Allen Buchanan
- Published in print:
- 2003
- Published Online:
- April 2004
- ISBN:
- 9780198295358
- eISBN:
- 9780191600982
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/0198295359.003.0004
- Subject:
- Political Science, Political Theory
This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal ...
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This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal order should include rights of distributive justice (sometimes called social and economic rights) for individuals that exceed the right to the means of subsistence that is already widely recognized in international and regional human rights instruments, and (2) whether international law should recognize not only individuals but collectivities such as states or “peoples” or nations as having rights of distributive justice. To situate these questions, the chapter begins by considering alternative explanations for widespread skepticism about the possibility that distributive justice can have a significant place in the international legal order. The remaining sections of the chapter discuss: I. The Place of Distributive Justice in International Law; II. Reasons for Rejecting a Prominent Role for Distributive Justice in International Law Today; III. Deep Distributive Pluralism; IV. Societal Distributive Autonomy; and V. Institutional Capacity and Lack of Political Will.Less
This chapter grapples with the most controversial topic in the discourse of human rights: distributive justice. The chief questions to be addressed are (1) whether a justice‐based international legal order should include rights of distributive justice (sometimes called social and economic rights) for individuals that exceed the right to the means of subsistence that is already widely recognized in international and regional human rights instruments, and (2) whether international law should recognize not only individuals but collectivities such as states or “peoples” or nations as having rights of distributive justice. To situate these questions, the chapter begins by considering alternative explanations for widespread skepticism about the possibility that distributive justice can have a significant place in the international legal order. The remaining sections of the chapter discuss: I. The Place of Distributive Justice in International Law; II. Reasons for Rejecting a Prominent Role for Distributive Justice in International Law Today; III. Deep Distributive Pluralism; IV. Societal Distributive Autonomy; and V. Institutional Capacity and Lack of Political Will.
Raymond Plant
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199281756
- eISBN:
- 9780191713040
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199281756.003.0013
- Subject:
- Political Science, Comparative Politics, Political Theory
This chapter focuses on the critique of rights when they extend beyond protecting negative liberty as set out in Chapter 5. First of all, if the idea of negative liberty is defective, then so too is ...
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This chapter focuses on the critique of rights when they extend beyond protecting negative liberty as set out in Chapter 5. First of all, if the idea of negative liberty is defective, then so too is a theory of rights, which limits role to the protection of such liberties. Building on the more comprehensive account of liberty set out in Chapter 10 it is argued that there is no justification for arguing that there is a categorical distinction to be drawn between negative rights to protect individuals from the coercion of others including the state and social and economic or positive rights. This claim does not depend solely upon the argument about freedom but is also based upon a critical analysis of other salient ideas which have been used to reject positive rights such as scarcity, the illusory nature of social justice, and the indefiniteness of corresponding obligations in respect of positive rights.Less
This chapter focuses on the critique of rights when they extend beyond protecting negative liberty as set out in Chapter 5. First of all, if the idea of negative liberty is defective, then so too is a theory of rights, which limits role to the protection of such liberties. Building on the more comprehensive account of liberty set out in Chapter 10 it is argued that there is no justification for arguing that there is a categorical distinction to be drawn between negative rights to protect individuals from the coercion of others including the state and social and economic or positive rights. This claim does not depend solely upon the argument about freedom but is also based upon a critical analysis of other salient ideas which have been used to reject positive rights such as scarcity, the illusory nature of social justice, and the indefiniteness of corresponding obligations in respect of positive rights.
RUMU SARKAR
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780195398281
- eISBN:
- 9780199866366
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780195398281.003.004
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter examines whether there is a human right to development. It is the most legally focused of all the chapters and essentially tracks the historical antecedents of the “right to ...
