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

234 | PRACTITIONERS GUIDE No. 6a recently agreed Optional Protocol to the ICESCR, which allowsfor individual complaints to the Committee on Economic,Social and Cultural Rights, will, when entered into force, providea universal international mechanism for adjudication onESC Rights (see, Annex 2).a) Means of judicial enforcementA number of national courts, as well as international bodies and expertshave developed jurisprudence which may clarify the content and definestandards facilitating the legal enforcement of ESC rights. Principlesdeveloped in this jurisprudence include the following:• The question as to whether a State has discriminated againstcertain individuals and groups, has failed to respect and protectESC rights or has taken retrogressive measures in relation to therights (see, above, Section 3) are subject to adjudication by nationalcourts as immediate and/or negative obligations. 924• Even for aspects of rights that are subject to progressive realisation,courts can judicially review compliance with them based onprinciples of reasonableness, proportionality and necessity. 925• A number of national legal systems will judicially enforce ESC rightswithin the scope of the “minimum core content”. 926 “Minimumcore” refers to the absolute minimum essential level of each rightwithout which the right would be meaningless. 927 The CESCR hasestablished that “a State Party in which any significant number of924 See, for example, Belgian Court of Arbitration, Case No. 5/2004, January 14, 2004 and PortugalConstitutional Tribunal, Decision No. 39/84, April 11, 1984.925 See, Article 4 ICESCR, and CESCR, Statement: An Evaluation of the Obligation to TakeSteps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant,UN Doc. E/C.12/2007/1, 10 May 2007, para. 8. See also, ICJ, Courts and Legal Enforcementof Economic, Social and Cultural Rights, op. cit., fn. 29, at pp. 33–36.926 See, German Federal Constitutional Court (BVerfG) and German Federal AdministrativeCourt (BVerwG): BVerfGE 1,97 (104f); BVerwGE 1,159 (161); BVerwGE 25, 23 (27); BVerf-GE 40, 121 (133, 134); BVerfGE 45, 187 (229); BVerfGE 82, 60 (85) and BVerfGE 99,246 (259). Swiss Federal Court, V. v. Einwohnergemeinde X und Regierungsrat des KantonBern, BGE/ATF 121I 367, 27 October 1995. Brasilian Federal Supreme Court (Supremo TribunalFederal), RE 436996/SP (opinion written by Judge Calso de Mello), 26 October 2005.Argentine Supreme Court, Reynoso, Nida Noemi c/INSSJP s/amparo, 16 May 2006 (majorityvote agreeing with Attorney General’s brief). See, for more explication on this point, ICJ,Courts and Legal Enforcement of Economic, Social and Cultural Rights, op. cit., fn. 29.927 See, CESCR, General Comment No. 14, op. cit., fn. 37, para. 47 (on right to health). Seealso, Article 9, Maastricht Guidelines, op. cit., fn. 29. This notion of minimum core seems reflectedin the obligation “to respect the basic human rights of all migrant workers”, enshrinedin Article 1 of the Migrant Workers (Supplementary Provisions) Convention (C143), ILO,adopted on 24 June 1975. Despite the low ratification of this Convention, such an approachwould make applicable this provision also to State non-Parties.