ABSTRACT: Despite many domestic and regional jurisdictions ruling in favour of the justiciability of economic and social rights (ESR), many states and some commentators continue to put forward arguments denying the suitability of ESR for judicial enforcement. This essay will explain the importance of ESR, both alone and in unison with other human rights. It will then set out the main arguments against ESR justiciability – the nature of ESR, their alleged anti-democratic implications, and courts’ capacity in enforcing ESR – before highlighting the weaknesses in these arguments. Finally, the paper will consider how far ESR can advance socio-economic justice.
The Optional Protocol1 to the International Covenant for Economic, Social and Cultural Rights (ICESCR)2 entered into force on 5 May 2013.3 The Protocol will make it possible for citizens (of states’ party to it) to be able to bring economic and social rights (ESR) violations before an international committee. Yet, despite such important milestones in the advancement of the importance of ESR, many states and some commentators express reservations about these so-called ‘second generation’ rights. The reservations vary and are numerous, but generally centre around the misconception that ESR are not suitable for judicial enforcement. As the modern human rights regime is understood through a legal rights paradigm, the denial of ESR justiciability effectively means the denial of a vital recourse for those who suffer ESR violations. As these violations often affect the most vulnerable in a society, it is vital to examine the merits of the claims of those who wish to deny such rights. This paper puts forward the view that ESR are justiciable, i.e. they are rights that are enforceable by a court, and that the arguments against this do not hold up to any serious scrutiny. Keeping in mind that all human rights are interdependent, the importance of ESR must be recognised both in combination with civil and political rights (CPR) and other human rights, as well as on their own merits. There is a general presumption that CPR should be enforceable by the courts, but an equal presumption of the same justiciability is not made of ESR. This article, therefore, will argue that ESR fulfils many of the same criteria for justiciability as those of CPR.
When the argument is made that ESR are non-justiciable, comparisons with CPR are often made to validate this argument. CPR are universally deemed fully justiciable, and it is the alleged fundamental differences between CPR and ESR that are often used to illustrate the proposition that ESR are non-justiciable. This article will therefore compare the two sets of rights in order to illustrate that they share common ground as well as points of divergence. This article seeks to underline the importance of ESR by setting out and explaining the claims that oppose the importance of ESR and seeking to refute them. There are three main arguments that are advanced by those who oppose ESR: 1) the very nature of ESR makes them unsuitable for judicial enforcement, 2) ESR are anti-democratic in nature, in that they give too much power to judges and blur the separation of powers and 3) courts do not have the capacity to rule on issues associated with ESR. This article will conclude with a brief examination of how far socio-economic justice can be advanced through ESR, arguing that they are a useful tool in this struggle.
2. Human Rights as Legal Rights
For rights to carry meaning, they must be enforceable through the judicial process.4 Jack Donnelly writes that “rights empower, not just benefit, those who hold them.”5 This empowerment is especially true for ESR. The potential for human rights to be legally protected exists even when there is an on-the-ground absence of “domestic-type enforcement mechanisms”.6 The key question in the justiciability debate on socio-economic rights is whether ESR are rights as commonly understood. While this question has been answered in the affirmative in both the ICESCR and the International Covenant on Civil and Political Rights (ICCPR)7 and in several human rights documents since8 , there has been and still is much controversy9 on the nature of ESR since they were first introduced as legally binding rights in the ICESCR less than 50 years ago. Despite their controversial nature, Malcolm Langford claims that the sheer volume of jurisprudence and case-law means “that there is now just too much evidence to the contrary” to attempt to advance the argument that economic and social rights are not suitable for judicial protection.10 Various authoritative UN11 and regional12 bodies have argued for the justiciability of ESR. Nolan et al note that “the trend has been to pronounce that the debate is over”, and while the authors agree on the justiciability of ESR, they contend that the issue is still unresolved in the minds of several governments of influential states, including the United States and to some extent the United Kingdom.13 The opposition to ESR justiciability, and to the existence of ESR as ‘rights’ in general, comes from many quarters and is not just a simple argument about legal approaches. It is within this framework that the present ESR versus CPR debate is principally situated.
