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. …