TIME FOR A REAPPRAISAL

NEW ZEALAND BUSINESS ROUNDTABLE

september 1997

First published in 1997 by New Zealand Business Roundtable,
po Box 10–147, The Terrace, Wellington, New Zealand

isbn 1–877148–30–x

© 1997 edition: New Zealand Business Roundtable

© Text: Bernard Robertson

Design and production by Daphne Brasell Associates Ltd, Wellington

Printed by Astra DPS, Wellington

Bernard Robertson came to New Zealand in 1989 with a degree in law from Oxford and a Masters Degree in law from London. He is also qualified as a Barrister of the Inner Temple. Earlier he had a career in the Metropolitan Police which included attending the 12-month Special Course at the Police Staff College, Bramshill. In New Zealand he has taught at the Victoria University of Wellington Faculty of Law and at the Department of Business Law at Massey University. Constitutional law has been one of Mr Robertson’s specialities throughout. He has published numerous shorter articles and book reviews on public law matters and has recently published a paper on the Reserve Bank of New Zealand Act 1989 in the Oxford Journal of Legal Studies. Mr Robertson is now Editor of The New Zealand Law Journal and a freelance writer, researcher and teacher.

The purpose of this paper is to introduce business people, lawyers and public servants unfamiliar with the international protection of human rights to a potentially important matter which receives little public consideration and on which surprisingly little detailed analysis has been published.

The discussion about international protection of human rights tends to be confined to a small group of academics, lawyers and diplomats who have interested themselves in these matters. But anyone concerned with the conduct of government who omits consideration of the international element may be missing an important constraint on, and occasional stimulus to, activity by governments.

The current key issue in human rights talk is the extension of legal procedures to cover not just classical civil and political rights but also economic and social rights. This language arguably is merely a new dressing for old arguments about central planning and state-controlled redistribution. The subject matter should therefore be of vital interest to all who have welcomed the reduction of state economic interference in recent years in New Zealand and who wish reform to continue.

I should like to thank, first, Alan Gibbs for financing this study; Andrew Mikkelsen who researched and drafted the chapter on housing and an adequate standard of living; Geoffrey Walker, Richard Epstein and others who commented on drafts, and also the New Zealand Business Roundtable for its support and for making possible the publication of this paper in a far shorter time than could have been achievable through normal academic channels. It should not be assumed however, that the views expressed are those of anyone other than the author who is also responsible for any errors or omissions.

The argument is being vigorously propagated that a proper view of human rights requires the recognition as rights of numerous claims which, 50 years ago, would not have been recognised as such. The practical form that this argument often takes is to agitate for implementation, or ‘constitutionalisation’, of the rights contained in the International Covenant on Economic, Social and Cultural Rights (icescr).

The classical conception of rights was that their purpose was to maintain individual autonomy. It was clearly necessary to have some level of organised government to maintain the framework of law required to enable individuals to pursue their own ends without coercion by others. The powers necessary to achieve this, however, could also be used to threaten individual autonomy. The concept of individual rights which grew up in the common law aimed at ensuring that what government did it did justly. It did not, however, prescribe government activity; indeed in practice it restrained government from venturing into new activities.

The classic statement of common law values is to be found in the preamble to the Constitution of the United States of America which recognises that all persons have the right to Life, Liberty and the Pursuit of Happiness. The words ‘pursuit of’ were all important. The achievement of happiness was a matter for the individual. This is because happiness cannot be delivered by the state without first being defined; since happiness is clearly a subjective concept, the state’s definition will not necessarily be my conception of happiness. It was also recognised intuitively that the world is not perfect and that while many people will not achieve even their own conception of happiness, the results of governmental attempts to deliver happiness would be far worse.

One of the manifestations of this belief was the framing, after the Second World War, of human rights documents which contained rights outside the traditional bounds of the concept of human rights.

The ‘International Bill of Rights’ is a term used to cover three documents:

Both the Covenants were drawn up through a slow process which began soon after the inception of the United Nations and continued until 1966.

The Universal Declaration contained several non-traditional rights. It must be borne in mind that the United Nations at the time was a relatively small group of nations, a large number of which had governments of socialist inclination. Even the United States was still under the shadow of the most collectivist president it has ever had, and his widow was a leading force in the human rights activities of the United Nations. The clearest exception to this statement within the United Nations would have been Nationalist China which was preoccupied with its own problems and which was not known for its adherence to classical civil and political rights.

Later, the political complexion of Great Powers such as the United States, Britain and France changed. At the same time, however, the composition of the General Assembly underwent change in the opposite direction. Numerous new countries had come into being, most of which had socialist and dictatorial governments. The old socialist states, forming the Soviet Bloc, were ostensibly committed to the achievement of economic and social rights as a higher priority than civil and political rights. Most of the governments of the new states were simply hostile to any outside interference and to what they represented as the imposition of Western values on their cultures. The end result was the following set of decisions:

Finally, it is commonly said that the statements of economic and social rights contained in documents such as the icescr are well-meaning but hopelessly utopian; that the aims are laudable but that their implementation is impracticable. This characterisation does not survive careful scrutiny of the document. It will be found that many of the ‘rights’ contained in the icescr are so internally self-contradictory as to be impossible to implement even in principle. Meanwhile the aims do not, on closer scrutiny, appear as laudable as at first sight. The mindset is revealed by the preamble to the Universal Declaration of Human Rights (udhr) which declares as its end:

This proposal sets out a programme to which the will of all is supposed to be bent. It is hardly compatible with the classical conception of a free society in which people may choose their own ends provided only that they do not infringe coercively on others.

In fact it will be found that the current debate is seriously skewed. It will be seen from this critique that many of those who promote the cause of economic and social rights do so as a camouflage for arguing in favour of a particular sort of economic and social organisation. These adherents are assisted in such activity by some of the drafting of the icescr and by the slant of much of the comment by academics and by the Committee on Economic, Social and Cultural Rights. Such commentary is often laden with assumptions as to what kind of governmental action ‘economic and social rights’ require.

If these interpretations of the icescr were followed through, then, far from being hopelessly utopian, the implementation of the Covenant would undermine both individual liberty and the prosperity which offers the only real hope of raising living standards and eradicating deprivation. A redirection of thinking on this topic is required if the concept of economic and social rights is to make a valuable contribution to human progress.

It is standard today to offer a threefold classification of human rights, whilst denying that the categories are watertight or independent. These categories are:

Other names for these divisions include First, Second and Third Generation Rights and ‘negative’ and ‘positive’ rights. The clear semantic implication is that one can, and should, progress from the achievement of one category of rights to the achievement of the next. This implies that they are at least complementary if not actually indivisible.

The tendency of the debate has been to assume that the expressions ‘positive rights’ and ‘economic and social rights’ are synonymous. But this is not so. The categories are conceptually distinct. Some definitions will be attempted:

It will be seen at once that the last two categories are defined in circular terms. They are not, unlike the first two, exclusive categories, but divisions of thumb only. The idea that they are exclusive stems from the notion that economics is about money or activity that generates money. Since economics is actually a mode of thought and analysis rather than a compartment of activity it follows that there cannot be a watertight division between ‘political’ which refers to an area of activity, namely participation in collective decision making, and ‘economic’ which refers to a mode of analysis.

Furthermore, even if a rough distinction between civil and political rights on the one hand and economic rights on the other is accepted, it is not identical with the distinction between negative and positive rights. We have in fact a two dimensional model which generates four possible types of right:

The important distinctions between positive and negative rights (and the importance of distinguishing between them) may be expressed in various ways, for example:

The current status of these four categories in international human rights documents can briefly be described as follows:

Since negative economic rights are absent from human rights documents, assertions about the indivisibility of human rights are usually assertions that negative civil and political rights cannot be divided from positive economic rights. This indivisibility is something which is merely reiterated endlessly by supervisory bodies, by special conferences and the General Assembly and then quoted by commentators. Also cited as ‘evidence’ is the fact that several modern instruments, such as the Convention on the Rights of the Child, contain ‘rights’ of all three kinds. No argument is ever directed to the point. This concept of indivisibility is in fact open to serious challenges, none of which is answered in the literature.

At a more detailed level it will become clear from this paper as the rights enumerated in the icescr are examined, that many, as conventionally interpreted, can only be achieved at the expense of restricting corresponding individual liberties.

