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

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What are human rights & ESC rights?

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Why use an ESCR approach?

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How are ESC rights monitored and enforced?

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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

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

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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

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What makes ESC rights different from civil and political rights?

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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

present Covenant

by all appropriate means

, including particularly the adoption of legislative measures.” recognized in the 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

ensure that third parties do not interfere with their enjoyment. human rights means to take steps to – 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 themselves.

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

What is the content of ESC rights?

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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

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

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How could an ESCR approach help your work?

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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 (including the treaty bodies)— —e.g., courts, national human rights institutions, informal justice systems and mechanisms at the international level 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

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

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How could an ESCR approach help your work?

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

How are ESC rights monitored and enforced?

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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 System

Bodies created by human rights treaties Bodies created by the UN charter Human Rights Committee CESCR CERD CAT CEDAW CRC CMW Security Council UN Secretariat / Office High Commissioner for Human Rights General Assembly New Human Rights Council Economic and Social Council (ECOSOC) Commission on Human Rights

Bodies for monitoring and enforcing ESC rights

Convention / 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 rights

Extra-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 bodies

UN 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 bodies

UN 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)

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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

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Does anyone have experience in working with the special procedures?

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Does anyone have experience in working with the Treaty Bodies?

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The example of the RRN shadow/parallel report to CESCR

NGOs and Treaty Body reporting

NGOs 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 strategies

At 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 strategies

At 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

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

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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_cons ultation/LLP_Documentation_of_case_studies.pdf

Workshop tasks

Taking 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: [email protected]