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A interpretação constitucional evolutiva e a cidadania social: elementos para uma hermenêutica jurisdicional de implementação efetiva dos direitos fundamentais trabalhistas; Evolving constitutional interpretation and social citizenship: elements for a judicial hermeneutics of effective implementation of fundamental labor rights

Barros, Juliana Augusta Medeiros de
Fonte: Biblioteca Digitais de Teses e Dissertações da USP Publicador: Biblioteca Digitais de Teses e Dissertações da USP
Tipo: Tese de Doutorado Formato: application/pdf
Publicado em 18/05/2012 Português
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Os direitos sociais são fruto das lutas dos indivíduos por melhores condições de trabalho e de vida ao longo dos séculos XVIII e XIX, embora os direitos mínimos dos trabalhadores somente tenham sido sistematicamente inseridos nas Constituições e albergados pelos diplomas internacionais ao no decorrer do século XX. No Brasil, os direitos fundamentais do trabalhador foram elencados na Constituição Federal de 1934 e, a partir de então, foram sendo ampliados até a Constituição Federal de 1988, nomeada de cidadã, que inaugurou um marco na constitucionalização desses direitos sociais, integrando-os efetivamente ao rol dos direitos fundamentais, conferindo-lhes aplicabilidade imediata e natureza de cláusulas pétreas. Toda essa sistemática traçada pelo legislador constituinte exige que os aplicadores do Direito tratem esses direitos trabalhistas como realmente fundamentais, inclusive no que tange às questões relativas à eficácia jurídica, efetividade e aplicabilidade. Ao lado do dilema da falta de efetividade das normas que estabelecem esses direitos, pela cultura de seu descumprimento reiterado pelos empregadores, existe outro problema igualmente grave: a ausência de implementação ou a implementação restritiva de vários direitos fundamentais trabalhistas...

Direitos fundamentais: uma tomada de posição dos direitos sociais no sistema constitucional; Fundamental rights: taking a position on social rights in the constitutional system

Alves, Rodrigo Vitorino Souza
Fonte: Universidade Federal de Uberlândia Publicador: Universidade Federal de Uberlândia
Tipo: Dissertação
Português
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Com o presente trabalho pretende-se examinar os direitos fundamentais e a forma de sua consagração na Constituição brasileira de 1988, com ênfase no problema dos direitos sociais, buscando-se esclarecer quais são os parâmetros para a proteção judicial dos direitos sociais a prestações. Para tanto, a dissertação encontra-se estruturada em três capítulos, partindo de considerações abrangentes sobre os direitos fundamentais para um estudo específico dos direitos sociais. Apresenta-se o perfil histórico dos direitos fundamentais no primeiro capítulo, indicando suas principais fontes e descrevendo como foi seu desenvolvimento. No segundo capítulo, são estudados importantes aspectos dos direitos fundamentais, relacionados ao conceito e à classificação desses direitos, bem como à estrutura e à eficácia das normas que os definem. Explora-se, no terceiro capítulo, especificamente os direitos sociais, apreciando questões relacionadas ao conceito e à fundamentalidade desses direitos, ao problema da eficácia de suas normas e, finalmente, aos parâmetros para a sua justiciabilidade. No que diz com o método utilizado, uma vez que o trabalho é desenvolvido no campo da história do direito e do pensamento jurídico...

Rights in Asylum Sharing and Other Human Transfer Agreements

Clark, Tom; Crépeau, François
Fonte: Netherlands Quarterly of Human Rights Publicador: Netherlands Quarterly of Human Rights
Tipo: Artigo de Revista Científica Formato: 221947 bytes; application/pdf
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The article sets out the concept of a State-to-State human transfer agreement of which extradition and deportation are specialised forms. Asylum sharing agreements are other variations which the article explores in more detail. Human transfer agreements always affect at least the right to liberty and the freedom of movement, but other rights will also be at issue to some extent. The article shows how human rights obligations limit State discretion in asylum sharing agreements and considers how past and present asylum sharing arrangements in Europe and North America deal with these limits, if at all. The article suggests changes in the way asylum sharing agreements are drafted: for example, providing for a treaty committee would allow existing agreements to better conform to international human rights instruments and would facilitate State compliance to their human rights obligations.

