While the status of civil and political rights as human rights is largely uncontested, this is less true for economic, social and cultural rights’. Critically discuss.

INTRODUCTION

ESCR have a powerful genealogy within the evolutionary history of universal human rights.[1] Indeed, in the very birthplace of human rights, in the Europe and America of the18^th century,[2] ESC rights were recognized as part of the essential purpose of human society, to develop the moral and physical capacities of individuals and to dispense social justice.[3]

Tracing the intellectual lineage of the international human rights movement, it is found to be a firmly embedded dogma that all human rights are interdependent, indivisible, interrelated, and consequently, are deserving of equal respect.[4]

Hence, at the time of drafting the Universal Declaration on Human Rights in 1948, all human rights were enshrined in the document, together forming an interrelated and mutually reinforcing normative framework for realizing the ideal of the free human in modernity.[5] However, this elusive consonance of worldviews was soon disrupted in the course of framing legal obligations to effectuate the proclamation. This resulted from interplay between the dominant global political forces at the time. The process of positivisation thus ended with the creation of two separate covenants, the International Covenant for Civil and Political Rights and the International Covenant for Economic, Social and Cultural Rights, demoting ESC rights to relative inferiority, and imposing on these rights a second-class status compared to their CP counterparts.

This divide arose at the time because the UN intended a pragmatic compromise in the face of the vicissitudes of inter-state politics. The repeated affirmation by the UN of the indivisibility of human rights is not a matter of mere rhetoric. Even at the time of deciding to make two covenants, the GA passed a resolution affirming the indivisibility of the rights, and the UN has maintained this position at all levels of its operation.[6]

Recent developments have aimed to reinstate the ESC rights to their deserved status in the human rights framework. The changes have been interpreted in many quarters as having largely dissipated the concerns regarding the comparative status of ESC rights.[7] However, the historic imbalance has set ESCs on a different trajectory, and complete realignment of the two categories of rights will require more than redrawing of technical demarcations. Across the spectrum of actors in the international community, the prevalent view is, as Theo van Boven has observed, ‘‘while the status of Civil and Political Rights as Human Rights is largely uncontested this is less true for Economic, Social and Cultural Rights… [which] are sometimes referred to as ‘aspirations’ phrased in terms of rights but without legal enforceability.’[8]

The purpose of the present analysis is, firstly, to evaluate the extent to which it is correct to assert that the ESC rights continue to have a second-class status within the framework of international human rights law. The second part of the analysis examines the justifications offered for any continued subordination of ESC rights. This involves an appraisal of the full range of conceptual and practical objections that are invoked by opponents of the view that ESC rights are genuine human rights. The overarching thesis advanced through this discussion is that the perspective that ESC rights are not human rights on account of their dubious legal effectuality is fundamentally misconceived. The legalistic conceptualization of human rights is rejected in favour of a more holistic view of human rights as universal moral precepts sanctioned by law. A limited judicial role is envisaged, and in this regard, the jurisprudence of the Constitutional Court of South Africa is discussed in some depth, given that its adjudication on ESC rights is the most progressive among contemporary courts, and is demonstrative of a legitimate judicial contribution to the protection, promotion and fulfillment of ESC rights.

Before embarking on the analysis, it is necessary to address the preliminary issue of how the terms of reference are being used. Crucially, it must be asked when a right may be said to have the status of a human right.  Van Boven makes his observation in the context of how this category of rights is popularly perceived by the international community, including state and non-state actors. The relegation of ESC rights to a lower status is attributed to their general non-legal status and the unavailability of remedies for violations of such rights.[9]

Secondly, the categories ‘civil and political rights’ and ‘economic, social and cultural rights’ refer to the rights as contained in the International Bill of Rights, constituting the Universal Declaration on Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Since its inception, the International Bill of Rights has been extensively elaborated and reinforced through conventions and declarations, both at the universal level, by the UN, and the regional level, in the African, European and Inter-American legal systems.

Having defined the parameters of the controversy to be evaluated, it is now possible to commence with the evaluation of whether the ‘human rights’ status of ESC rights is indeed more dubious than that of CP rights.

ARE ESC RIGHTS HUMAN RIGHTS?

Van Boven observes the status of ESC rights from the perspective of those who are dismissive of these rights as human rights, on account of their characterization of a human right as a right that is legally enforceable and for the violation of which there is legal remedy. Therefore, the human rights’ status of ESC rights in this context will be evaluated in terms of the presence of a legal obligation on States, the form and efficacy of international monitoring mechanisms, the responses of domestic legal systems, in particular, the availability of redress for violations of rights.

In order to ascertain the nature and scope of the obligations imposed by the Covenants, it is necessary to trace the roots of this controversy in the political history of international human rights. This politico-legal backdrop is an important guide to the interpretation of the state obligations laid down in the foundational texts and subsequent developments.

Despite its non-binding nature, the UDHR was a crucial development as it contains the original design of the UN’s architecture for the international protection of human rights. As observed by O’Connell, the UN did not differentiate between the CP rights and the ESC rights at this nascent stage.[10] Ideology and politics were the decisive factors in the drafting of the two separate covenants, [11]  which had the ultimate effect of stratifying human rights and relegating ESC rights to the lower stratum.[12] Hence, the ICCPR and the ICESCR were formulated to guarantee their respective sets of rights.[13]

Against this backdrop, the language employed by the UN in the two Covenants must now be analyzed to determine whether the UN accorded primacy to one category of rights over the other.

Both covenants, in their preambles acknowledge that ‘the ideal of free human beings…can only be achieved…if everyone may enjoy his economic, social and cultural rights, as well as his civil and political rights.’ However, beneath this similarly composed topsoil, the groundwork of the two covenants seems to include qualitatively different levels of state obligations and different monitoring mechanisms.

