The right to an adequate standard of living requires, at a minimum, that everyone shall enjoy the necessary subsistence rights: adequate food and nutrition, clothing, housing and the necessary conditions of care when required. The essential point is that everyone shall be able, without shame and without unreasonable obstacles, to be a full participant in ordinary, everyday interaction with other people. Thus, people should be able to enjoy their basic needs in conditions of dignity. No one should have to live in conditions whereby the only way to satisfy their needs is by degrading themselves or depriving themselves of their basic freedoms, such as through begging, prostitution or forced labour.
In purely material terms, an adequate standard of living implies living above the poverty line of the society concerned, which according to the World Bank includes two elements: ‘The expenditure necessary to buy a minimum standard of nutrition and other basic necessities and a further amount that varies from country to country, reflecting the cost of participating in the everyday life of society.’ ICESCR General Comment 12 finds that what is ‘adequate’ ‘is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions’.
Even though economic, social and cultural rights instruments establish the principle of progressive realisation, this principle does not exclude immediate obligations (see textbox on ‘progressive realisation’); steps towards this goal must be taken immediately. In addition, the prohibition of discrimination of any kind with regard to access to adequate food, clothing and housing, on grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status, with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of this right, is an immediate obligation for states parties to major human rights treaties.
According to Article 25(1) UDHR, ‘everyone has the right to a standard of living adequate for the health and well-being of himself and his family’. This provision sets out some of the elements of this right: a) food; b) clothing; c) housing; d) medical care; and e) necessary social services.
Under Article 11 ICESCR, everyone has the right to ‘an adequate standard of living for himself and his family’. The Committee on Economic, Social and Cultural Rights has issued several General Comments explaining the components of this right including the right to adequate housing (General Comments 4 and 7), the right to food (General Comment 12), the right to water (General Comment 15) as well as the right to social security (General Comment 19). Through these General Comments, the Committee elaborates on which criteria are to be met to fulfil the rights to housing, food and water and provides the single most comprehensive interpretation of these rights under international law (a more detailed discussion of each of these rights follows below).
The right to an adequate standard of living is included in several other human rights treaties. Under Article 27 CRC, ‘States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’. Under Article 14 CEDAW, ‘States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas [...] to ensure [...] the right [...] to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications [....]’. The CERD recognises the right of everyone, without distinction as to race, colour, or national or ethnic origin, to enjoy, inter alia, the right to housing, and the right to social security and social services. Article 28 CRPD sets out the right to an adequate standard of living and social protection.
In addition, some instruments aimed at the protection of people under specific circumstances also contain provisions relating to an adequate standard of living. This is the case, for example, of the Convention Relating to the Status of Refugees and the Geneva Conventions. The Convention Relating to the Status of Refugees provides for the right to housing (Article 21), public relief and assistance (Article 23) and social security for refugees (Article 23). The right to an adequate standard of living is also envisaged in Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts, which declares in Article 54(1) that starvation of civilians as a method of warfare is prohibited. Article 54(2) prohibits attack, destruction, removal, or rendering useless objects indispensable to the survival of the civilian population, such as foodstuffs, water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whether in order to starve out civilians, to cause them to move away, or any other motive. Protocol II on Non- International Armed Conflicts has a similar provision in Article 14. Although these provisions are not formulated as human rights per se, they are aimed at ensuring that persons or groups that do not or no longer take part in hostilities are not denied the enjoyments of these rights.
At the Inter-American level, although the ACHR deals primarily with civil and political rights, it includes in Article 26 a general provision on economic, social and cultural rights. The ACHR alludes indirectly to the right to an adequate standard of living when it refers in Article 26 to the commitment of states parties to take measures to guarantee ‘the full realisation of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter’. According to Article 26 ‘states parties undertake to adopt measures, both internally and through international co-operation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realisation’ of these rights. The principle of progressive realisation is not unique to this Convention; it is also contemplated, for example, in Article 1 Protocol of San Salvador and Article 2(1) ICESCR. While compliance with the principle of ‘progressive realisation’ depends on the availability of resources, this provision also prescribes particular conduct that is compulsory for all states parties, regardless of their level of development. In this regard, Article 26 ACHR imposes the obligation to continuously improve conditions and the prohibition of taking deliberately retrogressive measures. This interpretation finds support in the recent jurisprudence of the Inter-American Commission on Human Rights (e.g., Miranda Cortez et al. v. El Salvador (Case 11.670)). Additionally, the Protocol of San Salvador deals in Article 12(1) with the right to an adequate standard of living. Article 12(1) provides that ‘everyone has the right to adequate nutrition which guarantees the possibility of enjoying the highest level of physical, emotional and intellectual development’.
