Judicial Enforcement of Social Economic Cultural Rights

Table of Contents

Particulars Page No:
Executive Summary 05
1.0. Introduction 06
1.1.  The purpose of this report 07
1.2.  The structure of the report 09
1.3. What is ‘justiciability’? The right to a remedy for a

violation

10
2.0. Defining the content of ESC rights I: ESC rights as a basis for

adjudication

12
2.1.  The development of ESC rights – an historical perspective 12
2.2.  Critiques of ESC rights on account of their ‘vagueness’ 12
2.3.  Statutory definitions of ESC rights 14
2.4.  The role of international treaty bodies and international experts in

defining the content of ESC rights

15
2.5. ‘Monist’ systems 15
2.6. ‘Dualist’ systems 16
3.0 Defining the content of ESC rights II: Developments in domestic

and international courts and tribunals

17
3.1   Core content or minimum core duties 17
3.2.  Duties of immediate effect and duties linked with the progressive

realization of ESC rights

18
3.3. Duties of immediate effect 19
3.4. The right to housing and duties of immediate effect 19
3.5. The right to work and duties of immediate effect 20
3.6.  Duties related to the progressive realization of ESC rights 21
3.7.  Non-discrimination and equal protection of the law 21
3.8. ‘suspect categories’ 22
3.9. Non-discrimination and equal protection of the law: case law

examples

22
3.10. Discrimination in the field of housing and social security benefits 23
3.11. Discrimination and the right to work 24
4.0 Defining the content of ESC rights III: The indivisibility of human

rights in practice: indirect protection of ESC rights through civil   and political rights

26
4.1. The right to health and civil and political rights protection 26
4.2. The right to housing and civil and political rights protection 27
4.3. The right to education and civil and political rights protection 28
4.4. The right to social security and civil and political rights protection 28
4.5. Trade union rights and the right to work and civil and political

rights protection

28
5.0. The proper role of courts in determining how social policies  comply with legal norms 30
5.1. ‘Political questions’ 31
5.2. The definition of the role of the judiciary 32
5.3. Superior and inferior law: the hierarchical structure of legal systems 33
5.4. The judge’s role in the implementation of ESC rights 34
6.0. Procedural challenges and solutions 35
6.1. The alleged professional incapacity of judges to confront and

solve conflicts regarding social, economic and cultural issues

35
6.2. The alleged institutional incapacity of the judiciary to enforce ESC

rights decisions on the political branches of the state

36
6.3. Procedural limitations and the inadequacy of some traditional

procedural mechanisms for protecting social rights

37
7.0.  Justiciability of ESC rights in the domestic

sphere and international human rights law

38
7.1. Justiciability in the domestic sphere and international human

rights law: some appraisals

39
7.2. Developments in international human rights and justiciability in

the domestic sphere

40
7.3. The value of international human rights law for ESC rights

40
7.4. Creating an enforcement mechanism for the ICESCR

41
8.0 Conclusion

43
Bibliography 44

Executive Summary

Justifiability is not the only means of enforcing ESC rights. A great number of the tasks required for the full realization of ESC rights depend primarily on action by the executive and legislative branches of the State. However, denying judicial intervention in this field seriously reduces the remedies victims of ESC rights violations can claim. It also weakens the accountability of the State and erodes deterrence; consequently fostering impunity for violations.

None of the traditional objections pose insurmountable impediments to the justifiability of ESC rights. However, they should be taken into consideration in order to identify issues which may require the adoption of legislation and development of new procedural mechanisms, beyond the recognition of ESC rights in constitutional and human rights provisions.

It is possible to determine the content of ESC rights, both in the general context of constitutional and human rights treaties, and in the more specific context of statutes and regulations. Methods for the determination of their content have been widely used by judges in many other legal fields.

Domestic legislative and administrative regulations identifying the right- holder, the duty-bearer and the content of the duties will be a helpful tool for strengthening the justiciability of ESC rights. There is also space for the application of general constitutional and human rights standards – such as non-discrimination, equality, reasonableness, and respect for due process to State legislation and practice.

The expansion of legal principles and standards originating in the field of civil and political rights (and administrative law) to ESC rights would also be a helpful means of fostering justifiability.

Comparative international and domestic developments, both in terms of conceptual frameworks and case law, can offer good examples to follow in other jurisdictions in the adjudication of ESC rights.

