A primer on economic, social and cultural rights

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6. All rights for all people

Human rights apply to all people simply because they are human. Yet some people face particular difficulties in realizing their rights because of who they are. Women, for example, not only face direct discrimination in law, but also the impact of long-standing discrimination implicit in dominant social attitudes and "historically unequal power relations between men and women", which have impeded the achievement of gender equality.145

People are discriminated against on a wide range of grounds including their gender, race, ethnicity, lack of citizenship, sexuality, health (particularly those living with HIV/AIDS), poverty or disability. Many people face discrimination on several grounds at once, leading to multiple marginalization.

Social movements working for the rights of women, children, indigenous peoples and other groups have highlighted specific ways in which these groups are economically, socially and culturally disempowered and disadvantaged. They have identified measures needed in law and policy to address this. Their efforts are also reflected in the development of international standards specific to these groups. International standards now recognize not only the duty to immediately prohibit discrimination, but also to ensure that it is progressively eliminated. Special measures or "affirmative action" taken to redress conditions (including pervasive discrimination) that prevent or impair the enjoyment of human rights are not prohibited under international law; in fact they are required.146 Such measures must be reasonable and objective, have a legitimate aim, and cease when the goal is achieved.147

Children

"If children had a voice they would, rightly and repeatedly, criticize adult society for hypocrisy."
Thomas Hammarberg, former Vice Chair, UN Committee on the Rights of the Child148

Children’s rights have seized the world’s imagination in an unprecedented way. The UN Convention on the Rights of the Child has been ratified by more countries, more quickly than any other international treaty. It is now a binding legal standard for the entire world, with the sole exceptions of Somalia and the USA, the only two countries not to have agreed to it. For the first time in international law, the Convention recognized that children are not the property of their parents, or of anyone else.149 They are fully-fledged human beings with human rights. The Convention includes the key principle that all decisions made on behalf of a child, whether by the state, by a parent or guardian, or by any other person, must be taken in the best interests of the child. It also protects children’s right to express opinions and have them taken into account, according to their developing capacities. Other general principles in the Convention include the right to freedom from discrimination and the right to survival and development.

A key theme in the Convention is the protection of children from abuse and exploitation. Such exploitation can take various forms, but is often economically motivated. Economic exploitation is proscribed.150 One of the main focuses of child rights activists and the UN Committee on the Rights of the Child has been child labour, although the Committee recognizes that "not all areas where an economic element prevails are necessarily exploitative".151 There are two key ILO standards in this area: Convention 182, which prohibits the most dangerous forms of child labour, and Convention 138 on the minimum age for employment. According to these standards, children may not work in hazardous jobs below 18 years of age, and may perform only "light work", which does not interfere with their education, below the age of 15.156

Regulating the use of
child labour: Portugal

An important regional instrument for the protection of economic, social and cultural rights is the European Social Charter. Since 1995, organizations representing victims have had the right to lodge collective complaints outlining alleged violations of Charter rights. An early case, brought by the International Commission of Jurists (ICJ), alleged that Portugal had failed to effectively regulate the working conditions of a large number of children. The ICJ outlined that:

"the granite industry in the north employs young boys who work unprotected from the granite dust while breaking stones. Children are reported to suffer badly from this work, as their lungs are dangerously coated with granite dust and their backs are badly affected."152

The European Committee of Social Rights found that this went beyond "light work", that Portugal was insufficiently regulating the practice of employers in using child labour, and was in breach of the Charter153 and Portuguese law.154

The decision appears to have led to improvements, including legislative amendments and increasing the number of labour inspectors, and the experience of the ICJ highlights the importance of local partner organizations monitoring follow-up.155

Among innovative provisions of the Convention are those that protect the rights of disabled children (Article 23) and extend cultural rights explicitly to indigenous children (Article 30). The Convention also sets out the duty of the state "in case of need to provide material assistance and support programmes [to parents], particularly with regard to nutrition, clothing and housing."157