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This chapter examines whether there is a human right to development. It is the most legally focused of all the chapters and essentially tracks the historical antecedents of the “right to development,” the Africanization of such rights, and the imposition of a duty-based regime under this and Islamic notions of what constitutes a human right to development. The “judicialization” of such international human rights discourse is also examined as a new trend in this area. The chapter considers the historical antecedents to the right to development and its theoretical foundations. The tensions between the international Covenant on Civil and Political Rights (ICCPR), and the international Covenant on Economic, Social and Cultural Rights (ICESCR) are examined. The influence of African states on the right to development is reviewed with a thorough examination of the Banjul Charter and its implications. The impact of the New International Economic Order (NEIO), the Monterrey Consensus, and the judicialization of human rights within the “right to development” spectrum are all critically reviewed. New trends and possibilities for the future of the right to development are discussed.Less
This chapter examines whether there is a human right to development. It is the most legally focused of all the chapters and essentially tracks the historical antecedents of the “right to development,” the Africanization of such rights, and the imposition of a duty-based regime under this and Islamic notions of what constitutes a human right to development. The “judicialization” of such international human rights discourse is also examined as a new trend in this area. The chapter considers the historical antecedents to the right to development and its theoretical foundations. The tensions between the international Covenant on Civil and Political Rights (ICCPR), and the international Covenant on Economic, Social and Cultural Rights (ICESCR) are examined. The influence of African states on the right to development is reviewed with a thorough examination of the Banjul Charter and its implications. The impact of the New International Economic Order (NEIO), the Monterrey Consensus, and the judicialization of human rights within the “right to development” spectrum are all critically reviewed. New trends and possibilities for the future of the right to development are discussed.
Holger Hestermeyer
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552177
- eISBN:
- 9780191706936
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552177.003.0003
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter begins with a background note on international human rights law and the right to health — the most commonly mentioned basis for a right to access to medicine — as well as human rights ...
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This chapter begins with a background note on international human rights law and the right to health — the most commonly mentioned basis for a right to access to medicine — as well as human rights aspects of intellectual property. It then discusses the interpretation of human rights conventions. The rights at issue are closely connected to the notion of economic, social, and cultural rights. Some authors argue that this category of human rights is of doubtful legal relevance, an objection that is treated under the heading of ‘justiciability’. The chapter also examines whether pharmaceutical companies are directly bound by these rights and whether the WTO is bound by human rights law. Finally, the right to access to medicine is discussed in detail, proceeding in the order of the sources recognized by international law as stated in Article 38 of the Statute of the International Court of Justice (ICJ): international conventions, customary international law, and general principles of law.Less
This chapter begins with a background note on international human rights law and the right to health — the most commonly mentioned basis for a right to access to medicine — as well as human rights aspects of intellectual property. It then discusses the interpretation of human rights conventions. The rights at issue are closely connected to the notion of economic, social, and cultural rights. Some authors argue that this category of human rights is of doubtful legal relevance, an objection that is treated under the heading of ‘justiciability’. The chapter also examines whether pharmaceutical companies are directly bound by these rights and whether the WTO is bound by human rights law. Finally, the right to access to medicine is discussed in detail, proceeding in the order of the sources recognized by international law as stated in Article 38 of the Statute of the International Court of Justice (ICJ): international conventions, customary international law, and general principles of law.
David M. Beatty
- Published in print:
- 2004
- Published Online:
- January 2010
- ISBN:
- 9780199269808
- eISBN:
- 9780191710063
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199269808.001.0001
- Subject:
- Law, Philosophy of Law
This book addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, ...
