A primer on economic, social and cultural rights
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1. Reclaiming economic, social and cultural rights
Economic, social and cultural rights were marginalized for large parts of the 20th century, despite the recognition of the indivisibility of rights in the Universal Declaration of Human Rights. Human rights were not immune to the polarization of the world during the Cold War. On one side the achievement of economic, social and cultural rights was presented as requiring a political commitment to socialism. On the other, civil and political rights were portrayed as a luxury that could only be afforded once a certain level of economic development had been achieved.
Reclaiming economic, social and cultural rights as human rights has been achieved largely through the action of a large number of social activists around the world. Their messages gained greater resonance during the 1980s as global politics began to thaw and as concern grew at the collapse in social conditions and the prioritization of economic development over human dignity.
The origins of economic, social and cultural rights
Although economic, social and cultural rights are often described as "new" or "second generation" rights, they have in fact been recognized for centuries. Both the French and American national rights declarations in the late 18th century included concepts such as "the pursuit of happiness" and "égalité et fraternité" (equality and brotherhood), and the rights to form trade unions, to collective bargaining and to safe labour conditions. The first global human rights institution, the International Labour Organization (ILO), has protected workers' rights and a broader compass of human rights since 1919. Its Constitution recognizes that "universal and lasting peace can be established only if it is based upon social justice".13
The Universal Declaration of Human Rights14 reiterated that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world".15 It went on to place a number of economic, social and cultural rights side by side with civil and political rights.
These include:
- the right to work, to just and fair conditions of employment, and to protection against unemployment
- the right to form and join trade unions
- the right to a standard of living adequate for health and well-being, including food, clothing, housing, medical care and social services, as well as security in the event of loss of livelihood, whether because of unemployment, sickness, disability, old age or any other reason
- the right to education, which shall be free and compulsory in its "elementary and fundamental" stages
- the right to participate in cultural and scientific life
From 1948 to 1966 the international community struggled to agree an international covenant on human rights to turn this declaration into binding international law. Ultimately, the intense ideological cleavages of the time led to the adoption of two separate covenants, one on economic, social and cultural rights and the other on civil and political rights. Differing approaches were taken in each. While states are required to "respect and ensure" civil and political rights, they are required only to "achieve progressively the full realization of" economic, social and cultural rights. Nevertheless, as shown below, both contain immediate obligations and obligations to be achieved progressively.
The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, enshrines the economic, social and cultural rights contained in the Universal Declaration of Human Rights in more developed and legally binding form.16 At the time of writing, 151 states had ratified the Covenant.17
The Covenant was, and remains, the most complete international standard on economic, social and cultural rights. However, international standards developed at around the same time in specialized agencies, such as the ILO and the UN Educational, Scientific and Cultural Organization (UNESCO), detailed specific human rights within their mandates. Also, since 1965 the international community has developed standards on rights relating to specific groups within society, for example, racial and ethnic groups, women, indigenous peoples and children. These standards contain relevant provisions on the application of economic, social and cultural rights to these groups. Regional human rights treaties in Africa, the Americas and Europe also provide protection for certain economic, social and cultural rights, as does a revised Arab Charter on Human Rights.
After the Cold War
Recognition and understanding of economic, social and cultural rights has strengthened in the last two decades in response to grassroots and broader civil society action. Social movements around the world increasingly mobilized from the mid-1980s against the stark social impact of rapid economic reform programmes, large-scale infrastructure projects, corruption and the unsustainable debt burden. Structural Adjustment Programmes promoted by international financial institutions, such as the World Bank, encouraged aid recipient countries to reduce social spending in sectors such as health and education and to devote a significant portion of their budget to managing their international debt. Countries instituted "cost-sharing" mechanisms that required people to pay for social services (often regardless of their ability to pay), resulting in collapses in primary school enrolment and obstructing access to health care. Claims opposing these policies were articulated in terms of social justice and, ultimately, human rights.
In the 1960s and 70s, certain civil and political rights violations quickly caught the imagination of politically conscious professionals – who were among those most affected. Similarly, the denial of economic, social and cultural rights required articulation by those most affected – by definition those with little access to political platforms – before being commonly understood as a human rights issue. During the late 1980s and the 1990s local and national activists were joined by international non-governmental organizations (NGOs) devoted to defending economic, social and cultural rights. An emerging movement culminated in global social forums and an international network where civil society organizations, committed to an array of social justice concerns, gathered to share experiences and build alliances.
