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date: 18 January 2018

Economic, Social, and Cultural Rights

Summary and Keywords

Economic, social, and cultural rights (ESCRs) emerged in the twentieth century as the set of “second-generation” rights after civil and political rights (CPRs). ESCRs represent the “equality” phase of human rights after the “liberty” aspect of CPRs. Despite having achieved legal respect and parity with all other CPRs, ESCRs are often perceived as having less legal clarity and required compliance in practice. ESCRs, however, have a substantial doctrine for many rights of progressive development or realization. In addition to progressive development of all the rights in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), the Economic, Social and Cultural Rights Committee, which explains and monitors that treaty, has established a set of core obligations of states. Despite the problems inherent in the process of monitoring ESCRs, there are three major institutions which review the state of ESCRs in the world today: the United Nations (UN), states parties, and non-governmental organizations (NGOs). Additionally, the general direction of the literature on ESCRs is geared towards implementation and promotion of these rights. However, there is a tendency to examine ESCR violations that have a link to CPRs or to UN peace projects. There have also been various initiatives affecting second- and especially third-generation rights, such as the protection of indigenous peoples.

Keywords: ESCRs, second-generation rights, third-generation rights, ICESCR, monitoring ESCRs, equality, rights development, ESCR violations

Introduction

Economic, social, and cultural rights (ESCRs) are human rights regulating markets, workplaces, social protection, family life, cultural participation, and access to food, housing, water, health care, and education (Türk 1990; Spirer and Spirer 1993; Eide 2001; Office of the High Commissioner for Human Rights 2008). This essay will focus on the historical development of these rights, and this will be followed by a review of the positive law obligations of United Nations (UN) institutions, UN member states, and states party to specific treaties. Then, we will consider the challenges of nongovernmental organizations (NGOs) monitoring the UN, as well as state promotion and protection of ESCRs. The concluding section considers some of the dilemmas of implementing these relatively controversial rights and measures that have shown some measure of success in their protection and monitoring.

Historical Background

Unlike “first generation” civil and political rights, representing “liberty” and gaining broad acceptance in the nineteenth century, the “second generation” economic, social, and cultural rights, representing “equality” (Vasak 1977; Marks 1981) emerged in the twentieth century. Despite having achieved legal respect and parity with all other civil and political rights, ESCRs are often perceived, particularly in the West, as having less legal clarity and required compliance in practice. The main sources for the contention that ESCRs are not legally binding at all have been the consistent US government position in international legal fora, along with a minority of scholars, who take a skeptical position toward international law generally, except when there is a consensus among states that a law is binding and by implications serves US national interests. They argue that human rights treaties generally either have had no significant impact on treaties and do not bind states that do not ratify them (Goldsmith and Posner 2005) or on natural law grounds that one group of states cannot formulate laws that bind other states (Rubin 2007).

The most common textual reference and legal source for these rights is the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR). Another crucial legal source addition, customary international law, derived from the 1948 Universal Declaration of Human Rights (UDHR), which unified civil and political rights with ESCRs and which has evolved to become legally binding, identifies many of these same rights, as well as civil and political rights (CPRs). Some of the same debates over the extent of universality, cultural relativity, and margins of appreciation, generated by the left, and the extent to which these rights are binding and enforced, as suggested by realists, which apply to the other two main human rights categories, civil and political rights, also apply to ESCRs.

Other important treaty sources of ESCRs include the International Convention on the Elimination of all Forms of Racial Discrimination (1965), the Convention on the Elimination of all Forms of Discrimination against Women (CEDAW, 1979), the Convention on the Rights of the Child (CRC, 1989), the Convention on Migrant Workers (1990), and the Convention on the Disabled (2006). There are also important regional conventions for Europe, the Americas, and Africa. Among them are the European Social Charter (1961) and the Revised European Social Charter (1996); the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights (1988); and the African Charter on the Rights and Welfare of the Child (1990) and the Protocol to the African Charter on the Rights of Women in Africa (2003). All of these treaties, as with the UDHR and the ICESCR, mandate that state party governments provide the appropriate government support public goods and services to realize these “positive rights,” as well as restraints to “negative rights” that might harm people. For example, the Council of Europe’s Framework Convention for the Protection of National Minorities sets ESCR standards for regions in which various minority groups reside together.

FDR spoke of “freedom from want” as one of his famous four freedoms, identified in his January 6, 1941 State of the Union address, which he defined as necessary for “a healthy peacetime life.” Beginning in 1945, the United Nations has been the central player and setting for advocating the rights of the world’s most needy. Yet, the effort to establish rights, or “trumps” to use the term of Ronald Dworkin (1984), that would guarantee protections has been lacking in practice, despite many institutional innovations. Even as documentation of rights abuses of all types has never been greater, the number of violations continues to grow, although the majority appear to go undocumented, as states also become even more politically adept at countering “norm cascades” with “violation cascades.” In terms of basic human needs, despite the treaty-based claims of a rights-based framework with which to analyze human misery, the hegemony of perceptions that poverty, malnutrition, poor health and insufficient education, among them, are inevitable and/or elements of personal responsibility and not of states or societies, remains intact. Basic rights of survival appear to be a goal or a luxury, not a claim, let alone an expectation of existence, as about one-third of the planet’s humans live in poverty or misery.

In the pursuit of human rights, most states do not follow the norm of equal and interdependent rights, balancing among them equally. Most pursue either economic, political, or civil first, because it is impractical to try to do too much too quickly, without losing stability, freedom or effectiveness. By ideology, the West chose civil rights, and the East economic rights. However, because of colonialism, the South had political rights first, often not by choice. Similarly, in constitutional law, academics generally argue that balancing equal protection values, such as non-discrimination versus discrimination, often is impractical and requires a choice among the values.

The 1993 Vienna World Conference on Human Rights asserted as binding, customary international law that all types of human rights, both ESCRS and CPRs, are equal and mutually interdependent. Previously, the first World Human Rights Conference in 1968 in Teheran marked the start of UN discussion of the interconnection of all types of human rights. “This was the time when there began to be a very close nexus between human rights on the civil and political side and human rights on the economic and social side in UN proceedings. The Right to Development and the New Economic Order […] basically spring from that 1968 conference” (Abram 1978:15).

Regarding the debate over whether ESCRs are binding and enforced, Goldsmith and Posner, Rubin, and other skeptics find that ESCRs, whether derived from treaties or customary international law, are generally not legally binding and certainly not enforced. Unlike those who insist that a sense of legal obligation found in the ratification of treaties suffices, they argue that state practice, in addition to opinio juris, the sense of legal obligation of states, is required to make a norm found in either treaty or custom legally binding and enforceable. Since ESCRs have never been accepted universally, they reject custom as a source for these rights because the USA and other states have been persistent and consistent objectors. They reject the claim that the Universal Declaration of Human Rights has achieved legally binding status under customary international law, with the required sense of legal obligation and consistent state practice in the world. At most, only those states that have ratified the ICESCR would be bound by its rather weak norms and enforcement provisions. Goldsmith and Posner find that the treaty imposes reporting requirements, but not legally enforceable norms as such.

