2.1 Progress towards a global recognition of the justiciability of ESC rights

The justiciability of ESC rights

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.^[12]

The question as to the justiciability of ESC rights has been the subject of a multitude of academic, institutional and advocacy publications.

Without repeating in full the analysis contained within such publications, it is important to highlight the prejudices and main objections against the judicial enforcement of ESC rights in order to overcome them. These objections have had consequences both at domestic and international levels. The negative effect at both levels, in a mutually reinforcing manner, has effectively precluded many judicial and quasi-judicial bodies from playing their dual role in the protection of ESC rights and in ensuring that victims of all human rights violations are guaranteed access to effective remedies.

As explained in the ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study), these arguments have served to inhibit recourse to litigation at the domestic level where ESC rights have been violated, thus leaving the protection of these rights almost exclusively to political, rather than judicial, bodies.^[13]

At the international level, prejudices and obstacles had for a number of years prevented the establishment of a communication procedure before the Committee on Economic, Social and Cultural Rights in the form of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR).

The two general international human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), codifying and adding to many of the provisions of the Universal Declaration of Human Rights (UDHR), were both adopted in 1966. The ICCPR benefitted from the concurrent adoption of an individual communication (complaint) mechanism to which 115 States are currently parties.^[14] In addition, the other major human rights treaties also came with communication procedures, as opt-in provisions or as separate optional protocols.^[15] Nevertheless, it was not until 10 December 2008 that a similar protection mechanism was finally adopted under the OP-ICESCR. Only on 5 May 2013, three months after the deposit of the 10^th instrument of ratification to the Optional Protocol, did the new OP enter into force. This instrument finally provides for remedies at the international level to victims of violations of economic, social and cultural rights. It establishes a mechanism that enables the UN Committee on Economic, Social and Cultural Rights (CESCR) to examine complaints and initiate inquiries in cases of alleged violations of these rights in the States parties to the OP-ICESCR whenever victims are not able to obtain justice at the national level.

In addition, on 14 April 2014, the third Optional Protocol on a communication procedure for the Convention on the Rights of Child (OP- ICRC), came into force, following its adoption on 19 December 2011.^[16] A significant number of provisions of the Convention on the Rights of the Child (ICRC)^[17] relate to ESC rights, and this mechanism will no doubt contribute to ensuring the right to a remedy and the development of international jurisprudence with respect to persons whose ESC rights were violated at the time they were under 18 years of age.

The new avenue for justice created by the OP to the ICESCR will undoubtedly have an influence on the availability and effectiveness of domestic remedies, as well as on the development of jurisprudence and standards on ESC rights at all levels: national, regional and global.

Litigating ESC rights

As is the case with any human right, litigation neither can nor should be considered as the only means to ensure States’ compliance with their duties relating to ESC rights. Rather, it is typically a means of last resort. Courts and other adjudicative bodies alone cannot supervise the design and implementation of public laws and policies in areas such as health, work, food, housing or education. The creation or strengthening of such policies requires public debate and action by the executive and legislative branches of the State. This is similarly true for civil and political rights, which similarly require implementing legislation, policies and the availability of services and infrastructure. While judicial action is not the exclusive means of implementation and redress, the role of the courts in the protection of ESC rights is fundamental. As highlighted in other parts of the Guide, litigation is thus not only an instrument to ensure compliance with ESC rights but also to guarantee the realization of the right to an effective remedy.

Excerpts from the ICJ Justiciability Study

Litigation is only one of several means to enforce and implement ESC rights, as is it with civil and political rights. The belief that ESC rights should not be granted any kind of judicial or quasi-judicial protection, and should be left to the discretion of political branches of the State, is one of the main reasons why ESC rights have been devalued within the legal hierarchy. While courts and litigation should not be seen as the only means for realizing ESC rights the absence of an effective method of recognizing justiciability for these rights:

• narrows the range of mechanisms available for victims of rights violations to receive remedies and reparations;
• weakens the accountability of States;
• undermines deterrence; and
• fosters impunity for violations.^[18]

Furthermore, completely excluding courts and tribunals from considering violations of ESC rights is incompatible with the idea that “an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments are essential to the full and non-discriminatory realization of human rights”.^[19]

Dismantling prejudices against the justiciability of ESC rights

The prejudices and misconceptions that have long discouraged judicial and quasi-judicial bodies from playing an active role in the protection of ESC rights in cases of violations, relate both to the nature of these rights (and the nature of corresponding State obligations) and to the ability and legitimacy of judicial and quasi-judicial bodies to adjudicate them.^[20] The following part of this chapter discusses some of the main issues concerning the nature of ESC rights. Matters concerning the capabilities of judicial and quasi-judicial bodies to adjudicate cases concerning ESC rights, as well as their real or perceived legitimacy to do so, will be addressed in subsequent chapters of the Guide, in which an array of case law and arguments will be presented to show how judicial and quasi-judicial bodies have found their way around purported obstacles to the justiciability of ESC rights.

The ICJ Justiciability Study describes the commonly aired objections against the justiciability of ESC rights that are based on the perceived nature of these rights and the attendant obligations of States. The following are excerpts from the Study, aimed at refuting both the contention that ESC rights impose only positive obligations on States, and are thus costly, and that ESC rights are too vague to be the subject of judicial review.

Excerpts from ICJ Justiciability Study

Those who argue that ESC rights are not justiciable tend to assume that the content of these rights and obligations they impose are all very similar. Yet, a review of any accepted list of ESC rights suggests the opposite; the obligations imposed by ESC rights work in a number of different ways. These include:

• providing freedoms
• imposing obligations on the State regarding third parties
• imposing obligations on the State to adopt measures or to achieve a particular result, among other examples.^[21]

In many respects, therefore, these rights must be approached in exactly the same way as civil and political rights as set out in regional and international law instruments. The civil and political rights set out in such conventions establish an equally wide variety of obligations, guaranteeing freedoms for individuals, prohibiting certain actions by States, imposing obligations regarding third parties, as well as duties to adopt legislative and other measures, or duties to provide access to services or institutions.

This point also sheds some light on a further objection to the justiciability of ESC rights: that ESC rights are frequently equated with the provision of services, money or in-kind benefits. Yet, civil and political rights may also encompass similar aspects, such as access to services or to payments, which has never been used to deny the justiciability of civil and political rights in general. That being said, the idea that duties to provide services, money or in-kind benefits are incompatible with adjudication is also misleading. Even if elements of certain ESC rights are less easy to adjudicate, this is not a reason to reject the justiciability of ESC rights as a whole.

The Committee on Economic, Social and Cultural Rights (CESCR) has summarized some of these ideas in its General Comment Nº 9:

“In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to economic, social and cultural rights. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions. The Committee has already made clear that it considers many of the provisions in the Covenant to be capable of immediate implementation….While the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions. It is sometimes suggested that matters involving the allocation of resources should be left to the political authorities rather than the courts. While the respective competences of the various branches of government must be respected, it is appropriate to acknowledge that courts are generally already involved in a considerable range of matters, which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent. It would also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and disadvantaged groups in society.”^[22]

Another set of arguments against the justiciability of ESC rights asserts that they are so vague or uncertain in character that their content cannot be adequately defined. Consequently, it is said, such rights are impossible to adjudicate. According to this view, while civil and political rights provide clear guidance on what is required in order to implement them, ESC rights only set out aspirational and political goals. The content of ESC rights is supposedly variable and devoid of the certainty required for adjudication. It is frequently said, for example, that rights such as the “right to health” or the “right to housing” have no clear meaning, and that they offer no obvious standard by which one can determine whether an act or omission conforms to the right or diverges from it, i.e. whether an act or omission fulfils the right or violates it.

A lack of specificity regarding the exact content of ESC rights, and therefore the legal obligations that stem from them, would certainly seriously impede their judicial enforcement. Without clear requirements for the content and scope of a right, combined with a failure to identify rights-holders and duty-bearers, judicial enforcement would be difficult. The process of judicial decision-making needs a relatively clear “rule of judgment” which can be used to assess compliance or non-compliance with certain obligations. Without this “rule of judgment”, it seems impossible to differentiate between adjudication and law making.

However, the question of content and scope of a right is not a problem exclusively related to ESC rights. The determination of the content of every right, regardless of whether it is classified as “civil”, “political”, “social”, “economic” or “cultural”, is vulnerable to being labeled as insufficiently precise. This is because many legal rules are expressed in broad terms and, to a certain extent unavoidably, general wording.^[23] Thus, “classic” rights such as the right to property, freedom of expression, equal treatment or due process face this hurdle to the same extent as ESC rights. Yet, this has never led to the conclusion that these “classic” rights are not rights, or that they are not judicially enforceable. On the contrary, it has resulted in ongoing efforts to specify the content and limits of these rights, through a series of mechanisms aimed at defining their meaning (for instance, the development of statutory lawmaking, administrative regulation, case law and jurisprudence).^[24]

In identifying the scope of ESC rights and their content, the ICJ set out the following principles in the ICJ Bangalore Declaration and Plan of Action:

“Specifying those aspects of economic, social and cultural rights which are more readily susceptible to legal enforcements requires legal skills and imagination. It is necessary to define legal obligations with precision, to define clearly what constitutes a violation, to specify the conditions to be taken as complaints, to develop strategies for dealing with abuses and failures, and to provide legal vehicles, in appropriate cases, for securing the attainment of the objectives deemed desirable.”^[25]

Paradoxically, the consequence of this long-standing notion that ESC rights are non-enforceable has been an absence of any effort on the part of the judiciary in many countries to define principles for their construction. Due to the purely rhetorical value ascribed to these rights, and to the lack of attention paid to their interpretation by the judiciary and legal academics, fewer concepts have been developed that would help to understand rights such as the right to education, the right to an adequate standard of health, the right to adequate housing or the right to food. However, the lack of practical elaboration of many of these rights does not justify the claim that because of some essential or hidden trait, ESC rights, as a whole category, cannot be defined at all. Critics claim that the content of ESC rights cannot be defined, so little effort has been invested to define their content. The lack of practical elaboration is then used to argue that ESC rights are not justiciable.

As will be shown throughout this Guide, and more specifically in Chapters 4 and 5, the past deficit of jurisprudence in this area has created difficulties in ESC rights adjudication. Nevertheless, a growing body of more recent domestic case law is now offering better criteria to further specify the content of ESC rights.