A "Violations Approach" to Monitoring the International Covenant on Economic, Social and Cultural Rights
Human Rights Dialogue 1.10 (Fall 1997) "Efforts, East and West, to Improve Human Rights Assessments"
September 5, 1997
Effective monitoring of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), which is central to the realization of the rights it enumerates, is not taking place. While many factors contribute to this problem, rectifying the situation requires a departure from “progressive realization,” the current standard used to assess governments’ compliance with the covenant’s provisions. Progressive realization renders economic, social, and cultural (ESC) rights very difficult to monitor; therefore I argue that the United Nations system and relevant nongovernmental organizations should adopt a “violations approach” to monitoring these rights.
The standard of progressive realization arises out of Article 2 (1) of the ICESCR, which commits states parties —countries that have ratified the covenant—to take steps individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized.
This differs considerably from the standard set forth in Article 2 of the International Covenant on Civil and Political Rights (ICCPR), which specifies an immediate obligation to respect and ensure all enumerated rights. The requirement that progressive realization be evaluated according to “available resources” assumes that the valid expectations and concomitant obligations of states parties under each enumerated right are not uniform, but instead relative to levels of development and available resources. This necessitates the creation of a multiplicity of performance standards to fit the many social, developmental, and resource circumstances of specific countries.
The process of measuring progressive realization only gets more complicated. It requires assessing a state’s current performance and gauging whether the state is moving expeditiously and effectively towards full implementation of ESC rights. Assessing trends requires that comparable statistical data from several periods be available. Also, because national averages reveal little about the situation of specific groups, much of the data would need to be disaggregated in relevant categories— gender, race, region, socioeconomic groups, urban/rural divisions, and linguistic groups. A thorough evaluation would therefore require complicated analyses of an enormous quantity of data. Many governments do not have data of the quality needed for this type of analysis. If they do, they rarely make it available to monitoring bodies or NGOs. Moreover, most NGOs currently lack the capabilities to retrieve and analyze such complex statistical data and establish and manage an information system of the scale needed.
Given these limitations, there is a need for a new approach to monitoring ESC rights. Instead of attempting to evaluate progressive realization, it seems more fruitful and significant to focus on monitoring violations. A “violations approach” is more feasible precisely because it does not depend on the availability and public release of extensive and appropriate statistical data or on major improvements in states’ statistical systems. The monitoring of human rights is not an academic exercise; it is intended to ameliorate human suffering resulting from violations of international human rights standards. It follows that identifying violations in order to end and rectify abuses deserves a higher priority than promoting progressive realization. An added benefit of focusing on the identification of violations is that it may prove a more effective path to conceptualizing the positive content of ESC rights than the more abstract legal or philosophical analyses attempted thus far.
A “violations approach” would also make it easier to identify and specify violations. The work of the Committee on Economic, Social, and Cultural Rights demonstrates that rights violations can be identified without having first to conceptualize the full scope of the right in question and the obligations of state parties. Although the committee has not yet set parameters for interpreting each of the constituent rights in the ICESCR, its members have come to agreement on a range of concerns and problems relating to the peformance of states parties. Each country review includes a profile of these “principle subjects of concern” and the committee’s “suggestions and recommendations.” As the committee drafts General Comments on specific rights and as more NGOs participate in its work, the review process is likely to become even more oriented towards violations.
To facilitate monitoring of the ICESCR, I am proposing a tripartite categorization of violations. (See Box, page 19.) The first category includes state violations resulting from government actions, policies, and legislation. The second contains violations related to patterns of discrimination. The third includes violations related to the state’s failure to fulfill minimum core obligations of enumerated rights.
Comparable to infractions of civil and political rights, violations in the first category are predominantly acts of commission: activities of governments that contravene ICESCR standards. Others are policies or laws that create conditions inimical to the realization of recognized ESC rights. In labeling these failures of state policy as violations of the ICESCR, the language of Article 5 should be borne in mind:
Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights or freedoms recognized herein.
Violations related to patterns of discrimination, in the second category, represent a fundamental breach of the ICESCR. Article 2(2) calls on states parties to guarantee that the rights enumerated in the 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.” Article 3 further amplifies that states parties are required “to undertake to ensure the equal rights of men and women to the enjoyment of all economic, social, and cultural rights set forth in the present Covenant.” Note that both articles intend that nondiscrimination not be subject to progressive realization. Examples abound of violations reflecting discriminatory actions by states parties, both in the failure to ensure nondiscrimination and in initiatives and policies that perpetuate or aggravate forms of discrimination.
Violations in the third category represent government failure to fulfill minimum core obligations. In its third General Comment, issued in 1990, the committee states that it “is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every state party.” Similarly, the committee underscores that even in times of severe resource constraints the vulnerable members of society “can and indeed must” be protected by the adoption of relatively low-cost targeted programs.
This proposed listing of violations is preliminary and serves primarily as a set of examples. The Science and Human Rights Program of the AAAS and Human Rights Information and Documentation International, a Geneva–based human rights network, are compiling a more complete inventory of examples of each of the three types of violations as they occur in specific regions and developing resources to improve the monitoring capabilities of NGOs. Two resources, a thesaurus of types of violations that monitors are likely to encounter and an introductory manual explaining the foundations of ESC rights, the nature of violations of these rights, and how and where to report violations, will be available by the end of 1997. The project has commissioned a series of experts to write papers on the minimum core content of the enumerated rights in the covenant and related violations, and plans to produce an edited volume of these papers during 1998. In 1998 the project will also begin producing and field testing manuals on monitoring specific economic, social, and cultural rights.
AAAS would like to make contact with NGOs and other organizations that are interested in collaborating in its work on ESC rights and evaluating or field testing its forthcoming manuals on monitoring ESC rights. Please e-mail Audrey Chapman (firstname.lastname@example.org) or write to her care of the AAAS Science and Human Rights Program, 1200 New York Avenue, NW, Washington, DC 20005.