Economic, Social And Cultural Rights Research Articles

Tensions in Social Integration Based on Access to Health and Decent Work for the Migrant Population in Santiago de Cali

Cali, Colombia has been a destination for migrants from Venezuela, either to serve as a transit point or a settlement for those seeking better opportunities. This complex situation, within the context of an intermediate city located in the Global South, has led to unprecedented institutional challenges related to the assurance of Economic, Social, and Cultural Rights (ESCR), and even more, requirements for social coexistence. This paper aims to elucidate tensions that have arisen in the social integration of the migrant population in Cali, Colombia, based on the analysis of their access to health and work rights. The primary reference for this exploration is drawn from oral accounts provided by Venezuelan migrant participants residing in the city.

DISCUSSION ON THE RECOGNITION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS AS JUSTICIABLE RIGHTS

The purpose of this paper is to present an overview on the discussion around the justiciability of economic, social and cultural rights (ESCR), i.e., whether they are able to be invoked before national or international courts. Thus, from the traditionally unfavorable allegations to the ESCR, a historical review on its origin, concept and legal nature is presented in order to dismantle those allegations, bringing up the pertinent arguments, presented as an outcome of this study, which prove, therefore, the ESCR justiciability. From a methodological perspective, this paper is developed through analysis regarding the different approaches in legal sources and official documents at the national, and in particular, the international sort, in order to demonstrate that the present discussion can take place in any level, whether national, regional or global, whenever DESC violation is detected. For this reason, the arguments intend to overcome the discussion on the justiciability of DESC as a way of guaranteeing a legal remedy to victims in case of violation, in order to increase levels of quality of life and contribute to the drastic reduction of poverty and social inequalities of any country. Therefore, if the justiciability of ESCR is not recognized as is the justiciability of civil and political rights (CPR), all the acknowledgments and efforts made to consider all human rights as one integrated body will be worthless.

The Right to Property Taking Economic, Social, and Cultural Rights Seriously

The right to property is part of International Human Rights Law (IHRL). However, the right is conspicuously missing from some fundamental treaties, and there are important inconsistencies in its interpretation by regional and global human rights bodies. In light of the indeterminacy and polysemy of IHRL in relation to property, this paper articulates a proposal to rethink this right taking Economic, Social, and Cultural Rights (ESCR) seriously. The proposal contains four propositions. Firstly, property is a human right. Secondly, it includes private property as one of its forms, but this is not the only one. Thirdly, property has a social function. And fourthly, as a matter of proportionality, fulfilling ESCR is one of the most important objectives that may justify the limitation of private property.

Bringing It All Together: Leveraging Social Movements and the Courts to Advance Substantive Human Rights and Climate Justice

Although significant literature and jurisprudence has amassed on rights-based climate litigation over recent years, less research and case law has emerged on poverty-related court cases and the fulfilment of economic, social, and cultural rights (ESCR) in Canada. Fewer still are studies exploring the interlinkages between these areas of inquiry. The purpose of this paper is to explore, using Canada as a case study, rights-based developments in climate litigation cases and how these could impact the innovative advancement of ESCR (e.g. to food, housing and water). Typically, issues of justiciability and standing emerge, impeding the realization of such rights. Given the grave threats we now face, climate cases and social movements must be brought together to better hold state actors accountable for their rights obligations. We implore the legal community to explore ways to traverse juridical obstacles to realize the interdependencies of human rights and protect the planet from calamitous climate change.

A Latin American view of the human rights approach to tobacco control.

