9 Comparati ve Approaches to Enforcing Economic, Social and Cultural Rights

Prof. Rehan Abeyratne

Introduction

Constitutional courts around the world have adopted various approaches to enforcing economic, social and cultural rights (ESCRs). In the previous module, we examined the Indian Supreme Court’s approach to ESCRs, which has changed significantly since the 1980s. The Supreme Court today enforces a range of ESCRs under the ambit of the right to life in Article 21 of the Indian Constitution. This right has been interpreted broadly as a right to “live with dignity” that includes many of the Directive Principles of State Policy that were originally thought to be non-justiciable.

This chapter seeks to introduce students to the approaches of other countries in enforcing ESCRs. It will look at examples from the United States, Argentina, and South Africa and analyzes the strengths and weaknesses of each system.

Learning Outcomes:

After completing this module, students should know and understand:

• The American approach to enforcing ESCRs. The Argentinian approach to enforcing ESCRs.
• The South African approach to enforcing ESCRs.

The United States historically has not recognized economic, social and cultural rights (ESCRs). To some extent, this can be attributed to the age of the U.S. Constitution – it was adopted in 1788, long before ESCRs were considered to be constitutional rights. The American Bill of Rights, adopted in 1791, therefore has no mention of ESCRs and is devoted entirely to protecting civil and political rights such as the freedom of speech and due process. However, in the 1930s and 40s, the U.S. gave legal recognition to basic socio-economic necessities, even if the Constitution itself was not altered.

Following the Great Depression, which lasted from 1929 until the mid-1930s, U.S. President Franklin D. Roosevelt pushed forward a bold legislative and policy agenda to protect ordinary Americans from socioeconomic hardship. These policies are collectively known as the “New Deal.” By the end of his presidency in 1944, Roosevelt had overseen the enactment of laws establishing the Social Security Administration, the National Labor Relations Board (facilitating collective bargaining between workers and employers to improve wages and working conditions), and the Rural Electrification Administration (to bring electricity to farming communities). However, Roosevelt was not satisfied. His ultimate goal was to institute a “Second Bill of Rights” that would guarantee a minimum standard of living for all Americans. In his annual State of the Union address delivered to the United States Congress on 11 January 1944, Roosevelt spoke of the overriding need for security. His speech was delivered against the backdrop of World War II, but Roosevelt did not limit his speech to physical security against foreign enemies. Rather, noting that “necessitous men are not free men,” Roosevelt proposed the following list of rights that should be guaranteed to all Americans:

• The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;
• The right to earn enough to provide adequate food and clothing and recreation;
• The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;
• The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;
• The right of every family to a decent home;
• The right to adequate medical care and the opportunity to achieve and enjoy good health;
• The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;
• The right to a good education.

Roosevelt passed away not long after delivering this speech, leaving the enactment of his “Second Bill” unfinished. Nonetheless, many of the provisions in the Second Bill have become akin to constitutional rights in the United States. As Cass Sunstein has argued, while the U.S. Constitution has not been formally amended to include the Second Bill, parts of the Bill have been enacted through ordinary laws and have become part of the nation’s “constitutive commitments.” In other words, Americans today believe they have a “right” to social security and to free public education, even though there are no such guarantees in the Constitution.

The U.S. Supreme Court has upheld these constitutive commitments in some respects but has also refused to impose positive constitutional obligations on the state. In Goldberg v. Kelly (1970), the Court held that the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution applies to welfare payments. The Due Process Clause prevents the taking of property without due process of law. The Court held that individuals retain a property interest in welfare payments they receive from the government and are therefore entitled to a hearing before those payments are taken away. However, in Danbridge v. Williams (1970), the Court declined to rule on the substantive fairness of particular welfare programs.8 In this case, plaintiffs challenged a law in the state of Maryland that capped the maximum amount of welfare payments that a family could receive at $ 250 per month. The plaintiffs alleged that this payment ceiling discriminated against families with many children. The Court upheld the constitutionality of the law, declaring that it would not question the validity of such laws as long as they have a minimally rational purpose.

With respect to education, the U.S. Supreme Court has similarly upheld a minimal right to education without involving itself in more complex questions pertaining to the substantive fairness of education-related laws and policies. In Plyer v. Doe (1982), the Supreme Court struck down a Texas law that required undocumented immigrants to pay a tuition fee to attend public school. The Court, therefore, appeared to endorse a constitutive commitment to free public education for all children, even children who were in the United States illegally. However, in San Antonio Independent School District v. Rodriguez (1973), the Court upheld a public school funding system that led to large disparities in educational quality. The case challenged the Texas system for financing public schools, which was based partly on the taxable income of local communities. As a result, the schools in wealthy districts received substantially more funding than those in poor districts. This system was challenged on the basis that it violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. The Supreme Court rejected this challenge, holding that a disparity in funding did not deprive children in poorer districts equal protection of the law. Such a violation would only occur, the Court noted, if some children were absolutely deprived of education. According to Sunstein, this case was the “death knell for the idea that the constitution protects social and economic rights.”

