The Justiciability of Social and Economic Rights: An Updated Appraisal (original) (raw)

Some Recent Developments on Justiciability of Economic, Social & Cultural Rights.

ESR Review, 2019

I read with interest the thoughtful piece by Ayemere Okojie and Peace O. Folorunsho entitled, ‘Some recent developments on justiciability of economic, social and cultural rights’ in ESR Review (2017). It traces the origin and development of the concept of justiciability in the context of the seeming rivalry between civil and political rights (C&P rights) and economic, social and cultural rights (ESC rights). In the course of this, it cites various arguments against the justiciability of ESC rights, including that they are vague and framed as obligations rather than as rights. The article concludes, nonetheless, that these arguments apply equally to C&P rights and that ESC rights therefore ought to be justiciable to the extent that states have the capacity apply ‘political will’ across the two generations of rights. It is not clear to me what applying ‘political will’ entails, but I can glean from the concluding remarks that the authors probably want states to ‘enact laws that make ESCR justiciable’. They also recommend ‘judicial activism’ after the manner of South African and Indian courts. As important as these recommendations are, I suspect that, to enhance the standard of living of the poor, we need to do more than transform ESCR into justiciable rights and encourage judges to be activist.

(Re) Positioning Socio-Economic Rights as Real Rights: A Response to Sceptics

SSRN Electronic Journal, 2015

In place of a unitary international bill of rights, there are two international covenants. This has given rise to the misleading impression that some rights may be less important than other rights and that certain rights are justiciable while others are statements of political principle. This paper tries to respond to the critics of socioeconomic rights by (re)-addressing the concerns raised and reasserting the indivisibility and interdependence of human rights across regions and societies. Specifically, this paper addresses issues of justiciability, lack of minimum standards, resource constraint, monitoring and implementation.

Are Social Rights "Rights"? – A Reply to C Barnard

European Centre of Expertise Conference, 2019

A reply to C Barnard, paper presented at conference The Charter of Fundamental Rights from an EU Labour Law Perspective, co-organised by the European Commission and European Centre of Expertise (Brussels, May 2019)

Legal Enforcement of Social Rights: Enabling Conditions and Impact Assessment

2009

This article commends the concise and useful analysis of courts and the legal enforcement of economic, social and cultural rights given in Christian Courtis’ book, Courts and the Legal Enforcement of Economic, Social and Cultural Rights: Comparative Experiences of Justiciability. Yet, in order to complete the picture, a broader analysis of the enabling conditions for litigation and of the social and political impact of judicial activity in this field is required. There are a number of reasons why attempts to litigate economic, social and cultural rights may not result in judicial enforcement and why, even if enforcement is achieved in formal terms, this may not necessarily protect or fulfill the right in practice. Even when compliance is secured in terms of individuals, this may be insignificant or even detrimental to the realisation of the right from a societal perspective. While not dismissing a constructive role for courts in the enforcement of economic, social and cultural right...

Justiciability of Economic, Social and Cultural Rights

Human Rights are natural rights that nature has given to all human beings and are inseparable, undividable and inalienable from human beings. They are vital, necessary and indispensable to a modern society, which without them would be unable to function and cannot be developed. From another perspective, " human rights are indivisible rights on individuals, based on their nature as human beings; they protect these potential attributes and holdings that are essential for a worthy life of human beings ". Human Rights in general and especially ESCR would be just illusory if they wouldn't be justiciable. In relation to civil and political rights, it is generally taken for granted that judicial remedies for violations are essential. Regrettably, the contrary assumption is too often made in relation to ESCR. This discrepancy is not warranted either by the nature of the rights or by the relevant Covenant provisions 6 , but is rather a result of states' attempts to justify their failure to perform their obligations under ICESCR.