Committee think? Paras 363 ff and cf paras 324, 480

5. What would the ILO’s attitude be towards a trade union that gives public support to the Labour Party? What is the appropriate scope of a union’s political activity according to it? Digest Chapter 9.

6. What, if any, restrictions should a trade union be entitled to place on membership in the light of an individual’s political beliefs and practices? Compare the decision by the European Court of Human Rights in Associated Society of Locomotive Engineers & Firemen (ASLEF) v. the United Kingdom (application no. 11002/05) with the Digest para 212.

7. What is the legitimate restriction on the objectives of a permissible strike, according to the ILO?

Further readings: S. Leader., Freedom of Association (New Haven, Yale University Press, 1992) S. Leader, ‘Can You Derive the Right to Strike from the Right to Freedom of Association?’ Canadian Labour and Employment Law Journal, Vol. 15, No. 2 (2010)

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Week 20: Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment

Professor Sir Nigel Rodley

Essential readings:

Rodley, N., and Pollard, M., The Treatment of Prisoners under International Law (Oxford, OUP, 3rd edition, 2009), chapters 2, 3, 4, 5, 9 and 10. Instruments: UDHR, article 5. ICCPR, articles 7 and 10. American Convention on Human Rights, article 5. Inter-American Convention to Prevent and Punish Torture African Charter, article 5. UN Convention against Torture (1984) and Optional Protocol Rome Statute of the International Criminal Court, article 7. European Convention on Human Rights, article 3. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (1987). Geneva Conventions, Common Article 3 Human Rights Committee, General Comment 20 and General Comment 21. Human Rights Committee, Concluding Observations on the United States of America, UN doc. CCPR/C/USA/CO/3 (2006) Principles on the effective investigation and documentation of torture and other cruel, inhuman or degrading treatment or punishment (the Istanbul Principles). Available online

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Cases: Furundzija 17-95-17/1, Judgment, International Criminal Tribunal for the Former Yugoslavia Ireland v. UK (Application No. 5310/71), Judgment, European Court of Human Rights (1980) Aydin v. Turkey, (Application No. 23178/94), Judgment, European Court of Human Rights, 25 September 1997 Ribitsch v. Austria, (Application No. 18896/91), Judgment, European Court of Human Rights, 4 December 1995 Selmouni v. France, (Application No. 25803/94), Judgment, European Court of Human Rights, 28 July 1999 Giri v. Nepal, Human Rights Committee Communication 1761/2008, 27 April 2011 Chahal v. United Kingdom, (Application No. 22414/93), Judgment, European Court of Human Rights 25 October 1996 Saadi v. Italy, (Application No. 37201/06), Judgment European Court of Human Rights 28 February 2008 Agiza v. Sweden, CAT Communication 233/2003, 20 May 2005. Issues: 1. Despite being widely resorted to, torture and similar ill-treatment are prohibited by

all general human rights treaties and a number of other instruments and, if any human rights obligation is part of general international law, the prohibition of torture is one. Why?

2. What kinds of behaviour amount to torture? 3. What treatment constitutes cruel, inhuman or degrading treatment or punishment?

What is the significance of the distinction? 4. To what extent does the prohibition extend to lawful sanctions, e.g. corporal

punishment? 5. How do you establish that torture was taken place? What type of evidence could you

use? What is the standard of proof? On whom rests the burden of proof? 6. What are the legal consequences for a state that engages in torture or other ill-

treatment and for the individual perpetrators? What machinery is there to deal with the problem?

Further readings: Burgers, J., and Danelius, H., The United Nations Convention against Torture (Nijhoff, 1988).

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Ingelse, C., The UN Committee Against Torture: An Assessment (Kluwer, 2001) Nowak, M., The United Nations Convention against Torture: A Commentary (Oxford, OUP, 2008). Rodley, N., ‘The Prohibition of Torture: Absolute Means Absolute’, 34 Denver Journal of International Law and Policy (2006) pp. 145-160

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Week 21: The Right to Life and Unlawful Killings, and Enforced Disappearances

Professor Sir Nigel Rodley

A. The Right to Life and Unlawful Killings

Essential readings:

Rodley, N., and Pollard, M., The Treatment of Prisoners under International Law (Oxford, OUP, 3rd edition, 2009), chapters 6 and 7. Documents: Optional Protocol to the ICCPR (See articles 2 and 6) UN Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (1989). Available online UN Code of Conduct for Law Enforcement Officials (1979). Available online Council of Europe, Declaration on the Police (1979). Available online UN Principles on the Restraints on the Use of Force and Firearms by Law Enforcement Officials (1990). Available online UN Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty (1984). Available online Human Rights Committee, General Comment No. 6. Cases: McCann v. UK, (Application No. 18984/91), Judgment, European Court of Human Rights, 5 September 1995 Kaya v. Turkey, (Application No. 22729/93), Judgment, European Court of Human Rights, 19 February 1998 Nachova and Others v. Bulgaria, (Applications Nos. 43577/98 and 43579/98) Judgment, European Court of Human Rights, 6 July 2005 Soering v. United Kingdom, Application No.14038/88), Judgment, European Court of Human Rights, 7 July 1989

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Ocalan v. Turkey, (Application No. 46221/99), Judgment, European Court of Human Rights, 12 May 2005 Velasquez Rodriguez v. Honduras, Judgment, Inter-American Court of Human Rights, 29 July 1988 Guerrero v. Colombia, HRC Communication No. R.11/45, (1982) Judge v. Canada, HRC Communication No. 829/1998, 5 August 2002 Issues: 1. When can law enforcement officials resort to the use of lethal force? 2. When can the legal system provide for capital punishment? 3. What are the legal consequences of non-compliance with the right to life? 4. What specific international machinery can be invoked including the Special

Rapporteur on extrajudicial, summary or arbitrary executions? Further readings: Schabas, W., The Abolition of the Death Penalty in International Law (Cambridge, Cambridge University Press, 3rd ed., 2002) Melzer, N., Targeted Killings in International Law (OUP, 2008) B. Enforced Disappearances Essential readings: Rodley, N., and Pollard, M., The Treatment of Prisoners under International Law (OUP, 3rd edn. 2009), chapter 8. Nowak, M., Civil and Political Rights, Including Questions of Disappearances and Summary Executions, E/CN.4/2002/71, 8 January (2002). Instruments: UN Convention on the Protection of All Persons against Forced Disappearance. UN Declaration on the Protection of All Persons from Enforced Disappearances Inter-American Convention on the Forced Disappearance of Persons

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Cases: Velasquez Rodriguez v. Honduras, Judgment, Inter-American Court of Human Rights, 29 July 1988 Kurt v. Turkey (Application No. 24276/94), Judgment, European Court of Human Rights, 27 April 1998 Timurtas v. Turkey (Application No. 23531/94), Judgment, European Court of Human Rights, 13 June 2000 Quinteros v. Uruguay, HRC Communication No. 107/1981, 21 July 1983 Sarma v. Sri Lanka, HRC Communication No. 950/2000, 31 July 2003 Kimouche v. Algeria, HRC Communication No. 1328/2004, 16 August 2007 Issues: 1. Some governments have resorted or allowed their security forces to resort to the

practice of abducting suspected (violent or non-violent) opponents subsequently denying all knowledge of or responsibility for their fate. How can such a disappearance be defined? What human rights does it violate?

2. The UN is drafting a convention against the practice; the OAS has adopted a convention against the practice. What is their purpose?

3. What are the legal consequences of “disappearance”?

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Week 22: States of Emergency and (Counter-) Terrorism; Armed Conflicts

Dr. Noam Lubell Note: States of emergency and (counter-) terrorism will be addressed in the first two hour slot, and armed conflicts in the second two hour slot.

A. States of emergency

Essential readings:

Human Rights Committee, General Comment No.29 De Schutter, O., International Human Rights Law, Chapter 6 ‘Derogations in time of public emergency’ pp.513-560. (book in library and available online through library website). Rodley, N. and Pollard, M., The Treatment of Prisoners under International Law (Oxford, OUP, 3rd edition, 2009), chapter 11, part 3. Hampson, F., Study on Human Rights protection during situations of armed conflict, internal disturbances and tensions, Council of Europe Steering Committee for Human Rights (16th January 2001) Available online Instruments: ICCPR, Art.4. ECHR, Art.15. ACHR, Art.27. Geneva Conventions (1949), Article 3 common to all four Conventions. Issues:

1. Is it up to the state to determine whether or not there is a state of emergency? 2. Are restrictions on human rights inevitable during states of emergency? 3. What limitations, if any, are there on measures a state can adopt in situations of

emergency with regard to potentially derogable rights? Further Reading:

European Commission, Greek Case, 12 Y.B. Eur. Conv. on H.R. 1 (1969).

