Condensed Lecture Notes on Human Rights and Welfare PDF

HUMAN RIGHTS AND WELFARE POLICIES Human Rights: A global approach to social justice which has been growing since 1980s. “Global civilization” in terms of a worldwide normative agreement on basic values, rights and principles. A universal normative standard of dignified treatment of all human beings. Not everyone agrees but there is a universal normative standard. Recognized as a condition for social and economic prosperity Understanding between countries and cultures. Part of international law, but distinct – ‘States are … making a solemn promise to the international community, and indeed to individuals within their jurisdiction’ (Mégret, p. 93). Rights and freedoms promised to all individuals – irrespective of race, gender etc. All protect human dignity – held by all humans because they are human. State obligations to individuals, not other states – focus is on the protection of the individual. Emphasis on state responsibility and obligations to fulfil rights – not enough to just have rights. Human rights are about the framework (priority), cannot just say someone has a right to healthcare without there being a framework/infrastructure in place. HR aim to secure equal possibilities, not to make people equal (equal access to healthcare, education, social). Rights are codified in treaties (“an international agreement concluded between States in written form and governed by international law … ” (Vienna Conv art 2,a)) e.g. right to life and fair treatment. Come back to look at Young, pp. 129-149 (detailed and nuanced on individual rights and state obligations). Today, there are international legal obligations that can restrain how a sovereign state may treat individuals within its jurisdiction → even most authoritarian regimes would not publicly oppose that their citizens have certain fundamental rights, even if govt actions suggest otherwise. Optimistic – more needs to be done to see proper enforcement of international standards but progress has been made. Story of HR is an ongoing issue. Evident from serious HR violations that improvement is needed. Instruments: Declarations (soft law) – not legally binding. Conventions/treaties/covenants (hard law) – legally binding for states after ratification. Ratification as a key process = legally bound, may be morally bound by declarations. Ratification = ”the international act so named whereby a State establishes on the international plane its consent to be bound by a treaty” (art 2, b) International Human Rights: Basic Instruments. International Bill of Human Rights 1 Universal Declaration of Human Rights (1948) International Covenant on Civil and Political Rights (ICCPR, 1966) International Covenant on Economic, Social and Cultural Rights (ICESCR, 1966) Additional Relevant Instruments: Almost all countries have ratified international human rights – need to check which is the most common/been ratified the most. Convention on the elimination of all forms of racial discrimination (CERD, 1966) Convention on the elimination of all forms of discrimination against women (CEDAW, 1979) Convention on the rights of the child (CRC, 1989) Convention on the Rights of Persons with Disabilities (CRPD, 2006) Regional Human Rights Instruments (Europe): Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR, 1950) Civil and political rights European Social Charter (1961, revised 1996) «The Social Constitution of Europe» EU Charter of Fundamental Rights (2000) Regional Human Rights Instruments: American Convention on Human Rights (1969) San Salvador Additional Protocol on Economic, Social and Cultural Rights (1988 ) African Charter on Human and Peoples´ Rights (1981) Cairo Declaration on Human Rights in Islam (1990) Vienna Convention on the Law of Treaties (1969): Art 2: Definitions Art 18: Refrain from violations of the treaty Art 26: Pacta sunt servanda: The treaty is binding Art 31 (1): General rule of interpretation: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Legal sources and interpretation: UN Committees: Evaluation of state reports; General Comments and Recommendations; Concluding observations to State parties Not legally binding, but authoritative legal sources European Court of Human Rights: HUDOC database provides access to the case-law of the Court Legally binding decisions European Committee of Social Rights: DIGEST OF THE CASE LAW OF THE EUROPEAN COMMITTEE OF SOCIAL RIGHTS Council of Europe, June 2022 https://rm.coe.int/digest-ecsr-prems-106522-web-en/168 2 History of HR: HR origins may be traced back to religious codes but controversial to state there is a precise point of departure for a HR history – would be politically charged. Many different threads to HR as it exists today. European Enlightenment (18th century revolutions), concept of human equality instead of feudalism with secularism instead. Universality (religious and cultural – many religions have claimed universal truth). Ethnocentric accusations but have been effective in providing variety of rights. History developed rights: civil → political → social → group Types of rights: Civil and political Social, cultural, economic Group/collective UN Charter 1945: Language focused on ‘reaffirm faith in fundamental human rights’ of rights – reflects post world war context where trying to bring back right protection. HR atrocities inn WWII were a galvanising force that would help ensure a new approach for international law after 1945 – prompt first steps of a modern international law of human rights. International Bill of Rights had politics as an issue as HR had become an ideological weapon between East and West. Concepts of justice: Divine/revelational – divine justice, normally religious. Rational – man-made justice, based on rational efforts by humans – binding social agreements, constitutional and laws – civic people making agreements – standard justification of HR today – because humans are born with dignity, they are entitled to basic respect and humanity. Moral justifications: Protection of human equality (equal moral and legal status) and dignity. Non-discrimination. Respect of individual autonomy. Human dignity: Inherent value of every person irrespective of race, sex etc – respectful treatment according to HR (autonomy, privacy, liberty) – minimum standard of health and social care – everyone should live and be treated in dignity (includes criminals treatment in prison) – not always clear what is the most dignified way to treat 3 people e.g. vulnerable groups (children, learning difficulties) may need different treatment to account for factual differences in circumstances. HR is normative demand for dignified treatment of all human beings. UDHR 1948: dignity mentioned in preamble and article 1. Kant (German philosopher) – everything apart from dignity has a price as this is priceless; it cannot be measured in economical terms. UN HR Covenants 1966: preambles include dignity. IMPORTANT WHEN BALANCING RIGHTS AS HUMAN DIGNITY HAS TO BE A CONSIDERATION. Universal Declaration of Human Rights: Human dignity – art 1 and 2 Civil liberty rights – art 3-19 (life, liberty, security, fair trial, freedom of thought and expression, privacy, property rights) Political, social, economic rights – art 20-26 (political participation, social security, work, rest and leisure, adequate standard of living, food, housing, medical care, education…) Communal and cultural rights – art 27-28 (participation in cultural life, protection of moral interests, social and international order which realises rights). List of rights considered as minimum conditions for dignified life (life, freedom from slavery/torture, judicial rights, equal legal protection, privacy family life, freedom of movement thought assembly expression, social security work, standard of living etc) Holistic HR philosophy based on notion of equally important and interrelated human rights. Protection of freedoms is seen in preamble ‘promote social progress..’. Interdependence and indivisibility e.g. right to education supports other aspects of life e.g. participation in society. → raises issues such as is the right to life really protected if people lack access to healthcare, housing and food? And if you are starving and uneducated how can you express and participate in society? DONNELLY: UD model treats internationally recognised HR as an indivisible structure of rights in which the value of each right is significantly augmented by the presence of many others. ICCPR – International Covenant on Civil and Political Rights Life, no torture/degrading treatment/punishment no slavery, freedom of assembly etc. China not ratified. ICESCR – International Covenant on Economic, Social and Cultural Rights Work in fair conditions, form trade unions, healthcare, education, social security etc. US not ratified. *Cold war divide – two separate conventions reflects failure of respect to holistic interpretation/philosophy of UD, debates about which are most important or real HR. socio- economic rights still questioned and marginalised (political rather than legal criticism). 4 BUT Vienna Declaration and Programme of Action (part1, para 5) – all HR are universal, indivisible and interrelated…same emphasis…must be treated in a fair and equal manner. Aspects of rights: Most contain positive and negative obligations e.g. right to health, freedom from torture and discrimination. Most rights are interdependent and depend on others (life, health, food). ESC Rights and minimum level of welfare – AROSEMENA: ‘human rights aim to secure a minimum level of welfare for individuals…the importance of this welfare aspect of human rights cannot be understated’. Enforcement: Ntlama: the ‘real test for commitment to human rights norms lies in the mechanisms that are put in place for their enforcement’. Treaty bodies which monitor: UN (international) – HRC, CESCR. Europe – ECtHR (binding decisions), ECSR. Expert committees which monitor review periodic state reports, receive complaints, issue general and state-specific recommendations (UN). CESCR (Committee on Economic, Social and Cultural Rights) – concluding observations, evaluate domestic legislation, shadow reports, receive complaints, inquiries into rights violations. Operation of certain UN HR institutions (e.g. Human Rights Council) has to be seen in a political context. OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (2008) (IN FORCE FROM MAY 2013): No communication shall be received by the Committee if it concerns a State Party to the Covenant which is not a Party to the present Protocol (Art 1). Communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party (Art 2). The Committee shall not consider a communication unless it has ascertained that all available domestic remedies have been exhausted. This shall not be the rule where the application of such remedies is unreasonably prolonged (Art 3). The Committee may, if necessary, decline to consider a communication where it does not reveal that the author has suffered a clear disadvantage, unless the Committee considers that the communication raises a serious issue of general importance (Art 4). After examining a communication, the Committee shall transmit its views on the communication, together with its recommendations, if any, to the parties concerned (Article 9). National Implementation (Domestication): If state parties and domestic actors do not take action, human rights treaties will hardly lead to social change. 