Research Handbook on International Human Rights Law Research Handbooks on International Law

Research Handbook on International Human
Rights Law


RESEARCH HANDBOOKS IN INTERNATIONAL LAW
This highly original series offers a unique appraisal of the state of the art of
research and thinking in international law. Taking a thematic approach, each
volume, edited by a prominent expert, covers a specific aspect of international
law or examines the international legal dimension of a particular strand of the
law. A wide range of sub-disciplines in the spheres of both public and private
law are considered; from international environmental law to international
criminal law, from international economic law to the law of international
organisations, and from international commercial law to international human
rights law. The Research Handbooks comprise carefully commissioned chapters from leading academics as well as those with an emerging reputation.
Taking a genuinely international approach to the law, and addressing current
and sometimes controversial legal issues, as well as affording a clear substantive analysis of the law, these Handbooks are designed to inform as well as to
contribute to current debates.
Equally useful as reference tools or introductions to specific topics, issues and
debates, the Handbooks will be used by academic researchers, post-graduate
students, practising lawyers and lawyers in policy circles.
Titles in this series include:
Research Handbook in International Economic Law
Edited by Andrew T. Guzman and Alan O. Sykes
Research Handbook on International Human Rights Law
Edited by Sarah Joseph and Adam McBeth
Handbook of Research on International Consumer Law
Edited by Geraint Howells, Iain Ramsay and Thomas Wilhelmsson with David
Kraft

Research Handbook on
International Human Rights
Law

Edited by

Sarah Joseph
Professor of Law and Director, Castan Centre for Human
Rights Law, Monash University, Australia

Adam McBeth
Senior Lecturer and Deputy Director, Castan Centre for
Human Rights Law, Monash University, Australia

RESEARCH HANDBOOKS IN INTERNATIONAL LAW

Edward Elgar
Cheltenham, UK • Northampton, MA, USA


© The Editors and Contributors Severally 2010
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
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UK
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Library of Congress Control Number: 2009937758

ISBN 978 1 84720 368 7 (cased)

02

Typeset by Cambrian Typesetters, Camberley, Surrey
Printed and bound by MPG Books Group, UK


Contents

List of contributors
Preface
1
2

3

4

5
6
7
8

9

10
11

12
13

vii
xiii

The United Nations and human rights
Sarah Joseph and Joanna Kyriakakis
Economic, social and cultural rights: an examination of state
obligations
Manisuli Ssenyonjo
Extraterritoriality: universal human rights without universal
obligations?
Sigrun I Skogly
Non-state actors and international human rights law
Robert McCorquodale
NGOs and human rights: channels of power
Peter J Spiro
Human rights in economic globalisation
Adam McBeth

Human rights and development
Stephen P Marks
Gender and international human rights law: the intersectionality
agenda
Anastasia Vakulenko
Refugees and displaced persons: the refugee definition and
‘humanitarian’ protection
Susan Kneebone
International criminal law
Elies van Sliedregt and Desislava Stoitchkova
The four pillars of transitional justice: a gender-sensitive
analysis
Ronli Sifris
The International Court of Justice and human rights
Sandesh Sivakumaran
The Council of Europe and the protection of human rights:
a system in need of reform
Virginia Mantouvalou and Panayotis Voyatzis

v

1

36

71
97
115
139
167

196

215
241

272
299

326


vi
14

15
16
17
18

19

20
21

Research handbook on international human rights law
The Inter-American human rights system: selected examples
of its supervisory work
Diego Rodríguez-Pinzón and Claudia Martin
African human rights law in theory and practice

Magnus Killander
The political economy and culture of human rights in East Asia
Michael C Davis
Islam and the realization of human rights in the Muslim world
Mashood A Baderin
Religion, belief and international human rights in the
twenty-first century
Peter Cumper
DRIP feed: the slow reconstruction of self-determination for
Indigenous peoples
Melissa Castan
Counter-terrorism and human rights
Alex Conte
Human rights education: a slogan in search of a definition
Paula Gerber

Index

353
388
414
440

467

492
512
541

567

Contributors

Mashood A Baderin is currently Professor of Law and Head of the School of
Law at the School of Oriental and African Studies (SOAS), University of
London. He researches in the areas of Islamic Law; International Law;
International and Comparative Human Rights Law; Human Rights and Islamic
Law, with particular interest in the interaction between International Law,
Human Rights Law and Islamic law in Muslim States. Amongst his publications are International Human Rights and Islamic Law (OUP, 2003 and 2005),
International Law and Islamic Law (Ashgate, 2008) and articles in leading
international academic journals. He is a founding co-editor of the Muslim
World Journal of Human Rights.
Melissa Castan is a Senior Lecturer and Deputy Director for the Castan
Centre for Human Rights Law. Her teaching and research interests are domestic and international Indigenous legal issues, constitutional law, international
human rights law and legal education. She has various publications on
Indigenous rights under international law, and recently authored
Constitutional Law (Pearson Education, 2008). She is co-author of The
International Covenant on Civil and Political Rights: Cases, Commentary and
Materials (OUP, 2004) and Federal Constitutional Law: A Contemporary
View (Lawbook, 2006). She is currently running a major research project on
capacity building for native title bodies with the Australian government.
Alex Conte is a consultant on security and human rights
(www.alexconte.com) who has worked within government and international
organisations, in private legal practice, and as a professor of international law.
A member of the advisory panel of experts to the United Nations Special
Rapporteur on the Promotion and Protection of Human Rights and
Fundamental Freedoms while Countering Terrorism, Dr Conte is also a fellow
to the International Policy Institute on Counter-Terrorism. He is the Series
Editor of the Ashgate International Law Series, and was the founding General

