32/31 Report of the Special Rapporteur on extreme poverty and human rights
Document Type: Final Report
Date: 2016 Apr
Session: 32nd Regular Session (2016 Jun)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
Human Rights Council Thirty-second session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on extreme poverty and human rights*
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on extreme poverty and human rights, Philip Alston, prepared
pursuant to Human Rights Council resolution 26/3. In the report, the Special Rapporteur
argues that treating economic and social rights as human rights is essential both for efforts
to eliminate extreme poverty and to ensure a balanced and credible approach in the field of
human rights as a whole. He argues that economic and social rights currently remain
marginal in most contexts, thus undermining the principle of the indivisibility of the two
sets of rights.
Conventional wisdom celebrates the great strides that have been made in recent
years in relation to economic and social rights. At the international level, the Optional
Protocol to the International Covenant on Economic, Social and Cultural Rights has been
adopted, an impressive number of special procedures have been created to focus on these
rights and bodies like the Human Rights Council spend much more time than they once did
debating these issues. At the national level, economic and social rights proponents celebrate
the impressive degree of constitutional recognition of some or most economic and social
rights, the growing capacity of courts in many countries to enforce them, the growth of
national non-governmental organizations working on economic and social rights and the
emergence of a vibrant scholarly literature on the justiciability of those rights.
However, despite important recent progress, the reality is that economic and social
rights remain largely invisible in the law and institutions of the great majority of States. In
support of this proposition, the Special Rapporteur notes that: many of the States whose
Constitutions recognize economic and social rights have not translated that recognition into
a human rights-based legislative framework; the increasingly widespread constitutional
* The present report was submitted after the deadline in order to reflect the most recent developments.
acceptance of the justiciability of economic and social rights contrasts with the resistance of
many of the relevant courts to acting on these rights; many of the States that enjoy the
world’s highest living standards have specifically rejected proposals to recognize economic
and social rights in legislative or constitutional form; most national-level institutional
mechanisms for promoting human rights neglect economic and social rights; and national
economic and social rights accountability mechanisms are generally much rarer than
mainstream accounts would suggest.
The extent to which economic and social rights remain unacknowledged as human
rights is the frequency with which debates about economic and social rights slide
imperceptibly and almost naturally into broad discussions of development. But, in fact,
development initiatives might not be rights-promoting, or even rights-protecting. In the
report, the Special Rapporteur spells out why it matters that economic and social rights be
treated as human rights and examines the ways in which this can be done by outlining the
recognition, institutionalization and accountability (RIA) framework that focuses primary
attention on ensuring recognition of the rights, institutional support for their promotion and
accountability mechanisms for their implementation.
Report of the Special Rapporteur on extreme poverty and human rights
Contents
Page
I. Introduction ...................................................................................................................................... 4
A. Paradoxical status of economic and social rights ..................................................................... 4
B. Treating economic and social rights as human rights .............................................................. 6
C. Structure of the report .............................................................................................................. 6
II. Consequences of neglecting economic and social rights .................................................................. 7
III. Understanding and acting upon States’ economic and social rights obligations .............................. 9
A. Legal recognition ..................................................................................................................... 9
B. Obligation to establish institutions........................................................................................... 11
C. Obligation to promote accountability ...................................................................................... 11
IV. Applying these obligations to economic and social rights ............................................................... 11
A. Legal recognition ..................................................................................................................... 12
B. Institutionalization ................................................................................................................... 13
C. Accountability.......................................................................................................................... 14
V. International monitoring of economic and social rights recognition,
institutionalization and accountability .............................................................................................. 16
A. Universal periodic review ........................................................................................................ 16
B. Committee on Economic, Social and Cultural Rights ............................................................. 17
C. Non-governmental organizations ............................................................................................. 18
VI. Conclusions ...................................................................................................................................... 19
I. Introduction
1. The present report is submitted in accordance with Human Rights Council resolution
26/3. It is the second report submitted to the Council by Philip Alston in his capacity as
Special Rapporteur on extreme poverty and human rights.1
A. Paradoxical status of economic and social rights
2. Strategies to eliminate extreme poverty require efforts to promote the realization of
all human rights, in accordance with the principle of the indivisibility of rights. While
various reports submitted over the years by the Special Rapporteur have dealt with some of
the civil and political rights dimensions of the equation, none has focused explicitly on the
overall economic and social rights component, which is the focus of the present report. The
present report is not typical of those presented to the Council. The former head of the
Department of Peacekeeping Operations characterized United Nations reports as “painfully
boring … in which everything said is factually correct and yet where nothing really
stimulates fresh thinking”.2 Clearly, factually correct reports are crucial, but reports which
additionally stimulate fresh thinking are equally important, and the present one attempts to
be both. The Special Rapporteur argues that, despite a great deal of diplomatic and expert
activity on the issue of economic and social rights,3 as well as an emerging body of case
law and abundant scholarship, those rights nevertheless remain largely invisible in the law
and institutions of the great majority of States.
3. This assessment sits most uneasily with the conventional wisdom that celebrates
huge strides in recent years in relation to economic and social rights, including through
their widespread constitutional recognition, and in the growing capacity of courts in many
countries to enforce them. Thus, for example, it has been claimed that “the global language
of human rights, and of economic and social rights in particular, pervades progressive
politics around the world”.4 Those same authors describe how the demands of many
different types of vulnerable and displaced communities are being pursued as judicial
claims thanks to the opportunities opened up by the recognition of economic and social
rights.
4. It is true that, in recent years, the process of including economic and social rights in
constitutional provisions has proceeded apace, courts in a range of countries have generated
some valuable case law, the Optional Protocol to the International Covenant on Economic,
Social and Cultural Rights has been adopted and some final Views have already been
issued, special procedures have been created to deal with many of the economic, social and
cultural rights, and international human rights bodies have devoted far more time to
1 The Special Rapporteur is very grateful to Christiaan van Veen and Varindarjit Singh for their
excellent assistance with the report and to Gráinne de Búrca, Sandra Liebenberg and Nikki Reisch for
their comments.
2 Jean-Marie Guéhenno, The Fog of Peace: A Memoir of International Peacekeeping in the 21st
Century (Washington, D.C., Brookings Institution Press, 2015), p. xiv.
3 The present report focuses specifically on economic and social rights. While cultural rights are
closely related to economic and social rights and are covered under the same Covenant, they also
have a number of distinctive characteristics that warrant a somewhat different approach than the one
adopted here.
4 Daniel M. Brinks, Varun Gauri and Kyle Shen, “Social rights constitutionalism: negotiating the
tension between the universal and the particular”, Annual Review of Law and Social Science, vol. 11
(November 2015), pp. 289-290.
debating such rights than they once did. But there remains a fundamental paradox because,
at the same time:
(a) Many of the States whose Constitutions recognize economic and social rights
have not translated that recognition into a human rights-based legislative framework;
(b) The increasingly widespread constitutional acceptance of the justiciability of
economic and social rights stands in direct contrast to the resistance of many of the relevant
courts to acting on these rights;
(c) Many of the States that enjoy the world’s highest living standards have
specifically rejected proposals to recognize economic and social rights in legislative or
constitutional form;
(d) With few exceptions, the principal national-level institutional mechanisms
for promoting human rights devote almost no attention to economic and social rights;
(e) National economic and social rights accountability mechanisms are generally
much rarer than mainstream accounts would suggest.