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This book addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same-sex marriages, women in the military, and rights to basic shelter and life-saving medical treatment are evaluated and compared. The book develops a radical alternative to the conventional view that judges decide these cases by engaging in an essentially interpretative, and thus subjective, act, relying ultimately on their personal beliefs and political opinions. The book shows that it is possible to exercise impartiality and objectivity in judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty. Controversially, the book concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.Less
This book addresses the age-old tension between law and politics by examining whether the personal beliefs of judges come into play in adjudicating on issues of religious freedom, sex discrimination, and social and economic rights. Decisions by the Supreme Courts of India, Japan, Canada, the United States, Ireland, Israel, the Constitutional Courts of Germany, Hungary, South Africa, and the European Court of Human Rights on such controversial issues as government funding of religious schools, abortion, same-sex marriages, women in the military, and rights to basic shelter and life-saving medical treatment are evaluated and compared. The book develops a radical alternative to the conventional view that judges decide these cases by engaging in an essentially interpretative, and thus subjective, act, relying ultimately on their personal beliefs and political opinions. The book shows that it is possible to exercise impartiality and objectivity in judicial review, based on the principle of proportionality, which acts as an ultimate rule of law and is fully compatible with the ideals of democracy and popular sovereignty. Controversially, the book concludes that although this method of judicial review originated in the United States, American judges generally appear to be far less inclined to this conception of constitutional adjudication than their counterparts in Europe, Africa, and Asia.
Amir Paz-Fuchs
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199237418
- eISBN:
- 9780191717192
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199237418.003.0002
- Subject:
- Law, Employment Law
This chapter focuses on the intersection between the two fundamental pillars under investigation: the social contract and the welfare state. The social contract provides the normative platform for ...
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This chapter focuses on the intersection between the two fundamental pillars under investigation: the social contract and the welfare state. The social contract provides the normative platform for conditionality as it is expressed with respect to the relationship between the individual and the state. In addition, social contract paradigm has jurisprudential implications, that concern the conceptualization of rights and the legitimacy of placing conditions upon them. This new construction has the potential to make a significant impact on the value ascribed to rights in society. The critiques that the choice and interest theories of rights have levelled against each other are helpful in introducing this point. The fear is that rights will be seen to reflect no more than the aggregate of interests in a particular context, leaving them conceptually redundant.Less
This chapter focuses on the intersection between the two fundamental pillars under investigation: the social contract and the welfare state. The social contract provides the normative platform for conditionality as it is expressed with respect to the relationship between the individual and the state. In addition, social contract paradigm has jurisprudential implications, that concern the conceptualization of rights and the legitimacy of placing conditions upon them. This new construction has the potential to make a significant impact on the value ascribed to rights in society. The critiques that the choice and interest theories of rights have levelled against each other are helpful in introducing this point. The fear is that rights will be seen to reflect no more than the aggregate of interests in a particular context, leaving them conceptually redundant.
Margot E Salomon
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199284429
- eISBN:
- 9780191713736
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199284429.003.003
- Subject:
- Law, Human Rights and Immigration
This chapter addresses the sources of cooperation for economic, social and cultural rights in international law, and explores the contemporary content of this obligation. Drawing on a broad range of ...
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This chapter addresses the sources of cooperation for economic, social and cultural rights in international law, and explores the contemporary content of this obligation. Drawing on a broad range of hard and soft law instruments, the centrality of international cooperation for addressing the deprivations of poverty is reaffirmed legally, and given shape operationally. The complementary principle of a shared responsibility for human rights, recently pronounced by the international community, strengthens this legal obligation to cooperate internationally.Less
This chapter addresses the sources of cooperation for economic, social and cultural rights in international law, and explores the contemporary content of this obligation. Drawing on a broad range of hard and soft law instruments, the centrality of international cooperation for addressing the deprivations of poverty is reaffirmed legally, and given shape operationally. The complementary principle of a shared responsibility for human rights, recently pronounced by the international community, strengthens this legal obligation to cooperate internationally.
Ed Bates
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0011
- Subject:
- Law, Human Rights and Immigration
This chapter explores how the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been of relevance for the British government in recent years and the British government's ...
