Realisation Of Socio-economic Rights Research Articles

A link without a right, or ubi nexus, ibi jus (?): international human rights instruments & international tax policy

ABSTRACT In recent years, human rights scholarship has progressively turned its gaze to the topic of taxation. As a growing body of literature has shown, both the tasks of raising and spending tax revenue may impinge on the realisation of socio-economic rights, a relationship here termed tax and human rights nexus. Notably, however, sovereigns' fiscal powers are, to a large extent, curtailed by the international tax regime. Whereas appeals for a normative alignment between international tax law and human rights are mounting, a closer look at what exactly international human rights frameworks allow with respect to taxation is still largely missing. This article seeks to fill this gap by systematically analysing regional human rights court's jurisprudence on taxation where it intersects socio-economic rights. In doing so, it aims at illuminating the opportunities and challenges for human rights judicial review of international fiscal policies.

Taxation and the Realisation of Socioeconomic Rights in Africa: What Is the Role of International Cooperation?

Taxation and the Realisation of Socioeconomic Rights in Africa: What Is the Role of International Cooperation?

Rule of Law Through the ‘Urban Turn’ in South African Constitutionalism

The 1996 South African Constitution transformed municipalities from creatures of statute into an interdependent sphere of government, thereby enabling South African cities to carve out a space for autonomous urban governance, which is closely associated with the progressive realisation of socio-economic rights. This article considers how South African courts have deployed, reconfigured and channelled the rule of law in intergovernmental relations disputes, disputes concerning the developmental obligations of local government and socio-economic rights disputes, in order to fortify urban autonomy, to substantively guide its exercise and to ensure dynamic accountability for urban local governments’ role in ensuring the progressive realisation of socio-economic rights.

JUDICIAL REVIEW IN SOUTH AFRICA AND INDIA: ADVANCING CONSTITUTIONALISM OR UNDUE ACTIVISM?

The Supreme Court of India and the Constitutional Court of South Africa, as apex courts, also function as guardians of the constitutions of each respective country. This article seeks to establish the extent to which judicial review in India and South Africa can be said to be more aligned with constitutionalism or undue activism. An assessment of the aforesaid is determined with regard to the transformative and progressive constitutional interpretation approach adopted by the aforesaid courts which also gives impetus to the living tree doctrine, the role that dignity plays in giving substantive meaning to democracy, ineptitude, and or corruption on the part of the executive precluding the effective realisation of socio-economic rights as well as parliament’s failure to hold members of the executive to account. The extent to which constitutionalism, as opposed to undue activism, has been advanced by the aforesaid courts is demonstrated with reference to specific cases.

Good governance: A legal determinant for the enforcement of socio-economic rights in Africa

In discussions concerning the abysmal level of poverty in Africa which has been a hot topic for decades, the topic of economic, social and cultural (socio-economic) rights is always up for controversy. There are constant reports on the poor state of socio-economic development on the continent. African countries also share the constant criticism for the poor state of socio-economic rights. This paper analyzes the journey of good governance and institutions as a fundamental determinant of the sustainable realization of social and economic right. It explains the position of fundamental rights and directive principles in the Constitutions of some African States. Furthermore, it examines the judicial approach of dealing with the relationship between fundamental rights and directive principles. The findings of this paper go beyond the executive domain and investigate the contributions of judicial institution in realization of socio-economic rights and development in Africa. In this light, it looks into the enforceability of socio-economic rights and recommends establishment of independent institutions in each African state for the enforcement of socio-economic rights.

The Impact of Digitalization on the Transformation of the Concept of Socio-Economic Federalism

This study of the impact of digitalization on socio-economic federalism covers only certain aspects of this topic. In the article it is noted that digital assistants contribute to significant time savings and ease of use of services related to the sphere of state and municipal government. The possibilities of using digital technologies are leading to the fact that the hierarchical management, typical of classical bureaucracy, is collapsing, but this does not yet mean the failure of paper bureaucracy. At the same time, it is indicated that digital technologies are the tool that allows one to open the axiological gap between the real state of affairs in different regions of the Russian Federation in terms of creating conditions for the realization of socio-economic rights of the individual. The possibilities of differentiation and disproportion in the regulation of various legal relations in the subject of the Russian Federation should be focused on creating equal conditions for achieving one’s own well-being. The scientific novelty of the study lies in the substantiation of the possibility of using digital technologies, which make it possible to more quickly navigate the needs of the inhabitants of a particular region of the country and, using the electronic rule-making tool, contribute to a better law-making process in the subject of the Russian Federation in terms of the regulation of socio-economic rights. The scientific result of the study was a proposal for the gradual, soft introduction of digital technologies on existing portals to improve the well-being of citizens, taking into account their needs.