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Brannigan and McBride v. United Kingdom (Application Nos.14553/89 and 14554/89), Judgment, European Court of Human Rights, 25 May 1993

Aksoy v Turkey (Application No. 21987/93), Judgment, European Court of Human Rights, 26 November 1996

Castillo Petruzzi and others, judgment, Inter-American Court of Human Rights, 30 May 1999

A and others v. Secretary of the State for the Home Department, House of Lords, 16 Dec. 2004 A v. UK (Application no. 3455/05), Judgment, European Court of Human Rights, 19 February 2009

Fitzpatrick, J., Human Rights in Crisis - The International System for Protecting Rights During States of Emergency (University of Pennsylvania Press, 1994), especially chapter 1-3.

Lubell, N., Extraterritorial Use of Force Against Non-State Actors (Oxford University Press, Oxford 2010). Chapter 8. (book in library and available online through library website).

Oraá, J., Human Rights in States of Emergency in International Law (Oxford, Clarendon Press, 1992). B. Counter-Terrorism after 9/11

Dr. Noam Lubell

Essential Reading:

H. Duffy, International Human Rights Law: The Legal Framework in the ‘War on Terror’ and The Framework of International Law (H. Duffy), (2005), pp. 274-290

Chapter 1: Human Rights versus Security in Assessing Damage, Urging Action in Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights (EJP Report) (2009), pp. 16-25, available online

UN Security Council Resolution 1373 (the Counter-Terrorism Committee), available online

UN Security Council resolution 1267 (the Al-Qaida and Taliban Sanctions Committee) available online

United Nations Global Counter-Terrorism Strategy (2006), Part IV, available online

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Alston, P., Morgan-Foster, J.,& Abresch, W., ‘The Competence of the UN Human Rights Council and its Special Procedures in relation to Armed Conflicts: Extrajudicial Executions in the ‘ War on Terror’’ 19(1) European Journal of International Law (2008), pp. 183-209

Lubell, N., Extraterritorial Use of Force Against Non-State Actors (Oxford University Press, Oxford 2010). Chapter 1. (book in library and available online through library website).

Blacklisted: Targeted sanctions, preemptive security and fundamental rights, Report by Sullivan, G. & Hayes, B. (European Center for Constitutional and Human Rights, 2010). Available online

Killing Osama bin Laden: has justice been done? - Commons Library Standard Note. Available online

Issues:

1. Are we living in an ‘age of terror’? 2. Are human rights and security contrasting notions in need of balancing? 3. Have human rights protections been marginalised in the past decade? 4. What are some of the specific concerns arising from counter-terrorism practices

in recent years? 5. Has counter-terrorism reshaped the international legal order, impacting not only

on human rights but also international peace and security?

Further Reading:

Nabil Sayadi and Patricia VInck v. Belgium, HRC Communication No. 1472/2006, UN Doc. CCPR/C/94/D/1472/2006, 22 October 2008

Hamdan v. Rumsfeld, Decision of the US Supreme Court, 29 June 2006

Boumediene v. Bush, Decision of the US Supreme Court, 12 June 2008

Rasul et al v. Bush, President of the United States, US Supreme Court, 28 June 2004.

A and Others v. Secretary of State (No 2), UK House of Lords [2005] UKHL 71

Her Majesty's Treasury v. Ahmed, al-Ghabra, R and others, UK Supreme Court, [2010] UKSC 2

Secretary of State for the Home Department v. AP, UK Supreme Court, [2010] UKSC 24

Holder v Humanitarian Law Project , US Supreme Court, 21 June 2010

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J. Fitzpatrick, ‘Speaking law to power: the war against terrorism and human rights’, 14(2) European Journal of International Law (2003), pp. 241-264.

S. von Schorlemer, ‘Human Rights: Substantive and Institutional Implications of the War Against Terrorism’, 14(2) European Journal of International Law (2003), pp. 265-282.

Reports of the UN Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism. Available online

International Council on Human Rights Policy, Human Rights after 11 September, (International Council on Human Rights Policy, 2002). Available online

UN High Commissioner for Human Rights, Digest of Jurisprudence of the UN and Regional Organisations on the Protection of human Rights While Countering Terrorism. Available online

Inter-American Commission on Human Rights, Report on Terrorism and Human Rights (2002). Available online

OSCE, ODIHR Activities Related to Preventing and Combating Terrorism. Available online.

