The International Human Rights Internship Program

The International Human Rights Internship Program (IHRIP) was founded in 1976. IHRIP’s goal is to promote observance of the International Bill of Human Rights by helping to strengthen human rights organizations and the human rights movement as a whole. IHRIP pursues its goal by:

1)supporting professional development projects for staff of human rights organizations and training opportunities for individuals committed to human rights protection and promotion;

2)facilitating the exchange of experience and expertise among organizations through gathering, analyzing and disseminating information about their work; and,

3)encouraging more effective cooperation and collaboration among organizations.

IHRIP facilitates and supports international training and exchange opportunities for staff of human rights organizations and individuals committed to human rights protection and promotion. From 1990-1996, IHRIP assisted more than 180 human rights activists from around the world in undertaking professional development projects with experienced human rights organizations in other countries.

In addition to Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights, IHRIP, in cooperation with the Swedish NGO Foundation for Human Rights, produced the Status of Human Rights Organizations in Sub-Saharan Africa. The latter publication was based on interviews with 200 African human rights NGOs in 26 countries of the region and is available in English and French.

Organizations and activists interested in learning more about IHRIP, the professional development projects it supports, or in obtaining copies of its publications, can contact IHRIP directly at:

International Human Rights Internship Program

Institute of International Education

1400 K Street, N.W., Suite 650

Washington, D.C. 20005

U.S.A.

tel: (202) 326 7725

fax: (202) 326 7763

E-mail: ihrip@iie.org

IHRIP is administered by the Institute of International Education, the oldest and largest educational exchange organization in the United States. IIE has its headquarters in New York City.

Ripple in Still Water

Reflections by Activists on

Local- and National-Level Work on

Economic, Social and Cultural Rights

International Human Rights Internship Program

Second Edition © Copyright 1997

Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic,

Social and Cultural Rights is also available in Arabic, French and Spanish through the

International Human Rights Internship Program.

Cover illustration by Heather Zehren.

“Ripple in still water” is from the song “Ripple”, words by Robert Hunter, music by

Jerry Garcia, used by permission of Ice Nine Publishing Company.

ACKNOWLEDGMENTS

Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights was written by Dana Buhl, Director of Special Projects, and edited by Ann Blyberg, Executive Director, of the International Human Rights Internship Program (IHRIP), of the Institute of International Education. It is based on extensive research on economic, social and cultural (ESC) rights and on the work of local-, national- and international-level organizations on these rights. Much of the material in this publication draws directly on interviews with local, national and international organizations, written materials provided by these organizations about their work, and discussions held at the International Workshop on National-Level Activism in Economic, Social and Cultural Rights organized by IHRIP and hosted by the Asian Forum for Human Rights and Development (Forum-Asia) in July 1996 in Chiangmai, Thailand. In addition, there are many organizations and individuals who did not participate in the workshop, but provided information and insight about their work that was invaluable to the development of this resource.

The research for, writing and distribution of Ripple in Still Water and the sponsorship of the International Workshop was made possible by a grant from the Ford Foundation. IHRIP also deeply appreciates the months of hard work and excellent logistical arrangements made by Forum-Asia in hosting the International Workshop in Thailand.

IHRIP is particularly grateful for the very fine cooperation and collaboration of the participants in the International Workshop. This publication could not have been produced without their willingness to share their unique experiences and insights, and invest valuable time and energy. In addition, we greatly appreciate the generosity of the many individuals and organizations who did not participate in the workshop, but contributed their thinking and perspective with us. At the same time, while the views expressed in the document reflect this broad range of experience, they do not necessarily represent the perspective of any individual workshop participant, the Institute of International Education or the Ford Foundation.

Appendix I is a list of the workshop participants and contact information for them. Questions and comments about particular aspects of ESC rights activism or about this publication may be addressed directly to a participant or to:

Ms. Dana Buhl

Director, Special Projects

International Human Rights Internship Program

Institute of International Education

1400 K Street, N.W., Suite 650

Washington, D.C. 20005

U.S.A.

tel:(1 202) 326 7725

fax:(1 202) 326 7763

E-mail:ihrip@iie.org

The Great Tablecloth

Let us sit down soon to eat

with all those who haven’t eaten,

let us spread great tablecloths,

put salt in the lakes of the world,

set up planetary bakeries,

tables with strawberries in snow,

And a plate like the moon itself

from which we will all eat.

For now I ask no more

than the justice of eating.

Excerpt from the poem by Pablo Neruda

Translation © Alastair Reid

Table of Contents

Introduction1

The International Workshop on National-Level Activism in ESC Rights3

Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on

Economic, Social and Cultural Rights5

Structure of the Resource5

Section I: Developing a Framework for Economic, Social and Cultural Rights Activism

Chapter 1: General Principles for ESC Rights Activism9

The Emergence of a Rights Approach9

What Has Motivated Some Groups to Use a Rights Approach?9

The Rights Framework and Approach11

Guiding Principles of a Rights Approach to ESC Rights Activism11

Human Rights are Interdependent and Indivisible11

ESC Rights Apply to All Individuals on the Basis of Equality and Non-Discrimination11

ESC Rights Denote Certain Governmental Obligations12

ESC Rights Are Justiciable12

ESC Rights Can and Should Be Claimed13

Guidelines for ESC Activism14

Participation14

Impartiality14

Non-Defensiveness15

Perseverance and Tenacity15

Collaboration and Cooperation16

Chapter 2: Content of International Standards19

Clarifying Human Rights Concepts19

Core Content19

Minimum Core Content20

State Obligation21

Indicators21

Elaborating the Contents of Rights23

Focused Study and Discussion23

A Case Approach25

“Violations Approach”26

Other Human Rights Standards and Principles that May Be Used27

Non-Discrimination27

Participation and Freedom of Information28

Progressive Realization30

Section II: Strategies and Tools for ESC Rights Activism

Chapter 3: Organizational Issues, Goals and Strategies35

Example: FLAG and its Economic, Social and Cultural Rights Program36

Example: Developing Initiatives for Social and Human Action38

Chapter 4: Monitoring41

What Is Human Rights Monitoring?41

Focus and Purpose of Monitoring41

Principles Related to Human Rights Monitoring42

Impartiality and Accuracy43

Application of Human Rights Standards43

Utilizing Diverse Sources of Information43

Data Collection from and with Victims and Affected Communities44

Data Collection from NGOs and Community-Based Organizations45

Using Government Reports and Information45

Problems and Challenges46

Chapter 5: Education and Mobilization49

Human Rights Education49

Mobilization50

Considerations of Different Targets for Human Rights Education and Mobilization50

