Economic, Social and Cultural Rights in Northern Ireland: Legitimate and Viable Justiciability Mechanisms for a Conflicted Democracy

Citation

Boyle K (2015) Economic, Social and Cultural Rights in Northern Ireland: Legitimate and Viable Justiciability Mechanisms for a Conflicted Democracy. In: Diver A & Miller J (eds.) Justiciability of Human Rights Law in Domestic Jurisdictions. Cham, Switzerland: Springer, pp. 173-195. https://doi.org/10.1007/978-3-319-24016-9_8

Abstract
This chapter proposes justiciability mechanisms for economic, social and cultural (ESC) rights in Northern Ireland. The mechanisms are classified as either underdeveloped or open to future implementation. The chapter examines the existing mechanisms already available in Northern Ireland or the United Kingdom (UK). These mechanisms tend to be underdeveloped, or, may have not yet been categorised as mechanisms relating to ESC justiciability as such (so where rights are adjudicated under the rubric of something else). The chapter then proposes mechanisms for potential implementation in the future in accordance with the particular jurisdictional framework and constitutional settlement in the UK. The mechanisms proposed are measured in terms of their legitimacy—i.e. if their applicability in law is according to, and in compliance with, the rule of law. In this sense, if the of the law renders the rights justiciable then the mechanisms are considered legitimate from a positivist perspective. Viability is also explored in terms of whether there are barriers or democratic gaps in the implementation of the mechanisms, such as for example, jurisdictional gaps, or weak rather than strong ESC protection/fulfillment as a result of procedural rather than substantive mechanisms. The introduction of justiciable mechanisms deepens the review of ESC rights beyond a categorisation according to standard of enforcement. This contributes to a more informed discussion on whether ESC justiciability mechanisms can assist in addressing the ESC rights deficit in Northern Ireland as a sub-state transitioning from a protracted conflict that is part of a wider State committed to international human rights norms. There is also a wider contribution to the discussion on ESC justiciability in itself—whereby the mechanisms can be developed and discussed beyond the Northern Ireland context. This assists in clarifying the wider UK position with the potential to unearth potential pitfalls in ESC protection across the UK. There is also the possibility to transfer, where appropriate, the mechanisms identified in this chapter to other jurisdictions beyond the UK context. This is of particular importance given the State’s reluctance in this case to acknowledge the legitimacy of ESC rights' justiciability at all. Lessons can be learned from this where other States make claim to similar arguments.