Economic,Social and Cultural Rights in New Zealand
A Brief History of Economic, Social and Cultural Rights in New Zealand.
Human Rights Council Inc.
Although New Zealand had a major impact on the Universal Declaration of Human Rights it was to take 56 years before any significant recognition was given to the economic, social and cultural rights it had so forcefully promoted at the ‘Great Debate’ in 1948 and antagonising its Western allies in the process.
The Universal Declaration of Human Rights is made up of two sets of rights – civil and political rights (freedom and democracy) and economic, social and cultural rights (social justice) however, typically the West only defines human rights as civil and political rights or what are called traditional civil liberties and democratic rights.
Since 1948 economic, social and cultural rights have been marginalized at the domestic level until recently with the introduction of the Human Rights Commission’s New Zealand Plan of Action for Human Rights in February 2005. New Zealand is only one of 14 countries to have prepared an action plan. National action plans were initiated by the Vienna Declaration and Program of Action (Recommendation 71) in 1993. Economic, social and cultural rights are now rising on the global agenda. Mary Robinson, former President of Ireland and former United Nations High Commissioner for Human Rights, and Paul Hunt, from the University of Waikato and University of Essex and United Nations Special Rapporteur on the right to health wrote jointly on May 11, 2006:
“A quiet revolution is taking place within international human rights. The traditional focus on civil and political rights – the prohibition of torture, the right to a fair trial, freedom of speech – has been broadened to include economic, social and cultural rights, such as the human rights to education, food, shelter, and the highest attainable standard of health” (New Zealand Herald, A13, May 11, 2006).
The Human Rights Commission which is required under Section 5(a) of the Human Rights Act 1993 to educate New Zealanders in these rights admit that until the action plan successive governments have refused to fund their education. Sir Geoffrey Palmer states that States have a legal duty to educate their people in human rights under Principle 2 of the United Nations Charter (Human Rights and the New Zealand Government’s Treaty Obligations, Address to the International Law Association, Auckland, 30 April 1998). But overwhelmingly States have been reluctant to educate their people in these rights (see my article on the internet Psychiatric Survivors on the Beach by Anthony Ravlich) and as a consequence only very few States have included these rights in domestic law. Mario Gomaz states: “…while states both in the North and South, have incorporated civil and political rights in their constitutions, few states have similarly incorporated economic, social and cultural rights either in their constitutions or domestic legislation. Economic, social and cultural rights have remained at the level of non-justiciable principles of state policy” (Mario Gomez, Social Economic Rights and Human Rights Commissions, Human Rights Quarterly 17 (1995), pp155-169). Some of those countries which have included economic, social and cultural rights as justiciable rights are South Africa, Finland and Norway.
If economic, social and cultural rights had been given the same status as traditional civil liberties and democratic rights as required, at least in terms of rhetoric, by the United Nations (Vienna Declaration 1993, Limberg Principles 1987, Maastricht Treaty 1992) it seems very likely that New Zealand would be a far more egalitarian country with much greater democratic participation.
While this equal status is not reflected in domestic law it is reflected at the level of international law. Of the 188 member states of the United Nations 144 have ratified the International Covenant on Civil and Political Rights while 142 have ratified the International Covenant on Economic, Social and Cultural Rights (Inquiry into the Role of Human Rights in Foreign Policy 2000). A notable omission is the United States which is the only industrialized country which has not ratified the covenant on economic, social and cultural rights. Noam Chomsky states that economic, social and cultural rights are “largely dismissed in the West” and in the United States the “contempt for the socio-economic provisions of the Declaration are …..deeply ingrained” (The United States and the Challenge of Relativity 1998, pp 32-39).
New Zealand ratified both covenants under international law in 1978 but only bought civil and political rights into domestic law in the form of the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990.
In 1948 New Zealand led the world in promoting
the equal status of civil and political rights and economic,
social and political rights a position which the United
Nations, at least in terms of rhetoric, now consistently
adopts . The New Zealand delegation to the ‘Great
Debate’ at the United Nations was led by the New Zealand
Prime Minister, Peter Fraser, and put the New Zealand
position. New Zealand supported not only civil and political
rights i.e. traditional Western liberties but also to the
consternation of its Western allies also supported economic,
social and cultural rights. Professor Gordon Lauren of
Montana University, USA, who came to New Zealand in 1998 to
research New Zealand’s involvement in 1948 stated:
“Prime Minister Peter Fraser and his colleagues Walter
Nash and Carl Berendsen came to be convinced that the
aftermath of the Second World War offered a unique
opportunity to advance the cause of human
“Together they pressed for traditional liberal values such as life, liberty, and freedom of speech in the form of civil and political rights favoured by the West. At the same time, and to the frustration of a number of their Western colleagues, they successfully supported the inclusion of economic and social rights favoured by the East [East European communist countries].
“In launching this revolution, New Zealand was far out in front of other nations, though its role is not generally known and certainly not appreciated” (Professor Paul Lauren, Herald 10/12/98).
After this significant contribution economic,
social and cultural rights were rarely heard of again in New
Zealand until the debate on the bill of rights.
In 1986 the Justice and Law Reform Select Committee considered the White Paper’s proposal for a bill of rights. The Committee’s final report suggested that a bill of rights should include key economic, social and cultural rights. These were the rights to an adequate standard of living, to work, education, property and participation in the cultural life of the country…. This recommendation was, however, rejected in the Parliamentary debate on the Bill (Margaret Bedggood, Constitutional Rights and Responsibilities in Aotearoa/New Zealand, 1998, pp345-346).
