Academic literature on the topic 'Socio-economic rights justiciability'

AbstractThe judicial enforcement of socio-economic rights remains a challenge in many countries. This is generally attributable to the inadequacy of a particular country's legal framework, in particular its constitutional framework. Given the importance of judicial remedies in litigation, in particular public interest litigation, this article considers possibilities for the judicial enforcement of socio-economic rights in Botswana. It discusses the institutional, legal and constitutional framework for the promotion, protection and fulfilment of socio-economic rights in the country. It also tackles the issue of whether the judicial enforcement of socio-economic rights is easily achievable when those rights are not constitutionally entrenched. The article also considers whether the absence of directive principles of state policy within Botswana's Constitution is a hindrance to the judicial enforcement of socio-economic rights in Botswana. Within that context, it highlights the possible means of judicial enforcement of socio-economic rights in Botswana.

Constitutionalising socio- economic and cultural rights (SERs) and the directive principles of state policy is an indication that a state is disposed to protect and enforce such rights. The classification of rights into political and economic goes a long way in determining the extent of rights enforcement in a nation. In Nigeria political rights are enforceable while economic rights remain unenforceable, but stand a better chance of enforcing political and economic rights under rights unification as in South Africa. Nonetheless, a state's obligation to protect SERs ultimately rests on the resources available to such a state.

This article describes and analyses instrumentalities ingrained within the notion of the indivisibility of human rights. It navigates through different international and regional human rights instruments and declarations that accentuate the magnitude of all human rights without disparity. Thus, the article will attempt to address the following critical questions: Why are the global communities concerned about the indivisibility, interdependence and interrelatedness of human rights? Why these notions are largely ignored at the national level? How can we provide a heightened level of protection to social and economic rights primarily at the domestic level? How great of an impact will the notion of the unity of human rights has on the justiciability of socio-economic rights? Finally, the article analyses the nexus between indivisibility, interrelatedness and interdependence of human rights and justiciability by exploring the jurisprudence of the African Commission on Human and Peoples’ Rights.

In a typically thought-provoking essay on the significance of the recent judgment of the South African Constitutional Court in Grootboom,1 Cass R. Sunstein welcomes the contribution of this “extraordinary decision” to the international debate over the justiciability of socio-economic rights.2 In particular, he argues that the decision provides a partial answer to the objection that the judicial enforcement of such rights inevitably requires courts to assume “an unacceptable managerial role.”3 On Professor Sunstein’s reading, the Court in Grootboom successfully steers a middle course between the Scylla of complete enforceability and the Charybdis of non- justiciability. It does so by adopting what is in effect an “administrative law model of socio-economic rights,” one which reads such rights as giving courts the power to order government to “devote more resources than it otherwise would” to the regulatory problem at issue.

This article argues for the strengthening and entrenchment of socio-economic rights provisions in Ghana's jurisprudence. The purpose of this entrenchment is to engender judicial activism in promoting more creative pathways for enforcing socio-economic rights in Ghana. The article traces the development of socio-economic rights in Ghana's jurisprudence, especially the influence of the requirements of the international rights movement, particularly of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The article delves into the constitutional history of Ghana and its impact on the evolution of rights in the country. Of particular historical emphasis is the emergence of socio-economic rights under the Directive Principles of State Policy in the 1979 Constitution. However, the significance of the socio-economic rights only became profound with the return to democratic rule under the 1992 Constitution, again under a distinct chapter on Directive Principles of State Policy. However, unlike its counterpart, the chapter on the Fundamental Human Rights and Freedoms, which is directly enforceable, the Directive Principles of State Policy were not. It took the Supreme Court of Ghana a series of landmark decisions until finally, in 2008, it arrived at a presumption of justiciability in respect of all of the provisions in the 1992 Constitution. It is evident that prior to this, the Supreme Court was not willing to apply the same standards of adjudication and enforcement as it ordinarily applies in respect of rights under the chapter on Fundamental Human Rights and Freedoms. Having surmounted the non-justiciability hurdle, what is left is for the courts to begin to vigorously pursue an agenda that puts socio-economic rights at the centre of Ghana's rights adjudication framework. The article draws on comparative experiences from India and South Africa to showcase the extent of judicial creativity in rights adjudication. In India, the courts have been able to work around provisions restricting the enforcement of Directive Principles by often connecting them to Fundamental Freedoms. In South Africa, there is no hierarchy between civil and political rights on the one hand and socio-economic rights on the other; for that reason, the courts give equal ventilation to both sets of rights. The article further analyses these examples in the light of ongoing constitutional reforms in Ghana. It argues that these reforms fall short of the activism required to propel socio-economic rights adjudication to the forefront in Ghana's jurisprudence. In this regard, the article proposes social movements as a viable tool for socio-economic rights advocacy by recounting its success in previous controversial issues in Ghana. The article also connects this to other important building blocks like building socio-economic rights into a national development blueprint. Overall, the article calls for an imaginative socio-economic rights enforcement approach that is predicated on legislation, judicial activism, social movements and a national development blueprint aimed at delivering a qualitative life for the Ghanaian.

