Volume 1, Issue 1
Beyond Justiciability: Economic, Social and Cultural Rights on the advance as exponents of a dignified humanity 1
Helene Albrecht

In the course of the Vienna World Conference in 1993, the UN Committee on Economic, Social and Cultural Rights Committee2 addressed the unsatisfactory role economic, social and cultural rights have played in political and societal awareness since their codification and complained that 'violations of civil and political rights continue to be treated as though they were far more serious and more patently intolerable than massive and direct denials of economic, social and cultural rights.'3 While outrages as a reaction to economic and social shortcomings in times of austerity increasingly form part of our daily lives, not to mention their relevance in the face of environmental disasters4 , public consciousness that these conditions are addressed in forms of legally binding obligations in international and regional treaties can be found wanting, if not lacking altogether. According to Leckie, it is still commonplace, that 'when people die of hunger or thirst, or when thousands of urban poor and rural dwellers are evicted the world still tends to blame nameless economic or 'developmental' forces, or the simple inevitability of human deprivation, before placing liability at the doorstep of the state'.5 However, the above mentioned firm legal basis provides an anchorage with potential for new and enhanced discussions as to the scope of socio, economic and cultural rights combined with an increasing recognition of available options for their overall enforcement at national levels.

This article seeks to analyse the current situation of socio-economic rights in a complex setting and therefore adopts a bipartite structure. In its first part it looks at the history and reasons for a division of rights since their codification in the International Bill of Rights 6 and their congruent differentiated implementation and adjudication methods. Focus lays on the comprehensive work the CESCR7 has performed while safeguarding the universality of all rights and their interdependencies. An illustration of the diversity and creativity in responses of legal scholars and practioners follows in regard to judicial enforcement of Economic, Social and Cultural Rights8 . Yet, this highly topical justiciability debate9 also suggests that socio-economic rights cannot only be accommodated in legal and administrative fields but rather demand responsibilities from further players.10 Consequently, the second part of the paper looks at shifts in attitudes towards human rights law which may involve profoundly altering societal behaviour. New actors such as corporates and financial institutes and movements such as feminism and regionalism contribute to a new role economic, social and cultural rights could, and indeed should, play in the enhancement and protection of our humane future. The multi-layer approach embraces a change which is already on the horizon and which has the potential to be fully developed in order to overcome the unsustainable position everybody's economic and social rights still obtain at present.

Part 1: The divided regime of civil and political rights and economic, social and cultural rights

1. The drafting process of the Universal Declaration of Human Rights11

As is well-known, we owe the first international document universally embracing human rights to the atrocities of the Second World War.12 However, origins and causes for the war as such cannot exclusively be reduced to the abysses of human nature: the economically disastrous situation after the First World War, particularly in Germany, virtually induced a second catastrophe. The British economist JM Keynes 13 depicts a clear analysis of the disastrous economic situation of Europe pre World War 1 accruing from incapacities to manage accumulated wealth and capital markets while facing growing populations and food shortages; the author being official representative and Chancellor of the Exchequer on the Supreme Economic Council resigned 'when it became evident that hope could no longer be entertained of substantial modification in the draft terms of peace.'14 Despite of this background, debates as to whether civil and political rights have to be warranted first in order to protect socio-economic well-being or the other way round accompanied the drafting process of the Universal Declaration of Human Rights.15

The arguments took three major points of view which can be traced into current discussions. The first saw the foundations of all rights in fundamental freedoms, such as the freedom of speech, without which no other rights could be developed 16 ; the view has in recent years most famously been expressed by Amartya Sen, reiterating that 'no substantial famine has ever occurred in a country that is independent, that has systematic multiparty elections, that has opposition parties to voice criticisms, and that permits newspapers to report freely and to question without extensive censorship the wisdom of current government policies.'17 A second view admitted that political rights come first; however, as civilisation had moved on to be accommodated in complex economic-social systems, 'the declaration of the rights of men must be extended to the economic and social fields.'18 A third view polarised in favour of socio-economic rights stating that 'the common man was only interested in freedom of speech (...) when he was protected against poverty'19 . This exactly reflected F.D. Roosevelt's famous speech in 1941 where he proclaimed the 'freedom from want' as one of the four freedoms and explained that '[we] have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.'20 Although in the drafting process of the UDHR the order and emphasis of both civil political rights and economic social rights were debated in such vivid terms, the participants were convinced that 'all articles in the declaration were equal regardless of their position'; for Marsink who meticulously describes the 'travaux preperatoires' surrounding the drafting process there was no 'lingering doubt about the drafters' belief that there were not two kinds of human rights(...)',rather the understanding that 'each alleged set constantly fed on each other and cannot be separated out.'' 21

However, the self-understanding and consciously taken unity of the UDHR as a non-binding instrument was not confirmed in the decision to draw up two successive covenants, the ICCPR and the ICESCR22 , which were intended to finally confer legally binding force to the UDHR's articles, constituting 'the bedrock of the international normative regime for human rights'.23 It has to be recalled that although at the drafting stage of the Covenants tribute was paid to different ways of interpretation of all rights under different political regimes, the separation process was not meant to up- or downgrade a particular class of rights.24

2. The Bill of Rights and the specific nature of socio-economic rights

In the 'Annotations on the Text of the Draft International Covenants on Human Rights'25 the entire catalogue of later often-cited objections against the CESCR is explored: while 'civil and political rights were enforceable, or justiciable, or of an absolute character', economic, social and cultural rights 'were not or might not be';26 while the former were rights which would protect from State interference, the latter urged the State to take positive actions; while civil and political rights were directly enforceable legal rights, economic, social and cultural rights had to be programmatic, meaning that they required long-term strategies and observance for their promotion. The distinctions manifest themselves in the wording of Article 2 of each of the Covenants and have subsequently led to different forms of implementation: while under the ICCPR State parties are obliged to 'respect and ensure' the rights and to 'provide effective remedies' in case of violations27 , provisions under the ICESCR presume that the State parties 'take steps, individually and through international assistance and co-operation, especially economic and technical , to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure'.28 However, some observations of the specific nature of socio-economic rights identify overlaps and commonalities between both Covenants and further emphasise their common ground and purpose.


