[Imc-aotearoa-ed] Optional Protocol

[anthony ravlich]

To All,

 

 

The New Zealand government may be less concerned for the poor than many New Zealanders might believe. This may be seen at the United Nations, Geneva, during this week when according to Edwin Berry, legal officer of the International Commission of Jurists, New Zealand is one of the countries which may not be supporting an Optional Protocol, a complaints procedure, for the poor.

>From Feb 23 to March 5, 2004, an Open-ended Working Group (open to representatives from all countries) will be working on an Optional Protocol for the International Covenant on Economic, Social and Cultural Rights. This is a complaints procedure similar to that for civil and political rights (New Zealand has already ratified the Optional Protocol for Civil and Political Rights). For example, if subject to discrimination we can complain to the Human Rights Commission or take the case to court under the NZ Bill of Rights Act. With an Optional Protocol for economic, social and cultural rights serious social injustices in the areas of employment, wages, health, housing, education etc can be dealt with in a like manner. If domestic remedies have been exhausted without satisfaction the complainant can take his/her case to the United Nations. Mr Berry said that he believed that New Zealand was sending a representative to the working group and furthermore he believed that New Zealand was
 anti-Optional Protocol (tel 004122 979 3808, International Commission of Jurists, 81A, avenue de Chatelaine, PO BOx 216, CH - 1219 Chatelaine/Geneva, Switzerland). However I have been unable to get confirmation of this in New Zealand despite emailing Margaret Wilson, Phil Goff and the Ministry of Foreign Affairs on a number of occasions. But I can only suspect Mr Berry's view is correct because last year the report of the United Nations Committee of Economic, Social and Cultural Rights criticised New Zealand for rejecting the view that economic, social and cultural rights are justiciable (i.e. can be dealt with by a court and hence a complaints procedure would be rather ineffective). I have also sent information to all the media in Auckland but to my knowledge nothing has been reported. But perhaps that is not surprising given that the media has said little about the New Zealand Plan of Action for Human Rights presently being conducted by the Human Rights Commission. This plan of
 action contains the radical economic, social and cultural rights, and the optional protocol will have a direct bearing on the action plan's outcome yet Rosalynn Noonan says the Human Rights Commission has no position on the optional protocol. 

The coalition of NGOs for the Optional Protocol (see ESCR-net) considers the above working group to be very important regarding the status of economic, social and cultural rights and hence the prospects of the worlds poor.

Incidently, economic, social and cultural rights can be manipulated by disingenuous governments and global bodies. For example they can just say they are dependent on resources (irrespective of the gap between rich and poor, or economic policies being pursued). This is the present position of  the action plan (not finalised until 2005). Or the 1997 study by Bernard Robertson for the NZ Business Round Table (Economic, Social and Cultural Rights - Time for a Reappraisal, on the web) considers that economic, social and cultural rights should only be viewed from a negative perspective - government respects and protects individual choice but makes no allowance for the fact that often the most disadvantaged have extremely limited choices and like fledgling small business and entrepreneurs often need assistance.

The Human Rights Commission will readily admit that since the Human Rights Act's inception in 1993 successive governments have refused to fund Section 5 (a) of the act which requires that New Zealanders be educated in economic, social and cultural rights. Now in what amounts to a major constitutional issue New Zealanders who have been given little information may well find in 2005 that decisions are made for them. To maintain as the commission might that they have contacted many NGOs means little to me as in my experience NZ NGOs are almost completely controlled by government. 

In my opinion to get this into the New Zealand media is very unlikely although I am hopeful that at least one MP can attract media attention as this information is so important for New Zealanders irrespective of the fact that many might not be interested. Failing that perhaps you can convey this information in your personal capacity.Much more information is readily available to those interested e.g. you may find the attached article of interest.

 

Anthony Ravlich (Mob: O21 162 4435)

Chairperson,

The New Zealand Council of Economic, Social and Cultural Rights Inc.

 

 

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

A View from the Poor.

 

Anthony Ravlich MA, BSc, Dip Crim (Hons), unemployed by the mainstream since 1991. Mob: 021 162 4435.

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 PS 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 between 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.

 

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.

 

   New Zealand Herald, 1st December 2003.
   New Zealand Herald, 18th December 2003.
   New Zealand Herald, 5th December 2003.
   Broken Welfare, North and South magazine, May 2000.
   Hilary Charlesworth, Writing In Rights, UNSW Press 2002, pp68-69.
   New Zealand Herald, 15th March 1993.
   Kitty Arambulo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights, 1999 Intersentia, p41.
   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.
   See www.nzbr.org.nz (under Constitutional issues and governance).
   United Nations Committee on Economic, Social and Cultural Rights. Fact Sheet No. 16 (Rev.1), www.unhchr.ch/html/menu6/2/fs16.htm.
   Paul Hunt, The UN and ESC rights…., Human Rights Law and Practice, Vol 5, p89.
   Noam Chomski, The United states and the Challenge of Relativity 1998, pp32-39.
   Henry Shue, Basic Rights – Subsistence, Affluence and U.S. Foreign Policy, Princeton University press 1980, p58.
   Steiner H.J. & Alston P., International Human Rights in Context: Law, Politics, Morals, Oxford: Claredon Press, 1966, p303.
   New Zealand Herald, 29th November 2003.
   New Zealand Herald, 10th December 1998.
   David Beetham, What future for Economic, Social and Cultural Rights? Political Studies (1995), XL111, p43.
   My own research.
   Jack Nagel, British Journal of Political Science (1998).
   ed Paul Richworth, Grant Huscroft, Rights and Freedoms, Brooker’s Ltd 1995, pp15 – 27.
   Margaret Bedggood, Constitutional Rights and Responsibilities in Aotearoa/New Zealand, Otago Law Review (1998), Vol 9  No.2, pp345 – 346.
   see www1.umn.edu/humanrts/esc/NEWZELND.htm (refer to Principle Subjects of Concern, No. 12).
   see www.umn.edu/humanrts/esc/newzealand2003.htm1 (refer to Principle Subjects of Concern, No. 11) 

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

 

 



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