Stuck in a Moment in Time: The International Justiciability of Economic, Social and Cultural Rights

Abstract

The purpose of the present article is to support, update and develop the position, which is expressed in part of the existing literature, that economic and social rights (ESR) are internationally justiciaible and can be meaningfully enforced by international courts and tribunals. In particular, it focuses on the methodology that could be employed in the adjudication of ESR - i.e., on the availability of credible legal methods that could facilitate examination of compliance with international standards governing this field. Furthermore, the article criticizes some of the principal objections to the development of a global ESR complaint mechanism, and argues that: a) these objections largely ignore the multi-faceted nature of ESR and its implications for the feasibility of judicial or quasi-judicial review projects; b) the objections typically offer an 'all or nothing' vision of judicial review and ignore the possibility of developing sophisticated and less-intrusive methods of review, which could accommodate many of the problems associated with judicial review over ESR (such as review of decision making methods and procedures and the grant of generous margins of appreciation to national authorities on substantive matters relating to the implementation of ESR); and c) the objections fail to appreciate the effect of international jurisprudence, which reads into first-generation human rights 'positive obligation' elements, on the feasibility of applying analogous standards of review vis-a-vis second generation rights - i.e., ESR. The article concludes by offering possible guidelines for international quasi-judicial review over the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and addressing the legitimacy of an optional protocol facilitating the exercise of such quasi-judicial powers.