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The Legality, Practicality and Justiciability of Economic and Social Rights

International Human Rights Law Research Paper by Charles Gimoh

Economic and Social Rights (ESR) are the socio-economic counterparts to Civil and Political rights (CPR) within the international human rights framework, and they carry equal legal force in international law. They have been described by Virginia Bras Gomes, Chair of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) as ‘the rights of everyday life for everyday people’. These rights are spelt out in the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), as well as in various thematic conventions relating to specific groups. However, they have been a subject of controversies, especially with regard to the validity of their claim as a juridical entity in the human rights regime. These disputations have been characteristically historical, intellectual and ideological.
The importance of this essay is underscored by the fact that some of the debates surrounding the legality, practicality and justiciability of economic and social rights still exist today. This paper seeks to demonstrate that economic and social rights are legal, practical and justiciable. It is an attempt to contribute to the debate by responding to three fundamental questions about social and economic rights. The first question has to do with the legality of social and economic rights; I argue that they are a legitimate category of human rights law evidenced by their recognition and protection in international, regional, and national legal jurisdictions. The second question revolves around the practicality of social and economic rights; I posit that the obligations they impose on states are practically satisfiable universally. The third question is on the justiciability of social and economic rights; I submit that they are justiciable.
We will discuss this topic under three main sections. The first segment, explores the representation of social and economic rights in international, regional and national legal jurisdictions. The next section, examines the practical issues to do with the implementation of social and economic in states. The final segment looks at some key questions relating to the legal enforcement of social and economic rights within domestic legal jurisdictions.

