Progressive Realization Research Articles

Human rights in crisis: securing the International Covenant on Economic, Social and Cultural Rights (ICESCR) in economic downturns

In this paper, the authors analyse states parties’ obligations under the ICESCR in times of economic crisis according to the international legal framework of obligations of conduct and result. In respect of the covenant’s obligations of result, the authors examine the implementation of the progressive realisation standard, with an emphasis on the minimum core of rights, prioritisation of the most vulnerable members of society and the criteria necessary for the permissibility of regressive measures. They then consider five obligations of conduct: to submit reports; to develop plans of actions; to monitor outcomes; to take some measures; and to eliminate discrimination.

JUDICIAL REVIEW OF THE RIGHT TO HEALTH AND ITS PROGRESSIVE REALISATION: THE CASE OF THE CONSTITUTIONAL COURT OF PERU

Notions of justice have historically been attributed to the range of civil and political rights, most prominently set forth in the International Covenant on Civil and Political Rights (ICCPR). The ICCPR imposes upon states clear obligations to respect and guarantee these rights to everyone within their respective jurisdictions; with the result being that civil and political rights are unquestionably the subject of judicial adjudication at the national and international level. A somewhat different approach has been taken to economic, social and cultural rights, often referred to as second generation rights. These are often associated with ideas of 'aspirational' policy goals, rather than of rights that impose specific and judicially enforceable obligations. Nonetheless, in some jurisdictions, constitutional litigation has proved to be an effective avenue for the realization of economic, social and cultural rights, and particularly of the human right to health. The purpose of this paper is to analyze the judicial review undertaken by the Constitutional Court of Peru of the human right to health, and particularly the notion of progressive realisation. Through interpretation carried out in four different cases, this national court has examined the scope and contours of the human right to health, analyzing elements of its normative content, and elucidating in concrete cases the often vaguely understood principle of progressive realisation. As will be demonstrated in this paper, the Peruvian Constitutional Court has contributed to the consolidation of the case for judicial enforcement of the right to health in domestic law, joining the efforts of a handful of other domestic courts in the world which, through innovative approaches, have taken steps forward in clarifying the content of this right and the parameters for its implementation in line with international human rights law.

Globalization of Public Health Law and Ethics

The Constitution of the World Health Organization (1946) states that the "enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being without distinction of race, religion, political belief, economic or social position." The international legal framework for this right was laid by the Universal Declaration of Human Rights (1948) and reaffirmed in the International Covenant on Economic, Social, and Cultural Rights (1966) and the Declaration of Alma-Ata (1978). In recent years, the framework has been developed on 10 key elements: national and international human rights, laws, norms, and standards; resource constraints and progressive realization; obligations of immediate effect; freedoms and entitlements; available, accessible, acceptable, and good quality; respect, protect, and fulfill; non-discrimination, equality, and vulnerability; active and informed participation; international assistance and cooperation; and monitoring and accountability. Whereas public health law plays an essential role in the protection and promotion of the right to health, the emergence of SARS (2003) highlighted the urgent need to reform national public health laws and international obligations relating to public health in order to meet the new realities of a globalized world, leading to the WHO Framework Convention on Tobacco Control (2003) and the revision of the WHO International Health Regulations (2005). The Asian Institute for Bioethics and Health Law, in conjunction with the Republic of Korea's Ministry of Health and Welfare and the WHO International Digest of Health Legislation, conducted a comparative legal analysis of national public health laws in various countries through a project entitled Domestic Profiles of Public/Population Health Legislation (2006), which underscored the importance of recognizing the political and social contexts of distinct legal cultures, including Western, Asian, Islamic, and African.

Instruments of Law Reform: The Supreme Court and the Law Commissions of the United Kingdom

This article argues that law reform is the pursuit and progressive realisation of the ideal form of law through a programme of positive and significant legal change from within the legal field. The article concludes that the Supreme Court and the Law Commissions are complementary and the only instruments of law reform operating in the United Kingdom today.

