Economic and Social Rights
DS Law, H. Lau, & A. Schwartz (eds.). Oxford Handbook of Constitutional Law in Asia. Oxford University Press, Ch. 48, Forthcoming
19 Pages Posted: 4 Jun 2020
Date Written: May 7, 2020
No longer the poor cousin of civil rights, socio-economic rights have steadily found a place in constitutions and jurisprudence across the world. Asia represents, however, a paradox in this development. While the sub-region of South Asia was the site of many early social rights adjudication experiments, East and South-East Asia are only outmatched by Arab States in their reluctance to recognize and judicialize socio-economic rights (and even the right to property). Fitting seamlessly with the region’s embedded mercantilist model of capitalism, it is the most conservative region in the world when it comes to core rights in the workplace – such as the right to strike or fair wage. Courts are held generally on a tight constitutional leash with limited recognition of the judiciary’s competence to enforce socio-economic rights and judges have been less willing than their South Asian counterparts to break constitutional lines. While some features are consistent across the entire region, such as hostility to international oversight of socio-economic rights, there is significant variation in terms of ESR entrenchment and interpretation. In this chapter, we analyze the macro patterns of constitutional recognition and judicial posture across the region (mostly with the help of the TIESR database) and some of the key patterns and puzzles in constitutional enforcement across the region. We conclude with some reflections on the impact of constitutionalising ESR rights in the region in light of the existing empirical evidence.
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