It is time to update our Constitution to ensure that economic and social rights are clearly protected, writes Prof Fionnuala Ní Aoláin
Protecting human rights has become the mantra of our age. Yet, despite the rhetorical significance given to protecting rights generally, it remains true that some rights, specifically civil and political rights, are better protected than others, specifically economic and social rights. In many democracies, including our own, many myths persist about the capacity to legally enforce economic and social rights. These myths are ill-conceived and do a fundamental disservice to the rights of all persons to have their basic economic and social needs met by the force of law.
There can be little doubt that the consensus of international opinion now acknowledges that the status of economic and social rights has shifted in recent years. It is now generally agreed that their status as rights is no longer in question - most forcefully articulated by the 1993 Declaration of the Vienna Conference affirming the indivisibility of rights. Now the real debate is about how to enforce these rights. Doing this is not as difficult as it may appear.
The good news is that legal enforcement can occur in a variety of ways, involving both national and international legal processes. For example, Ireland has made a number of commitments by treaty to a variety of human rights instruments, including the International Covenant on Economic, Social and Cultural Rights. The Government is required to demonstrate how it is implementing the rights found in this treaty.
Ireland has not always fared well in this review process, most notably in 2002 when the monitoring committee said: "The committee notes with regret that, despite its previous recommendation in 1999, no steps have been taken to incorporate or reflect the covenant in domestic legislation."
International enforcement may seem far removed from the immediacy required by those who need substantive oversight and practical access to have their rights vindicated. As a result, significant effort has concentrated on the role of the courts and judges in responding to violations of economic and social rights.
Judges in Ireland have been generally hostile to the protection of these rights, and have also staunchly rejected the position that any legal effects result from our international treaty obligations protecting economic and social rights. The negative effect of judicial antagonism is compounded by the Government's position before UN treaty bodies. Here, successive governments have argued that the dualist nature of the Irish legal system poses an obstacle to incorporating any human rights standards, except where domestic law already conforms to the relevant standard. As the Irish Human Rights Commission has noted, this position is based on a mistaken interpretation of the relevant constitutional provision and is in urgent need of review.
We must firmly rebut the view that judges should not adjudicate economic and social rights because assumptions about their redistributive element wrongly lead to the view that they require only political and not legal choices. First, it is important to acknowledge that in many contexts a redistributive element may be present in the enforcement of social and economic rights. However, redistribution is a feature of many judicial decision-making contexts from tort damages to competition law. Judges routinely make choices between litigants and between the state and individual litigants that have profound financial implications. In many contexts, judicial choice mandates redistribution, the preferment of certain kinds of financial structures over others, as well as the preferment of certain kinds of economic ideologies over others. Such deliberations generally occur in a context where a formal rights discourse is absent, but nonetheless involve an assessment of claims which demand resources, compensation, specific action by the State or private parties, or distribution of assets from one to another. Judges assess such claims regularly. There is no reason to believe them inherently incapable of doing so when the language of rights is part of the context of deliberation. I robustly defend the view that judicial oversight of economic and social rights is not substantially different from the role judges play in many other circumstances.
To facilitate judicial enforcement one route is to adopt certain economic and social rights into the Constitution or basic law of the State. Societies such as South Africa have successfully done this. The Irish Human Rights Commission has argued that the language of the Constitution should be updated to reflect contemporary understandings of the proper place of economic and social rights in the constitutional order. The commission has rightly stated that in a welfare state system like ours, where such issues as housing, education and healthcare are consistently named as the political priorities of the public at large, it is important for such matters to be addressed in an effective way in the operative text of the Constitution.
That stated, the present Constitution does not entirely lack the tools to address economic and social rights. It is possible for our courts to successfully achieve a level of protection for economic and social rights by interpreting civil and political rights in an expansive manner. Indirect protection of economic and social rights is regularly undertaken by other common law systems, and has also been a feature of the jurisprudence of the European Court of Human Rights.
Even more usefully, the Constitution contains directive principles directly focused on a commitment to economic and social protections. While the directive principles have played almost no meaningful role in the jurisprudence of Irish courts, they hold the capacity to be used in such a way as to enforce those rights of greatest significance to our most vulnerable individuals and communities. There are also other mechanisms to enforce these rights, including legislative measures, and human rights proofing of legislation through formal and structural requirements (such as parliamentary committees).
All these mechanisms require the critical starting point of recognising that economic and social rights are a key element of our political and legal identity. But recognition alone is insufficient. One further move would give meaning to the rhetoric, namely, the commitment to translate ideas into legal form. Taken together, these steps constitute the benchmarks of a caring and rights-conscious society in which the rights of all, and all rights, are equally protected.
Prof Fionnuala Ní Aoláin is director of the Transitional Justice Institute at the University of Ulster and a member of the Irish Human Rights Commission