Social and Economic Rights in the Caribbean

2020 ◽  
pp. 454-481
Author(s):  
Westmin R. A. James
Keyword(s):  
International Law ◽  
Political Rights ◽  
Economic Rights ◽  
Constitutional Protection ◽  
The Caribbean ◽  
Civil And Political Rights ◽  
Commonwealth Caribbean ◽  
Economic Landscape ◽  
The Individual ◽  
The Relationship

This chapter examines socio-economic rights within the Commonwealth Caribbean by addressing a number of substantive issues- covering the range of doctrinal and socio-legal areas of inquiry. Firstly, the chapter addresses what is the substance of constitutional protection of socio-economic rights within the Commonwealth Caribbean by addressing the individual rights which receive constitutional protection throughout the region and the judicial interpretation afforded to these rights within Commonwealth Caribbean jurisprudence. This chapter will also look at the relationship between international law and domestic law in the enforceability and enforcement of socio-economic rights. The inter-relationship between international law and the protection or lack thereof of socio-economic rights within Commonwealth Caribbean legal and political thought is critically important in the absence of justiciable rights within the core of the Constitution. The chapter will then address the relationship between civil and political rights and socio-economic rights within the Caribbean constitutional milieu. The chapter will examine the approaches to civil and political, and the creative judicial approaches which have emerged regarding the indivisibility of socio-economic and civil and political rights and notions of implied enforceability will be examined. Finally, it will consider what are the judicial approaches which have emerged in Commonwealth Caribbean Constitutional interpretation; and what are the possibilities for the future. The chapter also examines the judicial approaches which have been gleaned from Caribbean Jurisprudence and the limitations such approaches may beget within the context of economic austerity and slow growth which has marked the Caribbean’s economic landscape.

scholarly journals Globalisation, the Development of Constitutionalism and the Individual Employee

2017 ◽  
Vol 10 (2) ◽  
pp. 1
Author(s):  
K Calitz
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Constitutional Rights ◽  
Private International Law ◽  
Employment Contracts ◽  
Constitutional Protection ◽  
The Individual ◽  
The Right ◽  
The Relationship

Summary To establish which legal system will govern the relationship between parties involved in an international employment contract, the rules of private international law (or conflict of laws) must be applied. Each country has its own rules of private international law and each country’s courts will apply its own rules if the court is seized with a matter that involves foreign elements.  There may be conflict between the potentially applicable legal systems of countries in terms of the level of protection afforded to employees who are parties to international employment contracts. South Africa has constitutionalised the right to fair labour practices and the question is whether this right is applicable to South African employees working in other countries, or to foreigners working in South Africa who originate from countries where this right is not protected. The answer to this question is to be found in the influence of the Constitution on the rules of private international law as applied by South African courts. It is evident from recent judgments of the Labour Court that the Court will readily assume jurisdiction and will furthermore readily hold that the proper law of the contract is South African law in order to protect the constitutional rights of employees involved in international employment contracts. Had the Labour Court held that the place of performance was still the decisive connecting factor, (as previously decided in most South African cases on thisaspect) the law of the other countries involved in the international employment relationship could have left employees in a worse position than under South African law. This possibility seems to be one of the important underlying reasons for the Labour Court’s willingness to assume jurisdiction and to hold that the proper law was in fact South African law.  In the globalisation context the Labour Court has contributed to the advancement of constitutionalism by developing South Africa’s common law rules of private international law to afford constitutional protection to employees involved in international employment contracts. 

The International Legal Personality of the Individual

2018 ◽  
Author(s):  
Astrid Kjeldgaard-Pedersen
Keyword(s):  
International Law ◽  
Legal Rights ◽  
Legal Personality ◽  
Legal Norms ◽  
State Of Affairs ◽  
The Individual ◽  
International Legal Personality ◽  
The Relationship ◽  
Second World