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This chapter explores how the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been of relevance for the British government in recent years and the British government's view on the nature and status of Covenant rights, in particular their susceptibility to incorporation into domestic law. It looks at the 1996 UK Report to the Committee on Economic, Social and Cultural Rights (ESCR Committee) under the Conservative administration and the 2001 UK Report under the ‘new’ Labour administration. It shows that both these reporting rounds revealed a significant disparity of views between the ESCR Committee and the British government as regards the susceptibility of Covenant rights to incorporation into UK law.Less
This chapter explores how the International Covenant on Economic, Social and Cultural Rights (ICESCR) has been of relevance for the British government in recent years and the British government's view on the nature and status of Covenant rights, in particular their susceptibility to incorporation into domestic law. It looks at the 1996 UK Report to the Committee on Economic, Social and Cultural Rights (ESCR Committee) under the Conservative administration and the 2001 UK Report under the ‘new’ Labour administration. It shows that both these reporting rounds revealed a significant disparity of views between the ESCR Committee and the British government as regards the susceptibility of Covenant rights to incorporation into UK law.
Mashood A. Baderin and Robert McCorquodale
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0001
- Subject:
- Law, Human Rights and Immigration
This chapter begins with the history of the drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR), it sets out some of the core conceptual debates about economic, ...
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This chapter begins with the history of the drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR), it sets out some of the core conceptual debates about economic, social, and cultural rights (ESC rights), including their justiciability and the nature of the relevant legal obligations. It then discusses the three main themes of the book: the structure and scope of obligations under the ICESCR; regional and comparative understandings of ESC rights; and applications of these rights. An overview of the subsequent chapters is presented.Less
This chapter begins with the history of the drafting of the International Covenant on Economic, Social and Cultural Rights (ICESCR), it sets out some of the core conceptual debates about economic, social, and cultural rights (ESC rights), including their justiciability and the nature of the relevant legal obligations. It then discusses the three main themes of the book: the structure and scope of obligations under the ICESCR; regional and comparative understandings of ESC rights; and applications of these rights. An overview of the subsequent chapters is presented.
Cosmo Graham
- Published in print:
- 2010
- Published Online:
- January 2011
- ISBN:
- 9780199593170
- eISBN:
- 9780191595660
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199593170.003.0008
- Subject:
- Law, Constitutional and Administrative Law
Written constitutions generally provide a list of individual rights for citizens of the state. Historically, these have concentrated on civil and political rights, such as freedom of expression, ...
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Written constitutions generally provide a list of individual rights for citizens of the state. Historically, these have concentrated on civil and political rights, such as freedom of expression, religious freedom, etc. However, in modern industrialized societies, and more generally, there has come to be increasing recognition of the importance of so-called second generation social and economic rights, such as rights to education, housing and water, and for the ability of citizens to participate effectively in society. At the same time, there has been a move towards using competitive markets or market mechanisms to provide essential services in a number of areas, such as energy, water, and communications. There is an inherent tension between seeing access to these services as some form of right or entitlement and delivering them through competitive markets that do not take account of distributional concerns. This chapter explores this tension and the way that it has been mediated in the context of the UK, and the provision of essential services in the energy, water, and communications sectors. As a point of comparison, it looks at how the question of access to water has been treated in South Africa.Less
Written constitutions generally provide a list of individual rights for citizens of the state. Historically, these have concentrated on civil and political rights, such as freedom of expression, religious freedom, etc. However, in modern industrialized societies, and more generally, there has come to be increasing recognition of the importance of so-called second generation social and economic rights, such as rights to education, housing and water, and for the ability of citizens to participate effectively in society. At the same time, there has been a move towards using competitive markets or market mechanisms to provide essential services in a number of areas, such as energy, water, and communications. There is an inherent tension between seeing access to these services as some form of right or entitlement and delivering them through competitive markets that do not take account of distributional concerns. This chapter explores this tension and the way that it has been mediated in the context of the UK, and the provision of essential services in the energy, water, and communications sectors. As a point of comparison, it looks at how the question of access to water has been treated in South Africa.
Richard Burchill
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0014
- Subject:
- Law, Human Rights and Immigration
This chapter examines the relationship between democracy and economic, social, and cultural rights. It discusses the problems that have arisen in the international legal discourse due to the ...