5 Legislation, policies, resource allocation, co-operation with civil society, training of judges and professionals, education of the population, … Accountability mechanisms: judicial, quasi-judicial, administrative, political, social Social pressure from within, in addition to international pressure Social pressure (international and domestic) is both very important. State obligations: persons of state, all organs and branches of state 1. Respect – refrain from interfering with enjoyment of rights – negative aspect. 2. Protect – take measures to prevent non-state actors from interfering with the enjoyment of the right – positive aspect e.g. implementation of regulations. 3. Fulfil – adopt appropriate legislative, administrative, political, budgetary and other measures to ensure full realisation of the right – positive aspect e.g. take actions to create, maintain and restore. Did the state take proper and sufficient steps to fulfil the right in question? Margin of Appreciation: Human rights law provides some space for each state to interpret and implement rights as seen appropriate and suitable considering respect for democratic principles and domestic conditions Acknowledging that human rights can be implemented in different ways that are all acceptable Can be seen in the case law of the European Court of Human Rights (ECtHR): The Court sets limits (e.g. non-discrimination), but seeks to avoid too detailed regulation of state behaviour and legislation. Special character of HR: Unlike traditional international treaties, human rights obligations primarily concern the relationship between states and individuals, not reciprocal commitments among states. Human rights obligations are unilateral and non-reciprocal, meaning a state's adherence does not depend on other states' compliance. Human rights treaties aim to establish universal standards, applying erga omnes (towards all) and carrying a moral imperative often seen as pre-existing their legal recognition. Non-revocable: states commit unilaterally to uphold rights, not in exchange for other states’ compliance. Introduces moral and normative elements into law, challenging classical international law's neutrality and sovereignty-first framework. Reservations (unilateral statement made by a state to exclude or modify the legal effect of certain provisions of a treaty) are contentious as they can dilute universal standards and undermine the treaties’ purpose – can also introduce cultural or domestic interpretations that conflict with universal standards. Supervisory bodies play a critical role in ensuring reservations comply with the "object and purpose" of treaties, reflecting the normative weight of these obligations. 6 Unlike traditional treaties, human rights treaties allow individuals to petition international bodies, reflecting their focus on protecting individuals rather than managing inter-state relations. States are required to periodically report on their compliance to supervisory bodies, irrespective of disputes or litigation. Human rights obligations are often described as "objective," meaning they are not contingent on the reciprocity typical of other treaties. UNIVERSALITY AND RELATIVITY. JUSTIFICATION AND CRITIQUE. UDHR 1948: Founding HR document – global influence – followed by binding conventions across the world – holistic HR – everyone entitled (art 2) – basic normative standard. Rights included are a minimum standard for all societies e.g. life, movement, no torture, privacy, family. Should HR be implemented everywhere across the world? Normative assumption = human rights are universal, should be respected globally – no universal culture so may be some violations within culture which are related to cultural values/social structures – cultures are always changing → difficult to talk about HR. The West – HR mainly developed here – liberal tradition with emphasis on individual freedom/autonomy, equality, democracy – but west also associated with slave trade, capitalism etc – west still has HR challenged even though originated from there e.g. no culture is completely free from gender discrimination e.g. FGM in Africa, culture attitudes in west. Concept of HR is common but does not mean it is actively supported everywhere. HOWARD: ‘The society that actively protects rights both in law and in practice is a radical departure for most known human societies. Human rights tend to be particularly characteristic of liberal and/or social democratic societies.’ HR justifications: Needed as HR face criticisms of being self-justifying or treated as dogmatic. Justification is necessary to reinforce their authority and relevance in theory and practice. Moral justifications and critiques of human rights are inherent to human rights law and legal reasoning Moral Justifications: Provide reasons for action based on moral principles. Legal Justifications: Explain human rights as legal norms while recognizing their moral foundations. Legal human rights are fundamental and general moral interests recognized by the law as sufficiently important to generate moral duties. Generally speaking, moral rights can exist independently from legal rights, but legal rights recognize, modify, or even create moral rights by recognizing certain moral interests as sufficiently important to generate moral duties. As such, legal rights are always also moral 7 rights, whether by recognition (as such or with specification) of pre-existing moral rights or by creation of moral rights. Status-Based Justifications: Grounded in concepts like equality and dignity. Objective vs. Prudential Justifications: Objective reasons (interpersonal fairness) take precedence over prudential ones (pragmatic benefits). Moral grounds for justification are equality and dignity: o Equality: Seen as equal moral status, emphasizing mutual respect and entitlement to basic moral rights. o Political equality: matters in legal order and HR law – equality → political equality = formation of HR. o Dignity: OFTEN USED AS A PLACEHOLDER IN MORALITY. A foundational but often redundant concept, overlapping with equality in rights-based frameworks. International human rights law (e.g., preambles of the Universal Declaration of Human Rights) recognizes moral justifications but relies on legal norms to specify duties. Justifications guide the interpretation and enforcement of rights by courts and institutions, balancing individual and collective interests. Pluralism in Justifications: Advocates for multiple justifications to reflect diverse moral traditions and enhance legitimacy. Addresses potential conflicts between different justifications e.g. instrumental and inherent justifications. Instrumental justifications account for one human right by reference to its relationship to others, thus making the former a more fundamental rights HR starting point: American Declaration of Independence: ‘all men are created equal…certain unalienable rights…life, liberty, pursuit of happiness’. French Declaration of the Rights of Man and of the Citizen: ‘men are born and remain free and equal in rights’. Natural law theory: Life, liberty, security, property = certain individual rights stated as self-evident, universal and inalienable – link to human nature Social contract theory: free, rational and autonomous individuals surrender to the state, while the state takes on the obligation of protecting their rights. Equality – started for men, eventually grew to women and slaves. Locke – social contract theory ‘where there is no law, there is no freedom’ – ‘we are born free as we are born rational’ – based on philosophical development not reality. Strong criticism e.g. Betnham who emphasised that law was written, not philosophical and this should be the focus – ‘natural rights is simply nonsense’. Criticism stopped after world wars when HR were reborn. 8 Are HR universal? Discussion framed against human rights. Universal or culturally specific? Inalienable or socially constructed? Absolute or conditional? Different theories respond differently. Depends on understanding of HR – theories of universalism and cultural relativism Further reading: Dembour (2022) pp. 43-65 Important today as there are implications for the legitimacy of HR. Some people still claim that some rights are not part of culture (often for women and minority groups) → how do you respond if it is accepted that HR are justified by basic values (human dignity, equality) → have to link to what is culture to understand why HR apply. Complete universality is not realistic because of cultural differences. Culture: Culture (UNESCO Declaration on Cultural Diversity): collective identities – inherited ideas, beliefs, values, knowledge – ways of life – distinctive spiritual, material features. Some are more focused on individual rights. Some emphasise duties. Right-cultures: individual focus – western, US, Canada Duty-cultures: family, group, community focus – Asian/Islamic/Jewish/African. HOFSTEDE – individualism: societies in which the ties to the individual are loose, everyone is expected to look after themselves. HOFSTEDE – collectivism: people are integrated into strong cohesive ingroups which protect them in exchange for loyalty. Traditional societies (western and non-western) have a stronger focus on duties and collective values than individual rights. Modern societies typically have a stronger focus on individual needs and rights. How should culture be taken into account? 1. Universalism: CRANSTON – top down approach to HR. Strict universalism does not include much tolerance for cultural differences/approaches. 