ESC Rights Research Articles

From Doughnut Economics to Doughnut Jurisprudence: A Human Rights Perspective

Abstract Earth system science indicates the existence of planetary boundaries. Several of these ecological limits have been transgressed, raising serious human rights concerns. Concurrently, persistent poverty and significant economic disparities continue to challenge societies and human rights law and scholarship. How to reform economies to respect planetary boundaries and at the same time address deprivation and socio-economic inequalities is the subject of a rich ‘degrowth’ literature. Surprisingly, this literature received minimal attention from human rights scholarship. Building upon Raworth’s influential concept of Doughnut Economics, this paper aims to bridge this gap by investigating whether human rights can encompass ecological limits (outer circle of the doughnut) and how these limits relate to social priorities embodied in human rights law (inner circle of the doughnut). To do so, the paper is structured along two sub-sections. The first section examines the relevance of core planetary boundaries, particularly biosphere integrity and climate change, within the context of human rights law. In the second section, the paper addresses the relationship between the inner and outer circle of doughnut economics from a human rights perspective. Drawing on critical literature, the article problematizes the ‘growth paradigm’ in human rights practice but also offers alternative readings. In this final part of the article, the author demonstrates how central doctrines of ESC rights, such as progressive realization and non-retrogression, could be interpreted in a way agnostic of economic growth.

Judicial Enforceability of Economic, Social and Cultural Rights in Bangladesh: A Critical Evaluation

Abstract The implementation of economic, social and cultural rights (esc rights) continues to pose uncertainties in the modern world. Given that many states constitutionally treat such rights as aspirational and not justiciable, it is difficult to enforce them judicially at the domestic level. Bangladesh has embodied these rights in Part ii of its Constitution as a social welfare goal of the State. This article takes Bangladesh as a case study and examines the international legal framework for the implementation of esc rights at the domestic level. Making a comparison with other jurisdictions, such as India and South Africa, the article examines the approach of the judiciary of Bangladesh (the Supreme Court) in giving effect to these rights. Lastly, the article argues that the court should devise appropriate and effective enforcement mechanisms for these rights.

The Implementation of Economic, Social and Cultural Rights in Canada: Between Utopia and Reality

Canada has been at the forefront of the recognition of human rights, including economic, social and cultural rights (ESC rights) in the international scene. As a party to the International Covenant on Economic, Social and Cultural Rights,1 Canada has, over the years, implemented in legislation and case-law some ESC rights such as the right to health, education and social welfare.While ESC rights were not explicitly identified in the Charter of Rights and Freedoms,2 which forms part of the Canadian Constitution, ESC rights in different forms have received some protection in the Canadian legal order. An analysis of the Canadian record with respect to ESC rights demonstrates the immense gap between a glorified image of Canada as an international human rights proponent (the ‘utopia’) and the actual implementation of internationally recognized human rights in Canada (the ‘reality’). As Canada is bound to face major transformational changes to its economy and social fabric in the years to come, the Courts will have to adapt quickly and efficiently to ensure a smooth transition. This paper overviews the evolution of the case-law on ESC rights in Canada in light of its international obligations, and suggests, the relevant ESC rights jurisprudence signals a disconnect with Canada’s international obligation ‘requiring progressive implementation to the maximum of available resources by all appropriate means.’

Economic, social and cultural rights and their dependence on the economic growth paradigm: Evidence from the ICESCR system

In light of the expanding critical academic literature on the social and ecological limits to a growth-based paradigm, this article investigates the ties between economic, social and cultural rights (ESC rights) and economic growth in the case law of the Committee on Economic, Social and Cultural Rights (CESCR). It shows that the CESCR assumes economic growth to generally improve the realisation of ESC rights because it increases States’ financial capacity and leads to employment creation. However, while the Committee deems that growth models should be inclusive, the CESCR never adopts a critical perspective on the possibility or desirability to pursue economic growth indefinitely. Despite recent evidence on the contested possibility to decouple economic activity from resource use, the Committee’s recent ecological turn remains embedded in the growth paradigm. This article argues that the Committee should advocate towards decreasing the dependence of ESC rights on growth, especially when a State has reached a certain level of affluence.

Any Chance for the Enforceability of the Human Right to Subsistence?

