The Introduction to this book identified four key factors that have historically contributed to the marginalisation of the right to science: its peripheral positioning within the ICESCR, its classification as a cultural right, the misinterpretation of the civil and political (CP) versus economic, social and cultural (ESC) rights dichotomy and the ambiguity surrounding its normative content. Of these, the latter three have particularly reinforced the misconception that ESC rights – science among them – are inherently non-justiciable.
This chapter explores the justiciability of the right to science at the international level, considering whether legal or structural barriers continue to impede its enforcement. Where such obstacles exist, the chapter seeks to identify them and suggest how they might be overcome. A deep understanding of the justiciability of the right to science is essential to enable rights holders to exercise this right and to hold duty bearers accountable, thus operationalising the right in practice.
The roots of the justiciability debate lie in the post-UDHR architecture of the international human rights framework. The decision to split the rights recognised in the UDHR into two separate treaties – one for ESC rights (ICESCR) and another for CP rights (ICCPR) – created an enduring structural division. Despite later efforts to bridge this gap, including the 1993 Vienna Declaration affirming that all human rights are ‘universal, indivisible, interdependent and interrelated’Footnote 1 and the 2008 adoption of the Optional Protocol to the ICESCR (OP-ICESCR),Footnote 2 doubts about the justiciability of ESC rights persist – particularly in legal and political cultures shaped by Western jurisprudence. These lingering doubts continue to undermine the full realisation of ESC rights, including the right to science.
To provide a clear and coherent framework for this analysis, this chapter is structured into four parts, each building upon the last. The chapter opens with a brief historical overview of the legal evolution from the UDHR to the creation of the two Covenants, drawing on recent scholarship to frame the emergence of the CP/ESC rights divide. The analysis then turns to defining justiciability at the international level and distinguishing it from related but distinct concepts such as enforcement, compliance, adjudication and implementation – all of which are relevant to the broader argument of this book. Third, the chapter addresses a series of conceptual misconceptions that have long shaped the discourse around the alleged non-justiciability of ESC rights. These critiques challenge entrenched assumptions and seek to correct the historical narratives that have hindered the legal recognition and enforcement of these rights. The final strand of the chapter brings the discussion into the present by exploring the contemporary landscape of justiciability. It introduces the distinction between formal justiciability – whether mechanisms for adjudication exist – and material justiciability, which relates to the legal clarity and enforceability of a right’s content. In doing so, it highlights a critical gap: while formal justiciability has been established, the material justiciability of the right to science remains underdeveloped. This insight sets the stage for the remainder of the book, which aims to contribute to closing that gap by advancing a clearer understanding of the right’s normative content and legal enforceability.
2.1 Tracing the Historical Journey from One Declaration to Two Covenants
The UDHR, ICCPR and ICESCR, collectively referred to as the International Bill of Rights, form the foundational texts of modern international human rights law. The adoption of the UDHRFootnote 3 by the United Nations General Assembly in 1948 marked a seminal moment, establishing a common standard of achievement for all peoples and nations. Eighteen years later, the international community gave legal effect to many of these rights through the ICCPRFootnote 4 and the ICESCR,Footnote 5 both adopted on 16 December 1966.Footnote 6 These two Covenants, which entered into force simultaneously in 1976, became the first international human rights treaties to impose binding legal obligations on state parties.Footnote 7 As of May 2025, 175 states had ratified the ICCPR,Footnote 8 while 173 have ratified the ICESCR,Footnote 9 reflecting near-universal commitment to the rights and obligations enshrined in these instruments.
Despite the broad ratification of both Covenants, a persistent divergence in the treatment of ESC rights and CP rights continues to shape scholarly and legal discourse.Footnote 10 This disparity is evident not only in theory but also in practice, affecting how these rights are interpreted, implemented and enforced. The ongoing tension invites a fundamental question: what historical, legal and conceptual factors have fuelled this enduring split in the understanding and application of human rights? And how does this legacy continue to influence the development of international human rights law today?