Women

All universal and regional human rights treaties prohibit discrimination on the basis of sex. Yet women continue to face widespread and systematic inequality in the realization of their economic, social and cultural rights. The UN Development Fund for Women has concluded that women’s average wages are less than those of men in all countries where data is available.158

States that are party to the Convention on the Elimination of All Forms of Discrimination against Women are obliged to "pursue by all appropriate means and without delay a policy of eliminating discrimination against women".159 This is a significant challenge. Discriminatory practices towards women are often justified by reference to traditional, historical, religious and cultural attitudes. Factors such as the segregated labour market, disparate social roles in terms of family responsibilities and gender-based violence present additional obstacles to equal achievement of economic, social and cultural rights by women. For example, the traditional assignment to women and girls of the role of primary care-giver in the family restricts women’s freedom of movement and consequently their access to paid employment and education.160 When states fail to give adequate priority to primary education for all, it increases the likelihood that families will decide not to send girls to school. The UN Special Rapporteur on the right to education has pointed out that "years of schooling appear wasted when women do not have access to employment and/or are precluded from becoming self-employed, do not have a choice whether to marry and bear children, or their opportunities for political representation are foreclosed."161

A range of obstacles inhibits the realization of women’s right to health. Among them are: lack of access to health care and health-related information and education, including in relation to family planning; violence, including sexual violence; and harmful traditional practices. Discrimination and unequal relations between men and women underpin these obstacles.

"Women’s human rights to land and adequate housing are systematically denied – the majority of the well over one billion inadequately housed persons in the world are women. Yet the most blatant gender-specific violation of such rights is the denial of women’s rights to own and inherit housing, land and property. Women throughout the world, after the death of a husband or father, are denied these basic rights and deprived of their homes and lands. The effects are devastating: destitution and homelessness, increased vulnerability to HIV/AIDS infection, physical violence, and other grave violations of women’s fundamental human rights."
Centre on Housing Rights and Evictions, Bringing Equality Home, Geneva, 2004.

Land is an essential resource in many contexts to achieve the right to an adequate standard of living, yet women are often denied land, inheritance and housing rights. Furthermore, they may not have access to courts in order to enforce their rights, even where these are nominally guaranteed.

Indigenous peoples

There are an estimated 370 million indigenous people across the world, with an extraordinary diversity of cultures and histories. To be identified as "indigenous" implies certain things in common, including:162

Indigenous peoples seek recognition of their rights both as individuals and as nations or peoples on their own terms, in accordance with their traditions.

The centrality of the relation to land of indigenous peoples to the realization of a wide range of rights is increasingly recognized.163 Traditional ways of living off the land are central to providing food, medicine and housing to indigenous families and communities, and to maintaining the practices that nourish their spiritual and social lives. Indigenous peoples around the world are seeking formal demarcation of their territories: that is, mapping, marking and protecting their boundaries from unwanted intrusions and ecological destruction.

Indigenous peoples’ rights are recognized in the national laws and constitutions of some states and in historic and contemporary treaties between indigenous peoples and states. There is also a trend towards their recognition in international law, including existing instruments such as ILO Convention 169 – the Indigenous and Tribal Peoples Convention (1989); references in general human rights instruments; and discussions of a draft UN Declaration on the Rights of Indigenous Peoples.164 Current concerns of indigenous peoples include ensuring that the right of all peoples to self-determination applies equally to indigenous peoples.165 Another focus of concern is the right to free, prior, informed consent on decisions affecting the realization of their rights.166

The inextricable link between culture and other human rights was recognized by the UN Human Rights Committee in a number of decisions concerning the lands and livelihoods of indigenous peoples, including decisions about Lubicon trappers in Canada170 and Saami reindeer herders in Finland.171

Land rights in Brazil and Nicaragua:
contrasting outcomes for indigenous people

"In the Guarani and Kaiowá areas, what happens? A lot of malnutrition. We have no land to plant on. Precisely because of this, there is misery and hunger in our land... We Indians have already taken a decision. If an eviction occurs in these areas in conflict, we will commit suicide. We will commit suicide because we don’t mean anything to anyone."
Indigenous leader in a public meeting with a special Brazilian senate commission on indigenous affairs, February 2004.167

After centuries of violence to drive indigenous peoples in Brazil off their land, they are still being threatened, attacked and killed, and their protection by the state is inconsistent. Successive governments have failed to deliver on international and constitutional obligations to recognize their land rights fully and finally. The current administration has also been slow to follow through on promises to demarcate and ratify territories. This has contributed to attacks on indigenous communities and forced evictions, aggravating already severe economic and social deprivation. Prospectors, ranchers and logging companies seek to exploit the land’s natural resources; landowners claim title to it; and the military cite national security interests to reduce and limit the control of border areas by indigenous communities. Such vested interests use substantial economic and political lobbying powers to delay and block the recognition of indigenous peoples’ land rights. As a result of state inaction, indigenous peoples are deprived of the essential resource for the realization of their economic, social and cultural rights – their land.168

Protection for indigenous land rights was won in 2001 by the Awas Tingni people living on the Atlantic coast of Nicaragua, in the first binding decision by an international human rights tribunal to explicitly recognize the rights of indigenous peoples over communal land. The Awas Tingni appealed in 1995 to the Inter-American Commission on Human Rights to protect rights under threat from logging operations by a foreign company. Although the Nicaraguan Constitution recognizes the rights of indigenous peoples over communally held land, the Awas Tingni lands were untitled. The Inter-American Court of Human Rights in August 2001 found that the government had effectively treated the Awas Tingni land as state property when it granted the logging concession without the consent of the community. It found that Nicaragua had violated the Awas Tingni’s rights to judicial proceedings and to property under the American Convention on Human Rights. It ordered the government to refrain from infringing their rights and to ensure the demarcation and titling of all indigenous land.169

Migrants

The ILO estimates that up to 86 million people are economically active outside their country of origin or citizenship.172 Migrant workers play a vital role in sustaining the economy and enriching the culture in the countries in which they work. Yet people who leave their country for social and economic reasons are often vilified. Many experience discrimination, racism and xenophobia, exploitation and other violations of their human rights, including their economic, social and cultural rights. Many migrants around the world have no status in the country in which they live because they do not have the legal right to enter into or remain in the country. Such people are additionally vulnerable to abuse. Some states are only too willing to turn a blind eye to large numbers of irregular migrant workers working in the informal economy.

Many migrant workers live and work in appalling conditions, without access even to essential services such as health care. The countries of origin of many migrant workers often sign agreements with countries of employment in which their citizens are treated as commodities or mere units of labour. Irregular migrants, who often face expulsion from the state in which they reside, are often unwilling to speak up against abuses of their rights by governments, state agents, or employers, increasing their vulnerability to exploitation.

All migrants, regardless of their status, are entitled to the protection of international human rights law and standards. While the fundamental principle of non-discrimination permits certain distinctions to be made between nationals and non-nationals, these distinctions must serve a legitimate objective and must not be disproportionate. Most importantly, such distinctions must not inhibit the individual, either directly or indirectly, from enjoying his or her human rights. The Committee on the Elimination of Racial Discrimination (which monitors states’ compliance with the International Convention on the Elimination of All Forms of Racial Discrimination) recently clarified the scope of the rights of non-citizens. It underlined that the Convention requires, among other things the "Remov[al of] obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens, notably in the areas of education, housing, employment and health."173

The protection of the human rights of migrants is now complemented by the seventh core international human rights treaty, the Migrant Workers Convention.174 The Convention covers rights and protection for migrant workers at all stages of migration, and applies specific protection to irregular migrants and their families. Amnesty International is campaigning for ratification of the Convention as well as for migrants’ rights in specific situations around the world. Amnesty International has for example called on Thailand to respect the rights of migrants from Myanmar, focusing on their rights at work.175

Refugees and internally displaced people

There are almost 40 million displaced people in the world: roughly one third of these, 13 million, have left their countries to find protection from conflict or other situations where they would be at risk of serious human rights violations, and are called refugees.176 Two thirds, around 25 million, are trying to find protection within their country’s borders and are known as internally displaced persons.177 Enjoyment of economic, social and cultural rights is of fundamental importance for refugees and internally displaced people before, during and after their flight.

