scholarly journals A Omissão da Jurisprudência da Corte Interamericana de Direitos Humanos em Matéria de Direitos Econômicos, Sociais e Culturais

2015 ◽  
Vol 10 (2) ◽  
Author(s):  
Monique Fernandes Santos Matos
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
Cultural Rights ◽  
Progressive Development ◽  
Low Degree ◽  
The Difference ◽  
Droit International ◽  
The Right ◽  
Economic Nature

A omissão da jurisprudência da Corte Interamericana de Direitos Humanos em matéria de direitos econômicos, sociais e culturais the Inter-American Court of Human Rights’ CASE LAW omission WITH regard TO economic, social and cultural rights Monique Fernandes Santos Matos* RESUMO: A proteção aos direitos sociais, econômicos e culturais (DESC) no Sistema Interamericano de Direitos Humanos é marcada por uma grave ambiguidade no que diz respeito à diferença entre a ampla normatização desses direitos oferecida por este sistema regional e o baixo grau de judiciabilidade e reconhecimento de suas violações pela Corte Interamericana de Direitos humanos (Corte IDH). Poucos são os casos envolvendo violações a DESC jugados pela corte, e menos ainda os que obtiveram manifestação expressa quanto a tais violações. A análise das decisões proferidas nos casos julgados pela Corte IDH envolvendo DESC apontam para uma omissão recorrente em analisar a violação ao direito ao desenvolvimento progressivo dos direitos econômicos, sociais, e culturais, o que somente tem ocorrido quando grupos em situação de especial vulnerabilidade social estão envolvidos. Tal omissão, aliada à construção jurisprudencial da corte no sentido de que a violação a tal direito somente pode ser verificado quando parte relevante da população de um Estado está envolvida, enfraquece a defesa dos DESC, e contribui para a continuidade da visão dos DESC como meras metas políticas, com caráter programático. Não abordaremos, dado aos limites desse trabalho, as questões de ordem políticas e econômicas que são latentes ao problema da baixa efetividade dos DESC. A importância do estudo da jurisprudência da Corte IDH em matéria de DESC está em possibilitar uma análise crítica do que já se construiu, sugerindo uma correção de rumos, no sentido de garantir uma proteção efetiva e, consequentemente, uma maior expansão dos DESC no contexto regional americano. PALAVRAS-CHAVE: Direito Internacional dos Direitos do Homem. Direitos Econômicos, sociais e culturais. Desenvolvimento progressivo. Corte Interamericana de Direitos Humanos. Análise de casos.  ABSTRACT: The protection of economic, social and cultural rights (ECOSOC rights) in the Inter-American System of Human Rights is marked by a serious ambiguity with regard to the difference between the broad regulation of those rights provided by this regional system and the low degree of justiciability and recognition of their violations by the Inter-American Court of Human Rights. Few cases involving violations of ECOSOC rights have been judged by the court, and even fewer have obtained express opinion to such violations. The analysis of judgments delivered in the cases judged by the ICHR involving ECOSOC rights point to a recurring failure to analyze the violation of the right to the progressive development of the ECOSOC rights, which has only occurred when groups in vulnerable situations are involved. This omission, coupled with the judicial construction of the court that the violations of such right can only be checked when the relevant part of the population of a State is concerned, weakens the defense of the ECOSOC rights, and contributes to the continuity of the vision of them as mere policies, with programmatic character. We will not cover, given the limits of this work, issues of political and economic nature that are latent to the problem of low effectiveness of the ECOSOC rights. The relevance of the ICHR’s case law study regarding the ECOSOC rights lies on enabling a critical analysis of what has already been built, suggesting a course correction, in the sense to ensure an effective protection and, consequently, a greater expansion of the ECOSOC rights in the American regional context. KEYWORDS: International Law of Human Rights. Economic, social and cultural rights. Progressive development. Inter-American Court of Human Rights. Study of cases. * Doutoranda em Direito das Relações Internacionais pelo Centro Universitário de Brasília (UniCEUB). Mestre em Direito das Relações Internacionais pelo Centro Universitário de Brasília. Pesquisadora visitante no IREDIES - Institut de recherche en droit international et européen de la Sorbonne (Université Paris 1, 2014-2015).  Juíza do Trabalho Substituta  do Tribunal Regional do Trabalho da 5ª. Região.

scholarly journals Conflict over Conflict: The Right to Strike in International Law

2017 ◽  
Vol 8 (1) ◽  
Author(s):  
Diane F Frey
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Human Rights Law ◽  
Political Rights ◽  
International Labour Organisation ◽  
International Human Rights ◽  
Cultural Rights ◽  
Human Rights Treaties ◽  
International Human ◽  
The Right