Hunger and the Law: Rethinking the Right to Food

We live in the age of rights. This is also the age of economic prosperity. Such general characterizations, however, mask cruel irony of massive deprivation. For billions, both human rights and prosperity are myths. For them, life is still ‘short, nasty, and brutish.’ Nothing better epitomizes the irony besetting the unprecedented global prosperity and the hypocrisy of human rights rhetoric than the state of global hunger. The world produces more food than is needed to feed every person on the planet; yet, around a billion people go hungry everyday. Few things are more scandalous. But this is also a question of law. The fundamental right of everyone to be free from hunger has been sanctioned in legally binding human rights instruments and numerous declarations. Thus, although this is often forgotten, hunger represents the most flagrant human right violation in the world today. Lack of political will underpinned by ideological bias might be the major hurdle. But there is also a degree of conceptual uncertainty. The right to be free from hunger is viewed as a component of the broader right to adequate food. However, while both rights relate to food, they are substantially different. Indeed, in some respects, the right to be free from hunger is more akin to freedom from torture than to the right to adequate food. Treating the fundamental right to be free from hunger as a separate norm imposing unconditional and immediate obligations is warranted by the text of the relevant treaty provisions (including article 11 of the ICESCR). Crucially, it extricates the right from practical contingencies upon which the progressive realization of the right to adequate food is predicated.

Freedom: East and West

This paper explains some of the uses of the word ‘freedom’ in Western as well as in Indian philosophy. Regarding the psychological concept of freedom or free will, this paper focuses on the distinction between fatalism, determinism, types of compatibilism, and libertarianism. Indian philosophers, by and large, are compatibilists, although some minor systems, such as Śākta Āgama, favor a type of libertarianism. From the Indian perspective the form of life of human beings has also been mentioned in the discussion of free will. Regarding metaphysical freedom, I discuss the views of the Bhagavad Gītā and Swami Vivekananda in Sect. III. K.C. Bhattacharyya, a neo-Advaita Vedāntin, has discussed degrees of freedom of the subject at several levels. According to him, spiritual progress lies in the progressive realization of the freedom of the subject. I compare his view with the classical Advaita concept of freedom. I have also addressed the question of whether freedom from suffering can be realized at social and global levels. In this context I have mentioned some of the interpretations of the great saying ‘I am Brahman,’ and how freedom can be realized at the global level by using the Advaita concept of ‘oneness.’

The Metrics of Human Rights: Complementarities of the Human Development and Capabilities Approach

Capabilities and human rights are closely related and share common commitments to freedom and justice as central political objectives. Much of the literature on this relationship has focused on defining the overlaps and differences between them as theoretical concepts. This paper explores a different aspect of the relationship, namely the overlaps and differences in their respective measurement approaches. The paper argues that human development indicators that are used to evaluate policies for capability expansion, or human development, cannot substitute for human rights indicators because of the differences in them as concepts as well as the way that these concepts are used and applied. Human rights indicators are used to assess the accountability of the state in complying with the obligations that are codified in international and domestic law. However, the literature of development economics and the methods of empirical analysis and aggregative summary measurements extensively used in the human development and capabilities approach can overcome some of the constraints of conventional methods used in human rights assessments. These possibilities are illustrated in the Economic and Social Rights Fulfillment Index, recently developed by Fukuda‐Parr, Lawson‐Remer and Randolph that develops an empirical model of ‘progressive realization’ and provides an empirical basis for setting benchmarks.