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The Legality of Economic and Social Rights
As stated above, the evolution of social and economic rights within the human rights system has been beset by controversies. There are historical, ideological and intellectual dimensions to these debates. We shall briefly examine these three elements, before setting forth a detailed outline specifying the legal recognition and protection of economic and social rights within the international, regional and national legal frameworks.
Historically, the argument revolves around the historical origins of social and economic rights. While David Shipman suggests that what was arguably semblances of social and economic rights date back to primordial times; Freeman counters the historical classification of ESR as second generation rights by submitting that ‘Medieval philosophers discussed the right of the needy to assistance from the rich’. Situating the origins of these rights a little closer, Fabian Klose argues, that the right to work and to subsistence, actually date back to the French Revolution. Significantly, Bill Bowring points out that as ‘binding legal documents, these made their first appearance in the West in 1919’. However, it is generally agreed that their current systematic composition and articulation in international law, is traceable to the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Economic, Social and Cultural Rights.
Intellectually, there have been debates as to whether these are human rights at all. Jeremy Bentham criticised the whole concept of rights, calling it ‘nonsense upon stilts’, and Maurice Cranston, while supporting civil and political rights, has argued against the validity of social and economic rights. Henry Shue, on the other hand, takes the now prevalent view that socio-economic rights are basic human rights, and are as fundamental as civil and political rights.
Ideologically, in the political battles of the Cold War, economic and social rights became one of the ideological pawns deployed by the major players as they contested for ideological supremacy on the global stage. While the Soviet socialist regime defended them, the capitalist West, led by the US, contended against their categorization as human rights, opting rather for the civil and political component. This ideological divide ultimately led to the enactment of two separate human rights covenants in 1966.
Criticisms against ESR as human rights would be hard to sustain when weighed against the current body of evidence in support of their legal status. This legality derives from their recognition and protection in various human rights instruments and legal systems.
Foremost, among these instruments, is the International Covenant on Economic, Social and Cultural Rights which together with the International Covenant on Civil and Political Rights (ICCPR) , the Optional Protocols, and the Universal Declaration of Human Rights (UDHR), make up the International Bill of Human Rights. The treaties encapsulated in this Bill, constitute five of the most significant legal instruments in international human rights law, covering a wide spectrum of rights ranging from socio-economic and cultural rights to civil and political rights. These extensively ratified treaties with multiplied state signatories are authoritative legal documents conferring these rights with the force of international law. Many of these laws have been incorporated into regional legal institutions, and domesticated within national judicial systems in various degrees, according them legal validity in regions and states. We will focus on economic and social rights and explore their legal recognition, protection and representation internationally, regionally, and nationally. Due to the expansive scope of these systems and space constraints, we will elaborate on a few features but give brief outlines on the others:
Economic and Social Rights within International Legal Framework
Internationally, the creation of the International Labour Organisation (ILO) in 1919 as a response by the Capitalist West to the spread of Socialism arising from the Russian revolution marked the introduction of economic and social rights into the international legal system. The ILO constitution of 1919 advocated some social and economic rights.
Since that seminal development, there has been a multiplication and proliferation of international binding and non-binding legal instruments protecting economic and social rights. They include:
Charter of the United Nations 1945: stipulates economic and social rights within its preamble and chapters such as IX and X.
Universal Declaration of Human Rights (UDHR) 1948: widely seen as the foundation of international human rights law. Articles 22 to 26 are on the rights to work, leisure, adequate standard of living, health and education.
International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966: the principal treaty for the protection of economic, social and cultural rights (ESCR). It was adopted in 1966 and came into force on January 3rd 1976.It is a legally binding document with 71 current signatories and 165 parties. These rights are based on equality and are also known as second generation rights, red rights, and positive rights. Article 6 of the treaty covers the right to work, Article 7 the right to favourable and just working conditions, Article 8 stipulates trade union rights, Article 9 the rights to social security and social insurance, Article 10 revolves around family rights, Article 11 covers the right to adequate standard of living including food, housing and clothing, Article 12 the right to the highest attainable standards of health, while Articles 13 and 14 stipulate the rights to education. The UN Committee on Economic, Social and Cultural Rights (CESCR) composed of 18 independent experts of various national extractions, is responsible for monitoring state compliance, setting standard by making General comments, and entertaining individual complaints from signatories to its Optional Protocol.
Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1981.
Convention on the Rights of the Child (CRC) 1989: this convention occupies the enviable position of being the most widely ratified human rights treaty in history. Somalia and South Sudan ratified it in 2015 leaving the US as the only state that is yet to ratify it. It has provisions covering child economic and social rights. Article 24 protects their right to health, Article 26 covers their right to social security, and Article 27 recognises their right to an adequate standard of living.
International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965.
Convention on the Rights of Persons with Disabilities (CRPD) 2006.
Though not exhaustive, this represents a broad outline of the legal representation of ESR at a global level.
Economic and Social Rights within Regional Legal Frameworks
Economic and social rights are also recognised and protected in varying degrees within the regional legal frameworks of Africa, Europe and the Americas, according them legality regionally.
Europe
The European Social Charter 1961 (ESC): Revised in 1996, together with its Additional Protocols, are creations of the Council of Europe. The ESC protects a host of social and economic rights such as the right to education, health, work, social care, and others .It also covers socio-economic rights of vulnerable groups.
The European Committee of Social Rights (ECSR) made up of 15 independent experts elected by the Committee of Ministers monitors compliance of state parties to the provisions of the charter through Collective Complaints and National Reports.
European Convention on Human Rights (ECHR) 1950: primarily concerned with CPR, but due to the over-lapping nature of some rights, like the right to family life, it offers some ESR protection.
The European Court of Human Rights (ECtHR) : principally for CPR but offers some indirect ESR protection.
America
Inter- American Human Rights System under the Organisation of American states (OAS) comprising 35 states. Structured somewhat like the UN with both a charter and a treaty based body. These are its instruments:
American Declaration of the Rights and Duties of Man 1948: Chapter One of the declaration recognises social and economic rights, including social security.
American Convention on Human Rights 1969: came into force in 1979 and created the Inter-American Court of Human Rights, it primarily protects civil and political rights, Article 2652 is on social and cultural rights.
Additional Protocol to the American convention on Human Rights in the Area of Economic, Social and Cultural Rights ”Protocol of San Salvador” 1988: came into force in 1999 and is the principal document on economic and social rights, ratified by 16 states, it recognises the right to food, health, education, and others.
Africa
The African system evolved on the initiative of the Organisation of African Unity (OAU) now African Union (AU).
African Charter on Human and People’s Rights (ACHPR) 1981: also known as Banjul Charter came into force in October 1986. It has significant unique features such as being a single charter covering both civil and political rights; it enumerates individual duties; and it includes ‘peoples’ rights. It covers various social and economic rights such as the rights to health, education, and work.
African Commission on Human and Peoples’ Rights: became operational in 1986.
African Court of Human and Peoples’ Rights 2004

 

