As a result of the relative inattention paid to ESC rights over the past several decades,13 activists will find themselves more involved in the process of defining the content of the rights than they generally are in civil and political rights cases or situations. While representing a client or investigating a case, for instance, activists and organizations may often have to undertake research to arrive at a fuller elaboration and deeper understanding of specific standards in order to argue the application of the standards to the specific case. The arguments, in turn, may serve as the basis for a court to make a decision that lends greater precision to the parameters and dimensions of the specific right. This can be a difficult, complex and drawn-out process, but is essential for the development of more precise understandings of the content of ESC rights at the national and international levels.
The building block essential for understanding and defining the content of the rights is study of international standards and documents, national constitutions, as well as interpretations and analyses of these documents. While organizations just entering the field will likely have to devote considerable time to tracking down such documents -- to date, there is not a centralized place where such information has been collected14 -- this is a necessary component of ESC rights work.
In learning about international ESC rights standards, there are some concepts with which activists should be familiar, specifically: core content and minimum core content, state obligation and human rights indicators. These are terms which are widely used, even though there does not yet seem to be a standard use of them. A particularly challenging aspect of ESC activism is developing and maintaining clarity about these terms and communicating this clear understanding to other NGOs, governments, and intergovernmental agencies and bodies. Activists should bear in mind that the concepts are evolving.
The core content of a human right refers to the entitlements which make up the right. The core content of an ESC right has both "universal" and "unique" characteristics. The universal characteristics are those which apply to all rights. Non-discrimination is one such "universal" characteristic: no individual may be denied the exercise of any of his or her human rights on the basis of his/her race color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition to "universal" characteristics, certain character-istics of the core content of each ESC right are unique to the specific right. For example, access "to immunization against preventable epidemic or endemic diseases" is a key component of the core content of the right to health,15 but is not applicable to other rights.
A related concept is that of minimum core content. This has been described as the non- negotiable foundation of a right to which all individuals, in all contexts, and under all circumstances are entitled. The minimum core content implies a "floor" below which no government can go regardless of the economic situation in a country (see "state obligation," below). For example, if you are discussing the right to housing, one element of the core content would be legal security of tenure.16 Housing rights advocates maintain that the minimum core content would provide that no one can be legally evicted from his or her home without due process of law and adequate compensation. This should be guaranteed to all citizens regardless of the existence of, for example, an economic downturn or crisis in a country.
It is helpful to remember that the concepts of core content and minimum core content are not unique to ESC rights.17 An example of minimum core content in the area of civil and political rights can be found in the right to freedom from arbitrary detention. One element of the core content of this right is that a warrant for a person's arrest must be obtained by the state and presented to the individual. Another element of the core content is that an individual who is detained cannot be held for an indefinite period of time. In the case of a declared national emergency in which constitutional guarantees are suspended, an individual may be detained without an arrest warrant. However, even in this situation, s/he cannot be held indefinitely. Since the requirement of an arrest warrant can be suspended, this element would not be considered part of the minimum core content of the right to freedom from arbitrary detention. Since, however, s/he cannot be detained indefinitely, even under a state of emergency, that guarantee would be an element of the minimum core content.
The idea of a minimum core content has been challenged out of concern that using the word "minimum" limits the full guarantee of rights by setting a low standard for governments to meet. However, in Health as a Right, Provea has written:
The minimum core content, therefore, is not the same as the core content of a right.
In addition to the core and minimum core content of individual entitlements, each human right carries corresponding state obligations. When states ratify international covenants and treaties, they commit themselves to abide by and fulfill the state duties required in the agreement. ESC rights advocates assert that states' obligations comprise the duties to promote, respect, fulfill and protect each right. In the same way that the core content of ESC rights is not yet fully elaborated, considerable work remains to be done to elucidate the nature and extent of state obligations with regard to each right.19 (See box, Defining the Content of Rights, p. 23.)
