Economic And Social Rights Research Articles

Non-trade provisions in trade agreements and FDI

Preferential trade agreements (PTAs) increasingly feature a variety of provisions related to economic and social rights (ESR), environmental protection (EP), and civil and political rights (CPR). In this paper we estimate the effect of the degree of legalization of PTAs in these non-trade provisions on the flow of bilateral greenfield FDI. We explore this relation in a structural gravity setting and find that all three types of non-trade provisions affect the flow of FDI negatively. This effect is driven by investments directed to middle- and low-income countries, in particular for more directly economically relevant (ESR and EP) provisions. These latter are also found to have a larger negative impact on FDI between origin-destination country-pairs which differ the most in their commitment on non-trade issues in PTAs with third parties.

Economic Analysis of Law and Protection of Economic and Social Rights

The article reveals the mechanism of ensuring human rights through the prism ofeconomic analysis of law and weighing of constitutional values. The relationship between the economicanalysis of law and the principle of proportionality as criteria for the protection of economic andsocial rights is to ensure a balance of private and public interests. The principle of proportionalityis important in defining the non-discrimination and guaranteeing equal access to social assistance.The first part reveals the role of constitutional justice in protecting economic and social rights.The Constitutional Court of Ukraine protects economic and social rights in accordance with theconstitutionally conforming interpretation of laws pursuant to doctrines of direct action and thehorizontal effect of human rights. The second part of the paper focuses on the role of administrativejustice in the protection of social rights, in particular in the light of the legal construction of humanrights. Finally, differentia specifica protection of the social rights on the example of the right tofreedom of choice of occupation and profession and the right to medical care are highlighted. Thedoctrine of the duty to protect orients the government first of all to provide the infrastructure forthe realization of human rights while respecting human dignity and to take negative and positiveactions to ensure human rights.

Climatizing Human Rights: Economic and Social Rights for the Anthropocene

The climate emergency poses an existential challenge to the human rights project. If human rights are to remain relevant in the Anthropocene, budding theoretical, doctrinal, and advocacy efforts to address the climate emergency need to be deepened and expanded. The task of urgently advancing climate action through rights-based norms, frames and tactics is what I have called “climatizing” human rights. In this paper, I focus on economic and social rights (ESRs) and propose two avenues for the climatization of ESRs. The first route involves applying the existing ESR conceptual and legal tools to the climate emergency. This route entails both addressing the impacts of global warming on the enjoyment of human rights and ensuring that climate policies follow human rights norms regarding substantive and procedural equity. The second, complementary route entails adapting and updating human rights to the Anthropocene’s realities and challenges. In addition to a concern with guaranteeing at least a minimum of individual freedoms, material welfare and equity compatible with human dignity, this goal requires protecting the planetary boundaries that make life on Earth possible – and thus a concern with the limits to human economic activity. Between the minimum and the maximum there is a vast space for human activities that are productive, equitable, regenerative, and respectful of future generations and the planet.

Cultural Foundations and Mythological Nature of Human Rights

The author claims that the concept of human rights arose on European soil as a result ofcertain cultural, political, and economic factors. Its primary base is formed by Christianideas, secularized with the dissolution of feudalism and the spread of capitalism. Inparticular, this concept synthesized the Christian ideas of God’s likeness of man and theomnipresence of God: being god-like, man, like God, may be present in all things, thoughnot in all at once. The main beneficiary was the bourgeoisie, who used personal rights todestroy feudal institutions, political rights to establish control over the state, and economicand social rights to mitigate class contradictions and distract their opponents. The religiousorigin of rights is the key to understanding their important features such as the absence oflogical basis for human rights; helplessness of the law in front of acts that undermine thefoundations of order and are marked as acts of self-realization; extraordinary diversity ofrights, etc. There are several directions of human rights criticism (conservative, moderateliberal, Marxist and Christian). All of them assume that human rights neither adequatelyreflect human nature, nor take into account some of its aspects. Indeed, man is not only anindividual seeking to choose, but also a member of a collective who needs a recognition(conservatism); a being alienated from labor and racial life (Marxism); a believer seekingto avoid sin (early Christianity) and obedient to divine will (Islam); a being who suffersfrom constant suffering and seeks to be saved from it (Buddhism); a victim of civilization,oppressed by the flow of information and the need for constant choice This inadequacyentails a destructive effect: the concept of rights creates a monochrome picture, on which,the human existence is reduced to act of will; gives rise to logical contradictions; destroysreality, monopolizing the axiological basis of cooperation; is used as a tool of submission and domination; creates an absolute justa causa; alienates from existence and formsthe basis for other levels of the mythological structure. The history of human rights is notcomplete: It seems that today humanity is on the eve of fundamental transformations,whose content and final result are difficult to predict.

Implementing economic and social rights in ‘domestic’ jurisdictions: understanding the minimum core obligations approach

This paper investigates the possibility and efficacy of identifying core obligations that should apply to all States in the implementation of Economic and Social Rights (ESRs). The paper acknowledges that ESRs are largely resource dependent, require progressive realisation and that States differ in their level of economic development. However, the paper finds that while the above factors are worth considering, they do not wholly offer reasonable justification to dismiss the core obligations approach. First, the paper examines the core obligations approach. This is followed by the discussion on why this approach should apply to all States. Thereafter, the discussion turns to objections that have been levelled against the core obligations approach. The paper attempts to offer responses to such criticisms. The paper then concludes with the view that although the approach has its challenges, it offers a good conceptual starting point towards the fulfilment of ESRs in domestic jurisdictions.

Economic and Social Rights and Transitional Justice: A Framework of Analysis

This work brings analytical clarity and original insights to the much-debated questions of whether and how to include violations of economic and social rights (ESRs) within the mandate of several widely used transitional justice mechanisms. First, it provides a nuanced and comprehensive framework of analysis to examine whether the inclusion of large-scale ESR violations within the powers of the studied mechanisms is in conformity with the functions they have had traditionally. Second, by analyzing the implementation of this analytical framework with respect to the power to adjudicate and provide reparations for large-scale ESR violations, it sheds new light on important aspects of these questions. It demonstrates that exercising the two mentioned powers by the analyzed mechanisms with respect to large-scale ESR violations is mostly in conformity with the functions these mechanisms have had traditionally. It also shows that most of the challenges that including these violations within the two studied powers would pose to the institutional competence and democratic legitimacy of the examined mechanisms are because these are large-scale abuses, not that they are ESR violations.

Economic and social rights and transitional justice: A framework of analysis

This work brings analytical clarity and original insights to the much-debated questions of whether and how to include violations of economic and social rights (ESRs) within the mandate of several widely used transitional justice mechanisms. First, it provides a nuanced and comprehensive framework of analysis to examine whether the inclusion of large-scale ESR violations within the powers of the studied mechanisms is in conformity with the functions they have had traditionally. Second, by analyzing the implementation of this analytical framework with respect to the power to adjudicate and provide reparations for large-scale ESR violations, it sheds new light on important aspects of these questions. It demonstrates that exercising the two mentioned powers by the analyzed mechanisms with respect to large-scale ESR violations is mostly in conformity with the functions these mechanisms have had traditionally. It also shows that most of the challenges that including these violations within the two studied powers would pose to the institutional competence and democratic legitimacy of the examined mechanisms are because these are large-scale abuses, not that they are ESR violations.

Economic and social rights and truth commissions

ABSTRACT This article asks whether economic and social rights (ESR) violations should be included in the thematic mandate of truth commissions (TCs), and if so, how. Specifically, it analyses whether to investigate large-scale ESR violations would conform to the powers and functions that traditionally TCs have had. This paper argues that TCs can investigate large-scale ESR violations without involving themselves in policy determinations. To support this, it first stresses the content of TC's power to investigate these violations. Second, it demonstrates that determining the content of the large majority of State duties arising from ESR is relatively easy as they are of immediate effect. Lastly, it emphasizes the finding of recent research on ESR adjudication that domestic and international courts and bodies have developed a variety of well-articulated legal techniques to adjudicate ESR violations. Based on a discussion of the various types of State duties arising from ESR, relevant experiences from judicial review on ESR and the Kenyan and East Timorese TCs’ investigations of large-scale ESR violations, this study also sheds light on how TCs whose mandate include large-scale ESR violations can investigate these abuses. This work also identifies capacity and other practical challenges arising from this type of investigation and proposes measures to address them.

‘Exploring the local: vernacularizing economic and social rights for peacebuilding within the Protestant/Unionist borderland community in Northern Ireland’

ABSTRACTThis paper explores the knowledge, understanding and opinions of the Protestant/Unionist borderland communities in Northern Ireland towards economic and social rights (ESR). The article seeks to establish whether economic and social rights have transformative potential for protecting and promoting their rights in the first instance and for building and sustaining peace within their communities. Based upon new primary data gathered from a small-scale empirical study, the article explores local grassroots experiences of ESR. It also examines the particularities of the post-conflict legacy in the borderlands and its impact upon attitudes to human rights and the peace process. The central contention is that despite the historical and political problematic perceptions of human rights for many in the Protestant/Unionist population of the borderlands, evidence shows there are opportunities to engage such communities with ESR in a meaningful and positive way. By vernacularizing economic and social rights, they can be made meaningful and useful to these communities, both for protecting and promoting their ESR and as a tool for peacebuilding within Northern Ireland.

Privatization and Economic and Social Rights

Privatization is an ever more dominant model of economic and social rights (ESR) realization. Contracting out, public-private partnerships, and other approaches by which the private sector takes responsibility for, or supports the state in, delivering ESR-related goods and services are being advanced aggressively at both the national and supranational levels, with international financial institutions playing an especially influential role. Thus far, however, there has been relatively little attention paid to privatization in ESR scholarship and practice, resulting in a significant lacuna from both a normative and an empirical perspective. This gap is perhaps most striking—and worrying—in relation to the work of those international bodies mandated with interpreting and applying the ESR standards under international law. Taking as its starting point the delineation of ESR obligations in terms of the tripartite typology of respect, protect, and fulfill outlined by the United Nations Committee on Economic, Social and Cultural Rights, this article considers how that framework (and the human rights treaty-monitoring bodies which employ it in their work) addresses privatization from an ESR perspective. Highlighting an excessive emphasis on the obligation to protect to the exclusion of other relevant levels of obligation, the author asserts that such an approach is reflective of a failure to conceptualize privatization and the state’s role with regard to such properly—a failure that has very serious implications for the ability of the ESR framework as it stands to capture rights-harming actions in the context of privatization effectively. Arguing for a shift to the obligation to fulfill, the author contends this alternative approach would contribute significantly to the ability of ESR law as it stands to capture—and address—the full scope of state decision-making and (in)action at issue in situations of privatization. The article concludes with observations on recent moves by the Committee which though in the right direction leave much work to be done.

Children's Economic and Social Rights

Recent years have seen a growing understanding of the relationship between poverty and human rights, an explosion in awareness of the status of children as right-holders, and increasing linkages being made between human rights and child poverty in the development context. Galvanized by mounting concerns about the impacts of economic globalization and the 2007–2008 financial and economic crises on children, these developments have unsurprisingly focused academic and practitioner attention on those rights of children that are most directly related to ensuring children’s survival and development needs – namely, children’s economic and social rights (ESR). This chapter focuses on the content of, and obligations imposed by, children’s ESR. It opens by locating ESR under the CRC in terms of the broader international human rights framework on ESR. It then goes on to discuss the duties of States and other actors in terms of those rights, focusing in particular on Article 4 CRC. In doing so, it concentrates in particular on the interaction between the work of the Committee and that of the UN Committee on Economic, Social and Cultural Rights. The chapter concludes with a discussion of what lies ahead for children’s ESR, highlighting crucial challenges, including law’s persistent relative neglect of child ESR, the potential impact of the 2030 Agenda for Sustainable Development, and the ongoing marginalization of children within global society.

Satisfaction with economic and social rights and quality of life in a post-disaster zone in China: evidence from earthquake-prone Sichuan.

This study explored the influence of satisfaction with economic and social rights (ESR) on the quality of life (QOL) of people in post-disaster zones in Sichuan, China. Data from a survey conducted in 2013 in the 5 hardest hit counties in the earthquake-prone area of Sichuan were used. QOL was measured by use of the brief version of the World Health Organization Quality of Life questionnaire (WHOQOL-BREF). Structural equation models were developed to determine the specific features of the influence of satisfaction with ESR on QOL. The mean values of both the WHOQOL-BREF scale and the ESR satisfaction scale were lower than the midpoint of the scales. Satisfaction with ESR had a significant effect on psychological health, social relationships, and environment, apart from physical health. Satisfaction with the right to food had the greatest effect on QOL, followed by the rights to education, work, health, social security, and housing. Satisfaction with ESR had a significant positive influence on the QOL of people in a post-disaster zone, particularly satisfaction with the right to food. Policies on food and education guarantees and mental health intervention are highlighted.

'Do No Harm'? Exploring the Scope of Economic and Social Rights in Transitional Justice

Increasing numbers of academics and practitioners are employing the language of economic and social rights (ESR) when conceptualizing the aims, scope and implementation mechanisms of transitional justice. Their contributions have added to an evolving debate on the boundaries of transitional justice. However, when employing rights language, the current debate on the economic and social dimensions of transitional justice frequently suffers from terminological and conceptual confusion. Problematically, it is not unusual for the claims made by transitional justice commentators with regard to ESR to be founded on apparent misconceptions about both the legal framework and the existing scholarship relating to ESR. Addressing these misconceptions in terms of four key dichotomies and suggesting the way forward, we prepare the ground for a more effective debate on the desirability and feasibility of incorporating ESR into transitional justice processes. In doing so, we assert that such a debate must be based on an accurate understanding of ESR and the obligations they impose. We conclude by demonstrating how inclusion of ESR considerations in transitional justice does not necessitate rethinking transitional justice as a whole.

Economic and Social Rights in National Constitutions

Much has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this Paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights (ESRs) have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, a right to food and water is still very rare. Second, constitutions accord ESRs different statuses, or strengths. More than some one-third of countries identify all economic and social rights as justiciable, another third identify some ESRs as aspirational and some as justiciable, and the last third identify ESRs as aspirational or entrench fewer than two. Third, legal tradition— whether a country has a tradition of civil, common, Islamic, or customary law— is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.

Holding non-state actors to account for constitutional economic and social rights violations: Experiences and lessons from South Africa and Ireland

The horizontal application of human rights to non-state actors (NSA) is an evolving and contested legal area both comparatively and at the international level. In light of this, the article discusses mechanisms by which NSA who violate constitutional economic and social rights (ESR) may be held directly accountable by ESR-holders. Its central focus is the horizontal application of constitutional ESR protections to private relationships, where neither party has a state/public function or state nexus. The article reviews developments in two domestic constitutional systems, those of Ireland and South Africa, in order to demonstrate and explain the different approaches that have been adopted to the issue of horizontality by both the constitutional drafters and the courts in those jurisdictions. It employs this comparative analysis to explore many of the key normative objections that have traditionally been raised under liberal constitutional theory in relation to the application of human rights obligations—and those imposed by ESR in particular—to NSA. The article concludes with an evaluation of the effectiveness of the Irish and South African legal models and approaches in terms of holding NSA liable for violations of ESR, outlining key lessons that these national experiences have for the direct horizontal application of ESR at the international level.

A Tale of Two Judiciaries: Judicial Enforcement of Economic and Social Rights in China and India

Chinese courts have generally played a limited, and rather ineffectual, role in implementing economic and social rights (ESR). In contrast, Indian courts have adopted a much more activist approach, and have been long regarded as a global leader in judicial enforcement of ESR. Nevertheless, compared to the average lower-middle income country, China has done relatively well on most social and economic indicators, and generally outperforms India. This chapter considers two main questions. First, what accounts for the different approaches in India and China? Second, what lessons, positive and negative, can Chinese legal reformers learn from the Indian experience? Part I provides a general introduction to the historical, social, legal, political and economic context in India that has contributed to the active role of the judiciary and implementing ESR, and then contrasts the situation in China. Part II then considers some of the main controversies and debates surrounding the Indian judiciary’s aggressive role in implementing ESR. One of the main lessons is that while there may be some room for a more robust role for the courts in China in implementing ESR, the judiciary ought to proceed cautiously and adopt an approach that seeks to collaborate with rather than antagonize state and party organizations. Part III then discusses how the judiciary might play a more positive role in implementing ESR while minimizing some of the risks experienced by the Indian courts and other judiciaries that have emerged as global leaders in judicial enforcement of ESR. Part IV concludes with some general observations about judicial enforcement of ESR in developing countries.

Economic and Social Rights, Budgets and the Convention on the Rights of the Child

Recent years have seen an explosion in methodologies for monitoring children’s economic and social rights (ESR). Key examples include the development of indicators, benchmarks, child rights-based budget analysis and child rights impact assessments. The Committee on the Right of the Child has praised such tools in its work and has actively promoted their usage. Troublingly, however, there are serious shortcomings in the Committee’s approach to the ESR standards enshrined in the UN Convention on the Rights of the Child (CRC), which threaten to impact upon the efficacy of such methodologies. This article argues that the Committee has failed to engage with the substantive obligations imposed by Article 4 and many of the specific ESR guaranteed in the CRC in sufficient depth. As a result, that body has not succeeded in outlining a coherent, comprehensive child rights-specific ESR framework. Using the example of child rights-based budget analysis, the author claims that this omission constitutes a significant obstacle to those seeking to evaluate the extent to which states have met their ESR-related obligations under the CRC. The article thus brings together and addresses key issues that have so far received only very limited critical academic attention, namely, children’s ESR under the CRC, the relationship between budgetary decision-making and the CRC, and child rights-based budget analysis.

Test of Our Progress: The Translation of Economic and Social Rights Norms Into Practice

The application of the language of “rights” to the economic and social conditions of the world's impoverished populations has gained a great deal of momentum in recent years. Yet, given the continuing pervasiveness of basic deprivations for the world's poor, there is a pressing need to examine precisely how economic and social rights norms (as reflected in international treaties and other multilateral documents) are translated into practices. This article seeks to synthesize the theoretical literature on economic and social rights (ESR) and to examine the variety of legal, institutional, and political mechanisms that facilitate their realization. We utilize legal, anthropological, and sociological theory to identify institutional and cultural factors that affect norm translation, as well as adaptive, processual, and emergent dynamics that may alter outcomes. In moving from theory to method, we conceptualize a number of factors that contribute to rights realization, operationalize them by describing how translation mechanisms of each might manifest in real-world settings where rights are at stake and compile a list of questions and indicators that can be used to measure them. We hope this overview will assist in expanding and enriching human rights theory, facilitate the empirical study of economic justice and thereby contribute to efforts for making economic and social rights a reality.

Budget Analysis and Economic and Social Rights

This paper focuses on economic and social rights (ESR)-based budget analysis, a subject and a methodology of increasing interest to those concerned with monitoring the implementation of human rights, and of ESR in particular. It argues that the increased focus on, and employment of, rights-based budget analysis is merely one manifestation of a broader move towards the integration of human rights and economics discourses at the academic, advocacy and policy levels The author highlights that the evolving congruence, or at least the emergent conversation, between these respective disciplines has accelerated as a result of the current economic crisis. This is attributable to, first, growing awareness of the role that neo-liberal, macro-economic and domestic economic policies and structures played in causing the crisis, and, second, mounting concern about the implications of national and supranational responses thereto for the human rights enjoyment of the most vulnerable in society. Having defined 'ESR-based budget analysis' - a term that has been accorded multiple definitions - the paper addresses three sets of challenges that arise in relation to carrying out such work. It begins by considering the conceptual challenges that result from the current condition of the international ESR framework as set out in the International Covenant on Economic, Social and Cultural Rights (ICESCR) and interpreted by the Committee on Economic, Social and Cultural Rights (the Committee). The second set of challenges addressed is those of a practical or logistical nature that are faced by practitioners seeking to carry out budget analysis in the performance of such work. The final category of obstacles considered relate to efforts to use budget analysis outputs for advocacy purposes. The paper concludes with a consideration of the implications that the economic crisis and the international and domestic responses thereto have for the prospects of rights-based budget analysis as a tool to advance ESR.

Budget Analysis and Economic and Social Rights: A Review of Selected Case Studies and Guidance

This document is a review of a selection of existing guidance and case studies on economic and social rights (ESR) budget analysis. While the initial purpose of the document was to inform the development of the QUB Budget Analysis project’s work, it also serves as an overview of previous work in the field for all those interested in ESR budget analysis. Amongst other things, the report authors seek to draw out lessons, based on the examples considered, for those seeking to carry out such budget analysis.