The orthodox scholarly view is that the 1948 UDHR has achieved legally binding status on all states, including its provisions on ESCRs. Given the legally binding requirement to promote and protect human rights in the 1945 UN Charter, the argument is that this General Assembly recommendation, three years later, was intended to specify the legal content of the Charter’s legally binding requirements. In particular, Article 55(c) established a general requirement for “observance of human rights,” while 56 required UN member states to take “joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.” According to this view, UN member states have effectively accepted obligations in the UDHR (Judge Tanaka’s Dissent in South West African cases, 1966).

An immediate set of actions were undertaken under Article 56 authority. In 1946 the General Assembly commissioned the UN Human Rights Commission to prepare an “International Bill of Rights” to establish “a comprehensive system for the promotion and protection of human rights” (van Boven 1982) That Bill of Rights began with the Universal Declaration of Human Rights in 1948 and was followed in 1966 by the two main human rights treaties, the ICESCRs and the International Covenant on Civil and Political Rights (ICCPR). The Universal Declaration established the content of the Charter’s legal mandate and subsequent action to formulate a Bill of Rights as the first step in establishing “standards of achievement” to be implemented through “successive measures.”

Scholarly commentators suggest that enough time has transpired to make those measures enforceable, as subsequent, legally binding instruments referred to the Universal Declaration as a source of law (Vasak 1977). They regard voting for resolutions at United Nations and other international gatherings, as well as the invocation of the UDHR or its clauses by UN institutions and over 25 member state constitutions and laws, indicates not just a sense of legal obligation, but also effective state action. This would satisfy the requirements of customary international law. Some go even further to argue that it has achieved the status of jus cogens, a peremptory norm that is binding, whether or not the source exists in either custom or treaty.

Others argue that the UDHR was not only not intended to be binding, it could never independently be binding under customary international law since treaties have been promulgated with that specific purpose. In addition, ESCRs were included in a separate treaty for differential treatment because many states regarded the obligations as inherently different, which has led a sizeable minority of states to decide to date not to ratify the ICESCRs (Lauterpacht 1950:394). Critics respond that states have specifically denied that they are bound by the Universal Declaration. Furthermore, declarations that it has become customary international law, such as in the Final Declarations of the 1968 World Summit on Human Rights at Teheran and the 1993 World Summit on Human Rights at Vienna, are also not binding as customary international law because states support consensus statements at meetings without any real sense of being bound legally. Furthermore, states that have not ratified the treaties over these substantive matters have shown their intentions not to have any imputed sense of legal obligation. Finally, the International Court of Justice has ruled, in a non-binding but influential opinion, that the UDHR does not mandate all its rules as universally binding in particular circumstances (Barcelona Light and Power Company, Ltd. (Belgium v. Spain) 1970).

The 1948 UDHR provided the first comprehensive identification of ESCRs beyond classic liberal freedoms, including the banning of slavery (Article 4), and the rights to own property (17), to social security and those ESCRs necessary to human dignity (22), to work with equal pay and favorable conditions (23), to rest and leisure (24), to an adequate standard of living (25), to education (26), and to cultural life (27). Yet, scholarly and concrete action has been slow in coming. In 1967, the year that both International Covenants were approved by the UN General Assembly, one of the most important books of essays by experts on human rights hardly mentioned the topic of what came to be named the second and third generation of human rights (Luard 1967). Yet, even then, the importance of NGOs to the promotion of human rights generally was recognized. As Peter Archer noted, “Whether they speak directly, or by persuading a well-disposed government or its representatives to present their case, the international recognition and protection of human rights, such as it is, is in large measure the success of unofficial organizations” (Archer 1967:181).

Among the important rights within ESCRs, the most attention has been paid to economic rights and the associated issues of basic human needs and the right to development, which are not found explicitly in the treaties, but have been elaborated as soft law norms at the UN in the past few decades. The economic rights specifically named include the right to property (UDHR, Article 17); the right to work (UDHR, Article 23; ICESCR, Article 6); and the right to social security (UDHR, Articles 22, 25; ICESCR, Article 9; CRC, Article 26). Cultural rights, particularly in the context of ethnic group rights to autonomy, federalism, and self-determination (ICCPR, Article 27; CRC, Article 30), are also very visible, and equally controversial politically (UNHR, Article 27; ICESCR, Article 15). Social rights would include the right to an adequate standard of living (UDHR, Article 25; ICESCR, Article 11; CRC, Article 27); the right of families to assistance (ICESCR, Article 10; CRC, Article 10); and the right to education (UDHR Article 26; ICESCR Articles 13 and 14; CRC, Articles 28 and 29).

Scholars often ignored ESCRs in their research and teaching materials. The leading casebook in law schools for the 1970s, Sohn and Buergenthal’s International Protection of Human Rights, had no treatment of ESCRs, as such. This thousand-page book had only one chapter indirectly related, on the League of Nations and the post-World War II systems of minority protection (Sohn and Buergenthal 1973) However, this changed after the ICESRs came into binding force in 1976, as scholarly attention steadily increased.

The importance of ESCRs has grown in the past six decades, as NGOs, governments, and even domestic judiciaries have responded to the 1993 World Summit by paying more attention to ESCR rights in policies and even case law. Still, the attention paid to the ESCRs lags behind that accorded to CPRs, given insufficient civil society engagement.

Content of ESCRs

Some countries, like the USA, reject any notion of ESCRs. By contrast, most of the post-communist countries, as well as Brazil, protect ESCRs in their constitutions, as well as providing domestic jurisdiction for any ratified human rights treaties. Social rights in Brazil come under Chapter II of its constitution, and include the right to education, health, work, housing, leisure, security, social security, maternal and child protection, and assistance to those in need (Article 6). The Brazilian judiciary ostensibly protects these constitutional rights through both “concentrated” and “diffuse” judicial review.

ESCRs have a substantial doctrine for many rights of progressive development or realization. States party to the ICESCR pledge “to take steps” to the maximum of their available resources to achieve progressively the full realization of ESCRs. Article 2 (1) of the ICESCR states: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures” (Alston 1992; Limburg Principles 1993; Craven 1995; United Nations, Fact Sheet 16 revised 1996; Goldewijk et al. 2002).

In addition to progressive development of all the rights in the ICESCR, the Economic, Social and Cultural Rights Committee, which explains and monitors that treaty, has established a set of core obligations of states. These core obligations are roughly analogous to the non-derogable rights of the ICCPR in the sense of being the most important obligations (Hunt 1998). There is no permission to derogate from any of these “second generation” human rights in the ICESCR, even in an emergency, disaster or armed conflict, because the poor are so vulnerable in those moments. Furthermore, international humanitarian law forbids any state action to harm the rights of civilians to humanitarian assistance and numerous other rights under occupation. There is a minimum effort required of states to protect every right in the ICCPR, particularly focused on using any limited resources for the most needy. These include attempting to assure access to employment, food, basic shelter, housing, sanitation, essential drugs, health care, and free and compulsory primary education, especially for the most needy. To this extent the debates on cultural relativism intrude on the larger project of promoting “second generation rights” affecting women, children, and people generally etc., including the core obligations of the International Bill of Rights, which are universal and immediately binding legal requirements.

