The Death of Socio‐Economic Rights
| DOI | http://doi.org/10.1111/j.1468-2230.2011.00859.x |
| Date | 01 July 2011 |
| Author | Paul O'Connell |
| Published date | 01 July 2011 |
The Death of Socio-Economic Rights
Paul O’Connel l
n
Over the last decade, apex courts in Canada, India, and South Africa^ which have traditionally
been viewed as socio-economic rights friendly ^ have issued judgments fu ndamentally at
variance with the meani ngful protection of socio-economic rights. This jurisprudential turn
can be understood as part of a de facto harmonisation of constitutional rights protection in the
era of neo -liberal globalisation. These national courts, although deali ng with idiosyncratic
domestic constitutional systems, have nonetheless begun to articulate analogous conceptions of
fundamental rights which are atomistic,‘marketfrie ndly’ and, morebroadly,congrue ntwith the
narrow neo-liberal conceptionof r ights,and consequently antithetical to the protection of socio-
economic rights.This view of rights is becoming, well established as the hegemonic view and the
pre-eminence of this view,taken with the entrenchment of neo-liberal policy prescriptions ^ and
tacit judicial approval of such policies ^ signals the end, in substantive terms, forthe prospect of
meaningful protection of socio-economic rights.
The debate about whether or not socio -economic rights should be constitution-
ally entrenched ^ and judiciallye nforceable^ hasled tomuch ink bei ng spilt over
the last thirty years or more.
1
For some this debate has now, for the most part,
been resolved; and the broad consensus view has emerged that socio-economic
rights are ‘real rights’a nd should be justiciable in the same way as civil and political
rights are.
2
To an extent this view is buttressed by developments at the interna-
n
Lecturer in Law,Universityof Leicester.The argument developed in th is paper was initial ly presented
at theW. G.Hart Legal Workshopon Comparative Perspectives on Constitutions:Theory and Practice
at the Institute of AdvancedLegal Studies, London on 29 June 2010and be ne¢ted fromthe comments
of a number of participants. Subsequent drafts have bene¢ted signi¢cantly from the comments of
Jason Beckett, Aeyal Gross, Sandra Liebenberg, Virginia Mantouvalou, Colm O’Cinneide, Andreas
Rahmatian, Margot Salomon and Mark Tushnet, as well as the editors and two anonymous referees
for the ModernLaw Review,I am grateful to all of them for their time and input. Asever, responsibility
for anyremain ingde¢cie ncies of styleor substance rests solely with the author.
1For illustrative examples of the di¡erent perspectives in this debate see: F. Michelman,‘Welfare
Rights in a Constitutional Democracy’ (1979) Washington University Law Quarterly 659; A. C. Pereira-
Menaut,‘AgainstPositive Rights’(1988)22 ValparaisoUniversityLaw Review 359;H. Schwartz,‘Do
Economic and Social Rights Belong in a Constitution?’(1995 ) 10 Am erican Universit y Journal of
International Law and Policy 1233;C.Fabre,Social Rights Under the Constitution (Oxford: Oxford
University Press,200 0); A. Eide,‘Economic,Social and Cultural Rights as Human Rights’i n A.
Eide, K. Krause and A. Rosas (eds), Economic, Social and CulturalRights: ATextbook (The Hague:
Martinus Nijho¡, 2
nd
ed, 2001) 9; M. Dennis and D. 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?’(2004) 98 AmericanJournal of InternationalLaw
462; and A. Neier,‘Social and Economic Rights:ACritique’(200 6)13(2) Human RightsBrief 1.
2Such optimism is exempli¢ed by Langford’s claim that ‘It is arguable that one debate has been
resolved,namely whether economic, social and cultural rights can be denied the status of human
rights on the basis that they are not judicially enforceable’; M. Langford,‘The Justiciability of
Social Rights’ in M. Langford (ed), Social RightsJurisprudence: EmergingTrends in International and
Comparative Law (Cambridge: Cambridge University Press, 2008) 3, 4; similarly Henrard has
recently argued that ‘the recognition of the justiciability of economic, social a nd cultural rights
is growing and becoming stronger by the day’: K. Henrard,‘Introduction:The Justiciability of
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
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(2011) 74(4) 532^554
tional level, where the recent adoption of the Optional Protocol to the Interna-
tional Covenant on Economic, Social and CulturalRights (OP-ICESCR) seems
to signal the ¢nal coming of age for socio-economic rights.
