Training Manual on Human Rights Monitoring - Chapter XVII: Monitoring Economic, Social and Cultural Rights
CONTENTS
A. Introduction
1. UN Charter
2. Universal Declaration of Human Rights
3. International Covenant on Economic, Social and Cultural Rights
C. An approach to monitoring economic, social and cultural rights in field operations
1. Consequences of violations of economic, social and cultural rights
2. Possible measures by the human rights field operation
3. Assisting the Government to assess and meet needs
4. Test cases
5. Common misconceptions about economic and social rights
A. Introduction
1. Human rights field operations are occasionally given a broad mandate to promote and protect all human rights. Indeed, the High Commissioner for Human Rights has principal responsibility for UN activities to implement all human rights, including "[p]romoting and protecting the effective enjoyment by all of all civil, cultural, economic, political and social rights." (1)
2. Despite the High Commissioner's broad mandate and the significance of all human rights, several human rights field operations with a similarly broad mandate have given a higher priority to promoting economic, social, and cultural rights than to monitoring those rights. There are several economic rights, such as the right to be free from forced eviction, which have received greater attention in monitoring. This Chapter provides a basic introduction to economic, social and cultural rights and then discusses some of the issues which arise in regard to the priority given to monitoring those rights. See also Chapter IV-I "Right to Property" and J "Right to Housing and Other Economic, Social and Cultural Rights".
B. Summary of economic, social and cultural rights
3. Article 55 of the UN Charter prescribes that:
the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and development;
b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
In Article 56, all members pledge "to take joint and separate action in cooperation with the [United Nations] for the achievement of the purposes set forth in Article 55."
2. Universal Declaration of Human Rights
4. The 1948 Universal Declaration of Human Rights added specificity to those goals. In its Article 22, the General Assembly proclaimed that
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international cooperation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
The Declaration also proclaims that everyone has the right to: work and join trade unions (Article 23), rest and leisure (Article 24), an adequate standard of living (Article 25), education (Article 26), and participate freely in cultural life (Article 27).
3. International Covenant on Economic, Social and Cultural Rights
a. Nature of State obligations under the Covenant
5. Though the earlier agreements broadly defined the scope of economic, social and cultural rights, the principal source of international obligations now is the International Covenant on Economic, Social and Cultural Rights (2).
6. Article 2(1) of the Economic Covenant contains the basic obligation of all governments which ratify that treaty; it reads as follows:
Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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 particularly the adoption of legislative measures.
7. While the Economic and Social Rights Covenant does not require a Government immediately to feed, clothe, and house its residents, it does require that the Government take steps towards the full realization of those economic, social and cultural rights and certainly a Government would likely violate the Covenant if it took measures which would diminish those rights. (3) The Covenant also forbids discrimination in regard to economic, social and cultural rights on the basis of "race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status."
