Malcolm Langford

Norwegian Centre for Human Rights, University of Oslo

HUMR 5132

Questions

Should we consider ESC rights as human

rights?

Are they legal rights?

Should courts adjudicate these rights?

Citizen Rights or Human Rights?

Historically, social rights were conceived as citizen rights; which

found academic traction in Marshall (1950).

The “economic value of the individual claimant” should not

determine their social citizenship.

Citizenship rights approaches use different justifications: (i) patriotic

building of national identity; (ii) family-like reciprocity;

(iii) compensatory justice for the undervalued productive

contributions of the poor; (iv) utilitarian or self-interest arguments;

(v) respect; (vi) luck egalitarianism; and (vii) coercion and state

legitimacy.

What might be the advantages and disadvantages of citizen rights

approaches?

I. Philosophical &

Practical Debates

Valuative Objections

“A human right, by definition, is something that no one, anywhere, may be deprived of without a grave affront to justice. There are certain actions that are never permissible, certain freedoms that should never be invaded, certain things that are sacred… Thus, the effect of a universal declaration that is overloaded with affirmations of economic and social rights is to push the political and civil rights out of the realm of the morally compelling into the twilight world of utopian aspirations. “

M. Cranston, 'Are There Any Human Rights?', Daedalus, Vol. 112(4) (1983), pp. 1, p. 12.

Conceptual objections

David Kelley (1998), A Life of One's Own: Individual Rights and the Welfare State (Washington, D.C.: Cato Institute):

1. Different nature: “The classical rights are to freedom of action, whereas welfare rights are rights to goods”

2. Negative/Positive: “Liberty rights set conditions on the way in which individuals interact ... Welfare rights, by

contrast, are intended to guarantee success, at a least at a minimum level ... as entitlements to certain goods”

3. Different duty bearer: “One person’s liberty rights impose on every human being the obligation to respect

them” But in the case of social rights, “No advocate of welfare rights would say that a poor person has a right to appear at my door and demand food, or a place to sleep”.

4. Complex Implementation: “To implement the liberty rights ... [the] laws involved are relatively simple, they essentially prohibit specific types of action ... The implementation of welfare rights requires a much more activist type of government ... and is enormously complex.”

5. Resources: “The economic and technological development of a society affects the degree to which it can provide welfare rights to its members.”

6. Unclear standards: “If individuals have rights to at least minimum levels of such goods, then the political process must decide what constitutes the minimum ... There is no universal and nonarbitrary standard for distinguishing need from luxury”.

Practical objections Aryeh Neier (2006), 'Social and Economic Rights: A Critique', Human

Rights Brief, 13(2), 1-3.:

1. Discrimination can rather address clear distributive differentiation of resources: “For example, if a town provides roads and sewage collection ... To people of one race or town”

2. Allocation of societal resources must be done through a democratic process: “A court is not the place where it is possible to engage in [the necessary] sort of negotiations and compromise”

3. Devalues civil and political rights: ”you can only address economic and social distribution through compromise, but compromise should not enter into the adjudication of civil and political rights. I do not want a society to say that it cannot afford to give individuals the right to speak or publish freely, or the right not to be tortured” . He gives examples of China and Zimbabwe.

Political Objections

“Citizenship, from an emancipatory perspective, is not about subjects bearing rights conferred by the state, as in human rights discourse, but rather about people who think

becoming agents through engagement as militants/activists and not politicians.”

Neocosmos, Michael (2009), 'Civil Society, Citizenship and the Politics of the (Im)possible: Rethinking Militancy in Africa Today ', Interface: A Journal for and About Social Movements, 1(2), 263-334 at 276.

Valuative Responses

Ahistoricised Historicised

Pre-Determined Essentialist Behavioural

Functional

Deliberative

Post-Determined Protest

Cultural

A Map of Human Rights Theories

Essentialist: Freedom is conditional or substantive (e.g. positive freedom, capabilities)

Essentialist II: Other grounds for human rights: domination, need, dignity, agency, categorical imperative.

