Law, Democracy and the Socio-Economic Rights

The problem of implementation deficits may be an inherent trait for human rights in general, including socio-economic rights. In this regard, much commentary on human rights in developing countries, particularly written by international human rights NGOs, as well as from the rights-based approaches camps, has suggested that the problem lies primarily in inadequate protection for human rights in countries’ legal frameworks. Here, many view law, accepted, ratified and/or codified as a powerful force for change. The focus has been on identifying legislative and policy gaps. But what explains countries’ slow and uneven progress in implementing socio-economic rights?

An article written by Andrew Rosser and Maryke van Diermen critically engages with this topic by arguing that the most important determinants of socio-economic rights outcomes in developing countries, such as Indonesia, lie in the political and social, rather than the legal realm. Indonesian average score on the Social and Economic Rights Fulfilment (SERF) Index shows an uneven improvement across socio-economic rights. The country has made significant progress in the rights to education and health but rather less progress in the rights to food, work and housing. The authors argue that the competing elite network over resources and power, such as reflected in the electoral process, has created a persistent obstacle for realising these rights, despite an increasing political and social space claimed and acquired by social movements.

I support this argument but also think that this approach reduces the scale of implementation problems into mere non-fulfillment ones. The implementation of socio-economic rights requires protection as much as fulfillment. And therefore a question is asked: doesn’t legal institutional design matter in how states respect, protect and fulfil these rights? Because what is missing in the argument is how the dynamic between actors affects existing enforcement mechanisms, for instance the role of prosecutorial independence and prosecutorial accountability.

A prosecutorial organ is in charge of the investigation and prosecution of violation of human rights, which makes this institution a key gatekeeper to the courts, thus the protection and realisation of socio-economic rights. Empowered with prosecutorial discretion, a prosecutorial organ dictates what, when, and whom to prosecute. The institutional design of the prosecutorial organ varies across time and across countries, which raises an important question on the discretion to prosecute (i.e., the more accountable a prosecutorial organ is). On this topic, Veronica Michel argues that the less this discretion is shaped by political pressures (i.e., the more independent the prosecutorial organ is), the more likely we will observe the initiation of prosecutions against state agents. For the case of socio-economic rights, this thesis should be tested even in political contexts that appear to be against the rights-based approach to development.

Future research on socio-economic rights should incorporate the interplay between political economy aspects and the role of prosecutorial organs and prosecutorial discretion, as this is pivotal to our understanding of how and when claims are successful or deceased.

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