THE RIGHT TO AN ADEQUATE STANDARD OF LIVING

The right to an adequate standard of living requires, at a minimum, that everyone shall enjoy the necessary subsistence rights: adequate food and nutrition, clothing, housing and the necessary conditions of care when required. The essential point is that everyone shall be able, without shame and without unreasonable obstacles, to be a full participant in ordinary, everyday interaction with other people. Thus, people should be able to enjoy their basic needs in conditions of dignity. No one should have to live in conditions whereby the only way to satisfy their needs is by degrading themselves or depriving themselves of their basic freedoms, such as through begging, prostitution or forced labour.

In purely material terms, an adequate standard of living implies living above the poverty line of the society concerned, which according to the World Bank includes two elements: ‘The expenditure necessary to buy a minimum standard of nutrition and other basic necessities and a further amount that varies from country to country, reflecting the cost of participating in the everyday life of society.’ ICESCR General Comment 12 finds that what is ‘adequate’ ‘is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions’.

Even though economic, social and cultural rights instruments establish the principle of progressive realisation, this principle does not exclude immediate obligations (see textbox on ‘progressive realisation’); steps towards this goal must be taken immediately. In addition, the prohibition of discrimination of any kind with regard to access to adequate food, clothing and housing, on grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or other status, with the purpose or effect of nullifying or impairing the equal enjoyment or exercise of this right, is an immediate obligation for states parties to major human rights treaties.

A. Standards

According to Article 25(1) UDHR, ‘everyone has the right to a standard of living adequate for the health and well-being of himself and his family’. This provision sets out some of the elements of this right: a) food; b) clothing; c) housing; d) medical care; and e) necessary social services.

Under Article 11 ICESCR, everyone has the right to ‘an adequate standard of living for himself and his family’. The Committee on Economic, Social and Cultural Rights has issued several General Comments explaining the components of this right including the right to adequate housing (General Comments 4 and 7), the right to food (General Comment 12), the right to water (General Comment 15) as well as the right to social security (General Comment 19). Through these General Comments, the Committee elaborates on which criteria are to be met to fulfil the rights to housing, food and water and provides the single most comprehensive interpretation of these rights under international law (a more detailed discussion of each of these rights follows below).

The right to an adequate standard of living is included in several other human rights treaties. Under Article 27 CRC, ‘States Parties recognise the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development’. Under Article 14 CEDAW, ‘States Parties shall take all appropriate measures to eliminate discrimination against women in rural areas [...] to ensure [...] the right [...] to enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply, transport and communications [....]’. The CERD recognises the right of everyone, without distinction as to race, colour, or national or ethnic origin, to enjoy, inter alia, the right to housing, and the right to social security and social services. Article 28 CRPD sets out the right to an adequate standard of living and social protection.

In addition, some instruments aimed at the protection of people under specific circumstances also contain provisions relating to an adequate standard of living. This is the case, for example, of the Convention Relating to the Status of Refugees and the Geneva Conventions. The Convention Relating to the Status of Refugees provides for the right to housing (Article 21), public relief and assistance (Article 23) and social security for refugees (Article 23). The right to an adequate standard of living is also envisaged in Additional Protocol I to the Geneva Conventions Relating to the Protection of Victims of International Armed Conflicts, which declares in Article 54(1) that starvation of civilians as a method of warfare is prohibited. Article 54(2) prohibits attack, destruction, removal, or rendering useless objects indispensable to the survival of the civilian population, such as foodstuffs, water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse party, whether in order to starve out civilians, to cause them to move away, or any other motive. Protocol II on Non- International Armed Conflicts has a similar provision in Article 14. Although these provisions are not formulated as human rights per se, they are aimed at ensuring that persons or groups that do not or no longer take part in hostilities are not denied the enjoyments of these rights.

