Chapter 1
International Human Rights Law and the Role of the Legal Professions: A General Introduction
Learning Objectives = 1
Questions = 1
1. Introduction = 2
2. Origin, Meaning and Scope of International Human Rights Law = 2
3. Business Corporations and Human Rights = 19
4. International Human Rights Law at the Domestic Level = 20
5. The Role of the Legal Professions in the Implementation of Human Rights = 25
6. Concluding Remarks = 25
Chapter 2
The Major Universal Human Rights Instruments and the Mechanisms for Their Implementation
Learning Objectives = 27
Questions = 27
1. Introduction = 28
2. The Major United Nations Human Rights Treaties and their Implementation = 31
3. Other Instruments Adopted by the United Nations General Assembly = 61
4. Instruments adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders = 67
5. United Nations Extra-Conventional Mechanisms for Human Rights Monitoring = 67
6. Concluding Remarks = 70
Chapter 3
The Major Regional Human Rights Instruments and the Mechanisms for Their Implementation
Learning Objectives = 71
Questions = 71
1. Introduction = 72
2. African Human Rights Treaties and their Implementation = 72
3. American Human Rights Treaties and their Implementation = 80
4. European Human Rights Treaties and Their Implementation = 95
5. Concluding Remarks = 111
Chapter 4
Independence and Impartiality of Judges, Prosecutors and Lawyers
Learning Objectives = 113
Questions = 113
Relevant Legal Instruments = 114
1. Introduction = 115
2. The Role of Judges, Prosecutors and Lawyers in Upholding the Rule of Law, Including Human Rights Standards = 115
3. Challenges to the Independence and Impartiality of the Legal Professions = 116
4. International Law and the Independence and Impartiality of the Judiciary = 117
5. International Law and the Independence of Prosecutors = 147
6. International Law and the Independence of Lawyers = 150
7. Concluding Remarks = 158
Chapter 5
Human Rights and Arrest, Pre-trial Detention and Administrative Detention = 159
Learning Objectives = 159
Questions = 159
Relevant Legal Instruments = 160
1. Introduction = 161
2. Arrests and Detention without Reasonable Cause: a Persistent Problem = 161
3. The Right to Liberty and Security of the Person: Field of Applicability of the Legal Protection = 162
4. Lawful Arrests and Detentions = 163
5. The Right to Trial within a Reasonable Time or to Release pending Trial = 190
6. The Right to Have the Lawfulness of the Detention Decided Speedily or Without Delay by a Court = 197
7. The Right of Access to and Assistance of a Lawyer = 208
8. The Right to Compensation in the Event of Unlawful Deprivation of Liberty = 209
9. Incommunicado Detention = 210
10. Concluding Remarks = 211
Chapter 6
The Right to a Fair Trial
Part I . From Investigation to Trial = 213
Learning Objectives = 213
Questions = 213
Relevant Legal Instruments = 214
1. Introduction = 215
2. The Effective Protection of the Right to a Fair Trial:
A Global Challenge = 215
3. The Legal Texts = 216
4. The Right to Equality before the Law and Equal Treatment by the Law = 217
5. The Right to be Presumed Innocent: the Overall Guarantee from Suspicion to Conviction or Acquittal = 219
6. Human Rights during Criminal Investigations = 223
7. Concluding Remarks = 248
Chapter 7
The Right to a Fair Trial:
Part II . From Trial to Final Judgement = 251
Learning Objectives = 251
Questions = 251
Relevant Legal Instruments = 252
1. Introduction = 253
2. The Legal Provisions = 253
3. Human Rights during Trial = 253
4. Limits on Punishment = 301
5. The Right of Appeal = 305
6. The Right to Compensation in the Event of a Miscarriage of Justice = 309
7. The Right to a Fair Trial and Special Tribunals = 310
8. The Right to a Fair Trial in Public Emergencies = 311
9. Concluding Remarks = 313
Chapter 8
International Legal Standards for the Protection of Persons Deprived of Their Liberty = 315
Learning Objectives = 315
Questions = 315
Relevant Legal Instruments = 316
1. Introduction = 317
2. The Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment = 318
3. Legal Requirements as to Places of Detention and Registration of Detainees and Prisoners = 334
