The Benefits of Using Equality and Non-Discrimination Strategies in Litigating Economic and Social Rights – New Guide Published

Joanna Whiteman - 14th January 2015

Socio-economic inequality is the biggest human rights and development challenge today. At the Equal Rights Trust we believe that using the rights to equality and non-discrimination in cases relating to the social and economic rights of the vulnerable is one until now under-explored way to address the challenge. On 10 December 2014, we published a Guide (with accompanying Online Case Compendium) which both makes our case and illustrates how such litigation may be brought.

Economic and social rights are clearly enshrined in international human rights law. The International Covenant on Economic, Social and Cultural Rights of 1966 sets out critical rights such as those to education, an adequate standard of living, health and social security and requires that states guarantee that these rights will be exercised without discrimination (Article 2(2)). And yet there remains a serious problem of their realisation. What is this problem? Why does socio-economic inequality persist and indeed grow? From a legal perspective, for a start, in contrast to the rights contained within the sister Covenant, the International Covenant on Civil and Political Rights 1966, the rights were imbued with weaker effect with states only required to ensure the rights’ “progressive realisation”. Further, economic and social rights are not justiciable in many jurisdictions. Even where they are, courts remain reticent to interfere in what they still consider to be a matter with huge resource implications which remains to be determined by legislatures.

The reticence to treat socio-economic rights on an equal footing with civil and political rights is misplaced. As Octavio Ferraz has rightly pointed out, the issue is not that there aren’t the resources to secure everyone’s social and economic rights but rather that the resources are unequally distributed. Oxfam’s now well-cited finding that the 85 richest individuals in the world have, collectively, the same wealth as the poorest 3.5 billion demonstrates the inequality in stark terms. Inequality and discrimination, not limited resources, are at the heart of the problem of non-realisation of social and economic rights. Advancing equality and non-discrimination is key to solving the problem.

Unlike economic and social rights, the rights to equality and particularly to non-discrimination have received more traction both in terms of adoption as justiciable rights and in terms of being upheld in progressive judgments by courts. The Equal Rights Trust has long believed that these rights can provide an important basis upon which the socio-economic rights of the most disadvantaged can be realised.

In 2011, we commenced research into the extent to which courts at the international, regional and national levels (in selected jurisdictions) have made findings of discrimination or inequality in relation to socio-economic rights realisation. We found that there while there is some useful jurisprudence, it remains too limited and there is a need for equality and non-discrimination strategies to be employed more often and more effectively before courts.

The outcome of our research was “Economic and Social Rights in the Courtroom: A Litigator’s Guide to Using Equality and Non-discrimination Strategies to Advance Economic and Social Rights” which was published on 10 December. The Guide, taken together with its accompanying Online Case Compendium:

  • Elucidates the conceptual links between equality and non-discrimination on the one hand and economic and social rights on the other and explains why the former could be used to advance the latter;
  • Brings together for easy reference almost 100 cases from the key international and regional courts and treaty bodies and courts in nine national jurisdictions, which may provide useful precedents for lawyers;
  • Provides practical guidance to litigators on assembling a case strategy which makes the most of the equality and non-discrimination framework to advance socio-economic rights.

It is our hope that greater involvement of equality and non-discrimination strategies in cases relating to socio-economic rights, will result in greater realisation of the rights. And we hope that our Guide will provide a useful resource for litigators in working towards this goal.

Author profile

Joanna Whiteman is Head of Litigation at the Equal Rights Trust and drafted the Trust’s “Economic and Social Rights in the Courtroom: A Litigator’s Guide to Using Equality and Non-Discrimination Strategies to Advance Economic and Social Rights”. 

Citations

Joanna Whiteman, ‘The Benefits of Using Equality and Non-Discrimination Strategies in Litigating Economic and Social Rights – New Guide Published’ (OxHRH, 14 January 2015), <http://humanrights.dev3.oneltd.eu/the-benefits-of-using-equality-and-non-discrimination-strategies-in-litigating-economic-and-social-rights-new-guide-published/> [Date of Access].

Comments

  1. John Wilson says:

    If only the author had delved deeper into this issue, as I have despite being a ‘pleb’ whose rights have never been acknowledged let alone respected by the Courts or ‘protected’ the UK State, she might have changed her quote from the ICESCR preamble to include the words “Recognizing that, in accordance with the Universal Declaration of Human Rights, the idea…” instead of implying that no words came before “The”.

