The Cambridge Handbook of New Human Rights Recognition Novelty Rhetoric Andreas Von Arnauld Complete Edition
The Cambridge Handbook of New Human Rights Recognition Novelty Rhetoric Andreas Von Arnauld Complete Edition
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i
This book provides in-depth insight to scholars, practitioners and activists dealing with human rights,
their expansion and the emergence of ‘new’ human rights. Whereas legal theory tends to neglect the
development of concrete individual rights, monographs on ‘new’ rights often deal with structural
matters only in passing and the issue of ‘new’ human rights has received only cursory attention in
the literature. By bringing together a large number of emergent human rights that are analysed by
renowned human rights experts from around the world, and combining these analyses with theoret-
ical approaches, this book fills the lacuna. The comprehensive and dialectic approach, which enables
insights from individual rights to overarching theory and vice versa, will ensure knowledge growth
for generalists and specialists alike. The volume goes beyond a purely legal analysis by observing the
contestation, rhetoric and struggle for recognition of ‘new’ human rights, thus speaking to human
rights professionals beyond the legal sphere.
Andreas von Arnauld is Managing Director of the Walther Schücking Institute for International
Law at Kiel University, Germany. He is the author of an established German textbook on inter-
national law and numerous other publications on human rights law, peacekeeping, armed conflict,
dispute settlement, comparative constitutional law and foundations of law.
Kerstin von der Decken is Director of the Walther Schücking Institute for International Law at
Kiel University, Germany. She does research and publishes extensively on human rights focusing on
the comparison of human rights systems. She is Visiting Professor at various universities, including
the University of St. Gallen, Switzerland, and Paris-Sorbonne University, Abu Dhabi.
Mart Susi is Professor of Human Rights Law and Head of Legal Studies at Tallinn University,
Estonia. He is the editor of several volumes focusing on new media, human rights in the digital
domain and philosophy of law. Recently he has proposed the Internet Balancing Formula and has
held seminars on the topic of protecting human rights in the digital domain at various universities
across the globe.
ii
iii
Edited by
MART SUSI
Tallinn University
iv
www.cambridge.org
Information on this title: www.cambridge.org/9781108484732
DOI: 10.1017/9781108676106
© Cambridge University Press 2020
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2020
Printed in the United Kingdom by TJ International Ltd, Padstow Cornwall
A catalogue record for this publication is available from the British Library.
ISBN 978-1-108-48473-2 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy
of URLs for external or third-party internet websites referred to in this publication
and does not guarantee that any content on such websites is, or will remain,
accurate or appropriate.
v
Contents
Introduction 1
Andreas von Arnauld, Kerstin von der Decken and Mart Susi
v
vi
vi Contents
6 The Human Right to Adequate Housing and the New Human Right
to Land: Congruent Entitlements 81
Miloon Kothari
8 The Right to Health under the ICESCR: Existing Scope, New Challenges
and How to Deal with It 107
Eibe Riedel
9 Strong New Branches to the Trunk: Realising the Right to Health Decentrally 124
Stefan Martini
Contents vii
Animal Rights
21 The Case for the Right to Meaningful Access to the Internet as a Human
Right in International Law 276
Başak Çalı
Reproductive Rights
Genetic Rights
26 The Relevance of Human Rights for Dealing with the Challenges Posed
by Genetics 335
Roberto Andorno
viii
viii Contents
28 The Right to Bodily Integrity: Cutting Away Rhetoric in Favour of Substance 363
A. M. Viens
Contents ix
Index 563
x
Figures
x
xi
Contributors
Kohki Abe is Professor of Peace Studies at Meiji Gakuin University, Japan and an Emeritus
Professor of International Law at Kanagawa University, Japan. He holds a doctorate in law from
Waseda University, Waseda University and an LLM from the University of Virginia School of
Law. He currently serves as a Refugee Examination Counselor for the Minister of Justice, an
associate member of the Science Council of Japan and Vice-President of the Japan Branch of
the Asian Society of International Law. He is the founding president of Human Rights Now
(a Japan-based international NGO). His publications include International Law’s Stories:
A Kaleidoscope of State Functions (in Japanese, 2019), Human Rights-ization of International
Law (in Japanese, 2014), ‘Implementation of Universal Human Rights Standards in Japan: An
Interface of National and International Law, in The Universalism of Human Rights (R. Arnold
(ed)., Springer, 2013) and Overview of Statelessness: International and Japanese Contexts
(UNHCR, 2010).