Retaining the balance between different branches of the State does not  preclude judicial involvement in the adjudication of ESC rights.

Chapter 01-

Introduction

The International Commission of Jurists (ICJ) has consistently recognized and advocated that economic, social and cultural rights (ESC rights)1 should be taken as seriously as civil and political rights. ESC rights have been part of the language of international human rights since at least the adoption of the Universal Declaration of Human Rights (UDHR) in 1948. Yet, compared to civil and political rights, there has been considerably less attention placed on the need to develop the content of ESC rights and protection mechanisms to enforce them. These gaps in the international human rights system, this report will argue, came about for political and not for legal reasons. To a great extent, the cause of these gaps was the prominence accorded by Western countries to civil and political rights, in the context of the cold war divide. As a consequence, the notion of the justiciability of ESC rights has been neglected and largely ignored. The term “justiciability” means that people who claim to be victims of violations of these rights are able to file a complaint before an independent and impartial body, to request adequate remedies if a violation has been found to have occurred or to be likely to occur, and to have any remedy enforced.

Bridging the gap between the justiciability of civil and political rights and that of ESC rights is key if both sets of rights are to be considered on an equal footing. This report will demonstrate that:

Ø      ECS rights can be adjudicated

Ø      adjudication is desirable, and

Ø      adjudication is already put into practice, to varying degrees, in many courts throughout the world.

The report analyzes and counters some of the traditional objections to the justicia- bility of ESC rights. Some of these objections have been debated in the academic field.2 They also inform the position of States in various fora, including the present

See, from different points of view, A. Neier, “Social and Economic Rights: A Critique”, Human Rights Brief 13-2 (2006), 1-3; G. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?, University of Chicago Press, Chicago,1991; C. Tomuschat, “An Optional Protocol for the International Covenant on Economic, Social and Cultural Rights?”, in Weltinnenrecht. Liber amicorum Jost Delbrück, Duncker & Humblot, Berlin, 2005, pp. 815-834.

This report refers to a wide variety of case law, showing how courts and judges around the world have adjudicated ESC rights, despite the alleged impediments to this. The case law highlighted in this report has been selected to:

Ø      Represent a wide variety of ESC rights, including labour-related rights, the right to health, the right to housing, the right to education, the right to food and cultural rights. By examining a broad range of rights this report aims to show that the blanket assumption that ESC rights in general are not justi- ciable is false, and that numerous examples can be shown to contradict that assumption, regardless of the particular right at stake; and

Ø      Represent different regions in the world: cases from different high level domestic courts, regional human rights courts, and international monitoring bodies competent to review individual, group or collective petitions.

The case law highlighted in this report includes both judicial decisions (i.e. decisions of domestic and international courts) and quasi-judicial decisions (such as UN treaty bodies4).

While judicial and quasi-judicial decisions are different, both procedurally and in terms of the legal value of their final outcome, in the context of this report they share an important common feature: they demonstrate that ESC rights can constitute the basis for judging whether a State has conformed with a legal duty.

The purpose of this report

In addressing some of the most common and pervasive objections to the justiciability of ESC rights, this report does not purport to be exhaustive. The three main topics covered here address a variety of objections raised by some States in the discussion about an optional protocol that would enable victims of violations of ESC rights to lodge complaints before a quasi-judicial international body and when States object to guaranteeing ESC rights within the domestic sphere.

These objections are threefold. They are:

Ø      the alleged uncertainty of the content of ESC rights;

Ø      concerns that the judiciary is ill-equipped in practice to adjudicate matters of social policy decided by the political branches of the State and that, underthe ‘separation of powers’, courts should not encroach on the domain of these other branches;

Ø      procedural difficulties and limitations in the judicial process, which are said to render the adjudication of ESC rights cases fraught with difficulty, useless or even meaningless.

This report also discusses how decisions relating to the justiciability of ESC rights in the domestic sphere could help at the international level andvice versa. ESC rights already have been recognized in a number of domestic constitutions and statutes worldwide.7 Conversely, the development of the content of ESC rights by international bodies can assist to overcome prejudices against justiciability in some domestic jurisdictions.

