Judging Economic, Social and Cultural Rights

Rights, without a forum in which to give them expression, are merely rhetorical. This, surely, is one reason that civil and political rights glamorously strut the human rights stage. They appear in our newspapers. People regularly protest their violation. Nations are (sometimes) diplomatically spanked for breaching them. This is possible because they are exposed.

Exposure occurs because the International Covenant on Civil and Political Rights is subject to an individual complaints mechanism. If you’re tortured, detained arbitrarily or discriminated against by the law, you can litigate. States are forced to argue their case, legal rulings are made, individuals may be compensated and headlines follow. These rights matter.

The relentlessly repeated mantra is that human rights are indivisible, interdependent and interrelated; that they must not be treated as isolated rights but as part of a singular, comprehensive system of rights. If one right matters, all do. But despite this, economic, social and cultural rights have long been consigned to the more ineffectual backwaters of the international human rights system.

In part, this is because they sound less spectacular: the right to health does not capture attention in the way that freedom from torture does. But it is largely because economic, social and cultural rights cannot be given judicial expression. Presently, no individual complaints mechanism exists for people whose economic, social and cultural rights have been violated. States are not called to account in a litigious setting. Judgements are not given, compensation is not paid, and headlines do not follow. These rights are rhetorical.

It’s a gaping hole: one which the UN Human Rights Council is attempting to fill. Last month, the members of that Council came together to discuss drafting an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (ICESCR). The central plank of that Protocol would be the introduction of an individual complaints mechanism for violations of ICESCR. It would be a crucial step for making economic, social and cultural rights matter. And they should. The right to shelter is no less important than the right to vote.

But it is also a complex step that raises several questions concerning which rights should be covered and what inquiry procedures are most appropriate for such a judicial forum.

A Working Group was established with a mandate to explore these options, but when the Council met, that mandate had come to an end. The question was therefore whether or not the mandate should be extended. In short, is the Optional Protocol worth the hassle?

For most, it was a no-brainer. Representatives from Argentina, Brazil, Mexico, Guatemala, Senegal, Azerbaijan, Chile and the Group of Latin American and Caribbean States reiterated specifically the importance of developing a judicial mechanism for the protection of economic, social and cultural rights. Mexico and Morocco went so far as to argue that the distinction between civil and political rights, and economic, social and cultural rights is artificial. It followed that all rights demanded protection on an equal footing. Equality is undermined where one set of rights is justiciable and another is not.

Even those with reservations about the Protocol, such as the United Kingdom and the Netherlands, or those with disagreements about the Protocol’s precise content, were prepared to support further work being done on it. The preparedness stems from the desire to elevate economic, social and cultural rights to an equal level with civil and political rights. In the final analysis, the Working Group’s mandate was extended with the hope that the Council would come to some kind of future consensus. To this extent, delegates were in heated agreement.

Except two: those representing the United States and Australia.

Their isolated stance boiled down to one essential argument: that economic, social and cultural rights differ so significantly in their nature from civil and political rights that they are unfit for judicial treatment. The argument runs that determinations of economic, social and cultural rights must necessarily involve wide-ranging considerations of a country’s resource allocation decisions and could therefore have significant fiscal implications. This, of course, assumes that there are no fiscal or resource allocation implications in the context of civil and political rights. But a judicial ruling on conditions of detention is potentially every bit as fiscally potent as one on the right to shelter. This has never been a reason not to adjudicate on the civil and political rights of detainees.

Australia specifically argued that economic, social and cultural rights were not best protected via a judicial mechanism. But such fears have not materialised in the Council of Europe, whose judicial mechanism for protecting these rights has resulted in a finding against Portugal for failing to combat child labour. Nor have the Americas collapsed as a result of the work of the Inter-American Commission on Human Rights. Meanwhile in Africa, the African Commission on Human and Peoples’ Rights has found breaches of the right to health and a safe environment where the extraction of oil reserves had contaminated the environment damaging the health of local communities.

The trend is catching. Norway, South Africa, Finland, India and the United Kingdom have all begun incorporating economic, social and cultural rights into domestic law. It is true that the jurisprudence surrounding economic, social and cultural rights is shallow and underdeveloped in comparison with that concerning civil and political rights. But this is one of the best arguments for an individual complaints mechanism to begin. Indeed, the above developments have already begun generating important jurisprudence in the area. If, as the United States and Australia claim, these rights are inherently not justiciable, someone forgot to tell the rest of the world.

Ultimately then, American and Australian objections are not convincingly jurisprudential in nature. They are political. It is difficult to believe they emanate from a concern for the integrity and importance of economic, social and cultural rights. It is more likely they reflect a gradual philosophical retreat from the demands of international human rights law. Little wonder economic, social and cultural rights are merely rhetorical. Australia’s commitment to human rights is too.

Waleed Aly is a Secondee Solicitor with the Human Rights Law Resource Centre