The Reasonableness of Article 8(4) – Adjudicating Claims from the Margins

27:1 Nordic Journal of Human Rights 39

15 Pages Posted: 19 Jul 2014

See all articles by Bruce Porter

Bruce Porter

Social Rights Advocacy Centre

Date Written: 2009

Abstract

Reviewing the background debates and the drafting process behind the inclusion of a reasonableness standard in the Optional Protocol, this article argues that the reasonableness review that is contemplated in Article 8(4) must be guided by the right to effective adjudication and remedies for all ESC rights claimants. The drafting history shows that proposals for providing for an automatic “broad margin of discretion” in these cases or requiring a finding of “unreasonableness” were rejected in order to hold fast to the principle of adjudication that is inclusive of the claims of the most disadvantaged individuals and groups. The Article does recognize, however, that effective adjudication presupposes a recognition of institutional limits and appropriate roles. Ensuring access to effective remedies for claimants challenging the “entitlement system failures” leading to poverty and homelessness will require innovative approaches and remedial options that draw on and enhance the capacities of various actors, including adjudicative bodies, governments, claimant groups and human rights institutions.

Keywords: effective remedies, reasonableness, margin, discretion, poverty, justiciability, ESC rights

Suggested Citation

Porter, Bruce, The Reasonableness of Article 8(4) – Adjudicating Claims from the Margins (2009). 27:1 Nordic Journal of Human Rights 39, Available at SSRN: https://ssrn.com/abstract=2467578

Bruce Porter (Contact Author)

Social Rights Advocacy Centre ( email )

Canada

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