1、ECONOMIC, SOCIAL AND CULTURAL RIGHTS ININTERNATIONAL LAWThe effective promotion, protection and fulfilment of economic, social and culturalrights (ESC rights) is an important but underexplored component of internationalhuman rights law, of which ESC rights form an essential part. They are fundamenta
2、lto the dignity of every person. At the international level ESC rights are protected inseveral international instruments, the most comprehensive being the InternationalCovenant on Economic, Social and Cultural Rights, which has been ratified by amajority of states. However, claims of violations of E
3、SC rights are treated less seri-ously. This book subjects ESC rights protected in the Covenant to a deeper analysis inlight of the practice of the Committee on Economic, Social and Cultural Rights whiletaking into account other relevant sources of ESC rights at national, regional andinternational le
4、vels. It also analyses key issues relevant to ESC rights, with particularemphasis on various themes including state obligations; non-state actors obligations;womens ESC rights; domestic protection of ESC rights; and state reservations toESC rights. The book further makes a thorough examination of th
5、e rights to work,health, and education. By so doing, it demonstrates that ESC rights are justiciableand must not be marginalised. The book also brings together a collection of essentialmaterials on ESC rights needed to understand and analyse the subject. Written by aninternational human rights schol
6、ar, this timely work will be of value to all those inter-ested in human rights and international law.Economic, Social andCultural Rights inInternational LawManisuli SsenyonjoOxford AND PORTLAND, OREGON2009Published in North America (US and Canada) byHart Publishingc/o International Specialized Book
7、Services920 NE 58th Avenue, Suite 300Portland, OR 97213-3786USATel: +1 503 287 3093 or toll-free: (1) 800 944 6190Fax: +1 503 280 8832E-mail: Website: http:/ Manisuli Ssenyonjo 2009Manisuli Ssenyonjo has asserted his right under the Copyright, Designs and Patents Act1988, to be identified as the aut
8、hor of this work.All rights reserved. No part of this publication may be reproduced, stored in a retrievalsystem, or transmitted, in any form or by any means, without the prior permission of HartPublishing, or as expressly permitted by law or under the terms agreed with the appropriatereprographic r
9、ights organisation. Enquiries concerning reproduction which may not becovered by the above should be addressed to Hart Publishing at the address below.Hart Publishing Ltd, 16C Worcester Place, Oxford, OX1 2JWTelephone: +44 (0)1865 517530 Fax: +44 (0)1865 510710E-mail: mailhartpub.co.ukWebsite: http:
10、/www.hartpub.co.ukBritish Library Cataloguing in Publication DataData AvailableISBN: 978-1-84113-915-9Typeset by Forewords Ltd, OxonPrinted and bound in Great Britain byTJ International Ltd, Padstow, CornwallPreface PrefacePrefaceEconomic, social and cultural rights (ESC rights) are protected in sev
11、eral interna-tional human rights instruments, the most comprehensive being the InternationalCovenant on Economic, Social and Cultural Rights (ICESCR or the Covenant),which has been ratified by a vast majority of states. One of the most recent develop-ments with respect to the international protectio
12、n of ESC rights has been theunanimous adoption on 10 December 2008 by the United Nations General Assemblyof an Optional Protocol to the International Covenant on Economic, Social andCultural Rights (GA resolution A/RES/63/117).In adopting the Optional Protocol, the General Assembly took note of the
13、adop-tion by the Human Rights Council, by its resolution 8/2 of 18 June 2008, of theOptional Protocol. The Optional Protocol provides the Committee on Economic,Social and Cultural Rights (CESCR or the Committee), the body of independentexperts that monitors implementation of the ICESCR by its states
14、 parties, compe-tence to receive and consider communications submitted by or on behalf ofindividuals or groups of individuals, under the jurisdiction of a state party, claimingto be victims of a violation of any of the ESC rights set forth in the Covenant.The Optional Protocol reaffirms the universa
15、lity, indivisibility, interdependenceand interrelatedness of all human rights and fundamental freedoms. Significantly, inrecent years ESC rights have received increasing attention from various internationalorganisations and in academic writing, and the the contents of specific ESC rightshave been cl
16、arified by the CESCR and the courts in many national legal systems.Regardless of these positive developments, and the fact that ESC rights are funda-mental to the dignity of every person, many actors working with human rights lawstill focus solely or mainly on issues relating to civil and political
17、rights and tend topay lip-service to the interdependence and interrelatedness of all human rights.Claims of violations of ESC rights are still treated less seriously. This means that inpractice ESC rights are still marginalised.Economic, Social and Cultural Rights in International Law subjects ESC r
