Examining the Justiciability of Rights

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Examining the Justiciability of Economic, Social and Cultural Rights J A C K B E T H K . M A P U L A N G A- H U L S TO N Human rights are usually classified into two groups: (1) civil and political rights and (2) economic, social and cultural rights. Economic, social and cultural rights aim to ensure the satisfaction of basic human needs, such as food, health, employment and education. The satisfaction of these rights usually requires society to have favourable economic conditions or resources. While the two classifications of rights are said to be interdependent and indivisible, the issue of whether economic, social and cultural rights are true rights or mere aspirational targets has attracted considerable scholarly debate and discussion among the international community. This article examines the nature of these rights and analyses the challenges to their justiciability and enforceability.

The topic and discussion of human rights is one which has gained much momentum over the past few decades. At the start of a new century, people around the globe are becoming more aware of the rights they possess, not only as citizens but also as human beings. Human rights have thus become central to the consciousness of today s society.1 While it may be said that the salience of human rights is no longer an issue, there has not yet been agreement on a universal conception of human rights. Human rights discourse and practice continues to be characterised by disagreements as to their nature, content and priority.

The ongoing controversy is partly due to the tendency by some to think of human rights in terms of the right to a fair trial, to freedom of expression and information, to press freedom, freedom of assembly and association and so on. This is quite common in Western liberal democracies which believe that this category of rights, also known as civil and political rights,2 need to have constitutional protection, or be given some special status through the legal system. On the other hand, some scholars and most developing countries tend to promote, and treat as important, rights such as that to food, to an adequate standard of Jackbeth K. Mapulanga-Hulston, PhD candidate, Bond University, Australia The International Journal of Human Rights, Vol.6, No.4 (Winter 2002) pp.29 48 PU B L I S H E D BY F RA N K C A S S , LO N D O N

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living, to health, to work and so on. They claim that these rights often referred to as economic, social and cultural rights deserve to be protected by legal systems.

The main debate and ongoing controversy concerning international human rights law focuses on these differing views of human rights and whether the two categories of rights are interdependent and indivisible.

A major source of dispute relates to the ideological and technical nature of economic, social and cultural rights. The point often raised in these debates is whether these rights are genuine rights or mere aspirational3 targets.

This article seeks to examine the nature and content of economic, social and cultural rights and to analyse the challenges to these rights.

This is important in determining whether economic, social and cultural rights are true rights or mere social ideals. If they are rights, then states are under an obligation to accord them the appropriate protection and implementation mechanisms. Therefore, the way that human rights are understood is important because it influences judgements on matters such as which rights are absolute, which are universal, or which call for international pressure.

As a result of domestic and global challenges, there is an urgent need to re-examine the status of economic, social and cultural rights. Since these rights are part of human rights, this discussion will begin by briefly defining and stating what the term human rights means. Thereafter the study will examine the nature and content of economic, social and cultural rights before addressing the challenges to these rights.

WHAT ARE HUMAN RIGHTS? Human rights are usually associated with the protection of individuals from the exercise of state control in certain areas of their lives. They are also directed towards the creation of societal conditions by the state to help individuals develop to their fullest potential.4 The modern notion of human rights stems from the eighteenth-century movement known as the Enlightenment and in the writings of early political and social philosophers5 who believed that individual rights followed from the perception of human beings as rational individuals, capable of making, and entitled to make, their own choices.6 The purpose of establishing human rights is to defend by institutionalised means the rights of human beings against abuses of power committed by the organs of the state. Human rights also promote the multidimensional development of the human personality. Louis Henkin has defined human rights as follows:

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Human rights are rights of individuals of society every human being has legitimate, valid, justified claims upon his or her society to various goods and benefits They are defined particular claims listed in international instruments deemed essential for individual well-being, dignity, and fulfilment, that reflect a common sense of justice, fairness, and decency.7 Another way of defining human rights would be to look at the effect they have on social relations or human interactions. They possess legal standing which requires that they are enshrined in law and afforded the protection of the legal system. There is usually a tendency to confuse human rights with legal rights. The distinction is that while human rights may be confirmed by legal instruments, they do not derive their source from positive law. They are rights that precede law.

Human rights can take on the form of claims , which entitle the right-holder to make claims of others, for example, in respect of their entitlement to education, health care or free speech.8 Some common features are apparent. First, human rights are understood to represent individual and group demands for the shaping and sharing of power, wealth and other values of societies. Second, human rights refer to a wide range of claims and are expressive of the is and the ought in human affairs. Third, they are universal in character as they are possessed by all human beings.9 The tradition of human rights reflects the processes of historical change and continuity that have helped give substance and form to human rights. In the course of history and as a result of social struggles, different categories of human rights have been conceded and recognised.

There has been the dichotomisation into civil and political rights on the one hand, and economic, social and cultural rights on the other, and the trichotomisation into three generations of human rights.10 These different classifications show and reflect the diversity and lack of concurrence as to the nature, content and priority of human rights.

