A primer on economic, social and cultural rights

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3. Obligations under international law


International standards on economic, social and cultural rights, although universally applicable, take into account the differing resources available to each state. They allow for the fact that full realization of these rights can only be achieved progressively over time, where sufficient human, technical and economic resources are available, including through international cooperation and assistance, such as development aid.

Duties to respect, protect and fulfill rights

Economic, social and cultural rights have often been seen as primarily "positive" obligations on states and derided as a "wish list".70 In fact, being the "provider of last resort"71 (stepping in where individuals and communities are otherwise unable to realize their rights) is only one element of the state’s obligations.

State obligations to realize all human rights are of three types:

The obligation to respect human rights requires states to refrain from interfering directly or indirectly with people’s enjoyment of human rights.73 This is an immediate obligation. It includes respecting efforts people themselves make to realize their rights. Governments must not torture, unduly inhibit the right to strike, arbitrarily close private schools teaching in minority languages, or carry out forced evictions without due process of law or providing alternative accommodation, for example.

Under the obligation to protect human rights, states must prevent, investigate, punish and ensure redress for the harm caused by abuses of human rights by third parties – private individuals, commercial enterprises or other non-state actors. This is an immediate obligation. Governments must regulate and monitor, for instance, corporate use of private security firms, potentially hazardous industrial emissions, the treatment of workers by their employers, and the adequacy and appropriateness of services that the state delegates or privatizes, including private medical practices and private schools.74

States have an obligation to fulfill human rights by taking legislative, administrative, budgetary, judicial and other steps towards the full realization of human rights. This obligation should be realized progressively. This obligation includes duties to facilitate (increase access to resources and means of attaining rights) and provide (ensure that the whole population may realize their rights where they are unable to do so themselves). The authorities must, for example, provide defendants with any necessary interpretation so that they can understand court proceedings, or introduce meaningful vocational training to ensure that students benefit from education. Above all, governments must give priority to meeting the minimum essential levels of each right, especially for the most vulnerable.

Argentina: government ordered
to produce vaccine

Within the duty to fulfill rights, states must prioritize their minimum core obligations. For the right to health, these include responding to epidemics. In 1998 a law student in Argentina, Mariela Cecilia Viceconte, together with the National Ombudsman, used the power of amparo, a form of class action to uphold constitutional rights, to demand that the state take more effective action to realize the right to health, and to respond to an epidemic of Argentine haemorrhagic fever threatening 3.5 million people.

The Federal Court of Appeals ordered that the state produce a vaccine, as the epidemic was unique to Argentina and the private sector saw the development of a vaccine as unprofitable. The court empowered the Ombudsman to monitor the implementation of its order, and held the Minister of Health personally accountable.75

In this case the court found that the state should take specific, concrete measures (developing a vaccine) to combat an epidemic that was unique to the country and where the private sector was unwilling to intervene.

Immediate obligations and ‘progressive realization’

The principal obligation on states under international human rights standards on economic, social and cultural rights is to achieve, progressively, the full realization of these rights according to the maximum of available resources ("progressive realization").76 States have a duty to take deliberate, concrete and targeted steps, as "expeditiously and effectively as possible", towards fulfilling these rights.77 Such measures might include adopting legislation or administrative, economic, financial, educational or social reforms, or establishing action programmes, appropriate oversight bodies or judicial procedures.78
In addition to the duty of progressive realization, states have various immediate obligations related to economic, social and cultural rights which are not dependent on available resources.79

The duty to "take steps" is an immediate obligation. The concept of progressive realization of rights does not justify government inaction on the grounds that a state has not reached a certain level of economic development. Conversely, taking steps to limit a right or taking retrogressive steps, for example by massively reducing investment in education or health services, can only be justified by an analysis of all the resources available to the state (including those available through international cooperation) and of the full range of obligations the state faces.80

To rely on circumstances beyond its control to justify rolling back the realization of rights, the state has to show that it could not reasonably have prevented the negative impact on the right. For example, the African Commission on Human and Peoples’ Rights found that Zaire (as the Democratic Republic of the Congo was then named) had violated the right to education when secondary schools and universities were closed for two years during a period of armed conflict.81

Another immediate obligation is the state’s duty to prioritize "minimum core obligations", minimum essential levels of each of the rights. Under the right to education, for example, core obligations include the right to free and compulsory primary education, and ensuring that children are not taught in a racist, homophobic or otherwise discriminatory way. Under the right to health, states must ensure access to essential medicines, emergency care and pre- and post-natal care. To justify a failure to fulfill core obligations, states must show that they have done all within their power.

"A State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant."82

The duty not to discriminate is also an immediate obligation. The adoption of laws, policies or practices that have a direct or indirect discriminatory impact on the ability of people to realize their rights amounts to a human rights violation.

The duty to prioritize the most vulnerable is also an immediate obligation. The state should actively reach out to marginalized and excluded people, who face the greatest barriers in realizing their rights, and they should be given "first call"83 when allocating resources.

