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The constitutionalization of the right to social security : a comparative analysis between Japan and… Villaseñor Rodriguez, Fernando 2017

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  THE CONSTITUTIONALIZATION OF THE RIGHT TO SOCIAL SECURITY: A COMPARATIVE ANALYSIS BETWEEN JAPAN AND MEXICO  by  Fernando Villaseñor Rodriguez   B. Law, Escuela Libre de Derecho, 2006. LLM Asian Studies, El Colegio de México, 2009.   A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY  in  The Faculty of Graduate and Postdoctoral Studies  (Law)      The University of British Columbia  (Vancouver)  October, 2017    © Fernando Villaseñor Rodriguez, 2017 ii   Abstract  This dissertation analyzes three hypotheses that are often advanced in the literature regarding social rights in a comparative scenario.   The first of such hypotheses states that the inclusion of social rights in a given constitution makes them justiciable (constitutionalization hypothesis). The second of such hypotheses states that making them justiciable will, in turn, improve social rights enforcement (justiciability hypothesis). The third of such hypotheses states that when both of the suppositions from the previous hypotheses are met, a general improvement in welfare will ensue (welfare hypothesis).   To test the aforementioned hypotheses, this dissertation delimited the vast category of social rights to focus on the right to social security (RSS), and the vast category of possible countries to focus on the cases of Japan and Mexico. After the pertinent analysis, this dissertation will conclude that, in the two cases compared herein, the three aforementioned hypotheses are wrong. More importantly, this dissertation will intend to explain why such hypotheses are wrong for the cases compared.           iii  Lay summary  This dissertation compares the right to social security in two countries with very different economies but with similar social and legal problems: Japan and Mexico. Some of the critical elements identified in both countries included the subordination of international human rights law to domestic law, a passive and conservative judiciary, and a society averse to litigation. It will be argued that the sum of the aforecited elements, independenty of other cultural or economic explanations, determine the constitutional status and validity for the right to social security. iv  Preface  This dissertation is an original, unpublished, independent work by the author, Fernando Villaseñor Rodríguez.    v  Table of contents Abstract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . .       ii Lay summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..    iii Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      iv Table of contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      v List of abbreviations and acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . .       xi  Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  . . . . . . . . . . . .     xiii                          PART I THEORETICAL FOUNDATION  Chapter 1 Introduction ….......................................................................................................    1 1.1 Objective …………………….……………………………………………………………   1 1.2 Focus: constitutionalization and justiciability…………………………………………… 4 1.3 Comparing Japan and Mexico ...……………………………………………...………    10 1.4 Methodology …...…………………………………...…...………………………………  15 1.5 Relevance of this research …...…………………………………...…………………     25 1.6 Main arguments of this dissertation  …...…………………………………...………     26 1.7 Organization of this dissertation …...…………………………………...……………    28  Chapter 2 From the welfare state to domestic social rights ............................................    31 2.1 The rise of the welfare state and of social rights …...………………………………    31 2.2 Social rights in international law …...…………………………………...……………      35 2.3 Incorporating international social rights to domestic law …...…………………….        37 2.4 The problem with social rights …...…………………………………......……………      41  Chapter 3 Arguments for and against social rights constitutionalization .......................   45 3.1 Possible ways of constitutionalizing social rights …...………………………………    45 3.1.1 Non-justiciable or (merely) declaratory rights………………………………    45 3.1.2 Weak substantive rights ………………………………………………..……    46 3.1.3 Strong substantive rights …………………………………………………        46 3.2 Arguments for constitutionalizing social rights ……………………………………      47 3.2.1 The entitlement argument …………………………………………………....     47 3.2.2 The aspirational constitutionalism argument.……………………………….   48 vi  3.2.3 The constitutionalization favors litigation argument ……………………….   49 3.3 Arguments against constitutionalization of social rights ……………………………   51 3.3.1 The vagueness and specificity arguments …………………………………   51 3.3.2 The populism argument ………………………………………………………  52  Chapter 4 General considerations regarding social rights justiciability...........................  54 4.1 Justiciability pertaining ESCR.………………………………………………………….    54 4.2 Arguments for the justiciability of social rights …………………………………………   58 4.2.1 Justiciability is unaffected by political interests ……………………………   59 4.2.2 Justiciability favors democracy ………………………………………………    60 4.2.3 Justiciability reduces inequality ……………………………………………      61  4.3 Arguments against the justiciability of social rights …………………………………    62 4.3.1 Justiciability is not based in an independent power ………………………    62 4.3.2 Justiciability is affected by the courts´ inadequacies ………………………  65 4.3.3 Justiciability of social rights is trivialized ……………………………………   66  Chapter 5 The right to social security ......................... ........................................................  69 5.1 The right to social security in international law ………………………………………  69 5.1.1 Before social security was a right ……………………………………………  70 5.1.2 The ILO and the UDHR ………………………………………………………    73 5.1.3 Minimum standards of social security and the ambiguity of ICESCR article 9 ……………………………………………………………………    75 5.1.4 General comment no.19 (GC19) ……………………………………………   79 5.1.5 Social protection floors ………………………………………………………     82 5.2   Contemporary distinction between social security, social assistance         and social insurance ……………………………………………….…………………   84  PART II THE CASE OF JAPAN  Chapter 6 Japan as a welfare state ............................................................................. ........    88 6.1 History of Japanese welfare before the 1980s ………………………………………   88 6.1.1 From Meiji to the defeat in war (1868-1944) ………………………………    88 6.1.2 From the occupation to the social welfare services act (1945-1951) ……   90 6.1.3 The LDP and welfare expansion (1951-1979) …………………………….    91 6.2 Japanese-style welfare society (1980-1990) …………………………………………   93 vii  6.2.1 The full-time housewife ………………………………………………………   96 6.2.2 The graying society …………………………………………………………    98 6.3 The lost twenty years ………………………………………………………………….   100 6.3.1 Structural reforms in welfare (1990-2000) ……………………………….    100             6.3.2 Participatory welfare society (2000-2010) ……………………………….     102 6.4 This decade so far ……………………………………………………………………… 106  Chapter 7 Social rights in Japan ............................................................................... ..........  110 7.1 History of the concept of human rights in Japan …………………………………….  110 7.2 Fundamental human and social rights ……………………………………………….  116 7.3 Incorporation of international treaties ……………………………….……………….  119  Chapter 8 The Judiciary, judicial review and litigation in Japan ......................................   123 8.1 The Japanese judiciary ……………………………………………………………….   123 8.2 Judicial review in Japan ………………………………………………………………   125 8.2.1 The foundations of judicial review …………………………………………   125 8.2.2 Methods and doctrines of judicial review …………………………………   127 8.2.3 Judicial review in practice ………………………………………………….    132 8.3 Weak courts …………………………………………………………………………….  134 8.3.1 Limited range of remedies …………………………………………………     135 8.3.2 The requirement of an actual case to decide and legal interest ………      135 8.3.3 Dual supremacy of court and diet …………………………………………     136 8.3.4 The cabinet legislation bureau …………………………………………….    136 8.3.5 The stare decisis system ……………………………………………………   137 8.4 Judicial restraint ………………………………………………………………………... 138 8.4.1 Reasons for judicial restraint ………………………………………………    139 8.4.2 Conservatism by institutional design ………………………………………   141 8.4.3 A qualitative analysis of independence in the judiciary ………………….     143 8.5 Social attitudes towards law and litigation ………………………………………….   145 8.5.1 Non-litigiousness ……………………………………………………………    145 8.5.2 Lack of lawyers …………………………………………………………….      147 8.5.3 Lack of an independent NHRI …………………………………………….     148  Chapter 9 Article 25 of the Japanese constitution ...........................................................    150 9.1 The origin of article 25 ………………………………………………………………… 150 viii  9.2 Principal cases of jurisprudence ……………………………………………………… 152 9.2.1 Food supply act case (1948) ………………………………………………   152 9.2.2 Asahi v. Japan (1967) ………………………………………………………   154 9.2.3 Horiki welfare support case (1982) ……………………………………….     156 9.2.4 Asahikawa health insurance case (2006) …………………………………   158 9.3 Theories of interpretation regarding article 25 ……………………………………… 159 9.3.1 Programmatic rights theory ……………………………………………….      159 9.3.2 Abstract rights theory ………………………………………………………      160 9.3.3. Concrete rights theory ……………………………………………………      161             9.3.4 The subsidiarity of article 25 ………………………………………………     161 9.4. Obstacles to making the RSS justiciable in Japan …………………………………   162 9.4.1 Restricting article 25 by the duty to work …………………………………    162 9.4.2 Courts and their interpretation of article 25 ………………………………    165 9.4.3 Litigating the RSS with equality and the non-discrimination principle …   167 9.4.4 Non-judicial activism ……………………………………………………….      169 9.4.5 The RSS in Japan today ……………………………………………………     172  PART III THE CASE OF MEXICO  Chapter 10 Mexico as a welfare state ....................................................... ..........................   174 10.1 History of the Mexican welfare state before the 1980s ……………………………  174 10.1.1 Separation between public and private beneficence (mid to late  19th century) ………………………………………………………………………      175 10.1.2 After the Mexican revolution (1910-1934) ………………………………    176 10.1.3 The social state, the first social security law, and the institute of  social security (1934-1946) ………………………………………………………     178 10.1.4 The Mexican miracle (1946-1982) ……………………………………….    180 10.2 The end of the Mexican welfare state (1982-2000) ………………………………   181 10.2.1 The rise of neo-liberalism and the December mistake (1982-1994) …   181 10.2.2 First phase of privatization (1990-2000) ……………………………….     185 10.3 The change in power (2000-2012) …………………………………………………   188 10.4 This sexenio so far …………………………………………………………………… 193  Chapter 11 Social rights in Mexico. ............................................................................ .......    196 11.1 Social constitutionalism and the Mexican constitution of 1917…………………    196 ix  11.2 Social programs ……………………………………………………………………...   201 11.2.1 Clientelism …………………………………………………………………     201 11.2.2 Social assistance vs. social insurance  …………………………………     205 11.3 Incorporation of international treaties ……………………………………………… 206 11.3.1 Before the New Human Rights Reform of 2011 ………………………… 206  11.3.2 Since the New Human Rights Reform of 2011 ……………………….…  208  Chapter 12 The judiciary, judicial review and litigation in Mexico ..................................  211 12.1 The Mexican judiciary ………………………………………………………………    211 12.2 Judicial review in Mexico …………………………………………………………...     213 12.2.1 The foundations of judicial review ………………………………………     214 12.2.2 Methods and doctrines of judicial review ………………………………     215 12.2.3 Judicial review in practice ………………………………………………      219 12.3 The many Mexicos and their many courts ……………………………………….     223 12.3.1 Limited range of remedies ………………………………………………     224 12.3.2 The requirement of “legitimate” interest ………………………………       225 12.3.3 The courts at the service of the executive ……………………………       226 12.3.4 So many laws so little time ………………………………………………     228 12.3.5 The new jurisprudencia …………………………………………………       229 12.4 Judicial restraint ……………………………………………………………………     231 12.4.1 Reasons for judicial restraint ……………………………………………      231 12.4.2 Conservatism by presidential design ……………………………………    232 12.4.3 A qualitative analysis of independence in the judiciary ……………….     233 12.5 Social attitudes towards law and litigation …………………………………………   234 12.5.1 Lack of trust in the judiciary ………………………………………………    235 12.5.2 Too many lawyers too little justice ………………………………………    236 12.5.3 The national and local human rights commissions ……………………    237  Chapter 13 Article 123 Par. XXIX of the Mexican constitution ..........................................  239 13.1   Origin and evolution of article 123 Par. XXIX ……………………………………  239 13.2 Principal cases of jurisprudencia ......................................................................  243 13.2.1 The RSS is conditioned by the existence of a previous labor relationship ...   243 13.2.2 Deference towards the legislative and executive branches ……………   246 13.2.3 Limitation of social security benefits ....................................................    248 13.2.4 The RSS as a social responsibility …………………………………….      250 x  13.3 Theories of interpretation regarding article 123 Par. XXIX .................................   253 13.3.1 Work is the conditio sine qua non for the constitutional RSS ...............   253 13.3.2 Discretionary powers of the legislative and executive branches regarding       the RSS ..........................................................................................................   254 13.3.3. Social Security benefits are limited ....................................................      254 13.3.4 The status of article 123 Par. XXIX is subsidiary to other considerations ...   255 13.4. Obstacles to making the RSS justiciable in Mexico ............................................  256 13.4.1 Restricting the right to social security by the duty to work ......................   256 13.4.2 Courts and their interpretation of article 123 Par. XXIX ......................     257 13.4.3 Litigating the RSS with equality and the non-discrimination principle...   259 13.4.4 Non-judicial activism ...........................................................................    261 13.4.5 The RSS in Mexico today ....................................................................    263  PART IV ARE CONSTITUTIONALIZATION AND JUSTICIABILITY REALLY THE BEST WAYS TO FULFILL THE RSS?  Chapter 14. The lack of fulfillment of the RSS in the countries herein analyzed ..........      270 Chapter 15. There might be better options to fulfill social rights than justiciability .......  278  PART V CONCLUSION  Chapter 16.  Recapitulation, conclusions and final remarks ........................................... 281 16.1 Recapitulation ...................................................................................................  281 16.2 Conclusions ....................................................................................................... 284 16.3 Limitations and lessons learned ........................... ............................................  285 16.4 Implications ...................................................... .................................................  288  References   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    290 Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   301   xi  List of abbreviations and acronyms  ACLA Administrative Cases Litigation Act  AFORE Retirement Funds Administrators (for its original acronym in Spanish) C102 ILO´s Convention of 1952  CCT Conditional Cash Transfers  CEDAW International Convention on the Elimination of all Forms of Discrimination against Women  CESCR United Nations Committee on Economic and Social Rights CLB Cabinet Legislation Bureau  CNDH National Commission of Human Rights (for its original acronym in      Spanish) COIDH Interamerican Court of Human Rights (for its original acronym in  Spanish) CONEVAL National Council for Evaluating Welfare and Development Policies (for its original acronym in Spanish) CONSAR Retirement Funds Supervisory Commission (for its original acronym in Spanish) CPR Civil and Political Rights  DIF National System for the Integral Development of the Family (for its original acronym in Spanish) DPJ Democratic Party of Japan  DR Dependency Rate  EEOL Equal Employment Opportunity Law  ESCR Economic, Social and Cultural Rights  FSA Food Supply Act GC19 General Comment No. 19  GDP Gross Domestic Product  HRB Human Rights Bureau  ICESCR International Covenant on Economic, Social and Cultural Rights  ICPPR International Covenant on Civil and Political Rights  xii  ILO International Labor Organization IMSS Mexican Institute of Social Security (for its original acronym in Spanish) INFONAVIT National Fund for Labor Housing (for its original acronym in Spanish) ISSSTE Institute of Social Security for the Public Workers (for its original acronym in Spanish) JFBA Japanese Federation of Bar Associations  LDP Liberal Democratic Party  MOJ Ministry of Justice NCSSR National Committee on Social Security Systems Reform  NHIA National Health Insurance Act  NHRI National Human Rights Institutions  NHRR New Human Rights Reforms  NPO Non-Profit Organizations  OECD Organization for Economic Cooperation and Development  OHCHR United Nations Human Rights Office of the High Commissioner  PROGRESA Program of Education, Health and Nutrition (for its original acronym in Spanish) PRONASOL National Solidarity Program (for its original acronym in Spanish) PRI Institutional Revolutionary Party (for its original acronym in Spanish) RSS Right to Social Security SEDESOL Social Welfare Secretariat (for its original acronym in Spanish) SCAP Supreme Commander of the Allied Powers  SCJ Supreme Court of Japan  SCM Supreme Court of Mexico  SPF Social Protection Floors  SSA Secretariat of Health (for its original acronym in Spanish) SSL Social Security Law  TFR Total Fertility Rate  UDHR Universal Declaration of Human Rights  WWII World War II  xiii  Acknowledgments   For my wife Dircea, my son Fernando, my parents Fernando and Dalia Blanca and my brother Rodrigo.   For my friend Artemio.   For Professor Yoshimi Kikuchi and Mrs. Joanne Chung, and my supervisory committee.  A special thank you to the University of British Columbia, Waseda University, Japan Foundation and CONACYT.  Thank you all for making this possible.   1  PART I THEORETICAL FOUNDATION  Chapter 1 Introduction  “Most accounts of socio-economic rights focus on the constitutional or jurisprudential aspects of such rights. However, such rights are not constituted, interpreted, or implemented in an institutional, ideological, or political vacuum.”       —Ran Hirschl, 20111  The intention of this chapter is to explain the objective of this dissertation and to postulate the questions that it intends to solve. This chapter also includes an explanation regarding the focus of analysis, the reasons behind the selection of the two countries to be compared, and details of the scope and relevance of this dissertation. The methodology will be explained, along with arguments in favor and against it, and a defense that justifies its choosing. Lastly, the organization of this dissertation will also be outlined to offer a common understanding of the route to be followed.   1.1 Objective  Not all countries include the right to social security2 (RSS)3 as part of their constitutional text, but should they?                                                                   1 Evan Rosevear & Ran Hirschl, “Constitutional Law Meets Comparative Politics: Socio-economic Rights and Political Realities” in Tom Campbell, K.D. Ewing, and Adam Tomkins, The Legal Protection of Human Rights: Sceptical Essays (Oxford: Oxford University Press, 2011) at 228. 2 The right to social security (RSS) will be thoroughly analyzed and explained in Chapter 5.   3 With various degrees of recognition, protection and justiciability the ILO lists the Constitutions of: Netherlands, Poland, Romania, Slovakia, Slovenia, Spain, Sweden, United Kingdom, Estonia, Latvia, Lithuania, Ukraine, Bulgaria, Czech Republic, France, Germany, Greece, Hungary, Ireland, Italy, Russian Federation, Belgium (for Europe); Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Domincan Republic Ecuad or, El 2    Various authors4 (such as Fabre5 and Young6) argue that including social rights (in general) and the RSS (in particular) in the constitution automatically makes them justiciable, understanding justiciability for this moment as being capable of review and adjudication7 by a court of law 8 (constitutionalization hypothesis). Most of such authors, in addition, consider that making social rights justiciable also improves their actual enforcement by courts (justiciability hypothesis). Finally, most authors also consider that an increase of justiciability due to constitutionalization will also lead to improved welfare conditions (welfare hypothesis). The underlying assumption in all three hypotheses is the positive transformative power that the courts may have when being able to review cases and adjudicate social rights. In such regard, Argentina9, Bangladesh10, Chile11, Colombia12, Peru13, Serbia14, South Africa15 and Venezuela16, are often cited as cases in which constitutionalizing social rights improved the living conditions of their residents.17                                                                   Salvador, Guatemala, Honduras, Nicaragua, Panamá, Perú and Venezuela (for America); Bangladesh, Cambodia, China, India, Indonesia, Japan, Nepal, Pakistan and Sri Lanka (for Asia) as constitutions that have an explicit recognition of the RSS. ILO Global Study, The Right to Social Security in the Constitutions of the World: Broadening the moral and legal space for social justice  (Geneva: International Labor Organization, 2016) and Global Health and Human Rights Database, available at: 4 All the scholars mentioned in this Chapter will be thoroughly analyzed in Chapters 3 and 4.  5  Cecile Fabre, Social Rights under the Constitution: Government and the Decent Life  (Oxford: Oxford Scholarship Online, 2003). 6 Katharine Young, Constituting Economic and Social Rights (Oxford: Oxford University Press, 2012). 7 Adjudication will be understood in its common connotation: “the act of resolving a dispute or deciding a case”. Nolo’s Plain-English Law Dictionary, available at: 8 William J. Stewar, Justiciab le (Palo Alto: Collins Dictionary of Law, 2006). For the time being this will be understood as a right being “justiciable”. An ampler definition and a proper dis cussion will be provided in the next subsection.  9 Constitución de la Nación de Argentina [Const.] art. 14bis. August 23, 1994 (Argentina).  10 Constitution of the Peoples Republic of Bangladesh. [Const.] Chapter 15. November 4, 1972 (Bangladesh).  11 Constitución Política de la República de Chile. [Const.] art. 18.  October 21, 1980 (Chile). 12 Constitución Política de Colombia [Const]. art. 6. Julio 7 de 1991 (Colombia). 13 Constitution Política del Perú [Const.] arts. 10, 11 and 12- December 29, 1993 (Perú).  14 Constitution of the Republic of Serbia [Const.] art. 97. September 30, 2006 (Serbia). 15 Constitution of the Republic of South Africa [Const.] art. 27. September 6,1996 (South Africa). 16 Constitución de la República Bolivariana de Venezuela. [Const.] art. 80. December 15, 1999 (Venezuela). 17  See for example Roberto Gargarella, Pilar Domingo and Theunis Roux (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor?  (New York: Routledge, 2016). 3  Nevertheless, another group of scholars (including Cross18, Gearty19, Menaut20, Gabel21, and Portugal22) has denounced that the aforementioned hypotheses are false.23  Such scholars either deny the “positive transformative power of the courts”, or consider that granting social rights a constitutional status doesn´t imply better protection or more judicial enforcement, and that it is more probable for other factors to make a difference.24   Trying to solve this debate, the objective of this dissertation is to test the aforementioned three hypotheses in a comparative scenario. In doing so, this dissertation will also highlight the importance of non-constitutional variables which are underrepresented in the aforementioned discussion.   This dissertation will compare the protection and enforcement of the RSS in Japan and Mexico. These countries were chosen because, notwithstanding their more apparent differences, they share scant judicial enforcement of the RSS despite the fact that such right is included in their constitutions. In this sense, although this dissertation will begin by comparing the text of the constitutions of Japan and Mexico, it will be demonstrated that a series of elements beyond such texts is actually what determines how social rights work in practice.                                                                   18 Frank B. Cross, “The Error of Positive Rights” (2011) 48:4 UCLA Law Review 857. 19 Connor Gearty, “Against Judicial Enforcement” in Conor Gearty & Virginia Mantouvalou, Debating Social Rights (Oxford: Hart Publishing, 2010). 20 Antonio Carlos Pereira-Menaut, “Against Positive Rights” (1988) 22:2 Valparaiso University Law Review 359. 21 Peter Gabel, “A Critique of Rights: The Phenomenology of Rights -Consciousness and the Pact of the Withdrawn Selves” (1984) 62 Texas Law Review 1581. 22  Carlos Portugal Gouvêa, “Social Rights agains t the Poor” (2013) 7 Vienna Journal on International Constitutional Law 454. 23 Sunstein at one time was also among the main authors against positive rights as can be seen in his Chapter “Against Positive Rights” in András Sajó, (ed.), Western Rights? Post-Communist Application (Amsterdam: Kluwer Academic Publishers, 1996). Nevertheless, in more recent works Sunstein has seemed to change such original position. More specifically, after the Grootboom  decision in South Africa in 2000, Sunstein seems to take an opposite view when he states that: “The distinctive virtue of the Court´s approach is that it is respectful of democratic prerogatives and of the limited nature of public resources, while also requiring special deliberative attention to those shoes minimal needs are not being met. The approach of the Constitutional Court stands as a powerful rejoinder to those who have contended that socio-economic rights don´t belong in a constitution”. Cass Sunstein, Designing Democracy: What Constitutions Do (Oxford: Oxford University Press, 2001) at 221-237. 24 See Christian Bjørnskov and Jacob Mchangama, Do Social Rights Affect Social Outcomes? (Copenhagen: Paper presented in September 9, 2013), available at: 4   With such purpose, the dynamic between constitution, judicial review and social attitudes will be described, along with the effect that such dynamic has regarding legal outcomes in RSS litigation for Japan and Mexico. The importance of the RSS and the possible special status that including such right in the constitution may provide will be inquiries at the core of this dissertation.    This dissertation will also analyze cases of judicial review to show the similar reasoning of the courts in both countries herein compared. Finally, this dissertation will argue that in the case of the RSS, and pertaining Japan and Mexico, neither constitutionalization, nor justiciability of such right improve welfare conditions.  1.2 Focus: constitutionalization and justiciability   This dissertation will focus and analyze the relationship between two concepts: constitutionalization and justiciability (with the implied importance of courts).  