Chapter 1. Introduction

The present Guide serves two purposes. First, it aims to reinforce the point that economic, social and cultural rights^[1] are fully subject to adjudication before judicial and quasi-judicial bodies and to show how such adjudication has been successfully pursued in numerous jurisdictions. To this end, the Guide presents an updated version of the ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study).^[2] It is thus heavily based on the earlier work of the ICJ but also includes recent jurisprudence in the area.^[3] Secondly, it not only updates the state of play, but also presents this information in a manner aimed to facilitate its use by legal practitioners working especially at the national level. In this perspective, the Guide adopts a more flexible electronic format that allows for easier updating and for the use of modules and excerpts, as required especially for training purposes. It makes the link to important external resources including case law databases. Alongside this flexibility and adaptability, the Guide can also be printed in the form of a coherent stand-alone publication.

In addition to the ICJ Justiciability Study, the Guide also draws on the ICJ’s “Commentary to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”^[4] and builds on lessons from the ICJ’s work in various countries. In particular, it has been informed by two processes, namely in Morocco and El Salvador, aimed at investigating and assessing access to justice and the availability and effectiveness of remedies for victims of ESC rights’ violations.^[5] Work on access to justice by the ICJ Programmes on Business and Human Rights and on Women’s Human Rights ^[6] was also of great value and inspiration in producing this present Guide.

Importantly, the Guide benefits from the input and insight of a group of legal practitioners from different countries and legal traditions, who have been consulted during the process of elaborating this Guide.

Progress in ESC rights adjudication

At the time, the ICJ Justiciability Study contributed substantially to the debate of the elaboration and adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).^[7] It was then necessary to dispel certain prejudices and misconceptions about ESC rights and their nature as legal and justiciable rights, and to show that the adjudication of economic, social and cultural rights was desirable, feasible and already being carried out by judicial and quasi-judicial bodies in all continents. This project was all the more important as certain States continued to resist acknowledging the justiciable nature of ESC rights when considering the creation of individual and inter-State communications, during the course of the intergovernmental negotiations on the OP-ICESCR.

The unanimous adoption (without a vote) by the UN General Assembly of the OP-ICESCR, on 10December 2008,^[8] ultimately marked a watershed moment in the recognition and acceptance of the justiciability of ESC rights. The Protocol entered into force on 5 May 2013, and is presently binding for the States that have become party to this instrument.^[9]

Today, it must be acknowledged that an important number of ESC rights cases have been adjudicated and that this trend continues. These cases emerge from jurisdictions in various countries and regions, and among diverse legal systems. It is also interesting to note that, although a large proportion of ESC rights jurisprudence has for a long time concerned labour rights, all ESC rights have been adjudicated in cases concerning both positive and negative obligations.

Undoubtedly, for victims of violations of ESC rights, recourse to judicial and quasi-judicial bodies is often a long, expensive and complex way to justice and redress. In order to be realized, ESC rights require robust public policies designed and implemented in accordance with human rights principles such as participation, transparency and accountability. However, judicial and quasi-judicial bodies can and do play a critical role in informing and shaping these policy decisions by clarifying the legal parameters within which they are to be conceived. Judicial and quasi-judicial bodies continue to develop case law that is indispensable to the realization of the rights of victims of violations worldwide.

Content of the Guide

To achieve its objectives, in the context of the realities mentioned above, the Guide is essentially structured following the main steps of a litigation process. It takes as its departing point the standards relevant to ESC rights under international law and, with a focus on domestic jurisdictions, looks at how judicial and quasi-judicial bodies throughout the world have explicitly or implicitly given effect to these standards. In doing so, the Guide goes beyond the traditional constitutional or conventional reviews by judicial or quasi-judicial bodies and explores the role that other courts and adjudicative bodies can play, in their respective areas of competence, to bring redress to rights-holders by addressing various elements of the normative content of ESC rights. It is based on the conviction that, even in non-common law countries in which case law does not necessarily serve as controlling authority, practitioners will be able to make use of the concepts and jurisprudence exposed, directly or by analogy, no matter where they operate.

Although addressed to both lawyers involved in bringing and judges in deciding cases on ESC rights, some parts of this Guide will be more useful to one audience than to the other depending on the focus of each part of the Guide. It is hoped, though, that the Guide as a whole will be of interest to all those who want to promote the use of legal action and judicial procedures to protect and enforce ESC rights in their domestic system and beyond.

To set the scene, Chapter 2, “ESC Rights under International Law and the Role of Courts”, provides in summary form certain basic information on ESC rights under international law, their justiciability and the right to an effective remedy in this context.

Chapter 3, “Initiating Judicial Proceedings: Making the Case”, presents issues that should be taken into consideration by legal practitioners and legal counsel before or while initiating legal action on behalf of the rights-holders they represent and advise.

Chapter 4, “Beyond Constitutional Remedies: Exploring Various Jurisdictions”, offers an overview of comparative law from various jurisdictions that might be further explored by practitioners. It looks at the relevance of different bodies of law, including civil and penal law, for ESC rights and how remedies in these areas can provide some kind of redress to victims and contribute to reparation in cases of violations of ESC rights.

Chapter 5, “Standards and Techniques of Review in Domestic Adjudication of ESC Rights”, provides examples of case law, examined according to various standards of review, used by judges who have had to decide whether ESC rights have been violated.

Chapter 6, “Remedies and Enforcement of Decisions”, discusses remedies and the issue of enforcement and implementation of judicial decisions.

Methods of presentation

In each chapter and section, the Guide summarizes the main lessons learned to date in the adjudication of ESC rights, from doctrinal to practical legal issues. Whenever relevant, it proposes references to useful resources and tools for practitioners at the national level who want to bring cases of alleged violations of ESC rights to judicial and quasi-judicial bodies.

The jurisprudence^[10] and the experiences provided in the Guide should be considered as examples and sources of inspiration. They do not in any way pretend to be exhaustive, nor to duplicate the valuable work done by other institutions that entertain and centralize case law databases that are referred to at the end of this Guide.^[11] Rather, they illustrate some of the main issues that lawyers and judges face when they have to litigate and adjudicate ESC rights. They also provide information on the manner in which practitioners, in various jurisdictions and in relation to various rights and legal issues at stake, have found ways to protect ESC rights.

Because the Guide adopts a flexible format, some references and cases appear in several parts of the document in order to illustrate various issues, such as particular standards of review or remedies provided. The chosen format and organization of the Guide aims to assist practitioners to access the information in a useful and easy manner.