Are Human Rights Claims Mechanisms an adequate Social Justice tool to Address Inequality?

Oxford Political Review

|

Introduction: 

Equality, as a concept, is not necessarily complex or abstract. It is grounded in the idea that ‘everyone counts as one and none is more than one’.1 Extrapolating from this idea, inequality exists where needs of some are disproportionately emphasised over others. This could be a result of numerous factors.2 It is likely that one such factor may be poverty. Concerned more with their survival, hinged on a lack of bare necessities (in many cases) the global poor are often found to lack the will to advocate for or even invoke their rights and abilities to meaningfully engage in society and the world around them.3 This trend suggests that human rights are mostly accessed by the middle-class and rich disproportionately more than the poor.4  

The objective of the human rights regime was to create equal access to an adequate standard of living for all.5 Human rights are meant to be claims that the weak are able to advance to hold the powerful accountable.6 Where their needs are overlooked, the human rights regime is meant to give the poor the ability to demand such resources as necessary to access adequate standards of living. However, the global poor are systematically confronted by challenges that prevent them from meaningfully accessing their rights, and as such, they live in a cycle of exclusion, discrimination, material deprivation which all perpetuate one another and enforce forms of inequality.7 Lack of access to the invocation of their rights, has significantly limited their capabilities.8 It is argued that existing structures of global order are largely to blame for this inequality which in turn perpetuates systematic and disproportionate violation of human rights.9  

This article will predominantly focus on the access to Economic, Social and Cultural Rights,10 owing to the fact that ESCR addresses such rights through a lens of inequality through the reduction of poverty by obliging states to build mechanisms and relationships to achieve that effect.1. The article will first analyse the varying definitions of poverty in relation to human rights. The article will then discuss the historical reluctance of different actors to adopt a human rights lens to address poverty and inequality. Finally, upon discussing the feasibility of legal enforcements of such rights, the article will prove that while inadequacies do exist in the system, there is still material benefits that accrue from the existing framework. In particular, that these benefits, through human rights claims, provide some mechanism to address inequality at broad through the reduction of poverty.  

Defining Poverty in relation to human rights: 

Many have attempted to ground a vision of poverty for a long time. It is argued that the work towards poverty reduction and protection of human rights has been the same.12 There are significant overlaps in the objectives of both although they are conceptually distinct. However, the mechanism employed does have intersections.13 Poverty, in relation to human rights, can be broadly categorised into three distinct forms; income poverty, capability poverty and social exclusion.  

Income Poverty is viewed as the lack of income or purchasing power and is further categorised into three forms.14 The world bank uses this paradigm by measuring income to create a global minimum threshold.15 Typically, this form of poverty is further categorised into Extreme, Moderate and Relative poverty.16  

Capability poverty concerns itself more with well-being as opposed to income. This form recognises that deprivations are connected to the systematic deprivation to other goods, services and resources necessary for human survival and development as well as interpersonal and contextual variables.17 This is hinged on the idea that poverty deprives the individual of capabilities to enjoy their rights and further them.18 So, arguably, if rights are extended to them, poverty is reduced. 

Social Exclusion is the conceptualisation of poverty where individuals are kept out of mainstream society and are thus meaningfully limited in their participation.19 This can be caused by numerous reasons which overlap with other human rights violations, (e.g. discrimination, unemployment, etc.).  

One of the nexuses between human rights and poverty is that human rights have to do with the standardisation of a bare minimum provision of resources and capabilities necessary to allow human agency to pursue goals.20 All forms of poverty discussed, largely display a power disparity between those subjected to it and those who live outside of such definitions. The existence of such conditions and its subsequent result of unequal access speaks volumes of the failures of the existing human rights regime. Effectively, poverty can be characterised as a limitation on rights by circumstance.21 

Human Rights and Social Justice: 

The pursuit of social justice and the movement itself is mostly geared towards a fight against existing power structures and inequality.22 While the rhetoric of human rights tends to be powerful, invoking notions of the struggle for social justice and inequality, its emphasis is more geared towards legally binding obligations of states and other actors, based on decided and enforceable human rights.23 The human rights regime approach to this relies on accountability structures using existing legal framework, based on structural norms of existing enforceable rights mechanisms. In effect, until concerned actors choose to be bound by such legal framework, those living within such jurisdictions are vastly limited in their ability to invoke such rights.  

General Reluctance to Adapt Economic, Social and Cultural Rights: 

A major reason as to why Civil and Political Rights24 are more likely to be adapted than ESCR is that CPR tend to be rights based on the individual freedoms of people. While CPR create negative obligations on states, ESCR, impose positive obligations on states, requiring them to interfere with freedoms of the individuals where socio-economic positions of some are disproportionately threatened.25 This is more general of human rights regimes under any case. Proper invocation of an effective regime would often mean that the power asymmetry is challenged, taking the freedom away from the powerful to act in favour of their best interests.  