Human rights law is a powerful legal tool to protect health, including tobacco control. The International Covenant on Economic, Social and Cultural Rights (IESCR) obliges States to produce results and is enforceable. Although a human rights approach would have many advantages for Latin American tobacco control, it has not been appropriately used for advocacy purposes yet. Human rights law is a powerful legal tool to protect health, including tobacco control and smoking cessation. Therefore, I appreciate this article by Meier et al. [1]. I will briefly comment on some additional aspects, both generally and as they relate to the current situation in Latin America. Are human rights enforceable? In theory, yes. Human rights are inherent to human beings and empower individuals (rights holders) to demand that States (duty holders) comply with the obligations of those rights. However, an “artificial” contrast has been raised about differences in enforceability between civil and political rights (e.g. the right to life, liberty, property, etc.) and economic, social and cultural rights (ESCR), related to living conditions and access to material and cultural goods (including the right to health). Civil and political rights confer an obligation of results and no one disputes they are enforceable. ESCR confer obligations of means or behaviour and can be viewed as enforceable only to the extent that the State has sufficient resources; they are, therefore, often regarded as “expectations” [2]. For most Latin American law, the fact that ESCR must be fulfilled according to the available resources does not imply they are not enforceable. The obligation to use “the maximum” of the “available resources,” together with the obligation of progressive satisfaction and the need to the results to the appropriate technical or political standards, would make ESCR enforceable. In addition, international law imposes a fundamental rule: pacta sunt servanda, which means that “contracts are to be fulfilled.” Traditionally, the human rights State obligations were classified into positive obligations (to carry out certain activities leading to compliance; in the case of civilians and politicians) and negative obligations (to refrain from actions that violated them; in the case of ESCR). Currently, the Van Hoof classification describes three types of human rights State obligations: to respect (refrain from interfering directly or indirectly), to protect (take measures to prevent third parties from interfering), and to comply (adopt all legislative, administrative, budgetary and other measures appropriate for its realization) [2]. Although ESCR are considered enforceable rights, they are threatened by the doctrine, linked to economic liberalism, which aims to make the State cheaper, often at the cost of social policies. Additionally, although a human rights approach would have many advantages for Latin American tobacco control, this approach has traditionally not been used by tobacco control advocates, but by rather by the tobacco industry (e.g. arguing freedom of expression violation) to attack tobacco control policies [3]. A human rights approach currently has limited relevance for tobacco control policies in Latin America. As Meier et al. point out, human rights law has a prominent role in political and regulatory discourses, and some countries have already established a connection between tobacco control and the fundamental right to health. Because most Latin American countries belong to the civil law tradition, controlling private actors through civil liability litigation is underdeveloped. However, Latin America also has a strong tradition of controlling State action through fundamental rights litigation. Likewise, the Inter-American Human Rights System provides a way to demand human rights State responsibility. Although the current relevance of a human rights approach in Latin America may be limited, it seems a promising approach that ought to be explored [2]. None. None.

The Committee on Economic, Social and Cultural Rights—The Power of Subjective Rights?

Abstract The perception of the nature and standing of economic, social, and cultural rights (ESCR) has significantly changed and more than ever corresponds to the spirit and letter of the 1993 Vienna Declaration and Programme of Action. However, it would be difficult to overlook the residual impact of the scepticism towards these rights. From the very beginning of its existence, the Committee on Economic, Social and Cultural Rights has devoted continuous efforts to address said scepticism, focusing, inter alia, on three fundamental issues: the dependence of the implementation of ESCR on the resources available to states; the general articulation of relevant standards; and the related denial of subjectivity and justiciability of these rights. This article sketches out the Committee’s interpretation of some of the provisions of the International Covenant on ESCR and its Optional Protocol that are key to the legal standing of the Covenant rights, such as the obligation to use the maximum of available resources, the principle of progressive realization of ESCR, the standard of reasonableness, and the essential (core) content of rights and the minimum core obligations of states. The article concludes that the Committee has made a considerable contribution to the recognition of the subjective nature and justiciability of ESCR. Looking at the Committees approach over the years since its creation, it can be seen that it has consistently developed its doctrine of interpretation of the Covenant and its standards. The case law under the OP not only serves the protection of victims but has also enabled the Committee to expand its interpretation of ESCR and apply them as subjective and justiciable rights.

Using Community-Based Truth Commissions to Address Poverty and Related Economic, Social and Cultural Rights Violations: The UK Poverty Truth Commissions as Transformative Justice

Abstract Following the financial crisis and the imposition of austerity measures within the UK, poverty across the country has widened and deepened. The resulting severe negative impacts on the realization of economic and social rights are still being felt. Accountability of the State for such poverty related human rights violations has predominantly been addressed by judicial or quasi-judicial remedies. However, it is contended that due to limitations of scope and reach, alternative and additional mechanisms encompassing broader forms of justice are required to effectively address poverty and related violations of rights. This article explores the value-added of addressing poverty and related violations of economic, social and cultural rights (ESCRs) using alternative and additional ‘justice’ mechanisms drawn from the practice of transitional justice, in particular truth and reconciliation commissions (TRCs). Drawing upon the experience of community-based truth and reconciliation commissions, we evaluate the effectiveness of the UK Poverty Truth Commissions (PTCs) as a mechanism for realizing justice for poverty and related human rights violations. The central contention is that while the PTCs constitute an important and meaningful form of transformative justice, there is significant value-added in using a more explicit ESCRs agenda to enhance accountability, recompense and equality and fairness. Overall, the PTCs can help to close the ‘justice gap’ (Lederach 2001) and make a valuable contribution to transformative justice, tackling poverty and realizing ESCRs within the UK.

