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    of 19
    UNCESCR us Vol WL. WLR Intemational Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Labour Organisation Jurisprudentie Bestuursrecht (Netherland Joint Committee on Human Rights (United Kingdom) Local Government Reports (United Kingdom} Law Quarterly Review (United Kingcom) Landelifk Jurisprucentie Nummer (Netherlands) Modern Law Review Non-Governmental Organisat Nederlandse Jurisprudentie (Netherlands) Official Journal (European Community) Public Interest Litigation Public Law Queen’s Bench Republican Act (Philippines) Revised Statutes of Prince Edward Island (Canada) South Africa South African Journal on Human Rights Spanish Constitution Supreme Court of Appeal (South Africa) Supreme Court Cases (India) Supreme Court Reports (Canada) Supreme Court Reports (India) Supreme Court Reports Annotated (Philippines) Universal Declaration of Human Rights United Kingdom United Kingdom House of Lords ited Kingdom Human Rights Reports United Nations United Nations Committee on Economie, Social and Cottural Rights United States Volume Weekly Law (United Kingdom) Weekly Law Reports (United Kingdon SOME INTRODUCTORY REMARKS ON THE JUSTICIABILITY OF ECONOMIC AND SOCIAL RIGHTS IN A COMPARATIVE CONSTITUTIONAL CONTEXT FONS COOMANS: _In 1998 the Argentinian Court of Appeal imposed a duty on the govern- | ment of Argentina to manufacture and provide a vaccine to protect 3.5 million people against a specific form of fever that threatened their lives. The state had argued that it was unable to carry out a massive vaecina, tion campaign due to the lack of an adequate quantity of the va However, the Court, relying on international and constitutional pr sions on the right to health, held thatthe state had a positive obligation to produce and provide the vaccine.? In 1989 the Dutch Supreme Court ruled that students who relied on the right to education, laid down in Article 13 International Covenant Economic, Social and Cultural Rights, to stop rising fees for higher edu, cation, were unsuccessful in their claim, because this provision was not directly applicable, The court held that the treaty clause to make higher education progressively free implied positive obligations for the state Which could not be enforced clrecily by individuals in a procedure before a court of law2 Both examples, although on different subject matters and in different domestic settings, deal with positive (financial) measures to be taken by the state aimed at realising human rights laid down in the law. However, the outcome was rather different. How do domestic courts deal with cases brought by individuals that aim at the protection of their economic and social rights? Do economic and social rights only exist on paper as Part of treaties and constitutions to which governments often pay lip- service at international fora? Or do they really mean something in practice for those who want to invoke these rights before the courts? In addition, how do domestic courts reason in such cases? Those are some of the questions that were discussed at a seminar organised by the Centre for Human Rights of Maastricht University on 18-19 November 2005. The Case of Manca C. Vienonte vi present book contains the revised papers that were presented at this meeting, The Status of Economic and Social Rights 4 The seminar departed from the principle laid down | ration of the Vienna Worl the Final Decla- Conference on Human Rights of 1993 that ‘all human rights are universal, indi interdependent and interrelated’.* This means that both civil and political rights id economic, social and cultural rights must be treated in an equal manner, on the same footing [and with the same emphasis. Consequently, everyone should have the ight to an effective remedy in case of an alleged violation of his or het / fundamental rights, as laid down in Article 8 of the Universal Declaration , of Human Rights. However, it is a matter of common knowledge that itis ‘much more difficult in practice to enforce enjoyment of an economic or social right before a court of law than is enforcement of a civil and polit- ical right. The UN Committee on Economic, Social and Cultural Rights was aware of this imbalance when it stated in its General Comment no. 9 (1998) on the domestic application of the Covenant on Economic, Social and Cultural Rights; “The adoption of a rigid classification of economic, ts which puts them, by def le with the principle. that the two sets of human rights are indivisible and interdependent’) For many years the inferior status of social and economic rights has had @ negative impact on the possibilities to claim effective implementation of these rights, both at the internal opments at level that aim at strengthening the justici of social and economic rights. Mention can be macle of complaints ‘procedures under the Convention on the Elimination of All Forms of Di crimination Against Women, the European Social Charter and the Proto- "col of San Salvador to the American Convention on Human Rights. In addition, in the framework of the UN discussions are currently going on about a future complaints procedure under the International Covenant on ‘Beonomic, Social and ing story.