Justiciability of Economic, Social and Cultural Rights

Traditionally, international human rights law has branded economic social and cultural rights as second generation, non-justiciable rights, in contrast with civil and political rights. Supporters of traditional view argue that these are rights too vague to determine their violations. It is also frequently said that courts lack democratic legitimacy to intervene in social policy matters and that courts do not have ability to understand and adjudicate the complex issues involved. Many governments and scholars have, therefore, rejected judicial enforcement of these rights as the most expensive and practically impossible to implement. Despite this tradition of hierarchy, these rights have increasingly gained recognition at international stage and national levels. The urgencies of social disparities have pushed international community to act for realization of socio-economic rights. The essential element of such realization is accepting justiciability of these rights. Proponents of complaints mechanism have long argued that the absence of strong enforcement mechanisms has marginalized socio-economic rights, and that these rights are equally fit for enforcement by courts. This essay dwells on this question of justiciability and analyses arguments on both sides. Part II examines the non-justiciability argument from the point of view of the textual language of the International Covenant on Economic, Social and Cultural Rights and of judicial legitimacy. Part III addresses itself to the practical problems to socio-economic rights judicial enforcement. The view for justiciabilty is treated under part IV. For the purpose at hand, “justiciability” is taken in its narrower sense to refer to judicial enforcement. This is not to argue that judicial enforcement is the only or the best mode of implementation. Given its limited scope, the essay does not consider this issue at all. It simply addresses issues relating judicial enforcement as one mode of implementation of socio-economic rights. II Conceptual Barriers of Judicial Enforcement A. Nature of State Obligations One of the arguments for the non-justifiability of economic, social and cultural rights relates to the language of the text of the Covenant. Compared to the Covenant on Civil and Political Rights, the language used in the Covenant on Economic, Social and Cultural Rights is frequently considered as vague or general. The idea is that the rights of individuals are not precise enough or that the obligations of states are not sufficiently defined to be enforced by the court of law. Socio-economic rights are denounced on the basis of the principle of legal certainty. An argument is made that these rights are open-ended and indeterminate, and hence they lack conceptual clarity.[1] It is to this line of argument that this sub-section turns in. Article 2(1)[2] of the Covenant provides for undertaking of states vis-à-vis economic, social and cultural rights of human beings. The provision reads: Each state party to the present Covenant undertakes to take steps individually and through international assistance and cooperation, specially 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 Coven- ant by all appropriate means, including particularly the adoption of legislative measures. This article is frequently condemned for leaving the correlative state obligations vague and uncertain. Dennis and Stewart ask: Can it cogently be argued the ICESCR articulates real rights, or does it merely set forth hortatory goals, programmatic objectives, or utopian ideals? Is it “soft law”? How can rights (or obligations) those depend on the availability of scarce or unpredictable resources be rights (obligations) in any meaningful sense? How does one ca- lculate the “maximum extent of available resources,” and what do- es “progressive realization” mean? Can economic, social and cult- ural rights ever be fully achieved? How can they best be “enforced”? Their concern, in short, is that terminologies used in the Covenant to describe states’ obligations are not precise. And their statements, apart from asking, suggest their opinions. Two points can be inferred from the set of their questions: That what ICESCR provides are not rights, and, if at all they are rights, that these rights cannot be enforced. Likewise, by referring to some of the provisions in the Covenant, Vierdag critically states that: What are laid down in the provisions such as Article 6, 11 and 31 of the ICESCR are consequently not rights of individuals, but broadly formulated programmes for the governmental policies in the economic, social and cultural fields. It is suggested that it is misleading to adopt an instrument that by its very title and by the wording of its relevant provisions purports to grant ‘rights’ to individuals but in fact appears not to do so, or to do so only marginally. It is also regrettable that in this way, a notion of ‘right’ is introduced into international law that is utterly different from the concept of ‘right of individual’ as it is traditionally understood in international law and employed in practice.