Enforceability of Economic

and Social Rights (ESR)

Lecture 4
International Law of Human Rights
• Thesis: It is not Desirable or Practically Possible to Adjudicate Cases
Relating to Economic and Social Rights Due to Their Progressive and
Resource-intensive Nature.
Introduction
• Examining the desirability or possibility of the adjudication of Economic and
Social Rights (ESR) given their stated progressive and resource-intensive nature.
• Arguments:
• ESR can be adjudicated as like civil and political rights though in diverse ways and
the horizon of adjudicating ESR is expanding.
• Objection to adjudication of ESR based on their resource-intensive nature tends
to be mala fide, political and prejudiced
• Jurisprudential and normative perspective regarding adjudication of ESR
• National and international adjudicability of ESR
• Relevant cases
• Findings:
• Civil and political rights can be resource-intensive too as like ESR
though with a variant degree and they are also subject to progressive
realisation. Therefore, two sets of rights cannot be treated differently
on the question of adjudication.
• Right to housing, right to health, right to education, right to medical
treatment, right to food, right to water, right to environment have
been adjudicated in several jurisdictions.
• Adjudication of ESR has led to the effective implementation of them.
Jurisprudential and Normative Argument

• Positive and Negative Obligations

• ESR are considered to warrant positive obligations only and therefore,
resource-intensive; whereas civil and political rights are considered to
enjoin negative obligations only.
• The latter category is thought to be costless or resource-independent
and always realisable. However, all human rights require a
combination of negative and positive conduct from states and varying
levels of resources.
• States have duty to fulfill, respect and protect ESR. Duty to respect
and protect entail negative obligations.
• For instance, obligation to protect from eviction, protection from
denial of available medicines and medical treatment, protection from
disconnection of water supply by the state.
• Olga Tellis & Ors v Bombay Municipal Corporation [1985] 2 Supp SCR
51; President of the Republic of South Africa & Another v Modderklip
Boerdery (Pty) Ltd 2005 (5) SA 3 (CC).
• Minister of Health & Others v Treatment Action Campaign & Others
2002 (10) BCLR 1033 (CC).
• Residents of Bon Vista Mansions v Southern Metropolitan Local
Council 2002 (6) BCLR 625 (W).
• Adjudication of these ESR, ie right to housing, right to medical
treatment and right to water, entailing negative obligations is
practically possible since it does not require resources.
• On the other hand, civil and political rights include positive obligations
and require resources as well, for example, in case of exercising voting
right or in case of right to fair trial. The full realisation of civil and
political rights is heavily dependent both on the availability of
resources and the development of the necessary societal structures.
• However, the expenses in respect of the civil and political rights are
not questioned as it is done in case of the ESR. Therefore, treating
these two sets of rights differently, based on resource-intensiveness,
on the question of adjudication is not jurisprudentially and
normatively sound. Such differentiation between them is neither
warranted by the nature of the rights nor by the relevant
international law provisions.
• These two categories of rights are inseparable and inter-dependent
and require one another to be fully realised. Though it has been
argued by many conservative and libertarian theorists that ESR are
not rights at all on the ground of being impracticable and too
expensive, however, this argument does not gain ground at present
since ESR are widely documented now. Western states and NGOs, in
particular, have tended to treat ESR as if they were less important
than civil and political rights. This discrepancy is arbitrary.
Adjudication of Economic and Social Rights at the National Level

