The even utilization of basic freedoms to non-state entertainers (NSA) is an
advancing and challenged lawful region both relatively and at the worldwide
level. Considering this, the article talks about systems by which NSA who
disregard sacred financial and social rights (ESR) might be considered
straightforwardly responsible by ESR-holders. Its focal center is the even use
of established ESR assurances to private connections, where neither one of the
parties has a state/public capacity or state nexus.
The article audits
improvements in two homegrown sacred frameworks, those of Ireland and South
Africa, so as to show and clarify the various methodologies that have been
embraced to the issue of horizontality by both the protected drafters and the
courts in those purviews. It utilizes this near examination to investigate a
large number of the key regularizing protests that have generally been raised
under liberal sacred hypothesis according to the utilization of common freedoms
commitments and those forced by ESR specifically to NSA.
The article closes with
an assessment of the adequacy of the Irish and South African lawful models and
approaches as far as holding NSA obligated for infringement of ESR, illustrating
key exercises that these public encounters have for the immediate flat
utilization of ESR at the worldwide level.
Across the globe, providers of key goods and services that relate to economic
and social rights (ESR) are ever more likely to be non-state actors (NSA),1 while
the power and influence of NSA such as multinational corporations, international
financial institutions, and non-governmental organizations are increasing. This
reality has led to growing concern, internationally and domestically, about the
role of such actors in relation to the realization of ESR, including the impact
that their actions (and omissions to act) may have on the enjoyment of such
This article will discuss mechanisms by which NSA who violate constitutional ESR
may be held directly accountable by ESR holders. Its central focus will be the
direct horizontal application of constitutional ESR protections to private
relationships, where neither party has a state/public function or state nexus.
We will review developments in two domestic constitutional systems, those of
Ireland and South Africa, in order to demonstrate the different approaches that
have been adopted to the issue of horizontality by both the drafters of the
constitutions and the courts in those jurisdictions.
This comparative analysis
will explore many of the key normative objections that have traditionally been
raised under liberal constitutional theory in relation to the application of
human rights obligations—and those imposed by ESR in particular—to non-state
These include alleged objections from democracy
and claims about the
impact of the direct horizontal application of rights on the
values of liberty, autonomy, and privacy.3 We evaluate the effectiveness of
these domestic legal models and approaches in terms of holding NSA liable for
violations of ESR, drawing conclusions with regard to lessons that the successes
and shortcomings of the Irish and South African constitutional experiences have
for the direct horizontal application of ESR at the international level.4
The idea of holding NSA accountable for rights violations is highly topical, and
there is a growing body of literature on the subject, much of which refers to
the South African experience and a small amount of which addresses the Irish
jurisprudence, albeit frequently only in a cursory way.5
So far, however, there
has been no systematic comparison of these legal orders with regard to the
horizontal application of constitutional ESR. Nor has the horizontal application
of constitutional ESR (as opposed to constitutional rights generally) in Irish
constitutional law been fully explored. This article seeks to address these
The article also contributes to broader debates about the extent to
which ESR can—or should—be horizontally applicable, directly addressing the
question of the horizontality of the positive obligations imposed by ESR—a
debate that has not yet been fully played out either in the courts or in
academic literature. Finally, the piece feeds into the evolving discussion on
the direct horizontal application of ESR at the international level,
highlighting how the South African and Irish experiences can and should
influence developments in this area.
There are other reasons why the survey proposed here is valuable and necessary.
First, while the Irish Constitution is the oldest in Europe and largely predates
the international discourses on human rights (including ESR) and horizontality,
the South African Constitution of 1996 was heavily (and self-consciously)
influenced by both of those factors. Second, in contrast to the very limited
recognition of ESR under the Irish Constitution, the South African Constitution
enshrines a broad range of ESR.
Third, unlike the Irish position, where horizontal application occurred as a
result of judicial decision-making as opposed to express textual prescription,
the drafters of the South African 1996 Constitution explicitly embraced
horizontality. A consideration of these two constitutional experiences therefore
serves as an excellent framework for a discussion of both the theory and
practice of the direct horizontal application of ESR.
In addition to
highlighting precisely where the Irish and the South African Courts stand on the
issue of the horizontal application of ESR and explaining why this is so, it is
crucial that attention should be focused on the forthcoming developments in this
field in those jurisdictions. This is especially important
given the implications that the local
protection of human rights may have for
their global protection in this context.