The right of self-determination is the starting point of both Covenants. The article in itself unifies civil-political and socio, economic and cultural aspects when it provides that all peoples shall 'freely determine their political status and freely pursue their economic, social and cultural development.' 29 In addition it also covers the category of 3rdgeneration rights and in this capacity underlines the universality of all classes of rights, albeit with parallel implications for its judicial enforcement: for the Human Rights Council 'it seems certain that violations of Article 1 cannot be the subject of a complaint under the first Optional Protocol' of the ICCPR; the Council has rather ' taken the position that as a right belonging to peoples, it is not open to individuals to claim to be victims of the right to self-determination.'30 However, it has the potential to become increasingly significant in the interplay of economic organisation and human right protection as expressed in the 'Declaration on the Establishment of a New International Economic Order' that 'no state may be subjected to economic, political or any other type of coercion to prevent the free and full exercise of this alienable right.'31 The document provides for the 'right of every country to adopt the economic and social system that it deems the most appropriate for its own development' which entails 'regulation and supervision of the activities of transnational corporations by taking measures in the interest of the national economies of the countries'.32

For Scott, universality of classes of rights does not become clear in their interpretation in an 'abstract sphere' but rather in 'integrated consideration' and 'cooperative institutional experimentation' of different treaty bodies.'33 He finds the interplay of particularity and universality of rights in different contexts: the prohibition of 'discrimination based on race, colour, and related grounds' is to be found in numerous treaties;34 the same is true for protective children rights and the rights of women.35 Thereby understanding of the particular of a right provision is enhanced in the light of the universal, and vice versa.


The rights to housing, health, education and work are cornerstones of each government's policy and, if decided on by an unelected judiciary, raise important problems of the separation of powers; they bring about a radical nature of [the] new responsibilities for judges that would be created by this encroachment into the legislative sphere.'36 However, these rights also dovetail with each other and with other fundamental rights: without a right to adequate housing, a right to health may be jeopardised; without a right to work neither the right to health nor to housing are sufficiently secured; the refusal of any of these rights may finally entail the loss of the right to life or the right to respect for family life. Under the European Convention the House of Lords held that a State's failure to make welfare provision may be breaching a civil political right; in other words a 'complaint about a wholly insufficient amount of pension and other social benefits may, in principle raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment.'37 As illustrated below, these overlaps have fuelled lawyers' imagination and led to creativity in decisions and analysis; they have otherwise re-enforced the criticism of the uncertain and open-ended nature of socio-economic rights.38

The positive-negative rights argument

As has been mentioned above, fundamental rights are regarded to fall into different classes which distinguish them from each other. Human rights law often refers to 'three generations' rights putting civil and political, socio-economic and group rights in a successive order.39 As mentioned above, the most common distinction separates positive from negative rights: those rights which impose the obligation on States not to interfere in the exercise of these rights by their citizens are called 'negative rights', whereas rights requiring States to take specific action for their realisation accordingly are 'positive rights'.40

The aversion to positive rights derives on the one hand from belief in the powers of free and self-regulating markets41 and on the other hand from fears of opening floodgates for a redistribution of wealth if States' interference were to protect socio-economic rights.42 However, it might well be that costs are rather re-distributed than avoided. Until recently a country like Sweden having one of the strongest protections of socio-economic rights had very little litigation. Since the government has started to cut back social welfare expenditure, the 'courts have recently began to take a more assertive role in adjucating matters such as housing'.43 It is obvious that 'the enforcement of civil and political rights also requires resource expenditure'; the right to a fair trial involves cost for legal aid and can in general be 'a financially demanding obligation.'44 What is more, the right to housing can be seen as a negative right if the court is asked to avoid evictions whereas the right to life imposes a positive obligation if it is about life-saving medication.' 45

The implementation of the ICESCR

As mentioned above the fundamental difference between the ICCPR and the ICESCR relates to their respective legal and programmatic status,46 the latter of which must often be conceived in a complicated structural and political setting according to the context of specific substantive rights. Though both Covenants accommodate a submission procedure for State reports,47 only civil and political rights are currently supported by an individual complaints procedure.48 The monitoring systems of both Covenants have been revised several times and may raise concern as to their efficiency.49 However, while the ICESCR is deemed to obtain the weaker part of both covenants as it is not represented by a treaty-based body50 , increasing competence and activities of the CESCR have made a virtue of necessity: starting with the Limburg Principles51 , the CESCR created a considerable body of jurisprudence.52 Its progressive tenor becomes particularly apparent in its General Comments on particular provisions of the ICESCR which clearly define both the obligations for State Parties53 and need for remedies at domestic courts54 .

There are other comments addressing controversial and sensitive subjects such as the right to food, the right to water 55 and the to date neglected class of cultural rights.56 The Limburg Principles provide clear guidelines to the required extent of State Parties' commitment, the need for involvement of the broader public, the need for quantitative information and indicators and the wish to be supported by economic and technical co-operation; 57 they 'have proven very useful to human rights advocates over the past of the norms of the IESCR within domestic legal spheres.' 58 Nevertheless, in 1997 experts felt urged to refine and expand on these guidelines as social conditions since the adoption of the Limburg Principles had aggravated59 . Precise figures point to alarming deficiencies in social rights protection worldwide, on grounds of which the experts' analysis contrasts economic and political developments since the end of the Cold War with concurrent achievements in the emergence of jurisprudence in this area.

While the decrease in State power related to an unqualified reliance on the functioning of the market is undeniable, accountability for social rights obligations have to be addressed.60 Subsequently the focal point of the principles is the reinstatement of 'the three-pronged obligations of states under international law',61 namely 'the obligations to respect, to protect and to fulfil'62 and to connect these to 'obligations of conduct and of result' for States whereby the 'margin of discretion' and 'minimum core obligations' shall not refrain from taking these responsibilities.63 In contrast, the latter have to be extended towards non-state entities and international organisations in situations of alien domination.64 Access to remedies should be facilitated by new standards.65 While being sensitive to States' political configuration and individuality,66 the CESCR reserves for itself 'the ultimate determination as to whether all appropriate measures have been taken' and requests the 'provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable.' 67 However, in General Comment No. 9 from 1998,68 profound difficulties and conflicts are addressed which impact 'the duty to give effect to the Covenant in the domestic order.'69 Facing problems such as complete failure to provide anything, transforming the Covenant without invoking its specific terms,70 and distribution concerns relating to the separation of powers71 , the CESCR is forced to take recourse to principles of international law 72 as 'the impact of the Covenant on the reasoning or outcome of cases is very limited.'73

As a gap-filling provider for case law the ICESCR has recently adopted its long expected own Individual Complaints Procedure.74 While the Protocol is praised by its creators and administrators75 , adversaries downplay its value by criticising the follow-up of its equivalent to the ICCPR as an 'ill-considered effort to mimic the structures of the ICCPR'.76 The need for a complaint procedure is evident: without case-law, rights enforcement does not take any shape, in particular if judicial enforcement is not guaranteed at the domestic level.77

While McBeth remarks that 'there is sufficient evidence of State practice and an apparent feeling of compulsion among States to provide the basic needs that comprise the right to a decent standard of living, freedom from hunger, the right to health and the right to education for those rights to be considered customary international law'78 , the question remains as to the role domestic courts play in the enforcement of these rights. Worries about a downgrading of socio-economic rights in economically harsh times have recently inspired creativity and flexibility within the courts.79 In fact, as in the example of Britain, they may even draw from traditional approaches where a case dating back to the 18th century applies to contemporary situations in immigration law.80

3. Justiciability of socio-economic rights

One of the reasons ESCR are deemed to be unenforceable is that they are already dealt with in many legal instruments and regulations.81 Nevertheless, as in the case of China, a recent newcomer to the ICESCR, the representation of the rights in legislation means neither that an individual has access to justice nor that domestic courts in fact can decide in accordance with legislative provisions.82 Although rights enforcement depends on countries' resources, demagogical structure and cultural values, the CESCR has launched an urgent appeal to report cases involving socio-economic rights.83 Simultaneously, scholars and legal practitioners are developing an appealing number of promising models, techniques and litigation scenarios.

