Treaty Obligations of States for Economic, Social, and Cultural Rights
Treaty Obligations of States for Economic, Social, and Cultural Rights
Theory and Assessment
Abstract and Keywords
The chapter starts with an examination of the nature of ESC rights and the relevant concepts and approaches developed by the ICESCR and legal doctrine. These include, in particular, the notion of a minimum core content of ESC rights, the economic contingency of the rights, and the tripartite typology of obligations developed in human rights law. It also evaluates the challenges posed by the notion of progressive realization as expressed by the formula of ‘maximum available resources’, and the way the resources available to the state can determine the scope of its obligations under the Covenant. The chapter also looks at the effect of militarization on resource allocation, including the latest development relating to arms acquisitions and the recently adopted UN Arms Trade Treaty.
This chapter examines the nature of states’ obligations to respect, protect, and fulfil economic, social, and cultural (ESC) rights, in particular the elusive Article 2, paragraph 1 of the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and its constituent elements. The provision advances the contingent nature of the obligations upon states parties insofar as the level of a country’s development can determine the progressive implementation of these rights. This gives rise to complex legal and practical issues, since it is assumed that their application and implementation is inherently linked to a specific context.1 However, the degree of flexibility in the extent to which the states are to implement ESC rights does not exclude legal constraints that are of an immediate nature.
This chapter will begin by unpacking conceptual assumptions related to the different levels of obligations related to the nature of ESC rights in international law and successive interpretations of these obligations. These include, in particular, the notion of a minimum core content, the economic contingency of the rights, and the tripartite typology of obligations developed in human rights law. The distinction between negative obligations of abstention from action that would violate ESC rights and positive obligations requiring proactive measures will be considered in detail. The difference between the two becomes crucial, because questions of access to education, health, or work—considered as freedoms from arbitrary (p.25) deprivation by the state—will be further analysed in Chapter 2, which deals with the lawfulness of restrictions on ESC rights on security grounds.
Since the application of the ICESCR legally withstands the outbreak of armed conflict, a distinction should be drawn between the continued operation of the treaty during the armed conflict and the effect the armed conflict has on the performance of states as required by the Covenant.2 The following analysis will therefore assess whether any criteria exist that apply in any context, including in armed conflict, to objectively assess the performance of obligations by states parties under the Covenant. The question is whether the flexibility provided by the treaty itself determines what ESC rights ‘obligation’ might realistically mean in a given context.
2. Aspects of Immediate Obligations and Obligations of Progressive Realization
Article 2, paragraph 1 of the ICESCR determines the nature of state obligations under the treaty, and the general obligation applies to virtually all rights enumerated therein:
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 progressively achieving the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.3
The formulation of this general obligation is so vague that it has generated a wide variety of interpretations, some in favour of a legal proposition, others not.4 Despite the wording and all the criticism it has attracted, it should be noted that states have decided to retain the same terminology and approach in more recent negotiated treaties.5
While this provision sets out the general obligation of progressive achievement, the Committee on Economic, Social and Cultural Rights (CESCR) and scholars have pointed out that not every aspect of a particular right is subject to the progressive qualifier. The state has a continuous general obligation to realize (p.26) ESC rights, which has to be discharged through a series of specific obligations that are of a varying nature. A right can thus be translated into a series of obligations, some of which are of immediate and others of progressive nature. Consensus opinions on provisions capable of immediate application and enforcement by judicial and other organs in many domestic legal systems include the absolute guarantee against non-discrimination set forth in Article 2(2)6 and the principle of equality between women and men (Article 3).7
The Committee, in its General Comment on the nature of state party obligations, gave an indicative list of the provisions ‘capable of immediate application by judicial and other organs in many national legal systems’.8 These include: Article 7(a)(i) on equal pay; Article 8 on the right to form trade unions and to strike; Article 10, paragraph 3 on the obligation to take special measures of protection and assistance on behalf of children and young persons; Article 13, paragraph 2(a) on free and compulsory primary education for all; and Article 13, paragraph (3) on the freedom of parents to choose the type of education provided to their children.9
These obligations continue to apply even in times of economic crisis or in situations of armed conflict. It is necessary, however, to highlight a number of caveats regarding the immediacy of application of these provisions. For instance, the immediate application of the right to free primary education depends on whether an educational system with infrastructure, equipment, and resources pre-existed, but such a system may not, or may no longer, be available in a situation of armed conflict.10 In such a case, states would arguably have the immediate positive duty to ensure that the educational system is maintained and improved and, when attacked, repaired as soon as possible, in light of the reasonableness standard.11
(p.27) While certain provisions have been identified as being of immediate application, the obligation ‘to take steps’ (s’engage à agir) has been interpreted as imposing obligations of immediate effect to take deliberate and targeted steps and use all appropriate means.12 These include legislative measures such as the incorporation of the ICESCR into domestic law and provision of judicial remedies, although there are few states that incorporate it into domestic law, and even fewer that make the rights justiciable before domestic courts.13 But it also includes other appropriate means such as administrative, financial, educational, or social measures.14 For instance, adopting and implementing a national strategy and plan of action in the field of education, health, or water/sanitation can be related to the immediate obligation to ‘take steps’.15
Another set of immediate obligations concerns the minimum core content of each of the rights protected under the ICESCR. This obligation creates a fundamental minimum level of obligations that includes the negative duty of states not to arbitrarily interfere with the exercise by individuals of their human rights. The minimum core content is explored in more detail in the following section.
As to the full realization of ESC rights, it must be viewed as taking place over time, reflecting available resources and national particularities, and depending in part on available resources, but states parties are required to move as expeditiously as possible toward the realization of the rights.16 This notion of progressive realization ‘constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time […] reflecting the realities of the real world and the difficulties involved for any country in ensuring [their] full realization’.17
In imposing an obligation to move as ‘expeditiously and effectively as possible’ toward the Covenant’s goal, the ICESCR does not allow generally for any measure (p.28) that may imply a step back in the level of enjoyment of those rights.18 The CESCR has coined the term ‘retrogressive measures’ to refer to certain state practices that undermine the protection afforded by the Covenant.19 General Comment No 4 on the right to adequate housing may provide some guidance as to the meaning of retrogressive measures. It provides that a ‘general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant’.20
As a general rule, any adoption of deliberately retrogressive measures through the direct action of states (or other entities insufficiently regulated by states) that affect any ESC rights would likely violate the ICESCR.21 The CESCR emphasizes in a General Comment that there is a ‘strong presumption of impermissibility of any retrogressive measures’ taken in relation to substantive rights.22 Retrogressive measures are then prima facie incompatible with the Covenant; as a result, states have the burden of proof to justify the legality of any such measures with due regard for the limitations provisions of Article 4 of the ICESCR.23 The general limitation clause under Article 4, which stipulates the conditions states parties to the ICESCR have to follow when they limit ESC rights, will be considered in the next chapter, including the question as to whether states can derogate from these rights.