This book scrutinizes the relationship between the concept of international legal personality as a theoretical construct and the position of the individual as a matter of positive international law. By testing four main theoretical conceptions of international legal personality against historical and existing international legal norms that govern individuals, the book argues that the common narrative about the development of the role of the individual in international law is flawed. Contrary to conventional wisdom, international law did not apply to States alone until the Second World War, only to transform during the second half of the twentieth century to include individuals as its subjects. Rather, the answer to the question of individual rights and obligations under international law is—and always was—solely contingent upon the interpretation of international legal norms. It follows, of course, that the entities governed by a particular norm tell us nothing about the legal system to which that norm belongs. Instead, the distinction between international and national legal norms turns exclusively on the nature of their respective sources. Against the background of these insights, the book shows how present-day international lawyers continue to allow an idea, which was never more than a scholarly invention of the nineteenth century, to influence the interpretation and application of contemporary international law. This state of affairs has significant real-world ramifications as international legal rights and obligations of individuals (and other non-State entities) are frequently applied more restrictively than interpretation without presumptions regarding ‘personality’ would merit.

ACCIDENT AND DESIGN: RECOGNISING VICTIMS OF AGGRESSION IN INTERNATIONAL LAW

2021 ◽  
Vol 70 (1) ◽  
pp. 103-132
Author(s):  
Shane Darcy
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
International Criminal Court ◽  
International Criminal ◽  
Criminal Court ◽  
Future Application ◽  
Political Rights ◽  
Recent Developments ◽  
Civil And Political Rights

AbstractInternational law has not traditionally recognised individuals as victims of the crime of aggression. Recent developments may precipitate a departure from this approach. The activation of the jurisdiction of the International Criminal Court over the crime of aggression opens the way for the future application of the Court's regime of victim participation and reparation in the context of prosecutions for this crime. The determination by the United Nations Human Rights Committee in General Comment No. 36 that any deprivation of life resulting from an act of aggression violates Article 6 of the International Covenant on Civil and Political Rights serves to recognise a previously overlooked class of victims. This article explores these recent developments, by discussing their background, meaning and implications for international law and the rights of victims.

scholarly journals An Indication of China's Policy towards Uighurs and its Implications by International Law Aspects

2020 ◽  
Vol 3 (1) ◽  
pp. 55-71
Author(s):  
Mellisa Towadi ◽  
Nur Mohamad Kasim ◽  
Rumawi Rumawi ◽  
Siti Asifa Tahir
Keyword(s):  
International Law ◽  
Religious Freedom ◽  
Legal Aspects ◽  
The State ◽  
Political Rights ◽  
Individual Freedom ◽  
Main Interest ◽  
Civil And Political Rights ◽  
Democratic Principles

This article examines the Chinese government's policy towards Uighurs for the purpose of outlining and explaining indications of the policy that have implications on the legal aspects of this international law. This study was researched using normative juridical methods with expansive analysis based on logical-normative approaches. The results of the analysis show that broadly the policies China implements against the Uighur population are indicated to acts of discrimination. China's main interest is sovereignty, so of course, China will not allow the release of any territory from China. While the implications in the context of International Law as to uphold the guarantee of civil and political rights, liberal and democratic principles or independence, and individual freedom in relation to the state. The points of conflict identified, especially concerning the reach of equality of rights between ethnic Uighurs and other ethnicities in China, the prohibition of inhumane punishment and degrading dignity, and religious freedom.

Challenging the Divide: Socio-economic Rights as Human Rights

2018 ◽  
pp. 59-78
Author(s):  
Sandra Fredman
Keyword(s):  
Human Rights ◽  
Subject Matter ◽  
Political Rights ◽  
Human Right ◽  
Economic Rights ◽  
Mutual Dependence ◽  
Participative Democracy ◽  
Civil And Political Rights ◽  
Available Resources

This chapter critically examines the ways in which civil and political rights have been distinguished from socio-economic rights, including differing ideologies, subject matter; obligations, resource implications, and justiciability. Instead of such bright-line distinctions, it suggests that all rights should be seen as giving rise to a cluster of duties: to respect, protect, and fulfil. The duty to fulfil is most challenging, especially when framed as a duty of progressive realization subject to maximum available resources. Section II assesses these concepts, particularly the attempt to establish a minimum core. It concludes that a thoroughgoing acceptance of socio-economic rights requires more than the label of ‘human right’. It also entails a re-characterization of human rights values, emphasizing inter-connectedness, mutual dependence, and a substantive conception of equality. Freedom and dignity need to be refashioned to ensure that individuals have genuine choices from a range of valuable options, within a framework of participative democracy.

