The Role of Courts in Enforcing Economic and Social Rights
Boon, Kristen, The George Washington International Law Review
THE ROLE OF COURTS IN ENFORCING ECONOMIC AND SOCIAL RIGHTS Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? Roberto Gargarella, Pilar Domingo & Theunis Roux eds. Ashgate, 2006. Pp. 1, 328, $124.95 (hardcover).
Courts and Social Transformation in New Democracies is an edited collection that explores the role of courts in enforcing social and economic rights.1 It focuses on two questions: (1) when do courts function as agents of social transformation in new democracies; and (2) when do courts act as voices for the poor by enforcing economic and social rights (ESRs)? The authors loosely agree that socially transformative courts are determined by judicial culture, efficient procedural rules, and constitutional entitlements. In response to the second question, however, the case studies demonstrate that indigent plaintiffs will choose courts as a mechanism to pursue poverty-related issues over other methods, such as political lobbying or policy reform, only where there is a comparative advantage to doing so. The book's underlying message is that the role of courts in ESR enforcement is still evolving.
This book contains three chapters on the theoretical relationship between ESRs, courts, and democracy, followed by case studies on several Latin American countries, South Africa, India, Hungary, and Angola.2 Each chapter addresses one or both of the two questions stated above, although not always directly. The book's organization has its pros and cons. Many of the chapters focus on Latin American constitutional courts, which are a rich source of ESR jurisprudence and deserve detailed attention. On the other hand, representative case studies from other continents could help to distill what is particular to the Latin American experience (or vice versa), but do not always succeed. Furthermore, like a number of recent collections on international human rights, this volume attempts to cross-fertilize human rights discourse.3 While the authors in this collection are top-flight, different methodologies and target audiences mean that some of the contributions address country-specific scholars, while others are meant for human rights specialists or political scientists.4
ESRs can be roughly defined as rights that require the government to satisfy the basic needs of its citizens-including food, health care and education.5 Although it is sometimes contended that ESRs are a "second generation" of rights that followed civil and political rights, this distinction has been largely discredited.6 All rights share a common heritage and are interrelated.7 For example, widiout an education, how is there a right to free speech? What is the value in the right to work if individuals are not permitted to assemble in groups to discuss the conditions of work? What is the right to life without die right to health? ESRs create a broad enabling framework for the exercise of all human rights.8
A number of important international instruments contain ESRs, including die International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Protocol of San Salvador.9 These treaties have been integrated into many modern constitutions, particularly after major political transitions.10 With the exception of India, whose constitution is from 1950, all of die countries surveyed in this book have constitutions that post-date 1989. These constitutions are the founding documents of new political orders: from apartheid to the African National Congress in South Africa; from military rule to democracy in several of die Latin American countries profiled in this collection; and from communism to a free market in Hungary. ESRs are a deliberate component of modern constitutionalism, and reflect an emerging desire to enshrine positive rights in national constitutions.11
Despite their current ubiquity, ESRs have often been criticized as unjusticiable because they are vague, costly, and too institutionally complex to implement.12 The critique, simply put, is how can courts, without a bureaucracy or policy expertise, create government prerogatives or oversee policies involving complicated issues like social security, housing rights, or health care? In their concluding reflections, the editors state that the three main arguments against judicial enforcement of ESRs are not well founded; namely that social rights are qualitatively different from civil and political rights, that judicial enforcement of social rights is incompatible with the separation of powers, and finally that judicial enforcement of social rights is undemocratic.13 While theoretical challenges to the legal status of ESRs are no longer taken seriously, it is readily apparent through the case studies and empirical data generally, that enforcement remains a problem in practice. A fuller treatment of justiciability would be useful, perhaps building on Roberto Gargarella's suggestion for a collective decision making model.14
The potential for court involvement in ESR enforcement is illustrated by the South African Constitutional Court, which provides a concrete example of how ESRs can be judicially enforced in a democratic and fulsome manner. In South Africa v. Grootboom,15 the Court was asked to determine whether the right of access to adequate housing under Article 26 of the South African Constitution protected a group of individuals who were evicted from a squatter settlement. It determined that in failing to provide temporary relief for people with no housing or for people in a crisis situation due to natural disasters, the legislation did not meet a "reasonableness" threshold.16 The court then ordered the government to devise and implement a program to progressively realize the right to housing for people in desperate need within its available resources. In Minister of Health v. Treatment Action Campaign17 the court evaluated a government designed program to deal with mother-to-child transmission of HIV at birth. The program permitted access to the drug nevirapine only in two testing sites, despite the fact that manufacturers of nevirapine had offered to make the drug available to the Government free of charge for five years to prevent mother-to-child transmission. The applicants claimed that the restrictions on the availability of nevirapine were "unreasonable" in light of the right to health. The Court agreed, finding that the Government's policy failed to address the needs of mothers and their newborn children who do not have access to the sites.18 The Court also found that the policy failed to distinguish between testing of programs to reduce mother-to-child transmission and access to health care services required by those who could not attend the sites.19 These cases provide an innovative example of social engagement by modern constitutional courts.