Working with Communities and Constituencies50

HRE with Community-Based Organizations and Other NGOs51

Work with Government Agencies and Officials53

Chapter 6: Policy Work, Legislative Advocacy and Litigation55

Are ESC Rights for Courts or Policy-Makers to Enforce?55

Policy Work57

Legislative Advocacy58

Litigation59

Challenges Related to Policy Work, Legislative Advocacy and Litigation60

Chapter 7: Work with Intergovernmental Bodies63

Should an Organization Use Intergovernmental Mechanisms?63

Some Uses of Intergovernmental Mechanisms for National- and Local-Level NGOs64

Using Recommendations and General Comments Issued by Intergovernmental Bodies64

The Use of Complaints Procedures65

Development of NGO Alternative Reports66

Work on Multilateral Development Banks69

APPENDICES

Appendix A: Bibliography75

Appendix B: A List of Relevant United Nations Documents

and Partial Collation of ESC Rights Standards79

Relevant United Nations Documents79

Partial Compilation of Standards81

Right to Education81

Right to Food82

Right to Health82

Right to Housing84

Appendix C:Examples of Matrices Designed by the Caribbean Initiative on

the Development of National Laws and Policies87

Appendix D:Budget Analysis: DISHA’s Experience91

Summary91

Experience in Brief92

Who Should Do Budget Analysis and Policy Priorities?95

Interpretation and Use of Data96

Use of Findings97

How to Share Findings98

Comparative Budget Analysis100

Appendix E: Provea and the Case of El Hornito101

Appendix F:Excerpt from a Submission to the African Commission

for Human and Peoples’ Rights107

Communication107

Background109

Violation of the Right to Health and the Right to a Healthy Environment111

Summary of Violation111

Facts111

Legal Foundation112

Legal Conclusions113

Appendix G:Excerpt from Health as a Right by Provea115

Appendix H:The Chiangmai Statement on Economic, Social and Cultural Rights121

Appendix I:Workshop Participant List123

Introductiontc \l1 "Introduction

While the International Bill of Human Rights embraces a holistic description of human rights, a corresponding holistic recognition and respect for all rights has been lacking. Around the world, and for too long, attention to “human rights” has been limited largely to those rights detailed in the International Covenant on Civil and Political Rights. Over the years the spotlight has turned on many governments, illuminating grave human rights violations such as torture, “disappearances,” arbitrary detention, and censorship. The attention afforded civil and political rights has helped to define, enforce and popularize human rights. However, this narrow attention has meant that other rights -- primarily those detailed in the International Covenant on Economic, Social and Cultural Rights -- have received inadequate attention. There is commensurately less international under-standing of and agreement on the fundamental obligations of governments to protect and promote economic, social and cultural (ESC) rights.

In countless situations the human rights contained in the two separate Covenants are intertwined. One illustrative case is in the Delta region of Nigeria where for several years the Ogoni people have mounted an organized resistance to the destruction of their land and contamination of their waters by their own government and by multinational oil companies. The companies have sought the support of the Nigerian military to quell resistance by the Ogonis to their practices in the area. Recent government attacks on the Ogoni illustrate the interconnection of economic, social and cultural rights with civil and political rights. While the human rights violations perpetrated by the military’s actions -- rapes, extrajudicial executions, floggings, and so on -- fall under the heading of civil and political rights, the nature of the conflict over land, waters, use of resources and national economic policies stands firmly in the arena of economic, social and cultural rights.

A vast range of local, national and international NGOs worldwide -- humanitarian relief organizations, women's micro-lending institutions, social service groups educating child laborers, community self-help groups, and so on -- work in and with communities to improve the quality of life. They understand intimately the plight of the poor, the dispossessed and the oppressed. They see first-hand the effects of economic and social development policies -- or lack thereof -- on the day-to-day existence of individuals and communities. At the same time, virtually all of these organizations seek to alleviate adverse conditions largely through direct service or social work. While some include in their work formulating and advocating for national policies to improve the situation of the poor, they generally do not adopt the “rights” paradigm in formulating their issues and arguments. Many are not aware that there is a set of internationally recognized rights directly related to their daily work.

Since the end of the Cold War, increasing attention has been paid at the international level to ESC rights. A few international organizations and institutions -- both intergovernmental and non-governmental -- are working toward a more detailed understanding of the various rights incorporated in international instruments, and of how best to enforce governmental obligations to protect these rights. These efforts are essential to creating global respect for and enforcement of economic and social rights.

However, it is also generally true that international human rights endeavors are more effective when they are developed in collaboration with and are based upon the experience and priorities of local- and national-level organizations. Due to their familiarity with the political, economic, social and cultural contexts within their own countries, local and national organizations are well-situated to undertake certain tasks critical to the realization of economic, social, cultural, and indeed, all rights. In particular, they are ideally placed to:

· identify the economic, social and cultural issues of greatest immediate concern to the country or community;

· apply economic and social rights standards in international law and national constitutions to the particular local and national conditions and structures, analysis of which is essential to elucidating the core content of the rights and the corresponding obligations of governments;

· monitor closely the state's development of the conditions necessary to ensure economic and social rights and, in particular, its implementation of related policies, plans and legislation;

· monitor and report on the government's actions in compliance with or in violation of its obligations;

· ascertain the jurisprudence, availability of legal remedies, and enforceability under national laws of economic and social rights;

· respond to individual or community complaints of violations;

· educate the population on their ESC rights; and,

· mobilize and collaborate with communities and other organizations to advocate for these rights.

While the effective promotion and protection of human rights depends on local and national organizations undertaking these important tasks, there are, in fact, few local or national organizations which address economic and social issues from a rights perspective. Organizations which have experience working on ESC issues with a rights approach -- that is, using international human rights norms and treaties and constitutional rights guarantees to monitor and assess governments’ policies and actions -- are charting new territory. The challenge of working in largely unmapped terrain can be isolating for these pioneering groups and deter new groups from entering the field. All of these organizations will be encouraged to persevere if they are able to share information, experiences and ideas with others who have themselves undertaken some of the difficult process of conceptualizing and implementing work in this area.

As growing numbers of human rights and other NGOs turn or expand their focus to include ESC rights, the need for relevant training resources will also increase. In 1995, in order to enhance its capacity to facilitate training projects and the exchange of experience and expertise among human rights organizations in the area of ESC rights, the International Human Rights Internship Program (IHRIP) initiated a project to enhance its own understanding of local- and national-level ESC rights activism. The project has been aimed in particular at learning more about the fundamental components of ESC rights work and identifying existing training capacity so that IHRIP can better respond to requests for training in this arena.

IHRIP’s first task was to identify local- and national-level organizations and activists focusing on ESC rights to learn about the nature and extent of their work. In particular, IHRIP sought out organizations and activists who have systematically used a rights approach and have gained valuable insights about ESC rights advocacy. IHRIP did not attempt to be exhaustive in its identification of ESC rights activism; rather it sought to learn about the use of different advocacy tools, such as monitoring, litigation or policy formulation, and experience with different ESC rights, for example, the right to housing, health and education. IHRIP wanted to learn about the processes which organizations have followed in defining their ESC rights work: the goals they have identified; the strategies and tools they have used to pursue their goals; key insights and questions that have emerged; as well as major challenges and obstacles they confront and how they have addressed these challenges.

The International Workshop on National-Level Activism in Economic, Social and Cultural Rightstc \l3 "The International Workshop on National-Level Activism in Economic, Social and Cultural Rights

As part of its project, IHRIP held a workshop July 22-24, 1996 in Thailand to which it invited a diverse group of activists from different regions who are working primarily with local and national-level organizations that are currently active on ESC rights using a rights approach. Also participating were a few individuals who are not working precisely in this way, but who have significant relevant experience with one or more aspects of local or national-level work, as well as a few individuals from international-level NGOs.

The objectives of the three-day workshop were:

1)To facilitate the exchange of information, resources and expertise among the participants;

2)To identify aspects of participants’ experience and thinking processes -- key challenges organizations have faced in their work, useful insights they have gained, questions that remain outstanding -- which would be helpful to other organizations; and,

3)To identify training capacity in this field and design a framework for encouraging further development of training resources.

The first two days of the workshop were devoted to an overall discussion of the issues, goals and strategies groups have chosen for their work, followed by more detailed consideration of specific strategies and tools: monitoring and data collection, including budget analysis; education and mobilization; policy work and legislative advocacy; litigation; work with intergovernmental bodies; and work with multilateral development banks. One or two participants with significant experience and understanding of the particular topic began each session with a presentation. IHRIP asked presenters to address the following questions:

· What approaches, information or resources have you found particularly helpful?

· What particular problems or challenges have you faced that other groups are likely to encounter, and how are you addressing them?

· What particular insights have you gained or lessons have you learned from this process?

· What would you want to be sure that newcomers to the field are aware of?

On the third day of the workshop the group reviewed the main points which had been brought out and identified those which were important to flag for newcomers to the field. The discussions also focused on those points which needed greater clarification, about which there had been dispute, or which remained unresolved.