Wiles84 confirms the need for legal enforceability of socio-economic rights especially where States are reluctant to entrench or otherwise safeguard them due to external pressures.85 However, as this breaks new ground she suggests a number of accompanying measures to ensure effectiveness. The establishment of a national monitoring body, for instance an ombudsman or a commission concerned with reports and assessment studies, could help to concretise benchmarks and thresholds for the rights' scope, whereby this body again could connect to similar bodies on an international level; furthermore, tribunals specialised in socio-economic matters are desirable which would connect to administrative systems and adjudicate claims brought in form of class actions.86

Coordination between courts and public administration is also envisaged by Harvey and Rooney who are convinced that 'the enhanced constitutionalisation and adjudication of socio-economic rights is a marked trend'.87 The authors directly address a major concern, namely resource allocation, and counter with a detailed budget analysis which comprises a cost-benefit analysis, cost-effectiveness analysis and multi-criteria analysis. Thereby 'cost benefit analysis identifies the net value of an expenditure programme by adding its anticipated benefits and subtracting its expected cost, cost-effectiveness analysis concentrates on the extent to which the funding options fulfil specific identified objectives, and multi-criteria analysis accommodates, as opposed to the former, qualitative and quantitative data.'88 These economic techniques would provide valuable tools for judges and politicians to calculate public expenditure needed for the implementation of human rights. Chances of success can be better derived from processes of gender mainstreaming as it has been introduced throughout Europe in similar ways.89

In contrast, Olds reports on national achievements of the right to housing throughout Europe.90 Triggered by pressure groups and a precedent case adjudicated by the European Social Charter,91 France has enacted the "Droit au lodgement opposable", in short DALO in 2007. The Act's title roughly translates as 'the inalienable right to housing that a court cannot deny you.'92 It works in two stages: the first stage from 2008-2012 entitles all homeless and inadequately living families to take their cases to court; the second period from 2012 onwards permits to bring claims against abnormally long waiting lists.93 The legislation prevents landlords from executing evictions during winter months and forces the Government to increase the number of available housing units and to simultaneously equip social services with knowledge as to how to apply the law.94 In the case of Namizata Fofana, a legal immigrant and mother of two, it was on the basis of the Act that the court ruled that 'families must not merely have a place to stay for the night but an adequate home.' This prevented the family from losing shelter after a grace period of 21 months.95 Cooperation between the government and the courts has worked well in the Netherlands since the beginning of the 20th century where the Housing Allowance Act provides for financial assistance and the Rent Tribunal Act 'empowers citizens to challenge unreasonable rents.'96 In this context it is remarkable that 30% of the country's housing is social housing which is also occupied by middle class families and does not entail any stigma.

Ray 97 describes the development of a new remedy emanating from the South African Constitutional Court's experience with socio-economic rights. In the words of the Constitutional Court' 'the purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account.'98 Engagement as a remedy could provide relief by obliging affected parties to negotiate their case and to literally engage with each other. It has been employed in eviction cases and involves inter alia broad assessment of city planning, residents' consultation and cost analysis, thereby directly meeting the contact point between juridical decisions and policy making.

Nolan refers to 'the state's obligation to ensure that third party non-state actors do not interfere with the enjoyment of ESC by right holders.'99 Comparing the situation in Europe with the African and American Human Rights systems, the author regrets that 'most domestic and regional human rights systems do not allow for the direct application or enforcement of Economic and Social Rights norms against Non State Actors'.100 However, regional bodies and advocates have found ways out of restrictions by using a number of techniques. In International Commission of Jurists v Portugal 101 the state was accused of violating its obligation under the ESC by failing 'to ensure the effective exercise of the right of children and young persons to protection'102 when family businesses continuously employed children under the age of 15 contrary to Article 7(1) of the ESC.103 In Lopez Ostra v Spain104 air pollution caused by a privately owned waste-treatment caused serious health problems. The European Court on Human Rights resolved the case of a socio-economic right violation through reliance on Article 3 and Article 8 of the European Convention of Human Rights. 105 Nolan comments that 'the willingness and capacity of regional bodies to employ civil and political rights standards to indirectly protect ESC, and vice versa, demonstrates the reality that a considerable number of rights including the right to life, the right to equality, trade union rights and property rights, do not conform with any supposed clear-cut categories of ESC and civil and political rights.'106

Therefore, it can be said that justiciability of socio-economic rights enjoys the dynamics of an upwards trend; even more pressure on and responses in regional systems and domestic courts is to be expected. However, this is not the only stage where economic, social and cultural rights have to be respected, protected, and fulfilled. It is rather the world at large which has to be dedicated further attention. As Leckie formulates, 'problems of perception and resolve, rather than any inevitable limitation of law or jurisprudence, have kept economic, social and cultural rights wallowing in the relative purgatory of global efforts to secure human rights.'107

Part 2: Impacts on economic, social and cultural rights beyond the legal world

1. Addressing the interplay of economic strategies and human rights realisation

Traditionally, human rights have been seen as entitlements the individual claims against arbitrary interventions or omissions by States.108 However, during the last decade, States' political powers have significantly decreased in favour of a growing influence of non-state actors in the course of privatisation and globalisation.109 As a result, dynamic forces of multi-national enterprises set a heavy-weight counterpart to State governance and accordingly must bear responsibilities for violations in compliance with human rights obligations, in other words accountability for harmful impacts or rights violations on grounds of economic and commercial activities. According to Koen de Feyter 'mechanism need to be created to ensure the accountability of other actors for human rights' whereby 'these actors include influential economic powers whose actions drive people into poverty.'110 As the mutual dependence of human rights protection and meaningful economic activity has long been recognised, this integrating view on non-state actors is self-explaining and obvious.111 One of those non-state actors is the World Bank.

