Economic, Social, and Cultural Rights
A Legal Resource Guide
Scott Leckie and Anne Gallagher, Editors
2006 | 776 pages | Cloth $99.95
Law | Public Policy
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Table of Contents
Foreword by Virginia B. Dandon
Preface by Mary Robinson
Section One: International Instruments and Resources
1. International Covenant on Economic, Social and Cultural Rights
2. Convention on the Rights of the Child
3. International Convention on the Elimination of All Forms of Racial Discrimination
4. Convention on the Elimination of All Forms of Discrimination Against Women
5. International Covenant on Civil and Political Rights
6. Convention Relating to the Status of Refugees
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
8. ILO Convention No. 29 Concerning Forced Labour
9. ILO Convention No. 105 Concerning the Abolition of Forced Labour
10. ILO Convention No. 111 Concerning Discrimination in Respect of Employment and Occupation
11. ILO Convention No. 117 Concerning Basic Aims and Standards of Social Policy
12. ILO Convention No. 122 Concerning Employment Policy
13. ILO Convention No. 154 Concerning the Promotion of Collective Bargaining
14. ILO Convention No. 168 Concerning Employment, Promotion, and Protection Against Unemployment
15. ILO Convention No. 169 Concerning Indigenous and Tribal Peoples in Independent Countries
16. Convention Against Discrimination in Education
17. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field
18. Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
19. Geneva Convention Relative to the Treatment of Prisoners of War
20. Geneva Convention Relative to the Protection of Civilian Persons in Time of War
21. Geneva Protocol 1 Relating to the Protection of Victims of International Armed Conflicts
22. Geneva Protocol 2 Relating to the Protection of Victims of Non-International Armed Conflicts
1. Universal Declaration of Human Rights
2. Declaration on Social Progress and Development
3. Declaration on Race and Racial Prejudice
4. Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities
5. Universal Declaration on the Eradication of Hunger and Malnutrition
6. Declaration on the Rights of Disabled Persons
7. Declaration on the Right to Development
C. SUPPLEMENTARY UN STANDARDS AND RESOURCES
1. CESCR General Comment No. 1 (1989) on Reporting by States Parties
2. CESCR General Comment No. 2 (1990) on International Technical Assistance Measures (Article 22 of the Covenant)
3. CESCR General Comment No. 3 (1990) on the Nature of States Parties Obligations (Article 2(1) of the Covenant)
4. CESCR General Comment No. 4 (1991) on the Right to Adequate Housing (Article 11(1) of the Covenant)
5. CESCR General Comment No. 5 (1994) on Persons with Disabilities
6. CESCR General Comment No. 6 (1995) on the Economic, Social and Cultural Rights of Older Persons
7. CESCR General Comment No. 7 (1997) on Forced Evictions (Article 11(1), The Right to Adequate Housing)
8. CESCR General Comment No. 8 (1997) on the Relationship Between Economic Sanctions and Respect for Economic, Social and Cultural Rights
9. CESCR General Comment No. 9 (1998) on the Domestic Application of the Covenant
10. CESCR General Comment No. 10 (1998) on the Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights
11. CESCR General Comment No. 11 (1999) on Plans of Action for Primary Education (Article 14 of the Covenant)
12. CESCR General Comment No. 12 (1999) on the Right to Adequate Food (Article 11 of the Covenant)
13. CESCR General Comment No. 13 (1999) on the Right to Education (Article 13 of the Covenant)
14. CESCR General Comment No. 14 (2000) on the Right to the Highest Attainable Standard of Health (Article 12)
15. Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties Under Articles 16 and 17 of the ICESCR (1991)
16. CEDAW General Recommendation No. 13 (1989) on Equal Remuneration for Work of Equal Value
17. CEDAW General Recommendation No. 16 (1991) on Unpaid Women Workers in Rural and Urban Family Enterprises
18. CEDAW General Recommendation No. 18 (1991) on Disabled Women
19. CEDAW General Recommendation No. 24 (1999) on Women and Health
D. WORLD CONFERENCES
1. Vienna Declaration and Plan of Action
2. Beijing Declaration: Fourth World Conference on Women
3. Copenhagen Declaration on Social Development
4. Istanbul Declaration on Human Settlements
E. INTERPRETIVE TEXTS
1. Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights
2. Maastricht Guidelines on Violations of Economic, Social and Cultural Rights
3. Bangalore Declaration and Plan of Action Regarding Economic, Cultural and Social Rights and the Role of Lawyers
4. Guiding Principles on Internal Displacement