Most violations of ESCRs affect individuals, as with CPRs, though there are some rights, such as the right to negotiate as trade unions and to form religious associations, which are indeed group rights. Some violations have enormous consequences that are rarely acknowledged. Sanitation is an enormous killer. Lack of clean water, for example, kills two million children annually and has killed more children in the past decade than were killed in all the wars since World War II. Other “second generation rights,” such as those from the International Convention on Transnational Crime, impose legally binding rules on crimes of trafficking on a best-efforts basis to protect the rights of victims, such as restoration of property.

The ICESCR does require immediate action that leads to enforcement for some of the rights, not just a best-efforts standard. This applies to eliminating discrimination; establishing the right to form or join labor unions and to strike; protecting children and young people from economic and social exploitation; protecting equal pay for equal work; protecting the right to alternative private schools; and allowing free scientific research. Another immediate requirement of the ISESCR is that within two years of ratification, states must develop a plan for universal, free primary education. Discrimination based on race, sex, ethnicity, religion, opinion, social origin, property, disability or other status, and in the provision of the rights to healthcare, education and work, is immediately and strictly prohibited. This treaty also requires that priority be given to the most needy, as well as to any groups or groups of individuals suffering discrimination regarding these rights.

The progressive development of these rights also mandates that states reduce the barriers to full participation in ESCRs, as well reduce the impoverishment of the population over time, particularly of the most poor. Without independent, NGO evaluation to determine if efforts to improve the protection of these rights are undertaken, there is likely to be no improvement in those rights. Those improvements, of course, can occur through the private, as well as the public sector, but they must be made.

Usually, universal human rights norms are legally derived from UN-based treaties, as well as the UN Charter. On the international plane, both treaty-based and UN Charter-based institutions multilaterally monitor compliance with these rights (Flood 1998) as well as clarify the norms in theory and as applied to particular cases. Cubias Medina, a member of the Committee on Migrant Workers, has argued that the “only way that the treaty bodies would achieve a greater political or judicial authority would be through the creation of a world court of human rights”(UN Document, December 14, 2005). Without courts, there is no easy path to treaty enforcement. UN human rights monitoring committees can document violations and assert non-binding but explicit judgments of violations, based on their soft power.

The United Nations treaty-based human rights system provides expert committees to review compliance with the norms in each treaty concerning economic, social, and cultural rights. Treaty-based committees of independent experts review compliance with the norms in each treaty. These committees review states parties periodic reports, which are required by each treaty about every four or five years on their compliance. The reports are reviewed by these experts, as well as NGOs, and discussed publicly in their subsequent committee hearings. Often, the committees can also review specific complaints (“cases”) and issue judgments stating the requirements of the relevant treaty clauses, both in those cases and in general comments. Both case judgments and general comments constitute non-binding, but influential “soft law,” often presumed to indicate the content and direction of general rules and principles that are generally accepted as binding legally. By contrast, the Charter-based bodies had large impact because of their political importance in the UN system. More recently, the apolitical, treaty-based human rights bodies have become much more direct in criticism of country-compliance. They are also more reliant on NGO information in evaluating member state performance than the Charter-based institutions like the Human Rights Council, the General Assembly, the Security Council, and the High Commissioner for Human Rights.

UN Monitoring and Protection of ESCRs

There are two types of moments of UN review of ESCRs. The first occurs for those states party to the ICESCR, when and if they supply states parties reports, and largely when NGOs challenge information supplied by states, or the Committee on Economic, Social and Cultural Rights raises questions for the states to address, thus signaling to NGOs to provide contradictory information. Equivalent moments occur for the other treaty-based bodies that have significant ESCR content.

The most important treaty-based outlet is the Committee on Economic, Social and Cultural Rights (CESCR). In two annual sessions it monitors the implementation of the rights contained in the ICESCR. The CESCR holds a pre-sessional working group meeting of five days prior to each of the committee’s public sessions, reviewing state party reports. The working group identifies the questions that will be asked of the states in order to have productive conversations and to stimulate necessary research and reforms of state party practices and compliance. The first afternoon of each formal session of the CESCR is set apart to hear NGO representations on the states parties reports that the committee is about to consider. NGOs also hold press conferences to disseminate findings of their own (and sometimes use the occasion for fundraising.) NGOs’ statistical reports on ESCR issues can become subjective or controversial.

Since few states follow the committee’s guidelines on reporting, NGO critiques and information are welcomed (CESCR Guidelines on States Parties under the ICESCR 1991). NGOs are invited to make public submissions before the committee, along with written reports. Since December 10, 2008, a new Optional Protocol to the ICESCR allows states parties to permit the CESCR to receive individual communications, as do other expert treaty committees where the treaty contains ESCR provisions.

Most treaty-based, human rights institutions, as well as the special procedures of the Human Rights Council and its Universal Periodic Review, along with the International Labour Organization (ILO), permit and encourage NGO speeches and lobbying during sessions, as well as informal private consultations. NGO information, if concrete and documented, may correct or counter any distortion from government sources. The ILO, under Article 18 of the ICESCR, submits states parties reports, based on over 100 ILO treaties, under the labor provisions of the ICESCR (Articles 7–10 and 13). The rigorous quality of the research must be apparent for the NGO information to be taken seriously. Of course, there are legitimate differences of views over the facts, as well as different interpretive frameworks.

The second type of moment comes from special procedures established under UN Charter-based institutions, such as the UN Human Rights Council. They might involve alerts from working groups or special rapporteurs on behalf of vulnerable individuals identified by NGOs. They may also be focused on a peacekeeping mission with which the UN is involved or, most often, a particular case in which NGOs are also alleging CPR violations.

Individual rights have more often than not concerned groups, rather than single individuals. This partly reflects the fact that many economic and especially social and cultural rights are inherently concerned with rights that are protected and enjoyed jointly among groups. However, there have been developments in addressing complaints of groups of individuals about their established rights: for example, to education, development, health, etc. As with CPRs, there are examples of violations that have been corrected after complaints, just as there are many more examples of violations that persist systematically without being acknowledged or addressed, let alone redress attempted.

Special rapporteurs for the UN and other international government organizations (IGOs) and treaty-based committees have almost always lavished praise on NGOs for providing necessary correctives to the official states parties reports on compliance. For example, as the special rapporteur for torture, Manfred Nowak indicates in his reports whether states have followed up on his recommendations. NGO reporting is presented in italicized paragraphs whenever a government has failed to act (Nowak 2008). Furthermore, the mantra of civil society participation and consultation is stated routinely if not universally in almost every UN body. It is certainly clear, as the UN High Commissioner for Human Rights asserted, that “the cooperation of non-governmental organizations is of paramount importance for ensuring follow-up and implementation of mandate-holders’ recommendations […] to identify and fill protection gaps” (UN High Commissioner for Human Rights, 2008: 19, paras. 75 and 76). The recommendation to enhance NGO impacts has been to “improve communications and other activities” (Nowak 2008:20, para. 78.) – a somewhat vague, though not inconsequential commitment. The question remains: What is the quality of such NGO and civil society involvement: lip-service, consequential meaningful involvement, or real pressure?

