Papers by Katharine Young
The obligation of 'progressive realization' under the International Covenant on Economic and Soci... more The obligation of 'progressive realization' under the International Covenant on Economic and Social Rights is often interpreted in light of available resources -this chapter examines, instead, the variable of time. Noting that delay of rights is akin to denial of rights, Young explores the various ways in which accountability models, at the international level, have elaborated on concrete, and temporal, benchmarks. These include the minimum core, and non-retrogression doctrines, and the exercises in comparative rankings. These are important sources of accountability, especially for positive obligations. And yet with the promise of rights, law nevertheless structures the expectations of rights-holders. This chapter examples how 'waiting' for rights may be an especially passive, disempowering, and anti-solidaristic experience and in so doing reveals greater insight on a tension with underlies the recognition of fundamental material interests as rights.
SSRN Electronic Journal, 2022
Are human rights to be found in living instruments and practices that adapt to changing circumsta... more Are human rights to be found in living instruments and practices that adapt to changing circumstances, or must they be interpreted according to their original meaning? That question, so heavily debated in the context of the rights of the U.S. Constitution, was never seriously on the table until 2020. But when former Secretary of State Mike Pompeo called for "fresh thinking" about human rights, and its connection with "our nation's founding principles," he brokered a return to two landmark instruments of human rights-the Declaration of Independence of 1776 and the Universal Declaration of Human Rights of 1948. His Commission on Unalienable Rights obliged, presenting the familiar tropes of fixed sources, venerated authorship, and national identity, in order to accomplish a drastically different presentation of the meaning of human rights. The end result is an act of fusion-the powerful political and cultural valence of America's constitutional originalism, applied to the human rights of American foreign policy. This Article identifies this innovation as "human rights originalism." Although the Report of the Commission on Unalienable Rights has, at least for now, been shelved, human rights originalism may be one of the most enduring legacies of the Trump Administration. As an interpretive theory, human rights originalism promises many of the same benefits as its constitutional counterpart-simplicity, popular reach, and control of rights' unruliness and proliferation-this time wrested from unaccountable United Nations institutions and experts rather than courts. As a substantive departure from contemporary human rights, human rights originalism elevates the importance of religious freedom and property rights, and
The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the g... more The Covid-19 pandemic has impacted all of us, but not all of us equally. Far from acting as the great leveller, the disease that itself does not discriminate has revealed and exacerbated startling health disparities across the United States and globally. The early disaggregation of data indicated that Covid-19 mortality rates were more than double in Black populations than in White populations in the U.S., and were one and a half times as high, nationwide, in Latinx, and Indigenous populations. Infection rates, by population group, were also higher. The disparities of the global spread added further complexities. Now, as the Covid-19 vaccine has been developed in record speed, the challenge of distribution must incorporate facts about public health disparities alongside questions of prioritization. Two big questions loom: how much do our concepts of distributive justice and global justice incorporate racial justice? And how much should they? Matiangai Sirleaf has given us a vocabula...
The constitutional politics of gender equality are never static – the pendulum appears in constan... more The constitutional politics of gender equality are never static – the pendulum appears in constant motion the world over, and no less for the US. As protections of equality and non-discrimination are now given in all but three of the world’s constitutions, and as women’s rights are given direct expression in 24, the constitutionalist promise of gender equality has appeared to be on a global upswing. And yet these trends are not everywhere the same. Indeed, with the tributes flowing in for the late, great and notorious Justice Ruth Bader Ginsburg last month, both for her legacy to global constitutionalism as well as to US constitutional law, the robust protections of gender equality in the US seem ever more fragile. It becomes vital to understand that legacy, and other feminist achievements, outside of US Supreme Court doctrine. Enter Julie Suk’s wonderful new book, We the Women: The Unstoppable Mothers of the Equal Rights Amendment. In this carefully researched and extraordinarily w...
Proportionality
attainable, in context. Less frequent, although certainly apparent, are the sorts of brightline r... more attainable, in context. Less frequent, although certainly apparent, are the sorts of brightline rules that are said to make rights-adjudication and rights-enforcement a more constrained interpretive exercise. 6 Even the negative obligations attached to economic and social rights, such as the prohibition against forced eviction, 7 or denial of emergency medical treatment, 8 may countenance some form of limitation, mediated by standards. 9 In this context, one would expect that the most disciplined sort of standards-based reasoning in rights adjudication-that of the sequenced and structured proportionality test or protocol, often named "proportionality analysis" 10-would have become prevalent for economic and social rights. For its proponents, proportionality analysis is integral to a new "global model of constitutional rights", 11 providing a "key to the door of an international community of judges" 12 for disciplining and constraining the inevitable discretion opened up by rights adjudication and enforcement. If economic and social 6 For a very useful articulation of this difference, in the American context,
SSRN Electronic Journal, 2021
An inseparable component of liberal constitutionalism is the respect accorded to so-called negati... more An inseparable component of liberal constitutionalism is the respect accorded to so-called negative rights, which rest on duties of government restraint. But just as governments must have their hands tied, in this model, they must also work to secure rights, by actively and effectively planning, regulating, budgeting, and monitoring. These positive duties are particularly pronounced for so-called "positive rights", which guarantee access to goods, services and opportunities such as social security, education, health care, land, food, water, sanitation, or to a clean environment. Of course, it is clear that so-called negative rights require both duties of commission and restraint; just as so-called positive rights call for the same. Nonetheless, the positive duties that attach to economic and social rights put particular pressure on courts, the executive, the legislature and civil society. Indeed, courts have become central in enforcing the negative and positive duties that...
Columbia Journal of Transnational Law, 2016
Two legal concepts have become fundamental to questions of resource allocation in the modern stat... more Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique challenge to rights and “rights talk.” In exploring the currency of rights and queues in both political and legal terms, the Article illustrates how participants discuss and contest the right to housing in South Africa, the right to health care in Canada, and the right to asylum in Australia. It argues that, despite its appearance in very differe...
Columbia Journal of Transnational Law, 2016
Two legal concepts have become fundamental to questions of resource allocation in the modern stat... more Two legal concepts have become fundamental to questions of resource allocation in the modern state: rights and queues. As rights are increasingly recognized in areas such as housing, health care, or immigration law, so too are queues used to administer access to the goods, services, or opportunities that realize such rights, especially in conditions of scarcity. This Article is the first to analyze the concept of queues (or temporal waiting lines or lists) and their ambivalent, interdependent relation with rights. After showing the conceptual tension between rights and queues, the Article argues that queues and “queue talk” present a unique challenge to rights and “rights talk.” In exploring the currency of rights and queues in both political and legal terms, the Article illustrates how participants discuss and contest the right to housing in South Africa, the right to health care in Canada, and the right to asylum in Australia. It argues that, despite its appearance in very differe...
Avoidance, on the part of the judiciary, calls to mind a number of judicial postures. For Brian R... more Avoidance, on the part of the judiciary, calls to mind a number of judicial postures. For Brian Ray, in his recent article “Evictions, Avoidance and the Aspirational Impulse” in South Africa’s Constitutional Court Review, avoidance signals an active posture of economic and social rights decision-making that limits the substantive development of constitutional doctrine, cedes to current legislation or policy the frame of rights analysis, and deliberately marginalizes the judicial role. While celebrating Ray’s ability to link disparate features of the South African Constitutional Court’s jurisprudence - the use of reasonableness review, the creation of new procedural remedies, the deployment of either extremely abstract constitutional deliberation or extremely fact-specific deliberation (without, Ray contends, the moderate use of either), and a tendency to find infringements of the obligations attached to economic and social rights only in the face of clearly unconstitutional conduct,...
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The human rights movement has done little to address economic inequality. So says Samuel Moyn in ... more The human rights movement has done little to address economic inequality. So says Samuel Moyn in Not Enough: Human Rights in an Unequal World. Reviewer Katharine Young disagrees. The good work promoting equality has been done, but this time, it has been done outside the United States. Had Moyn originally looked to where Young is now pointing, his book would have been much improved.
SSRN Electronic Journal, 2020
The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As econom... more The COVID-19 pandemic has produced a health and economic crisis of unprecedented scope. As economists and policymakers turn to the task of recovery, protecting human rights remains intrinsically important, both morally and legally. It is also instrumental to the ends of public health and economic resilience. This Article argues that the human rights to life, health, education, social security, housing, food, water and sanitation-the so-called economic and social rights-are as essential as civil and political protections. Moreover, rather than simply ameliorate the inevitable indignities and material deprivations caused by the COVID-19 pandemic, the implementation of duties to respect economic and social rights can help ensure their protection in the post-COVID-19 economy. For this to occur, however, the Article suggests that the application of human rights to the economic recovery should be informed by a longer history of economic crises, assisted by both international and comparative economic and social rights frameworks, and open to the institutional reimagination that the idea of human rights helps to generate.