2.1.1 The Narrative of Competing Ideologies: The East–West Dichotomy Explored
The commonly accepted narrative regarding the bifurcation of human rights into two distinct Covenants – the ICCPR and the ICESCR – is often attributed to the ideological tensions of the Cold War. According to this view, the division stemmed from competing perspectives between the Western and Eastern blocs: while the West framed ESC as requiring distinct implementation mechanisms, the East, along with many non-aligned states, insisted on the equal recognition and treatment of all human rights.Footnote 11 This ideological divide is frequently cited as the pivotal moment that led to the adoption of two separate instruments. From there on, the conventional interpretation that ESC rights are aspirational and subject to progressive realisation gained traction.Footnote 12
A number of scholars have critically revisited the conventional narrative,Footnote 13 with some going so far as to describe the traditional dichotomy between civil and political (CP) rights and economic, social and cultural (ESC) rights as ‘revisionist history of the worst kind’.Footnote 14 Building on this reappraisal, Boyle offers a more nuanced account of the origins of the bifurcation that led to the adoption of two separate Covenants. She challenges the long-standing assumption that this division was a direct consequence of Cold War ideological antagonism.Footnote 15 Instead, her analysis suggests that the initial rationale was not ideological, but procedural. Following the adoption of the UDHR, the UN General Assembly mandated the Commission on Human Rights to draft a single, unified Covenant to give effect to the rights enshrined in the Declaration. This envisioned ‘Covenant of Human Rights’ was intended to encapsulate both ESC and CP rights, providing mechanisms for implementation and legal redress for all human rights declared in the UDHR.Footnote 16 The UNGA underscored the inseparability of these rights, concluding that ‘when deprived of economic, social and cultural rights, man does not represent the human person whom the Universal Declaration regards as the ideal of the free man’.Footnote 17 As such, it was not the drafters’ intent to water down the status of ESC rights; they even included a specific article in the UDHR as a prefatory note on ESC rights, which led to the adoption of Art. 22 UDHR:
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Boyle contends that the incorporation of Art. 22 into the UDHR was a deliberate effort by its drafters to emphasise the importance of ESC rights, reinforcing the principle of indivisibility among all human rights.Footnote 18 She argues that the articulation of Art. 22 UDHR marked a foundational moment of differentiation – aimed not at undermining but rather enhancing the substantive realisation of ESC rights.Footnote 19 The inclusion of Art. 22 was prompted by the recognised practical differences of ESC rights from CP rights. ESC rights, as understood, required material support from the state, necessitating a unique implementation approach. Advocacy for a single Covenant stemmed from a dual rationale: first, to ensure that ESC rights were enshrined in a legally binding document; second, to compel Western states to equally emphasise implementing both ESC and CP rights.Footnote 20
2.1.2 Practical Bifurcation: Contrasting Implementation Mechanisms
While the UDHR succeeded in articulating civil, political, economic, social and cultural rights within a unified and concise framework, consensus on how these rights should be implemented proved more elusive. The obligation to realise ESC rights ‘in accordance with the organisation and resources of each State’ underscored the stark disparities in socio-economic development among the parties to the Declaration. This recognition of unequal capacities was a decisive factor in the eventual decision to draft two separate Covenants.Footnote 21 Post-colonial states, notably India, voiced concerns about the feasibility of implementing ESC rights as envisioned in Art. 22 of the UDHR, given the wide-ranging developmental challenges they faced. They emphasised that, without international support – particularly from more economically advanced countries – any uniform standard would be impracticable. Given the diverse developmental stages, imposing a uniform standard for these rights across all states was deemed unrealistic, which ultimately led to the formulation of two distinct Covenants.Footnote 22
The need for differentiated implementation mechanisms culminated in the Separation Resolution of 1952,Footnote 23 which formally endorsed the drafting of two separate Covenants. Crucially, however, the Resolution also affirmed the principle of indivisibility by calling for the simultaneous adoption and signature of both treaties. The bifurcation was thus rooted not in a rejection of ESC rights, but in pragmatic considerations regarding their implementation. This development also explains the differing nature of state obligations enshrined in the Covenants – specifically, Art. 2(3)(b) ICCPR and Art. 2(1) ICESCR.Footnote 24
2.1.3 Parallel Progressions: The Trajectories of Separate Covenants
Following the adoption of the two Covenants, the ICESCR initially occupied a less favourable position than the ICCPR, owing to notable disparities in their respective monitoring frameworks and implementation provisions. Three key factors contributed to this imbalance. First, the ICCPR, from the outset, was equipped with a robust triad of monitoring mechanisms: periodic state reporting, an individual complaints procedure and an interstate complaint mechanism. In contrast, the ICESCR initially provided only for state reporting obligations, lacking any mechanism for individual or interstate complaints. Second, the ICCPR benefited from the oversight of a dedicated supervisory body, the Human Rights Committee (HRC), whereas no such body was created for the ICESCR at the time of its adoption. Instead, the task of monitoring compliance with the ICESCR was entrusted to the Economic and Social Council (ECOSOC) – a political rather than expert entity. Finally, it was not until 1987, more than a decade after the ICESCR had entered into force, that ECOSOC established the CESCR, an independent expert body, to assume supervisory functions under the Covenant.Footnote 25 Thirdly, the Covenants differ in their provisions on state obligations. While the rights in the ICCPR are to be immediately respected and ensured as per Art. 2 ICCPR, the rights under the ICESCR, as outlined in Art. 2, were intended for progressive realisation, a new and yet undefined concept.
Thus, the comparatively less advantageous initial position of the ICESCR and its subsequent development trajectory concerning the ICCPR have contributed to solidifying misconceptions regarding the dichotomy of human rights, culminating in an oversimplified, mistaken view positioning ESC, unlike CP, rights as non-justiciable. Before addressing and correcting these enduring misconceptions, it is necessary to first define what is meant by justiciability at the international level.