Countering Involvement of Kenyan Children in Terrorism through Realization of their Socio-Economic Rights

State and multinational efforts aimed at containing terrorism in Kenya have only yielded modest results despite the repressive nature of these efforts. The ranks of the foot soldiers of Al Shabaab fundamentalist sects continue to swell even in the face of the ferocious onslaught on their membership by state troops. Abandoned by the state, coupled with poverty, children become easy targets for radicalization and are subsequently recruited into terrorist groups. This article argues that poverty is the main cause that exposes children to abuse, criminalization and subsequent mobilization into terrorism. It argues that until the practices of rampant child abuse and state-neglect of children as a vulnerable group are addressed through better education, employment opportunities and poverty reduction, Kenya is likely to remain a breeding ground of violent conflicts and persistent attacks by the terrorists. The realization of the socio-economic rights of children has only been given the priority it deserves by the human rights groups as a way forward for the country of Kenya to counter the involvement of children in the terror groups. The rate at which Kenya’s youth are getting in the terror groups is alarming and the number is expected to rise if the realization of socio-economic rights of the youths is not urgently addressed by the state. This article, therefore, focuses on this recent phenomenon of involvementof children in Kenya into terrorism activities. The article attempts to briefly explore the impacts of involvement of children in Kenya as a new challenge in relation to the discourse of child protection. With a view of mitigating the harm on the lives, well-being, survival and development of children in some parts of Kenya, the article sets outs viable solutions that should be considered in the fight against involvement of children in terrorism.

Law and Nigeria's Development: How to Strengthen the Efficacy of Law for Development in Nigeria

In today's world, the role of law transcends the maintenance of social order and administration of justice. Law has a crucial role to play in the developmental processes of states. Nigeria, a country now reputed to be the poverty capital of the world, is in dire need of development. Law can aid Nigeria's quest towards development. This study addresses the question what is development and makes an attempt to offer a holistic notion of the concept. In appraising the relevance of law in Nigeria's developmental process, the study examined instances where the law was employed to enable development, either through the facilitation of indices of development or through the inhibition of impediments to development. Additionally, the study interrogated the nexus between the law and development policy in Nigeria, and appraised the role of law in Nigeria's development process. Prescriptively, the study suggested ways in which the relevance of law in Nigeria's development process can be supplemented, namely prioritisation of the development question in law-making, execution and interpretation; promoting the realisation of socio-economic rights; and the mainstreaming of customary law as an integral part of the law and development discourse.

Are There Global Obligations to Assist in the Realization of Socio-Economic Rights?

This Article focuses on global obligations to assist in realizing socio-economic rights, which represent a missing element in existing international human rights law. They are neither understood correctly in human rights theory and discourse nor acknowledged and implemented in international legal order. Contemporary mechanisms for assistance are insufficient, inefficient, and often violate human rights. Accountability bodies capable of holding multiple actors responsible for their breaches of obligations to assist are lacking. Since global obligations to assist are indispensable for reducing extreme poverty and inequality, as well as empowering the most vulnerable individuals and societies, the justification, conceptualization, and furtherance of such obligations is a task of paramount significance. In a time of pandemic, an efficient global system of assistance is more important than ever. On the basis of normative principles that are defended in contemporary legal and political philosophy and embedded in human rights law, the Article proposes a coherent and plausible framework for reconstructing international human rights law regulating obligations to assist. It develops a legal-philosophical justification and outlines a legal conception of global human rights obligations to assist. Following that, it critically assesses human rights instruments governing obligations of assistance, detects gaps, and suggests improvements. The Article also examines existing mechanisms used to implement obligations to assist and their critique, formulates recommendations on how current institutions and practices of assistance might be fortified, and sketches some important features of a global institutional design necessary for the realization of global obligations to assist.

Progressive Realization of Socio-Economic Rights: Nonsense on Stilts?

Progressive Realization of Socio-Economic Rights: Nonsense on Stilts?

