Relaunching the IACL Research Group on Social Rights, 2020

We are pleased to announce the relaunch of the IACL Research Group on Social Rights (RGSR) in 2020. As we enter a new decade with newer challenges being mounted to existing regimes of social protection and the enactment of new ones, the RGSR serves as a semi-institutionalised setting for sharpening current debates in legal scholarship and proposing directions for further research. The RGSR looks to enable scholarly conversations between academics researching and writing about international and domestic law relating to social rights.

Substantively, the RGSR will ask newer questions about the relationship between social rights and the broader political and social setting within which they are embedded. In an age of deepening inequality, what role should citizen entitlements from the government play in creating a safety net to provide the conditions necessary for human flourishing? How should levels of entitlements be judicially managed and adjudicated? Should courts or the representative branches be the focus of engagement for civil society coalitions? 

These are only some of the questions which this RG will engage with while acknowledging that the research agenda will be set in a collaborative way by the members of the RGSR. Three lines of enquiry form the priority for the RGSR, with members being free to suggest additions or elaborations, as well as sub-questions which can be subsumed within these. 

First, theorizing responses to claims that SR serve to cement a political imaginary concerned primarily with adequacy, rather than the setting of standards. Relatedly, the RGSR will look to situate its discussions within the broader political economy in which these rights are articulated. 

Second, the RGSR will explore the institutional forms which such responses can take, including newer forms of judicial review, or the increasing use of diagonal forms of accountability in the shape of human rights commissions and ombudsman bodies. 

Third, the RGSR will explore the relationship between equitable outcomes in social provisioning and the increasing algorithmization of the welfare beneficiary identification and delivery processes. 

Fourth, the RGSR will consider questions on the relationship between domestic constitutional and supranational adjudicatory responses to changes in social entitlements which have been altered in the wake of the global financial crisis. 

Fifth, the RGSR will consider the lessons which can be drawn from the judicial treatment of social rights across a variety of jurisdictions and what their implications are for comparative constitutional theory. 

As part of the relaunch, we aim to facilitate the dissemination of our group's research to a broader audience through short blog posts of approximately 600 - 800 words which will be posted on the RGSR site, while also being crossposted on the IACL Blog. Please email your proposals (100 words) for posts on issues relating to any of the above-identified areas by 5 March 2020 to Gaurav Mukherjee (mukherjee_gaurav@phd.ceu.edu). 

-  George Katrougalos

    Marcelo Figueiredo

    Victor Bazan

    Gaurav Mukherjee

Digest of Developments on Social Rights (Winter 2019 - 2020)

Developments in Courts and News

1. Human Rights Watch submitted a review to the Committee on Economic, Social and Cultural Rights’ in respect of France on its treatment of unaccompanied migrant children and its protection of students, teachers, and schools during armed conflict under the ICESCR.

2. A Dutch court ordered the immediate halt of an automated surveillance system for detecting welfare fraud because it violates human rights

3. The Supreme Court of the United States ruled that it would not reconsider a decision by the Ninth Circuit Court of Appeals saying that enforcement of Boise’s ordinances constituted cruel and unusual punishment when “there is a greater number of homeless individuals in [the jurisdiction] than the number of available beds [in shelters].”

4. The High Court of Kenya halted a controversial biometric ID scheme until new data protection laws are enacted.

New Scholarship

1. Alexandre de le Court, Sufficiency principle and minimum social security benefits: an analysis from the perspective of the German right to a minimum of subsistence 32(2) Rev. derecho (Valdivia) (2019) (analyzing the recent case concerning social minimum in Germany from a comparative perspective).

2. Renu Ghimire, Right to Housing as a Fundamental Right in Post-Earthquake Nepal: The Interplay of Municipal and International Law 3 Nat. Jud. Acad. L.J. 205 (2019) (describing the heightened need for protection and interaction between domestic and international law in emergent situations in South Asia).

3. Toomas Kotkas, Ingrid Leijten, Frans Pennings (eds.), Specifying and Securing a Social Minimum in the Battle Against Poverty (2019) (bringing together a wide variety of perspectives on the legal and academic dimensions of a social minimum and its expression in law and policy across jurisdictions).

4. Juan Carlos Benito Sánchez, Committee on Economic, Social and Cultural Rights Decisions on the Right to Housing in Spain (2017–2018), in Ben Djazia et al., Forced Evictions and Judicial Developments Michel Vols, and Christoph U. Schmid (eds.), Houses, Homes and the Law. Studies in Housing Law (The Hague: Eleven International Publishing, 2019) (putting together CESCR committee decisions on forced evictions).

5. Jessie M. Hohmann, The Elements of Adequate Housing: Grenfell as Violation 5(2) Queen Mary Human Rights Law Review 1 (2019) (considering the Grenfell Tower fire as a breach of the right to housing by the UK, in contravention of its obligations under international law).

6. Conor Casey, Courts, Public Interest Litigation, and Homelessness: A Commentary on Recent Case Law Dublin University Law Journal (2019) (Forthcoming) (providing a summary of jurisprudence emerging from the High Court of Ireland).

7. Jootaek Lee, The Human Right to Education: Definition, Research and Annotated Bibliography 34(3) Emory International Law Review (2019).

 Announcements and Events

1. The Centre for Human Rights, University of Pretoria, will host a one-week intensive short course on judicial enforcement of socio-economic rights in Africa from 18 to 22 May 2020. Apply online here. 

2. The 16th Economic and Social Rights Academic Network: UK & Ireland (ESRAN-UKI) workshop will be held at the University of Liverpool, School of Law and Social Justice on Friday 20 March 2020. Abstracts due by 21 February. 

3. The Law and Development Institute and Bucerius Law School will co-host the 2020 Law and Development Conference on “Law and Development in High-Income Countries” in Hamburg, Germany on November 6, 2020.