a) Constitutionalization  Black´s Law Dictionary Online defines a constitution as:   “the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers”.25  However, in this dissertation Joseph Raz´s definition will be used, due to its comprehensiveness and since, as will be discussed in Parts II and III, it is applicable                                                                  25 Black's Law Dictionary, 2d ed. (St. Paul: West Publishing, 1910), available at: 5  to both of the constitutions herein compared. In such regard, Raz has described the constitution as an entity with the following features:   1. it is constitutive of a legal system; 2. it is stable, at least in aspiration; 3. it is written  4. it is superior law; 5. it is justiciable; 6. it is entrenched, i.e., more difficult to change than other law; 7. it is expressing a common ideology.26  Regarding constitutionalization, three common connotations include the action:         1) To provide with or make subject to a constitution; 2) To incorporate into or sanction under a constitution; or 3) To treat as being subject to constitutional law. 27  In this dissertation the three connotations are applicable and thus, the constitutionalization of the RSS will be understood as: the incorporation of the RSS into the constitution which makes it constitutional law.    b) Justiciability and the importance of courts   This dissertation will give special importance to Raz´s fifth feature (justiciability)28, making the relationship between RSS as a justiciable right and its actual enforcement by the courts essential to evaluate the three aforementioned                                                                  26 Joseph Raz, “On the Authority and Interpretations of Constitutions. Some Preliminaries” in Larry Alexander (ed.), Constitutionalism. Philosophical Foundations (Cambridge: Cambridge University Press, 1998) at 153. 27  American Heritage Dictionary of the English Language (Boston: Houghton Mifflin Harcourt Publishing Company, 2016). 28 Although in a strict sense a number of traditional constitutions (e.g. the Swiss Constitutio n) do not rely on judicial review by a Supreme Court, in both of the countries herein compared the seven elements are (at least formally) applicable. 6  hypotheses. In such regard, it is important to identify which claims may be solved by judicial as opposed to political means:  “Justiciability…defines the boundaries between our legal and political systems. By delineating the scope of judicial adjudication of disputes, courts determine what matters are appropriate for legal determinations, and what matters must be left for political resolution…A finding that a matter is non-justiciable may immunize certain government actions and laws from judicial review and may deny parties wronged by government action a judicial remedy.”29  On this train of thought, Peter Gordon Ingram firstly distinguishes justiciability depending on what matters are proper to be analyzed by a court of law.30 Should the matter be improper (if it is not a legal matter or if it is clearly reserved to the legislative or executive for being a political matter), the court should defer its competence to the appropriate instance. This establishes boundaries over what can and what cannot be reviewed by courts (i.e. strictly moral and ethical issues, rules of etiquette, political matters, etc.). Thus, a court can be either properly or improperly deciding upon a matter.   Secondly, Ingram considers that the meaning of justiciability also refers to whether a matter is capable of being decided by a court of justice.31 Whereas in the first definition the solution is straightforward and binary (to accept or deny competence); in this second consideration of justiciability, there is a gray area. It is not enough that a matter should be justiciable by the courts; “it is also necessary to ensure that it is capable of being adjudicated in regular fashion by the courts when it is formally within their remit.”32 Thus, a court must have the capacity (including fact-finding powers,                                                                  29 Lorne Sossin, Boundaries of Judicial Review: The Law of Justiciab ility in Canada (Toronto: Casswell, 1999) at vi. 30 Peter Gordon Ingram, “Justiciability” (1994) 39 American Journal of Jurisprudence 353. 31 Ib id. at 355. 32 Ib id. 7  democratic support, knowledge of budgetary and social policies, and necessary guarantees) to enforce their decision regarding a right. 33   In this dissertation both meanings of the term justiciability will be thoroughly scrutinized when studying the role of courts regarding matters and rights that are both proper, and which are capable of being decided by them. Having explained the previous considerations for the term, a more satisfactory working definition of justiciability that will be used in this dissertation is the quality for a matter or a right of being properly decided by a capable court of justice.     Moreover, in order to evaluate the three hypotheses, it is not sufficient for a right to be justiciable. To give substance to such right it must also be enforceable. As Jackbeth Mapulanga declares:   “Distinguishing justiciability from enforceability is crucial to the debate on the justiciability of ESCR because enforceability is wrongly equated with justiciability. The enforcement of human rights deals with the identification of the entitlements and duties created by the legal regime, which have to be maintained and executed. Justiciability, on the other hand, presupposes the existence of a review mechanism to determine non-compliance with the terms of the legal regime. Although they are two different concepts, a close relationship exist between justiciability and enforceability, as the former is a direct follow up of the latter.34                                                                    33 Regarding its practical application, David Wiseman also provides a classification of justiciability by two types of arguments considered by the courts: The first type of arguments are those addressing the issue of whether the claim is available for adjudication, as opposed to some other form of social decision making. According to such arguments, if there is not a specific protection for a right, there can be no claim available for adjudication by courts. As a result, such claims can be pursued only in alternative social decision -making institutions, such as legislatures. The third type of arguments are those about whether a claim is suitable for adjudication. Such arguments are oriented to the institutional capacity and legitimacy of the courts. Some examples of such arguments include arguments that address the redundancy, abstractness, complexity, or political sensitivity of a claim. David Wiseman, “The Charter and Poverty: Beyond Justiciability” (2001) 41:4 The University of Toronto Law Journal 425. 34 Jackbeth Mapulanga-Hulston, “Examining the Justiciability of Economic, Social and Cultural Rights” (2002) 6:4 The International Journal of Human Rights 29. 8  Needless to say, there can be no rights enforcement by the courts unless they have previously been considered justiciable and therefore subject to their review and (should the case be) adjudication.”35   Therefore, and returning to the three aforecited hypotheses, this dissertation will first determine if the constitutionalization of the RSS makes it justiciable. This dissertation will then evaluate if such right, by becoming justiciable, is more frequently invoked by plaintiffs and reviewed by courts. Then, this dissertation will evaluate if such review leads to an increased enforcement by such courts. Finally, if an increase in enforcement of the RSS in fact occurs, this dissertation will evaluate if such increase is correlated with a betterment in welfare.   As can be seen, each hypothesis is conditional and directly interconnected with the others, and all have in common the role of the courts in making the RSS viable; this is the reason why the relationship between constitution, social rights, litigation and courts will be at the center of this research.     In such regard, the recent cases of social rights challenged by marginalized groups and adjudicated in Indian,36 and more recently in South African courts37, have shown an important mechanism for achieving equality, poverty relief, and positive social transformation via the national courts.38 Thus, the focus on justiciability and the                                                                  35 Nevertheless, as will be explained in Chapter 3, there are some cases in which a constitutional right doesn’t need to be justiciable in order for it to be enforceable. Examples of non-justiciable but enforceable rights include declaratory rights and directive principles.  36 Ajay Verma, “The Experience in India” in Roger Blanpain (ed.), Law in Motion (The Hague: Kluwer Law International, 1997). 37 Peris Jones and Kristian Stokke (eds .), Democratising Development: The Polities of Socio Economic Rights in South Africa (Leiden: Martinus Nijhoff, 2005). 38 Although there is a debate about the practical results of justiciable social rights in both India and South Africa. For examples of both sides on such debate see Madhav Khosla, “Making social rights conditional: Lessons from India” (2010) 8:4 New York University School of Law Journal 739 and Marius Pieterse, “Possibilities and Pitfalls in the Domestic Enforcement of Social Rights: Contemplating the South African Experience ” (2004) 26 Human Rights Quarterly 882.  9  courts has become relevant in social welfare studies due to their possible role as “enablers of social transformation”, understanding social transformation as “the altering of structured inequalities and power relations in society in ways that reduce the weight of morally irrelevant circumstances, such as socio-economic status/class, gender, race, religion or sexual orientation”39.   With the previous considerations, courts may contribute to social transformation directly: • By providing an arena in which concerns of marginalised groups can be raised as rights based claims (with social rights litigation as the paradigmatic case).40 • By serving as a barrier against erosion of existing pro-poor institutional arrangements that not necessarily involve welfare rights entitlement.41  Courts may also contribute to social transformation indirectly: • By enabling marginalised groups to more effectively fight for social transformation in other arenas by securing their effective rights of political participation, rights to information, collective action, and fundamentally, by securing the integrity of the democratic political system as such. • By “passively” serving as a public platform where claims can be articulated. As a focal point for mobilization and publicity this may have important political effects even in the absence of a judgment acknowledging the claim.42  In this dissertation the focus of analysis will be limited to the direct effects of claims based in the RSS. Accordingly, this dissertation intends to answer if                                                                  39 Roberto Gargarella, “Theories of Democracy, the Judiciary and Social Rights” in Roberto Gargarella, supra note 17. 40 Ib id. 41 This is particularly relevant in countries formerly pursuing some form of socialism, where state subsidies  for social priorities (pensions, welfare benefits, education, health, basic foods) have been discontinued or reduced, due to ideological change and/or financial strain resulting in the introduction of structural adjustment policies and liberalisation of the economy. András Sajó (ed.), Western Rights? Post-Communist Application (Holland: Kluwer Academic Publishers, 1996). 42 Siri Gloppen, “Courts and Social Transformation: An Analytical Framework” in Roberto Gargarella, supra note 17, at 37.  10  Japanese and Mexican courts act as enablers of social transformation. To answer such question, this dissertation will focus on how including the RSS in the constitution might make it explicitly justiciable and thus enable courts to produce social transformation.   In sum, this dissertation will first analyze if including the RSS in the constitution of each compared country may increase the number of cases invoked by the population due to its hierarchy as “constitutive and superior law”. Secondly, this dissertation will determine if making the RSS justiciable translates in more instances where such right is reviewed, adjudicated and enforced. Thirdly and finally, this dissertation will determine if the previous two conditions lead to welfare betterment of both the plaintiffs and the overall population of each country compared.   1.3 Comparing Japan and Mexico  Having established the objective and focus of this dissertation, it is important to justify the selection of Japan and Mexico as compared countries in order to evaluate the aforecited hypotheses. An ideal comparison would require two countries that would allow evaluating the three hypotheses. In such regard, even though both Japan and Mexico have included the RSS in their respective constitutions, there are many distinctive elements in its wording and its actual practice which provide an interesting case suitable for comparison. More specifically, the comparison between Japan and Mexico is relevant: a) Regarding the three hypotheses previously established and, b) Regarding the viability of the comparison itself.   a) Regarding the three hypotheses previously established  i) Constitutionalization hypothesis:  11  Mexico was the first country to include social rights in its 1917 constitution, and also among the first to mention the RSS as a product of the Mexican Revolution. Japan has a more recent constitution dating to 1947 which, regarding social rights, can be considered both a product of the Occupation Army, and of the New Dealer´s ideology. But although Mexico has a longer constitutional tradition regarding social rights, it has a very succinct and limited provision regarding the RSS, which contrasts with the detailed, ample and progressive wording of such right by the Japanese constitution. Moreover, the RSS as included in Article 25 of the Japanese constitution would at first glance appear as universal and unconditional, whereas the same right established by Article 123 Paragraph XXIX of the Mexican constitution would appear to be limited to affiliated workers and their families43. Such contrasts enable an assessment of the constitutional RSS with different origins, traditions, details and scope in order to evaluate the constitutionalization hypothesis. This dissertation will evaluate the RSS in its constitutional provision and practice to demonstrate that, in the two countries herein compared, the constitutionalization hypothesis is false.  ii) Justiciability hypothesis   Mexico has a longer tradition regarding social rights litigation, a higher number of lawyers, and almost the double number of judges per capita when compared to Japan, which would suggest more ease of access to justice.44 Nonetheless, even though the Mexican judiciary has been very active in a number of issues including other social rights such as education and labor disputes, it has been very reluctant to assert the RSS as a justiciable right without a previous labor relationship. In the case of Japan, the RSS can be evaluated independently of labor but the judicial practice has severely limited the content of such right, and in almost no cases has it                                                                  43 As will be properly explained in Part III, this has recently changed with the New Human Rights Reform of 2013 by virtue of which now Mexico recognizes a right to social security that needn´t be labor dependant.  44 The exact numbers and their analysis will be compared in Chapters 8.5 for Japan, and 12.5 for Mexico. 12  enforced it. Such contrasts allow for an assessment regarding justiciability and enforcement of the RSS independent of constitutionalization, and as such, offer a compelling contrast to evaluate the justiciability hypothesis. This dissertation will provide such assessment and demonstrate that, in the two countries compared, the justiciability hypothesis is false.  iii) Welfare hypothesis  Both Japan and Mexico guarantee the right of access to justice (Article 32 of the Japanese constitution, and Article 17 of the Mexican constitution)45 , and both explicitly recognize the court´s powers to adjudicate and enforce their decisions (Article 81 of the Japanese constitution, and Article 17 of the Mexican Constitution)46. Therefore, at least in theory, the welfare hypothesis could be considered feasible since the population of both countries may claim the RSS in court, and such court has the formal powers to acknowledge, adjudicate and enforce such right. However, the real question for both countries is if the judiciary is capable and willing to enforce the RSS, and if there is evidence that such enforcement has generated better levels of welfare not only for the plaintiffs, but also for the general population.47                                                                    45 Japan: Nihonkoku kenpo [Constitution of Japan] [Constitution] Nov 3, 1946, art. 32. No person shall be denied the right of access to the courts. Mexico: Constitución Política de los Estados Unidos Mexicanos [Consitution of Mexico] [Constitution]. Feb 5, 1917, art. 17. All people have the right to enjoy justice before the courts under the terms and conditions set forth by the laws. The courts shall issue their rulings in a prompt, complete and impartial manner . Court’s services shall be free and judicial fees are prohibited. 46 Japan: Nihonkoku kenpo [Constitution of Japan] [Constitution] Nov 3, 1946, art. 81. The Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act. Mexico: Constitución Política de los Estados Unidos Mexicanos [Consitution of Mexico] [Constitution]. Feb 5, 1917, art. 17: …Federal and local laws shall provide the necessary means to guarantee the independence of the courts and the full enforcement of their rulings.  47 Posed in such way it is rather difficult to adequately evaluate an increase in general welfare. First, because such increase must have a strict correlation with the enforcement of the RSS by the courts, and do not take into consideration other factors such as non-litigious ways of improvement inspired or based in the RSS. Secondly, because such increase is based in two previous conditional arguments: that the RSS has been constitutionalized, and that by being constitutionalized it increased its possibility of being claimed by plaintiffs and reviewed by courts. Thirdly, because determining “better levels of welfare for the general population” may be a subjective endeavor in itself if the previous correlations have not been clearly demonstrated. 13  In such regard, this dissertation acknowledges that there are other ways of increasing welfare rights by litigating using arguments apart from the constitutional entitlement to the RSS. Moreover, there are various non-judicial processes for achieving welfare for particularly vulnerable groups. Nonetheless, the hypothesis to be evaluated by this dissertation is restricted to the transformative powers of the courts by making a constitutional RSS justiciable. Therefore, this dissertation will analyze the judicial decisions regarding the RSS in both countries and determine if any of them generated a welfare betterment for the plaintiffs and society at large. This dissertation will show that the judicial decisions regarding the RSS have no significant impact in welfare betterment and that, in the two countries compared, the welfare hypothesis is false.    b) Regarding the viability of the comparison  After having done the preliminary research, no constitutional comparisons between both countries could be found. A gap in the existing literature might merit a dedicated analysis but only if such analysis is possible. In other words, the main question to answer when proposing this research was if comparing Japan and Mexico was a viable endeavor for this purpose.   Regarding the first question, both objects of comparison must possess a significant level of similarity but with enough differences as to not being identical. This quality is known as the tertium comparationis and represents the commonality necessary to perform any type of comparison. 48  In the two countries compared relevant similarities include:  1) Having a constitution with all seven elements included in Raz´s definition.  2) Having a civil law tradition which implies that:                                                                  48 For an analysis of the term and a critique see Esin Örücü, “Methoodology of Comparative Law” in J.M. Smits, Elgar Encyclopedia of Comparative Law (Northampton: Edward Elgar Publishing Limited, 2006). 14  i. its core principles are codified into a referable system which serves as the primary source of law; ii. the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code;  iii. the judge is usually the main investigator, and the lawyer's role is to advise a client on legal proceedings, write legal pleadings, and help provide favorable evidence to the investigative judge; and iv. the legal system has a very limited use for judicial precedents.49 As will be further elaborated in the chapters pertaining Japan and Mexico, having a civil law tradition is closely related to the dynamics between the executive, legislative and judicial powers which tends to undermine the latter. Since in civil law countries the basic principles are contained in an enacted code, such is the source of the law, which leaves the judiciary with a more limited freedom for decision-making when compared to common law countries.50  3) Having provisions regarding the RSS since the enactment of their current constitutions (since 1917 in Mexico, and since 1947 in Japan). 4)  Having a strong executive power. 5) Having almost undisputed single-party governments: Partido Revolucionario Institucional (PRI) for Mexico, and Liberal Democratic Party (LDP) for Japan. 6) Having the institution of judicial review both for statutes and government actions. 7) Having roughly the same population (127 million as of the 2015 census).  All the aforementioned similarities provide a similar background pattern regarding social rights adjudication and enforcement. Such pattern includes a passive judiciary which, although having constitutional provisions for the RSS, seldom acknowledges it by judicial review, and is often deferential to the legislative and executive branches lead by single-party governments. Such pattern also makes comparing Japan and                                                                  49 What is the Civil Law? - LSU Law Center, available at: 50 As will be discussed later, such line of reasoning severely limits the role of the courts as “social transformators” in contrast to common law countries. 15  Mexico both relevant and viable regarding the three hypotheses previously established.   1.4 Methodology  Being the most common theoretical tool for constitutional comparisons, functionalism was chosen as a starting point to develop the proper methodology for this dissertation. Functionalism is a comparative legal methodology which considers every society has a legal solution for similar issues; this is considered the “function of the norm”.  Yet, the forms of these legal solutions are not always equal; these are considered the “legal institutions.” While the functions are similar in every legal system, the institutions tend to be different. Thus, the advantage of this method lies in the comparison of institutions that may appear to have a different form, but actually accomplish a very similar function51.  Functionalism can be divided in three main phases.52 In the first phase, it identifies two similar functions within two or more normative systems and the institution or institutions used to develop such function. In the second phase, functionalism compares and evaluates the legal institution vs. its actual function to determine if there is an opportunity for the improvement of an institution in order to better comply with an expected function. Finally, in the third phase functionalism usually proposes suggestions for improvement in one or both of the compared institutions.  a) Merits of the Functionalist Approach                                                                   51 Max Rheinstein, “Teaching Comparative Law” (1938) 5 University of Chicago Law Review 615, at 615-618.  52 Ralf Michaels, “The Functional Method of Comparative Law” in Oxford Handbook Of Comparative Law  (Oxford: Mathias Reimann & Reinhard Zimmermann eds., 2006) at 346. 16  Mary Ann Glendon has written an analysis of functionalism as a viable methodology for comparative law. Glendon gives praise to functionalism which begins by a close inspection of the text, and then proceeds to the consideration of purpose both in the light of history, and in the light of circumstances as they exist at the time of the comparison.53 In such manner, the constitutional text is used as the first and most important reference from which the other elements of comparison are derived, and limits such elements to the extent that they remain relevant to understand such text.   Thus, one first merit of functionalism over other methods of legal comparison is its logical structural analysis beginning by the institution/norm as it is in the legal text and then following with the contextualization. This has the virtue of avoiding relativism by having the legal text as the main reference, and giving a firm point of entry to the comparison at hand.  On this same regard Hent Kalmo praises functionalism for taking whole institutions (instead of simple concepts), as a basic integrated unit of meaning. For example, if a normative system is deconstructed to their bare concepts, the analysis of the function as a whole might be ignored. This is the failure generally known as “atomic jurisprudence”, which functionalism is designed to avoid. 54   A second merit of functionalism thus is having a clearly defined unit of comparison. In such way, it is possible to ascertain that the concept to be contrasted and evaluated doesn’t end up forming a totally different legal structure which renders analyses unreliable.                                                                   53 Mary Ann Glendon, “Comparative Law as Shock Treatment” (1993) 11:2 Method 137. 54 Hent Kalmo, “How Comparable are Legal Concepts? The Case of Causation ” (2006) 1 Juridica International 45. 17  On other point of view, David Gerber notes the necessity of having accessible and transmissible information, a foundational stone for any comparative science. He considers functionalism is able to provide a common language with scalable scenarios (meaning they can be used as bases for more thorough or similar studies), and transferable information with clarity, usefulness and scientific rigor.55   A third merit of functionalism thus is its scalability, understood as the capacity of using its analyses and conclusions as units of knowledge with the capacity to be scientifically transferable. For practical purposes, this means the possibility for other social studies to use the terminology, method and results of functionalist comparisons for their own disciplines.  b) Criticisms against functionalism  Criticism against functionalism can be divided into fundamental criticisms and minor criticisms.   Fundamental criticisms:  The first of the fundamental criticisms argues that it is unfeasible to achieve a proper comparison.  Pierre Legrand explains that there are cases where the foreign law does not have a comparable institution, does not address the same issue, or gives an institution a completely different function than the domestic law. According to Legrand, as long as functionalism “remains driven by the entrenched urge to confine its analytical framework to the identification of ‘sameness’ in the formulation of statutes or the outcome of judicial decisions across jurisdictions, comparative legal                                                                  55 David J. Gerber,  “System Dynamics: Toward a Language of Comparative Law” (1998) 46:4 American Journal of Comparative Law 719. 