Introduction
Human rights values have an ever-growing impact on contemporary societies
However, socio-economic rights remain the poor cousins of their civil and political counterparts.1 Recent “revitalization” of the key international socio-economic rights instruments, along with the emergence of new models of constitutional protection of these rights in Latin America, India and South Africa, has generated considerable interest. However, socio-economic rights remain by and large marginal, because of often outdated philosophical assumptions as to their lack of substantive content. This often means that our sophisticated vocabulary of rights is of little use to the homeless or the destitute or other disadvantaged groups.
As a first step to combating the marginalisation of socio-economic rights, it is necessary that bodies charged with interpreting and applying socio-economic rights develop a rigorous, rational and coherent jurisprudence, to show that socio-economic rights can be given a substantive and meaningful content. The highly developed case-law of the European Committee of Social Rights can be seen as a model of how such a socio-economic rights jurisprudence may develop.
The Triumph of Human Rights
Since 1945, the language of human rights as set out in the Universal Declaration of Human Rights and other international and European instruments has exerted an ever-growing influence. It has become a modern political and legal lingua franca, used by individuals and groups across the world to press for change and to resist erosion of their basic entitlements. Campaigners make more and more use of “rights talk” to articulate their demands for reform. Human rights are also been embedded into political and legal governmental frameworks. International organizations increasingly attempt to build in a human rights dimension to their work, while national and transnational legal systems have also attempted to come to grips with the “rights revolution”, by creating various types of legal remedies for violations of fundamental rights.2
This ever-increasing use of the language of human rights is matched by a deepening and expansion of its vocabulary. Human rights standards are not stagnant: year by year, new treaties, conventions and “soft law” instruments addressing human rights issues emerge, and the case-law of bodies such as the European Court of Human Rights (ECrtHR) and the UN Human Rights Committee continues to evolve and develop. In this way, existing human rights standards are fleshed out and applied to new factual and legal contexts, which incrementally extends the protection they offer to marginalised and vulnerable groups.
The Marginalisation of Socio-economic Rights
Therefore, human rights values have an ever-growing impact on contemporary societies. However, this impact has often taken a lop-sided shape: certain parts of the language of human rights have received a warmer welcome in contemporary law and politics than others. In particular, those rights that tend to be classified as “civil and political” have become deeply embedded in political discourse and legal systems. Freedom of expression, freedom of religion, the right to fair trial and the other “core” civil and political rights are treated as constituting the mainstream of human rights. Virtually all the constitutions of democratic states recognize these rights as having a special status, and make provision for courts to strike down decisions of the executive and legislative branches of government that violate these rights. The UN and European treaty instruments such as the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR) that protect these rights have become the pre-eminent international human rights instruments. In contrast, socio-economic rights remain the poor cousins of their civil and political counterparts.
Of course, there are many international declarations that insist upon the equal importance of civil and political and socio-economic rights. For example, paragraph 5 of the Vienna Declaration and Programme of Action of 1993, endorsed by the UN General Assembly, states that all forms of rights, including socio-economic rights, are “universal, indivisible and interdependent and interrelated…[t]e international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”.3 In addition, international human rights bodies such as the UN Committee on Economic, Social and Cultural Rights (CESCR), as well as leading human rights NGOs such as Amnesty International and the International Commission of Jurists, constantly emphasise that socio-economic rights are not secondary or supplemental, but rather are equal in status to civil and political rights. However, this rhetoric serves to camouflage the true status of socio-economic rights, which by and large remain in a de facto sense outside of the human rights mainstream.
The Limited Impact of International Socio-economic Rights Instruments
This marginalisation of socio-economic rights can be seen in how international human rights instruments limit state obligations to respect, protect and fulfil socio-economic rights. For example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) emerged in tandem with the ICCPR in the mid 1960s out of the UN human rights treaty-making process. However, as is well known, Cold War politics, and in particular the desire of Western states to emphasise the “immediately realisable” nature of many civil and political rights and thereby to combat attempts by the Eastern bloc to dilute the emerging system of human rights norms, resulted in significant differences in how the two UN Covenants were phrased and worded. In particular, Article 2(1) of the ICESCR requires states to take steps to “progressively” realise the rights subsequently set out in the text of the Covenant: this vague phraseology has been interpreted by the CESCR in its famous General Comment No. 3 in a manner that gives it some shape and definition, but it remains notably less demanding than the obligations in respect of civil and political rights imposed under the ICCPR.4
The text of the ICESCR also defines the rights it guarantees in broad and general terms, which taken together with the diluted “progressive realisation” requirement means that the Covenant can be interpreted as imposing uncertain and ambiguous obligations upon states.5 This is reflected in the comments of the CESCR upon national reports submitted under the Covenant: the Committee repeatedly expresses concern about the actions of state parties, and occasionally recommends that states adopt specific measures, but in general the Committee is cautious in defining the exact nature of the obligations imposed by the Covenant. For example, it rarely explicitly describes state action or state inaction as not being in conformity with the Covenant, reflecting the uncertain scope of the ICESCR itself and the nature of the obligations it imposes upon state parties.6
In addition, until recently, the ICESCR contained no Optional Protocol making it possible for individuals to challenge alleged violations of their socio-economic rights by states before the Committee. This has made it difficult for the CESCR to develop a substantive and detailed case-law. This defect will be remedied by the provisions of the new Optional Protocol to the ICESCR which has been approved by the UN General Assembly in 2008. However, many states, and in particular many of the European and North American states who consider themselves to be at the forefront of human rights protection, adopted a cautious stance during the negotiations leading up to the final agreement on the ICESCR. Given this, it remains to be seen how many states will ratify the Protocol after it is opened for signature and ratification in September 2009.7 It also remains to be seen how the CESCR will interpret the ICESCR when adjudicating on the individual complaints will eventually that reach the Committee under this new Optional Protocol mechanism.
The hierarchy between civil-political and social rights is also reflected in the Council of Europe system for protecting rights. The triumphal progress of human rights values in Europe since 1945 and the manner in which these values have become internalised in the European mindset has been remarkable. In addition, the European states have committed themselves to giving effect to what T.H. Marshall described as “social citizenship”, by ensuring that all their citizens enjoy a certain minimum level of social protection.8 However, despite this post-1945 heritage, civil and political rights have a status and profile that tends to obscure their socio-economic equivalents.9 When it was adopted in 1961,10 the European Social Charter (ESC) was intended to complement and parallel the protection for basic human rights offered by the European Convention on Human Rights (ECHR). Just as the ECHR was designed to ensure respect for fundamental civil and political rights, the Charter was intended to ensure that the member states of Europe also respected basic economic and social rights. However, the Social Charter has been overshadowed by the Convention, and once again this has been partially due to limitations built into its text.
The provisions of both the original Social Charter and the subsequently revised Social Charter, which was agreed in 1996 and now has been ratified by the majority of European states, define the scope and content of the rights they protect in comparatively more concrete terms than does the ICESCR.11 This in turn has enabled the European Committee of Social Rights (ECSR) to define state obligations under the Charter with more precision and focus than the CESCR has been able to do. However, state parties to both the original and the revised Social Charters can to some extent choose what obligations they incur: they are able to ratify the Charter while only agreeing to be bound by a fixed minimum number of the specific rights provisions set out in the binding Part II of the Charter.12 This has been referred to as the “a la carte” approach – only Portugal to date has agreed to be bound by the Charter in its entirety. This allows state parties to pick and choose to some extent what rights they agree to respect under the Charter.13
In addition, the original ESC is in many ways a limited socio-economic rights instrument: its text was agreed in 1960 and reflects the social concerns of the emerging Western European welfare states of that time, but predates the emphasis on feminism, disability rights, racial equality and migrant rights that emerged in the 1960s. This meant that the original Charter contained relatively well-developed provisions on employment rights, which were subsequently given a rigorous interpretation by the ESCR. However, the Charter lacked explicit provisions covering essential socio-economic rights such as the right to housing, while its provisions in respect of women, children and disabled persons focused more on ensuring social protection for these groups than on securing genuine equality or affirming their fundamental dignity.14 The ESCR was able to overcome these limitations to some extent by the purposive interpretation it gave to the text of the Charter, but these textual restrictions have served to limit the impact and profile of the Charter over the five decades it has been in existence.