Some have in the past claimed that the very notion of ESR is potentially “dangerous”.14 An example of such an argument can be found in Cass Sunstein’s writings at the time when the post-communist Eastern European states were writing their new constitutions, many of which were to include ESR. He warned that many ESR, such as the right to housing, were so broad that they became meaningless and essentially worthless. Thus ESR were “unenforceable by courts”, and therefore ‘dangerous’, because by lumping them together with civil and political rights the enforceability of the latter was in turn threatened.15 Nierer argues that “Rights only have meaning if it is possible to enforce them” and that ESR rights are “unmanageable through the judicial process”.16
3. ESR as Rights of the Disenfranchised
Here Meron is alluding to the fact that by deeming ESR non-justiciable, and therefore not ‘rights’ as commonly understood, we are inadvertently claiming that the issues which ESR relate to are not important, or at least not important as CPR issues. CPR issues, such as free speech and the right vote are obliviously important, but acknowledging that ESR are ‘rights’ would elevate the universality of the issues they are concerned with – such as education, health, work, etc. CPR rights alone are not a panacea for all humanities woes. Brown notes that in “inegalitarian orders, rights differently empower different social groups” and while “rights offer something to all – ….the more social resources and the less social vulnerability one brings to the exercise of a right, the more power that exercise will reap”.18 For example, this is why even after the introduction of the International Bill of Human Rights19 , which should offer universal protection, there was still a need for many more conventions and treaties that dealt with women20 , children21 and minorities22 . This would appear to be a common thread throughout human rights discourse. The issue of access to rights mechanisms is often remarked upon by committees and in case-law. With this in mind, I see ESR – and the various treaties and domestic laws that seek to enforce it – as an attempt to grant greater accessibility to the disenfranchised. For example, in South Africa, where the post-apartheid Constitution contained fully justiciable ESR, it has been noted that the “recognition of the justiciability of social and economic rights facilitates the hearing of previously silenced voices.”23 As Chief Justice Albie Sachs of the South Africa Constitutional Court and others have noted, human dignity and freedom requires ‘freedom and bread’24 – ESR are therefore as vital as CPR. In the South African case, the drafters of the Constitution knew that the hardships faced by the African majority under Apartheid were complex. The hardships were both of the CPR variety (denial of voting rights, denial of fair trials, etc) and of the ESR variety (denial of basic workers rights, denial of basic health provision, etc). In order to safeguard South African’s post-apartheid future and dignity, it was imperative that their ESR were protected and that people were given avenues to seek redress when these rights were violated. This understanding of the interconnectedness of CPR and ESR is paramount to achieving human dignity. If a person’s right to work, health and education are curtailed then they will not be able to fully participate in society nor will they be able to make adequate use of the CPR rights, such as the right to vote, to free speech, and so on.
4. Hierarchy of Rights
A major issue in the justiciability debate is the hierarchy of CPR and ESR. The International Bill of Rights officially divided the two sets of rights – partly because it was deemed that ESR were non-justiciable25 . Since then there have been many proclamations of the interdependence and indivisibility of economic and social and political and civil rights. The European Committee on Social Rights (ECSR) reminded its members of the “the indivisible nature of rights, be they civil, political, economic, social or cultural”.26 The African Charter27 states that “civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality” and “that the satisfaction of [ESCR] is a guarantee for the enjoyment of [CPR]”.28 Furthermore the Charter uses the same language (“shall have the right to…”) when discussing both CPR and ESR. Additionally, a plethora of human rights documents (Convention on the Rights of the Child (CRC), Convention to Eliminate All Forms of Discrimination Against Women (CEDAW), etc) have included a mixture of CPR and ESR. The UN Committee on Economic, Social and Cultural Rights (CESCR) noted that ESR rights are vital to CPR, and are found in many treaties traditionally seen as relating to CPR issues. For instance, the right to work has elements included in some form in the ICCPR, CEDAW, CRC, etc.29 The committee bodies of the CEDAW, CRC and Convention on the Elimination of All Forms of Racial Discrimination (CERD) all consider both sets of rights indivisible and interrelated, “and, whether they have expressly stated it or not, to have justiciable content.”.30
Although often considered to be interdependent and indivisible, there is a hierarchy of rights in practice, with CPR further up the hierarchy than ESR. For instance, the only non-derogable rights (i.e. freedom from torture, freedom from slavery, freedom from prolonged arbitrary detention) in the International Bill of Rights are civil or political. CESCR condemns the view that while it is taken for granted that it is essential that CPR violations require and are amenable to judicial remedies, the contrary view is often the case for ESR.31 While the European Social Charter talks of the invisible nature of rights, Langford notes that the ESR-focused European Committee of Social Rights lacks the binding judicial powers of the CPR-focused European Court of Human Rights, demonstrating a hierarchy once again.32 The attitude of the majority of states seems to be a mixture of recognition of the equal status of ESR while simultaneously failing to do much about protecting ESR as equal rights.33 This hierarchy means that CPR must be protected, while it is less pertinent to do so for ESR. If we come from a position that shows CPR and ESR as equally important, then both sets of rights must be protected, and so solutions must be found to any alleged difficulties in legally protecting ESR.
5. The Rise of Economic and Social Rights
While ESR has been adjudicated in national courts for some time, there has been an explosion of ESR adjudication in the last twenty years.34 This explosion has resulted from the ascent of democracy in Latin America, Eastern Europe and South Africa. Many of the new constitutions written in Eastern Europe, and that of South Africa, contained justiciable socio-economic elements. This was conducted in Eastern Europe to allay fears that by gaining the CPR of capitalism, such as freedom of speech and democratic elections, they would lose the ESR of socialism, such as social security, job security, schools etc.35 This process was not without its critics.36 In South Africa, the apartheid regime had imposed not only severe restrictions on civil liberties but also committed grave socio-economic injustices, therefore ESR were deemed vital in the new Bill of Rights. In Latin America activist courts came to the fore, most notably in Columbia. To further the jurisprudence, from 1991 the UN Committee on Economic, Social and Cultural Rights (CESCR) has given quasi-judicial General Comments which have helped solidify ESR. Regional instruments from this time gave greater focus on ESR, such as the revised European Social Charter (1996) and the San Salvador Protocol (1988). These various and broad based geographical examples of ESR adjudication helps demonstrate that ESR is often in fact realised in practice, and is not merely conceptual. Yet despite these examples there is still much resistance from many quarters.