Economic and Social Rights within National Legal Frameworks
Economic, social and cultural rights started getting legal recognition within the context of nations in the early part of the last century. Various socio-economic rights were incorporated into the national constitutions of Mexico in 1917; the Soviet Socialist Republic in 1918; and the Weimar Republic in 1918. A string of Latin American states, such as Brazil in 1937; Bolivia in 1938; and Cuba in 1940, subsequently followed in the steps of Mexico.
Currently, they have been absorbed into many national legal systems and accorded recognition and protection in varying degrees. 165 states are now party to the ICESCR, with 45 signatories and 22 parties to its Optional Protocol 63. While it is directly justiciable in some of these states, enforcement is carried out indirectly in many states. Some states with good constitutional provisions include South Africa, Kenya, Brazil, and Colombia; India, Ethiopia, Bangladesh, Ireland, and several other countries implement aspects through various means. Though not signed into UK law ‘the UK government has been giving effect to ICESCR through a combination of legislation and administrative measures’

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The Practicality of Social and Economic Rights
The ICESCR was adopted in the same year as the ICCPR. However, while its civil and political twin has gained widespread popularity, the former has not advanced with equal momentum. If human rights are interdependent, interrelated, inalienable, indivisible and universal, it logically follows that all human rights should be universally realisable and practically satisfiable to all people everywhere. In a world that is riddled with gross inequalities; in a world in which the richest eight people are now wealthier than the poorest 50%, the need for social and economic justice is urgent. The fundamental values of equality and dignity that these rights are meant to protect cannot be realised if the right conditions are not created to facilitate the fulfilment of these rights.
Accordingly, this section focusses on the practicality of social and economic rights. It is confined to an exploration of the practical conditions and considerations associated with satisfying them in both rich and poor countries.
A pivotal controversy surrounding economic and social rights is that they are resource intensive and therefore not practically possible for states, particularly poor countries to fulfil. Eric Posner argues that ‘There is no reason that this vision – the vision of institutionally enforced human rights – is appropriate for poor countries’. But Pizano counters this idea and contends that the aspirational ‘progressive realisation’ element means that poor states are able to work towards satisfying them.
In navigating around this contentious area, it is imperative to examine what the treaty says on these practical issues and the obligations they impose on states, with a view to determining an effective practical strategy of fulfilling these obligations within the limited constraints of state resources.
Practical Stipulations
The CESCR has stipulated practical steps that may be taken by states towards fulfilling these rights. While advocating immediate obligation, the General Comments enjoin states to use their maximum resources; work towards progressive realisation; ensure fulfilment of minimum core obligations; adopt various means including non- judicial processes; provide justiciable remedy; not derogate except when reasonably justifiable; and take steps within a reasonable time span to fulfil rights.
Practical Obligations
States are expected to fulfil obligations to do with the many rights covered by treaty laws. Practically, they would need to provide facilities such as educational infrastructure to satisfy the practical needs in that sector; health infrastructure to cover the rights to do with health; housing infrastructure to satisfy housing rights; welfare infrastructure to satisfy social welfare needs; and judicial infrastructure to facilitate justiciability. Satisfying these obligations is a daunting but by no means insurmountable task.
Practical Strategies for Satisfaction
Various strategies may be employed towards satisfying these obligations. Drawing from the afore-mentioned guidelines enumerated by the CESCR, as well as on the propositions advanced by some scholars, in addition to my own perspective, we may draw up two key strategies that may be deployed by any state towards satisfying the practical obligations of ESR. They are Resource Maximisation and Project Prioritization; and Contextual Relativisation and Systemic Reorganisation.
The principle of the Minimum Core is an ideal paradigm around which we could organise these pragmatic strategies. The minimum core obligation stipulates that state parties should satisfy at least the minimum essential levels of each of the rights in the ICESCR. This view is supported by the Limburg Principles which advocates the satisfaction of minimum subsistence rights for everyone by state parties.
We will examine each strategy briefly:
Resource Maximisation and Project Prioritisation: the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, stipulates that a state is in violation of the treaty if it does not devote the maximum of its resources towards satisfying these rights. Governments exist to promote and protect the interests, rights and wellbeing of their citizens. Significant social contract theorists dating back to Hobbes subscribe to this notion in one way or the other. It is therefore imperative for governments to prioritise providing ESR infrastructure and deploy their maximum available resources (MAR) in a manner that would ensure at worst the basic wellbeing of its citizens. MAR has been identified as government expenditure; government revenue; development assistance (both official development assistance and private resource flows); debt and deficit financing; and monetary policy and financial regulation. These should be organised and deployed towards realising ESR as a matter of priority. If they prioritise, both rich and poor nations can meet minimum core requirements and advance progressively towards fulfilling the other obligations. The case against many developing countries in terms of fulfilling economic and social rights is largely one to do with poor management of resources. Instead of prioritising infrastructural development, many poor African countries for instance, squander and mismanage resources due to inept and corrupt leaders, making it difficult to meet basic ESR obligations. Warren Binford relates this phenomenon to South Africa and her conclusion sums up the situation in many developing countries, ‘South Africa does have the resources that it needs to recognise and fulfil the right of every child in that country, but because of poor distribution of resources and mismanagement of the nation, that is the main reason that children’s rights are not being fulfilled today’.
Contextual Relativisation and Systemic Reorganisation: Tasioulas posits that contextual relativity involves taking the contextual variations between states into account. Here all states would be immediately required to meet universal minimum core obligations while making provisions for the peculiarities of their local context. Adequate housing in an African rural village is contextually different in standards when contextualized within a rich country like the UK. Many indigenous communities prefer herbal remedies to more modern forms of medicines. An approach like this could be co-opted into the general health system of a government. Governments in many less developed countries could develop cost-effective social welfare systems by structuring them along informal family lines and community networks, thus reducing the financial and administrative burden on governments. This would require re-thinking concepts such as development, modernity and well-being, as well as reorganising state machinery and systems to support local infrastructural innovations. For instance, systems would need to be developed for refining and repackaging local herbal medicines and dispensing them in hospitals; informal unpaid care system would need to be redefined and incorporated into a national plan; and so on. The implication of this is that resource poor states can actually satisfy these obligations with relatively smaller budgets through the application of innovative local strategies and remedies.
Cuba as a Case study
During a news conference on a recent visit to Cuba, UN special human rights rapporteur, Maria Grazia Giammarinaro commended the country on its social welfare system. The country is a good example of how states with limited resources can work towards providing conditions that would facilitate satisfying at least the minimum core demands of ICESCR. In spite of huge economic and political challenges, she has developed infrastructure to satisfy many of the practical social and economic rights of its citizens. Cuba provides free universal education at all levels; free health care under a robust health system with services comparable to what obtains in the developed world; social security; and social housing; . It has 100% youth literacy rate, 99.8% adult literacy rate, high life expectancy rate comparable to developed nations, and the world’s highest doctor to patient ratio with 67 doctors per 10,000 people
Why has Cuba been so successful in delivering social and economic rights to its people? It has developed programmes that are adapted to its unique context and peculiarities as a former socialist country. It has maximised available resources (including international cooperation with Russia, its main creditor) and prioritised projects ensuring that funds are channelled towards providing basic social infrastructure. It is worth mentioning that South Africa, one of the most forward-looking countries with reference to the implementation of economic and social rights drew some of its inspiration from Cuba.

