‘While the status of civil and political rights as human rights is largely uncontested, this is less true for economic, social and cultural rights’. Critically discuss.
INTRODUCTION
ESCR have a powerful genealogy within the evolutionary history of universal human rights.[1] Indeed, in the very birthplace of human rights, in the Europe and America of the 18th century,[2] ESC rights were recognized as part of the essential purpose of human society, to develop the moral and physical capacities of individuals and to dispense social justice.[3]
Tracing the intellectual
lineage of the international human rights movement, it is found to be a firmly
embedded dogma that all human rights are interdependent, indivisible,
interrelated, and consequently, are deserving of equal respect.[4]
Hence, at the time of
drafting the Universal Declaration on Human Rights in 1948, all human rights
were enshrined in the document, together forming an interrelated and mutually
reinforcing normative framework for realizing the ideal of the free human in
modernity.[5] However, this elusive
consonance of worldviews was soon disrupted in the course of framing legal
obligations to effectuate the proclamation. This resulted from interplay
between the dominant global political forces at the time. The process of
positivisation thus ended with the creation of two separate covenants, the
International Covenant for Civil and Political Rights and the International
Covenant for Economic, Social and Cultural Rights, demoting ESC rights to
relative inferiority, and imposing on these rights a second-class status
compared to their CP counterparts.
This divide arose at the time
because the UN intended a pragmatic compromise in the face of the vicissitudes
of inter-state politics. The repeated affirmation by the UN of the
indivisibility of human rights is not a matter of mere rhetoric. Even at the
time of deciding to make two covenants, the GA passed a resolution affirming
the indivisibility of the rights, and the UN has maintained this position at
all levels of its operation.[6]
Recent developments have
aimed to reinstate the ESC rights to their deserved status in the human rights
framework. The changes have been interpreted in many quarters as having largely
dissipated the concerns regarding the comparative status of ESC rights.[7] However, the historic
imbalance has set ESCs on a different trajectory, and complete realignment of
the two categories of rights will require more than redrawing of technical
demarcations. Across the spectrum of actors in the international community, the
prevalent view is, as Theo van Boven has observed, ‘‘while the status of Civil
and Political Rights as Human Rights is largely uncontested this is less true
for Economic, Social and Cultural Rights… [which] are sometimes referred to as
‘aspirations’ phrased in terms of rights but without legal enforceability.’[8]
The purpose of the present analysis is, firstly, to evaluate the extent to which it is correct to assert that the ESC rights continue to have a second-class status within the framework of international human rights law. The second part of the analysis examines the justifications offered for any continued subordination of ESC rights. This involves an appraisal of the full range of conceptual and practical objections that are invoked by opponents of the view that ESC rights are genuine human rights. The overarching thesis advanced through this discussion is that the perspective that ESC rights are not human rights on account of their dubious legal effectuality is fundamentally misconceived. The legalistic conceptualization of human rights is rejected in favour of a more holistic view of human rights as universal moral precepts sanctioned by law. A limited judicial role is envisaged, and in this regard, the jurisprudence of the Constitutional Court of South Africa is discussed in some depth, given that its adjudication on ESC rights is the most progressive among contemporary courts, and is demonstrative of a legitimate judicial contribution to the protection, promotion and fulfillment of ESC rights.
Before embarking on the
analysis, it is necessary to address the preliminary issue of how the terms of
reference are being used. Crucially, it must be asked when a right may be said
to have the status of a human right. Van
Boven makes his observation in the context of how this category of rights is
popularly perceived by the international community, including state and
non-state actors. The relegation of ESC rights to a lower status is attributed
to their general non-legal status and the unavailability of remedies for
violations of such rights.[9]
Secondly, the categories
‘civil and political rights’ and ‘economic, social and cultural rights’ refer
to the rights as contained in the International Bill of Rights, constituting
the Universal Declaration on Human Rights (UDHR), the International Covenant on
Civil and Political Rights (ICCPR) and the International Covenant on Economic,
Social and Cultural Rights (ICESCR). Since its inception, the International
Bill of Rights has been extensively elaborated and reinforced through
conventions and declarations, both at the universal level, by the UN, and the
regional level, in the African, European and Inter-American legal systems.
Having defined the parameters
of the controversy to be evaluated, it is now possible to commence with the
evaluation of whether the ‘human rights’ status of ESC rights is indeed more
dubious than that of CP rights.
ARE ESC RIGHTS HUMAN RIGHTS?
Van Boven observes the status of ESC rights from the
perspective of those who are dismissive of these rights as human rights, on
account of their characterization of a human right as a right that is legally
enforceable and for the violation of which there is legal remedy. Therefore,
the human rights’ status of ESC rights in this context will be evaluated in
terms of the presence of a legal obligation on States, the form and efficacy of
international monitoring mechanisms, the responses of domestic legal systems,
in particular, the availability of redress for violations of rights.
In order to ascertain the nature and scope of the
obligations imposed by the Covenants, it is necessary to trace the roots of
this controversy in the political history of international human rights. This
politico-legal backdrop is an important guide to the interpretation of the
state obligations laid down in the foundational texts and subsequent
developments.
Despite its non-binding nature, the UDHR was a crucial
development as it contains the original design of the UN’s architecture for the
international protection of human rights. As observed by O’Connell, the UN did
not differentiate between the CP rights and the ESC rights at this nascent
stage.[10] Ideology and politics
were the decisive factors in the drafting of the two separate covenants, [11] which had the ultimate effect of stratifying
human rights and relegating ESC rights to the lower stratum.[12] Hence, the ICCPR and the
ICESCR were formulated to guarantee their respective sets of rights.[13]
Against this backdrop, the
language employed by the UN in the two Covenants must now be analyzed to
determine whether the UN accorded primacy to one category of rights over the
other.
Both covenants, in their
preambles acknowledge that ‘the ideal of free human beings…can only be
achieved…if everyone may enjoy his economic, social and cultural rights, as
well as his civil and political rights.’ However, beneath this similarly
composed topsoil, the groundwork of the two covenants seems to include
qualitatively different levels of state obligations and different monitoring
mechanisms.
The obligations imposed on
states by the ICESCR are said to compare quite poorly with those in the ICCPR.