The revised Social Charter is largely free of these faults, as it includes new provisions on the right to housing and freedom from poverty and extending the rights of persons with disabilities, women and other disadvantaged groups.15 However, the Appendix to the revised Charter restates a similar provision in the Appendix of the original Charter which provides that only those lawfully present in the territory of state parties can come within its scope.16 Even though the ECSR has extended some of the Charter rights so as to provide a minimal level of protection to those illegally present on the territory of state parties,17 this textual provision inevitably limits the scope and reach of the Charter and its ability to protect the socio-economic rights of some of the most disadvantaged groups in contemporary European societies. Many European states are also reluctant to ratify the 1995 Additional Protocol to the ESC, which permits “collective complaints” alleging a systemic (i.e. non-individual) breach of the Charter to be brought by representative national employer or employee organisations or transnational NGOs recognised by the Council of Europe (or by national NGOs, if a country accepts this possibility – only Finland has done so).18
More troubling, perhaps, is that while European states effectively “police” each other’s compliance with judgments of the European Court of Human Rights through the relevant Council of Europe supervisory mechanisms, a similar degree of mutual commitment to ensuring compliance with the ESC is lacking. Within the Council of Europe framework, two bodies composed of state representatives examine and comment on the findings of the ECSR. The Governmental Committee reviews the ECSR’s conclusions on whether states are acting in conformity with their obligations under the Charter and prepares the response of the Committee of Ministers to these conclusions, with the Committee serving as the ultimate supervisory authority. However, it is not the usual practice of either the Governmental Committee or the Council of Ministers to make specific and focused recommendations to states found by the ECSR to be not in conformity with the Charter. Instead, the Committee by and large simply recommends that state parties “take account, in an appropriate manner, of all the various observations” made by the ECSR and the Governmental Committee,19 or “notes” the conclusions of the ECSR. This procedure is much less demanding than the detailed assessment of state compliance which the Committee of Ministers conducts following findings by the European Court of Human Rights that a state party has violated the ECHR. In addition, representatives of some states parties sitting in the Governmental Committee of the ESC have periodically criticised the jurisprudence of the ECSR and stated that only state parties have the final authority to determine the meaning of the Charter’s provisions.20
Therefore, no matter how often international declarations are made reiterating the equal status of socio-economic and civil and political rights, the reality is that socio-economic rights instruments and their enforcement mechanisms remain largely outside the mainstream of international and European human rights law. Nominally important, the ICESCR and the ESC are frequently marginalised in reality. The same is true for the provisions of other international human rights instruments that protect socio-economic rights.21 However, these limitations are a symptom rather than the cause of the marginalisation of socio-economic rights within the human rights mainstream. They are the result of a general unwillingness of states to treat socio-economic rights as having the same status as civil and political rights. In the abstract, states are willing to acknowledge the equal status of both sets of rights: in practice, this rhetoric does not match the reality of state practice.
The Marginalisation of Socio-economic Rights within Domestic Law and Politics
This marginalisation is also reflected in national legal and political approaches to human rights at the domestic level. In national legal systems where international human rights treaties have to be incorporated into domestic law before they can have effect, it is rare for socio-economic rights instruments to be so incorporated. For example, in Europe, “dualist” jurisdictions such as Ireland and the UK have only incorporated the ECHR and not the ESC into national law. In “monist” systems where international human rights treaties once ratified automatically become part of national law, instruments such as the ESC and the ICESCR lack the profile or status of the ECHR and the other key civil and political rights instruments, with the result that lawyers and judges are often slow to refer to the socio-economic rights instruments in legal argument.22
In addition, it is not common for socio-economic rights to be treated as legally enforceable constitutional rights within national law. Many states do not mention the existence of socio-economic rights in their constitutional texts: as a result, the national courts of such states are reluctant to recognise or infer the existence of these rights. For example, the US Bill of Rights or the Canadian Charter of Rights and Freedoms do not contain express guarantees of socio-economic rights, and as a result the Supreme Courts of each country have not directly extended constitutional protection to socio-economic rights.23 In such countries, protection for such rights may be indirectly derived from the protection given to civil and political rights such as the right to life or the right to equal protection of the law, but is not directly provided by national constitutional law.24
Some other national constitutions contain rhetorical provisions that refer to socio-economic rights, or commit a state to working towards the establishment of a society where all citizens of that state will enjoy a certain basic level of socio-economic rights protection. Such references are usually included in constitutional preambles or in other parts of their constitutional texts that have little or no substantive legal effect. For example, both the Irish and Indian Constitutions contain “Directive Principles”, which are statements of national aspirations that are intended to steer and direct how the state exercises its powers and functions.25 In both countries, these Directive Principles require the state to work towards securing the right of all citizens to enjoy core socio-economic entitlements.26 These Directive Principles are eloquent and dramatic statements of constitutional goals: however, in both cases, the constitutional text makes it clear that they are not to be treated as legally applicable norms.27
However, despite the non-binding nature of such constitutional rhetoric, national courts may be able to use Directive Principles or similar constitutional provisions to interpret civil and political rights in a manner that extends some protection to socio-economic rights. In the famous case of Olga Tellis, the Indian Supreme Court made reference to the Directive Principles set out in the Indian Constitution in interpreting the constitutionally recognised right to life as protecting not just a person’s life but also the essential ingredients necessary to live a dignified life: this allowed the Court to prevent slum dwellers against eviction.28 However, once again, this form of socio-economic rights protection can only be indirectly derived from the much stronger forms of protection offered to civil and political rights.