2.2 Defining Justiciability at the International Level
Justiciability at the international level is ‘the quality of a legal rule to be invoked before judicial bodies and adjudicated upon’.Footnote 26 The International Commission of Jurists defines it as:
the ability to claim a remedy before an independent and impartial body when a violation of a right has occurred or is likely to occur. Justiciability implies access to mechanisms that guarantee recognized rights. Justiciable rights grant right-holders a legal course of action to enforce them, whenever the duty bearer does not comply with his or her duties.Footnote 27
Justiciability therefore entails more than the formal recognition of rights: it requires access to effective mechanisms that ensure their enforcement. A right is justiciable when its holders can bring claims before a competent authority, which in turn must have the ability to assess these claims and deliver suitable remedies to victims.Footnote 28
Before a claim may be brought to the international level, however, domestic remedies must typically be exhausted. This raises a pertinent question: What is the status of justiciability for ESC rights at the national and regional levels?
2.2.1 Justiciability at the National Level
At the national level, a discernible trend exists towards the increasing acknowledgement of the justiciability of ESC rights.Footnote 29 For instance, although Switzerland ratified the ICESCR in 1992, the Federal Supreme Court has traditionally maintained that the rights enshrined in the Covenant are not justiciable, basing this position on the alleged non-self-executing character of ESC rights within the Swiss legal system. However, the non-self-executing character of a provision does not automatically preclude its justiciability, as the two are distinct legal concepts (see Section 2.2.3). Furthermore, regarding ESC rights primarily as legislative directives, the Federal Supreme Court precludes their invocation before it.Footnote 30
More recently, the Court has adopted a somewhat less rigid stance and acknowledged that ESC rights might be considered justiciable in instances of arbitrary state action or if a legislative or executive omission contravenes ICESCR objectives.Footnote 31 Despite this incremental shift, the Court maintains the general principle that ESC rights are not justiciable,Footnote 32 a particularly deplorable stance given that Switzerland has faced criticism from the Committee, which expressed its concerns in the Concluding Observations to Switzerland’s first state report in 1998Footnote 33 and again in 2010.Footnote 34 The Committee has emphasised that the domestic application of the ICESCR should adhere to two fundamental principles of human rights law: Art. 27 VCLT, which stipulates that a party cannot use the provisions of its domestic law as a justification for failing to fulfil a treaty obligation; and Art. 8 UDHR, asserting that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted to them by constitution or by law.Footnote 35 This is echoed in the Maastricht Guidelines on Violations of ESC rights: Principle 22 stipulates, ‘Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels’.Footnote 36 Whether Switzerland’s next state report changes course remains to be seen.
Interestingly, a study issued by the Swiss Centre of Expertise in Human RightsFootnote 37 argues that Switzerland in fact already fulfils the majority of the rights protected in the Covenant and the Court should thus depart from the argument that ESC rights merely entail a programmatic character to policymakers.Footnote 38 With regards to the question of the justiciability of the freedom of science protected in Art. 15(3) ICESCR, the study’s authors conclude that, because freedom of science is protected in the Swiss constitution, federal laws and cantonal constitutions and laws, several individually justiciable claims could theoretically be brought forward based on the ICESCR.Footnote 39
2.2.2 Justiciability at the Regional Level
At the regional level, the trajectory of justiciability within various human rights frameworks has varied. However, the overarching trend indicates an increasing recognition and acceptance of the principle of the justiciability of ESC rights. These shifts are indicative of a global movement towards acknowledging the justiciability of all human rights across diverse legal systems and thus reflect a growing consensus that human rights, regardless of their categorisation as civil, political, economic, social or cultural, warrant judicial consideration and enforcement.Footnote 40
2.2.3 Contextualising Justiciability: Unravelling Key Legal Concepts
To properly grasp the scope and role of justiciability within the human rights framework, it is helpful to briefly situate it in relation to other foundational legal concepts – namely, implementation, compliance, monitoring, accountability, enforceability and adjudication. These terms, while distinct, are often discussed interchangeably in both legal literature and practice, leading to conceptual ambiguity. Clarifying their individual meaning and how they relate to justiciability contributes to a more precise understanding of the right to science as a justiciable right.
That said, the aim of this section is not to offer a comprehensive theoretical treatment of each concept. Rather, it provides a concise overview and shared vocabulary tailored to the specific purpose of this book: assessing the justiciable normative content of the right to science. A deeper doctrinal engagement, while certainly relevant in broader academic discourse, would exceed the focus and objectives of the present study.
2.2.3.1 Implementation
Implementation is understood as the (full) realisation of human rights, which can occur inter alia through laws, regulations, judicial and quasi-judicial decisions, policies, plans, programmes, projects, practices or other interventions or initiatives designed to ensure the realisation of human rights.Footnote 41 Implementation mainly occurs at the national level and is not explicitly detailed by international law, except for general implementation clauses such as Art. 2(1) ICESCR. In this book, implementation is understood broadly as the application and enjoyment of human rights at the national level, implemented by legislative, administrative or judicial authorities. It also includes the use of human rights within intergovernmental relations, as well as their monitoring and enforcement by specific human rights treaty bodies and courts at both the regional and international levels.Footnote 42 In essence, the term ‘implementation’ serves as an umbrella concept, under which all subsequent key legal concepts related to human rights fall.