The group also briefly considered potential training resources. However, despite their experience, participants felt that it was premature to develop any concrete training programs. They concurred on the need for more time to implement their strategies and evaluate what they have learned before integrating their experiences into formal training programs. IHRIP’s workshop goal of creating a framework to encourage and facilitate further development of training resources was thus put on hold.

Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rightstc \l3 "Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights

This resource, Ripple in Still Water, is a digest of information and experiences that seem particularly relevant and useful to local- and national-level ESC rights activism. Workshop participants stressed that materials coming out of the workshop should not be considered as a “blueprint” or handbook for how to go about ESC rights activism. Rather, they should:

inform interested activists about some useful experiences in the use of a human rights approach to ESC issues;

share

the thinking processes and organizational strategies groups have applied to their work in this area; and,

encourageothers active or interested in ESC rights work by illustrating some of the many tools and strategies which can be employed.

The digest integrates experiences of organizations as described in the workshop preparatory packet, key insights and questions shared at the workshop, and reflections by IHRIP staff based on the program’s contact with human rights organizations and its experience in facilitating training/ exchange projects.

Ripple in Still Water concentrates on various advocacy strategies and tools for ESC rights activism, limiting its theoretical or historical analyses to those issues which workshop participants mentioned as having a direct bearing on their present-day work. There is ample literature available which focuses on the history of the split between economic, social and cultural rights on the one hand and civil and political rights on the other; theoretical legal analyses of the justiciability of ESC rights; interpretations of various ESC rights, such as housing, by international human rights bodies, and so on. (See bibliography, Appendix A, for some suggested readings.) However, few materials are written which describe what ESC rights activism looks like at the local and national levels, the reasons organizations choose to tackle their work in a given way, what programs organizations have developed to implement their ESC rights work, and what pitfalls newcomers to the field may encounter. These latter concerns are often of more immediate relevance to activist organizations.

Structure of the Resource

Section I: Developing a Framework for Economic, Social and Cultural Rights Activism initiates the exploration of national-level ESC rights activism, presenting reflections about a human rights framework and human rights approach and discussing in general terms the international human rights standards which relate to ESC rights. It includes:

Chapter 1General Principles for ESC Rights Activism

Chapter 2 Content of International Standards

Section II: Strategies and Tools for ESC Rights Activism stresses the need for a clear identification of issues and establishment of goals for work, and provides information about the thinking processes organizations have employed to identify and implement various strategies for ESC rights activism and what they have learned through doing so. The resource has attempted to focus on specific strategies and tools for activism, recognizing that, in practice, organizations typically use a combination of various advocacy strategies and tools in implementing specific programs. This section is organized as follows:

Chapter 3 Organizational Issues, Goals and Strategies

Chapter 4Monitoring and Data Collection

Chapter 5Education and Mobilization

Chapter 6Policy Work, Legislative Advocacy and Litigation

Chapter 7Work with Intergovernmental Bodies

The Appendices are a collection of resources which were offered by workshop participants or otherwise collated by IHRIP. They include:

Appendix ABibliography

Appendix BA List of Relevant UN Documents and Partial Collation of ESC Rights Standards

Appendix CMatrices Designed by the Caribbean Initiative on Equality and Non-Discrimination for the Development of National Laws and Policies

Appendix D“Budget Analysis: DISHA’s Experience”

Appendix EProvea and the Case of El Hornito

Appendix FExcerpt from a Submission to the African Commission for Human and Peoples’ Rights

Appendix GExcerpt from Health as a Right by Provea

Appendix H“The Chiangmai Statement on Economic, Social and Cultural Rights”

Appendix IWorkshop Participant List

It is our hope that Ripple in Still Water will be useful to national- and local-level human rights organizations foremost, and to other NGOs interested in undertaking ESC rights activism. IHRIP welcomes your comments, ideas and questions.

SECTION Itc \l1 "SECTION I

Developing a Framework for Economic, Social and Cultural Rights Activism

Chapter 1

General Principles for ESC Rights Activismtc \l2 "Chapter 1General Principles for ESC Rights Activism

The Emergence of a Rights Approach

Why is economic, social and cultural rights activism a relatively undeveloped phenomenon? Why are so many organizations only now turning their attention to the possibility of utilizing a rights approach to addressing long-standing problems of poverty, starvation and malnutrition, homeless-ness, forced evictions, and other ills?

Generally, two broad factors have contributed to the growing interest and capacities of NGOs and activists to address economic and social issues using a rights approach. One is the maturation of the human rights movement. Many local, national, regional and international human rights organizations have emerged around the world. Through years of focused activism, these organizations have gained invaluable experience in analyzing and understanding international standards and mechanisms (primarily in the civil and political rights field) and utilizing a range of advocacy tools in their advancement of a human rights approach to societal issues.

The second important ingredient was the convergence of widespread poverty and increasing inequality with the end of the Cold War. Following the end of dictatorships in a number of Latin American countries, the freeing of most political prisoners in Eastern Europe, and the end of apartheid in South Africa, deteriorating economic and social problems began to claim the attention of activists in these regions and globally. Roots of the present deterioration in economic and social conditions can be found in the late 1970's, when Third World countries faced growing foreign debt. Structural adjustment policies (SAPs) and conditions to promote the development of “free market economies”, imposed by international financial institutions and lending countries, gained ground with the end of the Cold War and the disappearance of the East-West ideological debate.

Along with the easing of the latter tensions, many human rights organizations felt freer to explore ESC rights concerns arising out of endemic poverty and inequality exacerbated by the mentioned policies. Many activists had accumulated experience and tools that better enabled them to begin to address economic and social problems as rights issues.

What Has Motivated Some Groups to Use a Rights Approach?

· Venezuela is an oil-rich country. For many years, due to increased national wealth created by oil revenue, the government expanded social programs, and provided better infrastructure and services than the citizens had previously enjoyed. The population generally viewed these services and programs as “gifts,” generous offerings from the government as a result of the bounty from oil. When oil prices dropped, oil revenues diminished and foreign debt increased. In reaction to this crisis, the government cut many programs and services. Venezuelans did not clamor to maintain them because they had considered them gifts. Human rights activists have begun to elaborate a framework for understanding these problems and services from a rights perspective, and to popularize the idea that the government has certain ESC rights obligations, which include the development of policies and implementation of programs in the social, economic and cultural spheres, which cannot be derogated from despite the changed economic conditions.

· Nigeria is also an oil-rich country, but the population of approximately 100 million reaps little benefit from oil revenue which is siphoned away to enrich a few. The country is governed by a military dictatorship characterized by outrageous corruption and severe political and civil repression. Over the past several years, the majority of human rights and legal aid organizations have focused on addressing the abundant violations of civil and political rights: arbitrary detention, torture, censoring of the press, and so on. At the same time, poverty throughout the country is intensifying. Schools and universities are often closed because professors are on strike to demand better facilities. Large-scale, forced evictions of squatter communities occur regularly in Lagos, Nigeria’s largest city. Many rivers and arable lands have become gravely polluted from the process of oil extraction. Some human rights and community activists are beginning to examine and expose these problems through the lens of human rights and to expose the role and responsibility of the government in these situations.

· The Caribbean Initiative on Equality and Non-Discrimination (the Initiative) had its origins in Guyana in 1992. As a result of a democratic transition, sufficient political space emerged to allow human rights activists to address a broader range of issues than had been the case under previous dictatorial conditions. Activists felt that maintenance of the human rights movement’s credibility in the region required an effective response to poverty and adverse life conditions faced by communities throughout the Caribbean. The Initiative has begun to use international human rights standards in work with development organizations and government agencies to help define and shape economic and social policies.