It is not true that the idea of the right to subsistence should not give rise to much controversy. In fact, social rights are not considered as fundamental rights by everyone. The aim of this paper is to analyze whether abstract social rights –and the right to subsistence in particular- should be put in constitutions and laws and if judges should be given powers to interpret them. The philosophical foundations and the content of the right are studied and five great challenges are presented, although the most powerful one is to focus on the social and political enforceability of the fundamental right to subsistence. Assessing the effectiveness of the right to subsistence, and the right to food particularly, is a complex issue. In the legal discourse, the question seems to be only suggested. Even when the Constitutions expressly recognize this right in some countries, its implementation faces many constraints. The progressive realization of ESC rights requires a complex interaction of policies and programs in a wide range of sectors and institutions.The scientific method used in this work is the legal-sociological method, regarding the understanding of the rules, the lack of them, their effectiveness, etc. Several methodological techniques have been used, such as social and legal analysis, legal deduction and induction, description and interdisciplinarity.

The Protection of Non-nationals’ Economic, Social and Cultural Rights in un Human Rights Treaties

Abstract The decade of austerity policies resulting from the 2008 economic crisis significantly impeded the realisation of economic, social and cultural (esc) rights worldwide, especially for non-nationals who became targets of populist nationalist ideologies. The Coronavirus disease (covid-19) pandemic and its subsequent recession have heightened existing levels of inequalities, putting non-nationals’ access to health, housing, food, water and work under unprecedented strains. It is thus, crucial to analyse the extent to which un human rights treaties recognise non-nationals’ esc rights, in order to assess their ability to offer protection in this context. This article sheds light on the ambiguities of key un human rights treaties in this regard. It then analyses the attempts of relevant un treaty bodies to circumvent such issues; and finally suggests legal paths allowing un treaty bodies to further assert their protection of non-nationals’ esc rights during the covid-19 pandemic.

Human rights and democracy in economic policy reform: the European COVID-19 response under scrutiny

ABSTRACT This article argues that the impact of economic policy reforms on democratic institutions might compromise the enjoyment of human rights, especially economic, social, and cultural rights (ESC rights). This impact is twofold: First, economic reform policies driven by international and supranational institutions compromise democratic self-determination. Second, economic reform policies driven by the need to reduce public expenditure might put marginalised groups at risk and hamper their democratic participation. Since the realisation of ESC rights requires a framework for legitimate redistributive decisions, any such impairment of democratic institutions poses a risk to the realisation of ESC rights. Courts are unlikely to fully compensate for this risk. The Guiding Principles on Human Rights Impact Assessments of Economic Reforms (the Guiding Principles) devise a way for jointly strengthening human rights and democracy. Crucially, they urge states to subject economic policy reforms to democratic control. Human rights impact assessments may empower the public sphere and shift economic policy reforms from the Arcanum of high-level international negotiations back to democratic processes. Moreover, the Guiding Principles oblige states to design comprehensive and participatory economic policy reforms. The article shows the potential of the Guiding Principles by probing the European Union's response to COVID-19 and suggests improvements.

Introduction to ICESCR Optional Protocol [OP-ICESCR

The present document on Introduction to OP-ICESCR is an addition to the on-going work on the Human Rights Framework on ESC rights. It covers some basic information on the objectives of the OP and the key provisions dealing with mechanisms and processes. Much emphasis is given to highlighting the expansion of the normative framework through the works of the Committee under the ICESCR. The document highlights a few of the important standards developed, interpreted and applied by the Committee under the mechanisms provided under the OP. The document also mentions a few areas that need further study and analysis in order to understand the impact the OP-ICESCR mechanisms in domestic jurisdictions, particularly of the member states.

Legal Analysis of the Implementation of the Principle of Progressive Realization Obligations in Regional Financial Management In Indonesia

The main challenge in political decentralization in Indonesia is how local government fulfil human rights by maximizing available resources. These challenges are constructed in situations where demands for the fulfilment of human rights are limited by local government budgetary conditions. While in the Human Rights Principle, Resource limitations are not a strong reason to delay the fulfilment of Human Rights, due to the obligation of progressive realization of the fulfilment of human rights. This study is entitled Legal Analysis of the Implementation of the Principle of Progressive Realization Obligations in the Management of regional finances, trying to answer several legal issues, namely; first, how is the position of the Principle of Progressive Realization Obligations in the management of regional finances; second, how to Implement Progressive Realization in the Management of regional finances; third, fulfilment of human rights in ideal regional financial management in the future. The author limits in this paper the specific ESC rights; The Right to Food, the Right to Housing and social welfare. To answer the above, the authors chose 4 regions as the object of research, namely the Bangka Belitung Archipelago Province, South Kalimantan Province, Malang City, Denpasar City and Palu City. There are a number of important things in this research that produce uncertainty in fulfilling human rights in the regions. And finally, it is necessary to improve regulations at the national and regional levels in an effort to fulfil human rights. Keywords : Obligations of Progressive Realization, Regional Finance, Fulfilment of Human Rights. DOI: 10.7176/JLPG/100-06 Publication date: August 31 st 2020

