No Consensus On Social Justice For The Poor

While at a national level the New Zealand Labour Government is projecting itself as a government concerned for the poor at an international level that concern is not so evident.

New Zealand has been described as “light” opposition to the drafting of an Optional Protocol (OP) for the International Covenant on Economic, Social and Cultural Rights (ICESCR) in a working group at the United Nations, Geneva, from Feb 23 to March 5, 2004.

The open-ended working group which consisted of representatives from governments and civil society arrived at no consensus regarding the drafting of an Optional Protocol which would have provided a complaints procedure for those suffering serious social injustices i.e. violations of economic, social and cultural rights. Perhaps more important than remedies that would have obtained by the complainant is the publicity that is given by a court appearance which makes general public aware of the violations so often kept hidden. The recommendations of the working group will be forwarded to the Human Rights Commission which began its sixtieth session on March 15, 2004. It seems the commission may renew the mandate of the working group for two or three years. Some of those countries strongly opposed to an OP included the United States, United Kingdom, Canada and Australia.

According to Maria Graterol of International Women’s Rights Action Watch Asia Pacific, who attended the working group, while New Zealand would not oppose the renewal of a mandate for the working group it did not want a mandate that moved to drafting an OP. She states: “My take is that the government (New Zealand) will tell you they are neutral when in fact they are “light” opposition to the OP – ICESCR”. While I have not as yet gained further confirmation of New Zealand’s involvement the failure of Phil Goff, the Minister of Foreign Affairs, and the Ministry of Foreign Affairs to answer questions regarding New Zealand’s stance indicates Ms Graterol’s observations are likely to be correct. Also the International Commission of Jurists Legal Officer, Edwin Berry, reports that historically New Zealand has been anti-OP. In addition New Zealand does not consider economic, social and cultural rights to be justiciable (amenable to judicial determination) and was criticised for taking this view by the United Nations Committee on Economic, Social and Cultural Rights last year (New Zealand reports to the committee periodically regarding its compliance with the International Covenant on Economic, Social and Cultural Rights). An optional protocol would be much less effective if economic, social and cultural rights are considered to be unable to be dealt with by a court.

An OP for ICESCR would have assisted in giving economic, social and cultural rights equal status with civil and political rights which has an OP. The United Nations has constantly maintained, at least in terms of rhetoric, that economic, social and cultural rights and civil and political rights should be of equal status e.g. the Vienna Declaration (1993) and the Limburg Principles (1987). In New Zealand, which has ratified the OP for the International Covenant on Civil and Political Rights, we are able to take complaints of discrimination to the Human Rights Commission and can take cases to court under the New Zealand Bill of Rights Act 1990. If the complainant has exhausted all domestic remedies and is still not satisfied he/she can take their case to the Human Rights Committee of the United Nations. It is likely that an OP for the ICESCR would have provided a similar procedure to civil and political rights. The New Zealand Plan of Action for Human Rights being conducted by the Human Rights Commission is currently placing much emphasis on economic, social and cultural rights. It is hoped that the result in Geneva will not prevent all haste in rectifying social injustice in New Zealand. New Zealand could provide remedies without an OP by including economic, social and cultural rights in law.

Presently the global elite seem to be in the grip of the neo-liberal ideology espoused by the West led by America. And economic, social and cultural rights would empower the most disadvantaged to challenge these elites. Given this international climate it would seem that a bottoms-up approach to social change would be more effective than a top-down approach. In other words change is most likely to come from the demonstrations seen from Seattle to Calcun than it is from the United Nations. But for now, it seems, those suffering from hardship and poverty, sometimes for many years, will have to continue to wait with no clear assurance if or when they will get justice.

As a direct result of a protest against homelessness which drew attention to ‘core obligations’ for economic, social and cultural rights this innovative concept, dealing with the most disadvantaged (or the poorest of the poor), has been included for consideration in the status report of the New Zealand Plan of Action for Human Rights.

Marianne Elliot, Project Manager of the New Zealand Plan of Action for Human Rights being conducted by the Human Rights Commission, stated on Feb 29, 2004, about four weeks after the protest action, that the status report due out in May 2004 ‘will include consideration of ‘core obligations’ in relation to economic and social rights, and in particular, the right to housing’. The following article (with some small changes and additions) was written shortly after the protest and provides the essential background.

The Need for Shelter – A ‘Core’ Human Rights Obligation

A View from the Poor.

Anthony Ravlich MA, BSc, Dip Crim (Hons), refused employment by the mainstream since 1991. Chairperson, NZ Council of Economic, Social and Cultural Rights Inc.