<p>The existence of a right to strike under international law has been challenged by the International Organization of Employers since the late 1980s. The employer group claims that no such right exists under international law and has been moving to undermine recognition of the right at the International Labour Organisation (ILO). This article examines the right to strike in international human rights law. It considers specifically the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) and finds that the right to strike exists in both of these treaties. Further, the article demonstrates that while the ILO employers group may challenge the existence of the right to strike, its government members have overwhelmingly ratified international human rights treaties contradicting the employer group's position that there is no such right.</p>

scholarly journals Linkage between Right to Development and Rights-based Approach: An Overview

2014 ◽  
Vol 1 ◽  
pp. 96-111 ◽  
Author(s):  
Khandaker Farzana Rahman
Keyword(s):  
Human Rights ◽  
Poor People ◽  
Cultural Rights ◽  
Progressive Development ◽  
Global Partnership ◽  
Right To Development ◽  
New Concepts ◽  
Rights Discourse ◽  
Policies And Programs ◽  
The Right

The concept of right to development has been inserted into the rights discourse quite recently, though it was known earlier that theg proper implementations of human rights tend to secure the life standard and progressive development of the community. New concepts of development expressed its concern for the overall betterment of human being.1 Right to Development (RTD) is being recognized as a collective right in the human rights arena. On the other hand, Rights Based Approach (RBA) has an inseparable link with right to development which seeks for the identification of issues to make a need based assessment. In brief, a human-rights approach translates poor people’s needs into rights, and recognizes individuals as active subjects and stakeholders. It further identifies the obligations of states that are required to take steps – for example through legislation, policies and programs with a view to respect, promote and fulfill the human rights of all people within their jurisdiction.2 RBA addresses rights based issue to achieve goals adopted by MDG, like alleviating poverty, promoting education, ensuring gender equality and empowerment of the women, developing a global partnership for development etc. In this article, the right to development is being tried to accurately affiliate with the framework known as Rights Based Model with a view to characterizing a successful coordination between the two. Thus if the states intend to adjust their methods of functioning and fulfill their obligations to the beneficiaries according to the rights based model, the recognized human rights such as economic, social, cultural rights involved in human development would be enjoyed and respected by an individual irrespective of his class, group, origin and any other attributes. DOI: http://dx.doi.org/10.3329/nujl.v1i0.18528 Northern University Journal of Law Vol.1 2010: 96-111

scholarly journals Does the exclusion of a right to basic sanitation in international law impede its legal enforcement?

2019 ◽  
Vol 23 ◽  
Author(s):  
Siyambonga Heleba
Keyword(s):  
Human Rights ◽  
United Nations ◽  
International Law ◽  
Rural Populations ◽  
International Organisations ◽  
Cultural Rights ◽  
Legal Enforcement ◽  
The World ◽  
Basic Sanitation ◽  
The Right

ABSTRACT Despite expressly providing for a number of rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) sadly omits the right to basic sanitation. This is a matter of concern as figures released by United Nations agencies and other international organisations paint a bleak picture of the levels of provision (or lack thereof) of basic sanitation around the world. They demonstrate huge and growing disparities in relation to the provision of basic sanitation facilities between urban and rural populations. International law has certainly not helped the situation by omitting this important right in key human rights instruments such as the ICESCR This is also manifested in the tendency by many governments to separate basic sanitation from the right to water. The article argues, however, that this fact alone should not hinder the legal enforcement of this right. Keywords: Basic sanitation, global picture, international law, human rights, legal enforcement

scholarly journals The Implementation of Economic, Social and Cultural Rights in Canada: Between Utopia and Reality

2021 ◽  
Vol 7 (1) ◽  
pp. 26
Author(s):  
Miriam Cohen ◽  
Martin-Olivier Dagenais
Keyword(s):  
Human Rights ◽  
Case Law ◽  
Right To Health ◽  
Smooth Transition ◽  
Social Fabric ◽  
Cultural Rights ◽  
International Obligation ◽  
International Obligations ◽  
To Come ◽  
The Right

Canada has been at the forefront of the recognition of human rights, including economic, social and cultural rights (ESC rights) in the international scene. As a party to the International Covenant on Economic, Social and Cultural Rights,1 Canada has, over the years, implemented in legislation and case-law some ESC rights such as the right to health, education and social welfare.While ESC rights were not explicitly identified in the Charter of Rights and Freedoms,2 which forms part of the Canadian Constitution, ESC rights in different forms have received some protection in the Canadian legal order. An analysis of the Canadian record with respect to ESC rights demonstrates the immense gap between a glorified image of Canada as an international human rights proponent (the ‘utopia’) and the actual implementation of internationally recognized human rights in Canada (the ‘reality’). As Canada is bound to face major transformational changes to its economy and social fabric in the years to come, the Courts will have to adapt quickly and efficiently to ensure a smooth transition. This paper overviews the evolution of the case-law on ESC rights in Canada in light of its international obligations, and suggests, the relevant ESC rights jurisprudence signals a disconnect with Canada’s international obligation ‘requiring progressive implementation to the maximum of available resources by all appropriate means.’