· The Galilee Society, the Arab National Society for Health Research and Services was founded in 1981 by a group of local Arab health professionals to address numerous health and sanitation problems of Arabs in the Galilee; its activities and membership have since expanded to cover the Arab population within Israel. The Society initially sought to complement the work of agencies emphasizing curative health services in urban areas, often overlooking problems faced by rural Arab communities, and to publicize health problems of Arabs to Israeli authorities. The Society became increasingly aware of the discriminatory impact of governmental health and sanitation policies and felt compelled to protest them. Through collaboration with activists experienced with international human rights law, the organization began to integrate human rights standards into its work, and developed an advocacy position within the health field, working for equal rights of the Arab population. The Society now focuses on advocacy and community empowerment. It provides emergency health services only in urgent cases, avoiding direct service provision in those areas where the government is legally responsible.

The Rights Framework and Approach

Analyzing societal issues and problems through a rights framework and using a rights approach to tackle them are powerful means of advancing a vision for a just world.

The Rights Approach

The rights approach uses international human rights norms and treaties to hold governments accountable for their obligations. The rights approach can be integrated into any number of advocacy strategies and tools, including monitoring, community education and mobilization, litigation, legislative advocacy and policy formulation.

Guiding Principles of a Rights Approach to ESC Rights Activism

The Rights Framework

Individuals are the holders of economic, social, political, civil and cultural rights. Governments have corresponding obligations to respect, promote, protect and fulfill these rights. The legal and normative standards for the character of the rights and associated governmental obligations are based on international covenants, treaties, conventions, declarations and recom-mendations and in national constitutional provisions for human rights.

· Human Rights are Interdependent and Indivisibletc \l3 "Human Rights are Interdependent and Indivisible

It is important that ESC rights activists consistently affirm that all human rights are interdependent and indivisible. It is critical that all human rights be recognized as essential to human survival and dignity. Advocacy for economic, social and cultural rights should not fall into its own trap of perpetuating the dichotomy that was exacerbated by Cold War tensions. Focusing on economic, social and cultural rights does not mean that these rights are more important than, or independent from, civil and political rights. They warrant specific focus because they have been ignored for so long, and so little work has been done to elaborate and popularize these rights as human rights.

· ESC Rights Apply to All Individuals on the Basis of Equality and Non-Discriminationtc \l3 "ESC Rights Apply to All Individuals on the Basis of Equality and Non-Discrimination

All human rights work is grounded on the principle that each and every human right belongs to each individual on the basis of equality and non-discrimination. Although we may not yet be able to evaluate the full extent to which people can exercise certain ESC rights or the precise level of government compliance with its obligations, we can nonetheless identify areas where groups have unequal access to specific government-provided economic and social resources or services. In cases where that unequal access is the result of discriminatory policies and practices, an ESC activist may be able to base a rights claim on the principle of equality and non-discrimination. (This is discussed further in Chapter 2: Content of International Standards.)

· ESC Rights Denote Certain Governmental Obligationstc \l3 "ESC Rights Denote Certain Governmental Obligations

As indicated in the description of the Rights Framework, individuals are the holders of human rights and governments have related obligations to respect, promote, protect and fulfill human rights. The legal and normative standards for the character of the rights and the associated governmental obligations are based in international covenants, treaties, conventions, declarations and recommendations and in related constitutional provisions. By ratifying international human rights treaties, states agree to be accountable to one another, as well as to their citizens, for the fulfillment of their obligations. A central principle in using a human rights approach to advocacy is the consistent assertion that states are accountable for their obligations under international law and within national constitutional frameworks.

There are many non-state actors that affect human rights. These actors and issues must be addressed if human rights are ever going to be universally respected, though the extent to which international law does and should apply to non-state actors is an unsettled question which needs to be more clearly defined. Even while questions such as these are explored, however, there is a great deal to be done to determine the content of specific rights and hold governments accountable for their obligations.

· ESC Rights Are Justiciabletc \l3 "ESC Rights Are Justiciable

Closely linked to the process of claiming a right is the issue of justiciability. Something which is justiciable is “capable of being decided by legal principles or by a court of justice.” The question of whether ESC rights are justiciable is one of the least clearly understood and most hotly debated issues in the literature on ESC rights. Most courts around the world are reluctant to make rulings on ESC rights. They generally defer to the policy makers and politicians, hesitant to “step on the toes” of those they believe to be the rightful decision-makers on these matters. They refuse to explore the legal terrain of ESC rights in which there are few precedents.

This reluctance or refusal is often cited as evidence that ESC rights are not justiciable; that is, if courts will not take a case, it must mean that the issues raised are not suitable for a legal ruling. However, workshop participants concurred in the view that the failure of courts to rule on ESC rights does not mean that the rights are not justiciable. ESC rights are justiciable; that is, they are capable of being decided by courts or other quasi-judicial fora using internationally-recognized legal principles and agreements. The courts of countries which have ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) could, for example, use Article 2 of the Covenant which mandates progressive implementation of measures -- including legislative measures -- to rule that the repeal of a mandated program which has enabled the population to reach a certain level of health or education is not permissible under the country’s international agreements. The question of justiciability is one of political will and legal creativity. It was agreed by workshop participants that activists should bear this in mind at all times and consistently affirm that ESC rights are justiciable.

Ripple in Still Water does not attempt to review or critique the many arguments related to the justiciability of ESC rights. However Chapters 6 and 7 explore the issue of justiciability a bit further.

· ESC Rights Can and Should Be Claimedtc \l3 "ESC Rights Can and Should Be Claimed

Through ratification of international treaties and by virtue of customary international law, states have responsibilities to uphold and fulfill human rights. When individuals cannot exercise what they understand and believe is their right, activists and organizations can encourage and help them to claim the right through judicial and administrative channels, or by other means -- demonstrations, civil disobedience, etc. -- where an established mechanism does not exist.

The Centre for Equality Rights in Accommodation (CERA) in Canada has come to understand,

the ability to claim the right is central to the concept and reality of economic and social rights....The Canadian understanding of human rights is that rights are things that can be claimed through some sort of judicial or quasi-judicial process. It is, therefore, that process that the anti-poverty groups focus on.

Guiding Principles of a Rights Approach to ESC Rights Activism

· Human rights are interdependent and indivisible

· ESC rights:

·

apply to all individuals on the basis of equality and non-discrimination

·

denote certain governmental obligations

·

are justiciable

·

can and should be claimed

The process of staking a claim not only asserts an individual’s ownership of his or her entitlement, it also helps to define the content of the right and raise awareness that what has been claimed is a right and not a privilege. The process of claiming a right can alert the government to its responsibilities and put pressure on the authorities to meet their obligations.

Guidelines for ESC Activism

ESC rights activism should be characterized by qualities common to all good human rights activism and should be understood within and informed by the historical development of the human rights movement. In particular, activism should be:

- participatory

- impartial

- non-defensive

- perseverant and tenacious

- cooperative and collaborative.

Participation in the conduct of public affairs is a human right. It has also been recognized by various intergovernmental organizations, including the United Nations Development Program (UNDP), the World Health Organization (WHO), and the World Bank, as a critical component of the successful design, implementation and evaluation of social and economic programs. In its Human Development Report 1991, UNDP writes:

An essential part of any political process to benefit the poor is a high degree of participation. Encouraging the autonomy of citizens is, indeed, an end in itself. And participation is a means to ensure the efficient provision and more equitable distribution of goods and services. If people are involved in decision-making, policies and projects tend to be more realistic, more pragmatic and more sustainable.

Such policy statements acknowledge that participation is essential to the effectiveness of programs geared towards the development of societies. Likewise, ESC rights activism will be effective to the extent that it involves communities and affected groups in identifying problems to address, setting goals, priorities and strategies for doing so as well as implementing, evaluating and modifying these activities. By involving the community in this fashion, activists will serve as a more effective “microphone” for the community in amplifying the needs, experience and vision expressed by or elicited from it.

