Substantive Rights Research Articles

Fashioning rights in the African Court on Human and Peoples’ Rights: understanding the proceduralisation of substantive rights

ABSTRACT:
 In the contemporary practice of international human rights adjudication, it is increasingly recognised that almost every substantive right implies a positive action of establishing effective procedures to ensure its enforcement. In intensifying their scrutiny of domestic procedures designed to ensure respect for human rights treaty provisions in the national order, regional human rights courts have developed a practice of adding a procedural obligation to national authorities to strengthen the internal protection of substantive rights. While such a practice remains unnamed in human rights law jurisprudence, scholars have described it as the ‘proceduralisation’ of substantive rights. In essence, the proceduralisation of substantive rights, as an offshoot of judicial activism, seeks to ensure the concretisation of rights by both widening the scope of obligations and strengthening the requirement for their protection. While this issue has been topical in scholarship relating to the European Court of Human Rights, there is no systematic analysis of how proceduralisation has so far helped the African Court on Human and Peoples’ Rights to fashion the trajectory of substantive rights in widening the scope of obligations and deepening the requirement of their protection. This article intends to fill that gap.
 
 TITRE ET RÉSUMÉ EN FRANCAIS:
 Le façonnage des droits à la Cour africaine des droits de l’homme et des peuples: comprendre la procéduralisation des droits substantiels
 RÉSUMÉ:
 Dans la pratique contemporaine du contentieux international des droits de l’homme, il est de plus en plus reconnu que presque chaque droit substantiel renferme une action positive implicite de mettre en place des procédures efficaces permettant de revendiquer au niveau national le droit en cause. Les cours régionales des droits de l'homme, en intensifiant leur contrôle des procédures internes destinées à assurer le respect des dispositions des traités des droits de l’homme dans l’ordre national, ont développé une pratique d’adjonction jurisprudentielle d’une obligation procédurale à charge des autorités nationales pour renforcer la protection interne d’un droit substantiel garanti. Bien que cette pratique prétorienne reste innommée dans la jurisprudence, la doctrine l’a décrite comme étant la «procéduralisation» des droits substantiels. En substance, la procéduralisation des droits substantiels, en tant que ramification de l’activisme judiciaire, vise à assurer la réalisation effective des droits garantis en élargissant le champ des obligations des États et en renforçant l’exigence de leur protection. Si cette question est d'actualité dans la littérature sur la Cour européenne des droits de l’homme, il n’existe aucune analyse systématique de la manière dont la procéduralisation a jusqu'à présent aidé la Cour africaine des droits de l'homme et des peuples à façonner la trajectoire des droits substantiels en élargissant la portée des obligations et en approfondissant l’exigence de leur protection. Cet article vise à combler ce vide.

“No German, No Service”: EU Migrants’ Unequal Access to Welfare Entitlements in Germany

While existing research has analysed the intersecting migration and social security law, which stratifies migrants’ formal social entitlements, less work has been done on the informal stratifications beyond the law that determine substantive social rights. This article illustrates the informal barriers to de facto benefit receipt that intra‐EU migrant citizens may experience when claiming social assistance in local German job centres, regardless of their manifest legal entitlements. Focussing on informal, yet commonly institutionalised practices of language discrimination, analysis of 103 qualitative, in‐depth interviews reveal recurring patterns of administrative exclusion beyond individual instances of discriminatory behaviour. The unwritten rules and everyday practices shaping administrators’ claims‐processing routines often go against what the law or administrative procedures proscribe, and could be considered as forms of discrimination. The former may be explained by institutional constraints, such as a performance‐orientedmanagement culture, legalistic claims‐processing, or superficial diversity policies. By shedding light on how inequalities in access are constructed in daily administrative practice, this article adds to existing empirical knowledge on how informal inequalities in access emerge at different stages of the benefit claiming process, in contrast to formal social rights on paper, as well as social administrations’ handling of diversity in a context of transnational social protection.

