Chapter 1: General Principles for ESC Rights Activism

The Emergence of a Rights Approach

Why is economic, social and cultural rights activism a relatively undeveloped phenomenon? Why are so many organizations only now turning their attention to the possibility of utilizing a rights approach to addressing long-standing problems of poverty, starvation and malnutrition, homeless- ness, forced evictions, and other ills?

Generally, two broad factors have contributed to the growing interest and capacities of NGOs and activists to address economic and social issues using a rights approach. One is the maturation of the human rights movement. Many local, national, regional and international human rights organizations have emerged around the world. Through years of focused activism, these organizations have gained invaluable experience in analyzing and understanding international standards and mechanisms (primarily in the civil and political rights field) and utilizing a range of advocacy tools in their advancement of a human rights approach to societal issues.

The second important ingredient was the convergence of widespread poverty and increasing inequality with the end of the Cold War. Following the end of dictatorships in a number of Latin American countries, the freeing of most political prisoners in Eastern Europe, and the end of apartheid in South Africa, deteriorating economic and social problems began to claim the attention of activists in these regions and globally. Roots of the present deterioration in economic and social conditions can be found in the late 1970's, when Third World countries faced growing foreign debt. Structural adjustment policies (SAPs) and conditions to promote the development of "free market economies", imposed by international financial institutions and lending countries, gained ground with the end of the Cold War and the disappearance of the East-West ideological debate.

Along with the easing of the latter tensions, many human rights organizations felt freer to explore ESC rights concerns arising out of endemic poverty and inequality exacerbated by the mentioned policies. Many activists had accumulated experience and tools that better enabled them to begin to address economic and social problems as rights issues.

What Has Motivated Some Groups to Use a Rights Approach?

Venezuela is an oil-rich country. For many years, due to increased national wealth created by oil revenue, the government expanded social programs, and provided better infrastructure and services than the citizens had previously enjoyed. The population generally viewed these services and programs as "gifts," generous offerings from the government as a result of the bounty from oil. When oil prices dropped, oil revenues diminished and foreign debt increased. In reaction to this crisis, the government cut many programs and services. Venezuelans did not clamor to maintain them because they had considered them gifts. Human rights activists have begun to elaborate a framework for understanding these problems and services from a rights perspective, and to popularize the idea that the government has certain ESC rights obligations, which include the development of policies and implementation of programs in the social, economic and cultural spheres, which cannot be derogated from despite the changed economic conditions.
Nigeria is also an oil-rich country, but the population of approximately 100 million reaps little benefit from oil revenue which is siphoned away to enrich a few. The country is governed by a military dictatorship characterized by outrageous corruption and severe political and civil repression. Over the past several years, the majority of human rights and legal aid organizations have focused on addressing the abundant violations of civil and political rights: arbitrary detention, torture, censoring of the press, and so on. At the same time, poverty throughout the country is intensifying. Schools and universities are often closed because professors are on strike to demand better facilities. Large-scale, forced evictions of squatter communities occur regularly in Lagos, Nigeria's largest city. Many rivers and arable lands have become gravely polluted from the process of oil extraction. Some human rights and community activists are beginning to examine and expose these problems through the lens of human rights and to expose the role and responsibility of the government in these situations.
The Caribbean Initiative on Equality and Non-Discrimination (the Initiative) had its origins in Guyana in 1992. As a result of a democratic transition, sufficient political space emerged to allow human rights activists to address a broader range of issues than had been the case under previous dictatorial conditions. Activists felt that maintenance of the human rights movement's credibility in the region required an effective response to poverty and adverse life conditions faced by communities throughout the Caribbean. The Initiative has begun to use international human rights standards in work with development organizations and government agencies to help define and shape economic and social policies.
The Galilee Society, the Arab National Society for Health Research and Services was founded in 1981 by a group of local Arab health professionals to address numerous health and sanitation problems of Arabs in the Galilee; its activities and membership have since expanded to cover the Arab population within Israel. The Society initially sought to complement the work of agencies emphasizing curative health services in urban areas, often overlooking problems faced by rural Arab communities, and to publicize health problems of Arabs to Israeli authorities. The Society became increasingly aware of the discriminatory impact of governmental health and sanitation policies and felt compelled to protest them. Through collaboration with activists experienced with international human rights law, the organization began to integrate human rights standards into its work, and developed an advocacy position within the health field, working for equal rights of the Arab population. The Society now focuses on advocacy and community empowerment. It provides emergency health services only in urgent cases, avoiding direct service provision in those areas where the government is legally responsible.

The Rights Framework and Approach

Analyzing societal issues and problems through a rights framework and using a rights approach to tackle them are powerful means of advancing a vision for a just world.

