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Human rights obligations of non-state actors

Author: Clapham, Andrew Series: Collected courses of the Academy of European Law ; 15, 1 Publisher: European University Institute, 2006. ; Oxford University Press (OUP) 2006.Language: EnglishDescription: 613 p. ; 24 cm.ISBN: 0199288461 ; 978-0199288465Type of document: BookBibliography/Index: Includes bibliographical references and index
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Book Europe Campus
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Print JA70 .R5 C53 2006
(Browse shelf)
Available 001229016
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Includes bibliographical references and index


Human Rights Obligations of Non-State Actors Contents Table of Cases Tables of Treaties, Legislation, and other Relevant Instruments Table of Abbreviations Introduction Globalization Privatization Fragmentation Feminization 1 Old Objections and New Approaches 1.1 The Expanding Scope of International Law 1.2 The Trivialization Argument 1.3 The Legal Impossibility Argument 1.4 The Policy Tactical Argument 1.5 The Legitimization of Violence Argument 1.6 The Rights as Barriers to Social Justice Arguments 1.7 New Ways of Looking at Human Rights 2 Thinking Responsibly about the Subject of Subjects 2.1 Subjects as Prisoners of Doctrine 2.2 The Reparations for Injuries Opinion, the United Nations, and UN Agencies 2.3 Certain Non-Universal Inter-Governmental Organizations 2.4 Acquiring Rights and Duties through Capacity rather than Subjectivity 2.5 Rights without Remedies--Duties without Jurisdictions 2.6 The International Committee of the Red Cross 2.7 The Legal Subjectivity of Transnational Corporations 2.8 International Capacity Derived from the Rights of Non-State Actors to Complain to International Instances under Treaty Law 2.9 Final Remarks on the International Law Obligations of Non-State Actors xv xxiv xxx 1 4 8 12 15 25 29 33 35 41 46 53 56 59 59 63 69 70 74 76 76 81 82 3 Characteristics of International Human Rights Law 3.1 Customary International Law 3.2 Jus Cogens or Peremptory Norms of International Law 3.3 Human Rights Treaties 3.4 International Crimes 3.5 Erga Omnes Obligations 3.6 Universal Standards 3.7 Recategorization of Human Rights Violations and Hybrid Types of Obligation 4 The United Nations 4.1 The United Nations Organization 4.1.1 Obligations on the UN and Other Entities Engaged in Armed Conflict, Multilateral Peace-Keeping, and Peace-Enforcement Operations 4.1.2 Claims against UN Peace Operations 4.1.3 The Principles and Spirit of General Conventions Applicable to the Conduct of Military Personnel 4.1.4 UN Human Rights Obligations and the Issue of Discrimination in Employment 4.1.5 UNMIK in Kosovo and the Issue of UN Administration of Territory 4.1.6 Action by the UN Security Council 4.1.7 Summary of Legal Issues Related to the Human Rights Obligations of the United Nations 4.2 The Obligations of the United Nations' International Financial Institutions 4.2.1 The Legal Arguments over Human Rights at the World Bank and the IMF 4.2.2 The 2001 Opinion of the IMF General Counsel 4.2.3 The Content of the Human Rights Obligations of the International Financial Institutions 4.2.4 The World Bank's Operational Standards and the Inspection Panel 4.2.5 The World Bank Inspection Panel and the Chad Pipeline Report 4.2.6 International Investment Protection through ICSID at the World Bank 4.2.7 Summary Conclusion Regarding the World Bank and the IMF 5 The World Trade Organization and the European Union 5.1 The World Trade Organization 5.1.1 Decisions by the Panels and Appellate Body 85 85 87 91 94 96 99 100 109 110 110 115 118 124 128 132 136 137 142 145 150 152 153 155 157 161 161 165 Protecting Human Rights from the WTO through the Law of Treaty Interpretation Trade Sanctions to Protect Human Rights Precluded by WTO Rules The Threat to Human Rights and Human Rights Enforcement from WTO Agreements 5.1.2 Summary Conclusions Regarding the WTO 5.2 The European Community and the European Union 5.2.1 The European Community as a Party to Treaties with Human Rights Clauses 5.2.2 Obligations on the Community in the Community Legal Order The European Union Charter of Human Rights and Fundamental Freedoms The European Community before the European Court of Human Rights Community Law as the Source of Human Rights Obligations on Non-State Actors 5.2.3 Summary Conclusions Regarding the European Community and the European Union 6 Corporations and Human Rights 6.1 Corporate Responsibility and Corporate Accountability 6.2 Transnationals, Multinationals, and National Corporations 6.3 The OECD Guidelines for Multinational Enterprises 6.3.1 The OECD Guidelines' Implementation Procedures 6.4 The Tripartite Declaration of Principles Concerning Multinational Enterprises 6.4.1 The Tripartite Declaration's Links to Binding Obligations 6.4.2 Implementing the Tripartite Declaration 6.5 The UN Global Compact (2000) and the Incorporation of Respect for Human Rights into Business and UN Practices 6.6 Initiatives at the UN Sub-Commission and Commission on Human Rights and the General Human Rights Obligations of Corporations 6.7 The Role of International Law 6.7.1 State Responsibility for Corporations 6.7.2 Customary International Law Obligations for Corporations 6.7.3 International Treaties that Demand Action against Legal Persons 6.8 The Alien Tort Claims Act in the United States 6.8.1 Corporate Complicity in Violations of Human Rights Law 6.8.2 Corporate Complicity in the Unocal Ruling 6.8.3 The Actus Reus of Complicity in the Unocal Case 166 172 175 177 177 178 180 181 185 189 193 195 195 199 201 207 211 213 216 218 225 237 241 244 247 252 254 255 256 6.8.4 The Mens Rea Required for Complicity in the Unocal Case 257 6.8.5 The Application in the Unocal Case of a Non-Criminal Law Test for Third-Party Liability for Violations of International Law 259 6.8.6 Which Tests to Use for Corporate Human Rights Abuses under International Law: Criminal Law or Civil (Tort) Law? 261 6.8.7 Wiwa v Shell and the Issue of Complicity in International Torts 262 6.9 The Test for State Responsibility for State Complicity 263 6.10 Summary on Corporate Complicity in Human Rights Abuses under International Law 265 6.11 Final Comments on Corporate Responsibility under International Law 266 7 Non-State Actors in Times of Armed Conflict 271 7.1 Rebels, Insurgents, and Belligerents 271 7.2 National Liberation Movements 273 7.3 Rebel Groups, Unrecognized Insurgents, Armed Opposition Groups, Parties to an Internal Armed Conflict, etc. 275 7.4 Successful Insurrectional and other Movements 285 7.5 Practical Steps taken to Ensure Respect for Human Rights by Non-State Actors in Times of Armed Conflict 286 7.5.1 The Special Representative of the Secretary-General for Children and Armed Conflict 289 7.5.2 Geneva Call 291 The Commitment as a Step towards Recognizing the Human Rights Obligations of Non-State Actors 293 The Scope of the Obligations in the Commitment 295 Accountability and Monitoring 295 7.6 Private Security Firms and the Issue of Mercenaries 299 7.6.1 Recent Controversies Concerning the Use of Private Military/Security Firms 301 7.6.2 Accountability for Human Rights Abuses 303 7.6.3 The Incorporation of Human Rights Obligations into National Licensing Regimes 307 7.7 The Role of Humanitarian Organizations 310 7.7.1 The Question of Human Rights Denunciations by Humanitarian Organizations 310 7.7.2 The Human Rights Obligations of Humanitarian Organizations 312 8 Selected UN Human Rights Treaties 8.1 International Convention on the Elimination of All Forms of Racial Discrimination 8.2 Convention on the Rights of the Child 317 319 322 8.3 International Covenant on Economic, Social and Cultural Rights 8.4 International Covenant on Civil and Political Rights 8.5 Convention on the Elimination of All Forms of Discrimination against Women 8.6 Refugee Law 8.7 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 9 Regional Human Rights Bodies 9.1 The European Court of Human Rights 9.1.1 Article 1 Obligation to Secure Human Rights to Everyone within the Jurisdiction 9.1.2 Article 13 Right to an Effective Remedy 9.1.3 Article 2 Right to Life The Commission Finds that Non-State Actor Killings Come within the Scope of Article 