Default title

17 November 2001


Opening address by Ms. Mary Robinson,
High Commissioner for Human Rights

Workshop for Judges on the Justiciability of
Economic, Social and Cultural Rights in
South Asia

New Delhi, 17 November 2001




Mr. Chairperson, distinguished members of the judiciary, ladies and gentlemen,

It gives me great pleasure to declare open this important sub-regional workshop for South Asia on the justiciability of economic, social and cultural rights. I also express my appreciation to our host, the Government of India, for its warm welcome. To Mr. Justice Bharucha I express my congratulations on your appointment as Chief Justice and my appreciation for your being with us today.

As you know, this workshop is taking place within the context of a programme of regional technical co-operation for the promotion and protection of human rights in the Asia-Pacific region. It is one of the final activities which had been mandated by a two-year Plan of Action adopted by States of the region at a workshop held in Beijing in March 2000. It develops further the Teheran Framework, which identified four “pillars” of regional human rights technical co-operation, one of which is the promotion of economic, social and cultural rights and the right to development. This workshop also recognises that effective promotion of human rights should move from the regional to the sub-regional and national levels and that it should target both governments and other key parts of society. The judiciary have been identified, rightly, as playing a crucial role in promotion and protection of human rights. It is sufficient in this context to mention the widely known “Bangalore Principles” adopted over a decade ago by Commonwealth judges, encouraging domestic application of international human rights norms.

The topic of this workshop is well framed. It does not refer to “whether” economic, social and cultural rights are justiciable. Instead the focus is on how best to address them within the justice system. This practical perspective finally puts aside the jaded debate as to whether these rights can be considered as 'rights' at all. Similarly, it goes beyond the mistaken and anachronistic discussion as to whether economic, social and cultural rights are of equal standing with civil and political rights.

That we can take this approach is, in no small measure, thanks to the pioneering work of the judiciary over a number of years. Today, I express deep appreciation to these judges and to the advocates who have argued before them. I am particularly pleased to be able to do so here in South Asia. For there can be no doubt that, in the field of economic and social rights, it is here in this sub-region that the most significant advances have been made and key precedents established. It is my hope that this workshop may harvest achievements, with a view to sharing the experience with the justice systems of other Asia-Pacific sub-regions and indeed globally. Specifically, it is hoped that this workshop will:

(a) gather together best practice on the justiciability of economic, social and cultural rights within the South Asian sub-region
(b) ensure that best practice is distilled into a detailed and elaborated workshop report for use in the sub-region and internationally
(c) make a significant contribution to the process of development in this area of the OHCHR Manual for Judges and Lawyers.

This workshop also offers an opportunity for the further development of my Office’s partnership with two major professional organisations – the International Bar Association and the International Commission of Jurists. In addition, it broadens contacts in the judicial and legal communities of South Asia.

THE FOCUS OF THE WORKSHOP

Over these two days your discussions will concentrate on experience regarding the justiciability of four specific rights: the right to health, the right to housing, the right to education and labour rights. These have been chosen with some care because of the important jurisprudence - national and international - which has developed around them. Study of this jurisprudence is an important step in extending justiciability across the entire range of economic, social and cultural rights. To help you in your deliberations, I am delighted that expert resource persons have been identified. Their contributions will, no doubt, provoke further worthwhile and concrete discussions. I am also pleased that a number of distinguished lawyers of the sub-region have joined this workshop in an observer capacity. Close attention will be paid to the reflections and contribution of the parallel meeting of lawyers and its results will be made available to the participant judges. They will also be of value for the final output. The workshop will have another important resource in the participation of the UN Commission on Human Rights’ Special Rapporteur on the Right to Adequate Housing, Miloon Khotari, whom I welcome to the workshop.

INTERNATIONAL LEVEL DEVELOPMENTS

Let me refer at this point to some international level developments that enhance our understanding of economic, social and cultural rights and the obligations that their realisation entails. If I may, I would like to invite you to take into account and address some of these developments in your discussions.

We are moving towards a global village of jurisprudence. It is no longer exceptional to have in this and other regions national human rights case law of one country cited and relied on in another. An example is the 1999 decision of the High Court of Bangladesh ( ASK v. Bangaladesh BLD 1999). In that case the High Court referred to the extraordinary jurisprudence of the Indian Supreme Court linking forced evictions and the right to life. We are also seeing increased reference in national courts all over the world to the international jurisprudence of human rights. This was brought home to me last month, when I attended a workshop on this subject of the justiciability of economic, social and cultural rights, in Buenos Aires for all countries of Latin America and the Caribbean. The goal should be to have judicial experience in human rights litigation at national, regional and international level shared, so that courts reinforce a consistent and common view of universal rights at every level.

