Human rights in Ukraine – 2004. XV. THE CATEGORISATION OF ECONOMIC AND SOCIAL RIGHTS
1.1. The concept of economic and social rights
Economic, social and cultural rights form one of two universally recognized areas of human rights, these being: – 1) civil aine had accepted the appeals from «Holos Ukrainy» and Serhiy Lavrenyuk, had annulled the decision of the Appeal Court in Kyiv of 17 September 2003 and had sent their claim to the Appeal Court for review. The Resolution of the Supreme Court states that «by annulling the decision of a first instance court and imposing a new ruling, the appeal court was guilty of serious infringements of procedural law» (the claim was considered in the absence of the defendant). Moreover, «by using norms to established circumstances, errors were made by the court in the interpretation of Article 7 of the Civil Code of Ukraine». In violation of the demands of Paragraph 7 of Part 1, Article 203, and Article 203 of the Civil Procedure Code of Ukraine, the court did not identify the extent to which the decision applied to each of the plaintiffs and, in contravention of the content of the law, had obliged the editorial board to publish information that, in the opinion of the claimants, was true.
In this way, on 23 June, the Appeal Court effectively established that the information in the articles by S. Lavrenuk «Special Operation «Readjustment», «Special Operation «Readjustment» – 2» and «Why pay more» was true.[16]
On 17 September, the Leninsky District Court in Vinnytsa passed a decision to temporarily suspend the publication of the newspaper «Vinnytska gazeta» for violations of the Law on the Prand political and 2) economic, social and cultural rights. This division of human rights into two distinct areas underpins various approaches to monitoring human rights and their violation.
The codification of human rights has, from the beginning of human rights discourse, generated disputes over the hierarchy of rights and how they can be prioritized. These arguments reflected the tension between different ideologies: liberal doctrines gave most weight to civil and political rights and freedoms; socialist doctrines argued that individual economic and social rights were the basis of securing and upholding political and civil rights[1].
The Universal Declaration of Human rights in 1948 included civil and political, and economic, social and cultural, rights. The Declaration was followed, in 1966, by two different covenants (The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) which envisaged differing mechanisms for the protection of human rights:
The International Covenant on Civil and Political Rights envisaged the creation of a distinct organ, the Committee of Human Rights, that would be responsible for observing how states, which had signed the covenant, upheld the obligations that it placed upon them. The International Covenant on Economic, Social and Cultural Rights did not envisage the creation of such a distinct organ[2]. Responsibility for monitoring how states upheld their obligations under the covenant was accorded to an existing organ of the United Nations- the Economic and Social Council- (ESC). Not until 1985 was a Committee for Economic, Social and Cultural Rights created.
The International Covenant on Civil and Political Rights also envisaged that the individual would have the right to report human rights issues to the appropriate authority. The Covenant on Economic, Social and Cultural rights did not envisage that individuals would have this right. This fact meant that monitoring how states upheld their obligations under the Covenant on Economic, Social and Cultural rights was based not on the right of the individual to report on rights issues, which would have placed the process beyond official control, but on a system of exception reports.
This official approach strengthened the conception that there were various generations/divisions of human rights and became the basis for arguments regarding the existence of a hierarchy of human rights and the supremacy of one category of rights over another.
A further issue that we should consider is the categorisation of economic, social and cultural rights as so called «positive» rights. Civil and political rights are regarded as negative rights, because they are based on freedom from state interference and their implementation, if not always cost free, is at least acceptably inexpensive. «Positive» economic, social and cultural rights require the concrete efforts of a given state to support their realisation and their implementation will certainly have financial implications.
We need, also, to be aware of the principle that certain issues regarding violations of social and economic rights are not subject to judicial review (the so called concept of non justiciability). This conception has, after an initially troubled period, become axiomatic. The development of human rights has, therefore, led to the acceptance of the conclusion that social and economic conditions are not just intrinsic rights, the basic obligations of a state, but normative rights the renewal of which may be accomplished by judicial processes.
