{"id":17,"date":"2009-01-09T09:41:35","date_gmt":"2009-01-09T00:41:35","guid":{"rendered":"http:\/\/test.hrn.or.jp\/?p=17"},"modified":"2023-10-25T09:44:30","modified_gmt":"2023-10-25T00:44:30","slug":"hunt-rights-seminar","status":"publish","type":"post","link":"https:\/\/hrn.or.jp\/eng\/news\/2009\/01\/09\/hunt-rights-seminar\/","title":{"rendered":"Seminar By Professor Paul Hunt “Taking Economic, Social and Cultural Rights Seriously”"},"content":{"rendered":"

Seminar By Professor Paul Hunt
\n(UN
\nSpecial Rapporteur on the right to the highest attainable standard of
\nhealth, 2002-2008; University of Waikato, New Zealand; University of
\nEssex, UK)<\/span><\/span><\/span><\/p>\n

Friday, 9th January 2009<\/p>\n

Tokyo, Japan<\/p>\n

A
\nfew years ago I gave a talk in Ireland on economic, social and cultural
\nrights. I explained that these fundamental human rights place binding
\nlegal obligations on the Irish Government. At the end of my remarks, we
\nhad comments and questions. The first speaker said that she was very
\nsurprised — never before had she heard about these binding economic,
\nsocial and cultural rights. They must be, she said, “the best kept
\nsecret in Ireland.”<\/p>\n

Perhaps they are the best kept secret in Japan, too, I am not sure.<\/p>\n

In
\nany event, I welcome the opportunity to make a few introductory remarks
\nabout these issues here today. I warmly thank the organisers for
\ninviting me here. And I warmly congratulate the non-governmental
\norganisation – Human Rights Now – for taking a leadership role on human
\nrights in Japan, and for including economic, social and cultural rights in its activities.<\/p>\n

The
\nlast few years have seen some remarkable developments in the field of
\ninternational human rights. For some decades, the international
\ncommunity focussed on classic civil and political rights – the
\nprohibition against inhumane treatment, the right to a fair trial,
\nfreedom of speech, and so on. But, since the late 1990s, the
\ninternational community has begun to devote more attention to economic,
\nsocial and cultural rights – the rights to education, food and shelter,
\nas well as the right to the highest attainable standard of physical and
\nmental health.1
\nLater, if you wish, we can discuss why this change took place when it did.<\/p>\n

In
\nthe 1990s, for example, the Council of Europe established a complaints
\nprocess for economic, social and cultural rights that is beginning to
\ngenerate some interesting jurisprudence.2 The first case led to a
\nfinding that Portugal was taking inadequate measures to combat child
\nlabour.3<\/p>\n

The human rights system that covers the Americas is
\nalso taking economic, social and cultural rights more seriously. In a
\nrecent case, the Inter-American Commission on Human Rights – which is
\nbased in WashingtonDC – held that El Salvador was obliged to provide antiretroviral medication to a group of petitioners with HIV\/AIDS.4<\/p>\n

The
\nsame trend is apparent in the African regional human rights system. For
\nexample, the African Commission on Human and Peoples’ Rights found a
\nbreach of the right to health and a safe environment where the
\nextraction of oil reserves had contaminated the environment damaging
\nthe health of local communities.5<\/p>\n

This renewed attention to
\neconomic, social and cultural rights is not confined to regional human
\nrights systems, it also extends to the human rights system of the
\nUnited Nations. For example, the UN has recently appointed a number of
\nindependent experts – Special Rapporteurs – on the rights to education,
\nhousing, food and health, to help States better promote and protect
\nthese rights.6 Before 1998, there were numerous Special Rapporteurs on
\ncivil and political rights – but not one on an economic, social or
\ncultural right.<\/p>\n

Moreover, this trend is not confined to the
\nregional and UN human rights systems – it encompasses some national
\njurisdictions, too.<\/p>\n

A couple of years ago, Norway
\nincorporated into its domestic law the UN’s main treaty on economic,
\nsocial and cultural rights. South Africa has placed economic, social
\nand cultural rights in its Constitution and rendered them justiciable,
\ngenerating some important case law on the rights to shelter and
\nhealth.7 The Indian courts continue to adjudicate on economic, social
\nand cultural rights by reading them into classic civil and political
\nrights.8 Finland recently adopted an interesting approach: it
\nconstitutionalised some economic, social and cultural rights in brief
\none-sentence formulations with the explicit intention of elaborating
\nthese rights in more detailed legislation.9 In the United Kingdom, some
\njudges are beginning to interpret the new Human Rights Act – which is a
\nclassic catalogue of civil and political rights – in such a way that
\nthey tend to reinforce elements of economic, social and cultural
\nrights.10<\/p>\n

