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Constitutional ESRsin theD eveloping WorldP reliminary ReportDraft for Comment
Economicand Social Rightsin Developing Country Constitutions
Preliminary Report
on the TIESR DatasetDraft for Comment
January 26, 2011
Courtney JungUniversity of Toronto
Evan Rosevear
University of Toronto
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ExecutiveSummaryThe TIESR Dataset measures the presence or absence of seventeen separate economicand social rights in 122 written constitutions in the developing world as well as their
constitutional status as justiciable or aspirational. This report identifies the most
important findings of the dataset, based on a preliminary analysis that includes relative
proportions, bivariate correlations, and cross-tabulations derived from the justiciable-aspirational-absent categorization as well as a regional disaggregation.
The report focuses on four principal aspects of the research:
The relative standing of individual economic and social rights; The regional treatment of economic and social rights;
Several findings and conclusions are drawn from this analysis:
The right to property is the most commonly enshrined (95.9%) and most commonlyjusticiable (59.0%) economic and social right.
The four most commonly enshrined social rights are education (87.7%), health (80.3%),social security (77.9%), and child protection (74.6%).
The four least common social rights are housing (40.2%), land (23.8%), food and water(24.6%), and development (9.1%). These four are particularly rare outside of Latin
America.
Among economic rights, the right to form or join a trade union is the most widelyenshrined (77.9%). The rights to social security by virtue of employment (59.0%), strike
(54.9%), and a fair wage (49.2%) are present in roughly half of all developing country
constitutions.
Economic and social rights are most present in Latin America and East- Central Europe,notably less so in Sub-Saharan Africa, and least present in Asia and the Arab States.
Most regions demonstrate a similar pattern with respect to the relative prevalence ofparticular rights and their status as justiciable or aspirational. Asian constitutions are
significantly less likely to include economic rights, especially the right to form or join a
trade union and to strike, than those of other regions.
Except for the right to form or join a trade union, the six economic rights are all less
(education, health, child protection, and social security). On the other hand, the right to
form or join a trade union is the second most commonly justiciable economic and social
right, followed by the right to education.
Approximately two- all of the economic and social rights they recognize as either aspirational or justiciable.
The remaining one-third include a mixture of justiciable and aspirational economic and
social rights. Therefore it seems reasonable to think of Justiciable, Aspirational, and
most prevalent in Latin America and the Aspirational model is most common in the Arab
States.
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Tableof Contents
1 The TIESR Dataset ..................................................................................................... 11.1 Case Selection and Characteristics ....................................................................... 21.2 Coding and Classification .................................................................................... 31.3 Regional Disaggregation and Comparability ....................................................... 5
2 The Frequency and Distribution of ESRs ................................................................... 82.1 The Right to Property ........................................................................................... 92.2 Economic Rights ................................................................................................ 10
2.2.1 The Right to a Fair Wage ............................................................................ 112.2.2 The Right to Form or Join a Trade Union ................................................... 122.2.3 The Right to Strike ...................................................................................... 132.2.4 The Right to Rest or Leisure ....................................................................... 142.2.5 The Right to Healthy Working Conditions ................................................. 142.2.6 The Right to Social Security Related to Employment ................................ 15
2.3 Social Rights ...................................................................................................... 162.3.1 The (General) Right to Social Security ....................................................... 162.3.2 The Right to Child Protection ..................................................................... 172.3.3 The Right to Health Care ............................................................................ 182.3.4
The Right to Access to Land ....................................................................... 19
2.3.5 The Right to Housing .................................................................................. 202.3.6 The Right to Food and Water ...................................................................... 202.3.7 The Right to Education ............................................................................... 212.3.8 The Right to Development. ......................................................................... 222.3.9 The Right to a Healthy Environment .......................................................... 222.3.10 Duty of the State to Protect the Environment ............................................. 23
2.4 ICESCR Status ................................................................................................... 243 Regional Treatment of Rights ................................................................................... 26
3.1 The Arab States .................................................................................................. 273.2 Asia ..................................................................................................................... 283.3 East-Central Europe ........................................................................................... 303.4 Latin America ..................................................................................................... 313.5 Sub-Saharan Africa ............................................................................................ 32
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4 ................................................................................. 345 Analysis: Justiciable, Aspirational, and Mixed Constitutional Models .................... 406 Conclusion ................................................................................................................ 437 Works Cited ............................................................................................................... 448 Appendices ................................................................................................................ 48
8.1 Composition of Regions ..................................................................................... 488.2 Bivariate Correlations ........................................................................................ 498.3 The Uniformity of Rights Regimes .................................................................... 508.4 Frequency of ESRs by Category ........................................................................ 51
8.4.1 Global .......................................................................................................... 518.4.2 Arab States .................................................................................................. 518.4.3 Asia ............................................................................................................. 528.4.4 Eastern and Central Europe ........................................................................ 528.4.5 Latin America .............................................................................................. 538.4.6 Sub-Saharan Africa ..................................................................................... 53
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Abbreviationsand AcronymsCPRO The right to child protection
D E V T The right to development
E C E Eastern and Central Europe
EDUC The right to education
ENVP Duty of the state to protect the environment
E Rs Economic Rights
FRWG; TRDU; STRK, LEIS; HWRK; and, SSEM
ESRs Economic and Social Rights
FOWA The right to food and water
FRWG The right to a fair wage
H E N V The right to a healthy environment
HLTH The right to healthcare
HOUS The right to housing
H W R K The right to healthy working conditionsICESCR International Covenanton Economic,Social and Cultural Rights
ICPCR International Covenanton Political and Civil Rights
L A M Latin America
LAND The right to access to land
LEIS The right to rest or leisure
NSRs Non-Standard Social Rights:
LAND; HOUS; FOWA; DEVT; HENV; and, ENVP
PROP The right to private property
SRs Social Rights
SSAF Sub-Saharan AfricaSSEC The (general) right to social security
SSEM The right to social security derived from employment
SSRs Standard Social Rights:
SSEC; CPRO; HLTH; and EDUC
STRK The right to strike
TIESR Toronto Initiative for Economic and Social Rights
TRDU
UDHR Universal Declaration ofHuman Rights
UNDP United Nations Development Program
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1 TheT I ESR Dataset1Economic and social rights (ESRs) guarantee rights to unionize, strike, and fair wages,
and they promise access to housing, healthcare, education, and social security. Along
with civil and political rights, they are enshrined in the Universal Declaration of Human
Rights,2 and they bind states signatory to the International Covenant on Economic,
Social, and Cultural Rights.3 In addition, many new democracies have included
economic and social rights in their constitutions, committing their governments, at least
rhetorically, to the progressive realization of minimum standards of social welfare.
The Toronto Initiative for Economic and Social Rights (TIESR) Dataset contains
quantitative information on the constitutional status of economic and social rights in
developing countries. This dataset measures the presence or absence of seventeen
separate economic and social rights in 122 constitutions as well as their constitutional
From this coding, a threefold measure of rights is created for each ofthe variablesabsent, aspirational, or justiciable. Data on the constitutional commitment
to a free market, expropriation, and ratification of the ICESCR were also captured.4
At least some economic and social rights now appear in more than 95% of developing
country constitutions, and a majority of constitutions include a wide range of such rights.
In more than one third of constitutions, those ESRs that are included in the constitution
are accorded co-equal constitutional status with civil and political rights. Another third
identify most economic and social rights as aspirational principles. The remaining third
include a mix of aspirational and justiciable rights. Our data also reveal which rights are
most, and least, often included in developing country constitutions.
