Justiciability of Minority Socio-Economic and Cultural Rights - Research Proposal Example

Essаy Prороsаl with Аnnоtаtеd Sоurсеs Нumаn Rights Author’s Name Grade course Institution Tutor Date Essay Proposal question: Justiciability an indispensable element for successful protection of the economic, social and cultural rights of minorities. Introduction This aim of this research is to look at the justifiability of economic, social and cultural right of minority groups. I will argue that adjudication is a fundamental requirement if the rights of minorities are to be protected and realized. In the sections that follow, I will clearly set out the principal research questions, preliminary legal questions and the conclusion. This will then be followed by the objectives, significance of the research as well as the methodologies to be employed. Last but not least, I will provide a brief overview of the normative and theoretical framework of the research. Legal questions At the international and regional level, it is well recognized that human rights are universal, inseparable as well as interdependent and interconnected (Newman and David 1996). What this implies then is that states have the obligation to accord equal consideration for all human rights as a plan to realize the same for minorities within respective jurisdictions (Akaermark 1997). However, a close look at the practice by most countries shows that civil and political rights are recognized by the constitution as fundamental human rights. Economic, social and cultural rights on the other hand are only recognized as government or state directives (Bahmuller 2002). Furthermore, whereas civil and political right are accorded judicial protection, economic, social and cultural rights are a sadly not. Due to this revelation, it is clear that there exist discrepancies between international human rights norms on one hand and state level norms on the other hand (Bahmuller 2002). The fundamental question thus arising from this is if judicial protection is an essential component for the successful realization and protection of the economic, social and cultural rights of minorities. It also begs the question whether judicial protection can bridge the gap between the international and state level jurisdictions. If the answer to these legal questions is on the affirmative, what role do they play in the realization of economic, social and cultural rights of minorities? What is the scope of judicial bodies’ involvement in overseeing that these fundamental human rights are implemented? In what aspects are courts’ adjudicatory powers limited with regard to their involvement in this process? If the answer is however no, then what other mechanisms exist that can aid minorities realize these human rights? In this paper, I will argue that the ability for social, economic and cultural rights of minorities to be decided by legal principles is a matter of practical requisite. The judiciary is a prolific and appropriate institution obligated to deal with laws that are incompatible as well as with discriminatory practices targeted at minorities. It can be argued that international monitoring systems are well equipped to achieve the same objective (Newman and David 1996). However, despite this, practices observed over the years reveal that such mechanisms have their own clear defects (Bahmuller 2002). For this reason, it is very difficult to achieve justice without courts’ involvement in the implementation of economic, social and cultural rights process. First and foremost, courts are easily accessible to the disadvantaged and marginalized member of the society, of which the minorities are; secondly, the courts’ institutional nature gives the assurance that the decisions reached are the product of objective and rational deliberations; thirdly, any redress awarded by the courts are relatively easy to execute compared to international remedies; lastly, judicial involvement in economic, social and cultural rights matters is an essential mechanism needed to ensure that legislations and executive decisions conform to international standards (Akaermark 1997). Research questions The following questions will be addressed: 1. What normative arguments rationalize the need for judicial protection of economic, social and cultural rights of minorities? 2. Why is judicial protection the preferred enforcement mechanism in perspective of minorities? 3. What is the position of economic, social and cultural rights in the existing legal system? 4. What are the main challenges facing the realization of economic, social and cultural rights for minorities and is it possible to address these challenges via courts? Research Objectives To analyse the existing laws relating to the protection of economic, social and cultural rights for minorities and how effective they are in achieving expected results. Identifying institutions that are obligated with implementation of norms and how competent they are in addressing violated rights. Evaluating are judicial practices related to the protection of economic, social and cultural rights. Evaluating the peculiar responsibility of courts to accord effect to the rights. Methodologies The research will use library and field research. To illustrate the general theoretical and philosophical background for the research, referred scholarly writings as well as jurisprudences will be employed. Relevant basic laws and judicial practices related to minority rights will then be analysed. To be considered also will be the reports of relevant institutions sent to monitoring organs and the reports of international bodies as well in relations to economic, social and cultural rights of minorities. These will help in reflecting on a number of research questions previously stated. Significance of the research This research will be a significant contribution to debates touching on the subject of justiciability of socio-economic and cultural rights of minorities, more specifically on a practical perspective. It will prove an important step towards evaluating the role that courts play in ensuring successful implementation of socio-economic and cultural rights of minorities. It will provide stakeholders such as government institutions and civil society organisations concerned with the promotion of socio-economic and cultural rights of minorities, with new policy points of