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The Justiciability of Social and Economic Rights
In this final section before I conclude, I shall argue that ESR are justiciable. We will respond to key arguments against justiciability, and round off with some insight into how enforcement is done.
The question of whether social and economic rights should be enforceable in domestic courts is still current and contentious, as some states have refused to make them justiciable in spite of the definitive positive stance of international human rights law concerning this. There are three main arguments against justiciability.
The first argument is centred on the perceived differences between ESR and CPR. For instance, economic and social rights are said to be vague, positive and resource dependent, while their civil counterparts are apparently the opposite. Arguing against constitutionalising social and economic rights, Cass Sunstein sums this up in the following words ‘A chaotic catalogue of abstractions from the welfare state coexist with the traditional rights to religious liberty, free speech and so on ‘.
The second argument is that making them justiciable would erode the power of the executive and aggregate too much power on the judiciary. Aryeh Neier, advances this, contending that judicial enforcement of ESR is a fundamental intrusion into an area that is meant for democratic decisions.
The third argument is that they are difficult for courts to adjudicate on, as the issues involved are beyond the institutional competence of courts.
All of these contrary views have been countered by proponents of justiciability. Nolan, Porter and Langford, as well as a number of other scholars have argued against these positions. To the first argument which is built on the dichotomy between ESR and CPR, a major argument in support of the justiciciability of ESR, is premised on the established principles of the indivisibility, interdependence and inter- relatedness of first and second generation rights. On the positive and negative rights debate, Nolan et al have posited that both sets of rights exhibit positive and negative elements. On the matter of vagueness they have pointed out that some CPR, such as the rights to life, liberty, dignity, and privacy are also vague, while some economic and social rights in comparison are more precise. Resource dependent-wise, they have posited that some CPR, such as the cost of conducting elections, are as resource intensive as ESR costs. Economic and social rights are as fundamental as Civil and political rights which are generally justiciable in court. Making one of these rights justiciable and the other set unenforceable in courts, undermines the very essence of human rights. The now familiar and inescapable question is: what makes the right to free speech which a first generation civil rights country like America defends, more important than the right to food as enshrined in the international covenant? Of what value is free speech to a hungry, homeless, dying individual who has been deprived of his rights to food, housing and health care?

