Constitutional Courts as Bulwarks against the Erosion of Social and Economic Rights through Free Trade Agreements: Colombia and South Africa Compared

Over the past decades, the process of untrammelled trade liberalization has engulfed many parts of the world. Albeit the attenuated success obtained on trade facilitation on global trade in Bali 2013, the global proclivity toward bilateral trade deals remains patent. The acceleration of this trend can be explained by the inability of political masters and their economic sherpas to reach a comprehensive global trade deal. Within many bilateral agreements negotiated between industrialised countries, on the one hand, and emerging or developing nations, on the other hand, elastic provisions are included that go far beyond what negotiators contemplate in the Doha Round talks. To our understanding, the expansive content of the trade agreements are both cause and effect of the observable growing politicisation of trade negotiations and trade policy tout court. Some of these expansive provisions that are included in the final agreements often have debilitating effects on the attainment of economic and social rights of citizens in ways unforeseen or simply neglected during the negotiations. Increasingly municipal courts are joining social activists to unequivocally say ‘stop!’ to this trend. This article systematically compares the manner in which the highest courts in Colombia and South Africa have served as bulwarks against the erosion of constitutionally protected economic and social rights through free trade agreements entered with industrialised countries. It goes beyond the political interests at stake in some of the agreements to present the nature of the mandates (jurisdiction) of the respective constitutional courts par rapport the enforcement of international (constitutional) human rights rules; locus standi before the courts; res judicata (merits of decisions and interpretative philosophy) and comparative remedies available to afflicted citizens including class actions. Colombia and South Africa are selected because the constitutional courts in these emerging countries have recently been exuding a rare and patent streak in judicial activism. The comparative approach is used as an innovative contribution as it incorporates an important mutual learning component in view of identifying what constitutional norms and praxes are worth sharing.