At the European level, in Article 4(1) European Social Charter, the contracting parties undertake ‘to recognise the right of workers to remuneration such as will give them and their families a decent standard of living’. Moreover, the European Social Charter (Revised) includes Article 31 on the right to housing. Protection of the right to housing is also to be found in Articles 16 and 19(4) of the European Social Charter, and in Article 4 of the Additional Protocol to the Charter.
At the African level, the ACHPR does not expressly guarantee the right to an adequate standard of living, housing or food. However, these rights are not outside the scope of interpretative possibilities open to the African supervisory bodies and would be well-covered by a combined reading of Articles 5 and 14-18 ACHPR. The African Commission confirmed this in The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96 where it found violations of the rights to housing and food, neither of which are expressly recognised by the Charter. In an innovative interpretation, the Commission held that the right to housing or shelter is implicitly entrenched in the totality of the right to enjoy the best attainable standard of mental and physical health, the right to property and the protection of the family. Likewise, the right to food was implied in the rights to life, health and to economic, social and cultural development.
States have also committed to the realisation of the right to an adequate standard of living in several international instruments, such as the Declaration on the Right to Development (Article 8); the Universal Declaration on the Eradication of Hunger and Malnutrition (Article 1); the Rome Declaration of the World Food Summit; Agenda 21 (e.g., Chapters 3 and 7); the Habitat Agenda (e.g., paragraphs 36 and 116); the Declaration of Alma-Ata on Primary Health Care; the Platform of Action of the Fourth World Conference on Women; the Declaration on the Protection of Women and Children in Emergency and Armed Conflict; the Standard Minimum Rules for the Treatment of Prisoners; the Declaration on the Rights of Mentally Retarded Persons; the Declaration on the Rights of Disabled Persons; and the UN Declaration on the Rights of Indigenous Peoples.
Within the framework of the UN specialised agencies, the rights related to the right to an adequate standard of living have been dealt by the International Labour Organisation (ILO), the Food and Agricultural Organisation of the United Nations (FAO) and the World Health Organisation (WHO). Under the framework of these organisations, several instruments aimed at the protection of an adequate standard of living have been adopted, such as ILO 117 on Social Policy and ILO 169 concerning Indigenous and Tribal Peoples. The UN Guiding Principles on internally displaced persons requires that competent authorities ensure safe access to a) essential foods and potable water; b) basic shelter and housing; c) appropriate clothing; and d) essential medical services and sanitation.
The UN Committee on Economic, Social and Cultural Rights is the body which has provided the most comprehensive examination of the right to adequate standard of living. The following analysis will therefore follow the Committee’s General Comments 4, 12 and 15.
1. ELEMENTS OF THE RIGHT TO ADEQUATE FOOD
The right of everyone to an adequate standard of living includes the right to adequate food. The right to food is accomplished when every man, woman and child, alone or in a community with others, has physical and economic access at all times to adequate food or the means for its procurement. The right to food has to be realised progressively. However, the state has a core obligation to take the necessary action
to mitigate and alleviate hunger as provided for in Article 11(2) ICESCR, even in times of natural or other disasters. The right to food and the inherent dignity of the human person are inseparable and without food it is not possible to fulfil other rights.
According to General Comment 12, the core content of the right to adequate food includes the following elements:
a) Availability of food: In a quantity and quality sufficient to satisfy the dietary needs of individuals. Dietary needs implies that the diet as a whole contains a mix of nutrients for physical and mental growth, development and maintenance, and physical activity that are in compliance with human physiological needs at all stages throughout the life cycle and according to gender and occupation. Measures may therefore need to be taken to maintain, adapt or strengthen dietary diversity and appropriate consumption and feeding patterns, including breast-feeding, while ensuring that changes in availability and access to food supply at the very least do not negatively affect dietary composition and intake.
b) Food safety: Food should be free from adverse substances. States should establish a range of protective measures by both public and private means to prevent contamination of foodstuffs through adulteration and/or through bad environmental hygiene or inappropriate handling at different stages throughout the food chain; care must also be taken to identify and avoid or destroy naturally occurring toxins.
c) Acceptability: Food should be acceptable within a given culture. Cultural or consumer acceptability implies the need also to take into account, as far as possible, perceived non nutrient-based values attached to food and food consumption and informed consumer concerns regarding the nature of accessible food supplies.
d) Availability: This refers to the possibilities either for feeding oneself directly from productive land or other natural resources, or for well functioning distribution, processing and market systems that can move food from the site of production to where it is needed.
e) Accessibility: This encompasses both economic and physical accessibility.
