THE EFFECTIVE PROTECTION OF HUMAN RIGHTS: NEW DEVELOPMENTS
Panel formed with individual proposals.
The African Court was established to protect and promote human rights of Africans in Africa. Despite the fact that the African Court had heard and made decisions on rights that are instrumental to the development of any nation, such as the right to education in SERAP v Federal Republic of Nigeria, the resistance from the government of member states in terms of enforcement is a cause for concern. This paper examines the mandate of the African Court and tracks its progress since inception on the nature of decisions issued by the Court. It further investigates the level of compliance to the decisions of the Court vis-a- vis the resistance displayed towards the decisions of the Court as well as the extent to which the decisions of the Court have been able to influence policy change in Member States. The paper probes the role of the African Court in realizing the Aspirations of Agenda 2063 and makes recommendations on how to ensure enforceability of the judgements of the African Court.
The Law and Public Policy approach studies the dynamics by which human rights, made normatively mandatory, determine public policies. The law gets directly involved in: i) shaping legal-institutional arrangements of public policies - ii) distributing responsibilities between public and private entities - iii) modeling forms of coordination between them - iv) fulfilling the gaps between constitutional and executive provisions necessary to organize action towards planned objectives - v) structuring legal mechanisms of control, focused on substantive aspects, giving rise to judicialization. Public policies mobilize different communities and networks of activists and professionals. Due to specific political compositions, sound results can be achieved by sectors. And this can be a key factor of resistance to political setbacks. Comparative data of policies disciplined in the Constitution - health and education - when confronted with those that were not, such as public security, shows this.
Taiwan sees its National Human Rights Commission set up under the Control Yuan, a constitutional body similar to Ombudsman. It is a national monitoring body for international HR norms according to its organic law. However, its competence in the “research and development“ of human rights norms can be uncertain. I argue that, beyond the bridging function between national and international standards, an NHRI should be understood as a soft-law maker of international HR norms. International HR monitoring bodies increasingly refer to studies of NHRIs to support their observations. In other words, parallel to the role of national judges in the international judicial dialogue, NHRIs also take part in the (re)making of international human rights jurisprudence. Hence, Taiwan‘s NHRC should not simply identify itself as an extension of the Control Yuan. It should find its way to strengthen its R&D capacity and be prepared for an effective evolvement in the global human rights dialogue.
The object of the present study is the due process of law. The hypothesis is: if the conventionality control of international human rights is able to modify domestic laws, it is no longer enough to say due process “of law“. The aim of the study is to find out if it is possible to claim for a “conventional due process“. It was realized that due process was never a closed clause. Everyone agrees we also have a “constitutional due process“ and due process is enhanced by international human rights. The expression “conventional due process“ was already used in 2007 in Petition 1113/06 against Brazil by the Inter-American Commission on Human Rights. In addition, the same expression was used by the Inter-American Court of Human Rights in Cabrera García y Montiel Flores vs. Mexico. The study concludes that the expression “conventional due process“ is suitable to refer to the “due process of law“ shaped by the conventionality control based on international human rights.