JAMR27, The Justiciability
of Indivisible Rights
Lund University, 13 December 2013
Ida Elisabeth Koch
Guest Professor, Lund University
Justiciability
The notion of ’justiciability’ is commonly used in the discussion of the
normative character of socio-economic rights in particular with regard to
the question whether or not these rights can be enforced by judicial or
quasi-judicial bodies. It does not have an unambiguous meaning and it does
not appear in ordinary dictionaries over the English language. The concept
of justiciability is discussed by Martic Scheinin, who identifies a variety of
possible meanings; cf. Martin Scheinin, ‘Justiciability and the Indivisibility
of Human Rights’ in John Squires et al. (eds), The Road to a Remedy:
Current Issues in the Litigation of Economic, Social and Cultural Rights,
Australian Human Rights Centre, The University of New South Wales,
2006, pp. 17-26. Cf. also Ida Elisabeth Koch, Human Rights as Indivisible
Rights - The Protection of Socio-Economic Rights under the European
Convention on Human Rights, Chapter 10
Justiciability
1) The role of national authorities/domestic Implementation
2) The UN’s Treaty based monitoring System
3) COE Treaty based monitoring and complaints system
Remedies, the Role of National Authorities
ICCPR, Article 2 (3)
ICESCR: No remedies requirement
ECHR, Article 13 and Article 6
(R)ESC : No remedies requirement
ICESCR and (R)ESC: Why no remedies requirement?
Domestic case law
Three different approaches:
1) Fusa case (Norway) (minimum core rights)
2) Grootmann case (SA) (reasonableness)
3) Discrimination
Norwegian Supreme Court Judgment of 25 September 1990
The Fusa case
Concerning the validity of a decision limiting the amount of home care and
domestic help to a severely disabled woman.
The municipality had far-reaching discretionary powers
However, despite the fact that the municipal budget was overstretched, the
municipality had to respect a certain minimum standard
Note that the Supreme Court did not define the minimum standard. The
case was sent back to the municipality with the message. This is not good
enough. Try again
Domestic case law
Three different approaches:
1) Fusa case (Norway) (minimum core rights)
2) Grootmann case (SA) (reasonableness)
3) Discrimination
South African Constitution (1996)
Housing
26. (1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within its
available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary evictions.
Emphasis by Ida
Grootboom v. South Africa (2001)
The Court emphasised that neither section 26 nor section 28(1)(c) gave any
of the respondents the right to claim shelter immediately. However, the
programme in force in the area of the Cape Metropolitan Council at the
time the application was launched fell short of the obligations imposed
upon the state by section 26. Although the overall housing programme
implemented by the State since 1994 had resulted in a significant number
of homes being built, it failed to provide for any form of temporary relief to
those in desperate need, with no roof over their heads, or living in crisis
conditions. Their immediate need could be met by relief short of housing
which fulfils the requisite standards of durability, habitability and stability.
Emphasis by Ida
Grootboom case (2001)
A given measure will pass the reasonableness test if it is comprehensive
and well coordinated;
is capable of facilitating the right in question albeit on a progressive basis;
is balanced, flexible
and does not exclude a significant segment of society; and responds to the
urgent needs of those in desperate circumstances.
Grootboom case (2001)
In the present case, it was held that, although the programme satisfied all
the other requirements of the reasonableness test, it was nevertheless
unreasonable in that "no provision was made for relief to the categories of
people in desperate need". The state was therefore found to be in violation
of section 26(2) of the Constitution. Accordingly, a declaratory order was
made requiring the government to act to meet the obligations imposed on it
by section 26(2), which included the obligation to devise, fund, implement
and supervise measures aimed at providing relief to those in desperate
need.
Amartya Sen, Metarights
Amartya Sen speaks of metarights. He explains that “[a]
metaright to something x can be defined as the right to have
policies p (x) that genuinely pursue the objective of making
the right to x realisable.” The metaright e.g. to food serves the
purpose of giving “a person the right to demand that policy be
directed towards securing the objective of making the right to
adequate means a realisable right, even if that objective cannot
be immediately achieved. It is a right of a different kind: not to
x but to p (x). I propose to call a right to p (x) a metaright to
x”, Amartya Sen, “The right not to be hungry” in P. Alston et
al. (eds.), The Right to Food, 1984, pp. 69–81 (on p. 70).
Domestic case law
Three different approaches:
1) Fusa case (Norway) (minimum core rights)
2) Grootmann case (SA) (reasonableness)
3) Discrimination (Brown v. Board of Education)
Brown v. Board of Education (1954)
Constitutional Issues
The central question addressed to the Court involved the Equal Protection
Clause of the 14th Amendment.
Decision and Rationale
For a unanimous Court (9-0), Chief Justice Warren wrote in his first and
probably most significant decision, “[S]egregation [in public education] is a
denial of the equal protection of the laws.” Warren declared: “To separate
[some children] from others of similar age and qualifications solely because
of their race generates a feeling of inferiority as to their status in the
community that may affect their hearts and minds in a way unlikely ever to
be undone.”
The issue today is not whether judicial bodies have a say in
disputes concerning resource demanding issues but where to
draw the line between judicial and legislative powers when the
disputed measures are resource demanding and the legal basis
vaguely worded.
Why are socio-ecomomic norms vaguely worded, cf.
eg. Art 2(1) of ICESCR?
Each State Party to the present Covenant undertakes to take
steps [....] with a view to achieving progressively the full
realisation of the right recognised in the present Covenant by
all appropriate means including particularly the adotion of
legislative measures.
Division of powers. Who controls who?
Legislature
Executive
Judiciary
An extra dimension is added when the controlling body is not
a domestic body but an international treaty body
Interpretation of Socio-Economic Right
CESCR General Comment No 3
CESCR General Comments 9
The Limburg Priciples, 1986
The Maastricht Guidelines, 1997
The Reasonableness Approach, OP to ICESCR, 2008
UN treaty based monitoring bodies
ICCPR
OP (ind. complaints)
ICESCR
CEDAW
CAT
CRC
CRPD
OP (ind. complaints) not yet in force
OP (ind. complaints)
OP (ind. complaints)
OP (ind. complaints)
The Optional Protocol to the ICESCR
The reasonableness approach
Optional Protocol to the ICESCR, Article 8 (2008)
When examining communications under the present protocol, the
Committee shall consider the reasonableness of the steps taken by the State
Party in accordance with Part II of the Covenant. In doing so the Committe
shall bear in mind that the State Party may adopt a range of possible policy
measures for the implementation of the rights set forth in the Covenant.
Emphasis by Ida
COE treaty based monitoring systems
The European Committee for Social Rights
Reporting system
Collective Complaints
European Court of Human Rights
Individual Complaints