There are an especially large number of cases on
\neconomic, social and cultural rights being decided by national courts
\nin Latin America. Just to give one example, a few months ago the
\nConstitutional Court of Colombia ordered that the country’s health
\nsystem be restructured by way of a transparent, participatory process
\nbased on up-to-date health information. The court’s judgement is about
\n400 pages long. Much of it is based on the right to health.<\/p>\n

Civil society is also giving more attention than ever before to economic, social and cultural rights.<\/p>\n

Today, in every region of the world, including in the United States,
\ncivil society groups are organising around economic, social and
\ncultural rights. They have understood that all human rights – civil,
\npolitical, economic, social and cultural – are tools for tackling
\nunfairness and disadvantage. Long-established international human
\nrights organisations, like Amnesty International and Human Rights
\nWatch, which have historically focussed on civil and political rights,
\nhave recently added some elements of economic, social and cultural
\nrights to their agendas. This year, for the first time, Amnesty will
\nlaunch a global campaign on maternal mortality as a human rights issue.<\/p>\n

On
\nmy visits overseas, I am sometimes astonished by a civil society’s
\nfluency and familiarity with economic, social and cultural rights. In
\nsome countries, civil society groups actively organise around these
\nhuman rights. In Peru, they recently demonstrated in the streets demanding that the trade agreement with the United States
\nmust not jeopardise access to essential medicines for those living in
\npoverty. Access to essential drugs became a significant issue in the
\nlast presidential elections in Peru.
\nA British non-governmental organisation has recently published the
\nfirst book-length audit of economic and social rights in the United Kingdom.<\/p>\n

Of
\ncourse this trend – the trend to take economic, social and cultural
\nrights more seriously – is contested and uneven. But in my view the
\ngeneral trend is unmistakeable. Economic, social and cultural rights
\nare on a rising tide.<\/p>\n

So Human Rights Now is in good, global company.<\/p>\n

A
\nfew years ago, I spent quite a bit of time arguing that economic,
\nsocial and cultural rights are indeed fundamental human rights.<\/p>\n

I
\nused to point out that these rights are recognised as fundamental human
\nrights in a host of binding international treaties – and that the
\nrights to basic shelter and health protection are just as important to
\na our well-being and dignity as the rights to freedom of assembly and
\nexpression – and that all these human rights are actually interlocking
\nand mutually reinforcing.<\/p>\n

Today, I rarely have to use those arguments.<\/p>\n

A
\nfew years ago I also spent quite a bit of time arguing that there is
\nnothing intrinsically non-justiciable about economic, social and
\ncultural rights. A society is free to decide what it wants its courts
\nto adjudicate upon. If a society wishes its courts to adjudicate upon
\nissues of detention, expression, privacy, shelter and the adequacy of
\nhealth services – there is no jurisprudential reason why it should not.
\nIt might not wish, for political reasons, to give some of those tasks
\nto the courts – but that is entirely different from saying that those
\nissues are somehow incapable of judicial determination.<\/p>\n

Today,
\nthese arguments need less attention – mainly because so many reputable
\ntribunals in so many jurisdictions adjudicate, on a regular basis,
\nacross the whole range of human rights, including economic, social and
\ncultural rights. The record speaks for itself.<\/p>\n

Can I briefly mention one sleight of hand – one trick – that is sometimes used when discussing these issues?<\/p>\n

The
\nargument goes – it is appropriate for a court to adjudicate on, say,
\ninhumane treatment because it can simply tell those responsible to stop
\nthe abusive treatment.<\/p>\n

And the argument continues – it is
\ninappropriate for a court to adjudicate on, say, shelter because this
\nmay require the court to make an order that has budgetary implications
\nand that is the job of the legislature, not the judiciary.<\/p>\n

In my view, this argument is misleading.<\/p>\n

It
\nis true, inhumane treatment sometimes requires a court to simply say –
\n‘no, stop that mistreatment’. But it also sometimes requires a court to
\nmake an order that has budgetary implications – the court may order,
\nfor example, that conditions of detention be improved, and that can be
\na costly business.<\/p>\n

