Table of Contents

Preface xxvii Acknowledgments xxxi

Chapter 1 1 The Concept of Human Rights From Morality to Law: The Abolition of Slavery

I. The Concept of Human Rights 2 II. The Movement to Abolish Slavery and the Slave Trade 3 A. Introduction 3 B. The Moral and Philosophical Evolution 5 David Brion Davis, The Problem of Slavery in the Age of Revolution 1770-1823 5 Roger Anstey, The Atlantic Slave Trade and British Abolition 1760-1810 6 C. Economic and Political Factors 7 Howard Temperley, The Ideology of Antislavery 7 James Walvin, The Public Campaign in England Against Slavery, 1787-1834 9 D. The Rhetoric of Abolition 10 Simon Bolivar, Message to the Congress of Bolivia (May 25, 1826) 10 Audrey A. Fisch, American Slaves in Victorian England: Abolitionist Politics in Popular Literature and Culture 11 Frederick Douglass, The Meaning of July Fourth for the Negro, Rochester, NY (July 5, 1852) 12 E. The Legal Evolution 13 Sommersett’s Case 13 Suzanne Miers, Slavery and the Slave Trade as International Issues 1890-1939 21 Comments and Questions 25 III. Theoretical and Critical Approaches to Human Rights 28 A. Natural Law 28 S. James Anaya, Indigenous Peoples in International Law 28 B. Legal Positivism 31 C. Structural/Functional Approaches 32 Patrick Macklem, The Sovereignty of Human Rights 32 D. Critical Legal Studies 34 E. Feminist Perspectives 34 Hilary Charlesworth, Feminist Methods in International Law 35 F. Cultural Relativism 36 Amartya Sen, Human Rights and Asian Values 37 Comments and Questions 41 IV. A Brief History of Human Rights in International Law and Institutions 43

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John P. Humphrey, The International Law of Human Rights in the Middle Twentieth Century 43 V. Final Comments and Questions 50

Chapter 2 53 Guaranteeing Human Rights By Treaty How Many Treaties and How Many Rights?

I. A Human Rights Treaty for Older Persons 55 II. The Protection of Human Rights Through Treaties 60 A. Why Treaties? 60 Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics 60 Darren C. Zook, Decolonizing Law: Identity Politics, Human Rights, and the United Nations 63 B. Human Rights Provisions in the UN Charter 65 1. The Content of the Charter 66 The United Nations and Human Rights 66 2. The Legal Obligations of UN Member States 68 Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) 69 Egon Schwelb, The International Court of Justice and the Human Rights Clauses of the Charter 69 Oscar Schachter, The Charter and the Constitution: The Human Rights Provisions in American Law 72 Note: US Recognition of the Legal Status of the Human Rights Clauses 75 Comments and Questions 77 C. UN Human Rights Law-Making 78 1. Completing the International Bill of Rights 80 2. Issue-Specific Human Rights Treaties 82 Note: Specialized Agencies 84 3. Quality Control 87 Stephen P. Marks, Emerging Human Rights: A New Generation for the 1980s? 87 A.H. Robertson, Human Rights in the World 88 Note: UN Action 90 UN General Assembly Res. 41/120 90 Comments and Questions 91 III. Are Human Rights Treaties Different from Other International Legal Norms? 92 A. Interpretation 92 Vienna Convention on the Law of Treaties 92 American Convention on Human Rights 93 Demir and Baykara v. Turkey 94 Comments and Questions 102 B. Reservations 103 Vienna Convention on the Law of Treaties 103 Note: US Reservations, Understandings, and Declarations to the Covenant on Civil and Political Rights 105 Table of Contents xi

International Covenant on Civil and Political Rights: The Administration’s Proposed Reservations, Understandings, and Declarations in International Covenant on Civil and Political Rights 106 Human Rights Committee, Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, or in Relation to Declarations Under Article 41 of the Covenant 109 Human Rights Committee, Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Comments of the Committee on the Report of the United States of America 114 International Law Commission, Annual Report (1997) 115 International Law Commission, Annual Report (2011) 118 C. Termination of Treaties 121 Human Rights Committee, Continuity of Obligations 122 D. Human Rights Treaties and Regime Conflict 123 Comments and Questions 124 IV. Final Comments and Questions 125

Chapter 3 127 The Development of Human Rights Norms Through Non-Binding Instruments How and Why Do New International Human Rights Norms Emerge Other Than by Treaty?

