UN System for Protection of Human Rights - Essay Example

?Running Head: UN System for Protection of Human Rights UN System for Protection of Human Rights [Institute’s UN SYSTEM FOR PROTECTION OF HUMAN RIGHTS Introduction According to its definition, Justiciability refers to the limit over the court and legal bodies on their ability to exercise their judicial authority over issues. Justiciable matters are those over which the court possesses the ability and authority to provide an adequate resolution of the dispute. This is true because not all matters that are brought in front of a court can be resolved by the court. For example, courts all over the world believe that political questions are not justiciable since the court is not competent to issue a decision in those matters (Serrano & Popovski, 2010, p. 146). Over the past few decades, there has been a heated debate over the justiciabilty of social, economic and cultural rights. In the recent past, many countries have expanded the scope of their constitutions to include social, economic, political and cultural rights to its citizens and many domestic courts, federal courts, regional bodies and international organisations have issued several ruling over social and economic claims (Baderin & Ssenyonjo, 2010, p. 479; Schutter, 2010, p. 173). This has led many experts to conclude that the debate regarding the justiciabilty of social, economic and cultural matters is over and that these rights are justiciable. With Inter American Court of Human Rights, European Court of Human Rights, African Court on Humans and People’s Rights and other regional courts extending their number of judgements on such matters, the common view is that social, economic and cultural rights have become justiciable (Sepulveda, et al., 2003, p. 67). Therefore, when the United Nations General Assembly adopted the Optional Protocol to the International Covenant of Economic, Social and Cultural Rights many human rights activists and people all over the world termed the same as “victory for socio-economic rights’. However, this paper makes an attempt to evaluate, critically, this statement by presenting both sides of the story. The paper would begin with introducing brief histories and background of the International Covenant on Economic, Social and Cultural Rights, Committee on Economic, Social and Cultural Rights and Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which would be followed by the evaluation of the Justiciability debate. Discussion International Covenant on Economic, Social and Cultural Rights Drafted in the year 1954 and signed on December 16, 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR) is a United States General Assembly Resolution. As the name suggests, it binds its parties towards ensuring the protection and provision of the economic, social and cultural rights of individuals. Currently, this multilateral treaty has 160 parties that have signed and ratified the covenant. However, 32 states have either not signed or signed but nor ratified the covenant up till this point in time (Young, 2012, p. 113). Interestingly, the United States of America, which signed the covenant on October 5, 1977, even after 35 years is yet to ratify the constitution. Six then, the United States has been governed under six different administration of Cater, Reagan, George W. H. Bush, Clinton, George W. Bush and Obama administration (Baderin & Ssenyonjo, 2010, p. 479). As conservative republicans, Reagan, George W. H. Bush and George W. Bush administrations did not see economic, social and cultural rights as “inalienable human rights”, but as desirable economic, social and cultural goals that should not be the object of binding covenants. On the other hand, Carter, Clinton and Obama administration have recognised the same as “human rights”, but have delayed ratifying the covenant into the US constitution because of various political reasons (Sepulveda, et al., 2003, p. 67). In essence, ICESCR is an extension of the Universal Declaration of Human Rights. In fact, the history of ICESCR can be traced back to United Nations Conference on International Organisation (UNCIO) where a declaration was proposed titled “The Essential Rights of Man”. When the 1945 San Francisco Conference led to the creation of the United Nations, the Economic and Social Council of the United Nations was assigned with the task of drafting the same into a declaration (United Nations, 2010, p. 10). However, in the process, UN experts decided to split the same into two sections; one dealing highlighting the general and inalienable rights of man, which would become a declaration and the other containing binding commitments, which would take the form of a covenant (Baderin & Ssenyonjo, 2010, p. 479). The former was drafted as a declaration and became known as the Universal Declaration of Human Rights. Nevertheless, the drafting on the convent continued backstage, but there drafting team believed that there was room for further essential division between civil liberties and political rights, which are essentially negative rights, and economic, social and political rights, which are essentially positive rights. The former