Behavioural: common core, overlapping consensus, actual consensus

Functionalist: e.g., human rights thinking (agency – Griffin) or post-1945 practice (urgency in modernity - Beitz)

Deliberative: procedural (e.g., General Assembly), ratification or customary law.

“The law, in its majestic

equality, forbids rich and

poor alike to sleep under

bridges, to beg in the

streets, and to steal their

bread.” (Anatole France)

Legal commitment as empirical

evidence

Trends in Constitutional

Rights: 1970-2005

0

20

40

60

80

100

120

140

160

180

Protection from Torture

Freedom of expression

Right of petition

Social Security

Healthcare

Education

Evidence of deliberative

Rise in legal recognition of economic, social and cultural rights: e.g. Number of international reaties with ESC rights and the level of ratification.

Fig. 1 Rate of Adoption of Treaties and Complaint Procedures

0

2

4

6

8

10

12

14

16

18

1966-70 1971-75 1976-80 1981-85 1986-90 1991-95 1996-2000 2001-05 2006-09

ICCPR

ICESCR

ICERD

ICCPR-OP

N.A. CEDAW CAT CAT-

OP

CRC ICMW

ICMW(OP)

N.A. CEDAW-OP N.A. ICPRD

ICPPED

ICESCR-OP

ICPRD-OP

Date and New Instrument

Nu

mb

er

OP

Treaty

Treaty Ratifications (As at Nov 2011)

ICCPR: 166

ICESCR: 160

ICERD: 173

CEDAW: 186

CAT: 147

CRC: 193

CRPD: 190

Migrant Workers: 43

Disappearances: 19 (not in force)

PLUS up to 200 ILO, WHO, FAO and UNESCO Conventions and Standards!

HR Treaty Ratifications:

By Region

7 8

4

8 10 10 9 10 8 8

1 1

1

2

4 5 5 5

2 2

ICESCR Ratification

0,0 %

20,0 %

40,0 %

60,0 %

80,0 %

100,0 %

120,0 %

Africa Asia Middle

East

Pacific Central

America

North

America

Western

Europe

Latin

America

Nordic Central

and

Eastern

Europe

Regional Standards

Europe: European Social Charter plus

Protocol 1 of ECHR

Inter-American Convention, Declaration

and San Salvador Protocol

African Charter on Human and Peoples’

Rights

Cairo Declaration on Human Rights

ASEAN Charter?

Conceptual Responses

Everyone’s duty and thus the State’s: “[W]hile it is no doubt true that the outcomes of markets are unintended they can ... be foreseen.... The strict duty for individuals in the case of economic and social rights would not be that of personal provision ... But rather a duty to support the tax system ...” Plant (2003) (SAG, 288-299)

Civil and political rights involve positive obligations and ESC rights negative: “The reason the executive branch of the Guatemalan State has so little money to spend on the criminal justice system is that the legislative branch, the Congress, imposes exceptionally low taxes”

Can deduce standards that deal with trade-offs and resources: E.g. “The notion of a social right

can quite intelligibly be understood ... as an

unconditional right of reasonable access to a

given resource, rather than a right to be given

this resource unconditionally.” (White (2000)

(SAG, 289-291)

ESC rights not excessively more complex: e.g. Electoral systems, criminal justice systems,

protection of personal security, protection of

privacy, protection of freedom of speech etc.

Question of Resources? Always question of resources? Weiner (1994): Eliminating child

labour in India not a question of resources but lack of political will to establish free and compulsory education up to age 14.

Problem of allocation not of resource levels? UNDP (1990) ”The view that human development can be promoted only at the expense of economic growth poses a false trade-off”.

Human rights and economics largely compatible but just face challenges on (1) estbalishing a ”metric for making trade-offs” and (2) dealing with ”behavioural distortions associated with subsidies”? Gauri (2005).

Economists and human rights advocates developing different quantitative and qualitative methods to determine whether maximum available resources used. Courts also have particular methods – see next section.

Note there are different types of resources.

