Economic, Social & Cultural Rights – Analyses, Critique, Perspectives for Advocacy
Author: WUNRN
Date: July 18, 2016
This is a quite long, but significant critique. It delves into Economic, Social & Cultural Rights with an in-depth perspective. Though there are only brief references to gender, the experts give insights and analyses that can be useful in our advocacy for human rights, for women’s and girls’ rights. The review is objective on UN processes and mechanisms. Important references are made to domestication of international human rights documents, indicators, monitoring, enforcement and accountability. Notation was made about the intersectionality and indivisibility of human rights.
International Covenant on Economic, Social and Cultural Rights
http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.asp
UN Committee on Economic, Social & Cultural Rights
http://www.ohchr.org/en/hrbodies/cescr/pages/cescrindex.aspx
“Taking Social and Economic Rights More Seriously”
Side event organized by ATD Fourth World and OHCHR
And Co-Sponsored by the Permanent Missions of Belgium, Chile, France and Italy
32nd Regular Session of the Human Rights Council
13 June 2016
Moderator:
Ms. Peggy Hicks, Director, Thematic Engagement, Special Procedures and Right to Development Division, OHCHR
Panellists:
Philip Alston, Special Rapporteur on extreme poverty and human rights
Lucy McKernan, Global Initiative for Economic, Social and Cultural Rights
Rodrigo Uprimny, UN Committee on Economic, Social and Cultural Rights
H.E. Ms. Yvette Stevens, Ambassador of the Republic of Sierra Leone to the UN
INTRODUCTION
Ms. Hicks welcomed the participants on behalf of the OHCHR, ATD Fourth World and the Missions of Belgium, Chile, France and Italy which co-sponsored the side event. After introducing the panelists, she gave the floor first to Professor Alston, noting that his report presented a disturbing critique on the continuing imbalance between the attention given to economic and social rights as compared to civil and political rights, but also offered some useful perspectives on what could be done.
COMMENTS BY PHILIP ALSTON
Professor Alston reported that he had been a member of the Committee on Economic, Social and Cultural Rights for 12 years, finishing in 1998, and had moved after that to work primarily on very different issues. The mandate of Special Rapporteur on extreme poverty has brought him back into the field of social rights, and has enabled him to view things with a fresh eye.
He noted that the record of the international human rights regime in relation to economic and social rights (ESRs) is a mixed picture. On the positive side, the Committee on Economic, Social and Cultural Rights was established 30 years ago because it was recognized that ESRs were relatively neglected. The first special rapporteur to deal explicitly with economic, social and cultural rights was named only 18 years ago, but now there are many excellent rapporteurs dealing with specific sectoral issues. During the same period, OHCHR has developed a great deal of expertise and has made efforts to insert consideration of these issues into many different contexts. Many resolutions on ESRs have been adopted by the Human Rights Council (HRC).
In theory the importance of ESCR was affirmed authoritatively in the Declaration and Programme of Action of the 1993 World Conference on Human Rights in Vienna, which declared in paragraph 5 that “All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.” That statement is extremely important. It might be seen by some as simply a strategic compromise between those who give priority to civil and political rights (CPRs), and those who emphasize ESRs, but it is in fact much more than that. A concept of human rights that focuses on only one half of the equation is deeply flawed, and carries within it the seeds of defeat.
But despite these forward steps, Professor Alston emphasized that the progress achieved has not been as great as we might think in relation to ESRs. Over two billion people still live in multi-dimensional poverty – an indictment on the overall human rights project, but one that seems not to resonate greatly in this setting. If we look at the broader trajectory of economic policy, ESRs are not reflected in the dominant policy moves adopted in this era of neo-liberalism. Instead, they are marginal, acknowledged only out of political correctness.
