Due Process of Law Foundation/Jaume Escarta. All rights reserved.
After World War II, a paradigm of States’ promotion of social welfare was predominant in several western governments, including those that lead the peace conferences that galvanized the constitutive instruments of the United Nations. This environment influenced the drafting of the Universal Declaration of Human Rights and regional human rights declarations in Europe and the Americas. The Universal Declaration of Human Rights of 1948 enshrines several civil and political rights (CPR) along with economical, social and cultural rights (ESCR). This trend was followed in the American continent, where a Declaration of the Rights and Duties of Man combined CPR and ESCR provisions with no distinction.
As the ideological dispute between the eastern and western political blocks increased throughout the 1950s, the trend towards addressing CPR and ESCR in the same treaty began to fade. In 1951, a Western-dominated United Nations Commission on Human Rights defended the adoption of two separate covenants, and after 17 years of debates the UN General Assembly adopted the final texts of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Although their Preamble and Article 1 share the same text, the ideological dispute that characterized their preparatory works resulted in remarkable differences in the language of other provisions. Whereas the ICCPR phrasing is similar to the one found in declarations of rights enacted after the liberal revolutions of the 18th and 19th centuries (everyone has the right to…), the ICESCR affirms states’ acknowledgement of specific rights (States Parties recognize the right of everyone to…).
Another difference concerns the monitoring mechanisms deployed in each Covenant. Since its entrance into effect the ICCPR requires states to submit periodic reports to the Human Rights Committee (CPR Committee), which has issued several concluding observations regarding the status of compliance with the civil and political obligations in the states parties to the Covenant. An Optional Protocol of March 1976 entitled the CPR Committee to examine individual complaints for violations of the rights enshrined in the Covenant. As to ESCR, decision 1978/10 of the United Nations Economic and Social Council (ECOSOC) of May 1978 assigned to a Working Group the mandate to examine state reports regarding the implementation of the ICESCR. In May 1985, ECOSOC adopted resolution 1985/17, which renamed the Working Group the Economic, Social and Cultural Human Rights Committee (ESCR Committee). Several years later, in December 2008, the UN General Assembly adopted a Protocol to the ICESCR, allowing its Committee to receive and examine individual complaints. While the CPR Committee has a long catalogue of decisions on individual complaints, the first equivalent decision taken by the ESCR Committee happened in September 2015, regarding Spain.
On the American continent, the ideological pressure over international commitments to ESCR was even more evident during the Cold War. The first drafts of the American Convention on Human Rights prepared by the Inter-American Committee of Jurists suggested a comprehensive list of ESCR along with CPR, but after a lengthy preparatory work, its final text of 1969 dedicated 23 Articles to CPR and only one (Article 26) to ESCR. Rather than specifying the rights protected, Article 26 merely alludes to the economic and social standards present in the Charter of the Organization of American State (OAS).
In 1988, the countries of the Americas adopted a Protocol on ESCR, also known as the Protocol of San Salvador. This instrument protects the following rights: work; just, equitable, and satisfactory conditions of work; organization of trade unions and the right to strike; social security; health; food; education; benefits of culture; and the protection of the elderly and the handicapped. Article 19(6) limits the contentious jurisdiction of the Inter-American Commission (IACHR) and the Inter-American Court on Human Rights (IACt-HR) to the rights enshrined in Articles 8 (trade union rights) and 13 (education). The supervision of states’ obligations with respect to the other provisions is subject to a monitoring system of country reports set forth in Article 19 of the Protocol, which was only regulated at the Organization of American States’ General Assembly of June 2012.
Despite the history of the adoption of different treaties intended to establish an international bill of rights, there are enough elements to assert that ESCR instruments impose binding obligations as enforceable as CPR. At the UN level, the ESCR Committee has asserted that although states have discretion in the means to ensure the ICESCR’s provisions, these means are subject to review by the ESCR Committee. This Committee has also pointed out that although states are free to choose different actions and policies in order to meet their obligations under the ICESCR, “the need to ensure justiciability […] is relevant when determining the best way to give domestic legal effect to the Covenant rights”.
In the Inter-American context, although the drafting technique employed by Article 26 of the American Convention added some confusion as to the nature of states’ obligations, there are at least three reasons to conclude that ESCR are as binding and enforceable as CPR. First, Article 26 regulates general obligations in a similar way as to Articles 1.1 and 2 of the Convention. Both the IACHR and the IACt-HR have stressed that these provisions impose immediate obligations to adopt internal legislation, to respect, protect and fulfill the rights set forth in the Convention. Given that Articles 1.1 and 2 make no distinction between CPR and ESCR, the obligations contained thereto also apply to Article 26. Second, the obligation of progressive realization established in Article 26 uses a similar language of Article 2 of the ICESCR, whose Committee has interpreted it as a mandatory obligation. Finally, the “non-regressive” obligations set forth in Article 26 have been interpreted as justiciable by the IACHR and the IACt-HR, under their individual complaint mechanism.
Misleading assumptions on CPR and ESCR differences
A traditional assumption sustains that the difference in language usually employed by CPR and ESCR statutes is explained by a hierarchical relation of the first over the latter. A more radical view disputes the feasibility of bringing ESCR judicial claims, arguing that only CPR, no matter the historical and legal tradition of the country concerned, can easily fit into a judicial proceeding. In legal discourse, this approach refers to CPR as concrete, self-executing individual freedoms with a correlative negative and binding obligation upon states. On the other hand, it defines ESCR as vague, non-obligatory collective aspirations with a correlative directive for governments.
The aforementioned assumptions import to the legal discourse an old debate on political philosophy regarding the legitimacy of supra-individual institutions to determine welfare. This debate was indelibly impacted by a paramount speech given by United States President Franklin Delano Roosevelt in January 1941, when he defined social welfare as a “freedom from want”. At that time, the majority of the United States electorate embraced the assumption that the failure to fulfill the freedom from want had brought humanity to a second world war, as radicalism found shelter in the economic and social crises experienced in Europe decades earlier.
Roosevelt’s confidence in the four freedoms - i) freedom of speech, ii) freedom of worship and religion, iii) freedom from want and iv) freedom from fear) was ultimately honored in the UN Charter of 1945, which affirms the promotion of “a higher standard of living, full employment and conditions of economic and social progress and development” as a conditions for the stability and peace among nations. Restoring the importance of this tenet requires broad efforts to move beyond the ideological dispute that caused the political and legal discourse on CPR and ESCR grow apart for several decades. Part of the effort should be made in the United States, where social welfare and freedom was once considered to share the very same importance.
This article was previously published at the Due Process for Law Foundation’s Blog.