Described by Neier as ‘non-enforceable and broad assertions which require democratic debate”, economic, social and cultural rights are often misunderstood. They can be seen as aspirational extras that are closer to privileges than rights. When talking about human rights most people immediately think of the civil and political rights, not the economic, social and cultural rights.
There were some interesting views raised in the readings this week, most very sceptical of the role they have to play. There are a lot of interesting links between this topic and the issue of inequality. Personally, I find Philip Alston’s argument that a renewed focus on ESC rights can play an essential role in combating inequality and ensuring that human rights remain relevant to be persuasive. However, several commentators argue that the ESC rights are too broad, vague and non-enforceable to play a significant role in combatting inequality. Nevertheless, ESC rights are real human rights.
The common misconception that ESC rights do not impose ‘real obligations’ on states stems from a misunderstanding of the progressive obligation that is imposed on states by Article 2(1):
Each state party to the present Covenant undertakes to take steps individually and through international assistance and cooperation especially economic and technical to the maximum of its available resources with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means including particularly the adoption of legislative measures
While this does not impose an obligation on states to fully realise each of the ESC rights immediately, it does impose a real obligation to utilise their resources to move as expeditiously and effectively as possible towards realising those rights. Furthermore, it places an obligation on states to do so in a non-discriminatory manner. Thus it requires states to analyse how they are utilising their resources through a human rights lens.
Effectively, this is a similar approach to how states protect the civil and political rights of its citizens. While civil and political rights are often seen as negative rights which do not require states to take positive action, this could not be further from reality. Protecting civil and political rights does require significant investment of resources by states. It requires investment in the judicial system, political infrastructure and the police force just to begin with.
On of the thing that I took away from the seminars on civil and political rights and economic, social and cultural rights is that the language in which they are discussed is critical to the public’s perception of them. If it was made obvious that protecting civil and political rights does require significant investment then it may be easier to convince sceptics that ESC rights can similarly be realised.
In Australia, one ESC right that is the subject of constant debate is the right to housing. The issue is explored in the articles below:
The ridiculous nature of the debate surrounding housing in Australia is exemplified by the avocado. It started when Bernard Salt, a commentator who writes for The Australian wrote that if millennials stopped going out for brunch and eating smashed avo on toast, they could probably save a deposit for a house. He was quickly met with criticism and a barrage of articles explaining that it really wasn’t that simple and that housing affordability had become increasing out of reach for many, no matter how often they deprive themselves of avocado.
This debate highlights the fact that housing affordability has morphed into a much broader debate about inequality and generational warfare. In a way it is emblematic of many other issues – the increasing casualisation of the workforce, the increasing cost of education, and the growing disparity between the government’s taxation and policy approach to those who have houses and those who do not. All of these factors contribute the cost of housing and all are symptoms of an economy which is increasingly leaving people behind.
Additionally, the debate often focuses on what investors would have to give up – negative gearing and capital gains tax concessions. This obscures an important part of the debate, namely the purpose of housing itself. The narrative is increasingly preoccupied with the idea of houses as an investment rather than houses as shelter. Framing the debate around the right to housing would be an important step in changing this damaging narrative. This is explained succinctly in this article: Federal budget 2017: Home ownership – the new class divide
This proposal is an eminently sensible one that aims to increase the supply of houses and discourage property owners from keeping housing vacant. The thing that struck me when reading the comments on this article was the number of people expressing the sentiment that “this is my property and I have the right to do with it as I wish.” There were people stating that being a landlord was too much hassle and they just wanted to keep the property as an investment. They were adamant that this was their right.
To me that brings up an important question of how society chooses to balance the rights of individuals. Although these individuals may believe they have a right to as they wish with their property, other members of society have a right to shelter and housing. The first right cannot be used to deny other people their right to housing. This policy is an example of a government taking a progressive approach to the realisation of ESC rights. They are using the resources at their disposal to shift the balance towards those who need housing.