5. Who is responsible?

"In the interest of ensuring that ESC rights are taken more seriously as obligations, international human rights organizations should not be unduly limited in identifying the targets of their naming and the means of their shaming."
Mary Robinson, former UN High Commissioner for Human Rights¹²⁵

Responsibility for denial of economic, social and cultural rights frequently lies not only with governments but also with individuals, groups and enterprises.

Primary accountability in international law rests with the state in whose jurisdiction the violation occurs. However, in situations such as occupation or internal armed conflict, where an occupying state or an armed group exercises effective control over a part of the population, the controlling power should be answerable for human rights abuses within that territory.¹²⁶

During armed conflict, not only states but also other armed groups have responsibilities relating to economic, social and cultural rights under international humanitarian law. For example, Amnesty International issued several open letters to the Communist Party of Nepal (CPN) (Maoist) in 2004. They expressed concern about the impact of abducting schoolchildren for political education on their right to education; and about the potential harm of the Maoists' "blockade" of Kathmandu on access to food and essential medical supplies by the civilian population.¹²⁷

Where an interim UN administration exercises effective or joint control over a territory, it may be responsible for human rights abuses committed in that territory. Amnesty International has called on the UN Interim Mission in Kosovo (UNMIK) and the Kosovo/a authorities to find alternative accommodation for Romani communities living in dangerously polluted settlements.¹²⁸

States are also responsible for abuses by private individuals and other non-state entities, such as transnational corporations, where the state has jurisdiction over such individuals and enterprises, and where it fails to exercise due diligence in regulating their conduct.¹²⁹

The largest 300 firms control about 25 per cent of the world's productive assets.¹³⁰ Given this reality, there is an emerging international consensus, supported by Amnesty International, on the need to recognize corporate accountability for human rights abuses. While the primary responsibility lies with states, the Universal Declaration of Human Rights recognizes duties of "every organ of society", including corporations. There are moves to develop international standards that would hold businesses to account for abuses of human rights directly resulting from their operations, and would recognize their duty to prevent such abuses within their sphere of influence.¹³¹

States that provide international development assistance and cooperation should be held responsible for the human rights impact of their policies outside their borders. Donor states should ensure that their development cooperation policies are consistent with their human rights obligations, not only on paper but also in practice. Those receiving development assistance also have an obligation to ensure that this is used in a way consistent with human rights, including through devoting the maximum available resources towards the full realization of economic, social and cultural rights. Human rights violations resulting from development projects are therefore the responsibility both of donor states – where they were aware or should reasonably have been aware of the implications of the project – and of aid recipient states – where they failed to exercise due diligence to ensure that the intervention was consistent with human rights.

International financial institutions, such as the World Bank, exert enormous influence in defining states' economic and social policies. A particularly controversial aspect of the World Bank's activities is its responsibility and international accountability for the human rights impact of its operations.¹³² Officials of the Bank consider that it is not mandated to consider human rights in lending decisions, only economic criteria. Yet, as a specialized agency of the UN, the Bank is composed of states that have responsibilities to respect, protect and fulfil human rights in all activities, including in their actions and decisions taken through the Bank.¹³³

Structural Adjustment Programmes, which flourished under the auspices of the World Bank and the International Monetary Fund in the 1980s and early 1990s, united human rights groups and other sectors of civil society in opposition to the reduction of public funding for social services. Under many of the programmes, charges (user fees) were introduced for primary health care and education.¹³⁴ The impact on access to primary education, for example, was huge.¹³⁵ The capacity of the poor to access these services was significantly reduced, and the World Bank eventually amended its policy. Currently the Bank "does not support user fees for primary education and for basic health services for poor people."¹³⁶ To re-introduce free primary education for all, not only those considered poor, will require resources to fill any funding gap. Support from the international donor community would help offset the damage done previously when it encouraged moves away from free provision. International human rights law clearly states that primary education should be free and compulsory.¹³⁷

The most recent attempt to agree a compact for development between international financial institutions and loan recipient states has been the introduction of poverty reduction strategy papers (PRSPs). PRSPs, initiated in 1999 by the World Bank and the International Monetary Fund, are formulated by governments as a condition for debt relief, and are increasingly controversial. As the UN Special Rapporteur on the right to health has noted:

"Very few PRSPs built in any health indicators that would monitor the impact on poor people or regions. No PRSPs contained plans to include poor people in a participatory monitoring process. All of these shortcomings would have been, at least, attenuated if the right to health had been taken fully into account during the formulation of the relevant PRSP. It is no surprise that [a World Health Organization study] found that no PRSP mentioned health as a human right."¹³⁸

The potential for PRSPs to mobilize international solidarity through providing a framework for integrating human rights concerns into poverty reduction policies is largely unfulfilled. While some efforts have provided an outline of how this might be achieved, this has yet to be fully implemented in practice.¹³⁹

Participation, monitoring and recording in Ghana

In June 2001 a flood deluged the Nima-Mamobi neighbourhood of Accra, Ghana's capital, with raw sewage. The problem was exacerbated by the failure of local authorities to enforce codes requiring landlords to provide toilets in new homes.

The Legal Resources Centre (LRC), a local human rights body, responded by developing a long-term project to monitor the right to health in the community.¹⁴⁰ They began by surveying 161 households and identified the following priorities:

affordable health services, particularly the implementation of legal exemptions to user fees
adequate sanitation services and infrastructure, including toilets, waste-water drainage and rubbish disposal

Addressing the first priority, the LRC adopted a number of strategies. It gathered evidence of violations of the "user fee exemption" law in order to pursue litigation.¹⁴¹ It worked with health care providers to agree administrative practices to ensure their enforcement of the exemptions, provided community education on the exemptions, and raised its concerns with the government. A memorandum was sent to the World Bank, requesting that it re-evaluate the impact on the right to health in Ghana of its policy on user fees for health care.¹⁴²

On sanitation, the LRC gathered testimonies from members of the community and discussed joint strategies with community leaders, which resulted in the development of a potential litigation strategy. Youth club members and university students started to monitor the maintenance of government-owned toilets, and the frequency of refuse collection and gutter clearance.¹⁴³ This evidence was used to support a complaint to the Accra Metropolitan Assembly.

The LRC continues to follow up on each of these strategies, acting as an "anchor non-governmental organization" as part of Accra's inclusion in the UNDP/ Peoples' Decade for Human Rights "World Human Rights Cities Project".¹⁴⁴

Human rights organizations are increasingly adept at highlighting the range of actors who share responsibility for human rights abuses, while keeping the focus of primary responsibility on the state. This case shows how one organization has developed a methodology to document the impact of a particular project of development cooperation and held various actors to account for the denial of the right to health of communities affected by a flood.

As the realization of economic, social and cultural rights requires the acceptance of an integrated human rights approach to health, education and other social services, within states this requires collaboration across government ministries from agriculture to trade. Human rights advocates – who have traditionally targeted the authorities responsible for law enforcement, the penal system, defence and the judiciary on civil and political rights issues – may face new challenges in approaching a broader governmental, as well as non-governmental, audience.

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Endnotes

125 Robinson, Mary , "Advancing Economic, Social and Cultural Rights: the way forward", Human Rights Quarterly 26 (2004), p. 870.
126 When an occupying power exercises effective control, then the area under that control is considered within the jurisdiction of the occupying power. Human Rights Committee, General Comment 31, para 10.
127 Amnesty International, Open letter condemning the abduction and killings of civilians and the "blockade" of Kathmandu by the Communist Party of Nepal (Maoist) (AI Index: ASA 31/157/2004).
128 News release, Serbia and Montenegro (Kosovo/Kosova): Protect the right to health and life (AI Index: EUR 70/011/2005).
129 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, UN Doc. E/C.12/2000/13, para 18. The concept of due diligence is articulated in the decision of the Inter-American Court of Human Rights in the Case Velázquez Rodríguez, Judgment of 29 July 1988, Series C, No. 4, as well as in subsequent international instruments, such as the UN Declaration on the Elimination of Violence against Women.
130 Cassels, Jamie, "Outlaws: Multinational Corporations and Catastrophic Law", Cumberland Law Review, 31, 311, 2000/2001.
131 See Amnesty International, The UN Human Rights Norms for Business: Towards Legal Accountability (AI Index: IOR 42/001/2004).
132 Skogly, S., The Human Rights Obligations of the World Bank and the International Monetary Fund, Cavendish, London, 2001.
133 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,
UN Doc. E/C.12/2000/13.
134 During the 1980s the World Bank supported the "judicious use of modest fees" in primary education. World Bank, Education in Sub-Saharan Africa: policies for adjustment, revitalisation and expansion, 1988, p. 55. It welcomed revenue raised from those fees into the 1990s: World Bank, Primary Education, 1990, pp. 44-45.
135 The impact of this policy on Zimbabwe was analysed by the Bank's own Operations Evaluation Department: Structural Adjustment and Zimbabwe's Poor, at http://wbln0018.worldbank.org/oed/oeddoclib.nsf/0/
15a937f6b215a053852567f5005d8b06?OpenDocument
136 World Bank, User Fees in Primary Education, July 2004, http://www1.worldbank.org/education/pdf/EFAcase_userfees.pdf
137 Article 28 (1)(a), CRC; 13(2)(a), ICESCR; 26 (1), UDHR.
138 Annual report of the Special Rapporteur on the right to health, UN Doc. E/CN.4/2003/58.
139 OHCHR Draft Guidelines on a Human Rights Approach to Poverty Reduction Strategies, http://www.ohchr.org/english/issues/poverty/guidelines.htm
140 In association with the François-Xavier Bagnoud Center for Health and Human Rights, of Harvard University, USA.
141 Saudatu Sumila v Attorney General and Ministry of Health.
142 This was reportedly supplemented some years later with a complaint to the World Bank's Inspection Panel.
143 From COHRE, Online Newsletter, No. 5, November 2001.
144 Legal Resource Centre, Ghana.

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