Introduction

The last few decades have witnessed substantial amounts of scholarly analysis, international
practice and litigation on the dichotomy between economic, social and cultural rights in
contrast to civil and political rights. The dominant conventional view has been that the two
categories of rights are essentially distinct and consequently the methods for their
implementation and enforcement cannot be the same, but rather need to reflect these
distinctions.1 This appraisal aims to confront this traditional bleak dichotomy and propose a
more sophisticated and enhanced understanding of both sets of rights. 2

Thus this essay assesses five important distinctions between civil and political rights 3 and
economic, social and cultural rights.4 This assessment begins with a summary of the
evolution of the aforementioned rights, further elucidates the manner in which international
human rights law draws such distinctions between the abovementioned rights. The crux of
this essay analyses the arguments of the alleged distinctions between the two sets of rights
in relation to their separate international covenants namely: the International Covenant on
Civil and Political Rights5 (ICCPR)6 and the International Covenant on Economic, Social and
Cultural Rights7 (ICESCR).8 Furthermore this essay endeavours to dispel arguments
regarding the superiority of CP rights over ESC rights before reaching a sound conclusion
that the alleged distinctions between CP rights and ESC rights are superfluous, questionable
and largely artificial.

EVOLUTION OF CP AND ESC RIGHTS

Prior to 1945, international human rights law showed little concern to the way States treated
individuals within their own borders. However, following the end of the Second World War,
the United Nations created the Universal Declaration of Human Rights (UDHR) 9 which set
the stance of the international community with regards to human rights primarily by
expressing the moral foundation of human rights and basic fundamental freedoms.

1
Steiner H.J. and Alston P. (2000) International Human Rights in Context: Law, Politics, Morals: Text
and Material, 2nd edition (Oxford: Clarendon Press), pp. 237-320
2
Steiner H.J., Alston P. and Goodman R (2007) International Human Rights in Context: Law, Politics,
Morals, 3rd edition, Oxford University Press, pp. 263–374.
3
Hereinafter referred to as CP rights
4
Hereinafter referred to as ESC rights
5
United Nations General Assembly Resolution 2200 A (XX1) OF December 16, 1966, entered into
force in 1976
6
Hereinafter referred to as ICCPR
7
United Nations General Assembly Resolution 2200 A (XX1) OF December 16, 1966, entered into
force in 1976
8
Hereinafter referred to as ICESCR
9
10 December 1948, United nations General Assembly Resolution 217 A(III), UN Doc. A/810 at 71;
hereinafter referred to as UDHR

1
Nonetheless the UDHR was still a far cry mainly because of its non binding nature on States,
its failure to crystallise what these rights entailed and how they were to be promoted,
protected and enforced, particularly by states. The original plan was to transform the
aspirations of the UDHR into a single international treaty that would become legally binding
on States; unfortunately this objective became a victim of cold war politics. The divide
between the Western States on one hand asserting the priority of civil and political rights as
being the foundation for liberty and democracy in the free world and the Eastern States on
the other hand championing the cause for economic, social and cultural rights forced the
United Nations to draft two Covenants to accommodate the political realities of the day.

The result of this confrontation was the birth of two covenants; the ICCPR dealing with the
protection and realization of CP rights and the ICESCR dealing with the realization of ESC
rights.10 Underlying this decision were several assumptions however not all were well
founded. It was argued and subsequently often repeated that CP rights were ‘first
generation’ rights associated with the eighteenth century Declarations on the Rights of Man 11
hence their hierarchy in the UDHR, 12 possessed ‘absolute character’, ‘justiciable’ 13 and
immediately applicable and enforced through courts. 14 Whereas the perception of ESC rights
was that they were ‘second generation’ rights derived from the growth of socialist ideals in
the late nineteenth and early twentieth centuries, were ‘non- justiciable’, required progressive
implementation, were ‘expensive’ and ‘vague’. 15 This act of separation has led in particular
to the furtherance of extremely monolithic views as to the history, nature and conception of
the aforementioned group of rights and has largely contributed to the flawed ideas that ESC
rights are in reality a distinct and separate group of human rights. Of greater concern
however, is that despite the clear intention of the United Nations not to imply any notion of
relative value by separating both Covenants, 16 it has nonetheless enforced claims as to the
superiority and hierarchical ascendance of CP rights.17 Though one might argue that within
the UN and in the preamble of both Covenants there is the universal acceptance of the
theoretical ‘indivisibility and interdependent’18nature of the two sets of rights, the reality in

