Cuadernos Constitucionales de la Cátedra Fadrique Furió Ceriol nº 64/65 (2008): «Essays on the 60th Anniversary of the Universal Declaration of Human Rights and the 10th Anniversary of the Valencia Declaration of Human Responsibilities and Duties»
(Vol. 2)
Kristín Benediktsdóttir: «On the States’ Obligation to Provide a Decent Standard of Living to the Elderly: The Example of Iceland», pp. 5-17.
As the population of the Western world is getting older, this will have considerable future implications for many nations. This is especially important when viewed in connection with problems of increasing states’ expenditure, which in the end affects the individuals because of reduced services/assistance or cutbacks. The most relevant question in this context is whether states can cut their budgets for services for the elderly at their own will, or whether they are restricted by relevant laws. Countries which have ratified international agreements regarding economic, social and cultural rights are bound by international law to provide the rights established by these agreements. The article will review some of the most significant international rules on issues regarding the social rights of the elderly and problems relating to these issues. Iceland is viewed as an example of the implementation of the international rules that apply to these rights and their subsequent effect on Icelandic legislation.
Key words: The rights of the elderly, economic and social rights, administrative law.
Palabras clave: derechos de los mayores, derechos económicos y sociales, Derecho administrativo
Edgardo Buscaglia: «Poverty, Efficiency of Dispute Resolution Systems, and Access to Justice in Developing Countries», pp. 19-46.
An effective judiciary should offer access for the population regardless of socio-economic status, and should provide predictable results and adequate remedies. Many judiciaries, however, suffer from a chronic lack of quality in its court rulings, lack of transparency, and endemic corruption. The basic elements of an effective judicial system are therefore missing, including relatively predictable outcomes within the courts; accessibility to the courts by the population, regardless of income and educational level; reasonable time to disposition; and adequate court-provided remedies. In cases such as these, lack of confidence in the administration of justice runs high, and is most pronounced among small economic units and low-income families. This paper addressed the problem of how to monitor and later eradicate cultural, socio-economic, geographic and political barriers to conflict resolution that do affect the capacity of the poorest segments of the populations to demand for court services. It also aims at empirically identifying the supply and demand related barriers to access conflict resolution mechanisms for the poorest segments of societies in a sample of UN member states.
Key words: Administration of justice, access to the courts, poverty, conflict resolution.
Palabras clave: Administración de justicia, acceso a los tribunales, pobreza, resolución de conflictos
Isabel Fanlo Cortés: «Justice for the Poor in the Hands of the Lawyers? Some Remarks on Access to Courts and Legal Aid Models», pp. 47-66.
The principal purpose of this paper is to examine the evolution and main features of the political models developed in response to the problems related the access to courts by the poor. These models are built by considering, albeit inevitably in outline, both the concrete institutional solutions adopted in the Western legal systems and the normative proposals on which those solutions are based.
Among the various issues –some normative (for example, issues of political legitimacy and the role of the State), and some other more strictly sociological (the development of welfarism and the impact of cultural traditions in different societies)– that an analysis of this kind usually addresses, the attention is focused on the role performed, or which should be performed, by the professional figure of the lawyer in solving the problems of access to courts by the poor. The provision of a legal expert, in fact, far from constituting a trend in contemporary legal systems, has instead long been a feature shared by every model of so called «legal aid».
Key words: access to courts, welfare state, poverty, lawyers.
Palabras clave: derecho a la tutela judicial, estado de bienestar, pobreza, abogados.
Vyacheslav V. Gavrilov & Victoria V. Subocheva: «The Work of the European Court of Human Rights and the Execution of Its Judgments in the Context of Poverty Reduction», pp. 67-90.
In spite of significant development of international law of human rights, at present time statistics of human rights violations is rather high. Moreover, mainly the rights of poor part of population are prejudiced. Though poverty is connected with material values (their lack), protection of various rights provided for by the European Convention for the Protection of Human Rights and Fundamental Freedoms and Protocols to it has relation to poverty reduction. The important component of mechanism of norms on human rights realization is the work of international tribunals, including the European Court of Human Rights, which deal with complaints of individuals on human rights violations by states.