2. Cultural pluralism = right understood in a cultural context: DONNELLY, ENGLE MERRY, HELLUM – local norms/customary laws will normally evolve in interplay with regional and global norms, including HR. 3. Cultural relativism = no universal standard to measure cultures: BOAS, HERSKOVITS – HR seen as cultural imperialism. Scale: Universalism (most strict) → cultural pluralism (middle approach) → cultural relativism (opposite to universalism.) Duties: community is important. UDHR (Art 29.1): everyone has duties to community. UDHR (Art 29.2): limitations on exercise of rights so that other people’s rights are respected. ICCPR and ICESCR preambles: the individuals have duties to other individuals and the community. 9 African Charter on Human and People’s Rights: art 27-29 – duties of the individual towards family/society/the State/international community – respect others without discrimination – preserve harmonious development of the family, respect parents at all times, pay taxes. The African Charter on the Rights and Welfare of the Child 1991: A31 – responsibility of the child – every child has responsibilities towards his family and society, the State and other legally recognized communities and the international community, subject to age has duties such as respect family and serve his national community by placing his physical and intellectual abilities at its service. The Cairo Declaration on Human Rights in Islam 1990: human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to God the Most-High’ – ‘believing that fundamental rights and universal freedoms is Islam are an integral part of the Islamic religion. Art 6: woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform – the husband is responsible for the support and welfare of the family. WATT 1968: rather than emphasizing rights, focus is put on the fact that God has commanded others to act, or refrain from acting, in certain ways. MAYER 1999: Islamic thought tend to stress not the rights of individuals, but rather their duties to obey the law of God. Universalism: International human rights represent universally valid norms – should be applied and implemented globally – instruments speak in universal terms so they can protect everyone. Regional instruments express HR values but have some problematic aspects when compared to international standards → tension seen in current debates of gender equality. Express cultural diversity. Universality of HR is a common core – universal consensus at the conceptual level to give space for some differences in interpretation and implementation (limits). UDHR preamble: HR is a ‘common standard of achievement for all peoples and all nations’. Justification: Protection of human dignity is relevant in all cultures – HR respond to basic needs everywhere. Many states are oppressive and neglect basic human needs – individuals need to be protected by international HR law. Some cultural practices are harmful and incompatible with HR e.g. FGM. Some states use culture as justification for HR violations. Cultures are not static – some use HR as a way of improving situation of disadvantaged groups. Cultural relativism: All human societies have moral principles and notions of dignity, but content may vary → rights and duties depend on the cultural context. 10 Lack of valid cross-cultural norms to support idea of universal HR – problematic perspective as no universal culture. Justification: Criticism from focus on how communities are organised (especially traditional communities). No culture or state is justified in attempting to impose on other cultures or states their own ideas or cultural values. HR instruments and universality represent cultural imperialism and the destruction of cultural diversity. Respect for difference and calls for tolerance is important in light of Western colonialism and ‘civilising’ efforts around the globe. Cultural pluralism: HELLUM: Seeks to define a space between universalism and relativism and between individualism and collectivism. Places conflicting values within a cultural context while simultaneously giving room for dialogue and change. Balancing universality and cultural diversity: HR instruments are ratified by states from all over the world = universally relevant. HR should respond to basic needs, consider power relations, and protect individuals from harmful practices. Should be implemented and applied with appropriate consideration for cultural and collective values (acceptability). If we accept that HR are justified as relevant universal norms/standards, how do we understand and apply them in different cultures and societies? Interpretation, context, balancing. Challenges to Universality: 1. Moral Relativism: o Critics argue that international human rights reflect a narrow, often Western, value system imposed globally. o Moral relativists claim these norms lack legitimacy in cultures or societies with differing values. 2. Forms of Relativism: o Strict Moral Relativism: Asserts that morality is entirely culture-dependent. o Epistemological Relativism: Questions the ability of human rights frameworks to accommodate diverse perspectives. o Social Relativism: Highlights the need to contextualize human rights to local and historical circumstances. 3. Cultural and Political Contexts: o Collectivist traditions may prioritize the group over the individual, conflicting with the individual-centric nature of some human rights norms. 11 Rights, limits and interpretations: Very few rights are absolute – most countries agree in concepts e.g. free speech but regulated differently, see protesting limits in the UK. ICCPR art 19: everyone shall have the right to freedom of expression but there are some restrictions to ensure rights of others are protected e.g. cannot scream fire in a crowded theatre. The right to health: ICESCR Art 12.1: right of everyone to the enjoyment of the highest attainable standards of physical and mental health → relative standard which allows for variations in resources and different understandings of health, but there can still be violations regardless of country e.g. denying emergency services. Agreement about the core substance of the right. Disagreement: scope of the right (services – how much, what kind), domestic implementation (location of clinics e.g. in rural areas), cultural practices (circumcision etc). Conflicts of rights in the context of culture, resources and development: Freedom of expression v right to be protected from racist, degrading or immoral expressions. The right to life, health, adequate standard of living v autonomy e.g. death penalty, euthanasia. Gender equality and non-discrimination v right to culture and freedom of religion. Different contexts in different societies e.g. right to life understood differently – death penalty in US but not UK. Resource relativity and welfare duties of states: ICESCR Art2. State parties must do all they can in line with the resources available to them – rights must be exercised without discrimination – developing countries may determine to what extent they would guarantee the economic rights given to non-nationals (have to consider HR and national economy). Balancing universality and resource constraints: ICESCR Art4. ‘the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.’ Margin of Appreciation: HR law provides some space for each state to interpret and implement rights as appropriate and suitable considering respect for democratic principles and domestic conditions. Acknowledging that HR can be implemented in different ways that are all acceptable. Can be seen in the case law of ECtHR – the court sets limits e.g. non-discrimination, but seeks to avoid too detailed regulation of state behaviour and legislation. 12 International Human Rights (both universal and relative): Should give effective protection of human dignity and respond to basic human needs Is ratified by states from all over the world, and is therefore universally relevant Should be implemented and applied with appropriate consideration for the socio- cultural context, level of development, and available resources The specific interpretation and application of human rights may differ across cultures and different contexts, but cannot lose sight of the basic goal: Protection of human dignity and basic individual need EQUALITY AND NON-DISCRIMINATION Global standards: internationally shared values of how to treat people with dignity and respect. Rights cover individual liberties and freedoms, access to welfare and non- discrimination. Individual liberties and freedoms (from torture, unfair trials, freedom of expression). Access to welfare goods (food, housing, health services, education). Non-discrimination → if states ratify, they cannot delay implementation of non- discrimination. States have positive obligations to respect, protect and fulfil rights in this regard. Specialised treaties e.g. CEDAW focus on specific types of inequality. Most important challenge is to ensure everyone can enjoy right to equality. UN Charter 1945: Reaffirm faith in fundamental human rights – dignity and worth of humans – equal rights of men and women – establish conditions where justice and respect for the obligations that arise – promote social progress and better standards of life. Move towards global civilisation. UDHR 1948: Art 2 No discrimination with listed grounds and open-ended category which link to other categories which are not explicitly covered. Concept of equality and non-discrimination has evolved since this. ICESCR, ART 2(2): state parties guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex or other status (includes disability and health status). General comment says ‘the labour market must be open to everyone under the jurisdiction of States parties’. Immediate non-discrimination: ICESCR Art 2(2): state parties guarantee rights exercised without discrimination – if relevant and ratified, non-discrimination should be implemented straight away. It is 13 an immediate and cross-cutting state obligation, covering direct and indirect discrimination. CESCR Committee, General Comment No 3, 1990: The non-discrimination principle in the ICESCR imposes immediate state obligations towards individuals or groups. A core obligation states must make effective once the treaty enter into force State obligations can require a structural change at a social level to prohibit discrimination. Prohibited grounds of distinction: 1. General – guarantee of equality – all equal before the law. 2. Exhaustive – list of prohibited grounds – sex, race, gender, etc. 3. Open-ended – list – prohibits discrimination of ‘any kind’. Intersectional discrimination: discrimination based on a combination of grounds or characteristics e.g. sex, race. Overall legal goal: secure both formal (formal treatment) and