10
Report of the Seventh Session of the Commission on Human Rights, 1951, pp. 57-85
11
French Declarations on the Rights of Man 1791
12
See Articles 1-21 of the UDHR 1948
13
McGoldrick D. (1991) ‘The Human Rights Committee; Its role in the development of International
Covenant on Civil and Political rights’, Oxford, Clarendon Press, pg.11
14
Friedman S. (2008) ‘Human Rights transformed: Positive rights and Positive duties’, Oxford, Oxford
University Press, p. 66
15
See Note 13, page 11
16
Preamble to the General Assembly Resolution 543 (VI)
17
Eide A. (2008) ‘Economic, Social and Cultural Rights as Human Rights’, Human Rights: Critical
Concepts in Political Science, Volume 2, pp. 299-318
18
Vienna Declaration and Programme of Action (New York: United Nations Department of Public
Information) 1993 paragraph 5 (part 1) Adopted by the United Nations World Conference on Human
Rights, 25 June, 1993

2
practice is that ESC rights remain largely ignored. 19 One of the arguments for this hierarchy
of rights is that the principle of indivisibility and interdependence of all human rights does not
imply equal implementation, thereby placing ESC rights in a subordinate position to CP
rights.

Gallons of juristic ink have been spattered internationally by legal pundits in examining the
nature and scope of both sets of rights since 3rd January 1976 when both the ICCPR and
ICESCR entered into force.20 While the adoption of the treaties have documented yet
another landmark in the protection of international human rights, several concerns have
arisen bothering on the distinction, nature and content of the rights declared by these
instruments.

DISTINCTIONS BETWEEN CIVIL AND POLITICAL RIGHTS AND ECONOMIC, SOCIAL

AND CULTURAL RIGHTS

A) Negative and Positive obligations

Alston and Quinn21 submit that the most commonly drawn distinction between CP rights and
ESC rights is between negative and positive rights. The distinction between negative and
positive duties reflects the traditional dissection between civil and political rights, which
restrain the State from interfering; and ESC rights or socio-economic rights, which elicit
protection by the State against want or need.

There have been presumptions by legal experts that in order to ensure CP rights,
governments are required to abstain from certain activities (for example, not to conduct
torture or deprive people of their liberty). 22 In essence this means that obligations relating to
CP rights compel States to refrain from any particular conduct that interferes with an
individual’s integrity and freedom or impedes his choice.  Following from this assumption
was the conclusion that the protection of CP rights was relatively cost-free and could be
easily and immediately realized since implementation involved little more than the state
ceasing or abstaining from behaviour injurious to individuals. In contrast, the realisation of
ESC rights was generally professed as requiring proactive measures which incur significant
19
Committee on Economic, Social and Cultural Rights Statement at the World Conference, UN
Document E/1993/22/, at p. 83, paragraph 5
20
Eide A. (2008) ‘Economic, Social and Cultural Rights as Human Rights’, Human Rights: Critical
Concepts in Political Science, Vol.2; Sepulveda M.M., (2003) The nature of the Obligations under the
International Covenant on Economic, Social and Cultural Rights, Antwerp Intersentia Publishers;
Mashood A. B. (2007) Economic, Social and Cultural Rights in Action, Oxford, Oxford University
Press.
21
Alston P. and Quinn G. (1987) The Nature and Scope of States Parties' Obligations under the
International Covenant on Economic, Social and Cultural Rights” Vol. 9(2) Human Rights Quarterly,
pg 159
22
Note 20

3
costs, hence understood to entail positive obligations.23 Considered claims on the state for
active intervention, protection and assistance, ESC rights were positive in the sense that
they seemed to require that the state provide welfare to individuals, thus requiring greater
resources to achieve full enjoyment.  Due to their resource demanding nature, it was
maintained that ESC rights could only be achieved progressively, or over time, subject to the
availability of resources at the disposal of the state.24 For instance, the right to education
requires amongst other things, buildings accessible to all in which lectures may be
conducted, premises equipped with sanitation facilities, payment of salaries for teachers.  

Admittedly while there is some merit to this distinction, this assumption is no longer tenable.
Shue avers that attempting to classify every right as utterly negative or positive is an
‘artificial, simplistic and arid exercise’. 25 Neither ESC rights nor CP rights can as a whole
proffer a single model of obligations or enforcement. No particular right can be reduced only
to a single duty on the State, such as a duty to refrain from acting a particular way or the
duty to provide something. The fulfillment of each right requires the performance of both
positive and negative obligations.The obligations can be further broken down into the
tripartite typology of respect, protect and fulfil. The obligation to respect requires State
parties to refrain from intervening with a citizen’s right.26 It imposes a negative obligation and
is deemed to be cost free hence immediately applicable. The obligation to protect requires
that states take measures to prevent third parties from interfering with the enjoyment of
human rights.27  Appropriate actions may include the adoption of necessary and effective
legislative measures. The obligation to fulfil entails states taking positive measures to ensure
rights.28  The obligation to fulfil may be further disintegrated into obligations to facilitate,
promote and provide.  To comply with these obligations states must adopt and implement
comprehensive and integrated plans and strategies to ensure realisation of CP and ESC
rights. Academic literatures29 as well as the jurisprudence of major human rights supervisory
bodies state that positive and negative duties are part of the normative requirement of both
kinds of rights.30 At present, it is beyond doubt that civil and political rights instruments such

