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  • Social Economic Rights and Human Rights Commissions
  • Mario Gomez (bio)

I. Introduction

There is widespread acceptance now of the ideas of interdependence and indivisibility. While the debate may not yet be over, a consensus is clearly emerging on this point. By accepting that all human rights are interdependent and indivisible, states and nonstate actors accept that both civil and political rights, and economic, social, and cultural rights should be protected and promoted with the same intensity. They reject the argument that civil and political rights should be given priority over economic, social, and cultural rights, or vice versa.

This increasing concern with socioeconomic rights has raised at the same time a need for new and effective machinery. While, no doubt, the first step is the recognition of these claims as rights, the need for effective enforcement also becomes important. This increasing concern with socioeconomic rights has emerged in an environment in which the strongest supporters of these rights, and many of the supporters of a strong state, have disappeared. The market has reared its head as the dominant ideology and the state is in the process of being rolled back. 1

The ideal human rights machinery needs to be accessible, effective, and credible. Too many institutions and processes have been created which have failed to meet these criteria. This has been one of the major concerns in relation to human rights commissions or national institutions. In Sri Lanka, for example, the chances that the creation of a commission may result in a propaganda exercise for the state are very real.

This paper deals with two problematic areas in the field of human rights: effective mechanisms and socioeconomic rights. It argues for the [End Page 155] creation of a separate human rights commission to address questions relating to the realization of socioeconomic rights. 2

II. National Mechanisms for the Protection and Promotion of Rights

National or domestic mechanisms for protecting and promoting human rights can take many forms. Among them are the courts, ombudsmen, and human rights commissions.

A. The Courts

The human rights movement has traditionally looked upon the judiciary as the primary method through which human rights could be enforced. The courts have been entrusted with the task of interpreting bills of rights or national legislation dealing with human rights.

Courts can provide a remedy when a right is violated. Thus, the violation is addressed retrospectively. However, the jurisprudence of the court also lays down standards for future conduct. Moreover, judicial pronouncements provide a fertile source for giving meaning to broad and vague human rights norms. The role of the courts though is limited to acting on complaints brought to their attention. They seldom, if ever, initiate action on their own. Thus, their success depends to a large degree on a socially conscious citizenry and active public interest groups.

In other areas, such as education, the role of the courts is limited. They cannot engage in educational efforts directly. They depend on media coverage and academic discussion for a dissemination of the ideas contained in their judgments.

Although the role of the courts may be restricted in the area of socioeconomic rights, this does not mean that they have no role to play in this area. The jurisprudence developed by the Indian Supreme Court is a clear example of what a court can do.

Two decisions of the Indian Supreme Court on the right to education are recent examples of an attempt to develop these rights. The decisions in question are Mohini Jain v. State of Karnataka 3 and Unni Krishnan v. State of Andhra Pradesh. 4 Both decisions relate to the same set of facts. [End Page 156]

In Mohini Jain, the Supreme Court, taking a broad view of the Indian constitution, held that every citizen has a right to education. 5 Although the right was not expressly incorporated in the Indian Constitution, it flows directly from the right to life recognized in Article 21. The Court observed that “[t]he right to life under Article 21 and the dignity of [the] individual cannot be assured unless it is accompanied by the right to education.” 6 The Court argued that the Indian Constitution combines “social and economic rights...

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