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Introduction Introduction Economic, social and cultural rights are a central part of the remit of the Irish Human Rights Commission (IHRC). The Strategic Plan of the IHRC 2003-2006 identifies three key areas of work: the administration of justice; economic, social and cultural rights; and cross-cutting issues. In the first two years of the Strategic Plan, the IHRC has concentrated on the first and third of these areas. The publication of this Discussion Document marks a key stage in the IHRC’s engagement with economic, social and cultural rights. The Discussion Document identifies the issues which will be the focus of an international conference on 9th and 10th December 2005 where the analysis and thinking of the IHRC on these issues will be opened up for debate and consultation to an audience of international and national experts and stakeholders. In 2006 we intend to take this process forward by publishing a follow-up report building on that debate, which will make recommendations on how Ireland might improve its structures and policies for the respect, protection and fulfilment of economic, social and cultural rights. The starting point of the IHRC is that all human rights are universal, inalienable, interrelated, and interdependent. The universality of human rights means that they are inherent in every individual, without discrimination, are not dependent on gift or privilege and cannot be voluntarily given up nor taken away. When one considers that the core value at the heart of human rights discourse is that of human dignity, there can be little dispute as to the fundamental nature of economic, social and cultural rights and international human rights law clearly states that different types of human rights, economic, social, cultural, civil and political, are of equal importance and are mutually reinforcing. Internationally, there is a growing conviction that the implementation of human rights principles will strengthen social harmony and cohesion, advance the process of development and promote the accountability and legitimacy of governments. Chapter 1 of this Discussion Document explores the background to the development of international human rights standards, focussing on how the evolution of international law in this area has created a rich body of legal norms which gives equal place to economic, social and cultural rights with civil and political rights. It traces the establishment of the human rights system in the 1940s and 1950s which was based on an attempt to bring together a diverse range of cultural and philosophical traditions, including, but not limited to, liberal rights theory, Marxism, Christian and other religious teaching and developments within modern philosophy. The development of the Welfare State in Germany and Britain and Roosevelt’s “New Deal” in the United States are all shown as stages in the development of thinking about why protections aimed toward social justice are important in a democratic society. In particular, we look at Roosevelt’s contribution in integrating the language of civil and political rights with that of economic and social rights, stemming from his strong sense that economic want must be met, not only to protect and guarantee human dignity, but also to ensure political stability and the enjoyment of political freedom. Chapter 1 also recounts how, following the adoption of the UDHR in 1948, the debate around the relationship between the different categories of rights quickly became a victim of the polarised politics of the Cold War. By placing the division of the two 1 main international human rights covenants in their historical and political context, this chapter helps to illuminate how the separation of the two covenants occurred because of particular historical and political factors rather than because of any essential difference between the two sets of rights. The artificial nature of the separation of the two covenants has been recognised at the international level, most notably in the Vienna World Conference on Human Rights in 1993, which endorsed the principles of the equivalence and interdependence of both sets of rights. One of the main purposes of this Discussion Document is to explore why these rights have remained so underdeveloped, particularly in the Irish context. In chapter 2 we address some of the key objections to economic, social and cultural rights as well as describing the existing structures and trends in Irish law and policy which may constitute obstacles to their protection. In Ireland economic, social and cultural rights have been the subject of much public debate and controversy in recent years, particularly in the context of a number of leading cases dealing with education and health issues. However, the IHRC believes that these debates have displayed a number of misunderstandings as to the nature of these rights within the international human rights framework and Ireland’s obligations under international human rights law. The contention that there is a hierarchy of rights with civil and political rights taking precedence over economic, social and cultural rights is persistent and has particular significance for discussions on the form of protection, if any, which economic and social rights should be afforded in the domestic legal system. It is undeniable that economic, social and cultural rights remain less developed in law and in practice than civil and political rights, and widespread and gross violations of those rights continue to receive less scrutiny and attention than violations of civil and political rights. In this chapter we attempt to demystify some of the myths and misconceptions around economic, social and cultural rights and their relationship with civil and political rights and look at the place of economic, social and cultural rights in contemporary liberal democratic models of government and economics. Chapter 3 is a detailed and comprehensive description of international human rights standards in the area of economic, social and cultural rights, focussing on the nature of Ireland’s obligations under the relevant treaties. The issue of the failure of State agencies to incorporate these international rights into policies and programmes is a continuing source of controversy, as is the question of whether the Irish Constitution acts as a barrier to the incorporation of international treaties into domestic law. The Irish Government’s position on this has been challenged by the UN Committee on Economic, Social and Cultural Rights. It is hoped that the promulgation of these rights and standards by the IHRC and others will act to speed up the process of ensuring that people in Ireland can enjoy the human rights protection which the Irish State has accepted on their behalf. The IHRC is particularly grateful to Dr. Padraic Kenna of N.U.I. Galway for his contribution to this chapter and his advice and assistance to the IHRC in preparing this Discussion Document in general. What is clear from our survey of international law in this area is that mechanisms for protecting economic, social and cultural rights at the international level are becoming increasingly sophisticated and effective. Chapter 4 surveys models of enforcement of these rights at the legal and administrative levels, borrowing from international comparative experience of how human rights obligations in the area can be met effectively at the national level. It also explores the possibilities that are available in 2 creating a matrix of effective means of protection of rights and looks at the different ways in which constitutions, legislation, courts and administrative structures can be used to protect economic, social and cultural rights. Here, we see that exciting innovations are taking place in many countries to meet the obligations contained in international law. As the IHRC’s comparative analysis focuses particularly on developments in common law countries, many of these innovations could be easily transferred to Ireland. In this sense the Discussion Document is intended map out how a framework for the protection of economic, social and cultural rights might be designed and implemented. Chapter 5 examines Ireland’s history of enforcing economic, social and cultural rights. This chapter aims to situate potential models of enforcement in the particular Irish legal and political context. Existing mechanisms for protecting rights in Ireland are analysed as are some of the limitations of our existing structures. Finally, Chapter 6 brings all of the previous analysis together and begins the discussion of what practical steps can be taken in Ireland to make our international commitments a reality. The IHRC would like to emphasise that the analysis contained in this Discussion Document is not intended to be taken as the IHRC’s final word on any of these issues. This Discussion Document is designed to stimulate debate on how Ireland can improve the protection and promotion of economic, social and cultural rights and help to meet its international obligations under the international human rights treaties to which it is a party. By publishing our analysis in this manner, we hope to stimulate an informed debate around the points raised and the IHRC welcomes submissions on the points raised from any interested party or organisation before June 30th 2006. As we have indicated, the discussions at the IHRC’s international conference on 9th and 10th December 2005 and any feedback received on this Discussion Document will be incorporated in the IHRC Report on Economic, Social and Cultural Rights which we intend to publish in late 2006. 3 Chapter 1 - The origins of economic, social and cultural rights 1.1 What are economic, social and cultural rights? In this chapter we discuss the question of what do we mean by economic, social and cultural rights. We look in particular to how they relate to other human rights and to the history of their development. Within human rights discourse, the grouping “economic, social and cultural rights” is usually set in opposition to the category of “civil and political rights”, although, as we will see, this distinction is controversial.
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