Catch and Kill Jurisdiction

In catch and kill journalism, a tabloid buys a story that could be published elsewhere and then deliberately declines to publish it. In catch and kill jurisdiction, a federal court assumes jurisdiction over a case that could be litigated in state court and then declines to hear the merits through a nonmerits dismissal. Catch and kill journalism undermines the free flow of information. Catch and kill jurisdiction undermines the enforcement of substantive rights. And, importantly, because catch and kill jurisdiction relies on jurisdictional and procedural law, it is often able to achieve ends that would be politically unpalatable by other means. Catch and kill jurisdiction is a recurrent and growing phenomenon. This Article defines catch and kill jurisdiction and identifies areas where it can be found today, including in transnational and complex cases. This Article argues that catch and kill is likely to arise when federal judges are willing and able to expand federal jurisdiction and when federal courts are hostile to certain classes of claims or litigants. It also shows how catch and kill feeds back into more catch and kill—what I call the catch and kill ratchet. On the normative side, this Article does not argue that catch and kill is inherently wrong—indeed, some examples of catch and kill are normatively preferable. Instead, this Article argues that catch and kill jurisdiction is problematic when it relies on seeming neutrality, obscurity, and delegation to achieve deregulatory ends that might not be possible through substantive lawmaking. These concerns are exacerbated because federal judges—not legislators—are the lawmakers in catch and kill. Federalism values also are at stake when catch and kill defeats claims arising under state law. This Article’s analysis of catch and kill also helps clarify some of the issues raised by the Class Action Fairness Act, in which Congress employed a catch-and-kill-like strategy in service of deregulation. Finally, this Article explains why it will be challenging to reverse catch and kill in gross, though there are strategies to resist catch and kill in individual cases.

ANALYSIS OF THE PROCEDURAL STATUS OF A PERSON PROVIDING PAID WORK UNDER A CIVIL LAW CONTRACT IN EMPLOYMENT LAW CASES

The amendment of the Trade Union Act by the Act of 5 July 2018 amending the Trade Union Act and certain other acts (Journal of Laws, item 1608), which entered into force on 1 January 2019, redefined the essence of collective labour law. Pursuant to the aforementioned amendment, the legislator introduced into the legal system the institution of a “ person who performs paid work”, which includes both an employee within the meaning of Article 2 of the Labour Code and a person providing work for remuneration on a basis other than employment relationship (so-called non-employee). The analysis of the introduced provisions leads to the conclusion that the legislator focused on providing non-employees with substantive legal rights, such as, among others, the right of union coalition. However, in my opinion, the legislator neglected analogous scrupulosity in the area of procedural rights of non-employees, which led to a situation in which non-employees are partially entitled to the same substantive rights as employees, but do not have analogous procedural rights. In my view, this constitutes a flagrant omission on the part of the legislator which, as a consequence, leads to legal uncertainty and a lack of effectiveness of the protection introduced for non-employees.

Nadużycie praw procesowych w postępowaniu cywilnym – zagadnienia ogólne

Nadużycie praw procesowych w postępowaniu cywilnym – zagadnienia ogólne

A Critical Analysis of the Case-Law of the Bulgarian Constitutional Court Concerning Legislative Retroactivity

This study focuses on the concept of retroactive application of the new law within the meaning of established case-law of the Bulgarian Constitutional Court (the Court). It is emphasized upon the circumstance that the Bulgarian Constitution does not contain a general prohibition on attributing a retroactive effect of the law, in the absence of an explicit legislative guidance to the contrary (e. g. sec. 5, para 3 of the Constitution). The Court finds that the principle stating that laws should have prospective effect should be derived from the rule of law as a constitutional principle (art. 4, para 1 of the Constitution). The present study examines the cases in which the Court finds that the prohibition of the retroactive effect of the law is applicable in cases of retroactivity ‘stricto sensu’, where the trust in the stability of the legal system, legal certainty and acquired substantive rights are violated. According to the recent Court’s case-law the retroactive effect of the law is incompatible with the rule of law under specific conditions. The Court has adopted the view that according to the principle of protection of legitimate expectations, related to legal certainty, legislative changes that are sudden, unexpected and disproportionate to constitutional standards must not be allowed.

Backlash Against ISDS

Over the years, Investor-State Dispute Settlement (ISDS) has spurred a lot of controversies on its legitimacy and integrity. The criticisms mainly stem from the obscuring effect of ISDS on legitimate government regulation and the adventurist manner in which arbitral tribunals interpret substantive rights favouring foreign investors. This, in turn, has resulted in a backlash by States which is illustrated through various forms ranging from withdrawal from traditional Bilateral Investment Treaties (BITs), the development of new era BITs, to extremities of eliminating ISDS all-together. Although there are plausible reforms that have been adopted, the system is still a work in progress. Mechanisms must be incorporated to strike a balance between promotion and protection of investment and the sovereign right of the State to regulate investment in the public interest. Innovation and the adoption of regulatory tools that meet individual States developmental needs will play a focal role in attaining a comprehensive International Investment Agreements (IIAs) reform. This paper argues that a paradigm shift from the competing interests of States and investors to a sustainable development approach will achieve a necessary balance in ISDS taking into account the interests of all stakeholders involved in investment arbitration.