Siri Gloppen's chapter on "Courts and Social Transformation" makes a rich contribution to ESR literature by providing a framework for a court's "transformation performance," which she defines as the "altering of structured inequalities and power relations in society in ways that reduce the weight of morally irrelevant circumstances," such as socio-economic status, gender, and race.20 She identifies four components of the litigation process that determine the success or failure of social rights litigation: voice (the ability of the marginalized groups to voice their claims) , responsiveness (the willingness of courts to respond to their concerns), capability (the ability of judges to give legal effect to social and other rights in meaningful ways) and compliance (the extent to which these judgments are politically authoritative).21 Gloppen uses these factors to assess whether courts are socially conservative or agents of change.22 Her framework illuminates many of the book's case studies, and was directly incorporated by several contributors.
Gloppen's analysis, and the case studies generally, show that the most important factor affecting a court's transformative potential is whether economic and social rights are direcdy justiciable in a given legal system. The courts with the best track records for enforcing ESRs are those working under constitutions that allow individual rights of action on specific (as opposed to abstract) disputes, and on the basis of entrenched rights (as opposed to directives to state policies).23 For example András Sajó writes that in Hungary, the near complete separation between ordinary courts, which have the power to consider specific claims and enforce statutory schemes, and the Constitutional Court, with only abstract powers to review the conduct of the legislative and executive branches, has resulted in the Constitutional Court's isolation from concrete cases based on real disputes.24 The Hungarian Constitutional Court has consequently had a limited role in developing ESR jurisprudence.25 India presents an intermediate step, in that while ESRs are used as principles or directives intended to guide the interpretation of other constitutional provisions, activist judges on the Court have interpreted them as possessing real significance.26 As indicated above, the South African Constitutional Court has been one of the most receptive to ESRs, aided in large part by its jurisdiction to consider concrete ESR cases.27
The transformative potential of courts is also influenced by ratification and implementation of international treaties which contain ESRs. In most Latin American countries, international instruments are granted a superior status to national laws.28 Constitutions that incorporate the language of the UDHR, the ICESR, or countries in which international instruments have been ratified and implemented are most likely to create the necessary legal basis for enforcement. For example, Articles 53, 93, and 214 of Colombia's 1991 Constitution set out the status of international treaties in domestic law and clarify their relationship with constitutional rights.29 Similarly, Article 21 of Angola's 1991 Constitution integrates the language of the UDHR, the African Charter of Human Rights, ICESCR, and several labor rights conventions.30 The key benefits to ratification derive from the countries' national obligations to implement and enforce ESRs. The common heritage and universal character of the rights and the international monitoring and reporting mechanisms also work to ensure a universal coherence.31
International commitments have not been sufficient, however, where there is a conflict between international and national conceptions of "rights" as Sajó's article on Hungary demonstrates.32 The social and economic rights in the 1987 Hungarian Constitution were drawn partly from language in the UDHR and the ICESR.33 Nonetheless, the constitution was infused with Sovietstyle language on social services and dignity that had existed in prior Hungarian constitutions.34 Hungary's 1989 Constitution transformed Soviet concepts into the language of rights, but in practice, neither the costs of enforcement nor the definition of "rights" were fully understood.35 In Sajó's evaluation, this was fatal to the transformative potential of the courts, and he observes that ESRs in Hungary have largely protected middle class entitlements.36
