The defence of the economic and social human rights and the limits of judicial intervention

The issue of human rights implementation, especially that of economic and social human rights, has become one of the most controversial subjects in current legal and political philosophy. The establishment of the International Criminal Court revealed the special status of civil and political human rights as standing above national sovereignties. Economic and social rights, however, are far from reaching a similar position. In this paper I will discuss the traditional distinction between negative and positive rights, as well as the role of the state in general and that of the judiciary in particular in the protection of both kinds of rights; and I will show the correlations between both types of rights. Lastly, I will analyse in which way it is feasible that judges defend the validity and efficacy of social and economic rights when the other branches of government, the executive and the legislative, do not offer an effective implementation of them. This intervention of the judiciary is usually seen as an inappropriate interfering of judges in the democratic arena, without the backing of having been elected by the citizenry. I will try to answer to this objection.