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.
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?
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.
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).
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).
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.
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).
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 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.
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.
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.
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).
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).
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.
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 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.
Those who make the case for justifying Israel’s response do so within a discourse of war, in which Hizbollah’s attacks are treated as foreign aggression. In fact, even within the discourse of war, the response can be criticised on grounds of disproportionality, although the Israelis can argue that this is a case of ‘military necessity’; indeed, international lawyers have asserted that the attacks violate the principle of proportionality in international humanitarian law (the ‘laws of war’). But no justification of Israel’s response is possible within the discourse of human rights; such attacks are completely unacceptable by the standards of human rights. And this exposes the shortcomings of the language of war in today’s world: the human rights regime (human rights law underpinned by global norms) is increasingly coming into conflict with the rules that govern what is called ‘war’. In a global era, when the lives of individual human beings are considered to have equal value whatever their nationality or religion, violent actions such as that carried out by Hizbollah should be dealt with through recourse to international law, which addresses individual responsibility for crimes, not by launching a war against a whole population.
Conflict, institutions and globalisation
While wars might be fought in the name of free society, such is their intrusion into rights that, when won, democracy has to struggle to re-emerge in the aftermath. Even so, the struggle can be won, as the settlement after the Second World War showed, involving as it did the greatest advance in human freedom in history, with the establishment of the United Nations and the proclamation of the Universal Declaration of Human Rights, while the development of international institutions has proceeded with no significant check ever since, until perhaps – and we can’t yet be sure – the present time.
However, very few civil society groups grapple with the fundamental human right to move, which is often overlooked in the debate about migration. Yet a section of anti-capitalist and anti-racist civil society is active, vocal and dynamic on the issue. For example, the No border network, No One Is Illegal Group UK, and Abolishing the Borders from Below campaign for freedom of movement, arguing that to move is a human right and that global immigration controls are inherently racist, authoritarian, and therefore unjust. Such groups ignore the distinction between legal workers, undocumented migrants, refugees and asylum seekers, arguing that these are the constructed and meaningless concepts of an unjust capitalist system. Freedom of movement is at the heart of other issues on which these groups campaign, including for housing, women’s emancipation and workers’ rights, and against racism.