Morag Goodwin Associate Professor, Tilburg Law School

270 I CON 11 (2013), 261 280 inspired a grassroots movement in which ordinary people are coming together to define and root out corruption both in their localities and at the national level, and it seems still to be gaining momentum. What is problematic for advocates of a humanrights approach is that human rights are conspicuously absent in the movement s motivation and claims (the right to information being a notable exception). Indeed, while the author describes the strengths and weaknesses of the movement s demand for a Lokpal (an Ombudsman-type function) to tackle corruption and of the bill currently under consideration to establish it, he does not mention human rights, or their empowering function, even once. Indeed, it seems to me that the author himself is only rhetorically convinced of the centrality of human rights in fighting corruption. Where the book is at its best in the practical parts in the second half of the book human rights feature little beyond the rhetorical in his consideration of the measures that India needs to take. For example, human rights hardly appear in the analysis of the way forward (chapter 6 and the Postscript), except to note that anti-corruption measures can violate human rights (p. 194). Far from seeing human rights as a magic wand, the author details each difficult and nitty-gritty step that Indian legislators need to take to make progress. What one imagines the author might see as a role for human rights here is in providing legitimacy to anti-corruption initiatives, which he states as being one of the biggest challenges for India. That may well be an argument worth making, and certainly more so than earlier unsubstantiated assertions about empowerment assertions not recalled in the second part of the book. The Anna Hazare movement is certainly not evidence that human rights are not empowering; it does, however, suggest that the use of human rights to describe corruption is not necessary to convince the poor that corrupt practices are harmful to their interests or to empower them to move against corruption. The question therefore remains: what does linking human rights with corruption add? It is not answered by this book at least, not directly. The second part of the book suggests a way in which human rights might be a useful legitimizing narrative for anti-corruption measures, but this is a lot less ambitious than the claims made in the first half of the book. In this second part, the author argues for the role that scholars have to play in motivating and guiding efforts to fight corruption. I am not opposed to scholar-activists indeed, I would be a hypocrite if I were but here the critical mind of the scholar has been overshadowed by the faith of the activist. For readers interested in practical legislative and institutional measures to combat corruption at the national level, this study provides a sensible template. Those looking for a reason to accept the increasingly frequent assertions of a connection between human rights and corruption must continue the wait. As I have tried to show, this is a book for the believer. Morag Goodwin Associate Professor, Tilburg Law School Email: m.e.a.goodwin@tilburguniversity.edu doi:10.1093/icon/mos052 Sandra Liebenberg. Socio-Economic Rights. Adjudication under a Transformative Constitution. Claremont: Juta, 2010. xxv + 541 pages. US$ 75. ISBN: 9780702184802. Every so often time and place and effort converge to bring about something transformative in law s promise to justice. And every so often, a discrete book stands in to document, theorize, contextualize, and even help to create this shift. If South Africa s entrenchment of justiciable economic and social rights represents such a legal transformation, Sandra Liebenberg s Socio-Economic Rights: Adjudication under a Transformative Constitution has all the makings of such a book. Of course,

Book Reviews 271 South Africa s post-apartheid Constitution of 1996 has produced a rich literature across many fields of law, 1 but this book is distinct in the way that it focuses on the constitutional ambition to realize economic and social rights against a backdrop of endemic poverty and inequality, a theme that is used to orient the broader court-led legal changes that are now authorized and mandated under these provisions. Perhaps unexpectedly, in light of this undertaking, this is a lawyer s book. Liebenberg provides a close engagement with South Africa s evolving case law, being attentive to both its aims and its limitations. One quickly perceives the two major challenges that face the South African Constitutional Court in being called upon to adjudicate economic and social rights: poverty (how best to address it) and democracy (how best to respect it). In 541 pages, Liebenberg provides a history of the drafting of economic and social rights, of which she was, as technical advisor to the Constitutional Assembly s Theme Committee on Fundamental Rights, a participant. She presents a tour of the current models, both theoretical and institutional, for economic and social rights entrenchment and enforcement. She describes the emergence of certain fixed points in the South African Constitutional Court s economic and social rights jurisprudence: its original approach to reasonableness review, which is given extensive treatment in chapter 4, and to the forms of constitutional redress which Liebenberg labels responsive remedies, in the highly instructive chapter 8. In these two aspects of its jurisprudence, the