Social and economic rights have always posed two important questions for jurists and judges alike?

Introduction

Social and economic rights have always posed two important questions for jurists and judges alike. The first question relates to the normative constitutional role of these rights. The second question relates to the judicial enforceability of these rights. It is important to understand that despite the Universal Declaration of Human Rights (UDHR) providing no difference between the social and economic rights and the civil and political rights of people. Rights belonging to both these groups were provided without distinction or favour in the UDHR. However, by the time the binding international covenants by the UN came into being in 1966, there was a strict and discernible difference drawn between these rights and the level of their importance, with social and economic rights relegated to the inferior position as far as enforceability of these rights was concerned.

Due to the obvious distinction drawn for social and economic rights being in the nature of rights that are enforceable only to the extent of the capacity of the state to enforce them, it is no surprise that there is a strong debate on the actual enforceability of the social and economic rights by the national courts.

This essay seeks to understand the nature of the social and economic rights and the dimensions of the judicial enforceability of the same.

Social and Economic rights- Nature

Social and economic rights are considered to be second generation rights in international human rights law. They are considered to be derived from the positive law as opposed to the first generation civil and political rights, which are considered to be derived from natural law. The difference between the two is that whereas civil and political rights are considered to be inalienable and inherent in nature, that is, rights that are not granted by the state, but are inherent in all human beings, the social and economic rights are considered to be positive rights that come into existence when state recognize these rights. Historically, the classification of human rights into two groups, with the relegation of socio-economic rights into a lower category of human rights, emerged and developed mainly after the 1950s during the Cold War and ultimately led to the adoption of two separate UN Covenants, with different formulation and enforcement mechanisms for each set of rights.

The difference between the rights can also be understood by reference to the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR).

The ICESCR, article 2 (1) provides:

“Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (emphasis supplied)

The abovementioned provision is a good indicator of the nature of economic and social rights. Here, the Covenant does not cast an absolute duty on the state parties to ensure the implementation of the rights provided under the covenant. On the contrary, the provision recognises that the achievement of these rights is progressive in nature and will happen gradually and not uniformly for all states concerned. Moreover, the duty that is cast on states is to protect these rights to the maximum of its available resources. This means that the fulfilment of these rights somehow depends on the capacities and capabilities of the states. Some states may find that they are not sufficiently advanced or economically competent to provide these rights to its people. If this provision is contrasted with the ICCPR provisions, it makes the matter clearer. ICCPR, article 2 (1) provides:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

This principle is called as the ‘progressive realisation’ principle and this principle basically is the result of a recognition that the social and economic rights can only be enforced if the states have the material capacity to provide these rights. States may face resource constraint in ensuring the enforcement of these rights, considering the nature of these rights. Furthermore, article 2 (3) provides that State Parties shall ensure effective remedies to those persons whose rights or freedoms are even when such a violation has been committed by persons acting in an official capacity and that such a remedy shall be determined by competent judicial, administrative or legislative authorities and that such competent authorities shall enforce such remedies when granted. There is no such corresponding provision given in the ICESCR for the enforcement of social and economic rights recognized under the covenant.

Apart from the ICESCR, there is a proliferation of legal norms in international law, that seeks to give recognition to certain economic and social rights. An example can be taken of the UN Convention on the Rights of the Child 1989. The universal rights of every child is the basis for the convention and the Convention itself has been ratified by most of the states in the UN. However, questions concerning the actual implementation of the economic and social rights is very relevant here.

The principle problem that faces courts is the computation of remedy that can be awarded in cases involving breach of social and economic rights. The social and economic rights conventions leave the processes and programmes to states and the states justify the fulfilment or lack of it, of economic and social rights by taking the excuse of political “deliberations on national resource allocation priorities”.

It can be said that the nature of the social and economic rights is aspirational. Therefore, states aspire to achieve social and economic conditions of the kind that will allow them to provide for the enforcement of the rights. If this argument is to be accepted, that would mean that the enforcement of these rights is not within the domain of the courts, it is only in the domain of the legislature, which will formulate the social welfare policy that can be used to implement these rights.

Scope of enforceability

Prior to the 1990s, there was a serious debate on the enforceability of the social and economic rights, which centred around the jurisdiction of the national courts to enforce these rights. At the same time, the debate was theoretical and “based for the most part on mere speculation and pure conjecture”. At the time, the basic questions that were raised on domestic enforceability were related to the competency of the courts to hear these matters. Today, the debate has moved considerably away from this position and at the very least, the “wisdom of allowing judges the power to enforce social rights is no longer seriously questioned.” There are some standard objections to the justiciability of social and economic rights. One author points out some of these arguments:

“There are three main objections that have been advanced in relation to the justiciability of ESCRs. First, there is the purported distinction between economic, social, and cultural rights on the one hand, and civil and political rights on the other. Second, there are two legitimacy concerns, namely that it offends democratic principles and violates the constitutional doctrine of the separation of powers. Third, there is a fear that judges do not have the capability to deal with polycentric issues that have implications for budgetary and policy decisions that are considered to be the prerogative of the executive arm of government.”