Perhaps the most important judgment on ESCRs in the United States was delivered in Deshaney v. Winnebago County (1989) – a case that did not even pertain to socioeconomic justice. The plaintiff, in this case, a minor, sued the local county and various state agencies for failing to protect him against child abuse. The Supreme Court held that the state had no such obligation and denied his claim for relief. For our purposes, this case is significant because it held that the state had no positive obligations to protect citizens. It stated that the Due Process Clauses in the U.S. Constitution are phrased as limitations on state power and do not act “as a guarantee of certain minimal levels of safety and security.” The Court further stated that the Constitution confers no right to affirmative government assistance “even where such aid may be necessary to secure life.”

Thus, despite Roosevelt’s push for a Second Bill of Rights, the United States does not recognize ESCRs as constitutional rights. It recognizes some minimal entitlements, such as a free public education and welfare payments, as constitutive commitments, but the U.S. Supreme Court has refused to involve itself on issues of substantive justice and has held that the state has no affirmative obligation under the Constitution to provide assistance to those in need.

The Argentinian Approach

The Argentinian Constitution, like its American counterpart, does not explicitly recognize ESCRs. It does, however, require courts to take into account ESCRs decision issued by the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights. In 1994, the Constitution was amended to create a new, collective mechanism to obtain redress for constitutional violations. This “amparo” action allows individuals to file petitions for redress on behalf of a victimized groups.

The Viceconte case (1998) is a good illustration of how the “amparo” mechanism works. It successfully compelled the government to provide a vaccine to prevent an endemic fever and led to a series of judgments that have protected and invigorated programmes for the supply of medicines to combat several deadly diseases. The plaintiff, in this case, asked for a court order to compel the Argentinian Government to take protective measures against Argentine haemorrhagic fever, including a vaccine that was shown to be 95 perecnt effective. The plaintiff alleged that 3,500,000 people were at risk of contracting this disease. In addition, an NGO, the Centro de Estudios Legales y Sociales (CELS) initiated an “amparo” action, asking the State to complete the construction of a laboratory to facilitate research into developing this vaccine.

The case eventually reached the Federal Cout of Appeals, which ruled that the Government was legally required to provide healthcare to individuals in need when the private sector could not provide adequate care. It noted that Article 12(2)(c) of the ICESCR requires states to take measures towards “the prevention, treatment and control of epidemic, endemic, occupational and other diseases.” Because millions of lives were threatened by the Argentinian hemorrhagic fever epidemic, the state had a strong duty to intervene on behalf of victims.

The Court, therefore, held that the Government had not fulfilled its obligations to produce the vaccine in a reasonable time. It further held that the Ministers of Health and Economy personally liable for its production with in a specified schedule. The Court also empowered itself to supervise government compliance with its orders by, inter alia, requiring the Minister of Public Health to appear regularly before the court to report on the government’s progress in producing the vaccine for hemorrhagic fever.

At a procedural level, this case shows that the “amparo” mechanism in Argentina is quite similar to public interest litigation (PIL) in India. As with PIL, the “amparo” action allows NGOs and other concerned groups to file petitions before the judiciary to redress fundamental rights violations of disadvantaged or at-risk groups. Thus, both countries have dispensed with formality in standing (locus standi) requirements to open the courts to cases of substantial public interest, often affecting thousands, or even millions, of people. Moreover, the Argentinian Court in Viceconte exercised a power analogous to “continuing mandamus” to monitor the government’s progress in realizing the right to health in Argentina. As in India, this gives the judiciary greater policymaking authority. While a dialogue between the legislative and judicial branch might be beneficial in promoting better outcomes towards the full realization of ESCRs, it also poses separation of powers concerns. Unelected judges, in this setup, perform a quasi-legislative function for which they might lack both the resources and competence.

III. The South African Approach

We have thus far examined two countries with diametrically opposed approaches to enforcing ESCRs. While the U.S. Constitution does not recognize ESCRs and its Supreme Court has refused to impose positive obligations on the state, the Argentinian courts have followed the Indian approach. Since 1994, Argentina has allowed citizens to bring collective action cases (“amparo”) on behalf of victims of fundamental rights violations. In Viceconte, the Argentinian government was even asked to report to the court on its progress towards fully realizing the right to health.

