Economic, Social and Cultural Rights Approaches

Claire Mahon“Building an Asian community of practice on monitoring and

budget analysis”

SILAKA and Social Watch Workshop

Phnom Penh, Cambodia

9 – 11 July 2007

Outline of the Session

What are human rights & ESC rights? Why use an ESCR approach? How are ESC rights monitored and

enforced? How can adopting an ESCR approach add

to your advocacy strategies?

What are human rights?

Some of the most important characteristics of human rights are that they: – Are universal—the birthright of all human beings – Focus on the inherent dignity and equal worth of all human beings – Are equal, indivisible and interdependent – Have been internationally guaranteed – Are legally protected – Cannot be waived or taken away – Impose obligations of action and omission, particularly on States

and State actors – Protect individuals and, to some extent, groups – Provide a means to ensure accountability, including for non-state

actors

What are human rights?

Human rights standards are codified in international human rights law through treaties and conventions (and soft law instruments)

Incorporated into domestic law (constitutions, statutes, policies)

“Human rights constitute a set of performance standards against which duty-bearers at all levels of society – but especially organs of the State – can be held accountable.”

What are economic, social and cultural rights?Among the rights guaranteed to all human beings under international treaties, without

any discrimination on grounds such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status, are:

The right to the highest attainable standard of health The right to work and just and favourable working conditions The right to adequate food The right to adequate housing The right to water and sanitation The right to social security The right to education The right to cultural expression The right to participate in cultural life

Freedom from arbitrary interference with privacy, family, home or correspondence

Experience sharing

What do you understand economic, social and cultural rights to be?

What ESC rights do you work on?

What is the legal basis for ESC rights? Obligations for ESC rights emerge from the consent of

governments to be bound through treaties, conventions, declarations, resolutions, guidelines, comments from human rights bodies...

ESC rights are enshrined in:– Universal Declaration of Human Rights (UDHR)

1948;– International Covenant on Economic, Social and

Cultural Rights (ICESCR) 1966;– International Covenant on Civil and Political Rights

(ICCPR) 1966;

What is the legal basis for ESC rights? (cont.)

– International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965;

– Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979;

– Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984;

– Convention on the Rights of the Child (CRC) 1989;– International Convention on the Protection of the Rights of All

Migrant Workers and Members of Their Families (ICRMW) 1990;– International Convention on the Protection of all Persons from

Enforced Disappearances (ICED) 2007;– International Convention on Protection and Promotion of the

Rights of Persons with Disabilities (ICPD) 2007.

What is the legal basis of ESC rights? (cont.) They are further explained in:

– General Comments of the Committee on Economic, Social and Cultural Rights, i.e.:

• No. 15 on the right to water; • No. 4 on the right to adequate housing; • No. 7 on the prohibition against forced evictions; • No. 18 on the right to work; • No. 14 on the right to health; • No. 13 on right to education; • No. 12 on the right to food; • and others on the ESC rights of the elderly (No. 6),

disabled (No. 7), women (No. 16).

What is the legal basis of ESC rights? (cont.) They are also further explained in:

– Resolutions of the Human Rights Council and former Commission on Human Rights (on such topics as the prohibition of forced evictions; the right to health; the right to education);

– Conventions of the International Labor Organization (and other specialised bodies);

– General Assembly resolutions, such as the resolution adopting the UN Guidelines on Development-Based Evictions and Displacements

– Customary international law

Experience sharing

What makes ESC rights different from civil and political rights?

What makes ESC rights similar to civil and political rights?

Characteristics of ESC rights?Economic, social and cultural rights: Are justiciable (national and international case-law) Are ‘progressively realizable’

Article 2(1) ICESCR: “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.”

Involve immediately realizable obligations, including:– The obligation not to discriminate between different groups of people in the

realization of the rights in question; – The obligation to take steps (including devising specific strategies and

programmes) targeted deliberately towards the full realization of the rights; – The obligation to monitor progress in the realization of human rights. Accessible

mechanisms of redress should be available where rights are violated.

Characteristics of ESC rights?

Economic, social and cultural rights: Involve an identifiable ‘core content’ or ‘core obligation’ (the

‘survival kit’)– the obligation to satisfy the minimum essential level of each right

Involve both positive and negative obligations Include a prohibition against retrogressive measures

– no right can be permitted deliberately to suffer an absolute decline in its level of realization, unless the relevant duty-bearer(s) can justify this by referring to the totality of the rights in force in the given situation and fully uses the maximum available resources

Involve (theoretically) 3 elements/duties:– Duty to Respect– Duty to Protect– Duty to Fulfil

Characteristics of ESC rights?

To respect human rights means not to interfere with their enjoyment. – For instance, States should refrain from carrying out

forced evictions and not arbitrarily restrict the right to vote or the freedom of association.

To protect human rights means to take steps to ensure that third parties do not interfere with their enjoyment. – For example, States must protect the accessibility of

education by ensuring that parents and employers do not stop girls from going to school.

Characteristics of ESC rights?

To fulfil human rights means to take steps progressively to realize the right in question. – This obligation is sometimes subdivided into obligations

to facilitate and to provide for its realization. • The obligation to facilitate refers to the obligation of the State

to engage proactively in activities that would strengthen people’s ability to meet their own needs, for instance, creating conditions in which the market can supply the health-care services that they demand.

• The obligation to provide goes one step further, involving direct provision of services if the right(s) concerned cannot be realized otherwise, for example to compensate for market failure or to help groups that are unable to provide for themselves.

What is the content of ESC rights? Governmental obligations relevant to ESC

rights - the 4-A Scheme:– Availability– Accessibility– Acceptability– Adaptability– (Quality)

What is an ESCR approach? “A human rights-based approach involves referring to

relevant standards contained in international human rights law to assist duty-bearers (usually the National Government) in meeting their obligations, and strengthening the capacities of rights-holders to claim their rights. “

An ESCR approach is built on human rights principles, particularly:

• P – participation and inclusion• A – accountability• N – non-discrimination• E – empowerment• L – rule of law

What is an ESCR approach?An ESCR approach can take a variety of forms: Causality analysis – what rights are violated and why?

i.e. Who is not getting educated/housed/fed? Where are they, and why are they excluded?

Assessment of roles/patterns – who should do what to protect and fulfil ESC rights?

Analysis of capacity gaps – whose capacity needs to be developed to ensure these rights?

Action – who has to do what to ensure this right? Programme of cooperation – how can partnerships assist

in this process?

Why apply an ESCR approach?An ESCR approach: focuses on the individual as a subject of rights and who has claims

on those who have duties and obligations implies clear accountabilities requires attention to both outcome and process gives more attention to exclusion, disparities and injustice, and

addresses the basic causes of the problems acknowledges the interconnection between social, economic and

cultural rights set in a civil and political context focuses on institutional reform and national policy review can be used to challenge power imbalances and inequality promotes the rule of law (stops impunity and corruption, ensures

access to justice, etc.)

Experience sharing

Do you already adopt an ESCR approach to your work? If so, what are the successes and challenges of this approach?

How could an ESCR approach help your work?

What would it mean to develop an ESCR approach to your work?

How does an ESCR approach help our work on the MDGs?ESC rights strengthen ways to achieve the MDGs by: Helping to sharpen the strategies for achieving the MDGs by addressing the

discrimination, exclusion, powerlessness and accountability failures that lie at the root of poverty and other development problems;

Reinforcing the legitimacy of the Goals’ implementation strategies by building upon human rights treaty obligations voluntarily undertaken by Governments;

Harnessing the mobilizing potential of human rights discourse; Enhancing the sustainability of the strategies to meet the Goals, looking beyond

global “averages” to address the root causes of poverty and underdevelopment, including patterns of discrimination against particular groups;

Building participatory and empowering strategies upon civil and political rights; and

Factoring in human rights processes and institutions—e.g., courts, national human rights institutions, informal justice systems and mechanisms at the international level (including the treaty bodies)—to strengthen transparency and accountability for the achievement of the Millennium Development Goals.