Horizontality and ESR
When researching in this area, one is immediately struck by the similarity
between the arguments made against the direct horizontal application of
human/constitutional rights and those made in relation to the
constitutionalization or adjudication of legally binding ESR. One
circumstantial reason for this is the fact that such assertions are frequently
proffered in the context of discussions of the South African Constitution,
which provides for both horizontality and ESR.
The second, weightier, reason is
that giving effect to horizontality and ESR by the courts will frequently
require redistribution and the alteration of the status quo both in terms of
the allocation of power and other resources and in terms of pre-existing legal
frameworks and relationships.
Thus, both ESR and horizontality raise similar
concerns for those who argue that decisions in relation to distribution and
law-making should be the sole preserve of democratically
A key element of both the Irish and the South African experiences is a rejection
of the notion that the judicial horizontal application of ESR is absolutely
barred as it requires a political choice which should be taken by the elected
branches of government, rather than a judicial elite. This relates to the notion
of the counter-majoritarian objection to what is perceived as excessive
judicial activity—a central aspect of liberal constitutional theory.6
opposition to the horizontal application of rights on the grounds that such
activity is undemocratic is generally symptomatic of a more fundamental
discomfiture with the broader conception of judicial review of the action of
politically accountable representatives per se, rather than being specific to ESR adjudication or the horizontality context.7 In this context, it is worth
recalling that where a constitution has been adopted by an electorate (as the
Irish Constitution was) or by a constitutional assembly (as occurred in South
Africa), that instrument and its provisions represent a political choice by the
Where, as in the South African case, the Constitution expressly
contains a commitment to horizontality, it cannot be argued that the application
of that provision by the courts in appropriate circumstances is illegitimate.
This is particularly so where, as under both the Irish and the South African
constitutional frameworks, it is accepted that the courts are the final arbiters
of the constitution.9
The issue is admittedly more complex where, as in
Ireland, the horizontal application of constitutional rights has occurred as a
result of judicial interpretation of constitutional provisions that make no
explicit reference to horizontality. However, if, as in the Irish context, one
accepts that the courts may legitimately identify unenunciated/implied rights
and principles, there can be
no absolute objection to the courts doing so in the context of horizontal
application in particular.
Nor is the objection to judicial horizontal application on the basis that it
entails judicial law-making
10(and hence violates a formal and contested)
conception of the separation of powers according to which the legislature makes
law and the courts apply that law to specific fact situations in the context of
resolving disputes between parties)11 exclusive to debates about horizontal
While the horizontal application of rights by judges certainly
seems to offer broad scope for judicial law-making, the same is true where the
courts are involved in vertical application of constitutional rights against the
state and its actors or indeed any situation in which courts delineate the
precise content and scope of constitutional rights which are expressed in a
Admittedly, such judicial law-making may be more likely in the
context of horizontal application of constitutional rights due to the fact that
constitutional guarantees have traditionally been perceived as, and formulated
in terms of, determining relationships between states and citizens, rather than
those between citizens. Crucially, however, the difference here is one of
degree, rather than of principle. Hence, horizontality is not necessarily
incompatible with the presumptions underlying liberal constitutional theory.
Nor will such judicial law-making, where it occurs, necessarily result in the
disempowerment of the legislature when it comes to regulating the relationships
between private citizens. The fact that the courts may in some circumstances
hold that rights have horizontal application (and the dearth of cases involving
such a finding in the South African context since 1997 as well as experiences in
jurisdictions such as Germany, Canada and Colombia would seem to indicate that
the courts will not rush to do so)12 will not serve to prevent legislatures from
spelling out the horizontal scope of the rights guarantees in legislation.13
Before moving on to consider the Irish and South African models of horizontal
application in practice, it is important to address (albeit briefly) objections
to the horizontality of ESR that are founded on the alleged relative
institutional incapacity of the courts to apply ESR horizontally.14 Similar
arguments in relation to judicial capacity have frequently been raised in
debates surrounding the constitutionalization of legally binding ESR.15
growing recognition, however, that such institutional concerns are frequently
overstated and there are a range of models, mechanisms and remedies that courts
can employ to ensure the effective adjudication of ESR.16 There is no reason to
assume that the same is not the case with regard to horizontality. This is
particularly so given courts' proven ability to deal competently both with
vertical ESR cases and a range of different, complex private law actions
Furthermore, in a system of constitutional supremacy such as those in South
Africa and Ireland under which courts are mandated to uphold the provisions of a
Constitution, it is unacceptable for them to refuse to meet their obligation to
give effect to constitutional rights and principles—including the horizontal
application of ESR where relevant—on the grounds of alleged (as opposed to
clearly established) incapacity.