Civil and political rights basically favour abstention rather than the intervention of the state. These rights have the political philosophy of liberal individualism as well as the economic and social doctrine of laissez faire.11 Economic, social and cultural rights are claims to economic and social equality, and the advent of these rights is associated with the Russian Revolutions.12 These rights require the intervention, rather than the abstention of the state for the purpose of assuring equitable participation in the production and distribution of the values and resources involved. Lastly, due to the changing nature of the international order and the growing interdependence and emergence of

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issues of global importance, the third generation of rights also known as collective or solidarity rights came into existence.13 Classifications of rights are important to the extent that they help in differentiating between the implementation measures attached to certain rights. They also permit determination of the varying degrees of state obligation with respect to the said rights. However, in international law, whether rights are civil, political, economic, social or cultural in nature, it makes little difference to their qualitative status as rights. This is because they are all of universal, equal and interdependent status.14 THE UNIVERSALITY AND INDIVISIBILITY OF HUMAN RIGHTS Human rights are said to be universal. This universal character is what usually distinguishes them from other moral rights. The notion of the universality of human rights stems from the view that human rights belong to all, are linked to human dignity and are fundamental to every type of society. The expression ‘human dignity’ means that by virtue of natural law, each person has the right to be respected and possesses rights which are owed to the individual.15 Thus universality is based on universal values found in all civilisations of the world.16 Further, the fact that human rights are not granted by any government emphasises their universal nature.

According to international law, civil and political rights and economic, social and cultural rights are universal, indivisible and interrelated. Numerous international documents and resolutions have affirmed this position and this view has always been a doctrine of the United Nations. The Universal Declaration of Human Rights (UDHR) of 1948 included both categories of human rights. It did not separate them or give one category priority over the other. This was followed on by the International Covenant on Economic, Social and Cultural Rights (ICESCR) of 1966 which states in its preamble: The ideal of free human beings enjoying freedom from want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.

The indivisibility and interdependence of human rights implies that one category of human rights will have an impact on the other category of human rights. Thus, economic, social and cultural rights may be implicit in, or constitute the basis for, the realisation of civil and political rights and vice versa.17 Thus, any violation of economic, social and cultural rights will also have negative implications for the

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enjoyment of civil and political rights. These two categories of rights are related and are also causally linked. For example, the violation of someone s right to education, which is generally accepted as an economic, social and cultural right, will have an effect on the enjoyment of civil and political rights, such as the right to freedom of expression. This is because education entails the enhancement of knowledge and individual well-being. The right to education thus enables people to make a meaningful contribution to the political affairs or development of their countries. The realisation of the right to education would therefore enhance or encourage their free expression and promote the awareness of their rights.

Despite the stated universality and interdependence of human rights, controversy surrounds the relationship between the two categories of rights. The debate continues over the proper status of economic, social and cultural rights. These debates have been prevalent even before the adoption of the UDHR. Before addressing the challenges to these rights, the study will now examine the nature of economic, social and cultural rights, including a brief mention of their historical context, which demonstrates the basis for the inclusion and protection in international law of this set of rights as human rights.

HISTORICAL ORIGINS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS The concept of economic and social justice has been expressed in many ways and in many places over the centuries. This concept is both ancient and universal such that when the political evolution produced the modern nation-state, it found expression in the inclusion of economic and social rights in many constitutions.18 These rights developed in the later nineteenth and early twentieth centuries, when people called upon the state to intervene in order to redress manifest and undeserved injustices suffered by individuals and the groups to which they belonged. This was done by promoting such rights as the right to work, health, education and housing. As a result of notions of rights and economic and social justice, economic, social and cultural rights were created and developed.

The international emergence of economic, social and cultural rights can be traced back to the formation of the International Labour Organization (ILO) following the First World War. The Treaty of Versailles19 established this organisation in 1919 to abolish the injustice, hardship and privation which workers suffered and to guarantee fair and humane conditions of labour .20 During the inter-war years, the ILO adopted international minimum standards in relation to a wide range of

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matters which now fall in the category of economic, social and cultural rights. International standards pronounced by the ILO included the right to organise and form trade unions, limitations on forced labour, minimum work hours, sickness protection, and freedom from discrimination in employment. The action of the ILO was in response to the workers of the time who called for more concrete workplace-related rights and conditions associated with such rights.

Partly as a result of these developments, proposals were made during the drafting of the United Nations Charter for the inclusion of such provisions promoting and protecting the enhancement of employment.21 President Franklin D. Roosevelt was one of the first people to be credited with having brought the idea of economic and social rights to the forefront of contemporary international legal discourse. By the 1930s, support for a stronger role for the state in regard to social justice was increasing. Roosevelt s 1941 State of the Union Address helped the advancement of the welfare functions of the state. In this speech, he characterised economic rights as the freedom from want by stating: We have come to the clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men . People who are hungry and out of a job are the stuff of which dictatorships are made.22 In his 1944 State of the Union Address, Roosevelt proposed the inclusion of many economic, social and cultural rights, which were subsequently included in the Universal Declaration.23 Thus, the Universal Declaration guaranteed civil and political rights as well as economic, social and cultural rights and did not distinguish between the two sets of rights. It was later elaborated upon and given legal force by the ICESCR.24 THE NATURE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS The main objective of economic, social and cultural rights is to put a state under a legal obligation to utilise its available resources maximally in order to redress social and economic imbalances and inequalities. The promotion and protection of these rights can be attained when the social and economic conditions of individuals are improved. Economic, social and cultural rights imply a commitment to social integration, solidarity and equality and include tackling the issue of income distribution. These rights are indispensable for an individual s dignity and the free development of their personality.25 Economic, social and cultural rights