23
Vierdag, E.W.(1978) 'The Legal Nature of the Rights Granted by the International Covenant on
Economic, Social and Cultural Rights', Netherlands Yearbook of International Law, Volume 9, pp 69-
105.
24
See Article 2(1) ICESCR; Ferina Tinta, M.(2007) “Justiciability of Economic, Social and Cultural
Rights in the Inter- American System of Human Rights: Beyond Traditional Paradigms and Notions”,
Vol. 29, Human Rights Quarterly, p. 433
25
Shue H., (1980) ‘Basic Rights:  Subsistence, Affluence, and U.S. Foreign Policy’, Princeton
University Press, Princeton, New Jersey, 1st edition, p. 84
26
Note 14, p. 69
27
Chapman A., and Russell S. (2002) ‘Core Obligations: Building a framework for Economic, Social
and Cultural rights’, Antwerp, Intersentia, p. 12
28
See Note 27, p. 12
29
See Note 20 above

4
as the European Convention on Human Rights (ECHR)31 or the American Convention
on Human Rights (ACHR)32 although drafted in terms of obligations to avoid interference in
the exercise of individuals’ rights also impose ‘positive obligations’ on States Parties as
contained in the text.

Moreover there are some civil and political rights that require positive actions and resources
on the part of the duty holder. For instance, the right to vote although imposing negative
obligations requires considerable state expenditure and also calls for the State to take
positive steps to ensure that elections are free and fair. Also, the right to a fair trial 33 involves
positive obligations on the part of government as it can only be attained by the existence and
maintenance of an expensive court system. The case of Airey v Ireland34 accentuates this
point by suggesting that the right to a fair trial goes as far as constituting a right to legal aid
funding which of course involves expenditure. Conversely it is in fact possible to identify
duties of forbearance with respect to most economic, social and cultural rights. The rights to
join and form trade unions35 are primarily rights of non-interference. Protecting the privacy 36
of people on welfare requires “only” abstention from monitoring and dissemination of
information. In addition, the right to food includes the right for everyone to procure their own
food supply without interference,37 the right to housing implies the right for an individual not
to be a victim of forced eviction 38; the right to work covers the individual’s right to choose
his/her own work and also requires the State to abstain from measures that would increase
unemployment and the right to adequate health implies the obligation to avoid interference
with the provision of health care.39

Moreover the supervisory bodies of both Covenants have clarified from its General
Comments and State reports that positive and negative obligations arise from both CP rights
and ESC rights. The Human Rights Committee 40 has undoubtedly affirmed that when
interpreting Article 2 of the ICCPR the legal obligation under this Covenant is both positive

30
Sepulveda M.M., (2003) The nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights, Antwerp Intersentia Publishers, p. 124
31
European Convention on Human Rights 1950
32
American Convention on Human Rights 1969
33
Article 14 of ICCPR
34
Airey v Ireland, Application No. 6289/73, Judgment of 9 October 1979
35
Article 21 of the ICESCR (Freedom of Association)
36
Article 17 of the ICESCR
37
Eide A. (1995) ‘The right to an adequate standard of living including the right to food’ In: Economic,
social and Cultural rights: a textbook. Eide A.; Krause C. and Rosas A. (eds.), Martinus Nijhoff
Publishers, 1st edition, Dordrecht
38
Article 10 of the ICESCR
39
Toebes, B. (1998) ‘The right to health as a human right in international law’, Intersentia, Antwerp, p.
312-319
40
Article 28(1) of ICCPR; also known as the Supervisory body of ICCPR

5
and negative in nature.41 This means that States must take positive action with respect to
substantial areas such as, the right to life; 42 the prohibition of torture;43 the right to humane
treatment44 and the protection of children.45 Equally, the Committee on Economic, Social and
Cultural Rights46 explicitly stated in its Concluding Observations and General Comments that
ESC rights carry negative obligations.47