At the Inter-American level, although the ACHR deals primarily with civil and political rights, it includes in Article 26 a general provision on economic, social and cultural rights. The ACHR alludes indirectly to the right to an adequate standard of living when it refers in Article 26 to the commitment of states parties to take measures to guarantee ‘the full realisation of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter’. According to Article 26 ‘states parties undertake to adopt measures, both internally and through international co-operation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realisation’ of these rights. The principle of progressive realisation is not unique to this Convention; it is also contemplated, for example, in Article 1 Protocol of San Salvador and Article 2(1) ICESCR. While compliance with the principle of ‘progressive realisation’ depends on the availability of resources, this provision also prescribes particular conduct that is compulsory for all states parties, regardless of their level of development. In this regard, Article 26 ACHR imposes the obligation to continuously improve conditions and the prohibition of taking deliberately retrogressive measures. This interpretation finds support in the recent jurisprudence of the Inter-American Commission on Human Rights (e.g., Miranda Cortez et al. v. El Salvador (Case 11.670)). Additionally, the Protocol of San Salvador deals in Article 12(1) with the right to an adequate standard of living. Article 12(1) provides that ‘everyone has the right to adequate nutrition which guarantees the possibility of enjoying the highest level of physical, emotional and intellectual development’.

At the European level, in Article 4(1) European Social Charter, the contracting parties undertake ‘to recognise the right of workers to remuneration such as will give them and their families a decent standard of living’. Moreover, the European Social Charter (Revised) includes Article 31 on the right to housing. Protection of the right to housing is also to be found in Articles 16 and 19(4) of the European Social Charter, and in Article 4 of the Additional Protocol to the Charter.

At the African level, the ACHPR does not expressly guarantee the right to an adequate standard of living, housing or food. However, these rights are not outside the scope of interpretative possibilities open to the African supervisory bodies and would be well-covered by a combined reading of Articles 5 and 14-18 ACHPR. The African Commission confirmed this in The Social and Economic Rights Action Centre et al. v. Nigeria, Communication 155/96 where it found violations of the rights to housing and food, neither of which are expressly recognised by the Charter. In an innovative interpretation, the Commission held that the right to housing or shelter is implicitly entrenched in the totality of the right to enjoy the best attainable standard of mental and physical health, the right to property and the protection of the family. Likewise, the right to food was implied in the rights to life, health and to economic, social and cultural development.

States have also committed to the realisation of the right to an adequate standard of living in several international instruments, such as the Declaration on the Right to Development (Article 8); the Universal Declaration on the Eradication of Hunger and Malnutrition (Article 1); the Rome Declaration of the World Food Summit; Agenda 21 (e.g., Chapters 3 and 7); the Habitat Agenda (e.g., paragraphs 36 and 116); the Declaration of Alma-Ata on Primary Health Care; the Platform of Action of the Fourth World Conference on Women; the Declaration on the Protection of Women and Children in Emergency and Armed Conflict; the Standard Minimum Rules for the Treatment of Prisoners; the Declaration on the Rights of Mentally Retarded Persons; the Declaration on the Rights of Disabled Persons; and the UN Declaration on the Rights of Indigenous Peoples.

Within the framework of the UN specialised agencies, the rights related to the right to an adequate standard of living have been dealt by the International Labour Organisation (ILO), the Food and Agricultural Organisation of the United Nations (FAO) and the World Health Organisation (WHO). Under the framework of these organisations, several instruments aimed at the protection of an adequate standard of living have been adopted, such as ILO 117 on Social Policy and ILO 169 concerning Indigenous and Tribal Peoples. The UN Guiding Principles on internally displaced persons requires that competent authorities ensure safe access to a) essential foods and potable water; b) basic shelter and housing; c) appropriate clothing; and d) essential medical services and sanitation.

The UN Committee on Economic, Social and Cultural Rights is the body which has provided the most comprehensive examination of the right to adequate standard of living. The following analysis will therefore follow the Committee’s General Comments 4, 12 and 15.