Committee of Ministers, Council of Europe, Guidelines on Human Rights and the Fight against Terrorism, (Council of Europe, July 2002). Available online here and here

Robert, A., ‘Counterterrorism, Armed-forced and the Laws of War’ 44 (1) Survival (2002), pp. 7-32.

Constitutional Court of the Russian Federation, Judgment on the Constitutionality of the Presidential Decrees and the Resolutions of the Federal Government Concerning the Situation of Chechnya, 31 July 1995. Available online

Mundis, D., ‘The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts’, 96 American Journal of International Law (2002), pp. 320-328

Fitzpatrick, J., ‘Jurisdiction of Military Commission and the Ambiguous War on Terrorism’ 96 American Journal of International Law (2002), pp. 345-354

Workshop on Relationship Between Human Rights and Human Security, Declaration on Human Rights as an Essential Component of Human Security, San José de Costa Rica, 2nd December 2001.

Ramcharan, B., Human Rights and Human Security. Available online or distributed upon request.

Steyn, J., ‘Guantanamo Bay: The Legal Black Hole’ 53 International and Comparative Law Quarterly (2004), pp.1-16

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C. Introduction to the law of armed conflict (LOAC)

Dr. Noam Lubell

Essential Reading:

"International humanitarian law: answers to your questions" Read questions and answers: 1,2,4,5,6,7,10,14,16,17. Available online

Crimes of War Website Read the entries on: Introduction to International Humanitarian Law; Indiscriminate Attack; Proportionality; Weapons; Military Objectives

Browse the ICRC website and examine the issues they deal with. Read anything there you find of interest.

Issues:

1. What are the principal differences between international and non-international armed conflicts?

2. What are the principal differences between LOAC and human rights law? 3. How does LOAC protect civilians from the dangers of armed conflict? 4. What are the risks to the principle of distinction between military and civilian

(objects and persons)?

Further Reading

1949 Geneva Conventions and their Protocols, Available online

Dinstein, Y., The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press, 2010).

Rogers, A.P.V., Law on the Battlefield, (2nd ed.) Manchester: Manchester University Press (2004).

Lubell, N., Extraterritorial Use of Force Against Non-State Actors (Oxford University Press, Oxford 2010). Chapters 4,5,6. (book in library and available online through library website).

Henckaerts, J., and Doswald-Beck, L., Customary International Humanitarian Law, Volume 1: Rules, ICRC, Cambridge University Press, (2005). Available online

The syllabus for LW803 ILAC class provides detailed readings by subject, for those seeking further information.

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Week 23: Refugees and Internally Displaced Persons

Professor Geoff Gilbert

Issues: The international protection of refugees is a separate set of guarantees for a specific group of persons, but which overlaps with international human rights law and the protection of persons in times of armed conflict. The situation of internally displaced persons fits much more within the ordinary paradigm of international human rights law except insofar as there is a developing body of customary international law that draws on refugee law in order to provide additional protection. The class will look at the strict definition of refugees under international law, non-refoulement, the status of the guiding principles on internally displaced persons, and the role of UNHCR.

Essential readings:

Goodwin-Gill, G and McAdam, J., The Refugee in International Law (Oxford, OUP, 2007), pp. 35-41; 51-134 Morris, N., ‘Protection Dilemmas and UNHCR's Response: A Personal View from within UNHCR’, 9 IJRL 492 (1997) Anonymous, "The UNHCR Note on International Protection You Won't See" 9 IJRL 267 (1997).