Corporate responsibilities

Although addressed in major summits dedicated to globally-increased social responsibility112 , corporate responsibility in relation to human rights is still premature as it tends to find itself in a contemporary vacuum resulting from transitional shifts from States' to private actors' competences. According to Clapham it is even related to the fact that 'governments were using Corporate Social Responsibility as a substitute for their own failure to address the social consequences of globalisation'113 . However, responsible corporate governance takes the exclusive burden to bear the costs for positive rights enforcement away from States and increases the radius in which human rights have to be safeguarded and enforced and consequently embrace every single member of human societies. Clapham therefore suggests 'multiple fora in which to hold the various actors accountable - the national courts (for criminal and civil liability of the natural and legal persons), an international criminal court (for individual criminal responsibility), and the relevant international human rights treaty monitoring bodies and courts (to hold the state accountable for violations of its treaty obligations).'114 The pursuance of a human rights policy may directly pay out for a corporate through the avoidance of strikes, protests and boycotts and through State measures such as 'export credit guarantees for companies to potential human rights impacts'115 . However, instead of the operation of the ICESCR, alternative implementation mechanisms with varying degrees of reach and success are employed. The Organisation for Economic Cooperation and Development Guidelines,116 which were set up in the early 70s and since then have been revised several times, provide standards of conduct and good practice to multi-national enterprises which also clearly cover categories of economic, social and cultural rights. The guidelines are boosted with a complaint mechanism which functions between National Contact Points (NCPs) and the Committee on International Investment and Multinational Enterprise (CIME) and which, although not being a legally enforceable procedure, could play a significant part in the exploration of public litigation.117 A further strength is an inherent appeal to multinationals to 'encourage others with which it is in contact to respect the Guidelines.'118 These requirements necessarily unify domestic legislation with international customary law, though still leaving gaps and negligence in the protection of individuals' rights. Nonetheless, the journalist Naomi Klein describes problems with local authorities when they turn 'a blind eye on human rights violations for the sake of foreign investment', in particular in the Philippines 'where export processing zones (EPZs) exist within kind of a legal and economic set of brackets, apart from the rest of their countries'.119

The 'Tripartite Declaration of Principles concerning Multinational Enterprises',120 likewise considering multinational enterprises as entities operating on the international and regional stages, are in addition to multinationals directed towards governments, workers' and employers' organisations and clearly refer to human rights.121 Drawing from the ILO Declaration on Fundamental Principles and Rights at Work,122 they summarise expectations on companies to act in full compliance with human rights obligations; however, their success will depend on the expertise of legal professionals to pass on their powers to people in need of their realisation.123

Finally, the UN Global Compact (2000)124 provides ten principles, two of which impose respect for protection and fulfilment of human rights and the avoidance of complicity in human rights abuses. They are a valuable source of reference for NGOs and their effect has been acknowledged as recognisably improving the human rights situation.125 Accountability gaps accrue particularly in connection with certain branches; they also re-open the operating field for UN bodies. However, social, economic and cultural rights in their appearance under the Bill of Rights are neither expressly referred to in any of these implementation tools nor do they obtain a normative role in a recent document on youth unemployment which has been issued by the International Labour Organisation.126 Besides the provision of vast numbers of relevant and comprehensive statistics the report rather directly points to cost calculations which urge the need for action against youth unemployment, stating that 'governments are rightly concerned with both the economic costs of joblessness and discouragement as well as the possible social impacts, manifested by increased crime, mental health problems, violence, drug taking and social exclusion.'127 In this context the lack of reference to any breaches of ICESCR speaks volumes in regard to the use of the Treaty as tool for legal enforcement.

International Financial Institutions and their Human Rights commitment

International Financial Institutions (IFI) such as the World Bank and the International Monetary Fund, albeit being separate legal personalities, cannot become parties to treaties themselves; failures to observe treaty obligations, however, would render their constituent parts, in other words Member States, liable.128 The extent of a required commitment to human rights on their behalf is disputed though: for some, the institutions have only to respect them and to avoid violations; for others they are even obliged to promote a favourable human rights development.129 Under the UN Charter, all financial institutions are deemed to obtain a positive human rights mandate as they represent signing States' commitment 'to employ international machinery for the promotion of the economic and social advancement of all peoples.'130 While socio-economic progress is clearly pursued by the World Bank, involvement in any political conflict is expressly prohibited in its Articles of Agreement.131 In contrast, the International Monetary Institutions may even aggravate socio-economic rights situations and impact on social rights to health, housing and work by imposing structural adjustment on countries with the purpose to eventually improve countries' financial situations.132 Agusti-Panareda has figured a way out of the dilemma: firstly he questions the absolute nature of human rights as such and secondly, he enriches them with the virtues of cultural diversity and context-based equivalents the beneficiaries of which should be approached in dialogue in order to identify their real needs, thereby 'ideally engaging the widest range of governmental and non-governmental actors and institutions.'133 He remarks that 'the bank is, after all, a financial institution, which in fostering development and alleviating poverty, should not aim to impose human rights, but rather finance and promote their local definition and consecution through an empowering venture that could overcome the pitfalls of a missionary promotion of rights.' 134

2. A feminist viewpoint: thinking universally by nature

The feminist approach is adequately reflected in the activities of 'Social Watch', an international network which directly links social development to gender equity.135 In general, feminist thinking has undergone several stages of development, reaching from the particular women rights protection in the 70s to a complete rejection of the latter as taken through a feminist lens.136 Particularities of feminist thinking are best characterised in an 'Ethic of Care' which embraces women's naturally different understanding of rights protection. This Ethic of Care has inter alia been represented and explored by Carol Gilligan, who argues that 'there are two moral codes, a feminine one based on caring and the maintenance of relationships and networks, the Ethic of Care, and a masculine one based on a more abstract systemisation of rights and rules, the Ethic of Justice.'137 A consequent vision is provided by Sarah Fredman who rather labels rights as duties and responsibilities which should not be impeded by any barriers to a profound realisation in our society.138 The author develops her argumentation around a re-conception of positive freedoms which redefines and determines the fulfilment of positive duties both leading to a 'substantive conception of equality'. In her own interpretation she addresses and reconfirms the interdependence of positive and negative rights, arguing that 'if freedom is a fundamental value, freedom for some must be freedom for all.' Therefore, 'freedom as non-interference makes it inevitable that some will be in a better position to exercise their freedom than others.' Consequently 'positive freedom places a duty on the State to pay particular attention to those who are not in a position to exercise their rights to the full, even if this entails supplying more resources or providing greater facilitation for these individuals than for others not in the same category.'139

3. Regional Systems

This section shall look at three geographically distant areas in an attempt to sketch some of their most interesting socio-economic rights developments; they illustrate the range and diversity of different approaches and attitudes.