became “The International Covenant on Civil and Political Rights” and the later emerged as “International Covenant on Economic, Social and Cultural Rights” (Dickinson, et al., 2012, p. 288). The covenant is divided into five parts with thirty one articles. They specify different social, economic and cultural rights of people such as right of self determination, right to health, right to education, right to development, right to science and culture, right to public participation, right to an adequate standard of living, right to work and others (United Nations, 2010, p. 10). Committee on Economic, Social and Cultural Rights The Committee on Economic, Social and Cultural Rights (CESCR) is assigned the task to monitor the implementation of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by its state parties. Essentially, CESCR is a UN body of 18 international experts from different countries of the world that meet three times each year, usually in Geneva, to consider and evaluate the reports submitted by state parties to the UN regarding their progress, implementation and compliance with the ICESCR (Keller & Ulfstein, 2012, p. 249; United Nations, 2010, p. 10). The members of the committee are elected with a four year term, with half of the members being elected after every two years. The parties that have ratified the Covenant are bound to provide their first report within the period of two years outlining the legal, judicial, policy and others measures taken to implement the covenant within their respective states. After that, the parties are bound to submit similar reports every half a decade (Auweraert, 2002, p. 55). Optional Protocol to the International Covenant on Economic, Social and Cultural Rights The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights allows individuals or group of individuals, who have exhausted all domestic remedies, to take their case to the Committee on Economic, Social and Cultural Rights. However, that is permissible only if they believe that their economic, social or cultural rights have been violated that have been set forth in the International Covenant on Economic, Social and Cultural Rights (Dickinson, et al., 2012, p. 288). Up till this point in time, the optional protocol has not yet come into force since fort the time, it has to be ratified by at least ten parities and only after three months of the tenth ratification, it will enter into force. It has only been ratified by eight parities, which are Argentina, Bolivia, Bosnia and Herzegovina, Ecuador, El Salvador, Spain, Mongolia and Slovakia (Young, 2012, p. 113). However, 41 different countries have signed the optional protocol, but the fact is that even after three years, more than 140 countries and states have not either signed or ratified the optional protocol. Even countries like United States, United Kingdom, China, Russia, Germany, France, Australia, Canada and others have not even signed the optional protocol which is the manifestation of the fact the optional protocol has received a lukewarm response (Keller & Ulfstein, 2012, p. 249). The rules dictate that the committee would be responsible for bringing any communication submitted to it by the aggrieved parties to the attention of the party or state concerned. However, it would do the same without any public announcement, but in a confidential manner (United Nations, 2010, p. 10). From that point, the receiving party would have six months to provide a written explanation and a remedy, if there is any. In exceptional circumstances, the committee may ask the party to take some preventive and urgent measures for avoiding irreparable harm to the aggrieved party in the process (Serrano & Popovski, 2010, p. 146). Justiciability Debate of Economic, Social and Cultural Rights Even before considering the justiciabilty debate of the economic, social and cultural rights, it is imperative to examine and the nature, fairness and ethicality of these rights. In fact, the first and the prime reason why one might consider these rights not to be justiciable are from their immorality and unfairness (Baderin & Ssenyonjo, 2010, p. 75). Libertarian authors and experts such as Ayn Rand and Milton Friedman argue that there exists nothing such as “a right to a job”. A man has a right to accept a job, if he is offered a job from another person without any use of force or coercion. If we assume that every person has an inalienable right to a job then a person who is jobless or unemployed would be deprived of that basic right and thus the government or the state would be liable to provide him with a job (Serrano & Popovski, 2010, p. 146; Schutter, 2010, p. 173). Important here to note is the fact that any alleged “right” of a man that, in some capacity violates the right, freedom or liberty of another man, cannot be termed as “right”, but it would be an injustice, use of force or coercion to benefit one person or more at the expense of another person or persons. The “right” of one person cannot, in any capacity or at any level, provide the right to another person to enslave the other person and demand from him unchosen obligations, involuntary services and unrewarded duties. Proponents