scholarly journals Neglecting Social and Economic Rights Violations in Transitional Justice: Long-Term Effects on Accountability: Empirical Findings from the Extraordinary Chambers in the Courts of Cambodia

2018 ◽  
Vol 37 (2) ◽  
pp. 95-124
Author(s):  
Tine Destrooper
Keyword(s):  
Human Rights ◽  
Transitional Justice ◽  
Blind Spot ◽  
Political Rights ◽  
Long Term Effects ◽  
Economic Rights ◽  
Cultural Rights ◽  
Civil And Political Rights ◽  
International Profile

This article builds on theories about the expressive function of law and uses Structural Topic Modelling to examine how the prioritisation of civil and political rights (CPR) issues by the Extraordinary Chambers in the Courts of Cambodia (ECCC) has affected the agendas of Cambodian human rights NGOs with an international profile. It asks whether these NGOs’ focus on CPR issues can be traced back to the near-exclusive focus on CPR issues by the court, and whether this has implications for the creation of a “thick” kind of human rights accountability. It argues that, considering the nature of the Khmer Rouge's genocidal policy, it would have been within the mandate and capacity of the court to pay more attention to actions that also constituted violations of economic, social, and cultural rights (ESCR). The fact that the court did not do this and instead almost completely obscured ESCR rhetorically has triggered a similar blind spot for ESCR issues on the part of human rights NGOs, which could have otherwise played an important role in creating a culture of accountability around this category of human rights. Does this mean that violators of ESCR are more likely to escape prosecution going forward?

25. Results and Prospects

2020 ◽  
pp. 681-694
Author(s):  
Bernadette Rainey ◽  
Pamela McCormick ◽  
Clare Ovey
Keyword(s):  
Human Rights ◽  
Formal System ◽  
Legal Protection ◽  
Political Rights ◽  
European Standard ◽  
Rights Protection ◽  
Civil And Political Rights ◽  
Climate Crisis ◽  
The Relationship

This chapter sums up the key findings of this study on the Convention on Human Rights (ECHR). It suggests that the principal achievement of the Convention has been the establishment of a formal system of legal protection available to individuals covering a range of civil and political rights which has become the European standard. The chapter highlights the measures taken by the Court to decrease its caseload and increase its efficiency in dealing with applications. It also highlights the contemporary challenges facing the Court, including the relationship between States and the Court, the challenge of the rise of authoritarian governments, and the threats to rights protection from the climate crisis.

Socio-Economic Rights and Their Implementation: The Impact of Domestic and International Instruments

2004 ◽  
Vol 32 (2) ◽  
pp. 243-259 ◽  
Author(s):  
Gerhard Erasmus
Keyword(s):  
Human Rights ◽  
Political Rights ◽  
Economic Rights ◽  
Personal Liberty ◽  
Legal Remedy ◽  
Basic Quality ◽  
Civil And Political Rights ◽  
The Right ◽  
International Instruments ◽  
The Impact

Socio-economic rights are those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing. They differ from traditional civil and political rights such as the right to equality, personal liberty, property, free speech and association. These “traditional human rights” are now found in most democratic constitutions and are, as a rule, enshrined in a Bill of Rights; which is that part of the Constitution that is normally enforced through mechanisms such as judicial review. The victims of the violation of such rights have a legal remedy. Individual freedom is a primary value underpinning civil and political rights.

scholarly journals Ordre du droit et droit de l'ordre

2005 ◽  
Vol 28 (3) ◽  
pp. 699-729
Author(s):  
Jacques Zylberberg
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Rule Of Law ◽  
International Organizations ◽  
The State ◽  
Political Rights ◽  
Sovereign State ◽  
The Rule Of Law ◽  
Civil And Political Rights

This essay undertakes a review of national and international law to demonstrate that law is mainly an ideological and variable instrument of the State and of the United Nations, which is a by-product of the states. In this perspective, the author opposes the pragmatical ideology of resistance against the sovereign state to the juridical legitimation and the behaviour of the States who reluctantly have conceded some civil and political rights. Those rights are endangered by the growing bureaucratization of the state, the inflation of the juridical norms and rules, in addition to the permanent repressive characters of the State. The criticism of the contradiction and the variation of the rule of law when it relates to "human rights" is also extended to international law as well as to the international organizations.

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