Abstracts of theses and treatises
Barnsley IC (2007) Understanding the Domestic Implementation of International Law on Economic, Social and Cultural Rights. Unpublished Doctor of Philosophy thesis, University of Oxford, Oxford
This dissertation was prompted by the limited academic focus on the ‘real life’ domestic implementation of international human rights law, in particular, international law pertaining to economic, social and cultural (ESC) rights, including in developed countries. A basic conceptual framework for understanding the implementation of international human rights law is developed and then used to design and conduct an empirical examination of the implementation in Australia and Canada of the right to the highest attainable standard of health. In so doing, the dissertation seeks to contribute to our understanding of the processes of and factors affecting the domestic implementation of international law on ESC rights – in a general sense, through the development of the conceptual framework and specifically, through the detailed findings on the case study.
The case study findings concern how the right to health was implemented in both countries by way of legal and policy measures. Drawing on the conceptual framework, it is concluded that while neither country has ‘formally incorporated’ the right to health, there has been some ‘de facto incorporation’ by way of other statutory and constitutional law protections and some ‘indirect enforcement’ through judicial decisions, particularly in Canada. Similarly, there has been some ‘effective implementation’ of the right by way of policy measures that appear complementary with components of the right to health. None of these forms of implementation are complete. The case study also draws conclusions on key aspects of the State’s approach to its international law obligations on ESC rights, highlighting an acceptance on the part of both States of their international law obligations, but a resistance to any direct incorporation into domestic law. Finally, a range of factors that appear to have contributed to this incomplete degree of implementation are identified. These include the executive’s practice of assessing compliance prior to ratification, the prevailing government view that existing democratic checks and other human rights laws adequately protect all human rights, and the federal political structure and poor awareness of the right among the specialised bureaucracy in each country.
For further information on this subject look in the Australian Indigenous HealthInfoNet Bibliography or return to the theses page.
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