In the work of the Council, the reports of the country rapporteurs, the reports of the Secretary General on country situations, most of the commissions of enquiry, much of the work on transitional justice, and in the Universal Periodic Review, for example, ESRs play only a very small role. ESRs are recognized in many constitutions – the figures are impressive – but, in the great majority of countries, they are not translated into any meaningful action. Only a handful of countries have jurisprudence to make them justiciable by giving the courts the means to review and uphold them. There are only a handful of countries – including especially Colombia, India, and South Africa – that have a solid body of sophisticated jurisprudence. At the national level, there are many NGOs doing excellent work on ESRs. But at the international level, while there are many groups doing important work in specialized sectors such as health, education, housing, water, food etc., the major international human rights NGOs, such as Amnesty International and Human Rights Watch, continue to accord only marginal relevance to ESR.
On the other hand, WHO’s initiative on universal health coverage and ILO’s initiative on social protection floors represent important breakthroughs on ESRs.
There is now a great deal of criticism of the overall human rights enterprise. In Professor Alston’s view, scholars and some governments are beginning to challenge the validity of the human rights enterprise, and a major reason for that is the neglect of ESRs. He is convinced that until we have a balanced concept of human rights, we will not be able to address the issues that preoccupy so many people, and the concept will thus not have the support of the masses.
Professor Alston set out three steps that he sees as being prerequisites if ESR are to be treated as human rights:
- Recognition: legislation at the national level must recognize these rights
- Institutionalization: governments must create institutions responsible for promoting and facilitating their implementation
- Accountability: measures must be put into place to promote government accountability.
The report that he will present to the Council seeks to highlight some of the ways that this can be done.
COMMENTS BY LUCY MCKERNAN
Lucy McKernan expressed her appreciation to Philip Alston for having raised the issue of the marginality of economic and social rights, and indicated that she agreed with his analysis. Focusing her comments on the Human Rights Council, she affirmed that the most active debates within the Council are clearly around civil and political issues. Economic and social rights resolutions do not attract the same level of scrutiny or high-level negotiation, and States are less likely to make statements during the Council on economic and social rights issues. Similarly, the most active NGOs working in the Council tend to focus more of their advocacy on civil and political rights. She quoted research undertaken by the Centre on Economic and Social Rights, which found that:
- Of the specific recommendations made within the UPR, 17% are related to economic, social and cultural rights versus 37% to civil and political rights.
- Recommendations on economic and social rights are less policy-oriented and are more vague in terms of the outcome sought; and
- Of the economic and social rights issues addressed in the UPR, rights which may be perceived to focus more on the redistribution of resources (such as housing, water, land, environment) received the least attention.
She pointed out that, nevertheless, there are many initiatives within the Council around economic and social rights – for example, Portugal’s initiative in establishing a ‘Group of Friends of ESCRs’, the expansion of the core group on the right to adequate housing, and the slowly increasing support from all regions for the right to food resolution. She also mentioned as a positive step forward the normative development of the rights to water and sanitation achieved through resolutions in both the Council and the General Assembly.
She then made three points on how the imbalance could be addressed :
- Move away from the tendency to portray the marginality of ESC rights as the result of a division between countries of the Global North and Global South, as there are States from both the North and South who are committed to advancing ESC rights in the Council, and States from both the North and South who do not promote and protect ESC rights in any substantive way.
- Underline the difference between development and a human-rights approach. Suggesting that development or poverty alleviation efforts are synonymous with economic and social rights misrepresents the nature of these rights and the value of a rights-based approach. She pointed out that Professor Alston, in his report, explains the importance of a human rights approach as:
- Ensuring that the rights of individuals are not lost in the collective aims of an initiative;
- Requiring States to act now, rather than allowing long-term goals to be an excuse for inaction;
- Recognising the dignity and agency of all individuals and therefore empowering;
- Involving as a central component the principle of accountability.
She emphasized the need to invite the Council to contribute to “the work of the high-level political forum”[1] for the SDGs “by ensuring that the SDGs are in fact implemented in a rights-respecting and rights-promoting manner.”
