Two steps forward, no steps back? Evolving criteria on the prohibition of retrogression ineconomic and social rights

Nolan, Aoife; Lusiani, Nicholas; Courtis, Christian

doi:10.1017/cbo9781107337954.007

Cited by 13 publications

(11 citation statements)

References 8 publications

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“…The adoption of a legal measure with the effect of undermining or reducing existing legal guarantees undertaken by the state would fall within the category of normative retrogression, whilst the state's failure to act in a situation where a social need for additional legal protection arises would fall within the category of empirical retrogression. 106 In this case, we are concerned with normative retrogression, where there is a withdrawal of a legal entitlement of South Africans and members of SADC countries to access the SADC Tribunal. This principle is not new to South African courts.…”

Section: The Principle Of Non-retrogressionmentioning

confidence: 99%

International law, access to courts and non-retrogression : Law Society v President of the Republic of South Africa

Samtani

2020

Constitutional Court Review

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In 2014, the President of the Republic of South Africa signed a Protocol to the SADC Tribunal aimed at stripping the Tribunal of its jurisdiction to hear matters brought by individuals. This followed the President's 2010 decision not to reappoint judges to the SADC Tribunal, rendering it inoperative. In Law Society v President of the Republic of South Africa, the Constitutional Court considered an application for confirmation of the High Court's order declaring these two acts unconstitutional. The Court held that the President's conduct was irrational, unlawful and unconstitutional on three grounds. I focus particularly on the ground that the President's conduct violated or threatened to violate the Bill of Rights. The right of access to justice is guaranteed through the right of access to courts under s 34 and the right to the enforcement of the Bill of Rights under s 38 of the Constitution. In Law Society, the Court interpreted s 34 expansively, extending the domestic right of access to courts to international tribunals. The Court held that the Bill of Rights guarantees the right to access the SADC Tribunal (subject to the Tribunal's jurisdictional prerequisites). The President was held to have breached his s 7(2) duty to respect, protect, promote and fulfil the right. The reasoning is sparse, leaving several unanswered questions. While agreeing with the overall outcome, I argue that the Court should have properly applied the constitutional scheme detailing the relationship between international and domestic law. The Court could have justified the outcome in one of two ways: either through a finding that the relevant provisions of the SADC Treaty and Protocol were self-executing (directly applicable) under s 231(4); or by applying international law indirectly in terms of s 39(1)(b) of the Constitution when interpreting the right in s 34. It did neither, seemingly applying international law directly but without explaining the basis for its approach. Further, in applying the principle of non-retrogression without clarifying its scope, content and limits, the Court missed an opportunity to illustrate to which international courts the right of access to courts applies and when (if ever) the state may take away existing access to an international court aimed at protecting human rights. The Court's approach creates a risk of rendering the constitutional scheme redundant in service of outcome-oriented application of international law.

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Section: The Principle Of Non-retrogressionmentioning

confidence: 99%

International law, access to courts and non-retrogression : Law Society v President of the Republic of South Africa

Samtani

2020

Constitutional Court Review

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“…This supports Young's contention that progressive realisation 'introduces a relative standard for the discharging of duties owed by the state' (Young, 2012: 101). Indeed, much of the scholarly treatment of progressive realisation has reiterated the dependant and conditional connection between rights on the one hand and resources on the other (Nolan et al, 2014: Kalantry et al, 2010: Young, 2012: O'Connell et al, 2014: Russell and Chapman, 2002. As Fakuda-Parr et al, (2015) assert: 'Inherent in the idea of progressive realization is that a government's ability 1 Article 4(2) states: 'With regard to economic, social and cultural rights, each State Party undertakes to take measures to the maximum of its available resources and … with a view to achieving progressively the full realization of these rights' .…”

Section: Understanding Progressive Realisationmentioning

confidence: 99%

“…9). In their examination of the principle, Nolan et al (2014) identify two distinct dimensions underpinning its operation, namely a normative and an empirical dimension. The former, they argue, concerns the prohibition of retrogressive measures in terms of 'legal de jure guarantees' .…”

Section: 25mentioning

confidence: 99%

“…Such measures must be temporary, necessary and proportionate, reasonable and non-discriminatory, must not disproportionally impact the rights of marginalised groups and must protect the minimum core content of rights (ibid. : Nolan et al, 2014). Ascertaining whether any de jure or de facto "backsliding" has occurred requires ongoing monitoring by contracting states.…”

Section: 25mentioning

confidence: 99%

“…Ascertaining whether any de jure or de facto "backsliding" has occurred requires ongoing monitoring by contracting states. Indeed, Nolan et al (2014) argue that: 'Measuring the extent of progressive realization requires information on the extent to which obligations are realized in relation to specific groups' (ibid. : 69).…”

Section: 25mentioning

confidence: 99%

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Reclaiming Progressive Realisation: A Children’s Rights Analysis

Byrne

2020

Int. J. Child. Rights

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Any discussion on children’s socio-economic rights should not overlook their means of fulfilment; namely, the principle of progressive realisation and the legal duties arising therefrom. This article argues that from a children’s rights perspective, this principle has remained legally and operationally underdeveloped by the Committee on the Rights of the Child. This can be seen from their failure sufficiently to engage with, and address, the obligations imposed by progressive realisation in their General Comments and in their Concluding Observations on state practice issued under the Convention’s reporting process. This article argues that the cumulative consequence of these failings is that the Committee has peripheralised this important legal obligation within children’s rights scholarship and has ultimately undermined its ability to achieve its full legal potential in enhancing children’s socio-economic rights. In advocating for the promulgation of a revised General Comment on the General Measures of Implementation, it demonstrates how children’s rights can meaningfully reconnect with the principle in a more consequential way.

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Human Rights, Public Budgets, and Epistemic Challenges

Kuosmanen

2016

Hum Rights Rev

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Two steps forward, no steps back? Evolving criteria on the prohibition of retrogression ineconomic and social rights

Cited by 13 publications

References 8 publications

International law, access to courts and non-retrogression : Law Society v President of the Republic of South Africa

International law, access to courts and non-retrogression : Law Society v President of the Republic of South Africa

Reclaiming Progressive Realisation: A Children’s Rights Analysis

Human Rights, Public Budgets, and Epistemic Challenges

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