There is little guidance from the CESCR on how expeditious and effective the obligation of progressive achievement should be. In this respect, ongoing developments concern the elaboration of indicators and benchmarks as a means of monitoring and evaluating specific state obligations.24 For instance, in 2008 the Office of the UN High Commissioner for Human Rights (OHCHR) proposed a table of (p.29) indicators for 14 human rights indicators in the areas of civil, political, economic, and social rights,25 which could serve as the basis for the development of specific lists of indicators to be elaborated for each human rights instrument. The OHCHR has since published a comprehensive guide on indicators for measurement and implementation of human rights that extends the application of indicators to a broader range of human rights, including the right to development and the Millennium Development Goals. It bases its analysis on the normative setting of the Universal Declaration of Human Rights (UDHR) rather than merely focusing on treaty-based monitoring.26 It thus extends the indicators methodology to Charter-based monitoring of human rights, such as the Universal Periodic Review of the Human Rights Council (HRC).
Indicators are to be distinguished into structural, process, and outcome indicators. Structural indicators measure the constitutional and other legal settings in relation to particular human rights, whether a particular right is actually legally guaranteed, or whether it is intended to be introduced in the foreseeable future, at the domestic law level.
Process indicators can reflect both (objective) quantitative data and qualitative data, flowing from the components of a particular human right and involving some (subjective) value judgements about the realization of a particular right, such as measuring whether and to what extent action (plans, policies, programmes, laws, administrative or judicial action) has been taken during the monitoring period. For this purpose, process indicators can be used alongside structural indicators.
Outcome indicators, by contrast, will simply address concrete results achieved, giving a ‘yes’ or ‘no’ answer to specific data—for example, actual changes in the maternal death rate in right-to-health or occupational safety issues. Yet it must be remembered that these indicators can only represent tools for evaluating the performance of states in meeting their international human rights obligations. The agreed indicators help to find a common human rights language and help to focus on measurable results, enabling a better and proper assessment of the fulfilment of human rights obligations resting on states.
In detailing the core obligations in relation to substantive rights, the CESCR has started calling upon states parties to identify appropriate and pragmatic indicators and benchmarks. This interaction between an internationally defined principled minimum core developed by the CESCR and a pragmatic minimum threshold to be defined at the national level is an attempt to provide a basis of quantitative clarification of states parties’ obligations.27
The emphasis on legal parameters is based on the assumption that these measures can translate the normative content of human rights into operative information to facilitate implementation and compliance.28 They can provide a monitorable and (p.30) objective assessment of the realization of ESC rights because ensuring, for instance, ‘the right of access to health facilities, goods and services on a non-discriminatory basis’ is a rather vague formulation and does not elucidate the legal parameters of this minimum core content.29
3. A Basic Normative Threshold: Minimum Core Obligations
A. The notion
While all the obligations have numerous ramifications and complex structures, another key aspect in the context of ESC rights is the concept of a minimum core content of all ESC rights. This notion was elaborated by the CESCR in an attempt, first, not to leave states an excessive margin of discretion to interpret ESC rights and, second, to determine when developed states and international actors would be required to assist developing countries in implementing minimum core rights.30
While the ultimate result is to fully implement all the rights, certain elements are considered the most essential or fundamental. This minimum core can be understood as a starting point, an intangible baseline that must be guaranteed for all individuals in all situations and on the basis of which states parties can envisage a progressive realization.31 It has been pointed out in general terms that ‘a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party’.32 This means that were the Covenant to exclude such obligations, ‘it would largely be deprived of its raison d’être’.33 For instance, the CESCR defines the core content of the right to adequate food as ‘the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture; and the accessibility of such food in ways that are sustainable and do not interfere with the enjoyment of other human rights’.
Over the years, the Committee has attempted to identify this minimum core by referring, for instance, to essential foodstuffs, essential primary health care, basic shelter and housing, or the most basic forms of education.34 Reference was (p.31) made to the ‘non-derogable’ nature of the minimum core.35 In the absence of a derogation clause under the ICESCR, the meaning of this term appears to be interpreted in its conventional sense, as indicating that such obligation is of an absolute nature and therefore cannot be further restricted.36 However, it is questionable whether this fundamental minimum level can be considered not to be affected by the qualifying clause ‘progressive realization’ or resource allocation, an issue taken up later in this chapter.37
In spite of the foregoing considerations, the question is still open as to what constitutes the ‘core content’ of each right, because ‘it is one thing to assert that there is a core content of each of the rights enumerated in the Covenant and quite another to define its scope’.38 The question is how to go about identifying these minimum core entitlements flowing from each right under the Covenant.