Reading Regents and the Political Significance of Law

Reading Regents and the Political Significance of Law

Зловживання цивільними процесуальними правами

The article presents a general description of the abuse of civil procedural rights, explores the concept of “abuse of civil procedural rights”, its essence and legal nature, features and problems of legal regulation, analyzes case law and identifies problems that arise in court cases related to with abuse of civil procedural rights. Abuse of civil procedural rights was and is now quite common in our country. Despite the fact that this phenomenon has actually existed for a long time, the state paid attention to it and began to regulate issues related to it, relatively recently. In particular, one of the most important regulations, which addresses the issue of abuse of civil procedural rights, was adopted in a new version in 2017, the Civil Procedure Code of Ukraine. In fact, the abuse of civil procedural rights is a novelty of civil proceedings. This is the reason for its detailed study and research. The problem of the existence of this phenomenon remains relevant for many years. After all, if the state does not pay enough attention to it, the constitutional rights of citizens of Ukraine, the right to a fair trial, as provided by the Convention for the Protection of Human Rights and Fundamental Freedoms, may be violated. The main task of the court is the correct recognition of certain actions of the participants in civil proceedings as an abuse of civil procedural rights. It is by establishing the right criteria by which one could distinguish the abuse of procedural rights from the conscientious conduct of individuals that such consequences as unjustified prosecution and violation of the right to a fair trial can be avoided. It is also one of the most common problems that courts face in their work. It is also problematic to distinguish the abuse of civil procedural rights from the abuse of civil substantive rights, as they entail completely different legal consequences, which can also be a violation of the right to a fair trial.

International Economic Law Tribunals and Global Social Justice

AbstractInternational courts play a key role in the attainment of global social justice objectives. The core contributions of international adjudication to global social justice are, not surprisingly, in line with the core functions of adjudication: the enforcement of substantive rights in a setting of fair procedures. Fully realizing the potential for justice inherent in this role is limited, however, by certain institutional and structural features unique to international adjudication. This article analyzes these opportunities, challenges, and background conditions in the context of international economic law (IEL) adjudication, where the results are mixed. For example, one can see in the case of the World Trade Organization (WTO) evidence of institutional and doctrinal evolution, albeit uneven, toward more substantively progressive outcomes. In the case of the foreign investment regime, however, one can see evidence of this regime retarding global social justice rather than advancing it. This makes it all the more important that all judges and arbitrators in IEL adjudications consider carefully the interpretive, remedial, and progressive roles that principles of justice can play in adjudication, particularly in the face of any deficiencies in procedural or substantive justice in the law or forum within which they operate. The work of IEL adjudication offers a number of possible sites for interpretive practices according to principles of justice, such as the resolution of disputes involves difficult interpretive questions centered around fairness and unfairness; equality and inequality of treatment; the scope of exceptions; and the meaning of evolutionary terms. Capitalizing on these opportunities and moving IEL adjudication toward global social justice requires what effective judging always requires: a vision of the goals of the institutions and regimes in question; an understanding of the social issues the regime either was created to address or touches incidentally through its actions and externalities; careful attention to the relationships among the relevant actors and their expectations; and a sophisticated understanding of the legal context and legislative history of the law in question.

Priority of duties, substantive human rights, and African communalism

I argue for a plausible view of the African idea and practice of substantive individual rights. This view indicates that rights are a means of enhancing individual dignity in the context of a communal system of correlativity of duties and rights. This view is exemplified in Menkiti’s idea of the priority of duties. I explicate this idea and indicate how it highlights the inherent social-communal nature of humans that is implicated in African normative conception of “personhood”.

From a Right to a Preference: Rethinking the Right to Genomic Ignorance.

The "right not to know" has generated significant discussion, especially regarding genetic information. In this paper, I argue that this purported right is better understood as a preference and that treating it as a substantive right has led to confusion. To support this claim, I present three critiques of the way the right not to know has been characterized. First, I demonstrate that the many conceptualizations of this right have hampered debate. Second, I show that the way autonomy is conceptualized in this literature is also problematic. Third, I examine the notion of a right in more detail, to support my third critique: that the right to know and the right not to know genetic information are often erroneously treated as having equivalent status. On my understanding, the claim being made is better thought of as a preference, not a right, and a preference not to know certain information becomes only one of several considerations relevant to medical decision making.