In March 1991 economic, social and cultural rights received nation-wide publicity when I threw a brick through the Christchurch Central’s Employment Service window to attract attention to pending severe benefit cuts which I maintained violated international law i.e. the right to an adequate standard of living in the covenant on economic, social and cultural rights. My action received the support of Scott Davidson, now Professor of International Law at Canterbury University, who stated in the Christchurch Press that the government’s proposed action was the equivalent to being an ‘international delinquent’. Also the Human Rights Commission in their submission to the Finance Bill warned the government that the benefit cuts could be in breach of international law and advised them against such action. The Labour Party had also set up a select committee with the MP for Christchurch Central, Lianne Dalziel, as chairperson to look into the benefit cuts. However, the National Government, with Jenny Shipley as Prime Minister, ignored their views and the cuts went ahead in April 1991. Following the benefit cuts governments were to introduce market rentals for Housing New Zealand homes in 1992 ( income-related rentals were later implemented in December 2000), and also in 1992 there was the introduction of student loans. However if economic, social and cultural rights were included in law social justice could have been protected by the courts in the same way as are traditional liberties and democratic rights ( governments do not like to be seen violating human rights). For example, Paul Hunt suggests the use of negative judicial review. He states: “In April 1991, the New Zealand government introduced cuts in welfare. According to the Human Rights Commission, the reduced rates brought some beneficiaries below the Treasury’s own “income adequacy” level. If New Zealand law provided that individuals have a right to an adequate standard of living, why could a court not declare that the cuts were unlawful because they violate this right?” (Paul Hunt, Reclaiming Social Rights, p68). Since this incident I have not been able to get full time employment in the mainstream employment sector and am virtually persona non grata in New Zealand.
In a survey I conducted of MPs in 1997 I proposed that economic, social and cultural rights be included as principles (not law) in our Bill of Rights. There were 83 replies out of 119 MPs: only 22 were for the proposal, 14 were against and the rest non-committal.
In 1997 former Prime Minister David Lange, describing why economic, social and cultural rights principles were not included in the New Zealand Bill of Rights 1990 stated: “ The reason why economic, social and cultural rights aren’t included in the bill of rights is that people will start claiming them. That would have been too much for Geoffrey [i.e. Geoffrey Palmer]. I can’t see any way of amending the bill other than by using the political process to create a climate for change, which isn’t an encouraging prospect, given the temper of the present parliament and the relative strength of the parties. What you are talking about, as you know, would need a fundamental alteration in the thinking of our political establishment. It may come in time, but it won’t come easily, which means I can’t offer you any answer other than the long hard grind of political activism” (Personal letter, copy available, dated 4 March 1997).
Liberal democracies such as the United States, Australia, Britain, Canada have been major obstacles to the progress of economic, social and cultural rights which are concerned with social justice. At an international level it took 55 years for the United Nations (with New Zealand attending the working groups) to consider drafting a complaints procedure (Optional Protocol) for the International Covenant on Economic, Social and Cultural Rights which allows those suffering social injustices to make complaints to the United Nations. The above liberal democracies have been the major opponents of drafting. New Zealand has taken a neutral stance against immediate drafting but happy to continue with discussions. New Zealand at the international level (United Nations, Asia Pacific Forum), in line with the United Nations position, promotes the equal status of civil and political rights and economic, social and cultural rights (the view that ‘freedom’ and ‘food’ are of equal importance) but says nothing domestically to the people. Also the liberal press in New Zealand refuse to report anything on these proceedings (see my articles below). Also open-ended working groups (also attended by New Zealand) are presently meeting to discuss the Declaration on the Right to Development (1988) and how policies should conform to human rights so all people can develop their skills, abilities and talents . What is surprising about the development declaration is that it is the first international instrument to recognise the equal status of civil and political rights and economic, social and cultural rights. This comes 36 years after the universal declaration was divided, at the West’s insistence, into two covenants thereby separating the two sets of rights (Henry Shue, Basic Rights, 1980, pp158-159) thereby enabling the West, and New Zealand, to define human rights only in terms of civil and political rights.
There are few NGOs concerned with economic, social and cultural rights in New Zealand. The only NGOs I know of are the Water Pressure Group (the right to water), Pax Christi (the right to housing) and the Human Rights Council Inc., (human rights with a particular emphasis on economic, social and cultural rights). In 2002 Anthony van den Heuvel in accordance with the ideas of the Human Rights Council Inc. set up the Human Rights Party and stood as a candidate. In the following election two members of the council stood as candidates. The political platform was the New Zealand Plan of Action for Human Rights with an aim to have economic, social and cultural rights included as law in New Zealand. The setting up of this party was not to seek power but to show that people control rather than, what I believe to be, the present liberal (bureaucratic and business) control of the human rights agenda is possible (see my article below). The growth of such NGOs have been taking place world-wide.
Robinson and Hunt state: “…the most far reaching change has been within civil society. Today, in every region of the world, including the United States, civil society groups are organizing around economic, social and cultural rights. They have understood that a broad spectrum of human rights can empower individuals and humanize the forces of globalization”(A13, New Zealand Herald, May 11, 2006).