Chapter 2:
Content of International Standards

As a result of the relative inattention paid to ESC rights over the past several decades,13 activists will find themselves more involved in the process of defining the content of the rights than they generally are in civil and political rights cases or situations. While representing a client or investigating a case, for instance, activists and organizations may often have to undertake research to arrive at a fuller elaboration and deeper understanding of specific standards in order to argue the application of the standards to the specific case. The arguments, in turn, may serve as the basis for a court to make a decision that lends greater precision to the parameters and dimensions of the specific right. This can be a difficult, complex and drawn-out process, but is essential for the development of more precise understandings of the content of ESC rights at the national and international levels.

The building block essential for understanding and defining the content of the rights is study of international standards and documents, national constitutions, as well as interpretations and analyses of these documents. While organizations just entering the field will likely have to devote considerable time to tracking down such documents -- to date, there is not a centralized place where such information has been collected14 -- this is a necessary component of ESC rights work.

Clarifying Human Rights Concepts

In learning about international ESC rights standards, there are some concepts with which activists should be familiar, specifically: core content and minimum core content, state obligation and human rights indicators. These are terms which are widely used, even though there does not yet seem to be a standard use of them. A particularly challenging aspect of ESC activism is developing and maintaining clarity about these terms and communicating this clear understanding to other NGOs, governments, and intergovernmental agencies and bodies. Activists should bear in mind that the concepts are evolving.

Core Content

The core content of a human right refers to the entitlements which make up the right. The core content of an ESC right has both "universal" and "unique" characteristics. The universal characteristics are those which apply to all rights. Non-discrimination is one such "universal" characteristic: no individual may be denied the exercise of any of his or her human rights on the basis of his/her race color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition to "universal" characteristics, certain character-istics of the core content of each ESC right are unique to the specific right. For example, access "to immunization against preventable epidemic or endemic diseases" is a key component of the core content of the right to health,15 but is not applicable to other rights.

Minimum Core Content

A related concept is that of minimum core content. This has been described as the non- negotiable foundation of a right to which all individuals, in all contexts, and under all circumstances are entitled. The minimum core content implies a "floor" below which no government can go regardless of the economic situation in a country (see "state obligation," below). For example, if you are discussing the right to housing, one element of the core content would be legal security of tenure.16 Housing rights advocates maintain that the minimum core content would provide that no one can be legally evicted from his or her home without due process of law and adequate compensation. This should be guaranteed to all citizens regardless of the existence of, for example, an economic downturn or crisis in a country.

It is helpful to remember that the concepts of core content and minimum core content are not unique to ESC rights.17 An example of minimum core content in the area of civil and political rights can be found in the right to freedom from arbitrary detention. One element of the core content of this right is that a warrant for a person's arrest must be obtained by the state and presented to the individual. Another element of the core content is that an individual who is detained cannot be held for an indefinite period of time. In the case of a declared national emergency in which constitutional guarantees are suspended, an individual may be detained without an arrest warrant. However, even in this situation, s/he cannot be held indefinitely. Since the requirement of an arrest warrant can be suspended, this element would not be considered part of the minimum core content of the right to freedom from arbitrary detention. Since, however, s/he cannot be detained indefinitely, even under a state of emergency, that guarantee would be an element of the minimum core content.

The idea of a minimum core content has been challenged out of concern that using the word "minimum" limits the full guarantee of rights by setting a low standard for governments to meet. However, in Health as a Right, Provea has written:

We consider that by establishing a minimum, uniform "floor" below which a state may not descend does not weaken the right in question, provided that the content is understood as a starting point and not as the arrival point. Furthermore, establishing a framework assures a uniform basis to be respected, even by the states with insufficient economic resources or subjected to critical economic situations. 18

The minimum core content, therefore, is not the same as the core content of a right.