Whether particular rights are practically justiciable enforceable through the domestic
court system and subject to legal remedy depends in part on factors beyond the
1The authors gratefully acknowledge the advice, assistance, and feedback offered by the members of the
TIESR Advisory Board, and by our partners: The Comparative Constitutions Project; The Center for
Economic and Social Rights; and The CIRI Human Rights Data Project. This research was funded by a
grant from the Social Sciences and Humanities Research Council of Canada.2United Nations, The Universal Declaration of Human Rights(United Nations, December 10, 1948),
http://www.un.org/Overview/rights.html.3
International Covenanton Economic,Social and Cultural Rights, 1966,http://www.unhchr.ch/html/menu3/b/a_cescr.htm.4The TIESR dataset was independently coded by two researchers; disagreements between the coders were
reconciled by a separate panel. We nevertheless request that users help to improve the data's reliability by
reporting mistakes and/or differences of interpretation by sending an email [email protected]
expect to release a new version of this dataset, including 2010 constitutions and the former Soviet
Republics, in summer 2011. A detailed description of coding procedures is outlined in: Courtney Jung,
Coding Manual: A Description of the Methods and Decisions Used to Build a Cross-National Dataset of
Economic and Social Rights in Developing Country Constitutions,November 9, 2010,
http://www.tiesr.org/Data/coding%20manual%20nov%209.pdf.
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constitution alone.5 Nevertheless, constitutional texts offer a variety of insights regarding
the status of ESRs.
Even if constitutionally entrenched justiciability does not guarantee legal remedy, it does
normally establish where economic and social rights have formally co-equal status with
civil and political rights in the constitution. Since ESRs have long been considered
subordinate to civil and political rights, their comparative standing within a constitution
may tell us as much about their relative contemporary status as measuring their mere
presence or absence. Data regarding the texts of constitutions is a necessary, but not
sufficien
institutional factors on such outcomes.
1.1 CaseSelection and CharacteristicsThis dataset includes almost all MDCs and LDCs with written constitutions as defined byUnited Nations Human Development Project but it also includes some states located in
the global south with very high levels of GNP (e.g. Bahrain). It does not include most of
the small island nations (e.g. Nevis and St. Kitts), and it does not include most of the
former Soviet Republics. It also excludes several countries in which constitutions are
currently under revision.6 We expect to release an updated version of the dataset that
includes these cases in 2011.
82.0% of the constitutions in the dataset were written or significantly amended after
1974, and 73.0% of them after 1989. They are new constitutions that represent
contemporary norms of constitution-drafting. They may also be said to reflectcontemporary beliefs about what belongs in constitutions, and the mechanisms (or lack
thereof) necessary for their protection. Whether the beliefs they reflect are domestic,
those of an international community of experts, those of international financial
institutions, or those of more powerful states, is an important question that could be
analyzed in light of the dataset.
transitions.7 Like third wave transitions, third wave constitutions
primarily at uncovering and analyzing such traits and patterns.
5See, e.g. Charles R. Epp, TheRightsRevolution: Lawyers,Activists,and SupremeCourtsin ComparativePerspective(Chicago: University of Chicago Press, 1998); Gerald N. Rosenberg, TheHollow Hope: CanCourtsBr ing AboutSocial Change?, 2nd ed. (Chicago: University of Chicago Press, 2008).6A complete listing of countries and regional categorizations is included in section 8.1.7Samuel Huntington, TheThird Wave: Democratization in theLateTwentieth Century(Norman, OK:University of Oklahoma, 1991).
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1.2 Coding and ClassificationThe survey instrument
8used to collect the TIESR dataset was adapted from the template
code the constitutions of the countries of the world.9Relative to the CCP, the aims of the
TIESR project are quite limited; it codes only ESRs, in extant constitutions, in developing
countries. It is more expansive, however, in that it also attempts to ascertain the
constitutional status of such rightsas justiciable or aspirational.10
Two questions in the survey instrument ask researchers to identify the type of protection
covering ESRs as a discrete category of rights:
i. Are ESRs included as justiciable fundamental rights?ii. Are ESRs included as directive principles of state policy?11
We define justiciability as a condition under which particular rights are enforceablethrough the domestic court system and subject to legal remedy. Courtis defines
complaint before an impartial body, and request adequate remedies or redress if a
12
Mapulanga-Hulston notes that the key factors in
determination in judicial proceedings, whether it vests an enforceable right in the
individual, and whether it lends itself to sufficiently specific obligations on the part of
13
These specifications expand the definition of justiciability used in this
investigation.
Although justiciability depends in part on factors beyond the constitution alone,14
constitutions nevertheless enshrine different rights differently, often explicitly as
fundamental, justiciable, aspirational, or directive. The researchers engaged in the
8Jung, Coding Manual: A Description of the Methods and Decisions Used to Build a Cross-National
Dataset of Economic and Social Rights in Developing Country Constitutions.9Zachary Elkins, Tom Ginsburg, and James Melton, TheComparativeConstitutionsProject: A Cross-National Historical DatasetofWritten Constitutions, Survey Instrument, July 22, 2008,http://www.comparativeconstitutionsproject.org/files/surveyinstrument.pdf.10See also, David S. Law and Mila Versteeg, The Evolution and Ideology of Global Constitutionalism,
California Law Review99 (2011), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1643628.11 speaking, synonymous in all cases, it has not been possible to identify reliable differences in the way they
are used across jurisdictions.12Christian Courtis, The Right to Food as a Justiciable Right: Challenges and Strategies,in Max PlanckYearbookofUnited NationsLaw, ed. Armin von Bogdandy and Rdiger Wolfrum, vol. 11, 2007, 318.13Jackbeth K Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights,
International Journal ofHuman Rights6, no. 4 (2002): 36.14See, e.g. Rosenberg, TheHollow Hope: Can CourtsBr ing AboutSocial C hange?; Epp, TheRightsRevolution: Lawyers,Activists,and SupremeCourtsin ComparativePerspective.
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collection of the TIESR data were concerned with each of these factors when determining
whether ESRs were justiciable in a given constitution. In particular, they were concerned
with three primary elements:
i. The Review Mechanism: while Mapulanga-Hulston is careful to
15
noting that the reviewmechanism need not be judicia l, ESRs were coded as justiciable onlywhen a constitution included a mechanism for judicial review.
Constitutions that enshrine justiciable ESRs usually have provisions forpeople to make claims in court to demand the review of alleged human
rights violations.
ii. The Standing of Individuals in the Review Process: many constitutionsstate, implicitly or explicitly, that individuals have the power to initiate
judicial review. This indicates the presence of justiciable rights. Where the
standing of individuals in the review process was unclear, or did not exist,
iii. The Language and Context of the Relevant Clauses: researchers tried todetermine what kind of entitlements and obligations the constitutionconferred on the people and the state in the realm of ESR based on what
section of the constitution the right was found in and how it was described.
Researchers deliberated at length over the significance of such differencesin language, especially with respect to obligations of the state versus rights
of the people.
These questions attempt to simplify the process of identifying whether ESRs, as a general
category of rights, are justiciable or aspirational. However, different rights are oftenprotected differently. Moreover, although ESRs are often treated in the literature as a
discrete category of rights, constitutions do not always enshrine ESRs separately from
other constitutional rights such as civil and political rights. Nor do they always offer the
same protection to each right. Each right was therefore analyzed separately, and coded
according to the trichotomous categorization outlined below.16
15Mapulanga-Hulston, Examining the Justiciability of Economic, Social and Cultural Rights,36-7.16
Constitutional clauses regarding expropriation (EXPR) and free markets (FMKT) were also coded in thedataset. However, both of these variables were coded dichotomously, as either absent or present. EXPR
was not included in the current analysis as it was deemed to be a guarantee accruing to the state rather than
accruing to individuals and as such did not fit with the general theme of the analysis which relates to rights
accruing to individuals in national constitutions. Similarly, it was felt that FMKT did not represent a
specific right accruing to individuals, but rather described a particular form of economic organization and
as such also did not fit with the focus of the current analysis. Further details regarding the coding criteria
can be found in the survey instrument. (Jung, Coding Manual: A Description of the Methods and
Decisions Used to Build a Cross-National Dataset of Economic and Social Rights in Developing Country
Constitutions.).
