Report from Plenary Session 3Accountability: Expanding the Scope and Creating New Tools

1.       Introduction noting the UN International Day for Persons' with Disabilities, Steven Estey, Disabled Persons International, Canada

The UN day theme of "justice for all" is especially appropriate in a conference focused on ESCR.  Disabled people have been fighting for their human rights for many years and this year we were successful in passing the UN Convention on the Rights of Persons with Disabilities.  It entered into force as of May 2008, and at this point, 40 countries have ratified it.  We are also beginning to see a shift in awareness that disability issues are human rights issues.  The key idea that disability advocates focus on is that people with disabilities have the same rights as everyone else.  In 2000, the former High Commissioner for Human Rights, Mary Robinson, commissioned a report to look at the issue of disability rights and how they were considered by current human         rights treaties and bodies.  The study concluded that indeed under these treaties, people with disabilities had the same human rights as everyone else, but that disabled people were often invisible within that system.  Steve then asked the participants to think about how the current human rights system tends to invisibilize disabled peoples.  He noted that the new Convention will be an important step in addressing this invisibility.  Steve encouraged the participants to take a "twin track" approach; not only using the new convention to address disability issues, but also utilizing the provisions of the existing treaties which can protect disabled people.  Therefore, he asked the group to consider how to more fully integrate disability rights issues into the ESC issues they all work on.   

2.       Introduction to Plenary 3 - Expanding Interpretive strategies: Considerations of Social Life of Human Rights, Steve Ouma, University of the Western Cape, South Africa

Steve began his introduction by giving a basic background on instruments and processes of international human rights law.  He highlighted the key human rights principles of universality, indivisibility, progressive realization, international cooperation, non-discrimination and raised the question of primacy.   Steve observed that the process by which an event becomes textualized and labeled as 'human rights violation' is highly selective.  The language in which most cases are represented is generally realist and legalistic with a tendency to decontexualize the events.  In general, most accounts of human rights violations are characterized by literalism and minimalism which strip events of their subjective meanings in pursuit of objective legal facts.  

For this reason, there has been call for the human rights reports to be contexualized in the wider scope of social and contextual material.  Steve argues that the Vienna Convention on Law of Treaties (VCLT) can be interpreted broadly to deal with this gap. Three elements of this treaty stand out according to Steve. These are: (1) treaty terms must be given their ordinary meaning; (2) interpreted in their context; and (3) interpreted in light of the treaty's 'object and purpose." 

To build further on this generous interpretation of VCLT, Steve suggests that human rights conventions ought to be understood from the perspective of what he calls social life of human rights. This perspective situates subjects in the struggle to give human rights a new meaning.  The Social Life of Human Rights project, appreciates that human rights inform personhood and generates life script. The social life of human rights is about 'revolution of the subject' where human rights reporting is done in a historicized and contextualized truth.  It is about 'primacy of practice' and expanding the scope.

3.       Responsibility of Non-State Actors and ESCR Violations, Danwood Chirwa, University of Cape Town, South Africa

Non-state actors are important due to the limits of state actions both internationally and domestically and because they have been implicated in human rights violations. Human rights violations are assumed to be of civil and political rights, but violations of ESCR are more dominant, such as water and health.  Non-state actors generally pose a greater threat to ESCR, but there are some conceptual obstacles to people acknowledging this fact due to the notion of state centricity for the protection and fulfillment of human rights obligations.  Domestic constitutions largely restraint that actions of states and are not really concerned with private individuals. It is the same with international law. Only states are deemed to be subjects of international law. The state-centric nature of human rights and international law is historically evident. The social contract doctrine informs this notion of state-centricity. The public/private divide has also been challenged as social relations involve unequal parties.

ESCR are not widely recognized at the domestic level because they are seen as bearing positive obligations. They have qualifications and modifiers. Positive obligations (to protect, respect and fulfill) are not litigated and are not seen as being binding. However, at the domestic level, there are two emerging ways of holding non state actors responsible: (1) the Third party doctrine allows provisions of private law to be interpreted in a human rights context; and (2) International criminal law, which is the only law recognizing binding individual obligations.

Outstanding questions which have not really been solved are:

Who are non-state actors? Should they be all be bound - are they transnational companies, shopkeepers, doctors? Which rights should be enforced? Which obligations should non-state actors be bound by - positive or negative rights? Which violations should be given national/international attention? Can the notion of complicity be used for civil responsibility? What do we mean by the notion of sphere of influence?

4.       Extraterritorial Obligations: Conceptual Developments in Theory and Practice, Joseph Schechla, Habitat International Coalition, Egypt

Joseph presented on the issue of extra-territorial obligations (ETO) in light of the current crisis' facing the world, including climate change and the global financial crisis.  With States being the primary duty-bearers under international human rights law, what challenges do these issues present to demanding economic, social and cultural rights and how can ETOs be used to address them?

We are currently still in the process of gathering the notes from this presentation and we hope to make them available soon.  Please contact ESCR-Net Secretariat if you would like to request a complete version.