Abstract Article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to health. Two questions are considered in this article. Does this right entail a more specific right to life-saving emergency treatment? And if so, should the latter right become justiciable in the domestic courts? Two propositions will be made in this article. First, the right to life-saving emergency treatment is a necessary component of the right to health. Second, the conventional arguments against the justiciability of socio-economic rights do not apply to the right to life-saving emergency treatment. Such a right should be justiciable at the domestic level.

The 1999 Constitution of the Federal Republic of Nigeria, as amended (CFRN) recognizes the entitlement of every Nigerian within its borders to enjoy economic and socio-cultural (ESC) rights under Fundamental Objectives and Directive Principles of State Policy. However, the constitution seemingly renders these ESC rights non-justiciable or unenforceable. This paper examines the efforts of the Nigerian judiciary to bypass the non-Justiciability provision to enforce ESC rights in Nigeria. It mainly investigates the role of judicial decisions in other similar jurisdictions such as South Africa and India in shaping the jurisprudence of the enforcement of ESC rights in Nigeria. Therefore, the paper adopts the comparative method and recommends that both the Nigerian legislature and the judiciary should follow the example of enforcement of ESC rights in these other jurisdictions.

Human rights became a global issue after the atrocity and barbaric genocide unleashed on over six million Jews, Sinti, and Romani (Gypsies), homosexuals, persons with disabilities and the 'Negro' (blacks) during the second world war by Nazis regime of Germany. Initially, individuals' rights were not the subject of international law, because the norm of the international law is to regulate relationship amongst member states as sovereign nations; thus, United Nations [(UN) founded in 1945] were reluctant to interfere in state parties' affairs. The unfortunate wanton abuse and violation of human rights at the domestic level by governments of the state parties were not addressed, as such issues are the remit of nationals; until it culminated to genocide, crimes against humanity, crimes against peace and war crimes which received an international attention at Nuremberg and Tokyo trials of the Nazis war generals and the subsequent punishment of the defeated countries' officials. From this point, individuals became subject of international law with the subsequent declaration of human rights in 1948. Charged with the peace and security; promotion of human dignity and economic wellbeing of the world, the UN established Economic and Social Council [(ECOSOC) in article 7 of UN Charter 1945] with the responsibility to initiate studies and to report on international level socioeconomic matters. Invariably, article 68 of UN Charter empowered The Council to set up commissions for promotion of human rights. Subsequently, Human Rights Commission (HRC) was established and headed for the first time by Ms. Elizabeth Roosevelt (the wife of then president Franklin Roosevelt of America). The Commission prepared the Universal Declaration of Human Rights (Universal Declaration or UDHR), 10 December 1948 which was a declaratory standard of human rights promotion and protection expected of the state parties and not legal binding document. An international legal binding instrument was sought for; in 1966, HRC created International Covenant on Economic, Social, and Cultural Rights (CESCR) with the twin document, International Covenant on Civil and Political Rights (CCPR) which form the International Bill of Rights together with Universal Declaration. CESCR and CCPR are meant to be complimentary and indivisible but due to western bloc politics and cold war; western scholars privileged civil and political rights above economic, social, and cultural rights; arguing that CPR is expressed in clear language and does not place an obligation on government for their implementation: Whereas ESC rights depends on government to perform their obligations to guarantee them and is expressed in vague language which renders it unenforceable. They maintain that socio-economic rights are political aspirations/goals or directive objectives of state policies which can only be realized progressively and not of immediate actualization or enforcement. This poor attitude towards socio-economic rights led so many countries of the world including Nigeria to treat ESCR as fundamental objectives of government policy to be progressively realized. In Nigeria jurisdiction, the issue of locus standi, was a clog on the wheel of litigating socio-economic rights; however, this issue has been put to rest by the Chief Justice of Nigeria who made a new rule of court in section 3(e) of Fundamental Rights (Enforcement Procedure) Rules 2009, which provides that no human rights case should be struck out or dismissed on the grounds of want of locus standi. The dissertation will be making comparative analysis of two legal systems comprising India and Nigeria as common law countries and as an emerging economy, although India is well ahead of Nigeria right now and both countries' Constitutions made socio-economic rights Directive Principle of State Policy (DPSP). The study enunciates the definition and historical development of human rights from the inception of UN and delves into the challenges in the two countries chosen as samples of the research, and considers the virile attitude of India's judicial authority towards a liberal interpretation of socioeconomic rights and juxtaposes it with Nigeria's dismal and reluctant attitude towards implementation and enforcement of ESC rights. The work proceeded to prove that socioeconomic rights can be justiciable in Nigeria, if the judicial attitude in administration of justice can positively change to that of enforcement driving. It drew lessons from Indian system and what could be emulated from their integral approach and public interest litigation, because the world attitude towards ESC rights has revamped towards enforceability and concludes with recommendations
Mini Dissertation (LLM)--University of Pretoria, 2017.
Centre for Human Rights
LLM
Unrestricted