scholarly journals Dignifying, Restoring, and Reimagining International Law and Justice Through Connections with Arts and Culture

AJIL Unbound ◽  
2020 ◽  
Vol 114 ◽  
pp. 108-110
Author(s):  
Karima Bennoune
Keyword(s):  
Human Rights ◽  
Cultural Heritage ◽  
International Law ◽  
Cultural Practices ◽  
Cultural Rights ◽  
Universal Human Rights ◽  
Cultural Expressions ◽  
Law And Justice ◽  
The Right ◽  
Key Aspects

This symposium provides a critical opportunity for international legal scholars to engage with the value and power of certain aspects of culture. The successive holders of the UN mandate on cultural rights have declined to define culture, instead taking a holistic, inclusive approach to its meanings, including inter alia diverse forms of artistic and cultural expressions, languages, worldviews, practices, and cultural heritage. Cultural rights—including the right to take part in cultural life without discrimination, the right to access and enjoy cultural heritage, and freedom of artistic expression—are a core part of the universal human rights framework. They are vital in and of themselves and protect key aspects of the human experience, but they have also been increasingly recognized as important elements of accessing justice and responding to atrocities and as “fundamental to creating and maintaining peaceful and just societies and to promoting enjoyment of other universal human rights.” The artistic and cultural expressions which result from the exercise of these rights likewise have inherent value and can also play significant roles in achieving basic goals of international law and human rights. As I noted in a report to the UN Human Rights Council in my capacity as UN Special Rapporteur in the field of cultural rights:Humanity dignifies, restores and reimagines itself through creating, performing, preserving and revising its cultural and artistic life . . . . Cultural heritage, cultural practices and the arts are resources for marshalling attention to urgent concerns, addressing conflicts, reconciling former enemies, resisting oppression, memorializing the past, and imagining and giving substance to a more rights-friendly future.

scholarly journals الموازنة بين النظام الإسلامي والنظام الدولي في تقرير السيادة كوسيلة لنظام الحكم

2020 ◽  
Vol 23 (1) ◽  
pp. 312-331
Author(s):  
Ali Muamar Farhat
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Islamic Law ◽  
Full Description ◽  
Cultural Rights ◽  
Similarities And Differences ◽  
The Rich ◽  
The Difference ◽  
Political Economic

Islamic law stipulated the principles which regulate the relations between Individuals within their countries and externally with the other countries. These principles include the principles of human rights and sovereignty. This study tackles the idea of establishing the balance between the Islamic system and international law by identifying their similarities and differences within the framework of the principles of both the human rights and the sovereignty. The study aimed to identify the rich Islamic rules in the field of international relations, clarify the concept of human rights and the theory of sovereignty in the Islamic system and international law, highlight the rules of the Islamic system in this area, and prove the complementarities and convergence, as well as difference and similarity with international law. The researcher adopted the descriptive analytical method to give a full description of the two principles of human rights and sovereignty in the Islamic system and international law. He concluded with the most important results that the Islamic system has the lead in the adoption of these principles and abidance by them, before the international law. The Islamic system is similar to international law in the context of human rights and the need to protect them and also the implications of rights in general international law, both at the levels of political, economic, social or cultural rights. The only difference lies in the fact that the Islamic system emanates from the rules of Islamic sharia’s teachings and values whereas the international law considers the society the source of rights. As to sovereignty, the study confirmed that the theory of sovereignty is well known in the Islamic system, and that this principle represents one of the basic rules organizing relations between individuals and states equally, but the difference lies in the frame of reference of the Islamic system and the International law. In the Islamic system, the organizing rules refer to the Islamic Shariah whereas in the International law, there is relation between religion with those rules.  

scholarly journals Cultural heritage: Right, identity and dignity: Right of access to and enjoyment of cultural heritage as a human right

2020 ◽  
Vol 54 (4) ◽  
pp. 1210-1259
Author(s):  
Branko Rakić
Keyword(s):  
Human Rights ◽  
Cultural Heritage ◽  
International Law ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Human Right ◽  
Cultural Rights ◽  
Heritage Protection ◽  
The Right ◽  
Right Of Access

