SECTION II HISTORY AND OVERVIEW OF ESC RIGHTS
Module 2 - Continued
PostWorld War II Developments
Immediately following World War II, there was great concern to develop a new, stronger international organizationthe United Nationsin which the principles of human rights would play a major role. The reasons were many. One was the momentum that had been growing over the prior decades for the institution of an international order that would protect the full range of rightscivil and political, as well as those rights that would address the widespread suffering that workers and the unemployed had endured during the depression. In addition, the war had broken out because of actions of Nazi and fascist regimes in Europe. Government leaders believed that the creation of effective mechanisms to guarantee human rights would help prevent the development of such regimes in the future.
These ideas are well expressed in the preamble to the Universal Declaration of Human Rights (UDHR) of 1948 which states that disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind and that the recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.
The United Nations Charter
The immediate impact of this emerging concern for human rights was the inclusion in the United Nations Charter, which was drafted and adopted at the San Francisco Conference of 1945, of references to the promotion and protection of human rights. Article 1 of the Charter provides, most notably, that one of the purposes of the United Nations is
Obligations assumed in furtherance of this aim are spelled out by articles 55 and 56 of the Charter. These articles indicate that states must take joint and separate action in cooperation with the United Nations to promote
Important as they are, these provisions clearly provided only a very tentative, initial step towards the institution of a universal system of human rights protection. No indication was given in the Charter as to the content of these human rights and fundamental freedoms nor as to the type of action required for their protection and promotion. These provisions had, and indeed continue to have, a largely symbolic value. They signaled simply that human rights would form a continuing arena for action on the part of the United Nations. The task of spelling out the substance of those human rights and creating mechanisms to protect them was to be taken up by various United Nations organs (and regional organizations) in subsequent years.
The Universal Declaration of Human Rights
The first major initiative taken by the United Nations after its formation was the creation of a Commission on Human Rights. The commission itself was charged with the drafting of an International Bill of Rights, which was intended to form the cornerstone of the new constitutional order. On being assigned the task, the commission decided that its efforts should be directed first and foremost towards the drafting of a declaration of human rights, which would be followed at a later stage by the drafting of a treaty or convention, and a document outlining methods of implementation. The Commission drafted what was to become known as the Universal Declaration of Human Rights relatively quickly, and its draft was finally adopted by the General Assembly on 10 December 1948.
The Universal Declaration includes in its provisions a relatively full range of rights, among them not only the classical civil and political rights but also a number of economic, social and cultural (ESC) rights. In articles 22-27, for example, it declares among other things that everyone has the right to social security, the right to work, the right to rest and leisure, the right to an adequate standard of living, the right to education and the right to freely participate in the cultural life of the community. These articles essentially set out the range of concerns that have since been brought within the compass of human rights law.
While the inclusion of a number of ESC rights within the Universal Declaration was undoubtedly radical, the Declaration was clearly not intended to be an instrument to which states formally bound themselves as a matter of law. Rather, it was regarded by the commission as a common standard of achievement to which states would aspire (to employ the phrase used in the preamble) and for that reason was adopted simply by a majority vote within the General Assembly.17 The legal status of the Declaration today is not entirely clear. While some have argued that the Declaration reflects, in its entirety, norms of customary international law, this would seem rather optimistic. However, even if only parts, at present, reflect customary law, it does remain an important instrument not least in so far as it sets out the basic arena of human rights activity.
The International Bill of Human Rights
As was its original intention, after drafting the Universal Declaration, the Commission on Human Rights set about drafting an international human rights treaty. This project was to be more difficult than first imagined. By the time the commission began to deliberate on the matter, relations between East and West had begun to deteriorate. Over the next few decades many of the organs of the United Nations became blighted by political wrangling between the socialist states on the one hand and the Western bloc on the other, and the Commission of Human Rights was no exception. The dispute between these two political blocs as regards human rights manifested itself in differences over the priority of certain categories of human rights and their method of implementation. The socialist states championed the cause of ESC rights, which they associated with the aims of a socialist society. They also believed that implementation of rights had to be undertaken by political organs, rather than by judicial organs, which were the preference of the West. Western states asserted the priority of civil and political rights, which they viewed as integral to the foundation of liberty and democracy, and argued strongly for the creation of a committee or court of human rights that would oversee implementation.
The result of this cold-war polarization was effectively to prevent the adoption of a single all-embracing treaty. The proposed treaty was divided into two partsone dealing with civil and political rights, the other with economic, social and cultural rightsand each part was drafted as a separate treaty. The dispute also considerably prolonged the drafting process, which continued until 1966. The adoption of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1966, however, completed the work of the United Nations on what is called the International Bill of Human Rights.