Constitutional Court has engaged in a standards-based assessment of economic and social rights complaints, drawing from constitutional and administrative law examples of scrutiny and reasoning, and disparate doctrines from fields such as alternative dispute resolution and labor law. 1 See, e.g., Albie Sachs, The Strange Alchemy of Life and Law (2009) (a prominent example from South Africa); Mark S. Kende, Constitutional Rights in Two Worlds: South Africa and the United States (2009) (an explicitly comparative example). This has been achieved with close reference to international and comparative law, as required by the Constitution ( 39), and with an inclusiveness of sources that Adjudication under a Transformative Constitution seeks to document and to emulate. Substantively, Liebenberg provides a study of the constitutional rights to have access to education ( 29), children s rights ( 28), and detainees rights ( 35). Chapter 5 outlines the main conceptual challenges to the effective operation of these rights (such as the language dimensions of education, or the family s role in protecting children s rights), and the Constitutional Court s current approaches to addressing them. Liebenberg also describes the right to access health care, social security and water ( 27), through the lens of reasonableness review, although she does not entertain the different legal challenges that are raised by these disparate rights and their at times distinctive beneficiaries (and constituencies). 2 It is in her treatment of the right to housing and evictions cases (under 26) that her analysis (like the Constitutional Court s jurisprudence) signals the greatest development that the constitutionalization of economic and social rights has effected in South African law. Her close analysis of a new paradigm for evictions law and of socio-economic rights in private law, in chapters 6 and 7, indicates how the right to access housing can change the dynamics of a government s housing policy, as well as the legal options available for private mortgages, tenancies and property investment decisions. To those seeking a prediction of whether economic and social rights can provide a solution to increasing inequality and mass poverty, this book offers no answer. Adjudication 2 A proposal to separate the application of such rights in South Africa, especially the right to health care, has been made by David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio-Economic Rights (2007). See also Health & Democracy: A Guide to Human Rights, Health Law and Policy in Post-Apartheid South Africa (Adila Hassim, Mark Heywood & Jonathan Berger eds., 2007).

272 I CON 11 (2013), 261 280 under a Transformative Constitution will not tell us whether the Occupy Wall Street or antiausterity movements will adopt the economic and social rights discourse, or whether such a strategy would likely bring success. It will not tell us whether global efforts to curb growing inequality, within the United Nations human rights system, the Millennium Development Goals infrastructure, the World Trade Organization, or the World Bank and International Monetary Fund, will benefit from a careful adoption of economic and social rights. It will not even tell us whether South Africa s laudable constitutional aims will succeed. Nonetheless, this book certainly provides some informed clues about these questions. For the observers of current fiscal policy protests, Liebenberg s study of the struggle for recognition in chapter 1 is illuminating. In providing the history and context of the inclusion of justiciable economic and social rights in the South African Constitution, from the anti-apartheid struggle to the current apartheid legacy, this chapter emphasizes the social dynamics from which economic and social rights emerge. Indeed, the entrenchment of economic and social rights followed an uncertain path, as opposition was taken, for distinct reasons, by commentators on both the right and the left. 3 While a consensus towards economic and social rights, as a path to safeguard democracy and equality, emerged, this was not from a straightforward application of the anti-apartheid Freedom Charter or the influence of international human rights law. Liebenberg s delicate treatment of the nonlinear acceptance of such rights is suggestive of the current uncertainties, as well as potential resolutions, of current protest movements. For the observers of global efforts to address inequality and extreme poverty, her analysis of the innovation of reasonableness review provides useful instructions for other adjudicatory or supervisory arrangements, whether for international courts and 3 For the dissent from the left, see Dennis Davis, The Case Against Inclusion of Socio-Economic Rights in a Bill of Rights Except as Directive Principles, 8 S. Afr. J. Hum. Rts 475 (1992). committees, or for national courts, like those in Latin America, South Asia, and other jurisdictions, which are increasingly embracing economic and social rights. 4 The United Nations Committee on Economic, Social and Cultural Rights, in particular, will benefit from the lessons of South Africa as it begins to consider communications under the new Optional Protocol on Economic, Social and Cultural Rights, now ratified by eight State Parties and only two ratifications short of entry into force. 