SOCIO-ECONOMIC RIGHTS: A FOREVIEW
Human Rights are inalienable in nature and are very fundamental in providing humans a dignified life. If we consider the broader picture, human rights are basically the rights which gives birth to all other rights.
It was between the years 1900-1960 that the world saw general trend of discard towards these human rights primarily due to the World War I, World War II and the Cold War. The genocide and the destructions faced during the world war was alarming. The unprecedented number of casualties, the amount of economic destruction, made the political leaders think about this issue. The formation of League of Nations in 1920 because of Paris Peace Conference which ended the World War I, to maintain world peace wasn’t proving to be very much successful. Hence, the political thinkers and world leaders in the era of changing world and ideologies had to come up with something that could maintain world peace and prevent another world war or any sort of violence. This led to the formation of United Nations Organizations on October 24, 1945.
With the formation of UNO, it was important that the basic rights that the people are entitled to, should be codified and must be made universal. Therefore, with the same objectives it was December 10, 1948 when The Universal Declaration of Human Rights (UDHR) was adopted. It included all the rights that were important for a person to carry out a dignified life and it was duty of the state to protect it.
Since it was a declaration, it wasn’t legally binding but the countries ratifying to it had to take reasonable measures to abide by it morally. The UDHR under broad heads covered rights relating to equality and non-discrimination, the civil and political rights and it also included within itself the economic, social and cultural rights.
It was during the cold war politics where the world saw the Human rights getting divided into two major heads. They were differentiated claiming both have different nature, the state has got a different role to play in realisation of both these rights and the implementation mechanism of both the rights are different. So, it was in the year 1952 when the human rights got divided into civil and political rights and economic, social and cultural rights. After that two covenants, International Covenants on Civil and Political Rights and the other being International Covenant on Economic, Social and Cultural Rights were adopted in the year 1966. The ICESCR came into force 10 years after it was adopted.
The world post World War II was divided into two blocs, the western bloc and the eastern bloc. The western bloc included the countries which were powerful at that time and they were advocating for civil and political rights. These were the countries which didn’t give much attention to the socio-economic rights and thus they thought that socio economic rights are fundamentally different from the civil and political rights, the eastern bloc consisted of the countries which were out of the British colonies or were struggling to do the same. These countries advocated for the second generation or what they called as the positive rights. Where the civil and political rights or the first-generation rights included personal liberty or protection from violence or in general little say in the policies that affected the people, the second-generation rights included the necessities and just and humane conditions of living.
FIRST-GENERATION AND SECOND-GENERATION RIGHTS- DIFFERENT OR INTERDEPENDANT
When the world felt a need to codify the human rights, UDHR was adopted. It included both civil and political rights and economic, social and cultural rights. The civil and political rights were included under Section 3-21 and economic, social and cultural rights were included under Section 22-27 of the UDHR. However, later in the 1950’s the politicians for their benefits started demanding that these rights to be classified under different heads. Although the economic, social and cultural rights include everything that is basic and necessary for human survival, it still took a lot of time to gain acceptance. The same could be inferred from the fact that the ICESCR was adopted by General Assembly in 1966, came into force in 1976 and it was only in 1985 that a Committee on ESC rights was established by the ECOSOC Resolution (1985/17).
The main reason for differentiating both these right and reason that why the politicians all around the world are not ready to acknowledge it is because of its implementation. The main contention behind it is ensuring basic economic, social and cultural rights to all is a tough task to accomplish. It needs a lot of resources and a strong implementing mechanism which is tedious task for the politicians to do. Ensuring the first-generation right i.e. the civil and political right is easy, the reason being they are negative rights, the government has got no role in this, all they need to do to ensure these rights to an individual is to get out of their way. However, the economic, social and cultural rights are the second-generation rights. They are positive in nature as the government has got the duty to intervene and do certain amount of work to ensure that people get all these rights.
It is because of these reasons only that if we look at the different constitutions around the world, we will find the civil and political rights included under the fundamental rights on the other hand the economic social and cultural rights find a place in the directive principles which are not justiciable and are mere aspirations for the governments. In some countries it is because of the lack of the resources, that providing everyone a dignified life is not possible. However, in a number of countries, it is the mere absence of will by the ones who are in power.
It is of the view that both these rights are more of interdependent than different. If both, civil and political rights and economic, social and cultural rights are provided together that could only form what we conclude as dignified life. A person who cannot meet his necessity of food, clothing and shelter has no meaning of right to speech. However, if both these rights are provided together and both get equal attention from the government, this can ensure better living of that individual where he has safety and his necessities are take care of.
AMBIT OF ECONOMIC, SCOIAL AND CULTURAL RIGHTS-
“We are challenged to rid our nation and the world of poverty. Like a monstrous octopus, poverty spreads its nagging, prehensile tentacles into hamlets and villages all over our world. Two third of the people go to bed hungry tonight. They are all ill-housed; they are all ill-nourished; they are all shabbily clad. I’ve seen it in Latin America; I’ve seen it in Africa; I’ve seen this poverty in Asia.” These words by Martin Luther King Jr. clearly states that merely providing civil political rights aren’t enough for the citizens. There are many people who go to the bed hungry, they don’t have roof over their head, no access to clean drinking water, no sanitation facilities and hence with the lack of these amenities they don’t have a proper way to carry out a dignified life.
