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"Since World War II, a growing number of jurisdictions have adopted progressive constitutions or entered international commitments that guarantee social and economic rights (SER) in addition to political and civil rights. Parallel developments have occurred at trans-national level with the adoption of treaties which commit signatory states t to respecting and guaranteeing fulfilment of SER for their peoples. This book is a product of the International Social and Economic Rights Project (iSERP), a global consortium of judges, lawyers, human rights advocates, and legal academics who critically examine the effectiveness of SER law in promoting real change in people's lives. The book addresses a range of practical, political, and legal questions under these headings, with acute sensitivity to the racial, cultural, and gender implications of SER and the path-breaking SER jurisprudence now emerging in the "Global South." The book brings together internationally renowned experts in the field of social and economic rights to discuss a range of rights from both a theoretical and a practical perspective. Contributors of the book consider specific issues in the litigation and adjudication of SER cases from the differing standpoints of activists, lawyers, and adjudicators in order to identify and address the specific challenges facing the SER community. This book will be of great use and interest to students and scholars of human rights law and civil liberties, public international law, and development studies"--

Social and economic rights (SER) adjudication is an ever more common feature of rights-protecting democracies. Yet democratic concerns continue to be expressed: the threat of a judicialized politics, a politicized judiciary, co-opted claimants, distorted markets, and other (real and imagined) challenges. These concerns are raised within jurisdictions that have not yet entrenched SER and those in which SER are explicitly justiciable. Scholars seeking to address, or at least quiet, such concerns often explore the real-world examples of SER justiciability in South Africa, India, Colombia, Brazil, Argentina and other jurisdictions discussed in this book. Another approach is to examine new ways of theorizing the models of democratic representation and separation-of-powers implicit in these criticisms and to test these new models against comparative experience. This chapter examines the promise of the approach of "democratic experimentalism". We begin by cataloguing the typical critiques of SER adjudication and then describe how democratic experimentalism, read sympathetically, responds to each. Next we apply these responses to the Mazibuko right-to-water case in South Africa and imagine an alternative approach to that case. Our thought experiment is meant to bring the pros and cons of democratic experimentalist thinking into sharp relief. We suggest that, while the theoretical and practical program of democratic experimentalism retains the potential for securing more democratic participation in SER adjudication, it might nevertheless entail significant costs for under-resourced, unorganized and politically-weak claimants. This conclusion raises the question whether any new procedural or remedial formats for SER adjudication can help to realize such rights without a fundamental rethinking of the material preconditions of democracy itself.

Cover -- Endorsements -- Half Title -- Series -- Title -- Copyright -- Dedication -- Contents -- Foreword -- Preface -- Table of Instruments -- Table of Cases -- List of Abbreviations -- 1 General Introduction -- Hypothesis -- Structure -- Methodology -- 2 Socio-economic Rights as Normative and Justiciable Standards -- Introduction -- The Problematic -- The Dialectics -- A Synthesis -- Conclusion -- 3 Africa in the United Nations' Socio-economic Rights Framework -- Introduction -- 'In Larger Freedom' -- The Modern Magna Carta -- The Human Rights Covenants -- Other Specialised Treaties -- Conclusion -- 4 Socio-economic Rights in Regional Africa -- Introduction -- Decades of Standard Setting -- Interrogating Rights -- Conclusion -- 5 Constitutionalising Socio-economic Rights -- Introduction -- Constitutionalising Rights -- Some Thematic Analysis -- Conclusion -- 6 The Concepts of Obligations and 'Minimum Core' -- Introduction -- States Obligations in International Law -- States Obligations in Municipal Law -- Typology of Obligations -- Progressive Realisation and the 'Minimum Core' -- The 'Good Faith' Principle -- Conclusion -- 7 Interpreting Socio-economic Rights -- Introduction -- The Judicial Function -- Interpretive Methodologies -- Limits of Judicial Function -- Conclusion -- 8 Making Socio-economic Rights Work -- Summary -- From Vision to Reality -- Conclusion: 'Moonglow' -- Bibliography -- Index.