Introduction
Economic Social and Cultural (ESC) Rights form an integral part of the Universal Declaration of Human Rights of 1948 and are further detailed in the 1966 International Covenant of Economic, Social and Cultural Rights (ICESCR). However, since their inclusion in these treaties, they have received little attention from states and human rights organizations. In fact, many are not even aware of the existence of ESC Rights, believing human rights to be comprised only of civil and political rights. This limits the prospects for systemic changes, reduces knowledge of individual and group entitlements and reduces government accountability to international agreements.
Fortunately, both human rights and development organizations are slowly beginning to recognize the importance of ESC rights. However, not all organizations have arrived at this conclusion and for those that have; they have yet to move beyond mere recognition. This needs to change. It is time that organizations reassess their current approaches, change their perceptions regarding human rights and begin to use a comprehensive human rights framework to reduce and eradicate poverty. In this paper an effort has been made to exemplify the ESC Rights as human rights in India.
Economic, Social and Cultural Rights
Economic, Social and Cultural Rights have been enumerated in a number of international treaties, such as the International Covenant of Economic, Social and Cultural Rights (ICESCR). These rights include, among others, the right of self-determination (Article 1), the right to work (6), the right to just and favourable conditions of work (7), the right to form and join trade unions (8), the right to social security and social insurance (9), the right to an adequate standard of living (11), and the right to education (13 and 14). In practice, however, ESC rights have never received a great deal of attention from the 137 states that signed the ICESCR or human rights organizations. While there are reasonable explanations given for this neglect, they are not substantial enough to prevent the inclusion of ESC rights into a human rights approach – especially after one considers the benefits resulting from such inclusion.
ESC rights have also been recognized in a number of other international treaties, such as the Convention on the Rights treaties, such as the convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All forms of Discrimination Against Women, the Convention Against Discrimination in Education and the various treaties of the International Labour Organization.
Reasons for Neglect
As mentioned above, ESC rights have not only suffered from lack of implementation, but also from lack of recognition. According to the Center for Economic and Social Rights, one reason for this neglect is that addressing ESC rights would mean, “addressing the enormous and growing inequalities at all levels of human society, from local to global.” So far, the international community has not been willing to take on such a monumental task. The other explanations for this neglect can be divided into two categories: 1) predominance of civil and political rights, and 2) lack of clarity regarding ESC rights.
Civil and Political Rights
Simply put, for the last 50 years, human rights organizations and states have focused their attention almost solely on civil and political rights. This preference can be attributed to a number of different causes. First, during the Cold War the United States used its relatively good record on civil and political rights to condemn the gross civil and political rights abuses that were occurring in communist countries such as China and the USSR. It should be noted, however, that in order to remain credible the US had to hide the fact that many of its anti-communist allies were also gross violators of civil and political rights. As to why the US explicitly chose not to focus on ESC rights during this period, this is a complex question with many differing answers.
Second, some believe that there is an implicit ranking system for human rights and those civil and political rights must first be met in order to enable a struggle for ESC rights. For example, Josh Rubenstein of Amnesty International asserts, “the dirty little secret is that the human rights movement really does believe that if you don’t have the right to say what you want, you’re not going to get what you need. It comes down to the fact that you have to protect civil and political rights first, if only as a vehicle to asset ESC rights.”
Lastly, many view civil and political rights as negative rights, while ESC rights are viewed as positive rights. Negative rights are those that do not require state resources and the actual obligation of the state is not to do something i.e. not to subject an individual to torture or not to carry out arbitrary arrests. Positive rights, on the other hand, require state resources since they are seen as obligations to do something, i.e. to provide free education. Presented in this manner, it is easy to see why states have been more receptive to implementing civil and political rights and thus why NGOs have chosen subsequently to focus their efforts on this set of rights. It is important to note that although this point of view is popular, it is not unchallenged. Stephen marks from Columbia University argues that civil and political rights do require state resources, such as building law schools and institutions, employing staff, allocating a substantial budget for the Ministry of Justice, etc.
