Ambassador Scheffer on rights in a written constitution

22 March 2013

The Scottish Government’s proposal to enshrine economic, social and cultural rights in a written constitution of an independent Scotland has raised concerns and provoked criticism. However, those economic, social and cultural rights are already incorporated in many constitutions across the world, and therefore the Scottish Government’s proposal is not particularly provocative, according to Ambassador David Scheffer, Professor of Law and Director of Centre for International Human Rights, Northwestern University School of Law.

The Constitutional Commission is pleased to republish part of Ambassador Scheffer’s article which considers the Scottish Government’s proposal for a written constitution. The article was originally published in January 2013 as an Adam Smith Research Foundation Working Paper, but the Constitutional Commission considers it deserves a wider coverage and republishes here with the author’s permission.

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The Scottish Government is well on the way to demonstrating its adherence to fundamental tenets of a modern constitutional democracy. The Scottish National Party introduced basic principles for a Constitution in 2002 and the Scottish Government elaborated on its desired methodology in February 2013.[i] There are several basic constitutional elements that Scottish law and European Union law address in one form or another, but not within a Scottish or, for that matter, United Kingdom constitutional framework.

In its totality, the constitution of Scotland must provide protection for the rights of individuals and of minority groups and protect them from arbitrary governmental and police action. Periodic free elections, of course, are a cornerstone of constitutional democracy. So too is guaranteeing the right of political dissent. People must have the right, free from the fear of arrest, to express their opposition to the government and its policies and actions. They must have the ability to communicate these views to others through such means as freedom of the press and assembly. In order to ensure rights for all peoples, the government should enact limits on the right of the police to arrest people and to hold them without public charges or a trial. Such rights and limitations already are well recognized in Scottish law.[ii]

The real challenge for constitution-drafting in Scotland is to envisage what might be required beyond what the Scottish people will naturally determine is reflective of and thus should be incorporated from existing rights under Scottish law and European Union law.

In January 2013, First Minister Alex Salmond articulated the need to consider, in the context of Scotland’s Constitution, “fundamental human concerns, the key economic, social and environmental needs of every citizen and the responsibilities of state and citizen towards each other.”[iii] He referenced the right to education, the rights of the homeless, a constitutional ban on the possession of nuclear weapons, and the use of Scottish armed forces and what constitutional safeguards should be established for the use of Scottish troops.[iv]

Although the First Minister’s proposal has provoked responses from some who view the proposed rights and duties as too constraining on the Scottish Government following independence,[v] they are not particularly provocative. From a comparative point of view, economic, social, environmental, and indeed security concerns are reflected in constitutions around the world in modern times. For example, environmental rights and duties provisions appear in many constitutions in addition to roadmaps for implementing such rights, as with the constitutions of India,[vi] Poland,[vii] Argentina,[viii] and Ghana.[ix] The South African Constitution guarantees everyone the “right to have access to adequate housing.”[x] It also provides the right to have access to health care services, sufficient food and water, and social security.[xi]

In India, the constitutional nod to “directive principles of state policy” (Part IV of the Indian Constitution) at first was interpreted as it reads, namely, “The provisions contained in this Part shall not be enforced by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.”[xii] Article 39 elaborates this concept by stating that, “The State shall, in particular, direct its policy towards securing” adequate means of livelihood, equal pay for equal work for both men and women, the health and strength of workers, both men and women, and that children are protected against exploitation and moral and material abandonment.[xiii] Article 41 of the Indian Constitution provides that, “The State shall, within the limits of its economic capacity and development [important qualifiers, no doubt], make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.”[xiv]

The Supreme Court of India, in an important line of cases[xv] has begun to transform some of these so-called “directive principles” into constitutionally protected rights and duties.[xvi] But the concept of India’s “directive principles” is one that should not be ignored in the drafting of the Scottish Constitution as they can provide a political bridge to the incorporation of these additional categories of rights and duties into a constitution.

Further, an independent Scotland’s presumed continued participation in the European Convention on Human Rights[xvii] and the International Covenant on Economic, Social, and Cultural Rights,[xviii] where a broad range of rights are well-known and increasingly established now, would provide added momentum and legitimacy to the proposals tabled by First Minister Salmond. Such concepts found in the International Covenant on Economic, Social and Cultural Rights as “progressive realization” and“appropriate steps” and “appropriate means” can be applied to national constitutional law as well, so that the skeptical view fearful of automaticity of state obligations for such rights and duties is addressed realistically within the constitutional text.

It likely will not be possible to finalize the Scottish Constitution prior to independence, as one would assume a constitutional convention for that purpose would be convened immediately after independence, as has First Minister Salmond has suggested.[xix] But Scotland would want to entice diplomatic recognition as quickly as possible upon achieving independence. So the sooner the text of a plausible concept for the draft constitution is tabled in anticipation of the constitutional convention, and that tabling is well communicated to foreign governments, they may feel more comfortable recognizing the newly independent Scotland as soon as possible upon independence. Of course, some foreign governments may not care, but others may care or use the absence of a constitution as the basis, however credible, for delaying recognition, perhaps in deference to their long-held loyalty to London. Thus the prospect for constitutional democracy in Scotland should be a powerful tool in the nation’s recognition strategy.

Courtesy of Ambassador David J. Scheffer.