view. This research will also instigate further research in the area. Background of the problem Despite the fact that international human rights, regarded as universal values of each and every human being, are universal, inseparable and mutually dependent, institutional practices reveal that this is not the case at all (Akaermark 1997). Minorities are not accorded equal consideration when it comes to economic, social and cultural rights as other ‘privileged’ citizens are. The same happens to civil and political rights (Bahmuller 2002). It is well documented that these sets of rights, political and civil rights on one hand and socio-economic and cultural rights on the other hand, represent different generation of rights (Akaermark 1997). Political and civil rights are considered first generation rights while socio-economic and cultural rights are considered second generation rights. Under such representations, civil and political rights are considered justiciable rights and everybody, including minorities is protected by legislations covering this area (Symonides and Vladimir 1997). This is because they involve just negative commitments on states and as such violations of these rights are easily and readily addressed in courts of law. However, some experts are of the opinion that economic, social and cultural rights are not justiciable rights. Basically, what they mean is that they are not rights as such. The base of such argument is derived from the notion that these rights relate to state initiatives and policies and therefore trying to adjudicate their violations in courts of law will lead to judicial redress contradicting the constitutional principle of separation of powers (Akaermark 1997). The proponents of economic, social and cultural rights are however of a different opinion. They argue that their does not exist any form of philosophical or legal rationalization to classify human rights into justiciable or non-justiciable sets (Office of the High Commissioner for Human Rights 2005). Human rights, all of them, are meant to solely protect human dignity. It has repeatedly been stated in this proposal as well as documented in other credible articles that human rights are universal, inseparable and interdependent. They also state that it is only in the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR) that rights are stipulated in different documents (Conde 2004). Other international instruments however do not separate human rights. These international instruments such as the preamble and art.55 (a-b) & 56 of the United Nations charter, Charter of fundamental Rights of the European Union of 2007, Convention on Elimination of All Forms of Racial Discrimination of 1965 deal with the basic human rights in a general context (Office of the High Commissioner for Human Rights 2005). Therefore classification of human rights into justiciable and non-justiciable groups does not have any legal basis other than the ideological perceptions of its proponents (Bahmuller 2002). A rather recent debate appeared to shift attention to the role played by courts in the realization of economic, social and cultural rights by minorities. Some experts have thrown their weight behind the perspective that due to the nature of these rights coupled with the obligations of states under the International Covenant on Economic, Social and Cultural Rights convention, courts are supposed to exercise partial adjudicatory power to implement non-discrimination clauses and equal access to justice of minorities (Akaermark 1997). On the other, another group of experts are of the opinion that to establish the entire human rights quality of socio-economic and cultural rights for minorities; to ensure that states and institutions match their affirmative legal responsibilities beyond what institutional organs of power would rather concede to; to offer the needed supervision mechanisms for states’ conformity to obligations stipulated in covenants that they are under, it is fundamental to trust courts with full arbitration power over economic, social and cultural rights issues (Symonides and Vladimir 1997). The question of justiciability of minority economic, social and cultural rights is a really complex issue (Akaermark 1997). On one hand, article 1 of the Universal Declaration of Human Rights recognizes the fact that “all human beings are born free and equal in dignity and rights” as much as they are universal, inseparable and interdependent, a good number of complaints have been considered in relation to violation of minority socio-economic and cultural rights (Office of the High Commissioner for Human Rights 2005). On the other hand, legal systems on the domestic front fail to recognize these rights and continue to classify them as non-justiciable and therefore aggrieved minorities cannot successfully make a claim in domestic judicial institutions (Bahmuller 2002). Courts have persistently insisted that they cannot assume jurisdiction over socio-economic and cultural rights of minorities due to the fact that according to legislations, these rights are the product of state socio-economic programs, directives and policies. It is therefore assumed that fundamental human rights stipulated in international instruments are only applicable at the regional level and not at state or institutional level. The consequential effect of this assumption is that only those people with the capacity – knowledge and financial power – can seek redress over violated human rights (Bahmuller 2002). It can thus be argued that, in spite the existence of various international as well as regional human rights instruments to address issues with the protection of socio-economic and cultural rights of minorities, the realization of these rights by minorities is far from being achieved within domestic legal systems of some states (Akaermark 1997). Basically, the objective of international human rights legislations and supervisory systems have no practical effect, whatsoever, on the rights held by an individual. This is especially true in the context of vulnerable, marginalized people in the society, most of who are minorities (Akaermark 1997). It is therefore justifiable to deal with these issues using legal research and recommend possible solution Data Collection Data will be collected from both library sources, online sources and in the field. I will visit