Transcript Slide 1

INDESPENSABILITY OF
ECONOMIC,
SOCIAL AND
CULTURAL
RIGHTS
State is made responsible, if
the law does not protect your privacy
your private land, unattended for several years, is
occupied by homeless people
you could not appoint a lawyer of your own choice
You are restricted to deliver a speech
Where is state? when;
• You are compelled to choose ‘illegal way’ in the
quest of basic means of subsistence.
• your pregnant wife/sister/daughter-in law freezes
to death for lack of heat;
• Your child dies because you could not afford a
doctor;
Your teenage children are illiterate.
• Your case goes unrepresented because you
could not afford a lawyer
• The government decides to evict you from the
land you are cultivating for several years
because you could not show the document of
so-called ownership.
ESCR Rights are Human Rights
ECONOMIC
SOCIAL
CULTURAL
Proposition
The intrinsic value of human
rights necessitates respecting
each and every individual's
dignity or worth simply by
virtue of being human
Highlights
• ESCR under Normative Framework of
Human Rights
• Assumption of ‘Generation Theory’
• Approaches for breaking ‘Generation
Theory’ (Title and Rights-based approach)
• Best practices of 'justiciability' of ESCR
• Contextualizing ESCR in the
Constitutional Framework in Nepal
ESCR: Normative Framework
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ILO
UN Charter: ECOSOC
UDHR
ICESCR and Others
Regional Standards (European, InterAmerican and African)
Debate
Assumption of
‘Generation Theory’
Assumption:
Civil and Political Rights: 1st Generation
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Absolutely justified as rights
Fundamental Rights with Remedies
Negative Rights and Negative Obligation
Immediate implementation through law
Availability of resources
Legal mechanisms
• Therefore, CPR is ‘justiciable’
Assumption:
ESCR: 2nd Generation
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Merely the Aspirations
State Policies and no effective remedies
Positive rights and Positive Obligation
Progressive realization and programmatic in
nature
• Unavailability of resource
• Lack of availability of legal mechanisms
• Therefore, ESC Rights are ‘non-justiciable’
Breaking Generation Theory
• Instrumental Justification: ESC
as “RIGHTS’. ICESCR: 15
substantive rights, General
Comment
• Principle of Applicability and
justiciability (Limburg Principles)
• the persistence of the classification of
human rights detrimental
• undermines the universality and practical
implementation of all human rights".
• The assumptions are erroneously imposed
and wrongly concluded the ESCR as 'nonjusticiable.
• The lack of 'availability of resources' has
been overwhelmingly dragged to justify the
generation theory and that is very much
random
• ESC rights contain not only the economic
rights but also two other rights (social and
cultural) that are genuinely indispensable
• Even the 'economic rights could be made
'justiciable' by 'taking reasonable steps'
falling three approaches of production,
storage and distribution with all
necessary interventions, at domestic
level.
• "the problem relating to
the legal nature of social
and economic rights
does not relate to their
validity but rather to their
applicability”
Realization
Recognition
Indicator
Enjoyment
Rightsbased
Approach
Entitlements
Accessibility
Assertion
Justiciability of ESCR
1. What does justiciability mean?
2. Are the ESCR justiciable rights?
3. What jurisprudence do we have in
relation to ESC Rights.
What does justiciable
right mean?
• Justiciable rights are rights that are capable of
being adjudicated by a court of law.
• When the enforcement mechanism is a court of
law, then the right is justiciable.
• The victims of violation shall be able to bring
his/her case before the judiciary and look for an
effective remedy to the violation that he/she has
suffered from a given state.
Justiciability
• This principle justifies the power and duty
of the courts to mediate constitutional and
human rights disputes and to resolve such
disputes by making authority and binding
decisions.
• In South Africa, justiciability implies
determining whether a particular issue is
appropriately resolvable by the courts and
this involves procedural and
substantive considerations
Dichotomy b/w DPSP and
Fundamental Guarantees
• Most of the domestic
Constitutions have placed these
rights not within the "fundamental
rights framework' but under the
Directive Principles and State
Policies (DPSP). India, Pakistan
and Nepal are some of them.
ESCR: Scope of Justiciability
• State Responsibility to RESPECT,
PROTECT and FULFILL
• Measures that must be taken
According to Article 2 of the Covenant
(For example: Rights to Food,
Clothing and Housing under Article
11)
• The idea of progressive realization does
not, of itself, necessarily mean that ESRC
can no be justiciable.