5.       Accountability in the Current Global Financial Crisis, Miloon Kothari, Former UN Special Rapporteur for Housing & Habitat International Coalition, India

Human rights failures have led to the current global economic meltdown. If the right to adequate housing was taken seriously, there would have been better rental regulation, reduction in property speculation, etc. However, in the last two decades, there has been less control in the real estate market, especially seen in the growth of land grabbing, obsession with home ownership, and tax benefits going to the private sector. Intervening in the market is seen as a way of destabilizing the market by neoliberal economists and this is why it was discouraged. But we know that markets alone cannot fulfill ESC rights. Miloon then asked why there no accountability/transparency in the market? He then called for a radical change in institutions governing financial issues such as the World Bank and the IMF.  He noted that the people who have gotten us into the current crisis should be prosecuted. Moving forward from here, lessons need to be learned and leadership based on human rights obligations should be implemented.

6.       Expanding Accountability in International Trade, Finance and Investment, Aldo Caliari, Center for Concern, USA 

A growing number of decisions that would require a delicate balance between principles of international human rights law and the imperatives of running a good economic policy seem to be de facto (or, in some cases, de iure) subject to decisions by bodies with purely economic (trade, investment, finance) backgrounds and on the basis of considerations that exclude human rights.

While civil society organizations spend a fair deal of resources focusing on norm-setting and development by human rights bodies and machineries, it is clear that international financial institutions, or the branches of government engaged in negotiations on trade agreements, pay little attention to such norms and standards, and consider them, in the best case, of an advisory nature.

As a result, human rights advocates oftentimes find that, in order to have an impact on economic policy discussions and negotiations, they are forced to contest them at a disadvantage, in institutions for which human rights are, if anything, an ancillary consideration of rather discretionary application. It is unlikely that the cultural and structural difficulties for bodies primarily oriented to economic law enforcement to give a fair hearing to human rights claims, or even admit them on a consistent basis, can be overcome.

There is a need for action towards reform of the institutional machinery so the processes for economic policy decision-making force the consideration of human rights matters. Such reforms would be of benefit to the whole human rights community but there is no concerted and collective strategy by the community to carry systematic advocacy on the reforms of these institutional processes (or build tactical alliances with the groups that are engaged in such reforms).

7.       The Optional Protocol to the ICESCR: a Major Step Towards International Accountability for ESCR's Violations? Magdalena Sepulveda, UN Independent Expert on Extreme Poverty & International Council on Human Rights Policy, Switzerland

Magdalena gave a presentation about the benefits of the adoption by the UN General Assembly of the Optional Protocol to the ICESCR. She stressed that this signaled an explicit recognition of the indivisibility and interdependence of all human rights, that it will help to fill the void in the international adjudication of ESC rights, and that it will help develop domestic jurisprudence on these rights. However, there are several challenges ahead. The first challenge is to ensure the widest possible ratification effort. Then, once it enters into force, due to the need to exhaust domestic remedies, other internal issues will arise, such as lack of enshrining these rights in domestic legislation, lack of training for lawyers and judges on ESC rights, weak judicial systems, and lack or poor quality of legal assistance to vulnerable groups. Nonetheless, none of these challenges are insurmountable and we need to join forces and create synergies to realize the potential of the OP. Above all, it is necessary to empower the most disadvantaged groups.

8.       A New Multidisciplinary Methodology to Assess Violations of ESCR, Eitan Felner, Centre for Economic and Social Rights, Spain

In his presentation, Eitan was attempting to show when and how abysmal level of inequality and deprivation can be traced back to specific actions of state policy and how they can be categorized as violations of internationally recognized human rights obligations.  Then he illustrated how quantitative methods can be applied in specific contexts. 

Eitan laid out a 4 step methodological framework for this analysis:

1. Determine the deprivation and disparities in enjoyment of ESC rights, such as maternal mortality rates, inequality in malnutrition, low primary education completion, high under-5 mortality rates, high incidence of homelessness.

2. Identify the determinants of ESCR deprivations and inequalities. Determinants are the factors directly or indirectly leading to certain human rights outcomes. The determinants of child mortality, primary school incompletion have been amply studies by development practitioners, economists, epidemiologists and others. However these determinants, and not just their outcomes, should also be seen in human rights terms. For example, a mother's level of education can determine the choices she makes in feeding her children and so determines the risk of them being malnourished. Access to the right to education is thus a determinant of access to the right to food. The interdependence between determinants reflects the indivisibility and interdependence of rights.

3. Identify inadequacy of policy efforts to address determinants

  • a. Failure in providing adequate services (availability, accessibility, quality, etc)
  • b. Programs to tackle obstacles in use of services (in coverage, unfair distribution, etc)
  • c. Policies addressing underlying determinants (reduction in % of houses with potable water, underfunding of nutrition programs, etc)
  • d. Policies addressing socio-economic determinants (poverty reduction strategies, fiscal policies, land reform, etc)

4.   Assess whether policy failures are a question of inability or lack of political will. The final optional step is to identify the structural causes behind inadequacy of government efforts: economic, political or social interests like ethnic discrimination, corruption, political clientelism, capture of state by economic elites and willful indifference to deprivations of marginalized groups. This step may be crucial for showing that the inadequacy of policy efforts are often not just a matter of lack of effectiveness in government policies and programs, but related to lack of political will.