B) ‘Cost -free’ obligations and expensive obligations

In scholarly debates it has been argued that another distinction between these sets of rights
is that while CP rights were cost free, ESC rights were deemed expensive and required
government expenditure.48This argument is closely linked with the negative/positive
distinction delineated above. Currently this distinction appears to be counterfactual as it is
general knowledge that all human rights require States at the very least to establish an
institutional structure to secure an appropriate degree of compliance and this would always
entail expenditure of resources.49 All human rights impose plurality of duties that require
different levels of State involvement as well as different levels of resources. Consequently it
would be erroneous to classify one category of rights as ‘cost- free’ and the other as being
‘expensive’. While some ESC rights such as the right to equality, 50 the obligation to protect
children from exploitation,51 and the right to equal remuneration for work of equal value 52
require little or no government expenditure, the effective enjoyment of some CP rights
require government expenditure. For example, the right to life requires measures to protect
an individual’s life against State and non-State threats, to undertake investigations when
someone’s life has been taken and to prosecute and punish those who are responsible for
the unlawful taking of life before an independent and impartial court. By accepting that both
sets of rights impose positive and negative duties, we automatically accept that the so-called
distinction as to the level of resources required for their realization is flawed.

41
Human Rights Committee General Comment No. 31 para 6
42
Human Rights Committee General Comment No. 6 para 5
43
Human Rights Committee General Comment No. 20 para 10
44
Human Rights Committee General Comment No. 21 paragraphs 3 and 11
45
Human Rights Committee General Comment No.23 para 6.1
46
Supervisory body of ICESCR
47
Committee on Economic, Social and Cultural Rights, General Comment No. 7
48
See Note 30 above, p. 127
49
See Note 30 above
50
Article 3 of ICESCR
51
Article 10(3) of ICESCR
52
Article 7 (a) ICESCR

6
 C) Progressive and Immediate obligations

The argument centered on the assumption of the progressive or immediate character of the
two clusters of rights was influenced by the so-called positive and negative dichotomy
between the rights. It was contended that due their nature of imposing ‘negative obligations’,
CP rights were open to to immediate application while ESC rights were amenable to
progressive or gradual implementation due to their impositions of ‘positive obligations’.53

Legal scholars claim that this distinction is manifest in Article 2(1) ICESCR which stresses
that State parties have obligations to undertake steps with the view to achieving
progressively the full realization of ESC rights to the maximum of their available resources.
The reference to “resource availability” reflects acknowledgment that the realization of these
rights can be hampered by a lack of resources and can be achieved only over a period of
time.54 Conversely, Article 2(1) ICCPR requires States parties to immediately ‘respect and
ensure’ the enjoyment of the rights embodied in the Covenant.

Another related argument perceives ESC rights as imposing ‘obligations of result’ and CP
rights as imposing ‘obligations of conduct’.55 An obligation is an obligation of conduct that its
satisfaction demands states to undertake certain course of conduct to fulfil a given obligation
while an obligation of result requires that states achieve a specific result but the means by
which states pursue that result is not prescribed rather states are given a margin of
discretion in deciding what methods they employ to obtain the necessary result. Although it
is to an extent true that progressive realization gives states a wide degree of flexibility and
latitude with which to fulfil ESC rights, it is inapt nevertheless to narrowly classify ESC rights
as setting forth only obligations of result.  Duties in relation to ESC rights should be best
thought of as a combination of obligations of conduct and obligations of result.  The general
duty delineated in ICESCR Article 2(1) is ‘to take steps’, albeit unspecified steps, places
states under an obligation of conduct which is of immediate application. However purely
taking steps is not adequate to achieve thorough enjoyment of ESC rights. The realization of
specific rights assured by the ICESCR is categorized as an obligation of result that may be
achieved progressively. 

Besides it is now well established that the notion of progressive realization contained in
Article 2(1) of the ICESCR does not detract from the fact that the Covenant also imposes

53
Sepulveda M.M., (2003) The nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights, Antwerp Intersentia Publishers, p. 125
54
The Committee on Economic, Social and Cultural Rights Fact Sheet No.16 (Rev.1)
55
Ferina Tinta, M.(2007) “Justiciability of Economic, Social and Cultural Rights in the Inter- American
System of Human Rights: Beyond Traditional Paradigms and Notions”, Vol. 29, Human Rights
Quarterly, p. 433

7
obligations of immediate effect; hence a contrary interpretation would defeat the object and
purpose of the Covenant.56 The Committee on Economic, Social and Cultural rights has
often stressed that while the ICESCR provides for progressive realization, it also imposes
various obligations which are of immediate effect. 57 Where the immediate application of ESC
rights is not specified, it can be inferred. 58 Therefore the following paragraph will analyse the
general immediate duties imposed, before examining which specific provisions the
Committee deemed to be immediate.