Economic accessibility: implies that personal or household financial costs associated with the acquisition of food for an adequate diet should be at a level such that the attainment and satisfaction of other basic needs are not threatened or compromised. Economic accessibility applies to any acquisition pattern or entitlement through which people procure their food and is a measure of the extent to which it is satisfactory for the enjoyment of the right to adequate food. Socially vulnerable groups, such as landless persons and other particularly impoverished segments of the population may need attention through special programmes.
Physical accessibility: implies that adequate food must be accessible to everyone, including physically vulnerable individuals, such as infants and young children, elderly people, the physically disabled, the terminally ill and persons with persistent medical problems, including the mentally ill. Victims of natural disasters, people living in disaster-prone areas and other specially disadvantaged groups may need special attention and sometimes priority consideration with respect to accessibility of food. A particular vulnerability is that of many indigenous population groups whose access to their ancestral lands may be threatened.
FOOD AND AGRICULTURAL ORGANISATION OF THE UNITED NATIONS (FAO)
The aim of the FAO is to achieve food security for all. In this regard, it is important to recall the World Food Summit, convened by FAO in 1996. As a result of this meeting, 112 heads or deputy heads of state and government, and over 70 high-level representatives from other countries, adopted the Rome Declaration on World Food Security and the World Food Summit Plan of Action. The Rome Declaration sets forth seven commitments, which lay the basis for achieving sustainable food security for all, while the Plan of Action spells out the objectives and actions relevant for practical implementation of these seven commitments. The Declaration and Plan of Action establish a particular follow-up mechanism through co-operation between the High Commissioner for Human Rights, FAO and its Committee on World Food Security as well as other food organisations, the United Nations Children’s Fund (UNICEF), the Sub-Committee on Nutrition of the United Nations Administrative Coordinating Committee (ACC-SCN) and other bodies.
2. ELEMENTS OF THE RIGHT TO ADEQUATE HOUSING
The right to adequate housing derives from the right to an adequate standard of living and is of central importance for the enjoyment of all economic, social and cultural rights. The right to adequate housing is enshrined in most major human rights instrumentsadopted by the United Nations: Article 25 UDHR; Article 11 ICESCR; Article 14 CEDAW; Article 5 CERD; Article 27 CRC; Article 43 CMW; and Article 28 CRPD. In addition, it is included in Article 31 of the European Social Charter (revised) and Article 21 of the Convention Relating to the Status of Refugees.
The UN estimates that around 100 million people world-wide have no place to live and more than one billion people are inadequately housed. Individuals, as well as families, are entitled to adequate housing regardless of factors such as age, economic status, group or other affiliation or status. Thus, the enjoyment of this right may not be subject to any form of discrimination.
The UN Commission on Human Rights repeatedly stressed that the right to adequate housing is a component of the right to an adequate standard of living (see, e.g., Resolutions 2002/21 and 2003/27) and its successor, the Human Rights Council, has followed suit.
The right to housing means more than just a roof over one’s head. It should be seen as the right to live somewhere in security, peace, and dignity. The requirements for adequate housing have been defined in General Comments 4 and 7 of the Committee on Economic, Social and Cultural Rights. According to the Committee the core content of the right to adequate housing includes the following elements:
a) Security of tenure: Security of tenure is the cornerstone of the right to adequate housing. Secure tenure protects people against arbitrary eviction, harassment and other threats. Most informal settlements and communities lack legal security of tenure, and millions of people currently live in homes without adequate secure tenure protection. Security of tenure is a key issue for all dwellers, particularly women. Women who are particularly vulnerable include those experiencing domestic violence and have to flee their homes and women who do not have title to their homes or lands and can therefore be easily removed, especially upon marriage dissolution or death of a spouse.
b) Affordability: The principle of affordability stipulates simply that the amount a person or family pays for their housing must not be so high that it threatens or compromises the attainment and satisfaction of other basic needs. Affordability is an acute problem throughout the world and a major reason why so many people do not have formal housing, and are forced as a result to live in informal settlements. In affluent countries, individuals and families living in poverty find it increasingly difficult to find affordable adequate housing. In many developed countries, when rental housing is unaffordable, tenants’ security of tenure is threatened as they can often be legally evicted for non-payment of rent.
c) Habitability: For housing to be considered adequate, it must be habitable. Inhabitants must be ensured adequate space and protection against the cold, damp, heat, rain, wind or other threats to health, or structural hazards.
d) Accessibility: Housing must be accessible to everyone. Disadvantaged groups such as the elderly, the physically and mentally disabled, HIV-positive individuals, victims of natural disasters, children and other groups should be ensured some degree of priority in housing.
e) Location: For housing to be adequate it must be situated so as to allow access to employment, health care services, schools, childcare centres and other social facilities. It must not be located in polluted areas. When communities are evicted from their homes they are often relocated to remote areas lacking facilities, or to polluted areas, near garbage dumps or other sources of pollution.
f) Cultural adequacy: The right to adequate housing includes the right to reside in housing that is considered culturally adequate. This means that housing programmes and policies must take fully into account the cultural attributes of housing, which allow for the expression of cultural identity and recognise the cultural diversity of the world’s population.
3. ELEMENTS OF THE RIGHT TO ADEQUATE CLOTHING
The right to adequate clothing is more than a physical necessity. It has cultural and religious elements as clothing is often a visible expression of a person’s culture, customs, religion, belief or political opinion (see III§2). Because of the variations in cultural clothing needs and wants, the right to adequate clothing is probably the least elaborated of all the components of an adequate standard of living. The Committee on Economic, Social and Cultural Rights has addressed the right to adequate clothing in several General Comments and in its Concluding Observations on state reports. The Committee has articulated the issue of adequate and appropriate clothing for elderly persons (General Comment 6), the importance of adequate clothing for disabled persons with special clothing needs to enable them to function fully and effectively in society (General Comment 5), and in relation to the right to the highest attainable standard of health, the Committee has recommended that states ensure adequate protective clothing to minimise the risk of occupational accidents (General Comment 14). In its Concluding Recommendations to states the Committee has, inter alia, addressed issues such as the access to sufficient clothing and adequate clothing as part of adequate means of subsistence. The Committee on the Rights of the Child has also made recommendations to several states regarding inadequate clothing of street children and children belonging to other marginalised groups, such as indigenous peoples.
4. ELEMENTS OF THE RIGHT TO WATER
The right to water and the right to an adequate standard of living are intrinsically linked. Enjoyment of the right to water is an essential component of the fulfilment of the right to an adequate standard of living (food and housing) and the right to health. Without equitable access to clean water, these other rights are not attainable.
The right to water is implicit in Article 11(1) ICESCR because its realisation is linked to the realisation of rights such as the right to food, the right to adequate housing, the right to health, the right to earn a living and the right to take part in cultural life. The Committee on Economic, Social and Cultural Rights stressed the importance of the right to water in its General Comment 15:
The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. By contrast, the entitlements include the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water.
General Comment 15 acknowledges that while the adequacy of water may vary according to different conditions, three factors apply in all circumstances:
a) Availability: Each person has the right to a water supply that is sufficient and continuous for personal and domestic uses, such as drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene.
b) Quality: The right to water means that not only are people entitled to a sufficient and continuous supply of water, but they are also entitled to water of adequate quality. Water for personal or domestic use must be safe and free from microorganisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Furthermore, water should be of an acceptable colour, odour and taste for personal or domestic use.
c) Accessibility: The Comment provides that water and water facilities and services must be accessible to everyone, without discrimination, within the jurisdiction of the state party. It identifies four overlapping dimensions of accessibility:
Physical accessibility: water and adequate water facilities and services must be within safe physical reach of all sectors of the population, which is defined as ‘within the immediate vicinity, of each household, educational institution and workplace’. Water should be of sufficient quality, culturally appropriate and sensitive to gender, life-cycle and privacy requirements;
Economic accessibility: water, water facilities and services and the direct and indirect costs and charges associated with securing water must be affordable for all; and
Non-discrimination: access to water and water facilities and services should be realised, in law and in fact, without discrimination on any of the prohibited grounds – race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Information accessibility is defined as including the right to seek, receive and impart information concerning water issues.
Finally, it is important to note that the right to water has also been recognised as a human right in several instruments, such as Article 14 CEDAW and Article 24 CRC. Article 24 CRC, which refers to the right to ‘the highest attainable standard of health’ of children, expressly states that the state ‘shall take appropriate measures’ to provide clean drinking water.
