Are Socio-economic rights justiciable?

One should take note of Cranston's test for it places at its heart the central importance of justiciabiltiy. Though it is specifically mentioned one could argue that every aspect of Cranston's 'tests' has a footing in justiciability. If a right was seen to exist while at the same time lacking in terms of universality, or if it was unclear who should be responsible for redress then the right could not be justiciable.  For whilst justiciability concerns us fundamentally with whether the right can be formulated in terms that make them amenable to adjudication in a court of law, one must also be aware that of equal importance is the processes whereby such adjudication is rendered possible and carried forward.

It is claimed that socio-economic rights confuse too often that which is fundamental with that which is merely desirable, or that which is specific to advanced economies (holidays with pay, free higher education, the right of everyone to the continuous improvement of living conditions). But this surely cannot include all economic and social rights? For who would not perceive as fundamental such rights as to healthcare or to education. Indeed, one could continue that those critics that dismiss socio-economic rights as merely desirable are taking a view that is so far rooted in the developed world that the underdeveloped world beyond seems to play no part in the reality to which they subscribe.

It must be easy to perceive socio-economic rights as less than fundamental if they are not a pressing concern for a society as a whole, and this forms the basis for the counter argument that as soon as such socio-economic rights are threatened, as soon as people do not have adequate food or housing or infant mortality doubles or triples with no measure of controlling it that is when such rights become fundamental. As rights are traditionally perceived in this 'negative' manner that one only need a right as a protection when 'the status quo threatens my particular existence' if social economic rights are not an issue in the developed countries then sadly this has a large effect upon the undeveloped ones. For, for as long as the citizens of America or the subjects of the UK do not have socio-economic traumas, and further to this that it is beyond the comprehension of society that such traumas would exist (domestically) then the worth in legislation covering such potential social economic disasters will be unlikely to be fully appreciated. A detached mindset is applied it and becomes merely desirable that everyone in the world should have adequate food, rather than a fundamental right.  

Even if one accepts that at least some socio-economic rights are fundamental one then need contend with more direct justiciability arguments. To what extent can such rights be defined in justiciable form? At what level can the deprivation of nutrition, sanitation or health care be sufficient to trigger legal redress? Of course this underlines the most significant of all objections to the justiiciability of socio-economic rights. One need only highlight the massive lack of continuity between states with regard to what constitutes a particular right. Since 'ought'  entails 'can', since to have an assignable duty entails a realistic possibility of being able to fulfil it, can the positive requirements of the Covenant be reasonably expected of impoverished and less than fully autonomous regimes? While we may reasonably require them to refrain from torturing their citizens, it is not obvious we can expect them all to guarantee them all a livelihood, adequate accommodation and a healthy environment. Moreover for them to do so, it is contended by such neo liberal theorists as Robert Nozick, would require a huge paternalist and bureaucratic apparatus and a corresponding extension of compulsory taxation both of which would interfere with another basic right, the right to freedom.        

These obstacles to the justiciability of socio-economic rights do not conclude the argument. Should one turn to the actual incorporation of socio-economic rights into national legislation one may find that there is much more to explore.

Writing prior to the South African constitution being drafted Patrick Macklem was greatly concerned by developments in South Africa, which he claims ‘signal the potential establishment of a constitutional democracy upon the ashes of apartheid’. Part of this concern was directed toward the inclusion in the constitution of ‘certain social rights’. Now, as Macklem would be pleased to know, South Africa is one of the very few countries to have done this; incorporated within the South African Constitution are rights and freedoms of a distinctly socio-economic nature such as provisions made for the environment, food, water and healthcare.  These inclusions were probably made, in line with Macklem’s argument, in order to ensure the promotion of democratic constitutionalism for without those basic resources citizens would not be able to participate effectively in the democratic process.

Prior to the ratification of South African Constitution by the Constitutional Court the justiciability of socio-economic rights was an area of great controversy, this was clarified to a certain extent by the judgement of the Constitutional Court when awarding the certificate of ratification to the constitution. Here, it was held that the socio-economic rights included in the South African Bill of Rights would impose upon a court nothing different from that which it should expect to have conferred upon it. The judgement concludes with the words 'we are of the view that these rights are to some extent justiciable…at the very minimum socio-economic rights can be negatively protected from improper invasion'.

This would seem to indicate that the South African Constitutional Court intended some, if not all, socio-economic rights to be justiciable and the extent of this should be determined on an ad hoc basis by the courts. Therefore of particular significance is how the courts interpreted any claims to socio-economic rights and the property rights found in Section 26 of the South African Constitution concerning property were quite recently in dispute, in the case 'Government of the Republic of South Africa v. Grootboom'.

Here, it was found that the failure of the government's nation-wide housing programme to provide relief for those in desperate need fell short of the obligation imposed upon it by Section 26 of the Constitution.  Whereas previous theorist have sought to claim that impositions such as these on governments are easily repelled by the use of the 'prospective right' argument in this case it was cast out. States and theorists alike often refer to rights as 'prospective' meaning that although there might not be a current remedy available to them in their grievance the right does still exist. The state's obligation to help is simply negated if immediate action is not possible in anything other than the shape of long term action and there are provisions to facilitate that action. In this case the court dismissed the medium and long term housing measures securing housing and concentrated on its failure to take immediate steps in the short term with particular reference to the reasonableness clause in Section 26.

The significance of this judgement was the closing of the gap, in jurisprudential terms, between political and civil rights and socio-economic rights. The judgement referred to 'the foundational values of the Constitution' those of 'human dignity, freedom and equality' cannot exist if other rights such as' shelter, food and clothing' are denied. Through this the political and civil became intertwined with the socio-economic, reliant on an interdependency that is essentially based on the guarantee of human dignity. While one might well be keen to state the importance of this judgement one should not overstate its importance and remember that this case does not exist in isolation.

The Soobramoney case is one considered by many to be a very unhappy case. The court in this case refused to allow a challenge by an unemployed man against a hospital that refused him medical treatment, the refusal being based upon a shortage of medical resources. Importantly, the court held that the state's obligations extended only to its available resources and so when the resources are limited and the appellant fails the requisite criteria for treatment there is no action available to the court.

This is vastly unsatisfactory in light of Grootboom for it goes beyond not recognising socio-economic rights, as far as one can interpret the judgement it would seem that the court is saying that no right, whether political or economic based, can be guaranteed by the state as every right is dependant on resources available. So, I disagree with those theorists who use this case as a counter to Grootboom. Why this case is unsatisfactory is for its failure, not in jurisprudential terms, but in humanitarian terms and it demonstrates a tendency of South African courts to be somewhat narrow minded. What is remarkably dubious is the use of the term 'available resources' in which critics of socio-economic rights would readily see a demonstration of the lack of willingness on the part of courts to enforce state obligations in 'budgetary areas'. However, is there any indication that this particular decision was made because the right concerned was a socio-economic one? There is no mention of this rather the judgement is concerned with there being limited available resources and so no obligation to be enforced. This then could surely be interpreted as a statement by the South African court that should the police have limited 'available resources' with which to prevent crime then the courts would not make criminal provisions. This seems to formulate the unsatisfactory maxim of whether an action is wrong or not depends not upon whether or not it is actually wrong but whether there are sufficient provisions to stop it.

Whilst one may highlight how Grootboom demonstrates that socio-economic rights are indeed justiciable and further to this it advocates that for any future drafting of a bill of rights socio-economic rights might be a necessary inclusion (particularly if the document is looking to procure an acceptable standard of human dignity) the doubts raised by the Soobramoney judgement cannot be ignored.

            

South Africa therefore sends a mixed message to the world. The question of how socio-economic rights will be applied by the courts will depend upon whether Grootboom is considered the exception or the rule in the courts future dealings with socio-economic rights violations. One may contrast South Africa with the rest of the world in that it is one of the few states actively seeking to break the disparity of attention given to political and civil rights as opposed to socio-economic rights. As it is unlikely that states, particularly in the developed Western world, are actively unwilling to provide social and economic provisions for their citizens we must ask why so few have adopted such rights into their legislative programmes. The UK, as recently as 1998, passed human rights legislation that completely ignored socio-economic rights in any form. This could have been used as an excellent opportunity to redress the 'unbalanced constitution', as described by Ewing, whereby there is a distinct bias shown toward political and civil rights as opposed to the more socially and economically based ones pervading every aspect of the UK Constitution. This must be down to some level of distrust in socio-economic rights on part of government , a mistrust that seems common throughout the governments of the world.    

One may insist that human rights most urgently need asserting and defending, both in theory and in practice, where they are most denied. Indeed, the language of rights only makes sense at all in a context where basic requirements are vulnerable to standard threats; can one imagine a right to clean air in an pre-industrial society. The Human Rights agenda does have an aspirational and promotional dimension, which is of course wholly necessary, but it does not constitute mere rhetoric.

So, to express economic and social requirements in the language of human rights does more than just emphasise the obligations of governments and international agencies and their respective publics. Socio-economic rights can be said to have justiciability but that is not to say that one should not consider them not having it. The only clear answer can be determined after a line of case law in a variety of countries whereby one can determine how effectively they can be implemented. The trouble is that governments are unlikely to want to take the initial risk of implementing 'untested' legislation for, as mentioned earlier, in democracies the government must maintain the confidence of the electorate and bad legislation can be very expensive in electoral terms.    

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