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7. Defending economic, social and cultural rights

Working for change through individual cases Documenting abuses Working in partnership Lobbying for constitutional guarantees Examining budgets Time for action

Human rights are recognized as a result of popular struggles. It is people, not politicians, who claim rights, and it is their efforts that lead to official recognition. All significant advances in the protection of human rights have developed from social struggles, including those of organized labour, anti-colonialists, the women's movement and indigenous peoples.

Campaigning against abuses of economic, social and cultural rights is not new. Local, national and regional human rights organizations have been defending these rights for decades. International organizations working on these rights emerged from the 1980s onwards, including the international Food First Information and Action Network (FIAN) in 1986, the Center on Economic and Social Rights in 1993, the Centre on Housing Rights and Evictions (COHRE) in 1994, and many others. There is now a broad international network of economic, social and cultural rights NGOs (ESCR-NET). Yet scepticism on the nature of these rights persists, particularly on how to campaign against their violation. Some people within the international human rights movement question to what extent international human rights organizations should work on these issues.¹⁸⁵

Key challenges for those campaigning to advance economic, social and cultural rights include identifying violations, victims, violators and remedies on which to focus campaigning. How best can human rights activists transform calls for policy reforms into concrete actions that highlight the need for change to improve the lives of individuals, groups and communities?

Working effectively to promote greater respect for economic, social and cultural rights will often mean confronting structural failings and underlying factors that allow individual abuses to continue. This is true for all human rights campaigning. Such changes may be as relatively straightforward as legislative amendments. They can also be as challenging as seeking to alter entrenched patterns of abuse, where methods include human rights training programmes for the police, prosecutors and judges, or for health professionals, food distributors, educators and policy makers.

One way of opposing violations of economic, social and cultural rights is to expose the impact of policies, projects and action that deprive individuals and groups of the ability to realize their rights.

Working for change through individual cases

For over 40 years, Amnesty International has mobilized millions of people all over the world to oppose human rights abuses. Largely, this has been through telling the stories of real women, men and children, and giving a human face to statistics of atrocities and neglect. The accounts of individuals who have suffered violations of their economic, social and cultural rights can be told equally effectively to highlight the impact of government action or inaction. While demanding remedies for a particular individual or group at risk, broader systemic factors can also be challenged.

Urgent appeals for individuals and
a community at risk in Mexico

When Margarito de la Cruz Ortiz, Paulino Díaz and other members of the community of San Rafael in Mexico were under threat, members of Amnesty International's Urgent Action network sprang into action.¹⁸⁶ The isolated village had been badly damaged in a landslide in 2003. Many families were left homeless or sleeping in temporary shelters. Others were said to be living in houses at serious risk of collapse. When community leaders complained to human rights groups of official failures to rehouse them, soldiers and police officers visited the village, apparently in an attempt to intimidate the community. Local people reported their predicament to the UN Special Rapporteur on the right to adequate housing and appealed to the Inter-American Commission on Human Rights for interim measures to prevent irreparable harm. Amnesty International members called for an investigation into the role of the military and police, and for the authorities to address the community's complaints of unsafe and inadequate housing.

In early 2005 the community was rehoused and provided with access to clean drinking water, sanitation and shelter. In April 2005, Amnesty International representatives were invited to the inauguration of the community's new settlement, and the community decided to name streets in their new village after each of the organizations which had helped them in their campaign.

 

Taking on the drug companies and
the government in South Africa

The Southern African region has been one of the worst affected by the HIV/AIDS pandemic. In South Africa, an estimated 5 million people – some 10 per cent of the population – are now HIV positive, with 600 people thought to die of AIDS-related illnesses every day.

The Treatment Action Campaign (TAC) was launched in 1998 to campaign for greater access to HIV treatment, by raising public awareness and understanding about issues surrounding the availability, affordability and use of HIV treatments.¹⁸⁷ To achieve its goals, TAC:

• formed professional alliances with activist economists, doctors and lawyers to research and present its case to drug companies, to the government, and ultimately in court
• undertook a five-year public education programme on treatment literacy to compensate for poorly trained health professionals and under-resourced facilities
• formed alliances with labour and religious sectors in launching its campaign, in the face of strong ideological disagreements

In 1998, a group of pharmaceutical companies took the government of South Africa to court to oppose draft legislation that would have allowed compulsory licensing and parallel import of anti-retroviral drugs, greatly reducing the cost of the drugs and allowing more people access to treatment. TAC and a global alliance of civil society organizations "named and shamed" the drug companies involved in the litigation, and campaigned in the companies' home countries, notably Switzerland and the USA. Faced with a growing international backlash, and the possibility of an unfavourable precedent in the South African Constitutional Court, the pharmaceutical companies eventually withdrew their claim in 2001.

