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Legalizing economic and social rights won’t help the poor

Making social and economic rights part of a country’s constitution does not help the poor, and may even hurt. An evidence-based response to Saiz’s and Yamin’s plea for the indivisibility of human rightsA contribution to the openGlobalRights debate on Emerging Powers and Human RightsEspañol

International human rights activists often claim that all rights are “indivisible”; no one set of rights is more important than another. They typically make this argument to improve the standing of social and economic rights, long the poor relation of civil and political rights. A major impediment to indivisibility, however, is the perception that states cannot legally enforce social and economic rights.

South Africa, Brazil and Colombia have all tried to make indivisibility real by including social and economic rights in their constitutions. So does the EU Charter on Fundamental Rights, whose social stipulations may soon be enforced through the European Court of Justice. And in 2013, the International Covenant on Economic and Social Rights introduced an optional protocol permitting individual complaints against states.

Understandably, proponents of indivisibility say these developments are evidence that social and economic rights can be legally enforced as individual rights, just like the right to freedom of expression and other civil and political rights. Skeptics remain, but these efforts have made indivisibility a topic of pressing policy concern.

There is little research, however, on the actual effects of constitutionalizing social and economic rights. Do they deliver justice? The real question is not whether health, education and adequate living standards are worthy of attention and resources, but whether these goods can be assured through the application of social and economic human rights.

My colleague, Danish economist Christian Bjørnskov, and I decided to examine this question in depth. In a working paper currently under scholarly peer review, we surveyed the constitutions of 188 countries, and identified 75 that had included social and economic rights in their constitutions, and 37 that had made these rights justiciable.

Then, we traced the constitutional status of three main social rights - the right to health, education and social security – over 50 years, from 1960 to 2010. We statistically compared the evolution of health, education and relative income differences across countries that did, and did not, introduce social and economic rights, controlling for multiple other factors such as national income and regime type. 

Our findings suggest that the introduction of social and economic rights do not, in general, have robustly positive effects on the population’s long-term social development. We, for example, find no effects of health rights on immunization rates or life expectance, regardless of whether they are justiciable or not. 

Even more surprising, we found that the legalization of economic and social rights had a strongly negative medium-term effect on education, as well as a robustly negative medium-term increase of inflation and detrimental effects of the right to health on child mortality.

Why does the legalization of economic and social rights have negative consequences? Our hypothesis is that the introduction of these new rights cause disruptions, most of which are borne by those already in the education system, and those least likely to have access to the legal and political system, i.e., the poor. Since the rights do not give governments or private actors more resources, what is likely to occur is simply that governments reallocate scarce resources towards those more likely to claim their newly given rights, whether they are individuals or identifiable groups. Of course, one can point to people whose lives have been saved by courts ordering expensive treatments, as has happened in Colombia, or people escaping abject poverty based on a right to a certain level of income. But these individual examples obscure our study’s broader, macro-level findings. 

One might object to such a seemingly cold and calculated “spreadsheet approach” to human rights, and insist that the individual’s human rights should not be subjected to such a utilitarian calculus. But in the domain of social and economic rights, one can only do this by turning a blind eye to the effects on real people that are not immediately apparent from the numbers and graphs of our study.

The Colombian courts may have saved the lives of a few, but we must ask ourselves: how many died, or were forced to live with a disease that could have been cured, because of resources diverted from them to others who were lucky enough to have access to a good lawyer?


Leyand Cecco/Demotix (All rights reserved)

Chalk slates are used by many students in rural Uganda; a symptom of resource shortages.


And what about the people whose access to education, housing or social security is affected by the diversion of funds to health, or vice versa, depending on the outcome of cases that appear before courts in no particular order? By definition, resources are scarce, and governments must prioritize. This sits uneasily with the notion of human rights as a “trump card” taking priority over other considerations. So while the constitutionalization of social and economic rights has been a victory for human rights activists, it is not clear that it has done very much for the people who were supposed to benefit.  

The lesson of our findings is not that we should be indifferent to the plight of the poor, but rather that human rights are a blunt and ineffective instrument for alleviating poverty, or securing access to health and education. Human rights can help shine a light on, and remedy, instances of clear abuse, including in the economic and social domain such as large scale forced evictions or policies of deliberate food deprivation (think North Korea and Ethiopia). They cannot, however, deal efficiently with the complexities of general policies on health, education and poverty. However, it would be mistaken to conclude that turning our backs on a rights based approach to health and poverty also means turning our backs on the sick and poor. It is not that these goods are any less important than free speech or the prohibition against torture. But the inherent complexity of these goods makes human rights ill suited to provide them for those in need. What human rights have succeeded spectacularly in, however, is to provide the basic framework that allow those in civil society who care about poverty, health and education to campaign, disseminate ideas, hold political leaders accountable and ultimately achieve political change.  But by using “human rights” to solve vital policy questions, those who care most about the underprivileged may actually be making things worse.  

About the author

Jacob Mchangama is the founder and executive director of Justitia, a Copenhagen based think tank focusing on human rights and the rule of law and the co-founder and co-director of The Freedom Rights Project. He has taught international human rights law at the University of Copenhagen and written on human rights in Foreign Policy, Foreign Affairs, Wall Street Journal Europe and The Times. He tweets @jmchangama.

Mchangama es cofundador y director de The Freedom Rights Project. También ha dado clases de derechos humanos internacionales en la Universidad de Copenhague y publicado numerosos escritos sobre derechos humanos en medios internacionales, como Foreign Affairs, Foreign Policy, The Wall Street Journal y The Times.

 

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