* Furthermor y of social and economic rights has drawn increasing academic interest, although there is still ess interest for pL hep /weew the jucticial enforcement of civil and political rights. A reason for this greater interest in the protection of economic and social rights is the pro- gressive development of “good practices’ and creative case law ¢; from a number of domestic systems. The most well-known examples are India and South Africa, The Aims of the Seminar The seminar aimed at identifying ways and means of enforcing inter- and constitutional social and economic rights in a domes larly through judicial and quasi-judicial means, {n 1993, one commentator wrote that it is primarily the failure of national courts to give judicial consideration to economic and social righ hose rights have remained large a recent UN publication noted that ‘economic, social and cultural rights the lack of competence or willingness of the adjudicating bod examine and pronounce on claims affecting these rights’ aimed at taking stock of domestic developments since the early nineties of last century, It brought together researchers from regions all over the world who were asked to report in their papers about good pra their country, legal mechanisms and strategies that have contributed to strengthening the justiciability of social and economic rights at the domes- lic level. They were als legal and non-legal obstacles that still hinder an effective enforcement of social and economic rights at the domestic level but tain, he serni covered a selection of countries from all over the world. Both countries with a civil law system and a common law system were ituations in countries from the North as well as h were discussed. The following country studies 1e present book: India and the Philippines for Asia; Argentina and Colombia for Latin America; Canada for North America; South Africa for the African region; for Europe: Denmatk, the Nether- Jands, Hungary, Spain and the United Kingdom. For the European region a study on social rights protection under European Community law has been added. Countries from the South have been selected because of promising legal developments in the area of social and economic rights + MCR Crave Social and protection, For the selection of Northern countries, other factors were taken into account, The idea was to cover both traditional welfare states with old constitutions (Denmark and the Netherlands) and states with a ‘mare recent constitutional tradition of protecting social and economic rights (Spain and Hungary). Furthermore, Canada was selected for its welfare system, and its positive international human rights reputation and the UK for the possible impact of the Human Rights Act on the protection of social rights. Finally, all of the countries selected are state parties to the International Covenant on Economic, Social and Cultural Rights, with the exception of South Africa. The inclusion of the European Community was thought to be necessary in light of the increasing involvement of the Community in matters of social policy and the impact of the case law of the European Court of Justice on social issues that are part of the daily life of EU citizens, The present book deals with the protection of economic and social rights Generally speaking these rights contain claims to an adequate standard of living; they focus on the quality of onomic rights are legal claims {0 participation in economic life, to take part in professional activities in order to make.a living. These include the right to work, the free choice of ‘work and the right to property..Social rights focus on the legal protection of workers, but also on the legal protection as to the conditions under which people live and work. These include the right to jst and favourable work- nt to social security, the right to health and the right to an adequate standard of living, including food and housing, Cultural rights, lating to the concept of culture in a broad sense, are not covered as such in the present book, The right to education is often brought under this it clearly has links with economic and social rights. That is, within the scope of the present publication. The Justiciability Concept For present purposes, the concept of jus! definition; it means the extent to which an al lity may be given a broad -ged Violation of an economic ibjective right invoked in a particular case is suitable for judicial or quasi-judicial review at the domestic level. This may vary according 'o, for example, the characteristics of the case, the wording of the pro- on that is invoked, the attitude of the judge and the characteristics of 1e domestic system in particular. If the court finds a violation, it must be able to provide a remedy or redress Generally speaking, objections to the * Vyoen, ‘National Legit 0 3 (2005) 6.96 asa Source of fasts Socio-economic Rights’ 6 ESR. | justiciabilty of economic and social rights boil down to the incapacity of [_ courts to make decisions about the implementation of these rights, because \ these rights require making, political choices, setting priorities, allocating resources and rearranging budgets. Such decisions should be left to the bodies ina domestic system, not to courts, because they relate to icy issues and the inyplementation of political peogrammes, This relates to the issue of the separation of powers: courts would lack the democratic competence and legitimacy to make final judgements about socio-eco- nomic issues. Such decisions should be left to the political bodies, the legislature and the executive, that do have a democratic legitimacy, Courts that deal with such socio-economic policy issues become part of a process of political bargaining between competing domestic actors about the al cation of scarce resources, thus creating the danger of politicisation of the courts. As Cottrell and Ghai have arguec: ‘there is always a risk that courts May cross the line between indicating failures of policy and priorities and indicating so clearly what those priorities ought to be that they are actu- ally making policy’? In addition, it has been argued that courts lack the standards against which to assess the performance of in the area of socio-economic rights realisation due to the technical (econom- ic, budgetary) nature of the matters that are at stake. Judges would also lack the specific expertise to make such complex decisions, for instance in the area of housing or health. One of the key qui rar was whether developments in