South Africa

After the break-up of the Apartheid regime, South Africa has arguably managed to create one of the most progressive and influential constitutions, thereby rejecting a directive principles approach to socio-economic rights in favour of their full constitutional recognition.140 Cases such as Grootboom141 and Treatment Action Campaign142 have fostered the constitutionality of socio-economic rights and raised the expectations of many rights scholars. Nonetheless, in 2010, Lehman draws a terrifying picture of the countries true situation. According to the author, 'life, for the majority of South Africans, remains appallingly hard, despite the socio-economic promises of the Constitution.'143 Scholars blame the Constitutional Court for being too deferential and cautious as the Court has taken a reasonableness approach instead of a minimum core approach, the profile of the latter being by no means fully clear according to the Committee's reasoning.144 The discussion as depicted in Lehman's paper exposes the Court as defendant of a judicial position which eradicates scholars' hope for a crossing of political frontiers. For Lehman the solution consists in a 'more robust approach'.145 The rationale of this approach is based on the presumption that executives are excused for lack of resources but that in fact there are additional resources available in existing pools. Litigation would have to identify these sources whereby the court would have to dismiss its 'self-imposed constraints' and exemplarily 'scrutinise the reasonableness of budget allocations.'146 A new form of relationship and cooperation between two limbs of the constitution would have to be established as 'there is no suggestion in the Constitution that the maintenance of democracy requires that Rand 587 million is spent on the acquisition of an airplane for presidential use, or that Rand 50 billion is spent on the acquisition of arms.' In her views, 'as long as the socio-economic needs of individuals remain unfulfilled, expenditures such as these require explanation.'147


In his book 'The European Social Charter: A social constitution for Europe',148 Schutterer acknowledges the influence the ESC has taken on the shape of the European Community from its early days in Rome; he observes its increasing significance since the establishment of the Collective Complaint Procedure149 and frankly propagates the idea of an accession of the EU to the ESC.150 The author acknowledges 'remarkable achievements in European social legislation, particularly in the fields of equal treatment between women and men and protection from discrimination on a number of grounds, but also in the adoption of measures for the approximation of the national laws of the Member States'. These have 'as their objective the establishment and functioning of the internal market,' connecting to the fact that 'most of the guarantees of the ESC may only be implemented within the Union by the adoption of directives.' Through this reduction in goals, competence and legislative procedures may lead to the imposition of 'only minimum requirements on the Member States what they are a product of negotiation often settling on the lowest common denominator.'151 However, scholars observe a beneficial amalgamation of jurisprudence between the European Court Human Rights and the European Court of Justice, whereupon the latter often relies on fundamental rights such as the right to family life to back-up decisions in favour of social rights guarantees which were otherwise not enforceable.152 In contrast this promising development did not help to avoid a series of serious and violent breaches against Roma and Gypsy minorities153 and many countries are still struggling in their discussions of minimal wages and social benefits. With the ongoing euro zone crisis that heavily affects European countries, if not global prosperity, chances of success for the amelioration of the global social climate have been distorted dramatically.

The US

In its annual report of 2010, the Center for Economic and Social Rights shows 'that despite being the world's wealthiest economy, the US has one of the poorest records of economic and social rights achievement of all high-income countries',154 notwithstanding its dominant role in drafting the UHDR and therefore historically-founded commitment to these rights. The international human rights community has always been aware of the particular scepticism of American scholars towards socio-economic rights.155 More surprising is an appraisal by one of their strongest opponents156 , Cass Sunstein, when he acknowledges that F.D. Roosevelt's Second Bill of Rights 'attempts to protect both opportunity and security, by creating rights to employment, adequate food and clothing, decent shelter, education, recreation, and medical care.'157 Sunstein grapples in his book meticulously with American's history in order to analyse its reluctance against socio-economic rights protection as well as the country's need for their realisation. He acknowledges successes of the South African experience158 and European case law159 and expects 'a democratic attention to important interests that might otherwise be neglected in ordinary debate' with 'large implications for how we think about citizenship, democracy, and minimal social and economic needs.'160 These controversial and contrasting pieces of a jigsaw puzzle leave us for the time being with much of a mystery as to the country's true identity and future social direction.

4. Conclusion

This article sought to illustrate that socio-economic and cultural rights are no longer in the shadow of their civil and political counterparts; they are right in the center of current human rights debates. The call to 'inject new life into multilateralism and move to a new economic paradigm for the 21st century'161 is made on behalf of UN advocates, civil organisations and legal practioners in explicit and unequivocal wording; however, signs of genuine endeavour, progress and success of their comprehensive work should be emphasised instead of reiterating debates of principles. There is much need for clarification as John Tobin ascertains when he formulates a comprehensive pleads to non-judicial actors - academics, NGOs, treaty monitoring bodies, special rapporteurs, and States - to better represent human rights obligations. In his words 'legal interpretation is not simply the process of attributing a meaning to the text of a treaty but is ultimately an act of persuasion; an attempt to persuade the relevant interpretive community that a particular interpretation is the most appropriate meaning to adopt.'162

Citizens should inform themselves about the extent to which their States are legally bound and fulfilling their socio-economic rights in an international and regional context;163 they must also be given sophisticated and qualified reasons for breaches, delays and incapacity as regards their States' obligations. Though much information is readily accessible but non-transparent for the public at large, pinpointing and clarifying backgrounds is essential and opens new working areas for legal practioners and scholars likewise. Putting the mere and real presence of socio-economic rights first could help reshaping our societal needs setting new priorities; however, the complex context of socio-economic rights calls for concentrated commitment.

As a result, citizens should get involved in a full-fledged participation. The programmatic nature of socio-economic rights will constitute their strength rather than their weakness in this process and connect well to contemporary forward-looking legal thinking.164 As this examination points out it is not only within the scope of State parties' responsibilities but within the duties and powers of all citizens that social, economic and cultural rights can be respected, protected and fulfilled, be it from a leading position or from the position of ordinary citizens both having the right to claim the very fundamental conditions for a human life in dignity.165