Instruments: Convention relating to the Status of Refugees (1951) arts. 1 and 33 Statute of UNHCR (1950) Guiding Principles on Internal Displacement (1998) Protocols 1 and 2 to the Geneva Conventions (1977), arts.70 and 18, respectively. Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) CAT (1984), art. 3 ECHR, art. 3

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Cases: Islam and Shah [1999] 2 AC 629 Saadi v. Italy (Application No. 37201/06), Judgment, European Court of Human Rights 28 February 2008 HJ and HT v SSHD [2010] UKSC 31. Further readings: Clark, T., and Crépeau, F., ‘Mainstreaming Refugee Rights: the 1951 Convention and International Human Rights Law’, 17 NQHR (1999), pp. 389-410 Gorlick, B., ‘The Convention and the Committee against Torture: A Complementary Protection Regime for Refugees’, 11 IJRL (1999), pp. 479-495 Lambert, H., ‘Protection against Refoulement in Europe’, 48 ICLQ (1999), pp. 515-544 Lee, L., ‘The Refugee Convention and Internally Displaced Persons’, 13 IJRL (2001), pp. 363-366 Lavoyer, J., "Refugees and Internally Displaced Persons: International Humanitarian Law and the Role of the ICRC", 305 IRRC (1995), pp. 162-180 Landgren, K., ‘Safety Zones and International Protection: A Dark Grey Area’, 7 IJRL (1995), pp. 436-458 Helton, A., ‘Legal Dimensions of Responses to Complex Humanitarian Emergencies’, 10 IJRL (1998), pp. 533-546

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Week 24: Economic, Social and Cultural Rights – Focus on the Right to the Highest Attainable Standard of Health and the Right to an Adequate Standard of Living

Professor Paul Hunt and Sally-Anne Way

Note: Right to health will be addressed in the first two hour slot and the right to an adequate standard of living with a focus on the right to food, in the second two hour slot. A. Introduction to Economic, Social and Cultural Rights UN Committee on Economic, Social and Cultural Rights, General Comment 3 on the Nature of States Parties’ Obligations (1990). UN Committee on Economic, Social and Cultural Rights, General Comment 16 on the equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the International Covenant on Economic, Social and Cultural Rights) (2005) Yamin, A., “The Future in the Mirror: Incorporating Strategies for the Defence of Economic, Social and Cultural Rights into the Mainstream Human Rights Agenda”, 27(4) Human Rights Quarterly (2005). International Commission on Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights, 1-22. (For an introduction to justiciability of economic, social and cultural rights). Available online Roach K. ‘The Challenges of Crafting Remedies for Violations of Socio-Economic Rights’, in Langford M. (ed.) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008), pp. 46-58. Langford, M. ‘Closing the Gap? An Introduction to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’, Special Issue of Nordic Journal of Human Rights, Vol. 27, No. 1: Perspectives on a New Complaint and Inquiry Procedure: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (2009) 1-28. Available online Further readings:

UN Committee on Economic, Social and Cultural Rights, General Comment 20 on Non-discrimination in economic, social and cultural rights (art. 2, para. 2, of the International Covenant on Economic, Social and Cultural Rights) (2009) Albuquerque, C., ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural

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Rights – The Missing Piece of the International Bill of Human Rights’, 32(1) Human Rights Quarterly (2010), pp. 144-178. Gauri, V., (ed.) Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Cambridge University Press, 2008).

Langa, P., ‘Taking Dignity Seriously: Judicial Reflections on the Optional Protocol to the ICESCR’, Special Issue of Nordic Journal of Human Rights, Vol. 27, No. 1: Perspectives on a New Complaint and Inquiry Procedure: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 2009, 29-38. Available online Vandenbogaerde, A. and Vandenhole, W., The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An Ex Ante Assessment of its Effectiveness in Light of the Drafting Process’, 10(2) Human Rights Law Review (2010), pp. 207-237.

Reference

For Concluding Observations of the UN Committee on Economic, Social and Cultural Rights, use the Treaty Bodies Database. Available online

B. Right to Health

Essential readings:

Potts, H., Accountability and the Right to the Highest Attainable Standard of Health, Available online Freeman, M., ‘The Right to Health’, Morgan, R. and Turner, B. (eds.) Interpreting Human Rights: Social Science Perspectives (2009), pp. 44-67.

