A Closer Look at Economic, Social, and Cultural Rights

Th e disadvantages of economic, social, and cultural rights compared to civil and political rights have begun to be redressed. For example, the Committee on Economic, Social and Cultural Rights has now issued 21 General Comments, which add considerable fl esh to the bare bones of the text of the ICESCR. Th us, the lack of pre- existing defi nitions of the rights is being overcome.

Progressive obligations

Th e principle of progressive implementation of the obligations in Article 2(1) of the ICESCR requires that States must move forward in terms of their ability to guarantee a particular ICESCR right. Th us, its performance with regard to an ICESCR right should be better rather than worse in fi ve years’ time:66 the expecta-tions of a State increase over time. Progressive realization can be monitored, for example via the ICESCR’s reporting procedures, through the use of indicators and benchmarks. Indicators comprise data, disaggregated on grounds such as race, sex, urban/rural divide, and socio- economic status, which helps to identify the actual performance of a State with regard to an ICESCR right. A benchmark is a goal set by the State to be achieved within a certain period of time: achievement of that benchmark is measured by indicators.67 For example, an indicator can reveal

64 Ibid, para 34.

65 Commission on Human Rights, ‘Realization of economic, social and cultural rights: Second progress report prepared by Mr Danilo Türk, Special Rapporteur’, UN doc. E/CN.4/Sub.2/1991/17 (18 July 1991) para 188; Commission on Human Rights, ‘Th e Realization of Economic, Social and Cultural Rights: Final report submitted by Mr Danilo Türk, Special Rapporteur’, UN doc. E/CN.4/

Sub.2/1992/16 (3 July 1992) para 192. See also Robertson, above n 54, 698–9.

66 UNGA, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt’, UN doc. A/61/338 (13 September 2006) para 55.

67 Commission on Human Rights, ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt’, UN doc. E/CN.4/2006/48 (3 March 2006) para 34.

disaggregated information about the number of births across a country attended by a doctor. A benchmark would relate to a specifi ed increase (for example, 50 per cent) in the percentage of such births across a certain time period (for example, three years). In setting benchmarks for progressive obligations, UN treaty bodies tend to defer to States parties, within reason, in determining reasonable and realis-tic targets.68 Indicators and benchmarks help a State to monitor its own progress, and also help to ensure accountability for a State under the ICESCR.69 States may be assisted in gathering the relevant data by international and civil society organi-zations. Furthermore, signifi cant progress is being made within the UN Offi ce of the High Commissioner for Human Rights in identifying appropriate human rights indicators, and how such indicators should be used and monitored by gov-ernments and the various UN treaty bodies.70

Given that progressive obligation implies that a State is continually moving for-ward in its implementation of ICESCR rights, there is a presumption that a State’s performance will not go backwards. Hence:

deliberately retrogressive measures . . . would require the most careful consideration and would need to be fully justifi ed 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.7¹

It is therefore possible for a State to take steps which are retrogressive in terms of the enjoyment of an ICESCR right, so long as such steps are justifi able in light of available resources (for example, a sudden economic crisis or catastrophic natural disaster) and the need to have regard to the overall implementation and enjoyment of the totality of ICESCR rights. A State however bears a heavy burden of proof in this regard, as indicated in General Comment 19, regarding retrogressive measures and the right to social security:

Th ere is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive meas-ures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justifi ed by reference to the totality of the rights provided for in the Covenant, in the context of the full 68 UN doc. E/2007/82, above n 62, para 54. Th ere are procedural requirements in setting such benchmarks. Eg, they should be established according to a participatory and inclusive process at the national level. Th erefore, a government cannot autocratically establish its own benchmarks.

69 ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt’, UN doc. E/CN.4/2006/48 (3 March 2006), above n 67, para 35.