[4] Vierdag clearly tells us that the generality of the Covenant provisions has deprived them (at least those referred to by him) of the legal nature. According to him, socio-economic rights are different from the traditionally known and practiced individual rights. The view that economic, social and cultural rights are not rights does not seem to rest on strong argument. The ICESCR has been adopted as part of the United Nations human rights system. State practice and scholarly views have long recognized the Covenant as the international instrument providing for human rights, though the debate on the enforcement of the Covenant provisions has continued. It is argued that the compliance or otherwise of a state party to its obligations in the Covenant cannot be determined because of “the promotional nature of the rights and the generality of their terminology.”[5] The point seems that further clarification and elucidation of the rights and obligations is necessary to achieve implementation of the Covenant provisions. For Dennis and Stewart, this is an “essential first step before any of those rights can be said to be justiciable in any meaningful sense.”[6] The acontrario is clear: those social, economic and cultural rights as they appear in the Covenant are not justiciable. Dennis and Stewart try to show further the non-justiciability of socio-economic rights by comparing the two Covenants (ICESCR and ICCPR) and the respective rights and obligations they contain. They believe that ICCPR creates clear state duties while the ICESCR does not. The idea is that the ICCPR requires states parties to guarantee rights recognized under it, whereas the rights in the ICESCR do not have correlative state obligations.[7] They analyse the respective provisions in the Covenants to show this:[8] ICCPR Article 2(1) provides that states undertake to “respect and ensure to all individuals within territory …the rights recognized in …the Covenant”; under Article 2(2) states are mandated to “adopt legislative measures…to give effect to the rights”; states also undertake under Article 2(3) to provide for effective remedy in case of individual rights violation. On the other hand, in ICESCR states undertake simply to “take steps…with to achieving progressively the full realization of the rights…” The point they are making is that the ICESCR establishes a “regime of contextual, contingent, and continuing obligations on states aimed at the eventual realization of economic, social and cultural rights,” and not of immediate application of those rights. A related point they make from the texts of the Covenants is the way the rights are addressed. The ICCPR uses the language that directly confers rights on individuals while the ICESCR does not.[10] ICCPR’s articles provide that “everyone shall have the right…”, whereas that of the ICESCR state that “states parties…recognize the right of everyone.…” The differences, it is said, happened not simply because of “political or ideological confrontations,” but they are deliberate outcomes from recognition of real differences between the two sets of rights.”[11] Hence, a claim for “parallel or identical” treatment for the purpose of implementation is not appropriate. An independent legal expert in his report recognizes the same: The obligations that states assume under ICESCR are generally presented, because of their objective, not as obligations of result but as obligations of means….How, that being the case, sit possible to provide precise definitions, within the general obligation of diligence assumed by states parties, of genuinely measurable obligations? How, in other words, are the provisions of the Covenant t be translated into clearly defined commitments so that individual breaches of them can give rise to remedies?[12] The “negative rights” and “positive rights” characterization is another ground of comparison on the basis of which economic, social and cultural rights are said to have lacked justiciable quality. Civil and political rights are, it is argued, negative rights which precisely require the state to abstain from interfering, and, therefore, are justiciable; whereas economic, social and cultural rights are “merely hortatory because they are vague worded, involve more complex issues, and would assign unacceptable positive obligations to government.”[13] The assumption here is that civil and political rights simply and always require the state to refrain from interfering in the individual exercise of the right. On the other hand, socio-economic rights are identified as imposing affirmative obligations upon the state to provide the means. However, this classification of socio-economic rights as exclusively positive, and civil rights as negative does not hold. Any right, including socio-economic rights, has a negative aspect, that it requires the state and non-state actors to respect it. Conversely, the so-called negative civil and political rights frequently impose substantial affirmative obligations on states. Enjoyment of a voting right, a typical political right, “can require expensive new procedures, or materials or may vastly increase voter rolls, placing a huge financial burden on the state.”[14] Furthermore, “negativity” or “positivity” of state obligation has nothing to with precision or imprecision of provisions. Decision of whether a state has violated its negative obligation requires determination of individual right in that regard. And this may need as much interpretation as any positive right. The foregoing discussions show that economic, social and cultural rights have traditionally been considered as lacking justiciability, a quality which civil and political rights are deemed to possess. The reason usually given is that economic and social rights are often progressive in nature and that many such rights are couched in language that is too imprecise to be judicially enforceable. A counter-view considers that lack of precision on part of socio-economic rights has been over-stated. One must not attach great degree of imprecision to the rights as stated in the Covenant. The United Nations’ work in structuring states’ obligations as the “duty to respect”, the “duty to protect”, the “duty to fulfil”, it is submitted, has added some clarification to the Covenant provisions.[15] Under the obligation to respect, the state is required to refrain from interfering in the enjoyment of a right by individuals or group. In relation to the right to food, the state’s obligation to respect, for example, means that the state should not take away the means of food procurement from right holders. The state shall also, under its duty to protect, prevent the enjoyment of a right from being interfered by non-state actors (companies, NGOs, associations, groups, individuals). A commentator gives a combined example of state’s duty to respect and to protect: The obligation to respect and protect the right to adequate housing, as laid down in Article 11 of the ICESCR, would in my view be violated, if the government’s policy, even in the least developed countries, allowed the hovels of poor people to be torn down and replaced by luxury housing which the original inhabitants could not afford and without providing them with access to alternative housing on reasonable terms[16]. The duty to fulfil is the state’s obligation to provide the means of satisfaction of the rights of individuals when the latter are without the means to provide for themselves. It is asserted that priority of action shall be given for those who cannot meet their basic needs by themselves without assistance of the government, and that there are “clear, near absolute, core entitlements to the provision of the basic subsistence needs of the most vulnerable in all states party to ICESCR.”[17] A claim has also been made that these clear obligations to fulfil are subject to immediate application.[18] The idea is that the above structure of obligations correlating the socio-economic rights makes it clear that these rights can be understood with a greater degree of specificity and precision than their critics are willing to acknowledge. An attempt is made to show that duty to respect and to protect can be understood relatively with better clarity. Even if imprecision may increase as one moves to the duty to fulfil, some basic core rights can identified with sufficient clarity. The identification by the United Nations Committee on Economic, Social and Cultural Rights of some provisions in the Covenant (for example, Articles 7(a) (i), 8, 10(3), 13(2)(a), 13(3), 13(4), 15(3)) as requiring immediate implementation is considered as an important step towards clarification and judicial implementation of the Covenant provisions.[19] The Committee’s specification of the provisions is a response to a common assertion that these rights are not justiciable. The Limburg Principles, a body of principles that has been promulgated by a group of world’s leading experts in the field of the legal protection of social rights, has also construed the connection between “progressive realization” and “maximum available resources.”[20] It advanced that progressive realization of the rights requires states to act as expeditiously as possible towards implementation of those rights, and that fulfilment of states’ obligations requires taking steps immediately.[21]Progressively achieving the realization of socio-economic rights does not mean that states have the right to defer indefinitely efforts to ensure full realization. Many legal theorists have supported the capability of socio-economic rights to constitute legal rights, and case law is being developed in South Africa and elsewhere. One example is Subramoney, which involved interpretation of the right to health care services provided by the state.[22] One may therefore conclude, from the point of view of generality problem, there is an impressive degree of concreteness in the obligation of states parties to the Covenant, much more than is appreciated. Courts thus have at their disposal substantial guiding criteria for judicial application of rights under the Covenant. Another point of counter-view, against those who condemn socio-economic rights for their vagueness on comparative basis, is that civil and political rights also suffer from vagueness. So, considering socio-economic rights non-justiciable on the comparative basis does not hold. Criticisms of the same nature were said to have been forwarded against civil and political rights prior to their development through practice.[23] Even now, the scopes of some of the rights such as freedom of speech are, it is submitted, “far from being set on stone.”[24] Thus it is argued: Just as it would be mistake that all courts at the beginning had extensive knowledge of what “equal protection” of the law entailed, so would it be a mistake to assume judicial precision in relation to enforceable obligations that might flow from a right to education, at an early stage.