Economic and Social Rights: The Role of Courts in China

Abstract

Compared to the average lower-middle income country, China has done relatively well on most social and economic indicators. Chinese courts however have generally played a limited, and rather ineffectual, role in implementing economic and social rights (ESR). The UN Committee for Economic, Social and Cultural Rights has strongly urged China to make greater use of the courts in implementing ESR. This article considers what the role of the courts could and should be in implementing ESR in China. Part I surveys recent global developments giving greater bite to economic and social rights, as well as some of the main controversies, debates, and approaches to promoting, protecting and fulfilling ESR, with particular attention to the role of the courts. Part II provides a general introduction to the social, legal, political and economic context in China, and contrasts the situation in China with South Africa, one of the global leaders in judicial implementation of ESR. The overall environment in China is if not hostile, at least not promising, for a robust role for the courts in protecting ESR. Nevertheless, there is still some room for the courts to play a positive role in implementing ESR. Part III provides policy recommendations regarding the way forward. Part IV concludes.