Case law in the domestic sphere may also help to clarify, as well as unpick assumptions which were entrenched in international human rights law when the UN adopted the two separate covenants in 1966, on civil and political rights (the International Covenant on Civil and Political Rights, ICCPR) and on ESC rights (the International Covenant on Economic, Social and Cultural Rights, ICESCR).

Objections to the justiciability of ESC rights were reinforced at the international level not only by the adoption of two separate covenants, but also by the fact that the ICCPR enables States to accept an individual complaints mechanism by ratifying an optional protocol, while the ICESCR does not. Regional human rights systems such as the European and the American systems have also reflected the notion that it is principally civil and political rights that are justiciable, thus limiting the list of rights that are subject to complaint mechanisms.

This report therefore acts as a window onto the ongoing process of codification of international remedies for violations of ESC rights – a process that is closing the historical gap between the attention paid to ESC rights compared to civil and political rights.

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For an overview of this process, see http://ohchr.org/english/issues/escr/intro.htm. For an NGO perspective, see http://www.opicescr-coalition.org – website of the NGO Coalition for an Optional Protocol to the ICESCR, including the ICJ. See also www.icj.org.

The arguments raised can be used in favour of an Optional Protocol to the ICESCR and other initiatives aimed at increasing the potential options for victims to claim judicial remedies when their ESC rights are violated.

Furthermore, the case law contained in this report, while not intended to be exhaustive, may be useful for legal practitioners, advocacy groups and non-governmental organizations. The report can therefore also be used as a comparative tool from which to draw ideas. The cases illustrate some strategies for litigation that have proved to be successful in different jurisdictions. Practitioners as well as judges may find this compilation of case law a useful source of comparative decisions in the field of ESC rights. Moreover, it will help governments to understand in a practical way what judicial scrutiny of their compliance with duties arising from ESC rights entails, both domestically and internationally. In turn, this understanding will help the ongoing process of drafting and adopting an Optional Protocol to the ICESCR.

The report can also be useful for training or teaching purposes, particularly given the scarcity of material bringing together precedents in this area of human rights law. The examples from different courts and tribunals around the world, both domestic and international, demonstrate how the justiciability of ESC rights is conceivable and is already a reality in many jurisdictions.

The structure of the report

The following three chapters will examine the different ways in which the content and implications of ESC rights have been defined by courts and human rights treaty bodies throughout the world. The content of a right and of the duties that it imposes are a pre-condition for the adjudication of any right.

Ø      Chapter 2 deals in detail with the challenges to the justiciability of ESC rights based on their alleged vagueness and uncertainty. Assumptions about the allegedly vague nature of ESC rights will be addressed, including an analysis of the historical development of ESC rights and their relationship to areas such as labour law. Various ways in which the content of ESC rights can be defined to counter these assumptions, will also be discussed.

Ø      In many respects, chapter 3 forms the heart of this publication. It explores in detail how the content of ESC rights has been defined by courts, how the problems posed by the justiciability of ESC rights can be overcome, and how courts have been able to guarantee ESC rights to claimants.

Ø      Chapter 4 goes on to identify how courts already have a long tradition of indirectly guaranteeing ESC rights, by interpreting civil and political rights as necessarily encompassing certain aspects of ESC rights.

Ø      Chapter 5 examines why courts are capable of measuring social policies affecting ESC rights against the legal norms guaranteed by such rights.

Ø      The final chapter investigates specific issues at the international level and identifies the need for a United Nations system to enforce ESC rights.

What is ‘justiciability’? The right to a remedy for a violation

The term ‘justiciability’ refers to the ability to claim a remedy before an independent and impartial body when a violation of a right has occurred or is likely to occur. Justiciability implies access to mechanisms that guarantee recognized rights. Justiciable rights grant right-holders a legal course of action to enforce them, whenever the duty-bearer does not comply with his or her duties.10 The existence of a legal remedy – understood both in the sense of providing a procedural remedy (effective access to an appropriate court or tribunal) when a violation has occurred or is imminent, and the process of awarding adequate reparation to the victim – are a defining features of a fully fledged right.

Such legal remedies are particularly important when the matter at stake is the viola- tion of human rights, which are, by definition, rights inherent to the human being’s condition and identity. It is for this reason that a number of human rights instruments expressly provide for a right to a remedy in case of violations of human rights.12 The right to a remedy has often been considered one of the most fundamental and essential rights for the effective protection of all other human rights.13 Similar provisions regarding the protection of constitutional or fundamental rights can be found in many constitutions around the world.14 The UN Committee on Economic, Social and Cultural Rights (CESCR) reflects this notion in its General Comment (GC) N

“But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place”.