individual countries provided argi to counter objections to the justiciablity of economic and social rights, Relevant Questions ‘A number of questions were raised at the start of the seminar as guide- lines for discussion: did the domestic j protection of social and ‘economic rights become stronger over the years, and if so what are the common trends and what are the differences among countries? One gets the impression that positive developments took place in countries in the South (Colombia, Argentina, South Africa, India, the Philippines), while in countries in the North courts seem to be much more reluctant to deal with economic and social rights as justiciable rights. What for these diver he reasons ng trends and which strategies and developments are available to develop more common ground? For example, in connection with the European region, can positive obligations resulting from the rights laid down in the European Convention on Human Rights cont 1 ¢ p judicially enforcing socio-economic elements of civil and political rights? Do we witness a tendency of deference by the courts to the other branches of government when dealing with issues that involve making choices and ing to challenge administrative decisions that negatively affect fundamental rights of the human person, such as elements of the right to life and the right to health? Do social and economic rights provide ade- lower the level of ther aspect concerns the role and impact of international human rights law on social and eco- nomic rights on the domestic level: does international law have a value added to constitution: is respect? In addition, what is the role of special domestic features and conditions, such as the constitutional system, the legal culture of a country, the competence of judges to deal with cases, of resource allocation and their opinions about the relationship between the different branches of government? Finally, is the role of law and tussion that followed tation, the following key issues may be identified to identify the legal status of economic and social rights in each ind ial country. Are they part of the written constitution, and if so, how. ‘were they drafted? Are they phrased as rights that can be invoked directly by individuals or as programmatic obligations directed at the government? For example, the Hungarian constitution contains a number of enforce- able social welfare rights, while the South African Constitution lists a number of social and economic rights phrased as instructions to the govern= in other domestic systems economic and social rights are par the constitution, but phrased as Directive Principles for Governmental iclude India, the Philippines and Spain. The legislator led plementation of these Principles, In Canada, the Charter of Rights and Freedoms, which contains a few references to the protection of economic and social has been entrenched in the Constitution Act. It also provides for a right to ‘a remedy in the case of an alleged violation of these rights. In the United Kingdom a written constitu ‘king, but the Human 1998 has proven to be a helpful instrument and of potential for the protection of socio-economic rights. A related subject is the status and impact of international instruments dealing with economic and social rights in domestic systems, I is obvious that the potential influence of such treaties is stronger inamonist countries than in countries wi system. In Argentina and the Netherlands, ratified treaties are part of domestic law and even have a superior status. This does not mean, however, that economic and social rights th part of these treaties, such as the ICESCR, can be invoked directly by citizens before a court, That would depend on the self-executing nature of each individual treaty right which is determined, inter ala, by the word- ing of that treaty provi Colombia, westic system is generous towards international law. For example, the 1991 Constitution includes ILO conventions as part of domestic legislation. In the Philip: pines, international treaties are part of the law of the land, but their status is subordinate to the Constitution, In Denmark, being a du ntry, international conventions, are in principle subject to transformation poration, However, even international instruments which have not been transformed or incorporated are consicered as relevant legal sources, but their impact is weak. In the UK, also a dualist country, the ICESCR has not been incorporated in domestic law and its impact is also weak. ‘There is thus quite some variety in status and impact of international law provisions in domestic systems. In addition, a strong position for inter- national treaties in the domestic constitutional order is no guarantee for an effective protection of social and economic rights as the example of the Netherlands illustrates most all domestic systems demonstrate that tutional provisions ‘on economic and social rights are not sufficient for an effective realisation of these rights, There is a need for implementation through secondary and other (delegated) forms of legislation or executive and ad action. This is also emphasised in Article 2(1) ICESCR. Such legis ind executive measures may also provide for remedies. For example, the South African Social Assistance Act and the Social Security Agency Act create statutory socio-economic rights that are enforceable thr courts. In India, statutes give effect to + economic andl $0 listed in the Directive Principles of State Policy, s Employment Guarantee Act of 2005. in Canad: have adopted ant ights ras the National Rural jurisdictions ats 1, Tedress."