4. Conditions of Detention and Imprisonment = 337
5. Contacts with the Outside World = 356
6. Inspection of Places of Detention and Complaints Procedures = 365
7. The Role of Judges, Prosecutors and Lawyers in Preventing and Remedying Unlawful Treatment of Persons Deprived of their Liberty = 369
8. Concluding Remarks = 370
Chapter 9
The Use of Non-Custodial Measures in the Administration of Justice = 371
Learning Objectives = 371
Questions = 371
Relevant Legal Instruments = 372
1. Introduction = 373
2. Terminology = 374
3. General Principles Relating to Non-custodial Measures = 375
4. Non-custodial Options at the Different Stages of the Judicial Process = 384
5. Implementation of Non-custodial Measures = 389
6. The Role of Judges, Prosecutors and Lawyers in Choosing Alternatives to Imprisonment = 395
7. Concluding Remarks = 396
Chapter 10
The Rights of the Child in the Administration of Justice = 397
Learning Objectives = 397
Questions = 397
Relevant Legal Instruments = 398
1. Introduction = 399
2. The Administration of Justice and Children: Persistent Concerns = 400
3. The Definition of “Child” = 401
4. The Rights of the Child in the Administration of Justice: Some Basic Principles = 404
5. The Aims of Juvenile Justice = 408
6. The Duty to Create a Juvenile Justice System = 411
7. The Accused Child and the Administration of Justice = 411
8. The Child and Deprivation of Liberty = 420
9. The Rights of the Child and Penal Sanctions = 429
10. The Accused Child and the Question of Diversion = 430
11. The Child as Victim or Witness in Judicial Proceedings = 433
12. The Child and His or Her Parents: When Separation May be Justified = 436
13. The Rights of the Child and Adoption Proceedings = 439
14. The Role of Judges, Prosecutors and Lawyers in Guaranteeing the Rights of the Child in the Course of the Administration of Justice = 442
15. Concluding Remarks = 443
Chapter 11
Women’s Rights in the Administration of Justice = 445
Learning Objectives = 445
Questions = 445
Relevant Legal Instruments = 446
1. Introduction = 447
2. Women’s Right to Legal Personality = 449
3. Women’s Right to Equality Before the Law and Equal Protection of the Law = 450
4. Women’s Right to Respect for their Life and their Physical and Mental Integrity = 458
5. Women’s Right to Freedom from Slavery, the Slave Trade, Forced and Compulsory Labour, and Trafficking = 478
6. The Right to Equality in respect of Marriage = 484
7. The Equal Right to Legal Capacity in Civil Matters = 502
8. The Right to Equal Participation in Public Affairs, including Elections = 505
9. Women’s Right to Equal Enjoyment of Other Human Rights = 511
10. Women’s Right to an Effective Remedy, including the Right of Access to the Courts and Due Process of Law = 516
11. The Role of Judges, Prosecutors and Lawyers in Ensuring Protection of the Rights of Women = 519
12. Concluding Remarks = 520
Chapter 12
Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly = 521
Learning Objectives = 521
Questions = 521
Relevant Legal Instruments = 522
1. Introduction = 523
2. The Right to Freedom of Thought, Conscience and Religion = 524
3. The Right to Freedom of Opinion and Expression = 546
4. The Rights to Freedom of Association and Assembly = 597
5. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly = 629
6. Concluding Remarks = 630
Chapter 13
The Right to Equality and Non-Discrimination in the Administration of Justice = 631
Learning Objectives = 631
Questions = 631
Relevant Legal Instruments = 632
1. Introduction = 633
2. Selected Universal Legal Provisions Guaranteeing the Right to Equality before the Law and the Right to Non-discrimination = 636
3. Selected Regional Legal Provisions Guaranteeing the Right to Equality before the Law and the Right to Non-discrimination = 643
4. The Prohibition of Discrimination and Public Emergencies = 649
5. The General Meaning of Equality and Non-Discrimination = 651
6. Selected International Case Law and Legal Comments on the Right to Equality and the Prohibition of Discrimination = 656
7. Concluding Remarks = 678
Chapter 14
