A/HRC/32/31 relevant, studies indicate that they have played a very minor role, not just in terms of economic and social rights promotion, as noted above, but also in achieving accountability. The main exception in that regard relates to the role of ombuds institutions, which could be much more engaged on matters of economic and social rights than they are, even though their powers generally fall short of being able to provide direct remedies. 42. Because of the relative inactivity of these other actors, studies of economic and social rights accountability have focused overwhelmingly on the courts and on the extent to which the increasing constitutional recognition noted above has enabled them to play an active role in upholding economic and social rights. It is open to question whether this emphasis accurately reflects the main trends in economic and social rights accountability or whether it is due more to the lawyers’ preference for studying courts. It might also be linked to the determination of economic and social rights proponents in the era of post-Cold War constitutional revitalization to respond to the often heard, but highly reductionist, proposition that “if one is to talk meaningfully of rights, one has to discuss what can be enforced through the judicial process”.26 In response, economic and social rights proponents have sought legitimacy by seeking to demonstrate that economic and social rights resemble civil and political rights, at least in this key respect. 43. In the limited space available in the present report, it is impossible to undertake a systematic review of the experience, to date, with justiciability, but some broad conclusions emerge from the voluminous and often excellent literature. 27 44. First, constitutional recognition on its own means relatively little in practical terms. Hence the distinction drawn by Katharine Young between constitutionalizing and constituting economic and social rights, according to which the latter goes well beyond constitutional recognition, to require that the rights are actually effective within the legal system.28 For example, a study on the right to health in Africa begins by celebrating the fact that “from Africa to Asia, Europe and even South America, cases relating to the violation of the right to health are constantly being brought before the courts”.29 Yet, in the study it is shown that, in the African context, South Africa is the only country in which there has been systematic litigation of this sort. Malcolm Langford was correct when he observed that, “the scope for formal judicial review of ESC rights is rather limited outside the use of civil rights or international mechanisms”.30 45. Second, even when economic and social rights are both constitutionally recognized and justiciable, there are many factors that can limit the resulting outcomes. Lawyers might 26 27 28 29 30 Aryeh Neier, “Social and economic rights: a critique”, Human Rights Brief, vol. 13, No. 2 (2006), p. 1. Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge, United Kingdom, Cambridge University Press, 2008); Colleen M. Flood and Aeyal Gross, eds., The Right to Health at the Public/Private Divide: A Global Comparative Study (Cambridge, United Kingdom, Cambridge University Press, 2014); Alicia Ely Yamin and Siri Gloppen, eds., Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge, Massachusetts, Harvard University Press, 2011); Diane Roman, “La justiciabilité des droits sociaux ou les enjeux de l’édification d’un État de droit social”, La Revue des Droits de l’Homme, vol. 1 (2012), available at http://revdh.revues.org/635. Katharine G. Young, Constituting Economic and Social Rights (Oxford, Oxford University Press, 2012), p. 6. Ebenezer Durojaye, “Introduction – The relevance of health rights litigation in Africa”, in Litigating the Right to Health in Africa: Challenges and Prospects, Ebenezer Durojaye, ed. (London, Routledge, 2015). Malcolm Langford, “Judicial review in national courts: recognition and responsiveness”, in Economic, Social and Cultural Rights in International Law (see footnote 15), p. 423. 15