By Deval Desai
Courtesy of The Council for American Students in International Negotiations
The potential of Economic and Social Rights (ESR) as a tool to ensure the inherent dignity of all has been, to use a popular phrase, “detained for questioning.” Over the last sixty years, debate has centered on arguments denying the justiciability and judicial enforcement of Economic and Social Rights. However, the former UN High Commissioner on Human Rights, Louise Arbour, recently stated that “[i]t is now widely recognized that there is nothing inherently non-justiciable about economic, social and cultural rights.” The enactment of an Optional Protocol on Economic, Social and Cultural Rights, detailing an international “communications procedure” for violations of ESR supports Ms. Arbour’s contention. However, scholars, nation-states, and courts themselves still argue against the idea that ESR are justiciable rights capable of being adjudicated by courts. Even where objections to ESR’s justiciability are overcome, arguments are still made in favor of limiting the scope of judicial oversight, oft times by the courts themselves.
In this paper I reconsider scholarly approaches to justiciability. The language of legitimacy is miscast. The idea that the (nominally) elected government only, and not the courts, has the absolute and exclusive legitimacy to decide on questions of resource allocation is a sham: the worse off a polity, the less democratic agency its citizens exercise. The already delegitimated character of poor governments justifies judicial intervention in distributive questions in democratic terms as an exercise of the will of the people to serve the common good. Traditional arguments against the justiciability of ESR are based in a concept of democratic deficit; traditional arguments in favor of ESR are made in terms of a comparative analysis to civil and political rights (CPR). This is based in the concept of the indivisibility of rights, making such comparisons appealing. However, that conceptual framework cannot be applied in an effective manner to countries where there is insufficient democratic agency for meaningful democracy, whether due to poverty, mismanagement, or corruption.
In this paper I use the democratic legitimation argument to support judicial intervention and engage with the democratic deficit problem itself. Part I of the paper will sketch out the recent arguments for and against the justiciability of ESR from the point of view of scholars, governments, and courts. Parts II and III will examine the question of legitimacy of governments and courts to deal with this issue and argue that, if breaches of ESR affect polities’ ability effectively to participate in elections, a government’s legitimacy must be questioned. Part IV will look at the implications of this on governments, NGOs, and judiciaries, and argue that, this being the case, it is inappropriate to exclude the judiciary from a role in ESR enforcement (in the wide sense of the word), and, further, that they should have a positive role. Part V will conclude that, given the calculus of contrasted legitimacy between government and judiciary, this argument has implications for both poor countries and rich countries with a substantial poor population.
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The Interdisciplinary Journal of Human Rights Law (IJHRL) is a peer-reviewed, scholarly journal designed to address international human rights issues more broadly. The first volume of the IJHRL was ranked #8 among top international law reviews on ExpressO rankings. The journal explores political, philosophical, and legal questions related to international human rights from diverse perspectives. It strives to create a more thoughtful polity better able to make informed choices about ethical foreign policymaking.