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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.
This dissertation is an interpretive case study of the claims and decisions of three legal cases that were brought to the courts by Indigenous peoples with respect to their constitutional rights. The first is the Delgamuukw case in Canada; the second is the Nibutani Dam case in Japan; and the third is the Zirahuén case in Mexico. Even though, in these three cases, the courts seem to be sympathetic to the pleadings of the Indigenous plaintiffs, they all dismissed, rejected, or left their claims unresolved on procedural grounds. The focus of the study are the procedural standards used by the courts for the review of the plaintiffs’ claims in the three cases and focuses on four themes: 1) the paucity of suitable causes of action to challenge the interventions of the state and third parties by Indigenous communities; 2) the difficulties of proof; 3) the inadequacy of remedies corresponding to the rights established in national and international laws; and 4) legal language and uncertainty regarding the content and reach of the rights of Indigenous peoples in the three jurisdictions. The study also looks at the rationality behind such standards and the courts’ concerns with fairness, coherence and autonomy. This study indicates that the Indigenous plaintiffs’ constitutional claims were extremely difficult to frame within the causes of action available for them. The actions were extremely difficult to use either because there were no causes of action to protect their rights at a proper moment, the causes of action disregarded crucial characteristics of the legal and material realities of the communities, or the causes of action lacked corresponding remedies. These difficulties suggest that there was a redundant tension between the notion of sovereignty that courts used in their decisions and the rights of Indigenous peoples. The analysis also suggests that the plaintiffs’ constitutional rights are conditional to an issue of constitutional power that needs to be resolved.