• Some national Jurisdictions have
observed ESCR as justiciable rights.
• The case of South Africa is a landmark
example to mention.
The Constitutional Provisions on and
their justiciability in South Africa
Section 25 (5):
“The state must take reasonable
legislative and other measures,
within its available resources, to
foster conditions which enable
citizens to gain access to land on
an equitable basis”
Section 26:
1. Everyone has right to have access to adequate
housing
2. The state must take reasonable legislative and
other measures, within its available resources, to
achieve the progressive realization of this right.
3. No one may be evicted from their home, or have
their home demolished without an order of the
court made after considering all the relevant
circumstances. No legislation may permit
arbitrary evictions.
Section 27:
1. Everyone has the right to have access to
a. Health care services, including
reproductive health care
b. Sufficient food and water, and
c. Social security, including, if they are
unable to support themselves and their
dependents, appropriate social
assistance….
3 No one may be refused emergency
medical treatment
Section 28 (1) ©
1. Every child has the right
c. To basic nutrition, shelter, basic health
care services and social services
• These rights need to be considered in
the context of the cluster of socioeconomic rights enshrined in the
constitution.
Housing Jurisprudence
The Government of the Republic of South
Africa vs Irene Grootboom and others
Fact:
• Mrs Irene Grootboom and the other
respondents (510 children and 390 adults)
were rendered homeless as a result of
their eviction from their home situated on
private land.
• They applied to the High Court for an
order requiring government to provide
them with adequate basic shelter or
housing until they obtained permanent
accommodation.
• The High Court ordered to provide the
respondents who were children and their
parents with shelter under article 28 of the
constitution.
The Constitutional Court of South Africa:
Best practice of ‘justiciabiity’
• Socio-economic rights are
expressly included in the Bill
of Rights, they can not be
said to exist on paper only.
• The question therefore not whether socioeconomic rights are justiciable under our
constitution, but how to enforce them in a
given case.
• Our Constitution entrenches both civil and
political rights and social and economic
rights. All the Rights in our Bill of Rights
are inter-related and mutually supporting.
There can be no doubt that human dignity,
freedom and equality, the fundamental
values of our society, are denied those
who have no food, clothing or shelter.
• Affording socio-economic rights to all
people therefore enables them to enjoy
the other rights enshrined in the
Constitution.
• On the other hand right must be
understood in their social and historical
context.
• The realization of these rights is also
key to the advancement of race and
gender equality and the evolution of the
society in which men and women are
equally able to achieve their full potential.
• The right to access to adequate housing
can not be seen in isolation. There is a
close relationship between it and the other
socio-economic rights.
• Their interconnectedness needs to be
taken into account in interpreting the socioeconomic rights, and, in particular, in
determining whether the state has met its
obligation in terms of them.
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The Constitutional Court of South Africa also
considered the relevant International law and its
impact as follows:
Article 2 and 11 of the ICESCR
The General Comment (No 3, 7 of Committee on
ICESCR): “ The Concept of minimum core
obligation” requires reasonable legislative and
other measures to be taken
The court also evaluated the evidence of the
state housing programme.
The National Housing Act 1997 that requires the
national housing programme.
Other: ESC Jurisprudence
• the recognition of interdependence of civil
and political with economic, social and
cultural rights crucial role to play in
promoting and ensuring the indivisibility
and interdependence of all human rights.
(Case 2)
• a reasonable residence is indispensable
for fulfilling the constitutional goal of the
development of individuals.( Case no. 8)
• The State must develop though an
efficient mechanism for the
implementation of the norm (Case 3)
• “failure of the government to provide basic
services such as safe drinking water and
electricity and the shortage of medicine as
alleged in the communication constitutes a
violation.. (case 3)
• “the right to education flows directly from
the right to life. (case 6)
• the “right to life”, is intended to ensure the
equality of the weaker segments of
society. .(Case 8)
• “improvement of public health and the
prohibition of drugs injurious to health [is]
one of the primary duties of the state.”
(case 8)
• The states are responsible to ensure that
all the Public Distribution System (PDS)
shops were reopened and made
functional. (case 8)
Nepalese Context
• DPSP (till 2006)
• Fundamental Rights and
SRDPSP (Proposed interim
Constitution)
• What Framework Are we looking
for????