Economic, social and cultural rights

"Social rights" redirects here. For another sense, see Social rights (social contract theory).

Economic, social and cultural rights are socio-economic human rights, such as the right to education, right to housing, right to adequate standard of living, right to health and the right to science and culture. Economic, social and cultural rights are recognised and protected in international and regional human rights instruments. Member states have a legal obligation to respect, protect and fulfil economic, social and cultural rights and are expected to take "progressive action" towards their fulfilment.

The Universal Declaration on Human Rights recognises a number of economic, social and cultural rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR) is the primary international legal source of economic, social and cultural rights. The Convention on the Rights of the Child and the Convention on the Elimination of All Forms of Discrimination Against Women recognises and protects many of the economic, social and cultural rights recognised in the ICESCR in relation to children and women. The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of racial or ethnic origin in relation to a number of economic, social and cultural rights. The Convention on the Rights of Persons with Disabilities also prohibits all discrimination on the basis of the disability including refusal of the reasonable accommodation relating to full enjoyment of economic, social and cultural rights.

International and regional human rights instruments

Economic, social and cultural rights are recognized and protected in a number of international and regional human rights instruments.[1]

International human rights instruments

The Universal Declaration on Human Rights (UDHR), adopted by the UN General Assembly in 1948, is one of the most important sources of economic, social and cultural rights. It recognizes the right to social security in Article 22, the right to work in Article 23, the right to rest and leisure in Article 24, the right to an adequate standard of living in Article 25, the right to education in Article 26, and the right to benefits of science and culture in Article 27.[2]

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the primary international legal source of economic, social and cultural rights. The Covenant recognized and protects the right to work and to just and favorable working conditions in Article 6 and 7, the right to join trade unions and take collective labor action in Article 8, the right to social security in Article 9, the right to protection of the family, including protection for mothers and children, in Article 10, the right to an adequate standard of living, including the right to food and the right to housing, in Article 11, the right to health in Article 12, the right to education in Article 13, as well as the right to participate in cultural life and the right to benefits of science and culture in Article 15. The International Covenant on Civil and Political Rights, adopted at the same time as the ICESCR, recognizes and protects a number of core economic, social and cultural rights, including the right to join trade unions in Article 22, and the right of ethnic, religious or linguistic minorities to engage in their culture, practice their religion and use their language in Article 27.[3]

A number of other major international human rights instruments contain provisions relating to economic, social and cultural rights. The Convention on the Rights of the Child recognizes and protects many of the economic, social and cultural rights recognized in the ICESCR in relation to children. Including the right to health in Article 24, the right to social security in Article 25, the right to an adequate standard of living in Article 27, the right to education in Article 28, and the right to protection from economic exploitation (see child labour) in Article 32.[4] The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of racial or ethnic origin in relation to a number of economic, social and cultural rights. The Convention on the Elimination of All Forms of Discrimination Against Women affirms a range of economic, social and cultural rights to women. The ILO Conventions of the International Labour Organisation (ILO) protect a range of work related economic, social and cultural rights.[5]

Regional human rights instruments

The African Charter on Human and Peoples' Rights protects the right to work in Article 15, the right to health in Article 16, and the right to education in Article 17. The European Social Charter protects a wide range of economic, social and cultural rights, including the right to work, to favourable working conditions, the right to join trade unions and to take collective labour action in Article 1 to 10, the right to health in Article 11, the right to social security, including the right to medical assistance and the right to social welfare services, in Article 12 to 14, protection of especially vulnerable groups are enshrined in Article 15 to 17 and 19, and right to housing in Article 31. The Protocol of San Salvador protects a range of economic, social and cultural rights within the Inter-American human rights system.[6]

Secondary legal sources

A range of secondary legal sources exist on economic, social and cultural rights which provide guidance on their normative definition. An important secondary legal source is the United Nations Committee on Economic, Social and Cultural Rights which is overseeing the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee has been central in developing the normative definition of key economic, social and cultural rights, interpreting the role of State Parties to the ICESCR, and monitoring protection and violation of the ICESCR rights. The Committee issues guiding pronouncements in the form of general comments, and other human rights treaty bodies may also issue comments relevant to economic, social and cultural rights.[7]

Other important secondary legal sources on economic, social and cultural rights are the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights 1987 and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 1997. The Limburg Principles have been extensively used in national legal systems as an interpretive tool for establishing violations of economic, social and cultural rights. The Maastricht Guidelines build on the Limburg Principles and identify the legal implications of acts and omissions which are violations of economic, social and cultural rights.[8] Various United Nations Special Rapporteurs have influenced the normative development of economic, social and cultural rights. Appointed by the Commission on Human Rights and its sub-commissions, key rapporteurs include the Special Rapporteur on the Realization of Economic, Social and Cultural Rights, the Special Rapporteur on the Right to Adequate Housing, the Special Rapporteur on the Right to Education, and the Special Rapporteur on Violence Against Women.[9]

National constitutions

A number of national constitutions recognize economic, social and cultural rights. For example, the 1996 Constitution of South Africa includes economic, social and cultural rights and the South African Constitutional Court has heard claims under these obligations (see Grootboom and Treatment Action Campaign cases). India's constitution, which does not explicitly recognize economic and social rights in their constitution, has nonetheless found that these rights exist, though unenumerated, inferable from the right to life.

State responsibility

Economic, social and cultural right enshrined in international and regional human rights instruments are legally binding. Member states have a legal obligation to respect, protect and fulfil these rights. The exact nature of states' obligations in this respect has been established principally in relation to the International Covenant on Economic, Social and Cultural Rights (ICESCR),[10] and further Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has been established in accordance with Vienna Declaration and Programme of Action[11]

State parties to the ICESCR are required to take "progressive action" towards fulfilment of the ICESR rights. While immediate fulfilment may not be possible due to the economic situation of a country, postponement of proactive action is not permitted. State parties must show genuine efforts to secure the economic, social and cultural rights enshrined in the ICESCR. The burden of proof for progressive action is considered on be with the state party. The prohibition on discrimination in relation to economic, social and cultural rights is regarded as having immediate effect. State parties must abolish laws, policies and practices which effect the equal enjoyment of economic, social and cultural rights and take action to prevent discrimination in public life. All state parties, regardless of the economic situation in the country or resource scarcity, are required to ensure respect for minimum subsistence rights for all. State parties must also ensure that available resources are accessed and used equitably. Therefore government decisions on how to allocate resources should be subject to scrutiny. Legislative measures alone are not sufficient to ensure compliance with the ICESCR and state parties are expected to provide judicial remedies in addition to taking administrative, financial, educational and social measures.[12]

Monitoring, enforcement and implementation framework

Intergovernmental organisations and non-governmental organisations (NGOs) have persistently neglected economic, social and cultural rights over the past 50 years. While all human rights are said to be "equal, indivisible, interrelated, and interdependent", the monitoring, enforcement and implementation framework for economic, social and cultural rights is less advanced than that for civil and political rights. International enforcement mechanisms are strongest for civil and political rights, and their violation is considered more serious than that of economic, social and cultural rights. There are few international NGOs that focus on economic, social and cultural rights and there are few lawyers who have the knowledge or experience to defend economic, social and cultural rights at a national or international level. Economic, social and cultural rights are less likely than civil and political rights to be protected in national constitutions.[13]

In 2008, the United Nations General Assembly adopted the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which gives the Committee on Economic, Social and Cultural Rights competence to receive and consider communications from individuals claiming that their rights under the Covenant have been violated by a state party. The Protocol entered into force on 5 May 2013.

Advocacy

Networking groups such as ESCR-Net are working to create online resources and spread information about effective cases, initiatives, and working groups promoting ideals and celebrating victories of human rights initiatives and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Currently, human rights advocacy groups are working diligently to fine-tune rules, regulations and implementation schemes; little news of complaint successes or failures is available.[14] The Centre on Housing Rights and Evictions (COHRE) has helped to establish the Housing and Property Directorate (HPD/HPCC) in Kosovo.[15]

Theory of rights

According to Karel Vasak's theory of three generations of human rights, economic, social and cultural rights are considered second-generation rights, while civil and political rights, such as freedom of speech, right to a fair trial, and the right to vote, are considered first-generation rights.[16] The theory of negative and positive rights considers economic, social and cultural rights positive rights.

Criticism

According to Ayn Rand there is no such thing as “a right to a job”—there is only the right of free trade, that is: a man’s right to take a job if another man chooses to hire him. There is no “right to a home,” only the right of free trade: the right to build a home or to buy it. There are no “rights to a ‘fair’ wage or a ‘fair’ price” if no one chooses to pay it, to hire a man or to buy his product. There are no “rights of consumers” to milk, shoes, movies or champagne if no producers choose to manufacture such items (there is only the right to manufacture them oneself). There are no “rights” of special groups, there are no “rights of farmers, of workers, of businessmen, of employees, of employers, of the old, of the young, of the unborn.” There are only the Rights of Man—rights possessed by every individual man and by all men as individuals. If some men are entitled by right to the products of the work of others, it means that those others are deprived of rights and condemned to slave labor. Any alleged “right” of one man, which necessitates the violation of the rights of another, is not and cannot be a right. The end does not justify the means. No one’s rights can be secured by the violation of the rights of others. No man can have a right to impose an unchosen obligation, an unrewarded duty or an involuntary servitude on another man. There can be no such thing as “the right to enslave.”[17]

See also

References

  1. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xiv. ISBN 978-0-8122-3916-4.
  2. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xiv. ISBN 978-0-8122-3916-4.
  3. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xiv. ISBN 978-0-8122-3916-4.
  4. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xiv. ISBN 978-0-8122-3916-4.
  5. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xv. ISBN 978-0-8122-3916-4.
  6. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xv. ISBN 978-0-8122-3916-4.
  7. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xv. ISBN 978-0-8122-3916-4.
  8. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xv–xvi. ISBN 978-0-8122-3916-4.
  9. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xvi. ISBN 978-0-8122-3916-4.
  10. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xvi. ISBN 978-0-8122-3916-4.
  11. ↑ Vienna Declaration and Programme of Action, Part II paragraph 75
  12. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xvi–xvii. ISBN 978-0-8122-3916-4.
  13. ↑ Leckie, Scott; Gallanger, Anne (2006). Economic, social and cultural rights: a legal resource guide. University of Pennsylvania Press. pp. xiii. ISBN 978-0-8122-3916-4.
  14. ↑ “Campaign for the Ratification and Implementation of the Optional Protocol to the ICESCR-Justice NOW! Ratify to protect all Human Rights.” ESCR-Net Newsletter December (2009)
  15. ↑ K. Hassine, Regularizing Property Rights in Kosovo and Elsewhere, 2010, ISBN 978-3-86553-340-1
  16. ↑ Karel Vasak, "Human Rights: A Thirty-Year Struggle: the Sustained Efforts to give Force of law to the Universal Declaration of Human Rights", UNESCO Courier 30:11, Paris: United Nations Educational, Scientific, and Cultural Organization, November 1977.
  17. ↑ Rand, Ayn (1964) the Virtue of Selfishness.