Economic, Social and Cultural Rights

Manisuli Ssenyonjo

• Publisher: Routledge
• Year: 2017
• Print ISBN:
  9781409421511
• eBook ISBN:
  9781351941860
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

Economic, Social and Cultural Rights is a collection of seminal papers examining legal, conceptual and practical questions regarding the international legal protection of economic, social and cultural rights. The volume discusses what human rights obligations economic, social and cultural rights entail for states and non-state actors; the nature and scope of substantive economic, social and cultural rights such as education, health, work, water, enjoyment of the benefits of scientific progress, and cultural rights; as well as the justiciability of these rights at an international level and at the national level. The paramount importance of such questions is illustrated, among other things, by the catastrophic situation of economic, social and cultural rights as human rights in developing and developed states. The volume is divided into three main parts which focus on human rights obligations for states and non-state actors arising from treaties protecting economic, social and cultural rights; analysis of selected substantive rights; and finally the justiciability of economic, social and cultural rights in various contexts such as within the United Nations, Europe, Inter-American, and African systems, as well as within the domestic system.

Part I
Human Rights Obligations

[1]

The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights

Philip Alston and Gerard Quinn*

I. Introduction

A. An Overview of Common Perceptions of Economic, Social, and Cultural Rights

B. Principles of Interpretation of the Covenant

II. The Nature of States Parties’ Domestic Obligations under the Covenant

A. An Analysis of the Words and Phrases Used in Article 2(1)

(i) “undertakes to take steps”

(ii) “by all appropriate means, including particularly the adoption of legislative measures”

(iii) “achieve progressively”

(iv) “to the maximum of its available resources”

B. The Implications of the Covenant in Terms of Different Systems of Governance

C. The Nature of State Obligations Implied by the Use of Specific Words and Phrases in Part III of the Covenant

(i) The understanding to “respect” certain of the rights

(ii) Progressive achievement of rights “recognized” in Part III

(iii) Undertakings to “ensure” and “guarantee”

(iv) Concluding observations on Part III of the Covenant

III. The Nature of States Parties’ International Obligations; The Meaning of the Phrase: “Individually and Through International Assistance and Co-Operation, Especially Economic and Technical”

IV. Limitations Provisions: Articles 4,5, and 8

A. Article 4: The General Limitations Clause and its Functions

(i) Sources for interpreting Article 4

(ii) The extent of application of the limitations clause

(iii) The protective function of the limitations clause

(iv) Meaning of the phrase “as are determined by law”

(v) Meaning of the phrase “compatible with the nature of these rights”

(vi) Meaning of the phrase “solely for the purpose of promoting the general welfare in a democratic society”

(vii) Meaning of the phrase “the general welfare”

(viii) Meaning of the phrase “in a democratic society”

B. The Relationship Between Articles 2(1) and 4

C. Article 5: The Safeguard Against Abuses Clause

(i) Article 5(1)

(ii) Article 5(2)

D. Article 8: Limitations on Trade Union Rights

(i) Paragraph 1 (a) and (c)

(ii) Article 8(2)

(iii) Article 8(3)

V. Derogation from Obligations under the Covenant

VI. Conclusion

Annex: The Legislative Drafting History of Article 2(1)

I. INTRODUCTION

The concept of economic, social, and cultural rights has long generated con troversy among philosophers, as indeed has the very notion of human rights itself. From a legal perspective, however, this controversy should have been laid to rest by the adoption of the International Covenant on Economic, Social and Cultural Rights by the United Nations General Assembly in 1966,¹ its entry into force in 1976, and the formal acceptance of the ensuing treaty obligations by 87 states (as of 1 August 1986)² Nevertheless, the debate remains at least as polarized today as it ever was in the days when the international community had yet to recognize formally the legitimacy of economic, social, and cultural rights. This is demonstrated in part by the number of commentators who continue to contest the status of those rights, as rights, in any juridical sense. The U.S. government has further strengthened the case against economic, social, and cultural rights as rights. Since 1981 the United States has maintained that economic, social, and cultural rights belong in a “qualitatively different category” from other rights, that they should be seen not as rights but as goals of economic and social policy,³ and that, as rights, they are too easily abused by repressive governments as justifications for violations of civil and political rights .⁴

The purpose of this article is to examine the nature and scope of the obligations of states parties under Parts 1, II, and pl of the Covenant. While the paper purports neither to present a general theory of economic, social, and cultural rights, nor to respond systematically to the many criticisms that have been levelled against those rights, it is hoped that a clearer understanding of the obligations contained in the Covenant will serve to destroy some of the fallacies and misperceptions which in the past have too often served to distort and obfuscate the debate.

The article is divided into three major sections. Section I deals with introductory matters that have a bearing on the nature of our task. These include an overview of common perceptions about economic, social, and cultural rights and a commentary on the principles of interpretation to be used in ascertaining the meaning of the text. The second section deals with the nature of states parties’ obligations under the treaty. These include both the general domestic and international obligations provided for in Part II of the Covenant and the specific obligations (i.e., those arising in connection with specific rights) implied by the various words and phrases used in Part 111 of the Covenant. The third section of the article deals with limitations upon, and derogations from, the obligations undertaken by states parties. This involves an analysis of the provisions contained in Articles 4 and 5 and of the Covenant and of the relationship between Article 4 and Article 2(1). An Annex contains a brief outline of the legislative drafting history of Article 2(1).⁵ The nondiscrimination provisions in Articles 2(2) and 3, and the exception in Article 2(3) of the Covenant with respect to the economic rights of non-nationals in developing countries, are dealt with in separate articles in this issue of the Human Rights Quarterly.

A. An Overview of Common Perceptions of Economic, Social, and Cultural Rights

Before embarking on a textual analysis of the Covenant it is appropriate first of all to take note of some of the ways in which economic, social, and cultural rights are commonly perceived. For the most part the relevant characterizations are put forward in the context of comparisons between civil and political rights on the one hand and economic, social, and cultural rights on the other.⁶

The first and most commonly drawn distinction is between positive and negative rights. Thus civil and political rights are characterized as negative in that they require only that governments should abstain from activities that would violate them. Economic, social, and cultural rights require active intervention on the part of governments and cannot be realized without such intervention. Closely linked to this is a distinction between resource-intensive and cost-free rights. Thus it is said that civil and political rights can be realized without significant costs being incurred, whereas the enjoyment of economic, social, and cultural rights requires a major commitment of resources. Largely for that reason the former are considered to be capable of immediate and full realization whereas the latter constitute no more than long term aspirational goals.

A further distinction arises from the fact that in direct contrast to the obligations attaching to economic, social, and cultural rights those relating to civil and political rights are considered to be capable of relatively precise definition, to be readily justiciable, and to be susceptible of enforcement. Similarly civil and political rights relate to widely shared values to which governments are genuinely committed and raise issues that are manageable and within reach. By contrast, economic, social, and cultural rights have attracted no real governmental commitment, and concern issues that are con sidered to be inherently intractable and unmanageable and are thus much too complex to be dealt with under the rubric of rights.

Finally, civil and political rights are seen as essentially non-ideological in nature and are potentially compatible with most systems of government. By contrast, economic, social, and cultural rights are often perceived to be of a’ deeply ideological nature, to necessitate an unacceptable degree of intervention in the domestic affairs of states, and to be inherently incompatible with a free market economy.

Although it is not specifically designed to resolve any of these issues the following analysis demonstrates the validity, or at least partial validity, of some, of the above mentioned perceptions and the invalidity or partial invalidity of others. Whatever conclusions may be drawn, the examination and evaluation of such perceptions at least serves to sharpen our understanding of the critical issues involved. In the final analysis the central underlying question concerns the extent to which the concept of economic, social, and cultural rights can or should be artificially moulded so as to fit a predetermined conception of rights which by definition has been tailored to reflect the perceived characteristics of civil and political rights.

B. Principles of Interpretation of the Covenant

Notwithstanding the tendency among some commentators to dismiss the legal significance of the Covenant, it is a treaty that gives rise to formal obligations on the part of ratifying or acceding states and, as such, it must be interpreted in the light of the customary rules of international law pertaining to treaty interpretation. It is now generally accepted that these rules are reflect...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Human Rights Obligations
• Part II Selective Substantive Rights
• Part III Justiciability of Economic, Social and Cultural Rights
• Name Index