Justiciability of
Social and Economic
Rights
Provisions of Justiciability in the ICESCR
• Indeed, the role of courts in adjudicating human rights is
perhaps the most controversial aspects of modern human
rights jurisprudence.
• As the Committee on Economic, Social and Cultural Rights
ruefully remarked:
In relation to civil and political rights, it is generally taken for
granted that judicial remedies for violations are essential.
Regrettably, the contrary presumption is frequently made in
relation to socio-economic rights.
• However, at the domestic level, a rich jurisprudence in the area of
ESCR is emerging. This is encouraged by the Committee on Economic,
Social and Cultural Rights.
• In a General Comment it adopted in 1998, the Committee made clear
its expectation that the States parties to the Covenant should give
effect to this instrument in the domestic legal order. It stated:
The Covenant norms must be recognized in appropriate ways within the
domestic legal order, appropriate means of redress, or remedies, must
be available to any aggrieved individual or group, and appropriate
means of ensuring governmental accountability must be put in place.
• However, there exists a notable difference in this regard
between the ICCPR, which requires from States that they
'develop the possibilities of judicial remedy' under Article 2
(3) (b), and the ICESCR, which is silent on this issue.
• The Committee takes the view that the requirement to
ensure access to effective remedies follows from the duty of
States move towards the full realization of the rights
recognized in the Covenant 'by all appropriate means’.
• Article 1: a State that would entirely exclude the competence of courts
to adjudicate claims relying on the Covenant, the Committee suggests,
would not only be seeking to justify a failure to comply with its
international obligations by invoking provisions from its domestic
legal order-which obviously cannot be tolerated, as confirmed by
Article 27 of Vienna Convention on the Law of Treaties (1969).
• It would also be failing to act in the spirit of the UDHR, under Article
8 of which refers to effective remedies for violations of human rights
without making any distinction between different categories of rights.
• Turning to the jurisprudence itself, we might note that one of its first
'achievement' has been that its cumulative weight has helped overturn two
long-standing philosophical objections to the justiciability of ESCR.
• These objections are well expressed by E. W. Vierdag ("The Legal Nature of the
Rights Granted by the International Covenant on Economic, Social and Cultural Rights",
Netherlands Yearbook of International Law (1978), who claimed, in a somewhat
circular fashion, that:
1. ESCR was not legal rights since they were not inherently justiciable; and
2. ESCR was not justiciable since they involve issues of policy, not law.
• In setting out thesis, he provided the typical and
ubiquitous example:
'implementation of these provisions of the ICESCR
is a political matter, not a matter of law' since a
Court must engage in prioritisation of resources by
'putting a person either in or out of a job, a house
or school.'
• These conceptual criticisms now carry less weight.
• Commentators such as Dennis and Stewart concede that justiciability is
possible even if they are not personally enamoured of it.
• This is because many judges have dismissed the first argument on the basis
that the inclusion of ESCR in constitutional bills of rights and international law
means, ipso facto, that the rights are legal.
• As one court stated:
Socio-economic rights are expressly included in the Bill of Rights; they cannot be
said to exist on paper only … and the courts are constitutionally bound to ensure
that they are protected and fulfilled.
• The South African Constitutional Court thus invoked a
classic common law gradualist approach and stated in
Grootboom (2000):
The question is therefore not whether socio-economic
rights are justiciable under our Constitution, but how
to enforce them in a given case.
• Two other philosophical and legal objections are more persistent and arguably
provide the basis for determining the limits or the shape of ESCR adjudication.
• The first is the contention that adjudication is democratically illegitimate, a
claim not necessarily confined to socio-economic rights.
• Judicial review of human rights, particularly the striking down of legislation
remains controversial in some quarters.
• This concern with the implications for the doctrine of separation of powers,
one species of the democratic concern, led one court to state that 'if judges
were to become involved in such an enterprise, designing the details of policy
in individual cases or in general and ranking some areas of policy in priority to
others, they would step beyond their appointed role.
• The second persistent objection is institutional.
• Adjudicators are not suited to the task since not only do they lack the
requisite expertise and information on the economic and social question but
they are not in a position to resolve the competing policy considerations and
consequences that would flow from their decisions.
• These are, of course, real constraints. However, it is arguable that they are
largely relative and not absolute.
• Every area of law requires some level of specialist expertise and adjudicatory
institutions have responded to the challenge of information by using specialist
bodies and expert witnesses as well as accepting submissions from amicus
curiae interventions.
• Scott and Macklem thus treat this problem in a positive light
arguing that social rights adjudication plays a valuable
function in bringing forth information into the public domain
that they may not be traditionally available to legislature-
concrete violations of rights, particularly of marginalised
groups.
• Horowitz argues that the force of this argument is partly
blunted by the fact that courts tended to be backward-looking
as well as, in terms of using, precedents as existing evidence.
• The seemingly real challenge is the 'polycentric'
dilemma as termed by Lon Fuller, who argued that the
judiciary cannot and should not deal with situations in
which there are complex repercussions beyond the
parties and factual situation before the courts.
• Critics of social rights adjudication typically fear that a
decision providing more funding to housing, for
example, could imperil funding for health or the
police.
• The problem with this argument is that almost every
area of adjudication involves polycentric questions.
• However, this objection has led to judicial innovation
as opposed to either activism or resignation.
• The first is to keep close clearly defined legal principles
such as reasonableness or to adopt procedure and
remedies.
• For example, the order of the Canadian Supreme Court
in Eldridge v British Columbia (1997), which involved
the provision of interpretive services to deaf patients
in hospitals, provided as:
A declaration, as opposed to some kind of injunctive
relief, is the appropriate remedy in this case because
there are myriad options available to the government
that may rectify the unconstitutionality of the current
system. It is this Court's role to dictate how this is to be
accomplished.