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  • Print publication year: 2016
  • Online publication date: May 2018

9 - Economic, social and cultural rights

Summary

INTRODUCTION

Economic, social and cultural (ESC) rights include a number of entitlements, such as the right to work and the enjoyment of just and favourable conditions of work; the right to form and join trade unions; the right to social security; the protection of the family, mothers and children; the right to an adequate standard of living, which includes adequate food, clothing and housing and continuous improvement of living conditions; the right to the highest attainable standard of mental health; the right to education; and the right to participate in cultural life and enjoy the benefits of scientific progress. All these are protected under the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Several differences are traditionally cited to distinguish the disparate legal nature of ESC and civil and political rights. Whereas states are obliged to implement the latter immediately, most ESC rights are subject to progressive realisation under the terms of the ICESCR. Moreover, because civil and political rights are considered negative obligations and thus generally only require entrenchment in the legal order of states, they are justiciable and enforceable before the courts. On the other hand, several states suggest that ESC rights are not justiciable, not only because they are not immediately realisable but also because their implementation requires funds and resources which parties to the ICESCR may not possess. Thus, resource scarcity is a significant impediment to the fulfilment of ESC rights, as well as a justification for those states that are unwilling to invest money in social welfare services, especially towards the vulnerable, marginalised and the indigent. These issues will be explored in detail in this chapter.

It will also be demonstrated that ESC rights are by no means the poor relative of civil and political rights. In fact, many of the latter are meaningless without ESC rights. By way of illustration, the right to life is to some degree dependent on adequate food and water, decent housing and health care. Equally, a decent education is a good platform for an informed exercise of the freedom of expression. It will be shown that ESC rights are not vague obligations but to a large degree are now susceptible to qualitative and quantitative measurement.

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