substantive equality (looks at the outcome of treatment, are there equal outcomes). MOECKLI: prohibition of direct and indirect discrimination, requires states to take effective measures to secure formal and substantive equality. Direct discrimination: Discrimination, exclusion or other differential treatment based on prohibited grounds (sex, race, religion, etc). When an individual is treated less favourably than another in a similar situation for a reason related to a prohibited ground – can be problematic due to presumption of comparable situation e.g. some detrimental actions only affect certain groups – FGM and denial of contraception for women. Immediate state obligation to prohibit direct, unjustified discrimination. ICCPR Art 26: ‘all persons are equal before the law and are entitled without any discrimination to equal prohibition of the law’ – applies to any field e.g. work, education, benefits. Zwan-de Vires and Broeks. Formal equality: legal starting point – equals should be treated alike. Emphasis on state neutrality – non-preference for certain groups or individuals. Emphasis on individualism – equal treatment regardless of group membership. Limitations: State regulations on characteristic dentitions (income, age etc) can be problematic. Formal equality/equal treatment = fair outcome? Are people usually treated based on formal equality or do state regulations differentiate e.g. based on income, age, immigration status? Reasons behind why some people are treated differently – fair? When does unequal treatment amount to discrimination? Can be justified due to relevant differences in social situations, unlike discrimination. Different treatment is not necessarily discrimination e.g. affirmative action. 14 Unequal treatment or unequal legal protection, which is not justified, is discriminatory. Key question – is differential treatment justified? Debated for affirmative action, can be disagreement, not always obvious what is justified – e.g. in Norway if workforce is 50/50 men and women, affirmative action strategies are stopped as no longer justifiable as equality already achieved. Substantive equality: Goal of non-discrimination is to achieve substantive (de-facto) equality, enjoyment of equality. Substantive equality is the goal, formal equality is the starting point. CESCR General Comment 2009: regulations or treatment which do not take into account relevant differences (e.g. age, gender) may be discriminatory. Merely securing equal treatment will not always ensure de facto/substantive equality as envisaged by the non-discrimination provisions. Use this in essays. Equality in opportunity: removal of barriers, training, assistance – allows competition on same terms. Addresses historical advantages to ensure equal opportunities and outcomes. Equality in outcome: equal enjoyment of social goods (education, political participation, work). CESCR General Comment 2009: effective enjoyment of ESC rights often require effective measures to prevent, diminish and eliminate conditions and attitudes which constitute discrimination of certain groups suffering historical or persistent prejudice or marginalisation e.g. translation services for minorities. ICCPR Committee on gender equality general comment 2000: the state must not only adopt measures of protection, but also positive measures in all the areas so as to achieve the effective and equal empowerment of women. Positive action = special measures of protection. Indirect discrimination: Arguably most common form of discrimination, experienced differently by different groups. ESCR Committee general comment 2009: when apparently neutral laws, policies or practices have a disproportionate impact on the exercise of covenant rights. DH and others v Czech Republic ECtHR. Purohit and Moore v The Gambia. Different treatment or result: ECtHR Belgian Linguistics Case – two-step test: can the differences in treatment be justified? 1. Does the state pursue a legitimate aim? 2. Is the different treatment or outcome proportional? SH and Others v Austria 2010. 15 Insufficient grounds to justify different Suspect grounds for different treatment treatment Administrative inconvenience Race, ethnicity, sex, religion – a Longstanding tradition strict standard of scrutiny if these Prevailing social views are reasons for different treatment Stereotypes Nationality, sexual orientation, Local convictions disability, age Normally seen as direct discrimination Disability discrimination: CRPD Art 2: “Discrimination on the basis of disability" means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation. Glor v Switzerland 2009 ECtHR added disability to list of suspect grounds in ‘other status’. State’s MOA is ‘greatly reduced’ in disability discrimination cases. Thlimmenos v Greece. Price v UK. ARNARDOTTIR: providing lifts, wheelchair access, information by sign language etc is the only was of such accommodation can non-discrimination truly prevail. Reasonable accommodation is key – about a certain balance between the parties. Only accommodation that is reasonable is a non-discrimination duty. What is reasonable is a concrete case-by-case assessment. CRPD Art 2: reasonable accommodation means necessary and appropriate modification and adjustments – not imposing a disproportionate or undue burden – exercise rights on an equal basis. Relevant factors for reasonable accommodation in employment – UNDP guidance: cost, reasonable timeframe, availability of funding, benefit to more than just relevant individual, impact on the operation if the office, anticipated duration of employment relationship. Types of reasonable accommodation: job design, flexible working arrangements, sign language interpretation, accessible premises and transportation, not reasonable to do nothing/reject any kind of accommodation. Gender equality: Context – 1960s – gender equality growing issue. Gender discrimination and social change (social values, structures and norms): how to implement gender equality and non-discrimination in patriarchal societies where violation of women’s rights is a common and integral part of the culture? UDHR preamble: equal rights of men and women. UDHR Art 2: no distinction based on sex. 16 The principles of non-discrimination and equal righst of men and women are established in the ICCPR and ICESCR covering: formal and substantive equality, direct and indirect discrimination. o ICCPR Art 3: ensure the equal right of men and women to enjoyment of all civil and political rights. o ICESCR Art 3: ensure the equal right of men and women to enjoyment of all economic, social and cultural rights. ▪ Equal enjoyment – doesn’t necessarily mean equal treatment. CEDAW 1979 – Convention on Elimination on All Forms of Discrimination Against Women. Needed separate convention for women because gender inequality still existed even though other instruments exist. CEDAW: 188 state parties, many reservations, targets culture and tradition as influential forces that shape gender roles and family relations – countries that have ratified are legally bound to put provisions into practice – states have to submit national reports (every 4 years min)/ CEDAW preamble: concern that despite various instruments, extensive discrimination against women continues to exist and other discussion. Human rights as social reform – transformative. CEDAW Article 1: broader definition of discrimination – any distinction , exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status. CEDAW Article 2 – gradual reform: state parties agree to ‘take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women’. CEDAW Article 3: state parties shall take in all fields appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men’ e.g. protect and facilitate women’s access to education, work,, health services. CEDAW Article 5a – measures to change cultural patterns: state parties shall take all appropriate measure to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices…and all other practices which are based on the idea of inferiority of the superiority of either of the sexes or on stereotyped roles for men and women’. - Historically women have been excluded from certain jobs. - Addressed social patterns and stereotypes that are prevalent in society. CEDAW Article 11(1) – work and formal equality: all appropriate measured to eliminate discrimination in field of employment to ensure right to work as inalienable right of all humans, right to the same employment opportunities. CEDAW Article 11(1) – work and substantive equality: prevent discrimination against women on grounds of marriage or maternity and ensure effective right to work – prohibit dismissal on these grounds and introduce maternity leave with pay or comparable social benefits without loss. CRPD Art 6 – women with disabilities – example of intersectionality. 17 Gender differences relevant to economic and social rights globally: Majority of people living in absolute poverty are women. Most of tidal female work burden is on unpaid activities. High maternal mortality in many developing countries. Domestic and sexual violence against women. Lack of access to sexual and reproductive health services, including safe abortion. Inequality of women is deeply embedded in history, tradition and culture = cultural obstacles to gender equality. Important HR concerns of women: Health – gender based violence, maternal mortality, access to health services etc. Education and work – access, distributive justice in income etc. Property and ownership – right to own land and property, inheritance, security of home. Status in the family – gender roles, responsibility for family members, distribution of benefits etc. CEDAW: benefits. Addresses need for social change. Acknowledgement of existing discriminatory social structures and practices. Gender specific – rights specifically formulated to directly address women. Holistic – covers civil, political and social rights. Transformative – addresses need for social change, targets socio-cultural obstacles to substantive equality. CEDAW: critiques. Strong reliance on comparison with men – limited recognition of specific sexual and reproductive rights for women (abortion, fertility control etc). No reference to discrimination between different groups of women (married v unmarried, heterosexual v lesbian). No provision directly based on violence, only gender-based violence as discrimination. Assumption of normative married heterosexuality. Limited acknowledgement of multiple and intersectional forms of discrimination. State obligations: Respect, protect, fulfil. Respect: states refrain from discriminatory action and ensure that all their laws and practices comply with right to non-discrimination. Protect: duty on states to prevent discrimination by non-state actors – includes comprehensive legislation. Prohibitive measures e.g. laws to prevent discriminatory practices. Positive actions: proactive steps like affirmative action or quotas to redress systemic inequalities and ensure substantive equalities. US legal system – have to prove discriminatory intent or purpose to establish discrimination. 