This work critically examines the justiciability of the Sudan model of constitutionalising socio-economic rights (SER) and the legal implications of this model. Discusses the following questions: (1) What is the scope and extent of the Sudan Bill of Rights? (2) What is the effect of section 27(3) on section 22 of the Sudan Interim National Constitution? (3) Does the Constitution provide for justiciable SER, if yes, can the South African model of rendering SER justiciable and their standard of review provide a useful guide to the Sudan?
Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2008.
A Dissertation submitted to the Faculty of Law University of Pretoria, in partial fulfilment of the requirements for the degree Masters of Law (LLM in Human Rights and Democratisation in Africa). Prepared under the supervision of Professor Julia Sloth-Nielsen of the Community Law Centre, University of the Western Cape
http://www.chr.up.ac.za/
Centre for Human Rights
LLM

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (the 'Optional Protocol' or the 'OP-ICESCR') has recently been adopted by the General Assembly of the United Nations. This document establishes a new complaints procedure for economic, social and cultural rights ('ESCR') within the United Nations human rights system. Hence, those rights ' as it is already the case for civil and political rights (CPR) ' will become quasi-justiciable at international level. Once the Optional Protocol will enter into force, individuals and groups victims of violations of any right contained in the International Covenant on Economic, Social and Cultural Rights (the 'Covenant' or the 'ICESCR') will have the possibility to submit communications to the United Nations Committee on Economic, Social and Cultural Rights (the 'Committee' or the 'CESCR'), as long as the state concerned is party to the OP-ICESCR.