The fact that other bodies are better placed to
make policy decisions, does not mean that a court can avoid deciding policy
questions (such as those that allegedly arise in cases involving ESR and/or
horizontal effect) where such questions coincide with questions of
Horizontal application of ESR—two national experiences
Before beginning a consideration of specific domestic experiences, it is
important to differentiate between different models of constitutional
protection against rights violations caused by private actors.Under the
traditional constitutional model— the vertical
apply exclusively against the state and its actors—the classic example being the
US Constitution. Under a horizontal model such as those in Malawi, Argentina,
and Ghana, constitutional rights are (at least potentially) directly enforceable
against private actors in some circumstances. In between, there are variants, or
diagonal models, under which constitutional rights have indirect horizontal
This means that whilst constitutional rights cannot be applied directly
to the law governing private relations and are not actionable per se, they may
be relied on directly
or indirectly to influence the interpretation and application of preexisting law.
Indirect horizontal effect
can be either weak
in nature. Under the strong version of indirect effect,
judges may apply conditional protection in a suit between private parties where
one party relies on law which is unconstitutional.
The weak version of indirect
horizontal effect only permits judges to read in constitutional values when
deciding cases between private parties. The Canadian Supreme Court and the
German Federal Constitutional Court have adopted variations of this approach. As
discussed below, constitutional frameworks may contain vertical and horizontal
elements. In addition, they may permit both direct and indirect horizontal
effect. In this article, however, I will focus primarily on direct horizontal
ESR and the Irish Constitutional Framework
The Irish Constitution contains a number of ESR-related provisions of both a
justiciable and non-justiciable nature. Most notably, Article 42 makes provision
for the right to primary education and states that in exceptional cases, where
the parents for physical or moral reasons fail in their duty towards their
children, the State as guardian of the common good, by appropriate means shall
endeavour to supply the place of the parents, but always with due regard for the
natural and imprescriptible rights of the child. This duty necessarily has a
corresponding right, which can be used as the basis of a claim against the
Many of the ESR accorded under the Irish Constitution are unenumerated
personal rights, which are primarily guaranteed under Article 40.3.1º of the
Constitution. That provision states that: [t]he State guarantees in its laws to
respect, and, as far as practicable by its laws to defend and vindicate the
personal rights of the citizen (emphasis added).
It is clear that this
provision imposes a duty on the State to take positive action in appropriate
circumstances. Article 40.3.2º provides further that the State shall, in
particular, by its laws protect as best it may from unjust attack and, in the
case of injustice done, vindicate the life, person, good name, and property
rights of every citizen.
As we will see below, in some circumstances, the courts have not limited the
obligation of the State (which they have interpreted broadly in order to include
the courts) to defend and vindicate the personal
rights of citizens
solely to attacks by organs of the State. In Ryan v. The
Attorney General, Justice Kenny in the High Court held that the personal
rights mentioned in Article 40.3.1º are not exhausted by the rights to life,
person, good name and property rights expressly enumerated in Article
40.3.2º, a position confirmed by the Supreme Court in the same
Court-identified, unenumerated (i.e. unwritten) ESR under Article 40.3.1º
include various rights of
the child, the right to bodily integrity, including the right not to have health endangered by the state, and the right to
work or to earn a livelihood. The Irish Courts have therefore been prepared to
recognize that the Constitution protects unenumerated ESR, although only the
first two of these rights have been held to give rise to a positive obligation
on the state.
In terms of other constitutional protections, civil and political rights such as
the right to life (Article 40.3.2º) also have the potential to serve as sources
of ESR or to be applied in such a way as to protect those rights. Furthermore,
Article 45 of the Irish Constitution sets out a number of expressly non-justiciable
directive principles of social policy, which are intended for the general
guidance of the Oireachtas.