[25] By referring to a right in both sets of rights, the, in the hereinabove quoted paragraph, makes comparison between provisions of the two Covenants. The point made is that provisions of the ICCPR which lacked clarity initially have developed into precise justiciable rights, and that the same can be achieved for socio-economic rights through practice. Critics of justiciability if socio-economic rights claim imprecision on the part of these rights by referring to and comparing with the “obligations to respect” of civil and political rights Covenant. The comparison is made between naturally relatively more specific “obligation to respect” provisions (in ICCPR) and relatively imprecise “obligation to fulfil” provisions (in ICESCR). This is comparison of uncomparables, and as some say, “comparing apples and oranges.”[26] Discussions in foregoing paragraphs suggest that socio-economic rights have relatively precise “to respect” and “to protect” correlative obligations, just as civil and political rights have imprecise “to fulfil” obligations. As the imprecision in the “to fulfil” obligations has not prevented civil and political rights from being adjudicated, lack of precision on the part of “to fulfil” socio-economic obligations cannot be reason to treat socio-economic rights as non-justiciable.[27] More importantly, it should be noted that precision is a function of judicial interpretation. So, the outcome (precision), which is to be reached at after repeated process of judicial enforcement, shall not be a condition precedent for the coming into being of the process itself. The specific shape of a right is the result of years’ application of practical reasoning to facts. Absence of judicial practice is the reason for the lack of precision. The importance of judicial application for clarification of socio-economic rights and, hence, for their supervision is emphasized as follows with regard to one of the rights: Justiciability allows national tribunals to clarify the meaning of water rights in varying contexts and to establish authoritative interpretations helpful to governments. The United Nations, relevant non-governmental organizations, and other bodies can effectively supervise the progressive realization of this right by monitoring the number of cases brought to the courts and remedies granted to those seeking redress.[28] Liebenberg pointed out that the less development of normative content of socio-economic rights compared to those of civil and political rights is due to their exclusion from adjudication process.[29] If they frequently interpreted by courts in relation to concrete cases, there is no reason why socio-economic rights cannot achieve precision. The residual argument in the counter-view is that generality of provisions has nothing to do with justiciability. The Committee on Economic, Social and Cultural Rights implies that the non-justiciability argument confuses “justiciability” with “enforceability”.[30] Justiciability is the quality of being enforced by courts, while enforceability is about capacity of self-execution, i.e., being applied by courts without the need for further elaboration.[31] “There is no Covenant right which could not …be considered to possess at least some significant justiciable dimensions.” [32] The point being made is that generality of socio-economic rights poses enforcement issue (clarify them through different measures, including legislation), not justiciability issue. Generality is not legitimate basis to reject justiciability. In fact, any law, at whatever level, is general by its nature, though the extent or degree of generality varies with varying laws. The Committee on Economic, Social and Cultural Rights noted that there is nothing inherent in the nature of socio-economic rights that prevents judicial determination of their contents.[33] Whether or not the obligation is stated generally, or the right is subject to progressive implementation, nothing prevents a body with judicial power from determining the compliance or otherwise of a state with such obligation. True, the more the general the obligation, the more difficulty involved in determining its observance. But this is a different question, not justiciability issue. It is said, “Justiciability of a particular issue depends not up on the quality of the decision, but upon the authority of the body to make the decision.”[34] In summary, socio economic rights suffer from less conceptual imprecision than their critics allege. While it is true that many of socio-economic rights deal with situations that take time to remedy, this does not deprive them of justiciable character. Some wrongs can be rectified immediately; others may be addressed through time progressively. B. Separation of Powers Separation of powers is a doctrine in democratic governance that the three traditional functions of government are divided among three branches of government: the legislature makes the law, the executive implements the law, and the judiciary applies and enforces the law. The assumption is that the three functions are distinct, and each government organ exercises its own power exclusively and shall not interfere with the task of another.[35] Accordingly, traditional separation of powers requires that, in performing interpretative function, the judiciary is not to intrude on the governmental functioned assigned to other branches of government. Determination of socio-economic rights, it is asserted, involves budgetary and policy issues. Subjecting such a judicial process, therefore, goes against the separation of powers doctrine as it is for the legislature to decide on the issues.