18  studies has little to offer legal theory other than the pseudoscientific respectability connected with institutional fetishism”.56   The second of the fundamental criticisms refers to the use of comparative law as a way to force harmony or unification. Once again, Legrand states that “being desperate in its search for similarities, functionalism leads to the instrumental dissolution of specific cultural forms into generic strategic effects”.57 The postmodern legal scholar Esin Örücü agrees that harmonization is a valid goal for law reform, but only when harmony is achieved by cultivating and acknowledging diversity and not by eliminating it.58 However, according to Örücü and Günther Frankeberg that is not the case since functionalist comparatists work within the dichotomies of comparative law. Such dichotomies include: universalism v. relativism; east v. west; parent v. derivative legal traditions and; developed v. developing normative cultures. According to Frankenberg, such dichotomical reasoning leads to impoverished, partial, and dangerous comparisons.59   Minor criticisms:   Among the less fundamental criticisms is the one that states that the comparatist is unable to truly understand foreign law as a foreigner would . Frankenberg in this matter is skeptical about the idea of a legal comparatist truly understanding foreign legal cultures, as a native would.60 Frankenberg even refers                                                                  56 Pierre Legrand, “Comparative Legal Studies and the Matter of Authenticity” (2006) 1:2 Journal of Comparative Law 360, at 367.  57 Pierre Legrand, “Paradoxically, Derrida: For a Comparative Legal Studies” (2005) 27 Cardozo Law Review 631, at 705 58 Esin Örücü, Critical Comparative Law: Considering Paradoxes for Legal Systems in Transition  (Deventer: Kluwer, 1999). 59 Günter Frankenberg, Comparative Law as Critique (Cheltenham: Edgar Elgar Press, 2016). 60 The term legal culture refers to multiple different ideas, which are not always sufficiently separated. Legal culture often describes merely an extended understanding of law and is thus synonymous with “living law” (Eugen Ehrlich) or “law in action” (Roscoe Pound). Sometimes, the term legal culture is used interchangeably with the term legal family or legal tradition. Legal sociologists especially understand legal culture as the values, ideas 19  to this problem as the “dilemma of the tragic comparatist” being such person “well aware of the limits and defects of her home law and her intellectual situation. Confined to the borders of a national legal regime and the parochial nature of the corresponding legal education, the tragic self dresses casually and bemoans a state of “consecrated ignorance” of foreign laws and of her own alienation”.61  A second minor criticism is described by Edward McWhinney who admonishes that, when comparing institutions it is difficult, and sometimes impossible, to determine which value system should be used.62 Thus, the comparatist applies its own values to a legal system which may have a diverse axiological base. Since values are intertwined in normative systems, this may lead to inaccurate comparisons.  A third common but minor criticism refers to functionalism limitations according to the classical canon of comparative law  (a.k.a. “Country and Western tradition of Comparative Law”63). This canon implies analyzing from the same Eurocentric and dialectical fashion which constitutes its theoretical foundation. According to such critique, each comparison will be directly affected by the bias, ideology, terminological and conceptual limitations of each western comparatist.                                                                   and attitudes that a society has with respect to its law (Lawrence M. Friedman, James Q. Whitman). Sometimes legal culture itself is seen as a value and placed in opposition to the barbarism of totalitarianism (Peter Häberle); here, legal culture is used synonymously with the rule of law. Others understand culture as certain modes of thinking; they speak of episteme or mentalité (Pierre Legrand), legal knowledge (Annelise Riles) and collective memory (Niklas Luhmann), law in the minds (William Ewald) or even cosmology (Rebecca French, Lawrence Rosen). In addition, an anthropologically influenced understanding exists of legal culture as the practice of law (Clifford Geertz). See Ralf Michaels, Forthcoming in Oxford Handbook of European Private Law (Oxford: Oxford University Press). 61 Günther Frankerberg, “Stranger than Paradise: Identity and Paradise in Comparative Law” (1997) 2 Utah Law Review 259, at 266. 62 Many questions arise in this matter. Should effectiveness be measured in economic or moral terms? Should rule of law be preferred to a non legal institutional system? See Edward McWhinney, “Operational Methodology and Philosophy for Accommodation of the Contending International Legal Systems ” (1964) 50:36 Virginia Law Review 345. 63 William Twining, "Comparative Law and Legal Theory: The Country and Western Tradition" in Ian Edge, (ed.), Comparative Law in Global Perspective (New York: Transnational Publishers Ardsley, 2000). 20   c) In defense of functionalism  Many of the previous criticisms against legal functionalism are actually misconceptions of the methodology itself. To begin with the fundamental criticisms, it is true that functionalism looks for similarities, and it is true that Konrad Zweitgert infamously stated that “if the comparatist finds no functional equivalent in a foreign legal order, he should ‘check again whether the terms in which he posed his original question were indeed purely functional, and whether he has spread the net of his researches quite wide enough’.64 But such phrase has been taken out of context and overused. In such sense, as Ralf Michaels argues “the presumption of similarity must be placed in its historical context. It was formulated after a war had been fought on the allegation of insurmountable differences.”65   More importantly, the modern understanding of functionalism uses functional equivalence which implies “finding that institutions are similar in one regard (namely in one of the functions they fulfill) while they are (or at least may be) different in all other regards —not only in their doctrinal formulations, but also in the other functions or dysfunctions they may have besides the one on which the comparatist focuses—”66. Thus, it is not that contemporary functionalism forces “sameness” at all levels of comparison, but only uses it as a first possible approach between two institutions, and always acknowledging that such similarity is limited both by the other possible formulations of such institution, and by the implicit bias of the comparatist. Acknowledging the previous limitations doesn’t undermine the endeavor of comparing two legal systems, on the contrary, it allows for other scholars to build on                                                                  64 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford: Oxford University Press, 1998) Introduction at 40. 65 Ralf Michaels, “The Functional Method of Comparative Law” in Mathias Reimann and Reinhard Zimmermann, The Oxford Handbook of Comparative Law (Oxford: Oxford University Press, 2012) at 369. 66 Ib id at 371. 21  such knowledge from different perspectives for the same institutions. That is indeed one of the purposes of any scientific discipline.   Regarding the criticism of mishandling cultural specificities by trying to feign harmony, this is another misunderstanding. Maybe during the WWII and shortly afterwards functionalism tried to overemphasize harmony due to the events that had recently unfolded, but most of the contemporary understandings of functionalism place an undisputed importance on cultural, economic and political contextualization. Furthermore, “rightly understood, functionalist comparative law assumes that legal rules are culturally embedded… What distinguishes functionalists from culturalists is not the degree of attention to culture, but the kind of attention. What critics call acultural is the functionalists’ resistance to adopting an insider’s view, their unwillingness to limit themselves to culture as such, and of course their reconstruction of culture as functional (or dysfunctional) relations.”67 Thus, it is not that functionalists deny the importance of culture for law, but rather that they try to maintain, as much as possible, an observer´s distance with the culture that contains the analyzed legal system in order to be as neutral in their comparisons as possible.  The previous intention of neutrality also adresses the minor criticism that a functional comparatist cannot understand the foreign law as a foreigner would. Indeed, not only does the functionalist comparatist accepts this as a fact, but also tries as much as possible to avoid pretending any “nativeness” to the compared legal system. However, instead of falling for the “dilemma of the tragic comparatist”, the contemporary legal functionalist tries to overcome the gap in knowledge from the foreign system with as much contextual information as possible. Such information includes judicial reasoning and decisions, economic and political considerations for the enforcement of rights and cost/benefit analysis for lawmaking and adjudication, among others. In addition, what the critics may consider gross reductionism is just                                                                  67 Ib id at 365. 22  the contrary, since most contemporary functionalists “focus on the complex interrelatedness of societal elements, creating a picture not less but more complex than that created by the participants in a legal system”.68  Regarding the criticism about imposing the comparatist´s value system into the object of comparison, the contemporary comparatist tends to balance this problem by rooting its comparison not only on the theoretical but also on the practical elements of a legal system and avoid too much dependence on abstract rules. In fact, “contemporary functionalism explicitly ask that comparatists look not only at legal rules (‘law in books’), nor only at the results of their application (‘law in action’), but even beyond at non-legal answers to societal needs”.69  Finally, the Western Canon criticism is very frequently invoked. Once again, this is a strawman fallacy in which the criticism is aimed at an outdated version of functionalism. It is true that the Western Canon was used as an imperialistic worldview, and that both during WWII and even during the postwar era it was used for legitimation and imposition of “superior” legal systems to colonies and defeated nations alike. However, such logic is clearly incompatible with today´s globalized world in which trying to impose value systems and normative standards have been elusive at best and impossible at worse.   Even from its design, most contemporary legal functionalism has abandoned its pretenses of universalism and of being capable of “finding some essence or the ultimate truth of legal institutions”.70  Thus, not all versions of functionalism intend to “determine the better law”, “unify the law” or “critique other legal orders standing on the superiority of their own”. For this dissertation, for example, such objectives of the functionalist methodology will neither be evaluated nor pursued.                                                                   68 Ib id at 364. 69 See Konrad Zweitgert and Hein Kötz, supra note 64, at 38. 70 Michele Graziadei, “The Functionalist Heritage” in Pierre Legrand and Roderick Munday (eds.), Comparative Legal Studies: Traditions and Transitions (Cambridge: Cambridge University Press, 2003) at 27. 23   As can be seen, many of the criticisms against functionalism miss its target due to misunderstandings, outdated perspectives, or approaches which have already been updated, balanced and corrected. Having defended functionalism against most of its common criticisms, in the next sub-section the specific use of functionalism in this dissertation will be established.    d) The use of functionalism in this dissertation  In this dissertation, due to its clarity, and flexibility for improvement, functionalism was used as a starting point to identify the first inquiry to be answered. Such inquiry consisted in determining if the constitution was a viable institution for performing the functions of promoting, protecting and realizing the RSS. In such manner, according to functionalism´s first phase, the function identified as relevant for this research was the protection of the RSS, and the institution identified to perform such function was each country´s constitution. Regarding the second phase, both Article 25 of the Japanese constitution and Article 123 Par. XXIX of the Mexican constitution were evaluated regarding their fulfillment of the RSS when judicial review was performed by the courts of each country. Regarding the third phase of functionalism, this dissertation proposes other ways of protecting the RSS which do not require their constitutionalization or justiciability, and suggests further research in non-judicial approaches.   Although the fundamental criticisms against functionalism have been countered, regarding the minor ones:  i) This dissertation intends to go beyond the “dilemma of the tragic comparatist”. To do so, instead of obviating possible cultural differences, specific chapters dedicated to the historical, cultural and legal 24  framework of both countries are included along with the legal institutions compared.  ii) To avoid the classical canon criticisms, this dissertation specifically chose countries that are not classic representatives of such canon. Moreover, this dissertation will explicitly deny the east vs. west paradigm as applicable to the two countries compared and regarding the three hypotheses evaluated.  iii) This dissertation not only analyzes similarities along with differences, but most importantly, will conclude that a similar pattern within rights, litigation and the courts renders very similar results in the two countries. However, this dissertation avoids forcing sameness by providing a detailed account of the contextual elements for the institutions compared . Moreover, to specifically address the problem of comparing different value systems within the law, this dissertation has specifically included a qualitative analysis of the courts regarding their independence in both countries.  iv) Finally, with the intention to avoid forcing harmonization by eliminating diversity, this dissertation includes not only the institutional, policy and law-maker perspectives, but also very importantly, the general attitudes towards law and litigation in both countries. This approach reduces the risk of simplifying legal cultures by including the dynamics between the three branches of power and the general population regarding social rights in general, and the RSS in particular.   Thus, this dissertation´s version of functionalism is very similar to most of its contemporary accounts (or at least to what Ralf Michaels denominates equivalence functionalism). 71  Such version of functionalism has surpassed its fundamental criticisms, and has taken into consideration the minor ones for balance and                                                                  71 See Ralf Michaels, supra note 65, at 356-363. 25  correction. More importantly, functionalism understood in the aforecited terms is compatible with the evaluation of the three main hypotheses of this dissertation: the constitutionalization, justiciability and welfare hypotheses.   1.5 Relevance of this research   Having reviewed the corresponding literature, a series of problems were identified. The first problem is that, although there are sources supporting contrasting visions of social rights, they all remain too general and rarely delve into specific countries.72 Thus, it is uncommon to find case studies, and even less common to find comparative analyses between Japan and Mexico.   In such reasoning, a second problem lies in the fact that, although there are some constitutional comparisons between Japan and other Asian countries73, and some constitutional comparisons between Mexico and other Latin American countries 74, no constitutional comparison between Japan and Mexico could be found. For the two countries compared, the previous fact implied working without comparative references for the case of constitutional social rights in general, and the constitutional RSS in particular.    A third problem, closely related to the previous one, is that both comparative constitutional and social security literature, tend to equate Mexico to Latin America, or a developing economy.75 In a similar fashion, Japan is oversimplified as either                                                                  72 See Robert Cox, “The Consequences of Welfare Reform: How Conceptions of Social Rights are Changing” (1998) 27:1 Journal of Social Policy 16. 73 See Rosalind Dixon & Tom Ginsburg, Comparative Constitutional Law in Asia (Cheltenham: Edwar Elgar, 2014). 74  See Giancarlo Rolla, “La evolución del constitucionalismo en América Latina y la originalidad de las experiencias de Justicia Constitucional” (2012)16 Anuario iberoamericano de justicia constitucional 329.  75 See José Luis Cordeiro, “Constitutions around the World: A view from Latin America” (2008) IDE Discussion Paper No. 164.   26  East Asia or within the cluster of developed economies.76  Therefore, from this standpoint, the many particularities of each system are usually overlooked based solely on regional or economic considerations.   Having identified these three main problems, and based on the previously mentioned methodology, this dissertation aims to provide an accurate framework for a comparative study that evaluates the impact of constitutional provisions in welfare. This dissertation will also demonstrate that both developed and developing countries, as are Japan and Mexico, have common problems with social rights that go beyond wealth. Understanding these other problems along with the classic economic analysis might be relevant for the scholars, policymakers and legal activists that want to improve welfare in both countries.  Finally, this dissertation intends to identify specific elements in social rights practice that might interact with constitutional provisions. The identification and appraisal of such elements might be useful for the study of social rights practices in other countries. In this regard, this dissertation may be relevant as a starting point for further comparative analysis (both in law and other social sciences).  1.6 Main arguments of this dissertation  After conducting the pertinent research, in the countries herein compared no evidence was found to support the constitutionalization hypothesis or the justiciability hypothesis. It was also found that in both countries, making the RSS justiciable did not generate substantial increase in the living conditions for the population it intends to protect (contrary to the welfare hypothesis). This dissertation, therefore, surmises that both Japan and Mexico might be exceptions to the three hypotheses.                                                                   76 See Yeh Jiunn-Rong & Chang Wen-Chen, “The Emergence of East Asia Constitutionalism: Features in Comparison” Asian Law Institute, Working Paper Series No. 6 (August 2009) 34.   27   It will also be established that both in Japan and Mexico: a) the civil law legal tradition, single-party rule and strong and interventionist executive power; b) the relationship between international and domestic law; c) the role of the judiciary in social rights review and enforcement and; d) the social attitude towards law and litigation, have more relevance to determine the value of the RSS than its constitutionalization.  Regarding point a), both countries have a historical tradition of civil law which implies a stronger power for statutes than that for judicial decisions. It will be demonstrated that the civil law tradition along with single-party rule and a strong executive power enables shaping, nullifying and even overturning judgments that advance and acknowledge social rights. Additionally, the executive in the countries herein compared can designate members of the judiciary, undermining in this way both the judicial independence and the separation of powers.  Regarding point b), in both countries compared signing more international treaties has by no means improved enforcement of social rights. It will be argued that Japan and Mexico have failed to take international human rights protections to federal and municipal laws, leading to very low levels of enforcement. Moreover, various cases will be exposed in which the judiciary has used domestic legislation to impede compliance with international law protecting the RSS.   Regarding point c), a qualitative analysis of cases in both countries shows a passive and conservative judiciary. It will be argued that these attitudes were ingrained in the judiciary system in order to promote compliance with the status quo. Moreover, in both cases, it will be proven that the judicial branch has frequently served as a legitimizing device for the government, confirming policies and decisions, as opposed to exercising judicial review to protect human rights.   28  Finally, regarding point d), there is a shared negative attitude towards law and litigation. However, the reasons for this discontent are different in each country. In the corresponding chapters, it will be revealed that whereas in Japan there is a traditional preference for nonlegal agreements and conciliation, in Mexico inequality and corruption, both real and imagined, are the main cause for avoiding legal remedies (albeit less so than in the case of Japan).   In this dissertation it will be argued that the sum of the previous four elements creates, both in Japan and Mexico, a legal culture in which including the RSS in the constitution and making it justiciable doesn’t necessarily increases its adjudication or enforcement.      1.7 Organization of the dissertation  This dissertation is divided into V Parts each with its corresponding Chapters and, when applicable, Sections and Subsections.   Part I is the Theoretical Foundation for this dissertation (which will be applied to the cases discussed in Parts II and III).  Chapter 1 includes the objective and focus of this dissertation, the justification for the countries compared and its relevance, as well as a brief discussion of the methodology chosen and main arguments made.  Chapter 2 includes the discussion on the background, the transition from the liberal state to the welfare state, and the development of social rights in international law.   Chapter 3 includes general considerations regarding the constitutionalization of social rights. The different methods of constitutional inclusion are considered, and the arguments for and against such constitutionalization are presented.  29   Chapter 4 includes a detailed discussion regarding justiciability for social rights and enforceability. The chapter then provides arguments for and against the justiciability of social rights.  Chapter 5 analyzes the RSS, including its lack of an official or common definition. The RSS is then discussed from its development in international law to the domestic obligations it generates. A contemporary distinction between social security, social assistance and social insurance is also provided.  Part II studies the case of Japan.  Chapter 6 recounts the Japanese welfare state from its origins to its modern concept. The key moments for such state are highlighted along with its current problems of low fertility, an aging population and the subordinated role of women.   Chapter 7 overviews social rights in Japan, including the problems of international versus domestic law, and the problems regarding social rights in law and practice.   Chapter 8 describes, explains, and discusses the Japanese judiciary, judicial review, and the ideological and social problems for litigating social rights.  Chapter 9 builds upon the general analysis of social rights and delves into the right to social security (RSS) as defined in the Japanese constitution´s Article 25.   Part III studies the case of Mexico.  Chapter 10 develops the history of the Mexican welfare state from its origins to its modern concept. The chapter ends with a general perspective on the current situation for welfare in Mexico. 30   Chapter 11 is dedicated to the study of social rights. The particularity of social constitutionalism is clarified along with its legacy for the Mexican social programs which generate a sui generis notion of welfare protection in Mexico.   Chapter 12 is dedicated to the analysis of the Mexican judiciary and judicial review. The chapter evidences the intervention of the executive branch and the president which, along with inequality, corruption, and lack of trust, are important reasons for poor enforcement of social rights in Mexico.  Chapter 13 is dedicated to the specific analysis of the right to social security (RSS) in Mexico. An important distinction between theory and judicial practice will be made by comparing the constitutional RSS, as provided in Article 123 Par. XXIX, to its actual interpretation by Mexican courts up to this day.   Part IV establishes closing arguments and offers alternative solutions.  Chapter 14 recounts the arguments to demonstrate that both in Japan and Mexico, including the RSS in the constitution, doesn’t automatically renders it justiciable, and neither has it increased its judicial enforcement or welare betterment for the respective populations.  Chapter 15 briefly refers to better options to realize social rights other than justiciability.   In Part V, Chapter 16 closes this dissertation with a recapitulation and some brief conclusions that include the main findings, limitations, and lessons learned with this research. Some perspectives for future research are also suggested.  31  Chapter 2 From the welfare state to domestic social rights  This chapter will examine social rights with the purpose of understanding their transition from the liberal state to the welfare state. The origin of social rights, as opposed to civil and political rights, will also be explained due to the problematic interpretations they generate at the international and domestic levels. Finally, a recapitulation of the international documents comprising social rights will be made, along with an analysis of the problems that derive from the application in any given state of such legal dispositions. The previous background will allow a detailed analysis of the domestic regulation of social rights in Parts II and III.  2.1 The rise of the welfare state and of social rights    In Europe, at the turn of the XIXth Century, the liberal promise of interminable progress77 clashed with poverty, famine, inequality of living and disparity in working conditions.78 Up to the XIXth Century the responsibility regarding personal risks was of an individual nature, but with the industrial revolution workers and their families became unable to cope with such risks generated by industrialized labor.   Although the process induced by the industrial revolution would come to affect many countries to different extents (including Japan and Mexico), one of the first groups affected was England´s working class.79  Indeed, England was one of the first countries in which some interventions to alleviate those in need (e.g. the “Poor Law                                                                  77 See Sidney Pollard, The Idea of Progress: History and Society (London: Penguin Books, 1971). 78 See Edward Palmer Johnson, La formación de la clase obrera en Inglaterra (Madrid: Capitán Swing Libros, 2012) Preface. 