This dissertation discusses ways to advance social rights, considering the significant gap between their ambitious normative recognition and their poor implementation in practice. It presents some of the challenges that social rights typically face and explores ways to overcome them, noting the role that courts can play in triggering solutions. The project zooms into the connection between social rights and administrative institutions to argue that, while often under-discussed, social rights’ fulfillment is largely dependent on administrative law and administrative action. The dissertation further claims that “canonical” administrative law, however, is unfit to facilitate the fulfillment of social rights and discusses possible ways to rethink discrete administrative institutions. While the dissertation focuses on Latin America, its arguments are of relevance for other parts of the world. The project is structured around two case studies of social rights litigation in Argentina (Chapter 2) and Colombia (Chapter 3), which triggered relevant innovations that can help respond to frequent challenges around social rights. Both cases involve similar circumstances of historical unfulfillment of human rights, particularly the rights to a healthy environment, health, and housing. They also illustrate similar capacity constraints in relevant administrative institutions (such as norms and staff volatility and bureaucratic fragmentation). Both cases represent what has been often called “structural litigation ” and were decided in similar legal backgrounds.
The case studies are as detailed as possible, in an effort to supplement long standing theoretical debates on social rights with a nuanced analysis of the results of cases on the ground (as even though recent research has focused on empirical assessments, most relevant scholarship uses normative and doctrinal approaches ). The research conducted for this project therefore involved reviewing judicial records, legislation, press coverage and other secondary sources; and for the Argentine case, talking to public officials, judicial employees, non-governmental organizations, and other key actors, visiting the river basin and courts’ offices, and filing freedom of information requests. My research perspective is also informed by my previous work with different non-governmental organizations devoted to advancing social rights. I therefore came to this project with practical knowledge of how relevant institutions, mainly in Argentina, function in practice, with the consequent subjectivity of a practitioner from the Global South.
The dissertation connects to existing literature on social rights and on the reform of administrative law. It also speaks, more indirectly, to ongoing conversations on effective government, State capacity, the growth of the administrative state, and structural litigation. Throughout the dissertation, I use a common analytical framework: experimentalism. I describe this framework in detail in the Introduction to this dissertation.
When confronted with existing scholarship, the dissertation shows that many concerns around social rights in general, and social rights’ litigation in particular, do not necessarily play out in practice as traditional literature would anticipate. For example, the case studies prove that litigation does not necessarily exclude more confrontational alternatives for rights-claiming, and that middle class plaintiffs are not always prioritized in courts’ work.
Both cases essentially show a decision-making model that is court-led but places responsibilities for policy making on local administrations. Under this model, courts set goals that administrations then need to pursue by themselves, with strong court oversight. As such, the model moves beyond the dichotomy between judicial abdication and judicial usurpation that traditional literature routinely describes. Traditional models of social rights adjudication also suggest a stark division between approaches based on the substance of rights and other based on procedures that the dissertation proves to be more nuanced, as in the case studies courts define some substance of rights, but also set strong procedures directed precisely at further defining rights’ substance.
Importantly, this alternative model shows how courts intervention can lead to improved institutional capacities (directed mainly at increasing transparency and coordination) in responsible administrative entities. The cases finally show the barriers that traditional administrative law can create for the innovations needed to advance social rights. The last Chapter of the dissertation consequently explores ways to reimagine administrative law, to promote principles and institutions which are more aligned with the demands of social rights, such as recognizing informal administrative action and promoting administrative coordination.
| Identifer | oai:union.ndltd.org:columbia.edu/oai:academiccommons.columbia.edu:10.7916/wx66-r090 |
| Date | January 2024 |
| Creators | Mamberti, Maria Emilia |
| Source Sets | Columbia University |
| Language | English |
| Detected Language | English |
| Type | Theses |
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