Over the last few decades, scholars and activists have attacked the conceptual division of human rights into justiciable civil and political rights on the one hand, and largely non-justiciable economic, social and cultural rights on the other. Academics and practitioners have defended the extension of supranational judicial oversight to individual instances of economic and social rights abuse, on the premise that international litigation of these rights would promote their recognition in practice. This article questions the presumed benefits of supranational litigation in the promotion of economic and social rights. Focusing on the Inter- American system for human rights protection, we argue that litigation of economic and social rights, if not practiced in a manner respectful of certain non-legal, contextual factors, may be counterproductive. These factors include the limited resources of the system and the very nature of the oversight bodies themsekes? whose legitimacy depends upon the states recognition of their authority. Notwithstanding these limitations, however, we contend that when undertaken thoughtfully and with restraint, as one element in an integrated strategy toward achieving meaningful social change, supranational litigation can play an important role in promoting distributive justice in the Americas. To be effective, and to avoid the dangers of overreaching, legal approaches should remain on firm doctrinal terrain, and supranational litigation must be tied to broader advocacy strategies, closely coordinated with social movements, media engagement and other forms of pressure.
James L. Cavallaro and Emily J. Schaffer,
Less as More: Rethinking Supernational Litigation of Economic and Social Rights in the Americas,
56 Hastings L.J. 217
Available at: https://repository.uchastings.edu/hastings_law_journal/vol56/iss2/1