Assessing the Relevance of the International Legal Framework in Claiming Economic and Social Rights

Abstract

This chapter presents an overview of the international legal framework most relevant to the protection and promotion of human rights through social policy. Part I focuses on the International Covenant on Economic Social and Cultural Rights and the debates it has generated since its entry into force in 1976, as well as other human rights treaties focused on groups. These debates include technical legal questions over the minimum content, justiciability, and determinacy of economic and social rights, but also conceptual debates about the possibility or efficacy of binding states to achieve common standards of economic and social rights for individuals and communities.

Part II introduces the methods by which such treaties find their way into domestic legal systems, and provide an overview of jurisprudence arising from recent legislative reforms, in jurisdictions such as the United Kingdom, Canada and South Africa. International human rights law can influence domestic courts in other ways than by giving rise directly to litigation, for example as a tool for statutory interpretation; to influence the development of the common law; as a basis of judicial review in administrative law; in the exercise of judicial discretion; and as an indicia of contemporary standards and values and therefore relevant to the context in which the state’s constitution should be interpreted and applied. Moreover, international treaties can form the basis of a wide suite of policy and budgetary tools.

This survey leads to several questions. First, is international law relevant to the promotion of human rights through social policy? If so, how is it relevant, and is its impact increasing, or decreasing? Second, has the focus on legislation and jurisprudence in the enforcement of economic and social rights by legal advocates overshadowed the normative effect of good policy design and evaluation to prevent breaches of economic and social rights before they occur?

Keywords: Economic and social rights, social policy, jurisprudence, policy design and evaluation, budget analysis