©2019 by Toronto Initiative for Economic and Social Rights.

PUBLICATIONS & DATA

ROSEVEAR E, HIRSCHL R AND JUNG C, ‘JUSTICIABLE AND ASPIRATIONAL ESRS IN NATIONAL CONSTITUTIONS’ IN KATHARINE G YOUNG (ED), THE FUTURE OF ECONOMIC AND SOCIAL RIGHTS (CAMBRIDGE UNIVERSITY PRESS, 2019)

In an article published in the American Journal of Comparative Law, we drew upon an original data set on ESRs in national constitutions to provide empirically-grounded answers to several basic questions: How common is the broad category of economic and social rights in constitutions around the world? Are there differences in the specific social rights that are guaranteed constitutional protection? And what accounts for variation in the scope and nature of ESR constitutional protections across polities? In this chapter, we analyze a new addition to the dataset that identifies changes in the presence and formal justiciability of ESRs from 2000 to 2016. We measure patterns of convergence and polarization in ESR entrenchment along three axes: region, legal tradition and types of rights. Taken as a whole, our analysis reveals that recent constitutions and constitutional amendments continue the trend of including economic and social rights in the world’s constitutions. In 2016, there are more constitutionally entrenched ESRs than ever before. ESRs are not only more present in constitutions, they are also more likely to be justiciable than ever before. As a result, certain ESRs have become standard features of constitutions and of constitutional jurisprudence, in many cases being accorded co-equal status with civil and political rights, while others are likely to remain largely declarative or aspirational in nature, with little impact on the actual realization of human well-being.

ROSEVEAR E, ‘REALIZING SOCIAL RIGHTS: THE MATERIAL IMPACTS OF CONSTITUTIONAL ENTRENCHMENT’ (2017) 7 CONTEMPORÂNEA 313

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Using data on the constitutional protection of social rights in 195 countries from 2000-2015 and controlling for economic, political, and demographic variables, I found moderately strong evidence that the right to health leads to increased public expenditures on healthcare but mixed evidence in relation to health outcomes, limited evidence of that the right to education improves primary school enrolment levels in non-civil law jurisdictions, and no correlation between the right to social security and income inequality. Contrary to expectations, I also found that ICESCR ratification is positively associated with declining infant mortality rates.

JUNG C, HIRSCHL R AND ROSEVEAR E, ‘ECONOMIC AND SOCIAL RIGHTS IN NATIONAL CONSTITUTIONS’ (2014) 62 AMERICAN JOURNAL OF COMPARATIVE LAW 1043

Much has been written about the global convergence on constitutional supremacy, and the corresponding rise of an apparently universal constitutional discourse, primarily visible in the context of rights. In this Paper, we examine the global constitutional homogeneity claim with respect to economic and social rights. Based on a new and unique dataset that identifies the status of sixteen distinct economic and social rights in the world's constitutions (195 in total), we make four arguments. First, although economic and social rights (ESRs) have grown increasingly common in national constitutions, not all ESRs are equally widespread. Whereas a right to education is so common as to be practically universal, a right to food and water is still very rare. Second, constitutions accord ESRs different statuses, or strengths. More than some one-third of countries identify all economic and social rights as justiciable, another third identify some ESRs as aspirational and some as justiciable, and the last third identify ESRs as aspirational or entrench fewer than two. Third, legal tradition—whether a country has a tradition of civil, common, Islamic, or customary law—is a strong predictor of whether a constitution will have economic and social rights and whether those rights will be justiciable. Fourth, whereas regional differences partly confound the explanatory power of legal traditions, region and legal tradition retain an independent effect on constitutional entrenchment of ESR. We conclude by suggesting that despite the prevalence of economic and social rights in national constitutions, as of 2013 there is still considerable variance with respect to the formal status, scope and nature of such rights. Because the divergence reflects lasting determinants such as legal tradition and region, it is likely to persist.

JUNG C AND ROSEVEAR E, ‘ECONOMIC AND SOCIAL RIGHTS ACROSS TIME, REGIONS, AND LEGAL TRADITIONS: A PRELIMINARY ANALYSIS OF THE TIESR DATASET’ (2012) 30 NORDIC JOURNAL OF HUMAN RIGHTS 374

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Nearly all written constitutions in the developing world contain one or more economic and social rights. However, some rights are more commonly enshrined than others, and there is wide variation in terms of whether such rights are identified as justiciable – enforceable in a court of law – or merely aspirational. The most interesting variations occur along three dimensions: time, region, and legal tradition. Most constitutions are new, and the contemporary constitutional model affords greater standing to economic and social rights than the previous post-War model. There are significant regional differences in the relative prevalence of such rights, and some regions exhibit a clear regional norm with respect to economic and social rights. Finally, the constitutions of common law countries are significantly less likely to include economic and social rights, and to identify them as justiciable, than those of civil law countries. This article reports some of the initial findings of a new dataset measuring the constitutional entrenchment of economic and social rights.