70 See, eg, Offi ce of the High Commissioner for Human Rights, ‘Report on Indicators for Promoting and Monitoring the Implementation of Human Rights’, UN doc. HRI/MC/2008/3 (6 June 2008). Eg, indicators may measure structures (they indicate whether or not key structures and mechanisms are in place within a state—eg has the State ratifi ed a particular treaty?, has it adopted particular legislation?), procedures (monitoring the eff orts being made by governments—eg does the State have a process in place to provide doctors for deliveries of babies in all parts of the country?), and outcomes (measuring the results of programmes and policies—eg what is the rate of maternal mortality?): see E/2007/82, above n 62, para 51.

7¹ Committee on Economic, Social and Cultural Rights, ‘General Comment No. 3: Th e Nature of States Parties’ Obligations (Art. 2, Para. 1, of the Covenant)’, UN doc. E/1991/23 (14 December 1990) para 9.

use of the maximum available resources of the State party. Th e Committee will look care-fully at whether: (a) there was reasonable justifi cation for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of aff ected groups in exam-ining the proposed measures and alternatives; (d) the measures were directly or indirectly discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security;

and (f) whether there was an independent review of the measures at the national level.7²

Maximum available resources

Th e ICESCR explicitly recognizes that a State’s ability to fulfi l ICESCR obliga-tions, including the rate at which it progressively implements ICESCR rights, is subject to its available resources. Th erefore, more is expected in terms of perform-ance from richer States than from poorer States.7³ Financial resources are not the only resources of relevance to the ICESCR: there are also, for example, natural resources, human resources, information resources, and technological resources.74

One tool for assessing compliance with the obligation to use maximum avail-able resources is to analyse State budgets. As noted by the High Commissioner on Human Rights in a 2009 report:

Th e budget is a useful source of information to evaluate which normative commitments are taken seriously by the State, because it provides a demonstration of the State’s prefer-ences, priorities and trade- off s in spending. For example, low apportionments in health care, education or social programmes when there are visible implementation gaps could show inadequate prioritization or insuffi cient estimation of the required funds to realize economic, social and cultural rights.75

For example:

If a signifi cant percentage of the education budget is allocated to subsidizing private schools that cater for children from middle and high- income families compared with pub-lic schools serving low- income sectors of the population, the analysis would suggest that the Government’s priorities may not be in line with its international obligations.76

Budget analysis could also reveal ICESCR violations in the form of clear instances of underfunding when there is a blatant disconnect between allocations and policy objectives, discrimination if there are manifest disparities in funding for particu-lar groups or regions, and retrogression when there is a signifi cant lessening of

7² Committee on Economic, Social and Cultural Rights, ‘General Comment No. 19: Th e right to social security (art. 9)’, UN doc. E/C.12/GC/19 (4 February 2008) para 42.

7³ ‘Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt’, UN doc. A/61/338 (13 September 2006), above n 66, para 55.

74 See, generally, Robertson, above n 54.

75 UN Economic and Social Council, ‘Report of the High Commissioner for Human Rights on implementation of economic, social and cultural rights’, UN doc. E/2009/90 (8 June 2009) para 46, and, generally, paras 44–54.

76 Ibid, para 50.

funding for a particular programme in the face of ongoing need.77 Furthermore, budget analysis must also be compared with actual spending. Underspending in areas of need would be another indication that resources are not being utilized in accordance with ICESCR requirements.78

Immediate obligations under the ICESCR

Th e Committee on Economic, Social and Cultural Rights has found that States have certain immediate obligations under the ICESCR. First, steps must actu-ally be taken towards full realization of ICESCR rights immediately: a State is not entitled to do nothing or to regress. Rather, it must take ‘deliberate, concrete and targeted measures’.79 Secondly, Article 2(2) constitutes an immediate prohibi-tion on discriminaprohibi-tion in regard to the implementaprohibi-tion of ICESCR rights on the grounds of ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.80 Th irdly, certain ICESCR rights are, of their nature, capable of immediate implementation because they are not dependent on a State’s resources, such as the right to form and join trade unions in Article 8.8¹

Finally, an implicit presumptive immediate obligation has been uncovered:

