Economic, Social, and Cultural Rights: Questions and Answers
by Shulamith Koenig and the staff of Peoples Decade for Human Rights Education
Q: What, in general, do we mean by economic, social, and cultural rights?
Human rights is an expression that covers a wide range of aspects of human existence considered essential for life in dignity and security. Some of these relate to the freedom of the individual to act as she or he pleases as long as it does not infringe on the rights and freedoms of others. These liberty-oriented rights are usually called civil and political rights and include freedom of speech and religion, the right to fair trial, and the right to be free from torture and arbitrary arrest. Other rights relate to conditions necessary to meet basic human needs, such as food, shelter, education, health care, and gainful employment. These are called economic, social, and cultural rights.
Q: Which are more important: economic, social, and cultural rights, or civil and political rights?
All rights civil, cultural, economic, political, and social are considered universal, indivisible, and interdependent and interrelated (1993 Vienna Declaration and Program of Action, Part I, paragraph 5). When considered together, these rights basically address the human being, whomever he or she is, as a whole person free from fear and free from want. In the United States, when people speak of rights, they often stress the civil and political rights guaranteed citizens by the Constitution and Amendments. In countries where the basic needs of individuals are not fulfilled, and for groups of people discriminated against in certain countries, social and economic rights are often of primary concern.
In all societies, both types of rights are integrally related. People who are denied civil and political rights have no means of protecting the economic, social, and cultural rights that guarantee them their basic needs. Similarly, in a society where basic survival needs are not met, civil and political rights are meaningless if an individual must first be concerned with obtaining adequate food, shelter, and health care.
The interdependence and importance of rights extends to the global level. Violations of social, economic, and cultural rights are responsible for patterns of increased income disparity and economic exploitation.
Q: Which economic, social, and cultural rights are guaranteed in international human rights documents?
In the Universal Declaration of Human Rights, Articles 22 through 27 encompass economic, social, and cultural rights.
Article 22 states Everyone is entitled to realization . . . of the economic, social, and cultural rights indispensable for his dignity . . . .
Article 23 articulates the right to work, to choose employment, and to form labor unions.
Article 24 sets forth the right to rest and leisure, and of reasonable limitation of working hours.
Article 25 includes a persons right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, and medical care and necessary social services.
Article 26 states that individuals have the right to education, free and compulsory at the elementary level, with technical and professional education generally available, and higher education equally accessible on the basis of merit.
Article 27 describes the right to freely participate in the cultural life of the community, to enjoy the arts, and to share in scientific advancement.
These rights are further elaborated in the International Covenant on Economic, Social, and Cultural Rights. They are also articulated in specialized human rights treaties such as the Convention on the Rights of the Child (CRC) and the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW), treaties that focus on the needs of particularly disadvantaged, marginalized, and vulnerable groups of people all over the world.
Q: Do any of these human rights documents have the force of law?
The Universal Declaration is a resolution of the General Assembly of the United Nations of a particularly solemn type, which creates a high expectation that it will be taken seriously. However, the Declaration does not create obligations that are technically binding in law. Nevertheless, because the Declaration is so widely used as the primary statement of what are considered human rights today, it is often regarded as having legal significance. It is considered customary international law and as the authentic interpretation of the references in the U.N. Charter.
The specific rights in the UDHR have been codified into the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). A Covenant is a treaty which, under the rules of international law, creates legal obligations on all states that ratify it. Similarly, the Convention on the Rights of the Child (CRC) and Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW) also are treaties that are binding on the states that ratify them.
Therefore, citizens worldwide should put pressure on their governments to ratify these treaties and to abide by the obligations they set forth. For example, a right to health care is mandated by the ICESCR, meaning that a basic and adequate health care entitlement should be guaranteed to all citizens and residents of countries ratifying the treaty.
Q: Not all countries are in equal positions to provide for their citizens. How is this dealt with in the ICESCR?
The ICESCR states that each state party to the covenant should undertake 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 Covenant, by all appropriate means, including particularly the adoption of legislative measures.
It also states that state parties must guarantee these rights without discrimination with respect to race, color, sex, language, religion, political or other opinion, or social status.
Q: Is the United States a party to the International Covenant on Economic, Social, and Cultural rights?
No. The United States signed the Covenant in 1979 under the Carter Administration but is not fully bound by it until it is ratified. For political reasons, the Carter Administration did not push for the necessary review of the Covenant by the Senate, which must give its advice and consent before the United States can ratify a treaty. The Reagan and Bush Administrations took the view that economic, social, and cultural rights were not really rights but merely desirable social goals and therefore should not be the object of binding treaties. The Clinton Administration has not denied the nature of these rights but has not found it politically expedient to engage in a battle with Congress over the Covenant. If the Covenant were to be considered at this point in time, it would likely result either in defeat of ratification or in accompanying the ratification with reservations that would empty it of any meaningful obligations. Several organizations in the United States are mobilizing community groups to put pressure on the Congress to ratify this treaty in connection with the 50th anniversary of the UDHR.
Q: Although the United States has not ratified the Covenant, does it have any obligations as a signatory of the Covenant?
Yes. According to the law of treaties, a government that has signed but not ratified a treaty (like the Covenant), must refrain from acts which would defeat the object and purpose of [the] treaty . . . until it shall have made its intention clear not to become a party . . . . Unfortunately, courts in the United States are not likely to attach much importance to this rule if an action were brought before them that claims the United States is defeating the object and purpose of the Covenant.
Q: What would it mean to ordinary people if the U.S. Senate gave its advice and consent and the United States ratified the Covenant?
It would mean four things:
(1) The United States would be required to take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the Covenant.
(2) The United States must ensure that the rights in the Covenant are enjoyed without discrimination based on race, color, sex, religion, political or other opinion, national or social origin, property, birth, or other status. (In most countries, other status includes disability and in some countries also refers to sexual orientation.)
(3) The United States would be required to report to the U.N. Committee on Economic, Social, and Cultural Rights on measures adopted and progress made in achieving the observance of the Covenant rights. The 18-member Committee, on which a U.S. expert could have a seat if elected, would examine this report and pose questions. The Committee would then formulate its general observations on how the United States might do better, if it concludes that the United States is not doing enough to realize the rights in the Covenant.
(4) Finally, the rights in the Covenant would become part of the Supreme Law of the Land; and the Judges in every State shall be bound thereby, according to Article VI, Clause 2 of the U.S. Constitution. Thus, in theory, anyone whose rights under the Covenant were violated would be able to bring a case before the courts. In practice, however, the courts could decide that the treaty is not the kind it can apply without implementing non-self-executing treaty legislation from Congress orand this is more likelythe Senate would add a reservation to the U.S. ratification excluding the possibility for citizens to invoke the Covenant before the courts of the United States.
Q: In addition to the legal ramifications of the Covenant, in what other ways can its provisions effectively be used to address social and economic concerns?
Whether or not persons whose economic, social, and cultural rights were not ensured could go to court, the Covenant still would articulate a legitimate standard to which social justice movements could refer to in holding the federal government accountable. The Covenant also can serve as a tool for planning insofar as it sets out the basic rights that cannot be denied in the process of seeking other social goals. It is widely acknowledged that integrating the human rights framework in the struggles to alleviate poverty, hunger, homelessness, and unequal educational opportunities empower individuals and communities to assert and claim their social and economic justice.
This information is included in educational materials PDHRE is preparing designed to bring learners understanding of economic, social, and cultural rights to the same level as civil and political rights.
The organization aims to foster an understanding of a holistic view of human rights as a comprehensive way of life and as a social contract that can inform the behavior and interrelation of state and non-state actors.
For information, contact PDHRE:
526 West 111th Street, Suite 4E
New York, NY USA 10025
web site: www.pdhre.org
Shulamith Koenig is the Executive Director of Peoples Decade for Human Rights Education (PDHRE).