Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 233
of scientific research and creative activity (Article 15.3) ICESCR). The
CESCR clearly rejected any inference that these elements of rights and
obligations might be non-self-executing. 920 The list is illustrative and
non-exhaustive. 921 Furthermore, it must be recalled that, even in the
case of obligations subject to progressive realisation, national courts
can review compliance with ESC rights based on principles of reasonableness,
proportionality and necessity.
Box 14. ESC Rights in regional courts
ESC rights are adjudicated by a number of international courts
and tribunals. The Inter-American Court of Human Rights and
the African Commission supervise and rule on the implementation
of the ESC rights included in their main instruments. 922
The European Court has a more limited role due to the scarce
presence of the ESC rights in the European Convention, but
it includes protection for some rights also protected as ESC
rights including the right to education (Article 2 of Protocol 1)
and other ECHR rights allow it to adjudicate on some aspects
of ESC rights, including the right to respect for private and
family life and to respect for the home (Article 8 ECHR) and
the right to property (Article 1 Protocol 1). The European
Court can also find violations of ESC rights under the general
prohibition of discrimination set out in Article 1 of Protocol 12
ECHR (for those States Parties that have ratified the Protocol),
which prohibits discrimination in regard to “any right set forth
by law”. 923 The European Committee of Social Rights can receive
collective complaints, and, despite the restrictive scope
of the European Social Charter, its jurisprudence is opening
up to adjudicating on at least a minimum common core of
ESC rights for all migrants, regardless of their status. Finally,
920 Ibid., para. 5.
921 See, CESCR, General Comment No. 9, op. cit., fn. 914, para. 10.
922 See, SERAC and the CESR v. Nigeria, ACommHPR, op. cit., fn. 29, para. 68. In Socio-Economic
Rights Accountability Project (SERAP) v. Nigeria, ACommHPR, Communication
No. 300/2005, 5 th Extraordinary Session, 21–29 July 2008, para. 65, the Court said that the
“African Charter [...] constitutes a normative base for socio-economic rights claims which
allow any claim brought under the Charter to be litigated before national courts.”
923 In particular, the Explanatory Report to Protocol 12 to the Convention for the Protection
of Human Rights and Fundamental Freedoms, ETS No. 177, clarifies that the prohibition
of discrimination refers to “the enjoyment of any right specifically granted to an individual
under national law; [.. .] the enjoyment of a right which may be inferred from a clear obligation
of a public authority under national law, that is, where a public authority is under an
obligation under national law to behave in a particular manner; [unjustified discrimination]
by a public authority in the exercise of discretionary power (for example, granting certain
subsidies); [or] by any other act or omission by a public authority (for example, the behaviour
of law enforcement officers when controlling a riot).”