Most treaty-based institutions, and the special rapporteurs of the Human Rights Council, say that they do make efforts to seek out NGOs, as well as asking states parties to cooperate with NGOs in obtaining information for their periodic reports, and disseminating the expert committee’s conclusions from previous reports. Thus, the Committee on Economic, Social and Cultural Rights asked Poland to do both tasks (see UN Document E/C.12/POL/Q/5, Jan. 8, 2009:2.) In some cases, special rapporteurs do not trust government sources at all and rely almost entirely on NGOs. Thus, Juan Miguel Petit, the special rapporteur on the sale of children, child prostitution, and child pornography, did not receive any response for his reporting on Chad, Cambodia, Guatemala, and Mexico. In the latter case, the rapporteur singled out Lydia Cacho Ribeiro, a journalist and human rights activist, who received many death threats for her dramatic accounts of attacks on women and children (UN Document A/HRC/7/8/Add.1, Mar. 4, 2008: especially pp. 3, 4, 6, 7, 9, 15).

States Parties Reporting on ESCRs

Despite comprehensive UN studies, such as the Maastricht Guidelines on how to operationalize ESCRs, whose conceptual definitions have been provided in Committee General Comments, most states ignore such evaluations. The main occasion for comprehensive statements has been periodic evaluations of states parties reports to the various treaty-based committees. This eliminates evaluations by powerful, non-EU countries like the USA, Russia, and China, which do not participate.

States do evaluate ESCRs. Outside of the context of the ICESCR, the US State Department website evaluates ESCRs with respect to the right to unionize, banning child labor, and acceptable work conditions. This is often more systematic than reviews of ESCRs by NGOs, though the choice of topics reflects US ideology. Since the late 1970s, when states began filing states parties reports to the two human rights covenants, they have provided a welter of information on both CRPs and ESCRs, some of which did represent progress. In the early days, states parties only responded concerning those rights where they could credibly claim progress, instead of the current practice of reporting on all the articles of all seven main human rights treaty reporting systems. The Yearbook on Human Rights for 1979, for example, shows more state reporting on ESCRs than CPRs. This was certainly the case for developing countries, most of whom claimed the greater importance of ESCRs. However, many developed countries also provided more reporting on ESCRs, including Italy, West Germany, Cyprus, Canada, Australia, Japan, the Netherlands, New Zealand, and Sweden. This was not the case with the USA (United Nations 1986). In those days, NGOs lacked the access to counter these state claims. Yet, now that they enjoy this access, they generally disregard most of the articles in these treaties.

In terms of state self-reporting to treaties, states should collect data and/or evaluate the quality of official data collection on the protection of ESCRs. They can formulate plans and/or evaluate government plans to improve protection steadily based on valid indicators, evaluating government implementation of the plans or achievement of improvement goals, and evaluating grievance mechanisms and court cases for individuals who allege that their rights have been violated. Few if any NGOs do any of these functions, certainly not within a human rights framework that systematically evaluates the rights protection in the various treaties.

From the Universal Declaration, required monitoring ought to include Article 22 on ESCRs required for dignity and personality development. Unlike the ICESCR’s Article 2(1), there are no provisions accepting “achieving progressively the full realization of the rights recognized.” The 155 states parties to the ICESCR would be bound by its provisions, but ironically, some argue that the 38 non-states parties are bound by the more stringent ESCRs provisions of the UDHR, especially Article 22, which sets out the minimum requirement of ESCRs for dignity and personality development. This lacuna provides a window of opportunity for NGOs to legislate and to monitor those states which prevent dignity through official corruption and/or inaction.

More accurate reporting is needed for the treaty bodies monitoring secondgeneration rights, the ICESCR, the Convention on Migrant Workers and those of the International Labor Organization, as well as others which have such rights included, such as the Children, Women, and Race Conventions. There are some overlapping provisions among these treaties. For example, both CEDAW and CRC have provisions on women migrants and children migrating on their own.

The movement toward a unified reporting scheme for the seven treaty-based, human rights expert bodies should maintain as much focus on second-generation rights. It is not clear whether such a unified reporting scheme will reduce or increase attention to ESCRs, depending on how they are incorporated and addressed when combined with the other rights. There was general support from the treaty-based committees for harmonizing reporting guidelines. Much remains to be sorted out, particularly how a unified system would respond to state reservations (UN Document HRI/MC/2005/5). The Human Rights Council has begun its universal review of all UN member states, which follows the OHCHR global report on the human rights situation, to be reviewed by the Human Rights Council.

The critical information needed to monitor ESCRs includes the following:

  • Whether a state party has adopted a national framework law, which identifies available resources and the most cost-effective way to achieve ESCRs.

  • Whether a state party has adopted indicators to evaluate its own progress toward each enumerated right (and which NGOs should also develop and use to evaluate such progress).

  • Whether international financial institutions take compliance with the ICESCR as a criterion of eligibility for assistance, especially regarding the most needy groups.

  • Whether each right under the ICESCR has been incorporated into domestic law.

  • Whether judicial remedies exist for rights under ICESCR, as such.

  • Factors which limit the achievement of ICESCR goals that are beyond the state’s control.

  • Statistical data on compliance with ICESCR goals by relevant demographic and other categories (rural, urban, ethnic origin, etc.).

  • NGOs should note ways that ethnic minorities could achieve self-determination.

  • Statistical evaluations that anti-discrimination measures, increased employment and training are effective, especially to protect marginalized and other disadvantaged groups, as well as non-nationals, women, etc., and to make sure any legislation needed to protect these groups is enacted and implemented.

  • Whether the maximum available resources have been devoted to fulfilling at least the core minimum rights, noting that the amount of available resources varies greatly among countries and that a poor country could make a large effort with few resources, just as a wealthier one could make less of an effort with greater resources. Thus, analysis of country commitments only begins with public expenditures and regulations devoted to protecting these rights. The efforts would be evaluated in terms of structures (overall policy), processes (resources and personnel devoted) and outcomes (on the particular rights).

  • Whether national human rights institutions are monitoring and promoting ESCRs, including investigating violations, promoting domestic legislation needed to implement treaty obligations, and providing training and education, especially in countries where the constitutions make this mandatory.

  • Whether donors and international organizations providing humanitarian assistance are complying with the human rights laws.

  • Clarifying misperceptions or misunderstandings that second-generation rights are vague or non-binding by providing training and lobbying to correct these views, as well as undertaking law suits in order to clarify any ambiguity that has emerged in the application of these laws, especially over reasonable state performance in the progressive realization of rights.

  • Undertaking lawsuits to remedy violations of rights, in order to assure that such rights are recognized as binding.