Editor of the New Zealand Yearbook of International Law.
Peter Cumper is a Senior Lecturer in the School of Law in the University of
Leicester, where he teaches Constitutional and Administrative Law, Human
Rights Law, and Law and Religion. He has published in a number of journals
in the UK and overseas, and is the joint editor of Minority Rights in the ‘New’
Europe (Kluwer, 1999).
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Research handbook on international human rights law

Michael C Davis is a Professor of Law at the Chinese University of Hong
Kong. He has served as the J. Landis Martin Visiting Professor of Law at
Northwestern University Law School (2005–2006), the Robert and Marion
Short Visiting Professor of Law at Notre Dame Law School (2004–2005) and
as the Schell Senior Fellow in Human Rights at the Yale Law School
(1994–1995). He has also served as the Chair of the Human Rights Research
Committee of the International Political Science Association and Chair of the
Pacific Rim Interest Group of the American Society of International Law. His
books include Constitutional Confrontation in Hong Kong (Macmillan Press,
1990), Human Rights and Chinese Values (OUP, 1995), and International
Intervention in the Post-Cold War World: Moral Responsibility and Power
Politics (M.E. Sharpe, 2004). He holds degrees from Ohio State University,
the University of California and Yale Law School.
Paula Gerber has been a lawyer for over 20 years. She spent five years working as a solicitor in London, and five years as an attorney in Los Angeles
before returning to Australia where she became a partner in a leading
Melbourne law firm. Paula is now a Senior Lecturer in Law at Monash
University and a Deputy Director of the Castan Centre for Human Rights Law.

Dr Gerber is an internationally recognised expert on human rights education.
She is the author of the book From Convention to Classroom: The Long Road
to Human Rights Education (VDM Publishing, 2008), as well as numerous
articles and book chapters about educating for human rights.
Sarah Joseph is Professor of Human Rights Law and Director of the Castan
Centre for Human Rights Law in the Faculty of Law at Monash University.
She has published many books and articles on human rights, on topics such as
the International Covenant on Civil and Political Rights, corporations and
human rights, trade and human rights, terrorism and human rights, torture, and
self determination. She is also an expert on Australian constitutional law. She
has been the recipient of Australian government funded grants for human
rights research. She has taught human rights in many different contexts nationally and internationally, including undergraduate, postgraduate, and at professional training seminars.
Magnus Killander is a doctoral candidate and research co-ordinator at the
Centre for Human Rights, Faculty of Law, South Africa. He has a law degree
from the University of Lund, Sweden, and a European Masters Degree in
Human Rights and Democratisation. Mr Killander is co-editor of the African
Human Rights Law Reports, associate editor of International Law in Domestic
Courts (ILDC) and editor of the Africa component of International Human
Rights Law (IHRL). ILDC and IHRL form part of the Oxford Reports on
International Law, an online service published by Oxford University Press.


Contributors

ix

The research of Mr Killander has been published in inter alia African Human
Rights Law Journal, Human Rights Quarterly and the Max Planck
Encyclopedia of Public International Law.
Susan Kneebone is a Professor of Law and a Deputy Director of the Castan

Centre for Human Rights Law at the Faculty of Law, Monash University.
Susan teaches forced migration and human rights, international refugee law
and practice, and citizenship and migration law. She has organised several
conferences and workshops on these issues, made submission to public
enquiries and frequently handles media enquiries. She is the author of many
articles on these issues and editor of several books, as well as the recipient of
several research grants from the Australian government.
Joanna Kyriakakis is a Lecturer at the Faculty of Law, Monash University.
Joanna received Arts/First Class Honours Law degrees from Flinders
University in 2001 and a Doctor of Juridical Science degree from Monash
University in 2009. She has published a number of articles on the subject of
corporations and public international law appearing in the Journal of
International Criminal Justice, Criminal Law Forum, and the Monash
University Law Review. Joanna has worked as a Legal Officer with the South
Australian Crown Solicitor’s Office and as a Solicitor in both private and
community legal practice, specialising in criminal, family and administrative
law. Her current research focus is international criminal law, comparative
criminal law and international human rights law.
Virginia Mantouvalou is Lecturer in Law and Deputy Director of the Centre
for European Law and Integration at the University of Leicester. She holds a
PhD and an LLM in Human Rights from the London School of Economics,
and an LLB from the University of Athens.
Stephen P Marks, Docteur d’État, Dipl. IHEI, is the François-Xavier
Bagnoud Professor of Health and Human Rights and Director of the Program
on Human Rights in Development at the Harvard School of Public Health. He
also teaches in the Faculty of Arts and Sciences at Harvard University. He is
currently chair of the UN High Level Task Force on the Implementation of the
Right to Development of the Human Rights Council.
Claudia Martin is a Professorial Lecturer in Residence and Co-Director of
the Academy on Human Rights and Humanitarian Law at American

University Washington College of Law. She holds a law degree from the
University of Buenos Aires, an LLM from American University Washington
College of Law, and also completed graduate studies in international relations
at a program sponsored by the Ministry of Foreign Affairs of Argentina and
the Government of Italy. She teaches and specialises in international law,


