5 Enforcement of Economic, Social and Cultural Rights in International Law

Prof. Rehan Abeyratne

Introduction

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by the UN General Assembly in 1966 and came into force in 1976. Article 16 of the ICESCR requires all state parties to submit periodic reports on their progress in implementing the Convention’s provisions. Article 17 makes the Economic and Social Council of the United Nations (UN) responsible for this reporting procedure. Since 1985, the Council has been assisted in this process by the Committee on Economic, Social and Cultural Rights. In 2013, the UN General Assembly adopted the Optional Protocol to the ICESCR. It allows individuals to file complaints before the Committee on Economic, Social and Cultural Rights alleging violations of their rights under the ICESCR.

The ICESCR is reinforced by regional enforcement mechanisms. In particular, the Inter-American, African, and European human rights frameworks provide additional monitoring and grievance redressal mechanisms for violations of economic, social and cultural rights protected by their respective regional human rights instruments.

This chapter introduces students to the enforcement mechanisms of the economic, social and cultural rights at both the international and regional levels. It describes how these mechanisms operate, some of their drawbacks, and the general challenges of enforcing economic, social and cultural rights.

Learning Outcomes:

After completing this module, students should know and understand:

The ICESCR’s enforcement mechanisms.

Challenges of enforcement.

Regional enforcement mechanisms for economic, social and cultural rights.

ICESCR Enforcement Mechanisms

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty adopted by the UN General Assembly in 1966. It came into force in 1976 and, together with the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), forms the International Bill of Human Rights. It has 162 States parties. Articles 16 and 17 of the ICESCR set forth the Convention’s enforcement mechanism. Article 16 requires state parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” in the Covenant. Article 17 further requires states to file their reports in stages, in accordance with a programme established by the Economic and Social Council, and that these reports may include “factors and difficulties” affecting the fulfillment of the Covenant’s provisions.

The ICESCR was originally enforced by the Economic and Social Council – a political organ of the UN. However, when it became clear that the Council did not have the capacity to effectively monitor state compliance, the Committee on Economic, Social and Cultural Rights was created in 1985. The Committee is an independent panel of 18 experts, who are elected for four-year, renewable terms by state parties. It makes decisions on complaints and monitors the implementation of the ICESCR. The Committee meets officially for a three-week session in Geneva every year, but in practice meets more regularly (usually three times per year). All state parties to the Covenant must submit regular reports to the Committee on how social, economic and cultural rights are being implemented. They must report initially within two years of accepting the Covenant and every five years thereafter according to guidelines set forth by the Committee. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.”

The ICESCR did not originally include a mechanism to receive and adjudicate upon individual complaints against state parties. However, this has recently been remedied. On 10 December 2008, the UN General Assembly adopted the Optional Protocol to the ICESCR. This empowers the Committee on Economic, Social and Cultural Rights to hear individual complaints. The Protocol came into force on 5 May 2013 and today includes 45 signatories and 15 state parties. Thus, individual complaints cannot (yet) be filed against a large majority of states in the international community.

Challenges in Enforcing the ICESCR

As discussed above, the ICESCR did not initially include a mechanism to receive and act upon complaints against state parties. While this was considered in the drafting process, it was thought to be unworkable in light of the nature of rights protected by the ICESCR.4 Economic, social and cultural rights (ESCRs) are generally viewed as “positive” rights, requiring states to expend resources and take affirmative measures to fulfill them. In contrast, civil and political rights, such as the rights to free speech and liberty, are thought to be “negative” rights that are fulfilled simply by state inaction. While this dichotomy is problematic,5 it heavily informed the drafting of the ICESCR. Article 2 of the ICESCR, for instance, makes clear that state obligations under the Convention are broad and subject to progressive realization. It provides that every state party “undertakes to take steps…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.”

With such wide latitude given to state parties, it would not make sense to include a complaint-filing mechanism. Indeed, progressive realization allows states to proceed at their own pace, considering resource constraints and developmental objectives, to fulfill their obligations in the long-term. Therefore, states are allowed to forego the complete fulfillment of ESCRs in the short-term – a practice that would be defeated by instituting an individual complaint mechanism.

