Human Rights Obligations of Non-state Actors

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ISBN: 9780198298151 | 0198298153
Cover: Hardcover
Copyright: 4/27/2006

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The threats to human rights posed by non-state actors are of increasing concern. Multinational corporations and the activities of international organizations, such as the United Nations, NATO, and the European Union, are increasingly examined with recourse to a human rights lens. This book presents an approach to human rights that goes beyond the traditional focus on states and argues that non-state actors have human rights obligations. It also addresses some of the ways in which non-state actors can be held accountable for their actions.

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

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