79 Karl Polanyi, La Gran Transformación (Mexico City: Fondo de Cultura Económica, 2011). 32  of 1834”)80, and regulation of working conditions (e.g. the Factory and Workshop Act of 1878)81, were enacted.   A similar circumstance occurred in Otto von Bismarck´s Prussia. Bismarck was inspired by the postulates of Lorenz von Stein, a German scholar who claimed that in order to stop the revolutionary tendency of the lower worker class, it was necessary to improve the living standard of the poor.82 With such goal in mind, the following laws were enacted: a) Sickness Insurance Law of 1883,83 b) Accident Insurance Law of 1884,84 and c) Pensions and Disability Insurance Law of 1889.85 Such three laws promised to “socialize the risk” and create institutional mechanisms that might help workers facing “need” (e.g. unemployment benefits, widowhood, incapacity and old-age pensions and healthcare), and “unfortunate conditions” (e.g. work-related accidents).86  As will be discussed in the corresponding chapters, the social security model of Prussia followed suit by other countries from Europe, Latin America,87 and Asia.88                                                                  80 An Act for the Amendment and better Administration of the Laws relating to the Poor in England and Wales. Citation: 4 & 5 Will. 4 c. 76, Territorial extent: England and Wales. Dates: Royal assent: 14 August 1834. See also William P. Quigley, "Five Hundred Years of English Poor Laws, 1349–1834: Regulating the Working and Nonworking Poor" (1996) 30 Akron Law Review 73. 81 The Factory and Workshop Act 1878 (41 & 42 Vict. c. 16) consolidated the aforementioned Acts. See Beatrice Leigh Hutchins & Amy Harrison, A History of Factory Legislation (London: Scholar's Choice, 2015). 82 Wibawa Samodra, Learning from the Lorenz Von Stein’s Idea of Social State  (Munich: German University of Administrative Sciences, 2009). 83 Gesetzliche Krankenversicherung (GKV) Act on the Sickness Insurance Law, adopted in June 15, 1883. (RGBI.1993 P. X. Applicable for the German Empire). 84 Unfakkversicherrungsgesetz (UVG) Accident Insurance Act, adpoted in July 6, 1884 (RGBI. 1884. P. 69. Applicable for the German Empire). 85  Gesetz betreffend die Invaliditats -und Altersversicherung (IAVG) Invalidity and Old Age Insurance Act, adopted in January 1, 1889. (RGBI 1889. P. 97 Applicable for the German Empire). 86 Francisco José Contreras Peláez, Defensa del Estado social (Sevilla: Universidad de Sevilla, 1996) at 22. Nevertheless, the reality was that Bismarck Laws, usually prais ed as the foundation of the social security and social assistance systems, were actually an opportunistic gambit to disenfranchise the socialists and gain the trust of the working class. See Carlos Ochendo Claramut, El Estado de b ienestar. Objetivos, métodos y teorías explicativas (Barcelona: Ariel, 1999) at 28. 87 See for example Juan Fernando Silva Henao, “Evolución y Origen del Concepto de “Estado Social”” (2012) 7:14 Revista Ratio Juris 141. 88 See Marius B. Jansen, The Cambridge History of Japan (Cambridge: Cambridge University Press, 1989) Volume 5, 705. 33  After the Great Depression of the 1930s and the end of World War II, the popularity of social security and welfare increased steadily to the point that the welfare state was a concept acknowledged by most nations.89   Although there is a much larger discussion to be had regarding the differences and similarities between the liberal state and the welfare state, as well as regarding the multiplicity of definitions that such discussion generates, this dissertation will rely upon Esping-Andersen´s definition.90 Esping-Andersen defines the welfare state as “a State that acknowledges responsibility for securing some basic modicum of welfare for its citizens”.91 Janine Brodie explains, that the economic inequalities generated by unregulated market forces were deemed as being unjust, establishing a new critical distinction which, in turn, demanded redistribution of collective resources by society as a whole, and most obviously through the state. Such new distinction is essential to the welfare state and also “prescribed that all citizens could make claim to a measure of equality, social security, and collective provision as a right of citizenship, independent of their status in the market or their personal character”.92  Thus, this dissertation will postulate that, in the two countries herein compared, the welfare state was the required element for the development of social rights.    Indeed, unlike civil and political rights which have their origin in the liberal state, social rights came precisely as a response and are considered essential elements of the welfare state.93 One influential scholar which helped to propagate such notion was the British sociologist T.H. Marshall. According to Marshall, all citizens of a given                                                                  89 See May Hofman Öjermark, “De Bismarck a Beveridge Seguridad Social para Todos” (2009) 67:12 Revista Trabajo OIT  2. 90 Esping-Andersen´s definition is subject to various criticisms applicable and analyzed for the specific cases of Japan and Mexico which will be discussed in Chapters 6 and 10. 91  Gøsta Esping-Andersen, The Three Worlds of Welfare Capitalism  (Princeton: Princeton University Press, 1990) and Gøsta Esping-Andersen, “Hybrid or Unique? The Japanese Welfare State between Europe and America” (1997) 7:3 Journal of European Social Policy 179. 92 Janine Brodie, “Reforming Social Justice in Neoliberal Times” (2007) 1:2 Studies in Social Justice 93. 93 Ib id.  34  community are equal with respect to the rights and duties which their status endows. From among such rights, Marshall described three types:  a) The first type comprises civil rights, which protect individual freedom among a given society.  b) The second type comprises political rights, which protect the democratic rights of participation. c) The third type comprises social rights, which protect a minimum standard of welfare and income.94   In a similar reasoning and regarding the duty which social rights create for the state, Jackbeth Mapulanga specifies that the main objective of social rights is “to put a state under legal obligation to utilize the maximum amount possible of its available resources in order to redress social and economic imbalances and inequalities”.95 With the previous notions some common elements for social rights include:   a) A duty usually attributed to the state.  b) The objective of such duty is to overcome the unbalances in the quality of life generated by liberal markets. c) Such duty requires state expenditure financed by public taxes.   Therefore, and even though there is no formal or legal definition of social rights, this dissertation will use Frank Michelman’s definition which understands them as “rights                                                                  94 “The idea behind civil rights is to mitigate the impact of force and violence in relations between people, the idea behind political rights is to ensure that power is not confined to an elite, and the idea behind social rights is to provide minimum standards to correct market processes that lead to gross inequalities of distribution”. Thomas H. Marshall, Citizenship and Social Class, Class, Citizenship and Social Development (New York: Doubleday, 1964) at 71-73. 95 Jackbeth Mapulanga-Hulston, supra note 34. 35  to the meeting of basic needs that are essential to human welfare”.96 This definition was chosen as it does not tend to every need, but limits itself only to the needs considered as indispensable for living. In such fashion, this definition incorporates a safeguard against poverty, rather than the idea of providing a life in luxury and is grounded in more realistic expectations.97    2.2 Social rights in international law   In general terms, it can be argued that the notion of social rights originated first in international law and developed in such realm before being included in domestic legislation. As will be explained in the next subsection, the international origin of social rights is relevant to understand the specific problems regarding how such rights should be understood in their domestic jurisdictions. Pertaining social rights, it is important to consider that the most influential among such international documents was the draft of the United Nations Charter of 1945, in which various proposals to promote and protect employment and social welfare were made.98   Three years later, in the Universal Declaration of Human Rights (UDHR) ratified on December 16th, 1948, a comprehensive range of what would be later considered as civil, cultural, economic, political and social rights was enunciated. This was done in a single international human rights instrument without establishing any distinction between such rights.99 Social rights were not branded as a particular category that required a differentiated concept; all social rights were considered as human rights.                                                                    96 Frank I. Michelman, “On Protecting the Poor through the Fourteenth Amendment” (1969-1970) 83 Harvard Law Review 7. 97 Virginia Mantouvalou, “The Case for Social Rights” in Conor Gearty & Virginia Mantouvalou, Debating Social Rights (Oxford: Hart Publishing, 2010) at 157. 98  Leland Goodrich, Charter of the United Nations: commentary and documents (Boston: World Peace Foundation, 1946). 99 Office of the United Nations, High Commissioner for Human Rights, Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet No. 33 at 5, available at: 36  Nevertheless, the Cold War divided the new world order, and such division permeated the area of international law, and the concept of human rights itself. For social rights, there was a lack of accord in what should be understood as “the basic needs essential for human welfare”. Capitalists and communists had diametrically different views on such issue, and in order to accommodate both interpretations, human rights were split into two United Nations Covenants, which were adopted in 1961 and entered into force in 1966: the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR).”100   The split of covenants wasn’t a mere terminological difference. While in the UDHR all rights were granted equal status and the duties for each state were uniform, in the new covenants such obligations were not included in the same terms. Therefore, different standards of compliance and remedies were created between civil and political rights on one hand, and economic, social and cultural rights on the other.   Regarding wording, civil and political rights were drafted in an imperative manner: they could and should be immediately protected. Socio-economic rights, in contrast, appeared in a progressive manner: they required resources and could not be realized immediately by all states and neither in equal measure.101 Moreover, even if a country had enough resources, the standards of compliance themselves were based on non-specific concepts at best or indeterminate at worst.102   Although there is no consensus or official definition of what are social rights in international law, according to the ICESCR such rights comprise:                                                                    100 Ib id. at 4.  101 Ib id. at 5. 102 The contextual dependency will be further analyzed as one of the arguments against constitutionalizing social rights in Chapter 3. 37  a) The right to social security (Article 22). b) The right to work and correlated rights and freedoms (Article 23). c) The right to rest, leisure and enjoy paid vacation (Article 24). d) The right to a standard of living adequate for health and wellbeing which includes food, clothing, housing, medical care, the necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood beyond one´s individual control (Article 25). e) The right to education (Article 26).103  In sum, after being separated in the ICESCR, the notion that social rights were “different in kind,” and required “differences in implementation” 104 gained predominance. As if the international schism between CPR and ESCR was not problematic enough, there are still other layers of uncertainty in the incorporation of the ICESCR to domestic law that will now be explained.  2.3 Incorporating international social rights to domestic law  Although the aspiration of international law is to be applicable and binding by itself, some of its declarations, covenants, and pacts include the duty for each of the ratifying states to incorporate them into their national law.105 This duty is necessary to balance the respect for national sovereignty with the newly agreed international obligations. Another reason for this requirement is to adapt domestic law with new standards which are usually higher or more detailed.  In this regard, the Preamble of the UDHR states:                                                                  103 ICESCR (emphasis added). 104 Katharine Young, supra note 6, at 63. 105 Some examples of treaties and conventions with such mandate that will be analyzed in this dissertation include the ICESCR, CEDAW and GC19.  38   “…every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.”106  As a resolution from the General Assembly of the UN, the Declaration is usually only binding via customary law. Moreover, it does not explicitly impose a duty to create or adapt domestic legislation to international standards. However, the ICESCR is a treaty that creates legal obligations on all the states that ratify it, and explicitly orders in Article 2 that:  “1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”107   In this case, the duty of legislative incorporation is clear. Whereas the UDHR stated the general obligation of taking steps to progressively achieve the rights and freedoms recognized, the ICESCR makes a very specific statement on the adoption of legislative measures to do so. Nonetheless, in order to determine what type of legislative measures will be adopted in each state, it is necessary to know their domestic legal systems and the status they give to international law. Academically, such relationship is defined as either dualism or monism.108     Dualist states are those in which, neither the constitution nor any statute, grant special status to treaties. Accordingly, in such states, the treaties, along with their                                                                  106 UN General Assembly, Universal Declaration of Human Rights, 10 Decem ber 1948, 217 A (III), Preamble. 107 UN General Assembly, International Covenant on Economic, Social and Cultural Rights, (ICESCR) 16 December 1966, United Nations, Treaty Series, vol. 993, p. 3, available at: [accessed 8 June 2016] Article 2. 108 Anthony Aust, Modern Treaty Law and Practice (Cambridge: Cambridge University Press, 2007). 39  rights and duties, have no effect in domestic law (unless special legislation is promulgated). In contrast, Monist states are those in which a treaty may become part of domestic law once it has been concluded in accordance with the constitution, or other high ranking statute. Accordingly, in such states, the treaties, along with their rights and duties, may enter into force without requiring special legislation.109  Although it may be argued that in practice no state satisfies the dualist or monist categories in their purest form, there is usually a tendency towards one approach over the other. Therefore, the key distinguishing feature of monist legal systems, as defined, is that at least some treaties are incorporated into the domestic legal order without the need for any legislative act 110  (other than the act authorizing the executive to conclude the treaty).111  Having made the previous distinction, it is important to understand that although in theory the state as a whole is obligated by international treaties, in practice the incorporation of international law is done by different branches of government. Each of these branches, depending on their role, will usually give diverse interpretations to the obligations specified by the treaties creating conflicting and even contradictory results. In the countries herein analyzed, these branches can broadly be divided in:   a) The Legislative Branch (Diet/Congress), which recognizes the international treaties pertaining human rights and creates the respective amendments (on the constitution or national legislation depending on the case). In addition, this branch is                                                                  109 Ib id. at 187. 110 As will be further explained Japan is usually considered a monist country, however courts tend to recognize such status only to treaties which are clearly self-executing. As a result, some of the rights protected by these covenants and conventions are directly applicable but others are not. In the case of Mexico, it was clearly a dualist state until the New Human Rights Reforms of 2013 which specifically recognize the immediate validity of human rights treaties signed by the Executive as binding constitutional law. 111 David Sloss , Domestic Application of Treaties (Santa Clara: Santa Clara Law Digital Commons, 2011) at 5, available at: 40  in charge of establishing taxes and preparing the national budget (financing and spending), directly related to the economic sustainability of promoting, protecting and realizing ESCR.  b) The Executive Branch112 (Prime Minister and Ministers/President and Secretaries of State), which designs and executes public policies regarding ESCR, and at the same time coordinates the specific agencies regarding such rights (health, pensions, social security, education, etc.) in their respective provinces or municipalities. The executive branch should be staffed by specialists in their respective area and therefore may provide a more accurate perspective of the social rights in everyday practice.  c) The Judicial Branch, which provides remedies when laws establishing social rights are infringed. This branch is responsible for specifying the content of each right based on the actual cases and their context. Although in certain countries they can investigate the violation of rights and provide remedies by their own, in Japan and Mexico they require the claim of a private or public person to begin their process.  More importantly, such claim must be directly based on a specified right that pre-exists in domestic legislation or, in some rare cases, international law.113   d) National Human Rights Institutions (NHRI) are not one of the three classic branches of government, but still may provide important protection and defense for human rights. Domestically, NHRI may be known as ombudsmen, national human rights commissions, or human rights agencies and are usually third parties, independent of both government and private interests. Depending on each state, NHRI can protect and promote ESCR in a variety of ways, such as handling                                                                  112 In both Japan and Mexico, the executive branch is especially powerful. This characteristic will be explained in Parts II and III. 113 The requirement of an actual case to decide as a requisite for justiciability will be explored in Chapter 14. 41  complaints in cases of violations, undertaking investigations, monitoring implementation of relevant international human rights treaties, advising the government on the domestic application of international treaties, recommending policy changes, and providing training and public education.114  Since the aforementioned branches and the NHRI have different roles, each of them provides different interpretations of social rights. Regarding the judiciary for example, it is essential to note that international human rights institutions acquire jurisdiction only once domestic remedies have been exhausted. This particular requirement is known as “jurisdictional subsidiarity”.115 The reason for this subsidiarity is the respect for the sovereignty of each state and that, in principle, each state may solve its internal conflicts in accordance with the signed treaty. According to the foregoing, domestic judicial interpretations tend to be preferred, giving a secondary status to social rights based in international law.  2.4 The problem with social rights  As has been explained, in their origin ESCR were simply human rights,116 but after the separation of rights in the ICCPR and the ICESCR, a distinction without a clear definition arose. In practice, since ESCR are expressed differently from one international instrument to the other and from one constitution to the next, a clear definition of such rights does not exist.   If this line of reasoning is followed, it is clear that for this type of rights, the state cannot fulfill its duty by mere abstention. In such regard, those authors against ESCR                                                                  114 United Nations Human Rights Office of the High Commissioner, Key concepts on ESCRs - Are economic, social and cultural rights fundamentally different from civil and political rights? , available at: 115 Samantha Besson, “Human Rights and Constitutional Law: Patterns of Mutual Validation and Legitimation” in Rowan Cruft, Matthew Liao & Massimo Renzo, Philosophical Foundations of Human Rights (Oxford: Oxford Scholarship Online, June 2015) at 292. 116 Virginia Mantouvalou, supra note 97. 42  consider that the “positive” conduct required by the state, contrasts with its “negative” or “passive” role in regards to “classical rights”. According to this perspective:    “A positive right is a claim to something…while a negative right is a right that something not be done to one, that some particular imposition be withheld. Positive rights are inevitably asserted to scarce goods, and consequently scarcity implies a limit to the claim.”117  Some scholars have expressed the advantages of the inclusion of ESCR in domestic constitutions. Other scholars, however, have a fundamental objection to this inclusion. This objection stems from the understanding of ESCR as positive rights.  Indeed, from this understanding of ESCR, a series of arguments have been advanced against positive rights in what is generally known as “The Problem with Social Rights”. Such arguments are that ESCR:  a) Are vague and inappropriate for judicial enforcement. b) Require positive action and significant expenditure for their enjoyment. c) Are “secondary” both in history and relevance to civil and political rights. 118   However, on recent times the High Commissioner’s Office (as part of the United Nations Human Rights Office (OHCHR)), has countered these arguments stating that:   a) While not all ESCR are defined clearly in all human rights treaties, neither are the civil and political rights. b) Although many ESCR sometimes require high levels of investment —both financial and human— to ensure their full enjoyment, civil and political rights, also require investment for their full realization.                                                                  117 Charles Fried, Right and Wrong (Cambridge: Harvard University Press, 1978) at 110. 118 Maurice Cranston, “Human Rights, Real and Supposed” in David D. Raphael (ed.), Political Theory and the Rights of Man (London: Macmillan, 1967) at 51. 43  c) In practice, the enjoyment of all human rights is interlinked. For example, it is often harder for individuals who cannot read or write to find work, to take part in political activities, or to exercise their freedom of expression. Similarly, famines are less likely to occur when individuals are able to exercise political rights, such as the right to vote.119  Although the OHCHR has formulated an apparently conclusive rejection of the division between civil, political and social rights, and even though such rejection has already been established as definitive by the Vienna Declaration,120 the detractors of social rights consider that such type of rights have not managed to solve the problem of resource scarcity satisfactorily. In such regard, they assert that positive rights are necessarily dependent on resources, whilst negative rights are not.121 In his book about such matter, Charles Fried stated that: “Positive rights are inevitably asserted to scarce goods, and consequently scarcity implies a limit to the claim.”122   The conceptualization and enforcement of ESCR as positive rights is nowadays not so much a problem for international, but rather for domestic law. In this regard: “The disparity in the protection of social rights at an international level has been mirrored at a domestic level most of the times. Even if social rights are featured in a legally enforceable document of higher status than ordinary legislation, such rights seem to bear a somewhat secondary role in civil and political rights.” 123  Althought this phenomenon varies across jurisdictions, it will be demonstrated that in the two countries herein compared, the legislative branch considers social rights as of                                                                  119 United Nations Human Rights Office of the High Commissioner: Key concepts on ESCRs - Are economic, social and cultural rights fundamentally different from civil and political rights?, available at: 120 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights on 25 June 1993 in Vienna, UN doc. A/CONF.157/23. 121 Octavio Luiz Motta Ferraz, “Harming the Poor Throught Social Rights Litigation: Lessons from Brazil” (2011) 89:1 Texas Law Review 1643. 122 Charles Fried, supra note 117, at 110.  123 Virginia Mantouvalou, supra note 97, at 6. 44  secondary status to domestic law, and the judiciary’s examination of such rights is also limited by such secondary status when interpreting them.  Due to the foregoing, and although it should have been solved definitively by the aforementioned Vienna Declaration, this distinction is relevant in the cases of Japan and Mexico. To this day, in both countries, both academia and the judiciary are still strongly influenced by the discussion of positive and negative rights. Such influence can be seen in the judicial reasoning of the cases to be analyzed in Chapters 9 and 13.  This chapter explained the origin of the welfare state as a concept that would gain importance and a particular connotation after World War II. From such context, social rights emerged and were developed first in international law and then incorporated in the domestic legislation of various countries. Two main problems regarding social rights were highlighted: 1) the secondary status of international social rights´ when compared to domestic law, and 2) their alleged nature as positive and costly rights. Even though the OHCHR and the Vienna Declaration have denied that such issues constitute a problem, it was posited that they remain so within the realm of domestic law.  45  Chapter 3 General considerations regarding social rights contitutionalization  This chapter will provide different ways in which social rights have been included by the states in their domestic constitutions. Moreover, arguments both in favor and against the constitutionalization of social rights will be advanced. Such arguments contain the basis for the discussions that will be herein analyzed for the specific cases of Japan and Mexico in Parts II and III.   3.1 Possible ways of constitutionalizing social rights  Neither the Preamble of the UDHR, nor Article 2 of the ICESCR, establish a specific mandate to include social rights in the domestic constitutions of state members. Nonetheless, due to the alleged problem of social rights as positive rights, and the distortions that ESCR suffer in domestic practice, some scholars believe that having such rights in the constitution might give them more certainty and relevance. There can be several ways in which constitutional rights relate with the courts, the government, and society at large. The previous relationships will be described based on the classification proposed by Mark Tushnet in his text “Weak Courts, Strong Rights”.124  3.1.1 Non-justiciable or (merely) declaratory rights  A constitution can enumerate social rights, but exempt them from judicial enforcement. These types of constitutionalized rights are known as “non-justiciable rights”. Non-justiciable rights may also be known as “directive principles”, and can                                                                  124 Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2009) at 227-247. 