The existence of hunger, homelessness, preventable disease, and illiteracy in the world can be considered variously as fate, a tragedy, a predicament, or an injustice. Each of these terms implies different value judgments about whether there is any (human or divine) culpability attached to these ills, whether there is a duty to correct them, and whether they can in fact be resolved.
This chapter considers the successes and limitations of global civil society attempts to frame access to food, housing, health and education as individual human rights, and hunger and malnutrition, homelessness and inadequate housing, and lack of access to health and education as violations of human rights. Such a framing tends to answer the questions of blame, obligation, and solubility in the affirmative. Unlike many other diagnoses, it seeks the solution at the level of the individual. But the answers to questions about where the blame lies and, more importantly, about where the obligation to guarantee the right might lie are often confused and uncertain. This confusion and uncertainty arise from three tensions inherent in the economic and social rights frame, each of which could be considered either as a handicap or as a creative tension.
The first tension is that between the two systems of norms on which the invocation of human rights, including economic and social rights, rests. Human rights are instinctive but also contested moral norms. People are shocked by malnutrition or homelessness just as they are by torture or unfair detention. They feel it as an injustice and an infringement on human dignity, particularly when it is found alongside conspicuous wealth. Hence, statements such as ‘everyone has the right to an education’ or ‘absolute poverty is a violation of human rights’ have a resonance with poor and not so poor people from different parts of the world. At the same time, human rights are also legal norms, laid down, in many variations, in instruments of international and national law, with or without implementation systems. The two normative systems have developed in tandem and are partly dependent on each other, but they are also in tension with each other (see for instance Hart 1961: 205–6; Sen 1984: 73–5). These frictions are exposed particularly forcefully when it comes to the obligations attached to economic and social rights. Morally, the concept that ‘everyone has the right …’ could point towards a wide range of social actors having far-reaching responsibilities. Legally, even the precise obligations of states are far from determined, and any obligations beyond states are even more uncertain and controversial.
This brings us to the second tension and source of confusion. There is a paradox at the heart of human rights law, which again is revealed most forcefully in relation to economic and social rights. On the one hand, the very manner in which human rights are expressed signifies a breach with the tradition of absolute sovereignty, according to which each state could treat its own citizens as it pleased, and no other state had a right or responsibility to interfere. On the other hand, human rights law is also the product of an era that still thought largely in terms of stable populations sitting tight behind their borders and subject only to national political and economic forces. On the obligations side of human rights law there is a heavy assumption that every state has specific obligations to its own citizens, or at least the individuals under its jurisdiction, which go very much beyond obligations to the citizens of the rest of the world. It is when it comes to obligations to the citizens of the rest of the world (‘extraterritorial obligations’ in legal jargon) that international law becomes most nebulous and controversial. This finds expression in the debates surrounding humanitarian intervention, for instance, but it is also a contentious issue when it comes to the obligations of rich states in relation to the economic and social rights of the citizens of poor states. The notion that non-state actors, including inter-governmental organisations, transnational corporations or non-governmental organisations (NGOs), might have legal human rights obligations is even more underdeveloped. The state-oriented way of thinking about obligations has the advantage of legal certainty, and it is in this area that many recent victories, described in this chapter, have been achieved. However, the exclusive reliance on obligations of the state towards its own nationals is also increasingly felt to be inadequate for addressing social justice issues in a globalised and privatised world.
The third tension exclusively concerns economic and social rights, and relates to their position in political theory. They find themselves at the crossroads, or in the crossfire, of a historic confrontation between two political ideologies, liberalism and socialism. Liberals believe that individual rights are the key to a decent political system that transcends despotism, and as such they ‘trump’ matters of normal political debate and policy choice. However, the classical canon of civil rights as it emerged at the heart of liberal thinking during the Enlightenment did not include rights to health, housing, or education, and many self-defined liberals would place all welfare issues in the ‘policy choice’ rather than in the ‘inalienable rights’ category. Socialism, while it comes in even more strands and variations, basically diagnoses inequality between the classes, not despotism, as the main problem to be addressed by a decent political system. Therefore, it does consider redistribution as a political imperative in order to achieve socio-economic equality. But typically it conceives of such schemes at the collective level, and is suspicious of the notion of individual rights, which it associates with bourgeois liberalism. Hence, the pairing of ‘economic and social’ with ‘rights’, while it need not be inherently incompatible with either system, has enemies on both sides, and few champions who root their argument in political theory. The second and third of the tensions described here are graphically represented in Figure 3.1, which shows how economic and social rights could be seen as transcending all positions, or appealing to none.
At worst, economic and social rights can be seen as an obscure sub-discipline of international human rights law, simultaneously disconnected from realpolitik and from grassroots movements through a rarefied utopian legalism with little connection to the real world. At best, they can be seen as a value system that bridges and transcends liberalism and socialism, has a direct appeal to deprived people, and can, if it is further developed at the implementation level, deliver social justice on a global scale. This chapter explores which of these two descriptions best fits the current status and near future of economic and social rights. It sets out to do two things.
First, it describes the history of the ‘economic and social rights’ frame. These rights, of much more mixed ideological origin than civil and political rights, almost accidentally made their way into international human rights law and subsequently became instrumentalised, one might even say perverted, in East–West and North–South confrontations. But they were rediscovered by a small group of activists and academics in the 1980s, who clarified and strengthened their legal significance, and introduced them to new audiences in the human rights and development fields. From there, economic and social rights found increasing acceptance in a number of bilateral and multilateral fora, but also became subject to renewed co-option and bureaucratisation. They also hit a brick wall when it came to the international financial and trade institutions, and initially made little imprint on the discourse of the new global social justice movement.
Second, the chapter revisits the tensions described above, between individualist and collectivist solutions to social justice problems, between economic and social rights as legal and moral norms, and between state-focused and globally oriented ways of thinking about obligations. It does do so not at a theoretical level but through the lens of actual present-day activities of global civil society actors, describing new synergies and new methodologies in their work as well as remaining controversies, blind spots and limitations.
The first elevation into international politics
Economic and social rights are commonly believed to derive primarily from socialist ideologies that came to the fore in the late nineteenth and early twentieth century, in contrast to civil and political rights, which are associated with the eighteenth-century Enlightenment. A closer examination of European political history contradicts this notion. Edward Palmer Thompson shows, for instance, how ‘rioting’ poor and paternalist pamphleteers in England joined forces throughout the eighteenth century to campaign for what they held to be a moral and customary right to affordable, high-quality food, particularly bread, against encroaching market forces (Thompson 1971). Conversely, achieving the general vote, a political right, was central to nineteenth-century socialist concerns (Ishay 2004: 135).
The idea of civil and political rights and economic and social rights as part of an indivisible and global value system was first set out in Franklin Delano Roosevelt’s 1941 famous Four Freedoms speech, which looked forward to ‘a world founded upon four essential human freedoms: freedom of expression; freedom of worship; freedom from fear; and freedom from want’. His freedom from want was also intended to confer international obligations: ‘translated into world terms, [it] means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants’ (Roosevelt 1941). What these ‘understandings’ should amount to was not elaborated. The holistic notion of human rights was subsequently expressed in the Universal Declaration of Human Rights of 1948, which included the right to social security, to work, to rest and leisure, to an adequate standard of living, including food, clothing, housing and medical care, and to education.
Labour rights have had rather a different political trajectory from other economic and social rights through their close relation with the history of trade unionism, and do not form the focus of the rest of this chapter. Neither will ‘cultural rights’, such as the right to speak one’s own language or to take part in communal cultural life. While economic and social rights often have cultural aspects, cultural rights do raise specific issues, to do with minority groups and identity, which are separable from the main concerns regarding economic and social rights.