I. Introduction: The Role of “Soft Law” in Human Rights Law-Making 128 Dinah Shelton, Commentary and Conclusions 129 II. The Universal Declaration of Human Rights 134 A. The Making of the Universal Declaration 135 John P. Humphrey, The Universal Declaration of Human Rights: Its History, Impact, and Juridical Character 135 B. The Legal Status of the Declaration 138 1. The Historical Perspective 138 Egon Schwelb, The Influence of the Universal Declaration of Human Rights on International and National Law 138 Note: Customary International Law 142 2. Subsequent Developments in the Legal Status of the Declaration 144 Restatement (Third) of the Foreign Relations Law of the United States §702 146 International Law Association, Committee on the Enforcement of Human Rights Law, Final Report on the Status of the Universal Declaration of Human Rights in National and International Law 147 Note: Other United Nations and Regional Human Rights Declarations 151 Comments and Questions 153 III. The Emergence of New Human Rights Norms: The Rights of Indigenous Peoples and Maya Land Claims in Southern Belize 154 A. The Rights of Indigenous Peoples 154 xii Table of Contents

B. The Adjudication of Maya Land Claims by the Inter-American Commission on Human Rights 159 Note: The Awas Tingni and Dann Cases 159 Maya Indigenous Communities of the Toledo District of Belize 162 Comments and Questions 169 Note: The Duty to Consult and “Free, Prior, and Informed Consent” 172 IV. Norm Building in Related Areas 176 A. Minorities 176 Hurst Hannum, The Rights of Persons Belonging to Minorities 176 Human Rights Committee, General Comment No. 23 (50) (Art. 27) 183 B. Self-Determination 186 Committee on the Elimination of Racial Discrimination, Right to Self-Determination 188 Note: Self-Determination and Kosovo 189 Note: Indigenous Peoples, Minorities, and Self-Determination 190 Comments and Questions 193 V. Final Comments and Questions 194

Chapter 4 199 Human Rights in Extremis How Can Human Rights Be Protected in Times of Terrorism, Civil Strife, and Armed Conflict?

I. Introduction 202 George W. Bush, Address to a Joint Session of Congress and to the American People 202 Thomas M. Franck, Editorial Comment, Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror 203 II. Human Rights in Civil Strife and States of Emergency 205 Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During States of Emergency 206 Note: Monitoring States of Emergency 212 Human Rights Committee, States of Emergency (Article 4) 212 Habeas Corpus in Emergency Situations 213 A. and Others v. United Kingdom 216 Note: Limitation Clauses 222 Note: Humanitarian Law as a Limitation on the Right of Derogation: Civil Strife and Internal Armed Conflict Contrasted 223 Comments and Questions 224 III. The Traditional Law of War: International Armed Conflict 225 Note: Historical Roots of the Concern for Human Rights in the Law of War 225 G.I.A.D. Draper, Human Rights and the Law of War 226 A. Protecting Combatants: The First Three 1949 Geneva Conventions 227 Third Geneva Convention Relative to the Treatment of Prisoners of War 227 B. Protecting Civilians: The Fourth Geneva Convention 230 Table of Contents xiii

Fourth Geneva Convention on the Protection of Civilian Persons in Time of War 230 C. Subsequent Developments: Protocol I 233 Protocol Additional to the Geneva Conventions of August 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) 233 IV. Expanding Traditional Protections: Internal Armed Conflicts 237 A. Common Article 3: Its Status and Content 237 Common Article 3 of the 1949 Geneva Conventions 237 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States) 238 B. Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts 240 Richard R. Baxter, Modernizing the Law of War 240 Note: UN Peacekeeping 241 Comments and Questions 242 V. Modern Warfare: Distinguishing Combatants from Civilians 242 Lieutenant Duffy’s Statement 243 Mark Bowden, Black Hawk Down: A Story of Modern War 245 Note: The First Gulf War 246 Note: Afghanistan and the Second Gulf (Iraq) War 247 Note: Syria 248 VI. The Intersection of International Human Rights Law and International Humanitarian Law 249 The Legality of the Threat or Use of Nuclear Weapons 249 Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) 250 Hassan v. United Kingdom 251 Silvia Borelli, Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the “War on Terror” 258 Laura M. Olson, Practical Challenges of Implementing the Complementarity Between International Humanitarian and Human Rights Law—Demonstrated by the Procedural Regulation of Internment in Non-International Armed Conflict 259 VII. The “War on Terror”: Emergency, Armed Conflict, or Business as Usual? 262 A. Detention and Trial of Suspected Terrorists and “Illegal Combatants”: Presidential Powers and Military Commissions 262 Memorandum from Assistant Attorney General Jay S. Bybee 263 Memorandum from the President 271 Hamdan v. Rumsfeld 273 Boumediene v. Bush 276 Harold Koh, The Obama Administration and International Law 280 Military Commissions Act of 2009 281 Fact Sheet: New Actions on Guantanamo and Detainee Policy 285 Cpt. Thomas B. Nachbar, Executive Branch Policy Meets International Law in the Evolution of the Domestic Law of Detention 287 Note: Guantánamo, the Prison That Would Not Die 291 B. Use of Force: Drones and Targeted Killings 292 Harold Koh, The Obama Administration and International Law 293 C. Renditions 296 Joan Fitzpatrick, Rendition and Transfer in the War Against Terrorism: Guantánamo and Beyond 296 xiv Table of Contents

