Selected Domestic Legislation Upholding ESCR
State parties to the ICESCR may and are expected to use domestic legislation to promote and protect economic, social and cultural rights. A well-developed national legal framework is a key component in ensuring enjoyment of ESCR within a country. Legislative measures which respect the international standards set forth in the ICESCR and other treaties but also take into account the national conditions are important, however as Paragraph 10 of General Comment 9 (3 Dec 1998) notes: While the general approach of each legal system needs to be taken into account, there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions. Legislation gives force to ESCR domestically, in conjunction with courts and other adjudicative bodies, as highlighted below:
- Minimum wage/right to an adequate standard of living: In 1894, New Zealand became the first nation in the world to enact a minimum wage law. Other countries soon followed suit, including Australia (1896), the United Kingdom (1909) and the United States (state of Massachusetts in 1912). More recently, living wage laws have been passed at the local level, requiring government contractors and businesses to pay a wage a certain percentage above the poverty line.
- Social security or welfare: Laws mandating assistance for the poor have a long history. Since the first poor laws established in England (1601), governments have used legislative measures to confront poverty. Unfortunately, in recent times, many of these mandates have been rolled back in countries such as the United States and the UK.
- Education: Free and compulsory education first emerged in Austria and Prussia in the 18th Century and spread from there to many countries around the world. It is widely recognized that widespread public education is a vital cornerstone of democracy.
- Employment guarantees: Governments have employed various types of legislation to ensure that all people are afforded the right to the opportunity to gain [one's] living by work' as set forth by the ICESCR. In 2005, the Parliament of India passed the National Rural Employment Guarantee Act which requires each state in the union of India to develop a scheme for providing 100 days of guaranteed employment each year for each household in rural areas.
- Healthcare: Brazil has implemented an innovative program to ensure access to treatment for those living with HIV/AIDS. The Brazilian program prioritizes the right to health over intellectual property concerns of Northern countries.
For more on Brazil's model of HIV treatment: http://www.theglobalist.com/storyid.aspx?StoryId=4605
Brazilian domestic legislation related to HIV/AIDS: http://www.aids.gov.br/legislacao/home1.htm (in Portuguese)
UN Committee on Economic, Social and Cultural Rights General Comment 9: The Domestic Application of the Covenant, 3 December, 1998