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The Protection of Economic, Social and Cultural Rights within the UN Framework

Published online by Cambridge University Press:  21 May 2009

Monique C. Castermans-Holleman
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Extract

The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948, is the first UN human rights document to include civil and political rights as well as economic, social and cultural rights. However, since that time a dichotomy between civil and political rights and economic, social and cultural rights has characterized UN human rights activities. In 1966 the General Assembly adopted two separate human rights documents: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Two separate covenants were drafted as a result of western pressure. Western countries stressed the alleged difference in character of both categories of rights: civil and political rights could be implemented immediately while most economic, social and cultural rights could be implemented only progressively. In the Vienna Declaration, adopted by the World Conference on Human Rights in 1993, the principle of the equality of all rights was, however, forcefully emphasized.

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Articles
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Netherlands International Law Review , Volume 42 , Issue 3 , December 1995 , pp. 353 - 373
Copyright
Copyright © T.M.C. Asser Press 1995

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References

1. Donnelly, J., Universal Human Rights in Theory and Practice (1989) p. 41.Google Scholar

2. At the beginning of the 1980s two specialists in the field of United Nations human rights activities were engaged in a debate with regard to the assessment of UN activities in the field of human rights. Jack Donnelly argued that ‘[t]oday in the UN little attention is given to any rights other than economic, social and cultural rights’ (Donnelly, J., ‘RecentTrends in UN Human Rights Activity: Description and Polemic’, 35 Int. Organization (1981) no. 4, p. 635);Google Scholar Philip Alston argued way of contrast that the economic, social and cultural rights performance of States is subject to very superficial scrutinity. He added that ‘the principle of the equality of the two sets of rights is alive and well in UN doctrine while the tension that exists in practice between the two sets of rights continues, unavoidably and sometimes appropriately, to characterize its debates’ (Alston, P., “The Alleged Demise of Political Human Rights at the UN: A Reply to Donnelly’, 37 Int. Organization 1983) no. 3, p. 546).Google Scholar

3. The Special Rapporteur on the realization of economic, social and cultural rights has dealt with the conceptual basis of the relationship of the two categories of rights, in his preliminary report (UN Doc. E/CN.4/Sub.2/1989/19) and in his final report (UN Doc. E/CN.4/Sub.2/1992/16).

4. Proclamation of Teheran, para. 13, 1968.

5. UN Doc. E/CN.4/Sub.2/1992/16, p. 5.

6. Ibid.. p. 6.

7. UN. Doc. A/CONF.157/PC/62/Add.5.

8. CERD, CEDAW and CRC contain some rights of a social-economic character. Furthermore, the Declaration on the Right to Development (1986) should be mentioned. Although this document is an important document in the field of economic, social and cultural rights, it does not have the same legal implications as the aforementioned conventions since it is a declaration, adopted by the General Assembly and not a legally binding convention to be ratified by States. Where further codification in the field of economic, social and cultural rights has taken place, it has been done by the Specialized Agencies of the UN. The ILO, for example, has adopted several conventions related to the right to work such as the Employment and Occupation Convention of 1958 (No.111) and the Employment Policy Convention of 1964 (No. 122). The UNESCO has adopted a Convention against Discrimination in Education (1960).

9. Alston deals with the factors accounting for the difference in the extent of elaboration of the normative content of the ICCPR and the ICESCR: Alston, P., ‘Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights’, 7 Human Rights Q. (1987) pp. 351–355).Google Scholar