3) Recommit to indivisibility, as proclaimed at the Vienna Conference on Human Rights. She cited initiatives within the Council that incorporate both ESRs and CPRs: the resolution on human rights defenders which focused on economic and social rights defenders at the March 2016 session of the Council, and the work by a number of special procedures which have highlighted the economic and social rights dimensions of traditionally civil and political rights issues. For example:
- the Study of the Working Group on Enforced Disappearances which found that those advocating for ESC rights are at a higher risk of enforced disappearance and that those whose ESC rights are not realised are more vulnerable to enforced disappearance;[2]
- reports on Cambodia, Eritrea, North Korea that focused on issues such as forced evictions, the right to food, the situation of women and indigenous peoples, labour rights, and land issues.
Country specific resolutions also offer opportunities for the indivisibility of rights to be recognized in the work of the Council. An example is the case of Sri Lanka, where priority has been given to war crimes, rather than to violations of economic and social rights.
Taking an indivisibility approach is also going to produce more sustainable and enduring solutions to serious human rights situations. Recent history has shown that inequality and poverty are both causes and contributors to conflict and that ignoring socio-economic grievances can, in some cases lead to radicalization and violent extremism, to the undermining of political transitions and to massive international migration. This is not to suggest that the value of taking ESC rights seriously is merely instrumental – in fact it goes to the very heart of the human rights project.
COMMENTS BY RODRIGO UPRIMNY
Professor Uprimny opened by stating that his opinions were his own, and not necessarily those of the other members of the Committee on Economic, Social and Cultural Rights. He agreed with Philip Alston’s conclusions, and found interesting his recommendation of the IRA framework as a way of overcoming the marginalization of ESRs. That framework must also be taken into the international sphere, because in the last 25 years, there have been economic and legal evolutions that continue to undermine the centrality of human rights.
His comments focused on three points.
- The persistence of the marginality of ESRs can be illustrated with a single example. Some four years ago, a French company, Veolia, sued Egypt before a panel of investment arbitration because the government increased the minimum wage for all workers. It argued that the government was violating the “fair and equitable treatment clause” and making an “indirect expropriation” of its expected profits, since they had invested in the country because of its low wages. Claims of this type have been made all over the world by other corporations, such as Phillip Morris that has sued Uruguay because this State wanted to apply the WHO Framework Convention on Tobbacco Control and wanted to make health warnings cover 80% of cigarettes packs. The company argues that this regulation violated its legally protected trademarks. These suits are outrageous because Sates are sued because they try to protect the ESRs of its citizens but unfortunately they have not produced a scandal in the human rights community. If a company sued a State because it had strengthened the rules against torture or arbitrary detention, claiming that those rules would cause it to lose money, such an action would be immediately raised before the Council and would be the source of huge debate. But nothing happened as a result of Veolia’s or Phillip Morris suits, nor of similar ones by other companies around the world, where States have been sued because they have strengthened the regulations because of economic, social and environmental concerns. This clearly shows the second-class citizenship of ESRs.
And yet all of the arguments as to why ESRs should not be second to CPRs have been undermined by legal scholarship. For instance, the contention that ESRs are only programmatic, whereas CPRs are immediate, or that CPRs are only negative obligations whereas ESRs are only positive obligations. We now know that all rights imply different kinds of obligations, and that they are similar across the various rights. In addition, from experience, even if the cases are only national cases, we have examples that show that there is a reasonable justiciability of ESRs. We have evidence in theoretical as well as practical terms, as in Colombia and South Africa where greater commitment to ESRs is evident.
- On the RIA framework, Professor Uprimny stressed that he liked it very much, because it is strong and yet simple. To illustrate the power of this framework, Professor Uprimny took the example of a civil and political right – the right to participate in political life. In order for it to be materialized, it needs to be recognized clearly in legislation – with a definition of who can vote, in which circumstances, at what intervals, etc. It must also be institutionalized through an electoral body that organizes the election, a budget to carry out the election, and a definition of the procedures. Finally, there needs to be accountability. If a person is deprived of the right to vote, he or she should be able to go to a judge and claim that right. That is why elections are justiciable – RIA is in place. For many ESRs, that is lacking, as shown in Professor Alston’s report.