From Christmas eve to New Year’s day members of the New Zealand Council of Economic, Social and Cultural Rights Inc. and Psychiatric Survivors Inc. protested against homelessness by sleeping overnight in a park in Cox’s Bay Reserve, Grey Lynn.

It is a cause for real concern that the information kit of the New Zealand Plan of Action for Human Rights presently being conducted by the Human Rights Commission does not mention ‘core’ economic, social and cultural rights obligations. For example, the provision of basic shelter is a ‘core’ obligation of housing i.e. it is the minimal requirement. The plan of action, which is due to be implemented in 2005, involves very important constitutional issues which are being buried by the media. It takes extreme action like ours to bring it to light. On Christmas eve we appeared on Television One news and will shortly be appearing in a half-hour interview with Triangle TV.

Early in December 2003 the City Missioner, Dianne Robertson, had stated that regional growth is creating more homeless people. She added: “Things like traditional boarding houses are closing and are being replaced by apartment buildings……We have a lot less affordable and accessible housing for low-income single people in the city” (1).

Anecdotal evidence from the Night Shelter and the City Mission suggests there are about 400 homeless in the Auckland region however there are also those living in garages and low standard boarding houses. In addition increasingly the work force is made up of McJobs at $10/ hour and less – these individuals have little chance of ever owning their own homes with prices averaging $381,000 in the Auckland Region (2).

At present New Zealand has 70,304 invalid beneficiaries and 41,353 sickness beneficiaries (3). The total of 111,657 compares to 17,244 sickness/invalids beneficiaries in 1975 (4). This suggests increasing mental and emotional problems in society. Again anecdotal evidence from the same sources suggests that a number of the homeless have mental illnesses.

The Right to Housing (“everyone has the right to live somewhere in peace and dignity”) is included in the plan of action. The information kit of the action plan includes the ‘radical’ economic, social and cultural rights – the rights to housing, employment, fair wages, health, education and an adequate standard of living. At present their provision are at the discretion of government and the market. As human rights and enshrined in law they will be protected by the courts as are civil and political rights. Hence, for example, they could protect against homelessness and ensure ‘affordable’ housing. These rights can be provided by the public or private sectors but ‘the buck stops’ with government who must ensure them. An example of the right to shelter in operation was Grootbroom – a case in South Africa (October 2000) when a group of 500 children and 400 adults who were homeless made a claim under the right to housing ( Unlike New Zealand South Africa’s constitution includes ESC rights which are also amenable to judicial determination i.e. are justiciable). The court decided that the housing programs in place were ‘clearly inadequate’ and that economic, social and cultural rights were justiciable. The court ordered the government ‘to devise and implement a program within available resources to realize progressively to right of access to adequate housing’ (5).

The covenants on civil and political rights and economic, social and cultural rights were ratified by New Zealand under international law in 1978 however only civil and political rights were bought into New Zealand law in the form of the Human Rights Act 1993 and the NZ Bill of Rights Act 1990.

‘Core Obligations’ re economic, social and cultural rights could also protect against long term unemployment, ‘sweat shop’ working conditions, the use of food banks, begging, benefits below the poverty line, third world diseases and serious cases on the hospital waiting list. However the information kit in the plan of action states in relation to the right to an adequate standard of living which would address these human rights abuses that: “ The actual implementation of this right, in New Zealand, will depend on what the country can afford, and competing claims and priorities”. However this is not the view of the United Nations Committee on Economic, Social and Cultural Rights which considers that lack of resources is no excuse for not providing ‘core obligations’ (extremely poor countries are entitled to international assistance under the covenant on economic, social and cultural rights). Paul Hunt, who was New Zealand’s independent expert on United Nations Committee of Economic, Social, and Cultural Rights (ESC rights) states: “…. A state has minimum ‘core’ treaty obligations from which it may not resile” (6).

Kitty Arambulo states: The United Nations Committee on Economic, Social and Cultural Rights observed that ‘a minimum core obligation to ensure the satisfaction of at the very least, minimum essential levels of each of the rights (are) incumbent upon every State party’ (7). Also according to the General Comment of the UN Committee on ESC rights, “ a State party in which any significant number of individuals are deprived of essential food stuffs, of essential primary health care, of basic shelter and housing, or of most basic forms of education is, prime facie, failing to discharge its obligations under the Covenant” (8).

The action plan seems to have had little publicity over the past 12 months (the Human Rights Commission cite 10 articles while index NZ at the public library record no newspaper or magazine articles). The Human Rights Commission have been discussing the plan of action with interested groups (about 35 in Auckland so far) but the general population, from my observation, seems to know very little about it. This is not surprising given that Section 5(a) of the Human Rights Act 1993 has required that New Zealanders be educated in economic, social and cultural rights but since the act’s inception the Human Rights Commission state that successive governments have refused to fund it. Now, in a relatively short space of time, New Zealanders are expected to understand these human rights.