Surely not all ESC rights require resources. For example the duty to ‘exercise rights without
discrimination of any kind’59and ensuring the ‘equal right of men and women’60 may not
involve resource considerations. Where resources are limited, States are still mandated to
‘strive to ensure the widest possible enjoyment’ of rights. 61 Moreover ‘a minimum core
obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of
the rights is incumbent upon every State party to the ICESCR’. 62 The implication is that every
right contains minimum core content i.e. the nature and essence of the right. Indeed it is the
standard to which no rights should fall below. 63Failing to ensure the minimum core obligation
deprives the right of its raison d'être hence it can be induced that there exists an immediate
obligation to accomplish the fundamental characteristics of the right.64

To this end the Committee on ESC rights specifies which provisions are of immediate effect.
It posits that regardless of a State party’s economic development or resource limitation, it
has an immediate obligation to provide adequate housing. 65 State parties are to ‘take
immediate measures aimed at conferring legal security of tenure’66 and also provide legal
56
Alston P. (1990) ‘U.S Ratification of the Covenant on Economic, Social and Cultural Rights: the need
for an entirely new strategy’, in American Journal International Law, Vol. 84, pp 365-392
57
Committee on Economic, Social and Cultural Rights, General Comment 3, paragraph 1 The nature
of States parties' obligations (Fifth session, 1990), Available at:
http://www1.umn.edu/humanrts/gencomm/epcomm3.htm accessed on 12th January 2012; See also,
General Comment No 11 paragraph 10
58
The Limburg Principles on the Implementation of the International Covenant on Economic, Social
and Cultural Rights, UN Doc. E/CN.4/1987/17; These principles also appear in Human Rights
Quarterly, Vol. 9, 1987, pp. 122-135. Available at http://www.unhcr.org/refworld/docid/48abd5790.html
accessed on 6th January 2012
59
Art 2(2) International Covenant on Economic, Social and Cultural rights (1966)
60
Art 3 International Covenant on Economic, Social and Cultural rights (1966)
61
General Comment No.3, para. 11, ICESCR Committee, 1990; For a complete list, see: Office of the
United Nations High Commissioner for Human Rights, Committee on Economic, Social and Cultural
Rights – General Comments, Available at: http://www2.ohchr.org/english/bodies/cescr/comments.htm
accessed on 12th January 2012
62
Committee on Economic, Social and Cultural Rights, General Comment No.3, Paragraph 10, 1990
63
Chapman A., and Russell S. (2002) ‘Core Obligations: Building a framework for Economic, Social
and Cultural rights’, Antwerp, Intersentia, p. 9
64
See Note 58
65
Sepulveda M.M., (2003) The nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights, Antwerp Intersentia Publishers, p. 176
66
Committee on Economic, Social and Cultural Rights, General Comment 4, Para 8(a), 1991

8
protection against forced evictions.67 Moreover State parties are to ‘take immediate
measures to promote the right to housing and where necessary seek international co-
operation, in accordance with articles 11, 22 and 23’ of ICESCR. 68 The Committee further
stresses that the obligation to provide compulsory primary education free of charge 69
imposes an immediate duty upon State parties with the necessary means to implement it. 70
In addition the Committee further states that the ICESCR imposes immediate obligations on
State parties in relation to the right to health 71 such as the guarantee that the right to health
will be exercised without discrimination of any kind72 and the obligation to take steps73
towards the full realization of article 12’. 74 Such ‘steps’ must be deliberate, targeted and
specific towards the full realisation of the right to health.75

On the contrary, it has been argued that while Article 2(1) ICCPR imposes an immediate
obligation there are elements of progressiveness in some of the obligations in the ICCPR.
Initially State parties were mandated to ratify the covenant once their domestic law complied
however, Art 2(2)76 was criticised for introducing the notion of progressiveness. 77

Quintessentially Art 2(2) allowed a degree of flexibility as it was unrealistic for states to be in
a position to implement all the provisions instantaneously.78 The Human Rights Committee
furthers the idea of progressiveness by emphasizing that a single act of implementation is
inadequate as State parties are to submit an initial report within one year of their entry into
force of the Covenant and also submit subsequent reports when requested by the
Committee.79 Moreover it is difficult to refute that the implementation of rights contained in
Article 1480 (equality before courts and tribunals), Article 25 (right to vote, to be elected and
equal access to public service) and Article 23(2) (right to marry) of the ICCPR involve the
gradual removal of obstacles to their implementation. Furthermore, Article 23(4) makes
reference to State parties to the ICCPR taking ‘appropriate steps’ to ensure equality of rights
and responsibilities of spouses as to marriage. This reference to ‘appropriate steps’ implies