1.2. The full list, and the contents of, currently recognized
economic, social and cultural rights
The Covenant on Economic, Social and Cultural rights is one of the fundamental elements in the system of human rights defence. The covenant accords the economic and social rights proclaimed by the Universal Declaration of Human Rights in 1948 an obligatory character and identifies the following as economic and social rights:
– The equality of men and women (article 3);
– The right to work (article 6);
esidential elections. The court took this decision after reviewing the complaint of Viktor Petrov, authorized representative of Petro Simonenko. Petrov complained that assessments and commentary about the platform of a Presidential candidate had been provided by the newspaper, this being forbidden by law for municipal and State means of the mass media. The court closed the newspaper until 21 November – the end of the election campaign.[17]On November 28, police officers in the Luhansk region detained a car carrying the print run of the newspaper «Tviy Vybir» [«Your choice»], supposedly for containing calls to overthrow the constitutional system. These calls had allegedly been placed in human rights material, in particular, in an academic article on the right of a nation to uprising which is set out in some Constitutions of other democratic countries. In the course of the detention, regulations of many Ukrainian laws were violated, and action taken in excess of their authority by the law enforcement officers. The print run was shortly released, yet nobody was ever punished.
On 19 May, the Supreme Court of Ukraine reversed the verdict of the Sosnivsky District Court in Cherkasy and the resolution of the Appeal Court of the Cherkasy region, finding the Chief Editor of the newspaper «Svoboda», Oleh Lyashko, guilty of resisting police officers. The case was sent back for a new review. In April 2002, following the seizure of two print runs of the Svoboda newspaper, which resulted in the criminal case which is now referred to, Oleh Lyashko had been imprisoned for 10 days. The seized issues had contained the text of an appeal for information made to State Deputy, Hryhory Omelchenko, about some aspects of the activity of the former General Prosecutor of Ukraine, Mikhailo Potebenko. On 5 February 2003, a judge of the Sosnivsky District Court, Anna Chehot, had found Oleh Lyashko guilty of a crime of medium gravity and ordered him to pay a fine of 255 UH[18]
Last year, the Russian Centre of Extreme Journalism recorded 5 cases of detention or arrest of journalists:
1. Zaporizhzhye region, February 27: Andriy Tokovenko, Dmytro Kapustin[19]
2. Zaporizhzhye region, March 18: Artem Tymchenko[20]
3. Kyiv. April 28. Volodymyr Boyko[21]
4. Transcarpathian region. May 22: Kostyantyn Sydorenko[22]
5. Lviv. May 28. Irena Tershak[23]
5. Recommendations
1) To implement a program for reforming State media outlets by changing their system of management and financing in accorda
– The right to equitable working conditions (article 7);
– The right to create and belong to a trade union or a professional organisation (article 8);
– The right to social security (article 9);
– The right to defend one’s family;
– The right to an adequate standard of living (including the right to food, clothes and shelter) (article 11);
– The right to health (article 12);
– The right to education (article 13);
– The right to culture (article 15).
The requirement to uphold the economic and social rights identified in the covenant places various obligations on a number of differing international and local bodies. A problem remains, however, with regard to the diffuseness of the contents of economic and social rights:
The right to property, although it is recognized in the Universal Declaration of Human Rights (article 17) was not included in the Covenant on Economic, Social and Cultural rights.
The Covenant on Economic, Social and Cultural rights (article 13) recognises the right to study, scientific research and creative work. The right to education and the right of parents to select a school for their children is, however, outlined in the Covenant on Civil and Political Rights (article 18)
The European Social Charter defends most of the internationally recognized economic and social rights but does not include the right to education.
1.3. The principle of progressive realisation
A basic principle of the Covenant on Economic, Social and Cultural Rights is the obligation it places on states to achieve a full defence of those rights through a course of progressive realisation (article 2.1).
This fact means that monitoring economic and social and rights is not based simply on establishing if violations of rights have occurred but, above all, determining whether these rights have been achieved with regard to existing conditions. There are, however, certain difficulties in developing a system of criteria with which to evaluate and monitor these rights. If we take modern sociology as an example it is apparent that even if we have precise economic data, there is no system of evaluative criteria. The absence of these criteria makes it impossible to describe the quality of life of the population, the structure of the middle class, the phenomena of poverty or the participation of the inhabitants in the shadow economy. What criteria are necessary to establish, from a human rights standpoint, whether economic and social rights have been realized? How far, in reality, can we reveal and quantify the core processes affecting economic and social rights?