Among the types of violations that NGOs could be identifying are:

  1. 1 forcible evictions (right to adequate housing)

  2. 2 contamination of drinking water (right to health)

  3. 3 failure to ensure an adequate minimum wage (right to work)

  4. 4 failure to prevent starvation (freedom from hunger)

  5. 5 denial of access to reproductive health services (right to health)

  6. 6 segregation of disabled children in school (right to education)

  7. 7 failure to prevent employment discrimination on the basis of sex, disability, race, political opinion social origin, HIV status, etc. (right to work)

  8. 8 failure to prevent contamination of food, arable land, and water (right to food)

  9. 9 failure to limit the number of working hours (rights at work)

  10. 10 banning indigenous languages (right to cultural participation)

  11. 11 denying social assistance to people without a domicile or who seek asylum (right to social security)

  12. 12 failure to ensure maternity leave (protection of and assistance to the family)

  13. 13 arbitrary and illegal disconnection of water access (right to water)

  14. 14 excessive rates of infant and child mortality (right to health)

  15. 15 insufficient access to healthcare and essential medicines (right to health) (Report on Indicators for Monitoring Compliance with International Human Rights Instruments 2006)

NGO Monitoring of ESCRs

When NGOs do monitor violations, they tend to focus episodically on gross violations, much as they do with CPRs, only to a much less extent. Among the types of violation that have drawn NGO attention are: forcible evictions, failure to address famines, discriminatory denial of humanitarian relief and health services, segregating the disabled, stealing resources from indigenous properties, banning minority languages in minority dominant regions, and stealing water. However, there are many denied rights that NGOs typically ignore, which have devastating consequences. Informal or undocumented workers who are denied due process can be denied any redress if they work in the informal economy. Girls are often denied an equal education and often receive fewer calories in food as well. That treatment can continue into adulthood, where women have both rights denied and lack of judicial or administrative access because NGOs take on only the most notorious violations. For example, the Pakistani NGO, War against Rape (WAR), seeks justice for peasant women who have been raped by their wealthy landlords. WAR does wonderful work, but does not focus on the many grievances of women, particularly culturally, and the failure of schools and courts to take remedial action. The problem is partly one of non-events; if a violation is not noticed, it may be assumed that it does not occur. If NGOs do not take note, document, and complain, the suffering in silence is assumed to be natural and not worthy of human rights categorization and intervention.

NGO studies on ESCRs have grown in number, with Human Rights Watch at the forefront. Its executive director has advocated not only cataloguing violations of rights, but also making an effort to expand the understanding of government activities that affect ESCRs, albeit indirectly, and which thus should be part of the assessment of state accountability. In particular, states should not only provide public goods as positive rights, they also should take affirmative steps to reduce or eliminate economic, social, and cultural exclusion (Roth 2007). However, NGOs have not been systematic in surveying compliance with the full range of ESCRs. Nor have NGOs actively monitored state compliance, either in providing positive goods or in reducing exclusion. The gap in NGO monitoring is, despite all the claims about progress in ESCR monitoring, enormous. To the best of my knowledge, there are no NGOs that routinely assess compliance with either the Universal Declaration of Human Rights, which provides universal standards through customary international law, or the ICESCR, the most important ESCR treaty, as both a checking device on the work of its committee, as well as an independent source of information.

NGOs are not in an easy position to collect their own data on government spending programs. Thus, claims of violations involve less fact-finding and documentation and more interpretation. It is easier to ignore NGO claims that can be dismissed as ideologically or politically motivated. Still, history has often shown that human rights defenders were right most of the time about violent human rights violations. Finally, second- and third-generation rights are less amenable to adjudication through binding decisions by courts to halt and redress violations. Hence the need for legislation to establish fundamental standards of humanity to protect ESCRs, as with first-generation rights, especially during situations of internal violence that pose the greatest threat to human dignity and freedom. Fundamental standards of humanity should apply to everyone in all situations. Whether during and after violent conflict or not, there ought to be many egregious violations of ESCRs that are neither ideologically dismissible nor wildly interpretive, yet are independently documentable, which represent abject theft of public property or wholly inadequate attempts to fulfill positive action mandated by treaties.

Preventing the sale of children, child pornography, and prostitution are examples of ESCRs that require immediate enforcement. NGOs have been cited for distinguished service for addressing these violations. The special rapporteur praised Terre des Hommes for programs and facilities for child victims of sexual exploitation and trafficking. Using the model of “child protection” and “child rights,” it focuses primarily on the psychological and protection needs of trafficked and abused girls with Indian partner NGOs. In Cambodia, Terre des Hommes operates a program with a German NGO, ACT, working as community educators to help protect children from trafficking. Other examples cited are ECPAT, a network of 83 local NGOs in 70 countries, which provides care and services; Transit Home in Taiwan, which facilitates reintegration of child victims in society; and ECPAT, which works with local partners such as Maiti in Nepal, Alin O Salish Kendro in Bangladesh, and Fundacion Renacer in Colombia, with local NGOs in Chile and Guatemala providing crisis intervention and legal assistance. Casa Alianza in Honduras provides a residential program, financed by the Cooperation Agency of the Netherlands, to help 80 girls who were sexually exploited commercially (Petit 2008:19–20).

Humanitarian and development NGOs, focused on service delivery more than monitoring, are the NGOs most involved in monitoring second-generation rights. In UN legal development, only one NGO was present – and then only intermittently – at the task force attempting to operationalize the standards set up in the Declaration on the Right to Development. The UN has placed the role of human rights defenders high on its agenda, with the appointment of the special rapporteur on human rights defenders, as well as the various NGO forums, such as the 4th Dublin Platform for Human Rights Defenders and the 9th EU NGO Forum on Human Rights in Lisbon (UN Document A/HRC/7/28, Jan. 31, 2008:6).

Some indigenous groups, for example, are adept, alert and autonomous – almost modern – and others are completely traditional, inactive, and impotent. Conflicting tendencies can occur not only among these traits, but within them. The case of Brazil, under the progressive president Luis Ignacio da Silva (Lula), illustrates how land conflicts affecting indigenous titles can divide the government and various indigenous groups, though the issue is much more salient there, as well as on the issue of combating slave work. In the latter, NGOs alerted the government’s Special Slave Labor Mobile Inspection Group to rescue 1,064 rural workers from slavery-like conditions at the Pagrisa Farm and Mill (“Replies by the Government of Brazil,” Mar. 16, 2009:43). By contrast, when a French NGO, Zoe’s Ark, rescued 103 child slaves in Chad, many of them reportedly refugees from Darfur, six aid workers were sentenced to eight-year prison terms by a French court after a December 2007 trial in Chad (Associated Press, Jan. 31, 2008). The incident caused an international scandal among most UN states, despite the universal condemnation of slavery, because of Zoe’s Ark’s violation of Chad’s sovereignty.

NGOs – or, as they were called in the early postwar period, “unofficial organizations” – had been recognized as important actors in international politics since Lasswell and McDougal’s analysis of the evolution of international law (McDougal and Lasswell 1959) and Karl Deutsch’s studies of the integration of nations (Deutsch 1969). The belated development in the late 1970s of a universal human rights standard in UN rhetoric, including countries other than South Africa and Israel, was partly the result of the momentum established by the 1968 World Conference on Human Rights in Teheran, as well as the first confidential reviews of human rights complaints under ECOSOC Resolution 1503. Writing in the same year, Lador-Lederer drew a distinction between “legislative NGOs,” that advocated new norms and “tribunical NGOs,” that documented alleged violations by governments (Lador-Lederer 1968). Until 1993, the year of the Second World Human Rights Conference in Vienna, CPRs were either considered superior to ESRCs (in the view of the USA), or inferior to them (in the view of the Soviet bloc). Despite the explicit support at the Vienna World Conference for a customary international law, establishing that all types of human rights are equal and mutually interdependent, human rights NGOs have still put much greater efforts into monitoring compliance with first-generation rights. In monitoring ESCRs, NGO activities somewhat balanced between legislative and tribunical activities at the UN and other law-making and monitoring fora.