2.2.3.2 Compliance
Compliance addresses the conformity of state behaviour to the legal framework. In other words, it assesses the degree of implementation of a right. The concept of (non-)compliance should be perceived as existing on a spectrum rather than as a binary dichotomy.Footnote 43 It is possible for a state to have taken steps towards implementing human rights yet still fall short of full compliance with the overarching human rights framework. As such, for human rights to be truly effective, both implementation and compliance are indispensable.Footnote 44 Finally, compliance operates on two levels: first-order compliance (adherence to rules) and second-order compliance (adherence to rulings).Footnote 45
2.2.3.3 Monitoring
Monitoring involves the oversight role played by competent bodies in supervising the implementation of human rights, which can be courts on the national, regional or international levels as well as UN treaty bodies, such as the CESCR. These monitoring bodies have the authority to enforce human rights standards by intervening when a government falls short of full compliance with its obligations. In instances where a state fails to fully implement an ESC right, these bodies can take the necessary measures to ensure adherence to international human rights law.Footnote 46
2.2.3.4 Accountability and State Responsibility
Accountability arises when the state or its agents infringe upon legal rights and obligations, signifying a situation where the implementation of human rights fails to meet the required standard of compliance. Thus, accountability serves as a pivotal connection in instances where implementation falls short of compliance.Footnote 47 Closely linked to accountability is the concept of state responsibility, which refers to the legal consequences a state incurs when breaching its international obligations.Footnote 48 While state responsibility is central to public international law – and arguably to the enforcement of all rights – its full exploration falls outside the scope of this book, which focuses on the procedural and normative aspects of justiciability under international human rights law. However, it should be acknowledged that justiciability is one potential pathway through which state responsibility can be operationalised, particularly when the ICJ has the authority to determine violations and remedies.
2.2.3.5 Enforceability
Enforceability encompasses ‘the execution of the legal regime created by human rights instruments’.Footnote 49 In simpler terms, enforceability means ensuring that states or their agents, when failing to adhere to the rules outlined by human rights laws, are compelled to comply. This enforcement is typically implemented by competent authorities, who may employ a variety of measures to bring non-compliant entities back into compliance. As such, enforceability entails a certain level of discretion. It often depends on the state’s judgment to decide how the legal framework is applied. A fundamental requirement for enforcement is the clear definition of the rights and obligations emanating from the human rights system.Footnote 50
2.2.3.6 Judicialism and Adjudication
Judicialism pertains specifically to the court system, where issues can be brought before a court of law for judicial review.Footnote 51 If a right is amenable to other forms of review processes, such as quasi-judicial mechanisms, it is considered suitable for adjudication.
2.2.3.7 Justiciability in Context
Justiciability represents a crucial aspect of human rights implementation and serves as a mechanism for accountability, aiming to ensure compliance with human rights laws and their proper implementation.Footnote 52 Moreover, justiciability involves judicialism and adjudication through the use of judicial or quasi-judicial bodies to review and, if necessary, correct state actions or omissions, ensuring either partial or full compliance with legal obligations. Although distinct, justiciability and enforceability are interconnected. Justiciability often comes into play when a lack or inadequacy in the enforcement of a right exists. It thus functions as not only a means of implementation but also a safeguard ensuring the effective, appropriate enforcement of human rights.Footnote 53
2.3 Setting the Record Straight on Justiciability
Following the presentation and contextualisation of justiciability at the international level, this section seeks to clarify the justiciability of ESC rights, debunking misconceptions around the dichotomy of human rights as an oversimplified, reductive legal fiction. These misconceptions have long shaped discourse and practice, often reducing a complex legal and normative relationship to a simplified and ultimately misleading dichotomy:Footnote 54
first generation v. second generation
non-political/non-ideological v. ideologically divisive/political
real or legal rights v. aspirations or programmatic goals
negative v. positive state obligations
cost free v. expensive
immediate v. progressive
self-executing v. non-self-executing
manageable v. unmanageably complex
precise v. vague
Rather than rehashing the well-trodden scholarly discourse on the adoption and alleged dichotomy of the two separate Covenants,Footnote 55 the following sections concisely outline the four most frequently cited dichotomies underpinning debates on the justiciability versus non-justiciability of ESC rights.
2.3.1 Real Rights v. Aspirational Goals
To challenge the philosophical dichotomy framing CP rights as legal rights and ESC rights as political aspirations,Footnote 56 it is critical to affirm that ESC rights are indeed legitimate human rights for individuals and groups leading to legal obligations for states that have ratified the ICESCR.Footnote 57 The debate over whether ESC rights constitute legal rights can be definitively settled, as eloquently expressed by Alston and Quinn: ‘The concept of economic, social, and cultural rights has long generated controversy among philosophers, as indeed has the very notion of human rights itself. From a legal perspective, however, this controversy should have been laid to rest by the adoption of the ICESCR by the United Nations General Assembly in 1966.’Footnote 58 Hence, the ICESCR creates legal rights and obligations for states that have ratified the treaty,Footnote 59 which accentuates the recognition and enforceability of ESC rights and challenges misconceptions regarding their ‘secondary’ status compared to CP rights.Footnote 60
2.3.2 Self-Executing v. Non-Self-Executing Rights
Direct applicability – the self-executing character of a provision – and justiciability are related but embody distinct principles within legal theory, influencing the potential for legal rules to be invoked in court settings. Direct applicability, primarily associated with treaties, concerns domestic law and depends on the clarity and specificity of treaty provisions for enforcement by individuals. By contrast, justiciability, which applies to any rule of law regardless of its origin, operates at both the domestic and international levels and allows rules to be invoked before competent bodies. The main differences thus lie in the scope, level of application, grounds for the non-invocation of courts and the conditions under which rules may become enforceable.Footnote 61
As early as 1990, in its General Comment No. 3 on the nature of states parties’ obligations, the Committee noted several self-executing provisions within the ICESCR, including Art. 3, 7(a)(i), 8, 10(3), 13(2)(a), (3), (4) and 15(3), which are directly applicable for courts without further elaboration. The Committee concluded, ‘Any suggestion that the provisions indicated are inherently non-self-executing would seem to be difficult to sustain’Footnote 62 and further emphasised in General Comment No. 9 on the domestic application of the Covenant, ‘It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. Many of them are stated in terms which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing’.Footnote 63
2.3.3 Non-political v. Political Rights and the Separation of Powers
Another assumed dichotomy prevalent in the past was based on the belief that the rights enshrined in the ICCPR could be adjudicated by competent bodies without affecting resource allocation. This contrasted sharply with the ICESCR, which was seen as primarily concerned with the allocation of resources for their implementation. According to this view, decisions on resource allocation were legal questions for not the courts but rather the executive and legislative branches of government, thus upholding the principle of separation of powers. However, the Committee recognised the different approaches in different legal systems and stressed that almost every right articulated in the ICESCR has a justiciable aspect in most jurisdictions. It argued that such a distinction could not be justified by either the inherent nature of ESC rights or legitimacy arguments, such as the separation of powers or concerns about the capacity of the judiciary to adjudicate on these rights.Footnote 64 Furthermore, CP rights may also demand considerable resources for their implementation, notably in organising elections (Art. 2(3) and 14 ICCPR) or offering free legal assistance to guarantee the right to a fair trial (Art. 25 ICCPR).
The prevailing view that resource allocation issues should fall exclusively within the purview of political, rather than judicial, entities overlooks the reality that courts routinely handle matters influencing resources.Footnote 65 Instituting a rigid classification systematically excluding ESC rights from judicial scrutiny would not only be arbitrary but also contradict the principle of the indivisibility and interdependence of all human rights.Footnote 66 Such an exclusionary approach could significantly impair the judiciary’s capacity to safeguard the rights of society’s most vulnerable and marginalised.Footnote 67 On that matter, the International Commission of Jurists outlined, ‘It is not the “nature” of the rights involved that determine the complexity’ and that courts are ‘not designing policies … on the basis of their own initiative, but … decide cases on the basis of existing rules’.Footnote 68
2.3.4 Negative v. Positive State Obligations
Erroneous assumptions about the human rights dichotomy have also fostered an overly simplistic view of state obligations. Obligations under CP rights have often been characterised as primarily negative, requiring states to refrain from interference, whereas ESC rights are commonly portrayed as positive obligations demanding active state intervention. This distinction crystallised following the adoption of distinct implementation clauses in the respective Covenants (Art. 2 ICESCR and Art. 2 ICCPR). As such, CP rights were perceived as cost neutral, immediately applicable, inherently executable and well defined. In contrast, ESC rights were considered resource intensive, progressively realised and dependent on external execution mechanisms. However, this binary perspective has evolved due to the elaboration of the tripartite typology of state obligations in international human rights law. The obligations to respect and protect, along with the non-discrimination principle, are inherently justiciable. Conversely, the duty to fulfil is often interpreted as guidance for legislative and executive actions. However, certain aspects of this obligation are sufficiently concrete to warrant judicial or quasi-judicial scrutiny,Footnote 69 including the minimum core obligations (see Section 5.2.1.3c), obligations in contexts where the state exerts full control over individuals and the prohibition against retrogression.Footnote 70
It is now broadly recognised that CP rights may encompass positive obligations, while ESC rights can also include negative ones.Footnote 71 Such advancement in understanding refutes the conventional binary model and illustrates that the discourse on negative versus positive obligations is outdated. This evolution acknowledges the inherent interconnectedness and equal significance of all human rights categories, underscoring the necessity for an integrated approach to their enforcement and interpretation. With these misconceptions addressed, the focus now turns to a central question: What is the current state of justiciability of ESC rights?