Soon after the adoption of the Universal Declaration, the cold war divide made itself felt in human rights as everywhere else in international politics. Each bloc appropriated its own version of human rights. According to Western states, led by the United States, only civil and political rights were legally enforceable, whereas economic and social rights were of a programmatic nature, requiring state intervention and therefore to be realised progressively rather than immediately enforceable. The Soviet bloc countered that civil and political rights were a reflection of the interests of the ruling class in capitalist societies. They were meaningless to citizens without the realisation of economic and social rights. But while Western states emerged as opponents, in reality the Soviet bloc was not a wholehearted supporter of economic and social rights qua rights, it merely used them rhetorically in its opposition to civil and political rights (Arambulo 1999: 15–18). The concept of rights, which places entitlement and empowerment at the individual level, went against the Marxist-Leninist model. After more than 20 years of wrangling, two separate human rights treaties were adopted by the United Nations: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). They finally came into force in 1976. ICESCR was the Cinderella of the UN human rights system: it had no monitoring committee of experts, the politicised but influential Commission on Human Rights was kept away from it, and few if any civil society organisations paid any attention to it.
Meanwhile, developing countries sought to add another right to the international catalogue: a United Nations resolution adopted in 1979 said that ‘the right to development is a human right and that equality of opportunity for development is as much a prerogative of nations as of individuals of nations’ (quoted in Sengupta 2002: 863, emphasis added). Given the confusion between ‘states’ and ‘nations’ that is inherent in the very name of the United Nations, this statement transformed development from a human into a state right, more specifically a right of poor states. Thus, it was closely related to the idea of the New International Economic Order. The 1986 Declaration on the Right to Development, adopted by the UN General Assembly, puts more emphasis on the individual level, while also spelling out that there are multiple duty-bearers in relation to human rights. But the Declaration has little legal status and little implementable detail. To this day, independent experts, open-ended working groups and UN task forces are making little-noticed attempts to clarify (or obfuscate) the right to development (Salomon 2005).
Thus, for more than 40 years after the announcement of a world ‘free from want’ by the president of the United States, economic and social rights remained a dead letter. With the exception of labour rights, they failed to inspire global civil society activity. Steering a course that transcended the bitter cold war dispute on human rights was, as an organisation like Amnesty International found, difficult enough. The language of economic and social human rights fitted so badly with any of the major ideologies of the day that it appears to have been beyond the political imagination of the actors and thinkers in civil society. Nor did the ‘right to development’ capture the imagination. Such rights were therefore easily hijacked by a variety of state agendas, which were in reality directed against civil and political rights, or against economic inequality between states.
Eventually, a number of ‘like-minded’ Western states such as Australia, Canada, Denmark, Germany and the Netherlands, which somewhat dissented from ‘Western thought’ as formulated by the United States, became interested in improving the shamefully inadequate procedures to monitor the Covenant. Also, in this new stage of the cold war, the Soviet Union and its satellites warmed to the idea of an enhanced status for economic and social rights just as Reaganite America became increasingly ideologically opposed to them (Alston 1987: 345–9). So, in 1986 18 ‘independent’ experts (some more independent than others) were installed on a new UN Committee on Economic, Social and Cultural Rights. Still, in 1987 Philip Alston, the most dedicated member of the new committee, wrote that: ‘for a variety of historical, ideological, pragmatic, and other reasons, there remains considerable reluctance on the part of many, if not most, human rights NGOs to become involved’ in economic and social rights (Alston 1987: 371–2). This was to change dramatically in the next 15 years.
Discovery by global civil society
In the early 1980s, small groups of activists, philosophers and lawyers were simultaneously but separately beginning to rediscover the most vital and compelling of all economic and social rights, the right to food.
Two very different but novel arguments were advanced in short books by two leading academics, which had a seminal impact on the economic and social rights frame. In Poverty and Famines, published in 1981, economist Amartya Sen analyses a number of famines with a view to demolishing the then-existing paradigm among developmental economists, which held that famines were caused by a general decline in the availability of food. Instead, he argues, ‘A person’s ability to command food – indeed, to command any commodity he wishes to acquire or retain depends on the entitlement relations that govern possession and use in that society. It depends on what he owns, what exchange possibilities are offered to him, what is given to him free, and what is taken away from him’ (Sen 1981: 154–5). Hence, the global focus on increasing agricultural productivity, which had reigned hitherto, was inadequate for solving problems of starvation and famine. Nor could market mechanisms be relied upon to relieve famines because markets respond to ‘entitlements’: individuals’ property and possibilities of exchange, not their physical needs as such. Therefore, policies designed to prevent or relieve famines should tackle the socio-political and legal conditions that govern entitlements in a particular society, not just provide more food. ‘The focus on entitlements’, Sen concludes in his essay, ‘has the effect of emphasizing legal rights … The law stands between food availability and food entitlement’ (Sen 1981: 165–6). At this point Sen does not make a case for a ‘right to food’. ‘Entitlements’, his key concept, are not moral rights but a label for a person’s actual ownership and exchange capabilities. But his argument – that hunger needs to be tackled at the level of entitlements, and that market mechanisms alone will not do this – does point in the direction of policies that alter legal and socio-political structures. The invocation of a right to food can be such an instrument. In a later article, Sen defends the idea of a moral ‘metaright’ to policies that would help make the right to food realisable (Sen 1984). Sen’s argument – that famine (and by extension, as he elaborates in later work, other forms of deprivation) is not caused by absolute scarcity but by legal and political circumstances – was not wholly original even at the time. But it was groundbreaking for a mathematically trained economist armed with data and equations to present such an analysis, and it profoundly affected the hitherto rather technical thinking about development in international institutions. It laid the foundations for the later adoption of ‘rights-based approaches’ to development.
Political philosopher Henry Shue’s Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (1980) is more directly concerned with policy, but has in fact had a more indirect effect on policy-makers. It attacks the distinctions made between civil and political rights, constructed as requiring a duty only of non-interference, and economic and social ones, constructed as requiring positive intervention. Instead, Shue argues that the three most basic rights, which underlie all others, are those to physical security, to subsistence (fear and want again), and to liberty. The first two of these he subjects to the exact same analysis of correlative (negative and positive) duties. He distinguishes three types of duties: to avoid depriving people of their rights, to protect them against such deprivation by others, and to aid those whose rights have already been deprived (Shue 1980: 35–64). This tripartite categorisation of obligations, later adapted to ‘respect/protect/fulfil’, has been a tremendous inspiration to subsequent generations of legal scholars trying to establish exactly what obligations economic and social rights entail. The trinity of obligations has been widely cited by judges (see Box 3.2) and has made its way into the wording of the South African Constitution.
Finally, international lawyers began to take notice of economic and social rights, organising conferences on the right to food in Norway in 1981 and the Netherlands in 1984, and generating associated publications (Eide et al. 1984; Alston and Tomasevski 1984). A third meeting, in 1986, went beyond the right to food. In this four-day conference in Maastricht, a group of 29 experts including four members of the brand-new UN Committee on Economic, Social and Cultural Rights succeeded in drafting and unanimously agreeing the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles 1987). These 103 principles provided the new committee with a point of reference for interpreting the sometimes obscure and contradictory legal text of the Covenant.