The Role of the Courts in Protecting Economic, Social and Cultural Rights = 681
Learning Objectives = 681
Questions = 681
Relevant Legal Instruments = 682
1. Introduction = 683
2. History Revisited: Why are there Two International Covenants on Human Rights? = 683
3. Interdependence and Indivisibility of Human Rights = 692
4. Universal and Regional Treaties for the Protection of Economic, Social and Cultural Rights: The Rights Guaranteed = 696
5. The Legal Obligations of States to Protect Economic, Social and Cultural Rights = 701
6. Economic, Social and Cultural Rights: Are they Justiciable? = 707
7. Case Study I: The Right to Adequate Housing = 710
8. Case Study II: The Right to Health = 730
9. The Role of Judges, Prosecutors and Lawyers in the Protection of Economic, Social and Cultural Rights: Lessons Learned = 748
10. Concluding Remarks = 748
Chapter 15
Protection and Redress for Victims of Crime and Human Rights Violations =749
Learning Objectives = 749
Questions = 749
Relevant Legal Instruments = 750
1. Introduction = 751
2. Protection and Redress for Victims of Crime = 753
3. Protection and Redress for Victims of Human Rights Violations = 773
4. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice for Victims of Crime and Human Rights Violations = 809
5. Concluding Remarks = 809
Chapter 16
The Administration of Justice During States of Emergency = 811
Learning Objectives = 811
Questions = 811
Relevant Legal Instruments = 812
1. Introduction = 813
2. The Notion of Public Emergency in International Human Rights Law = 815
3. Non-Derogable Rights and Obligations in International Human Rights Law = 831
4. Derogable Rights and the Condition of Strict Necessity = 852
5. The Condition of Consistency with Other International Legal Obligations = 877
6. The Condition of Non-Discrimination = 879
7. The Condition of International Notification = 881
8. The Role of Judges, Prosecutors and Lawyers in Ensuring the Effective Protection of Human Rights in Emergency Situations = 884
9. Concluding Remarks = 885
International Human Rights Law and the Role of the Legal Professions: A General Introduction
Learning Objectives = 1
Questions = 1
1. Introduction = 2
2. Origin, Meaning and Scope of International Human Rights Law = 2
3. Business Corporations and Human Rights = 19
4. International Human Rights Law at the Domestic Level = 20
5. The Role of the Legal Professions in the Implementation of Human Rights = 25
6. Concluding Remarks = 25
Chapter 2
The Major Universal Human Rights Instruments and the Mechanisms for Their Implementation
Learning Objectives = 27
Questions = 27
1. Introduction = 28
2. The Major United Nations Human Rights Treaties and their Implementation = 31
3. Other Instruments Adopted by the United Nations General Assembly = 61
4. Instruments adopted by the United Nations Congress on the Prevention of Crime and the Treatment of Offenders = 67
5. United Nations Extra-Conventional Mechanisms for Human Rights Monitoring = 67
6. Concluding Remarks = 70
Chapter 3
The Major Regional Human Rights Instruments and the Mechanisms for Their Implementation
Learning Objectives = 71
Questions = 71
1. Introduction = 72
2. African Human Rights Treaties and their Implementation = 72
3. American Human Rights Treaties and their Implementation = 80
4. European Human Rights Treaties and Their Implementation = 95
5. Concluding Remarks = 111
Chapter 4
Independence and Impartiality of Judges, Prosecutors and Lawyers
Learning Objectives = 113
Questions = 113
Relevant Legal Instruments = 114
1. Introduction = 115
2. The Role of Judges, Prosecutors and Lawyers in Upholding the Rule of Law, Including Human Rights Standards = 115
3. Challenges to the Independence and Impartiality of the Legal Professions = 116
4. International Law and the Independence and Impartiality of the Judiciary = 117
5. International Law and the Independence of Prosecutors = 147
6. International Law and the Independence of Lawyers = 150
7. Concluding Remarks = 158
Chapter 5
Human Rights and Arrest, Pre-trial Detention and Administrative Detention = 159
Learning Objectives = 159
Questions = 159
Relevant Legal Instruments = 160
1. Introduction = 161