The obligations imposed on states by the ICESCR are said to compare quite poorly with those in the ICCPR. Art. 2 of the ICESCR provides that each State Party to the Covenant had undertaken 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.[14]

While the language has been generally criticized as ‘vague’[15] and ‘imprecise’[16], what most academics take particular objection to is the core terms, that are so indefinite that they invite contestation as to meaning, including ‘maximum available resources’ and ‘progressive realization’. Craven[17] echoes this view, arguing that the use of such obscure language, convoluted phraseology and numerous qualifying clauses eludes any real sense of obligation. Indeed, he argues, it is possible to conclude from the text that states are given free rein to decide how the rights are to be implemented. Alston has gone further and argued that the underdeveloped justiciability of ESC rights is to be attributed to this ambiguous language, which detract from the normative implications of the provision.[18]

There is certainly merit to these critiques. The undertaking for progressive achievement implies there are no immediate obligations flowing from the covenant. The reference to maximum available resources further qualifies the obligation in the absence of any direction as to how resources are to be quantified for the purposes of this analysis.

This is a further source of obfuscation in that it is unclear whether these rights are to be regarded as justiciable and whether violations were envisaged as being judicially or otherwise remediable. The Committee on Economic, Social and Cultural Rights has acknowledged that the requirement for progressive realization of ESC rights is underpinned by recognition of the fact that full realization will generally not be possible in the short term. Similarly, resource constraints have clearly been accepted as further delimiting the scope of the requirement.

By contrast, the obligation on State parties to respect and ensure CP rights as contained in Art.2 of the ICCPR requires immediate fulfillment. The requirement to adopt legal and other measures is immediate, and there is explicit provision for addressing allegations of violations of rights as well as effective remedies, with an explicit contemplation of a judicial role in these processes.

Prima facie, there are glaring differences in the quality and scope of obligations imposed on states by the two covenants. However, a closer analysis that draws on subsequent developments is necessary before a conclusion can be reached as to the comparative status of ESC rights in this regard.

In examining whether there are any obligations on states to uphold ESC rights, it must first be noted that the UDHR imposes at the very least, a moral obligation to this effect. Moreover, under Art.2 of the ICESCR, states have a legal obligation to take steps to achieve progressively the full realization of the Covenant, using their maximum available resources.

As noted earlier, the requirement for progressive realization seems to imply that states have no immediate obligations under the covenant. Foremost, it would be inaccurate to suggest that the ICESCR does not create any immediate obligations on State parties. As the Committee has recognized, there is a necessary baseline that must be ensured even in times of severe resource limitations which the requirement of non-discrimination.[19] The Committee has further identified that the two Covenants are comparable in that the ICESCR also generates a number of obligations that can take immediate effect, and are also apt for judicial determination, including the elimination of discrimination, the provision of free and compulsory primary education for all, among others.[20]

Moreover, as the CESCR has clarified, the concept of progressive realization merely acknowledges that the full realization of the stated objectives will usually not be possible in the short run. This is to be understood in the context of the overall purpose of the covenant which is to create legally binding obligations upon states. Hence, resource constraints do not afford a general exemption. Obligations under the ICESCR are immediate, just as those under the ICCPR, with the only limit arising in the context where resources are required for the fulfillment of the obligation and are unavailable.

As to the substance of the obligation that is immediately effective barring resource constraints, it is implied that countries with greater resources have higher levels of immediate obligations. This is not indeterminate and can be ascertained by standard indicators like the GNP. What is relevant is the total resource available to the country, not what is publicly owned. Implementation of the covenant may require individuals utilizing their own resources or the government effecting a redistribution of resources, depending on the facts. Hence, the obligation is sufficiently determinate for violations to be identifiable. Not only are there minimum obligations that all states must fulfil with current resources, but there is also an obligation to progress towards enhanced fulfillment.

A bifurcate analysis of state obligations under the ICESCR into ‘obligations of conduct’ and ‘obligations of result’ lends greater clarity.[21] The obligation contained in Art.2 of the ICESCR that requires states ‘to take steps’ towards the realization of rights is an obligation of conduct and as such, it takes immediate effect. On the other hand, the realization of the rights will generally entail an obligation of result, which may be progressively attained.[22] According to the CESCR, the steps are to be taken within a reasonably short time after the Covenant takes effect and must be deliberate, concrete and targeted.[23]

On the questions of justiciability and remedying violations, there have been important developments. Experts convened by the International Commission of Jurists in 1986 authoritatively elaborated on the obligations under the ICESCR. They formulated the Limburg Principles within which it is stated that although the rights of the covenant are to be progressively attained, some of these rights were immediately justiciable at the outset while others would become so over the process of full realization.[24] The Maastricht Guidelines were formulated a decade later which addressed ambiguities relating to violations and remedies. Both these developments have been substantially adopted in the practice of the CESCR.[25]

In light of the above analysis, there is little scope to argue that there is no legal obligation on states under the ICESCR. While the obligation under the ICESCR is more qualified than that under the ICCPR, to the extent that ESC rights’ status as human rights depends on their entailing an obligation on states, these rights undeniably meet that criterion.

The second reason advanced for the greater contestation as to the status of ESC rights is the contrasting monitoring mechanisms for the two Covenants. The monitoring mechanism of the ICCPR is said to far supersede that of the ICESCR, in terms of both scope and efficacy. This is often taken up by commentators as evidence of the secondary status of ESC rights.