In international human rights law established after World War Two, one of cultural rights that has been traditionally most neglected out of five categories of human rights (civil, political, economic, social and cultural rights), is the right to participation in cultural life, while its segment, by the nature of things, is also the right of access to and enjoyment of cultural heritage. Although international human rights law thus establishes the basis for treating the right of access to and enjoyment of cultural heritage as a human right, international acts dealing with the matters of cultural heritage protection have had a long-prevailing approach in which cultural goods were protected because of their inherent value. It was only recently, with the emerging needs and interests in respect of the safeguarding of cultural diversity and protection of intangible cultural heritage, that the emphasis began to be placed on the relationship, including the legal one, between cultural heritage and human communities, groups and individuals with a special subjective attitude towards it. That is how the human-rights based system of cultural heritage protection was gradually established and the segment of international law dealing with human rights was brought closer to the segment dealing with cultural heritage. In order to consider a right as a human right, apart from the will of law-makers to be like that, it also requires the existence of certain values which constitute the basis for it and which should be safeguarded through the protection of that human right. An understanding deriving from a series of international legal acts and being widespread in theory is that, when it comes to cultural rights, including the right of access to and enjoyment of cultural heritage, such basis is constituted by identity, first of all cultural identity, and human dignity. Therefore, although the foundation is laid for the right of access to and enjoyment of cultural heritage to be treated as a human right, it is necessary to clarify and elaborate, at the legal level, a number of questions which should ensure effective enjoyment of this right. The task is in the hands of states, either as participants in the adoption of international law acts or as national law-makers, so the question remains open as to the nature of their attitude to further development of the human-rights based system of cultural heritage protection.

الموازنة بين النظام الإسلامي والقانون الدولي في مبدئي حقوق الإنسان والسيادة

2019 ◽  
Vol 7 (2) ◽  
Author(s):  
ALI MUAMAR FARHAT ◽  
Ruzman Md Noor
Keyword(s):  
Human Rights ◽  
International Relations ◽  
International Law ◽  
Islamic Law ◽  
Full Description ◽  
Cultural Rights ◽  
Similarities And Differences ◽  
The Rich ◽  
The Difference ◽  
Political Economic

Islamic law stipulated the principles which regulate the relations between Individuals within their countries and externally with the other countries. These principles include the principles of human rights and international sovereignty. This study tackles the idea of establishing the balance between the Islamic system and international law by identifying their similarities and differences within the framework of the principles of both the human rights and the sovereignty. The study aimed to identify the rich Islamic rules in the field of international relations, clarify the concept of human rights and the theory of sovereignty in the Islamic system and international law, highlight the rules of the Islamic system in this area, and prove the complementarities and convergence, as well as difference and similarity with international law. The researcher adopted the descriptive analytical method to give a full description of the two principles of human rights and sovereignty in the Islamic system and international law. He concluded with the most important results that the Islamic system has the lead in the adoption of these principles and abidance by them, before the international law. The Islamic system is like international law in the context of human rights and the need to protect them and the implications of rights in general international law, both at the levels of political, economic, social or cultural rights. The only difference lies in the fact that the Islamic system emanates from the rules of Islamic sharia’s teachings and values whereas the international law considers the society the source of rights. As to sovereignty, the study confirmed that the theory of sovereignty is well known in the Islamic system, and that this principle represents one of the basic rules organizing relations between individuals and states equally, but the difference lies in the frame of reference of the Islamic system and the International law. In the Islamic system, the organizing rules refer to the Islamic Shariah whereas in the International law, there is relation between religion with those rules.

The Notion of “Reasonable” in International Law: Legal Discourse, Reason and Contradictions

1999 ◽  
Vol 48 (3) ◽  
pp. 613-625 ◽  
Author(s):  
Olivier Corten
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal Discourse ◽  
Case Law ◽  
European Convention ◽  
Reasonable Time ◽  
The Right

Far from being confined to its most obvious manifestations, such as in the right to be tried within a “reasonable time” guaranteed by Articles 5 and 6 of the European Convention on Human Rights, references to the notion of “reasonable” are found in a large variety of primary rules pronounced in both legal instruments and the case law.1

scholarly journals Legitimate limitations on the right of freedom of thought, conscience and religion: the challenges of a globalised world

2020 ◽  
Vol 3 ◽  
pp. 56-63
Author(s):  
Yulia Fysun
Keyword(s):  
Human Rights ◽  
International Law ◽  
Case Law ◽  
European Court ◽  
Freedom Of Thought ◽  
The Right

The article is devoted to the study of the limitations on the right of freedom of thought, conscience and religion provided by international law. The essential criteria for legitimate limitations are determined. Unconditional protection of the freedom of thought and conscience as well as the freedom to have or adopt a religion or belief of one’s choice is emphasised. Particular attention is paid to the study of the case law of the European Court of Human Rights in this field.

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