Some argument for the indivisibility of human rights can be found, mostly aimed at attacking the postulated distinctions between political and economic rights. Since many commentators have not understood the two dimensional analysis above, it has been found easy to debunk some of their arguments. Proponents of the indivisibility of human rights take this as a vindication of their position. These arguments will now be reviewed. Finally, a rather different argument for the indivisibility of human rights will be made.

One of the arguments used to differentiate civil and political rights from economic and social rights is that the former require state abstention and the latter state intervention. This is then attacked by the proponents of economic and social rights through demonstrating that governments have to take action in order to uphold classical civil rights such as the right not to be subjected to inhuman and degrading treatment in prison.

The insight contained in this supposed differentiation is that in order to uphold civil and political rights the government is not expected to initiate whole new programmes, or to involve itself in new areas of activity. What is required is that when the government performs the roles expected of it in a free society it does so in a way that accords with principles of equal treatment and justice.

The objection, however, that governmental action is required to uphold these rights is clearly correct, so some other distinction must be found, some way of distinguishing the one kind of governmental activity from the other. This is not difficult. Negative rights require that what the government does it must do justly. They have nothing to say about what the government is to do. Positive rights, however, specify activities in which the government should engage in order to pursue the rights. Since these specifications are result-oriented, they will be inimical to the kind of procedural restrictions on government known as classical civil and political rights.

What matters, however, is not the quantity of government expenditure but the type of government action required and the aims pursued. Further, there is a marked difference between the expenditure to avoid inhuman and degrading treatment on the one hand and expenditure to realise an economic right on the other. The state does not initially engage in building prisons in order to protect the human rights of prisoners. The state builds prisons, establishes a police force and so forth in order to create the public good of order and security and to protect rights to integrity of person and property. Unfortunately, the powers conceded to the state to protect personal autonomy have the potential to be abused so as to oppress. These powers must therefore be limited and controlled by, amongst other things, the expression of such rights. But the problem is created by the initial concession of power to the state by individuals. There is always another solution, as was suggested in one of the cases quoted by Hunt, namely that if the state cannot detain people in conditions of decency it will not be allowed to detain people at all (Hamilton v Love (1971) 328 F Supp 1182). Obviously no equivalent riposte can be made to a claim that the state cannot afford to implement a right to education or health care.

The distinction does not therefore depend upon the fact of government expenditure. Since all governmental activity costs money, a claim that civil and political rights can be implemented cost free is equivalent to a claim that there should be no government. Nor does the distinction depend upon the amount of money spent. There is no magic figure, whether in absolute terms or as a percentage of gdp, that crosses the line from the implementation of the one kind of right to the other.

Rather the distinction is one of the quality or type of government activity. Positive rights, if ‘delivered’ by government, require rationing and require the compulsory transfer of resources from one individual to another. Negative rights require only the provision of services equally available at all times to all.

‘Justiciability’ refers to the suitability of a matter for judicial determination. The characteristics of judicial decision making include that it proceeds from pre-existing rules, that the judge is provided with relatively little information and has a relatively narrow question to answer.

The word ‘justiciable’ can be used in two senses. One is normative, whether in the opinion of the speaker, a decision is suitable to be made within the constraints under which judges labour. The second is purely positive, that as a matter of law, judges have to make the decision in question. Thus if an Act of Parliament were passed instructing a court to determine the appropriate rate of inflation this would in positive terms, but not normative, be a justiciable issue.

It is traditionally said that economic and social rights are not suitable for judicial consideration because of the wide range of issues that have to be taken into account and the uncertainty surrounding effective means of achieving the ends in question. This argument usually implies that, on the other hand, legislative and executive authorities do have the information and understanding required to achieve policy goals. If one starts from the premise that nobody can know enough to achieve particular outcomes beyond his or her immediate circle of influence, then obviously courts cannot know enough either.

No convincing example has therefore been produced of a case in which judges can effectively make decisions allocating positive economic rights. All such decisions are decisions which allocate resources and which therefore have opportunity costs. They also invariably require transfers from individual to individual. Such decisions should be made either by voluntary transactions or by an accountable political process.

One reason why economic rights are said to be non-justiciable is that their terms are insufficiently precise to guide judges as to the content of the rule. Some caricatures can be produced in support of this argument. Article 22 of the Universal Declaration of Human Rights states

The natural response is to assert that other, more traditionally justiciable, matters are also vaguely stated or defined. Hunt, for example, argues that some civil and political rights are also vaguely stated, such as the right to be free from inhuman or degrading conduct. But there is a crucial difference. While it may be difficult and even undesirable to be too specific about exactly what constitutes inhuman and degrading conduct we can agree on a reasonably specific statement such as ‘this means that the state shall not treat anyone in a way that is regarded by right thinking people as inhuman or degrading’. But in the case of the right to housing it is not possible to make any such statement. It could mean ‘the state must not interfere with the tenure of householders’ or ‘the state must provide everyone with a house of a certain standard’ or ‘the state must ensure that everyone can afford access to adequate housing’.

Likewise with the right to education. Not only is there a difficulty defining ‘education’, the equivalent problem to defining ‘inhuman and degrading treatment’, but there is a problem deciding how far the right is to extend since, clearly, the entire population cannot spend their entire lives in full-time education. The difficulty of definition is not therefore just one of determining appropriate standards. It is that in the case of the right to be free from torture there is a clear principle which guides action: ‘the state shall not torture anyone at any time’. In respect of the rights to housing and education on the other hand there is no principle which tells us what action is required of the government, merely a repetition of the terms of the right.

A classic example of this view is found in President Roosevelt’s ‘Four Freedoms’ speech:

As it stands, this statement contains important truths. True individual freedom does indeed require economic security and independence. It may not be necessary that every individual is financially independent, but there needs to be a sufficient proportion of financially independent people in a society to create a culture of independent thought and speech. The final sentence is undoubtedly also correct.

But this statement is at odds with what Roosevelt proposed, with what the proponents of economic rights argue and with what the welfare state has achieved. In particular the final sentence should give the proponents of economic rights pause for thought. The reason the hungry and unemployed are the stuff of dictatorship is that they believe that economic prosperity can be obtained at the expense of (others’) civil and political rights. It is also clear that the same belief is held by some of the proponents of economic and social rights and indeed was held by Roosevelt himself. It is noteworthy that Roosevelt was only able to get the New Deal implemented by threatening to pack the Supreme Court.

It is therefore quite incorrect to argue that the deliberate pursuit by governments of economic and social rights will lead to a more economically secure population, better able to exercise their civil and political rights. To Roosevelt’s statement above needs to be added the warning "If you control the way a man earns his living, you control everything about him".

Some commentators have denied that economic and social rights are ‘legal rights’. This would appear to be a not very well articulated statement of a normative view of justiciability. The straightforward answer is that the rights we are concerned with are contained in a treaty which governments have signed and that by signing a treaty governments accept obligations binding in international law.

The interesting point about this argument is that it treats ‘law’ in a purely positivist sense. Something is law because it is contained in a treaty. Therefore whatever is put into a treaty is law and cannot, on that ground, be regarded as categorically different from anything else in a treaty, such as civil and political rights. But the argument for human rights cannot be sustained in a purely positivist manner. If the concept of ‘rights’ is to have any meaning other than ‘claims which happen to be legally enforceable in a particular place at a particular time’ it must have some natural content and not be determined simply by the content of documents. While this argument may demonstrate the weakness of the attack that economic and social rights are not ‘legal’, it is not a strong argument for the indivisibility of human rights.

It is argued that many rights traditionally thought of as civil and political rights in fact have an economic and social aspect. The classical right to property is an obvious example. But this is not evidence that the distinction between the two kinds of right is false. It would only be so if ‘economics’ was about money and material wealth rather than about preferences in general. Since any ‘right’ can be exercised so as to maximise one’s values, any right has economic consequences. The problem here is one of semantic confusion. Certain positive rights have been labelled ‘economic’, from which it is then argued that any right to which economic consequences attach belongs to that class.

It is certainly true that the division between the contents of the iccpr and the icescr does not correspond to any analytical distinction between any categories of rights. It is also true that the bare form of words that a person ‘has a right to X, Y or Z’ can be given either a negative or a positive meaning. But this does not indicate that there is no distinction, merely that intellectual rigour and conceptual clarity were not high on the list of priorities of the diplomats who drafted these treaties. This will often be because it would not have occurred to them that their words were to be interpreted in a ‘positive’ sense.