MDG Realisation for Water and Sanitation: Maximalist and Average Methods for GDP per capita

National Level – South Africa

Europe: High housing costs versus GDP

Norge

Politics and Practice?

Gradually, yes.

UN Special Rapporteur on Right to Adequate Housing

Raquel Rolnik 2009

“Millions of people in the U.S. are spending high percentages of their income to make their monthly rent and mortgage payment, face foreclosure or eviction, and live in overcrowded and substandard conditions. The number of homeless continues to rise with increasing numbers of working families and individuals finding themselves on the streets.”

Washington Times editorial "Miss Rolnik's bureaucratic pity might be better targeted at her native Brazil, where 28.9 percent of the urban population lives in slums, according to the UN-HABITAT Global Urban Indicators database. Or China, where the rate is 32.8 percent. Or Kenya at 54.8 percent, Mozambique at 79.5 percent, or Sierra Leone, where 97 percent of people in cities are slum dwellers.”

Fact-finding and SE rights

Advocacy and SE rights

Rights-based policy making

Legal Mobilisation

Media & Education

The United Nations Special Rapporteur on the

Right to Food on BBC Hardtalk on latest talk

http://www.youtube.com/watch?v=zlIQnA99b6

M

II. Legal Challenges

Legal Obligations

1. Historically, it could be argued that the rights were not explicitly recognised (whether in treaties or constitutions) but difficult to claim that now.

2. Rights either too vague or phrased in aspirational or programmatic terms (e.g. Article 2.1 ICESCR) ”

“The majority of the rights in the Covenant did not carry immediate legal effect and, considering the vague nature of the rights and the principle of progressive realisation, Denmark believed that the majority of rights were insufficiently judiciable and less suited to form the basis of an individual complaints mechanism.” UNGA 2008

3 Not justiciable and therefore not legal: Vierdag

a(1978) ” “implementation of these provisions [in

the ICESCR] is a political matter, not a matter of

law’ since a Court must engage in prioritisation of

resources by “putting a person either in or out of

a job, a house or school.”

Therefore, difficult to develop clear legal

standards.

Article 2.1 ICESCR 1966: Each State Party to the present

Covenant undertakes to take steps, individually and

through international assistance and co-operation,

especially economic and technical, to the maximum of its

available resources, with a view to achieving progressively

the full realization of the rights recognized in the present

Covenant by all appropriate means, including particularly

the adoption of legislative measures.

Article 2.2 ICESCR The States Parties to the present Covenant undertake to guarantee that the rights … will be

exercised without discrimination of any kind ...

Article 2.1 ICCPR 1966: Each State Party to the present

Covenant undertakes to respect and to ensure to all

individuals within its territory and subject to its jurisdiction

the rights recognized in the present Covenant, without

distinction of any kind ….

Vague & Aspirational?

CESCR Committee’s Interpretation: General Comment No.

3 (1990)

2. … while the full realization of the relevant rights may be

achieved progressively, steps towards that goal must be

taken within a reasonably short time after the Covenant's

entry into force for the States concerned. Such steps

should be deliberate, concrete and targeted as clearly as

possible towards meeting the obligations recognized in the Covenant.

Basic positive obligation

Economic model

8. The Committee notes that the undertaking "to take steps ... by all appropriate means including particularly the adoption of legislative measures" neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected. Thus, in terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.

9. ... The concept of progressive realization constitutes a recognition of the fact that full realization of all [ESC] rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the ICCPR .... Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.... It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.

Progressive realisation

“10. ... the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned... In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.

Minimum core obligation

General Comment No. 12 on the Right to Food (1999):

15. The right to adequate food, like any other human right, imposes three types or levels of obligations on States parties: the obligations to respect, to protect and to fulfil. In turn, the obligation to fulfil

incorporates both an obligation to facilitate and an obligation to provide. The obligation to respect existing access to adequate food requires States parties not to take any measures that result in preventing such access. The obligation to protect requires measures by the State to ensure that enterprises or individuals do not deprive

individuals of their access to adequate food. The obligation to fulfil (facilitate) means the State must pro-actively engage in activities intended to strengthen people’s access to and utilization of resources and means to ensure their livelihood, including food security. Finally, whenever an individual or group is unable, for

reasons beyond their control, to enjoy the right to adequate food by the means at their disposal, States have the obligation to fulfil (provide) that right directly. This obligation also applies for persons who are victims of natural or other disasters.