The ICESCR talks about the right to adequate living for himself and his family which includes basic amenities like food clothing and shelter and improvement in the living conditions. The preamble of the covenant says that free human beings enjoying freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic social and cultural life as well as civil and political rights. Along with this the UDHR also includes rights of medical care and right to security in the event of Unemployment, sickness, disability and widowhood, old age.
Hence with all the declarations, covenants and conventions, the ambit of socio-economic rights becomes very large. In the beginning these rights took time to gain acceptance but after the World Conference on Human Rights in Vienna, 1993 where it was stated that States should strive to eradicate illiteracy and should direct education towards the full development of the human personality and the strengthening of respect for human rights and fundamental freedoms, there were a number of countries which came forward to ratify this covenant. At present there are 169 state parties of this covenant, 4 signatories and 24 have taken no action over it.
The covenant under different articles talks about different rights that an individual and the role of state in ensuring those rights. Article 2 of ICESCR states that the state parties shall take care that the rights enshrined are given to all without discrimination on the basis sex, language or religion or any other kind. Article 6 provides for Right to Work which will include right to choose your work freely and gain living. Article 7 includes Right to just and favourable conditions at work. Article 11 covers a lot of things under it as it provides for Right to an adequate standard of living which includes food, food housing, water, sanitation and clothing and continuous improvement of living conditions. Right to health and right to education are given under article 13-14 and article 15 respectively.
SOCIO ECONOMIC RIGHTS IN DIFFERENT CONSTITUTIONS
Since its realisation socio economic right has found its place in maximum of the constitution, if not as justiciable fundamental rights then as directive principles which plays as a guideline to a state. When talking about socio economic rights, the South African constitutions covers it in the most holistic manner. The constitution framers had a discussion where they had arguments from the sides mainly concerning the fact that what will be the legitimacy of the constitution if socio economic rights are provided. Those who were in the favour argued that if one is dying of hunger he has little concern with what civil political rights he has been provided with. This will question the legitimacy as the state is not able to provide one with the basic needs. However, the people on the opposite side argued that the credibility of the constitution will equally be questionable if the state promises a lot and hence fails to deliver it. Hence after the independence, socio economics rights are too much of promise for the people from the state.
The interim constitution assembly between the year 1994-1997 followed a minimalist approach, as they included mainly the civil and political rights and certain socio-economic rights which were not debatable in Bill of Rights. It mainly included right to education, right to security of child with basic nutrition and basic health. However, in the final draft of the constitution, it was said that the socio-economic rights shall be described as human rights and will be on the same level of the civil and political rights. They were justiciable in the court of law and the responsibility of enforcement was given to two institutions namely the courts and South African Human Rights Commission.
On one hand we have the South African Constitution which proved to be a success after its implementation we have countries like Australia who have ratifies the ICESCR but have still included very few rights, mostly the negative rights, in their constitution. One of the lengthiest and well written constitution of India also includes it under the Directive Principles of the State Policy in the chapter IV of the Indian Constitution. Though not justiciable in the court of law, DPSP still is of major importance to the government. The government must make continuous and reasonable efforts to guarantee a dignified life for individual. In India, the courts from time to time have went on to give meaning to the socio-economic rights in different judgements. Also, they have covered a lot of DPSP’s under the ambit of Article 21 of the Indian Constitution.
As of now the covenant has 169 members who have ratified it. Ratification means that they are going to abide by the covenant and make considerable efforts to meet the aspirations. To check up on the same there have been different committees that have been set up. Few of them are as follows.
Committee on Economic, Social and Cultural Rights- It is a body of independent experts who monitor the implementation of the covenant by its state parties. The state parties must submit regular reports initially within two years and then in every five years. The committee then in the form of concluding observations give their concerns and recommendations for the state parties.
Optional Protocol to International Covenant on Economic, Social and Cultural Rights- This Protocol came into force on 5th May 2013. Any country which, is a state party to this covenant can be covered under this protocol if the ESC rights of an individual or a group has been violated and his country is a party to this covenant. The article 3 of this protocol talks about admissibility which says that the complaint of an individual or a group can only be addressed under this protocol only if he has exhausted all the domestic remedies, however this will not be applicable if its intentionally prolonged by the state.
Different countries at their local level have been working to ensure that nobody is denied of these rights. Also, there are different NGO’s who play an important role in making the government realize towards working and protection of these rights.
The world scenario is ever changing and with it changes the needs and aspirations of people. The way in the 18th century, world saw a rise in the demand for civil political rights in the same way right from 1950’s there has been a constant voice to recognize the socio-economic rights as well. For human, to spend a life as human socio-economic rights are very crucial as they guarantee the basic rights not only for his survival but for a life with pride and dignity. Many countries have come to recognize this which can be clearly seen with the trend in which countries have been ratifying this covenant. But with the mere ratification the picture is not going to change. The fact that poverty is still haunting the countries of Africa and Asia, the fact that a large number of people are still dying of hunger and malnutrition, the fact that basic sanitation facilities are not available to a large scale of population all across the world, the absence of clean and pure drinking water, the absence of a house for living, inhumane and unpaid working atmosphere puts up a bigger responsibility in front of the government. Thus, it is the duty of the government to ensure and protect all these rights specially of the vulnerable class which includes children and women. A better picture of the world can only be painted with the amalgamation of both civil,political rights alongwith socio-economic rights.
Navin Kumar Jaggi
Vaibhav Mani Tripathi