Justiciability of ESC Rights and the Right to Effective Remedies: Historic Challenges and New Opportunities

Abstract

This publication, in English and Chinese, is based on a keynote speech by the author to Chinese judges and lawyers delivered in Beijing in 2008. The article discusses the barriers that have existed in adjudicating and remedying violations of economic social and cultural rights and the historical developments focused on the adoption of the Optional Protocol to the ICESCR. Whereas political and civil rights have been enforceable by individual claimants under an established complaints procedure since the adoption of the ICCPR, a comparable mechanism has not existed under the International Covenant on Economic, Social and Cultural Rights (ICESCR). This has led to imbalances in the understanding of and ability to enforce economic, social and cultural (ESC) rights in comparison to civil and political rights. The OP-ICESCR attempts to correct that imbalance, recognizing that all components of ESC rights are justiciable and must be subject to access to justice by rights claimants and effective remedies for those whose rights have been violated. Now that the international community operates on the understanding that ESC claims are justiciable, the question moves to how ESC rights should be effectively and competently adjudicated. Homelessness, lack of access to food and socio-economic deprivation are systemic human rights failures that entitle individual claimants to remedies. As well as relying on new competencies and commitments by courts, efforts are being made at municipal, national and international levels of government to create institutions that can support the adjudication of and remedy for ESC rights violations. For such institutions to succeed unimpeded by legal fictions, ESC rights need to be assessed in context and considered from the perspective of the person whose rights are being violated. Courts and administrative bodies must operate in a manner consistent with the ICESCR, and be in a position to provide remedies for ESC violations. Social rights practice has been diverse and creative. ESC rights have been claimed before a multitude of bodies in cooperation with larger advocacy initiatives. A critical aspect of ESC rights advocacy is to ensure that the compelling stories of rights claimants are heard. ESC rights are also interdependent with civil and political rights, which is especially important in some countries, like Canada, where ESC rights are not explicitly protected but are intuitively found in other rights guarantees such as equality and security of the person. While a number of successes in adjudicating ESC rights are cause for optimism, there is an immense amount of work to be done. Many poor people routinely experience deprivations of their fundamental human rights without access to counsel or to appropriate remedies. Access to justice and the development of appropriate institutional mechanisms for the adjudication of ESC rights at the domestic level remains a key priority.