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Provision of Remedies for Violation of Economic, Social and Cultural Rights: A Comparative Study of the United Nations, Inter-American and African Human Rights Systems

Document Cited authorities 2 Cited in Related
Vincent
DOI10.3366/ajicl.2020.0314
Date01 May 2020
Published date01 May 2020
Pages298-318
INTRODUCTION

The past couple of decades have witnessed various debates and controversies concerning the status and practical implementation of ESC rights. Some commentators assert that these rights do not qualify as human rights and their recognition as such is not plausible. Others argue on the basis of practicality – socio-economic rights are too vague and the difficulty associated with their implementation outweighs their importance. The other challenge posed against these rights, usually regarded as ‘second-generation rights’, is their position in relation to civil and political rights. Proponents of the latter set of rights regard socio-economic rights as less important and assume that priority should be accorded to civil and political rights as they are the core attributes of human dignity. These views can be traced back to the political prejudice associated with socio-economic rights: since the early development of these rights is connected to authoritarian regimes in history, there is a belief that their recognition would threaten civil and political rights.

The strongest argument against the acknowledgment of socio-economic rights on an equal footing with civil and political rights, however, is related to the justiciability of ESC rights – whether or not they can possibly be claimed and enforced judicially. This controversy mainly arises due to the very nature of these rights and the peculiar state obligation they entail. Since the positive obligations attached to socio-economic rights will certainly have resource and budget implication, they require progressive realisation as opposed to immediate implementation. These special characteristics of ESC rights coupled with the doubt as to their status as human rights have led many to argue that these rights are not judicially enforceable.

Nevertheless, currently, it is well recognised that ‘all human rights are universal, indivisible and interdependent and interrelated’.1 This principle not only affirms the status of socio-economic rights as human rights, but also necessitates their implementation both at the national and international levels with the same emphasis as civil and political rights. The legal and institutional developments at different levels, including the adoption of the first Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR) that provides for individual communications at the UN level and progressive jurisprudence of regional and domestic courts, have also answered the justiciability quest. Even if the debate of justiciability is still lingering to some extent, now it has a less important place at the international arena. Hence, it is safe to conclude that the above arguments are fading and the judicial enforcement of ESC rights is being widely accepted.

Now the concern has shifted to the actual effectiveness of the individual and group complaint procedures set up at different levels. One of the challenging areas in judicial enforcement of socio-economic rights is the provision of remedies for violation of these rights. Adjudication of human rights will necessarily entail the existence and provision of remedies, which can have both procedural and substantive aspects. However, providing a remedy which will give redress for the victim and also address the systemic problem in the state, if any, is more challenging in the case of ESC rights. To start with, national and international judicial systems are not easily accessible to victims, particularly when public interest litigation is not allowed, which hinders the procedural remedy. Even after access to these judicial mechanisms is acquired and violation is pronounced, the provision of fair compensation coupled with special remedies addressing the problem on the ground is a challenge these bodies face.2 These are the main issues that the present article will seek to address.

 THE RIGHT TO EFFECTIVE REMEDIES: CONCEPTUAL AND LEGAL FRAMEWORK

International human rights law discourse is not well developed as such regarding the provision of remedies that rectify human rights violations, particularly when it comes to the role of international or regional monitoring bodies in this regard.3 At the international level, most human rights treaties do not originally include provisions that endow to a monitoring organ a power to hear complaints of human rights violations and provide adequate remedies. The power to hear individual communication is subsequently added through additional protocols, which is particularly true for the ICESCR. Even these subsequent agreements do not usually specify the type of remedies that should be provided and the scope of power of monitoring organs in this regard. The rules on remedies are rather developed by the work of human rights bodies that are derived from various other sectors of international law.4 This lack of explicit rules on the law of remedies and infant jurisprudence is not unique for the UN system – the regional human rights systems also share the same limitations, although some can be better than the others. Having this background in mind, this section will shine a light on the general concept, types and purposes of remedies in human rights law.

Since remedies are meant to rectify the wrongs done to the interest of a person, they are contingent on certain preconditions. The first important condition is the existence and breach of a legal obligation. In the context of human rights law such legal obligation may arise from treaties, customs, general principles of law and various national legal frameworks. The second requirement is that there has to be a harm or damage incurred as the result of the breach of obligation. Various factors, such as the gravity of the violation and the individual context of the victim, should be taken into account to assess harm in case of human rights violation. In this context, harm is not confined to physical or pecuniary damage suffered by a person, human rights law also recognises dignitary harm, which is moral in nature. The third condition dictates the existence of an identified or identifiable victim, which is particularly essential to claim redress using the formal legal procedures.5 Thus these three requirements must be cumulatively fulfilled to claim remedy using human rights adjudicatory mechanisms.

The term remedies indicates two different concepts. The first is procedural, that is related to the process by which courts or administrative agencies accept and decide cases of human rights violations. The second notion corresponds to the substantive remedies provided or the outcome of the procedure.6 The first concept particularly refers to access to justice, which the duty to provide effective remedies is contingent upon. Access to justice mainly implies the existence of independent and impartial institutions to which the victim of human rights violations can resort in order to get redress.7 In spite of the outcome of the case, the fairness of the procedure is an important determinant of the effectiveness of the remedy. The outcome of this process may result in pecuniary or non-pecuniary redress, which corresponds to the second concept of remedies.8 These two notions will be analysed in the subsequent sections with reference to cases of violation of ESC rights.

Provision of remedies serves various purposes, a brief discussion of which is crucial here, since the effectiveness of remedies is assessed based on their success in meeting these purposes. The primary function of legal remedies is to make good the wrong done to a person; in other words remedies serve the moral goal of correcting injustice. ‘Remedies aim to place an aggrieved party in the same position as he or she would have been had no injury occurred.’9 Hence, remedies play a vital compensatory role. The other purpose of remedies is retribution that emanates from the need to make wrongdoers take responsibility for their actions. Although the remedies are mainly about rectifying the wrong done to the victim, they also serve the purpose of condemnation by making the person responsible for the harm suffered by the former pay for their conduct.10 Remedial justice also serves an important function of individual and general deterrence, which is influencing the future conduct of the wrongdoer and other potential perpetrators, respectively.11

The other function of remedies, particularly praised in recent years for crime prevention, is ‘restorative or transitional justice’. According to the UN definition:

Transitional justice is an approach to systematic or massive violations of human rights that both provides redress to victims and creates or enhances opportunities for the transformation of the political systems, conflicts, and other conditions that may have been at the root of the abuses.12

This notion embraces a broader approach of addressing the community, apart from repairing the wrong done to the specific victim. Transitional justice is particularly pivotal in the context of human rights law where there is widespread violation, which necessitates the healing process of the whole society.13 For instance, this approach is employed in South Africa to address the grave violations committed by the Apartheid system and facilitate the transition of the country.14

The right to effective remedies is explicitly recognised in a number of international and regional human rights instruments. For instance, Article 8 of the UDHR guarantees the right of every person to get effective redress by competent national organs.15 The same right is provided in the ICCPR under the obligation of states in relation to the rights recognised therein.16 Similarly, the American Convention on Human Rights also recognises the right to get prompt redress for human rights violation and obliges states to make adequate remedial procedures available and enforce the remedies granted.17 On the other hand, the right to effective remedies is not explicitly...

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