Making underpin the aspiration to a world

Making connections between human
rights and social justice.

 

Although today we may have an
impression that we live in a fair and just society, there are numerous challenges
our society faces. There are 1.4 billion people in the world living in extreme poverty.
According to UNICEF, 22,000 children die each day due to poverty. 3.6 million
children live in poverty in the UK. That’s one in four! Water problems affect
half of humanity with about 1.1 billion people in developing countries with
inadequate access to water, and 2.6 billion lack basic sanitation. These are
just a few of the issues we need to deal with. The United Nations have
attempted to tackle these problems by adopting the Universal Declaration of
Human Rights (UDHR).

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Oxford Dictionary of Law gives a
definition of human rights as rights and freedoms to which every human being is
entitled and in theory these rights are protected against breaches by a state which
in some cases may be enforced by international law.

However, that definition is very
basic. A better description of human rights can be given from an article by the
UN High Commissioner for Human Rights Navanethem Pillay who said that ‘Human
Rights underpin the aspiration to a world in which every man, woman and child
lives free from hunger and protected from oppression, violence and
discrimination, with the benefits of housing, healthcare, education and
opportunity’1
So then it seems like Human Rights are the right solution for the issues we are
facing. In this essay, I will first look at what human rights are and how they
help tackle the problems in our society and then I will also be look at social
justice and why that is important. In the end, I will try to make connections
between both human rights and social justice and see how they complement each
other.

 

There are three main types of human
rights. These are Civil and Political rights, which aim to protect individuals’
freedom from infringement by states, social organisations and private
individuals. These rights are often described as negative rights because the
prohibit the state from doing something. Economic, social and cultural rights
(ESRs) are socio-economic rights which focus on the right to housing, right to health
and the right to science and culture. ESRs can be described as positive rights
as they require a state to do something. And Group rights, which are rights
held by a group such as trade unions, corporations and political parties2.

 

 

The UDHR covers 30 Civil and
Political rights. In my opinion, Article 15 of the UDHR is a very important
article which states that everyone has the right to a nationality and no one
shall be arbitrarily deprived of his nationality nor denied the right to change
his nationality. A right to a nationality is important as it enables a person to
be entitled to a series of rights such as being able to vote, being able to
access public funds for things such as healthcare and education. A more
important example of why this article is important can be seen in Nazi Germany
where the withdrawal of the nationality and citizenship of millions of citizens
allowed the state to confiscate their property3.

 

Article 23 of the UDHR provides the
rights to work and the freedom to employment in fair working conditions with
the protection against unemployment. This undoubtedly helps the vulnerable
people in the society find and retain work by the means of which they can then
accord to pay for decent housing, education and other social benefits.

 

Social justice is concerned with
the fair and just distribution of society’s resources which are important for
wealth, health, justice and opportunity. It supports the communities vulnerable
to these issues by empowering communities, Advocacy, tackling injustice through
policy, legislation and using human rights.

 

The main objectives of human rights
are to provide freedom, dignity, security and well-being. The international
covenant on economic, social and cultural rights lays down the ESRs that can
help bring social justice to the people by identifying the interests of the
groups who may be disadvantaged or vulnerable in society. ESRs also promote
social justice by guaranteeing freedom to do something such as the freedom to
live a healthy life, or by guaranteeing freedom from something such as the
freedom from poverty.4
This meets another objective of human rights which is to provide dignity. By
providing security, the ESRs promote social justice by guaranteeing
entitlements to necessities’ such as food and water and safeguarding the social
benefits promotes social justice by safeguarding healthcare and education.

 

Hina Jilani, The Advocate of the
Supreme Court of Pakistan has stated the importance of human rights and how
they help us achieve social justice. She said, “The human rights framework
provides the essential components for effective remedies in the form of
redress, compensation, and reparation, through institutions that are
independent and impartial and adhere to basic principle of human dignity”5
What she means here is that the human rights provide a legal basis for there to
be social justice It contributes to justice by setting standards for government
policy and conduct6.