State Obligation

In addition to the core and minimum core content of individual entitlements, each human right carries corresponding state obligations. When states ratify international covenants and treaties, they commit themselves to abide by and fulfill the state duties required in the agreement. ESC rights advocates assert that states' obligations comprise the duties to promote, respect, fulfill and protect each right. In the same way that the core content of ESC rights is not yet fully elaborated, considerable work remains to be done to elucidate the nature and extent of state obligations with regard to each right.19 (See box, Defining the Content of Rights, p. 23.)

Indicators

There is a lot of discussion and confusion about human rights indicators. It is not a term that is commonly used in legal fields and in civil and political right work, although for those who come to ESC rights work from such fields as public policy, sociology or health research, the term will not be new. Generally speaking, an indicator is a tool which shows the direction of something or which serves as a sign or symptom. There are many indicators which are already used by various intergovernmental agencies, such as the World Health Organization and the United Nations Development Program, to measure the status of economic and social conditions within countries. These indicators, however, are not exhaustive, nor are they necessarily linked to human rights concepts.20

For our purposes, therefore, we will specify that a human rights indicator is the particular concept used to monitor and evaluate an aspect of a human right.21 For example, related to the provisions of article 12.2.a of the ICESCR,22 one human rights indicator used to measure the enjoyment of the right to health would be the under-five mortality rate. Another indicator related to this article would be the mortality rate due to diseases preventable by vaccination.23

It may be helpful to understand that there are two types of human rights indicators which correspond respectively to the core content of a right and the corresponding state obligations. An outcome indicator refers to the status of individual rights. The examples given above (the under- five mortality rate and the rate of mortality due to preventable disease) are both outcome indicators. A process indicator refers to the status of the state's compliance with its rights obligations. A process indicator related to the same Article 12.2.a would be the implementation by the state on universal immunization of children under one year of age against the main childhood diseases.24 The related data which is collected -- for example, the actual number of babies who have died in a given time period, or the number of clinics providing immunization -- provides information about the indicator.

It is also important that both quantitative and qualitative indicators be developed to assess the state's performance. Quantitative indicators are measured by numerical data. Qualitative indicators examine the quality of the enjoyment of a right or the government's fulfillment of it. For example, qualitative indicators might examine the ways in which the community was involved in the development of a policy or the receptiveness of the court to hearing ESC rights arguments.

Defining the Content of Rights
Concept	Definition	Example
Core content of a right	The specific individual entitle-ments which make up a right	Prevention: all individuals and com- munities have the right to immunization against preventable epidemic or endemic diseases.*
State obligation	The responsibilities of the state to protect, promote, respect and fulfill the entitlements under the right.	The State is to develop health policies in areas of promotion, prevention, treat-ment and rehabilitation.*
Outcome indicators	The concepts or tools used to monitor the status of a specific right.	Infant mortality due to preventable diseases.*
Process indicators	The concepts or tools used to measure the status of the state's human rights obligations.	Level of immunization of children under one year of age against the main childhood diseases.*
Data	The information which fills in the indicator.	Number of babies who have died from preventable diseases; number of clinics providing immunizations.
*Examples elaborated in Provea, Health as a Right, Caracas, 1996.

Elaborating the Contents of Rights

Activists and NGOs are developing their understanding and promotion of the content of specific ESC rights in various ways. Focused study and discussion, a case approach, and a "violations approach" are three strategies that workshop participants described for elaborating the core content of ESC rights.

Focused Study and Discussion

One approach adopted by some groups is deeper study and discussion. Provea,25 for example, has undertaken the ambitious and invaluable task of developing conceptual frameworks for specific ESC rights. It decided to concentrate on the development of frameworks because, it believes, it is difficult to identify a human rights issue or human rights violation until the work of defining and analyzing the standards has been done. Provea chose to focus on those rights which are of particular concern within Venezuela and for which less clear standards currently exist.26 To date it has completed Health as a Right and has also been working, to varying degrees, on frameworks for the rights to food, social security, and land rights.

