SECTION 4 DEFINING RIGHTS AND OBLIGATIONS |
||||||||||||||||
MODULE 8DEFINING THE CONTENT OF ESC
RIGHTSPROBLEMS AND PROSPECTS
|
||||||||||||||||
The Purpose of Module 8The purpose of this module is to provide clarification on the process of defining the content of ESC rights. The module
Why Define Rights?The vague and indeterminate way in which ESC rights have historically been articulated continues to be one of the fundamental obstacles to further developing their content and to spelling out a framework for action that allows for their progressive realization. As a result of the relative inattention paid to ESC rights over the past several decades (with the notable exception of labor rights), the content and meaning of most ESC rights remain relatively ill-defined. This lack of clarity of content is often used as a rationale for not recognizing this set of rights as rights proper. What is not recognized or acknowledged in such situations, however, is that the greater precision as to the content of various civil and political rights has been developed over the decades and often centuries as the result of numerous public discussions, legislative debates and court decisions. In more recent decades, for example, the guarantees provided by article 7 of the International Covenant on Civil and Political Rights (ICCPR) have generated lengthy debates about what constitutes torture as opposed to cruel, inhuman or degrading treatment or punishment. The result of these varied discussions has been a greater clarity on what exactly constitutes the heinous violation called torture. Activists working to advance ESC rights may thus find themselves involved in the process of defining the content of these rights. Because the content derives from the right itself, the building block essential for understanding and defining the content of rights is the study of international standards and documents, national constitutions, as well as interpretations and analyses of these documents. [1] The Committee on Economic, Social and Cultural Rights (CESCR), for example, has issued a number of very important General Comments related to specific rights, which are essential for activists in this process. (See Module 3 for further discussion on General Comments.) While representing a client or investigating a case, activists and organizations may often have to undertake a study or compilation of existing resources, such as the General Comments, and research related topics, 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. Their 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 it is essential for the development of more precise understandings and greater protection of ESC rights at the national and international levels. Core Content and Minimum Core ContentThe CESCR, which has the responsibility for supervising and monitoring the implementation of the ICESCR, has had to confront this same dilemma. In considering reports from states parties regarding their implementation of the guarantees in the ICESCR, how was the committee to determine whether a state was in compliance or not? In the process of tackling this question, the committee developed a conceptual distinction with which activists should be familiarwhether or not they actively employ that distinction in their work. According to Limburg Principle No. 25, states parties to the Covenant have the obligation to guarantee respect for the minimum rights of survival for all, independent of available resources. [2] However, this obligation is rendered without effect to the extent that there is no standard for what constitutes this minimum extent of observance. A tool evolved by the committee was to develop a minimum threshold approach whereby certain minimum standards should be achieved by all states, irrespective of their economic situation. This approach is clearly seen in the committees General Comment 3 (see pp. 174-77). By adopting this approach, the committee believed it could avoid the problem of measuring progress against resource availability, of speculating as to alternative courses of action, or of acquiring evidence of state responsibility. In cases where significant numbers of people live in poverty and hunger, it is for the State to show that its failure to provide for the persons concerned was beyond its control. [3]
The core content of a human right refers to the set of guarantees that constitute the right. The core content of an ESC right has both universal and unique characteristics. The universal charac-teristics are those which apply to all rights. Nondiscrimination is one such universal char-acteristic. In addition, certain characteristics 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. [4] The minimum core content of a right is the intangible baseline level that must be guaranteed for all persons in all contexts. It indicates a minimum below which no government should perform, even in unfavorable conditions. Some elements of the core content may be limited in special circumstances, but the minimum core content establishes a basic minimum for the action of all governments. 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 persons 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. A Framework for Defining Rights
and Obligations
|
Concept |
Definition |
Example |
Core content of a right |
The specific individual en-titlements that make up a right |