Roberto Andorno is Associate Professor of Biomedical Law and Bioethics at the Faculty of
Law, and Research Associate at the Institute of Biomedical Ethics and Medical History of the
University of Zurich. He holds doctoral degrees in law from the Universities of Buenos Aires
and Paris-Est, both on topics related to the legal aspects of assisted reproductive technologies.
From 1998 to 2005 he served as a member of the International Bioethics Committee (IBC) of
UNESCO as the representative of Argentina. His research interests include a variety of topics
at the intersection of bioethics and human rights. He is the author of numerous books, articles
and book chapters on these issues, and notably of Principles of International Biolaw: Seeking
Common Ground at the Intersection of Bioethics and Human Rights (2013).
Andreas von Arnauld is full Professor of Public Law, Public International and European Law
at Kiel University and Managing Director of the Walther Schücking Institute for International
Law. Before taking this position (in 2013) he was full professor at Helmut Schmidt University
Hamburg (2006–12) and Münster University (2012–13). He holds a Dr. jur. from Hamburg
University (1998) and a post-doctoral qualification (Habilitation) from Free University Berlin
(2005). Among numerous publications on, inter alia, human rights law, peacekeeping, armed
conflict, dispute settlement, comparative constitutional law, legal theory and legal history, he
is the author of a prominent textbook on international law (in German, 4th edition 2019) and
co-editor of the German Yearbook of International Law and of Die Friedens-Warte: Journal for
International Peace and Organization.
xi
xii
Samantha Besson is Professor at the Collège de France in Paris where she holds the Chair Droit
international des institutions, and is Professor of Public International Law and European Law
at the University of Fribourg in Switzerland. She has published on a variety of topics in general
international law, European public law and democratic theory, with a special interest in human
rights law and theory. She is the author and editor of numerous books in English and French,
including Legal Republicanism: National and International Perspectives (Oxford University
Press, 2009) ; The Philosophy of International Law (co-edited with John Tasioulas) (Oxford
University Press: 2010; and The Oxford Handbook on the Sources of International Law (co-edited
with Jean d’Aspremont) (Oxford University Press: 2017. She held visiting professorships at Duke,
Harvard and Penn Law Schools, and has lectured in various capacities at the Hague Academy of
International Law. She was a Fellow of the Wissenschaftskolleg zu Berlin and is member of the
Scientific Board of the Institute of Advanced Study in Nantes.
Sigrid Boysen is Professor of Public law, European and Public International Law at Helmut
Schmidt University, Hamburg. Before joining Helmut Schmidt University, she was Associate
Professor at Free University Berlin. Her research focuses on the theory of international law,
transnational resource law and constitutional law. Her recent publications include journal art-
icles on global public goods and various chapters on constitutional rights. She is co-editor of the
international law review Archiv des Völkerrechts.
Eva Brems (LLM Harvard 1995, PhD KU Leuven 1999) is Professor of Human Rights Law at
Ghent University (Belgium), where she founded the Human Rights Centre (www.hrc.ugent.be/).
Her research interests include most areas of human rights law, in European and international
law as well as in Belgian and comparative law. See also the blog www.strasbourgobservers.com.
Baş ak Çalı is Professor of International Law and Director of the Centre for Fundamental
Rights at Hertie School of Governance, Berlin. She is also a member of the Law School at
Koç University, Istanbul where she directs the Center for Global Public Law. Her research
spans public international law, international human rights law and European human rights
law with a specific focus on legal interpretation, regime interaction and domestic impact.
She is the Chair of the European Implementation Network and served as the Secretary
General of the European Society of International Law between 2014 and 2018. She has served
as a Council of Europe expert on the European Convention on Human Rights since 2002.
Her publications include International Law for International Relations (Oxford University
xiii
Press 2010) and Authority of International Law: Obedience, Respect and Rebuttal (Oxford
University Press 2015).
Danwood M. Chirwa is a professor and current Dean of Law at the University of Cape Town.
He has considerable research and teaching experience in human rights, especially children’s
rights, socio-economic rights, and business and human rights, on which he has authored and
edited several books and journal articles. He has also worked with several international and
African non-governmental organisations. A former Secretary-General of the African Network
of Constitutional Lawyers, Chirwa has served as a member of the advisory boards for many
organisations including the Open Democracy Advice Centre, Resources Aimed at the
Prevention of Child Abuse and Neglect (RAPCAN) and the Socio-Economic Rights Institute of
South Africa (SERI). He is currently a member of the Board of Trustees for the UN Voluntary
Trust Fund on Contemporary Forms of Slavery, of the Board of Directors of the Global Business
and Human Rights Scholars Association, and a member of a Technical Working Group of the
African Partnership to End Violence against Children.