The South African approach to ESCRs takes a middle-path between the American and Argentinian approaches. The 1996 Constitution of South Africa represented a complete break from the deep injustices of the Apartheid era and sought to be a transformative document. It is, therefore, more aspirational in nature than the American Constitution. It includes explicit ESCR provisions, such as Section 26, which provides, “Everyone has the right to have access to adequate housing.” Section 27 similarly declares, “Everyone has the right to have access to health care services…Sufficient food and water; and social security.” Interestingly, the South African Constitution also specifies minimum requirements the state must satisfy in fulfilling these rights. Section 26 (2) and 27 (2) both provide the following guidelines: “The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.” This language is similar to Article 2 of the ICESCR, but unlike the Convention, this constitutional provision in judicially enforceable. The South African Constitutional Court is empowered to adjudicate cases on ESCRs and grant remedies in cases where these rights have been violated.

The Constitutional Court has issued several noteworthy judgments on ESCRs, which demonstrate a fine balance between requiring the state to take affirmative steps towards the fulfillment of these rights and respecting both the separation of powers and state resource constraints. In Government of the Republic of South Africa v. Grootboom (2001), 900 plaintiffs approached the Constitutional Court claiming a violation of their right to housing under Section 26 of the Constitution. The plaintiffs had been living for years in an informal squatter settlement called Wallacedene. Many had applied for low-cost government housing, but had been placed on waiting lists and were never provided with such accommodation. In 1998, some of them moved onto the private property and established their own low-cost housing, but the owner obtained an eviction notice against them. Many of these illegal squatters, including Grootboom, refused to leave; they were forcibly evicted, and their homes were razed. They therefore claimed their right to housing had been violated.

In a unanimous judgment, the Constitutional Court held that Section 26 imposes a duty on the South African government to provide housing to all its citizens, but that the government is held only to a standard of “reasonableness” as per Section 26 (2) in fulfilling this right. The Court found that the plaintiffs’ constitutional right to housing had been violated because Section 26 required the government to have resources available to assist victims of natural disasters and other short-term crises, such as the eviction of the illegal squatters in this case. The Court, therefore, held that the government must not only have a long-term plan to provide low-cost shelter to all citizens but must also have emergency housing measures in place to provide temporary relief to those with no shelter.

This was a groundbreaking judgment for two reasons. First, the Constitutional Court did not declare any absolute right to housing but limited its decision to judge the reasonableness of the government program. Unlike PIL in India or the “amparo” mechanism in Argentina, the Court did not seek to impose its own policy solutions on the government but simply asked the government to revise its existing housing policies. Second, the Court decided the case in practical terms giving priority to those most in need. It, therefore, required the government to first address the housing needs of the poorest citizens before working to secure housing for all citizens. This is a sensible approach to ESCRs, which looks to remedy the most serious violations before addressing other, less pressing violations.

Summary

Around the world, courts have taken different approaches to the protection and enforcement of economic, social and cultural rights (ESCRs). The United States has no ESCR provisions in its Constitution, but since the New Deal in the 1930s and 40s, it has recognized certain constitutive commitments, such as social security and free public education. However, the U.S. Supreme Court has declined to intervene when socioeconomic inequality leads to substantively worse outcomes for poor individuals or families. It has also held that the U.S. Constitution imposes no positive obligation on the state to provide assistance to those in need, even where such assistance may be necessary to save lives.

If the U.S. does not adequately protect ESCRs, then Argentina is at the other end of the spectrum. Following a constitutional amendment in 1994, Argentina allows collective judicial action (“amparo”) on behalf of disadvantaged or victimized groups. In the Viceconte case, an Argentinian court held that the state violated the right to health of millions of citizens who were at risk of contracting the haemorrhagic fever. Relying on Article 12 of the ICESCR, it required the government to make greater efforts to develop a vaccine for this disease and further required the Minister of Public Health to appear regularly before the court to report on the state’s progress. With these procedural innovations, Argentina has adopted a similar approach to India, where the Court plays a powerful – arguably too powerful – judicial as well as policymaking role in enforcing ESCRs.

South Africa has taken the middle-path between the American and Argentinian approaches. While it’s Constitution explicitly enumerates a range of ESCRs, it also provides that the government is required only to take reasonable measures towards the full progressive realization of these rights. In Grootboom, the South African Constitutional Court held that the state violated the right to housing under Section 26 vis-à-vis informal settlers who were evicted from their homes. The Court did not declare an absolute right to housing; rather, it found that the government’s existing policies failed to meet the test of reasonableness under Section 26(2). It directed the government to revise its policies to make provisions not only towards providing affordable housing in the long-run to all those in need, but also to provide emergency short-term housing to the poorest and most vulnerable citizens.

Reference

1. http://www.nytimes.com/2004/09/19/books/review/the-second-bill-of-rights-a-new-new-deal.html?mcubz=0
2. International Commission of Jurists, Courts and the Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability (Geneva: ICJ, 2008)