Institutional judicial culture is a further determinant of the transformative potential of courts.37 In Gloppen's view, the critical ingrethents are the judges' perceptions of their role on social rights, their sensitization to social issues through training and curriculum development, and the gender, socio-economic, and ethnic composition of the bench.38 Financial resources for individual litigants and for the judicial system as a whole are also determinative-particularly for indigent plaintiffs. Some constitutions provide for state assisted representation. For example, Sections 35(2) (c) and 35(3) (g) of the South African Constitution require state-funded legal assistance in criminal matters "if substantial injustice would otherwise result."39 In addition to legal aid, the quantity and quality of pro-bono litigation is important, as is organizational support, legal literacy programs, and access considerations such as court filing costs, distances to the court house and language.40 Adequate judicial resources will also include appropriate budgets, infrastructure, and access to legal materials.41
A schism running throughout the case studies-which is common to new democracies in general-is the tension inherent in simultaneously promoting ESRs and a market based democracy. Because social rights and expanding market forces are two movements that converge in the state, there are moments when these work together and times when they pull apart.42 The cessation of military repression in several Latin American countries in the 1980s and 1990s, for example, brought a concurrent movement for democracy and conservative economic policies which were not always consistent.43 In Colombia, the economic liberalization policies pursued by the government conflicted with the social rights guaranteed in the Political Constitution of Colombia.44 In Hungary, this tension manifested itself when the country chose between public and private education sectors, and between a public and private pension scheme.45
The tension between economic policies and ESRs is also reflected in the deepening interdependence of our international economic system. Deregulation, liberalization, privatization, and the reduction of the role of the state have had an enormous impact on social and economic standards in many of die countries surveyed in this book. Many Latin American countries have determined it necessary to devalue dieir currencies, which has eroded purchasing power. They have also adopted fiscal policy measures which have impinged on standards of living and basic subsistence rights, and privatized industries, including water, resulting in an outsourcing of basic necessities to the private sector.46 The contributors to this volume do not assess the extent to which courts can intervene to protect ESRs where traditional government activities have been transferred to die private sector or international financial institutions.47 Nonetheless, the question of jurisdiction is a pressing one. If the practices of transnational corporations and financial institutions are undermining ESRs, then courts will necessarily be limited in their ability to encourage ESR protection.48
This book offers a thoughtful conclusion on the role of courts: "social rights have been enforced most readily in new or fragile democracies, where the judicial branch has typically not had die time to build the legitimacy required to survive political conflict, and where the resources needed to implement social rights are typically fewer."49 It is in the newest democracies, therefore, that ESRs are finding their strongest proponents. Nonetheless, it is clear that courts are only one of the actors in die fight against poverty and the promotion of ESRs generally.50 This is not to denude courts of their responsibilities with regards to the promotion of ESRs, but for courts to be effective, the judiciary and citizenry must be educated on how and why courts can intervene to prioritize issues for government action.51
The High Commissioner for Human Rights has noted the widespread weaknesses in ESR protection: "in spite of the inclusion of ESRs in international treaties, legal protection of these rights in practice is considerably weaker than in the case of other rights."52 One of the benefits of legal protection is to clarify the content of ESRs in national contexts, while increasing the accountability of those who have a duty to promulgate them.53 Weaker ESR protection is not due to a difference in the nature of rights, but in the duties involved in protecting and promoting them.54 These concerns and obstacles exist at the international level as well. A proposed optional protocol to the ICESR which would provide for the adjudication of individual and group complaints against states party to the covenant continues to be debated. Its detractors argue that it will have little effect, while its proponents state that a covenant could consolidate efforts to provide effective remedies.55 From either angle, however, it is apparent that full enforcement of ESRs will continue to require something beyond the court system for the foreseeable future.
