Vindicating Socio-Economic Rights

International Standards and Comparative Experiences

Paul O'Connell

• Publisher: Routledge
• Year: 2012
• ISBN:
  9781136457531
• Edition: 1
• Topic: Jura
• Subtopic: Bürgerrechte

Notwithstanding the widespread and persistent affirmation of the indivisibility and equal worth of all human rights, socio-economic rights continue to be treated as the "Cinderella" of the human rights corpus. At a domestic level this has resulted in little appetite for the explicit recognition and judicial enforcement of such rights in constitutional democracies. The primary reason for this is the prevalent apprehension that the judicial enforcement of socio-economic rights is fundamentally at variance with the doctrine of the separation of powers.

This study, drawing on comparative experiences in a number of jurisdictions which have addressed (in some cases more explicitly than others) the issue of socio-economic rights, seeks to counter this argument by showing that courts can play a substantial role in the vindication of socio-economic rights, while still respecting the relative institutional prerogatives of the elected branches of government. Drawing lessons from experiences in South Africa, India, Canada and Ireland, this study seeks to articulate a "model adjudicative framework" for the protection of socio-economic rights. In this context the overarching concern is to find some role for the courts in vindicating socio-economic rights, while also recognising the importance of the separation of powers and the primary role that the elected branches of government must play in protecting and vindicating such rights. The text incorporates discussion of the likely impact and significance of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, and looks at the implications of the Mazibuko decision for the development of South Africa's socio-economic rights jurisprudence.

1 Introduction

While the rhetoric of international human rights law maintains that all human rights are indivisible, interdependent, interrelated and consequently deserving of equal respect,¹ the reality is that socio-economic rights have traditionally been viewed and treated as ‘the Cinderella of the international human rights corpus’,² honoured more in ‘the breach than the observance’.³ This second-class status has, among other things, had ‘a negative impact on the possibilities to claim effective implementation of these rights, both at the international and domestic level’.⁴ And notwithstanding a degree of optimism generated in recent years by an emergent international, regional and domestic jurisprudence dealing with socio-economic rights,⁵ a combination of global political developments,⁶ and continued hostility to the protection of such rights by domestic courts, has insured that socio-economic rights very much retain this second-class status.⁷ The arguments against socio-economic rights are something of a hodgepodge, spanning arguments grounded in abstract moral philosophy to more focused, practical arguments about the competence of courts to adequately address cases involving the assertion of such rights, with a lot of blurring of the lines in between.⁸ Over the last number of years these arguments have found favour in Ireland and other jurisdictions, and have emerged as a veritable orthodoxy in constitutional jurisprudence,⁹ and it is the ultimate object of this study to critically engage with this incipient orthodoxy.

As will become clear in the pages and chapters that follow, the ultimate concern with the protection of socio-economic rights is the fear that providing constitutional protection for such rights will result in undermining the separation of powers by transferring too much authority to the courts, at the expense of elected branches of government. What this study aims to do is show, through a comparative survey of a number of jurisdictions which have grappled with the issue of socio-economic rights, that it is possible for the courts to play a meaningful role in the protection, realisation and vindication of such rights, without undermining the separation of powers. Through an assessment of the experience of other jurisdictions, noting both best practice and potential pitfalls, the ultimate aim will be to articulate a model, or ideal, framework for courts in general to play a role in vindicating socio-economic rights. The rest of this introductory chapter clarifies the terms of the debate, specifying the focus of the study, the main arguments to be addressed and addressing some issues of comparative methodology, before the subsequent chapters embark in earnest on the comparative exercise.

1.1 Socio-economic rights

A preliminary point which needs to be addressed, and which will be dealt with here, is what exactly is the subject matter of this study? The seemingly self-evident answer to this question may very well be intuitively obvious, but we nonetheless profit significantly from taking the time to spell out precisely what this study is about, to avoid, or at least reduce, confusion. To begin with, then, the focus of this study is the constitutional protection of socio-economic rights (or to put it slightly differently: the focus of this study is the separation-of-powers argument against the constitutionalisation of socio-economic rights). Now, this preliminary clarification requires the further explanation of the following three sub-matters: (i) what are ‘socio-economic rights’, or at least what is the understanding of the term as it is used here?; (ii) why the focus on constitutional, as opposed to legislative, protection of such rights?; and (iii) why the insistence on the judiciary playing a part in the enforcement and vindication of such rights? Each of these issues will now be addressed in turn, so that we can then move onto the substantive enterprise with the terms of reference, as it were, clarified.

1.1.1 Defining socio-economic rights

As to the first point, there is significant diversity in the ways in which different commentators refer to the rights which are the subject of this study. Commentators refer, variously, to: social rights, welfare rights, economic, social and cultural rights and, somewhat misleadingly, positive rights.¹⁰ There is little or no explicit basis for choosing one nomenclature over the others, and preference tends to be conditioned by either geographical or disciplinary background; with US commentators generally preferring the term welfare rights,¹¹ British commentators, and social philosophers in general, preferring social rights,¹² and those most au fait with international human rights law opting for the more expansive economic, social and cultural rights.¹³ They all refer to the same thing(s), namely ‘rights to the meeting of needs, amongst which the most important are the right to a minimum income, the right to housing, the right to health care, and the right to education’,¹⁴ but do so in different ways. And while very little turns on the differing terminologies, I will, for the sake of completeness, explain why the term socio-economic rights is preferred here.