"Even in times of severe resources constraints…vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programs."84

Obligations beyond borders

"In addition to the separate responsibilities each state bears towards its own society, states are, collectively, the custodians of our common life on this planet – a life the citizens of all countries share."
Kofi Annan, UN Secretary-General85

With the growing influence of transnational corporations, the globalization of labour and finance, and increasing moves to link development cooperation with human rights, the international dimensions of human rights obligations are more important than ever.

In view of the glaring economic power imbalances between countries of the north and south, international cooperation and assistance is crucial to realizing economic, social and cultural rights of all people.

However international cooperation can have either positive or negative effects. It is not always based on human rights principles, such as non-discrimination or prioritizing minimum essential levels of each right. It does not always focus on those who are excluded, marginalized or the most vulnerable.

States’ obligations to respect, protect and fulfill economic, social and cultural rights are not limited to their own jurisdictions and territories under their effective control, but extend to actions beyond their borders.86 When state action in another country directly undermines the ability of that country’s population to realize their rights (failure to respect rights abroad), or where failure to regulate domestic actors results in human rights abuse abroad (failure to protect rights abroad), states should be held to account.

Despite increasing attention to issues of development cooperation, there is little awareness that international assistance is a human rights obligation, and not merely a question of charity or enlightened self-interest.

All UN member states have pledged to take joint and separate action to achieve universal respect for, and observance of, human rights for all without distinction.87 International standards oblige states to take steps, individually and through international assistance and cooperation, according to the maximum of available resources, towards the full realization of economic, social and cultural rights.88

Nigeria: forced evictions
the price of development?

A World Bank-funded project to improve drainage and sanitation in impoverished districts of Lagos, Nigeria, was halted after a local human rights group complained that thousands of people had been forcibly evicted from their homes. The Social and Economic Rights Action Center (SERAC) in 1998 petitioned the World Bank’s Inspection Panel, a body created by the Bank to provide an independent forum to analyse complaints that projects supported by the World Bank have not followed the Bank’s own operating policies, causing harm.89

A member of the Inspection Panel visited the affected site, talked with the local communities, World Bank staff, SERAC, officials and contractors. The Panel concluded that some of the affected communities had not received adequate notice of eviction or any compensation for their loss, in contravention of the Bank’s own operating policies.90 The Panel sought to use its good offices to ensure that the failings were rectified.91 The project was reported to have been halted, pending compensation and resettlement of those affected.92 Nevertheless, SERAC continued to report mass evictions of residents who were part of these communities, even as litigation on their behalf continued.93

International cooperation must at all times be based on consent.94 However, states are required to seek international assistance where they cannot meet their minimum core obligations.95 In the spirit of this international pledge, countries that are genuinely committed to realizing minimum essential levels of rights, and have taken all reasonable measures to do so, should be provided additional resources from those states "in a position to provide assistance".96

Confronting human rights failures of development cooperation has, until now, been achieved primarily through analysing whether development assistance policies are rights-based in practice.97 Recently, however, the UN Committee on Economic, Social and Cultural Rights has begun to analyse states’ development cooperation policies, and even to call for greater resources to be made available through international cooperation.98

Millennium Development Goals

All UN member states have pledged to achieve by 2015 the UN Millennium Development Goals, eight goals that represent an unprecedented international opportunity to ameliorate social conditions in developing countries:99

  • halving extreme poverty and hunger
  • achieving universal primary education
  • promoting gender equality and empowering women
  • reducing the mortality rate of children under five by two-thirds
  • reducing the rate of women dying in childbirth by three-quarters
  • reversing the spread of HIV/AIDS, malaria and other major diseases
  • ensuring environmental sustainability, including by halving the proportion of people without access to safe drinking water
  • developing a global partnership for development, with targets for aid, trade and debt relief

The current global focus on achieving the UN Millennium Development Goals represents a tremendous opportunity for civil society to capitalize on the attention the Goals could potentially give to economic, social and cultural rights over the next 10 years. However, some of the Goals appear to set levels of expected achievement lower than those that states are required to meet under international law. The Goal of halving hunger, if met, would hugely increase life expectancy, health and human dignity. Yet the 151 states that have ratified the International Covenant on Economic, Social and Cultural Rights are already required to ensure, at the very least, that everyone is free from hunger. Such legal obligations are rarely integrated in the consideration of the achievement of the Goals. In addition, the Goals reflect only partially the spectrum of economic, social and cultural rights issues that states are obliged to address. Also, they exclude civil and political rights such as freedom of expression and association, despite global acceptance that rights are rarely realized where individuals are denied the freedom to mobilize in defence of their rights.

Moreover, concentrating on abstract and average targets such as this must not allow patterns of injustice to go unchallenged. Marginalized groups, including displaced people, indigenous peoples, migrants, minorities, refugees and women, are often overlooked. Progress towards these Goals needs to be analysed to see whether it is consistent with legal obligations to ensure non-discrimination. For example, increased numbers of children in school should not cloak the reality of an essentially unilingual, monocultural or segregated school system. The collection of data to identify progress towards each Goal among marginalized groups and the integration of human rights into monitoring the Goals are crucial to ensuring that the Goals contribute to the full realization of human rights.

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Endnotes

70 For example, Weigel, George, "Mrs. Roosevelt’s confusions revisited", American Purpose, Issue 1, vol.9, 1995.
71 Tomaševski, K., Preliminary report of the Special Rapporteur on the right to education, UN Doc. E/CN.4/1999/49, para 41.
72 This typology has now been recognized by treaty monitoring bodies as well as regional human rights enforcement bodies. See General Comments of the Committee on Economic, Social and Cultural Rights and, for example, Inter-American Court of Human Rights, Case Velázquez Rodríguez, Judgment of 29 July 1988, Series C, No. 4, and Social and Economic Rights Action Center and Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples’ Rights, Communication No. 155/96, October 2001.
73 UN Charter Articles 55 and 56 provide that all members pledge themselves to promote universal respect for, and observance of, human rights and fundamental freedoms for all without distinction.
74 The duty to protect applies to all human rights: Human Rights Committee, General Comment 31 on Article 2, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. HRI/GEN/1/Rev.6, para 8.
75 Cámara Nacional en lo Contencioso-Administrativo Federal, IV, Viceconte, Mariela C. v El Ministerio de Salud y Acción Social, 2/6/1998, see http://www.cohre.org/library/Litigating%20ESCR%20Report.pdf
76 ICESCR, Article 2(1).
77 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23.
78 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23, para 4.
79 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23.
80 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23.
81 African Commission on Human and Peoples’ Rights, Free Legal Assistance Group, Lawyers Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins de Jehovah v Zaire, Communication Nos. 25/89, 47/90, 56/91 and 100/93 (joined), Ninth Annual Activity Report of the African Commission on Human and Peoples’ Rights 1995/96, Assembly of Heads of State and Government, 32nd Ordinary Session, 7-10 July, Yaoundé, Cameroon.
82 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23 (the examples given are indicative, not exhaustive).
83 Marta Santos Pais (former Chair of the UN Committee on the Rights of the Child and Director of the UNICEF Innocenti Research Centre), A Human Rights Conceptual Framework for UNICEF, UNICEF Innocenti Essays No. 9, 1999, p. 8.
84 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23, para 12.
85 Annan, K., We the Peoples: The Role of the United Nations in the 21st Century, United Nations, 2000.
86 See Coomans, Fons, "Some remarks on the extraterritorial application of the ICESCR" in Coomans and Kamminga (eds.), Extraterritorial application of human rights treaties, Intersentia, 2004; Sepúlveda, Magdalena, The Nature of the Obligations under the ICESCR, Intersentia, 2003, pp. 370-377; Skogly, Sigrun, and Gibney, Mark, "Transnational Human Rights Obligations", Human Rights Quarterly 24.3 (2002), 781-798; International Council on Human Rights Policy, Duties Sans Frontières: human rights and global social justice, 2003.
87 UN Charter Articles 55 and 56.
88 Article 2(1), ICESCR, and Article 4, CRC.
89 According to its mandate, the Inspection Panel can only take into consideration the Bank’s own policies, although it has sometimes also taken relevant human rights principles into account.
90 World Bank, Inspection Panel Report and Recommendation on Request for Investigation, Nigeria: Lagos Drainage and Sanitation Project, http://wbln0018.worldbank.org/IPN/ipnweb.nsf/(attachmentweb)/Lagos_Sanitiation_Report/$FILE/Lagos_Sanitiation_Report.pdf
91 SERAC, Expendable People: an Exploratory Report on Planned Forced Evictions in Lagos, Lagos, 1998.
92 Frontline Defenders, ESC Rights: a valid history, a vibrant future, http://www.frontlinedefenders.org/
93 SERAC, Press Release, 23 October 2003, Lagos.
94 Recognized explicitly in ICESCR, Article 11.1, in respect of the right to adequate food.
95 For example, in respect of the right to adequate food, "[a] state claiming that it is unable to carry out its obligations for reasons beyond its control therefore has the burden of proving that this is the case and that it has unsuccessfully sought to obtain international support to ensure the availability and accessibility of the necessary food." Committee on Economic, Social and Cultural Rights, General Comment 12, para 17.
96 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties’ obligations, UN Doc. E/1991/23, para 14.
97 Learning Together: The challenge of applying a human rights approach to education – Lessons and suggestions from Zambia, Norwegian Agency for Development Co-operation (NORAD), 2002.
98 Concluding observations on Ireland (UN Doc. E/C.12/1/Add.77), UK (E/C.12/1/Add.79), France (E/C.12/1/Add.72), Sweden (E/C.12/1/Add.70), Japan (E/C.12/1/Add.67), Germany (E/C.12/1/Add.68) and Finland (E/C.12/1/Add.52); see generally Künnemann, Rolf, "Extraterritorial application of the ICESCR" in Coomans and Kamminga (eds.), Extraterritorial application of human rights treaties, Intersentia, 2004.
99 UN Millennium Declaration, adopted by General Assembly Resolution 55/2, 8 September 2000; the Millennium Development Goals, UNDP website, http://www.undp.org/mdg/

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