Economic and Social Rights after the Global Financial Crisis

The Global Financial And Economic Crises Have Had A Devastating Impact On Economic And Social Rights. These Rights Were Ignored By Economic Policy Makers Prior To The Crises And Continue To Be Disregarded In The Current 'age Of Austerity'. This Is The First Book To Focus Squarely On The Interrelationship Between Contemporary And Historic Economic And Financial Crises, The Responses Thereto, And The Resulting Impact Upon Economic And Social Rights. Chapters Examine The Obligations Imposed By Such Rights In Terms Of Domestic And Supranational Crisis-related Policy And Law, And Argue For A Response To The Crises That Integrates These Human Rights Considerations. The Expert International Contributors, Both Academics And Practitioners, Are Drawn From A Range Of Disciplines Including Law, Economics, Development And Political Science. The Collection Is Thus Uniquely Placed To Address Debates And Developments From A Range Of Disciplinary, Geographical And Professional Perspectives.-- Introduction / Aoife Nolan -- Alternatives To Austerity : A Human Rights Framework For Economic Recovery / Magdalena Sepúlveda Carmona -- Late-neoliberalism : The Financialisation Of Homeownership And The Housing Rights Of The Poor / Raquel Rolnik & Lidia Rabinovich -- The Role Of Global Governance In Supporting Human Rights : The Global Food Price Crisis And The Right To Food / Olivier De Schutter -- Two Steps Forward, No Steps Back? : Evolving Criteria On The Prohibition Of Retrogression In Economic, Social And Cultural Rights / Aoife Nolan, Nicholas J. Lusiani & Christian Courtis -- Extraterritorial Obligations, Financial Globalisation, And Macroeconomic Governance / Radhika Balakrishnan & James Heintz -- Austerity And The Faded Dream Of A Social Europe / Colm O'cinneide -- Rationalising The Right To Health : Is Spain's Austere Response To The Economic Crisis Impermissible Under International Human Rights Law / Nicholas J. Lusiani -- Hard Times And Soft Review : The 2008 Economic Meltdown And The Enforcement Of Socio-economic Rights In U.s. State Courts / Helen Hershkoff & Stephen Loffredo -- The Promise Of A Minimum Core Approach : The Colombian Model For Judicial Review Of Austerity Measures / David Landau -- The Impact Of The Supreme Court Of Argentina On Escr In The Decade Following The 2001/2003 Crises / Gustavo Maurino & Ezequiel Nino -- Recession, Recovery And Service Delivery : Political And Judicial Responses To The Financial And Economic Crisis In South Africa / Anashri Pillay & Murray Wesson. Edited By Aoife Nolan. Includes Bibliographical References And Index. Cover 1 Half-title 3 Title page 5 Copyright information 6 Dedication 7 Table of contents 9 List of figures 11 Notes on contributors 12 Acknowledgements 19 Table of cases 20 Table of legislation 28 List of abbreviations 35 Introduction 37 I. Painting the big (global) picture: the crises and economic and social rights protection internationally 41 II. Teasing out obligations in a time of crisis 44 III. Exploring responses to financial and economic crises 46 IV. Conclusions and new post-crisis frontiers 51 Part I Painting the big (global) picture 57 1 Alternatives to austerity 59 I. Introduction 59 II. Human rights framework 60 A. Using the maximum resources available 61 B. Ensuring minimum essential levels of ESCR 62 C. Avoiding deliberate retrogressive measures 62 D. Ensuring non-discrimination and equality 63 E. Guaranteeing participation 65 F. Ensuring accountability 65 III. States’ responses to the crises and their potential threat to the realisation of human rights 66 A. Eroding social protection systems 69 B. Cutting spending on public services 71 C. Reducing wage bills 72 D. Implementing regressive taxation measures 74 E. Limiting food subsidies 75 IV. Recommendations for a rights-based recovery 76 A. Ensuring a social protection floor for all 78 B. Promoting employment and supporting decent work 80 C. Implementing socially responsible taxation policies 82 D. Enhancing financial regulation 83 E. Adopting a comprehensive national strategy to reduce poverty 85 F. Conducting human rights impact assessments 85 G. Ensuring gender-sensitive policies 86 H. Increasing participation and creating a national dialogue 87 I. Ensuring vulnerable people can effectively challenge policy decisions that threaten their ESCR 87 J. Strengthening state institutional and technical capacity and data collection 89 K. Enhancing international assistance and cooperation 89 V. Conclusion – crisis as opportunity: a time for transformative policies 91 2 Late-neoliberalism 93 I. Introduction 93 II. The rise of housing finance 94 III. The international human rights framework 101 IV. Prevalent housing finance policies and their impact on the right to adequate housing of people living in poverty 103 A. Mortgage markets 103 B. Demand subsidies 108 C. Housing micro-finance 115 V. Summing up and setting out an alternative: a human rights-based approach to housing policies 122 3 The role of global governance in supporting human rights 126 I. Introduction 126 II. The shock of 2008: a short history of the food price crisis 129 III. The diagnosis: the need for improved consistency across