10. UN Doc. E/1991/23 annex III.

11. UN Doc. E/1992/23 annex III.

12. UN Doc. E/1995/22 annex IV.

13. UN Doc. E/CN.4/Sub.2/1989/19;1990/19;1991/17 and 1992/16.

14. Resolution 1993/77. The analytical report was presented as UN Doc. E/CN.4/1994/20.

15. Resolutions 1995/15, 17, 16, 19 and 14.

16. Under the ICESCR, possibilities to enforce the implementation of economic, social and cultural rights are limited. States Parties undertake to submit reports on the measures which they have adopted and the progress they have made in achieving the observance of the rights recognised in the Covenant. The Covenant does not provide for a State complaints procedure, let alone an individual complaint procedure. Under the reporting procedure, possibilities to impose sanctions are limited. The procedure is aimed at the development of a dialogue between the treaty-bodies and the States Parties. However, during its 1990 and 1991 sessions, the Committee took unprecedented action by declaring the Dominican Republic and Panama to be in violation of Art. 11 ICESCR (the right of everyone to an adequate standard of living including the right to housing) due to the extent and manner of evictions carried out in those countries. It was the first official condemnation of specific countries by a UN treaty-based body with regard to the practice of forced evictions (UN Doc. E/CN.4/1994/20, p. 27; more particularly: UN Doc. E/1991/23 p. 64 (Dominican Republic); UN Doc. E/1992/23 p. 32 (Panama).

17. See Tolley, H., The UN Commission on Human Rights (1987) p. 127.Google Scholar

18. This may be concluded from resolutions dealing with human rights violations under the public 1235 procedure but formerly dealt with under the confidential 1503 procedure. These countrysituations concern: Equatorial Guinee (1979), Afghanistan (1983), Albania (1988), Brunei (1990), Chad (1991), Myanmar (1992), Sudan and Zaire (1993).

19. Alston, P., ed., The United Nations andHuman Rights, a Critical Appraisal (1992) p. 151.Google Scholar He makes a reference to CHR resolution 5 (XXXIII) of 1977 in which the Commission states: ‘Decides that the Commission, which has so far concerned itself mainly with violations of civil and political rights, should also study violations of economic, social and cultural rights’ (para. 2). This resolution was adopted during a closed meeting under the 1503 procedure but afterwards it was decided to go public. See also Nowak, M., ‘The Promotion and Protection of Human Rights by the United Nations’, 6 Neth. QHR (1988) no. 2, p. 15,Google Scholar and Tolley, op. cit. n. 17, pp. 70–82 and 127–133.

20. Statement by Cees Flinterman, head of the delegation of the Kingdom of the Netherlands to the 50th session of the UN Commission on Human Rights, February 1994.

21. Resolution 1995/76.

22. Resolution 1995/89.

23. Resolution 1995/67.

24. Resolutions 1995/77, 65, 69, 91.

25. Resolutions 1995/72, 91 and 76.

26. UN Doc. E/CN.4/1995/56 pp. 14–17.

27. UN Doc. E/CN.4/1995/67, p. 50, respectively p. 46.

28. UN Doc. E/CN.4/1995/52, pp. 10–11.

29. UN Doc. E/CN.4/1995/64, p. 12; 1995/59, p. 9; 1995/65, pp. 29–30.

30. In 1994 only the Special Rapporteurs on Iraq and the former Yugoslavia dealt with violations of economic, social and cultural rights to any great extent (UN Doc. E/CN.4/1994/58 and 1994/110). The Special Rapporteurs on Iran, Cuba and Myanmar paid oblique attention to the situation of economic, social and cultural rights (UN. Doc. E/CN.4/1994/50; 1994/51; 1994/57).

31. As far as the Commission's thematic rapporteurs/working groups are concerned, it should be noted that they all have a mandate in the field of political and civil rights and are not allowed to deal with economic, social and cultural rights extensively. However, in his analytical report on the question of forced evictions, the Secretary-General of the UN has suggested that the Commission on Human Rights might wish to consider the establishment of a mechanism such as a special rapporteur on the practice of forced evictions (UN Doc. E/CN.4/1994/20, p. 45). So far, the Commission has not established such a mechanism.

32. Statement by Claude Harel, H.E., Ambassador of France on behalf of the European Union on 02 28, 1995.Google Scholar

33. UN Doc. E/CN.4/Sub.2/1992/16, pp. 5–6. See also K. Tomasevski, ‘Human Rights in Eastern Europe’, in Baehr, P., Hey, H., Smith, J., Swinehart, T., eds., Human Rights in Developing Countries, 1994 Yearbook (1994) p. 92.Google Scholar See for a discussion ofthe different approaches: Cassese, A., International Law in a Divided World (1986) pp. 297–315.Google Scholar

34. Barbara Stark has argued in an article on the US positions regarding economic rights that ratification ofthe ICESCR by the US has ‘never been a more realistic possibility’ than now since the US has, among others, signed the Vienna Declaration affirming that everyone has the right to enjoy economic, social and cultural rights: Stark, B., ‘Postmodern Rhetoric, Economic Rights and an International Text “A Miracle for Breakfast”’, 33 Virginia JIL (1993) no. 2, pp. 433–467).Google Scholar However, in view ofthe new Republican majorities in the US Senate and Congress, her hope seems to be an idle one.