2. Arrests and Detention without Reasonable Cause: a Persistent Problem = 161
3. The Right to Liberty and Security of the Person: Field of Applicability of the Legal Protection = 162
4. Lawful Arrests and Detentions = 163
5. The Right to Trial within a Reasonable Time or to Release pending Trial = 190
6. The Right to Have the Lawfulness of the Detention Decided Speedily or Without Delay by a Court = 197
7. The Right of Access to and Assistance of a Lawyer = 208
8. The Right to Compensation in the Event of Unlawful Deprivation of Liberty = 209
9. Incommunicado Detention = 210
10. Concluding Remarks = 211
Chapter 6
The Right to a Fair Trial
Part I . From Investigation to Trial = 213
Learning Objectives = 213
Questions = 213
Relevant Legal Instruments = 214
1. Introduction = 215
2. The Effective Protection of the Right to a Fair Trial:
A Global Challenge = 215
3. The Legal Texts = 216
4. The Right to Equality before the Law and Equal Treatment by the Law = 217
5. The Right to be Presumed Innocent: the Overall Guarantee from Suspicion to Conviction or Acquittal = 219
6. Human Rights during Criminal Investigations = 223
7. Concluding Remarks = 248
Chapter 7
The Right to a Fair Trial:
Part II . From Trial to Final Judgement = 251
Learning Objectives = 251
Questions = 251
Relevant Legal Instruments = 252
1. Introduction = 253
2. The Legal Provisions = 253
3. Human Rights during Trial = 253
4. Limits on Punishment = 301
5. The Right of Appeal = 305
6. The Right to Compensation in the Event of a Miscarriage of Justice = 309
7. The Right to a Fair Trial and Special Tribunals = 310
8. The Right to a Fair Trial in Public Emergencies = 311
9. Concluding Remarks = 313
Chapter 8
International Legal Standards for the Protection of Persons Deprived of Their Liberty = 315
Learning Objectives = 315
Questions = 315
Relevant Legal Instruments = 316
1. Introduction = 317
2. The Prohibition of Torture and Cruel, Inhuman or Degrading Treatment or Punishment = 318
3. Legal Requirements as to Places of Detention and Registration of Detainees and Prisoners = 334
4. Conditions of Detention and Imprisonment = 337
5. Contacts with the Outside World = 356
6. Inspection of Places of Detention and Complaints Procedures = 365
7. The Role of Judges, Prosecutors and Lawyers in Preventing and Remedying Unlawful Treatment of Persons Deprived of their Liberty = 369
8. Concluding Remarks = 370
Chapter 9
The Use of Non-Custodial Measures in the Administration of Justice = 371
Learning Objectives = 371
Questions = 371
Relevant Legal Instruments = 372
1. Introduction = 373
2. Terminology = 374
3. General Principles Relating to Non-custodial Measures = 375
4. Non-custodial Options at the Different Stages of the Judicial Process = 384
5. Implementation of Non-custodial Measures = 389
6. The Role of Judges, Prosecutors and Lawyers in Choosing Alternatives to Imprisonment = 395
7. Concluding Remarks = 396
Chapter 10
The Rights of the Child in the Administration of Justice = 397
Learning Objectives = 397
Questions = 397
Relevant Legal Instruments = 398
1. Introduction = 399
2. The Administration of Justice and Children: Persistent Concerns = 400
3. The Definition of “Child” = 401
4. The Rights of the Child in the Administration of Justice: Some Basic Principles = 404
5. The Aims of Juvenile Justice = 408
6. The Duty to Create a Juvenile Justice System = 411
7. The Accused Child and the Administration of Justice = 411
8. The Child and Deprivation of Liberty = 420
9. The Rights of the Child and Penal Sanctions = 429
10. The Accused Child and the Question of Diversion = 430
11. The Child as Victim or Witness in Judicial Proceedings = 433
12. The Child and His or Her Parents: When Separation May be Justified = 436
13. The Rights of the Child and Adoption Proceedings = 439
14. The Role of Judges, Prosecutors and Lawyers in Guaranteeing the Rights of the Child in the Course of the Administration of Justice = 442
15. Concluding Remarks = 443
Chapter 11
Women’s Rights in the Administration of Justice = 445
Learning Objectives = 445
Questions = 445
Relevant Legal Instruments = 446
1. Introduction = 447
