Question One: Progressive realisation undermines an Optional Protocol
The Committee on Economic, Social and Cultural Rights has adopted General Comment 3 on progressive realisation and the availability of resources.
The General Comment develops the concept of a “minimum core obligation” “to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights.”
The General Comment further notes that where the minimum core standards are not realised, resource constraints should be considered within the context of the State Party having allocated maximum available resources.
Moreover, the Committee noted that a lack of resources does not remove the obligation to strive for implementation of ESCR or to monitor the actual extent of implementation.
With regard to the progressive realisation of economic, social and cultural rights, courts have shown the capacity to set boundaries for their intervention. For instance, the Swiss Federal Court has said it lacked the “competence to set priorities in allocating resources” but would intervene if the legislative framework failed to ensure constitutional entitlements.1
The state obligations under the covenant can be differentiated into respect, protect and fulfill as the general comments of the CESCR and the reports of the Special Rapporteurs has elaborated. Following the different levels of obligations is helpful to to differentiate about the action or omission in government policies that contribute or constitute to a violation of one of the ESC-rights. Respect requires governments often to omit action, while protection requires an activity, be it either to draft adequate legislation to protect certain vulnerable groups or be it that the government has to implement and enforce existing legislation, e.g. to not discriminate certain groups. Protect requires often the control of national or foreign companies or other economic powerful player. This two level of obligations can be implemented immediately. The obligation to fulfil require resources and need progressive realization towards the full implementation of the rights. Nevertheless states have to start implementing it immediately, using the “maximum of available resources” as the Committee has noted in General Comment No. 3.
The 1997 Maastricht Guidelines further develop that there are immediate and progressive obligations in the definition of types of violations: “11. A violation of economic, social and cultural right occure when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant, or fails to achieve the required standards of conduct or result. Furthermore, and discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status with the purpose to effect or nullifying or impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant.
Question two: Court interference in policy
While issues of social and economic policy sometimes involve complex questions that may pose difficulties for resolution on a case-by-case basis, it can be agreed by all that courts frequently deal with many questions concerning the public interest. For instance, judgments on the right to freedom of expression will involve certain contested interests. As a result, the judges will have to balance the notion of public or national interest with the restrictions put to the enjoyment of the right to freedom of expression. Such balancing act between contested interests can be easily applied within the realm of economic, social and cultural rights.
When national courts have intervened to order that specific programme or policy be implemented, the orders have, in most cases, given a wide degree of discretion to the government to devise the appropriate response. The Bangladesh High Court noted in 1999 that in order to fulfil the basic rights of equality, life and livelihood, the government had to complement its project to demolish slum-dwellings in Dhaka with a plan to rehabilitate the dwellers and that the project needed to be carried out in stages with reasonable notice given to evict.
The High Court provided a general direction to the government regarding what an adequate accommodation would look like. However, it with regard to the progressive realisation of economic, social and cultural rights, courts have shown great capacity to limit the scope and extent of their involvement. Thus for instance, the Swiss Federal Court has said it lacked the “competence to set priorities in allocating resources” but would intervene if the legislative framework failed to ensure constitutional entitlements.
Legislators are the presumed decision-makers with respect to policy decisions. However, the role of the court/adjudicative bodies is to interpret, apply and give effect to legal provisions including legal rights. The Supreme Court of Canada has held that it is the substance of the rights which determines the Court’s role and not vice versa. In this context the treaty monitoring bodies would not be making social policy decisions, but rather interpreting and applying the rights which policy decision-makers have decided to enshrine.
The adjudication of civil and political rights, as well as many other legal rules such as trade law, regularly impinges upon the political options of governments, notably with regard to the allocation of resources.
In general when dealing with ESC-rights courts will limit their scrutiny to determinations of whether government policies or legislation contribute to a violation of one of the Covenant Rights. They will not prescribe how a new policy should look like in detail or the manner to be followed in achieving compliance with ESC-Rights. Allowing recourse for ESC-rights will help people to determine whether a certain policy or legislation is in conformity with international human rights standards. If a violation or breach has been found the government has a myriad of ways to react and to design new policies.
Question three: Availability of resources and the link to the right to development
The state obligations under the covenant can be differentiated into respect, protect and fulfill as the general comments of the CESCR and the reports of the Special Rapporteurs has elaborated. Following the different levels of obligations is helpful to to differentiate about the action or omission in government policies that contribute or constitute to a violation of one of the ESC-rights. Respect requires governments often to omit action, while protection requires an activity, be it either to draft adequate legislation to protect certain vulnerable groups or be it that the government has to implement and enforce existing legislation, e.g. to not discriminate certain groups. Protect requires often the control of national or foreign companies or other economic powerful player. This two level of obligations can be implemented immediately and are not too costly to implement, even if costs are also linked particular to the obligation to protect. But this costs occur as well for the implementation of civil and political human rights. The obligation to fulfil obviously will require the use of resources, e.g. for agrarian reform policies. But the Covenant on Economic, Social and Cultural Rights do not require any impossible use of resources from governments. It asks in Art. 2 to use the “maximum of available resources” and to implement the right “progressively”. Both provision are specifically included to allow poorer states to implement the rights in the covenant. Nevertheless countries should make sure that they have immediately started to implement the rights enshrined in the covenant and that the resources available are used.
On international assistance and the right to development a detailed treatment will be distributed tomorrow.
Question four: Is the CESCR the most appropriate body to deal with complaints ?
A treatment of this topic will be distributed to delegates tomorrow for their consideration.
Question five: Clarification of the content of rights and obligations
The Committee, through General Comments and Concluding Observations, have clarified in some detail the precise nature of States Parties obligations. We have already explained this in the answer to Question one and three (see above):
Moreover, through regional mechanisms and domestic jurisprudence, the scope and content of economic, social and cultural rights has been further clarified;
The adoption of an Optional Protocol to the ICESCR provides an opportunity to consolidate national and regional jurisprudence and further articulate the normative content of the rights contained in the ICESCR.
Finally, it needs to be born in mind that it is in the very essence of law making that determinations of the scope and content of rights cannot be fully ascertained on an a priori basis but, rather, such limits are arrived at by courts through determinations of legislative intent in its application to specific cases.
Question six:Proliferation of human-rights instruments
The adoption of an Optional Protocol to ICESCR is an opportunity for governments to take action on the Vienna Conference on Human Rights commitment to the indivisibility of human rights; the OP to the ICESCR creates parity between civil and political rights and economic, social and cultural rights;
While the OP to ICESCR would create a new procedure, it does not create new substantive rights;
Experience demonstrates that the existence of an Optional Protocol does not lead to a proliferation of communications. For example, since the entry into force of the OP to CEDAW in 2000, only two communications have been filed. Similarly, very few communications have been filed through the CERD procedure;
Moreover, provisions on the exhaustion of domestic remedies and admissibility will prevent vexatious communications.
Question seven: Pick and choose rights for inclusion in the OP to ICESCR
A selective approach would have the result of creating a hierarchy of rights, which undermines the internationally recognised principle of indivisibility of human rights. This principle is upheld in the first Optional Protocol to the ICCPR which ensures that all rights articulated in the ICCPR are available for consideration in communications.
All substantive rights of the Covenant are of equal importance to human dignity.
Question eight: Should violations be considered an internal affair?
The adoption of the Vienna Program of Action included recognition that human rights are a matter of international concern.
Ratification of an international human rights treaty has committed to the obligations contained in the ICESCR, and an Optional Protocol simply enables those rights to be realised
State Parties that have ratified or signed the ICESCR have embraced the concept of international supervision of implementation of their obligations
Question nine: Difference in legal nature in obligations between c+p and escr
Some have argued that there is a clear distinction to be drawn between civil and political and economic, social and cultural rights. For example, some point to a concept of positive and negative obligations, others that economic, social and cultural rights are vague in comparison to the claimed precision of civil and political rights; that civil and political rights are cost neutral while escr require resource allocation; and finally the issue of progressive realisation versus immediate application. However, examination of these distinctions reveals them to be misconceived.
It is said, that state duties in respect of cpr are covered in terms of abstention from interfering with individual freedom (negative action from the state). Thus, individuals have the right against the state not to be hindered in his/her actions. In contrast, escr require specific actions by the state. Thus, the individual has the right to claim from the state positive actions. In reality, this distinction is less absolute. First, the concept of positive duties is increasingly becoming part of the normative requirements of cpr. It is considered that in order to give an effective guarantee of some cpr, states must not only refrain from an intervention, but also take positive measures. For example, the state has an obligation not only to ensure that its agents abstain from using torture, but also an obligation to take positive measures such as educating/training police, prison guards etc. On the other hand, the right to housing requires that states refrain from forcibly evicting households.
The lack of precision in the economic, social and cultural rights provisions is not inherent to their nature. Some provisions on escr are expressed in very precise language, not only at the national but also at the international level. Secondly, in many cases the supposed vagueness of some escr is a consequence of the lack of attention that these kinds of rights have suffered. Cpr have in practical terms, received far more attention than escr, as a result of that; they are now more precise than the latter. For example, if we now have one clear meaning about what is the “due process of law”, it is because that term has been precise by the doctrine and the jurisprudence is well developed in this sense.
A more careful treatment of this topic will be distributed to delegates tomorrow for their consideration.