b. Rights guaranteed by the Covenant
8. The Covenant provides for such specific rights as the
-- "equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the . . . Covenant"(Art. 3);
-- "right of everyone to the opportunity to gain his[/her] living by work which [s/]he freely chooses or accepts" (Art 6);
-- "right of everyone to the enjoyment of just and favourable conditions of work" including "[f]air wages and equal remuneration for work of equal value"; "a decent living for themselves and their families"; [s]afe and healthy working conditions";
"[e]qual opportunity for everyone to be promoted" in employment; "[r]est, leisure and reasonable limitation of working hours and periodic holidays with pay" (Art. 7);
-- "right of everyone to form trade unions and join the trade union of his[/her] choice"; the right of trade unions to establish national and international federations or confederations; the "right of trade unions to function freely"; and the "right to strike"
(Art. 8);
-- "right of everyone to social security, including social insurance" (Art. 9);
-- "widest possible protection and assistance . . . to the family"; "[m]arriage must be entered into with the free consent of the intending spouses; "[s]pecial protection . . . to mothers during a reasonable period before and after childbirth"; "[s]pecial measures of protection and assistance . . . of all children and young persons without any discrimination for reasons of parentage or other conditions"; "[c]hildren and young persons should be protected from economic and social exploitation[,] . . . employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal development . . . [and] child labour" (Art. 10);
-- "right of everyone to an adequate standard of living for [him/herself and his/her]
family, including adequate food, clothing and housing, and to the continuous improvement of living conditions"; "right of everyone to be free from hunger"; to "improve methods of production, conservation and distribution of food"; "to ensure an equitable distribution of world food supplies in relation to need" (Art. 11);
-- "right of everyone to the enjoyment of the highest attainable standard of physical and mental health"; "reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child"; "improvement of all aspects of environmental and industrial hygiene;" "prevention, treatment and control of epidemic, endemic, occupational and other diseases;" "creation of conditions which would assure to all medical service and medical attention in the event of sickness" (Art. 12);
-- "right of everyone to education . . . to the full development of the human personality and the sense of its dignity, and [to] strengthen the respect for human rights and fundamental freedoms; [to] enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace"; "[p]rimary education shall be compulsory and available free to all;" "[s]econdary education . . . [and] "[h]igher education shall be made equally accessible to all by the progressive introduction of free education;" "development of a system of schools at all levels . . . an adequate fellowship system . . . and the material conditions of teaching staff"; "liberty of parents and, when applicable, legal guardians to choose for their children schools, other than those established by the public authorities" (Art. 13);
-- "right of everyone: [to] take part in cultural life; . . . enjoy the benefits of scientific progress . . . ; benefit from the protection of the moral and material interests resulting from . . . author[ship]"; "conservation, the development and the diffusion of science and culture"; "freedom indispensable for scientific and creative activity"; "encouragement and development of international contacts and co-operation in the scientific and cultural fields. (Art. 15)
9. The Committee on Economic, Social and Cultural Rights has been established by the Economic and Social Council to implement the Covenant. The Committee has issued several General Comments indicating how it interprets the provisions of the treaty. For example, the Committee, interpreting States obligations under the Covenant has declared that States parties have a "minimum core obligation to ensure the satisfaction of each of, at the very least, minimum essential levels of each of the rights". (4) A State party that is unable to fulfil this obligation must "demonstrate that every effort has been made to use all resources at its disposition in an effort to satisfy as a matter of priority those minimum obligations".
10. Chapter III, P "Other Economic, Social and Cultural Rights" provides a sample of the Committee's approach in its General Comments, for example, as to the right to adequate housing.
4. Declaration on the Right to Development
11. The UN General Assembly has also adopted the Declaration on the Right to Development (5), which provides in Article 1: "The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. . . ." Article 2 states, "The human person is the central subject of development and should be the active participant and beneficiary of the right to development. . . ."
The Vienna Declaration and Programme of Action (6) "reaffirms the right to development, as established in the Declaration on the Right to Development, as a universal and inalienable right and an integral part of fundamental human rights. . . . While development facilitates the enjoyment of all human rights, the lack of development may not be invoked to justify the abridgement of internationally recognized human rights."
C. An approach to monitoring economic, social, and cultural rights in field operations
12. Human rights field operations have given a lower priority to monitoring economic, social and cultural rights principally because they (1) have been faced with political killings, disappearances, torture, widespread detention, and other issues which seemed to require more immediate attention; (2) have considered economic rights to be susceptible of only long-term resolution while some of the more serious violations of the rights of personal integrity were capable of more prompt action; and (3) have been quite concerned about the magnitude of economic problems and the difficulties of knowing where to begin improving the economic situation of very poor people or of resolving a myriad of complicated property disputes.
1. Consequences of violations of economic, social and cultural rights
13. There are important reasons and occasions for human rights operations to consider the usefulness of establishing monitoring and promotion activities related to economic, social and cultural rights. First, there are some economic, social and cultural rights which may go to the core of the ethnic violence and other grave human rights violations which face some human rights operations. For example, when the members of a farming family are removed from their ancestral lands because of their ethnic background, grievances arise which can erupt into violence and other instances of ethnic discrimination. When workers are removed from their employment because of discrimination and "ethnic cleansing", there are very serious consequences for the workers and their families. In such situations not only are economic rights implicated but so is the fundamental right to be free from discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status -- which is guaranteed by the Covenant on Civil and Political Rights, Art. 26, and by the Covenant on Economic, Social and Cultural Rights, Art. 2.