Prioritising Socio-Economic Rights in Sovereign Debt Governance: The Obligations of Private Creditors

Over the past few decades, sovereign debt crises have become recurring phenomena across the world. Studies have shown the devastating impacts of these crises on the realisation of socio-economic rights. Sovereign debtors constantly face an “obligatory dilemma” of simultaneously satisfying multiple contractual and treaty obligations owed to different constituencies, including to their citizens and private creditors. Unfortunately, there is currently no binding legal framework to deal with sovereign debt crises and, consequently, creditors are unwilling to compromise. Therefore, using Waldron’s theory of socio-economic rights, this article argues for the prioritisation of socio-economic rights considerations during debt crises. It observes a convergence between the areas of business and human rights and sovereign debt restructuring regimes and suggests the employment of the former to achieve this prioritisation. This can be done by taking advantage of the efforts to develop a binding instrument on business and human rights.

SOCIO-ECONOMIC RIGHTS IN ZIMBABWE'S NEW CONSTITUTION

1. Introduction The constitutionalisation and justiciability of socio-economic rights has always been debated among scholars and practitioners. While everyone agrees that every constitution should encompass socio-economic rights there is still disagreement on whether they should be under the Bill of Rights or Principles of State Policy. The constitutional debate in Zimbabwe also included such discussions which resulted in the inclusion of socio-economic rights as both National Objectives (Principles of State Policy) and Declaration of Human Rights (Bill of Rights), under chapter two and four respectively. Though this is a welcome move towards the progressive realisation of socio-economic rights the big question remains whether this will improve the protection and promotion of these rights, subsequently bringing change to people's lives. This overview provides a critical analysis of the new constitution and offers recommendations for the improvement of the socio-economic rights regime in Zimbabwe through courts, state institutions and government. 2. The new Constitution The preamble of the new constitution (1)) recognises the supremacy of God and gives special recognition to the liberation struggle, natural resources, diverse culture, democratic values, rule of law and fundamental human rights. It values the principles of rule of law, fundamental human rights and freedoms, gender equality, good governance and representation of the electorate and places an obligation to the State to protect and promote these values and principles. Though the preamble of the constitution has no legal standing it spells out the purpose of the constitution and it reflects the goals and commitment of government. It is an introductory statement and courts can refer to it on cases pertaining to the constitution as reliable evidence of what the state has promised to achieve and provide for citizens. The preamble commits the state to uphold and defend fundamental human rights and freedoms, which include socio-economic rights. The protection and promotion of socio-economic rights serve to support the commitments set in the preamble, such as transparency, freedom, tradition and culture, fairness and equality. In countries such as South Africa where the preamble is not legally binding, the courts have interpreted the commitments highlighted in the preamble in, for example, the Bato Star Fishing (PTY) LTD vs Minister of Environmental Affairs and Tourism case, interpreting the commitments in the preamble as an obligation on the state. In addition to traditional civil and political rights, the new constitution contains a full catalogue of economic, social, cultural and environmental rights. This includes every person's right to an environment that is not harmful to their health or well-being (section 73); and an obligation to protect the environment for the benefit of present and future generations, through reasonable legislative and other measures. Section 75 (rights to education) entitles every citizen and permanent resident of Zimbabwe to a basic state-funded education, including adult basic education and further education, which the state, through reasonable legislative and other measures, must make progressively available and accessible. This is in line with article 13 of the International Covenant on Economic, Social and Cultural Rights (CESCR). It remains to be seen whether the Government will implement the constitution and enforce the right of girls in some rural areas of access to education where they have been hindered by traditional practises. Section 76 (right to health) confirms the right of every citizen and permanent resident of Zimbabwe to have access to basic healthcare services, including reproductive health. Every person living with a chronic illness has the right to have access to basic healthcare services for the illness. No person may be refused emergency medical treatment in any health-care institution. …

Are judicial monitoring institutions a legitimate remedy for addressing systemic socioeconomic rights violations?