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Coding Values
Value Label Criteria
2
The government can be taken to court for failing to guarantee theeconomic and social rights promised in the constitution.
Citizens have legal recourse to ensure the fulfillment of theirconstitutional rights; usually a mechanism for judicial review enshrinedin the constitution.
1
Enumeration of constitutional rights intended to guide state policyand/or express ideals, but they are not binding. Directs government to
take social welfare into account when making policy decisions, but
creates no obligation to do so.
Citizens do not have legal recourse to ensure the fulfillment of theirconstitutional rights.
ESRs are not considered fundamental rights.0
The item is not mentioned in the constitution, either as a justiciable oraspirational right, or as a directive principle.
1.3 Regional Disaggregation and ComparabilityIn an attempt to identify patterns of internal variation within the data, we disaggregated
our universe of cases into five regional categories: Latin America (LAM), Sub-Saharan
Africa (SSAF), East-Central Europe (ECE), Arab States (AS), and Asia (A). Our goal was
to find out if there were identifiable regional patterns of ESR incorporation or, put
another way, if regional proximity accounted for a significant proportion of the variation
in ESR incorporation into constitutions.
As could possibly have been expected, some of these regions are very coherent and
demo
and AS); while others might be better disaggregated into two regions (A); and SSAF
exhibits almost as much internal variation as the dataset as a whole.17
The Arab States includes twenty-one constitutions. Most of them are new, and most
include Sharia law.
Fourteen Arab State constitutions (66.6%) have been adopted orsignificantly amended since 1974, thirteen of those (61.9%) since 1989.
All of the countries in this region except Turkey employ some form of common law.
18
17Within Asia, the differences between South and East Asia were occasionally marked, but these two
potential regions were aggregated because each alone included insufficient cases to allow for statistical
analysis.18For present purpose an autonomous legal system which is of a religious
nature and predominantly based on the Koran. In a number of countries of Muslim tradition, it tends to be
limited to the laws relating to personal status, although personal s
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Asia includes twenty-
e range of legal traditions.
Thirteen Asian constitutions (54.1%) were adopted after 1974, ten of those(41.6%) since 1989.
19legal or constitutional tradition,20a number of countries inSoutheast Asia, including Bangladesh, Sri Lanka, Nepal, and Pakistan,
commitment to democracy and norms of equality and non-
through the constitutional entrenchment of ESRs.21
those East Asian countries with new constitutions have enshrined ESRs.
22
East-Central Europeincludes eleven constitutions. Almost all of them are new, written
in the context of a transition from communism.
With the exception of Hungary (1949), all of the ECE constitutions werewritten within a few years of each other, in the context of post-1989
democratic transitions.
There appears to be a common, though far from uniform, constitutionalapproach and model of ESR incorporation, influenced on the one hand bycommunist era ideals about the social welfare responsibilities of states, and
on the other by a commitment to free-market reform.23
The constitution of Bosnia-Herzegovina, written in 1995, is the consistentoutlier in this group, with almost no ESRs.
The Serbian constitution of 2006, on the other hand, includes a wide rangeof justiciable economic and social rights.
(Louis Perret et al., World Legal Systems,JuriGlobeResearch Group, 2008,http://www.juriglobe.ca/eng/index.php.)19Tom Ginsburg, Judicial Review in New Democracies: Constitutional Courtsin Asian Cases(New York:Cambridge University Press, 2003), 11-15.20
domination, and Islam have played important roles in differentially shaping the development of national
legal systems in Asia, highlighting at leas -
Germanic law; and, socialist law. (Jean-Pierre Cabestan, Constitutionalism and Western Legal Traditions
in Human Rights in Asian Legal Systems: With a Special Focus on Chinese Legal Systems,in OneCountry,Two Systems,ThreeLegal Orders- PerspectivesofEvolution, ed. Jorge Costa Oliveira and PauloCardinal (Berlin, Heidelberg: Springer Berlin Heidelberg, 2009),
http://www.springerlink.com/content/n5x006051x71m513/.).21Iain Byrne and Sara Hossain, South Asia: Economic and Social Rights Case Law of Bangladesh, Nepal,
Pakistan, and Sri Lanka,in Social RightsJurisprudence: Emerging Trendsin International andComparativeLaw, ed. Malcolm Langford (Cambridge: Cambridge University Press, 2008), 125-26.22Peter L. Berger, An East Asian Development Model?,in In Search ofan EastAsian DevelopmentModel, ed. Peter L. Berger and H. H. Michael Hsiao (New Brunswick, N.J.: Transaction Books, 1988), 3-23.23Wojciech Sadurski, PostcommunistC onstitutional Courtsin Search ofPolitical Legitimacy, EUIWorking Paper; LAW (Florence: European University Institute, 2001), 40,
http://128.252.251.212/harris/conferences/constitutionalconf/Constitutional_Courts_Legitimacy.pdf.
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Latin Amer icaincludes twenty-two constitutions. Almost all of them are new, and Latin
America has a common legal and constitutional tradition.
Twenty of the Latin American constitutions (90.9%) have beenpromulgated or significantly amended since 1989.
The Latin American region has a common constitutional and human rightstradition reaching back long before the recent wave of constitution-making in particular with respect to ESRs and the provision for
amparo.24
Twenty of the Latin American legal systems are civil law; Belize iscommon law; and Guyana is mixed civil and common law.
25
Sub-Saharan Africa includes forty-four constitutions. Almost all of the African
constitutions are new, but SSAF has no common legal or constitutional tradition.
Forty-one of the Sub-Saharan African constitutions (93.1%) have beenwritten or substantially amended since 1974, mostly in the context of
democratic transition.
SSAF has no common legal or constitutional tradition, and has a widerange of colonial legacies.
There is no discernible regional pattern with regard to ESR incorporation.
24Paolo G. Carozza, From Conquest to Constitutions: Retrieving a Latin American Tradition of the Idea of
Human Rights25 (2003): 281-313.; Allan R. Brewer-Carias, Constitutional Protection ofHuman Rightsin Latin America: A ComparativeStudy ofAmparo Proceedings(Cambridge: Cambridge University Press,2009).25Perret et al., World Legal Systems.
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2 TheF requency and Distr ibution of ESRs
In general, ESRs are widely present in developing country constitutions. Nevertheless,
there is significant variation in the relative prevalence of particular rights. Some are quite
commonly enshrined in such constitutions, and others are quite unusual. The most
common ESRs are:
1. Property (95.9%)2. Education (87.7%)3. Health (80.3%)
4. Social Security (77.9%)5. Trade Union (77.9%)6. Child Protection (74.6%)
The least common ESRs are:
1. Healthy Work Environment (41.8%)2. Housing (40.2%)3. Food and Water (24.6%)
4. Land (23.8%)5. Development (9.1%)
0
10
20
30
40
50
60
70
80
90
100
PresenceofJusticiableand Aspirational ESRs(%)
Justiciable Aspirational
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rights, it is usually justiciable. Nevertheless, if the purpose of this research is to analyze
the constitutionalization of ESRs in the context of neoliberal reform, it is clearly
instructive to compare the relative prevalence and status of PROP with that of (other)
ESRs. Also, if even some analysts now insist that a right to property is an ESR, it is
useful to be able to say something about the right to property in developing country
constitutions.
The right to property is present in 95.9% of all developing country constitutions,
justiciable in 59.0% and aspirational in 36.9%. In both LAM and SSAF it is present in all
constitutions, and it is present in at least 90.0% of constitutions in the other three regions.
The right is most commonly justiciable in LAM (81.8%) where it is aspirational in
Colombia, Cuba, the Dominican Republic and Haiti and justiciable in all other
constitutions in the region. In SSAF the right is justiciable in nearly three-quarters of
constitutions and aspirational in the remaining quarter. In ECE, it is absent only in
Slovenia, aspirational in Bosnia and Herzegovina, Bulgaria, and Croatia, and justiciable
in the rest. With the exception of Singapore and Sri Lanka, which do not enshrine a right
to property, constitutions in Asia are roughly evenly divided between justiciable (45.8%)
and aspirational (41.7%). As the only region in which the right is more likely to be
aspirational than justiciable, the Arab States is a notable outlier. In this region the right is
absent in Syria, justiciable in Djibouti, Iran, Sudan, and Turkey, and aspirational in the
remaining 76.2%.
