The Political and Legal Activation of Socio-Economic Rights (II)

Colm O’Cinneide

University College London

Editors’ note: this is part II of a two-part post on the marginalisation and revival of social and economic rights. Part I can be read here.

In Part I of this blog post, I examined some of the factors that have contributed to the  marginalisation of social and economic rights (SER). In this post, I turn to recent political and legal developments that have begun to complicate this dynamic.

As discussed in Part I, the legitimacy crisis of neo-liberal orthodoxy has called into question many different aspects of the status quo. This includes established assumptions about what are ‘real’ human rights. The language of SER affirms that states are responsible for ensuring respect for human dignity within the socio-economic sphere, including the provision of adequate education, social welfare, and labour protection. States are also formally committed to respecting such rights. SER thus provide a benchmark to review the adequacy of state provision of basic social goods – which national governments may downplay, but are unable to disclaim out of hand. As a result, despite their uncertain scope, SER provide some leverage for campaigners to push for change to the socio-economic status quo. And this leverage is increasingly being used.

At the political level, it is becoming common for politicians, trade unions, and campaigning NGOs to emphasise the importance of SER. For example, Senator Bernie Sanders made frequent references to housing and health care rights in his recent abortive campaign for the US Democratic Party nomination for President. The work of UN Special Rapporteurs relating to SER has also acquired a greater profile – as evidenced by the impact of the 2018 report by Philip Alston on poverty in the UK. In general, as Matthias Goldmann has argued, the aftermath of the 2008 economic crisis has generated much greater ‘political recognition’ of the potential significance of SER in holding governments to account for the impact of their socio-economic policies.

By itself, this political ‘activation’ of SER is noteworthy. It represents a significant shift in how ‘rights talk’ is deployed in public discourse, with issues of poverty and material inequality now looming larger than they did prior to 2008. But these political developments have also been paralleled by a legal activation of SER – with interesting consequences.   

This legal activation of SER has manifested itself in two principal ways. The first route involves domestic legal enforcement of SER. As is well known, some states have given national courts the power to enforce respect for constitutionally guaranteed SER, with Brazil, Colombia, Portugal and South Africa being prominent examples. The jurisprudence this has generated has not been radically transformative – an improbable eventuality, given the necessary limits of the judicial role in any democracy. However, it has become an important and accepted element of constitutional rights protection in these states; triggered a global debate about the merits of judicially enforceable SER; and produced concrete examples of what had previously been a wholly hypothetical concept – namely fleshed-out SER case-law.

The second ‘activation route’ involves the work of the international expert bodies charged with interpreting and applying SER instruments, such as the UN Committee for Economic, Social and Cultural Rights and the European Committee on Social Rights (which interprets the provisions of the European Social Charter (ESC)). Such bodies have incrementally developed their interpretation of SER standards over the last few decades, through general interpretative statements and their conclusions as set out within the framework of state reporting processes. More recently, new mechanisms for litigating SER claims have been established, which enables these expert bodies to adjudicate individual claims (in the case of the International Covenant on Economic, Social and Cultural Rights (ICESCR)) and collective complaints (in the case of the ESC). While only a limited number of states have signed up to these mechanisms, they have been popular with claimants.  The ESC collective complaints mechanism, for example, has attracted 193 complaints since it was established in 1995, with 75% of those complaints postdating the 2008 economic crisis. Taken together with the norm-setting work of UN Special Rapporteurs working on SER issues, this jurisprudence has gradually given more concrete content to the abstract language of international SER standards – paralleling the previously mentioned developments at national level.

Taken together, these two streams of legal development have made it more difficult to dismiss SER as inherently contentless. The relevant national and international jurisprudence remains largely embryonic. It is by no means uniform, or universally acclaimed. Plenty of scepticism persists about SER, and the desirability of protecting them through law. But their legal activation has shifted the terms of the debate. It shows that it is possible to give SER legal form, i.e. to translate the abstract language of SER into a framework of duties and obligations enforceable through law. This possibility undermines the assumption that SER lack meaningful substance. It also calls into question the status quo within legal systems that provide them with little or no protection, by demonstrating this is not a natural or inevitable state of affairs.

As already mentioned, this has stirred up debate as to whether and how SER should be judicially enforceable. However, the narrow focus of much of the relevant academic literature on this issue has obscured some wider developments. More generally, the ‘legal activation’ of SER has called into question some of the traditional ‘containment doctrines’ used to limit the reach of human rights law into the socio-economic sphere. Such doctrines increasingly appear to be relics of the previous orthodoxy.

In this regard, it is striking that the political and legal activation of SER has coincided with national and international courts showing greater readiness to extend the reach of enforceable civil and political rights into the socio-economic sphere.  One example of this trend is the recent ECHR judgment of J.D. and A v UK finding benefit cuts breach Article 14 ECHR. A further example is the evolving jurisprudence of the German Constitutional Court concerning the need to set the level of welfare benefits in a manner that respects the requirements of human dignity. Such judgments rarely involve more than minimal sorties into the terrain of SER. However, they are interesting indicators that traditional distinctions between enforceable civil and political rights and unenforceable SER entitlements are breaking down.

The legal activation of SER has also influenced its political activation, and vice versa – in an interesting feedback loop.  As Emilios Christodoulidis argues, such activation injects ‘productive tension’ into contemporary ‘rights talk’, by calling into question the marginalised status of SER. This strengthens the hands of activists and campaigners, who are making political arguments about the need to respect such rights. In turn, this enhances pressure for legal change. More generally, this dynamic is changing the status of SER: they are coming in from the margins of human rights discourse. It remains to be seen how close to the centre they get.  

Let me conclude on a brief personal note – and a cautionary note. I spent ten years as a member of the European Committee on Social Rights between 2006 and 2016. During that time, the number of collective complaints received by the Committee expanded exponentially. Much of this was driven by the 2008 economic crisis and its aftermath. This experience confirmed for me that SER have the potential to articulate a substantially different understanding of the role of the state in socio-economic ordering than was reflected in much of the pre-2008 conventional wisdom. However, my time on the Committee also educated me as to the importance of developing SER standards in a sustainable and rigorous manner – and the need to avoid empty rhetoric that would reinforce conventional wisdom as to the essential emptiness of SER. This insight has to be an important element of any future activation of SER going forward.

Colm O’Cinneide is Professor of Constitutional and Human Rights Law, University College London.

Suggested citation: Colm O’Cinneide, “The Political and Legal Activation of Socio-Economic Rights” IACL-AIDC Blog (26 May 2020) https://blog-iacl-aidc.org/social-rights/2020/5/26/the-political-and-legal-activation-of-socio-economic-rights-ii