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Introduction
You have already read that since 1948, a large number of human rights treaties have been adopted both at regional and international levels. At universal plane, after the Universal Declaration of Human Rights [ UDHR ], 1948, International Covenant on Civil and Political Rights [ ICCPR ], and the International Covenant on Economic, Social, and Cultural Rights were adopted in 1966. The decision to divide the international human rights instrument into two separate Covenants was not a decision to have entirely different documents. As a matter of fact the couple of rights are common in both the Covenants, namely, rights to self-determination, prohibition of discrimination, the right to join trade union etc. However, there are rights, which are exclusively dealt in one or the other Covenant. Those rights are stated in a specific form and subject to implementation independently from each other. The UDHR remains an important human rights instrument in the development of national, regional and international human instruments. The UDHR itself includes not only civil and political rights, but also economic, social and cultural rights. The concluding articles emphasize the interdependence of the rights and duties of the individual in relation to the community. Article 29, paragraph (1) states that: “Everyone has duties to the community in which alone the free and full development of his personality is possible”. As far as communities are concerned important for them are economic, social and cultural rights. Of course these are equally important for individuals as members of communities.
Economic, Social And Cultural Rights
The doctrine of human rights aspires to provide a common framework for determining the basic civil, economic, political, and social conditions required for all individuals to lead a minimally good life. Economic, Social and Cultural rights are designed to ensure the protection of people as full persons, based on a perspective in which people can enjoy rights, freedoms and social justice simultaneously. In a world where, according to United Nations Development Program (UNDP) “a fifth of the developing worlds population goes hungry every night, a quarter lack access to even a basic necessity like safe drinking-water and a third lives in a state of abject poverty – at such a margin of human existence that words simply fail to describe it“, the importance of renewed attention and commitment to the full realization of economic, social and cultural rights in self-evident. The importance of these rights has increased rapidly since the end of the ideological conflict that was the Cold War. Until the last twenty years or so, human rights work had focused almost exclusively on civil and political rights, on the freedoms of thought, expression and association as well as protections of physical integrity, such as freedom from arbitrary detention or execution, and freedom from torture. The collapse of erstwhile U.S.S.R, end of cold war and the growing numbers of people in poverty worldwide, provided momentum to human rights activists to join the global struggle against the poverty through using the framework and tools of human rights.
International Covenant On Economic, Social And Cultural Rights
Economic, social and cultural rights are fully recognized by the international community and throughout international human rights law. Of course, under international human rights law civil and political rights have, in many respects, received more attention, legal codification and judicial interpretation, and have been instilled in public consciousness to a far greater degree, than economic, social and cultural rights. However, Universal Declaration of Human Rights in 1948 itself made it clear the indivisibility and interdependency of civil and political rights and economic, social and cultural rights. This was further made Clear by simultaneous formulation of two covenants that is International covenant on civil and political rights and International Covenant on Economic Social and Cultural Rights (ICESCR). The UN General Assembly adopted the ICESCR on 16 December 1966. It entered into force on 3 January 1976. As on 11 October 2007, 157 States had ratified the ICESCR thereby voluntarily undertaking to implement its norms and provisions. The International Covenant on Economic, Social and Cultural rights (ICESCR) covers a wide spectrum of rights.
The ICESCR comprises of a preamble and thirty-one articles. Whole ICECSR is divided into five parts. Part-1 recognizes the right of peoples to self determination; Part-2 covers the general nature of States parties obligations; Part-3 touches upon the substantive rights; Part-4 deals with international implementation; and Part-5 contains typical final provisions of a human rights treaty.
Following rights are identified as economic, social and cultural rights under the International Covenant on Economic, Social and Cultural Rights under Articles 6 to 15:
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- The Right to Work (Article 6).
- The Right of everyone to the enjoyment of just and favorable conditions of work (Article 7).
- The Right of everyone to form trade unions and join the trade union of his choice (Article 8).
- The right of everyone to social security, including social insurance (Article 9).
- The widest possible protection and assistance should be accorded to the family (Article 10).
- The right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions (Article 11).
- The right of everyone to the enjoyment of the highest attainable standard of physical and mental health (Article 12).
- The right of everyone to education (Article 13).
- Each State Party to the present Covenant which at the time of becoming a Party, has not been able to secure in its metropolitan territory or other territories under its jurisdiction compulsory primary education, free of charge, undertakes, within two years, to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years, to be fixed in the plan, of the principle of compulsory education free of charge for all (Article 14).