46  be used to interpret ambiguous statutes. In addition, non-justiciable rights can be invoked to explain the courts´ refusal to recognize other rights, in the cases where such recognition would impair the government's ability to implement costly or untenable rights.125    3.1.2 Weak substantive rights  Unlike non-justiciable rights, weak substantive rights can be judicially enforced but leave ample discretion to the judiciary or executive branches regarding compliance. Not only can such rights be judicially acknowledged, but usually when they do, they point towards the responsible authority, and give it a general warning to attend the issue as it sees fit. In this way, the judiciary does not violate the separation of powers (at least not ostensibly), but neither does it remain idle.  Constitutions can recognize weak substantive rights that are judicially enforceable, but that give legislatures an extremely broad range of discretion regarding their fulfillment. In a similar fashion, weak substantive rights may be stated in order to oblige courts’ deference to legislative judgments. Finally, weak substantive rights may also be used by the executive as directives for implementing welfare policies.   3.1.3 Strong substantive rights  Social welfare rights can also be considered as strong, in the sense that courts will enforce them fully and without giving substantial deference to the legislative branch.                                                                  125 An example of non-justiciable rights and directive principles can be found in the Irish Constitution. In the part headed "Directive Principles of Social Policy in its opening paragraph includes the following: "The principles of social policy set forth in this Article are intended for the general guidance of the [Parliament]. The application of those principles...shall not be cognizable by any Court under any of the provisions of this Constitution." See Fiounnuala Ni Aolain & Grainne McKeever, “Thinking Globally, Acting Locally. Enforcing Socio -Economic Rights in Northern Ireland” (2004) 2:2 European Human Rights Law Review 158. 47  This is the most controversial type of social rights constitutionalization since many scholars argue that it violates the principle of separation of powers by imposing its own criteria.126 Not only has this type of rights been rarely (or at all) enforced, it is essentially unenforceable in civil law countries in which every judgment must be based on constitutional or secondary provisions and as such remains limited by the constraints of legislation, instead of having ample interpretive powers as in common law countries. Since Japan and Mexico are both civil law tradition countries, this dissertation will not elaborate further on this matter.  After having referred to the three main possible ways in which social rights might be included in a constitution, in the next sections the arguments for and against doing so will be compared.  3.2 Arguments for constitutionalizing social rights  This section will present three arguments in favor of including social rights in the constitution.    3.2.1 The entitlement argument  According to this argument, by being able to demand, rather than beg, and being considered right-holders rather than panhandlers, entitlement gives marginalized groups better chances of social progress.127 Although this argument can be seen as one regarding the recognition of a right, it has been used by the constitutionalization advocates under the premise that it distinguishes the rights discourse from charity, benevolence, or self-interest,128 and by doing so limits the government’s agenda that                                                                  126 Ib id. at 245-246. 127 Cecile Fabre, supra note 5, at 24. 128 Katharine Young, supra note 6, at 15. 48  may negatively impact the right to be claimed. The reason for this limitation is that in their origin, such rights are a property of the citizen which the government must respect.   In opposition, the defendants for such notion argue that should no entitlement exist, the government’s agenda may provide the guidelines by which the right will be fulfilled, and even decide if such right will be fulfilled at all. In this second scenario, the government´s handling of social rights would be closer to charity than to entitlement and therefore impede any mandate of compliance. The lack of a constitutional right thus would allow for a less strict protection of social rights.    3.2.2 The aspirational constitutionalism argument  Some authors consider the constitution not just as a catalog of the rights and duties of the here and now, but also as a document that contains the coordinates and aspirations for a better future as a nation. An aspirational constitutionalism thus implies that “a constitution should be a tool to guide towards the utopia or ideal sought to be reached.”129 Being the most important legal instrument, the constitution has an intrinsic appeal of enabling a country´s social transformation.130 As can be seen, this argument underlies the three hypotheses to be evaluated in Japan and Mexico since it relates to the transformative power of constitutional rights and courts.   The aspirational argument considers that even should the first results of constitutional inclusion be moderate, an environment of respect towards the included                                                                  129 Ib id. 130 See the case of South Africa analyzed by Charles Fombad, “An Overview of the Const itutional Framework of the Right to Social Security: With Special Reference to South Africa” (2013) 21:1 African journal of International and Comparative Law 1. 49  rights will eventually rise, usually first within civil society and then upwards to the state itself.131 In this regard, the incorporation of certain ambitious constitutional clauses might be an investment on the future, and when the conditions that block the practical implementation of a right change, it would be easier for constitutionalized rights to be lobbied and enforced compared to statutory rights due to its entrenched and superior status. Thus, both judges and social movements can use the aspirational constitution as a blueprint for the expansion of social rights.132  In this same line of thought the constitutionalization of social rights can help to identify groups of the civil society with similar interests, broadening their base, and providing clearer demands to protest against the state. Moreover, having a clear and institutionalized interest can also help to establish bonds with intergovernmental organizations, NPOs, Think-Tanks and Foundations which promote, protect and defend social rights.133 The reason for this is that constitutional rights are easier to identify both locally and internationally due to their status as supreme law of the country.   3.2.3 The constitutionalization favors litigation argument  In her study of social rights in developing countries, Siri Gloppen134  refers to social rights litigation. She argues that the most important factor affecting a court's transformative potential is whether social rights are rendered directly justiciable by a given constitution. As can be seen this argument underlies the three hypotheses                                                                  131 The notion of constitutional inclusion generating progressive results is called incrementalism. See Jeff King, Judging Social Rights (London: Cambridge Studies in Constitutional Law, 2012) at 289. 132 Ilias Trispiotis, “Socio-economic Rights: Legally Enforceable or Just Aspirational? (2010) 182:8 Opticon 1. 133 German López Daza, “Constitutionalisation and Judicial Protection of Social Rights - An Approach to the Latin American Case” (2014) 8:12 International Journal of Social, Behavioral, Educational, Economic, Business and Industrial Engineering  4019. 134 Siri Gloppen, “Social Rights Litigation, Social Rights and Social Policy” in Anis Ahmad Dani & Arjan de Haan (eds.), Inclusive States: Social Policy and Structural Inequalities (Washington: The World Bank, 2008) at 345. 50  to be evaluated in Japan and Mexico since it relates to the transformative power of constitutional rights and courts.   Gloppen´s hypothesis was tested by Robert Sajó in selected Eastern European countries, and by Roberto Gargarella in selected Latin American countries. 135 Gloppen´s theoretical framework applied to Sajó´s and Gargarella´s cases seem to indicate that in the countries of analysis, courts with the best track records for enforcing ESCRs are those invoking constitutional provisions that allow specific (as opposed to abstract) entitlement to social rights, and on the basis of entrenched rights (as opposed to directives to state policies).136 Gloppen´s argument has been widely endorsed by scholars who defend the specific form of strong rights constitutionalization of social rights, including those whose hypotheses will be evaluated for the cases in Japan and Mexico since it relates to the transformative power of constitutional rights and courts. .137   From the perspective of public interest litigation 138  for example, “the aim is to transform the situation not only for the litigants but also for all those similarly situated”.139 Litigation in such way becomes a tool for transforming rights from theory to practice, and from the plaintiff to a wider social group. Thus, this argument underlies the welfare hypothesis.                                                                   135 See Andras Sajó and Roberto Gargarella in Ib id.  136 Ib id. Gloppen identifies four components that determine the success or failure of social rights litigation: voice (the ability of the marginalized groups to voice their claims), responsiveness (the willingness of courts to respond to their concerns), capability (the ability of judges to give legal effect to social and other rights in meaningful ways) and compliance (the extent to which these judgments are politically authoritative). 137 See Francico José Contreras Pelaéz, supra note 86, at 22. 138 Public interest litigation is understood as the use of litigation, or legal action, which seeks to advance the cause of minority or disadvantaged groups or individuals, or which raises issues of broad public concern. See The PILS Project, “About Public Interest Litigation”, available at: 139 See Siri Gloppen, supra note 134, at 344. 51  Another line of reasoning explores how judgment of social rights litigation can be used to formulate and reformulate public policy. This can be done directly (via remedies, supervision and sanctions for non-compliance), or indirectly (by stimulating social activism and mobilization, fomenting advocacy, bringing social rights to the public media, and creating a unified discourse). Constitutionalized rights enforcement can thus provide an alternative for adequating public policy with current needs of a given society.140   3.3 Arguments against constitutionalization of social rights  This section will present two arguments against the inclusion of social rights in the constitution.   3.3.1 The vagueness and specificity arguments  The vagueness argument refers to the imprecise phrasing of social rights which provides uncertainty for the interpretation or enforcement of such rights.141 Even though a constitutional provision should be general in order for it to be applicable extensively, if it is too vague there is a high risk of indeterminacy and thus, of the uncertainty of effects and contents.   Vagueness would, a) render a provision inapplicable in practice, b) allow conservative groups and governments to articulate regressive aims and policies and, c) allow any government to claim to satisfy social rights due to their uncertain standards of compliance. Furthermore, Michelman denounces that, d) the social                                                                  140  Siri Gloppen, “Public Interest Litigation, Social Rights and Social Policy” (Arusha Conference Paper, December 12-15, 2005) at 25. 141 Cecile Fabre, supra note 5, at 154-168. 52  rights tendency towards abstraction may remove the focus of litigation from the concrete experiences of deprivation that belong at its center.142   On the opposite side lies the specificity argument. According to such argument, it is inadvisable to constitutionalize social rights because their phrasing may be too specific. Herman Schwartz states that “particularistic provisions tend to be outdated very quickly and become a hindrance, requiring constant amendment. These amendments, in turn, are often very technical and incomprehensible to most”.143 Thus, the inclusion of too many details, references, and technical provisions render a constitution as useless as vague social rights provisions do.  3.3.2 The populism argument  The populism argument explains that regarding social inequality, the constitution may be used to distort and hide precisely such inequality.144 This is achieved by emphasizing the constitutional norms that suppress conflicts, and dismissing those that address them. In such reasoning, the ruling power may even incorporate formal constitutional remedies in order to demobilize citizen protests or cover the inactivity of public agencies by emphasizing the enactment of constitutional rights without actually respecting them.145  A very good analysis of the aforementioned phenomenon can be found in Peter Gabel´ s 146  work. Gabel explains that in many developing countries rights are typically articulated in abstract and indeterminate terms, precisely so that they may                                                                  142 Frank I. Michelman, supra note 96, at 7-8, 13-14 and 33-39. 143 Herman Schwartz, “Economic and Social Rights” (1993) 8:2 American University International Law 551. 144  Gerardo Pisarello, “Los Derechos Sociales en el Constitucionalismo Democrático” (1988) 92 Boletín Mexicano de Derecho Comparado 440. 145 Ib id.  146 Peter Gabel, supra note 21, at 156. 53  simultaneously embody the goals of social transformation and deny the means for their achievement. As such, “rights-discourse is easily strategically employed by agents of the status-quo in order first to co-opt and ultimately to deflate and defeat the demands of those intent on its transformation”.147  Gabel states:   “[w]hen state officials subsequently begin to recognize the movement's specific demands in the form of rights-victories, they do so with the hope that the movement will “trick itself into equating these victories with its own internal ends”. Thereafter, agents of the status quo use legal processes of rights-interpretation so as over time to reconcile the movement's demands with the status quo and to “distinguish these victories from their true social origins in the intent of the movement.”148  In such cases, the governmental agencies involved, consider that the demands made by social activists were met by enacting amendments, and fails to acknowledge their responsibility for enforcing them. The rights discourse is therefore just an illusion that helps the authorities to present an appearance of progressivism.   In this chapter, a distinction was made between declaratory rights, weak substantive rights, and strong substantive rights in order to provide a classification of how social rights have been constitutionalized in various countries. Arguments both for and against the constitutionalization of social rights as means of adoption were explained, in order to posit the possible answers to one of this dissertation’s main questions: Not all countries include the right to social security as part of their constitutional text, but should they?                                                                    147 Marius Pieterse, “Eating Socioeconomic Rights: The Usefulness of Rights Talk in Alleviating Social Hardship Revisited” (2007) 29:3 Human Rights Quarterly 796. 148 Peter Gabel, supra note 21, at 159. 54  Chapter 4 General considerations regarding social rights justiciability  This chapter aims to provide a more detailed analysis and discussion about justiciability pertaining its particular relation to ESCR. This deeper examination is necessary before presenting the arguments for and against justiciability of such rights. The previous discussions and arguments will be building blocks when evaluating the second hypothesis of this dissertation (justiciability hypothesis), and as such are essential for the comparison of the RSS to be performed in Parts II and III of this dissertation.  4.1 Justiciability pertaining ESCR  Up to this point a working definition of justiciability, and a more nuanced one based on Peter Gordon Ingram´s insight have been referred to for practical purposes. Nevertheless, justiciability, as a concept, with specific regard to ESCR, has some particularities and a very transcendental role that deserves further scrutiny and discussion.   In its recent article regarding justiciability of ESCR, Avitus Agbor acknowledges a plurality of meanings for the concept of justiciability. Agbor admits that the concept of justiciability, as such, includes, but is not limited to: a) The legal concept of standing (or locus standi), which is used to determine whether the party bringing a suit is an appropriate party to establish whether an actual adversarial issue exists. b) The determination of whether a court possesses the ability to provide adequate resolution of a dispute invoked by such party, c) The resolution in certain cases that 55  either a matter is not subject to the court´s scrutiny or that such court can not offer a final determination on it.149  Nevertheless, instead of choosing between the aforecited plurality of meanings, Agbor, builds upon his colleague Takele Soboka Bulto´s succint definition of justiciability: “denoting the suitability of a case for judicial scrutiny” 150  and complements it with Agbor´s own three fundamental pillars for making ESCR justiciable. Such pillars are: the claim, the setting and the consequence.  The first pillar in achieving justiciability of socioeconomic rights is the claim: this refers to the substantive content of the right that is violated which must be supported by a particular legal regime. To fulfill this duty, each country must enact legislation that sets out the rights, the normative and directive principles in the interpretation of these rights, the appropriate judicial and quasi-judicial bodies to adjudicate violations, and the consequences of such claims, that is, the remedies available to victims. Justiciability according to this first pillar thus requires that the ICESCR is domesticated through the enactment of domestic legislation.   The projected outcome of the previous process is that the rights contained in the ICESCR become in practice a piece of domestic law. As such, its implementation and enforcement becomes much easier. In this regard, if ESCR become justiciable, they also generate effective implementation and enforcement in day to day practice. Moreover, according to Agbor, by doing all these, the state builds its own institutional and normative framework, makes these rights accessible, resolves legal issues that relate to ESCR, and further infuses these rights into the socio-legal and political contexts of the country.                                                                  149 Avitus Agbor, “Shifting the Matrix from Legal Passivity to a New Domestic Legal Order: Towards the Justiciability of Economic, Social and Cultural Rights in Cameroon ” (2017) 25:2 African Journal of International and Comparative Law 176 . 150 Takele Soboka Bulto, “The Utility of Cross -Cutting Rights in Enhancing Justiciability of Socio-Economic Rights in the African Charter on Human and Peoples' Rights” (2010) 29:2 University of Tasmania Law Review 143. 56   The second pillar in achieving justiciability of socioeconomic rights is the setting (or forum): this refers to the judicial body that is mandated to hear and review violations of the rights that are protected. Through justiciability, domestic courts would be accorded the opportunity to interpret what are ESCR. This means that courts would be the forum where the substantive content, nature and limits of ESCR should be determined. The judiciary should step in as an independent arbiter that gives effect to these laws on ESCR. In so doing, the judiciary develops a normative framework, interprets, in the light of international law, the nature of ESCR as well as their limitations and the nature of the state's obligations according to domestic legislation. Finally, the domestic judiciary also determines what remedies are suitable, effective and applicable with regard to violations that have occurred.   According to Agbor, judicial interpretation of ESCR will also ideally enable a culture of accountability. This means that individuals would know that, like civil and political rights, ESCR, when violated, can be subjected to judicial scrutiny, and when found in violation, an applicable remedy will be imposed. Any legal system that recognises ESCR must have in place justiciable mechanisms with a protective mandate: the power to enforce the law by assessing and adjudicating on claims of violations.151   In this fashion, Frans Viljoen has observed pertaining the link between justiciability and accountability that: “[u]sed effectively, justiciable socio-economic rights may go as far as to expose the distortion in a state's financial (budgetary) priorities. Its application may be most incisive where a state does not allocate its available resources to realise socio-economic rights.”152 Martin Scheinin has added: “Through justiciability, the state becomes subject to the disclosure of its policies, priorities,                                                                  151 Avitus Agbor, supra note 149, at 196. 152 Frans Viljoen, International Human Rights Law in Africa (Oxford: Oxford University Press, 2007) at 570. 57  decisions and budgetary and other resource allocations to an impartial and independent judiciary for scrutiny.” 153  And most decisively Margit Tveinen has concluded that: “Undoubtedly, with an impartial and independent judiciary, justiciability of ESCR becomes an effective tool in ensuring and achieving state transparency and accountability.”154  The third and last pillar in achieving justiciability of socioeconomic rights is the consequence: this refers, when finding that a violation has taken place, to the remedies available to such victims. Such remedies may include reparations, guarantees of non-repetition or a request to the state to take steps, over time, towards realising the rights. 155  But in addition to its protective mandate, the consequence of justiciability regarding the judiciary also includes a promotional role: by interpreting publicly the nature and content of ESCR and situating them within a normative framework of universality, interdependence, indivisibility and interrelatedness, an awareness of ESCR will be promoted. Justiciability thus becomes a conditio sine qua non for the enforcement of ESCR at the domestic level.   According to Agbor (and the scholars promoting the three hypotheses scrutinized in this dissertation):  “Through justiciability, enforcement and implementation will increase. As courts are able to interpret and publish their judgments on ESCR, this means that complaints of violations will be taken to the courts. The mere fact that complaints can be taken to the courts will mean that the government will be committed to ensuring that more effective measures are put in place towards the recognition and respect of ESCR”156.                                                                  153 Martin Scheinin, “Econonic, Social and Cultural Rights”, in Asbjorn Eide, Catarina Krause , and Allan Rosas (eds.), Economic, Social and Cultural Rights: A Textbook (Kluwer Law International, 2001) at 17. 154 Margit Tveiten, “Justiciability of Socio-Economic Rights: Reflections on Norwegian and South African Debate and Experience” in Wenche Barth Eide and Uwe Kracht (eds.), Food and Human Rights in Development-Volume I: Legal and Institutional Dimensions and Selected Topics (Cambridge: Intersentia, 2005) at 164. 155 Ib id. at 196. 156 Avitus Agbor, supra note 149, at 194. 58    However, Agbor also admits that for such effect to occur it is required “an independent, competent and impartial judiciary, a culture of the rule of law where everyone is equal to the law and accountability trumps impunity, and a culture of political responsibility.”157  In sum, the reasoning behind justiciability of ESCR as a tool for courts to enable social transformation considers that:  “in addition to achieving more transparency and accountability from the state on how it defines policies and priorities in the utilisation of its resources, justiciability of economic and social rights could become an effective weapon in reclaiming social and economic justice and equality for people who are marginalised or secluded from infrastructural development and service delivery as well as those who are impoverished. Through justiciability, these people will be able to speak out, state their grievances, detail the nature of their challenges and articulate their opposition to the systemic seclusions to which they have been subjected.”158  The previous reasoning will be further scrutinized in the next sections by laying out other arguments for the justiciability of social rights, contrasting them with arguments against the justiciability of social rights, and trying to advance a synthesis and conclusion for both.   4.2 Arguments for the justiciability of social rights  Along the lines of “three pillars of justiciability” advanced by Agbor, a number of scholars (including those aforecited at the beginning of this dissertation and whose hypotheses will be evaluated), argue that claiming a right via the courts is as effective, if not more so, as non-judicial alternatives. In order to fully comprehend their logic,                                                                  157 Ib id. 158 Ib id. 59  in this section, three main arguments for the justiciability of social rights will be analyzed.  4.2.1 Justiciability is unaffected by political interests   Social policy generated by the political process may, and usually does, affect the individual´ s rights. Therefore, in order to protect individual rights from potential violations arising from such processes an independent power is needed. Among the three branches of power, the judiciary is usually thought to be the best candidate to guarantee such protection because of its independence.159   The reasoning for the judiciary´s alleged position to make judgments independently of political considerations resides in the fact that it is not a popularly elected organ. According to Ronald Dworkin, “legislators are subject to pressures that judges are not, and this must count as a reason for supposing that … judges are more likely to reach sound conclusions about rights”.160 As such, the judiciary is less susceptible to the pressures of a majority of voters when reaching decisions and rendering judgments, and due to this is more likely to protect individual rights despite the will of the majority.161   Michael Walzer points out that the judicial enforcement of social rights radically reduces the reach of “democratic” decision making.162 But due to their distributive nature, social rights must precisely be left out of the scope of political deliberation in                                                                  159 It is important to note that this traditional division of tasks between the political branches  and the judiciary is not a necessary feature of a democratic system, but rather a matter of institutional design. As it happens, most western democracies have developed into a constitutional model where courts are entrusted with the protection of rights. See Vojciech Sadursky, “Judicial Review and the Protection of Constitutional Rights” (2002) 22:2 Oxford Journal of Legal Studies 275. 