Framing the issues around affirmative action and equity in South Africa: policy, progress, prospects and platitudes

Framing the issues around affirmative action and equity in South Africa: policy, progress, prospects and platitudes Vasu Reddy (bio), Relebohile Moletsane (bio), and Temba Masilela (bio) Introduction and Rationale Globally, Affirmative Action (AA) has been used widely both as a policy tool as well as for social redress and transformation. Far from being simply common cause, in a number of geographical contexts, arguments for its moral and instrumental rationales have not waned (Guillebeau 1999, Hall 2004, Htun 2004, Human 1996, Moses 2010, Sacks 1996). For example, in South Africa, as is the case elsewhere, AA has generated renewed public debate, discussion and dissent (most recently in the case taken up by the trade union Solidarity against the Tshwane Municipality)1. Scholars and activists on both sides of the issue have vociferously voiced their support or dissent in various media. Taking up the debate, Bentley and Habib (2008: 24) conclude: The implementation of redress since 1994 has both positive and negative intended and unintended consequences. It has contributed to ensuring a more demographic representative nation, although this has not been undertaken as effectively or even in the form [that] was envisaged by the legislation. The redress initiative may also have reified racial identity and as a result inhibited the emergence of conditions for the realisation of a cosmopolitan citizenship. Like most concepts, AA defies (and possibly resists) full encapsulation. Although much has been written about and spoken on AA, one of the most contentious, controversial, and critical questions regarding the concept still remains: What is the matter with AA? Phrasing the question this way implies that AA has much to do with ideological, philosophical and indeed practical [End Page 1] implications. In extending this question to South Africa, the question becomes: What are the specific current meanings of AA in the context of social transformation and redress in the post-1994 era? This question inspires consistent interest in the public conscience in South Africa, and it is in this regard that this journal and others in the field have intermittently focused on the various dimensions of and perspectives on AA in the country. Many contributions have discussed the unintended consequence of AA, including the ‘racial bargain’ and the perpetuation of racial prejudice, as well as the effect of the globalizing market on the implementation of reconciliation polices (see for example, Alexander 2007, Durrheim et al 2007, Guy 2004, Montalti and Bellengère 2008, Southall, 2007). Similarly, some have maintained that nation-building efforts and responses to the social question are interlinked, and that there is no concrete divide between the national and social question, with the consequence that different redistributive struggles might require separate agendas (Mkandawire 2009). It was with the above context in mind that our ‘autobiography of the question’ (Miller 1995), our interest in AA in the South African context, was born. The special issue emerges out of a 2010 international conference, A South African Dream: Negotiating Affirmative Action for Social Cohesion in the Transformative State: Policy, platitudes, progress and prospects. Examining cutting-edge issues in the ongoing delineation of the parameters of AA (as concept, policy, and as practice), the conference was motivated by, among other factors, the fact that the issue has not received much political and policy attention, and that at best it tends to be minimized in the national dialogue. The only exceptions to this consistent minimization tend to be the episodic attention occasioned by the annual reports of the Employment Equity Commission (See, for example, Samantha Enslin-Payne ‘Days of crying wolf about equity are numbered’, Sunday Independent (Business Report Section), 1 August, 2010:9; Chris Barron, ‘Playing the numbers game’, Sunday Times (Business Times), 15 August 2010: 6 and Mpho Sibanyoni, ‘Firms are failing black youth’, City Press (Business Section), 1 August 2010:3). Several questions emerged from the framing of the title of the conference. The first related to the parameters or the borders of the dream vis-à-vis the geographical/political borders of South Africa. For example, in the South African context or in the South African national policy space, would this refer to the progressive realisation of an African Dream or a South African Dream? What are the constitutional and...

The Impact and Effectiveness of the Child Support Grant in Gugulethu, South Africa

For the first time in South Africa's history, the Constitution compels the state to ensure the progressive realisation of a social security grant. The country's constitution commits the state to developing a comprehensive social security system for all South Africans. This study investigates the impact and effectiveness of the Child Support Grant in Gugulethu, Western Cape Province, South Africa. Data used was collected using direct interview schedules with the respondents. The findings suggest that the Child Support Grant is more effective if it is incorporated into the household income, that recipients of the grant mainly spend it on food and in paying school fees for their children. Although the recipients share the same sentiment with regards to the amount of the grant (small), they all agree that it has a positive impact on children's lives, especially when it is combined with the household income.