- The right of everyone (a) to take part in cultural life; (b) to enjoy the benefits of scientific progress and its applications; (c) to benefit from the protection of the moral and material interests resulting from any scientific; literary or artistic production of which he is the author (Article 15).
Limitations On The Rights
The covenant places certain limitations on the exercise of the rights recognized by it. Many of these limitations flow from the very nature of the rights and the problems involved in their implementation by state.
First, the covenant is based on the general awareness that full realization of the rights contained in it would require a high level of economic development in state. Thus, the developing countries are allowed to determine to what extent they would guarantee these rights, “with due regard to human rights and their national economy” (Article 2 (1)).
Second, states are permitted to impose limitations on the economic, social and cultural rights, subject to two conditions: (1) that the limitations must be “compatible with the nature of these rights“, and (2) that they must be imposed “solely for the purpose of promoting the general welfare in a democratic society” (Article 4). This does not mean that the state or any group or person may engage in any activity in destruction of these rights (Article 5(1)).
Third, many of the rights, such as the right to adequate standard of living and the right to the benefits of scientific and technological advance, depend on international co-operation for their realization (Article 2(1), 11, 15 and 22). Article 2(1)) specifically stresses the importance of international economic and technical co-operation for full realization of the rights recognized under the covenant.
Implementation Mechanism
State Party to the ICESCR has an obligation to ensure the implementation of core rights of the ICESCR. According to Article 2(1) of the ICESCR, States Parties have an obligation to take progressive measures for the realization of the rights set forth in the ICESCR. Compliance by States parties with their obligation of the rights and duties in question is monitored by the Committee on Economic, Social and Cultural Rights. The Committee on Economic Social Cultural Rights (Committee) has employed a “typology of State Party obligations” to facilitate understanding with regard to the fulfillment of economic social and cultural rights. Under this model, States Parties should “respect”, “protect” and “fulfill” the rights embodied in the ICESCR.
It may, however, be mentioned that the Committee was established in 1985 and met for the first time in 1987. The Economic and Social Council (ECOSOC), one of the principal organs of the United Nations, was the key organ for the progressive implementation of economic, social and cultural rights till 1985. States Parties compliance with their obligations under the ICCPR is to be monitored by the Human Rights Committee (HRC), which, in addition to examine states reports, could express its views on complaints submitted by individuals and States. However, the ICESCR failed initially to have similar kind of bodies for the implementation of ICESCR provisions by the State. ICESCR provided only for a reporting system and those reports were to be examined, not by an independent expert committee, but by ECOSOC as a whole. States parties were required to submit State Party report to the Secretary-General of the United Nations, who is required to transmit copies of them to ECOSOC for consideration and copies of their relevant part to the specialized agencies in so far as they relate to their responsibilities.
From 1979 to 1986, the ECOSOC carried out its responsibilities through working group, which met for 3 weeks during the ECOSOC’s first regular session each year. The general dissatisfaction with the effectiveness of the working group as a supervisory body, combined with the increasing emphasis being placed upon economic, social and cultural rights in the UN and a more conciliatory stance on the part of the East European States, all combined to put fresh impetus into the creation of a truly independent committee of experts. This resulted finally in the establishment of the Committee on Economic, Social and Cultural rights (Committee) composed of 18 members elected in their personal capacities and on the basis of an equitable geographical distribution. The Committee is parallel to supervisory body available under ICCPR, the Human Rights Committee in many respects.
Committee On Economic, Social And Cultural Rights
As already mentioned the Committee was established in 1985, Eighteen members of the Committee are elected by ECOSOC by secret ballot from a list of nominees submitted by States parties. The members are experts with recognized competence in the field of human rights. They are independent and serve in their personal capacity, not as representatives of Governments. The principles of equitable geographical distribution and the representation of different social and legal systems guide the selection process. The Committee itself selects its Chairperson, three Vice-Chairpersons and rapporteur. The first elections for the Committee took place in 1986 and eighteen members were elected for a four-year term beginning from 1 January 1987. The Committee currently meets twice a year, holding two to three-week sessions, generally in May and November or December. It holds all its meetings at the United Nations Office at Geneva. The members are eligible for re-election, if nominated by the State parties. Indeed, it is good practice, which allows members to continue to work as Committee members for long terms, it promotes stability through allowing the development of inter-personal relationships which can help to avoid any friction. The primary function of the Committee is to monitor the implementation of the Covenant by state parties. It strives to develop a constructive dialogue with state parties. The main source of communication is submission of reports by the state parties.
