The Justiciability of Economic, Social and Cultural Rights in International Law: Balancing International Supervision and National Sovereignty

DI Lei

Abstract: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (hereinafter referred to as the “Optional Protocol”), aimed at resolving the challenges surrounding the justiciability of economic, social and cultural rights (ESCR), has been in effect for 11 years. However, this does not signify a definitive resolution of the justiciability dilemma. A review of the Covenant’s negotiation history reveals that states reached a valuable consensus on the justiciability of ESCR in domestic law. However, significant concerns persist, regarding the scope, methods, and standards of admissibility, as well as substantive issues in international the justiciability in international law. Since the adoption of the Optional Protocol, its acceptance and the operation of individual communication procedures have been far from ideal, further exacerbating the justiciability challenges of ESCR in international law. To address these challenges, individual communication procedures concerning ESCR must strike a balance between international oversight and national sovereignty. In terms of procedural issues, the Committee on Economic, Social and Cultural Rights (“the Committee”) should fully leverage admissibility criteria to screen individual communications and ensure procedural safeguards, while adhering to the boundaries of responsibilities within international human rights monitoring mechanisms. In terms of substantive issues, the Committee should further clarify the “reasonableness standard” as the substantive review criterion, avoiding ceiling-like requirements for contract states and minimizing interference with their discretion. This approach would allow the development of a predictable standard of review that combines stability and flexibility.

Keywords: economic, social and cultural rights · Optional Protocol to the International Covenant on Economic, Social and Cultural Rights · Committee on economic, social and cultural rights · individual communication procedure · reasonableness standard