- Professor Uprimny expressed great skepticism about the possibility of implementing the RIA framework, because globalization has brought evolutions in the legal and economic spheres over the last 25 years that are marginalizing ESRs. Many ESRs are not justiciable because there is no international accountability. As a constitutional lawyer, Professor Uprimny has compared ESRs in constitutional law – in the Weimar Republic, in the post-war European constitutions, in constitutions across Latin America. He affirmed that he has seen that there are three factors that have to be strongly in place in order for ESRs to be effectively implemented:
- a softening of the constitutional protection of the right to property and economic freedoms in the aim of social justice
- strong economic regulatory powers on the part of the State
- increased and progressive taxation.
He affirmed that there is no country in the world that has achieved a high level of ESRs without these three factors. However, developments over the last 25 years have undermined the ability of the State to provide these conditions. First, the trend today is to protect more and more property rights and create new forms of property, such as intellectual property, in large part because of investment and free trade treaties. Second, the economic globalization and the establishment of the investor-state- dispute settlement gives transnational companies the possibility to sue governments before international panels of investment arbitration, with concepts such as “indirect expropriation” that undermines the regulatory power of States, as shown in the cases of Veolia or Phillip Morris. And third, also as a result of globalization, there is a race to the bottom in taxes in order to attract corporations and investments, as pointed out by the so called “Independent Commission for the Reform of International Corporate Taxation” of which make part persons such as the nobel prize Joseph Stiglitz, the former director of the ECLA Jose Antonio Ocampo and the former rapporteur on extreme poverty Magdalena Sepúlveda. .
Professor Uprimny ended by emphasizing that, in his opinion, the challenge to ESRs is even greater than expressed by Professor Alston, because the international environment is not conducive to their implementation.
COMMENTS BY AMBASSADOR STEVENS
Ambassador Stevens agreed that in the three years that she has represented her country in the Human Rights Council, she has seen that ESRs are marginalized. Although there are frequent references to the Vienna Programme of Action, which in paragraph 14 stresses that the eradication of extreme poverty requires the full and effective enjoyment of all human rights, business as usual continues. She stressed the need to look at the root causes of this marginalization, of which one is the fact that a number of countries which are pace-setters have not ratified the Covenant on Economic, Social and Cultural Rights. A campaign is needed to encourage them to ratify this Covenant, as difficult as that might seem.
Having participated in 90 UPRs, she has seen that the presentations on countries from some parts of the world focus a great deal on ESRs, while those on countries in other parts of the world focus on CPRs. What is even clearer is that when it comes to recommendations, even countries which present dire situations in terms of socio-economic conditions primarily receive recommendations related to civil and political rights. ESRs are ignored. It is important to see how this disparity can be rectified.
Ambassador Stevens then pointed out that another important factor which was mentioned in the Vienna Programme of Action is the need for indicators. Many indicators in areas such as the right to water have been developed, but for the moment are separated from the discussions on the SDGs. A commitment to human rights has not been expressed in their formulation, and therefore every available opportunity must be seized to ensure that ESRs are given the attention they deserve in whatever development agenda is being promoted. The primary theme of Agenda 2030 – “No one left behind” – is an affirmation of the fact that everyone should enjoy all rights.
It is also important to show the links between non-respect for ESRs and its effects on CPRs. Ambassador Stevens affirmed that she has had difficulties in arguing that the denial of ESRs could lead to the compromise of CPRs. The response has been that this is just an excuse for promoting ESRs. More examples are needed of the impact of the denial of ESRs on CPRs.