The main difference between the two covenants as they were adopted, apart from the obvious difference of subject matter, is that the ICCPR specifically envisaged the creation of a Human Rights Committee composed of independent experts charged with the responsibility for overseeing implementation by a system of petitions, among other means.18 The ICESCR, however, was to be implemented by the Economic and Social Councila political organ of the United Nationswhich would oversee a reporting procedure.19 As we shall see below, the latter arrangement proved to be something of a hindrance for the development of the ICESCR, which was only overcome when a Committee on Economic, Social and Cultural Rights was created in 1986.
Other Human Rights Treaties
The adoption of the International Bill of Human Rights did not end the work of the United Nations in setting standards for human rights. Indeed, by 1966 the UN had already adopted two other relevant instruments. The Genocide Convention was drafted in 1948, and had entered into force in 1951,20 and the Convention on the Elimination of All Forms of Racial Discrimination was adopted in 1965.21 Over the next few decades, various organs of the United Nations continued the process of drafting international human rights treaties leading to the adoption of, among others, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1979,22 the Convention Against Torture in 1984,23 and the Convention on the Rights of the Child (CRC) in 1989.24 Each of these treaties supplements and enhances the basic guarantee enunciated in the two Covenants and deals with a specific category of problems or class of persons. With the exception of the Torture Convention, all include several provisions dealing specifically with ESC rights. (See Modules 4 and 5 for further discussion of CEDAW and CRC.)
Apart from the universal instruments drafted by the United Nations, a number of human rights instruments have been drafted by UN specialized agencies such as the ILO, UNESCO and others. In addition, regional organizations, which in some parts of the world form the main focus of human rights work, have developed their own standards. In fact, the first regional instrument to be drafted, the American Declaration of the Rights and Duties of Man,25 was adopted before the Universal Declaration. The three best-known regional instruments are the European Convention for Human Rights,26 the American Convention on Human Rights27 and the African Charter on Human and Peoples Rights.28 Apart from the African Charter, these do not deal in any comprehensive way with ESC rights. In the European context, there is a separate instrumentthe European Social Charter29that deals with such rights. In the Americas, the Additional Protocol to the American Convention dealing with ESC rights30 provides for a system of petitions in relation to a number of rights, but it has yet to be adopted. (See Section X for more on regional treaties and enforcement mechanisms.)
The development of human rights norms has also had an impact on national constitutions. Most postcolonial states that emerged in the 1950s and 1960s incorporated some elements of the Universal Declaration of Human Rights into their constitutions. However, for the most part, civil and political rights were incorporated as fundamental rights, while economic and social rights were classified as matters coming under state policy.
This divide is gradually narrowing, with some countries incorporating both sets of rights within the fundamental rights provisions of their constitutions. The 1987 Constitution of the Philippines includes a provision in article 13 on social justice and human rights. In its definition of social justice, article 13 focuses on economic and social rights: full protection is to be accorded to labor; just distribution of all agricultural lands is to be promoted; the rights of farmers and fisherfolk are to be respected; and a program of urban land reform and housing is to be established, as is a system of health care. The Philippine Constitution specifically recognizes the role of independent, peoples organizations in enabling the people to pursue and protect their legitimate and collective interests and aspirations through peaceful and lawful means.
The constitution that is the most remarkable in its incorporation of ESC rights is the one adopted by South Africa in 1996. Chapter 2 of the South African Constitution guarantees fundamental rights to every citizen. These fundamental rights in addition to traditional civil and political rights include several ESC rights:
Ensuring the recognition of ESC rights in national constitutions is part of the struggle to advance these rights. The South African Constitution is an encouraging sign of what is possible.
At the same time, the history
of the emergence of human rights shows that
legal recognition of a right is only a first
step. Various obstacles, particularly related
to local and/or national customs, practices
or culture, may continue to obstruct the full
enjoyment and protection of a right that has
been legally protected. Legal prohibitions
of racial discrimination in the United States,
for example, have not succeeded in eliminating
the practice. In most countries women have,
in practice, not been in a position to enjoy
specific rights (for example, equal pay for
equal work) recognized at the national and international
levels. It is thus essential for activists
to know not simply the international and national
legal and constitutional status of human rights,
but to understand the extent to which human
rightsparticularly the rights of vulnerable
groups, such as women and childrenare
protected in practice.
Legal Obligations Assumed by States under International Human Rights Law
Treaties are essentially contractual in nature, and therefore it is necessary for states to consent to be bound in order for them to be legally responsible for fulfilling the obligations. Since much of international human rights law concerns the implementation of treaties, the general principle is that only those states that are party to the treaty concerned are bound by the human rights obligations in question. That being said, it is clear that simply because a state does not ratify a human rights treaty does not mean that it can evade all responsibility for its actions under international law. To begin with, states clearly have a moral obligation to comply with certain basic human rights standards, which they may ignore only at the risk of universal condemnation. This in itself is reinforced in two ways. First, the existence of universal obligations to protect human rights is evident in the fact that some human rights are now regarded as forming part of customary international law. The prohibition against torture, for example, is an obligation that devolves upon states irrespective of whether they have signed or ratified a relevant treaty. The same may be said of genocide and forced disappearances. This is not to say that treaties are unimportantindeed they provide much-needed mechanisms of enforcementbut simply that the obligation to protect and promote human rights is an obligation incumbent upon all governments and states whether or not they have officially agreed to treaty obligations.