There is a lot of discussion and confusion about human rights indicators. It is not a term that is commonly used in legal fields and in civil and political right work, although for those who come to ESC rights work from such fields as public policy, sociology or health research, the term will not be new. Generally speaking, an indicator is a tool which shows the direction of something or which serves as a sign or symptom. There are many indicators which are already used by various intergovernmental agencies, such as the World Health Organization and the United Nations Development Program, to measure the status of economic and social conditions within countries. These indicators, however, are not exhaustive, nor are they necessarily linked to human rights concepts.20
For our purposes, therefore, we will specify that a human rights indicator is the particular concept used to monitor and evaluate an aspect of a human right.21 For example, related to the provisions of article 12.2.a of the ICESCR,22 one human rights indicator used to measure the enjoyment of the right to health would be the under-five mortality rate. Another indicator related to this article would be the mortality rate due to diseases preventable by vaccination.23
It may be helpful to understand that there are two types of human rights indicators which correspond respectively to the core content of a right and the corresponding state obligations. An outcome indicator refers to the status of individual rights. The examples given above (the under- five mortality rate and the rate of mortality due to preventable disease) are both outcome indicators. A process indicator refers to the status of the state's compliance with its rights obligations. A process indicator related to the same Article 12.2.a would be the implementation by the state on universal immunization of children under one year of age against the main childhood diseases.24 The related data which is collected -- for example, the actual number of babies who have died in a given time period, or the number of clinics providing immunization -- provides information about the indicator.
It is also important that both quantitative and qualitative indicators be developed to assess the state's performance. Quantitative indicators are measured by numerical data. Qualitative indicators examine the quality of the enjoyment of a right or the government's fulfillment of it. For example, qualitative indicators might examine the ways in which the community was involved in the development of a policy or the receptiveness of the court to hearing ESC rights arguments.
Activists and NGOs are developing their understanding and promotion of the content of specific ESC rights in various ways. Focused study and discussion, a case approach, and a "violations approach" are three strategies that workshop participants described for elaborating the core content of ESC rights.
One approach adopted by some groups is deeper study and discussion. Provea,25 for example, has undertaken the ambitious and invaluable task of developing conceptual frameworks for specific ESC rights. It decided to concentrate on the development of frameworks because, it believes, it is difficult to identify a human rights issue or human rights violation until the work of defining and analyzing the standards has been done. Provea chose to focus on those rights which are of particular concern within Venezuela and for which less clear standards currently exist.26 To date it has completed Health as a Right and has also been working, to varying degrees, on frameworks for the rights to food, social security, and land rights.
Provea's work has been multi-pronged. For instance, on the right to health, Provea studied the international human rights instruments which pertain to health and the Venezuelan Constitution, sought information and analyses collated by other agencies and organizations on the core content of the right to health, gathered information about international and national health policies as well as Venezuelan legislation related to health, started a database of organizations working on health issues, and began to develop health rights indicators. Each year it works to elaborate specific rights and publishes its conceptualizations in the organization's annual report. It has used these frameworks for its general activities, such as lobbying, human rights education, case work, etc.
FLAG has also initiated its work on ESC rights by elaborating the framework for rights. It shares Provea's view that it is difficult to take on cases as rights cases until the rights are defined and elaborated. Currently, FLAG does take individual cases on economic and social issues related, for example, to demolition of houses or anti-squatting actions, but not as rights cases. FLAG has established task forces on the rights to housing, education, health and food 27 to begin the work of identifying the content and state obligations of these rights and corresponding indicators. After the task forces have completed their work, FLAG plans to concentrate on identifying ways that these rights can be enforced and pursued through legal means.
Individual cases can be used to elucidate the content of ESC rights in many ways. The tactics that organizations choose depend to a large extent on their degree of clarity as to the content of the rights, as well as the availability of judicial remedies and the effectiveness of the legal systems within which they operate. It is not easy to define precisely and fully the ways that a case approach can be employed because the content and methods are evolving. However, two general ways of using this approach are described in the following:
To the extent that an organization has elaborated the core content of a specific right, it can take a case and argue that the government has violated a right based on its understanding of the right. The group may manage to convince the court to acknowledge and confirm a given aspect of the core content and/or state obligations of the right. For example, a group working on housing rights may have come to the conclusion that, with regard to evictions, due process of law and adequate compensation are characteristics of the core content of the right to housing. The group, therefore, would take a case to court to seek redress for a community or family which has been arbitrarily evicted and, in so doing, ask the court to confirm that due process and compensation are aspects of the right to housing.
