The fundamental rights laid down in the Convention can generally be classified as civil and political rights and liberties. These oblige the States to abstain from undue interference with the Convention rights and freedoms and therefore are called ‘negative obligations’. At the same time, the Court has recognised that States have so-called ‘positive’ obligations to provide effective protection of the Convention rights. The Court’s recognition and development of positive obligations has significantly contributed to the overall strength and scope of the protection offered by the Convention. This chapter focuses on the ways in which the Court generally defines positive obligations, i.e. applying the fair balance test, the reasonable knowledge and means test, an effectiveness-based test, and a test based on the Court’s own precedents. The Chapter further discusses different types of positive obligations - in particular substantive, preventive and procedural positive obligations - and the relation between positive and negative obligations. In addition, the incorporation of social and economic rights in the Convention through positive obligations is addressed.

The 1994 Argentine constitutional reforms introduced a plethora of economic, social and cultural rights to the text of the constitution, along with innovative procedural devices for vindicating those rights. More than two decades later, we have a wealth of experience with judicial interpretation and enforcement of these rights, and civil society use of the rights to pursue complex policy goals. This chapter explores that experience and describes the ways in which certain rights – such as the right to health, housing and a healthy environment – have been enforced through judicial orders. It focuses especially on the various ways in which courts have addressed the difficult task of designing, implementing and monitoring solutions to alleged violations of rights, when those violations have complex social and economic roots and any solutions consequently require extensive and long-term state involvement.

It has often been suggested that the human rights politics of the late 1970s intended ‘not to open the gates of paradise, but to bolt the gates of hell’.1 This conception of human rights as protections against ‘the worst’ was bound up with a reassessment of revolutionary politics as, at best, hubristic folly, and, at worst, totalitarian. As Soviet dissidents embraced the language of human rights to campaign against the Soviet state, a new NGO-led human rights politics came to express a realist rejection of revolutionary utopias.2 This human rights politics renounced the revolutionary aspirations of the communist left, while marginalising even the social-democratic ideals that had informed the Universal Declaration of Human Rights’ social and economic rights. Epitomising this divorce of human rights from more expansive visions of social and economic justice, Michael Ignatieff suggested in 2001 that the ‘elemental priority of all human rights activism’ should be to mitigate suffering by preventing torture, beatings, killings, rape and assault. Ignatieff argued for prioritising the civil and political rights of a ‘capitalist rights tradition’ against what he framed as a ‘Communist rights tradition – which put primacy on economic and social rights’.

This chapter critically evaluates the impact of the Indian Supreme Court's interim orders in the Right to Food case, a Writ Petition seeking better implementation of the Midday Meal Program (the largest school nutritional program in the world). We cite significant and varied empirical and social science evidence demonstrating that the Program expanded significantly – from a quantitative as well as a qualitative standpoint – in the years immediately following the Court's orders. The harder question is whether the expansion in the Program was "caused" by the Court's intervention, or was largely the consequence of changed political circumstances. We argue that while the supportive political environment was undoubtedly a significant factor, the evidence available seems to indicate that the Court played an important role too. These orders helped in improving the scheme in certain specific respects, in bringing sustained media attention to the issue, in entrenching the Program against subsequent shifts in political priorities, and in providing a platform for the broader social movement to coalesce around. The experience suggests that there is room for "qualified hope" as to the ability of courts to help realize socio-economic rights, albeit in certain limited situations and in partnership with other actors.

This chapter critically evaluates the impact of the Indian Supreme Court's interim orders in the Right to Food case, a Writ Petition seeking better implementation of the Midday Meal Program (the largest school nutritional program in the world). We cite significant and varied empirical and social science evidence demonstrating that the Program expanded significantly – from a quantitative as well as a qualitative standpoint – in the years immediately following the Court's orders. The harder question is whether the expansion in the Program was "caused" by the Court's intervention, or was largely the consequence of changed political circumstances. We argue that while the supportive political environment was undoubtedly a significant factor, the evidence available seems to indicate that the Court played an important role too. These orders helped in improving the scheme in certain specific respects, in bringing sustained media attention to the issue, in entrenching the Program against subsequent shifts in political priorities, and in providing a platform for the broader social movement to coalesce around. The experience suggests that there is room for "qualified hope" as to the ability of courts to help realize socio-economic rights, albeit in certain limited situations and in partnership with other actors.