Seminar 5/6 - Economic and Social Rights Flashcards
(27 cards)
Three generations of rights
1) Civil and Political rights
2) Social/economic/cultural rights
3) Collective rights
Is it helpful looking at HR within three generations?
CP were first then expanded but the newer ones should be held with just as importance. It implies each generation is more advanced than the last, which would mean that social rights always lose out. There is always less of a focus on social and economic rights.
Majority of HR activism is based on CP rights, and then cutting edge doctrinal is based on collective rights.
It is the third world within rights.
Although the framing is established there is no implementation mechanism attached to them.
Landau - Claims that some see no difference between the rights
Is the generational idea compatible with Interdependence and indivisibility of HR?
Vienna Declaration. Core social rights tend to link to CP rights as well such as right to life, right to food, right to health. You can’t cherry pick the best, you must always be covering the full range. If you don’t protect them all then you aren’t really protecting them.
There is a equal dignity behind them all. Each human deserves equal respect/concern. HR violations mean that this is not being respected. They are used to fight patterns of inequality and power balances as they relate to patterns of disempowerment. If only choose some to protect then this disempowerment will manifest in another way. Enslaved black people, Civil rights
If so indivisible then why two convents.
They are different but all equally important? Does not necessarily translate into the actual application of them
Künnemann - All rights are indivisible as relate to human dignity
Main legislation - ICESCR
Multiple different rights held within it but they can be broken down into certain groups of Economic, Social and Cultural rights:
Economic - In order to live fulfilling life in society then need fair chance to be employed. Pride comes from it. Right to work, right to just and favourable conditions of work, right to form trade unions and right to strike (Equality comes from working and earning money, idea that the rest will then take care of itself)
Social - Fulfilling life, it’s partly about protecting from others. There are material conditions to fulfiling life such as access to healthcare, shelter, food. Education is about the skills needed to take part in society.
Life - Adequate standard of living, physical and mental health, education
There is a focus on core social rights about four education, health, food and housing.
Covenants are different?
ICCPR - Absolute, Immediate. (Nope most are qualified)
Of Legal Nature - Easier to pin point liability
Duty to Abstain
Free?
Negative Obligations
ICESCR - Programmatic, Gradually realisable
Of political nature - Harder to pinpoint liability, multiple issues
Duty to Intervene
Costly
Positive Obligations
These basic definitions are not entirely accurate though. Both can cost or be free, and have a mixture of positive and negative obligations. The pace will be determined by resources.
Initially it seems as though it makes sense, but under criticism it doesn’t.
Right to participate in public affairs someone needs to ensure balance etc, some countries struggle to pay for elections.
There is a mixture of negative and positive obligations within every right.
Why don’t they use legal nature, but political?
Britain has history of class society, which concerns all core social rights. They built welfare state, which was done via political fight of trade unions. Yet, this is tied to a certain period of time as trade unions don’t have the same pressure. Other countries also do not have the same dyamnic which means the pressure may not occur.
The underlying right protected by human rights is dignity. It addresses issues which relate to disempowerment via institutions in countries which may be lacking.
The explicit nature of them puts more pressure on states to make a positive impact rather than brooding ICCPR ones.
Relationality and subsidiarity
Violations of ESC rights happens due to the context of social relations. There is an element that is it the state that need to provide adequate ways in which to provide for these rights. There is some individual responsibility in this matter though as there should be some reasonableness for them to sort the matter themselves. They shouldn’t thwart efforts to feed themselves, access to house market which is regulated etc. Need to step in such as natural disaster.
How ICESCR is upheld once signed to
There is emerging individual complaints procedure. There is also submitting of periodic reports to ECOSOC.
State obligations in ICESCR
Really there must be a plan and you have to be working on it. This means there is no time limit, it can be all you can afford in that moment. In comparison ICCPR must be respected from day 1.
General obligation to achieve progressive but specific obligations. Doesn’t make much of a difference here, restriction clause.
Robertson - Progressive realisation cannot be used as a measuring tool without clarifying what maximum (ideal) of available (reality) resources means.
Framework of Human Rights Obligations for all rights
Shue scheme -
To avoid depriving (Do not take away what they already have, Turkmenistan took away STD clinics)
To protect from depriving (Enforcing duties, designing institutions that avoid the creation of strong incentives to violate duty. Regulating Pharmacy, qualificationsThird part interference)
To aid the deprived - Helping those who can’t pay, victims of natural disasters, social failures
Evolving doctrine around HR obligations
Shue
Eide - Obligation to respect
Obligation to protect
Obligation to fulfil
van Hoof - Respect, protect, ensure and promote
Then Maastricht Guidelines endorsing Eide’s Scheme
Obligation spectrum?
Obligations can be negative and positive, there is a range. Every single right has this. May be some truth that ESC rights have general obligation spectrum emphasising fulfilment-bound obligations but CP is about respect-bound obligations.
Justiciability
This can be seen at two levels.
National level - Debate revolves around constitutional entrenchment and judicial review of the implementation economic and social rights. Should they be constitutional?
International level - Debate revolves around feasibility and justifiability of a complaints mechanism operated by the CESCR. Most countries do not allow for complaints mechanism around it.
