Jurisprudential basis and historiography of EESCR

In the genealogy of human rights discourse, rights are grouped into three broad categories. Firstly, we have first generation rights which are essentially civil and political rights, then second generation rights being Economic, Social and Cultural Rights (ESCR, and lastly third generation rights also called group or collective rights a category containing a mixture of recent rights such as rights to a health, environment, and development. This classification of rights does not in any way imply any fundamental differences in terms of the function and objectives behind the protection of human rights, it rather being the sequel of political process that took place when the world recognised the need to legally protect human rights. While civil and political rights have their origins in the struggle against feudalism and the revolutions of the 18th century, ESCRs were born out of socialism and welfarism of the Eastern Block of countries after the Second World War. At the international level, therefore, we have three key international human rights instruments that are popularly regarded as constituting the international bill of rights. These are the United Nations Universal Declaration of Human Rights of 1948; the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) both adopted in 1966.

While there is little controversy on the objectives, content, and scope of civil and political rights, considerable debate persists regarding the nature, scope and content of ESCRs. Even more controversial is whether there is an internationally recognised environmental right. Despite these doctrinal and sometimes academic distinctions the world acknowledged in 1993 that all human rights are “universal, indivisible and interdependent and interrelated”. However, some believe that the 1993 Vienna Declaration is a fig leaf masking the persistence of deep-seated disagreement over true legal nature of ESCRs. Steiner et al highlight this long-standing disagreement and point out that there are broadly two extreme views, namely;

At one extreme lies the view that these rights [ESCR] are superior to civil and political rights in terms of an appropriate value hierarchy and in chronological terms. Of what use is the right to free speech to those who are starving and illiterate? The homeless cannot register to vote; the illiterate cannot fully exercise their political rights. At the other extreme we find the view that economic and social rights (‘ESR’) do not constitute rights (as properly understood) at all. Treating them as rights undermines the enjoyment of individual freedom, distorts the functioning of free markets by justifying large scale state intervention in the economy, and provides an excuse to downgrade the importance of civil and political rights.

Nothing could be further from the other variables having been thrown into the discourse. Steiner adds that the whole discourse has been tainted by “a lot of ideological baggage” that sees it now spilling over into the North –South divide, with some developing countries arguing that they should not be held to the same standards as developed countries and in fact that the former must meet certain conditions if they expect countries of the South to uphold human rights standards.

While the above debate rages on it is quite clear that the majority of countries, both developed and developing, have taken a middle of the road approach which takes on the view expressed by the Vienna Conference in 1993 that all human rights must be treated equally and be given the same attention in municipal or domestic legal systems. To this end a number of countries including those in Southern Africa have constitutionally entrenched ESCR as well as environmental rights in their constitutions.These rights include the rights to water, food, shelter or housing, health care services, access to jobs, education, culture, language and religion and in some jurisdictions environmental rights.

The theoretical consensus on what are ESCR and the mere fact of their enshrinement in constitutions does not necessarily mean that the difficulties noted above have disappeared. Thus, Currie and de Waal correctly argue that one of the greatest challenges that remain is to find effective mechanisms to enforce ESCR. Yes, courts can issue decisions but what is to be done if the government fails to comply with such judgements due to, for instance, limited resources and other competing priorities? How far can courts go in enforcing ESCRs? South Africa has become a trend setter in this regard with its impressive array of ESCR in the 1996 Constitution and a jurisprudence growing around these rights. However, the persistence of poverty is a stark reminder that we are still far away from realizing ESCR for all. At what level should ESCR be protected? Is it sufficient if they are provided for in general legislation or must they be constitutionalized?

The Relationship between ESCRs and Environmental Rights

A 1994 UN Draft Declaration on Principles of Human Rights and the Environment has never passed the stage of a draft since it was drafted. Any progress that has been made in realising an international environmental right has been made in the realm of soft law declarations and instruments that provide little legal ammunition at the international level. Be that as it may, these soft law instruments have proved to be unshakeable guides to developments at the domestic level. Many countries have surpassed the obligation of good faith and proceeded to give legal context and force to environmental rights in their constitutions and framework environmental laws.

It has been argued that the concept of a third generation of human rights per se brings confusion to the whole field of human rights. Their perceived makes inevitable problems with implementation and enforcement, problems that still bedevil ESCRs. Some have also argued that the current scheme of rights, that is, first generation civil and political rights can be extended to protect the environment without necessarily creating a new distinct environmental right.

 Indeed, this has been done in some jurisdictions, but should we put the judiciary in this unenviable position of constitutional interpretation when we can do better by putting clear environmental rights provision in our constitutions?

The basis upon which various scholars have rested their dislike of environmental rights cannot clearly be reduced to a single issue. The major problem, however, is essentially substantive as well as being definitional and contextual. Should the right be substantive or procedural? Should it be a right given to inanimate objects or to human beings – should it be anthropocentric or ecological? The experience of South Africa clearly shows that these fears surrounding environmental rights are largely ill-founded and unsubstantiated. Modern constitutions have bills of rights; and some have principles of government, or policy directives and other aspirational norms. It is compelling to argue that the environment must be given a place in the grand norm. If a nation cannot provide for the environment in a bill of rights, then at least it should find a place in national principles or directives of state policy to guide the government in managing natural resources. The former is the better approach as the latter can be subjected to strict limitations. For instance, S 7 (2) of the 1997 Constitution of the Republic of Tanzania, contains the following limitation on the Fundamental Objectives and Directive Principles of State Policy:

[t]he provisions of this Chapter are not enforceable by any court. No court shall be competent to determine the question whether or not any action or omission by any person or any court, or any law or judgement complies with the provisions of this chapter.

In summary therefore, the first most important point is that inclusion of an environment right places the environment within the proper legal framework and shows the commitment of a country to sustainable development. The old conception of viewing conservation as anathema to development has since been disproved by the rise of the concept of sustainable development, and as Ncube rightly pointed out;

[the] aim is not to limit or stifle development but to ensure that development projects incorporate environmental criteria or environmental impact assessment with a view to ensuring that development is carried out within the framework which stresses the importance of environmental factors…

Article drawn from Professor Tumai Murombo’s article on the Conceptual Framework for Implementation & Enforcement of Environmental, Economic,Social and Cultural Rights in Southern Africa:Challenges and Opportunities
http://www.zela.org/download/securing-environmental-economic-social-and-cultural-rights-in-the-natural-resources-sector-2/