A concept that could play an important role in understanding this minimum core content is the idea of survival rights.39 Not surprisingly, this notion may touch upon the sphere of civil and political rights in relation to the right to life. From the standpoint of the right to an adequate standard of leaving and the right to health, ‘survival rights’ can be seen as a common denominator for civil and political rights and ESC rights, as they comprise elements from both categories of rights. The HRC has noted that the notion of an ‘“inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that states adopt positive measures’, and that states parties must take all possible measures to reduce infant mortality and to increase life expectancy, through the adoption of measures to eliminate malnutrition and epidemics.40 Thus, in a situation of armed conflict where vulnerable groups are in urgent need of food and medical care, states are required to take immediate action, including the duty to accept (p.32) humanitarian assistance offered by the international community.41 The CESCR, in its Concluding Observations to state reports by Israel, stated:
The Committee repeats its position that even in a situation of armed conflict, fundamental human rights must be respected and that basic economic, social and cultural rights, as part of the minimum standards of human rights, are guaranteed under customary international law and are also prescribed by international humanitarian law.42
It would seem logical to say that the protection of this minimum standard is at the least afforded by the international humanitarian law (IHL) rules governing the protection of civilian populations against the effects of hostilities, such as the prohibition of starvation or duties related to humanitarian assistance.43 It provides ‘an absolute minimum level of protection beyond which no interpretation of the human rights treaties could possibly ever be allowed to go’, even via derogations or limitations.44 Of course, the complementary framework of protection developed under IHL may in certain limited cases be less than that afforded by human rights law. The IHL rules are mainly confined to ensuring emergency relief in the form of health care and life-sustaining services.45 They are less well equipped to deal with matters beyond questions of mere survival. In contrast, under human rights law the standard of protection is typically more elaborate and may reach far beyond immediate vital needs. That being said, IHL provides a comprehensive set of regulations as regards modalities and procedures concerning the delivery of assistance, an issue that will be explored in Chapter 4 on the relationship between ESC rights and IHL.46
Confronted with the difficult task of identifying minimum entitlements that could be of practical use, the CESCR has opted for a more pragmatic approach. Instead of providing guidance to the minimum core content as a theoretical or qualitative notion of ‘the essence of a right’,47 the CESCR has used and developed the term ‘core obligation’ to refer to the obligation necessary to satisfy the minimum core content of the right. The difference between minimum core content of rights and minimum core obligations rests in their level of abstraction: the former (p.33) is defined as a nucleus or essence of a right, while the latter takes the empirical approach and lays down more precisely the legal duties for states.48
An example can be provided in relation to the right to health as defined by the CESCR.49 A limited number of core obligations of fundamental rights must, it is suggested, be abided by in all circumstances (given that they are resource-dependent only to a certain extent). Accordingly, these core obligations can together be considered as a minimum threshold, which includes at least the following obligations:
• to ensure the right of access to health facilities, goods, and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;
• to ensure access to the minimum essential food which is nutritionally adequate and safe so as to ensure freedom from hunger for everyone;
• to ensure access to basic shelter, housing, and sanitation, and an adequate supply of safe and potable water;
• to provide essential drugs, as from time to time defined under the World Health Organization (WHO) Action Programme on Essential Drugs;
• to ensure equitable distribution of all health facilities, goods, and services; and
• to adopt and implement a national public health strategy and plan of action.50
Riedel submits that the minimum core obligation of the right to health can even be regarded as part of customary law or as a general principle of law.51 It follows that this threshold should remain the same in times of both peace and armed conflict. On the right to water, a number of core obligations are included which are presumably of immediate effect:
• to ensure access to the minimum essential amount of water that is sufficient and safe for personal and domestic uses to prevent disease;
• to ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups;
• to ensure physical access to water facilities or services that provide sufficient, safe, and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household;
• to ensure personal security is not threatened when physically accessing water;
• to ensure equitable distribution of all available water facilities and services;
(p.34) • to adopt and implement a national water strategy and plan of action addressing the whole population. The strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right-to-water indicators and benchmarks, by which progress can be closely monitored, and the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all disadvantaged or marginalized groups;
• to monitor the extent of the realization, or the non-realization, of the right to water;
• to adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups;
• to take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation.52
Alston refers to this absolute minimum entitlement, ‘in the absence of which a state party is considered to be in violation of its obligations’.53 This approach revolves around the basic level of subsistence necessary for a human being to live in dignity and represents an attempt to establish a universal standard with regard to the basic elements of ESC rights, which should not be subject to the notions of resource availability and progressive realization.
It should be noted that this theoretical construction of minimum core obligations is both complex and controversial. In spite of the acceptance of this concept in legal theory, the elaboration in practice of its content and strategies remains far from settled. First, this concept of minimum core content does not figure in the text of the ICESCR. It was originally designed by the Committee as a tool in its General Comments to give meaning and content to a number of specific rights in the ICESCR, including the rights to education, food, health, and water, and also the right to work.54 On balance, while General Comments are not binding as such, they still represent a persuasive source of authority because of the expertise (p.35) of the members of the Committee and its long experience of examining state party reports, which tend to apply the criteria developed therein on a voluntary basis, over three decades.55
Second, this approach conveys the idea that the other components of the rights can actually be neglected. However, this terminology should not facilitate misunderstandings on the overall obligations of states and should not provide a basis for reasoning that only this core content would be guaranteed, to the exclusion of the other components of the rights. Article 2(1) of the ICESCR does not imply that a state should disregard the peripheral part of the core scope of a right by arguing that it is complying with its minimum obligation. For instance, the fact that a state is experiencing an armed conflict in its territory does not mean that it might only respect the absolute minimum obligations.
Third, this approach raises questions as to the actual feasibility of determining an internationally defined minimum core that is not subject to the notions of resource availability and progressive realization. Indeed, linking the core content of obligations to the conditionality of Article 2(1), ICESCR whereby the substantive rights are subject to the ‘maximum available resources’ creates some theoretical difficulties. In this respect, there are sometimes contradictions in the practice of the CESCR. While the Committee occasionally states that non-compliance with the core obligations—considered as ‘non-derogable’—cannot be justified ‘under any circumstances’,56 it nonetheless asserts that ‘any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned’.57
At any rate, this interpretation to take into account the resources of the state is actually in line with the treaty text of Article 2(1) ICESCR that endorses this conditionality on the implementation of ESC rights. Indeed, it would be fair to say that even the implementation of the strict minimum core obligations regarding essential foodstuffs or primary health care appears to be far from affordable for many poor countries, to say nothing of those involved in armed conflict in places such as Afghanistan or the Democratic Republic of the Congo (DRC). In those instances, a heavy onus would fall on the state to demonstrate that every effort has been made to use all resources that are at its disposition to satisfy the minimum core obligations, including through international co-operation and assistance.58
This brings us to the fourth point concerning the link between ESC rights obligations and the systemic requirements of resources and economic capability of the state party. In view of the vast divide in terms of economic development, there are (p.36) concerns that not all states can implement the same minimum core obligations during situations of armed conflict and that macroeconomic and social structure may help determine the minimum core content. It seems reasonable, then, to consider that developed states would have to meet higher standards than developing countries, starting from a much lower level of rights realization.
Undeniably, there is a prevalent lack of clarity regarding the exact scope of these obligations, related to the absence of an international mechanism for considering individual petitions on all aspects of these rights. As a result of this procedural deficit, the exact contours of the concrete obligations remain tentative at best. In light of this, it seems important to draw a distinction between the legal obligation binding on all states governing their conduct in terms of obligations of means and the actual enjoyment and realization of these rights. The states are obliged to take measures to address a number of factors, such as economic deprivation, inequality, and other social socio-economic factors, on which the enjoyment of these rights is dependent.
