3.9 NHRIs and the Justiciability of ESC Rights25
In many jurisdictions, the introduction of legal remedies in cases of violation of economic, social and cultural rights has played an important role in the benefit of right-holders, and brought clarity regarding the content of such rights.
The Committee on Economic, Social and Cultural Rights has issued General Comment No. 9, in reference to the domestic application of the ICESCR, which states that “legally binding international human rights standards should operate directly and immediately within the domestic legal system of each State party.”26 However, the Committee is not concerned as to how this is done, but the means used must be appropriate in the sense that the results are consistent with the full discharge of its obligations.27
It must be remembered that international development agencies have been producing research on social and economic conditions and human well-being for decades. These indicators and benchmarks have generated far more periodically produced quantitative data than other areas of human rights. From UNDP’s Human Development Index, to gender-related indices, to UNICEF’s rate of progress measurements, and the World Bank’s World Development Reports, the problem is certainly not insufficient or vague data, but rather how to use the data in the human rights context.28
As the Centre for Economic, Social and Cultural Rights – an international human rights network has pointed out, “[h]istorical neglect of ESC [rights] is not a methodological obstacle. While there is always a need for additional indicators to measure compliance in specific rights, it must be emphasized that the definition of all rights changes and expands over time through concrete practice. The main obstacle to realizing ESC rights remains a lack of political will and commitment.”29
Countries may argue that ESC rights are not judicially enforceable, that they are too vague to be monitored effectively, or that the basic obligations that are linked to ESC rights are matters for the legislatures, not courts or tribunals. However, many have explicitly accepted international treaty obligations in relation to ESCR.
There are numerous examples of courts applying domestic and international law to protect such rights. The Centre provides examples of ESC rights violations that have been or are already being tried in courts around the world:
- Forcible evictions;
- Terminating an employee without cause;
- Discrimination in access to medical care, work, housing, education, etc.
- Depriving children of adequate food and water;
- Failing to provide any primary level education;
- Failing to provide basic health care facilities; and
- Housing in such poor condition that it is a risk to safety.30
A well-known and internationally significant case showing the justiciability of ESC rights is the Grootboom Case, a South African case involving housing rights. The following summary is drawn from AWID’s publication, Strategies and Lessons from Experience: Respecting and Protecting the Right to Housing: the South African Experience:31
Grootboom was a landmark decision: it recognised, first, that ESC rights enshrined in a Constitution were justiciable – i.e. that they could be adjudicated in a court of law, and that remedies could be found to compensate victims. Secondly, the decision also recognised the obligation of the state to ensure access to these rights, despite budgetary or other constraints.
CASE STUDY: THE GROOTBOOM DECISION
The Grootboom decision of the South African Constitutional Court involved about 900 people living in inadequate housing in Oostenberg in South Africa. Most had applied for low-cost housing, but were becoming increasingly frustrated after many years of waiting with no response from authorities. Desperate, they decided to occupy a vacant piece of private property across the road from the site that had been earmarked for low-cost housing. The owner of the property applied for and received a court magistrate’s order to evict the squatters and their homes were destroyed. Now homeless, the community petitioned the High Court for an order for temporary shelter until they could be permanently accommodated under a provincial housing plan. The government o!ered access to a piece of land and some building materials, as well as access to basic services while they waited for housing to become available. Subsequently, however, the government failed to honour its promise. The community then took their case to the High Court, basing their arguments on Section 26 of the South African Constitution, which states that: Everyone has the right to have access to adequate housing; and the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right. The court ruled [...] “that the community’s right to have access to adequate housing had indeed been violated... [and] that a legislative or policy framework aimed at the progressive realization of social rights...and that it must be comprehensive, coherent, balanced and %exible...Section 26 imposed a negative duty on states not to prevent or impair the access to housing, as well as a positive obligation to create an enabling environment for the ful"lment of this right. The state’s housing plan must respond to the needs of crisis situations, and may not exclude any signi"cant sector of society, especially vulnerable populations. The housing plan in this case did not meet these standards, and therefore the government had a duty to rectify the situation.”
The implications for NHRIs are clear: addressing human development from a rights-based perspective is not only a matter of meeting development goals, or supporting more equitable public sector budgeting: it is also about enforceable rights that may be the subject of public inquiries or of claims before the judiciary or other decision-makers, depending on the jurisdiction and powers of the NHRIs in a given country. At a minimum, NHRIs with these powers should be accepting complaints and should have, or should be developing, the capacity to deal with them.
25 This section draws in part on Women’s Equality Rights: Women’s Equality Rights: A Handbook for National Institutions (Equitas; Montreal, 2008) www.equitas.org.
27 Ibid. at para. 6.
28 The balance of the section is drawn and adapted from: “Justiciability of Economic, Social and Cultural Rights” in CESR’s Basic Primer on ESC rights (Centre for Economic, Social and Cultural Rights).
29 Ibid.
30 Ibid.
31 Association for Women’s Rights in Development (AWID), “Strategies and Lessons from Experience: Respecting and Protecting the Right to Housing: The South African Experience” in Achieving Women’s Economic & Social Rights.