35. Department of State, Country Reports on Human Rights Practices for 1994, Washington, 02 1995.Google Scholar

36. UN. Doc. A/CONF.157/PC/62/Add.5, p. 4.

37. Donnelly, J., ‘Human Rights at the United Nations 1955–85: The Question of Bias’, 32 International Studies Q. (1988) p. 285.Google Scholar

38. Advisory Committee on Human Rights and Foreign Policy, Economic, Social and Cultural Human Rights (1994) p. 15. In fact this suggestion has been put into practice already, since the Committee has formulated its Concluding Observations.

39. UN Doc. E/CN.4/Sub.2/1992/16, p. 55. During its last session the Committee on Economic, Social and Cultural Rights suggested that Panama should invite a delegation of the Committee to visit the country (UN Doc. E/C.12/1994/SR.50, paras. 3–5). In the meantime Panama has invited such a delegation.

40. UN Doc. A/CONF.157/PC/62/add. 5, annex II. See also Draft Optional Protocol to the International Covenant on Economic, Social and Cultural Rights adopted by the Utrecht Expert Meeting, organized by the Netherlands Institute of Human Rights, University of Utrecht, the Netherlands, 28 January 1995.

41. UN Doc. E/1991/23, Annex III, p. 83. See also the Limburg Principles, part I, B (included in UN Doc. E/CN.4/1987/17).

42. In the Limburg Principles attention is paid to the question when a State party is in violation of the Covenant (para. 72 of the Limburg Principles). In addition, the Special Rapporteur of the Sub-Commission on the right to food, Asbjorn Eide, has developed a typology of rights. He has argued in his study on the right to food that most economic, social and cultural rights include three different levels of State obligations: an obligation to respect, an obligation to protect and an obligation to fulfil. The obligation to respect urges governments to refrain from certain activities. The obligation to protect implies the responsibility of States to counteract or prevent activities or processes by third persons which negatively affect the enjoyment of economic, social and cultural rights. The obligation to fulfil implies active government involvement. While it may be difficult to decide whether a government has violated its duties to protect and fulfil, it is not more difficult to decide whether a government has violated its duty to respect with regard to an economic, social or cultural right than to a civil or political right (UN Doc. E/CN.4 Sub.2/1987/23, p. 29).

43. UN Doc. E/CN.4/1994/58 p. 52. In his 1995 report he also pointed to the obligations ex Arts. 2, 11 and 12 (UN Doc. E/CN.4/1995, 56, pp. 14–17).

44. The Chairperson of the Committee on Economic, Social and Cultural Rights has recently argued that it would seem appropriate that the Committee might make recommendations with a view to remedying any violation which it has identified. Art. 8, para. 1 of the draft Optional Protocol to the ICESCR deals with this possibility (UN Doc. E/C. 12/1994/12, p. 11). See also Art. VIII, para. 1 of the Draft Optional Protocol to the ICESCR adopted by the Utrecht Expert Meeting, 28 January 1995, which reads: ‘Where the Committee is of the view that a State Party has failed to give effect to its obligations under the Covenant, it may recommend that the State Party concerned take specific measures to remedy any non-observance of its obligations under the Covenant’.

45. Statement by Cees Flinterman, head of the delegation of the Kingdom of the Netherlands to the 50th session of the UN Commission on Human Rights, February 1994.

46. Advisory Committee on Human Rights and Foreign Policy, op. cit. n. 38, pp. 14–15.

47. Alston discusses extensively the pros and cons of the 1503 procedure, op. cit. n. 19, pp. 150–155. By its decision 1993/104 of 12 August 1993, the Sub-Commission on Prevention of Discrimination and Protection of Minorities decided to study the question of the reform of the 1503 procedure. In the meantime, the Secretariat has prepared a working paper on the reform of this procedure (UN Doc. E/CN.4/Sub.2/1994/17).