The two sets of mechanisms for monitoring the implementations of the two respective covenants are dissimilar in a number of ways. The most significant differences are, firstly, the status and nature of the monitoring bodies assigned to each Covenant, the reporting mechanisms and the inclusion of a complaints mechanism in the ICCPR, but not in the ICESCR.[26]

The Human Rights Committee, which is a treaty-based body comprised of an independent body of experts, is responsible for overseeing the implementation of the ICCPR, and monitoring the operation of CP rights in member states. By contrast, a subsidiary body of the UN General Assembly, the UN Economic and Social Council (ECOSOC) was initially assigned the role of oversight with respect to the ICESCR. However, the ECOSOC was discharged from this duty due to its inefficiency, and was replaced by the Committee on Economic, Social and Cultural Rights (CESCR or the Committee).[27]

The composition and independence of this Committee has greatly enhanced the status of the ICESCR. This is so despite the fact that it is ultimately subservient to the ECOSOC, which has power to alter the Committee’s composition and operations. However, even without the secure status of being a treaty-based body, the Committee is prevalently deemed to function on a par with other monitoring bodies overseeing the observance of global human rights obligations.[28]

In accordance with Art.16 of the Covenant, the monitoring mechanism for the ICESCR operates on the basis of State-reporting whereby States are required to submit ‘reports on the measures which they have adopted and the progress made in achieving the observance of the rights’ contained in the covenant. The Committee considers these reports and on their bases, prepares concluding observations and comments that are intended to evaluate the State’s performance and provide recommendations for improvement. These are not legally binding on the States, but as O’Connell has phrased it, they nonetheless enjoy a special status.[29]

The non-binding nature of the Committee’s communications has informed the view that ESC rights are not ‘real’ rights having either recognition or consequence in law. The Committee has attempted to refute this view by stating that ‘it is incorrect to assume that reporting is essentially only a procedural matter designed…to satisfy formal obligation[s], rejecting the notion that they are merely ‘paper tigers’.

At its inception, the ICESCR did not allow an individual complaint mechanism whereby victims could bring allegations of breaches of these rights before the Committee. By comparison, the ICCPR has, from its very outset, established an individual complaint mechanism through its First Optional Protocol, whereby the HRC is a competent authority for receiving and considering communications from individuals alleging infractions of the Covenant rights. This was also a further avenue for unfavourably distinguishing ESCR from CPR.

However, this relative weakness of the ESCRs’ framework was later addressed with the adoption of an Optional Protocol allowing individual complaints from victims of breaches of the ICESCR.[30]  The entry into force of this Protocol in May 2013 was the result of a protracted process that dates back to at least 1991.[31] The adoption of the protocol is recognized as a major advancement in the implementation of the ICESCR. Many have hailed it as a substantial contribution towards the full realization of ESC rights.[32] Supporters of the OP-ICESCR are also confident that it will pave the way towards improved implementation and greater attention from States.[33] However, others have been less optimistic. Mahon[34], for instance, has identified the use of ‘government-friendly’ language with regard to the ‘examination of communications’ as significantly diluting the strength of the Committee’s potential for effective oversight. This could ultimately defeat the purpose.

On a balance, it would seem that international monitoring mechanisms for the two Covenants are comparable to each other. There is no significant basis for distinguishing the two, and hence, by this criterion also, the reason for contesting ESC rights’ status has diminished.

The final criterion whereby human rights’ status is assessed is the availability of redress at the domestic level for infractions of the right. In this regard, it is important to examine the regional and national applicability of ESC rights.[35]

The CESCR has recognized the primacy of national remedies. It has stated that notwithstanding the development of international complaints mechanism, it is the availability and efficacy of national remedies that is the primary protection for ESC rights.[36] It has placed particular emphasis on the importance of judicial remedies for reinforcing or complementing the ICESCR.[37]Despite this pronouncement, the domestic jurisprudence on ESC rights is quite scant.

There are various methods for protecting ESC rights in national legal systems. This could be done by entrenching such rights in the constitution, through ordinary statutory enactments or through other national institutions.

ESCR are protected by an array of measures. In some countries, some such rights are enshrined in constitutions, enacted by parliaments and even originate in collective agreements between employers and employees. There is also great variation as to the justiciability of these rights, although a subset of such rights will often be justiciable.[38]

Domestic constitutional arrangements determine the means whereby international treaties on ESC rights can become applicable. In certain cases, whether on account of monism or treaty-specific provisions for automatic incorporation, such treaties also become applicable in domestic courts. States like the UK, Sweden and Canada have adopted the ICESCR through legislative transformation. Others like Afghanistan, Columbia and Luxembourg have adopted the Covenant into their national legal systems. Courts will generally opt for interpretations of domestic law that are compliant with the state’s international obligations.

Occasionally, such constitutional clauses and incorporation may give rise to subjective rights that are actionable in courts of law. This has been the case with Art.13(1) of the European Social Charter and Art.26 of the ICCPR, for instance. Statutory subjective rights have also arisen in a number of national jurisdictions, as in the Nordic countries.

It is still uncommon for ESC rights to be entrenched as justiciable rights in national constitutions. Liberal ideology continues to pervade instruments the Bill of Rights, which are generally perceived as shields against the tyranny of the state rather than as swords for vindicating individual entitlements from the state. The United States’ Bill of Rights is an eminent example. By contrast the Bill of Rights of the 1996 South African constitution entrenches ESC rights as directly justiciable rights.

The dominant approach in comparative constitutional law is to interpret provisions on CP rights expansively so as to indirectly extend protection to ESC rights. Examples may be found in the US, Canada, Germany and India. Constitutional protection for ESC rights has also been rendered through directive principles or legislative commands. While such objective norms do not generate subjective rights, they offer some measure of protection as interpretive guides for the exercise of judicial or executive powers. Such an approach has been taken in Germany and India.

Legislative protection for ESC rights is specifically emphasized in Art.2 of the ICESCR and the CESCR has also stated that statutes are generally apt for this purpose, and in certain cases, it may even be essential.[39] The crucial aspect in domestic applicability is the efficacy and expediency of remedies. As the CESCR has noted, in some cases, administrative remedies may be most suited to this purpose.[40]

There is a clear disparity as to the level of domestic protection afforded to ESC rights, as compared to CP rights. Hence, in this context, there is basis for contesting the status of ESC rights as human rights more seriously.

ERASING THE DISCREPANCY: RECONCEPTUALISING HUMAN RIGHTS

Despite the advancements in according ESC rights with the same status of CP rights, there remains a glaring disparity in terms of the measures adopted at the domestic levels for upholding the former category of rights.

