The provisions for the right to a remedy cited above (see Box 11) refer primarily to civil and political rights, whereas most treaties relating to economic, social and cultural rights – such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Social Charter – contain no similar provisions. Despite this, violations of economic, social and cultural rights are increasingly adjudicated before domestic and regional courts, as well as United Nations treaty bodies. Indeed, arguments that economic, social and cultural rights are too vague to be adjudicated, or involve policy decisions better left to political authorities than to the courts, are not convincing. All human rights that entail a positive obligation to fulfil necessarily require policy decisions by State officials. For example, the capacity of a justice system to fulfil the right to a fair trial within a reasonable time depends on policy decisions, including the allocation of necessary resources.
In the same way that violations of civil and political rights can be adjudicated by courts, so too can the violations of many economic, social and cultural rights. For example, courts can decide whether States have fulfilled their positive obligations to ensure access to essential primary medical care in accordance with the core content of the right to the enjoyment of the highest attainable standard of physical and mental health. Courts can also adjudicate whether States have complied with their duties to respect economic, social and cultural rights and other immediate duties arising therefrom, including the prohibition of discrimination in guaranteeing the rights enshrined in the ICESCR.
At a domestic level, economic, social and cultural rights are not always entrenched in national constitutions or laws. However, as demonstrated by the South African and Indian constitutional courts in particular, national courts are increasingly adjudicating the rights to health, education, water and adequate housing (for details with regard to South Africa see Chapter 13). Another important example is the Human Rights Chamber for Bosnia and Herzegovina, which, pursuant to Annex 6 to the Dayton Peace Agreement of 1995,10 handed down many decisions relating to alleged or apparent discrimination in the enjoyment of various economic, social and cultural rights.11
At the regional level, the European Committee of Social Rights can consider collective complaints for alleged violations of the European Social Charter, and has developed significant jurisprudence in this regard. Additionally, the Inter-American Court of
10 Dayton Peace Agreement, Annex Six: Agreement on Human Rights, article XIV (14 December 1995).
11 Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights, E/C.12/BIH/CO/1 (24 January 2006) paragraph 5.
Human Rights, the ECOWAS Court of Justice and the African Court and Commission of Human and Peoples’ Rights have jurisdiction to hear complaints regarding violations of economic, social and cultural rights. While the ECOWAS Court and the African Court and Commission are able to hear complaints relating to all rights in the African Charter, the Inter-American Court of Human Rights, by virtue of article 19 (6) of the 1988 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, is only authorized to decide on individual petitions relating to the right to education and the right to organize trade unions.
At the international level, complaints can now be submitted to the Committee on Economic, Social and Cultural Rights (CESCR-Committee), following the entry into force in May 2013 of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). The Committee is a quasi-judicial body whose views, while not legally binding, carry important interpretive weight. They will help to clarify the scope of State obligations in specific cases and the types of remedies that need to be adopted to bring redress to victims. A number of other international human rights treaties also include provisions on economic, social and cultural rights. The respective treaty bodies for the Convention on the Rights of the Child (CRC), CEDAW, the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (ICRMW) and the Convention on the Rights of Persons with Disabilities (CRPD), are competent to consider individual complaints regarding economic, social and cultural rights as defined under these treaties (for details see Chapter 5). In the same sense, as some economic, social and cultural rights and civil and political rights are interdependent, aspects of economic, social and cultural rights can also be considered under the complaints mechanisms provided by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Optional Protocol to the International Covenant on Civil and Political Rights (OP-ICCPR). For example, denial of food or health care to persons deprived of liberty can amount to torture or inhumane and degrading treatment. Forced evictions can also affect the right to private and family life, or violate due process of law.
Although challenges remain in ensuring the right to an effective remedy for economic, social and cultural rights, recent trends such as the entry into force of the OP-ICESCR indicate progress in reversing the outdated assumption that economic, social and cultural rights are not justiciable.
Box 12 Legislation and the competence of domestic courts in the area of economic, social and cultural rights: two examples
In some countries, legislation empowers domestic courts to rule on economic, social and cultural rights. In South Africa, where economic, social and cultural rights are enshrined in the Constitution, the right to food, access to health care and housing and other rights may be enforced by the courts. In the Grootboom case (Government of the Republic of South Africa v. Irene Grootboom and others, CCT 11/00), the country’s Constitutional Court set an international precedent in adjudicating economic, social and cultural rights.
The case involved an application on behalf of 900 people who had occupied vacant land while waiting for low-cost State housing to become available but had been evicted and their homes destroyed. The applicants first submitted a petition to the High Court and then appealed to the Constitutional Court, claiming that their right to adequate housing had been violated. The Constitutional
Court upheld the applicants’ claim. It found that the State was under a negative obligation not to prevent or impair access to housing and a positive obligation to create an enabling environment for the fulfilment of this right. By failing to implement a coherent and coordinated housing plan for those most in need, the State had failed to take reasonable measures to progressively realize the right to housing. The Court ordered the State to “devise, fund, implement and supervise measures to provide relief to those in desperate need.”
In 2003, the Scottish parliament passed the landmark Homelessness etc.
(Scotland) Act 2003, which created a fully justiciable right to housing. While at first applicable only to persons who had a “priority need”, the priority needs test was gradually replaced over a ten-year cycle and finally abolished in December 2012. Thus, all unintentionally homeless persons in Scotland have a legally enforceable right to housing. In its 2009 review of the United Kingdom’s (UK’s) compliance with its obligations under the ICESCR, the Committee on Economic, Social and Cultural Rights singled out the Homelessness Act as “best practice”, implying that it should be extended to the rest of the UK “especially its provision relating to the right to housing as an enforceable right”.
More examples of national courts adjudicating social and economic rights can be found in Chapter 13.
Further reading
– Basic principles and guidelines on the right to remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law. UN Doc. A/RES/60/147 (16 December 2005)
– Updated set of principles for the protection and promotion of human rights through action to combat impunity:
E/CN.4/2005/102/Add.1 (8 February 2005)
– Rule-of-Law Tools for Post-Conflict States: Amnesties, New York and Geneva, OHCHR, United Nations, 2009.
Available at https://shop.un.org and http://www.un-ilibrary.org
– Rule-of-Law Tools for Post-Conflict States: Reparations Programmes, New York and Geneva, OHCHR, United Nations, 2008. Available at https://shop.un.org and http://www.un-ilibrary.org
– Frequently Asked Questions on Economic, Social and Cultural Rights, Fact Sheet No. 33, New York and Geneva, OHCHR, United Nations, 2008. Available at http://www.ohchr.org/Documents/Publications/
FactSheet33en.pdf