Statement by Ms. Louise Arbour High Commissioner for Human Rights to the Open-Ended Working Group established by the Commission on Human Rights to consider options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights


Second Session, Salle XVII, Palais des Nations, Friday 14 January 2005

Thank you madam Chairperson [Ms. Catarina Albuquerque, from Portugal],

Distinguished delegates,

Allow me first of all to thank you for giving me the opportunity to address you today. It was my intention to participate in the opening of your session but I had to be in New York on Monday, and I appreciate this opportunity to meet with you today.

One of the basic challenges faced by the UN human rights system is that of giving true meaning to the principle of the indivisibility and interrelatedness of all human rights. For various reasons, economic social and cultural rights have not always received the same amount of attention as civil and political ones. It is now time to change that. For these reasons, I consider the work in which you are engaged to be among the most important of current initiatives under consideration by the Commission on Human Rights. Your efforts to follow up on the political consensus that was forged at the World Conference on Human Rights in Vienna, more than a decade ago, represent a major contribution to the fundamental role played by the Commission in setting standards and clarifying content of human rights.

Your Working Group is considering various options regarding the elaboration of an optional protocol to the International Covenant on Economic, Social and Cultural Rights. I know that both during your first session and earlier this week you have been involved in very enriching and complex discussions, including with outside experts. It is a particular pleasure for me to join you in your deliberations.

Of course, the final decisions on the way forward belong to States. But you have given me, as High Commissioner, a mandate to promote and protect the effective enjoyment by all of all human rights and to do so guided by the recognition that all human rights are universal, indivisible, interdependent and interrelated. I hope you will thus allow me to highlight my own understanding of the crucial role that additional options for international procedures could play in providing States with guidance and advice as to how to implement more effectively the international bill of rights.

The importance of economic, social and cultural rights cannot be overstated. Poverty and exclusion lie behind many of the security threats that we continue to face both within and across borders and can thus place at risk the promotion and protection of all human rights. Even in the most prosperous economies, poverty and gross inequalities persist and many individuals and groups live under conditions that amount to a denial of economic, social, civil, political and cultural human rights. Social and economic inequalities affect access to public life and to justice. Globalisation has generated higher rates of economic growth, but too many of its benefits have been enjoyed unequally, within and across different societies. Such fundamental challenges to human security require action at home as well as international cooperation.

The Universal Declaration of Human Rights reflects the principle of the equal status of all human rights. Although we have a tendency to make distinctions among fundamental human rights in terms of abstract ‘categories’ such as ‘civil and political’ and ‘economic, social and cultural,’ or ‘first generation,’ ‘second generation,’ etc., this approach lacks intellectual rigour. Such categorizations overshadow what is common to all human rights, and overemphasize irrelevant differences.

Of course, the methodology for protecting and promoting certain rights can differ, just as the capacity of States and the types of resources required to guarantee enjoyment of various rights differ. But the characteristics inherent in the nature and enforceability of human rights do not justify different levels of commitment to the enjoyment of all rights. To deny social, economic and cultural rights by reducing their meaning to that of mere aspirations would overlook not only the common historical origins of all human rights, but also their conceptual and functional connections.

As I stated during my time as a Supreme Court judge in Canada, few would dispute that an advanced modern welfare state has a positive moral obligation to protect the life, liberty and security of its citizens - one that requires implementing economic, social and cultural rights. The challenge, in the context of prosperous states, seems to come down to the perception that such moral obligation is of a mere political, rather than legal nature. For poorer States the difficulty seems based on the misperception that the legal obligations are obligations of result rather than obligations of means. Yet, the Covenant acknowledges that developing the progressive capacity of States to implement fully certain rights and to comply with some of the resulting obligations may require resources as well as political will - as it can require international assistance and cooperation.

Recognising the status of economic, social and cultural rights as justiciable entitlements is crucial to honouring the political, moral and legal commitments undertaken by States when the international bill of rights was adopted. Much of the reticence around the proposals concerning elaboration of a possible Optional Protocol to the Covenant turns around questions concerning the justiciability of economic, social and cultural rights. Of course courts, international expert bodies and human rights instruments do not have all the answers to all the key social and political questions faced in society. But, just because such questions have a large political component does not mean that they are entirely beyond the scope of the judiciary.

Social, economic and cultural rights create binding obligations on States under a broad range of international human rights treaties, some with near universal ratification, such as the Convention on the Rights of the Child. At the regional level they have been recognised under the Inter-American, African and European regional human rights systems, where communication procedures are in place to address individual and group petitions. Many countries – in different regions – provide examples illustrating that it is possible for questions raised by individuals and groups to be examined by courts and expert bodies without undue interference in the policy setting roles of executive and legislative powers. The justiciability of these rights is increasingly finding its place in national constitutions.

All human rights must be given effect at the national level. This requires the creation and implementation of legislative as well as administrative and policy measures. Regarding enforcement, international law emphasizes judicial remedies for violations of human rights, though administrative remedies can also be acceptable if they are “timely, accessible, affordable and effective”. Courts are playing an increasingly vital role in enforcing socio-economic rights, making clear the transition from need and charity to meaningful entitlement and binding obligation. In practice, effective judicial enforcement depends more on courts being granted the authority to hear claims, than on the inherent nature of the rights. Similarly, litigation and examination of individual and group petitions at international level can both help to develop understanding of the substantive content of international norms and lead to real change for individuals. The availability of remedies at the international level also provides a useful incentive to ensure the development of effective remedies at the national level.

From my own experience of working with courts and tribunals, I know how delicate the issue of separation of powers can be and how important it is to acknowledge the connections between legal and political processes without blurring the lines that must separate them. However, reviewing claims related to social, economic and cultural rights is not fundamentally different from the functions involved in the review of petitions concerning other rights. As for normal judicial review functions, the key is often in examining the ‘reasonableness’ of measures adopted by each State - given its specific resources and circumstances - by reference to objective criteria that are developed in accordance with standard judicial experience and with the accumulation of jurisprudence. A petition system at the international level can help provide guidance for the reasonable interpretation of universal norms in the provision of remedies at the domestic level. In many cases, it can also serve to establish if there is already the effective or appropriate implementation of existing laws and policies, rather than to determine the reasonableness of such laws and policies.

International and national level jurisprudence has also helped to clarify that social and economic rights are not merely vague ideals. Like civil and political rights, they may have cost implications. As detailed analysis and jurisprudence from different political, economic and legal systems show, it is a myth that economic, social and cultural rights are uniquely and consistently “expensive”. In fact, all human rights norms require rationality and equity in resource allocation, as well as determined efforts to make progress within existing resource constraints.

Distinguished Delegates, Ladies and Gentlemen

This is my short contribution to your deliberations.

Human rights are not a utopian ideal. They embody an international consensus on the minimum conditions for a life of dignity. Respect for human rights requires determination and cooperative efforts. It also requires legal frameworks at the national and international levels within which individuals and groups can claim their rights. Only that possibility will give human rights their full meaning for every member of every society - the marginalized and excluded as well as the powerful and influential.