2.2 EconomicRightsThe diverse labels and definitions assigned to the categories of rights with which we are
presently concerned provides no small room for terminological confusion. Cognizant ofthe fa
the same selection of rights, and that
number of different groupings of rights,27
we have opted for what seems to be a relatively
intuitive distinction between economic rights on the one hand and social rights on the
other. For the purposes of the present analysis we have distinguished between economic
those rights, such as the right to strike, to a fair wage, or to a healthy work environment,
that accrue to individuals based on their status as workers, and persist only so long as
tect social well-being,
beyond the workplace, and are accorded to individuals on the basis of citizenship or legal
immigrant status rather than employment.
In general, constitutions in LAM and ECE tend to have a relatively high incidence of
economic rights, the Arab States and Asia have a low incidence, and SSAF is in between.
27Grainne de Burca, The Future of Social Rights Protection in Europe,in Social RightsIn Europe, ed.Grainne de Burca and Bruno de Witte (Oxford, UK: Oxford University Press, 2005), 4.
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Economic rights are marginally more common in Asia than they are in the Arab States,
although this pattern is reversed with respect to TRDU and STRK, which are more
prevalent in the Arab States than in Asia.
LAM constitutions have the highest incidence of justiciable economic rights, followed by
ECE. Justiciable economic rights are less common in SSAF, and rare in Asia and the ArabStates.
2.2.1 TheRight to a Fair Wage
Constitutions may contain various wage-related guarantees, including rights to a
mmensurate with skill
considered reflective
found very commonly in constitutions, was not coded as a right to a fair wage, because it
seemed to more accurately reflect a commitment to equality or non-discrimination, in
particular as between different population groups such as men and women. Coding forthis right was contingent on a clear reference to the notion that people have the right to
payment that is just or fair based on the services rendered. In the developing world, the
right to a fair wage is present in half of all constitutions (49.2%) and is identified as
justiciable in just over a quarter of all constitutions (26.2%).
As with economic rights more generally, Latin America and East-Central Europe have a
relatively higher incidence of the right to a fair wage than other regions. In LAM, the
right is absent only in Belize and the Dominican Republic. In ECE, it is absent in
Albania, Bosnia Herzegovina, and Slovenia. Also in line with the general trend, while the
relative proportion of constitutions containing the right in LAM and ECE are comparable(90.9% and 72.7% respectively), in ECE the right is nearly twice as likely to be
aspirational while in LAM the right is four times more likely to be justiciable.
In the Arab states, the right to a fair wage is justiciable in Turkey and aspirational in
Egypt, Jordan, Oman, and Syria. In Asia it is absent in the majority of cases (70.8%) and
aspirational in Bangladesh, Bhutan, China, India, Indonesia, North Korea, and Thailand.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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There is no instance of a justiciable right to fair wage in Asia. As with most other
economic rights, SSAF contains a lower proportion of the right than ECE and LAM but a
greater proportion than Asia and the Arab States. There is also substantial internal
variation in the region.
2.2.2 TheRight to Form or Join a TradeUnion
The right to form or join a trade union indicates that workers have the right to organize
collectively to bargain with management for their rights as workers. In order to be
positively coded, a constitution must explicitly state a right to form or join a trade union,
of workers, which were generally treated as equivalent to trade unions.
The right to join a union is one of the most commonly enshrined rights in developing
country constitutions. Constitutions sometimes include TRDU among economic and
alongside, or as an extension of, the civil right to freedom of association. Like mostESRs, TRDU is most common in LAM (95.5%) and ECE (90.9%). In LAM it is absent
only in Cuba, and in ECE only in Bosnia Herzegovina. However, as with the right to
strike, this right is more prevalent in the Arab States than in Asia, a reversal of the general
pattern with respect to economic rights. However, when present, the right is much more
likely to be justiciable in Asia; among the eleven constitutions containing the right, it is
aspirational only in South Korea. SSAF also exhibits a higher than normal incidence of
both this right and the right to strike. It is absent only in the Ivory Coast, Equatorial
Guinea, Eritrea, and Tanzania.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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2.2.3 TheRight to Str ike
The right to strike is also commonly expressed as a right to withhold labor. A right to
strike was often limited with respect to particular occupations or sectors. In cases with
broad limits a note was made, but the right was still coded in line with the trichotomous
criteria employed throughout.
Proportionately, the right to strike is most common in ECE, absent only in Bosnia
Herzegovina. When present, it is evenly distributed between aspirational and justiciable.
The right to strike is most likely to be justiciable in LAM: it is absent in Belize, Cuba,
and Guyana; aspirational in Colombia, the Dominican Republic, Haiti, and Mexico; and
justiciable in the other fifteen constitutions.
Despite a relatively high incidence of the justiciable right to form or join a trade union,
the right to strike is uncommon in Asia. In that region it is justiciable in Cambodia, East
Timor, and the Philippines, aspirational in South Korea, and absent in the other twenty
constitutions (83.3%). In the Arab States the incidence of the right to strike is also notably
lower than the right to form or join a trade union. However, unlike in Asia where there is
a notable difference in the balance of aspirational and justiciable variants of the rights to
join a union and to strike in addition to the variation in their presence or absence, in the
Arab States the justiciable-aspirational balance is roughly the same for TRDU and STRK.
It is possible that some constitutions treat a right to strike as implicit in a right to form or
join a trade union. Interestingly, the constitutions of the Ivory Coast, Equatorial Guinea,
and Mauritania all contain aspirational rights to strike but do not contain the right to form
a union. This combination does not occur elsewhere.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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2.2.4 TheRight to Rest or Leisure
A right to rest or leisure is indicated by any language that explicitly protects against over-
work, or entitles workers to some sort of reprieve from work such as vacation,
consecutive or periodic limitations on working hours, overtime bonuses, or leaves with
pay. Although constitutions sometimes expressed a commitment to ensuring that the
elderly or sick have a right to rest, we recognized only a right to rest with respect to
workers.
The right to leisure is most common in LAM, absent only in Belize, Bolivia, Dominican
Republic, and
ECE, where present, the right is somewhat more likely to be justiciable than aspirational.
In Asia, the right is present in ten constitutions (41.7%), but is justiciable in only two
(8.3%): East Timor and Mongolia. In SSAF, the right to leisure is less frequent than it is
in Asia, but more likely to be justiciable. The right is present in one quarter of the Arab
States, justiciable in Iran and Turkey and aspirational in Algeria, Jordan, and Syria.
2.2.5 TheRight to Healthy Work ing Conditions
A constitution was coded positively if it contained language explicitly articulating the
right of workers to a safe or healthy work environment.
This right is the least common economic right and its regional distribution is roughly
similar to overall economic rights trends. In LAM, the right is present in just under two-
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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thirds of constitutions. When present it is justiciable in all but Belize, Cuba, and Mexico.
The right is equally prevalent in ECE, but much more likely to be aspirational than
justiciable. Although much less frequent, Asia and SSAF also exhibit roughly similar
overall incidences of the right, but the justiciable/aspirational proportions are inverted
with nearly twice as many justiciable incidences in SSAF, and twice as many aspirational
in Asia. The right is only present in three Arab States: Algeria, Jordan, and Turkey, and it
is justiciable only in Turkey.
2.2.6 TheR ight to Social Security Related to Employment
Social security related to employment covers a wide range of benefits accruing to
workers alone, including maternity leave, sick leave, and employer-funded pension. A
positive coding required language that clearly indicated a distinction, either in benefit
level or eligibi
and for social security contingent on employment (past or present). In constitutions where
a right to assistance in the case of illness, unemployment, maternity leave, or similar wasarticulated, it was understood as providing a right to social security related to
employment. We did not take into account the level of protection or sufficiency of the
benefits provided. It should also be noted that the relatively high frequency of this right
may be due to the fact that one of three or more specific entitlements could be counted as
an incidence of this right.