° Although such legislation is important from the perspective of enti es and remedies, it should be recognised ianged quite easily in comparison to consti- tutional and treaty provisions, thus bearing the risk of a decrease in levels iJ of protection. In common law systems the role of legislation is clearly of I les its emphasis on precedents and remedies. This explains why in such systems there is still relatively le legislation dealing with the implementation of economic and social fights, although its size has been increasing in recent years. A comparison of country studies shows that in some countries a strong public litigation sector helps in bringing cases before the courts and in raising the quality of legal arguments presented which may lead to win- ning the case. This is the case in India where Public Interest Litigation has been developed over the years and in South Africa where community based organisations start a case on behalf of vietims and legal resource centres step in through 7 briefs, On an overall level it may be said that each elomestic system of protection of economic and social rights discussed in the present book has its own special features that are relevant. One should not, therefore, expect too ‘much from a comparative approach that puts a lot of emphasis on draw- ing general conclusions. However, one general conclusion that may be drawn is that the countries from the South, discussed in the present book, have been quite forward looking as fat as the protection of economic and social rights is concerned, Both the legislatures and the courts in these countries have been trying to establish a system of social protection by ‘implementing constitutional provisions and/or embarking on creative approaches to give meaning to economic and social rights. This is the case for Argentina, Colom pines. Also Hungary, a country that has gone through a period of political and eco- nomic transition, demonstrates that, irrespective of economic and financial iman rights that aim at the protection of the basic necessi ife deserve protection by judicial means. In other countries from North characterised by well-developed welfare systems, such as the lands and Denmark, the attitude towards economic and social rights is much more conservative and even reluctant. In these countries the meaning of constitutional provisions relating to these rights i and courts show little inclination to explore the possibilities of a stronger protection of these rights against the backdrop of cus in social services and the tendency to prioritise the financial situation of the state. Old ViKjOEN, sepa 9.8, 6 | provisions on social rights and traditional thinking consti tute obstacles to creative legal developments. Even Spain with its mi recent Constitution is no exception to this general trend in well-to- (countries. In the UK, through the application of the Human Rights Act i a gradual and cautious form of protection of som and social rights is beginning to emerge through a creat interpretation of a number of provisions of the ECHR that impl ligations for the state, {In its General Comment no. 3 on the | under the ICESCR, the UN Committee on Economic, Social and C | Rights said that ‘a minimum core obligation to ensure the satisfaction of | at the very least, minimum essential levels of each of the rights is incum | bent on every state party. Thus, for example, a state party in which ans significant number of individuals is deprived of essential foodstuffs, 0 essential primary health care, of basic shelter and housing, or of the mos basic forms of education is, prima faci, failing to discharge its obligation | under the Covenant’. In other wor content of a right must be j ensured under all circumstances. The state has po: realise such a minimum level of enjoyment of the discussed in the country studies shows different examples of the willing ress of the courts to adopt the concept of the prote level of enjoyment of the rights. In South Aftica, the Con: ' explicitly rejected such an idea in the Grootboom case. In the case law 0 other countries one can witness recognition of the core content concep! In India, the Supreme Court has identified the minimum core of the righ to food and succeeded in quantifying what constitutes such a core to by provitied to vulnerable groups. Courts in Argentina have confirmet that treatment and access to medication are essential elements of the righ to health as laid down in Article 12 ICESCR." The Constitutional Cour in Hungary has recognised that the Hungarian Constitution protects wd that is closely related to the right to human dignity. stitution recognises the concept of the essential conten and political must be protected under al cumstances (Article 53(1)). The Constitutional Court has applied core, although with less intensity, also to matters of socia ture of state parties’ obliga! 2, para 1), G 1 Onder of 28 November 201, in W.PAC no as discussed by Uite std Saf policy, such as the maintenance of a pul ver, the Court never identified a viola ight. Finally, in the UK the House of Lords has ruled that the refusal by he public authorities to provide overnight accommodation and food to destitute asyham seekers may amount to a violation of Article 3 ECHR {which implies respect for basic human dignity.!5 Although it may be dif icult to draw general conclusions on the application of the core content ‘concept, at least one c n that may be drawn from the cases men- tioned above is that the state has @ positive duty not to let a person fall below a certain level of dignity in terms of minimum essential levels of ‘socio-economic rights (health, food, housing, income). cial security system. How- n of the essential content of a Overview of Country Studies ‘The following overview will briefly highlight the main findings as to the justiciability of economic and social rights in the countries that have been covered in the present book. In Denmark the constitutional protection of economic and social rather poor and this is intensified by the fact that the Danish Cons! lacks a general non-

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