In the area of health, the right to immunization a-gainst preventable epidemic or endemic diseases |
State obligation |
The responsibilities of the state to respect, protect, pro-mote and fulfill the entitle-ments under the right |
The state is to develop pol-icies and programs to meet obligations. In the case of the right to health, policies and programs of promotion, prevention, treatment and rehabilitation |
Obligation of conduct |
Obligation to undertake specific steps (acts or omis-sions) |
For example, developing immunization campaigns |
Obligation of result |
Obligation to obtain a parti-cular outcome |
Decrease in mortality from epidemic or endemic diseases |
Provea's Experience in Defining Minimum Content of the Right to HealthProvea is a Venezuelan NGO working since 1992 to promote the right to health, as its main area of work, in the context of its efforts to promote ESC rights. In order to improve its capacity for both promotion and education, and its policy and case advocacy work, Provea decided to undertake a systematic research project on the right to health. As a first step, an intensive bibliographical search was performed on the right to health. Most of the sources consulted either addressed specific aspects of the right, or treated it in an introductory or general manner. Finding that there was not enough material defining the right to health, Provea ventured to delineate a general conceptual framework for protecting the right to health. It wanted to develop an international perspective while responding to the legislative and political reality of Venezuela. To this end, international instruments and domestic provisions to protect this right were studied. More than forty organizations and individuals, Venezuelan and international, collaborated in this study. In the course of the work, Provea realized it had to define the minimum core content of the right to health, despite the intrinsic difficulties posed and the controversy this would entail. The following are some principles that formed the basis of Provea's work: Defining minimum core content
is a relatively unexplored area, but it
is necessary to arrive at an objective
definition of each right. Working from these elements, and taking as the starting point article 12 of the ICESCR, an initial effort was made to define the minimum core contents of the right to health.9 The effort to define core contents strengthened Provea's overall work in the area of protecting human rights. The process contributed to: strengthening the educational,
awareness-raising and promotional work,
on the contents of the right; |
The question of defining the core and minimum core contents of ESC rights is not without debate and controversy. Some activists believe that focusing on such definition can be counterproductive to activism. Others believe that such a focus is essential to effectiveness.
Some of the arguments against definition focus on the difficulty of establishing universally applicable standards. The CESCR itself has acknowledged the difficulty of defining the minimum core content of a right. With respect to the right to health, for example, it has stated that as the ideal of the human being is to attain the highest possible standard of living, it is not possible to fix a uniform minimum limit below which a given State is considered to be in breach of its health-related obligations. However, a member of the committee also said, In contrast, it is feasible to determine, mindful of its progressive nature, whether there have been advances, setbacks, or stagnation in the enjoyment of the right to health. 10
On the other hand, several authors maintain the need to define the minimum core content of each right as a way to identify what it is that the right confers upon those who enjoy the entitlement, and to help identify the specific obligations that a state assumes by recognizing those contents. One author has said: Each right must therefore give rise to an absolute min-imum entitlement, in the absence of which a state party is to be considered to be in violation of its obligations.11 Another author defines the core content of rights as a limit beyond which activities limiting fundamental rights and public freedoms cannot be carried out.12
Some who advocate for defining minimum core content argue for setting a universal standard for the enjoyment of some rightsfor example, setting the number of square meters necessary for the guarantee of adequate housing or the number of calories necessary for the right to food. However, those arguing against defining core and minimum core content focus on the difficulty of establishing such universally applicable standards. Others point out that this could be construed as operating to limit the overall guarantee of rights, by establishing a defined standard of compliance. Thus, it may lend itself to the argument that everything that is excluded from that content is not within the right.
Some activists maintain that the definition of minimum core content of a right is necessary to ensure the justiciability of such a right. Establishing such a framework ensures a uniform baseline that must be respected, even by those states with insufficient economic resources,13 to promote realization of the right and to guarantee equity in the distribution of available resources.