Human Rights Documents online
Factsheet31.pdf. 2. In this article, we adopt the terminology of justiciability to refer to claim... more Factsheet31.pdf. 2. In this article, we adopt the terminology of justiciability to refer to claims that may be brought by individuals before courts, and aspirational guarantees that direct a government to take certain measures, which cannot, by themselves, form a cause of action before a court. We note that certain combinations exist, such as the "Directive Principles of State Policy" which form the basis of the right to health care in India, and yet also form a cause of action because of the link to the right to life.
Proceedings of the Annual Meeting American Society of International Law, 2013
This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Dinah Shelton of the Geo... more This panel was convened at 9:00 am, Saturday, April 6, by its moderator, Dinah Shelton of the George Washington University Law School, who introduced the panelists: Chelsea Purvis of Minority Rights Group International; Moria Paz of Stanford University; Andy Spalding of the University of Richmond School of Law; and Katharine Young of Boston College Law School. INTRODUCTORY REMARKS BY DINAH SHELTON * The international lawmaking process has long been a topic of scholarly interest and divergent views, from highly state-centric and positivist approaches to decentralized and expansionist concepts that blur or erase any line between legally binding norms and non-binding political commitments. The attention given to lawmaking processes is particularly pronounced in the field of human rights, where concerns over "devaluing the currency" through too great an expansion of the catalogue of rights is countered by concerns for addressing critical new issues through a rights-based lens. In this debate, the role of international and domestic tribunals is a central focus, especially given the proliferation of international human rights bodies and the increasing number of complaint mechanisms that exist in global and regional organizations. Each of the four young scholars on this panel is concerned with the development of new rights, enforcement of existing rights, and the role of international and domestic tribunals in respect to such development and enforcement. While the topics they address appear quite diverse, the lawmaking theme and role of tribunals is central to each of them. Moria Paz states that global and regional bodies "create rights," and do not just enforce them. If indeed this is what international tribunals do, then she may rightly criticize their approach to language rights. Others might argue, however, that the role of tribunals is not legislative in nature, but is limited to enforcing the applicable legal instruments in a dynamic manner that stops short of creating rights that were omitted from the texts when they were drafted. Chelsea Purvis and Katharine Young also look at the interpretation and enforcement of human rights. Chelsea points to a lack of awareness of the innovative normative framework and jurisprudence of the African human rights system. The lawmaking process in Africa has resulted in progressive treaties to guarantee new rights, while the African Commission has given broad readings to the rights thus included in the African legal instruments. By building on the texts and the jurisprudence of other regional and global institutions, the African Commission has made unique contributions to human rights law that are worthy of study and are in turn influencing other tribunals and lawmakers. Katharine Young reveals that similar innovations are occurring in domestic courts that address the implementation and enforcement of economic and social rights. In these instances, as well, the line between interpretation and creation of new rights is a sensitive issue for tribunals. In contrast to the focus on interpretation and enforcement of existing rights, Andy Spalding suggests the emergence of a new right--freedom from corruption--and examines how tribunals and regulatory agencies may recognize and give effect to this new right. His focus is domestic courts and the issue of corporate liability for overseas human rights violations. He proposes an expanded reading of the Foreign Corrupt Practices Act instead of the recent intense focus on the Alien Tort Statute. He sees the possibility of regulatory enforcement of the FCPA to address the same kinds of abuses that have been the subject of ATS litigation. These four papers, which can only be summarized in the Proceedings, deserve publication in full. They raise important issues and broad questions about the development of human rights law and the role of international and domestic tribunals in that development. …
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Papers by Katharine Young
Drawing on constitutional examples from South Africa, Colombia, Ghana, India, the United Kingdom, the United States and elsewhere, the book examines innovations in the design and role of institutions such as courts, legislatures, executives, and agencies in the organization of social movements and in the links established with market actors. This comparative study shows how legal systems protect economic and social rights by shifting the focus from minimum bundles of commodities or entitlements to processes of value-based, deliberative problem solving. Theories of constitutionalism and governance inform the potential of this approach to reconcile economic and social rights with both democratic and market principles, while addressing the material inequality, poverty and social conflict caused, in part, by law itself.
The book:
• Develops an original, analytic model for understanding the rapid legal expansion of socio-economic rights, and their impact on public law and constitutional theory
• Contains comparative examples from such constitutions as South Africa, Canada, Colombia, Germany, Ghana, India, United Kingdom, and the United States, as well as international systems, enriching the comparative law literature
• Draws on judicial, legislative, and executive interactions, as well as civil society and market participants, in a sophisticated legal methodology, overcoming the limitations of traditional court-focused studies
• Includes a foreword by Dean Martha Minow of Harvard Law School
The download includes the Table of Contents and the Introduction: The Path to Transformation