1

Issues in International Law and Human Rights

LADD315S7

Module Guide

2015/16

LLM/MA Intensive Programmes

2

GENERAL INTRODUCTION TO THE COURSE

Welcome to Issues in International Law and Human Rights. This is a module for the

LLM/MA in Human Rights. The module aims to introduce students to some key issues in

contemporary research and practice in international law and human rights.

The module will be taught in nine seminars. There is set reading for each seminar, which is

divided into essential and further reading. Students are expected to have studied the

essential reading for each seminar and to be prepared to discuss that material in the light of

the discussion questions for each seminar.

3

LECTURER DETAILS

Professor Bill Bowring

b.bowring@bbk.ac.uk

Room B03 (basement), 14 Gower Street

Office hours: after the classes, or e-mail for an appointment

Fred Cowell

f.cowell@bbk.ac.uk

Room 201, 18 Gower Street

Office hours: please e-mail for an appointment

Colleen Thereon

colleen.theron@me.com

Office hours: please e-mail for an appointment

IMPORTANT DATES

Seminars start: Wednesday 9th March 2016

Seminars end: Tuesday 15th March 2016

Coursework Submission Date: Monday 13th June 2016, 1130 am

4

USE OF MOODLE

Please check regularly for updates, information and materials. Where possible the lecturers

will draw your attention to new materials being placed on the sites, but it is considered to be

your responsibility to stay informed and check regularly. If for any good reason you are

unable to use Moodle and require assistance with obtaining the materials for the course

please contact a member of the Administration Team at the Main Law School Office.

Essential reading for each seminar and assessment information will be placed on Moodle.

5

AIMS AND LEARNING OUTCOMES

This module aims to introduce students to the critical examination of issues of great

contemporary significance in international law and human rights. The key supporting

objectives are to offer a balance of:

theory and practice

geographical coverage

general and specific subject matter

movements/ideas and counter-movements/ideas.

6

ASSESSMENT

This module is assessed by a 4000 word research essay. For the purpose of writing

this essay, students are expected to consult a range of primary and secondary

materials.

Students will formulate their own essay question, with assistance from and approval

of the lecturers

The essay must be footnoted and all sources must be properly cited. Failure to

observe this obligation may result in the loss of marks. Students are reminded that

the failure to acknowledge sources relied upon may amount to academic misconduct.

Proven academic misconduct carries potential penalties of greater severity than the

loss of marks.

A case list and bibliography must be submitted with the essay showing all sources

consulted. The remarks above in relation to academic misconduct are also pertinent

to the obligation in this paragraph.

The word limit for the essay is 4000 words. This word limit includes discursive

footnotes, but not footnotes that only contain a citation to source. Students should

avoid discursive footnotes in any event. The case list and bibliography are not

subject to the word limit. Where an essay exceeds the word length by more than 500

words then discretion is retained to reduce the overall mark in proportion to the

amount by which the word limit is exceeded.

Where the ability of a student to comply with the assessment requirements is

compromised by illness or other adverse personal circumstance the matter should be

brought to our attention or to the attention of the administrator Natasha Trivedi

(n.trivedi@bbk.ac.uk) as soon as the student is aware of it.

7

SUMMARY OF SEMINAR TOPICS

Time Weds 9 March Thursday 10

March

Friday 11

March

Monday 14

March

Tuesday 15

March

1430 –

1700

Is international law

really “law”; what

are the sources of

international law

BB

Business and

human rights

CT

Regional

systems for the

protection of

human rights

FC

Peremptory

norms of

international

law and jus

cogens

FC

Current research

on human rights

in East Asia

FC

Break

1800 -

1930

UN systems for the

protection of human

rights; fragmentation

BB

The

environment

and human

rights

CT

Humanitarian

intervention

and the

“responsibility

to protect”,

R2P

BB

Social and

economic

rights

BB

The right of

peoples to self-

determination

BB

8

TEACHING MATERIALS

A wide range of materials is posted on Moodle – please explore

Students should make use of Google Scholar and its links with both the Birkbeck Library

collections and to pre-publication PDFs of the scholarly work you will find on SSRN etc

The range of English and US electronic journals available through Athens at

www.bbk.ac.uk/lib is by far the best of any of the London colleges.

Many OUP books are available electronically through the Library web-site.

Blogs

Students should subscribe – free of charge – to these excellent blogs. You will receive an

email from each every morning

International Law Reporter - http://ilreports.blogspot.co.uk/

Erga Omnes - http://ergaomnesnet.com/

EJIL talk - http://www.ejiltalk.org/

With this blog you can request an RSS feed -

ECHR - http://echrblog.blogspot.co.uk/

It is also worth checking out the regular Insights published by the American Society of

International Law

http://www.asil.org/insights.cfm

And the European Journal of International Law

Basic reading

General

Alston and Goodman International Human Rights (Oxford 2013), which costs from about

£35, is the best general textbook in the area. This is a book that covers all the international

9

human rights areas from a contextual perspective; it also contains substantial extracts from a

wide variety of sources.

Michael Freeman Human Rights (2nd ed, Polity, 2011) is a lucid basic introduction to key

theoretical issues, by a political scientist/lawyer

David P. Forsythe Human Rights in International Relations (Cambridge, 3rd ed, 2012) places

human rights in a political context.

Tony Evans The Politics of Human Rights (Pluto, 2nd ed, 2005)

Jeremy Waldron (ed) Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man

(Methuen, 1987) shows how concepts of human rights have been contested from the French

Revolution onwards – an excellent collection

A book by your tutor

Bill Bowring The Degradation of the International Legal Order? The Rehabilitation of Law

and the Possibility of Politics (Routledge Cavendish, 2008)

International Law

There are a number of textbooks, but we like

James Crawford & Martti Koskenniemi (eds) The Cambridge Companion to International

Law (Cambridge, 2012)

Antonio Cassese International Law (2nd ed, Oxford, 2005), and

Malcolm Evans (ed) International Law (4th ed, 2014) – a great collection of articles by top

scholars

Fleur Johns et al (eds) Events: The Force of International Law (Routledge 2011)

Philosophy of Human Rights and International Law

Martti Koskenniemi The Politics of International Law (Hart, 2011)

James Griffin On Human Rights (Oxford paperback, 2009) – an Aristotelian analysis

Samuel Moyn Last Utopia: Human Rights in History (Harvard, 2010) – a Harvard historian

Costas Douzinas, The End of Human Rights (Hart 2000) is a comprehensive presentation of

the history and theory of human rights.