18、ightsprotected in the Covenant to a deeper analysis in the light of the practice of theCESCR while taking into account other relevant sources of ESC rights at national,regional and international levels.This book analyses key issues relevant to ESC rights, with particular emphasis onvarious themes in
19、cluding state obligations; non-state actor obligations; womens ESCrights; domestic protection of ESC rights; and state reservations to ESC rights. Thebook further makes a thorough examination of selected rights, in particular the rightsto work, health and education. By so doing, it demonstrates that
20、 ESC rights arehuman rights just as much as the traditional civil and political rights and do notvdeserve to be marginalised. It is noted that even if the Optional Protocol to the Cove-nant eventually comes into force, the views of the Committee under the Protocolwould not be legally binding in a st
21、rict legal sense.Thus, states could easily ignore them. In this context, the book questions whetherthere is a need for a World Court of human rights which could also consider claimsinvolving alleged violations of ESC rights in legally binding judgments against willingStates and non-State actors. Fin
22、ally, the book also brings together a collection ofselected essential materials on ESC rights needed to understand and analyse thesubject. This timely study will be of value to all those interested in human rights andinternational law.I would like to express my special thanks to all colleagues and t
23、o Professors DavidHarris and Robert McCorquodale who helped me to study international humanrights law at the University of Nottingham. I would also like to express my specialthanks to my family for their love over the years. Thanks also to Ife Ogbonna.Richard Hart and the team at Hart Publishing des
24、erve my thanks for seeing this bookthrough completion. Special tribute to Nick Allen who edited the book with skill. Thebook states the law as at 31 January 2009.Finally, this book is dedicated to Jamilah, Yaseen and Zainab for their hard work.Manisuli SsenyonjoSenior Lecturer, Brunel UniversityLond
25、onJanuary 2009vi PrefaceForeword ForewordForewordHappily, the legal protection of economic, social and cultural rights has come more tothe fore in recent years than previously. Although United Nations texts have consis-tently over time stressed the indivisibility and equal importance of civil and po
26、liticalrights and economic, social and cultural rights, in practice there has been a greatdivide, with the latter not being given the same legal priority as the former. The Inter-national Covenant on Economic, Social and Cultural Rights initially did not have anindependent treaty-monitoring body, le
27、t alone one that could receive individualcomplaints. This omission was partially remedied by the creation of the Committeeon Economic, Social and Cultural Rights, which became competent to receive andreview national reports. The most recent and hugely encouraging development hasbeen the adoption of
28、the Protocol to the International Covenant on Economic, Socialand Cultural Rights in 2008 which will provide a right of individual complaint whenit enters into force.At the regional level, there was largely the same pattern of difference. The Euro-pean Convention on Human Rights 1950, despite its al
29、l-embracing name, isconcerned almost exclusively with civil and political rights. It took another generationbefore the European Social Charter was adopted and a further generation before aright of collective (but not individual) complaints was introduced under it. As to theinter-American human right
30、s system, the American Convention on Human Rights1969 likewise emphasises civil and political rights; only later was the San SalvadorProtocol on Economic, Social and Cultural Rightswith its partial system of indi-vidual complaintadopted. The African Charter on Human and Peoples Rights1981 was a grea
31、t improvement in that it included from the outset a comprehensiveguarantee of the full range of human rights, including economic, social and culturalrights, and made these subject to a right of individual complaint.At the national level, the courts of some countries have shown the way, with thejuris
32、prudence of the Indian and South African courts being particularly well known,demonstrating that economic, social and cultural rights can be enforced through thecourts. Celebrated judgments by the South African Constitutional Court, such as thatin the Grootboom case, have been particularly influenti
33、al, showing that such rights arejusticiable and providing a public law model for deciding cases concerning them.What emerges is that it is not the nature of the rights that is crucial, but the nature ofthe obligations that are imposed by national law concerning them. Two other pointshave become clea
