Social Rights


  Social Rights

 Social Rights The Universal Declaration included social (or “welfare”) rights that address matters such as education, food, and employment. Their inclusion has been the source of much controversy (see Beetham 1995). Social rights are often alleged to be statements of desirable goals but not really rights. The European Convention did not include them (although it was later amended to include the right to education). Instead they were put into a separate treaty, the European Social Charter. When the United Nations began the process of putting the rights of the Universal Declaration into international law, it followed the model of the European system by treating economic and social standards in a treaty separate from the one dealing with civil and political rights. This treaty, theInternational Covenant on Economic, Social, and Cultural Rights (the “Social Covenant,” 1966), treated these standards as rights—albeit rights to be progressively realized. The Social Covenant’s list of rights includes nondiscrimination and equality for women in economic and social life (Articles 2 and 3), freedom to work and opportunities to work (Article 4), fair pay and decent conditions of work (Article 7), the right to form trade unions and to strike (Article 8), social security (Article 9), special protections for mothers and children (Article 10), the right to adequate food, clothing, and housing (Article 11), the right to basic health services (Article 12), the right to education (Article 13), and the right to participate in cultural life and scientific progress (Article 15). Article 2.1 of the Social Covenant sets out what each of the parties commits itself to do about this list, namely to “take steps, individually and through international assistance and co-operation…to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” In contrast, the Civil and Political Covenant simply commits its signatories to “respect and to ensure to all individuals within its territory the rights recognized in the present Covenant” (Article 2.1). The contrast between these two levels of commitment has led some people to suspect that economic and social rights are really just valuable goals. The system to monitor and promote compliance with the Social Covenant is modest since it mainly requires participating countries to make periodic reports on measures taken to comply with the treaty. Countries agree “to submit…reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein” (Article 16). A committee of experts, created by the Economic and Social Council in 1987, is given the job of looking at the progress reports from the participating countries. This body, the Committee on Economic, Social and Cultural Rights, studies the reports, discusses them with representatives of the governments reporting, and issues interpretive statements known as “General Comments” on the requirements of the treaty. A recent amendment to the treaty allows residents of countries that approve the amendment to submit complaints of violations to the Committee. Why did the Social Covenant opt for progressive implementation and thereby treat its rights as being somewhat like goals? The main reason is that nearly half of the world’s countries were in no position in terms of economic, institutional, and human resources to realize these standards fully or even largely. For many countries, noncompliance due to inability would have been certain if these standards had been treated as immediately binding. We will return to this topic below. Opponents of social rights often deny them the status of human rights, restricting that standing to civil and political rights. Familiar objections to social rights include the following: (1) they do not serve truly fundamental interests; (2) they are too burdensome on governments and taxpayers; and (3) they are not feasible in less-developed countries (on these issues see Beetham 1995; Cranston 1967, 1973; Howard 1987; Nickel 2007). It is far from the case that most social rights pertain to superficial interests. Consider two examples: the right to an adequate standard of living and the right to free public education. These rights require governments to try to remedy widespread and serious evils such as hunger and ignorance. The importance of food and other basic material conditions of life is easy to show. These goods are essential to people’s ability to live, function, and flourish. Without adequate access to these goods, interests in life, health, and liberty are endangered and serious illness and death are probable. Lack of access to educational opportunities typically limits (both absolutely and comparatively) people’s abilities to participate fully and effectively in the political and economic life of their country (Hodgson 1998). Lack of education increases the likelihood of unemployment and underemployment. Another way to defend the importance of social rights is to show the highly useful support they provide to the full realization of civil and political rights. If a government succeeds in eliminating hunger and providing education to everyone this promotes people’s abilities to know, use, and enjoy their liberties, due process rights, and rights of political participation. This is easiest to see in regard to education. Ignorance is a barrier to the realization of civil and political rights because uneducated people often do not know what rights they have and what they can do to use and defend them. It is also easy to see in the area of democratic participation. Education and a minimum income make it easier for people at the bottom economically to follow politics, participate in political campaigns, and to spend the time and money needed to go to the polls and vote. The second objection is that social rights are too burdensome. It is very expensive to guarantee to everyone basic education and minimal material conditions of life. Perhaps social rights are too expensive or burdensome to be justified even in rich countries. Frequently the claim that social rights are too burdensome uses other, less controversial human rights as a standard of comparison, and suggests that social rights are substantially more burdensome or expensive than liberty rights. Suppose that we use as a basis of comparison liberty rights such as freedom of communication, association, and movement. These rights require both respect and protection from governments. And people cannot be adequately protected in their enjoyment of liberties such as these unless they also have security and due process rights. The costs of liberty, as it were, include the costs of law and criminal