Key concepts on ESCRs - Can economic, social and cultural rights be litigated at courts?
Yes. Decisions of courts in countries from all regions of the world covering all economic, social and cultural rights demonstrate that these rights can be subject to judicial enforcement. Nonetheless, the justiciability of economic, social and cultural rights has traditionally been questioned for a number of reasons. First, economic, social and cultural rights have been seen by some as being too “vaguely worded” to allow judges to justify decisions on whether violations have occurred. While adjudicating such rights may raise questions of what constitutes, for example, hunger, adequate housing, or a fair wage, judges have already dealt ably with questions of what constitutes torture, a fair trial or arbitrary or unlawful interference with privacy. Filling in the gaps in legislation is a clear function of the judiciary, not only in human rights law but in any area of law.
Second, the realization of economic, social and cultural rights depends heavily on Government policies. Yet, reviewing Government policies in this area, as in any other, to ensure that they are consistent with constitutional principles and obligations under international human rights law is clearly a function of the judiciary. While the role of the judiciary in reviewing Government policy may vary from country to country, policy review is not policymaking. The judiciary is therefore not overstepping its constitutional role by taking decisions on economic, social and cultural rights.
Third, and linked to the previous point, some have questioned whether it is possible for a court to assess the progressive realization of economic, social and cultural rights. Monitoring progressive realization can rely on several mechanisms, including the courts. In South Africa, courts have assessed whether the State is meeting its obligations towards progressive realization by considering whether the steps taken by the Government are reasonable. A failure to take into account the needs of the most vulnerable in, for instance, a housing policy would suggest that the policy would not meet the test of reasonableness.
Judicial enforcement of human rights is fundamental. A right without a remedy raises questions of whether it is in fact a right at all. This is not to say that judicial enforcement is the only, or indeed the best, way of protecting economic, social and cultural rights. However, judicial enforcement has a clear role in developing our understanding of these rights, in affording remedies in cases of clear violations and in providing decisions on test cases which can lead to systematic institutional change to prevent violations of rights in the future.
- Protection of social rights in the framework of the United Nations: the new Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, L. Salamedo Teixidó, Thomson Reuters, 2012 (in Spanish).
- Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability, Report of International Commission of Jurists, 2008.
- Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, M. Langford ed., Cambridge University Press, 2008. The book offers an overview of issues related to the justiciability of ESCR, the specific national experiences of South Africa, India, South Asia, Colombia, Argentina, Brazil, Venezuela, the United States, Hungary, France, the United Kingdom and Ireland, and examples and developments of different international and regional human rights mechanisms. It provides an important input for the implementation of the Optional Protocol to the ICESCR.
- ESCR-Net provides online database on case law on ESCR. Its website also provides Toolkit for Action for the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.