The Rights Framework

Individuals are the holders of economic, social, political, civil and cultural rights. Governments have corresponding obligations to respect, promote, protect and fulfill these rights. The legal and normative standards for the character of the rights and associated governmental obligations are based on international covenants, treaties, conventions, declarations and recom-mendations and in national constitutional provisions for human rights.

The Rights Approach

The rights approach uses international human rights norms and treaties to hold governments accountable for their obligations. The rights approach can be integrated into any number of advocacy strategies and tools, including monitoring, community education and mobilization, litigation, legislative advocacy and policy formulation. Guiding Principles of a Rights Approach to ESC Rights Activism

Guiding Principles of a Rights Approach to ESC Rights Activism

Human Rights are Interdependent and Indivisible

It is important that ESC rights activists consistently affirm that all human rights are interdependent and indivisible. It is critical that all human rights be recognized as essential to human survival and dignity. Advocacy for economic, social and cultural rights should not fall into its own trap of perpetuating the dichotomy that was exacerbated by Cold War tensions. Focusing on economic, social and cultural rights does not mean that these rights are more important than, or independent from, civil and political rights. They warrant specific focus because they have been ignored for so long, and so little work has been done to elaborate and popularize these rights as human rights.

ESC Rights Apply to All Individuals on the Basis of Equality and Non-Discrimination

All human rights work is grounded on the principle that each and every human right belongs to each individual on the basis of equality and non-discrimination. Although we may not yet be able to evaluate the full extent to which people can exercise certain ESC rights or the precise level of government compliance with its obligations, we can nonetheless identify areas where groups have unequal access to specific government-provided economic and social resources or services. In cases where that unequal access is the result of discriminatory policies and practices, an ESC activist may be able to base a rights claim on the principle of equality and non-discrimination. (This is discussed further in Chapter 2: Content of International Standards.)

ESC Rights Denote Certain Governmental Obligations

As indicated in the description of the Rights Framework, individuals are the holders of human rights and governments have related obligations to respect, promote, protect and fulfill human rights. The legal and normative standards for the character of the rights and the associated governmental obligations are based in international covenants, treaties, conventions, declarations and recommendations and in related constitutional provisions. By ratifying international human rights treaties, states agree to be accountable to one another, as well as to their citizens, for the fulfillment of their obligations. A central principle in using a human rights approach to advocacy is the consistent assertion that states are accountable for their obligations under international law and within national constitutional frameworks.

There are many non-state actors that affect human rights. These actors and issues must be addressed if human rights are ever going to be universally respected, though the extent to which international law does and should apply to non-state actors is an unsettled question which needs to be more clearly defined. Even while questions such as these are explored, however, there is a great deal to be done to determine the content of specific rights and hold governments accountable for their obligations.

ESC Rights Are Justiciable

Closely linked to the process of claiming a right is the issue of justiciability. Something which is justiciable is "capable of being decided by legal principles or by a court of justice." The question of whether ESC rights are justiciable is one of the least clearly understood and most hotly debated issues in the literature on ESC rights. Most courts around the world are reluctant to make rulings on ESC rights. They generally defer to the policy makers and politicians, hesitant to "step on the toes" of those they believe to be the rightful decision-makers on these matters. They refuse to explore the legal terrain of ESC rights in which there are few precedents.

This reluctance or refusal is often cited as evidence that ESC rights are not justiciable; that is, if courts will not take a case, it must mean that the issues raised are not suitable for a legal ruling. However, workshop participants concurred in the view that the failure of courts to rule on ESC rights does not mean that the rights are not justiciable. ESC rights are justiciable; that is, they are capable of being decided by courts or other quasi-judicial fora using internationally-recognized legal principles and agreements. The courts of countries which have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) could, for example, use Article 2 of the Covenant which mandates progressive implementation of measures -- including legislative measures -- to rule that the repeal of a mandated program which has enabled the population to reach a certain level of health or education is not permissible under the country's international agreements. The question of justiciability is one of political will and legal creativity. It was agreed by workshop participants that activists should bear this in mind at all times and consistently affirm that ESC rights are justiciable.

Ripple in Still Water does not attempt to review or critique the many arguments related to the justiciability of ESC rights. However Chapters 6 and 7 explore the issue of justiciability a bit further.

ESC Rights Can and Should Be Claimed

Through ratification of international treaties and by virtue of customary international law, states have responsibilities to uphold and fulfill human rights. When individuals cannot exercise what they understand and believe is their right, activists and organizations can encourage and help them to claim the right through judicial and administrative channels, or by other means -- demonstrations, civil disobedience, etc. -- where an established mechanism does not exist.