Sections 26(2) and 27(2) of the Constitution of the Republic of South Africa, 1996 provide that the state must take reasonable legislative and other measures to ensure the progressive realisation of socio-economic rights including, housing and social security. The executive is generally responsible for the implementation of these rights. However, a core challenge in South Africa is that the executive is beset by chronic incapacity, especially at provincial and local government levels, which has hindered the realisation of socio-economic rights. This article investigates the increasingly intrusive orders by the judiciary to address this problem; these orders include, specifically, appointing bodies to manage service delivery by the executive. I will situate these mechanisms within the broader powers of the judiciary and provide a justification for them, under particular conditions, against criticisms of judicial overreach. In engaging with their legal justifiability, I will analyse recent South African case law as well as examples from India and Colombia so as to highlight that the South Africa judiciary is not unique in developing such mechanisms. In concluding, I identify the conditions under which the deployment of these mechanisms may be considered justifiable as well as their value in advancing the realisation of socio-economic rights in South Africa.

Concept and Classification of Functions of State Policy in the Field of Ensuring Economic Security of the State

The phenomenon of the state’s functions as the main directions of its activity for the fulfillment of tasks and the purpose of its existence in a specific period of development, their peculiarities and types have been studied. Based on the analysis of scientific works on the implementation of state policy in the sphere of economy and social and humanitarian sphere, the author has defined own definition of the functions of state policy in the sphere of economic security. In particular, the author has emphasized that they could be considered, first of all, as general directions of the state’s activity to create a stable economic security system, which includes a legal framework, a list of agencies authorized to implement regulatory requirements, a system of defined principles, forms and methods of implementation policies, etc; and, secondly, as separate groups of homogeneous actions of public administration subjects on the regulation, development and protection of social economic relations, ensuring the realization of socio-economic rights and freedoms of citizens, as well as creating conditions for further development and growth of the national economy. Based on the first approach, the regulatory, institutional, regulatory and law enforcement functions of public policy in the field of economic security should be distinguished. According to the second direction, the following functions can be considered: information-analytical, planning, organization, interaction and coordination, accounting and control. The obtained results are the integral part of the author’s scientific research on determining the administrative and legal foundations of the implementation of state policy in the sphere of economic security of Ukraine and can be used for carrying out other fundamental and applied scientific researches in the field of national security of the state.

Extra-judicial engagement in socio-economic rights realisation: Lessons from #FeesMustFall

Twenty-five years after the formal end of apartheid, the majority of South Africans still live in poverty, with the attainment of socio-economic rights remaining elusive. While some progress has been made, there is a clear need for new approaches to ensure that rights to housing, food and education are fulfilled in reality, and do not merely remain words in a well-written constitution. In this regard, one approach that holds great potential for expediting the realisation of socio-economic rights is extra-judicial engagement. Extra-judicial engagement here refers to participatory processes occurring outside of courts. However, there is a need to ensure that concerns about the quality of such engagement are addressed to strengthen its success in aiding the realisation of socio-economic rights. The #FeesMustFall movement is a practical attempt at extra-judicial engagement and can thus provide useful insights into the potential and challenges relating thereto.

Forging a Resilient Social Contract in South Africa: States and Societies Sustaining Peace in the Post-Apartheid Era

ABSTRACTSince the advent of democracy in the 1990s, the South African political settlement has ushered into policy a progressive framework for the realization of socio-economic rights, enshrined by the Constitution. However, this political settlement has failed to translate into an economic and social settlement that results in just livelihood strategies and equitable service delivery that addresses historical grievances. Inadequate implementation of socio-economic policies designed to address injustice has contributed to weakening vertical cohesion between state and society. Analysing these two core conflict issues, access to service delivery and livelihood strategies, this article argues that the interaction of the political settlement and the ability of institutions to deliver effectively has negatively affected state-society relations and the legitimacy of the reconciliation agenda meant to support inter-group cohesion.

SOCIAL GUARANTEES OF THE STATUS OF DISABLED IN CONSTITUTIONAL TEXTS OF THE CIS COUNTRIES

Abstract
 Purpose: In the article, based on the analysis of constitutional texts of CIS countries to reflect the social guarantees of persons with disabilities in them, the socially-guaranteeing and social-status models of such consolidation are identified.
 Methodology: The research was based on a dialectical approach to the research of legal phenomena and processes using general scientific (system, logical, analysis and synthesis) and private scientific methods. Among them are formal legal, linguistic legal, comparative-legal, which were collectively used to study the constitutional texts of 12 post-Soviet countries in order to identify options, features, and models of securing social guarantees for persons with disabilities.
 Result: The first model includes norms reflecting guarantees for the realization of socio-economic rights through the adoption of principles of a social state or through blanket norms (Georgia) and enshrining guarantees of socio-economic rights, including the right to social support and state assistance (Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, Uzbekistan, Ukraine). The second one implies the existence of norms on state support for both disabled people (Armenia, the Russian Federation, Turkmenistan) and disabled children (Tajikistan). It was noted that with all the variety of approaches of this focus group of states, constitutional texts reinforce the imperative of social security for the rights of persons with disabilities.
 Applications: This research can be used for universities, teachers, and students.
 Novelty/Originality: In this research, the model of Social Guarantees of the Status of Disabled in Constitutional Texts of the Cis Countries is presented in a comprehensive and complete manner.

