Reading Paul O’Connell’s recent book Vindicating Socio-Economic Rights one is once again confronted with the still existing lack of justiciability of economic and social fundamental rights norms. O’Connell presents interesting case studies and shows that there is still a lot of work to be done. He stresses that ‘the ideal is to have socio- economic rights specifically recognised and entrenched at the same level as civil and political rights’ (p.181). On the basis of O’Connell’s case studies, however, one could also argue that it might be worthwhile improving alternative routes towards increased socio-economic rights protection.
The study of Canada, for example, shows that socio-economic rights can also be given teeth when they are protected as corollaries of civil and political rights. Interpreting rights to ‘life and security of the person’ and ‘equality’ in a broad manner allows for dealing with issues concerning social security, health care and housing policy. An overly deferential attitude of courts might obstruct achieving the full socio-economic potential of these rights, but at least the possibility for bringing claims and concretising protection is there.
Also with regard to Europe, it can be argued that we should further examine the potential of civil and political rights for increasing socio-economic protection. It of course remains of the utmost importance to improve the status and justiciability of the economic and social rights laid down in international documents and national constitutions. But looking at the case law of the European Court of Human Rights, one cannot but get the impression that a lot of socio-economic matters also fit the ECHR rights quite well. Even very recently the Court has dealt with social security issues, environmental matters and housing cases, some of which would at first sight better fit the socio-economic rights that we for example find in the South African Constitution. Also in the Dutch case law, moreover, we can see that the invocation of the ECHR in social matters can generate success (consider the case law on the koppelingsbeginsel).
Of course, the disadvantage of focusing on the protection of social and economic rights through their civil and political counterparts is that, as Koch argues, this only works ‘where the social rights appear as necessary fulfilment elements in civil rights’. At the same time we should also not overestimate the possible effects of direct justiciability of (international) economic and social rights. Although the wording of these rights potentially allows for more substantive and far-reaching protection, cases concerning socio-economic issues will always be likely to be handled in a deferential manner (see also the South African experience). They often must be handled in a deferential manner, due to a lack of resources, or the political choices that have been made. Hence it is also not very likely that with justiciable socio-economic rights provisions everybody can claim a house, benefits and care even when the lack thereof would not constitute a violation of his private or family life or constitute discrimination.
Maybe I am a bit optimistic, but even though a higher standard of (explicit) protection via civil and political fundamental rights will no doubt be met with some hostility, if we care about socio-economic rights it is worth taking seriously the potential of civil and political rights and trying to make the most out of it.