67
Committee on Economic, Social and Cultural Rights, General Comment No. 7, Para 9 (1997)
68
Para 10, UN Conference on Human Settlements (Habitat II) E/1996/22, Annex VII
69
Articles 13 and 14 of the ICESCR
70
Committee on Economic, Social and Cultural Rights, General Comment No. 13 Para 51
71
Article 12 of the ICESCR
72
Art 2(2) International Covenant on Economic, Social and Cultural rights (1966)
73
Art 2(1) International Covenant on Economic, Social and Cultural rights (1966)
74
Committee on Economic, Social and Cultural Rights, General Comment No 14, Paragraph 30(2000)
75
Committee on Economic, Social and Cultural Rights, General Comment No. 14 paragraph 30
(2000)
76
Art 2(2) International Covenant on Civil and Political Rights (1966)
77
McGoldrick D. (1991) ‘The Human Rights Committee; Its role in the development of International
Covenant on Civil and Political rights’, Oxford: Clarendon Press, pg 12
78
See Note 77, p. 12
79
See Note 77 above, p. 12; See also, Article 40, paragraph 1 of the ICCPR
80
Article 14 ICCPR

9
that this obligation is not immediate, acknowledging that States may take some time to side-
step cultural norms that dictate against equality within the marriage.

D) Justiciable and Non-Justiciable Distinction

A “traditional” or “generational” approach to international human rights protection submits a

view where civil and political rights are detached from economic social cultural rights, the
latter being non-justiciable.81 Unambiguously ESC rights are said to be non-justiciable for the
reason that claims to a remedy when violations of socio-economic rights occur are not
amenable to adjudication by courts, or even quasi-judicial bodies such as ombudsmen or
international treaty bodies.82 To frame in somewhat different terms, ESC rights cannot be
invoked in court nor can they be applied by judges or other mechanisms that seek to protect
such rights.

A number of primary arguments embedded in ideological allegations trigger the challenge to

the justiciability of ESC rights. The first argument in support of non-justiciability is predicated
on the assumption that ESC rights are not ‘genuine rights’ but rather aspirational societal
goals whereas CP rights are rights that provide clear guidance on what is required to
implement them.83 Therefore, economic, social and cultural rights are regarded as
programmatic, involving intricate and complex policy decisions often concerning budgetary
and resource allocations. Furthermore it is argued that because ESC rights are a matter of
politics it is only right to leave such rights in the hands of the legislature and executive tiers
of government where the necessary technical expertise and knowledge of resources, as well
as an understanding of implementation are concentrated. Besides the legislature and
executive are elected to among other things, make crucial decisions regarding public policy
and devise and implement public programmes. Therefore allowing an unelected judiciary
with neither the requisite detailed understanding of public spending nor the competence to
make political decisions to take on these roles not only infringes on the rightful duties
entrusted to elected representatives; it also threatens democratic legitimacy. 84 The present
writer opines that this argument fails to accept that courts usually adjudicate on matters of
public policy anyway.

81
A Fair deal: Justiciability of ESC rights – Human Rights Features, 58th Session of the Commission
Human Rights, April 2002. Available online at: http://www.hrdc.net/sahrdc/hrfchr58/Issue3.htm#A
%20fair%20deal accessed on 12th January 2012
82
Beddard R. & Hill D. (1992) ‘Economic, Social and Cultural Rights: Progress and Achievement’,
London: Macmillan
83
Harris D ‘Cases and Materials on International Law’, 6th edition, Sweet and Maxwell, 2004, p. 655
84
Ghai, Y. & Cottrell J. (2004) (eds), Economic, Social and Cultural Rights in Practice: The Role of
Judges in Implementing Economic, Social and Cultural Rights (London: Interights)

10
The adjudication of civil and political rights often encroaches upon the political options of
governments notably with regard to the allocation of resources. Courts often have to make
decisions balancing between competing rights, for example the right to freedom of speech
versus the right to privacy. Alternatively civil and political rights also give rise to resource or
budgetary implications and likewise engage social policy questions. For instance, the
protection against torture requires financial prioritization in terms of police training,
construction of prison facilities, protection of the victims, and so forth. While it is obvious that
the realisation of civil and political rights involve allocation of resources, the related costs are
often not considered because the necessary institutions are already in place. However, CP
rights do not give rise to similar objections that exclude their judicial enforcement as judges
are seen as acting within their powers when judging matters relating to civil and political
rights. Judges are regarded as rightly undertaking an enforcement role through the review of
government policies in order to ensure adherence to constitutional principles and
international legal obligations including those relating to fundamental human rights norms.