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Research handbook on international human rights law

international and comparative human rights law and Inter-American human
rights law. She serves on several international boards, including the Editorial
Board of Oxford Reports on International Law in Domestic Courts, Oxford
University Press and Amsterdam Center for International Law. Professor
Martin is also a contributor on Inter-American Human Rights Law for several
specialised human rights publications.
Adam McBeth is a Deputy Director of the Castan Centre for Human Rights
Law and a senior lecturer in the Faculty of Law at Monash University, where
he specialises in international law and human rights subjects. Adam has been
part of a team delivering human rights training courses to government and
civil society representatives from Australia, Indonesia and Iraq. He is the
author of International Economic Actors and Human Rights (Routledge,
2009).
Robert McCorquodale is the Director of the British Institute of International
and Comparative Law in London. He is also Professor of International Law
and Human Rights, and former Head of the School of Law, at the University
of Nottingham. Previously he was a Fellow and Lecturer in Law at St. John’s
College, University of Cambridge and at the Australian National University in
Canberra. Before embarking on an academic career, he worked as a qualified

lawyer in commercial litigation with leading law firms in Sydney and London.
Robert’s research and teaching interests are in the areas of public international
law and human rights law. He has published widely on these areas, and has
provided advice to governments, corporations, international organisations,
non-governmental organisations and peoples concerning international law and
human rights issues, including advising on the drafting of new constitutions
and conducting human rights training courses.
Diego Rodríguez-Pinzón is Professorial Lecturer in Residence and CoDirector of the Academy on Human Rights and Humanitarian Law at
American University, Washington College of Law. He teaches courses in the
fields of international law and human rights law. He is currently Ad Hoc Judge
in the Inter-American Court on Human Rights of the Organization of
American States. He has published extensively in the field of human rights
law. As correspondent for the British periodical Butterworths Human Rights
Cases, Professor Rodríguez-Pinzón covers the Americas; he also reports on
the Inter-American system for the Netherlands Quarterly of Human Rights.
Ronli Sifris received her BA/ LLB (Hons) from Monash University in 2003
where she graduated first in her class and her LLM in International Legal
Studies from New York University in 2006 as a Hauser Scholar. She was
admitted to practice in Victoria in 2005 and New York in 2008. Ronli has
worked as a consultant with the International Center for Transitional Justice in


Contributors

xi

New York and is currently completing a PhD at Monash University. She has
published numerous articles addressing various aspects of international law.
Sandesh Sivakumaran is a lecturer at the School of Law and member of the
Human Rights Law Centre, University of Nottingham. He has worked at the

International Court of Justice, the International Criminal Tribunal for the former
Yugoslavia and the Special Court for Sierra Leone. He is a member of the
International Law Association Committee on International Human Rights Law.
Sigrun I Skogly is Professor of Human Rights Law at Lancaster University
Law School, UK and Visiting Professor at Buskerud University College,
Norway. She is the author of a number of articles on human rights obligations,
economic, social, and cultural rights, and the relationship between human
rights and poverty. Her current research concerns states’ extraterritorial human
rights obligations. She is the author of The Human Rights Obligations of the
World Bank and the International Monetary Fund (Cavendish, 2001), Beyond
National Borders: States’ Human Rights Obligations in International
Cooperation (Intersentia, 2006), and co-editor with Mark Gibney of Universal
Human Rights and Extraterritorial Obligations (forthcoming 2010).
Peter J Spiro is Charles Weiner Professor of Law at Temple University Law
School. He has written widely on the role of non-state actors in international
affairs, the constitutional law of US foreign relations, and citizenship practice.
He is the author of Beyond Citizenship: American Identity after Globalization
(OUP, 2008).
Manisuli Ssenyonjo is a Senior Lecturer in Law at Brunel University,
London, where he teaches and researches in areas of Public International Law
and Human Rights Law. He has published widely on these areas, and has
provided advice to governments, corporations, international organisations, and
non-governmental organisations concerning human rights issues, including
conducting human rights training courses. His recent publications include
several articles published in international journals including the Nordic
Journal of International Law, Netherlands International Law Review,
International Journal of Constitutional Law, Chinese Journal of International
Law, Netherlands Quarterly of Human Rights, African Journal of
International an Comparative Law, Human Rights Law Review, International
Journal of Law, Policy and the Family, The International Journal of Human

Rights, and International Criminal Law Review. He is the author of several
book chapters and a recent monograph on Economic, Social and Cultural
Rights in International Law (Hart Publishing, 2009).
Desislava Stoitchkova is doctoral researcher and lecturer of international
criminal law at Utrecht University, the Netherlands. Her research is currently


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Research handbook on international human rights law

focused on the topic of direct corporate criminal responsibility in the context
of the International Criminal Court (ICC). She is also involved in human rights
training projects with magistrates and non-governmental organisations both in
the Netherlands and abroad. Previously she was a researcher at the
Netherlands Institute of Human Rights (2004–2006) and clerked at the ICC in
2003.
Anastasia Vakulenko is a lecturer in law at the University of Birmingham.
Having obtained her LLM and PhD degrees at the University of Nottingham,
she previously lectured at the University of Dundee. Her research interests are
in the area of human rights law, examined through the prism of feminist and
critical theory, as well as religion and secularism studies.
Elies van Sliedregt is Professor of Criminal Law and Procedure at VU
University Amsterdam. She is a member of the editorial board of the Leiden
Journal of International Law and is President of the International Criminal
Law Network, based in the Hague. She sits as a part-time judge in the extradition chamber of the District Court in Amsterdam and is a member of The
Young Academy of The Royal Netherlands Academy of Arts and Sciences.
Her research interests lie in the field of international, European and comparative criminal law.
Panayotis Voyatzis is a Lawyer at the European Court of Human Rights. He
holds a PhD and an LLM in Public Law and Human Rights from the

University Paris I (Panthéon-Sorbonne), and an LLB from the University of
Athens.