There is a complex, intertwined web of objections to the enforcement of ESC rights, stemming from a foundational conviction that ESC rights are not ‘real’ rights but are ‘aspirational goals’ to be achieved over time. The objections are eclectic in that they draws on philosophy, politics, economics, jurisprudence and the pragmatics of state administration and governance. Nevertheless, it is possible to unravel these objections into two distinct strands. First, there are conceptual objections to the judicial enforcement of these rights, based on points of principle. These include arguments of immutability, cultural orientation, the appropriate role of the state and ideological traditions prioritizing freedom and equality. The second strand comprises the range of practical concerns that arise from such enforcement. These include concerns with implementation, justiciability, violations and resources.[41]

The perceived immutability of CP rights is one of the chief conceptual bases for distinguishing ESC rights and denying them judicial protection. Following the natural law philosophy, proponents of this view argue that CP rights derive from the permanent and immutable nature of human beings, and are inherent in natural justice. This is contrasted with ESC rights which are said to evolve with changing societal conditions. However, this is a purely subjective conviction and cannot withstand scientific scrutiny. Perspectives from sociology and evolutionary biology suggest that codes of human behavior like human rights are the product of cultural evolution. The most profound ideas of religion, politics, justice and human rights are ultimately socially constructed over the ages. This is evident in the history of the human rights movement itself.[42] Fundamental civil and political norms have clearly evolved with changes in social conditions. Torture, slavery and colonization are stark examples. By contrast, aiding the weak and inform is a norm that has existed since time immemorial. Therefore, it cannot be argued that ESC rights should not be preserved because this would hinder the development of society. All categories of human rights are impermanent but are nevertheless deserving of protection as they signify the progressive sophistication of civilization.

The cultural penetration of Western modernism is the pervasive force that is often said to have elevated CP rights to prominence across politico-legal systems of the world. Asian values of familial allegiance and communal values of Africa are said to have been eclipsed by Western notions of individual autonomy and freedom. However, this ‘clash of civilizations’ thesis[43] inaccurately reduces entire cultures to a definitive set of norms.[44] The values enshrined in the UDHR are just as entrenched in Asian thought.[45] Similarly, ESC rights are not based exclusively on Eastern traditions. Hence, the view that ESC rights are culturally incongruous with the West cannot be supported.

The third conceptual objection to ESC rights is founded upon particular view of the appropriate role of the state vis-à-vis the citizenry and the nature of the obligations engendered by the two categories of rights. It is argued that the characters of the obligations entailed by the two sets of rights are ‘inherently different’[46] in that the CPR impose negative obligations and are consequently readily enforceable[47], while the obligations for ESCR are positive, and are therefore ‘wholly unsuited to judicial enforcement’.[48]

The supposed disparity in the quality of state obligations it the product of a gross oversimplification and it has resulted in variant levels of enforcement.[49] The proposition that CPR entail purely negative obligations while ESCR impose positive duties requires closer scrutiny[50].

It is the individual who is the focal point of the ameliorations of economic and social conditions.[51] Individuals are generally expected to fulfil their own needs, using the resources available to them, and they usually engage in economic and social activities within pre-existing economic and social systems, respectively. State obligations operate within this matrix and as such can manifest alternatively as an obligation to respect, to protect or to fulfil. The obligation to fulfil may be further deconstructed to an obligation to facilitate and an obligation to provide.[52]

The obligation to respect would require States to refrain from encroaching upon resources owned by an individual or obstruct an individual’s economic activities. Under the obligation to protect, the state would have to guard the individual’s rights against infringement by other subjects. Finally, the obligation to fulfil entails either an obligation to facilitate the individual’s endeavors to fulfil his/her needs[53] or an obligation to directly provide for the fulfillment of these needs, the latter arising in exceptional situations, such as recessions or with respect to marginalized members of the society.

Hence, the three-part deconstruction of obligations under human rights dissolves the false dichotomy of rights and thereby greatly attenuates the argument that ESCR cannot be judicially enforced and in recent literature, there is wider acknowledgement that the obligations under ESCR and CPR have both positive and negative dimensions.[54]

The final conceptual objection is rooted in a political ideology which favours freedom and equality. Cranston, for instance, adopts a classical liberal approach to argue that CP rights are real rights while ESC rights are aspirations.[55] However, the social and international order envisaged in Art.28 of the UDHR is one which will navigate beyond the compass of left and right political ideologies. Such a holistic approach must restrain excessive ideological propensities of regimes and collapse all sub-categorisations of human rights.

There is a myriad of practical concerns regarding the enforcement of ESCR. They can be broadly classified as involving objections as implementation, justiciability, violations and resources.

The argument against the implementation of ESC rights is based on Art.2 of the ICESCR which calls for progressive implementation, which contrasts with the immediate enforceability of CP rights. However, not only do CP rights require progressive measures such as the training of prosecutors and law enforcement officials, capacity-building of adjudicatory bodies and conduction of free and fair elections, ESC rights do require immediate compliance with regard to non-discrimination, minimum core obligations and taking steps towards realization.

The objection based on the purported non-justiciability of ESC rights is complex. Essentially, ESC rights are regarded as programmatic or aspirational. Art.2(3) of the ICCPR is invoked in this regard, as it explicitly refers to the need for effective remedies where CP rights are violated. There is no equivalent of this provision in the ICESCR and this is taken to indicate that ECS rights are not legally actionable. This view is then logically extended to further assert that the judicial enforcement of such rights would be a fundamental assault on democracy, and would require judges to go beyond their remit, transgressing the limits set by the doctrine of separation of powers.[56] Academics like Sunstein are of the view that the continued exclusion of ESC rights from the category of justicible constitutional rights is appropriate.[57]

However, this is ultimately a question of the precision of the legislation conferring a right and the extent to which the judiciary is mature enough to assess such a dispute. Whether the right protects individual autonomy or guarantees a socio-economic service, its substance has no bearing on whether it can be litigated upon. Moreover, the fact that the ICCPR also calls for institutions to develop possibilities of judicial remedies signifies that even CP rights will not always be immediately justiciable. Moreover, while it may be desirable to not allow an immediate cause of action to arise while the implementation of a scheme pursuant to the state’s obligation to fulfil is still underway, there is no reason why the obligations to respect and protect cannot be justiciable. This view was reinforced by the Committee which stated that neither the nature of the rights nor the relevant provisions of the Covenants could be taken to support a view that CP rights are judicially remediable while ESC rights are not.[58]