Judicial interpretation and determination of ESC rights clearly fall within the ambit of this
function seeking to ensure that policies and actions of governments and their agents do not
infringe the needs and rights of individuals and where necessary provide remedy. 85 The
judiciary keenly filling this pivotal role in relation to ESC rights cannot legitimately be
construed as attempting to take over policy-making from the other branches of
government.86 The enforcement of ESC rights by courts was considered in length in the
Grootboom87 decision wherein the Constitutional Court of South Africa adopted a
'reasonableness' test to determine whether the State was complying with its obligations with
respect to ESC rights. According to the Court's methodology, the degree of the violation
should be considered in light of its social, economic and historical context and the capacity
of official institutions to implement programmes to address it. At the international level, the
most common argument against the justiciability of ESC rights is an allusion to the text of
Article 2 of the ICESCR. It has been argued that the ICESCR in general is structured in
means and ends and the provisions are expressed as State obligations rather than individual
rights. The debate has spawned questions as to whether it is possible to make a (quasi)
judicial assessment of whether the State has given effect to its obligation of ‘progressive
realisation’ in article 2(1) of the ICESCR (though that is not a State’s only obligation under

85
Coalition for an Optional Protocol to the ICESCR, Fact Sheet No. 7
86
Baderin M. A & McCorquodale R. ‘The International Covenant on Economic, Social and Cultural
Rights: Forty Years of Development’ in Baderin M and McCorquodale R (eds.) (2007) ‘Economic,
Social and Cultural Rights In Action’, Oxford University Press, New York, p.11
87
Government of South Africa vs. Grootboom (Constitutional Court of South Africa, Case CCT 11/00,
4 Oct. 2000

11
the treaty). Notwithstanding this, the adoption of the Optional Protocol88 to the ICESCR after
years of debate and negotiation demonstrates the emergence of a compromise that it is
possible to carry out such a quasi-judicial evaluation at the international level. This Optional
Protocol represents an important stage in acceptance of the justiciability of ICESCR
provisions before an international body.89

The Committee on ESC rights has frequently discarded the submission that Article 2
undermines enforceability. The Committee explains that ‘among the measures which might
be considered appropriate in addition to legislation is the provision of judicial remedies with
respect to rights which may in accordance with the national legal system be considered
justiciable.’90 The CESCR nonetheless regrettably notes that in relation to CP rights, ESC
rights are generally taken for granted that judicial remedies are necessary; this discrepancy
is needless either by the nature of the rights or by the relevant Covenant provisions. 91 In its
General Comment the CESCR overtly affirms that the espousal of a rigid classification of
ESC rights which positions them, ‘by definition, beyond the reach of courts, would thus be
arbitrary and incompatible with the principle that the two sets of human rights are indivisible
and interdependent’.92 It would also radically restrain the competence of the courts to protect
the rights of the ‘most vulnerable and disadvantaged groups in society’.93

In recent years jurisprudence surrounding economic, social and cultural rights have
increasingly surfaced. Domestic and regional courts have, in many instances, adjudicated
disputes relating to the enjoyment of ESC rights and consequently offering adequate
remedies to the victims. As a result, wide ranges of case law relating among others, to food,
health, shelter and education, etc. have emerged. In Mullin the Supreme Court of India held
that "the right to life includes the right to live with human dignity and all that goes with it,
namely, the bare necessaries of life such as adequate nutrition, clothing and shelter."94
Likewise the South African Constitution95 creates a robust and extensive system for the
realization of ‘socio-economic’ rights. The Constitution requires the State to take action to
realize these rights thereby commanding it to respect, protect, promote and fulfil them and to
88
Adopted in December 2008
89
Langford M. (2009) ‘Closing the Gap? An Introduction to the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights’, Volume 27, No 1, Nordic Journal of
HumanRights
90
General Comment No 3. 1990
91
Committee on Economic, Social and Cultural Rights, General Comment No. 9, paragraph 10, The
domestic application of the Covenant (Nineteenth session, 1998)
92
See Note 91 above
93
Note 91
94
Francis Coralie v The Union Territory of Delhi, 1 SCC 608 (1981); and Francis Mullin v. Union
Territory of Delhi, 2 SCR 516 (1982)
95
Constitution of the Republic of South Africa, 1996 (‘constitution’)

12
take reasonable legislative measures, within its available resources, to achieve their
progressive realization.96 Consequently the existence of domestic and regional case law
relating to economic, social and cultural rights bear witness to the direct justiciability of ESC
rights.

E) Vague and Imprecise

This alleged distinction between CP rights and ESC rights is closely linked to the argument
against the justiciability of ESC rights. While CP rights contained in the ICCPR are thought to
be well defined and have clear meanings, ESC rights contained in the ICESCR are said to
97
be ‘by nature open-ended, indeterminate and lack conceptual clarity’. Also the rights
require precision because they fail to outline the nature and extent of obligations imposed on
the State.98 For instance with the right to health, a state is obliged to improve all aspects of
environmental and industrial hygiene yet nowhere in the ICESCR does it outline the
programs or laws that will oversee such implementation. 99This means that each state is left
to interpret the standards in the ICESCR as they see fit.

