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Social Rights Jurisprudence
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Social Rights Jurisprudence
Cambridge University Press
9780521860949 - Social Rights Jurisprudence - Emerging Trends in International and Comparative Law - Edited by Malcolm Langford
Frontmatter/Prelims

SOCIAL RIGHTS JURISPRUDENCE

In the space of two decades, social rights have emerged from the shadows and margins of human rights jurisprudence. The authors in this book provide a critical analysis of almost two thousand judgments and decisions from twenty-nine national and international jurisdictions. The breadth of the decisions is vast, from the prevention of forced evictions to the regulation of private medical plans to the development of state programs to address poverty and illiteracy. The jurisprudence not only implicates our understanding of economic, social, and cultural rights but also challenges the philosophical debates that question whether these rights can and should be justiciable.

Malcolm Langford is Research Fellow and Director of the Human Rights and Development Research Group at the Norwegian Centre on Human Rights at the University of Oslo. The author of many articles and books on human rights, economics, and law, he also advises a wide range of UN agencies on human rights and development issues and has drafted a number of key international standards in the field of economic, social, and cultural rights. He previously worked at the Geneva-based Centre on Housing Rights and Eviction (COHRE), where he founded an international litigation program, and he continues to act as an advisor in domestic and international litigation.


Social Rights Jurisprudence

Emerging Trends in International and Comparative Law

Edited by

Malcolm Langford

University of Oslo


CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi

Cambridge University Press
32 Avenue of the Americas, New York, NY 10013–2473, USA

www.cambridge.org
Information on this title: www.cambridge.org/9780521678056

© Cambridge University Press 2008

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2008

Printed in the United States of America

A catalog record for this publication is available from the British Library.

Library of Congress Cataloging in Publication DataSocial rights jurisprudence : emerging trends in international and comparative law / edited byMalcolm Langford.p. cm.Includes bibliographical references and index.ISBN 978-0-521-86094-9 (hardback) – ISBN 978-0-521-67805-6 (pbk.)1. Sociological jurisprudence. I. Langford, Malcolm. II. Title.K370.S648 2009340′.115 – dc22 2008012858

ISBN 978-0-521-86094-9 hardback
ISBN 978-0-521-67805-6 paperback

The image on the cover of the book is the painting ‘Figures in a Township’ (1969) by Ephraim Ngatane. This image is used with the permission of the Bruce Campbell Smith Collection in South Africa. All efforts have been made to obtain permission to reproduce the artwork from the artist’s heirs and estates. If there are any inquiries, please contact malcolm.langford@nchr.uio.no

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet Web sites referred to in this publication and does not guarantee that any content on such Web sites is, or will remain, accurate or appropriate. Information regarding prices, travel timetables, and other factual information given in this work are correct at the time of first printing, but Cambridge University Press does not guarantee the accuracy of such information thereafter.


There is growing acceptance all over the world that certain core fundamental values of a universal character should penetrate and suffuse all governmental activity, including the furnishing of the basic conditions for a dignified life for all.

I believe that 21st-century jurisprudence will focus increasingly on socio-economic rights.

Justice Albie Sachs

Constitutional Court of South Africa*

Albie Sachs, Social and Economic Rights: Can They Be Made Justiciable? (Southern Methodist University School of Law, 1999) p. 18

.


Contents

Foreword – Philip Alston
ix
Preface
xv
PART ONE. OVERVIEW
1
1.        The Justiciability of Social Rights: From Practice to Theory
Malcolm Langford
3
2.        The Challenges of Crafting Remedies for Violations of Socio-Economic Rights
Kent Roach
46
3.        The Right to Legal Aid in Social Rights Litigation
Andrea Durbach
59
PART TWO. SELECT NATIONAL JURISDICTIONS
73
4.        South Africa
Sandra Liebenberg
75
5.        India
S. Muralidhar
102
6.        South Asia
Iain Byrne and Sara Hossain
125
7.        Colombia
Magdalena Sepúlveda
144
8.        Argentina
Christian Courtis
163
9.        Brazil
Flavia Piovesan
182
10.       Venezuela
Enrique Gonzalez
192
11.       Canada
Martha Jackman and Bruce Porter
209
12.       The United States
Cathy Albisa and Jessica Schultz
230
13.       Hungary
Malcolm Langford
250
14.       France
Laurent Pech
267
15.       United Kingdom
Jeff A. King
276
16.       Ireland
Aoife Nolan
295
PART THREE.REGIONAL PROCEDURES AND JURISPRUDENCE
321
17.       African Regional Human Rights System
Danwood Mzikenge Chirwa
323
18.       The Inter-American Commission on Human Rights
Tara J. Melish
339
19.       The Inter-American Court of Human Rights
Tara J. Melish
372
20.       European Court of Human Rights
Luke Clements and Alan Simmons
409
21.       The European Committee of Social Rights
Urfan Khaliq and Robin Churchill
428
22.       European Court of Justice
Philippa Watson
453
PART FOUR.INTERNATIONAL HUMAN RIGHTS PROCEDURES AND JURISPRUDENCE
475
23.       Committee on Economic, Social and Cultural Rights
Malcolm Langford and Jeff A. King
477
24.       Committee on the Elimination of Racial Discrimination
Nathalie Prouvez
517
25.       Human Rights Committee
Martin Scheinin
540
26.       Committee on the Elimination of Discrimination Against Women
Leilani Farha
553
27.       Committee on the Rights of the Child
Geraldine Van Bueren
569
PART FIVE.SPECIAL TOPICS
589
28.       The International Labour Organisation
Colin Fenwick
591
29.       Liability of Multinational Corporations
Sarah Joseph
613
30.       The World Bank Inspection Panel
Dana Clark
628
Notes on Contributors
641
Table of Authorities
649
Index
677