Historically, ESCR have been met with inertia by most states that prioritised and relied on market-based principles for development and growth.26 A majority of the communiqué of some of the more economically developed nations known as the G20 exemplifies this.27 Only recently have human rights discourse penetrated their circles,28 paving the way for ESCR. This is because G20 states rely heavily on the belief that good governance and the advancement of economies are more effective to reduce poverty and inequalities. However, they are critical global actors and significantly impact enjoyment rights.29 Another such example is the World Bank’s emphasis on the development of good governance and rule of law being a pre-requisite to the eradication of poverty.30 In essence, this attitude of global actors and economic drivers shows a zealous pursuit of freedoms for groups with access to resources, who are driven by a focus on growth. Additionally, ESCR are unique in that they impose positive and negative obligations on state and other actors through states and can only be truly obtained by the concerted effort of all concerned actors.31 Certain CPR are similar to this in that it requires state to allocate sufficient resource to create infrastructure to ensure their effectiveness. For example, state is expected to ensure a proper judicial set-up to facilitate the right to free and fair trials or to allocate sufficient resources to facilitate the right to a fair election.32 

It is important to recognise that despite this inertia; international and national bodies have developed human rights jurisprudence through the adaptation of various treaties and through the general comments of international organisations like the United Nations.33 This is evidenced by the development of the International Convention on Economic, Social and Cultural Rights34 and the subsequent development of jurisprudence developed through general comments.35 Similar evolution of human rights is noticed in most constitutions drafted after World War II – guaranteeing a range of social rights.36 Jurisprudence also developed at national levels surrounding human rights-based approach to inequality. One example of this is the case of Brown v Board of Education37 where the United States Supreme Court struck down the concept of ‘separate but equal’, paving the way for ESCR. Similarly, through its judgment, the German Federal Constitutional Court held that a right to a free choice of occupation meant that universities would have to ensure that adequate resources were allocated to maximising the number of places available to potential students.38 While there have been inadequacies with how human rights regimes worked to address problems surrounding poverty and inequality, there have been advancements on both national and international levels. However, there are some structural issues surrounding the jurisprudence and legal approach of the human rights framework.  

Legal Challenges of Human Rights Approach: 

The accountability framework with which such rights work is dependent on its enforcement. While the right to be free of poverty is not formally recognised in the existing framework, the legal dimension of this right is built from one or several legally binding obligations that already exist and have been adapted by many nations.39 The ability to effectively translate these rights into enforceable ones is largely hinged on the concerned courts’ thorough understanding of resources available to the state and their legislature’s priorities40 at a national level. At an international level, elements surrounding the respect for autonomy of each state will also arise. Additionally, where the courts do attempt to pronounce judgements surrounding matters of resource allocation, they are seen to be subverting the democratic process employed by citizens to achieve certain goals.41 The indeterminant nature of ESCR plays a role here.42 It is presumed that the courts would be inadequately equipped to determine a clear standard to assess whether an individual was sufficiently impoverished to be able to invoke such rights.43 Assuming that the court is able to determine a standard, a further challenge of drafting the correct order to provide compensation or create a framework for the state to employ to ensure rendering of certain services on the litigant.44 To this extent, it has been argued that where a country shifts towards a free market-based approach to address distributional goals, the courts enforcement of and the constitutions adaptation of such rights would interfere with the flexibility the state would need to achieve economic aspirations of its citizens.45  

For ESCR to be enforceable rights, they need to be institutionalised. However, in such cases they are subject to courts’ interpretations, which might be contradictory to or inadequate to meet the distributional demands of the numerous competing actors who would lay claim to their competing rights over the concerned resources.46 This critique suggests that unlike CPR, which essentially require governments to play non-interventionist roles, ESCR require significant intervention in the form of assessment and reallocation of resources. It also suggests that in many cases, the resources might be too limited (due to competing interests) within a given system to meaningfully implement these rights.47 

Another critique of the application of ESCR and their meaningful implementation is that courts might often be incapable of direct enforcement. Once a right is claimed by a litigant and recognised by the court, if the court is unable to provide that right, then its interpretation of that right through a legal lens becomes effectively redundant.48 This is axiomatic of both the international and national levels. At the international level, this becomes true due to jurisdictional authority. The limited capacity of an international tribunal to address matters of nuanced policy requirements of different states coupled with their jurisdictional lack of capacity renders their judgement ineffective in this regard. Similarly (yet not entirely the same), domestic courts are only able to insist on the formulation of a rational mechanism to ensure that the litigant is not denied their rights on some arbitrary basis, due to its limitation of knowledge of state resources and the democratic values. This is at best a secondary form of enforcement ergo, ESCR do not fall within the scope of the court’s ability to render legal rights.  

