Geneva, 14 June 2016
Mr President, distinguished delegates, representatives of civil society,
Respect for economic and social rights is an indispensable component in the struggle to eliminate extreme poverty. My thematic report to the Council examines the progress, and more importantly, the shortcomings in national and international efforts to ensure that these rights are treated as human rights, and not simply as development goals or welfare programs.
Until ESR are given their full due, we will continue to struggle, both in terms of addressing extreme poverty as a human rights issue, and of restoring faith in the human rights endeavour whose hold on the popular imagination is today very much at risk.
Let us start with the theory. Para 5 of the Vienna Declaration states:
All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis
In the almost 30 years since the Committee on Economic, Social and Cultural Rights was established, there has been important progress. Until 18 years ago this Council had not appointed a single Special Procedure to focus explicitly on an ESCR issue. Since then we have seen large numbers of General Comments, the creation of a complaints mechanism, a series of very dedicated and effective Special Rapporteurs, a slew of resolutions at all levels, important programs undertaken by the OHCHR, and a much greater overall awareness.
But this progress needs to be set against the broader picture.
Over 2 billion people continue to be either near or living in multidimensional poverty, and without China’s achievements, these figures would be much higher.
In the overall political and especially economic trajectory of most States today, ESR are either implicitly or explicitly marginalized or contradicted. The winds of globalization are blowing in directions that are not at all favourable to these rights.
But even within the human rights framework, ESR remain marginal. They are, all too often, little more than the afterthought to be mentioned in the interests of political correctness. As I note in my report:
acceptance in law and in practice of the idea that economic and social rights are actually human rights, with the set of clear legal consequences that this entails, rather than a set of concerns synonymous with development or social progress, remains marginal. This marginality manifests itself in the work of United Nations human rights bodies, in both the theory and practice of the great majority of States, in the work of many of the most prominent civil society groups focusing on human rights, in the interests and priorities of scholars and commentators and, perhaps most counter-intuitively, even in the work of most international agencies promoting poverty alleviation and social development. As a result, the principal of indivisibility continues to be honoured more in the breach than in the observance.
At the national level, several achievements are often noted. First, over 90% of the world’s constitutions recognize at least one ESR, and six ESRs (education, trade unions, health care, social security, child protection and environmental protection) appear in over half of all constitutions. But the reality is that constitutional recognition has not led to significant follow-up action in most of those States.
Second, in 70% of constitutions at least one ESR is justiciable. And constitutional or supreme courts in some countries have produced remarkable judgments giving effect to these rights. But again, the reality is that the case law that is so celebrated in this area actually comes from a handful of jurisdictions – India, South Africa, Colombia and just a few others. ESR are not, in reality, widely justiciable in practice, even if they are in theory.
Third, many NHRIs acknowledge the importance of ESR, but again only a handful have sustained and meaningful programs that deal with these issues.
At the international level, the progress that has been made in theory also looks far less impressive in practice. Take this Council for example and consider the attention given to ESR in most reports by Commissions of Inquiry, or in country reports by Special Rapporteurs, or in negotiations over transitional justice arrangements. To be sure, there are important exceptions, but they are not at all the rule. For the most part, the approaches adopted reveal a clear set of priorities, and ESR are not amongst them. A new survey by the Center for ESR of the UPR revealed that while 37% of all recommendations made in the UPR process concern civil and political rights, only 17% relate to ESCR. Only 9% of the total recommendations made by WEOG states focused on ESCR.
Some international organizations, such as the World Bank and the International Monetary Fund, are impressively even-handed in this respect: they ignore both sets of rights.
But the most encouraging developments by far concern the efforts made in recent years by the ILO through its Social Protection Floor activities, and the WHO through its promotion of Universal Health Coverage. In both cases these programs are premised squarely on human rights.
NGOs present a mixed picture. At the national level, many groups have done extraordinary work on ESR. At the international level, there are also important initiatives, especially in specific sectors such as health, housing, water/sanitation, food and education. But the largest international NGOs reveal a different picture. Amnesty International has tried to embrace ESR but has not yet been successful. Human Rights Watch has tried around the edges of its work, but ESR remain peripheral and unintegrated.
Does this marginalization really matter? Absolutely. Inequality will not be tackled meaningfully without a sustained focus on ESR. Counter-terrorism programs require attention to the ESC rights of those who are excluded or marginalized in the societies in which they live. Right-wing populism is driven in part by appealing to those who have a sense of being excluded from the benefits of economic growth. The legitimacy of the human rights enterprise is threatened if a narrow and unbalanced set of priorities is reflected. And the bulk of the population who are expected to embrace and demand human rights will remain unmotivated and unmobilized by a conception of rights that fails to address the issues that are often of overriding concern to them.
The starting point for putting ESR back on the map is to acknowledge that we need to lay meaningful foundations through what I call the RIA framework: Recogniton, Institutionalization, and Accountability. In other words, we need (a) to accord legal recognition to the rights; (b) to establish appropriate institutional arrangements to promote and facilitate realization of the rights; and (c) to adopt measures that promote governmental accountability. My report seeks to suggest some of the ways in which this can be done and to argue that unless these foundations are established many of the more sophisticated programs currently being pursued are unlikely to succeed.
Visit to Mauritania
I visited Mauritania from 2-11 May, 2016. The challenges that Mauritania confronts are best illustrated by UNDP’s estimate that multidimensional poverty stands at 55.6% nationally, with an additional 16.8% living near multidimensional poverty. The Government cooperated fully with my visit and my end of mission statement dealt with a range of issues that I hope will be addressed in the future. I shall be presenting my final report to the Council at its 35th session.
Visit to Romania
I visited Romania from 2 to 11 November 2015 and received excellent cooperation from the Government. Romania has made immense progress since the Communist era in eradicating poverty. Nevertheless, it still lags behind almost all other European Union countries in most measures of poverty and social exclusion. This is particularly problematic given the view of most observers that it has the fiscal space to do much more if the political will existed.
Many Romanian officials are in denial about the extent of poverty and especially about the systemic and deep-rooted discrimination against the extremely poor, particularly the Roma, as illustrated by cases of forced evictions and police abuse. My report examines in detail the alarming levels of poverty and social exclusion faced by Roma, children in rural areas, and children and adults with disabilities. It finds that Romania’s social security system, based on a “social safety net” approach and heavily oriented towards cash benefits, is problematic and does not really treat social protection as a right. The situation of children living in poverty needs to be addressed much more systematically, including through a program providing universal cash benefits for children and a minimum package of integrated services for children and their families.
While the Government’s increasing engagement with civil society is impressive, there is a risk that responsibility for programs to eliminate extreme poverty will be outsourced in ways that are not consistent with the Government’s ultimate responsibility to ensure the protection of human rights. This risk should be guarded against.
My visit coincided with a corruption scandal that brought the collapse of the then Government. Today, in the country which has Europe’s highest rate of ‘avoidable deaths’, another scandal has erupted involving what appears to be widespread collusion among hospital administrators and the producers of heavily diluted antiseptics and disinfectants. Continuing and enhanced anti-corruption efforts are central to the ability of Romania to eliminate extreme poverty and ensure that its citizens enjoy their full range of economic, social and cultural rights.
Other problems include a tax policy that underpins unduly low levels of social spending, a lack of technical expertise in key ministries, and the decentralization of responsibilities unmatched by the provision of adequate resources. My recommendations include official acknowledgement of the extent of continuing discrimination against Roma, the collection of disaggregated data on ethnicity in order to devise effective measures of redress, effective domestic implementation of the Convention on the Rights of Persons with Disabilities, increased social spending and social services, and the implementation of necessary institutional reforms.
In conclusion, let me add that I am very gratified by the extent to which Government agencies have engaged with and responded to my report. The document containing the Government’s observations on my report provides excellent testimony to that effect.
Visit to Chile
I visited Chile more than one year ago and am grateful to the Government for its cooperation. In my report, I note that while Chile has taken giant steps forward in social and economic development, it remains a highly segregated and unequal society with unacceptable rates of poverty and extreme poverty. The main factors hindering the effectiveness of the efforts of Chile in tackling poverty and inequalities include the fragmentation of anti-poverty programmes, the lack of sufficient “institutionality” to implement human rights, the attenuated role of labour market institutions to protect labour rights, persistent discrimination against and the absence of constitutional, legal and institutional protection of marginalized groups, such as indigenous peoples, children, lesbian, gay, bisexual, transgender and intersex persons and migrants. My recommendations include the adoption of a comprehensive anti-poverty programme that is well-coordinated among the various ministries and the establishment of a well-funded and well-staffed Office of the Under-Secretary for Human Rights integrating economic, social and cultural rights as a key part of its mandate.
Thank you Mr President.
UNDP, ‘Briefing note for countries on the 2015 Human Development Report: Mauritania’ (2015), available from: http://hdr.undp.org/sites/all/themes/hdr_theme/country-notes/MRT.pdf