6. Against ESR Justiciability
Despite the evolutions in the debate since the ratification of ICESCR, there is still resistance from the governments of some countries including the UK and the US to ESR, and resistance too from commentators. The reasons given for separating ESR and CPR and viewing them as different in principle are concerned with i) the very nature of ESR ii) the alleged anti-democratic nature of ESR and iii) the capacity of courts and judicial bodies to make pronouncements on ESR.37 Yet I will show that such arguments do not stand up to serious scrutiny, as ESR are not inherently different than CPR, they do not blur the separation of powers and courts are well within their mandate and experience to adjudicate on ESR.
6.1 The Nature of ESR
The first issue, that of the nature of ESR and how this nature affects its justiciability, is the most complex and detailed. It is important to remember that ESR are being judged against the now rather high bar of CPR. As previously stated, CPR are assumed to be a naturally suitable basis for judicial decision making. Anyone trying to prove that ESR are justiciable must show that they are similar to CPR, or at least only different from CPR by degree, and not in nature.38 CESCR states that the view that ESR are non-justiciable “is not warranted either by the nature of the rights or by the relevant Covenant provisions”, and further that all covenant rights must “be considered to possess at least some significant justiciable dimensions”.39 Langford writes that the phrasing of ESR is no different than CPR, and “the right to freedom of speech is no more concrete in expression than the right to social security.”40 Yet there is a claim that ESR are not rights “as properly understood”41 and critics claim that the term ‘rights’ loses the core of its meaning when applied to ESR.42 Vierday has stated that ESR are “not rights of individuals, but broadly formulated programmes”.43 A version of this line of thinking is used in the Indian Constitution, where ESR are ‘directive principles’, separate (and non-justiciable) from ‘fundamental [civil and political] rights’.
6.1.1 Positive Rights and Negative Rights
The first debate surrounding the nature of rights is whether they are negative rights or positive rights. The traditional viewpoint has often claimed that CPR are the former, while ESR are the latter. A violation of a negative right occurs when the state does something, such as arbitrary arrest (Art 9 (1) of ICCPR). A violation of a positive right occurs when the state does not do something, such as providing free compulsory primary education (Art 13 of ICESCR). It is from this allegedly clear division between positive and negative rights that those hostile to ESR can claim that justiciable human rights can only be those which are negative rights – those which constrain state action. As noted by several authors and explained at length by CESCR in their General Comments, this distinction between negative CPR and positive ESR is misleading and certainly not the full picture. Langford states that ESR, like CPR, “requires not only action but [also] restraint by the government”.44 Langford and other commentators argue that many CPR are positive rights, and many ESR are negative, and that most rights are a combination of both or contain elements of both. For instance, states must allow citizens to vote, but they must also, at a minimum, hold regular elections, and provide the necessary apparatus (voting booths, people to count votes, etc). If a state merely upheld the negative part of the right to vote (i.e. not actively preventing elections), then it would not be fulfilling its obligations. As with CPR, many ESR rights at least contain aspects that are negative and only require state non-interference, for instance not preventing workers from lawfully striking.45 The negative elements of these rights were examined by CESCR, for instance non-discrimination (Art. 3 ICESCR)46 . Their findings were later applied to states’ obligations vis-à-vis the right to work, namely that a state must not allow discriminatory barriers (i.e. unequal pay between the genders).47 Regarding the right to education, Jayawickrama notes there are several negative elements of this right, such as letting parents have the right to choose their children’s school if they seek something other than those run by the state.48 Housing and education have both negative and positive duties.49 In CGT v France, part of the ruling was couched in the negative versus positive debate and was concerned with aspects of the right to work. The French government had amended legislation to include on-call days as ‘days of rest’. The committee found that this infringed the required weekly rest period (mandated by the European Social Charter). Here the Committee demonstrated some of the negative aspects of the right to work, as well as proscribing a retrogressive measure vis-à-vis ESR.50
6.1.2 Progressive Rights and Immediate Rights
Flowing from the false dichotomy between negative and positive rights discourse is the interpretation of ESR as progressive rights, while CPR are immediate. This implies that the states’ obligations with regard to ESR are too costly and far reaching, while their CPR obligations (being negative) can implemented without much complication. This progressive nature is shown in the ICESCR and many documents dealing with ESR (e.g. the European Social Charter). ICESCR talks of States parties ‘taking steps’, ‘with a view to achieving [ESR] progressively’.51 Yet the rights included in ICESCR and other ESR treaties “imposes obligations which are of immediate effect”.52 The ESCR further states that many of the rights/aspects of rights in the ESC can be enacted immediately; for example, Art 3 non-discrimination; Art 7 (a) (i) fair pay; Art 8 trade unions, Art 10 (3) banning children from dangerous work.53 The European Social Charter contains further immediately enforceable rights, such as equal pay54 and restrictions on night work for children55 . Two immediate obligations of particular importance are non-discrimination in exercising covenant rights, and that to ‘take steps’ is not ‘qualified or limited by other considerations’.56 So while full realisation is progressive, steps towards this goal must commence immediately. Steps must be “deliberate, concrete and targeted”.57 Further, there are “minimum core obligations” meaning that “minimum essential levels of each of the [covenant] rights” which must be met immediately.58 In addition, states must immediately start taking steps towards full realization.59 They must also “avoid any measures that result in discrimination and unequal treatment”60
