Gibney Mark(Editor) - Litigating transnational human rights obligations: alternative judgments

Litigating Transnational Human Rights Obligations

Human rights have traditionally been framed in a vertical perspective with the duties of States confined to their own citizens or residents. Obligations beyond this territorial space have been viewed as either being absent or minimalistic at best. However, the territorial paradigm has now been seriously challenged in recent years in part because of the increasing awareness of the ability of States and other actors to impact human rights far from home both positively and negatively. In response to this awareness various legal principles have come into existence setting out some transnational human rights obligations of varying degrees. However, notwithstanding these initiatives, judicial institutions and adjudicating bodies continue to show an enormous hesitancy in moving beyond a territorial reading of international human rights law.

This book addresses the issue in an innovative and challenging way by crafting legally sound hypothetical judgments from a number of adjudicatory fora. The judgments are based on real world situations where extraterritorial or transnational issues have emerged, and draw on existing international human rights law, albeit a progressive interpretation of this law. The book shows that there are a number of judicial and quasi-judicial systems where transnational human rights claims can, and should be enforced. These include: the World Trade Organization; the International Court of Justice; the regional human rights monitoring bodies; domestic courts; and the UN treaty bodies. Each hypothetical judgment is accompanied by detailed commentary placing it in context in order to show how international human rights law can address issues of a transnational character.

The book will be of interest to human rights scholars and lawyers, practitioners, activists and aid officials.

Mark Gibney is the Belk Distinguished Professor at University of North Carolina Asheville. Since 1984, Gibney has directed the Political Terror Scale (PTS), which measures levels of physical integrity violations in more than 185 countries (politicalterrorscale.org).

Wouter Vandenhole holds the UNICEF Chair in Childrens Rights at the Faculty of Law of the University of Antwerp (Belgium) and is the Co-Director of the Law and Development Research Group.

Routledge Research in Human Rights Law

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The Case of Pakistan

Khurshid Iqbal

Global Health and Human Rights

Legal and Philosophical Perspectives

John Harrington and Maria Stuttaford

The Right to Religious Freedom in International Law

Between Group Rights and Individual Rights

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Emerging Areas of Human Rights in the 21st Century

The Role of the Universal Declaration of Human Rights

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The Human Right to Water and its Application in the Occupied Palestinian Territories

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The Effectiveness of International Human Rights Law

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Human Rights in the Asia-Pacific Region

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The Positive Obligations of the State under the European Convention of Human Rights

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Vindicating Socio-Economic Rights

International Standards and Comparative Experiences

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The EU as a Global Player in Human Rights?

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Regulating Corporate Human Rights Violations

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The UN Committee on Economic, Social and Cultural Rights

The Law, Process and Practice

Marco Odello and Francesco Seatzu

State Security Regimes and the Right to Freedom of Religion and Belief

Changes in Europe Since 2001

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The European Court of Human Rights in the Post-Cold War Era

Universality in Transition

James A. Sweeney

The United Nations Human Rights Council

A Critique and Early Assessment

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Children and International Human Rights Law

The Right of the Child to be Heard

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Litigating Transnational Human Rights Obligations

Alternative Judgments

Mark Gibney and Wouter Vandenhole

Forthcoming titles in this series include:

Jurisdiction, Immunity and Transnational Human Rights Litigation

Xiaodong Yang

Litigating Transnational Human Rights Obligations

Alternative Judgments

Edited by Mark Gibney and Wouter Vandenhole

The European Science Foundation (ESF) provides a platform for its Member Organisations to advance science and explore new directions for research at the European level. Established in 1974 as an independent non-governmental organisation, the ESF currently serves 78 Member Organisations across 30 countries.

First published 2014

by Routledge

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and by Routledge

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Routledge is an imprint of the Taylor & Francis Group, an informa business

2014 Mark Gibney and Wouter Vandenhole

The right of Mark Gibney and Wouter Vandenhole to be identified as editors of this work has been asserted by them in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers.

Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

Litigating transnational human rights obligations : alternative judgements / Mark Gibney and Wouter Vandenhole.

pages cm. (Routledge Research in Human Rights Law)

Includes bibliographical references and index.

ISBN 978-0-415-85811-3 (hbk) ISBN 978-0-203-79747-1 (ebk) 1. Human rights.

I. Vandenhole, Wouter. II. Title.

K3240.G533 2014

342.085dc23

2013020572

ISBN: 978-0-415-85811-3 (hbk)

ISBN: 978-0-203-79747-1 (ebk)

Typeset in ITC New Baskerville
by Cenveo Publisher Services

Contents

WOUTER VANDENHOLE AND MARK GIBNEY

PART I
International Economic Governance Bodies

CLAIRE BUGGENHOUDT

ALEXIA HERWIG

JOSS SAUNDERS

PART II
Global (Human Rights) Monitoring Bodies

GAMZE ERDEM TKELLI

RACHEL HAMMONDS AND GORIK OOMS