The Justiciability Significance of CES-Rights - Research Proposal Example

The Justiciability Significance of CES-Rights Name: Institution: I. Table of contents II. Table of contents…………………………………………………………………...2 III. Executive summary………………………………………………………………..3 1. Chapter 1…………………………………………………………………………..4 1.1. Introduction………………………………………………………………..4 1.2. Background………………………………………………………………..4 1.2.1. UN jurisdictions………………………………………………………..4 1.2.2. The CES-Rights………………………………………………………..5 1.3. Statement of the problem…………………………………………………5 1.4. Justifications……………………………………………………………….5 1.5. Research rationale…………………………………………………………6 1.6. Objectives…………………………………………………………………..6 2. Chapter 2…………………………………………………………………………..7 2.1. Methodology……………………………………………………………….7 2.2. Data collection……………………………………………………………..7 2.3. Data analysis……………………………………………………………….8 3. Chapter 3…………………………………………………………………………..8 3.1. Discussion and implications……………………………………………….8 3.2. Ethical considerations…………………………………………………….11 3.3. Conclusion………………………………………………………………...11 IV. Annotated bibliography…………………………………………………………..12 II. Executive summary This aim of this research is to look at the justifiability of CES-Rights globally. I will argue that adjudication is a fundamental requirement if the rights of many people 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. The Justiciability Significance of CES-Rights 1. Chapter I 1.1. Introduction According Agbakwa (2002), justiciability refers to the judicial legality of a given issue. In this regard, the constitution of a given country clearly outlines the provisions and limits of the given issue. Failure to honor such provisions becomes punishable by law through defined court systems. With respect to human rights, various research findings in the recent times reveal the extensive exploitation of cultural, economic and social rights (CES-Rights) of many people around the globe. Many countries are enriched with social, cultural and economic diversity such as Canada. However, in Canada there are no basic statutes that protect the practice and preservation of these diversities (Bernard, 2003). If the CES-Rights are justifiable in Canada, specific individuals will be held responsible for violating such rights under the court of law. This paper presents a proposal that contextualizes justiciability as a necessary global action of protecting CES-Rights not only in Canada, but also in all countries around the world. 1.2. Background 1.2.1. UN jurisdictions The United Nations (UN) plays a vital role in not only protecting the human rights, but also overseeing the global implementation of the same rights. It recognizes that all human rights are universal, inseparable as well as interdependent and interconnected (Hurlbert, 2011). Therefore, each country under the UN jurisdictions has the obligation to accord equal consideration for all human rights as a plan to realize equity within the respective jurisdictions. 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. 1.2.2. The CES-Rights The CES-Rights on the other hand are only recognized as mere government or state directives. Furthermore, whereas civil and political rights are accorded judicial protection, the CES-Rights are neglected. In this regard, it is clear that there exist discrepancies between international human rights norms on one hand and country level norms on the other hand. The fundamental question thus arising from this is if judicial protection is an essential component for the successful realization and protection of the CES-Rights. It also begs the question whether judicial protection can bridge the gap between the international and country level jurisdictions (Key Concepts on ESCRs, 1996). If the answer to these legal questions is on the affirmative, what role do they play in the realization of CES-Rights? 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 people around the world realize these human rights? 1.3. Statement of the problem In this paper, I will argue that the ability of the CES-Rights to be decided by legal principles is a matter of practical requisite. 1.4. Justifications The judiciary is a prolific and appropriate institution obligated to deal with laws that are incompatible as well as with discriminatory practices against people around the world. It can be argued that international monitoring systems are well equipped to achieve the same objective. However, despite this, practices observed over the years reveal that such mechanisms have their own clear defects. For this reason, it is very difficult to achieve justice without courts’ involvement in the implementation process of CES-Rights (Bernard, 2003). Arguably, courts are easily accessible to the disadvantaged and marginalized members of the society (many people around the world belong to this group). Additionally, the courts’ institutional nature gives the assurance that the decisions reached are the product of objective and rational deliberations. Also, any redress awarded by the courts is relatively easy to execute compared to international remedies. Finally, judicial involvement in CES-Rights is an essential mechanism needed to ensure that legislations and executive decisions conform to international standards (Key Concepts on ESCRs, 1996). 1.5. Research rationale I will address several questions which include: what normative arguments rationalize the need for judicial protection of CES-Rights of all people around the world? Why is judicial protection the preferred enforcement mechanism in perspective of marginalized people? What is the position of CES-Rights in the existing legal system? And what are the main challenges facing the realization of CES-Rights for all people globally and is it possible to address these challenges via courts? 