LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

26 Chapter 2
2.2.4 Vagueness of socio-economic rights
The other objection to the enforcement of socio-economic rights is
their vagueness. In some circles, socio-economic rights are seen as
more indeterminate. 52 The provisions of ICESCR are said to be vague
to the extent that a judge cannot determine the precise scope of the
right, whereas the ICCPR provisions are said to be precise. 53 Similarly,
it has been submitted by some scholars, even very recently, that
socio-economic rights are merely broad assertions, which puts them
in unmanageable territory for the courts. 54
The most immediate response to this objection has been that civil
and political rights are no different. 55 It is not true, as has been
suggested, that civil and political rights mean exactly the same thing
everywhere. 56 Some civil and political rights, such as freedom of
speech, and the right to protection of human dignity or protection
from inhuman and degrading treatment are also vague. Most
importantly, however, where the vagueness of civil and political
rights has partly been cleared up through many years of adjudication;
socio-economic rights have not had a similar advantage. 57 This is one
of the reasons why a complaints procedure to ICESCR has been
adopted. 58 To deny the justiciability of socio-economic rights is to
52 Scott & Macklem (n 9 above) 45. See also B Andreassen et al ‘Assessing human
rights performance in developing countries: The case for a minimum threshold
approach to economic and social rights’ in B Andreassen & A Eide (eds) Human
rights in developing countries 1987/88: A yearbook on human rights in countries
receiving Nordic aid (1988) 333 335. They argue that phrases such as ‘just and
favourable conditions of work’, ‘fair wages’, a ‘decent standard of living’, ‘safe
and healthy working conditions’, an ‘adequate standard of living’ and ‘adequate
food, clothing and housing’, as used in ICESCR, do not greatly help analysts in
determining the substantive contents of these rights, or measuring empirically
the degrees of implementation of specific rights (335-336).
53
This objection has been maintained even presently. This is seen at the first
session of the Open-Ended Working Group to consider options regarding the
elaboration of an optional protocol to the International Covenant on Economic,
Social and Cultural Rights (Open-Ended working Group). Some delegates argued
that some of the provisions of the Covenant are drafted in imprecise terms, which
gives rise to a lack of predictability on the part of the Committee. See para 53 of
the Report of the Working Group, UN Doc E/CN.4/2004/44, dated 15 March 2004.
54 See eg A Neier ‘Social and economic rights: A critique’ (2006) 13 Human Rights
Brief 1 3.
55
Some of the delegates at the session of the Open-Ended Working Group argued
that ICESCR does not differs from ICCPR in this respect; that it was for the
interpreters of the treaty to apply a particular provision of the Covenant to
concrete cases as is the practice of the ESCR Committee in considering state
reports; UN Doc E/CN.4/2004/44 para 53.
56 Neier (n 54 above) 2 has suggested that the right to free speech, the right to
assemble and the right not to be tortured mean the same thing all over the world.
57 See Sepúlveda (n 23 above) 132.
58 See P Alston ‘No right to complain about being poor: The need for an optional
protocol to the economic rights Covenant’ in A Eide & J Helgesen (eds) The future
of human rights protection in a changing world: Fifty years since the four
freedoms address: Essays in honour of Torkel Opsahl (1991) 88. See also L Chenwi
& C Mbazira ‘The Draft Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights’ (2006) ESR Review 9.