2.4 The Contemporary Landscape of Justiciability
The preceding discussion has demonstrated that the Committee has, over time, firmly affirmed the justiciability of the Covenant’s provisions. This position is reflected not only in its General Comments but also in its Statements and Concluding Observations. Building on this foundation, this section turns to the practical dimensions of justiciability and its place within the broader framework of human rights implementation. To advance the discussion, justiciability is examined here through a dual lens – its formal and material dimensions – providing a more nuanced and operational framework for understanding how rights under the Covenant may be invoked and realised in practice. By disaggregating justiciability in this way, the analysis clarifies its doctrinal structure and offers a framework that may help bridge persistent gaps in both scholarship and implementation.
2.4.1 Formal Justiciability: Mechanisms for Adjudication
Formal justiciability refers to the existence of mechanisms through which rights can be adjudicated. It addresses whether a legal framework or mechanism is in place that allows for the adjudication of rights. This aspect of justiciability is foundational: it pertains to the very possibility of bringing a right before a judicial or quasi-judicial body. The altruistic nature of human rights treaties underlines the importance of having an independent review mechanism to oversee their implementation. The necessity for such oversight is heightened by the characteristic lack of reciprocity in human rights obligations. Unlike many other areas of international law, where reciprocal rights and obligations are the norm, human rights obligations are primarily unidirectional, emphasising the obligations of states towards rights holders. This unique feature of human rights reinforces the essential role of mechanisms capable of impartially assessing and enforcing these rights.Footnote 72
Over the years, the Committee has emphasised that, despite the absence of a direct counterpart to Art. 2(3) ICCPR, which enshrines the right to an effective remedy, ESC rights are also justiciable. The Committee’s interpretation of Art. 2(1) ICESCR in 1990 noted that the obligation to progressively realise the rights enshrined in the Covenant through all appropriate means transcends mere legislative action. This interpretation encompasses the provision of judicial or other efficacious remedies for rights deemed justiciable. In this vein, the Committee has observed that the effective remedy of non-discriminatory access to recognised rights is often best achieved through judicial or other remedial mechanisms.Footnote 73 Furthermore, the availability of remedies is also reinforced in Art. 8 UDHR, which declares that everyone has the right to an effective remedy by competent national tribunals for acts violating the rights granted to them by the constitution or by law.Footnote 74 Additionally, Principle 22 of the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights articulates, ‘Any person or group who is a victim of a violation of an economic, social or cultural right should have access to effective judicial or other appropriate remedies at both national and international levels’.Footnote 75 This underlines the formal justiciability of ESC rights and the necessity for rights holders to have the ability to seek and obtain remedies through adjudicative bodies at the local, regional and international levels.Footnote 76
Today, the formal justiciability of ESC rights at the international level is firmly established, supported by the existence of various adjudicative and quasi-adjudicative mechanisms. This section offers a concise overview of the three most relevant mechanisms for the justiciability of the right to science: the individual communications procedure before the CESCR, the mechanisms of the Human Rights Council and relevant procedures within UNESCO.
2.4.1.1 Individual Communications to the United Nations Committee for Economic, Social and Cultural Rights
Initially, the monitoring of ESC rights was entrusted to the Economic and Social Council (ECOSOC), the United Nations’ principal intergovernmental body for these domains. After the ECOSOC had neglected the supervisory mandate of the ICESCR for a decade, the Council created the CESCR, modelled on other established human rights committees.Footnote 77 The CESCR comprises independent individual experts, distinguishing it from charter-based bodies potentially influenced by political considerations.
Initially, the CESCR’s tools were confined to the state reporting procedure (Art. 16 and 17 ICESCR). While this mechanism, far from trivial, is significant in the development of treaty norms and the promotion of implementation, it is primarily geared towards a dialogue and periodic review of all states, which is indeed vital. However, this format limited the Committee’s capacity to address individual dimensions of the rights enshrined in the Covenant. Recognising these limitations, the CESCR formally advocated for the establishment of an individual complaints procedure, ultimately leading to the adoption of the Optional Protocol to the ICESCR.