On the other hand, it is likely that a group may not have so fully elaborated its understanding of the core content. The group may, however, believe that another right can be used to ask the court to set boundaries on the conduct of the government with respect to specific ESC issues. A legal brief may cite international provisions related to participation (as discussed, above) and seek a ruling that the government has violated a community's ESC rights because it did not involve it in the design and implementation of a project having significant impact on economic and social conditions in the community. Although this claim may not help to establish other specific dimensions of the right to land, food, housing or health entitlements, it would help to establish that in the implementation of any project affecting these rights, individuals who will be affected by the project must be involved in the process of establishing the need for a project, designing it and evaluating its implementation.
Monitoring complaints and legal cases can also be a way to identify patterns from which it may be inferred that a government policy exists which violates a right, or conversely, that the absence of a policy violates a right. Legal aid programs, social service and development projects are prime foci for this approach. Through comparison and analysis of the issues and claims members of the community bring to such organizations, practitioners can identify patterns of abuse and understand the relationship of state actors to the problem and issue at hand. For instance, a given legal aid program may note an increase in the incidence of clients seeking redress for evictions from their homes. It may perceive patterns related to how or where clients have been evicted which, in turn, may point to a lack of a government policy or protection of the right to housing. The pursuit and analysis of individual cases therefore can be a means for identifying aspects of the core content of rights which need to be more fully examined and elaborated.
Another approach organizations have used is what some workshop participants referred to as the "violations approach" but, given a narrower use of the term "violation", would perhaps be better described as an emphasis on collecting information about and monitoring egregious and blatant governmental actions.28 The appeal of a "violations approach" arises largely from the fact that ESC rights to date are not very well elaborated and thus there is little understanding of what constitutes a violation. If organizations and activists start by focusing on the worst possible situations, it should be easier to get public or legal acknowledgment that the situation involves a "violation". Such an acknowledgment begins to give some broad shape to the right and helps to build international acknowledgment of ESC rights.
A critique to this approach asserts that its focus on blatant actions, such as mass demolitions of homes or forced displacement, de-emphasizes other less obvious actions or lack of action by a government which may involve serious human rights violations. It may also hinder the development of a more complex understanding of what constitutes an ESC rights violation.
Where the core content of a specific right has not been determined, other human rights standards and provisions may be used to seek the realization of ESC rights. Workshop participants discussed the use of guarantees related to participation and non-discrimination as well as the requirement of progressive realization of ESC rights (Article 2 of the ICESCR) as possible tools.
In cases where the government has apparently acted in a discriminatory manner, or condoned discriminatory actions, in economic, social and cultural spheres, activists may be able to base an ESC rights claim on the principle of non-discrimination even when the specific entitlements of a right are not clearly established. For example, the Galilee Society29 took a case to the International Water Tribunal claiming that Israel was deliberately not connecting "unrecognized villages" to the national drinking water network, to which neighboring Jewish communities had access, as part of its Planning and Building Law. The Galilee Society was able to demonstrate that an outbreak of hepatitis in the Arab communities was a result of inadequate water and sanitation, and thus argued that Israel's denial of water was a violation of the villagers' right to health. Although the precise nature of a government's obligations to provide adequate water and sanitation has not been determined30 , this right to health claim was successful based on its ability to convince the jury that the non-recognition of the Arab villages and denial of water to them was unjustifiable.
The Caribbean Initiative on Equality and Non-Discrimination, uses international standards which have been developed for "vulnerable sectors"-- groups which experience wide-scale discrimination, such as children, women and indigenous populations.31 The international standards pertaining to these populations32 include provisions for equality and non-discrimination and were developed primarily because it was recognized that wide-scale, and historical discrimination against these groups merit particular protection.
