ABSTRACT Economic, social and cultural rights (ESCRs) depend on a healthy environment. Environmental degradation, climate change, and limited natural resources affect the realization of these rights and necessitate a reinterpretation of the International Covenant on Economic, Social and Cultural Rights (‘the Covenant’). As a living instrument, the Covenant must evolve and adapt to present-day environmental crises that threaten the full enjoyment of these rights. This paper proposes a teleological and evolutive interpretation of the general obligations on states parties in article 2(1) that takes the environment into account. Drawing from the established practice of the United Nations Committee on Economic, Social and Cultural Rights, the paper proposes a reinterpretation and greening of the following key doctrines in the Covenant: the use of the maximum available resources; progressive realization and non-retrogression; and core obligations. The proposed interpretation recognizes the value of natural resources and the environment; respects environmental limits and planetary boundaries; and ensures that the environmental foundation on which ESCRs depend is protected with the requisite priority and urgency. The rights in the Covenant will be undermined and rendered obsolete if their interpretation does not evolve to confront the urgent environmental challenges of our time.

ABSTRACT While the principle of non-refoulement is today acknowledged as the cornerstone of the general human rights regime protecting people on the move, developments of the content of this principle have focused on risks of harm to civil and political (CP) rights. Factors affecting economic, social and cultural (ESC) rights have been addressed only indirectly, where socio-economic deprivation is deemed to amount to inhuman and degrading treatment. Nevertheless, not every instance of severe harm to ESC rights will necessarily equate to ill-treatment. Failure to recognize an autonomous basis for non-refoulement obligations in ESC rights may thus lead to gaps in protection and contribute to the trend of underdevelopment of the legal content of ESC rights in comparison to CP ones. This article thus addresses whether obligations of non-refoulement can be autonomously deduced from treaty provisions on ESC rights. In doing so, it delves into the legal basis upon which the principle of non-refoulement in general human rights law is built, according to the practice of international human rights bodies in interpreting and applying this principle. The article takes into account the practice of all regional human rights frameworks (African, European, and Inter-American) and United Nations treaty bodies that have dealt with the principle of non-refoulement, seeking to discern a common foundation to this principle’s rationale and scope. It is submitted that non-refoulement qualifies as a positive obligation to prevent risks of severe harm to rights by third parties and is, accordingly, inherent in all human rights. The compatibility between ESC rights obligations and non-refoulement is then analysed, and ways to render practicable the application of non-refoulement in connection with these rights are identified, focusing on immediate obligations stemming from ESC rights and minimum threshold obligations. Finally, objections to non-refoulement based on socio-economic grounds, namely concerns regarding the potential increase of mass migratory influxes and the added value of such a norm, are addressed. The article concludes that neither legal nor non-legal considerations bar deducing non-refoulement obligations from ESC rights and that much of the reasoning applied to non-refoulement assessments in cases involving CP rights can be transposed to cases involving ESC rights, especially when immediate ESC rights obligations are at stake.

This article provides an overall assessment on the justiciability of economic, social and cultural rights (ESCRs) within the legal system of South Sudan. It establishes that, in theory, ESCRs are justiciable under the legal system of South Sudan in a complementary and collaborative manner at two levels, namely, the national and supranational. The article argues that ESCRs may in theory be legally and judicially enforceable by virtue of the Constitution and domestic legislation. Furthermore, ESCRs are justiciable by virtue of the automatic incorporation of numerous treaties into the Bill of Rights in the Constitution, with these treaties also effecting justiciability as part of the international treaty obligations of South Sudan. It further asserts that there are two parallel layers, national and supranational, which give effect to the legal realisation of ESCRs in South Sudan. This is presented through numerous domestic constitutional and legal provisions, and also international and regional treaty obligations of South Sudan. For that purpose, the article appraises relevant provisions in the Constitution, domestic laws, and United Nations and regional treaties to which South Sudan is a state party. In addition, the article examines a number of bodies and entities that are established by these frameworks to operationalise the enforcement of ESCRs. The article concludes that this composite situation forms a basis for all the instruments and structures to supplement and complement one another in a non-hierarchical perspective. The view expressed in the article is that the current status remains theoretical and is empirically and practically challenged by the factual realities that hinder and hamper the operationalisation of justiciability in South Sudan. It recommends that a practical test is required in order for a comprehensive legal jurisprudence about the justiciability of ESCRs in and for South Sudan to materialise.