Al Nashiri v. Poland 298 D. Terrorism and Human Rights in the United Nations 298 Comments and Questions 299 VIII. Torture and Terror: What Are the Limits in Seeking Information to Stop the Next Terrorist Attack? 301 Memorandum from Assistant Attorney General Jay S. Bybee 303 Note: Subsequent US Interrogation Policies 305 U.S. Army, Human Intelligence Collector Operations 306 Note: Should Torture Always Be Prohibited? 307 Comments and Questions 308 IX. International Crimes and Human Rights 309 A. Introduction 309 B. Ad Hoc Tribunals 310 C. The International Criminal Court 310 Global Rights? [A Debate Between A.C. Grayling and David Rieff] 311 D. Universal Jurisdiction 316 E. The “Piecemeal” Convention Approach Coupled with Domestic Enforcement 317 1. Slavery, Apartheid, Genocide, and Torture 317 2. Terrorism 318 3. Other Transnational Crimes 320 4. The Exercise of National Jurisdiction Under Domestic Law: Amnesties and Prosecutions 321 Diane Orentlicher, Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime 321 The Belfast Guidelines on Amnesty and Accountability 324 Comments and Questions 328 X. Final Comments and Questions 330

Chapter 5 335 Who Has Legal Obligations Under International Human Rights Law? Preventing and Responding to Acts of Violence Against Women

I. Violence Against Women as a Human Rights Violation 338 Committee on the Elimination of All Forms of Discrimination Against Women, Violence Against Women 339 Alice Edwards, Violence Against Women under International Human Rights Law 342 Report of the Special Rapporteur on Violence Against Women, Its Causes and Consequences, Rashida Manjoo 344 Note: Regional Treaty Obligations Regarding Violence Against Women 345 Comments and Questions 346 II. The General Obligations of States 348 A. “Positive” and “Negative” Obligations 348 Human Rights Committee, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant on Civil and Political Rights 348 Table of Contents xv

Committee on Economic, Social, and Cultural Rights, The Nature of States Parties Obligations (Art. 2, para. 1) 351 Velásquez Rodríguez v. Honduras 354 Aydin v. Turkey 359 Öneryildiz v. Turkey 364 González et al. (“Cotton Field”) v. Mexico 372 Opuz v. Turkey 379 Note: The United States and Positive Obligations Under International Human Rights Law: Jessica Lenahan (Gonzales) et al. v. United States 384 B. Balancing State Obligations to Protect with Individual Freedom and Autonomy 386 S.H. and Others v. Austria 387 Pretty v. United Kingdom 398 Note: When Does Life Begin? 400 Comments and Questions 401 III. Do Business Enterprises Have Human Rights Obligations? 404 A. Business Practices and Human Rights Violations 404 Corporations and Human Rights: A Survey of the Scope and Patterns of Alleged Corporate-Related Human Rights Abuse 404 B. Codes of Conduct and the Scope of Responsibility 406 The Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights 407 Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework 411 Report of the Special Rapporteur on the Rights of Indigenous Peoples, James Anaya 417 Note: Corporate Responsibility, Extractive Industries, and Indigenous Peoples in the Inter-American System 419 Inter-American Commission on Human Rights, Indigenous Peoples, Afro-descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities 420 Comments and Questions 423 IV. Do International Organizations Have Human Rights Obligations? 424 A. International Organizations and Legal Obligations 425 International Law Commission, Draft Articles on the Responsibility of International Organizations, with Commentaries (2011) 425 Kristina Daugirdas, How and Why International Law Binds International Organizations 428 B. Peacekeeping Operations 430 United Nations General Assembly, Report on Special Measures for Protection from Sexual Exploitation and Sexual Abuse 431 Agim Behrami and Bekir Behrami v. France; Ruzhdi Saramati v. France, Germany and Norway 434 Note: Haiti, Cholera, and UN Accountability 443 Comments and Questions 444 C. International Financial Institutions 445 World Bank, Environmental and Social Framework 446 Report of the United Nations Rapporteur on Extreme Poverty and Human Rights on the Human Rights Policy of the World Bank, Philip Alston 449 xvi Table of Contents