One of the chief problems in relation to the judicial enforcement of ESCR is, as identified by Scott and Macklem, the imprecision that blurs the nature and extent of the obligations on State parties.[59] However, O’Connell demonstrates the circularity of this argument, stating that the dearth of jurisprudence clarifying the obligations under ESCR has resulted precisely from the lack of judicial engagement with these rights, which has not been the case for CPR. Hence, this is hardly a justified critique of ESCR rights, much less an irremediable problem. Coomans has argued in similar vein that ESCR have remained largely meaningless in practice due to the neglect these rights have been historically subjected to.[60] Indeed, commentators like Bilchitz have gone so far as to assert that the judiciary has shirked its responsibility with regard to ESCR and it is incumbent upon it to provide authoritative clarification of the extent of the obligations associated with these rights.[61]

However, opponents of this view have maintained that constitutional protection for ESCR is at ‘fundamentally at variance with democracy’[62] and would inevitably weaken the separation of powers. However, this line of reasoning is flawed in that in it draws a false demarcation between ESCR and CPR. As O’Connell has argued, if judicial enforcement is inappropriate for ESCR because the elected branches of the government are apt for effectuating these rights, then core CPR should also not be judicially enforced, by parity of reasoning, as there is no logical basis for distinction.

Judicial competence is another question of severe contention. It is argued that ESCR are inextricably linked to economic and social policies, which the judiciary is ill-suited to consider. The government’s priorities for the nation’s future require budgetary planning which could be unsettled by adjudication on ESCR. Reallocation of resources by judges, given they are unaware of the broader context of state administration, is thought to be disruptive and damaging to the state and its citizenry as a whole. This is the polycentricity argument, according to which such decisions have incalculable costs for the executive, in terms of resource redistribution for its priorities. The fear lies in the threat of an eventual ‘judicial dictatorship’ where the judiciary would assume control over policy-making and ultimately arrogate to itself core executive functions such as the control of the budget.  However, as O’Connell has argued, such concerns have been unduly amplified, since the judiciary does not possess such draconian powers and in any case, solely judges are not charged with remedying breaches of the covenant.

Closely related to the question of constitutional capacity is the accountability mechanism for the different state organs. It is argues that the legislature is apt for the realization of ESCR given that this body is the elected representative and it can therefore legitimately uphold the will of the people. Its oversight of executive implementation of ESCR serves the need for scrutiny without destabilizing the constitutional balance of powers.[63] In contrast, the judiciary are appointed, and not elected, and therefore, judicial pronouncements on the ambit of ESCR do legitimately reflect the will of the people. The judiciary is unaccountable, and its assumption of such a role of oversight in relation to ESCR would contravene the bounds of constitutional propriety.[64]

However, these concerns are greatly exaggerated and lack intellectual honesty in the analysis of the judicial role vis-à-vis the legislature and the executive. The political reality is the accountability mechanisms for the elected branches are deeply flawed. Moreover, there are mechanisms for scrutinizing the judiciary, and therefore, it is inaccurate to argue that the judiciary is entirely unaccountable.[65]

Closely bound to the issue of justiciability is the question of violations. The view here is that there can be violations of CP leading to accountability mechanisms that apprehend and bring to justice the violators of these rights. by contrast, ESC rights are programmatic. The language of violations is deemed inappropriate here, and instead, such rights are said to be better suited for assessment in terms outcomes of programmes and efficacy of services. However, not only are programmatic approaches to CP necessary in training, legislating and establishing prevention programs, the violations approach is necessary for ESC rights where the state is the direct cause of famines, preventable epidemics or similarly grave crises.

In fact, this question was specifically addressed in the Maastricht Guidelines. The experts affirmed the equal status of all human rights, and emphasized that state responsibility for violations of ESC rights is the same as for violations of CP rights. they stated further that a state violates its obligations under the ICESCR wherever it adopts a policy or engages in a practice that deliberately contravenes or disregards the Covenant or fails to meet the prescribed standards of conduct and result.

The final practical objection to the enforcement of ESC rights concerns resources. It is argued that as CP rights entail negative obligations, they do not require resources while ESC rights, imposing positive obligations, are resource-intensive. It has also been argued that ESCR require an elaborate mechanism for resource allocation, which makes them unsuitable for judicial scrutiny.[66] The untenable nature of the distinction between positive and negative obligations has already been demonstrated. Moreover, as Shue has noted, the extent to which a program is more expensive or complex results from the contextual dimensions of the problem, not in any inherent negativity of security or positivity of subsistence.[67] Moreover, as Holmes and Sunstein’s analysis reveals, all human rights are resource-intensive and require governmental management.[68]

Moreover, CP rights are also often limited by budgetary constraints and are nevertheless judicially enforced. There are further arguments based on overly simplistic views of the obligations under ESCR and possible judicial remedies in response to violations. It is argued that ESCR are positive, and the judicial can only impose ‘mandatory orders’ in response to breaches.[69] These views are based on manifestly erroneous misconceptions, and as O’Connell states, these are more ‘hyperbolic than substantive.’

Hence, while ESC rights have largely been recognized in formal legal fora as having the status of human rights, national legal systems remain resistant to giving these rights domestic effect. On most grounds the controversy has abated. Nevertheless, in domestic legal contexts, the controversy remains very much a live issue.

As the foregoing discussion has revealed, there is no cogent reason for denying ESC rights domestic applicability. Moreover, the argument that ESC rights can be effectively protected by judicial oversight is not merely theoretical. As the South African context demonstrates, the constitutional and judicial protection of ESC rights can be effectively secured without upsetting the constitutional balance of powers or requiring the judiciary to arrogate to itself powers that properly belong to the legislature or the executive.