3
Andbythecon-
scious entrenchment of socio -economic rights in certai n national constitutions,
most notably the South African, as well as a bourgeoning socio-economic rights
jurisprudence in a number of jurisdictions, again most notably in South Africa,
but also in Latin America.
4
While, on one level, these developments are to be welcomed, there is nonethe-
less cause for concern regarding the fate of socio-economic rights. Put simply, there
is the very real danger that in the era of neo-liberal globalisation, socio-economic
rights, despite progress in their formal recognition and even entrenchment, are
being fundamentally undermined and rendered nugatory by a pincer movement
involvingboth the discursive and material negation of the value of such rights.
5
At
the discursive level, Katarina Tomas
›evski wrote a number of years ago that there
was a need todefend all socio-economic rights‘against distortions, not onlydenials
and violations’.
6
In the contemporaryera such distortions take the form of recasting
socio-economicrights into‘marketfriendly’, consumerist norms and,among other
things, the reduction of entrenched socio-economic rights to formal, procedural
guarantees, rather than substantive material entitlements.
7
ESC Rights and the Interdependence of All Fundamental Rights’(2009) 2 Erasmus Law Review
373, 377. In contrast Barak-Erezand Gross argue that ‘despitethe renewed conse nsus regarding the
interdependence of rights,the debates over the similarities and di¡erences between the two sets of
rights, and the frequent relegation of social rights to second-class status, persist’: D. Barak-Erez
and A. Gross,‘Introduction: DoWe Need Social Rights’ in D. Barak-Erez and A. Gross (eds),
Exploring SocialRights (Oxford:Hart Publishing, 2007) 1, 6.
3Fordi scussion of the Optional Protocolsee: C. Mahon,‘Progressat the Front:The Draft Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights’(2008) 8
HumanRights Law Review 617; L.Chenwi,‘Towards theAdoption of the International Complaints
Mechanism for Enforcing Socio-Economic Rights Under the ICESCR’(2008) 9(2) ESRReview
20; and J. Kratochvil,‘Realizing a Promise:A Case for Rati¢cation of the Optional Protocol to
the Covenant on Economic, Social and Cultural Rights’(2009) 16(3) HumanRights Brief 30.
4For a good introduction to the South African jurisprudence see: S. Liebenberg,‘South Africa:
Adjudicating Social Rights Under a Transformative Constitution’ in M. Langford (ed), Social
RightsJurisprudence: EmergingTrends in International and Comparative Law (Cambridge: Cambridge
University Press,20 08) 75.And i n relation to some of the developments in Latin American see:
M. Sepulveda, ‘Colombia: The Constitutional Court’s Role in Addressing Social Justice’ in
M. Langford (ed), Social RightsJurisprudence: EmergingTrends in International and Comparative Law
(Cambridge: Cambridge University Press,2008) 144; and F. Piovesan,‘Brazil: Impactand C hal-
lenges of Social Rights in the Courts’ in M. Langford (ed), Social Rights Jurisprudence: Emerging
Trends in Internationaland ComparativeLaw (Cambridge: CambridgeUniversity Press, 2008) 182.
5M. Pieterse,‘Beyond theWelfareState:Globalisation of Neo-Liberal Culture and the Constitu-
tional Protection of Social and Economic Rights in South Africa’(2003) 14 Stellenbosch Law
Review 3 argues that ‘[neo-liberalism] threatens to weaken socio-economic rights both on [a]
discursive and structural level. Discursively it delegitimises social rights . . . [and the] concrete
elements and structural implications of economic globalisation and neo-liberal reform
programmesfurther complicate the realis ationof socialrights’.
6K. Tomas›evski, ‘Unasked Questions about Economic, Social and Cultural Rights from the
Experience of the Special Rapporteur on the Right to Education (1998^2004):A Response to
Kenneth Roth,Leo nardS. Rubenstein, and Mary Robinson’(20 05) 27 Human RightsQuarterly
709, 710.
7For a discussion of thi s phenomenon of ‘proceduralisation’ in the South African context, see:
D. Brand, ‘The Proceduralisation of South African Socioeconomic Rights Jurisprudence, or
Paul O’Connell
533
r2011The Author.The Modern Law Review r2011The Modern Law Review Limited.
(2011)74(4) 532^554
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