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I’m talking about economic, social, and cultural Rights. First, some history.
In the late 1940s a British sociologist, T.H. Marshall, mapped the historical progress of rights in
a way that linked civil rights with the eighteenth century, political rights with the nineteenth century,
and social rights were seen as the great leap forward that would characterize
the twentieth century.
In terms of law, efforts to recognize certain forms of social rights go back a very long
way, but we can usefully begin by noting the Constitutions of Mexico and the Soviet Union,
in 1917, followed by that of the Weimar Republic, and many of the Latin American constitutions
of the pre-World War II era.
At the international level, the creation of the International Labor Organization, in 1919,
was a direct response to the progress made by the proponents of communist systems of
government and the ILO sought to demonstrate that capitalism and social rights were compatible
and even complementary. This was made much more explicit in the ILO’s 1944 Declaration of Philadelphia.
In the same year, Franklin Delano Roosevelt called for a second, economic,
Bill of Rights for the US. His efforts were then reflected in a proposal made by a prominent
US group, called the American Law Institute, for the inclusion of social rights in post-war arrangements.
In the subsequent negotiation of the Universal Declaration of Human Rights,
the ALI’s formulation was strongly reflected in the final text, even though the driving
force behind this breakthrough wasn’t the USA, but was a combination of Latin American
and European voices.
The Universal Declaration made, and makes, no distinction in terms of categories of rights
or the type of obligations that attach to the different rights. But that consensus was
short-lived, and in 1951, under pressure from the West, the UN General Assembly voted to
separate the rights into two distinct categories for the purpose of drafting binding treaty obligations.
In the years that followed, the Cold War ensured that very little progress
was made in this whole area of activity.
Finally, the International Covenant on Economic, Social and Cultural Rights was adopted in
1966, and in 1976 it had gathered enough ratifications by States to enter into force.
It remains the central treaty in this area, but reference must also has to be made to a large number
of specialized ILO conventions, to the 1961 European Social Charter, to the 1988 Inter-American
System’s Protocol of San Salvador, and to the African Charter. There are also a lot
of UN treaties dealing with discrimination against women, racial discrimination, and
with the rights of children, migrant workers and persons with disabilities, that also contain
important economic and social rights provisions.
So what are the rights that we’re talking about? Well, in theory, they are classified
as being economic, social or cultural. In practice, the boundaries and the characteristics
of the various rights don’t break down quite so easily into such categories. But I'll mention them anyway.
Economic rights are thought of as the right to work, the rights associated
with labor, and the right to social security. Social rights include the right to an adequate
standard of living, the rights to food, housing, clothing, health, education, and more recently
to water and sanitation. And the principal cultural right is the right to take part in
cultural life, about which I’ll say more later.
What do these rights mean? Well, formulating and proclaiming rights is, in some respects
at least, the easy part. The harder challenge is defining their scope and content, and thus
the concrete obligations that attach to them. For this purpose, institutions are essential.
At the national level, we know that courts are often the principal actors.
But at the international level, the task falls to expert bodies established for this purpose.
The principal actor has been the UN Committee on Economic, Social and Cultural Rights. It
was created in 1987, and consists of eighteen independent experts from different countries
that have ratified the Covenant. There are currently 162 such States, making it six fewer
than for the Civil and Political Rights Covenant.
This Committee then evaluates the extent to which states are in compliance with their
obligations by examining government reports, by questioning official delegations, and by
taking account of information provided by civil society and other sources. This process
results in the adoption of what are called Concluding Observations, directed to the government,
but also of potential significance to a wide range of other actors.
The Committee was recently given authority to examine individual complaints
alleging violations of the Covenant, coming
from any of the fourteen States that have so far ratified the Optional Protocol that
spells out the procedure to be followed. It also allows for an inquiry to be undertaken
by the Committee on the territory of a State in exceptional circumstances.
The other major activity of the Committee is the formulation of so-called General Comments,
a technique that is now used by almost all UN human rights treaty bodies, and which enables
the committee to offer an authoritative interpretation on a particular issue such as the implications
of a right or other obligations flowing from the Covenant.
