themselves to be adjudicated, and the judge would necessarily act arbitrarily – making the law rather
than applying it – by seeking to provide meaning to those rights. In this volume, the argument is
made, for instance, by Vierdag in Chapter 1, and by Dennis and Stewart in their joint contribution
that appears as Chapter 6. The specific formulation differs slightly, depending on whether it is
formulated in the domestic setting (as in Vierdag's paper) or whether it addresses international
monitoring (as where Dennis and Stewart question the attribution to the Committee on Economic,
Social and Cultural Rights of a competence to receive individual communications). By adjudicating
social and economic rights, domestic jurisdictions would be exceeding their powers under a classical
understanding of separation of powers : courts should leave it to the Legislature or to the Executive
to implement social and economic rights, since they have no legitimacy to make choices of social
policy. And because of such indeterminacy, it would run counter to the State's sovereignty for a body
such as the Committee on Economic, Social and Cultural Rights, to fill in the gaps of the Covenant,
and to draw concrete implications ‐‐ and real obligations ‐‐ from its vague provisions.
The two other arguments are, in a sense, derivative: once the argument of indeterminacy is retained,
they seem to follow by implication. One is the argument of democratic self‐determination: courts or
expert bodies would not have the required legitimacy to second‐guess choices made by
democratically elected assemblies, or (where the same argument is expressed to oppose the role of
international supervisory bodies) following decision‐making processes that are internal to the State.
A third and final argument against the adjudication of economic and social rights, again linked to the
supposed indeterminacy of these rights, is the argument of competence. Courts, it is said, are ill‐
equipped to deal with complex, society‐wide issues, and the adjudicatory setting is inappropriate for
the resolution of problems of social policy: because the enforcement of economic and social rights is
not a matter of legal interpretation as much as a matter of social policy, it is another type of
expertise that we need, that of health specialists or urban planners, not that of judges or human
rights experts.
These arguments carry a particular weight once we consider the "multipolarity problem": courts or
quasi‐judicial bodies generally decide on a case‐by‐case basis, focusing on the interests of the
individual litigant, which per definition would make them ill‐suited as fora to decide on society‐wide
issues ‐‐ such as how to rank priorities in spending between education, health, public housing, or
defence, or whether it is more important to save the life of one individual requiring expensive life‐
saving medical treatment or to free funds for primary healthcare services to reach more people in
impoverished areas (Holmes and Sunstein (1999): 95).
The answers to the sceptics' views about the adjudication of economic and social rights fall in three
broad categories. One answer is straightforward. It is to reaffirm that the adjudication of claims
based on economic and social rights is quintessentially a task of legal interpretation, that jurists ‐‐
courts and independent human rights experts ‐‐ are in fact best equipped to perform. That is, in
essence, the approach followed by the scholars who have proposed various methodologies to give
"concrete meaning" to economic and social rights, in order to overcome the argument of
incompetence. A representative sample of these efforts is offered in Part III of this volume, since the
contributions collected in this part provide various methods through which discussions on policy
issues (on how to realize certain aims judged to be socially desirable) can be transformed into issues
of legal interpretation (on how to assess compliance with the requirements of economic and social
rights).
These efforts are briefly reviewed below. Let us note however, for the moment, that we are
seemingly faced with a paradox, that the article of David Landau presented in Chapter 5 helps bring
to light. The paradox may be formulated as follows: It is precisely where the courts intervene with the
greatest legitimacy, by preserving existing entitlements or prohibiting steps backwards in the
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CRIDHO‐WP‐2013/2: O. De Schutter – Economic,Social and Cultural Rights as Human Rights: An Introduction