The Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System

The Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System

by Sisay Alemahu Yeshanew

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Overview

The Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System by Sisay Alemahu Yeshanew

The judicial and quasi-judicial enforceability of economic, social, and cultural (ESC) rights has long been disputed based on some flawed characterizations of the rights and concerns about the role of adjudication in addressing issues of socio-economic development. Underscoring the generally poor socio-economic conditions in most African states, this book argues that the justiciability of ESC rights in the African regional human rights system plays a subsidiary role in ensuring social justice and the accountability of public authorities in the states of the continent. The book marries theory and practice relating to the normative, institutional, and procedural aspects of the justiciability of ESC rights. It explores the actual and potential relevance of the African human rights system to the amelioration of impoverishment, disease, illiteracy, homelessness, starvation, marginalization, and other related problems that may be framed in terms of violations of ESC rights.

Product Details

ISBN-13: 9781780680873
Publisher: Intersentia
Publication date: 05/30/2013
Pages: 412
Product dimensions: 6.20(w) x 9.40(h) x 1.00(d)

Table of Contents

Preface vii

Acknowledgment xi

Abbreviations xix

Chapter 1 Introduction 1

1.1 Introducing the Subject 1

1.2 The African Economic, Social and Cultural Context in Brief 4

1.3 The African Continental Intergovernmental Response to Socio-Economic and Cultural Problems: The Justiciability of ESC rights in the African Regional Human Rights System as a Response 9

1.4 Locating the Study within Research on the Subject 17

1.5 Methodological Approaches 20

1.6 Interpretive Framework 22

1.6.1 Subsequent Practice in the African System 23

1.6.2 Relevant Rules of International Law 27

1.6.3 Travaux Preparatories 28

1.6.4 Rules of Interpretation in the African Human Rights Treaties 29

1.7 Structure and Outline of the Book 33

Chapter 2 Justiciability of Economic, Social and Cultural Rights: Concepts, Objections and Challenges 35

Introduction 35

2.1 What is Justiciability of ESC Rights? 36

2.1.1 The Concept and Argument of Justiciability 36

2.1.2 Justiciability and Remedies 42

2.2 Evaluating and Responding to Objections to the Justiciability of ESC Rights 47

2.2.1 Substantive Objections: The Nature and Formulation of ESC Rights 49

2.2.2 Jurisdictional Objections: Objections based on the Institutional Legitimacy and Competence of Judicial and Quasi-Judicial Organs 52

2.2.3 Responses to the Legitimacy and Competence Objections 54

2.2.4 Issues of Devising Substantive Remedies in ESC Rights Cases 64

2.3 Procedural Challenges to the Justiciability of ESC Rights 67

Conclusion 72

Chapter 3 The African Regional Human Rights System and Economic, Social and Cultural Rights: Genesis, Development and National Context 75

Introduction 75

3.1 The African Continental Intergovernmental Organization and Human Rights: From the OAU to the AU 76

3.2 Treaties Constituting the African Regional Human Rights System and Economic, Social and Cultural Rights 84

3.2.1 The African Charter on Human and Peoples' Rights 85

3.2.2 The African Charter on the Rights and Welfare of the Child 92

3.2.3 The Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights 95

3.2.4 The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa 98

3.3 The Protection of ESC Rights in Domestic Constitutional Systems in Africa: A Survey of African Constitutions 102

3.3.1 The Status and Enforceability of International Treaties that Protect ESC Rights 104

3.3.2 ESC Rights Protected in African Constitutions 111

3.3.3 The Judicial Enforceability of ESC Rights Protected in African Constitutions 115

Conclusion 117

Chapter 4 Judicial and Quasi-Judicial Organs for the Justiciability of Economic, Social and Cultural Rights in the African Regional Human Rights System: Mandate, Procedures and Remedies 121