Preface

The compilation and editing of a research handbook on international human
rights law is a daunting task, given the vast breadth of the subject matter and,
alas, the sheer number of different human rights issues arising around the
globe. We can assure readers that we know that many important topics have
been missed – it is simply impossible to encapsulate them all in a single book.
However, we are also confident that the chapters presented herein provide a
first-rate grounding for scholars seeking to wrap their heads around most of
the major topics within the discipline. The chapters are designed to be both
accessible to the novice human rights scholar and yet of great interest to the
seasoned human rights researcher.
This handbook brings together the work of 25 leading human rights scholars from all over the world. As the various chapters overlap in theme, it was
not possible to organise the book into separate parts: rather we have chosen to
organise the book into a logical order, though the chapters can of course be
read in any order. The book begins with some chapters outlining general issues
regarding human rights, such as the history of norm generation, institution
building and enforcement at the global level (Chapter 1 – Sarah Joseph and
Joanna Kyriakakis) and the state of play regarding economic, social and
cultural rights (Chapter 2 – Manisuli Ssenyonjo). The book then moves to
examine jurisdictional issues, such as human rights and extraterritoriality
(Chapter 3 – Sigrun Skogly), and human rights in the non-state sphere
(Chapter 4 – Robert McCorquodale). Chapter 5 (Peter Spiro) logically follows
Chapter 4, outlining the crucial role of non-government organisations in
enforcing and promoting human rights norms. The next six chapters cover
overlaps between human rights law and, respectively, international economic

law (Chapter 6 – Adam McBeth), development law (Chapter 7 – Stephen
Marks), feminist theory (Chapter 8 – Anastasia Vakulenko), international
refugee law (Chapter 9 – Susan Kneebone), international criminal law
(Chapter 10 – Elies van Sliedregt and Desislava Stoitchkova), and transitional
justice (Chapter 11 – Ronli Sifris). The following chapters then take a more
institutional approach, focusing on the role of the International Court of
Justice in the protection of human rights (Chapter 12 – Sandesh Sivakumaran),
the protection of human rights within the European system (Chapter 13 –
Virginia Mantouvalou and Panayotis Voyatzis), protection of human rights
within the Inter-American system (Chapter 14 – Diego Rodríguez-Pinzón and
Claudia Martin), and protection of human rights within the African Union
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Research handbook on international human rights law

(Chapter 15 – Magnus Killander). Continuing the regional theme, Chapter 16
(Michael Davis) analyses human rights initiatives in Asia, while Chapter 17
(Mashood Baderin) captures human rights perspectives from the Muslim
world. Chapter 18 (Peter Cumper) connects to Chapter 17, in examining
human rights and religious rights. Like Chapter 18, the final three chapters
examine human rights in relation to specific issues: namely Indigenous rights
(Chapter 19 – Melissa Castan), terrorism (Chapter 20 – Alex Conte), and
human rights education (Chapter 21 – Paula Gerber).
We must thank our authors for their excellent contributions and cooperation in the preparation of this volume. In particular, we must thank Cameron
Miles and Sarah Mauriks for their invaluable research assistance. We must
thank all of the crew at Edward Elgar for their support, assistance and
patience. Sarah must thank her family, especially her parents, and friends for

their support. Adam wishes to thank his wife, Belinda, and his parents. We
must both thank our colleagues at the Castan Centre for Human Rights Law,
as well as the Monash Law Faculty.


1. The United Nations and human rights
Sarah Joseph and Joanna Kyriakakis

1 Introduction
After the Second World War, the United Nations (‘UN’) brought human rights
firmly into the sphere of international law in its own constituent document, the
UN Charter,1 in 1945.2 The purposes of the UN included, in Article 1(3), the
promotion and encouragement of human rights and fundamental freedoms.
Under Articles 55 and 56, Member States are committed to ‘joint and separate
action’ to create ‘conditions of stability and well-being’ across the world,
including the promotion of ‘universal respect for, and observance of, human
rights and fundamental freedoms for all without distinction as to race, sex,
language, or religion’. Thus, from 1945, it was clear that human rights could
no longer be characterised as a domestic issue, hidden by the veil of State
sovereignty.
Since 1945, the UN has been instrumental in the process of standardsetting, that is, creating treaties and other documents that set out universally
recognised human rights. Most famously of course, it adopted the Universal
Declaration on Human Rights (‘UDHR’) in 1948,3 following up (though years
later) with a series of treaties protecting various human rights.
The UN has also created various internal institutions to monitor and supervise the implementation of human rights. There are political bodies, established under the rubric of the UN Charter, such as the Human Rights Council
and its predecessor, the Commission on Human Rights. There are treaty
bodies, established under the core UN human rights treaties, which monitor
the implementation and interpretation of their particular treaties.
State sovereignty, however, continues to play a crucial role in relation to
the enforcement of human rights, long regarded as the ‘Achilles heel’ of the

global human rights system. Enforcement mechanisms are generally quite

1
Charter of the United Nations, 1 UNTS XVI, 24 October 1945 (‘UN
Charter’).
2
Human rights were largely unprotected by international law prior to the
Second World War, with exceptions arising, for example, in the context of international humanitarian law and the rights of aliens.
3
GA Res 217(111) of 10 December 1948, UN Doc A/810 at 71 (1948)
(‘UDHR’).

1


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Research handbook on international human rights law

weak, with only the UN Security Council empowered to mandate sanctions
that go beyond mere condemnation by the international community. While
international human rights law has developed to the point where States can no
longer legitimately claim that human rights are solely a domestic matter, there
are significant limits to the international community’s ability to respond to
recalcitrant States that persist in human rights abuses. Enforcement machinery
has not kept pace with standard-setting.
In this chapter, we will analyse three elements of the UN’s role in international human rights law: standard-setting, the main UN human rights institutions, and the vexed question of enforcement.
2 Standard-setting
The UN endorsed a list of recognised human rights in the UDHR. No State,
either in 1948 or upon joining the UN, has ever denounced the UDHR.4 The

UDHR itself was reaffirmed in the Vienna Declaration and Programme of
Action,5 adopted after the World Conference on Human Rights in 1993, and
remains the cornerstone expression of global human rights values. The UDHR
was not adopted as a legally binding instrument. It is arguable however that its
norms have come to be crystallised as customary international law by the
present day.6 Furthermore, it is arguable that the UDHR defines ‘human
rights’ for the purposes of the human rights provisions of the UN Charter, such
as Articles 1(3), 55 and 56, which are recognised as peremptory international
norms.7
The standard-setting activities of the UN, which had got off to such a quick
start with the UDHR being adopted within a few years of the institution’s
creation, became bogged down with Cold War politics. No new standards
were adopted until 1965, with the adoption of the International Convention on
the Elimination of all Forms of Racial Discrimination (‘CERD’).8 Between

4

Eight States abstained when the General Assembly adopted the UDHR:
Byelorussia, Czechoslovakia, Poland, the Ukraine, the USSR, Yugoslavia, Saudi
Arabia, and South Africa.
5
UN Doc A/CONF.157/23 (1993), 25 June 1993, endorsed by GA Res 48/121
of 14 February 1994, [2].
6
See, eg, Louis B Sohn, ‘The new international law: protection of the rights of
individuals rather than States’ (1982) 32 American University Law Review 1, 15–17.
On the other hand, it is perhaps arguable that, while some UDHR rights may satisfy the
tests of customary international law (State practice and opinio juris), such as the right
to be free from torture, it is optimistic to ascribe such a status to the full slate of UDHR
rights.

7
Ibid, 16. See also Chapter 12, p. 316.
8
Opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4
January 1969).


The United Nations and human rights

3

1948 and 1965, however, an important circumstance was the influx of newly
decolonised nations into the UN, bringing a new perspective to the human
rights debate. The strong influence of this group within the UN is evident in
the Declaration on the Granting of Independence to Colonial Countries and
Peoples of 1960,9 which acknowledged the evils of colonialism and the importance of the right of self-determination, and the strong condemnation of
apartheid in General Assembly Resolution 1761 of 1962.10 It is not surprising
that CERD, the first human rights treaty adopted by the UN, focused on an
issue with which developing States were most concerned.
In 1966, most of the norms in the UDHR11 were enshrined in two legal
documents, the International Covenant on Economic, Social and Cultural
Rights (‘ICESCR’)12 and the International Covenant on Civil and Political
Rights (‘ICCPR’).13 The three documents are often collectively called ‘The
International Bill of Rights’. The splitting of the UDHR rights into two sets of
rights was driven by a number of issues, including perceived differences
between the respective categories of rights14 and Cold War divisions: the
Eastern bloc tended to champion ICESCR rights, while Western States were
seen as the major proponents of ICCPR rights.15 An Optional Protocol to the
ICCPR was also adopted in 1966, providing for a right of individual petition
in respect of violations of the ICCPR against States that ratify that Protocol.

Another lull in standard-setting was followed in 1979 by the adoption of the
Convention on the Elimination of All Forms of Discrimination against Women
(‘CEDAW’),16 the Convention against Torture and other Cruel, Inhuman and
Degrading Treatment or Punishment (‘CAT’)17 in 1984, the Convention on

9
10
11

GA Res 1514 (XV) of 14 December 1960, UN Doc A/4684 (1960).
GA Res 1761 (XVII) of 6 November 1962.
Certain discrete rights are excluded, such as the right to seek and enjoy
asylum (Article 14) and the right to property (Article 17).
12
Opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3
January 1976).
13
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force
23 March 1976).
14
See also Chapter 2.
15
Sarah Joseph, Jenny Schultz and Melissa Castan, The International Covenant
on Civil and Political Rights (2nd ed, Oxford University Press, Oxford, 2004) 7. For
an analysis of the decision to draft two separate covenants see UN Secretary-General,
Annotations to the Text of the Draft International Covenants on Human Rights, UN
Doc A/2929 (1955) 7–8. The decision itself was confirmed in GA Res 543 (VI) of 5
February 1952.
16
Adopted by GA Res 34/180 of 18 December 1979. Opened for signature 18

December 1979, 1249 UNTS 13 (entered into force 3 September 1981).
17
Adopted by GA Res 39/46 of 10 December 1984. Opened for signature 10
December 1984, 1465 UNTS 85 (entered into force 26 June 1987).