As is well established, there are many different remedies that could be granted as a result of legal action. These include:

Ø      preventive measures

Ø      injunctions

Ø      monetary compensation, or

Ø      administrative penalties or criminal punishment.

In all cases involving justiciable rights there are clear and common elements. Essentially, the right-holder (or somebody acting on his or her behalf) should be able to lodge a complaint before an impartial and independent body when he or she considers that the duties arising from the right have not been complied with.

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The post-World War I arbitral opinion in the Lusitania cases, for example, often considered a landmark in the defining of State responsibility, held that “[i]t is a general rule of both the civil and the common law that every invasion of a private right imports an injury and that for every injury the law gives a remedy”. See Mixed Claims German-American Commission, Decision in the Lusitania Cases, November 1, 1923, Recueil des sentences arbitrales, Volume VII, p. 32, at 35. For a general panorama about the right to a remedy, see International Commission of Jurists,          The Right to a Remedy and to Reparation for Gross Human Rights Violations. Practitioners Guide N° 2 (Geneva: International Commission of Jurists, 2006: available in English,

Chapter 02 –

Defining the content of esC rights I: esC rights as a basis for adjudication

This chapter details the challenges to the justiciability of ESC rights based on their alleged vagueness and uncertainty. In addressing these assumptions the chapter wll examine the development of ESC rights from a historical perspective and their relationship to areas such as labour law. The chapter will also discuss the various ways in which rights can be defined generally, and their application in order to specify the content of ESC rights.

The development of esC rights – an historical perspective

The task of building a systematic body of jurisprudence in the area of ESC rights is no different from the task of building criteria for adjudicating any other area of law. Useful criteria and standards for judges and lawyers to apply have been and are being developed for environmental, consumer, labour and health law. These provide good examples of what is possible for ESC rights as a whole. The absence of a sufficiently coherent body of legal regulations, case law or jurisprudence in the area of ESC rights is not because of any fundamental concern relating to their non-justiciable nature, but rather due to ideology. It is clear that during the eighteenth and nineteenth centuries, law, as we now understand it, developed principally to give a legal underpinning to the capitalist market structure. This remains the dominant foundation of legal education and academic discourse today. Torts and

other “wrongs”, contract and property law continue to be the basic courses in law schools. Only in a limited number of countries has priority been given to developing a legal basis for the functions of the welfare state. A consequence is that ESC rights are considered to be ‘programmatic’ rights22 – as opposed to directly enforceable rights. The criteria, therefore, for designing and implementing social policies is left to the complete discretion of the political branches. Even in jurisdictions where a legal basis for the welfare state has been nurtured, there is still often no distinct legal discipline of ESC rights.

Critiques of esC rights on account of their ‘vagueness’

One set of arguments against the justiciability of ESC rights asserts that they are so vague or uncertain in character that their content cannot be adequately defined. Consequently, it is said, such rights are impossible to adjudicate. According to this view, while civil and political rights provide clear guidance on what is required in order to implement them, ESC rights only set out aspirational and political goals. The content of ESC rights is supposedly variable and devoid of the certainty required for adjudication. It is frequently said, for example, that rights such as the ‘right to health’ or the ‘right to housing’ have no clear meaning, and that they offer no obvious standard by which one can determine whether an act or omission conforms to the right or diverges from it, i.e. whether an act or omission fulfils the right, or

violates it.

The merits of this argument need careful examination. A lack of specificity regarding the exact content of ESC rights, and therefore of the legal obligations that stem from them, would certainly seriously impede their judicial enforcement. Without clear requirements for the content and scope of a right, combined with a failure to identify rights-holders and duty-bearers, judicial enforcement would be difficult. The process of judicial decision-making needs a relatively clear ‘rule of judgment’  which can be used to assess compliance or non-compliance with certain obligations. Without this ‘rule of judgment’, it seems impossible to differentiate between adjudication and law-making.