In addition, the use by courts of Directive Principles and other forms of open-ended constitutional rhetoric in this manner is often only possible in societies where there is general acceptance of the legitimacy of judicial activism. It is significant that the Irish courts have not followed the approach of the Indian courts in relation to the very similar set of Directive Principles shared by both the Irish and Indian Constitutions: the Irish Supreme Court has taken the view that the limited role of the courts in a system based upon a firm concept of the separation of powers prevents them making use of the non-legally binding Principles.29 This emphasis on separation of powers has also deterred the Irish courts from stretching the basic civil and political rights recognised in the Irish Constitution to protect socio-economic entitlements.30
Similar concerns about separation of powers often arise even in those European states whose written constitutions expressly recognise socio-economic rights as fundamental entitlements which are capable of having some degree of legally binding force. Many such constitutions list socio-economic rights as core constitutional rights, but then either explicitly provide or are interpreted as establishing that it is the task of the legislative branch of the government to make provision for the enjoyment of these rights. This greatly limits the extent to which any form of judicial control can be exercised over how the legislative branch chooses to exercise its functions. As a result, in countries such as Italy and France, the protection given to socio-economic rights in practice within national legal systems is indirect and limited, in contrast to the ever-increasing judicial protection given to civil and political rights in these systems.31
Therefore, at both the international and national levels, we see a gap between the rhetoric of the “indivisibility” of rights and the situation in practice at the legal level. Perhaps more seriously, this gap also exists in the spheres of politics, policy and governance. Lawyers tend to focus too much on the status of human rights within international and national legal systems. The language of human rights often has its greatest impact away from the narrow arena of courts and tribunals. If socio-economic rights were unenforceable in any legal system but nevertheless had considerable impact in shaping political, economic and social debate, then that might be a fair price worth playing.32 But here again, socio-economic rights lag behind their civil and political counterparts. They are often paid lip-service by politicians, and invoked by trade unions, NGOs, social movements and other activist groups. However, in general, they have not been internalised within public consciousness to the same degree as have free speech, right to life and other emblematic civil and political rights. Public administration has also often been slow to take socio-economic rights seriously: priorities and strategies adopted by central and local governments often fail to focus on socio-economic rights, especially those of the most disadvantaged groups who struggle to influence the political process.33
This is not to say that many societies do not place great value on the importance of individual and group entitlements to food, education, housing and other basic requirements necessary live a dignified life. These entitlements are regarded as fundamental throughout the world, and often are the subject of intensely fought political campaigns and sustained administrative initiatives. However, the debates that surround access to these entitlements are often characterised by an absence of an emphasis upon the language of human rights. Instead, narratives of social justice, redistribution, economic efficiency, development and growth, laissez-faire economic libertarianism and individual self-realisation compete, clash and combine. Socio-economic rights remain largely on the sidelines of these political, social and economic debates, despite the best efforts of many social movements and activist groups. As Alicia Yamin has commented, “perhaps the greatest obstacle to advancing ESC rights—on both the external and internal level—is that there is a lack of consciousness about ESC rights as rights, and a concomitant lack of indignation at their systematic violation.”34
The New Focus on Socio-economic Rights: Pushing Back Towards the Centre

The picture that has been presented so far of the marginalisation of socio-economic rights does not of course represent the full story. International socio-economic rights instruments can at times have considerable influence. The ICESCR and in particular the interpretative approach adopted by the CESCR in its General Comments have generated a new global focus on socio-economic rights. The labour rights set out in the European Social Charter are regularly referred to within Europe by national courts, labour organisations and international organisations: the case-law of the ECSR on other social rights such as the right to housing is acquiring ever-greater influence.35 The International Labour Organisation (ILO) has exercised a major influence on labour law and employment standards since its foundation in 1919: the tripartite structure and consensual approach adopted by the ILO norm-setting and supervision mechanisms help to ensure that ILO labour standards are widely accepted as binding norms.
States may often just pay lip service to the idea of the interconnectedness of all human rights, especially where socio-economic rights are concerned, but this idea has nevertheless begun to filter into the new and emerging human rights standards at both international and national levels. In addition, a growing awareness of the negative aspects of the ongoing process of globalisation and the need to reinforce social protection in free market capitalist economies have given fresh energy to socio-economic rights discourse. NGOs are increasingly attempting to put socio-economic rights on the national and international rights agenda. For example, following the Dakar conference of its International Council in 2001, Amnesty International have adopted a new focus on socio-economic rights in its global work, acknowledging that such rights have suffered “relative neglect” over previous decades.36 A coalition of national and international NGOs has been formed to campaign for state ratification of the new Optional Protocol to the ICESCR.37 NGOs specialising in socio-economic rights have emerged in many countries, in particular in Africa, and a Global Network for ESC Rights has been established.38
A similar emphasis on the interconnectedness of rights and the need for the state to make positive provision for disadvantaged groups can be found in recent declarations and statements of principles prepared by groups of international human rights experts, such as the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity and the Declaration of Principles on Equality.39 Similarly, the United Nations, the Council of Europe, the International Commission of Jurists and other transnational bodies have begun to place greater emphasis on socio-economic rights. Thomas Hammarberg, the current Council of Europe Commissioner for Human Rights, and Jean-Paul Costa, the President of the European Court of Human Rights, have been particularly prominent in calling for a greater focus on social rights within the overall discourse of human rights.40
The fresh emphasis on socio-economic rights that has emerged in recent years is also reflected by the agreement that was reached between states parties on the introduction of the Optional Protocol to the ICESCR in 2008, already discussed above. It also is mirrored in the addition of the “Protocol of San Salvador” to the American Convention on Human Rights (AMHR), which makes provision for core socio-economic rights to be protected by the Inter-American human rights institutions.41 It also is manifested by the process of “revitalization” of the European Social Charter, which was launched by the Council of Europe Ministerial Conference on Human Rights held in Rome in November 1990.42 The objective of this process was to breathe new life into the European Social Charter and into the social rights agenda in general across Europe, and it has yielded substantial results. The Turin Protocol in 1991 clarified and strengthened the role of the ECSR, while in 1995 the Additional Protocol making provision for the collective complaint mechanism discussed above was established.43 In 1996, agreement was also reached the Revised European Social Charter.44
Similar positive signs of new energy in the field of socio-economic rights can be detected at national level. In some parts of the world, and in particular in continental Europe and Latin America, the language of social rights has become prominent in popular discourse and political debate. Socio-economic rights are increasingly being given legal protection in some form or another, often out of a desire to minimise their marginalisation. The post-dictatorship constitutions of many Latin American states often include socio-economic rights guarantees, with the extensive list of such rights set out in the Brazilian Constitution of 1988 being particularly notable.45 The post-apartheid “transformative” constitution of South Africa similarly makes certain core socio-economic rights justiciable, albeit in a different manner than civil and political rights.46
As a result, constitutional and supreme courts in Columbia, Costa Rica, Argentina, Brazil, India, South Africa and elsewhere are giving effect to constitutional socio-economic rights in new, exciting and ground-breaking ways.47 Similar developments are beginning to take place at the level of the work of ombudsmen in Peru and elsewhere.48 There also has been an explosion of academic interest in socio-economic rights, with multiple publications appeared in recent years on this previously neglected and relatively obscure topic.49 On a general overview of this literature, it is striking that many academic authors now express qualified or even strong support for a greater focus on socio-economic rights, and for making socio-economic rights at least partially justiciable.
However, this jurisprudence, while highly significant and influential, remains a work in progress. This new emphasis on socio-economic rights is also most developed in countries within the global south: political and judicial thought in Europe and North America by and large remains sceptical. The revitalisation of the ESC and the ICCPR, along with the ratification of the San Salvador Protocol to the ACHR, are important steps, but have so far not yet eroded the full extent of the gap in treatment and status between socio-economic and civil and political rights. Socio-economic rights remain at the margins of human rights law and policy, even if new energy is being spent by NGOs, civil society, legislators and others in trying to bring these rights closer to the mainstream.
The Consequences of Marginalisation of Socio-economic Rights
The marginalisation of socio-economic rights has serious consequences. As with all forms of human rights, socio-economic rights offer a framework for determining what states owe individuals and groups as a matter of right, rather than as a matter of economic efficiency, charitable support or any other form of utilitarian or welfare-based policy.50 In addition, socio-economic rights analysis offers a positive vision of social justice, which is more robust, precise and developed than many of the uncertain, vague and indeterminate accounts of social justice that are currently put forward to counteract the current strength of neo-liberal and market-dominated approaches.51 However, the marginalisation of these rights within political and legal discourse obscures their potential and impoverishes social and economic debate. It also means that these rights are often dismissed as old-fashioned and dated: they are often seen as expensive and optional extras in an era of globalisation and free markets.