Indeed, violations of economic rights, such as the destruction of food as a weapon in armed conflict or other violations of the right of everyone to an adequate standard of living, including adequate food, clothing, health, and housing can have consequences as serious as many violations of civil and political rights. Further, since problems of economic, social and cultural rights may be in the forefront of the concerns of the majority of people in the country where the operation is located, it is important for the operation to take action on those concerns. To do otherwise would make the field operation appear indifferent and therefore less credible.
2. Possible measures by the human rights field operation
14. Second, while most problems of economic rights may be principally susceptible of long-term approaches, there are some more immediate measures which can and should be taken by human rights operations. One important and relatively direct response to issues of economic rights is to acknowledge that they are rights and thus should be included in programmes of human rights promotion and education. Even if economic, social and cultural rights were unfortunately not included within the particular mandate of the human rights field operation as established by UN action or by agreement with the Government, the operation should still acknowledge that rights not within the terms of reference are human rights deserving of respect and attention.
15. If the mandate of the operation includes the promotion and protection of human rights, the field operation should consider what steps it can take to implement those rights. Taking more concrete actions on economic rights, however, raises the third difficulty of knowing where to begin in the face of such complex, widespread, and often difficult problems. Human rights field operations are not generally equipped to provide immediate food, clothing, and shelter, etc. to individuals at risk. Human rights operations can identify where there are individuals at risk and can encourage governments and international humanitarian assistance organizations to focus their resources on those particular problems. To the extent that the human rights field operation may be one of the few international presences on the ground in some locations, they can serve a very important function in identifying humanitarian crises and calling for needed assistance.
3. Assisting the Government to assess and meet needs
16. If a human rights field operation decides to pursue its mandate to monitor economic, social and cultural rights more intensively, HROs could assist the Government in developing a needs assessment in regard to the economic, social and cultural problems which are facing the country. For example, how many children are being denied their right to free primary education. With such a needs assessment, the Government should be encouraged to ensure that it refrain from taking actions which violate economic, social, and cultural rights, that it stop others from violating those rights, and that it devote its resources to fulfilling its responsibilities. HROs might assist by helping the Government to develop cost estimates and plans for meeting its responsibilities. HROs might assist by helping the Government to develop cost estimates and plans for meeting its responsibilities. With such a needs assessment in mind, a human rights field operation might discourage the Government from taking deliberately retrogressive measures. Stated more positively, the human rights field operation could encourage the Government to meet its "minimum core obligation", that is, to assure that its residents do not need to survive below the threshold of decency -- through the use of its own resources and through receiving international assistance.
17. Another approach a human rights operation might take to monitoring economic, social and cultural rights would be to review the compliance of national legislation with international obligations; provide assistance in redrafting laws to comply with those obligations; provide training to Government officials, lawyers, and others to implement the obligations; help develop cost estimates for the needs; and assist with applications for international assistance.
18. There are several economic rights problems which may be of particular concern to a human rights field operation. Two relatively visible and unfortunately quite common problems are discrimination in employment and forced evictions. In dealing with those violations, human rights field operations might use a test case approach rather than becoming overwhelmed with the sheer magnitude of the problems. The field operation should identify particular cases which are (1) very visible, (2) very clear in regard to the facts and rights at stake, and (3) apparently susceptible of successful intervention.