Issues related to the role of work of the European Court of Human Rights in the process of the poverty reduction, the effectiveness of the right of individual to apply to the Court, that depends on a successful solution of the question of execution of the Court judgments, and also the problem of execution and application of the Court judgments as exemplified by the situation in the Russian Federation are considered in the present paper.
Key words: European Court of Human Rights, Execution of judgements, Poverty reduction, Russian Federation.
Palabras clave: Tribunal Europeo de Derechos Humanos, ejecución de sentencias, reducción de la pobreza, Federación rusa.
Gábor Kardos: «The Internationally Recognized Right to Housing: Implications and (Some) Applications», pp. 91-100.
Under international law the States are not under the duty to guarantee an individual justiciable right to housing at home but to provide legal security in housing, and to pursue an active and adequate housing policy, and protect against high rents. Although international complaint procedures attached to European Social Charter or to UN Covenant on Economic, Social and Cultural rights may be seen as a kind of procedure of international justiciabilty its real form international law is indirect: the protection via civil and political rights in individual cases in front of international human rights courts or bodies. Sophisticated framework legislation for housing, with clearly defined goals and target groups, with good implementation regulation, with timetable and with necessary financial resources and incentives is really a must for the realisation of the right to housing. But aiming to high and to provide a justiciable right might lead to disappointments, especially if the financial resources are not guaranteed. But constitutional or legislative recognition of right to housing (and landmark cases) could create a powerful tool for the advocates of specific communities involved in evictions proceedings; and could pave the way to a national program for housing assistance at least in emergency circumstances.
Key words: right to housing, European Social Charter, justiciable rights.
Palabras clave: derecho a la vivienda, Carta Social Europea, derechos judicialmente exigibles.
Arturs Kucs, Zane Sedlova & Liene Pierhurovica: «The Right to Housing. International, European and National Perspectives», pp. 101-123.
Following the introduction on the status of the right to housing, the first chapter gives an overview of the right to housing in the international arena, the main instrument being the International Covenant on Economic, Social and Cultural Rights. It is argued that despite the lack of consensus on the precise content of this right there is a growing agreement on the minimum core obligations for states to ensure the implementation of the most essential elements of the right to housing. The second chapter contains important facts from the Council of Europe` perspective of housing rights. The content of housing is seen within the framework of the European Convention on Human Rights and Fundamental Freedoms and the Revised European Social Charter. In the third chapter the European Union housing rights are analyzed. The authors provide an insight into the legal framework before and after the entry into force of the Lisbon Treaty. The enforceability of the «right to housing assistance» guaranteed in EU Charter of Fundamental Rights is analyzed critically. Lastly, the fourth chapter analyzes some national perspectives as regards the right to housing. The Dutch statutory guarantees and South African Constitutional Court`s jurisprudence are examined. The authors conclude the article with a number of final remarks.
Key words: right to housing, state obligations, concept of home.
Palabras clave: derecho a la vivienda, prestaciones públicas, concepto de hogar.
Antonio-Luis Martinez-Pujalte: «Public Disability Policies as Policies Against Poverty», pp. 125-140.
Several recent studies, promoted mainly by the World Bank, have underlined and statistically confirmed the close relation existing between disability and poverty, mostly due to the survival of historical social and cultural prejudices which consider persons with disabilities as useless for the society. The present paper takes a look at this relation and tries to examine its main causes, and defines as focal point of disability policies the promotion of persons with disabilities to education and employment, which in turn are also the main instruments to fight against poverty. Finally, the consideration of disability in cooperation development policies is also examined. A close attention is paid throughout the paper to the implications of the UN Convention on the Rights of Persons with Disabilities -approved by the General Assembly of the United Nations Organization on the 13th of December 2006- on the different issues examined.
