HUMAN RIGHTS HSC Legal Studies Day Dr Luis Gómez Romero
ECONOMIC AND SOCIAL RIGHTS
TWO CATEGORIES OF RIGHTS The Universal Declaration of Human Rights (UDHR) includes two categories of rights: Civil and political rights, which are further developed in the International Covenant on Civil and Political Rights (ICCPR) Economic, social and cultural rights, which are further developed in the International Covenant on Economic, Social and Cultural Rights (ICESCR)
A FAMOUS SPEECH We have come to the clear realization of the fact that true individual freedom cannot exist without economic security and independence. Necessitous men are not free men. People who are hungry and out of jobs are the stuff of which dictatorships are made. Franklin D. Roosevelt State of the Union Address January 11, 1944
THE FOUR FREEDOMS Freedom of speech Freedom of worship Freedom from want Freedom for fear
ECONOMIC, SOCIAL AND CULTURAL RIGHTS (FREEDOM FROM WANT!) Right to work (articles 6, 7 and 8 ICESCR) Right to Social Security (article 9) Right to protection and assistance for the family (and prohibition of child labour) (article 10) Right to an adequate standard of living (article 11) Right to adequate food Right to adequate housing Right to water and sanitation Right to health (article 12) Right to education (articles 14 and 14) Right to take part in cultural life (article 15) 6
Economic, social and cultural rights pursue freedom through substantive equality. 7 Document title
ON EQUALITY (FORMAL AND SUBSTANTIVE)
FORMAL EQUALITY Treat like cases as like Aristotle Nichomachean Ethics 1131a10- b15
SUBSTANTIVE EQUALITY [ ] by equality, we should understand, not that the degrees of power and riches are to be absolutely identical for everybody; but that power shall never be great enough for violence, and shall always be exercised by virtue of rank and law; and that, in respect of riches, no citizen shall ever be wealthy enough to buy another, and none poor enough to be forced to sell himself. Jean-Jacques Rousseau Du contrat social ou Principes du droit politique (1762) Book II, Ch. XI
Substantive equality inspired the promise of the French Revolution: thou shalt be (equally) free!
DECLARATION OF THE RIGHTS OF MAN AND CITIZEN (1789) Article 1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.
ECONOMIC, SOCIAL AND CULTURAL RIGHTS UNDER INTERNATIONAL HUMAN RIGHTS LAW 13 Document title
SECOND CLASS RIGHTS? Civil & Political Rights Immediate implementation (art 2 ICCPR) Cost-free Negative obligations (obligations not to interfere) Economic, Social & Cultural Rights Progressive realization (art 2 ICESCR) Requirement of financial resources Positive obligations (obligations to actively take measures)
This approach is simply wrong: human rights are indivisible, interdependent and interrelated (see Vienna Declaration and Programme of Action, 1993) http:/ / www.ohchr.org/ EN/ ProfessionalInterest/ Pages / Vienna.aspx
PROGRESSIVE IMPLEMENTATION Economic and social rights were originally conceived as standards of achievement. Each State Party to the ICESCR must 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 economic, social and cultural rights by all appropriate means, including particularly the adoption of legislative measures (article 2(1) ICESCR).
IMPLEMENTATION OF HUMAN RIGHTS OBLIGATIONS Human rights should be secured at three levels (see, for example, CESCR, General Comment 12, paragraphs 43-51): Respect Protect Fulfil
THE IMPORTANCE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ON YOUR OWN BODIES!) 18
WHY ARE ECONOMIC, SOCIAL AND CULTURAL RIGHTS IMPORTANT?
Legal doctrine classifies social, economic and cultural rights as instrumental rights, that is, as instruments for achieving an optimal distribution of basic goods (including other rights) and interests across society. These rights, however, have quite deeper effects in our lives
Economic, social and cultural Rights are important because of the profound impact they have on our bodies and minds
AN EXAMPLE FROM FAR AWAY COCHABAMBA WATER WARS 23 Document title
RIGHT TO WATER (CESCR, GENERAL COMMENT 15) The human right to water is indispensable for leading a life in human dignity The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival Water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights. Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination. http:/ / hrlibrary.umn.edu/ gencomm/ escgencom15.htm 24
What would you do if water was taken away from your homes and the people you love? https:/ /www.youtube.co m/ watch?v= hn9wujk0ho4
TWO EXAMPLES CLOSE TO HOME HIGHER EDUCATION & HOUSING 26
CUTS IN UNIVERSITY FUNDING In 2017, the government made a proposal to increase fees for all university courses by 1.8% each year from 2018 to 2022, with a final 0.3% rise taking it to a total 7.5% increase. Students would also be forced to pay back their HELP loans sooner. The Senate blocked this plan. The federal government then moved to cut $2.2bn from universities through a two- year freeze in commonwealth grants funding for teaching and learning. From 2018, the Government will cap the amount of funding it pays to universities for bachelor courses. In 2018 and 2019, the cap will be set at the funding provided in 2017. From 2020, the amount of funding growth will be linked to performance requirements. We re trying to maintain fairness and equity across this system. http:/ / www.abc.net.au/ news/ 2017-05- 01/ university-fees-to-rise-in- federalgovernment- education- shakeup/ 8487564 In other words, universities need to find ways to meet growing demand, while dealing with stagnant funding in the years to come. Senator Simon Birmingham
HIGHER EDUCATION UNDER INTERNATIONAL HUMAN RIGHTS LAW According to article 13(1) of the ICESCR, [t]he States Parties [ ] recognize the right of everyone to education. Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education (article 13(2- c)). The CESCR has established that higher education must be both available (State parties should have sufficient functioning educational institutions) and accessible (educational institutions and programmes have to be open to everyone, without discrimination, which means they must become progressively affordable for everyone) (see General Comment 13, paragraphs 6 & 17). States parties to the ICESCR have an obligation to take concrete steps towards achieving free secondary and higher education. (General Comment 13, UN Doc E/ C.12/ 1999/ 10 (1999) [14 & 20]).
Under international human rights law, regressive measures restrictive of economic, social and cultural rights are forbidden (article 2, ICESCR)
THE COST OF HOUSING The latest Household Income and Labour Dynamics in Australia report (known as HILDA) has highlighted a persistent income stagnation. Between 2014 and 2015, household income slightly declined in real terms. See: http:/ /melbourneinstitute.unimelb.edu.au/ hilda The HILDA report revealed that mortgage debt for 18- to-39- year- olds has almost doubled since 2002, with the average debt on owner- occupied homes rising from $174,000 to $337,000. This amounts to a 93% increase. Public housing in Melbourne The percentage of 18-to-39-year-olds with property declined by 10.5 percentage points between 2002 and 2014. The costs of housing are driving up the poverty rate by 3.3%points, to 13.3%. In other words, the cost of housing causes an additional 613,000 people to fall below the poverty line.
HOUSING UNDER INTERNATIONAL HUMAN RIGHTS LAW In terms of article 11(1) of the ICESCR, the right of everyone to an adequate standard of living for himself and his family includes adequate food, clothing and housing, and to the continuous improvement of living conditions. The CESCR has established that the right to housing should be seen as the right to live somewhere in security, peace and dignity. (CESCR General Comment 4, paragraph 7). The reference in article 11 (1) must be read as referring not just to housing but to adequate housing. Adequacy involves both security of tenure and affordability, as personal or household financial costs associated with housing should be at such a level that the attainment and satisfaction of other basic needs are not threatened or compromised. (CESCR, General Comment 4, paragraph 8).
Under international human rights law, states have the obligation to respect, protect and fulfil the right to adequate housing. The obligation to fulfil unfolds into the obligations to facilitate, promote and provide. The state must pro- actively engage in activities intended to strengthen people s access to and utilization of resources and means to ensure the appropriate realisation of a right. The state must also arrange the enjoyment of the right for individuals or groups who, for reasons beyond their control, are unable to benefit from a right by the means at their disposal (CESCR General Comment 12, paragraph 15).
WHAT ARE THE CONSEQUENCES OF THESE AUSTRALIAN POLICIES OVER THE BODIES OF UNIVERSITY STUDENTS OR HOMELESS PEOPLE?
34 WHAT IS TO BE DONE?
THE SOCIAL GUARANTEE OF RIGHTS «The social guarantee consists in the action of all to secure to each the enjoyment and the maintenance of his rights: this guarantee rests upon the national sovereignty» Declaration of the Rights of Man and Citizen (1793) Article 23
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