Course 20

Question 1

What are economic, social and cultural rights?

Answer 1

Rights that focus on let’s say the material conditions of human beings. Marxists brought up that a lot of the civil and political rights were mere illusions: these rights are way more about social security, labor rights. International labor organization = predecessor of the development of social and economic rights.

Right to leisure also: the right to take part in cultural development, right to education = all in the universal declaration. Linked to the welfare states. Social security systems.

Difficulties to turn the universal declaration into one single binding legal document so we ended up with 2 conventions:

• Most important one: International covenant on economic, social and cultural rights.

Question 2

What is the monitoring system of the international covenant on economic, social and cultural rights

Answer 2

Independent committee on economic, social and cultural rights. There is State report system of course and there is of course the possibility of a complaint mechanism which was included in the protocol which has been ratified by Belgium.

Question 3

What is the European counterpart to the international covenant on economic, social and cultural rights

Answer 3

European social charter of 1961 and revised in 1996: specific design containing a part on policies and so which in a way contains obligations for states to consider all economic and social rights as the aim of their policies and then coming with specific obligations in part 2 on those rights.

Then having a third part where there is a kind of à la carte system where states can select, they have to take a minimum but it develops a system of commitments in terms of respecting rights that states can choose. This is often called the à la carte system and then of course this social charter, European social charter has been revised 1996 which mainly means that some newer so to say, rights are added to the list and they reflect of course changes in society. 34 states now I checked it, have ratified it so that is the revised social charter.

Question 4

What is the monitoring system of the revised social charter?

Answer 4

Then you know that of course this revised social charter has a specific monitoring system there is a system once again of state reports. The monitoring body is not the European court of human rights. The monitoring body is a committee, the European committee on social rights. Now there is a complaint system but it is not ratified by all states, not at all, add presents and I have checked it, I think they are 13 states that ratified it.

Question 5

What is the complaint system of the revised social charter?

Answer 5

Only 13 states have ratified so not a lot of states have recognized the complaint mechanism: already rather limited that is already an indication of states wanting to limit so to say this international scrutiny of course.

Also collective complaint mechanism: it’s collective for it does not allow for individuals to file a complaint whenever they think their economic social and cultural rights are violated.

• Recognized NGO’s by the council of Europe: they have to be active in at least a number of states
• Traditional social partners: trade unions, employers unions,…
• Recognize standing.

Weak point because you as a potential victim cannot go directly to Turin, you need to find the support of a recognized organisation.

Question 6

What are the cases against Belgium? Why are there so little?

Answer 6

Very limited when compared to Strasbourg cases. The difference is striking because as a citizen you do not have that standing so you need to find eg. a trade union that is willing to take your case to the committe of experts. They will only do that if it is in their own interest, so only when it is related to state labor law protection.

Belgian system is based on: neo corporate system whereby the state, employers’ associations, employees associations together manage the social welfare state and they are owners. They have an ownership to the system they feel they are part of it although they are neither the employers unions nor labor unions there and not official public institutions but they are in the system in our system they have a quasi-official role. A lot of of equilibrium in between the various interest at stake and it functions very well. But it entails also a kind of idea that in those areas labor law, social security law outsiders should not interfere too much with the existing system.

There is already extensive internal judicial protection when it comes to labour law. So going to Turin is in a way admitting that somehow the system is not functioning as it should = motion of distrust, almost a motion of no confidence. This could lead to retaliation. It’s an area in law where our institutionalized partners want to solve the issues amongst themselves. And going outside the context will already be problematic within the national context.

Question 7

What are the negative obligations when it comes to civil and political rights?

Answer 7

• You shall not interfere. They are immediate and they are justiciable. You can easily bring them before a court. Judges won’t feel very much under pressure from a point of view of the separation of powers. They will have the feeling that they can decide freely. The costs of course of the rights are fairly limited and there of course there is a difference with the economic, social and cultural rights where there is of course, they are positive obligations. They call for an active intervention of states.

Question 8

What are the positive obligations when it comes to civil and political rights?

Answer 8

Mostly positive obligations that call for an active intervention, it won’t be a matter of having an immediate realization. It’s a matter of a progressive realization, gradual steps. Bringing them before judges is of course possible the judges will be much more inclined to think in terms of separation of powers. It’s not up for the judge decide, to take this policy position. On the international level you will see that social, political and cultural rights are much more protected by political bodies rather than monitored by courts.

This is the reason that international human rights protection is mostly focused in the area of civil and political rights and less in the area of social and economic rights. When it comes to off course the differences between those categories. But these differences should not be overstated!

Question 9

What are the Differences between civil and political rights, and economic, social and cultural rights

Answer 9

European convention is mainly about civil and political rights = negative rights but in a lot of ways, interrelated with social and economic rights:

• Eg. right to peacefully assemble, the right to create unions
• Freedom of expression but also freedom of assembly.

Strasbourg Court: art. 11 on the right to reunion Demir and Baykara, went very far and even would read a right to collective bargaining into article 11 of the convention, so that goes of course very far.

Question 10

What is art. 2 of the covenant on economic, social and cultural rights

Answer 10

Enlightening for the precise obligations of the states when it comes to economic, social and cultural rights: “Each state party undertakes to take steps to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognized in the present covenant by all appropriate means. Now this is a way of reading it. There is another way of reading it and it is just changing the stress. Each state party undertakes to take steps to the maximum of its available resources, with the view to achieving progressively the full realisation of the rights recognized in this covenant by all appropriate means.

A lot of ambiguity!

Question 11

What are the general comments?

Answer 11

UN committee on economic, social and cultural rights, which is the monitoring body of that specific covenant, comes up with general comments.

General comments are explanations of articles in the covenant or in the treaties and how those articles should be read, what is really the scope of the articles. It did so in 1990 with general comment nr. 3: general comment nr. 3 explains what the obligations then are, so how we should interpret this provision that I read. And so it says there is a progressive obligation, and that is in the long run, but progressive realisation does not mean that there can’t be some obligations with immediate effect. It states that there are some obligations that have immediate effect.

Progressive realisation: only in exceptional cases compatible with the idea of retrogressive measures

Question 12

What are the standstill obligations?

Answer 12

If there is a dramatic decrease of financial resources: are states forced to maintain the proection (social protection, social security system) that was available when there were more resources: eg. in financial crisis.

Standstill obligation: art. 23 of Belgian constitution: a standstill obligation, meaning that once a certain level of protection of rights is assured, you cannot go back to a previous situation.

This is not absolute: in exceptional circumstances there is a way back, but this way back should never go that far that the minimum core obligations are affected. So there is a minimum level that all in all should be guaranteed. So that is very important as general obligations.

Question 13

What are the negative obligations for the economic, social and cultural rights

Answer 13

Main obligations: refrain from the arbitrary interference with economic, social and cultural rights. Of course they can interfere, but then again, and you can see that in article 4 of the covenant, then again limitations are subject to conditions that we know now, maybe the wording is a little bit different, but it is once again: interferences determined by law, interferences pursuing a legitimate aim, but here this would be course general welfare, protecting general welfare in a democratic society and the proportionality test that is rather framed in terms of the interferences that have to be compatible with the nature of the right.

Question 14

What are retrogressive measures?

Answer 14

The idea of of lowering the standard, and there are as I told you in se not prohibited, so there is no such a thing as an absolute standstill obligation, but of course what you can imagine: the threshold is high and so there has to be a very strong justification and you can find that in the committee asking a justification in terms of reference to the totality of the rights provided, the context of the regression and the maximum of the available resources, bearing that maximum of course in mind.

Art. 23 of our constitution: here is a standstill provision

Question 15

What are the positive obligations economic, social and cultural rights

Answer 15

Obligations to fulfill the rights: that is in light of course of that progressive realisation.

Dimension of facilitation: first place up to the legislation to take measures and to assist individuals in their enjoyment of the rights that we are talking about. So this is in the first place a duty on lawmakers, make a system, create those rights and insure that those rights are enforceable to all.

Also obligation to provide extra for vulnerable groups in society: maybe through specific committees, you assist them, you do something extra, that is providing.

Also promoting: people should know that they have those rights. Civil society is pseuo institutionalized: labor unions, mutualiteit –> most important part about their role: inform the members that they have rights. Raising awareness!

Obligations are determined by the idea of taking steps = progressive realisation, you cannot do this overnight. Committee gave some indications: reasonable time: not always easy to pinpoint but you do need to act within reasonable delay. So you act within a reasonable time, which means there is this obligation for the legislature to develop your legal framework, that you have your issues on judicibility, enforce maybe findings of their judges, offer remedies, develop so to say this social state.

Question 16

What is the limit wrt available resources?