How does an ESCR approach help work on poverty reduction? Human rights violations are both a cause and a consequence of poverty. Human rights require the process of formulating a poverty reduction

strategy to include the following elements and principles: – Identifying and prioritizing action to improve the situation of the poorest; – Analysing the underlying power relations and the root causes of discrimination; – Ensuring that both the process and the concrete poverty reduction targets are

consistent with international human rights standards; – Ensuring close links between macroeconomic design, sectoral initiatives, and

“governance” components and principles such as transparency and accountability;

– Ensuring a basic standard of civil and political rights guarantees for active, free and meaningful participation, including freedom of information and freedom of association; and

– Identifying indicators and setting benchmarks so that the progressive realization of economic and social rights can clearly be monitored.

How does an ESCR approach help work on budget analysis? Human rights can be used to influence national budgets. The substantive content of human rights standards can

furnish guidance to policymakers and legislators in weighing competing demands on limited resources, helping to ensure, for example, that: – Primary education is free for all; – Budget allocations are prioritized towards the most marginalized or

discriminated against; – Provision is made for essential minimal levels for all rights; – There is progressive improvement in human rights realization; and – Particular rights are not deliberately realized at the cost of others (for

example, that health programmes are not compromised by a disproportionate focus on security or debt servicing).

Experience sharing

Do you already adopt an ESCR approach to your work? If so, what are the successes and challenges of this approach?

How could an ESCR approach help your work?

What would it mean to develop an ESCR approach to your work?

How are ESC rights monitored and enforced?

Different monitoring and enforcement bodies

Different monitoring and enforcement functions

Judicial and quasi-judical mechanisms at the international and national levels

The UN Human Rights SystemBodies created by

human rights treaties

Human Rights Committee

CESCR

CERD

CAT

CEDAW

CRC

CMW

UNSecretariat

/

Office HighCommissioner

for HumanRights

Bodies created by the UN charter

Security Council

General Assembly

Economic and Social Council (ECOSOC)

New Human RightsCouncil

Commission onHuman Rights

Bodies for monitoring and enforcing ESC rightsConvention / Treaty Based Bodies: Treaty Bodies: established under the major human

rights treaties to monitor the implementation of the treaties by state parties. – Committee on Economic, Social and Cultural Rights (CESCR)– Human Rights Committee (HRC) – Committee on the Elimination of Racial Discrimination (CERD)– Committee Against Torture (CAT)– Committee on the Rights of the Child (CRC)– Committee on the Elimination of Discrimination Against Women

(CEDAW)– Committee on Migrant Workers (CMW)

Bodies for monitoring and enforcing ESC rightsExtra-Conventional / Charter Based: Human Rights Council UN Special Procedures – country (Cambodia, DPRK, Myanmar) and

thematic mandates:– Special Rapporteur on the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health – Special Rapporteur on the right to adequate housing– Special Rapporteur on the right to education– Special Rapporteur on the right to food– Independent Expert on the question of human rights and extreme poverty– Independent expert on the effects of economic reform policies and

foreign debt on the full enjoyment of human rights, particularly economic, social and cultural rights

Functions of ESCR monitoring & enforcement bodiesUN Treaty Bodies: Comprised of 10 to 23 members (on average 18) who are independent experts of high

moral standing, competent in the relevant area of human rights and with acknowledged impartiality (CERD, CMW) who serve in their personal capacity. They are elected for 4 year terms, and Treaty Body membership is balanced on geographical basis.

Main procedures/functions:– Examination of State Party reports (initial and periodic);– Review in the absence of reports;– Individual complaints (HRC, CERD, CAT, CEDAW, CMW – not CESCR yet);– Inter-State complaints;– Interpretation of the treaty (General Comments);

Other procedures:– Inquiries;– Early warning and urgent action;– Follow-up.

Functions of ESCR monitoring & enforcement bodies

Human Rights Council: Universal Periodic Review

– Reviews all rights and all UN member states

Complaint Mechanism – allows NGOs to bring confidential claims about

consistent patterns of gross human rights violations

Functions of ESCR monitoring & enforcement bodiesUN Special Procedures: Groups of experts or individuals designated as special rapporteurs,

representatives or independent experts who report to the Human Rights Council or the Secretary-General (via the General Assembly)

Their functions are to examine, monitor and publicly report on human rights situations either in specific countries and territories (“country mechanisms or mandates”) or concerning a specific human rights problem (“thematic mechanisms or mandates”)