justice. Once we see this, liberty rights start to look a lot more costly. To provide effective liberties to communicate, associate, and move it is not enough for a society to make a prohibition of interference with these activities part of its law and accepted morality. An effective system of provision for these liberties will require a legal scheme that defines personal and property rights and protects these rights against invasions while ensuring due process to those accused of crimes. Providing such legal protection in the form of legislatures, police, courts, and prisons is extremely expensive. Further, we should not think of social rights as simply giving everyone a free supply of the goods these rights protect. Guarantees of things like food and housing will be intolerably expensive and will undermine productivity if everyone simply receives a free supply. A viable system of social rights will require most people to provide these goods for themselves and their families through work as long as they are given the necessary opportunities, education, and infrastructure. Government-implemented social rights provide guarantees of availability (or “secure access”), but governments should have to supply the requisite goods in only a small fraction of cases. Note that education is often an exception to this since many countries provide free public education irrespective of ability to pay. Countries that do not accept and implement social rights still have to bear somehow the costs of providing for the needy since these countries—particularly if they recognize democratic rights of political participation—are unlikely to find it tolerable to allow sizeable parts of the population to starve and be homeless. If government does not supply food, clothing, and shelter to those unable to provide for themselves, then families, friends, and communities will have to shoulder this burden. It is only in the last century that government-sponsored social rights have taken over a substantial part of the burden of providing for the needy. The taxes associated with social rights are partial replacements for other burdensome duties, namely the duties of families and communities to provide adequate care for the unemployed, sick, disabled, and aged. Deciding whether to implement social rights is not a matter of deciding whether to bear such burdens, but rather of deciding whether to continue with total reliance on a system of informal provision that distributes assistance in a very spotty way and whose costs fall very unevenly on families, friends, and communities. Once we recognize that liberty rights also carry high costs, that intelligent systems of provision for social rights supply the requisite goods to people in only a small minority of cases, and that these systems are substitutes for other, more local ways of providing for the needy, the difference in size between the costs of liberty rights and the costs of social rights ceases to seem so large. Even if the burdens imposed by social rights are not excessive, it might still be wrong to impose them on individuals. Libertarians object to social rights as requiring impermissible taxation. Nozick, for example, says that “Taxation of earnings from labor is on a par with forced labor” (Nozick 1974, 169). This view is vulnerable to an attack asserting two things. First, taxation is permissible when it is used to support government-organized systems of humanitarian assistance that fulfill more effectively than charity duties of assistance that all individuals have (Beetham 1995, 53). Second, property rights are not so strong that they can never be outweighed by the requirements of meeting other rights.  The third objection to social rights is that they are not feasible in many countries. It is very expensive to provide guarantees of subsistence, minimal public health measures, and basic education. As we saw above, the Social Covenant dealt with the issue of feasibility by calling for progressive implementation, that is, implementation as financial and other resources permit. Does this view of implementation turn social rights into high-priority goals? If so, is that a bad thing? Standards that outrun the abilities of many of their addressees are good candidates for normative treatment as goals. Treating such standards as goals, which allows us to view them as largely aspirational rather than as imposing immediate duties, avoids massive problems of inability-based noncompliance. One may worry, however, that this is too much of a demotion. As norms, goals seem much weaker than rights. But goals can be formulated in ways that make them more like rights. Goals can be assigned addressees (the party who is to pursue the goal), beneficiaries, scopes that define the objective to be pursued, and a high level of priority (see Nickel 2013). Strong reasons for the importance of these goals can be provided. And supervisory bodies can monitor levels of progress and pressure low-performing addressees to attend to and work on their goals. Treating very demanding rights as goals has several advantages. One is that proposed goals that exceed one’s abilities are not as farcical as proposed duties that exceed one’s abilities. Creating grand lists of human rights that many countries cannot at present realize seems fraudulent to many people, and perhaps this fraudulence is reduced if we understand that these “rights” are really goals that countries should promote. Goals are inherently ability-calibrated. What you should do now about your goals depends on your abilities and other commitments. Goals coexist happily with low levels of ability to achieve them. Another advantage is that goals are flexible; addressees with different levels of ability can choose ways of pursuing the goals that suit their circumstances and means. Because of these attractions of goals, it will be worth exploring ways to transform very demanding human rights into goals. The transformation may be full or partial. A right together with its supporting reasons might be divided into two parts. One part, call it the “demand side,” sets out the rightholder’s claim and the reasons why it is very valuable or important that this claim be fulfilled. In the right to a fair trial when one is arrested and accused of a crime` the demand side would set out the rightholder’s claim to a fair trial and the reasons why that claim is very valuable or important. The other part, the “supply side,” would set out the addressees’ responsibilities in regard to the rightholder’s claim. It would explain why this claim to a fair trial is a matter of duty, what the duties are, and why it is