The questions of judicial encroachment on executive powers and the supposed incompetence of courts to adjudicate on ESR cases, have also been addressed in the same paper by Nolan et al. Also, the UN Committee on Economic and Social Rights has observed that courts generally already deal with cases involving resources, and putting ESR beyond the reach of courts negates the indivisibility principle of human rights.
On the categorical question of whether these rights can be litigated in courts, the UN is unambiguous and emphatic in affirming this necessity . Decisions of courts in countries from all regions of the world covering all economic, social and cultural rights demonstrate that these rights can be subject to judicial enforcement.
Adding my own voice to the argument, I assert that Economic and social rights are legal rights. As legal rights, there should be no questions as to their justiciability. Laws that are not enforceable are often questionable, largely unreliable, and arguably untenable, depending on how you look at them. Economic and social laws that are meant to protect human dignity and fundamental rights must not be devalued and relegated to the position of a questionable, unreliable and probably untenable legal quantity. The case for the universal justiciability of economic and social rights is therefore a non-negotiable imperative.
The case for justiciability has gained wide-spread acceptance and the momentum of its recognition is accelerating faster than ever. These rights are now justiciable to various extents in many countries. There are currently 45 signatories to the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights and it has been ratified by 22 state parties. Some countries such as South Africa have incorporated them into their national constitutions, while various countries including India are administering aspects of the rights in the form of Directive Principles. Countries like the UK which are still hesitant about implementing them directly, are implementing them indirectly through various legislative and administrative mechanisms as indicated above. In the light of these advances and developments, the case for universal justiciability can only get better.
Conclusion
In this paper, we have explored the legal basis of economic and social rights from international, regional and national perspectives. We have looked at the major international treaties covering the various ESR laws as well as the specific institutions that have been put in place for their operation. We have reflected on how these rights function in these systems and have advanced these manifestations as evidences of their legal recognition and protection in domestic, regional and international law.
We explored the practical issues to do with the realisation of ESR universally in both poor and rich countries and considered some principles and strategies that may be applied towards fulfilling the practical requirements of economic and social rights within these different national contexts. Using the economically challenged country of Cuba as a case study, we have established that even the poorest resourced-strapped countries can meet minimum core requirements stipulated by the Committee of Economic, Social and Cultural Rights.
We have also shown that economic and social rights are capable of being litigated in domestic courts. We have examined diverse ways this is being done in different domestic jurisdictions with the application of various legal mechanisms.
I have attempted to show that economic and social rights are legal, practical and justiciable. The arguments that have been advanced have been carefully selected to present a balanced and accurate picture of the situation. Based on this objective analysis, the weight of evidence is clearly in support of the views advanced in this paper that economic and social rights are a legitimate legal category in human rights law; that the obligations they impose on states are practically satisfiable; and that these rights are justiciable in domestic courts.

 

REFERENCES



Primary Sources

United Nations Treaties
Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13 (CEDAW)
Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC)
Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (CRPD)
International Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entered into force 4 January 1969) 660 UNTS 195 (ICERD)
International Bill of Human Rights (adopted 10 December 1948) A 217 (III)
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
International Covenant on Economic Social and Cultural Rights (adopted 16 December 1966 entered into force 23 March 1976) 999 UNTS 171 (ICESCR)
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)

Regional Treaties
Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ”Protocol of San Salvador” (came into force 16 November 1999)
African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986) (1982) 21 ILM 58 (African Charter)
American Convention on Human Rights (adopted 22 November 1969) (ACHR)
American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser L V/II.82 Doc 6 Rev 1 at 17 (1992)
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR)
Charter of the Organisation of American States (signed 30 April 1948, entered into force 13 December 1951)
European Social Charter (ESC)
European Social Charter (Revised)
OAU, Charter of the Organization of African Unity (established 25 May 1963)

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