Respect, protect and fulfil

Development of content of rights by CESCR:

E.g. General Comment on Right to Water (2002) Normative content: Defines adequacy as Availability, Quality and Accessibility (physical, economic, non-discrimination and information). In some general comments, the list is longer or differently conceived: see General Comment No. 4 on Right to Adequate Housing (1991)

Enunciated obligations increasingly more detailed over last two decades. Some provide detailed standards on negative obligations (e.g., GCs 7, 15 and 19) and some on equality (5, 6, 16, 20)

But note some of the critique of over-categorisation: Koch (2005); Langford and King (2008)

The extent to which national laws embody this content obviously varies significantly in practice.

Laws from social welfare states are often strongest in protections and often go much further in depth of protection. But they do not always take a full «socio-ecomic rights» approach in terms of breadth: e.g., in covering all groups or issues.

Justiciable rights? 3. Justiciable rights?

(See next Part of lecture)

UNGA Optional Protocol (2008)

Article 2 Communications

Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. Where a communication is submitted on behalf of individuals or groups of individuals, this shall be with their consent unless the author can justify acting on their behalf without such consent.

General Comment No. 9 CESCR (1998)

“10.In relation to civil and political rights, it is generally taken

for granted that judicial remedies for violations are essential.

Regrettably, the contrary assumption is too often made in

relation to economic, social and cultural rights. This

discrepancy is not warranted either by the nature of the rights

or by the relevant Covenant provisions. … While the general

approach of each legal system needs to be taken into

account, there is no Covenant right which could not, in the

great majority of systems, be considered to possess at least

some significant justiciable dimensions. It is sometimes

suggested that matters involving the allocation of resources

should be left to the political authorities rather than the courts.

While the respective competences of the various branches of

government must be respected, it is appropriate to

acknowledge that courts are generally already involved in a

considerable range of matters which have important resource

implications….”

III. Justiciability of ESC Rights

Noting Key Doubts Positive obligations? How do adjudicators prescribe positve

action when there are many different options to achieve a right?

Vagueness? Can the concepts be given substantive detail?

Democracy and Subsidiarity? Courts and internatioal bodies will intrude on core areas of legislative/executive competence.

Institutional Competence? Adjduciators lack the skills to deal with soicla policy issues and deal with polycentric consequences.

Effective? Social rights litigation unlikely to be pro-poor since (i) adjudicators are conservative: (2) adjudicators constrained by leegitimacy concerns above; (3) adjduciatrs can’t enforce decisions easily; (4) process may be captured by middle and upper class litigants; and (5) distracts attention from effective political advocacy.

A social rights litigation

explosion?

500000 Cases?

• 1970 • 1990 2010

But tutelas dominate

Phenomenal growth in legal action invoking ESC rights: this section draw on Langford (2008)

Up to 200,000+ (1/2 million?) cases world-wide but structure

of litigation varies

But jurisprudence concentrated in some regions/ countries

but slow diffusion in a middle group.

Shift from countries with ‘implied rights’ jurisprudence to

‘express rights’ jurisprudence

Optional protocols to ICESCR and CEDAW/ CRC/ CPRD may

spur greater domestic litigation

Justiciability

of ESC rights

Clear political failure to

address problem

Accessibility

independence

& openness of

courts

Civil society support structures

Multiple causes

All ESC rights litigated somewhere, someplace.

