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 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. In particular, the OP-ICESCR creates a mechanism whereby rights holders can submit complaints of violations of any of their economic, social and cultural rights and hold States accountable to their obligations under the Covenant to respect, protect, and fulfill Covenant rights, including the human rights to education. This procedure will also provide further clarity on the content of human rights in different contexts, resulting in greater guidance for governments that seek to implement the International Covenant on Economic, Social and Cultural Rights in good faith.
The objective of this manual is to provide theoretical and practical information for lawyers and other advocates interested in utilizing the OP-ICESCR as a means to enforce economic, social and cultural rights, including the right to eduxcation. A related aim of this manual is to contribute to the growing network of advocates using strategic litigation to advance ESC rights protections, by supporting ongoing exchange and collaboration.
This article considers the question of the justiciability of social and economic rights from both a conceptual and an experiential perspective. It first reviews some of the major concerns that are frequently raised in relation to whether social and economic rights can, or should be, adjudicated by courts, drawing on commentary from experts and judicial and quasi-judicial bodies considering this question. This is followed by an overview of the growing body of jurisprudence from domestic courts and regional and international bodies that have adjudicated social and economic rights.
This article critically evaluates case-law developments regarding the right to basic education as enshrined in the South African Constitution and argues that litigation, or at the least the threat of it, plays an important role in the realisation of the right to education.
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 publication is intended to support everybody that works in the basic education field in South Africa. It aims to provide a common legally grounded planning, monitoring and advocacy framework that is child-centred and recognises the interconnectedness of human rights.
This Guide will inspire and help judges and lawyers working at national level to litigate cases involving economic, social and cultural rights.
In particular, it aims at giving examples from a large variety of countries and jurisdictions of how courts and other bodies have dealt with the adjudication of these rights.
The Guide also addresses issues that legal practitioners are faced with at the different phases of litigation, from initiating a case and evidence building to the provision of remedies and the enforcement of judicial decisions.
Please note, that this Guide is an updated version of Courts and the Legal Enforcement of Economic, Social and Cultural Rights. Comparative Experiences of Justiciability.
In addition to the electronic version of the Guide in a book format, the ICJ has also launched a searchable online version that is accessible on the ESCR page.
This publication includes an overview of key right to education decisions made by the Inter-American Court of Human Rights, the European Court of Human Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the UN Human Rights Committee. They are judgments that have taken place in these courts from 1988 to 2014 and deal with the fulfilment of the right to education for various groups, such as people with disabilities, migrants, persons deprived of liberty and Indigenous Peoples.
The Summaries of Jurisprudence series has been published since 2010. This recent publication is available for download via the following websites (in both Spanish and English):
The following articles relevant to the justiciability of the right to education can be found in this INTERIGHTS Bulletin:
- Diokno, MSI (2007) Short-changing the Right to Education in the Philippines,
- Ribeiro, RM (2007) Securing the Right to Education in Brazil: A Brief Overview of the Role of the Courts
- Courtis, C (2007) The Right to Education in the Jurisprudence of the Inter-American Court of Human Rights
- Cojocariu, C (2007) Racial Discrimination against Roma Children in Schools: Recent Developments from Courts in Bulgaria and Hungary
The following article is relevant to the right to education of minorities:
- de Varennes, F (2007) Language Rights in Education