Deepening and widening the focus on economic and social rights
In academia, the Limburg Principles sparked innumerable articles and a spate of doctoral dissertations, constituting a new field of expertise within human rights scholarship. This began to address objections against economic and social rights as ‘too vague’, ‘too costly’, or ‘not amenable to judicial review’. The objection often raised against the justiciability of economic and social rights – namely, that the Covenant allows the rights to be ‘progressively realised’ rather than immediately guaranteed – was met with the notion that each right has a ‘minimum core content’ (and a related, operationalised and context-dependent ‘minimum threshold’) that does require immediate implementation. Shue’s tripartite division of obligations was elaborated for different rights, and supplemented with another categorisation into ‘four A’s’: food, health or housing must be available, accessible, acceptable and adaptable. Again, there are variations on this theme. More recently, scholars have taken their cue from activists’ work by transferring their focus from the nature of the obligations to a ‘violations approach’, working outwards from the most egregious violations.
Increasingly, academic and practising lawyers have also begun to test the justiciability of economic and social rights by bringing lawsuits before domestic courts, with some remarkable results (discussed in the next section). Many legal scholars are now also lobbying for an individual complaints procedure at the international level (also discussed below).
In the NGO field, the foundation of FIAN was followed in 1987 by Habitat International Coalition, which transformed itself in that year from a rather lifeless federation of housing corporations and local authorities into an organisation committed to the right to adequate housing, based in the South and focused on lobbying at the UN (Habitat URL). It was followed in 1992 by the establishment of the Centre on Housing Rights and Evictions (COHRE) and in 1993 by the establishment of the Center for Economic and Social Rights (CESR), founded by recent Harvard graduates in New York. All have grown from kitchen-table initiatives into medium-sized international NGOs. In their wake have come hundreds of other, mainly domestic, organisations working specifically in the area of economic and social rights.
The second elevation into international politics
The human rights community
At the World Conference on Human Rights in Vienna, 1993 – the first big human rights conference after the cold war – the formula first adopted in 1968, that human rights and fundamental freedoms are indivisible, was expanded to ‘all human rights are universal, indivisible and interdependent and interrelated’. This mantra has been much repeated and celebrated by economic and social rights advocates, but it was a victory only at the rhetorical level, and against relatively little opposition. At the time the human rights debate had moved on to a challenge to the universality of human rights by so-called Asian values propagated by Indonesia, Malaysia and Singapore. Economic and social rights were not a major bone of contention.
Another innovation agreed at the Vienna conference may have been of more practical relevance to the status of economic and social rights. It was decided that the UN should have a global ‘face’ of human rights in the form of a high commissioner. The second incumbent of this post, the vocal Mary Robinson, committed herself to redressing the imbalance of attention between civil and political versus economic and social rights. She famously emphasised time and again that extreme poverty was the worst kind of human rights abuse. This constituted a paradigm shift. Most human rights experts at that time, and perhaps still, would have identified situations of genocide or ethnic cleansing as the worst form of human rights abuse. Most development experts would have been inclined to think of extreme poverty as an intractable problem, not a human rights violation.
From the mid-1990s, global mainstream human rights organisations slowly and gingerly began to take up the economic and social rights agenda. Some, such as the International Commission of Jurists, have always supported them at an abstract level, but devote relatively little attention to them. Others, such as Human Rights Watch, gradually incorporated more work on economic and social rights into their daily practices, but maintain a very narrow view on what is appropriate economic and social rights advocacy for an organisation such as theirs (see Box 3.4). Amnesty International finally and famously incorporated economic, social and cultural rights into its mandate in 2001. The organisation still considers itself to be in a learning phase in relation to economic and social rights, and is only gradually expanding its focus from ‘respect’ violations directly connected to earlier campaigns on civil and political rights, such as for instance the denial of access to work, health and education that has resulted from the building of the wall in the Palestinian Occupied Territories (Amnesty International 2005).
At the global level, campaigning for a UN complaints procedure for individuals, to be established via an ‘optional protocol’ to the Covenant, has since 1993 become one of the main focuses of the human rights community. Numerous unofficial drafts exist. Nonetheless, it was not until 2003 that the UN Human Rights Commission established an ‘Open Ended Working Group’, that is, a talking shop, to consider such a protocol. The year 2006 will be crucial for the individual complaints procedure. After three years of deliberation, the Working Group will hold its last session, and the first session of the new Human Rights Council, convening in June 2006, is expected to decide whether or not to go ahead with drafting a protocol. If there is not enough support, there will be no individual complaints procedure in the foreseeable future (ESCR Protocol Now URL).
The development community
Human rights and development were separated at birth, given over to different organisations and mechanisms within the United Nations system. At the non-governmental level, too, separate organisations developed in these fields, which particularly at the global policy-making level had little contact. Human rights entered the radar screen of development organisations only with the Vienna Conference of 1993. For instance, this spurred Novib, now the Dutch member of Oxfam International, to support the foundation of the Platform for Human Rights, Development and Democracy (PIDHDD URL) in Latin America, now one of the strongest actors on economic and social rights.
In preparation for the 1995 World Summit for Social Development in Copenhagen, a coalition of disparate, especially Southern, groups, again funded by Novib, collaborated in a bid to get states to make concrete commitments on economic and social issues. After much discussion, especially virtual discussion via the nascent Alliance for Progressive Communications (APC) network, the coalition came to employ a ‘merger between a “rights-based” approach and a macro-economic approach’, out of which the Social Watch network was born (Van Reisen 2000). This network, as the name suggests, takes the human rights tradition of monitoring state performance according to specific benchmarks into the social development realm (Social Watch URL).
Another impetus came from UNDP which, with the publication of the annual Human Development Report in 1990, had relaunched itself as a laboratory of new ideas in development thinking. In 2000, having explored participation, human security and gender in previous editions, it gave a new push to the incorporation of human rights into development theory and practice with its report Human Rights and Human Development (UNDP 2000).
However, human rights are not the only new concept to have seeped into development thinking in recent years; they compete with many others. The development field has a remarkable capacity for absorbing paradigms that challenge it. In the 1990s development variously became sustainable development, gender-sensitive development, and more recently conflict-sensitive development, as well as rights-based development. But to what extent is development practice affected by these changes in terminology? Peter Uvin (2002) distinguishes three levels of adoption of the rights-based paradigm: a purely rhetorical-formulaic incorporation, an add-on leading to the incorporation of some human rights programmes and projects in the overall operations of an organisation, and, most rarely, ‘a fundamental rethinking of the development paradigm itself’, ideally leading to transformation at the operational level.
At the level of rhetoric, Uvin identifies two devices. The first is to claim that development organisations have always been in the business of fulfilling human rights, and more specifically economic and social rights. Thus he quotes the World Bank, which claims that ‘its lending over the past 50 years for education, health care, nutrition, sanitation, housing, environmental protection and agriculture have helped turn rights into reality for millions’ (World Bank 1999: 3–4). Even such rhetorical adoption of human rights may not be entirely without consequences. Katarina Tomasevski, the UN Special Rapporteur on the Right to Education, has described how the Bank has been persuaded to shift from a position of charging fees for primary education to championing free education (Tomasevski 2005: 719–20).
The second and opposite rhetorical trick is found much more often in the publications and websites of development NGOs.
It consists of suggesting that major, epochal changes are now underway in the development enterprise, and they follow directly from the blinding realization of the crucial importance of human rights in development practice. The key human rights contribution to development practice, as repeated in countless documents, is the need for the engagement and participation of the poor in the processes that affect their lives. This argument is breathlessly presented as a major breakthrough that we all ought to feel truly pleased about, as if development practitioners had not been proposing exactly the same thing for decades now, with very little to show for it. (Uvin 2002: 4)
However, most organisations have not confined their commitment to human rights purely to rhetoric. The majority have reached Uvin’s second level of adoption, having begun to institute some human rights programmes. International organisations such as UNDP, the bilateral development agencies of Canada, Denmark, Norway and Sweden, and NGOs including Save the Children Fund and Care all fall into this category (Darrow and Tomas 2005: 480; Piron 2005). Typically, this adoption translates simply into financial support for projects of local and international human rights organisations, which sometimes include new specialised economic and social rights organisations or hybrids between traditional fields.