However, the question of content and scope of a right is not a problem exclusively related to ESC rights. The determination of the content ofevery right, regardless of whether it is classified as ‘civil’, ‘political’, ‘social’, ‘economic’ or ‘cultural’, is vulnerable to being labelled as insufficiently precise. This is because many legal rules are expressed in broad terms and, to a certain extent, unavoidably general wording. Thus, ‘classic’ rights such as the right to property, freedom of expression, equal treatment or due process face this hurdle to the same extent as ESC rights. Yet, this has never led to the conclusion that these ‘classic’ rights are not rights, or that they are not judicially enforceable. On the contrary, it has resulted in ongoing efforts to specify the content and limits of these rights, through a series of mechanisms aimed at defining their meaning (for instance, the development of statutory law-making, administrative regulation, case law and jurisprudence).

In identifying the scope of ESC rights and their content, the ICJ set out the following principles in the ICJ Bangalore Declaration and Plan of Action:

“Specifying those aspects of economic, social and cultural rights which are more readily susceptible to legal enforcements requires legal skills and imagination. It is necessary to define legal obligations with precision, to define clearly what constitutes a violation, to specify the conditions to be taken as complaints, to develop strategies for dealing with abuses and failures, and to provide legal vehicles, in appropriate cases, for securing the attainment of the objectives deemed desirable.”

Paradoxically, the consequence of this long-standing notion that ESC rights are non- enforceable has been an absence of any effort on the part of the judiciary in many countries to define principles for their construction. Due to the purely rhetorical value ascribed to these rights, and to the lack of attention paid to their interpreta- tion by the judiciary and legal academics, fewer concepts have been developed that would help to understand rights such as the right to education, the right to an adequate standard of health, the right to adequate housing or the right to food. However, the lack of practical elaboration of many of these rights does not justify the claim that because of some essential or hidden trait, ESC rights, as a whole category, cannot be defined at all. Critics claim that the content of ESC rights cannot

be defined, so little effort has been invested to define their content. The lack of practical elaboration is then used to argue that ESC rights are not justiciable.

If the past deficit of jurisprudence in this area has created difficulties, a growing body of more recent domestic case law is, however, offering better criteria to further specify the content of ESC rights. Supreme court and lower court precedents regarding health, housing, consumer and environmental rights in many countries have begun to foster further litigation in these fields, which was unknown decades ago. Some of these decisions will be examined in detail in later chapters.

Statutory definitions of esC rights

Under the rule of law and the separation of powers, defining the content and scope of a right is primarily the task of the legislative branch and, subsequently, further elaborated by administrative regulations. For example, in the nineteenth century, national parliaments of the continental (or civil) law tradition defined the content, scope and limits of property rights. Civil codes – and similarly, in common law countries, the common law of property, torts and contracts – define the way in which property is acquired, transferred and lost, the prerogatives and the duties of owners of property, and when damage to property should be compensated for or the loss borne by the owner. There is no conceptual obstacle to applying a similar legislative and administrative process to defining ESC rights by developing the same kind of

general, abstract and universal standards. Legislatures can and should explain the scope of ESC rights.

Such an approach has been adopted in some countries where there has been an attempt to give meaning, for example, to the right to health, by defining in law the type and extent of treatment that any health service should provide Once the content of ESC rights has been statutorily defined, the notion that they offer no basis for judicial adjudication begins to look weaker. In many areas, judges decide whether or not the acts or omissions of the authorities break statutory duties. There is also some scope for judges to point out where legislation itself contains omis- sions, gaps or inconsistencies in relation to obligations arising from constitutional or other human rights norms governing ESC rights.

The role of international treaty bodies and international experts in defining the content of esC rights

International expert bodies have also helped to define the content of ESC rights, and provide examples and guidance for local law-making. General Comments issued by treaty bodies such as the UN CESCR and the UN Committee on the Rights of the Child (CRC) offer examples of how the rights set forth in their respective treaties are interpreted by the body mandated to monitor their implementation. The task of drafting and issuing these General Comments is not conceptually different from the work of constitutional courts when they interpret constitutionally based ESC rights. Similarly, some soft law instruments, such as the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles) and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht Guidelines), were developed to clarify the legal duties arising from ESC rights including when they are violated.