Those who are not in favor of defining minimum core content point out that often the minimum core gets associated with those elements that cannot be derogated from or that require immediate implementation. More importantly, minimum core content can also be seen as elements of a right that are justiciable. The danger is that courts may inappropriately latch onto the notion of minimum core content as being the content of an ESC right that is justiciable, and leave the other components to government policies.
Focusing on minimum core content also tends to ignore violations of ESC rights in affluent countries, where the issue is usually not a failure to meet minimum core obligations, but rather to fulfill the obligation to apply the maximum of available resources.
In addition, some advocates oppose defining minimum core content, since doing this may tend to focus on the negative or civil right components of ESC rights as the minimum. For example, with regard to the right to housing, the core may shift to focusing on the right to due process while conducting evictionsthus, the stress would be on civil rights issues. Consequently, there is a danger that defining the core content may not contribute to developing substantive aspects of ESC rights.
However, despite all these debates, there is a general consensus that core content simply means the key components of the right. It is accepted that those concerned with ESC rights should play a role in developing an international consensus on the key components of rights.
Authors: This module is based on a paper prepared by Ligia Bolívar and Enrique González
USING MODULE 8 IN A TRAINING PROGRAM
1. International Human Rights Internship Program, Ripple in Still Water: Reflections by Activists on Local- and National-Level Work on Economic, Social and Cultural Rights (Washington, D.C.: International Human Rights Internship Program, 1997).
2. See Module 3 for a further description of and cite to the Limburg Principles.
3. Matthew C.R. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on Its Development (Oxford: Clarendon Press, 1995), 141-43.
4. Provea, Health as a Right: Framework for National and International Protection of the Human Rights of Health (Caracas, 1996), 39.
5. The content of the rights protected by a given convention may be subject to a progressive definition. In Pedro Nikken, La protección internacional de los derechos humanos: Su desarrollo progresivo, IIDH, Ed. Cívitas (Madrid, 1987), 117.
6. To cite an example from civil rights: The fact that the death penalty exists in more than 90 states worldwide does not mean that their citizens do not have the right to life. What it does mean is that they live under a legal order that is in violation of international human rights law. This does not strip them of their entitlement to that right, since there is a supranational order that enshrines it.
7. To maintain that a specific right is limited to what is agreed upon in international treaties is equivalent to understanding that legislation cannot be perfected. Imagine what would have happened had this position been advocated in 1946, before the adoption of the UDHR.
8. In this regard, Provea shares the vision put forth by Special Rapporteur Danilo Türk, who, when referring in his final report on the realization of ESC rights to the barriers that illustrate the great distance between the world aspiration for these rights and their recognition, on the one hand, and their effective observance, on the other defends the need to overcome purely legalistic attitudes with respect to ESC rights. See the Final Report of the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, Danilo Türk, The full realization of economic, social and cultural rights, UN ESCOR, Commission on Human Rights, Forty-eighth Sess., Agenda Item 8, UN Doc. E/CN.4/Sub.2/1992/16 (1992).
9. The results of the overall research project are available in Spanish. See Provea, El derecho a la salud: Marco nacional e internacional de protección del derecho humano (Caracas, 1996).
10. Juan Avarez Vita, Discussion note, in CESCR: Report on the ninth session, E/C.12/1993/19, p. 63. Vita is a former member of the CESCR.
11. Philip Alston, Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social, and Cultural Rights, Human Rights Quarterly 9, (1987). 352-53. Alston is a former chairperson of the CESCR.
12. Carlos Ayala, Consideraciones sobre el desarrollo legislativo inadecuado de derechos y garantías constitucionales, in Constitución y Reforma: Un Proyecto de Estado social y democrático de Derecho (Caracas, 1991). Ayala is a former chairperson of the Inter-American Commission on Human Rights.
13. Every State that has accepted legal obligations . . . agrees that under all circumstances, including periods characterized by resource scarcity, basic minimum obligations and corresponding essential rights remain in place. Commentary to the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Guideline Nos. 9 and 10, Human Rights Quarterly 20, no. 3 (August 1998): 717.