The implementation of economic, social and cultural rights and justice
The realization of economic, social and cultural rights (ESCR) requires an adequate regulatory framework and effective public policies. In this respect, the last two decades have witnessed a significant progress, especially in newly adopted or amended constitutions which aimed to achieve a wide range of rights, including all or part of ESCR recognized in international law.
Legislation and case law relating to ESCR have grown significantly at the national, regional and global levels. This growing acceptance of the feasibility of a legal and judicial protection by States and the international community of ESCR has found its most symbolic expression in the adoption in 2008 of the Optional Protocol to the International Covenant on Economic Social and Cultural Rights (ICESCR) and its entry into force on 5 May 2013. This milestone represents a historic step forward in the protection of ESCR, as it will allow individuals who have not been able to get justice at the national level, to seek remedy before a UN body.
Despite these global developments, legal and political challenges remain significant and are related mainly to legislative gaps, administrative inefficiencies and unsuitable legal proceedings. However, courts and semi-judicial bodies have a key role in the implementation of ESCR: They provide not only a remedy in individual cases, but can also contribute to significant changes in the law and national policies for the realization of ESC rights.
In some cases, judicial and administrative decisions have led to a tangible improvement in the lives and well being of victims. For example, by giving children access to school canteens or patients access to treatments and life-saving drugs. However, courts frequently encounter difficulties, or have doubts about their role in protecting these rights. This is for example the case when a case has important implications for public finances, or when it involves a conflict between state’s development programmes, public interest and the rights and interests of local communities.
In addition, procedural obstacles remain in states where the legal systems do not have clear constitutional or legislative guarantees of ESCR; or when these systems do not provide rights holders readily available mechanisms of redress; or even in states where there are no laws or procedures by which individuals can claim their rights or where there is no scope for collective litigation.
The fundamental questions that a dialogue must address on the implementation of ESCR and justice correspond to the major challenges still to be surmounted in this area. In this regard, among the key challenges that lie ahead include:
- Lack of political will and the prejudice against the nature and implications of ESCR and their "justifiability";
- Lack of incorporation and protection of ESCR in national laws as guaranteed by international law;
- Lack of in-depth knowledge about these rights by the justice stakeholders (especially judges and lawyers);
- Court’s proceedings do not facilitate access to justice by victims of human rights violations because they are often not adapted to the reality experienced by these victims and to their needs;
- Need for dialogue between the actors involved in the development and monitoring of public policies and stakeholders in justice.
This theme is proposed by the International Commission of Jurists.