OPINION PIECE ON IMPLEMENTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS BY LOUISE ARBOUR, UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS

13 June 2008
By approving the Optional Protocol to the 1966 International Covenant on Economic, Social and Cultural Rights on June 18, the United Nations took an important step to correct the artificial divide between freedom from fear and freedom from want that has characterized the human rights system since its inception. The Protocol creates an influential platform and a vehicle to expose abuses that are typically linked to poverty, discrimination and neglect, and that victims frequently endure in silence and helplessness.

The green light for the Protocol came on 18 June from the Human Rights Council, the intergovernmental body that holds the human rights portfolio. It will now be up to the General Assembly to provide a final seal of approval. If adopted, this instrument has the potential to make a real difference, particularly to the life of those who are often left to languish at the margins of society and who experience concomitant denials of economic, social, and cultural rights, such as access to adequate nutrition, health services, housing and education.

As recognized sixty years ago in the Universal Declaration of Human Rights, both freedom from want and freedom from fear are indispensible preconditions for a dignified life. The Declaration unequivocally linked destitution and exclusion with discrimination, and unequal access to resources and opportunities. Its framers understood that social and cultural stigmatization precludes full participation in public life, as well as the ability to influence policies and to obtain justice.

Yet this unified approach was undermined by the post-World War II logic of blocs competing in the arenas of ideas, power, and influence. Human rights were also affected by such geopolitical bipolarity. Countries with a planned economy argued that the need for survival superseded the aspiration to freedom. According to this view, access to basic necessities, included in the basket of economic, social and cultural rights, ought to take priority in policy and practice.

In contrast, western governments were wary of this perspective, which they feared would either hamper free market practices, or impose too cumbersome financial obligations on States, or both. Thus they chose to champion prevalently those civil and political rights that their political traditions had developed over time and that they viewed as the hallmarks of democracy.

Against this background, it was impossible to reach an agreement over a single, comprehensive human rights instrument giving holistic effect to the Declaration’s principles. And unsurprisingly, it took almost two decades before States simultaneously adopted two separate treaties encompassing the two distinct baskets of rights, namely: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights. However, only the former treaty was endowed with a follow up mechanism monitoring its implementation.

In practice, this discrepancy created a category of alpha rights—civil and political—which took priority in the domestic and foreign policy agendas of influential and wealthy States. As a result, the other basket of economic, social and cultural rights was often left to linger at the bottom of the national and international “to do” lists.

Overcoming this unprincipled position, the new Protocol contributes to create a legal framework which has the potential to finally level the human rights playing field. This is because it addresses the historic imbalance between the two baskets of rights by establishing also for the Covenant on Economic, Social and Cultural Rights a vehicle to expose abuse, known as “complaint mechanism,” which is similar to those created for other core human rights treaties. This procedure may seem opaque, but by lodging a complaint under the Protocol’s provisions, victims will now be able to bring to the surface abuses that their governments either inflict, or fail to stop, feign to ignore and neglect to redress. In sum, it provides a way for individuals, who may otherwise be isolated and powerless, to make the international community aware of their situation.

After the adoption by the General Assembly, the new instrument will enter into force when a critical mass of States has ratified it. This should contribute to the development of appropriate human rights-based programs and policies enhancing freedoms and welfare for individuals and their communities.

Not all States will embrace this new development. Some will prefer to avoid any strengthening of economic, social and cultural rights and will seek to maintain the status quo. The better and fairer view, however, will finally embrace the vision of the Universal Declaration of Human Rights and promote unambiguously the idea that human dignity requires the pursuit of the equally vital and mutually dependent freedoms from fear and from want.