In fact, Lador-Lederer developed one of the first studies of the role of NGOs in the realm of economic welfare (Lador-Lederer 1963).) He argues that NGOs, especially those focused on the economy, such as trade unions, churches, and trade associations, made important inroads in international law, helping to reduce the monopoly of states as subjects of that law. NGOs have played a profound role in monitoring CPRs in both treaty-based and Charter-based UN human rights institutions (Flood 1998; Gaer 2002), beginning in the early 1980s and accelerating in the post–Cold War period in the treaty bodies, but retrenching significantly in many of the Charter bodies, where politics inhibits candor, even as they retain greater potential for influence, action, and implementation.

With respect to ESCRs since 1993, NGOs have been active not only in legislative efforts and documenting violations of second-generation rights, but especially in service provision activities. In the past decade, NGOs have been focused on attempting to develop treaty legislation on the rights to development, food, shelter, and indigenous rights, as well as establishing a UN mechanism to combat trafficking, and follow-up conferences on racism (Durban) and women (Beijing). The debates and NGO contributions have been rich and varied, but as with legislation on a comprehensive crime of terrorism, to no finished product. Still, the various NGO working groups, such as the NGO Committee on the Status of Women of the Conference of NGOs, have monitored the implementation of the Beijing Declaration and Program of Action, as well as organizing regional preparatory commissions for the next rounds of reviews.

Most autocracies are suspicious of civil society bodies, whose development and mobilization seeks to stop authoritarian regimes co-opting and controlling them. Instead, they oppose and seek to replace such repressive governments. Thus, the effort to promote monitoring of ESCRs is constrained by regime restrictions. Authoritarian regimes evaluate the advocacy of ESCRs as politically subversive. Semi-democratic regimes retain degrees of repression, rather than developing law-based institutions. While human rights NGOs have gained more space in Indonesia since the democratization of the 1980s, there have also been legal restrictions, such as law 8/1985, requiring the registration of NGOs, as well as adherence to ideological and morality criteria. The government also uses the law to create and register more compliant pseudo NGOs and to place restrictions, in Russian fashion, on foreign financing of NGOs. As of 2008, no effort to reform the 1985 law had been undertaken. (Jilani 2008:12).

Most of the major international non-government organizations (INGOs) are centered in the West. Many have “social justice” goals, where human rights are means to this end. For example, the slogan of the Center for Economic and Social Rights is “Social Justice through Human Rights.” While such orientations are legitimate, the polarized world responds politically, which also increases the politicization of NGOs’ efforts in more legal, quasi-apolitical fora, such as UN treaty-based human rights institutions.

In a semi-democratic regime such as Iran, for example, the special rapporteur on adequate housing was able to meet a variety of NGOs, which accounted for a highly critical report that cited inaccessible government credit facilities, the large number of land confiscations and forced evictions, discrimination against women inheriting land, and the poor services provided to informal settlements. The regime did not feel threatened by a critical UN report that would not generate much or any press attention. The NGOs do not appear to be political, such as the Center for Women’s Participation, the National Red Crescent Society, “civic and community organizations and lawyers dealing, among others, with women’s human rights, the living conditions in disadvantaged neighborhoods and rights of prisoners and victims of violence” (Report of the Special Rapporteur on Adequate Housing as a Component of the Right to an Adequate Standard of Living 2006:5).

Even in democracies or relatively open societies, NGOs often face the challenge of regime hostility either to international human rights institutions and legal superiority over domestic sovereignty, or to opposition to the relevance of ESCRs. Such opponents argue that those treaties themselves do not bind states that are not parties, or are not binding in the ways that CPRs are. All they have to do is try to improve the protection of these rights. This view, widely circulated by the USA, is flatly rejected by almost all human rights NGOs, as well as most states and the UN High Commissioner of Human Rights.

NGOs generally provide information on ESCRs on the basis of several non-legal criteria that are implied by the demands of treaty-based, ESCR instruments. First, NGOs generally pursue issues of greatest concern, usually with political salience and ramifications. This reflects the nature of NGOs, whose leading members are usually impelled to organize on the basis of what is of interest to them. Of course, a human rights NGO is often defined as a “group [which] seeks to secure the rights of all members of the society […] a human rights group seeks to keep the political process open to all legitimate political forces” (Wiseberg 1991:150). So, human rights NGOs are interested in politics, keeping the system open to all non-violent groups, and focusing on the political and civil rights of everyone, particularly excluded groups. This makes their activities seem political and one step removed from legalization in perception, even though legalization is the ultimate goal.

Second, it is easier for NGOs to focus on ESCR violations where they are already looking at CPR violations, where they have been focusing their resources, where ESCR violations magnify the political perceptions of injustice, and where correcting the CPR violations should ultimately reduce the extent of ESCR violations. Third, CPR violations, which are often violent human rights violations, are more likely to arouse the interests of the news media. ESCR violations are often not “newsworthy,” reflecting the stasis in which indigence and cultural and social exclusion represent ongoing facts of life that do not arouse media interest.

Fourth, such CPR violations, because of violence and greater state interests, gain greater foundation and membership interest, which supports the budgets and fundraising of NGOs. Finally, and most important, CPR violations are easier to define, operationalize, and monitor. It would be expedient simply to provide statistics from the UNDP’s Human Development Report, for example, but this represents results, which might be partly used for some core minimum rights that are immediately enforceable, but would not imply effort, use of resources and improvement in effort over time, which would also account for factors beyond the control of any government. By contrast, CPRs are immediately enforceable and comparatively easier to define and to count.

NGOs generally monitor ESCRs with a connection to CPRs. This is not theoretically problematic. Article 28 of the Universal Declaration asserts that “Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.” Human rights of all types are clearly interrelated, as basic human needs can clearly be best provided through the means of a rights-protecting system, where rights protect security, ethnic identity, participation, health, and work (Galtung and Wirak 1977a; 1997b). Thus, the persons most deprived of ESCRs need to participate in both political processes and aid and development programs from which they could benefit – rather than be treated as objects for which the outsiders, the strong, decide what the weak and often foreign groups are to receive, based on their own preconceived or self-serving notions. As Amartya Sen has long argued, famines have never occurred in democracies, presumably because open political systems provide more information and accountability about such catastrophes (Sen 1983). Systems closed to participation are more likely to violate ESCRs. Civil and political rights affect ESCRs, and vice versa. The many ESCR violations of indigenous peoples, for example, reflect their lack of political representation (Bay 1984). Yet, this does not obviate the need to evaluate the processes of state efforts to protect the rights that could lead to political and economic stability and welfare.

The report of a major NGO, Amnesty International Report 2009: State of the World’s Human Rights, covers all the countries of the world, but not one of the nearly 200 countries has a separate category for any ESCR (Amnesty International 2009). Human Rights Watch (HRW) does not have a world report, but collects specific reports on most countries. However, ESCRs represent only one of fifteen categories of topics on the HRW website, and most of the reports are not directly concerned with ESCRs (Human Rights Watch 2009).