Physical and sexual abuse against young athletes in sport in light of article 8 of the European Convention on Human Rights (ECHR)

Numerous young athletes have suffered from physical and sexual abuse at the hands of their coaches. Despite this, the European Court of Human Rights (ECtHR) has never dealt with a violation of child rights under the European Convention on Human Rights (ECHR) in the case of physical and sexual abuse in sport. In this situation, a question that may arise is how young athletes can argue a violation of their substantive rights under the Convention before the ECtHR in the case of such abuses? In this regard, the right to physical and mental integrity under Articles 10 (2) and 27 (2) of the Swiss Federal Constitution (SFC) as well as the prohibition of an excessive limitation of personal freedom under Article 27 (2) of the Swiss Civil Code (SCC) may play an essential role to build a bridge between the Convention rights and the fundamental human rights under national law in light of the SFT’s precedents within the meaning of substantive public policy under Article 190 (2) (e) of the Swiss Private International Law Act (PILA). Although the International Federations (IFs) have not recognised a legal standing of young athletes suffering from physical and sexual abuse, state parties to the ECHR must implement positive obligations under Article 8 (1) of the ECHR to take necessary measures to protect young athletes against such abuses by non-state actors and may require sports governing bodies within the jurisdiction to comply with Article 8 (1)’s obligations. Accordingly, this article might serve to clarify a duty of sports governing bodies to protect young athletes against such abuses through a lens of the ECHR.

Head of State: Function of the President of the Republic of Belarus

According to the author of the paper, the head of state is not a position, not a title, not any state body, but the function of the President of the Republic of Belarus, along with the function of the guarantor of the Constitution, human and civil rights and freedoms. The function of the head of state is unchanged and is due to his position in the system of state authorities. This function manifests the nature and essence of the institution of the presidency, which cannot be reduced to specific actions or practices, therefore, it is implemented through the exercise of powers in various organizational forms. In this regard, the concept of “president”, unlike “head of state”, is not static, but dynamic, since the list of rights and duties of the President of the Republic of Belarus is open.Powers are unambiguous, substantive rights and duties of the President, legitimized from the functions and expressed in various organizational forms of his activities. At the same time, the characteristics of the President’s powers can only show the external side of his activities. The powers of the President, in contrast to the functions, are a variable value. The President through representative, legitimation, arbitration, control, rulemaking, personnel, integration, symbolist and ceremonial state powers carries out the function of the head of state.The function of the head of state is the superiority and precedence of the President over all state officials. In accordance with it, the idea of the Republic of Belarus is personified. This function allows the President of the Republic of Belarus to be the main public representative and act on behalf of the Belarusian state both within it and in international relations. This is the result of the state obtaining the status of a legitimate state, the continuity and interaction of state authorities, mediation between them. The constitutional function of the head of state makes it necessary for the President to have instruments of power-state bodies operating within this function.

Constitutionalizing Access

State constitutions receive relatively little academic attention, yet they are the source of significant substantive rights—and, when compared to the U.S. Constitution, they are relatively easily amended to comport with contemporary needs and values. Unlike the constitutions of dozens of other nations, the U.S. Constitution contains no explicit recognition of a right to information from the government, and the Supreme Court has declined to infer that such a right exists, apart from narrow exceptions. Conversely, seven states expressly memorialize the public’s right of access to government meetings and records in their constitutions. In this paper, the authors examine case law applying the constitutional right of access, concluding that the right is somewhat underutilized and rarely seems to produce an outcome clearly different from what a litigant could expect relying on state statutory rights alone.