Ambiguity Surrounding ESC Rights
The other main reason for neglect stems from the general ambiguity surrounding ESC rights. A training resource on ESC rights assets, “as a result of the relative inattention paid to ESC rights over the past several decades…. The content and meaning of most ESC rights remain relatively ill-defined.” This lack of clarity as to what exactly constitutes and ESC right has clarity as to what exactly constitutes an ESC right has served to complicate and deter efforts of human rights organizations to address these rights.
There is also a high degree of vagueness regarding what the actual obligations of the state are. This can be attributed to Article 2 (1) of the ICESCR, which states: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, 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 present Covenant by all appropriate means, including particularly the adoption of legislative measures.”
Without having a sound notion of the exact nature of state parties’ obligation, individuals and human rights organization are given very little room to either accuse states of being violators or pressure them into living up to their commitments. Furthermore, the state itself is unsure of its exact obligation. Thus, they might not be fulfilling them for lack of knowledge, rather than lack of desire.
The Economic and Political Situation in India
India in particular presents an interesting case study for further examining the recognition and implementation of ESC rights. Like many developing countries, the economy is driven by agriculture, with one third of national output and two-thirds of employment being accounted for by this sector. In the economy there is divisive income in equality and a full twenty percent of the urban population and thirty percent of the rural population below the poverty level. An expanding population of more than one billion further compounds economic problems. India, exhibits many characteristics associated with developed countries. It continues to be in transition from a largely government-controlled economy to one that is largely market driven. It has a comprehensive Constitution supported and upheld by a well-established legislative and judicial system. However, in India there remains a momentous divide between commitment to making law and enforcing full implementation of such laws.
India is committed to legislating ideas of civil, political, economic, social and cultural rights as well as legislating against human rights violations. To help overcome the problems of historic discrimination of caste and gender, India legislated and created a stringent reservation system to allow for her increased opportunity. However, while there have been successes as a result of the system, there is not complete commitment to implementation and support of the system. The intended recipients are still unable to be equally educated or to be hired for the reserved government jobs. They do not have the authority positions to make changes. Instead, this motivation must come from those who are upper caste and upper class and there is simply a lack of political will at any level to implement the laws and realize such advancements toward human rights.
India has also ratified several international covenants focusing on varying aspects of human rights, including the Universal Declaration of Human Rights as well as ICESCR. It has enacted many laws that support the spirit of the Declaration and the Covenant, as well as laws that provide precise rights and obligations beyond the vagueness of the international documents. Along with 188 other countries India has committed itself to eight Millennium Development Goals that aim to eradicate extreme poverty and improve the welfare of all peoples by the year 2015.
– Dr. P. Ramesh
Asst. Prof. of History, Udaya College of Arts and Science, Vellamodi, Kanyakumari District, Tamil Nadu.
References
1. “Economic, Social and Cultural Rights: A Guide to the Legal Framework.” January 2002, Center for Economic and Social Rights.
2. “Developing a Common Framework for the Promotion of Economic, Social and Cultural Rights, Workshop I Summary Report.” October 1995.
3. “Report of the independent expert on the question of a draft protocol to the International Covenant on Economic, Social and Cultural Rights’. February 2002.
4. Boliver, L. and Gonzalez, E. “Circle of Rights, Economic, Social and Cultural Rights Activism: A Training Resource”. Module 8.
5. Fact Sheet No. 16, The Committee on Economic, Social and Cultural Rights.
6. Circle of Rights, Module 1.
7. “Broken People” Human Rights Watch, 1999.
8. Country Reports on Human Rights Practices (India), United States Department of States, released by the Bureau of Democracy, Human Rights and Labour, March 4, 2002.
9. Surinder Khanna, Dalit Women and Human Rights, Swastik Publications, Delhi, 2011
10. Sangeeta, S., The Dalit Womens Movement in India, Manglam Publications, Delhi, 2011.
11. Paramasivan, C., Women Empowerment, Regal publications, New Delhi, 2012.