wcl7

Economic social and cultural rights

Equality of Rights

UDHR preamble: All rights are indivisible, interdependent

Preamble of both Covenants

Both Covenants came into force in 1976

Have roughly same number of States parties

Equal importance confirmed again in Vienna Declaration of 1993

ICESCR is ‘poor cousin’ of ICCPR

CP rights have long history of legal recognition by national govts (eg Bills of Rights in late 18C)

Focus of NGOs

Treaty bodies practise

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status

Each State party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, … to the maximum of its available resources, with a view to achieving progressively the full realization of rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures

Article 2(1) ICCPR: immediate, clear, strong

Article 2(1) ICESCR: progressive, vague, weak

why???

positive/negative dichotomy

GC 19: There is a strong presumption that retrogressive measures taken in relation to the right to social security are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant ...

The Committee will look carefully at whether: (a) there was reasonable justification for the action; (b) alternatives were comprehensively examined; (c) there was genuine participation of affected groups in examining the proposed measures and alternatives; (d) the measures were ... discriminatory; (e) the measures will have a sustained impact on the realization of the right to social security, an unreasonable impact on acquired social security rights or whether an individual or group is deprived of access to the minimum essential level of social security; and (f) whether there was an independent review of the measures at the national level.

- private (self help), local and international

- depends on level of development, current economic situation, other claims on resources

Judges are not economic experts

But they are not expert on many matters over which they decide issues

Decide on breaches not solutions

Reviews policy; does not make policy

OP to ICESCR

- adopted by consensus in December 2008 (60th anniversary of UDHR)

- allows for group submissions

- may decline if no "serious disadvantage" (unless issue is of general importance)

- inquiry procedure

- expanded meaning of right to life

- see, eg, Arts 23, 24, 27 ICCPR

- freedom of expression + right to education

In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.

Article 26 ICCPR: All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, property, birth or other status

eg. Broeks v Netherlands; Young v Australia

indivisibility

Domestic Justiciability

- now a duty under ICESCR

- South Africa

- Colombia

- Venezuela

- India

- Argentina

Justiciability

Differences in Obligations

Inequality of Rights

International obligations

- extraterritoriality

- respect, protect, and fulfil?

- other bodies (WTO, IMF, World Bank)

Measuring Available Resources

Progressive Obligations

Budget analysis

- should move forwards

- presumption against retrogression

benchmarks and goals

Normative developments

Immediate obligations

Content

- taking of some steps (eg adopt plan of action)

- non-discrimination

- minimum core obligations

- respect, protect, fulfil trichotomy

- are capable of "violation"