 

Provea's Work to Develop Human Rights Indicators Provea has found that the focus on indicators has been helpful to its process of clarifying the core content of the right to health and is necessary for the full elaboration of ESC rights. Many health indicators are used by intergovernmental agencies and monitoring bodies, but these are not necessarily linked to human rights concepts. Where indicators already exist, they should be viewed with a critical eye to be sure that they are linked to the content of the rights. Provea also believes that it is important for NGOs to fill in the gaps where indicators do not exist and try to establish as many human rights indicators as are necessary, even if there is not enough available data or information to fill in the indicator. Developing indicators has been one of Provea's most difficult tasks. The process of identifying human rights indicators has been dynamic, involving considerable trial and error. Provea has nonetheless generally followed these steps: 1) Examine the "universal" and "unique" characteristics of the right (See explanation in section on core content, above); 2) Determine what data are already available (in government reports, academic research, NGO reports, etc.); 3) Examine the considerations elaborated by Danilo T�rk, the U.N. Special Rapporteur on the Realization of Economic, Social and Cultural Rights, in his "Preliminary Report" (E/CN.4/Sub.2/1989/19) and identify the main obstacles to using indicators in defining economic and social rights; 4) Evaluate whether or not the indicators measure the identified characteristics; and 5) Compare the indicators selected to those developed by the CESCR for national reports. These reporting guidelines incorporate a broad range of considerations including the resources available to the country, equity within the country, and so on.

Provea's work has been multi-pronged. For instance, on the right to health, Provea studied the international human rights instruments which pertain to health and the Venezuelan Constitution, sought information and analyses collated by other agencies and organizations on the core content of the right to health, gathered information about international and national health policies as well as Venezuelan legislation related to health, started a database of organizations working on health issues, and began to develop health rights indicators. Each year it works to elaborate specific rights and publishes its conceptualizations in the organization's annual report. It has used these frameworks for its general activities, such as lobbying, human rights education, case work, etc.

FLAG has also initiated its work on ESC rights by elaborating the framework for rights. It shares Provea's view that it is difficult to take on cases as rights cases until the rights are defined and elaborated. Currently, FLAG does take individual cases on economic and social issues related, for example, to demolition of houses or anti-squatting actions, but not as rights cases. FLAG has established task forces on the rights to housing, education, health and food 27 to begin the work of identifying the content and state obligations of these rights and corresponding indicators. After the task forces have completed their work, FLAG plans to concentrate on identifying ways that these rights can be enforced and pursued through legal means.

A Case Approach

Individual cases can be used to elucidate the content of ESC rights in many ways. The tactics that organizations choose depend to a large extent on their degree of clarity as to the content of the rights, as well as the availability of judicial remedies and the effectiveness of the legal systems within which they operate. It is not easy to define precisely and fully the ways that a case approach can be employed because the content and methods are evolving. However, two general ways of using this approach are described in the following:

To the extent that an organization has elaborated the core content of a specific right, it can take a case and argue that the government has violated a right based on its understanding of the right. The group may manage to convince the court to acknowledge and confirm a given aspect of the core content and/or state obligations of the right. For example, a group working on housing rights may have come to the conclusion that, with regard to evictions, due process of law and adequate compensation are characteristics of the core content of the right to housing. The group, therefore, would take a case to court to seek redress for a community or family which has been arbitrarily evicted and, in so doing, ask the court to confirm that due process and compensation are aspects of the right to housing.

On the other hand, it is likely that a group may not have so fully elaborated its understanding of the core content. The group may, however, believe that another right can be used to ask the court to set boundaries on the conduct of the government with respect to specific ESC issues. A legal brief may cite international provisions related to participation (as discussed, above) and seek a ruling that the government has violated a community's ESC rights because it did not involve it in the design and implementation of a project having significant impact on economic and social conditions in the community. Although this claim may not help to establish other specific dimensions of the right to land, food, housing or health entitlements, it would help to establish that in the implementation of any project affecting these rights, individuals who will be affected by the project must be involved in the process of establishing the need for a project, designing it and evaluating its implementation.