    Also, in the article above it also states that “in contrast to the rights contained within the sister Covenant, the International Covenant on Civil and Political Rights, the rights (in the ICESCR) were imbued with weaker effect…” because this too is fundamentally wrong, as the UN Human Rights Committee on the ICESCR has said otherwise. But who cares what an uneducated pleb has to say about that? I know that the Courts don’t; nor it seems are the legal professionals fully informed of the truth either?

    And although the Guide linked to this page, refers in pages 120-122 to General Comments made by the UN Committee on the ICESCR including General Comment No.3 (1990) in the first instance it does not mention GC No.9 which followed it in 1998.

    So although I think that I should be the one getting paid to expose these lies, I have no way of knowing how I can do this, so am left with only one option, for now, of telling you what they’ve been saying for decades. Particularly, but not exclusively, in relation to the UK’s compliance with this Covenant.

    In GC No.3 the Committee began by referring to Article 2 of the Covenant because “It describes the nature of the general legal obligations undertaken by States parties to the Covenant. Those obligations include both what may be termed (following the work of the International Law Commission) obligations of conduct and obligations of result.”. They also went on to address the issue of comparisons being made on ‘justiciablity’ between Economic etc. rights and Civil and Political Rights, which has also been implied by this article. And they stated in paragraph 9 of GC No.3 that:-

    “Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d’être, of the Covenant which is to
    establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”

    But by 1998 the same Committee said in paragraph 4 of GC No.9 that:-

    “In general, legally binding international human rights standards should operate directly and
    immediately within the domestic legal system of each State party, thereby enabling individuals
    to seek enforcement of their rights before national courts and tribunals. The rule requiring the
    exhaustion of domestic remedies reinforces the primacy of national remedies in this respect. The
    existence and further development of international procedures for the pursuit of individual claims is important, but such procedures are ultimately only supplementary to effective national remedies.”

    None of which has been recognised by the UK State, or its Courts and administrative systems, despite the fact that the ICESCR was ratified at the same time as the ICCPR in 1976, therefore “entered into force for the United Kingdom on the 20th August 1976”.

    If you need proof of this you can find a link to the original document ‘laid before Parliament’ on this petition page http://38d.gs/1zzrP1t and I trust that you will support it too and asks everyone whom you know to do likewise. If anyone can offer me free legal representation too that would be good.

    But the Committee has also issued responses the UK’s 5 yearly Compliance Reports which have also contained “Principle objects of concern” and recommendations or suggestions which no UK Government has every complied with either and still won’t until they’re forced to do so by the ‘electorate’. For examples
    1. In 2002 they told Tony Blairs Government that:-
    “The Committee is concerned that the national minimum wage is not set at a level that provides all workers with an adequate standard of living in accordance with articles 7 (a) (ii) and 11 of the Covenant. The Committee is also concerned that the minimum wage protection does not extend to workers under 18 years of age. The Committee considers that the minimum wage scheme is discriminatory on the basis of age, as it affords a smaller proportion of the minimum wage to persons between 18 and 22 years of age” and this discrimination continues to this day, as it does in ‘Social security’.
    2. In the same report they said that “The Committee reiterates its concern that the failure to incorporate the right to strike in domestic law constitutes a breach of article 8 of the Covenant (see paragraph 11 of the
    Committee’s 1997 concluding observations).” and of course Mrs Thatcher violated this when she acted to deny the Miners their Right to Work in 1984, eight years after the ICESCR was ratified.

    3. On the 12th June 2009 the same Committee which had considered a ‘combined forth to fifth periodic report’ had clearly become sick of the UK’s intransigence because they then stated in bold print that:-
    “Bearing in mind that it is that State party which is responsible for the implementation of the Covenant in all its territories, the Committee urges the State party to ensure the equal enjoyment of the economic, social and cultural rights by all individuals and groups of individuals under its jurisdiction, and recommends that the State party adopt a national strategy for the implementation of the Covenant throughout the State
    party’s territories.”

    Yet even the new coalition of 2010 has done nothing about this, and we’re now expected to vote for another UK Government in 2015 which will also ignore the fundamental principle of “All Rights For All”, Right Now. So if you read this then please support my petition for justice now, not 100 years in the future.

  2. John Wilson says:

    I may have made a few typing errors in my comment above but I can’t seem to edit them now. So please accept my apologies in advance, should you find any, starting from ‘every’ instead of ‘ever complied with’.

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