Has any organisation reached the third level of engagement, namely, rethinking the development paradigm and transforming development practice at the operational level? Only a few organisations might claim genuinely to have achieved this. ActionAid, Oxfam and UNICEF have most explicitly revamped their entire mandate, basing it on human rights. UNICEF explicitly bases its work first and foremost on the widely ratified Convention on the Rights of the Child (UNICEF URL). ActionAid and Oxfam do not specifically refer to human rights treaties (a point of criticism by traditional human rights advocates), but instead base themselves on a self-defined set of rights. In the case of ActionAid these are ‘women’s rights, the right to education, the right to food, the right to human security during conflicts and emergencies, the right to a life of dignity in the face of HIV and AIDS and the right to just and democratic governance’ (ActionAid International 2005). Oxfam bases all its programmes on five more holistically expressed ‘rights’: the right to a sustainable livelihood, the right to basic social services, the right to life and security, the right to be heard, and the right to an identity (Oxfam International 2001).
It is rather early to tell to what extent these commitments are transforming the practices of the organisations. Various pitfalls can be identified. The first is that, having incorporated human rights, development organisations, ever in pursuit (as Uvin, 2002: 4, points out) of the moral high ground, move on to the next fashionable concept. Certainly in the latest Oxfam publications, there seems to be a shift towards ‘economic and social justice’. The second danger is a facile relabelling of existing projects to fit with the new objectives. In ActionAid’s right to education, or in Oxfam’s right to basic social services, old service-delivery mandates are easily recognised, while the right ‘to be heard’ reflects more recent preoccupations with participation and accountability. The third and most pervasive problem is a very limited understanding of the obligations that flow from human rights. Time and again, documents on rights-based development assert either that rights-based projects can help developing country governments meet basic human rights or, more confrontationally, that they help the citizens of developing countries hold their governments accountable. Some have viewed this cynically, as reintroducing conditionality through the back door, via the beneficiaries (Cornwall and Nyamu-Musembi 2005: 14). Others look upon it more benignly as a tool to empower the poor and marginalised. Even so, the state, and in particular the developmental state, cannot be the be-all and end-all for the fulfilment of economic and social rights. Other states, international financial institutions and transnational corporations may have to assume obligations in order to guarantee effective fulfilment. But the buck does not stop there. Development organisations, whether non-governmental, bilateral or intergovernmental, often have a bigger presence in the health or education sector of developing countries than the state itself. The rhetoric of rights-based development has gone hand in hand with the rhetoric of accountability, but no donor agency has yet spelled out that, in the name of rights-based development, it can henceforth be held accountable by beneficiaries or non-beneficiaries on a specific, self-defined or – better still – legally documented set of human rights obligations. In rights-based development, the rights are for the poor, but the obligations are born by the poor state alone. Development agencies do not recognise themselves as power-holders with possible obligations, and let themselves off the hook.
Three cases are described in greater detail: the Grootboom case on the right to housing in South Africa, the Right to Food Campaign in India, and the intervention on the right to health in free trade negotiations in Ecuador. The first was a landmark advance in justiciability, the second showed a Supreme Court becoming proactively engaged in implementation, and the third is an initiative with both legal and national and international political aspects.
South Africa’s new post-apartheid constitution, inaugurated in 1996, contains a comprehensive bill of rights that includes explicit recognition and concrete descriptions of a number of economic and social rights. In 1998, Mrs Irene Grootboom lived with her family and her sister’s family in a shack about 20 metres square in Wallacedene, an informal settlement without water, electricity, sewage or rubbish collection services. Most of the residents had been on the waiting list for subsidised housing for years. Mrs Grootboom and a few hundred others decided to take matters into their own hands and occupied a vacant farm that was privately owned and had been earmarked for low-cost housing. They were evicted through a court order, their new-built homes were bulldozed and their possessions burnt. When a High Court judgment initially granted them government shelter, the government appealed to the Constitutional Court. The Court had to interpret article 26 of the new South African Constitution (Republic of South Africa 1996), which provides that (a) ‘everyone has the right to have access to adequate housing’; (b) ‘the state must take reasonable legislative and other measures (such as policy and programmes) to achieve the progressive realisation of this right’; and (c) ‘within its available resources’. The Court decided to test whether the Cape Metropolitan Council’s housing programme was ‘reasonable’. It found that, while the long-term policies were laudable, because there was ‘no express provision to facilitate access to temporary relief for people with no access to land, no roof over their heads, for people living in intolerable conditions and crisis situations’, the programme was not reasonable and therefore unconstitutional (Thipanyane n.d.).
The Grootboom case was hailed by human rights lawyers all over the world. It gave life to the far-reaching provisions in the South African Constitution and demonstrated that a judicial court could review and enforce even the ‘obligation to fulfil’ economic and social rights, by using a standard of ‘reasonableness’ that is familiar to many legal systems (Pieterse 2004). Yet it also raises questions about how much lawsuits can actually achieve. After the case the state purchased the squatted farm and some surrounding land to develop low-cost housing for the Grootboom group and others. But the only amenity on the site now named ‘Grootboom’, where several thousand people live, is a foul-smelling sanitary block with about 12 toilets and some showers and washbasins, most of which are blocked (Schoonakker 2004; Whittal et al. 2004). Box 3.3, which describes the story of the Pom Mahakan community in Bangkok, demonstrates a very different form of community activism and negotiation to prevent eviction.
In India, the Supreme Court has long since established that the right to life protected by the Constitution incorporates aspects of the rights to food and health. There is also a long-established system of public distribution of food to the needy in India. But a 2001 petition to the Supreme Court revealed just how badly this system was functioning. The petition revealed that, 20 years after Sen’s Poverty and Famines, there was still widespread hunger in the country, especially in the drought-affected areas of Rajasthan and Orissa, while more than 50 million tonnes of food grain were lying idle on the premises of the Food Corporation of India. Both the identification of families living below the poverty line and the actual distribution at village level were so erratic and unreliable that less than five rupees worth of food per person per month was being distributed.
The Court confirmed the coexistence of surplus stocks with deaths from starvation, and issued an interim order directing the states included in the petition to implement eight different schemes for food security. Since then, the case has been extended to both the central government and all the states of India, and the Court has issued a number of other interim orders to improve both the identification of the beneficiaries and the implementation of food schemes and employment programmes. Village councils have been authorised to conduct social audits of all food and employment schemes implemented in their area. The Court has given binding force to existing famine codes, and directed state governments to cancel the licences of retail ration shop dealers that did not open on time, overcharged, made false entries or engaged in black marketing. Uniquely, the Court also appointed its own commissioners to monitor progress in executing its rulings.
Ecuador, with Colombia and Peru, has been negotiating a bilateral free trade agreement for the Andes countries with the United States since 2004. While draft texts are secret, Ecuadorian civil society groups have been particularly concerned about a clause on intellectual property rights, which could block access to cheap generic drugs. In July 2004, the president tried to smooth the negotiations with a decree on intellectual property that would have the same effect. The Centro de Derechos Economicos y Sociales (CDES), an offshoot of CESR in New York, wrote to the government, citing pronouncements by the UN Committee on the Rights of the Child and the Committee on Economic, Social and Cultural Rights to demonstrate that the decree was contrary to the right to health. Within two weeks, Ecuador’s head negotiator wrote back, agreeing that the draft decree was unconstitutional and in violation of the right to health, endangering access to affordable medicine. The decree was not passed, and Ecuador’s trade team has begun using human rights language in the negotiations, which at the time of writing are ongoing (‘Ecuador’ 2004; CDES URL).