THE RIGHT TO WATER AND SANITATION
In the southern Serbian town of Leskovac, skin diseases have plagued a Romani settlement for many years. The immediate cause is unclean water for bathing; many homes in the settlement lack access to running water and electricity. Since the nearby river cannot be utilised in colder weather, the community resorted to installing wells. But the lack of sanitation resulted in the groundwater being polluted by faeces. Poverty then prevented the community from purchasing clean water or seeking medicines.
This scenario is sadly typical: a situation faced by communities all over the world from burgeoning urban settlements to neglected rural areas in the South and, perhaps surprisingly, amongst a range of marginalised groups in the North. The estimates are that 1.1 billion people are without a minimum supply of water for the most basic needs and 2.6 billion people lack access to basic sanitation.
In November 2002, the UN Committee on Economic, Social and Cultural Rights took the bold step of affirming that the right to water was an integral part of international human rights law. Noting that the ‘right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival’ (General Comment 15 on Right to Water), the Committee derived the right to water from two provisions of ICESCR. Article 11 recognises the ‘right of everyone to an adequate standard of living, including adequate food, clothing and housing’ (emphasis added) and Article 12 provides for the right to health. The right to water has also been recognised in a number of other international instruments, most notably CEDAW, CRC and the Mar Del Plata Action Plan of the United Nations Water Conference.
The Committee stated that ‘ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources’ (General Comment 15, para. 29). The Human Rights Council adopted a resolution in March 2008 emphasising that international human rights law, including ICESCR, CEDAW and CRC, entail obligations in relation to access to sanitation (Resolution 7/22), based on the 2007 ‘Report of the United Nations High Commissioner for Human Rights on the scope and content of the relevant human rights obligations related to equitable access to safe drinking water and sanitation under international human rights instruments.’ In addition, in March 2008, the Human Rights Council appointed an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation.
The content of the right and the obligations of states were extensively defined by the Committee. This included the right of everyone to sufficient, safe, accessible and affordable water for personal and domestic uses and the corresponding duties of states, within their maximum available resources, to respect, protect and progressively fulfil that right without discrimination for residents in their own jurisdiction and, through international assistance and co-operation, for people everywhere. As far as possible, according to the Committee, remedies are to be provided for violations and an examination of case-law shows that Courts and other bodies can make the right justiciable. (See Malcolm Langford, Ashfaq Khalfan, Carolina Fairstein and Hayley Jones, Legal Resources for the Right to Water: International and National Standards, Centre on Housing Rights & Eviction, 2004).
In the case of the settlement in Leskovac mentioned above, it is clear that the situation is not consistent with the right to water. Despite the presence of a nearby water supply system and offers of foreign assistance, no plans were made by local and national government to supply water and sanitation to the community. The local council in Leskovac claims that the housing was built illegally, but the Committee clearly states in its General Comment that housing status should not be used as a reason to deny people access to water. The challenge for this community, and those advocating for them and the right to water and sanitation, is to take the steps to ensure that this international human right is put into practice. Malcolm Langford
Like other social and economic rights, the right to an adequate standard of living is difficult to supervise. Traditionally, economic, social and cultural rights have been considered non-justiciable, i.e. not susceptible to invocation before a court of law and unsuitable as a basis on which a judicial review can be conducted. However, litigation of economic, social and cultural rights is gaining momentum and a growing body of case-law at the domestic, regional and international levels clearly illustrates that a wide variety of economic, social and cultural rights are indeed justiciable.
At the UN level, the Committee on the Elimination of Racial Discrimination has found state discrimination against Roma in the provision of low cost social housing, contrary to Article 5(e)(iii) CERD. As a result these individuals continued to live in very poor conditions (L.R. et al. v. Slovakia). Here retrogressive measures with regard to housing rights led to a finding of state violation (for more on retrogressive measures see textbox on ‘progressive realisation’).
The main obstacle at the international level to the realisation of economic, social and cultural rights has been the lack of individual complaints procedures for violations of these rights. At the universal level, the main supervisory mechanisms currently are the reporting systems of the Committee on Economic, Social and Cultural Rights and the Committee of the Rights of the Child. However, the entry into force of the first Optional Protocol to ICESCR (adopted in December 2008) will mark a watershed as it sets out an individual complaints procedure for victims of violations of economic, social and cultural rights. Individual complaints mechanisms are set out in the Optional Protocol to CEDAW which entered into force in 2000, but its impact is limited. In general, the CEDAW establishes the equality between men and women in the exercise of rights. Therefore, is it possible to submit a claim only if some economic, social and cultural rights protected by the Convention are granted only to men and not to women in the same position. Where men are denied economic, social and cultural rights, it can be presumed that women have no recourse under CEDAW, except in the case of rights envisaged just for women (e.g., related to pregnancy and rural women).