‘Monist’ systems

‘Monist’ legal systems, where international law is incorporated directly into the domestic legal system, allow for the immediate domestic application of international treaties. For instance, the Colombian Constitutional Court has made extensive use of both international treaties and non-binding instruments to interpret fundamental rights in the Colombian Constitution.33 Other countries, such as Argentina and Costa Rica, have taken similar approaches. But even in countries with a monist tradition, there may be impediments to the direct application of international law. For instance, while the Dutch legal system is monistic in its approach to international law, judges have considered that treaty standards providing for ESC rights, including those of the ICESCR, are not self-executing.

‘Dualist’ systems

In ‘dualist’ States – that is, in those legal systems where international law is not auto- matically part of domestic law and further steps are needed to incorporate it into national law – the record is also mixed. While in some countries international treaties do not apply until domestic legislation reproduces or refers to the content of a treaty, judges in other countries have developed more creative ways of making use of inter- national standards. For example, even though South Africa is not yet a party to the ICESCR, the South African Constitutional Court has used CESCR’s General Comments to interpret the ESC rights enshrined in the South African Constitution

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§         See, among many others, Colombian Constitutional Court (Corte Constitucional de Colombia) decisions C-936/2003, T-1318/2005, T-403/2006 and T-585/2006 (applying both the ICESCR and GCs adopted by the CESCR).

§         For a discussion of this issue, see Frank Vlemminx, “The Netherlands and the ICESCR: Why Didst Thou Promise Such a Beauteous Day?”, in Fons Coomans (ed.), Justiciability of Economic and Social Rights: Experiences from Domestic System (Antwerp: Intersentia-Maastricht Centre for Human Rights, 2006), pp. 43-65

§         See, for example, Constitutional Court of South Africa, The Government of the Republic of South Africa and others v. Irene Grootboom and others, 2001 (1) SA 46 (CC), October 4, 2000, paras. 29, 30, 31 and 45.

Chapter 03 –

Defining the content of esC rights II: Developments in domestic and international courts and tribunals

This chapter examines how the content of ESC rights has been defined by courts, how the problems posed by the justiciability of ESC rights can be overcome, and how courts have been able to guarantee ESC rights to claimants. It explains a number of mechanisms that have been applied by courts in order to deal with different aspects of ESC rights, providing examples for each approach.

Core content or minimum core duties

The first conceptual element that assists in determining the responsibilities of a State in relation to ESC rights is the idea of core content (also called minimum core content, minimum core obligations,39 minimum threshold or ‘essential content’, as it is known in the German constitutional tradition and the traditions which flow from it). This concept entails a definition of the absolute minimum needed, without which the right would be unrecognizable or meaningless.

The idea of core content has also been employed in analyzing civil and political rights, and especially in the constitutional law tradition. Different constitutional constructions have justified this core requirement as a corollary of the concept of human dignity, or have conceived it as a vital minimum or ‘survival kit’.

The definition of a vital minimum, by its nature, is evolving. The accepted mandatory minimum level may change over time, for example as science and technology advance. This is particularly true with some rights, such as the right to medical treatment and the right to food security, which are, respectively, components of the right to health and the right to food. This is, of course, also the case with civil and political rights: the impact of new technologies, such as surveillance equipment, on the right to privacy is a good example. In relation to some rights, such as the right to education, there is considerable consensus on the minimum core content of the service to be provided by the State – that is, universal, free and compulsory

primary education.

The German Federal Constitutional Court and Federal Administrative Court have provided examples of the ‘minimum core content’ of rights, which are derived from the constitutional principles of the welfare (or social) state and the concept of human dignity. In Germany the courts have decided that these constitutional principles can be translated into positive State obligations to provide an ‘existential minimum’

Duties of immediate effect and duties linked with theprogressive realization of esC rights

Article 2(1) of the ICESCR refers to the progressive realization of the rights enshrined in the treaty.44 The treaty acknowledges, in this sense, that the full realization of the rights recognized within it in many circumstances requires gradual implementation. However, the CESCR has made clear that not every duty arising from the obligations set out in the Covenant is qualified by this idea of progressive realization and that some duties have immediate effect.45 So while some of the duties associated with ESC rights may be qualified by the concept of progressive realization, thus leaving the State some leeway to decide the proper timeframe and allocation of resources according to their availability, other duties must be complied with immediately by the State and no delay is permissible.

