A/HRC/12/22
page 18
50. The question of access to justice and remedies for violations of economic, social and
cultural rights is critical. A proper judicial review and reparation for the victims of violations of
economic, social and cultural rights is crucial to ensure the accountability of States in this
respect. An independent judicial review of the counter-terrorism measures undertaken by States,
including those affecting economic, social and cultural rights, serves to ascertain their
proportionality, effectiveness and legitimacy. To be truly effective, the justiciability of human
rights needs to be secured at the national, regional and international levels.
51. In this connection, it is important to recall general comment No. 9 (1998) of the Committee
on Economic, Social and Cultural Rights on the domestic application of the Covenant which
states that: “It is sometimes suggested that matters involving the allocation of resources should
be left to the political authorities rather than the courts. While the respective competences of the
various branches of government must be respected, it is appropriate to acknowledge that courts
are generally already involved in a considerable range of matters which have important resource
implications. The adoption of a rigid classification of economic, social and cultural rights which
puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible
with the principle that the two sets of human rights are indivisible and interdependent. It would
also drastically curtail the capacity of the courts to protect the rights of the most vulnerable and
disadvantaged groups in society.”49
52. Additional challenges include the fact that even where economic, social and cultural rights
are subject to judicial review, the decisions of courts are often not fully implemented. This may
call for specific mechanisms to monitor compliance with judicial decisions. In addition, the
length of judicial proceedings can be a significant problem. In this respect, national human rights
institutions, such as the ombudsmen in the Latin American context, and an effective
administrative complaints system could offer swifter responses to claims regarding access to
social services and programmes.
53. In many cases when economic, social and cultural rights are violated in the context of
countering terrorism, issues of compensation, reparation and restitution are not examined. The
recent adoption of the Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights50 is a major development for the justiciability of economic, social and cultural
rights. Its approval closes a historic gap in the international human rights system. In addition to
providing a voice to the victims of human rights violations,51 the Optional Protocol enhances
victims’ capacity to seek justice for the violations of their economic, social and cultural rights
after exhausting all domestic means of recourse.52
49
Paragraph 10.
50
Adopted by the General Assembly on 10 December 2008.
51
A/HRC/4/18, annex II, paras. 32 and 33.
52
See United Nations High Commissioner for Human Rights, press release, 10 December 2008.
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