Thank you Madam Chair
There has been much discussion in this room on the question of resources. In this context, the distinguished representative of Canada put the matter most pointedly. She said that we accept that if social benefits are provided, there must be equal access. But what if someone brings a complaint asking that social benefits be increased?
This question, in legal circles, is sometimes called the hard case. And I might add it will be the rare, or the rarer, case under the Optional Protocol. As a lawyer working in this area, I can say that the majority of requests we receive for legal assistance concern matters such as forced evictions and disconnection from water services. But cases concerning positive obligations will come before the Committee and, while many of these will not concern significant resource outlays, some inevitably will.
So let us hypothesise for a moment. How would the Committee address such a case, as proposed by the delegation of Canada, in light of the Committee’s current practice and experiences at the national and regional level?
Their approach, I believe, will be similar to cases in the area of discrimination, particularly disability discrimination. When courts are confronted with a claim, for example that public or private buildings or services should enable wheelchair access, they ordinarily engage in a four-stage process:
1. Has the claimant been denied the right (discrimination in this case)?
2. Is there a corresponding failure by the government (or, at the national level, a private actor) to take action?
3. Is there any defence the government or private actor can rely upon? In such cases, one of the defences is ordinarily ‘undue hardship’ which takes into account resource considerations?
4. What is the appropriate remedy?
1. Denial of the right
The Committee will thus firstly examine whether the social benefit is adequate for the relevant right. For example, let us imagine the particular social benefit is a rent subsidy and enables an unemployed person to obtain housing. The Committee would thus look at the standards of adequacy for the right to housing, in particular that housing must be affordable, as set out in their General Comment No. 4. It may also look to ILO Convention 102 on Social Security which sets out some minimum standards. They would, I believe, be very concerned if the level of the social benefit prevented a person from obtaining access to a basic level of accommodation on a regular basis, exposing that person to lengthy periods of homelessness.
2. Failure to Fulfil duty
The duty that corresponds to the right to housing under the Covenant is that of taking steps to ensure progressive realisation. The Committee would then inquire what the government has done in response to this situation. Three responses might be received from the government:
A. The first is that legislation or a program is already in place to address the circumstances of the claimant, for example an emergency relief program. The Committee might ask whether it has been implemented in practice. In a recent Indian case, the Supreme Court found that the national and state governments had failed to properly implement various nutrition schemes that would have prevented starvation.
B. The second response of government might be that they have a program to again address the claimant’s needs, but it will only be progressively realised because of non-financial constraints. For example, providing information to rural areas or building the capacity of service providers. The Committee might then inquire as to whether all necessary steps have been taken to ensure the program is implemented in the shortest period of time, including requesting international technical assistance.
C. The third response might be that the relevant government ministry (for example housing or social security) simply does not have the necessary resources to increase the amount of the rent subsidy. And this takes us to the third step.
3. Defence of Lack of Resources
The Committee may firstly concern itself with the relevant Ministries, inquiring as to the existing allocation of resources within the government department. If for example, the programmes (and thus the budget of the ministries) was overwhelming devoted to supporting high-income groups, middle-income groups or even low-to-middle income groups, they would, I expect, be concerned. They might ask whether existing resources can better address the rights of most disadvantaged. An interesting example of this is the Numerus Clausus cases in Germany where the evidence disclosed, in one case, that a certain University could have actually enrolled more students in its medical faculty, with existing resources, in accordance with the right to freedom of occupation. However, the possible remedy the Committee may recommend will be contingent on many factors: I will return to this in a moment.
But the State party may be able to convincingly show that the ministries are doing the best they can, demonstrating that the internal allocations are reasonable and adequately directed to ensuring the right to housing of the most disadvantaged. This then puts the question of the national budget squarely in focus. The Committee might take two approaches: the substantive approach or the dialogical approach.
The first approach would be to appraise itself of the basic priorities within the budget and secure an understanding of the extent to which it directly addresses economic, social and cultural rights, in order to determine the reasonableness of the government’s argument. Whether the Committee could determine the reasonableness of the priorities would perhaps differ from case to case. In some case, the answer it might be clear: the South African Constitutional Court certainly felt this way in the Sobroomany case in relation to the lack of resources for the provision of dialysis machines. In others, the Committee may conclude it lacks the sufficient evidence to make such a determination. In any case, it is likely to tread carefully, given that national budgetary allocation is primarily a task of the executive and parliament. The Committee would follow the lead of domestic courts in ensuring a continued delineation of roles and expertise. Rather than “second-guessing” difficult policy choices or budgetary decisions, they would permit a margin of discretion for States but would also be guided by its present focus on the situation of vulnerable groups whose needs may have been ignored in program design or resource allocation.
Secondly, it is important to remember that the structure of a complaints procedure, like that of the periodic review, may occasion a constructive dialogue between the Committee and the responding government, just as the review procedure does. The Committee might, for example, ask the government to re-consider whether it could possibly increase the social benefit, and report back to the Committee within a certain period. The recent decision of the African Commission on Human Rights concerning the adequacy of health care in hospitals for the mentally ill provides an example of how, in the course of reviewing the evidence of resource constraints, solutions and remedies come to light in a way which never would have occurred if no complaint or hearing had been possible. The Government of the Gambia disclosed during the conduct of the proceedings that it actually had sufficient drug supplies for the patients. In these circumstances, the Commission after noting that the country suffered resource constraints, felt comfortable in ordering it to provide adequate medical care.
4. Remedies
The types of remedies recommended by the Committee are likely to depend on a number of factors: the degree of evidence, the seriousness of the deprivation for the victim, the magnitude of resources required to meet the claim and the good faith shown by the government. It might range from simply asking the government to investigate various possibilities to redress the situation to asking the government to increase the amount of social benefits, but the recommendation is probably only likely to address the overall level of social assistance as opposed to making specific recommendations about a particular entitlement or subsidy.
The Committee would have a growing body of creative jurisprudence from domestic courts on fashioning remedies to positive rights claims which preserve the respective roles of courts and legislatures. Often, judges have been able to either rely on governments’ own policies or regulations to ascertain what is “adequate” in a particular circumstance, or to provide governments with time to come up with an appropriate policy or program through which to protect rights. This was the approach of Justice Arbour, of the Supreme Court of Canada, and our next High Commissioner on Human Rights, in her dissenting opinion in the Gosselin case. Justice Arbour noted that the Province of Quebec, in that case, had already ascertained the level of social assistance necessary to cover basic necessities, and hence the court could rely on that in determining if the government had failed to provide sufficient assistance to protect the right to an adequate standard of living of employable individuals under thirty. At the same time, when it came to considering the appropriate remedy, Justice Arbour, like all of the four dissenting judges in that case, wrote that she would have issued a suspended declaration of invalidity to provide the government with time to correct the unconstitutionality in whatever way it found most appropriate, had the government not already made the necessary changes.
In the Eldridge case, the Supreme Court of Canada considered the cost of a program to provide interpreter services as a percentage of the over-all health budget, and found that it would not be reasonable, in light of these manageable costs, to ignore the needs of the deaf and hard of hearing in the provision of healthcare services. But the Court left it to the government to decide on the best program. The court’s job, in other words, was to determine if rights had been violated, but it was left up to the government to determine the most appropriate means of implementing the necessary program to remedy the violation.
Similar examples are found in the approach the CESCR has taken in its reviewing periodic reports. In its concluding observations on the Philippines, the Committee recommended that consideration be given to increasing the proportion of the national budget devoted to slum upgrading programmes and community mortgage programmes. Similarly, in its review of Canada, the Committee requested and considered information about the percentage of the federal budget allocated to housing programs in relation to the growing problem of homelessness.
Malcolm Langford, Senior Legal Officer, 26 February 2004
Centre on Housing Rights & Evictions (COHRE)