Hugh Corder has been the Professor of Public Law at the University of Cape Town since
1987. A graduate of Cape Town, Cambridge and Oxford, he started his academic career at
Stellenbosch. He served as Dean of the Faculty of Law at Cape Town from 1999 to 2008. He
has worked in many capacities in community organisations, mainly in the promotion of human
rights. He was a member of the committee which drafted South Africa’s first Bill of Rights in
1993, and has played a leading role in administrative law reform initiatives since 1992. He has
been a Fellow of the University of Cape Town since 2004.
Kerstin von der Decken is full professor of German Public Law, European Union Law and
Public International Law as well as a director of the Walther Schücking Institute for International
Law at Kiel University in Germany. Before taking this position (in 2011) she was full professor
at St. Gallen University in Switzerland (2004–11). She holds a Dr. iur. as well as a post-doctoral
qualification (Habilitation) from the University of Trier in Germany. She is co-editor of the
German Yearbook of International Law and of the scientific board of the Italian Journal Ordine
Internazionale e Diritti Umani. She does research and publishes extensively on human rights,
focusing on the comparison of human rights systems. She has been and is Visiting Professor of
Public International Law at various universities, including the Université Paris I – Panthéon
Sorbonne and Université Paris II Panthéon-Assas (France), the Georgetown University Law
Center, Washington DC (USA), the National University of Tucumán (Argentina), the University
of Oviedo (Spain), and Paris-Sorbonne University Abu Dhabi (United Arab Emirates), where
she teaches, inter alia, International Human Rights.
Thomas Douglas holds degrees in clinical medicine (MBChB, Otago) and philosophy (DPhil,
Oxford) and works in philosophical bioethics. He is currently Senior Research Fellow and
Director of Research and Development in the Oxford Uehiro Centre of Practical Ethics, Faculty
of Philosophy, University of Oxford; Hugh Price Fellow at Jesus College, Oxford; and Editor of
the Journal of Practical Ethics. From 2013 to 2019 he led the Wellcome Trust-funded project
'Neurointerventions in Crime Prevention: An Ethical Analysis’ and he is currently Principal
Investigator on the project ‘Protecting Minds: The Right to Mental Integrity and the Ethics of
Arational Influence’, funded by the European Research Council.
María Clara Galvis Patiño graduated from Law School at Universidad Externado de Colombia,
where she is a professor of International Human Rights Law. She teaches Inter-American and
xiv
United Nations Human Rights Protection Systems, International Human Rights Law on Enforced
Disappearances and Strategic Litigation. She is also a professor of the Academy for Human
Rights and Humanitarian Law at the American University, Washington College of Law, where
she teaches the United Nations Human Rights System. She was Vice-President and member of
the United Nations Committee against enforced disappearances. She is a board member of the
International Network for Human Rights (Geneva) and a member of the Consultative Council
and the Academic Committee of the Berg Institute (Spain). She has been a senior lawyer for the
Center for Justice and International Law (CEJIL) and a senior consultant for the Due Process
of Law Foundation (DPLF). She has represented victims of gross human rights violations before
the Inter-American Commission on Human Rights and the Inter-American Court of Human
Rights. She has been a consultant for the International Development Law Organization (IDLO)
and for inter-governmental organisations at the Office of the High Commissioner for Human
Rights (OHCHR) and the United Nations High Commissioner for Refugees (UNHCR), and for
cooperation agencies as USAID, GIZ and the Heinrich Böll Foundation. She frequently gives
talks and conferences in various countries in Latin America and Europe and has written in the
areas of International Human Rights Law, Inter-American Law, Transitional Justice, Enforced
Disappearance, Business and Human Rights, Human Rights of Indigenous People and Human
Rights of Women.
Janneke Gerards is professor of fundamental rights law at Utrecht University, director of the
Montaigne Centre for Rule of Law and Administration of Justice, and Dean of the Legal Research
Master. She holds a designated chair in Utrecht University’s research programme ‘Institutions
for open societies’ and she is a fellow at the Human Rights Institute (SIM). Since 2015 she has
been a member of the Royal Netherlands Academy of Arts and Sciences. Her activities outside
the university include being a deputy Judge in the Appeals Court of The Hague and being a
member of the Human Rights Commission of the Dutch Advisory Council on International
Affairs. The research conducted by Professor Gerards focuses on fundamental rights, judi-
cial argumentation and constitutional law. The interrelation of the European Convention on
Human Rights, EU law and national law plays a central role in her research. She is also active
in the field of understanding the fundamental rights impact of societal developments and new
technologies, ranging from genetic research to algorithms and AI. For more information, please
see www.uu.nl/staff/jhgerards.