A Global Framework Convention on Health: Would it Help Developing Countries to Fulfil Their Duties on the Right to Health? A South African Perspective

This article argues from a South African perspective that national experience in attempting to fulfil the right to health supports the need for an international framework. Secondly, we suggest that this framework is not just a matter of good choice or even of justice but of a direct legal duty that falls on those states that have consented to operate within the international human rights framework by ratifying key treaties such as the International Covenant on Economic Social and Cultural Rights (ICESCR), the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW), and the Convention on the Rights of the Child (CRC). States can either accept this duty or face with growing pressure from those who believe in global social justice to find lasting solutions to the terrible inequities in global health standards.

Economic and Social Rights Fulfillment Index: Country Scores and Rankings

Building on a previously proposed methodology for an index of economic and social rights fulfillment, this article presents country scores and rankings based on the Economic and Social Rights Fulfillment Index (ESRF Index). Unlike socioeconomic indicators, which are often used as proxies for the extent to which rights-holders enjoy economic and social rights, the ESRF Index incorporates the perspective of the duty-bearer as well as the rights-holder and takes into account the principle of progressive realization. The resulting scores and rankings provide important new information that complements other measures of economic and social rights fulfillment. The ESRF Index is an important conceptual and methodological breakthrough; although it still does not capture all key human rights principles, such as the rights to participation, nondiscrimination, and equality. The article also analyzes the results of the global ranking and outlines some priorities for further research.

El giro hermenéutico aceptado desde la teoría estructurante del Derecho

La Hermenéutica ha desarrollado consecuencias teóricas de alcance acerca del conocimiento social, evitando con ello los errores de la autocomprensión metódica de las ciencias del espíritu elaborada durante el siglo XIX. Para la hermenéutica de la facticidad, el contexto objetivo del caso sometido a análisis cobra auténtica relevancia, y la acción de comprender es considerada un saber práctico, un saber actuante. Considerada desde esta perspectiva, la Ciencia del Derecho adopta la forma de reflexión sobre la producción jurídica, y con ello enlaza la concepción sostenida por la Teoría Estructurante del Derecho, para la cual, la hermenéutica filosófica adquiere el valor "de ejemplar desde el punto de vista de la "aplicación" y de una "precomprensión" que abarca al propio intérprete". Considerada a modo de "teoría de la producción del derecho", apuesta por el reencuentro de Derecho y Realidad: el Derecho como realidad práctica. La labor de práctica social propia del trabajador del derecho se entiende creativa, abandonándose la diferenciación entre Norma y aplicación de la Norma, y reconociendo lo inevitable de una complementación jurídica productiva llevada a cabo a través del acto reflexivo de generación jurídica. En este quehacer, en lugar de "aplicar Derecho", la actividad del jurista persigue "extraer el Derecho" en su sentido original y radical, tarea llevada a cabo a través de una concreción progresiva de la Norma adaptada al problema. La Norma jurídica, por tanto, es entendida como "producto", y la resolución de cada caso requiere una nueva producción normativa hasta su entrega como Norma de decisión.

Auslandszahnersatz und Dentaltourismus – Zahlungsbereitschaft und Einflussfaktoren auf die Nachfrage nach ausländischem Zahnersatz in Deutschland

