In Chapter 3 of this volume, Matthew Craven describes the different channels through which such a
jurisprudence may emerge from the penetration of the Covenant on Economic, Social and Cultural
Rights into the domestic legal orders, whether through the direct application of the Covenant's
norms or through other means. Remarkably, courts in the global South ‐‐ most notably, the Supreme
Court of India, the Constitutional Court of South Africa, and various courts in Latin America ‐‐ have
been leading in this process, typically on the basis of domestic constitutional provisions rather than
relying on international human rights law (on this development, see among others, in chronological
order, Matscher (1991); Liebenberg (2001); Scheinin (2001); Ramcharan (2005); Coomans (2006);
Nolan et al. (2007); International Commission of Jurists (2008); Gauri and Brinks (2008); Langford
(2009)).
Malcolm Langford's contribution in Chapter 4 describes the background conditions that enabled this
development, and the litigation strategies that were used by claimants in these cases. He shows that
the enforcement of economic and social rights by courts depends on a variety of factors, both legal
(such as adequate protection of these rights under the constitution or by direct application of human
rights treaties, effective access to justice for victims and the provision of legal aid, and the availability
of public interest litigation allowing groups to file claims on behalf of victims) and extra‐legal
(including the existence of social movements exercising pressure "from below"). The study by David
Landau, also reproduced below as Chapter 5, offers a different and complementary perspective,
inspired especially by the role of the Colombian Constitutional Court, but moving beyond that court
to provide a comparative perspective ‐‐ and one skeptical about the ability for courts to deliver social
change that truly benefits the poor and the marginalized (see also, expressing a similar scepticism,
Rosenberg (2008)).
At regional and universal levels, courts or quasi‐judicial bodies have increasingly been recognized a
competence to assess compliance of certain situations with the duties of the State in the area of
economic and social rights. Developments in the Council of Europe and in the Inter‐American human
rights system are particularly noteworthy. Since the 1960s, a body of independent experts is tasked
with monitoring compliance with the European Social Charter, the Council of Europe instrument that
is the counterpart, for economic and social rights, to the European Convention on Human Rights
(European Social Charter (1961)). For thirty years, this body ‐‐ now called the European Committee
on Social Rights (ECSR) ‐‐ adopted "Conclusions" on reports that States submitted periodically. These
Conclusions were then reviewed by a Committee of governmental delegates (the "Governmental
Committee") before reaching the level of the Committee of Ministers of the Council of Europe; partly
because of this, and partly because of the relative obscurity with which the States' reports were
examined, the Conclusions were largely ignored even by lawyers specialized on the issues covered by
the Charter. In 1995 however, the ECSR was recognized the additional competence to receive
collective complaints, filed by non‐governmental organizations or unions alleging that a particular
legislation or policy is in violation of the concerned State's obligations under the European Social
Charter (Additional Protocol to the European Social Charter Providing for a System of Collective
Complaints (1995)). At about the same time, the original version of the European Social Charter was
improved upon: the Revised European Social Charter was adopted in 1996, building on the text of
1961 but expanding the list of guarantees and improving the control mechanism (Revised European
Social Charter (1996)). A rich body of case‐law has emerged since from the European Committee on
Social Rights, that could serve as a source of inspiration for domestic courts in Council of Europe
member States and beyond (De Schutter and Sant'Ana (2012); Benelhocine (2012)).
This development had been preceded, in the framework of the American Convention on Human
Rights, by the adoption in 1988 of the Additional Protocol to the American Convention on Human
Rights on Economic, Social and Cultural Rights (1988). This Additional Protocol, also referred to as the
"San Salvador Protocol", establishes a reporting system for the implementation of a range of
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction