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COMMENT / UNIVERSAL DECLARATION OF



Subject: COMMENT / UNIVERSAL DECLARATION OF HUMAN RIGHTS

 
October 23, 1998 							
								

    								


COMMENT / UNIVERSAL DECLARATION OF HUMAN RIGHTS

Social justice is a 
human right

The most comprehensive declaration on the protection of human rights came
into force 50 years ago tomorrow, but still there is resistance to the
recognition of economic and social rights in some countries of the world.


Social justice is a human right

THOMAS HAMMARBERG 
Phnom Penh
There is a widespread misunderstanding about human rights: that they are
limited to freedom of speech, protection against torture and other civil
and political rights. It is important that the real meaning of the rights
package is clarified now when the 50th anniversary of the Universal
Declaration of Human Rights is being honoured.
The Universal Declaration established that human rights include the right
to social security, the right to a reasonable living standard, the right to
food, the right to education, the right to housing, the right to health,
the right to work and the right to rest and leisure.
This is important, it makes social justice a matter of right. It draws a
clear line between entitlement and charity.
If one day you are in need of state support, it is an enormous difference
between receiving this because you have the right to it or because someone
feels pity for you. The rights approach to social welfare protects the
dignity of everyone, even the weakest in society.
However, the inclusion of economic and social rights in the Universal
Declaration was controversial from the very beginning. When it was adopted
in Dec 1948, there already were voices - not least in the United States -
which argued that "Freedom from Want" - to use the term of President
Roosevelt - should not be seen as a human right.
This division contributed to the unfortunate stalemate in the human rights
discussion within the United Nations in the '50s. In the shadow of the Cold
War, the effort to translate the Universal Declaration into a binding,
legal convention on human rights was frustrated for years. Not before 1966
could the General Assembly adopt texts with legally binding norms.
However, it had become necessary to divide the rights listed in the
Universal Declaration into two conventions.
That is why we now have both the International Covenant on Civil and
Political Rights and the International Covenant on Economic, Social and
Cultural Rights.
The fact that it was not possible to keep the rights within the same
package perpetuated the perception that the rights were different in
nature, that economic and social rights were secondary. This
misunderstanding was further spread by a terminology which grouped the
rights in different "generations", with the economic and social rights
being placed in the second generation.
The distinction had an impact.
In reality the economic and social rights became neglected in the
discussion. The UN Commission on Human Rights spent little time on these
rights and the committee set up to monitor them received a lower status
than the committee on civil and political rights. It did not help much that
the General Assembly made statements that all rights were of equal
importance and indivisible.
Breakthrough
All this had ideological roots. One US representative in the United Nations
summarised what she described as a "Western" position: that economic and
social rights could only be regarded as ambitions, no more.
This controversy still prevails. However, Mary Robinson, the new High
Commissioner for Human Rights, has made repeated statements about the
importance of economic and social rights. Now, some of the European
governments have also taken clear positions on giving these rights more
emphasis and priority. This was done by the Swedish government a couple of
months ago.
A recognition of the importance of economic and social rights does not mean
in any way a downgrading of civil and political rights. Or cultural rights.
The attempt to create a competition or contradiction between the various
rights is a hangover from the Cold War era. All the rights go hand in hand;
they are mutually supportive.
This is also supported by experiences made.
The choice is not between economic development and freedom. Governments
which have limited freedom of expression tend to have problems with their
economic policies. When Prime Minister Indira Gandhi declared emergency in
India in 1975, and arrested tens of thousands of political and trade union
activists, she argued that India needed stability in order to foster
economic development. But stability through repression tends to be
short-lived, so also in India.
It is now widely recognised that economic growth and eradication of poverty
indeed are encouraged by free discussion and the rule of law.
Prof Amartya Sen - who will receive the Nobel Prize in Economics in
December - has helped us understand these connections through his studies
on how censorship contributed to hunger disasters in South Asia.
The cause-effect goes in the other direction as well: it is no doubt easier
to enhance and promote civil and political rights if there is positive
economic development and economic and social rights are protected.
Burning issues
So what is the problem? What has made this an issue at all? Why have
economic and social rights not been fully recognised?
As said above, there is an ideological dimension to the question. Human
rights are addressed to governments; it is governments which should
guarantee that the citizens can enjoy their rights.
Those who believe that governments should be as small as possible may have
difficulties here. They may not accept that governments should take
responsibility for providing possibilities for education, health care and a
decent standard of living for their citizens.
In fact, economic and social rights deal with some of the most burning
issues on today's political agenda: the right to a job and acceptable
working conditions, the right to go to school and have a meaningful
education, the right to protection and care in situations of crisis. In
periods of recession, structural adjustment and economic reform, these
questions tend to be particularly sensitive. This is probably one reason
why governments have hesitated to make them a matter of right.
The fact that economic and social rights are sensitive is no rational basis
for treating them as less important or as radically different from other
rights. It shows that they are relevant.
However, one should not simplify. There are questions which should be
clarified in order to facilitate the promotion of economic and social
rights and make their place in the human rights discourse meaningful and
obvious.
One is whether these rights are affordable, whether the state indeed can
pay for them. Another is whether they can be made legal.
Resources
Let me start with the problem of resources.
The implementation of most human rights has a cost side, although some of
the economic and social rights tend to be particularly expensive - for
instance, the right of everyone to an education. How does one conduct a
meaningful discussion about the implementation of such rights?
A government could of course state that it wants to meet the requirements,
but that it just does not have the funds to finance the necessary reforms.
This is indeed what many governments do say. Herein lies the challenge.
This should be the beginning of the discussion, not the end of it.
The Covenant on Economic, Social and Cultural Rights emphasises efforts to
move in the direction of full implementation of the standards. The key
formulation included in Article 2 of the Covenant states the obligation of
state parties:
"Each state party to the present Covenant undertakes to take steps
individually and through international assistance and cooperation - to the
maximum of its available resources, with a view to achieving progressively
the full realisation of the rights recognised in the present Covenant by
all appropriate means, including particularly the adoption of legislative
measures."
This means that all available resources, irrespective of whether they are
internal or derived from assistance, must be utilised to the maximum in
order that the rights should gradually be realised. States must thus strive
to attain the goal as soon as and as efficiently as possible; it cannot
postpone the realisation of the norms in the Covenant indefinitely. Also,
it should be able to demonstrate that it is taking steps towards full
implementation.
The UN Committee on Economic, Social and Cultural Rights - which monitors
the realisation of the Covenant - has developed a two-pronged approach.
All states, irrespective of their economic circumstances, must guarantee a
minimum acceptable standard (minimum core entitlement) which corresponds
with a particular obligation for the state (minimum obligation).
At the same time, the rights shall be realised by utilising to the maximum
of the available resources, which means that the level of, for example,
education and health care should be higher in richer countries than in
poorer ones.
For this, the definition of socio-economic indicators is particularly
important; such benchmarks have been developed in the field of health and
education by the UN Children's Fund (Unicef), the World Health Organisation
and the UN Education Social and Cultural Organisation (Unesco). They are an
interesting beginning to a discussion on whether states are serious about
trying to implement the rights.
Law 

Next problem. Can the obligations related to economic and social rights be
defined and translated into law?
Equality between the sexes, trade union rights to enable workers to assert
their claims, the right to schooling together with the protection of
children against exploitation are examples of manifest claims for rights
that can be reflected in legal norms.
In fact, it is important that they are. However, other rights cannot as
easily be given legal form, at least not in a detailed form. This is no
reason to downgrade their importance. Law is only one aspect of
implementation, other means are available to encourage and monitor compliance.
One aspect that can be protected legally is that the rights are enjoyed by
everyone. Prohibition of discrimination is central to all human rights
standards.
Take, for example, the norms about equal pay for work of equal value; they
can be protected by law. Such legislation can be inspired by the Covenant
on Economic, Social and Cultural Rights which rules that women, in
particular, should be guaranteed conditions of work "not inferior to those
enjoyed by men, with equal pay for equal work".
Local issue 

Implementation of economic and social rights - as with all human rights -
is primarily a local and national issue. It is in the parliaments that the
essential legislation has to be adopted; it is on local and national levels
that the administrative and other structures must be built to protect and
enhance the rights.
The international standards can, however, be a source of inspiration and of
course be the basis for interstate agreements, for instance on development
cooperation. When governments have ratified international norms on human
rights this means an undertaking also to its own citizens.
The International Covenant on Economic, Social and Cultural Rights has now
been ratified by 137 states.
With this Convention as a basis, there are articles on economic, social and
cultural rights incorporated into conventions on the Elimination of All
Forms of Discrimination of Women and on the Rights of the Child.
What can we do? We could press all states to ratify these conventions. The
most successful one so far is the Child convention, which now has near to
universal support - with the glaring exception of the United States.
ILO
No international body has been as important for economic and social rights
as the International Labour Organisation (ILO). For almost 80 years,
tripartite cooperation between governments, employers and labour
organisations has resulted in more than 180 conventions and even more
recommendations concerning labour and social issues.
A campaign is now organised for the ratification of the organisation's
seven key ILO conventions relating to human rights: Conventions 87 and 98
on Freedom of Association and Negotiating Rights; Conventions 29 and 105 on
the Abolition of Forced Labour; Conventions 100 and 111 on
Non-discrimination in Working Life; and Convention 138 on Minimum Working
Ages.
This campaign deserves support, as does the proposal for a declaration to
promote these minimum core standards. They are so fundamental that they
should be regarded as binding on all ILO member countries.
The ILO norms are important for operations conducted by other relevant
international organisations, including the World Bank, the International
Monetary Fund and the regional development banks. For instance, the
decision within the World Trade Organisation (WTO) on dialogue with the ILO
on labour law issues should be pursued.
World Conferences
The World Conferences earlier during this decade dealt to a large extent
with economic and social rights. One of them was the UN summit meeting on
social development in Copenhagen in 1995. The main theme there was the
battle against poverty, unemployment and social exclusion and the result
was a number of recommendations on the right to an adequate living
standard, the right to work and the right to social security.
Other major World Conferences during the '90s have discussed economic and
social rights. I was myself one of the initiators of the Summit for
Children. After that came the Vienna conference on human rights, the
Istanbul summit on habitat, the Cairo conference on population issues and
the Beijing conference on women and gender equality.
All these meetings have pushed the major international organisations to
focus on economic and social issues in their programmes.
Indeed, there is now an interesting trend towards applying a rights
perspective. The operations within the UN Food and Agricultural
Organisation (FAO) are linked to the right to food; the World Health
Organisation (WHO) emphasises the right to health more than previously; the
International Labour Organisation (ILO) develops the right to employment
and acceptable working condition; and Unesco works within the field of the
right to education and culture.
Unicef last year adopted a mission statement that laid down the rights of
the child as the aim of the organisation and nowadays uses the Convention
on the Rights of the Child and its reporting processes as a basis for its
programme dialogue with governments. The UN Development Fund for Women
(Unifem) uses the Convention on the Elimination of All Forms Discrimination
against Women in a similar manner.
Enrich human rights
It took about 50 years for the international community to accept the wisdom
of President Roosevelt when he wanted to see "Freedom from Want" as an
integral part of our work for human rights. In spite of continued
resistance in his own country, it now seems possible that economic and
social rights might be recognised in real terms.
This will enrich the very concept of human rights and the discussion about
effective means of making a reality of the rights.
At the same time it will add an important dimension for the political work
to improve the lives of all disadvantaged individuals, to ensure equal
status for women and to give children a better start in life. In other
words, it will strengthen the forces for social justice.
* Thomas Hammarberg is ambassador and special representative of the UN
Secretary-General for Human Rights in Cambodia. 							 	

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Last Modified: Fri, Oct 23, 1998
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