6.1.3 Cost v Cost-freeAnother supposed feature of ESR commonly advanced against their justiciability, is that ESR entail expense, while CPR (being negative) do not. Thus ESR justiciability would mean courts passing judgment on the appropriateness of the use of state resources. Again, the division between the two sets of rights is not so neat. It is true to say that ESR entails costs, but this is not always the case. Allowing workers to form and join unions has no direct, substantial cost to the state. Equally, it is inaccurate to say that the protection of CPR do not entail costs. Langford notes that the fulfilment of the right to a fair trial is very costly to the state.61 Indeed Nolan et al note that it is not that the CPR do not entail costs, it is rather that these costs are not questioned.62 CESCR states the “obligation to monitor” realisation of ESR is not resource dependant63 and that “many [ESR] measures…can be pursued with minimum resource implications”.64 Further, the UN’s Development Programme contends that there are huge dividends, such as a better educated workforce, for investing in free public education, among other rights, especially in Africa, Asia, etc.65 And the ‘cost’ of not implementing these rights may by more costly in the long run. Also it could be argued that enacting and enforcing the right to equal pay among genders would free up more money in the economy.66 Furthermore, “The right to education can be called a multiplier right, facilitating other rights such as freedom of speech, freedom from child labour, the right to health, and the freedom of occupation.”67 Similarly the right to work facilitates the achievement of other rights, both CPR and ESR.68 Suggesting that CPR are always cost-free is not accurate either. For example, organising an election can be a costly process. In fact most CPR incur some degree of cost for their on-going maintenance. As Nolan et al have argued, the costs incurred from CPR are more readily accepted as necessary by the public/government.69 As Steiner et al point out, in certain jurisdictions being homeless makes one unable to vote.70
One argument advanced in favour of limiting ESR is that poor countries would not be able to cover the costs that would arise from fully justiciable ESR. This is reflected in ICESCR, where developing nations are given extra leeway in not providing ESR to non-nationals.71 Yet it is by and large the developing world that is ‘blazing the trail’, in ESR adjudication, especially India, South Africa and Columbia. Indeed, of the states that have signed the ICESCR Optional Protocol, most are developing countries72 . The most vocal opponents of ESR justiciability have often been developed countries, like the USA (which has not even ratified ICESCR), the UK and Canada - all countries with large income distribution inequalities.73
Whether ESR are justiciable, from a strictly legal standpoint, can be answered in the affirmative. ESR rights are justiciable, and they have been protected numerous times through national and regional courts, both as strict ESR and as CPR. It could also be suggested that it seems to be, by and large, poor countries, often newly democratic, that advance ESR, while the older richer nations are those more resistant to ESR justiciability. As previously noted, South Africa, Colombia and several of the post-communist Eastern European nations all enshrined ESR in their new constitutions, and their domestic courts have ruled on issues involving ESR. These countries were largely quite poor at the time of the change in governments, which makes it particularly interesting that they protected ESR rights. So, one might wonder, if ESR can be proven to be justiciable, why is there such resistance? We can only speculate here, but it seems to stem from more of an unwillingness rather than an inability to meet the ICESCR obligations.74
6.2 Anti-democratic Nature of ESR
Connected with all of these issues, especially the issue of state action and the ‘cost’ of rights vis-à-vis resources, is the alleged anti-democratic nature of rights. This fear is related to the separation of powers doctrine, a cornerstone of most contemporary democracies. This doctrine states that the branches of government (executive, legislative and judiciary) need to be kept separate in order for democracies to function, and also for democratic accountability. Critics of ESR state that in order for a court to adjudicate on these rights, they must pass judgment on issues of assessing whether a state has violated its obligation to fulfil ESR to the maximum of its available resources. Thus courts would be performing the role of the legislature in determining where state funds and budgets should be spent – thus blurring the lines separating the judiciary from the other branches of government. Decisions on resource allocation should be left up to the elected branches of government, who are accountable to the people. The judiciary are unaccountable and unelected. Critics further contend that the judiciary has a class bias, while politicians are supposedly representative of the people.
