I. Applying Economic and Social Rights in Palestine

Non-governmental organizations in the human rights field should urgently consider what can be done to remedy the present situation in which the great majority of NGOs pay little more than lip service to economic, social and cultural rights.ⁱ

Introduction

The Oslo processⁱⁱ continues to capture world attention.  But the world views Oslo solely through the politics of the process itself - meetings between leaders, shuttle diplomacy, and military and security arrangements.  International attention rarely focuses on Oslo's significant and largely negative impact on the daily lives of Palestinians.

Because of this neglect, the media and public remain unaware that six years of "peace" have meant a downward spiral of poverty, hardship and misery for the majority of Palestinians.  The main powers responsible for this economic crisis – Israel, the Palestinian Authority (PA), and international donors – have ignored human rights and economic justice throughout the Oslo process.

This paper argues that economic, social and cultural rights (ESCR) provide a framework for analyzing the economic crisis, assessing responsibility, demanding accountability, and offering solutions.

Well-established in international law, ESCR can address Palestinian living conditions not as adjunct issues to the political process, nor simply as development goals to be compromised at will, but rather as fundamental human rights that demand priority and action.  These rights can be claimed through legal and political advocacy against the powers that exercise real control over Palestinian lives, and therefore bear responsibility for human rights violations.

The first section of this paper outlines the development of ESCR laws and standards, discussing past neglect of these rights and outlining a new human rights approach to economic injustice.  The second applies the ESCR framework to Palestine and assesses the respective responsibility of Israel, the PA, and international donors for rights violations.

I. The Legal Regime of ESCR

In recent years there has been a surge of interest in ESCR and more generally in the intersection of economic development and human rights.  Neglected during the Cold War, ESCR have assumed heightened significance in light of the persistence of systemic poverty and inequality in the global economy.  The failure of traditional development policies, seen in the increasing divide between rich and poor around the world, has spurred new efforts to address economic deprivation through human rights strategies. 

A. Historical Development

ESCR were established in the Universal Declaration of Human Rights (UDHR), the founding document of international human rights law.ⁱⁱⁱ  Unanimously ratified by the UN General Assembly in 1948, the Universal Declaration broke new ground in international relations by establishing binding legal duties that governments owed to individuals and groups rather than to other governments.  The Universal Declaration also recognized the interdependence and indivisibility of all human rights, thereby guaranteeing all people both civil and political freedom – through the human rights to life, physical integrity, free speech and belief, due process of law, and political participation – and economic and social freedom – through the human rights to an adequate standard of living, housing, work, education, food and health.

Over the past 50 years, ESCR have been elaborated in a wide range of international treaties, laws, and principles, despite being neglected in practice.^iv  Of primary importance is the 1967 International Covenant on Economic, Social and Cultural Rights (the "Covenant"), which has been ratified by 137 states to date.^v  ESCR have been recognized in all major international treaties protecting the human rights of vulnerable groups, such as the Convention on the Rights of the Child,^vi the Convention on the Elimination All Forms of Discrimination Against Women,^vii and the Convention on the Elimination of All Forms of Racial Discrimination,^viii as well as various treaties of the International Labour Organization.  ESCR have also been adopted by regional organizations such as the European Union and the Organization of African Unity, as well as recognized in many national constitutions and laws.^ix

There is a growing body of jurisprudence on ESCR developed by scholars, national courts, and international legal bodies such as the UN Committee on Economic, Social and Cultural Rights (a group of experts that reviews state compliance with the Covenant).^x  For example, the Committee has issued a series of general comments elaborating the legal content of specific rights (housing, food, education),^xi as has another UN human rights body, the Sub-Commission on Prevention of Discrimination and Protection of Minorities (food, housing).^xii

The international law of ESCR provides a legal, political, and moral framework to challenge policies that perpetuate poverty and inequality.  Just as governments are accountable under human rights law for denying political freedom, so too they are accountable for denying adequate food or health care.  ESCR also provide a framework for people to participate in claiming their own rights.  This enables affected communities and NGOs to demand legal accountability in situations where policy-makers would prefer to obscure the lines of responsibility and avoid public scrutiny.

B. Violations of ESCR

Assessing violations in concrete situations is one of the most important aspects of ESCR.  Despite controversy over the precise meaning of the Covenant's "progressive realization" clause, there are three types of policies that always constitute violations of ESCR.  First are policies that deprive people of a basic level of subsistence necessary to live in dignity – the principle of minimum core content.  Second are measures that actually worsen people’s access to ESCR – the principle of non-regression.  Third are policies that discriminate in access to economic and social goods– the principle of non-discrimination.

Failure to satisfy essential human needs, based on the minimum core content of ESCR, is an immediate and absolute violation of human rights that can never be excused by a country’s level of development.^xiii  This recognizes that people’s very survival depends upon access to essential services and that no state is too poor to meet those basic needs.  As noted by Danilo Turk, the UN Special Rapporteur on ESCR:  "States are obliged, regardless of their level of economic development, to ensure respect for minimum subsistence rights for all."^xiv

The Committee has also declared that responsible parties may not adopt regressive measures that harm ESCR, for example through “a general decline in living and housing conditions directly attributable to policy and legislative decisions by States parties.”^xv  The principle of non-regression would prohibit a government from cutting back on basic services such as health care or primary education, even under pressure from international lenders such as the IMF and World Bank, if such cutbacks lessened people's access to those services.

