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Constituting Economic and Social Rights$

Katharine G. Young

Print publication date: 2012

Print ISBN-13: 9780199641932

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199641932.001.0001

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(p.300) Appendix I Excerpts from Various Constitutions

(p.300) Appendix I Excerpts from Various Constitutions

Constituting Economic and Social Rights
Oxford University Press

Primary Jurisdiction—Constitution of South Africa 1996

7. Rights

  1. 1. This Bill of Rights is a cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.

  2. 2. The state must respect, protect, promote and fulfil the rights in the Bill of Rights.

  3. 3. The rights in the Bill of Rights are subject to the limitations contained or referred to in section 36, or elsewhere in the Bill.

8. Application

  1. 1. The Bill of Rights applies to all law, and binds the legislature, the executive, the judiciary and all organs of state.

  2. 2. A provision of the Bill of Rights binds a natural or a juristic person if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right.

  3. 3. When applying a provision of the Bill of Rights to a natural or juristic person in terms of subsection (2), a court

    1. a. in order to give effect to a right in the Bill, must apply, or if necessary develop, the common law to the extent that legislation does not give effect to that right; and

    2. b. may develop rules of the common law to limit the right, provided that the limitation is in accordance with section 36(1).

9. Equality

  1. 1. Everyone is equal before the law and has the right to equal protection and benefit of the law.

  2. (p.301) 2. Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.

  3. 3. The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.

  4. 4. No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.

  5. 5. Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.

10. Human dignity

Everyone has inherent dignity and the right to have their dignity respected and protected.

26. Housing

  1. 1. Everyone has the right to have access to adequate housing.

  2. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

  3. 3. No one may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.

27. Health care, food, water and social security

  1. 1. Everyone has the right to have access to

    1. a. health care services, including reproductive health care;

    2. b. sufficient food and water; and

    3. c. social security, including, if they are unable to support themselves and their dependants, appropriate social assistance.

  2. 2. The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.

  3. 3. No one may be refused emergency medical treatment.


28. Children

  1. 1. Every child has the right

    1. a. to a name and a nationality from birth;

    2. b. to family care or parental care, or to appropriate alternative care when removed from the family environment;

    3. c. to basic nutrition, shelter, basic health care services and social services;

    4. d. to be protected from maltreatment, neglect, abuse or degradation;

    5. e. to be protected from exploitative labour practices;

    6. f. not to be required or permitted to perform work or provide services that

      1. i. are inappropriate for a person of that child’s age; or

      2. ii place at risk the child’s well-being, education, physical or mental health or spiritual, moral or social development;…

29. Education

  1. 1. Everyone has the right

    1. a. to a basic education, including adult basic education; and

    2. b. to further education, which the state, through reasonable measures, must make progressively available and accessible.

  2. 2. Everyone has the right to receive education in the official language or languages of their choice in public educational institutions where that education is reasonably practicable. In order to ensure the effective access to, and implementation of, this right, the state must consider all reasonable educational alternatives, including single medium institutions, taking into account

    1. a. equity;

    2. b. practicability; and

    3. c. the need to redress the results of past racially discriminatory laws and practices.

  3. 3. Everyone has the right to establish and maintain, at their own expense, independent educational institutions that

    1. a. do not discriminate on the basis of race;

    2. b. are registered with the state; and

    3. c. maintain standards that are not inferior to standards at comparable public educational institutions.

  4. 4. Subsection (3) does not preclude state subsidies for independent educational institutions.


36. Limitation of rights

  1. 1. The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including

    1. a. the nature of the right;

    2. b. the importance of the purpose of the limitation;

    3. c. the nature and extent of the limitation;

    4. d. the relation between the limitation and its purpose; and

    5. e. less restrictive means to achieve the purpose.

  2. 2. Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

39. Interpretation of Bill of Rights

  1. 1. When interpreting the Bill of Rights, a court, tribunal or forum

    1. a. must promote the values that underlie an open and democratic society based on human dignity, equality and freedom;

    2. b. must consider international law; and

    3. c. may consider foreign law.

  2. 2. When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

  3. 3. The Bill of Rights does not deny the existence of any other rights or freedoms that are recognised or conferred by common law, customary law or legislation, to the extent that they are consistent with the Bill.

Constitution of Colombia 1991

Article I

Colombia is a social State of law [Estado social de derecho] organized in the form of a unitary Republic, decentralized, with the autonomy of its territorial units, democratic, participatory, and pluralistic, based on the respect for human dignity, on the work and the solidarity of the persons who compose it, and the prevalence of the general interest.

Article 2

The essential goals [duties] of the State are to serve the community, promote the general prosperity, and guarentee the effectiveness of the principles, rights and duties consecrated in the constitution…

(p.304) Chapter 2 of the Social, Economic, and Cultural Rights

Article 44

Basic rights of children are: life, physical integrity, health and social security, a balanced diet, their name and nationality, to have a family and not be separated from it, care and love, instruction and culture, recreation, and the free expression of their opinions. They shall be protected against any form of abandonment, physical or moral violence, sequestration, sale, sexual abuse, labor or economic exploitation, and dangerous work. They will also enjoy the other rights consecrated in the Constitution, the laws, and the international treaties ratified by Colombia.