Proponents of ESR counter these claims. In its General Comments, CESCR states that courts are already involved, due to CPR adjudication: “in a considerable range of matters which have important resources implications”.75 The Committee contends that defining ESR as “beyond the reach of the courts would” be arbitrary and go against the interdependent and indivisible notion of human rights.76 Further it would curtail courts’ powers to protect the rights of the most vulnerable.77 First, they state that courts already often pass judgments on the allocation of resources needed for CPR rights. More importantly, the role of the court is to review the law (against human rights criteria), and not to create it.78 This review is an essential part of the democratic process. Fredman states that extending judicial review to ESR further enhances democracy.79 She may be right, as it appears that economic issues are completely out of the hands of those who are most affected. While it is true that courts are unelected, it is equally true that even in the most democratic states, the executive and legislature is largely unrepresentative of the people.80 Women and minorities are often unrepresented.81 Given these difficulties, judges can play a role in making parliament more accountable to the general public. Further, courts often rule on so called retrogressive measures. In the above-mentioned CGT v France case, the committee ruled that newly enacted legalisation in France which stated that ‘on-call’ days would count as rest days was a step backwards in the state’s realisation of the right to work. In the same case, they ruled that the French government’s extension of annual overtime did not violate the laws on excessive weekly work hours. With regard to these aspects of the case, the court did not create new law but rather assessed the case against existing laws and state obligations (in this particular case against the rights in the European Social Charter.)
Langford writes that the courts are fulfilling their democratic mandate duty precisely: to “interpret and particularize” the law.82 This was demonstrated in the case of CGT v. France and again in Autisme-Europe v France.83 The courts looked at existing or new legislation and reviewed it in the context of human rights criteria. It did not attempt to write new laws or control state finances. Critics make two assumptions when talking about the anti-democratic nature of ESR. First “that justiciability means that judges have the last word on the matter. This need not be the case.[…] The second is that the right of participation is alive and well in the political system”.84 Minorities and the poor are often excluded from the political process.85 “These concerns feature in a number of judgments, where Courts have addressed doctrines of separation of powers when dismissing cases, explaining an order or defining the boundaries of their powers”.86 In Denmark, where ESR are fully justiciable, the “courts exercise considerable self-restraint”.87 Thus, such fears might be said to be largely exaggerated. In this way we can see how another of the arguments against ESR (that they will grant courts and judges undue amounts of power) simply does not stand up to scrutiny.
6.3 Capacity of the courts to deal with ESR
Linked to the above is the assertion that the judiciary do not have the capacity to deal with such complex issues, such as allocation of state resources. This issue is one that can be argued against. Courts are deemed capable of dealing with many complex civil and political rights even when difficult financial or technical issues are involved, for example the recent judgments on the U.S. and affiliated spy programs in the context of the right to privacy. It is common for judges to rely on expert testimony in these cases, and so the same can be done on ESR cases which contain complicated issues.
Courts need not be policy experts if their role is to simply review the law, and not make policy.88 If the issues at stake are important enough, methods will be found to overcome this hurdle.89 Courts regularly consult independent experts for help, so one might wonder why they cannot repeat this practice on ESR issues. While there are obvious concerns in giving ‘experts’ greater power in these cases, this applies to both to CPR cases as well as ESR cases, and so cannot be used as a critique only of ESR. As regards the capacity debate, some argue that if the government is worried that the courts are not capable of adjudicating on ESRs, then they should look into developing a way of accomplishing that “rather than suggesting rights claimants should be left without any hearing or remedy at all”.90 Furthermore, courts already have to deal with complicated issues on a daily basis such as choosing between two rights, when dealing with CPR.91 For instance freedom of speech against right to privacy. 92 Although it can be difficult to rule on ESR, that’s not sufficient enough in itself to disregard ESR.93 An example of this is the Olga Tellis v Bombay Municipal Corporation case where the Indian Supreme Court interpreted the right to life as containing the right to livelihood so that slum dwellers could not be evicted without alternate accommodation. 94 In the above mentioned case of Autisme-Europe v France, the committee managed to rule on a complicated educational expenditure.95 These and countless other cases show how courts manage to successfully adjudicate on ESR issues.