Impartiality is a central principle to all human rights work. Human rights activists with long experience caution that it is very easy for human rights organizations to be drawn into taking politically partisan positions. The appropriate role for a human rights activist is one of assessing policies and practices of governments and political parties of all persuasions on an impartial basis. This is as true for economic, social and cultural rights work as it is for work on civil and political rights. Critical analyses of economic and social policies and programs using a human rights approach should avoid identifying specific policies as “pro” or “anti” human rights in the absence of well-documented evidence of the impact of a policy on the ESC rights of individuals.

For example, recent international political consensus links the introduction of multi-party political systems, respect for human rights, and free-market economies under the general heading of “good governance,” thereby implicitly linking respect for human rights with a free-market economy. Conversely, some critics of structural adjustment programs maintain that such policies violate human rights. The linkage -- whether positive or negative -- of human rights to a single economic doctrine or policy will impede the ability of human rights groups to impartially monitor and assess the concrete impact of these policies on human beings. In other words, human rights groups should not align themselves for or against specific economic and social policies, but rather should take as their starting point the human impact of any and all policies.

An attitude of non-defensiveness is important in undertaking ESC rights activism. Addressing ESC rights means challenging structures and interests which govern resource allocation and perpetuate poverty. When demands are made for redistribution of resources, many interests are threatened. It is important that activists be aware of the implications of using a rights approach, particularly in the current global political economy. Efforts to utilize a rights framework to analyze and advocate for changes in government policies or to regulate business practices may be attacked as “anti-free market” or promoting “big government.”

One of the greatest obstacles activists face is the commonly held misconception -- often promulgated for ideological reasons and in furtherance of economic interests -- that economic, social and cultural rights fall into the realm of needs, preferences or desires. Critics point to the broad, relatively vague language related to ESC rights in the International Bill of Human Rights, and argue that they could not be guaranteed rights because it is not possible to know what they mean. These rights are not understood as guarantees of certain qualities of life and access to resources to which all people are entitled.

Activists should stress the similarities of ESC rights work to civil and political rights work as well as learn the history of the International Bill of Human Rights and the elaboration of civil and political rights norms, so that they feel comfortable in explaining why ESC guarantees embody rights. When the Universal Declaration of Human Rights was adopted in 1948, the international community was not clear about what constituted torture, or what differentiated torture from cruel, inhuman and degrading treatment or punishment. However, because of the greater attention afforded civil and political rights over the years, the specific content and meaning of the right to be free from torture (as well as other civil and political rights) have been clarified through extensive case studies, debates, research and analysis. Acknowledgment that progress in developing similarly elaborated understandings in economic, social and cultural rights will likewise take a long time may help activists to be perseverant and tenacious in this challenging work. (See box next page.)

Example: FLAG’s Perseverance and Tenacity

Under its Economic, Social and Cultural Rights Program, the Free Legal Assistance Group (FLAG) established four rights-specific task forces on what it calls “the rights of survival”, those rights which are inextricably linked to the right to personal security: the rights to housing, health, education, and food. Each task force was directed to 1) identify the issues and problems within the Philippine context which had to be addressed and reconciled in relation to the right in question, 2) define the right and the absolute minimum entitlements which spring from it, 3) identify the state obligations for the right, and 4) develop indicators for measuring the state’s performance. FLAG planned for each task force to complete its work within one year. In practice, however, the process has been much slower. As of July 1996, the Task Force on the Right to Housing, for instance, had already been working for over a year and had achieved only a portion of what it intended. During that year, it identified eleven issues/problems that must be resolved to arrive at a definition of the right to housing and of these eleven, it had agreed on the content of just two issues: legal security of tenure and availability of basic service resettlement sites.

Reflections on the Housing Task Force’s development led FLAG to alter the time lines for work in order to preserve some of the processes which have contributed to its success. For example, FLAG had invited a diverse range of people to sit on the task force and tensions inherent to such diversity quickly surfaced. FLAG is committed to working with all groups regardless of political persuasion. It believes that the different perspectives should be discussed openly, and that “codes of conduct” should be developed by the group to allow for such discussion, despite the amount of time it takes to do so. FLAG also learned that most task force members did not have a human rights perspective on housing issues. It took time to inform them about the rights framework and to come to some common understanding of what is meant by a “right.” Though time-consuming, the educational process is consistent with FLAG’s overall philosophy and approach to structural change.

Collaboration between National and International Organizations

Oil development in the Ecuadorian Amazon over the last three years has caused massive environmental, social, and cultural harms, much of it related to the dumping and spilling of toxic materials into community water sources. Local indigenous, environmental and settler groups have organized to press for enforcement of environmental safeguards, remediation of past damages, and more participatory and sustainable development practices. The groups have sought support from NGOs and experts from outside of Ecuador to enhance their scientific and legal position and to increase the pressure on the oil industry, the development banks, and government agencies. One such NGO, the New York-based Center for Economic and Social Rights (CESR) works with local and international advocates and scientists to facilitate North-South and inter-disciplinary coalitions to address a broad range of issues involved in promoting ESC rights. In 1993, CESR organized a fact-finding mission of doctors and environmental scientists to measure the levels of contamination and health impacts related to oil development in certain Amazon communities. Based on the results of the scientific study, CESR worked closely with the Ecuadorian groups to prepare and release a report on violations of the right to health and the right to a healthy environment. The report was used in an international campaign to pressure the government and multinational oil companies to reform existing practices and to create a more transparent and participatory framework for further development and protection of the Amazon. Following the report, CESR has helped local groups do outreach and education among Amazon communities regarding their rights in respect to industrial development. The efforts of these local groups has led to the establishment of a network of community advocates to oversee and report on industrial activities and human rights violations, in coordination with international NGOs like CESR.

Important to all human rights work is effective collaboration and cooperation. When the common goal is well-defined, working in coalitions on specific campaigns, projects or long-term programs strengthens the impact of an organization’s work, expands its pool of resources and avenues of influence, and broadens its perspective. Cooperation and collaboration are particularly important to ESC rights activism because a range of knowledge and expertise is needed to help groups elaborate on the core concepts of most of the rights. Development and other organizations have often worked more closely with affected groups and victims of economic, social and cultural rights abuses than have human rights groups and thus have very valuable information and access. Drawing on the expertise of individuals and other groups not associated with an organization can also deepen the latter’s understanding of the issues and problems involved. For example, a human rights group initiating work in an area such as health care or economic development can enhance its skills and capacity by involving health professionals and others working in the field; they can, in the process, share human rights concepts with these individuals and groups. Collaboration can take place within local, national and international spheres. Local and national human rights groups may also find that developing contacts with international-level human rights organizations is very helpful. Such contacts can broaden the resources available to the groups, bring in valuable experience from other countries and assist in the process of mobilizing international pressure.

Chapter 2

Content of International Standardstc \l2 "Chapter 2Content of International Standards

As a result of the relative inattention paid to ESC rights over the past several decades, activists will find themselves more involved in the process of defining the content of the rights than they generally are in civil and political rights cases or situations. While representing a client or investigating a case, for instance, activists and organizations may often have to undertake research to arrive at a fuller elaboration and deeper understanding of specific standards in order to argue the application of the standards to the specific case. The arguments, in turn, may serve as the basis for a court to make a decision that lends greater precision to the parameters and dimensions of the specific right. This can be a difficult, complex and drawn-out process, but is essential for the development of more precise understandings of the content of ESC rights at the national and international levels.

The building block essential for understanding and defining the content of the rights is study of international standards and documents, national constitutions, as well as interpretations and analyses of these documents. While organizations just entering the field will likely have to devote considerable time to tracking down such documents -- to date, there is not a centralized place where such information has been collected -- this is a necessary component of ESC rights work.