The disposition principle in civil proceedings

Shtefan A. The disposition principle in civil proceedings. The disposition (from the Latin «dispono» — to dispose) in the most general sense in the legal context means the ability to act at own discretion, to independently choose the direction of their behavior within the limits established by law. In different branches of law, the disposition has its own specific features but its basis is always that the subject of the relevant legal relationship is endowed with a certain freedom of choice in the exercise of their rights and independently disposes of them.The dispositive nature of civil proceedings has the following elements:1) civil proceedings in the case are based on the fact that its occurrence is possible only by virtue of the application of the person concerned to the court. The only grounds for initiating proceedings in the case is the submission of the application of the interested person in accordance with the requirements established by lawand in accordance with the procedure established by law;2) the court considers civil cases within the requirements stated in the case which include the requirements stated in the main claim, in a counterclaim, and in a third party claim;
 3) consideration of civil cases is carried out solely on the basis of evidence submitted by the parties to the case or required by the court in cases provided by law. The main burden of filling the case with evidence rests with the parties to the case, and the court assists them in obtaining evidence by demanding it only in casesestablished by law;4) the party to the case, as well as the person who has legal capacity and in whose interests the claim is filed, disposes of their rights in relation to the subject matter of the dispute at their own discretion. This rule covers only procedural, not substantive rights, and applies only to rights relating to the subject matter of the dispute. In addition, the possibility of discretion of the party to the case in relation to their procedural rights on the subject matter of the dispute is allowed to the extent provided by procedural law;5) the court engages the relevant body or person that has the right to protect the rights, freedoms, and interests of others if the actions of the legal representative are contrary to the interests of the person he represents. In case of discrepancy between the interests of this person and the actions of his legal representative, the court is authorized to involve a body or person who is legally entitled to protect the rights, freedoms, and interests of others to participate in the case;6) the collecting of evidence in civil cases is not the obligation of the court except in cases established by procedural law. The court should not act in this direction instead of an inactive party to the case; the mandatory authority of the court to collect evidence is due to the direct indication of in which cases and what evidence is collected by the court itself;7) the court has the right to collect evidence relating to the subject matter of the dispute on its own initiative only in cases where it is necessary to protect minors or minors or persons who have been declared incompetent or whose capacity is limited, as well as in other cases provided by procedural law.The disposition as a basis of civil proceedings determines the only possible condition for the process of consideration of the case — the application of the interested person to the court, the limits of consideration of the case — stated by the interested person requirements, the basis of the case — evidence submitted by the parties or demanded by the court. The disposition also means the freedom of the party to dispose of their procedural rights in relation to the subject matter of the dispute, the absence of any obstacles to the implementation of such an order at its discretion. This freedom is not absolute and it has the statutory limits. Such limits are necessary for the effective functioning of the civil procedural form, in particular, the observance of reasonable time limits for civil cases and the prevention of abuse of procedural rights.Key words: disposition, disposition principle, civil proceedings

Dialogue and distrust: John Hart Ely and the Canadian Charter

Abstract John Hart Ely’s process theory of judicial review has had an influence on constitutions across the globe. This article explores and evaluates Ely’s influence on the drafting and development of the 1982 Canadian Charter of Rights and Freedoms. The article first outlines the rudimentary elements of Ely’s theory of judicial review, then how Ely’s explicit influence on the development of the Charter has mostly been limited to the context of Section 15 equality rights. But Ely’s influence has been more extensive in the way scholars have sought to understand the Charter. The third section of this article shows how Ely has had an impact on Patrick Monahan’s theory of judicial review under the Charter, and in Rosalind Dixon’s process theory of dialogue. The article concludes by arguing that although Ely’s concerns remain relevant in the Canadian context, there are two reasons to be skeptical of using Ely’s theory to understand Charter rights: the first reason is that the Charter features substantive rights that do not seem to be reducible to protections for participation in the political process; the second reason is that process-based dialogue theory appears to be insufficiently distrusting of courts.

Examining the Structure of Remedial Law

Examining the Structure of Remedial Law

Ruptures and acts of citizenship in the Swedish berry-picking industry

The Swedish berry industry relies today on two categories of agricultural seasonal workers: ‘third country nationals’, commonly from South-East Asia, who are granted seasonal work permits for berry picking; and another category designated as ‘free pickers’, mostly EU citizens who sell the harvested berries directly to Swedish berry buyers. With regard to both categories of berry-pickers, successive scandals have plagued the industry. Workers who arrive in Sweden hoping for lucrative employment have ended up with large debts, not able to return home, or have become trapped into ‘forced labour’. This article builds partly on results from our previous research projects on berry pickers in Sweden that centre upon recurrent crises, highlighting the social invisibility of berry-pickers that both enables and adds to their precarity and exploitability. In this paper, our research objective is to study the visibilisation of the pickers' situation of socio-economic precarity and their need for substantive rights. The empirical data comprises interviews and observations collected in 2010–2013, and additional follow-up interviews gathered in 2019–2020. The analytical approach follows theoretical notions of ruptures and acts of citizenship, leading to visibilisation and mobilisation. Key findings identify the occurrence of ruptures contributing to a visibilisation of the berry pickers' plight and to civil society calls for the improvement of their employment rights. Berry-worker protests that make their situation visibile are acts of citizenship which have led to wider mobilisations, but in recent years these have been counteracted, not least, by co-ordinated (local and national) authorities and by landowner responses to such challenges. We argue that these counter-responses can add to invisibilisation, thus becoming pre-emptive bureaucratic actions.

The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants

Abstract This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.