4. Systemic Requirements: The Question of Resources and Economic Capacity
A. The notion of ‘maximum available resources’
The question raised in this section concerns the most difficult and ambiguous aspect of ESC rights laid down in Article 2(1), ICESCR—the obligation to devote maximum available resources. The use of resources does not constitute per se an autonomous obligation of the state, but the principal means to fulfil its obligation to progressively realize human rights. This notion is essential to the economic contingency of the Covenant. Its purpose is, as Abi-Saab explains, ‘de placer le niveau de la prestation sur une échelle variable, en fonction des capacités matérielles des gouvernements’.59
However, civil and political rights also require positive and sometimes very costly measures, such as the rights to a fair trial or to free and fair elections; for instance, ensuring that state agents, such as law enforcement or military personnel, do not interfere arbitrarily with individual’s rights requires financial and material means for training, equipment, etc. This question is also relevant to ensure respect for IHL rules, an issue that has been overlooked in the literature.60 The reality is that the full realization of human rights law is clearly dependent on the availability of resources and the development of the necessary institutional structure to secure a minimum degree of compliance with these rights.
(p.37) Generally, the CESCR, ‘fully respecting the authority vested in relevant State organs to adopt what it considers to be its most appropriate policies’,61 has refrained from giving concrete enunciation on the precise scope of what are the ‘maximum available resources’. The legal doctrine also failed to devise a coherent and clear conceptual framework on how to address the economic determinants of the obligations.
There is no settled view of whether the phrase ‘maximum available resources’ connotes the broad economic capacity of the state or is limited to resources per se as traditionally understood by scholarship, or even to a narrow notion of ‘budgetary allocations’. The prevalent view is that resources are to be understood as meaning government spending.62 For instance, Robertson identifies five categories of resources: human resources, technological resources, information resources, natural resources, and financial resources.63
In any event, the scope is open-ended, as the nature of resources can change over time and differ depending on the context. The problem with these definitions is that they remain rather limited and do not sufficiently take into account the cost structure of securing ESC rights, which goes beyond the simple calculation of government spending.64 For instance, financial resources alone, from among all possible categories of resources, may encompass various policy parameters such as fiscal, monetary, and financial policies and regulations, including debt and deficit financing and development assistance.
The newer generation of commentators suggest that available resources should be read broadly as to include the economic capacity of the state measured by macroeconomic parameters. Dowell-Jones makes the following case:
an identification of ‘maximum available resources’ with State spending […] is highly misleading and inappropriate indicator of compliance with the Covenant. While assuming a simplistic process of realisation of Covenant rights which singularly fails to capture the wide variety of institutional arrangements amenable to realising the Covenant…Firstly, it must be recognised that the costs of realising Covenant rights are not uniquely borne by the State but generally fall upon many different economic actors. Such actors could be firms/ (p.38) employers who bear the costs, inter alia, of complying with health and safety regulations, or the costs of enhanced bureaucracy required to comply with minimum wage legislation, or costs of providing pensions; or individuals as consumers whether of State provided public services which could be offered more cost-effectively in the private sector, or as consumers of privately produced goods and services the costs and availability of which will be affected by the burden of State regulations and corporate taxation, or individuals as taxpayers.65
But this growing understanding of the relationship of rights with broader macroeconomic frameworks is not entirely new. Alston and Quinn raised the central issue that ‘[i]t is the state of a country’s economy that most vitally determines the level of its obligations’ and that this gives an understanding of ‘state’s abilities and from this may be determined the threshold it must meet in discharging its obligations’—without, though, further developing the issue.66 Earlier criticism of this kind stemmed from inside the Committee itself. A former member of the CESCR and economist regretted the Committee’s indiscriminate approach concerning poor developing countries. He noted, speaking of Guinea, that it
was so cruelly lacking in the infrastructure needed to support its economy and afford normal living conditions that it gave an impression of devastation. How could one speak to the Governments of such countries about minimum wages and housing rights? They should be helped out of their absolute poverty, not asked to fulfil requirements. If the Committee did not take cognizance of reality, it could not function properly.
The Committee insisted on applying uniform standards to all countries. Yet laws were not absolute; they were meant to be interpreted by judges who took mitigating circumstances into consideration. Moreover, it was not that Governments were indifferent or unwilling: taking the viewpoint of the economists, wages rose as production rose, not in response to any action by Governments or trade unions. A situation must be understood in terms of what the available resources could bear in relation to the demands being made on them. […] The question was thus not one of will but of absolute means.67
When this configuration is transposed into the context of armed conflict, the economic contingency of the rights becomes even more relevant. For instance, the social unrest in Syria has had a significant socio-economic impact, exacerbating high pre-existing levels of poverty and unemployment. According to the UN Commission of Enquiry, at a point at which the situation in Syria had not yet reached the level of an armed conflict:
(p.39) 34. The economy is estimated to have shrunk by 2 to 4 per cent in 2011, with a markedly higher drop expected for 2012. Tourism, which accounted for 6 to 9 per cent of gross domestic product, has collapsed. The Government has attributed economic concerns to the sanctions and armed groups sabotaging fuel supplies and civilian infrastructure, while maintaining that such concerns can be addressed through economic self-reliance initiatives.
35. Syrians, particularly day labourers and others in precarious employment situations, are feeling the impact of the downturn. In December 2011, the Minister for Labour and Social Affairs announced that the unemployment rate was in the range of 22 to 30 per cent.
36. The boycott on Syrian oil exports, sanctions against the banking sector and reported capital flight have devalued the Syrian currency, spurring inflation. The Ministry of the Economy estimated that, by the end of 2011, prices for basic food items had increased by up to 37 per cent, hurting the poor in particular. The Government sought to offset price increases by raising public sector salaries and extending or increasing subsidies on fuel and other essential goods.
37. People have suffered through an unusually harsh winter, while fuel for cooking and heating has become more expensive and scarce, especially in areas of unrest. Power cuts are frequent in many parts of the country.68
The assessment of a more recent report of the Commission of Inquiry is particularly grim: ‘the conflict has wrought havoc on the economic, social and cultural rights of Syrians. The destruction of infrastructure, housing, medical facilities, schools, power and water utilities exacerbates pre-existing hardships, pushing whole communities to the brink of collapse.’69
This illustration not only serves the purpose of highlighting the intimate links between the economic structure itself and the basic premises of ESC rights, but also identifies various levels at which issues of security and armed violence configure the economy and hence the realization of basic ESC rights.
