Justiciability of Economical, Social and Cultural Rights: theories and challenges.

The justiciability of human rights is a concept deeply tied to the discourse of whether economical, social and cultural rights (ESC) can be enforced by judicial and quasi-judicial organs due to peculiar political elements and apparent vagueness they entail. In connection with ESC rights, justiciability- as an expression of the opportunity to bring forward a legal claim- calls into question whether domestic courts can actively participate in the development of better living standards promoted by international instruments such as ICESCR and the European Social Charter.
Unlike civil and political rights, ESC rights appear to have been designed not as individual rights but rather as existential standards to be achieved by States. The characteristics of ESC rights illustrate the difference between their normative character and that of civil and political rights, the latter being defined by a causal link between factual circumstances and legal consequences. ESC rights lack this substantial element as they are an expression of aspirations and aims rather than ‘’legal rights’’.
ESC rights are often regarded as positive, political and progressive whereas civil and political rights are often envisioned as negative, non-political and demanding immediate realization. It is thought that along with their severe political nature, ESC rights are less judiciable also due to the scarcity of domestic judicial legitimacy to intervene and challenge policy issues. Nevertheless, this generalization is unfortunate seeing that some States present an advanced level of domestic procedural protection of particular ESC rights while being retrograde about others. Furthermore,there are dichotomist scholars that argue that the distinction between ESC rights and political and civil rights derives from either the positive or negative obligations that they impose on States. This traditional segregation is defective due to the fact that modernly constructed human rights impose varying duties on States, both negative and/or positive. As the International Commission of Jurists declares “this challenge to the justiciability of ESC rights […] is based on a false distinction that overestimates the differences between civil and political rights and ESC rights.’’
A more conciliatory approach is presented in the General Comment nr. 9 of the CESCR that proposes different levels of State duties and also calls for a less rigid differentiation between ESC rights and civil and political rights.The justiciability of ESC rights is also connected to the notions of “indivisibility, interrelation and interdependence of human rights’’. If ESC rights and political and civil rights are claimed to be different sets of rules coexisting in international law under a different practical and political manifesto that should make us question the very essence of the indivisibility of human rights. The above-mentioned General Comment also states that putting ESC rights “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”.

A notorious example of commitment to the indivisibility of human rights via a conjunct regulation under the same treaty is the African Charter on Human and Peoples’ Rights that equalizes the value and protection of ESC rights and civil and political rights. The notion of justiciability appears to be at prima facie more relevant to ESC rights due to the amount of the existing contradictory literature. However, political and civil rights are extremely relevant as a comparator between the levels of enforcement the two allegedly separate sets of rules involve. If the argument is that ESC rights are less justiciable because they are vague or unspecific then we can easily ask ourselves why they are less worthy of mechanisms of specification. The lack of a comprehensible meaning of ESC rights derives from the fact that States have not put that much effort into developing their content as opposed to the continuing efforts of delimitation that civil and political rights enjoy. The apathy that States show towards formulating advanced ESC frameworks is mostly due to the budgetary and pecuniary elements that their realization demands.

A worth mentioning practical ideology illustrates that ESC rights are adjacent to civil and political rights. An example of a combined enforcement of the two categories of rights is the Olga Tellis case where the Supreme Court of India interpreted the right to life as encompassing a ‘’right to livelihood’’ and stated that an eviction from dwellings would amount to a violation of the right to life. Another instance would be the Ituango Massacres v. Colombia case where the Inter-American Court of Human Rights decided that forced evictions can tamper with the right to private and family life.
In terms of supranational justiciability, the ECtHR case law acknowledges the economical and social dimensions of the civil rights in the Convention but also points out that the realization of these rights is dependent on the ‘’financial reigning in the State in question’’. Furthermore, the same idea appears to be the standpoint of the European Committee of Social Rights (ECSR) as declared in International Federation of Human Rights Leagues (FIDH) v France (para.27). Regarding the progressive realization of rights, although article 2(1) of the ICESCR calls for the application of this principle to ESC rights that does not mean that certain rights can’t enjoy an immediate realization. The CESCR holds that while some rights should be progressively realized in terms of a timeline and distribution of resources that is left to the appreciation of the States, others like the prohibition of discrimination can be immediately justiciable in the sense of Principle 8 of the Limburg Principles. In some instances, the right to housing has been enshrined to include a negative obligation for States to refrain from evictions without due procedural justifications and guarantees. For example, The Supreme Court of Bangladesh in the Ain o Salish Kendra case established that the government must give notice and comply with procedural and substantive rules when carrying out evictions thus proving that ESC rights can be immediately realized. This separation is fundamental to prove that certain rights can be subjected to ‘’progressive realization and at the same time justiciable’’and to refute the conception that the unitary content of ESC rights depends on political strategies.

As proven above, domestic justiciability is fundamental for a proper realization of ESC rights. Nevertheless, international justiciability should allow individuals to ask supranational bodies to decide upon a possible violation of their rights when domestic organs or legislature supply a defective remedy. As of May 5th 2013, the Optional Protocol to the ICESCR came into force. This was the moment of inception of the possibility of individual complaints to be examined by the CESCR. The criteria by which the Committee gains access to the cases – found in articles 1 to 4 – are related to the exhaustion of domestic remedies and the observance of a specific timeline. The first criterion can be waved in case of prolonged domestic procedures. Furthermore, the complaint must be based on a ‘’clear disadvantage’’, otherwise it can be rejected by the Committee. This provision seems to be inspired by Article 12 of Protocol No. 14 to the ECHR with the clarification that in the case of the CESCR, this rule of admissibility is discretionary. Even if the OP has only 12 State parties, it represents a lucid and long expected advancement of international justiciability of ESC rights.
As for the European system, an individual complaint is yet impossible to lodge with the ECSR that only admits collective complaints formulated by trade unions, NGOs and organizations. The level of European justiciability seems to be reduced compared to the one available for civil rights, considering that in the case of an ESC right an individual has to bypass his access to remedies through an admissible association. A strengthening mechanism that would make ESC rights less dependent and complementary to civil rights is needed, along with the general necessity in international law to specify the content of these rights and restrict the margin of appreciation of States in their implementation.


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