5 As Liebenberg presents it, reasonableness review is a judicial approach that combines seemingly transparent criteria with normative flexibility. In asking whether governments have behaved reasonably, the approach inquires into how programs are resourced, how they are coordinated, how they balance short, medium and long term needs, and how they respect human dignity (pp. 151 157). She suggests that this standard of review can provide an answer to the quagmires of progressive realization and non-retrogression, and to the conundrums of the so-called minimum core. Indeed, that the Optional Protocol itself names reasonableness as a relevant standard, 6 rather than minimum core obligations or other thresholds, suggests that South Africa s doctrinal experience will 4 See, e.g., the edited collections, Exploring Social Rights: Between Theory and Practice (Daphne Barak-Erez & Aeyal M. Gross eds., 2007); Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (Varun Gauri & Daniel M. Brinks eds., 2008); Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Roberto Gargarella, Pilar Domingo & Theunis Roux eds., 2006). 5 Optional Protocol to the International Covenant of Economic, Social and Cultural Rights, G.A. Res. 63/117, UN Doc. A/RES/63/117 (10 December 2008). Its eight State Parties include Argentina, Bolivia, Bosnia and Herzogovina, Ecuador, El Salvador, Mongolia, Slovakia, and Spain. There are 40 signatories (as of May 28, 2012), http://treaties.un.org/pages/ ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 3-a&chapter=4&lang=en. 6 Id. art. 8(4).

Book Reviews 273 provide an ongoing reference point for this international body. 7 The comparative lessons will carry different weight and meaning in different domestic systems. Already, South Africa has become an oft-cited comparator in the literature on justiciability. 8 More than showing the potential of what can be done, South Africa can also trigger reflection and commentary on the variety of paths that judges can follow. India, for example, is a much-cited jurisdiction in which many economic and social rights, constitutionalized as directive principles of state policy, have become justiciable for all intents and purposes. The Indian Supreme Court s role, which this reviewer has characterized elsewhere as engaged in character, replicates many of the creative instances of judicial involvement documented in South Africa. 9 The Colombian Constitutional Court, on the other hand, has engaged in far more managerial procedures in adjudicating economic and social rights, marking a distance between two approaches with common democratic goals. 10 Reasonableness review appears against these examples as a somewhat relaxed, but 7 See, e.g., Bruce Porter, The Reasonableness of Article 8(4) Adjudicating Claims from the Margins, 27 Nordic J. Hum. Rts 39, 49ff (2009) (documenting the drafting history of the Optional Protocol, and the influence of the Grootboom precedent). 8 See, e.g., Cass R. Sunstein, A Second Bill of Rights: FDR s Unfinished Revolution and Why We Need it More Than Ever (2004); Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (2008) 9 For an extensive treatment, see Katharine G. Young, Constituting Economic and Social Rights chs 5 7 (2012) (documenting the disparate juridical approaches of South Africa, Colombia, India, and the United Kingdom). 10 Id, ch. 7. See also Alicia Ely Yamin, Oscar Parra- Vera & Camila Gianella, Judicial Protection of the Right to Health: An Elusive Promise?, in Litigating Health Rights: Can Courts Bring More Justice to Health? 103 (Alicia Ely Yamin and Siri Gloppen eds., 2011) (describing integration of a core obligation in health care in Colombia). nevertheless proportionate mode of ensuring that duties to respect and protect these rights are fulfilled. 11 Finally, Liebenberg shines a more considered light on South African constitutional trends over its 15 year history, both the good and the bad. 12 We are given a clearer line from the famous Grootboom case, in which the failure to cater for a homeless community was held to contravene the right to access housing, 13 to the less well-known case of Jaftha, in which the Court held that defaults on housing mortgages could not be triggered (or at least, any evictions enforced) by a mere failure to pay a petty debt. 14 Other lesser known, but equally important, private law and property cases, lead up to the striking recent case of Maphango (decided after the book s publication), in which the right to housing was held to provide a safeguard against landlord efforts to upgrade, escalate rent, or alternatively evict. 15 Liebenberg s analysis of the right to housing gives context to this development, which we may see repeated in other economies under stress. On the other side, we are shown the parallels between the Constitutional Court s insistent stand against a recalcitrant government which had obstructed access to antiret- 11 For general praise of the Constitutional Court s deployment of reasonableness, see Wojciech Sadurski, Reasonableness and Value Pluralism in Law and Politics, in Reasonableness in Law 129, 135 (Giorgio Bongiovanni, Giovanni Sartor & Chiara Valentini eds., 2009). 12 For critique of a South African obsession in this field, see David Landau, The Reality of Social Rights Enforcement, 53 Harv. Int l L.J. 189 (2012). For a general statement of the cherry-picking enterprise in comparative constitutional law, see Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am. J. Comp. L. 125 (2005). 13 Government of the Republic of South Africa v. Grootboom 2001 (1) SA 46 (CC). 14 Jaftha v. Schoeman, Van Rooyen v. Stoltz 2005 (2) SA 140 (CC). 15 Maphango v. Aengus Lifestyle Properties (Pty Ltd) Case CCT 57/11 [2012] ZACC 2 (March 13, 2012) (CC).