1Helene Albrecht, LLB Graduate (2011), University of Westminster Law School & MA Student, University College London, University of London
2Hereafter the CESCR.
3HJ Steiner, P Alston and R Goodman, International Human Rights in Context (3rd edn, Oxford University Press 2010) 264.
4Mario Joseph, 'Testimony of Mario Joseph' (Delivered to the Inter-American Commission on Human Rights 23 March 2010) http://www.chrgj.org/projects/docs/Testimony_MJ-English-Final.pdf accessed 10 December 2011.
5S Leckie, 'Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights' in J Rehman, 'International Human Rights Law' (Pearson 2010) 143.
6The International Bill of Rights consists of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR); for a detailed exploration see Javaid Rehman (n 4) 73-180.
7The renamed Committee on Economic, Social and Cultural Rights http://www2.ohchr.org/english/bodies/cescr accessed 10 December 2011.
8Hereafter called 'ESCR'.
9C Grossman, 'Prologue', [2006] 22 AUILR 1 referring to the Annual Human Rights Award sponsored by the Academy on Human Rights and Humanitarian Law of Washington College, in 2006 under the heading 'Justiciability of Economic, Social and Cultural Rights: Legal Approaches and the Contributions of Case Law'.
10S Leckie (n 3): 'Moralists used to complain that international law was impotent in curbing injustices of nation-states, but it has shown even less capacity to rein in markets that, after all, do not even have an address to which subpoenas can be sent. (...)As the product of a host of individual choices or singular corporate acts, markets offer no collective responsibility. Yet responsibility is the first obligation of both citizens and civic institutions'.
11Thereafter 'UDHR'.
12K Cronin-Furman, '60 years of the Universal Declaration of Human Rights: Towards an Individual Responsibility to protect' [2010] 22 AUILR 175-198
13JM Keynes, The Economic consequences of the War (Harcourt, Brace and Howe 1920) 9-26; see also RKM Smith, International Human Rights Law' (2010) p 303: 'The drafter of the Universal declaration were mindful to the role high levels of unemployment played in the rise of the Nazi Regime in Germany, and indeed, in a number of other civil revolts.
14ibid, Preface.
15J Morsink, 'The Universal Declaration of Human Rights-Origins, Drafting & Intent' (Pennsylvania Press 1999).
16Ibid, 223.
17M Darrow, 'Between Light and Shadow' (Hart Publishing 2003) 5-7.
18Henri Laugier, assistant of the Secretary-General in charge of social affairs quoted in J Marsink (n 14) 223,
19Ibid 223-4, quoting the Russian delegate Klekovkin
20Steiner and Alston (n 2) 270; see also C Sunstein, 'The second bill of rights-FDR's unfinished revolution and why we need it more than ever' (Basic Books 2004).
21Marsink (n 14) 237.
22M Craven, 'The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development' (Oxford: 1995) 16-22.
23Steiner and Alston (n 2) 263.
24Para 11 of the 'Annotations' supra 13: 'A civil or political right might well be a 'legal' right under one regime, an economic, social or cultural right a 'legal' right under another(...)'.
25UN Doc A/2929, extracts reprinted in Steiner (n 2) 271.
26Ibid 272.
27Art 2(1) and Art 2(3) ICCPR respectively http://www2.ohchr.org/english/law/ccpr.htm accessed 11 December 2011.
28Art 2 (1) ICESCR, http://www2.ohchr.org/english/law/cescr.htm accessed 11 December 2011
29Rehman (n 4) 144.
30Ibid 86-8.
31General Assembly Resolution 3201 of 1 May 1974, para 4 (e) http://www.un-documents.net/s6r3201.htm accessed 11 December 2011.
32Ibid para 4 (d) and (g) respectively.
33C Scott, C 'Reaching beyond (without abandoning) the category of 'economic, social and cultural rights' 21 HRQ(1999) 650
34Ibid, 651-4; those rights are entailed in the Convention on the Elimination of All Forms of Racial Discrimination (CERD), in Articles 2(1), 3 and 26 of the ICCPR, Article 2(2) and 3 of the IXESCR, and Article 2(1) of the Convention on the Rights of the Child (CRC).
35Art 10(3) of the ICESCR, Art 24 of the ICCPR and more concretely in the CRC.
36E Wiles, 'Aspirational principles or enforceable rights? The future for socio-economic rights in national law' 22 AmUIntLRev (2010) 42-45.
37J Kenny, 'European Convention on Human Rights and Social Welfare', 5 EHRLR (2010) 495-503; Case Larioshima v Russia (App. No 56869/00) Judgment of 25 June 1999.
38Steiner and Alston (n 2) 275: 'It is often suggested that the nature of the obligation under the ICESCR is so onerous that virtually no government will be able to comply'.
39Rehman (n 4) 9-10.
40C Mak, 'Fundamental Rights in European Contract Law' by (Wolters Kluver 2008) 6-9 provides a brief analysis.
41C Sunstein, 'Against positive Rights' (1993) in Steiner and Alston (n 2) 320: 'It seems clear that Eastern European countries should use their constitutions to produce two thing: (a) firm liberal rights- free speech, voting rights, protection against abuse of the criminal justice system, religious liberty, barriers to invidious discrimination, property and contract rights' and (b) the preconditions for some kind of market economy (...) Governments should not be compelled to interfere with free markets.'.
42Willis (n 35) 44.
43Ibid 45.
44C Sunstein, C, 'Designing Democracy: What Constitutions do (2001)' in Steiner and Alston (n 2) 319.
45Human Rights Committee's General Comment No 32CCPR/C/32; for further 'arguments over the superiority of rights' see Rehman (n 8) 142-3.
46Art 2 of both Covenants (n 26); interpreted in the Limburg Principles on the Implementation of the ICESCR para 6, UN doc. E/CN.4/1987/17, Annex; 9 HRQ Vol. 9 (1987)122-135.
47Art 40-42 ICCPR and Art 16-23 ICESCR.
48Steiner and Alston (n 2) 121: the third, 'and by far most significant, insofar as individual are concerned' mechanism.
49H Hampson, 'An Overview of the Reform of the UN Human Rights Machinery' (2007) 7HRLR 7.
50Steiner and Alston (n 2) 85: 'While it was possible to install a scheme of implementing civil and political rights through legislation, the same was not thought to be feasible for social and economic rights.' While for the implementation of civil-political rights The Human Rights Committee is directly in charge of the ICCP, the ICESCR is represented by the in 1987 established Committee of Economic, Social Rights and Cultural Rights (CESCR).
51(n 45)
52http://www2.ohchr.org/english/bodies/cescr/comments.htm accessed on 12 December 2012
53General Comment No 3 'The nature of States parties' obligations'. The CESCR interprets the key elements of Art 2(3) ICESCR namely "to take steps", "by all appropriate means" and "achieving progressively the full realisation" in Para 2, 3-8 and 9 respectively.
54General Comment No 9 'The domestic application of the Covenant'.
55General Comment No 12 and 15 'The right to adequate food' and 'The right to water' respectively, both based on Art 11 of the ICESCR and setting normative guidelines, indicators and benchmarks.
56General Comment No 21; see also Rehman, J (n 4)165-6: 'cultural rights within the Covenant are [therefore] the poor relation of social and economic rights' although 'culture represents a quintessential part of human existence; the absence of a cultural association makes it difficult to forge common identities and establish social values.'
