In recent years there has been a surge of interest in economic, social and cultural rights and more generally in the intersection of economic development and human rights. Neglected during the Cold War, ESCR have assumed heightened significance in light of the persistence of systemic poverty in the global economy. The failure of traditional development policies, seen in the increasing divide between rich and poor around the world, has spurred new efforts to address economic deprivation through human rights strategies. ESCR are now being taken up by human rights, environmental, and development groups as well as by grassroots community-based organizations. In response to public pressure during the 1990s, the international community of states convened at world summits on such issues as human rights, food security, and development. Major UN agencies have adopted new policies and programs on human rights and human development. Even powerful international financial institutions such as the World Bank, the World Trade Organization, and global corporations recently have been compelled to address the human rights impacts of their economic policies. While providing a welcome break from the past history of neglect, this new-found interest in ESCR remains largely at the level of rhetoric.
The international community still shows very little inclination to implement and enforce ESCR, as this would require addressing the enormous and growing inequalities at all levels of human society, from local to global. The real impetus for action and change is coming from "below," from non-government organizations (NGOs) and grassroots groups genuinely committed to using ESCR in their social justice work. However, these groups often have difficulty pioneering this new human rights discipline because of the lack of resource materials explaining what ESCR are and how they can be used in concrete situations.
Despite changed international climate, American government has continued to undermine the importance of ESCR. The US has insisted that ESCR are ‚€œat best‚€Ě goals and not “guarantees” or “entitlements.” American government believes that individual States have the primary responsibility for creation of national conditions favorable to development and “the workings of the free market, supported by clear property rights and the rule of law, have proved worldwide to be the best and fastest way to achieve these development goals.” As a result, some social rights issues that have been successfully dealt with in many other countries (universal health care, equal quality public education, minimum wages, and homelessness) continue to be major problem in this country. And yet, this country shamelessly takes pride to be the richest one in the world.
The U.S. sees ESC rights as mere aspirations to be met someday in the distant future when they are feasible. Feasible, it seems, means affordable without raising taxes or cutting benefits to more politically powerful constituencies than the hungry or homeless. The U.S. has sufficient resources to fulfill everyone’s minimum needs; it is the political will that is lacking. The U.S. needs to recognize that civil and political rights and ESCR are inextricably intertwined. The U.S. should act to ensure that the lack of basic necessities of life does not impede the ability to exercise the political freedoms so cherished in America.
The international law of human rights was created immediately following World War II in response to widespread atrocities committed by states against innocent civilians. Human rights law broke new ground in international relations by establishing binding legal duties that governments owed to individuals and groups rather than to other governments. The purpose of the law was to provide protection to all human beings, regardless of who they were and where they lived.
The founding document of international human rights law was the Universal Declaration of Human Rights (UDHR), unanimously ratified by the UN General Assembly in 1948. The Universal Declaration established the fundamental vision and principles of the new human rights regime by recognizing the interdependence and indivisibility of all human rights. Under this vision, people were guaranteed civil and political freedom ‚€“ through the human rights to life, physical integrity, free speech and belief, and due process of law - as well as economic and social well-being - through the human rights to an adequate standard of living, housing, work, education, food and health.
Over the past 50 years, ESCR were elaborated through a wide range of international treaties, laws, and principles, despite being neglected in practice. Of primary importance is the 1967 International Covenant on Economic, Social and Cultural Rights (the "Covenant"), which has been ratified by 137 states.
ESCR have been recognized in all major international treaties protecting the human rights of vulnerable groups, such as the Convention on the Rights of the Child, the Convention on the Elimination All Forms of Discrimination Against Women, and the Convention on the Elimination of All Forms of Racial Discrimination, as well as various treaties of the International Labor Organization. ESCR have also been affirmed at the world conferences in Rio (on Development and Environment), Vienna (on Human Rights), Copenhagen (on Social Development), and Rome (on Food Security).
Finally, ESCR have been incorporated into regional law through organizations such as the European Union, as well as the domestic law of many countries in the form of constitutional rights and national/local legislation.
The international law of ESCR provides a legal, political, and moral framework to challenge policies that perpetuate poverty and inequality. Just as governments are accountable under human rights law for denying political freedom, so too they are accountable for denying adequate food or health care. ESCR also provide a framework for people to participate in claiming their own rights. This enables affected communities to demand legal accountability in situations where policy-makers would prefer to obscure the lines of responsibility and avoid public scrutiny.
Despite widespread acceptance of ESCR in international law, their actual content and meaning is still in the process of development. During the Cold War they were neglected by international organizations and Western governments in favor of civil and political rights, which as a result have a more fully developed practical content.
In recent years, however, a wide range of advocacy groups have made ESCR meaningful to people on the ground by working to hold states and other parties accountable for specific policies that result in violations. This process of rights-claiming by affected communities is the most important force in shaping the content and meaning of ESCR.
