Slide 1 : www.cohre.org Economic, Social and Cultural Rights A Primer on Justiciability of ESC Rights
© Bret Thiele 2010
Myths About the Justiciability of ESC Rights : www.cohre.org Myths About the Justiciability of ESC Rights “Capacity Myth”
“Legitimacy Myth”
“Capacity Myth” : www.cohre.org “Capacity Myth” “Too Vague”
Issue: Court’s ability or willingness?
Actually, similar to Civil and Political Rights
General Comments
Housing, Food, Health, Education, Water
Jurisprudence
ICESCR, Other T.M.B., Regional, National
“Legitimacy Myth” : www.cohre.org “Legitimacy Myth” “Separation of Powers”
Resource Allocation
“Rights” = Obligations and Remedies
Legal Obligations : www.cohre.org Legal Obligations Article 2(1) of the ICESCR states:
“Each State Party to the present Covenant undertakes 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.”
Legal Obligations : www.cohre.org Legal Obligations General Comment No. 3 of the UN Committee on ESC Rights on the nature of States parties obligations provides some guidance as to how to interpret these legal obligations.
Legal Obligations: General Comment No. 3 : www.cohre.org Legal Obligations: General Comment No. 3 process standards (e.g., due process in cases of interferences with the rights, participation, presumption against deliberatively retrogressive measures, non-discrimination);
conduct standards (e.g., adoption of legislation and action plans, adequate allocation of financial and technical resources and the establishment of monitoring and accountability institutions); and
result standards (e.g., immediate realisation of some aspects of the right and progressive realisation of the full rights consistent with the rights to equality and non-discrimination).
Legal Obligations: “To Take Steps” : www.cohre.org Legal Obligations: “To Take Steps” While the full realization of the relevant rights [under the Covenant] may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant’s entry into force for the States concerned.
Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.
Legal Obligations: “Maximum Available Resources” : www.cohre.org Legal Obligations: “Maximum Available Resources” In it’s General Comment No. 3 the Committee on ESC Rights noted that the phrase “to the maximum of its available resources” was intended to refer to both the resources existing within a State and those available from the international community through international cooperation and assistance.
The Committee also emphasized that in accordance with Articles 55 and 56 of the United Nations’ Charter, with well-established principles of international law, and with the provisions of the Covenant itself, international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.
Legal Obligations: “Achieve Progressively” : www.cohre.org Legal Obligations: “Achieve Progressively” The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time.
Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.
Legal Obligations: “Achieve Progressively” : www.cohre.org Legal Obligations: “Achieve Progressively” The phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.
Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.
Legal Obligations: “By All Appropriate Means” : www.cohre.org Legal Obligations: “By All Appropriate Means” The Committee recognizes that in many instances legislation is highly desirable and in some cases may even be indispensable.
Yet, the adoption of legislative measures, as specifically foreseen by the Covenant, is by no means exhaustive of the obligations of States parties.
Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to rights which may … be considered justiciable. The Committee noted, for example, that the enjoyment of the rights recognized, without discrimination, will often be appropriately promoted, in part, through the provision of judicial or other effective remedies.
Legal Obligations: “By All Appropriate Means” : www.cohre.org Legal Obligations: “By All Appropriate Means” Other measures which may also be considered “appropriate” for the purposes of Article 2 (1) include, but are not limited to, administrative, financial, educational and social measures.
In terms of political and economic systems the Covenant is neutral and its principles cannot accurately be described as being predicated exclusively upon the need for, or the desirability of a socialist or a capitalist system, or a mixed, centrally planned, or laisser-faire economy, or upon any other particular approach.
General Comment No. 9 : www.cohre.org General Comment No. 9 General Comment 9, of the UN Committee on Economic, Social and Cultural Rights offers important guidance on the application of the Covenant in national courts.
It argues that remedies do not have to be judicial in nature (e.g., Administrative remedies can be effective) but says that judicial remedies are necessary whenever a Covenant right cannot be made fully effective without some role for the judiciary.
There is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions.
General Comment No. 9 : www.cohre.org General Comment No. 9 Courts are generally already involved in a considerable range of matters which have important resource implications. The adoption of a rigid classification of economic, social and cultural rights which puts them, by definition, beyond the reach of the courts would thus be arbitrary and incompatible with the principle that the two sets of human rights are indivisible and interdependent.
