movements and civil society;122 and even timing of jurisprudential development.123 In the
setting of economic and social rights, it is difference, rather than uniformity, that marks
the comparative setting.124
Yet proportionality-inflected reasonableness has already been a successful transplant in
economic and social rights review. The success of Grootboom influenced the drafting of
the new Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights.125 In the face of heated contestation of alternatives – such as setting out a
standard of “unreasonableness”, or providing for a “margin of appreciation” or “margin
of discretion”, the new OP-ICESCR requires the Committee on Economic, Social and
Cultural Rights to consider “the reasonableness of the steps taken by the State Party”,
bearing in mind “that the State Party may adopt a range of possible policy measures” for
122
YOUNG, CONSTITUTING ECONOMIC AND SOCIAL RIGHTS, supra note 7; CÉSAR RODRÍGUEZ-GARAVITO &
DIANA RODRÍGUEZ-FRANCO, RADICAL DEPRIVATION ON TRIAL: THE IMPACT OF JUDICIAL ACTIVISM ON
SOCIOECONOMIC RIGHTS IN THE GLOBAL SOUTH (2015).
123
Sandra Fredman has called for proportionality to be applied in UK positive rights cases, partly for fear
that reasonableness review will devolve into Wednesbury analysis in that setting: Fredman, New Horizons:
Incorporating Socio-economic rights in a British Bill of Rights, [2010] PUBLIC LAW 297, 317.
124
Colm O’Cinneide, The Problematic of Social Rights – Uniformity and Diversity in the Development of
Social Rights Review, in REASONING RIGHTS: COMPARATIVE JUDICIAL ENGAGEMENT 299 (Liora Lazarus et
al. eds., 2014); Brinks et al, supra note 1.
125
Brian Griffey, The ‘Reasonableness’ Test: Assessing Violations of State Obligations under the Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights, 11 HUM. RTS. L. REV.
275 (2011); see also Note prepared by the Secretariat, ‘The Use of the ‘‘Reasonableness’’ Test in
Assessing Compliance with International Human Rights Obligations’, U.N. Doc. A/HRC/8/WG.4/CRP.1
(Feb. 1, 2008) (use of “reasonableness” in nine core human rights treaties); Bruce Porter, Reasonableness
and Art. 8(4), in THE OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS: A COMMENTARY (Malcolm Langford et al, eds,. forthcoming).
31
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