It is also interesting, and not surprising, to note that a study, entitled Economic, Social and Cultural Rights – A Time For Reappraisal (9), done for the Business Round Table in 1997 also excludes ‘core obligations’. The author, Bernard Robertson, editor of the New Zealand Law Journal, considered that there are negative and positive rights and that economic, social and cultural rights should only be viewed negatively. He states in the Executive Summary: “If the rights enumerated in the Covenant are reappraised purely as negative rights, the Covenant and the Committee set up to supervise its implementation have the opportunity to make a positive contribution to the welfare of citizens internationally. At present, however, the Committee and many commentators show little sign of understanding the issues…..”. As negative rights economic, social and cultural rights would ensure such matters as free choice of employment and non-discrimination in employment which do not involve the provision of resources.. However he considers that positive rights involve the provision of resources which distorts the free market and infringes others’ civil and political rights e.g. higher taxes would constrain the right to liberty. However the fulfillment (provision) of ESC rights is generally recognised as one of the duties of government. The UN Committee on ESC rights states: “Most frequently, obligations are divided into “layers” reflecting duties to (a) respect, (b) protect, (c) promote, and (d) fulfil each of the rights contained in the Covenant (10). Paul Hunt states: “The tertiary obligation to fulfil requires duty-holders to provide resources……(this) includes a duty to provide social security when individuals have no alternative way to satisfy their basic needs” (11).

Furthermore Robertson states in the Executive Summary: “The International Covenant on Economic, Social and Cultural Rights cannot stand up to detailed analysis. The rights enumerated in the Covenant are selective and politically biased. Many of the ‘rights’ contained therein are internally self-contradictory or are impossible for governments to implement while continuing to respect civil and political rights”.

However Robertson ignores the fact that civil and political rights without economic, social and cultural rights are also politically biased. Civil and political rights coupled with the rights of property and contract (embedded in common law) strongly favour the most powerful sector of New Zealand society – the professional sector (both public and private) who own and/or control the means of production and the media. In other words they decide who to hire, who to fire and who to exploit (the rights property, liberty and contract) and wield considerable influence through the media (freedom of speech) and many powerful groups (the rights to association) such as the Business Round Table. In other words when freedom and democracy (civil and political rights) is advocated by America and social justice (economic, social and cultural rights) is excluded this translates into greater freedom and democracy for middleclass professions and minimal freedom and democracy for the least powerful as the gap between the two widens. Noam Chomski states that economic, social and cultural rights are “largely dismissed in the West” and in the United States the “contempt for the socio-economic provisions of the (Universal) Declaration are….deeply ingrained” (12). The American constitution excludes these human rights and America is the only industrialised country not to have ratified the Covenant on ESC rights under international law. Usually the least powerful will only utilize civil and political rights when pushed to the wall. For instance the mass demonstrations from Seattle to Calcun took about 15 years after the introduction of the neo-liberal ideology. In the meantime the most powerful benefited greatly. Now, coincidently, September 11 has given the US an excuse to restrict civil liberties. More resources/empowerment for the most economically disadvantaged would enable them to better access their civil and political rights. For example there is little individual freedom (which is promoted by civil and political rights) when faced with the insecurity and desperation of homelessness. The civil and political rights of homeless people are often infringed. They can live a very precarious existence with their rights to life and security of person often in jeopardy. Their rights to liberty, freedom of movement, freedom of speech and freedom of association are severely curtailed. They are often discriminated against because of their poverty particularly in our user-pays environment. Their poverty can also affect their right to a fair trial. Insecurity and desperation means that they are often unstable and more prone to violence, suicide and other anti-social behaviour.

According to Henry Shue it is ‘fraudulent….to promise liberties in the absence of security, subsistence and any other basic rights’(13).

Also Steiner and Alston state: “….without access to adequate food, clothing, income, education, housing and medical care it becomes impossible to benefit from most traditional human rights guarantees….”(14). It is likely to be wishful thinking but at a time when anti-terrorism laws pose a threat to civil liberties the liberal middleclass could find that by supporting the civil and political rights of the most economically disadvantaged they will be supporting their own. And in so doing this left-wing section of the elite will help address the injustices which are likely to be the underlying causes of terrorism. In my opinion the world is veering towards increasing authoritarianism because of the War on Terrorism and the attempts to control nearly half the world’s population living on $2 per day.

