Justiciability of Economic, Social and Cultural Rights

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JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Content
I. Introduction
II. Conceptual Barriers of Judicial Enforcement
A. Nature of State Obligations
B. Separation of Powers
III. Practical Issues
A. Complexity of Adjudication
B. Institutional Competence
C. Remedies and Implementation
D. Resource Scarcity

IV. Potentials for Justiciability

A. Minimum Core Rights
B. Integrated Approach
C. Special Forms of Remedies
V. Conclusions
Bibliography

I. Introduction

Traditionally, international human rights law has branded economic social and cultural rights as second generation, non-justiciable rights, in contrast with civil and political rights. Supporters of traditional view argue that these are rights too vague to determine their violations. It is also frequently said that courts lack democratic legitimacy to intervene in social policy matters and that courts do not have ability to understand and adjudicate the complex issues involved. Many governments and scholars have, therefore, rejected judicial enforcement of these rights as the most expensive and practically impossible to implement.

Despite this tradition of hierarchy, these rights have increasingly gained recognition at international stage and national levels. The urgencies of social disparities have pushed international community to act for realization of socio-economic rights. The essential element of such realization is accepting justiciability of these rights. Proponents of complaints mechanism have long argued that the absence of strong enforcement mechanisms has marginalized socio-economic rights, and that these rights are equally fit for enforcement by courts.

This essay dwells on this question of justiciability and analyses arguments on both sides. Part II examines the non-justiciability argument from the point of view of the textual language of the International Covenant on Economic, Social and Cultural Rights and of judicial legitimacy. Part III addresses itself to the practical problems to socio-economic rights judicial enforcement. The view for justiciabilty is treated under part IV.

For the purpose at hand, “justiciability” is taken in its narrower sense to refer to judicial enforcement. This is not to argue that judicial enforcement is the only or the best mode of implementation. Given its limited scope, the essay does not consider this issue at all. It simply addresses issues relating judicial enforcement as one mode of implementation of socio-economic rights. II Conceptual Barriers of Judicial Enforcement

A. Nature of State Obligations

One of the arguments for the non-justifiability of economic, social and cultural rights relates to the language of the text of the Covenant. Compared to the Covenant on Civil and Political Rights, the language used in the Covenant on Economic, Social and Cultural Rights is frequently considered as vague or general. The idea is that the rights of individuals are not precise enough or that the obligations of states are not sufficiently defined to be enforced by the court of law. Socio-economic rights are denounced on the basis of the principle of legal certainty. An argument is made that these rights are open-ended and indeterminate, and hence they lack conceptual clarity.[1] It is to this line of argument that this sub-section turns in.

Article 2(1)[2] of the Covenant provides for undertaking of states vis-à-vis economic, social and cultural rights of human beings. The provision reads:

Each state party to the present Covenant undertakes to take steps individually and through international assistance and cooperation, specially economic and technical, to the maximum of its available resources, with a view to achieving...
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