18 To some extent, international human rights law requires states to adopt special measures of protection – HRC: the principle of equality sometimes requires state parties to take affirmative action in order to diminish or eliminate conditions which cause or held perpetuate prohibited discrimination Challenges and developments: Intersectionality: Recognizes the compounded discrimination faced by individuals due to overlapping identities (e.g., race and gender). Structural Discrimination: Tackling ingrained societal inequalities requires transformative measures, not just individual remedies. Emerging areas include addressing discrimination based on disability, sexual orientation, and age. Summary: Formal equality (equal treatment) = starting point. Substantive equality may require additional positive measures to combat specific challenges or disadvantages. Transformative equality: requires states to adopt appropriate measures to change and transform discriminatory socio-cultural patterns and practices. Achieving true equality requires combining formal and substantive approaches, balancing fairness in treatment with efforts to rectify systemic disadvantages. States must actively implement and enforce anti-discrimination policies while adapting to evolving norms in society. RIGHT TO HEALTH UN Sustainable Development Goal 3: ensure healthy lives and promote well-being for all at all ages. Historic background: Health has always been a human concern e.g. industrial revolution and development of modern medicine. WHO 1946: ‘right to health’ formulation in the preamble of its constitution – first formulates right to health after WWII. UDHR Art 25: everyone has the right to a standard of living adequate for the health and well-being of himself and his family. Health protection today an important part of all modern societies but still many lack adequate health services (even in rich countries, vulnerable groups). Health disparity is an increasing problem in Europe. Currently 1/3 of world’s population lacks access to essential medicine – 300,000 women die every year due to pregnancy complications and lack of basic care (99% in developing countries) - WHO. 19 Content of right: No right to be healthy – right to access health services, underlying preconditions for health, and non-discrimination. Freedoms and entitlements: o Freedom from harmful interferences – torture, harmful practices etc. o Sexual and reproductive freedom – access to sexual and reproductive health services. o Access to a system of health protection which provides equal opportunity for people to enjoy the highest attainable level of health. Underlying preconditions: safe drinking water, adequate sanitation, healthy environmental and occupational conditions, access to health education and information. Negative aspect: freedom from unjustified coercion, torture and other harmful actions (physical integrity) e.g. no forced sterilization/abortion, coercive treatment, non-consensual treatment, harmful practices – fgm. International codification: Refer to both health care and underlying conditions for health (safe water, adequate nutrition). WHO Constitution 1946. Universal Declaration Art 25 – everyone has the right to a standard of living adequate for the health and well-being of himself and of his family…all children shall enjoy the same social protection. ICESCR Art 12 – right of everyone to the enjoyment of the highest attainable standard of physical and mental health, includes those which are necessary for reduction of infant mortality, improvement of all aspect of environmental hygiene etc -relative standard with non-discrimination principle. o Highest attainable standard depends on socio-economic conditions and available resources in the state, individual factors (biology, gender etc), state obligations (core content = immediate, progressive realisation = over time). o ICESCR Art 2(1) – progressive realisation: ‘view to achieving progressively the full realisation of rights’ – obligations of conduct, have to be proactive. CEDAW Art 12 – all appropriate measures to eliminate discrimination against women in the field of health care...to ensure equal access to healthcare including family planning, pregnancy and post-natal period – emphasis on women’s reproductive health – addresses particular needs of women = non-discrimination. CRPD Art 25 – persons with disabilities have the right to enjoyment of the highest attainable standards of health without discrimination on the basis of disability. CRC Art 19 – protection of children against physical and mental abuse, maltreatment or exploitation, including sexual abuse. CRC Art 24 – right of the child to highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health – state has to pay special attention to children as they are vulnerable to ill-health if neglected. Biomedicine Convention Art 3 – parties, taking into account health needs and available resources, shall take appropriate measure with a view to providing…equitable access to health care of appropriate quality – only Europe – equitable, link to substantive equality. 20 EU-Charter of Fundamental Rights Art 35: everyone has the right of access to preventative health care and the right to benefit from medical treatment under the conditions established by national law and practices – everyone has access = more individualised. European Social Charter, Art 11: state parties must take appropriate measures designed inter alia e.g. remove as afar as possible the causes of ill-health – state obligations to take responsibility for health – not about fulfilling a certain goal – more about measures which should be put in place. Authoritative sources: General Comment No 14 (2000) by the UN Committee on Economic, Social and Cultural Rights General Recommendation No. 24 (1999) by the CEDAW Committee General Recommendation No. 4 (2003) by the Committee on the Rights of the Child World Health Organisation (WHO): ‘The persistence of deep inequalities in health status is a problem from which no country in the world is exempt’. Constitution – gives health definition rather than a legal claim – starting point for legal requirements: ‘Health is a state of complete physical, mental and social well- being and not merely the absence of disease or infirmity. The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social condition’. Objectives of the right to health: Emphasis on state obligations to secure health. Respect for and protection of human life, dignity and well-being: promote individual health, access to health determinants (clean water, nutrition), access to adequate healthcare service, individual responsibility. Promote state responsibility for individual health and effective public health policies and measures. HUNT: promote sustainable development, reduce poverty and increase economic prosperity. State obligations: Respect: absence of harmful action, non-discrimination. Underlying preconditions for health (health determinants). Protect: third parties’ actions. Protect and fulfil legislation, programs, education and services. Core content v progressive realisation. CESCR Committee: secure access to services and health determinants – system of health protection – timely and appropriate healthcare – underlying determinants of health – enjoyment of facilities, goods, services, and conditions necessary for the realisation of the highest attainable standards of health – AAAQ requirements (availability, accessibility, acceptability, quality). 21 Core content of state obligations: a set of elements that must be guaranteed immediately and under all circumstances irrespective of resources – should be realised immediately (remainder can be progressive) – cannot be delayed – no justification for any delay. CESCR Committee: minimum essential level includes essential medicines and essential primary care – reproductive/maternal health care are priority – even in times of severe resource constraints, vulnerable must be protected – a state can never justify non-compliance with core obligations = non-derogable. ICESCR Art 2.1: strict requirement of active efforts by the state to secure health. Relevance of state development and resources: Core content. Progressive realisation. Country-specific benchmarks = reasonable standards on goals based on state development level – relativity due to differences in available resources. Universality link to core content – health and state obligations is universal at basic level but progressive realisation of right is not, this depends on the wealth and resource status of the state. MOA: Every state has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances – highest attainable standard of health requires adoption of national strategy and the formulation of policies and corresponding right to health indictors and benchmarks – the national health strategy should also identify the resources available to attain defined objectives, as well as most cost-effective way of using resources. AAAQ requirements: Appropriate health services, facilities and underlying health determinants, must be AAAQ. Availability: about quantity, has to be sufficient to serve the population – precise nature may vary depending on factors like development and available resources. Accessibility: non-discrimination in who can access the health service – physical/economic/information accessibility – discrimination could be in law or in practice through social structures/barriers. o Norway: criticised as irregular migrants only have access to emergency healthcare. o Mehmet Şenturk and Bekir Şenturk v. Turkey Acceptability: health services must be respectful of medical ethics and be culturally appropriate, sensitive to gender and life-cycle requirements, respect confidentiality, designed to improve health status of those concerned. o CEDAW: acceptable services are those which are delivered in a way that ensures that a woman gives her fully informed consent, respects her dignity, guarantees her confidentiality and is sensitive to her needs. o ICESCR Committee on Norway: concern about reports indicating the high incidence of violence against