The 1996 South African Constitution entrenches both CP and ESC rights as directly justiciable rights in its Bill of Rights. The Constitutional Court has affirmed that the obligation to respect is the bare minimum that is justiciable with regard to all ESC rights.[70] The courts have also extended protection to oblige the state to fulfil its positive obligation in respect of a number of rights including the right to basic education.[71] However, the court has not encroached upon executive terrain. As the Soobramoney case illustrates, the courts have been appropriately respectful of constitutional limits. The court qualified the positive obligations, affording the local government a large measure of discretion in budget planning in the face of resources constraints.[72] The Court has also extended oversight to cases of progressive implementation of socio-economic schemes and resource allocation.[73]

Both the provisions on standing and the remedial powers of the courts are broadly framed. Statutes which are found to be inconsistent with the constitution are to be declared invalid insofar as they are inconsistent. Moreover, courts are empowered to make any order that is ‘just and equitable’[74]  and the court may continue to exercise a supervisory jurisdiction over the implementation of any remedy.[75]

The South African experience is a testament to the judicial capacity for contributing to the realization of social visions without undermining the democratic legitimacy of the judicial role.[76] While the courts did later revert to a more deferential model,[77] its jurisprudence emboldens the claim that ESC rights can be legitimately protected by adjudication.

The resistance to ESC rights ultimately flows from an undue fixation on unyielding doctrines of the separation of powers and the role of the state in human society. In the face of firmly held convictions in either side of the contestation, there is a need to return to the fundamentals of theory that underpin these arguments.

A combative model of executive, legislative and judicial roles wherein the state functions are maintained in rigid compartments must be revised to allow a cooperative enterprise between the branches of the state. Human rights must be accorded their due primacy, and to this end, constitutional roles and powers must be readjusted as required.[78] A mutually interactive model, referred to as a constitutional dialogue between the three organs of the state, allows the state to function as a coordinated whole while preventing the centralization of powers in any one organ.[79] A dialogic model of judicial review would not undermine democracy. Rather, through the maximization of institutional strengths, such an approach would fortify democracy.[80]

While one must be wary of models that claim universal application,[81] it is possible to postulate, on the basis of the above analysis, principles of universal relevance in the vindication of ESC rights.

It is an incontrovertible truth across legal systems worldwide that the judicial process is not a panacea for the implementation of human rights.[82] However, as Cottrell and Ghai have rightly noted, the judicial role in indispensable as it provides authoritative explication of the contents of rights, delineates state responsibilities, identifies violations and provides insight for framing policies.[83] The crucial point to be emphasized here is that judicial oversight is a final frontier of protection. it signifies the outermost boundaries of the latitude given to the state in arranging administrative priorities. However, the fundamentality of ESC rights, that is, their status as human rights, must be recognized as being independent of the manner of protection adopted in any given constitutional system.

The vindication of ESC rights at the domestic level must span both public and private institutions, including national human rights institutions, ombudsmen, public interest groups and the civil society more broadly. The CESCR has emphasized the importance of such institutions in promoting, overseeing, assisting, identifying benchmarks, conducting research, monitoring compliance and examining complaints in relation to ESC rights.[84]

The South African context is again instructive on this point. The constitution entrusts the  South African Human Rights Commission with the role of amassing information on state organs’ measures towards the realization of ESC rights.[85] This information should then inform a range of activities including reporting to the Parliament and the President, making recommendations to the state organs, providing assistance to individuals whose ESC rights have been violated and aiding them to seek redress and leading research and investigations.

Thus, the Commission is a powerful adjunct to judicial oversight. Its authoritative repository of information is invaluable to accountability processes, both judicial and non-judicial, while its monitoring role addresses the limits of the judiciary in supervising progressive realization. Moreover, its holistic powers facilitate the identification of defective institutional frameworks and structurally embedded practices that are violative of ESC rights, and this is a unique and vital role that is generally left unfulfilled by other state organs.[86]

There is clear scope for fortifying the role of such commissions and developing the relationship between these bodies and the courts. It is possible to envisage a model where such a commission may be responsible for overseeing the implementation of court orders or utilizing damages awarded and entrusted to it for the purposes of furthering the realization of ESC rights. The monitoring function of such commissions can also contribute to the  refinement of the substance of ESC rights. This model should also be further expanded to engage the civil society in developing norms and scrutinizing the implementation of ESC rights.

Despite proactive affirmations of the human rights’ status of ESC rights in the sphere of international law, the international community has generally remained unreceptive to this charaterisation. Actors across international and domestic levels, and within both public and private spheres, commonly associate human rights status with CP rights, identifying their attendant legal consequence as crucial qualifying criteria for a right to be labeled a human right. The prevalent domestic inapplicability of ESC rights remains as a basis for contesting the status of these rights as human rights.

However, not only is this a fundamental misconception of the essence of human rights, it is dangerous misconception that threatens to overturn the progress made since the 1960s in the avowal of a universal normative vision of the free human being in modernity. The very purpose of framing a universal code of human rights was to shield against oppressive and exploitative regimes. Irrespective of political ideology, cultural traditions and socio-economic conditions of life, the human rights’ regime created a new world order, a supranational moral authority to which every national law was subject. It is ironic that we have now come to attach such importance to legal status as to forget that the international human rights order was built from the debris of a war wherein the most egregious violations of common humanity were committed by a regime that was as legally unimpeachable as it was morally depraved.

