The Marginalization of Socio-Economic Rights (I)

Colm O’Cinneide

UCL

Editors’ note: this is part I of a two-part post on the marginalization and revival of social and economic rights.

Coronavirus; climate change; the impact of the 2008 economic crisis and the austerity policies that followed; the cumulative social toll across the globe of four decades of neo-liberal economic governance. The combined impact of all these factors has splintered the broad political consensus that had existed throughout the 1990s and early 2000s as to the sustainability of the existing global socio-economic order. New ideas are in the air – and law, as both an academic discipline and field of social activity, has not been immune to this trend.

Fifteen years ago, a small minority of legal scholars and activists were researching the relationship between political economy, social rights/equality claims, and the interlocking structures of public and private law regulation. That has changed, dramatically. Compelling new academic work is being produced across all of these topics. (For a taster of impressive recent US research on law and political economy, see here.) They are also becoming the focus of sustained legal advocacy by activist lawyers, campaigners and NGOs. (For an example of such advocacy from the UK, see here.)

Much of this legal research and mobilisation has focused on the topic of socio-economic rights (hereafter ‘SER’), their relationship with other national and international legal norms, and whether legal protection of such rights can secure better social protection in liberal democracies. Not everyone agrees that SER warrant such a degree of mobilisation, for reasons discussed further below. But, given the normative potency of ‘rights talk’ and the responsiveness of legal systems in particular to rights-based arguments, it is unsurprising that SER have attracted so much attention. Research and activism in this area focuses on a diverse range of issues, reflecting the wide scope of application of such rights. However, much of it shares a common theme: namely, a focus on ‘activating’ SER, i.e. exploring how such rights could play a more prominent role in contemporary legal and political debates.

Sometimes this discussion is concentred on the issue of whether such rights should be directly enforceable through law. But, as I will argue below, debates around ‘activating’ SER extend much further than this. Indeed, the enforceability debate risks obscuring some of the more interesting developments in this field - and the variety of ways in which attempts are being made to ‘rescue’ SER from the marginal status which they have occupied within human rights law and politics.

The Marginalisation of SER

If human rights declarations were taken at face value, the legal and political significance of SER would be beyond question. A significant number of such rights are listed in the Universal Declaration of Human Rights. The vast majority of states have ratified legally binding treaty instruments committing them to respect social rights, and to participate in associated monitoring mechanisms. (At the time of writing, 170 states have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR), while the eight ‘core’ ILO conventions have attracted 92% of the total number of possible state ratifications. Within Europe, 43 out of 47 Council of Europe member states have ratified the European Social Charter (ESC).) At national level, it is common for state constitutions to affirm the importance of social rights. Indeed, such rights have often been elevated to the status of ‘guiding principles’ for state action, or otherwise acknowledged to be core constitutional norms.

And yet, in reality, these affirmations have generally rung hollow. Social rights have been relegated to the margins of the international human rights movement since the 1960s, and have been given a similar peripheral status within the majority of national constitutional frameworks.  For decades, they have been the neglected cousins of their civil and political counterparts, enjoying little in the way of political salience or legal impact. In part this is due to the legacy of Cold War political dynamics, and the desire of liberal democracies to prioritise the protection of civil and political rights. But it also reflects the existence of a deep scepticism about the conceptual integrity of social rights, which persists to this day. They are widely viewed as amounting to little more than mere ‘maxims of political morality’ (to borrow a phrase from A. V. Dicey) – and thus as lacking sufficient normative content to qualify as ‘real’ human rights.

As a result, it is rare for social rights standards – whether set out in international instruments like ICESCR, or in national constitutions – to be interpreted as giving rise to enforceable legal obligations. Courts usually treat them as non-justiciable policy objectives, rather than as justiciable legal norms. Indeed, they have often developed various ‘containment doctrines’, which are designed to limit the reach of human rights law and other public law remedies into the socio-economic sphere – even when SER are not being pleaded in their own right. (An example of this is the wide margin of discretion given by the European Court of Human Rights to government decision-making as it relates to the provision of essential public services, even when it impacts upon core civil and political rights such as the right to privacy and non-discrimination: see e.g. the recent judgment of Hudorovič and Others v. Slovenia.) In general, the socio-economic sphere has been conceptualised as an area where human rights law should lie largely dormant, with SER denied even indirect legal protection through alternative forms of rights review.

At the political level, the alleged indeterminacy of SER also makes it easy for national governments to shrug off claims by human rights monitoring bodies, trade unions and NGOs that they are failing to comply with ICESCR or ILO obligations. Governments can always point to the temporal leeway afforded to them by the concept of ‘progressive realisation’ set out in Article 2(1) ICESCR to justify a failure to deliver on SER claims. Alternatively, they can cite the apparent practical rationality of their economic policies or governance strategies under challenge, and contrast that with the fuzziness of SER claims.

All this explains why state engagement with social rights has generally resembled a shadow play, at both the national and international levels. There has been plenty of gesticulation (some might say diversion), but little in the way of tangible impact. For all the sonorous legal rhetoric in which they are enveloped, SER commitments have often had minimal impact on state action – in particular in the Global North, where assumptions about the aspirational nature of such rights claims have generally been taken to be received wisdom.

Colm O’Cinneide is Professor of Constitutional and Human Rights Law, UCL

Suggested citation: Colm O’Cinneide, “The Marginalization of Socio-Economic Rights” IACL-AIDC Blog (21 May 2020) https://blog-iacl-aidc.org/social-rights/2020/5/21/the-maginalization-of-socio-economic-rights-i