19. For example, a lead worker in a factory is dismissed because he belongs to an ethnic minority. The dismissal has received a great deal of publicity in the community and is perceived to be a leading example of ethnic cleansing. No other plausible explanation exists for the dismissal. The factory is run by individuals closely associated with the ruling powers within the Government, and with whom the field operation has previously had good contacts. Or there exist reasonably reliable legal recourse for the dismissal which can be invoked. If the human rights field operation can help to reinstate this individual, it will have a very significant demonstration effect in regard to other cases or in preventing further dismissals on ethnic grounds. That is, once the HROs have a visible success regarding this particular discriminatory dismissal, the manager of the factory and the authorities should get the message. Also, other workers will insist that their rights be protected, putting additional pressure on the manager of the factory or the authorities.
20. Such efforts by human rights field operations in regard to discrimination cases may be particularly sensible in circumstances in which there are several international agencies in the field with potentially or partially overlapping mandates. For example, in some countries there may be ICRC delegates working on issues relating to prison conditions; UN Civilian Police (CIVPOL) officers working on police conduct and the fairness of the administration of justice; UNHCR representatives working with refugees and the return of refugees or displaced persons; UNICEF working to protect children; Médecins sans Frontières, Save the Children, OXFAM, and other voluntary agencies helping with the immediate needs for food, clothing, housing, and medical care for elements of the population at risk. In such a context the human rights field operation must consider how to avoid duplicating the work of other agencies and the Government itself. The human rights field operation may be uniquely situated to handle major cases of discrimination in regard to employment or forced evictions. Alternatively, the operation may be able to work with the Government and the legal system to develop procedures or improve the effectiveness of existing institutions for resolving claims of discrimination, land rights disputes, forced evictions, and other potentially serious issues, which have broad implications for the protection of economic and other rights.
5. Common misconceptions about economic and social rights
21. Despite the clear recognition by the UN that human rights are universal, indivisible, interdependent, and interrelated, there are several arguments, which are sometimes raised to dissuade human rights field operations and others from paying attention to economic, social and cultural rights. For example, some argue that economic, social and cultural rights are entirely progressive, while civil and political rights are immediately applicable. As can be seen from the above summary, however, each Government under the Covenant has an immediate duty not to discriminate in regard to economic, social and cultural rights. Further, the Committee on Economic, Social and Cultural Rights has identified "minimum core obligations" with regard to those rights.
22. Another somewhat misleading argument is that economic, social and cultural rights are costly, while civil and political rights are without cost. It might suffice to refute that facile dichotomy to point out that the right to a fair trial in Article 14 of the Covenant on Civil and Political Rights requires a great investment in the training of judges, prosecutors, lawyers, and other staff concerned with the administration of justice. By contrast, a Government could forbid discrimination in regard to housing without much cost; enforcing that right and many civil or political rights would, of course, require the expenditure of funds.
23. Yet another argument is that economic, social and cultural rights are collective, while civil and political rights are exclusively individual. Again, that distinction is rather simplistic. For example, articles relating to freedom of association, freedom of religion, the rights of minorities, and other provisions in the Civil and Political Covenant protect collective rights. The right to be free from economic discrimination or to attend primary school may be claimed by individuals on the basis of the Covenant on Economic, Social and Cultural Rights.
24. Further, it is said that economic, social and cultural rights are nonjusticiable, while civil and political rights are justiciable. This issue is discussed above in Chapter IV-E- 15 "Role of the courts in protecting economic and social rights".
1. High Commissioner for the Promotion and Protection of All Human Rights, G.A. res. 48/141, 48 U.N. GAOR (No. 49) at 411, U.N. Doc. A/48/49 (1993).
2. G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3. The International Covenant on Economic, Social and Cultural Rights entered into force Jan. 3, 1976.
3. Committee on Economic, Social and Cultural Rights, General Comment 3, The nature of States parties obligations (Art. 2, para.1 of the Covenant) (Fifth session, 1990), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev.1 at 45 (1994).
4. Id.
5. G.A. res. 41/128, 41 U.N. GAOR Supp. (No. 53) at 186, U.N. Doc. A/41/53 (1986).
6. U.N. Doc. A/CONF.157/24 (Part I), World Conference on Human Rights, Vienna, 14-25 June 1993 at 20 (1993).