All dimensions of duties covered somewhere: eg, respect, protect, horizontal, fulfil, equality and non-discrimination although extra-territorial obligations at infancy

Innovative access procedures and remedies

Some issues:

(a) Marked variance on doctrines and outcomes (e.g. compare child protection cases in SAG 354-357 and fulfil cases between Colombia and South Africa)

(b) Remedies of different strength

(c) Litigation on public sector duties often more successful than duty to regulate private sector or establish direct obligations of private sector: but see Germany, Colombia and Canada.

Diverse jurisprudence

Access Procedures

Types of applicants

Individual (precedential or not precedential)

Collective – representative or actio popularis

Review of legislation - Anterior or posterior

Court initiated – advisory, inquiry or judge-driven

Prosecutor in criminal law

Increasing innovation in form: from postcards to

tutelas to improved access to legal representation

Doctrinal Categories & Principles

Categories

Respecting and protecting rights

Immediate obligations to fulfil (e.g., minimum/adequate core)

Progressive achievement (e.g. reasonableness)

Equality rights (form, indirect, substantive)

Or Principles

Arbitrariness

Proportionality

Due diligence to protect

Contextualising dignity and adequacy

Reasonable efforts and reasonable resource burdens

Reasonable and objective criteria for discrimination

Modes of Judicial Review

Deference

Dialogical

Deliberation - Sensitive

Experimental

Mediative

Managerial

Peremptory

Remedial Typologies Compensation and Restitution

Injunctions

Declaration of invalidity

Delayed declaration of invalidity

Recommendations

Supervisory jurisdiction

Revision of laws

Are stronger remedies correlated with enforcement and impact? Not clear.

Obligation to respect Supreme Court of Bangladesh: “the forcible taking away of sex workers and putting them

into the …vagrant home… have been done without any lawful authority in derogation of their right to life or livelihood and contrary to the dignity or worth of the human person” Bangladesh Society for the Enforcement of Human Rights

In Aquino (2004), the Argentinean Supreme Court struck down a 1995 law which severely circumscribed worker’s compensation on the basis that it would violate a wide range of international standards, including the International Covenant on Economic, Social and Cultural Rights

See SA Court in Thubelisha Homes (2009) on standards for alternative accommodation

But highly varied outcomes, e,g. in India:

Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545 (forced evictions but weak remedy)

Narmada Bachao Andolan v. Union of India (2000) 10 SCC 664 at 696 (implementation of resettlement rights with dam construction dismissed: “‘when a decision is taken by the government after due consideration and full application of mind, the court is not to sit in appeal over such decision.’”)

Obligation to Protect

In SERAC v Nigeria, the African Commission found that Nigeria had failed to ensure that the Shell oil company in the Delta region refrained from polluting natural resources, such as water, air and land that were used to realise various social rights

In Maya Indigenous Communities of the Toledo District (2005), the Inter-American Commission found Belize had violated the rights of Maya people by granting logging and mining concessions without their consent and any consultation process (under their rights to equality and property).

In the Philippines case of Tatad v Secretary of the Department of Energy (1997),the Supreme Court struck down a deregulation law that would have permitted the three major oil companies to avoid seeking permission of the regulator to increase prices.

Horizontal obligations

In Colombia, the Constitutional Court found that the right to work was violated by an employer who dismissed an employee after being tested HIV-positive. The private institution was ordered to pay the applicant compensation for the damage caused (and the wider State obligations to protect persons with HIV was reaffirmed).

In the Slaight Communications case in Canada, the Supreme Court held that the decision of a private labour arbitrator must be in conformity with the Charter which is to be interpreted as far as possible with the right to work in the ICESCR.

Obligation to Fulfil South Africa Examples

Soobramoney v Minister of Health, KwaZulu-Natal 1997 (12) BCLR 1696 (SAG, 329-333)

“The measures must establish a coherent public housing program directed towards the progressive realisation of the right of access to adequate

housing within the State‘s available means. The program must be capable of facilitating the realisation of the right. The precise contours and content of the measures to be adopted are primarily a matter for the Legislature and the Executive. They must, however, ensure that the measures they

adopt are reasonable. Government of the Republic of South Africa v

Grootboom and Others 2000 (11) BCLR 1169 (CC)

Minister of Health and Others v Treatment Action Campaign and Others (1) 2002 (10) BCLR 1033 (CC) (339-345).

