Introduction to Human Rights | Lesson 11: “Economic, Social and Cultural Rights”

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

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