States must guarantee a certain minimum core content of economic, social, and cultural rights unless they can prove that adequate resources are simply not avail-able for that purpose. In General Comment 3 on ‘Th e Nature of States Parties Obligations’, the Committee stated at paragraph 10:

[T]he Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Th us, for example, a State party in which any signifi cant number of individu-als is deprived of essential foodstuff s, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obli-gations under the Covenant. If the Covenant were to be read in such a way as not to estab-lish such a minimum core obligation, it would be largely deprived of its raison d’ être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps

‘to the maximum of its available resources’. In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every eff ort has been made to use all resources that are at its disposi-tion in an eff ort to satisfy, as a matter of priority, those minimum obligadisposi-tions.

Th erefore, all States parties have a presumptive obligation to immediately guaran-tee the minimum core content of each of the ICESCR rights. States bear a heavy

77 UN doc. E/2007/82, above n 62, para 65. 78 UN doc. E/2009/90, above n 75, para 54.

79 Ibid, para 14.

80 Committee on Economic Social and Cultural Rights, ‘General Comment 20: Discrimination in Economic, Social and Cultural Rights (art. 2, para. 2)’, UN doc. E/C.12/GC/20 (2 July 2009) para 7.

8¹ UN doc. E/2007/82, above n 62, para 16.

burden of proof in demonstrating that their lack of resources genuinely precludes such immediate implementation. Th e Committee’s views on the minimum core content of the various ICESCR rights is elucidated in various General Comments, some of which are referenced in later chapters.

Justiciability of ICESCR rights

One of the biggest perceived diff erences between the two sets of rights is that civil and political rights are justiciable, while economic, social, and cultural rights are not. Th eir non- justiciable nature followed from the vague obligation provision, which hampered fi ndings of violation, and the fl awed positive/negative dichotomy.

Civil and political rights have long been recognized as justiciable in a number of national courts, and may be the subject of individual complaints before the HRC under the Optional Protocol to the ICCPR. Th e existence of an individual com-plaints system under the ICCPR, and the absence of one under the ICESCR, has exacerbated the gap in normative material on the two sets of rights. While the HRC has decided over 1,500 cases,8² which have helped concretize the meaning of ICCPR rights, the Committee on Economic Social and Cultural Rights has decided none.

Th e notion of indivisibility has nevertheless been underscored in the case law on civil and political rights. Th e HRC has identifi ed numerous economic, social, and cultural rights issues that arise in the context of the ICCPR. For example, it has explicitly linked the right to life to the need for States to ‘take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics’.8³ Article 26 of the ICCPR, a broad guarantee against non- discrimination on various grounds such as race and sex, including the open- ended ground of ‘other status’,84 has been interpreted as guaranteeing non- discrimination in regard to all rights, including economic social and cultural rights.85 Th us, for example, discrimination in regard to the right to education on religious grounds in Canada (with Roman Catholics receiving fund-ing privileges which were not available to Jews and other minority religions) was found to breach Article 26 in Waldman v Canada.86 Hence, instances of discrimi-nation in relation to economic, social, and cultural rights have long been justiciable under the ICCPR.87

8² Th is number includes inadmissible cases, which can be instructive with regard to the norma-tive content of a right.

8³ Human Rights Committee, ‘General Comment 6: Th e right to life (art. 6)’ (Sixteenth session, 1982) (30 April 1982) para 5.

84 Sarah Joseph, Jenny Schultz, and Melissa Castan, Th e International Covenant on Civil and Political Rights: Cases, Materials, and Commentary, 2nd edn (Oxford University Press, Oxford, 2004) paras 23.20–23.30.

85 See, eg, Broeks v Netherlands, UN doc. CCPR/C/29/D/172/1984 (9 April 1987) (Human Rights Committee).

86 UN doc. CCPR/C/67/D/694/1996 (5 November 1999) (Human Rights Committee).

87 Distinctions are permissible if made on reasonable and objective grounds. See generally, Joseph, Schultz, and Castan, above n 84, paras 23.41–23.67.

