International investment arbitration is at crossroads with socio-economic rights. IIA is a fragmented regime where foreign investor could claim compensation for damages because the regulatory capacity of the State. Since the International Covenant of Economic Social and Cultural Rights entry into force an increasing set of standards creates a realm of global constitutional governance. This paper goal is to find international legal ways to connect the IESR advocacy and ICSID investment arbitration. In that way it tries to develop a set of global legal standards to be applied by arbitrators as a part of a transnational legal order that balances the discretionary interpretative power of the arbitration community and the necessity to protect people rights. In such a fashion the paper analyzes World Bank perspective regarding rights and economic development and examines how the IESR global set of rules are part of a transnational legal order that constrains the power of arbitrators.
This paper examines the role that cities play for the enforcement of social rights in the South, through an empirical study of the outcomes of a landmark dialogical justice case of the Colombian Court: the waste pickers' case (T- 291/09). This case sought to ensure livelihoods for hundreds of waste pickers affected by the closure of the major dump in Cali, ordering municipal authorities to design a public policy on waste-pickers through a participatory process involving different actors. Although the paper defends dialogical justice approaches, it also illustrates its working challenges at the municipal level. The waste pickers' case presents a story of limited enforcement, backlash, capturing of the waste pickers' voices and, in general, of the inability of the Court to mediate the 'dialogue' among stakeholders. By contrasting the waste pickers' case to other cases, the paper draws attention to overlooked challenges that are present in intermediate cities for SERs enforcement.
Colombia Constitutional Court has protected the right to health through two type of decisions. The first is the result of individual litigation and the judicial remedy consist in ordering the provision of health care to litigants. In these cases, the health care service demanded may be very expensive and not previously financed by administrative authorities. In the second type of decisions, the Court identifies structural health system failures and looks for extending the effects of his decision beyond the litigants. In these cases, the Court orders to administrative authority measures that fix the failures of the health system that causes the violations of right to health, and the Court monitors orders compliance. I argue that this coexistence is problematic and the progressing the fulfillment of the structural order should limit the role of the Court in the first type of cases, especially when it is not possible to universalize the health service demanded in the short term.
In recent decisions, the Colombian Court has used the concept of resilience to define the vulnerability condition of a person. State protection duties would only activate when the person, among other conditions, has a low resilience. That is, when the person cannot assume their needs by itself or with the help of third parties. By applying that concept, the relation between state protection duties and the person shifts from a right centered to an assistance relation. Under the first, everyone has a right to be protected by states and vulnerability activates special protection duties. Under the second, only vulnerable persons can demand state protection. Social rights, in the first model, are understood as ordinary state duties, while in the second, they are understood as extraordinary duties. In the first model the person should be empowered, but in the second the state aim is the empowerment of the community. It´s a shift from an individualistic-rights to a collective-rights approach.
In recent years, the Colombian Constitutional Court has introduced the idea of meaningful dialogue (or meaningful engagement) as a remedy for the protection of Social Rights. The new notion has been introduced particularly in cases that involve the right to education. This paper develops a critical perspective against this new constitutional jurisprudence following the development of the concept of meaningful engagement in the South African Constitutional Court, in cases like Olivia Road and Joe Slovo. Specifically, the paper questions the Colombian Constitutional Court for (1) the type of cases in which it has proposed the remedy; (2) the conditions that the Court has established for the dialogue; (3) the absence of monitoring and supervision mechanisms. And in general, because this meaningful dialogue has little potential to effectively protect economic and social rights. Particularly, when the new notion is used as a stand-alone remedy
The action of the CCC in the past 10 years has expanded to some areas of the law that are not usually under the lenses of constitutionalists such as civil law. Given the transitional context created by the Law of Victims and Land Restitution in 2011 and the peace agreement between the government and the FARC, the Court has intervened in policy areas directly related to property rights over land. This paper analyzes how the Court has shaped and redefined property relations through the revision of policies through which people can have access to the land. The analysis of the decisions of the CCC shows that constitutional jurisprudence is changing the historical balance between social actors regarding access to land and tenure security over land. The article depicts and describe the state of property rights over rural lands, identity the interventions of the Court and construct a framework to understand how distribution and legal certainty are put in balance in the constitutional review.