The Legality, Practicality and Justiciability of Economic and Social Rights

Updated: Feb 9

International Human Rights Law Research Paper by Charles Gimoh



Economic and Social Rights (ESR) are the socio-economic counterparts to Civil and Political Rights (CPR) within the international human rights framework, and they carry equal legal force in international law. They have been described by Virginia Bras Gomes, Chair of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) as ‘the rights of everyday life for everyday people’. These rights are spelt out in the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in various thematic conventions relating to specific groups. However, they have been a subject of controversies, especially with regard to the validity of their claim as a juridical entity in the human rights regime. These disputations have been characteristically historical, intellectual and ideological.

The importance of this essay is underscored by the fact that some of the debates surrounding the legality, practicality and justiciability of economic and social rights still exist today. This paper seeks to demonstrate that economic and social rights are legal, practical and justiciable. It is an attempt to contribute to the debate by responding to three fundamental questions about social and economic rights. The first question has to do with the legality of social and economic rights; I argue that they are a legitimate category of human rights law evidenced by their recognition and protection in international, regional, and national legal jurisdictions. The second question revolves around the practicality of social and economic rights; I posit that the obligations they impose on states are practically satisfiable universally. The third question is on the justiciability of social and economic rights; I submit that they are justiciable.

We will discuss this topic under three main sections. The first segment explores the representation of social and economic rights in international, regional and national legal jurisdictions. The next section examines the practical issues to do with the implementation of social and economic rights in states. The final segment looks at some key questions relating to the legal enforcement of social and economic rights within domestic legal jurisdictions.

The Legality of Economic and Social Rights


As stated above, the evolution of social and economic rights within the human rights system has been beset by controversies. There are historical, ideological and intellectual dimensions to these debates. We shall briefly examine these three elements, before setting forth a detailed outline specifying the legal recognition and protection of economic and social rights within the international, regional and national legal frameworks.

Historically, the argument revolves around the historical origins of social and economic rights. While David Shipman suggests that what was arguably semblances of social and economic rights date back to primordial times; Freeman counters the historical classification of ESR as second generation rights by submitting that ‘Medieval philosophers discussed the right of the needy to assistance from the rich’. Situating the origins of these rights a little closer, Fabian Klose argues, that the right to work and to subsistence, actually date back to the French Revolution. Significantly, Bill Bowring points out that as ‘binding legal documents, these made their first appearance in the West in 1919’. However, it is generally agreed that their current systematic composition and articulation in international law, is traceable to the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights.

Intellectually, there have been debates as to whether these are human rights at all. Jeremy Bentham criticised the whole concept of rights, calling it ‘nonsense upon stilts’, and Maurice Cranston, while supporting civil and political rights, has argued against the validity of social and economic rights. Henry Shue, on the other hand, takes the now prevalent view that socio-economic rights are basic human rights, and are as fundamental as civil and political rights.