5. The paradox is deepened by the fact that, at the international level in particular, both
intergovernmental bodies and civil society actors continue to generate detailed and lengthy
interpretations of economic and social rights provisions (especially through general
comments and general recommendations), as well as principles, guidelines,
recommendations, handbooks, guiding principles, manuals and blueprints designed to help
Governments and other actors to better understand the nature and scope of States’ economic
and social rights obligations. While this impressive and enlightening output has greatly
strengthened the ability of civil society actors to advocate more effectively for economic
and social rights, the question is whether, in national contexts in which economic and social
rights do not enjoy legislative recognition, where national institutions do not effectively
monitor and promote such rights and where meaningful accountability and participation
mechanisms have not been established, conditions are such that a meaningful governmental
response is likely to be triggered. The anticipated response to this critique is that the main,
or at least initial, targets of the new activism are civil society actors and that they can be
aided, empowered and even mobilized despite governmental inaction. But this response
would be disingenuous if it implies that civil society actors alone can bring about the deep
societal change that is required if economic and social rights are to be taken seriously as
human rights.5
6. At the end of the day, the most telling evidence of the extent to which economic and
social rights remain unacknowledged as human rights is the frequency with which debates
about them slide imperceptibly and almost naturally into broad discussions of development.
States challenged to explain how they respect economic and social rights will describe
general development or social welfare initiatives as though they are necessarily
synonymous with such rights. And development cooperation budgets often assume that, as
long as an equality or poverty alleviation dimension is included, a project can be considered
as promoting economic and social rights. But, in fact, development initiatives might not be
rights-promoting or even rights-protecting, and even when they are both, they may well end
up promoting the special interests of a targeted group rather than economic and social rights
as human rights.
7. The risk of eliding two potentially very different approaches also arises when the
2030 Agenda for Sustainable Development and its Sustainable Development Goals is
automatically equated with the promotion of respect for economic and social rights. While
5 Marc Verdussen, ed., Les droits culturels et sociaux des plus défavorisés (Bruxelles, Bruylant, 2009).
it is very much to be hoped that the 2030 Agenda will indeed lead to greater respect for
economic and social rights as human rights, this is by no means guaranteed by the terms of
the Agenda as adopted and much remains to be done if that aspiration is to be meaningfully
promoted.
B. Treating economic and social rights as human rights
8. This report emphasizes the importance of treating economic and social rights as
human rights, rather than as desirable goals, development challenges, social justice
concerns or any of the other formulations that are invariably preferred. The pre-eminent
question is whether it really matters that we treat economic and social rights as human
rights. One answer is that the use of rights terminology is avoided so assiduously by
governments and others precisely because it does matter very much and makes a big
difference. How so? First, the use of the human rights framework ensures that in the midst
of programmes designed to ensure collective well-being, the rights of the individual and not
just the overall goals of the programme and the interests of the collectivity are taken into
account. Second, in contrast to generic social justice language which has no defined content
or agreed meaning, human rights discourse directs policymakers and others back to the
internationally agreed formulations of economic and social rights and the jurisprudence that
has painstakingly evolved. Third, treating economic and social rights as human rights rather
than long-term goals introduces an element of immediate salience which might otherwise
not be present. Fourth, and perhaps most importantly, the language of rights recognizes and
insists on the dignity and agency of all individuals (regardless of race, gender, social status,
age, disability or any other distinguishing factor) and it is intentionally empowering.
Whether in the home, village, school or workplace, or in the political marketplace of ideas,
it makes a difference if one is calling for the realization of collectively agreed and
internationally recognized and defined rights to housing or education, rather than merely
making a general request or demand. Moreover, as noted earlier, the legal conception of
human rights presupposes and demands accountability, whereas characterizing economic
and social rights in terms of desirable goals or development challenges leaves them hostage
to a great many other considerations.
C. Structure of the report
9. In the present report, the Special Rapporteur identifies the problematic consequences
that flow from the second-tier status of economic and social rights within both the domestic
and international human rights systems. He then reflects on the ways in which economic
and social rights can be treated as though they really are human rights and what that would
mean. He does this primarily through the lens of the recognition, institutionalization and
accountability (RIA) framework. These are the three essential components of any
potentially effective strategy for promoting economic and social rights as human rights, and
policies and programmes that neglect these dimensions are unlikely to be effective.
Consideration is given to the extent to which the framework is reflected in some of the
monitoring activities undertaken by the Human Rights Council, the Committee on
Economic, Social and Cultural Rights and international non-governmental organizations
(NGOs). The Special Rapporteur concludes the report by noting that the RIA framework is
not a magic bullet, nor should it be seen as a substitute for other initiatives in the field, and
highlighting the need to acknowledge and tackle the deeper reasons for the continuing
marginalization of economic and social rights.
II. Consequences of neglecting economic and social rights
10. During the Cold War years, deep ideological divisions ensured that economic and
social rights were given very limited attention. It was not until 1987 that the Committee on
Economic, Social and Cultural Rights was established by the Economic and Social Council,
a development that certainly helped to trigger considerable progress. Partly as a result, 171
States proclaimed at the World Conference on Human Rights in 1993 that:
All human rights are universal, indivisible and interdependent and interrelated. The
international community must treat human rights globally in a fair and equal
manner, on the same footing, and with the same emphasis.6
11. In addition to highlighting the intrinsic linkages among all rights, the principal
significance of this bold assertion was to signal that economic, social and cultural rights are
as important as civil and political rights and must be accorded equal attention. And the past
quarter of a century has indeed seen a great number of important initiatives, especially in
sectoral areas such as the right to housing, the right to food, the right to health and the right
to water, and more consistent tribute being rendered to the principle of indivisibility. But
acceptance in law and in practice of the idea that economic and social rights are actually
human rights, with the set of clear legal consequences that this entails, rather than a set of
concerns synonymous with development or social progress, remains marginal. This
marginality manifests itself in the work of United Nations human rights bodies, in both the
theory and practice of the great majority of States, in the work of many of the most
prominent civil society groups focusing on human rights, in the interests and priorities of
scholars and commentators and, perhaps most counter-intuitively, even in the work of most
international agencies promoting poverty alleviation and social development. As a result,
the principal of indivisibility continues to be honoured more in the breach than in the
observance.