Yamin, A and Parra-Vera, O., “How Do Courts Set Health Policy? The Case of the Colombian Constitutional Court”, February 2009 issue of PloS Medicine. Available online

Hunt, P., Annual report of the Special Rapporteur, A/HRC/4/28, 2007 (e.g. health-related cases). Hunt, P., Annual report of the Special Rapporteur, A/HRC/7/11, 2008 (e.g. health systems). Hunt, P., Report of the Special Rapporteur on his mission to India regarding maternal mortality, A/HRC/14/20/Add.2, dated 15 April 2010. Human Rights Council Resolution 11/8. Preventable Maternal Mortality and Morbidity and Human Rights (2009)

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Instruments: ICESCR, article 12 Optional Protocol to the ICESCR, UN Doc. A/63/435 CEDAW, articles 10-12, 14 CRC, article 24, Additional Protocol to the American Convention on Human Rights in the area of Economic, Social and Cultural Rights, “Protocol of San Salvador”, articles 7, 10 African Charter on Human and Peoples’ Rights, articles 16, 18 European Social Charter, articles 3, 7, 11, 13 Constitution of the World Health Organisation. Available online UN Committee on Economic, Social and Cultural Rights, General Comment 14 on the Right to Health. UN Committee on the Rights of the Child, General Comment 4 on Adolescent Health (2003) Cases: Alyne Pimentel v Brazil, CEDAW, Communication No. 17/2008, decision 25 July 2011 (maternal death) Laxmi Mandal vs Deen Dayal Hari Nager Hospital & Ors, W.P.(C) 8853/2008/ Jaitun vs Maternity Home, MCD, Jangpura & Ors, W.P.(C) 10700/2009, High Court of Delhi (India), 4 June (2010). Jorge Odir Miranda Cortez et Al v. El Salvador, Inter-American Commission on Human Rights, Case 12.249, 7 March (2001). Chavez v. Peru, Admissibility Decision of the Inter-American Commission on Human Rights, 3 October (2000). Treatment Action Campaign et al v. Minister for Health et al, Constitutional Court of South Africa, Case CCT 8/02, Judgement of 5 July 2002. International Commission of Jurists v. Portugal, European Committee of Social Rights, (1999). Broeks v. Netherlands, Human Rights Committee, Communication No.172/1984.

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Issues: 1. The right to health raises complex issues of normative content and states’

obligations. Given the notions of ‘progressive realisation’ and ‘resource availability’ in article 2(1) of ICESCR, is it possible and helpful to identify core obligations deriving from article 12 (right to health) of the Covenant which apply to all state parties no matter what their stage of economic development?

2. Can right to health cases be taken by reference to other provisions of international human rights law?

3. Can national law (statute and case-law) help to clarify the normative content of the international right to health?

4. What is the role of the UN Special Rapporteur on the right to the highest attainable standard of health?

5. In your view, what is likely to be the impact of the optional protocol to the ICESCR? Further readings: Toebes, B., ‘The Right to Health’ in Eide et al, Economic, Social and Cultural Rights: A Textbook (Martinus Nijhoff, 2001) p. 169 - 190. Clapham, A. and Robinson. M. (eds), Realizing the Right to Health, (Ruffer, 2009). Gruskin, S., Grodin, M., Annas, G., and Marks, S., (eds), Perspectives on Health and Human Rights (Routledge, 2005). Yamin, A. ‘Beyond Compassion: The Central Role of Accountability in Applying a Human Rights Framework to Health’, 10(2) Health and Human Rights (2008). Available online Hunt, P., Preliminary Report of the UN Special Rapporteur on the Right to Health, 2003, E/CN.4/2003/58 (e.g. introduction to the right to health). Hunt, P., Report of the Special Rapporteur on his mission to Peru, 4 February 2005, E/CN.4/2005/51/Add.3. Dommen, C., ‘Raising Human Rights Concerns in the World Trade Organisation: Actors, Processes and Possible Strategies’, 24 HRQ (2002). Hunt, P., Report of the Special Rapporteur on His Mission to the World Trade Organization, 1 March 2004, E/CN.4/2004/49/Add.1. Ruger, J., ‘Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements’, 18 Yale Journal of Law & the Humanities, (2006), pp. 273-326. Ooms, G. and Hammonds, R., ‘Taking Up Daniels’ Challenge: The Case for Global Health Justice’ 12(1) Health and Human Rights (2010). Available online

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UN Commission on Information and Accountability for Women’s and Children’s Health, Keeping Promises, Measuring Results, 2011. Available online Yamin, A. and Gloppen, S. (eds), Litigating Health Rights: Can Courts Bring More Justice to Health?, Chapter 13 ‘Power, Suffering, and Courts: Reflections on Promoting Health Rights through Judicialization’ by Alicia Yamin, (Harvard University Press, 2011).