In addition, the marginalisation of socio-economic rights means that the needs and impoverished status of the most disadvantaged groups in society often disappear from view. There is often considerable complacency about the extensive protection now given to human rights, with European states in particular often confident that their legal and political systems protect rights in an effective and comprehensive manner. However, our common language of human rights has little to say about poverty or social exclusion or the denial of human dignity that can occur as a result of inadequate housing, economic exploitation or deficient health and welfare support. If these denials of basic human entitlements cannot be fitted into the framework of civil and political rights, then they are not usually acknowledged within the discourse of rights as significant harms. As a result, our detailed and sophisticated vocabulary of rights is often of little use to the homeless or the destitute or others left at the margins of society.52
The Reasons for the Marginalisation of Socio-economic Rights

The reasons for the continued marginalisation of socio-economic rights are not hard to find. To begin with, the secondary status of socio-economic rights at the international level impacts upon the status of these rights at national level. For example, the judgments of European Court of Human Rights have considerable binding force in Europe, and the Court’s jurisprudence has had a considerable impact on the national legal systems of most European systems: in contrast, while the jurisprudence of the ECSR has been influential, it has not had the same impact because its status and profile within the Council of Europe mechanisms is not nearly as significant as that of the Court.
This process also works in reverse: if socio-economic rights are not treated as part of the national human rights agenda, then there exists little pressure on governments to take steps to remedy the marginalisation of these rights on the international stage. In addition, the lack of legal protection for socio-economic rights at both international and national level ensures that socio-economic rights are often marginalised in public policy and popular debate. The existence of legal protection could symbolically highlight the importance of these rights and encourage governments to think about how to respect, protect and fulfil these rights: in contrast, the absence of such protection signals that socio-economic rights are marginal to the main human rights project.
However, it is necessary to dig even deeper to understand why socio-economic rights have been marginalised within the discourse of rights, and how this situation might be changed. The historical and philosophical foundations of the modern human rights project have been a key factor in this process of marginalisation. Discourse about rights is inevitably influenced by the historical circumstances from which it emerges. The contemporary language of human rights emerged in the wake of the Second World War and was shaped by the Cold War and the experience of the dictatorships that flourished during this period. As a result, national and international human rights discourse has for most of its post-1945 existence been mainly concerned with protecting what Isaiah Berlin described as “negative liberty”, i.e. the basic entitlement of the individual to personal autonomy and freedom from external domination.53 This explains why rights discourse has tended to give priority to the civil and political rights of the individual. It also explains why the philosophical conviction remains commonplace that human rights are primarily concerned with protecting the individual against external oppression.
In contrast, socio-economic rights are concerned with securing the autonomy and dignity of the individual through the collective provision of basic goods. This involves what Berlin characterised as the “positive liberty” of individuals, i.e. the freedom that individuals enjoy as a result of the external provision and support they obtain from their membership in society, as distinct from the negative freedom from external interference to which individuals are entitled by virtue of their inherent humanity. In response to the historical experience of totalitarianism, “negative liberty” came to be treated as the fundamental entitlement of all individuals and as the primary concern of human rights discourse. In contrast, “positive liberty” was often relegated to a secondary status, and at times treated with suspicion due to its uncertain parameters and the potential justification it offered for dictatorial governments to override personal autonomy in the name of the greater good.54 Therefore, socio-economic rights became conceptualised as occupying a subordinate place to the core civil and political rights.
As the totalitarian threat has receded and the overwhelming emphasis of neo-liberal political ideologies on negative freedom has come under sustained attack, it is unsurprising that recent years have seen an attempt to bring socio-economic rights into the rights mainstream. In addition, the relationship between negative liberty and positive liberty has come under fresh philosophical scrutiny. In the Anglo-American world, liberal theorists such as Frank Michelman and Jeremy Waldron have made the argument that even the enjoyment of fundamental civil and political rights is realistically only possible if an individual has a minimal level of resources, such as food and shelter.55 Theorists of deliberative democracy such as Jürgen Habermas and Carlos Nino have also indirectly opened the door to socio-economic rights, through their analysis of the conditions necessary to establish the foundations of a meaningful democratic polity.56 Scholars such as Norberto Bobbio with deep roots in socialist intellectual traditions have united the commitment to positive liberty inherent in these philosophies with well-developed accounts of the importance of negative liberty: in so doing, they have rejected the idea that social and civil and political rights are fundamentally different in nature and made a positive case that individuals are entitled to claim both negative protection from unjust external interference and positive support from the societies in which they are embedded.57
These sophisticated new accounts of the relationship between the forms of human freedom protected by civil and political rights and socio-economic rights have eroded the philosophical justifications that once were used to marginalise the latter category of rights. However, the shape and content given by history to the language of human rights is difficult to alter, and old philosophical arguments remain embedded in political and legal understanding long after academic theorists have moved on. Most of the current institutional and legal frameworks concerned with human rights are still constructed around the outmoded assumption that strong protection must be given to civil and political rights in the interests of protecting “negative liberty”, while socio-economic rights with their problematic link to “positive liberty” can be legitimately relegated to the sidelines of rights discourse.
In addition, other justifications exist for treating socio-economic rights as fundamentally different to civil and political rights, which again serve to reinforce the historical dichotomy between both sets of rights. These justifications rest upon the fact that serious uncertainty exists as to how to define the scope of the socio-economic rights set out in international human rights law, and disagreement also exists as to what individuals are entitled to as a matter of right to enable them to enjoy “positive liberty”. It is easy to say that all individuals have a right to the “highest attainable standard” of health, or to enjoy “just and favourable conditions of work” (as stated by Articles 7 and 12 ICESCR), but what exactly do these rights consist of? Also, what must a state do to ensure that individuals enjoy these rights? This uncertainty has haunted socio-economic rights from the beginning of the post-war era, and continues to play a role in their marginalisation.
This lack of precise definition has at times caused political philosophers to express concern about the open-ended nature of socio-economic rights claims, and to suggest that giving these rights equal status as other rights may dilute the force and impact of human rights discourse in general. Joseph Raz and others have warned against the possibility of “rights inflation”, where attempts to stretch rights claims too far may discredit the entire human rights project:58 socio-economic rights could be seen as a dangerous generator of “rights inflation”, which makes some theorists (as well as many judges and politicians) sceptical about their status as full human rights. Their lack of precise definition also makes them vulnerable to being “hijacked” by pressure groups, which can use the vague language of socio-economic rights to fight to hold onto their particular share of the current social or institutional order. This again runs the risk of discrediting the human rights project.
More importantly, the uncertainty that surrounds socio-economic rights means that the argument is often made that deciding what measures are required to give effect to these rights must be a political choice, which only elected governments and parliaments have the legitimacy and expertise to make. This argument rests on the basis that giving effect to social rights is a complex matter. For individuals to enjoy socio-economic rights, it is necessary for states to take action to ensure that adequate standards of health care, employment protection, education, social security and other forms of social support are available and accessible to all. However, establishing effective systems of social support is not a simple matter. It requires policy-makers and administrators to make difficult decisions concerning resource allocation. It also requires them to take into account a wide range of relevant factors such as the economic costs of existing or proposed measures, their practical impact in a complex and diversified global worlds, and the possibility of unintended or unanticipated consequences. Elected legislative and executive branches of national governments can be made democratically accountable for their social and economic policies. They also can draw upon a wide range of technical expertise in areas such as health care economics or educational development theory to assist their decision-making. In contrast, the standard type of adjudicatory bodies which assess state compliance with human rights standards, such as national courts and international human rights bodies, lack both democratic accountability and technical expertise. Therefore, it is often assumed that socio-economic rights cannot be made justiciable or subject to adjudication by international human rights supervisory bodies as civil and political rights can be.59
In other words, in contrast to the apparent precision of civil and political rights, socio-economic rights are often seen as too open-ended and vague to be given a central place in human rights law or practice. As a result, they are generally relegated to the realm of political choice and thus marginalised, effectively given the status of second-class rights. The philosophical objections to the recognition of socio-economic rights as basic entitlements may have faded, but the arguments that they lack a clear content remain powerful.