The supervisory bodies created by the human rights instruments have also demonstrated conceptual confusion. The Human Rights Committee, for example, in its General Comment No 6 referred to widespread malnutrition and high infant mortality as breaches of the right to life. General Comments are adopted without any argument being heard. Such argument could have been directed to the language of Article 6(1) iccpr:

The so-called integrated approach proves at least that the supervisory bodies had taken deliberate decisions to launch into new and unexpected areas and at worst illustrates rather than refutes the argument that economic and social rights necessarily restrict civil and political rights. It does not prove that there is no conceptual distinction between the two categories.

The argument that civil and political rights do have economic and social consequences does lead us, however, to an entirely different kind of argument about the indivisibility of human rights.

Adam Smith’s argument about the functioning of the free market was that desirable ends such as an increase in the standard of living would be achieved, not by their deliberate pursuit by governments, but as a consequence of individuals being allowed to pursue their own much more limited ends.

Put into the terms of the present debate this is to say that the aims expressed as positive economic and social rights are best pursued by allowing individuals to exercise their negative rights for their own purposes. This is hard to accept for those who cannot understand the concept of a spontaneous order and who believe that problems must be tackled by deliberate governmental action.

It is thus not the case that there is a necessary trade-off, as socialist countries used to argue, between civil and political rights on the one hand and the satisfaction of the demands commonly known as economic and social rights on the other. The history of the last 50 years, in fact of the last 200 years, demonstrates that the fastest economic progress has been in those societies which have allowed basic civil and political rights and have not concerned themselves with the deliberate pursuit of economic and social rights.

There is a clear and important distinction to be drawn between negative rights and positive rights. It will be seen from the detailed examination of rights that follows that this terminology should not lead to the assumption that having satisfied negative rights we should move on to satisfy positive rights. Nor should we fall for any semantic trickery that implies that ‘positive’ rights are more desirable than merely ‘negative’ rights. The relationship between negative and positive rights is a mathematical one. The imposition of a positive right cancels out negative rights. The enforcement of negative rights prevents the pursuit of positive rights, but turns out to have positive consequences.

This is a jurisprudential question on which much has been written. Only a few observations are in place here.

During the nineteenth century the philosopher of law, John Austin, propounded what is often known as the ‘gunman’ theory of law. According to this theory, law is that which can be enforced. During the twentieth century people have become accustomed to thinking of law as made by some authority such as parliament, and enforced by another such as the courts. From this position, it is hard to see international law as ‘law’ since enforcement mechanisms, and especially effective enforcement mechanisms, are more or less lacking. Even where they are present, as in the ability of the un Security Council to impose sanctions, each individual enforcement action requires political approval.

To an evolutionary theorist, however, Austin’s proposition is exactly the wrong way round. In the evolutionary view, the law evolves as a result of individuals’ interactions with one another. Whatever short-term gains might be made by unilateral and coercive action, most people recognise that in the long run it is in their interests to have a stable society governed by rules. The rules are then enforced because they are the law.

From this standpoint, there is no difficulty in recognising international law as law. It merely lacks a formal enforcement mechanism. That does not mean that countries will not regard themselves as obligated to obey a rule even if it is contrary to their short-term interests. The law on diplomatic immunity is an example easily grasped. Nonetheless, the lack of an enforcement mechanism does have serious effects. Chief of these is that in the last analysis international law cannot be enforced when a Great Power feels its vital interests to be threatened, which is why un enforcement action requires political approval.

For the purposes of this paper, at any rate, it will be assumed that there is such a thing as international law which is capable of creating legally binding obligations on national governments.

In some other countries treaties become part of the law of the land on ratification. It should be noted, however, that in New Zealand as in most other common law countries ratification of a treaty is a purely executive act. In countries where treaties become law on ratification, the legislature often has some role in the ratification process. In the United States, for example, ratification of treaties requires the ‘advice and consent’ of the us Senate.

The statement that international law cannot be enforced in court is subject to at least two glosses:

Historically, treaties were in the nature of contracts between two or more states. They dealt with matters that could only be dealt with between governments and in the event of breach by a state party one of the others will usually have had a direct interest in complaining about the breach and even taking enforcement action, such as declaring war.

International human rights treaties are not in the nature of a contract between states which have a direct interest in their observance. Nor do they deal with matters that are necessarily international. In the typical human rights document a large number of states simply adhere to the document and undertake to comply with the terms of it. This has led some international lawyers to argue that these documents are not treaties at all but unilateral declarations by states.

During the period in which these documents have been drawn up, an assumption has steadily been taking hold that disputes between states should not be dealt with bilaterally but in designated fora. This will often mean the participation of third party states or decision by a body of people who at least in theory act as individuals rather than as representatives of states. Human rights documents have contributed to this trend.

The first major such document was the Universal Declaration of Human Rights, which is simply a declaration of rights, with no procedural mechanisms at all. The next most important step was the European Convention on Human Rights and Fundamental Freedoms.

The European Convention created a system for enforcement involving two new bodies and a new role for an already existing one. Initially states would take their disputes to the European Commission on Human Rights which would make available its good offices to enable the parties to reach a friendly settlement. If this was not possible, the Commission would write a report on the matter and forward it to the Committee of Ministers. This Committee is an organ of the Council of Europe and consists, as its name implies, of the foreign ministers of each member state. This Committee had the power to determine, by a two thirds majority, that a breach of the Convention had occurred and that that determination would be binding (Article 32(4) echr).

Alternatively, and this has become a standard procedure, either the Commission or the state involved could refer the matter to the European Court of Human Rights. The decision of the Court is binding on the states parties (Article 53 echr).

In the European Convention, as in nearly all such documents, there is a requirement that the complainant has exhausted all domestic remedies in the state complained of. This is one of many features which serve to emphasise that the primary responsibility for upholding human rights lies not with the international organs but with the states parties.

The final comment above is especially true of the International Covenants. The ‘International Bill of Rights’ was divided as discussed in chapter 2. There are two distinctions between the Covenants:

The differences between the Covenants are, however, reduced by the following considerations:

It is to be noted that not even under the iccpr is any mechanism created for laying down binding rulings on the interpretation of provisions of the Covenant, nor that a state is in breach. There is certainly no such mechanism under the icescr. The only mechanism for supervision of the implementation of the Covenant is a requirement for states parties to report to the Secretary-General of the United Nations on measures taken and progress made in implementing the Covenant. The Secretary-General forwards the reports to ecosoc and to specialised agencies of the United Nations. ecosoc can transmit the reports with its comments to the un Human Rights Commission and to the specialised agencies. There is no provision in the Covenant for any body to issue binding instructions to a state party.

ecosoc established sessional working groups early in its existence to ‘assist’ with the consideration of the reports, but this did not prove a satisfactory arrangement. In 1985 ecosoc adopted a resolution setting up the Committee on Economic, Social and Cultural Rights, which is evidently designed to resemble the Human Rights Committee established by the iccpr.

The Committee receives reports from states parties at five-yearly intervals and, after consideration of each report, engages in ‘constructive dialogue’ with representatives of the state. Where states consistently fail to submit reports the Committee may set up a mechanism for making its own assessment of the situation in that country. New Zealand has now submitted two periodic reports, which are referred to where appropriate in the consideration of specific rights below.

The Committee also meets for ‘general discussions’ of topics which may result in ‘general comments’ giving the Committee’s views on how various rights might be implemented.

Since the Committee meets for only three weeks a year, plus an additional week for working groups, reports – which are often submitted late in any case – may not be considered for up to two years after submission.

When the Committee considers a report it may take into account information obtained from specialised agencies of the United Nations and also from non-governmental organisations (ngos). An interesting and unusual feature is that the Committee is not restricted to hearing from ngos with consultative status to ecosoc. In theory ngos may only submit written statements to the Committee but there are in practice opportunities for ngos to make oral presentations especially during the pre-sessional working group period and during ‘general discussions’. There is nothing to stop ngos communicating with Committee members individually and in fact the formal invitation to submit written statements was intended partly to deal with the objection that states were not privy to ‘the case they had to meet’.

Although to lawyers used to sanctions for breaches of rules the reporting mechanism appears toothless, within the diplomatic world, where so much store is set on playing the same game as everyone else, it can be an effective process. Some other comments are also relevant:

Article 2 of the icescr provides:

Of particular significance is the phrase "to the maximum of its available resources". Doubtless originally designed as a fudging or let out clause, this clause is today deployed by writers in a prescriptive fashion. Thus interpreted, the phrase seems to assume that the government, which is the only body that can be held responsible under the icescr, has resources of its own or that it can raise resources in ways that do not themselves create human rights problems.