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This chapter examines the relationship between democracy and economic, social, and cultural rights. It discusses the problems that have arisen in the international legal discourse due to the minimalist understanding of democracy as equating to a limited range of civil and political rights. A case is made for a definition of democracy that explicitly encompasses socio-economic rights as integral features. The chapter then examines the extent to which international human rights law has moved beyond these conceptions through an examination of the International Covenant on Economic, Social and Cultural Rights. It argues that for human rights and democracy to live up to their promised deals, socioeconomic rights need to be given much greater attention in a way that places them at the centre of concerns for human dignity and development.Less
This chapter examines the relationship between democracy and economic, social, and cultural rights. It discusses the problems that have arisen in the international legal discourse due to the minimalist understanding of democracy as equating to a limited range of civil and political rights. A case is made for a definition of democracy that explicitly encompasses socio-economic rights as integral features. The chapter then examines the extent to which international human rights law has moved beyond these conceptions through an examination of the International Covenant on Economic, Social and Cultural Rights. It argues that for human rights and democracy to live up to their promised deals, socioeconomic rights need to be given much greater attention in a way that places them at the centre of concerns for human dignity and development.
Mashood Baderin and Robert McCorquodale (eds)
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.001.0001
- Subject:
- Law, Human Rights and Immigration
On 16 December 1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights. This was the first global treaty that established legal obligations on states to ...
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On 16 December 1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights. This was the first global treaty that established legal obligations on states to protect a range of important economic, social, and cultural rights. Forty years later the vast majority of States have ratified this treaty. Despite this history, there remains considerable debate, both within the literature and within the international community generally, about the concept and application of economic, social, and cultural rights. This collection gives a coherent analysis of many of the key issues, both in concept and in application, relevant to economic, social, and cultural rights. The authors of the chapters, many of whom are leading scholars in their fields with significant experience in practice, examine how the obligations to protect these rights have been applied today, including their application to the Security Council and to non-state actors, as well as in the context of development and dispossession. They provide important universal and regional comparative perspectives on the development and implementation of these rights, and consider some of the contemporary issues relating to these rights, such as trade, health, and social security.Less
On 16 December 1966 the United Nations adopted the International Covenant on Economic, Social and Cultural Rights. This was the first global treaty that established legal obligations on states to protect a range of important economic, social, and cultural rights. Forty years later the vast majority of States have ratified this treaty. Despite this history, there remains considerable debate, both within the literature and within the international community generally, about the concept and application of economic, social, and cultural rights. This collection gives a coherent analysis of many of the key issues, both in concept and in application, relevant to economic, social, and cultural rights. The authors of the chapters, many of whom are leading scholars in their fields with significant experience in practice, examine how the obligations to protect these rights have been applied today, including their application to the Security Council and to non-state actors, as well as in the context of development and dispossession. They provide important universal and regional comparative perspectives on the development and implementation of these rights, and consider some of the contemporary issues relating to these rights, such as trade, health, and social security.
Joanna L. Grossman and Lawrence M. Friedman
- Published in print:
- 2011
- Published Online:
- October 2017
- ISBN:
- 9780691149820
- eISBN:
- 9781400839773
- Item type:
- chapter
- Publisher:
- Princeton University Press
- DOI:
- 10.23943/princeton/9780691149820.003.0003
- Subject:
- Law, Family Law
This chapter explores marriage in the social and legal context. It looks at who marries, and what marriage seems to mean to them. Marriage is a crucial social institution, and many people bemoan the ...
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This chapter explores marriage in the social and legal context. It looks at who marries, and what marriage seems to mean to them. Marriage is a crucial social institution, and many people bemoan the state of American marriage: opponents of same-sex marriage, supporters of the patriarchal family, anti-divorce moralists, advocates for children, and so on. Marriage may be weaker than before, it may have changed greatly; but it is still fundamental to society and to the lives of people in America. And its consequences reverberate throughout society and the law. Thus the chapter discusses what marriage means in law: the rights and obligations of married couples, including economic rights. It also looks at the darker side of marriage—domestic violence and marital rape.Less
This chapter explores marriage in the social and legal context. It looks at who marries, and what marriage seems to mean to them. Marriage is a crucial social institution, and many people bemoan the state of American marriage: opponents of same-sex marriage, supporters of the patriarchal family, anti-divorce moralists, advocates for children, and so on. Marriage may be weaker than before, it may have changed greatly; but it is still fundamental to society and to the lives of people in America. And its consequences reverberate throughout society and the law. Thus the chapter discusses what marriage means in law: the rights and obligations of married couples, including economic rights. It also looks at the darker side of marriage—domestic violence and marital rape.
