In Search of Alternative Standards for the Adjudication of Socioeconomic Rights

—Carlos Bernal, Senior Lecturer, Macquarie University

Socioeconomic rights are one of the greatest innovations of contemporary constitutionalism, in particular, of developing countries. Some of their constitutions address the issues of poverty, unsatisfied basic needs, lack of resources for the exercise of freedoms and political rights, and unequal distribution of opportunities and wealth, by means of the entrenchment of this kind of rights. Furthermore, international human rights institutions and constitutional courts–such as the South African or the Colombian–are enforcing these rights using resourceful techniques of judicial reasoning and adopting original remedies.

However, these adjudication practices have given rise to sharp criticisms.

The most relevant objections form a wide spectrum that goes from institutional concerns related to the capacity of courts to enforce such rights to the incompatibility of their enforcement with the rule of law and the foundations of representative democracy. In addition, astonishing evidence points to the fact that these rights are not benefiting the poor but middle class citizens somehow able to meet their needs by means of ordinary market strategies.[1]

Within this spectrum, a particular debate revolves around the issue of the appropriate standard for the adjudication of socioeconomic rights. Two main views are at stake: the weak and the strong rights theses.[2] According to the former, courts should undertake the adjudication of socioeconomic rights by means of a weak standard of reasonableness, like the one used by the South African Constitutional Court in the Grootboom case.[3] By contrast, the latter maintains that this does not suffice for an adequate protection of socioeconomic rights. Instead, they should be rendered stronger by means of the employment of a minimum core standard.

Evidence suggests that none of these views are plausible. On the one hand, an analysis of recent South African constitutional jurisprudence, including Grootboom, TAC, and Mazibuko,[4] leads to a case against the weak rights thesis. Reasonableness can neither guide courts in defining the scope of socioeconomic rights nor ground a review of a rational Pareto-optimal use of the available resources for the satisfaction of these rights. In addition, reasonableness can justify the constitutionality of state plans and actions unable to protect these rights at an adequate level,[5] and creates a framework in which they are easily outweighed by economic interests of private stakeholders.[6]

On the other hand, the recent Judgment T-740/2011 of the Colombian Constitutional Court offers some reasons to oppose the strong rights thesis.[7] In this Judgment, the Colombian Constitutional Court resolves an injunction in which the applicant, who lacks financial capacity to pay the water bill, claims that the suspension of the service by a private company violates her fundamental right to water and requests unlimited free delivery of this resource. Despite the lack of a provision guaranteeing the right to water in the Colombian Constitution, the Court acknowledges the validity of this right on the basis of its linkages to the right to life and to human dignity. Moreover, based on the General Comment No. 15 (2002) of the Committee on Economic, Social and Cultural Rights,[8] and on a 2003 report on ‘Domestic Water Quantity, Service Level and Health’ of the World Health Organization,[9] the Court establishes that the core of the fundamental right to water entitles each person to receive a daily amount of 50 liters. Consequently, the Court orders the defendant to provide to the applicant and to each member of her family this amount of water free of charge for an unlimited future, and entitles the company to claim from the state a reimbursement of 50% of the price of that free water.

This case illustrates two of the main problems of the minimum core standard, namely, the lack of reliable criteria to define de minimum,[10] and, what can be called, the democratic objection.[11] Why is 50 liters the minimum core, if, for instance, it is 20 liters in South Africa? And, why the Constitutional Court considers itself entitled to determine this minimum and to allocate in a private company the responsibility to satisfy it? Given that the Constitution does neither state the minimum nor the mode of providing it, and that there can be reasonable disagreements about these matters, political authorities seem to be more democratic legitimate than judges to settle them.

The inadequacy of reasonableness and the minimum core invites to explore alternative innovative solutions for the adjudication of socioeconomic rights. Here are two suggestions. First, the employment of an intermediate standard, like proportionality analysis. However, there is not an appropriate account yet, on how proportionality can be applied for determining if an absolute or a relative omission violates a socioeconomic right and, if it were the case, what the adequate remedy would be. The second suggestion is acknowledging that courts are not the best institutions to protect these rights and that we should look for institutional alternatives like, for instance, Ackerman’s “Distributive Justice Branch”.[12] Exploring these possibilities, and finding a plausible way to adjudicate socioeconomic rights, is perhaps the most pressing need in the constitutional theory of the global south.