And lastly, Ambassador Stevens emphasized the many factors at the international level that have negative effects on the enjoyment of ESRs in some countries. In the area of trade, for example, Sierra Leone is a rich country in terms of natural resources, but is still poor. At the moment, it suffers from falling commodity prices and unfair terms of trade. She asked how factors such as these, which prevent countries from implementing ESRs, can be brought into the discussion in different fora.
Because of factors such as those above, it is clear that the justiciability of ESRs falls beyond the national realm. If the ESRs are to become justiciable, then all actors in the international community that have a part to play must be held accountable.
Discussion
The Moderator then invited Philip Alston to comment on the panel’s interventions, and especially on the international framework required for the enjoyment of ESRs. She also asked all members of the panel to comment on the issue of the SDGs and explore ways in which Agenda 2030 offers opportunities for promoting ESRs, such as the meetings of the High-Level Political Forum, the work on indicators, etc. She underlined the need to highlight the ways in which the discourse on development can mask ESRs.
Reactions by Philip Alston
Professor Alston stated his agreement with all of the interventions. He informed the participants that a seminar had been organized over the previous week-end on the SDGs and human rights, attended by several special rapporteurs and treaty body members. There was a great deal of disillusionment with the way in which the SDGs had evolved, and the degree to which human rights are not reflected in a meaningful way (except for the right to water, ESRs are not mentioned in relation to any of the other economic and social goals). Since gender issues are an important element in the SDGs, the suggestion was made that these commitments could perhaps serve as an entry point. The general conclusion of the seminar was that the human rights community needs to engage with the SDG process, and needs to do so strategically by identifying the entry points that are going to be productive. There is a risk that the SDG process will be a huge, all-consuming activity, and so how to inject human rights into them remains to be seen. But it is our responsibility to ensure that it happens.
Comments and questions from the floor
When the Moderator opened the floor for comments and questions, a representative of the International Movement ATD Fourth World referred to the development of new regional and bilateral trade agreements, which include investor-state dispute settlement mechanisms that over-represent investors’ interests. He asked whether the HRC or the Committee on Economic, Social and Cultural Rights were working on ways to counterbalance the lack of recognition of human rights in such agreements. A second comment suggested that one way of integrating human rights into the SDGs might be to add the RIA indicators to the SDG indicators currently being developed. He asked for the panel’s comments on both questions.
The representative of the Centre for Economic and Social Rights expressed her pleasure that the Special Rapporteur’s report had opened up space to talk about this issue. She mentioned the research the Centre had undertaken comparing the attention given to ESRs and to CPRs in the UPR, using UPR-Info’s database of the body’s recommendations from its inception to the 21st session in January 2016. The study also examined the proportion of ESCR-focused recommendations that had been accepted by states under review. The research revealed that, despite a rhetorical commitment to the indivisibility and interdependence of all human rights, ESCRs have received much less attention at every stage of the entire UPR process, and ESCR-specific recommendations amount to just under one-fifth of all recommendations. She stressed that economic rights are the main area of contention, and that the resistance must be addressed with a methodological approach. She also underscored that the majority of NGOs working in Geneva tend to focus more of their advocacy on civil and political rights.
The representative of the International Disability Alliance asked how the specificities and intersectionalities of discrimination could be addressed. How can the barriers faced by persons who suffer from multiple factors of discrimination – such as women with disabilities who are also from minority ethnic groups, or children who suffer from albinism – be demonstrated, and States guided on the actions to be taken? What specificities can be encouraged rather than general recommendations? What can civil society do in terms of advocacy and how can the human rights community support States on these issues?
Responses from the panel
Professor Uprimny agreed that the over-protection of property rights was a worrisome development of these last years. He put forward two ways to address this issue. First, the extraterritoriality obligations of Member States must be developed to a greater extent, and their responsibility for the protection of rights in the treaties they sign. New trade agreements should contain an explicit recognition of ESRs as within the regulatory power of States. Second, in legal terms, the notion that human rights obligations prevail over commercial obligations must be accepted, and that panels of arbitration should take into account human rights obligations even when they are not in the treaties, as defended by the Independent Expert on the Promotion of a Democratic and Equitable Order, Professor Alfred-Maurice de Zayas, who developed this argument in his fourth report to the General Assembly, and put forward an important suggestion, which is that the General Assembly should ask the International Court of Justice should and advisory opinion of the role of human rights in the investment arbitration disputes. This will take many important legal battles in the years to come.