This right is extremely common in both ECE, where it is absent in only Bosnia
Herzegovina, and LAM, where only Bolivia does not entrench it. Among economic
rights, only the right to join a trade union exhibits a comparable level of frequency in the
Arab States, in which it is slightly less common than the right to join a trade union. Theright is quite common in Asia, occurring in two-thirds of all constitutions. Interestingly,
while a few countries contain an aspirational right to employment-contingent social
security without also entrenching a right to join a union, only Iran includes a justiciable
right to employment-contingent social security with no right to join a union. Contrary to
the regional trend in economic rights, both the justiciable and aspirational variant of the
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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right are unusual in SSAF where it is justiciable in only nine of forty-four countries and
aspirational in a further five.
2.3 Social RightsSocial rights are clearly divided into two types on the basis of their frequency. The more
(EDUC), healthcare (HLTH), non-employment contingent social security (SSEC, and
-
rights to access to land (LAND), to housing (HOUS), to food and water (FOWA),
development (DEVT), to a healthy environment (HENV), and to environmental
protection (ENVP).
Each of the standard social rights (SSRs) occurs in between 74.6% and 87.7% of cases
and 63.1% of constitutions in the dataset contain all four SSRs. These rights are most
common in ECE, but are more frequently justiciable in LAM, with relatively high
proportions in all regions. They occur the least frequently in the Arab States where the
average constitution contains 2.7 standard social rights, and five of the twenty-one
constitutions (23.8%) contain none. EDUC is present in 100.0% of cases in both ECE and
LAM.
Non-standard social rights (NSRs) exhibit greater regional variation than standard social
rights. Overall, ninety-six constitutions in the dataset (78.7%) contain at least one NSR,
but only two constitutions contain all six, Nicaragua and Ethiopia, and less than half
contain more than two. In terms of regional variation, there is a substantially higher
incidence of non-standard social rights in LAM, where the median constitution containsfour NSRs, than elsewhere particularly the Arab States, where the median constitution
contains no NSRs and the average constitution 0.9.
2.3.1 The(Genera l) Right to Social Security
assistance for old-age, welfare, long-term disability, and other similar entitlements, so
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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long as these were not contingent on employment status. Like SSEM, SSEC may be
common because this category includes four or more specific entitlements.
Along with the rights to child protection (74.6%), healthcare (80.3%), and education
(87.7%) the generalized right to social security (77.9%) is among the most common
social rights. This trend is evident in the relatively high incidence of these rights acrossall regions. The generalized right to social security is most prevalent in ECE, present in
all but Bosnia Herzegovina. In Asia it is present in all but Brunei, Laos, Malaysia, and
Singapore. The right is proportionately less common in LAM, absent in Argentina,
Belize, and Chile, but is more frequently justiciable than in the other regions. Greater
justiciability in LAM is a trend that applies to all four of the standard social rights. The
right is present in more than two-thirds of both the Arab States and SSAF, but is more
commonly justiciable in SSAF.
2.3.2 TheRight to Child Protection
Children may be protected with respect to civil rights or economic and social rights. We
coded positively only when constitutions specifically identified a commitment to (some
of) the economic and social rights of children. Which specific economic and social rights
articulated
on other contextual cues, such as where in the constitution they appeared. In
constitutions that did not guarantee economic and social rights for children, but did
mention that all children had equal rights regardless of their filiation (whether they were
born in or out of wedlock), the right was coded as absent.
As with the other standard social rights, the incidence of this type of right is high across
all regions. It is absent in only Bosnia Herzegovina in ECE, and Argentina, Belize, Chile,
and the Dominican Republic in LAM. In LAM, however, it is justiciable in all other
constitutions except those of Cuba, Guyana, and Haiti where it is aspirational. It is
present in more than three-quarters of constitutions in SSAF (77.3%) and more than two-
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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thirds in Asia (70.8%), but notably less so in the Arab States, where it occurs the least
-one constitutions. This is
also the lowest incidence of any of the four standard social rights in any of the regions.
2.3.3 TheRight to Health Care
The right to health care, health, health protection, and medical services were considered
synonyms. Constitutions were coded positively if they identified the provision of
healthcare as a duty of the state, outlined procedures for the state to care for the health of
the population, or included a requirement or responsibility to undertake policies aimed at
providing healthcare. As with education, the right to equal access was not considered to
Proportionally, the right to health is equally prevalent in ECE, absent in Bosnia and
Herzegovina, and LAM, absent in Argentina and Costa Rica. In line with the trend forstandard social rights, it is slightly more likely to be justiciable in LAM. The right is
nearly as common in Asia as it is in ECE and LAM, present in twenty of twenty-four
cases, absent only in Brunei, Malaysia, Singapore, and Sri Lanka. It is also present in
three-quarters of cases in SSAF and nearly so in Asia. However, the Arab States, Asia,
and SSAF, all exhibit relatively low levels of justiciability with regard to this right. In the
Arab States it is justiciable only in Iran, Sudan, and Turkey.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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2.3.4 TheR ight to Accessto Land
Sometimes particular groups (e.g. farmers, indigenous people) were guaranteed access to
land, but in most cases in which land was mentioned, the constitution made provisions for
increase access to land for its citizens, the case was coded positively for PROP but not for
LAND. This right was understood to imply that access to land requires some positive
action on the part of the state, beyond the (negative) protection for private property.
Within LAM the right to land is present in fifteen of twenty-two constitutions, and
justiciable in ten of those. In LAM, constitutions most commonly mention a right to land
in connection with the rights of indigenous peoples. Outside of LAM, this right is quite
rare. It is not present at all in ECE and only present in the Arab States in Bahrain
(aspirationally) and Turkey (justiciably). In SSAF, the right is present in six of forty-four
constitutions, aspirational in Lesotho, Mozambique, and Swaziland, and justiciable inEthiopia, South Africa, and Zimbabwe. Proportionately, the right is more common in Asia
(25.0%) where it is aspirationally present in Afghanistan, Nepal, South Korea, Taiwan,
and Thailand, and justiciable in the Philippines.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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2.3.5 TheRight to Housing
This right was commonly articulated bot
provide adequate housing, or to undertake policies aimed at providing adequate housing.
In cases where the constitution only provided the right to a subset of the population (e.g.
women or workers) the right was coded positively, but the restriction was noted.
As with other non-standard social rights, the right to housing is common only in LAM
(81.8%), where it is also most likely to be justiciable (59.1%). Only Belize, Chile, El
Salvador, and Peru do not include a right to housing. Outside LAM, the right is more
common than any other non-standard social rights, excepting the two rights relating to the
environment (HENV and ENVP). In the Arab States it is justiciable in Iran and Turkey; in
Asia it is justiciable in East Timor and Philippines; in ECE it is justiciable in Poland; and
in SSAF it is justiciable in Cape Verde, the Democratic Republic of the Congo, Malawi,
Sao Tome and Principe, Seychelles, and South Africa. It is present in some form in morethan two-fifths (41.7%) of Asia.
2.3.6 TheRight to Food and Water
Constitutions that identified the provision or increase of access to food and/or water as a
duty of the state, or simply enshrined a right to food and/or water, were considered to
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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Like the right to access land, this basic subsistence right is fairly commonly enshrined
only in LAM where it is present in 63.6% of constitutions, justiciable in nearly half of all
constitutions, and aspirational in an additional four: Colombia, Cuba, the Dominican
Republic, and Haiti. This right is not found in any ECE constitution. In the Arab States it
is present only in Iran, where it is justiciable. In SSAF, it is present in 20.5% of
constitutions, justiciable in the Democratic Republic of the Congo, Malawi, and South
Africa, and aspirational in Ethiopia, Namibia, Nigeria, the Gambia, Uganda, and Zambia.