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Research handbook on international human rights law

the Rights of the Child (‘CRC’)18 in 1989 and the International Convention on
the Protection of the Rights of All Migrant Workers and Members of their
Families (‘MWC’)19 in 1990. The Declaration on the Right to Development
(‘DRD’)20 was adopted in 1986, the culmination of years of lobbying by
developing States. However, its passage to recognition in a legally binding
treaty has stalled since. A similar fate has befallen the Declaration on the
Elimination of Intolerance based on Religion or Belief,21 which was adopted
in 1981.
The 1990s and the early part of the 2000s saw the adoption of a number of
optional protocols, some of which added substantive rights to their respective
parent treaties,22 while others provided for new procedural mechanisms.23
In 2006, the UN adopted the Convention on the Rights of Persons with
Disabilities (‘Disabilities Convention’)24 and the International Convention for
the Protection of All Persons from Enforced Disappearance (‘Disappearances
Convention’).25 In 2007, in another nod to the recognition of new generations
of rights, the General Assembly adopted the Declaration on the Rights of
Indigenous Peoples (‘DRIP’).26
Most recently, the UN adopted an Optional Protocol to ICESCR in 2008,27

18

Adopted by GA Res 44/25 of 20 November 1989. Opened for signature 20
November 1989, 1577 UNTS 3 (entered into force 2 September 1990).
19
Adopted by GA Res 45/158 of 18 December 1990. Opened for signature 18
December 1990 (entered into force 1 July 2003).
20
GA Res 41/128 of 4 December 1986: see, generally, Chapter 7.
21
GA Res 36/55 of 25 November 1981: see also Chapter 18.
22
See, eg, Optional Protocol to the Convention on the Rights of the Child on the
Involvement of Children in Armed Conflict, adopted by GA Res 54/263 of 25 May
2000, opened for signature 25 May 2000 (entered into force 12 February 2002);
Optional Protocol to the Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography, adopted by GA Res 54/263 of 25 May
2000, opened for signature 25 May 2000 (entered into force 18 January 2002); Second
Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, adopted
by GA Res 44/128 of 15 December 1989, opened for signature 15 December 1989,
1642 UNTS 414 (entered into force 11 July 1991).
23
See, eg, Optional Protocol to the CEDAW, adopted by GA Res 54/4 of 6
October 1999, opened for signature 10 December 1999 (entered into force 22 December
2000); Optional Protocol to the CAT, adopted by GA Res 57/199 of 18 December 2002,
opened for signature 4 February 2003 (entered into force 22 June 2006).
24
Adopted by GA Res 61/106 of 13 December 2006. Opened for signature 30
March 2007 (entered into force 3 May 2008).
25
Adopted by GA Res 61/177 of 20 December 2006. Opened for signature 6

February 2007 (not yet in force).
26
GA Res 61/295 of 13 September 2007: see also Chapter 19.
27
Adopted by GA Res A/RES/63/117 of 10 December 2008, opened for signature 24 September 2009.


The United Nations and human rights

5

which will allow for individual petitions regarding alleged violations of
ICESCR once ten States ratify it. The adoption of this Protocol finally kills off
a long-standing supposition that economic, social and cultural rights are not
justiciable – an unfortunate assumption that has hampered their development.28
The UN has been active over its history in recognising and adopting human
rights standards. It has branched out into new areas of human rights, though it
has cautiously failed to enshrine many of them into legal form, as can be seen
with the DRD and the 25-year battle to recognise distinct indigenous rights in
the non-binding DRIP. The International Bill of Rights remains the core of the
UN human rights system, with the other treaties, and most other declarations,
tending to expand upon distinct rights within the UDHR and the Covenants, or
to provide more detailed protection for distinct classes of human rights victims.
3 UN human rights institutions
The UN human rights institutions are generally either ‘Charter bodies’ or
‘treaty bodies’. Charter bodies are established by the Charter itself, or by
bodies which are themselves created by the Charter. Treaty bodies are created
by the respective UN human rights treaties, referred to above. The main
Charter bodies are the political UN human rights institutions, as they are made
up of the representatives of governments, while the treaty bodies are the quasijudicial arm of UN human rights supervision, composed of human rights

experts acting in their individual capacity. Both types of bodies are supported
by the Office of the High Commissioner for Human Rights.
Charter bodies
The General Assembly is a principal organ of the UN,29 comprising all
members of the UN30 with equal voting status.31 In relation to human rights
the General Assembly has considerable authority. The General Assembly is
entitled to ‘initiate studies and make recommendations . . . assisting in the
realization of human rights and fundamental freedoms’.32 Further, all other
UN human rights bodies report back to the General Assembly, including the
Security Council through its annual report. The General Assembly can make
recommendations for action either through resolutions or through declarations. While both are non-binding in nature, they can have a significant effect,
for example, on the structures of the various UN human rights bodies and
28
29
30
31
32

See also Chapter 2.
UN Charter, Article 8.
UN Charter, Article 9.
UN Charter, Article 18.
UN Charter, Article 13.


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Research handbook on international human rights law

through their moral force, representing as such the majority State opinion on

an issue.33 Unanimous or consensus resolutions can also constitute strong
evidence of the existence of a customary norm.34
Another principal organ under the Charter is the Economic and Social
Council (‘ECOSOC’). ECOSOC consists of 54 members, each with equal
voting status,35 elected by the General Assembly to serve three-year terms.36
Like the General Assembly, ECOSOC has a reasonably wide mandate in relation to human rights. It is authorised by Article 62 of the UN Charter to ‘make
or initiate studies and reports with respect to international, economic, cultural,
educational, health and related matters’ and may ‘make recommendations for
the purpose of promoting respect for, and observance of, human rights and
fundamental freedoms’. ECOSOC receives and transmits to the General
Assembly the reports of the treaty bodies and also coordinates a wide variety
of UN programmes.37
ECOSOC effectively delegated its human rights functions to the
Commission on Human Rights (‘CHR’) in 1946 in accordance with Article 68
of the UN Charter.38 The CHR became the engine room of UN human rights
activity. For example, the CHR drafted most of the UN human rights documents prior to its dissolution in 2006.39 In that year, it was replaced by the
Human Rights Council, which is now the main Charter body dealing with
human rights.
A The Commission on Human Rights
In its final form, the Commission on Human Rights had 53 members, elected
by ECOSOC to serve three-year renewable terms in their capacity as representatives of their governments. Over its 60 years the CHR made significant
contributions to the establishment of an increasingly robust international
human rights legal framework. Through its standard-setting and norm development it produced the bulk of international human rights law, outlined above,

