Second Generation: What Economic, Social and Cultural Rights Are

In one line

Economic, social and cultural rights are subject to progressive realisation to the maximum of available resources, but that standard is a legal obligation with immediate components rather than a licence to postpone, and the objection that they are unjusticiable has been falsified by practice.

What is in the category

Work and its conditions: the right to work and to free choice of employment, to just and favourable conditions, to equal pay for equal work, to a remuneration ensuring an existence worthy of human dignity, to rest and leisure and periodic holidays with pay, to safe and healthy working conditions, and to form and join trade unions.

Security and subsistence: social security, an adequate standard of living including adequate food, clothing and housing, the continuous improvement of living conditions, freedom from hunger, and the highest attainable standard of physical and mental health.

Formation and culture: education, directed to the full development of the human personality; the right of parents to choose the kind of education given to their children; participation in cultural life; and the benefits of scientific progress and the protection of authorship.

Where they are. Articles 22 to 27 of the Universal Declaration, and articles 6 to 15 of the Covenant on Economic, Social and Cultural Rights.

The obligation, and it is textual

Article 2(1) of the Covenant. Each State Party undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Article 2(2) guarantees exercise without discrimination of any kind on the same list of grounds as the other Covenant.

Four things in article 2(1) that are immediate and not progressive.

To take steps, which begins at once. A State that has taken no steps has breached the article regardless of its resources.

To the maximum of available resources, which is a ceiling on the excuse, not a licence. A State spending on prestige projects while children starve has not used its maximum.

All appropriate means, including particularly legislative measures, which makes legislating a named obligation.

And non-discrimination under article 2(2), which is immediate and absolute. Whatever a State provides, it must provide without discrimination, and this is where most successful litigation actually happens.

The charge, stated at its strongest

One: they are vague. "An adequate standard of living" has no determinate content, so no court can say whether it has been met.

Two: they are unaffordable. A State cannot be under a duty to do what it cannot afford, and duties that vary with the budget are not duties.