The Human Rights Council adopted the OP-ICESCR in 2008, enabling individuals to bring violations of ESC rights – after the exhaustion of domestic remedies – before the Committee for adjudication.Footnote 78 On 10 December 2008, the sixtieth anniversary of the UDHR, the UNGA unanimously adopted the OP-ICESCR.Footnote 79 This adoption, albeit delayed, symbolically rectified a long-standing disparity in the global protection of CP v. ESC rights. The OP-ICESCR entered into force in 2013 after its tenth ratification.Footnote 80 To date, only forty-six nations have signed – and only thirty-one have ratified or acceded – the OP-ICESCR.Footnote 81
Based on Art. 2 OP-ICESCR, individuals and groups can submit individual communications before the CESCR, claiming a violation of any of the Covenant rights:
Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party.Footnote 82
Under the OP-ICESCR, three types of communications can be submitted: individual or group complaints (Art. 2–9 OP-ICESCR), inter-state communications (Art. 10 OP-ICESCR) and inquiry procedures (Art. 11–12 OP-ICESCR).Footnote 83 It follows that all Covenant rights are justiciable.Footnote 84
The OP-ICESCR uniquely requires complainants to demonstrate clear disadvantage (Art. 4 OP‑ICESCR), a criterion not found in other human rights protocols.Footnote 85 However, the decision to declare cases inadmissible due to the lack of a clear disadvantage remains at the Committee’s discretion. This makes it a choice rather than a requirement.Footnote 86 Art. 4 OP-ICESCR is consequently not listed among the mandatory criteria for admissibility that the Committee evaluates before examining the substance of a case. Additionally, this provision allows for cases to be admitted if the communication highlights a significant matter of general concern, regardless of whether the individual submitting it has experienced a clear disadvantage.Footnote 87 In the wider context of universal human rights instruments with communication procedures, the introduction of disadvantage as a criterion for inadmissibility may not have been indispensable. Pre-existing criteria, such as communications being ‘manifestly ill-founded’, ‘insufficiently substantiated’ or constituting an ‘abuse of the right to submit a communication’, already afforded the Committee considerable leeway to dismiss cases lacking substantive merit.Footnote 88
The application of the concept ‘disadvantage’ is somewhat contentious. By a grammatical interpretation, it implies a need for a comparative analysis between the complainant and others, typically relevant in cases involving equality or non-discrimination, but in the context of Art. 4 OP‑ICESCR is intended as a measure of grievance or harm rather than a comparison with others.Footnote 89 Lastly, Art. 4 OP-ICESCR should not overburden the plaintiffs, who must already prove a Covenant violation and its impact.
In 2019, the first communication invoking the right to science was submitted under the individual complaints procedure. The communication alleged multiple violations of rights protected by the ICESCR, including those linked to the right to science. However, the Committee declared the claims related to the right to science inadmissible on the grounds that the authors had failed to sufficiently substantiate the alleged violations (see Section 2.5). Consequently, the Committee has not yet issued an opinion interpreting or applying the right to science.
2.4.1.2 Human Rights Council Complaints Procedure
The Human Rights Council’s complaints procedure is specifically designed ‘to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances’.Footnote 90 It does not apply to individual complaints unless they demonstrate a consistent pattern of well-documented human rights violations. This procedure is confidential, and the submission of complaints should be kept private. While the complainant may be informed that their complaint has been accepted for consideration, the action taken and the outcome remain confidential, unless the Human Rights Council decides to make an exception and discuss the complaint publicly.Footnote 91 However, the secretive nature of this process and the limited scope for corrective action make this procedure weak. To date, no complaint on the right to science has been submitted under this procedure.
2.4.1.3 UNESCO Procedure for the Protection of Human Rights (No. 104)
Within UNESCO, communications can be submitted under the UNESCO Procedure for the Protection of Human Rights (No. 104)Footnote 92 – after the exhaustion of domestic remedies – when a human right within the organisation’s field of competence is violated.Footnote 93 Communications are considered by the UNESCO Committee on Conventions and Recommendations.
The human rights violations must be massive, systematic or flagrant, resulting either from a de jure or de facto policy of a state contrary to human rights or from an accumulation of individual cases forming a consistent pattern.Footnote 94 UNESCO Procedure 104 is not a judicial procedure as such, although it is largely similar to other UN complaints mechanisms. The aim of the Committee is to find a solution in co-operation with the concerned state:
Since the Committee is not in any way an international tribunal, it endeavours to resolve the problem in a spirit of international cooperation, dialogue, conciliation and mutual understanding. Out of a concern for efficiency in the search for a friendly solution, the Committee works in the strictest confidentiality, which is vital to the success of its action.Footnote 95
From 1978–2023, the UNESCO Committee examined 618 communications, none of which address the right to science.Footnote 96 However, given the confidential nature of the procedure and the fact that UNESCO is ‘basing its efforts on moral considerations and its specific competence, should act in a spirit of international co-operation, conciliation and mutual understanding; and recalling that UNESCO should not play the role of an international judicial body’,Footnote 97 one should question the effectiveness of such a procedure.Footnote 98
2.4.2 Material Justiciability: The Normative Content of Human Rights Norms
Material justiciability, which goes beyond the mere existence of an adjudicatory mechanism, concerns the capacity of a right to be meaningfully assessed and applied by such a mechanism. In other words, it addresses whether the content of a right is sufficiently defined to allow for its judicial or quasi-judicial review. For a right to be considered materially justiciable, its normative content must be clear and legally coherent – allowing adjudicators to interpret and apply it within a legal framework. This level of clarity ensures that the right is not only formally recognised but also capable of producing legal consequences in practice.Footnote 99 The Limburg Principles specify, ‘Although the full realisation of the rights recognised in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately while other rights can become justiciable over time’.Footnote 100 This very much addresses the issue of material justiciability.