Cali, Colombia has been a destination for migrants from Venezuela, either to serve as a transit point or a settlement for those seeking better opportunities. This complex situation, within the context of an intermediate city located in the Global South, has led to unprecedented institutional challenges related to the assurance of Economic, Social, and Cultural Rights (ESCR), and even more, requirements for social coexistence. This paper aims to elucidate tensions that have arisen in the social integration of the migrant population in Cali, Colombia, based on the analysis of their access to health and work rights. The primary reference for this exploration is drawn from oral accounts provided by Venezuelan migrant participants residing in the city.

The purpose of this paper is to present an overview on the discussion around the justiciability of economic, social and cultural rights (ESCR), i.e., whether they are able to be invoked before national or international courts. Thus, from the traditionally unfavorable allegations to the ESCR, a historical review on its origin, concept and legal nature is presented in order to dismantle those allegations, bringing up the pertinent arguments, presented as an outcome of this study, which prove, therefore, the ESCR justiciability. From a methodological perspective, this paper is developed through analysis regarding the different approaches in legal sources and official documents at the national, and in particular, the international sort, in order to demonstrate that the present discussion can take place in any level, whether national, regional or global, whenever DESC violation is detected. For this reason, the arguments intend to overcome the discussion on the justiciability of DESC as a way of guaranteeing a legal remedy to victims in case of violation, in order to increase levels of quality of life and contribute to the drastic reduction of poverty and social inequalities of any country. Therefore, if the justiciability of ESCR is not recognized as is the justiciability of civil and political rights (CPR), all the acknowledgments and efforts made to consider all human rights as one integrated body will be worthless.

The right to property is part of International Human Rights Law (IHRL). However, the right is conspicuously missing from some fundamental treaties, and there are important inconsistencies in its interpretation by regional and global human rights bodies. In light of the indeterminacy and polysemy of IHRL in relation to property, this paper articulates a proposal to rethink this right taking Economic, Social, and Cultural Rights (ESCR) seriously. The proposal contains four propositions. Firstly, property is a human right. Secondly, it includes private property as one of its forms, but this is not the only one. Thirdly, property has a social function. And fourthly, as a matter of proportionality, fulfilling ESCR is one of the most important objectives that may justify the limitation of private property.

Although significant literature and jurisprudence has amassed on rights-based climate litigation over recent years, less research and case law has emerged on poverty-related court cases and the fulfilment of economic, social, and cultural rights (ESCR) in Canada. Fewer still are studies exploring the interlinkages between these areas of inquiry. The purpose of this paper is to explore, using Canada as a case study, rights-based developments in climate litigation cases and how these could impact the innovative advancement of ESCR (e.g. to food, housing and water). Typically, issues of justiciability and standing emerge, impeding the realization of such rights. Given the grave threats we now face, climate cases and social movements must be brought together to better hold state actors accountable for their rights obligations. We implore the legal community to explore ways to traverse juridical obstacles to realize the interdependencies of human rights and protect the planet from calamitous climate change.