D. The World Trade Organization 454 Robert Howse and Makau Mutua, Protecting Human Rights in a Global Economy: Challenges for the World Trade Organization 454 Stephen Joseph Powell and Trisha Low, Beyond Labor Rights: Which Core Human Rights Must Regional Trade Agreements Protect? 457 Comments and Questions 459 V. Final Comments and Questions 460

Chapter 6 463 Domestic Enforcement Mechanisms Are States’ Courts Bound to Apply International Human Rights Norms?

I. Introduction: The Relationship Between International and Domestic Legal Systems 464 II. US Courts and the Rights of Juvenile Offenders 466 A. Finding the Parameters of Domestic Legal Protections in Light of International Norms 466 Roper v. Simmons 466 Graham v. Florida 473 Harold Hongju Koh, Why Do Nations Obey International Law? 475 Ruth Bader Ginsburg, “A Decent Respect to the Opinions of [Human]kind”: The Value of a Comparative Perspective in Constitutional Adjudication 477 Comments and Questions 478 B. The Application of Treaty Provisions by Domestic Courts 480 1. Judicial Treatment of Reservations to Multilateral Treaties 481 Domingues v. Nevada 481 Curtis A. Bradley, The Juvenile Death Penalty and International Law 485 Comments and Questions 487 2. The Doctrine of (Non) Self-Executing Treaties 488 Note: The US Declaration of Non-Self-Execution 488 Note: The Sei Fujii Case 491 Sei Fujii v. State 493 Medellin v. Texas 495 Oona A. Hathaway, Sabrina McElroy, and Sara Aranchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts 501 Comments and Questions 503 C. The Judicial Application of Customary International Law 507 Joan Fitzpatrick, The Role of Domestic Courts in Enforcing International Human Rights Law 508 Filartiga v. Peña-Irala 509 Sosa v. Alvarez-Machain 515 Kiobel v. Royal Dutch Petroleum Co. 522 Ralph Steinhardt, Kiobel and the Multiple Futures of Corporate Liability for Human Rights Violations 526 Comments and Questions 528 III. The Justiciability of Economic, Social, and Cultural Rights 530 Table of Contents xvii

Committee on Economic, Cultural, and Social Rights: The Right to the Highest Attainable Standard of Health 531 Minister of Health et al. v. Treatment Action Campaign et al. 535 National Federation of Independent Business v. Sebelius 547 Comments and Questions 550 IV. The Application and Interpretation of International Human Rights Law in Domestic Judicial and Quasi-Judicial Decisions 552 Gerald Neuman, Subsidiarity 552 Dia Anagnostou and Alina Mungiu-Pippidi, Domestic Implementation of Human Rights Judgments in Europe: Legal Infrastructure and Government Effectiveness Matter 554 Interim Resolution, Committee of Ministers, Council of Europe, Hirst and Three Other Cases Against the United Kingdom, December 9, 2015 558 Brussels Declaration, High-Level Conference on the “Implementation of the European Convention on Human Rights, Our Shared Responsibility” 559 Eduardo Ferrer McGregor, Conventionality Control: The New Doctrine of the Inter-American Court of Human Rights 561 Almonacid-Arellano et al. v. Chile 563 Comments and Questions 564 V. Final Comments and Questions 566

Chapter 7 567 The Problem of Fact-Finding and Evidence How Are Human Rights Violations Investigated?