David Bilchitz
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199552160
- eISBN:
- 9780191709456
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199552160.003.0006
- Subject:
- Law, Human Rights and Immigration
This chapter focuses on the approach of the South African Constitutional Court towards enforcing socio-economic rights. South Africa has directly justiciable, express socio-economic rights in its ...
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This chapter focuses on the approach of the South African Constitutional Court towards enforcing socio-economic rights. South Africa has directly justiciable, express socio-economic rights in its Bill of Rights, and thus represents an important case study for considering the content of socio-economic rights and their implications for the policy of a government faced by significant poverty. The three most important decisions — Grootboom, Treatment Action Campaign and Khosa — are analysed in detail and shown to give expression to the ‘reasonableness approach’ of the Constitutional Court towards these rights. This approach is found wanting in several respects: perhaps the most important defects involve its failure to provide determinate content to such rights; the fact that it deflects the constitutional enquiry away from the urgent interests that are at stake in socio-economic rights cases; and its failure to provide a principled basis for intervention by the judiciary and allaying concerns relating to the separation of powers.Less
This chapter focuses on the approach of the South African Constitutional Court towards enforcing socio-economic rights. South Africa has directly justiciable, express socio-economic rights in its Bill of Rights, and thus represents an important case study for considering the content of socio-economic rights and their implications for the policy of a government faced by significant poverty. The three most important decisions — Grootboom, Treatment Action Campaign and Khosa — are analysed in detail and shown to give expression to the ‘reasonableness approach’ of the Constitutional Court towards these rights. This approach is found wanting in several respects: perhaps the most important defects involve its failure to provide determinate content to such rights; the fact that it deflects the constitutional enquiry away from the urgent interests that are at stake in socio-economic rights cases; and its failure to provide a principled basis for intervention by the judiciary and allaying concerns relating to the separation of powers.
Sandra Fredman FBA
- Published in print:
- 2008
- Published Online:
- January 2009
- ISBN:
- 9780199272761
- eISBN:
- 9780191709814
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199272761.001.0001
- Subject:
- Law, Human Rights and Immigration
This book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all rights give rise. Human rights have ...
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This book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all rights give rise. Human rights have traditionally been understood as protecting individual freedom against intrusion by the State. This book argues that human rights are based on a far richer view of freedom, going beyond absence of coercion and focussing on the ability to exercise such freedom. This requires positive action to facilitate freedom, and substantive equality. It also recognizes the essentially social nature of human beings, and the crucial role of social interaction in advancing freedom. Drawing on political theory and social policy, as well as comparative experience from India, South Africa, the European Convention on Human Rights, the EU, US, Canada, and the UK, the book aims to create a theoretical and applied framework for understanding positive human rights duties. The first part focuses on creating an analytic framework for understanding positive duties. Chapter 1 aims to refashion the underlying values of liberty, equality and solidarity to yield the rich understanding of human rights argued for in this book. Chapter 2 focuses on the State, examining the role of positive human rights duties in furthering democracy, and in respect of globalization and privatization. Part II aims to fashion a democratic role for courts as well as examining alternative compliance methods, while Part III applies the analysis to specific rights, firstly equality, and then the traditional socio-economic rights to housing, education, and welfare.Less
This book moves beyond the artificial boundary between socio-economic and civil and political rights and instead focuses on the positive duties to which all rights give rise. Human rights have traditionally been understood as protecting individual freedom against intrusion by the State. This book argues that human rights are based on a far richer view of freedom, going beyond absence of coercion and focussing on the ability to exercise such freedom. This requires positive action to facilitate freedom, and substantive equality. It also recognizes the essentially social nature of human beings, and the crucial role of social interaction in advancing freedom. Drawing on political theory and social policy, as well as comparative experience from India, South Africa, the European Convention on Human Rights, the EU, US, Canada, and the UK, the book aims to create a theoretical and applied framework for understanding positive human rights duties. The first part focuses on creating an analytic framework for understanding positive duties. Chapter 1 aims to refashion the underlying values of liberty, equality and solidarity to yield the rich understanding of human rights argued for in this book. Chapter 2 focuses on the State, examining the role of positive human rights duties in furthering democracy, and in respect of globalization and privatization. Part II aims to fashion a democratic role for courts as well as examining alternative compliance methods, while Part III applies the analysis to specific rights, firstly equality, and then the traditional socio-economic rights to housing, education, and welfare.