Reclaiming rights as entitlements through public action gives legitimacy to calls for social justice. It stresses the accountability of a range of actors and duty-bearers, and has the power to mobilize global activism. Where the marginalized and dispossessed cannot look to their own government to respect, protect and fulfil these entitlements, duties of international cooperation and assistance demand action from those states that are in a position to assist.
The late 1980s also saw the establishment by the UN of an independent committee to monitor states' compliance with the International Covenant on Economic, Social and Cultural Rights, some 10 years later than the equivalent committee for the International Covenant on Civil and Political Rights. The Committee on Economic, Social and Cultural Rights analyses states' reports, makes recommendations for change, and issues General Comments on the scope of rights and obligations under the treaty.18 General Comments aid international understanding of the nature of these rights and the obligations of states that have agreed to be bound by the Covenant.
Recognition of economic, social and cultural rights is not limited to grassroots campaigners, human rights defenders or UN bodies. Nobel Prize winning economist Amartya Sen, for example, defines famine in terms of a lack of entitlements. He considers that the right of access to food, and to the productive resources (such as land) that allow people to feed themselves, is essential to combating famine; food may be available, or even abundant, but often is still not accessible to all.19
Economic, social and cultural rights are now widely recognized as enforceable in the courts (justiciable) under both national and international law. In public interest litigation before the Supreme Court of India, the right to life has been broadly interpreted to cover rights including those to education, health and freedom from the harmful effects of environmental degradation. Likewise, the Constitutional Court of South Africa has upheld economic, social and cultural rights included in the 1996 Constitution. It has developed an understanding of the state's duty to act "reasonably" to progressively ensure access to essential medicines and adequate housing, in particular through prioritizing the most vulnerable people.
At the regional level, the African Commission on Human and Peoples' Rights has found Nigeria in violation of several rights, including to health, housing and life, through failing to take sufficient measures to protect the Ogoni people from adverse impacts of oil exploration in the Niger Delta.20 The European Court of Human Rights has also increasingly recognized the interdependence of human rights. Where the state failed to protect the population from the health impact of a polluting business, the Court found this to be in violation of their right to private, family life and the home.21
In addition, new mechanisms have been developed to allow victims of violations to enforce their economic, social and cultural rights. Both the Americas and Europe have adopted complaints procedures.22 The UN Commission on Human Rights is also considering an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, which would allow an international remedy for victims who are denied remedies at the national level.23 The Commission has also appointed a series of independent experts as Special Rapporteurs on the rights to education, adequate housing, adequate food and health, who report each year on the realization of these rights and carry out country visits.
Current challenges
Despite the advances, great challenges remain. Some influential states continue to be sceptical about the validity of individual claims to recognition and defence of these human rights. The USA, for example, has stated that,
"at best, economic, social and cultural rights are goals that can only be achieved progressively, not guarantees. Therefore, while access to food, health services and quality education are the top of any list of development goals, to speak of them as rights turns the citizens of developing countries into objects of development rather than subjects in control of their own destiny."24
Consequently the USA has not ratified significant economic, social and cultural rights standards, and is opposed to developing international mechanisms to enforce these rights, including the Optional Protocol.
The view that economic, social and cultural rights are mere aspirations of development draws attention away from violations of those rights in both poor and wealthy states. A key challenge for human rights activists is to reclaim the universality of rights by spotlighting and campaigning against abuses of economic, social and cultural rights around the world.
Yet the importance of integrating human rights into development cooperation is now recognized by UN agencies and various donor governments. The UN Development Programme (UNDP), in its Human Development Report, for example, has stated:
"A decent standard of living, adequate nutrition, health care and other social and economic achievements are not just development goals. They are human rights inherent in human freedom and dignity. But these rights do not mean an entitlement to a handout. They are claims to a set of social arrangements – norms, institutions, laws and enabling economic environment – that can best secure the enjoyment of these rights. It is thus the obligation of governments and others to implement policies to put these arrangements in place."26
However, implementation of the rights-based approach to development has been uneven at best.27 Also, some UN agencies – including the World Bank Group and the International Monetary Fund – have not integrated this rights-based approach, even in areas where their work clearly has direct human rights implications.28
In addition to international development, the processes associated with economic globalization – the integration of the global economy, trade liberalization and the trend towards privatization of core public services – have brought new challenges to defending economic, social and cultural rights. Public service privatization is increasingly the norm, for example, and includes services essential for ensuring economic, social and cultural rights. Encouraging states to live up to international obligations to ensure that privatization does not negatively affect access to services such as water, health care and education is one of the priorities of campaigners for economic and social justice. Human rights activists bring an independent rights-based critique to such campaigns by highlighting the result of deregulation on the realization of human rights and compliance with the state's obligations under international law.
While trade liberalization may offer greater opportunities for access to previously closed markets for producers from developing countries, trade agreements often safeguard the interests of wealthy states, and their businesses, at the expense of people in developing countries. Human rights activists have increasingly voiced concern at the impact of international, regional and bilateral free trade agreements on the realization of human rights, particularly as regards access to essential medicines and respect for labour rights.29
The great advances in understanding and defence of economic, social and cultural rights, over the past two decades in particular, continue to be threatened by scepticism and denial. Self-interest is still prominent, and undermines international obligations to fulfil human rights. In response to global opportunities, as well as global threats, human rights and social justice activists have increasingly "globalized" in international partnerships to defend the rights of the marginalized.
Remaining scepticism about economic, social and cultural rights as full and legitimate human rights is based on the perception that their scope and content is unclear and that (unlike civil and political rights) it is often not possible to identify a clear violation, a violator and a remedy. The work done over the last two decades has to a great extent laid these misperceptions to rest.
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Endnotes
13 Preamble to the Constitution of the International Labour Organization, 1919, http://www.ilo.org/public/english/about/iloconst.htm#pre
14 The Universal Declaration of Human Rights (UDHR) was inspired by President F.D. Roosevelt's "four freedoms" speech to the US Congress on 6 January 1941; Eleanor Roosevelt and French diplomat René Cassin took lead roles in its drafting.
15 Preamble of the UDHR.
16 International Covenant on Economic, Social and Cultural Rights (ICESCR), http://www.unhchr.ch/html/menu3/b/a_cescr.htm
17 Office of the UN High Commissioner for Human Rights (OHCHR), www.ohchr.org. 154 states have ratified the International Covenant on Civil and Political Rights (ICCPR).
18 General Comments are authoritative, although not legally binding, interpretations of obligations under the treaty on the basis of the Committee's understanding of state practice, and can be found at http://www.un.org/search/ohchr_e.htm
19 Drèze, J. and Sen, A., Hunger and Public Action, Clarendon Press, Oxford, 1989.
20 African Commission on Human and Peoples' Rights, Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, Communication No. 155/96, October 2001.
21 Guerra and Others v Italy, European Court of Human Rights, 116/1996/735/932.
22 Additional Protocol to the American Convention on Human Rights (San Salvador Protocol), 1989, which entered into force in 1999; Revised European Social Charter, 1996.
23 Open-ended working group of the Commission on Human Rights to consider options regarding the elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, http://www.ohchr.org/english/issues/escr/group.htm
24 Comments submitted by the USA, report of the Open-ended Working Group on the right to development, UN Doc. E/CN.4/2001/26, cited in Tomaševski, K., "Unasked questions about economic, social and cultural rights from the experience of the Special Rapporteur on the right to education (1998-2004)", Human Rights Quarterly 27 (2005) 713.
25 The CEJIL website is at: www.cejil.org
26 UNDP, Human Development Report, 2000, p. 73. See also, "UN Common Understanding of a Human Rights-based Approach to Development Cooperation" cited in UNDP, Human Rights in the UNDP, Practice Note, April 2005, p. 16.
27 Alston, P., "A Human Rights Perspective on the Millennium Development Goals." Paper prepared as a contribution to the work of the UN Millennium Project Task Force on Poverty and Economic Development, 2004.
28 See World Bank and IMF Development Committee, Global Monitoring Report 2004: Policies and Actions for Achieving the MDGs and Related Outcomes, Washington, DC, 2004.
29 See, for example, the Global Call to Action against Poverty, at www.whiteband.org; Amnesty International, Guatemala: the Impact of the Free Trade Agreement on human rights should be assessed by Congress (AI Index: AMR 34/010/2005) and Memorandum to the Government of Guatemala (AI Index: AMR 34/014/2005).
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