I. The Challenge: To Find Out What Is Really Happening 568 II. Fact-Finding by Nongovernmental Organizations 569 A. Allegations of Judicial Persecution of Mapuche Leaders in Chile 569 International Federation for Human Rights, Chile — The Mapuche People: Between Oblivion and Exclusion 569 B. Issues of Methodology and Credibility 576 Diane Orentlicher, Bearing Witness: The Art and Science of Human Rights Fact-Finding 576 Hurst Hannum, Fact-Finding by Non-Governmental Human Rights Organizations 580 Andrew F. Smith, Incubator Baby Incident 581 Guidelines on International Fact-Finding Visits and Reports (The Lund-London Guidelines) 585 Comments and Questions 587 III. Fact-Finding by the UN and Other Intergovernmental Organizations 589 A. The Mapuche Revisited 589 Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Mr. Rodolfo Stavenhagen — Addendum: Mission to Chile 589 Government of Chile, Report I — Recommendations of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Chileans 594 B. Multiple Mechanisms of Fact-Finding and Some of the Challenges 596 xviii Table of Contents

Office of the High Commissioner for Human Rights, Training Manual on Human Rights Monitoring 598 Office of the High Commissioner for Human Rights, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice 600 C. Politics and Fact-Finding: The Gaza Conflict 604 Report of the United Nations Fact-Finding Mission on the Gaza Conflict 605 Israel Ministry of Foreign Affairs, Initial Response to Report of the Fact-Finding Mission on Gaza Established Pursuant to Resolution S-9/1 of the Human Rights Council 608 Richard Falk, Why the Goldstone Report Matters 610 The Economist, Goldstone on Gaza: A UN Report on the Fighting in Gaza Is Deeply Flawed. But That Should Not Stop Israel Holding Itself and Its Soldiers to the Highest Standards 613 Comments and Questions 614 IV. Fact-Finding by Judicial and Quasi-Judicial Bodies 617 A. Gathering the Facts 617 B. Evaluating the Facts 619 1. Admissibility and Evaluation of Evidence 619 Mayagna (Sumo) Awas Tingni Community v. Nicaragua 620 2. The Burden and Standard of Proof 622 Bertrand G. Ramcharan, Evidence 623 Velásquez Rodríguez v. Honduras 625 Kawas-Fernández v. Honduras 631 Bleier v. Uruguay 634 Sevtap Veznedarogˇlu v. Turkey 637 Comments and Questions 643 V. Final Comments and Questions 645

Chapter 8 647 UN Human Rights Mechanisms How Are Human Rights Implemented at the Global Level?

I. Introduction 648 II. Monitoring Compliance with UN Human Rights Treaties 649 A. Review of Periodic Reports 650 Report on the Working Methods of the Human Rights Treaty Bodies Relating to the State Party Reporting Process 650 Human Rights Committee, Concluding Observations on the Fourth Periodic Report of the United States of America 661 Report on Indicators for Promoting and Monitoring the Implementation of Human Rights 665 Congressional Record, S 8400-8401 670 Comments and Questions 671 B. Individual Communications 672 Strakhov v. Uzbekistan and Fayzulaev v. Uzbekistan 672 Comments and Questions 679 C. Interstate Complaints 681 Table of Contents xix

D. General Comments 682 E. Strengthening the Treaty System 683 General Assembly Res. 68/268, Strengthening and Enhancing the Effective Functioning of the Human Rights Treaty Body System 683 Report of the Secretary-General, Status of the Human Rights Treaty Body System 689 III. UN Charter–Based Procedures 691 A. The Universal Periodic Review 693 National Report Submitted in Accordance with Paragraph 5 of the Annex to Human Rights Council Resolution 16/21, United States of America 694 Compilation [of Information from Treaty Bodies and Special Procedures] Prepared by the Office of the United Nations High Commissioner for Human Rights in Accordance with Paragraph 15 (B) of the Annex to Human Rights Council Resolution 5/1 and Paragraph 5 of the Annex to Council Resolution 16/21, United States of America 699 Summary [of Stakeholder Comments] Prepared by the Office of the United Nations High Commissioner for Human Rights in Accordance with Paragraph 15 (C) of the Annex to Human Rights Council Resolution 5/1 and Paragraph 5 of the Annex to Council Resolution 16/21, United States of America 701 Report of the Working Group on the Universal Periodic Review, United States of America 704 Views on Conclusions and/or Recommendations, Voluntary Commitments and Replies Presented by the State Under Review [United States of America] 706 Comments and Questions 710 B. Country-Specific Debates and Resolutions 711 C. The Confidential Complaint Procedure 712 Human Rights Council Resolution 5/1, Institution-Building of the United Nations Human Rights Council 713 Comments and Questions 717 D. The “Special Procedures” 718 Manual of Operations of the Special Procedures of the Human Rights Council 720 Report of the Special Rapporteur on Independence of Judges and Lawyers 725 Canada: The TransCanada Oil Pipeline Operation Carried Out in the Traditional Lands of the Lubicon Lake Nation and the Lubicon Land Claim 727 Comments and Questions 731 Note: Other Charter-Based Mechanisms 733 IV. Final Comments and Questions 735