[36] Vierdag rejects appropriateness of vesting such competence, as this would nullify separation of powers thereby turning the judiciary into a political organ.[37] The view is that elevating socio-economic rights to a status of legal enforceability would threaten traditional notions of democracy and separation of powers as these rights are considered as constituting the core of policy decisions that fall within the functions of legislature and executive branches. The argument of judicial policy-making against justiciability of socio-economic rights is objected on the ground that decision on civil and political rights, whose justiciability is well accepted, also involves policy issues. In the United states, judicial review of such policies, Wiles submits, is now a widely accepted mechanism for intervention when policies threaten human rights standards.[38] Moreover, the rights based policy making has a desirable effect of improving government accountability and transparency.[39] It is also argued that the fact that judges are not elected representatives makes courts suitable for determination of socio-economic rights. This is an advantage, a strength-not weakness that the judges simply stick to principles[40], and not calculation of other political profits. Albie Sachs, a South African Constitutional Court Justice, stated in his speech: When it comes to matters of deep principle, our lack of accountability actually becomes a virtue. We are not running for office, and electoral popularity is of no concern to us. We defend deep core values which are part of world jurisprudence and part of the evolving constitutional traditions of our country. Our lack of accountability in these circumstances actually becomes “a plus”.[41] The precise point of argument at the centre of the view that socio-economic issues are policy matters is that these rights are positive rights which usually have budgetary implications.[42] Socio-economic rights require a state to expend resources to provide remedy, whereas civil and political rights are negative rights which simply require state to refrain. The types of rights that can be enforced judicially are those that protect individual freedom from state intervention, not rights which place positive obligations on state. The allocation of resources is deemed the province of legislature, which has the political legitimacy of being an elected body.[43] By invoking the fact that judges were not elected and they were not accountable to the people, the state, in Grootboom case,[44] argued that it was not the function of the judges to determine housing policy and allocation of resources. These arguments indiscriminately assume that all socio-economic rights and their determination involve resource expenditure. But there are also negative rights which the state has to simply respect. In case of violation of the negative rights, remedial order of the court could simply be injunction, involving no resource. For example, the right to participate in trade unions, the right to free choice of one’s employment, right to form trade unions, and the right to participate in cultural life of the community are commonly referred to as requiring no affirmative state action for their enforcement.[45] Even in the case of positive obligations, the possible remedy may not necessarily involve judicial allocation of resources. A judgement may simply indicate that a violation exists, which right is violated and that it shall be remedied,[46] without specifying the type of remedy. Then determination of the mode and extent of remedy, which would involve governmental expenditure policy, is left for other government branches to act on. Such a view was reflected in the following terms: Adjudicating economic, social and cultural rights claims does not require courts to take over policy making from governments. Courts have neither the inclination nor institutional capacity to do so. Rather just as in civil and political rights cases, courts and other bodies adjudicating economic, social and cultural rights review governmental decision making, to ensure consistency with fundamental human rights.[47] The separation of powers doctrine- based non-justiciability argument can still be challenged on another ground: involvement of state expenditure is characteristic of not only socio-economic rights, but also civil and political rights. Enforcement of many civil and political rights requires resource allocation. For example, the right to fair trial, freedom of speech, freedom of association and movement, right to vote, right to equality are deemed by many as requiring budget expenditure for their enforcement.[48]The right to fair trial can be attained by maintenance of expensive court system. The right to fair trial may even go to the extent of legal aid funding. Representation in criminal proceedings may require the public provision of lawyers to defendants who cannot afford. The protection of the right of free speech may require the government to deploy police force to protect the speaker from disruption. Moreover, “negative rights are also protected through the apparatus of state regulation by means of legislation, police forces and related controls and therefore cannot be said to be costless.”