2024 Articles

Revising the ICESCR’s individual complaint mechanism: the transformative potential of a right to a “dignified minimum existence” for the CESCR’s standards of review.

Roy, Clémence

Drawing from an analysis of Germany’s Federal Constitutional Court’s (FCC), the South African Constitutional Court’s (SACC), and the Inter-American Court of Human Rights’ (IACtHR) jurisprudence, this paper will assess whether their respective methods of adjudication of the right to a dignified minimum existence provide promising alternatives to the CESCR’s current standards of review (the ‘minimum core’ approach and the ‘reasonableness test.’) More precisely, this paper will weigh on the following interrogation: how might the adoption of the right to a dignified minimum existence advance the CESCR’s standards of review for individual complaints?
This essay will first analyze how the non-quantifiable and abstract character of this right could offer the CESCR the possibility to circumvent the practical requirements imposed by a ‘minimum core’ approach (I); before delving into the right’s potential to re-model the ‘reasonableness test’ to help inform the CESCR’s adjudicative methodology when assessing individual complaints indicative of highly precarious circumstances (II).