On a very base level, one of the reasons for preferring the term socio-economic rights to the other terms on offer is to make clear that cultural rights, although immensely important in their own right, are not the concern of this study. At a higher level, the term socio-economic rights is preferred here because it ‘reflects the inextricable link between the economic and social policy fields’ and the law,¹⁵ and therefore brings to the fore the relevance of socio-economic rights to the social and economic status of rights claimants, and the implications that the assertion of such rights has for power relations within societies. Furthermore, the term is understood, both by the myself and others, to have myriad, context-sensitive, dimensions to it. As Ellie Palmer notes:

Thus, in human rights discourse it is a normative construct that conveys the idea that within a framework of fundamental human rights values, the repositories of collective power have corresponding moral obligations to protect the social and economic welfare of individuals in their jurisdictions. Secondly, it connotes a set of legal rights, for example rights enshrined in treaties such as the ICESCR … which impose corresponding legal obligations on states for their realisation. Thirdly, the term socio-economic rights may be used to connote legally enforceable individual entitlements … to public welfare provision.¹⁶

It is because it captures these different dimensions of the rights under consideration, and because it more readily signals the implications which these rights have for social and economic policy, that the term socio-economic rights is preferred here.

As understood here, socio-economic rights are those rights which are concerned ‘with the material bases of human well being and include the rights to shelter, to a job under decent working conditions and to subsistence’.¹⁷ More expansively they are ‘those human rights that aim to secure for all members of a particular society a basic quality of life in terms of food, water, shelter, education, health care and housing’.¹⁸ Regardless of how one catalogues such rights, they are concerned with the substance of human life, with the very basics necessary for human well-being. Such ‘substantive or material’ rights serve two important functions,¹⁹ as Keith Ewing puts it:

[Socio-economic] rights of a substantive or material nature are of two types, serving two related goals of equality of opportunity and social justice. So far as the former is concerned this is a question which invites measures of several different kinds, including those designed to eliminate irrational discrimination in terms of access to or participation in civil society, whether in the public or private sphere. But it also invites measures to secure the removal of barriers (based on disability, religion, race or parental status) which impede access to social benefits, and to ensure access to educational, training and employment opportunities to facilitate participation by the individual in civil society to the limits and extent of his or her ability … So far as the goal of social justice is concerned, as already indicated this relates to these matters which are designed to ensure that people’s basic needs are met, at a level which is appropriate for the community in which they live, that is to say at a level which in some objective way relates to the standards enjoyed by others. As a minimum this means either imposing on the State an obligation to guarantee, or conferring on individuals a right to (i) a minimum level of income while unemployed or incapable of work, and while retired from work; (ii) measures which ensure that people’s health needs are met and that they have access to health care facilities; (iii) the provision of adequate housing for citizens and their families; and (iv) the availability of a broad range of cultural, recreational and leisure facilities for those who feel the need to use them.²⁰

Socio-economic rights are therefore concerned with the material well-being of individuals and communities, and are, arguably, the necessary corollary of civil and political rights in a morally defensible political regime.²¹

While such rights, needless to say, are enjoyed by every member of society equally, they are of ‘particular relevance to marginalised and disadvantaged groups’.²² This is so for a number of reasons. First, because socially excluded individuals lack the very basics for the maintenance of a decent standard of living, the entrenchment of such rights, assuming that they are acted upon, results in their most pressing material needs being addressed. Furthermore, because such individuals tend to feel excluded from the political and democratic process, and thus tend not to participate in it, they are likely to lack a significant political voice to influence the formulation of governmental policy, which in turn leads to their further marginalisation and exclusion.²³ Ideally, the constitutional entrenchment of socio-economic rights would go some way towards mitigating this disparity, as the fact of such rights would ‘become part of the constitutional culture guiding policy-makers and administrators’,²⁴ thereby insuring equal regard for the interests of all sections of society in economic and social policy making. This, of course, is the ideal outcome following the recognition and entrenchment of socio-economic rights; it is by no means guaranteed. And this brings us on to the other sub-issues to be addressed in this section: why constitutionalise such rights and why insist on judicial enforcement of them?

1.1.2 Socio-economic rights as constitutional rights

As has already been said, the focus of this study is on constitutionally protected socio-economic rights, or rather judicial enforcement of constitutionally entrenched socio-economic rights. Consequently, legislative protection of social benefits is not considered. The reason for this is that the concern here is socio-economic rights as fundamental rights, whether constitutional or human, not necessarily as Dworkinian trumps, but as being in some sense deserving of special protection, as distinct from legislative benefits conferred on a discretionary basis, and consequently subject to revocation. Such constitutional socio-economic rights impose substantive, binding obligations on states to provide for the social and economic needs of the people whom they govern, as opposed to simply imposing a moral obligation on the state to do so,²⁵ and should be distinguished from mere legislative welfare entitlements, which are essentially discretionary in nature.²⁶ There are two primary reasons why socio-economic rights should be protected at the constitutional as opposed to the legislative leve...