Justiciability & Litigation

Chapter two (p.47-56) is dedicated exclusively to the clarification of justiciability and the challenges of justiciability as a tool for social transformation and inclusion of the most vulnerable. It presents ‘justiciability’ as one of the steps of a holistic strategy to overcome poverty. It defends the role of judges as guarantors of rights and freedoms of the most invisible members of society.

Drawing upon a full range of case law, the report shows that adjudication of economic, social and cultural rights is possible, desirable and already being carried out by courts in all continents. The report addresses the legal and political objections to the justiciability of economic, social and cultural rights and confirms their justiciability.

This paper argues that social and economic rights, defined as rights to the satisfaction of basic needs, are constitutional essentials at domestic level and claims of the highest priority at supranational level. Their inadequate legal protection in national and supranational orders is not justified. Social rights have common foundations with civil and political rights, but have been neglected in law because of Cold War ideologies.

The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (Optional Protocol or OP-ICESCR) entered into force on 5 May 2013. With the Optional Protocol, the international community comes much closer to treating “human rights globally in a fair and equal manner, on the same footing, and with the same emphasis” as required by the Vienna Declaration on Human Rights.

This 'Right to Education Info Packet' on Tanzania aims at informing  about the right to education, its legal, political, and social considerations, and some examples of its potential uses in litigation.

Part I provides an analysis of the various legal issues commonly encountered in economic, social and cultural rights litigation. These include identifying the relevant sources of law, establishing justiciability, defining the nature and scope of rights and obligations, responding to the defences available to governments, and the crafting of appropriate remedies. The next chapters address the right to legal aid for economic, social and cultural rights litigation, specific rights (social security, housing, health and education), as well as the social rights of children.

The 21 case studies discussed in this volume clearly illustrate that a wide variety of economic, social and cultural rights are justiciable.  Moreover, this publication set out many concrete examples where legal action has made a difference and has unquestionably progressed the actual realisation of the rights.

Litigating Economic, Social and Cultural Rights: Achievements, Challenges and Strategies also reveals the many practical and theoretical obstacles that have been encountered in social action litgation.

The report examines questions related to enforcement of the right to education and judicial and quasi-judicial mechanisms. It also highlights the available jurisprudence at the national, regional and international levels, with a focus on some key dimensions of the right to education. In conclusion, the Special Rapporteur offers recommendations for making the justiciability of the right to education and its enforcement more effective.

Many countries have incorporated the right to education in their constitutions. The present article discusses the modalities of how a number of key dimensions of the right to education have been subject to judicial or quasi-judicial review. In other words, it discusses how the courts have dealt with the educational issues brought before them. Such cases do not always use right-to-education language, but generally speaking they deal with two aspects of the right to education, namely the right to receive an education and the right to choose an education.

General Comment 11, adopted by the Committee on Economic, Social and Cultural Rights, provides interpretation and clarification of Article 14 of the International Covenant on Economic, Social and Cultural Rights.

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