There is also a related concern that, compared to civil and political rights, it is difficult to determine precisely when ESCRs are violated. Imagine, for instance, that a state provides adequate food and shelter to 80 percent of its citizens, but does not have the resources to provide those basic needs to the remaining 20 percent. If resources were allocated to fulfill the nutritional and housing needs of those remaining citizens, they would have to be taken from state subsidies to important industries. According to the state, if this redistribution took place, it would cause a severe economic recession and potentially lead to even more citizens being deprived of basic needs. Article 11 of the ICESCR requires states to take measures towards providing all citizens with an adequate standard of living. This includes adequate food and shelter, among other basic needs. So what is the state to do in this hypothetical? Is it “violating” Article 11 with respect to the 20 percent of its citizens who do not have adequate food and shelter? And if it took measures to fulfill the rights of these citizens, would it then “violate” the same rights vis-à-vis other citizens who are deprived of basic needs because of a state-induced economic recession?

These are very complex questions and, in light of this complexity, the drafters of the ICESCR allowed states to report on their own progress, including difficulties faced in the implementation of the rights in the Covenant. Note, by contrast, that the ICCPR has always permitted complaints to be filed. The Human Rights Committee of the ICCPR – an expert body specifically tasked to enforce the ICCPR – is empowered to examine complaints filed against a state party either by other states or by individuals whose rights are violated by that state. This fits with the widespread view that it is more straightforward to judge violations of civil and political rights and that these rights are readily enforceable (not subject to progressive realization).

The Committee on Economic, Social and Cultural Rights has struggled to ensure state compliance with this self-reporting procedure. Several states have not submitted reports by the deadline set by the Committee. In 1996, for instance, 88 state parties were overdue in their reports, while an additional 17 states had not filed a report in ten years. In addition, because states can report their own progress, there have been complaints that states exaggerate their progress and, in some instances, minimize their setbacks in implementing their obligations under the Covenant. The Committee recognized this shortcoming and, in 1992, invited “all concerned bodies and individuals to submit relevant and appropriate documentation” with respect to each state’s compliance with the ICESCR.

This has allowed NGOs to participate in the reporting process. While NGOs are not permitted to participate in the Committee’s dialogue with states parties, they may submit relevant written information to the Committee and give oral presentations at the beginning of each of the Committee’s sessions with respect to state compliance with the ICESCR.8 This greatly increases accountability, as the Committee is no longer forced to rely on the state’s claims of its own progress with respect to fully realizing the ESCRs in the Convention. The input of NGOs allows the Committee to gain a more accurate view of state compliance and perform its role more effectively.

Moreover, as discussed, the Optional Protocol to the ICESCR allows the Committee to hear individual complaints against state parties. However, since it only has 15 state parties, it does not yet have the authority to receive individual complaints against a vast majority of states. Perhaps over the next decade or so, the Committee will be able to expand its scope of jurisdiction and, like the Human Rights Committee of the ICCPR, hear complaints against a majority of states in the international community.

III.Regional Enforcement Mechanisms for Economic, Social and Cultural Rights

The ICESCR is reinforced by various regional instruments that protect economic, social and cultural rights. Regional frameworks have two additional benefits not conferred by global treaties. First, they can be tailored to the socio-economic and cultural needs of a specific region. Second, they may confer greater legitimacy on rights protected. This is particularly true in the developing world, where allegations of Eurocentrism and pro-Western bias are attached to global treaties. An African state, for instance, might be able to make such allegations against the ICESCR but would find it more difficult to make the same claims against the African Charter on Human and Peoples’ Rights (1981).

The Americas, Europe, and Africa have their own regional human rights frameworks with separate enforcement mechanisms. Let us consider each one in turn.

The Inter-American Framework

In 1948, prior to the announcement of the UDHR, the Ninth International Conference of American States set forth the American Declaration of the Rights and Duties of Man. Like the UDHR, the American Declaration was originally not a legally enforceable instrument. Today, it is widely understood to contain binding obligations against the members of the Organization of American States (OAS). All 35 independent countries of the Americas (North, Central, and South America) are members of OAS and are therefore bound by the provisions of the American Declaration. In 1969, the OAS adopted the American Convention on Human Rights. Unlike the American Declaration, the Convention is a binding instrument that requires ratification before obligations can be imposed on state parties. It has 25 state parties, meaning that several countries in the region, including the United States and Canada, have not ratified it.

