Justiciability of Economic, Social and Cultural Rights
JUSTICIABILITY OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
Content I. Introduction II. Conceptual Barriers of Judicial Enforcement A. Nature of State Obligations B. Separation of Powers III. Practical Issues A. Complexity of Adjudication B. Institutional Competence C. Remedies and Implementation D. Resource Scarcity
IV. Potentials for Justiciability
A. Minimum Core Rights B. Integrated Approach C. Special Forms of Remedies V. Conclusions Bibliography
I. Introduction
Traditionally, international human rights law has branded economic social and cultural rights as second generation, non-justiciable rights, in contrast with civil and political rights. Supporters of traditional view argue that these are rights too vague to determine their violations. It is also frequently said that courts lack democratic legitimacy to intervene in social policy matters and that courts do not have ability to understand and adjudicate the complex issues involved. Many governments and scholars have, therefore, rejected judicial enforcement of these rights as the most expensive and practically impossible to implement.
Despite this tradition of hierarchy, these rights have increasingly gained recognition at international stage and national levels. The urgencies of social disparities have pushed international community to act for realization of socio-economic rights. The essential element of such realization is accepting justiciability of these rights. Proponents of complaints mechanism have long argued that the absence of strong enforcement mechanisms has marginalized socio-economic rights, and that these rights are equally fit for enforcement by courts.
This essay dwells on this question of justiciability and analyses arguments on both sides. Part II examines the non-justiciability
Content I. Introduction II. Conceptual Barriers of Judicial Enforcement A. Nature of State Obligations B. Separation of Powers III. Practical Issues A. Complexity of Adjudication B. Institutional Competence C. Remedies and Implementation D. Resource Scarcity
IV. Potentials for Justiciability
A. Minimum Core Rights B. Integrated Approach C. Special Forms of Remedies V. Conclusions Bibliography
I. Introduction
Traditionally, international human rights law has branded economic social and cultural rights as second generation, non-justiciable rights, in contrast with civil and political rights. Supporters of traditional view argue that these are rights too vague to determine their violations. It is also frequently said that courts lack democratic legitimacy to intervene in social policy matters and that courts do not have ability to understand and adjudicate the complex issues involved. Many governments and scholars have, therefore, rejected judicial enforcement of these rights as the most expensive and practically impossible to implement.
Despite this tradition of hierarchy, these rights have increasingly gained recognition at international stage and national levels. The urgencies of social disparities have pushed international community to act for realization of socio-economic rights. The essential element of such realization is accepting justiciability of these rights. Proponents of complaints mechanism have long argued that the absence of strong enforcement mechanisms has marginalized socio-economic rights, and that these rights are equally fit for enforcement by courts.
This essay dwells on this question of justiciability and analyses arguments on both sides. Part II examines the non-justiciability