Human rights law is a powerful legal tool to protect health, including tobacco control. The International Covenant on Economic, Social and Cultural Rights (IESCR) obliges States to produce results and is enforceable. Although a human rights approach would have many advantages for Latin American tobacco control, it has not been appropriately used for advocacy purposes yet. Human rights law is a powerful legal tool to protect health, including tobacco control and smoking cessation. Therefore, I appreciate this article by Meier et al. [1]. I will briefly comment on some additional aspects, both generally and as they relate to the current situation in Latin America. Are human rights enforceable? In theory, yes. Human rights are inherent to human beings and empower individuals (rights holders) to demand that States (duty holders) comply with the obligations of those rights. However, an “artificial” contrast has been raised about differences in enforceability between civil and political rights (e.g. the right to life, liberty, property, etc.) and economic, social and cultural rights (ESCR), related to living conditions and access to material and cultural goods (including the right to health). Civil and political rights confer an obligation of results and no one disputes they are enforceable. ESCR confer obligations of means or behaviour and can be viewed as enforceable only to the extent that the State has sufficient resources; they are, therefore, often regarded as “expectations” [2]. For most Latin American law, the fact that ESCR must be fulfilled according to the available resources does not imply they are not enforceable. The obligation to use “the maximum” of the “available resources,” together with the obligation of progressive satisfaction and the need to the results to the appropriate technical or political standards, would make ESCR enforceable. In addition, international law imposes a fundamental rule: pacta sunt servanda, which means that “contracts are to be fulfilled.” Traditionally, the human rights State obligations were classified into positive obligations (to carry out certain activities leading to compliance; in the case of civilians and politicians) and negative obligations (to refrain from actions that violated them; in the case of ESCR). Currently, the Van Hoof classification describes three types of human rights State obligations: to respect (refrain from interfering directly or indirectly), to protect (take measures to prevent third parties from interfering), and to comply (adopt all legislative, administrative, budgetary and other measures appropriate for its realization) [2]. Although ESCR are considered enforceable rights, they are threatened by the doctrine, linked to economic liberalism, which aims to make the State cheaper, often at the cost of social policies. Additionally, although a human rights approach would have many advantages for Latin American tobacco control, this approach has traditionally not been used by tobacco control advocates, but by rather by the tobacco industry (e.g. arguing freedom of expression violation) to attack tobacco control policies [3]. A human rights approach currently has limited relevance for tobacco control policies in Latin America. As Meier et al. point out, human rights law has a prominent role in political and regulatory discourses, and some countries have already established a connection between tobacco control and the fundamental right to health. Because most Latin American countries belong to the civil law tradition, controlling private actors through civil liability litigation is underdeveloped. However, Latin America also has a strong tradition of controlling State action through fundamental rights litigation. Likewise, the Inter-American Human Rights System provides a way to demand human rights State responsibility. Although the current relevance of a human rights approach in Latin America may be limited, it seems a promising approach that ought to be explored [2]. None. None.

Abstract The perception of the nature and standing of economic, social, and cultural rights (ESCR) has significantly changed and more than ever corresponds to the spirit and letter of the 1993 Vienna Declaration and Programme of Action. However, it would be difficult to overlook the residual impact of the scepticism towards these rights. From the very beginning of its existence, the Committee on Economic, Social and Cultural Rights has devoted continuous efforts to address said scepticism, focusing, inter alia, on three fundamental issues: the dependence of the implementation of ESCR on the resources available to states; the general articulation of relevant standards; and the related denial of subjectivity and justiciability of these rights. This article sketches out the Committee’s interpretation of some of the provisions of the International Covenant on ESCR and its Optional Protocol that are key to the legal standing of the Covenant rights, such as the obligation to use the maximum of available resources, the principle of progressive realization of ESCR, the standard of reasonableness, and the essential (core) content of rights and the minimum core obligations of states. The article concludes that the Committee has made a considerable contribution to the recognition of the subjective nature and justiciability of ESCR. Looking at the Committees approach over the years since its creation, it can be seen that it has consistently developed its doctrine of interpretation of the Covenant and its standards. The case law under the OP not only serves the protection of victims but has also enabled the Committee to expand its interpretation of ESCR and apply them as subjective and justiciable rights.

The Right to Work Obligations of an Occupying Power Whereas it is no longer a concern whether international human rights law (IHRL) is applicable during an armed conflict, the mode of applicability represents a challenge, particularly in view of the potentially limiting doctrine of lex specialis. The article argues that IHRL provisions on the right to work can contribute positively to the rather scarce provisions on the same right in occupation law. The inherent clash between the applicability of IHRL and international humanitarian law (IHL) lies in the conservative and resistant to change nature of occupation law, on the one hand, and progressive and dynamic economic, social and cultural rights (ESCR), on the other. The author examines the extent to which the domestic law of an occupied territory may be changed during occupation to be in line with the IHL requirements while, at the same time, fulfilling the duties in line with the IHRL obligations. A genuine necessity test is offered as the solution. The author contends that no uniform answer exists and that each case should be analysed separately, taking into account that any change in law should first be absolutely necessary and that, secondly, it should reflect the best interests of the occupied inhabitants. Examples will be drawn from the cases of Occupied Palestinian Territories and Iraq.