In Asia, it is present in 25.0% of constitutions, justiciable in Nepal and aspirational in
Bangladesh, India, North Korea, Pakistan, and Sri Lanka.
2.3.7 TheRight to Education
Constitutions include both positive and negative rights to education. The former implies
a state obligation to provide education, whereas the latter allows citizens the freedom to
pursue the education of their choice. Our dataset only includes education when it is
framed as a positive right.
The right to education is present in every constitution in LAM and ECE. In Asia, the right
to education is absent in only the two constitutions that fail to include any ESRs at all:
Singapore and Malaysia. In SSAF and the Arab States, the right to education is less
ubiquitous. In SSAF it is absen
Rwanda, and Zimbabwe. Approximately one quarter of the Arab States do not enshrine a
right to education, including Djibouti, Lebanon, Mauritania, Morocco, and Tunisia. The
right to education is the third most commonly justiciable right (43.4%) after the right to
property (59.0%) and to form or join a trade union (54.9%).
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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2.3.8 TheRight to Development .
The right to development is a notoriously vague right, with nearly boundless potential
content. Because of its ambiguous meaning and content, it was included only if the
Given how commonly this right is invoked at the international level, and in the discourseof global justice, it is interesting how infrequently it shows up in developing country
constitutions, even in those constitutions that have been written in the period since the
right to development has gained currency. The right is present in seven SSAF, two LAM,
one ECE, one Arab State, and one Asian constitutions. It is identified as justiciable only
in Peru, Nicaragua, Malawi, Ethiopia, and the Democratic Republic of the Congo.
2.3.9 TheRight to a H ealthy Environment
Constitutions often included references to hygiene, suitability for human life, and
freedom from contamination that are distinct from either the employment related right to
a healthy work environment or the more generalized duty of the state to protect the
environment.
In terms of general prevalence, the two environmental rights, HENV and ENVP, are most
similar to the economic rights (with the exception of TRDU). They are neither as
common as PROP, EDUC, TRDU, HLTH, and SSEC nor as rare as HOUS, LAND,
FOWA, and DEVT.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
% Aspirational
Justiciable
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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HENV is proportionately more common in ECE than in LAM, present in all but Bosnia
Herzegovina. It is, however, far more commonly justiciable in LAM than elsewhere. This
right is absent in seven countries, aspirational in Colombia, and justiciable in all
remaining constitutions. The right is present in 59.5% of cases in SSAF and slightly more
likely to be justiciable than aspirational. In Asia, the right is present in 41.7% of
constitutions, but more than twice as likely to be aspirational. In the Arab States, it is
justiciable in Turkey, aspirational in Iraq and Sudan, and absent in all other countries.
Interestingly, despite the same proportion of Arab States containing the rights to healthy
working conditions and to a healthy environment, Turkey is the only country in which
both are entrenched. Both rights, as well as the duty of the state to protect the
environment, are justiciable in Turkey. The only other Arab State with a justiciable
environmental right is Egypt, which has a justiciable duty of the state to protect the
environment.
2.3.10 Duty of theStateto Protect theEnvironment
duty to protect the environment. An important distinction between the right to a healthy
environment and the duty of the state to protect the environment is that the former
latter is related more specifically to the natural environment. The right to a safe and
healthy environment might imply that the state has a duty to protect the environment, just
as a requirement of the state to protect the environment might imply direction to the state
to see that the right to a healthy environment is fulfilled.
The duty of the state to protect the environment is the most common environmental right
(63.1%) but the right to a healthy environment is more commonly justiciable at 29.5%, as
compared to 24.6% for the duty of the state to protect the environment and the right to a
healthy working environment. The greater frequency of this right as compared to other
environmental rights is reflected in four of the five regions, with only the ECE exhibiting
a lower incidence of this right than other environmental rights.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%Aspirational
Justiciable
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In line with the general trend among non-standard social rights, the right is most common
(81.8%) and most commonly justiciable (59.1%) in LAM, absent only in Cuba, the
Dominican Republic, Mexico, and Uruguay. Of these countries, both the Dominican
Republic and Uruguay contain no environmental rights of the type considered here, while
Cuba contains only an aspirational right to a healthy working environment, and Mexico
contains an aspirational right to the same as well as a justiciable right to a healthy
environment. Outside of LAM, the right is markedly less likely to be justiciable at 9.5%
in the Arab States, 12.5% in Asia, 27.3% in ECE, and 20.5% in SSAF.
2.4 IC ESCR Status
International instruments to which a state is a signatory are another way economic and
social rights may be entrenched in domestic jurisdictions. In particular, this research was
concerned with the status of the ICESCR within constitutions and how such treaties,
whether named or not, are incorporated into constitutional law. The aim was to
determine, based on the constitution, if the country incorporated international or regional treaties, covenants or agreements into national law,
Constitutions often mention a commitment to the UDHR. Fewer constitutions mention
the ICESCR specifically, but it has been signed and ratified by a majority of countries.
Somewhat differently from the other rights discussed above, the covenant was considered
ve full legal status, either explicitly or
implicitly, and where constitutional rights were backed with judicial review. Where a
country had signed and ratified the ICESCR and adopted it into domestic law, but did not
protect constitutional rights with judicial review, where exceptions were made regardingthe status of human rights treaties, or where countries with a monist legal system had
signed, but not ratified the Covenant, the ICESCR was considered aspirational. Countries
countries that have not ratified and/or signed the ICESCR,
and countries in which the constitution made no mention of the status of treaties, were
coded as absent.
0
20
40
60
80
100
Arab States Asia Eastern &Central Europe
Latin America Sub-SaharanAfrica
%AspirationalJusticiable
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The ICESCR has aspirational or justiciable force in 88.5% of the countries analyzed. In
some constitutions either the ICESCR in particular or international treaties and
conventions in general, have the status of, or are superior to, domestic law. In ECE the
ICESCR is justiciable in all but Bosnia Herzegovina and Croatia, both of which
incorporate the covenant in its justiciable form. In SSAF it is present in some form in all
but Botswana, Liberia, and Mozambique although justiciable in only 21.7% of
constitutions. Similarly, it is present in all but Haiti in LAM, although it significantly
more likely to be justiciable in the region (54.5%). Somewhat surprisingly considering
the otherwise relatively low incidence of ESRs, the Covenant is accorded some status in
81.0% of the Arab States, although it is only justiciable in Sudan and Turkey. The
Covenant is least commonly accorded standing in Asian constitutions, although it is still
present in 75.0% of cases. The Covenant is proportionately more likely to be justiciable
in Asia (16.7%) than in the Arab States (9.5%).
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3 Regional Treatment of RightsBy capturing not only the presence or absence of particular ESRs, but also their
justiciability, the TIESR dataset aims to provide a nuanced depiction of variation in
constitutional ESR guarantees. By aggregating the ESRs entrenched in specific
constitutions ESRs.
28 apparent: those that
that those
that 29
E RS SRs SSRs NSRsE Rs+SSRs
E Rs+SRs
Justiciable 50 33 42 34 44 36
Mixed 22 28 16 11 32 40
Aspirational 39 50 52 51 42 42
Total 111 111 110 96 118 118
Average 3.3 5.3 3.2 2.1 6.5 8.6
In the developing world, each of the three constitutional models make up approximately
one-
considered. In general, economic rights are more likely to be justiciable than aspirational,
while the reverse is true of social rights, albeit less so when only the standard social rights
are considered. Further, the four smaller groupings tend to be less mixed than the broader
combined categories. This may indicate that nevertheless, variation between economicand social rights also exists within constitutions. However, further analysis would be
required to reasonably assert that these observations are not simply a function of the
28The groupings employed in the present analysis and subsequently throughout this section of the report
are as follows: EconomicRights Social Rights ENVP. Standard SocialRights Non-Standard Social Rights FOWA; DEVT; HENV; ENVP.29In order to be considered a valid case for analysis, a constitution was required to contain at least one of
the component rights of the relevant rights group (ERs, SRs, SSRs, or NSRs). Therefore, the total number
of cases for each grouping is variable. For the combined categories (ERs + SSRs and ERs +SRs) a singleright in either of the groups was sufficient for the inclusion of a case. Somewhat problematically, this
introduces a bias toward the pure categories, as a single right will obviously lead to the classification as
hts
within a group increases, the degree of bias introduced should decrease. To assist in the interpretation of the
data the median number of rights enshrined within a constitution is included for each grouping. Moreover,
as discussed below, prevailing analyses tend to assume that the set of ESRs contained within a constitution
are uniformly justiciable or aspirational, the bias introduced works against our finding that internal
variation of ESR type occurs. Thus, while the observations may be overstating the prevalence of uniformity
of treatment, it is held that the presentation and discussion of this data is warranted.