1. Although courts might seem indivisible from economic and social rights (ESR) enforcement, diey are but one of several available strategies. As die High Commissioner for Human Rights states:
Legal protection is only one element of any strategy to promote and protect economic, social and cultural rights, albeit an essential one. Strategies to achieve higher protection of economic, social and cultural rights should be multidimensional and include a range of legal, administrative, financial, budgetary, educational and social measures. Pressure and lobbying by civil society, educational programs and research by national ministries and national human rights institutions, the use of participatory decision-making and budgeting, die identification of indicators and benchmarks all have a significant role to play in bringing about positive change in die protection and promotion of economic, social and cultural rights.
U.N. Econ. & Soc. Council [ECOSOC], Report of the United Nations Commbsioner for Human Rights, ¶ 2, UN Doc. E/2006/86 (June 21, 2006) [hereinafter Human Rights Report].
2. The book is the product of a 2004 workshop on "Courts and Social Transformation in New Democracies," held at Torcuato di Tella University in Buenos Aires.
3. See, e.g.. HUMAN RIGHTS IN TURMOIL (Stephanie Lagoutte, Hans-Ottawa Sano & Peter Scharf eds., 2007); HUMAN RIGHTS AND SOCIETIES IN TRANSITION (Shale Horowitz & Albrecht Schnabel eds., 2004).
4. COURTS AND SOCIAL TRANSFORMATION IN NEW DEMOCRACIES: AN INSTITUTIONAL VOICE FOR THE POOR? 1 (Roberto Gargarella, Pilar Domingo 8c Theunis Roux eds., 2006) [hereinafter NEW DEMOCRACIES] (stating in die introduction that die book draws on law, legal theory, political theory, and political science).
5. See, e.g., International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 999 U.N.T.S. 3, available at http://www.ohchr.org/english/law/cescr.htm [hereinafter ICESCR]. For the right to food, see id. art. 11 ("The States Parties to die present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. . . . [and] to be free from hunger ...."). For the right to health, see id. art. 12 ("The States Parties to the present Covenant recognize the right of everyone to die enjoyment of die highest attainable standard of physical and mental healdi."). For the right to education, see id. art. 13 ("The States Parties to die present Covenant recognize die right of everyone to education. . . . Primary education should be compulsory and free to all.").
6. See Victor E. Abramovich, Courses of Action in Economic, Social and Cultural Rights: Instruments and Allies, 2 SUR INT'L J. ON HUM. RTS. 181 (2005) (discussing the development of the human rights conventions and the distinctions between civil, political, economic and social rights).
7. "All human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on die same footing, and widi die same emphasis." See World Conference on Human Rights, June 14-25, 1993, Vienna Declaration and Programme of Action, § 1, ¶ 5, U.N. Doc. A/ CONF.157/23 (July 12, 1993); Universal Declaration of Human Rights, G.A. Res. 217A, at 71, U.N. GAOR, 3d. Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948).
8. See Philip Alston, Economic and Social Rights, in Human Rights: An Agenda for the Next Century 137, 139 (Louis Henkin & John Lawrence Hargrove eds., 1994); E.W. Vierdag, The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights, 9 Neth. Y.B. Int'l L. 69 (1978).
9. See Convention on die Rights of the Child, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, at 166, U.N. Doc. A/ 44/ 49 (Nov. 20, 1989); Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.AS.T.S. No. 69, reprinted in 28 I.L.M. 156 (1989); Convention on die Elimination of All Forms of Discrimination Against Women, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/RES/34/180 (1979); ICESCR, supra note 5.
10. See, e.g., Thomas Buergenthal, Modern Constitutions and Human Rights Treaties, in Politics, Values and Functions: International Law in the 21st Century: Essays in Honor of Professor Louis Henkin 197 (Jonadian I. Charney, Donald K Anton 8c Mary Ellen O'Connell eds., 1997), reprinted in 36 Colum. J. Transnat'l L. 211 (1997).