Submission Of State Party Reports
According to Article 16(1) of the ICESCR, “the States parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein”. The submission of reports by the States parties is clearly central to the integrity of the reporting system and failure to report constitutes a violation of a State’s obligation under the Covenant. However, it has been noted that the compliance with reporting obligations is poor. India has ratified the ICESCR on 10April 1979. Unfortunately, many state’s track record in submission of State party reports to the Committee is not encouraging. Accordingly, following the recommendation of the Committee in its second session, ECOSOC decided that States parties would submit a single report dealing with the whole ICESCR once every five years. Indeed, it will be difficult to assess the effect of the five years periodicity on the quality of supervision. Moreover, the problem of non-reporting tends to overshadow any consideration of the time scale in which reports become due.
In addition to the States parties report the Committee works on other sources of information, including UN specialized agencies; International Labor Organization (ILO), United Nations Educational, Scientific and Cultural Organization (UNESCO), World Health Organization (WHO), Food and Agriculture Organization (FAO) of the United Nations the Office of the United Nations High Commissioner for Refugees (UNHCHR), and the United Nations Centre for Human Settlements (Habitat) and others. It also receives information from non-governmental and community-based organizations working in States, which have ratified the Covenant, from international human rights, and other non-governmental organizations, from other United Nations treaty bodies, and from generally available literature on the economic, social and cultural rights.
Presentation Of Reports
The technique adopted by the Committee in the consideration of state reports is one of conducting a ‘constructive and mutually rewarding dialogue’ with State representatives. Representatives of reporting States are strongly encouraged to be present at meetings when the Committee considers their reports. Such delegations are virtually always present during this process, which is generally carried out over a two-day period. The final phase of the Committee’s examination of the report consists of the drafting and adoption of the Committee’s concluding observation. The Committee concluded in several occasions that violations of the Covenant had taken place, and subsequently urged States parties to desist from any further infringements of the rights in question.
Although the Committee’s concluding observations, in particular suggestions and recommendations, may not carry legally binding status, they are indicative of the opinion of the only expert body entrusted with and capable of making such pronouncements. Consequently, for States parties to ignore or not act on such views would be to show bad faith in implementing their Covenant-based obligations. In a number of instances, changes in policy, practice and law have been registered at least partly in response to the Committee’s concluding observations.
The reporting requirement, as such, is much more then simply a formalistic commitment. Although the reporting process is imbued with a number of difficulties, not the least which are the non-submission of reports by a large number of states, this mechanism has a number of important functions. Among these, as Palston points out, are the initial review function, the monitoring function, the policy formulation function, the public scrutiny function, the evaluation function, the function of acknowledging problems and the information-exchange function.
The Committee has emphasized that reporting obligations under the Covenant fulfil seven key objectives. In its General Comment No.1 (1989), the Committee stated these objectives as follows.
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- To ensure that a State party undertakes a comprehensive review of national legislation, administrative rules and procedures, and practices in order to assure the fullest possible conformity with the Covenant.
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- To ensure that the State party regularly monitors the actual situation with respect to each of the enumerated rights in order to assess the extent to which the various rights are being enjoyed by all individuals within the country.
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- To provide a basis for government elaboration of clearly stated and carefully targeted policies for implementing the Covenant.
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- To facilitate public scrutiny of government policies with respect to the Covenant’s implementation, and to encourage the involvement of the various sectors of society in the formulation, implementation and review of relevant policies.
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- To provide a basis on which both the State party and the Committee can effectively evaluate progress towards the realization of the obligations contained in the Covenant.
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- To enable the State party to develop a better understanding of problems and shortcomings impeding the realization of economic, social and cultural rights.
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- To facilitate the exchange of information among State parties and to help develop a fuller appreciation of both common problems and possible solutions in the realization of each of the rights contained in the Covenant.
The Nature Of Obligations Under ICESCR
In absence of an individual complaints mechanisms, the ICESCR also differs from the ICCPR in its express recognition that the rights it guarantees may take more time to realize than the rights guaranteed by the ICCPR and therefore they may be progressively rather than immediately realized. The States however have an obligation to give domestic effect to the international legal obligations they have assumed by ratifying the ICESCR, in the same way that they are bound by any other international treaty that they have ratified or acceded to. The specific legal obligation to implement the ICESCR is set out in Article 2 as follow:
2(1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, 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.