Analysis of public expenditure management in terms of respect for economic, social and cultural rights in the Republic of Moldova

To a great extent, respecting human rights in the Republic of Moldova is affected by unsatisfactory evolution of public expenditures and the way the latter are managed. The quality of public expenditure management, with an impact on respecting economic, social and cultural rights (ESCR) is evaluated through the prism of basic objectives of public financial management, namely the following: maintaining strict financial discipline, allocating public financial resources in conformity with government’s priorities, efficient provision of public services. The central public administration and local public administrations from the Republic of Moldova are relatively more successful in consolidating fiscal discipline than in providing an efficient use of public expenditure in conformity with strategic priorities. The research argues the positive effect which can be made by improvement of public expenditure management on respecting ESCR in the Republic of Moldova.

The Case for the Constitutionalisation of Economic, Social and Cultural Rights (ESCRs) in Botswana

Abstract This paper argues that there is no hierarchy in the importance attached to the different categories of human rights. Hence, Civil and Political Rights (CPRs) and Economic, Social, and Cultural Rights (ESCRs) are both human rights and must be placed on the same pedestal. In a democracy, it is imperative that all rights be accorded equal treatment. The aim of this paper is to investigate whether Botswana accords equal treatment to the two categories of human rights. Using a case study approach, the paper concludes that while the Constitution of Botswana provides for CPRs, ESCRs are absent from this instrument. Consequently, the provision of economic, social, and cultural goods is policy-based. The paper argues that this raises accountability and justiciability challenges because the state cannot be sanctioned for failing to provide non-rights. It recommends the constitutionalisation of ESCRs to maximise the accountability and justiciability of ESCRs.

Economic, Social and Cultural Rights During Crisis in Cyprus: The Interplay Between Domestic and External Normative Systems

Economic, Social and Cultural (ESC) rights have been present and active in the Cypriot legal order from the moment of its constitutional genesis. Due to the special relationship between the Constitution and the European Convention on Human Rights (ECHR), the judiciary has adopted a unique approach when interpreting the Constitution; it has been willing to engage into a comparative juridical analysis and to rely on the ECHR and the findings of the European Convention on Human Rights (ECtHR). Through this nexus with the ECHR and the streamlined approach with the ECtHR, the legal system of Cyprus has been progressive in placing social and economic rights – and to a lesser extent cultural rights – in a secure position. This traditional approach of the Cypriot courts was called into question by the 2011-2016 economic crisis, which challenged the interplay between domestic and external normative systems. The aim of this paper is to assess the impact of the recent economic crisis on the protection of ESC rights and the change in the balance between domestic and normative systems. The analysis concludes that the protection of ESC rights under the Cypriot Constitution, as formed by Cypriot case law, has been substantive and effective, while positively influenced by the extensive deployment of the comparative method. That long-standing approach has been challenged by the economic crisis and it seems that the extrovert judicial viewpoint is now partly reconsidered. The Supreme Court has indicated, albeit in specific instances, its willingness to disregard guidance from external influences and to focus instead on the idea that national constitutional protection can and should exceed that of the ECHR.

Economic, Social and Cultural Rights, Sustainable Development Goals, and Duties of Corporations: Rejecting the False Dichotomies

AbstractThe attention that the Sustainable Development Goals (SDGs) has given to public–private partnerships in solving global concerns including poverty, sustainable development and climate change has shed new light on the question of duties of corporations in relation to economic, social and cultural (ESC) rights. At the same time, objections to recognizing the obligations of corporations in relation to human rights in general and to ESC rights in particular have continued to be made. At the formal level, these objections are reflected in new distinctions such as between the duties of states and responsibilities of corporations, between primary duties of states and secondary duties of corporations, and between obligations of compliance and obligations of performance. All these objections and distinctions are untenable and serve only to stultify the discourse on business and human rights. The current state of human rights is dynamic, not static; commodious, not stale. There is ample space in it to accommodate duties of corporations regarding ESC rights.

Have Economic, Social and Cultural Rights (ESCRs) Come of Age?

Such a title as the one I’ve given this lecture (have economic, social and cultural rights (ESCRs) come of age?) would be extremely odd if the reference were to Civil and Political Rights (CPRs). This latter category of rights — extending from the freedom from torture to the rights to free expression, association and assembly — have long been established and accepted as an essential part of the wider human rights family. And yet, when the debate shifts to ESCRs we are much more tentative. To this day you still hear questions such as: are ESCRs really rights? Can you sue for redress for the violation of your right to shelter?, and: Surely, is it the State which should be held accountable for your right to food?

Perspectives on Economic, Social and Cultural Rights of Women in Azad Jammu and Kashmir: A Legal Analysis

This article focuses on women’s economic, social and cultural (ESC) rights in Azad Jammu and Kashmir (AJK). The Key human right issues concerning three ESC rights, namely education, employment and health, are targeted and discussed here. The article argues that towards fulfilment of its state-like national and international human rights obligations, AJK may progressively realize for its women population, its ESC rights through legal and policy measures. At the outset, the article discusses key human rights of women in the AJK, reflecting on both law and policy issues. While discussing the three rights mentioned above, the main focus remains on equality and non-discrimination. An analytical method is adopted to analyse relevant laws and policies. The article will, however, note deficiencies, if any, in the relevant laws and policies pertaining to the three targeted rights.

Does it Matter: Constitutionalisation, Democratic Governance, and the Human Right to Water

States are urged frequently by the UN, policymakers, and activists to recognise the human right to water domestically. However, does such legal incorporation, often in national constitutions, affect water policy and the realisation of the right? While several qualitative studies report positive impacts, initial quantitative assessments have questioned the systematic positive impact of the national recognition of the human right to water. Yet, such quantitative analyses of the effects of constitutional rights to water often overlook important mediating policy factors. We test specifically whether strong democratic governance is a significant condition for ensuring that the constitutional recognition of the human right to water has concrete outcomes. Results of a multivariate regression analysis on a global sample of 123 states over a 15-year period provide two findings. First, the constitutionalisation of the right to water and other economic, social, and cultural rights (ESCRs), in national constitutions alone is not associated with material benefits related to the human right to water. Second, the constitutionalisation of those rights can have positive material benefits for water access when the rights are foregrounded in democratic governance.

Do Social Rights Affect Social Outcomes?

AbstractWhile the United Nations and NGOs are pushing for global judicialization of economic, social, and cultural rights (ESCRs), little is known of their consequences. We provide evidence of the effects of introducing three types of ESCRs into the constitution: the rights to education, health, and social security. Employing a large panel covering annual data from 160 countries in the period 1960–2010, we find no robust evidence of positive effects of ESCRs. We do, however, document adverse medium‐term effects on education, inflation, and civil rights.

Economic, social and cultural rights of women

PurposeThe purpose of this paper is to highlight the legal framework and challenges to economic, social and cultural (ESC) rights of women.Design/methodology/approachThis paper focuses on ESC rights of women. ESC rights are recognized under primary instrument International Covenant on Economic, Social and Cultural Rights (ICESCR), which is adopted by the United Nations (UN) in 1966. States have obligations to respect, protect and fulfil ESC rights. This paper aims to address ESC rights of women in particular. It analyzes the international legal framework including provisions of UN Charter, the Universal Declaration of Human Rights (UDHR) and ICESCR and its optional protocol. It also analyzes provisions of Women’s Convention and identifies its linkage to ICESCR.FindingsESC rights are not justiciable and growing debate over justiciability is important for consideration. Also, there exist certain challenges for the progressive realization of ESC rights which need to be addressed by analyzing provisions of the existing legal framework and Maastricht Guidelines. The argument developed throughout the paper is that women’s ESC rights may be protected at all levels by the progressive realization of these rights. The issue of justiciability may also be resolved to protect the basic needs and interests of women that leads to their empowerment.Originality/valueThe work is original and not published by any other journal so far.

The role of human rights in implementing socially responsible seafood.

Sustainability standards for seafood mainly address environmental performance criteria and are less concerned with the welfare of fisheries workers who produce the seafood. Yet human rights violations such as slavery and human trafficking are widespread in fisheries around the world, and underscore the need for certification bodies and other seafood supply chain actors to improve social performance, in addition to addressing environmental challenges. Calls for socially responsible seafood have referenced human rights law and policy frameworks to shape the guiding principles of socially responsible seafood and to provide the legal machinery to implement these aspirations, but practical guidance on how to achieve this is lacking. To provide clarity on this challenge, we reviewed the literature concerning human rights in the seafood supply chain, and prepared an analysis of opportunities and challenges to implement socially responsible seafood through relevant human rights, legal and policy instruments. We observe that human rights laws are generally framed in favour of addressing violations of civil and political rights, but there remains considerable scope for applying economic, social and cultural (ESC) rights in this context. Other challenges include weakly defined ESC rights infringements, a lack of straightforward mechanisms to enforce human rights entitlements, and practical difficulties such as resources to support and secure rights. On the positive side, governments can draw on international instruments to inspire national policies and legislation to eliminate illegalities from the seafood supply chain. However, for socially responsible seafood principles to translate into tangible actions, these objectives must be rooted in clear legal obligations and be supported by sufficient national capacity and political will.

Celebrating the Centre for Health, Human Rights & Development (CEHURD), a Ten-Year Old Adult

Ten years in the life of a human rights organization is nearly a lifetime, a fact which is particularly true in the case of organizations in developing country contexts such as Uganda. Consequently, the 10th anniversary celebration of the Center for Health, Human Rights and Development (CEHURD) should not be taken for granted. This is especially true given its pioneering work in the rather neglected area of promoting and protecting the right to health (RTH). At 10, CEHURD is a paragon of the 3Vs: a Vibrant, Vivacious and Vigorous organization offering scholars and practitioners numerous points of reflection on the efficacy of protecting economic, social and cultural rights (ESCRs), against the backdrop of retreating state obligations, the onslaught of neo-liberal economic policies and dealing with a judicial system only grudgingly accepting the justiciability of this often-neglected category of human rights.

Realization of the Right to Education

This paper evaluates the state of education as a human right and demonstrates that it is possible to implement and ultimately protect the right to education within a domestic context. Despite its importance, the right to education has received limited attention from scholars, practitioners and international and regional human rights bodies as compared to other economic, social and cultural rights (ESCRs). NGOs have been increasingly interested in using indicators to measure and enforce a state‘s compliance with its obligations under international human rights treaties. Education is one of the few human rights for which it is universally agreed that the individual has a corresponding duty to exercise this right. This paper first of all draws up an inventory of the many international instruments which mention the right to education and analysethem in order to obtain a more precise idea of the content of this right, which often appears blurred. The paper also discusses the right to education as it is guaranteed in articles 13 of the Covenant on Economic, Social and Cultural Rights (ICESCR), article 28 of the Convention on the Rights of the Child (ICRC) and article 13 of the Protocol of San Salvador. The enjoyment of many civil and political rights, such as freedom of information, expression, assembly and association, the right to vote and to be elected or the right of equal access to public service depends on at least a minimum level of education, including literacy. Similarly, many economic, social and cultural rights, such as the right to choose work, to receive equal pay for equal work, the right to form trade unions, to take part in cultural life, to enjoy the benefits of scientific progress and to receive higher education on the basis of capacity, can only be exercised in a meaningful way after a minimum level of education has been achieved. Similarly, this paper discusses education in Kenya as a basic need and a human right (enhancing access, participation, retention, achievement and quality of schooling) to girls and boys and by extension women and men especially with the promulgation of the new Constitution of Kenya 2010 that recognizes education as a Bill of Rights and everyone is bound by the Bill of Rights. This means that all people in Kenya must respect education as a human right. The Bill binds all government institutions and state officers. They are required to respect human rights and deal appropriately with the special needs of individuals and groups in our society. In this paper, the provision of education in the first 4 to 18 years of schooling is considered to be basic, thus a basic right in Kenya

Neglecting Social and Economic Rights Violations in Transitional Justice: Long-Term Effects on Accountability: Empirical Findings from the Extraordinary Chambers in the Courts of Cambodia

This article builds on theories about the expressive function of law and uses Structural Topic Modelling to examine how the prioritisation of civil and political rights (CPR) issues by the Extraordinary Chambers in the Courts of Cambodia (ECCC) has affected the agendas of Cambodian human rights NGOs with an international profile. It asks whether these NGOs’ focus on CPR issues can be traced back to the near-exclusive focus on CPR issues by the court, and whether this has implications for the creation of a “thick” kind of human rights accountability. It argues that, considering the nature of the Khmer Rouge's genocidal policy, it would have been within the mandate and capacity of the court to pay more attention to actions that also constituted violations of economic, social, and cultural rights (ESCR). The fact that the court did not do this and instead almost completely obscured ESCR rhetorically has triggered a similar blind spot for ESCR issues on the part of human rights NGOs, which could have otherwise played an important role in creating a culture of accountability around this category of human rights. Does this mean that violators of ESCR are more likely to escape prosecution going forward?