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are made up of three components which are interrelated, namely, economic, social and cultural rights: Economic Rights It is usually impossible to separate completely economic from social rights. This is because these areas usually have both economic and social characteristics and effects.26 In order for people to enjoy their social rights, it is also necessary that they enjoy their economic rights.

Examples of economic rights are the right to work and the right to education.27 The right to education is an example of how economic and social rights are intertwined. Education is important to enable one make the optimal use of property, to secure an adequate standard of living, to obtain satisfactory work and perform well in work. This right also ensures the use of income derived from property, work and social security to be used in an optimal way for an adequate standard of living.28 These rights have a dual function which is most clearly demonstrated with regard to the right to property. This is because on the one hand, this right serves as a basis for entitlements which can ensure an adequate standard of living, while on the other hand it is a basis of independence and therefore of freedom.29 Economic rights thus presume a certain amount of economic development.30 Social Rights At the very core of these rights is the right to an adequate standard of living. The enjoyment of social rights requires at minimum that everyone enjoys the necessary subsistence rights such as adequate food and nutrition, clothing, housing and the necessary conditions of care. This is provided for in Article 11 of the ICESCR. Under this article, States Parties to the Covenant are requested to recognise the fundamental right of everyone to be free from hunger. They are required to take appropriate measures and programmes to enhance this right.31 Cultural Rights Cultural rights are an important component of human rights and are conceived as the rights of groups to preserve and develop their cultures.32 These rights have been recognised in the ICESCR33 as well as the Universal Declaration of Human Rights.34 Cultural rights form a subset of individual rights and include matters such as the right of every person to participate in the cultural life of the community, and the right to protection of artistic, literary and scientific works.35

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The right to culture is the equal right of individuals to have access to this accumulated cultural capital. An extension of this view is the right to cultural development, which has been identified by many governments as well as international organisations as a specific process of cultural change. Due to their content, cultural rights are closely related to other individual rights and fundamental freedoms such as freedom of expression, freedom of religion and belief, freedom of association, and the right to education.36 CHALLENGES TO ECONOMIC, SOCIAL AND CULTURAL RIGHTS Despite the fact that international law recognises economic, social and cultural rights as genuine rights, a lively and contentious debate over the ideological and technical nature of these rights continues. This study will outline and analyse the challenges to economic, social and cultural rights.

It is generally not disputed that the plight of the poor should be dealt with by the state and that the state has an obligation to devise policies that will improve the standard of living of all citizens. What remains in dispute is whether the state should be placed under a legal and justiciable duty to take certain policy steps in order to address the social and economic needs of individuals. This is where the protection of legally enforceable social and economic rights as opposed to aspirational social and economic rights enters the debate. Thus the main area of scepticism about economic, social and cultural rights being real rights relates to their justiciability and enforceability.

THE CONCEPTS ASSOCIATED WITH JUSTICIABILITY Related issues as to whether a right is ‘justiciable’ or not are usually concerned with whether the right would be suited to determination in judicial proceedings, whether it vests an enforceable right in the individual, and whether it lends itself to sufficiently specific obligations on the part of the states.37 Before analysing the justiciability of economic, social and cultural rights, it is necessary that this article defines some key concepts which are prevalent in the debate.

There is a need to make the distinction between justiciability and enforceability, and between justiciability and judicialism. This is because part of the reason for the misunderstanding of economic, social and cultural rights lies in the fact that these concepts are usually not defined during debates.

Distinguishing justiciability from enforceability is crucial to the debate on the justiciability of economic, social and cultural rights

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because quite often enforceability is wrongly equated with justiciability.

The enforcement of human rights deals with the identification of the entitlements and duties created by the legal regime, which have to be maintained and executed. Justiciability, on the other hand, presupposes the existence of a review mechanism to determine non-compliance with the terms of the legal regime. Although they are two different concepts, a close relationship exists between justiciability and enforceability, as the former is a direct follow-up to the latter.

Justiciability also needs to be distinguished from the concept of judicialism. While judicialism may entail justiciability, not all justiciability is judicial. This is because judicialism is directed to the court system, while justiciability essentially inheres in the idea of review, though this of itself does not exclude court processes. Therefore, for rights to be justiciable, they do not necessarily have to be dealt with in the courts of law, or to be judicial. The review process can afford the necessary justiciability of rights.

Debates surrounding the justiciability of economic, social and cultural rights revolve around the perceived role of the state. The main emphasis with regard to civil and political rights is that the state is required not to interfere, whereas a major element with regard to economic, social and cultural rights is the requirement for state intervention and assistance.

This study will now address the major arguments by supporters of the claim that economic, social and cultural rights are not real rights and thus not justiciable. These areas are mainly that: (1) Economic, social and cultural rights cannot be applied in courts of law; (2) Economic, social and cultural rights are costly as they require resources for their realisation; and finally, (3) Economic, social and cultural rights are not easily definable in law.

Applicability in Courts of Law According to the legalistic approach, human rights are meaningless unless enforceable in a court of law. They are thus seen to exist when one party can effectively insist that another deliver goods, services or protection and third parties will act to reinforce (or at least not hinder) their delivery .38 This school of thought is of the opinion that civil and political rights are justiciable mainly because they are usually applied by courts of law and other similar judicial bodies. This argument goes further to state that economic, social and cultural rights, on the other hand, are merely social targets and are more political in nature than legal.39

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For instance, a critic of the applicability of economic, social and cultural rights, E.W. Vierdag argues that the right to food is not an individual right. He maintains that it is just a broadly formulated programme for governmental policies in the economic and social fields.

For him, the implementation of economic, social and cultural rights is a political matter, not a matter of law, hence not a matter of human rights.40 Most discussions relating to the legal nature of economic, social and cultural rights do not relate to their validity but rather to their applicability.41 The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights,42 emphasises the possibility of some of the provisions of the ICESCR being applicable in courts of law. On the international level, the justiciability of economic, social and cultural rights, or at least some elements of them, has developed mainly through the complaints procedures under treaties on civil and political rights.43 The Human Rights Committee is one such organ which has stated that the non-discrimination clause in Article 26 of the ICCPR was applicable also in relation to the enjoyment of economic, social and cultural rights.44 This Article states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The Committee explained the use of this Article as follows: Although Article 26 requires that legislation should prohibit discrimination, it does not of itself contain any obligation with respect to the matters that may be provided for by legislation. Thus it does not, for example require any State to enact legislation to provide social security. However, when such legislation is adopted in the exercise of a StateÂ’s sovereign power, then such legislation must comply with article 26 of the Covenant.45 The limitation of justiciability in international fora to civil and political rights alone is attributable to the restrictive understanding of justiciability. This is because the substantive aspects of review and the attainment of justice, which underlie justiciability, are ignored or misunderstood. Further, inquisitorial justiciability, which involves the institution of an enquiry mechanism as undertaken by bodies such as the Human Rights Committee or the Committee on Economic, Social and

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Cultural Rights when they examine state reports, is equally important.

Inquisitorial justiciability is obligation-based and is a parallel and supplementary mechanism for the justiciability of human rights, particularly economic, social and cultural rights, in international law.46 Existing discussions on the justiciability of economic, social and cultural rights may appear somewhat unfavourable in that there is not yet a conclusion on this debate. From a legal perspective, however, the controversy should have been laid to rest when the member states of the United Nations collectively recognised that all human rights are an essential part of the international world and thus adopted and signed universal and regional human rights declarations.47 All human rights treaties embodying economic, social and cultural rights are legally binding and thus create legal obligations on States Parties. In some countries, these rights have been incorporated into domestic law,48 which accords them a formal and direct legal validity on the domestic plane.

Further, some economic, social and cultural rights have been shown to be enforceable in the context of domestic law provided that their component parts are formulated in a sufficiently precise and detailed manner. Such is the case, for example, with some of the labour rights which have been proclaimed in the ICESCR in Articles 6, 7, 8, 9 and 10. These rights have been elaborated upon and then spelled out in greater detail within the framework of the system of international labour conventions and recommendations by the ILO, which also requires its members to adopt and subsequently include such rights in their Constitutions.

The contention is that the justiciability of economic, social and cultural rights should not be viewed as being dependent only on the court process alone. A more realistic approach to the protection of economic, social and cultural rights is needed which adopts an enabling, solution-based approach. This can be done, as already stated, by adopting other review and enforcement processes available in international law which make these rights justiciable.

The fact that there are differences between the various categories of rights and their corresponding obligations should not obscure recognition of their equal importance and status as rights. Economic, social and cultural rights should not be denied their status as real rights by the use of narrow academic legal arguments.

POSITIVE RIGHTS VERSUS NEGATIVE RIGHTS The argument against accepting economic, social and cultural rights as being justiciable rights further states that the implementation of these rights is too costly and therefore cannot be justiciable in law.

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Proponents of this line of thinking maintain that obliging the state to provide welfare to the individual needs the active intervention on the part of governments, which requires the use of state resources. For example, the right to adequate health would require the establishment of healthcare facilities such as hospitals, clinics and public health centres. The state would also need to put in place adequate preventive and corrective measures for the enhancement of people s general health and well-being.

Due to this resource-intensive and costly nature, some scholars maintain that economic, social and cultural rights are of a fundamentally different nature from civil and political rights. The latter are said to be negative rights as their implementation is cost-free. Economic, social and cultural rights, on the other hand, are positive rights because they are costly. Since they involve costs, the argument goes, it is not appropriate that the court system and judges deal with these rights. This is because the court system is not qualified to evaluate how much money is necessary to be spent, or how much society can afford.49 Thus, negative rights theorists assert that while negative rights, or civil and political rights, are costless, positive rights always make a claim on scarce resources.

This article argues that the distinction being made between positive and negative rights is not entirely justified for a variety of reasons. First, there are a number of economic, social and cultural rights that do not require state resources and financing for their implementation. For instance, the right to participate in trade unions, found in Article 8 of the ICESCR, does not oblige a state to take any action. Other examples are the right to free choice of employment, the right to form trade unions and the right to participate freely in the cultural life of the community.

These rights do not inherently require affirmative state action to ensure their enjoyment.

The distinction between positive and negative rights therefore fails, since both sets of rights have to be asserted against a background of scarcity. As such, there are some aspects of economic, social and cultural rights that are negative. A further example would be the interpretation of Article 11 of the ICESCR made by the Committee on Economic, Social and Cultural Rights. The Committee stated that the right to adequate housing in Article 11 includes an obligation to refrain from forced evictions except in the most exceptional circumstances, and in accordance with the relevant principles of international law.50 Second, any study into the enforcement and realisation of civil and political rights will reveal that these rights also require a large amount of state financing and resources. Civil and political rights, like freedom of

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association and movement, are claims not just to respect an individual s freedom to associate and move, but also to government protection for that freedom.51 Further, in all societies, negative rights are also protected through the apparatus of state regulation by means of legislation, police forces and related controls and therefore cannot be said to be costless.52 The right to a fair trial, for example, requires the maintenance of an effective justice system, the provision of publicly financed defenders, the payment of interpreters should such a service be required, the provision of adequate security systems and so on. Thus in protecting civil and political rights, the state is required not merely to refrain from certain actions, but to create an environment which fosters the development of all individuals. While costs associated with the implementation of such a system are probably not of the order of providing comprehensive social security for individuals, they are still not negligible and may impose a significant burden on the state.53 In order to provide adequate protection of these rights, the state has to use a lot of resources to ensure due process to all citizens. Notably, the claim that economic, social and cultural rights are burdensome usually uses other less controversial rights as a standard of comparison which suggests that economic, social and cultural rights are substantially more burdensome and expensive.

Once this is taken into account, the purported cost-free rights begin to look a lot more costly. The European Court of Human Rights, although predominantly dealing with civil and political rights, has supported this view. The Court stated: The fulfilment of a duty under the Convention on occasion necessitates some positive action on the part of the State; in such circumstances, the State cannot simply remain passive.54 Thus a clear-cut dichotomy between civil and political rights requiring merely abstention or non-interference on the one hand, and economic, social and cultural rights requiring positive action on the other, cannot be maintained. It needs to be emphasised that all human rights require, to varying degrees, a combination of negative and positive action from the state. Whether the issue under consideration is the provision of universal primary education or an effective and independent judiciary or penal system, the state still has to provide resources.

Definition of Economic, Social and Cultural Rights It is sometimes argued that only civil and political rights can be defined with such precision as to be judicially enforceable. This line of argument

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maintains that the content of economic, social and cultural rights is inherently vague and indeterminate and as such these rights do not lend themselves to judicial enforcement.

Obligations relating to most civil and political rights are considered to be capable of relatively precise definition, are readily justiciable, and are susceptible of enforcement. In contrast, economic, social and cultural rights are said to have attracted no real governmental commitment, to concern issues considered to be inherently intractable and unmanageable, and are often considered too complex to be dealt with under the rubric of rights.55 This is partly attributed to the lack of a precise definition of these rights. This has led some scholars to assert that economic, social and cultural rights are not recognised by law and as such cannot be directed at government action as they have not been defined in terms of law. Further, that in order to be a legal right, a right must be legally definable and only then can it be legally enforceable and be justiciable.56 While it is accepted that for human rights to be recognised in any society as claims or entitlements, they are to a large extent dependant on the specific form in which they are expressed. However, the main issue is that this should not serve to deny economic, social and cultural rights their status as rights. According to R. Cassin, one of the principal draftsmen of the Universal Declaration, economic, social and cultural rights were not considered to belong to an inferior category even though they depended on varying conditions and were vague so as to be legally definable.57 It must be emphasised that the process of defining and elaborating the content of economic, social and cultural rights is an ongoing and dynamic one. Certain rights become progressively recognised and defined, and such is the case with these rights. Thus, despite the acceptance of these rights in international law, their content and meaning is still in the process of development, but this should not serve as a excuse to deny their human rights status.

CONCLUSION It is important that an understanding of the importance of economic, social and cultural rights be made. As already stated, these rights are rights to certain opportunities and conditions that are essential to enable an individual to enjoy a decent standard of living. The emphasis is on the quality of life attainable if economic and social justice is ensured by the protection of economic, social and cultural rights for everyone.58 The major problem concerning the debate about the justiciability of economic, social and cultural rights is that the critics of these rights

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confuse entitlements to economic, social and cultural rights with degrees of realisation following from the provisions of the ICESCR. From the perspective of international law, this issue is to a large extent settled by the formal international recognition of this set of rights.

There has been a remarkable degree of consensus by governments that economic, social and cultural rights should be protected under international law.59 Further, the United Nations does not classify rights, as it is official UN policy that all human rights are of equal value, universal, indivisible and interdependent. The position of the UN General Assembly is clear on the issue. It has stated that: All human rights and fundamental freedoms are indivisible and interdependent and that equal attention and urgent consideration should be given to the implementation, promotion and protection of both civil and political rights and economic, social and cultural rights.60 The argument that economic, social and cultural rights are not real rights, and the tendency to dismiss them as such, is thus both misguided and counterproductive. The obvious necessity for human survival of access to adequate food, shelter, healthcare and other essentials confirmed as human rights in international instruments has unfortunately not prevented considerable debate about the nature of economic and social rights and the responsibility of the states to ensure their realisation.61 Economic, social and cultural rights are fundamentally claims to social equality. Since they are rights, then there is an obligation to accord them the appropriate implementation mechanisms and protection.

NOTES 1. T. Fleiner, What Are Human Rights? (Sydney: The Federation Press, 1999), p.6.

2. Civil and political rights are usually referred to as ‘liberty rights’ and are meant to protect the individual from arbitrary acts by the state. Rights belonging to this set of human rights include the right to life, independence of the judiciary, fair trial, freedom of thought and expression and freedom of assembly and religion. These rights are provided for in the International Covenant on Civil and Political Rights (ICCPR), 1966.

3. Not legally binding but mere social goals or objectives. Rights need to be distinguished from goals, aspirations and social morality. Social morality and ethics concern norms that emerge from interactions between people and the rules that emerge from those interactions. See D. Warner, ‘An Ethics of Human Rights: Two Interrelated

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4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

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S. Davidson, Human Rights (Buckingham: Open University Press, 1993), p.24.

These included philosphers such as John Locke, David Hume, Immanuel Kant and Jean-Jacques Rousseau.

Over 200 years ago, the German philosopher, Immanuel Kant wrote an essay entitled What is Enlightenment? For Kant, this was an individual s final coming of age, the emancipation of the human consciousness from an immature state of ignorance and error. These thoughts later developed in that body of progressive or liberal ideas and options advanced by the leading intellectuals and propagandists of the day. R. Porter, The Enlightenment (London: Macmillan, 1990), p.1.

L. Henkin, The Age of Rights (New York: Columbia University Press, 1990). On the other hand, Jack Donnelly s definition of human rights addresses what rights do rather than what they are: Human rights are titles that ground claims of a special force. To have a right to x is to be specially entitled to have and enjoy x. The right thus governs the relationship between right-holder and duty-bearer, insofar as that relationship rests on the right. In addition to have a right is to be empowered to press rights claims which ordinarily trump ... other grounds for action...the duties correlative to rights belong to the right-holder, who is largely free to dispose of those duties as he sees fit. See J. Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press, 1989), pp.9, 10.

The term right is one that can be used to describe a number of legal relationships. It can be used in its strict sense of the rights-holder being entitled to something with a correlative duty in another, to indicate an immunity from having a legal status altered, to indicate a privilege to do something or it can refer to a power to create a legal relationship. See T. Meron (ed.), Human Rights in International Law: Legal and Policy Issues (Oxford: Clarendon Press, 1989), p.71.

B.H. Weston, Human Rights , in R.P. Claude and B.H. Weston (eds.), Human Rights in the World Community: Issues and Action (Philadelphia: University of Pennsylvania, 1989), p.16.

The classification of human rights into three generations was advanced by the French jurist, Karel Vasak. These are civil and political rights, economic, social and cultural rights and lastly collective or solidarity rights. While not universally accepted, it has received general recognition. This classification is said to be somewhat misleading if taken in a sense other than historical due to the fact that the word generation is a loaded term and may be subject to varied interpretations. This model is a simplified version of an extremely complex historical record. Stiegart states that a point to the proper understanding of human rights law is that this code does not rank rights in any hierarchy or any order of priority and it is not possible to have a consistent classification of them. It is only possible to group them according to their various attributes. See P. Stiegart, International Human Rights Law: Some Current Problems , in R. Blackburn and J. Taylor (eds.) Human Rights for the 1990s Legal Political and Ethical Issues (London: Mansell, 1991), p.26.

Claude and Weston (note 9), p.17.

The first Revolution of 1905 was an attempt to transform the Russian government from an autocracy into a constitutional monarchy. Two more Revolutions of 1917 (held in March and November) were partly against governmental corruption and inefficiency and the scarcity of food. See The New Encyclopaedia Britannica, Vol.10, (15th Edition, 1990), pp.257, 258.

W.F. Felice, Taking Suffering Seriously (Albany: State University of New York Press, 1996), p.32.

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14. See Davidson (note 4), p.43. A point to the proper understanding of human rights law is that this code does not rank rights in any hierarchy or any order of priority and it is not possible to have a consistent classification of them. It is only possible to group them according to their various attributes. See Stiegart (note 10), p.26.

15. P. Van Dijk, A Common Standard of Achievement. About Universal Validity and Uniform Interpretation of International Human Rights Norms , (1995) 13 Netherlands Quarterly of Human Rights, p.108.

16. See also S.P. Subedi, Are the Principles of Human Rights Western Ideas? An Analysis of the Claim of the Asian Concept of Human Rights from the Perspectives of Hinduism , California Western International Law Journal, Vol.30, No.1 (1999), p.57.

According to Subedi if we look at the practices of all major civilisations we will find that every one of them had a system designed to protect the individual s safety and dignity.

17. For example, while the right to education is dealt with in Articles 2 and 13 of the ICESCR, this right is also provided for in Articles 18 and 26 of the International Covenant on Civil and Political Rights. Similarly, the right to form trade unions is included in the ICESCR while the ICCPR provides for the right to freedom of association.

18. G.A. Mower, International Cooperation for Social Justice: Global and Regional Protection of Economic/Social Rights (Westport, Conn.: Greenwood Press, 1985), pp.1, 2.

19. The Treaty of Versailles was the first and most significant treaty signed after the First World War. It was signed on 28 June 1919, and amongst other things, it established the League of Nations Covenant.

20. V. Leary, Lessons from the Experience of the International Labour Organisation , in P. Alston (ed.), The United Nations and Human Rights: A Critical Appraisal (New York: Oxford University Press, 1992), p.582.

21. See generally, R. Russell and J.A. Miller, History of the United Nations Charter: The Role of the United States 1940 1945 (Washington DC: Brookings Institution, 1958).

22. P. Alston, U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy , American Journal of International Law, Vol.84 (1990), p.387. Freedom from want included the right to a useful remuneration, the right to earn enough to provide adequate food and clothing and recreation, the right of every family to a decent home, the right to medical care, the right to adequate protection from economic fears, and the right to a good education.

23. In this address, Roosevelt spelled out the rights which included the right to useful and remunerative job, the right to earn enough to provide adequate food and clothing, the right of every family to a decent home, the right to medical care and the opportunity to achieve and enjoy good health and the right to a good education.

24. J.W. Foster, Meeting Challenges: Renewing the Progress of Economic and Social Rights , University of New Brunswick Law Journal, Vol.47 (1998), p.197. The ICESCR was adopted by General Assembly Resolution 2200 A (XXI) of 16 December 1966.

25. Article 22 of the UDHR. 26. The ICESCR has not made any explicit distinction between economic and social rights.

27. Articles 6, 7, 8, 9 and Article13 of the ICESCR. 28. A. Eide, Economic, Social and Cultural Rights as Human Rights , in A. Eide et al. (eds.), Economic, Social and Cultural Rights (Dordrecht: Martinus Nijhoff, 1995), p.32.

29. Ibid., p.31.

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30. Z. Khan, International Economic Rights , Across Borders International Law Journal, web document, http://law.gonzaga.edu/borders/khan.htm [accessed 3 Aug. 2000].

31. Article 11 (2) of the ICESCR. 32. Freedom to express one s view, to adhere to one s religion, to associate with others for peaceful purposes are all essential to the maintenance and development of any culture. See also L.V. Prott, Cultural Rights as People s Rights in International Law , Bulletin of the Australian Society of Legal Philosophy, Vol.10, No.36 (1986), p.6.

33. Article 15 of the ICESCR. 34. Article 27 of the UDHR. 35. R. Stavenhagen, Cultural Rights and Universal Human Rights , in A. Eide et al. (note 28), p.63.

36. The right to freedom of expression and information, for example, includes a right also to cultural expression, as well as to access and dissemination of such cultural expression. A. Eide Cultural Rights as Individual Human Rights , in A. Eide et al. (note 28), p.232. Another example is that of freedom of assembly and association.

Many cultural manifestations are conducted in association with others and/or may depend on the interaction with others.

37. See F.G. Jacobs, The Extension of the European Convention on Human Rights to Include Economic, Social and Cultural Rights , Human Rights Review, Vol.3, No.3 (1978), p.172.

38. A. Eide et al. (eds.) The Universal Declaration of Human Rights, A Commentary (Oslo: Scandinavian University Press, 1992) p.386.

39. For example the United States government position on economic rights is that they are simply goals or aspirations to be reached, which should be distinguished from real rights, namely, civil and political rights.

40. E.W. Vierdag, The Legal Nature of the Rights Granted by the International Covenant on Economic, Social and Cultural Rights , Netherlands Yearbook of International Law, Vol.9 (1978), p.73.

41. Importantly, this argument on enforceability rests purely on a distinction based not on the subject matter, but on the remedy. See N. Haysom, Constitutionalism, Majoritarian Democracy and Socio-Economic Rights , South African Journal on Human Rights, Vol.8 (1992), p.458.

42. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN doc. E/cn.4/1987/17, reprinted in Symposium The Implementation of the International Covenant of Economic, Social and Cultural Rights , in Human Rights Quarterly, Vol.9 (1987), p.121. These Principles are regarded as an authoritative guide to the interpretation of State Parties obligations under the Covenant on Economic, Social and Cultural Rights.

43. For instance, the European Court of Human Rights, which mainly deals with the protection of civil and political rights as provided for under the European Convention, has developed case-law which has dealt with aspects of economic, social and cultural rights and continues to stress the importance of these rights.

44. M. Scheinin, Economic and Social Rights As Legal Rights , in A. Eide et al. (note 28), p.44.

45. Ibid. The term other status may also be applied to economic, social and cultural rights. The right to housing, or at least some dimensions of this right, seems particularly suitable for receiving protection under these provisions. Other similar fields can be identified and elaborated on through the interpretation of treaty provisions on, for example, the right to life or the right to private and family life.

46. While the modes of ensuring the enforcement of international human rights obligations may fall short in terms of procedure, this should not be seen as a

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compromise on justiciability. See generally, M.K. Addo, The Justiciability of Economic, Social and Cultural Rights , Commonwealth Law Bulletin (1988), p.1426.

For instance, a good example is the very adoption of the International Covenant on Economic, Social and Cultural Rights by the United Nations General Assembly in 1966. As at the end of 2000, there were 142 state party ratifications to the ICESCR. See also, J. Carprizo, The Current Tendencies of Human Rights , California Western International Law Journal Vol.23, No.1 (1992), p.374.

Countries such as India, Germany, Portugal and Spain have given expression to the rising prominence of economic, social and cultural rights by including them in their constitutions. See note 41 above, p.451.

Mureinik adds that the real difficulty in the way of enforcing economic rights is not that they entail expenditure or call for a decision about how much to spend, but because they call for a decision about how to spend. He also points out that judges do often make decrees which entail massive spending without any regard to the budgetary consequences, particularly by way of enforcing first-generation rights. See E. Mureinik, Beyond a Charter of Luxuries: Economic Rights in the Constitution , South African Journal on Human Rights, Vol.8 (1992), p.465.

General Comment No. 4 (Sixth Session, 1991) The Right to Adequate Housing (Art. 11 (1) of the Covenant) UN Doc. E/1992/23, para. 18.

J.W. Nickel, Economic and Social Rights After Fifty Years , in APA Newsletters, Vol.97, No.2 (1998) accessed at http://www.udel.edu/apa/publications/texts/ newsletters/law/rights.html.

For an extended discussion of this claim, refer also to S. Holmes and C. Sunstein, The Cost of Rights (New York: W.W. Norton, 1999), pp.37 48. They state that all legally enforceable rights are necessarily positive rights and that rights are costly because remedies are costly and that personal liberty cannot be secured merely by limiting government interference. As such, all rights are claims to an affirmative governmental response.

See Davidson (note 4), p.42. Donnelly adds that the positive role of the state is no less central to many civil and political rights. He states, for example, that the effective implementation of rights to non-discrimination often requires extensive positive actions to realise the underlying value of equality and that even procedural rights such as due process entail considerable positive endeavours. See J. Donnelly, The Social Construction of International Human Rights , in T. Dunne and N.J. Wheeler (eds.), Human Rights in Global Politics (Cambridge: Cambridge University Press, 1999), p.87.

Airey case, Judgement of 9 October 1979, Series A. no.32, p.14, para. 26.

P. Alston and G. Quinn, The Nature and Scope of States Parties Obligations under the International Covenant on Economic, Social and Cultural Rights , Human Rights Quarterly, Vol.9, No.2 (1987), p.160. Mutua adds that during the Cold War, these rights were neglected by international organisations and Western governments in favour of civil and political rights, which as a result have a more fully developed practical content. See M. Mutua, Human Rights Ideology , University of Virginia International Law Journal, Vol.36 (1996), p.589.

See Vierdag (note 42), p.73. A point to note however is that these critics do not proceed to explain what they mean by legally definable .

Comment by R. Cassin in S. Morphet, Economic, Social and Cultural Rights: The Development of Governments Views, 1941 88 , in D.M. Hill and R. Beddard (eds.), Economic, Social and Culture Rights Progress and Achievement (New York: St. Martin s Press, 1992), p.75.

G.A. Mower, International Cooperation for Social Justice: Global and Regional

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Protection of Economic/Social Rights (Westport, Conn.: Greenwood Press, 1985) p.3.

59. The fact that the UDHR was adopted without any negative votes is important to take into consideration. The UDHR remains relevant and should be accepted as an eternal commitment of the common aspirations of the international community. See G. Alfredsson, The United Nations and Human Rights , International Journal of Legal Information, Vol.25 (1997), p.20.

60. See Davidson (note 4), p.39.

61. J. Hausermann, The Realisation and Implementation of Economic, Social and Cultural Rights , in Hill and Beddard (eds.), (note 57), p.49.