A number of observations may be made about this phrase:

The only binding obligation under the icescr is to fulfil the terms of the Covenant. The responsibility for determining the meaning of those terms is on the states parties and not on any international body.

Given the inherent vagueness of many of the provisions, and the lack of any mechanism for explicating them, it can always be argued that a state is in breach of some provision and the allegation will be extremely difficult to deny.

However, the fact is that New Zealand, like many other countries, has signed both the iccpr and the icescr. It will be seen that the provisions of the icescr are frequently interpreted in such a way that they necessarily undermine rights contained in the iccpr – indeed one example has already been given. It must be assumed, however, that New Zealand did not intend to sign two documents of directly contradictory effect. Where possible, therefore, the provisions of the two documents should be interpreted so as to render them consistent with each other. Since the iccpr is the more specific and has a stronger supervisory system, this means that the icescr should, where possible, be interpreted in a way that does not undermine the rights in the iccpr.

Article 1(1) of the icescr provides:

The right to self-determination is placed in a somewhat separate category and appears as Part I of both the iccpr and the icescr. Despite its appearance in the iccpr it is generally regarded as a non-justiciable right.

A great deal has been written on self-determination and no attempt to contribute to that debate will be made here. Suffice to say that the major philosophical problem surrounds the definition of ‘peoples’. One of the many practical problems is raised by a ‘people’ that does not exclusively occupy a defined geographical area, such as Maori. What self-determination means under such circumstances is not clear.

The expression "freely pursue their economic, social and cultural development" is also open to varying interpretation. It could mean that the people as a group must be free to pursue its development free from outside interference or it could mean that the individual members of the group are free to pursue their own economic, social and cultural development. The latter interpretation would be more consonant with individual freedom and rights such as the right to choose one’s occupation. The former interpretation, however, seems more natural in the context of self-determination and the free determination of political status in the previous clause.

In that case, the right to self-determination would legitimate a situation in which the collectivity, or some group within it, has the opportunity to decide what ‘development’ means and how to pursue it. This is clearly inimical to individual rights to the pursuit of economic, social and cultural development, since the individual’s conception of these may not coincide with the majority’s or the decision makers’.

A notable aspect of the right to self-determination is Article 1(2) which provides:

What does "their natural wealth and resources" mean? The starting point in a society characterised by individual freedom and respect for negative rights would be that natural wealth and resources belonged to the property owner. It is unclear therefore why any policy that underlies this provision cannot be achieved by recognising and respecting the right to property. Shorn of any connection with the right to property, this provision appears to legitimate collective control of resources. It can then be used as an excuse for infringing the right to property, for example by expropriating foreign landowners. Likewise it can be made an excuse for discriminatory legal provisions such as requiring foreigners to undergo some special procedure before being entitled to purchase land.

It may also be noted that the provision assumes that wealth lies in natural resources, from which it follows that these resources belong to the ‘people’ who happen to occupy the ground in which those resources are found. In fact wealth lies in the use made of resources. Without the internal combustion engine, for example, oil would not be recognised as a significant natural resource. This implies that the ownership question is more problematic than commonly assumed.

The assumption that wealth lies in the land appears to be continued by the final sentence. It is not clear how a ‘people’ may be deprived of its means of sustenance if individuals’ primary assets are their labour and ingenuity. Immigrants to the United States in the nineteenth century, for example, were frequently better off in a short space of time than if they had remained on their ancestral land. However, if a ‘people’ is both deprived of its natural resources and prevented by immigration controls from moving to a place where its members can sell their labour, then it is caught in a trap.

The final sentence of Article 1(2), if a negative right, would mean that governments may not deprive a ‘people’ of its means of sustenance. This is a position that can be supported by reference to principle and to the practicalities of enforcement. If however, a ‘positive’ approach to this sentence is taken, the meaning is potentially much wider. A ‘people’ might be deprived of its means of sustenance by natural process or disaster, or by its members’ own unwise decisions (for example, the Midwest ‘dust bowl’). Interpretation of this Article as a ‘positive right’ would then mean that governments had to exert themselves to guarantee the means of sustenance. This effectively means that the ‘people’ concerned have the right to be subsidised by those who have made wiser decisions or who have paid more to live in areas less susceptible to disaster. It is therefore submitted that this sentence should be interpreted only in its classical or negative sense that the government may not decide to deprive a ‘people’ of its means of sustenance.

Article 11(1) of the icescr states:

This particular right is in many ways the core right contained in the icescr. Most of the other rights are arguably merely examples of the right to an adequate standard of living.

From a materialistic point of view, guaranteeing to deliver continuous improvement in living conditions is equivalent to guaranteeing to deliver happiness. The framers of the us Constitution referred only to a right to the ‘pursuit of happiness’ and not to the delivery of happiness. The distinction between these two goals marks the distinction between free and totalitarian societies. To be consonant with a free society the icescr should merely guarantee the right to pursue improvement in living conditions. The wording tends to indicate that its drafters were willing to countenance pursuing goals by directing the efforts of individuals.

This right appears to have two limbs: everyone has a right to:

The first of these two limbs is stated to include "adequate food, clothing and housing". This limb will be dealt with below.

As a negative right, the right to continuous improvement in living conditions presumably means that the government should not take any decision deliberately aimed at reducing the living conditions of any group. This would entail not levying discriminatory taxation on any group even if the aim were redistributional, since the rich are as entitled to this right as anyone else.

If this right were a positive right it would verge on absurdity. It would raise the spectacle of wealthy entrepreneurs claiming that the government must ensure the continuous improvement of their living conditions, irrespective of the success of their own business activities. It also apparently means that the government must insure every person against a fall, or even stagnation, in their living standards, thereby removing one of the major incentives to self-improvement.

However, we are told in the literature that such a view:

It might be retorted that this mistaken view actually results from taking seriously the claim that positive economic and social rights are ‘rights’ in the same sense as civil and political rights. It is the responsibility of governments to act in such a way as to ensure that the civil and political rights of individuals are respected. Such rights are in effect instructions to government as to how it is to conduct itself. If, therefore, positive economic and social rights were ‘rights’ of the same type, the statement of a right would be a statement of the responsibility of the state to ensure that a given result is achieved. It is not the case that in the field of civil and political rights it is ever the responsibility of the individual to ensure that he or she is accorded the rights. This seems an important ground of distinction between the two categories.

The point grasped by the writer above is that, as with all positive rights, action to pursue this right must be rationed. However, since the right and this gloss contain two words of indeterminate nature, ‘adequate’ and ‘possible’, it seems that it will be difficult to determine when this ‘responsibility’ has passed from the individual to the state.

These difficulties can all be avoided by simply interpreting the right to continuous improvement of living conditions as a negative right.

There is in fact only one way in which the living conditions of everyone can continuously be improved and that is through economic growth. (This is not to say that the living conditions of everyone will be continuously improved if there is economic growth, but only that it is the only way in which everyone’s living conditions can be improved simultaneously.) This ‘right’ therefore appears tantamount to asserting a right to have economic growth occur. But economic growth does not occur directly because of the activities of governments, and especially not because of the activities of the United Nations or international conferences. It occurs because of the actions of individuals.

Furthermore, it is inevitable in a free market that relative living standards will change. These relative changes reflect changes in technology and preferences and the wisdom or unwisdom of the way people choose to invest their resources, including their labour. It follows that the relative living standards of some people and occupations will fall. If relative living standards are to change, therefore, while everyone’s absolute standard rises, economic growth needs to be fairly rapid and sustained. It may be noted that the Western world has in fact achieved this feat relatively successfully in the last 50 years, without any help from the Committee or from the United Nations, and while its mechanism for doing so has been continuously denigrated by the supporters of ‘economic rights’. So not only is the concept of a positive universal individual right to continuous improvement of living conditions somewhat ridiculous, it is not even desirable. The threat of decline of living conditions is a major spur to efficiency and effort.

The Committee has not dealt in any depth with this right, but it has routinely emphasised the positive nature of the obligation on states to realise the right. The wording of the Articles themselves suggests a positive obligation: Article 11.1 states that "[t]he States Parties will take appropriate steps to ensure the realization of this right", and Article 2.1 states that "[e]ach State Party … undertakes to take steps … to the maximum of its available resources". It would therefore be difficult for a government to submit to the Committee that the right is purely negative in character. But it is impossible for the government to take positive steps towards the achievement of this right for some without at least risking violating it for others.