12. Some will contest this assessment, while others will suggest that the difference in
attention and in the practical legal recognition accorded to the two sets of rights — civil and
political rights on one hand, and economic, social and cultural rights on the other — does
not really matter. In fact, it matters a great deal, and for a number of reasons. The most
basic is philosophical, in the sense that it is agreed that the two sets of rights are
indispensable elements in enabling individuals to live dignified and fulfilling lives. It is also
important for doctrinal reasons. The equal status of the rights recognized in the Universal
Declaration of Human Rights reflects a hard-fought ideological and political compromise,
not only between capitalist and communist approaches in the 1940s, but between
continuing differences in perception over what societies should value most and the terms of
the social contract between the State and its inhabitants. It is the glue that has held the
package together and the understanding that enables the reconciliation of otherwise starkly
competing visions. It reflects the need to achieve an equilibrium among goals that will
inevitably always be in tension with one another. Whether the equal importance of the two
sets of rights can also be demonstrated empirically is a matter over which economists and
others have long duelled, and instrumentalist arguments continue to be heavily relied upon
in making the case for goals such as gender equality. But, regardless of the conclusions that
might emerge from such research, the validity of the underlying principle cannot be held
hostage to the uncertainties of empirical analyses.
13. The widespread persistence of extreme poverty, despite the progress made in recent
years, serves to highlight the central importance of the struggle to achieve economic and
6 Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in
Vienna on 25 June 1993, para. 5.
social rights. Many hundreds of millions of people continue to suffer from extreme poverty,
and by no means only in the poorest countries, in what is a grave affront to any notion of
universal human rights. While such poverty is a phenomenon that fundamentally
undermines most, if not all, civil and political rights, its most obvious and brutal
manifestation is in the premature deaths and severely deprived lives that result from the
denial of economic and social rights. While it is true that many developed and a few
developing States have radically diminished extreme poverty without adopting a strategy
based on the recognition of economic and social rights, experience more broadly suggests
that the failure to take those rights seriously diminishes the prospects for eliminating
extreme poverty, even in contexts where overall economic growth levels are high.
14. It is not just the world’s poorest citizens who are at risk. The capitalist system,
which has become the dominant global economic system, is “a tremendously powerful
system … in terms of sheer productivity, innovation and dynamism”, but it is ultimately
unsustainable unless the excesses and predations that are built into the way it functions are
tempered by systems that ensure the basic welfare of the many who would otherwise be
victims of the “uncertainty, instability and anti-social effects generated by capitalist
processes”.7
15. Economic and social rights are also of central importance to efforts to tackle extreme
inequality and its consequences. The thoroughly documented increases in global wealth and
income inequality threaten to undermine the social fabric, to turn civil and political rights
into a tool that will be used predominantly to protect the rights and interests of the wealthy
and to entrench forms of economic and political liberalism that ignore the needs and deny
the rights of those living in poverty. In many respects, the approach currently taken by the
international human rights system all but ensures the worst of all possible outcomes. On the
one hand, the correct approach insists that economic and social rights are indivisible from,
and of equal importance to, civil and political rights, thus suggesting that they can provide a
meaningful response to extreme poverty, extreme inequality and other forms of rampant
social injustice. On the other hand, the international human rights system systematically
marginalizes those rights in many respects, and tolerates a situation in which the majority
of States avoid the recognition, institutionalization and accountability that alone can
establish solid foundations upon which to build respect for economic and social rights as
full-fledged human rights and thus provide powerful and principled arguments to reduce
levels of inequality.
16. More sustained and meaningful attention to economic and social rights is also
increasingly recognized as an indispensable component of effective and comprehensive
counter-terrorism strategies in many contexts. The Special Rapporteur on the promotion
and protection of human rights while countering terrorism has consistently drawn attention
to the extent to which societies characterized by economic, social, political and educational
exclusion are often breeding, or recruitment, grounds for terrorism.8 And the Secretary-
General included in his Plan of Action to Prevent Violent Extremism a lack of
socioeconomic opportunities, as well as marginalization and discrimination, among the
conditions conducive to violent extremism.9
17. A strong case is also to be made for attributing the resurgence of right-wing
populism, at least in some of the many countries in which it is occurring, to the growth of
inequality and the widespread neglect or denial of economic and social rights.
7 For a powerful argument to this effect, see David Garland, The Welfare State: A Very Short
Introduction (Oxford, Oxford University Press, 2016), p. 137.
8 See A/HRC/20/14, para. 31; also A/HRC/6/17, para. 64
9 See A/70/674, paras. 24-26.
18. There is also the question of the legitimacy of the overall human rights enterprise.
The economic and social rights framework is increasingly portrayed by critics as being
toothless and ineffectual and bringing small or no returns in terms of social justice. Based
on such critiques, commentators have argued that only a radically different, non-human
rights-based, language could meaningfully address these challenges, that economic and
social rights mandates are diverting resources away from the rights that matter, that only
political parties and social movements and not human rights groups have the potential to
achieve social justice objectives, and that free markets and private enterprise hold the key to
economic and social rights in the wake of clear governmental failures in this domain.
19. Closely linked to this loss of legitimacy is a loss of credibility in the eyes of rights
holders. The second-class status of economic and social rights has deeply negative
consequences for the potential of the human rights movement to gain the widespread
support that it needs in order to establish its credibility in the eyes of the literally billions of
people whose fundamental needs continue to be of only minor relevance to the core human
rights agenda. The fact that the movement is subject to powerful challenges at the global
level is due in significant part to the perception that its overriding preoccupations do little
or nothing to address the most abiding and pressing challenges confronted by a large part of
humanity.
III. Understanding and acting upon States’ economic and social rights obligations
20. States’ obligations under human rights treaties are described in different ways in
different treaties. In civil and political rights contexts, the obligation is to respect and to
ensure, whereas economic, social and cultural rights standards reflect an obligation to
recognize the rights and take steps to realize them progressively. In spelling out those
obligations, international bodies and commentators have commonly identified duties to
protect, respect and fulfil.
21. However, in the 50 years since the International Covenant on Civil and Political
Rights and the International Covenant on Economic, Social and Cultural Rights were
adopted, extensive experience has been gained at both the international and national level,
which enables us to identify the key ingredients in successful approaches to the recognition
and implementation of human rights obligations. Three are of particular salience in relation
to economic and social rights: (a) the need to accord legal recognition to the rights; (b) the
need for appropriate institutional arrangements to promote and facilitate realization of the
rights; and (c) the need for measures that promote governmental accountability. This can be
termed the recognition, institutionalization and accountability framework, or the RIA
framework, and its implications for economic and social rights are considered below.
A. Legal recognition
22. The International Covenant on Economic, Social and Cultural Rights contains three
principal types of obligation. The first, and the most consistently ignored or underestimated,
is the obligation to recognize each of the particular rights. The second is to take steps
through all appropriate means, including particularly the adoption of legislative measures.
The third is the obligation to “guarantee” the exercise of the relevant rights without
discrimination.
23. In terms of the obligation to recognize, the Committee on Economic, Social and
Cultural Rights has noted that, in many instances, legislation is highly desirable and in
some cases may even be indispensable.10 It subsequently added that, although the precise
method by which Covenant rights are given effect in national law is a matter for each State
party to decide, the means used should be appropriate in the sense of producing results
which are consistent with the full discharge of its obligations by the State party.11
24. Much of the literature on economic and social rights has focused on the extent to
which these rights have actually been recognized not in legislation, but through
constitutional entrenchment, which is consistently assumed to be a far more significant
step. While that is important, it has not been considered by the Committee to be an
indispensable element, especially because of the great variety of State constitutional
traditions and approaches. In any event, constitutional recognition will generally need to be
supplemented by legislation. The question that then arises is, under what circumstances
would legislation not be required? In part the answer will depend on the legal system in
question, so that a State that makes extensive use of decrees or regulations or some other
form of instrument that is not considered to be legislative in nature might be able to
demonstrate that it meets the legal recognition requirement in an appropriately formal and
legally meaningful way, even in the absence of legislation. But such cases are likely to be
relatively rare.
25. In the light of what appears to be the relatively common State practice of not giving
explicit legislative recognition to individual economic and social rights, the most important
question is whether legislation, or an equivalent form of legal instrument, can be dispensed
with altogether by a State that claims to be fulfilling its obligations through other means. In
practice, the argument will usually be that legislation has been adopted in relation to the
issue or sector in question, and it is unnecessary for any reference to be made in that
legislation to the relevant human right. In other words, to take the example of the right to
food, the argument would be that it is sufficient that there is legislation in place that
addresses food safety or food security, even though it reflects no explicit rights dimension.
Or, in the case of the right to education, laws dealing with the establishment of educational
institutions are considered sufficient, even if there is no acknowledgement that education is
a human right.
26. In support of the view that specific recognition is not required, it might be argued
that if a treaty envisages such recognition, it would say so explicitly. Thus treaties dealing
with torture, genocide, war crimes or crimes against humanity call not just for legislative
recognition of the norm, but also for explicit criminalization of particular conduct. The
Convention on the Elimination of All Forms of Discrimination against Women
unequivocally requires States parties “to embody the principle of the equality of men and
women in their national constitutions or other appropriate legislation” (art. 2 (a)). It further
obliges them “to ensure, through law and other appropriate means, the practical realization
of this principle.”
27. Nonetheless, aside from the clear position that the relevant Committee has taken in
its general comments, it is difficult to understand how the obligations to “recognize” the
rights, and to “guarantee” non-discrimination, could possibly be achieved in the absence of
targeted legislative or equivalent measures. As stated in the Basic Principles and Guidelines
on the Right to a Remedy and Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International Humanitarian Law, the general
10 See the Committee’s general comment No. 3 (1990) on the nature of States parties’ obligations,
para. 3.
11 See general comment No. 9 (1998) on the domestic application of the Covenant, para. 5.
principle is that States shall, as required under international law, ensure that their domestic
law is consistent with their international legal obligations by, inter alia, incorporating norms
of international human rights law into their domestic law, or otherwise implementing them
in their domestic legal system.12 The key element here is the recognition of the norm itself,
not merely the adoption of measures that are pertinent to the subject-matter of the norm.
B. Obligation to establish institutions
28. Human rights are often expressed with great brevity and little or no elaboration as to
their content or corresponding obligations. The relevant treaties simply recognize that there
is a right to life, a right to social security or a right to recognition as a person before the
law. But the assumption underpinning this approach is that institutions will be created and
will help to develop the normative content of the relevant right, promote its implementation
and facilitate its realization. In Spanish, the term institucionalidad is sometimes used to
denote the institutional arrangements that are needed to underpin the rule of law and human
rights. Where no institutions are designated to take the lead in implementing a particular
human right, the likelihood is that little will be done to treat it as a human right per se. This
is especially the case in relation to economic and social rights.
C. Obligation to promote accountability
29. The principle of accountability provides the overarching rationale for the
establishment of an international human rights regime. It operates at two levels. One
involves State accountability to the international community, which has been promoted
through the creation of monitoring mechanisms such as the Committee on Economic,
Social and Cultural Rights and the universal periodic review process, and through regional
mechanisms. The other involves ensuring that governments are accountable to their citizens
and other rights holders. The right to a remedy is recognized in the Universal Declaration of
Human Rights and international human rights law has attached particular importance to
developing an understanding of the right to adequate, effective, prompt and appropriate
remedies, including reparations. Remedies have also been highlighted in transitional justice
contexts. In relation to economic, social and cultural rights, the Committee on those rights
has stated in its general comment No. 9 that “appropriate means of redress, or remedies,
must be available to any aggrieved individual or group, and appropriate means of ensuring
governmental accountability must be put in place” (para. 2).
IV. Applying these obligations to economic and social rights
30. In recent years, there has been great progress in the attention devoted, at both the
national and international levels, to economic and social rights. In terms of scholarship, a
“renaissance” of economic and social rights is said to have occurred, leading to a
“burgeoning” literature.13 In terms of legal developments, a typical account noted as
follows:
ESC rights have gained increased acceptance in international law and comparative
jurisprudence. This is evident in an array of new treaties and resolutions and the
12 See General Assembly resolution 60/147, annex, para. 2.
13 Courtney Jung, Ran Hirschl and Evan Rosevear, “Economic and social rights in national
constitutions”, American Journal of Comparative Law, vol. 62, No. 4 (December 2014), p. 1043.
adoption of international complaint mechanisms that cover ESC rights…. This has
been accompanied by a rise in regional and national adjudication of ESC rights.14
31. Another very positive account argues that “the broad normative framework of ESC
rights has attained a high degree of specificity in terms of content as well as efficacy of
implementation mechanisms, most importantly at the national level”.15
32. However, any assessment of progress made needs to begin by acknowledging that
the starting point was one of essential neglect. The key question is thus not quantitative, but
qualitative, in nature. Have the many developments led to economic and social rights being
taken seriously in the actual practice of governments and other major actors, and have the
foundations been laid for continuing strength in the future? This is where the RIA
framework is central. In the next section, consideration is given to how much progress has
been made at the national level in relation to each of the three dimensions of recognition,
institutionalization and accountability.
A. Legal recognition
33. It has been suggested that “countries are choosing social rights constitutionalism
over other ways to promote well-being and the fulfilment of basic human needs”.16 A
systematic and detailed study of economic and social rights in national constitutions
provides detailed evidence to support this optimistic assessment; 195 constitutions were
examined with a view to identifying which of 16 separate economic and social rights were
recognized and, where they were recognized, whether the constitutions classified them as
justiciable or aspirational (such as directive principles of State policy). Over 90 per cent of
the Constitutions recognized at least one economic and social right. In around 70 per cent
of the Constitutions, at least one economic and social right was explicitly justiciable and
around 25 per cent of them recognized 10 or more justiciable economic and social rights. In
order of frequency, the justiciable rights concerned education, trade unions, health care,
social security, child protection and environmental protection. The study found that those
six rights appear in over half of all Constitutions.17
34. While the present report cannot do justice to the richness of these survey findings, it
is clear that impressive levels of constitutional recognition have been achieved and that
many more economic and social rights are considered to be justiciable, and in many more
countries, than was previously thought to be the case. However, if it turns out that the
practical consequences of such constitutional recognition have been very limited, there
would be much less to celebrate and attention would need to be focused on supplementary
or alternative approaches. Thus an assessment of the significance of these findings requires
a careful examination of the empirical consequences of constitutional recognition in terms
of enhanced accountability and improved levels of realization of economic and social
14 Malcolm Langford and others, “Introduction – An emerging field,” in Global Justice, State Duties:
The Extraterritorial Scope of Economic, Social and Cultural Rights in International Law, Malcolm.
Langford and others, eds. (Cambridge, United Kingdom, Cambridge University Press, 2014), p. 7.
15 Eibe Riedel, Gilles Giacca and Christophe Golay, “Introduction – The development of economic,
social and cultural rights in international law,” in Economic, Social and Cultural Rights in
International Law: Contemporary Issues and Challenges, Eibe Riedel, Gilles Giacca and Christophe
Golay, eds. (Oxford, Oxford University Press, 2014), p. 3. See also Gregor T. Chatton, Vers la pleine
reconnaissance des droits économiques, sociaux et culturels (Zurich, Schulthess Verlag, 2014).
16 Brinks, Gauri and Shen, “Social rights constitutionalism” (see footnote 4), p. 291.
17 Jung, Hirschl and Rosevear, “Economic and social rights in national constitutions” (see footnote 13),
p. 1053.
rights. The main challenges in this regard are considered in the section below on
accountability.
35. Although the topic cannot be dealt with in the present report, it should also be noted
that the constitutional recognition of economic and social rights may well be overshadowed
or undermined by parallel and far more effective processes involving the constitutional and
legal enshrinement of austerity measures.18 This refers primarily to the use of regional
integration, bilateral and multilateral trade and investment agreements, or international
financing arrangements, to privilege competing interests that effectively trump human
rights considerations.
B. Institutionalization
36. In terms of institutions for the promotion of economic and social rights, scholars and
others have focused almost all of their attention in recent years on courts. The impact of
courts will be examined below, under the rubric of accountability. Judicial enforcement is
not the same, however, as institutional promotion. The courts are not equipped, and are
understandably not willing, to perform the roles required to promote the deeper
understanding of economic and social rights and their implementation by diverse
governmental and other agencies.
37. In considering which institutions are most likely to be best placed to promote
knowledge and understanding of economic and social rights at the domestic level, two
types of actors seem most relevant. The first being the government agencies that are
responsible for making and implementing policy in the relevant sectors. Thus, government
ministries dealing with education, social protection, health, nutrition and so on might be
expected to take the lead in promoting a rights-based understanding. This is not to argue, as
is sometimes suggested in the literature on rights-based approaches to development, that
everything these ministries do should be guided by and seen through the lens of human
rights.19 Nonetheless, one might expect the ministry of education, for example, to
acknowledge that there is a right to education and to spell out what that means in specific
policy terms. While it is well beyond the scope of this report to explore how common such
an approach is among sectoral ministries in most countries, it can be said by way of
generalization that the phenomenon is not common. There are some indications that the
health sector might be moving more in that direction under the impetus of the movement
for universal health coverage. Similarly, social security is increasingly seen in terms of the
right to social security as a result of the Social Protection Floor Initiative.
38. The second type of institutional actor that could be expected to play a key role in
promoting economic and social rights is national human rights institutions, of which there
are now almost 120. In 1998, the Committee on Economic, Social and Cultural Rights
called upon national human rights institutions to take a more active role in the promotion of
economic and social rights.20 The most detailed scholarly study of those institutions yet
18 Stephen McBride, “Constitutionalizing austerity: taking the public out of public policy”, Global
Policy, vol. 7, No. 1 (February 2016), p. 5.
19 For a powerful but nuanced argument as to how a country’s national health system “enshrines and
communicates values in the overall society and is not merely a technical apparatus for the delivery of
goods and services”, see Alicia Ely Yamin, Power, Suffering and the Struggle for Dignity: Human
Rights Frameworks for Health and Why They Matter (Philadelphia, University of Pennsylvania Press,
2016), p. 236.
20 See the Committee’s general comment No. 10 (1998) on the role of national human rights institutions
in the protection of economic, social and cultural rights.
undertaken concludes that, if they “can be faulted as a group for one thing, it is an
insufficient challenge to the material conditions that perpetuate human rights violations”.21
Specialist studies indicate that while a handful of such institutions have devoted significant
attention to economic and social rights,22 the vast majority have not. The reasons cited
include absent or restrictive mandates, lack of expertise, lack of resources, absence of
political support and the complexity of the issues. The bottom line is that few of these
“institutions are producing regular, comprehensive reports on ESC rights fulfilment in their
countries”.23
39. A key factor in explaining this fundamentally unbalanced approach may be the
relative absence in the work of many national human rights institutions of genuinely
consultative approaches that would enable the affected communities to influence priorities
and approaches and participate in developing policy responses and recommendations.
C. Accountability
40. Many books have now been written extolling the virtues of involvement by the
courts in enforcing economic and social rights in various countries around the world, but
justiciability is by no means the whole story. Indeed, it might be argued that the focus on
justiciability has become the tail that is wagging the analytical dog. Rights holders can seek
accountability through many means, including: (a) sharing information with the media; (b)
using community or peer pressure; (c) collecting and publishing data; (d) complaining to an
authoritative body or person; and (e) evaluating and reporting.24 However, most of these
methods assume that, at the end of the day, there will be a mechanism in place to which the
claim can ultimately be brought for vindication in the absence of self-correction by the duty
holder.25
41. All three branches of government offer potential accountability mechanisms for
economic and social rights claims. The legislature is, of course, central in terms of its
ability to adopt legislation that mandates attention to such rights or that responds to
violations. There have also been important initiatives in terms of establishing parliamentary
human rights committees and institutionalizing review of draft legislation to ensure
compliance with human rights law. In terms of the executive, government officials can
monitor economic and social rights realization and incorporate those rights into
policymaking and implementation mechanisms. State agencies are also often a logical locus
for complaints mechanisms, although they remain strongly underresearched in the
economic and social rights field. While national human rights institutions are potentially
21 Sonia Cardenas, Chains of Justice: The Global Rise of State Institutions for Human Rights
(Philadelphia, University of Pennsylvania Press, 2014), p. 360.
22 See Asia Pacific Forum for National Human Rights Institutions and the Center for Economic and
Social Rights, Defending Dignity: A Manual for National Human Rights Institutions on Monitoring
Economic, Social and Cultural Rights (January 2015); and Eva Brems, Gauthier de Beco, Wouter
Vandenhole, eds., National Human Rights Institutions and Economic, Social and Cultural Rights
(Mortsel, Belgium, Intersentia, 2013).
23 Alison Corkery and Duncan Wilson, “Building bridges: national human rights institutions and
economic, social and cultural rights”, in Economic, Social and Cultural Rights in International Law
(see footnote 15), pp. 473-490.
24 United Nations Children’s Fund, Accountability for Children’s Rights: A research mapping of local
and informal accountability mechanisms (December 2015), p. 7, available at www.unicef.org/
policyanalysis/rights/files/ACR-SPREADS-WEBFILE.pdf.
25 Varun Gauri, “Redressing grievances and complaints regarding basic service delivery”, World
Development, vol. 41 (January 2013), p. 109.
relevant, studies indicate that they have played a very minor role, not just in terms of
economic and social rights promotion, as noted above, but also in achieving accountability.
The main exception in that regard relates to the role of ombuds institutions, which could be
much more engaged on matters of economic and social rights than they are, even though
their powers generally fall short of being able to provide direct remedies.
42. Because of the relative inactivity of these other actors, studies of economic and
social rights accountability have focused overwhelmingly on the courts and on the extent to
which the increasing constitutional recognition noted above has enabled them to play an
active role in upholding economic and social rights. It is open to question whether this
emphasis accurately reflects the main trends in economic and social rights accountability or
whether it is due more to the lawyers’ preference for studying courts. It might also be
linked to the determination of economic and social rights proponents in the era of post-Cold
War constitutional revitalization to respond to the often heard, but highly reductionist,
proposition that “if one is to talk meaningfully of rights, one has to discuss what can be
enforced through the judicial process”.26 In response, economic and social rights proponents
have sought legitimacy by seeking to demonstrate that economic and social rights resemble
civil and political rights, at least in this key respect.
43. In the limited space available in the present report, it is impossible to undertake a
systematic review of the experience, to date, with justiciability, but some broad conclusions
emerge from the voluminous and often excellent literature.27
44. First, constitutional recognition on its own means relatively little in practical terms.
Hence the distinction drawn by Katharine Young between constitutionalizing and
constituting economic and social rights, according to which the latter goes well beyond
constitutional recognition, to require that the rights are actually effective within the legal
system.28 For example, a study on the right to health in Africa begins by celebrating the fact
that “from Africa to Asia, Europe and even South America, cases relating to the violation of
the right to health are constantly being brought before the courts”.29 Yet, in the study it is
shown that, in the African context, South Africa is the only country in which there has been
systematic litigation of this sort. Malcolm Langford was correct when he observed that,
“the scope for formal judicial review of ESC rights is rather limited outside the use of civil
rights or international mechanisms”.30
45. Second, even when economic and social rights are both constitutionally recognized
and justiciable, there are many factors that can limit the resulting outcomes. Lawyers might
26 Aryeh Neier, “Social and economic rights: a critique”, Human Rights Brief, vol. 13, No. 2 (2006),
p. 1.
27 Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and
Comparative Law (Cambridge, United Kingdom, Cambridge University Press, 2008); Colleen M.
Flood and Aeyal Gross, eds., The Right to Health at the Public/Private Divide: A Global Comparative
Study (Cambridge, United Kingdom, Cambridge University Press, 2014); Alicia Ely Yamin and Siri
Gloppen, eds., Litigating Health Rights: Can Courts Bring More Justice to Health? (Cambridge,
Massachusetts, Harvard University Press, 2011); Diane Roman, “La justiciabilité des droits sociaux
ou les enjeux de l’édification d’un État de droit social”, La Revue des Droits de l’Homme, vol. 1
(2012), available at http://revdh.revues.org/635.
28 Katharine G. Young, Constituting Economic and Social Rights (Oxford, Oxford University Press,
2012), p. 6.
29 Ebenezer Durojaye, “Introduction – The relevance of health rights litigation in Africa”, in Litigating
the Right to Health in Africa: Challenges and Prospects, Ebenezer Durojaye, ed. (London, Routledge,
2015).
30 Malcolm Langford, “Judicial review in national courts: recognition and responsiveness”, in
Economic, Social and Cultural Rights in International Law (see footnote 15), p. 423.
not invoke such rights, a lack of resources and the absence of legal aid might make it
impossible for many violations of economic and social rights to be litigated and potential
applicants might be denied standing to sue. Even when cases get to court, the judiciary
might not be independent, the judicial culture might not be amenable to scrutinizing the sort
of issues raised by economic and social rights and the remedies available might be so weak
as to deter such litigation.
46. Third, the literature does not pay much attention to the existence of implementing
legislation designed to promote realization of a specific right as a human right, whether or
not there is constitutional recognition. In countries like South Africa, there is very extensive
legislation (such as the Water Services Act, 1997) designed to promote or implement
economic and social rights and this often plays a key role in constitutional litigation. But in
most other countries, such legislation seems to be rare, certainly outside of the education
and health sectors.
47. Fourth, although some of the databases of economic and social rights case law
around the world are impressive, the total number of cases is still rather limited. While
individual cases have arisen in many jurisdictions, the reality is that in only a handful of
jurisdictions have the courts generated a body of significant case law. Among the most
notable of these are Colombia, India, Kenya, South Africa and state-level courts in the
United States of America (in relation to the right to education).
48. Fifth, the implementation of positive judicial outcomes and the search for more
creative remedies have been “an analytical and practical blind spot”.31
V. International monitoring of economic and social rights recognition, institutionalization and accountability
49. In monitoring civil and political rights, both the Human Rights Council and the
treaty bodies have played a crucial role in encouraging States to focus on the recognition,
institutionalization and accountability dimensions of those rights. It is much less clear,
however, that they have played a comparable role in relation to economic and social rights.
While the Council addresses economic and social rights in many different contexts, and
especially through the work of its special procedures, perhaps the best indication of its
approach can be gleaned from the universal periodic review process. In terms of the work
of the treaty bodies, the most important in this context is the Committee on Economic,
Social and Cultural Rights. The approach adopted with regard to recognition,
institutionalization and accountability in each of these settings is examined briefly below.
A. Universal periodic review
50. Because of its universality and its integrated approach to the human rights agenda,
the universal periodic review process is an especially important indicator of governmental
concerns and priorities. A thorough review of the operation of the process since its
inception raises concern about both the quantity and quality of economic, social and
cultural rights-related recommendations. Only one out of five recommendations adopted
have been specifically concerned with economic, social and cultural rights. Only 11 per
cent of the recommendations put forward by the regional group that have made, by far, the
31 César Rodríguez-Garavito and Diana Rodríguez-Franco, Radical Deprivation on Trial: The Impact of
Judicial Activism on Socioeconomic Rights in the Global South (Cambridge, United Kingdom,
Cambridge University Press, 2015), p. 8.
most recommendations overall dealt with economic, social and cultural rights. For other
regions, the figures were 20 to 30 per cent. Even more problematic, two thirds of the
recommendations relating to economic, social and cultural rights called for only general
action, as opposed to any specific outcome.32 These results are consistent with the Special
Rapporteur’s own survey, which indicated that up and including the twenty-second session
of the Human Rights Council, 1,031 economic and social rights-related recommendations
had been made. Of these, over 20 per cent called for ratification of the Covenant or the
Optional Protocol, or withdrawal of reservations made at the time of ratification. Thirty-
three recommendations called for greater cooperation with United Nations bodies working
on economic, social and cultural rights; 182 called for legislative action on one or more
specific economic and social rights, but almost none of these focused on specific legislative
recognition of economic and social rights as human rights. Only 13, or 1.26 per cent, of the
relevant recommendations specifically requested a State to take measures to guarantee the
status of economic, social and cultural rights through constitutional amendments, enactment
of legislation or by giving national courts jurisdiction to provide remedies for economic and
social rights violations.
51. The main conclusion to be drawn for the purposes of the present report is that,
insofar as the universal periodic review is an accurate indicator, States attach very limited
importance to the recognition, institutionalization and accountability dimensions of
economic and social rights.
B. Committee on Economic, Social and Cultural Rights
52. The Special Rapporteur has surveyed the Committee’s work since the beginning of
2014 to evaluate how it has approached the three elements in the RIA framework. This
included State party reports, the relevant lists of issues and the concluding observations
relating to 32 States parties, drawn more or less evenly from the different regional groups.
53. In one third of the 32 lists of issues considered, the Committee requested
information about the status of the Covenant within the State’s domestic legal system. In
almost all the lists, examples of cases in which domestic courts had considered or applied
the Covenant were requested. In a little over half of the lists, States parties were asked
about legislative measures taken to implement one or more of the rights.
54. The reports by States were consistent with the finding of widespread domestic
recognition of economic and social rights. In 13 State party reports addressing the issue of
the domestic law status of the Covenant, a range of statuses were reported: in some States,
the Covenant applied directly, in others, it prevailed in cases of inconsistency, benefited
from a “presumption of compatibility” or could be invoked as a persuasive authority. Half
of the States indicated that the economic and social rights recognized in legislation or
constitutional provisions were justiciable and one third of the States provided some
examples of cases.
55. Despite these impressive reporting figures, in half of the concluding observations the
Committee recommended that measures be taken to ensure the “direct applicability” of the
Covenant in the domestic legal order. In slightly less than half of the concluding
observations, the Committee also recommended that the State concerned seek to raise
awareness of the justiciability of the rights. And in almost every concluding observation
32 See Center for Economic and Social Rights, “The universal periodic review: a skewed agenda?”
(2016).
(27), the Committee recommended that legislation be enacted or amended in order to
implement Covenant obligations.
C. Non-governmental organizations
56. One of the most encouraging developments in recent years in relation to economic
and social rights has been the growth of specialist NGOs at the international, national and,
especially, local levels working to promote either economic and social rights in general or
specific rights such as those relating to health, housing, education, water, gender equality,
disability and ageing.
57. Nevertheless, some of the major international NGOs continue to approach economic
and social rights in ways that do very little to change the marginality of those rights within
the field. This is especially problematic because these organizations still disproportionately
influence the overall shape of the non-governmental agenda, especially at the international
level. Good faith efforts in recent years to develop a more positive and proactive approach
to economic and social rights have succeeded in moving the field forward in relation to
several issues that are important, even though they represent a rather narrow slice of the
overall economic and social rights pie. Reporting on issues such as forced evictions,
maternal mortality, discrimination in access to schooling, access to palliative care and to
HIV/AIDS drugs, and sexual and reproductive health, has contributed significantly in these
areas, but the approaches adopted have too often relied almost entirely on using a
discrimination lens and avoided reliance on the economic and social rights framework.
When combined with policies that eschew issues that involve redistributing resources or
require significant budgetary allocations, the approach can amount to a self-denying
ordinance that effectively maintains the status quo and ensures that the core economic and
social rights issues will not be adequately addressed.
58. When constitutions are being rewritten, the major NGOs are vocal in calling for the
inclusion of civil and political rights, but rarely mention economic and social rights. When
transitional justice mechanisms are being shaped, their concerns focus overwhelmingly on
civil and political rights, even though many such violations go hand in hand with economic
and social rights violations, and the measures required to bring reconciliation and justice
would need to incorporate economic and social rights dimensions if they are to be
comprehensive as well as designed to avoid non-repetition. Instead, those issues are most
likely to be characterized as development concerns.
59. One of the biggest economic and social rights challenges confronted by civil society
organizations has been to identify a methodology for monitoring these rights. This has gone
hand in hand with questions about who bears responsibility for economic and social rights
violations, to whom demands for action should be addressed, how judgments can be made
as to the acceptability of trade-offs between one social right and another and what remedies
are appropriate. These dilemmas are especially problematic in the absence of the RIA
framework at the national level, but many of the NGOs have either consciously or
otherwise not directed their attention to these dimensions. Others have dismissed them as
issues in relation to which international NGOs are poorly placed to advocate.33
33 “International human rights organizations might press governments to adopt the legislation — the
statutory rights — needed to make litigation a meaningful tool to enforce ESC rights. That is
inevitably useful, but it is a procedural device that still falls significantly short of actual
implementation.” See Kenneth Roth, “Defending economic, social and cultural rights: practical issues
faced by an international human rights organization”, Human Rights Quarterly, vol. 26, No. 1
(February 2004), p. 63.
60. If the recognition, institutionalization and accountability building blocks were
solidly in place in many countries, it would follow that the main focus of advocacy efforts
to promote a higher level of real-life enjoyment of economic and social rights should be
elsewhere. It may be that this assumption explains why so many of those working to
promote economic and social rights, whether through the United Nations or regional
organizations or at the national level, have now turned their attention to matters such as
developing new methodologies for measuring compliance with the Covenant, exploring
new and much more detailed indicators, working out how such indicators can be
disaggregated to take account of a wide range of specific factors — such as gender, age, ethnicity and social origin —, identifying means by which to ensure that decision-making processes are transparent and participatory, and developing more detailed normative
guidelines, recommendations, principles and other such instruments that elaborate upon or
seek to operationalize governmental obligations in relation to economic and social rights.
61. The problem is that, unless the basic building blocks of recognition,
institutionalization and accountability are in place, it is highly unlikely that other more
sophisticated techniques are going to be effective. It is difficult to imagine less fertile
ground for many such initiatives than contexts in which economic and social rights remain
unrecognized as rights, where the relevant institutions are not working effectively to
promote economic and social rights as rights and where there is little or no concept of
economic and social rights accountability in place. It is hoped, of course, that these new
techniques, developed and promoted externally, can compensate for, or even overcome, the
inhospitable domestic environment within which they will eventually have to be
implemented. But again, there would seem to be a strong element of wishful thinking in the
expectation that States that have not been able or willing to put the foundations of economic
and social rights in place, will be likely to implement even more demanding and
sophisticated techniques for monitoring and promoting economic and social rights.