7. The Limitations of ESR Justiciability
Others also argue against ESR, but they do this not (necessarily) from a legal perspective, but from a perspective that speculates as to whether ESR adjudication is the best (or even a realistic) way to achieve socio-economic justice – something which is presumably the aim of ESR, since justice is the acknowledged goal of human rights. The human rights framework is one which (generally) pits the citizen against the state with human rights laws serving to protect the citizen from the state. One can already see that in the current age where neo-liberal economic models and the subsequent ‘roll-back’ of the state are championed this framework for human rights protection needs to be (and is being) re-worked. Especially in socio-economic areas, but also in civil and political matters, the state is taking more of a backseat, and markets and multi-national companies (MNCs) and third parties are coming to the fore. Thus, as in the cases of MNCs in the Niger Delta96 and private contractor armies in Iraq97 , steps need to be and are being taken to ensure that when peoples’ CPR and/or ESR rights are being violated by non-state actors, that these actors can be brought to justice. Privatization often makes the landscape more complex in attempting to attribute blame for several systemic human rights violations. Scholars have in recent years convincingly argued that neoliberal economics are incompatible with the promotion of ESR.98 Thus, while not explicitly referring to the forces of neo-liberalism per se, nevertheless some authors believe that the adjudication approach for ESR is misguided, or at the very least cannot be the only approach.99 Dowell-Jones claims that adjudication doesn’t work and is ineffective precisely because it separates ESR into individual rights, claiming that to achieve socio-economic justice you need, amongst other things, to look at the ESR rights (for example ICESCR) as a set.100
Another issue in need of consideration is that if ESR are justiciable and the goals of ESR is to promote socio-economic justice, then how far does ESR adjudication go towards achieving this goal? Many argue that it does not go far enough. We can turn to Rajagopol and his study of several Supreme Court cases from India.101 He attests to a great deal of grandstanding when the court ruled that a particular right needed protection. Yet Ragajopol also notes that the suggested government measures have not been implemented, and little has changed. Others102 talk about the oft mentioned case of Grootboom from the South African Constitutional Court. While certainly one of the most famous cases of ESR justiciability, Fredman claims that this has not achieved much for South Africa’s homeless in that their situation has not altered. Furthermore, courts are hard to access, and are biased in terms of class,103 and thus “the potential role of adjudication as a vehicle for social change is put into question”.104
CESCR states that banning children from dangerous work is something that can be achieved immediately and is relativity cost-free in implementation.105 Yet, Harvey notes that “to ban child labour in production as a matter of universal human rights, they may undermine economies where that labour is fundamental to family survival. Without any viable economic alternative the children may be sold into prostitution instead.”106 Given that it is poverty that generates child labour in the first place, that is the issue that needs to be tackled.
I have shown that, in a similar fashion to their CPR counter-parts, ESR are suitable for enforcement by the courts. They demand both positive and negative state action, in that most ESR are a combination of both or contain elements of both. Both sets of rights entail costs while also having cost free elements, in that not all ESR entail a redistribution of state resources, but can be implemented at a similar cost to CPR. Indeed despite these costs and the extra provisions for developing countries in the ICESCR, ESR adjudication has been most prevalent in developing nations. ESR call for both immediate implementation and progressive realisation, in that ‘taking steps’ is only part of states obligations in fully achieving ESR – certain elements of the rights are suitable for immediate protection. ESR are not inherently anti-democratic and they are within court’s capacity to rule on, in that courts are merely enforcing the law – not creating it – and already call for expert testimony in CPR cases.
ESR adjudication must therefore be viewed as but a small part of a larger process in achieving socio-economic justice. At their most basic, ESR cases bring pressure to bear on governments, as they shed light on when ESR rights are not being fully realised and protected. ESR can help protect the most vulnerable against the ‘unintended consequences of the market’.107 Dowell-Jones argues that ESR adjudication alone cannot achieve socio-economic justice in isolation, rather it must be “comprehensively situated in the broader context of economic and social reality”108 and be part of a struggle that tackles the structural problems that give rise to the violations in the first place.109 He claims that ESR must be understood as a package.110 Nolan et al notes that many of the governments that argue against ESR judicial protection are the same governments who simultaneously “vigorously promote new mechanisms for the adjudication of the economic rights of investors under trade and investment agreements.”111 Thus it is hypocritical to state that it is not possible to protect the rights of the poor while simultaneously promoting the rights of the rich. “Human rights claims characteristically seek to challenge or change existing institutions, practices, or norms, especially legal practices.”112 Therefore it should be of no concern that in advocating for ESR justiciability we are challenging accepted norms. As the recent upheavals in the Middle East have shown, the demand for ‘bread and freedom’ – the demand for ESR and CPR – is as strong today as it ever was.
*Luke Butterly holds a B.A. in History & Politics from University College Cork, and is currently studying for his LLM in Human Rights at Queen's University Belfast.
1 UN General Assembly Resolution 63/117 (2008)
2 International Covenant on Economic, Social and Cultural Rights (ICESCR), G.A. res. 2200A (XXI), 21 U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3
3 ‘Pillay welcomes major breakthrough enabling individual complaints on economic, social and cultural rights’, http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12968&LangID=E
4 A Neier, Social and Economic Right: A Critique, 13/2 Hum.Rts.Brief (2006), cited in HJ Stiener, P Alston, R Goodman, International Human Rights In Context, Law, Morals, Politics (3rd edn, OUP 2008) 283.
5 J Donnelly, Universal Human Rights, In Theory and Practice (2nd edn, Cornell University Press 2003) 8.
6 T Meron (ed), Human Rights in International Law, Legal and Policy Issues (OUP 1989) 6.
7 International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171
8 For example see Vienna Declaration 1993 UN Doc. A/CONF.157/23, para 1.5
9 East-west/Cold war arguments around ESR controversies led to the splitting of CPR and ESR into two treaties, whereas one had been originally envisaged http://www.escr-net.org/docs/i/431329 http://www.escr-net.org/docs/i/431329
10 M Langford, "The Justiciability of Social Rights: From Theory to Practice" in M Langford (ed) Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (CUP 2009) 29, 4.