South Africa’s Journey from Socialism to Human Rights: The True Confessions of an Errant Socialist

Abstract This article explores the possibilities and pitfalls of various methods of human rights advocacy in post-apartheid South Africa. It does so through following the personal journey of the author, first as a socialist in the anti-apartheid movement and later as a leading human rights activist in some of the most successful civil society organizations to emerge in the post-apartheid period. The journey begins in the pre-constitutional period in 1994 (the year South Africa had its first democratic election) and continues through to 2019. It examines the evolution of human rights practice, particularly in relation to access to treatment for HIV/AIDS and the realization of socioeconomic rights to health care services and basic education. It measures its achievements against the discourse of socialists, particularly their critique of using law, the courts and human rights in the quest for equality. It shows how South Africa has a long tradition of human rights activism that stretches back to the colonial and apartheid periods. However, making human rights justiciable in South Africa’s 1996 Constitution was a game-changer that has enabled tangible victories to be achieved through a combination of litigation and social mobilization. Despite this the author believes that this period of advance may now be reaching its limits and he argues that human rights practice now needs a much deeper consideration of its command over matters of economy and private (corporate) power if it is to retain its credibility in twenty-first century struggles for equality and social justice. The article ends with some suggestions about how this can be done.

Countering Involvement of Kenyan Children in Terrorism through Realization of Their Socio-Economic Rights

State and multinational efforts aimed at containing terrorism in Kenya have only yielded modest results despite the repressive nature of these efforts. The ranks of the foot soldiers of Al shabaab fundamentalist sects continue to swell even in the face of the ferocious onslaught on their membership by state troops. Abandoned by the state, coupled with poverty, children become easy targets for radicalization and are subsequently recruited into terrorist groups. This article argues that poverty is the main cause that exposes children to abuse, criminalization and subsequent mobilization into terrorism. It argues that until the practices of rampant child abuse and state neglect of children as a vulnerable group is addressed through better education, employment opportunities and poverty reduction, Kenya is likely to remain a breeding ground of violent conflicts and persistent attacks by the terrorists. The realization of the socio-economic rights of children has only been given the priority it deserves by the human rights groups as a way forward for the country of Kenya to counter the involvement of children in the terror groups. This radicalization of children must get the support from all the spheres of the country. The government must put in place the required strategies to achieve this. The rate at which Kenya’s youth are getting in the terror groups is alarming and the number is expected to rise if the realization of socio-economic rights of the youths is not urgently addressed by the state. This article, therefore, focuses on this recent phenomenon of involvement of children in Kenya into terrorism activities. The article attempts to briefly explore the impacts of involvement of children in Kenya as a new challenge in relation to the discourse of child protection. With a view of mitigating the harm on the lives, well-being, survival and development of children in some parts of Kenya, the article sets outs viable solutions that should be considered in the fight against involvement of children in terrorism.

Life after judgment: the Nokotyana case re-examined

ABSTRACTThe progressive realisation of socio-economic rights as enshrined in South Africa’s Constitution remains a pipe dream for many poor and vulnerable people, 23 years after the collapse of apartheid. In the case of Nokotyana and Others v Ekurhuleni Metropolitan Municipality and Others, the Constitutional Court (CC) decided on the interpretation of the rights of access to basic services such as sanitation and high mast lighting. In this case, community members from Harry Gwala informal settlement near Johannesburg compelled the state, through courts of law, to upgrade the settlement and to provide basic services. Although the CC did not engage with the content of the socio-economic rights claimed by the community, it did eventually order the state to upgrade the settlement within fourteen months of the judgment. This article discusses the extent to which the state complied with the judgement and what kinds of challenges were experienced in implementing the court order. Empirical data was collected through interviews with different actors. The findings highlight the complexities surrounding implementation of the court judgement.