Human Rights and Climate Change : A Review of the International Legal Dimensions

McInerney-Lankford, Siobhan; Darrow, Mac; Rajamani, Lavanya
Fonte: World Bank Publicador: World Bank
Português
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The study includes a conceptual overview of the link between climate impacts and human rights, focused on the relevant legal obligations underpinning the international law frameworks governing both human rights and climate change. As such it makes a significant contribution to the global debate on climate change and human rights by offering a comprehensive analysis of the international legal dimensions of this intersection. The study helps advance an understanding of what is meant, in legal and policy terms, by the human rights impacts of climate change through examples of specific substantive rights. It gives a legal and theoretic perspective on the connection between human rights and climate change along three dimensions: first, human rights may affect the enjoyment of human rights. Second, measures to address human rights may impact the realization of rights and third, that human rights have potential relevance to policy and operational responses to climate change, and may promote resilience to climate change...

Human Rights Indicators in Development : An Introduction

McInerney-Lankford, Siobhan; Sano, Hans-Otto
Fonte: World Bank Publicador: World Bank
Português
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Human rights indicators are central to the application of human rights standards in context and relate essentially to measuring human rights realization, both qualitatively and quantitatively. They offer an empirical or evidence-based dimension to the normative content of human rights legal obligations and provide a means of connecting those obligations with empirical data and evidence and, in this way, relate to human rights accountability and the enforcement of human rights obligations. Human rights indicators are important for both assessment and diagnostic purposes: the assessment function of human rights indicators relates to their use in monitoring accountability, effectiveness, and impact; the diagnostic purpose relates to measuring the current state of human rights implementation and enjoyment in a given context, whether regional, country-specific, or local. This paper offers a preliminary review of the foregoing in the development context and a general perspective on the significance of human rights indicators for development processes and outcomes. It is not intended to be prescriptive and does not provide specific operational recommendations on the use of human rights indicators in development projects. Nor does it advocate a particular approach or mode of integrating human rights in development or argue for a rights-based approach to development. This paper is designed to provide development practitioners with a preliminary view on the possible relevance...

Human Rights Based Approaches to Development Concepts, Evidence, and Policy

Gauri, Varun; Gloppen, Siri
Fonte: Banco Mundial Publicador: Banco Mundial
Português
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This paper assesses the benefits, risks, and limitations of human rights based approaches to development, which can be catalogued on the basis of the institutional mechanisms they rely on: global compliance based on international and regional treaties; the policies and programming of donors and executive agencies; rights talk; and legal mobilization. The paper briefly reviews the politics of the first three kinds of human rights based approaches before examining constitutionally based legal mobilization for social and economic rights in greater detail. Litigation for social and economic rights is increasing in frequency and scope in several countries, and exhibits appealing attributes, such as inclusiveness and deliberative quality. Still, there are potential problems with this form of human rights based mobilization, including middle class capture, the potential counter-majoritarianism of courts, and difficulties in compliance. The conclusion summarizes what is known, and what remains to be studied, regarding human rights based approaches to development.

Human Rights as Demands for Communicative Action

Gauri, Varun; Brinks, Daniel M.
Fonte: Banco Mundial Publicador: Banco Mundial
Português
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A key issue with human rights is how to allocate duties correlative to rights claims. But the philosophical literature, drawing largely on naturalistic or interactional accounts of human rights, develops answers to this question that do not illuminate actual human rights problems. Charles Beitz, in recent work, attempts to develop a conception of human rights more firmly rooted in, and helpful for, current practice. While a move in the right direction, his account does not incorporate the domestic practice of human rights, and as a result remains insufficiently instructive for many human rights challenges. This paper addresses the problem of allocating correlative duties by taking the practices of domestic courts in several countries as a normative benchmark. Upon reviewing how courts in Colombia, India, South Africa, Indonesia, and elsewhere have allocated duties associated with socio-economic rights, the paper finds that courts urge parties to move from an adversarial to an investigative mode, impose requirements that parties argue in good faith...