11 Eg. Committee on Economic, Social and Cultural Rights (CESCR), ECOSOC Resolution 1985/17 of 28 May 1985
12 E.g. European Committee of Social Rights (ECSR)
13 A Nolan, B Porter, M Langford, ‘The Justiciability of Social and Economic Rights: An Updated Appraisal’ (NYU CHRGJ Working Paper Series No.15 of 2007) 1.
14 Neier (n 4) 285.
15 CR Sunstein, Against Positive Rights, 2/1 East Eur.Constit’al Rev.35 (1993), cited in Steiner et al (n 4) 318-9.
16 Neier (n 4) 283.
17 Meron (n 6) 70.
18 This idea is brought up in a feminist context in W Brown, ‘Suffering the Paradoxes of Rights’ in W Brown and J Halley (eds) Left Legalism/Left Critique (Duke University Press 2002) 423; it is further expanded in R Nordahl, ‘A Marxian Approach to Human Rights’, in AA An-Na’im (ed), Human Rights in Cross-Cultural Perspectives, A Quest For Consensus (University of Pennsylvania Press 1992).
19 The International Bill of Human Rights is a name given to cover Universal Declaration of Human Rights, UN General Assembly, 10 December 1948, 217 A (III) the ICCPR and the ICESCR
20 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), UN General Assembly, 18 December 1979, United Nations, Treaty Series, vol. 1249, p. 13,
21 Convention on the Rights of the Child (CRC), UN General Assembly, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3
22 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, N General Assembly, 18 December 1992, A/RES/47/135
23 Nolan (n12) 4-5.
24 ‘Fairness, Justice and Human Rights: Realising Economic, Social and Cultural Rights in the UK’ at the Law Society of England and Wales on the 21st and 22nd of October 2011
25 Meron (n 6) 211-2.
26 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 16, Preamble
27 Organization of African Unity, African Charter on Human and Peoples' Rights ("Banjul Charter"), 27 June 1981, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982)
28 Ibid, preamble
29 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 18: The Right to Work (Art. 6 of the Covenant), 6 February 2006, E/C.12/GC/18, para. 3
30 H Keller, G Ulfstein (eds), UN Human Rights Treaty Bodies : law and legitimacy (CUP 2012) 258.
31 Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 9: The domestic application of the Covenant, 3 December 1998, E/C.12/1998/24, para 10
32 Langford (n 9) 7.
33 Steiner (n 4) 263-4.
34 Langford (n 9) 7.
35 Langford (n 9) 23.
36 Sunstien (n 14) 317-9. See also the arguments of Nier and Sunstien mention in Section 2, para 2
37 These issues/areas used to combat ESR are tackled by Langford (n 9); Nolan et al (n 12); and others. As these are the main issues concerning ESR justiciability, they must be addressed here.
38 Nolan (n 12) 8, 9; Donnelly (n 5) 29.
39 CESCR General Comment No. 9 (n34) para 10
40 Langford (n 9) 30.
41 Steiner et al (n 4) 263.
42 DM Trubek, ‘ Economic, Social, and Cultural Rights in the Third World: Human Rights Law and Human Needs Programs’, in Meron (n 6) 206.
43 Cited in Steiner et al (n 4) 315.
44 Langford (n 9)14; Nolan (n 12) 7
45 ICESCR (n2) Art 8 (1) (d)
46 UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties' Obligations (Art. 2, Para. 1, of the Covenant), 14 December 1990, E/1991/23, para 5
47 CESCR General Comment 18 (n 29) Art 3 (b) (i)
48 N Jayawickrama, The judicial application of human rights law : national, regional and international jurisprudence (CUP 2002) 890
49 S Fredman, Human rights transformed : positive rights and positive duties (OUP 2008) 204, 215.
50 Confederation generale de travail v France No. 22/2009, European Committee of Social Rights
51 ICESCR (n 2) Article 2 (1)
52 CESCR), General Comment No. 3 (n49) para 1
53 Ibid, para 5
54 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163, part II, art 4 (3),
55 Council of Europe, European Social Charter (Revised), 3 May 1996, ETS 163, part II, art 4 (8)
56 CESCR General Comment No. 3 (n 49) para 2
57 CESCR General Comment No. 3 (n 49) paras 1-2
58 CESCR General Comment No. 3 (n 49) para 10
59 CESCR General Comment No. 18 (n 32) para 19
60 CESCR General Comment No. 18 (n 32) para 31 (b)
61 Langford (n 9) 22
62 Nolan (n 12) 8
63 CESCR General Comment No. 3 (n 49) para 11
64 CESCR General Comment No. 18 (n 32) para 12 (b) (ii)
65 I.e. UNDP says health and education pay off in the long run. United Nations Development Program, Human Development Report (1990), at 4, cited in Steiner et al (n 4) 299.
66 For example see 'Equal pay–a good business decision', Equality and Human Rights Commission Policy report 2011. Accessed at http://www.equalityhumanrights.com/uploaded_files/publications/equalpayagoodbusinessdecision.pdf
67 Fredman (n 52) 216.
68 CESCR General Comment No. 18 (n 32) para 1
69 Nolan (n 12) 8
70 Steiner et al (n 4) 263.
71 ICESCR (n2) Art 2 (3)
72 The Protocol has been ratified by Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Mongolia, Uruguay, Portugal, Slovakia and Spain.