Pedro Nikken
- Published in print:
- 2009
- Published Online:
- February 2010
- ISBN:
- 9780199578184
- eISBN:
- 9780191722561
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199578184.003.0012
- Subject:
- Law, Human Rights and Immigration, Public International Law
This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts ...
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This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.Less
This chapter recalls that the inter-American system of human rights protects property as an individual right. However, the system is not the forum to protect business activity against arbitrary acts of the State. The practice of the Commission and the Court resists mixing wholly economic interests with human rights protection, even if property is involved in the conflict. The inter-American case law contains some solutions for conflicts of law. In cases of conflict between indigenous property and private property, the Court's jurisprudence suggests that human rights prevail over economic rights. Indigenous property is fully protected because it has a function that goes beyond pure economics. In contrast, the protection of other forms of private property is limited to compensation for expropriation. In principle, human rights must always prevail over rights related to international business. The payment of adequate compensation is the solution to meet investments commitments incompatible with human rights obligations.
Sakiko Fukuda‐Parr
- Published in print:
- 2008
- Published Online:
- May 2009
- ISBN:
- 9780199239979
- eISBN:
- 9780191716874
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199239979.003.0006
- Subject:
- Economics and Finance, Development, Growth, and Environmental
This chapter uses Sen's capability approach to explore whether there are inherent contradictions between human rights and development. The ‘human rights based approach’ has gained momentum yet many ...
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This chapter uses Sen's capability approach to explore whether there are inherent contradictions between human rights and development. The ‘human rights based approach’ has gained momentum yet many development practitioners and economists remain skeptical. The chapter reviews diverse critiques of the approach and assesses its application in government policy by reviewing Poverty Reduction Strategy Papers for fifty-five countries. It finds that only a few governments have incorporated the approach in policy priorities and concludes that the obstacles to further implementation do not lie with inherent contradictions between human rights principles and development, but with gaps in practical methods and tools. In particular, the absolutist interpretation of the principle of indivisibility is a major obstacle, and more work is needed to analyse norms of human rights that relate to the duty bearer to promote human rights in development in economic, social, and governance policies.Less
This chapter uses Sen's capability approach to explore whether there are inherent contradictions between human rights and development. The ‘human rights based approach’ has gained momentum yet many development practitioners and economists remain skeptical. The chapter reviews diverse critiques of the approach and assesses its application in government policy by reviewing Poverty Reduction Strategy Papers for fifty-five countries. It finds that only a few governments have incorporated the approach in policy priorities and concludes that the obstacles to further implementation do not lie with inherent contradictions between human rights principles and development, but with gaps in practical methods and tools. In particular, the absolutist interpretation of the principle of indivisibility is a major obstacle, and more work is needed to analyse norms of human rights that relate to the duty bearer to promote human rights in development in economic, social, and governance policies.
Colin Warbrick
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0010
- Subject:
- Law, Human Rights and Immigration
This chapter argues that, with the exception of the right to education, the European Convention on Human Rights (ECHR) does not protect economic and social rights. The chapter does not dispute that ...
