5.2.1 Economic, Social and Cultural Rights and NHRIs
Understanding the role that NHRIs can play in promoting a human rights-based approach to human development requires understanding economic, cultural and social rights and how these rights can be promoted in the work of NHRIs.
- In 1995, the UN emphasized that, although NHRIs tend to focus on civil and political rights, these institutions may also be empowered to promote and protect economic, social and cultural rights (ESC rights).4
- In 1997, the Maastricht Guidelines on Violations of ESC Rights suggested that “monitoring bodies such as national ombudsman institutions and human rights commissions should address violations of economic, social and cultural rights as vigorously as they address violations of civil and political rights.5
- In 1998, General Comment No. 10 of the ESCR Committee6 noted that “national institutions have a potentially crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights” … “it is therefore essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions.”7
- In 2000, the UNDP report Human Rights and Human Development explicitly linked rights and human development.
- In 2001, the Secretary-General’s Report, Road Map Towards the Implementation of the United Nations Millennium Declaration, stated that ESC rights are at the heart of the MDGs.8 In 2005, the UNDP’s Human Development Report: International cooperation at a crossroads: Aid, Trade and Security in an Unequal World pointed out the close ties between a country’s development and inequalities on one hand, and well-being and human security on the other hand.
ESC rights are about the fundamentals of human existence:
- the basic necessities of life;
- the right to learn and to work;
- the right to form a family; and
- the right to enjoy one’s cultural identity and the benefits of science and development.
While not all NHRIs have legal authority to look at issues of economic, social and cultural rights, many do.
Human rights (including economic and social rights) standards are becoming more clearly defined both internationally and nationally. Courts in a wide range of countries and legal systems— such as Argentina, the Dominican Republic, Finland, India, Latvia, Nigeria and South Africa—have been giving meaning to obligations associated with economic, social and cultural rights, including in connection with workers’ rights and the rights to food, social security, adequate housing, health and education.
For example, in 2002 the Constitutional Court of South Africa declared that the Government had breached its human rights obligations by failing to take reasonable measures (at affordable cost) to make wider provision of anti-retroviral medication to prevent mother-to-child transmission of HIV. This decision and the grass-roots campaign surrounding it has saved many lives. Decisions of the Supreme Court of India, including a 2002 decision concerning the right to food in the context of a preventable famine in Rajasthan, have likewise had a significant beneficial impact in a number of States in that country. The successful outcomes in these cases are to a great extent attributable to the fact that litigation strategies were integrated within wider social mobilization processes.
OHCHR. Frequently Asked Questions on A Human Rights-Based Approach To Development Cooperation. 2006
Even for those that have jurisdictional restrictions for economic, social and cultural rights, these restrictions usually apply only to the power to investigate complaints and do not typically restrict the promotional role of NHRIs to advise governments, educate the public about these issues or to monitor and comment on their application nationally.
It is clearly possible, therefore, for national institutions to develop and institute programming in a variety of areas that mesh with development goals. These include the
eradication of poverty, improvement of governance, the empowerment of vulnerable persons and the equalisation of opportunities.
NHRIs should include details of their mandate and relevant activities when preparing comments or assisting in preparing reports to the Treaty Body under the ICESCR. NHRI activities in the area should include:9
- promoting educational and information programmes designed to enhance awareness and understanding of economic, social and cultural rights, both within the general public and among particular groups, such as the public service, the judiciary, the private sector and the labour movement;
- scrutinising existing laws, administrative acts, draft bills, and other proposals to ensure that they are consistent with the requirements of the ICESCR;
- providing technical advice or undertaking surveys in relation to economic, social and cultural rights;
- identifying national benchmarks for measuring the progressive realisation of economic, social and cultural rights;
- conducting research, monitoring and/or inquiries to ascertain the extent of realisation of particular economic, social and cultural rights, at the national or regional level, or in relation to specific vulnerable communities; and
- monitoring compliance with regard to specific rights under the Covenant and providing reports to pubic authorities and civil society.
On 10 December 2008, the General Assembly adopted resolution A/RES/63/117, on the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The Optional Protocol authorises the Committee to receive and consider communications from involving State parties to the Covenant that become a Party to the Protocol. It further provides that at Article 2 that communications may be submitted by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party. As a new procedure in the area of ESC rights, NHRIs will have key role in lobbying for ratification of the Optional Protocol and creating awareness of this new instrument. As well, NHRIs can be instrumental in assisting victims to access the process for preparing communications to be submitted to the Committee.
5 Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (1997).
7 The United Nations Commission on Human Rights (as it then was) in its Resolution on National Institutions for the Promotion and Protection of Human Rights reiterated this statement and called upon all States to ensure that all human rights are appropriately reflected in the mandate of their national human rights institutions when established... UN Commission on Human Rights, Resolution 2002/23, 58th Session, 18 March-26 April 2002.