relevant institutions and organisations and request for access to archived records relating to legislations, complains and treaties will be analysed as regards minority socio-economic and cultural rights. Online sources will also be employed for documentations that are hard to come by in hard copy such as jurisprudences. In the field, questionnaires will be prepared and issued to a sample group of minorities, civil society organisations and judiciary representative organisations. Data Analysis In analyzing the data collected, it will be connected to the theoretical and normative frameworks proposed by the research. The data analysed will be presented in a similar section of the main research to illustrate the researcher’s individual and unbiased analysis of the data collected from all the sources. Ethical considerations As with any other literary work, research essays need to conform to standardized ethical norms. This will not only strengthen the credibility of the research essay but also protects the author from any legal ramifications. To ensure that the research meets ethical standards I will see to it that all the scholarly articles referred to are properly referenced to avoid any form of plagiarism. Additionally, the identities of all those questioned through questionnaires will be kept anonymous. Annotated Bibliography Akaermark, S. (1997). Justifications of minority protection in international law. London: Kluwer Law International. This is a legal perspective of minority rights, putting forth a theoretical framework that begins with the origin of minority rights in the League of Nations through to its development under the United Nations, the Council of Europe and the Organisation for Security and Co-operation in Europe. The texts has is arranged chronologically with sequential headings and topics covering the various human rights international organisations. Office of the High Commissioner for Human Rights. (2005). Economic, social and cultural rights. Handbook for national human rights institutions. New York; Geneva: United Nations. This is an authoritative handbook by the UNHRC that evaluates how national human rights institutions can improve their effectiveness in the way that they protect economic, social and cultural rights. It evaluates how the legal mandates of national institutions can be interpreted to cover socio-economic and cultural rights within their respective jurisdictions, ways in which they can effectively use their resources, how they can execute socio-economic and cultural rights in both social and political contexts and ways their powers can be implemented more appropriately with regards to these rights. It has three sections with the first section covering the nature of socio-economic rights by analyzing the normative framework in the context of human rights, most importantly through the International Covenant on Economic, Social and Cultural Rights. Obligations of every country are outlined in the Covenant. The role of national human rights institutions and their developments and detailed in the second section. The third and last section talks about ways in which national human rights institutions can examine, address violations in order to promote socio-economic and cultural rights. Symonides, J, and Vladimir, V. (1997). Access to human rights documentation: Documentation, bibliographies and databases on human rights. 3rd ed. Paris: United Nations Economic, Scientific and Cultural Organisation. This text details English, French and Spanish dialect contents on human rights published from 1992-present. Only the United Nations Economic, Scientific and Cultural Organisation publications are from 1949. The text is divided into 5 chapters with the first focusing on publications from the UN and its specialized agencies. The second chapter talks about other international, regional and intergovernmental resources. The third, fourth and fifth chapters detail periodic as well as electronic sources. Every chapter has sub-sections organized according to organisation or topic. Despite its age, this text still offers insightful and considerable information and value. This can be attributed to the expertise of the both authors who have collaborated in publication of human rights texts numerous times. Bahmuller, C. (ed). 2002. Human rights violations. Pasadena, CA: Salem Press. This is a three volume text that contains 134 credible entries profiling key human rights violations between 1903 and 2001. These entries are arranged sequentially according to the year of report and occurrence with each entry covered in approximately seven pages. Conde, H. (2004). A handbook of international human rights terminology. 2nd ed. Lincoln: University of Nebraska Press. This text is designed to be used more by non-specialists in the field of human rights. It covers approximately 1,200 human rights terminologies as well as acronyms. Each entry is preceded by its acronym and its special terms followed by a definition. Entries are entered in alphabetical order. An appendix is also provided which details the four major human rights documents, including the International Bill of Rights. Forsythe, P. (2009). Encyclopedia of human rights. Oxford; New York: Oxford University Press. This text is the new standard in the human rights field, providing a plethora of valuable information in all its five volumes. It covers over 320 credible entries of both private and public institutions; leading figures involved in the human rights field in negative or positive ways; major events from 1945 to present; and country profiles. The entries are written by human rights experts as well as international scholars who are fully cross-referenced. Of importance, the text’s introduction gives a detailed account on the development of human rights. Newman, C. and David, W. (1996). International human rights: Law, policy, and process. 2nd ed. Cincinnati, OH: Anderson. This text is a core text book fundamental for law classes focusing on international human rights law. It is a very important introduction to human rights law, policies and process as well as international instruments at international and national (American) levels. It is divided into fifteen chapters giving a basic introduction on international human rights and on topics such as implementation of agreements and remedies, violations and ratifications. Read More