Today, the material justiciability of human rights, particularly those that have been overlooked and underutilised such as the right to science, can continue to present a challenge. Material justiciability depends on a comprehensive understanding of the normative content of these rights essential for effectively adjudicating legal disputes. At the heart of this issue is the critique related to the indeterminacy or vagueness often attributed to ESC rights. This critique suggests that ESC rights typically lack the necessary precision and clarity, a point that should not be conflated with the self-executing nature of a norm, which concerns the domestic enactment of an international norm (see Section 2.3.2). However, this challenge of specificity is not exclusive to ESC rights but applies to CP rights as well.Footnote 101 Rights that possess a well-established normative content often have roots in long-standing constitutional law traditions, which then inform their incorporation into human rights covenants. A prime example is freedom of science (Art. 15(3) ICESCR, see Section 5.4.3). Such a depth of understanding, propelled by its constitutional lineage, contrasts with the relatively less developed normative content of the broader right to science, particularly the right to benefit from scientific progress and its applications (Art. 15(1)(b) ICESCR).
Historically, the critique of the lack of material justiciability was more justified when international human rights were in their infancy, given the absence of guiding inputs from Committee pronouncements, state reports or scholarly commentaries.Footnote 102 Human rights are purposefully articulated in broad terms to facilitate dynamic interpretation, a principle that remains essential, so their specificity thus unfolds via adjudication at either domestic, regional or international levels or through interpretations offered by international bodies, such as Concluding Observations to State reports, Views and General CommentsFootnote 103 or legal scholarship.
The perceived vagueness of a human right’s normative content is thus not an inherent flaw rendering it non-justiciable. Instead, it often stems from a lack of focused examination.Footnote 104 The precision of a right, not a precondition for its justiciability, develops through the process of legal interpretation and application.Footnote 105 Nonetheless, a certain degree of clarity is indispensable to break the otherwise vicious circle of non-implementation.
Rights holders require a clear comprehension of their rights to effectively assert them before competent authorities. Equally, duty bearers need a comprehensive understanding of their obligations to comply with them. Additionally, monitoring bodies, which are tasked with reviewing the implementation of human rights standards and holding non-compliant parties accountable, rely heavily on sufficient understanding regarding the normative content of human rights. Such clarity is crucial to ensuring that everyone involved in the human rights system, from individuals whose rights are at stake to those charged with upholding these rights, can perform their roles effectively. This prompts the question: How does this impact the material justiciability of the right to science?
2.5 The Road Ahead: Filling the Gap of Justiciability for the Right to Science
Since the adoption of the OP-ICESCR, formal justiciability has been established. However, the development of material justiciability depends on adjudication and interpretation. As it pertains to defining the normative content of the right to science through adjudication, as of early 2024, there has been only one complaint submitted to the Committee:Footnote 106 Communication No. 22/2017, addressing access to pre-implantation genetic diagnosis for embryos intended for in vitro fertilisation (IVF). While the Committee had the opportunity to address claims related to the right to science, it ultimately did not do so. The decision was based on procedural grounds. The claimants did not sufficiently substantiate their claim.Footnote 107 As such, this case provides no understanding of the normative content of the right to science and underscores that, while cases can resolve individual complaints, they may not always contribute to the development of a broader understanding of human rights. The nature of complaints – sporadic and dependent on submission – restricts the Committee to addressing solely those issues it receives, when they are presented.
In 2020, the Committee adopted the eagerly awaited General Comment No. 25 on Science and Economic, Social and Cultural Rights, addressing Art. 15(1)(b), (2)–(4) ICESCR.Footnote 108 This publication represents a substantial advancement in the material justiciability of the right to science and constitutes a pivotal step towards breaking the persistent cycle of non-implementation and enriching the understanding of the right to science’s material justiciability. Despite marking significant progress, however, it does not fully resolve the complexities associated with this issue.
While the General Comment offers an authoritative interpretation of the content and scope of a human rights provision for legislation, policy and practice,Footnote 109 it falls short of providing a comprehensive and detailed understanding of the right to science. This limitation can be attributed to several factors, including the Committee’s restricted time and institutional capacity, the inherent conciseness of General Comments, limited awareness of the Committee’s interpretative practice and the absence of broad consensus among states. As a result, a more in-depth conceptual and legal analysis of the normative content of the right to science is essential. Such analysis can empower rights holders to invoke the right before competent judicial or quasi-judicial bodies and provide states, international organisations and other actors with clearer guidance for implementing the right through legislation, jurisprudence and policymaking. Accordingly, the objective of this research – and of the chapters that follow – is to advance the understanding of material justiciability, thereby reinforcing the practical relevance of formal justiciability.
Open access