International Protection of Human Rights: A Textbook

Fonte: Åbo Akademi University Institute for Human Rights Publicador: Åbo Akademi University Institute for Human Rights
Tipo: Livro
Português
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This textbook presents the main universal and regional systems and standards for the international protection of human rights, also taking note of recent changes in procedure together with substantive developments in the field of human rights law. In addition to the United Nations at the universal level, it outlines the existing regional protection systems in Europe, Africa and the Americas as well as bringing for the discussion pertaining to human rights law in Asia and the Arab countries. Moreover, the various means for domestic implementation of human rights law are covered, and attention is drawn to the role of non-governmental organizations in the protection of human rights. This volume is not limited to human rights law in the strict sense, but rather places human rights within a wider context of public international law as well as philosophy. The primary target group for this textbook are Master’s level students in law schools and specialized Master’s programmes in international law or human rights law, but the book may also appeal to more advanced human rights researchers and professors teaching human rights topics.; I. The Foundations of Human Rights 1. Philosophical and Historical Foundations of Human Rights (Heiner Bielefeldt) 2. Characteristics of Human Rights Norms (Martin Scheinin) 3. The Status of Human Rights in International Law (Olivier De Schutter) II. United Nations Standards and Mechanisms 4. The United Nations and Human Rights (Hurst Hannum) 5. United Nations Charter-Based Protection of Human Rights (Andrew Clapham) 6. Civil and Political Rights (Sir Nigel Rodley) 7. Economic...

Diversity of Social Rights in Europe(S) Rights of the Poor, Poor Rights

University Paris Ouest Nanterre - European University Institute Social Law Working Group
Fonte: Instituto Universitário Europeu Publicador: Instituto Universitário Europeu
Tipo: Trabalho em Andamento Formato: application/pdf; digital
Português
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A mainstream view of the rule of the law has denied for a long time that social rights are “real” rights. Referred to as “the rights of the poor”, Social and Economic Rights have been often thought as “poor rights”. Lawyers and judges often distinguish between social and civil rights, albeit human rights have been affirmed, since 1948, to be indivisible and interdependent. The distinction between civic and political rights on the one hand, and economic and social rights, on the other hand, often results in casting aside the social rights and prevent them from being justiciable. However, the academic debate about judicial enforcement of social rights is undergoing changes. The divide between the fundamental rights tends to be questioned by social movements which do not hesitate anymore to take legal actions and claim those social rights (the right to housing, to food, to health care…), as well as by a number of academic researchers who try to rethink the universality and indivisibility of human rights. That trend is followed by judges, international ones as well as national ones, who help with such decisions to strengthen the justiciability, effectiveness and opposability of social rights. The subject of the following contributions is this current trend of justiciability and enforcement of social rights in Europe. This working paper draws attention to and scrutinize the academic debate and the jurisdictional answers concerning the nature and regime of social rights through the use of comparative and international law. Rights are studied in UK (W. Baugniet)...

Displacement and Dispossession: Forced Migration and Land Rights in Burma

South, Ashley
Fonte: The Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland Publicador: The Centre on Housing Rights and Evictions (COHRE), Geneva, Switzerland
Tipo: Outros
Português
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Burma today is experiencing a crisis in security of land tenure, which includes the widespread abuse of human, economic, social, cultural, and political rights. This report, 'Displacement and Dispossession: Forced Migration and Land Rights in Burma' focuses on land confiscation by Government forces, responsible for Burma’s most acute Housing, Land and Property (HLP) rights abuses. Among the most vulnerable populations are more than one million internally displaced people in Burma, most from ethnic nationality communities. These include at least 500 000 people in the armed conflict-affected border regions of eastern Burma. ¶ This report focuses on the ongoing abuses of HLP rights occurring under military rule today, particularly in areas populated by non-Burman peoples. In recent years, the peoples living in these areas have been the most severely affected by large-scale displacement. These abuses occur during military counter-insurgency operations; for the construction and support of new army battalions; to make way for infrastructure development projects; in the context of natural resource extraction; and to provide vested interests with business opportunities. ¶ When addressing land rights issues, it is important to recognise that indigenous peoples such as Burma’s ethnic nationalities enjoy a special relationship with the land. In Burma...

