18 S e cti o n ON E – GENERAL of the High Commissioner for Human Rights, and NHRIs hearing and adjudicating claims is an inherent part of a themselves. Those recommendations include the holding state’s accountability under ICESCR. The Committee on of treaty-body meetings in UN regional centres outside of Economic, Social and Cultural Rights, for example, has New York and Geneva. 17 Domestic accountability Protection by the courts A country’s commitment to its international obligations is also addressed through the domestic court system. explicitly stated: [W]ithin the limits of the appropriate exercise of their function of judicial review, courts should take account of covenant rights where this is necessary to ensure that the state’s conduct is consistent with its While the role of the courts in upholding the rule of law obligations under the covenant. Neglect by the relating to civil and political rights is well accepted, their courts of this responsibility is incompatible role in relation to economic and social rights is less clear. Historically, courts have been unwilling to provide a remedy for aggrieved individuals claiming a violation of their economic and social rights. As such decisions almost with the principle of the rule of law, which must always be taken to include respect for international human rights obligations. 20 inevitably involve the allocation of resources – a function Optional protocols considered to belong more properly to the executive arm As noted already, a state may be held accountable of government – it is thought that the courts should not through the optional protocol process. While optional become involved. That is, the issue is not justiciable. In Lawson v Housing New Zealand, 18 the complainant protocols exist for a variety of international instruments, the complexities of the social and economic rights, and the potential economic implications if a state is found to sought judicial review of a government policy to increase have not fulfilled its responsibilities in relation to such the rent of state housing to market levels, claiming that rights, hampered the development of an optional protocol she was unable to pay the rent and, as a consequence, for ICESCR. In 2008, however, the UN General Assembly would be forced to leave her home. This amounted to adopted an optional protocol to ICECSR. This deals with depriving her of affordable shelter and breaching the right progressive realisation and resource limitation by the to an adequate standard of living and, therefore, Article incorporation of a reasonableness test, which explicitly 1 of ICESCR. Williams J in the High Court held that the recognises that states may employ a range of possible matter involved “strong policy considerations and was policy measures to determine the best use of their [therefore] not amenable to judicial review”. resources to meet their obligations. Despite this, economic and social rights are increas- Policy-making ingly being viewed as justiciable, and assumptions that A state’s commitment to its international human rights courts are ill-equipped to deal with such rights are obligations is also reflected in how it develops policy. seen as questionable and not able to withstand robust The relationship between international obligations and scrutiny. 19 It is also considered that a legal process for the development of economic and social policy tends to be poorly understood. As a result, social policy is often 17 The Marrakech Statement on Strengthening the Relationship between NHRIs and the Human Rights Treaty Bodies System (2010) is accessible online at http://www.nhri.net/2010/Marrakech%20Declaration%20Jun%202010%20(EN).pdf 18 [1997] 2 NZLR 474 19 See, for example, Nolan A, Porter B, and Langford M (2007), ‘The justiciability of social and economic rights: an updated appraisal’, paper prepared for the Human Rights Consortium, Belfast. Accessible online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1434944. See also Hanks P, Walker K and Hill G (2009), ‘ESC Rights: Legal Opinion on Justiciability of ESC Rights in an Australian Human Rights Act (Dec 2009)’, Human Rights Law Resource Centre website. Accessible online at www.hrlrc.org.au/content/topics/esc-rights/ esc-rights-legal-opinion-on-justiciability 20 CESR (1998), general comment no. 9, ‘The Domestic Application of the Covenant’ (19th session, 1998) UN Doc.E/C.12/1998/24, para 14