Brick walls: the unconverted
The United States, historically one of the staunchest opponents of economic and social rights, remains one of a handful of states that has not ratified the Covenant, on the basis that ‘these are not rights but aspirations’. Under the Bush Administration, any specific objections to economic and social rights have become rather obscured by its record on civil and political rights, particularly in relation to ‘the war on terror’. But domestically in the United States, economic and social rights are gaining friends and prominence, against relatively little resistance, as they have elsewhere. A new human rights coalition founded in 2003, whose members range from international groups like Amnesty, Human Rights Watch and CESR to major domestic groups like the American Civil Liberties Union, the National Association for the Advancement of Colored People and the American Friends Service Committee, has the advancement of economic and social rights as one of its core principles (Lobe 2003). Grassroots groups such as the Kensington Welfare Rights Union (URL), an organisation of the homeless, and the affiliated University of the Poor (URL), are also using economic and social rights language and making transnational connections.
But the main adversaries of economic and social rights are no longer to be found in state governments. They are the international financial and trade organisations. As seen above, the World Bank is a partial exception, seeking to co-opt rather than oppose rights language along the lines of ‘we’ve always done it’. The International Monetary Fund (IMF) has been more explicit in its hostility. It has stated that ‘IMF was not a signatory to the Covenant … IMF did not specifically take States’ obligations under the Covenant into consideration when negotiating or consulting with them…’ (UN CESCR 1999). Thus, the IMF refuses to take a position on how states are supposed to mediate between their human rights obligations and the obligations imposed on them in respect of loans. Various governments, including those of Argentina and Egypt, have made it clear to the UN Committee on Economic, Social and Cultural Rights that, when negotiating with the IMF, they do not have the power or leeway to resist particular measures in the name of human rights (Dowell-Jones 2004: 80). So far, despite all the protests against the financial institutions in recent years, civil society pressure specifically in relation to its (legal, political or moral) human rights obligations has been fairly minimal. The first legal study of possible human rights obligations of the Bank and Fund was published only in 2001 (Skogly). What little pressure there has been has had no noticeable effect at all.
The record of the World Trade Organisation (WTO) is in many ways similar. The organisation’s powerful Dispute Settlement Mechanism is obliged to take any treaty obligations between disputing states into account, but has not so far applied this provision in relation to human rights treaties. Nor has it allowed non-state actors to submit materials. Economic and social rights activists do not have a common position on how trade should relate to these rights. While some would like to see the WTO take human rights obligations on board (Howse and Mutua 2000), others treat the idea of a ‘merger and acquisition’ (Alston 2002) of human rights by trade lawyers with suspicion, for the same reasons that Uvin treats the co-option of rights by the World Bank with scepticism. For the time being, they need not worry. The official stance of WTO has not shifted. Nonetheless, an important concession to what can only be described as a regard for the right to health has been made, as the result of massive civil society pressure, at the WTO negotiations in Doha: developing countries are allowed ‘flexibility’ in importing and exporting generic drugs when they can demonstrate that a national health crisis requires it (WTO 2003).
The private sector cannot actually be described as ‘hostile’ to economic and social rights: by and large, it has simply not been asked to take a position yet. Mainstream human rights organisations have begun work on the human rights obligations of corporate entities only recently, and have generally done so cautiously, striking a more cooperative note than in their relations with governments because of the much weaker legal basis for these obligations. Of course, for decades there have been civil society initiatives characterised by their aggressive attitude towards corporations, but, as will be discussed below, they have generally not used human rights language, let alone economic and social rights language. Yet the private sector can become implicated in economic and social rights issues in many ways: through use of child labour in factories or, conversely, through sponsoring community education or health centres not directly related to its for-profit activities, but, most importantly, through its growing role in service-provision (Malby 2002). For most of the twentieth century, states were the primary providers of services such as health and education. This meant that they had a double accountability in relation to these services: a legal accountability to respect, protect and fulfil economic and social rights under international and occasionally also national law, and a rather stronger political accountability to the citizens benefiting (or not) from these services. When health, education, electricity, water or sanitation services are contracted out to the private sector, the state remains legally responsible for the rights of the citizens, but the company is most directly involved, and may be more powerful. Its first accountability is to its shareholders. Both its legal and its political accountability to service-users (or non-users, that is, those excluded by price, for instance) are much weaker, more controversial and harder to enforce than those of the state. Focusing on the obligations of corporations will be one of the greatest challenges for the economic and social rights movements in the near future.
The early social justice movement
The anti-globalisation or anti-capitalist movement, now definitively rebranded as the global social justice movement, famously burst on the scene at the World Trade Organisation meeting in Seattle in 1999. As discussed in many places, it had roots in anti-imperialist thinking and specific struggles in the South such as the Zapatista uprising and the Ogoni movement, as well as in environmental and labour rights movements in the North. While the mix of groups and intellectual traditions was rich, human rights activism was remarkably absent from it. For instance, neither the anti-Bank coalition 50 Years is Enough nor the loose anti-corporate and anti-WTO network Peoples Global Action had any participation from human rights groups, or, for that matter, from specialised economic and social rights groups (50 Years is Enough URL; Peoples’ Global Action URL).
The absence may be explained by a combination of suspicion and moving in parallel circuits, simply not knowing each other. Although the human rights community and the social justice community did not neatly correspond to the older political labels ‘liberal’ and ‘socialist’ respectively, each had a tendency, informed by the Cold War and the period immediately afterwards, to understand each other according to these labels.
The suspicion towards human rights and human rights advocates in particular can be understood in the light of the appropriation of human rights rhetoric by the ‘victors’ of the Cold War. The fall of the Berlin Wall was widely presented as a triumph for market capitalism and ‘liberal values’, that is, civil and political rights, simultaneously. The Clinton Administration was the most human rights-friendly US government in two decades, and the World Bank too embraced its own version of human rights in the post-Washington consensus, conflating neo-liberal orthodoxy with respect for human rights in statements like: ‘by helping to fight corruption, improve transparency, and accountability in governance, strengthen judicial systems, and modernize financial sectors, the Bank contributes to building environments in which people are better able to pursue a broader range of human rights’ (World Bank 1999: 3). The human rights movement did little to dispel the notion that human rights and free market reforms were two sides of the same coin. This was not because it necessarily endorsed this notion, although some individuals and groups probably did and still do, but rather because it was in some ideological disarray. It would condemn state violence used against Ogoni or Zapatista leaders, for instance, but it would not comment in any way on their political struggle.
Its traditional insistence that human rights were above politics, so useful during the cold war, was getting in the way of gaining a political voice. Enemies in the form of traditional dictatorships, left and right, were fast disappearing from the scene, whilst human rights values were being embraced by controversial new friends. New demands were being made on the human rights mandate: to take up abuses by armed groups, by corporate actors, by men upon women in the private sphere, as well as to embrace economic and social rights. The human rights movement is still sorting its way through this expanded agenda. Moreover, human rights organisations had become very professionalized and legally oriented. The activists forming a human chain around the centre of Birmingham to protest against Third World debt in May 1998 and the lobbyists pushing to establish an international criminal court at a UN conference in Rome a month later, for instance, had little or nothing in common in terms of tactics or networks.
