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9 - Economic, social and cultural rights

Ilias Bantekas
Affiliation:
Brunel University
Lutz Oette
Affiliation:
School of Oriental and African Studies, University of London
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Summary

Introduction

Economic, social and cultural (ESC) rights include a number of entitlements, such as the right to work and the enjoyment of just and favourable conditions of work; the right to form and join trade unions; the right to social security; the protection of the family, mothers and children; the right to an adequate standard of living, which includes adequate food, clothing and housing and continuous improvement of living conditions; the right to the highest attainable standard of mental health; the right to education; and the right to participate in cultural life and enjoy the benefits of scientific progress. All these are protected under ICESCR.

Several differences are traditionally cited to distinguish the disparate legal nature of ESC and civil and political rights. Whereas states are obliged to implement the latter immediately, most ESC rights are subject to progressive realisation under the terms of the ICESCR. Moreover, because civil and political rights are considered negative obligations and thus generally only require entrenchment in the legal order of states, they are justiciable and enforceable before the courts. On the other hand, a number of states suggest that ESC rights are not justiciable, not only because they are not immediately realisable but also because their implementation requires funds and resources which parties may not possess. Thus, resource scarcity is a significant impediment to the fulfilment of ESC rights, but is also a justification for those states that are unwilling to invest money in social welfare services, especially towards the vulnerable, marginalised and the indigent. These issues will be explored in detail in this chapter.

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Publisher: Cambridge University Press
Print publication year: 2013

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