Clarifying Human Rights Conceptstc \l3 "Clarifying Human Rights Concepts

In learning about international ESC rights standards, there are some concepts with which activists should be familiar, specifically: core content and minimum core content, state obligation and human rights indicators. These are terms which are widely used, even though there does not yet seem to be a standard use of them. A particularly challenging aspect of ESC activism is developing and maintaining clarity about these terms and communicating this clear understanding to other NGOs, governments, and intergovernmental agencies and bodies. Activists should bear in mind that the concepts are evolving.

Core Contenttc \l4 "Core Content

The core content of a human right refers to the entitlements which make up the right. The core content of an ESC right has both “universal” and “unique” characteristics. The universal characteristics are those which apply to all rights. Non-discrimination is one such “universal” characteristic: no individual may be denied the exercise of any of his or her human rights on the basis of his/her race color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In addition to “universal” characteristics, certain character-istics of the core content of each ESC right are unique to the specific right. For example, access “to immunization against preventable epidemic or endemic diseases” is a key component of the core content of the right to health, but is not applicable to other rights.

Minimum Core Contenttc \l4 "Minimum Core Content

A related concept is that of minimum core content. This has been described as the non-negotiable foundation of a right to which all individuals, in all contexts, and under all circumstances are entitled. The minimum core content implies a “floor” below which no government can go regardless of the economic situation in a country (see “state obligation,” below). For example, if you are discussing the right to housing, one element of the core content would be legal security of tenure. Housing rights advocates maintain that the minimum core content would provide that no one can be legally evicted from his or her home without due process of law and adequate compensation. This should be guaranteed to all citizens regardless of the existence of, for example, an economic downturn or crisis in a country.

It is helpful to remember that the concepts of core content and minimum core content are not unique to ESC rights. An example of minimum core content in the area of civil and political rights can be found in the right to freedom from arbitrary detention. One element of the core content of this right is that a warrant for a person’s arrest must be obtained by the state and presented to the individual. Another element of the core content is that an individual who is detained cannot be held for an indefinite period of time. In the case of a declared national emergency in which constitutional guarantees are suspended, an individual may be detained without an arrest warrant. However, even in this situation, s/he cannot be held indefinitely. Since the requirement of an arrest warrant can be suspended, this element would not be considered part of the minimum core content of the right to freedom from arbitrary detention. Since, however, s/he cannot be detained indefinitely, even under a state of emergency, that guarantee would be an element of the minimum core content.

The idea of a minimum core content has been challenged out of concern that using the word “minimum” limits the full guarantee of rights by setting a low standard for governments to meet. However, in Health as a Right, Provea has written:

We consider that by establishing a minimum, uniform “floor” below which a state may not descend does not weaken the right in question, provided that the content is understood as a starting point and not as the arrival point. Furthermore, establishing a framework assures a uniform basis to be respected, even by the states with insufficient economic resources or subjected to critical economic situations.

The minimum core content, therefore, is not the same as the core content of a right.

State Obligationtc \l4 "State Obligation

In addition to the core and minimum core content of individual entitlements, each human right carries corresponding state obligations. When states ratify international covenants and treaties, they commit themselves to abide by and fulfill the state duties required in the agreement. ESC rights advocates assert that states’ obligations comprise the duties to promote, respect, fulfill and protect each right. In the same way that the core content of ESC rights is not yet fully elaborated, considerable work remains to be done to elucidate the nature and extent of state obligations with regard to each right. (See box, Defining the Content of Rights, p. 23.)

Indicatorstc \l4 "Indicators

There is a lot of discussion and confusion about human rights indicators. It is not a term that is commonly used in legal fields and in civil and political right work, although for those who come to ESC rights work from such fields as public policy, sociology or health research, the term will not be new. Generally speaking, an indicator is a tool which shows the direction of something or which serves as a sign or symptom. There are many indicators which are already used by various intergovernmental agencies, such as the World Health Organization and the United Nations Development Program, to measure the status of economic and social conditions within countries. These indicators, however, are not exhaustive, nor are they necessarily linked to human rights concepts.

For our purposes, therefore, we will specify that a human rights indicator is the particular concept used to monitor and evaluate an aspect of a human right. For example, related to the provisions of article 12.2.a of the ICESCR, one human rights indicator used to measure the enjoyment of the right to health would be the under-five mortality rate. Another indicator related to this article would be the mortality rate due to diseases preventable by vaccination.

It may be helpful to understand that there are two types of human rights indicators which correspond respectively to the core content of a right and the corresponding state obligations. An outcome indicator refers to the status of individual rights. The examples given above (the under-five mortality rate and the rate of mortality due to preventable disease) are both outcome indicators. A process indicator refers to the status of the state’s compliance with its rights obligations. A process indicator related to the same Article 12.2.a would be the implementation by the state on universal immunization of children under one year of age against the main childhood diseases. The related data which is collected -- for example, the actual number of babies who have died in a given time period, or the number of clinics providing immunization -- provides information about the indicator.

It is also important that both quantitative and qualitative indicators be developed to assess the state’s performance. Quantitative indicators are measured by numerical data. Qualitative indicators examine the quality of the enjoyment of a right or the government’s fulfillment of it. For example, qualitative indicators might examine the ways in which the community was involved in the development of a policy or the receptiveness of the court to hearing ESC rights arguments.

Defining the Content of Rights

Concept

Core content of

a right

State obligation

Outcome indicators

Process

indicators

Data

Definition

The specific individual entitle-ments which make up a right

The responsibilities of the state to protect, promote, respect and fulfill the entitlements under the right.

The concepts or tools used to monitor the status of a specific right.

The concepts or tools used to measure the status of the state’s human rights obligations.

The information which fills in the indicator.

Example

Prevention: all individuals and com-munities have the right to immunization against preventable epidemic or endemic diseases.*

The State is to develop health policies in areas of promotion, prevention, treat-ment and rehabilitation.*

Infant mortality due to preventable diseases.*

Level of immunization of children under one year of age against the main childhood diseases.*

Number of babies who have died from preventable diseases; number of clinics providing immunizations.

*Examples elaborated in Provea, Health as a Right, Caracas, 1996.

Elaborating the Contents of Rightstc \l3 "Elaborating the Contents of Rights

Activists and NGOs are developing their understanding and promotion of the content of specific ESC rights in various ways. Focused study and discussion, a case approach, and a “violations approach” are three strategies that workshop participants described for elaborating the core content of ESC rights.

Focused Study and Discussiontc \l4 "Focused Study and Discussion

One approach adopted by some groups is deeper study and discussion. Provea, for example, has undertaken the ambitious and invaluable task of developing conceptual frameworks for specific ESC rights. It decided to concentrate on the development of frameworks because, it believes, it is difficult to identify a human rights issue or human rights violation until the work of defining and analyzing the standards has been done. Provea chose to focus on those rights which are of particular concern within Venezuela and for which less clear standards currently exist. To date it has completed Health as a Right and has also been working, to varying degrees, on frameworks for the rights to food, social security, and land rights.

Provea’s Work to Develop Human Rights Indicators

Provea has found that the focus on indicators has been helpful to its process of clarifying the core content of the right to health and is necessary for the full elaboration of ESC rights. Many health indicators are used by intergovernmental agencies and monitoring bodies, but these are not necessarily linked to human rights concepts. Where indicators already exist, they should be viewed with a critical eye to be sure that they are linked to the content of the rights. Provea also believes that it is important for NGOs to fill in the gaps where indicators do not exist and try to establish as many human rights indicators as are necessary, even if there is not enough available data or information to fill in the indicator.