Arguably, the specialised economic and social rights groups such as FIAN, COHRE or CESR would have made much more natural allies for the anti-capitalist movement. Their world view was much closer to that of the protestors, they had grassroots links as well as experience of international fora such as the UN, and they had a language at their disposal that might have appealed to the anti-capitalist movement, which was at the time justly accused of knowing much better what it was against than what it was for. But the fact is these groups were not there at the beginning. Only in the early twenty-first century did social justice groups begin to forge links with economic and social rights groups as well as mainstream human rights organisations.
Three different workshops at the 2005 WSF in Porto Alegre, all attended by the author, illustrate this mixed record of convergence. Just prior to the forum, a thematic World Social Forum on Health took place, attended by 800 people, which adopted the ‘right to health’ as its lead theme (World Social Forum on Health URL). A follow-up session to this during the WSF, entitled ‘Right to Health: Neoliberalism or Social Movement’, saw participants from Argentina, India, Colombia and Burundi describing the consequences of privatisation, austerity measures and military conflict for the right to health in their respective countries, and describing the social movement action being undertaken against this. Other participants from Argentina and Mexico stressed the need to give medical students a more ‘people-oriented education’ and to protect the use of alternative medicine by indigenous groups from state repression and corporate interests. The principal terms in the discourse of this workshop were ‘neoliberalism’ and ‘struggle’. Participants used their own, self-defined concept of the right to health, and no reference was made to the Covenant or to any national lawsuits or legal provisions concerning the right to health.
The next day, another workshop on economic and social rights took place in the human rights space, entitled ‘Economic, social and cultural rights in the international system: shadow reports to the ESC Rights Committee and the challenges of the Working Group on the Optional Protocol’. Apart from the author of this chapter and one Belgian development worker, there was no overlap between participants in this workshop (which included the French member of the UN Committee on Economic, Social and Cultural Rights, as well as other primarily Latin-American and European lawyers) and the previous workshop. As the title would suggest, the discussion focused on sharing experiences regarding the practice of submitting civil society reports, parallel to the state reports, to the UN Committee, and on the negotiations on the Optional Protocol. Key terms in the discourse of this workshop were ‘justiciability’, ‘strategising’, and ‘lobbying’. The phrases ‘neoliberalism’ and ‘struggle’ were not used.
At a workshop on the right to housing, however, the dynamics were rather different. Here, participants ranged from a Geneva-based international lawyer who described the existing international provisions and legal avenues regarding the right to housing, national-level activists from Egypt and Brazil who described a variety of tactics (from legal appeals or political negotiations to direct action and use of the media) to a Brazilian from Sao Paolo who had recently become the victim of slum clearance, and had come to the Forum looking for help. An instant petition was drafted, and further discussions held about how to address the situation of his community.
While social forum sessions have all the advantages and drawbacks of embedding economic and social rights activism in a much wider movement, a specific network on economic and social rights has also recently been founded. The International Network for Economic, Social and Cultural Rights (ESCR-Net) was officially inaugurated in June 2003, after years of deliberation, with a founding conference attended by 250 activists from over 50 countries. ESCR-Net is primarily a facilitating platform rather than a campaigning coalition (ESCR-Net URL).
During the long gestation period of the network, members were already going ahead with joint activities, setting up a case law database and various listservs, lobbying jointly for the Optional Protocol, and drafting principles on women’s economic and social rights. Since then, working groups on corporate accountability and on how to involve and connect grassroots groups and movements have been added, as well as smaller initiatives on budget analysis and export credit agencies (see below), and various discussion groups. These activities are essentially self-managed by different groupings of members, backed by a tiny secretariat in New York.
Both individuals and NGOs can join ESCR-Net. Members include a wide variety of organisations including usual suspects such as FIAN and COHRE, traditional human rights organisations, a social justice think tank like Focus on the Global South, sections of Amnesty International and ActionAid, and much more radical grassroots groups like the Movimento Sem Terra from Brazil or the Kensington Welfare Rights Union from the United States. Minutes of the inaugural meeting show the latter type of groups to be particularly interested in learning how to use international law to their advantage, while human rights lawyers emphasised that a human rights culture with popular support needed to be built.
At the new forums where previously unconnected actors meet over economic and social rights, new synergies are being discovered. One of the biggest growth areas of the economic and social rights movement has been the right to health. Its cause célèbre has been the success of the South African Treatment Action Campaign, first in persuading the South African Supreme Court that the right to health required national roll-out of a particular anti-retroviral (ARV) drug, and then, in coalition with international NGOs, in persuading the WTO that there needed to be an exemption to the TRIPS agreement that would allow the manufacture and distribution of cheap versions of ARV drugs to combat HIV/AIDS in developing countries. But health rights activists have also achieved many other successes, primarily but not exclusively related to HIV/AIDS treatment, in Thailand, Brazil and other countries (Seckinelgin 2002: 123–5). Patients (especially People Living With HIV/AIDS), health professionals, human rights lawyers, development organisations and anti-privatisation activists are all part of this growing movement. Where only ten years ago the right to health was generally met with the sceptical comment that one cannot claim a right to be healthy, now a right to ‘the highest attainable standard of health’ is widely accepted in both medical and development circles.
Another momentous area of synergy is over the right to water. This right was initially formulated largely outside the human rights movement. It has caught the attention of development organisations, particularly of Care International. But it also has connections with anti-dam campaigns, with political conflicts such as that between Palestine and Israel, and with anti-privatisation campaigns, the most famous case being that of Bechtel in Bolivia (see Chapter 5 in this Yearbook). Like food, water is so vital to human life that to claim it as a right has intuitive appeal. But until recently it had no explicit basis in international law. Gradually, it has been embraced by the human rights community as being constituted by particular aspects of the existing rights to food and health, culminating in the adoption of a ‘General Comment’ on the right to water by the UN Committee on Economic, Social and Cultural Rights in November 2002 (UN CESCR 2002; Filmer-Wilson 2005; Nelson and Dorsey 2003).
A recent trend in global civil society has been the growth of budget analysis, which aims generally to make government conduct more transparent and accountable. It is particularly relevant to economic and social rights because the Covenant and other legal texts oblige states to take steps to fulfil these rights ‘to the maximum of their available resources’. Where that maximum lies in a particular context is of course contested, but budget analysis can be a powerful political tool demonstrating a government’s commitment to a particular right, or lack thereof. An analysis of the Mexican budget over four years from the point of view of the right to health found that resource allocation for the control and prevention of disease was declining; a disproportionate share of the health budget went to those employed in the formal sector, and more ‘pro-poor’ spending of the federal budget went to the better-off rather than the poorest states. This pioneering project was published in book form in 2004 (Centro de Analisis e Investigacion et al. 2004). A handful of other such projects are under way, and in March 2005 Dignity International organised a first ‘linking and learning’ programme for human rights activists and budget analysis groups (ESCR-Net URL). Rights-based budget analysis is bound to be further refined and become a more widely used tool in coming years.
Less developed than budget analysis is the use of economic and social rights indicators. Traditionally, human rights activists have often been wary of quantifying human rights abuses, voicing doubts over both the availability of accurate data and their validity. But in the area of economic and social rights developing ‘indicators’ has its attractions. First, as many aspects of economic and social rights are to be ‘progressively realised’, indicators are needed to establish whether there is progress. Moreover, development indicators that at least have a bearing on economic and social rights already exist, for instance on nutrition, literacy, enrolment in schools, and many aspects of health. But these existing indicators have several drawbacks from a rights-based perspective. First, they may measure the enjoyment of rights; but, if they indicate lack of enjoyment, they do not pinpoint blame. Statistical indicators do not discriminate well between political will and the capacity to fulfil rights. Hence, human rights activists argue that, next to enjoyment indicators, compliance indicators would have to be developed for states and other actors. They might have to be supplemented with more qualitative indicators on legislation and policy. Second, statistical indicators give averages: they cannot tell us whether the rights of each individual are respected (Green 2001).
