7 - Economic, Social and Cultural Rights

Question 1

Principal instruments codifying ESC rights? (5)

Answer 1

1/ UDHR (Arts. 22-27)

2/ ICESCR

3/ European Social Charter

4/ AP to the ACHR in the Area of ESC Rights

5/ ACHPR, Arts 14-17

Question 2

What do the different instruments codifying ESC rights illustrate? (2)

Answer 2

1/ reluctance of States to be bound by immediate obligations (see wording preamble/provisions)

2/ ESC rights codified in separate documents with different enforcement mechanisms

Question 3

What are the characteristics of HR according to the 1993 World Conference on HR? (4)

Answer 3

1/ universal
2/ indivisible
3/ interdependent
4/ interrelated

Question 4

Difference btwn civil&political rights and ESC rights? (3)

Answer 4

1/ civil&political rights focus on freedom from State interference

2/ ESC rights turn to the State for protection and assistance

3/ Eide: ESC rights requires social integration, solidarity and equality (–> political dynamic)

Question 5

What are examples of ESC rights? (3)

Answer 5

1/ social rights : adequate standard of living

2/ economic rights : property, work, social security

3/ cultural rights : take part in cultural life, enjoy benefits of scientific progress

Question 6

What are some reasons that led to belief ESC rights are different from civil&political rights? (4)

Answer 6

1/ ideological/political (Cold War)

2/ imperialist/post-colonial (not wish for colonies to obtain ESC rights)

3/ economic (perceived as expensive)

4/ etc

Question 7

Characteristics of the “othering” of ESC rights? (4)

Answer 7

1/ separated from civil&political rights by UNGA in 1951 for BoR

2/ political dimension (socialism v free market economics)

3/ division regarding implementation

4/ ESC rights viewed as programmatic, to be realized gradually

Question 8

Why are ESC rights often viewed as being qualitatively different from civil&political rights? (4)

Answer 8

1/ ESC rights seen as more political (not justiciable)

2/ ESC viewed as costly and burdensome

3/ neglect and slow progress in elucidating content of ESC rights

4/ see however new innovative forms of strategic litigation to make ESC rights more visible + effective (piggyback ESC rights violations onto civil&political rights)

Question 9

Is there a consensus on ESC rights? (2)

Answer 9

1/ according to Eide, ESC rights found acceptance at int. level before civil&political rights

2/ see for example creation of ILO in 1919

Question 10

What is the nature of State obligations with respect to ESC rights? (2)

Answer 10

1/ Progressive realization of ESC rights rather than immediate effect

2/ Art 2(1) ICESCR

Question 11

Characteristics progressive realization of ESC rights? (4)

Answer 11

1/ recognizes resources constraints

2/ but seems to undermine robustness of State obligations

3/ there must however be minimal levels of protection, fulfilment and respect (Bantekas and Oette)

4/ moreover, some rights require immediate realization (eg right to food)

Question 12

Questions surrounding progressive realization ESC rights? (3)

Answer 12

1/ are ESC rights justiciable?

2/ can individuals claim any immediate entitlements?

3/ can the notion be abused by States?

Question 13

How to understand progressive realization? (2)

Answer 13

see CESCR, General Comment 3

1/ deliberate, concrete and targeted steps towards realization must be taken within a reasonably short time after entry into force Covenant

2/ the obligation must not be deprived of any meaningful content

Question 14

2 specificities of ESC rights?

Answer 14

1/ maximum available resources

2/ minimum core obligations

Question 15

A basic premise of the Covenant despite fact that there may be limitations in terms of financial resources?

Answer 15

Resource scarcity cannot be used as an excuse to not ensure minimum levels of protection

Question 16

What is a fundamental characteristic of the nature of the CESCR?

Answer 16

It is politically and economically neutral

Question 17

Extraterritoriality and ESC rights? (2)

Answer 17

see Maastricht Principles on Extraterritorial Obligations of States in the Area of ESC Rights (2011)

1/ obligations when State exercises authority or effective control

2/ obligations when State acts or omissions bring about foreseeable effects on enjoyment of ESC rights (within and outside territory)

Question 18

What is a fundamental characteristic of the right to an adequate standard of living?

Answer 18

It is a composit right (life of dignity depends on adequate standard of living)

Question 19

Duties and obligations of States with respect to the right to an adequate standard of living? (2)

Answer 19

1/ States must intervene when ind. unable to provide an adequate standard of living

2/ obligation to respect, protect and fulfil

Question 20

Rights related to the right to an adequate standard of living? (5)

Answer 20

1/ right to food

2/ right to water

3/ right to housing

4/ right to the highest attainable standard of health

5/ right to social security

Question 21

Is there still a legal obligation on States under ESC rights when it faces resource constraints? (2)

Answer 21

1/ CESCR GC 3

2/ even where severe resource constraint (no matter why) vulnerable members of society must still be protected by low-cost targeted programs

Question 22

What are the minimum core obligations on States under ESC rights? (4)

Answer 22

1/ CESCR GC 3

2/ where significant number of ind. deprived of essential foodstuff/primary care/basic shelter/basic education –> State violate obligations

3) account in assessing violation must be taken of reource constraints

4/ State must demonstrate every effort made to use all resources at disposition in effort to meet, AS A MATTER OF PRIORITY, the minimum obligations