It needs to be pointed out that incorporating a cost structure as opposed to simply identifying ‘actual’ resources may render preliminary at best the division of obligations pertaining to ESC rights into immediate, progressive, negative, or positive. One has to bear in mind, of course, that originally socio-economic rights were premised on a specific model of the state as the provider of all services. Therefore, attempts to fit the legal parameters of the Covenant to its macroeconomic context seek to give meaning to the treaty in view of contemporary economic realities, a task that remains challenging. Such a proposal remains at (p.40) the level of a recommendation and efforts to link economic development with human rights are an ongoing project, without any firm solution theorized thus far. From the perspective of the present topic, the conceptual indeterminacy may be deemed to be the first main challenge of applying the ESC rights in conflict-affected states.
B. The question of priority in resource allocation
Proceeding from the previous section, it is now appropriate to clarify the parameters of the obligation to devote ‘maximum available resources’, understood in a narrow sense. There is a presumption of the state’s discretion in determining what resources are available and when to dedicate them to concerns regarding socio-economic rights.70 In effect, the duty to accord due priority to the implementation of these rights leaves a wide margin of discretion for the state.71 This presumption must be put in proper perspective, however. In their analysis of the travaux préparatoires, Alston and Quinn conclude that it was clearly the intention of the drafters not to leave the determination of what constitutes adequate resource allocation entirely to a state party’s subjective determination.72 To subscribe to a contrary position might raise a question ‘as to why it is necessary, or even appropriate, to have an international treaty if each state party is only to be held accountable, with respect to the central element in the obligation, to itself’.73
The doctrine is cautious about drawing firm conclusions on the extent of states’ discretion on the subject. Who else is in the position to properly assess the levels of resources necessary to meet the minimum level of socio-economic rights of population within a nation-state other than the state itself? It has been remarked that an international body, such as the CESCR, cannot substitute its judgement for that of the government of a state where resource allocations are being made. The CESCR neither has the expertise nor the capacity in terms of the availability of information to assess the entire budget of a state, even less the macroeconomic parameters that (p.41) would allow a determination of what these available resources are.74 It can only judge ‘whether the process of decision-making demonstrates awareness and respect for ICESCR rights’.75 This reasoning has been reflected in the approach of certain human rights treaty bodies relating, for instance, to military expenditure—a question related to conflict situations, which will be dealt with further below.
This is certainly a very complex issue, but it is worth considering whether general principles can illuminate this subject. The Maastricht Guidelines find that the failure ‘to utilize the maximum of available resources toward the full realization of the Covenant’ entails violation of socio-economic rights.76 This level of generality and oversimplification on the part of the ESC rights ‘experts’ is not very convincing.
In its formal statement in 2007 entitled ‘An Evaluation of the Obligation to Take Steps to the “Maximum of Available Resources” under an Optional Protocol to the Covenant’, the Committee identified socio-economic needs as a priority for the state’s resource allocation, but only in general terms.77 It stressed that:
In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.78
What the CESCR does seem to imply in its articulation of the nature and scope of state party obligations is that socio-economic rights should be given priority in allocation of resources. This seems to find support in the fact that when using the ‘resource constraints’ argument for not fulfilling their obligations under the Covenant, states would be asked to provide an explanation.79 Three further indicia can be of use to assess whether considerations of socio-economic rights can in any way impact the state’s discretion to freely dispose its ‘available’ resources. The CESCR has clarified that in assessing whether resources are ‘adequate’ or (p.42) ‘reasonable’ for the purpose of compliance with obligations, it will consider, inter alia:
• whether the state party’s decision (not) to allocate available resources is in accordance with international human rights standards;
• where several policy options are available, whether the state party adopts the option that least restricts Covenant rights; and
• whether the steps had taken into account the precarious situation of disadvantaged and marginalized individuals or groups, whether they were non-discriminatory, and whether they prioritized grave situations or situations of risk.80
These indicia have led some to conclude that ‘the obligation to use the “maximum of available resources” also implies a prohibition against diverting resources from ESC rights related issues to non-ESC rights related issues’.81 But one should not be tempted by this quick conclusion. A more plausible interpretation could be that the adequacy of resources allocated to ESC rights would be judged against other expenditures.82 Rather than interpreting general indicators developed by the CESCR as an endorsement of the principle of priority of human rights, Pisillo Mazzeschi instead points out to another principle that has taken shape, ie the principle of balance of interests:
il en ressort un autre principe, moins fort par rapport à celui de la priorité des ressources destinées aux droit de l’homme […]: celui du ‘critère raisonnable’ à suivre dans la recherche, de la part de l’Etat, d’un équilibre entre les ressources destinées aux droits de l’homme et les ressources destinées à d’autres intérêts étatiques primaires. Au fond, les indicateurs élaborés par le Comité apparaissent tous implicitement inspirés de ce principe de l’ ‘équilibre raisonnable des intérêts’.83
In contrast to the CESCR, the Committee on the Rights of the Child (CRC) has paid greater attention to the identification and analysis of resource allocation (p.43) in national and other budgets.84 In its periodic reporting Guidelines, the CRC requires states parties to indicate the measures taken within the obligation of using maximum available resources by providing information on the proportion of the national budget devoted to social expenditure for children, including steps taken to ensure that all competent authorities ‘are guided by the best interests of the child in their budgetary decisions and evaluate the priority given to children in their policy-making’.85 Taken together, a possible interpretation can be that a standard of performance for states parties in the area of resource allocation is to prioritize human rights obligations in all circumstances; however, difficulties remain regarding the prioritization of expenditures across sectors (eg health v education).