With the progressive realisation of the single European market, public interest has been directed towards cross-border healthcare services to an increasing extent. More and more dentures are being imported into Germany from foreign countries. Furthermore, patients are becoming ever more mobile, travelling to other countries to receive prosthetic treatment from dentists. The objective of this evaluation was to determine by means of a dedicated questionnaire the patients' individual preferences for foreign dentures and the potential savings. 1 368 individuals between the ages of 30 and 75 years were interviewed within a representative omnibus survey. The evaluation of the individual willingness-to-pay included 4 treatment scenarios, which were assessed by the participants in a "bidding game". Participants could choose between a "crown scenario" and an "implant scenario", both with the subcategories "foreign dentures" and "dental tourism". The direct comparison revealed a preference for the "foreign dentures" option over "dental tourism". Average willingness-to-pay for the dental tourism option in the crown scenario was calculated as 80 Euro, and in the implant scenario as 280 Euro less in comparison with the willingness-to-pay for the foreign dentures option. The willingness to switch to a less expensive dentist was one of the main determinants in the causal explanation for the variance in willingness-to-pay. Quality proved to be the decisive criterion and was indicated by 92.4% participants. A lower price for dentures played a subordinate role and was only stated as the decisive factor by 31.1% participants. In conclusion, the results clearly indicate that the decision for or against foreign dentures and the extent of willingness-to-pay depends on a range of criteria, of which "price" is only one and not the decisive factor.

The National Heath Amendment Bill 2008 and governmental policy reform: how far is too far?

The public health sector is constantly at pains to provide adequate basic healthcare in many areas of South Africa. However, despite the difficulties faced by the state in this regard and the sharp criticism levelled at it for its failure to ensure a high standard of basic public healthcare, the state has taken it upon itself to draft legislation, in the form of the National Health Amendment Bill 2008 (the Bill), enabling it to regulate the pricing of private healthcare. Has the long arm of the law perhaps stretched too far by attempting to regulate the private healthcare industry? Are these measures reasonable in the state's ongoing battle for progressive realisation of the right to healthcare? I will endeavour to answer these questions, as well as suggest possible alternatives to achieve what the Bill sets out to do. The purpose of this article is, however, not to examine the nature and extent of any possible infringements the Bill may bring about with regard to the right to access to healthcare expressly, but to examine the Bill against the pretext of governmental policy in promoting or realising this right.

When to start antiretroviral therapy in resource-limited settings: a human rights analysis.

BackgroundRecent evidence from developed and developing countries shows clear clinical and public health benefit to starting antiretroviral therapy (ART) earlier. While discussions about when to start ART have often focused on the clinical risks and benefits, the main issue is one of fair limit-setting. We applied a human rights framework to assess a policy of early treatment initiation according to the following criteria: public-health purpose; likely effectiveness; specificity; human rights burdens and benefits; potential for less restrictive approaches; and fair administration.DiscussionAccording to our analysis, a policy of earlier ART initiation would better serve both public health and human rights objectives. We highlight a number of policy approaches that could be taken to help meet this aim, including increased international financial support, alternative models of care, and policies to secure the most affordable sources of appropriate antiretroviral drugs.SummaryWidespread implementation of earlier ART initiation is challenging in resource-limited settings. Nevertheless, rationing of essential medicines is a restriction of human rights, and the principle of least restriction serves to focus attention on alternative measures such as adapting health service models to increase capacity, decreasing costs, and seeking additional international funding. Progressive realisation using well-defined steps will be necessary to allow for a phased implementation as part of a framework of short-term targets towards nationwide policy adoption, and will require international technical and financial support.

Rethinking Macro Economic Strategies from a Human Rights Perspective

Radhika Balakrishnan, Diane Elson and Rajeev Patel propose a novel focus and methodology that allows us to evaluate macro-economic policies from the perspective of the progressive realization of the people's economic and social human rights, and the States’ compliance with their minimal, basic responsibilities to their people.