Conor Gearty and Costas Douzinas The Cambridge Companion to Human Rights Law

(Cambridge, 2012)

International Human Rights Law

10

Brownlie and Goodwin-Gill's Basic Documents on Human Rights (6th ed. Oxford 2010) is the

most comprehensive list of international conventions and treaties.

Daniel Moeckli, Sangeeta Shah & Sandesh Sivakumaran (eds) International Human Rights

Law (Oxford, 2010)

Saladin Meckled-Garcia and Basak Cali eds The Legalisation of Human Rights.

Multidisciplinary perspectives on human rights and human rights law (Routledge 2006)

Anthony Woodiwiss Human Rights (Routledge, 2005)

Anthony Woodiwiss Making Human Rights Work Globally (Glasshouse, 2003)

Carlos Nino, The Ethics of Human Rights (Clarendon, 1993) is the best presentation of the

liberal philosophy of human rights.

Samantha Besson and John Tasioulas (eds) The Philosophy of International Law (Oxford,

2010) – a great collection, including human rights

Anthony Carty Philosophy of International Law (Edinburgh, 2007)

11

SEMINAR TOPICS AND READING GUIDES

. 1 . Is there such a thing as international

law: if so, what is it?

This is a bit technical, but for a good reason. A sound grasp of the sources of international

law – treaties, custom, general principles, scholarly writing - is an essential basis for the

proper understanding of human rights law. Students should also be aware of the growing

importance of ―soft law‖ – there are now a great many documents of various kinds many of

which have great significance for human rights.

Questions

What is law?

Is international law really law?

On the basis that everyone has read D‘Amato, all students will take part in turn in identifying

the key characteristics of ―law‖, and then, reflecting on John Austin‘s dismissal of the

possible existence of international law, consider D‘Amto‘s and any other arguments to the

contrary.

Students will then be introduced to the key question: what are the sources of International

Law? On the basis of a full handout which will be distributed in advance, students will

unravel article 38 of the Statute of the UN‘s International Court of Justice, and will be

introduced gently to the Vienna Convention on the Law of Treaties 1969; and to the

mysteries of Customary International Law – state practice and opinion juris.

Reading

Antony d‘Amato ―Is International Law Really Law‖ Northwestern University Law Review

(1985) Vol.79 p.1293-1314 – This is in your Reading Pack

David Kennedy ―The Sources of International Law‖ American University Journal of

International Law and Policy (1987) Vol.2 p.1-96 - This is in your Reading Pack

Anthea Roberts ―Traditional and Modern Approaches to Customary International Law: A

Reconciliation‖ (2001) v.95 p.757-791

Michael Doyle ―Dialectics of a global constitution: The struggle over the UN Charter‖

European Journal of International Relations (2012) 18(4) 601–624

12

Further Reading

Hugh Thirlway "The Sources of International Law" in Malcolm D. Evans (ed) International

Law (34th ed 2014) pp.91-117

Alan Boyle ―Soft Law in International Law-Making‖ in Malcolm D. Evans (ed) International

Law (4th ed 2014) pp.118-136

Malgosia Fitzmaurice "The Practical Working of the Law of Treaties" in Malcolm D. Evans

(ed) International Law (4th ed, 2014) pp.166-200

. 2 . Un systems for the protection of

human rights: the fragmentation of

international law

Since World War II and the creation of the UN, there has been an explosion in the number of

instruments (treaties etc), mechanisms (councils, courts, tribunals etc) covering discrete

areas of international law. Bowring‘s article introduces you to the tension between human

rights law, in which complaints are made against states, and humanitarian law, the laws of

armed conflict, in which states enter into treaty obligations, but individuals face criminal

sanctions for violations. In the Introduction to IELJD you will encounter international

economic law. There is a presumption (lex specialis) that where there is a specialised body

of law, for example the Geneva Conventions 1949 and Protocols 1977 on armed conflict,

that law will be applied. But what happens if the European Court of Human Rights has to

consider a case concerning a situation of armed conflict, for example the Chechen cases?

Questions:

Is fragmentation to be deplored, or is a sign of international creativity in

dealing with new situations?

Should there be one international judicial or quasi-judicial mechanism?

Reading

You must read Koskenniemi and Bowring, in your Reading Pack

Martti Koskenniemi Fragmentation of international law: difficulties arising from the

diversification and expansion of international law Report of the Study Group of the

International Law Commission A/CN.4/L.682, 13 April 2006

Mario Prost and Paul Kingsley Clark ―Unity, Diversity and the Fragmentation of International

Law: How Much Does the Multiplication of International Organizations Really Matter?‖ v.5

n.2 (2006) Chinese Journal of International Law p341-370 - This is in your Reading Pack

13

Martti Koskenniemi ―The Fate of Public International Law: Between Technique and Politics‖

v.70 n.1 (2007) Modern Law Review pp.1-30

Bill Bowring ―Fragmentation, Lex Specialis and the Tensions in the Jurisprudence of the

European Court of Human Rights‖ v.14 n.3 (2009) Journal of Conflict and Security Law

pp.485-498

. 3 . Business and human rights

Please prepare to discuss the following questions:

What if anything is meant by “globalisation”?

What are Multinational Corporations?

What are the UN Guiding Principles on Business and Human Rights?

What is the basis for business enterprises responsibilities? Are they derived

from international law, domestic law, voluntary commitments?

What is the content and enforceability of a corporations human rights ?

To what extent can international law hold MNCs accountable for human rights

abuses?

Are the UNGPs on business and human rights enformceable?

International human rights standards have traditionally been the responsibility of

governments, aimed at regulating relations between the State and individuals and groups.

Over the past decade the issue of business impact on the enjoyment of human rights has

been placed on the UN‘s agenda. There is an emerging consensus as a result the UN‘

Protect, Respect and Remedy‘ Framework on human rights and business which was

elaborated by the Special Representative of the UN Secretary General on the issue of

human rights and transnational corporations. On 16 June 2011 , the UN Human Rights

Council endorsed Guiding Principles on Business and Human Right providing, for the first

time a global standard for preventing and addressing the risk of adverse impacts on human

rights linked to business activity.

