Can Minimum Core Obligations Survive a Reasonableness Standard of Review Under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights?

Abstract

In 2013, after twenty years of debate, an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights came into operation, enabling the international justiciability of this Covenant’s rights for the first time. Under this mechanism, individuals within ratifying countries can submit complaints to the Committee on Economic, Social and Cultural Rights alleging violations of Covenant rights including health. The Protocol ushers in a new era for the international justiciability of this right, with the potential to advance its normative development and offer material gains to applicants. In this light the Committee’s enforcement may prove an important crucible for the evolution of rights like health. Yet the Committee’s interpretive approach to this right may conflict with the adjudicative approach laid out in relation to the Protocol. For example, Protocol guidelines adopt a ‘reasonableness approach’ to adjudication (drawn from the South African Constitutional Court), which may contradict the Committee’s core obligations approach to interpreting economic, social and cultural rights. This analysis remains speculative since the Committee has yet to release a decision under this mechanism. Accordingly, my paper will contrast the Committee’s adjudicative rules against earlier interpretations of the right to health to analyze its potential approach to enforcement, and to consider the implications for individual complainants, domestic litigation, and indeed, the evolution of the right to health more generally.