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increased likelihood of non-uniformity resulting from an increased number of potential
rights.
3.1 TheArab States
The Arab States region includes a total of twenty-one constitutions with an average of 5.6
ESRs per constitution. PROP is enshrined in all but the Syrian constitution in the region.
Five constitutions contain justiciable rights: Turkey (14), Iran (8), Sudan (6), Djibouti (2),
and Egypt (2). The Turkish Constitution contains the greatest number of ESRs in the
region with fourteen, while the Lebanese Constitution contains the fewest with none.
Also of note are Bahrain, which contains ten ESRs, all of which are aspirational, and
Mauritania, which contains only the aspirational right to strike. Property rights are absent
in Syria, justiciable in Djibouti, Iran, the Sudan, and Turkey and aspirational in all other
countries in the region. The ICESCR is present in all but Oman, Saudi Arabia, and the
UAE, but is justiciable only in Sudan and Turkey.
The most frequently occurring rights in this region are EDUC (16), HLTH (15), SSEC
(14), and TRDU (13). The least frequent are DEVT (1), FOWA (1), LAND (2), HENV
(3), HENV (3), HOUS (4), STRK (5), and LEIS (5). This region does not contain a high
proportion of justiciable rights. The four occurrences of TRDU make it the most
frequently justiciable, followed by three each of SSEM, SSEC, CPRO, HLTH, and
EDUC. DEVT is not justiciable anywhere in the region, and FRWG, HWRK, LAND,
FOWA, and HENV are justiciable only in the Turkish Constitution.
0
10
20
30
40
50
60
70
80
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Aspirational Justiciable Combined
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E RS SRs SSRs NSRsE Rs+SSRs
E Rs+SRs
Justiciable 4 2 3 3 4 3
Mixed 1 2 0 0 1 2
Aspirational 12 12 13 7 15 15Total 17 16 16 10 20 20
Average 2.0 3.6 2.7 0.9 4.7 5.6
In the Arab States, all but Egypt and Sudan (only when ERs + SRs are considered) are
models of the five regions. However, the relatively lower incidence of ESRs in this
prevalence of aspirational enshrinement of such rights as there are within the regions
teen constitutions
contain at least one economic right, and fifteen contain at least one standard social right,only nine contain at least one non-standard social right. The only country in the region
that does not enshrine any ESRs is Lebanon. The Lebanese constitution is also the oldest
in the region, enacted in 1926, well before any of the relevant international documents
existed.
3.2 Asia
The Asian region contains twenty-three constitutional cases with an average of 7.6 ESRs.
In terms of justiciable rights, the regional average is 2.6. East Timor, North Korea, the
Philippines, and South Korea contain the most rights with twelve each. Malaysia and
Singapore contain the fewest with none. East Timor also contains the greatest number of
justiciable ESRs (12), while Afghanistan, Bhutan, Brunei, China, Indonesia, Laos,
Malaysia, North Korea, Singapore, South Korea, and Vietnam have no justiciable rights.
0
10
20
30
40
50
60
70
8090
100
Aspirational Justiciable Combined
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Property rights are present in all but Brunei, Singapore and Sri Lanka, and evenly split
between justiciable
constitutions, but is justiciable only in East Timor, Mongolia, Nepal, and Thailand.
The most commonly enshrined rights in the region are EDUC (21), SSEC (20), HLTH
(20), CPRO (17), and SSEM (16). The least common are DEVT (0), (STRK (4), LAND(6), FOWA (6), and FRWG (7). TRDU (10) is the most commonly justiciable. EDUC (9),
HLTH (7), SSEC (6), and CPRO (6) are the next most commonly justiciable. The least
frequently justiciable rights in the region are DEVT and FRWG which are never
justiciable, FOWA, justiciable only in Nepal, and LAND, justiciable only in the
Philippines.
F requency ofConstitutional Modelsin Asia
E RS SRs SSRs NSRsE Rs+SSRs
E Rs+SRs
Justiciable 6 3 6 2 5 3Mixed 5 7 4 3 8 10
Aspirational 8 11 11 14 8 8
Total 19 21 21 19 21 21
Average 2.4 5.2 3.3 2.0 5.6 7.6
In terms of consistent ESR treatment, Asia exhibits the highest proportion of mixed
constitutions in the five regions (ERs + SRs: 38.1%; ERs+SSRs: 47.6%). The region also
only East Timor, Japan, and Mongolia falling under that category, while 38.1% of the
constitutions in the region are aspirational. Brunei, Malaysia and Singapore are the onlycountries in the region whose constitutions fail to include even a single economic or
social right.
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Constitutions in ECE are evenly distributed between the three models and evidence a
high incidence of ESRs. Indeed, the median constitution in the region contains all six
economic rights. Ten of eleven constitutions contain at least one ER and all contain at
least one SR. As noted above, Bosnia and Herzegovina is the outlier in the region
containing only one SR, the aspirational right to education.
3.4 Latin America
The Latin American region contains twenty-two cases. The median constitution in this
region contains fourteen ESRs and the average is 13.0. ESRs in the region are also
predominantly justiciable, with the average constitution containing 9.7 justiciable rights
and the median 12.5 markedly higher than any other region. The Nicaraguan
Constitution contains seventeen ESRs, all of which are justiciable. This is both the
greatest number of ESRs and the greatest number of justiciable rights in the region and in
the dataset. Belize (6), Chile (8), and the Dominican Republic (9) are the only countrieswith fewer than ten enshrined rights. Property rights present in all constitutions in the
region, aspirational in Colombia, Cuba, the Dominican Republic, and Haiti, and
justiciable in the rest. The ICESCR is aspirationally enshrined in nine constitutions,
justiciably so in twelve, and absent in oneHaiti.
SSEM (21) in all but Bolivia, although it should be noted that the Bolivian Constitution
contains a justiciable right to social security more generally. FRWG (20) and HLTH (20)
regions is DEVT (2), present in Nicaragua and Peru and justiciable in both cases.HWRK (14), FOWA (14), LAND (15), and HENV (15) are the next least frequently
enshrined rights. TRDU (17), FRWG (16), STRK (15), CPRO (15), and EDUC (15) are
the most commonly justiciable rights, while DEVT (2), LAND (10), FOWA (10), and
HWRK (11) are the least.
0102030405060708090
100
Aspirational Justiciable Combined
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Frequency ofConstitutional Modelsin Latin America
E RS SRs SSRs NSRsE Rs+SSRs
E Rs+SRs
Justiciable 14 12 14 14 14 12
Mixed 4 5 2 2 5 7
Aspirational 4 5 6 6 3 3Total 22 22 22 22 22 22
Average 5.1 7.3 3.6 3.7 8.7 12.4
Constitutions in LAM exh
constitutions (ERs+SSRs: 63.6%; ERs+SRs: 54.5% ) and the lowest proportions of pure
the constitutions in the region enshrine a least one of each of the three primary rights
groupings (ERs, SSRs, and NSRs). LAM is the only region in which this occurs.