The denial of economic, social and cultural rights can cause displacement. Massive violations of rights such as the right to food through sieges or discriminatory distribution of food aid can force thousands to leave their homes.178 Sometimes individuals are specifically targeted: if a state violates the rights of individuals because of who they are (for example, gender, ethnicity) or what they believe in (for example, their religion or political opinions, including opinions on gender roles), this may constitute a ground for recognition as a refugee. The interdependence of rights means that the denial of economic, social and cultural rights is often linked to the denial of civil and political rights.

The current international system for the protection of refugees is based on the 1951 UN Convention relating to the Status of Refugees and its 1967 Protocol, which aim to ensure that refugees have "the widest possible exercise" of all rights recognized in the Universal Declaration of Human Rights. This requires that states ensure work, housing and education to refugees on their territory on at least as favourable a basis as either nationals or other non-nationals. In countries of asylum, this is now complemented by international law protecting the rights of non-nationals generally.179

There are three possible solutions to the plight of refugees: complete local integration in the country of asylum; resettlement in a third country; or voluntary repatriation in safety and dignity to the country of origin. Each requires that refugees are able to enjoy economic, social and cultural rights:

Economic, social and cultural rights are not only important in the long-term perspective. Emergency delivery of food, shelter and health care to displaced populations is an element of states’ obligations to realize minimum essential levels of economic, social and cultural rights. According to agreed standards, humanitarian response to emergency situations is premised on the imperative of meeting human needs and restoring human dignity.182 Often the displaced people themselves will highlight the necessity of realizing economic, social and cultural rights. Many people from Darfur in western Sudan, whom Amnesty International met as refugees in eastern Chad, said that their main concern was that their children should have access to education.183

There is no specific international treaty aimed at providing protection for internally displaced people. Many of the main provisions and principles of relevance to their protection and assistance are collected in the UN Guiding Principles on Internal Displacement, a 1998 document that has received widespread endorsement, although it is not legally binding.184 The Guiding Principles reiterate that the primary responsibility for protection and assistance lies with the state on whose territory the displaced population finds itself. They stipulate the right of all internally displaced people to an adequate standard of living, and to certain minimum economic, social and cultural rights "regardless of the circumstances, and without discrimination". They also contain standards on the necessity of access to displaced populations for humanitarian organizations to deliver assistance, and the obligations of humanitarian organizations to respect the human rights of the internally displaced people.

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Endnotes

145 UN Declaration on the Elimination of Violence against Women, preambular paragraph.
146 Article 2(2), ICERD, "when circumstances so warrant"; Article 4, CEDAW.
147 Human Rights Committee, General Comment 18, Non-discrimination, 10 November 1989.
148 Report of the CRC on its fourth session, UN Doc. CRC/C/20, 25 October 1993.
149 There is an emerging consensus in international law that a child is anyone under the age of 18. Article 1 of the CRC, however, defines children as "every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier."
150 Article 32, CRC.
151 Opening Comments of Marta Santos Pais to the UN Committee on the Rights of the Child, Day of Discussion on "Economic Exploitation of Children", UN Doc. CRC/C/20, 25 October 1993.
152 Included in interview with Nathalie Prouvez, COHRE, Litigating ESCR: achievements, challenges and strategies, 2004, p. 140.
153 Article 7(1).
154 European Committee of Social Rights, Complaint No. 1/1998, From the International Commission of Jurists Against Portugal, http://www.gddc.pt/direitos-humanos/portugal-dh/relatorios-ce/cds6.html
155 Interview with Nathalie Prouvez, COHRE, Litigating ESCR: achievements, challenges and strategies, 2004, p. 140.
156 This may be temporarily set at 14 according to economic exigencies, ILO Convention 138.
157 Article 27(3).
158 UNIFEM, Progress of the World’s Women, New York, 2000, p. 92.
159 CEDAW, Article 2.
160 See the "Montréal Principles on Women’s Economic, Social and Cultural Rights" developed by a wide range of civil society and academic activists, available at Center for Economic and Social Rights, http://cesr.org/node/view/697
161 The right to education, UN Doc. E/CN.4/2004/45, para 34.
162 Martinez Cobo, José R., Study of the Problem of Discrimination against Indigenous Populations, UN Doc. E/CN.4/Sub.2/1986/7.
163 See for example, UN Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) Concerning indigenous peoples, UN Doc. A/52/18, annex V, 1997; and Case of the Mayagna (Sumo) Community of Awas Tingni v Nicaragua, Inter-American Court of Human Rights, 31 August 2002, Series C, No. 79.
164 Article 30 of the CRC expands protection of cultural rights of persons belonging to minorities, provided under Article 27 of the ICCPR, to include children as members of an indigenous people.
165 The right to self-determination, Article 1 of both the ICCPR and ICESCR; and Grand Council of the Crees et al, Assessing the International Decade: Urgent need to renew mandate and improve the UN standard-setting process on indigenous peoples’ human rights, Submission to the OHCHR, March 2004.
166 Recently recognized by the UN Committee on the Elimination of Racial Discrimination, General Recommendation XXIII (51) Concerning indigenous peoples, UN Doc. A/52/18, annex V, 1997.
167 Amnesty International, Brazil: Safety and survival of indigenous peoples at risk (AI Index: AMR 19/009/2005).
168 Amnesty International, "Foreigners in our own country": Indigenous peoples in Brazil (AI Index: AMR 19/002/2005).
169 Anaya, S. James, and Grossman, Claudio, "The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of Indigenous Peoples", 19 Arizona Journal of International and Comparative Law. 1 (2002).
170 UN Doc. CCPR/C/38/D/167/1984.
171 UN Doc. CCPR/C/52/D/511/1992.
172 ILO, Towards a Fair Deal for Migrant Workers in the Global Economy, International Labour Conference, 92nd Session, p. 7.
173 UN Committee on the Elimination of Racial Discrimination, General Recommendation 30, Discrimination against non-citizens, UN Doc. CERD/C/64/Misc.11/rev.3, 2004.
174 International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, in force since 1 July 2003, currently ratified by 30 states.
175 Thailand: the plight of Burmese migrant workers (AI Index: ASA 39/001/2005).
176 See website of the UN High Commissioner for Refugees, www.unhcr.org
177 See website of the Global IDP Project, www.idpproject.org
178 See Amnesty International, Starved of Rights: Human Rights and the Food Crisis in the Democratic People’s Republic of Korea (North Korea) (AI Index: ASA 24/003/2004).
179 See UN Committee on the Elimination of Racial Discrimination, General Recommendation 30, Discrimination against non-citizens, UN Doc. CERD/C/64/Misc.11/rev.3, 2004.
180 Amnesty International, Lebanon: Economic And Social Rights of Palestinian Refugees – Submission to the Committee on the Elimination of Racial Discrimination
(AI Index: MDE 18/017/2003).
181 Amnesty International, Afghanistan: Out of sight, out of mind – The fate of the Afghan returnees (AI Index: ASA 11/014/2003).
182 The Sphere Project has for instance developed a Humanitarian Charter and Minimum Standards in Disaster Response, which sets out the rights of people affected by disasters, and includes fundamental economic, social and cultural rights. See www.sphereproject.org
183 Amnesty International, Sudan: Darfur: "Too many people killed for no reason" (AI Index: AFR 54/008/2004), pp. 33-34.
184 UN Doc. E/CN.4/1998/53/Add.2, 11 February 1998.

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