11. The inclusion of ESRs in national constitutions is noteworthy, given that the ICESCR does not require diat all rights be implemented dirough the creation of judicial causes of action. Instead, states are required to give effect to their obligations through "all appropriate means, including particularly the adoption of legislative measures." See ECOSOC, Comm. on Econ., Soc. and Cultural Rights, General Comment 3: The Nature of States Parties Obligations, § 3, U.N. Doc. E/1991/23 (Dec. 14, 1990).
12. See, e.g., Julia Hausermann, The Realisation and Implementation of Economic, Social and Cultural Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS: PROGRESS AND ACHIEVEMENT (Ralph Beddard & Dilys Hill eds., 1992); Cass R Sunstein, Against Positive Rights, in Western Rights? POST-COMMUNIST APPLICATION 225 (András Sajó ed., 1996); David Beatty, The Last Generation: When Rights Lose Their Meaning, in Human Rights and Judicial Review: A COMPARATIVE PERSPECTIVE 350 (David Beatty ed., 1994); D.M. Davis, The Case Against the Inclusion of Socio-Economie Rights in a Bill of Rights Except as Directive Principles, 8 S. Afr. J. Hum. Rts. 475 (1992).
13. NEW DEMOCRACIES, supra note 4, at 257-65. At least one of the audiors has taken on this substantive debate elsewhere. See Victor Abramovich 8c Christian Courtis, Hacia la exigibilidad de los derechos económicos, sociales y culturales, in La Aplicación de los Tratados INTERNACIONALES SOBRE DERECHOS HUMANOS POR LOS TRIBUNALES LOCALES (Martine Abregu & Christian Courtis eds., 1997).
14. NEW DEMOCRACIES, supra note 4, at 27. For an excellent discussion of the deliberative approach to ESRs, see Alana Klein, Experimentalist Approaches for Social and Economic Rights Enforcement in Canada (2007) (manuscript at 5, paper on file with author).
15. South Africa v. Grootboom 2000 (11) BCLR 1169 (CC) (S. Afr.).
16. Id. ¶¶ 37-40; see NEW DEMOCRACIES, supra note 3, at 114-15 (discussing the reasonableness standard of review).
17. Minister of Health v Treatment Action Campaign (2) 2002 (5) SA 721 (CC) (S. Afr.).
18. Id. 1 67.
20. NEW DEMOCRACIES, supra note 4, at 37-38.
21. Id. at 42.
22. Gloppen asks the following: "Why do some courts, at certain times, function as agents of social transformation and inclusion of marginalized groups? Why do poor groups in some cases turn to the legal system radier than opting for other forms of political mobilization?" Id. at 35.
23. See VIOLANE AUTHEMAN, GLOBAL LESSONS LEARNED: CONSTITUTIONAL COURTS, JUDICIAL INDEPENDENCE, AND THE RULE OF LAW 12 (2004). But see Davis, supra note 12.
24. NEW DEMOCRACIES, supra note 4, at 83.
25. Id. at 84.
26. Id at 153.
27. Id. at 112, 155.
28. See id. at 68, 169 (describing the process of integrating international instruments into Latin American constitutions); Human Rights Report, supra note 1, ¶ 18.
29. NEW DEMOCRACIES, supra note 4, at 128-29.
30. Id. at 218.
31. Thomas Buergenthal, The Evolving International Human Rights System, 100 AM. J. INT'L L. 783, 804 (2006).
32. See NEW DEMOCRACIES, supra note 4, at 86-87 (discussing the incomplete institutionalization of rights which arose from Hungary's legal culture); see also András Sajó, Rights in Post-Communism, in Western Rights?, supra note 12, at 139, 146.
33. NEW DEMOCRACIES, supra note 4, at 87 (noting that provisions on gender, shelter and food were omitted somewhat arbitrarily).
34. Id. at 86-87.
35. Cass Sunstein, Against Positive Rights, in Western Rights?, supra note 12, at 225, 228.
36. NEW DEMOCRACIES, supra note 4, at 85-86.
37. Id. at 49-50.
39. S. AFR. CONST. 1996 § 35(2) (c), (3) (g), available at http://www.info.gov.za/documents/constitution/1996/96cons2.htm.
