Economic and social rights pdf
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- Economic, Social, and Cultural Rights - a Guide to the Legal Framework
- What are Economic, Social and Cultural rights?
- What are Economic, Social and Cultural rights?
Economic, Social, and Cultural Rights - a Guide to the Legal Framework
This essay deals with social, economic and cultural rights and political and civil rights within the context of international law on human rights. To this end, it reviews the contemporary conception of this issue in the light of the international system of protection, evaluating its profile, its objectives, its logic and its principles, and questioning the feasibility of an integrated vision of human rights. This is followed by an evaluation of the main challenges and prospects for the implementation of these rights, claiming that facing this challenge is essential to ensure that human rights will take on their central role in the contemporary order.
How to understand the contemporary formulation of human rights. Human rights come into being as and when they are able and required to do so. As Norberto Bobbio emphasizes, human rights do not arise either all at once or for good.
To Hannah Arendt, human rights are not given facts, but a construct, a human invention that is subject to an ongoing process of construction and reconstruction. Considering this plurality, the so-called contemporary conception of human rights is a distinctive one, introduced through the Universal Declaration of , and restated in the Vienna Declaration of Human Rights of This conception is the result of a movement towards the internationalization of human rights, an extremely recent phenomenon that emerged after World War II as a response to the atrocities and horrors committed during the Nazi regime.
Presenting the State as the major violator of human rights, the Hitler Era was characterized by a logic of destruction and expendability of human beings that resulted in the confinement of 18 million individuals in concentration camps, and the death of 11 million, including 6 million Jews, as well as Communists, homosexuals and Gypsies, etc.
The legacy of Nazism made entitlement to rights, that is, the condition of qualifying for rights, contingent on membership of a given race: the pure Aryan race. In the words of Ignacy Sachs , p. It was in this context that the attempt to reconstruct human rights was formulated as an ethical paradigm and benchmark to guide the contemporary international order.
If World War II stood for a breach with human rights, the post-war period had to stand for their reconstruction. The approval of the Universal Declaration of Human Rights on December 10, was the major landmark in the reconstruction of human rights. This declaration introduces the contemporary conception of human rights, characterized by their universality and indivisibility: universality insofar as it calls for the universal extension of human rights in the belief that being human is the sole criterion for entitlement to rights, and considering human beings as essentially moral beings that have an existential uniqueness and dignity; indivisibility, since the guarantee of political and civil rights is a pre-condition for the observance of social, economic and cultural rights, and vice-versa.
When one of these conditions is violated, so are all the others. Human rights thus comprise an indivisible, interdependent and inter-related unity that is capable of associating the list of civil and political rights to the list of social, economic and cultural rights. In this manner, it enshrines an integrated concept of human rights. Examining the indivisibility and interdependence of human rights, Hector Gros Espiell , pp. Only the full recognition of all of these rights can guarantee the real existence of any one of them, since without the effective enjoyment of economic, social and cultural rights, civil and political rights are reduced to merely formal categories.
Conversely, without the reality of civil and political rights, without effective liberty understood in its broadest sense, economic, social and cultural rights in turn lack any real significance. This idea of the necessary integrality, interdependence and indivisibility regarding the concept and the reality of the content of human rights that is, in a certain sense, implicit in the Charter of the United Nations, was compiled, expanded and systematized in the Universal Declaration of Human Rights, definitively reaffirmed in the Universal Covenants on Human Rights approved by the General Assembly in , and in force since , as well as in the Proclamation of Teheran of , and the Resolution of the General Assembly, adopted on December 16, , on the criteria and means for improving the effective enjoyment of fundamental rights and liberties Resolution n.
As the major landmark in the movement towards the internationalization of human rights, the Universal Declaration of promoted the conversion of these rights into an issue of legitimate interest to the international community. As Kathryn Sikkink p. The safety net of international human rights aims to redefine what is exclusively within the domestic jurisdiction of individual states.
In this way, the idea that the protection of human rights should not be the exclusive responsibility of the state is strengthened, i. In turn, this innovative concept points to two important consequences: 1 The revision of the traditional concept of the absolute sovereignty of the state, which has become a more relative notion, to the degree that international intervention in national affairs is permitted in the cause of protecting human rights; i.
These measures thus predict the end of an era in which the state's form of treating its citizens was conceived as a problem of domestic jurisdiction, derived from its own sovereignty. The process of universalizing human rights permitted, in turn, the formation of a normative international system for protecting these rights.
It was nevertheless sufficient for international law to abandon its classical phase, in the form of the law of peace and war, to move on to the new or modern era in its evolution, in the form of an international law of cooperation and solidarity". Starting with the Universal Declaration of and the contemporary conception of human rights that it introduced, International Human Rights Law began to develop through the adoption of many international treaties that aimed to protect fundamental rights.
The Declaration provides axiological support and a unity of values for this area of the law, with an emphasis on the universality, indivisibility and interdependence of human rights. As Norberto Bobbio p.