Monitoring complaints and legal cases can also be a way to identify patterns from which it may be inferred that a government policy exists which violates a right, or conversely, that the absence of a policy violates a right. Legal aid programs, social service and development projects are prime foci for this approach. Through comparison and analysis of the issues and claims members of the community bring to such organizations, practitioners can identify patterns of abuse and understand the relationship of state actors to the problem and issue at hand. For instance, a given legal aid program may note an increase in the incidence of clients seeking redress for evictions from their homes. It may perceive patterns related to how or where clients have been evicted which, in turn, may point to a lack of a government policy or protection of the right to housing. The pursuit and analysis of individual cases therefore can be a means for identifying aspects of the core content of rights which need to be more fully examined and elaborated.

"Violations Approach"

Another approach organizations have used is what some workshop participants referred to as the "violations approach" but, given a narrower use of the term "violation", would perhaps be better described as an emphasis on collecting information about and monitoring egregious and blatant governmental actions.28 The appeal of a "violations approach" arises largely from the fact that ESC rights to date are not very well elaborated and thus there is little understanding of what constitutes a violation. If organizations and activists start by focusing on the worst possible situations, it should be easier to get public or legal acknowledgment that the situation involves a "violation". Such an acknowledgment begins to give some broad shape to the right and helps to build international acknowledgment of ESC rights.

A critique to this approach asserts that its focus on blatant actions, such as mass demolitions of homes or forced displacement, de-emphasizes other less obvious actions or lack of action by a government which may involve serious human rights violations. It may also hinder the development of a more complex understanding of what constitutes an ESC rights violation.

Other Human Rights Standards and Principles that May Be Used to Seek the Realization of ESC Rights

Where the core content of a specific right has not been determined, other human rights standards and provisions may be used to seek the realization of ESC rights. Workshop participants discussed the use of guarantees related to participation and non-discrimination as well as the requirement of progressive realization of ESC rights (Article 2 of the ICESCR) as possible tools.

Non-Discrimination

Article 2.2 of the International Covenant on Economic, Social and Cultural Rights states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In cases where the government has apparently acted in a discriminatory manner, or condoned discriminatory actions, in economic, social and cultural spheres, activists may be able to base an ESC rights claim on the principle of non-discrimination even when the specific entitlements of a right are not clearly established. For example, the Galilee Society29 took a case to the International Water Tribunal claiming that Israel was deliberately not connecting "unrecognized villages" to the national drinking water network, to which neighboring Jewish communities had access, as part of its Planning and Building Law. The Galilee Society was able to demonstrate that an outbreak of hepatitis in the Arab communities was a result of inadequate water and sanitation, and thus argued that Israel's denial of water was a violation of the villagers' right to health. Although the precise nature of a government's obligations to provide adequate water and sanitation has not been determined30 , this right to health claim was successful based on its ability to convince the jury that the non-recognition of the Arab villages and denial of water to them was unjustifiable.

The Caribbean Initiative on Equality and Non-Discrimination, uses international standards which have been developed for "vulnerable sectors"-- groups which experience wide-scale discrimination, such as children, women and indigenous populations.31 The international standards pertaining to these populations32 include provisions for equality and non-discrimination and were developed primarily because it was recognized that wide-scale, and historical discrimination against these groups merit particular protection.

Participation and Freedom of Information

Communities can and should be involved with the formulation and implementation of policies, programs, budgets, legislation and other activities relating to their rights, because there is a greater likelihood that these will be more effective in meeting the community's needs if designed and implemented with its involvement. First and foremost, however, communities should be involved because participation is a human right. Article 25.a of the International Covenant on Civil and Political Rights (ICCPR) states:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [related to non-discrimination] and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives...

While the right to participation is included in the ICCPR, it is clearly connected to all human rights, and is specifically applicable to ESC rights.33 Paragraph 11 of the Limburg Principles states:

A concerted national effort to invoke the full participation of all sectors of society is...indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies.

Thus communities can claim their right to participate in the discussions and decision-making on governmental policies and plans in economic, social and cultural spheres.34

In a situation where the core content of a right has not been determined, it may be possible for a rights claim to be made in court, through an administrative channel or other judicial or quasi-judicial fora based on the argument that the right to participation has been violated. For example, a group may argue that the design and implementation of a large-scale development project such as a hydroelectric dam -- which would involve relocation of communities and affect their access to land, water and other resources -- did not involve the communities which would be most immediately and directly affected by it. In this way, the core content of the specific rights (for example, the rights to land, food, housing, health) would not be elaborated, but the rights could be promoted through a ruling which would require the participation of the community.

True and effective participation depends upon the level to which communities and those involved in a process are aware and informed about issues, problems and potential solutions. Access to timely and accurate information on the availability and distribution of resources, potential plans and policies, as well as decision-making processes is, therefore, a prerequisite for participation. Recognition of the human right to access to information is found in Article 19 of the ICCPR.

A community-based organization in India points out that, although Article 19 has generally been embraced by intellectual and political elites because of its relationship to freedom of expression, its provisions for access to information can and ought to be used to protect the rights of the poor and dispossessed to participate in public processes which affect their lives.

The transparency in the state development expenditure would facilitate an informed debate on the mode of development. By selective release of information, a minority elite group defines the destiny of millions of citizens. By controlling the information flow, it also provides numerous avenues for corrupt practices. The transparency and social audit of development expenditure by empowering the people also strengthens participative democracy in the nation. 35

Thus, freedom of information is closely tied to Article 25 of the ICCPR on participation. 36

In the recent process of drafting and adopting the new South African Constitution, the Legal Resources Centre37 lobbied for the inclusion of provisions on access to information, recognizing the critical role that such access will play in the ability of citizens to take part in the conduct of economic, social, civil, political and cultural affairs. Though only a few organizations seem to have significant experience in advocating for access to information, the right to participation, specifically in the formulation of policies and legislation related to ESC rights, is dependent to a large extent on securing the right to information on matters affecting public affairs.

Progressive Realization

Provisions for the progressive realization of ESC rights found in Article 2 of the International Covenant on Economic, Social and Cultural Rights may be used as a tool for advancing the protection and promotion of ESC rights even where the core content of the rights has not yet been fully clarified38. Article 2.1 states:

Each state party to the present Covenant undertakes to take steps individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means including in particular the adoption of legislative measures.

The phrase "to the maximum of available resources" allows for a difference among countries in the nature and extent of ESC policies, programs and services. The Limburg Principles state that "the economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures." The Limburg Principles go on to explain that the "obligation of progressive realization exists independently of the increase in resources" and therefore applies in all countries, regardless of the level of economic development. 39

The differences in economic and political systems and available resources among countries poses a challenge to establishing ESC standards which can be internationally recognized. One way that the Committee on Economic Social and Cultural Rights has approached this challenge is by adopting a method for assessing the periodic reports states parties to the Covenant are required to submit. The CESCR uses the information on the policies, legislation, programs and services a government details in its initial report to the Committee to help establish a baseline by which to assess the progressive realization of the rights as reported in subsequent periodic reports. The Committee urges state parties to describe goals and specific "bench-marks" for the policies they detail in their reports to help assess its performance related to these policies in subsequent reports. 40

By monitoring the status of legislation and policies designed to meet the economic and social needs of a country's populations, activists may be able to identify and demonstrate cases where the repeal of legislation or cutting a budget related to social programs would be a regressive act. Such acts or omissions may be considered a violation of the state's ossbligation to progressively implement measures for the fulfillment of ESC rights.

Tenure takes a variety of forms...Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups.

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