Deinstitutionalisation and community living: position statement of the Comparative Policy and Practice Special Interest Research Group of the International Association for the Scientific Study of Intellectual Disabilities1

The gradual abandonment of large residential institutions1 and their replacement by small‐scale services to enable people to live well in the community has probably been the most significant policy development in intellectual disability in the post‐war period (Mansell and Ericsson, 1996). This process of ‘deinstitutionalisation’ is well advanced in Scandinavia, the United States of America, Canada, the United Kingdom, and Australasia. In these countries, the policy debate about whether to provide institutions or community services is largely resolved. The questions that remain are those of implementation and particularly of whether the kinds of supported accommodation that have been provided replicate institutional features and should themselves be reformed. For many other countries, the debate between institutional and community services has never been particularly important because most people with intellectual disabilities live with their families and services to support them are relatively undeveloped. In these countries, it should be possible to develop community‐based services directly, without going through a phase of institutional care. In a third group of countries, the dominant form of service provision remains institutional care and the question of whether and how to replace this remains a matter of debate. For example, many central and eastern European countries provide institutions of very poor quality and currently have proposals to renovate, upgrade and extend them using international funds instead of replacing them with services to support people in the community. The international legal framework sets out the right of disabled people to live in the community. The United Nations Convention on the Rights of Persons with Disabilities (United Nations, 2006), which came into force in May 2008, recognises this right through Article 19, which entails the provision of “a range of in‐home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community.” The Convention obliges states to develop community living that will replace institutional care through a process of ‘progressive realisation’. This requires states to take measures to the maximum of their available resources with a view to achieving progressively the full realisation of the rights involved. They must, therefore, move in the direction of realising the rights of disabled people but they are allowed to do so at a rate determined partly by the resources available to them. Good information is central to this process of reform and service development. People making decisions about the pace and scope of change, the kind of services needed and the organisation and management of those services are often faced with strongly‐held opinions from proponents of different service models. The purpose of this position statement by the Comparative Policy and Practice Special Interest Research Group of the International Association for the Scientific Study of Intellectual Disability is to set out concisely the evidence comparing institutional to community‐based services and to draw out the main implications for policy‐makers.

Legal Complexity and State Obligations to the Right to Food: Towards an Analytical Shift of Progressive Realisation

The paper is set out to analyse what it means to study state obligations to progressive realisation of the right to food from the perspective legal complexity. This perspective studies law not in isolation, rather in the existence of multiple legal systems at socio-political space of states. The paper highlights that employing legal complexity, particularly with its understanding on interlegality and space, may enable one to gain insights in the ways that states measure their commitment to carry their obligations to respect, protect and fulfil the right to food.

Trade networks and the Kantian peace

Classical-liberal arguments about the pacifying effects of international trade are revisited, and it is argued that they consistently refer to the ability of trade to provide ‘connections’ between people and to create a perceived ‘global community’. Dependency and openness are commonly used to test for any pacifying effects of trade in the current literature, but these measures fail to capture some of the classical liberals’ key insights. Several network measures are introduced in order to give natural expression to and to develop the classical-liberal view that trade linkages reduce interstate conflict. These measures applied to trade flows are incorporated in the Russett & Oneal triangulating-peace model. The main results are that trade networks are indeed pacifying in that both direct and indirect trade linkages matter, and as the global trade network has become more dense over time, the importance of indirect links by way of specific third countries has declined, and the general embeddedness of state dyads in the trade network has become more relevant. These findings suggest that the period since World War II has seen progressive realization of the classical-liberal ideal of a security community of trading states.

The Emerging Human Right to Land

AbstractThis article identifies the emergence of the right to land in international human rights law, and which measures of implementation are called for to ensure the full realization of this right. In certain contexts, the right to land may be seen as a self-standing right, whether it is protected as an element of the right to property, whether it is grounded on the special relationship of indigenous peoples to their lands, territories and resources, or whether it is a component of the right to food. In other cases, the right to land may be said to be instrumental to the right to food: it is protected as an indispensable means through which people can produce food, for their own consumption or as a source of income allowing them, in turn, to purchase food. In making the case for the explicit recognition of the right to land in international human rights law, this article recalls the current pressures on land; it examines the protection of landusers in their existing access to natural resources; and it discusses whether agrarian reform may be seen as a component of the progressive realization of the emerging human right to land.