TAC then found that this victory alone was insufficient. The government appeared reluctant to extend even its mother to child transmission prevention (MTCTP) scheme beyond 18 pilot sites. It cited cost, safety fears over the drugs, a need for counselling during the treatment course as well as infrastructure failures in the health service as reasons for stalling on the "rollout" of the provision of anti-retroviral drugs. TAC took the case to court. In December 2001 the Pretoria High Court accepted TAC's arguments and ordered the government to develop a plan of how it would extend the MTCTP scheme by March 2002.

The court determined that government policy prohibiting the use of one drug, nevirapine, outside the pilot sites was an unreasonable limitation on the duty to progressively realize the right to health. The court concluded that the government was under a duty to develop a plan to roll out MTCTP across the country, and then to address how to mobilize resources.¹⁸⁸

As the government delayed on implementing this decision, TAC organized a series of protests, marches, complaints to the South African Human Rights Commission, letter-writing, and finally a campaign of civil disobedience called "Dying for Treatment". By mid-2003, there appeared to be significant progress towards rolling out anti-retroviral drug treatment. Following tests for safety of key drugs, in August the government finally signed an agreement with the Global Fund to Fight AIDS, Tuberculosis and Malaria which provided US$41 million for the HIV treatment plan. The following day the government instructed the health department to develop a detailed operational plan for the anti-retroviral drug rollout.

The manufacturers of more than half the world's anti-HIV drugs (GlaxoSmithKline and Boehringer Ingelheim) receive compensation from the government of South Africa in return for permitting the production of generic versions of the drugs in South Africa. This was agreed after TAC filed a complaint with South Africa's Competition Commission. Had the complaint been considered by the competition tribunal, the companies would have been required to indicate the true cost of research and development of the drugs. TAC continues to monitor government progress in rolling out provision of anti-retroviral drugs.¹⁸⁹

Documenting abuses

While developing indicators of progress or decline in the realization of economic, social and cultural rights is an enduring challenge to the human rights community, research into violations of these rights is in many cases similar to research into violations of civil and political rights.

Campaigning strategies can be based on documenting abuses of governments' duties to respect or protect rights – such as forced eviction, poisoning water supplies, and crop destruction. They can also be built on identifying the people affected and the remedies required, such as halting the abuse and providing adequate reparation, and on identifying the range of actors responsible, such as a polluting business and the state that fails to regulate the activities of its businesses, at home and abroad. Campaigning tactics such as letter-writing and publicity can have success in such cases.

Skills in documenting economic, social and cultural rights are developing. They are increasingly shared internationally, through international workshops and networks, in manuals by NGOs for NGOs,¹⁹⁰ and through skills sharing on techniques ranging from budgetary analysis to the use of the constitution to effect change. Links between organizations working for economic, social and cultural rights around the world have never been stronger. One of the strengths of joining national campaigns with international solidarity is the ability to highlight the international dimensions of states' obligations towards economic, social and cultural rights, and how actions abroad, whether by the state, its representatives (including multilateral development banks) or its businesses, impact on the realization of human rights.

The indivisibility of all human rights often emerges when human rights organizations document patterns of human rights violations. The imprisonment of people campaigning for recognition of their land rights; the use of disproportionate force in response to protests over the impact of water privatization; the lack of judicial independence in eviction cases – all demand a holistic human rights response.

Public hearings in India and Thailand

Human rights standards guarantee the right to seek, receive and impart information.¹⁹¹ While this has long been used by journalists, more recently social movements have used this right to seek information on budgetary allocations in order to hold local officials accountable.

In Thailand, the Assembly of the Poor brings together development professionals, government representatives, human rights organizations and community representatives to discuss the impact of development interventions. The Assembly reportedly led to some projects being cancelled, facilitated the participation of communities in drafting relevant legislation to protect their rights, and obtained compensation for those already affected.¹⁹²

In India, the Mazdoor Kisan Shakti Sangathan (Union for Empowerment of Peasants and Labourers, MKSS), a grassroots organization in the state of Rajasthan, organizes Jan Sunwais (People's Hearings), where official documents about development projects are read aloud to villagers. Villagers then point out inaccuracies, such as the inclusion of dead people, records of allegedly completed projects that in fact never began, and inflated claims of food distribution.

Officials and contractors are invited to the hearings, where they answer questions and give their account. Although there has seldom been criminal action taken against corrupt officials, in some cases they have returned money after being exposed.¹⁹³ As two founders of MKSS state, "The right to information has...taken away the protection provided by secrecy to carry out...misdeeds in the name of development."¹⁹⁴

The work of MKSS and similar organizations in India was boosted by the Supreme Court, which held that "people at large have a right to know in order to take part in participatory development in the industrial life and democracy."¹⁹⁵

A National Campaign for the People's Right to Information in 1997 eventually contributed to the passing of legislation that secured the right to information in Rajasthan and several other Indian states, and discussion of a guaranteed right to information at the national level.¹⁹⁶

Working in partnership

"By working in collaboration or partnership with local civil society organizations, international human rights organizations can strengthen the hand of these organizations and also obtain... legitimacy of voice"
Mary Robinson, former UN High Commissioner for Human Rights¹⁹⁷

International human rights organizations new to working on economic, social and cultural rights have much to learn from those local, national, regional and international human rights and other civil society organizations with greater experience of documenting and campaigning on these issues.

Many community based organizations, indigenous peoples, development organizations and other civil society representatives have long campaigned for social justice concerns which can be defined as human rights issues. The human rights movement and other movements for social justice have much to learn from one another, and regional and international Social Forums may continue to offer a key opportunity for sharing experience and perspectives.

Groups promoting economic, social and cultural rights have used a range of approaches and initiatives and have joined in broad partnerships to advance their goals. They have worked with legislators and lawyers to draft legislation, have initiated court cases on behalf of individuals or groups, and have increased media and public interest in significant cases. They have trained law enforcement officers, judges and others on economic, social and cultural rights. Others have held public hearings and used the right to information to challenge the corrupt diversion of resources that should have been used to realize economic, social and cultural rights. Other techniques include demanding recognition of economic, social and cultural rights in legislation and especially the constitution, long-term grassroots monitoring and budgetary analysis.

Lobbying for constitutional guarantees

"A Constitution containing only civil and political rights projects an image of truncated humanity. Symbolically, but still brutally, it excludes those segments of society for whom autonomy means little without the necessities of life."¹⁹⁸

Lobbying for amendments to legislation and constitutions so that they reflect all human rights obligations of the state is a growing area of human rights advocacy. Some economic, social and cultural rights (such as the right to education) are included in a large number of constitutions.¹⁹⁹ Others (such as the right to water) have only recently begun to be systematically included in constitutions in response to campaigning and outrage at their violation.²⁰⁰ Inclusion of economic, social and cultural rights in the constitution does not guarantee their respect, but it represents an important commitment to the indivisibility of human rights and facilitates the enforcement of these rights by affected people.

A number of constitutions safeguard minimum resource allocation for the realization of economic, social and cultural rights. The constitutions of Brazil, Costa Rica and the Philippines, for example, have been used to challenge budgetary allocations for education, in the courts through public interest litigation and on the streets through direct action to demand compliance with constitutional obligations.

Examining budgets

"Budget analysis can often pinpoint inadequacies in expenditures, misdirection of funds or a ‘misfit' of expenditures relative to the government's stated human rights commitments – particularly with regard to its ‘positive' obligations (obligations to take action) rather than its ‘negative' obligations (obligations to desist from doing something)."²⁰¹

Budgetary analysis is fast emerging as a key technique in pressing governments to meet their human rights obligations. Particularly for economic, social and cultural rights, this method allows human rights activists to quantify the steps the government is taking to fulfil its obligations. As a parallel process to documenting violation and abuse, it can be a significant tool in monitoring and encouraging the progressive realization of rights.²⁰²

Time for action

There can no longer be any excuses for failing to take action. Violations of people's economic, social and cultural rights can no longer be ignored. Hunger, homelessness and preventable disease can no longer be treated as though they were intractable social problems or solely the product of natural disasters – they are a human rights scandal.

An activists' task list

Human rights advocates, gathered together in the mid-1990s, identified the following tasks as key to documenting and campaigning for economic, social and cultural rights:²⁰³

• identifying the rights issues of immediate concern to the country or community
• monitoring the state's development of the conditions necessary to ensure economic, social and cultural rights and, in particular, its implementation of related policies, plans and legislation
• monitoring, documenting and reporting on the government's actions in complying with, or violating, its obligations
• observing the government's compliance with recommendations made by international human rights bodies. This would include first-hand collection of facts and evidence from various sources
• ascertaining the availability of legal remedies, and determining their enforceability under national laws. This would involve researching the relevant laws and analysing court decisions related to economic, social and cultural rights claims
• responding to individual or community complaints of violations
• educating the population on their economic, social and cultural rights, and
• mobilizing and collaborating with communities and other organizations in advocacy²⁰⁴
  

Deprivation of rights cannot be blamed on lack of resources alone – invariably they result also from lack of political will and from discrimination. In the wealthiest countries, marginalized groups suffer poverty and injustice. In the poorest, the international community has allowed millions of people to suffer the utmost deprivation.

In many countries, governments hide behind the excuse of lack of resources to fail their people, to deny them the means to realize their rights, and to allow companies and others to act without restriction, even where this means endangering the lives and health of the people.

In response, human rights defenders have documented violations and abuses, and launched imaginative campaigns to change policies and practice. They have sought to improve the lives of all and to defend their right to live with dignity. Economic, social and cultural rights are not just aspirations. They are not goals that can be deferred to the future. They are based in international law and enforced by international and national tribunals in an increasing body of case law. They demand immediate respect.

Governments must refrain from undermining people's efforts to realize their rights. They must stop discriminating against marginalized groups and must actively include the excluded. They must regulate corporations and other non-state actors to ensure that they respect human rights. These obligations do not cease at their borders. They extend to their actions abroad, whether alone or through international financial institutions.

This primer shows what can be achieved by determined campaigning. It makes the case that economic, social and cultural rights are an integral part of the human rights agenda. Promoting and defending economic, social and cultural rights should be an urgent priority, not just for individual governments, but for the international community and the human rights movement and civil society as a whole.

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Endnotes

185 See the exchange between the Executive Directors of Human Rights Watch and of Physicians for Human Rights: Roth, K., "Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization", Human Rights Quarterly 26(1) (2004) 63; and Rubenstein, L. S., "How International Human Rights Organizations Can Advance Economic, Social and Cultural Rights: A Response to Kenneth Roth"; Roth, K., "Response to Leonard S. Rubenstein", and Rubenstein, L. S., "Response by Leonard S. Rubenstein", Human Rights Quarterly 26(4) (2004) 845, 875, 879.
186 Amnesty International, Urgent Action: Mexico, fear for safety (AI Index: AMR 41/029/2004).
187 www.tac.org.za
188 Treatment Action Campaign et al v Minister of Health et al, High Court, Transvaal Province Division, Case No. 21182/2001, http://www.tac.org.za/Documents/MTCTCourtCase/mtctjudgement.doc
189 Presentation of Fatima Hassan of the Treatment Action Campaign to Amnesty International, June 2004; Basu, Sanjay, "The Use Of Anti-trust Litigation For Public Health Advocacy: Lessons From The South African Competition Commission Case", December 2003, http://www.zmag.org/content/showarticle.cfm?ItemID=4773; Treatment Action Campaign, www.tac.org.za
190 See the recent series of manuals on the right to health, the right to food, labour rights and the right to water, published by the Human Rights Documentation Centre (HURIDOCS) and the American Academy for the Advancement of Science (AAAS), http://shr.aaas.org/escr. See also Law Society of Sri Lanka and the Center for Economic and Social Rights, An Activists Manual on the ICESCR, among others.
191 Article 19 (2), ICCPR; 13(1), CRC.
192 Reported in UNDP, Human Development Report 2000, Chapter 4: Rights empowering people in the fight against poverty, p 75.
193 Mander, Harsh, and Joshi, Abha, "The Movement for the Right to Information in India: People's Power for the Control of Corruption", http://www.humanrightsinitiative.org/programs/ai/rti/india/articles/
The%20Movement%20for%20RTI%20in%20India.pdf
194 Roy, Aruna, and Dey, Nikhil, "Fighting for the Right to Know in India", http://www.freedominfo.org/documents/rtiessay.pdf
195 Reliance Petrochemicals Limited v Proprietors of Indian Express Newspapers Bombay Pvt Ltd, AIR 1989 SC 190.
196 www.freedominfo.org/documents/mkss-lo.ppt
197 Robinson, Mary, "Advancing economic, social and cultural rights: the way forward", Human Rights Quarterly 26 (2004)