Some of these principles have clear implications for
the enjoyment of ESR.35 Article 45 has been used by the Irish courts as an
interpretive instrument with regard to, amongst other things, the identification
of unenumerated personal rights under Article 40.3 of the Constitution.
not, however, been employed innovatively by courts to give effect to ESR in the
way that has occurred with regard to constitutional directive principles in
jurisdictions such as India or Bangladesh. I will not address these directive
principles in any significant detail due to their non-justiciable nature.
In recent years, concerns about the implications of adjudication of ESR for the
separation of powers and the involvement of the courts in what are deemed issues
of distributive justice have resulted in a general reluctance on the part of
Irish courts to recognize and give proper effect to such rights. Not only has
the Supreme Court generally refused to recognize the existence of additional unenumerated ESR, but it has gone so far as to question the existence of ESR
previously identified by other courts.
Furthermore, even where the Supreme Court
has been prepared to hold that the State is in violation of its constitutional ESR-duties, it has refused to grant mandatory orders directing the State to take
steps to comply with its obligations, thereby further weakening the effect of
ESR under the Irish Constitution. Indeed, there is evidence that the Courts are
adopting an ever-more restrictive approach towards the definition of positive
obligations imposed by constitutional ESR—a fact that is particularly evident
in the context of the judicial identification of the level of service provision
which the State is constitutionally obliged to provide under Article 42.4 in the
context of education.
Ireland, ESR, and horizontality: from a bang to a whimper
While the wording of Articles 40.3.1º, 42.4, and 42.5 refers expressly to the
duties of the State to give effect to constitutional rights, the Irish Supreme
Court has made it clear that constitutional rights (including ESR) may have
direct horizontal effect and are not binding on the State alone.41 They have
done so through the development of the constitutional tort, which arises where
an individual's right is interfered with by a third party. The remedies granted
by the courts for such an action include damages and injunctive relief.
The most significant early case dealing with the issue of horizontal application
is that of Meskell v. CIE.
Here the plaintiff's contract of employment was
terminated by the defendant employers. Unlike his fellow employees, he was not
reemployed due to his refusal to accept a special condition of (re)employment
that he be a member of a trade union on the grounds that it infringed his
individual freedom of choice.
This case was argued on the basis of the right to
abstain from joining associations or unions rather than the right to livelihood.
It is thus arguably more appropriately considered to be a civil and political
rights case than an ESR one.
By way of concluding, we will now make some comments in relation to the
effectiveness of the domestic legal models and approaches of the judiciary in
Ireland and South Africa in terms of holding NSA directly liable for violations
of constitutional ESR. This will include suggesting how the efficacy of each
model can be developed and improved. Finally, we highlight the lessons that can
and should be taken from these two domestic experiences by those seeking to
advance the direct horizontal application of ESR at the international level.
This article has shown there to be four key limitations on the potential
effectiveness of the Irish horizontality
model in relation to holding NSA
to account for ESR violations. The first is the refusal of the Irish courts to
interpret constitutional ESR (or any constitutional rights) as imposing positive
obligations on NSA.
Bearing in mind the significance of the positive obligations imposed by ESR, the
failure of the Irish courts to engage with this issue significantly limits their
ability to ensure that NSA will be held to account for violations of every kind
of duty imposed by ESR. Ultimately, if the Irish courts will not address the
positive obligations owed by NSA under the horizontal application of ESR in an
environment of ever-increasing privatization and globalization, this will result
in uneven and ineffective protection of ESR.
The second obstacle to the effectiveness of the Irish model is the Irish courts'
recent reluctance to ensure the enforcement of constitutional ESR by any actor,
whether state or non-state in nature. If this judicial unwillingness continues,
it seems extremely unlikely that the courts will be able (or indeed be willing)
to hold NSA to account effectively. Another impediment to the effectiveness of
the Irish horizontality model is the lack of clarity surrounding the
constitutional tort action. The final effectiveness-related challenge is the
ever more evident disinclination of the Irish courts to apply constitutional
It is crucial at this point that the Irish courts take steps to clarify the
doctrine of horizontal application under the Irish Constitution, particularly in
relation to identifying the circumstances in which the constitutional tort
arises. Whether the doctrine is to be abolished or retained, the courts must do
so on the basis of strong, well-defended reasoning which directly addresses and
resolves the conceptual confusion which currently prevails. The doctrine should
not simply be left to languish in its current vague, unsatisfactory state.