The obligatory nature of human rights protection and promotion is reinforced further by the terms of the UN Charter that apply to all member states (and therefore the vast majority of states in the world today). Although the term human rights and fundamental freedoms is not spelled out, this does not excuse states when they indulge in practices that are unconscionable or that offend basic standards of humanity. United Nations actions against Southern Rhodesia, South Africa and Iraq, for example, have in the past been justified by reference to the human rights provisions in the Charter. It is envisaged that the United Nations will continue to insist upon certain basic standards being adhered to by its members.
Fundamental Principles of Human Rights
Inherent dignity of human beings: According to the Universal Declaration, human rights derive from the inherent dignity . . . of all members of the human family. Thus, although human rights might be formalized in treaties, declarations and bills, their origin and justification is essentially pre- or extra legal. Human rights, in other words, are not the creation of law or of legislators, and they do not exist simply because governments or states say as much. Rather, they are a moral entitlement that derives from our membership in the human family and represents a standard against which law may be tested.
Equality and non-discrimination: It follows from this first principle that human rights, by virtue of their very nature, are possessed by all in equal measure. Whatever our social, economic, cultural or political status, whatever the conditions in which we live, we are, in principle at least, entitled to the same basic rights and freedoms. The idea of equality and nondiscrimination is a fundamental, underlying principle of human rights. As article 2 of the Universal Declaration states:
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, birth or other status.
Indivisibility and interdependence of human rights: The process of standard-setting within the United Nations was infected by the ideological battle between East and West. This ideological separation, which became concretized in the drafting of the two separate treaties, has contributed to an enduring perception that the two categories of rights are necessarily distinct and even conflicting. In recent years, however, a more nuanced understanding of human rights has been growing in acceptance, one which holds firm to the idea that all human rights are indivisible, interrelated and interdependent. The idea finds its expression in several different ways.
It has come to be recognized that the prioritization of civil and political rights cannot be justified in cases where individuals live in poverty and degradation. In such cases, action taken to promote decent standards of health, hygiene and housing are clearly more important for the individual concerned than any claim to freedom. Secondly, it has been increasingly acknowledged that the two sets of rights are integrally related. Proper education is necessary for the full enjoyment of freedom of expression, and by the same token, protection of civil and political rights is more likely to contribute to the creation of a society in which the ESC rights of the population will be met than otherwise. Finally, the idea of interdependence is reinforced in a formal sense by the fact that the division between the categories of rights is itself imperfect. Article 27 of the ICCPR, for example, protects the rights of persons belonging to ethnic, religious or linguistic minorities to enjoy their own culture, to profess and practise their own religion, or to use their own language. Similarly, article 22 of the same treaty protects the right to form and join trade unions, a right that is recognized in the same terms in article 8 of the ICESCR.
The Contemporary Context
Rights have emerged as a result of peoples struggles in various historical periods. These struggles did not take place in a vacuum. Gains that were made and defeats that were suffered occurred in the context of and in large part resulting from the specific economic, political and social conditions prevailing at the time. In order to be effective, it is essential for todays activists to understand the contexts within which rights historically achieved recognition. They must also understand the contemporary economic, political and social contexts within which they themselves act.
Human rights achieved formal recognition within the historical context of the nation-state. Civil and political rights have long been perceived as an essential buffer protecting the individual from the abusive exercise of state power. The states responsibility to protect econo-mic and social rights has been based on the assumptions that the state, through its taxing authority, has far greater resources than do individuals, and that through those resources the state has the ability to ensure that all those living within its ambit enjoy a certain level of social and economic security.
The economic, political and social context within which human rights have historically been recognized has been undergoing enormous changes in the past couple of decades. These changes, in turn, have had and will have profound implications for efforts to protect and promote ESC rights.
These changes have been the result of a process that has been termed globalization. Globalization rests on the assumptions that the free market is the best arbiter of the efficient use of resources and that the state is a cumbersome economic actor, whose intervention in the market causes wasteful distortions. The conclusion to be drawn from these assumptions is that the market should be given free rein and the states role in the economy minimized. Proponents of globalization maintain that if these steps are carried out, resources will be used to maximum efficiencyand the largest number of people will benefit from their use. The accent thus is on linking domestic capital with international capital, according to the logic that by such links weak economies can benefit from the flow inward of capital, technology and management techniques. The term globalization reflects these global connections.
