Normative content

Most contemporary bills of rights, like the constitutions themselves, have generally ceased to be a kind of political manifesto with a limited legal impact. Today, rights contained therein are usually set to be directly applicable in the procedural framework established by the constitution

itself, as discussed below. However, in order to make this possible, the rights need to be articulated in such a way that they could be self-executing. In other words, the relevant provisions of the constitution need to have a clear normative content, making them applicable essentially in two situations:

• When there is no ordinary legislation enabling the rights holder to claim his or her rights.

• When the bill of rights provides criteria for the assessment of the

conformity of ordinary legislation with the constitution.

In order to be self-executing, a provision of the bill of rights should identify the rights holder and his or her legal entitlement, and, if need be, determine the limitations of the right and the basic ways of its implementation. The same requirements must be met by the provisions of international human rights treaties with a view to making them self-executing. The Human Rights Committee stresses in this context that “the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law.”¹⁸ There are numerous examples of self-executing provisions in both international law and constitutional texts.

Although gradually diminishing, the view continues to be represented by some commentators that the question of the self-executing nature distinguishes

18 General comment No. 31 (2004), paragraph 15.

• An international or constitutional norm is directly applicable if there is no need for implementing legislation enabling such a norm to be applied by a court or an administrative organ.

• A norm is self-executing if its normative content is sufficiently clear to be applied by a court or an administrative organ.

Article 29 of the 1991 Constitution of Bulgaria

(1) No one shall be subjected to torture or to cruel, inhuman or degrading treatment, or to forcible assimilation.

(2) No one shall be subjected to medical, scientific or other experimentation without their voluntary written consent.

economic, social and cultural rights from civil and political rights. According to this view, many civil and political rights do not need any implementing legislation to be applied, while economic, social and cultural rights only acquire legal meaning through legislation.

Indeed, some constitutions, in particular the older ones, do not articulate economic, social and cultural rights. The argument brought to support this approach refers to the supposed vagueness of these rights which, as a consequence, cannot be directly applied and are therefore not self-executing.

Guided by similar considerations, other constitutions while proclaiming social rights clearly state that they can be applied only on the basis of, and within the limits established by, ordinary legislation.

It is not the purpose of this publication to debate this issue, but it should be stressed that at both the international and the national levels the view that economic, social and cultural rights are justiciable and therefore directly applicable has gained ground. Nevertheless,

it can also be said that the drafting of laws to provide for economic, social and cultural goods and services requires special attention with a view to giving them as precise a normative content as possible.

A convincing and greatly instructive jurisprudence of the highest courts has developed in some countries, such as India and South Africa. In the Grootboom case, the Constitutional Court of South Africa stated: “The question is therefore not whether socio-economic rights are justiciable under our Constitution, but how to enforce them in a given case. This is a very difficult issue which must be carefully explored on a case-by-case basis.”¹⁹ The justiciability and enforceability of all rights largely depend, however, on the way they have been articulated, and on whether their normative content is clear enough. There is no single recipe for handling this matter because possible solutions are determined by, inter alia, the specific features of the legal system and the relevant legal traditions of the country. Nevertheless, there are practical considerations that should be taken into account when drafting constitutional rights concerning public services, and experience gathered during the drafting process of international instruments and

19 Government of the Republic of South Africa and Others v. Grootboom and Others (2000).

A constitutional right is justiciable if a legal claim based on it can be reviewed and decided upon by a court of law.

contemporary constitutions can also help to clarify issues or to find solutions.

Each of these options requires different legislative techniques (see chapter III, section B.5, of the present publication).

First, it is essential to determine what sort of legal effect is to be achieved and whether the planned provision of the constitution should primarily address the individual or the State.

Second, if it is possible to capture the matter under discussion in the form of an individual right, this form is preferable because it gives the rights holder the strongest position. On the basis of such a constitutional provision, the individual can effectively claim his or her right before competent organs, including in the framework of judicial proceedings. In this case, however, the right must have a more specific legal content.

Third, some social matters deserve to be embraced by the constitution, but laying down individual rights addressing them would be either impossible or premature. In such a case, the drafters may choose between two options.

One is to formulate a legal duty of the State with a clear normative content.

Through this, the State authorities can be held accountable for failing to implement the relevant constitutional provision. The drawback of this approach is that an individual usually does not have a legal entitlement to initiate a formal proceeding claiming its implementation.

The other option is to formulate a policy principle or guideline which the State is responsible for abiding by in order to achieve a given policy objective.

Article 53 of the 1996 Constitution of Ukraine

Citizens have the right to obtain free higher education in state and communal educational establishments on a competitive basis.

Article 13 of the 1990 Constitution of Benin

The state shall provide for the education of the youth by public schools. Primary education shall be obligatory. The state shall assure progressively free public education.

Article 21 of the 1982 Constitution of China

The state develops medical and health services, promotes modern medicine and traditional Chinese medicine, encourages and supports the setting up of various medical and health facilities by the rural economic collectives, state enterprises and undertakings and neighborhood organizations, and promotes sanitation activities of a mass character, all to protect the people’s health.

Such constitutional provisions are not usually interpreted by the judicial organs as a basis for recognizing legal claims. Nevertheless, they may be called upon in political assessments, and in parliamentary and public debates. Finally, such provisions may also be instrumental in interpreting laws, including acts of parliaments regulating human rights matters.

Therefore, it may be appropriate to include regulations in this form even though their legal content remains rather vague.