While at this relatively early stage in the South African Constitution's
history, it is very difficult to evaluate the effectiveness of the South African
schema in terms of holding NSA to account, it seems more hopeful than the Irish
one—on paper at least. One very important issue should be noted at this stage,
however. While the Final Constitution expressly enshrines horizontality, it does
not mandate it in all circumstances. In each decision, courts will have to
determine whether an ESR is applicable taking into account the nature of the
rights and the nature of any duty imposed by the right.
While it seems likely—and, indeed, the Constitutional Court's statement in Juma
Musjid, Grootboom and other cases suggest—that the courts will not be reluctant
to hold that an ESR will be applicable to a NSA where a negative duty is at
issue, it remains to be seen whether courts will be as willing to hold NSA to be
bound by ESR violations where it is a positive obligation that is at issue.
Furthermore, as Pieterse has observed, the existence of § 39(2) of the
Constitution (which mandates the South African courts to interpret legislation
and develop common law in situations where this is necessary for the effective
enjoyment of ESR) as well as the plethora of relevant legislative provisions
regulating social service delivery and the vast body of common law that may be
developed to give effect to ESR means that direct reliance on constitutional ESR
provisions in private disputes is likely be a rare occurrence.17
The South African Constitutional Court's growing tendency to rely on § 39(2)
(and hence indirect application) rather than directly applying substantive
constitutional rights provisions to the law or conduct at issue in the cases
before them—whether such cases raise questions of either vertical or horizontal
application—has been criticized as effectively undermining the Bill of
Rights.18 Indeed, Van der Walt notes that most academic commentators who were
initially enthusiastic about direct application have given up on the debate or
shifted their focus.19
In addition, the scope for applicants to rely on § 8 to ensure the direct
application of constitutional ESR to non-state actors seems further diminished
in light of the Constitutional's Court's ever more extensive adoption of
subsidiary principles in its jurisprudence (whether involving vertical or
A strong indicator of the Court's approach was provided in an ESR context by the
Court's last decision of the 2009 term, which centered on the delivery of ESR-related
services to residents of an informal settlement.21 In this case, the applicants
had sought to rely both on Chapters 12 and 13 of the National Housing Code and a
range of constitutional provisions, including ESR.22 Both the applicants and the
Constitutional Court regarded Chapters 12 and 13 as promulgated to give effect
to the rights conferred by § 26 of the Constitution.
Here, the Constitutional Court stated that it had repeatedly held that where
legislation has been enacted to give effect to a right, a litigant should rely
on that legislation or alternatively challenge the legislation as inconsistent
with the Constitution.23 Therefore, it concluded, the applicants were not
permitted to rely directly on constitutional ESR provisions.
- See UN Committee on Economic, Social and Cultural Rights, General
Comment No. 15, Right to water (2002),
- A wide range of objections have been raised to the legitimacy of the
direct horizontal application of ESR. These are premised on both
international law and features of particular domestic frameworks.
Other arguments center on the efficacy of the application of human rights
standards to relationships between private actors in terms of ensuring
effective protection of ESR. In this article, I will focus primarily on
those legitimacy-related arguments that are based on liberal constitutional
theory. Obviously, the relevance of such arguments will vary depending on
the domestic constitutional framework at issue and I am not suggesting that
the issues dealt with in this article will be equally relevant to every
- See Chris Sprigman & Michael Osborne, Du Plessis is Not Dead: South
Africa's 1996 Constitution and the Application of the Bill of Rights to
Private Disputes, 15(1)
S. Afr. J. Hum. Rts 25 (1999); and Halton Cheadle & Dennis Davis, The
Application of the 1996 Constitution in the Private Sphere, 13 S. Afr. J.
Hum. Rts 44 (1997).