Escaping Marginalisation – The Need for Rigorous and Effective Socio-economic rights Jurisprudence
It is correct that identifying what states must do to respect, protect and fulfil socio-economic rights will often be a more difficult and complex task than determining what states must do to respect their obligations in respect of civil and political rights. Resource allocation decisions in areas such as health care, education and welfare provision are complex and multifaceted. There are many different ways of designing effective systems of social support and protection: national governments must be given the discretion to select between the different policy options available, and to adopt measures which best reflect popular opinion, long-term strategic priorities and the background socio-economic context. Various forms of economic and social policies might in different circumstances be sufficient to respect, fulfil and fulfil the core socio-economic rights: neo-liberalism might work in one context, other forms of economic and social organisation in another.
It is also correct that determining when a state has failed to discharge its obligations to respect, protect and fulfil socio-economic rights may at times be a difficult process. Adjudicatory bodies such as courts and human rights bodies often lack the range of information, knowledge and expertise necessary to decide whether a state policy is not in conformity with its obligations. In addition, disputes about whether state action has violated the socio-economic rights of individuals or groups are often “polycentric” in nature, as the state policies in question will often affect multiple parties in different ways: as Lon Fuller argued, legal forms of adjudication do not handle such issues easily, based on they are on a restrictive model of disputes brought by one party against another which cannot easily accommodate multiple perspectives.60
Therefore, concerns that the nature of state obligations in respect of socio-economic rights are uncertain and difficult to determine have some validity. However, as many commentators have argued, the differences between socio-economic and civil and political rights are not fundamental, but rather differences of emphasis and degree.61 Resource allocation issues, complex policy choices and questions of polycentricity arise in giving effect to civil and political rights as well, if not always to the same degree as occurs in the context of socio-economic rights.
Furthermore, socio-economic rights and civil and political rights are also similar in how they are defined and set out in human rights instruments. Both are framed in abstract terms: for example, the right to freedom of expression as set out in Article 19 ICCPR and Article 10 ECHR is worded at a high level of abstraction, just as are the socio-economic rights set out in the ICESCR and the ESC. The difference between civil and political rights and their socio-economic equivalents is that civil and political rights have benefited from their prime status within the human rights mainstream and from being interpreted and applied by adjudicatory bodies whose judgments are treated as having binding force. The right to freedom of expression is commonly understood in a more precise and clearly defined manner than the right to health care because it has been authoritatively interpreted and applied by institutions such as the European Court of Human Rights, the US Supreme Court and other bodies with a similar status. In contrast, socio-economic rights have in general not received similar authoritative interpretations and therefore are conceptualised as lacking precision.
In other words, socio-economic rights have been historically marginalised, both in philosophical debate and legal analysis: therefore, they have not benefited to the same extent from the process of rational interpretation, application and rigorous analysis that have given civil and political rights guarantees such as those contained in the ECHR or the US Bill of Rights. Therefore, socio-economic rights are not so different from civil and political rights when it comes to their scope and content. For both sets of rights, there is a need for a rigorous analytical focus to determine the nature and extent of state obligations. Socio-economic rights are not inherently indeterminate or lacking in substantive content: they have just lacked the benefit of a sustained process of interpretation and application.
In addition, socio-economic rights share with civil and political rights a need for forms of legal protection to ensure that they are respected and observed. Systems for monitoring and enforcing compliance with human rights often lack real impact, but even at their weakest they can play a role in ensuring that national governments and public administration cannot wholly ignore basic individual entitlements.62 They also provide some protection against decisions which override the fundamental entitlements of the individual in the name of utilitarian goals or simple executive convenience, especially if rights are given concrete legal effect within national legal systems. Socio-economic rights need to be protected in this way just as much as do civil and political rights: the basic need for monitoring and enforcement mechanisms is shared across the spectrum of rights.
Where socio-economic and civil and political rights may differ is that deciding when a state is in violation of a socio-economic right may at times be a more complex task. However, this is a matter of degree, not a matter of fundamental substance. The manner in which courts and other adjudicatory bodies interpret and apply socio-economic rights may differ from how civil and political rights are interpreted and applied. For one thing, state parties will be usually be given a wider range of discretion in how they choose to respect, protect and fulfil socio-economic rights than will often be the case with civil and political rights. In addition, the concerns discussed above about democratic accountability and technical expertise will need to be taken into account: while these issues arise when any human rights instruments are interpreted by adjudicatory bodies, they deserve particular attention in the context of socio-economic rights. However, a rigorous process of interpreting the scope of socio-economic rights and the nature of state obligations that arise in respect of them should be able to accommodate these complexities, while also giving effective protection to individuals and groups.
There are therefore no fundamental differences in treatment between the two sets of rights that justify the marginalisation of socio-economic rights. However, this marginalisation remains a reality, which has serious consequences for the ability of human rights discourse to engage with the needs of disadvantaged groups. There is a need to redress this marginalisation, but the prejudice against socio-economic rights based on their alleged lack of substance and unenforceability remains strong. As a result, the first step in any attempt to cure the problem of the marginalisation of socio-economic rights must be to develop methods of giving authoritative, rigorous and substantive interpretations of these rights, which both ensure their effectiveness while also demonstrating that they are not fundamentally different to their civil and political brethren. If this is done, it will not solve all the problems of the marginalisation of these rights: however, it will help to overcome the prejudice that renders them second-class citizens in the world of human rights.
Therefore, to combat the historical legacy of the marginalisation of socio-economic rights in philosophical and legal debate, and to counter the arguments that these rights are too uncertain in scope to be treated as anything other than political aspirations, it is necessary that bodies charged with interpreting and applying socio-economic rights develop a rigorous, rational and coherent jurisprudence. They need to take into account the concerns about indeterminacy, democratic accountability and technical expertise that arise whenever attempts are made to give substance to socio-economic rights. At the same time, they need to give effective protection to these rights, and make it possible for disadvantaged groups in society to challenge forms of state action (or state inaction) which leaves them without access to decent housing, health care social protection and other essential ingredients of a dignified life. In the absence of such a rigorous and effective interpretative approach, then civil society activism and the good intentions of international organisations in the field of socio-economic rights will always lack the support of a firm foundation of normative standards.
Some Models of Socio-economic Rights Jurisprudence
This explains why so much interest has been generated by the development in recent times of constitutional socio-economic rights adjudication at national level. For example, the jurisprudence of courts in South Africa, India and Latin America on core social rights such as the right to health care, the right to a clean environment and the right to housing has attracted a considerable amount of academic scrutiny and interest from civil society. This jurisprudence remains a work in progress: striking the balance between effective protection of socio-economic rights and developing rigorous and consistent standards has proved difficult.63 It also is usually the product of “aspirational” constitutional systems, i.e. constitutional systems where courts are given much more powers to protect human rights in general than is the norm in other states, often as a result of the desire to overcome the legacy of dictatorships, colonialism or, in the case of South Africa, apartheid.64 This means that it may prove difficult to transplant these national models of socio-economic rights jurisprudence into the constitutional law of other states. However, the existence of these models is important, and their influence will doubtless continue to grow.
There is also a growing interest in the protection that established civil and political human rights instruments can offer individuals against denial of access to housing, health care and other forms of social entitlements. For example, the case-law of the European Court of Human Rights protects individuals in certain circumstances against intrusions upon their home life, exposure to degrading treatment as a result of their poverty, and threats to their life that result from state neglect and denial of access to health care.65 The emerging international human rights jurisprudence on equality and non-discrimination also provides some indirect protection for socio-economic rights, by protecting individuals and groups against unequal access to health care, housing, education and social protection. New human rights instruments, such as the UN Convention on the Rights of Persons with Disabilities, reflect the interconnectedness of socio-economic and civil and political rights by recognising the importance of positive provision of essential resources by the state and how this is necessary to enable individuals to live in dignity. 66 This will provide a firm basis for the development of human rights standards based on these instruments, which again will extend some protection to socio-economic rights.
However, it remains essential that a substantive, rigorous and normatively sound jurisprudence also emerges from the international instruments that directly protect socio-economic rights. Socio-economic rights will only be brought within the human rights mainstream if the international instruments that protect them are seen as capable of generating clear and substantive standards which states can legitimately be required to respect. In the human rights field, international instruments establish the general template for rights protection at the national level: this is why there is a need for an effective and rigorous model of socio-economic rights jurisprudence to exist at the international level.
In this regard, the General Comments on the ICESCR periodically issued by the CESCR have been hugely significant, as they have given real substance and content to socio-economic rights. In particular, General Comment No. 3 on the general obligations of states under the ICESCR is perhaps the single most important attempt to flesh out the substantive content of socio-economic rights. In this Comment, the Committee took the view that states were subject to two different types of obligation under the Covenant. Firstly, they were obliged to give immediate effect to the “minimum core” of each right recognised in the Covenant, i.e. the minimum essential level of provision that can qualify as respecting the right in question. Secondly, states must also take steps to give “progressive realisation” to the ICESCR rights, i.e. take reasonable steps to ensure that socio-economic rights are progressively given ever-greater effect and substance.67
This dual approach has become the general template for assessing compliance with socio-economic rights, although it is not without problems.68 However, the CESCR has only had partial success in building up a substantial jurisprudence based on the analysis adopted in the General Comment. As already discussed, this is partially due to the CESCHR having to adopt a relatively cautious approach because of the textual limitations of the Covenant, but also because of the inherent limitations of the ICESCR national reporting mechanism and the inability of the CESCR to receive individual complaints. National reporting systems only allow human rights adjudicatory bodies to develop a limited case-law, as they only permit a general assessment of the situation in the country concerned: individual complaints, in contrast, permit adjudicatory bodies to examine whether a state has acted in conformity with its obligations in a specific context, thereby allowed the development of a more nuanced and sophisticated jurisprudence. The CESCR has lacked this opportunity: however, the introduction of the Optional Protocol may over time change the situation, and enable the Committee to put flesh on the bones of its jurisprudence.
The Jurisprudence of the European Committee of Social Rights
The jurisprudence of the ECSR is another work in progress, but may be becoming a prime model of a rigorous, effective and sophisticated socio-economic rights jurisprudence. The European Social Charter in both its original and revised form has been in existence for over fifty years and, as discussed above, has suffered from the marginalisation of socio-economic rights in Europe: as a result, both the Charter and the jurisprudence of the ECSR is often overlooked. The profile of the ECSR has also suffered as a consequence of the uncertainty that has at times existed as to its status and its relationship with the Governmental Committee and the Committee of Ministers: in its previous incarnation as the Committee of Independent Experts, the ECSR was at times viewed as merely a source of expert advice on the meaning of the Charter, not as an adjudicatory body providing a legally authoritative interpretation of its text.69
In addition, as with the CESCR, the Committee has also until recently had to attempt to develop a meaningful set of standards solely through the periodic national reporting mechanism provided for by the Charter. Since its first cycle of conclusions on national reports, the Committee has adopted a rigorous set of reporting requirements, asking state parties a constantly reviewed and revised set of questions to enable it to assess conformity with the Charter with line with its dynamic interpretation of this instrument. Despite initial criticism from the Governmental Committee, the Committee also has taken a robust position in assessing state conformity under this procedure, and will examine whether a state complies with its obligations under the Charter even after making an initial finding of conformity.70 Through this reporting process, the Committee has over time developed a sophisticated approach to interpreting the Charter and defining the nature of state obligations. However, like the similar national reporting procedures at UN level, this process has inherent limitations: the national reports from state parties often lack detail and NGOs and other organisations rarely comment on the contents of these reports or become involved in the reporting process. This means that the Committee must in general make assessments of conformity based largely on a formal assessment of existing state law and official policy, rather than of the actual situation on the ground or how the state is meeting its positive obligations under the Charter in practice. This makes it difficult to develop a precise and focused jurisprudence and encourages a quasi-formalistic approach to assessing the actions of state parties.71
However, recent developments have strengthened the Charter system. The Committee’s status and the procedure for reviewing state reports has been clarified, partially as a result of the 1991 Turin Protocol and shifts in the internal procedure of the Council of Europe, and partially because the Committee has taken a firm view that the text of the Charter clearly establishes that its conclusions are legally authoritative. This has strengthened the Committee’s status and enhanced its profile, even if the Charter mechanism remains relatively marginalised within both the Council of Europe and across Europe as a whole. In addition, as noted above, the revised Social Charter extends the limited list of rights protected in the original instrument, which again has strengthened the profile of the ESC mechanism as a whole.
Also, the introduction of the collective complaints procedure through the Additional Protocol of 1995 has enabled the Committee to flesh out and deepen is jurisprudence. By allowing NGOs and national employer and employee representative associations to bring complaints to the Committee alleging the existence of a situation of non-conformity that has a “collective” dimension, i.e. which is not confined to individual cases, this procedure allows the Committee to identify the precise nature of state obligations under the Charter in the particular context that forms the subject of the complaint, without having to examine complex individual cases in detail. The collective complaints procedure is also “quasi-judicial” in nature, with both the complaint organization and the state party submitting extensive written arguments in an adversarial process, with the Committee having the ability if it wishes both to ask the parties follow-up questions and to stage a public hearing on the matter at issue. This adversarial process enables the Committee to receive detailed arguments from both parties, which in turn helps it to develop better reasoned decisions on the merits on the complaint.72 Holly Cullen has noted that the collective complaints procedure is the first “quasi-judicial” process in international human rights law which has been designed specifically for socio-economic rights: it certainly has provided an important platform for the Committee to expand and project its interpretative approach to the original Charter and its revised successor instrument.73
The Committee has now made decisions on the merits in respect of over forty-six collective complaints, and its case-law has expanded and deepened as a result. Its decisions on collective complaints should not however be seen as existing in isolation: these decisions combine with its conclusions on national reports to form a reasonably comprehensive and substantive case-law. The collective complaints and national reporting procedures are both mechanisms for assessing state conformity with the Charter, and the Committee’s reasoning on collective complaints is carried over and applied in assessing the situation in state parties via the reporting procedure, and vice versa. This has meant that the Committee is progressively developing one of the more systematic and well-reasoned corpus of socio-economic rights jurisprudence that currently exists.
The Interpretative Approach of the ECSR
This case-law has several important characteristics, which helps to ensure both its rigour and its effectiveness. Since its first set of conclusions in the late 1960s, the Committee has taken the view that its role is to adopt an independent interpretation of each of the specific rights set out in the Charter, making use of the standard techniques for interpreting human rights treaties as used by the European Court of Human Rights and other human rights bodies. This means that the Committee does not assess whether states are conforming to a common pan-European standard in how they give effect to Charter rights, such as the right to health care or the right to social assistance. This could result in a levelling-down of protection and a dilution of the substance of the rights set out in the Charter. Instead, the Committee makes an assessment based upon the text of the Charter as to the nature and scope of each individual Charter right and what obligations they impose upon state parties. This practice of independent interpretation ensures that the focus is on the objective contents of the rights set out in the Charter and the correlative obligations imposed on states.
