Without necessarily promoting judicial activism, it is worthwile to ask: WHAT IS THE ROLE OF THE COURTS IN PROTECTING ECONOMIC, SOCIAL AND CULTURAL (ECOSOC) RIGHTS OF THE PEOPLE?
The two basic relevant international covenants on the topic are the 1966 International Covenant on Economic, Social and Cultural Rights and the 1948 UN Universal Declaration of Human Rights.
Parenthetically, UN General Assembly Resolution No. 41/128 dated 4 December 1986 contains the Declaration on the Right to Development. Article 6 of the Declaration states:
“1. All States should co-operate with a view to promoting, encouraging and strengthening universal respect for and observance of all human rights and fundamental freedoms for all without any distinction as to race, sex, language or religion.
2. All human rights and fundamental freedoms are indivisible and interdependent; equal attention and urgent consideration should be given to the implementation, promotion and protection of civil, political, economic, social and cultural rights.
3. States should take steps to eliminate obstacles to development resulting from failure to observe civil and political rights, as well as economic, social and cultural rights.”
The 1966 International Covenant on Economic, Social and Cultural Rights guarantees, in particular, the following rights:
1. the right to equality and non-discrimination in the enjoyment of rights – article 2(2) (non-discrimination in general) and article 3 (between men and women);
2. the right to work, including the right to gain one’s living by work freely chosen or accepted – article 6;
3. the right to enjoy just and favourable conditions of work, including fair wages and equal remuneration for work of equal value without distinction of any kind; a decent living for workers and their families; safe and healthy working conditions; equal opportunity to be promoted; rest, leisure and reasonable limitation of working hours and periodic holidays with pay – article 7;
4. the right to form trade unions and join the trade union of one’s choice, including the right to establish national federations or confederations – article 8(1)(a) and (b);
5. the right to strike – article 8(1)(d);
6. the right to social security, including social insurance – article 9;
7. the right to protection and assistance for the family; entry into marriage with free consent, maternity protection; protection and assistance for children and young
persons – article 10(1)-(3);
8. the right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions – article 11(1);
9. the right to the highest attainable standard of physical and mental health – article 12;
10. the right to education – article 13;
11. the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author – article 15(1).
The general legal duties of States parties to give effect to their obligations under the International Covenant on Economic, Social and Cultural Rights are laid down in article 2:
“1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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. The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
3. Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals.”
A question arises: Are Economic, Social and Cultural Rights Justiciable?
The UN Committee on ECOSOC has made clear “that it considers many of the provisions in the Covenant to be capable of immediate implementation,” for instance articles 3, 7(a)(i), 8, 10(3), 13(2)(a), 13(3), 13(4) and 15(3). These provisions, which the Committee cites by way of example, contain the following rights:
1, the right to equality between men and women in the enjoyment of rights – article 3;
2. the right to fair wages and equal remuneration for work of equal value – article 7(a)(i);
3. the right to form trade unions that can function freely; the right to strike – article 8;
4. the right of children and young people to special measures of protection and assistance, to be taken without discrimination – article 10(3);
5. the right to free compulsory primary education for all – article 13(2)(a);
6. the right of parents or legal guardians to choose for their children schools other than public schools to ensure religious and moral education in conformity with their convictions – article 13(3);
7. the right of individuals and bodies to establish and direct educational institutions in conformity with legal standards – article 13(4);
8. the freedom indispensable for scientific research and creative activity – article 15(3).
On the issue of justiciability of the rights contained in the International Covenant on Economic, Social and Cultural Rights, the Committee has noted that in most States, the determination of whether or not a treaty provision is self-executing will be a matter for the courts, not the executive or the legislature. In order to perform that function effectively, the relevant
courts and tribunals must be made aware of the nature and implications of the Covenant and of the important role of judicial remedies in its implementation. Thus, for example, when Governments are involved in court proceedings, they should promote interpretations of domestic laws which give effect to their Covenant obligations.
Another question is: What must be the Role of Judges, Prosecutors and Lawyers in the Protection of Economic, Social and Cultural Rights?
The legal professions have an essential role to play in promoting the protection of economic, social and cultural rights, a role that is particularly important for the most vulnerable groups in society.
Source: Univ. of Minnsota Human Righs Library
Digested by:
Atty. Manuel J. Laserna Jr.