Communities can and should be involved with the formulation and implementation of policies, programs, budgets, legislation and other activities relating to their rights, because there is a greater likelihood that these will be more effective in meeting the community's needs if designed and implemented with its involvement. First and foremost, however, communities should be involved because participation is a human right. Article 25.a of the International Covenant on Civil and Political Rights (ICCPR) states:
While the right to participation is included in the ICCPR, it is clearly connected to all human rights, and is specifically applicable to ESC rights.33 Paragraph 11 of the Limburg Principles states:
Thus communities can claim their right to participate in the discussions and decision-making on governmental policies and plans in economic, social and cultural spheres.34
In a situation where the core content of a right has not been determined, it may be possible for a rights claim to be made in court, through an administrative channel or other judicial or quasi-judicial fora based on the argument that the right to participation has been violated. For example, a group may argue that the design and implementation of a large-scale development project such as a hydroelectric dam -- which would involve relocation of communities and affect their access to land, water and other resources -- did not involve the communities which would be most immediately and directly affected by it. In this way, the core content of the specific rights (for example, the rights to land, food, housing, health) would not be elaborated, but the rights could be promoted through a ruling which would require the participation of the community.
True and effective participation depends upon the level to which communities and those involved in a process are aware and informed about issues, problems and potential solutions. Access to timely and accurate information on the availability and distribution of resources, potential plans and policies, as well as decision-making processes is, therefore, a prerequisite for participation. Recognition of the human right to access to information is found in Article 19 of the ICCPR.
A community-based organization in India points out that, although Article 19 has generally been embraced by intellectual and political elites because of its relationship to freedom of expression, its provisions for access to information can and ought to be used to protect the rights of the poor and dispossessed to participate in public processes which affect their lives.
Thus, freedom of information is closely tied to Article 25 of the ICCPR on participation. 36
In the recent process of drafting and adopting the new South African Constitution, the Legal Resources Centre37 lobbied for the inclusion of provisions on access to information, recognizing the critical role that such access will play in the ability of citizens to take part in the conduct of economic, social, civil, political and cultural affairs. Though only a few organizations seem to have significant experience in advocating for access to information, the right to participation, specifically in the formulation of policies and legislation related to ESC rights, is dependent to a large extent on securing the right to information on matters affecting public affairs.
Provisions for the progressive realization of ESC rights found in Article 2 of the International Covenant on Economic, Social and Cultural Rights may be used as a tool for advancing the protection and promotion of ESC rights even where the core content of the rights has not yet been fully clarified38. Article 2.1 states:
The phrase "to the maximum of available resources" allows for a difference among countries in the nature and extent of ESC policies, programs and services. The Limburg Principles state that "the economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures." The Limburg Principles go on to explain that the "obligation of progressive realization exists independently of the increase in resources" and therefore applies in all countries, regardless of the level of economic development. 39
The differences in economic and political systems and available resources among countries poses a challenge to establishing ESC standards which can be internationally recognized. One way that the Committee on Economic Social and Cultural Rights has approached this challenge is by adopting a method for assessing the periodic reports states parties to the Covenant are required to submit. The CESCR uses the information on the policies, legislation, programs and services a government details in its initial report to the Committee to help establish a baseline by which to assess the progressive realization of the rights as reported in subsequent periodic reports. The Committee urges state parties to describe goals and specific "bench-marks" for the policies they detail in their reports to help assess its performance related to these policies in subsequent reports. 40
By monitoring the status of legislation and policies designed to meet the economic and social needs of a country's populations, activists may be able to identify and demonstrate cases where the repeal of legislation or cutting a budget related to social programs would be a regressive act. Such acts or omissions may be considered a violation of the state's ossbligation to progressively implement measures for the fulfillment of ESC rights.
13. See Appendix B for a list of relevant UN documents and partial collation of standards.
15. Paragraph 8.a of General Comments No. 4, "The Right to Adequate Housing (Art. 11.1 of the Covenant)," adopted by the Committee on Economic, Social and Cultural Rights on 12 December 1991 (UN Doc. E/C.12/1991/4) states:
See also Centre on Housing Rights and Evictions, Legal Provisions on Housing Rights: International and National Approaches, Utrecht, 1994.