5. Comprehensive Human Rights Guidelines on Development-Based Displacement
F. UN HUMAN RIGHTS SPECIAL RAPPORTEURS
1. The Realization of Economic, Social and Cultural Rights
2. The Right to Adequate Housing
3. The Relationship Between the Enjoyment of Human Rights, in Particular Economic, Social and Cultural Rights, and Income Distribution
4. The Question of the Impunity of Perpetrators of Human Rights Violations
5. The Right to Adequate Food and to be Free from Hunger
6. Violence Against Women
7. The Right to Education
8. Effects of Structural Adjustment Policies on the Full Enjoyment of Human Rights
9. Human Rights and Extreme Poverty
Section Two: Regional Instruments and Resources
1. European Social Charter
2. European Social Charter Collective Complaints Procedure
3. European Convention on Human Rights and Fundamental Freedoms—Protocol One
4. European Convention on the Legal Status of Migrant Workers
5. European Community Charter of Fundamental Social Rights for Workers
6. Treaty Establishing the European Community
7. American Declaration of the Rights and Duties of Man
8. American Convention on Human Rights
9. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights ("Protocol of San Salvador")
10. Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women
11. African [Banjul] Charter on Human and Peoples' Rights
12. African Charter on the Rights and Welfare of the Child
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Why a Legal Resource Guide to Economic, Social, and Cultural Rights?
The notion of human rights has been characterized as one of the defining ideas of modern civilization. Economic, social, and cultural rights are an essential part of the human rights equation. The right to an adequate standard of living, the right to work; the right to education, and the right to health are not optional extras but are fundamentally important to human security, happiness, and fulfillment. The international community has recognized this reality and responded to it by developing a range of legal instruments designed to establish standards in this area. Taken together, these instruments provide a framework for the analysis, interpretation, and enforcement of economic, social, and cultural rights. The basic purpose of this book is to promote economic and social justice by improving accessibility to a legal framework which is still poorly understood.
The persistent neglect of economic, social, and cultural rights by states, intergovernmental bodies and nongovernmental organizations has been well documented. Despite repeated assertions that all rights are "equal, indivisible, interrelated, and interdependent," economic, social, and cultural rights, in comparison with political and civil rights, remain far behind in terms of normative development, monitoring, enforcement. and implementation. For example:
- The international human rights enforcement machinery is much stronger for civil and political rights than it is for economic, social, and cultural rights
- Violations of civil and political rights are invariably considered more serious than even massive and systematic violations of economic, social, and cultural rights
- International nongovernmental organisations still only rarely focus on economic, social, and cultural rights issues
- Few international human rights lawyers have adequate knowledge of, or experience in economic, social, and cultural rights
- At the national level, economic, social, and cultural rights are much less likely to be protected in constitutions or legislation than civil and political rights, and there are comparatively fewer governmental institutions mandated to protect and promote economic, social, and cultural rights. National courts are almost invariably reluctant to take up issues relating to economic, social, and cultural rights.
It is important to understand the reasons why economic, social, and cultural rights continue to be the poor relation of the international human rights family. Much has been written on this subject and it is generally agreed that political and ideological differences between powerful States as to the nature and effect of such rights have been an important factor in their marginalisation. A range of doctrinal and technical objections to the recognition and enforcement of economic, social, and cultural rights have also been raised. Most commonly, it is asserted that economic, social, and cultural rights are too vague to be characterized as legal obligations; that they are therefore incapable of being protected or upheld ("justiciable"); and that the obligation to guarantee economic, social, and cultural rights is impossible to achieve. These and other issues are examined in detail below.