Introduction 121

4.1 The African Commission on Human and Peoples' Rights 123

4.1.1 Mandate and Jurisdiction 124

4.1.2 Procedure in Individual Communications 129

4.1.3 Admissibility of Communications 132

4.1.3.1 Standing 133

4.1.3.2 Compatibility 135

4.1.3.3 Exhaustion of Local Remedies 137

4.1.4 Decisions of the Commission 139

4.1.5 Remedies and their Enforcement 142

4.1.5.1 Remedies 142

4.1.5.2 The Status of Recommendations of the Commission 150

4.1.5.3 Compliance and Follow-up 152

4.2 The African Committee of Experts on the Rights and Welfare of the Child 157

4.2.1 Mandate and Jurisdiction 158

4.2.2 Procedure for Consideration of Communications 160

4.3 The African Court on Human and Peoples' Rights / the African Court of Justice and Human Rights 162

4.3.1 Mandate and Jurisdiction 164

4.3.2 Procedure before the Court and its Judgments 170

4.3.3 The 'Complementarity' between the African Court and the African Commission 176

4.4 Concluding Remarks and Evaluation of the Effectiveness of Monitoring Organs in the African System 180

Chapter 5 The Substantive Bases for the Justiciability of Economic, Social and Cultural Rights in the African Human Rights System: The Normative Content of the Rights and the Related Obligations of States 189

Introduction 189

5.1 General Obligations of States with Regard to ESC Rights in Treaties of the African System and the Possibility of Their Restriction: General Obligations, Derogations and Limitations 191

5.1.1 General Obligations of State Parties to the Major Substantive Human Rights Treaties of the African System 192

5.1.2 Derogation and Limitation under the Three Major African Human Rights Treaties 200

5.2 The Content and Scope of ESC Rights Protected in the African Human Rights System 204

5.2.1 The Normative Content of the ESC Rights Provisions of the Three Major African Human Rights Treaties: Specific Rights and Concomitant Obligations 205

5.2.1.1 The Right to Property 206

5.2.1.2 The Right to Work 210

5.2.1.3 The Right to Health 214

5.2.1.4 The Right to Education 219

5.2.1.5 The Right to Culture 222

5.2.1.6 The Right to Protection of the Family 226

5.2.1.7 The Right to an Adequate Standard of Living 228

5.2.1.8 The Right to Development 232

5.2.1.9 The Right to a Satisfactory Environment 239

5.2.2 'Missing Rights 241

5.3 Resource-related Qualification of Obligations of States relating to ESC Rights in the African Human Rights System 247

5.3.1 Qualification of Obligations relating to ESC Rights 248

5.3.2 Qualification of Obligations under the Banjul Charter 251

5.3.2.1 The Charter's Provisions: Article 1 and Article 16 253

5.3.2.2 Travaux préparatories of the Banjul Charter 255

5.3.2.3 Role for Monitoring Organs to bridge the 'Qualification Gap' 257

5.3.3 Qualification of Duties relating to ESC Rights in the African Children's Charter and African Women's Protocol 259

5.4 Obligation to take Resource-related Measures: The Peculiarity of the African Women's Protocol, the Legal Nature of Its Article 10(3) and the Legitimacy of Its Enforcement 261

5.5 The Substantive Gaps in the African Human Rights Treaties and Possible Solutions 266

5.5.1 Utilizing Interpretative Mandate to Fill Gaps 266

5.5.2 Amendment of or Protocol to the Banjul Charter 269

Conclusion 270

Chapter 6 Approaches to the Justiciability of Economic, Social and Cultural Rights: Models of Adjudication and Proposals for the African Human Rights System 275

Introduction 275

6.1 Direct Approaches to the Justiciability of ESC Rights 277

6.1.1 The 'Minimum Core' Model 278

6.1.2 The 'Reasonableness' Model 287

6.1.3 A Model of Review Combining Minimum Core and Reasonableness 294

6.1.4 The Direct Approaches in the African Human Rights System 297

6.2 The Interdependence Approach to the Justiciability of ESC Rights 299

6.2.1 The Indivisibility, Interdependence and Interrelatedness of Human Rights: Bases of the Interdependence Approach 301

6.2.2 Vehicles of the Interdependence Approach 306

6.2.3 The Interdependence Approach in Practice 306

6.2.4 The Interdependence Approach in the African Human Rights System 311

6.2.4.1 Equality and Fair Trial Rights 312

6.2.4.2 The Substantive Interdependence of Rights 314

Conclusion 321

Chapter 7 Conclusion and Recommendations 325

7.1 Recapitulation and Appraisal 325

7.2 Recommendations 346

7.2.1 Theory 346

7.2.2 The Regional System 347

7.2.3 Monitoring Mechanisms 348

7.2.4 Substantive Norms 351

7.2.5 Models of Adjudication 353

Bibliography 355

Index 387

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