Ambassador Stevens emphasized the need to be vigilant that human rights are not lost in the rhetoric that they should be “mainstreamed,” because they can end up “drowning.” It is necessary to be extremely vigilant in relation to the SDGs, because when the issue of human rights in the 2030 Agenda is raised, the response is often that “they run through everything.” The implementation of rights in the Agenda needs to carefully monitored.
One of the problems in relation to ESCRs is that there are groups that still believe that many issues falling within those rights do not belong in the HRC. Ambassador Stevens stressed that when she came to the HRC, she was surprised to see that although there is a right to health, which includes access to medicines, when it came to resolutions on related issues, some States would abstain or vote against them. When confronted with the fact that in her country many people are still dying from malaria whereas inexpensive drugs exist that could save them, the response was that this was not an issue for the HRC. Sierra Leone just went through the bitter Ebola crisis. It is true that the country did not have the necessary health infrastructure, but what is the responsibility of the international community? The Ebola virus was identified 40 years ago, but there is still no vaccine or drugs to treat it, as it is considered to be a disease of the poor, who cannot afford to pay a price that would cover the costs of research and development. Ambassador Stevens asked how such areas of ESRs can be explored within the HRC.
Lucy McKernan recommended the report on the UPR issued by the Center for Economic and Social Rights as providing very useful information for a discussion of the problem and possible actions that can be taken to change the UPR recommendations. She agreed with the comments on the SDGs, and affirmed that there is a role for civil society to help align the work that is coming out of the treaty bodies with the SDGs, and encourage countries to utilize the RIA framework for the implementation of the SDGs. In addition, she suggested that missions in Geneva need to be in closer contact with their colleagues in New York and more broadly, with those active in other processes such as in the World Trade Organization, in order to be coherent in their positions. The silos need to be broken down both within States as well as within civil society. There needs to be more cross-over between the various spheres not only within the HRC.
Professor Alston stated that the comments on the SDGs and indicators were very interesting. On the issue of mainstreaming, his instinct is that the human rights community should make full use of the SDGs in its work, but not waste too much time on other institutional arrangements that are set up, because they are vast and relatively immune to much of what the human rights community wants to do.
On Ambassador Stevens’ point, he stated that it is a classic game by some delegations to say that an issue does not belong in the HRC, to claim that it belongs within another institution – the WTO, the World Bank, the WHO – and then the representative of the same country to those institutions will counter that the issue belongs in the HRC. For what they want is for no international institution to deal with it.
Professor Alston commended the Center for Economic and Social Rights on it work on fiscal policy. He expressed his regret that during the eight years that he had chaired the Committee on Economic, Social and Cultural Rights, it had never occurred to him that tax policy is central – who is taxed, what is taxed, and how the funds are spent. It was only when States would respond that they could not possibly respect ESRs because of lack of resources that he realized that it was true because they exempted all of the elites from paying taxes, or they did not bother to collect taxes, or they prided themselves on low rates of taxation. They might as well have proudly said that they had institutionalized widespread mortality, because they do not tax people. Human rights experts have no option but to engage with these other areas, even though they would rather stay out of them because of their complexity.
He agreed that the issue of intersectionality raised by the International Disability Alliance is difficult and is one that troubles him. It is one thing to be extremely poor, but it something else to have a disability and to be extremely poor. It is the same often with LGBTI issues. He mentioned in another forum last week how moved he was in Chile to meet with a group of transgender people, many of whom were clearly condemned to poverty because of discrimination and lack of family support. The human rights community needs to look more into how it can deal with the intersectionality issue.
At the same time, Professor Alston suggested that it would be good to come at the issue from the other point of view, and to look at how the disability community, the indigenous community, and even the women’s rights community, can themselves contribute to the extreme poverty debate. Often they focus more on the traditional forms of exclusion and do not get deeply into the poverty dimension as well.
Comments and questions from the floor
Ms. Hicks emphasized the comments about the use of silos in order to avoid moving forward strategically on these issues, and expressed the hope that the participants would work on breaking them down.
A representative of ATD Fourth World asked Professor Alston about the role of people living in extreme poverty in the RIA framework, for it does not seem very participative. He asked whether he saw a role for them in the fight for their rights. Otherwise, it is like a group of men discussing the rights of women.
The representative of ARC international asked whether there is now greater political receptivity to the inequality question as a result of recent social movements.
Ms. Hicks added that when she looked at the RIA framework, one of the pieces not sufficiently addressed was that of building popular support in a way that could be channelled to effectively bring about change. She asked for the panel’s comments on how the movements that have grown out of economic injustice, such as in Tunisia, could be used more effectively and how they fit into the more legal approach that has been taken to date.
Responses by the panellists
Professor Alston responded that on the role of families in the SDGs, it was necessary to build popular support in general. One of the advantages of the human rights approach is that it is very empowering. The World Bank claims that it does exactly what the human rights community wants, and that it is spending more money on education than any other institution. But there is a difference between the right to education, which is empowering, and a programme on education, which is empowering for bureaucrats. It might be extremely well-intentioned, but the impact is radically different. The human rights community needs to start promoting more strongly the concept of rights. The classic example comes from India, where the right to food and the right to education movements in India are vast popular movements that demand recognition by the government. Eventually, the movements led to major legislation and institutional arrangements, as well as an amendment to the constitution to refer to the right to education. Rather than general claims to governments, issues such as food and education need to be framed as rights-based claims, which most governments have already recognized at the international level.
To the question about the IMF and the World Bank, he responded that he did not see them taking action on the issue of inequality in practical terms, in spite of their declarations of concern about its impact. ESRs must be the starting point for a framework for reducing inequality, and they do not recognize human rights as relevant to their mandates.
Lucy McKernan stressed the importance of participation in ESRs. NGOs need to be more active in mobilizing for these rights, including within the HRC. The advocates who come to the HRC more often come to raise CPRs. It is the role of civil society in particular to encourage people who are mobilizing around ESRs on the ground to make a greater connection with Geneva so that States here can hear the voices of those who are actually witnessing human rights violations.
Ambassador Stevens explained that her government supports the resolution on the protection of families, because families within countries such as hers are the ones that ensure that individual rights are respected. She explained that she came from a very poor family, and the decision to educate her was taken by her family. It is important to work through families in order to promote individual rights.
On the question of the SDGs, Ambassador Stevens stressed that more work needs to be done on the resources required in order for everyone to enjoy ESRs. An analysis needs to be made of each country’s budget, for even if 100% of its current budget were to be allocated to education, for example, it would still not be enough. The Addis Ababa framework also refers to the fact that governments need to be able to raise the required resources. Otherwise, even governments with the best intentions can face the situation of lack of resources. If we are going to piggy-back on the SDGs, we need to see how much it will cost to respect ESRs, and how it could be generated. There are countries which want to do it, but cannot.
Professor Uprimny stressed that in many cases, the recognition of human rights for persons and groups has a powerful mobilizing effect, for it legitimizes their claim. Institutionalizing mechanisms for participation is an important part of mobilization. He pointed out that political support is particularly needed for people who do not enjoy social rights in affluent countries, for unlike the situation in countries where the majority of the population is poor, in affluent countries those who are well off resist being taxed for the minority whom they feel are not doing enough for themselves. It is one of the challenges of democracies.