Both instruments protect some economic, social and cultural rights. The American Declaration protects maternity and childhood (art. 7), the right to health (art. 11), the right to education (art. 12), the right to take part in cultural life (art. 13), the right to work and fair remuneration (art. 14), the right to rest and leisure (art. 15), and the right to social security (art. 16). The American Convention includes only a right to the progressive realization (art. 26), which requires state parties to undertake to adopt measures towards the full realization of “economic, social, educational, scientific, and cultural standards” set forth in the OAS Charter. However, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”) protects a full range of socioeconomic rights including education, health, food and social security. It has been ratified by 16 states and came into force in 1999.

The Inter-American System has two main enforcement mechanisms. The Inter-American Commission on Human Rights is based in Washington D.C. and comprises seven commissioners elected by the OAS General Assembly for four-year terms. Its most important functions are (1) to investigate individual petitions of human rights abuses within particular OAS member states and to publish reports of their findings; and (2), to monitor the general human rights situation in each member country and write periodic, country-specific human rights reports. The Commission has the authority to enforce the American Declaration of the Rights and Duties of Man, the OAS Charter, and the American Convention on Human Rights.

The Inter-American Court of Human Rights, based in San Jose, Costa Rica, has more limited jurisdiction. It may only enforce the American Convention on Human Rights. States that have not ratified this Convention – like the United States and Canada are therefore outside the jurisdiction of the Court. The Court has both adjudicatory and advisory functions. It can hear cases filed by member states or referred by the Inter-American Commission on Human Rights; it may not hear cases filed by individuals. In deciding these cases, the Court may grant monetary relief to victims and order states to implement programs to inter alia recognize, rehabilitate and provide other forms of non-monetary relief to victims. The Court may also issue advisory opinions on the interpretation of various OAS legal instruments as well as on the human rights impacts of domestic laws.

The African Framework

The African Charter on Human and Peoples’ Rights (1981) is the principal human rights instrument covering the African continent. 53 States have ratified the Charter, which comprises all African countries except for South Sudan. The Charter protects a range of ECSRs. These include the right to work (art. 15), the right to health (art. 16 and 18), the right to education (art. 17), and the right to a satisfactory environment (art. 24).

Much like the Inter-American system, the African Charter sets forth a dual enforcement structure, including both a commission and court charged with monitoring and enforcing states’ human rights obligations. Part II of the Charter establishes the African Commission on Human and Peoples’ Rights based in Banjul, the Gambia. Its mandate is to promote and protect the rights guaranteed under the Charter. The Commission is composed of eleven members who are elected by the Assembly of Heads of State and Government of the Organization of African Unity (OAU). Commission members serve for six-year terms, as specified in Article 36 of the Charter, and are eligible for reelection.

The Commission is empowered to receive and examine reports from state parties on their compliance with the Charter’s obligations. The review of these reports is usually done in open sessions that allow for NGOs and other stakeholders to participate and increase the accountability of the process.13 However, state parties have regularly failed to meet their reporting obligations by furnishing incomplete reports that ignore their economic, social and cultural rights obligations.

The other enforcement mechanism is the African Court on Human and People’s Rights based in Arusha, Tanzania. It was established through the Protocol to the African Charter on Human and Peoples’ Rights (2004). The Court has eleven judges chosen from among the member states of the African Union. The judges are first nominated by their respective states and then elected for a four or six-year renewable term in their individual capacities. They are chosen on the basis of “proven integrity and of recognized practical, judicial or academic competence and experience in the field of human rights.”

The Court is empowered to issue binding judgments against member states, but only 27 of the 54 African states have ratified the Protocol and are therefore subject to the jurisdiction of the Court.16 As per Article 5 of the Protocol and the Rules of the Court, the Court may receive complaints and/or applications submitted to by the African Commission, state parties to the Protocol, African Intergovernmental Organizations, and NGOs with observer status before the African Commission. Individuals from states that have made a Declaration accepting the jurisdiction of the Court can also file cases before the Court. However, only seven states have thus far made such a Declaration. The Court is therefore limited in its ability to enforce the obligations of the African Charter on Human and Peoples’ Rights against African states.

The European Framework

The 1950 European Convention on Human Rights (ECHR) is the primary regional human rights treaty in Europe. Yet, it only protects civil and political rights. Protocol 1 to the ECHR, however, protects the right to education. Article 2 of the Protocol provides that no person shall be denied the right to education and requires states to respect the right of parents to educate their children in line with their own religious and philosophical beliefs. All Council of Europe members (except Monaco and Switzerland) have ratified the Protocol. The European Court of Human Rights enforces the Convention and its Protocols. It is empowered to issue binding judgments against member states upon applications from individuals alleging the violation of their human rights or upon applications from other member states.