Despite these unresolved questions, some organisations are beginning to do work on indicators of economic and social rights, figuring out along the way which existing indicators they can borrow from related fields, and which they will need to develop themselves. The Philippine Human Rights Information Centre, for instance, has been testing the usability of grassroots-based indicators on economic and social rights at the national level, while Physicians for Human Rights is globally pioneering the use of health-related indicators for the right to health (Yamin 2005; Philrights URL).
Finally, economic and social rights actors are only just beginning to look at extra-territorial and non-state obligations. This is a vast area, and largely unexplored terrain from both an academic and an activist perspective. One of the most interesting recent initiatives in this respect, at the borderline between inter-state and private accountability, is that on export credit agencies. Export credit agencies (ECAs) are a particularly untransparent instrument of rich countries to stimulate private sector exports or make overseas investments through the use of loans, guarantees, and insurance. Some progress has already been made pushing ECAs to institute minimum environmental standards. A workshop in September 2005, coordinated by ESCR-Net, aimed to explore the possibilities for economic and social rights activists to begin applying the same sort of pressure, bringing together human rights experts, ECA-watchers and local activists affected by controversial ECA-funded projects (ESCR-Net URL).
Through the categorisation of obligations, the identification of a minimum core content, and the violations approach, the nature of the obligations exacted by economic and social rights had become much more clear by the end of the 1990s than they had been even ten years earlier. Since then, new networks, synergies and methodologies have emerged that begin to enable global civil society to push for implementation. Nonetheless, some complex questions remain that cannot be resolved simply by calling either for more legal-academic clarification or for more political activism. They require urgent answers from global civil society actors if they are to make any progress in exacting universal enjoyment of economic and social rights.
Rights as instruments of struggle or instruments of law
As argued in the introduction, rights can be interpreted as legal guarantees or as moral claims. Their power lies precisely in the fact that, much of the time, they are both simultaneously. But, as more actors enter the economic and social rights arena, there is a divergence of views on what exactly a rights frame entails. Human rights lawyers typically base their rights claims on international law, whilst social justice activists typically take a self-defined right, based on collectively identified primary needs, as their point of departure. So far, this distinction has often remained unspoken. Human rights lawyers have been keen to bring grassroots groups the message that they have legally defined rights, but usually prefer not to emphasise that these rights may be rather more limited than the affected communities envisage.
It is questionable whether the dominant civil society practice to date, of fudging the distinction between legal rights and moral-political claims, is sustainable. Some bottom-up rights coincide with those in international law and others, such as the ‘right to water’, are relatively easy to reconcile with it. But others, such as the ‘right to the city’, the latest claim to emerge from social forums, will stretch the tolerance and imaginativeness of lawyers.
In the area of the right to food, FIAN has made the distinction explicit, clarifying why it insists on using the ‘right to food’ as its framing rather than the broader concept of ‘right to food sovereignty’ championed by Via Campesina, the worldwide coalition of small peasants’ organisations. ‘The political expansion of the rights-based language contains the risks for those rights, which are already legally binding, of being seen more as political demands’ (Windfuhr and Jonsen 2005). This difference of opinion has not prevented FIAN and Via Campesina from being joint leading partners in a global campaign for agrarian reform.
If such distinctions are not more openly discussed and negotiated, cracks are bound to appear in the brand-new coalitions now sprouting up, and some of the old suspicions, particularly between human rights lawyers and social justice activists, that the other party are capitalist lap-dogs or socialist revolutionaries respectively, may re-emerge.
Hierarchy of rights and political choices
Economic and social rights are being embraced not only by grassroots activists and lawyers but increasingly by judges. Local, national and international courts have become much more inclined to find a legal basis not only for upholding economic and social rights but also for upholding their own competence to judge whether there has been a violation. Protection of citizens’ rights through law courts is a mechanism deeply rooted in different legal systems, going back to Enlightenment thinking and even earlier practice. But the doctrine of ‘checks and balances’ which accounts for the competence of courts to judge state laws and policies against a set of rights, and if necessary overturn them, was premised on the notion of an over-zealous state interfering in the lives of its citizens. It did not have an underperforming or neglectful state in mind.
Starting with Henry Shue’s seminal work, political theory has moved on from the notion that civil and political rights confer only negative obligations, to leave citizens alone, while economic and social rights confer only positive obligations to provide. Even in the most classic libertarian tradition, the state would have obligations to protect property from threats by third parties, and to put systems in place to enable some political participation. Hence, courts are also universally considered competent to adjudicate on such issues – for instance on the recounts in the 2000 US presidential election.
Nonetheless, economic and social rights raise much more trenchantly the issue of how far judges can go in not just proscribing but prescribing specific policies. The right to food case in India, described above, is a case in point. The Supreme Court has become very hands-on in telling the provincial states how to manage food distribution. In 1998, the Argentinian Supreme Court handed down a similarly prescriptive decision, ruling that the government was under an obligation to roll out a vaccine programme. This particular decision was based on earlier stated policy, but, in general, should a court be able to decide that a vaccine programme is a necessary component of the right to health? In the case of the right to education one could go even further. Many economic and social rights lawyers would argue on the basis of the principle of ‘non-retrogression’ that, if secondary or tertiary education has once been free, introduction of fees becomes a human rights violation. A judiciary panel could go along with such a decision and forbid reintroduction or raising of fees. If so, what space does that leave for democratic debate and political choice on educational policy? A government endeavouring to honour all human rights obligations would have very little democratic manoeuvring space left. Should the electorate not have any say in how to implement the right?
In order to answer these questions, it may be necessary to re-examine the idea of a hierarchy of human rights, or, more accurately, a hierarchy of aspects of rights. Human rights lawyers, traumatised by the competing rights ideologies put forward in the cold war, have generally shied away from the idea that some rights might be more imperative than others. They have hidden behind the formula that all human rights are universal, indivisible and interdependent and interrelated, and posited that each of them overrides the normal cut-and-thrust of political decision-making.
Yet it is intuitive, on the basis of needs, that not all rights, or more accurately not all aspects of rights, are equally vital. Paid holidays are not as essential as food. The reluctance to barter with human rights, and particularly with economic and social rights, has laid human rights activists open to the charge of being maximalist and unrealistic, writing ‘letters to Santa Claus’ (Orwin and Pangle 1984: 15). Yet in practice choices are made. It is not accidental that most global civil society activity in the area of economic and social rights began with the right to food. The ‘minimum core content’ idea is another concession to the idea of hierarchy, but there has been little discussion of what might be legitimate forms of hierarchy or prioritisation for more developed states, and whether their margin of political choice widens accordingly.
This might be a task not just for lawyers, but also for moral and political philosophers. One of the most controversial questions to answer in this respect would be whether hierarchy must be established solely on the basis of need, or whether questions of cost can also play a role. It is no longer disputed that the world does, in principle, have not only sufficient food stocks but also sufficient resources to deal with allocation and distribution, so that no-one should go hungry. Where people go hungry nonetheless, there is no need for philosophical speculation or economic calculation, only for political activism. But it becomes more difficult when it comes to housing, health and education. The right to health may be a particularly good test case, as aspects of it do deal in life and death, but fulfilment can be much more costly than fulfilment of the right to food.
