Seminar By Professor Paul Hunt “Taking Economic, Social and Cultural Rights Seriously”
Seminar By Professor Paul Hunt
Special Rapporteur on the right to the highest attainable standard of
health, 2002-2008; University of Waikato, New Zealand; University of
Friday, 9th January 2009
few years ago I gave a talk in Ireland on economic, social and cultural
rights. I explained that these fundamental human rights place binding
legal obligations on the Irish Government. At the end of my remarks, we
had comments and questions. The first speaker said that she was very
surprised — never before had she heard about these binding economic,
social and cultural rights. They must be, she said, “the best kept
secret in Ireland.”
Perhaps they are the best kept secret in Japan, too, I am not sure.
any event, I welcome the opportunity to make a few introductory remarks
about these issues here today. I warmly thank the organisers for
inviting me here. And I warmly congratulate the non-governmental
organisation – Human Rights Now – for taking a leadership role on human
rights in Japan, and for including economic, social and cultural rights in its activities.
last few years have seen some remarkable developments in the field of
international human rights. For some decades, the international
community focussed on classic civil and political rights – the
prohibition against inhumane treatment, the right to a fair trial,
freedom of speech, and so on. But, since the late 1990s, the
international community has begun to devote more attention to economic,
social and cultural rights – the rights to education, food and shelter,
as well as the right to the highest attainable standard of physical and
Later, if you wish, we can discuss why this change took place when it did.
the 1990s, for example, the Council of Europe established a complaints
process for economic, social and cultural rights that is beginning to
generate some interesting jurisprudence.2 The first case led to a
finding that Portugal was taking inadequate measures to combat child
The human rights system that covers the Americas is
also taking economic, social and cultural rights more seriously. In a
recent case, the Inter-American Commission on Human Rights – which is
based in WashingtonDC – held that El Salvador was obliged to provide antiretroviral medication to a group of petitioners with HIV/AIDS.4
same trend is apparent in the African regional human rights system. For
example, the African Commission on Human and Peoples’ Rights found a
breach of the right to health and a safe environment where the
extraction of oil reserves had contaminated the environment damaging
the health of local communities.5
This renewed attention to
economic, social and cultural rights is not confined to regional human
rights systems, it also extends to the human rights system of the
United Nations. For example, the UN has recently appointed a number of
independent experts – Special Rapporteurs – on the rights to education,
housing, food and health, to help States better promote and protect
these rights.6 Before 1998, there were numerous Special Rapporteurs on
civil and political rights – but not one on an economic, social or
Moreover, this trend is not confined to the
regional and UN human rights systems – it encompasses some national
A couple of years ago, Norway
incorporated into its domestic law the UN’s main treaty on economic,
social and cultural rights. South Africa has placed economic, social
and cultural rights in its Constitution and rendered them justiciable,
generating some important case law on the rights to shelter and
health.7 The Indian courts continue to adjudicate on economic, social
and cultural rights by reading them into classic civil and political
rights.8 Finland recently adopted an interesting approach: it
constitutionalised some economic, social and cultural rights in brief
one-sentence formulations with the explicit intention of elaborating
these rights in more detailed legislation.9 In the United Kingdom, some
judges are beginning to interpret the new Human Rights Act – which is a
classic catalogue of civil and political rights – in such a way that
they tend to reinforce elements of economic, social and cultural
There are an especially large number of cases on
economic, social and cultural rights being decided by national courts
in Latin America. Just to give one example, a few months ago the
Constitutional Court of Colombia ordered that the country’s health
system be restructured by way of a transparent, participatory process
based on up-to-date health information. The court’s judgement is about
400 pages long. Much of it is based on the right to health.
Civil society is also giving more attention than ever before to economic, social and cultural rights.
Today, in every region of the world, including in the United States,
civil society groups are organising around economic, social and
cultural rights. They have understood that all human rights – civil,
political, economic, social and cultural – are tools for tackling
unfairness and disadvantage. Long-established international human
rights organisations, like Amnesty International and Human Rights
Watch, which have historically focussed on civil and political rights,
have recently added some elements of economic, social and cultural
rights to their agendas. This year, for the first time, Amnesty will
launch a global campaign on maternal mortality as a human rights issue.
my visits overseas, I am sometimes astonished by a civil society’s
fluency and familiarity with economic, social and cultural rights. In
some countries, civil society groups actively organise around these
human rights. In Peru, they recently demonstrated in the streets demanding that the trade agreement with the United States
must not jeopardise access to essential medicines for those living in
poverty. Access to essential drugs became a significant issue in the
last presidential elections in Peru.
A British non-governmental organisation has recently published the
first book-length audit of economic and social rights in the United Kingdom.
course this trend – the trend to take economic, social and cultural
rights more seriously – is contested and uneven. But in my view the
general trend is unmistakeable. Economic, social and cultural rights
are on a rising tide.
So Human Rights Now is in good, global company.
few years ago, I spent quite a bit of time arguing that economic,
social and cultural rights are indeed fundamental human rights.
used to point out that these rights are recognised as fundamental human
rights in a host of binding international treaties – and that the
rights to basic shelter and health protection are just as important to
a our well-being and dignity as the rights to freedom of assembly and
expression – and that all these human rights are actually interlocking
and mutually reinforcing.
Today, I rarely have to use those arguments.
few years ago I also spent quite a bit of time arguing that there is
nothing intrinsically non-justiciable about economic, social and
cultural rights. A society is free to decide what it wants its courts
to adjudicate upon. If a society wishes its courts to adjudicate upon
issues of detention, expression, privacy, shelter and the adequacy of
health services – there is no jurisprudential reason why it should not.
It might not wish, for political reasons, to give some of those tasks
to the courts – but that is entirely different from saying that those
issues are somehow incapable of judicial determination.
these arguments need less attention – mainly because so many reputable
tribunals in so many jurisdictions adjudicate, on a regular basis,
across the whole range of human rights, including economic, social and
cultural rights. The record speaks for itself.
Can I briefly mention one sleight of hand – one trick – that is sometimes used when discussing these issues?
argument goes – it is appropriate for a court to adjudicate on, say,
inhumane treatment because it can simply tell those responsible to stop
the abusive treatment.
And the argument continues – it is
inappropriate for a court to adjudicate on, say, shelter because this
may require the court to make an order that has budgetary implications
and that is the job of the legislature, not the judiciary.
In my view, this argument is misleading.
is true, inhumane treatment sometimes requires a court to simply say –
‘no, stop that mistreatment’. But it also sometimes requires a court to
make an order that has budgetary implications – the court may order,
for example, that conditions of detention be improved, and that can be
a costly business.
As for shelter, sometimes it also requires a
court to simply say – ‘no, you cannot evict that tenant’, or ‘stop that
harassment’. And sometimes it will also require a court to make an
order that has budgetary implications – it may order, for example, that
a homeless person is offered a bed in a shelter.
the prohibition against inhumane treatment and the right to adequate
shelter consist of various elements – some of which have budgetary
implications and some do not.
The sleight of hand – the trick –
takes place when one element of one right is compared with a different
element of the other right.
In other words, the element of
inhumane treatment that does not have budgetary implications is
compared with the element of shelter that has budgetary implications.
And then the conclusion is erroneously reached that inhumane treatment
is suitable for judicial scrutiny, while shelter is not. And this
conclusion is then generalised from inhumane treatment to all civil and
political rights – and from shelter to all economic, social and
Clearly, this logic is flawed.
plea is simple: compare like with like. Not apples with oranges. And
not one element of a civil and political right with a different element
of an economic, social and cultural right.
However, I think it
is also unhelpful and misleading when some advocates of economic,
social and cultural rights argue that economic, social and cultural
rights and civil and political rights are identical and should be
approached in precisely the same way. It seems to me that is too
We must recognise one inescapable difference between
these two sets of rights. Over centuries, civil and political rights
have generated a deep and dense jurisprudence. The same cannot be said
for economic, social and cultural rights. Yes, they too derive from the
inherent well-being and dignity of our shared humanity. Yes, they too
are enshrined in legally binding international treaties. Yes, they too
are justiciable. But it seems to me we have to recognise that their
jurisprudence is shallower than that of civil and political rights –
and very naturally this may lead to legitimate questions and doubts
that should not be brushed aside, but taken seriously.
argued earlier, the jurisprudence of economic, social and cultural
rights is deepening by the year – but it remains shallower than that of
civil and political rights.
There are other challenges, too.
Broadly speaking, there are two ways of advancing human rights, including economic, social and cultural rights.
way is via the courts and tribunals (the ‘judicial’ approach). Another
approach is by bringing human rights to bear upon policy-making
processes so that policies are put in place that promote and protect
human rights (the ‘policy’ approach). Of course, the two approaches are
intimately related and mutually reinforcing. Nonetheless, the
distinction between them is important because the ‘policy’ approach
opens up challenging new possibilities for the realisation of human
Lawyers have played an indispensable role in developing
the standards that today constitute international human rights law.
Naturally, when it comes to the ‘judicial’ and ‘policy’ approaches,
some lawyers are professionally drawn to the ‘judicial’ approach. And,
of course, this approach has a vital role to play.
to the ‘judicial’ approach, however, it is also vital that human rights
are brought to bear upon all relevant policy-making processes,
including those for the reduction and elimination of poverty.
the ‘policy’ approach depends upon techniques and tools that are not
usually in a lawyer’s brief case or repertoire. Also, it demands close
cooperation amongst a range of disciplines and policy experts. Also,
the ‘policy’ approach demands vigilant monitoring and accountability,
but the accountability does not have to be judicial. It could, for
example, take the form of publicly available rigorous human rights
impact assessments that check whether or not the relevant policy has
delivered positive human rights outcomes consistent with the state’s
What are the implications of a policy approach?
you go to a Minister of Health and urge him or her to introduce
policies that reflect the Government’s international right to health
obligations and the Minister asks how that is to be done – if your
reply only draws upon the traditional human rights skills and
techniques, such as ‘naming and shaming’, letter writing campaigns,
threatening the Government with test cases, and uttering slogans –
frankly, the Minister will show you the door, and rightly so.
judicial approach and the policy approach are both vital – but the
policy approach demands new human rights skills, techniques and
approaches that will enable us to engage with local, national and
international policy makers. For example, if we are serous about
monitoring the progressive realisation of economic, social and cultural
rights, we have no alternative but to get to grips with indicators and
benchmarks.11 If we are serious about integrating human rights into
policy making, sooner or later we will have to devise a methodology for
human rights impact assessments, namely a tool that enables a
government to assess the likely impact of a proposed policy on the
enjoyment of (say) the right to health, especially for those who are
living in poverty.12
We should not be discouraged by this but
take heart because it is a sign that the human rights movement
continues to develop and mature.
Let’s briefly consider two of these new skills, techniques or tools.
First, indicators and benchmarks.
right to health is subject to progressive realization – a State is not
expected to wave a magic wand and deliver, say, the right to health for
everyone, immediately, overnight.
Sexual and reproductive health
are integral elements of the right to health. So we need a way of
measuring whether or not a State is progressively realizing the right
to health, including sexual and reproductive health. There are many
relevant indicators of sexual and reproductive health, including the
proportion of births attended by skilled health personnel. So we could
select this indicator as one to measure the progressive realization of
sexual and reproductive health rights.
Let’s assume that in a
particular country the national data show that the proportion of births
attended by skilled health personnel is 60 per cent. When disaggregated
on the basis of rural/urban, data may reveal that the proportion is 70
per cent in urban centres, but only 50 per cent in rural areas.
further disaggregated on the basis of ethnicity, data may also show
that coverage in the rural areas is uneven: the dominant ethnic group
enjoys a coverage of 70 per cent but the minority ethnic group only 40
per cent. This highlights the crucial importance of disaggregating data
as a means of identifying de facto discrimination. When disaggregated,
the indicator confirms that women members of the ethnic minority in
rural areas are especially disadvantaged and require particular
The State may decide to aim for a uniform national
coverage of 70 per cent, in both the urban and rural areas and for all
ethnic groups, in five years’ time. So the indicator is the proportion
of births attended by skilled health personnel and the benchmark or
target is 70 per cent. The State has to formulate and implement
policies and programmes that are designed to reach the benchmark of 70
per cent in five years. The data show that the policies and programmes
will have to be specially designed to reach the minority ethnic group
living in the rural areas.
Annual progress towards the benchmark
or target should be monitored, in light of which annual policy
adjustments might be required. At the end of the five-year period, a
monitoring and accountability mechanism will have to ascertain whether
or not the 70 per cent benchmark has been reached in urban and rural
areas and for all ethnic groups. If it has, the State will set a more
ambitious benchmark for the next five-year period, consistent with its
obligation to realize progressively the right to health. But if the 70
per cent benchmark for all has not been reached then the reasons should
be identified and remedial action taken.
Importantly, a failure
to reach a benchmark does not necessarily mean that the State is in
breach of its international right to health obligations. The State
might have fallen short of its benchmark for reasons beyond its
control. However, if the monitoring and accountability mechanism
reveals that the 70 per cent benchmark was not reached because of, for
example, corruption in the health sector, then it will probably follow
that the State has failed to comply with its international right to
International assistance and cooperation is
an important element of the right to health. Donors have a
responsibility to provide financial and other support for the policies
and programmes of developing countries regarding, for example, sexual
and reproductive health. Also, donors should be held to account in
relation to the discharge of their responsibility. So, in relation to
the example I have just sketched, indicators are needed to measure what
donors have done to help the State deliver sound sexual and
reproductive health policies. Also, a monitoring and accountability
mechanism is needed to address the question: has the donor community
done all it reasonably can to help the State deliver sound sexual and
reproductive health policies, enabling it to reach its benchmark of 70
Of course, these issues – indicators and
accountability mechanisms for the donor community – raise challenging
questions. Nonetheless, indicators and accountability mechanisms that
focus exclusively on the responsibilities of developing countries and
do not also include the responsibilities of the donor community are
unfair, flawed and lack credibility.
In summary, a disaggregated
indicator, such as the proportion of births attended by skilled health
personnel, when used with benchmarks, can help us identify which
policies are working and which are not. Moreover, it can also help to
hold a State to account in relation to its responsibilities arising
from the right to health. Of course, one indicator, even when
disaggregated, cannot possibly capture all the dimensions that are
important from the right to health perspective. For this, other
indicators are needed. Nonetheless, this illustration shows how a
disaggregated indicator, when used with a benchmark, can provide some
useful information about the progressive realization of the right to
the highest attainable standard of health.
Very much more
briefly, let’s look at one other new skill, technique or tool that we
need if we are to advance economic, social and cultural rights.
a State introduces a new proposal it must ensure that the initiative is
consistent with its existing national and international legal
obligations, including those relating to human rights.
these circumstances, there is a growing demand for governments to carry
out human rights impact assessments prior to adopting and implementing
new policies, programmes and projects. To date, however, relatively
little work has been done to develop methodologies and tools to help
governments undertake human rights impact assessments.
briefly, human rights impact assessment is the process of predicting
the potential consequences of a proposed policy, program or project on
the enjoyment of human rights. The objective of the assessment is to
inform decision-makers and the people likely to be affected so that
they can improve the proposal to reduce potential negative effects and
increase positive ones. Although human rights impact assessment is a
relatively recent concept, other forms of impact assessment – such as
environmental impact assessments and social impact assessments – are
now well-established and routinely undertaken in many countries to
evaluate proposed policies, programs and projects. Similarly, such
initiatives, prior to being adopted and implemented, should be assessed
for their impact on human rights.
Human rights impact
assessments are an aid to equitable, inclusive, robust and sustainable
policy making. They are one way of ensuring that – for example – the
right to health – especially of marginalized groups, including the poor
– is given due weight in all national and international policy-making
processes. From the right to health perspective, an impact assessment
methodology is a key feature of a health system. Without such a
methodology, how will a government know whether or not its proposed
policies, programs and projects are on target to progressively realise
the right to the highest attainable standard of health, as required by
international human rights law?
A colleague and I have tried to
develop a human rights impact assessment methodology. Others are also
working in this area. More thought has to be given to this new tool – a
tool that is needed if we are to defend human rights, including
economic, social and cultural rights.
Again, I thank the
organisers of this meeting. Human Rights Now is providing an invaluable
environment for learning about international human rights law and
practice, as well as the experiences of other national jurisdictions.
It embraces all human rights – civil, political, economic, social and
cultural rights. An organisation of the future, Human Rights Now richly
deserves our sustained support.