Economic and social rights

Question 1

What does it mean that the role of the state is subsidiary when it comes to the right to an adequate standard of living?

Answer 1

The individuals are responsible for their own needs, and their childrens needs. Only when indiviudals fails to secure their own or their dependent’ standard of living, the state has an obligation to assist and ensure this right.

Question 2

What type of rights are economic and social rights? (ICESCR)

Answer 2

• ex. food, housing, social security, health, education, work
• they are progressive rights, meaning that the states are to ensure these rights over time (take steps) using the maximum available resources (cannot be regressive, exception to this is hard for the states to justify)
  
  • however, an obligation to provide a ‘minimum core’ of ESCR (GC. nr. 3) is immediately enforceable

Question 3

What is an ‘adequate standard of living’?

Answer 3

• more then just adequate food, housing and clothing
• how much cannot be said in general terms, but depends on the conditions in the society concerned
  
  • the essencial point is that everyone is to enjoy the same basic needs under conditions of dignity, no one should be living under conditions whereby the only way to satify their needs is by degrading or depriving themselves of their basic freedoms, such as begging, prostitution or bonded labor
• in economic terms: living above the poverty line in the society concerned

Question 4

What obligations does the state have to ensure the right to adequate standard of living?

Answer 4

• first and foremost to respect the individual’s freedom to find their own way of ensuring their standard of living, alone of in association with others
• to protect individuals’ freedom of choice and their creative use of resources to satisfy their basic need: ex. protection against fraud, unethical behaviour in trade and contractual relations, makreting dangerous products, and dumping of hazardous waste, protection from discrimination on access to housing and food or other related rights
• where necessary, to fulfil everyone’s right to an adequate standard of living: states have to facilitate (education, information, or other means, people’s access to public resources to ensure their livelyhood if they lack the opportunity to do so themselves) and provide the means for the satisfaction of basic needs in form of direct aid or social security, to supplement the efforts of the individuals themselves

Question 5

Economic, social and cultural rights are progressive rights, but are there any obligations that have immediate effect?

Answer 5

States have to guarantee the right is being exercised without discrimination of any kind and to take immediate and and progressive steps (deliberate, concrete, and targeted as clearly as possible towards meeting the obligations recognized in the ICESCR) towards full realization.

Question 6

What are some doctrinal tools to make the states’ obligations more concrete when it comes to economic, cultural and social rights?

Answer 6

• non-discrimination obligation: the state has to eliminate formal and substantive, direct and indirect discrimination
• begin to take steps: deliberate, concrete and targeted steps, even if inadequate resources states must ‘strive to ensure the widest possible enjoyment of the relevant rights’ (GC. nr. 3)
• obligation to provide the ‘minimum core’ of ESCR: minimum essential levels of each of the right (GC. nr. 3)
• budget analysis to identify ‘maximum available resources
• non-regression: flip-side of progressive realization, hard (but not impossible) for states to justify going backwards in terms of rights protection
• reasonable review: essentially the state needs to have a reasonable plan/program in place to achieve progressively the realization of ESR, the courts’ role is to review (a) whether there is a plan/program, and (b) whether the plan is reasonable
• AAAA/Q: available (the right needs to be available), accessible (right accessible to all, no discrimination), acceptable/quality (quality of the right, non-disriminatory), adaptable (the right evolves with changes in society and challenges inequalities)

Question 7

What is the right to adequate housing?

Answer 7

• more then just a roof over your head, you have the right to live in security, peace, and dignity
  
  • legal security of tenure, available services, materials, facilities, and infrastructure, affordability, habitability, accessibility, location (access to different social benefits), cultural adequacy (the way housing is constructed, the relevant policies must appropriately enable the expression of cultural identity and diversity of housing)

Question 8

How are states suppost to respect, protect and fulfil the right to housing?

Answer 8

• respect: by abstaining from forcible evictions and displacements
• protect: protect the tenure of existing housing against interference or unjustified evictions by third parties and adopt and enforce the nevessary regulations to ensure the necessary quality of housing
• fulfil: facilitate the opportunity for everyone to find affordable housing, aand in exceptional cases to provide necessary housing when the individuals cannot manage to do it themselves
• in essence, the state needs to demonstrate that they have done enough to realize the right in a shortest possible time, prioritizing for that purpose the use of available resources

Question 9

When can the right to housing for evicted persons be compatible with ICESCR?

Answer 9

• in exceptional cases
• applying principles of human dignity, reasonableness and proportionality
• provided by law, as a last resort
• people concerned have had access to an effective remedy, in order to ascertain that the measure is duly justified, ex. persistent non-payment or damage of property
• cannot be any other alternative meanso r measures available
• evictions should not render people homeless, the state must take measures to privde alternative housing for people that are left homeless as a result of eviction, regardless of it being initiated by the authorities or by an individual
• the state must take all necessary steps, to the maximum available resources, to uphold the right to housing
• if the state has not found any alternative accommodation (fulfil, provide), it has to show that despite having taken all reasonable measures, to the maximum of its available resources, it still has been unable to uphold the right to housing

Question 10

What are som concerns when it comes to justificability of ESCR?

Answer 10

• legitimacy concerns: democratic legitimacy, separation of power
• insititutional capacity concerns: courts lack information required to deal with social and economic rights, the judiciary lacks expertise, courts incapable of successfully with ‘polycentic’ (one part of the state budget will affect another right) tasks, courts lack the necessary tools and remedies to deal effectively with social and economic rights

Question 11

What is Neier’s critique of these rights (ESCR)?

Answer 11

• the bread and butter of politics, not something a court should deal with, in a territory where the democratic process should prevail
• if we recognise these as rights and implement them differently around the world, they start to taint ‘real’ human rights, to undermine them because they are clearly enforceable