C. Assessing states’ level of compliance: factors or impediments
A series of factors have been designed by the CESCR to assess a state’s level of compliance to meet its obligations to take steps to the maximum of available resources when the Committee will/would examine future communications (under the Optional Protocol) concerning this general obligation of progressive realization. These include:
(a) the country’s level of development;
(b) the severity of the alleged breach, in particular whether the situation concerned the enjoyment of the minimum core content of the Covenant;
(c) the country’s current economic situation, in particular whether the country was undergoing a period of economic recession;
(d) the existence of other serious claims on the state party’s limited resources, for example, resulting from a recent natural disaster or from recent internal or international armed conflict;
(e) whether the state party had sought to identify low-cost options; and
(f) whether the state party had sought co-operation and assistance or rejected offers of resources from the international community for the purposes of implementing the provisions of the Covenant without sufficient reason.86
(p.44) In most cases, all of these internal and external factors are relevant for conflict-affected states.87 The point here is that armed conflicts have many overall effects on a country far beyond the area surrounding the actual hostilities. And the majority of these states are not developed states, but low-income countries with difficult economic situations. It has been documented that deprivation and other indirect causes kill a greater number of civilians than those who die as a direct result of the armed conflict, such as has been the case in Afghanistan, Darfur, and DRC.88
Generally, the existing literature by political scientists and economists agrees that conflict retards economic growth and development in a variety of ways,89 and it should be stressed that this is not limited to internal armed conflict and other situations of violence. It is also a matter of fact that a state of belligerent occupation does not create the necessary conditions for the realization of ESC rights.90 For instance, the long-lasting (24-year) military occupation of East Timor by Indonesia is evidenced by poor allocation of resources and investments, and it comes as no surprise that East Timor ranked as one of the poorest countries in the world in 1999, with high levels of infant mortality or chronic malnutrition—far above the levels of the occupying power itself, Indonesia.91
Thus, depending on the country, armed conflict means severe economic and social crisis, implying that any available resource might be minimal. This raises important questions as to what ESC rights obligations might realistically mean and whether the CESCR can meaningfully contribute to such an understanding, (p.45) beyond the mere acknowledgment of the ‘factors and difficulties’ impeding the implementation of the Covenant.92
In line with a constructive dialogue with states parties, the CESCR has recognized the adverse impact of conflict situations in the state’s ability to fulfil its obligations under the Covenant and has used terms such as ‘obstacle’ and ‘impediment’. This terminology gives the impression, however, that responsibility cannot be attributed to anyone, as if the events and related adverse consequences for the well-being of the population are deemed to be beyond anyone’s control.
Where the state is compromised or dysfunctional, as a practical matter it might become difficult if not impossible for the international community to hold it accountable for a failure to fulfil its obligations. Where can we draw the line between inability/impediments and unwillingness? The problem is complex: what can be argued is that there can be no straightforward reliance on either the inability or the unwillingness paradigms, but a combination of both is required.
Generally, finding a breach of an international obligation by a state through a series of omissions poses greater challenges than the direct responsibility for an action. It is well known that causality is not easily established between the conduct of omission and a given situation.93 It will depend on the circumstances of the case—but it should be noted again that the Covenant continues to apply even in times of emergency, which cannot be used as an escape hatch. As a principle, even when public order cannot be restored and when available resources are demonstrably inadequate, the burden of proof falls on the state to prove that it has done everything it can to comply with its obligations. The ICESCR is a binding international instrument and states parties must perform their obligations in good faith.94 As the CESCR has stated: ‘it is precisely in situations of crisis, that the Covenant requires the protection and promotion of all economic, social and cultural rights, in particular of the most marginalized and disadvantaged groups of the society, to the best of its ability under the prevailing adverse conditions.’95
Despite an inevitable level of abstraction of the minimum standard, Kälin noted that armed conflict may indeed reduce available resources so that the guarantees of the ICESCR may only apply ‘to a limited extent’, but these must not fall below the minimum core—understood as essential foodstuffs, primary health care, basic (p.46) shelter and housing, and the most basic forms of education—without a proper justification.96
The normative structure of ESC rights remains very fragile because of its context-specific nature. The law as it stands does not provide all the answers, no matter how elaborated and refined the progressive realization clause may become. The problem here is that we can only remain at a level of generality and must recognize the limits of what a legal framework can provide, at this stage, to assess the level of awareness and respect for ESC rights. This being said, human rights bodies have raised concrete questions to assess states’ level of compliance with their obligations, especially when they use ‘resource constraints’ as an explanation for any retrogressive steps taken, for instance, with regard to military spending.
D. The effect of militarization on resource allocation
It is an established fact that the militarization of the economy is a major element in diversion of national resources, especially in low-income countries. During the preliminary discussions and then, in July 2012 and March 2013, the formal negotiations of the UN Arms Trade Treaty (ATT),97 among the broad categories of criteria for denying a proposed arms transfer, a majority of states supported the inclusion of a criterion related to the socio-economic impact of an arms transfer on the recipient state. Although the criterion was deleted in the final treaty text as adopted due to opposition from a minority of important states,98 it is worth reproducing it:
In making this assessment, each exporting State Party shall consider taking measures, including joint actions with other States involved in the transfer, to reduce the likelihood of the conventional arms: […] seriously undermining the socio-economic development of the importing State, taking into account its legitimate domestic and security defence needs.99
(p.47) The criterion invoked in the ATT negotiations—to be considered by the sending state—refers to the opportunity costs for socio-economic development that are involved in arms acquisitions.100 The idea behind it dates back to a past debate on disarmament and development and the principle of ‘least diversion of the world’s human and economic resources’ flowing from the UN Charter and the current practice of regional arms control initiatives.101
That military spending and arms acquisitions may have adverse consequences on the protection and fulfilment of ESC rights is entirely predictable. It is well known that in conflict-affected states, the practice of public expenditure is often driven by a security and military agenda. A tension thus arises between competing priorities such as state security, because the state is involved in active hostilities (insurgency, civil war, etc.), and socio-economic rights.102 This practice can adversely impact human rights by diverting funds from resources necessary for health, education, and other social services.103 However, states’ views during the ATT seemed to indicate that they considered this question as a developmental challenge rather than (p.48) a human rights issue. Apart from the African system of human rights, there is no expressis verbis rule of conventional international law requiring states to prioritize spending on socio-economic rights over military expenditure. In fact, there is no generally recognized and universal norm that obliges states to limit their armaments.104 Thus, the level of a state’s armaments generally remains the subject of its sovereign prerogative, unless otherwise specified by an international agreement or by the UN Security Council decisions under Chapter VII of the UN Charter (eg arms embargoes).105
But the lack of a specific human rights obligation directly relating to military expenditure has not prevented UN human rights bodies from sometimes expressing opinions about it. The CESCR, the CRC, and several thematic and country Special Rapporteurs have raised the relevance of military spending in relation to resources available for socio-economic rights in their work. Although the practice of these monitoring bodies is not yet fully developed, by examining their concerns and recommendations it is possible to delineate circumstances giving rise to the question of resource allocation in relation to ESC rights.106
For instance, in the DR Congo, the continuous decrease over the past decade of resources allocated to social sectors, notably health and social protection, in comparison to the increased budgetary allocations to defence and public security, has been singled out by the CESCR.107 On one occasion, the Committee pointed out the ‘ratio’ (difference) between military spending and resource allocations for social services, noting ‘the considerable military expenditure in contrast to allocations to education and health’.108
Similarly, on Sudan, the Committee expressed its concern ‘over the marginalisation of social sector spending, as indicated by the considerable military expenditure in contrast to allocations for health and education’.109 The situation in Afghanistan is even more complicated due to the fact that the majority of decisions on allocation of resources are not in the hands of the government of Afghanistan. With low (p.49) government revenues, international assistance constitutes around 90 per cent of all public expenditure in the country, and this vast amount of resources is said to be defined more by military priorities than by the development and humanitarian needs of Afghans, according to a recent UN report.110
The practice of UN Charter-based bodies is far more limited on these issues. Special Rapporteurs on Iraq,111 on Myanmar,112 on the rights of women,113 and on education114 have dealt with resource allocation with reference to military spending.
