Press Association/Jonathan Brady. All rights reserved.
2016 marks the 50th anniversary of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Over the past five decades, there has been growing recognition of economic, social and cultural rights in both international and domestic systems of law. However, there is still resistance to accepting the indivisibility between civil and political rights on the one hand and economic, social and cultural rights on the other. An example of such resistance can be found in the discussions of a new General Comment on the Right to Life by the UN Human Rights Committee, particularly in regards to the right to housing. As stressed by the UN Special Rapporteur Leilani Fahra in her last report on the right to adequate housing: “the death rate among homeless people ranges from two to ten times higher than for those who are not homeless” (A/71/310, August 2016). This is, therefore, a matter that requires urgent recognition.
The broadening of the concept of the right to life to include the protection of economic, social and cultural rights is, at its core, a matter of equality. This is because individuals in different circumstances face different threats to their right to life. If we are to guarantee the right to life for diversely situated individuals, whether they be poor or rich, woman or man, straight or gay, black or white, transgender or intersex, with disabilities, and of any age or nationality, we must recognise that hazards vary in each situation. Moreover, we must learn to recognise more than the threats imposed by circumstances where a state acts directly to kill, evict or deport someone in serious health conditions. Instead, we should also consider circumstances where the state fails to provide access to, for instance, adequate housing, health services or water. We need to consider not only negative state obligations, but also positive state obligations.
Protecting the right to life in cases where a state acts, but not where it fails to act, is to consider the lives of certain groups more valuable than others. Given that this is the case, we can’t avoid asking: “whose lives really matter?” From a human rights perspective, based on the idea of equal rights and equal dignity, all lives should matter: not in a generic way, but in a specific ways that take into account the particular threats faced by diverse, sometimes silences, groups. Black lives matter, poor lives matter, gay lives matter. Why would we, under a human rights framework, prioritize the protection against certain threats over others?
Protecting the right to life in cases where a state acts, but not where it fails to act, is to consider the lives of certain groups more valuable than others.
The answer to this question is strongly related to common arguments raised against positive state obligations, even within the human rights movement. States have obligations to respect and refrain from directly violating rights (negative obligations). However, they also have obligations to protect individuals from third party violations and to fulfil rights by implementing, for example, education, housing, and health progams (positive obligations). An egalitarian interpretation of the right to life would, therefore, go beyond the enforcement of negative obligations. For instance, an appropriate application would extend beyond potentially harmful state-led evictions and deportation to encompass the implementation of programs on public housing, health, and sanitation.
The connection between the right to life and economic, social and cultural rights (including the right to adequate housing) may seem obvious at times: a person who is homeless will be exposed to the elements, to violence, and won’t have proper access to water or sanitation. Why then is there still resistance to interpreting the right to life broadly enough to include positive obligations from the state? This position is especially puzzling given that positive obligations are necessary to protect people’s lives in an egalitarian manner. The situation can be explained by four objections made, at times, within the human rights movement itself: the weakening of the right to life’s core, the liberal assumption that individuals are completely responsible for the social position they occupy, the extra costs of positive obligations, and the fear of the increasing complexity that the broadened protection of rights would require.
The first argument remains problematic even if we accept that broadening the right to life’s interpretation would indeed reallocate the focus from direct to indirect state violations. Human rights propose the inherent, unique value of each single life. Given that this is the case, how can we justify the sacrifice of rights pertaining to certain groups in favour of others? Expanding the interpretation of the right to life, including those without a strong political voice, is again a matter of equality.
The second argument against positive obligations is equally flawed. Social position is influenced by a variety of factors: being born in a mansion or in an informal settlement, having or not having access to housing, being born in a poor or rich family, in an impoverished or wealthy country, with or without a certain disease. Can anyone really say that they have complete control over all the elements that led to their position in society? Is the fact that we are in a particular situation of poverty and homelessness completely attributable to poor life choices or lack of effort? If not, we must recognize that everyone is, at least, only partially responsible for their lack of access to economic, social and cultural rights. From that it follows that states are at least somewhat responsible for providing access to these rights.
Can we justify an unequal distribution of resources among different groups?
Positive obligations do imply costs. However, the protection of human rights in general imply costs: from public housing to maintaining a system of justice sufficiently independent to investigate homicides committed by a state. The question to be asked here is, again, one regarding equality. Can we justify an unequal distribution of resources among different groups? Are we willing to protect the right to life of some but not others; the right to life of those, for instance, who may die in front of a gun or due to starvation?
Finally, there are concerns over the growing complexity of human rights protection and whether courts will be able to cope. Indeed, positive states obligations and indivisibility among rights do increase the complexity of protection. However, these changes increase complexity in a way that is unavoidable for the strong protection of rights: a protection that will cover all individuals, in all circumstances, whether they be poor or rich, black or white, woman or man, at any age, with any disability, no matter what choice of sexuality or gender identity. The only means of fulfilling human right’s promise of equality and universality is to embrace that complexity.
In summation, for all lives to matter, particularly those of the silenced and oppressed, the UN System must adopt an interpretation of the right to life that encompasses both economic, social and cultural rights and positive state obligations.