PM Helen Clark states that the New Zealand Prime Minister she most wishes to emulate is Peter Fraser (15). Probably what Peter Fraser was most noted for at the time, but little has been said since, is heading the New Zealand delegation to the Great Debate at the United Nations in 1948. The New Zealand delegation antagonised the West by fighting to have economic, social and cultural rights included in the Universal Declaration of Human Rights. The Western capitalists promoted civil and political rights, the human rights of most value to middle class professionals, while the Eastern Communists championed economic, social and cultural rights of most value to the most disadvantaged and workers. The New Zealand delegation at the UN wanted both sets of human rights so the interests of all are considered. Professor Paul Lauren who visited this country to research this aspect of New Zealand’s history stated: “In launching this revolution, New Zealand was far out in front of other nations, though its role is not generally known and certainly not appreciated” (16). While this bi-polar world existed it was in the interests of the western elite to ensure their people were well looked after because the people had an ‘out’ – communism. The UN constantly maintained and still does, at least in terms of rhetoric, that economic, social and cultural rights and civil and political rights should have equal status (Limburg principles (1987), Vienna Declaration (1993)) but following the collapse of Eastern European communism i.e. the ‘triumph’ of capitalism economic, social and cultural rights became marginalized at the UN as it is at the International Monetary Fund and the World Bank. David Beetham states that “although in theory the end of the Cold War could have provided an opportunity for ending the sterile opposition between the two sets of human rights, in practice it has reinforced the priorities of the USA, the country which has been most consistently opposed to the idea of economic and social rights” (17). The west, seeing their people had no ‘out’, moved to the right. Greater freedom, with globalisation and privatization added to civil and political rights already in existence, allowed the rich and powerful further ability to oppress and exploit the people, especially the poorest. Other forces were at work to ensure the now almost total dominance of the neo-liberal ideology. For instance Francis Fukuyama states that the number of liberal countries in 1990 was 61 about double that in 1975 indicating the liberal ideology was growing in strength prior to the collapse of communism in 1989 (The End of History AND the Last Man, Avons Books Inc 1992, pp49-50). In my opinion the neo-liberal ideology appeals particularly to elites who see the benefits of an increasing gap in their power and wealth. Also we have seen the increasing dominance of the professional sector in parliament. In the year 2000, 77.1% of MPs were from a professional, semi-professional background (18) compared to only 17.9% in 1935 and 73.2% in 1984 (19). The dominance of this economic sector leaves the rest feeling helpless and cynical about their ability to change anything. It is not surprising that since 1989 we have strengthened civil and political rights through the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (along with many other western countries). There are now many commissions to promote these human rights. Hence the principle of equal status of civil and political rights and economic, social and cultural rights was further considerably tilted in favor of the former and this meant greater power for the elite. Whereas in the past governments were seen as ‘good’ if they reflected the will of the people they were now seen as ‘good’ if they abided by human rights (or rather a select group of human rights which considerably favors the elite). New Zealanders are kept ignorant of ideology and class by the media. For instance, there was little education in human rights prior to the enactment of the NZ Bill of Rights Act 1990. In July 1987 the Select Committee’s Interim Report on the bill of rights ‘began by noting that the Committee was disappointed with the level of the debate. “It would be fair to say” said the Committee, “that the concept of a Bill of Rights has not yet grasped the imagination of the wider public of New Zealand” and yet the New Zealand Bill of Rights Act was passed in 1990.Although not entrenched, by 1995 “there was little doubt that the Bill of Rights was much more significant than had been thought by opponents and proponents alike” (20). And as already stated they have been given very little education in economic, social and cultural rights (these were only added to secondary school curriculums in 2003).

The ‘triumph’ of capitalism leading to the overwhelming dominance of the neo-liberal ideology saw trade unions applying their former socialist principle (from each according to their ability to each according to their needs) to only themselves ignoring their historic concern for the most disadvantaged. In my correspondence, dated 9th June, 1997, with the then President of the Combined Trade Unions, Mr Ken Douglas, he stated that the union focus was on worker’s rights as laid down in the International Labour Organisation’s conventions. He added that while he thought the idea of social principles in the Bill of Rights was ‘complementary to the CTU’s campaign on the rights of workers…(.but there were) no plans to broaden our campaign’. Hence the trade unions were only concerned with that part of ESC rights which dealt with workers rights. Instead, in my opinion, they became engaged in an unholy alliance with middle class professionals to mutually oppress and exploit the most disadvantaged. In my opinion this political opportunism meant that the socialist vision of a world in co-operation for the mutual benefit of all its members was cynically push aside.

