A fundamental feature of democratic Constitutions is the protection of human rights through constitutional guarantees.
The establishment of the United Nations in 1945 revolutionalised human rights protection.
From a subject that was treated under classical international law as being an exclusively domestic matter, human rights protection became a subject that came within the purview of the international community.
Sri Lanka is a signatory to the so- called International Bill of Rights which consists of Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR), all adopted by the United Nations.
Content of ICESCR
The Covenant consists of a preamble and 31 articles which are divided into five parts. Part 1 deals with the right of self – determination. Part II defines a State party’s obligations such as non-discrimination and equal rights for men and women.
Part III enumerates specific substantive rights in relation to: work (Article 6); just and favourable conditions of work (Article 7); trade unions, membership of such unions and recourse to strike action (Article 8); social security (Article 9); protection of the family (Article 10); an adequate standard of living, including food and shelter (Article II); physical and mental health (Article 12); education (Articles 13 and 14) and scientific and cultural life (Article 15).
The social rights specified in Articles 11-14 are the only treaty provisions of universal application that enshrine the general rights to food, clothing, housing, health and education.
Party IV outlines a system that seeks to ensure implementation through the submission of periodic country reports by State parties to the UN system.
Part V contains provisions relating to the Covenant’s ratification / accession and entry into force.
International obligations
The textual source of the obligation is Art. 2 (1), which requires State to take steps, individually and through international cooperation, to realise the rights. The Committee on Economic, social and Cultural Rights, (ESC) which consists of independent experts, monitors the implementation of the Covenant.
State Parties to the Covenant are obliged to submit regular reports to the Committee on ESC rights in order to show the measures implemented to ensure the rights in the Covenant and the extent of progress achieved in ensuring the rights.
The initial report of the state must be submitted two years after entry into force of the Covenant and thereafter every five years.
In this regard, the Committee has adopted guidelines with regard to the form and content of reports, which are intended to facilitate the preparation of reports.
Obligations of State Party under ICESCR
Article 2 (1) is the key to the ICESCR. It sets forth the kinds of obligations, States parties undertake when they ratify the Covenant.
It identifies the steps the government must take in order to realise each substantive right. Social rights are perhaps seen as different from civil and political rights in that they are supposed to be implemented progressively, or over time, rather than immediately.
Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR) requires States parties to ‘respect and ensure’ the rights set forth in that Covenant.
The ICESCR, by contrast, requires States Parties to ‘take steps …. to the maximum of available resources’ to realise its rights.
Obligations to respect, protect and fulfil
A better way to conceive of the obligations under the Covenant on ESC Rights and human rights obligations in general, is that they include three types of obligations.
The obligation to respect requires the State not to do anything that would actively interfere with the realisation of a right (e.g. banning unions, forced evictions).
The obligation to protect requires the State to ensure that individual’s rights are not violated by private non- state actors, such as corporations, landlords or paramilitaries (e.g. refusing to enforce labour laws, allowing discriminatory hiring practices, illegal expropriations of land).
The obligations to fulfil requires the State to take positive steps to ensure the realisation of the right in question, which may include …..’legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights’.
In the later general comments issued by the Committee on ESC rights, the obligation to fulfil is defined further as including an obligation to facilitate, to provide and the promote.
Progressive obligation under the Covenant is an obligation to implement the right over time, the maximum of available resources. The Committee on the ESC rights addresses this matter in General Commit No. 3.
‘Violations’ of ESC Rights
The word ‘violation’ is a common expression used in human rights discourse.
It has at least two different connotations. One is that a violation is an interference with a liberty of some sort.
Under public international law, for example, one State violates another State’s borders when it crosses them without permission.
The State violates an individual’s liberty when it arrests him without cause. Another connotation is that a violation is a breach of a rule. One may violate a law or an oath by not obeying it.
There are three distinct ways in which we speak of violations of rights under the Covenant.
The first use of ‘violation’ under the Covenant is non- compliance with the rules. In the Limburg Principles, a group of academic experts declared that ‘[a] failure by a State Party to comply with an obligation contained in the Covenant is, under international law, a violations of the Covenant’.
This concept refers to the second of the connotations explored above. This kind of violation can happen through acts of commission (i.e. active interferences with rights) an act of omission (i.e. neglecting to do what it ought to do).
This notion is expansive and encompasses the next two meanings.
A second way that the word ‘violation’ can be used is when there is an active State interference with a right protection by the Covenant.
Examples would include an act to Prevent Unionisation, forced evictions, genital ‘mutilation’, corrupt mismanagement of social funds, etc.
The third way of speaking of violations under the Covenant was that a violation occurs when a State fails to fulfil the minimum core obligation of any given right.
In General Comment No.12 on the right to food, the Committee adopted this wording. It states that ‘violations of the Covenant occur when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be freed hunger’ (Para 17).
However, General Comments No.13 and 14, the Committee returns to the original sense of violations being any form of non- compliance with obligations under the Covenant, and confirms that this kind of ‘violation ‘ is merely a species of the first.
Limburg Principles and Massatricht guidelines.
According to the Limburg Principles on the Implementation of Economic, Social and Cultural Rights (1986), laws imposing limitations on the exercise of economic, social and cultural rights should not be arbitrary or discriminatory.
National security should not be used as a pretext for imposing arbitrary limitations and it should be invoked only when adequate safeguards and effective remedies are available against abuse.
An elaboration of the Limburg principles is provided by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997).
The Maastricht Guidelines elaborate on the Limburg principles with respect to, inter alia, the nature and scope of violations of economic, social and cultural rights.
Accordingly, economic, social and cultural rights impose three different types of obligations on the State: the obligations to respect protect and fulfil rights.
Failure to perform any one of these three obligations constitutes a violation of such rights.
The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights.
For instance, if a State engages in arbitrary forced evictions, the right to housing is violated. The obligation to protect requires States to prevent violations of such rights by third parties.
The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights.
It is clear that states have a duty to achieve the ‘ends’ of respecting, protecting and fulfilling ESC rights with a specific focus on minimum core obligations.
Yet there is a residual debate on the ‘means’ through which such a duty may be discharged. Hence the question remains as to whether measures adopted in this regard should include judicial remedies for the enforcement of ESC rights. The idea of justiciability arises in this specific context.
Justiciability
‘Justiciability’ is distinguishable from ‘enforceability’. It is usually defined as involving a ‘real controversy’ that is ‘appropriate for judicial determination.
Hence the State’s obligation to enforce ESC rights must be distinguished from the debate on the appropriateness of judicial intervention in the course of such enforcement. International instruments appear to leave the matter open.
Article 8 of the Universal Declaration of Human Rights (UDHR) states; ‘Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted to him by the constitution or by the law.
Hence the UDHR does not draw a distinction between civil and political rights and ESC rights, provided such rights are recognised by law.
Article 2(3)(b) of the International Covenant on Civil and Political Rights (ICCPR) specifically requires states to develop the possibilities of judicial remedies, whereas such a provision is not found in the ICESCR.
Thus justiciability of ESC rights remains a subject of debate among scholars and policymakers.
In a series of cases that have become milestones in the global debate over socio- economic rights, the Constitutional Court of South Africa has declared that such rights, as they are enshrined in the South African Constitution, are fully justiciable, and in fact that South African courts are obliged to test the constitutional adequacy of the government’s programs against these guarantees and to provide adequate remedies for all constitutional violations.
Moreover, in the Olga Tellis v Bombay Municipal Corporation, the Supreme Court of India analysed the issue of enforcing ESC rights under the Indian Constitution.
The Court offered an expansive interpretation of the right to life in order to implicitly read in ESC rights such as the right to a livelihood.
For Sri Lanka too Eppawala Judgment is among several others where the Supreme Court by judicial activism, through equality provisions of the 1978 Constitution gave effect to the right to livelihood and environmental right despite unenforceable ESC rights found in Directive Principles of State Policy (Chapter VI) of our Constitution.
Meanwhile, the Committee on ESC Rights reinforces the need for making judicial remedies available, though not always as the first resort.
Role of courts
The foregoing analysis suggest that the idea of justiciability of ESC rights requires further deconstruction. Judges simply cannot adopt the same approach to deal with all ESC right cases.
The appropriateness of the approach is entirely contingent on the nature of state’s obligations and policies at stake.
Second, courts must be vigilant when the policy choices under scrutiny involve a state’s minimum core obligations.
For instance, when basic health, primary education and basic shelter are at stake, courts ought to inquire into the reasonableness of the state’s policies in terms of resource allocation.
Finally, when a State policy or practice is ex facie discriminatory, courts have a duty to adopt a more proactive role. They must be willing to strike down a policy and uphold the rights to equality and non- discrimination, both of which cut across the gamut of civil and political rights and ESC rights.
Moreover, it is through jurisprudence that recognises and advances the interdependence of all rights that a holistic vision of human rights may be realise.
It is hence strongly recommended that the constitutional text differentiate between a State’s minimum core obligations, which are not contingent on the availability of resources and its general obligations to progressively realize ESC rights.
This careful demarcation will assist courts in developing jurisprudence on ESC rights that is appropriately deferential, vigilant and activist.
It is through this important interface between the political process and the judiciary that the fulfillment of ESC rights is best served.
(The writer is a retired Professor in Law in the University of Sri Jayewardenepura. He is an Attorney- at – Law, practicsed in courts and holds a Ph.D. in Law with four other University Post Degrees)