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Max Planck Encyclopedia of Public International Law [MPEPIL]

Standard of Living, Promotion of

Chris Maina Peter

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 14 December 2019

Subject(s):
Right to adequate standard of living — Right to housing — Right to food — Right to social security — Women, rights — Children, rights — International economic law

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Introduction

The right to life is the most basic of all rights to which the individual is entitled (Life, Right to, International Protection). However, it is not sufficient that the mere physical existence is guaranteed. Life should be of high quality in order to be worth living. This makes the promotion of the standard of living one of the prime duties of both the international community and the State at municipal level.

Different people all over the world have different lifestyles due to their backgrounds and cultures. Therefore, the question of whether a particular lifestyle reaches the threshold of the standard envisaged by the international community or not is relative. Standard of living does not necessarily mean the same all over the world. When studying a people and its culture, one needs to examine whether its ways of life provide the member of that society with the basics of life and assurance of survival. These include sufficient food, which is shared in an organized manner so that nobody starves; shelter, which is sufficient to protect a human being from the vagaries of life; and social security, through assurance of members of the group that no one will suffer from an inability to fend for oneself, and that the society or group has sufficient mechanism to provide for such eventuality.

It has been emphasized that everyone should be able, without shame and without unreasonable obstacles, to access the necessities of life. Thus, no one should have to live in conditions whereby the only way to satisfy one’s basic needs is through degrading themselves or depriving themselves of their basic freedoms, such as through begging, prostitution, or forced labour (Sepulveda Human Rights Reference Handbook 267; Forced Labour/Slave Labour).

B.  Notion and Scope

In human rights law, the basis of the right to an adequate standard of living is to be found in Art. 25 (1) Universal Declaration of Human Rights (1948) (‘UDHR’). This provision asserts that ‘everyone has the right to a standard of living adequate for the health and well-being of himself and of his family’. This article has to be read together with Art. 22 UDHR on the realization ‘of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’.

The right to an adequate standard of living is elaborated in Art. 11 International Covenant on Economic, Social and Cultural Rights (1966) (‘ICESCR’) and Art. 27 Convention on the Rights of the Child (‘CROC’).

The main components of this right include the right to food and nutrition (Food, Right to, International Protection), the right to adequate housing (Housing, Right to, International Protection), special care and assistance to motherhood and childhood (Children, International Protection), clothing, medical care (Health, Right to, International Protection), and social security (Social Security, Right to, International Protection). There are specific situations in which these rights are endangered, thus undermining the rights of the individual to an adequate standard of living and sometimes threatening the very survival of the individual. These situations include unemployment (Work, Right to, International Protection), sickness, disability (see also Disabled People, Non-Discrimination of), widowhood, and old age (see also Age Discrimination). In such a situation State intervention is vital to ensuring that the individual has access to amenities which guarantees an adequate standard of living.

C.  Main Elements of the Right to a Standard of Living

For the individual and his or her family to be able to enjoy the right to an adequate standard of living, there are certain elements which are crucial. Some are solely dependent on his or her industry, but others have to be provided for by the State. However, in both cases the State has a duty to provide a conducive environment for promotion and maintenance of a standard of living which is adequate for the well-being of the individual and his or her family.

1.  Sufficient Food and Nutrition

Food and nutrition are important for human life. However, the conception of food as a right is yet to be fully established in international law. The United Nations Special Rapporteur on the Right to Food defines the right to food as the right ‘to have regular, permanent and free access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free of fear’ (UN Commission on Human Rights Special Rapporteur J Ziegler ‘Economic, Social and Cultural Rights: The Right to Food’ [7 February 2001] UN Doc E/CN.4/2001/53 para. 14; Special Rapporteurs of Human Rights Bodies).

The right to food extends to citizens as well as aliens, including vulnerable groups within the State. These include refugees (see Arts 20 and 23 UN Convention Relating to the Status of Refugees ([signed 28 July 1951, entered into force 22 April 1954] 189 UNTS 150); stateless persons (see Arts 20 and 23 UN Convention Relating to the Status of Stateless Persons ([signed 28 September 1954, entered into force 6 June 1960] 360 UNTS 117); and prisoners of war (see Art. 26 Geneva Convention Relative to the Treatment of Prisoners of War [adopted 12 August 1949, entered into force 21 October 1950] 75 UNTS 135).

