Litigation on the Progressive Realisation of Economic, Social and Cultural Rights: Under What Conditions May It Be Strategic?

Koldo Casla, Senior Lecturer, University of Essex

Keywords: Economic, Social and Cultural Rights; International Law; Human Rights; Progressive Realisation; Strategic Litigation

Credit: Koldo Casla

Thanks to an SLSA International Collaboration Grant, over the course of 2025, I led a team of three academics (Juli Ponce, Marion Sandner and myself) and three human rights practitioners (María José Aldanas from FEANTSA, Irene Escorihuela from Observatori DESCA, and Rafael Cid from Gentium) to answer the following question: Under what conditions may it be strategic to push the boundaries of litigation in relation to the progressive realisation of economic, social and cultural rights (ESCR)?

In partnership with the University of Barcelona, we met in the Catalan capital city in September 2025 to discuss our preliminary findings, which I presented at another meeting with lawyers and civil society organisations in Madrid, also in September 2025. The team was supported by an advisory group of 11 academics and human rights lawyers from all over the world.

The final report was published on Human Rights Day, 10 December 2025, on the website of the Barcelona Chair of Housing Studies.

The report follows from the recognition that, particularly since the 1990s, there have been very stimulating examples of justiciability of ESCR in a variety of jurisdictions – South Africa, Colombia, Brazil, India, Portugal, Italy, Latvia, Germany, etc. – as well as from international human rights bodies at the United Nations and the regional systems in Africa, the Americas and Europe.

However, while a number of international and national judicial and quasi-judicial bodies have acknowledged progressive realisation in principle, most of the comparative case-law focuses on the obligation to respect, and to a lesser extent the principle of non-retrogression, rather than progressive realisation.

Examples of this include limiting the scope to international mechanisms (Finnish Society of Social Rights v Finland, European Committee of Social Rights, 2014), in relation to social security (Ben Djazia and Bellili v Spain, UN Committee on Economic, Social and Cultural Rights, 2017), on housing (Vera Rojas and Others v Chile, Inter-American Court of Human Rights, 2021), regarding health (Sindacato autonomo dei Pensionati v Italy, European Committee of Social Rights, 2023), and in relation to workers’ rights. By and large, national courts have shied away from requiring public authorities to take proactive measures to deliver the services necessary to ensure the satisfaction of ESCR.

The report contributes to the identification of the legal principles, arguments, jurisdictions and, in general, the conditions under which it may be fitting to explore and push the limits of judicial enforceability of the progressive realisation of ESCR in national, regional and international judicial and quasi-judicial bodies.

The report is based on a rigorous analysis of international and comparative law and practice, with examples from a wide range of jurisdictions, such as Brazil, Colombia, Spain, Germany, India, Nepal, Kenya and South Africa.

Key factors to consider

In the report we argue that at least the following eight criteria should be taken into account when pursuing litigation to advocate for the progressive realisation of ESCR.

At the risk of stating the obvious, the first condition for strategic litigation on the progressive realisation of ESCR is to establish the requirement of progressive realisation in law, either directly or via recognition of the principle from international human rights law. This means that the State or the public authority in question – in international and domestic settings – ought to be expected, as a matter of law, to advance progressively towards the full realisation of ESCR. This will be easier to establish in front of international human rights mechanisms in relation to countries that have accepted the relevant bodies’ jurisdiction, since the principle is contained in the treaties and the courts and committees have embraced it.

Secondly, while the realisation of ESCR may only be seen in full in a more or less distant future, taking deliberate, concrete and targeted actions towards the full realisation of ESCR is a minimum core obligation: an immediate obligation to act. In application of this principle, public authorities are expected to develop and implement deliverable and strategically minded plans. Litigation on ESCR could focus on whether such plans exist at the relevant policy level, whether the goals and actions are supplemented by the right indicators and benchmarks, and whether they are adequately targeted, specific, measurable and accountable. Besides the overall direction of progressive realisation, the plans should allocate resources in a way that ensures at least the minimum core content of the rights, without discrimination, prioritising the needs of the most vulnerable groups, and preventing retrogression in breach of international standards.

The third criterion is the level of concreteness of the positive obligation to realise ESCR progressively. In the case of progressive realisation, judges are likely to be inclined to grant a wider margin of appreciation to States and public authorities. Claimants and their lawyers would need to consider whether the progressive fulfilment of the right in question requires a sufficiently concrete, specific and unqualified measure for judges to feel compelled to hold the State to deliver accordingly. Minimum core obligations to act and not discriminate, an assessment of reasonableness of an implementation plan, and the passing of time may play a central role in this reflective exercise.

Fourthly, earmarking or budgetary pre-allocation may be an interesting tool to hold public authorities to account in relation to progressive realisation. Earmarking is a public management technique whereby a proportion of total public revenue is set aside and reserved for a specific social purpose. While earmarking is typically a fixed percentage, there is no reason why it could not be established in law as a percentage that grows over time to ensure the progressive realisation of rights.

A fifth relevant factor when considering expanding strategic litigation to progressive realisation is whether the claimant can build on judicial principles developed and widely accepted in the jurisdiction in question. The goal would be to try to persuade judges to apply the principles they are already familiar with to a scenario they may not have considered before, such as whether the progressive realisation is justiciable and, if so, whether public authorities’ omission amounts to a violation of this legal requirement. Various principles from comparative practice seem pertinent in this regard, such as: structural remedies (in Colombia and Brazil), reasonableness (in South Africa and the UN Committee on ESCR), meaningful engagement (in South Africa, Brazil and India), due diligence and good administration (in the Council of Europe, the European Union and its Member States, and Latin America) and the principle of equality and non-discrimination in various jurisdictions.

The sixth criterion is the timeframe in which steps to the “maximum of available resources” (in the language of Article 2(1) ICESCR) were taken or not taken. As appreciated by Young, waiting is ubiquitous in relation to ESCR; the assessment of public authorities’ compliance with their obligations to realise these rights progressively “requires both more developed metrics – of how long a delay is too long – and a more nuanced approach to time”, an approach that should be sensitive to rights-holders’ perspectives, with an appreciation of the impact that the passing of time has on them and their ability to see the rights realised in practice. Indicators and benchmarks become essential tools in the assessment of States’ compliance with social rights obligations over time.

In seventh place, in the case of domestic litigation, it is important to consider whether the State has accepted the jurisdiction of an international monitoring body, to which the case could be submitted after exhausting internal remedies.

And finally, civil society can play a key role as leaders and galvanisers of an associated campaign or as providers of information relevant for the case and/or its implementation.

What next?

In early 2026, we submitted the report to the Advisory Committee of the UN Human Rights Council for their inquiry into the achievement of social justice through the justiciability of ESCR.

The SLSA grant also provided the foundation for a BA/Leverhulme small grant involving academics from Essex and the University of Valencia to investigate the significance of the passing of time in strategic litigation on climate and social rights. This new project will run from May 2026 to January 2028.