Chapter 5. Standards and techniques of review in domestic adjudication of ESC rights

This chapter surveys a number of the critical concrete contributions made by judicial bodies that have served to define and refine the scope and content of ESC rights. The examples provided are clustered according to specific techniques and “constitutional standards of review” that judicial bodies around the world have used to protect and enforce the guarantees pertaining to these rights. The chapter also provides the opportunity to update the case law examples that the ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study) already provided.

As the ICJ Justiciability Study explained, “when judges examine an allegation that a right has been violated, they do not necessarily focus on the determination of a specific obligation to be imposed on the State or on an individual. Judges usually assess the course of action undertaken by the duty-bearer in terms of legal standards such as “reasonableness”, “proportionality”, “adequacy”, “appropriateness” or “progression”. Such standards are not unknown to courts when they carry out judicial reviews of other types of decisions taken by the political branches. In deciding whether an individual person’s right has been satisfied judges do not need to supplant political branches in designing the most appropriate public policies to satisfy a right. Rather, they examine the effectiveness of the measures chosen to fulfil that right. Although the State’s margin of discretion to select appropriate measures is broad, certain aspects of policy-making or implementation are likely to be reviewed by the courts through the application of a “reasonableness” or similar standard. For example, as will be shown later, when reviewing the State’s compliance with its obligations courts may consider issues such as the exclusion of groups to be granted special protection, the lack of coverage of minimum needs defined by the content of the right, or the adoption of deliberately retrogressive measures.”^[239]

The categories of standards used in this chapter are intended to illustrate the cases under discussion. In many cases, especially those entailing complex facts and points of law, several standards or principles will be used conjunctively.