1.6. Objectives The main objective will be to analyze the existing laws relating to the protection of CES-Rights and how effective they are in achieving expected results. In this regard, the specific objectives will be, first, to identify the institutions that are obligated with implementation of norms and how competent they are in addressing violated rights. Second, to evaluate the judicial practices related to the protection of CES-Rights and finally, to evaluate the peculiar responsibility of courts in accordance with CES-Rights. Chapter 2 2.1. Methodology The research will use library sources which include scholarly journals and books. 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 global human rights will then be analyzed. 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 CES-Rights of all people. These will help in reflecting on a number of research questions previously stated. 2.2. Data Collection Data will be collected from both library sources and online sources, among other sources. I will visit the university library and request for access to archived records relating to legislations, complains and treaties. They will be analyzed as regards the CES-Rights. Online sources will also be employed for documentations that are hard to come by in hard copy such as jurisprudences. 2.3. Data Analysis In analyzing the data collected, it will be connected to the theoretical and normative frameworks proposed by the research. The data analyzed 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. After analysis the collected data will be discussed contextually with regards to the necessity of the justiciability mechanism. Chapter 3 IV.1. Discussion and Implications The discussions will contextualize on prospects of the CES-Rights and the international human rights provisions. In this regard, 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 (Hurlbert, 2011). Many people are not accorded freedom of practice when it comes to CES-Rights. The same happens to civil and political rights. It is well documented that these sets of rights, political and civil rights on one hand and CES-Rights represent different generation of rights. Political and civil rights are considered first generation rights while CES-Rights are considered second generation rights. Under such representations, civil and political rights are considered justiciable rights and everybody is protected by legislations covering this area. It is because; they involve just negative commitments on countries and as such violations of these rights are easily and readily addressed in courts of law (Key Concepts on ESCRs, 1996). However, some experts are of the opinion that CES-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. The proponents of CES-Rights are however of a different opinion. They argue that nothing does exist in any form of philosophical or legal rationalization to separate 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. Other international instruments however do not separate human rights. These international instruments such as the preamble and article 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. A rather recent debate appeared to shift attention to the role played by courts in the realization of CES-Rights. Some experts have thrown their weight behind the perspective that due to the nature of these rights coupled with the obligations of countries 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 (Hurlbert, 2011). On the other hand, another group of experts are of the opinion to establish the entire human rights quality of CES-Rights; 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 countries’ conformity to obligations stipulated in covenants that they are under, it is fundamental to trust courts with full arbitration power over CES-Rights issues (Dennis & Stewart, 2004). The question of justiciability of CES-Rights is a really complex issue. 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 CES-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 people cannot successfully make a claim in domestic judicial institutions such as Canadian court systems. Courts have persistently insisted that they cannot assume jurisdiction over CES-Rights due to the fact that according to legislations, these rights are the product of state social, cultural and 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 the country 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 (Christiansen, 2006). 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 CES-Rights, the realization of these rights is far beyond from being achieved within domestic legal systems of some states. 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 people in the society. It is therefore justifiable to deal with these issues using legal research and recommend possible solution (Langford, 2008). IV.2. 