Implementation of Economic, Social and, Cultural Rights: Perspectives from Deliberative Democracy

Author:Alicia Pastor Camarasa
Position:LLB (Université Catholique de Louvain), LLM (King's College London)
Pages:214-233
© 2016 Alicia Pastor Camarasa and Dublin University Law Society
IMPLEMENTATION OF ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS: PERSPECTIVES FROM
DELIBERATIVE DEMOCRACY
ALICIA PASTOR CAMARASA*
Introduction
The 1986 International Covenant on Economic, Social and Cultural Rights
(ICESCR),1 currently ratified by 166 countries,2 recognises economic,
social and cultural rights (ESCRs) as human rights. Since the late 1950s,
substantial geopolitical changes have affected the recognition of human
rights. After successive waves of decolonisation and the fall of the Soviet
Union, many countries have included ESCRs alongside traditional civil and
political rights (CPRs) in their constitutions or have made them judicially
enforceable.3
Thirty years after the adoption of the ICESCR, however, the issue of
global inequality remains significant on the global policy agenda. ESCRs,
and their judicialisation, have received considerable attention from scholars
and theorists alike. Proponents of a variety of ideological schools have
advocated for the judicialisation of ESCRs as a purpose-built and fast
solution to social inequality. However, a chorus of opposing voices argue
that the judicialisation of ESCRs (whether on a constitutional basis or
otherwise) would be, at best, an inefficient tool to ensure their effective
implementation. Some have gone as far as to argue that enshrining ESCRs
in constitutions would render the foundational text a mere collection of
* LLB (Université Catholique de Louvain), LLM (King’s College London). The author would
like to thank her family and Lukas Clark-Memler for their unconditional support. She wishes
to express her gratitude to her supervisor, Professor Cindy Skach, for her thoughtful and
inspiring guidance throughout the writing process. Any faults, errors or omissions remain the
author’s own.
1 International Covenant on Economic, Social and Cultural Rights (1966), 993 UNTS 3
[ICESCR].
2Ratification Status for CESCR - International Covenant on Economic, Social and Cultural
Rights,
3.en.pdf > (visited 12 February 2016).
3 Ellen Wiles, “Aspirational Principles or enforceable rights? The future for socio-economic
rights in national law” (2006) 22:1 AmUInt'l LRev 35, at 37.
2016] Perspectives from Deliberative Democracy
215
“good intentions,” widen the democratic gap and damage the system as a
whole.4
The practical difficulties of judicialising ESCRs often overshadow the
conceptual barriers. Enforcing ESCRs naturally provokes questions about
the fair allocation of scarce resources. Without unlimited resources,
governments and policymakers must inevitably prioritise certain rights over
others, selectively allocating resources to further only a handful of causes.
This style of decision-making, it will be seen, often unfairly restricts the
benefits of ESCRs to certain sections of the population. This essay argues
that many of these practical injustices stem from an inadequate institutional
framework. An institutional framework that leaves ESCRs unenforced and
unenforceable calls into question their status as human rights. The purpose
of this essay is manifold: it aims to analyse the issues raised by the
implementation of ESCRs and then forward the notion that these difficulties
could be circumvented by reinterpreting the implementation of ESCRs from
the perspective of deliberative democracy.
This essay is divided into three parts. The first part outlines the two
major issues facing the implementation of ESCRs. The second part offers a
critique of the current model of representative democracy in the context of
the implementation of ESCRs. Following the seminal work of Habermas,
Gutmann and Thompson, the second part continues by outlining the
principles of deliberative democracy that will be tested in the third part.
Finally, after considering some of the most compelling arguments raised by
opponents of the judicialisation of ESCRs, the third part offers a fresh
approach to the question of the implementation of ESCRs by exploring
heterodox institutional engineering. It will be argued that mechanisms of
deliberative democracy could circumvent many of the barriers raised against
ESCRs.
I. Economic, Social, and Cultural Rights: An Overview
The end of WWII, the decolonisation movement and the fall of the USSR
triggered consecutive waves of democratization during the 20th century.5
These waves hit countries from the shores of Europe to Africa and the
Americas. Freedom House, which ranks countries according to their
citizen’s freedom to exercise political rights and civil liberties, noted that by
4 Cass R. Sunstein, “Against Positive Rights” in Andras Sajo (ed.), Western rights?:
Postcommunist Application (Kluwer Law International, 1996), at 225.
5 Robin Luckham, Anne Marie Goetz, Mary Kaldor, “Democratic Institutions and Politics in
Context of Inequality, Poverty and Conflict” (1998) IDS Working Paper 104.

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