4. Identifying violations of economic, social and cultural rights

Armed conflict is no pretext
Insufficient resources are no excuse

A violation of economic, social and cultural rights occurs when a State pursues, by action or omission, a policy or practice which deliberately contravenes or ignores obligations of the Covenant."
Maastricht Guidelines on Violations of Economic, Social and Cultural Rights¹⁰⁰

Much scepticism about economic, social and cultural rights is the result of feelings of helplessness or resignation in the face of overwhelming statistics on deprivation.¹⁰¹ Can all 840 million people who do not have access to nutritionally adequate food be victims of human rights violations?

Initial resistance to the recognition of economic, social and cultural rights as human rights stemmed in part from the perceived difficulty of monitoring and assessing the "progressive realization" of these rights. This would require the collection of reliable data, appropriately disaggregated according to each of the prohibited grounds of discrimination, as well as effective indicators to identify progress (or lack of progress) towards full realization. Attempts to identify appropriate indicators have advanced slowly.¹⁰²

However, faster progress has been made in developing a "violations based approach", identifying states' failures to meet immediate obligations or minimum core obligations.¹⁰³ Many organizations working on economic, social and cultural rights have adopted this approach, applying many of the techniques developed for monitoring civil and political rights violations.

What constitutes a violation?

A framework for assessing possible violations of economic, social and cultural rights has been developed through international expert seminars in 1986 and 1996, and confirmed by subsequent case law.¹⁰⁴ These include situations where a state:

fails to respect or protect a right or to remove obstacles to its immediate fulfilment (for example, through forced eviction or failing to adequately regulate private service providers)
employs policies or practices with the intent or effect of discriminating against certain groups or individuals on impermissible grounds (for example, where health care professionals speak only official languages, not minority languages)
fails to realize without delay a minimum core obligation (for example, failing to prioritize free and compulsory primary education)
fails to take prompt, concrete and targeted steps towards the full realization of a right (for example, failing to plan for essential medicines to be affordable and available to all)
fails to adequately prioritize the realization of minimum essential levels of each right, particularly for marginalized people, the excluded and the vulnerable (for example, investing heavily in improving the environment of wealthier districts and little on ensuring the safety of shanty towns)
places a limitation, not recognized in international law, on the exercise of a right ¹⁰⁵ (for example, restricting the right to security of tenure to citizens, and denying it to non-citizens)
retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by international law (because it lacks resources, or because of unforeseeable and uncontrollable events) (for example, closing all universities during an armed conflict)

A violation occurs either when a state has omitted to act to overcome deprivation or, alternatively, when it has actively impeded, or allowed others to impede, the realization of a right. Violations can be of duties to respect, protect or fulfil rights. Where denial of economic, social and cultural rights is a result of inability (where there are genuine resource constraints, or circumstances beyond the control or outside the knowledge of the state), a state cannot be said to have violated its international obligations. Violations are the result of unwillingness, negligence or discrimination.

Violations of economic, social and cultural rights can therefore occur across the breadth of states' obligations to respect, protect and fulfil human rights. They may include acts of direct obstruction or denial, and failures to act to prevent or redress denial of rights. As is the case for all human rights, many violations involve failures of the state to desist from a specific policy, legislative change or practice that is inconsistent with its obligations under international law. Allegations of this sort require proof that the act impedes realization of rights, and that a remedy lies in simply ceasing this course of action. Violations also often involve abuses by other actors, where the state has failed to regulate their conduct and has failed to ensure effective remedies for potential victims.

Allegations of failures to fulfil rights are harder to assess, as fulfilment of economic, social and cultural rights is more dependent on available resources. Nevertheless, three types of violations of the duty to fulfil economic, social and cultural rights can be identified:

retrogression, which includes:
- developing and implementing new policies that move further from the full realization of rights
- large-scale disinvestment in social services not justified by a general economic downturn
- the reallocation of resources away from economic, social and cultural rights to other areas, such as unwarranted or excessive military expenditure
discriminatory non-fulfilment. Non-discrimination is an immediate obligation that cuts across all obligations to respect, protect and fulfil rights. The adoption of laws, policies and practice that are inconsistent with the principle of non-discrimination amounts to a human rights violation.
the failure to prioritize minimum core obligations, particularly for the most vulnerable, when deciding on action to fulfil rights is a human rights violation. In the Democratic Republic of the Congo, South Africa and Swaziland, Amnesty International has concentrated its campaigning on the duty to prioritize health care provision for rape survivors, particularly in the context of the HIV/AIDS pandemic.¹⁰⁶

Other violations of the duty to fulfil may be more difficult to determine. Whether a state is in violation of its international obligations may involve judgements about resource allocation and policy prioritization. In adjudicating on such matters, courts in some countries have been reticent to intrude on the terrain of the executive or other public policy makers, or to issue rulings implying the redistribution of resources from one sector at the expense of another. However the standard of "reasonableness", developed in the South African courts, is useful in setting a threshold for acceptable state conduct:

"A Court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognise that a wide range of possible measures could be adopted by the State to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met."¹⁰⁷

In applying this principle, the Constitutional Court of South Africa considered whether the policy or programme was comprehensive, coherent and coordinated; balanced and flexible; allowed for short, medium and long-term needs; was reasonably conceived and implemented; and was transparent.¹⁰⁸

The Court considered that the obligation to fulfil the right to adequate housing was violated where housing policy did not prioritize the improvement of the housing condition of those living "with no access to land, no roof over their heads, and who were living in intolerable conditions or crisis situations."¹⁰⁹

States use a variety of arguments to excuse conduct that would generally be considered a human rights violation, often citing insufficient resources or security concerns, the burden of debt repayments or natural disasters. Although states have differing access to resources, international standards on economic, social and cultural rights take this into account: failure to ensure rights that genuinely results from inability cannot be judged a violation. Thus a temporary closure of a school or hospital following a natural disaster may be understandable where the building must be checked for safety or there are short-term problems in transporting staff to work. However, disaster response must not discriminate against marginalized groups.¹¹⁰

Armed conflict is no pretext

Armed conflict or states of emergency often result in widespread violations of economic, social and cultural rights. Health services, housing, food and clean water sources are destroyed or people are prevented from accessing them. Measures to respond to security concerns must be reasonable and proportionate to the threat. In times of armed conflict, they must also respect the distinction between civilians and combatants.

During an armed conflict, or an emergency that "threatens the life of the nation", governments may derogate from (declare that the guarantees are temporarily suspended) some, although not all, human rights obligations.¹¹¹ Yet many recent human rights instruments do not contain a derogation clause. In the case of the African Charter, for example, the African Commission on Human and Peoples' Rights has said that "limitations on the rights and freedoms enshrined in the Charter cannot be justified by emergencies or special circumstances."¹¹²

While the realization of economic, social and cultural rights may be a greater challenge during armed conflict, there is no provision made for derogation from obligations under the International Covenant on Economic, Social and Cultural Rights or other core treaties protecting these rights. As with human rights generally, only reasonable and proportionate limitations on the exercise of economic, social and cultural rights are permitted under international law and in pursuit of a legitimate aim (for example, public health, order and security).

At the very least, states must comply with minimum core obligations, which have been explicitly considered non-derogable.¹¹³

There are also a series of duties in international humanitarian law – the law of armed conflict – relating to the means and methods of conducting hostilities, and to the duties of an occupying power, which are relevant to economic, social and cultural rights. Examples include:

the prohibition of starvation as a means of warfare ¹¹⁴
the prohibition of means and methods of warfare likely to cause widespread, long-term damage to the environment, thereby jeopardizing the health or survival of the population
the prohibition of attack on objects essential to the survival of the civilian population ¹¹⁵
the duty to allow the free passage of medical workers and supplies through sieges ¹¹⁶
the duty of occupying powers to ensure and maintain medical services, public health and hygiene in territory under occupation ¹¹⁷

‘A part of our lives has gone':
destruction of homes and livelihoods
in the Israeli-Occupied Territories

"We were stunned. All we had time for was to get the children to safety. By the time we had done that, within a few minutes the bulldozers began destroying the house and there was no time to salvage anything."

Yusuf Muhammad Abu Houli, his wife and their nine children were in their home when it was surrounded by tanks and bulldozers. On 10 October 2000 the Israeli army began to destroy some of their land, and on 26 October demolished the first of the family's houses. On 9 November, a nephew, ‘Abd al-Hakim ‘Abedrabbo Abu Houli, married with four children, had his house demolished.

"The work of years smashed up just like that. The army came at 11pm with two tanks, one bulldozer and one jeep. They shouted at us to get out immediately or they would tear the house down over our heads. Our house was not the first to be demolished but still, you can't really be prepared for something like that. We had no idea that this was just the beginning, that within a few months we would be left with nothing. It's not just the houses, the furniture, the land, everything. It's a part of our lives which has gone."

Within a year, the extended family had lost a total of nine houses, about 35 hectares of land, a food-processing factory, a plant nursery, a chicken farm, three wells and several water storage pools. In all, 84 relatives were affected and 57 made homeless.

The Israeli army gave no explanation for the destruction of these properties. The family lived near the Israeli settlement of Kfar Darom in the Gaza Strip. In the Gaza Strip alone, some 18,000 Palestinians have been made homeless as the army and security forces have destroyed more than 3,000 homes, vast areas of agricultural land and hundreds of other properties since September 2000.

This massive destruction cannot be justified on the grounds of "absolute military necessity", as the Israeli authorities claim, and is frequently a form of collective punishment in reprisal for attacks by armed groups, in violation of international humanitarian law.¹¹⁸ The house destructions are carried out without notice, without due process, and without the provision of adequate alternative accommodation. As such, they also amount to forced evictions, which violate a range of human rights, including the right to adequate housing.

Insufficient resources are no excuse

All too frequently, states seek to justify a violation of economic, social and cultural rights on the grounds that they lack financial, technical or human resources.

In considering such claims, it is important to look at whether the state has given sufficient priority to human rights when setting budgets and has genuinely sought international assistance where needed.

Two further basic principles apply. "Even where the available resources are demonstrably inadequate, the obligation remains for a State Party to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances."¹¹⁹

In addition, "even in times of severe resource constraints, whether caused by a process of adjustment, of economic recession, or by other factors, the vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes."¹²⁰

A general lack of resources must also be differentiated from the ability to realize a specific duty. For example, in the course of analysing the adequacy of mental health care in Gambia, the government disclosed that it actually had a sufficient supply of medicines for mental health patients, but that they had not been distributed. Consequently the African Commission on Human and Peoples' Rights could justifiably order that the state provide these medicines to those who had need of them, even though it noted the state's severe resource constraints.¹²¹

Courts in some jurisdictions have considered whether resources allocation is consistent with constitutional human rights obligations. When the government of South Africa claimed that it lacked resources to provide anti-retroviral drugs to pregnant women, the Constitutional Court did not accept the claim. The Court's position was that the government could not argue that it lacked the resources to provide the drugs without developing a plan to determine the cost of "rolling out" provision across the country as part of a programme for people living with HIV/AIDS, and without assessing the various resources at its disposal.¹²²

India: using the courts to defend rights

The right to food has recently been defended in India using public interest litigation. In 2001 several Indian states faced a second or third year of drought but failed to ensure the minimum nutritional requirements of the population despite holding millions of tonnes of food stock. In response to a petition by the People's Union for Civil Liberties and other human rights groups, the Supreme Court first ordered the states to ensure the food needs of "the aged, infirm, disabled, destitute women, destitute men who are in danger of starvation, pregnant and lactating women and destitute children, especially in cases where they or members of their family do not have sufficient funds to provide food for them."¹²³ States were further directed to reopen food distribution shops and identify those below the poverty line who were in need of food assistance. The court thus required the immediate realization of minimum core obligations of the right to adequate food.¹²⁴

The development of economic, social and cultural rights case law in India is a positive example of creative judicial intervention working from unpromising material. The Indian Constitution makes a distinction between fundamental rights (civil and political rights enforceable in the courts) and directive principles of state policy (to guide governmental decision-making). The Supreme Court, however, has used these principles to broaden the interpretation of fundamental rights. In particular, it has interpreted the right to life to include the right to a livelihood, to adequate nutrition, clothing and reading facilities, and to housing, health and education. Access to the courts for disadvantaged people has been made much easier, through relaxing procedural rules to permit public interest litigation on the basis of informal petitions.

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Endnotes

100 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, UN Doc. E/C.12/2000/13, para 11.
101 Submission of the Committee on Economic, Social and Cultural Rights to the World Conference on Human Rights, 1993, UN Doc. E/1993/22, Annex III, para 7.
102 See the HURIST (Human Rights Strengthening) Programme, a joint programme of UNDP and OHCHR, at www.ohchr.org
103 Developed in Chapman, Audrey R., "A ‘violations approach' for monitoring the ICESCR", Human Rights Quarterly 18 (1996) 23-66.
104 Adapted from The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles), UN Doc. E/CN.4/1987/17 (and in E/C.12/2000/13), para 72.
105 The exercise of the rights in the ICESCR may be subject "only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society", Article 4, ICESCR. This article "was primarily intended to be protective of the rights of individuals rather than permissive of the imposition of limitations by the State", Limburg Principles, UN Doc. E/CN.4/1987/17 (and in E/C.12/2000/13), para 46.
106 Amnesty International, Democratic Republic of Congo, Mass Rape: time for remedies (AI Index: AFR 62/018/2004); Amnesty International Report 2002, 2003, 2004 and 2005, entries on South Africa; Amnesty International and Human Rights Watch, South Africa: Submission to the Parliamentary Portfolio Committee on Justice and Constitutional Development, on the draft Criminal Law (Sexual Offences) Amendment Bill, 2003 (AI Index: AFR 53/006/2003); Amnesty International, Stop violence against women: Violence fuels the HIV/AIDS pandemic in Swaziland (AI Index: AFR 55/001/2004).
107 Government of the Republic of South Africa and Others v Irene Grootboom and Others, Case CCT 11/00, para 41.
108 Liebenberg, Sandra, "Basic Rights Claims: how responsive is ‘reasonableness review'", Economic and Social Rights Review, Volume 5, No. 5, December 2004, www.communitylawcentre.org.za/ser/esr2004/2004dec_claims.php
109 Government of the Republic of South Africa and Others v Irene Grootboom and Others, Case CCT 11/00.
110 For example, such concerns arose in the context of the response to the Indian Ocean tsunami. For an overview of human rights concerns in Nanggroe Aceh Darussalam (NAD) following the tsunami, see Amnesty International, Indonesia: the role of human rights in the wake of the earthquake and tsunami (AI Index: ASA 21/002/2005).
111 See, for example, General Comments 5 (1981) and 29 (2001) of the Human Rights Committee interpreting the derogation clause in Article 4 of the ICCPR.
112 African Commission on Human and Peoples' Rights, Communication No. 105/93, Media Rights Agenda & Constitutional Rights Project v Nigeria, 12th Activity Report 1999/2000, p. 64.
113 See, for example, Committee on Economic, Social and Cultural Rights, General Comment 14, The right to health, UN Doc. E/C.12/2000/4, para 45.
114 Article 54(1), Protocol Additional to the Geneva Conventions of 1949 (Protocol 1, applicable in international armed conflicts, although many of its provisions are reflective of customary international law, and are thus applicable to all states in all circumstances, with the exception of "conscientious objectors").
115 Article 54(2), Protocol Additional to the Geneva Conventions of 1949.
116 Article 17, Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) (applicable in international armed conflict, and contains many provisions on the duties of an occupying power).
117 Article 56, Fourth Geneva Convention.
118 From Amnesty International, Israel and the Occupied Territories: Under the Rubble – house demolition and destruction of land and property (AI Index: MDE 15/033/2004).
119 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties' obligations, UN Doc. E/1991/23, para 11.
120 Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of states parties' obligations, UN Doc. E/1991/23, para 12.
121 African Commission on Human and Peoples' Rights, Purohit & Moore v The Gambia, Communication No. 241/2000, 33rd Ordinary Session (15-29