As for shelter, sometimes it also requires a
\ncourt to simply say – ‘no, you cannot evict that tenant’, or ‘stop that
\nharassment’. And sometimes it will also require a court to make an
\norder that has budgetary implications – it may order, for example, that
\na homeless person is offered a bed in a shelter.<\/p>\n

Crucially, both
\nthe prohibition against inhumane treatment and the right to adequate
\nshelter consist of various elements – some of which have budgetary
\nimplications and some do not.<\/p>\n

The sleight of hand – the trick –
\ntakes place when one element of one right is compared with a different
\nelement of the other right.<\/p>\n

In other words, the element of
\ninhumane treatment that does not have budgetary implications is
\ncompared with the element of shelter that has budgetary implications.
\nAnd then the conclusion is erroneously reached that inhumane treatment
\nis suitable for judicial scrutiny, while shelter is not. And this
\nconclusion is then generalised from inhumane treatment to all civil and
\npolitical rights – and from shelter to all economic, social and
\ncultural rights.<\/p>\n

Clearly, this logic is flawed.<\/p>\n

So my
\nplea is simple: compare like with like. Not apples with oranges. And
\nnot one element of a civil and political right with a different element
\nof an economic, social and cultural right.<\/p>\n

However, I think it
\nis also unhelpful and misleading when some advocates of economic,
\nsocial and cultural rights argue that economic, social and cultural
\nrights and civil and political rights are identical and should be
\napproached in precisely the same way. It seems to me that is too
\nsimplistic.<\/p>\n

We must recognise one inescapable difference between
\nthese two sets of rights. Over centuries, civil and political rights
\nhave generated a deep and dense jurisprudence. The same cannot be said
\nfor economic, social and cultural rights. Yes, they too derive from the
\ninherent well-being and dignity of our shared humanity. Yes, they too
\nare enshrined in legally binding international treaties. Yes, they too
\nare justiciable. But it seems to me we have to recognise that their
\njurisprudence is shallower than that of civil and political rights –
\nand very naturally this may lead to legitimate questions and doubts
\nthat should not be brushed aside, but taken seriously.<\/p>\n

As I
\nargued earlier, the jurisprudence of economic, social and cultural
\nrights is deepening by the year – but it remains shallower than that of
\ncivil and political rights.<\/p>\n

There are other challenges, too.<\/p>\n

Broadly speaking, there are two ways of advancing human rights, including economic, social and cultural rights.<\/p>\n

One
\nway is via the courts and tribunals (the ‘judicial’ approach). Another
\napproach is by bringing human rights to bear upon policy-making
\nprocesses so that policies are put in place that promote and protect
\nhuman rights (the ‘policy’ approach). Of course, the two approaches are
\nintimately related and mutually reinforcing. Nonetheless, the
\ndistinction between them is important because the ‘policy’ approach
\nopens up challenging new possibilities for the realisation of human
\nrights.<\/p>\n

Lawyers have played an indispensable role in developing
\nthe standards that today constitute international human rights law.
\nNaturally, when it comes to the ‘judicial’ and ‘policy’ approaches,
\nsome lawyers are professionally drawn to the ‘judicial’ approach. And,
\nof course, this approach has a vital role to play.<\/p>\n

In addition
\nto the ‘judicial’ approach, however, it is also vital that human rights
\nare brought to bear upon all relevant policy-making processes,
\nincluding those for the reduction and elimination of poverty.<\/p>\n

Significantly,
\nthe ‘policy’ approach depends upon techniques and tools that are not
\nusually in a lawyer’s brief case or repertoire. Also, it demands close
\ncooperation amongst a range of disciplines and policy experts. Also,
\nthe ‘policy’ approach demands vigilant monitoring and accountability,
\nbut the accountability does not have to be judicial. It could, for
\nexample, take the form of publicly available rigorous human rights
\nimpact assessments that check whether or not the relevant policy has
\ndelivered positive human rights outcomes consistent with the state’s
\nlegal commitments.<\/p>\n

What are the implications of a policy approach?<\/p>\n

If
\nyou go to a Minister of Health and urge him or her to introduce
\npolicies that reflect the Government’s international right to health
\nobligations and the Minister asks how that is to be done – if your
\nreply only draws upon the traditional human rights skills and
\ntechniques, such as ‘naming and shaming’, letter writing campaigns,
\nthreatening the Government with test cases, and uttering slogans –
\nfrankly, the Minister will show you the door, and rightly so.<\/p>\n

The
\njudicial approach and the policy approach are both vital – but the
\npolicy approach demands new human rights skills, techniques and
\napproaches that will enable us to engage with local, national and
\ninternational policy makers. For example, if we are serous about
\nmonitoring the progressive realisation of economic, social and cultural
\nrights, we have no alternative but to get to grips with indicators and
\nbenchmarks.11 If we are serious about integrating human rights into
\npolicy making, sooner or later we will have to devise a methodology for
\nhuman rights impact assessments, namely a tool that enables a
\ngovernment to assess the likely impact of a proposed policy on the
\nenjoyment of (say) the right to health, especially for those who are
\nliving in poverty.12<\/p>\n

We should not be discouraged by this but
\ntake heart because it is a sign that the human rights movement
\ncontinues to develop and mature.<\/p>\n

Let’s briefly consider two of these new skills, techniques or tools.<\/p>\n

First, indicators and benchmarks.<\/p>\n

The
\nright to health is subject to progressive realization – a State is not
\nexpected to wave a magic wand and deliver, say, the right to health for
\neveryone, immediately, overnight.<\/p>\n

Sexual and reproductive health
\nare integral elements of the right to health. So we need a way of
\nmeasuring whether or not a State is progressively realizing the right
\nto health, including sexual and reproductive health. There are many
\nrelevant indicators of sexual and reproductive health, including the
\nproportion of births attended by skilled health personnel. So we could
\nselect this indicator as one to measure the progressive realization of
\nsexual and reproductive health rights.<\/p>\n

Let’s assume that in a
\nparticular country the national data show that the proportion of births
\nattended by skilled health personnel is 60 per cent. When disaggregated
\non the basis of rural\/urban, data may reveal that the proportion is 70
\nper cent in urban centres, but only 50 per cent in rural areas.<\/p>\n

When
\nfurther disaggregated on the basis of ethnicity, data may also show
\nthat coverage in the rural areas is uneven: the dominant ethnic group
\nenjoys a coverage of 70 per cent but the minority ethnic group only 40
\nper cent. This highlights the crucial importance of disaggregating data
\nas a means of identifying de facto discrimination. When disaggregated,
\nthe indicator confirms that women members of the ethnic minority in
\nrural areas are especially disadvantaged and require particular
\nattention.<\/p>\n

The State may decide to aim for a uniform national
\ncoverage of 70 per cent, in both the urban and rural areas and for all
\nethnic groups, in five years’ time. So the indicator is the proportion
\nof births attended by skilled health personnel and the benchmark or
\ntarget is 70 per cent. The State has to formulate and implement
\npolicies and programmes that are designed to reach the benchmark of 70
\nper cent in five years. The data show that the policies and programmes
\nwill have to be specially designed to reach the minority ethnic group
\nliving in the rural areas.<\/p>\n

Annual progress towards the benchmark
\nor target should be monitored, in light of which annual policy
\nadjustments might be required. At the end of the five-year period, a
\nmonitoring and accountability mechanism will have to ascertain whether
\nor not the 70 per cent benchmark has been reached in urban and rural
\nareas and for all ethnic groups. If it has, the State will set a more
\nambitious benchmark for the next five-year period, consistent with its
\nobligation to realize progressively the right to health. But if the 70
\nper cent benchmark for all has not been reached then the reasons should
\nbe identified and remedial action taken.<\/p>\n

Importantly, a failure
\nto reach a benchmark does not necessarily mean that the State is in
\nbreach of its international right to health obligations. The State
\nmight have fallen short of its benchmark for reasons beyond its
\ncontrol. However, if the monitoring and accountability mechanism
\nreveals that the 70 per cent benchmark was not reached because of, for
\nexample, corruption in the health sector, then it will probably follow
\nthat the State has failed to comply with its international right to
\nhealth obligations.<\/p>\n

International assistance and cooperation is
\nan important element of the right to health. Donors have a
\nresponsibility to provide financial and other support for the policies
\nand programmes of developing countries regarding, for example, sexual
\nand reproductive health. Also, donors should be held to account in
\nrelation to the discharge of their responsibility. So, in relation to
\nthe example I have just sketched, indicators are needed to measure what
\ndonors have done to help the State deliver sound sexual and
\nreproductive health policies. Also, a monitoring and accountability
\nmechanism is needed to address the question: has the donor community
\ndone all it reasonably can to help the State deliver sound sexual and
\nreproductive health policies, enabling it to reach its benchmark of 70
\nper cent?<\/p>\n

