In Argentina, a local group instituted a case involving the right to health against the government. The remedy requested was to ensure that the state should manufacture a vaccine against Argentine hemorrhagic fever, which was threatening the lives of 3-5 million who live in the endemic area. The state was unable to carry out a massive vaccination campaign due to lack of an adequate quantity of the vaccine. Commercial laboratories could not produce it either for it was not profitable. In 1998, the court of appeals ruled favorably establishing the state’s obligation to manufacture the vaccine. The court also set a legally binding deadline for the obligation to be met. It had based its judgment on UDHR, and article 12 of the International Covenant on Economic, Social and Cultural Rights. These international instruments have been incorporated into domestic law of Argentina and are considered to form part of the Constitution.

The above case was presented for discussion in a national workshop jointly organized by APAP, Ministry of Justice and Civil Service Reform Program on January 25 and 26, 2001 with the objective of investigating the enforceability of human rights in the Ethiopian courts. While discussing the case, participants were required to investigate whether such type of a social right problem involving the right to health can similarly be brought to the Ethiopian courts, and if their response is, indeed, to the positive; to which particular court. In the proceedings, though there was no consensus, the majority of the participants had the opinion that the claim could be brought to the Ethiopian court as well, and, particularly, to the Federal First instance court.

In the past and still, there is a wide spread assumption that civil and political rights are justiciable while economic, social and cultural rights are not It is understood that civil and political rights are directly justiciable to which quite a number of people out rightly agree. These rights include the right to life, the right to liberty, the right of the accused, the right of privacy etc. We may, however, mention some rights that could not go to courts even if they fall under the category of civil and political rights. For instance, as per the Federal Constitution, only the Federation Council resolves issues involving the right of self-determination, which is, of course, significantly a political right. Issues involving election, which is a political right, also go to the Electoral Board as per the Electoral Law enacted for the purpose.

Concerning Economic, social and cultural rights, however, many tend to categorize them as non-justiciable rights due to their very nature. Their argument is that these rights are programmatic the practical realization of which depends entirely upon the available resources of the country in question. As a result, it would be very difficult for courts to enforce them, particularly, when the country is economically backward.

The controversy over the enforceability of economic, social and cultural rights is, indeed, something to be envisaged considering the present circumstances in Ethiopia. The obligation, for instance, to provide every citizen with a job, to improve health facilities, to build more schools etc, definitely require some positive action on the part of the state. As these positive actions obviously consume a considerable amount of government revenue, citizens would rather be discouraged, in a poor country like Ethiopia, to become assertive and demand for the realization of such rights. The state, on the other hand, would rather choose to take this opportunity to its advantage and remains inactive for unwarranted period of time though it may have the potential to carry out some positive actions with the available resources.

In some literatures, it is argued that justiciability of economic, social and cultural rights can be explained in light of whether or not the obligation of the state with regard to these rights is clearly determined. If the obligation of the state is clear, then the state is obliged to realize the rights to the maximum of possibilities with in the framework of the obligation. For instance, it is provided in the Constitution that every one has a right to a better standard of living. This right, however, doesn’t automatically oblige economically poor countries like Ethiopia to fulfill for the right naturally requires a certain amount of government revenue. The extent of this obligation of the state is further qualified in other Constitutional Provisions such as increasing, from time to time, the annual budget and the government correspondingly performing to its best aiming at realizing these needs. Hence, courts could critically investigate claims by individual victims or groups vis-à-vis the clearly defined obligations of the state and its available resources, and accordingly pass judgment.

In other instances, the obligation of the state may be confined to issuing legislations for the realization of particular rights. For instance, the F.D.R.E constitution mentions that the state would enact laws to end harmful traditions and customs to promote the human rights of women. In this particular case the obligation of the state includes enacting relevant legislations. This example could perhaps be an extreme case to examine the justiciability of rights. However, a court may still have the jurisdiction to do some action to realize this constitutional right of women in instances when the state remains inactive. In Nepal, for instance, where similar issue was at stake a human right group initiated a campaign to eliminate bonded labor. The group published a comprehensive report on the practice in Nepal. On the basis of the report, the it approached the Supreme Court seeking to have the court issue a directive to the government to enact a law prohibiting bonded labor. The court did so, and the government enacted a law prohibiting bonded labor. Based on the report on the implementation of the law, the group again sought the help of the Supreme Court, this time to ensure that the government implements the law effectively. However whether or not such type of case could be adjudicated in Ethiopian courts has never been tested, and, therefore, here we may only have to speculate the possibility.

One case in South Africa may demonstrate how a court could oblige a state to the extent of its obligation. Here, when the court was asked to adjudicate on the claims of ‘roofless’ people, it uphold their complaint that the government had not done enough, in legislative and other ways, to provide access to housing. The court didn’t, however, say that the government had to provide everyone with a house. One may also expect similar ruling by Ethiopian courts for identical claims. For instance, the right to work is an economic right the government is obliged to fulfill. With unemployment as high as in Ethiopia, a court may not oblige the government to provide every unemployed with a job. However, the government's effort in designing policies and laws aimed at minimizing the number of the unemployed rank might be questioned by a court of law.

Many of the participants of the workshop mentioned earlied were rather arguing in favor of justiciablity of human rights before the Ethiopian court concerning case as brought in Argentina. Still, quite many were also having the opinion that every social, economic and cultural right is justiciable (though these rights are programmatic). Participants do seem to move in the right track when they argued that these are rights the extent of their enjoyment could only be determined by the courts deliberating on the issue, and the outcome depending on the nature of individual cases brought before them.

APAP is particularly interested on the issue of justiciability and enforceability of economic, social and cultural rights for it would have a direct impact to some degree in the process of combating corruption. It believes that every corrupt practice infringe upon a particular human right. For instance, a government official, rejecting some one's employment application only to offer the vacancy for some other person in return for some kind of advantage, is violating the applicant's right to work or the principle of equality, which is an economic right. Similarly, a person denied access to health facilities due to corrupt practices has his right to health violated, which is a social right. Hence, if citizens, whose rights are violated due to corrupt practices, do get redress by bringing to justice those responsible, the conduct of government officials would improve drastically contributing, in the end, to the reduction of corrupt practices.

Indeed, the issue of whether or not Economic, Social and Cultural rights are justiciable has historically been one of the least clearly understood and most hotly debated issues. But nowadays this attitude has been changed not only in theory but also in fact as the cases mentioned above are demonstrating. The enforceability of human rights will depend primarily on the states’ domestic conduct. Only effective domestic protection can ensure the observance of internationally recognized rights. Domestic protection cannot be assured without the judiciary, which is the ultimate guarantor of rights.

To realize the enforcement of economic, social and cultural rights in Ethiopia, however, some measures have to be carried out by different actors. The major responsible body would be the government. Detailed legislations are prerequisites to effectively seek for remedies in the courts. For instance, the right to elect and be elected is comprehensively dealt with by the electoral laws determining procedures for the enjoyment of the right and the possible remedies and where to obtain them when a right is violated.

The enforceability of economic, social and cultural rights above all demands active, assertive and creative judiciary. As the examples demonstrated, it appears that the Ethiopian courts could also accommodate such claims with the available legal procedures and relevant laws.

Not least, creating active citizens capable of initiating cases and bringing them to courts is a fundamental task. The role of civil society institutions is particularly significant in raising the awareness level of the multitude and playing a proactive role in instituting cases on behalf of victims of human rights violations.