The response to this criticism is on two broad terms. Firstly, secondary enforcement provides valuable guidelines into how rights should be interpreted in order to construct state policies. Once the judicial interpretation and insistence on the objectives of the legal framework is articulated, litigants are better able to understand their rights and make demands. Equally, it becomes easier for states to balance these objectives with their own.49 At the very least, it removes the arbitrary nature of the provision or deprivation of rights.50 Second, it is argued that in order to better translate rights with an understanding of state’s resource limitations and allocation obligations, the courts are able to employ the help of experts and rely on evidence and arguments provided by the litigants.51 Examples of judiciaries employing such mechanisms through judicial review can be seen across the globe. In the Grootboom52 case, the South African Constitutional Court employed a form of review whereby it chose not to address the content of the rights claimed but demanded that any governmental initiative would have to account for the poorest in society or risk being unconstitutional. This is a form of weak review where the Court chose not to supplant the competing democratic objectives of the state. While this allows some freedom to the state (or other such actor), it sets out better clarified objective to a specific right in relation to domestic policies. Contrastingly, in Olga Tellis53, a strong form of review through India’s writ jurisdiction is seen, where the Court gives specific directions to the actors in question in how they should uphold the rights enshrined in the constitution. Even though, India does not direct apply ESCR, it does so through Article 21 of its constitution, which enshrines the right to life.54 This strong form of review allows the courts in these jurisdictions to ensure performance of specific positive obligations with a view to reduce inequality through effective redistribution methods that directly impact the litigant’s access to resources and capabilities. At an international level, Äärelä and Näkkäläjärvi55 depicts the justiciability of ESCR and its meaningful use in the legal framework to defend a person’s livelihood by creating effective state policy that ensures that such forms of livelihoods survive. 

In light of the discussion above, it is proposed that while there are inadequacies surrounding the use of human rights as a tool tackle inequality and social justice, the framework still has sufficient benefits in the ways in which it enshrines accountability. International, national, state and non-state actors all have some capacity to counter the impacts of poverty on inequality and power asymmetry56. Invocation of the powerful human rights framework allows the weak to demand certain benefits and redresses from those who are advantaged. The framework also provides, through its legal grounding, to be able to create discourse surrounding objectives of states and competing actors and interpretations of the rights aimed at protecting the weakest in society. Poverty’s correlation to inequality is in its cyclical nature. Those who are impoverished and are unable to invoke their rights, ultimately continue to suffer at the hands of unequal access to empowerment and opportunity. Having a legal framework by which they are able to seek access to resources to reduce their state of poverty, allows people to start fighting the power asymmetry by compelling competing actors to behave in a manner that does not exclude them. 

Ahmed Shafquat Hassan,
Barrister (Non Practicing), The Honourable Society of the Inner Temple,
LLM in International Law and Governance (Ongoing), Durham University
LLB and Bar Professional Training Course, University of the West of England

 
Primary Sources: 

  1. Äärelä and Näkkäläjärvi Communication No. 779/1997 
  1. Brown v Board of Education 347 US 483 (1954) 
  1. Numerus Clausus I case (1972) 33 BVerfGE 303 
  1. Olga Tellis and others v Bombay Municipal Corporation and othes 1985 (3) SCC 545 

Secondary Sources:  