2 The Court Develops Criteria for the Duty to Protect the Right to Life from Non-State Actors The Court Develops a Duty to Prevent, Investigate, and Ensure Accountability for Killings by Non-State Actors The Scope of the Human Rights Obligations of Non-State Actors with Regard to the Right to Life Summary Concerning Article 2 9.1.4 Article 3 Prohibition of Torture Protection of Children and the Prosecution of Rape Protection from Violent Non-State Actors Abroad 9.1.5 Article 4 Prohibition of Slavery and Forced Labour 9.1.6 Article 6 and the Right to Fair Trial 9.1.7 Article 7 Non-Retroactivity of Criminal Law for Individual Offences 9.1.8 Article 8 Right to Respect for Private and Family Life Protection from Violence to the Person and the Home Protection from Pollution Invasions of Privacy by Photographers and the Media 9.1.9 Article 9 Freedom of Thought, Conscience, and Religion 9.1.10 Article 10 Freedom of Expression and the Role of Article 17 9.1.11 Article 11 Rights to Assembly and Association Freedom of Assembly Freedom of Association 9.1.12 Other Rights under the Convention and its Protocols 9.1.13 Concluding Remarks on the European Convention 324 328 333 335 342 347 349 352 357 358 359 361 366 368 372 372 373 376 380 384 385 387 387 389 394 400 405 411 411 413 418 419 9.2 The Inter-American system 9.2.1 The Inter-American Commission on Human Rights and its Action with Regard to Acts of Violence by `Irregular Armed Groups' 9.2.2 Petitions to the Inter-American Commission and the Jurisprudence of the Court of Human Rights 9.2.3 The Advisory Opinion on the Rights of Migrant Workers 9.3 The African Approach under the OAU Human Rights Treaties 432 9.4 Final Remarks on the Approach of the Regional Bodies 10 National Legal Orders 421 421 424 429 436 437 10.1 Human Rights Complaints against Non-State Actors Acting in a Non-Governmental Way 441 10.1.1 The Alien Tort Claims Act in the United States 443 The US Courts' Application of the ATS Subsequent to the Supreme Court's Judgment in Sosa 447 10.1.2 The South African Constitution 450 The Constitutional Court's Approach in Du Plessis v De Klerk 451 The 1996 Constitution of the Republic of South Africa 457 10.2 Non-State Actors with a Public Function or State Nexus 460 10.2.1 The Human Rights Act 1998 in the United Kingdom 464 Parliamentary Debates and Ministerial Statements 464 Cases before the UK Courts 474 Policy Arguments Concerning the Public/Private Divide in the Human Rights Act 482 10.2.2 US State Action Cases before the Supreme Court 486 Racial Discrimination by Private Entities 486 Due Process before Private Decision-Makers 487 Freedom of Expression 488 Cruel and Unusual Punishment, Privatized Prisons, and the Rejection of Functional Tests 494 10.3 Interpretation of the Law in Conformity with Human Rights 499 10.3.1 Statutory Interpretation 500 Hong Kong 500 The United Kingdom 503 10.3.2 A Court Itself is Bound to Act in Conformity with Human Rights Law 506 10.3.3 The Court Develops the Common Law 512 The United Kingdom 512 South Africa 518 Canada 520 10.3.4 Reliance on Human Rights to Explain the Scope of Certain Values in National Law 521 10.4 Invoking Positive Obligations 10.5 Limits to Human Rights in the Private Sphere 10.5.1 Subsidiarity and Complementarity as Tools for Limiting the Human Rights Obligations of Non-State Actors 10.5.2 The Availability of Non-Human Rights Remedies and the Question of Cost 10.5.3 An Instinctive Understanding of the Limits of Non-State Actor Obligations through Emphasis on the Rights of the Non-State Actor 11 Dignity and Democracy 11.1 Dignity 11.1.1 Philosophical Foundations of Dignity 11.1.2 Protection of Dignity as an End in Itself 11.1.3 The Dignity Paradox 11.2 Democracy 11.2.1 The Democracy Paradox 11.3 An Example: Freedom of Religion and Corporal Punishment in Private Schools 11.4 Summary Regarding Dignity and Democracy 12 Complexity, Complicity, and Complementarity 12.1 Complexity 12.2 Complicity 12.3 Complementarity 12.4 Final Comments Bibliography Index 523 526 526 527 529 533 535 535 538 544 548 550 555 558 561 561 563 565 566 567 601

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