Mazibuko and Others (2009): “Unsurprisingly, given the scale and complexity

of the challenge, the [free water] policy was not perfect. But that is not the constitutional standard.” Case on increase free basic amount and having pre-paid meters in Soweto ruled unconstitutional failed.

Colombia Example

The State ‘must devise and adopt a plan of action for the implementation of the rights’ (T-595/02, T-025/04.)

Tutela procedure for mínimo vital: e.g. Salary: if payment of salaries interrupted indefinitely, presumption that the worker’s right to minimum conditions for a dignified life have been violated.

E.g. minimum test for Social security: (a) the individual is in a situation of manifest vulnerability (debilidad manifiesta) (b) there is no possibility for the individual or family to remedy the situation; (c) the State has the possibility to remedy/mitigate situation; and (d) the State’s omission will affect the individual’s ability to enjoy minimum conditions of a dignified life (T-308/99, T-387/99 and T-346/04).

State of unconstitutional affairs doctrine – e.g. IDPs and right to health)

India

Municipal Council Ratlam v Vardhichand and ors, AIR 1980 SC 1622. (right to sanitation - ordered a municipality to fulfil its statutory duties to provide water, sanitation and drainage systems)

People’s Union for Civil Liberties v. Union of India (2004) 8 SCALE 759 (right to food in starvation areas with extensive orders)

European Committee on Social Rights: More than 50 collective complaints on diverse issues.

Autism-Europe v. France No. 13/2002

The Committee recalls, as stated in its decision relative to Complaint No.1/1998 International Commission of Jurist v. Portugal, § 32), that the implementation of the Charter requires the State Parties to take not merely legal action but also practical action to give full effect to the rights recognised in the Charter. When the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allows it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources… (para. 53-54)

In the light of the afore-mentioned, the Committee notes that in the case of autistic children and adults, notwithstanding a national debate going back more than twenty years about the number of persons concerned and the relevant strategies required, and even after the enactment of the Disabled Persons Policy Act of 30 June 1975, France has failed to achieve sufficient progress in advancing the provision of education for persons with autism. It specifically notes that most of the French official documents, in particular those submitted during the procedure, still use a more restrictive definition of autism than that adopted by the World Heath Organisation and that there are still insufficient official statistics with which to rationally measure progress through time. (para. 54)

Non- Retrogression

The removal of legislative protections that require the Government to respect social rights: e.g. In Dunmore v Ontario, agricultural workers in Canada successfully challenged the repeal of legislation which contained certain guarantees for their freedom of association.

The removal of a government programme that enables individuals or groups to realise their social rights. In Portugal, government decisions to remove the National Health Service and increase the qualifying age of a minimum income benefit were found to be retrogressive steps violating the right to health and social security respectively.

In Latvia, in Case No. 2009-43-01, the Constitutional Court found that pension cuts, agreed on under a loan bail-out from the IMF and European Union, violated the individual's right to social security and the principle of the rule of law. The Law on State Pension and State Allowance Disbursement from 2009 to 2012 would have temporarily cut benefits to current pensioners by 10 per cent and future pensioners by 70 per cent.

In making its judgment, the Court said that agreements signed with international lenders "in and of themselves cannot serve as an argument about the limiting of basic rights” and added that lawmakers who quickly approved the package had not evaluated carefully the alternatives.

The Court found that parliament must have measures in place to rescind the cuts by March 2010 and pay back the decrease - estimated to be in the region of €250 million – to pensioners no later than 2015. The Government responded that cutbacks would now have to come from other sectors.

In 1973, the New Jersey Supreme Court in the United States declared, in Robinson v. Cahill, 303 A.2d 273, that New Jersey's school funding statute was unconstitutional because it violated the "thorough and efficient education" requirement of the state constitution. Since that decision, the supreme court has issued over a 20 further decisions on the topic.