Thematic Studies of ESCRs

Most studies commissioned by UN treaty- and Charter-based bodies emphasize the need for systematic review of all ESCRs, both those which are immediately required for enforcement and those necessitating progressive development. There have been many path-breaking approaches to monitoring CPRs, from hiring former military officers to review compliance of targeting decisions with International Humanitarian Law (IHL), to taking surveys of residents to project the extent to which invasions respect the laws of occupation. However, there is also a tendency to focus research on the most important and controversial human rights issues raised in a particular crisis event or a policy involving major state powers. The tendency is to examine ESCR violations that have a link to CPRs or to UN peace projects.

There have been various initiatives affecting second- and especially third-generation rights, such as the protection of indigenous peoples, including the right to their physical as well as their intellectual property (such as for natural medicine); the right to sanitation and clean drinking water and food more generally; rights for migrants and trafficked persons; and possible new groups of rights for vulnerable minority groups, like the Roma, Sinti, and Traveller communities, and those of African descent in Latin America and the Caribbean.

One of the most extensive efforts at legislating second-generation norms in recent years has been the Working Group on the Right to Development, a Charter-based body of the former Human Rights Commission. The USA, Japan, and the European Union (EU) states have opposed a legally binding right to development, though the EU states and Japan have supported the eventual realization of a right to development. Since 2003, efforts have been made to implement mechanisms as proposed in the 1986 Declaration on the Right to Development. The first is a working group to monitor progress, to review reports from NGOs and international agencies on the relationship between their particular activities and the right to development, and to provide recommendations to the Human Rights Commission (now the Council) and the High Commissioner on Human Rights on implementation. An OHCHR unit works on the Millennium Development Goals, which the UN member states committed in 2000 to achieve over the coming decades. Yet these goals are not part of a legally binding instrument, even though that is the preference of the Non-Aligned Movement (NAM). The USA was not present at the meeting, both because it was not a member of the HR Commission and because it chose not be an observer. The NAM, represented by Malaysia, complained about the lack of progress in operational definitions in the past two decades. It argued that the mainstreaming of development into human rights is not the same as development. Yet the NAM argues that the right to development is a bridge between the first and second generations of human rights, and perhaps the third, as development might be considered as such. Perhaps civil and political rights should be included in the right to development, following the development policy of CARE International (Report of the Working Group on the Right to Development 2006).

The EU and its candidate countries favor finding ways of practical implementation, based on a human rights perspective on national development plans, since states are responsible for development. They favored the mutuality of security, human rights, and development, and supported Millennium Development Goals, such as number 8, allocating 0.7 percent of GNP to development assistance. It also favored coordinated action at the international and national levels. Even if a legally binding instrument will not be promulgated, the non-binding, soft law that has emerged could be the basis for ESCR monitoring. The principles of the right to development are: equality, non-discrimination, participation, transparency, accountability, international cooperation, as well as equity, the rule of law and good governance (UN Document E/CN.4/2002/WG.18/6 and E/CN.4/2006/26, p. 10, para. 40).

Another thematic initiative has been in indigenous rights. The UN General Assembly Declaration on the Rights of Indigenous Peoples resulted from 20 years of UN initiatives, including the Working Group on Indigenous Populations of the Human Rights Commission and the Permanent Forum on Indigenous Issues, as well as reports from special rapporteurs, such as Miguel Alfonso Martinez (UN Document E/CN.4/Sub.2/1999/20) and Rodolfo Stavenhagen (UN Document E/CN 4/2004/80/Add2). This example of soft law – given the opposition of many of the developed states, led by the USA and Australia, to any binding treaty – may be unlikely to develop into customary international law, like other high-profile General Assembly declarations. Control over resources and land is a key ESCR of indigenous rights, as embodied in this declaration. The loss of indigenous lands and resources has not only harmed the welfare of indigenous people, but often threatens their very existence. Indigenous peoples are entitled to limited autonomy over their governance generally and their resources in particular. Yet indigenous peoples in resource-rich regions have experienced low levels of social services and education, or none at all, from the states that control their resources. States often falsely claim that indigenous peoples are unproductive, when in fact they do not collect statistics from the informal, subsistence economies typical of many indigenous peoples (UN Document E/C.19/2004/2, Feb. 10, 2004:7).

Some violations of indigenous rights result from states not respecting treaties with the indigenous peoples themselves, and others from not respecting existing multilateral treaties. The Committee of the Rights of the Child, the CRC expert committee, analyzes issues facing indigenous children. In particular, the CRC committee has been concerned that poverty and lack of education have contributed to the disproportionately high rates of incarceration of indigenous children. This has been one of several stimuli to forced separation of children from their families, which prevents cultural and linguistic traditions, which are an IESCR, from being passed on to the next generation (UN Document E/CN.4/2004/NGO/3, Feb. 4, 2004:2).

A variety of special reports developed from UN Charter special procedures have been developed. A small selection prepared in early 2004 for the Annual Human Rights Commission meeting included: Human Rights and Extreme Poverty (UN Document E/CN.4/2004/43, Feb. 29, 2004); Adverse Effects of the Illicit Movement and Dumping of Toxic and Dangerous Products and Wastes (UN Document E/CN.4/2004/46, Dec. 15, 2003); Adequate Housing as a Component of the Right to an Adequate Standard of Living (UN Document E/CN.4/2004/48/Add.l, Feb. 11, 2004); the Fundamental Principle of Non-discrimination in the Context of Globalization (UN Document E/CN.4/2004/40, Jan. 15, 2004); and the various reports of the Commission on the Status of Women (UN Document E/2004/27-E/CN.6/2004/14, Mar. 1–12, 2004).

Dilemmas in Monitoring ESCRs

A classic dilemma for human rights is whether to criticize and thereby to put pressure on governments, or to assume that, short of foreign aid dependency, constructive diplomacy might produce better results. The ICRC, for example, has been present in Burma/Myanmar since late 2002, without producing much evidence of success. Yet, in the case of the People’s Republic of Korea, given the five decades of repression by a pariah regime unconcerned with international opinion, it is not clear that public or private criticism has had any positive effects either.

There is a dilemma over which are the best ways to operationalize monitoring and pressuring for protection of ESCRs. Some argue that economic rights are best protected by land reforms, but that land reforms have usually been successful only under authoritarian regimes (Taiwan, Korea, China), and not under democratic regimes (Philippines, El Salvador). It is clear, however, that governments are obligated to make their best efforts to improve these rights. This is not possible when their scarce resources are misdirected from their intended purposes to corrupt ones. Unfortunately, because of the secrecy of most corrupt transactions, documenting corrupt governments whose actions harm economic rights is difficult.

For example, beyond debates over the content of ESCRs, such as the “right to food” (Kent 2005), there are legitimate issues over whether liberalization of food production, distribution and sales, or of the economy more generally, has production, income, and distributional consequences. Sometimes, such debates raise crucially damaging consequences, and in others cases they distract from more serious concerns. However, the division caused by the South’s call for new terms of economic exchange with the North further alienated the West and newly industrializing countries of East Asia, which favored the economic order and the confluence of ESCRs with the demands for a new international economic order. However, ESCRs have received much less attention than CPRs in the West, which presumes that only the latter are immediately binding and that they should logically precede ESCRs. Since 1993, the USA and other Western states have continued to the USA and some other Western states continue to reject the Vienna Declaration of the equality and mutual dependence of CPRs and ESCRs. A candid view was revealed by longstanding UN special rapporteur on various topics, Philippe Texier, who admitted that “There was a sense in the Committee [on Economic, Social and Cultural Rights] that, despite the concept of the indivisibility of rights, economic, social and cultural rights did not have the same value as civil and political rights and were not equally justiciable” (“Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights, Adoption of Draft General Comment No.15 on the Right to Water,” UN Document E/C.12/2002/SR.50, Nov. 28, 2002:6; emphasis added).