40. NEW DEMOCRACIES, supra note 4, at 48.
41. See id. at 226 (noting diat rights in Angola go unenforced "due to a lack of resources among the poor as well as a lack of human and technical resources within die justice system itself," and not because of constitutional limitations) .
42. Hada Thelle, Freedom from Want: Globalization and Social Security, in HUMAN RIGHTS IN TURMOIL, supra note 3, at 201.
43. See generally Yves DEZALAY, The Internationalization of Palace WARS: LAWYERS, ECONOMISTS, AND THE CONTEST TO TRANSFORM LATIN AMERICAN STATES (2001) (describing die new economic policies adopted by Latin American states).
44. Id at 68, 130. See generally POLITICAL CONST, OF COLOM. (promulgated in 1991), available at http://pdba.georgetown.edu/Constitutions/Colombia/col91 .html.
45. Dezalay, supra note 43, at 86.
46. Romina Picolotti, The Right to Safe Drinking Water as a Human Right, 2 HOUSING & ESC Rts. L.Q. No. 1, at 1 (Apr. 2005).
47. Manisuli Ssenyojo, Non-State Actors and Economic and Social Rights, in ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN ACTION 109 (Mashood Baderin 8c Robert McCorquodale eds., 2007).
48. International financial institutions, however, have recognized die relevance of ESRs to dieir mandates, suggesting a shift towards die recognition of human rights obligations of non-state actors. See François Gianviti, Economic, Social and Cultural Rights and the International Monetary Fund, in NON-STATE ACTORS AND HUMAN RIGHTS (Philip Alston ed., 2005), available at http://www.imf.org/external/np/leg/sem/2002/cdmfl/eng/ gianv3.pdf; see also MAC DARROW, BETWEEN LIGHT AND SHADOW: THE WORLD BANK, THE INTERNATIONAL MONETARY FUND AND INTERNATIONAL HUMAN RIGHTS LAW (2003).
49. See NEW DEMOCRACIES, supra note 4, at 25, 134-35 (describing how the judiciary, after years of inaction by die state, decided to seriously address conditions of over-crowding in prisons) . Despite challenges diat die courts were acting illegitimately, die Court was the first and only public authority to vigorously protect and defend prisoners, resulting in significant government expenditures towards building new prisoners and hiring new personnel.
50. For example, Cavallaro and Schaffer argue that "less is more":
[T] here is a limited and often subsidiary role of legal advocacy in promoting the recognition of economic and social rights and distributive justice . . . [and that] successful promotion of economic, social and cultural rights . . . should be incremental, firmly grounded in established precedent, and always linked to vigorous social movements and effective advocacy strategies.
James L. Cavallaro & Emily J. Schaffer, Less as More: Rethinking Supranational Litigation of Economic and Social Rights in the Americas, 56 HASTINGS LJ. 217 (2004). But see Tara J. Melish, Rethinking the "Less is More" Thesis, 39 N.Y.U. J. Int'l L. & Pol. 171 (2006).
51. NEW DEMOCRACIES, supra note 4, at 256.
52. Human Rights Report, supra note 1,13.
53. Id. ¶ 5.
54. Ruth Gavison, On the Relationships Between Civil and Political Rights, and Social and Economic Rights, in THE GLOBALIZATION OF HUMAN RIGHTS 23, 47 (Jean-Marc Coicaud, Michael W. Doyle & Anne-Marie Gardner eds., 2003).
55. See ECOSOC, Comm. on Hum. Rts., Elements for an optional protocol to the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/ CN. 4/ 2006/ WG. 23/ 2 (Nov. 30, 2005). For a skeptical view, see Michael Dennis & David Stewart, Justiciability of Economic, Social, and Cultural Rights: Should There Be an International Complaints Mechanism to Adjudicate the Rights to Food, Water, Housing and Health?, 98 Am. J. Int'l L. 462 (2004).
* Associate Professor of Law, Seton Hall Law School. L.L.M. 2005, Columbia University Law School; J.D. 2000, New York University School of Law. Thanks to Roderick Devlin, Alana Klein, and Simon Walker for dieir helpful comments, and to Rahel Bayar and Taryn Chartier for their research assistance.…