The ICESCR calls upon States Parties to ensure that everyone is free from hunger and thus they have a duty to improve ‘methods of production, conservation and distribution of food by making full use of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition and by developing or reforming agrarian systems’ (Art. 11 (2) (a) ICESCR) so as to achieve the ‘most efficient development and utilization of natural resources’ (ibid). Also, food-importing and food-exporting countries are required to ensure an ‘equitable distribution of world food supplies in relation to need’ (ibid). In this context, the Draft International Code of Conduct on the Human Right to Adequate Food (adopted in September 1997 by FoodFirst, the International Human Rights Organization for the Right to Feed Oneself, the World Alliance for Nutrition and Human Rights, and the Institut International Jacques Maritain), the World Food Summit Rome Declaration on World Food Security and the World Food Summit Plan of Action (13 and 17 November 1996) are worth consideration.

10  It is noticeable that a consensus is emerging on the complementarity of the right of the individual to food and the concept of food security. In situations where the individual cannot access food through his or her own efforts, the international community and the national State have a duty to intervene and facilitate realization of this right. In this process international and inter-governmental organizations such as the Food and Agriculture Organization of the United Nations (FAO), the International Fund for Agricultural Development (IFAD), and the World Food Programme (WFP) have an important role to play along with non-governmental organizations (‘NGOs’).

2.  The Right to Adequate Housing

11  The right to adequate housing means more than just having a roof over the head (see eg Committee on Economic, Social and Cultural Rights (CESCR) General Comment No 4 para. 7). The CESCR has identified the basic requirements of housing which can be deemed adequate. These requirements are: legal security of tenure; basic services, materials, facilities, and infrastructure such as safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of storage, refusal disposal, site drainage, and emergency services must be available; affordability for the majority of inhabitants without exclusion due to means; habitability in the sense of having adequate space and protection from the vagaries of nature such as cold, damp, heat, rain, wind, and other threats to health, structural hazards, and disease vectors (at para 8).

12  At present, over 100 million human beings all over the globe are homeless and another 1 billion live in inadequate housing facilities, mainly slums in developing countries. This is a serious situation which calls for strategies and total commitment on the part of the international community.

3.  Motherhood and Childhood and Standard of Living

13  Women, especially mothers and children, are particularly vulnerable. They thus require special care and protection which the international community has recognized in Art. 25 (2) UDHR.

14  For motherhood, care should cover the whole reproductive period: pregnancy, birth, and nurturing of the child through breast-feeding until the off-spring is independent of the mother. During this protracted period in which the mother is less capable to engage in income-generating activities and the child is particularly prone to diseases and other kinds of harm, the society has a duty to care for them. This is partially reflected in Art. 11 (2) (d) Convention on Elimination of All Forms of Discrimination against Women ([adopted 18 December 1979, entered into force 3 September 1981] 1249 UNTS 13; ‘CEDAW’) and Art. 24 (2) (e) Convention on the Rights of the Child ([adopted 20 November 1989, entered into force 2 September 1990] 1577 UNTS 3) which urges for ‘access to education and the use of basic knowledge of health and nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the prevention of accidents’. Also relevant is the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa which in Art. 14 covers health and reproductive rights ([adopted 11 July 2003, entered into force 25 November 2005] OAU Doc CAB/LEG/66.6 reprinted in [2001] 1 AfrHumRtsLJ 53 [Maputo Protocol]; see also Reproductive Rights, International Regulation).

15  The Constitutional Court of South Africa has held that any policy that endangers the mother and child should not be allowed (Minister of Health v Treatment Action Campaign, 2002). It sanctioned the provision of the drug ‘Nevirapine’ to mothers and their new-born children in order to prevent the risk of mother-to-child transmission of HIV. This decision is in conformity with Art. 14 (2) African Charter on the Rights and Welfare of the Child ([adopted 11 July 1990, entered into force 29 November 1999] OAU Doc CAB/LEG/24.9/49 [1990]) which requires States to ensure the provision of adequate nutrition and safe water; to combat disease and malnutrition through the framework of primary health care; to ensure appropriate health care for expectant and nursing mothers; and to ensure that parents, children, and community workers are informed and supported in the use of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene, and environmental sanitation, and the prevention of domestic and other accidents.