The rise of large Multinational Corporations (MNCs) since the Second World War has raised

a number of concerns in terms of the detrimental impact on human rights protection. There is

increasing concerns about the responsibility of MNCs in relation to human rights abuses.

They are not burdened with the responsibility of preserving civil and political rights since it is

the state and not the MNC that is in the position to secure such rights to people. However,

they have the potential to directly affect the social, cultural and economic rights of the people

in whose countries they operate. MNCs are non-state actors and have no legal personality in

international law. They are however bound to the national laws of host countries.

We will explore the nature of MNCs and the response of international law to addressing

human rights abuses arising from their practices.

14

Reading:

Robert Fine ―Civil Society, Enlightenment and Critique‖ in Robert Fine and Shirin Rai (eds)

Civil Society: Democratic Perspectives (London, Frank Cass, 1997), pp.7-28

William Scheuerman ―Economic Globalisation and the Rule of Law‖ (1999) 6 Constellations

3-25; Robert McCorquodale and Richard Fairbrother ―Globalization and Human Rights‖

(1999) Vol 21 No 3 Human Rights Quarterly pp.735-766

David C. Korten, When Corporations Rule the World (West Hartford: Kumurian Press,

1995).

Thomas Donaldson, ‗Moral Minimums for Multinationals‘ in Joel H. Rosenthal (ed.), Ethics

and International Affairs: A Reader, 2nd edition, (Washington D.C.: Georgetown University

Press, 1999)

United Nations : working group on the issue of human rights and transnational corporations

and other business enterprises :

http://www.ohchr.org/EN/Issues/Business/Pages/WGHRandtransnationalcorporationsandoth

erbusiness.aspx

Multilateral corporations

Book : Multinationals and Corporate Social Responsibility: limitations and Opportunities in

International Law : Jennifer Zerk; Cambridge University Press

http://www.amnesty.org/en/library/info/POL30/001/2014/en

E. Mujih, ―Co-regulation‖ of multinational companies operating in developing

countries: partnering against corporate social responsibility?‘, 16(2) Africa Journal of

International and Comparative Law 249-261 (2008).

Environmental Law Review/2014, Volume 16/Issue 3, September/Articles/Enhancing

the Accountability of Transnational Corporations: The Case for 'Decoupling'

Environmental Issues - ELR 16 3 (168)-Ciprian N Radavoi

Leiden Journal of International Law/2011 - Volume 24/Issue 4, 1

December/Articles/Moving towards Complicity as a Criterion of Attribution of Private

Conducts: Imputation to States of Corporate Abuses in the US Case Law - Leiden

Journal of International Law, 24 (2011), pp. 989-1007 – Daniele Amoroso

Corporate accountability in International Environmental Law – Elisa Morgera- 2009

International Review of the Red Cross/Volume 94/Issue 887, 1 September

2012/Articles/

The importance of stakeholder engagement in the corporate responsibility to respect

human rights - International Review of the Red Cross, Volume 94 Number 887

September 2012, pp. 1047-1068 Dr Barbara Dubach

D. Bodansky, ‗The Legitimacy of International Governance: A Coming Challenge for

International Environmental Law?‘, 93(3) American Journal of International Law 596

(1999). http://www.globalissues.org/article/51/corporations-and-human-rights

15

Moving towards Complicity as a Criterion of Attribution of Private Conducts:

Imputation to States of Corporate Abuses in the US Case Law- Daniel

amoroso,MIGUEL JUAN TABOADA CALATAYUD, JESÚS,CAMPO CANDELAS &

PATRICIA PÉREZ FERNÁNDEZ(University of Castilla-La Mancha, Ciudad Real,

Spain)

The Accountability0f Multinational Corporationsfor Human Rights‘ Violations

https://www1.umn.edu/humanrts/links/aihrprinc.html ZaöRV 66 (2006), 625-661

Human Rights and Multinational Enterprises: How Can Multinational Enterprises Be

Held Responsible for Human Rights Violations Committed Abroad? Marion

Weschka* This is in our reading pack

http://www.oecd.org/corporate/mne/oecdguidelinesformultinationalenterprises.htm

Corporate Accountability and Liability for International Human Rights Abuses; Recent

Changes and Recurring Challenges, Northwestern Journal of International Human

Rights vol 6/ issue 2 Emeka Duruigbo

Corporate Liability for violations of international human rights: law, international

custom or politics ? Antoine Martin Minnesotal Journal of INT;: on line [vol21] 2012

Business and Human Rights Resource Centre

http://www.business-humanrights.org/Home

The website links to a wide range of materials published by: NGOs; companies &

business organisations; UN, ILO & other intergovernmental organisations;

governments & courts; policy experts & academics; social investment analysts;

journalists; etc. The United Nations, ILO, business organisations, NGOs and

universities have, at their request, linked their websites to the Resource Centre site.

Reading:

You must read

Report of the Working Group on the issue of human rights and transnational corporations

and other business enterprises, submitted pursuant to Human Rights Council resolution

17/4, 10 August 2012 This is in your Reading Pack

Kenneth Rodman ――Think Globally, Punish Locally‖: Nonstate Actors, Multinational

Corporations, and Human Rights Sanctions‖ (1998) 12 Ethics and International Affairs 19-

41;

Ron Pagnucco ―Globalising Human Rights: The Work of Transnational Human Rights NGOs

in the 1990s‖ (1998) 20 Human Rights Quarterly 379-412

Philip Alston and Ryan Goodman International Human Rights (Oxford, 2013) MNCs

pp.1463-1496

16

Janet Dine, Andrew Fagan (eds) Human Rights and Capitalism: A Multidisciplinary

Perspective on Globalisation (Edward Elgar, 2006)

Peter Muchlinski Multinational Enterprises and the Law (Oxford, July 2007, 2nd Revised

Edition),

Janet Dine Companies, International Trade and Human Rights (Cambridge 2005)

Rory Sullivan ―NGO Influence on the Human Rights Performance of Companies‖ (2006) v.24

n.3 Netherlands Quarterly of Human Rights pp.405-432 – the author is Director of Investor

Responsibility at HBOS plc!

