The focus of the present Guide is adjudication of ESC rights at the domestic level, supported by examples from regional and international judicial and quasi-judicial bodies. Undoubtedly, in cases of violations of ESC rights, the notionally preferable avenue for exercising the internationally guaranteed right to a remedy is through legal means that are constitutionally grounded. However, taking into account that the constitutional guarantee of ESC rights remains limited or non-existent in many national constitutions, and that constitutional justice may not be easily accessible to rights-holders everywhere, it is worthwhile to explore other avenues for justice. Adopting this pragmatic approach, the present chapter explores access to justice through various jurisdictions and bodies of law. These may be more accessible and, in specific instances, more effective to bring victims a timely, even if only partial, redress.
Civil courts and even administrative bodies often contribute to constitutional review and protection of ESC rights through the domestic specific procedures enabling referral of questions to higher/constitutional. Many claims that are relevant for ESC rights and even emblematic decisions are initiated as civil and administrative matters, as shown below.
- 181. See Chapter 2, section II.2.↵
- 182. As a possible model of base line study and assessment of domestic remedies and avenues to seek justice and redress see the ICJ Access to Justice studies on Access to Justice for social rights in Morocco accessible (in French and Arabic) at: https://www.icj.org/new-icj-study-on-access-to-justice-for-economic-social-and-cultural-rights-in-morocco/ and on Access to Justice for social rights in El Salvador accessible (in Spanish) at: https://www.icj.org/new-icj-study-analyses-obstacles-preventing-salvadorians-to-access-justice-effectively/↵
- 183 See, for example, Giudizio di legittimità costituzionale in via incidentale in Italy (article 134 of the Italian Constitution); Questions prioritaires de constitutionalité in France (article 61-1 of the French Constitution); Exception d’inconstitutionalité (article 133 of the Constitution of Morocco).↵