It is often claimed that ESC rights are imprecise with regards to the timeline given for state
compliance. The progressive realisation requirement imposed by Article 2 of the ICESCR
contributes to the vagueness of ESC rights since states can never know for certain what
their obligations are at any particular time.100 For a court to adjudicate on a matter it must be
aware of the necessary obligations that the State is required to meet; thus without a clear
demarcation of the content and nature of ESC rights a court will be incapable of rendering a
decision.101 Succeeding this is the argument that the absence of an individual complaints
mechanism under the ICESCR has hindered its clarification process as it is well known that
the individual complaints procedures under the ICCPR 102 and ECHR103 contribute
significantly to the clarification of the scope of their obligations.104

96
See Sections 7(2) and 25(5), 26(2), 27(2) and 29(2) of the South African Constitution respectively
97
Wiles E (2006-2007) ‘Aspirational Principles or Enforceable Rights? The Future for Socio-Economic
Rights in National Law’, 22 American University International Law Review at 35, 42
98
Jheelan, N (2007) ‘The Enforceability of Socio-Economic Rights’, 2 European Human Rights
Law Review, p. 147
99
Article 12 of the ICESCR
100
Marcus D. (2006) ‘The Normative Development of Socioeconomic Rights Through Supranational
Adjudication’, 42 Stanford Journal of International Law pp. 53- 61
101
See Note 100, above
102
First Additional Optional Protocol of the ICCPR 2000
103
European Convention of Human Rights 1950
104
Sepulveda M.M., (2003) The nature of the Obligations under the International Covenant on
Economic, Social and Cultural Rights, Antwerp Intersentia Publishers, pg. 132

13
However, it is the opinion of the present writer that these concerns with regards to ESC
rights are no longer befitting. Simply because a right is ‘imprecise’ does not insinuate that it
cannot be adjudicated before a court of law. Historically, civil and political rights were
criticised as being inexact and vague however States enacted laws and judicial review have
helped delineate CP rights.105 Thus, while critics argue that ESC rights are not as precisely
defined as CP rights they must bear in mind that: our current perception of CP rights as
somewhat precise rights is owes to the fact that treaty bodies such as the European Court of
Human Rights and the Human Rights Committee via individual petition procedures,
gradually have defined the legal content of the rights.106 Furthermore, the CESCR107 have
taken tangible steps to establish the precision and exactness of socio-economic rights. In
recent years, the CESCR has begun to issue series of General Comments which elucidate
the scope and content of the rights contained in the ICESCR.108 As earlier discussed, these
General Comments have been used in South African jurisprudence to help define the scope
of disputed socio-economic rights.109 Its General Comments also offer reasonable
clarifications of how the concepts of “progressive realisation” and “available resources” apply
to such obligations.110 Therefore it is noticeable that institutionally at the UN111 there is
growing acknowledgment that socio-economic rights are capable of precision and certainty.

Conclusion
Given the indivisibility, interdependence and interrelatedness of all human rights it is
therefore reasonable to assert that the protection of CP rights ought to have little significance
without the effectual protection of ESC rights. Yet, in the years following the Vienna
Declaration, Civil and Political rights have drawn much attention and been accorded more
status in theory and practice whereas Economic, Social and Cultural rights have frequently
been disregarded and disparaged. This is unfortunate for a number of reasons most of which
have been listed and discussed in this assessment. Notwithstanding this, interests in
advancing Economic, Social and Cultural rights are emerging and also commitments by
academics, some governments and the public to guarantee greater overall protection and
enjoyment of ESC rights is likewise increasing. ESC rights are now for the most part
105
Note 100, page 53
106
Koch E. I (2003) ‘The Justiciability of Indivisible Rights’ 72 Nordic Journal of International Law
No.1, p. 3-7
107
Committee on Economic, Social and Cultural Rights
108
For a complete list, see: Office of the United Nations High Commissioner for Human Rights,
Committee on Economic, Social and Cultural Rights – General Comments Available at:
http://www2.ohchr.org/english/bodies/cescr/comments.htm accessed on 12th January 2012
109
Mazibuko and Others v The City of Johannesburg [2008] 06/13865 (Unreported, Tsoka J, 30 April
2008
110
Chapman A. (1996) “Violations Approach” for Monitoring the International Covenant on Economic
Social and Cultural Rights’, 18 Human Rights Quarterly 23, p. 409
111
Also known as United Nations

14
recognized as occupying a proper place on the international human rights level combined
with CP rights.

15