Principal Rights and Their Primary Sources
Economic, social, and cultural rights are recognized in and protected by a large number of legal instruments. The following paragraphs provide an overview of the principal rights and their primary sources—focusing specifically on the major international and regional treaties. All instruments referred to below are included in this Resource Guide.
The Universal Declaration of Human Rights (UDHR), adopted as a resolution of the General Assembly in 1948, remains one of the original and most important sources of economic, social, and cultural rights. The UDHR specifically identifies the right to social security (Article 22); the right to work (Article 23); the right to rest and leisure (Article 24); the right to an adequate standard of living (Article 25); the right to education (Article 26); and the right to benefits of science and culture (Article 27).
The International Covenant on Economic, Social and Cultural Rights (ICESCR) is the foremost international legal source of these rights. Rights recognized in and protected by this instrument include the right to work and to favorable conditions of work (Articles 6 and 7); the right to organize and take collective labor action (Article 8); the right to social security (Article 9); the right to protection of the family including protection of mothers and children (Article 10); the right to an adequate standards of living including adequate food, clothing, and housing (Article 11); the right to enjoyment of the highest attainable standard of health (Article 12); the right to education (Article 13); and cultural rights including the right to participate in cultural life, to benefit from scientific progress and one's own scientific, literary or artistic production (Article 15).
The International Covenant on Civil and Political Rights, adopted at the same time as the ICESCR, also protects certain core economic, social, and cultural rights including the right to form and join trade unions (Article 22) and the right of ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practice their own religion, or to use their own language (Article 27). The Convention on the Rights of the Child upholds the applicability of many of the rights contained in the ICESCR to children. These include the right to health (Article 24); the right to social security (Article 25); the right to an adequate standard of living (Article 27); the right to education (Article 28); and protection from economic exploitation (Article 32). Of the other major international human rights instruments, several contain provisions which are directly relevant to economic, social, and cultural rights. The Convention on Elimination of all Forms of Racial Discrimination, for example, prohibits discrimination on the basis of racial or ethnic origin with respect to a range of economic, social, and cultural rights. The Convention on the Elimination of Discrimination Against Women affirms the applicability of the full range of economic, social, and cultural rights to women. A broad range of worker-related rights has been developed under the auspices of the International Labour Organization (ILO) and enshrined in ILO Conventions and other legal instruments.
At the regional level, the African Charter on Human and Peoples' Rights protects the right to work (Article 15), the right to health (Article 16), and the right to education (Article 17). The European Social Charter protects the full range of economic, social, and cultural rights including the right to work, to favorable conditions of work, and to organize and take collective labor action (Articles 1-10); the right to health (Article 11); the right to social security, social and medical assistance, and social welfare services (Articles 12-14); and protection of especially vulnerable groups (Articles 15-17, 19). Similar protections are contained in the Protocol of San Salvador, developed within the Inter-American Human Rights system.
Understanding Economic, Social, and Cultural Rights: The Importance of Secondary Sources
One of the criticisms often leveled against economic, social, and cultural rights concerns their alleged "vagueness." While such criticisms may occasionally be politically motivated, they do address an important point. The need for specificity in terms of defining human rights is very real. It is only through understanding the content of a right that one can draw conclusions as to the nature of a State's obligations with respect to that right, the ways in which that right can be violated and the means by which it can be most effectively implemented.
In addition to the standards outlined above, there exists a wide range of secondary legal resources which provide valuable guidance on understanding the nature and implications of economic, social, and cultural rights. One of the most important sources of such information is the United Nations Committee on Economic, Social and Cultural Rights which is responsible for overseeing the implementation of the ICESCR. Through its work, the Committee has made considerable progress in developing the normative content of the key economic, social, and cultural rights; in interpreting the obligations of States Parties, and in identifying the actions that contribute to both violation and fulfillment of those obligations. Its key pronouncements (usually in the form of "general comments") are reproduced in this Guide along with General Comments of other Human Rights Treaty Bodies which are relevant to economic, social, and cultural rights.
The work of the Committee on Economic, Social and Cultural Rights has been supplemented by efforts of international legal experts and scholars to formulate detailed principles on implementation of economic, social, and cultural rights. Two of the most important documents to emerge from this work are the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (1987) and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997)—both included in the present compilation. The Limburg Principles delineate the general contours of possible violations of economic, social, and cultural rights and have been extensively used within national legal systems as an interpretive tool. The Maastricht Guidelines build upon the Limburg Principles by seeking to delineate the legal implications of acts and omissions amounting to violations of economic, social, and cultural rights.
The various United Nations Special Rapporteurs appointed by the Commission on Human Rights and its Sub-Commission have also played a significant role in promoting a common understanding of obligations and entitlements inherent in economic, social, and cultural rights. The Resource Guide includes extracts from reports of key rapporteurs including the Special Rapporteur on the Realization of Economic, Social and Cultural Rights; the Special Rapporteur on the Right to Adequate Housing; the Special Rapporteur on the Right to Education; and the Special Rapporteur on Violence Against Women, its causes and consequences.
Understanding the Legal Implications of Economic, Social, and Cultural Rights
Economic, social, and cultural rights are legally protected in binding, universally accepted treaties. Accordingly, and as explained in more detail in the following section, States are under a legal obligation to respect, protect, and fulfill these rights. There has been considerable discussion (and disagreement) as to the exact nature of State's obligations vis-à-vis implementation of economic, social, and cultural rights. Most attention on this point has been given to the ICESCR. In relation to that instrument, the primary and secondary documentation contained in the Resource Guide supports the following positions:
- States Parties are required to take "progressive action" toward fulfillment of rights contained in the ICESCR. While this provision represents an acknowledgement that immediate fulfillment may not be possible, it does not permit postponement of positive action. States parties must be able to show that genuine efforts are being made in good faith to secure the rights set out in the Covenant. The burden of proof in such situations rests with the State and not with the individual claiming breach.
- The prohibition on discrimination in relation to economic, social, and cultural rights is of immediate effect. States parties are required to abolish any laws, policies or practices which affect the enjoyment of economic, social, and cultural rights. They are also required to take action to prevent discrimination by private persons and bodies in any field of public life.
- All States parties, irrespective of their level of economic development, are required to ensure respect for minimum subsistence rights for all. Resource scarcity does not relieve the State of these minimum obligations.
- States Parties should ensure equitable and effective use of (and access to) available resources. Governmental priorities with regard to resource allocation should therefore be subject to scrutiny.
- Legislative measures alone are insufficient to satisfy the requirements of the ICESCR. Other measures would include providing for judicial remedies where appropriate, as well as administrative, financial, educational, and social measures.
These and other key points relating to the legal implications of economic, social and cultural rights are discussed in the following sub-sections.
Economic, social, and cultural rights and the language of violations
It is important to use the terminology of violations when referring to situations not in conformity with internationally recognized economic, social, and cultural rights. This terminology underscores the cornerstone principles of indivisibility, interdependence, and permeability of all human rights. It also serves to reinforce the central notion that all human rights can be violated and that intentional noncompliance by a State with any clearly defined obligation is a breach of the duty of that State and the rights of any person affected by such breaches. At the same time, it is essential that the language of violations, whether as a specific label or as a general description is used cautiously. There can be many situations which are far from ideal in terms of economic and social conditions within a given State. However, this does not necessarily mean that the State in question has violated a legal obligation. To label all less-than-perfect situations as violations of human rights, even when the State concerned has acted in good faith and sought to rectify problematic dilemmas relating to social and economic policy would serve only to erode the seriousness of the term. Violations language should only be utilized in situations where a legal obligation exists and a corresponding failure to meet that obligation can be identified.
Progressive implementation and the question of immediate obligation
The requirement for progressive realization of economic, social, and cultural rights, as set out in the ICESCR, is occasionally taken to imply that the rights established by that instrument are to be realized only once a country reaches a certain level of economic development. However, this interpretation does not accurately reflect the clear duty, on all States Parties, irrespective of their current levels of development, to move as quickly as possible towards the realization of economic, social, and cultural rights. Any interpretation of "progressive development" which implies a right, by a State Party, to postpone efforts to ensure the enjoyment of the rights in the Covenant would be inconsistent with the clear intention of the ICESCR and therefore in conflict with basic principles of international treaty law.
It is true, of course, that many rights contained in the ICESCR can only ever be implemented progressively. The right to health, for example, is not something that a government will be able to make a reality for all persons overnight. Nevertheless, this does not detract from the requirement that a State Party begin, in good faith, to do everything within its present power to implement that and other rights. At the same time, it is evident that certain aspects of economic, social, and cultural rights are, in fact, capable of immediate implementation. For example, there is no reason why the nondiscrimination clause of the ICESCR should not become immediately effective. In the same way, States Parties would be considered to be under an immediate duty to refrain from actively violating economic, social, and cultural rights or withdrawing legal and other protections relating to these rights. The Committee on Economic, Social and Cultural Rights has asserted that this duty exists independently of an increase in available resources and thus recognizes that all existing resources must be devoted in the most effective way possible toward the realization of the rights enshrined in the Covenant.
In summary, and as affirmed in the Limburgh Principles (21-24), States Parties are required to move as expeditiously and effectively as possible towards the goal of realizing fully the economic, social, and cultural rights established pursuant to the Covenant. This obligation exists independent of any increase in available resources. Any "deliberately retrogressive measures" affecting these rights can only be justified by reference to the totality of the rights provided for in the Covenant and in the context of the full utilization of a state's maximum available resources.
Implementation to the maximum of available resources
Along with the progressive realization provision, the 'available resources' standard is often used to justify or excuse State failure to implement economic, social, and cultural rights. However, as recognized in the Limburg Principles (see Principles 25-28), this requirement obliges States Parties to ensure minimum subsistence rights for everyone, regardless of the level of economic development in a given country and is by no means intended as an escape clause for less developed countries. The term "available resources" applies both to domestic resources and to any international economic or technical assistance or co-operation available to a State Party. In the use of the available resources due priority should be given to the realization of rights recognized in the Covenant, considering the need to assure to everyone the satisfaction of subsistence requirements as well as the provision of essential services.
The Maastricht Guidelines further confirm that resource scarcity does not relieve States of certain minimum obligations in respect of the implementation of economic, social, and cultural rights (Guideline 10). The Committee on Economic, Social and Cultural Rights has taken a similar view in its General Comment No. 4 (see especially paragraphs 14 and 15).
Public expenditure has often been viewed as the only major "resource" which a State must use toward securing the rights found in the Covenant. As crucial as this resource is, however, many other resources can also be devoted towards this end. Public expenditure will, however, always remain central to the realization of economic, social, and cultural rights and is therefore a logical focus of attention. The Committee on Economic, Social and Cultural Rights has implied that where there is no apparent justification for a reduction in public expenditure, the State might be considered to have violated its obligations under the Covenant.
The question of justiciability
Justiciability in this context refers to the capacity of economic, social, and cultural rights to be recognized and defended legally. Those opposed to legal recognition of economic, social, and cultural rights have argued that the relevant norms and the obligations they create are too vague to become the subject of legal argument or action. Such views have, in a sense been self-fulfilling: a belief in the non-justiciability of economic, social, and cultural rights has deterred national courts from dealing with such issues and thereby from developing the jurisprudence which facilitates judicial consideration.