57Para 72; the Principles also specify situations when States will act in violation of the Covenant.
58S Leckie (n 4) 89.
59'The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights' http://www1.umn.edu/humanrts/instree/Maastrichtguidelines.html para 1.
60Ibid para 2.
61A McBeth, 'International Economic Actors and Human Rights' (Routledge 2010) 43-44.
63Part II of the Maastricht Guidelines: 'The Meaning of Violations of Economic, Social and Cultural Rights' (n 59).
64Part III 'Responsibility of Violations'. See also General Comment No 14: The Right to the Highest Attainable standard of Health, UN Doc E/C.12/2000; in accordance with these provisions the CESCR has declared that a State violates the right to health contained in Article 12 of the ICESCR if it fails 'to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to health of others', including 'the failure to enact or enforce laws to prevent the pollution of water, air and soil by extractive and manufacturing industries'.
65Ibid Part V, 'Remedies and Other responses to Violations'. One suggested remedy would be the adoption and ratification of the optional protocol providing for individual and group complaints.
66The Committee notes that the undertaking 'to take steps ... by all appropriate means including particularly the adoption of legislative measures' neither requires nor precludes any particular form of government or economic system being used as the vehicle for the steps in question, provided only that it is democratic and that all human rights are thereby respected.'
67General Comment No 3,'The nature of State Parties Obligations', para 5: 'In addition, there are a number of other provisions in the International Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a) (i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would seem to be capable of immediate application by judicial and other organs in many national legal systems. Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain.'
68General Comment N 9 para 10 where it refers to 'Justiciability' in the sense of State parties obligations under General Comment No3.
69Ibid section A.
70Ibid para 6.
71Ibid para 10. On the question whether resource allocations are appropriate to be judged by the courts the Committee remarks that 'courts are generally already involved in a considerable range of matters which have important resource implications.'
72Ibid para 3 and para 15.
73Ibid para 13; see also the Periodic Report 2007 by the UK, stating that 'under domestic law, international instruments, including the ICESCR, are not directly enforceable in domestic courts unless an Act of Parliament specifically provides so.' http://www.justice.gov.uk/publications/docs/ICESCR-whole-report.pdf accessed on 8 January 2012.
74Optional Protocol to the ICESCR http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf accessed 8 January 2012.
75The UN High Commissioner for HR Navi Pillay in her speech to the General Assembly, 10 December 2008 http://www.right-to-education.org/node/571. See also contributions by NGOs such as FIAN (Fighting hunger with human rights) http://www.fian.org/programs-and-campaigns/projects/optional-protocol-to-the-international-covenant-on-economic-social-and-cultural-rights and OP-ICESCR Coalition, an "International NGO Coalition for an Optional Protocol to the ICESCR" http://www.opicescr-coalition.org/ accessed 12 December 2012.
76M Dennis and DP Stewart, 'Justiciability of Economic, Social, and Cultural Rights' in Steiner and Alston (n 2) 363.
77O De Schutterer, 'The European Social Charter: A social constitution for Europe' (Bruylant 2010); see also G de Burca and B de Witte, "Social Rights in Europe" (Oxford 2006).
78Mc Beth (n 61). (Oxford 2006).
79See Willis (n 35) 41.
80 R v Inhabitants of Eastbourne (1803) 4 East. 103, 107 required claiming inhabitants to save an immigrant family from starving despite of the father's illegal status under the 'laws of humanity', Lord Ellenborough; recently applied in R v Secretary of state for Social Security ex parte Joint Council to the Welfare of Immigrants (JCWI), [1997] 1 W.L.R. 275, 283-4.
81See Willis (n 35) 40.
82l Choukroune, 'Justiciability of Economic, Social And Cultural rights: The UN Committee on Economic, Social and Cultural Rights' Review of China's first Periodic Report on the implementation of the ICSCR" (2005) http://web.ebscohost.com.ehost/delivery accessed 10 November 2011. China signed the Treaty in 1997, ratified it in 2001 and was due for its first report in 2002 according to which it has listed 24 legislative enactments but no statistical material as to court litigations for an increasing number of petitions.
83Ibid 40
84Willis (n 35).
85Ibid 64.
86Ibid 63-4.
87C Harvey and E Rooney, 'Integrating human rights? Socio-economic rights and budget analysis' 3 EHRLR (2010) 267-8.
88Ibid 270.
89Ibid 268.
90K Olds, 'The role of Courts in making the right to housing a reality throughout Europe: Lessons from France and the Netherlands' 28 WILJ (2010) 170-199.
91Ibid 181. The case is FEANTSA v France, Complaint No 39/2006; 'France violated Art 31 of the ESC by not making sufficient progress toward eradicating substandard housing, failing to pass legislation to prevent evictions, having an insufficient supply of social housing, and having a poor social housing allocation system' .
92Ibid 171.
94Ibid 192.
95Ibid 171.
96Ibid 187.
97B Ray, 'Case Comment-Residents on Residents of Joe Slovo community v Thubelisha Homes and others: the two faces of engagement' 10 H.R.L.Rev 2 (2010); see also (n 142) 19.
98Mazibuko and Others v Johannesburg and Others CCT 39/09 [2009] ZACC 28.
99A Nolan, 'Addressing economic and social rights violations by non-state actors through the role of the state: a comparison of regional approaches to the 'obligation to protect', 9 HRLR 2 (2009) 225-255.
100Ibid 230.
101Case No. 1/1998 Forum and date of the decision: ECSR on 9 September 1999 http://www.escr-net.org/caselaw/caselaw_show.htm?doc_id=400955 accessed 12 December 2012.
102Nolan (n 99) 240.
103L Samuel, 'Fundamental social rights', (Council of Europe Publishing 1997) p185.
104A 303 (1994) 20 EHHR 277.
105The 'right to be free from torture and degrading treatment' and the 'right to respect for a family home' respectively; the latter eventually decided the case and awarded a right to compensation.
106Ibid 254.
107Leckie (n 3) 82.
108McBeth (n 61) 1.
109G Teubner, 'Global Bukovina: Legal Pluralism in the World Society' in 'Global law without a state' (1997), quoted in McBeth (n 61)1.
110Ibid 2.
111Ibid: 'The ICESCR recognises the need for some degree of prosperity in order to fulfil some of the economic and social rights that require expensive infrastructure or service provision. On the other hand, the pursuit of such prosperity by some-whether by the state or by private actors-undoubtedly has the potential to violate the human rights of others'. See also the 'Report of the Special Rapporteurs of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises' 3/8/2009 UN /64/216.