The 1988 Brazilian Constitution guarantees the protection of social, economic, and cultural rights – unlike most states. Brazil, in its state party report did not say how those rights were protected as such, though it does have many statutory programs aimed at their fulfillment. The Committee on ESCR was particularly interested in the rights of the most disadvantaged and marginalized individuals, particularly regarding “health, an adequate standard of living for labor and favorable labor conditions” (UN Document E/C.12/BRA/Q/2/Add.1, p. 13, para. 29). Social movements have been influential in Brazil, though it is not clear whether its authoritarian traditions still lead to significant state control and cooptation. The Brazilian government has ongoing dialogues with women’s social movements, which resulted in the First National Plan on Women’s Policies in 2004, which also involved 17 ministries and secretariats. This led to a Second National Conference on Women’s Policies in 2007, followed by a second National Plan. The Brazilian government’s support for the 2009 UN Campaign against Violence against Women is evidenced by its target of 500,000 signatures by August 2009. Another government campaign was the 2008 National Campaign to Combat Violence against Rural and Forest Women, including rubber tappers, coconut crackers from the Amazon, Afro-Brazilians and Quilombola women. Brazil has set up nuclei to educate and combat discrimination against the Afro-Brazilian population and other minorities, made of representatives of community representatives, labor unions, NGOs representing blacks, Indians and handicapped persons, public prosecutors and defenders (ibid.).

Western states have been focused, to the extent that they look at second-generation rights, on transparency and good governance, and to a lesser extent on indigenous rights, where the USA, Australia, and others are quite opposed. While corruption is certainly a factor in reducing the effort to promote ESCRs, there is a high degree of hypocrisy, as Western states either look the other way or condone corruption as a tool for gaining and retaining influence over regimes that are dependent on or choose to utilize official development aid. Criticism of foreign aid is a vast topic. Few other than Jeffrey Sachs (2007) regard foreign aid as little more than a multi-trillion-dollar failure (Easterly 2006; Collier 2007). These studies provide evidence against both the donor and recipient states for violating economic rights, on the grounds of not improving performance, or even corrupting performance with scarce public resources. There is certainly a role for rapporteurs and NGOs to monitor corruption, Yet UN bodies, surprisingly, have not monitored corruption in particular countries, and there is a paucity of even thematic studies on corruption as an ESCR violation. Sensitivity to state interests also explains why there are very few, if any, UN studies of the effects of specific official foreign assistance on ESCRs.

The protection of ESCRs is said to be as likely to prevent conflict as safeguarding CPRs. Their violation is arguably just as likely to be a source of conflict. Despite the array of legal processes for reviewing human rights records in apolitical settings, quite often the largest constraint on alleviating these violations has been the lack of a political solution to conflicts, or the lack of viable political processes and governing institutions needed to address existing problems.

Many issues arise under the emerging norm or right to development. First, should there be a claim to more assistance, or just more appropriate assistance? How does an NGO or state conduct a social-impact assessment? How much economic policy variation is implied in UN road-maps to development? Should a rights-based approach to development assistance be required? Does mainstreaming the right to development imply a results-oriented approach, requiring social impacts of trade and development policies? Should state reviews focus on sustainable growth with equity or poverty eradication, or providing debt relief to heavily indebted poor countries? Finally, should a legally binding treaty on development directly affect the monitoring of ESCRs?

A rights-based approach to development is the approach recommended in a study by the former UN Sub-Commission on the Promotion and Protection of Human Rights (which existed until 2006) (UN Document E/CN.4/Sub.2/20094/18). Generally, improvements in ESCRs are more likely under democracy than autocracy, though the latter, with its greater variation in economic and social development than the “tortoise approach” of democracy, can produce even more dramatic gains (or losses) in these rights. More generally, the poor are less participatory and represented under authoritarian rule – a regime which not only generally leaves them worse off than democracy, but which also generally allows less space for other civil society institutions.

How to Mainstream ESCRs

The general direction of the literature on ESCRs is towards implementation and promotion of these rights. The general disagreements have not been resolved over whether the UDHR is binding and universal, as opposed to non-binding and/or culturally relative in interpretation; the extent to which state parties are really bound to obey treaties, especially the ICESCR, but also those on race, women, and children, as well as the 200 ILO conventions; and the extent to which reporting on violations should be interpreted narrowly or broadly to include indirect and exclusionary effects on the enjoyment of ESCRs. These debates will continue, but there is a sense that they are not ever going to be resolved definitively. Most of the future debates will probably focus less on the substance of these rights and more on strategies for their progressive realization. While the New International Economic Order’s demands for restructuring the global economic system have been put in abeyance, demands to change the incentives and compensations for globalization are likely to dominate discussions. Wealthier states have begun both to provide more economic assistance and to improve foreign aid in order to facilitate self-sustaining economic growth, as well as to insist on better accountability for performance and corruption among recipients of aid. These debates are likely to move from mere policy discussions to arguments about rights and legal responsibilities. In time, there should be greater attention to human rights remedies and penalties for violations (Shelton 2005).

In recent years, there has been considerable monitoring of progress toward the Millennium Development Goals. These are not legally binding commitments, but they draw more attention for their salient political status than the theoretically more legally binding treaty instruments. Even if these goals do not include all the rights commitments of states and operate only for a specified time period in the developing world alone, rather than indefinitely everywhere, they do emphasize the most compelling aims, such as mandating universal primary education (goal 2) or reducing the number suffering from hunger by half by 2015 (goal 1).

The denial of ESCRs has been an important cause of violent conflict, as well as an impediment to peace-building, and is generally associated with violations of CPRs as well. Poverty itself, particularly when linked to government policy, is a high-security risk factor, since it is also correlated with access to political participation and justice. Even where not connected to peace processes and building, excluded groups, such as the elderly, women and the disabled, suffer in silence, as political systems accept such discriminatory treatment as inevitable realities, providing neither exit, voice, nor loyalty (Hirschman 1970), just apathy, cynicism, or occasionally rebellion.

There are many reforms that are just as helpful for second- as for first-generation rights. First, to provide halt to and redress for violations, more resources are needed to finance legal assistance and legal clinics. This would apply to ongoing developments in regional human rights courts, national case law and legislation, as well as national courts. Second, legislation needs to be completed to clarify that rights to food, work and shelter should be mandatory, not just on a best-efforts basis, and that the Responsibility to Protect norm established at the Millennium Summit should permit UN Security Council authorization for critical situations requiring the intervention of the international community.

The difficulties of democratic transitions in the Third Wave, combined with the pro-democracy foreign policies employed periodically by the USA and other Western organizations and states, have led to deep views that democratic regime changes do not lead to fundamental change in economic welfare and social structures, or even in political powers, given the gap between de jure changes and de facto realities. If structural change is needed to improve social status and economic prospects for poor majorities, it becomes more difficult to consider ultimate causes of ESCRs violations as equivalent to human rights violations.

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