274 I CON 11 (2013), 261 280 rovirals for pregnant women in the Treatment Action Campaign case, 16 to the less insistent stand, using the same doctrinal criteria of reasonableness review, against commodified prepaid water meters in Mazibuko, which were ultimately deemed constitutional. 17 In Treatment Action Campaign, the Court had insisted on a rigorous scrutiny of the government s reasons, holding these up against countering professional and scientific views as grounds for a lack of reasonableness; in Mazibuko, the Court was far readier to accept the government s marketizing approach to the appropriate distribution of public goods, finding that the foreseeable impacts of such policy on certain poor populations were nevertheless reasonable. In her postscript on the latter case, Liebenberg decries the Constitutional Court s process-oriented retreat, its a-contextual and formalist application of equality, and its selective rereading (and diminishment) of its earlier doctrinal stand in Treatment Action Campaign (pp. 466 480). Arguably, in the careful steps of Maphango and the deference in Mazibuko, cases in which the fairness of a profit-oriented landlord investment was queried as against the needs of poor tenants, on the one hand, and in which the efficiency-oriented scheme for rationalizing water use was accepted, on the other, we can see the uncomfortable fit between economic and social rights and liberal markets. These tensions are brought into much higher relief than in the famous Grootboom and Treatment Action Campaign cases of the last decade, which involved less nuanced redistributive decisions of government. In conclusion, this book will appeal to readers in constitutional law and theory, international human rights law, and administrative law. Indeed, Adjudication under a Transformative Constitution is a perfect example of how these fields are so rapidly converging, as they develop in new directions. 16 Minister of Health v. Treatment Action Campaign 2002 (5) SA 721 (CC). 17 Mazibuko v. The City of Johannesburg 2010 (4) SA 1 (CC). Katharine G. Young Associate Professor of Law, Australian National University College of Law Email: kyoung@post.harvard.edu doi:10.1093/icon/mos055 Ademola Abass (ed.). Protecting Human Security in Africa. Oxford University Press, 2010. 400 pages. $98.50. ISBN: 9780199578986. After more than a decade of intense dealings with state security triggered by 9/11, the book under review refreshingly reconceives the notion of security. The contributors to this edited collection include many experts in the field of security studies and international law. The authors are mostly academics or practitioners with backgrounds as academics. Ademola Abass, the editor, is currently professor of international law and international organizations at Brunel University. The book engages with various ongoing efforts to address threats to human security in Africa. The first part of the book analyses the legal and policy frameworks available for dealing with specific human security threats. The second part of the book focuses on African institutions and mechanisms for protecting and vindicating human security in Africa. The book highlights and describes a fundamental shift in the understanding of security. Ademola Abass writes that for many decades mankind s understanding of security has been clouded by a collective preoccupation with nuclear security. The awareness of human security is a relatively new phenomenon. The term human security first entered the international plane in 1994 when the United Nations Development Programme (UNDP) introduced with it a new way of thinking about security. The shift from a statecentric notion of security to a people-centered notion of security was significant. Whereas the traditional notion of security involved security of territory from external aggression, or as protection of national interests in