and abuse of older persons living both in domestic and institutional settings. High proportion of people with mental- health conditions in prison and their limited access to care. 22 Quality: health services/staff must be of a good medical and scientific quality – skilled medical personnel – scientifically approved and unexpired drugs and hospital equipment. o Norway state challenges – generally have a solid public health system and regulation of rights but poor health and treatment of certain groups – future problem in lacking 5,000 nurses. o State obligations: obligations which directly conflict with the right to health – all branches of state – positive and negative obligations – respect, protect, fulfil. Interconnected to other rights: Health is precondition for the enjoyment of other rights e.g. life, education, work. Other rights are preconditions for the right to health e.g. education, food, housing. Case law: Marangoupoulus v Greece – ESC A11. European Roma Rights Centre v Bulgaria – ESC A11. INTERIGHTS v Croatia – ESC A11. FIDH v Greece – ESC A11. Oneryildiz v Turkey – ECtHR, right to life. Health and non-discrimination (core obligation): ICESCR Art 2(2): rights must be exercised without any discrimination – duty of non- discrimination for health must be respected by all states. E.g. previous Taliban rule had prohibition for male doctors to treat women when no female doctors. ICCPR Art 26: all persons are equal before the law and are entitled without discrimination to the equal protection of the law. A state may violate the right to health if it structurally fails to offer adequate health services to certain segments of society, such as prisoners, illegally residing immigrants or women. Groups that often face discrimination: disabled, prisoners, refugees, older, women and children, ethnic minorities. 23 CEDAW Committee: measures to eliminate discrimination against women are considered to be inappropriate if a health care system lacks services to prevent, detect and treat illnesses specific to woman. Summary: Broad concept of the right to health interdependence of rights. Negative and positive aspects of rights and state obligations. State obligations: respect, protect, fulfil. Core obligations must be realised immediately. Progressive realisation of the right to health. Vulnerable groups. HEALTH PROTECTION, PRIVACY AND LEGAL CAPACITY The welfare state and the protection of civil and social rights: Objective of securing benefits and protecting civil rights. Health sector has been clarified a lot. The welfare state: advancement of social goals, including health protection – protection of civil liberty and autonomy rights. Health protection: access to adequate services, health preconditions – respect for individual autonomy, privacy and liberty. General principles of health protection: AAAQ. Protection of human dignity and integrity. o Access to necessary preconditions for health and to adequate services o Equal treatment and non-discrimination o Respect for liberty, autonomy, privacy (part of acceptable service) Central concepts: Liberty: freedom, not being imprisoned or otherwise restricted. Integrity: not being violated (e.g. bodily harm). Autonomy: making decisions based on your own will, values or needs. Privacy: be left alone in your private space (body, home, family, personal information). Human dignity: Human dignity is the fundamental value to be protected by human rights. Kant: while everything has a given price, the human being has an intrinsic value (dignity) → respect for human liberty, integrity, autonomy and privacy. Kant: protecting integrity and autonomy is an important way of protecting human dignity. 24 ICCPR and ICESCR preambles: human rights ‘derive from the inherent dignity of the human person’ → human dignity is the essential value to be protected by all human rights provisions. Dignity is absolute requirement – ‘no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment’ (Art 7 ICCPR, Art 3 ECHR) – Price v UK. ICCPR Art 10 (1): all persons deprived of liberty should still have respect for their inherent dignity. Important as people without liberty are more likely to have rights violated – dignity in prisons and other institutions. Human dignity in health field: A1 Biomedicine Convention – parties shall protect the dignity and identity of all human beings…with regard to the application of biology and medicine. Dignity and legal capacity: Human dignity is not to be equated with individual capacity to exercise autonomy (small children, persons with cognitive illness or impairments). HR is not absolute; have different meanings to different people in different contexts. The right to liberty and security: ECHR Art 5: everyone has the right to liberty and security of person. Exceptions including ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound minds. Similar provision in ICCPR Art 9. Privacy: ICCPR Art 17: freedom from arbitrary or unlawful interference with privacy and family right. ECHR Art 8: everyone has the right to respect for private and family life – no interference – the protection of health or morals is an exception but has to be regulated by law and balanced. Protects confidentiality and physical integrity and autonomy. o ECtHR has interpreted Article 8 and the right to respect for “family life” as encompassing contact rights between parents and children. o Confidentiality: data protection – health information is sensitive so there are strict regulations – Z v Finland. o Physical integrity and autonomy – physical interventions without consent – JW of Moscow v Russia. o Pretty v UK – Storck v Germany – Glass v UK. Autonomy: Autonomy: freedom from coercive measures, individual consent by the patient, informed consent (main rule, exceptions must be regulated by law and justified by strong individual or social needs). Medical experiments based on scientific objectives. Medical treatment based on scientific objectives. 25 Nuremberg Medical Trial and informed consent. Medical experimentation - ICCPR Art 7: no one shall be subjected without his free consent to medical or scientific experimentation – need informed consent for medical consent. Medical treatment and informed consent: Need consent because of potential harm. Biomedicine Convention Art 5: health interventions (all medical acts) need free and informed consent based on appropriate information, including risks – negative and positive obligations. Intervention: patients can be offered experimental treatment (not documented as much), more risky form of treatment as not based on same level of research → this is still classed as intervention. Free and informed consent: no pressure, based on adequate information. Forms of consent: express (oral or written), used in serious or invasive procedures OR implied where patient behaviour indicated consent used in minor or routine interventions. o Oral: most common, express. o Written: used for more serious procedures, express e.g. vasectomy. o Implied consent: commonly sufficient but not for more major interventions. o Form depends on the nature of the intervention. Explanatory Report to Biomedicine Convention: risks related to individual patient – requests for additional information must be adequately answered – patient must be able to weigh up benefits v risks. Right to information: How individual autonomy is preserved. Biomedicine Convention Art 5. Trocellier v France. Emergencies: Do not need to get consent for what is necessary. If something can be delayed it must be so that the patient can consent. Biomedicine Convention Art 8. Previously expressed wishes: Biomedicine Convention Art 9: previous wishes will be taken into account if they cannot at the time state their wishes. Vulnerable groups: Children – adults without capacity to consent (cognitive impairment) – serious mental illness. Tensions between the rights of autonomy, life and health = constant dilemma in the provision of many welfare services as states have an obligation to protect vulnerable groups from rights violations. 26 Children: Biomedicine Convention Art 7: where minor does not have capacity to consent they will have representative – the opinion of minor will be considered as an increasingly determining factor in proportion to age and maturity. Adults lacking consent capacity: Biomedicine Convention Art 6.3: intervention can only be carried out with authorisation of his or her representative or an authority or person/body provided by law – individual must take part in authorisation as far as possible (patient empowerment). Domestic law must determine/specify reasons for deprivation. Serious mental disorder: Biomedicine Convention Art 7: serious mental disorders – interventions (no consent) aimed at treating mental disorder only where, without such treatment, serious harm is likely to result to health. Respect: Refrain from interfering (direct or indirect) with enjoyment of right to healthcare, autonomy, privacy etc. E.g. allowing healthcare institutions to violate the autonomy of patients without sufficient legal basis. Protect: Take measures to prevent non-state actors from interfering with the enjoyment of the right. E.g. adopt regulations and take actions against health providers violating patient autonomy or confidentiality. Beyond health sector – child protection, social services. Fulfil: Adopt appropriate legislative, administrative, political, budgetary and other measures to ensure full realisation of the rights. E.g. facilitate and provide adequate non-invasive healthcare services, educate and train personnel in the best available practices and procedures regarding autonomy and privacy protection. The UK: concluding observations from CESCR Art 10 – protection of the family. Childcare concerns: limited availability and high costs of childcare – present modality of shared parental leave does not necessarily result in the increased participation of men in bearing responsibility for childcare → recommends increase efforts to ensure availability, accessibility and affordability of child care and review system of shared leave to modify and improve equal sharing of responsibilities. 