Introduction to monitoring ESC rights

Geneva Academy of International Humanitarian Law and Human Rights

Wednesday 15 December 2010

Types of ESC Rights

Among the rights guaranteed to all human beings under international treaties, without any discrimination on grounds such as race, colour, sex, language, political or other opinion, national or social origin, property, birth or other status, are:
– The right to the highest attainable standard of health
– The right to work and just and favourable working conditions
– The right to adequate food
– The right to adequate housing
– The right to water and sanitation
– The right to social security
– The right to education
– The right to cultural expression
– The right to participate in cultural life
– Freedom from arbitrary interference with privacy, family, home or correspondence

The legal basis for ESC rights

• Obligations for ESC rights emerge from the consent of governments to be bound through treaties, conventions, declarations, resolutions, guidelines, comments from human rights bodies...

* ESC rights are enshrined in:
– Universal Declaration of Human Rights (UDHR) 1948;
– International Covenant on Economic, Social and Cultural Rights (ICESCR) 1966;
– International Covenant on Civil and Political Rights (ICCPR) 1966;
– International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965;
– Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979;
– Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 1984;
– Convention on the Rights of the Child (CRC) 1989;
– International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) 1990;
– International Convention on the Protection of all Persons from Enforced Disappearances (ICED) 2007;
– International Convention on Protection & Promotion of the Rights of Persons with Disabilities (ICRPD) 2007.

* They are further explained in:
– General Comments of the Committee on Economic, Social and Cultural Rights, i.e.:
• No. 19 on the right to social security;
• No. 18 on the right to work;
• No. 15 on the right to water;
• No. 4 on the right to adequate housing;
• No. 7 on the prohibition against forced evictions;
• No. 14 on the right to health;
• No. 13 on right to education;
• No. 12 on the right to food;
• and others on the ESC rights of the elderly (No. 6), disabled (No. 7), women (No. 16), non-discrimination (No. 20).

* They are also further explained in:
– Resolutions of the Human Rights Council and former Commission on Human Rights (on such topics as the prohibition of forced evictions; the right to health; the right to education);
– Conventions of the International Labour Organization (and other specialised bodies);
– General Assembly resolutions, such as the resolution adopting the UN Guidelines on Development-Based Evictions and Displacements;
– Customary international law.

Characteristics of ESC rights

• Are justiciable (national and international case-law)
• Are ‘progressively realizable’ :
« Article 2(1) ICESCR: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” »
• Involve immediately realizable obligations, including:
– The obligation not to discriminate between different groups of people in the realization of the rights in question;
– The obligation to take steps (including devising specific strategies and programmes) targeted deliberately towards the full realization of the rights;
– The obligation to monitor progress in the realization of human rights. Accessible mechanisms of redress should be available where rights are violated.
• Involve an identifiable ‘core content’ or ‘core obligation’ (the ‘survival kit’)
– the obligation to satisfy the minimum essential level of each right
• Involve both positive and negative obligations
• Include a prohibition against retrogressive measures
– no right can be permitted deliberately to suffer an absolute decline in its level of realization, unless the relevant duty-bearer(s) can justify this by referring to the totality of the rights in force in the given situation and fully uses the maximum available resources
• Involve (theoretically) 3 elements/duties:
– Duty to Respect
– Duty to Protect
– Duty to Fulfil
• To respect human rights means not to interfere with their enjoyment.
– For instance, States should refrain from carrying out forced evictions and not arbitrarily restrict the right to vote or the freedom of association.
• To protect human rights means to take steps to ensure that third parties do not interfere with their enjoyment.
– For example, States must protect the accessibility of education by ensuring that parents and employers do not stop girls from going to school.
• To fulfill human rights means to take steps progressively to realize the right in question. – This obligation is sometimes subdivided into obligations to facilitate and to provide for its realization.
• The obligation to facilitate refers to the obligation of the State to engage proactively in activities that would strengthen people’s ability to meet their own needs, for instance, creating conditions in which the market can supply the health-care services that they demand.
• The obligation to provide goes one step further, involving direct provision of services if the right(s) concerned cannot be realized otherwise, for example to compensate for market failure or to help groups that are unable to provide for themselves.

The content of ESC rights

• Governmental obligations relevant to ESC rights - the 4-A Scheme: :
– Availability
– Accessibility
– Acceptability
– Adaptability
– (Adequate - food)
– (Quality - education)

Monitoring approaches

• Violations approach
• Progressive realization approach (including using indicators/benchmarks)
• Core obligations approach
• Budget analysis approach

Monitoring ESC rights

• Monitoring violations of ESCR
– Investigating complaints of violations (events based)
– Usually violations of respect, protect
– Monitoring acts or omissions
– Unwillingness of State to fulfill (State must prove inability)
• Monitoring progressive realisation (obligations)
– Monitoring progress over time
– Monitoring policies, programmes and budgets
– Monitoring change

Monitoring human rights
Monitoring is a method of improving protection of human rights.

Stages in monitoring human rights: :
• Human rights education
• Information gathering
• Information analysis
• Reporting
• Advocacy
• Solution building

Stage 1: human rights education

• Knowledge about rights is important for framing violations in rights language
• Facilitates access to monitoring mechanisms
• Provides advocacy ability
• Is a pre-requisite for all the next steps

Stage 2: information gathering
• Information gathering
Includes data collection
• Use indicators to establish what data is necessary
Inlcudes case studies and anecdotal evidence
• Interviews
• Desk research
• Field work (fact-finding)
– Many different actors can be involved in this:
• National Human Rights Institutions (NHRIs)
• Non Governmental Organisations (NGOs)
• Governments
• UN agencies
• Development specialists
• International institutions
• Media
• Others–Vital to verify information

Stage 3: information analysis
• Information analysis
– cf situation with legal obligations/duties/rights
– Analyse achievement of indicators and/or benchmarks
– Necessitates some form of (legal) assessment - is there a violation? Of which rights? Who is the violator (duty bearer)?
– Who, what, when, how
– Identify patterns, problems and their causes
– Translates data and anecdotal evidence of ‘violations’ into concrete examples of violations
- Various actors can do this –
• NHRIs & NGOs can make their own assessment
• Lawyers
• ON
• National, regional or international judicial or quasi judicial bodies

Stage 4: reporting
• Reporting
– NGOs, UN agencies, others are all involved in reporting
– Reports take different forms - short, long, detailed, use of data, case studies, stories, oral, written, video
– Uses of reporting - facilitate information availability
– For local, national or international use
– To facilitate mechanisms to take action
• Committee on Economic, Social and Cultural Rights
• National Ombudsmen
• Legislators
• Communities etc

Stage 5: advocacy
• Advocacy
– Various kinds of advocacy needed for use of different monitoring mechanisms
– Includes bringing complaints / cases (to courts/tribunals /UN/ombudsmen)
– Also includes reporting to monitoring mechanisms (e.g. as alternative to state reports)
– Advocacy takes different forms - legal, non-legal, includes community action, use of media, etc

Stage 6: Solution building
• Solution building
– Develop strategies for how to be part of the solution
– Capacity building, education
– Consider potential solutions to the problems identified
– Assist in problem solving

Monitoring human rights principles:

- Do no harm
- Respect the mandate
- Know the standards
- Exercise good judgement
- Seek consultation
- Respect the authorities
- Credibility
- Confidentiality
- Security
- Understand the situation
- Need for consistency, persistence and patience
- Accuracy and precision
- Impartiality
- Objectivity
- Sensitivity
- Integrity
- Professionalism
- Visibility