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Summary: Resource on litigating economic, social and cultural rights; includes a chapter with a special focus on the economic and social rights of children.
All those working to achieve economic, social and cultural rights (‘ESC rights’) – whether community activists, lawyers, researchers, or those few working within the political sphere – continue to work with a comparative disadvantage relative to the more ‘classical’ human rights actors. ESC rights advocates remain the underdogs of the human rights domain. As we seek to use the law of human rights of human rights as a tool to move governments to give effect to these social rights, to empower the human rights have-nots, to transform global consciousness and even to move markets in the right(s) direction, we do so from the perspective that treating the system of rights in a bifurcated or reductionist way does not take us closer to the goal of a world where all people enjoy all rights all the time. Despite the presence of many obstacles, much has been achieved in the protection and promotion of economic, social and cultural rights over the past half century - new standards, new laws, new procedures and remedies, new institutions and new, albeit often reluctant, engagement by large human rights non-governmental organisations in the struggle for economic, social and cultural rights. ESC rights advocates become almost enraptured with every victory, no matter how small. But this joy stems not only from the fundamental changes it may have brought about. It is also motivated by the reality that, because economic, social and cultural rights remain so marginal, any step forward, even a minute one, has to be seen as a dramatic event given how slim the chances are of significant progress. We need to consider how far the field of economic, social and cultural rights has advanced in recent decades. How equitable is the enjoyment of these rights with the classic rights of a civil and political nature? How are economic, social and cultural rights experienced on a daily basis by rights-holders throughout the world now as contrasted to 10, 20 or even 50 years ago? Have the institutions required to enforce these rights been put in place to do so? Where do we stand now and what future awaits the arena of economic, social and cultural rights? It is all too clear to me, after working for much time in this field, that the structural changes required to ensure the sustained enjoyment of economic, social and cultural rights are as distant as they have ever been. The combination of market fundamentalism, corruption and the exclusion of the voices of the poor has often led to higher costs for housing, education, health care, water and food. These factors have surely benefited the world’s haves, while simultaneously squeezing the human rights have-nots even tighter, so that the have-nots find themselves even further from the basic attributes of life that economic, social and cultural rights were meant to provide. Violating civil and political rights has, to some extent, become more difficult during the last half century, and levels of impunity for such abuses are eroding, albeit slowly; the movement has seen many reverses. However, the world remains a veritable free-for-all for those responsible under internationallaw for securing economic, social and cultural rights - States, private individuals, businesses and the international community itself. A significant number of human rights organisations, from which one would expect the full embrace of economic, social and cultural rights, continue to employ 1950s thinking on what constitutes a human rights violation important enough for them to address. Thus, many violations of social rights fall by the wayside. In our painfully unequal world, the time is right for ESC rights advocates to begin to re-assess our collective strategies for achieving global social and economic justice and to ask and answer the hardest questions of all. Only if we do this may we hope that the next evolutionary phase of the human rights movement once and for all results in an integral embrace by all of all - all people, all rights. Let us first ask how far we may expect to advance in a world where the number of States that might be classified as true champions of economic, social and cultural rights is extremely small. And, next, perhaps an even harder question to consider: to what extent can we empirically show that economic, social and cultural rights treated as rights have led to improved standards of living for the urban or rural poor? Within a given State, has the ratification of the International Covenant on Economic, Social or Cultural Rights or the inclusion of ESC rights within a constitutional framework fundamentally altered the position of the poor or resulted in real redistribution? Or was it actually the market or an all-powerful State that precipitated change beneficial to the poor? One would hope, of course, that rights will fill the gap where markets or States fail, as they both inevitably do. No matter how we slice it, deprivation, poverty, inaccessible health, education and welfare systems and immense human suffering remain distressingly commonplace because States and markets have failed and because economic, social and cultural rights - the most promising path of potential hope - have been rejected in practice by those failing institutions of governance and economy. We are thus left with a predicament for which there is only one realistic solution if we aim to rejuvenate economic, social and cultural rights. This is simply that our leaders and most respected commentators need to take a step back and re-evaluate the questionable virtues of treating economic, social and cultural rights and their civil and political counterparts as if they were separate and distinct, rather than interrelated and indivisible. These actors must embrace a cohesive, inclusive approach to human rights, whereby powerful terms such as indivisible, inter-dependent and inter-related take on the more profound meanings that one intended to bestow on them. Many of the proverbial bricks in the wall required for the full protection of economic, social and cultural rights are in place, but the openings in our wall remain gaping and daunting. With respect to legal remedies for violations of ESC rights, the Universal Declaration of Human Rights, in 1948, provided that “[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” Despite this promise made by the international community, victims of violations of economic, social and cultural rights have historically been accorded few avenues to seek redress at either the national level or the international level. Furthermore, remedial mechanisms have been piecemeal and have traditionally favoured civil and political rights. Litigation has also been hindered by the lack of awareness about economic, social and cultural rights among judges, lawyers, advocacy organisations and victims. However, a growing body of case law concerning economic, social and cultural rights is now evident at the national, regional and international levels and has supplied inspiration for those advocates wishing to take the legal option in addressing issues of poverty and exclusion. This manual provides an introduction to the theory and practice of legal aspects of economic, social and cultural rights. It is hoped that, by assembling and analysing legal issues, procedures and resources, this publication will serve as a useful tool to satisfy the increasing interest in litigating economic, social and cultural rights at the international, regional and national levels. In Part I, the opening chapter provides an analysis of the various legal issues commonly encountered in economic, social and cultural rights litigation. These include identifying the relevant sources of law, establishing justiciability, defining the nature and scope of rights and obligations, responding to the defences available to governments, and the crafting of appropriate remedies. The next chapters address the right to legal aid for economic, social and cultural rights litigation, specific rights (social security, housing, health and education), as well as the social rights of children. This will provide the user of the manual with a sense of how the application and interpretation of economic, social and cultural rights may vary depending on the group claiming the right and the particular right at issue. In Parts II and III, the various regional and international complaints procedures are outlined. For each human rights mechanism, there is a description of the relevant legal instruments, the applicable economic, social and cultural rights standards and the responsible adjudicatory body. The procedure for making a complaint is set out in detail, together with the limitations of the various procedure. Each chapter concludes with a brief analysis of the jurisprudence of judicial or quasi-judicial bodies and a list of useful resources. The remainder of the manual seeks to provide the user with a range of practical resources for litigation. Part IV sets out summaries of leading cases on economic, social and cultural rights, while a list of contact details on individuals and organisations with experience and expertise in the area of social rights litigation and a select bibliography can be found online at www.cohre.org/litigation. We hope you find this manual a valuable tool in your struggle to defend and promote economic, social and cultural rights through legal avenues.