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4.4 Administrative courts

Administrative law typically regulates aspects of conduct and operations of local and national/federal governments, including agencies within Ministries or departments. In that regard, administrative law is of particular importance to ESC rights, as government agencies dealing with such issues as labour, housing, health and social security. ESC rights violations typically occur through an administrative act or an omission.

Administrative law covers key issues for ESC rights including:

  • decisions concerning social security and assistance benefits, including food aid;
  • regulation of building licenses for housing and industrial activities;
  • decisions concerning licenses of exploitation of natural resources;
  • administration of public health care through public hospitals and public or universal medical insurance schemes or the regulation of private health services;
  • administration or regulation of public education; and
  • regulation of public utilities, including water, means of heating and electrical services.

Depending on the country and system under consideration, the review of administrative law and acts may, at first instance be undertaken by administrative commissions, courts, or other bodies. In other systems, the function is undertaken by an independent and specialized institutional branch of the judiciary with their own procedural arrangements.[215] These bodies can thus play an important role for ESC rights adjudication. However, the procedures followed in certain administrative courts may present some disadvantages because of the length of the procedure or the limitations of damages and remedies that can be awarded.

Administrative courts have often had to address important ESC rights cases. For example, administrative tribunals of first instance and appeal have condemned, on the basis of the explicit need to protect the right to health as guaranteed by the ICESCR, the failure of the State to provide and cover the costs of the vital dialysis needed by a woman with kidney disease, which she could not afford.[216]

Footnotes    (↵ returns to text)

  1. 215. This is particularly true in continental civil law countries such as Belgium, France, Germany, Switzerland or Sweden.
  2. 216. Tribunal Administratif d’Agadir (2004), Decision 12-8-2005 (763); confirmed by Decision 323-6-2007-1 (125), Cour d’Appel de Marrakech (2007). Although that decision was reversed by the Cour de Cassation, it shows the active role that administrative jurisdictions can play in the protection of constitutional or conventional rights.