Litigation on the progressive realisation of economic, social and cultural rights: under what conditions may it be strategic?

Abstract

Progressive realisation is proclaimed in international human rights treaties as a pillar of Economic, Social and Cultural Rights (ESCR). However, while the principle has been acknowledged in abstract terms by international and national judicial and quasi-judicial bodies, there are only a few examples of partial application of progressive realisation in individual cases. This paper contributes to the identification of the legal principles, arguments, jurisdictions and, in general, the conditions under which it may be fitting to explore and push the limits of judicial enforceability of the progressive realisation of ESCR in national, regional and international judicial and quasi-judicial bodies. The paper argues that at least the following criteria should be taken into account when pursuing litigation in this area: a) whether the legal obligation of progressive realisation exists in the first place, either as direct recognition in national law or via incorporation of international human rights law, b) whether the case can be articulated as a violation of an immediate obligation or minimum core obligation underpinning progressive realisation, such as the obligation to take steps and the obligation not to discriminate, c) the level of concreteness of the positive obligation to realise ESCR progressively, d) the existence, pros and cons and possible use of earmarking as a budgetary tool, e) the possible extension of principles and practices already embraced by judges to the realm of progressive realisation, principles and practices that will vary from jurisdiction to jurisdiction, f) the timeframe in which steps to the maximum of available resources were taken or not taken, g) in the case of domestic litigation, whether the State accepted the jurisdiction of an international monitoring body, where the case could be submitted after exhausting internal remedies, and i) the key role of civil society as leaders and galvanisers of an associated campaign or as providers of information relevant for the case and/or its implementation.