The principal actors involved in the process of globalization are discussed in greater detail further on in the manual (see, for example, Section IX). However, some of the implications of globalization should be mentioned here, since they touch directly on a range of ESC rights issues addressed in various other upcoming modules.
Flowing from the belief in the inefficiency of the state, there has been an increasing push towards privatizationthe devolution of state assets and responsibilities onto private actors. State lands have been sold to private individuals and corporations; state enterprises (e.g., utilities), resources (e.g., oil, coal), services (e.g., transportation) and functions (e.g., prisons, social welfare services) have been turned over to the private sector. Mechanisms, processes, laws and regulations that had been established to allow for democratic control over these properties and functions have been dismantled or significantly curtailed, so that central aspects of the lives of individuals and communities are far more subject to the whim of private actors over which they have no legal control than they were before.
Various groups of individuals and institutions have benefited from globalization. Globalization, for example, has encouraged a freer flow of information among states, and everyone has, in general terms, gained from this. However, the overall benefits of the trend towards globalization have accrued principally to large, transnational enterprisescorporations and bankswhich can more easily move capital and investments in and out of countries to take advantage of cheaper wages and more favorable economic conditions. A growing number of these enterprises now command far greater economic and political power than do many states. They are responsible first and foremost to their shareholders. Unlike elected governments, they have no inherent responsibility to the millions of people for whose lives their decisions to invest or disinvest have huge implications. The latter have virtually no control over them.
The implications of these changes for ESC rights activism are enormous. International human rights law and most national human rights protections are directed to the state; it is, in general, the state, not private actors, that is legally responsible for protecting and promoting human rights. In such a context, what does a community do when the land on which it has historically relied is sold by the state to a private owner? Where can workers turn when the company for which they work provides wages far below those needed for a decent standard of living? What happens to the future of children who cannot afford the fees charged by privatized education systems? As the state is whittled away, to whom does the individual turn for protection against the impact of the actions and decisions of private actors whose decisions may be made thousands of miles away? How is it possible for a weakened state to hold to account an enterprise that has greater financial resources than it does itself and that can withdraw its investments on a relative whim? These and numerous other questions arising from the sweeping changes wrought by globalization are posed directly and indirectly in the modules that follow.
Author: This module is based on a paper prepared by Matthew Craven.
17. The voting was 48 to 0, with 8 abstentions (Byelorussia, Czechoslovakia, Poland, USSR, Saudi Arabia, Ukraine, South Africa and Yugoslavia).
18. International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 52, Arts. 28-45, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force 23 Mar. 1976.
19. International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, GA Res. 2200 (XXI), 21 UN GAOR Supp. (No. 16) at 49, Arts. 16-25, UN Doc. A/6316 (1966), 993 UNTS 3, entered into force 3 Jan. 1976.
20. Convention on the Prevention and Punishment of the Crime of Genocide, adopted 9 Dec. 1948, 78 UNTS 277, entered into force 12 Jan. 1951.
21. Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660 UNTS 195, entered into force 4 Jan. 1969.
22. Convention on the Elimination of All Forms of Discrimination against Women, adopted 18 Dec. 1979, GA Res. 34/180, 34 UN GAOR Supp. (No. 46), UN Doc. A/34/46 (1980), 1249 UNTS 13, entered into force 3 Sept. 1981, reprinted in 19 ILM 33 (1980).
23. Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, GA Res. 39/46, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1985), entered into force 26 June 1987.
24. Convention on the Rights of the Child, adopted 20 Nov. 1989, GA Res. 44/25, 44 UN GAOR Supp. (No. 49) at 165, UN Doc. A/44/736 (1989), reprinted in 28 ILM 1448 (1989).
25. American Declaration of the Rights and Duties of Man, signed 2 May 1948, OAS Off. Rec. OEA/Ser.L/V/II.23, Doc. 21, Rev. 6 (English 1979).
26. European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, EurTS No. 5, 213 UNTS 221, entered into force 3 Sept. 1953.
27. American Convention on Human Rights, opened for signature 22 Nov. 1969, OASTS No. 36, reprinted in 9 ILM 673 (1970), entered into force 18 July 1978.
28. African Charter on Human and Peoples Rights, adopted 27 June 1981, OAU Doc. CAB/LEG/67/3/Rev. 5, reprinted in 21 ILM 58 (1981), entered into force 21 Oct. 1986.
29. European Social Charter, 529 UNTS 89, entered into force 26 Feb. 1965.
30. Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, OASTS No. 69 (1988), signed 17 Nov. 1988, reprinted in Basic Documents pertaining to Human Rights in the Inter-American System, OEA/Ser.L/V/II.82, Doc. 6, Rev. 1 at 67 (1992).
31. Vito Tanzi, Working Paper of the International Monetary Fund, WP/00/12 (January 2000),