Nicola Jägers ―Mainstreaming Human Rights in International economic Organisations:

Improving Judicial access for NGOs to the WTO‖ (2006) v.24 n.2 Netherlands Quarterly of

Human Rights pp. 229-270

Denis Arnold and Laura Hartman ―Worker Rights and Low Wage Industrialization: How to

Avoid Sweatshops‖ (2006) v.28 n.3 Human Rights Quarterly

Eric Neumayer ―Is Respect for Human Rights Rewarded? An Analysis of Total Bilateral and

Multilateral Aid Flows‖ (2003) v.25, n.2 Human Rights Quarterly 510-527

Mahmood Monshipouri, Claude Welch, Evan Kennedy ―Multinational Corporations and the

Ethics of Global responsibility: Problems and Possibilities‖ (2003) v.25, n.4 Human Rights

Quarterly 965-989

Peter Muchlinski "Human rights and multinationals: is there a problem?" (2001) 77

International Affairs pp.31-47

Jack Donnelly "Human Rights, Democracy and Development" (1999) Vol.21 Human Rights

Quarterly p.608

Kenneth Rodman "Think Globally, Punish Locally: Non-State Actors, Multinational

Corporations and Human Rights" (1998) Ethics and International Affairs, pp.19-42

Robert McCorquodale, Richard Fairbrother "Globalisation and Human Rights" (1999) Vol 21

Human Rights Quarterly p.735

Stephen Tully "The 2000 Review of the OECD Guidelines for Multinational Enterprises"

(2001) Vol 50, Part 2 International and Comparative Law Quarterly pp. 394-403

Mahmood Monshipouri and Claude Welch "The Search for International Human Rights and

Justice: Coming to terms with the New Global Realities" (2001) Vol.23, No.2 Human Rights

Quarterly pp.402-430

Ernst Petersmann, ‗Time for a United Nations ―Global Compact‖ for Integrating Human

Rights into the Law of Worldwide Organizations: Lessons from European Integration‘, 13

European Journal of International Law (EJIL) (2002), 621-650;

Philip Alston, ‗Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply

to Petersmann‘, 13 EJIL (2002), 815-844;

17

Petersmann, ‗Taking Human Dignity, Poverty and Empowerment of Individuals More

Seriously: Rejoinder to Alston‘, 13 EJIL (2002), 845-851.

Robert McCorquodale, ‗The Individual and the International Legal System‘ in Malcolm D.

Evans (ed.), International Law (Oxford: Oxford University Press, 2003), p. 300 and pp. 306-

307.

Business and Human rights reading

Michael K Addo ‗Guiding Principles on Business and Human Rights‘ Human Rights Law

Review (2014) 14(1): 133-147 - This is in your Reading Pack

Christian Vidal-Leon Responsibility, Human Rights, and the World Trade Organization - J Int

Economic Law (2013) 16 (4): 893 - This is in your Reading Pack

Additional Reading on Human Rights and Business

Book Just Business – John Ruggie ; Norton 2013

Book‘ The business of human rights ; an evolving Agenda for corporate responsibility‘

Aurora BVoiculescu and Helen Yanacopulos; Zed Books 2011

Journal of International Banking & Financial Law/2006 Volume 21/Issue 2,

February/Articles/Banks,

Business And Human Rights - (2006) 2 JIBFL 46; Paul Watchman

International Review of the Red Cross, Volume 94 Number 887 September 2012, pp.

961–979 : The UN Guiding Principles on Business and Human Rights and conflict-

affected areas: state obligations and business responsibilities: Rachel Davis

http://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusiness

HR.pdf

http://www.ibanet.org/Article/Detail.aspx?ArticleUid=9c9f1d65-0ca6-47d7-969a-

44a647573b44

http://www.globalarbitrationreview.com/cdn/files/gar/articles/31419_report.pdf

http://a4id.org/sites/default/files/user/A4ID%20Business%20and%20Human%20Righ

ts%20Guide%202013%20%28web%29.pdf

https://ec.europa.eu/anti-trafficking/publications/european-commission-sector-

guides-implementing-un-guiding-principles-business-and-hum-0_en

http://www.tilj.org/content/journal/48/num1/Blitt33.pdf

http://library.law.yale.edu/news/resources-corporate-liability-and-human-rights

18

.4. The environment and human rights

The aim of this seminar is provide a better understanding on how human rights and

the environment are interlinked. In 2013 the UN expert on human rights and

environment highlighted the urgent need to clarify the human rights obligations linked

to a safe, clean, healthy and sustainable environment. He stated that ‗human rights

and the environment are not only interrelated, they are also interdependent‘

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13089&La

ngID=E

Environment protection and human rights have traditionally been viewed as separate

and distinct areas of public policy both by governmental agencies and non-

governmental organisations. Only recently has there been a greater appreciation of

the link between environmental and public health issues related to basic human

rights

Some critical questions are:

Is the environment part of human rights law?

Are environmental rights the same as human rights? ( Boyle article)

Is the right to a safe, healthy and ecologically balanced environment a human right in

itself?

Do human rights treaties guarantee a right to a decent or satisfactory environment ?

Is a high level of environmental protection a pre-requisite for the enjoyment of human

rights

Reading material

F. Francioni, ‗International human rights in an environmental horizon‘, E.J.I.L. 2010,

21(1), 41-55. - This is in your Reading Pack

U. Beyerlin, P. Stoll and R. Wolfrum, ‗Conclusions drawn from the Conference on

Ensuring Compliance with MEAs‘ in U. Beyerlin, P. Stoll and R. Wolfrum, Ensuring

Compliance with Multilateral Environmental Agreements (Martinus Nijhoff Publishers,

2006).

Gunningham, ‗Environment law, regulation and governance: shifting architectures‘

21(2) J. Env. L. 179-212 (2009).

