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Justifying justiciability of economic and social rights

When David Beetham claims that economic and social rights, even the seemingly fundamental ones, “cannot in principle be definable in justiciable form,” what he is explaining is not the theoretical possibility of making it justiciable, rather, he is stating the historical, legislative, and the cultural context for why it is not realistic for them to be justiciable.  With regard to the variables, Professor Beetham’s declaration is that of a realist.  What he states is directly relevant to the context that has emerged through time, and given that economic and social rights are struggling to exist in impoverished regions even more than a decade since he made such a declaration, the realism has not faded.  This has to do with the distinction between negative and positive obligations of institutions, and that the idealism sought in human rights within an attempted democratic society always puts human wellbeing second to other stated aims – maintaining a democracy seems to be the aim.

In analyzing the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which take their spirit from the Universal Declaration of Human Rights (UDHR), it begins to make much more logical and indeed economic sense that the ICCPR is given more respect than the ICESCR – at least for a democracy.  Guaranteeing economic freedom is not part of the democratic equation.  This has to do with the standard of politics pronounced in a so-called democracy where monetarism is pronounced, and inevitably the individuals working in institutions of power exist due to social and economic influence in the first place.  However, it is not the individuals that are to be judged, it is the social and economic environment itself, and it is from that understanding that change should emerge.  Indeed, whether power, wealth, or property, the acquisition of such things in a democratic society is considered normal given the civil and political standards constantly adhered to – having these civil and political standards are at odds with having the economic, social, and cultural standards that may be desired, yet may not be justiciable.  Civil and political rights are justiciable and easily so because they are negative obligations.  It is simple to refrain from doing certain acts in comparison to setting up institutional strength in enforcing economic and social rights – this requires a great deal of bureaucracy.  Critics may contend that it requires a great deal of idealism in the likes of socialism which faces constant opposition across the world, making it inherently unsustainable in international affairs so long as it has opponents which inevitably it will since it creates an inordinate amount of competition for multinational corporations to handle.  This is the difficulty in removing the distinction between the two sets of rights, for having the economic and social rights justiciable is directly at odds with the right to freedom, which is, unfortunately, another stretched term just as is democracy.

Having the economic and social rights would require heavy taxing and big government, currently a major issue being discussed in the United States as has been for over a century as the government can never find a way to decrease in size whether either major party in the two-party system is in power, where one of them has as one of its core principles to reduce the size of government so that it is limited.  The issue at hand currently is with a universal healthcare system, something impoverished countries could only dream of having so long as the economic and social rights are not justiciable – they simply do not have the resources to make this happen.  Indeed, even with the ICCPR, some countries more notorious for defying international law, such as the United States, have made reservations as to what applies to them and what does not – with the United States also not ratifying the ICESCR due to political pressure.  Indeed, this is the major reason for all human rights seeming inability to ascend into the forefront of the law.  There are organizations that attempt to regulate and pronounce the implementation of the ICESCR goals such as the World Health Organization for health purposes, UNICEF for children’s rights, FAO for food profiling, UNESCO for educational purposes, UNDP for aiding undeveloped and developing countries, and the ILO for labor rights.  However, the lack of political will and indeed the political ignorance of international law not just from the United States but also the United Kingdom and their economic competitors such as China is what forces ICESCR to be not globally relevant in comparison to the ICCPR.

Even the rhetoric of the ICESCR makes it clear that it was never intended to be justiciable.  It makes references to “taking steps,” and any state may take this to mean anything they wish so long as it can make the excuse of taking steps.  Clearly, for economic and social rights to be realized, it would require a direct effect on existing laws, conventions, and monetary policy, but this would 1) affect the sovereignty of that state, and 2) it would require a redistribution of wealth, power, and property not just within a state, but also across states, given the suggestion of international cooperation.  However, the international economy behaves differently than international government – in fact, there is a constant redistribution of wealth from the poor to the rich both in advanced and in basic economies.  Since the end of the Cold War, re-establishing United States as the world leader, politics has branded anything not capitalist in nature as a failure, and therefore, with the United States also most opposed to any economic or social obligation, making any greater ascension of these rights worldwide fairly difficult if not infeasible.  This causes other states to rely more heavily on the fact that their resources are constrained, justifying their lack of “taking steps,” while millions face a vast range of vulnerability.

While the European Union has grown to be a legitimate force in the respect of human rights given its focus on some positive obligations, it too is still limited by what is “necessary in a democratic society.”  There will be the opponents of economic and social rights who claim a dictatorial power is attempting to reduce individual liberties, but this a sheer cry of help unfounded in comparison to the millions and indeed over a billion undergoing starvation (“It is unacceptable in the 21st century that almost one in six of the world’s population is now going hungry,” Josette Sheeran, UN World Food Programme executive director).  Europe has managed to guarantee some positive obligations regarding labor rights for children (Siliadin v France [2005] regarding Article 4 ECHR).  A right to education in Protocol 1 Article 2 has been supported in the Belgian Linguistics case (1474/62, 1677/62, 1691/62, 1769/63, 1994/63, 2126/64), but it did not go as far as creating a positive obligation on the language used for education. Indeed, case law has shown positive obligations with regard to civil and political rights, but Europe has still been resistant with regard to certain aspects of economic and social rights.  The European Social Charter of 1961 serves as the foundation for these rights, but like with the ICESCR, simply makes recommendations when states fail to take action on a decision – political speak.  Additionally, not all member states have been consistent with incorporating all of the charter’s protocols.  It does have a minimum obligation based on human dignity, but the argument against these economic and social rights is that they are indeed political in nature, and courts do not have the competency to determine resource allocation (though one may argue that the very concept of such protocols existing is that they ought to or be able to refer to a competent agency).  However, with the EConvHR incorporating different qualified rights such as freedom of expression in Article 10 and freedom of assembly in Article 11, it is possible to see economic and social rights existing in the same manner.  Europe has done quite a progressive job in achieving both negative and positive obligations of the state in guaranteeing human rights, but Europe is not the world, and while the European Union may serve as a model to be taken seriously, this does not answer the whole question let alone even address it.  The real question is what constitutes human rights, and what will it take for economic and social rights to be taken seriously on the world stage of politics?

The current rhetoric established for economic and social rights do not define in a specific manner the minimum and the maximum rights (dictated by the states with the best internal economic and social rights) states should be afforded with the force of law.  Currently, there is the notion that human rights as a concept is only an aspiration, something which needs to be viewed upon as a bar that needs to be reached.  In order to be justiciable, however, there needs to be international agreement on what a minimum standard is – the recent UN Climate Change Conference in Copenhagen has shown a test on the world stage as to what a minimum is, but even for what it is tackling as a third generation set of rights (where civil and political rights are first generation and economic and social rights are second generation), minimum is not explicitly defined, but goals do exist.  Rather than setting goals, there needs to be an international agreement to set a minimum standard of decent living, unequivocally.  With the amount of resources and wealth hoarded by corporations which have GDPs in the top 50 of the world’s highest GDPs more so than states themselves, there is no question as to the amount of resources that do exist, but they are not managed in a sustainable manner.

Regarding justiciability, international governmental organizations like the United Nations are simply not given enough respect, but this is due to states refusing to take on the leadership of having the world agree on common causes, as to fight for a common cause worldwide would simply reduce profits.  To make these rights justiciable, there needs to be a starting point, a minimum.  It is obvious that all humans require food and shelter at a minimum, but with the continuous spread of globalization there is no reason that this minimum should not also include clothing, basic education, basic healthcare, and even basic telecommunications services.  For example, with the cost of computers becoming ever more affordable as products become obsolete every three months, along with high speed satellite Internet, it is not impractical to allow people to be able to participate on that platform in a meaningful economic manner – it can be argued that it is in fact cheaper and more sustainable to use the Internet in impoverished countries than it would be to use telephone landline or mobile services because the cost of other infrastructure.  The International Telecommunication Union (ITU), the longest lasting organization of the UN in existence since 1865, would be the most reasonable organization to oversee that development.

It is the set of services like telecommunications that support both public and private institutions of education, healthcare, and truly all aspects of business in the most economically efficient manner.  Indeed, following the terrorist attacks of September 11, 2001, an increased caution has been placed on telecommunications networks with regard to security.  Clearly, the services like any can be used for destructive means, but the economic efficiency behind the technology proliferating worldwide is inevitable, and it is therefore clear that the level of available technology will indeed dictate what a worldwide minimum is.  Again, what is lacking is political will to make these rights justiciable, but there needs to be a minimum, and if a minimum is not established, then it is just as well true that human rights is merely rhetoric.  The aspiration of human rights is not just a negative obligation upon member states to respect certain rights, but states exist because they are different, and that they are to provide positive rights for their citizens.  The level and extent to which these are provided require more than just a utopian goal, these require a solid minimum.   A reasonable expectation would be that the “taking steps” rights would become guaranteed minimum rights worldwide within the ICCPR and ICESCR for a select number of rights every five years (e.g. 2010, 2015, 2020 and so on).  An agreed upon minimum that may exist within economic sustainability is justiciable. The scientific reality is that a lack of resources will inevitably prevent economic and social rights from existing in a region, and they certainly degrade civil and political rights just as well.  South Africa is a great example of human rights with the right idea: its state constitution explicitly states rights concerning housing, healthcare, food, water, social security and education (Sections 26, 27, and 29).  Where the rights cannot be met due to lack of resources, it is still imperative upon the state to meet these obligations, as they are constitutional rights, giving the state more than the legitimate right to state “South Africa’s Constitution is one of the most progressive in the world and enjoys high acclaim internationally” on the South African Government Information website. The hope for human rights is that it not require the constant boom-and-huge-bust cycles of the world economy in order to point out basic flaws that have basic solutions.

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