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  • Print publication year: 2016
  • Online publication date: December 2017

Chapter 8 - Admissibility Criteria in a Multi-Duty Bearer Framework

from PART III - CONTOURS OF A MULTI-DUTY BEARER FRAMEWORK

Summary

COMPATIBILITY RATIONE MATERIAE & LOCUS STAND I

INTRODUCTION

The locus standi and ratione materiae provisions in a complaints procedure are technical provisions that nonetheless have a great impact on its utility and potential effects. In light of this book we seek to discern how these provisions are best constructed in order to allow individuals to seek accountability for violations committed by States and NSAs. The two admissibility criteria are closely related and we therefore prefer to draw general conclusions after the examination of both issues.

In the next two sections we will explain the choices made by the drafters of the OP-ICESCR as a departure point for our analysis. The relevant provisions in other human rights treaties will be contrasted with the OP-ICESCR's provisions.

COMPATIBILITY RATIONE MATERIAE

In 1995, Tomaševski noticed a sort of paradox when she stated that ‘the subject-matter which regularly attracts most attention in discussions of violations of economic and social rights, namely structural and/or macro policy issues, is mentioned […] the least'. The reason for this, she argued, ‘is the lack of substantive standards, in a form of individual entitlements, that could be invoked in constructing a case for litigating their breach'. She consequently proposed to focus on procedural standards in litigation in order to resolve this. What Tomaševski arguably hints at is that there are obligations that are of a procedural (positive) nature for which breach does not violate a particular human right. In other words, not every violation of a human rights treaty obligation is a human rights violation. Each human rights treaty has an inter-State component which creates obligations erga omnes partes. This book focuses particularly on such inter-State obligations, in particular the obligation to cooperate internationally or the obligation to create an international enabling environment for the realization of human rights. Many of these obligations are certainly relevant in the context of direct obligations for NSAs. For example, IOs greatly influence the creation of an enabling environment that allows the realization of rights.

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