When Governments are involved in court proceedings, they should promote interpretations of domestic laws, which can give effect to their Covenant obligations… It is especially important to avoid any a priori assumption that the norms should be considered to be non-self-executing. In fact, many of them are stated in terms, which are at least as clear and specific as those in other human rights treaties, the provisions of which are regularly deemed by courts to be self-executing.
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Respect
Protect
Fulfill
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Respect
Essentially Negative Obligation
Government Must Refrain
Including Interfering with Rights
Immediate Effect
Not subject to “progressive realization” or “maximum available resources)
Readily Justiciable
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Protect
Non-State Actors
Regulatory Schemes, Criminal Law
Some resources, but no different then C&P Rights
Immediate Effect
Readily Justiciable
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Fulfill
Inform
Provide
Subject to Progressive Realization and Max. Available Resources
However, still justiciable components
South Africa (housing)
Argentina (health)
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Fulfill
Grootboom case (South Africa)
Declaratory Order: It is a right
Reasonableness Standard
Reasonable Plan of Action
Devote Reasonable Resources
Leaving out a large segment of the population in inherently unreasonable
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Fulfill
Treatment Action Campaign (TAC)
Finding of Fact: Sufficient Resources
Order: Provide Nevirapine with delay to hospitals and victims
Implementation:
Grootboom cf. TAC: Social Movement!
Three General Legal Obligations : www.cohre.org Three General Legal Obligations Fulfill
Viceconte
Virus causing death
30% mortanlity rate
Specific region
Constitutional Authority
H: Individual Standing to enforce ESC Rights
H: Gov’t legally obligated to intervene to provide health care to individuals when private sector fails.
Remedies: Declaratory Order and Retain Supervisory Jurisdiction
Three General Approaches to Litigating ESC Rights : www.cohre.org Three General Approaches to Litigating ESC Rights Indirect
Discrimination
Art. 26 of the ICCPR
Broadly Interpreted
Disability, Sexual Orientation, Age
Netherlands
Kenya (Con. Obs. and forced evictions)
Three General Approaches to Litigating ESC Rights : www.cohre.org Three General Approaches to Litigating ESC Rights Integrated
ESC Rights Dimensions of Civil & Pol Rights
India (Right to Life cases)
Kenya (forced evictions)
CAT and Yugoslavia case
Hajrizi Dzemajl et al. v. Yugoslavia
Communication No 161/2000 : Yugoslavia. 02/12/2002
CAT/C/29/D/161/2000. (Jurisprudence)
Three General Approaches to Litigating ESC Rights : www.cohre.org Three General Approaches to Litigating ESC Rights Integrated
ESC Rights Dimensions of Civil & Political Rights
India (Right to Life cases) “Directive Principles”
Ram Prasad v. Chairman, Bombay Port Trust (AIR 89, SC 1306) (in which the Indian Supreme Court directed the relevant public authorities not to evict 50 slum dweller families unless alternative sites were provided for them).
Olga Tellis v. Bombay Municipal Corporation (1985, 3 SCC 545) (in which the Indian Supreme Court held that forced eviction would result in a deprivation of the ability to earn a livelihood. The Court further noted that the ability to earn a livelihood was essential to life and thus the forced evictions would result in a violation of the right to life as embodied in Article 21 of the Indian Constitution).
Francis Coralie v. Union Territory of Delhi (AIR 1981, SC 746) (in which, building upon Maneka Gandi, the Indian Supreme Court stated that the right to life includes the right to live with human dignity and all that goes along with it, namely the bear necessities of life such as adequate nutrition, clothing, and shelter).
Maneka Gandi v. Union of India (1978, 1SCC 248) (a seminal case in which the Indian Supreme Court stated that the right to life provisions in the Constitution must be taken to mean ‘the right to live with dignity’).
Three General Approaches to Litigating ESC Rights : www.cohre.org Three General Approaches to Litigating ESC Rights Direct
South Africa (housing)
Argentina (health)
Three General Approaches to Litigating ESC Rights : www.cohre.org Three General Approaches to Litigating ESC Rights All rely on ICESCR and other international human rights law including General Comments and Regional Instruments
Other Treaties: ICERD : www.cohre.org Other Treaties: ICERD Under Article 5 of CERD, States parties agree to “… prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … (e) economic, social and cultural rights.”
According to Article 1(1) of CERD, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.