Economic social and cultural rights: we can do better?

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Geraldine Whiteford 

Human rights are claims made by the international community that ensure the dignity, freedom and security of all human beings. We discussed this in a recent blog. But to be human rights something more is required: some person or agency must have a duty to respect, protect and fulfil those rights and the failure of that duty should lead to a sanction or remedy.  

Several of these rights are widely known. Lawyers, academics, and government policymakers are all familiar with them, and many other people draw on them in political discourse too. The International Covenant on Economic, Social and Cultural Rights (ICESR), ratified by New Zealand on 28 December 1978, sets them out. They include the right to just and favourable conditions of work, the right of everyone to social security and an adequate standard of living including adequate food, clothing and housing and the right to the enjoyment of the highest attainable standards of physical and mental health.

Aotearoa ratified the ICESR at the same time as the International Covenant on Civil and Political Rights (ICCPR). Its core rights are equally well known. They include the right to life, not to be subjected to cruel inhuman or degrading treatment or punishment, not to be subjected to arbitrary arrest or detention, the right to natural justice, the right of peaceful assembly and the right to freedom of movement.

Unlike ECSR, civil and political rights are incorporated into the New Zealand Bill of Rights Act 1990 (NZBORA). As a result, breaches of these rights are frequently heard in New Zealand courts and effective remedies granted. A very recent example is Vincent v NZ Parole Board [2020] NZHC 3316 in which the High Court held that Mr Vincent, having served 52 years of preventive detention and now with dementia and very poor health, was being subjected to arbitrary detention.

Apart from discrimination cases and employment rights, breaches of ECSR cannot be determined by the courts. The homeless family living in a damp and crowded garage does not have a judicial remedy.  For this reason, the Human Rights Foundation has consistently called ESCR to be included in the NZBORA.

Resistance to including ESCR in the NZBORA is based on the arguments that judges are incapable in adjudicating in areas of social policy, that the separation of powers prevents courts from engaging in areas that are the realm of the legislature and executive and that ESCR are part of a secondary class of rights to civil and political rights.

Yet overseas courts, when provided with comprehensive expert evidence, have impartially faced these challenges and provided remedies. Just three examples: in R (Bernard) v Enfield LBC, the Court held that the time it took the public authorities to supply adequate housing to a disabled person was unreasonable and awarded damages to the applicant. In a South African case, the Moonlight case, the South African Constitutional Court ruled on the State’s role in evictions by private landlords. It held that the state had obligations in restricting private evictions, for example, providing state-supervised alternative accommodation. In Republic of South Africa v Grootboom et al, the South African Constitutional Court affirmed the right to adequate housing, its close links to civil and political rights and to other ESC rights and the States’ obligations to take steps to ensure the progressive realisation of that right.  

Given the indivisibility of all human rights, the fact that ECSR are essential for fulfilling all civil and political rights, (for example people without adequate technology had difficulty in voting in the last election) and the proud independence of the judiciary in Aotearoa, it is time for ESCR to be fully incorporated into domestic law and made the subject of judicial scrutiny.

NOTE: The Human Rights Foundation’s blog presents a human rights perspective on current issues. Through it, we aim to highlight human rights in general, as they provide: (1) a set of agreed international standards, under which governments, including ours, have obligations to their peoples; (2) information on policies and practices which can be useful models for adapting to local conditions.