There is also a growing body of jurisprudence on ESCR. This jurisprudence has been developed by legal scholars, courts at the local, national, and regional levels, and international legal bodies such as the UN Committee on Economic, Social and Cultural Rights (the Committee is a group of experts that meets periodically to monitor compliance with the Covenant). For example, the Committee has issued a series of general comments elaborating the legal content of specific rights (housing, food, education), as has another UN human rights body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (food, housing). These diverse efforts have helped create a broad consensus on the basic content of ESCR.
Some key rights are described briefly below:
The right to education guarantees free and compulsory primary education and equal access to secondary and higher education.
The right to health guarantees access to adequate health care, nutrition, sanitation, and to clean water and air.
The right to housing guarantees access to a safe, habitable, and affordable home with protection against forced eviction.
The right to food guarantees the ability of people to feed themselves, and also obligates states to cooperate in the equitable distribution of world food supplies.
The right to work guarantees the opportunity to earn a living wage in a safe work environment, and also provides for the freedom to organize and bargain collectively.
Category of Economic, Social and Cultural rights has expanded to include also the right to wages sufficient to support a minimum standard of living, the right to equal pay for equal work, the right to equal opportunity for advancement, the right to form trade unions, the right to strike, the right to paid or otherwise compensated maternity leave, and the right to intellectual property.
International law also includes several procedural rights that make it possible for people to enforce their substantive ESCR and make them meaningful. These include:
The right to participation in policy decisions that affect one’s human rights. This extends beyond voting rights to include public access to government decision-making processes such as the formulation of national budgets.
The right to information necessary to participate in national and local affairs. This requires government transparency in providing public information on issues such as major development projects or potential health hazards.
The right to effective remedies from domestic courts. Legal recourse is central to every human right. It requires governments not only to recognize that people have human rights in the first place, but also to incorporate human rights into domestic law and enforce them through a fair and impartial judicial system.
It should be emphasized that the process of defining and elaborating the content of ESCR is an ongoing and dynamic one. Decades of neglect by governments and even NGOs have left the field of ESCR with a range of vague legal standards and norms that have rarely been implemented and enforced. As is the case with any rights, the real importance of ESCR lies in their actual and potential impact on people's daily lives. Rights are exercised by people; only people can make them meaningful through the process of demanding freedom, economic welfare, and all the other ideals that human rights embody.
All governments are obligated to guarantee ESCR. Most are obligated by virtue of having ratified specific treaties, but even the handful of states that have not ratified the major human rights treaties are obligated to respect general principles of international law and human rights.
State parties to the Covenant are obligated to respect the full range of ESCR contained therein. They must also report periodically to the Committee monitoring compliance with the Covenant, which is mandated to review state reports, accept NGO submissions, and issue specific recommendations regarding implementation of the Covenant.
In addition, states that have ratified other international treaties, such as the Convention on the Rights of the Child, are obligated to respect the relevant articles and principles concerning ESCR and report on compliance to an expert committee. Even states that have not ratified international treaties on ESCR are bound to respect human rights principles that are part of “customary law,” law that has gained universal acceptance in the international community.
The Universal Declaration is widely considered to be part of customary law and therefore binding on all states, whether or not they have ratified subsequent human rights treaties. Moreover, states are legally responsible for policies that violate human rights beyond their own borders, and for policies that indirectly support violations by third parties. For example, the International Court of Justice found the United States responsible for abuses committed by the contras in Nicaragua by virtue of US political and financial support.
Humanitarian law also holds states responsible for the well-being of occupied civilian populations living outside the state's proper borders.
It is important to note that, in addition to states, a broad range of non-state actors have duties under human rights law even though they have not ratified specific treaties. The General Assembly proclaimed in the Universal Declaration that “every individual and every organ of society shall promote respect for these rights and freedoms.”
The Committee has affirmed this broad concept of human rights responsibility in observing that third parties, intergovernmental organizations and agencies, and the international community as a whole have legal obligations regarding ESCR.
For example, speaking directly to the issue of free trade and development, the Committee has noted that "international institutions promoting measures of structural adjustment should ensure that such measures do not compromise the enjoyment of [for example] the right to adequate housing."
Accountability of non-state actors is the most important frontier of human rights protection. In the post-Cold War era of increasing free trade, non-state actors such as the International Monetary Fund (IMF), the World Trade Organization (WTO), and private corporations have gained increasing control over global, national, and even local economic policies. These policies affect everyone everywhere, yet the policy-makers are not elected and their decisions are not subject to popular or democratic oversight. Demanding human rights accountability from this new set of institutions will be a long and difficult struggle, but one with tremendous implications for the well-being of billions of people.
Assessing violations in concrete situations is one of the most important and controversial aspects of ESCR. Lack of clarity as to what constitutes a violation has impeded efforts to implement and enforce ESCR. Part of the difficulty lies in the Covenant's "progressive realization" clause (discussed below), which some states have erroneously interpreted to avoid any accountability for violations. But the biggest obstacle remains the lack of political will on the part of policy-makers and failure of the human rights movement to hold policy-makers accountable for economic injustice.
This is changing, as more and more activists and NGOs turn to rights-based advocacy to mobilize opposition to systemic poverty. Their efforts are beginning to have an impact, but the problem of how to assess violations remains a major obstacle. In recent years legal scholars, advocates, and UN agencies have developed methodologies and lists of indicators for measuring violations.
While detailed lists of indicators for each right can help clarify the theoretical components of the rights, a basic legal framework for assessing violations in specific situations may be of more practical use to advocates. What follows is a very simple framework that divides violations into two broad categories: failure to “progressively realize” rights, and discrimination in access to rights.
The first category of violations is based on the much-debated provision in the Covenant that state parties are obligated to “progressively” realize ESCR “to the maximum of available resources.” While this language recognizes that poor states are not immediately capable of guaranteeing the same levels of education and health care as developed states, the concept of progressive realization does not permit the perpetuation of economic injustice and disparity. On the contrary, state parties are required to take steps to continuously improve people’s enjoyment of ESCR. These rights are therefore violated when a government does not allocate sufficient resources towards basic social services, or when these services are undermined through corruption, or when the institutional structures necessary to deliver these services are deliberately neglected.
Within the progressive realization paradigm, there are two types of policies that always constitute violations of ESCR. First are policies that deprive people of a basic level of subsistence necessary to live in dignity the principle of minimum core content. Second are measures that actually worsen people access to ESCR the principle of non-regression. It is widely agreed that failure to satisfy essential human needs, based on the minimum core content of ESCR, is an immediate and absolute violation of human rights that can never be excused by a country’s level of development. This recognizes that people’s very survival depends upon access to essential services and that no state is too poor to meet those basic needs.
Along the same lines, the Committee has affirmed that "a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education, is, prima facie, failing to discharge its obligations under the Covenant.”
The Committee has also declared that responsible parties may not adopt regressive measures that harm ESCR, for example through “a general decline in living and housing conditions directly attributable to policy and legislative decisions by States parties.”
The principle of non-regression would prohibit a government from cutting back on basic services such as health care or primary education, even under pressure from international lenders such as the IMF and World Bank, if such cutbacks lessened people's access to those services.
The second category of violations is the prohibition of discrimination in access to ESCR. The obligation not to discriminate is not subject to the limitation of progressive realization, but rather is an immediate duty of states and non-state actors. The Covenant flatly prohibits discrimination in access to food, health care, housing, work, education and other ESCR on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
The prohibition against discrimination is absolute. Discrimination may not be justified under any circumstances, such as low levels of development. A government’s failure to provide the same standard of health care or education to girls as to boys is per se a violation of ESCR under all circumstances. Moreover, policies are considered discriminatory if their effects are discriminating in practice, even if those effects were not intended.
There are a number of reasons why ESCR can make a difference in struggles for justice:
They confront the most pressing problems of the day. Adequate food, health care, and housing are of fundamental importance to all human beings. Yet hundreds of millions around the world have neither access to these basic necessities nor influence over the policy decisions that affect their daily survival. Economic and social rights empower people to take an active role in challenging the root causes of their impoverishment.
They transform needs into rights. Traditional models of development treat people in low-income communities as passive victims. Grounded in concepts of justice and human dignity, economic and social rights enable people to re-conceive their basic needs as a matter of rights to claim rather than charity to receive. This change in consciousness is the first step towards taking action.
They provide legal accountability. International and domestic laws impose clear duties on decision-makers to guarantee economic and social rights. This means that advocacy groups can use legal mechanisms to demand more transparent allocation of resources and concrete remedies for policies that violate these rights. They help build coalitions across borders. A wide variety of grassroots, social justice, human rights, development, environmental, and women’s groups are working for social change.
Economic and social rights provide an overarching framework and common focus to link these efforts at the local, national, and international levels. They challenge global inequality. Globalization has widened the gap between rich and poor and left decisions about people’s basic welfare in the hands of unaccountable officials in transnational corporations and financial institutions like the World Bank. Economic and social rights provide a mechanism to hold these powerful international actors responsible for the impacts of their policies. They are inseparable from other human rights. The interdependence of all human rights is an inescapable reality in the world today. The rights to vote and to free speech have little value to those lacking the education and income to make them meaningful. Only when all human rights are respected will all people have the opportunity to realize their full human potential.