In a constructive vein, one could say that if the right is a positive right it could attach to broad policy goals rather than to individual circumstances, so that ordinary financial ups and downs would not have to be underwritten by the government. This is born out by Question 1(a) in the Committee’s Guidelines on Country Reports which asks "Has there been a continuous improvement in living conditions for the entire population, or for what groups?". The Committee has in fact done little to help define the obligations under this right, limiting itself to requesting macro-economic indicators such as the per capita gnp of the poorest 40 percent of the population. However, this is inconsistent with the supposed nature of the right as a human right which attaches to each and every individual, purely on account of their being human. If the right is truly one which attaches to one’s humanity, it must be realised for each human being, not simply the ones whom the policy has provided for.

This must further mean that if the right is positive, the state must control the economy to such an extent as to insure its population against any fall in living conditions. However, the lesson of experience is that almost the only governments which have managed to achieve an overall fall in the living conditions of their people since World War ii have been those which have ostensibly committed themselves to the course suggested by this interpretation. Such a level of control would also be incompatible with civil and political rights, including concepts mentioned in the context of the right to work, such as the right to choose one’s occupation.

A positive right to continuous improvement of living conditions therefore emerges as an extreme example, even a parody, of the whole concept of positive rights. It has three characteristics which are shared to some degree by all positive ‘rights’, namely:

If, on the other hand, the right to continuous improvement in living conditions is viewed as a negative right then it emerges as a vindication of the individual’s right to pursue happiness in his or her own way without direction or obstruction from government.

The analysis that follows takes the views of the Committee and the Special Rapporteur as examples of the interventionist approach to the right. Turner’s thesis will provide a basis to discuss the enabling approach, which emphasises individual autonomy and the importance of markets to deliver housing.

How to define ‘adequate housing’ is a major issue. It is also, for reasons canvassed above, an intractable one.

In the Committee’s General Comment No 4, the Committee endorses the definition put forward by the Global Strategy for Shelter to the Year 2000:

The Committee itself defines the right as consisting of seven factors which must be fulfilled to an adequate standard. These are:

This sets an extraordinarily high threshold on adequacy. For instance, an adequate ‘location’ requires that adequate housing is in a location which allows access to employment options, health care services, schools, child care centres and other social facilities. It follows that if these are not accessible from your house, your housing is inadequate. Further, this applies to urban and rural areas, "where the temporal and financial costs of getting to and from the place of work can place excessive demands upon the budgets of poor households".

Under the heading "accessibility", "disadvantaged groups" must be accorded full and sustainable access to adequate housing resources and must be accorded some degree of priority. Disadvantaged groups include the elderly, children, the physically disabled, the terminally ill, hiv-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters and people living in disaster-prone areas.

Similarly, the Conference on Legal Aspects of the Urban Shelter Problem in New Delhi considered that adequate housing meant housing that is secure, accessible and affordable, but also housing that is non-profit, non-speculative and community-controlled. Here we have it posited as a human right not only that one should be provided with something but that it should be financed and controlled in a certain way. The requirement of ‘community control’ would seem to sit uneasily with the concept of a human right, since human rights in their classical exposition, negative civil and political rights, aim to sustain individual autonomy and not to force people to take part in group activities.

Scott Leckie has outlined six elements of the right, all of which must be met to an adequate standard if the right is to be realised. These are: physical structure, site, infrastructure and facilities supplied, cost, location, and legal security of tenure. This is a similar check-list to the Committee’s; however, unlike the Committee, Leckie does not spell out a specific definition of ‘adequacy’ for each category.

Leckie, the Committee and other groups are unclear about what they mean by legal security of tenure. This can be viewed in a number of ways:

Under the heading ‘affordability’ the Committee proposes:

The problems caused by state intervention in the housing market, in particular that rent controls will limit the amount of housing made available for rent and that even subsidies may cause price inflation at the lower end of the market, are not considered. Further, the focus on housing as a ‘need’ has resulted in an assumption that demand for housing is price-inelastic. This is clearly not so. At least some housing decisions are discretionary, for example the decision of a young person whether and when to leave the parental home. Reducing the cost of housing is bound to increase demand and the entirely static analysis undertaken by the Committee and the Rapporteur is inadequate.

These rights-based approaches can be contrasted with the views of John Turner on the meaning of "adequate". Although Turner does not explicitly discuss a right to housing, his views about the meaning of adequacy, dignity and the role of the State are instructive.

There is a potential ambiguity in the first proposition, which could be compatible with ideas of ‘community control’ but it is clear from the remainder of Turner’s writing that he is referring to individual householder control.

Turner’s central and most widely accepted proposition is that the value of housing is not in what it is, but in what it does in people’s lives. As he says:

Thus, it is a mistake to measure ‘adequacy’ by material standards. The important measure is in the relationship the house facilitates between the actors, their activities and their achievements. This is in effect a recognition of a basic principle of economics, namely that preferences are personal and subjective.

For most households, it is not possible to realise every housing wish. It is notorious that it is usually impossible to buy the house you want, in the place you want, at the price you want. When compromises have to be made, it is desirable that householders themselves prioritise their needs and wishes rather than that the government do it for them through public housing schemes. In Turner’s experience, the matters which seem important to governments are rarely important to the tenants of low-cost housing. While centrally-planned housing agencies routinely equate adequacy with high material standards, tenants often are willing to forego high material standards in return for lower rents.

In the context of housing he then presents what is, in fact, a critique of the whole concept of economic and social rights, deliverable by governments and assessable by committees:

This is to say that the Committee’s definition in General Comment No 4 is to ask for the moon. In the richest of countries people are routinely faced with trade-offs between house price (or size), commuting time, access to schools and so forth. Trade-offs have to be made and individuals and their families should be left to make them.

Turner is adamant that the smaller scale the provider of the housing, the better it is placed to deliver what is appropriate, and that centrally-administered systems cannot provide the diversity necessary to house disparate groups adequately:

If the right to adequate housing is viewed as a negative right the consequence would be that the government would have to create structures which facilitated the search for housing by individuals, or at least avoided obstructing it.

A high priority would be legal protection of ownership and a registration system which facilitated the transfer of land. New Zealand scores well on these requirements, save so far as the land held under the Maori Land Act 1993 is concerned.

Devereux’s argument that economic rights in general should be measured against a yardstick of dignity is countered by Turner’s point that dignity is a subjective measure. It cannot be said that every person who lives in an inadequate house feels undignified as a result. Indeed, it may be a deliberate choice to enable resources to be invested in some future benefit. The real issue is poverty and it is the poor, not the bureaucrats, who are faced with the opportunity costs of investing in quality housing.

There then seems to be an assumption that since bad housing detracts from dignity, the state should set about providing housing. The unspoken assumption here is that state housing will provide dignity. But it is clear that, at least in developed countries, the people living in the least dignified circumstances are often those in state-provided housing. Often, they cannot choose where to live, cannot choose to move without official backing, and are surrounded by the squalor, vandalism and serious crime characteristic of publicly provided housing projects. These factors hardly contribute to dignity.

The continued advocacy of state intervention in housing to ensure human dignity therefore seems somewhat of a triumph of hope over experience.

The question of how these particular rights should be implemented has been the subject of study.

Although the Special Rapporteur has advocated decentralised housing systems, he has also adopted a hostile stance towards the marketplace. In his Report to the United Nations, he is concerned that the commercialisation of land and housing leads to inequality and a loss of human rights:

It is remarkable that the Special Rapporteur even speaks slightingly of ‘growing economies’ as if there was any other way in which the rights he is concerned with can be provided. The idea that "the rights of the world’s least advantaged citizens … are increasingly denied or ignored" is just at odds with the facts. There has been substantial economic growth in the world in the last half-century. The fact that certain countries have failed to participate in that growth is due almost entirely to their own governmental policies or instability. Comparison may be made, for example, between Ghana and South Korea which in 1960 had similar standards of living. Ghana since then has been in receipt of large-scale aid and until recent years followed policies of governmental intervention aimed at achieving social goals. South Korea, meanwhile, has been largely following the policies decried by the Special Rapporteur.

The General Comment, however, makes it clear that the state should play an active role in realising the right. It says that the essence of the obligation is to demonstrate that the measures being taken are sufficient to realise the right for every individual in the shortest possible time in accordance with the injunction to apply the maximum of available resources. Not only does this assume that the problem is one of redistribution rather than growth but it drives the state towards an agenda of centralised planning.

The Committee’s prescription that adequate housing must afford access to, for example, child care centres cannot be achieved in a free market but only by heavy regulation. To argue that the right entails matters such as these is inconsistent with the Committee’s view that policies may reflect whatever mix of public and private sector measures is considered appropriate and that the Committee is neutral between political and economic systems. It is also inconsistent with an enabling approach, which the Committee endorses in other sections of the Comment.