Art. 2 of the ICESCR provides that each State Party to the Covenant had
undertaken to take steps, individually and through
international assistance and co-operation, especially economic and technical,
to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of
legislative measures.[14]
While the language has been
generally criticized as ‘vague’[15] and ‘imprecise’[16], what most academics take
particular objection to is the core terms, that are so indefinite that they
invite contestation as to meaning, including ‘maximum available resources’ and
‘progressive realization’. Craven[17] echoes this view, arguing
that the use of such obscure language, convoluted phraseology and numerous
qualifying clauses eludes any real sense of obligation. Indeed, he argues, it
is possible to conclude from the text that states are given free rein to decide
how the rights are to be implemented. Alston has gone further and argued that
the underdeveloped justiciability of ESC rights is to be attributed to this
ambiguous language, which detract from the normative implications of the
provision.[18]
There is certainly merit to
these critiques. The undertaking for progressive achievement implies there are
no immediate obligations flowing from the covenant. The reference to maximum
available resources further qualifies the obligation in the absence of any
direction as to how resources are to be quantified for the purposes of this
analysis.
This is a further source of
obfuscation in that it is unclear whether these rights are to be regarded as
justiciable and whether violations were envisaged as being judicially or
otherwise remediable. The Committee on Economic, Social and Cultural Rights has
acknowledged that the requirement for progressive realization of ESC rights is
underpinned by recognition of the fact that full realization will generally not
be possible in the short term. Similarly, resource constraints have clearly
been accepted as further delimiting the scope of the requirement.
By contrast, the obligation
on State parties to respect and ensure CP rights as contained in Art.2 of the
ICCPR requires immediate fulfillment. The requirement to adopt legal and other
measures is immediate, and there is explicit provision for addressing
allegations of violations of rights as well as effective remedies, with an
explicit contemplation of a judicial role in these processes.
Prima
facie, there
are glaring differences in the quality and scope of obligations imposed on
states by the two covenants. However, a closer analysis that draws on
subsequent developments is necessary before a conclusion can be reached as to
the comparative status of ESC rights in this regard.
In examining whether there
are any obligations on states to uphold ESC rights, it must first be noted that
the UDHR imposes at the very least, a moral obligation to this effect.
Moreover, under Art.2 of the ICESCR, states have a legal obligation to take
steps to achieve progressively the full realization of the Covenant, using
their maximum available resources.
As noted earlier, the
requirement for progressive realization seems to imply that states have no
immediate obligations under the covenant. Foremost, it would be inaccurate to
suggest that the ICESCR does not create any immediate obligations on State
parties. As the Committee has recognized, there is a necessary baseline that
must be ensured even in times of severe resource limitations which the requirement
of non-discrimination.[19] The Committee has further
identified that the two Covenants are comparable in that the ICESCR also
generates a number of obligations that can take immediate effect, and are also
apt for judicial determination, including the elimination of discrimination, the
provision of free and compulsory primary education for all, among others.[20]
Moreover, as the CESCR has
clarified, the concept of progressive realization merely acknowledges that the
full realization of the stated objectives will usually not be possible in the
short run. This is to be understood in the context of the overall purpose of
the covenant which is to create legally binding obligations upon states. Hence,
resource constraints do not afford a general exemption. Obligations under the
ICESCR are immediate, just as those under the ICCPR, with the only limit
arising in the context where resources are required for the fulfillment of the
obligation and are unavailable.
As to the substance of the
obligation that is immediately effective barring resource constraints, it is
implied that countries with greater resources have higher levels of immediate
obligations. This is not indeterminate and can be ascertained by standard
indicators like the GNP. What is relevant is the total resource available to
the country, not what is publicly owned. Implementation of the covenant may
require individuals utilizing their own resources or the government effecting a
redistribution of resources, depending on the facts. Hence, the obligation is
sufficiently determinate for violations to be identifiable. Not only are there
minimum obligations that all states must fulfil with current resources, but
there is also an obligation to progress towards enhanced fulfillment.
A bifurcate analysis of state
obligations under the ICESCR into ‘obligations of conduct’ and ‘obligations of
result’ lends greater clarity.[21] The obligation contained
in Art.2 of the ICESCR that requires states ‘to take steps’ towards the
realization of rights is an obligation of conduct and as such, it takes immediate
effect. On the other hand, the realization of the rights will generally entail
an obligation of result, which may be progressively attained.[22] According to the CESCR,
the steps are to be taken within a reasonably short time after the Covenant
takes effect and must be deliberate, concrete and targeted.[23]
On the questions of
justiciability and remedying violations, there have been important
developments. Experts convened by the International Commission of Jurists in
1986 authoritatively elaborated on the obligations under the ICESCR. They
formulated the Limburg Principles within which it is stated that although the
rights of the covenant are to be progressively attained, some of these rights
were immediately justiciable at the outset while others would become so over
the process of full realization.[24] The Maastricht Guidelines
were formulated a decade later which addressed ambiguities relating to
violations and remedies. Both these developments have been substantially
adopted in the practice of the CESCR.[25]
In light of the above
analysis, there is little scope to argue that there is no legal obligation on
states under the ICESCR. While the obligation under the ICESCR is more
qualified than that under the ICCPR, to the extent that ESC rights’ status as
human rights depends on their entailing an obligation on states, these rights
undeniably meet that criterion.
The second reason advanced
for the greater contestation as to the status of ESC rights is the contrasting
monitoring mechanisms for the two Covenants. The monitoring mechanism of the
ICCPR is said to far supersede that of the ICESCR, in terms of both scope and
efficacy. This is often taken up by commentators as evidence of the secondary
status of ESC rights.
The two sets of mechanisms
for monitoring the implementations of the two respective covenants are
dissimilar in a number of ways. The most significant differences are, firstly,
the status and nature of the monitoring bodies assigned to each Covenant, the
reporting mechanisms and the inclusion of a complaints mechanism in the ICCPR,
but not in the ICESCR.[26]
The Human Rights Committee,
which is a treaty-based body comprised of an independent body of experts, is
responsible for overseeing the implementation of the ICCPR, and monitoring the
operation of CP rights in member states. By contrast, a subsidiary body of the
UN General Assembly, the UN Economic and Social Council (ECOSOC) was initially
assigned the role of oversight with respect to the ICESCR. However, the ECOSOC
was discharged from this duty due to its inefficiency, and was replaced by the Committee
on Economic, Social and Cultural Rights (CESCR or the Committee).[27]
The composition and
independence of this Committee has greatly enhanced the status of the ICESCR.
This is so despite the fact that it is ultimately subservient to the ECOSOC,
which has power to alter the Committee’s composition and operations. However,
even without the secure status of being a treaty-based body, the Committee is
prevalently deemed to function on a par with other monitoring bodies overseeing
the observance of global human rights obligations.[28]
In accordance with Art.16 of
the Covenant, the monitoring mechanism for the ICESCR operates on the basis of
State-reporting whereby States are required to submit ‘reports on the measures
which they have adopted and the progress made in achieving the observance of
the rights’ contained in the covenant. The Committee considers these reports
and on their bases, prepares concluding observations and comments that are
intended to evaluate the State’s performance and provide recommendations for
improvement. These are not legally binding on the States, but as O’Connell has
phrased it, they nonetheless enjoy a special status.[29]
The non-binding nature of the
Committee’s communications has informed the view that ESC rights are not ‘real’
rights having either recognition or consequence in law. The Committee has
attempted to refute this view by stating that ‘it is incorrect to assume that
reporting is essentially only a procedural matter designed…to satisfy formal
obligation[s], rejecting the notion that they are merely ‘paper tigers’.
At its inception, the ICESCR
did not allow an individual complaint mechanism whereby victims could bring
allegations of breaches of these rights before the Committee. By comparison,
the ICCPR has, from its very outset, established an individual complaint
mechanism through its First Optional Protocol, whereby the HRC is a competent
authority for receiving and considering communications from individuals
alleging infractions of the Covenant rights. This was also a further avenue for
unfavourably distinguishing ESCR from CPR.
However, this relative
weakness of the ESCRs’ framework was later addressed with the adoption of an
Optional Protocol allowing individual complaints from victims of breaches of
the ICESCR.[30] The entry into force of this Protocol in May
2013 was the result of a protracted process that dates back to at least 1991.[31] The adoption of the
protocol is recognized as a major advancement in the implementation of the
ICESCR. Many have hailed it as a substantial contribution towards the full
realization of ESC rights.[32] Supporters of the
OP-ICESCR are also confident that it will pave the way towards improved
implementation and greater attention from States.[33] However, others have been
less optimistic. Mahon[34], for instance, has
identified the use of ‘government-friendly’ language with regard to the
‘examination of communications’ as significantly diluting the strength of the
Committee’s potential for effective oversight. This could ultimately defeat the
purpose.
On a balance, it would seem
that international monitoring mechanisms for the two Covenants are comparable
to each other. There is no significant basis for distinguishing the two, and
hence, by this criterion also, the reason for contesting ESC rights’ status has
diminished.
The final criterion whereby
human rights’ status is assessed is the availability of redress at the domestic
level for infractions of the right. In this regard, it is important to examine
the regional and national applicability of ESC rights.[35]
The CESCR has recognized the
primacy of national remedies. It has stated that notwithstanding the
development of international complaints mechanism, it is the availability and
efficacy of national remedies that is the primary protection for ESC rights.[36] It has placed particular
emphasis on the importance of judicial remedies for reinforcing or
complementing the ICESCR.[37]Despite this
pronouncement, the domestic jurisprudence on ESC rights is quite scant.
There are various methods for
protecting ESC rights in national legal systems. This could be done by
entrenching such rights in the constitution, through ordinary statutory
enactments or through other national institutions.
ESCR are protected by an
array of measures. In some countries, some such rights are enshrined in
constitutions, enacted by parliaments and even originate in collective
agreements between employers and employees. There is also great variation as to
the justiciability of these rights, although a subset of such rights will often
be justiciable.[38]
Domestic constitutional
arrangements determine the means whereby international treaties on ESC rights
can become applicable. In certain cases, whether on account of monism or
treaty-specific provisions for automatic incorporation, such treaties also
become applicable in domestic courts. States like the UK, Sweden and Canada
have adopted the ICESCR through legislative transformation. Others like
Afghanistan, Columbia and Luxembourg have adopted the Covenant into their
national legal systems. Courts will generally opt for interpretations of
domestic law that are compliant with the state’s international obligations.
Occasionally, such
constitutional clauses and incorporation may give rise to subjective rights
that are actionable in courts of law. This has been the case with Art.13(1) of
the European Social Charter and Art.26 of the ICCPR, for instance. Statutory
subjective rights have also arisen in a number of national jurisdictions, as in
the Nordic countries.
It is still uncommon for ESC
rights to be entrenched as justiciable rights in national constitutions.
Liberal ideology continues to pervade instruments the Bill of Rights, which are
generally perceived as shields against the tyranny of the state rather than as
swords for vindicating individual entitlements from the state. The United States’
Bill of Rights is an eminent example. By contrast the Bill of Rights of the
1996 South African constitution entrenches ESC rights as directly justiciable
rights.
The dominant approach in
comparative constitutional law is to interpret provisions on CP rights
expansively so as to indirectly extend protection to ESC rights. Examples may
be found in the US, Canada, Germany and India. Constitutional protection for
ESC rights has also been rendered through directive principles or legislative
commands. While such objective norms do not generate subjective rights, they
offer some measure of protection as interpretive guides for the exercise of
judicial or executive powers. Such an approach has been taken in Germany and
India.
Legislative protection for
ESC rights is specifically emphasized in Art.2 of the ICESCR and the CESCR has
also stated that statutes are generally apt for this purpose, and in certain
cases, it may even be essential.[39] The crucial aspect in
domestic applicability is the efficacy and expediency of remedies. As the CESCR
has noted, in some cases, administrative remedies may be most suited to this
purpose.[40]
There is a clear disparity as
to the level of domestic protection afforded to ESC rights, as compared to CP
rights. Hence, in this context, there is basis for contesting the status of ESC
rights as human rights more seriously.
ERASING THE DISCREPANCY:
RECONCEPTUALISING HUMAN RIGHTS
Despite the advancements in
according ESC rights with the same status of CP rights, there remains a glaring
disparity in terms of the measures adopted at the domestic levels for upholding
the former category of rights.
There is a complex,
intertwined web of objections to the enforcement of ESC rights, stemming from a
foundational conviction that ESC rights are not ‘real’ rights but are
‘aspirational goals’ to be achieved over time. The objections are eclectic in
that they draws on philosophy, politics, economics, jurisprudence and the
pragmatics of state administration and governance. Nevertheless, it is possible
to unravel these objections into two distinct strands. First, there are
conceptual objections to the judicial enforcement of these rights, based on
points of principle. These include arguments of immutability, cultural
orientation, the appropriate role of the state and ideological traditions
prioritizing freedom and equality. The second strand comprises the range of
practical concerns that arise from such enforcement. These include concerns
with implementation, justiciability, violations and resources.[41]
The perceived immutability of
CP rights is one of the chief conceptual bases for distinguishing ESC rights
and denying them judicial protection. Following the natural law philosophy,
proponents of this view argue that CP rights derive from the permanent and
immutable nature of human beings, and are inherent in natural justice. This is
contrasted with ESC rights which are said to evolve with changing societal
conditions. However, this is a purely subjective conviction and cannot
withstand scientific scrutiny. Perspectives from sociology and evolutionary
biology suggest that codes of human behavior like human rights are the product
of cultural evolution. The most profound ideas of religion, politics, justice
and human rights are ultimately socially constructed over the ages. This is
evident in the history of the human rights movement itself.[42] Fundamental civil and
political norms have clearly evolved with changes in social conditions.
Torture, slavery and colonization are stark examples. By contrast, aiding the
weak and inform is a norm that has existed since time immemorial. Therefore, it
cannot be argued that ESC rights should not be preserved because this would hinder
the development of society. All categories of human rights are impermanent but
are nevertheless deserving of protection as they signify the progressive
sophistication of civilization.
The cultural penetration of
Western modernism is the pervasive force that is often said to have elevated CP
rights to prominence across politico-legal systems of the world. Asian values
of familial allegiance and communal values of Africa are said to have been
eclipsed by Western notions of individual autonomy and freedom. However, this
‘clash of civilizations’ thesis[43] inaccurately reduces
entire cultures to a definitive set of norms.[44] The values enshrined in
the UDHR are just as entrenched in Asian thought.[45] Similarly, ESC rights are
not based exclusively on Eastern traditions. Hence, the view that ESC rights
are culturally incongruous with the West cannot be supported.
The third conceptual
objection to ESC rights is founded upon particular view of the appropriate role
of the state vis-à-vis the citizenry and the nature of the obligations
engendered by the two categories of rights. It is argued that the characters of
the obligations entailed by the two sets of rights are ‘inherently different’[46] in that the CPR impose
negative obligations and are consequently readily enforceable[47], while the obligations
for ESCR are positive, and are therefore ‘wholly unsuited to judicial
enforcement’.[48]
The supposed disparity in the
quality of state obligations it the product of a gross oversimplification and
it has resulted in variant levels of enforcement.[49] The proposition that CPR
entail purely negative obligations while ESCR impose positive duties requires
closer scrutiny[50].
It is the individual who is
the focal point of the ameliorations of economic and social conditions.[51] Individuals are generally
expected to fulfil their own needs, using the resources available to them, and
they usually engage in economic and social activities within pre-existing
economic and social systems, respectively. State obligations operate within
this matrix and as such can manifest alternatively as an obligation to respect,
to protect or to fulfil. The obligation to fulfil may be further deconstructed
to an obligation to facilitate and an obligation to provide.[52]
The obligation to respect
would require States to refrain from encroaching upon resources owned by an
individual or obstruct an individual’s economic activities. Under the
obligation to protect, the state would have to guard the individual’s rights
against infringement by other subjects. Finally, the obligation to fulfil
entails either an obligation to facilitate the individual’s endeavors to fulfil
his/her needs[53]
or an obligation to directly provide for the fulfillment of these needs, the
latter arising in exceptional situations, such as recessions or with respect to
marginalized members of the society.
Hence, the three-part
deconstruction of obligations under human rights dissolves the false dichotomy
of rights and thereby greatly attenuates the argument that ESCR cannot be
judicially enforced and in recent literature, there is wider acknowledgement
that the obligations under ESCR and CPR have both positive and negative
dimensions.[54]
The final conceptual
objection is rooted in a political ideology which favours freedom and equality.
Cranston, for instance, adopts a classical liberal approach to argue that CP
rights are real rights while ESC rights are aspirations.[55] However, the social and
international order envisaged in Art.28 of the UDHR is one which will navigate
beyond the compass of left and right political ideologies. Such a holistic
approach must restrain excessive ideological propensities of regimes and
collapse all sub-categorisations of human rights.
There is a myriad of
practical concerns regarding the enforcement of ESCR. They can be broadly
classified as involving objections as implementation, justiciability,
violations and resources.
The argument against the
implementation of ESC rights is based on Art.2 of the ICESCR which calls for
progressive implementation, which contrasts with the immediate enforceability
of CP rights. However, not only do CP rights require progressive measures such
as the training of prosecutors and law enforcement officials, capacity-building
of adjudicatory bodies and conduction of free and fair elections, ESC rights do
require immediate compliance with regard to non-discrimination, minimum core
obligations and taking steps towards realization.
The objection based on the
purported non-justiciability of ESC rights is complex. Essentially, ESC rights
are regarded as programmatic or aspirational. Art.2(3) of the ICCPR is invoked
in this regard, as it explicitly refers to the need for effective remedies
where CP rights are violated. There is no equivalent of this provision in the
ICESCR and this is taken to indicate that ECS rights are not legally
actionable. This view is then logically extended to further assert that the
judicial enforcement of such rights would be a fundamental assault on
democracy, and would require judges to go beyond their remit, transgressing the
limits set by the doctrine of separation of powers.[56] Academics like Sunstein
are of the view that the continued exclusion of ESC rights from the category of
justicible constitutional rights is appropriate.[57]
However, this is ultimately a
question of the precision of the legislation conferring a right and the extent
to which the judiciary is mature enough to assess such a dispute. Whether the
right protects individual autonomy or guarantees a socio-economic service, its
substance has no bearing on whether it can be litigated upon. Moreover, the
fact that the ICCPR also calls for institutions to develop possibilities of
judicial remedies signifies that even CP rights will not always be immediately
justiciable. Moreover, while it may be desirable to not allow an immediate
cause of action to arise while the implementation of a scheme pursuant to the
state’s obligation to fulfil is still underway, there is no reason why the
obligations to respect and protect cannot be justiciable. This view was
reinforced by the Committee which stated that neither the nature of the rights
nor the relevant provisions of the Covenants could be taken to support a view
that CP rights are judicially remediable while ESC rights are not.[58]
One of the chief problems in
relation to the judicial enforcement of ESCR is, as identified by Scott and
Macklem, the imprecision that blurs the nature and extent of the obligations on
State parties.[59]
However, O’Connell demonstrates the circularity of this argument, stating that
the dearth of jurisprudence clarifying the obligations under ESCR has resulted
precisely from the lack of judicial engagement with these rights, which has not
been the case for CPR. Hence, this is hardly a justified critique of ESCR
rights, much less an irremediable problem. Coomans has argued in similar vein
that ESCR have remained largely meaningless in practice due to the neglect
these rights have been historically subjected to.[60] Indeed, commentators like
Bilchitz have gone so far as to assert that the judiciary has shirked its
responsibility with regard to ESCR and it is incumbent upon it to provide
authoritative clarification of the extent of the obligations associated with
these rights.[61]
However, opponents of this
view have maintained that constitutional protection for ESCR is at
‘fundamentally at variance with democracy’[62] and would inevitably
weaken the separation of powers. However, this line of reasoning is flawed in
that in it draws a false demarcation between ESCR and CPR. As O’Connell has
argued, if judicial enforcement is inappropriate for ESCR because the elected
branches of the government are apt for effectuating these rights, then core CPR
should also not be judicially enforced, by parity of reasoning, as there is no
logical basis for distinction.
Judicial competence is
another question of severe contention. It is argued that ESCR are inextricably
linked to economic and social policies, which the judiciary is ill-suited to
consider. The government’s priorities for the nation’s future require budgetary
planning which could be unsettled by adjudication on ESCR. Reallocation of
resources by judges, given they are unaware of the broader context of state
administration, is thought to be disruptive and damaging to the state and its
citizenry as a whole. This is the polycentricity argument, according to which
such decisions have incalculable costs for the executive, in terms of resource
redistribution for its priorities. The fear lies in the threat of an eventual
‘judicial dictatorship’ where the judiciary would assume control over
policy-making and ultimately arrogate to itself core executive functions such
as the control of the budget. However,
as O’Connell has argued, such concerns have been unduly amplified, since the
judiciary does not possess such draconian powers and in any case, solely judges
are not charged with remedying breaches of the covenant.
Closely related to the
question of constitutional capacity is the accountability mechanism for the
different state organs. It is argues that the legislature is apt for the
realization of ESCR given that this body is the elected representative and it
can therefore legitimately uphold the will of the people. Its oversight of
executive implementation of ESCR serves the need for scrutiny without
destabilizing the constitutional balance of powers.[63] In contrast, the
judiciary are appointed, and not elected, and therefore, judicial
pronouncements on the ambit of ESCR do legitimately reflect the will of the
people. The judiciary is unaccountable, and its assumption of such a role of
oversight in relation to ESCR would contravene the bounds of constitutional
propriety.[64]
However, these concerns are
greatly exaggerated and lack intellectual honesty in the analysis of the
judicial role vis-à-vis the legislature and the executive. The political
reality is the accountability mechanisms for the elected branches are deeply
flawed. Moreover, there are mechanisms for scrutinizing the judiciary, and
therefore, it is inaccurate to argue that the judiciary is entirely
unaccountable.[65]
Closely bound to the issue of
justiciability is the question of violations. The view here is that there can
be violations of CP leading to accountability mechanisms that apprehend and
bring to justice the violators of these rights. by contrast, ESC rights are
programmatic. The language of violations is deemed inappropriate here, and
instead, such rights are said to be better suited for assessment in terms
outcomes of programmes and efficacy of services. However, not only are
programmatic approaches to CP necessary in training, legislating and
establishing prevention programs, the violations approach is necessary for ESC
rights where the state is the direct cause of famines, preventable epidemics or
similarly grave crises.
In fact, this question was
specifically addressed in the Maastricht Guidelines. The experts affirmed the
equal status of all human rights, and emphasized that state responsibility for
violations of ESC rights is the same as for violations of CP rights. they
stated further that a state violates its obligations under the ICESCR wherever
it adopts a policy or engages in a practice that deliberately contravenes or
disregards the Covenant or fails to meet the prescribed standards of conduct
and result.
The final practical objection
to the enforcement of ESC rights concerns resources. It is argued that as CP rights
entail negative obligations, they do not require resources while ESC rights,
imposing positive obligations, are resource-intensive. It has also been argued
that ESCR require an elaborate mechanism for resource allocation, which makes
them unsuitable for judicial scrutiny.[66] The untenable nature of
the distinction between positive and negative obligations has already been
demonstrated. Moreover, as Shue has noted, the extent to which a program is
more expensive or complex results from the contextual dimensions of the
problem, not in any inherent negativity of security or positivity of
subsistence.[67]
Moreover, as Holmes and Sunstein’s analysis reveals, all human rights are
resource-intensive and require governmental management.[68]
Moreover, CP rights are also
often limited by budgetary constraints and are nevertheless judicially
enforced. There are further arguments based on overly simplistic views of the
obligations under ESCR and possible judicial remedies in response to
violations. It is argued that ESCR are positive, and the judicial can only
impose ‘mandatory orders’ in response to breaches.[69] These views are based on
manifestly erroneous misconceptions, and as O’Connell states, these are more
‘hyperbolic than substantive.’
Hence, while ESC rights have
largely been recognized in formal legal fora as having the status of human
rights, national legal systems remain resistant to giving these rights domestic
effect. On most grounds the controversy has abated. Nevertheless, in domestic
legal contexts, the controversy remains very much a live issue.
As the foregoing discussion
has revealed, there is no cogent reason for denying ESC rights domestic
applicability. Moreover, the argument that ESC rights can be effectively
protected by judicial oversight is not merely theoretical. As the South African
context demonstrates, the constitutional and judicial protection of ESC rights
can be effectively secured without upsetting the constitutional balance of
powers or requiring the judiciary to arrogate to itself powers that properly
belong to the legislature or the executive.
The 1996 South African
Constitution entrenches both CP and ESC rights as directly justiciable rights
in its Bill of Rights. The Constitutional Court has affirmed that the
obligation to respect is the bare minimum that is justiciable with regard to
all ESC rights.[70]
The courts have also extended protection to oblige the state to fulfil its
positive obligation in respect of a number of rights including the right to
basic education.[71]
However, the court has not encroached upon executive terrain. As the Soobramoney case illustrates, the courts
have been appropriately respectful of constitutional limits. The court
qualified the positive obligations, affording the local government a large
measure of discretion in budget planning in the face of resources constraints.[72] The Court has also
extended oversight to cases of progressive implementation of socio-economic
schemes and resource allocation.[73]
Both the provisions on
standing and the remedial powers of the courts are broadly framed. Statutes
which are found to be inconsistent with the constitution are to be declared
invalid insofar as they are inconsistent. Moreover, courts are empowered to
make any order that is ‘just and equitable’[74] and the court may continue to exercise a
supervisory jurisdiction over the implementation of any remedy.[75]
The South African experience
is a testament to the judicial capacity for contributing to the realization of
social visions without undermining the democratic legitimacy of the judicial
role.[76] While the courts did
later revert to a more deferential model,[77] its jurisprudence
emboldens the claim that ESC rights can be legitimately protected by
adjudication.
The resistance to ESC rights
ultimately flows from an undue fixation on unyielding doctrines of the
separation of powers and the role of the state in human society. In the face of
firmly held convictions in either side of the contestation, there is a need to
return to the fundamentals of theory that underpin these arguments.
A combative model of
executive, legislative and judicial roles wherein the state functions are
maintained in rigid compartments must be revised to allow a cooperative
enterprise between the branches of the state. Human rights must be accorded
their due primacy, and to this end, constitutional roles and powers must be
readjusted as required.[78] A mutually interactive
model, referred to as a constitutional dialogue between the three organs of the
state, allows the state to function as a coordinated whole while preventing the
centralization of powers in any one organ.[79] A dialogic model of
judicial review would not undermine democracy. Rather, through the maximization
of institutional strengths, such an approach would fortify democracy.[80]
While one must be wary of
models that claim universal application,[81] it is possible to
postulate, on the basis of the above analysis, principles of universal
relevance in the vindication of ESC rights.
It is an incontrovertible
truth across legal systems worldwide that the judicial process is not a panacea
for the implementation of human rights.[82] However, as Cottrell and
Ghai have rightly noted, the judicial role in indispensable as it provides
authoritative explication of the contents of rights, delineates state
responsibilities, identifies violations and provides insight for framing
policies.[83]
The crucial point to be emphasized here is that judicial oversight is a final
frontier of protection. it signifies the outermost boundaries of the latitude
given to the state in arranging administrative priorities. However, the
fundamentality of ESC rights, that is, their status as human rights, must be
recognized as being independent of the manner of protection adopted in any
given constitutional system.
The vindication of ESC rights
at the domestic level must span both public and private institutions, including
national human rights institutions, ombudsmen, public interest groups and the
civil society more broadly. The CESCR has emphasized the importance of such
institutions in promoting, overseeing, assisting, identifying benchmarks,
conducting research, monitoring compliance and examining complaints in relation
to ESC rights.[84]
The South African context is
again instructive on this point. The constitution entrusts the South African Human Rights Commission with the
role of amassing information on state organs’ measures towards the realization
of ESC rights.[85]
This information should then inform a range of activities including reporting
to the Parliament and the President, making recommendations to the state
organs, providing assistance to individuals whose ESC rights have been violated
and aiding them to seek redress and leading research and investigations.
Thus, the Commission is a
powerful adjunct to judicial oversight. Its authoritative repository of
information is invaluable to accountability processes, both judicial and
non-judicial, while its monitoring role addresses the limits of the judiciary
in supervising progressive realization. Moreover, its holistic powers
facilitate the identification of defective institutional frameworks and
structurally embedded practices that are violative of ESC rights, and this is a
unique and vital role that is generally left unfulfilled by other state organs.[86]
There is clear scope for
fortifying the role of such commissions and developing the relationship between
these bodies and the courts. It is possible to envisage a model where such a
commission may be responsible for overseeing the implementation of court orders
or utilizing damages awarded and entrusted to it for the purposes of furthering
the realization of ESC rights. The monitoring function of such commissions can
also contribute to the refinement of the
substance of ESC rights. This model should also be further expanded to engage
the civil society in developing norms and scrutinizing the implementation of
ESC rights.
Despite proactive
affirmations of the human rights’ status of ESC rights in the sphere of
international law, the international community has generally remained
unreceptive to this charaterisation. Actors across international and domestic
levels, and within both public and private spheres, commonly associate human
rights status with CP rights, identifying their attendant legal consequence as crucial
qualifying criteria for a right to be labeled a human right. The prevalent
domestic inapplicability of ESC rights remains as a basis for contesting the
status of these rights as human rights.
However, not only is this a
fundamental misconception of the essence of human rights, it is dangerous
misconception that threatens to overturn the progress made since the 1960s in
the avowal of a universal normative vision of the free human being in
modernity. The very purpose of framing a universal code of human rights was to
shield against oppressive and exploitative regimes. Irrespective of political
ideology, cultural traditions and socio-economic conditions of life, the human
rights’ regime created a new world order, a supranational moral authority to which
every national law was subject. It is ironic that we have now come to attach
such importance to legal status as to forget that the international human
rights order was built from the debris of a war wherein the most egregious
violations of common humanity were committed by a regime that was as legally
unimpeachable as it was morally depraved.
As van Hoof has recognized,
the legal status of ESC rights is determinative of their applicability but has
no bearing whatsoever on their validity.[87] However, at the opposite
extreme it has been argued that ESC rights should be protected, but to do so by
characterizing them as rights is not feasible.[88] While it is certainly
true that ESC rights entail programmatic changes and aspirational goals, this
does not preclude a legal dimension to these entitlements. This is especially
vital to ensure that the primacy of these rights independent of changing
political regimes. The argument advanced here is that a human right is not
essentially, or even primarily, a legal right
What is advocated here is not
so much a reconceptualisation of human rights as a revitalization of the
original conceptualization of human rights. It is not enough for domestic legal
systems to accord legal status to ESC rights for the universal solidarity
envisaged by these rights to be achieved. A legalistic analysis of ESC rights
misses the essential nature of human rights as ultimately universal moral
precepts. Hence, to uphold these rights, it is necessary to ensure that there
are effective mechanisms of protection. Legally binding obligations are but one
aspect of an overall system of effective protection, albeit a crucial aspect. For
ESC rights to be genuinely upheld as human rights, the international community
must commit to the universal rule of law that encompasses all civil, political,
economic, social and cultural dimensions of the human condition, and recognize
that freedom for human beings requires the holistic betterment of these
conditions. What is owed by society to the individual is not merely the
restraint of abusive power, but the dispensation of social justice.
However, human rights require
the concerted effort of the state and the society to be realized, not only
isolated components of the state apparatus. Such a holistic approach can
recognize the roles that NHRC and the civil society can play to address the
legitimate concerns with exclusively judicial oversight. This role has not been
effectively discharged because it has been possible for governments to falsely
claim that ESCR are not human rights on account of supposed legal
ineffectuality. However, not only are states under definite legal obligations
with regard to ESCR, violations can be redressed without upsetting the
constitutional balance of powers between state organs
The fact that the covenant
does not replicate the language of the CP covenant should not be taken to mean
that these rights are less important. Rather, this phraseology appropriately
identifies the legal component within a matrix of political, social, moral and
economic dimensions to the notion of human rights. And it is essential that
this view is authoritatively promulgated and propagated so that all actors in
the international community are equipped to assume their respective
responsibilities in relation to the full realization of ESCR.
[1] B-A. Andreassen, ‘Article 22’, in: G.
Alfredsson and A.Eide (eds.), The
Universal Declaration of Human Rights: A Common Standard of Achievement,
1999, pp. 453-488.
[2] C. W. Jenks, ‘Human Rights, Social Justice
and Peace: The Broader Significance of the ILO Experience’, in: A. Eide and H.
Schou (eds.), International Protection of
Human Rights, 1968, pp. 227-261.
[3] J. Locke, Two Treatises of Government, originally published in 1689.
[4] Stephen P. Marks, From the “Single Confused Page” to the “Decalogue for Six Billion
Persons”: The Roots of the Universal Declaration of Human Rights in the French
Revolution, 20 Hum. Rts. Q. 459 (1998)
[5] United Nations. ‘Universal Declaration of
Human Rights: History of the Document’ (2016) <http://www.un.org/en/sections/universal-declaration/history-document/> accessed on
30 October 2017.
[6] World Conference on Human Rights, 1993,
‘Vienna Declaration and Programme of Action’ UN Doc. A/CONF.157/23 para 5
[7] Theo van Boven, ibid
[8]Theo
Van Boven, ‘Categories of Rights’ in Moeckli, Daniel and others (eds), International human rights law (1st edn, Oxford University Press
2010).
[9] K Vasak, ‘Human Rights, A Thirty Years
Struggle’ (Nov 1977) UNESCO Courier, pp 29-32.
[10]O’Connell (n 4).
[11] J Simsarian, ‘Progress in Drafting Two
Covenants on Human Rights in the United Nations’, (1952) 46 AJIL 710 at 710-712
[12]Abdullahi A. An-Na’im, ‘To Affirm the Full
Human Rights Standing of Economic, Social and Cultural Rights’ in J Cottrell
and YP Ghai (eds), Economic, social and
cultural rights in practice: the role of judges in implementing economic,
social and cultural rights (Interights 2004).
[13]Henry J. Steiner, Philip Alston and Ryan
Goodman, International human rights in
context: law, politics, morals (3rd ed. edn, Oxford University Press 2008).
[14] ICESCR
[15] Jheelan
[16] C. Scott and P.
Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights
in a New South African Constitution’ (1992) 141 University of Pennsylvania Law
Review 1.
[17] Matthew Craven,
‘The Justiciability of Economic, Social and Cultural Rights’, in Economic,
Social and Cultural Rights: Their Implementation in United Kingdom Law, ed.
Burchill, Harris and Owers (University of Nottingham Human Rights Law Centre, 1999)
1.
[18] P. Alston, ‘No Right to Complain About
Being Poor: The Need for an Optional Protocol to the Economic Rights Covenant’, in: A. Eide
and J. Helgesen (eds.), The Future of
Human Rights Protection in a Changing World, 1991, pp. 79-100.
[19] CESCR, General Comment 20, E/C.12/GC/20
(2009) para 7.
[20] CESCR, General Comment 3, HRI/GEN/1 (Vol
1) 7, para 1.
[21] Report of the International Law Commission (1977) 2 Ybk of the Intl
L. Com 20 , para 8.
[22] P Alston and G Quinn
[23] General Comment 3
[24] The Limburg Principles on the Implementation of the International
Covenant on Economic, Social and Cultural Rights, UN doc E/CN.4/1987/17
[25]Manisuli Ssenyonjo, ‘Reflections on
state obligations with respect to economic, social and cultural rights in
international human rights law’ (2011) 15(6) The International Journal of Human
Rights 969
[26]Catarina de Albuquerque ‘Chronicle
of an Announced Birth: The Coming into Life of the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights-The Missing
Piece of the International Bill of Human Rights’ (2010) 32(1) Hum Rts Q 144.
[27]Albuquerque.
[28] P. Alston and McCraven
[29] O’ Connell
[30]46 Center for
Economic and Social Rights. ‘International Accountability – Optional Protocol’
(2016) <http://www.cesr.org/section.php?id=175> accessed on 1 November
2017.
[31]Albuquerque.
[32] O’Connell
[33]See Jan
Kratochvil, ‘Realizing a Promise: A Case for Ratification of the Optional
Protocol to the Covenant on Economic, Social and Cultural Rights’ 16 (3) Human
Rights Brief (2009) 30; and Pius Langa, ‘Taking Dignity Seriously – Judicial
Reflections on the Optional Protocol to the ICESCR’ (2009) 27 Nordisk
Tidsskrift For Menneskerettigheter, 29.
[34]Claire Mahon,
‘Progress at the Front: The Draft Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights’ (2008) 8(4) Human Rights Law
Review, 617. 52 Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights (adopted 18 June 2008, entered into force 5 May
2013) UNGA Res A/RES/63/117 (OP-ICESCR)
[35] C Anselm
Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African
Charter on Human and Peoples’ Rights’, in M Evans and M Murray (eds), The African Charter on Human and Peoples’
Rights (Cambridge University Press, 2002) 178
[36] General Comment No.9 (1998) on the domestic application of the
International Covenant on Economic, Social and Cultural Rights, para. 4. Report
of the Committee on Economic, Social and Cultural Rights, UN doc. E/1999/22,
pp. 117 – 121.
[37] General Comment No.9 para 3
[38] B. Bercusson, ‘Fundamental Social and
Economic Rights in the European Community’, in: A. Cassese et al.(eds.), Human Rights and the European Community:
Methods of Protection, 1991, pp. 195 – 290.
[39] General Comment 3, para 3
[40] General Comment 9, para 9
[41] Stephen Marks, ‘The Past and Future…’ – the development of IHRL
[42] Paul Gordon Lauren, ‘The Evolution of International Human Rights:
Visions Seen’ (2nd edn, 2003)
[43] Samuel P, Huntington, The Clash of Civilizations and the Remaking
of World Order 71 (1996)
[44] Thomas M. Franck, Is Personal
Freedom a Western Value?, 91 Am. J. Int’l L. 593, 608 (1997)
[45] Kim Dae Jung, Is Culture
Destiny? The Myth of Asia’s Anti-Democratic Values, 73 Foreign Aff. 189,
190 (1994)
[46] O’Connell
[47] Jheelan
[48] O’Connell
[49] Wiles
[50] DJ Harris, Cases and Materials on International Law (6thedn,
Sweet & Maxwell, 2004) p 655.
[51] General Assembly Resolution 41/128 of 4 December 1986.
[52] CESCR, General Comment No. 12 (1999), para. 15.
[53] An example of such a duty is Art.11(2) of the ICESCR.
[54] Jheelan
[55] Maurice Cranston, Human
Rights, Real and Supposed, in Political Theory and the Rights of Man 43-53
(D.D. Raphael ed., 1967).
[56] Jheelan
[57] C. Sunstein, ‘Against Positive Rights: Why Social and Economic
Rights Don’t Belong in the New
Constitutions of Post-Communist Europe’, East
European Constitutional Review, Vol.2, No. 1 (1993), pp.35 – 38.
[58] General Comment 9
[59] Scott and Macklem
[60] Fons Coomans,
‘Some Introductory Remarks on the Justiciability of Economic and Social Rights
in a Comparative Constitutional Context’ in F Coomans (ed.) Justiciability of
Economic and Social Rights (Intersentia, 2006) 1.
[61] D. Bilchitz,
‘Giving Socio-Economic Rights Teeth: The Minimum Core Approach and its
Importance’ (2002) 119 South African Law Journal 484.
[62] O’Connell
[63] Jheelan
[64] Ibid – jheelan
[65] M. Pieterse,
‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20
South African Journal on Human Rights 383.
[66] Jheelan
[67] Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign
Policy 37 (2nd ed. 1996)
[68] Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why
Liberty Depends on Taxes 48 (1999)
[69] O’Connell
[70] Ex parte Chairperson of the Constitutional Assembly: In re
Certification of the Republic of South Africa, 1996, 1996(4) SA 744(CC)
[71] Ex parte Guateng Provincial Legislature: In re Dispute Concerning
the Constitutionality of Certain Provisions of the Guateng School Education
Bill of 1995, 1996 (3) SA 165 (CC)
[72] Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765
(CC)
[73] B and others v. Minister of Correctional Services and Others, 1997
(6) BCLR 789 (C)
[74] Section 172(1) of the 1996 Constitution.
[75] W. Trengove, ‘Judicial Remedies for Violations of Socio-Economic
Rights’, ESR Review Economic and Social Rights in South Africa, Vol.1, No. 4
(March 1999), pp. 8 – 11.
[76] Karl Klare, ‘Legal Culture and Transformative Constitutionalism’
(1998) South African Journal on Human
Rights 146 at p.188
[77] Pierre de Vos, ‘South Africa’s Constitutional Court: Starry-Eyed in
the Face of History?” (2002) 26 Vermont
Law Review 837 at p.845
[78] M. Minnow, Making All the
Difference: Inclusion, Exclusion and American Law, 1990, pp.361-362.
[79] C. Scott and J. Nedelsky, ‘Constitutional Dialogue’ in J. Bakan and
D. Schmeiderman (eds.), Social Justice
and the Constitution: Perspectives on a Social Union in Canada, 1992, pp.
59 – 83.
[80] Mark Tushnet, ‘Dialogic Judicial Review’ (2008) 61 Arkansas Law
Review 205 at p.206.
[81] William Twining, General
Jurisprudence: Understanding Law from a Global Perspective (Cambridge:
Cambridge University Press, 2009) at p. 9.
[82] Lord Lester of Herne Hill and Colm O’Cinneide, ‘The Effective
Protection of Socio-Economic Rights’ in Ghai and Cottrell (eds.), Economic, Social and Cultural Rights in
Practice (London: INTERIGHTS, 2004) 17 at p.19
[83] Jill Cottrell and Yash Ghai, ‘The Role of the Courts in the
Protection of Economic, Social and Cultural Rights’ in Ghai and Cottrell
(eds.), Economic, Social and Cultural
Rights in Practice (London: INTERIGHTS, 2004) 58 at p.86
[84] General Comment No.10 (1998) on the role of national human rights
institutions in the protection of economic, social and cultural rights, para.3
[85] Section 184(3) of the Constitution
[86] S. Liebenberg, ‘Identifying Violations of Socio-economic Rights:
The Role of the South African Human Rights Commission’, Law, Democracy and Development, Vol.1, (November 1997), pp. 161 –
191.
[87] G. J. H. van Hoof in: ‘The Legal Nature of Economic, Social and
Cultural Rights: A Rebuttal of Some Traditional Views’, in P. Alston and K.
Tomasevski (eds.), The Right to Food, 1984,
pp.97 – 110.
[88] C. Sunstein, 8th footnote in book