Poverty and inequality are deeply entrenched in Kenya, with the country being one of the most unequal countries in the world. To eradicate poverty and inequality, enhance the achievement of social justice, fast-track human development, as well as to entrench participatory democracy
and a culture of justification in governance, Kenya has, for the first time, entrenched justiciable socio-economic rights (SERs) in its 2010 Constitution. In this thesis, I undertake a critical analysis of the prospects for the implementation and enforcement of the entrenched SERs as well as the probable challenges that Kenya may face in their realisation. In this endeavour, the thesis develops a theoretical and interpretive approach for the realisation of these entrenched SERs. It entails an expansive analysis of the nature, scope, content and extent of the SERs entrenched in the 2010 Kenyan Constitution, and especially the place of international human rights obligations contained in customs and ratified international human rights treaties due to the provisions of the 2010 Constitution which espouse the direct application of international law in Kenya&rsquo
s domestic legal system. It is submitted in this thesis that in order to improve the socio-economic conditions of the poor, vulnerable and marginalised groups in Kenya, there is a need for their socio-economic as well as political empowerment to enable them to effectively take part in societal decision-making in both the public and private spheres with regard to resource (re)distribution. The theory of dialogical constitutionalism, based on the constitutionally entrenched principle of popular participation in governance and public decision-making, is aimed at the realisation of both political and socio-economic empowerment of these groups. Even though the theory of dialogical constitutionalism underscores the importance of litigation in the achievement of the transformative aspirations of the 2010 Kenyan Constitution contained in the entrenched SERs, it acknowledges that litigation is not the panacea of SER enforcement, and that other political and advocacy strategies play an important role in the emancipation of the socio-economically deprived groups in society. The thesis thus advocates a multi-pronged strategy which espouses the equal participation of all sectors of society in a collaborative and cooperative deliberative effort aimed at the full realisation of the entrenched SERs. To accompany the above theoretical framework for the interpretation and implementation of the entrenched SERs, the thesis further proposes a transformative and integrated approach which combines the progressive aspects of the minimum core approachand the reasonableness approach. This is an approach of purposive interpretion which, in the first instance, envisages the courts undertaking a strict and searching scrutiny of the SER implementation framework developed by the political institutions of the State to ensure that sufficient provision has been made for the basic necessities of the most poor and vulnerable groups in society, basically the espousal of a minimum core content approach. The approach entails the requirement that should the SER implementation framework fail to provide this basic minimum to vulnerable groups, and the political institutions do not provide a substantive justification as to the failure, then the courts should find the relevant SER implementation
framework per se unreasonable and thus invalid. However, should the implementation framework provide sufficiently for the basic essentials for vulnerable groups, the courts should then proceed to review it using the reasonableness standards that have been developed by the
South African Constitutional Court. The rationale for this searching analysis is the acknowledgement that if the needs and interests of the most indigent and marginalised in society are not catered for, the entire corpus of rights in the Bill of Rights becomes redundant. The thesis then undertakes a case study of two rights, the right to food and the right to housing, using the theoretical and interpretive approaches developed in the previous chapters of the thesis. On food security, the thesis finds that Kenya is a food insecure country with a declining food production capacity. This is basically due to a lack of subsidy to farmers, global warming leading to intermittent rainfall, lack of investment in sustainable agriculture as well as a fragmented and contradictory legislative and policy agenda. In response to this situation, the thesis proposes the adoption of a livelihoods approach to food security in Kenya, based on the constitutionally entrenched right to food and other supporting rights. This approach advocates the enhancement of the food entitlements of the different sectors of the Kenyan society to ensure their access to adequate and nutritious food, be it through self-production or through the market. On the right to housing, the thesis finds that housing plays a crucial role in ensuring that people are able to have a holistic, dignified and valuable existence. However, Kenya faces a dire housing situation, with the majority of Kenyans, both in rural and urban areas lacking adequate shelter and sanitary conditions, evidenced by the large informal settlements in urban areas and the squatter phenomenon in rural areas. With the entrenchment of a justiciable right to adequate housing in the 2010 Constitution, the study finds that several legislative and policy reforms are underway to improve the housing situation, with efforts being made to draft theLandlord and Tenant Bill 2007, the Housing Bill 2011, the Evictions and Resettlement Guidelines and the Evictions and Resettlement Procedures Bill, 2012, among others. The thesis proposes that these legal reforms must be undertaken within an environment of cooperative and
collaborative strategic partnership involving all sectors of society so as to ensure that the housing concerns as well as interests of all are catered for.

The thesis offers new paradigms for advancing socio-economic rights in Africa. Many States Parties to human rights instruments have failed to promote the common welfare of their citizens partly because of the justiciability debate, which continues to complicate intellectual and practical efforts at advancing socio-economic rights. The debate also prevents the normative development of these rights through adjudication. Furthermore, traditional human rights theory and practice have been state-centric, with non-state actors largely ignored in the identification, formulation, and implementation of human rights norms. Yet, the involvement of non-state entities in international arena has limited states' autonomies considerably, with serious implications for human rights. Transnational Corporations (TNCs) have capacities to foster economic well-being, development, tenchnological improvement, and wealth, but they also often cause deleterious human rights impacts through thei employment practices, environmental policies, relationships with suppliers and consumers, interactions with governments, and other activities. The thesis argues that socio-economic rights are normative and justiciable. It argues that traditional approaches are no longer sufficient to secure human rights and calls for a dismantatling of some structures erected by doctrinal systems; for realignment of relationships among social institutions; and for integrated bundles of fundamental interests that harness benefits of human rights norms and widen the landscape to commit both formal and informal regimes. Fashioning out a new paradigm for advancement of socio-economic rights requires addressing state capacity. It requires an integrative and global interpretive framework. It requires, finally, a new paradigm to commit non-state actors in Africa. The illustrative chapter uses the rights to work and to social security as templates for some prescriptions towards reaslising socio-economic rights in Africa.
Jurisprudence
LL.D.

This chapter critically examines the ways in which civil and political rights have been distinguished from socio-economic rights, including differing ideologies, subject matter; obligations, resource implications, and justiciability. Instead of such bright-line distinctions, it suggests that all rights should be seen as giving rise to a cluster of duties: to respect, protect, and fulfil. The duty to fulfil is most challenging, especially when framed as a duty of progressive realization subject to maximum available resources. Section II assesses these concepts, particularly the attempt to establish a minimum core. It concludes that a thoroughgoing acceptance of socio-economic rights requires more than the label of ‘human right’. It also entails a re-characterization of human rights values, emphasizing inter-connectedness, mutual dependence, and a substantive conception of equality. Freedom and dignity need to be refashioned to ensure that individuals have genuine choices from a range of valuable options, within a framework of participative democracy.