Environmental Law Review/2014, Volume 16/Issue 2, June/Articles/The Intersection

between Constitution, Human Rights and the Environment: The French Charter for

the environment and the new ex post constitutional control in France - ELR 16 2

(107) David Marrani

European Journal of International Law/2012, Volume 23/Issue 3,

August/Articles/Human Rights and the Environment: Where Next? - Eur J Int Law

19

(2012) 23 (3): 613 A Boyle

Environmental Law Review/2005, Volume 7/Issue 1, March/Articles/Whither

environmental human rights? -ELR 7 1 (12)- 2005: Mark Stallworthy

Environmental Law and Management/2008 - Volume 20/Issue 1, 1

February/Articles/Linking environmental protection, health, and human rights in the

European Union: an argument in favour of environmental justice

policy - (2008) 20(1) ELM: 8 Environmental- ANTYPas, Cahn, Filcak , Steger

Journal of Environmental Law/2008/November/Articles/Public Interest Litigation

Concerning Environmental Matters before Human Rights Courts: A Promising Future

Concept? - J Environmental Law (2008) 20 (3):

417: Christian Schall

http://www.unep.org/environmentalgovernance/Events/HumanRightsandEnvironment

/tabid/2046/language/en-US/Default.aspx

http://www.unep.org/environmentalgovernance/Events/HumanRightsandEnvironment

/tabid/2046/language/en-US/Default.aspx

http://www.unep.org/environmentalgovernance/Portals/8/documents/background%20

note%20adverseffects%20dumping%20toxic%20and%20dangerous%20products.pdf

http://www.aaas.org/sites/default/files/migrate/uploads/EnvironmentalHealth.pd

Human Rightts Defenders and Business : Searching for Common Ground:

IBHR, Occassional Paper Series , Paper number 4 f

. 5 . Regional systems for the protection

of human rights: Africa, the Americas and

Europe

Forsythe asks (p.149):―What explains the quality of regional protection of human rights in

Europe, compared with the Western Hemisphere and Africa? Is it likely that the latter two

regions will evolve so as to duplicate the European record?‖

Pre class reading – this in your reading pack

David Forsythe ―Regional application of human rights norms‖ (Chapter 5, pp.121-151) in

Human Rights in International Relations (2nd ed, Cambridge UP, 2006)

‗B Obinna Okere ‗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‘ (1984) 6 Human Rights Quarterly 141

Additional reading

Inter-American System

20

Tom Farer ―The Rise of the Inter-American Human Rights Regime: No Longer a Unicorn,

Not yet an Ox‖ (1997) v.19 n.3 Human Rights Quarterly pp.510-546

David Harris and Stephen Livingstone The Inter-American System of Human Rights

Clarendon Press 1998

Israel de Jesus Butler ―The Rights of the Child in the Case Law of the Inter-American

Court of Human Rights: Recent Cases‖ (2005) v.5 n.1 Human Rights Law Review

pp.151-168

Pablo Saavedra-Allesandri (registrar of the IACtHR) ―The Inter-American Court of Human

Rights. Present and Future Challenges‖ (2006) v.24 n.3 Netherlands Quarterly of Human

Rights pp.375-378

Mónica Feria Tinta ―Justiciability of Economic, Social, and Cultural Rights in the Inter-

American System of Protection of Human Rights: Beyond Traditional Paradigms and

Notions‖ Human Rights Quarterly 29 (2007) 431–459

African System

Kofi Oteng Kufuor The African Human Rights System: Origin and Evolution (Palgrave

Macmillan, 2010)

Issa Shivji The Concept of Human Rights in Africa Dakar, Codesria, 1989

Issa Shivji (ed) State and Constitutionalism: An African Debate on Democracy SAPES

Trust, Harare, 1991

Abdullahi An-Na‘im (ed) Human Rights Under African Constitutions: Realizing the

Promise for Ourselves U of Pennsylvania Press, 2003

Paul Tiyambe Zeleza and Philip J McConnaughty (eds) Human Rights, the Rule of Law,

and Development in Africa U of Pennsylvania Press, 2004

Malcolm Evans and Rachel Murray (eds) The African Charter on Human and Peoples’

Rights: The System in Practice, 1986-2000 Cambridge UP 2002

Rachel Murray ―Developments in the African Human Rights System 2003-4‖ (2006) v.6

n.1 Human Rights Law Review pp. 160-175

Mashood Baderin ―Recent Developments in the African Regional Human Rights System‖

(2005) v.5 n.1 Human Rights Law Review pp.117-150

Andre Mbata B Mangu ―The Changing Human Rights Landscape in Africa: Organisation

of African Unity, African Union, New Partnership for Africa‘s Development and the African

Court‖ (2005) v.23 n.3 Netherlands Quarterly of Human Rights pp.379-408

Jo M. Pasqualucci ―The Evolution of International Indigenous Rights in the Inter-American

Human Rights System‖ (2006) v.6 n.2 Human Rights Law Review pp.281-322

Rachel Murray & Frans Viljoen ―Towards Non-Discrimination on the Basis of Sexual

Orientation: The Normative Basis and Procedural Possibilities before the African

Commission on Human and Peoples‘ Rights and the African Union‖ Human Rights

Quarterly 29 (2007) 86–111

21

Regional human rights mechanisms – comparative timeline

Date Europe Americas Africa

1948 Organisation of American

States -

American Declaration of the

Rights and Duties of Man

1949 Council of Europe - 10

states

1950 European Convention

on Human Rights

1959 Inter-American Commission

on Human Rights

1961 European Social

Charter

1963 Charter of the

Organisation of African

Unity adopted by

Conference of Heads of

States and Governments

1966 UK accepts compulsory

jurisdiction, right of

individual petition

1969 American Convention on

Human Rights

1973 East African Asians v

UK

1978 Republic of Ireland v UK

1980 Commission Report on

Disappearances in

Argentina

1981 African Charter on Human

and Peoples Rights

22

1987 European Convention

for the Prevention of

Torture

African Commission on

Human and Peoples

Rights (ACHPR)

1988 Additional Protocol to the

ACHR on Economic, Social

and Cultural Rights - 11

states parties by 2000

Velasquez Rodriguez v

Honduras

1994 Framework Convention

for the Protection of

National Minorities

African Commission

begins to publicise

individual cases. All

African states are

members

1996 Constitutional Rights

Project v Nigeria

1998 New Court of Human

Rights created

Protocol to the African

Charter, to create the

African Court of Human

and Peoples Rights

1999 Revised Social Charter

into force (29 states) –

collective complaints to

the European Social

Committee (14 states)

2000 35 members of OAS, 25 of

which ratified the

Convention

OAU becomes African

Union, with Pan-African

Parliament, Court of

Justice

2004 Protocol establishing the

ACtHPR enters into force

on 25 January 2004

2006 January 22, 2006, African

Union elects the first

eleven Judges of the

ACtHPR

23

2007 47 members, with

accession of

Montenegro on 11 May

2007

August 2007 – the

ACtHPR moves to Arusha,

Tanzania

http://www.african-

court.org/en/

2008 European Roma Rights

Centre (ERRC) v.