16. Workshop participants reminded the group that an equally difficult process of clarifying the core content and minimum core content occurred in the elaboration of civil and political rights. For example, "The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights," printed in Human Rights Quarterly, Volume 7, Number 1, Johns Hopkins University Press, Baltimore, February 1985, were developed by a group of experts in international law to clarify states' obligations related to what is here being called the "minimum core content" of civil and political rights. A similar process was followed in the development of the "Limburg Principles on the Implementation of the Covenant on Economic, Social and Cultural Rights", printed in Human Rights Quarterly, Volume 9, Number 2, Johns Hopkins University Press, Baltimore, 1987.
18. See Section III of Centre on Housing Rights and Evictions, Legal Provisions on Housing Rights: National and International Approaches, Utrecht, 1994, and Section V of Provea, Health as a Right, Caracas, 1996.
19. The Manual for Human Rights Reporting, edited by the U.N. Centre for Human Rights and the U.N. Institute for Training and Research (HR/Pub./1991/1) lists requirements for official government reports to intergovernmental human rights treaty bodies. In developing human rights indicators, organizations may find that the type of information required by various bodies is a good starting point for developing indicators.
21. Article 12.2.a states, "The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child..."
25. Because labor rights standards have been extensively elaborated upon by the International Labour Organisation (ILO), and significant work has been done on housing rights in different countries and internationally, Provea has not concentrated on developing conceptual frameworks in these areas.
26. See box in chapter 1 for a description of FLAG's task forces.
27. The "violations approach" is one which was introduced by the American Association for the Advancement of Science and was initially intended to help the CESCR develop its ability to identify and condemn ESC rights violations. See A. Chapman, "A 'Violations Approach' for Monitoring the International Covenant on Economic, Social and Cultural Rights," Human Rights Quarterly, Volume 18, Number 1, Johns Hopkins University Press, Baltimore, 1996. As introduced, the approach would seek to monitor violations resulting from state actions and policies, failure of the government to fulfill its "minimum core obligations," and discriminatory practices. However, as advocated by some international organizations, the approach of reporting on egregious situations implies a more narrow definition of a "violation".
29. We can presume that there are state obligations in these areas, because in the Manual for Human Rights Reporting (UN document number HR/Pub./1991/1), the Committee on Economic, Social and Cultural Rights requires governments to provide information about provision of services in these areas. The reporting requirements can be found in points b and c under Article 12.
30. See chapter 5 for a more detailed description of this work.
31. The Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrim-ination Against Women, and International Labour Organisation Indigenous and Tribal Peoples Convention (Convention No. 169) contain ESC rights provisions. The Initiative has found they are more detailed and thus more useful than provisions in the ICESCR.
32. Other human rights standards contain provisions for participation and access to information on decisions affecting community and environmental welfare, including the Rio Declaration on Development and the Environment, Convention on Biological Diversity, and the Declaration on the Right to Development.
33. See Appendix G, Excerpt from Provea, Health as a Right, Caracas, 1996, for a discussion of provisions for participation related to the right to health.
35. Article 19.2 states: "Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers... (emphasis added). Article 19.3.b states: "The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (b) For the protection of national security or of public order (ordre public), or of public health or morals."
37. See General Comment No. 3 (1990), of the Committee on Economic, Social and Cultural Rights in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Document, HRI/Gen./1/Rev.1, July 1994. See also Philip Alston and Gerard Quinn, "The Nature and Scope of States Parties Obligations under the International Covenant on Economic, Social and Cultural Rights," Human Rights Quarterly, Volume 9, No. 2, Johns Hopkins University Press, 1987.
38. See paragraphs 6, 23 and 25 of the Limburg Principles (U.N. Document E/CN.4/1987/17, Annex). The Limburg Principles were formulated in 1986 by a group of twenty-nine experts who met to consider the extent and nature of states parties' obligations under the ICESCR. This document can be found in Human Rights Quarterly, Volume 9, Number 2, May 1987 along with several other articles devoted to clarification of the ICESCR. The Limburg Principles have recently been elaborated upon by "The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights," adopted on 26 January 1997 in Maastricht by 30 international legal experts. These will appear in an edition of Human Rights Quarterly in 1998.
39. General Comment No. 1 (1989), Committee on Economic, Social and Cultural Rights in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Document, HRI/Gen./1/Rev.1, July 1994.