On 3–14 June 1996, the Second United Nations Conference on Human Settlements (Habitat ii) was held in Istanbul. The Conference brought together 170 countries plus housing interest groups and advisers. The agreement that was reached was, like most un texts, the result of much negotiation and compromise.

The agreement shows a marked shift towards accepting markets as providers of housing, encouraging enabling strategies as means towards realising the right, and advocating decentralised housing systems. This approach stands in stark contrast to the approach of the Committee and the Special Rapporteur, and suggests that their stances are out of step with those who must bear responsibility for realising the right to adequate housing.

The Committee in General Comment No 4 said that the requirement to achieve progressively the realisation of the right carries with it the obligation not to implement policies that have the effect of driving down living conditions. This is a particular problem for poorer countries which have got used to living beyond their means and have to restructure. In richer countries such policies can also be identified, however. In New Zealand the policies identified by McShane on the part of Auckland Regional Council and some city councils in the Auckland area clearly have the effect of driving down living conditions. If it were the case, for example, that many people preferred high density inner city housing to houses on sections in the outer areas, there would be no need for local authorities to have policies giving preference to the former.

As things stand, it seems that in practical terms either:

Either approach is inconsistent with the assertion of this right as a human right to the benefit of which each individual is entitled without discrimination as to status
(Article 2 icescr).

Article 6 of the icescr provides:

Interpreted simply as a negative, or civil and political right, the right to work would include the right not to be obstructed by the government from doing the work of one’s choice. This would entail:

It would then be necessary to identify governmental activity which discourages work from being made available and which interferes in working relationships. Examples in New Zealand might include:

A question appears in the Guidelines on Country Reports on minimum wage rates, but it is far from clear that the Committee regards minimum wages as an impediment to the right to work. No questions on the other two matters appear in the Guidelines.

As a positive right, however, the content of the right to work appears unknown. It is frequently reiterated that it does not mean that everyone has a right to be given work of a particular kind whenever they wish. Alston tells us that

Drzewicki says that:

But no one can tell us what it does mean. If the positive concept of the right to work consists of more than the negative elements above but does not include the right to be provided with work, it is hard to see what it does consist of. No guidance is forthcoming in the literature or in the Committee’s publications. In fact what indications one can find are entirely consistent with the view that Alston and Drzewicki deny.

For example, Question 2(b) under Article 6 in the Committee’s Guidelines on Country Reports requests: "Please describe the principal policies pursued and measures taken with a view to ensuring that there is work for all who are available for and seeking work". There seems here to be a clear implication that it is the job of the government to ensure that there is a job for all and sundry. Furthermore, Alston’s denial seems inconsistent with his own approving reference in the same article to Franklin D Roosevelt’s proclamation of:

Before those claims can be discussed in detail it is necessary to consider the meaning of the central word ‘work’.

The definition of ‘work’ nowhere seems to be discussed.

First, it should be observed that ‘work’ is a transaction and not a good in itself. One side sacrifices leisure or other opportunities and the other money. The transaction is only worthwhile if the one receives enough money to make the sacrifice of leisure or other opportunities worthwhile and the other receives outputs of greater value than the cost of employment, including both wage and non-wage costs. If two parties voluntarily enter into a contract for labour it can be assumed that these conditions are met.

Roosevelt referred to ‘useful’ work. The icescr refers to ‘productive’ employment. The obvious question is who is to decide whether work is useful or productive? The answer just given is that it can be assumed that voluntary transactions are ‘productive’ but the same assumption cannot be made about jobs created by the government. If any form of compulsion is exercised, such as the use of taxes to purchase and distribute goods and services, then we have one set of people making a judgment about what other people should regard as useful.

That being the case it is impossible for a government to achieve "full and productive employment". Productive work will be demanded by the market. If work is provided by the government, apart from the work involved in the production of public goods, it will be impossible to say whether it is genuinely productive.

Likewise, the concept of ‘work’ as producing goods and services that others freely purchase is incompatible with governments taking measures to ensure that there is work for all who are available for and seeking work. Indeed, such language treats ‘work’ as a good rather than as a transaction. It is difficult to discern how Question 2(b) can be approached unless ‘work’ is interpreted simply as being a way of passing the time in return for which one is paid.

President Roosevelt is claimed as one of the progenitors of economic rights, especially by Americans or in response to allegations that economic rights are rooted in Marxism.

The two ‘rights’ quoted above from Roosevelt’s ‘Four Freedoms’ message are worthy of detailed consideration. For convenience they are repeated:

The first sounds very like a right to be provided with work. There must be a corresponding duty on someone, presumably on the owners and operators of factories, shops and other firms. In that case this ‘right’ imposes duties on private individuals. There can be few clearer differentiations from negative rights, which do not impose positive duties on private individuals. It is to be noted that the ‘right’ in Article 6(1) refers to jobs being freely chosen or accepted but not to being freely offered.

The right of every farmer to raise and sell products is a clear example of a statement that a specified group of people is owed a living. In order for the farmer to sell products at a return giving a decent living someone must be coerced into paying a price above what would be paid otherwise (if the right is to have any practical effect). This must be at someone’s cost. There are three possible sets of victims:

Control of the labour market may then lead to the restriction of civil and political rights and even negative economic rights. An example of this appears in ilo Convention Number 96 Concerning Fee-Charging Employment Agencies. This countenances the prohibition of private employment agencies. So apparently, in the pursuit of the right to work, some people may be prohibited from carrying out the work they choose, namely operating a private employment agency.

In so far as any positive content is ever proposed for the right to work, the proposals quite clearly do not amount to human rights that are in the same category as civil and political rights. If ‘work’ is not freely demanded it can only be provided at others’ expense. A right to work therefore ends up as a right to have one’s own claims attended to rather than others. Nor can this always be justified as a transfer from more to less fortunate, as the example of the American farmers demonstrates.

Any positive steps by governments to ‘create’ jobs would seem to involve:

These steps would seem incompatible with the requirements of a negative right to work. The requirements of a ‘positive’ and of a ‘negative’ right to work would therefore seem to be mutually incompatible. If Article 6(2) required such positive steps it would demand the impossible. It would be nothing more than a verbal construct designed to obtain rhetorical agreement from the representatives of governments of incompatible political and economic views.

There is nothing in Article 6(1) which requires the definition of the ‘right to work’ to be extended beyond a purely negative formulation. Article 6(2) merely lists the nostrums fashionable at the time the Convention was drafted. If experience shows that employment is best created by government policies which merely recognise and refrain from interfering with a negative right to work, then the Committee should not allow its "neutrality between systems" to prevent it from saying so.

One of two statements must be correct about the rights contained in Articles 7 and 8 of the icescr, ‘rights in work’.

This should be sufficient to dispose of rights in work as human rights. Nonetheless, one or two further observations should be made. The icescr is characterised by some opponents as the ‘holidays with pay treaty’ to which Alston replies in injured tones:

Alston has clearly missed the point. The point is not that a right to a holiday is ‘demanding’, but that it is fatuous.

The provision is written as if a holiday with pay is manna from heaven that can be conferred upon employees without cost to themselves. In fact, the ‘right’ to a holiday with pay cannot possibly be a human right for two simple reasons:

It goes without saying that any such ‘machinery’ constitutes an inroad into freedom to contract and to choose one’s own work. To see that that is so, consider the inevitable demands that these terms should also apply to self-employed people. This would mean that a self-employed person would presumably be unable to take a job that is only available at a very low fee for the sake of exposure or experience, or because it recycles previous work, or pro bono. These factors apply in principle just as much to employees who should not be prevented from accepting work that might not be available at a higher wage, for similar reasons.

All ‘rights in work’, whether relating to pay, safety or holidays, can only be obtained by increasing productivity. This can be done through technological innovation or improvements in the efficiency of work opportunities. None of the ‘rights’ contained in the Covenant are likely to encourage improvements in productivity, and governmental action will seldom have this effect (apart from the removal of government imposed barriers). It should also be noted that impositions on nations such as reporting requirements and conferences required by the Covenant and other international instruments can only decrease productivity in the aggregate.

Education has long been recognised as an adjunct of civil and political rights. A democracy requires an informed public; one of the prime functions of education is to liberate the mind and to open it to a wider range of possibilities, thereby increasing opportunities, especially for those least likely to have a wide view of the world given to them by their families.

At first, education was recognised as a civil and political right. The draft German Constitution of 1849, which was instrumental in the developing concept of the Rechtstaat in Central Europe, recognised that education was a concern of the state which had a responsibility to ensure that the poor had access to a free education (but not necessarily one which the state provided). It also asserted the right of all to found and direct schools and to teach their own children at home.

As a negative right, the right to education would seem to have two main requirements:

The idea that the state should provide education for all is descended directly from Marxist traditions and appears as a constitutional right for the first time in (Stalin’s) Soviet Constitution of 1936. It was then taken up by organs of the United Nations which, in this area as in others, were dominated by socialists (the British representatives on the unesco Council were Professors Laski and E H Carr).

The positive aspect is obviously that the state should take steps to ensure that everyone has access to at least a minimum level of education. Since more or less universal state education was already provided in many of the states creating the United Nations, and given the identities of those drafting the icescr, the idea that the state should actually provide education was taken for granted. The relevant articles of the icescr in fact differ markedly from other articles. In particular, Article 13 sets out more detailed provisions than other Articles and is susceptible to more detailed analysis.

Article 13 (1) sets out a fundamental right ‘to education’. It also sets out certain aims which ‘education’ is expected to pursue. One of these is the furthering of the activities of the United Nations for the maintenance of peace.

Article 13(2) sets out a mechanism for achieving this. This consists of the immediate implementation of free (i.e. publicly provided) primary education and the progressive provision of free secondary and tertiary education.

Article 13(3) requires ‘respect’ for the right of parents and guardians to choose a system of education other than that provided by the state.

Article 13(4) recognises the liberty of private individuals and groups to set up educational institutions, subject to the power of the state to lay down minimum standards.

Article 14 imposes a requirement for states which do not provide free primary education to produce a plan for doing so.

Unlike rights such as the right to housing, almost no writing can be found on the definition and scope of the right to education. The only attempts to define the right to education appear in official publications of un organs, some of which are referred to below. Such attempts are partial at best, usually being in the context of the study of some special group.

Paragraph (1) does two interesting things:

Paragraph (2) is unique in the Covenant. Elsewhere in the Covenant rights to food, housing and to a ‘decent standard of living’ are recognised. In no other case is a detailed programme set out specifying how these rights are to be pursued. Article 12 on health, for example, does not specify that the government must provide health care free at the point of use but requires at para 2(d) only:

The prescription in Article 13(2) appears to undermine the Committee’s own statements that it is for the signatory states to decide how to implement the Covenant so as to achieve the goals set out. It has not suggested, for example, that the right to housing requires that the state provide everyone with a house free. It seems to be regarded as axiomatic, however, that the right to education should be satisfied by state provision.

Not only is a detailed programme set out (which includes the provision that the material conditions of teaching staff shall be continuously improved, apparently without limit) but the implementation of this programme will in fact prevent the realisation of the negative rights in paragraphs (3) and (4).

Paragraph (3) requires that governments respect the liberty to send children to schools other than those established by the state. There is obviously an element of weaselling in the word ‘respect’. This arguably means that the slant of the whole Article is towards favouring state education with private provision for a few eccentrics. But in other areas it is common to talk of "effective implementation", in other words that it must actually be possible for the population to enjoy a right. This is clearly not the case so far as access to private education is concerned. Typically, only the relatively well off can afford to send their children to a private school without assistance with fees. This is an inevitable consequence of the implementation of paragraph (2). The provision of a state provided ‘free’ education system means that high levels of taxation have to be levied down to relatively low income levels. The effect of this is to prevent the effective enjoyment of this right by a large part of the population. There are possible ways of overcoming this obstacle which are discussed below.

Even if parents can afford to send children to a private school they may not really escape the state system because of the requirement to follow a national curriculum. It is clearly envisaged in the Article that the state be able to set minimum standards, but a national curriculum of the sort now being implemented in New Zealand is not a minimum standard: it specifies in detail what is to be taught and purports to specify clear ‘learning outcomes’ against which students’ achievement can be assessed. The provision of a ‘national curriculum’ subsidised by taxes clearly crowds out alternative curricula such as the International Baccalaureate which parents might otherwise choose. In fact it is clear that at least some of the support for the National Curriculum derives from views that New Zealanders ‘ought’ to be educated in a particular way in order to achieve various social goals.

Paragraph (4) requires that private individuals be allowed to establish educational institutions subject to the setting of minimum standards by the state. This article is currently breached in New Zealand in a number of ways.

First the government, by providing a chain of ‘free’ schools and subsidised state tertiary institutions, effectively crowds out and marginalises private school and tertiary provision. This clearly prevents effective enjoyment of this right. The government also sets standards for recognition far in excess of minimum standards. Furthermore, private schools are discriminated against, since those with buildings which do not come up to standard will not be allowed to commence operation, whereas state schools with sub-standard accommodation are allowed to continue to function.

Secondly, there are some legislative restrictions which constitute clear breaches of paragraph (4). The most obvious is s 159 Education Amendment Act 1989 which prevents anyone other than the government from setting up a university. Similar restrictions apply to polytechnics. Private Training Establishments can apply to the New Zealand Qualifications Authority to use the word ‘university’ in their title but they will not be universities and their vice-chancellors will not be members of the Vice-Chancellors’ Committee (s 240(3)). In practice the university cartel has been vigorous in maintaining its monopoly over the title ‘university’, threatening litigation on the only occasion a Private Training Establishment has applied to use the term ‘university’ in its title.

Paragraph (2) is clearly of lesser status than the remainder of the Article. It does not set out fundamental rights but a ‘recognition’ by the States Parties that the way to achieve the right to education is by the mechanism set out. Since the Covenant was drawn up in 1967 we have learned by experience that the mechanism set out is not necessarily the best way to achieve the rights set out in paragraphs (1), (3) and (4). Other methods of provision are under frequent discussion and, whatever their relative merits, it seems ridiculous to argue that particular methods of achieving universal access to education infringe fundamental human rights.

It has been argued above that implementation of paragraph (2) renders effective implementation of paragraph (3) impossible. There are ways of reconciling them, however. If there were a universal voucher scheme, the state would finance access to public and private schools. Conversely, a scheme whereby only the poor receive financial assistance to attend school and the remainder are required to pay from their own resources would fail to meet the obligations under paragraph (2) and Article 14.

Yet the only difference between the two schemes is that under the universal voucher scheme money belonging to a large chunk of the population is churned via a number of public servants. The bulk of taxation is derived from middle income families and the bulk of the benefit returned to the same people. The universal scheme, however, requires the employment of public servants to administer the raising of the taxation and the issuing of the vouchers, thereby incurring deadweight losses and draining away money which the taxpayers want spent on education. It is ludicrous to describe a requirement to churn money and employ public servants in this way as a human right.

Furthermore, experience in the United States and elsewhere shows that universal voucher schemes are liable to capture by interest groups such as teacher unions and educational theorists in the same way as a centrally funded education system. A universal voucher scheme therefore always offers the potential for the state to undermine the implementation of paragraphs (3) and (4) by attaching onerous conditions to the acceptance of vouchers.

The commentators and the Committee tend to focus on paragraph (2) rather than on paragraphs (3) and (4).

The inevitable conclusion is that the Covenant is seen by those actively involved with it as a vehicle for increasing state power rather than as a check on it, as human rights documents are generally expected to be. The ‘rights’ laid out in the Article are conflicting and laden with assumptions as to the desirable way of achieving goals, something which the Committee purports to eschew. There are also fundamental and inarticulate assumptions about how much education one is entitled to. The positive ‘right to education’ is placed deservedly in inverted commas, since, given that resources are always scarce, it is clearly not a right which even ought to be available to all people at all times, subject to carefully defined exceptions. It is something the provision of which must be rationed one way or another.

Article 15 (1) somewhat vaguely guarantees the right of everyone:

A number of definitional questions arise, such as what is ‘cultural life’ and for that matter what is ‘non-cultural life’? Answers are not required to these questions, however, as long as this right is interpreted in the purely negative sense as a civil and political right to lead one’s life and engage in pastimes without interference from the government or from others.

The Guidelines for country reports ask for details of government funding of ‘cultural development’ and ‘public participation in cultural life’. The questions go on to ask about:

From this it seems that ‘culture’ consists of a combination of urban liberal-intellectual pastimes and surviving features of pre-industrial cultures. For some reason gentlemen’s clubs, hunting, shooting, rugby and A & P Shows are not included despite the fact that numbers of New Zealanders might well regard them as part of their ‘culture’. In other words the question represents the viewpoint of the kind of people who become members of the Committee.

In practice, this provision confronts a government with one of two courses of action:

Starting from the proposition that one should be free to choose one’s lifestyle, we end up in a position where we are apparently compelled to support other peoples’ lifestyles. The intermediate step is the argument that one does not have a genuine ‘choice’ of lifestyle if one cannot afford to lead the life one happens to want to lead. This is the argument at the root of economic and social rights, that rights only have meaning if one can actually exercise them unconstrained by resources. This example clearly demonstrates that this argument entails the restriction and eventual destruction of individual rights.

The Guidelines ask states to report on

One can only observe that, generally speaking, the countries in today’s world where members of the population have the freest and greatest actual access to the benefits of scientific progress are those where the government does least to ensure that this is the case. By far the most efficient and effective distributor of the benefits of innovation is a free market. Countries which have in the generation prior to 1990 accorded greatest rhetorical commitment to the pursuit of economic and social rights are characterised today by a backward lifestyle, lacking in what Westerners consider basic amenities, and by a devastated environment.

The benefits of scientific progress will best be encouraged in a society in which innovators have to assess what people will want to buy and provide it for them before anyone else. Competition will then provide the stimulus to improvements and price reductions in order to stay ahead of new entrants to the market.

The correct answer to this question, therefore, as to so many others, is that the government has provided a framework of law and protection for individual rights which enables the market to distribute these goods rapidly to those who demand them. The only exception is the provision of public goods of which a healthy environment is arguably one. Even here scientific progress will be of little help without innovation which will only occur if there is predicted to be a demand for the goods on the part of consumers.

If I cannot be confident that I will be able to harvest my crops and apply them to my own and my family’s well-being, there is no point in my planting them. Likewise there is little point in a ‘right to work’ if I will not be able to apply the resulting income to my own purposes.

If the government has discretionary power to remove my wealth or income, then I cannot plan my own self-advancement. My energies will be diverted from increasing my own wealth to influencing the collective processes which will distribute wealth. If I am unable to exert substantial influence over those processes I will be at the mercy of them.

Furthermore, without property rights most other rights, including civil and political rights, would be endangered. A free press, churches and all other voluntary institutions of a free society require the protection of property rights for their survival to be assured. If property were not protected by law, such institutions would constantly be vulnerable to governmental interference, whatever fine phrases about freedom of speech and religion were contained in Bills of Rights.

Individual autonomy requires, therefore, that I should be able to protect the products of my labour against others and also that the government should not deprive me of them without some predictable and lawful process.

From this stems the recognition that a right to property is:

Neither does a right to property appear in the New Zealand Bill of Rights Act 1990. It is unclear why it does not do so, unless it were that the mere mention of a right to property would have aroused the ire of Labour members. Since the Bill of Rights Act 1990, cannot override any other statute, there seems no logical ground on which to oppose the insertion of a right to property unless one intends that the government should have the power to deprive people arbitrarily of property by regulation or discretionary decision.

In the United States, by contrast, a constitutionalised ‘right to property’ has been used to maintain owners’ rights against environmental regulation and other forms of interference. The us government has nonetheless been able to engage in substantial environmental planning and collectivisation of aspects of agriculture (such as irrigation) by virtue of the fact that it owns a substantial proportion of the land in the western United States.

A great deal has been written on the American aspect, some of which at least depends upon the precise wording of the us Constitution. This chapter will be limited to discussing the arguments made about the right to property in the context of the division between civil and political rights on the one hand and economic and social rights on the other.

The fact that the classical right to property obviously has economic consequences is argued as evidence that the distinction between the two kinds of right is false. This is evidently fallacious, partly because economics is about preferences and not about material wealth. Since any ‘right’ can be exercised so as to maximise one’s utility, any right has economic consequences. The problem here is one of semantic confusion. Certain rights have been labelled ‘economic’ from which it is then argued that any right to which economic consequences attach belongs to that class.

It will be noticed that in this passage:

This redefinition is pursued in three ways:

Secondly, the argument is made that "the inherent conflict between the right to property and social rights can be avoided by giving more weight to the social function of property". The author then gives as examples housing rights which ‘require’ rent controls, and environmental ‘rights’ both of which restrict owners’ property rights. It is to be noted:

Finally, we have the argument that the right to property entails a right actually to have property and if necessary be given it by the state. This exhibits serious conceptual confusion: the confusion being between the concept of ‘property’ and the colloquial sense of property as things owned. The right to property is a ‘right to rights’, to legal security in one’s possessions and to enforcability of choses in action. This third proposition, however, only makes sense if it is interpreted as a right to be given things.

This argument is a microcosmic version, therefore, of the whole argument about the distinction between the two categories of rights. First it is denied that there is a distinction and then it is argued that, of course, the economic and social right entails that one actually has a material claim satisfied whereas classical rights merely entail that the government does not interfere with the individual’s activities. Finally, the classical rights are redefined to the point of meaninglessness.

It is not entirely true, however, that no right to property is contained in the icescr. In the section on ‘cultural rights’ we find in Article 15 (1):

Although this right is expressed as attaching to ‘everyone’, it clearly is only for the benefit of those who choose to engage in certain activities. There are two possible justifications for the protection of intellectual property:

What is not explained is why the same protection of fruits of endeavour is not to be extended to the entrepreneur and innovator who develops a scientific invention in a useful and affordable form, nor to the publisher of books, nor to those who engage in other socially desirable pursuits such as putting their capital at risk to build houses for others to live in, and so on.

Quite obviously the arguments for protecting intellectual property apply equally to all other forms of endeavour. The inclusion of this provision can only be attributed to the priorities of the kind of people who draft such conventions and their lack of understanding of, in fact disdain for, the mechanisms that actually make these things available and useful to most people.

Apart from the right to property, which would include a right not to have one’s savings eroded by inflation, one can identify other economic and social rights which do not appear in the icescr, such as:

These rights can be protected in the same way as classical civil and political rights, by rules which instruct the government to abstain from activities such as interfering in contracts, inflationary spending, imposing tariffs and quotas, according privileges to particular groups and deficit budgeting.

That these rights are missing from the icescr demonstrates that its contents and the contents of similar documents are selective and reflect the political philosophy of the drafters and the conventional wisdom at the time of drafting. These factors support the view that the icescr encourages central planning and regulation rather than individual liberty or rights.

The rhetoric about economic and social rights is characterised by an intellectual laziness exemplified by:

Most of this rhetoric is provided by writers who clearly have little understanding of or sympathy for economics and who, in particular, do not understand the role of the market in allocating resources and enabling individuals to make their own choices. This is all the more disturbing since the international human rights community is one in which people seem able to carve out their own careers, writing articles of this nature, appearing before committees and ultimately being appointed to them. Very few members of these bodies will ever have put any capital at risk; nearly all are life-long salaried academics and public servants.

In this world the mere fact of agreement constitutes success, even if the agreement is value-reducing by virtue of consisting of mutual concessions of a harmful nature. There are clear incentives for the inhabitants of this diplomatic world to recommend more conferences, international instruments and implementation mechanisms. This process has opportunity costs but makes little obvious contribution to the improvement of anyone else’s living conditions.

Subsequently the implementation of those instruments is overseen by committees consisting of two classes of people: those from totalitarian states who are picked by their governments and those from the West who are largely self-selecting in the way described above.

The problems faced by those trying to implement positive economic rights do not stem from lack of resources, but from the fundamentally intractable problem created by imagining that the aspirations expressed as rights in the Covenant can be pursued by governmental action, whether national or international. To repeat the points made when considering the central right, the right to an adequate standard of living, positive economic rights:

It is clear that the activities of the Committee and the international human rights process have potentially harmful consequences for business and for economic growth, and therefore for the achievement of the ends the icescr is supposed to pursue. This is true both at domestic and international levels.

There are, however, substantial opportunities, even within the mechanism of the icescr, to argue for the recognition of negative eonomic rights which alone can create the growth necessary to realise in a practical way the aspirations expressed as ‘rights’ in the Covenant. It is clear that negative and positive economic rights are in conflict and that this conflict has not been faced by the Committee or by the writers.

The voices of those who believe in individual liberty, who understand the connection between political and economic freedom and who wish to generate wealth in order to better the lives of all, are rarely heard in these processes. Such individuals and groups should bear in mind an important comment of the Chair of the Committee on Economic, Social and Cultural Rights which contains both a warning and an opportunity: