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Inhibitions to the Enforcement of Economic and Social Rights in the Uk and Nigeria: a Study of Two Worlds

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Inhibitions to the Enforcement of Economic and Social Rights in the Uk and Nigeria: a Study of Two Worlds INHIBITIONS TO THE ENFORCEMENT OF ECONOMIC AND SOCIAL RIGHTS IN THE UK AND NIGERIA: A STUDY OF TWO WORLDS. By Olumese Olumese Nottingham Law School April 2019 A thesis submitted in partial fulfilment of the requirements of Nottingham Trent University for the degree of Doctor of Philosophy Copyright Statement This work is the intellectual property of the author. You may copy up to 5% of this work for private study, or personal, non-commercial research. Any re-use of the information contained within this document should be fully referenced, quoting the author, title, university, degree level and pagination. Queries or requests for any other use, or if a more substantial copy is required, should be directed in the owner(s) of the Intellectual Property Rights. i Acknowledgement I am grateful to the Almighty God for seeing me through the entire process of this research. I would like to thank my wife, Ima for her support and understanding. I would never have achieved this without her encouragement. I am indebted to my kids, Caleb and Ivanna, their smiling and beautiful faces have been a source of inspiration to me and they can never truly understand (at least not for some years to come) why daddy was always locking himself away in his study. I thank my supervisors, Dr Austen Garwood-Gowers, and Elspeth Berry for their excellent efforts at supervising this research. They were always available to offer advice on ways to improve my research as well as signposting relevant materials. I would like to specially thank them for patiently going through all my work including those meant for presentation and publication outside of my studies. Finally, I wish to commend the NTU library staff, especially the inter-library loan team at Boots Library, who were very unsparing in their efforts at ensuring that the materials I needed were available to me. ii Abstract This research analyses the socio-legal approaches taken to realising socio-economic rights (SER) in Nigeria in comparison to the UK, within the sphere of international human rights jurisprudence. The implementation of SER is a much-debated issue in human rights practice by academics from various disciplines, and there is a plethora of objections to SER being described as rights in the first place, not to mention their being justiciable. This aptly captures the situation in Nigeria and the UK. This position is informed by the history of SER as some states regard SER as nothing but pious declarations, and any sort of judicial ‘interference’ in the enforcement of SER is criticised as tying the hands of governments with unrealistic commitments by those (courts) who lack the democratic legitimacy and institutional capacity to make such decisions. However, I argue that the involvement of the courts can help shape social and public policy in order to realise SER. And how would the judiciary go about doing this, without ‘encroaching’ on an area that is widely thought to be the exclusive preserve of parliament and the executive? I examine this, drawing on perspectives from Nigeria and the UK. Because of the expansive scope of the subject of SER, the focus of this research is limited to the rights to work, housing and healthcare in Nigeria in comparison to the UK. I have chosen these rights because it can be argued that these three set of rights necessarily encompass the other aspects of SER and bear vital linkages to them. The framework and standard of measurement for these rights are set in Articles 6 (work), 11 (housing) and 12 (healthcare) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) being the primary source of this research. To aid my analysis of these rights, I draw on the provisions of regional human rights legislation such as the African Charter, and the European Convention on Human Rights. These together with the literature on these rights are then integrated with related country-specific legislation on the above rights. Through this process, I have been able to generate and analyse common themes by seeking the factors that are responsible for the various approaches to the realisation of SER in both jurisdictions. Although the UK and Nigeria have ratified the ICESCR, they are yet to incorporate ICESCR rights into their national laws. Despite this similarity, their approach to the realisation of SER from an international perspective does take on different pathways. This research does not seek to ask why these differences in approaches occur but aims to identify and analyse common iii themes present in SER’ theory and practice in both jurisdictions with the aim of providing an original academic contribution to the ongoing discourse of SER enforcement in both jurisdictions, given the increase in rights-based approaches to social policy. Finally, adopting Henry Shue’s idea of basic rights, I argue for the streamlining of the rights in the ICESCR through the process of a minimum core for SER which I believe will be more effective in the realisation and enforcement of SER in the UK and Nigeria. iv TABLE OF CONTENTS Copyright ---------------------------------------------------------------------------------------------------i Acknowledgement ----------------------------------------------------------------------------------------ii Abstract ---------------------------------------------------------------------------------------------------iii Table of Contents -----------------------------------------------------------------------------------------v List of Abbreviations ------------------------------------------------------------------------------------xi Table of Legislation -------------------------------------------------------------------------------------xii Table of Cases ------------------------------------------------------------------------------------------xiv Chapter one ------------------------------------------------------------------------------------------------1 1.1. Introduction---------------------------------------------------------------------------------------1 1.1.1. Research Context------------------------------------------------------------------------1 1.1.2. Research Aim ---------------------------------------------------------------------------3 1.1.3. Research Questions---------------------------------------------------------------------3 1.1.4. Research Focus--------------------------------------------------------------------------3 1.1.5. Structure of the Thesis -----------------------------------------------------------------5 1.2. Research Methodology--------------------------------------------------------------------------7 1.2.1. Doctrinal Legal Research----------------------------------------------------------------7 1.2.2. Justification of Research Methodology------------------------------------------------8 1.3. Comparing the UK and Nigeria - Contribution to knowledge -----------------------------9 1.3.1. Reasons and Relevance of comparing different legal systems --------------------9 1.3.2. Expected values and outcomes --------------------------------------------------------14 Chapter two ----------------------------------------------------------------------------------------------15 2.1 Relevant contemporary themes in SER debate ---------------------------------------------15 2.1.1. Introduction------------------------------------------------------------------------------15 2.1.2. Universalism versus relativism of Human Rights----------------------------------15 2.1.3. Universalism---------------------------------------------------------------------------16 v 2.1.4. Relativism------------------------------------------------------------------------------19 2.1.5. Hybrid Ideas. ---------------------------------------------------------------------------21 2.1.6. The relevance of the universalism versus cultural debate--------------------------23 2.2 Judicial Enforceability of SER ----------------------------------------------------------------25 2.3 The attitude of local courts and the principle of interdependence of rights--------------26 2.4 Conclusion --------------------------------------------------------------------------------------27 Chapter three---------------------------------------------------------------------------------------------28 Legal and moral philosophy of SER 3.1 Introduction- ------------------------------------------------------------------------------------28 3.2. Theories of rights analysis – SER and the search for a foundational theory of human rights----------------------------------------------------------------------------------------------31 3.2.1 Will Theory (Choice Theory) --------------------------------------------------------32 3.2.2. Interest (Benefit) Theory -------------------------------------------------------------37 3.3. Rights and duties in SER theory--------------------------------------------------------------40 3.3.1. The form and functions of rights under the Hohfeldian analytical system-------40 3.3.2. The Hohfeldian claim right and SER theory-----------------------------------------43 3.4. Identifying the nature of rights and duties in SER theories -------------------------------46 3.4.1 Arguments against SER as claimable rights-------------------------------------------47 3.4.2 Arguments in support of SER as claimable rights------------------------------------49 3.5 Conclusion --------------------------------------------------------------------------------------54 Chapter Four----------------------------------------------------------------------------------------------55
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