27 Concerns of lack of information specifying how national strategy in gender based violence effectively addresses violence against women and girls with disabilities → requests for this to be considered. Art 11 – right to adequate standard of living, including adequate food, clothing and housing. Poverty concerns: certain groups are more affected or at increased risk of poverty, no specific definition of poverty → take steps to introduce measures to guarantee targeted support. Adequate housing concerns: persistent critical situation for affordability, availability and accessibility of adequate housing partly due to funding cuts, lack of social housing has forced households into private rental centre, Romas facing barriers to access adequate and culturally appropriate accommodation with adequate access to basic services such as water and sanitation → adopt necessary measures to address housing deficit, specific measures to deal with private rent issues, ensure adequate access to culturally appropriate accommodation and stopping sites for Romas. RIGHT TO AN ADEQUATE STANDARD OF LIVING: FOOD, HOUSING, HEALTH, SOCIAL SECURITY. Background and objective: 800 million suffer globally from hunger. 1 billion have substandard or no housing. Homelessness is a growing problem in developed countries Forced evictions Child poverty Objective: Secure dignified living conditions to everyone, especially to children and vulnerable groups. UDHR 1948: Proclaimed as a common standard of achievement (preamble) → global social contract, true protection of rights requires states to take responsibility. Holistic human rights philosophy. ‘determined to promote social progress and better standards of life in larger freedom’. Four freedoms (speech, belief, from fear and want). Art 22: highlights human dignity and social citizenship – ‘national effort and international co-operation…rights indispensable for dignity’. Art 25: highlights states responsibility as people have right to adequate standard of living and wellbeing in the event of unemployment, disability or other lack in circumstances beyond their control. A life in dignity requires an adequate standard of living…This requires a global social contract which combines ESC rights with civil and political rights…this is spelled out in the UDHR and reinforced by subsequent legally binding conventions. 28 Components of the right to an adequate standard of living: ICESCR Art 11: right includes adequate food, clothing, housing, continuous improvement of living conditions – states take appropriate steps to realise this – essential importance of international co-operation based on free consent. Also social contract at national and international level – outlines measures to take. Adequate standard is a relative, not universal, standard. Also changes over time e.g. access to technology. Enjoyment of needs under basic dignity e.g. begging on the street is an inadequate livelihood as an undignified living situation/income source. Meant to protect from difficult situations where there is a lack of choice. Everyone should be able to become a full participant in everyday, without shame or unreasonable obstacles. Everyone should be able to enjoy their basic needs under conditions of dignity. Relative standards of what is adequate is based on individual and state variations – depends on the level of development, culture, traditions and available resources in each state. Have to take appropriate steps to secure the right. Should be above the poverty line of the society concerned and without shame – World Bank. Respect, protect, fulfil: everyone has physical and economic access to buy enough, cultural standards of food is relevant here. AAAQ requirements. Adequate housing: CESCR: more than just shelter – right to live in security, peace and dignity – not isolated – culturally acceptable – legal security of tenure – affordability – habitable. Children – CRC Art 27: child rights for adequate living for their development – parents and carers have primary responsibility – state parties, in line with national conditions and means, should assist and in case of need provide material assistance and support programmes for nutrition, clothing and housing. Adults have primary responsibility to take care of themselves and family members (children). States are obligated to secure basic needs when others cannot provide for themselves or their children = subsidiary duty. Norwegian Constitution – includes work line where people must work as much as they are able to. Duties of the individual: efforts to take care of own and children’s needs, supplemented by social security from the state or other resources. State obligations are less important than an individual’s work or income – state obligations only come into play when individuals cannot or do not manage to secure own standard of living by themselves. State obligations: Nature varies depending on prevailing political factors and nature/level of the state’s economic and social development. ICESCR Art 2: progressive full realisation of rights by all appropriate means with duty of non-discrimination. 29 Core, immediate obligations: satisfaction of minimum essential level of no hunger – non-discrimination – use all appropriate means/efforts to ensure minimum level of food to everyone. CESCR progressive realisation: immediate and progressive steps towards full realisation of rights by all appropriate means – steps should be deliberate, concrete and targeted. Respect, protect, fulfil: people should be assisted so they do not have to rely on social support for the long term. Respect: non-intervention – individual freedom to ensure own standard of living e.g. forced evacuations. Protect: individual choice and use of available resources to satisfy basic needs e.g. protection from dangerous food or housing, corporate malpractice/ Fulfil: provide social assistance where necessary – promote opportunities for individuals to become independent of state support – facilitate through information and education. These duties must balance individual efforts (e.g., earning income) with state intervention in cases of systemic barriers or crises. States are not always as loyal towards housing, food, nutrition compared to securing health services. ICESCR Art 9: everyone has right to social security, including social insurance. o ICESCR Art 10 – social security and social assistance: widest possible assistance to the family, particularly for establishment and care of children – special protection should be accorded to mothers for a reasonable period before/after childbirth, measures for working mothers in this period – no discrimination for children on basis of parentage – children should be protected from economic and social exploitation – child employment at time which is harmful to normal development should be punishable by law – legal limits on age of child labour. Charity is not a duty or right in the welfare state – but this doesn’t mean they are not important. Basic idea in HR framework is that it should be limited so people can have a better life. Vulnerable groups: o Women: equal access to economic resources and health services – traditional/cultural practices often limit autonomy and rights. o Children: states must intervene in parental neglect as they are dependent - reducing child morality. o Indigenous people: often face displacement and loss of ancestral lands, leads to poverty and cultural erosion – require tailored measures. o Dalits and Roma: persistent discrimination undermines access to food, housing and employment – social prejudices and weak law enforcement exacerbate inequality. Food: Important as fundamental to life, health and dignity. Legal Basis: Enshrined in the Universal Declaration of Human Rights (UDHR) Art 25, the International Covenant on Economic, Social and Cultural Rights (ICESCR, Article 30 11), and other treaties like the Convention on the Rights of the Child (CRC) Art 24 and 27. Has to be available (sufficient, quality), accessible (economic and physical access) and culturally acceptable (respect for local dietary preferences and cultural practices). Obligations: respect access by avoiding preventative actions, protection from third- party interference (unsafe food marketing), fulfil through direct aid, social security, infrastructure support – especially in crisis. Water: not explicit in CESCR provisions but ESCR Committee has said adequate water must be available (sufficient and continuous), safe/quality, accessible (economic and physical access). Housing: More than just shelter. Legal Basis: Found in the UDHR (Article 25), ICESCR (Article 11), and regional treaties like the European Social Charter. Key elements: legal security of tenure – affordability – habitability – accessibility – location. Obligations: regulate housing markets to ensure equitable access – provide housing for extremely vulnerable – prevent forced evictions through legal safeguards. Challenges: Globally, 150 million people are homeless, and 1.6 billion live in inadequate housing. Forced evictions disproportionately affect low-income groups and minorities. Big disparities in right, especially bad for those in developing countries. Health: No human right to be healthy. Healthcare and underlying determinants e.g. clean water, sanitation, adequate nutrition. Legal Basis: ICESCR (Article 12), UDHR (Article 25), and other human rights treaties. Key elements: availability (sufficient healthcare services and facilities), accessibility (non-discriminatory, physically accessible, affordable, information access), acceptable (respect for cultural practices and medical ethics), quality (adequate infrastructure, qualified staff, safe medicine). Obligations: prevent violations (e.g. unsafe working conditions and pollution) – ensure equitable distribution of resources – facilitate access for marginalised populations. Challenges: Persistent health inequities due to poverty, malnutrition, and lack of sanitation. Maternal mortality and preventable diseases remain critical issues in developing regions. Norway observations: 2013 – child allowance: monthly amount does not constitute adequate income supplement for families to meet child, related expenses, especially for single-parent families and those in economic difficulty → recommended that monthly amount increases to provide sufficient support. 31 2013 – unaccompanied asylum-seeking children: legislation does not cover children aged 15+ → recommends this extended to all asylum-seeking children to ensure all are entitled to the benefit from services. 2020 – unaccompanied asylum-seeking children: children aged 15-18 still excluded – led to children living in inadequate conditions in reception centres where high incidences of mental illness but limited access to mental health care → recommend age factor be removed so all benefit and timely identification of unaccompanied asylum-seeking children with mental health conditions so they can be provided with necessary care. 2020 – poverty: continued increase in the incidence of poverty, especially children, due to increase in income inequality → recommend to take effective measures to reduce income inequality and intensify efforts to eradicate poverty especially for children – assess effectiveness of existing policies and programmes – identify root cause of child poverty. 