C. The Right to an Adequate Standard of Living, with a focus on the Right to Food

Article 11 of the International Covenant on Economic, Social and Cultural Rights explicitly encompasses ‘food, clothing, housing, and … the continuous improvement of living conditions’, the ‘fundamental right of everyone to be free from hunger’ and requires ‘international cooperation’ to achieve this goal. This class will briefly introduce article 11 and then focus on a key element: the right to food. It will analyse contributions to the development and elaboration of the understanding of the right to food, by the international human rights system, including through the General Comment 12 of the UN Committee on Economic, Social and Cultural Rights and the work of the relevant UN Special Rapporteur. Some of the case law on the right to food will be considered to deepen the understanding of the right to food, but we will focus on the global food crisis and the implications from the perspective of the right to food.

Readings

Marks S. and Clapham A, International Human Rights Lexicon (Oxford, Oxford University Press, 2005), chapter on “food” (pp. 163-178).

Eide, A., ‘The Right to an Adequate Standard of Living, including the Right to Food’, in Asbjørn Eide, Catarina Krause and Allan Rosas (eds), Economic, social and cultural rights: a textbook, 2nd ed. (Netherlands: 2001) pp. 149-168.

Ziegler, J, ‘Report of the Special Rapporteur on the Right to Food: Mission to Guatemala’ (18 January 2006) UN Doc E/CN.4/2006/44/Add.1

UN Department of Economic and Social Affairs, ‘Chapter IV: The Global Food Crises’ in The Global Social Crisis: Report on the World Social Situation 2011, (New York, 2011)

De Schutter, O., ‘Report of the Special Rapporteur on the Right to Food: Summary of the report on the global food crisis’, UN doc. A/HRC/9/23, 8 September 2008.

Instruments

International Covenant on Economic, Social and Cultural Rights, Article 11, paras 1 and 2; Convention on the Rights of the Child, Articles 24, 27; Protocol of San Salvador, Article 12; European Social Charter, Article 4.

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General Comment 12, UN Committee on Economic, Social and Cultural Rights (right to food).

General Comment 15, UN Committee on Economic, Social and Cultural Rights (right to water).

FAO Voluntary Guidelines to support the progressive realization of the right to adequate food in the context of national food security, available online

Cases

People’s Union for Civil Liberties v. Union of India and Ors India, Supreme Court Judgement of 2 May, 2003. Communication 155/96 on the exploitation of oil reserves in Ogoniland, Nigeria. Judgment, African Commission on Human and Peoples’ Rights, Judgment of 27 May 2002, ACHPR/COMM/A044/1. See also the original NGO petition by CESR and SERAC. Legal Consequence of the Construction of a Wall in the Occupied Palestinian Territory International Court of Justice, Advisory Opinion: 9 July 2004, paragraphs 130, 134, 152-153, available at:

Issues

1. Read General Comment 12. In the context of the right to food, what do the duties to respect, protect and fulfil mean?

2. From the readings, identify some key obstacles facing the realization of the right to food.

3. Are there duties of international assistance and cooperation in relation to the right to food? If so, what are they?

4. Can we address the global food crisis from the perspective of human rights?

Further Reading

Ziegler, J. Golay, C., Mahon, C. and Way, S. The Fight for the Right to Food: Challenges and Prospects, (London, Palgrave Macmillan, 2011)

UN Department of Economic and Social Affairs, ‘Chapter IV: The Global Food Crises’ in The Global Social Crisis: Report on the World Social Situation 2011, (New York, 2011). Available online

Foodfirst, 12 Myths about Hunger, 12(2) Backgrounder (2006). Available online Way, S. ‘The Role of UN Human Rights Bodies in Promoting and Protecting the Right To Food’ in W.B Eide and U. Kracht (eds) Food and Human Rights in Development (Belgium, Intersentia Press, 2005).

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Courtis, C. ‘The Right to Food as a Justiciable Right: Challenges and Strategies’ 11 Max Plank Yearbook of United Nations Law (2007) FAO The Right to Food and Access to Justice: Examples at the national, regional and international levels, FAO: Rome. Written by C. Golay. Available online

Howard, Rhoda” The Full-Belly Thesis: Should Economic Rights Take Priority Over Civil and Political Rights?” 5 Human Rights Quarterly (1986)

Shue, H. Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy. (Princeton, New Jersey: Princeton University Press, 1980)

Sen, A. Poverty and Famines: An Essay on Entitlement and Deprivation (Oxford, Clarendon Press, 1981)