these particular addressees rather than other possible addressees that have the duty (Feinberg 1973). A goal that is similar to a right could also be divided into these two parts. The demand side would set out the beneficiary’s claim or demand and the reasons why it is very desirable or important that this demand be fulfilled. For example, the demand side might set out the reasons why it is desirable for the beneficiary to have access to employment. And the supply side would set out the addressee’s responsibility in regard to the beneficiary’s demand. It would explain why promoting access to employment for the beneficiary should be a goal for the addressee. It does not impose duties on the addressee, but it shows that the addressee has good reasons for acting to satisfy the demand. Since even a goal that is supported by good reasons imposes no duties—that is, fails to be mandatory in character—we may think that such goals are poor substitutes for rights and should not be called “rights.” But it is possible to create right-goal mixtures that contain some mandatory elements and that therefore seem more like real rights (see Brems 2009 for a similar idea). A minimal right-goal mixture would include a duty to try to realize the goal as quickly as possible. Here the demand side would set out the beneficiary’s demand or claim and the reasons why it is very desirable or important that this demand be fulfilled. And the supply side would explain not only why the addressee has good reasons to pursue this goal, but also explain why the addressee has a duty to try to realize this goal with all deliberate speed. The economic and social rights in the Social Covenant seem to fit this model. The countries ratifying the Covenant agree to make it a matter of government duty to realize the list of rights as soon as possible. As we saw earlier, each of the Social Covenant’s signatories has agreed to “take steps, individually and through international assistance and co-operation to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant.” The signatories agree, on this interpretation, to make it a matter of duty to realize the listed rights as soon and as far as resources permit. A problem with such a right-goal mixture is that it allows the addressee great discretion concerning when to do something about the right and how much to do. A panel supervising compliance with a human rights treaty may wish to remove some of this discretion by requiring that the addressees at least take some significant and good faith steps immediately and regularly and that these steps be documented. Duties to try are less vaporous if they are combined with duties that require immediate steps. Countries may be required to act in certain ways (e.g., make a good faith effort and be prepared to demonstrate that they have done so), set specific benchmarks and timetables, establish agencies to work on the goals, provide them with budgets, and use expert assistance from international agencies. To facilitate the monitoring of compliance the country may be required to collect data continuously concerning realization of the goals, make periodic reports, and allow its citizens to complain to the monitoring body about failures to pursue the goals energetically (United Nations 1991). Insistence that human rights not be too demanding can be complemented by measures to enhance the ability of developing countries to realize human rights. Possible strategies for such a combined approach include using aid to increase the resources available for implementing rights, providing education to current and future officials, offering technical assistance concerning mechanisms of implementation, and battling corruption. John Rawls proposed a duty of liberal democratic countries to aid poor or “burdened” countries. Rawls defines “burdened societies” as ones that “lack the political and cultural traditions, the human capital and know-how and, often, the material and technological resources needed to be well-ordered” (Rawls 1999). Rawls holds that well-off countries have a moral duty to assist burdened societies. Unfortunately Rawls does not provide much justification for this claim. In particular he does not use his idea of an international “original position” to work out how the justification for such a duty would go and what objections it would need to overcome. A good defense of a duty of well-off countries to assist poor ones in realizing human rights would not automatically impose that duty on the citizens of the well-off countries (except, of course, through the taxes they pay). But perhaps citizens should share somehow in duties of international aid. One approach to explaining how and why citizens share in these duties involves viewing the citizens of a democratic country as having ultimate responsibility for the human rights duties of their government. If their government has a duty to respect or implement the right to a fair trial, or a duty to aid poor countries, its citizens share in that duty. They are required as voters, political agents, and taxpayers to try to promote and support their government’s compliance with its human rights duties. This principle of shared duty is particularly attractive in democratic societies where the citizens are the ultimate source of political authority. This view makes individuals back-up addressees for the duties of their governments. Thomas Pogge has taken a related but slightly different approach to generating individual duties from human rights that have governments as their primary addressees. Pogge emphasizes the Universal Declaration’s Article 28 which says that “Everyone is entitled to a social and international order in which this the rights and freedoms set forth in this Declaration can be fully realized.” Pogge sees in this Article a plausible norm, namely that both countries and individuals have negative duties not to be complicit in an international order that unfairly disadvantages poor countries and the people in them. A coercive political order, whether national or international, “must not avoidably restrict the freedom of some so as to render their access to basic necessities insecure—especially through official denial or deprivation. If it does, then all human agents have a negative duty, correlative to the postulated social and economic human rights, not to cooperate in upholding it unless they compensate for their cooperation by protecting its victims or by working for its reform. Those violating this duty share responsibility for the harms (insecure access to basic necessities) produced by the unjust institutional order in question” (Pogge 2002, 67).