Greening the proposed Australian Capital Territory Bill of Rights

Anton, Donald
Fonte: Universidade Nacional da Austrália Publicador: Universidade Nacional da Austrália
Tipo: Working/Technical Paper Formato: 665933 bytes; 376 bytes; application/pdf; application/octet-stream
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Overview: As a matter of principle, ACEL-ANU strongly supports the establishment of an entrenched Bill of Rights1 that establishes enforceable civil, political, economic, social and cultural rights within the ACT as outlined within the Committee's terms of reference. Some of the most compelling and cogent reasons and persuasive arguments for taking such action in the face of reasoned resistance can be found in influential texts by Philip Alston, Hilary Charlesworth, Bede Harris, and George Williams - amongst others - and will not be rehearsed in any detail in this submission. Suffice that it to say here that the ideas of individual liberty and human rights have been the grand innovation of the state under the rule of law, at first as moral imperatives and later through establishment by law. As experience has made plain, however, "without a political guarantee of legal recourse, there are no individual rights but only pious profession of the value of human beings". Accordingly, it is only by recognising rights as elements of law - through protection, for example, by a Bill of Rights - that those rights serve as an effective limit on power under the rule of law. By establishing a Bill of Rights a society protects its members against in at least two ways. First...

Observations on the Rules of the African Court on Human and Peoples' Rights

Naldi,Gino J
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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The African Court on Human and Peoples' Rights was established by the 1998 Protocol to the African Charter on Human and Peoples' Rights. On 2 June 2010, its Rules of Court came into force. Rules of procedure are designed to supplement and fill in any gaps in the parent treaty. They are an essential part of the workings of many international bodies, including judicial organs.These Rules, which have a bearing on important aspects of the Court's functioning, are discussed in this article. The article does not undertake an exhaustive analysis of the whole set of Rules; it focuses on those Rules that may help to clarify or not, as the case may be, any obscurities or difficulties associated with the parent Protocol. The contribution covers the Rules pertaining to the composition of the African Human Rights Court; the Court's contentious procedure; and the Court's advisory opinions mandate. In the discussion, the Court's Rules are linked to those of the African Commission on Human and Peoples' Rights. The analysis concludes that the Rules of Court of the African Human Rights Court largely correspond to those of other regional courts. Although there are gaps and omissions, the Court has embarked on a process of addressing these issues through its jurisprudence...

Implementing environmental rights in Kenya's new constitutional order: Prospects and potential challenges

Bosek,Joel Kimutai
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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Since independence, the process of implementing environmental rights in Kenya has encountered a myriad of challenges. For example, until about a decade ago, the country never had any law or policy specifically designed to address violations of environmental rights. Litigants had to resort generally to the law of contract and tort to redress environmental breaches. Environmental matters were strictly private law affairs that were of less concern to the main branches of public law. Worse still, Kenya's environmental law regime was characterised by the existence of a variety of sectoral laws dealing with specific issues related to environmental conservation, improvement and protection. The promulgation of a new Constitution in August 2010 signifies a paradigm shift in so far as the implementation of environmental rights is concerned. In contrast to its predecessor, the 2010 Constitution of Kenya strengthens the implementation of environmental rights. In particular, it significantly expands the scope of fundamental rights as well as their enforcement mechanisms. The article evaluates how the new Constitution deals with the question of the implementation of environmental rights in Kenya. It reviews the efficacy of both the normative and institutional mechanisms put in place to implement environmental rights. It also highlights the potential challenges to the enforcement of these rights in the country. As a way forward...

Judicial enforcement of socio-economic rights in South Africa and the separation of powers objection: The obligation to take 'other measures'

Ngang,Carol C
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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The framework for constitutional democracy in South Africa assigns to the courts a pivotal role in assuring effective protection and translation of the range of entrenched socio-economic rights into material entitlements. This has enabled the courts in some instances to exercise considerable authority that has significantly influenced policy to the extent that power relations between the judiciary and the political arms of government have been threatened. Proponents of the doctrine of the separation of powers have expressed concerns, claiming that the meddling of the courts in the domain of policy making is politically incorrect. Consequently, the judicial enforcement of socio-economic rights has increasingly suffered setbacks, which to a large extent have retarded the constitutional vision of social transformation. Thus, in spite of South Africa's acclaimed global leadership in the enforcement of socio-economic rights, little has actually been accomplished in terms of improving the livelihood for victims of socio-economic deprivation. Considering that the enforcement of socioeconomic rights is context-specific, I question the rationale for avoiding a 'jurisprudence of exasperation', which demonstrates greater potential to produce transformative outcomes than the preferred 'jurisprudence of accountability' which has shown little transformative effect. Just as the realisation of socio-economic rights through political strategies amounts to material entitlement...

Women's health and human rights: Public spending on health and the military one decade after the African Women's Protocol

Klugman,Jeni
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa has been hailed for its efforts to promote women's health and rights.. The Protocol has now been signed and ratified by approximately two-thirds of African Union member states, from the most populous and largest to the smallest countries on the continent. The Protocol envisages major steps to improve the status of women on the continent, from economic opportunities and food security through to marriage and the rights of widows. This article seeks to contribute to the emerging literature on gender, health and rights, by exploring how government commitments to the health mandates of the Women's Protocol have transpired in practice, one decade after its enactment, with a focus on resource allocations. The article's scope includes a review of why sexual and reproductive rights matter, intrinsically, as rights, and evidence about their instrumental importance for development. Available evidence about status and trends in women's health in Africa is presented, highlighting some advances as well as major shortcomings. This is the important empirical background against which to explore the human rights obligations of African states on this front...

The protection against discrimination based on sexual orientation under the African human rights system

Rudman,Annika
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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Recent legislation proposed or passed in Nigeria, Uganda and The Gambia has put the spotlight on the plights of homosexual persons living in sub-Saharan Africa. In Nigeria, discriminatory laws prohibit same-sex marriages and ban gay clubs and organisations. In Uganda, the Prohibition of the Promotion of Unnatural Sexual Practices Bill of 2014, with contents similar to the notorious Anti-Homosexuality Act, is being considered after a ruling by the Ugandan Constitutional Court rendering the Anti-Homosexuality Act unconstitutional. In The Gambia, the Penal Code has been amended recently to add the crime of 'aggravated homosexuality' with a lifetime prison sentence for any person found guilty. The rights to dignity and equality are protected under the African Charter on Human and Peoples' Rights; however, competing local and global values are arguably growing in Africa, challenging this right. This article explores two main problems: first, how the rights to dignity, equality and non-discrimination should generally be interpreted and applied under the regional African human rights system when related to sexual orientation. In this regard I draw on the interpretation of these rights under international human rights law as well as the jurisprudence of the European Court of Human Rights and its Inter-American counterpart. Second...

A rights-based approach to environmental protection: The Zimbabwean experience

Madebwe,Tinashe
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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Stemming from the common law, international law and statute, Zimbabwean law has always recognised the prominent role that environmental rights should play in the environmental regulatory framework. In theory, this was based on recognition of the fact that the provision of such rights, and their full enjoyment by citizens, would allow Zimbabweans the opportunity to live in a clean and healthy environment. In addition, through exercising these rights, citizens could directly enforce environmental laws. In practice, however, it appears that deficiencies in the environmental regulatory framework at the institutional level precluded Zimbabweans from fully exercising or enjoying their environmental rights. It was against this backdrop that Zimbabwe in 2013 enacted a new Constitution which entrenched environmental rights in the Declaration of Rights. This was a welcome development which aligned Zimbabwean law with developments across various other jurisdictions which have accorded environmental rights constitutional importance. Importantly, and in light of the seeming deficiencies in the environmental law regulatory framework at the institutional level, which manifested in Zimbabweans not fully exercising, or enjoying, their environmental rights prior to the inception of the Constitution...