Searching for a mechanism to evaluate progress in realising economic and social rights has led to the conclusion that formulating indices of development is required[3]. A practice of monitoring changes in such indices, known as «descriptive» monitoring, has also been developed. [4]
This «Descriptive» monitoring is based in the development of indices in spheres of activity relevant to the operation of human rights, and observing deteriorations or improvements across a given time period. The monitoring of a particular aspect of rights is not undertaken with a view to understanding the processes and factors that influence this or that indicator but aims to highlight various aspects of relevant activity. Such an approach allows to present a detailed picture of changes in rights indices, but does not provide an analysis that could be used to influence social policy.
Descriptive mnce with the recommendations of the Council of Europe and OSCE. The best example of such reform is the introduction of public TV and radio broadcasting on the basis of UT-1 National Television Channel and the First National Radio Channel.
2) To reform the institute for state regulation of television and radio broadcasting – the National Television and Broadcasting Council of Ukraine – in accordance with the Recommendations of the Committee of Ministers of the Council of Europe No. 23 (2000), 1 (1999), Directive No. 95/47/ЄС of the European Parliament and Council, dated October 24, 1995. The independence of the state authority regulating television and radio broadcasting must be ensured both through legislation and in practice. The National Television and Broadcasting Council of Ukraine should obtain sufficient financing to ensure its independence and the proper fulfilment of its functions.
3) To repeal the laws „On the procedure for mass media coverage of the activity of State executive bodies and bodies of local social government» and „On State support of means of the mass media and social protection of journalists»; including the cancellation of individual privileges for journalists of State mass media.
4) To adopt a new version of the law on television and radio broadcasting which would comply with the standards of the Council of Europe, OSCE and the European Union.
5. To introduce amendments to legislation making it possible to identify the real owner of a media outlet, especially of television channels and radio stations; to introduce effective control over the concentration of media outlets in the hands of one owner or members of his or her family; to introduce anti-monopoly restrictions for the information market in compliance with recommendations of the Council of Europe, OSCE and the European Union; to introduce necessary procedure for punishing those who infringe legislation on the concentration of the media.
6) To ensure quick and transparent investigation into all reports of violence and murder of journalists and to guarantee that journalists can exercise their rights.
7. To bind mass media owners to make their editorial policy public and to promptly inform of any changes in the editorial policy; to establish legal liability for not making public their editorial policy, making it public with a delay or giving untruthful information about their editorial policy.
8. To introduce a State program of support for local printed mass media of national and language minorities in places with large communities of the relevant groups.
9. To accelerate the procedure for ratifying the European Convention on trans-border television, the Additional protocol to the Convention on trans-border television, and to also introduce amendments to legislation on the implementation of its regulations, as well as the provisions of the EU Directive 85/552/ЕU, 97/36/ЕU „Television without Borders».
10. To disband the National Committee for Television and B
roadcasting during the consideration of Draft amendments to the Constitution of Ukraine.
[1] When (perhaps whether) the Orange Revolution ended (on 8 December when the crowds agreed to leave Independence Square, after the Supreme Court had annulled the election result, or 26 December when V. Yushchenko won the re-vote) is a matter of opinion, but it began after the second round of elections on 21 November. (translator’s note)
[2] The 2004 report on the results of monitoring violations of the rights of journalists and mass media. The Kyiv Independent Media Trade Union. Internet site: http://profspilka.org.ua.
[3] From the Ukrainian for ‘theme’ or ‘topic’ (and the adjective for ‘dark’) (translator’s note)
[4] Based on information from the website of „Ukrayinska Pravda»: http://pravda.com.ua
[5] For more information about this law, see the section about the access to information and the Bulletin of the Kharkiv Human Rights Protection Group „Freedom of Expression and Privacy», No. 2, 2004, http://khpg.org.
[6] More information can be found in the Internet publication of «Telekritika»: http://telekritika.kiev.ua.
[7] The Internet site of Channel 5: http://5tv.com.ua/newsline/118/1879.
[8] For more information, see the Internet publication «Telekritika»: http://telekritika.kiev.ua.