 

Navanethem Pillay, UN High
commissioner of Human rights also gave her opinion in Moeckli where she stated
that she saw the importance of Article 1 of the UDHR as she tried to find a job
as a lawyer in South Africa after the apartheid. She says, “The power of the
rights made it possible for an ever-expanding number of people, people like
myself to claim freedom, equality, justice, and well-being” She further stated
how human rights complement social justice “The language of human rights makes
manifest the relationship between fundamental freedoms and social justice, and
the connection of these elements with peace and security.”

 

A case where the state has been
challenged in court over is DH v Czech
Republic (2008), In this case a group of Czech national of Roma origin
claimed that the state had violated their Article 14 rights by placing them in
special schools and claimed racial discrimination. Although the court held six
votes to one, that the article 14 rights had not been violated as the school
wasn’t just for students from Roma origin and based on psychological tests,
this is an example of where the Human rights have given people an opportunity
to challenge the state where they may feel they have been wronged.

 

However, there have been criticisms
about connecting human rights and social justice. The Hartley Dean article stated that the ESRs are more important
fostering social justice by the means of creating incentive structures,
furnishing appropriate regulation and facilitating participation. It has also
been stated that it is a very unambiguous process to determine whether the
Civil and Political rights have been violated. The ESRs here seem to act as a
better framework (Sara Burke: Will human
rights help us get social justice)7 . The
Hartley Dean article also gave an opinion that the best solution for tackling
poverty favours free trade and the liberalisation of financial markets, the
privatisation and deregulation of economic production and flexible labour
markets taking a more capitalist approach here.

 

After considering all of the above,
looking at what the human rights articles in the UDHR stated and looking at the
objectives of Social justice and development I think we can make a connection
between the two. Human rights have been look in a way as the language on which
social justice is framed. We have seen that the case of DH v Czech Repulic (2008), Article 14 rights were used as a framework
to take a potential violation of rights. Most of these rights protect and
support the social development of our society such as empowering communities by
the means of Education. We have also seen statements from Navanethem Pillay,
the UN High commissioner of Human rights who gave her opinion on how “The power
of the rights made it possible for an ever-expanding number of people, people
like myself to claim freedom, equality, justice, and well-being”. However a
better description of both human rights and social justice was given by Amartya
Sen who contributed in the publication Human
Development Report 2000 where she said that human rights nourished our
freedom, while development nourishes our capabilities8.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ESRs are
not enforceable by the courts.

 

In the
first part of this essay we talked about how human rights connects with social
justice. We looked at all the different such as civil and political rights and
the economic, social and cultural rights (ESRs) as well as their basic functions.
However, we did come across a few opinions that stated that ESRs have a bigger
impact on social justice and human development than the civil and political
rights. In this essay, we are asked to consider the question that ESRs are not
enforceable by the courts. To do this I will first give a brief introduction on
both civil and political rights as well as ESRs and then move on to discuss the
enforcement of these rights. I aim to cover views both sides that object and
support the enforcement of ESRs as well as include some case examples before
concluding.

 

There are
three main types of human rights. Civil and political rights, which were the
first generation of human rights that emerged during the 19th
century. These rights have been mainly focused on property rights, religion
rights, and about the liberty of thought. These rights have been preventing the
state to interfere with the person and that’s why they are often described as
negative rights. The main rights we are concerned with in this essay are the
Economic and Social rights(ESRs) that are the second generation of human rights
that emerged during the 20th century. These rights have been
described as having more of a focus on social justice as they are about
providing the resources such as healthcare, schools, decent wages and social
security to tackle the social problems faced by our society. Since ESRs require
the state to do something they are often described as positive rights.

 

The
international covenant on Economic, Social and Cultural Rights laid down the
main Economic, Social and Cultural Rights. However, for judges to enforce the
ICESCR in national courts, the state needs to become a signatory to the ICESCR
and then incorporate the ICESCR into its national law. Once they have become a
part of the national law a violation of these rights can then be brought into
court through the process of adjudication. The Limburg Principles on the
Implementation of the ICESCR stated in paras 7 and 8 that “Although the full realization of the rights
recognized in the Covenant is to be attained progressively, the application of some rights can be made justiciable immediately
while other rights can become justiciable over time” This also states the
challenge sometimes faced as it can take some time for these rights to become
enforceable. 

 

There have been criticisms however about the way the ESRs can be
enforced. The European Human Rights Law Review had an article written by Navish
Jheelan where the ideal of enforceability of socio economic rights was
discussed. The first argument against the enforceability of ESRs has been that
they are not as precise as civil and political rights. Scott and Macklem said
that “social rights often suffer from a painful lack of precision with respect
to the nature and extent of the obligations that attach to the state party”
What he means by that is that these rights are imprecise and vague. He gives an
example of the right to an adequate standard of living and has questioned the
capability of the courts to enforce such rights. The UK government state
party report on committee on economic Social and Cultural rights in 2008
also commented on the vagueness of these articles stating that the standards of
adequate living are likely to vary between individuals9.

However, there has been a rebuttal of the criticism in the same journal
where Wall made the point that “it is up to the courts to define these rights
and that they are capable of doing so given that they are called upon on a
regular basis to define other imprecise concepts such as “reasonable man””10 with Pieterse adding
“interpreting legal texts is what courts do best”11

 

Another criticism about the enforcement of ESRs has been that they are
not democratic as the allocation of the resources for the enforcement of ESRs
should be a matter for the politicians and not the judges12. Opponents to judicial
enforcement of ESRs have also argued that it would breach a separation of
powers and create a “judicial dictatorship” whereby according to Beatty
granting too much power to the judiciary can threaten democracy13. 

 

There have however also been rebuttals for this argument,
one of these can be seen in the case of State
of Himachal Pradesh v Parent of a Student of Medical College, Simla where
the Supreme Court intervened to remind the judiciary that it could not compel
the Parliament to legislate when the High Court tried to exert pressure on the
government to enact legislation. This case clearly shows that the judiciary can
sanction any attempt to judicial dictatorship.14

 

There has also been an argument that the budgetary
constraints in a country can make the enforcements of these ESRs impossible
since they can be positive in nature. This states that a lot of countries
simply do not have the resources to guarantee those social, economic and
cultural rights. The European Court of Human Rights recognised this in the case
of McCann v United Kingdom where the
state was under a duty to investigate suspicions deaths of individuals in state
custody. Investigations such as these can require the government to spend a lot
of money. Tushnet also pointed out that although the civil and political rights
can cost money if they lead to an official investigation, the socio-economic
rights cost far more such as for the construction of housing15.

 

Another argument has been made where the competence of the
judiciary has been questioned stating that the judges are not trained to
adjudicate social rights and that they are no equipped to access the real
ground situation of whether there has been a breach of the social and economic
rights. However this also has a counter argument that training would help and
and that the judiciary is already involved in determining cases involving ESRs.
Lord Steyn said ‘Most legislation is
passed to advance a policy. And frequently it involves in one way or another
the allocation of resources. … In common law adjudication, it is an everyday
occurrence for courts to consider, together with principled arguments, the
balance sheet of policy advantages and disadvantages. It would be a matter of
public disquiet if the courts did not do so. … there is no need to create a
legal principle requiring  the courts to
abstain from ruling on policy matters or allocation of resource issues.’

The South African
Constitution Bill of Rights has been an excellent example of the enforcement of
social and economic rights. Ellie Palmer stated that “the South African
constitution not only enumerates a range of protected socio economic rights, it
requires collective power to advance ideals of freedom, quality, dignity and
social justice”. An example of this is a case Minister of Health v Treatment
Action Campaign (2005) where the court heard from the government regarding
the governments reasons for withholding HIV prevention medicine but they
rejected them and the court issued declaration on the inadequacy of the
measures taken.

 

In conclusion, I
think it is fair to say that social, economic and cultural rights (ESRs) are
capable of being legally enforced in the courts. There have been arguments
against the enforcement by courts such as the judicial dictatorship or the
democracy argument or the costs related to the enforcement however all these
arguments have been shown to contain discrepancies. As Pieterse put it in the
European Human Rights Review “whether we like it or not, socio-economic rights
are just as justiciable as civil and political rights”16

 

 

 

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