33

Rhona K M Smith, Textbook on International Human Rights (Oxford
University Press, Oxford, 3rd ed, 2007) 53.
34
See, eg, Anthony Aust, Handbook of International Law (Cambridge

University Press, Cambridge/New York, 2005) 7; Andrew T Guzman, ‘Saving
Customary International Law’ (2005) 27 Michigan Journal of International Law 115,
154–5.
35
UN Charter, Article 67.
36
UN Charter, Article 61.
37
Smith, above n 33, 56.
38
ECOSOC resolution 5[1], 16 February 1946.
39
CEDAW is an exception; it was developed and drafted by another subsidiary
committee of ECOSOC, the Commission on the Status of Women.


The United Nations and human rights

7

that now governs the conduct of States.40 It also developed complaints mechanisms and a system of special procedures to garner reports on thematic
human rights issues or the human rights situations in particular States. It was
credited as the most accessible UN body for non-government organisations
(‘NGOs’) to provide input on human rights issues.41 The CHR was assisted in
its functions by the Sub-Commission on the Promotion and Protection of
Human Rights, a ‘think tank’ composed of 26 human rights experts serving in
their individual capacities.42
The CHR did not initially envisage its role as incorporating enforcement.
Until 1967, the CHR, by its own initiative, was not entitled to take any action
in response to complaints concerning human rights.43 However, the increasing

number of newly decolonised nations in the UN by the mid-1960s agitated for
measures to be taken by the CHR against apartheid in South Africa and ongoing colonialism. In response, the CHR overturned the limitation on its
enforcement powers and developed a number of different procedures to deal
with alleged violations of human rights. Although initially focused on racial
and colonial policies, over time these procedures were applied to the broad
spectrum of human rights issues.44
The first procedure adopted was the 1235 procedure for public debate
focusing on violations in particular States.45 The procedure evolved so that it
eventually involved two aspects. First, public debate during the CHR’s annual
session allowed the public identification and discussion of country-specific
situations involving human rights abuses, which could result in the shaming of
the scrutinised State, offers of technical assistance or resolutions critical of the

40
Of course, the Commission did not adopt the treaties which post-date its existence, such as the Disabilities Convention.
41
International Service for Human Rights, A New Chapter for Human Rights: A
Handbook on Issues of Transition from the Commission on Human Rights to the
Human Rights Council (International Service for Human Rights and Friedrich Ebert
Stiftung, Geneva, June 2006) 10.
42
The Sub-Commission on Prevention of Discrimination and Protection of
Minorities, formed in 1947, was renamed the Sub-Commission on the Promotion and
Protection of Human Rights in 1999.
43
ECOSOC resolution 75(V) of 5 August 1947, approving a Statement adopted
by the Commission in its first session.
44
For an outline of the various techniques for responding to human rights violations and their development see Henry J Steiner, Philip Alston and Ryan Goodman,
International Human Rights in Context: Law, Politics, Morals (3rd ed, Oxford

University Press, Oxford, 2008) 746–91.
45
The procedure takes its name from the original ECOSOC resolution establishing it: ECOSOC resolution 1235 (XLII) of 6 June 1967.


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Research handbook on international human rights law

performance of the State in question.46 Second, the CHR could appoint a
Special Rapporteur with a mandate to investigate and report on the human
rights situation in a specific country following on from matters raised during
the public debate, or request the UN Secretary-General to appoint a Special
Representative with a similar function.47 This second aspect derived from the
1235 procedure became known as one of the ‘special procedures’ of the CHR
(subsequently transferred to the Human Rights Council), together with a similar procedure focusing on thematic, rather than country-specific, situations.
The thematic procedures, also derived from the 1235 procedure, involved
the appointment of experts to investigate and report on all aspects, including
violations, of human rights relevant to a specific theme. Current thematic
mandates under the Human Rights Council include the working groups on
enforced or involuntary disappearances, the right to food, and the situation of
human rights and fundamental freedoms of indigenous persons.48
Country-specific mandates became one of the most controversial functions
of the CHR and have only been adopted in relation to a small proportion of
situations identified in the CHR’s public debates. However, the country and
thematic special procedures have also been ‘celebrated as one of the major
achievements of the Commission’, particularly as a means of highlighting the
existence or development of urgent human rights situations.49
Another technique developed by the CHR to deal with alleged human rights
violations was the 1503 procedure.50 As it developed, the 1503 procedure

established a means by which the CHR, through its Sub-Commission and a
specialised Working Group, could consider confidentially the complaints
received from any person or group who was a victim or had knowledge of
human rights violations in order to determine whether the complaint revealed
a ‘consistent pattern of gross and reliably attested violations of human rights

46
47
48

Steiner, Alston and Goodman, above n 44, 760–61.
Ibid.
For a complete list, and details, of current thematic special procedure mandate
holders, see Special Procedures assumed by the Human Rights Council, Thematic
Mandates (20 November 2008) Office of the United Nations High Commissioner for
Human Rights < />accessed at 12 December 2008.
49
Jeroen Gutter, ‘Special Procedures and the Human Rights Council:
Achievements and Challenges Ahead’ (2007) 7(1) Human Rights Law Review 93, 105.
50
The procedure takes its name from the original ECOSOC resolution establishing it: ECOSOC resolution 1503 (XLVIII) of 27 May 1970. For an outline of the
main steps in the evolution of the 1503 procedure see Maria Francisca Ize-Charrin,
‘1503: A Serious Procedure’ in Gudmundur Alfredsson et al (eds), International
Human Rights Monitoring Mechanisms: Essays in Honour of Jakob Th. Moller
(Martinus Nijhoff Publishers, The Hague, 2001) 293–310.