[9] For more information, see Hromadske radio (Civic radio): http://radio.org.ua.
[10] For more information, see the Internet publionitoring needs, therefore, to be considered in conjunction with «analytical» monitoring which aims to highlight the mutual influences and common factors operating within various spheres and the principles affecting fluctuations in human rights indices. It will be apparent that affecting qualitative changes in social policy will require the deployment of both «descriptive» and «analytical» monitoring.
1.4. Monitoring violations of economic and social rights
Specific economic and social rights have, whatever the conditions under consideration, their own influence on the activity of human rights organisations and how they monitor the defence of relevant human rights. There was an extensive period, however, when human rights organisations did not concern themselves the defence of economic and social rights. Only recently, in fact, did a number of international human rights organisations, including Human Rights Watch and Amnesty International, begin work in this area.
The main factor that gave rise to this neglect, and is specific to economic and social rights, is the difficulty of developing a customary method of measuring violations of these rights. A methodology for monitoring human rights can only be effective when it is possible to recognise, with a degree of precision, the fact of a violation of rights, the individual or body that committed the violation, and the means for the defence and the renewal of those rights. It is sufficiently apparent, of course, that violations of economic and social rights regularly occur. An assertion, however, such as «people are starving- this is a violation of the right to sustenance» or «people are not receiving the medical assistance they require- this is a violation of the right to good health» is far from a theoretical analysis. This kind of crude statement ignores questions such as who is responsible for the poverty of the citizens, or, if the Government is working to realise the rights concerned, the means that will be required to renew those rights which have been violated.
Some human rights experts believe that the most effective way of defending human rights is not popular protest, technical support or national strategy but developing a methodology for monitoring rights. They argue that this methodology should focus on researching and revealing the deficiencies of specific kinds of government activity. [5] The establishment of this approach requires that attention is given to the work of various human rights organisations, and that an account is provided of particular aspects of state policy that may accidentally discriminate and or of other deficiencies in the state’s economic and social life.
2. Economic and social rights: the Ukrainian context
2.1. Ukraine’s obligations in the sphere of economic and social rights defence
Ukraine’s obligations with regard to the defence of economic and social rights should be viewed not only with regard to the International Covenant on Economic, Social and Cultural Rights but, also, other relevant international treaties. Ukraine has, in fact, signed and ratified six treaties, from a total of seven legally binding United Nations agreements in the human rights sphere: the International Covenant on Civil and Political Rights; the International Covenant on Social Economic and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention on the Rights of the Child; the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. With the exception of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment all of these conventions cover the defence of economic and social rights. Ukraine is not a signatory to the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. [6]
We need also to consider various agreements developed by the International Labour Organisation (ILO) which guarantee the right to a place of work and to join a union. Ukraine has ratified nearly 50 of the various ILO agreements, some of which include the fundamental principles of rights in the sphecation «Telekritika»: http://telekritika.kiev.ua/news/?id=18448.
[11] Ukrayinska Pravda Internet edition with reference to the source at the channel
[12] See the Internet website of „1+1» Channel: http://1plus1.net/about/news.phtml?637.
[13] Newspaper «Dzerkalo tyzhnia», http://zn.kiev.ua/nn/show/474/44736.
[14] „Telekritika« Internet website: http://telekritika.kiev.ua
[15] More information can be found on the Internet website: http://korpunkt.ru/razdel10_2_0.html.
[16] cf, the Internet website of „Telekritika«: http://telekritika.kiev.ua.
[17] cf. the Internet publication «Ukrayinska Pravda»: http://pravda.com.ua.
[18] According to the Mass Information Institute. At the Internetsite:http://imi.org.ua/?id=read&n=3612&yy=2004.
[19] For more information, see the Centre’s Internet site: http://cjes.ru/monitoring/view_monitoring.php?id=3729.
[20] http://cjes.ru/monitoring/view_monitoring.php?id=3817.
[21] http://cjes.ru/monitoring/view_monitoring.php?id=3899.
[22] http://cjes.ru/monitoring/view_monitoring.php?id=3922.
[23] http://cjes.ru/monitoring/view_monitoring.php?id=3923.