policy areas 134 IV. The role of human rights in shaping international regimes: the Rome Model 141 A. The reform of the Committee on World Food Security 142 B. The next steps 147 V. Conclusion 151 Part II Teasing out obligations in a time of crisis 155 4 Two steps forward, no steps back? Evolving criteria on the prohibition of retrogression in economic, social and cultural rights 157 I. Introduction 157 II. The prohibition of retrogression under Article 2(1) of ICESCR: origins and key questions 158 III. Accounting for the Committee’s reticence and the challenges posed by the crohibition of retrogression 162 IV. Giving meaning to the prohibition of retrogression under ICESCR 169 V. Distilling criteria for determining impermissible retrogression 175 VI. Conclusion 180 5 Extraterritorial obligations, financial globalisation and macroeconomic governance 182 I. Introduction 182 II. Extraterritorial obligations, ICESCR and the Maastricht Principles 183 III. Monetary policy, capital flows and extraterritorial obligations 188 IV. Financial globalisation, contagion and crisis 192 V. Extraterritorial obligations, global institutions and international cooperation 197 VI. Conclusion 200 Part III Exploring responses to financial and economic crises 203 6 Austerity and the faded dream of a ‘social Europe’ 205 I. Introduction 205 II. The establishment of the European social model 206 III. The legal dimension of ‘social Europe’ 209 IV. The slow decay of the European welfare states 217 V. The crisis of austerity and the hollowness of the political discourse of ‘social Europe’ 220 VI. The limits of European social rights law 224 VII. The limited impact of international human rights standards in the social sphere 230 VIII. Conclusion 236 7 Rationalising the right to health 238 I. Introduction 238 II. Spain’s legal obligations to realise the human right to the highest attainable standard of health 239 III. The two waves of impacts of recession and austerity on the enjoyment of the human right to health in Spain 242 A. Austerity measures affect social determinants of health, especially decent work, housing and an adequate standard of living ... 246 B. Austerity measures threaten the universality, accessibility, affordability and quality of the Spanish health care system 250 IV. Spain’s austerity-driven responses to the economic crisis – impermissible under international law? 255 V. Conclusion: remedying retrogression in the right to health 268 8 Tough times and weak review 270 I. Introduction 270 II. The 2008 meltdown and US states 271 III. Subnational US judicial enforcement of socio-economic rights 273 IV. Modes of judicial review and socio-economic rights 276 V. Post-meltdown US state judicial enforcement of socio-economic rights 279 A. Fostering legislative improvement of public schools 280 B. Using equality norms to protect health care for immigrants 286 C. Offering common-law protection against contractual foreclosure 296 VI. Conclusion: US state courts and socio-economic rights 301 9 The promise of a minimum core approach 303 I. Introduction 303 II. The Colombian constitutional framework: the vital minimum and the social state of law 304 III. Initial response to crisis: large-scale interventions, middle-class beneficiaries and political pushback 310 IV. Proportionality and the vital minimum: targeted review of austerity measures 317 V. The vital minimum and structural interventions for the poor 321 VI. Conclusions: the value of the minimum core and the Colombian model 329 10 Economic and social rights and the Supreme Court of Argentina in the decade following the 2001–2003 crisis 335 I. Introduction 335 II. The 2001 crisis and the Argentine constitutional context 337 A. The development of the crisis 337 B. The Argentine constitutional context 340 III. The judiciary and ESR during the economic crisis in Argentina 343 A. Right to health care 346 Individual suits 347 Class actions 349 B. Right to adequate nutrition 350 C. Right to adequate housing 352 D. The significance of the decisions 356 IV. Emergency, property rights and the judiciary 357 A. The classical standard: broad ‘emergency’ powers to restrict economic property rights 358 B. The 2001 crisis, public policies and judicial review 361 Cases on emergency measures and the property rights of bank depositors and mortgagees 362 Cases on economic rights relating to social security benefits and public sector salaries 364 V. Comparative analysis and conclusions 367 A. Crisis as a risk and as an opportunity for the legitimacy of the courts 367 B. ESR, constitutional interpretation and the protection of the most vulnerable groups in the face of the crisis 368 C. Economic crisis and robust constitutions for ESR 370 11 Recession, recovery and service delivery 371 I. Introduction 371 II. A crisis prior to a crisis? South Africa 1990–2007 372 III. The global financial crisis reaches South Africa: denial, response and muted recovery 375 IV. Adjudicating economic and social rights in a recession: case-law from 2009 380 A. Meaningful engagement diluted 382 B. Mazibuko: reasonableness redefined? 384 C. Assessing the cases: recession jurisprudence? 389 V. Post-2009 developments in the case-law 392 VI. Conclusion 398 Index 402