While some of the legal issues surrounding the justiciability question are yet to be settled, there is a growing international acceptance of the justiciability of economic, social, and cultural rights, based particularly on the frequent consideration of these matters by national courts. The Committee on Economic, Social and Cultural Rights has asserted in its General Comment No. 3 that "Among the measures which might be considered appropriate, in addition to legislation, is the provision of judicial remedies with respect to the rights which may, in accordance with the national legal system, to be justiciable." The Committee also indicated that a number of articles within the Covenant are capable of immediate implementation, including articles 3, 7(a)(i), 8, 10(3), 13(2)(a), 13(3), 13(4), and 15(3).
While the norms found in the Covenant on Economic, Social and Cultural Rights may or may not be directly subject to a complaint procedure within domestic law, this text must still play a significant role in the application and interpretation of domestic law. At a minimum, the judicial bodies of States parties should consider international human rights law as an interpretive aid to domestic law and ensure that domestic law is interpreted and applied in a manner consistent with the provisions of international human rights instruments to which a State is bound. Judges should ensure that any decisions they issue do not result in the relevant government violating the terms of a treaty which it has ratified.
The failure of a State to provide a judicial or other remedy is certainly not solid evidence of the non-justiciable nature of a particular norm. Even within jurisdictions where justiciability is limited, it would be difficult to sustain arguments that it is primarily the nature of economic, social, and cultural rights, rather than the competence or willingness of the adjudicating body to entertain, examine, and pronounce on claims of these rights that have so often kept such demands away from judicial realms.
The central concept of nondiscrimination
As noted above, States Parties to the CESCR are obliged to immediately address issues relating to discrimination in the realization of economic, social, and cultural rights. The provisions of article 2(2) of the CESCR require States parties to ensure the provision of judicial review and other recourse procedures should discrimination occur. The grounds of discrimination mentioned in this article are not exhaustive and thus it would appear that additional forms of unfair discrimination which are intended or operate to negatively affecting the enjoyment of the rights found in the Covenant should be eliminated. According to the Limburg Principles (Principles 35-40), special measures taken for the sole purpose of securing adequate advancement of certain groups or individuals requiring such protection as may be necessary in order to ensure to such groups and individuals equal enjoyment of economic, social, and cultural rights are not considered discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different groups and that such measures shall not be continued after their intended objectives have been achieved. Article 2(2) not only obliges States to desist from discriminatory behavior and to alter laws and practices which allow discrimination. It also applies to the duty of States parties to prohibit private persons and bodies (third parties) from practicing discrimination in any field of public life.
The Obligations to Protect, Respect, and Fulfill Economic, Social, and Cultural Rights
The analytical framework of "protect, respect, and fulfill" is now widely used to identify specific legal obligations under international human rights law. In the present context, the obligation to respect rights requires the State to refrain from committing any act or omission that violates or interferes with enjoyment of economic, social, and cultural rights. The obligation to protect rights requires the State to take active measures aimed at preventing violations whether committed by the state or its agents or third parties (see section 6 below). Finally, the obligation to fulfill rights requires the State to implement affirmative measures including legislative, judicial, budgetary, and administrative measures which are necessary for the full realization of economic, social, and cultural rights.
The instruments presented in this Resource Guide support the following additional observations regarding the duty of States to protect, respect, and fulfill economic, social, and cultural rights.
Protecting economic, social, and cultural rights
The obligation to protect economic, social, and cultural rights obliges the State and its agents to prevent the violation of any individual's rights by any other person or entity. Beneficiaries of economic, social, and cultural rights must, therefore, be protected from abuse by a third party capable of infringing these rights. Where such infringements do occur, public authorities should act to preclude further deprivations as well as guaranteeing access to legal remedies for any infringement caused. Effective measures protecting persons from racial or other forms of discrimination, harassment, withdrawal of services, or other threats must also be established.
Generic elements of the protect obligation could include
- Immediate steps to ensure that ongoing violations of economic, social, and cultural rights standards by the State and its agents are, to the maximum extent, prevented.