112'UN Millennium Declaration 2000' http://www.un.org/millennium/declaration/ares552e.htm accessed 12 December 2012. See also G MacNaughton and D F Frey, 'Decent Work, Human Rights, and the Millennium Development Goals' 7 HRPLJ (2010) 302-352. The authors connect the right to decent work with an eradication of poverty and blame states for not providing 'any consensus on the components of decent work or on the appropriate indicators to monitor the progress of states in achieving the new full employment and decent work target' 349.
113A Clapham, 'Human rights Obligations of Non-State actors' (Oxford 2006) 195.
114Ibid 32.
115See http:///www.ecgd.gov accessed 9 January 2012; this method is pursued in the UK, the US and the Netherlands and looks 'not only at the payment risks but also at the underlying quality of the project, including its environmental, social and human rights impact.'
116OECD Guidelines for Multinational Enterprises: Revision 2000 http://www.oecd.emb-japan.go.jp/kiso/(4-1-2)OECD%20Guidelines%20forMNEs.pdf accessed 11 December 2011
117Clapham (n 113) 207.
118Ibid 203.'
119N Klein, 'No Logo' (Picador 2004) as cited in Clapham (n 113) 206.
120Adopted by the Governing Body of the International Labour Office on 16 November 1977, amended in November 2000, http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/---multi/documents/publication/wcms_094386.pdf accessed 12 December 2011.
121Ibid para 8.
122Adopted by the International Labour Conference in June 1998.
123Clapham (n 113) 218.
124Ibid 48. 'Global Compact' was enacted by the UN Secretary-General on the 31 January 1999 at the World Economic Forum in Davos, Switzerland.
125Ibid 222-5.
126International Labour Organisation, 'Global employment trends for youth', August 2010 http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_elm/---trends/documents/publication/wcms_143349.pdf .accessed on 8 January 2012
127Ibid 34.
128McBeth (n 61)167-241 for an account of the institutions human rights mandate and restrictions which impede their commitment.
129Ibid 166-170. See also M Darrow, M, 'Between Light and Shadow-The World Bank, the International Monetary Fund and International Human Rights Law' (Hart Publishing 2003).
130Ibid 172.
131The World Bank, 'Articles of Agreement', http://web.worldbank.org/ accessed 12 December 2012.
132McBeth (n 61) 69.
133J Agusti-Panareda J. 'Transforming Weakness into virtue: a dialogue and context based approach to human rights at the World Bank' 2 HRGLR (2008-9) 23.
135'Social Watch Report 2010: Time for a new deal AFTER THE FALL-a Citizens' Global Progress Report on poverty eradication and Gender equity' http://www.socialwatch.org/sites/default/files/Social-Watch-Report-2010.pdf accessed 9 November 2010.
136S Mullally, ''Feminism, discourse ethics and human rights' in Gender, Culture and Human Rights' (Hart Publishing 2006) xxxiv-xliv.
137Ibid p 2; see Chapter 1 for an account of different perspectives to the theory.
138See Fredman, S, 'human rights transformed-positive rights and positive duties' (Oxford 2008).
139Mullally (n 139) 3.
140Steiner and Alston (n 2) 328; Sunstein (n 40) 211.
141Case CCT 11/00 as described in Steiner and Alston (n 2) 338.
142Case CCT 8/02; see Steiner and Alston (n 2) 339-347.
143S Lehman, 'In Defense of the Constitutional Court: Litigating Socio-Economic Rights and the Myth of the Minimum Core' 22 Am.U.Int'l L.Rev 163 (2006-7)164: 'Approximately 40% of South Africans remain unemployed, approximately 30% do not have either adequate housing or access to piped water and about 50% survive, somehow, on an income of less than R500 per month.'
144The author refers to the meaning of 'minimum core' as indicated in General Comment No 3 (n 52)
145Lehman (n 147)193-194.
146Ibid 195.
148O de Schutterer, 'The European Social Charter: A social constitution for Europe' (Bruylant 2010).
149Ibid 36-7
150G de Burca and B de Witte (n 76 ) 'Anchoring the EU to the ESC: the case for accession' 112-152.
152See the 'Free Movement of Persons' line of cases starting with Baumbast C-413/99 (right to family life); recent cases London Borough of Harrow v Nimco Hassan Ibraim and Maria Teixeira v London Borough of Lambeth C-310/08 and C-480/08 (children's right to education allowed their mothers to stay without having sufficient resources on the basis of Directive 2004/38).
153See 'Special Procedures Bulletin' 16th Issue January-March 2010: 'Experts urge Italian authorities to curb xenophobic attitude towards migrant workers'; 11th Issue October-December 2008: 'Experts concerned about minority issues and racism in Europe' http://www.ohchr.org/EN/Pages/WelcomePage.aspx See also I Pogany 'Minority rights and the Roma of Central and Eastern Europe' 6 H.R.L.Rev 1 (2006) 1-25
154Center for Economic, Social Rights website http://cesr.org/article.php?id=862, according to which the country has high child poverty rates, health and education disparities; inequalities affect in particular African American women.
155C Sunstein, 'Against Positive Rights' (1993): Dennis M.J and D.P. Stewart, 'Justiciability of ESCR' (2004), both in Steiner and Alston (n 2).
156Sunstein, C (n 19)
157Ibid 1.
158Ibid 229.
159The author emphasises in his video that Europe benefitted directly from Roosevelt's influence http://www.youtube.com/result?search_query=the+unfinished+revolution+by=sunstein&aq=f accessed 30 November 2010.
160Sunstein (n ) 153 - 212; for a conflicting view see D Thaler and C Sunstein, 'Nudge', (Penguin 2010)
161http://www.un.org/ga/president/62/statements/foodcrisis180708.shtml accessed 8 January 2012.
162 See Tobin, J, 'Seeking to Persuade: A Constructive Approach to Human Rights Treaty interpretation' 23 Harv. Hum.Rts.J.1 (2010) 3-4.
163 See C Barnard, 'The Opt-Out' for the UK and Poland from the Charter of Fundamental Rights: Triumph of Rhetoric over Reality?' www.law.cam.ac.uk/faculty-resources/10007309.pdf accessed 12 December 2011; UK State report under the ICESCR , http://www.justice.gov.uk/publications/docs/ICESCR-whole-report.pdf accessed 12 December 2011
164A Philippopoulos-Mihalopoulos '...the sound of a breaking string: critical environmental law and ontological vulnerability' 2 JHRE 1 (2011) 5-22 The author suggests to take 'a vulnerable position of the middle' which 'allows for the reconfiguration of social, biological and ecological processes' combined with the 'call to remain immanent within existing legal structures.'
165Tobin (n 161) 4: 'the nature of the interpretive community relevant to the interpretation of international human rights treaties (...) has moved beyond states and their agents toward a more communitarian model in which the interests and expertise of a much wider range of parties and actors must be taken into account in the interpretive exercise.' See also K R Cronin-Furman, '60 Years of the Universal Declaration of Human rights: Towards an Individual Responsibility to protect' 25 Am. U. Int'l L.Rev. 175 (2010) 197: 'despite the increasing legal entrenchment of the human rights regime, the effort to police compliance with human rights remains a fundamentally moral enterprise.'