The diversion of resources has also received attention in the context of counterterrorism activities. The UN High Commissioner for Human Rights issued a report on the protection of human rights and fundamental freedoms while countering terrorism that addressed the practical effects of national and international counterterrorism measures on socio-economic rights. The report pointed out that reallocation of resources toward security and counterterrorism can have additional negative consequences when resources are drawn away from programmes that contribute to the implementation of ESC rights, such as those in the health or education sectors.115 In this context it recommended that in developing counterterrorism legislation, policies, and measures, states examine their impact on (p.50) ESC rights and ensure that ‘all the requirements relating to their protection are respected’.116 Their impact ‘should also respect the principles of proportionality, effectiveness and legitimacy’.117
The African system of human rights, notably through the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, has gone a step further. Better known as the Maputo Protocol, this instrument recognizes the ‘right to peace’ in its Article 10.118 Remarkably, within this framework, the Protocol introduces a specific obligation on states parties to ‘reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular’.119 The language here is clearly intended to obligate states parties to prioritize the realization of socio-economic rights generally and to allow for evaluation of the state budget in a continent where the misallocation of state resources by many leaders has been recurrent.120
This far-reaching provision constitutes a radical departure from existing human rights norms which distinguishes this regional instrument of human rights. For the first time, an international human rights treaty introduces a hierarchy of domestic budgetary priorities, with potentially significant implications. It must be read as an obligation upon states parties to provide budgetary resources to ensure the effective implementation of all the rights set forth in the Protocol.121 In addition, as treaty law, it can in theory form a basis for examining and reviewing allocations of resources by states parties by the African Commission or the African Human Rights Court.122 A more enticing question is how the provision will be enforced, given the potential tension the question may invoke and the judiciary’s general resistance toward addressing matters involving national security.
(p.51) 5. Scope of Specific Legal Obligations under Human Rights Law
A. Preliminary considerations
The implications of the distinction between immediate obligations and obligations of progressive realization can be examined within the tripartite typology of obligations to respect, protect, and fulfil.123 This conceptual framework has developed based on the recognition that all human rights impose three main obligations on states parties.124 It has entered the doctrinal analysis of human rights law in general while allowing a concretization of ESC rights, stepping outside the vague formula of Article 2(1) to prove that ESC rights, just as civil and political rights, are not only justiciable but can also be operationalized in all settings, including armed conflicts.
Conceptually, the obligation to respect requires states not to arbitrarily interfere with the enjoyment of the rights. The obligation to protect requires states to take measures that prevent third parties to interfere with the rights. And the obligation to fulfil requires that states adopt appropriate legislative, administrative, budgetary, judicial, promotional, and other measures toward the progressive and full realization of these rights. In determining the state’s specific scope of obligations, this framework can serve as a useful basis to interpret standards relating to ESC rights violations.
This calls for three comments. The first is that this approach is not derived from the treaty text of the ICESCR, as compared to Article 2(1), ICCPR, which reads that ‘[e]ach State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction’. Nowak interprets the word ‘to ensure’ in Article 2(1), ICCPR as incorporating the positive obligations to protect and to fulfil.125 The idea behind this categorization was to show that both negative and positive obligations derive from ESC rights and civil and political rights to support the proposition that socio-economic rights are legal rights.126
(p.52) Second, the framework builds on the assumption that the obligation becomes progressively more proactive and resource-dependent when moving from the obligation to respect to the obligation to fulfil. However, it should not be suggested that the obligation to implement negative obligations not to interfere arbitrarily with an individual’s right does not require any resources: this would be simplistic and rather misleading. As noted above, the reality is that the implementation of all human rights obligations necessitates the creation and maintenance of workable institutional machinery, which inevitably requires resources.
Third, each type of legal obligation toward individuals or group of individuals can be subject to violation of ESC rights. In terms of acts and omissions in the context of armed conflict, there might be considerable overlaps between a state’s human rights obligations on the one hand, and humanitarian law on the other. In this respect, many of the violations taking place in this setting concern the failure to respect and also protect ESC rights, either by the state’s prohibited interference with the civilian’s access to health, housing, food, or education, or by its failure to protect civilians against third parties, such as armed non-state actors. Destruction of public and private properties, burning of homes, forced displacement, or attacks on school or medical buildings are situations which could potentially constitute violations of civil, political, economic, and social rights, as well as IHL (when applicable).127
B. Obligation to respect
The first level of obligation—the duty to respect—implies refraining from interfering directly or indirectly with the enjoyment of a particular socio-economic good or benefit by every individual under the state’s jurisdiction.128 It is now generally accepted that these rights entail obligations with immediate effect. Like civil and political rights, ESC rights can be viewed as freedoms and liberties that are to be respected and protected by state authorities. The obligation to respect requires states parties to avoid measures that hinder or prevent the enjoyment of ESC rights generally. The interpretation by human rights bodies in much case law of this obligation in a conflict situation is found in the practice not only of treaty bodies, but also of the International Court of Justice (ICJ) and regional human rights courts.129
(p.53) They impose a number of negative obligations, which in most cases may not be subject to progressive realization.130 These obligations apply fully and immediately and are just as binding and of the equivalent level to those under the civil and political rights Covenant. It should be added that, like any human rights obligation, this entails the adoption of positive measures to prevent interference with such rights in establishing the required institutions, and an effective system of administration of justice to conduct proper investigations and remedy any deprivation by state agents.