Abstract Following the financial crisis and the imposition of austerity measures within the UK, poverty across the country has widened and deepened. The resulting severe negative impacts on the realization of economic and social rights are still being felt. Accountability of the State for such poverty related human rights violations has predominantly been addressed by judicial or quasi-judicial remedies. However, it is contended that due to limitations of scope and reach, alternative and additional mechanisms encompassing broader forms of justice are required to effectively address poverty and related violations of rights. This article explores the value-added of addressing poverty and related violations of economic, social and cultural rights (ESCRs) using alternative and additional ‘justice’ mechanisms drawn from the practice of transitional justice, in particular truth and reconciliation commissions (TRCs). Drawing upon the experience of community-based truth and reconciliation commissions, we evaluate the effectiveness of the UK Poverty Truth Commissions (PTCs) as a mechanism for realizing justice for poverty and related human rights violations. The central contention is that while the PTCs constitute an important and meaningful form of transformative justice, there is significant value-added in using a more explicit ESCRs agenda to enhance accountability, recompense and equality and fairness. Overall, the PTCs can help to close the ‘justice gap’ (Lederach 2001) and make a valuable contribution to transformative justice, tackling poverty and realizing ESCRs within the UK.

To a great extent, respecting human rights in the Republic of Moldova is affected by unsatisfactory evolution of public expenditures and the way the latter are managed. The quality of public expenditure management, with an impact on respecting economic, social and cultural rights (ESCR) is evaluated through the prism of basic objectives of public financial management, namely the following: maintaining strict financial discipline, allocating public financial resources in conformity with government’s priorities, efficient provision of public services. The central public administration and local public administrations from the Republic of Moldova are relatively more successful in consolidating fiscal discipline than in providing an efficient use of public expenditure in conformity with strategic priorities. The research argues the positive effect which can be made by improvement of public expenditure management on respecting ESCR in the Republic of Moldova.

Abstract This paper argues that there is no hierarchy in the importance attached to the different categories of human rights. Hence, Civil and Political Rights (CPRs) and Economic, Social, and Cultural Rights (ESCRs) are both human rights and must be placed on the same pedestal. In a democracy, it is imperative that all rights be accorded equal treatment. The aim of this paper is to investigate whether Botswana accords equal treatment to the two categories of human rights. Using a case study approach, the paper concludes that while the Constitution of Botswana provides for CPRs, ESCRs are absent from this instrument. Consequently, the provision of economic, social, and cultural goods is policy-based. The paper argues that this raises accountability and justiciability challenges because the state cannot be sanctioned for failing to provide non-rights. It recommends the constitutionalisation of ESCRs to maximise the accountability and justiciability of ESCRs.

Economic, Social and Cultural (ESC) rights have been present and active in the Cypriot legal order from the moment of its constitutional genesis. Due to the special relationship between the Constitution and the European Convention on Human Rights (ECHR), the judiciary has adopted a unique approach when interpreting the Constitution; it has been willing to engage into a comparative juridical analysis and to rely on the ECHR and the findings of the European Convention on Human Rights (ECtHR). Through this nexus with the ECHR and the streamlined approach with the ECtHR, the legal system of Cyprus has been progressive in placing social and economic rights – and to a lesser extent cultural rights – in a secure position. This traditional approach of the Cypriot courts was called into question by the 2011-2016 economic crisis, which challenged the interplay between domestic and external normative systems. The aim of this paper is to assess the impact of the recent economic crisis on the protection of ESC rights and the change in the balance between domestic and normative systems. The analysis concludes that the protection of ESC rights under the Cypriot Constitution, as formed by Cypriot case law, has been substantive and effective, while positively influenced by the extensive deployment of the comparative method. That long-standing approach has been challenged by the economic crisis and it seems that the extrovert judicial viewpoint is now partly reconsidered. The Supreme Court has indicated, albeit in specific instances, its willingness to disregard guidance from external influences and to focus instead on the idea that national constitutional protection can and should exceed that of the ECHR.

Between 2015 and 2019 Sri Lanka has been in the process of drafting a new Constitution in the aftermath of the civil war that lasted from 1983 to 2009. In spite of the very high human development in Sri Lanka, public expenditures on education and health as a proportion of the GDP have declined since the 1960s. Besides, it is argued that democracy in Sri Lanka is patronage cum greed based, and hence a case is made for inculcating a merit cum need based democracy for which justiciability of Economic, Social, and Cultural Rights (ESCR) is a sine qua non. Moreover, we argue a case for incorporating ESCR as justiciable rights in the proposed new Constitution not only on its own right but also as a means of durable peacebuilding in the aftermath of a savage civil war.

