Courts and the Legal Enforcement of Economic, Social and Cultural Rights - Comparative Experiences of Justiciability

Summary: This report assesses the main arguments against the justiciability of economic, social and
cultural rights, and shows how these rights can be adjudicated, that adjudication is desir-
able, and practiced in many courts throughout the world.
The case law examined provides a comparative tool from which to draw ideas and argue
cases regarding economic, social and cultural rights.

The International Commission of Jurists (ICJ) has consistently recognized and advo-
cated that economic, social and cultural rights (ESC rights) should be taken as
seriously as civil and political rights. ESC rights have been part of the language of
international human rights since at least the adoption of the Universal Declaration of
Human Rights (UDHR) in 1948. Yet, compared to civil and political rights, there has
been considerably less attention placed on the need to develop the content of ESC
rights and protection mechanisms to enforce them. These gaps in the international
human rights system, this report will argue, came about for political and not for legal
reasons. To a great extent, the cause of these gaps was the prominence accorded by
Western countries to civil and political rights, in the context of the cold war divide. As
a consequence, the notion of the justiciability of ESC rights has been neglected and
largely ignored. The term “justiciability” means that people who claim to be victims
of violations of these rights are able to file a complaint before an independent and
impartial body, to request adequate remedies if a violation has been found to have
occurred or to be likely to occur, and to have any remedy enforced.

Bridging the gap between the justiciability of civil and political rights and that of
ESC rights is key if both sets of rights are to be considered on an equal footing. This
report will demonstrate that:
• ECS rights can be adjudicated
• adjudication is desirable, and
• adjudication is already put into practice, to varying degrees, in many courts
throughout the world.

The report analyzes and counters some of the traditional objections to the justicia-
bility of ESC rights. Some of these objections have been debated in the academic
field. They also inform the position of States in various fora, including the present
debate in the United Nations (UN) about the adoption of an Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights (Optional Protocol
to the ICESCR). This will establish a complaints procedure enabling these rights to
be adjudicated by an international committee of experts. These objections also
have consequences at the domestic level, as they inhibit the use of litigation where
ESC rights have been violated and thus leave the promotion and protection of these
rights almost exclusively to political, rather than judicial, bodies.

This report refers to a wide variety of case law, showing how courts and judges
around the world have adjudicated ESC rights, despite the alleged impediments to
this. The case law highlighted in this report has been selected to:
• represent a wide variety of ESC rights, including labour-related rights, the
right to health, the right to housing, the right to education, the right to food
and cultural rights. By examining a broad range of rights this report aims to
show that the blanket assumption that ESC rights in general are not justi-
ciable is false, and that numerous examples can be shown to contradict that
assumption, regardless of the particular right at stake; and
• represent different regions in the world: cases from different high level
domestic courts, regional human rights courts, and international monitoring
bodies competent to review individual, group or collective petitions.

The case law highlighted in this report includes both judicial decisions (i.e. deci-
sions of domestic and international courts) and quasi-judicial decisions (such as
UN treaty bodies).

While judicial and quasi-judicial decisions are different, both procedurally and in
terms of the legal value of their final outcome, in the context of this report they share
an important common feature: they demonstrate that ESC rights can constitute the
basis for judging whether a State has conformed with a legal duty.