[49] So, the assertion that civil and political rights always require mere abstention on the part of the state whereas socio-economic rights mandate positive action is a false assumption. And any attempt to show non-justiciability of socio-economic rights through separation of powers doctrine, which in turn is based on such false assumption, is a futile exercise. The South African Constitutional Court has settled the issue as follows: The objectors argued further that the socio-economic rights are not justiciable, In particular because of the budgetary issues their enforcement raise….Nevertheless, we are of the view that these rights are, at least to some extent, justiciable. As we have stated in the previous paragraph, many of the civil and political rights will give rise to similar budgetary implications without compromising their justiciability. The fact that socio-economic rights will almost inevitably give rise to such implications does not seem to us to be a bar to their justiciability.[50] The preferred understanding, therefore, seems that both sets of rights include negative and positive elements in which the correlative state’s obligation ranges from refraining to providing the means to meeting the right requirements. This in a way means courts are already involved, one or the other way, in determination of rights which have resource implications. Discussions in foregoing paragraphs tend to indicate that negative rights are emphatically positive rights. Any judgement against government, it is admitted, has financial repercussions.[51]The Committee on Economic, Social and Cultural Rights acknowledges that “courts are generally already involved in a considerable range of matters which have important resource implications.”[52] McKeever and Aolain make a clear illustration that determination of matters that involve resource allocation is not a new task for courts: We do not deny that a redistributive element may be present in the enforcement of social and economic rights. However, redistribution is a feature in multiple decision- making contexts from tort damages to competition law. Judges routinely make choices between litigants, and between the state and individual litigants, that have profound financial implications. We should robustly defend the view that this is not different from the role plaid by the judicial branch in multiple other circumstances.[53] The point being made is simple: In any adjudication process in which a state is involved and in each case where courts hold the liable, they have been involved in resource allocation. And this has been accepted as appropriate within the traditional separation of powers. Determination of socio-economic rights that require state action has nothing different. But extent wise it is true that positive socio-economic remedies may be more expensive than that of civil and political rights. Still the sweeping argument is that absolute separation of powers among government branches is neither desirable nor practicable. The idea is that the separation of powers doctrine implies a situation in which a government branch may, to a certain extent, interfere in the role of another for the purpose of check and balance. Cappelleti asks if one can certainly demarcate the boundaries of each government branch.[54] The following assertion demonstrates the desirability and inevitability of cross-border roles of each government limb: To resort to the idea that there is a tripartite division of powers, legislative, executive, and judicial, each term self defining, is to deal with phantasms. If we take the basic arguments usually asserted that it is for the legislature to make the rules governing conduct, for the executive to enforce those rules, and for the judiciary to those rules in the resolution of justiciable contests, it soon becomes apparent hat it is necessary to government that sometimes the executive and sometimes the judiciary has to create rules, that sometimes the legislature and sometimes the judiciary has to enforce rules, and sometimes the legislature and sometimes the executive has to resolve controversies over the rules.[55] The point is the relationship between government branches should be cooperative and interactive, not separate. The idea of limited government requires that each checks the power of the other. The balance of powers would be attained through the continuous participation of all the branches in the process of mutually defining their boundaries. If all that is true about the nature of separation of powers doctrine, it must be accepted that the judiciary may sometimes, through exercise of its ordinary function, encroach on the powers of the legislature or executive depending upon the nature of the matter it determines. The fact that the decision on socio-economic rights by its nature involves policy issues shall not be a bar to justiciability. Judicial policy-making, ruling on matters of resource allocation, shall be taken as the natural consequence of their ordinary function of adjudication. That is the way to check the validity of government decision making. So, it is asserted, “In case of social rights, judicial review serves the function of checking the political branches to ensure that they are responsive to the constitutional rights of the least privileged in society, and that the policy makers do not lose sight of their suffering.”