160 Ronald Dworkin, A Matter of Principle (Cambridge: Harvard University Press 1985) at 70. 161 Kim Lane Scheppele, "A Realpolitik Defense of Social Rights" (2004) 82:7 University of Texas Law Review 51. 162 Michael Walzer, “Philosophy and Democracy” (1981) 9:3 Political Theory 391, at 391-392. 60  order to avoid some outcomes that might be morally unacceptable.163 So, once health, education, food, etc. are recognized as protected rights, political decisions regarding those issues (including resource issues) will be necessarily limited.164  Thus, if the state has a duty to promote and protect social rights, then the judiciary has the power to act whenever that duty is disrespected. In Dworkin´s terms, such is a matter of principle, despite the issues regarding resources, taxation and the will of the majority that may be involved.165 To put it in simpler words, courts can protect social rights even against the will of the majorities, since their role is determined by a criterion of justice instead of one of democracy.    4.2.2 Justiciability favors democracy   Notwithstanding the last argument, courts do not necessarily have to work against democracy. Based heavily on John Rawls´ theory of justice as fairness,166 some authors consider that effective protection of social rights is actually necessary to have a substantive democracy, and thus fairer conditions for political participation. The reasoning of this argument is that an informed participation in a democracy requires achieving the “social minimum” guaranteed by social rights. In this fashion, there can only be equal participation if all citizens have at least an equal minimum level of livelihood167.168                                                                   163 This argument is similar to that described regarding constitutionalization in Chapter 3.3.3. 164 Octavio Motta Ferraz, An Insurance Model for the Justiciab ility of Social and Economic Rights (London: PhD dissertation, University College London, 2006) at 91. 165 Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 297. 166 John Rawls, Justice as Fairness: A Restatement (Cambridge: Harvard University Press, 2001). 167 Ib id. at 95-96. 168As stated in Chapter 2, the OHCHR follows a similar discursive line by arguing that “the enjoyment of all human rights is interlinked…it is often harder for individuals who cannot read and write to find work, to take part in political activity or to exercise their freedom of expression. Similarly, famines are less likely to occur where individuals can exercise political rights, such as the right to vote. United Nations Human Rights Office of the High Commissioner: Key concepts on ESCRs - Are economic, social and cultural rights fundamentally different from civil and political rights?, available at: 61   Constitutionalized social rights could also strengthen the legitimacy of a democratic state for other two reasons:  a) Legal changes are not only implemented by the legislative branch. “The courts may play a positive role in providing a forum where the disadvantaged and the marginalized in representative politics can have their voices heard, thereby fostering democratic participation.”169 In this manner, judicial resolutions may generate legal changes for people who are not adequately considered by designated representatives.  b) As seen in the argument of weak substantive rights, not all judicial resolutions regarding social rights require the intervention of the legislative branch. “Judicial enforcement of social rights has the potential for promoting democratic deliberation without displacing the decision-making function of the political branches of the government.”170 Thus, in the case of weak substantive rights, the separation of powers principle can be maintained and participation on legal changes can be achieved without legislative reforms.  4.2.3 Justiciability reduces inequality   In the debate about the desirability of judicial review, it is sometimes said that courts are better at moral reasoning than legislatures, and that this is one of the reasons they should be entrusted with final authority over certain essential moral issues pertaining both individual and minority rights.171 According to this reasoning, Dworkin                                                                  169 Scott Sheeran & Sir Nigel Rodley (eds.), Routledge Handbook of International Human Rights Law (London: Routledge Publishiing, 2013) at 552. 170 Siri Gloppen, “Dialogic Justice in the Enforcement of Social Rights” in Siri Gloppen & Alicia Ely Yamin, Litigating Health Rights (Cambridge: Harvard University Press, 2011) at 238. 171 See Jeremy Waldron, “The Core of the Case against Judicial Review” (2006) 115 Yale Law Journal 1346. 62  has argued that courts “insure that the most fundamental issues of political morality will be finally set out and debated as issues of principle and not political power alone.”172  As has been previously discussed, Siri Gloppen goes one step beyond and argues that courts may enable social transformation, particularly in developing and poor countries. Gloppen argues that courts have a privileged position to provide a "transformative performance” since they analyze and decide in a case to case basis, and as such, are more connected to the particular circumstances and problems of the population when compared to the other branches of power. As can be seen, this argument is in line with the third hypothesis that states that when both the constitutionalization and the justiciability suppositions are met, a general improvement in welfare will ensue.  4.3 Arguments against the justiciability of social rights  Contrasting with the majority of scholars who favor making social rights justiciable, there is another group who argues the contrary. In this section, their arguments against social rights´ justiciability will be analyzed.   4.3.1 Justiciability is not based on an independent power  A reason against social rights justiciability is that it presupposes the independence of the judiciary. Although there is not a unanimous definition of judicial independence, it is believed that at its minimum it must be considered as “freedom from absolute control by other government institutions…{and} some degree of freedom from                                                                  172 Ronald Dworkin, supra note 165, at 70. 63  control by litigants and public opinion... requiring judges' ability to render decisions in cases without fear of retribution.”173 174   Steven Voigt identified that in some countries the government may intentionally avoid confrontations with the judiciary since maintaining a façade of independence might be beneficial for their interests. According to Voigt, an independent judiciary increases the credibility of a government since “judicial independence is correlated with economic growth”.175   On a similar token, Georg Vanberg argues that “establishing and maintaining judicial independence requires that political actors with the ability to attack or undermine judicial autonomy do not find it in their interest to do so.”176 The question then becomes; why could it be in the political actors´ interests to respect judicial independence? The answers are manifold: to gain credibility, to have a mediator among other power holders, to have an institutional power confirm their property rights, to deviate attention from informal enforcement of power, etc.   The aforementioned phenomena are most acute in populist regimes that intend to use “independent” judiciaries to enhance legitimacy and ensure bureaucrats´ compliance. Nonetheless, the use of unofficial punishments for judges that step too                                                                  173  Frank B. Cross, “Judicial Independence” and Georg Vanberg, “Establishing and Maintaining Judicial Independence” both in Gregory A. Caldeira, Daniel Kelemen & Keith E. Whittington, The Oxford Handbook of Law and Politics (Oxford: Oxford University Press, 2008).  174 Moreover, other line of inquiry posed by the critical legal realists argues that the members of the judiciary have biases and pressures that usually affect their neutrality. See Duncan Kennedy “Strategizing Strategic Behavior in Legal Interpretation” (1996) 4 Utah Law Review 785; Duncan Kennedy, A critique of Adjudication (Cambridge: Harvard University Press, 1997); and Duncan Kennedy, “The critique of rights in critical lega l studies” in Wendy Brown & Janet Halle, Left legalism/Left Critique (North Carolina: Duke University Press, 2002) at 178-227. See also Roberto Mangabeira Unger “The Critical Legal Studies Movement” (1983) 93 Harvard Law Review 561.  175 Steven Voigt Feld, “Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators” (2003) 19 European Journal of Political Economy 497, at 516. 176 Georg Vanberg, supra note 173, at 116. 64  far from the status quo is also used in democratic countries. Among the disciplinary and restraining measures that can be used against the judiciary, it is possible to find:   Political tinkering with judicial appointment and tenure procedures to ensure the appointment of compliant judges and/or to block the appointment of undesirable judges; court-packing attempts by those who hold political power; disciplinary sanctions against ‘overly independent’ judges; impeachment or removal of objectionable or over-active judges; or the introduction of serious jurisdictional restrictions that limit the boundaries and powers of judicial review.177  As will be subsequently detailed, both in Japan and Mexico those measures have sometimes been used against overactive judges. Its effects do not only apply to the targeted judge or justice but also function as a warning towards other members of the judiciary to refrain from activism. Frequently within civil law countries, this has created a tendency of conservative, ineffective or passive courts.   All the foregoing considerations are exacerbated when dealing with social rights. As will be explained, in Japan and Mexico, courts are aware of the probability for a recognized right to actually be respected by the corresponding agencies even before they decide about the substantive claim itself. Since neither country stipulates a long tenure, this awareness includes a cost/benefit analysis over the effect of each judgment for the judges and justices’ careers. In some countries, including both herein compared, judges are also aware that their decisions may be ignored in many cases. This seems particularly likely when they rule against other branches of power. If that is the case, the judge may simply decide to refrain from judgment.178    4.3.2 Justiciability is affected by the courts´ inadequacies                                                                   177 Evan Rosevear & Ran Hirschl, supra note 1, at 223. 178 James Melton, Do Constitutional Rights Matter? (Working Paper for the University College London, 2004) at 9-11. 65  The courts may have three main types of inadequacies which affect their performance and, in turn, the justiciability of social rights. The first type of inadequacy refers to the lack of sufficient information to render a judgment (indeterminacy). The second type of inadequacy refers to a lack of democratic support (illegitimacy). The third type of inadequacy refers to a lack of technical competence (incapacity). Although such inadequacies may be applicable to all rights, they are specifically problematic regarding social rights as will be now explained.   Regarding the first type of inadequacy (indeterminacy), since social rights tend to be vaguely phrased and ambiguously provided in international and domestic law, they imply that a court must judge according to such indeterminate law. Because social rights are indeterminate, they might arguably be fulfilled in innumerable ways including interpretations that restrict, instead of extend, social rights.   Regarding the second type of inadequacy (illegitimacy), it is important to remember that in democratic countries it is the prerogative of the majority, represented in the legislative branch, to decide upon the national assets and expenses179. Therefore, by adjudicating and compensating public resources, the judiciary would be violating both the separation of powers and the representative principles180 because “[a] court is not the place where it is possible to engage in [the necessary] sort of negotiation and compromise.”181    Regarding the third type of inadequacy (incapacity), the courts have the following technical and practical limitations:                                                                   179 See Martha Jackman, “The Protection of Welfare Rights Under the Charter” (1988) 70 Ottawa Law Review 315. 180 Eyal Kimel, Of Social and Economic Rights and Neo-Liberal Constitution (LLM Thesis, University of Toronto, 2003). 181 Quoted in Deval Desai, ““Courting” Legitimacy: Democratic Agency and The Justiciability of Economic and Social Rights” (2009) 4:1 Annual, Interdisciplinary Journal of Human Rights Law 25. 66   First, courts lack the fact-finding powers required to allocate resources. A judge can neither know the minimum levels of compliance, the state organs involved, or the practices of implementation, nor interview all the affected parties.182   Secondly, “the constitutional review of individual constitutional social rights is impossible, as it leads judges to assess governmental social policies on the basis of individual cases that are not necessarily connected to one another.”183 This is known as the problem of polycentricity.184   Thirdly and finally, even supposing the courts decide to establish or revise a welfare program, how can they guarantee its implementation and monitor its efficiency? Would they have to integrate a bipartisan commission with members of the judiciary and the executive branches? Would they mandate periodic reports of progress? Or would they just consider the mandated organ or branch will act in good faith?   4.3.3 Justiciability of social rights is trivialized  In Connor Gearty´s chapter of the book “Debating Social Rights”, he takes a position against the justiciability of social rights. Gearty outlines three key propositions for his approach to social rights. Although 1) He recognizes that social rights are important and that such rights deserve to be respected, protected and promoted; 2) He states that the value of social rights lies mainly in the political arena and not in the courts´ jurisdiction and; 3) Due to the foregoing, he posits that putting too much importance                                                                  182 Lawrence G. Sager, Justice in Plain Clothes: A Theory of American Constitutional Practice (New Haven: Yale University, 2004) at 86-89; Rodolfo Figueroa, “Justiciab ilidad de los Derechos Económicos, Sociales y Culturales: Discusión Teórica”, (2009) 1:1 Revista Chilena de Derecho 587 ; and Cecile Fabre, supra note 5, at 156. 183 Cecile Fabre, supra note 5, at 109. 184  Peter Cane, An Introduction to Administrative Law (Oxford: Oxford University Press, 1996) quoted in Pushpanathan v. Canada. (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. 67  in the legal process is the ‘least effective way’ of securing social rights and, on the contrary, presents the risk of trivializing them185.   In this train of thought, Gearty praises the role of judges as “secondary actors who hold the state to account for failing to give effect to that which it has already committed itself to a specific, targeted legislation or policy”.186 He also lauds the constitutional inclusion of non-justiciable social rights, citing the example of the explicitly non-enforceable directive principles under the Irish and Indian constitutions. However, he strongly advises against the deceitful combination of including social rights in the constitution in order to make them justiciable.   Gearty argues that “when there is a fixation on justiciability as the benchmark for social rights, its plaintiffs lose valuable and limited resources that could be used in another, more effective method”.187 This is what Gearty calls the “lure of the legal” and can be (and has been), used by many governments to distract the attention of the unprivileged citizens as well as social rights activists. Therefore, it is not only that constitutionalized social rights may be trivial, “however active and intrusive their judicial overseers might choose to be”,188 but rather that such strategy may alienate the plaintiffs from their main goals by fixating them on making such rights justiciable.   Having provided working concepts for justiciability and judicial enforcement in Chapter 1, this chapter deepened the discussion regarding justiciability as a tool for realizing ESCR and producing social transformation. After referring to Avitus Argbor´s “three pillar theory for making ESCR justiciable” two types of arguments were outlined: arguments for and against the justiciability of social rights. Arguments for justiciability include justiciability being unaffected by political interests, favoring of                                                                  185 Connor Gearty, “Against Judicial Enforcement” in Connor Gaerty & Virginia Manouvalou, Debating Social Rights (Oxford: Hart Publishing, 2010) at 1. 186 Ib id. at 55. 187 Ib id. at 33-34. 188 Ib id. at 82. 68  democracy and reducing inequality. Arguments against justiciability include the claim that justiciability is not based in an independent power, the way in which judges and justices’ inadequacies, including indeterminacy, illegitimacy, and incapacity, affect justiciability in practice, and the trivialization of social rights. In the analyses of Japan and Mexico covered in Parts II and III the aforementioned arguments will be revisited in their specific domestic contexts. 69  Chapter 5 The right to social security  After having analyzed the topic of social rights in general, this chapter will  delve into one of its species: the right to social security (RSS), aiming to provide insight regarding the history and evolution of such right. The chapter will analyze the RSS as defined by international law, and the different paradigms and programs that have lead to the current standard of social protection floors. Among other problems, the RSS lacks a shared definition, standards, minimums and domestic obligations at the international level. This dissertation argues that such problem has facilitated, in turn, the contravention of the RSS in domestic jurisdictions, which will be specifically analyzed in Parts II and III of this dissertation.   5.1 The right to social security in international law  The lack of a common definition is probably the most important problem for the RSS in the international arena. Notwithstanding that a commonly cited textbook from the ILO refers to social security as:   “… [t]he protection which society provides for its members, through a series of public measures, against the economic and social distress that otherwise would be caused by the stoppage or substantial reduction of earnings resulting from sickness, maternity, employment injury, unemployment, invalidity, old age and death; the provision of medical care; and the provision of subsidies for families with children.”189  There is no unanimous or legally binding definition of the RSS. In fact, the RSS remains as one of the most flexible and heterogeneous concepts, both in international and domestic law. And regarding justiciability, having a flexible                                                                  189 ILO, Introduction to Social Security (ILO, 3rd edition 1984) at 2-3. 70  definition of the RSS means “it is far from clear what could be the precise obligations of states who ratify the international instruments concerning this right, and/or who incorporate this right in their national constitution”.190   As a right, social security was first developed in international law and was then adopted in the domestic legislation of some countries. In this section, a recapitulation of such development, from the middle ages to the most recent recommendation from the ILO, will be made. The reason for such historical recount is to highlight the consistent lack of a precise definition and protection of the RSS.   5.1.1 Before social security was a right  Social security has a strong historical affinity with Christianity, and particularly the Catholic Church.191  The Sacred Scriptures considered poverty sacred and thus advocated charity for the poor and healthcare for the sick.192 However, with the advent of Protestantism in the XVIth Century, poverty lost its sacramental value,193 and charity competed with beneficence. Charity implied that every man had the duty to help a fellow in need, thus transferring poor relief as a duty of the Church to society at large.194  A second moment came in the XVIIIth Century with the French Enlightenment, when a minimum of welfare for the masses began to be seen as a responsibility for the state. In 1748 Montesquieu commented that: “the State owes every citizen certain                                                                  190 Johan Put, “Social Security Rights ” in Jef Van Langendonck (ed.), The Right to Social Security (Oxford: Intersentia Anterpwen-Oxford, 2007) at 187. 191 See Michell Mollat, The Poor in the Middle Ages: An Essay in Social History (New Haven: Yale University Press, 1986) at 20-25. 192 Ib id. at 50-53. 193 According to this point of view, beneficence reflects a secularization of assistance to the poor. See Francois Ewald, History of the Welfare State (Paris: Grasset, 1986) at 44. 194 Ib id. at 45-46. 71  subsistence, proper nourishment, convenient clothing, and a kind of life not incompatible with health”.195  And in 1755 his fellow philosopher Jean-Jacques Rousseau added that: “the security of individuals is so intimately connected with the public confederation that, apart from the regard that must be paid to human weakness, that convention would in point of right be dissolved, if in the State a single citizen who might have been relieved were allowed to perish…”196  These two Encyclopédistes also helped to create the labor-dependent model of social security. Regarding this subject, in De l'esprit des lois Montesquieu postulates that: “A man is not poor because he has nothing, but because he does not work. The man who without any degree of wealth has an employment is as much at his ease as he who without labor has an income of a hundred crowns a year.”197 Rousseau also proposes work as the primary means of ensuring equality and cautions that: “Man in society is bound to work; rich or poor, weak or strong, every idler is a thief.” 198  The labor-subordinated welfare would come full force immediately after the French Revolution. On one hand, in 1793 the Declaration of the Rights of Man and Citizen recognized that: “Public relief is a sacred debt. Society owes maintenance to unfortunate citizens, either procuring work for them or in providing the means of existence for those who are unable to labor.” 199  On the other hand, with the secularization of the state every individual became responsible for itself.                                                                    195 Montesquieu, Del espíritu de las leyes (Mexico City: Editorial Porrúa, 2007) at Libro XXIII, Capitulo XXIX (Asilos y Hospitales) at 350-351. 196  Jean Jacques Rousseau, A Discourse On Political Economy, Public Domain, 1755, available at: 197 Montesquieu, supra note 195. 198  Jean Jacques Rousseau, Emile, or Education, Translator: Barbara Foxley. 1762, available at: 199 Article 21, Declaration of the Rights of Man and Citizen from the Constitution of Year I (1793) reprinted in Liberty, Equality, Fraternity: Exploring the French Revolution (New York: American Social History Productions, 2001), available at: 72  As was detailed in the chapter related to the welfare state, the laissez passer200 approach would be influential all over Europe until the second half of the XIXth Century, when governments had to deal with pauperism and work-related accidents due to the over-accelerated industrialization.201 The rising pressure of the socialists and worker movements led Chancellor Otto von Bismarck to design and establish a social insurance system.202 Although originally confined to industrial workers, this system was gradually extended to other professions but did not cover unemployed people by any means.203   The German example began to be emulated by other western countries, including England with its National Insurance Act (1911), France with its Social Insurance Act (1930), and the USA with its Social Security Act (1935). 204 Finally, after WWII and under the recommendations of the Beveridge Report, Great Britain set in motion a vast system that unified previous programs and laws into a single insurance scheme. The “Beveridge” insurance scheme was so successful that it became the model endorsed by the UN.205  5.1.2 The ILO and the UDHR                                                                   200 The concept was popularized by Adam Smith in his book “The Theory of Moral Sentiments”. Adam Smith, The Theory of Moral Sentiments (New York: Gutenberg Publishers, 2011). 201  Fabien Bottini, “The Roots of the French Welfare State” (2013) 20:2 Jurisprudence, Mykolo Romerio University 643. 202 The reference to Bismark Laws can be found in Chapter 2. 203 Ignacio Carrillo Prieto, Derecho de la Seguridad Social (Mexico City: Universidad Nacional Autónoma de México, 1981) at 32.  204 José Antonio Herce & Juan Fernando Jimeno, La reforma de las pensiones en el contexto internacional (Mexico City: Editorial UNAM, 2006) at 164. 205 Fernando Solís & Alejandro Villagómez (comps.), La seguridad social en México (Mexico City: Editorial UNAM, 2011) at 156; and Martin Lengwiler, “Cultural, Meanings of Social Security in Postwar Europe”, (2015) 39:1 Social Science History 85. 73  Along with the Declaration of Philadelphia on May 10th, 1944,206 the ILO emitted the first international instrument on Social Security: the Income Security Recommendation (R067).207 In it, income security schemes are suggested to relieve want, prevent destitution and restore income which is lost due to inability to work, or death of a breadwinner. The R067 also established a division between social insurance (which covered workers and self-employed contributors), and social assistance (which covered children, old people, widows and those permanently unable to work).208   In 1948 the UDHR would establish social security as a human right. In this regard, two articles from the UDHR must be analyzed in parallel; whereas Article 22 acknowledges that:  “Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.”209  Article 25 states that:  “(1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control…”210                                                                   206 “III. The Conference recognizes the solemn obligation of the International Labour Organization to further among the nations of the world programmes which will achieve:… (f) the extension of social security measures to provide a basic income to all in need of such protection and comprehensive medical care ” (ILO, Declaration of Philadelphia, 1944). 207 ILO, Income Security Reccomendation (R067)1944, at 1 to 4.  208 Ib id.  209 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 22, available at: 210 Ib id. Article 25.  