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. IV.3. Conclusion This research will be a significant contribution to debates touching on the subject of justiciability of CES-Rights, more specifically on a practical perspective. Also, it will prove an important step towards evaluating the role that courts play in ensuring successful implementation of CES-Rights. Moreover, it will provide stakeholders such as government institutions and civil society organizations concerned with the promotion of CES-Rights of all people, with new policy points of view. Hence, this research will also instigate further research in the area. III. Annotated Bibliography Agbakwa, S. C. (2002). Reclaiming Humanity: Economic, Social, and Cultural Rights as the cornerstone of African human rights. Yale Hum. Rts. & Dev. LJ, 5, 177. This article argues the necessity of establishing statutes that protect CES-Rights in Africa where they are practically self-defense approaches. It will aid the research in establishing some of the common CES-Rights practiced in African continent. Bernard, N. (2003). A ‘New Governance’Approach to Economic, Social and Cultural Rights in the EU. Hervey, TK; Kenner, J. Economic and Social Rights under the EU Charter of Fundamental Rights: a Legal Perspective. Hart Publishing: Oxford-Portland Oregon, 247-268. This article explores the preferable approaches of safeguarding the CES-Rights in continent of Europe by individual countries under the European Union. It will aid the research in pinpointing the common CES-Rights in Europe and the bodies that govern their implementation. Christiansen, E. C. (2006). Adjudicating Non-Justiciable Rights: Socio-Economic Rights and the South African Constitutional Court. Colum. Hum. Rts. L. Rev., 38, 321. This article focuses on the importance of drafting constitutional statutes that protect CES-Rights in South Africa. The country hosts massive cultural and social diversity that needs protection. It will aid the research in identifying the significance of justiciability. Dennis, M. J., & Stewart, D. P. (2004). Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing, and Health?. American Journal of International Law, 462-515. This article describes the importance of forming a domestic or an international organ that oversees the equity CES-Rights alongside the constitutionalized rights. It will aid the research in identifying the necessary procedural methodologies required in collection of data. Hurlbert, M. A. (2011). Pursuing justice: an introduction to justice studies. Halifax, N.S.: Fernwood Pub.. This book explains the necessity of justice institutions in the well-being of the society. It outlines the international provisions of human rights and the responsibility of individual countries in upholding such statutes. It will aid the research by providing the basis of establishing the background of CES-Rights and the necessity for adopting justiciability systems of CES-Rights. Key Cconcepts on ESCRs. (1996). United Nations Human Rights. Retrieved October 1, 2014, from http://www.ohchr.org/EN/Issues/ESCR/Pages/CanESCRbelitigatedatcourts.aspxa This website provides the concepts of CES-Rights under the UN commission of human rights. It provides the significance of protecting the CES-Rights in all countries. It will aid the research in not only establishing the implications of protecting CES-Rights, but also in establishing the justiciability significance of CES-Rights Langford, M. (2008). The justiciability of social rights: From practice to theory. Social rights jurisprudence: emerging trends in international and comparative law, 3-45. This article links the justiciability theory and the practical applicability of the social rights. It provides the both the theoretical part of justiciability and the way of physically applying those concepts. It will aid the research in linking the justiciability of CES-Rights to the statutes of the country and the consequential significance. Melish, T. J. (2006). Rethinking the less as More Thesis: Supranational Litigation of Economic, Social, and Cultural Rights in the Americas. NYUJ Int'l L. & Pol., 39, 171. This article highlights the less addressed issues of CES-Rights in the context of American continent. It provides information on the common CES-Rights in America. It will aid the research in establishing the neglect of CES-Rights in civilized countries such as the U.S and Canada. 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 CES-Rights. It will aid the research in evaluating how the legal mandates of national institutions can be interpreted to cover CES-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. Pieterse, M. (2004). Coming to terms with judicial enforcement of socio-economic rights. South African Journal on Human Rights, 20(3), 383-417. This article provides the implications prospected from the judicial enforcement of socio-economic rights in South Africa. It provides the legal statutes that are available for protecting the socio-economic rights. It will aid the research in establishing an argumentative discussion based on the prospected implications of abdicating CES-Rights on the state level. Woods, J. M. (2003). Justiciable social rights as a critique of the liberal paradigm. Tex. Int'l LJ, 38, 763. This article focuses on the aspect of liberty with respect to justiciable social rights. It critiques the common mistake of many countries of denying the necessity of protecting CES-Rights. It will aid the research in identifying the appropriate procedures required in establishing jurisdictional CES-Rights. Yamin, A. E. (2005). The future in the mirror: incorporating strategies for the defense and promotion of economic, social and cultural rights into the mainstream human rights agenda. Human Rights Quarterly, 27(4), 1200-1244. This article provides the future picture or rather future significance of adopting methods that protect the CES-Rights the global society. It provides a wide scope that labels CES-Rights as major components of the common human rights. It will aid the research in documenting findings which various governments and non-governmental organizations can follow in the justiciability of CES-Rights. Read More