It should be noted that because of the ‘integrated approach’ in relation to civil and political rights and economic, social and cultural rights, supervisory bodies such as the Human Rights Committee and the European Court have dealt with some components of the right to adequate standard of living when addressing other rights, such as the right to non-discrimination and the right to a fair trial.
At the UN level, the Human Rights Committee has applied an integrated approach when dealing with the right to an adequate standard of living under Article 26 (the right to non-discrimination) and Article 27 (the right to minorities) (see III§12).
In the regional systems, the main supervisory mechanism is the reporting system established in the European Social Charter. The Social Charter does not allow for individual complaints, but a Protocol to the Charter provides for a system of collective complaints. One such complaint was the first case on housing rights to be brought before the European Committee of Social Rights. In order to satisfy Article 16 ESC states parties must respect the differing housing needs of marginalised social groups and provide social housing that does not threaten social inclusion, the overall goal of the Charter. The provision of halting sites for people of Roma origin falls within the ambit of housing rights (European Roma Rights Centre v. Greece). Furthermore, the protection of the right to housing may be achieved through the ECHR, as the European Court has adopted an integrated approach when dealing with different components of this right. For example, in Oneryildiz v. Turkey, the Court recognised that governments have duties to protect persons occupying land without planning permission. Although the Court did not consider the applicant in possession of a formal legal title to the land where he was living, it found, nonetheless, that he was entitled to compensation for the destruction of his house and personal items. In the case of Moldovan v. Romania, police officers participated in the forced eviction of Roma people and the subsequent destruction of their homes. The state was held to be responsible for the applicants’ subsequent inadequate living conditions, and to have violated their Article 8 right to private and family life. The European Court has ruled on the right to housing in more than 100 cases.
In the Inter-American system, the Protocol of San Salvador lays down the right to food (Article 12) but does not include any provision on the right to adequate housing, clothing or water. Moreover, the Protocol limits the individual complaint procedure to the right to form and join trade unions (Article 8a) and the right to education (Article 13). However, in Yakye Axa v. Paraguay, the Inter-American Court interpreted the right to life protection of Article 4 ACHR to encompass the right to food and health standards set forth in the Protocol of San Salvador. The protection of economic, social and cultural rights also falls under the American Declaration of the Rights and Duties of Man and Article 26 ACHR. In several cases, the Inter-American Commission has recognised its competence to hear complaints of violations of economic, social and cultural rights provided for by the Declaration and that are denounced through individual claims (see, e.g., Amilcar Menéndez et al. v. Argentina (Case 11.670)). The Inter-American Court has examined economic, social and cultural rights in Torres Benvento et al. v. Peru, in which it implicitly admitted its competence to apply Article 26 ACHR in its contentious jurisdiction. This opens the possibility for future claims of violations of the right to an adequate standard of living.
In the African system, the African Commission has issued a landmark decision with regard to the right to housing and the right to food. In a case where it was alleged that the Nigerian government had contributed to gross violations of human rights through the actions of its military forces and unsound environmental management related to exploitation of the Niger Delta, the Commission found with regard to the content of the right to shelter that it obliges the state not to destroy the housing of its citizens or obstruct efforts by individuals or communities to rebuild lost homes. The duty to respect this right also requires that the state and its agents refrain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon the freedom of an individual to use available resources to satisfy individual, family, household or community housing needs. The duty to protect, the Commission stated, includes the prevention of violations of this right by any individual or non-state actor such as landlords, property developers and landowners. The right to food was held to bind states to protect and improve existing food sources and to ensure access to adequate food for all citizens. The minimum core of this right obliges the government to desist from destroying or contaminating food sources or from allowing private actors to contaminate food sources or to prevent people’s efforts to feed themselves (see The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96). In World Organisation against Torture et al. v. Zaire, the state, in its failure to provide potable water, was found to have violated its obligation to provide basic services necessary to protect the minimum standard of health under Article 16 AFCHR.
