The ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” (hereafter the ICJ Justiciability Study), draws attention to some of the main issues and challenges around provision of and access to effective remedies and the enforcement of judicial decisions. It notes that “[D]evising and implementing remedies in complex litigation may shift the weight of the procedure from the hearing to the remedial phase. But traditional procedures assume that the trial phase is the most important – and thus, devote most of the procedural regulations to this phase. The remedial phase is only ancillary, so little guidance is offered on adequate procedures to devise remedies and to monitor their implementation.”
The right to an effective remedy is an integral part of international human rights law. For a remedy to be effective it must be prompt, accessible, before an in-dependent legal authority and capable of leading to the cessation of the violation and reparation for any injury.
There is no doubt an on-going doctrinal debate, encompassing objections raised by certain governments, as to the competency of courts to prescribe particular types of remedies in ESC rights cases. This chapter, while not venturing into the conceptual undergrowth, provides several examples from diverse jurisdictions to illustrate how judicial and quasi-judicial bodies have dealt with the granting of remedies in specific cases.
- 262. ICJ publication “Courts and the Legal Enforcement of Economic, Social and Cultural Rights – Comparative Experiences of Justiciability” [hereinafter the ICJ Justiciability Study], p. 94.↵
- 263. See ICJ Legal Commentary to the ICJ Geneva Declaration, p. 24 and p. 182, accessible at: https://www.icj.org/legal-commentary-to-the-icj-geneva-declaration-upholding-the-rule-of-law-and-the-role-of-judges-lawyers-in-times-of-crisis/ and ICJ Practitioners Guide No. 2 on the right to a remedy and to Reparation for gross human rights violations, pp. 46-49, accessible (in English, French, Spanish, Arabic, Thai) at: https://www.icj.org/the-right-to-a-remedy-and-to-reparation-for-gross-human-rights-violations/ ↵
- 264. ICJ Justiciability Study, pp. 80-88.↵