Adjudicating Economic and Social Rights During Structural Crises – Progress Despite Retrogression?

Bringing a case before court is a conventional lever to enhance accountability for human rights. Yet, traditionally, legal accountability has been remarkably weak when it comes to positive obligations flowing from human rights. Based on an extensive review of case law – at international, regional and domestic level – focused on economic and social rights specifically during four recent structural crises, I have found that in these specific contexts of crises judicial bodies make, perhaps counterintuitively, strides in closing this accountability gap in relation to positive obligations. This is so in particular in situations where the State pulls back on budgetary allocations for basic goods and services, thus leading to the deterioration or reduction in the enjoyment of positive rights (retrogression). This enhanced judicial scrutiny in contexts of retrogression on human rights carries significant potential to break the judicial reluctance and deference when it comes to adjudicating States’ positive obligations, including the fundamental principle of progressive realisation. The case law shows that judicial scrutiny appears to be more rigorous when retrogressive measures threaten people’s enjoyment of their rights – which is particularly prevalent in crisis contexts. In such cases, the bulk of judgments undertakes a robust review of the contested measure and also takes into account social equity considerations. This shift in judicial attitudes towards positive obligations in circumstances of crisis holds potential to drive accountability for positive obligations arising from human rights.