Developing indicators has been one of Provea’s most difficult tasks. The process of identifying human rights indicators has been dynamic, involving considerable trial and error. Provea has nonetheless generally followed these steps:

1)Examine the “universal” and “unique” characteristics of the right (See explanation in section on core content, above);

2)Determine what data are already available (in government reports, academic research, NGO reports, etc.);

3)Examine the considerations elaborated by Danilo Türk, the U.N. Special Rapporteur on the Realization of Economic, Social and Cultural Rights, in his “Preliminary Report” (E/CN.4/Sub.2/1989/19) and identify the main obstacles to using indicators in defining economic and social rights;

4)Evaluate whether or not the indicators measure the identified characteristics; and

5)Compare the indicators selected to those developed by the CESCR for national reports. These reporting guidelines incorporate a broad range of considerations including the resources available to the country, equity within the country, and so on.

Provea’s work has been multi-pronged. For instance, on the right to health, Provea studied the international human rights instruments which pertain to health and the Venezuelan Constitution, sought information and analyses collated by other agencies and organizations on the core content of the right to health, gathered information about international and national health policies as well as Venezuelan legislation related to health, started a database of organizations working on health issues, and began to develop health rights indicators. Each year it works to elaborate specific rights and publishes its conceptualizations in the organization’s annual report. It has used these frameworks for its general activities, such as lobbying, human rights education, case work, etc.

FLAG has also initiated its work on ESC rights by elaborating the framework for rights. It shares Provea’s view that it is difficult to take on cases as rights cases until the rights are defined and elaborated. Currently, FLAG does take individual cases on economic and social issues related, for example, to demolition of houses or anti-squatting actions, but not as rights cases. FLAG has established task forces on the rights to housing, education, health and food to begin the work of identifying the content and state obligations of these rights and corresponding indicators. After the task forces have completed their work, FLAG plans to concentrate on identifying ways that these rights can be enforced and pursued through legal means.

A Case Approachtc \l4 "A Case Approach

Individual cases can be used to elucidate the content of ESC rights in many ways. The tactics that organizations choose depend to a large extent on their degree of clarity as to the content of the rights, as well as the availability of judicial remedies and the effectiveness of the legal systems within which they operate. It is not easy to define precisely and fully the ways that a case approach can be employed because the content and methods are evolving. However, two general ways of using this approach are described in the following:

To the extent that an organization has elaborated the core content of a specific right, it can take a case and argue that the government has violated a right based on its understanding of the right. The group may manage to convince the court to acknowledge and confirm a given aspect of the core content and/or state obligations of the right. For example, a group working on housing rights may have come to the conclusion that, with regard to evictions, due process of law and adequate compensation are characteristics of the core content of the right to housing. The group, therefore, would take a case to court to seek redress for a community or family which has been arbitrarily evicted and, in so doing, ask the court to confirm that due process and compensation are aspects of the right to housing.

On the other hand, it is likely that a group may not have so fully elaborated its understanding of the core content. The group may, however, believe that another right can be used to ask the court to set boundaries on the conduct of the government with respect to specific ESC issues. A legal brief may cite international provisions related to participation (as discussed, above) and seek a ruling that the government has violated a community’s ESC rights because it did not involve it in the design and implementation of a project having significant impact on economic and social conditions in the community. Although this claim may not help to establish other specific dimensions of the right to land, food, housing or health entitlements, it would help to establish that in the implementation of any project affecting these rights, individuals who will be affected by the project must be involved in the process of establishing the need for a project, designing it and evaluating its implementation.

Monitoring complaints and legal cases can also be a way to identify patterns from which it may be inferred that a government policy exists which violates a right, or conversely, that the absence of a policy violates a right. Legal aid programs, social service and development projects are prime foci for this approach. Through comparison and analysis of the issues and claims members of the community bring to such organizations, practitioners can identify patterns of abuse and understand the relationship of state actors to the problem and issue at hand. For instance, a given legal aid program may note an increase in the incidence of clients seeking redress for evictions from their homes. It may perceive patterns related to how or where clients have been evicted which, in turn, may point to a lack of a government policy or protection of the right to housing. The pursuit and analysis of individual cases therefore can be a means for identifying aspects of the core content of rights which need to be more fully examined and elaborated.

“Violations Approach”tc \l4 "“Violations Approach”

Another approach organizations have used is what some workshop participants referred to as the “violations approach” but, given a narrower use of the term “violation”, would perhaps be better described as an emphasis on collecting information about and monitoring egregious and blatant governmental actions. The appeal of a "violations approach" arises largely from the fact that ESC rights to date are not very well elaborated and thus there is little understanding of what constitutes a violation. If organizations and activists start by focusing on the worst possible situations, it should be easier to get public or legal acknowledgment that the situation involves a "violation". Such an acknowledgment begins to give some broad shape to the right and helps to build international acknowledgment of ESC rights.

A critique to this approach asserts that its focus on blatant actions, such as mass demolitions of homes or forced displacement, de‑emphasizes other less obvious actions or lack of action by a government which may involve serious human rights violations. It may also hinder the development of a more complex understanding of what constitutes an ESC rights violation.

Other Human Rights Standards and Principles that May Be Used to Seek the Realization of ESC Rights

Where the core content of a specific right has not been determined, other human rights standards and provisions may be used to seek the realization of ESC rights. Workshop participants discussed the use of guarantees related to participation and non-discrimination as well as the requirement of progressive realization of ESC rights (Article 2 of the ICESCR) as possible tools.

Non-Discriminationtc \l4 "Non-Discrimination

Article 2.2 of the International Covenant on Economic, Social and Cultural Rights states:

The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In cases where the government has apparently acted in a discriminatory manner, or condoned discriminatory actions, in economic, social and cultural spheres, activists may be able to base an ESC rights claim on the principle of non-discrimination even when the specific entitlements of a right are not clearly established. For example, the Galilee Society took a case to the International Water Tribunal claiming that Israel was deliberately not connecting “unrecognized villages” to the national drinking water network, to which neighboring Jewish communities had access, as part of its Planning and Building Law. The Galilee Society was able to demonstrate that an outbreak of hepatitis in the Arab communities was a result of inadequate water and sanitation, and thus argued that Israel’s denial of water was a violation of the villagers’ right to health. Although the precise nature of a government’s obligations to provide adequate water and sanitation has not been determined, this right to health claim was successful based on its ability to convince the jury that the non-recognition of the Arab villages and denial of water to them was unjustifiable.

The Caribbean Initiative on Equality and Non-Discrimination, uses international standards which have been developed for “vulnerable sectors”-- groups which experience wide-scale discrimination, such as children, women and indigenous populations. The international standards pertaining to these populations include provisions for equality and non-discrimination and were developed primarily because it was recognized that wide-scale, and historical discrimination against these groups merit particular protection.

Participation and Freedom of Informationtc \l4 "Participation and Freedom of Information

Communities can and should be involved with the formulation and implementation of policies, programs, budgets, legislation and other activities relating to their rights, because there is a greater likelihood that these will be more effective in meeting the community’s needs if designed and implemented with its involvement. First and foremost, however, communities should be involved because participation is a human right. Article 25.a of the International Covenant on Civil and Political Rights (ICCPR) states:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [related to non-discrimination] and without unreasonable restrictions:

(a)To take part in the conduct of public affairs, directly or through freely chosen representatives...

While the right to participation is included in the ICCPR, it is clearly connected to all human rights, and is specifically applicable to ESC rights. Paragraph 11 of the Limburg Principles states:

A concerted national effort to invoke the full participation of all sectors of society is...indispensable to achieving progress in realizing economic, social and cultural rights. Popular participation is required at all stages, including the formulation, application and review of national policies.

Thus communities can claim their right to participate in the discussions and decision-making on governmental policies and plans in economic, social and cultural spheres.

