Page controls
Page content
Key International Instruments
The Universal Declaration of Human Rights[18], adopted by the United Nations General Assembly in December 1948, proclaimed the inviolability of social and economic rights. Social and economic rights contained in the Declaration include the right to own property (Article 17), the right to social security and to the realization of social and economic rights “indispensable for [a person’s] dignity and the free development of his [or her] personality” (Article 22), rights with respect to employment (Article 23) and rights with respect to education (Article 26). Article 25 recognizes a right to a certain standard of living:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control....
Article 2 of the Declaration states that everyone is entitled to these rights without distinction of any kind based on grounds such as race, colour, sex, religion and so on.
The moral statements expressed in the Declaration were given legal force through two covenants: the International Covenant on Civil and Political Rights[19] and the ICESCR. The division of these two categories of rights into different instruments has been blamed in part for establishing a distinction between the rights that has “ever since hovered like an albatross over the development of human rights protection”.[20]
The ICESCR is one of the most influential and comprehensive international documents in the area of social and economic rights.[21] In addition, there are a series of international conventions, declarations and agreements that address economic, social and cultural rights.[22] These instruments have further refined international legal norms relating to a wide range of socio-economic issues.[23]
The economic, social and cultural rights embodied in the ICESCR are based on a perspective according to which people can enjoy rights, freedoms and social justice simultaneously.[24] Protection of economic, social and cultural rights has been deemed necessary as the right to live a dignified life can never be attained unless all basic necessities of life – work, food, housing, health care, education and culture – are adequately and equitably available to everyone.[25]
Scope of ICESCR
The ICESCR guarantees a comprehensive range of substantive rights including:
- The right to self-determination (Article 1);
- Equal rights for men and women (Article 3);
- The right to work (Article 6);
- The right to just and favourable conditions of work (Article 7);
- The rights of workers to organize and bargain collectively (Article 8);
- The right to social security and social insurance (Article 9) and protection and assistance for the family (Article 10);
- The right to an adequate standard of living (Article 11) which includes:
- Adequate food
- Adequate clothing
- Adequate housing;
- The right to freedom from hunger (Article 11);
- The right to the highest attainable standard of physical and mental health, including the right to health care (Article 12);
- The right to education (Article 13); and
- The right to culture and to benefit from scientific progress (Article 15).
Article 2 binds States parties to guarantee that all rights within the ICESCR will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. This list is not exhaustive. This provision of the ICESCR has been interpreted to require States parties to prohibit private persons and bodies from practising discrimination in any field of public life.[26]
State Obligations under the ICESCR
Canada became a State party to the ICESCR in 1976. [27] The ICESCR is a legally binding instrument with States parties accepting the responsibility to implement and maintain the rights guaranteed therein. Article 28 provides that the Covenant’s provisions “shall extend to all parts of federal States without any limitations or exceptions.” Accordingly, the ICESCR is binding on the federal government and each of the provinces and territories, and rights that are within provincial competence are the obligation of the provincial and territorial governments[28]. Before ratification of both the ICESCR and the ICCPR, there was extensive consultation between the federal government and the provinces. After a 1975 Federal-Provincial Ministerial Conference on Human Rights, all the provinces gave their consent to Canada’s ratification of both covenants. At the same conference, the federal government and the provinces reached an agreement with respect to ratification of all international human rights covenants which is based upon the principle of federal-provincial and inter-provincial “concertation”, i.e. acting together to implement human rights treaties ratified by Canada.[29]
Article 2 describes the nature of the legal obligations under the ICESCR and the manner in which States parties should approach implementation of the substantive rights. States parties are required to take steps to the maximum of their available resources with a view to achieving progressively the full realization of ICESCR rights by all appropriate means. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights state that legislative measures alone are not sufficient: administrative, judicial, policy, economic, social and educational measures will be required by governments to ensure ICESCR rights.[30]
International Mechanisms for Enforcement
Scholars have noted the relative weakness of the international system in ensuring compliance with international norms generally, and in the area of social and economic rights in particular. To the extent that procedures exist, they are inquisitorial and supervisory in nature and rely on persuasion rather than coercion.[31]
The ICCPR contains a provision that allows states or individuals to complain to a reviewing body. There is no similar complaint procedure under the ICESCR.[32] The ICESCR Committee has noted that the absence of such a procedure “places significant constraints on the ability of the Committee to develop jurisprudence or case-law and, of course, greatly limits the chances of victims of abuses of the ICESCR obtaining international redress.”[33] To address this, the ICESCR Committee has promoted a draft optional protocol which would enhance the practical implementation of the ICESCR. The ICESCR Committee has signaled that pending the addition of this protocol, beneficiaries of the rights in the ICESCR may still have recourse to the general procedures of the Committee, and may utilize what has been called an “unofficial petition procedure” based on the modalities of the Committee.[34] Similarly, the Human Rights Committee, which studies reports and hears complaints under the ICCPR, has indicated that economic and social rights may, in some instances, be protected as civil and political rights.[35]
As there is no complaint procedure under the ICESCR, the primary mechanism for its enforcement is the state reporting process. Pursuant to Articles 16 and 17, States parties undertake to submit periodic reports to the ICESCR Committee on the programmes and laws they have adopted and the progress made in protecting Covenant rights. The U.N. has promulgated guidelines for the preparation of reports.[36]
The State reporting procedure is quite complex but some aspects merit discussion. State reports receive initial consideration by a pre-sessional working group of the ICESCR Committee which develops a list of questions. The States parties must provide a written reply before their delegation appears before the ICESCR Committee. At meetings of the ICESCR Committee, State delegations and U.N. specialized agencies provide information relevant to the report being considered. Committee members then put questions and observations to the State party and responses are provided. The Committee may request supplemental information for consideration at forthcoming sessions.[37]
The Committee has formalized a procedure for participation by Non-Governmental Organizations (“NGOs”) in the process. NGOs are given an opportunity to make oral submissions about State parties’ implementation of Covenant rights before the pre-sessional working group and the regular session of the ICESCR Committee. The Committee will receive oral testimony from NGOs provided it is reliable, relevant and not abusive. The Committee will also receive written materials from NGOs.[38]
The ICESCR Committee concludes its consideration of the State party’s report by issuing Concluding Observations which constitute the decision of the Committee regarding the status of the ICESCR in the country. The Concluding Observations include positive aspects of implementation, principal subjects of concern and suggestions and recommendations. The Committee may conclude that a State party has failed to comply with an obligation and, hence, a violation of the ICESCR has taken place. The Limburg Principles and more recently the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights[39] set out what may constitute a violation of the ICESCR[40].