Of course, these issues – indicators and
\naccountability mechanisms for the donor community – raise challenging
\nquestions. Nonetheless, indicators and accountability mechanisms that
\nfocus exclusively on the responsibilities of developing countries and
\ndo not also include the responsibilities of the donor community are
\nunfair, flawed and lack credibility.<\/p>\n

In summary, a disaggregated
\nindicator, such as the proportion of births attended by skilled health
\npersonnel, when used with benchmarks, can help us identify which
\npolicies are working and which are not. Moreover, it can also help to
\nhold a State to account in relation to its responsibilities arising
\nfrom the right to health. Of course, one indicator, even when
\ndisaggregated, cannot possibly capture all the dimensions that are
\nimportant from the right to health perspective. For this, other
\nindicators are needed. Nonetheless, this illustration shows how a
\ndisaggregated indicator, when used with a benchmark, can provide some
\nuseful information about the progressive realization of the right to
\nthe highest attainable standard of health.<\/p>\n

Very much more
\nbriefly, let’s look at one other new skill, technique or tool that we
\nneed if we are to advance economic, social and cultural rights.<\/p>\n

Before
\na State introduces a new proposal it must ensure that the initiative is
\nconsistent with its existing national and international legal
\nobligations, including those relating to human rights.<\/p>\n

In
\nthese circumstances, there is a growing demand for governments to carry
\nout human rights impact assessments prior to adopting and implementing
\nnew policies, programmes and projects. To date, however, relatively
\nlittle work has been done to develop methodologies and tools to help
\ngovernments undertake human rights impact assessments.<\/p>\n

Very
\nbriefly, human rights impact assessment is the process of predicting
\nthe potential consequences of a proposed policy, program or project on
\nthe enjoyment of human rights. The objective of the assessment is to
\ninform decision-makers and the people likely to be affected so that
\nthey can improve the proposal to reduce potential negative effects and
\nincrease positive ones. Although human rights impact assessment is a
\nrelatively recent concept, other forms of impact assessment – such as
\nenvironmental impact assessments and social impact assessments – are
\nnow well-established and routinely undertaken in many countries to
\nevaluate proposed policies, programs and projects. Similarly, such
\ninitiatives, prior to being adopted and implemented, should be assessed
\nfor their impact on human rights.<\/p>\n

Human rights impact
\nassessments are an aid to equitable, inclusive, robust and sustainable
\npolicy making. They are one way of ensuring that – for example – the
\nright to health – especially of marginalized groups, including the poor
\n– is given due weight in all national and international policy-making
\nprocesses. From the right to health perspective, an impact assessment
\nmethodology is a key feature of a health system. Without such a
\nmethodology, how will a government know whether or not its proposed
\npolicies, programs and projects are on target to progressively realise
\nthe right to the highest attainable standard of health, as required by
\ninternational human rights law?<\/p>\n

A colleague and I have tried to
\ndevelop a human rights impact assessment methodology. Others are also
\nworking in this area. More thought has to be given to this new tool – a
\ntool that is needed if we are to defend human rights, including
\neconomic, social and cultural rights.<\/p>\n

Again, I thank the
\norganisers of this meeting. Human Rights Now is providing an invaluable
\nenvironment for learning about international human rights law and
\npractice, as well as the experiences of other national jurisdictions.
\nIt embraces all human rights – civil, political, economic, social and
\ncultural rights. An organisation of the future, Human Rights Now richly
\ndeserves our sustained support.<\/p>\n","protected":false},"excerpt":{"rendered":"

Seminar By Professor Paul Hunt (UN Special Rapporteur on the right to the highest attainable standard of health, 2002-2008; University of Waikato, New Zealand; University of Essex, UK) Friday, 9th January 2009 Tokyo, Japan A 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.” […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[108],"tags":[12,20],"countries":[248],"class_list":["post-17","post","type-post","status-publish","format-standard","hentry","category-event","tag-economic-social-and-cultural-rights","tag-violence-against-women","countries-japan"],"acf":[],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/posts\/17","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/comments?post=17"}],"version-history":[{"count":3,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/posts\/17\/revisions"}],"predecessor-version":[{"id":1103,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/posts\/17\/revisions\/1103"}],"wp:attachment":[{"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/media?parent=17"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/categories?post=17"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/tags?post=17"},{"taxonomy":"countries","embeddable":true,"href":"https:\/\/hrn.or.jp\/eng\/wp-json\/wp\/v2\/countries?post=17"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}