As a result, the ECSR has no hesitated to make multiple and repeated findings of non-conformity in respect of particular Charter rights, such as the right to strike protected by Article 6: while evidence of state practice may be useful in helping the Committee make its independent assessment of what the Charter requires, the Committee does not consider that the existing state of state practice shapes the content of the socio-economic rights set out in the text of the Charter. The Committee has also taken the view that long-established state practices may nevertheless not be in conformity with the requirements of the Charter, and also that terms and concepts contained in the text of the Charter and developed in the reasoning of the Committee must be given an autonomous meaning. (The European Court of Human Rights has adopted a similar stance.74)
Furthermore, the Committee requires that Charter rights must be effectively enjoyed: states must not alone conform in a formal sense to the requirements of the Charter, they must also take steps to ensure that individuals and groups can effectively enjoy their socio-economic rights. For example, Article 15 of the Charter sets out the right of persons with disabilities to independence, social integration and participation in the life of the community: in its interpretation of this Article, the Committee has taken the view that not alone must state parties remove obstacles to participation by persons with disabilities in the life of the community, but they must also introduce legislation prohibiting discrimination against persons with disabilities in employment, occupation, access to goods and services and other areas of social interaction, on the basis that such legislation is necessary to ensure full and effective enjoyment of the right at issue.75 This emphasis on effective protection is a major theme in the jurisprudence of the Committee, and has plays an important role in defining the extent of state obligations under the Charter.
The Committee has also adopted a dynamic approach to the interpretation of the Charter, recognizing that changing social and economic conditions, along with changing expectations and shifts in moral understanding, may require adjustments in its case-law. For example, it has interpreted Article 23 of the revised Charter, which recognizes the right of elderly persons to social protection, as requiring state parties to prohibit age discrimination in access to health care, housing and other areas of social provision, which reflects shifts in the expectations of older persons and the expanding reach of the concept of discrimination. To take another example, prior to the Mazurek judgment of the European Court of Human Rights,76 which adopted a similar analysis, the Committee had found that conferring lesser inheritance rights on children born out of wedlock constituted a violation of Article 17 of the Charter, which protects the right of children and young persons to social, legal and economic protection.77 In addition, in a series of collective complaints initiated by the Word Organisation Against Torture against several different state parties, the Committee took the view that Article 17 required that states enact explicit legislation to prohibit all forms of violent physical punishment directed against children.78 Both these developments in the Committee’s jurisprudence reflect an enhanced understanding of the unique status of children and the expanding field of children’s rights, and thus clearly demonstrate the Committee’s preference for a dynamic approach, rather than leaving the Charter locked into a dated and outmoded interpretative framework.
As part of this dynamic interpretative approach, the Committee also takes into account the general European context in which states parties to the Charter operate. It often cross-refers to the jurisprudence of the European Court of Human Rights, and tries to ensure that a seamless system of human rights standards is applied across the various Council of Europe rights instruments.79 It also cross-refers to CESCR, ILO and EU standards in developing its case-law, although the Committee emphasizes that it adopts its own independent interpretation of the Charter.80
In addition, in setting out the obligations to which states parties are subject, the Committee takes account of the relatively developed nature of European economies. This means, for example, that in interpreting the right to social assistance in Article 13 of both Charters, the Committee considers that states should ensure that every person in need should receive “adequate resources” via social assistance mechanisms, with the Committee defining “adequate resources” as “the resources needed to live a decent life and meet basic needs in an adequate manner”.81 It also requires that such social assistance should last for an adequate duration, be available as of right to a person in need, and be of sufficient quantity to satisfy basic needs, with the Committee assessing this latter criterion on the basis that the minimum level of assistance offered by a state to an individual should not be less than the “risk-of-poverty threshold value”, usually defined as 40% of median equivalised income. Such a requirement might be impossible for impoverished developing states to meet, at least while relying upon their own resources. However, for European economies, including those of the non-EU Eastern European states such as Moldova and Albania, this does not constitute an excessive obligation. The Committee’s case-law on this question gives an effective interpretation to the right to social assistance in Article 13, by recognizing that, for this right to be effectively enjoyed by those in need, it is essential for European states to provide a basic floor of social support.
As a result of its jurisprudential approach, the Committee has thus developed a rigorous case-law, characterized by its emphasis on giving effective and dynamic interpretation to each of the Charter rights, and basing its analysis of the specific obligations imposed upon state parties on an assessment of the internal logic and requirements of each of the Charter rights as defined in the text of the instruments themselves.
This is an interestingly different model of socio-economic rights adjudication in some respects to the “minimum core/progressive realization” dual-track general approach adopted by the CESCR in General Comment 3. The ECSR has not set out its approach in general terms, but instead has concentrated upon fleshing out each individual Charter right. This approach reflects to some extent the greater textual precision of the original Charter and its revised successor instrument, both of which define the rights they contain in greater detail than does the text of the ICESCR. It also reflects the fact that the ECSR developed its case-law initially before the CESR set out its general approach in General Comment No. 3, and also tended to concentrate upon labour law standards in its initial years, which lends themselves to a precise analysis rather than the application of a general approach.
The emphasis on giving an effective and dynamic interpretation to each specific Charter right has advantages. It has enabled the ECSR in its case-law to avoid some of the conceptual problems that the CESCR has faced in attempting to define the concept of a “minimum core”.82 It also allows the Committee to define with reasonable precision the nature of the obligations imposed on each state party by each specific Article of both the original and the revised Charter, which has given substance to what would otherwise be potentially indeterminate and uncertain rights.
However, the specific focus of the Committee’s case-law has meant that its underlying principles remain at times obscure and difficult to ascertain.83 This can create the perception that the Committee is engaged in a technical process of assessment, rather than attempting to define core human rights standards in a manner that makes them real and effective for disadvantaged groups. This has perhaps contributed to the relatively low profile of the ESC and the Committee’s case-law. In addition, the Committee’s techniques of interpretation have not always been as clear as they could be, in the absence of any CESCR-style general statement of interpretative approach. From an analysis of the Committee’s conclusions, it is not often apparent to what extent the Committee recognizes the limitations on its technical expertise, or what discretion it gives to national governments in assessing whether the complex social support systems they have constructed comply with the obligations of the Charter.
However, its decisions in collective complaints have enabled the Committee to begin to articulate its vision of the core values underlying the Charter. The collective complaints process has also been an invaluable opportunity for it to set out its interpretative approach, and to clarify important underlying elements of its case-law. In a detailed and comprehensive analysis of the collective complaints case-law, Holly Cullen has identified four such values: individual autonomy, human dignity, equality and solidarity, which shape the Committee’s case-law.84
In addition, Cullen has suggested that the Committee’s decisions on the merits of collective complaints are increasingly clarifying its techniques of interpretation, and making clear how the Committee’s legal reasoning shares much in common with that of the European Court of Human Rights and other well-established civil and political rights adjudicatory mechanisms. In particular, she notes that the Committee adopts a similar position towards fundamental rights as does the European Court of Human Rights: the Committee considers that the rights set out in the ESC have presumptive priority, and states may only justify a failure to adhere to their obligations under the Charter if they can demonstrate that the failure to respect protect and fulfill the right in question was objectively justified in the interests of the collective good, or was a de minimis infringement.85
Cullen also explores how the Committee uses the concepts of positive obligations, legitimate aim, legality, reasonableness and proportionality to structure its assessment of state conduct.86 She also examines the circumstances in which the Committee is prepared to give states a margin of appreciation, which include situations where complex issues of resource allocation, economic policy or labour regulation are concerned. Cullen also notes that the Committee takes account of the limits on its technical expertise and the necessity of giving states due discretion in how it defines the scope of state obligations under the ESC. In particular, she argues that the Committee will not dictate to states what particular expenditure or resources they should dedicate to maintaining systems of social support. However, the Committee will be prepared to find states not to be acting in conformity with their obligations under the Charter if they fail to deploy their resources to give effect to ESC rights, and in particular if they fail to secure the rights of the most vulnerable.87
It is possible to develop Cullen’s analysis further. For example, analogies also could be drawn between the Committee’s developing case-law and aspects of the CESCR jurisprudence, in particular its “minimum core’/’progressive realisation” twin-track analysis. This is reflected in the Committee’s willingness to require that states must put a certain level of basic resource investment in systems of social support, and then must take reasonable measures to give full effect to the Charter rights: it is in assessing whether a state has complied with both types of obligations that the concepts of proportionality, margin of appreciation and so on come into play.
Thus in Complaint 13/2002, Autism-Europe v France, Decision of 7th November 2003, the ECSR rejected the complaint’s argument that funding for education for autistic children should come from the education rather than the health budget: the allocation of resources between various parts of the state budget was a matter that come within the competency of the state. However, the Committee proceeded to emphasise that
[w]hen the achievement of one of the rights in question is exceptionally complex and particularly expensive to resolve, a State Party must take measures that allow it to achieve the objectives of the Charter within a reasonable time, with measurable progress and to an extent consistent with the maximum use of available resources. States Parties must be particularly mindful of the impact that their choices will have for groups with heightened vulnerabilities as well as for others persons affected…88
Applying this approach, the Committee noted that France had made little progress in securing the participation of autistic persons in mainstream education or in providing adequate resources to meet their special educational needs; that use was still being made of a more restrictive definition of autism in educational policy than that adopted by the World Heath Organisation; and that there were insufficient official statistics with which to rationally measure progress. These deficiencies in French policy taken together as a whole ensured that France was not meeting its Charter obligations under Articles 15 and 17 and the non-discrimination clause Article E of the revised Social Charter.89 In other words, even though the Committee took the view that how France allocated resources in general to the education of autistic children came within the wide margin of appreciation given to state parties, it concluded that the failure of the French government to make basic provision for autistic children or to deploy its resources in a reasonable manner to improve the situation was not in conformity with its positive obligations under the Charter.
A similar analysis was adopted in Complaint No. 33/2006, International Movement ATD Fourth World v. France, where the Committee concluded that France was not in conformity with the Charter on the basis that the allocation of public housing was failing to meet the needs of the most disadvantaged groups in French society, thereby violating Article 30 (right to protection against poverty and social exclusion), and Article 31 (right to housing) of the Revised Social Charter. Here, the Committee clarified that a margin of appreciation was left to state parties in allocating resources, and the Charter did not impose an obligation of “results” upon the French government. However, the Committee reiterated that the rights recognised in the Social Charter “must take a practical and effective, rather than purely theoretical, form”, with the result that state parties must “to make available the resources and introduce the operational procedures necessary to give full effect” to Charter rights, including taking measures such as maintaining statistics and reviewing the operation of systems of social support and taking reasonable steps to ensure “steady progress” towards full implement of the rights.90 Applying this approach, which reflects its emphasis on the need to give legal and practical effect to Charter rights, the Committee held that the French administrative machinery for regulating provision of public housing was “manifestly inadequate” to ensure “due priority for the provision of social housing for the most socially deprived”. It also concluded that the right to housing had also been violated on account of a shortage of affordable housing and camping sites for Travellers, and that there had been a violation of the Article 30 right to protection against poverty on account of the “lack of coordinated approach to promote the effective access to housing to persons being or risking to find themselves in a situation of social exclusion or poverty”.
The Committee came to similar conclusions in Complaint 39/2006, Feantsa v France. In its decision, the Committee recognised that the French government was entitled to a relatively wide margin of appreciation in how it chose to allocate social housing and financial resources in general. However, once again, it concluded that the lack of “sufficient progress as regards the eradication of substandard housing”, “unsatisfactory implementation of legislation” to prevent evictions and provide housing for the homeless, an inadequate supply of housing and a failure to make provision for an effective system of social housing allocation that made sufficient provision of the most marginalised groups constituted violations of Article 31.91
In these cases, the rigorous nature of the Committee’s jurisprudence is clear. The obligations imposed upon states by each of the rights at issue – education in tandem with the right to children to social protection and the right to non-discrimination in Autism-Europe, housing in ATD and Feantsa, also freedom from poverty in ATD – were defined in line with the Committee’s dynamic interpretative approach, with emphasis placed on the need to make Charter rights effective and to provide support in particular for disadvantaged and marginalised groups. The failure by France in all three contexts to make adequate basic provision to ensure enjoyment of the rights in question, combined with the lack of reasonable steps to give better effect to the rights, resulted in findings of non-conformity notwithstanding the Committee’s willingness to recognise the existence of a reasonably wide margin of appreciation in all three situations.
These three collective complaints have helped to clarify the Committee’s case-law and its interpretative techniques. They have also helped to articulate the underlying values of the Charter, with the Committee emphasizing the importance of equality and dignity in Autism-Europe and again reiterating the crucial importance of dignity in the two housing decisions. Social solidarity also featured as a value in the housing cases, in particular the importance of communal provision for the poorest, as did the value of individual autonomy, as reflected in the Committee’s emphasis on the importance of having transparent and accessible housing allocation mechanisms in place. All three decisions also demonstrate the potential of the Charter case-law to protect disadvantaged and marginalised groups in society.
All three decisions also now form important elements of the Committee’s expanding jurisprudence, along with its conclusions in respect of national reports and the other important decisions it has taken in respect of collective complaints, many of which increasingly touch on issues of great significance to marginalised groups. In particular, the Committee is developing a ground-breaking case-law on the nature and extent of state obligations towards severely marginalised social groups such as the Roma, who face considerable difficulties in accessing health care, housing and social support.
For example, in Complaint 46/2007, European Roma Rights Centre (ERRC) Bulgaria, the Committee concluded that the Bulgarian government policies did not adequately address the specific health risks affecting Romani communities and therefore were not in conformity with the right to health care protected by Article 11 ESC taken together with the right to non-discrimination protected by Article E, as well as the right to social assistance protected by Article 13 §1, while in Complaint 27/2004 ERRC v Italy, the Committee concluded that the inadequate supply of housing for Roma in Italy and a failure by local authorities to implement administrative degrees and provide shelter and support for these communities constituted a violation of Article 31 of the revised European Social Charter taken together with Article E.92
In all these cases, the Committee is increasingly emphasising the core values that underlie the Charter and also attempting to clarify its interpretative approach, while also drawing a line between the appropriate level of discretion to be given to national authorities and the need to ensure effective protection for marginalised groups. In addition, its decisions on these collective complaints have built upon its conclusions in previous cycles on national reports, and will in their turn be fed into the national reporting process.
Therefore, the jurisprudence of the ECSR, as developed via both its conclusions on national reports and through collective complaints, represents a well-developed model of a rational and rigorous case-law which gives substantive meaning and effect to socio-economic rights, while also recognizing the necessity for human rights adjudicatory bodies to acknowledge the limits of their technical expertise and the need to give some discretion to states in how they organize their social and economic policies.
Conclusion
The case-law of the ECSR demonstrates that a meaningful socio-economic rights jurisprudence is possible. Along with the constitutional jurisprudence emerging in South Africa, Columbia and elsewhere, and the very influential interpretative approach adopted by the CESCR, the CESR’s case-law therefore goes some way to answering the doubts of those who query whether such a jurisprudence can exist, and thereby calls into doubt one of the key justifications given to support the effective marginalisation of socio-economic rights.
However, the existence of this jurisprudence will not cure the problem of marginalisation by itself. It remains to be seen whether states will take the Charter more seriously, and whether civil society, the Council of Europe and other international organizations will engage with the ECSR’s case-law and begin to bring the Charter, and with it other socio-economic rights instruments, into the mainstream of rights discourse. The existence of a coherent case-law that shows that socio-economic rights can have substance is a first step: it remains to be seen whether the marginalisation of socio-economic rights will ultimately be cured.