International Sources :

I have already spoken of the importance and richness of the jurisprudence of South Asia – but you might also like to take into account the jurisprudence at the international level. In the UN context let me briefly mention some examples.

First, the work of the Committee on Economic, Social and Cultural Rights.

This is the independent Committee established under the International Covenant on Economic, Social and Cultural Rights. It has responsibility for monitoring the performance of governments which have ratified the Covenant in implementing their commitments. I understand that two of the countries represented at the workshop - Bhutan and the Maldives - have not yet signed the Covenant. As always, I wish to underscore the importance of ratification of core international human rights treaties of this kind. However, even without such ratification, it must be acknowledged that the Committee has provided important guidance and normative interpretations of a number of key rights in this field. One of its effective methods of work is to provide authoritative clarification for governments as to the nature and scope of different rights contained in the Covenant and of their obligations. Thus in relation to some of the topics of this workshop, it would be useful to examine their conclusions on and conceptions of some relevant issues.

The Economic Social and Cultural Rights Committee’s 'General Comments' are available to the Workshop. I do encourage you to read them. Let me refer to a few examples. Last year, the Committee produced a General Comment on the right to the highest possible standard of health (General Comment No. 14). In 1999 it had produced two general comments on education - one on the right to education, and one specifically on plans of action for primary education. The question of adequate housing has also been addressed in this form, with a wide-ranging General Comment in 1991, and a specific focus on forced evictions during 1997.

Alas, it is some years since I had the opportunity to address a court as an advocate. But I must say it strikes me that it would be an interesting argument to seek to have a court that was considering an aspect of the right to education or housing take account of the guidance offered as to the scope of those rights in the relevant General Comments by the Economic Social and Cultural Rights Committee.

Secondly, The UN Commission and Sub- Commission on Human Rights

My Office has been deepening its approach to economic, social and cultural rights as a result of new mandates of the Commission on Human Rights and the attention devoted to these rights by the Sub-Commission on the Promotion and Protection of Human Rights. The rapid increase in mandates created by the Commission in recent years - such as the Special Rapporteurs on the right to education, on the right to adequate food, and adequate housing as a component of the right to an adequate standard of living - bear witness to the importance attached to these rights by a majority of UN Member States. Moreover, the Sub-Commission on the Promotion and Protection of Human Rights has embarked upon consideration of issues such as globalisation and its impact on the enjoyment of human rights, the right to clean water, and the effect of structural adjustment programmes and foreign debt on the enjoyment of human rights. All of these sources I believe can be of direct relevance to legal decision-making at the national level in the implementation of economic social and cultural rights.

One final point relating to the international plane - I would be particularly interested to hear your opinions on the ongoing discussion of a possible Optional Protocol under the International Covenant on Economic, Social and Cultural Rights providing for individual communications - essentially an international complaints mechanism.

Regional Dimensions

Turning to the regional level, I invite you to consider the outcome of a number of recent meetings. For instance, under the Teheran framework a regional meeting took place in Kuala Lumpur last May regarding the impact of globalisation on the full enjoyment of economic, social and cultural rights and the right to development. In the Agreed Conclusions of that workshop the participating States affirmed the importance of a legal framework within which States may address the impacts of globalisation. The Conclusions speak of the creation of processes that enable the harmonisation of laws and policy necessary to achieve progressive realisation of economic, social and cultural rights and the right to development, and which contribute to maximising for all the benefits offered by globalisation. The Conclusions also speak of the need to clarify the content of specific rights and to promote “awareness among the public and other stakeholders of the provisions and principles concerning economic, social and cultural rights”.

Mr. Chairperson, distinguished colleagues,

We are convinced that an effective partnership with you and with the other key members of society is crucial to the success of our efforts for the promotion and protection of human rights. I undertake to ensure that this workshop will not be an isolated event but will be, rather, one step on a path walked together. I am confident in making such a commitment, not least because of the extraordinary dedication to that goal of my honorary regional adviser, Mr. Justice Bhagwati.

On this occasion I know that you will permit me to pay tribute to him. Words can hardly convey the depth of my appreciation for the Justice. With his wisdom, experience and learning he continues to play an indefatigable and highly significant part in regional and international efforts for the promotion and protection of human rights, not least in his capacities as Chairman of the Human Rights Committee and as my honorary regional advisor. And I am sure that I am not alone at this meeting in having been so enriched personally by his friendship. As he nears his 80th birthday I wish him, ad multos annos!

Mr. Chairperson, dear colleagues,

The issue of the justiciability of economic, social and cultural rights is a pressing one as we work for a more ethical globalisation. It must be examined at all levels - national, sub-regional, regional and international. I wish you well in your deliberations, and look forward to learning of the results.


Thank you.