Foreword: Philip Alston*

This book provides eloquent testimony to the fact that the debate about the justiciability of social rights has come of age. For many years the debate was dramatically stuck in the mire of what might be termed a name-calling phase, in which opponents contented themselves with proclaiming that social rights were simply not susceptible to judicial review and implementation. This argument was pursued with particular vigour by those who clung to the old certitudes that social rights were by their very nature ‘positive’ and thus not amenable to judicial consideration. In contrast, civil and political rights were said to be inherently ‘negative’ and were thus eminently well suited to being litigated in courts. Indeed, despite a literature which is by now extensive, and which very effectively debunks this simplistic dichotomy,1 such arguments are still made by some participants in the international human rights debate.2 By and large, however, the growing number of social rights cases decided by judicial and quasi-judicial institutions, the range of issues they deal with, the diversity of jurisdictions in which they have occurred, and a thriving scholarly literature have combined to make such debates largely irrelevant in practice.

After the name-calling phase, the second phase in the international debate over justiciability was largely devoted to enthusiastic discussions of the jurisprudence emerging from the South African Constitutional Court in its application of the provisions of the South African Constitution. To a significant extent that constitution reflected the approach adopted in the International Covenant on Economic, Social and Cultural Rights (ICESCR). Rarely have developments in the field of comparative constitutional law been so dominated by the jurisprudence not only of a single country but in this case of a single court. Many legal sceptics and even some of those with philosophical reservations were won over by the combination of conceptual experimentalism with nuance and caution with which the Constitutional Court approached its challenging task. But the extent to which this debate focused so heavily on the approach adopted by a single country also had its downside.

The only other country which was attracting attention was India, where the Supreme Court approached public interest litigation with a spirit of adventure. This jurisprudence, however, actually had a much less significant impact on the emergence of an international constituency favouring the development of social rights justiciability than was the case with the South African experiment. The reason was partly because of the almost serendipitous nature of the Indian Court's ‘epistolary jurisdiction’, which meant that a case could be launched and standing secured merely as a result of the Supreme Court agreeing to take up a case on the basis of a letter of complaint. In addition, the Indian developments were often not underpinned by clear constitutional provisions but depended rather heavily on progressive and creative interpretations of the right to life. Nor were all of the judgments as systematically grounded as was the case in South Africa. These problems are critically canvassed in detail by several of the contributions to this volume.

In the third and current phase of the justiciability debate, comparative constitutional lawyers have begun to transcend their fixation on the South African and Indian courts. In part this is because the former court has produced too few relevant judgments to keep the debate focused upon itself. In part it is because of an increasingly critical literature drawing attention to the limitations of some of those judgments from various perspectives, including in terms of their impact on the situation on the ground and the Court's lack of success in fashioning procedural remedies designed to provide adequate follow-up. This is not to say that the Court's jurisprudence has not produced important achievements, as Liebenberg has noted in this volume. But the transition to the third phase is by no means premised on disillusionment with the South African experiment. On the contrary, the insights provided in the first few cases decided by that Court have provided the foundations upon which comparable developments have been able to take on a life of their own in other jurisdictions and triggered an interest in uncovering case law from elsewhere.

Thus, today, as this book shows par excellence, the debate has moved into a more mature and diverse phase with a wide range of national courts, particularly in Latin America, South Asia, and some Western countries, adopting positions in relation to social rights and an increasingly expansive array of international instances generating social rights ‘jurisprudence’. Another of the volume's achievements is to give a sense of the way in which these two developments have complemented one another. Neither at the domestic nor the international level did the relevant developments occur in isolation or in ignorance of what was being done elsewhere. In this regard it is instructive to recall briefly the contribution of the United Nations Committee on Economic, Social and Cultural Rights in the justiciability debate.

Although the ICESCR was adopted in 1966 and entered into force in 1976, it was not until 1987 that a specialised expert committee, the ESCR Committee, was created to monitor State parties’ compliance with their obligations. In the years immediately following the adoption of the Covenant, the question of a role for the courts in the implementation of social rights was raised but subsequently dropped rather rapidly. The International Conference on Human Rights, held in Teheran in 1968, called upon ‘all Governments to focus their attention . . . on developing and perfecting legal procedures for prevention of violations and defence of economic, social and cultural rights’.3 In response, the UN Secretary-General undertook a detailed ‘preliminary study of issues relating to the realization of economic and social rights.’4 In terms of national-level measures to promote respect for social rights, the study noted the desirability of both constitutional and legislative measures. But it also asserted that article 8 of the Universal Declaration (recognizing ‘the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’) applied ‘of course, also to economic, social and cultural rights’.5 The study went on to note that many of those rights were capable of being protected at the national level ‘by the ordinary courts’ and that, in many respects, that was already the situation in various States.6

But these suggestions essentially fell victim to the emphasis upon international obligations on the part of the developing countries which promoted the social rights agenda most actively within the UN setting. Thus, the Secretary-General's report led to the commissioning of a major study prepared under the auspices of an official in the Government of the Shah of Iran, Manouchehr Ganji.7 His very lengthy study ignored ‘national norms and standards governing the realization of economic, social and cultural rights’ on the grounds that such an endeavour would have ‘vastly exceeded the scope and space allotted to the study’.8 Instead, in a preview of many of the later debates over the content of the right to development, the study focused almost exclusively on the problems faced by developing countries in overcoming poverty. It did, however, note in passing that a study on the national dimensions of social rights, presumably including the role of the courts, ‘should be undertaken in the future’.9 But the matter would not be taken up again within the UN until after the creation of the Committee on Economic, Social and Cultural Rights.




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