ESC rights: The need for a courageous, uncompromising approach


In a world of increasing inequality, what more can and should the UN Human Rights Council do to promote and protect economic, social and cultural rights, especially those of the most disadvantaged and vulnerable, asks Miloon Kothari.


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By Miloon Kothari, former UN Special Rapporteur on the Right to Adequate Housing

In a world of increasing inequality, what more can and should the UN Human Rights Council do to promote and protect economic, social and cultural rights, especially those of the most disadvantaged and vulnerable, asks Miloon Kothari.

The 1993 Vienna World Conference on Human Rights issued a clarion call for the world to take economic, social and cultural rights as seriously as civil and political rights. The Conference called for an approach where ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis’.

The UN Commission on Human Rights (the Commission) and its successor the Human Rights Council (the Council) heeded this call and promoted economic, social and cultural rights (ESC rights) through the appointment of Special Rapporteurs on health; food; adequate housing; water and sanitation; extreme poverty; and foreign debt. A series of path-breaking thematic resolutions (the rights of lesbian, gay, bisexual persons and human rights defenders, among others) were adopted in addition to the bi-annual ESC rights omnibus resolution and the resolutions guiding the work of the various Special Rapporteurs tasked with the promotion and protection of ESC rights.

A remarkable set of new soft-law standards that protect ESC rights have emerged from the Commission, the Council and its mechanisms including: declarations of the rights of indigenous peoples and on the right to development; and guidelines on internally displaced persons, extreme poverty, structural adjustment and debt, and forced evictions and displacement. A series of new standards are in process: The Draft Declaration on the rights of peasants, and the initial discussions to consider a binding treaty on transnational corporations and other business enterprises are among them.

The continued attention to ESC rights by the Council is welcome but, given the escalating scale of the crisis, not nearly enough. Copious evidence from around the world demonstrates a continued assault on the ESC rights of the most vulnerable, including through growing social and economic inequality. Governments continue to treat ESC rights, if recognised as human rights at all, as the poor cousins of civil and political rights. Excuses for the non-recognition and non-implementation of these rights are many, including lack of resources; non-justiciability; and helplessness in the face of global economic and trade policies that give primacy to profit and investment over the fulfilment of ESC rights, especially of the most vulnerable.

Given this continued reluctance on the part of the international community and nation States to recognise and implement ESC rights, what more can the Human Rights Council do?

Confronting the structural causes of poverty and inequality

An unavoidable task before the Council, if it is to constructively intervene to change this dire reality, is to summon the courage to analyse and confront the structural faults that arise from misguided global, regional and national economic and trade policies. This approach unabashedly continues to promote the neo-liberal ideology; an ideology that evidence from across the world has discredited. As part of such effort it is imperative that the Council confronts, in resolutions and through its mechanisms, the privatisation of ESC rights (including health, housing, water and sanitation) and the wanton, uncontrolled speculation of land and property including through historically unprecedented land-grabbing prevalent across the world today. Part of this effort must also include action to confront the obscene growth of the power of transnational corporations and the continued widespread ambit of play and influence enjoyed by global financial institutions (such as the World Bank and the International Monetary Fund) that champion the destructive neo-liberal approach.

Normative development and recognition of the right to land

The Council must continue the normative development of ESC rights – for example through the recognition of land as a universal human right. While the world is concerned with rapid urbanisation, the underlying causes for this human exodus are not being addressed. Such migration is generally not voluntary, but is the product of extreme rural poverty due to landlessness; land insecurity; land conversions; the loss of means of subsistence resulting from a failure to give priority to agrarian reform or promote rural infrastructure; project-induced evictions and displacement; distressed housing; or the industrial takeover of farmland. In cities, these migrants are often precluded from accessing adequate housing and forced to live in informal settlements characterised by insecure and inadequate living conditions

Urban and peri-urban areas across the world today are witness to the violations of a range of human rights, due to the inability or unwillingness of the authorities to adequately control land and housing speculation and to reverse the concentration of land ownership and hoarding of property. This phenomenon is also spreading to rural areas. The privatisation of land often leads to land becoming less affordable, which has particularly affected women-headed households. Land is also of great importance to certain groups that have suffered historic discrimination on grounds of descent, race or colour. The lack of legal recognition of the right to land contributes to these situations.

Increasing specific attention to ESC rights through the Universal Periodic Review

An overarching step that the Council can take towards bringing parity between ESC and civil and political rights would be to make a concerted effort, during the third cycle of the Universal Periodic Review, for States to ask questions and make recommendations on ESC rights.

Research done, by the Center for Economic and Social Rights (CESR) and the Human Rights Clinic at Science Po, on the recommendations from the first and second cycles of the UPR, demonstrate that recommendations on ESC rights account for less than one-fifth of all recommendations. When we look in more depth at the substantive nature of these recommendations the story becomes even more lopsided in favour of civil and political rights; an analysis of the recommendations made on a sample of countries showed that only a third of ESC rights-focussed recommendations called for a specific action, as compared to two thirds of civil and political rights-focussed recommendations.

Precision and specificity is critical, including for groups that defend ESC rights. The Council is on the right path as it recognises the role of particular groups that defend ESC rights, as it has done through the adoption of its March 2016 resolution on human rights defenders and ESC rights. This critical recognition amounts to little, however, if those that mobilise for and defend ESC rights are not offered protection, and those governments and third parties responsible for violating the human rights of defenders prosecuted or otherwise held accountable. The UPR recommendations must continue the path-breaking work started by the adoption of the Council resolution on defenders and ESC rights.

The recommendations on ESC Rights in the UPR third cycle need to be precise. They need to call for the development of indicators and monitoring tools, impact-assessment of policies and programmes, and budgetary allocations to assess progress on ESC rights. The recommendations need to guide States to engage with national human rights institutions, parliaments, civil society and independent institutions in a constant process of dialogue and monitoring. Any attempt made by the Council, through the UPR mechanism, has to target the removal of the bias towards civil and political rights that has characterised the first and second cycles of the UPR.

Coordination, implementation and accountability at the national level

The UN human rights system ensures the active, and legitimate, role of non-State actors, particularly civil society and national human rights institutions, in the process of monitoring recommendations emanating from the three nodal points of the UN human rights system – the UPR, treaty-bodies and the Special Procedures. The Council, as the UN’s premier human rights body, must play a leadership role in guiding States to adopt a range of dynamic opportunities for national level action on human rights. Such action can take the form of human rights trainings across sectors, human rights education at all levels of society and government, and local and national level mechanisms for monitoring the State’s human rights commitments. If this process of active national level participation to ensure State compliance can involve national parliaments, national human rights institutions and political and non-political formations, then State accountability can perhaps be ensured at the national level where it matters the most. This in turn can lead to the strengthening and institutionalisation of implementation mechanisms informed by the domestication of international human rights commitments and the upholding of national constitutional commitments.

In the spirit of the Vienna World Conference on Human Rights and more importantly the upholding of ESC rights for the millions across the world whose human rights continue to be violated, the Council must do all in its power to bring parity between ESC and civil and political rights. Nothing less than the global credibility of the Human Rights Council is at stake.

Miloon Kothari is an independent international human rights consultant, co-founder and former Convenor of the Working Group on Human Rights in India and the UN and former UN Special Rapporteur on the Right to Adequate Housing. He also serves as President of UPR Info.