The process of universalization of human rights has allowed the formation of an international system for protecting these rights. This system has been set up by international protection treaties that above all, reflect a contemporary ethical conscience that is shared among states, to the degree that these invoke the international consensus on minimum protective parameters with regard to human rights the "irreducible ethical minimum".
In this sense, it should be emphasized that as of August See Human Development Report, UNDP , the International Covenant on Civil and Political Rights had signatory countries, while the International Covenant on Economic, Social, and Cultural Rights had signatory countries, the Convention against Torture had , the Convention on the Elimination of Racial Discrimination had , the Convention on the Elimination of Discrimination against Women had , and the Convention on the Rights of the Child had the widest membership, with signatory countries.
Side by side with this global normative system, regional systems of protection have emerged that aim to internationalize human rights at regional level, particularly in Europe, the Americas and Africa. There is also an incipient Arab system and a proposal for the creation of a regional system in Asia.
These developments will consolidate the coexistence of the UN's global system with instruments of a regional system that are in turn integrated by the American, European and African systems of protection for human rights. The global and regional systems are therefore not divergent, but complementary. Inspired by the values and principles of the Universal Declaration, they comprise a range of instruments for protecting human rights at international level.
From this point of view, the various systems for the protection of human rights interact on behalf of protected individuals. The proposal for the coexistence of distinct legal instruments that guarantee the same rights is thus consistent with the expansion and strengthening of the protection of these rights. The crucial issue is the degree of efficiency of the protection afforded, for which reason, in real life cases, the rule to be applied is that which ensures the victim the best protection.
In adopting the value of the primacy of the individual, these systems complement each other, interacting with the national protection system in order to provide the greatest possible effectiveness in protecting and promoting fundamental rights.
This is also the logic and the underlying set of principles of International Law of Human Rights itself, which is entirely founded on the supreme principle of human dignity.
The contemporary conception of human rights is characterized by the universalization and internationalization of these rights, which are conceived of as indivisible. The international community should treat human rights globally in a just and equitable way, on an equal basis and with the same emphasis".
In this way, the Vienna Declaration of , signed by states, endorses the universality and indivisibility of human rights, reinvigorating the legitimacy of the so-called contemporary conception of human rights introduced by the Declaration.
It should be noted that as the "post-war" Consensus, the Declaration was adopted by 48 states, with 8 abstentions.
The Vienna Declaration of extends, renews and expands the consensus on the universality and indivisibility of human rights, at the same time as it affirms the interdependence between the values of human rights, democracy and development.
There can be no human rights without democracy, nor democracy without human rights. In other words, the regime that is most compatible with the protection of human rights is the democratic regime. At the present time, states, of the almost states that are part of the international order, hold regular elections. Amartya Sen considers that political rights including freedom of expression and debate are not only fundamental for demanding political responses to economic needs, but are central to the very formulation of these economic needs.
In addition, given the indivisibility of human rights, we must abandon for good the erroneous notion that one class of rights civil and political rights require full recognition and respect, while another class social, economic and cultural rights does not require observance of any kind. From an international normative perspective, the notion that social, economic and cultural rights are not legal rights has been superseded for good.
The idea that social rights are non-actionable is purely ideological and not scientific; they stand out as authentic and genuine fundamental rights that are actionable, demandable and that require serious and responsible observance. For this reason, they should be demanded as rights, and not as gestures of charity, generosity or compassion. Social, economic and cultural rights include protection for vulnerable groups as a central concern.
Fundamental needs must not be made contingent on charity from state programs and policies, but must be defined as rights". An understanding of economic, social and cultural rights also demands recourse to the right to development. It was in this context that "an effort by the Third World to elaborate its own cultural identity, proposing collective rights of cultural identity, such as the right to development", emerged.
For Allan Rosas , pp. Secondly, the Declaration should be conceived in the context of the basic needs of social justice. Thirdly, the Declaration emphasizes both the need to adopt national programs and policies and international cooperation The 2 nd article of the Declaration of the Right to Development of enshrines the principle that: "Human beings are the central subject of development and should be active participants in and the beneficiaries of this right".
The 4 th article of the Declaration adds that states have a duty to adopt measures, whether individually or collectively, that aim to formulate international development policies, with a view to facilitating the full realization of rights, adding that effective international cooperation is essential for providing developing countries with the means to encourage the right to development. The right to development demands a form of globalization that is both ethical and sympathetic. In the understanding of Mohammed Bedjaoui p.
This reflects a crucial question of our age, in so far as four fifths of the world's population no longer accept the fact that a fifth of the world's population continues to build its wealth on the basis of the remainder's poverty".
As Joseph E. Stiglitz p. This has occurred at the same time that total world income increased by an average of 2. Poverty wields its destructive influence at every stage of human life, from the moment of conception to the grave. It conspires with the most deadly and painful diseases to bring a wretched existence to all those who suffer from it" Farmer, p.
To adopt Amartya Sen's conception, development must in turn be imagined as a process of expanding real liberties that individuals can make use of. We would reiterate that the Vienna Declaration recognizes the interdependence between democracy, development and human rights. We thus move to the final reflection. What are the challenges and prospects for the implementation of human rights within the contemporary order?
This question entails six challenges:. Consolidating and strengthening the process of affirming the integral and indivisible vision of human rights, through the conjugation of civil and political rights with economic, social and cultural rights.
Human rights as an "acquired set of values" are undergoing constant elaboration and redefinition. If, traditionally, the human rights agenda focused on the protection of civil and political rights, under the heavy impact of the "voice of the North", we are currently witnessing the expansion of this traditional agenda, which is incorporating new rights, with an emphasis on economic, social and cultural rights, the right to development, the right to social inclusion, and on poverty as a violation of rights.
This process has allowed an echo for "the South's own voice" that is capable of revealing the concerns, demands and priorities of this region. These are necessary advances in the continuous expansion of the conceptual reach of human rights that contemplate the basic needs of social justice. In such a context, it is fundamental to consolidate and strengthen the process of affirming human rights from this integral, indivisible and interdependent perspective.
Incorporating gender, race and ethnicity approaches in the conception of human rights, as well as creating specific policies to protect socially vulnerable groups. The effective protection of human rights demands not only universalistic policies, but also specific, those that target socially vulnerable groups, as the major victims of exclusion. In other words, the implementation of human rights demands the universality and indivisibility of these rights as well as the respect for diversity.
To the process of expanding human rights, we may add the process of specifying the subjects of these rights.
The first phase of protection of human rights was characterized by a general protection, which expressed a fear of difference which under Nazism had been directed towards extermination , based on formal equality. It has nevertheless proven insufficient to treat individuals in a generic, general and abstract form, rendering it necessary to specify the subjects of law, which must be seen in all of their peculiarity and singularity.
From this point of view, certain subjects of law, or certain violations of law, require a specific and differentiated response. From this perspective, among other vulnerable categories, women, children, populations of African descent, migrants and physically disadvantaged individuals must be seen in terms of the specificities and peculiarities of their social condition. Together with the right to equality, the right to difference also arises as a fundamental right.
Respect for difference and diversity, guaranteeing these special treatment, are equally important. According to Paul Farmer p.
What are Economic, Social and Cultural rights?
This essay deals with social, economic and cultural rights and political and civil rights within the context of international law on human rights. To this end, it reviews the contemporary conception of this issue in the light of the international system of protection, evaluating its profile, its objectives, its logic and its principles, and questioning the feasibility of an integrated vision of human rights. This is followed by an evaluation of the main challenges and prospects for the implementation of these rights, claiming that facing this challenge is essential to ensure that human rights will take on their central role in the contemporary order. How to understand the contemporary formulation of human rights. Human rights come into being as and when they are able and required to do so. As Norberto Bobbio emphasizes, human rights do not arise either all at once or for good. To Hannah Arendt, human rights are not given facts, but a construct, a human invention that is subject to an ongoing process of construction and reconstruction.
View My Stats. The national and international economic development raises new problems besides the positive side of finance. International economic recession that has global impacts including in Indonesia presents its own challenges. One of the challenges faced is a serious impact on the fulfillment of economic and social rights. One of the most controversial is the reduction of subsidies in the health, social security, trade and education sectors. The unemployment rate also increased as a direct impact of these economic policies.
Bibliography on adjudication of ESC Rfights by jurisdiction. Proceedings before domestic courts, administrative tribunals, international judicial and quasi-judicial bodies and other legal entities are key avenues through which the implementation of ESCR may be advanced. In other cases, by activating judicial or quasi-judicial bodies evictions have been prevented or children have gained access to schools. Legal actions - especially when complemented with broader social mobilization, political activism and media campaigns - are important tools that may be employed to save or improve the lives of many people. Advocates seeking to litigate ESCR are faced with a number of challenges.
What are Economic, Social and Cultural rights?
However, it is crucial that all human rights, including economic and social rights [i] , guide the implementation of such measures, as we underlined in our recent statement. By keeping human rights at the heart of COVID responses, we can overcome this economic and public health challenge while protecting human dignity. However, partly due to the legacies of austerity policies from the global financial crisis of , which deepened inequalities within and between countries in Europe, health and social security systems are often not adequately equipped to respond to the COVID emergency. In accordance with human rights standards, states must use their maximum available resources to fully realise economic and social rights as expeditiously and effectively as possible. They must avoid retrogressing in service standards, and ensure substantive equality by mitigating disproportionate impacts on those most at risk.
We note that the U. Constitution does not expressly recognize any of the social rights listed in the introduction to this national report, and that American courts and legal scholars are generally skeptical about protecting social rights through constitutional law. All fifty state constitutions recognize the right to education to varying degrees, although only some deem it a fundamental right.
Economic, social, and cultural rights are the freedoms, privileges, and entitlements that individuals and communities require to live a life of dignity. These human rights include the rights to food, housing, health, education, cultural identity, and more. Although some economic, social, and cultural rights cannot be immediately implemented, States that have ratified the relevant treaties nonetheless have the obligation to guarantee these rights.
In recent years there has been a surge of interest in economic, social and cultural rights ESCR and more generally in the intersection of economic development and human rights.