Comparative Analysis On The Constitutional Enforcement Of Economic, Social And Cultural Rights

Economic, Social and Cultural Rights are generally considered as the so-called "second bill of rights", they are not only recognized in modern constitutional and international law, but also have been shaped by people’s will for the struggle of better life and that life is essential under the notion of human dignity. There has been a considerable amount of thought levied upon Economic, Social and Cultural Rights both domestically and internationally. The conventional wisdom of international law and constitutional law, to some extent, seems to deny or at least be reluctant to recognize Economic, Social and Cultural Rights as basic human rights, not to say a full realisation of those rights. However, the struggles by persons who are vulnerable and disadvantaged for social and economic justice have been articulated more or less within a rights framework. With the advent of ICESCR, modern international human rights law has seen an increasing number of States which not only incorporate Economic, Social and Cultural Rights in their constitutions but also take various shapes on their enforcement. Since it would be naive to think that adopting a bill of Economic, Social and Cultural Rights would naturally ensure their actual protection, the question how Economic, Social and Cultural Rights should be enforced in the real world is nonetheless of crucially significance. Noting that the conception of "progressive achievement" is "the lynchpin" of the ICESCR, United Nations Committee on Economic, Social and Cultural Rights [CESCR], the monitoring body of ICESCR, repeatedly addresses that the key is ’progressively realization’as indicated by Article2(1) of the Covenant. In domestic legal environment, the answer to this great question is found in legislative, adjudicative and executive protection of Economic, Social and Cultural Rights and how those multi-institutional protection mechanisms would function well to meet the international human rights standards. Indeed, at the heart of a multi-institutional approach to protect Economic, Social and Cultural Rights lies the long-established constitutional principle of separation of power, just as the Irish judge Costello J in O’Reilly v. Limerick Corporation case and Keane C. J. in T.D. v. Minister for Education case correctly responded.A series of decisions by the South African Constitutional Court are perhaps the most well-known cases directly addressing the issue of Economic, Social and Cultural Rights and never ever before have international commentators and observers had so much attention and debate on how to protect Economic, Social and Cultural Rights in Human Rights history. Admittedly much has to be said about those cases including the facts, proceedings, judgments, and aftermath in South African context, but it is never a unique phenomenon only meaningful to one particular country. Actually cases on Economic, Social and Cultural Rights protection can be found widely across jurisdictions, such as People’s Union for Civil Liberties v. Union of India&Ors and Shantistar Builders v Narayan Khimalal Totame, in the later case, the Indian Supreme Court has progressively expended the scopes of right to life to Economic, Social and Cultural Rights, stating that "basic needs of man have traditionally been accepted to the three--food, clothing and shelter. The right to life is guaranteed in any civilized society. That would take within its sweep the right to food, the right to clothing, the right to decent environment and a reasonable accommodation to live in." Following the German conception of Leistungsrechte, in China, except very limited administrative litigations at its lower courts such as Wang Ze-Long case and Li Yan-Qi case, case law has never been a dominant resource of law in Economic, Social and Cultural Rights protection, however, the Standing Committee of the National People’s Congress had in2010enacted Social Insurance Law to upgrade its old-ideological-rooted social security system and China is now ambitiously trying to establish a new social insurance system including basic endowment insurance, basic medical insurance, employment injury insurance, unemployment insurance and maternity insurance to guarantee Economic, Social and Cultural Rights for the Chinese citizens. The Chinese social insurance system has long been designed as an administration-driving system and the Ministry of Human Resources and Social Security is the key institution to be responsible for Economic, Social and Cultural Rights protection.This dissertation does not endeavor to provide legal solutions for Economic, Social and Cultural Rights protection in its broad sense or argue for one-fit-all mechanism, not even to cover Economic, Social and Cultural Rights protection in all parts of the world, but to critically understand the core issues surrounding Economic, Social and Cultural Rights protection in a given area, that is China. This is not because the country has suffered or experienced grave poverty and social problems in its declined contemporary history, but due to its lack of intellectual discourses, relative silence of opinio juris and its neglected true minds and voices on human rights which might be great contribution for contemporary academic dialogues. Thus, the whole wording of the dissertation will be formed in the following structure with5major parts and13chapters. Part one consists the first4chapters which aim to give a basic interpretive structure of Economic, Social and Cultural Rights. After an elaborated introduction,chapter two deals with the historical sources of Economic, Social and Cultural Rights. Denying various arguments based on socialism, Franklin Roosevelt’s four freedom and Germany’s Weimarer Verfassung, the dissertation has taken the position in line with professor Johann D. Van der Vyver, arguing that the1917Mexican constitution would be the first positive fundamental law which recognizes Economic, Social and Cultural Rights. Chapter three clarifies the constitutional foundation of Economic, Social and Cultural Rights and that foundation is the fully-fledged constitutional principle-the social state principle (Sozialstaatsprinzip). Chapter four interprets Economic, Social and Cultural Rights from perspectives of functional-structuralism and institutionalism. An intellectual endeavor to Economic, Social and Cultural Rights theory will contribute our deeper understanding about the proudly ontological question’what are human rights?’Questions like’are Economic, Social and Cultural Rights really enforceable human rights?’’why they should be progressively realized?’’what is the institutional legitimacy regarding Economic, Social and Cultural Rights protection?’’is there institutional capacity to judicial enforcement of Economic, Social and Cultural Rights?’are needed to be answered with a sort of academic courage to dig deep into their theoretical foundation. In this sense, the starting part will make some contribution in human rights discourse, if not, exacting some thoughts in the field.Part two are divided into two chapters. The legal gravity of this part has been shifted to the constitutional framework which accommodates Economic, Social and Cultural Rights in the whole political apparatus. Chapter five provides the three major mechanism for any modern state to realize Economic, Social and Cultural Rights, Naming legislative enforcement model, judicial enforcement model and leistungsverwaltung model (administrative model). Various constitutional traditions would require specific enforcement mechanisms regarding Economic, Social and Cultural Rights, research shows that to realize social justice via institutional cooperation might match the reality in the best possible way, even though there is no single country where Economic, Social and Cultural Rights have been fully realized through litigation, judiciary or administration,even by NGOs. Multi-institutional protection of Economic, Social and Cultural Rights provides a channel for citizens especially lawyers to substantiate their arguments against any form of human rights violations. Chapter six turns to the fiscal analysis of Economic, Social and Cultural Rights enforcement. It is pointed that the financial distribution on the horizontal and vertical levels would impact the reality of Economic, Social and Cultural Rights protection, therefore, fiscal constitutionalism must be adjusted, the ’red line’ is the safe net which can guarantee a basic life of dignity for every citizen.Part three enters into more detailed issues of legislative, judicial and administrative enforcement of Economic, Social and Cultural Rights. This part includes chapter seven, eight and nine. Chapter seven aims to elaborate the constitutional function of legislation in the context of human rights protection, it lays out several practical principles which guides the legislators to enforce Economic, Social and Cultural Rights. Chapter eight deals with the administrative branch and how should those state agencies behave under the constitutional requirement of Economic, Social and Cultural Rights protection.Chapter nine collectes worldwide landmark cases to show how should judges bear their constitutional obligation to enforce Economic, Social and Cultural Rights. A good example would be South African scholars in Grootboom and Olivia Road cases, through their aggregated academic efforts, their research triggered mutual interaction between the constitutional judges and lawyer, and consequently they have promoted Economic, Social and Cultural Rights protection in South Africa. What’s more a well-structured co-operative institution will best suit the growing need of Economic, Social and Cultural Rights protection in a transitional society.Part four analyzes the relevant surrounding issues of Economic, Social and Cultural Rights protection and it attempts to show how the peripheral becomes the central. Chapter ten treats cultural rights as unique rights in the second bill of rights and it show why it is special and how to interpret and protect cultural rights from a positivistic perspective. Chapter eleven puts Economic, Social and Cultural Rights protection in the global context and it shows how those relevant international human rights instruments can be implemented by states. Chapter twelve holds that it is necessary for countries undergoing social policy reforms and governance transformation and this is particularly relevant to China, a State who is a member of ICESCR and at the same time a developing country where the gap between the rich and the poor is strikingly huge. An institutional approach to Economic, Social and Cultural Rights can provide new aspiration in a transitional society and it will help the policy and law makers to be fully aware of possible consequences when there is reconstruction or redesign of its constitutional order. Lastly, part five closes all the arguments with several concluding remarks. It is provided that the widely spread socioeconomic human rights violations must be curbed, meanwhile multi-institutional protection of Economic, Social and Cultural Rights must be carefully examined by modern constitutional states. All of those efforts are observed to get a better solution on Economic, Social and Cultural Rights protection especially in China.