- See, e.g., Jan A. Hessbruegge, Human Rights Violations Arising from
Conduct of Non-State Actors, 11 Buff. Hum. Rts L. Rev. 21 (2005); John
Knox, Horizontal Human Rights Law, 102 Am. J. Int'l L. 1, 1 n. 86 (2008);
- See, e.g., Stephen Gardbaum, The Horizontal Effectof Constitutional
Rights, 102 Mich. L. Rev. 387, 396 (2003) where the extensive Irish
experience is summed up in two paragraphs.
- For a discussion of the counter-majoritarian objection to this kind of
judicial activism within constitutional liberal theory, seeAlexander Bickel,
The Least Dangerous Branch—The Supreme Court at the Bar of Politics (1962).
- See, e.g., Sprigman & Osborne, supra note 3.
- Stephen Ellman, Labor Law: A Constitutional Confluence: American State
Action; Law and the Application of South Africa's Socio-economic Rights
Guarantees to Private Actors, 45 N.Y.L. Sch. L. Rev. 21, 41, 42 (2001).
- See S. Afr. Const., 1996, § 167(3)(c), 167(7), available a thttp://www.justice.gov.za/legislation/
constitution/SAConstitution-web-eng.pdf, last accessed 12 January 2014. For
an illuminating discussion of the Irish approach, see the statements of
Finlay CJ in Crotty v. An Taoiseach  I.L.R.M. 400 at 449.
- For such a claim, see Cheadle & Davis, supra note 3, at 56.
- For a discussion of such an understanding of the doctrine, see Maurice
Vile, Constitutionalism and the Separation of Powers 2 (1967). For an
in-depth discussion of the separation of powers in the context of ESR
adjudication, seeAoife Nolan, Children's Socio-economic Rights and the
Courts ch. 4 (2011).
- See Magdalena Sépulveda, Colombia: The Constitutional Court's Role in
Addressing Injustice, inSocial Rights Jurisprudence: Emerging Trends in
Comparative and International Law 127, 146 (Malcolm Langford ed., 2008).
- While such legislation would be open to judicial review by the courts
against judicially applied (and sometimes determined) constitutional
standards, the same is true of any legislation, including that relating to
the vertical application of rights.
- See Ellman, supra note 8, at 42. He states that it is reasonable to
believe that elected political officials are, in general, better equipped
than courts to make complex policy judgments and compromises such as those
required by the horizontal application of rights.
- The Justiciability of Social and Economic Rights: An Updated Appraisal,
CHRGJ Working Paper No. 15 (2007), available at: http://www.chrgj.org/publications/docs/wp/NolanPorterLangford.pdf,
last accessed 12 January 2014.
- There is a vast literature on this point. For examples of key
discussions of such, see social rights jurisprudence, supra note 12; social
and economic rights in theory and practice: a critical assessment (Helena
Alviar García, Karl Klare and Lucy Williams eds., 2014).
- Marius Pieterse, Indirect Horizontal Application of the Right to Have
Access to Health Care Services, 1 S. Afr. J. Hum. Rts 157, 162–163 (2007).
- Stuart Woolman, The Amazing, Vanishing Bill of Rights, 124 S. Afr. L.J.
762, 762 (2007). It is notable that in the Juma Musjid case, the Court was
also invited by the applicants to develop the common law of contract and
trust in accordance with § 39(2) of the Constitution and the Court did not
do so even though such an approach might have enabled it to avoid addressing
- Van der Walt, supra note 103, at 98.
- See, esp., South African National Defence Union v. Minister of Defence
and Others  ZACC 10; 2007 (5) SA 400 (CC) (S. Afr.) and Bato Star
Fishing (Pty) Ltd. v. Minister of Environmental Affairs and Tourism and
Others  ZACC 15; 2004 (4) SA 490 (CC) (S. Afr.). For more, see van der
Walt, supra note 103 above.
- Nokotyana and Others v. Ekurhulni Metro and Others  ZACC 33
(CC31/09). For another example of the Court discussing the subsidiarity
principle in an ESR context, seeMazibuko & Others v. City of Johannesburg &
Others  ZACC 28 (Case CCT 39/09), ¶¶ 75–77. For further discussion of
both cases, see infra.
- The applicants relied on the right to have access to adequate housing,
guaranteed in § 26 of the Constitution, as well as §§ 2, 7, 10, 39, and 173
of that instrument.
- Nokotyana  ZACC 33 at 24.
- Shifa Khan,
- Shambhavi Shailendra