Effective international mechanism can only work if there is effective domestic mechanisms of justifiability as well.
Objections to justifiability
Legitimacy Objection - If you make them justiciable then they can interfere in policy affairs and undermine politics. Judges changing where the government put money. It should be left to democratic bodies.
Competence objection - Judges lack the expertise to deal with complex socio-economic dispute that raise issues of resource allocation.
Courts were created to deal with bipolar issues, not multipolar.
Democratic legitimacy?
Fredman - Three aspects are Accountability - Elected representatives have the duty to explain actions to electorate, court can play powerful role in enforcing positive duties without undermining democracy
Participation - Rights based claims are based on the ability of the parties to convince the court of the soundness of their claim
Equality - Judicial review can make it possible for representative democracy to function.
Whilst Judges should not get involved in democratic process, but sometimes they need to Brown v Board of Education only step left was the court. Called down segregation of schools.
Justiciability as a concept
It is broad and fluid, there can be development of new models of juridical or quasi-judicial review.
Minimum core obligations
CESCR General Comment 3 - On the basis of examination that each state signed to it must at least have minimum essential levels of each right. This is so that states cannot use the taking steps as an excuse not to provide this. However where do you draw the line.
Debate over minimum core
Grootboom v Government of Republic of South Africa - Right to housing, squatting on private land but owner wanted to develop it and they would have nowhere to go. Dealt with minimum core of it the government should provide roof over their heads. Court held that they should deal with it as minimum responsibility was theirs.
Tushnet - This is a weak form of review, as allow judges to enforce rights without looking at the complex socio-economic issue. Some have also said it does nothing
Mazibuko v City of Johannesburg - Access to water, minimal provision for clean water. They look at reasonableness of the policy, which they can transform into a tool to make them justiciable. Ray - Suggested using experimental method
Chapman - Core obligations need to be measurable and have a value, and they should be monitored by violation approach. (Failure to fulfil minimum, discrimination, actions/policies from government)
What are the three main elements of judicial review `
1) Judicial approach to interpretation
2) Degree of scrutiny of the government’s action
3) Remedy ordered
Typology of review
Young -
Deferential review - Elected branches have more authority so you have to defer to them as long as they are reasonable. Nudge towards better policy making, the impact by the court is minimal. (Forcing governments to talk about HIV case) Robertson - This is preferred as it stays within judicial boundaries, allows states to change policies and be evaluated instead of accused.
Conversational review - Interbranch dialogue, even of the court rules something as unconstitutional then government can still implement it. Final say is still with elected branches.
Government can ignore these two
Experimentalist review (theory) - Judges can handle bipolar disputes, but not multiple. Bring in all the stakeholders and then try to get them to agree and the judge would merely stamp it with approval. Yet not easy to identify all the stakeholders, and everyone may disagree. More of a democratic political issue
Managerial review - India has social rights under policy but the court have developed how to protect them. Mechanism to improve rights, but a wave of litigation may not improve but rather cause political tension and may not be completed. Assuming direct responsibility for supervision
Peremptory review - Court work is specific remedy. If someone can’t get surgery in one place then go somewhere else and government pay. This is when policies are second guessed Jewish school illegitimate.
One of these models should work everywhere even deferential.
How useful is the optional protocol?
It is optional so only a few states have entered into it. There is a complaints mechanism but periodic state reports are also important.
ICESCR complaints legislation
Optional Protocol to ICESCR - Art 1(1) If you become party then you recognise the competence of the Committee to receive and consider communications as provided for by the provisions
Art 2 - Communications can be submitted by or on behalf of individuals to groups under jurisdiction of state party claiming to be victims due to anything within convention.
Art 3 - They can consult relevant documentation emanating from other UN bodies etc
Art 4 - Committee will consider reasonableness of the steps taken by state
Only a few cases, which are
IDG v Spain - Woman’s house was going to be auctioned off as she defaulted on mortgage. In her picking up the notice so late she did not have time to amount a proper defence. They violated her Art 11 right (Adequate housing)
Lopez Rodriguez v Spain - Benefit was cut while in prison, and it was found not to have violated his Art 2 and 9 rights under Covenant. They reduced it as his upkeep in prison should be treated as part of income
FIDH v France - Complaint was lodged against reforms that made it harder for large number of adults and children with insufficient resources of the right medical assistance. (Article 13 right to social and medical assistance + Article 17 right of children and young persons to social, legal and economic protection) Can’t disallow illegal immigrants medical care.
SA Minister of Health v Treatment Action Campaign and others - Restricted use of HIV drugs, which affected a lot of people. Ruled in favour of them and held that government needed to set up more hospitals etc.
Poverty
Mary Robinson - Most serious form of HR violation is extreme poverty
1) Income poverty
2) Social service poverty
3) Environmental poverty
Poverty and ICESCR - In light of International Bill of Rights, poverty may be defined as a human condition characterised by sustained or chronic deprivation of the resources for an adequate standard of living.
Common theme is powerlessness in poverty, HR is to combat this. Anti-poverty policies are more likely to be effective if they are based on IHR
Poverty and the International Covenant - 1948 UDHR declared poverty as HR issue and it constitutes a denial of HR. It happens everywhere.