It is important to note that the ICESCR Committee’s Concluding Observations are not legally binding and there is no method for enforcement. However, the Committee has stated that for a State party to ignore the views contained in the Concluding Observations would be to show bad faith in implementing Covenant-based obligations.[41]
[18] 10 December 1948, General Assembly resolution 217A (III), UN Doc. A/810 [hereinafter the Declaration].
[19] 16 December 1966, 999 U.N.T.S. 171, Can. T.S. 1976 No. 47 (entered into force 23 March 1976, accession by Canada 19 May 1976) [hereinafter the ICCPR].
[20] C. Scott, “Canada’s International Human Rights Obligations and Disadvantaged Members of Society: Finally into the Spotlight?” (1999) 10 Constitutional Forum 1 at 1 [hereinafter Canada’s International Human Rights Obligations].
[21] Ontario Ministry of the Attorney General, Constitutional Law and Policy Division, The Protection of Social and Economic Rights: A Comparative Study, Staff Paper (19 September 1991) at 34.
[22] In 1995, the United Nations estimated that there were no fewer than 81 formal agreements which address such issues as poverty eradication, employment generation and social integration; J.W. Foster, “Meeting the Challenges: Renewing the Progress of Economic and Social Rights” (1998) 47 U.N.B.L.J. 197 at 197.
[23] Fact Sheet No. 16, supra, note 1.
[24] Ibid.
[25] Ibid.
[26] Ibid.
[27] Canada also ratified the ICCPR at the same time.
[28] From M. Jackman & B. Porter, “Women’s Substantive Equality and the Protection of Social and Economic Rights under the Canadian Human Rights Act” (Ottawa: Status of Women Canada, October 1999), online: Status of Women Canada Homepage <http://www.swc-cfc.gc.ca/research/1-8-99e.html> citing the Vienna Convention on Law of Treaties, 23 May 1969; 115 U.N.T.S. 331; 8 I.L.M. 679 (entered into force 27 January 1980), art. 27.
[29] For a detailed discussion of the process leading up to Canada’s ratification of the covenants, the “modalities and mechanisms” for implementing the covenants and the creation of a continuing federal-provincial committee of officials responsible for human rights, see P. LeBlanc, “Canada’s Experience with United Nations Human Rights Treaties” The Agendas for Change Series: Perspectives on UN Reform No. 3 (research commissioned by United Nations Reform Programme of the Canadian Committee for the 50th Anniversary of the U.N., November 1994).
[30] The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, U.N. Doc. E/CN.4/1987/17, Annex at para. 17 and 18 [hereinafter the Limburg Principles].
[31] See for example The Protection of Social and Economic Rights: A Comparative Study, supra, note 21 at 37.
[32] This may in part explain the widely held belief that economic, social and cultural rights are non-justiciable and unenforceable and are ‘positive’ rights to be fulfilled ‘progressively’ over time. The justiciability of these rights will be discussed later in the paper.
[33] Fact Sheet No. 16, supra, note 1.
[34]Ibid. The 1998 Concluding Observations are illustrative of the Committee’s use of the reporting mechanism to enhance economic and social rights in Canada through strong moral persuasion. Some scholars have noted that the Committee has increasingly assumed more of an adjudicative role, thus indicating that the international community has begun to feel more comfortable with the idea of social and economic rights being claimed and adjudicated in the same manner as other human rights. See Jackman & Porter, supra, note 28 at 52.
[35] The Protection of Social and Economic Rights: A Comparative Study, supra, note 21 at 38. This study notes that, in deciding two cases, the Human Rights Committee has held that excluding a person from social security benefits (protected under the ICESCR) is a violation of the right to equality under the ICCPR for which the state must provide a remedy. As well, the Human Rights Committee has given some indication in a General Comment that the right to life under the ICCPR could require a state to adopt positive measures, e.g. to reduce infant mortality or eliminate malnutrition.
[36] For example, United Nations Committee on Economic, Social and Cultural Rights, General Comment No. 1: Reporting by States Parties, 24 February 1989, E/1989/22.
[37] Fact Sheet No. 16, supra, note 1.
[38] Ibid. citing the ICESCR Committee’s Procedure re NGO Participation in the Activities of the Committee on Economic, Social and Cultural Rights, 8th Sess., May 1993, E/1994/23, para. 354.
[39] The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, reprinted in (1998) 20 Human Rights Quarterly 691 [hereinafter the Maastricht Guidelines].
[40] Limburg Principles, supra, note 30 at principle 72.
[41] Fact Sheet No. 16, supra, note 1.