 


[i] Scottish National Party, A Constitution for a Free Scotland (Sept. 2002). Text and principals are available with the Constitutional Commission. Previous Draft Constitutions for an Independent Scotland, CONSTITUTIONALCOMMISSON.ORG, www.constitutionalcommission.org/resources.php (last visited Feb. 10, 2013). See also SNP takes aim at the Monarchy, BBC NEWS WORLD EDITION (Sept. 16 2002, 16:22 GMT), http://news.bbc.co.uk/2/hi/uk_news/scotland/2262059.stm. See also The Scottish Government, Scotland’s Future: from Referendum to Independence and a Written Constitution (Feb. 2013).

[ii] See e.g. MICHAEL MESTON, DAVID SELLAR & LORD COOPER, THE SCOTTISH LEGAL TRADITION (Scott Styles ed., 1991) (discussing numerous protections and limitations that contribute to the Scottish legal tradition); Lord Reed & Jim Murdoch, A GUIDE TO HUMAN RIGHTS LAW IN SCOTLAND (2d ed. 2008), 1–73 (discussing the combined affect of the European Convention on Human Rights, The Scotland Act of 1998, The Human Rights Act of 1998, and Scottish case law on the state of human right law in Scotland). In his January 2013 speech to the foreign press, First Minister Salmond acknowledged Scottish legal tradition and identified future objectives. See also Salmond, Speech to the Foreign Press Association, First Minister Alex Salmond, Speech to the Foreign Press Association (Jan. 16, 2013) (noting that, “For centuries, Scotland has had a distinct constitutional tradition. . .”).

[iii] Salmond, Speech to the Foreign Press Association.

[iv] Id.

[v] See e.g. Severin Carrell, Alex Salmond entices left and lawyers with promise of new rights in a written constitution, THE GUARDIAN, SCOTTISH INDEPENDENCE BLOG (Jan. 17, 2013), http://www.guardian.co.uk/politics/scottish-independence-blog/2013/jan/17/scottish-constitutionalexsalmond (noting critiques from legal observers and that “[s]ome of Salmond’s other political opponents reacted with derision”); Magnus Gardham, Salmond unveils his vision for rights of Scots, Herald Scotland (Jan. 17, 2013), http://www.heraldscotland.com/politics/referendum-news/salmond-unveils-his-vision-ofrights-for-scots.19937300 (discussing commentary from political opponents).

[vi] INDIA CONST. pt. IV, art. 48A, available at http://www.indiankanoon.org/doc/237570/, and at http://indiacode.nic.in/coiweb/coifiles/part.htm (“The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.”). See generally Vijayashri Sripati, Toward Fifty Years of Constitutionalism and Fundamental Rights in India: Looking Back to See Ahead (1950–2000) 14 AM. U. INT’L L. REV. 2, 413–495 (1998).

[vii] POL. CONST. art. 74, available at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm. Article 47 provides the following: “1) Public authorities shall pursue policies ensuring the ecological security of current and future generations. 2) Protection of the environment shall be the duty of public authorities. 3) Everyone shall have the right to be informed of the quality of the environment and its protection. 4) Public authorities shall support the activities of citizens to protect and improve the quality of the environment.” Id.

[viii] Sec. 41, CONSTITUCION NACIÓNAL [CONST. NAC.] (Arg.), available at http://www.senado.gov.ar/web/interes/constitucion/english.php. Section 41 provides the following: (1) All inhabitants are entitled to the right to a healthy and balanced environment fit for human development in order that productive activities shall meet present needs without endangering those of future generations; and shall have the duty to preserve it. As a first priority, environmental damage shall bring about the obligation to repair it according to law. (2) The authorities shall provide for the protection of this right, the rational use of natural resources, the preservation of the natural and cultural heritage and of the biological diversity, and shall also provide for environmental information and education. (3) The Nation shall regulate the minimum protection standards, and the provinces those necessary to reinforce them, without altering their local jurisdictions. (4) The entry into the national territory of present or potential dangerous wastes, and of radioactive ones, is forbidden.

[ix] GHANA CONST. (1992), art. 36, § 9, available at http://www.judicial.gov.gh/constitution/chapter/chap_6.htm. Article 36, Section 9 requires the following: The State shall take appropriate measures needed to protect and safeguard the national environment for posterity; and shall seek cooperation with other states and bodies for purposes of protecting the wider international environment for mankind. Id.

[x] HENRY J. STEINER, PHILIP ALSTON, RYAN GOODMAN, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 328 (3d ed. 2008) (citing Section 26 of the 1996 Constitution).

[xi] See id. at 327–329 (3d ed. 2008).

[xiii] Id.

[xv] See Alston et al, supra note x at 323–27, (discussing Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 18 [right to life and to livelihood], Petition (Civil) No. 196/2001 People’s Union for Civil Liberties v. Union of India & Ors [addressing petitioners’ “right to life and the right of food of those who can ill-afford to provide to their families two meals day “], State Of Karnataka vs Appa Balu Ingale et al., A.I.R. 1993 S.C. 1126,[addressing a right to water from discrimination], Aquaculture case: S. Jagannath v. Union of India & Ors, A.I.R. 1996 S.C. 1592 [asserting a right to livelihood of traditional fishing communities], and Samatha vs State of A.P. and Ors., A.I.R. 1997 S.C. 3297 [establishing “the right to livelihood of scheduled tribes against the acquisition of land by a private company,” see Alston et al, supra note x at 325]).

[xvi] Alston et al, supra note x at 321–27.

[xvii] [European] Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953), available at http://conventions.coe.int/Treaty/Commun/ListeTraites.asp?CM=8&CL=ENG.

[xviii] International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 3, (entered into force Jan. 3, 1976), available at http://www2.ohchr.org/english/law/cescr.htm.

[xix] SCOTLAND’S FUTURE, supra note i.

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