A/HRC/32/31
adoption of international complaint mechanisms that cover ESC rights…. This has
been accompanied by a rise in regional and national adjudication of ESC rights.14
31.
Another very positive account argues that “the broad normative framework of ESC
rights has attained a high degree of specificity in terms of content as well as efficacy of
implementation mechanisms, most importantly at the national level”.15
32.
However, any assessment of progress made needs to begin by acknowledging that
the starting point was one of essential neglect. The key question is thus not quantitative, but
qualitative, in nature. Have the many developments led to economic and social rights being
taken seriously in the actual practice of governments and other major actors, and have the
foundations been laid for continuing strength in the future? This is where the RIA
framework is central. In the next section, consideration is given to how much progress has
been made at the national level in relation to each of the three dimensions of recognition,
institutionalization and accountability.
A.
Legal recognition
33.
It has been suggested that “countries are choosing social rights constitutionalism
over other ways to promote well-being and the fulfilment of basic human needs”. 16 A
systematic and detailed study of economic and social rights in national constitutions
provides detailed evidence to support this optimistic assessment; 195 constitutions were
examined with a view to identifying which of 16 separate economic and social rights were
recognized and, where they were recognized, whether the constitutions classified them as
justiciable or aspirational (such as directive principles of State policy). Over 90 per cent of
the Constitutions recognized at least one economic and social right. In around 70 per cent
of the Constitutions, at least one economic and social right was explicitly justiciable and
around 25 per cent of them recognized 10 or more justiciable economic and social rights. In
order of frequency, the justiciable rights concerned education, trade unions, health care,
social security, child protection and environmental protection. The study found that those
six rights appear in over half of all Constitutions.17
34.
While the present report cannot do justice to the richness of these survey findings, it
is clear that impressive levels of constitutional recognition have been achieved and that
many more economic and social rights are considered to be justiciable, and in many more
countries, than was previously thought to be the case. However, if it turns out that the
practical consequences of such constitutional recognition have been very limited, there
would be much less to celebrate and attention would need to be focused on supplementary
or alternative approaches. Thus an assessment of the significance of these findings requires
a careful examination of the empirical consequences of constitutional recognition in terms
of enhanced accountability and improved levels of realization of economic and social
14
15
16
17
12
Malcolm Langford and others, “Introduction – An emerging field,” in Global Justice, State Duties:
The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law, Malcolm.
Langford and others, eds. (Cambridge, United Kingdom, Cambridge University Press, 2014), p. 7.
Eibe Riedel, Gilles Giacca and Christophe Golay, “Introduction – The development of economic,
social and cultural rights in international law,” in Economic, Social and Cultural Rights in
International Law: Contemporary Issues and Challenges, Eibe Riedel, Gilles Giacca and Christophe
Golay, eds. (Oxford, Oxford University Press, 2014), p. 3. See also Gregor T. Chatton, Vers la pleine
reconnaissance des droits économiques, sociaux et culturels (Zurich, Schulthess Verlag, 2014).
Brinks, Gauri and Shen, “Social rights constitutionalism” (see footnote 4), p. 291.
Jung, Hirschl and Rosevear, “Economic and social rights in national constitutions” (see footnote 13),
p. 1053.
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