GI-ESCR: Our top five ESC rights priorities for the High Commissioner for Human Rights
Global Initiative for Economic, Social and Cultural Rights: Our top five ESC rights priorities for the High Commissioner for Human Rights Having been in office for three months now, the new High Commissioner for Human Rights, Mr Zeid Al-Hussein, will be well advanced in identifying his priorities for his term as High Commissioner. So we think it is timely to offer our top five suggestions for advancing economic, social and cultural (ESC) rights during his term.
The High Commissioner’s recent statement to the General Assembly in presenting the annual report of the work of his Office had an encouraging emphasis on economic, social and cultural rights and evidenced a nuanced understanding of the interdependence of all rights and of the role of ESC rights in crisis and conflict causation and prevention. Highlighting two ‘looming tragedies’, Ebola and climate change, the High Commissioner acknowledged that ‘failure to address systemic and systematic denial of economic, social and cultural rights may be not only a causal factor ….., but also among its far-reaching consequences’.
We couldn’t agree more. However, we are concerned by the tendency of States and multilateral institutions to prioritise civil and political rights over ESC rights, even 20 years after the Vienna Conference and the commitments made to universality and indivisibility. We are keen to see the continued high-level promotion of ESC rights by the Office. Here are our top five suggestions regarding ESC rights during the High Commissioner’s term.
Promoting economic, social and cultural rights
We think it is important for the Office to continue to reinforce the key principles emanating from the Vienna Declaration, namely the universality, indivisibility and interdependence of all rights. All rights – civil, cultural, economic, political and social – should be given equal attention by States and UN agencies, and the seriousness and devastating impact of ESC rights violations must be acknowledged.
We encourage the High Commissioner to continue to promote the ratification of the OP-ICESCR, as the growth and success of that complaints mechanism will substantially improve the understanding and acceptance of ESC rights through jurisprudence and put to rest any remaining questions about justiciability. It will also enable a closer and more sophisticated consideration and application of concepts such as ‘progressive realisation’ and ‘reasonableness’ which will assist in refining State strategies for implementation of ESC rights.
The High Commissioner is well-placed to highlight the underlying ESC rights violations as both causes and consequences of many conflicts and violence. This approach opens up opportunities to advocate for the realization of ESC rights as a means of conflict prevention. This is particularly pertinent when considering the impact of climate change which many commentators are predicting will lead to significant violent conflicts over scarce resources within the next generation.
The High Commissioner has already taken a lead in highlighting the role of the failure to realize rights to health care, food, livelihoods and housing and access to information, in fuelling the Ebola epidemic. He said ‘Ebola thrives at the intersection of chronic poverty, failure to deliver adequate public services, and failures of public trust in the authorities.’ Similar leadership in advocacy in relation to climate change and human rights will be vital in the coming year, as the States Parties to the UN Framework Convention on Climate Change meet in Lima (COP 20 in December 2014), with the goal of adopting a new legal instrument on climate change at its meeting in Paris in December 2015 (COP 21).
Frequently, human rights defenders come under attack when working to defend ESC rights, and in particular rights over key resources. Labor rights activists and land and environmental rights advocates are the first and second most ‘at risk’ categories of human rights defenders, according to the Special Rapporteur on Human Rights Defenders. Again, promotion of ESC rights at the national level, and particularly the principles of transparency and participation in decision-making, could help to reduce conflicts and risks for ESC rights defenders.
The High Commissioner and his Office can also play a very constructive role by helping States to understand how to implement their ESC rights obligations. The obligations to respect and protect have historically received greater attention, but the obligation to fulfill ESC rights needs increased focus and attention. We suggest, for example, encouraging field offices to work with States on the positive ESC rights obligations associated with the obligation to fulfill. This can be done, for instance, by utilizing some of the excellent practical tools and information available to assist States, such as the Handbook on Realizing the Rights to Water and Sanitation recently developed by the Special Rapporteur on the right to water and sanitation, and the Guidelines on Security of Tenure developed by the Special Rapporteur on the right to adequate housing. Both offer practical guidance on how States can better meet their obligations to fulfill ESC rights at the domestic level.
Defending women’s economic, social and cultural rights
Critical to the alleviation of poverty and disadvantage across the world is the promotion and protection of women’s ESC rights. The feminized face of poverty is testament to the persistent discrimination against women in law and practice in the area of ESC rights, such as access to land and productive resources, secure housing, access to sexual and reproductive health care and information and access to education. There is ample evidence to demonstrate that securing women’s equal ESC rights can have a transformative impact on the lives of poor women and consequently the lives of their children, families and communities.
For instance, research evidence suggests that secure land rights for women may help prevent the spread of HIV/AIDS by promoting women’s economic empowerment, thereby reducing their vulnerability to some forms of gender-based violence and exploitation, unsafe sex, and other AIDS-related risk factors. Research also suggests that women with secure rights to land are much less likely to report experiencing physical and psychological violence within the context of their intimate partner relationships. Studies have also linked women’s land, property and productive resource rights to better health, nutritional and educational outcomes for their children.
Successful strategies for securing women’s ESC rights must involve combating the persistent harmful gender stereotypes and deeply embedded social norms and practices which discriminate against women in all areas of their life. It will also involve firmly responding to the recent, damaging backlash against the universality of rights and attempts to undermine the human rights of women (and other groups). This is occurring at the international level in the Human Rights Council and at the domestic level, for instance in relation to continuing resistance to women’s sexual and reproductive rights, and equal rights to property and land. It is occurring both in human rights treaty body reviews where female genital mutilation continues to be defended by some States and in related UN fora such as WHO (where the established definition of violence against women was recently questioned) and in the Commission on the Status of Women, where States in recent years have been unable to agree on consensus language upholding women’s rights, thereby undermining basic principles of gender equality. Most notably we have seen a large group of States pursuing a ‘traditional’ or ‘family values’ agenda which seeks to subvert the rights of individuals within the family, usually women, to the ‘greater good’ of maintenance of tradition and the family.
This is an issue that affects rights in all areas, impeding progress at the international level and preventing transformative change in both law and practice at the national and local levels.
We think it is crucial that the High Commissioner and his Office show very strong leadership on these issues and be vigilant in countering statements and moves to rollback progress and undermine universality. If ‘traditional and family values’ continue to garner support at the expense of fundamental individual human rights, the foundations of the system will be diminished and many of the hard-won gains in women’s rights (and LGBT rights) will be at risk.
Human rights and the post-2015 development agenda
The Office and former High Commissioner did a lot of great work in urging the integration of the universally accepted human rights norms and principles into the work on the post-2015 development agenda and the sustainable development goals (SDGs).
The next year is a critical time and a once-in-a-generation opportunity for transformational change as the post-2015 process enters its final stage of intensive State negotiation with final agreements to be reached in September 2015. The SDGs will determine global development policy and influence national strategies and priorities, for the next 15 years.
We would highlight 3 priorities:
ensure that human rights principles are integrated into the proposed sustainable development goals;
ensure that discrimination and inequalities, both within and between countries, are directly addressed; and
ensure that effective human rights based monitoring and accountability mechanisms are incorporated.
The failure of the original MDGs to pay attention to inequalities is one of their greatest failings. For many of the goals, progress was heralded on the basis of national statistics, whilst ignoring the significant lack of progress for certain groups: often women and girls, people in rural areas, persons with disabilities, minorities and other marginalized groups. We know that inequality is on the rise globally and there is ample evidence of the links between greater equality within societies and healthier, happier, more cohesive, less violent, societies and sustainable economic growth. Whilst inequalities have been addressed in the draft SDGs, sustained advocacy is required to ensure that these measures are not watered-down and that they link to the human rights principles of equality and non-discrimination (and therefore benefit from the substantial body of jurisprudence on their meaning and implementation) and that the collection of appropriate disaggregated data to capture systemic discrimination is integrated into the targets and implementation plans.
We have also seen how the lack of access to justice and effective accountability mechanisms in the original MDGs has in part caused their relatively modest progress. States and other powerful actors must be answerable for the new SDGs in order to avoid a similar fate where long-term sustainable development goals are sacrificed to short-term economic demands. This last point remains the biggest deficiency of the current draft SDGs: no specific accountability mechanism is identified.
We would encourage the High Commissioner to continue his predecessor’s strong advocacy in this respect and redouble efforts to ensure that human rights are not side-lined in political negotiations. We think the High Commissioner can play a pivotal role in engaging with States to convince them of the benefits of integrating a human rights approach and in particular the value of the well elaborated human rights principles of: participation, equality and non-discrimination and accountability.
Human rights and the economic sphere
Economic and social rights will continue to go unrealized for millions of poor people around the world without tackling the inequities in the global economic systems. Despite the very clear links between human rights impacts and actors in the economic sphere, the economic sphere has proved to be somewhat impermeable to human rights approaches and advocacy in the past, in part as a function of differences of culture, priorities, conceptual frameworks and technical capacities. However, recent years have seen strong human rights advocacy in various economic policy discussions, such as in relation to: tax justice; oversight of international financial institutions; human rights budgeting; the restrictive provisions of bi-lateral investment treaties; and the impacts of so-called ‘vulture funds’.
This is an issue that the OHCHR has recognized as important in its ‘Thematic Strategies’ which will guide its work for the coming three years. Further, a number of special procedures mandate holders and treaty bodies are directly tackling these issues and it’s vitally important to give this work greater prominence. We encourage the OHCHR to promote a broad understanding of the application of human rights obligations, which encompasses the economic sphere and advise and support domestic policy makers to apply human rights to economic policies and processes, in particular the principles of transparency, participation and accountability.
The global financial crisis and austerity policies in Europe brought these issues to the fore and highlighted in a very direct way the impact of economic policy on ESC rights. Civil society groups provided strong critiques of the complete failure of governments to consider human rights in their policy responses to the global financial crisis and advocated for the inclusion of human rights considerations into the discussion. Indeed, human rights advocates have found that, in order to rise to the challenge, it is imperative to provide greater clarity and specificity about how to tackle the crisis in a human rights compliant manner. Some excellent work has been done in this regard which can help others to sharpen their analysis and recommendations in order to ensure a consistent and coherent human rights response to global financial crisis and austerity policies.
Again, leadership from the Office on these issues, together with greater technical capacity to participate in discussions happening in the economic sphere, would assist to normalize the inclusion of human rights considerations in key international economic fora and develop a more sophisticated dialogue between the economic and human rights spheres.
Non-State actors and Inter-Governmental Organizations
In an increasingly globalized world, with private actors searching for new investment opportunities in emerging markets, the proliferation of State and donor-led policies of privatization of public services and the proliferation of new multi-lateral financial institutions which is aiding a race to the bottom in social and environmental standards, the role of non-State actors and inter-governmental organizations such as the World Bank in both the fulfillment of human rights and in human rights abuses must be urgently and critically examined. Increasing attention has been focusing on the role of non-State actors, including corporate and business actors and international financial and development institutions, in human rights abuses in recent years.
Within the UN human rights system we have seen most treaty bodies addressing non-State actors through Statements, General Comments and in Concluding Observations for State reviews. Many Special Rapporteurs have also raised these issues in their reports and in response to communications. These mechanisms have drawn attention to the role in promoting and protecting human rights of business actors including State owned enterprises, international financial institutions such as the World Bank and development institutions, multi-lateral organisations including UN agencies, and overseas development assistance bodies. With the emergence of new lenders at the State level (eg: China) and the multilateral level (eg: new BRICs development bank), the current environment for international financial institutions is more competitive and IFIs are reacting by reducing the rigor of their social and environmental standards to try to attract more borrowers. An example is the European Bank for Reconstruction and Development which reviewed its standards earlier this year watering down human rights protections. Yet, the decisions of these multi-lateral actors have significant impacts on the ESC rights of millions of people across the world.
Civil society has long campaigned for greater regulation and accountability of business actors including those acting across national borders, and more recently States have begun to take substantive steps to address these issues. Significantly, the Human Rights Council has responded to these issues through the endorsement of the UN Guiding Principles on business and human rights (GPs), the establishment of the Working Group on the issue of human rights and transnational corporations and other business enterprises and a number of resolutions culminating in the establishment of an Inter-Governmental Working Group (IGWG) mandated to elaborate a treaty on transnational corporations and human rights.