The Covenant flatly prohibits discrimination in access to food, health care, housing, work, education and other ESCR on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”^xvi  The prohibition against discrimination is absolute.  Discrimination may not be justified under any circumstances, such as low levels of development.  Moreover, policies are considered discriminatory if their effects are discriminating in practice, even if those effects were not intended.^xvii

C. Cold War Misperceptions

Although human rights developed a solid legal foundation in the 50 years since the Universal Declaration, ESCR in particular were neglected and distorted throughout the Cold War.  During this time, the United States and Western countries promoted civil and political rights (CPR), downplaying and even dismissing ESCR.^xviii  This explains why the human rights regime was divided into two separate international covenants for CPR and for ESCR, although each paid lip service to the concept that all human rights are “interdependent and indivisible.”^xix

Cold War ideology also affected the practice of human rights practice in civil society.  The major international human rights groups, based and funded in the US and Europe, focused their work exclusively on CPR.  Human rights discourse also prioritized CPR, terming ESCR “second generation” rights despite their equal status in the Universal Declaration and the two covenants.^xx  This imbalanced approach has left its imprint on human rights practice in the form of several enduring misperceptions.

One traditional fallacy views CPR as negative (or concrete) rights that are resource-free and therefore immediately realizable, and ESCR as positive (or abstract) rights that require state expenditures and are therefore subject to progressive realization.  However, it can easily be shown that all human rights have a negative action component requiring little to no resources (the duty to respect), a regulatory action component requiring some resources (the duty to protect), and a positive action component requiring significant resources (the duty to fulfil).  The negative component of the right to political participation means that one should not be prevented from voting; for example, by charging exorbitant registration fees.  The regulatory component requires that third parties be prevented from interfering in the vote; for example, armed groups seeking to intimidate voters.  The positive component requires the establishment of institutions and procedures to ensure a free and fair voting process.  By the same token, the negative component of the right to food means that one should not be deprived of the means of feeding oneself; for example, through land or crop confiscation.  The regulatory component requires that third parties be prevented from interfering in food production; for example, a corporation dumping toxic chemicals in traditional fishing waters.  The positive component requires the establishment of institutions and procedures to ensure that hunger and malnutrition are eliminated.

Another common argument is that ESCR are too vague to measure and too complex to enforce.  These charges are generally made by Northern human rights lawyers unfamiliar with the field of development.  There are volumes of research on socio-economic conditions (concerning health, education, and other ESCR issues) compiled by academics and development agencies.  UN agencies have produced methodologies for assessing these conditions and comparing them across countries; for example, the UNDP’s human development index, UNICEF’s rate of progress measurements, and the World Bank’s report on World Development Indicators..  There is clearly not a lack of data, since the IMF relies on detailed economic indicators when imposing structural adjustment programs that limit state expenditures in social sectors such as health care and education.  And judges assess complex economic data when deciding anti-trust cases; for example, the recent US case against Microsoft.  These same methods can and should be used to defend people’s rights to the basic necessities for a life of dignity.

A related argument – that ESCR are not judicially enforceable – is factually inaccurate.  Many states have enshrined ESCR in their constitutions and domestic laws, and as a result, there are numerous examples of courts adjudicating and enforcing ESCR around the world.  Even in the US, whose legal system is generally hostile to ESCR, many state constitutions protect health and education, for example, and these rights have been frequently litigated.

It should be apparent that the traditional Cold War pretexts for neglecting ESCR are in fact ideological positions masquerading as legal and methodological objections.  In essence, these objections reflect a refusal to recognize the value and dignity of a majority of the world’s people, struggling to survive the poverty and deprivation caused by countless human rights violations.

The main obstacle to realizing ESCR has always been a lack of political will by those holding power in governments, international institutions, and even some civil society groups with human rights mandates.  This failure to promote ESCR allows decision-makers to pursue policies that impoverish people with impunity and without accountability.  Even worse, victims of these policies are demobilized through lack of recognition that their most basic human rights are being violated.^xxi

D. New Human Rights Approach

The end of the Cold War has opened new space for activist approaches to ESCR.  In response to public pressure during the 1990s, the international community of states convened at world summits on such issues as human rights (Vienna 1993), social development (Copenhagen 1995), and food security (Rome 1998).  Major UN agencies, including UNDP and UNICEF, have adopted new policies and programs on human rights and human development.  Even powerful international financial institutions such as the World Bank, the WTO, and global corporations recently have been compelled to address the human rights impacts of their economic policies.

But the real momentum towards ESCR has been created by grassroots and civil society groups, especially from the South.  A growing number of these groups are promoting a “bottom-up” model of human rights that prioritizes the interests and participation of oppressed communities.  This approach recognizes that real social gains are rarely handed down by benevolent governments and decision-makers, but rather must be struggled for and claimed by those directly affected by violations.

This new human rights approach moves beyond the legalistic fact-finding and quick interventions that characterize traditional human rights work.  Instead it relies on multidisciplinary social science research to document violations and assess responsibility.  Moreover, advocacy at the international level is linked to community-based campaigns for economic justice to ensure the priority of local concerns.

The new approach recognizes the value of addressing issues such as a living wage, primary education, and access to clean water and health care as human rights as well as development goals.  Recasting issues of systemic poverty in the vocabulary of human rights helps disenfranchised communities recognize that their struggle, at its core, is over dignity and rights rather than mere charity.  Human rights advocacy also channels public pressure through a framework of legal and moral accountability in situations, like the current crisis in Palestine, where policy-makers would prefer to obscure the lines of responsibility and avoid public scrutiny.