The closest New Zealand got to having ESC rights in law was in 1986 when the Justice and Law Reform Select Committee was considering the White Paper’s proposal for a Bill of Rights. The Committee’s final report suggested that a bill of rights should include key ESC rights. This recommendation was, however, rejected in the Parliamentary debate on the Bill (21).

In 1994 one of the principle concerns of the United Nations Committee on ESC rights was the failure of New Zealand governments to include ESC rights in the text of the New Zealand Bill of Rights Act 1990 (22). Our government overlooked this concern and at the next meeting of committee in 2003 our government expressed the view that ESC rights may not be able to be dealt with by the courts to which the committee responded that ‘the committee notes with regret the view expressed by the State party’s delegation that ESC rights are not necessarily justiciable (i.e. not amenable to judicial determination)’ (23). Unless our governments have a change of heart this does not auger well for the fulfilment of ‘core obligations’ economic, social and cultural rights and hence the interests of the poor in this country. Incidently, anyone can become poor.

In my opinion the main reason most countries maintain a social abyss is to ensure power. It is generally not due to lack of resources. The social abyss undermines the power of the trade unions and ensures elite control. People are afraid to challenge the neo-liberal ideology because they might end up in the social abyss. Some authoritarian regimes ensure power by engaging in torture and even death squads but a neo-liberal regime uses the social abyss (usually involving far greater numbers), with its high suicide and incarceration rates, to fulfil the same purpose. Those countries where lack of resources are a problem are entitled under Article 11 of the International Covenant of Economic, Social and Cultural Rights to seek international assistance. It is very unlikely that New Zealand falls under this category. In addition the covenant requires that states use ‘the maximum of available resources’ to ensure economic, social and cultural rights (Article 2(1)). Therefore as many countries have experienced an increase in the gap between rich and poor they cannot then claim to be unable to fulfil core obligations while allowing the rich to get richer.

It could be said that the elimination of extremes such as the death penalty and slavery is the measure of how civilized a society is. It is hoped that the action plan will take a similar view towards extreme socio-economic conditions such as homelessness and include ‘core obligations’ in its recommendations in 2005. Ultimately the aim, with the approval of the people, is to have ESC rights in the NZ Bill of Rights Act 1990 which will then be entrenched. In the meantime I believe the focus should be on the NZ Plan of Action for Human Rights. People can write to the Human Rights Commission and make their views known.

Bibliography.

1. New Zealand Herald, 1st December 2003.

2. New Zealand Herald, 18th December 2003.

3. New Zealand Herald, 5th December 2003.

4. Broken Welfare, North and South magazine, May 2000.

5. Hilary Charlesworth, Writing In Rights, UNSW Press 2002, pp68-69.

6. New Zealand Herald, 15th March 1993.

7. Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, 1999 Intersentia, p41.

8. General Comment 3: The Nature of State Parties obligations, quoted in Audrey Chapman, A “violations Approach”…, Human Rights Quarterly 18(1996). Also see: Audrey Chapman and Sage Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights.

9. See www.nzbr.org.nz (under Constitutional issues and governance).

10. United Nations Committee on Economic, Social and Cultural Rights. Fact Sheet No. 16 (Rev.1), www.unhchr.ch/html/menu6/2/fs16.htm.

11. Paul Hunt, The UN and ESC rights…., Human Rights Law and Practice, Vol 5, p89.

12. Noam Chomski, The United states and the Challenge of Relativity 1998, pp32-39.

13. Henry Shue, Basic Rights – Subsistence, Affluence and U.S. Foreign Policy, Princeton University press 1980, p58.

14. Steiner H.J. & Alston P., International Human Rights in Context: Law, Politics, Morals, Oxford: Claredon Press, 1966, p303.

15. New Zealand Herald, 29th November 2003.

16. New Zealand Herald, 10th December 1998.

17. David Beetham, What future for Economic, Social and Cultural Rights? Political Studies (1995), XL111, p43.

18. My own research.

19. Jack Nagel, British Journal of Political Science (1998).

20. ed Paul Richworth, Grant Huscroft, Rights and Freedoms, Brooker’s Ltd 1995, pp15 – 27.

21. Margaret Bedggood, Constitutional Rights and Responsibilities in Aotearoa/New Zealand, Otago Law Review (1998), Vol 9 No.2, pp345 – 346.

22. see www1.umn.edu/humanrts/esc/NEWZELND.htm (refer to Principle Subjects of Concern, No. 12).

23. see www.umn.edu/humanrts/esc/newzealand2003.htm1 (refer to Principle Subjects of Concern, No. 11)

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