Jérémie Gilbert is Professor of Human Rights Law at the University of Roehampton, United
Kingdom. His main area of research is on international human rights law, and more particularly
the rights of minorities and indigenous peoples. He has extensively published on the rights of
indigenous peoples, looking in particular at their right to land and natural resources. Jérémie
has worked with several indigenous communities across the globe and regularly serves as a con-
sultant for several international organisations and non-governmental organisations supporting
indigenous peoples’ rights. As a legal expert, he has been involved in providing legal briefs,
expert opinions and carrying out evidence-gathering in several cases involving indigenous
peoples’ land rights across the globe.
Günther Handl is the Eberhard P. Deutsch Professor of Public International Law at Tulane
University Law School. He holds law degrees from the University of Graz (Dr. iur.), Cambridge
(LLB) and Yale (SJD). He is the author of several books and numerous articles on the field of
public international law, international environmental law, law of the sea and nuclear energy
law. Professor Handl is the recipient of a number of awards, including the Prix Elisabeth
xv
List of Contributors xv
Haub 1997. He has served in an advisory capacity to various governments and international
organisations.
Nikolaus Koch is a research assistant and doctoral candidate at the Walther Schücking
Institute of International Law at Kiel University, Germany. His doctoral research focuses on
the UN Security Council and matters concerning use of force, in particular a state’s reporting
requirements under the UN Charter in cases of self-defence. Prior to working in Kiel he was a
fellow at the Kolleg-Forschungsgruppe ‘The International Rule of Law – Rise or Decline?’ at
Humboldt University, Berlin.
Miloon Kothari is an Independent Expert on Human Rights and Social Policy based in New
Delhi, India. He was (from 2000–08) the First Special Rapporteur on adequate housing with
the United Nations Commission on Human Rights and the Human Rights Council. During
his tenure as Special Rapporteur he led the process that resulted in the UN Basic Principles
and Guidelines on Development-based Evictions and Displacement – the current global
operational human rights standard on the practice of forced evictions: www.ohchr.org/en/
Issues/Housing/Pages/ForcedEvictions.aspx. Mr Kothari is the founder and former coordin-
ator of Habitat International’s Housing and Land Rights Network (HLRN) www.hlrn.org/ and
founder and former executive director (1999–2013) of the Housing and Land Rights Network,
India http://hlrn.org.in/. He is a founding member and former convener of the Working Group
on Human Rights in India and the UN (WGHR), India’s leading alliance of human rights
organisations and independent experts working on the UN’s Universal Periodic Review (UPR):
http://wghr.org/, and is the President of UPR-Info, the world’s leading independent organ-
isation that seeks to promote and strengthen the UPR: www.upr-info.org/en. Mr Kothari has
published widely and has lectured and taught at leading academic institutions around the
world. In 2013 he was appointed Dr Martin Luther King Visiting Scholar at the Massachusetts
Institute of Technology and continued as Distinguished Visiting Scholar with the (MIT)
Program on Human Rights and Justice (2014–15). In 2017 Mr Kothari was bestowed with the
degree Doctor of Laws.
Holning Lau is the Willie P. Mangum Distinguished Professor of Law at the University of North
Carolina School of Law, where he teaches courses on international human rights and compara-
tive constitutional law. In 2018–19 he served as an independent consultant to the International
Commission of Jurists and the Danish Institute for Human Rights, supporting their work on
sexual orientation and gender identity issues in Myanmar. He previously taught at Hofstra
University School of Law, where he co-directed the LGBT Rights Fellowship Program, and
at UCLA, where he was a fellow at the Williams Institute on Sexual Orientation and Gender
Identity Law and Public Policy.
Fergus MacKay is Senior Counsel at the UK-based NGO, the Forest Peoples Programme.
He has litigated several cases before United Nations treaty bodies and the Inter-American
Commission and Court of Human Rights, including the Saramaka People (2007) and
Kaliña and Lokono Peoples (2015) cases. He previously served as an expert advisor to the
Organization of American States concerning its American Declaration on the Rights of
Indigenous Peoples and as a member of the advisory panel to the World Bank’s Extractive
Industries Review.
Stefan Martini is a post-doctoral researcher at the Walther Schücking Institute of
International Law, Kiel University, Germany. He holds a Dr. iur. from Kiel University. He
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