2020 – housing: noted measures and national strategy but still some issues – concern of lack of social housing and lack of accessibility for disabled people → recommend increase in low-cost social housing and increase provision of housing accessible for the disabled. Interconnection with Other Rights Economic Rights: Employment and fair wages influence access to food, housing, and healthcare. Social Rights: Education and social security directly impact living conditions. The right to social security is essential when people are not able to secure an adequate standard of living themselves particularly when unemployment due to old age or disability – Art 25 UDHR. Charity irrelevant here because it is not an individual right or state obligation. Cultural Rights: Preservation of cultural practices supports dignity and inclusion. EU + ILO + UNICEF formed the Global Coalition for Social Protection Floors – innovative partnership with some African and Asian states designed to promote better coverage of health, food, social security – social protection is an imperative investment, as well as a human right. Implementation and Challenges Progressive Realization: The ICESCR acknowledges that states may lack resources but requires deliberate, incremental steps to fulfill these rights. Justiciability: Although economic and social rights are sometimes viewed as aspirational, mechanisms like the Optional Protocol to the ICESCR provide avenues for legal recourse. Global Cooperation: International frameworks and organizations (e.g., FAO, UN Special Rapporteurs) play critical roles in monitoring and supporting implementation. Necessary for effective realisation. 32 RIGHT TO EDUCATION AND WORK. Education history: Before Enlightenment: knowledge and practical skills passed from generations in the family and church. 18th century: public interest and regulation of education by parents, Church and other institutions. 19th century: common for states to be responsible for mandatory – 1936 first explicit right to free and compulsory education – 1948 UDHR Art 26. Relationship to other rights: Education is a precondition for the enjoyment of other human rights. Important for civil rights e.g. political participation, freedom of thought, opinion and expression. Other rights are preconditions for education e.g. health, adequate standard of living, freedom of thought, expression and association. Educational freedom – right of parents: UDHR Art 26: parents have right to choose what kind of education for children. Established the right to education as universal, specifying aims like human development. Protocol 1, Art 2 ECHR: no one shall be denied right to education – state shall respect right of parents to ensure education and teach in conformity with their own religious and philosophical convictions → why most countries have different schools based on different outlooks. Education as a first generation right: One perspective. Related to liberal ideas against interference by Church or others – freedom of science, research and teaching. ECHR protocol: no one shall be denied right to education → guarantees equal access to existing schools but does not force states to establish schools. Education as a second generation right: main perspective Social and cultural right. Basic requirement for development of the human personality and social participation. Requires positive state action for universal enjoyment e.g. free schools accessible for all. Objectives – theories: Older theory: religious – belief that everyone should be able to read bible – liberation of the child (Rousseau). Modern concept related to child’s need for education to personally develop e.g. engage politically, develop skills. 33 Education has a social function as it helps to fulfil social needs e.g. contribute to society and develop high moral standards and tolerance in society. Objectives – provisions: what is the aim of education? UDHR Art 26(2): primary focus of child development, secondary focus on society with education as a social tool to promote understanding and tolerance. CRC Art 29(1): child education shall be directed to – development of child – development of respect of HR – respect for parent’s and cultural identity – respect for natural environment. Codifications: Importance in what legal obligations can be drawn from these instruments. Basic principles and positive state obligations. UDHR Art 26: everyone has right to education – education free at elementary level – elementary education compulsory (makes it universal). ICESCR Art 13(2): primary education compulsory and free – secondary education generally accessible – higher education equally accessible and based on merit. CRC Art 28(1): primary education compulsory and free – encourage development of different forms of secondary education, available, accessible, take appropriate measures e.g. free education or financial assistance – higher education accessible to all based on capacity – encourage regular attendance at schools and reduction of drop-out rates. CRC Art 29(1). CEDAW Art 10: eliminate gender discrimination so women have equal access to education – same conditions for career and vocational guidance – access to same curricular, exams, etc – elimination of stereotypes of roles in all forms of education → are some barriers in practice e.g. Norway - private religious schools, textbooks based on stereotypes. ESC Art 17: environment which encourages full development – education – provide free primary and secondary education – encourage regular attendance at schools. EU Charter of Fundamental Rights Art 14: everyone has right to education – includes possibility to receive free compulsory education – freedom to found educational establishments with due respect for democratic principles – education that respects parent’s convictions. AAAA Framework: Availability: sufficient school, trained teachers, and materials. Allowing private parties to establish non-public schools. Accessibility: non-discrimination, physical and economic access. Acceptability: relevant, quality curricular with respect for cultural contexts. Adaptability: flexible to societal and individual needs, such as gender inclusivity and technology. Useful devise to analyse the content of the right to receive an education and the obligation of states parties resulting from it. Can also measure the level of right realisation. 34 Aim: promote understanding, tolerance, and HR respect – eliminate gender and social stereotypes – and strengthen individual development. Education can be used for wrong purpose e.g. brainwashing children in Nazi regime. ICESCR Art 13: emphasises individual’s sense of dignity and ability to participate in a free society → interests of the individual should be central. Core components: Access to education without discrimination e.g. Taliban regime banned girls and women from all types of educational institutions. Free, compulsory primary education. Primary education must be a priority when allocating resources, because it deals with the fundamental basis for a person’s development and the development of society as whole. Parental choice of education type – freedom to ensure child’s moral and religious education is according to their own beliefs. Option to study in one's language of choice (subject to state policy). Obligations: General: ensure non-discrimination in education, avoid retrogressive measures (e.g. introducing school fees), protect marginalised groups. Specific: implement national education strategies – monitor and enforce minimum standards – address inequalities exacerbated by crises like COVID. France religious symbols ban: Law banned students from wearing religious symbols in French public schools (primary and secondary) to ‘safeguard public order’. Challenged by the HRC, CRC Committee and others. CRC Committee: France must monitor situation of particular girls being expelled from school as result of legislation and ensure that they enjoy the right of access to education. European Social Committee: Equal access for education: for all – particular attention to vulnerable groups of children e.g. minorities, asylum seekers, hospitalised – where necessary there should be special measures taken to ensure equal access for this group. Equal access for children irregularly in territory: access to education is crucial for life and development – denial will exacerbate vulnerability of the unlawfully present child – the non-formal education arrangements provided by non-state actors (e.g. NGOs) cannot be a substitute to the integration of migrant children in the public education system. Integration into mainstream schools or specialist separate school - best solution for disabled children? Requires compulsory education is prescribed by law, available for all (including disabled chronically ill) and must extent to at least time of work. State requirements: accessible and effective education system – full (financial) coverage – functioning system of primary and secondary education – compulsory – 35 attention to vulnerable groups – measures to actively reduce school drop-outs and absence – measures against bullying → fall within respect, protect, fulfil. State obligations: respect, protect, fulfil. CRC Art 28(1) and ICESCR Art 2 (1): progressive realisation – take steps to the maximum of available resources. The state is the duty holder and has to provide adequate educational facilities – but all private schools may be established, as long as the obligations under international law are fulfilled. ICESCR Art 14: if not yet done – states have two years to adopt a detailed plan of action for the progressive implementation of education → failure = violation. Obligations of result: free and compulsory primary education – available and accessible secondary education – higher education available based on merit – fundamental education those with no primary education – special programmes for disabled – elimination of ignorance and illiteracy. Respect: The obligation to respect the right to education requires states to abstain from interference – they must not prevent children from obtaining an education. Obligation of conduct. Protect: requires states guarantee the exercise of the right to education in horizontal relations (between private groups or individuals) e.g. protect against d

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