Constitutional Socio-Economic Rights and International Law: 'You are Not Alone'

The second oratio was a keynote speech delivered by Torsten Stein, the Director of the Institute of European Studies and holder of the chair for European law and European Public Law at Saarland University, Germany. He delivered his speech during November 2012 at the 3rd Human Rights Indaba on The Role of International Law in Understanding and Applying the Socio-economic Rights in South Africa's Bill of Rights, which was held by the Faculty of Law (NWU, Potchefstroom Campus) in collaboration with the Konrad-Adenauer Foundation. He shared some thoughts about the nature, development and implementation of socio-economic rights within an international and European setting. The next nine articles make up the bulk of this issue.

on two further international treaties was started immediately, 1 finally becoming what we know as the International Covenant on Civil and Political Rights (ICCPR) 2 and the International Covenant on Economic, Social and Cultural Rights (ICESCR). 3 These two treaties of international law involve different mechanisms of legal enforcement. In the case of the Covenant on Economic, Social and Cultural Rights, the ability to enforce its provisions became part of the conflict between "East" and "West" in what were some of the first chills of the "Cold War". Western countries believed at the time that the establishment of this new treaty would mean that policy choices would be made on an international stage, and would have to be taken in a democratic manner on the national level. There was a fear of a loss of autonomy. 4 On the other hand, socialist countries tried to emphasise the importance and equality of this new set of human rights, seemingly promoting them in a stronger way. The reality was, as we all know, a bit different.  While this may seem to be a rather long time span at first glance, it should also be considered that the United States of America also has not ratified the covenant yet, despite its initial commitment to do so stemming on the 5 th of October 1977. 12 In other words, one of the leading promoters of Human Rights on the world stage has not completed the ratification of the ICESCR for more than 35 years -and still counting. One could therefore also state that it might take the US at least twice as long as South Africa to put the provisions of the covenant into force, if it is ever going to do so.
When we now look to Europe, we once more discover that the protection of human rights on my home continent is mainly a matter of regional cooperation. In the light of the experiences during World War II, the doctrine was developed that the effective protection of human rights can be achieved only through the involvement of strong international organizations with the states monitoring each other permanently. 13 As a result, the protection of human rights has become a central building-block for the modern European Identity. This is manifested mainly in the creation of two international treaties for the region, the European Convention of Human Rights of 1950 being the more salient one. 14 But soon it was recognised that this legal framework was not sufficient for the establishment and protection of socio-economic rights. To overcome this, the protection, free movement and non-discrimination. 16 However, the original text of the charter left the signatory states a very wide margin of appreciation, allowing them initially to "pick and choose" a number of socio-economic rights they would grant their nationals. In order to check if the treaty parties were living up to their obligations, a reporting system was set up. 17 But in contrast to the European Charter of Human Rights, no entitlements for complaints in the case of an infringement were established for individuals or states.
The initially loose framework of protection was later "upgraded" and tightened by adding additional protocols. And finally, a total revision of the treaty in the year 1996 followed. 18 One of the biggest improvements can be seen in including the possibility for collective complaints, given to trade unions or NGOs for example. 19 However, the basic pattern for the commitment to social human rights remained.
The most recent step in the attempt to improve the protection of social rights in While it seems to be rather easy for states to accept them in general or to commit to them as goals of their policies, the crucial question is how exactly to define the nature of the states parties' obligations. The Committee on Economic, Cultural and Social Rights, which consists of 18 independent experts on the subject and which was set up by the Economic and Social Council of the United Nations in 1985, 22 also recognised this problem and tried to address it in several statements. The main task of the committee is to monitor the nations' implementation of the provisions laid down in the International Covenant on Economic and Social Rights of the United Nations. 23 One of their comments is: … while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant. 24 The committee has made it clear that socio-economic rights are not to be granted as such by the parties. However, mechanisms have to be set into place which eventually will have to be improved over time and which finally create a state where socio-economic rights are being enjoyed by all the citizens of a nation, without discrimination. 25 The "tools" to achieve this are legislation, an effective system of judicial rectification, and so-called other measures of an "administrative, financial, educational or social" 26 nature. 27 The crucial provision of the Covenant itself can be found in Article 2 paragraph 1 of the ICESCR. The words "to take steps … to the maximum of its available resources" 28 in particular need further clarification, which the committee tried to deliver in a statement given in the year 2007. 29 Basically, the experts find that all steps have to be taken by a nation, which are "adequate" 30 or "reasonable" 31 on the one hand, while at the same time not exceeding the level of available resources on the other. 32 Here the committee tries to name a couple of issues which should be considered in detail, but, I should like to avoid getting too technical at this point.
Allow me to sum up the rationale by saying that each signatory should definitely live up to its commitments, but the bar has been set lower for those parties whose resources are scarce. It doesn't make sense, for instance, to be granting each person the entitlement to be living in a freshly renovated apartment when an armed conflict is currently taking place inside a country, threatening people's health or even lives, and potentially destroying a nation as such.
Another issue which has recently gained increased importance around the world as well as in South Africa is the responsibility of the corporate sector in regard to the establishment of economic, social and cultural rights. 33 From the perspective of International Law it is undoubtedly clear that the signatories also have to live up to their given promises in that context. This has to be expressed in a three-fold manner by respecting, protecting and fulfilling the establishment of socio-economic rights. 34 Despite the growing role and power of non-State actors in the sector, the duties imposed by the ICESCR upon the Member States remain in place. Therefore, signatory states are obliged to take care of the establishment of a framework which allows the development and strengthening of socio-economic rights. Unfortunately, though, the "lack of arm's length" problematic describing the paralysis of legal enforcement often experienced when States attempt to enforce legal provisions against big international corporations seems to be a growing concern in the beginning of the 21 st century. "Money makes the world go round" -in a globalised economy more than ever before.
In effect and as we all know, multi-national companies sometimes become more powerful than national legislators and their executive branches. This is clearly threatening peoples' socio-economic rights all around the world. Let me just reference briefly the very well-known situation of the Ogoni people in Nigeria, whose land has been severely damaged over the last decades by the activities of the international oil industry. 35 These large corporations still deny their responsibilities, 36 highlighting once more the importance of an effective enforcement of socioeconomic rights' provisions.
Considering the issue of enforceability as well as the decision by the South African government referred to above to ratify the UN covenant on socio-economic rights in detail, I should now like to share a few thoughts on the possible impacts of the new situation.
Analysing the principles of the establishment and enforcement of socio-economic rights in International Law and comparing them with the guidelines given by the South African Constitutional Court, I can repeat that YOU ARE NOT ALONE.
What impresses a European lawyer about the South African Constitution is its comprehensive approach to granting enforceable human rights, regardless of whether they are first, second or third generation rights. This comprehensiveness is also widely recognised in the academic literature. 37 It makes South Africa stand out 35 See UNEP 2011 http://bit.ly/11gl2vf. The report claims that it may take up to thirty years to restore the conditions in the harmed region.

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20 / 536 on its home continent, with such strong enforceability being found in scarcely any other nation in Africa. 38 Looking at the world, a similar approach could perhaps be found in the Inter-American system of human rights protection. But in terms of the effectiveness of the legal remedies offered by the system, one would arguably have to recognise that the possibilities of the American mechanism are limited. 39 As already described for Europe, Western systems tend to distinguish pretty clearly between the different rights' categories, with every nation being very cautious when it comes to legally binding itself to granting socio-economic rights.
As I have already said, the Committee on Economic, Cultural and Social Rights, which is supervising the signatories compliance with the United Nation's ICESCR, has in its history tried to define the key elements of what granting socio-economic rights means in detail. It is very interesting, though, that the South African constitutional court emphasises similar principles in some of its key rulings on socio-economic rights.
In the case Soobramoney v the Minister of Health (Kwazulu-Natal), 40 for instance, the court discussed what section 27 of the Constitution, which obliges the Republic of South Africa to take care of its citizens when they are in need of medical treatment due to the existence of an emergency, actually means. It found that if the state is not capable of providing appropriate medical treatment due to its lack of resources, even a life-threatening permanent disease, which required dialysis in the specific case, could be denied by the public authorities. 41 Nevertheless, this does not mean that the state is not obliged to put a system into place which is capable of delivering the necessary therapies. From an international perspective, the interesting thing about this decision, which led to the reinforcement of housing programmes in the region concerned, 45 was the fact that the institutional checks and balances seemed to be working at the time on a national level, which cannot be taken for granted in human rights issues in any nation state. As I already said, the European experience especially shows that fundamental rights are best protected in networks of international surveillance.
The Constitutional Court, however, interpreted section 26 of the South African Constitution to the conclusion that South Africa had failed to fulfil its responsibility of what the UN's Committee on Economic, Cultural and Social Rights would describe as "to take steps … to the maximum of its available resources" 46 . As you see, the wording of the international body can easily be used to justify the decision of the national court. Ladies and gentlemen, In this globalised world we live in, which is getting smaller in some sense every day, it is crucial that our societies should take more care of each other than we did in the past. In our age, protecting human dignity and creating the opportunities for a good life are tasks not only for national governments but for the entire world community.
Europe and South Africa share a long history. This means that we understand each other's roots, situations and aspirations. But it also means that we understand the challenges each of us is facing. If we use this knowledge about each other and transform it into sincere support for the other's needs, both sides will win. Socioeconomic rights will win.