The European Social Charter (adopted in 1961, revised in 1996) offers comprehensive ESCR protection to citizens of member states. The Charter begins by listing in Part I a set of 31 rights and policy aims to be progressively realized. These include various rights of workers (inter alia to equal pay, safe and healthy working conditions, and collective bargaining), the right to protection against poverty and social exclusion and the right to housing. Part II then sets forth a range of binding obligations on states including the right to work, the right to health, the right to social security, etc.

The European Social Charter has been ratified by 43 out of 47 members of the Council of Europe. It is therefore enforceable against most European states. The European Committee of Social Rights is responsible for enforcement. The Committee is composed of 15 independent experts elected to six-year terms by a committee of ministers representing the member states. The Committee performs two main functions. First, it requires all member states to submit annual reports of their compliance with the Charter’s provisions and issues “conclusions” as to whether countries have fulfilled their obligations. Second, it issues “decisions” in response to complaints filed through the “Collective Complaint Procedure.” This allows certain organizations, including local trade unions and designated NGOs, to file complaints against member states alleging noncompliance with the Charter’s provisions.

Recently, the European Union adopted the EU Charter of Fundamental Rights, which has a binding effect on all member states since 2009. It includes, inter alia, the right to education (Article 14), the right to fair and just working conditions (Article 31), and the right to social security and social assistance (Article 34). Courts are empowered to strike down any EU laws or domestic laws in member states that violate this Charter. Thus, all told, the European framework provides the most comprehensive regional protection of ESCRs.

Summary

The 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) originally included a single monitoring mechanism. Under Articles 16 and 17 of the Covenant, state parties are required to submit periodic reports to the UN Economic and Social Council on their progress towards the full realization of the Covenant’s obligations. Since 1985, the Economic and Social Council has been assisted in the reporting process by the Committee on Economic, Social and Cultural Rights. The Committee has issued guidelines that states must follow in their reports, which must be filed within two years after ratifying the Covenant and every five years thereafter. The Committee also allows for NGOs and other interested parties to participate in this process to increase accountability on member states. However, many states still fail to submit reports in a timely fashion. Recently, the Optional Protocol to the ICESCR empowered the Committee to hear individual complaints against state parties. Only 15 states have thus far ratified the Optional Protocol, making it largely ineffective in practice.

In addition to these challenges of implementation, the Committee must contend with general difficulties in enforcing economic, social and cultural rights (ESCRs). At least, in theory, it is much more difficult to measure state compliance with these rights than with civil and political rights. Moreover, the ICESCR is framed in broad language to allow for the progressive realization of the rights enshrined within it. This gives states wide latitude in their policies aimed at fulfilling these rights, making enforcement even more challenging.

ESCRs receive additional protection at the regional level. The benefit of regional frameworks is that they can be tailored to the needs of particular regions and may perhaps lessen criticisms of Western bias that are leveled against international instruments like the ICESCR. The Inter-American, African and European human rights frameworks protect these rights to varying extents, but each has clear enforcement mechanisms to ensure state compliance. The European Social Charter, enforced by the European Committee of Social Rights, provides the most robust and comprehensive protection.

Reference

1. Council of Europe Treaty Office, Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, CETS No.: 009, available at: http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=009&CM=8&DF=25/09/2014 &CL=ENG.
2. Council of Europe, Member States of the Council of Europe and the European Social Charter, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/Presentation/Overview_en.asp.
3. Council of Europe, European Social Charter: Organizations Entitled to Lodge Complaints with the Committee, available at: http://www.coe.int/t/dghl/monitoring/socialcharter/OrganisationsEntitled/OrgEntitled_en.as p.
4. Official Journal of the European Union, Charter of the Fundamental Rights of the European Union, (2010/C 83/02), 30 March 2010.
5. Matthew Craven, “Introduction to the International Covenant on Economic, Social and Cultural Rights”, University of Minnesota Human Rights Resource Center, available at: http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_edn16
6. CESCR, Report on the Sixth Session. ESCOR, 1992, Supp. No. 3 (UN Doc. E/1992/23)