They can handle complaints and petitions through urgent appeals to Governments

Mandate for action comes from the Human Rights Council – not treaties (thus not bound to act only in relation to state parties but rather all UN member states)

NGO participation in monitoring and enforcement mechanisms NGOs can participate either formally or informally NGOs can participate in all aspects of the TBs work

– Reporting– General Comments– Complaints– General Discussions / Plenary– Inquiries– Early warning and urgent procedures– Treaty body reform

The participation of NGOs is sometimes subject to Guidelines established by the Committees

The role of NGOs is sometimes set out in the treaty itself The participation of NGOs in the TBs is established & supported by

longstanding practice ECOSOC Consultative Status is not usually required (sometimes need

accreditation to access meetings)

Experience sharing

Does anyone have experience in working with the special procedures?

Does anyone have experience in working with the Treaty Bodies?

The example of the RRN shadow/parallel report to CESCR

NGOs and Treaty Body reportingNGOs can: Contribute civil society reports, shadow reports, parallel

reports Present an alternative view

– Highlight gaps – Can take different forms:

• Long documents “shadowing” the content of the State’s report• Short comments addressing 1 right• Simple letters expressing a point of view on certain issues

Besides shadow reports, NGOs can submit any kind of relevant information: thematic reports, press clippings, NGO newsletter, video tapes, reports, academic publications, studies, etc.

ESCR approaches and advocacy strategiesAt the national level these could include: Litigation – enforcing and advocating for ESC rights through the

legal system Capacity building – providing information, education, and

training on ESC rights and mechanisms for providing redress for ESC rights violations (or potential violations)

Law reform – ensuring international human rights obligations are incorporated in national laws, and are domestically justiciable

Service delivery in an ESCR framework Media work – drawing attention to poverty, budget & other

issues from the perspective of legal obligations, not just moral duties

ESCR approaches and advocacy strategiesAt the international level these could include: Providing information to Treaty Bodies (including NGO

reports) Submitting cases to Treaty Bodies on behalf of victims Providing information to Special Rapporteurs Submitting urgent appeals to Special Rapporteurs Inputting to special procedures and treaty bodies on their

work on thematic issues (i.e. drafting of their annual reports, general comments, drafting new guidelines or other legal instruments)

Advocating for improvements to the system (e.g. OP-ICESCR)

Experience sharing

Ideas for using international mechanisms and national advocacy to promote concerns from an ESC rights perspective

Questions on the issues discussed?

Further information sources OHCHR Treaty Body Database:

http://www.ohchr.org/english/bodies/treaty/index.htm Universal Human Rights Index: http://www.universalhumanrightsindex.org

OHCHR Fact Sheet No. 30, The United Nations Human Rights Treaty System: http://www.ohchr.org/english/about/publications/docs/fs30.pdf

OHCHR Fact Sheet No. 27, Seventeen Frequently Asked Questions about United Nations Special Rapporteurs: http://www.ohchr.org/english/about/publications/docs/factsheet27.pdf

Submitting NGO reports to Treaty Bodies:– See guides written by FIAN (www.fian.org) , IWRAW, others

OHCHR and UNDP, Lessons Learned From Rights-Based Approaches in the Asia-Pacific Region, 2005: http://www.un.or.th/ohchr/SR/Regional_Office/forums/llp_regional_consultation/

LLP_Documentation_of_case_studies.pdf

Workshop tasksTaking an example ‘practice’: Identify the ESC rights affected:

– What rights are being violated, how and why? Identify the rights-holders:

– Whose rights are being violated? Why are they excluded? Identify the duty-bearers:

– Who should do what to respect, protect and fulfil ESC rights? What should they do? Identify what advocacy strategies could be adopted to address the issues from an

ESCR perspective:– At the international level?

• Which mechanisms could you use? To do what? When? How?• If you were to make a complaint, outline what you would ask for and how you would present

your case from an ESCR perspective?• If you were to report to a Treaty Body, outline what you would report on and what

recommendations you would ask the treaty body to make?

– At the national level?

Conclusion: ESC rights approach

Key factors for success

Challenges & obstacles

Lessons learned

Contact details

If you have any questions, please don’t hesitate to contact me at:

mahon4@hei.unige.ch