Models of Constitutional ESC Rights

1. Models of Constitutional ESC Rights Professor Aoife Nolan, University of Nottingham aoife.nolan@nottingham.ac.uk

2. Explaining Different Models • Every domestic experience is affected by the particular historical, political and legal context of the country in question • Not a case of one size fits all! • BUT there are some non-country specific things that have influenced countries’ choices of model/approach to ESCR • International human rights law standards on ESCR that that country has voluntarily agreed to be bound by (e.g., the International Convention on Economic, Social and Cultural Rights) • Comparative experiences • From countries that already protect ESCR • From countries that are considered to be ‘similar’ (economically, culturally, politically, regionally) • From countries facing similar ESRC-related challenges

3. Key Questions in Picking a Model • Will the particular model meet the concerns that have led to a desire for ESCR in the first place? • Will it serve as a tool to advance the position of people whose ESCR are not being given effect to? • Will it be manageable for the government? • Does it set out standards that will serve as an appropriate framework for government action? • Does it impose obligations that are realistically achievable for government? • Will it be manageable for the courts? • Is the model one that can be enforced effectively by the courts? • Is the model one that will result in the courts being over-burdened with cases?

4. An Important Buzzword… • ‘Justiciability’ • A ‘justiciable’ ESCR is one that is enforceable by the courts • E.g., the right to education under Article 42.4 of the Irish Constitution

5. Approaches to Including ESCR • Inclusion of justiciable ESCR • Present in a growing number of national constitutions (Europe, Africa, the Americas) • Inclusion of non-justiciable ‘Directive Principles’ • Present in a number of national constitutions (India, Ghana, Bangladesh, Ireland) • Inclusion of initially non-justiciable ESCR which become enforceable before the courts after a period of time • Very uncommon

6. Justiciable ESCR • Advantages • The imposition of broad obligations on government to give effect to ESCR in its law- and policy-making • Provision of a remedy to claimants whose ESCR are not being given effect to • Makes it clear that ESCR and civil and political rights are of equal status and importance • Concerns • Potential for judicial interference with economic and social policy and budgetary matters • The potential complexities of defining the scope of such rights and ensuring their enforcement through the courts

7. Directive Principles • Advantages • Provide a guiding framework for government while not limiting government decision-making powers • May serve as a useful aid in judicial interpretation of rights such as the right to life or the right to bodily integrity • Concerns • DP are non-enforceable, therefore governments may ignore them, thereby rendering them meaningless. • Risk that no effective remedy will be available to those whose ESCR are violated

8. ESCR on ‘Time Delay’ • Advantages • Gives elected branches of government time to conform before being liable to being held judicially accountable • Concerns • Risk of lack of effective remedy for current ESCR violation victims • How to determine appropriate time limit?

9. Going with Justiciability? What Next… • ESCR generally are to be progressively realised subject to the state’s maximum available resources but then particular groups are identified whose ESCR should be realised immediately • ESCR generally are to be progressively realised subject to the state’s maximum available resources but then specific obligations are identified that must instead be realised immediately

10. Going with Justiciability? What Next… • All ESCR subject to progressive realisation and the extent of the state’s maximum available resources - no mention of immediate obligations at all • All ESCR obligations immediately enforceable for everyone in all instances