Although the median constitution includes one fewer economic right than that of the
ECE, it contains eight (as compared to six) social rights all four of the standard social
rights, and four of the possible six non-standard social rights.
3.5 Sub-Saharan Afr ica
Sub-Saharan Africa, with forty-four cases, is by far the largest region analyzed. The
average constitution contains 8.3 ESRs. In terms of justiciable rights, the average is 4.4.
Most SSAF constitutions contain three or fewer justiciable rights, or ten or more. The
Ugandan Constitution contains the most ESRs in the region with fifteen, while Botswana,
Kenya, Mauritius, and Tunisia, each with one, contain the fewest. The Democratic
Republic of the Congo contains the highest number of justiciable ESRs in the region with
fourteen and Angola, Cape Verde, Seychelles, and South Africa each contain thirteen. The
constitutions of tweleve countries in the region do not contain any justiciable ESRs.
Property rights are present in all SSAF countries, aspirational in twelve and justiciable in
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80
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thirty-two. The ICESCR is aspirational in thirty-one constitutions, justiciable in ten, and
absent (un-signed) in Botswana, Liberia, and Mozambique.
The most commonly found ESRs in SSAF are TRDU (40), EDUC (37), CPRO (34),
HLTH (33), SSEC (32), and STRK (29). The least common are LAND (6), DEVT (7),
FOWA (9). The most commonly justiciable are TRDU (30), CPRO (21), EDUC (20),
STRK (17) the least commonly justiciable are LAND, found in Ethiopia, South Africa,
and Zimbabwe, FOWA, found in the Democratic Republic of the Congo, Malawi and
South Africa, and DEVT, found in the Democratic Republic of the Congo, Ethiopia, and
Malawi.
Frequency ofConstitutional Modelsin Sub-Saharan Africa
E Rs SRs SSRs NSRsE Rs+SSRs
E Rs+SRs
Justiciable 22 12 13 11 17 15
Mixed 9 12 10 6 15 17Aspirational 12 17 17 18 12 12
Total 43 41 40 35 44 44
Average 3.1 5.1 3.1 2.0 6.2 8.3
The distribution of constitutions in SSAF is relatively even across the three models,
- contain at least one ESR, all but
Eritrea contain at least one economic right, and all but Botswana, Kenya, Mauritius, and
contain at least one social right.
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between HOUS and FOWA (.656); and weaker but still significant correlations between
LAND and HOUS (.517), and LAND and FOWA (.494). The quantitative analysis shows
that, along with DEVT, these rights are least likely to be enshrined in developing country
constitutions. The only region in which these three rights are generally present in
constitutions is Latin America (LAND 68.2%, HOUS 81.8%, FOWA 63.6%), although
43.5% of Asian constitutions and 29.8% of African constitutions also include a right to
housing. Rights to land and food and water are completely absent from the constitutions
of East Central Europe, and mostly absent in Asia and the Arab States.
We specula
education and healthcare. A right to land may be perceived as directly threatening to a
right to property, and all three rights, to land, housing, and food and water, may be
construed as properly provided through the market rather than an obligation of the state.33
re,
Healthy Work Environment, Social Security related to Employment, and Social Security.
This relationship is revealed by a moderately strong correlation between LEIS and
HWRK (.611), SSEM and SSEC (.567), LEIS and SSEC (.514), LEIS and SSEM (.513),
although the correlation is weaker between HWRK and SSEM (.458) and HWRK and
SSEC (.445).
Unsurprisingly, there is a statistically significant correlation between the right to strike
and the right to organize a trade union (.526). Although the data show that these two
rights mostly coexist in constitutions, in particular in Latin America and East-Central
Europe, there are a few instances of constitutions that include a right to strike in the
absence of a right to unionize. More common is the presence of TRDU and the absence
of STRK, especially in Asia. TRDU is present in 77.9% of developing country
constitutions, and justiciable in 54.9%, whereas STRK is present in 54.9% of
constitutions and justiciable in 34.4%.
1990); William Finnegan, The Economics of Empire: Notes on the Washington Consensus,Harper's306
(2003): 41-54.33Andras Sajo has described social rights as subsidies for the middle class, at least in Hungary (Andras
Sajo, Social Rights as Middle-Class Entitlements in Hungary: The Role of the Constitutional Court, in
Courtsand Social Transformation in New Democracies: an Institutional Voicefor thePoor?, ed. Roberto.Gargarella, Pilar. Domingo, and Theunis. Roux (Aldershot, England: Ashgate, 2006).). In a comparison of
economic and rights-based approaches to social rights, Varun Gauri notes that economists tend to view all
ESRs as subsidies. (Varun Gauri, Social Rights and Economics: Claims to Health Care and Education in
Developing Countries,World Development32, no. 3 (2004): 465477. the Washington Consensus suggests that most international policy-makers distinguish between different
types of government spending (Williamson, What Washington Means by Policy Reform.).
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We speculate that there are two possible reasons for the fact that the correlation is not
stronger between TRDU and STRK. First, although TRDU and STRK are separately
enshrined in the ICESCR, it is possible that some constitutions treat STRK as implicit in
TRDU. We think it more likely however, given that the right to strike is most absent in
Asia and the Arab States, that a right to strike is perceived as more threatening to
economic and/or political stability than a right to unionize, in particular in corporatist
states where unionization is often organized from the top-down by states themselves.34
This refinement in the categorization of rights reveals an interesting pattern in the relative
prevalence of economic rights and the standard social rights. Across the world, five of
the six economic rights identified in our database (all except TRDU) are less commonly
enshrined in constitutions than the four standard social rights (education, health, child
protection, and social security). The actual discrepancy between the two groups of rights
varies from region to region, with Asia showing the most marked bifurcation and Latin
America the least. Two rights we coded as social rights, Healthy Environment and
Environmental Protection, exhibit patterns much closer to the economic rights than to the
most commonly enshrined social rights.
This observation was initially masked by the fact that we included a very wide range of
social rights in our database, including four that are quite rarely enshrined in
constitutions: land, housing, food and water, and development. Since these rights are
mostly absent from all constitutions outside Latin America, they seemed to distort a
comparison of the relative frequency of economic versus social rights.
The fact that constitutions enshrine a certain subset of social rights more routinely than
economic rights is particularly interesting against the background of common
social rights. One reason
e non-interference. The protection
of positive rights is conversely said to require state interference and, indeed, state
funding. It is because economic and social rights supposedly require state interference
and funding that many legal scholars have argued that they should not be enshrined in
constitutions, are not justiciable, and should properly be protected through legislationrather than court decisions.
35
34Philippe Schmitter, Still the Century of Corporatism?,in TrendsTowardsCorporateIntermediation,ed. Philippe Schmitter and Gerhard Lehmbruch (London: Sage, 1979), 7-48.35Cass R. Sunstein, Against Positive Rights,EastEuropean Constitutional Review2, no. 1 (1993): 3537; Dennis M. Davis, The Case Against the Inclusion of Socio-Economic Demands in a Bill of Rights
Except as Directive Principles,South A frican Journal on Human Rights8 (1992): 475-490.
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Many scholars have challenged this bifurcation, arguing in particular that civil and
political rights are empty in the absence of protection for economic and social rights. The
two sets of rights, they argue, are indivisible and mutually constitutive, and not only that,
but they all depend for their protection on government spending and interference. There is
no bright line between first and second-generation rights, and the positive, negative
distinction is empty.36
We concur with this characterization of the relationship among rights. Mapping the
positive-negative distinction onto first and second-generation rights is neither accurate
nor analytically useful. Many civil and political rights are positive in the sense that they
require more than government non-interference for their protection including for
example the right to a fair trial, to police protection, and to property. Many economic
rights, including the right to a fair wage, leisure, a healthy work environment, and
employment benefits are similar in the sense that they require legislation and state
willingness to enforce the law. The economic rights to unionize and to strike, however,
are more like the civil rights to free association, freedom of religion, and free speech,