  1. Alexander Bickel, The Least Dangerous Branch: Supreme Court at the Bar of Politics (1962) 
  1. ALLEN, T. & THOMAS, A. (eds.). Poverty and Development into the 21st Century. Oxford. Oxford University Press, 2000. p. 10. 
  1. Amartya Sen, ‘Elements of the Theory of Human Rights’ (2004) 32 Philosophy and Public Affairs 315. 
  1. Andre Beteille, Poverty and Inequality, Economic and Political Weekly, Vol. 38, No. 42 (Oct. 18-24, 2003), pp. 4455-4463 
  1. Cass Sunstein, Free Markets and Social Justice (1997). 
  1. CESCR, Statement on Poverty and the ICESCR, E/C.12/2001/10 (10 May 2001) 
  1. COMMISSION ON HUMAN RIGHTS. Economic, Social and Cultural Rights, Human Rights and extreme poverty. Report of the independent expert on the question of human rights and extreme poverty by Arjun Sengupta. UN DOC: E/CN.4/2005, 11 Feb. 2005 
  1. Commission on human rights. Economic, Social and Cultural Rights, Human Rights and extreme poverty. Report of the independent expert on the question of human rights and extreme poverty by Arjun Sengupta. UN DOC: E/ CN.4/2005, 2 Mar. 2006 
  1. Costas Douzinas, ‘The poverty of “rights” jurisprudence’ in  Conor Gearty and Costas Douzinas (eds)  The Cambridge Companion to Human Rights Law (CUP 2012) 
  1. D.M. Davis, ‘Socio-Economic Rights’, in M. Rosenfeld and A. Sajó (eds.), Oxford Handbook of Comparative Constitutional Law (OUP 2012) 1020-35 
  1. DRÈZE, J. & SEN, A.K. India: Development and Participation. New Delhi: Oxford University 
  1. Eric V. Edmonds, Child Labor, in T. Paul Schultz, John Strauss (eds.) Handbook of Development Economics, Volume 4 
  1. European Foundation for the Improvement of Living and Working Conditions. Public welfare Services and Social Exclusion: the Development of Consumer Oriented Initiatives in the European Union. Dublin, 1995 
  1. Fernanda Doz Costa, Poverty and Human Rights: From Rhetoric to Legal Obligations a Critical Account of Conceptual Framework, SUR – Intrenational Journal on Human Rights, December 2008 
  1. Final draft of the guiding principles on extreme poverty and human rights, submitted by the Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, UN Doc. A/HRC/21/39, 18 July 2012 
  1. Frank Cross, ‘The Error of Positive Rights’ (2001) 48 UCLA Law Review 857. 
  1. G20 Leaders’ Communiqué Brisbane Summit, 15-16 November 2014 
  1. Gewirth, Human Rights; J. Griffin, On Human Rights (Oxford University Press 2008). 
  1. ICESCR, 1966, articles 1.1 (right to development) and 11 (right to an adequate standard of living). 
  1. Khan, The Unheard Truth: Poverty and Human Rights (WW Norton, 2009) 21 
  1. Lawrence Sager, On Material Rights, Underenforcement and the Adjudication Thesis’ (2010) Boston University Law Review 579. 
  1. Marks, S.P. The Human Rights Framework for Development: Seven Approaches. In: BASU, M., NEGI, A. & SENGUPTA (eds.). Reflections on the Right to Development. New Delhi: Sage Publications, 2005 
  1. Marx Engels Collected Works. New York: International Publishers, 1975, vol. 3 
  1. Pew Global Attitudes Project, The Global Middle Class: Views on Democracy, Religion, Values, and Life Satisfaction in Emerging Nations (Pew Research Center, 2009)  
  1. Pogge, ‘Severe Poverty as a Human Rights Violation’ in Pogge (ed), Freedom from Poverty as a Human Right: Who Owes What to the Very Poor? (OUP, 2007) 
  1. Priorities of Russia’s G20 presidency in 2013  
  1. Republic to South Africa v Grootboom and others 2001 (1) SA 46 (CC) 
  1. Rightingfinance, ‘The Group of 20, Financial Regulation and Human Rights’  
  1. SACHS, J. D. The end of poverty, economic possibilities for our time. New York, The Penguin Press, 2005. 
  1. SACHS, J. Human Rights Perspectives on the Millennium Development Goals: Conference Report. Center for Human Rights and Global Justice/New York: NYU School of Law, 2003, 
  1. Sen, On Ethics and Economics (Blackwell, 1988) 
  1. Sen, The Idea of Justice (Allen Lane, 2009) 
  1. Stephen Marks, ‘Emerging Human Rights: A New Generation for the 1980s’ (1981) 33 Rutgers Law Review 435 
  1. Stephen P Marks, ‘Poverty’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran, International Human Rights Law (3rd edn, OUP 2018) Chapter 30 
  1. The Legacy of Ronald Dworkin, Edited by Wil Waluchow and Stefan Sciaraffa (2016),  
  1. Thomas Grey, ‘Traditional Review, Legal Pragmatism’ (2003) 38 Wake Forest Law Review 473 
  1. Vizard Polly (2006), Poverty and Human Rights: Sen’s ‘Capability Perspective’ Explored, Journal of Social Policy 36(04) 
  1. Wade M. Cole, International Human Rights and Domestic Income Inequality: A Difficult Case of Compliance in World Society, American Sociological Review, Vol 80, Issue 2, 2015 
  1. William Easterly, The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor (New York, Basic Books, 2013) 7 
  1. World Bank, World Development Report 2017: Governance and the Law. (World Bank. 2017). 
  1. Wright, cited in Stephen Marks, ‘Emerging Human Rights: A New Generation for the 1980s’ (1981) 33 Rutgers Law Review 435, 439 

Total
0
Shares
Share 0
Tweet 0
Pin it 0
Share 0