As van Hoof has recognized, the legal status of ESC rights is determinative of their applicability but has no bearing whatsoever on their validity.[87] However, at the opposite extreme it has been argued that ESC rights should be protected, but to do so by characterizing them as rights is not feasible.[88] While it is certainly true that ESC rights entail programmatic changes and aspirational goals, this does not preclude a legal dimension to these entitlements. This is especially vital to ensure that the primacy of these rights independent of changing political regimes. The argument advanced here is that a human right is not essentially, or even primarily, a legal right

What is advocated here is not so much a reconceptualisation of human rights as a revitalization of the original conceptualization of human rights. It is not enough for domestic legal systems to accord legal status to ESC rights for the universal solidarity envisaged by these rights to be achieved. A legalistic analysis of ESC rights misses the essential nature of human rights as ultimately universal moral precepts. Hence, to uphold these rights, it is necessary to ensure that there are effective mechanisms of protection. Legally binding obligations are but one aspect of an overall system of effective protection, albeit a crucial aspect. For ESC rights to be genuinely upheld as human rights, the international community must commit to the universal rule of law that encompasses all civil, political, economic, social and cultural dimensions of the human condition, and recognize that freedom for human beings requires the holistic betterment of these conditions. What is owed by society to the individual is not merely the restraint of abusive power, but the dispensation of social justice.

However, human rights require the concerted effort of the state and the society to be realized, not only isolated components of the state apparatus. Such a holistic approach can recognize the roles that NHRC and the civil society can play to address the legitimate concerns with exclusively judicial oversight. This role has not been effectively discharged because it has been possible for governments to falsely claim that ESCR are not human rights on account of supposed legal ineffectuality. However, not only are states under definite legal obligations with regard to ESCR, violations can be redressed without upsetting the constitutional balance of powers between state organs

The fact that the covenant does not replicate the language of the CP covenant should not be taken to mean that these rights are less important. Rather, this phraseology appropriately identifies the legal component within a matrix of political, social, moral and economic dimensions to the notion of human rights. And it is essential that this view is authoritatively promulgated and propagated so that all actors in the international community are equipped to assume their respective responsibilities in relation to the full realization of ESCR.

[1] B-A. Andreassen, ‘Article 22’, in: G. Alfredsson and A.Eide (eds.), The Universal Declaration of Human Rights: A Common Standard of Achievement, 1999, pp. 453-488.

[2] C. W. Jenks, ‘Human Rights, Social Justice and Peace: The Broader Significance of the ILO Experience’, in: A. Eide and H. Schou (eds.), International Protection of Human Rights, 1968, pp. 227-261.

[3] J. Locke, Two Treatises of Government, originally published in 1689.

[4] Stephen P. Marks, From the “Single Confused Page” to the “Decalogue for Six Billion Persons”: The Roots of the Universal Declaration of Human Rights in the French Revolution, 20 Hum. Rts. Q. 459 (1998)

[5] United Nations. ‘Universal Declaration of Human Rights: History of the Document’ (2016) <http://www.un.org/en/sections/universal-declaration/history-document/> accessed on 30 October 2017.

[6] World Conference on Human Rights, 1993, ‘Vienna Declaration and Programme of Action’ UN Doc. A/CONF.157/23 para 5

[7] Theo van Boven, ibid

[8]Theo Van Boven, ‘Categories of Rights’ in Moeckli, Daniel and others (eds), International human rights law (1st edn, Oxford University Press 2010).

[9] K Vasak, ‘Human Rights, A Thirty Years Struggle’ (Nov 1977) UNESCO Courier, pp 29-32.

[10]O’Connell (n 4).

[11] J Simsarian, ‘Progress in Drafting Two Covenants on Human Rights in the United Nations’, (1952) 46 AJIL 710 at 710-712

[12]Abdullahi A. An-Na’im, ‘To Affirm the Full Human Rights Standing of Economic, Social and Cultural Rights’ in J Cottrell and YP Ghai (eds), Economic, social and cultural rights in practice: the role of judges in implementing economic, social and cultural rights (Interights 2004).

[13]Henry J. Steiner, Philip Alston and Ryan Goodman, International human rights in context: law, politics, morals (3rd ed. edn, Oxford University Press 2008).

[14] ICESCR

[15] Jheelan

[16] C. Scott and P. Macklem, ‘Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights in a New South African Constitution’ (1992) 141 University of Pennsylvania Law Review 1.

[17] Matthew Craven, ‘The Justiciability of Economic, Social and Cultural Rights’, in Economic, Social and Cultural Rights: Their Implementation in United Kingdom Law, ed. Burchill, Harris and Owers (University of Nottingham Human Rights Law Centre, 1999) 1.

[18] P. Alston, ‘No Right to Complain About Being Poor: The Need for an Optional Protocol to  the Economic Rights Covenant’, in: A. Eide and J. Helgesen (eds.), The Future of Human Rights Protection in a Changing World, 1991, pp. 79-100.

[19] CESCR, General Comment 20, E/C.12/GC/20 (2009) para 7.

[20] CESCR, General Comment 3, HRI/GEN/1 (Vol 1) 7, para 1.

[21] Report of the International Law Commission (1977) 2 Ybk of the Intl L. Com 20 , para 8.

[22] P Alston and G Quinn

[23] General Comment 3

[24] The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN doc E/CN.4/1987/17

[25]Manisuli Ssenyonjo, ‘Reflections on state obligations with respect to economic, social and cultural rights in international human rights law’ (2011) 15(6) The International Journal of Human Rights 969

[26]Catarina de Albuquerque ‘Chronicle of an Announced Birth: The Coming into Life of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights-The Missing Piece of the International Bill of Human Rights’ (2010) 32(1) Hum Rts Q 144.

[27]Albuquerque.

[28] P. Alston and McCraven

[29] O’ Connell

[30]46 Center for Economic and Social Rights. ‘International Accountability – Optional Protocol’ (2016) <http://www.cesr.org/section.php?id=175> accessed on 1 November 2017.

[31]Albuquerque.

[32] O’Connell

[33]See Jan Kratochvil, ‘Realizing a Promise: A Case for Ratification of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights’ 16 (3) Human Rights Brief (2009) 30; and Pius Langa, ‘Taking Dignity Seriously – Judicial Reflections on the Optional Protocol to the ICESCR’ (2009) 27 Nordisk Tidsskrift For Menneskerettigheter, 29.