16  As for the child, the main issue is care at infancy. Also pertinent is the question of creeping discrimination between children born in and out of wedlock, which is unnecessary. This point was made by the Constitutional Court of South Africa in Bhe v the Magistrate of Khayelitsha; and Shibi v Sithole, South African Human Rights Commission v President of the Republic of South Africa (208) where it was declared that all children are equal and should be allowed to inherit irrespective of whether they were born in or out of wedlock. This matter has been treated satisfactorily in Art. 25 UDHR and the CROC both of which advocate equal treatment of all children.

4.  Right to Clothing

17  Because of cultural variations in clothing needs and wants, the issue of clothing has not been treated at length in international legal instruments, even though poor clothing may well be fatal in severe climates.

5.  Right to Medical Care

18  Health is a fundamental right, and thus every person is entitled to the highest attainable standard of health conducive to living a life in dignity (Art. 12 ICESCR; Human Dignity, International Protection). However, the right to health has to be understood in a wider context than merely being healthy. It contains both freedoms and entitlements. The freedoms include the right to control one’s health and body, including sexual and reproductive freedoms, and the right to be free from interference, such as freedom from torture, and non-consensual medical treatment and experimentation (Torture, Prohibition of). The entitlements include the right to a system of health protection which produces equality of opportunity for people to enjoy the highest attainable level of health (CESCR General Comment No 14 para. 8).

19  Several international legal instruments recognize the right to medical care including Art. 25 (1) UDHR. Also relevant is Art. 11 (1) (f) International Convention on the Elimination of All Forms of Racial Discrimination ([opened for signature 7 March 1966, entered into force 4 January 1969] 660 UNTS 195; Racial and Religious Discrimination); Art. 12 CEDAW, and Art. 24 CRC. The Supreme Court of Canada has held that health insurance should be liberalized to allow private providers to participate in provision of this service (Chaoulli v Quebec [Attorney General]).

20  The right to medical care is also recognized in several regional legal instruments. These are Arts 11, 13, and 15 European Social Charter ([revised] [adopted 3 May 1996, entered into force 1 July 1999] CETS No 163); see also Council of Europe (COE); Art. 16 African Charter on Human and Peoples’ Rights (1981) ([adopted 27 June 1981, entered into force 21 October 1986] 1520 UNTS 217 [Banjul Charter]); and Art. 10 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ([done 14 November 1988, entered into force 16 November 1999] [1989] 28 ILM 156 [Protocol of San Salvador]). In addition, the Banjul Charter underlines the right of every individual ‘to enjoy the best attainable state of physical and mental health’ (Art. 16 (1) Banjul Charter) and calls for States Parties to ‘take all necessary measures to protect the health of their people’ (Art. 16 (2) Banjul Charter). Failure to ensure availability of a minimum standard of health has been considered a violation of the Banjul Charter (see Free Legal Assistance Group v Zaire; International Pen v Nigeria; and Media Rights Agenda v Nigeria). The same recognition has been extended by the Commission on Human Rights (Res 1989/11 ESCOR [1998] Supp 2, 48), as well as the Vienna Declaration and Programme of Action of 1993 (UN World Conference on Human Rights ‘Vienna Declaration and Programme of Action’ [25 June 1993] UN Doc A/CONF.157/23). Other documents in which this right has been recognized are the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health, 1991 (UNGA Res 46/119 GAOR 46th Session Supp 59 vol 1, 188) and Art. 25 Convention on the Rights of Persons with Disabilities ([adopted 13 December 2006, entered into force 3 May 2008] GAOR 61st Session Supp 49 vol 1, 65.)

21  It is important that the right to medical care is made accessible on a fair and non-discriminatory basis to everyone within the State’s jurisdiction, and it should be exercised in a manner respectful of medical ethics, culturally, as well as scientifically and medically appropriate, and of good quality (see Auton [Guardian ad litem of] v British Columbia [Attorney General]).