The GPs and the IGWG process for a treaty on transnational corporations are important advances towards the goal of accountability of business for human rights abuses, but the GPs of course are unenforceable and the IGWG process is likely to be a long, difficult and political process, given the politics involved in its establishment. Given this and the heated and highly political environment surrounding the Human Rights Council resolutions on business and human rights in June this year, this topic is at a critical juncture and could benefit from high-level attention to ensure that the work of the two initiatives just mentioned are complementary.
In the meantime, work on the accountability of non-State actors should continue beyond but in line with these two processes. We consider the areas requiring greater attention to include:
Access to justice and remedies for violations, including ESC rights violations, and in particular the cross-border human rights impacts of non-State actors. If this issue is not addressed, a very large proportion of victims of rights abuses, particularly ESC rights abuses, will continue to go unremedied. The OHCHR report on access to domestic remedy highlighted many of the problems, but we now need to identify solutions, which must include consideration of ESC rights violations and ‘home’ States ensuring the availability of remedial mechanisms for overseas victims of violations involving their registered business entities.
State extra-territorial obligations under human rights treaties, which oblige States to consider the extra-territorial human rights impacts of non-State actors, including:
The impacts of corporations registered in their territories but operating overseas;
The impacts of international financial institutions they are a member of;
The impacts of State-owned enterprises operating overseas;
The impacts of overseas investments of State investment entities.
The UN human rights treaty bodies and Special Procedures mandates are already highlighting the importance of these obligations and some States are turning their attention to them. However, more needs to be done to promote the existence of these obligations and to encourage States to incorporate human rights due diligence, monitoring, accountability and access to remedy into their corporate regulatory frameworks and ODA bodies.
Privatization of public services is increasingly the preferred policy of many States, yet in many cases this policy is adversely impacting universal access, exacerbating structural inequalities and failing to prioritize the most disadvantaged people. It is largely going unregulated and unmonitored but is having significant and long-term impacts – often detrimental – on the rights to health, education, food, water and sanitation. Greater attention needs to be paid to investing in and strengthening public services and ensuring that the fulfillment of rights to food, water, sanitation, housing, education and health, when provided by private actors, is human rights compliant.
These are our suggested ‘top five’ priorities for ESC rights for the High Commissioner as he plans his work during his first term in office. Undoubtedly you will have others of equal importance and impact which we would be interested to hear about.
Lucy McKernan UN Liaison, Global Initiative for Economic, Social and Cultural Rights November 2014
 Statement by the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, to the UN General Assembly 69th session, New York, 22 October 2014. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15198&LangID=E
 Press conference by United Nations High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, 16 October 2014. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15173&LangID=E
 A/HRC/4/37 at para 49
 Strickland, R. (2004).To Have and To Hold: Women’s Property and Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa. International Center for Research on Women (ICRW) Working Paper. See also: Panda, P., (2002). Rights Based Strategies in the Prevention of Domestic Violence. ICRW Working Paper No. 344.
 Gupta, J. (2006). Property Ownership of Women as Protection for Domestic Violence: The Best Bengal Experience, in ICRW (2006) Property Ownership and Inheritance Rights of Women for Social Protection – The South Asia Experience, at 45.
 Smith, L., Ramakrishnan, U., Ndiaye, A., Haddad, L. & Martorell, R. (2003). The importance of Women’s Status for Child Nutrition in Developing Countries. International Food Policy Research Institute Research Report 131, 58, 60, 79 ; Gomez, M. and Tran, D.H. (2012), Women’s Land and Property Rights and the Post-2015 Agenda, Official Back-ground Paper – Global Thematic Consultation on Addressing Inequalities, p.10.
 See for example the Report of the Special Rapporteur on extreme poverty and human rights on fiscal and taxation policies, UN Doc A/HRC/26/28, here http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/033/74/PDF/G1403374.pdf?OpenElement
 See for example: http://www.hrw.org/news/2014/03/05/european-bank-reconstruction-and-development-draft-environment-and-social-policy-ret
 See for example: http://www.amnesty.org/en/news/nigeria-world-bank-panel-turns-its-back-forcibly-evicted-community-2014-07-18
 Although there is a long history of failed attempts by States to put in place a form of international oversight of corporations.
 See for example the recent report of the Special Rapporteur on the right to education, Mr Kishore Singh, UN Doc A/69/402.