In a situation where the core content of a right has not been determined, it may be possible for a rights claim to be made in court, through an administrative channel or other judicial or quasi-judicial fora based on the argument that the right to participation has been violated. For example, a group may argue that the design and implementation of a large-scale development project such as a hydroelectric dam -- which would involve relocation of communities and affect their access to land, water and other resources -- did not involve the communities which would be most immediately and directly affected by it. In this way, the core content of the specific rights (for example, the rights to land, food, housing, health) would not be elaborated, but the rights could be promoted through a ruling which would require the participation of the community.

True and effective participation depends upon the level to which communities and those involved in a process are aware and informed about issues, problems and potential solutions. Access to timely and accurate information on the availability and distribution of resources, potential plans and policies, as well as decision-making processes is, therefore, a prerequisite for participation. Recognition of the human right to access to information is found in Article 19 of the ICCPR.

A community-based organization in India points out that, although Article 19 has generally been embraced by intellectual and political elites because of its relationship to freedom of expression, its provisions for access to information can and ought to be used to protect the rights of the poor and dispossessed to participate in public processes which affect their lives.

The transparency in the state development expenditure would facilitate an informed debate on the mode of development. By selective release of information, a minority elite group defines the destiny of millions of citizens. By controlling the information flow, it also provides numerous avenues for corrupt practices. The transparency and social audit of development expenditure by empowering the people also strengthens participative democracy in the nation.

Thus, freedom of information is closely tied to Article 25 of the ICCPR on participation.

In the recent process of drafting and adopting the new South African Constitution, the Legal Resources Centre lobbied for the inclusion of provisions on access to information, recognizing the critical role that such access will play in the ability of citizens to take part in the conduct of economic, social, civil, political and cultural affairs. Though only a few organizations seem to have significant experience in advocating for access to information, the right to participation, specifically in the formulation of policies and legislation related to ESC rights, is dependent to a large extent on securing the right to information on matters affecting public affairs.

Progressive Realizationtc \l4 "Progressive Realization

Provisions for the progressive realization of ESC rights found in Article 2 of the International Covenant on Economic, Social and Cultural Rights may be used as a tool for advancing the protection and promotion of ESC rights even where the core content of the rights has not yet been fully clarified. Article 2.1 states:

Each state party to the present Covenant undertakes to take steps individually and through international assistance and cooperation, 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 in particular the adoption of legislative measures.

The phrase “to the maximum of available resources” allows for a difference among countries in the nature and extent of ESC policies, programs and services. The Limburg Principles state that “the economic, social and cultural rights may be realized in a variety of political settings. There is no single road to their full realization. Successes and failures have been registered in both market and non-market economies, in both centralized and decentralized political structures.” The Limburg Principles go on to explain that the “obligation of progressive realization exists independently of the increase in resources” and therefore applies in all countries, regardless of the level of economic development.

The differences in economic and political systems and available resources among countries poses a challenge to establishing ESC standards which can be internationally recognized. One way that the Committee on Economic Social and Cultural Rights has approached this challenge is by adopting a method for assessing the periodic reports states parties to the Covenant are required to submit. The CESCR uses the information on the policies, legislation, programs and services a government details in its initial report to the Committee to help establish a baseline by which to assess the progressive realization of the rights as reported in subsequent periodic reports. The Committee urges state parties to describe goals and specific “bench-marks” for the policies they detail in their reports to help assess its performance related to these policies in subsequent reports.

By monitoring the status of legislation and policies designed to meet the economic and social needs of a country’s populations, activists may be able to identify and demonstrate cases where the repeal of legislation or cutting a budget related to social programs would be a regressive act. Such acts or omissions may be considered a violation of the state’s obligation to progressively implement measures for the fulfillment of ESC rights.

SECTION IItc \l1 "SECTION II

Strategies and Tools

for ESC Rights Activism

Chapter 3

Organizational Issues, Goals and Strategiestc \l2 "Chapter 3Organizational Issues, Goals and Strategies

There is not a right or wrong way to go about ESC rights work. However, the effectiveness of any organization is predicated upon its ability to identify clearly the issues or problems it aims to tackle, establish goals for addressing them, decide on priorities among these goals, and develop strategies for addressing them. This process is that much more important in a field such as economic, social and cultural rights, where relatively few resources or models have evolved and considerable challenges remain to achieving the legitimacy of these rights.

The development of an organizational strategy for work in economic, social and cultural rights can be thought of as the result of finding a “fit” among:

· the overall mission of the organization or program, what it intends to accomplish;

· the external issues the organization or program has decided to address, as well as any potential challenges or limitations it may face; in other words, consideration of what is needed within its context and what is feasible for the organization to accomplish given the community/constituency/country within which it works; and

· the organization’s strengths and weaknesses; that is, what is the organization capable of doing, what resources are available within or to it, and what capacities does it have or can it reasonably obtain?

The context within which organizations work, the specific issues/problems they face related to ESC rights, and the capacity of organizational staff or members are all dynamic, necessitating con-sistent monitoring of the work and its effectiveness. Thus, while a clear definition of the mission and its relationship to issues, goals and strategies is critical to the effectiveness of any organization, flexibility and an ongoing assessment of its work are equally important.

At times, since systematic work on ESC rights is so relatively new, groups may often have to “muddle along,” assessing and building upon what they learn through trial and error. If the work is discouraging, they can remember that because the work they are doing is pioneering, goals and time lines set at the beginning of the work may be unrealistic; they may need to narrow the focus or adjust time lines in response to difficulties they encounter.

The following examples illustrate the strategic thinking and approaches two organizations have taken to their ESC rights work.

Example: FLAG and its Economic, Social and Cultural Rights Program

Mission/organizational goals

The Free Legal Assistance Group (FLAG), founded in 1974, is an organization of volunteer lawyers throughout the Philippines who provide their services free of charge to promote the rule of law and respect for human rights. Its vision is to create just social structures to facilitate develop-ment towards the full realization of human rights. FLAG follows a philosophy of developmental legal advocacy (DLA), whose objective is to remedy injustice, not merely by enforcing the law, but also by changing it as well as the underlying social structures which perpetrate or sustain injustice and inhibit development. FLAG has three central goals:

· To help people help themselves through raising their awareness of their own power to act, encouraging people to organize and act collectively and making full use of legal advocacy’s educative function

· To politicize legal aid and involve clients in identifying the specific social structures and forces which have caused their legal problems, and to work with them to create both legal and social solutions

· To contribute effectively to development and justice by seeking to vindicate collective rights, recalling that FLAG’s role is purely supportive of the poor, the dispossessed and the disenfranchised who must ultimately rely on their own organized efforts to gain justice and benefit from development

Context

President Ramos introduced a national development plan entitled “Philippines 2000.” The plan comprises macroeconomic and sectoral policies and strategies involving changes in credit and monetary management, agro-industrial development, human development, infra-structural development and development administration. Philippines 2000 was released in 1992, and by 1996 FLAG had already identified three emerging trends which have detrimental consequences. Prime agricultural lands are being converted to agro-industrial lands, foreshore land is being converted to tourist resorts, and the development program in certain parts of the country has been accompanied by militarization. These trends are resulting in the dislocation and forced displacement of farmers, forest communities and fisherfolk, loss of livelihood and food sources in these regions, and large-scale destruction of natural resources.

FLAG’s members throughout the country have handled many cases related to these trends. Most alarmingly, the number of urban poor approaching FLAG about evictions and demolitions of homes has drastically increased. FLAG has also found the case-by-case legal aid approach which it had heretofore been using did not work in this situation, and thus the poor have no practical legal recourse or remedy in most of these cases. FLAG felt a pressing need to develop a systematic and effective approach to these problems.

Internal capacities

FLAG’s members are skilled in utilizing law as a tool to seek justice and working with people to learn about their problems, critically analyze legal and social structures, educate them on their legal rights, and facilitate their recognition of and ability to advocate for themselves. FLAG also has significant experience using a human rights approach. FLAG’s National Board felt that despite its lack of experience wo