[34]Claire Mahon, ‘Progress at the Front: The Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ (2008) 8(4) Human Rights Law Review, 617. 52 Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (adopted 18 June 2008, entered into force 5 May 2013) UNGA Res A/RES/63/117 (OP-ICESCR)

[35] C Anselm Odinkalu, ‘Implementing Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights’, in M Evans and M Murray (eds), The African Charter on Human and Peoples’ Rights (Cambridge University Press, 2002) 178

[36] General Comment No.9 (1998) on the domestic application of the International Covenant on Economic, Social and Cultural Rights, para. 4. Report of the Committee on Economic, Social and Cultural Rights, UN doc. E/1999/22, pp. 117 – 121.

[37] General Comment No.9 para 3

[38] B. Bercusson, ‘Fundamental Social and Economic Rights in the European Community’, in: A. Cassese et al.(eds.), Human Rights and the European Community: Methods of Protection, 1991, pp. 195 – 290.

[39] General Comment 3, para 3

[40] General Comment 9, para 9

[41] Stephen Marks, ‘The Past and Future…’ – the development of IHRL

[42] Paul Gordon Lauren, ‘The Evolution of International Human Rights: Visions Seen’ (2^nd edn, 2003)

[43] Samuel P, Huntington, The Clash of Civilizations and the Remaking of World Order 71 (1996)

[44] Thomas M. Franck, Is Personal Freedom a Western Value?, 91 Am. J. Int’l L. 593, 608 (1997)

[45] Kim Dae Jung, Is Culture Destiny? The Myth of Asia’s Anti-Democratic Values, 73 Foreign Aff. 189, 190 (1994)

[46] O’Connell

[47] Jheelan

[48] O’Connell

[49] Wiles

[50] DJ Harris, Cases and Materials on International Law (6^thedn, Sweet & Maxwell, 2004) p 655.

[51] General Assembly Resolution 41/128 of 4 December 1986.

[52] CESCR, General Comment No. 12 (1999), para. 15.

[53] An example of such a duty is Art.11(2) of the ICESCR.

[54] Jheelan

[55] Maurice Cranston, Human Rights, Real and Supposed, in Political Theory and the Rights of Man 43-53 (D.D. Raphael ed., 1967).

[56] Jheelan

[57] C. Sunstein, ‘Against Positive Rights: Why Social and Economic Rights Don’t Belong in the New Constitutions of Post-Communist Europe’, East European Constitutional Review, Vol.2, No. 1 (1993), pp.35 – 38.

[58] General Comment 9

[59] Scott and Macklem

[60] Fons Coomans, ‘Some Introductory Remarks on the Justiciability of Economic and Social Rights in a Comparative Constitutional Context’ in F Coomans (ed.) Justiciability of Economic and Social Rights (Intersentia, 2006) 1.

[61] D. Bilchitz, ‘Giving Socio-Economic Rights Teeth: The Minimum Core Approach and its Importance’ (2002) 119 South African Law Journal 484.

[62] O’Connell

[63] Jheelan

[64] Ibid – jheelan

[65] M. Pieterse, ‘Coming to Terms with Judicial Enforcement of Socio-Economic Rights’ (2004) 20 South African Journal on Human Rights 383.

[66] Jheelan

[67] Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy 37 (2^nd ed. 1996)

[68] Stephen Holmes and Cass R. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes 48 (1999)

[69] O’Connell

[70] Ex parte Chairperson of the Constitutional Assembly: In re Certification of the Republic of South Africa, 1996, 1996(4) SA 744(CC)

[71] Ex parte Guateng Provincial Legislature: In re Dispute Concerning the Constitutionality of Certain Provisions of the Guateng School Education Bill of 1995, 1996 (3) SA 165 (CC)

[72] Soobramoney v Minister of Health, KwaZulu-Natal 1998 (1) SA 765 (CC)

[73] B and others v. Minister of Correctional Services and Others, 1997 (6) BCLR 789 (C)

[74] Section 172(1) of the 1996 Constitution.

[75] W. Trengove, ‘Judicial Remedies for Violations of Socio-Economic Rights’, ESR Review Economic and Social Rights in South Africa, Vol.1, No. 4 (March 1999), pp. 8 – 11.

[76] Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) South African Journal on Human Rights 146 at p.188

[77] Pierre de Vos, ‘South Africa’s Constitutional Court: Starry-Eyed in the Face of History?” (2002) 26 Vermont Law Review 837 at p.845

[78] M. Minnow, Making All the Difference: Inclusion, Exclusion and American Law, 1990, pp.361-362.

[79] C. Scott and J. Nedelsky, ‘Constitutional Dialogue’ in J. Bakan and D. Schmeiderman (eds.), Social Justice and the Constitution: Perspectives on a Social Union in Canada, 1992, pp. 59 – 83.

[80] Mark Tushnet, ‘Dialogic Judicial Review’ (2008) 61 Arkansas Law Review 205 at p.206.

[81] William Twining, General Jurisprudence: Understanding Law from a Global Perspective (Cambridge: Cambridge University Press, 2009) at p. 9.

[82] Lord Lester of Herne Hill and Colm O’Cinneide, ‘The Effective Protection of Socio-Economic Rights’ in Ghai and Cottrell (eds.), Economic, Social and Cultural Rights in Practice (London: INTERIGHTS, 2004) 17 at p.19

[83] Jill Cottrell and Yash Ghai, ‘The Role of the Courts in the Protection of Economic, Social and Cultural Rights’ in Ghai and Cottrell (eds.), Economic, Social and Cultural Rights in Practice (London: INTERIGHTS, 2004) 58 at p.86

[84] General Comment No.10 (1998) on the role of national human rights institutions in the protection of economic, social and cultural rights, para.3

[85] Section 184(3) of the Constitution

[86] S. Liebenberg, ‘Identifying Violations of Socio-economic Rights: The Role of the South African Human Rights Commission’, Law, Democracy and Development, Vol.1, (November 1997), pp. 161 – 191.

[87] G. J. H. van Hoof in: ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’, in P. Alston and K. Tomasevski (eds.), The Right to Food, 1984, pp.97 – 110.

[88] C. Sunstein, 8^th footnote in book