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Week 25: Redress and Transitional Justice

Lorna McGregor

The issue of remedies arises in two often confused and certainly overlapping contexts: those remedies that states are to provide domestically to avoid international responsibility for human rights violations and those that they are to provide, once having incurred international legal responsibility for a violation. The former, which will be examined briefly from the perspective of the Human Rights Committee General Comment 31 (on ICCPR article 2), consist of the whole range of legislative, administrative and judicial machinery that can avoid or repair the harm that could constitute a human rights violation. The latter, to be examined in greater detail, are the remedies that authoritative bodies, primarily international courts and treaty bodies, order or recommend that violating states implement. While reparation will be seen to consist mainly of compensation, other responses may also be appropriate, including establishment of the facts and bringing to justice individuals who have perpetrated certain kinds of harm, e.g. torture, extra-legal execution and enforced disappearance. An important issue related to redress and reparations is the question of how to deal with the legacy of mass atrocities when a state that has undergone repression or internal or international conflict moves on towards democracy, human rights and the rule of law. The second part of the class will address the relationship between these two concepts and the problems that international human rights law faces when transitional justice processes are at stake. Essential readings:

Bassiouni, C., ‘International Recognition of Victims’ Rights’ 6(2) Human Rights Law Review (2006), pp. 203 – 279 Mallinder, L., “Can Amnesties and International Justice be Reconciled?” 1 International Journal of Transitional Justice (2007), p. 208-230. Orentlicher, D., “Settling Accounts Revisited: Reconciling Global Norms and Local Agency”, 1 International Journal of Transitional Justice 10 (2007). Available online Shelton, D., Remedies in International Human Rights Law (Oxford, OUP 2005), especially pp. 7-21, 268-290 and 389-427. Teitel, R., “Transitional Justice Genealogy” 16 Harvard Human Rights Journal (2003), p. 69–94. Available online

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Instruments: International Law Commission, Draft Articles on State Responsibility, especially articles 28-41, 48-54. Human Rights Committee, General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties, (2004). Basic principles and guidelines on the right to a remedy and preparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, Van Boven-Bassiouni Principles, UN Doc. E/CN.4/2000/62 (2005). Report of Diane Orentlicher, independent expert to update the Set of principles to combat impunity - Updated Set of principles for the protection and promotion of human rights through action to combat impunity, Joinet Principles, E/CN.4/2005/102/Add.1 (2005). Cases: McCann v. UK, (Application No. 18984/91), Judgment, European Court of Human Rights, 5 September 1995 Broniowski v. Poland (Application No. 31443/96), Judgment, European Court of Human Rights, 22 June 2004 Assanidze v. Georgia (Application No. 71503/01), Judgment, European Court of Human Rights, 8 April 2004 Velasquez Rodriguez v. Honduras, Judgment, Inter-American Court of Human Rights, 29 July 1988 Loayza Tamayo v. Peru, Judgment on Reparations and Opinion by Carlos Vicente de Roux, Inter-American Court of Human Rights 27 November 1998 Plan de Sanchez v. Guatemala, Judgment on Reparations, Inter-American Court of Human Rights 19 November 2004 Ximenes Lopes v. Brazil, Judgment, Inter-American Court of Human Rights, 4 July 2006 Issues:

1. Who can claim to be a victim for the purposes of reparation? Is it possible to say that international law applicable to reparations of individuals whose rights have been violated is based on a victim oriented approach? If not, where is the problem?

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2. What kinds of reparations are necessary to provide adequate reparation to victims of gross human rights violations?

3. Should peace prevail over principles of justice and/or truth? What is the view of international law?

Further readings:

Peruse the website of the International Centre for Transitional Justice which contains many important articles and reports on the topic. Akhavan, P., “Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism” 31 Human Rights Quarterly (2009), p. 624. De Greiff, P., The Handbook of Reparations (Oxford, OUP, 2006).

Lemmens, P., Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations (Belgium, Intersentia, 2006). McEvoy, K. And McGregor L., Transitional Justice from Below: Grassroots Activism and the Struggle for Change (Oxford, Hart, 2008). C. Sandoval and R. Rubio-Marin "Engendering the Reparations Jurisprudence of the Inter-American Court of Human Rights: The Promise of the Cotton Field Judgment" in 33 Human Rights Quarterly (2011) 1062-1091.