1. Socio economic rights and socio economic development
Socio-economic rights and development are intertwining concepts. Both of them deal with basic service delivery, and they need resources for implementation. Both of them are concerned with the improvement of the individual’s life and the attainment of quality or standard life. Socio economic rights will supplement development activities since these rights empower vulnerable individuals and groups (such as orphans, the poor, refugees, rural women,prisoners) to litigate against a default government for the fulfilment of socio economic development. Development should be in line with regarding socio economic rights; for example extensive farming practices should consider other peoples’ right to housing. Even developmental policies of the government must be for socio economic rights or they must facilitate accessibility of the right both to a large number and to a wider range of people.[1]
2. Socio economic rights
(a) What are socio economic rights?
The economic, social and cultural rights are known as positive rights, which imply that positive action of the government is mandatory. This means that political will of the government for the realisation of these rights is necessitated. These rights require allocation of resources and provision of goods and service for citizens. Yet, the lack of resource is in most case used as pretext for the non-observance of these rights by states. Nevertheless, the state has the duty to take steps for the realisation of the rights.[2]
KarelVasak is credited for introducing division of bill of rights in three generations.Accordingly economic, social, and cultural rights categorised under second generation rights, whereas civil and political rights referred as first generation rights.[3] This division by itself has an impact on the neglecting of social, economic and cultural rights and or considering these rights as inferior rights to civil and political rights. In the worst perception socio economic rights consider as state programmes or policy not as independent rights.[4]This shows that the perception of states towards socio economic rights is different.
It has been advocate that socio economic rights as ‘security oriented’[5] rights due to the nature of these rights that is they are about the wellbeing and the survival of human being, as a newspaper quoted ‘If your life is struggling to survive…voting is not a priority…’.[6]Moreover, human rights are equal, indivisible, and interdependent thus the underestimate of socio economics rights is unacceptable in any way.
(b) Brief historical background of socio economic rights
There was disagreement between the two cold war blocs (the socialist and capitalism ideology proponents on the adoption of a human right document on economic and social rights. The disagreement lies since socio economic rights are superior to civil and political rights in terms of an appropriate value hierarchy, because socio economic rights are about basic necessity of human beings. For instance, what is the use of the right to free speech to those who are starving and illiterate? This means that socio economic rights should come first to satisfy the basic needs of human beings.
On the other hand, the then capitalist states stipulate that since socio economic rights undermines the enjoyment of individual freedom and distorts the functioning of free markets by justifying large scale state intervention in the economy.[7] This is because socio economic rights oblige the state to provide adequate resources for their realization throughavailable means.
Finally,ICESCR was adopted in the second world Conference on Human Rights in Vienna, 1966. It came into force in 1978. ICESCR has been signed and ratified by 160 states as of July 2011. In addition, six countries signed the convention but not ratified yet.
ICESCR has originated from different sources such as various religious traditions that preach to care for those in need and those who cannot look after themselves. Philosophical analysis and political theory of different authors such as Thomas Paine, Karl Marx, Immanuel Kant and Johan Rawls are other sources of ICESCR. Political programmes of the ninetieth century, which include Fabian Socialists in Britain, Social insurance schemes which were introduced by Chancellor Bismarck in Germany and the New Deal promoters in the United States can be cited as some of the sources from which ICESCR originates.
The Constitutions of Mexico (1917), Soviet Union and Weimar Republic (which is embodying the ‘wholfahrtsstaat’ concept) have been credited as focal points of ICESCR. Most importantly, the establishment of the International Labour Organization (ILO) in 1919 by treaty of Versailles is closely connected with ICESCR. ILO was established to implement objectives such as abolition of the injustice and hardship workers suffered and to guarantee fair and humane conditions of labour.[8]ILO adopted international minimum standard in relation to employment condition.[9]
ICESCR is a primary document for contained Socio economic rights, yet socio economic right provisions are also contained in:
The Universal Declaration on Human Rights,
The United Nations Convention on the Rights of the Child,
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
There are three documents that back up the implementation of ICESCR
at all levels whether it is in international, regional or local. These are:
Limburg Principles on The Implementation of the ICESCR, 1987
The Maastricht Guidelines build on the Limburg Principles, 1997
The General Assembly Standard Rules on Disability
Socio economic rights hold minimum core requirements from the government.The ‘minimum core content’ is an approach for socio economic rights and it implies the obligation expected from the government at a least standard for the respect, fulfilment and protection of socio economic even in inauspicious conditions.