48. The Special Rapporteur on Economic, Social and Cultural Rights has suggested that the Commission on Human Rights should be recommended to encourage existing and future country rapporteurs to examine consistently the situation of non-compliance by States with respect to economic, social and cultural rights (UN Doc. E/CN.4/Sub.2/1992/16, para. 208, p. 54).

49. In its resolution 1995 /15 the Commission on Human Rights encouraged country rapporteurs ‘to consider, when appropriate, aspecific reference to the enjoyment of economic, social and cultural rights in their reports’.

50. The Special Rapporteur on Economic, Social and Cultural Rights has pointed to the possibility of an inter-State complaint mechanism, ‘with a view to rediscovering their potential vis-à-vis violations of economic, social and cultural rights in other States parties’(UN Doc. E/CN.-4/Sub.2/1992/16, p. 34). This recommendation remains very vague, in particular since the main instrument in the field of economic, social and cultural rights, the ICESCR, does not include a Statecomplaint mechanism.

51. Cf., Limburg Principles, para. 72.

52. Alston, op. cit. n. 19, p. 156.

53. Statement by Peter Kooijmans, head of the delegation of the Kingdom of the Netherlands to the 48th session of the United Nations Commission on Human Rights, 6 February 1992.

54. UN Doc. E/1992/23, p. 118. See on the question of thejusticiability of economic, social and cultural rights the papers submitted to the Expert meeting on the adoption of an optional protocol to the ICESCR, by F. Coomans, Clarifying the Core Elements of the Right to Education, Tomasevski, K., Defining Violations ofthe Right to Food andS. Leckie, The Justiciability of Housing Rights, SIM Special No. 18 (1995).Google Scholar

55. UN Doc. E/1991/23 p. 64 (Dominican Republic); E/1992/23 p. 32 (Panama).

56. Statement by Peter Kooijmans, head of the delegation of the Kingdom of the Netherlands to the 48th session of the United Nations Commission on Human Rights, 6 February 1992.

57. In resolution 794 of 3 December 1992 the Security Council decided ‘that the magnitude of the human tragedy caused by the conflict in Somalia, further exacerbated by obstacles created to the distribution of humanitarian assistance, constitutes a threat to international peace and security’.

58. See for a discussion of the Security Council activities with regard to the situation in Somalia: P.R. Baehr, ‘The Security Council and Human Rights’, in Lawson, R.A. and de Blois, M., eds., The Dynamics of the Protection of Human Rights in Europe, Liber Amicorum for Professor Henry G. Schemers (1994) pp. 24–25.Google Scholar

59. UN Doc. E/CN.4/1995/L.86. This resolution was rejected by 20 votes in favour, 21 against, with 12 abstentions.

60. In 1990 a total of 50 traditional Tibetan residential compounds were destroyed, resulting in the forced eviction of over 3,000 Tibetans. There was no consultation before the demolitions were carried out and there was no government help in finding or paying for temporary housing following the evictions: Leckie, S., ‘Social Engineering, Occupying Powers and Evictions; The Case of Lhasa, Tibet’, 6 Environment and Urbanization (1994) no. 1, p. 80;Google Scholar also UN Doc.E/CN.4/1992/37 pp. 46–47.

61. M. Shi, ‘China’, in Baehr et al., eds., op. cit. n. 33, p. 196.

62. The violations in Tibet are closely linked to the quest for self-determination and the Chinese policy of population transfer (Shi, loc. cit. n. 61, p. 195).

63. To mention an example: in the city of Shanghai and the city of Shenzhen forced evictions and demolitions of shelters have taken place (, Cohre, Housing Rights and Evictions (1994) p. 7Google Scholar).

64. Alston notes that not a single western European State has been targeted in the Human Rights Commission. ‘Even Turkey, which was subjected to strong and continuing critism in the Council of Europe context for its human rights violations escaped any investigation’: op. cit. n. 19, pp. 162–163).