The United Nations and human rights

9

and fundamental freedoms’.51 If such a pattern was identified the CHR could
work confidentially with the State in question in relation to the complaint.
The value of the 1503 procedure was its scope, which allowed consideration of complaints from individuals against any country regardless of whether
it was a party to particular human rights treaties. One of the major problems
of the mechanism was the degree of secrecy around the progress of a
complaint and inefficiencies in the processing of complaints.52
Despite its successes, the CHR came increasingly to be seen as unable to
properly fulfil its functions due to ‘its declining credibility and professionalism’.53 A number of key problems were widely recognised. Cynical manipulation of the CHR’s mechanisms by Member States in order to avoid scrutiny
and possible public censure or to score political points against other States,54
the increasing ‘politicisation’ of the CHR and in particular the selectivity
reflected in the choice of States singled out for country-specific measures,55
and a number of high-profile elections to the CHR of States with particularly
poor human rights records56 all fuelled the view that the CHR needed to be
radically reformed in order to preserve the integrity of the UN system.
B The Human Rights Council
The Human Rights Council (‘Council’) came into existence on 15 March

51
52

ECOSOC resolution 1503 (XLVIII), above n 50, [1].
Claire Callejon, ‘Developments at the Human Rights Council in 2007: A
Reflection of its Ambivalence’ (2008) 8 (2) Human Rights Law Review 323, 333–4.
53
Secretary-General Kofi Annan, In Larger Freedom: Toward Development,
Security and Human Rights for All, [182], UN Doc A/59/2005 (21 March 2005). See
also High Panel on Threats, Challenges and Changes, A More Secure World: Our
Shared Responsibility, [283], UN Doc A/59/565 (2 December 2004).
54

Annan, above n 53, [182]; High Panel, above n 53, [283]; Nazila Ghanea,
‘From UN Commission on Human Rights to UN Human Rights Council: One Step
Forwards or Two Steps Sideways?’ (2006) 55 International and Comparative Law
Quarterly 695, 697–8.
55
See, eg, Ved P Nanda, ‘The Protection of Human Rights under International
Law: Will the UN Human Rights Council and the Emerging Norm “Responsibility to
Protect” Make a Difference?’ (2007) 35 Denver Journal of International Law and
Policy 353, 357–64; Patrizia Scannella and Peter Splinter, ‘The United Nations Human
Rights Council: A Promise to be Fulfilled’ (2007) 7(1) Human Rights Law Review 41,
45.
56
For example, the defeat in May 2001 of the United States in its bid for re-election to the CHR, together with the concurrent membership of the Sudan and its re-election in May 2004, was significant in contributing to the controversy surrounding
membership: see Philip Alston, ‘Reconceiving the UN Human Rights Regime:
Challenges Confronting the New UN Human Rights Council’ (2006) 7 Melbourne
Journal of International Law 185, 191–3.


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200657 to replace the CHR as the key political human rights body in the UN,
with a general mandate to address human rights issues. Like the CHR before
it, the Council is responsible for promoting the protection of human rights,
fostering international cooperation on human rights, providing capacitybuilding assistance to States to help them to meet their human rights obligations, and responding to specific violations of human rights.
In the context of the negative dynamics that had come to characterise the
CHR and the open hostility shown by some States to the more condemnatory
aspects of the CHR’s work, concern arose that the opportunity presented by
the reform process might be exploited by States in order to clip the wings of

the CHR and to potentially dilute some of its more controversial powers,
particular those regarding the special procedures. Ultimately, the status quo
has largely been retained. The new Council is not substantially different in
composition to its predecessor and has retained all of the same general mechanisms available to the CHR – special procedures, a complaints mechanism,
significant NGO access and an independent advisory body – as well as obtaining a new mechanism: universal periodic review.58 There have, however, been
some changes to the mechanisms retained, some of which tend to strengthen
and others to weaken human rights protection.
(i) Composition, status and meetings of the Council The question of
membership came to dominate the reform debates as a principal factor in the
negative dynamics that had come to characterise the former CHR.59 Ultimately,
from the 53-member CHR, the size of the Council has been reduced to 47
Member States. This satisfies neither proposals to reduce the Council’s size
more dramatically to foster more focused debates,60 nor proposals for universal membership to avoid the risk of further politicisation,61 nor the more radi-

57

The Human Rights Council was established by resolution of the General
Assembly: Resolution on the Human Rights Council, GA Res 60/251, UN GAOR, 6th
sess, 72nd plen mtg, UN Doc A/RES/60/251 (2006) (‘GA Res 60/251’). The Human
Rights Commission was abolished, taking effect 1 June 2006, by resolution of the
Economic and Social Council: Implementation of GA Res 60/251, ESC Res 2/2006, UN
ESCOR, 62nd sess, UN Doc E/RES/62/2 (2006). For an outline of the reform process
see Callejon, above n 52.
58
The retention of a system of special procedures, expert advice and a
complaints procedure was confirmed by GA Resolution 60/251, [6].
59
Alston, above n 46, 188–98; Ghanea, above n 54, 699.
60
For example, Secretary-General Kofi Annan, Human Rights Council:

Explanatory Note of the Secretary General, [13], UN Doc A/59/2005/Add. 1 (23 May
2005).
61
See, eg, High Panel, above n 53, [285].