34、r. First, that the argument about justiciability, which has now largelybeen resolved, concerns social and, to some extent, cultural rights only. Economicrights, both individual and collective, have long been enforced in national courtswithout difficulty. Second, national courts have in fact been app
35、lying social rights,viisuch as the rights to health and education, without knowing it, deciding cases that areabout these rights (though not necessarily in compliance with them) under differentrubrics, such as health or education law.All of these considerations make the present book very timely and
36、valuable. Itoffers a comprehensive analysis of the basic elements of the legal regime of the Inter-national Covenant on Economic, Social and Cultural Rights and of certain keyeconomic and social rights and themes more generally. Of considerable importance isthe focus upon the economic, social and cu
37、ltural rights of women. The book also crit-ically reviews the jurisprudence of selected national courts. With the anticipatedarrival of the right of individual communication following the entry into force of theOptional Protocol of the International Covenant on Economic, Social and CulturalRights, t
38、ogether with the increased interest in and awareness of economic, social andcultural rights resulting from the adoption of the Protocol and other developments,the present study will be particularly welcome in both the academic and practitionerworld.David HarrisProfessor Emeritus and Co-Director of t
39、he Human Rights Law CentreSchool of LawUniversity of NottinghamMarch 2009viii ForewordContents ContentsContentsPreface vForeword viiList of Abbreviations xvList of Cases xixList of Legislation xxviiPart IReinforcing Economic, Social and Cultural Rights 11 The International Legal Protection of Econom
40、ic, Social and Cultural Rights 3I. Introduction 3II. Human Rights Obligations under International Law 6A. Background 6B. Towards Some Definition 9C. Human Rights Obligations and Responsibilities 17D. Globalisation and ESC Rights 18E. Obligation of Conduct and Result in International Law 22III. Tripa
41、rtite Typology of Obligations 23A. Obligation to Respect 23B. Obligation to Protect 24C. Obligation to Fulfil 25D. Obligation to Recognise? 26IV. The International Covenant on Economic, Social and Cultural Rights 26A. ICESCRAdoption and Ratification 26B. Overview of the ICESCR 27C. Treaty-Monitoring
42、 Body: CESCR and the Examinationof State Reports 28D. A Complaints Procedure Under the ICESCR and theOptional Protocol to the ICESCR 30E. Substantive Rights 38F. Non-Derogability of ESC Rights 39G. Extra-Territorial Application 42V. Conclusion 472 State Obligations under the ICESCR 49I. Introduction
43、 49II. Article 2(1) 50A. Obligation to Take Steps . . . by All Appropriate Means 52ixB. Obligation of Progressive Realisation 58C. Obligation to Utilise Maximum Available Resources 61D. Minimum Core obligations 65E. Obligations Regarding International Assistance andCo-operation 69F. The Application
44、of International Co-operation and Assistance 77III. Articles 2(2) and 3: Obligation to guarantee Non-Discriminationand Promote Equality 84A. Prohibition of Discrimination 85B. Equality between Men and Women 88C. Eradication of De Jure and De Facto Discrimination 90D. Temporary Special Measures 93E.
45、Discrimination by Non-State Actors 96IV. Article 2(3): Non-Nationals in Developing Countries 97V. Articles 4 and 5: Limitations on ESC Rights and SafeguardsAgainst Abuse 100VI. Conclusion 1023 Non-State Actors and the ICESCR 105I. Introduction 105II. Definition of Non-State Actor 108III. State Oblig
46、ation to Protect against Human Rights Violations byNon-State Actors 109A. State Obligation to Protect 109B. Protection against Discrimination 115C. Global Actors/Institutions 117D. Remedies against Violations by Non-State Actors 119IV. Direct Human Rights Responsibilities of Non-State Actors with Re
47、spectto ESC Rights 121A. Responsibilities of NSAs in International Human RightsInstruments 122B. The IMF, World Bank and Human Rights 128C. The WTO and Human Rights 136D. Corporations and Human Rights 142V. Conclusion 1444 The Domestic Protection of Economic, Social and Cultural Rights 149I. Introdu
48、ction 149II. The ICESCR on the National Plane 151III. Examples of the Application of the ICESCR on the National Plane 156A. United Kingdom 156B. South Africa 164C. Uganda 173D. Italy 181E. India 185IV. Towards an Effective Domestic Application of the ICESCR:The Role of Independent National HumanRigh
49、ts Institutions 190x ContentsV. Conclusion 2015 State Reservations to the ICESCR 203I. Introduction 203II. Permissible Reservations to the ICESCR and the Effect of anInvalid Reservation 208A. Permissible Reservations Under the ICESCR:The Object And Purpose Test 208B. Effect of an Invalid Reservation 211III. Questionable Reservations Made to the ICESCR 218A. Kuwaits Reservations 219B. Pakistan Reservations 226C. Turkey Reservations 232IV. Reservation by other States: Examples from Africa and Europe 236A. Reservations by African States 236B. R