Bulgaria under Revised

Social Charter

Case of the Rochela

Massacre v. Colombia. 28

January 2008

2009 Russia ratifies Revised

Social Charter 16

October 2009; UK still

refuses

Case of the “Las Dos Erres”

Massacre v. Guatemala, 24

November 2009

16 October 2009 –

ACtHPR and ACHPR

meet to harmonise

procedure

First case heard at

ACtHPR: Yogogombaye v

Senegal – inadmissible –

15 December 2009

2010 Protocol 14 on reform of

procedure came into

force on 1 June, see

Factsheet,

http://www.echr.coe.int/NR

/rdonlyres/57211BCC-

C88A-43C6-B540-

AF0642E81D2C/0/CPProt

ocole14EN.pdf

2011 10 February 2011,

House of Commons

votes to retain the

blanket ban on votes for

prisoners, in defiance of

the judgment in Hirst v

United Kingdom No. 2

(Application No.

74025/01, Grand

Chamber judgment of

06/10/2005)

September 2011 The Court

ruled that Venezuela must

allow Leopoldo López, an

opposition leader, to run for

public office. Chávez

reported as saying that the

Court is part of a system

that ―protects the corrupt

and obeys the mandate of

the imperial power and the

bourgeoisie. What value

can that Court have? For

Decisions 22nd Ordinary

Session 12-23 September

2011

- Efoua Mbozo'o Samuel Vs .

Pan African Parliament

Application No. 010/2011

- Tanganyika Law Society

and the Legal and Human

Rights Centre v Tanzania

and Reverend Christopher

Mtikila v Tanzania.

24

me, it means nothing… . - Ekollo M. Alexandre c

Cameroun et Nigéria.

Decisions 21st Ordinary

Session 6-17 June 2011

- Youssef Ababou v

Morocco.

- ACHPR v Libya

- Association Juristes

D‘Afrique c Cote D‘ivoire

- Daniel Amare and Mulugeta

Amare v Mozambique &

Mozambique Airlines .

- Soufiane Ababou v Algeria

The Court held its 23rd

Ordinary Session,in Accra,

Ghana, from 5 - 16

December 2011. This was

the first time the Court a

session outside its seat,

since its relocation to

Arusha, Tanzania in

August 2007.

2012 Commission v Libya – see

documents on Moodle

. 6 . Humanitarian Intervention and the

Responsibility to Protect (R2P)

This is a highly controversial topic concerning international law and human rights.

See Spencer Zifcak ―The Responsibility to Protect‖, Chapter 17, pp.509-536 in Malcolm

Evans International Law (4th ed, 2014)

R2P has succeeded ―humanitarian intervention‖

This was a ―highly circumscribed recognition of a right of HI‖

1) An existing or potential humanitarian disaster must be identified

25

2) The catastrophe and its wider effects must be such as to constitute, in the opinion of

the UNSC, a threat to international peace and security

3) The UNSC must explicitly authorise any subsequent military intervention

4) The authorisation and conduct of the intervention must be an act of last resort

Kofi Annan‘s address to the 54th session of the UNGA, 20 September 1999

The Canadian Government set up the International Commission on Intervention and State

Sovereignty (ICISS) – final report, The Responsibility to Protect, 2001

Three different forms of responsibility:

1) Initially, through prevention – responsibility to prevent – international aid, human

rights

2) Responsibility to react – use of non-forcible measures

3) Responsibility to rebuild

The Secretary-General‘s High-Level Panel on Threats, Challenges and Change (HLP): A

More Secure World: Our Shared Responsibility (UN Document A/59/565, 2004)

2005 World Summit Outcome, UN Doc A/60/L.1

1) Crimes in relation to which R2P may arise are limited to genocide, war crimes, ethnic

cleansing, crimes against humanity – US proposal ―or other major atrocities‖ not

adopted

2) Int community must use all diplomatic etc peaceful means in accordance with the

Charter

3) In community is ―prepared to take collective action‖ – US proposal ―we recognise our

shared responsibility to take collective action‖ not adopted

4) Collective action must be authorised by UNSC under Chapter VII

5) No criteria of legitimacy – ‗case by case basis‘

6) Collective action only considered where national authorities ―manifestly fail to protect

their populations‖

7) Constraint on veto was rejected

UNSC Resolution 1674 (28 April 2006) – reaffirmed the World Summit Outcome

UNSC Resolution 1706 (25 August 2006) – situation in Darfur

Report of the Secretary-General Implementing the Responsibility to Protect UN Doc.

A/63/677 – Professor Edward Luck

Three-pillar approach

1) State in which crisis occurs must take responsibility for timely and appropriate

preventative measures

2) Calibrated response by the international community

3) Soft coercion including fact-finding, peacekeepers, arms embargoes etc

26

According to the Report, ―humanitarian intervention‖ posed a false choice between standing

by, or use of force. The R2P recasts sovereignty as responsibility, followed by detail as to

rights and obligations. July 2009 – General Assembly debate

Is there state practice?

Is there opinio juris?