This distinction is also relevant for justiciability, because it means that compliance with immediate obligations can directly be assessed by adjudicatory bodies, thereby refuting the idea that the whole content of ESC rights is left to the discretion of the political branches of the State. Duties linked with progressive realization are, in turn, subjected to a different, less stringent, and possibly less coercive, standard of scrutiny. The Colombian Constitutional Court has explicitly taken this approach, distinguishing, when it comes to the interpretation of ESC rights, between duties directly related to the protection of life, which are of immediate effect, and duties regarding the development of services in need of legislative and other actions, which are related to the progressive realization of ESC rights.46 But the Court has also decided that aspects of the rights subjected to progressive realization can be justiciable, if the State has failed to take the adequate measures to progressively realize the right over a reasonable period of time.

Duties of immediate effect

The CESCR has identified some duties as having immediate effect. These include:

Ø      the duty to take steps or adopt measures directed towards the full realization of the rights contained in the ICESCR; and

Ø      the prohibition of discrimination.

These are duties which a State party is immediately required to satisfy once it has ratified the ICESCR. It could also be said that such duties of immediate effect apply in relation to the recognition of ESC rights in a domestic constitution or legal order. The duty to take steps “by all appropriate means”48 certainly includes legislative action, and may also include, but is not limited to, the provision of judicial remedies, and the adoption of administrative, financial, educational and social measures. The Committee has also made it clear that the obligation to take steps includes the duty to draft and adopt a detailed plan of action for progressive implementation.

The existence of duties of immediate effect offers a basis upon which to assess violations of State action and omission. It clearly demonstrates how ESC rights are not purely ‘programmatic’: rather they impose some directly operative obligations. Non-compliance with these duties can then be justiciable. For example, legislation or State action which discriminates against people on illegitimate grounds such as gender, race, national origin, disability or sexual orientation, or which establishes deliberate barriers to the enjoyment of ESC rights, constitute violations of immedi- ately effective duties. Lack of action to realize rights, or to remove discriminatory legislation or practices within a reasonable time, also constitute violations of duties of immediate effect.

The right to housing and duties of immediate effect

A number of courts have felt able to give effect to the principle of duties of immediate effect. Judicial protection against forced eviction is a good example. The right to adequate housing includes positive duties to make housing accessible to people in need, which could require progressive implementation over a period of time. But the State also has an immediate negative duty to refrain from forcefully evicting persons from their housing without legal justification. Even where justi- fied, eviction is prohibited without due compliance with procedural guarantees. The Supreme Courts of India and of Bangladesh have issued significant decisions in this regard, underscoring the importance of the State’s procedural duties which must be complied with as a prerequisite to a lawful eviction.51 For instance, the

Supreme Court of Bangladesh held, inASK v. Bangladesh,52 that before carrying out a massive eviction from an informal settlement, the government should develop a plan for resettlement, allow evictions to occur gradually and take into consideration the ability of those being evicted to find alternative accommodation. The court also held that the authorities must give fair notice before eviction.

The right to work and duties of immediate effect

The right to work also provides some good examples of the justiciability of duties of immediate effect. The prohibition of discrimination, the prohibition of forced labour, the right to fair remuneration, and the right to enjoy conditions of work compatible with human dignity are duties of immediate effect. The African Commission on Human and Peoples’ Rights has considered that even positive obligations to detect and eradicate practices that violate these rights represent immediate duties established by the African Charter on Human and Peoples’ Rights, regardless of the wealth of the country involved. In an important decision involving a low-income country (Mauritania), where allegations where made regarding large scale slave labour, the African Commission stated that:

“Independently from the justification given, by the defendant State, the Commission considers, in line with the provisions of Article 23(3) of the Universal Declaration of Human Rights, that everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. These provisions are complemented by those of Article 7 of the International Covenant on Economic, Social and Cultural Rights

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  • See CESCR General Comment N° 1, Reporting by States parties (Third session, 1989), U.N. Doc. E/1989/22, para. 4; General Comment N° 3, The nature of States parties’ obligations (Fifth session, 1990), U.N. Doc. E/1991/23, para. 11.

  • See Supreme Court of Bangladesh, Ain o Salish Kendra (ASK) v. Government and Bangladesh & Ors 19 BLD (1999) 488, July 29, 2001.