Answer 16

We should not be blind to reality: there is a reality check: what one should strive for is the widest possible protection and maybe preferentially whenever choices need to be made, that you focus the most on those who need them the most, the most vulnerable ones, the most marginalized once, maybe with the assistance of an international community.

Question 17

Are there minimum obligations?

Answer 17

• There are minimum obligations that should be fulfilled, protected = minimum core that needs to be respected: whenever a state pretends that it tried to do everything but that it wasn’t possible to fulfill those minimum obligations because of lacking resources it has a high burden of proof. There is a margin of appreciation, that is I would say inevitable. There is a margin of appreciation, states should be left a considerable leeway to choose how they think can be complied best with their obligations under the international law on economic social and cultural rights.
• Huge variety of social security systems in Europe

Question 18

How do you monitor the system?

Answer 18

• Benchmarking is fundamental. You should not compare Norway to Congo.
• With civil and political rights, it is easy because of non-interference, here much more difficult.

Question 19

What is the obligation to protect?

Answer 19

• The obligation to protect individuals against the violation of their economic social and cultural rights by third parties. And of course that’s the whole issue of once again the business in human rights area is one thing, but of course that’s where we are completely within the traditional concept of labor law, where the protection of the vulnerable persons was the basic idea and where those rights were say violated, not by states of course in the first place but by private parties. So the very, I would say the very nature of labor law is that it is a protection of a horizontal kind against third parties.

Question 20

What about the principle of equality of non-discrimination?

Answer 20

Completely valid and applicable when it comes to economic, social and cultural rights, both the restrictions and the implementation.

Can be quite problematic with regard to vulnerable groups and cultural dimensions: eg. female reproduction rights: you have to take in the cultural sensibilities.

Example of Covid: who gets the vaccine first.

Question 21

What is the model for the general comments?

Answer 21

There are only 25 so that is not so much and they go in all sorts of directions: the right to education, the right to health, the right to social security, sexual and reproductive health rights that was 2016, business and human rights 2017 and now this year the benefits of scientific progress.

Model: drafted in a very similar way, recalling the normative content of rights when we are talking about especially about social rights, it is stressing very much this idea of making those rights available, accessible, stressing of course the quality of the services provided. No one wants to have a medical service that is not up to standard, stressing of course the importance of the non-discriminations issue.

Then usually the state obligations are pinpointed in general and you get examples of what could be violations, you could get illustrations of implementations in the national area and then you can even mention obligations for other parties.

Question 22

What is the case Grootboom?

Answer 22

Case in South Africa: victims of apartheid were forced to leave and they started to live on a plot of land but they were force evicted, then they asked the municipality to provide for temporary accommodation. They considered that the response they got was not sufficient and then in the end the case taken up by mister Grootboom ends before the High Court and then the High Court uses the right to housing and says well the competent authorities should provide, but then I thought it was only the children and parents, with shelter.

The authorities go to the constitutional court and said the constitutional court deals with it basically finds that the High Court went too far in ordering the public authorities to grant the shelter but nevertheless the constitutional court made a kind of declarative order in stating that the state is obliged to implement a housing program which must include relief for people in need and that is something why Grootboom is often referred to. Now the issue of this economic, social and cultural rights and this right to housing is of course very intriguing especially if you think back what we said in the beginning. 1993 the Vienna Summit: “all the Human rights are interrelated, they are one, they are apart”

Question 23

What was the case Ilias Papageorgiou v. Greece

Answer 23

Owners of a hotel considered it a violation of their rights to property: violation consisted in the fact that for more than a year or even longer refugees or immigrants had been living in their hotel and the authorities, although the owner then in the end wanted to take back control over his hotel.

And then the authorities did not react sufficiently swift and so basically if you go and read the facts you’ll see that the owner still had to pay bills for water and so on whereas he was not using it. And so the court found a violation.

Criticism on the Strasbourg court: public authorities cannot shift obligation of providing housing, shelter, taking care of people in need, they can’t just shift that to private parties”. So to that extent the case is completely understandable but of course the problem is and this is not addressed in the case that typically because it would be a completely different claim coming from completely different applicants before a court that would not be competent to deal with such matters, but the point is you now have a case that says well the public authorities should have been more quick.

Boils down to: what about the people in need of shelter: that is why Grootboom is important. But separation of power. But the authorities should be aware that they have obligations, even postivive obligations under the convention: non-discrimination provision with the approach of vulnerable groups? Not necessarily find a violation of an article but reminding the states of their obligations: Strasbourg did not do that.