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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 231integrity.” 904 The Committee failed to apply this approach to the right tosocial protection/benefits under Article 23 of the ESC(r), 905 to the rightto adequate housing (Article 31.1 ESC(r)), even for unaccompanied minors 906 or the right to protection against poverty and social exclusion(Article 30 ESC(r)), 907 but it found that the right to immediate shelter“is closely connected to the right to life and is crucial for the respect ofevery person’s human dignity” 908 and is therefore applicable to undocumentedmigrants. 909 The Committee has also considered of fundamentalimportance the obligation to “provide protection and special aid fromthe State for children and young persons temporarily or definitively deprivedof their family’s support”. 910 The right to health (Article 11 ESC(r)),the right to social and medical assistance (Aritcle 13 ESC(r)) have beenequally considered applicable to undocumented foreign minors. 911 TheCommittee has also held that “the part of Article 16 relating to the rightof families to decent housing and particularly the right not to be deprivedof shelter applies to foreign families unlawfully present in the country”. 9125. Remedies for violations of ESC RightsAlthough the extent to which ESC rights are justiciable 913 has beencontroversial, arguments that ESC rights cannot be adjudicated on bycourts, or that they are policy objectives rather than rights, have beenauthoritatively dismissed, and ESC rights are regularly adjudicated onby national courts. International judicial or quasi-judicial bodies alsoadjudicate on a comprehensive catalogue of ESC rights, as describedfurther in Annex II.The way in which ESC rights can be claimed in courts and the remediesavailable will vary according to the legal system and the domestic904 Defence for Children International (DCI) v. Belgium, ECSR, Complaint No. 69/2011, Merits,23 October 2012, para. 33.905 International Federation of Human Rights Leagues (FIDH) v. Ireland, ECSR, ComplaintNo. 42/2007, Merits, 3 June 2008, para. 18.906 Defence for Children International (DCI) v. the Netherlands, ECSR, Complaint No. 47/2008,Merits, 20 October 2009, paras. 44–45.907 DCI v. Belgium, ECSR, op. cit., fn. 904, paras. 143–147.908 Ibid., para. 47.909 Ibid., paras. 46–48.910 Article 17(1)(c) ESC(r). See, DCI v. the Netherlands, ECSR, op. cit., fn. 906, para. 66; DCIv. Belgium, ECSR, op. cit., fn. 904, para. 39.911 DCI v. Belgium, ECSR, op. cit., fn. 904, paras. 102, 119–122.912 DCI v. Belgium, ECSR, op. cit., fn. 904, para. 136.913 “Justiciability” “refers to the ability to claim a remedy before an independent and impartialbody when a violation of a right has occurred or is likely to occur, [and it] implies access tomechanisms that guarantee recognised rights”: ICJ, Courts and Legal Enforcement of Economic,Social and Cultural Rights, op. cit., fn. 29, p. 6. The case Purohit and Moore v. The Gambia,ACommHPR, Communication No. 241/2001 (2003), 33 rd Ordinary Session, 15–29 May 2003,paras. 78–85, constitutes a good example, and not the only, of justiciability of ESC rights.