2. Women’s Right to Legal Personality = 449
3. Women’s Right to Equality Before the Law and Equal Protection of the Law = 450
4. Women’s Right to Respect for their Life and their Physical and Mental Integrity = 458
5. Women’s Right to Freedom from Slavery, the Slave Trade, Forced and Compulsory Labour, and Trafficking = 478
6. The Right to Equality in respect of Marriage = 484
7. The Equal Right to Legal Capacity in Civil Matters = 502
8. The Right to Equal Participation in Public Affairs, including Elections = 505
9. Women’s Right to Equal Enjoyment of Other Human Rights = 511
10. Women’s Right to an Effective Remedy, including the Right of Access to the Courts and Due Process of Law = 516
11. The Role of Judges, Prosecutors and Lawyers in Ensuring Protection of the Rights of Women = 519
12. Concluding Remarks = 520
Chapter 12
Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly = 521
Learning Objectives = 521
Questions = 521
Relevant Legal Instruments = 522
1. Introduction = 523
2. The Right to Freedom of Thought, Conscience and Religion = 524
3. The Right to Freedom of Opinion and Expression = 546
4. The Rights to Freedom of Association and Assembly = 597
5. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of Freedom of Thought, Conscience, Religion, Opinion, Expression, Association and Assembly = 629
6. Concluding Remarks = 630
Chapter 13
The Right to Equality and Non-Discrimination in the Administration of Justice = 631
Learning Objectives = 631
Questions = 631
Relevant Legal Instruments = 632
1. Introduction = 633
2. Selected Universal Legal Provisions Guaranteeing the Right to Equality before the Law and the Right to Non-discrimination = 636
3. Selected Regional Legal Provisions Guaranteeing the Right to Equality before the Law and the Right to Non-discrimination = 643
4. The Prohibition of Discrimination and Public Emergencies = 649
5. The General Meaning of Equality and Non-Discrimination = 651
6. Selected International Case Law and Legal Comments on the Right to Equality and the Prohibition of Discrimination = 656
7. Concluding Remarks = 678
Chapter 14
The Role of the Courts in Protecting Economic, Social and Cultural Rights = 681
Learning Objectives = 681
Questions = 681
Relevant Legal Instruments = 682
1. Introduction = 683
2. History Revisited: Why are there Two International Covenants on Human Rights? = 683
3. Interdependence and Indivisibility of Human Rights = 692
4. Universal and Regional Treaties for the Protection of Economic, Social and Cultural Rights: The Rights Guaranteed = 696
5. The Legal Obligations of States to Protect Economic, Social and Cultural Rights = 701
6. Economic, Social and Cultural Rights: Are they Justiciable? = 707
7. Case Study I: The Right to Adequate Housing = 710
8. Case Study II: The Right to Health = 730
9. The Role of Judges, Prosecutors and Lawyers in the Protection of Economic, Social and Cultural Rights: Lessons Learned = 748
10. Concluding Remarks = 748
Chapter 15
Protection and Redress for Victims of Crime and Human Rights Violations =749
Learning Objectives = 749
Questions = 749
Relevant Legal Instruments = 750
1. Introduction = 751
2. Protection and Redress for Victims of Crime = 753
3. Protection and Redress for Victims of Human Rights Violations = 773
4. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice for Victims of Crime and Human Rights Violations = 809
5. Concluding Remarks = 809
Chapter 16
The Administration of Justice During States of Emergency = 811
Learning Objectives = 811
Questions = 811
Relevant Legal Instruments = 812
1. Introduction = 813
2. The Notion of Public Emergency in International Human Rights Law = 815
3. Non-Derogable Rights and Obligations in International Human Rights Law = 831
4. Derogable Rights and the Condition of Strict Necessity = 852
5. The Condition of Consistency with Other International Legal Obligations = 877
6. The Condition of Non-Discrimination = 879
7. The Condition of International Notification = 881
8. The Role of Judges, Prosecutors and Lawyers in Ensuring the Effective Protection of Human Rights in Emergency Situations = 884
9. Concluding Remarks = 885