2(2) The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kinds as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It is clear that Article 2(1) put legal obligations to the State Parties under the ICESCR to progressively implement the rights that it guarantees. Article 2(2) obliges the Government to ensure that everyone, without discrimination, enjoys these rights.
The Three Components Of The Obligations
As part of the ongoing debate as to whether economic, social and cultural rights have the same moral and legal status as other commonly recognized human rights, such as civil and political rights, a three part typology of duties, applicable to all human rights, has been developed. The objective is to show that economic, social and cultural rights share the same basic qualities as other human rights, can therefore be treated same as other human rights and, in particular, are equally capable of being incorporated into national and international legal systems and policy processes. As the Committee has emphasized, every ICESCR right has ‘at least some significant justiciable dimensions’ which, if violated, are appropriately resolved by courts. The typology places the legal obligation to fully realize each right in the ICESCR into three separate duties: to respect protect, and fulfill. Achievement of all of these layers of duties arising from a particular right amounts to full realization of that right, but it is possible that a State may achieve only one or two of the layers of duties, thus falling short of full realization.
The Duty To Respect
The duty to respect the rights enumerated in the ICESCR refers to a State’s negative obligation to refrain from acting in ways that would deprive people of their rights or impair their enjoyment of them, and is immediately applicable. Thus, as the implementation of the rights relating to trade unions in Article 8(1) require no substantial economic input on the part of the State they may be therefore put into effect without delay merely through the exercise of State restraint. Similarly, if the Government was to cut child support or social assistance allowances without ensuring adequate alternative means of support, it may infringe the duty to respect aspects of Articles 11 (adequate standard of living) and 9 (social security). The duty to respect is a minimal undertaking that ensures that individuals are protected from interference by the State, and thus implements rights as negative limits on governmental power. Thus, this duty has minimal resource implications, but, as the social assistance example indicates, it may require the maintenance of existing levels of resource commitment in order to ensure no retrogression in existing levels of social and economic security.
The Duty To Protect
The Committee has both expressly and impliedly established an obligation upon States parties to protect the individual’s interests against third party interference. The duty to protect requires States to act to ensure that third parties do not violate human rights. This duty requires States to take positive measures, for example by adopting appropriate regulatory frameworks, which restrain others from abusing human rights. The Committee is thus clear that the realm of State responsibility extends not only to the acts of agents of the state but also those of third parties over whom the State has or should have control.
The Duty To Fulfil
The duty to fulfil economic, social and cultural rights obliges States to take positive action to ensure that social and economic rights are realized or made accessible to everyone. This obligation requires States to guarantee a specified result, which may involve ensuring an immediate outcome or achieving a minimum standard directed at the progressive realization of a right. Considerable resources are usually required to satisfy the duty to fulfil. Failing to fulfil a right, whether it is to be immediately or progressively is a violation of ICESCR.
Obligations Under Articles 2(1) And 2(2)
The fundamental obligation in the ICESCR is for the States parties to ‘take steps’ towards realizing the rights enumerated in the ICESCR. Although this wording falls short of requiring the Government to ‘guarantee’ economic, social and cultural rights, it is a positive undertaking that has both an immediate and a continuing effect: the Government cannot be inactive, nor just refrain from taking steps that would otherwise result in a violation of the ICESCR. It must act to adopt measures aimed at achieving the ‘full realization’ of the rights covered.
The ICESCR highlights the interdependence of all States in realizing economic, social and cultural rights and, in particular, that certain countries will be reliant on others to assist with economic and technical expertise and resources. The State has an obligation in implementation of the economic, social and cultural rights to utilize maximum of its available resources. The ICESCR has explained that this involves ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights’. The minimum core obligation includes the provision of essential food, essential primary health care, basic shelter and housing, and basic forms of education.
