A/HRC/32/31
not invoke such rights, a lack of resources and the absence of legal aid might make it
impossible for many violations of economic and social rights to be litigated and potential
applicants might be denied standing to sue. Even when cases get to court, the judiciary
might not be independent, the judicial culture might not be amenable to scrutinizing the sort
of issues raised by economic and social rights and the remedies available might be so weak
as to deter such litigation.
46.
Third, the literature does not pay much attention to the existence of implementing
legislation designed to promote realization of a specific right as a human right, whether or
not there is constitutional recognition. In countries like South Africa, there is very extensive
legislation (such as the Water Services Act, 1997) designed to promote or implement
economic and social rights and this often plays a key role in constitutional litigation. But in
most other countries, such legislation seems to be rare, certainly outside of the education
and health sectors.
47.
Fourth, although some of the databases of economic and social rights case law
around the world are impressive, the total number of cases is still rather limited. While
individual cases have arisen in many jurisdictions, the reality is that in only a handful of
jurisdictions have the courts generated a body of significant case law. Among the most
notable of these are Colombia, India, Kenya, South Africa and state-level courts in the
United States of America (in relation to the right to education).
48.
Fifth, the implementation of positive judicial outcomes and the search for more
creative remedies have been “an analytical and practical blind spot”.31
V. International monitoring of economic and social rights
recognition, institutionalization and accountability
49.
In monitoring civil and political rights, both the Human Rights Council and the
treaty bodies have played a crucial role in encouraging States to focus on the recognition,
institutionalization and accountability dimensions of those rights. It is much less clear,
however, that they have played a comparable role in relation to economic and social rights.
While the Council addresses economic and social rights in many different contexts, and
especially through the work of its special procedures, perhaps the best indication of its
approach can be gleaned from the universal periodic review process. In terms of the work
of the treaty bodies, the most important in this context is the Committee on Economic,
Social and Cultural Rights. The approach adopted with regard to recognition,
institutionalization and accountability in each of these settings is examined briefly below.
A.
Universal periodic review
50.
Because of its universality and its integrated approach to the human rights agenda,
the universal periodic review process is an especially important indicator of governmental
concerns and priorities. A thorough review of the operation of the process since its
inception raises concern about both the quantity and quality of economic, social and
cultural rights-related recommendations. Only one out of five recommendations adopted
have been specifically concerned with economic, social and cultural rights. Only 11 per
cent of the recommendations put forward by the regional group that have made, by far, the
31
16
César Rodríguez-Garavito and Diana Rodríguez-Franco, Radical Deprivation on Trial: The Impact of
Judicial Activism on Socioeconomic Rights in the Global South (Cambridge, United Kingdom,
Cambridge University Press, 2015), p. 8.
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