Reading

Eric A. Heinze ―Humanitarian Intervention, the Responsibility to Protect, and Confused

Legitimacy‖ v.11 (2011) Human Rights and Human Welfare pp.17-32

Review of Humanitarian Intervention and the Responsibility to Protect: Who Should

Intervene? By James Pattison. Oxford: Oxford University Press, 2010. 284 pp. and

Humanitarian Intervention: An Introduction. By Aidan Hehir. New York: Palgrave Macmillan,

2010. 303pp. This is in your Reading Pack

Chesterman, Simon, "Leading from Behind': The Responsibility to Protect, the Obama

Doctrine, and Humanitarian Intervention After Libya" (2011). New York University Public Law

and Legal Theory Working Papers. Paper 282.

http://lsr.nellco.org/nyu_plltwp/282

Dino Kritsiots ‗Arguments of Mass Confusion‘ European Journal of International Law Vol. 15,

No.4 (2004) 233-278

Thomas G Weiss and others The Responsibility to Protect: challenges and opportunities in

the light of the Libya intervention (2011) e-International Relations at

http://www.e-ir.info/wp-content/uploads/R2P.pdf

R2P now has its own journal, Global Responsibility to Protect.

. 7. Peremptory norms of international

law and jus cogens

You will be introduced to some more legal latin: jus cogens and erga omnes. Peremptory

norms exist to protect the values and interests that are fundamentally important to the

international community as a whole. Since peremptory norms safeguard the community

interest as opposed to individual state interests, they possess absolute validity; this is in

contrast to the relative validity of ordinary or non-peremptory norms. Their rationale consists

in invalidating or prevailing over incompatible acts and transactions in order to ensure the

27

paramount superiority of fundamental community values and interests, and to avoid

fragmentation of legal relations safeguarding the community interest.

This class will first of all consider the Vienna Convention on the Law of Treaties 1969 which

consolidates the general law governing the workings of international treaties. This should

give an idea of the general framework of how treaties operate and the parameters of

international law. The Vienna Convention makes two references to jus cogens.

Article 53

Treaties conflicting with a peremptory norm of general international law (“jus cogens”)

A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of

general international law. For the purposes of the present Convention, a peremptory

norm of general international law is a norm accepted and recognized by the

international community of States as a whole as a norm from which no derogation is

permitted and which can be modified only by a subsequent norm of general

international law having the same character.

Article 64

Emergence of a new peremptory norm of general international law (“jus cogens”)

If a new peremptory norm of general international law emerges, any existing treaty

which is in conflict with that norm becomes void and terminates.

Pre-Class reading – this is in your pack

Karen Parker and Lyn Beth Neylon ―Jus Cogens: Compelling the Law of Human Rights‖ 12

Hastings International and Comparative Law Review pp.411-464

William Conklin ‗The Peremptory Norms of the International Community‘ (2012) 23 European

Journal of International Law 837.

Further Reading

Stefan Talmon ―Jus Cogens after Germany v. Italy: Substantive and Procedural Rules

Distinguished‖ Bonn Research Papers on Public International Law Paper No 4/2012, 16

June 2012, on SSRN http://ssrn.com/abstract=2085271

Hilary Charlesworth and Christine Chinkin ―The gender of Jus Cogens‖ v.15 n.1 (1993)

Human Rights Quarterly pp.63-76

Alexander Orakhelashvili ―The Impact of Peremptory Norms on the Interpretation and

Application of United Nations Security Council Resolutions‖ v.16 n.1 (2005) European

Journal of International Law pp.59–88

Alexander Orakhelashvili Peremptory Norms in International Law (Oxford, 2006) – 622

pages!

28

Alexander Orakhelashvili ―Peremptory Norms as an Aspect of Constitutionalisation in the

International Legal System‖ in M. Frishman and S. Muller (eds.), The Dynamics of

Constitutionalism in the Age of Globalisation (Springer, 2010), 153-180

Anthony D'Amato ―It‘s a Bird, it‘s a Plane, it‘s Jus Cogens" (2010). Faculty Working Papers.

Paper 61.

http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/61

and Connecticut Journal of International Law, Vol.6, Fall 1990 No. 1, pp.1-6

Barcelona Traction, Light and Power Company, Limited, ICJ Reports 1970, 3

. 8 . Social and Economic Rights

Questions:

Are social and economic rights human rights? Why might they not be

included?

Are social and economic rights justiciable? Does it matter if they are not?

Why are the common law countries, especially UK and USA so allergic to

these rights?

http://justfair.co.uk/hub/single/roundtable_report_esc_rights_in_the_ukcombating_social_inju

stice_in_an_age/

On the afternoon of 21 January 2011, thirty seven representatives of human rights and civil

society organizations met at Doughty Street Chambers in London to take stock of the

situation of economic, social and cultural rights (ESCR) in the UK, in light especially of the

applicability of the International Covenant on Economic, Social and Cultural Rights

(ICESCR) and the revised European Social Charter.

Particular attention was paid to contemporary issues affecting ESCR in the UK, including:

• the impact of ‗austerity‘ and public service cuts on ESCR and the real risk that the

Comprehensive Spending Review (CSR) violates the UK‘s obligations under the ICESCR;

• a call for caution with regards to buying into the language of austerity; there is a need for

value driven policy not deficit driven policy;

• the work of the Equality and Human Rights Commission (EHRC) as pertains to ESCR,

including its Triennial Review, assessment of the extent to which HM Treasury CSR has met

the UK‘s Public Sector Equality Duties and its review of socio-economic rights in the UK;

• the duty on the UK to submit its sixth periodic report to the UN Committee on Economic,

Social and Cultural Rights (UNComESCR) by June 2014.

Participants outlined a series of „next step‟ proposals, which included the following:

29

• identify what ESCR work is being done across the country and build a comprehensive

‗ESCR map‘ of the UK;

• inform and train local government officials to embed the HRA and ESCR in policy and

practice;

• build the capacity to use ESCR among communities affected by poverty, the public, and

third sector organisations;

• promote and conduct participatory budgetary analysis to hold responsible authorities to

account;

• elaborate effective public information and campaigning about and in favour of the full

implementation of ESCR in the UK;

• inform the main actors who oppose austerity using the values, concepts and standards of

human rights;

• collectively develop a cohesive UK ESCR communication strategy;

• establish a coalition for the ICESCR which could coordinate ICESCR shadow reporting,

call for UK compliance with the ICESCR 2009 Concluding Observations, and work for the

adoption of a UK Action Plan;

• an effective ESCR coalition would need a strong mandate, clear policy goals, specific

outcomes, effective lobbying and a central co-ordinator.