• The examples of adjudicable or justiciable ESR exist in the

constitutions of a number of states. For instance, Argentina,
Colombia, Egypt, Germany, Indonesia, Latvia and South Africa have
made ESR part of their national law, which can be, and have been,
adjudicated by the courts. South Africa has taken a leading role in the
national adjudication of ESR.
Types of Adjudication
• There can be two types of adjudication of ESR namely direct
adjudication and indirect adjudication. Direct adjudication takes place
in a jurisdiction where ESR are placed as justiciable in the
constitution; whereas indirect adjudication is a device by which non-
justiciable ESR can be adjudicated by including them within justiciable
civil and political rights without affecting the objections against
adjudication of ESR. For instance, right to life includes right to food,
right to water, right to housing, right to health, right to clean
environment etc.
• In many cases the Indian Supreme Court fused ESR with civil and
political rights and observed, what is remarkable, that a lack of
financial resources does not excuse a failure to provide adequate
services.
• In Bangladesh, after the adjudication of right to life, entailing right to
safe water, in the case of Rabiya Bhuiyan, MP v LGRD, 59 DLR (AD)
176, arsenic-contaminated water sources were sealed by the
government to prevent the spread of disease. This would not have
happened in the absence of the decision in this case.
• Thus, it was possible to adjudicate, though indirectly, and implement
right to safe water even though the argument of ‘progressive and
resource-intensive nature’ of ESR was still there. Thus, adjudication of
a particular ESR did not have conflict with the argued progressive and
resource-intensive nature of them. In this case, though right to safe
water was indirectly adjudicated, however, the govt. was given
necessary time to implement it. This flexibility given by the court in
implementing an adjudicated ESR is the core thing of adjudication
argument of ESR.
• There is no conflict between ‘adjudication’ and ‘progressive
implementation’. Adjudication can be the first step towards
progressive implementation. Adjudication facilitates progressive
implementation by enabling the court to oversee the measures taken
by the state to implement ESR.
• There is sufficient evidence that legal action could have a positive and
sustainable impact on the achievement of ESR. For example, several
judgments increased the access and availability of medical treatment
to citizens in India. The Indian Supreme Court has successfully
adjudicated right to water, right to housing, right to livelihood, right to
education, right to medical treatment which greatly facilitated the
progressive implementation of these ESR.
• See, for example, People’s Union for Civil Liberties (PUCL) v Union of
India (2001) 7 SCALE 484; J.P. Unikrishnan v State of Andhra Pradesh
1993 (1) SCC 645.
• Thus, progressive implementation is not negatively affected by
adjudication rather it is ensured by it if that argument of progressive
implementation was taken in good faith at all at the first place.
Therefore, adjudication of ESR is desirable even for the effective
progressive implementation of them.
• Adjudication can also be in a declaratory (flexible) or mandatory (hard) manner.
• It can also be either substantive or minimal, the latter refers to adjudication to
fulfill minimum core obligation which the particular state has been evading
indifferently or deceitfully.
• Minimal adjudication is highly desirable and practically possible. The core
content of the right to health, for instance, consists of a number of basic health
services. When such core elements of a right are at stake in a case, a higher
degree of justification is required from the government to justify non-
implementation and it becomes duty of a court to apply a more profound
measure of scrutiny. State’s duties in relation to minimum core obligations are
not in any way eliminated as a result of resource constraints.
• The Indian Supreme Court held that when it comes to the
enforcement of a human right the court would not entertain an
inquiry into the perverse expenditure logic of the state departments.
• Ratlam Municipality v Vardichand and Others 1981 SCR (1) 97.
• It is also desirable to adjudicate ESR because without justiciability
they are not even rights, however, they are recognized as rights in
international law.
• Adjudication is also desirable to reveal the true situation regarding
availability of resources. It was seen in a case that there was denial,
by the state, of access to an available medical treatment. Thus, the
state may lie about the availability of resources which attracts judicial
scrutiny.
• Minister of Health & Others v Treatment Action Campaign & Others
2002 (10) BCLR 1033 (CC).
Differentiation on ESR
• There should be some differentiation, based on necessity, of ESR on
the question of adjudication. For example, the argument of resource-
intensiveness cannot be raised in case of a person who needs
emergency medical treatment or who is starving or whose water
source has been contaminated by industrial wastes. These cases are
to be considered on a different footing than the general obligations of
the state to make medicines, food and safe water available to every
citizen.
• Justice Yacoob observed that the state is obliged to take positive
action to meet the needs of those living in extreme conditions of
poverty, homelessness or intolerable housing. If a child does not have
parents or the parents fail to support the child, the state has an
obligation to assist or provide.
• The judgment in the Auton (Guardian ad idem of) v British Columbia
(Minister of Health) (2000) 78 B.C.L.R. (3d) 55 (B.C.S.C.) implies that a
lack of ‘available resources’ is not an excuse for refraining from
funding a particular treatment. In these situations adjudication of ESR
is desirable if the state fails to fulfill its obligations.
‘Progressive implementation’ vs. Immediate
Adjudication
• ‘Progressive implementation’ tends to be wide, discretionary, flexible,
vague and indefinite terms, therefore leads to the uncertainty of
economic and social entitlements of the citizens. However, in contrast
with this argument, immediate adjudication of certain ESR is possible.
The right to work provides some good examples of the justiciability of
obligations 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
obligations of immediate effect.
• The UN Committee on Economic, Social and Cultural Rights (CESCR)
considers many of the provisions in the International Covenant on
Economic, Social and Cultural Rights (ICESCR) to be capable of
immediate implementation.
Adjudication of ESR at the International Level

• Economic and social rights are enshrined in the Universal Declaration of

Human Rights (UDHR) and in various treaties, including the ICESCR. Article 8
of the UDHR recognised a right to a remedy for violations of all human rights.
• Though there was gap in ICESCR regarding judicial remedy of ESR violations,
the Optional Protocol to the Covenant made it up. The Optional Protocol to
the ICESCR , 2008 provides for the right of individuals and groups of
individuals to complain of violations of the rights contained in the Covenant.
• When people of the ratifying states of the Protocol do not have access to
justice due to legal bar, or are aggrieved by the decisions of the courts, in
their country, for violations of ESR, they can bring a complaint to the CESCR
(Committee on Economic, Social and Cultural Rights).
• It was acknowledged by the International Court of Justice (ICJ) that
the rights enshrined in the ICESCR are justiciable on the level of
international law. Unlike many national jurisdictions, ESR are
adjudicable by the express provisions of different international
treaties. The states which ratify those treaties are bound by their
provisions.
• It has already been seen that cases relating to ESR have been
adjudicated by different courts at the regional level.
• See, for example, Mayagna (Sumo) Awas Tingni Community v
Nicaragua, IACHR Series C No 79, 31st August 2001 (IACtHR); Yakye
Axa Indigenous Community v Paraguay, IACHR Series C no 125, 17th
June 2005 (IACtHR).
• Until recently, for example, no State Party has challenged the
jurisdiction of the Court regarding ESC rights claims under Article 26
of The American Convention on Human Rights 1969 (ACHR).
• International judicial authorities have been seen to decide on the
matter of ESR in line with the jurisprudence developed at the national
level; for example, indirect adjudication of ESR has been resorted to in
a number of cases at the regional level.
• See, for example, Otgon v Republic of Moldova ECHR 343 (2016); D. v
the United Kingdom No 30240/96 (ECHR, 2 May 1997); Vilnes and
Others v Norway No 52806/09 and 22703/10 (ECHR 5 Dec 2013);
Brincat and Others v Malta Applications nos 60908/11, 62110/11,
62129/11, 62312/11 and 62338/11 (ECHR 24 July 2014); Oyal v Turkey
App no 4864/05 (ECHR 23 March 2010).
Conclusion
• The question here regarding adjudication is not how to do it, rather if
it should be, or can be, done. The answer is in the affirmative.
Adjudicating ESR entailing negative obligations does not require
resources. It is just to direct the govt. to maintain the status quo.
Therefore, it is practically possible and desirable to adjudicate those
ESR.