Chapter 9 739 The European System for the Protection of Human Rights Rights and Duties at the Regional Level

I. Religious and Cultural Discord in Europe 740 xx Table of Contents

II. The European Institutional and Normative Framework 742 III. Taking a Complaint to the European Court 745 A. Jurisdiction and Admissibility 745 Ben El Mahi and Others v. Denmark 746 S.A.S. v. France 750 Korolev v. Russia 756 Comments and Questions 760 B. Interpreting Substantive Rights in the European Convention 763 Lautsi v. Italy 763 Comments and Questions 776 IV. Article 9: Freedom of Religion and Belief 777 A. Religion and Speech 777 Kokkinakis v. Greece 777 Otto-Preminger-Institut v. Austria 783 Comments and Questions 790 B. Religious Compulsion and Religious Exemptions 793 S.A.S. v. France 794 Comments and Questions 811 V. Remedies and Enforcement 812 A. Remedies 812 Varnava and Others v. Turkey 812 Comments and Questions 816 Resolution (2004) 3, on Judgments Revealing an Underlying Systemic Problem 817 B. Montoring Compliance: The Committee of Ministers 817 Burdov v. Russia (No. 2) 818 Comments and Questions 819 VI. Other Council of Europe Institutions and Instruments 819 A. The European Social Charter 819 European Roma Rights Centre (ERRC) v. Ireland 821 Comments and Questions 832 B. Other Human Rights Treaties 832 VII. The European Union 833 Commission and Others v. Kadi 835 Bundesrepublik Deutschland v. Y and Z 845 Note: Organization for Security and Cooperation in Europe (OSCE) 854 Comments and Questions 855 VIII. Final Comments and Questions 856

Chapter 10 859 Human Rights in the Americas Responding to Disappearances: The Case of Argentina and Its Aftermath

I. Forced Disappearances in Argentina 860 Report on the Situation of Human Rights in Argentina 861 II. Evolution of the Human Rights System in the Americas 862 Inter-American Commission on Human Rights, Annual Report 2015 863 Table of Contents xxi

Cecilia Medina, The Inter-American Commission on Human Rights and the Inter-American Court of Human Rights: Reflections on a Joint Venture 865 Monica Pinto, The Role of the Inter-American Commission and the Court of Human Rights in the Protection of Human Rights: Achievements and Contemporary Challenges 868 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights 870 Note: Advisory Opinions of the Court 875 Comments and Questions 877 III. The Inter-American System in Practice 877 A. Country Reports 877 Report on the Situation of Human Rights in Argentina 878 Thomas Buergenthal, Robert Norris, and Dinah Shelton, Protecting Human Rights in the Americas: Selected Problems 889 Report on the Situation of Human Rights in Argentina 891 Ayotzinapa Report: Research and Initial Conclusions of the Disappearances and Homicides of the Normalistas from Ayotzinapa 894 Note: Forced Disappearances and the Inter-American System of Human Rights 897 Comments and Questions 900 B. Individual Petitions 900 1. Precautionary and Provisional Measures 900 Reggiardo Tolosa Case, Order of the President of the Inter-American Court of Human Rights of November 19, 1993 901 2. Admissibility and Merits 905 Res. No. 31/78, Case 2553 (Argentina), Decision of Nov. 18, 1978 905 Note: The Concept of Continuing Violations 908 Blake v. Guatemala (Preliminary Objections) 909 3. Friendly Settlement 911 Report No. 160/10, Petition 242-03, Inocencia Luca de Pegoraro et al. (Argentina) 911 4. Procedural Aspects 914 Dinah Shelton, The Inter-American Human Rights System 914 Comments and Questions 917 C. Proceedings Before the Inter-American Court of Human Rights 917 Rodríguez Vera et al. (The Disappeared from the Palace of Justice) v. Colombia 919 Claude Reyes et al. v. Chile 922 Comments and Questions 929 D. Compliance with the Decisions of the Inter-American System of Human Rights 929 Alexandra Huneeus, Courts Resisting Courts: Lessons from the Inter-American Court’s Struggle to Enforce Human Rights 930 Comments and Questions 934 IV. Democratic Governance and the Inter-American System 934 OAS Suspends Membership of Honduras 936 IACHR Expresses Concern over the Ousting of the Paraguayan President 938 xxii Table of Contents

Report 98/03, Case 11.204, Statehood Solidarity Committee (United States) 939 YATAMA v. Nicaragua 945 Note: Human Rights in Argentina Today 949 Comments and Questions 950 V. Final Comment 953

Chapter 11 955 Other Regional Systems Is There a Right to a Safe and Healthy Environment?

I. The State of the Global Environment and Human Well-Being 956 UNEP, Summary of the Sixth Global Environment Outlook GEO-6 956 Comments and Questions 962 Dinah Shelton, Human Rights, Environmental Rights, and the Right to Environment 963 Commission on Human Rights, Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Wastes on the Enjoyment of Human Rights 965 II. The Evolution of a Right to Environmental Quality 965 A. References in Treaties 965 B. Resolutions and Studies 967 C. Jurisprudence 968 D. Domestic Laws 969 III. The African Human Rights System 970 Christof Heyns, The African Human Rights System: The African Charter 971 SERAC v. Nigeria 976 Centre for Minority Rights Development v. Kenya 985 Note: African Sub-Regional Courts 999 SERAP v. Nigeria 1001 Comments and Questions 1009 Konaté v. Burkina Faso 1011 Comments and Questions 1023 IV. The Association of South-East Asian Nations 1024 ABA-ROLI, The ASEAN Human Rights Declaration: A Legal Analysis 1026 V. The League of Arab States 1031 Mohammed Amin Al-Midani, Human Rights Bodies in the League of Arab States 1031 Statute of the Arab Court of Human Rights 1037 International Commission of Jurists, Arab League’s Human Rights Court Will Not Bring Justice to Victims of Violations 1043 Note: SAARC and the OIC 1044 VI. Final Comments and Questions 1046 Table of Contents xxiii

Chapter 12 1049 Coercing Compliance with Human Rights Norms: Sanctions and Armed Intervention Can the International Community Prevent Human Rights Violations by Threatening or Using Force?

I. Disaster in Darfur 1050 Mission to the Sudan: The Darfur Crisis 1052 II. Economic Sanctions 1055 A. The League of Nations 1055 B. The UN Charter and Southern Rhodesia 1056 Myres S. McDougal and W. Michael Reisman, Rhodesia and the United Nations: The Lawfulness of International Concern 1058 Dean Acheson, The Arrogance of International Lawyers 1061 C. Modern UN Sanctions 1062 Security Council Resolution 661 1063 Committee on Economic, Social, and Cultural Rights, The Relationship Between Economic Sanctions and Respect for Economic, Social, and Cultural Rights 1065 UN Sub-Commission on the Promotion and Protection of Human Rights, The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights 1066 D. Smart Sanctions 1073 August Reinisch, Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions 1073 E. Regional or Unilateral Sanctions 1074 1. Regional Sanctions 1074 2. Unilateral Sanctions 1076 Human Rights Council, The Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights 1077 Kenneth Roth, Executive Director of Human Rights Watch, The Role of U.S. Sanctions Policies in Promoting Human Rights 1080 F. US Implementation of International Sanctions 1082 Legislative Reference Service, Library of Congress, The United Nations Participation Act Sections Relating to Economic and Military Action 1083 Diggs v. Shultz 1085 Note: Think Globally, Act Locally—Local and State-Sponsored Sanctions 1086 Comments and Questions 1087 III. Armed Intervention 1088 A. Intervention by the United Nations 1088 1. Somalia 1089 Sean D. Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order 1089 2. Haiti 1092 Security Council Resolution 940 1093 Security Council Resolution 1542 1095 3. Libya 1097 Security Council Resolution 1973 1098 xxiv Table of Contents

Report of the International Commission of Inquiry to Investigate All Alleged Violations of International Human Rights Law in the Libyan Arab Jamahiriya 1099 Alan J. Kuperman, A Model Humanitarian Intervention?: Reassessing NATO’s Libya Campaign 1106 4. The Consequences of Nonintervention: Rwanda 1109 Report of the Independent Inquiry into the Actions of the United Nations During the 1994 Genocide in Rwanda 1110 Comments and Questions 1116 B. The Consequences of Unilateral or Regional Intervention: Kosovo 1117 Independent International Commission on Kosovo, Kosovo Report 1119 Note: The Second Gulf War 1124 C. Proposed Criteria for Armed Intervention 1126 The Responsibility to Protect 1126 Comments and Questions 1134 IV. The International Response to Darfur 1137 Acting High Commissioner for Human Rights Bertrand Ramcharan, Statement to the UN Security Council 1138 The Crisis in Darfur, Statement of Secretary of State Colin Powell Before the Senate Foreign Relations Committee 1141 Transcript of the Candidates’ First Debate in the 2004 Presidential Campaign 1142 Security Council Resolution 2296 1146 Comments and Questions 1148 V. Afghanistan 1149 VI. Final Comments and Questions 1149