73 For example see: ‘Income inequality in the U.S. rivals that of developing nations’, Salon, 17 Jan, 2013, accessed at http://www.salon.com/2013/01/17/income_inequality_in_the_u_s_rivals_that_of_developing_nations/; ‘Income inequality on the rise, especially in large cities’, Canadian Centre for Policy Alternatives, January 28, 2013, accessed at http://www.policyalternatives.ca/newsroom/updates/income-inequality-rise-especially-large-cities; ‘Income inequality is at highest level since the 1930s, says report’, The Independent, 03 March 2013, accessed at http://www.independent.co.uk/news/business/news/income-inequality-is-at-highest-level-since-the-1930s-says-report-8518073.html.
74 The CESCR have stated that an distinction must be drawn between inability and unwillingness to comply with obligations, See CESCR General Comment No. 18 (n 32) para 32
75 CESCR General Comment No. 9 (n 34) 9 para 10
76 CESCR General Comment No. 9 (n 34) 9 para 10
77 CESCR General Comment No. 9 (n 34) para 10
78 Langford (n 9) 34
79 Fredman (n 52) 72
80 Note that 18 out 29 current UK cabinet members are millionaires. ‘Exclusive: Cabinet is worth £70million’, The Telegraph¸ 27 May 2012; Dr. Roslyn Fuller of NUI Maynooth notes that ‘Over 33% of UK MPs have attended a fee-paying school, while the national average of children attending such schools is 8%’ and that “75% of UK MPs held a university degree, with 25% of them graduating from just two universities: Oxford and Cambridge”. Dr. Roslyn Fuller, "Democracy: False Hopes or a False God?", Monday 11th March, Queen’s University Belfast
81 Langford (n 9) 33
82 Langford (n 9) 31-2
83 Autisme-Europe v France, Complaint No 13/2002, 7 November 2003 (European Committee on Social Rights)
84 Fredman (n 52) 100
85 Fredman (n 52) 109
86 Langford (n 9) 21
87 IE Koch, ‘The Protection of Socio-Economic Rights as Human Rights in Denmark’, in Fons Coomans (ed), Justiciability of economic and social rights: experiences from domestic systems (Insersentia 2006) 33
88 Langford (n 9) 35
89 Langford (n 9) 37
90 Nolan (n 12) 4.
91 C Fabre, Constitutionalizing Social Rights, 6 J. Polit. Phil. 263 (1998), at 280 – 283, cited in Steiner et al (n 4) 316.
92 For example see the case in the US concerning the notorious Westboro Baptist Church’s picketing of the funerals of soldiers, in which the right to free speech was weighed as more important that the right to privacy, SUPREME COURT OF THE UNITED STATES, SNYDER v . PHELPS et al. No. 09–751. Argued October 6, 2010—Decided March 2, 2011
93 Fabre (n 100) 317.
94 Case cited in Steiner (n 4) 323-4.
95 Autisme-Europe v France, Complaint No 13/2002, 7 November 2003 (European Committee on Social Rights)
96 Langford (n 9) 17. See also Social and Economic Rights Action Centre (SERAC) and Another v Nigeria (2001) AHRLR 60 (ACHPR 2001)
97 For example see F Francioni, ‘Private Military Contractors and International Law: An Introduction’, Eur J Int Law (2008) 19 (5): 961-964.
98 For example, P O’Connell, ‘Let Them Eat Cake: Socio-Economic Rights in an Age of Austerity’ in Human Rights and Public Finance Budgets and the Promotion of Economic and Social Rights in A Nolan, R O'Connell and C Harvey (eds) (Hart 2013).
99 M Dowell-Jones, Contextualising the International Covenant on Economic, Social and Cultural Rights : assessing the economic deficit (Martinus Nijhoff 2004) Ch 7.
100 Dowell-Jones (n 18) 186.
101 B Rajagopal, Socio-Economic Rights and the Indian Supreme Court: Reflections from a Social Movement Perspective (Draft, August 2004), cited in Steiner et al (n 4) 326-7.
102 For example see Fredman (n 52) 122.
103 Class bias mention by author Rajagopol (n 109) 326-7; also Langford (n 9) 38l; David Harvey, A Brief History of Neoliberlism (OUP 2007)
104 Langford (n 9) 38.
105 CESCR General Comment No. 3 (n 49) para 5 Art 10 (3)
106 Harvey (n 111) 177.
107 R Plant, Social and Economic Rights Revisited, 14 King’s College L. J. (2003) 1, at 13, in Steiner et al (n 4) 288-9. For example see: SERAC and CESR v Nigeria, African Commission on Human Rights, Case No 155/96, Decision made at 30th Ordinary Session, Banjul, The Gambia, 13-27 October 2001
108 Dowell-Jones (n 18) 186.
109 Dowell-Jones (n 18) 186.
110 Dowell-Jones (n 18) 187
111 Nolan (n 12) 6
112 Donnelly (n 5) 12