On 24 May 2011, the New Jersey Supreme Court found that cuts to a school budget sharply violated a previous court order requiring a proper education in poor districts. Abbott v. Burke (M-1293-09).

The majority stated that the government cannot misuse its budgetary power “to diminish” the right of students in poor areas to their constitutional right to a “thorough and efficient education”. The Court had earlier relaxed its orders for these students when new legislation was introduced but found that this law could not be later used a shield to avoid constitutional responsibilities.

It ordered another $500 million in school spending.

Equality rights

Constitutionalisation of right to equal treatment has a longer but uneven history

Traditionally phrased in negative and formalistic terms but applied (eg Brown)

Increasingly open, leading to some substantive equality interpretations (eg Eldridge)

Or positive phrased as requiring substantive equality (eg SA Constitution, Khosa)

Non-retrogression: In Ms. L. R. et al v. Slovakia, where the UN Committee on the Elimination of Racial Discrimination found racial discriminatory a resolution of a council annulling an earlier resolution providing for low-cost housing for Roma.

Prohibited grounds of discrimination multiplying (race and sex to include caste, disability, poverty )

Rare to find specific reservations or quotas for particular groups in bills of rights but is found in other parts of constitutions ot legislation

Conflicts between Rights

Courts in France and Bangladesh found in conflict between freedom of expression and bans on tobacco advertising but Canada initially did: Cf. RJR-Macdonald Inc. v. Canada, [1994]

In Narmada Bachao Andolan v. Union of India (2000), the Court acknowledged that ‘conflicting rights had to be considered. If for one set of people namely those of Gujarat, there was only one solution, namely, construction of a dam, the same would have an adverse effect on another set of people whose houses and agricultural land would be submerged in water.’ However, majority of the Court deferred to the governments right to make policy.

How to balance? Principles of proportionality (in terms of harm caused and objectives of different policies), the weight of particular legal rights helps, the historical nature of the claims, the presence of discrimination of violation of a minimum core obligation and availability of alternatives. Can also devise creative remedies.

In N.D. Jayal v Union of India, the dissenting justice also argues that “When such social conflicts arise between the poor and more needy on one side and rich or affluent or less needy on the other, prior attention has to be paid to the former group which is both financially and politically weak.”

Other National Jurisdictions

of Interest Costa Rica (tutela procedure and equality rights)

Argentina (labour, health, and water rights cases)

Germany (Existenzminimum doctrine including finding Hartz IV social security reform unconstitutional in 2010)

USA (education cases) and Canada (equality cases)

Portugal, Hungary (non-retrogression)

Finland (immediate access to social services)

Nepal (replication of Indian experience including new maternal health cases)

Egypt (right to minimum wage, affordable patented medicines)

Other International

Jurisdictions

ILO (freedom of association jurisprudence)

Inter-American Commission and Court (expansion of right to life and property)

African Commission (SERAC, Purohit cases)

Human Rights Committee (equality and cultural rights)

CEDAW (positive rights in domestic violence)

Enforcement? Why aren’t some judgments enforced?

Research is indicating that the ’political’ variables

are moreimportant than the ’legal variables

Strong remedies and follow-up can help (but not

in every situation) and the sociological legitimacy

of the Court can be a factor in weakening or

strengthening compliance.

Deliberated compliance can sometimes help

(e.g. ECtHR’s monitoring system and SACC’s

encouragement of meaningful engagement)

Impact? Empirical evidence suggests that some

judgments have had a strong impact on poverty and discrimination: Gauri and Brinks (2008) 5 jurisdictional study was found that ‘legalizing demand for SE [socioeconomic] rights might well have averted thousands of deaths’ and ‘enriched the lives of millions of others”

But some judgments not enforced and some failed to have a wider catalytic effect

Unclear whether litigation has distracted ’political’ advocacy - depends on case

Conflicting evidence on domination by middle class

Many lessons being learned on litigation strategy to maximise success and impact

Types of Impact

Impacts of

Grootboom