The roundtable was organised jointly by the British Institute for Human Rights, the Human

Rights Centre at University of Essex, the Equality and Human Rights Commission for

England and Wales and Just Fair.

Essential Reading

Sandra Fredman ―Socio-economic Rights and Positive Duties‖, Chapter 8 in Human Rights

Transformed: Positive Rights and Positive Duties (Oxford, 2008) 204-240. This is in your

Reading Pack

Advanced Reading

Baderin, Mashood, and Robert McCorquodale (eds) (2007) Economic, Social and Cultural

Rights in Action (Oxford)

Bilchitz, David (2007) Poverty and Fundamental Rights: the Justification and Enforcement of

Socio-Economic Rights (Oxford)

Bowring, Bill (2002) ―Forbidden Relations? The UK‘s Discourse of Human Rights and the

Struggle for Social Justice‖ 2002 (1) Law, Social Justice & Global Development Journal

(LGD). <http://elj.warwick.ac.uk/global/02-1/bowring.html>

de Búrca, Gráinne and others (eds) (2005) Social Rights in Europe (Oxford)

30

Craven, Matthew (1995) The International Covenant on Economic, Social and Cultural

Rights: A Perspective on its Development (Oxford, Clarendon)

Cullen, Holly (2009) ―The collective complaints system of the European Social Charter:

interpretative methods of the European Committee of Social Rights‖ Human Rights Law

Review (2009) 9(1): 61-93

Drzewicki, Krzystof and others (eds) (1994) Social Rights as Human Rights: A European

Challenge (Institute for Human Rights: Abo Akademi University)

Eide, Asbjørn and others (2001) Economic, Social and Cultural Rights: A Textbook (2nd ed,

Martinus Nijhoff)

Fabre, Cécile (2000) Social Rights Under the Constitution: Government and the Decent Life

(Oxford)

Merali, Isfahan and Valerie Oosterveld (2001) Giving Meaning to Economic, Social and

Cultural Rights (University of Pennsylvania Press)

. 9 . Relativism and its application to

international human rights law

Relativism is the idea that the values that underpin human rights are relative to particular

cultures and societies. International human rights law originated in the western tradition of

human rights and this has led to some claims that its application is a reflection of a particular

cultural tradition not a reflection of truly universal practices. This is of particular importance in

understanding some contemporary issues faced in international human rights law.

Firstly this session will explore the idea of relativism as a concept and how it relates to

international human rights law. This will involve a little bit of theory but this is important to

understand how the law works in practice and the nature of the disputes about universality.

Some of the more theoretical questions will be discussed in the subsequent theory module

on the LLM.

Secondly we will examine the issue of reservations to the Convention on the Elimination of

All forms of Discrimination Against Women and see how relativism helps us understand

individual reservations. Finally we will examine the Association of South East Asian Nations

(ASEAN) Human Rights Declaration as an illustration of how relativism can be

institutionalised.1

Pre-Class Reading – this will be available for download on moodle

1 Message from FC - The material in this class covers part of a wider research project which I am looking

to turn into a book and there will be some of this material on this available on line. I would welcome any student

comments.

31

Jack Donnelly ‗The Relative Universality of Human Rights‘ (2007) 26(2) Human Rights

Quarterly 281-306

Jennifer Riddle ‗Making CEDAW Universal: A Critique of CEDAW‘s reservation regime under

Article 28 and the effectiveness of the reporting process‘ (2002) 34 The George Washington

International Law Review 605

James Munro ‗The relationship between the origins and regime design of the ASEAN

Intergovernmental Commission on Human Rights (AICHR)‘ (2011) 15 International Journal

of Human Rights 1185.

Further Reading

Fernando Teson International Human Rights and Cultural Relativism (1985) 25 Virginia Journal of International Law Christos Galanos, ‗Universal human rights in the face of cultural relativism and moral objectivity: preaching or teaching?‘ (2010) 16 UCL Jurisprudence Review 29 Yuval Ginbar ‗Human Rights In ASEAN setting sail of Treading Water‘ (2010) 10 HRLR 504

Linda Keller ‗The Impact of State Parties‘ Reservations to the Convention on The Elimination of Discrimination Against Women‘ (2014) Michigan State Law Review 309

. 10 . The right of peoples to self-

determination

Nearly every day there are media reports from around the world about some demand for

"the right of self-determination". This demand has been heard from Kurds and Palestinians,

Tibetans and Kashmiri, East Timorese and the people of Hong Kong, Qudbecois and Puerto

Ricans, Eritreans and Zulus, and from indigenous and racial groups, among many others. It

has been estimated that there are about 5,000 discrete ethnic or national groupings in the

world1 and that most of the armed conflicts at the moment are between groups in a State or

between a group and the State. Resolutions of these armed conflicts—and of those which

are not yet armed conflicts—may depend on decisions concerning the right of self-

determination.

While every State has the obligation to "promote the realization of the right of self-

determination" and "the duty to respect this right in accordance with the provisions of the

[United Nations] Charter", there is concern about international peace and security and a fear

of a disintegration of the current international system if the right of self-determination is

exercised by all who claim it.

32

Reading

Bill Bowring ―Self-determination: the revolutionary kernel of international law‖ Chapter 1 in

Bill Bowring The Degradation of the International Legal Order? The Rehabilitation of Law

and the Possibility of Politics (Routledge, 2008) pp.9-38 This is in your Reading Pack

Martti Koskenniemi ―National Self-Determination Today: Problems of Legal Theory and

Practice‖ v.43 (1994) International and Comparative Law Quarterly pp.241-269

Robert Mccorquodale ―Self-Determination: A Human Rights Approach‖ v.43 n.4 (1994)

International and Comparative Law Quarterly, pp 857-885

Gerry Simpson ―The Diffusion of Sovereignty: Self-Determination in the Post-Colonial Age‖

v.32 (1996) Stanford Journal of International Law pp.255-286

Bill Bowring and other authors ―The Right to Self-Determination for the Basques, Irish, Kurds

and Palestinians‖ (October 2009) Socialist Lawyer pp.18-28

Bill Bowring ―Marx, Lenin and Pashukanis on Self-Determination: Response to Robert Knox‖

Historical Materialism 19/2 (2011), 113-127