Furthermore, economic, social, and cultural rights per se have now been made justiciable in a number of national jurisdictions, such as South Africa, India, and various Latin American countries.88 Th ey are also justiciable under the regional human rights systems.89

For example, Government of Republic of South Africa v Grootboom90 concerned the right to housing of a group that had been forced to squat on private land due to the appalling conditions in which they were living. Th e Constitutional Court of South Africa found that the government’s housing programme breached the right to housing as it contained no apparent relief for those, such as the Grootboom group, who had no roof over their heads and were living in intolerable crisis con-ditions. Th e government was not however required to immediately provide the Grootboom group with shelter. Rather, it was required to adopt reasonable meas-ures to make sure that persons in dire straits would have access to some form of shelter. Furthermore, the court left a wide latitude to the government in crafting the fi nal remedy: it did not dictate budgetary outlays for housing programmes.

Minister for Health v Treatment Action Campaign9¹ concerned a challenge, based on the right to health, to the restricted availability of nevirapine, a drug which restricted transmission of HIV- AIDS from mothers to babies (‘MTCT transmis-sion’) in South Africa. Again, the decision was based on the concept of reasonable-ness: the restrictions were not reasonable in the circumstances so the government was required to devise a plan to expedite the availability of nevirapine at public health care facilities throughout the country. Th is decision may seem alarming to those who are concerned that justiciable economic, social, and cultural rights will lead to court decisions which impact severely on national budgets. However, such decisions are hardly unknown: court interpretations of many laws, such as taxa-tion laws, can impact severely on government coff ers.9² Furthermore, several fac-tors underlined the unreasonable nature of the impugned restrictions in Treatment Action Campaign. Nevirapine was made available for free to South Africa by the patent- holder. Th e drug was eff ective, and did not entail a complex consump-tion regime, so counselling and educaconsump-tion of patients would not be onerous. Th e comparative health burden and associated costs entailed in not utilizing a proven method of combating MTCT transmission in South Africa would be enormous.

Finally, the government had already committed substantial funds to fi ghting HIV in South Africa.

Th e South African cases prove that the justiciability of economic, social, and cultural rights is workable. In fact, they utilize techniques that are far from alien to the judicial process by using reasonableness as the touchstone for assessing violations of such rights. Assessments of the reasonableness of administrative action are a key component, for example, in administrative law in common law countries. Indeed,

88 See generally, Malcolm Langford (ed), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, New York, 2008) Part 2.

89 Ibid, Part 3. 90 (2000) 11 BCLR 1169 (South Africa Constitutional Court).

9¹ (2002) 10 BCLR 1033 (South Africa Constitutional Court).

9² Paul Hunt, ‘Reclaiming Economic, Social and Cultural Rights’ (1993) 1 Waikato Law Review 141.

reasonableness is often the test used for identifying violations of measures which interfere with civil and political rights. Furthermore, it has long been accepted that violations of negative rights are identifi able and justiciable. Both Grootboom and Treatment Action Campaign confi rmed that positive obligations are also justiciable.

It is notable and perhaps ironic that many of the most sophisticated and infl u-ential decisions on economic, social, and cultural rights come from developing States, particularly from Africa and Latin America. Th is fact belies the presumed lesser abilities of poorer States to adequately address such rights.

In December 2008, the UN General Assembly adopted an Optional Protocol to ICESCR, which will provide for an individual complaints mechanism. Th at treaty will come into force when 10 States have ratifi ed it. Its entry into force will usher in a new era of justiciable global economic social and cultural rights. It too adopts a standard of ‘reasonableness’ (in Article 8(4)) as the touchstone for assess-ing whether a State has taken suffi cient steps in implementing a particular right, or whether it has violated a right. Article 8(4) also recognizes a margin of discretion for States by acknowledging that a ‘State Party may adopt a range of possible policy measures for the implementation of’ ICESCR rights.

It has been argued in a number of philosophical and political circles that

It has been argued in a number of philosophical and political circles that