62. None of this is to suggest that these other endeavours are not of major importance,
but the argument is that they will have far less impact where the RIA framework is not in
place.
VI. Conclusions
63. A conception of human rights that implicitly accepts a radical hierarchical
distinction between the two sets of rights — civil and political rights, and economic, social and cultural rights — is one that is fundamentally incompatible with international human rights law. Just as importantly, it offers no solution to the
increasingly urgent challenges posed by radical and growing inequality and
widespread material deprivation in a world of plenty. The economic and social rights
agenda is thus too important, and its neglect has too many powerfully negative
implications for the overall human rights enterprise, for it to be marginalized by
mainstream actors and left to a handful of specialist groups to struggle to give it the
place that law and justice demand.
64. It is essential for the proponents of economic and social rights to acknowledge
the deeply rooted nature of the continuing strong resistance to the very concept of
economic and social rights as human rights. The adoption of more resolutions and the
holding of more meetings should not be permitted to conceal this fact. The reality is
that governments have not accidentally overlooked the significance of the recognition,
institutionalization and accountability (RIA) framework. On the contrary, the
widespread failure to ensure that these three building blocks are in place in relation to
economic and social rights is the principal symptom of the resistance. Proponents of
economic and social rights need to acknowledge and tackle this deeper political reality
rather than sailing merrily along as though there is widespread and basic agreement
on economic and social rights.
65. Despite the rhetoric of indivisibility, both national and international
endeavours to promote and protect economic and social rights are overshadowed by
the assumption that while economic and social rights are desirable long-term social
goals, they should not be treated as full-fledged human rights. The present report is
not the place to review in detail the familiar arguments that have been invoked in
support of this approach, which include claims that economic and social rights are too
expensive, too vague, too empowering of the State, are potentially limitless, reward
and encourage laziness, penalize wealth creation, undermine economic growth and are
inimical to international competitiveness. These arguments, traditionally associated
with those who might describe themselves as libertarians, neo-conservatives, free-
marketeers or small government advocates, have triumphed in many countries in the
twenty-first century and have been actively promoted by the most influential
international organizations in the fields of development, finance and trade. While
compelling counter-arguments have been put forward in response to each of the
critiques, the biggest challenge by far is essentially ideological. The economic and
political power of entrenched elites is best protected by policies that marginalize
economic and social rights.
66. Many human rights proponents seem to prefer not to engage in these debates
for fear that doing so would be a lost cause and that economic and social rights would
be discredited or disowned rather than just marginalized or neglected. But that
strategy leads to the same result in practical terms, except that the illusion is
maintained that economic and social rights are an integral, even indivisible, part of
the overall human rights framework.
67. The framework of legal recognition that underpins the approach adopted in the
present report by no means exhausts the range of approaches that are and should be
used in the promotion of economic and social rights. Campaigns to educate both rights
holders and professionals, empower community groups, facilitate local-level activism
or enable monitoring are all part of the expansive toolbox for economic and social
rights activism.34 As has been cautioned:
Unless all participants in [economic and social rights] litigation are conscious of
the institutional limitations of the courts and consider the possibility that the
particular claim may be more effectively addressed through another forum
such as advocacy or community mobilisation, there will be the ever-present
danger of untimely or inappropriate resort to litigation, and judgments that
impede rather than facilitate transformation.35
68. The legal framework will influence all of these other dimensions and avenues
and it is one of the dimensions that can most meaningfully be promoted and
monitored through United Nations and related mechanisms. Put succinctly:
Contemporary movements for social change cannot avoid working in the legal
medium. There are no “law-free” zones in modern societies to which activists can repair so as to avoid entanglement with law and system. … Legal entitlements (including those formulated as “rights”) strongly influence the distribution of wealth and power and partially construct identities. Social
change movements cannot avoid engagement on this terrain, and it is difficult
34 Peter Houtzager and Lucie E. White, “The long arc of pragmatic economic and social rights
advocacy”, in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global
Poverty, Lucie E. White and Jeremy Perelman, eds. (Stanford, California, Stanford University Press,
2011), p. 172.
35 See Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution
(Claremont, Juta, 2010), pp. 77-78.
to see how they can do this effectively without some type of “higher law” discourse of the kind captured in the idiom of fundamental rights.36
69. In other words, even when it appears to be marginal and best ignored, the legal
framework of recognition or non-recognition will, in practice, wield significant
influence in terms of how economic and social rights are perceived and what advocacy
opportunities are closed down or opened up. The legal framework can, at least
partially, empower or disempower and legitimize or delegitimize those who advocate
respect for economic and social rights. Thus, even those who argue that the battle over
economic and social rights will inevitably be won or lost in the political arena would
be well advised not to neglect the recognition, institutionalization and accountability
dimensions. This is not for a moment to suggest that the many other dimensions of
economic and social rights-related advocacy are unimportant. The argument is that
most, if not all, of them will be less effective if the RIA framework is not in place as a
matter of State policy.
70. The RIA framework is no magic bullet. There are all too many examples of
situations in which clearly recognized economic and social rights, to which meaningful
accountability mechanisms attach in principle, have done little or nothing to improve
the situation. But this generally reflects a failure of will, competence or capacity,
rather than a flawed framework. Nor is the report arguing that these three steps are
all that is required or that the many other approaches that are currently being
pursued are not potentially very important.
71. It is important to recognize that the promotion of economic and social rights as
human rights, including a particular emphasis on the elements of the RIA framework,
does not imply that there is a universal one-size-fits-all approach that will secure the
realization of economic and social rights in countries with very different histories,
legal systems, traditions and cultures. Nor does it assume that everything needs to be
done at once, or that a maximalist approach is indispensable. Strong arguments in
favour of an incremental approach to economic and social rights adjudication in
contexts in which the notion is relatively novel holds lessons for moving progressively,
and with all appropriate speed, in relation to other elements of the overall package.37
There is immense space for the processes of “vernacularization”, or translation into languages and forms, that are meaningful at the local level and about which various
authors have written with great insight.38
72. One of the challenges that emerges most clearly from this analysis is that more
research is needed in order to generate a better understanding of what works and
what does not, in terms of the overall agenda for the promotion of economic and social
rights. The focus needs to be less on what governments, civil society groups and
scholars think they are best placed to do and more on what objectively needs to be
done to ensure the progressive recognition and realization of economic and social
rights.
36 See Karl Klare, “Critical perspectives on social and economic rights, democracy and separation of
powers,” in Social and Economic Rights in Theory and Practice: Critical Inquiries, Helena Alviar
García, Karl Klare and Lucy A. Williams, eds. (London, Routledge, 2015), p. 3.
37 See Jeff King, Judging Social Rights (Cambridge, United Kingdom, Cambridge University Press,
2016).
38 Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local
Justice (Chicago, University of Chicago Press, 2006).