have regard to international instruments either to enforce them directly
in monist jurisdictions where this is permitted or to use them as aids in
interpreting and applying domestic rules in dualist jurisdictions where
direct enforcement is not permitted.
The enforcement of ESC rights is hotly contested and is intertwined with
the issue of recognition. Rights are often regarded in black and white terms,
as being either fully justiciable or simply aspirational. Because economic
and social rights are justiciable with difficulty at best, they are often placed
in the aspirational category and thus not recognized as “rights”.
The justiciability of ESC rights is questioned on the grounds that they
are too vague to have clear legal content, too costly to implement and
thus too political for judicial decision, and too positive to be amenable to
court supervision. These are the reasons why ESC rights are recognized
e.g. “to the extent provided by law”. And these are the reasons why both
the ICESCR and the European Social Charter were, for so long, monitored
through state reporting procedures rather than complaints procedures like
their sister treaties, the ICCPR and the European Convention on Human
Rights.
The U.N. Committee on Economic, Social and Cultural Rights (CESCR), the
monitoring body of the ICESCR, has responded to the enforcement critique
in a number of ways. One response has been to modify the enforcement
mechanisms so that judiciarisation can now be said to be supplementing
dialogue. One change was to sharpen the reporting system itself to make
it more adversarial in nature. It did this by encouraging the submission of
“shadow reports” from national non-governmental organizations and by
issuing rather pointed public “Concluding Observations” on the individual
national reports.
A second response has been to counter the objection of vagueness by
issuing a number of documents clarifying the content of rights. In this vein,
the Committee has issued General Comments on various rights guaranteed
in the ICESCR; it has had Special Rapporteurs named to study particular
rights; and it has held “days of general discussion” on individual rights.
A third response has been to address justiciability arguments based on
cost and positive nature by clarifying the nature of State obligations under
the Covenant. In its General Comment No.3, the Committee defined them
as comprising obligations to take steps towards realizing the rights (albeit
progressively), to avoid any unjustifiable backsliding (i.e. deliberately
regressive measures) in their realization, and to assume a minimum core
obligation in regard to each right. The Committee has also endorsed a
“typology” of State obligations which disaggregates them into (1) the
obligation to respect (i.e. to refrain from interfering with the rights of
individuals), (2) the obligation to protect (i.e. to protect individuals from
interference with their rights by others), and (3) the obligation to fulfill (i.e.
to provide the object of the right, such as adequate food or housing etc.).
This well-known typology goes some way to responding to objections
of justiciability: an obligation to respect is essentially negative in nature
and does not require the use of State resources, an obligation to protect
might require State action (such as adopting legislation) but does not
place undue strain on State resources; it is only the obligation to fulfill that
raises the two obligations – costliness and positive nature – most acutely.
Another way of phrasing the Committee’s typology is in terms of State
roles rather than State obligations. In this way, the obligations to respect,
protect and fulfill suggest that the State can play a negative role as
perpetrator of a violation of a right, and positive roles as enabler and a
provider of the subject of a right. A focus on the roles played by a State
emphasizes the implementation of rights. It also provides a framework
through which to analyse rights in a disaggregated way.
The notion of indivisibility of human rights and their universality make it
almost absurd to erect any artificial glass wall between civil and political
rights on one hand and the ESC rights on the other. Additionally, this
unnecessary and ill-conceived debate creates an environment where in the
danger of diluting the significance and immediate nature of the ESC rights
looms large. The National Human Rights Commission, Bangladesh (NHRC)
deems its statutory obligation to closely monitor and report back to the
government on the status of state compliance with international human
rights treaties and conventions at least to the extent signed and ratified