Adoption Of Legislative Measures
This obligation allows a great deal of scope for States to determine the measures they adopt in order to implement the ICESCR. Article 2(2) places special importance on legislative measures, but it clearly also envisages other measures which might include judicial, administrative, financial, educational and social implementation. Consequently, a lack of legislative measures do not necessarily entail a failure to implement the obligations imposed by the ICESCR because alternative measures may suffice and, indeed, in some circumstances, may be more appropriate. Nevertheless, some legislative measures will usually be necessary. Furthermore, legislative means may be desirable because their public nature leaves them open to effective scrutiny. This is significant because, as part of the obligation to implement rights through all appropriate means, the ICESCR has identified an obligation to provide ‘effective remedies’ to those whose ICESCR rights are violated. In particular, the Committee is concerned that States provide sufficient access to judicial remedies. While it is important to recognize that administrative and other non-legislative measures can play an important role in implementing the ICESCR, their adequacy in providing effective remedies must be seriously questioned.
Economic, Social And Cultural Rights Under The Indian Constitution
The leaders of India’s freedom struggle fully realized that in the new dispensation following political freedom, the people should have the fullest opportunities for advancement in the social and economic spheres and that State should make suitable provision for ensuring such progress. For that the framers of the Indian Constitution borrowed the idea of enacting Directive Principles of State policy (DPSP) from the Irish Constitution. The Indian Constitution was adopted on 26 November 1949 by the Constituent Assembly and brought into force on 26 January 1950. The Preamble of the Indian Constitution declares India a Sovereign, Socialist Secular Democratic Republic and sets out main objectives of the Constitution to secure justice for all citizens, social, economic and political. The Indian Constitution envisages a democracy, which ensures freedom under the law and the dignity of the individual. Part III of the Indian Constitution enumerates the fundamental rights and Part IV sets out the Directive Principles of State Policy. While the former guarantees fundamental rights to the individuals, the latter gives direction to the State to provide economic and social rights to its people in specified matters. Together, they constitute the conscience of the Constitution. Articles 12 to 35 of the Indian Constitution deal with Fundamental Rights and Articles 36 to 51 contain the Directive Principles of State Policy. The justiciability of fundamental rights is itself guaranteed under the Indian Constitution. In particular, by virtue of Articles 32 and 226 of the Constitution the responsibility for the enforcement of the fundamental rights lies with the Supreme Court and the High Courts. The forty second Amendment of the Indian Constitution in 1976 has added Part IV A, which deals with the fundamental duties of the citizen. This separation of fundamental rights and Directive Principles of State Policy emphasizes the fact that they are in their nature and effect essentially different. The Directive Principles of State Policy enunciated in Part IV of the Indian Constitution are nothing but principles of Raj Dharma (duty of the State). Article 37 of the Indian Constitution specifically echoes, as the principles laid down are fundamental in the governance of the country. The word fundamental in part III of the Indian Constitution is the word “rights” are legally enforceable, and the word fundamental in the governance of the country in part IV of the Constitution, which are not legally enforceable. Fundamental rights are backed by legal sanctions, Directive Principles of State Policy are left to the sense of the duty to those charged with the governance of the country.
Soon after the commencement of the Indian Constitution the question was raised regarding the Directive Principles of State Policy before the Court in State of Madras v. Champakam Dorairajan, (AIR 1951 SC 226), it was expressed that the Directive Principles of State Policy have to conform and run subsidiary to the Chapter on fundamental rights. By this decision the implementation of economic, social and cultural received setback. However, the Supreme Court in MH Qureshi v. State of Bihar; (AIR 1958 SC 731) propounded the doctrine of harmonious construction, and the doctrine of integrated scheme in I.C. Golak Nath v. State of Punjab (AIR 1967 SC 1943). The Indian Parliament established and judiciary accepted the primacy of Directive Principles through the 25th Amendment of the Indian Constitution. Other agencies of the government legislature and the executive rarely advocated the subordination of the DPSP to fundamental rights. Thus, the view that the DPSP are inferior to fundamental rights, relying on the views of the Constitution maker and Courts is not correct. Directive Principles of State Policy are now in no way subordinate to the fundamental rights, which is firmly established by the Indian judiciary subsequently and also equally recognized by the government.
The Economic, Social and Cultural rights that the Directive Principles of State Policy symbolize that demonstrably can be read as forming part of an enforceable regime of fundamental rights. What then is crucial is the will of the state to implement this constitutional mandate. The agenda of the state can be shaped to a considerable extent by a creative and activist judiciary. The state has to be constantly reminded of its obligations and duties. The actual realization of ESC rights may be a long-drawn affair, but keeping it on the agenda is more than half that effort. The Indian judiciary has through a combination of strategies done just that.
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