The Inter-American Court of Human Rights has followed a similar path in theItuango Massacres case,54 which also involved, amongst other issues, violations related to the right to work. Following a massacre of the civilian population carried out by paramilitary groups in complicity with members of the Colombian army, the perpetrators stole cattle from the victims, and forced 17 peasants to carry the stolen cattle to territory under the control of the paramilitary groups, without pay and under threat of violence. The Inter-American Court considered that the prohibition of forced labour had immediate effect, and read Article 6.2 (prohibition of forced or compulsory labour) and Article 7 (right to personal liberty) of the American Convention on Human Rights in the light of Convention  of the International Labour Organization, finding that the State was liable for the breach of these rights.

Duties related to the progressive realization of esC rights

The concept of progressive realization gives States considerable leeway and discretion in deciding what steps to take to address issues such as group or target prioritization or budget allocation. However, the CESCR has also made clear that even those duties, qualified by the concept of progressive realization, can generate appropriate review standards. Some of the developments in this area concern the establishment of indicators and benchmarks to assess the improvement, stability or deterioration of the enjoyment of rights or the goals enshrined in the ICESCR. The employment of empirical or outcome indicators is an extremely useful tool for the continued supervision of African Commission on Human and Peoples’ Rights,Malawi African Association and Others v. Mauritania, Comm. Nos. 54/91, 61/91, 98/93, 164/97-196/97 and 210/98 (2000), May 11, 2000, para. 135. 54 See Inter-American Court of Human Rights,Ituango Massacres v. Colombia, July 1, 2006, paras. 145-168.

Non-discrimination and equal protection of the law

An important number of issues relating to the justiciability of ESC rights either involve discrimination claims, or challenges based on unlawful or unreasonable distinctions made by law. The CESCR has made clear that, within the provisions of the ICESCR, the prohibition on discrimination is an obligation of immediate effect. Other international human rights instruments also stress this feature, notably Article of the ICCPR, which makes the equal protection principle applicable to any piece of legislation passed by the State, regardless of its substantive content, including legislation regulating ESC rights. Several clauses enshrined both in the Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the International Convention for the Elimination of All Forms of Discrimination against Women (CEDAW) make explicit reference to their application to ESC rights in the implementation of social policies and the provision of social services. Constitutions in every region of the world contain similar provisions for non-discriminatory and equal treatment.

‘Suspect categories’

An important aspect of the current development of anti-discrimination law is the heightened scrutiny applied to those cases where legislation or administrative practices subject certain groups of people to a disparate treatment, which results in a denial or restriction of rights. The use of specific criteria such as race or gender, to make distinctions to the detriment of groups that have been disadvantaged in the past or continue to be disadvantaged, is considered highly suspect, and therefore such treatment cannot be easily justified. There is thus a presumption that, when these ‘suspect categories’ are used to make legal differentiations it is unacceptable, unless the State shows there is a pressing need to do so. 117  See also Limburg Principles, Principles 13, 22 and 35-41; Maastricht Guidelines, Guidelines 11, 12 and 14(a). In a case involving people internally displaced as a result of armed conflict in Nepal, including women, children, the elderly and people with disabilities, the Supreme Court of Nepal relied on international human rights standards, including the International Covenant on Economic, Social and Cultural Rights and held that the State had the duty to provide relief in a transparent, equal and non-discriminatory manner. Specifically, it required the government to adopt a legal framework, ensuring the appropriate management and delivery of the services and facilities to be provided to the internally displaced.

There is potential to develop new criteria in order to identify other social groups whose different treatment requires a heightened scrutiny – for example, socio- economic status. This could also expand the protection offered by the prohibition of discrimination and the principle of equal protection of the law in the enjoyment of ESC rights.

Non-discrimination and equal protection of the law: case law examples

One of the most famous cases in US constitutional law,Brown v. Board of Education of Topeka,118 concerns the application of the equal protection clause to the right to education. In that case, the US Supreme Court decided that the existence of schools segregated according to racial criteria amounted to a breach of the equal protec- tion clause, and ordered that the school system be overhauled in accordance with the ruling.

Discrimination in the field of housing and social security benefits

In the case ofMs. L. R. et al v. Slovakia,119 CERD found that a municipal decision revoking a housing policy directed towards fulfilling the needs of the Roma population amounted to a discriminatory interference with the right to housing based on grounds of ethnic origin. The United Nations Human Rights Committee (HRC) has also decided cases where the right to equal protection under the law and the prohibition on discrimination were ap