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This chapter argues that, with the exception of the right to education, the European Convention on Human Rights (ECHR) does not protect economic and social rights. The chapter does not dispute that there may be overlaps between certain civil and political rights and economic and social rights. For instance, the trade union aspects of the political right of association with the economic right to organize for the protection of workers' interests; but they are not the same thing. Certainly they are not the same in the ECHR and the European Social Charter (ESC). It argues that what the Convention sometimes protects are economic and social aspects of explicit Convention rights. For instance, protection against state-inflicted destitution as an aspect of article 3; but again, this is not the protection of an economic and social right to social security or even to social and medical assistance.Less
This chapter argues that, with the exception of the right to education, the European Convention on Human Rights (ECHR) does not protect economic and social rights. The chapter does not dispute that there may be overlaps between certain civil and political rights and economic and social rights. For instance, the trade union aspects of the political right of association with the economic right to organize for the protection of workers' interests; but they are not the same thing. Certainly they are not the same in the ECHR and the European Social Charter (ESC). It argues that what the Convention sometimes protects are economic and social aspects of explicit Convention rights. For instance, protection against state-inflicted destitution as an aspect of article 3; but again, this is not the protection of an economic and social right to social security or even to social and medical assistance.
Patrick Twomey
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0003
- Subject:
- Law, Human Rights and Immigration
This chapter outlines the core concepts of human rights-based approaches (HRBAs) and explores the evolution of human rights-based approaches to development including the United Nations (UN) ...
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This chapter outlines the core concepts of human rights-based approaches (HRBAs) and explores the evolution of human rights-based approaches to development including the United Nations (UN) commitment to integrate human rights into all its work, national development plans, the role of socio-economic rights in development problem analysis, impact assessment, and key challenges to undertaking human rights-based development. The chapter also highlights the issue of measurement of human rights change as a critical factor in development planning, implementation, and evaluation towards ensuring accountability for both process and impact.Less
This chapter outlines the core concepts of human rights-based approaches (HRBAs) and explores the evolution of human rights-based approaches to development including the United Nations (UN) commitment to integrate human rights into all its work, national development plans, the role of socio-economic rights in development problem analysis, impact assessment, and key challenges to undertaking human rights-based development. The chapter also highlights the issue of measurement of human rights change as a critical factor in development planning, implementation, and evaluation towards ensuring accountability for both process and impact.
Paul Hunt and Gillian MacNaughton
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199217908
- eISBN:
- 9780191705380
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199217908.003.0012
- Subject:
- Law, Human Rights and Immigration
In 1993, the World Conference on Human Rights urged the examination of ‘a system of indicators to measure progress in the realization [of ESC rights]’ because the use of specific human rights ...
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In 1993, the World Conference on Human Rights urged the examination of ‘a system of indicators to measure progress in the realization [of ESC rights]’ because the use of specific human rights indicators gives clarity to the level of compliance by states and so could prevent ‘recalcitrant States’ using the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligation of progressive realization as an ‘escape hatch’. This chapter examines this important issue with reference to the right to health. It shows that indicators play an important role in measuring and monitoring the progressive realization of the right to health. The application of the human rights-based approach to health indicators to the Reproductive Health Strategy endorsed by the World Health Assembly in May 2004 is discussed.Less
In 1993, the World Conference on Human Rights urged the examination of ‘a system of indicators to measure progress in the realization [of ESC rights]’ because the use of specific human rights indicators gives clarity to the level of compliance by states and so could prevent ‘recalcitrant States’ using the International Covenant on Economic, Social and Cultural Rights (ICESCR) obligation of progressive realization as an ‘escape hatch’. This chapter examines this important issue with reference to the right to health. It shows that indicators play an important role in measuring and monitoring the progressive realization of the right to health. The application of the human rights-based approach to health indicators to the Reproductive Health Strategy endorsed by the World Health Assembly in May 2004 is discussed.