At global level, state parties to the ICESCR are in duty to submit report in five years interval to the Committee on Economic and Social Rights regarding the realisation of these rights. At national level, socio economic rights are justiciable in few countries. This is because, for many governments, traditional legal remedies, such as court actions for socio economic rights are either inappropriate or at best impracticable.[10]
Civic societies become active for the proponent of socio economic rights and they are credited for bringing a socio economic right case (for example allegation of violation of environmental right)to court of law, on behalf of the people whose socio economic rights are violated by governmental or state organs.In 2008, state parties to the ICESCR made an agreement via Optional Protocol for allowing individual complaints concerning to violation of socio economic rights. Most interestingly, the comprehensive nature of human rights and the importance of socio economic rights are often associated with the famous four freedoms speech of the former US President FD Roosevelt to the Congress:
...a world founded upon four essential freedoms. The first is freedom of speech and expression....The second is freedom of every person to worship God in his own way....The third freedom is from want, which...means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants.... The fourth freedom is from fear, which translated into world terms means a world-wide reduction of armaments....[11]
(C)Key challenges for the realisation of socio economic rights
Socio economic rights are articulate in abstract and vague manner under international and domestic legislation, which can be referred as the first challenge for their definition and realization. Socio economic rights are not well defined in international and domestic literatures. There is also little attention render for these rights, when compared with civil and political rights. However, the General Comment, which is issued by the Committee on Economic, Social and Cultural Rights (CESCR) for specific socio economic rights is make an attempt to clarify the provision of ICESCR. Moreover, the findings of researches was done by human right activists and civic societies at large level cannot be gain saying for the clarification of socio economic rights. Once these rights are clear in terms of content and it will give leniency for the national judge for the enforcement of these rights. Even if the resources are inadequate the state is still has the obligation to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances. Besides, the state has the obligation of protecting the socio economic rights of vulnerable groups of the society even in the worst times (for example. if a state party experienced famine, war, earth quake). During famine, for instance, the state has the obligation to allocate foods that found in its ware house as the Union case[12] indicated.
The human rights literatures on socio economic rights repeatedly cite three obligations of the state; these obligations are the equally true for socio economic rights:
The obligation to respect- implies that any organ of state must render esteem socio economic rights. This obligation directs the state on what should not be done. The state should be a model for respect of socio economic before promoting others to do so.
The obligation to protect- referred about the positive obligation of the state from the infringement of socio economic rights. The state should uphold its shield to protect the violation of socio economic rights by one person against another person.
The obligation to fulfill- dictates the government to provide visible achievements on socio economic rights. The duty to fulfill is about the provision of the required resources for the realisation of socio economic rights. The right to health, for instance, will require the state to provide medications, medical professionals and institutions.
The full realisation or attainment of socio economic rights cannot be achieved overnight rather these rights will be realised in progressive manner.[13]It will take time for delivering services for targeted people. However, the state is expected to use available resources and its full capacity for the realisation of socio economic rights and the state has to make continuous improvements, which implies that the state should ensure that there are no regressive developments. In generic sense, the state cannot use the clause ‘progressive realisation’ as an excuse for neglecting the implementation socio economic rights.
There is also assistance from the international community so as to help the realisation of socio economic rights. According to article 2(1) of ICESCR there must be ‘international assistance and co-operation’. This is true especially for developing nations, which in most cases are unable to fulfil their people socio economic rights. Development assistance and the role of national and transnational civic societies have played crucial role for the realisation of socio economic rights. Furthermore, the cause and effect of underdevelopment has an impact on all countries: Poverty, hunger, war, famine, tyranny are the results of underdevelopment which all the international community should fight against collectively. In this regard regional and international human right instruments are crucial, for instance the Banjul Charter can be an initiative for reducing the abject poverty of Africa.[14]
(D) The justiciablity of socio economic rights
Justiciable refers to rights that can be brought to and enforced in a court of law.
Nearly all the constitution of the world states constituited socio economic rights provisions, they are not enforced in usual fashion and the recognition of these rights as justiciable is hardly accepted by all countries. In fact, this is mainly from the difference of the legislation policy from state to state.
In Ethiopia, for instance, it is the parliament that which decides what is justiciable or not. On the other hand, in South Africa it is up to the judiciary to decide the justiciablity of rights. The primary significance of justiciablity is that ones socio economic rights can be brought before the court where the court inevitably redress or legal remedy for the aggrieved party.A person, for instance,who evicted unlawfully from her farm land due the action of Multinational Corporation or a corrupted designated officer, can bring the case before the court to entitle compensation.
The three branches of the government have the responsibility to respect, fulfil and protect socio economic rights. The legislature is expected to incorporate international socio- economic rights to the national legal system. Besides, the executive must allocate adequate budget and also should promote the optimal use of the country’s resources so as to realize these rights. Most importantly, the judiciary is considered as the guarantor of socio economic rights in domestic level, thus it has the responsibility of applying international socio economic rights bills and standards[15], while it redress litigations at court of law.
In principle, resource allocation for a certain project is the function of the policymakers or it is the task of the political organs. This can be a reason for the perception of the courts that socio economic rights are non-justiciable. However, this is a wrong hypothesis due to the fact that human rights are indivisible and interrelated.It is, therefore, generally accepted norm is that civil and political rights are justiciable in almost all nations legal system implies that socio economic rights should get the same status. In addition, considering socio economic rights as non-justiciable rights gain saying the role of the courts for protecting the rights of the most disadvantaged sections of the society (for example the poor), whom only have the law as a shield for defending their socio economic rights from arbitrary violations.
The CESCR noted that even if the judges noted the importance of the ICESCR, the use of this Covenant is rarely applied in practical case. Yet, the judiciary branch of the government has international human right law obligation that they must respect the ICESCR. It also noted that national legislations should be interpreted in a broad sense so as to conform with the international human rights obligation of the state.
Furthermore, efficient and effective institutions at national level are significant for the full realisation and implementation of socio economic rights. In addition, international financial institutions such as the World Bank, International Monetary Fund (IMF) and the World Trade Organisation (WTO) has to in manner to supplement the endeavour of the full realisation of socio economic rights at national level while they promote their aid, development assistance and debt programmes.
[1]S Khoza The Link Between Development, and Social and Economic Rights: Are Socio-Economic Rights Developmental Rights? (2002) 12.
[2]G Vaibhav ‘Children’s Human Rights in Underdeveloped Country: A Study in Ethiopian Perspective’ (2009) 3 African Jof Political Science &Int Relations 142,155.
[3] Group rights (such as the right to self-determination, the right of indigenous peoples) are categorised under third generation rights.
[4]R Tsegaye ‘Making Legal Sense of Human Rights: The Judicial Role in Protecting Human Rights in Ethiopia’ (2009) 3 Mizan LR 289,305.
[5]Action Professionals’Association for Peoples (APAP) Baseline Survey Report on APAP’S Intervention in Areas of Human Rights (2001) 21.
[6]‘Debate over Socio Economic Rights’ The Guardian, 25 April 2000.
[7]JS Henry&AN Philip International Human Rights in Context: Law, Politics and Morals 2nded Oxford University Press (2007) 241.
[8]Ibid 242.
[9] The minimum standards of employment condition includes freedom of association; the right to organize trade unions, forced labour, minimum working age and house of work, weekly rest, sickness protection, accident insurance, invalidity and old age insurance and freedom from discrimination in employment.
[10]Henry& Philip (note 19 above)275.
[11]Juta Speeches that changes the world (2008) 59.
[12]PUCL v Union of India and others (Writ Petition [Civil] No. 196 of 2001) 124.
[13]Article 2(1) of the ICESCR 1966.
[14]BA Yitay The African Human and Peoples’ Rights Charter as a Means of Poverty Reduction in Africa. A Dissertation Submitted in Partial Fulfillment of Bachelor degree in law (LLB) Mekelle University Mekelle, Ethiopia (2007) 71.
[15] In fact, the ratification of international treaties is comes first before the judiciary apply these international human rights instruments (including socio economic rights).