Chapter 13 1155 Human Rights and Foreign Policy The United States–China Relationship

I. Human Rights in Foreign Policy 1157 Alison Brysk, Global Good Samaritans: Human Rights as Foreign Policy 1157 II. Human Rights and U.S. Foreign Policy 1160 Kenneth Cmiel, The Emergence of Human Rights Politics in the United States 1161 A. Congressional Action: Laying the Foundation 1164 Richard B. Lillich, U.S. Foreign Policy, Human Rights, and Foreign Trade and Investment 1164 B. Presidential Human Rights Policies and Their Critics, 1975-2017 1165 1. Almost at the Beginning: President Carter 1165 Cyrus R. Vance, Human Rights and Foreign Policy 1166 Henry A. Kissinger, Continuity and Change in American Foreign Policy 1169 Table of Contents xxv

United States Institute for Peace, U.S. Human Rights Policy: A 20-Year Assessment 1172 2. Selective Rights, Selective Application: The Reagan Administration 1174 International Commission of Jurists, Human Rights and U.S. Foreign Policy 1174 Art Buchwald, Moderate Repression 1177 United States Institute of Peace, Human Rights Policy: A 20-Year Assessment 1178 Note: Key Differences in Human Rights Policy Under Carter and Reagan 1179 3. Searching for a Policy: Bush, Clinton, and Bush 1180 (1) George H.W. Bush 1180 (2) Bill Clinton 1182 Timothy E. Wirth, Counselor, U.S. Department of State, Human Rights Policy Under the New Administration 1182 John Shattuck, Human Rights and Democracy in Asia 1183 Mary McGrory, Human Rights Retreat 1186 (3) George W. Bush 1188 Assistant Secretary of State for Democracy, Human Rights, and Labor Lorne W. Craner, Supporting Human Rights and Democracy: The U.S. Record, 2003-2004 1188 (4) Consolidation and Criticism: Barack Obama 1190 U.S. Human Rights Commitments and Pledges 1190 Bret Stephens, Does Obama Believe in Human Rights? 1193 Hillary Rodham Clinton, The Human Rights Agenda for the 21st Century 1194 Remarks by the President on the Middle East and North Africa 1199 5. Into the Unknown: Donald J. Trump 1201 6. The Future 1202 Michael Ignatieff, Is the Human Rights Era Ending? 1203 Comments and Questions 1204 C. U.S. Foreign Policy, Human Rights, and Relations with China 1205 1. The United States Evaluates the World: The State Department’s Annual Reports on Human Rights 1206 Country Reports on Human Rights Practices for 2015 [Report on China, Including Tibet, Hong Kong, and Macao] 1206 Human Rights Record of the United States in 2015 1211 2. Multilateral Diplomacy at the United Nations 1217 3. Linkages and Conditionality: Using U.S. Economic and Political Power 1218 President’s News Conference, May 26, 1994 1218 Director of the State Department’s Policy Planning Staff, Richard N. Haass, China and the Future of U.S.–China Relations 1220 Joint Press Statement by President Obama and President Hu of China 1222 Sophie Richardson, Is Talking to Beijing About Human Rights a Waste of Time? Why Obama’s New Meetings with China Should Only Be the Beginning 1225 Sophie Richardson, It’s Time to Rethink the World’s Approach to Human Rights in China 1226 Comments and Questions 1227 xxvi Table of Contents

III. Human Rights Policies of Other States 1228 A. The European Union 1228 European Union, Guidelines on Human Rights Dialogues with Third Countries — Update 1229 B. Japan 1234 Japan, Ministry of Foreign Affairs, Japan’s Human Rights Commitments and Pledges (Candidature for HRC Membership 2017-2019) 1234 Yozo Yokota and Chiyuki Aoi, Japan’s Foreign Policy Towards Human Rights: Uncertain Changes 1236 Japan, Ministry of Foreign Affairs, Development Cooperation Charter 1243 C. Organization of Islamic Cooperation (OIC) 1246 Comments and Questions 1246 IV. Final Comments and Questions 1247

Index 1253