Cultural rights versus human rights: A critical analysis of the trokosi practice in Ghana and the role of civil society

Asomah,Joseph Yaw
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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In this article, I examine critically the culture versus human rights debate, and the crucial role and tactics of civil society organisations, drawing on insights from transnational advocacy networking, in the struggle to extend human rights to vulnerable people with reference to the trokosi practice in Ghana. This trokosi system turns virgin girls into slaves of the gods to atone for crimes committed by their family members. Theoretically, universal human rights must take precedence over any demand for cultural rights. In practice, however, the actual enforcement of human rights laws that conflict with other cultural values and practices can be more messy and complex than it is often conceptualised. Essentially, universal human rights accommodate, recognise and promote cultural rights; however, the latter ends at a point where its observance is likely to result in the violation of the fundamental human rights of others. I conclude that, although the call for cultural pluralism and the need to celebrate and respect the diversity of cultures sound legitimate, this demand cannot be allowed to trump the minimum package of the fundamental human rights that protect human dignity, wellbeing and integrity within the context of human rights protocols that state parties already have ratified. Yet...

Striking a balance between community norms and human rights: The continuing struggle of the East African Court of Justice

Possi,Ally
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2015 Português
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The article exposes the difficult position in which the East African Court of Justice (EACJ) finds itself when faced with matters containing human rights allegations, which the Court is barred from deciding as such. The EACJ is often called upon to draw a line between what might constitute a human rights case and a claim relating to an East African Community (EAC) norm which is not barred under article 27(2) of the East African Community Treaty. As the main judicial mechanism of the EAC, the EACJ is primarily mandated to interpret and apply EAC law, of which human rights form part. Despite the existing limitations, the EACJ has clearly laid down its position that it cannot 'abdicate' exercising its interpretive mandate, even if a matter before it contains allegations of human rights violations. In doing so, the EACJ has indirectly protected human rights in the EAC through other forms of cause of actions, such as the rule of law and good governance. This contribution advances two key arguments: First, the EAC Treaty contains human rights norms that the EACj cannot escape from interpreting. Second, due to the continuing restrictions in adjudicating human rights, as well as the existing human rights norms in the EAC Treaty, the EACJ is trapped in precarious attempts to balance the advancing of EAC norms...

African values and human rights as two sides of the same coin: A reply to Oyowe

Metz,Thaddeus
Fonte: African Human Rights Law Journal Publicador: African Human Rights Law Journal
Tipo: Artigo de Revista Científica Formato: text/html
Publicado em 01/01/2014 Português
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In an article previously published in this Journal, Anthony Oyowe critically engages with my attempt to demonstrate how the human rights characteristic of South Africa's Constitution can be grounded on a certain interpretation of Afro-communitarian values that are often associated with talk of ubuntu. Drawing on recurrent themes of human dignity and communal relationships in the sub-Saharan tradition, I have advanced a moral-philosophical principle that I argue entails and plausibly explains a wide array of individual rights to civil liberties, political power, criminal procedures and economic resources. Oyowe's most important criticism of my theory is in effect that it is caught in a dilemma: Either the principle I articulate can account for human rights, in which case it does not count as communitarian, or it does count as the latter, but cannot account for the former. In this article, I reply to Oyowe, contending that he misinterprets key facets of my theory to the point of not yet engaging with its core strategy for deriving human rights from salient elements of ubuntu. I conclude that Oyowe is unjustified in claiming that there are 'theoretical lapses' that 'cast enormous doubts' on my project of deriving human rights from a basic moral principle with a recognisably sub-Saharan and communitarian pedigree.