In this methodology, CESR is focusing primarily on those dimensions of government obligations that can be identified and critically assessed most usefully through the use of socio-economic tools and quantitative methods, particularly the obligation to fulfill, and its constituent elements: the obligation to satisfy minimum essential levels of rights, the duty to move progressively and expeditiously towards full realization of rights within the constraints of maximum available resources, and the obligation to ensure no discrimination in the enjoyment of rights.

Eitan stated that he spoke about tools and not just about indicators because in order to assess the multiple dimensions of state obligations pertaining to economic and social rights, it is not sufficient to devise a set of human rights indicators. Indeed, in much the same way as having a grocery list is not sufficient to make a meal, having a list of human rights indicators is not sufficient to the multiple dimensions of state obligations pertaining to economic and social rights. As with cooking, what is needed is a set of recipes, or a box of analytical tools that tell you how to combine and analyze the indicators - such as incidence benefit analysis, or a complex costing exercise to help us measure the dimensions of state obligations, or we could use simple tools, such as descriptive statistics, comparing various relevant data set, etc.

Then Eitan illustrated how this new methodology has been used to analyze the right to education in Guatemala.  He showed a series of detailed graphs relating to food programs, resource distribution within regions of Guatemala, teacher evaluations, marginalized students, comparative qualitative data from Honduras, El Salvador and Nicaragua, and actual expenditures on education in other Latin American countries, to show that Guatemala was violating its obligation to fulfill the right to education.  He argued that this information could be useful to NGO's, UN mechanisms and legal practitioners to hold evaluate a country's performance.  Finally he noted that there are limitations to using this method, such as lack of information, need to cross-strategize and that less egregious situations may require more sophisticated analysis. 

9.   Monitoring Social Policies from a Rights-Based Approach: Lessons learned and Challenges Encountered, Pilar Arcidiácono, Centro de Estudios Legales y Sociales, Argentina

This presentation has two main focuses: 1) What are we talking about when we refer to "a rights-based approach" as a guide to social inclusion policies? 2) Which are the challenges and difficulties faced in their full realization?

The "rights-based approach" is a conceptual framework for the human development process based on international Human Rights (HR) principles and standards, and aimed at respecting, protecting and fulfilling HR. Nowadays, Human Rights are conceived as a program to guide or direct public policies, and to contribute to development and social inclusion strategies.

Which principles should be taken into account to define policies with a "rights-based approach"?

  • Policies should respect the rights minimum content.
  • The State should devote their maximum available resources to realize ESCR.
  • It should be guaranteed that rights will be fulfilled with equality and without discrimination.
  • The role of policy receivers/targets, mainly acknowledging them as holders of rights who, in turn, generate State obligations.
  • Access to public information. This right gives people the power to access information contained in files, statistics or records kept by the State.
  • Access to justice (or the existence of claims mechanisms), which should not be limited to granting access to legal services by low-income sectors, but should also include the possibility to access and maintain claims throughout required court proceedings.

Which elements help explain why such policies are not being currently devised?

As regards the inclusion of issues in the public agenda, one first element to be considered is the difficulties faced by vulnerable sectors to become public policy players. A context unfavorable to making claims and adding issues in the public agenda is often approached by working with intermediate organizations/political parties that are or may become public policy agents. However, there is the risk of co-option/demobilization, which, among other things, underscores the dilemma between success/lack of autonomy to carry out a strategy.

Another element particularly worth mentioning is that not all issues succeed in attracting the State's attention and becoming top issues in the agenda. The way in which the public agenda is formed and its content is defined has a major political and administrative importance, both theoretically and practically. Furthermore, the actual implementation of a "rights-based approach" largely depends on substantive changes in the economic sphere, as well as on strengthening democratic institutions, and making consistent decisions in the field of public policy to change current development patterns. To some extent, this implies stating the need to change wealth distribution patterns and to put an end to the wealth concentration process that has accompanied the implementation of economic and social policies.

Finally, it is important to be aware of the State's institutional capabilities to devise inclusion policies according to a "rights-based approach." This is a key element, because it tells us which policy options are actually feasible. While social policies including "rights language" continue to be designed but are conceived under assumptions of "employability"/"non-employability", claim mechanisms are discarded, minimum income transfers unable to cover an "adequate standard of living" are proposed (requiring considerations and conditions), while participation is not included in decision-making processes, a debate on policy alternatives is not promoted and rights violations continue to be justified due to "the absence of budgetary resources" (particularly within the context of fiscal surplus), it can be said that there is a long way ahead to go from policies with a "rights rhetoric" to policies with a "rights-based approach."

Working Group Description: