Courting economic and social rights in Palestine : justiciability, enforceability and the role of the Supreme Constitutional Court

Abstract

An article in : Journal Sharia and Law, College of Law, U.A.E. University, no.77, January 2019In this paper, I will discuss whether Economic and Social Rights (ESRs) constitute fundamental rights in Palestine, as a result of their entrenchment in the constitutional text, the Basic Law of the Palestinian Authority; and if yes, which ones. In fact, while in International Human Rights Law (IHRL), ESRs are presented as a monolithic category of rights, they are not treated as such in national constitutions. Some rights are simply missing from the text; others are present but enjoy different status within the constitution – often depending on the way they are written in the constitutional text, and on the way they are applied by state institutions, in particular the courts. I will also discuss whether those fundamental ESRs, in particular those that appear to be legally binding as a result of their entrenchment in the constitutional text, are – and ought to be – justiciable. I will finally discuss the theoretical and practical objections to the role of a specialized Court in enforcing entrenched ESRs, through constitutional adjudication