Although the protection of the right to an adequate standard of living through individual complaints is limited until the Optional Protocol to the IESCR enters into force, several resolutions on components of the right to an adequate standard of living have been adopted by UN bodies. Both the UNGA and the ECOSOC have adopted resolutions concerning the realisation of the right to adequate housing and the right to food. Moreover, the former UN Sub-Commission on the Promotion and Protection of Human Rights adopted numerous resolutions concerning issues relating to housing rights. It dealt with topics such as housing and property restitution in the context of the return of refugees and internally displaced persons, women and the right to land, property and adequate housing and the realisation of the human right to adequate housing and children and the right to adequate housing. The Sub-Commission also adopted a number of resolutions concerning the right to food.
In addition, the Human Rights Council assumed the mandates of four Special Procedures established by the UN Commission on Human Rights to address issues concerning the right to an adequate standard of living: the Special Rapporteur on the right to food; the Special Rapporteur on the right to adequate housing, the Independent Expert on the question of extreme poverty and human rights; and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. In addition, in March 2008, the Human Rights Council appointed an Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation.
The mandate of the Special Rapporteur on the right to food includes monitoring the situation of the right to food throughout the world and identifying general trends related to the right to food. The Rapporteur undertakes country visits and communicates with states and other concerned parties with regard to alleged cases of violations of the right to food and other issues related to his/her mandate, on the basis of, inter alia, individual complaints. The Special Rapporteur, furthermore, promotes the full realisation of the right to food through dialogue with relevant actors by participating in seminars, conferences and expert meetings (see Human Rights Council Resolution 6/2). The express linkages between the rights to water and food have been dealt with in the reports of the Special Rapporteur on the right to food.
The mandate of the Special Rapporteur on the right to adequate housing includes reporting on the status of the realisation of rights relevant to his/her mandate and carrying out country visits. The Rapporteur develops constructive dialogue with governments, civil society and other relevant actors with a view to identify solutions for the implementation of the right to adequate housing and receives individual complaints alleging violations of housing rights in particular countries (see Human Rights Council Resolution 6/27).
The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health monitors, amongst other things, the situation of the right to health throughout the world. The Rapporteur identifies general trends related to the right to health, undertakes country visits and communicates with states and other concerned parties with regard to alleged cases of violations of the right to health. The Special Rapporteur, furthermore, promotes the full realisation of the right to health through dialogue with relevant actors by participating in seminars, conferences and expert meetings (see Human Rights Council Resolution 6/29).
The Independent Expert on the question of extreme poverty and human rights is tasked with identifying approaches for removing all obstacles, including institutional ones, to the full enjoyment of human rights for people living in extreme poverty and to identify efficient measures to promote their rights. The Expert shall make recommendations on how persons living in extreme poverty can participate in the process towards the full enjoyment of their human rights and the sustainable improvement of their quality of life, study the impact of discrimination and pay particular attention to the situation of women, children and other vulnerable groups, including persons with disabilities living in extreme poverty. The Expert shall participate in the assessment of the implementation of the Second UN Decade for the Eradication of Poverty and submit recommendations on the realisation of the Millennium Development Goals, in particular the first goal. Finally, the Expert is to develop co-operation with UN bodies dealing with the same subject and participate in relevant international conferences on extreme poverty (see Human Rights Council Resolution 8/11).
The Independent Expert on the issue of human rights obligations related to access to safe drinking water and sanitation is tasked with developing a dialogue with governments, the relevant UN bodies, the private sector, local authorities, national human rights institutions, civil society organisations and academic institutions, to identify, promote and exchange views on best practices related to access to safe drinking water and sanitation, and, in that regard, to prepare a compendium of best practices. The Expert is to undertake a study in co-operation with the aforementioned actors, for further clarification on the content of human rights obligations, including non-discrimination obligations, in relation to access to safe drinking water and sanitation and shall make recommendations that could help the realisation of the Millennium Development Goals, in particular Goal 7. The Expert shall apply a gender perspective and work in close coordination with other special procedures and subsidiary organs of the Council, relevant UN bodies and the treaty bodies, and taking into account the views of other stakeholders, including relevant regional human rights mechanisms, national human rights institutions, civil society organisations and academic institutions (see Human Rights Council Resolution 7/22).
Finally, it is important to mention that, at the national level, several countries have Constitutions that refer to the right to an adequate standard of living. These constitutional provisions are key texts in the protection of this right at the national level and they have allowed for an increasing number of cases to be brought before the courts. An example is the South African Constitution and Bill of Rights, in which all economic and social rights have been declared justiciable. A domestic case regarding the protection of the right to an adequate standard of living is Government of the Republic of South Africa v. Grootboom, decided by the Supreme Court of South Africa.