74  The reading of these two articles in parallel seems confusing. The first sentence of Article 22 announces the right to social security, but the content of such right does not appear until Article 25. As Johannes Morsink points out: “The anomaly is that the phrase "social security" and the standard list are split, for the adjective "social" was left out of Article 25. The split text was caused by a clerical mistake, which went unnoticed for a while and caused a great deal of trouble when discovered.”211  The aforementioned “clerical mistake” influenced how the RSS would thereafter be discussed, defined and enforced. While Article 22 contains a right of a broad and vaguely humanitarian kind, Article 25 contains a more technical and standard legal definition but with the adjective "social" suppressed. Having two possible meanings, each country could choose the interpretation most favorable to their interests.   Additionally, similar to what happened with social rights, there was a strong disagreement between the communist and capitalist standpoints on welfare financing.212 Such disagreement lead to a minimalist interpretation of the benefits listed in Article 25. In order to deny a right to an insurance scheme administered or even financed by the state, “the consensus about the list was that the items on it were part of the cluster right to (social) security, but that the means of implementing that right should be left to the discretion of each state.”213  The UDHR thus settled the role of the state as that of enabler instead of guarantor; its duty could be fulfilled by merely promoting and supervising the RSS instead of                                                                  211 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania Press, 2000) at 200. 212 One notable comment that summarizes the opposition towards social rights comes from Maurice Cranston when he states “what the modern communists have done is to appropriate the word “rights” for the principles that they believe in”. Maurice Cranston, Human Rights To-day (London: Ampersand, 1962) at 38-39. 213 “In this way the drafters refused to link their declaration to any s pecific manner of organizing a national economy. As they had done in the case of property rights, they wanted to allow for the options of mixed economies and social security packages”. Johannes Morsink, supra note 211, at 210. 75  providing it directly.214 Moreover, the benefits of such right appear reserved for laboring citizens and their dependents (in the event of unemployment), thus establishing a paradigm that privileges male, formally employed citizens over any other demographic group. In many nations, including both herein analyzed, this enabled the male breadwinner model and the labor dependency paradigm.215  5.1.3 Minimum standards of social security and the ambiguity of ICESCR´s article 9  Commonly known as “minimum standards for social security”, ILO´s Convention of 1952 (C102) became the first international instrument to establish the nine branches to be covered by social security: medical care, sickness benefit, unemployment benefit, old-age benefit, employment injury benefit, family benefit, maternity benefit, invalidity benefit, and survivors benefit.216 These benefits were granted mainly due to a partial or complete lack of employment, and varied with each state in terms of the population covered, as well as the scope and level of benefits provided.217   Even though C102 remains the flagship convention on social security, it didn’t recognize it as a right per se (as the UDHR did), nor distinguished between social insurance and social assistance. More significantly, once again employees and bureaucrats were privileged over the rest of the population. Therefore, and even                                                                  214 Katharine Young, supra note 6, at 93. 215 “One of the negative effects of merging the right to medical care into the article on social security is that (strictly speaking) a person's rights to food, clothing, housing, medical care, and social services are now all made dependent on his or her being a member of a household or a family with a breadwinner, who was either employed or, as the article says, unemployed "for reasons beyond his control." This merger in effect killed the independent existence of the right to health care and the other rights (to food, clothing, and housing) that are means to help one get and maintain good health…In its desire for brevity, the Third Session merged these rights into the rights workers have to social security for themselves and for their families. Johannes Morsink, supra note 211, at 198-199. 216 ILO, C102, 1952. Parts II to X. 217 Emmanuel Reynaud, “The Right to Social Security – Current Challenges in International Perspective” in Eibe Riedel, Social Security as a Human Right, Drafting a General Comment on Article 9 ICESCR - Some Challenges (Berlin: Springer Publishing, 2007) at 1. 76  though C102 does not mandate a specific way for financing the social security scheme 218 , the characteristics of social insurance with its male 219  breadwinner model220 persisted.  By 1966, the ambiguity in the legal phrasing of the RSS would become worse with the ICESCR221 since its Article 9 only acknowledges that: “The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”222 Being the shortest article in the covenant, and formulated in a very general and abstract manner, the specific content and the limits of the right are not clear. Eibe Riedel explains that this occurred because “the drafters clearly were of the opinion that article 9 would have to be seen in conjunction with Articles 22 and 25 of the UDHR and in particular the ILO Convention No. 102.”223 Moreover, other social security provisions can be found in the same covenant´s Article 10 that indicates:  “The States Parties to the present Covenant recognize that: 1. The widest possible protection and assistance should be accorded to the family… 2. Special protection should be accorded to mothers during a reasonable period before and after childbirth.                                                                  218 “Article 71. The cost of the benefits provided in compliance with this Convention and the cost of the administration of such benefits shall be borne collectively by way of ins urance contributions or taxation or both…” ILO, C102, 1952. 219 The Convention only establishes the terms of: a wife “as a woman who is maintained by her husband” (Article 1(c)); a widow “as a woman who was maintained by her husband at the time of his death” . (Article 1(d)); and a child “as a child under school-leaving age or under 15 years of age, as may be prescribed” (Article 1(e)) ILO, C102, 1952.  220 The term “breadwinner” appears explicitly in this Convention 30 times. In many cases it is used to describe the necessity of granting some type of benefits for the widow and children upon his death (Articles 32, 33, 36, 37, 60); in others, to define him as a “skilled manual male employee” or an “economically active male persons” (Articles 65 and 66).  221 This Covenant came into force the 3rd of January, 1976. 222 Article 9 of the International covenant on Economic, Social and Cultural Rights consulted at: 223 Eibe Riedel, “The Human Right to Social Security: Some Challenges” in Social Security as a Human Right, Drafting a General Comment on Article 9 ICESCR - Some Challenges (Berlin: Springer Publishing, 2007) at 21. 77  3. Special measures of protection and assistance should be taken on behalf of all children and young persons without any discrimination for reasons of parentage or other conditions.”224  As well as Article 11 that mentions:  “1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.”225  As can be seen, there is an interweaving between Articles 9, 10 and 11 of the ICESCR, analogous to that of Articles 22 and 25 of the UDHR. While Article 9 seems to refer particularly to social insurance, Articles 10 and 11 have a broader scope and seem to point towards tax-financed social assistance. Thus, Jennifer Tooze226 has identified two different approaches to such dilemma: 1) The “division approach”, which analyzes Article 9 and Articles 10 and 11 separately, and 2) The “integration approach” which considers Articles 9, 10 and 11 as part of one same continuum.   Having two possible approaches, as usual, each state chose the one that best suited their needs. In practice, most states first covered public employees and then gradually began covering private employees. Rural, informal sector workers, unmarried women, people with disabilities, and non-residents were not covered under the foregoing schemes.                                                                    224  Article 10 of the International covenant on Economic, Social and Cultural Rights , available at: 225 Ib id. Article 11. 226 Jennifer Tooze, “The Rights to Social Security and Social Assistance: Towards an Analytical Framework” in Mashood Baderin & Robert McCorquodale, Economic, Social, and Cultural Rights in Action (Oxford: Oxford Scholarship Online, 2009) at 331-361. 78  Furthermore, according to Francois Merrien, since the 1980s public assistance was diminished worldwide under the pretense that: “economic growth would eventually produce trickle-down improvements in the population’s standard of living as they gradually entered the modern sector.”227 Needless to say, the 1990s economic crises in Mexico and Japan228 proved that such pretense was wrong. As a countering measure, in the late 1990s, short-term safety net programs 229  were developed domestically and endorsed by the World Bank and the International Monetary Fund. 230  Nonetheless, such programs eventually received strong international criticism for being “politically expedient, socially stigmatizing, fiscally unaffordable and creating dependency on handouts.”231   In the 2000s, social assistance was gaining importance over social security in the international debate. The ILO began a campaign towards extending a basic RSS in developing countries.232 In this regard, the conditional cash transfer programs (CCT) of Mexico were presented to defend the feasibility of their claim. 233 The agenda of “social security for all” continued to be pushed by the UN in November of 2007 when the United Nations Committee on Economic and Social Rights (CESCR) adopted General Comment No. 19 (GC19).                                                                   227 François-Xavier Merrien, “Social Protection as Development Policy: A New International Agenda for Action” (2013) 4:2 The Graduate Institute Geneva 89. 228 The Mexican economic crisis took place in 1994 and the Asian economic crisis in 1997. 229 Safety net programs are based on monetary transfers or the provision of food supplies usually combined with recovery programs (such as public works programs) to avoid the “trap of dependency”. See Umberto Gentilini, “Mainstreaming Safety Nets in the Social Protection Policy Agenda: A New Vision or the Same Old Perspective?” (2007) 2:2 Journal of Agricultural and Development Economics 133, available at: 230  See Peter Townsend, “From Universalism to Safety Nets: The Rise and Fall of Keynesian Influence on Social Development” in Thandika Mkandawire, (ed.), Social Policy in a Development Context (Palgrave online, 2004) at 37-62. 231 Stephen Devereux, J. Allister McGregor & Rachel Sabates-Wheeler, “Social Protection for Social Justice” (2011) 42:6 IDS Bulletin, Special Issue: Social Protection for Social Justice  1. 232 The aforementioned was known as the “Global Campaign on Social Security and Coverage for All” and its slogan was that “a basic set of social security benefits is affordable even for developing countries” . 233 The cases used to prove this claim were the Cash Conditioned Transfer schemes of Latin America  such as the Mexican Oportunidades Program. See “Can Low Income Countries Afford Basic Social Security?” Social Security Policy Briefing, Paper 3 (ILO, 2008), available at: 79   5.1.4 General comment no. 19 (GC19)  The GC19 provides the most complete international interpretation of the RSS to this day.234 To begin with, GC19 establishes a clear basis of the RSS on ICESCR´s Article 9, putting an end to the debate between the division and integration approaches. GC19 also defines the RSS: 1) Practical delimitation235; 2) Elements236; 3) Non-Discriminatory application237; 4) Obligations from the States; 5) Coverage by                                                                  234 For the authoritative nature of “Comments and Recommendations” see Nisuke Ando, “General Comments/Recommendations” in Max Planck Encyclopedia of Public International Law (Oxford: Oxford Public International Law), available at: 235 “2.The right to social security encompasses the right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly for children and adult dependents  General Comment 19 The right to social security (art. 9). UN Committee on Economic, Social and Cultural Rights (CESCR) adopted on the 23rd of November 2007.  E/C.12/GC/19 {herafter GC19}. 236 “Availability. States must ensure that a social security system, however composed, is available to provide benefits to address relevant impacts on livelihood. Such system must be administered by the State, and should be sustainable to provide continuity over generations. Social risks and contingencies. States’ social security systems should provide for the coverage of the following nine principal branches: health care; sickness; old age; unemployment; employment injury; family and child support; maternity; disability; and survivors and orphans.  Adequacy. Benefits provided under a social security arrangement must be adequate in both amount and duration to ensure that recipients may realize their rights to family protection and assistance, an adequate standard of living, and adequate access to health care. To facilitate this, States should regularly monitor the criteria used to determine adequacy. When a person makes contributions to a social security scheme that provides benefits to cover lack of income, there should be a reasonable relationship between earnings, paid contributions, and the amount of relevant benefit. Accessibility. Access to social security involves five key elements: coverage, eligibility, affordability, participation and information, and physical access. Everyone should be covered by the State’s social security system, particularly the most disadvantaged and marginalized groups, without discrimination  on any prohibited ground. Non-contributory schemes will be necessary to ensure universal coverage. Qualifying conditions must be reasonable, proportionate and transparent. Any termination, suspension or reduction of benefits should be prescribed by law, based on reasonable grounds, and subject to due process. Any contributions required under a social security scheme must be stated in advance, affordable for all, and should not compromise other human rights. Everyone must have access to information on social security entitlements, and be able to participate in available social security systems. States should make sure that everyone can physically access social security services to access benefits and information and make any required contributions, with particular attention given to persons with disabilities, migrants, and persons living in remote, disaster-prone, or conflict areas (GC19). 237 Including 1. Equality 2. Gender Equality 3. Workers inadequately protected by social security (part-time, casual, self-employed and homeworkers) 4. Informal economy 5. Indigenous Peoples and Minority Groups 6. Non-nationals (including migrant workers, refugees, asylum -seekers and stateless persons) and 7. Internally displaced persons and internal migrants (GC19). 80  the State in both public and private schemes238; 6) Violations239 and; 7) Monitoring, Indicators and Benchmarks.240  GC19 also provides a concrete, clear and practical guide of the minimum duties that must be covered by each state in order to comply with Article 9. Such duties are known as “Core Obligations”, and include: a) ensuring access to a social security scheme that will enable all individuals and families to have essential health care, basic shelter and housing, water and sanitation, foodstuffs, and the most basic forms of education, or in its defect a core group of social risks and contingencies; b) ensuring this access on a non-discriminatory basis, especially for disadvantaged and marginalized individuals and groups; c) respecting existing social security schemes and protecting them from unreasonable interference; d) monitoring the extent of the realization of the RSS and; e) using all resources that are at its disposal in an effort to satisfy, as a matter of priority, these minimum obligations.241  Additionally, GC19 clarifies that the practical implementation of the RSS requires each state to take whatever steps necessary to ensure that everyone enjoys such right as soon as possible. These measures include creating laws, strategies, policies and programs, or adapting the existing ones to ensure that they are compatible with                                                                  238 “46. Where social security schemes, whether contributory or non-contributory, are operated or controlled by third parties, States parties retain the responsibility of administering the national social security system and ensuring that private actors do not compromise equal, adequate, affordable, and accessible social security. To prevent such abuses an effective regulatory system  must be established which includes framework legislation, independent monitoring, genuine public participation and imposition of penalties for non-compliance” (GC19). 239 “62. To demonstrate compliance with their general and specific obligations, States parties must show that they have taken the necessary steps towards the realization of the right to social  security within their maximum available resources, and have guaranteed that the right is enjoyed without discrimination and equally by men and women. Under international law, a failure to act in good faith to take such steps amounts to a violation of the Covenant.” (GC19). 240 “74. States parties are obliged to monitor effectively the realization of the right to social  security and should establish the necessary mechanisms or institutions for such a purpose. In  monitoring progress towards the realization of the right to social security, States parties should identify the factors and difficulties affecting implementation of their obligations.” (GC19). 241 GC19 (Article 59). 81  obligations arising from Article 9.242 Very importantly, GC19 calls for a national social security system that is sustainable, inclusive, non-discriminatory, constantly monitored, and which includes targets or goals.243 Such system must be based on the principles of accountability and transparency which are state obligations and remain so even should its implementation be delegated to regional or local authorities.244    Finally, and very relevantly for this dissertation, GC19 provides remedies and accountability for any person or groups who have experienced violations against their RSS. These remedies may be either judicial or of another kind, both at national and international levels, and should entitle to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition. Also, legal standing is given to national ombudspersons, human rights commissions, and NHRI. In this regard, GC19 suggests incorporating the ICESR to domestic law in order to enhance the scope and effectiveness of remedial measures, thus enabling courts to adjudicate the RSS by direct reference to the covenant. 245  But along with all these advantages, GC19 has a significant problem within its legal nature.246 General Comments are only “non-binding norms that interpret and add detail to the rights and obligations contained in the respective human rights treaties.”247 Therefore, “while States will give them careful consideration, they may not give effect to them as a matter of course”248.                                                                   242 GC19 (Article 75). 243 GC19 (Article 68). 244 GC19 (Article 73). 245 International Law Association: Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies (London: ILA, 2004) para 18. 246 See MoJ/EAP UNCRPD Project Research Note: The Legal Status of General Comments, May, 2014 1. 247 Helen Keller & Leena Grover, “General Comments of the Human Rights Committee and their  Legitimacy” in Helen Keller & Geir Ulfstein (eds.), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge: Cambridge University Press, 2012) at 129. 248 International Law Association, Committee on International Human Rights Law and Practice, Final Report on the Impact of Findings of the United Nations Human Rights Treaty Bodies  (London: ILA, 2004) note 55, para 16. 82   5.1.5 Social protection floors  The broad, developmental and rights-based approach from the turn of the millennium suffered a setback with the world economic crisis of 2008-2009. In this regard, during their 100th Labor Conference, the ILO recognized that the canonical C102 had failed to attain a defined minimum benefits package with universal coverage.249 Thus, a new mechanism for “horizontal coverage extension” was elaborated and came to be known as the Social Protection Floors (SPF).  In 2011 the ILO acknowledged that “there [was] a need for a Recommendation complementing the existing standards that would provide flexible but meaningful guidance to Member States in building SPF within comprehensive social security systems tailored to national circumstances and levels of development.”250 To this effect, in June of 2012 the ILO emitted its Social Protection Floors Recommendation (R202) “to establish or maintain SPF as fundamental elements of national social security systems, and to extend them to ensure higher levels of social security for as many people as possible.”251  Along with the Recommendation, a formal concept of SPF was denoted as “nationally defined sets of basic social security guarantees which secure protection aimed at preventing or alleviating poverty, vulnerability and social exclusion.” 252 R202 requires that such guarantees ensure access to all in need at a minimum, “to                                                                  249 ILC.100/VI.VI Report of the International Labour Conference, Social security for social justice and a fair globalization. Recurrent discussion on social protection (social security) under the ILO Declaration on Social Justice for a Fair Globalization, Sixth item on the agenda. 100th Session, (Geneva, June 2011) at 147. 250 ILC. 2011a. “Conclusions concerning the recurrent discussion on social protection (social security)”, in ILC, Resolutions adopted by the International Labour Conference at its 100th Session .  251 Social Protection Floors Recommendation, (Geneva ILO, 2012) Paragraph 1. {Hereafter SPFR). 252 SPFR Paragraph 2, (emphasis added). 83  essential health care, basic income security and to goods and services, defined as necessary at the national level.”253   R202 also mandates that their beneficiaries must be children (regardless of their residency status), as well as older persons, and persons unable to earn sufficient income (residents of the State Party).254 In addition, R202 establishes that SPF must be established by a national law that specifies the range, qualifying conditions, and levels of the benefits, and provides free access to impartial, transparent, effective, simple, rapid and accessible complaint and appeal procedures. 255  Finally, in Paragraphs 8-12, R202 provides a series of policy suggestions for implementing the SPF but leave them open for each state to choose.256   Thus, R202 leaves the contents, limits and reclamation mechanisms of the SPF to each state party. For practical terms, this means that the RSS is subject to the economic and political ideologies of the government in turn. Therefore, R202 presents a vision of social security which in practice is: 1) prone to manipulation by political agents; 2) separated from the rights-based perspective and; 3) unclear in its hierarchy among the previous instruments that rule the RSS.   Regarding this last point, R202 has a similar problem to GC19. Whereas ratified ILO conventions have the same binding effect as treaties and can be invoked in most national courts257, the ILO recommendations do not have binding force, and only intend to provide guidance for law and policymaking.258 Thus, having an open ended, multi-referential and nonbinding international guide provides little or no help for making the RSS justiciable.                                                                   253 SPFR. Paragraph 4, and 5. 254 SPFR Paragraph 5 and 6. 255  SPFR Paragraphs 7-11. 256 SPFR Paragraph 8 (d). 257 See Virginia A. Leary & Daniel Harry Warner (eds .), Social Issues, Globalisation and International Institution: Labour Rights and the EU, ILO, OECD and WTO (Amsterdam: Nijhoff Leiden, 2006) at 77-95. 258 Heiko Sauer, “International Labour Organization (ILO)” in  Max Planck Encyclopedia of Public International Law (Oxford: Oxford International Public Law, 2014) at paragraph 15. 84   Worse yet, SPF are less robust and well-grounded than the standards set by ILO C102 and GC19. Nonetheless, according to Virginia Leary, the reason for advancing an international agenda to adopt the SPF is that “social security systems, once the focus of neo-classical political criticism for decades, are now recognized as important social and economic stabilizers.”259   5.2 Contemporary distinction between social security, social assistance and social insurance   As has been explained, for the ILO, social security, social assistance and social insurance have become synonyms since the R202 of 2012. The practical distinction henceforth has become whether programmes are contributory (social insurance) or non-contributory (universal or categorical social benefits in cash and in kind and means-tested social assistance). But even though ILO is the most important international organization to establish standards on social security, definitions vary widely in other organizations and across countries.   The OECD for example, acknowledges that there are overlaps and interrelationships between the terms social benefits260, social assistance, social security and social insurance. Nevertheless, this organization also recognizes that such terms are not necessarily self-explanatory and are not always used consistently, especially when comparisons are made between countries with different institutional structures. Taking these problems into consideration, the OECD proposed in 2013 a theoretical framework for standardizing the types of schemes providing social benefits dividing                                                                  259 Michael Cichon, Christina Behrendt & Veronikla Wodsa, The UN Social Protection Floor Initiative: Moving forward with the Extension of Social Security (ILO, IPG 2 /2011) at 4. 260 Social benefits are the payments made to households as part of social assistance, social  security and other social insurance, or social transfers in kind. The payments are made when certain events occur, or certain conditions exist, that may adversely affect the welfare of the households concerned either by imposing additional demands on their resources or reducing their incomes. Social benefits may be provided in cash or in kind. OECD, Framework for Statistics on the Distribution of Household Income, Consumption and Wealth  (Paris: OECD, 2013) at 225. 85  them into: a) social assistance schemes, and b) social insurance schemes (further divided into: b1) social security schemes, and b2) employment-related social insurance).  a) Social assistance schemes comprise social benefits provided in cash either for the population at large, or segments of the population, funded by general government and without direct contributions to the scheme by, or on behalf of, potential beneficiaries. Benefits may be universally available, such as a pension paid to all the population over a certain age or to all people with a specific disability, such as blindness. More commonly, beneficiaries usually have to meet other conditions. In particular, benefits are often “means-tested”, i.e. available only to people with income and assets below specified thresholds, and it is likely to require additional conditions relevant to particular benefits. For example, unemployed people may be eligible for unemployment benefits only if they can show that they are actively seeking employment.261 b) Social insurance schemes comprise social benefits provided to participants in insurance schemes that meet at least one of the following conditions: i. Participation in the scheme is obligatory either by law or under the terms and conditions of employment of an employee, or group of employees. ii. The scheme is a collective one operated for the benefit of a designated group of workers, whether employed or non-employed, participation being restricted to members of that group. iii. An employer makes a contribution (actual or imputed) to the scheme on behalf of an employee, whether or not the employee also makes a contribution.262                                                                   261 Ib id. at 226. 262 Ib id. 86  b1) Social security schemes are social insurance schemes operated by general government. They may be operated on behalf of the whole population or on behalf of specific segments of the population. Employers may provide social contributions to social security schemes, but the full responsibility for paying benefits lies with general government. b2) Employment-related social insurance is any type of social insurance other than social security and is always tied to employment. Schemes set up by governments to provide pensions or other social benefits to their own employees, including defence personnel, are normally employment-related social insurance, and are not regarded as social security.263  Notwithstanding the previous distinctions, it is important to remember that all international legislation and recommendations pertaining the implementation of the RSS delegate such endeavor to each State party. Therefore, in this dissertation, the RSS will be understood as comprising both the sub-categories of social assistance and social insurance since, as will be explained in the subsequent chapters, they are confused in both of the countries herein examined. Moreover, it will be argued that such confusion is intentional in both countries, and serves the purpose of establishing a discretionary, limited, and employment-conditioned interpretation of the RSS by the courts at the domestic level, while maintaining an appearance of compliance and progressiveness at the international level.  This chapter provided several of the existing definitions for the RSS. Due to such plethora of definitions, it was demonstrated that there exists a lack of consensus, which in turn makes the constitutionalization of such right very difficult. The chapter also advanced that since the international documents related to the RSS delegate the standards for compliance to each member state, the indeterminacy of the RSS                                                                  263 Ib id. at 227. 87  is sometimes intentionally used by some countries to render such right as unenforceable. Such claims will be specifically proven in Parts II and III of this dissertation.   88  PART II THE CASE OF JAPAN  Chapter 6 Japan as a welfare state  To understand social rights, and the RSS in Japan, it is important to first explain the development of Japanese welfare before and after WWII. Along with the historic overview of the Japanese case, the elements required for such evolution will  be examined. As it will be later explained, there exist specific elements which distinguish the case of Japan from the definition of welfare state established in Chapter 2.1. This chapter will be especially dedicated to the analysis of such elements.    6.1 History of Japanese welfare before the 1980s  Like most countries, social security in Japan began as charity. However, whereas religious organizations used to help the needy regardless of their condition, the Japanese government has historically provided welfare relief only to those without a family. This particularity would determine the beneficiaries and the design of the welfare apparatus of Japan.   6.1.1 From Meiji to the defeat in war (1868-1944)  Since the Meiji Era in the late XIXth Century, the Japanese state had a subsidiary role in providing protection for the needy. Even the first Japanese poor law, the Relief Order of 1874,264 provided only a minimum amount of benefits for people without a                                                                  264 Poor Relief Order (1874), No. 162, Introduction. See Ministry of Health and Welfare Fifty-Year Historical editorical Board (ed.), Fifty-Year History of Ministry of Health and Welfare (Tokyo: Chuo-hoki-shuppan, 1988) at 241. 89  family. Moreover, in the case that the Meiji government could identify a family member healthy enough to work, welfare would be automatically denied to or withdrawn from the recipient. The reason adduced for this was that “any other way of proceeding would enable the few “lazy people” to abuse the work of the many.”265   To a certain extent, this paradigm was modified by Japan´s militarism which began with the first Sino-Japanese War. According to Sheldon Garon, “in 1932 came a tenfold increase in assistance recipients and an eightfold increase in private welfare organizations; all within just two years”.266 The reason for such welfare increase was both to control the internal uprising of socialist movements, and to mobilize and enhance the human resources of the nation.267   In the first sense, the discourse of social welfare was a powerful tool to portray a government that was not only thinking about the conquering of distant lands but also about the problems in their own land. In the second sense, the promulgation of the National Health Insurance Act (1938), and the establishment of the Employee Pension System (1941) served respectively to conscript the newly affiliated workers and farmers, and to use their contributions to finance the wars.268   But welfare expenditure ceased with the attack on Pearl Harbor. When Japan joined WWII, all her resources were reallocated to military expenses. Not only was the welfare budget for civilians reduced, but the health benefits of the wounded soldiers were also maintained to a minimum.                                                                     265 Stephen J. Anderson, Welfare Policy and Politics in Japan: Beyond the Developmental State  (New York: Paragon House, 1993) at 41-42. 266 Sheldon Garon, Molding Japanese Minds: The State in Everyday Life  (Princeton: Princeton University, 1997) at 43. 267 Ib id. at 58. 268 Stephen J. Anderson, supra note 265, at 52-53. 90  6.1.2 From the occupation to the social welfare services act (1945-1951)  With the defeat and surrender of Japan, the Potsdam Declaration of July 26, 1945, was imposed. The Declaration ordered 1) the removal of permanent authority and influence of those who deceived the Japanese people and led them to attempt world conquest, 2) the occupation of the country until a new peaceful, safe and just order was established and the destruction of military power was confirmed, 3) the complete disarmament of the army, 4) the punishment of war criminals and removal of obstacles that prevented the democratization of the country, and 5) the reconstruction of the economy and industry.269  To supervise the completion of such objectives and lead the Occupation Army, General Douglas MacArthur was named Supreme Commander of the Allied Powers (SCAP). MacArthur was aware of the importance that welfare had for Japanese military mobilization and decided to use it to provide relief for a devastated nation, and legitimacy for the Occupation Army. Thus, the SCAP model of welfare provided one crucial difference when compared to the previous one, it stated that “the Japanese government should be primarily responsible for welfare provision to support people´s basic standard of living, and the benefits should be provided to all citizens without discrimination.”270   SCAPS´ model concurred with the aforementioned Potsdam objectives 4) and 5). In MacArthur´s plan, promoting welfare enabled social equality and economic development. Thus, the controversial concept of 生活保護  {seikatsu hogo} (translated as life, livelihood, or minimum standards of living, depending on the                                                                  269 Potsdam Declaration, Proclamation Defining Terms for Japanese Surrender, (Issued at Potsdam, July 26, 1945), available at: 270 Masayuki Fujimura, “Comparing Japanese and Korean welfare regimes” quoted by Sunil Kim, Reforming Pension with Pensioners: Social Dialogue and the Politics of Developmental Welfarism in Japan and Korea  (Berkeley: PhD Dissertation, 2011) at 19.  91  author) would be included in Article 25 of the new Constitution of Japan, promulgated on November 3rd, 1946 and into force in May 3rd, 1947.   SCAP´s reforms continued with more specific measures for the recovery of the war bereaved. The Child Welfare Act (1947), 271  the Persons with Disabilities Act (1949),272  and the Public Assistance Act (1950),273  were enacted and became known as the “three laws of welfare” advanced by the SCAP.274 These laws were influenced by the New Deal ideology of the Occupation Army.   Nonetheless, by 1949 a local economic crisis and the rise of the communist threat from China led the SCAP to change its priorities in what is commonly known as the “reverse course”.275 For welfare, the reverse course meant new budget cuts and the return of the Japanese pre-war bureaucrats. Accordingly with these changes, the  Social Welfare Act (1951)276 reverted welfare as a non-justiciable right; the Civil Code was reformed to restate the “family responsibility” for the unhealthy, and the welfare agencies began to place the onus of not having a healthy family member as a reason for dismissal.277   6.1.3 The LDP and welfare expansion (1951-1979)  The San Francisco Treaty of 1951 marked the formal end of the Occupation, and by 1952 Japan had regained its independence.278 A new political, economic and social                                                                  271 児童福祉法(Jidō fukushi-hō ) Child Welfare Act, Act No. 164 of 1947. 272 障害者基本法 (Shōgaishakihonhō) Basic Act for Persons with Disabilities, Act No. 84 of 1949.   273 生活保護法(Seikatsuhogohō) Public Assistance Act, Act No. 144 of 1950. 274 Konosuke Odaka, The Evolution of Social Policy in Japan (Washington: World Bank Institute, 2002) at 1.  275  Peter Duus (ed.), The Cambridge History of Japan, Volume 6: The Twentieth Century  (Cambridge: Cambridge University Press, 1988) at 43. 276 社会福祉法 (Shakai fukushi-hō) Social Welfare Act, Act No. 45 of 1951. 277 Sunil Kim, supra note 270, at 7-9. 278 No. 1832. Treaty of Peace with Japan. Signed at San Francisco, on 8 September 1951, available at: 92  system began to take shape from the amalgamation of the Prewar and SCAP paradigms. In such sense, although by 1949 the SCAP had reversed its progressivism and disfavored socialist ideas, it was the triumph of the Liberal Democratic Party (LDP) which determined a complete return of welfare conservatism in Japan.   The LDP has ruled from its foundation in 1955 to this day (with a brief interruption from 2009-2012)279 maintaining a majority in the Diet from 1955 to 1993 and from 2016 to this day. Similar to the case of Mexico, the LDP has won by targeting specific groups of voters such as farmers and small business owners offering them welfare protection. Thus, welfare (or its promise), has been systematically used by the LDP for votes, legitimacy and maintaining political power.280  Since its origins, the LDP developed welfare programs including universal pension and health insurance schemes (promised in campaign in 1958, and enacted as the National Pension Insurance in 1961), welfare service for the elderly (1963), and welfare for mothers and widows (1964).281 The welfare approach was also evident in expenditure, and during the governance of Sato Eisaku (1964-1972), national pension benefits were doubled, free medical care for the elderly was introduced and pensions were indexed to the rate of inflation.282    Nevertheless, welfare expansion ended with the Oil Crisis of 1973. There was a small but noticeable retrenchment in social expenditure and state provided services 283 . Moreover, after the Second Oil Crisis of 1979, the government                                                                  279 Mexico´s PRI has similarly ruled from 1929 and until this day (minus 12 years from 2000 to 2012). 280  Margarita Estévez-Abe, Welfare and Capitalism in Postwar Japan: Party, Bureaucracy, and Business  (Cambridge: Cambridge Studies in Comparative Politics, 2008). 281 Sunil Kim, supra note 270, at 20. 282 James I. Matrayat, Japan's Emergence as a Global Power (Westport: Greenwood Press, 2001) at 38. 283 Gregory Kasza, One World of Welfare: Japan in Comparative Perspective  (Ithaca: Cornell University Press, 2006) at 67. 93  proclaimed a New Economic and Social Seven Year Plan to create a “proper system of public welfare built on the basis of self-help efforts of individuals and cooperation within families and communities.”284  6.2 Japanese-style welfare society (1980-1990)  As T. J. Pempel and Toshimitsu Shinkawa indicate, the paradigm of “company based welfare”, in which a large part of social welfare responsibilities was transferred to private companies, existed in Japan since before WWII.285   Company based welfare was beneficial in Japan both for the companies and for the government. On one hand, the companies provided a system of work protections including lifetime employment, company insurance schemes, health services, pension plans, productivity and loyalty bonuses, etc. On the other hand, the government offered the companies tax deduction for their welfare expenditure, the possibility to invest employee pension contributions, and a paternalist economy that restricted competition with foreign markets.286  However, company based welfare had one important weakness; it was only useful for employees in a constantly growing economy. In this sense, social rights were work-derived or, more precisely, company-derived.287 Furthermore, “the benefits that a worker received could greatly differ across companies, industries, jobs and                                                                  284 Arthur Gould, Capitalist Welfare Systems: A Comparison of Japan, Britain and Sweden  (New York: Longman Publishing, 1993) at 37(emphasis added). 285 Toshimitsu Shinkawa and T. J. Pempel, Occupational Welfare and the Welfare State in America, Scandinavia, and Japan (London: Macmillan, 1996) at 299. 286 Margarita Estévez-Abe, supra note 280, at 30-40. 287 Company-derived welfare is very similar to the paradigm of labor-dependant welfare explained in Chapter 5. 94  other variables.”288 These circumstances began to generate inequality in the self-defined “Japanese middle-class society.”289   In such regard, since the 1980s, priorities completely departed from welfare, and shifted towards economic growth. The neo-liberal pretense of the “trickle-down effect”290 was used by the LDP leaders “as the most crucial remedy for the social disease.”291 Furthermore, in a speech to the Diet, Masayoshi Ohira indicated that “welfare facilities and services should be carried out by the local community and private organizations.”292 Thus, the rhetoric of “Japanese-style Welfare Society”293 understood as “the minimum security by the government plus the spirit of self-help”294, began to be commonly used by the government to imply a sum of company based welfare plus self-reliance.   Since company based welfare was an important element for “Japanese-style Welfare Society”, a series of policies to subsidize employment even in non-competitive industries were enabled by the Japanese government. One such policy, which was also endorsed by the Supreme Court of Japan (SCJ) was known as the principle of “abusive dismissal”295 and was used to delay or impede firing workers. Employment protection was intended to maintain the public perception of the                                                                  288 Stephen J. Anderson, supra note 265, at 28. 289 See Ezra F. Vogel, Japan's New Middle Class: The Salary Man and His Family in a Tokyo Suburb of California  (Los Angeles: University of California Press, 1971) and then contrast with Jeff Kingston, Contemporary Japan: History, Politics and Social Change since the 1980s (London: Wiley-Blackwell, 2010). 290 The “trickle down effect” was discussed in Chapter 3.  291 Toshiaki Tachibanaki, “Japan was not a Welfare State, but…” in Richard T. Griffiths and Toshiaki Tachibanaki, (eds.), From Austerity to Affluence: The Transformation of the SocioEconomic Structure of Western Europe (New York: St. Martins Press, 2000) at 201. 292 Sunil Kim, supra note 270, at 25 (emphasis added). 293 The term “Welfare State” is avoided as such in the next couple of decades. “Society” as a term was preferred in order to avoid an immediate responsibility by the Japanese Government. 294 Miki Takeo quoted in Christian Aspalter, Social Works in East Asia (New York: Routledge, 2016) at 22. 295 This criterion was first established in the case of Nihon Salt Manufacturing Case, (Supreme Court, 2nd petty bench, 25 April 1975, 29 Minshu p 456 and reiterated in Kochi Broadcasting Co. (Supreme Court, 2nd petty bench, 31 January, 1977, Rodo-Hanrei p 268). 95  “Japanese middle-class society” and at the same time transfer the employee´s welfare to the private companies.  But in contrast to employment protection, social assistance was seriously undermined in the 1980s. Among other consequences, healthcare ceased to be free, public assistance budget was reduced, the retirement age for pension was announced to be raised to 65 years, and the required contribution years to qualify for full pension benefits was lengthened to 40 instead of 32.296 More importantly, the term 国民負担 {kokumin futan} (translated as “public burden rate” or “people´s burden rate”), began to be commonly used by the LDP administrations.   The people´s burden rate is the proportion of total tax revenue (combining tax and social security contributions) to national income. According to Mari Miura,297 more important than its technical definition, such term makes it seem like the people 国民 {kokumin}, bear the tax burden負担 {futan}, without receiving any benefit in return. In this way, this term began to be used to gain the favor of the public opinion regarding welfare retrenchment.   Along with people´s burden rate came a media campaign that exalted the stable employment rates, and the support that the government gave to workers. More importantly, the campaign reinforced the notion that the government´s role was always subsidiary to that of the family and the private company. Such subsidiarity generated the next welfare crisis, one whose aftershock continues to this day.298                                                                     296 Gregory Kasza, “The Rise (and fall?) of Social Equality: The Evolution of Japan’s Welfare State” in Alisa Gaunder (ed.), Routledge Handbook of Japanese Politics (New York: Routledge, 2011) at 196. 297 Mari Miura, Welfare through Work: Conservative Ideas, Partisan Dynamics, and Social Protection in Japan  (New York: Cornell University Press, 2012) at 60-61. 298 The concept of subsisdiarity in Japan is particularly developed in Gøsta Esping-Andersen, “Hybrid or Unique? The Japanese Welfare State between Europe and America” (1997) 7:3 Journal of European Social Policy 179. 96  6.2.1 The full-time housewife   Since the Public Assistance Act, the Japanese state had relied on the family as the basis for welfare, a characteristic of the residual model of welfare. Richard Titmuss defines the residual model of welfare “as that in which social services form a safety-net under the economic system, and only when the "natural" channels of welfare         -the private market and the family- break down "should social welfare come into play, and then only temporarily". 299  In this fashion, social policies and employment practices were allegedly enforced to maintain the “traditional family”, but in practice reinforced women´s economic dependence on men and discouraged divorce.   Notwithstanding the foregoing, in 1981 Japan signed the International Convention on the Elimination of all Forms of Discrimination against Women (CEDAW).300 With this international basis, women groups began to mobilize and protest against the discriminatory practices on employment and welfare.301 More alarmingly for the status quo, some women under the age of forty began “focusing on fulfilling their personal and career aspirations and refusing to subscribe to the traditional fertility patterns.”302 The results of such changes would be reflected in 1989´s total fertility rate (TFR) which hit a record-low of 1.57 children per woman, well below the replacement rate of 2.08 children per woman.   For the Japanese state, the previous developments were critical for two reasons. The first reason has to do with the dependency rate (DR), which measures the relationship between the economically active (in this case thought to be male                                                                  299 Richard Titmuss, “Social Policy” in Stephan Leibfried & Steffen Mau (eds.), Welfare States: Construction, Deconstruction, Reconstruction (Cheltenham: Edward Elgar Pub., 2008) Volume I, at 30-31. 300 Japan did not ratify the CEDAW until 1985. 301 See Yumiko Ehara, “Japanese Feminist Social Theory” in Anthony Elliott, Masataka Katagiri & Atsushi Sawai, The Routledge Companion to Contemporary Japanese Social Theory: From individualization to globalization in Japan today (New York: Routledge, 2013) at 163. 302 Ito Peng, “Social Care in Crisis: Gender, Demography, and Welfare State Restructuring in Japan Social Politics” (2012) 9:3 Social Politics 411. 97  company workers), and the economically inactive (in this case thought to be infants, elders and, depending on the government´s interests, women). In order for the Japanese-type Welfare Society to work properly, a DR with more economically active persons is required to maintain the welfare of those inactive. As can be expected, this could not be achieved with such a low TFR.  The second reason lies in the instrumentality of women for the residual model of welfare. Women´s cooperation as “full-time housewives” (a romanticized role of the female caregiver of both children and the elderly), was necessary to avoid or at least reduce costs to the government. Both policy and media campaigns encouraged the conservative ideal of the woman´s dual role as wife and mother.303 Indeed, the “male breadwinner model” desperately depended in the “full-time housewife” not only for the viability of the family, but also for that of the welfare system at large.  The Ministry of Health and Welfare (MHW) became aware of the foregoing and began taking emergency measures. First, it targeted husbands without a full-time job by promoting a reform that allowed non-employed citizens to contribute and receive an old-age pension, and modicum healthcare. 304  Second, it reluctantly enacted the Equal Employment Opportunity Law (EEOL)305 intending to comply with the CEDAW in order for its ratification and international approval.  The reforms respectively supported the male breadwinner model, punished women who not complied with the dual role of mother and wife, and saved face in the                                                                  303 See Tomiko Yoda, “The Rise and Fall of Maternal Society: Gender, Labor and Capital in Contemporary Japan” in Japan after Japan: Social and Cultural Life from the Recessionary 1990s to the Present (Durham: Duke University Press, 2006) at 239-274; and Chizuko Ueno, The Modern Family in Japan: Its Rise and Fall , (Melbourne: Melbourne Trans Pacific Press, 2008). 304 Christian Aspalter, supra note 294, at 22. 305 男女の均等な機会及び待遇の確保等女子労働者の福祉の増進に関する法律 (Danjo no kintōna kikai oyobi  taigū no kakuho-tō joshi rōdō-sha no fukushi no zōshin ni kansuru hōritsu) Act on Equal Opportunity between Men and Women in Employment, Act No. 113 of 1972 (a.k.a. Equal Employment Opportunity Law). 98  international community. When the reforms were put to practice, the subsidies for unemployed husbands maintained them in lower paying part-time jobs and, even though the EEOL “prohibited discrimination against women in terms of training, fringe benefits, mandatory retirement, and dismissal”, it did not do so “in recruitment, hiring, assignment and promotion”306 rendering it useless in the long term.    Additionally, “traditional women” (i.e. housewives) were encouraged to fill their role with welfare incentives and tax deductions. The statutory share in the inheritance of a spouse, for example, was increased from one-third to one-half, so by the end of the decade “the treatment of spouses reached a point that can only be described as excessively favorable to male breadwinners.”307 Because of it, “since the 1990s Japan´s livelihood security system has been even more rigidly locked into the male breadwinner model than that of any other country.”308  6.2.2 The graying society  The other problem of the Japanese Style Welfare Society has to do with its aging population. Since 1949 life expectancy at birth in Japan has consistently increased surpassing all other industrialized countries since 1970 at 72 years.309 By 1980 the Japanese population aged over 65 years comprised more than 10% of its total.310                                                                   306 In practice, the EEOL was just a smokescreen for the big companies that complied with the gender quota hiring one or two women for middle managerial positions without promotion and the rest of them as indefinite part-timers with limited salary and benefits. See Mari Miura, supra note 297, at 78. 307 Mari Osawa, “Twelve Million Full-time Housewives: The Gender Consequences of Japan´s Post-War Social Contract” in Oliver Zunz, Leonard Schoppa & Nobuhiro Hiwatari (eds.), Social Contracts under Stress: The Middle Classes of America, Europe and Japan at the Turn of the Century  (New York: Russel Sage Foundation, 2009) at 265. 308 Mari Osawa, Social Security in Contemporary Japan: A Comparative Analysis (New York: Routledge, 2011) at 53.  309 As of 2012 Japan has a record average of 83 years. Table I-45 consulted in the Ministry of Health, Labor and Welfare, available at: 310 The World Bank, Population ages 65 and above (% of total), available at: 99  The problem is not only the age increase and its respective costs, but also the specific generation which is achieving such life expectancy; the Baby Boomers. Having been born in the years 1947-1949, this cohort was disconnected with most of the experiences of war and deprivation from their parents and grew mainly in times of economic prosperity. The Baby Boomers were also raised under new standards and policies that favored the nuclear family and disapproved of the three-generation household (a model prevalent until WWII in which grandparents helped to care for children in exchange of reciprocity in their final years).    The Baby Boomers are notoriously active as a political pressure group with the highest levels of participation in elections and referenda.311 Hence, for the LDP this has been a generation that has always received special considerations in order to gain their favor. By such logic, for example, the Act of Health and Medical Services for the Aged was enacted in 1982 to “make up for the limitations of the public expenditure system of medical bills for the elderly.”312   In 1989, after various social cuts and the introduction of the consumption tax, an even bigger deferral was made favoring the Baby Boomers with the Ten-Year Strategy to Promote Health Care and Welfare for the Aged (a.k.a Gold Plan). Unlike other social policies, the Gold Plan “was given three times as much budget as had been given for the past 10 years, and various efforts were made to realize it by setting target figures for concrete deadlines and performance.”313 Ye