The difference between the civil and political rights on one hand and social and economic rights on the other, has been covered above. However, it would be pertinent to consider the other two points that are mentioned here. The first of these two points concerns the legitimacy concerns which are rooted in the traditional concept of separation of powers principles which are followed in most democratic countries in the world. To deal with this issue first, it can be said that there are some justifiable concerns here. Most democratic countries, such as the UK, leave the policy making functions to the elected leaders of the public. Judiciary is not elected and therefore, ideally is not supposed to exercise powers that are akin to law making or policy making. As Sir Sales puts it: “The legislature is a body established precisely to make law. It is constituted so as to give effect to democratic principle and to afford representation for the people. It uses procedures designed to give careful consideration to a wide range of interests and representations. Judges, by contrast, represent no-one.” Social and economic rights in order to be enforced involve important political and economic considerations, that it is considered incorrect for the judiciary to intervene in these functions by providing the implementation of the social and economic rights, when the government itself has not made some policy for the same. Essentially, such rights can only be implemented by making a social welfare policy and it not the task of the courts to make such a policy. Rather, it is the task of the legislator.

Another argument that is made against the justiciability of these rights is that the rights themselves are not of a clear and unambiguous nature. The arguments here include the fact that because the rights themselves are not clearly emphatic as to the justiciability issue, courts would have to apply a lot of interpretation, to the point of judicial law making, in order to enforce these rights. There are counter arguments as well. These arguments point out towards the clarity that has been brought into the nature and scope of judicial enforcement of social and economic rights, which have also undergone a lot of change. The advancements in the clarifying of the social and economic rights and its jurisprudence is attributed to the draft Optional Protocol to the ICESCR, which would provide for a complaints procedure for individuals and groups concerning alleged violations of economic, social and cultural rights. However, even considering these changes, it is still clear that only those states that have signed the Optional Protocol are bound by its jurisdiction. For other states, the only option is that the national courts enforce these rights, which brings us back to the objections to the justiciability of the ICESCR, that is, that the rights provided therein are imprecise and vague, and that there is no implementation mechanism under the covenant. One must also recall the progressive realization principle which by itself only requires the states to implement the economic and social rights, as it thinks that it can at the point in time. In other words, the timeline for implementing these rights itself is not clearly given under the ICESCR. This makes the enforcement of these rights a vague proposition. Courts can only begin to take cognizance of matters related to implementation of these rights when such a power is clearly given to it. It is a fact that the point when courts become engage in a human rights related matter, when such a complaint is made to it. As one author summarise the role of the court in such a complaint:

“Engagement of courts in the protection of human rights begins by the filing of complaints relating to alleged violations of human rights. Complaints of violation of economic and social rights typically involve claims by deprived persons, challenging government policies and decisions alleged to cause or exacerbate the claimants’ suffering or disadvantage. When such complaints are litigated in court, it amounts to inviting the judicial arm of government to question decisions made by the executive in a domain constitutionally reserved for the executive. Moreover, if courts sit in judgment on matters reserved for the competence of the executive, this might contravene the principle of separation of powers, since courts might impose their preferences on the government and upset the policies of the state’s elected political leadership.”

This is a justifiable position with respect to social and economic rights, which are provided in the international human rights jurisprudence itself in such a way that it leaves the matter of their nature and scope unclear.

Conclusion

Social and economic rights have not been able to achieve the level of clarity in their nature and enforceability as is seen in civil and political rights. Moreover, the Covenant itself has left the question of enforceability to be open-ended. There is no fixed timeline in the covenant as to the period within which the states must achieve the enforceability of the rights as envisaged under the covenant. At the same time, article 2(1) of the ICESCR provides the principle of progressive realisation which gives ample time to the states to implement the rights under the covenant. The reason for this provision is the understanding that implementation of these rights needs a level of economic and social capability, which may differ from state to state. This also means that the nature of these rights is positivist, which means that the rights have to be recognised and specifically implemented by the state, in order for the rights to be enforced in courts of law. As the provision of these rights would involve some kind of social welfare policy on the part of the state, this recognition and enforcement of rights, is best left to the legislature of the state. Policy forming function

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