PROGRESSIVE REALISATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS
The notion of ‘progressive’ realisation using ‘available resources’, contained in some economic, social and cultural rights treaties such as Article 2 ICESCR and Article 1 Protocol of San Salvador, has given rise to much uncertainty with regard to the nature and extent of states’ obligations. Some have interpreted this provision as meaning that economic, social and cultural rights are mere ‘aspiration’, without creating real obligation for states.
This text below refers mainly to the ICESCR, but the discussion is also relevant for other economic, social and cultural rights instruments, such as the Protocol of San Salvador. Certainly, economic, social and cultural rights involve progressive realisation to a greater extent than civil and political rights. Nevertheless, it would be difficult to dispute that the full realisation of all human rights is a progressive undertaking. The full realisation of all human rights requires states to progressively develop policies and targets. While compliance with the principle of ‘progressive realisation’ depends on the availability of resources in each state, this notion also imposes legally binding obligations on states. These obligations considerably limit the discretion of states with regard to the implementation of economic, social and cultural rights and require immediate implementation. Some of these obligations are:
1. The obligation to take steps to continuously improve the conditions.
According to its ordinary meaning, the term ‘progressive’ means ‘making continuous forward movement’. Thus, states parties are required to continuously take steps forward in order to achieve the full realisation of the rights recognised in the instruments. This obligation is immediately applicable and is not subject to limitation. Hence, it is not merely an obligation to take action at some time in the future. States, regardless of their level of development, must take steps immediately to achieve the full realisation of the rights enshrined in the Covenant.
2. The obligation to abstain from taking deliberately retrogressive measures except under specific circumstances.
The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights establish that ‘violations of economic, social and cultural rights can occur through the direct action of states [?]. Examples of such violation include: [?] (e) the adoption of any deliberately retrogressive measure that reduces the extent to which any such rights are guaranteed; (g) the reduction or diversion of specific public expenditure, when such restriction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone’ (Guideline No. 14).
In 1990, the Committee on Economic, Social and Cultural Rights noted: ‘[A]ny deliberately retrogressive measures [?] would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’ (General Comment 3). A ‘deliberate retrogressive measure’ means any measure that implies a step back in the level of protection accorded to the rights contained in the Covenant, which is the consequence of an intentional decision by the state. This may occur, for example, if a state:
a) Adopts any legislation or policy with a direct or collateral negative effect on the enjoyment of the rights by individuals or if it introduces legislation which discriminates in the enjoyment of rights;
b) abrogates any legislation or policy consistent with these rights, unless obviously outdated or replaced with equally or more consistent laws or compensatory measures;
c) Makes an unjustified reduction in public expenditures devoted to implementing economic, social and cultural rights, in the absence of adequate compensatory measures aimed to protect the injured individuals.
The Committee on Economic, Social and Cultural Rights has noted that if any deliberately retrogressive measures are taken, the state party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the state party’s maximum available resources. From the analysis of the Committee’s work, it is possible to conclude that a state party to the ICESCR seeking to justify a retrogressive measure or a failure to comply with the obligation to continuously improve conditions because of resource constraints must:
a) Demonstrate that every effort has been made to use all resources at its disposal. This implies that the state not only has the burden of proving the lack of resources, but it must also prove that it has unsuccessfully sought to obtain international assistance.
b) Demonstrate that every effort has been made to use the resources at its disposal to satisfy, as a matter of priority, certain minimum obligations with respect to the implementation of the Covenant. This obligation is over and above that of justifying lack of resources.
c) Demonstrate that particular attention has been paid to vulnerable groups within society and, in particular, that it has taken measures to prevent or ameliorate the adverse consequences that vulnerable groups may suffer.
d) Rescind any restrictive measures taken to reduce Covenant-related expenses because of real constraints on resources and repair adverse effects on the population, in particular among vulnerable groups, once the resource constraints disappear and the economy recovers.
e) Take adequate measures to ensure that the reduction in resources does not result in the violation of the state party’s obligations under the Covenant and in particular those of Article 4 ICESCR. To the extent that a retrogressive measure places a limitation on the rights, states must comply with the conditions set out in Article 4 ICESCR, which stipulates:
The states parties to the present Covenant recognise that, in the enjoyment of those rights provided by the state in conformity with the present Covenant, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.