The Committee on Economic, Social and Cultural Rights—The Power of Subjective Rights: Comment with Special Focus on the Case Law of the Inter-American and the European Courts of Human Rights

Abstract

Abstract This comment approaches the subjectivity and justiciability of economic and social rights by analysing the recent jurisprudence of the Inter-American Court of Human Rights and the European Court of Human Rights. In line with Dzidek Kędzia’s contribution ‘The Committee on Economic, Social and Cultural Rights—The Power of Subjective Rights’ in this special issue, it argues that the development towards the recognition of economic and social rights as subjective rights is ongoing. The comment finds that notwithstanding certain constraints, both courts increasingly recognize economic and social rights in their jurisprudence. In doing so, they employ similar concepts and argumentative techniques as the Committee on ESCR, partly with explicit reference to the findings of the Committee, and also refer to each other. This process of mutual cross-referencing is understood to be the form of judicial dialogue that strengthens and reinforces the justiciability of economic and social rights. It is key to move one step further in the process towards the full recognition of economic and social rights as subjective and enforceable rights.