This article examines the extent to which the inclusion of the European Union (EU) Charter of Fundamental Rights in the Treaty of Lisbon, which gives legal force to socio-economic rights as well as civil and political rights, will succeed in helping EU member states meet international treaty obligations to implement socio-economic rights. Will the EU’s renewed commitment to developing the social sphere, post-Brexit, be more successful and will British citizens lose out on so-cio-economic rights in the long term if the EU succeeds in creating a better social or public dimension? Member states of the EU that have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) have obligations to progressively realise economic, social and cultural (ESC) rights. Progress on this has been slow and potentially made more difficult by the economic direction adopted by the EU since the 1980s. Although the EU, from the beginning, saw itself as a “social market” it struggled to embed the “social” to the same extent that it embedded the “market”. Critics argue that the economic policies of the EU and key judgements of the European Court of Justice (ECJ) successfully dis-embedded the market from its social context. Additionally, the regulatory regime of the EU developed in a direction that limited the capacity of nation states to ameliorate the consequences of market-led policies for the least advantaged. However, the Charter of Rights, which places socio-economic rights on an equal footing with civil and political rights, is a novel and bold initiative. It has stimulated debate on whether the Charter could rebalance the EU’s economic agenda by paying attention to the social consequences of predominantly market-led policies. This paper examines the potential impact of the EU Charter, in the context of member states international human rights obligations, to create an environment where member states of the EU have fewer obstacles to the “progressive realization” of ESC rights.

Abstract The attention that the Sustainable Development Goals (SDGs) has given to public–private partnerships in solving global concerns including poverty, sustainable development and climate change has shed new light on the question of duties of corporations in relation to economic, social and cultural (ESC) rights. At the same time, objections to recognizing the obligations of corporations in relation to human rights in general and to ESC rights in particular have continued to be made. At the formal level, these objections are reflected in new distinctions such as between the duties of states and responsibilities of corporations, between primary duties of states and secondary duties of corporations, and between obligations of compliance and obligations of performance. All these objections and distinctions are untenable and serve only to stultify the discourse on business and human rights. The current state of human rights is dynamic, not static; commodious, not stale. There is ample space in it to accommodate duties of corporations regarding ESC rights.

Such a title as the one I’ve given this lecture (have economic, social and cultural rights (ESCRs) come of age?) would be extremely odd if the reference were to Civil and Political Rights (CPRs). This latter category of rights — extending from the freedom from torture to the rights to free expression, association and assembly — have long been established and accepted as an essential part of the wider human rights family. And yet, when the debate shifts to ESCRs we are much more tentative. To this day you still hear questions such as: are ESCRs really rights? Can you sue for redress for the violation of your right to shelter?, and: Surely, is it the State which should be held accountable for your right to food?

This article focuses on women’s economic, social and cultural (ESC) rights in Azad Jammu and Kashmir (AJK). The Key human right issues concerning three ESC rights, namely education, employment and health, are targeted and discussed here. The article argues that towards fulfilment of its state-like national and international human rights obligations, AJK may progressively realize for its women population, its ESC rights through legal and policy measures. At the outset, the article discusses key human rights of women in the AJK, reflecting on both law and policy issues. While discussing the three rights mentioned above, the main focus remains on equality and non-discrimination. An analytical method is adopted to analyse relevant laws and policies. The article will, however, note deficiencies, if any, in the relevant laws and policies pertaining to the three targeted rights.

States are urged frequently by the UN, policymakers, and activists to recognise the human right to water domestically. However, does such legal incorporation, often in national constitutions, affect water policy and the realisation of the right? While several qualitative studies report positive impacts, initial quantitative assessments have questioned the systematic positive impact of the national recognition of the human right to water. Yet, such quantitative analyses of the effects of constitutional rights to water often overlook important mediating policy factors. We test specifically whether strong democratic governance is a significant condition for ensuring that the constitutional recognition of the human right to water has concrete outcomes. Results of a multivariate regression analysis on a global sample of 123 states over a 15-year period provide two findings. First, the constitutionalisation of the right to water and other economic, social, and cultural rights (ESCRs), in national constitutions alone is not associated with material benefits related to the human right to water. Second, the constitutionalisation of those rights can have positive material benefits for water access when the rights are foregrounded in democratic governance.