Abstract
This edited volume emerged from the General Congress of the International Academy of Comparative Law held in Asunción, Paraguay in October 2022. It contains 18 specific country reports and a general, summarising report by the editors on the justiciability of economic, social and cultural rights. In line with the Academy’s bilingual approach, the abstract of the general report is in English and French. Most reports are in English, while the reports on Denmark and Turkey in French.
Aiming at comparability, the special rapporteurs received an extensive questionnaire, serving as a guideline for the reports. Questions related to constitutional texts, case law, or theoretical approaches. Justiciability is defined as the possibility of bringing a complaint to a constitutional or supreme court and having it adjudicated and the judgment implemented. Economic, social and cultural rights are those laid down in the ICESCR. Given the context in which the reports were prepared and discussed and given the significant impact of the COVID-19 pandemic on economic, social and cultural rights, it appears very plausible that it was also addressed in the questionnaire. This brought to light the very interesting finding that the debates in different countries focussed on different guarantees – adequate and affordable housing in Canada, education in Italy, health in Brazil. These debates also exemplify the negotiations about freedom and state interference. In the case of Canada, housing prices and rent increased dramatically during the pandemic. Lockdowns and economic shutdowns amplified and revealed problems relating to access to adequate housing. Measures like self-isolation overlooked the (lack of) availability of a home for parts of the population. These issues were not so much brought before courts, but put pressure on federal, provincial and municipal governments to take action. In Italy, the pandemic showed how ill-equipped the Italian education system was for the shift to distance learning and teaching models. The right to education could not be enjoyed by many pupils because they did not have internet access. Italian scholars discussed the prioritisation of the right to life and health over the right to education. The importance of public education systems and the constitutional guarantee of schools’ autonomy in the organisation of education were highlighted by academics in particular. In Brazil, the COVID-19 health crisis highlighted the role of the Supreme Court and the federal and local governments in the implementation of rights – in particular, in providing access to resources.
The reports contained in the volume cover 12 European countries (Albania, Belgium, Cyprus, Denmark, Germany, Hungary, Italy, Lithuania, Romania, Slovenia, Turkey, United Kingdom), three American countries (Brazil, Canada, USA) and three Asian countries (India, Indonesia, Japan). The reasons for this choice remain implicit; a more explicit reflection would have been helpful in gaining a deeper understanding of the comparative approach.
The reports address the theory and practice of access to the judiciary as well as different ways in which courts interpret economic, social and cultural rights – ranging from minimum core and non-retrogression approaches, equality, property and legitimate expectations/legal certainty, to balancing, proportionality and deference or procedural aspects, such as the right to be heard or the duty to provide reasons. In particular, the summary of the different interpretative approaches and their contextualisation in the general report is very informative. Different remedies – like invalidating laws, individual or structural remedies – are also detailed. It is noteworthy that the general report also includes information on countries that are not reflected in the specific country reports included in the volume, such as South Africa, Colombia, or Costa Rica.
The general report deduces that the justiciability of economic, social and cultural rights also relates to power struggles within countries – negotiating the role of the judiciary, democratic decision-making processes and budget responsibilities. This can also be observed in respecr of the impact of court decisions – it largely depends on a multitudinous and complex entanglement of social, political and legal factors.
The general report closes with two observations that the editors qualify as challenging: first, the area of economic, social and cultural rights is increasingly governed by an international law framework at the UN and regional levels. Second, the greater inclusion and justiciability of these rights does not necessarily improve social and distributive justice. In countries like India and Colombia, innovative approaches to enforcing economic, social and cultural rights have been taken. In Colombia, for example, the court issued structural orders in a case involving the right to health. A standing panel maintained jurisdiction and issued follow-up orders while the Constitutional Court relied on reporting obligations and a civil society commission to gather information, formulate orders and monitor compliance. The Court interpreted the separation of powers doctrine as a flexible one – with an increasing role of courts where the state legislator or governments significantly fail to protect fundamental rights. This interpretation of the role of the judiciary can also be found in Indian cases. These approaches show the potential of new arguments and ways to address individual and collective rights.
The book is useful to a broad audience, including scholars interested in comparative approaches to (human rights) law, in specific economic, social and cultural rights, in implementation and enforcement strategies of human rights, or in theoretical approaches to human rights. It can serve as the first step for gaining an overview, but also as a reference point for finding interesting aspects for further research, for example case law of specific courts. The special reports provide interesting insight into human rights protection in the specific countries. Thereby, they can serve as a valuable basis for further research that focuses on a specific right or country or another aspect.