On the issue of inequality, the discussion shows that ESRs cannot be promoted without also addressing complex economic issues, such as taxation policies, which in the past the human rights community overlooked.
Comments and questions from the floor
The International Service for Human Rights expressed satisfaction that the panellists had emphasized that violations of ESRs are the result of deliberate choices, and not just a lack of resources. It was suggested that they should perhaps be addressed under Item 4 of the Council’s agenda, in order to move from a general programmatic discussion to one of addressing violations.
A representative of ATD Fourth World stated that some development experts are now affirming that the main challenge facing the international community is extreme inequality, and not extreme poverty, and asked for Professor Alston’s opinion as the holder of the extreme poverty mandate.
Responses and concluding comments
Ambassador Stevens emphasized the need to look at the costs of realizing ESRs within each country, and examining how the required resources could be raised. In Sierra Leone, even if 35% of the government budget would be allocated to health, it would not be sufficient to ensure access to quality health care. The SDGs encourage governments to raise their level of income, but there are many countries where the funds are simply not available to ensure ESRs at this point in time.
Professor Uprimny emphasized that extreme inequality is a major problem, for it undermines not only ESRs but the fulfilment of political rights as well. The Committee on ESCRs has not addressed this issue, which requires more scholarship. On the question of whether or not a government makes a deliberate choice not to ensure the enjoyment of ESRs, he stressed that if a government has passed many exemptions on the items that are important to the rich, then it means that it has made a deliberate decision not to fund ESRs.
Lucy McKernan agreed that deliberate policy choices are made in the allocation of resources. She cited the example of the report by the Commission of Inquiry on North Korea, which documented the denial of food. This is an extreme example, for usually the policy choices constitute an indirect denial of ESRs. It is encouraging that human rights experts are becoming more comfortable in discussing economic issues. A report was submitted to CEDAW on the banking privacy policy in Switzerland that enables the rich to hide their money overseas and thus negatively impacts the ability of their countries to ensure ESRs. Ms. McKernan asked whether it would be possible for the HRC to take up a resolution on a specific country in relation to an ESR, and stressed the need to start working towards this goal. The first step would be to recognize the indivisibility of rights.
Professor Alston stressed that a point that is implicit in his report but not yet sufficiently developed is that most governments do not really believe in ESRs. There is no sense of outrage at the tens of thousands of people who are starving to death, or who are not receiving any basic medical care. This is where obtaining a formal recognition of ESRs is important at the national level. In Australia, people would say that it doesn’t need a right to education, because it has a highly developed system to ensure education for all, and so there is never a focus on the rights dimension. And so the question as to how we can move from a general programmatic approach to an enforcement approach is an important one. How to create a sense of outrage over ESRs violations?
Professor Alston agreed that inequality is important, but that a focus on inequality in and of itself would not eradicate extreme poverty, because it will not address the discrimination and shame and blame that are among the factors that maintain people in extreme poverty. Any broader efforts would never reach down to that level. The mentality needs to be changed – it should be felt as a disgrace to us that people live in extreme poverty, whereas at present it is seen that it is a disgrace to them.
On the issue of the ways in which governments deliberately violate ESRs, he added that in quite a few governments around the world corruption is rampant. Corruption is not accidental, but is a policy intended to enrich those in power. Taxation is another deliberate decision. In some countries, there is no income tax, but only a value-added tax, which taxes disproportionately those with lower incomes. The rich have their own privatized security systems, or health care facilities. These policies are deliberate decisions not to implement ESRs.
The Moderator thanked all of the participants, and stated that she finds hope in the fact that there is an increased focus on prevention in the human rights field, as well as on root causes, and which provides other opportunities to take forward the framework that Professor Alston proposes in his paper. She concluded that she looks forward to continuing the discussion.
[1] Transforming our world: the 2030 Agenda for Sustainable Development, Resolution adopted by the General Assembly on 25 September 2015, A/RES/70/1, 21 October 2015.
[2] A/HRC/30/38/Add.5
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