22  The right to medical care also means that prices of medicine and medical services must be made accessible and more affordable, and that there must be a transparent pricing system (see eg Minister of Health v New Clicks South Africa [PTY] Ltd).

6.  The Right to Social Security

23  There are conditions which, if they occur, might make a person fail to access the basics of life. These conditions include poverty, old age, disability, and unemployment. In anticipation of such a situation, the society has a duty to put in place a system of protection in the form of a social welfare service. This is what is referred to as social security.

24  It is important to note that provision of social security guarantees continuity of a high standard of living even during hard times.

D.  Standard of Living and International Co-operation

25  Given the centrality of the right to an adequate standard of living to the very existence of the person from birth to old age, and the right’s many requirements, it is obvious that co-operation among members of the international community in ensuring realization of this right at global level is necessary. The fact that the capacities of States in social service delivery differ considerably makes working together an urgent matter.

26  This was realized back in the process of preparing the United Nations Charter of 1945. The UN Charter indicates the proximity of the right to an adequate standard of living to the very existence of peace in the world. Thus, Member States of the UN undertake to promote ‘higher standards of living, full employment, and conditions of economic and social progress and development’ (Art. 55 (a) UN Charter) with a view to the creation of conditions of stability and well-being. The UN Charter underlines the fact that this is the only way to develop peaceful and friendly relations among nations.

27  Art. 55 UN Charter is amplified in Art. 11 (1) ICESCR under which Member States recognize the right of everyone to an adequate standard of living for him or herself, and their family. The article identifies the main elements of this right as being availability of adequate food, clothing, and housing as well as improvement in living conditions. Furthermore, States Parties are called upon to take appropriate steps to ensure the realization of this right as an essential element of international co-operation. The work of monitoring State compliance with the various aspects of the ICESCR, including the right to adequate standard of living, has been entrusted to the CESCR since 1987.

E.  Assessment

28  The right to a standard of living, like all other economic and social rights, suffers from the fact that a number of States are not ready to recognize them. This is mainly due to the fear of the burden which such recognition might potentially impose on them.

29  When implementing human rights instruments, many States, particularly developing States, only incorporate civil and political rights in their bills of rights (Human Rights, Domestic Implementation). Economic and social rights, on the other hand, are often included among the non-actionable directive principles intended to guide State policy. However, in some jurisdictions courts have given weight to economic, social, and cultural rights enshrined in the fundamental principles of State policy, arguing that although they are not legally enforceable, these principles are fundamental in governing the country and thus need to be taken into account when determining the scope and content of basic rights (see Ain O Kandro [ASK] v Government of Bangladesh related to the demolition of Basties—shanty dwellings in Dhaka).

30  Some recently adopted constitutions also indicate a paradigm shift. They provide for some of the economic, social, and cultural rights within their bills of rights, thereby making them actionable at municipal level. Examples are the Constitution of Uganda of 1995 ([adopted 22 September 1995, entered into force 8 October 1995], in GH Flanz [ed], Constitutions of the Countries of the World [Oceana Dobbs Ferry] vol 19 [Supp 2008-3] 1–148), and the Constitution of the Republic of South Africa ([adopted 18 December 1996, entered into force 4 February 1997], in GH Flanz [ed], Constitutions of the Countries of the World [Oceana Dobbs Ferry] vol 16 [Supp 2004-1] 1–159). Although courts are still cautious in applying these rights (see the decision of the Constitutional Court of South Africa in Soobramoney v Minister of Health [Kwazulu-Natal] on the right to health services), constitutions of this nature have opened doors for people to pursue their rights in domestic courts. It must be added that even where the constitutional provisions are still restrictive, courts have exhibited creativity and developed a jurisprudence which supports enforcement of economic and social rights. A good example is the Supreme Court of India which has come up with very refreshing decisions (see eg CESC Limited v Subhash Chandra Bose; Consumer Education and Research Centre v Union of India; Raghubir Singh v Gulab Singh).

31  At the international level, the international community has continued promoting the right to an adequate standard of living, and other economic and social rights. This has been the case at both global and regional levels. Among the legal instruments adopted in this area are the Protocol of San Salvador and the Maputo Protocol. Therefore, prospects are good for the right to a standard of living to become widely accepted.

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