- Immediate steps to ensure that violations of economic, social, and cultural rights by third parties.
- Ensuring access to impartial legal remedies in cases of alleged violations of economic, social, and cultural rights, by both State and non-State actors.
- Active measures designed to protect all persons against racial or other forms of discrimination, harassment, and withdrawal of services.
Promoting economic, social, and cultural rights
While the duty to respect essentially implies a series of limits of State action, the obligation to promote requires governments to recognize the multifaceted human rights dimensions of economic, social, and cultural rights and to take steps to ensure that no measures are taken with the intention of deliberately eroding the legal and practical status of these rights. Moreover, this implies that comprehensive legislative review should take place with a view to identifying existing legislation or policies negatively affecting the exercise of ESC rights subject to repeal. Importantly, the Committee on Economic, Social and Cultural Rights, in its General Comment No. 4 has emphasized that "policies and legislation should not be designed to benefit already advantaged social groups at the expense of others" (para. 11).
Generic elements of the obligation to promote economic, social, and cultural rights could include
- Comprehensive legislative and policy review of all laws, regulations, or other directives in order to identify negative impacts having any negatively bearing on the fulfillment of economic, social, and cultural rights.
- Legislative and policy recognition of economic, social, and cultural rights.
- Development and implementation of targeted policies, designed to ensure the full realization of economic, social, and cultural rights in the shortest possible period for all sectors of society.
- Establishment of benchmarks designed to monitor economic, social and cultural rights, including the development and application of appropriate indicators.
- Special attention, in the development of laws, strategies and programmes, to the economic and social rights of disadvantaged groups, including the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, and people living in disaster-prone areas.
Fulfilling Economic, Social, and Cultural Rights
The obligation to fulfill economic, social, and cultural rights obliges States to take proactive and positive means to facilitate the full enjoyment of these rights within their territory. This obligation may involve consideration of abroad range of fiscal and policy issues such as public expenditure, governmental regulation of the economy, the provision of basic public services and infrastructure, taxation, and other redistributive economic measures. The Committee on Economic, Social and Cultural rights has devoted considerable attention to the nature of the obligation to fulfill in relation to a number of specific rights. including the right to adequate food, the right to health, and the right to education.
Generic elements of the fulfill obligation could include
- The devotion of a reasonable proportion of public expenditure toward the progressive realization of economic, social, and cultural rights.
- The provision by the State of public services, including infrastructure, water, electricity, sanitation, heating, sewage, draining, roads, health care facilities, and emergency services.
- The development of targeted plans of action, with specific time-frame and financial requirements, toward the full realization of economic, social, and cultural rights.
Legal Responsibility for Violations of Economic, Social, and Cultural Rights
The violation of an international legal norm entails responsibility. To what extent can States be held responsible under international law for violations of economic, social, and cultural rights? This is not an abstract issue but one with highly practical implications. The State remains the primary actor in international law. It is the State which bears primary responsibility for implementing economic, social, and cultural rights. It is through the State that individuals may seek protection, and it is against the State that those same individuals may claim reparations or redress for violations. A breach of international law must generally be linked to a State in order for it to be justiciable at the international level It follows that an act or omission must have some connection to the State if it is to be characterized as a human rights violation—rather than, for example, a criminal offence. In many cases, the involvement of the State in a situation involving violations of economic, social, or cultural rights will be clear. However, the issue is often complicated by the fact that those directly implicated in such violations may be non-State actors—individuals, corporations, and even intergovernmental entities.
There will of course be situations where the involvement of a State in violations of economic, social, and cultural rights is clearly apparent. However, the fact that of non-State involvement in such violations does not prevent States from being held directly and indirectly responsible under international law for the actions of others. Where human rights violations occur with official support or acquiescence then the State is held to be complicit and therefore directly responsible for the violation itself. The direct involvement of the state is large scale forced evictions, for example, would be an example of conduct leading to direct state responsibility—as would public sector corruption which deprives the population of minimum subsistence rights. Another example is provided by discriminatory property ownership or inheritance laws which impoverish women. In situations where the government has allowed the violative act to take place without taking effective measures to prevent it or to punish those responsible, then the State itself is indirectly responsible for the human rights violations flowing from that private act. The question, in this latter case, is whether the State exercised due diligence in preventing and responding to the violative act. Tolerance of abusive labor standards in the private sector could, for example, indirectly engage a State's responsibility for violation of the right to just and favorable conditions of work.
Can non-State actors be held legally responsible for violations of economic, social, and cultural rights? Traditional views of human rights law distinguish between public and private actors. This once widely accepted dichotomy, however, has become blurred such that private actors (often in conjunction with the State) may now be deemed liable for violations of economic, social, and cultural rights.
Intergovernmental organizations also wield considerable influence over the realization of economic, social, and cultural rights. The extent to which intergovernmental organizations (including the World Bank, the IMF, and even the UN Security Council) can be held directly responsible for human rights violations is yet to be settled. This is an area which requires the attention of international lawyers and activists working to secure economic, social, and cultural rights.
The Maastricht Guidelines deal extensively with the issue of state responsibility for violations of economic, social, and cultural rights, including responsibility for acts of non-State entities (Guideline 18) and intergovernmental organizations (Guideline 19).
The Question of Remedies
It is widely accepted that the violation of any international legal norm gives rise to a right of remedy. Both the Universal Declaration of Human Rights (Article 8) and the Covenant on Civil and Political Rights (Article 2) guarantee that any person whose rights or freedoms are violated shall have an effective remedy. Although the Covenant on Economic, Social and Cultural Rights does not contain a similar provision, the right to a remedy is accepted as a general principle of public international law and can therefore be applied in this context without difficulty. Implementation however, remains generally weak. It is true that an increasing number of States have developed judicial and/or nonjudicial remedies for violations of economic, social, and cultural rights. Some have gone even further, entrenching constitutional guarantees which act to prevent legislative acceptance of policies manifestly inconsistent with such guarantees. Overall, however, in most jurisdictions, effective remedies are only rarely provided for. Even where judicial remedies are available, courts have often proven reluctant to adjudicate on such matters.
It is not difficult to argue that those who have been victimized by severe violations of economic, social, and cultural rights are entitled to a remedy. Efforts geared to preventing abuses of economic, social, and cultural rights must emphasize the fundament of securing compensation, restitution, and reparation in the event that such rights are compromised.
A Final Note on the Structure of this Guide
Economic, Social, and Cultural Rights: A Legal Resource Guide is divided into two sections. Section One contains full texts or excerpts from 66 international instruments and resources. These include treaties, declarations, supplementary UN standards and resources, world conference documents, interpretive texts, and reports of UN human rights rapporteurs. Section Two contains full texts or excerpts from 12 regional instruments and resources. While the Resource Guide is not exhaustive, it has been designed to be a comprehensive collection of the key legal documents and supporting texts that would be required for any student, scholar, or practitioner of economic, social, and cultural rights.
A special feature of this Guide is the comprehensive index designed to facilitate access to all references of a given term throughout the entire book. By using this index, readers are able to identify quickly each place in which a given term (e.g., "women" or "housing") appears.
All documents appear with their original wording.
The editors are deeply appreciative of the assistance provided by many people in the lengthy preparation of this compilation. We would like to thank, in particular, Zarema Arutyunova, Bret Thiele, Corey Sherman, Liliana Luper, and Andrea Lindemann for their excellent editorial efforts and in sharing their good spirits with us. We are also grateful to Rob Lichtman for his extensive technical assistance. Special thanks also go to Virginia Dandan and Mary Robinson for their kindness in providing the Foreword and Preface of this book. We are grateful, as well, to Nancy Ent and Bert Lockwood for their kind assistance and patience and to Roy and HG for reminding us of what is truly important. Thanks most of all to the Harling and KC for the enduring support, wisdom, and infinite joy they provide.