Key words: Disability, poverty, inclusive education, employment.
Palabras clave: incapacidad, pobreza, educación inclusive, empleo
Dimitar Mircev: «Some Thoughts on the Dependency of Human Rights, Civil Liberties and Multiculturalism on Socio-Economic Development in the Balkan Region», pp. 141-156.
This short essay deals, in a very generalized way, with the results of a research study on the correlation between the guarantee of human rights, civil liberties and multiculturalism in the Balkan region, and the level of socio-economic development of individual countries and the region as a whole, compared with the rest of the continent. The research project is of a standing or longitudinal character, based upon analysis of annual statistical reports and indicators of several world or European sources on both variables of the hypothesis: the level of implementation of human rights, civil liberties, Multiculturalism and the dynamics or rates of Southern European Development. Current results are often presented at academic conferences and gatherings.
Key Words: Balkans, Human Rights, Multiculturalism, Development
Palabras clave: Balcanes, derechos humanos, multiculturalismo, desarrollo.
Susana Sanz Caballero: «The European Social Charter as an Instrument to Eradicate Poverty: Failure or Success», pp. 157-170.
The purpose of this paper is to ascertain to what extent the Council of Europe works against poverty through the ESC system. With this purpose in mind, we analyze the contents of the ESC and the RESC. Secondly, we study to what extent these two covenants are concerned about the eradication of poverty. Finally, we examine the jurisprudence of the ESC’s organs on the fight against poverty. After having studied all these elements, we conclude that the ESC (and the Council of Europe itself) is an effective «poverty eradication» oriented tool, but only if states parties implement the ESC organs jurisprudence (which, unfortunately, does not take the form of judgments delivered by a European court).
Keywords: European Social Charter; poverty eradication.
Palabras clave: Carta Social Europea, erradicación de la pobreza
Miguel Juan Taboada Calatayud, Jesús Campo Candelas & Patricia Pérez Fernández: «The Accountability of Multinational Corporations for the Violation of Human Rights», pp. 171-186.
The recent arrival into global trade of Multinational Corporations as a new and powerful legal player has had a huge impact on the sphere of human rights compliance, all over the world in general and on developing and non democratic countries in particular. That is so mainly because the Human Rights treaties and instruments were developed neglecting MNCs as legal actors. Such an absence of regulation has been tried to be compensated through different means, such as corporate self regulations or the extraterritorial application of national jurisdictions. The combination of both mechanisms might be another solution.
Key words: human rights, multinational corporations, universal jurisdiction, Alien Torts Claim Act, self-regulation.
Palabras clave: derechos humanos, empresas multinacionales, Ley de Exigencia de Responsabilidades Internacionales, autorregulación.
Khaydarali Yunusov, Valeriya Ok & Husniddin Ochildiyev: «The Roles and Responsibilities of Transnational Corporations with Regard to Human Rights», pp. 187-204.
This article in its present form discusses the multifaceted roles played by transnational corporations (TNCs, also called Multinational Enterprises (MNEs) or Multinational Corporations (MNCs) in international human rights law. The initial idea was to examine main international instruments governing the responsibilities of TNCs with regard to human rights, as well as to provide possible leads on how to improve the theoretical and practical aspects in order to reduce the number of cases of TNCs’ involvement in human rights abuses.
Transnational corporations are essential participants in the structure of international law, but that current soft law does not by itself amount to a sufficient platform by which to recognize their international legal personality. Negative role played by TNCs, is the impetus for the development of international law in the field of human rights, calling the activities of TNCs under some control.
There is also growing recognition of the importance of designing implementation steps that will give life to the standards’ application. Hence, more discussion is occurring related to monitoring mechanisms that might provide for review, evaluation, revision and performance improvements.
Key words: Transnational corporations, legal personality, human rights abuses, Soft law.
Palabras clave: empresas multinacionales, personalidad juridical, abusos de los derechos humanos, derecho dúctil.