4. The Centre for Human Rights, University of Pretoria, will host a one-week intensive short course on judicial enforcement of socio-economic rights in Africa on 18-23 May 2020.

5. The University of Nottingham Human Rights Law Centre and Doughty Street Chambers will be co-hosting a one-day training course entitled “Social Rights in Europe: Advocacy and Litigation” on Tuesday 10th March 2020.

Replacing ‘Fortress’ Conservation with Rights-based Approaches Helps Bring Justice for Indigenous Peoples and Local Communities, Reduces Conflict, and Enables Cost-effective Conservation and Climate Action

Authors Victoria Tauli-Corpuz, Janis Alcorn, Augusta Molnar:

https://rightsandresources.org/en/publication/cornered-by-protected-areas/#.W1i_BlBKiUk

Can Human Rights bring Social Justice?

http://www.amnesty.nl/sites/default/files/public/can_human_rights_bring_social_justice.pdf

The Right to education, Public Hearing and Strategic Litigation in Brazil

On December, 16^th, 2013, the Higher Court of State of São Paulo delivered a landmark judgment in a civilian action (“ação civil pública”) against the Municipality of São Paulo, which aimed to provide education for 736 children and to expand the supply of childhood education by building school units to meet the demand officially registered, and also to compensate those missed for moral and material damages, due to the State Omission. The right of children to education has been regarded as priority obligation of the Municipality, provided for by the Brazilian Constitution in a judicial review (Appeal n. 0150735-64.2008.8.26.0002).

The Municipality of São Paulo was compelled to create new vacancies in nurseries and pre-schools sufficient to attend the number needed within the assigned period. It was compelled to provide for  the expansion of the childhood education services in the budget law and to present, within the stipulated time, a plan to increase the enrollment of children and the buildings for education. In addition, it was required to present full reports on the measures taken to comply with the judicial order, every six months.

The civilian action was filed by several NGOs, as part of the self-styled “nurseries for all movement”. For first time the Court of São Paulo State called a public hearing to listen to litigants, experts on education, prosecutors and public defenders.

In its reasons, the Court made reference to the Brazilian Supreme Court (“Supremo Tribunal Federal”) case on right to education for children (RE 410.715-5) construing article 208, IV of the Brazilian Constitution (a duty to provide education to children up to six years old).  The education of children had been conceived, at that time, as an “indispensable constitutional prerogative”, “one of the most expressive social rights” and as a limitation to political-administrative discretionary nature of municipal entities. Importantly, it not subject to the “reserve of possible” doctrine (This doctrine is normally invoked by State in order to avoid compliance with certain programmatic provisions on the grounds of lack of resources. However  but that this is a uniquely Brazilian interpretation of the doctrine, that is quite different from the German conception of the doctrine (BVerfGE 33, 303, Numerus Clausus).)

The following articles of the Federal Constitution were mentioned: art. 205 (education as a right of the citizen and a state duty), 208, IV, 211, § 2o (municipalities duties on elementary school) and 227 (children priority and state, society and family duties). Also the following precedents of the Supreme Court related to education non-retrocession were invoked: RE n. 639337 and RE 464.143.

The non-retrocession principle is a prohibition on a reduction in administrative measures and laws cannot providing for social rights. The Constitutional Court of Portugal was the first to invoke this principle and it influence In Brazil can be traced to the influence of the German form of the doctrine.

The prohibition of social regressivity principle (principle of the retrocession prohibition) which was invoked in this case had also been invoked in other cases involving unconstitutional administrative omission, such as the case regarding expansion and improvement in public service for pregnant women (RE 581352).

The Court of the State of São Paulo took into account the fact the management of the City of São Paulo had signed a commitment of creating one hundred fifty thousand new places at the education services as part of its budget planning goals (In Brazil, the Executive Branch has to send to Parliament its proposal for Multiannual Plan, every four years).

The municipality was compelled to create these places, between the years 2014 and 2016 for children up to five years old, to include in the budget proposal the expansion of education services and to present every six months reports on the measures taken to the Youth and Children Section of the Judiciary, which may call prosecutors, public defenders and civil society, in general, to monitor the compliance with the judgment.

On the question of education subject matter, the Supreme Court of Brazil had stated that article 211, §2o of the Federal Constitution is a programmatic rule which finds achievement by means of laws intended to implement public policies (RE 401880).

In a case regarding the failure of the President to eradicate illiteracy, the action was dismissed by the Supreme Court (ADI 1698), since specific statutes had been enacted and according to social indicators the illiteracy rate had been reduced.

In addition, according to the criteria established by OAS Permanent Council Resolution n. 1022, the states parties must submit periodic reports, with quantitative and qualitative information with progress indicators in the area of economic, social and cultural rights - article 19 of OAS San Salvador Protocol.

Public hearings, budget process and social indicators, including human rights indicators, should also compose the reasoning of judges.

Marcelo Figueiredo and Konstantin Gerber, IACL Social Rights Research Group - Latin American Subgroup.

Thank´s to Professor Adrienne Stone for the review.

Social rights in Southern Europe

Dear colleagues,

We are Mariana Canotilho (University of Coimbra and Portuguese Constitutional Court) and Luís Vale (University of Coimbra). As we mentioned during this working group's meeting in Oslo, we are interested in establishing a sub-group of people who are willing to study the situation of social rights in Southern Europe, especially having in mind the economic crisis scenario and the impact of EU law and of EU/Troika demands in the protection of such rights, as well as the relationship between national constitutional provisions, EU fundamental rights' norms and all the legal framework that has been set up to tackle the crisis.

Perhaps we could start by finding out how many of us are interested in this subject, by comenting this post. If you have any other suggestions on how we should work, please go ahead and tell us.