The Centre for Equality Rights in Accommodation (CERA) in Canada has come to understand,

the ability to claim the right is central to the concept and reality of economic and social rights....The Canadian understanding of human rights is that rights are things that can be claimed through some sort of judicial or quasi-judicial process. It is, therefore, that process that the anti-poverty groups focus on. 9

Guiding Principles of a Rights Approach to ESC Rights Activism

Human rights are interdependent and indivisible rights:
ESC Rights:

apply to all individuals on the basis of equality and non- discrimination

denote certain governmental obligations

are justiciable

can and should be claimed

The process of staking a claim not only asserts an individual's ownership of his or her entitlement, it also helps to define the content of the right and raise awareness that what has been claimed is a right and not a privilege. The process of claiming a right can alert the government to its responsibilities and put pressure on the authorities to meet their obligations.

Guidelines for Activism

ESC rights activism should be characterized by qualities common to all good human rights activism and should be understood within and informed by the historical development of the human rights movement. In particular, activism should be:

- participatory
- impartial
- non-defensive
- perseverant and tenacious
- cooperative and collaborative.

Participation in the conduct of public affairs is a human right.10 It has also been recognized by various intergovernmental organizations, including the United Nations Development Program (UNDP), the World Health Organization (WHO), and the World Bank, as a critical component of the successful design, implementation and evaluation of social and economic programs. In its Human Development Report 1991, UNDP writes:

An essential part of any political process to benefit the poor is a high degree of participation. Encouraging the autonomy of citizens is, indeed, an end in itself. And participation is a means to ensure the efficient provision and more equitable distribution of goods and services. If people are involved in decision-making, policies and projects tend to be more realistic, more pragmatic and more sustainable. 11

Such policy statements acknowledge that participation is essential to the effectiveness of programs geared towards the development of societies. Likewise, ESC rights activism will be effective to the extent that it involves communities and affected groups in identifying problems to address, setting goals, priorities and strategies for doing so as well as implementing, evaluating and modifying these activities. By involving the community in this fashion, activists will serve as a more effective "microphone" for the community in amplifying the needs, experience and vision expressed by or elicited from it.

Impartiality is a central principle to all human rights work. Human rights activists with long experience caution that it is very easy for human rights organizations to be drawn into taking politically partisan positions. The appropriate role for a human rights activist is one of assessing policies and practices of governments and political parties of all persuasions on an impartial basis. This is as true for economic, social and cultural rights work as it is for work on civil and political rights. Critical analyses of economic and social policies and programs using a human rights approach should avoid identifying specific policies as "pro" or "anti" human rights in the absence of well- documented evidence of the impact of a policy on the ESC rights of individuals.

For example, recent international political consensus links the introduction of multi-party political systems, respect for human rights, and free-market economies under the general heading of "good governance," thereby implicitly linking respect for human rights with a free-market economy. Conversely, some critics of structural adjustment programs maintain that such policies violate human rights. The linkage -- whether positive or negative -- of human rights to a single economic doctrine or policy will impede the ability of human rights groups to impartially monitor and assess the concrete impact of these policies on human beings. In other words, human rights groups should not align themselves for or against specific economic and social policies, but rather should take as their starting point the human impact of any and all policies.

An attitude of non-defensiveness is important in undertaking ESC rights activism. Addressing ESC rights means challenging structures and interests which govern resource allocation and perpetuate poverty. When demands are made for redistribution of resources, many interests are threatened. It is important that activists be aware of the implications of using a rights approach, particularly in the current global political economy. Efforts to utilize a rights framework to analyze and advocate for changes in government policies or to regulate business practices may be attacked as "anti-free market" or promoting "big government."

One of the greatest obstacles activists face is the commonly held misconception -- often promulgated for ideological reasons and in furtherance of economic interests -- that economic, social and cultural rights fall into the realm of needs, preferences or desires. Critics point to the broad, relatively vague language related to ESC rights in the International Bill of Human Rights, and argue that they could not be guaranteed rights because it is not possible to know what they mean. These rights are not understood as guarantees of certain qualities of life and access to resources to which all people are entitled.

Activists should stress the similarities of ESC rights work to civil and political rights work as well as learn the history of the International Bill of Human Rights and the elaboration of civil and political rights norms, so that they feel comfortable in explaining why ESC guarantees embody rights. When the Universal Declaration of Human Rights was adopted in 1948, the international community was not clear about what constituted torture, or what differentiated torture from cruel, inhuman and degrading treatment or punishment. However, because of the greater attention afforded civil and political rights over the years, the specific content and meaning of the right to be free from torture (as well as other civil and political rights) have been clarified through extensive case studies, debates, research and analysis. Acknowledgment that progress in developing similarly elaborated understandings in economic, social and cultural rights will likewise take a long time may help activists to be perseverant and tenacious in this challenging work. (See box.)

Example: FLAG's Perseverance and Tenacity

Under its Economic, Social and Cultural Rights Program, the Free Legal Assistance Group (FLAG) established four rights-specific task forces on what it calls "the rights of survival", those rights which are inextricably linked to the right to personal security: the rights to housing, health, education, and food. Each task force was directed to 1) identify the issues and problems within the Philippine context which had to be addressed and reconciled in relation to the right in question, 2) define the right and the absolute minimum entitlements which spring from it, 3) identify the state obligations for the right, and 4) develop indicators for measuring the state's performance. FLAG planned for each task force to complete its work within one year. In practice, however, the process has been much slower. As of July 1996, the Task Force on the Right to Housing, for instance, had already been working for over a year and had achieved only a portion of what it intended. During that year, it identified eleven issues/problems that must be resolved to arrive at a definition of the right to housing and of these eleven, it had agreed on the content of just two issues: legal security of tenure and availability of basic service resettlement sites.
Reflections on the Housing Task Force's development led FLAG to alter the time lines for work in order to preserve some of the processes which have contributed to its success. For example, FLAG had invited a diverse range of people to sit on the task force and tensions inherent to such diversity quickly surfaced. FLAG is committed to working with all groups regardless of political persuasion. It believes that the different perspectives should be discussed openly, and that "codes of conduct" should be developed by the group to allow for such discussion, despite the amount of time it takes to do so. FLAG also learned that most task force members did not have a human rights perspective on housing issues. It took time to inform them about the rights framework and to come to some common understanding of what is meant by a "right." Though time-consuming, the educational process is consistent with FLAG's overall philosophy and approach to structural change.

Important to all human rights work is effective collaboration and cooperation. When the common goal is well-defined, working in coalitions on specific campaigns, projects or long-term programs strengthens the impact of an organization's work, expands its pool of resources and avenues of influence, and broadens its perspective.12 Cooperation and collaboration are particularly important to ESC rights activism because a range of knowledge and expertise is needed to help groups elaborate on the core concepts of most of the rights. Development and other organizations have often worked more closely with affected groups and victims of economic, social and cultural rights abuses than have human rights groups and thus have very valuable information and access. Drawing on the expertise of individuals and other groups not associated with an organization can also deepen the latter's understanding of the issues and problems involved. For example, a human rights group initiating work in an area such as health care or economic development can enhance its skills and capacity by involving health professionals and others working in the field; they can, in the process, share human rights concepts with these individuals and groups. Collaboration can take place within local, national and international spheres. Local and national human rights groups may also find that developing contacts with international-level human rights organizations is very helpful. Such contacts can broaden the resources available to the groups, bring in valuable experience from other countries and assist in the process of mobilizing international pressure.

Collaboration between National and International Organizations

Oil development in the Ecuadorian Amazon over the last three years has caused massive environmental, social, and cultural harms, much of it related to the dumping and spilling of toxic materials into community water sources. Local indigenous, environmental and settler groups have organized to press for enforcement of environmental safeguards, remediation of past damages, and more participatory and sustainable development practices. The groups have sought support from NGOs and experts from outside of Ecuador to enhance their scientific and legal position and to increase the pressure on the oil industry, the development banks, and government agencies. One such NGO, the New York-based Center for Economic and Social Rights (CESR) works with local and international advocates and scientists to facilitate North-South and inter-disciplinary coalitions to address a broad range of issues involved in promoting ESC rights. In 1993, CESR organized a fact- finding mission of doctors and environmental scientists to measure the levels of contamination and health impacts related to oil development in certain Amazon communities. Based on the results of the scientific study, CESR worked closely with the Ecuadorian groups to prepare and release a report on violations of the right to health and the right to a healthy environment. The report was used in an international campaign to pressure the government and multinational oil companies to reform existing practices and to create a more transparent and participatory framework for further development and protection of the Amazon. Following the report, CESR has helped local groups do outreach and education among Amazon communities regarding their rights in respect to industrial development. The efforts of these local groups has led to the establishment of a network of community advocates to oversee and report on industrial activities and human rights violations, in coordination with international NGOs like CESR.

9. Quoate from IHRIP interview with Broce Porter of the Centre for Equality Rights Accommodation

10. Article 25.a of the Internaional Covenant of Cinivl and Political Rights states: "Every citizen shall have the right and opportunity, without any of hte distinctions mentioned in article 2 and without reasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives. . ."

11. United Nations Development Program, Human Development Report 1991, New York, 1991. p. 71.