According to the Covenant, states are obliged to ‘progressively realise’ economic and social rights, ‘individually and through international assistance’, ‘to the maximum of their available resources’ (ICESCR, 1966). This is at the heart of the Roth–Rubenstein controversy, described in Box 3.4. Roth argues from the assumption that, at least at state and possibly at inter-state level, there are not enough resources. Therefore, human rights advocates should stay away from resource issues, because their recommendations would interfere with other legitimate forms of spending (Roth 2004a: 65). Rubenstein on the other hand claims that ‘the amounts needed are high but within reach’ (Rubenstein 2004a: 856). Neither really has a sufficient empirical basis for his claim. It certainly seems clear that, in the realm of international assistance, states are not spending to the maximum of their available resources, but to what extent are they doing so at the national level? The Supreme Court of South Africa, one of the richer states on the continent, has rejected the doctrine of minimum core content on the – again arbitrary – judgment that South Africa is not at this point financially able to fulfil even these minimum demands. The doctrine of ‘progressive realisation’ is equally problematic. The ‘non-retrogression principle’, described above, is based on a developmentalist assumption that all states are gradually becoming better off. How is this to apply to a country like Argentina after the financial crisis, or to the Democratic Republic of Congo after a decade of war?
At the same time, the questions that are being asked about the cost of economic and social rights were never asked about civil and political rights. In fact, we have no idea how to cost human rights in general, as may be illustrated through the example of the right to form trade unions and engage in collective bargaining, a hybrid between a civil and an economic right. It is generally considered as a ‘negative right’, without cost implications. But, as Dowell-Jones (2004: 48) argues, while this right may carry no direct cost for the state, it may drive up wages and therefore carry a cost for employers and the national economy. On the other hand, the same collective bargaining freedoms may also prevent wildcat strikes and smooth cooperation between employers and employees, improving the predictability and output of productive processes in a country. There is no definitive answer to the question whether the right to form trade unions should be considered cost-neutral, costly or profitable to the state.
So what approach should economic and social rights advocates take to the resource issue? One approach would be to emphasise the hidden benefits of policies that respect, protect and fulfil human rights, arguing that they lead to a virtuous cycle of social wellbeing and financial stability for all. Such reasoning would be contestable to say the least. Another approach is to take the moral high ground and argue that human rights must be fulfilled regardless of the cost, as has always been the approach to civil and political rights. A third, more pragmatic approach is taken by those who engage in budget analysis. In analogy with the violations approach, they begin by trying to establish not the maximum available resources of a state, but which budget allocations are most blatantly not using maximum available resources, that is, diverting money to less legitimate causes. From there it may be possible over time to close in on the ‘difficult cases’.
Extraterritorial and non-state obligations
There is general consensus that, whatever the ‘maximum available resources’ of developing countries might be, they are insufficient to fully realise economic and social rights. Therefore, these rights can only ever be fulfilled if it is accepted that the obligations emanating from economic and social rights go beyond the state of citizenship or residence.
The idea that obligations – moral, political or legal – fall on more than one actor is not in itself problematic. Obligations are not a zero-sum game. The fact that a school might undertake part of a child’s social and moral education, for instance, does not absolve parents from the same task. Moral philosophy is quite at ease with the idea of concurrent obligations. Domestic legal systems, too, are entirely comfortable with the idea of concurrent obligations. When a teacher sexually molests a child, besides his own criminal liability the school or its board may be liable for not having checked whether he was a known sex offender, and the authorities might be liable for not having shared appropriate information with the school. Such multiple liabilities are the bread and butter of domestic litigation.
Therefore, there are neither philosophical nor legal objections to the idea of human rights obligations, including economic and social rights obligations, falling on actors other than the state. But there are huge political and practical obstacles. As Kuenneman says, ‘obligations are trapped between the nation state and the international community … The result is a situation where the maximum of available resources is neither reached internationally nor nationally, with a convenient excuse the blame the other side’ (quoted in Hennessey 2002: 87–8). The Covenant insists that states have an obligation to realise economic and social rights beyond their borders ‘through international assistance and cooperation’, but the extent and nature of such obligations remain obscure. Development assistance allocations suggest that rich states do recognise some kind of responsibility to help meet global social needs, but this may be conceived as a moral requirement or political expediency rather than a legal obligation, and the sums are paltry in comparison both with rich country GDPs and with poor country needs.
It is too easy to blame this solely on ill will on the part of rich states. The duty to ‘to take steps … especially economic and technical’ has been enshrined in the Covenant for 30 years, but economic and social rights advocates have done little if anything to clarify what those steps might be. Economic and social rights activists have been overly focused on the state. They are only now beginning to inquire into the nature of ‘extra-territorial obligations’ on the part of states and of inter-governmental organisations. The obligations of transnational corporations or non-governmental organisations, whether political, moral or legal, are even less elaborated. This is an area where economic and social rights advocates need to catch up quickly if their work is to have any relevance to those deprived of health, housing or education in a globalised and privatised world.
Economic and social rights advocates began as a very small group. Gradually, in the 1990s they overcame the cold war legacies of government manipulation and rhetoric. Surprisingly, convincing major players in global civil society of the economic and social rights frame was as much of a challenge as convincing global institutions. When mainstream human rights and development organisations, governmental and non-governmental, had to some extent begun to adopt the economic and social rights frame, a danger arose that the movement would become too exclusively oriented towards global policy-makers, either very legally oriented or co-opted into development-speak.
But in the last few years the field appears to have been thrown wide open, and new collaborations are being forged between all sorts of global civil society actors, from different regions, levels and fields. The excitement is palpable. There will undoubtedly be friction and misunderstanding between these different actors in coming years, but this will hopefully lead to a more explicit understanding of each other’s points of departure, strengths and weaknesses.
At the same time, the reality is that, in the face of a growing movement for economic and social rights, 850 million people live with chronic hunger, 27 million children are not immunised against preventable diseases, millions suffer forced evictions, and one in five adults in the world is illiterate (FAO 2005; World Health Organisation 2005; COHRE 2003; UIS 2005).
Apart from the old and still largely unfulfilled mandate of pushing economic and social rights onto government agendas through litigation and political actions, the movement now faces the much more complex and controversial challenge of engaging the agendas of global economic actors such as the international financial institutions and corporate entities. It is in this area that global civil society has most catching up to do, from establishing legal norms to exerting political pressure on a host of different actors, and it needs to do so rapidly if it is to have an impact.
The attractions of the economic and social rights frame are firstly the simplicity and moral appeal of the idea that ‘everyone has the right to’ have their most basic needs met, secondly the flexibility that this framework, vesting rights universally in the individual, allows for the identification of a variety of obligation-holders beyond the state, and thirdly the – admittedly rudimentary – international legal basis for such obligations. The greatest contributions to economic and social rights have so far been made by a coalition of legal experts and grassroots activists. They will need to continue to negotiate their differences and define modes of cooperation, as well as solicit new inputs from moral philosophers, political economists and technical experts on food, education, health and housing to deepen as well as widen the meaning of economic and social rights obligations. Driven by a diverse, imaginative and determined set of global civil society actors, the economic and social rights frame could become the instrument of choice for achieving social justice in a globalised and privatised world.
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Websites (consulted 13 March 2006)
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CDES (Centro de Derechos Economicos y Sociales), www.cdes.org.ec
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Social Watch, www.socialwatch.org
University of the Poor, www.universityofthepoor.org
World Social Forum on Health, www.fsms.org.br/ingles
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