Assessment into Feasibility of Ratifying the OP-icescr from the Context of Justiciability of Economic, Social and Cultural Rights in Bangladesh

Justiciability of Economic, Social and Cultural (esc) rights has been a long drawn contested topic in the legal discourse of Bangladesh. Though the emancipation from social and economic exploitation was one of the driving factors behind the emergence of Bangladesh as an independent nation, esc rights are not adequately protected under its Constitutional framework and have received scant judicial protection. Despite the coming into force of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-icescr) in 2013 and the mounting pressure from global community, Bangladesh seems to have made an unflinching vow of continuing the legacy of denial towards judicial enforcement of esc rights. This article examines the feasibility of ratifying the OP-icescr for Bangladesh.

Provision of Remedies for Violation of Economic, Social and Cultural Rights: A Comparative Study of the United Nations, Inter-American and African Human Rights Systems

The effectiveness of human rights adjudicative procedures partly, if not most importantly, hinges upon the adequacy of the remedies they grant and the implementation of those remedies. This assertion also holds water with regard to the international and regional monitoring bodies established to receive individual complaints related to economic, social and cultural rights (hereinafter ‘ESC rights’ or ‘socio-economic rights’). Remedies can serve two major functions: they are meant, first, to rectify the pecuniary and non-pecuniary damage sustained by the particular victim, and second, to resolve systematic problems existing in the state machinery in order to ensure the non-repetition of the act. Hence, the role of remedies is not confined to correcting the past but also shaping the future by providing reforming measures a state has to undertake. The adequacy of remedies awarded by international and regional human rights bodies is also assessed based on these two benchmarks. The present article examines these issues in relation to individual complaint procedures that deal with the violation of ESC rights, with particular reference to the case laws of the three jurisdictions selected for this work, i.e. the United Nations, Inter-American and African Human Rights Systems.

Contesting Austerity: Genealogies of Human Rights Discourse

The dominant understanding of the role of human rights in the context of austerity induced by sovereign debt crises has shifted markedly over time. It reflects, and may have influenced, the genealogies of human rights law in the postwar era. Four different paradigms emerge. During the 1970s, the decade preceding the debt crisis of the 1980s, the idea of austerity as a response to debt crises was contested by the basic (human) needs approach and by the proposal of a New International Economic Order. Both strands of thought showed some affinity with human rights law, although not without ambiguity, understanding self-determination as a structural requirement for ESC rights enjoyment. Counterintuitively, though, the debt crisis beginning in the 1980s silenced, rather than provoked, any form of human rights-based critique. The IMF managed to shift the focus of the debate from human needs to human capital, in line with the emerging Washington Consensus. When the Iron Curtain fell, sovereign debt restructuring became more generous, but debtor states had to pay with ever more intrusive forms of austerity, including structural conditions such as respect for civil and political rights. This “governance paradigm” of human rights was countered by a transformative paradigm of human rights in which civil society articulated its critique of austerity. The IFIs avoided the issue of human rights, but reacted by adding “social” components to austerity that aligned with their focus on efficiency and growth and further entrenched sufficiency. The impact of austerity on the European periphery led to lots of human rights litigation, but a number of structural obstacles prevented its success. Instead, the crisis aftermath saw enormous progress in the political recognition of human rights as a relevant standard for austerity. This has given rise to a new political paradigm of human rights. While this genealogy shows the contingency of human rights discourse in relation to austerity, it reveals their potential for challenging economic expertise and empowering progressive views, provided human rights are used to politicize, not to depoliticize, distributive questions. The limits of human rights discourse are the limits of our imagination.

Bantuan Dana Bank Dunia Dalam Perspektif Pemenuhan Hak-hak Ekosob: Studi Kasus Pada Sektor Pendidikan di Indonesia

The World Bank assistance in the education sector in Indonesia as a developing country faced with an interest in the fulfillment of the right to education in the perspective of Economy, Social, and Culture (ESC) rights for the society. For Indonesia, World Bank assitance must be in line with the national regulation, therefore harmonization into national law is necessary. The World Bank assistance is aimed at accelerating free trade, and the achievement of global education standards for the recipient countries. Thus, the alignment of the education sector with the interests of the economy and the free market may threaten the education rights of Indonesian citizen. This article will focus on the fulfillment of education right in Indonesia. Seeing the facts from the background, the formulation of the problems raised in this legal research are: (1). characteristics of educational assistance by the World Bank for developing countries. (2). Compatibility between World Bank assistance standards with the fulfillment of ESC rights in education in Indonesia. The purpose of this research is to analyze the characteristics of educational assistance by the World Bank for the third world countries and the suitability of the World Bank assistance to the fulfillment of ESC rights in education in Indonesia. This article based on the normative legal research method, and employs the statute and conceptual approach. It is found two results. First, the World Bank assistance to the education sector has been implemented in several countries, including Indonesia. The fulfillment of the right to education in developing countries have been experiencing an intervention and support from the World Bank. The World Bank asisstence is aim at achieving the goal of education, and to ensure the aid has been allocated for education projects, and to provide students with global education standards. Second, by employing the SABER standard with 4-a method to measure the suitability of the World Bank assistance in the fulfillment of the right to education in Indonesia, it is found that there remain a problem in the ‘acceptability’ standard. The World Bank should give more weights to the local wisdoms when providing asisstence in the recipient country.

Los derechos económicos, sociales y culturales, hacia una política pública de justiciabilidad: el derecho a la consulta (Economic, Social and Cultural Rights, Towards a public policy of justiciability: The right of consultation)

Se reflexiona sobre como en el caso mexicano los derechos economicos, sociales y culturales (DESC) han sido reconocidos legalmente, pero en los hechos presentan retrocesos significativos, sobre todo en el derecho a ser consultado o el Derecho a la consulta plasmado en el Convenio 169 de la Organizacion Internacional del Trabajo. Este instrumento juridico internacional ha servido como argumento contestatario de los pueblos y comunidades (sobre todo indigenas) a los intentos de impactar sus territorios con proyectos de infraestructura, afectandolos directa o indirectamente. En este sentido planteamos la Consulta como el espacio de oportunidad para la construccion de una nueva Relacion del Estado con sus ciudadanos, con los indigenas y la sociedad mexicana en general, tal como lo senalan los Acuerdos de San Andres de 1996, suscritos entre el Ejercito Zapatista de Liberacion Nacional (EZLN) y los gobiernos federal y del estado de Chiapas.It reflects on how in the Mexican case the economic, social and cultural rights (ESCR) have been legally recognized, but in fact they present significant setbacks, especially in the right to be consulted or the right to consultation set forth in the International Labour Organization’s Convention 169. This international legal instrument has served as a rebellious argument of the peoples and communities (especially indigenous) to the attempts to affect their territories with infrastructure projects, affecting them directly or indirectly. In this sense, we propose the Consultation as the opportunity space for the construction of a new Relationship of the State with its citizens, with the indigenous and Mexican society in general, as indicated in the San Andres Accords of 1996, subscribed between the Zapatista Army of National Liberation (EZLN) and the federal and state governments of Chiapas.Available from: https://doi.org/10.35295/osls.iisl/0000-0000-0000-0959

Pathways to Justice in a Globalised World: An Assessment of the Justiciability of the Extraterritorial Obligations in the Area of Economic, Social and Cultural Rights

In the era of neoliberal globalisation, the enjoyment of human rights is increasingly contingent on extraterritorial forces. If human rights law is to meet the demands of social justice, fulfil its promise of universality, and account for power in a globalised world, human rights obligations must extend beyond States’ borders. While the extra-territorial obligations (‘ETOs’) of States regarding economic, social and cultural rights (‘ESC rights’) are being developed, it remains to be seen how they will be enforced. Addressing the issue, this paper considers whether the ETOs pertaining to ESC rights can and should be judicially enforceable. The paper submits that: (1) there is a strong normative case that the ETOs of ESC rights should be subjected to judicial review; and (2) courts are capable of enforcing their attendant obligations. Consequently, potential pathways exist for communities to seek justice for violations of their ESC rights in a globalised world.

Litigating Economic, Social and Cultural Rights against Transnational Corporations in Indonesian Court

States should take appropriate steps to ensure the effectiveness of domestic judicial mechanisms when addressing business-related human rights abuses. These steps may include ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. To a certain degree, these problems exist in Indonesia’s judicial remedy mechanism. This article examines court decisions in five cases involving Transnational Corporations (TNCs). These decisions are examined to identify challenges and opportunities in bringing a case on ESC rights violations against TNCs. It is found that claim on ESC rights violation may be brought to the court, and the court has jurisdiction to entertain the case. However, of the five cases filed against TNCs, only in one case has the court decided in favour of the plaintiff. Most of the cases were rejected on procedural matters. This situation suggests that it remains burdensome for the victims of ESC rights violations to seek remedy at the court. There are procedural burdens that has to be faced by plaintiff when bringing ESC rights case against corporations, particularly TNCs. Nevertheless, there are new develop-ments in relation with pursuing ESC rights in court. One of the important development is private business contract between the govern-ment and private corporations may be annulled by the court, if the exercise of the contract would violate the government's obligation to fulfil human rights of the citizens

The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa

Half a century ago, the United Nations General Assembly unanimously adopted two great covenants, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), which brought force of law to the rights declared in the Universal Declaration of Human Rights. Both covenants have been widely ratified by the vast majority of African States. However, a largely neglected area of study has been assessing the influence of the ICESCR in various parts of the world including Africa. This article assesses the influence of the ICESCR in Africa. It seeks to show how the ICESCR, as interpreted by the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has, through the 50 years since its adoption, had influence on the regional and domestic protection of economic, social and cultural rights (ESC rights) in Africa. The article begins by considering the influence of the Covenant on the regional protection of human rights in Africa. This is followed by an analysis of the influence of the Covenant on the protection of ESC rights in domestic legal systems in Africa focusing primarily on the constitutional protection of ESC rights. It then considers the limited influence of the Covenant on national courts’ jurisprudence in African States applying dualist and monist approaches to international treaties. It ends by making recommendations to maximize the influence of the ICESCR in the future.

The Struggle for Economic, Social and Cultural Rights

The stated objective of Amnesty International’s Human Rights for Human Dignity: A Primer on Economic, Social and Cultural Rights is twofold: to ‘serve not just as a useful resource for activists but as a stepping stone for taking practical action’ (Amnesty International 2014: 143). This 2014 Primer is an update of the 2005 edition, which was published after Amnesty International broadened its mandate in 2001 in order to include all human rights and a diversity of duty bearers (Amnesty International 2014: 17). The Primer certainly succeeds in its first objective of providing a useful resource. It outlines key features of economic, social and cultural rights (ESC rights) in Chapter 1; provides an overview of most ESC rights in Chapter 2 (conspicuously absent is the right to social security); spells out obligations in Chapter 3; and clarifies ESC rights of a number of groups in Chapter 6. Chapter 4 explains how violations may be identified, and dismisses some often-used excuses for non-realization of ESC rights: armed conflict, and insufficient resources. Chapter 5 briefly dwells on some of the new duty bearers, that is, companies and the international financial institutions.

STUDI IMPLEMENTASI NILAI-NILAI HAM DALAM PERATURAN DAERAH DAN DAMPAKNYA BAGI PEMENUHAN HAK EKONOMI, SOSIAL DAN BUDAYA DI KABUPATEN BANTUL PROVINSI DIY

Human rights conditions still have not significant progress yet. It will be shown in the absence of serious measures and well-planned by the government for the fulfillment of human rights both in the field of economic, social and cultural as well as in the field of civil and political rights. This research was conducted to describe the problems as follows: (1) How is the process of formulating the values of human rights in the draft of local regulations?, and (2) What is the impact of local regulations in the fulfillment of ESC rights of citizens? The aims of the study are: identify and assess the process of formulating the values of human rights in the draft regulations, and the impact of local regulations in the fulfillment of ESC rights. This is a normative legal research, its find the truth based on the logic of the legal thougth. The analysis conducted on the laws and regulations, which its containing norms of protection and fulfillment of ESC rights. In terms of empirical conducted to assess the impact of the local regulation on the community. The research conclusion are the Government District of Bantul have included ESC rights values into ones that are made in the period 2005-2009, although not all values can be accommodated into the local regulation. Regulation set a positive impact in the effort to fulfill the responsibility of the local government in fulfillment and protection of ESC rights.

The Development of Economic, Social and Cultural Rights under the African Charter on Human and Peoples’ Rights by the African Commission on Human and Peoples’ Rights

During the last thirty years the African Commission on Human and Peoples’ Rights (African Commission) has decided several communications on economic, social and cultural (esc) rights protected under the African Charter on Human and Peoples’ Rights (African Charter). While the Commission was initially reluctant to develop the content of these rights, it has since 2001 been developing, at an expanding pace, the scope, content and nature of state obligations under African Charter to respect, protect and fulfil esc rights. This article seeks to provide a critical analysis of the burgeoning case law concerning the development of esc rights by the African Commission and the legal impact thus far it has had on the enjoyment of esc rights in Africa, encompassing rights of hitherto marginalised and excluded individuals and groups, a topic which is relatively given less attention in the existing literature. The article examines the legal bases and content of key communications decided by the African Commission. Conclusions are then drawn concerning the reasons for the development of esc rights obligations by the African Commission and areas of potential clarification and expansion are identified.