The best example there is the Committee’s General Comment Number 3, which argued that
there should be a minimum core for each of the social rights. That General Comment was
then picked up by the South African Constitutional Court, which made it the foundation for its
early jurisprudence in this area.
Overall, we can talk endlessly about international
arrangements, but of course, it’s the national level where the most important developments
take place. Here, international lawyers and others initially turned to courts.
There was a big emphasis on what’s called “justiciability” to show that economic, social and cultural
rights could be enforced by judges. There are many prominent examples of cases from
India, South Africa, Colombia, Argentina, Brazil, and a range of other cases.
But, equally important are initiatives outside the formal judicial arena. And here, social
protection schemes, the social protection floors that have been explored in a great
many countries and promoted by the International Labor Organization, are probably much more
important, at the end of the day, than the judicial decisions which are given so much
attention in the literature.
What, then, is the place of economic and social rights within the overall human rights regime
today? Well, on the one hand, the validity of these rights is rarely contested, although
the United States has long sought to dilute their status. Happily, not with much success.
These rights are reflected in all of the major treaties, in many national constitutions,
and they are increasingly central to the work of many NGOs at the national level.
On the other hand, they continue to be inadequately reflected in the national legal systems, and
to occupy a distinctly secondary place in the work of most international human rights
organizations, both governmental and non-governmental.
Perhaps the main obstacle to the status of social rights is the view that they are inherently
costly to achieve, whereas civil and political rights are not. The reality is that all rights
are expensive if they are taken seriously, but that society must allocate the resources
needed to ensure adequate policing and fair elections just as much as the right of children
to education and the right of us all not to die from hunger or inadequate health care.
Another commonly heard argument is that social rights should be matters for democratic debate
and political choices, rather than being determined by courts. This is true, in part, but the
same applies to civil and political rights. In both cases, the political process does
and should determine the ways in which and the extent to which rights will be realized.
But in both instances, their options are constrained by the obligations to ensure, to respect,
called for in the international treaty obligations. There is no more an option to decide not to
ensure adequate health care than there is to dispense with public policing.
It’s also said, in a throwback to the Cold War days, that the realization of civil and
political rights will inevitably lead to respect for economic and social rights. Sadly, history
doesn’t support this optimistic assertion. Today, as the International Monetary Fund,
of all outfits, recently pointed out, the United States’ own statistics indicate that
almost 50 million Americans live in poverty.
What are the main controversies apart from those? First, the debate over individual versus
collective rights. This is often over-stated. All rights are individual, in the sense that
they pertain to, they are enjoyed by, exercised by, individuals. But virtually no rights are
useful unless seen in the broader collective context. There’s no point to having a right
to vote if there isn’t a system to facilitate that. There’s no point in having the right
to exercise religious freedom unless a collectivity can do it. There’s no point in saying that
you have a right to food unless there is a social system which helps to bring that about.
The next controversy, the extent to which there are international obligations to assist
States in their realization of economic and social rights.
Developing countries argue that
the rich countries of the North have a direct obligation to provide financial and
other forms of support. Countries of the North resist this and say that the real obligations
lie at the national level and their efforts from the North will simply supplement when
they possibly can.
Another controversy is the extent to which extraterritorial obligations should apply.
In other words, if a transnational corporation in particular is operating in a country, should
the obligations of the host, sorry of the home State apply in the host country.
This is complex. I won’t go into it further here.
Finally, in terms of the future, interdependence of the two sets of rights has long been viewed
as a slogan. It was formally endorsed by the Vienna Conference in 1993, but it’s now
pretty widely recognized that the two sets of rights do, and must go together.
The human rights movement is not what it was in the 1970s. The focus is more complex, more sophisticated,
and the integrality of the two sets of rights is increasingly a reality. In many ways, the
enormous strides made, for example, in India, with the inclusion of a right to education
and a right to food in the national constitution, and the adoption of major programs to give
effect to those rights, is an inspiration to many other countries.
Finally, I should say that I commend very strongly the organizers of this series and
recommend that you consult their MOOC website on Human Rights courses which are run by the
Universidad Diego Portales in Chile. Thank you.