Would the OP-CEDAW create a window to litigate economic, social and cultural rights?: The justiciability of rights enumerated in the CEDAW Convention

Concern: Many of the obligations of States Parties to the CEDAW Convention, mainly the economic, social and cultural rights, cannot be determined by an external body. A large number of these obligations are programmatic in nature and there is no meaningful way of assessing whether a State has violated or failed to fulfill these obligations.

Response:
This concern is known generally as the justiciability issue that has roots in the larger discussion of the nature of economic, social and cultural rights protected under the ICESCR. The issue of justiciability is in specific reference to what are sometimes superficially understood as the uniquely noncommittal and vague State obligation provisions of Article 2(1) of the ICESCR. Yet in reality, such rights have been subject to extensive interpretive and jurisprudential analysis during the past decade, yielding sufficient clarity to make them amenable to external scrutiny. Further, with respect to the similar economic, social and cultural rights protected by the CEDAW Convention and its protocol, these rights have their own specific grounds for justiciability. All rights in the CEDAW Convention are potentially justiciable since justiciability must be determined in reference to a specific set of facts related to a particular right. The CEDAW Committee will determine in the context of the cases that come before it, whether the claim is one suitable for “judicial” resolution.

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