of utilitarian ideals argue that whenever there is a conflict between liberties and utility, one should chose utility. Utility refers to the greatest happiness for the greatest number of people. In other words, if, for example, by violating the right to job of one person, we can provide jobs to two or more than two people then it is fair. However, the fact is that ends do not justify means (Blau & Frezzo, 2011, p. 284). As mentioned earlier, that the assumption of a right to job for each individual would mean that the government or state is liable to ensure that every person has a job. It is ethical, moral and even fair for the state to assume the responsibility of provision of jobs since it is the right of every person to have a job, but means that are utilised to achieve this end are never ethical or fair (Rehman, 2003, p. 414). A state or government, in itself, does not have the resources to provide someone with employment. It will have to take resources from someone else first to create employment. Most governments usually solve the problem of unemployment through creating jobs in the public sector. However, the fact is that for creation or expansion of that public sector, it will either have to borrow money, print more money or tax people (Keller & Ulfstein, 2012, p. 249). With borrowing money, the government itself does not pay the loan but the government pays that through selling common resources or taxing people with a clear violation of the right to freedom and liberty of individuals (Dowell-Jones, 2004, p. 310). Printing more money decreases the value of the existing money available in the market, thus; it erodes the value of the savings of the people thus infringing their rights. Lastly, taxation, as discussed earlier, leaves people with lesser disposable income to fulfil their needs. Therefore, jobs created with taxation, in essence, are a violation of the rights of one or more people to fulfil the so called “right of job” of one or more people (Sepulveda, et al., 2003, p. 67). Extending the same logic to other rights put forward in the ICESCR, such as the right to education, right to health, right to a house, right to an adequate standard of living; it becomes apparent that the provision of these rights can be in contrary to the provision of some civil rights and may cause infringement on civil liberties. For example, when a person is forced to employ another person, primarily because that person is jobless and he has a “right to a job”, then the employer would be sacrificing his right to private property and his right to make a profit (Dickinson, et al., 2012, p. 288). Therefore, until and unless, the state, government, domestic, regional and international courts can put forward a procedure to ensure the provision of these rights; these so called social, economic and cultural rights are not justiciable (Joseph, 2010, p. 452). Even at some level, civil and political rights may be termed s justiciable, primarily, because they are practical and realisable and provision of these rights to Person A is likely to mean infringement on the rights of Person B. However, most social and economic rights are concerned with the provision of resources, and since resources are scarce, it is troublesome to ensure their provision to all people at all times. Furthermore, these above mentioned rights are vague to a certain degree (Dickinson, et al., 2012, p. 288). For example, terms like the “health”, “adequate standard of living”, “education” and others are not only subjective, but they are relative in space and time. On the other hand, many civil and political rights, by their nature, are specific and not highly subjective in their interpretation. Many critics argue economic, social and cultural rights are justiciable because they are no different from political and civil rights, and since political and civil rights are justiciable then so are the economic, social and cultural rights (Young, 2012, p. 113). As mentioned earlier, this is not the case. In addition, civil and political rights, essentially, create negative duties on government or create government restraint. On the other hand, social, economic and cultural rights demand government action and are positive duties (Blau & Frezzo, 2011, p. 214). Moreover, in order to solve problems of poverty, unemployment, economic growth and others, governments create long term economic plans with the view of attain sustainable growth and development (Baderin & Ssenyonjo, 2010, p. 79). There are always many quick fixes and solutions to the social and economic problems of the masses, but policymakers strive for solutions that are long term and sustainable. Many capitalistic or capitalist leaning countries strongly believe that government should intervene within markets because free markets can allocate resources in the most efficient and effective manner (Hoffmann-Holland, 2009, p. 214). Consider the intervention of the federal government in the market during the Great Depression and the creation of Fair Labour Standards Act of 1938, which introduced a minimum wage for employees and employers were bound to ensure that they were paying above this wage. The government intervened to set a floor in wages. However, after the minimum wage act, unemployment increased because many of the uneducated or less educated and inexperience people, whose wages according to the supply and demand of the labour were below the minimum wage, were not getting jobs (Joseph, 2010, p. 452). Rather than paying them what they deserve, employers either increased the job responsibilities of their current employees or hired illegal immigrants who would perform those jobs at the market wages. Since African Americans due to many factors were behind in getting a good education, they suffered the most with the minimum wage since unemployment amongst African American rose drastically. Even worse, if employers were allowed to employ with the market wages, even though they were less than the minimum wage, in the process of their employment, they would gain crucial job skills and experience which would help in excelling within their career. However, with minimum wage act, which was an intervention in the market from the side of the government might have increased the income of a few but backfired in the long-term (Auweraert, 2002, p. 55; Schutter, 2010, p. 173). The point here is social and economic policies might take years or even decades to produce desirable and sustainable results during which the people might believe that they are being deprived of their rights. If they are able to convince the courts, it is highly likely that it would lead to a clash of institutions where courts would dictate the process of social and economic policymaking (Dickinson, et al., 2012, p. 288). Many experts argue that when courts intervene to restore social, economic and cultural rights, they are actually doing the same to ensure that the rights of minority groups are protected against the majority groups. Since under the system of democracy, most governments have a mandate to fulfil the wishes of the majority, it is likely that in the process of the same, they might infringe the rights of the minority or special groups (Keller & Ulfstein, 2012, p. 249; Hoffmann-Holland, 2009, p. 214). Therefore, when courts intervene, they protect the rights of the minority whose rights might be in danger. However, the fact is that, in reality, there are no rights of any special groups. In fact, there are no rights that generate from associating oneself with any special group. There are general “rights of man”, which are equal for every individual. For example, if a special group has right to education, health and employment then it would mean that others are not deprived of the same or they are coerced into providing them with health, education and employment (Blau & Frezzo, 2011, p. 214). Steiner et al (2008) highlight the central flaw in the argument for social and economic rights as pointed by Hayek. The argument is that an injustice can only be caused by an intentional act. This is the reason why that the sufferings caused by genetic factors, weather and other factors that are beyond the human control are not regarded as “injustices”. Furthermore, they may cause suffering but they do not “infringe” the right of any person. In a free market, individuals buy and sell between themselves, intentionally, therefore, the only right and wrong and infringement of rights can be caused between those two parties. However, the aggregate effects of these individual transactions such as distribution of wealth, income and resources are not intended (Steiner et al, 2008, p. 288). Consider the problems faced in the implementation of the First Optional Covenant to the International Covenant on Civil and Political Rights. Many different states have expressed their reservations on the application of the optional protocol (Slomanson, 2010, p. 118). For example, Venezuela believes that the Human Rights Committee is not competent or even authorised to hear any possible offences regarding trails for criminals that have committed offences against the state. Guyana and Trinidad and Tobago believe that although, the covenant of civil and political rights, abolishes death penalty, the Human Rights Committee is not authorised to hear complaints regarding their use of the death penalty. States such as Germany and Turkey have rejected the scope of Article 26 of the covenant, which broadens the scope of ICCPR. Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, Norway, Poland, Russia, Spain, Sri Lanka, Sweden, Turkey have raised their reservations regarding the ability of Human Rights Committee to hear complaints that have already been considered, despite being accepted or rejected, under any other international complaint procedure (Coomans, 2006, p. 250). This is because the Human Rights Committee does not have any superiority over other international human rights and judicial bodies. Allowing grieved parties to access all international platforms is likely to result in wastage of time and resources. Many other countries have also argued that the HRC should only listen to complaints that emerged after these countries ratified the ICCPR and the First Optional Protocol. Furthermore, Austria believes that any complaint that has already been examined by the European Commission on Human Rights is beyond the legal jurisdiction of ICCPR (Blau & Frezzo, 2011, p. 214). The prime reason behind presenting these issues in some detail was to highlight the fact that optional protocols are inherently problematic in nature because different states may disagree on several issues and interpret the scope and legality of several articles in dissimilar ways (Slomanson, 2010, p. 118). It is almost impossible to create a consensus over all or even most aspects of legality, scope, implementation of the human rights amongst different member state as it is manifested in the case of the First Optional Protocol. It is highly unlikely that the Optional Protocol for ICESCR would follow a different pattern (Young, 2012, p. 113). As mentioned earlier that even after three years, the optional protocol has not been able to go into effect because only eight members have ratified it and out of more than 190 sovereign states, only 41 has become its signatories. It is just another manifestation of the fact that many states and countries are realising the fact is they increase the scope of the international courts and make these rights justiciable, they would be inviting more interference and intervention in the state policymaking (Sepulveda, et al., 2003, p. 67). Conclusion The obvious question here is that if these social, economic and cultural rights are really not justiciable then what led to the courts to believe that they could take the matter in their own hands. One can understand the same from the perspective of those whose rights are at stake through the famous story told to children “The Little Engine That Could”. Passengers of a broken train seek help from various train engines to get them over a mountain. When they ask the most powerful engine to help them, he responds, “I could, if I would but I won’t”. They seek help from a moderately powerful engine who responds, “I would, if I could, but I can’t”. Finally, the seek help from a little engine who understands grave importance and seriousness of the task and even though, it cannot, it responds “I Think I Can” (Blau & Frezzo, 2011, p. 214). The first train engine which said, “I could, if I would, but I won’t”, represents the “legitimacy concern” of courts who believe that although, if they were to engage in the provision of social and economic rights, they have the authority to implement their decisions, but doing the same would not be legitimate and ethical use of judicial power. The second train engine which said, “I would, if I could, but I can’t”, represents the “competency concern” of the courts. In the past, even when some courts believed that they could interfere in the social and economic policy, they realised that it would be institutional violation, and they “cannot” engage in such practices. The last little engine presents just the perfect picture for the international and domestic courts that have decided to take matters into their own hands. They are well aware of the legitimacy and competency concern, but looking at the seriousness of the issues at stake, they have decided to create their own competencies and legitimacies to deal with the issue (Serrano & Popovski, 2010, p. 146). Therefore, the paper argues that the courts might be competent to intervene in matters concerning civil and political rights, but the same is not true for social and economic rights because of their entirely nature (Slomanson, 2010, p. 118). The optional protocol to the social, economic and political rights might appear as a victory to human rights activists, but in reality, it is likely to make matters complicated. Fortunately, it appears that states realise and understand these complexities and complications which is a reason why he optional protocol has only been ratified by eight states and signed by 41 states even after more than three years (Keller & Ulfstein, 2012, p. 249). References Auweraert, P. V. D. 2002. Social, Economic and Cultural Rights: An Appraisal of Current European and Cultural Rights. New Delhi: Maklu. Baderin, M. A., & Ssenyonjo, M. 2010. International Human Rights Law: Six Decades after the Udhr and Beyond. New York: Ashgate Publishing, Ltd. Blau, J., & Frezzo, M. 2011. Sociology and Human Rights: A Bill of Rights for the Twenty-First Century. New York: Pine Forge Press. Coomans, F. 2006. Justiciability of Economic and Social Rights: Experiences from Domestic Systems. 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M., Magdalena, M., & Carmona, S. 2003. The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights. London: Intersentia. Serrano, M., & Popovski, M. 2010. Human Rights Regimes in the Americas. New York: Brookings Inst Press. Slomanson, W. R. 2010. Fundamental Perspectives on International Law. New York: Cengage Learning. Steiner, H. J., Alston, P., & Goodman, R. 2008. International Human Rights in Context: Law, Politics, Morals. Oxford University Press. United Nations. 2010. Committee on Economic Social and Cultural Rights: Report on the Forty Second and Forty Third Sessions. New York: United Nations Publications. Young, K. G. 2012. Constituting Economic and Social Rights. Oxford: Oxford University Press. Read More