Article 48 [Amended by Legislative Act No. I of 2005]

Social Security is a public service of obligatory character which will be provided under the direction, coordination and control of the State, subject to the principles of efficiency, universality, and solidarity, in the terms established by the law. The irrenounceable right to Social Security is guaranteed to all inhabitants. The State, with the participation of individuals, shall progressively extend the coverage of Social Security which shall include the provision of services in the form determined by the law. Social Security may be provided by public or private entities, in conformity with the law. The resources of the institutions of Social Security may not be allocated or utilized for purposes different from it. The law shall define the means by which the resources designated for pensions maintain their constant purchasing power. The State will guarantee the rights, [and] the financial sustainability of the Pension System, shall respect the rights acquired with regard to the law and shall assume the payment of the pension debt that in accordance with the law is [of] its responsibility. The laws in pension matters that are adopted subsequent to the entry into force of this Legislative Act, shall assure the financial sustainability of that established in it. Without prejudice to the discounts, deductions and attachments [embargos] to pensions ordered in accordance with the law, for no reason may it [the State] no longer pay, or freeze or reduce the value of the allowance of the pensions recognized in accordance with the law.

Article 49 [Amended by Legislative Act No. 2 of 2009]

Attention to health and environmental sanitation are public services [of the] responsibility of the State. The access to services of promotion, protection and recovery of health are guaranteed to all persons. It corresponds to the State to organize, direct and regulate the provision of health services to the inhabitants and of [services of] environmental sanitation in accordance with the principles (p.305) of efficiency, universality and solidarity. Also, to establish policies for the provision of health services by private entities, and to exercise supervision and control [over them]. Likewise, to establish the competences of the Nation, the territorial entities and individuals and to determine the contributions of [their] responsibility in the terms and conditions specified in the law. Health services shall be organized in a decentralized manner, by level of care [atencion] and with participation of the community. The law shall specify the terms under which basic care for all inhabitants will be gratuitous and obligatory. Every person has the duty to provide for [procurar] comprehensive attention to their health and to [that] of their community.

Article 51

All Colombians have the right to decent [digna] housing. The State shall specify the conditions necessary to make this right effective and shall promote housing plans of social interest, appropriate systems of long-term financing, and associative forms of execution of these housing programs.

Article 86

Every person has [recourse to] the action of protection [accion de tutela] to claim before the judges, at any time or place, through a preferential and summary proceeding, for themselves or by whoever acts in their name, the immediate protection of their fundamental constitutional rights whenever these [are] consequently damaged or threatened by the action or omission of any public authority. The protection [proteccion] will consist of an order so that [the party] from whom the protection [tutela] is solicited, acts or refrains from it. The decision, which must be of immediate compliance, may be challenged before the competent judge, and in any case, the latter may return it to the Constitutional Court for its subsequent [eventual] revision. This action will proceed only when the affected [party] does not dispose of another means of judicial defense, except when the former is used as a transitory mechanism to avoid an irreversible harm. In no case may more than ten days elapse between the request for protection [tutela] and its resolution. The law shall establish the cases in which the action of protection [tutela] proceeds against individuals entrusted with the provision of a public service or whose conduct affects seriously and directly the collective interest, or in respect of whom the applicant finds himself in a state of subordination or defenselessness.

Article 93 [Amended by Legislative Act No. 2 of 2001]

International treaties and agreements ratified by the Congress that recognize human rights and that prohibit their limitation in the states of emergency, have prevalence in the internal order. The rights and duties consecrated in (p.306) this Charter will be interpreted in conformity with international treaties on human rights ratified by Colombia.

Basic Law of Germany 1949

Article 1

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.

Article 3

(1) All persons shall be equal before the law. (2) Men and women shall have equal rights. The state shall promote the actual implementation of equal rights for women and men and take steps to eliminate disadvantages that now exist. (3) No person shall be favoured or disfavoured because of sex, parentage, race, language, homeland and origin, faith, or religious or political opinions. No person shall be disfavoured because of disability.

Article 19

(1) Insofar as, under this Basic Law, a basic right may be restricted by or pursuant to a law, such law must apply generally and not merely to a single case. In addition, the law must specify the basic right affected and the Article in which it appears. (2) In no case may the essence of a basic right be affected. (3) The basic rights shall also apply to domestic artificial persons to the extent that the nature of such rights permits. (4) Should any person’s rights be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts.

Article 20

  1. 1) The Federal Republic of Germany is a democratic and social federal state.

Constitution of Ghana 1992

Chapter Six The Directive Principles of State Policy

Article 34

(1) The Directive Principles of State Policy contained in this Chapter shall guide all citizens, Parliament, the President, the Judiciary, the Council of State, the Cabinet, political parties, and other bodies and persons in applying or interpreting this Constitution or any other law and in taking and implementing any policy decisions, for the establishment of a just and free society. (2) The President shall report to Parliament at least once a year all the steps taken to (p.307) ensure the realization of the policy objectives contained in this Chapter; and, in particular, the realization of basic human rights, a healthy economy, the right to work, the right to good health care and the right to education.

Constitution of India 1950

Part III Fundamental Rights

Article 21

No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 21A

The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.

Part IV Directive Principles Of State Policy

Article 37

The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

Article 38

(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

Article 39

The State shall, in particular, direct its policy towards securing - (a) that the citizens, men and women equally, have the right to an adequate means of livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health (p.308) and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 39A

The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Article 41

The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 45

The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

Article 47

The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.

Constitution of the United States 1789

Amendment XIV

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(p.309) Human Rights Act 1998 of the United Kingdom

Section 3

(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Section 4

(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.…

(6) A declaration under this section (“a declaration of incompatibility”)-- (a) does not affect the validity, continuing operation or enforcement of the provision in respect of which it is given; and (b) is not binding on the parties to the proceedings in which it is made.

Section 19

(1) A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second Reading of the Bill- (a) make a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights (“a statement of compatibility”); or (b) make a statement to the effect that although he is unable to make a statement of compatibility the government nevertheless wishes the House to proceed with the Bill. (2) The statement must be in writing and be published in such manner as the Minister making it considers appropriate.