To illustrate this level of obligation, mention can be made of the obligation to respect the right to health requiring abstention ‘from denying or limiting equal access for all persons […] to preventive, curative and palliative health’ or to abstain from enforcing discriminatory practices as a state policy,131 while the obligation to respect the right to work prohibits forced or compulsory labour.132 The forced or compulsory recruitment of children for use in state armed forces is prohibited under various international instruments and may also constitute a violation of the right to education of every child.133
As regards the right to an adequate standard of living under Article 11, which includes food, clothing, water, and housing as well as the continuous improvement of living conditions, the obligation to respect the right to food requires states, for instance, not to repeal or suspend legislation necessary for the continued enjoyment of the right to food and not to deny access to food to particular individuals or groups, whether the discrimination is based on legislation or is proactive, and not to prevent access to humanitarian food aid in internal conflicts or other emergency situations.134
With regard to the right to adequate housing, there is a general obligation not to arbitrarily or unlawfully evict someone from her/his home.135 Forced evictions, without proper compensation and resettlement options, can be interpreted as a violation of the right to home, property, family, and private life.136 The practice (p.54) of the Human Rights Committee (HRCte) has further reinforced this permeability of human rights obligations. In interpreting the right of persons to be free from arbitrary or abusive interference with the home (Article 17) of the ICCPR, the HRCte proclaimed in its General Comment that ‘States Parties are under a duty themselves not to engage in interferences inconsistent with Article 17 of the Covenant and to provide the legislative framework prohibiting such acts by natural or legal persons’.137
In recent Concluding Observations on Israel concerning the occupation of the Occupied Palestinian Territories (OPT), the HRCte has held, for the first time, that the denial of access to water and sanitation was a violation of the right to life and the right to equal protection under the ICCPR.138 The Committee called upon Israel to cease its practice of collective punitive home and property demolitions and to review its housing policy and issuance of construction permits with a view to implementing the principle of non-discrimination regarding the Palestinians, while increasing construction on a legal basis for them in the West Bank and East Jerusalem.139
Another important point to recall is that ESC rights are of course not absolute. States do have a wide margin of appreciation to give effect to human rights and freedoms, while contemporaneously pursuing important objectives designed to solve conflicts between rights or to protect the society for reasons of public interest such as public order, public health, or national security. In situations of armed conflict and other situations of armed violence requiring security measures, states are allowed to restrict certain human rights, and ESC rights are no exception. There are in fact certain situations that may call for exceptional measures by the state to combat armed groups that resist law enforcement personnel or regain control over certain disputed areas. This can be considered as a legitimate purpose that can justify certain restrictions, following of course a number of legal requirements, which will be discussed at length in Chapter 2 of this book.
(p.55) (ii) Use of force against civil infrastructure
The questions relating to the use of force either in the law enforcement or the conduct of hostilities paradigms need further examination. It is important to clarify that perhaps not all events or forcible actions against services or infrastructure by actors attributable to a state can be characterized as violations of the obligation to respect ESC rights, no matter how disruptive they can be for the general well-being of a given community.
The fact that disproportionate or excessive destruction and appropriation of protected property under IHL not justified by military exigencies can be a serious violation of IHL and may constitute a war crime in any armed conflict does not automatically qualify it as a violation of ESC rights. IHL rules may sometimes overlap with ESC rights but they are not necessarily coterminous with one another. For instance, the unlawful destruction or the arbitrary seizure of private housing under IHL does not necessarily amount to an interference with the right to housing of an individual if the object does not correspond to her or his formal residence.140 Similarly, unlawfully directing attacks against an educational building may constitute a war crime, but may not concurrently qualify as a violation of the right to education. So what elements would be necessary to qualify the act as a violation: the attack itself or the level of physical damage to the building? For Schmid, the commission thereof ‘will often simultaneously hamper the right to education’.141 However, it is argued that qualifying such a factual act as ‘hampering’ the right may avoid answering the hard-hitting question: does this act constitute a violation in and of itself of the right to education or not? Phrasing it in terms of ‘obstacle’ or ‘impediment’ does not necessarily bring further clarity to the issue.142
In each circumstance, there is a need to look at the normative content of the right in question. For certain rights, the developments of interpretative standards relating to ESC rights violations may provide elements for a general answer, even though it may be difficult to infer a general interpretation applying across all ESC rights.
In this context, great caution is called for throughout the present analysis on the causal link between the acts and the victims, since human rights law does not protect civil infrastructure or ‘objects’ as such. In fact, human rights law treaties—as opposed to IHL instruments, which also generally protect civilian objects and (p.56) property—aim to protect and promote individuals’ rights. As such, their provisions do not confer any status on nor directly protect objects or buildings (eg food crops or educational buildings).
However, certain essential elements of ESC rights do require the existence, maintenance, and availability of physical structures.143 The element of availability requires the state to ensure that facilities, goods, or services/programmes developed and implemented are available to all in sufficient quantity.144 For example, under the right to education, states parties have to make available ‘functioning educational institutions and programmes’, or under the right to health ensure the ‘functioning public health and health care facilities, goods and services as well as programmes […] in sufficient quantity’.145 As availability or access represent one of the main elements composing these rights, logically their physical protection may be implied or presumed.
Considering a situation of belligerent occupation, the Special Rapporteur, in his 1992 report on the human rights situation in Kuwait, then occupied by Iraq, highlighted that blocking access to relevant institutions or dismantling or destroying essential foodstuffs, the health care system, or private housing has to be interpreted as a violation of the duty to respect, as meaning ‘the obligation not to destroy minimal essential levels of economic, social and cultural achievements’.146 In a similar vein, the ICJ, in its Wall Advisory Opinion, generally held that the destruction of livelihoods and requisition of properties pertaining to individual or legal persons interfered with the right to work and to an adequate standard of living, including the right to food.147 Following this reasoning, does the deliberate destruction (p.57) of a factory qualify as a violation of the right to work of the employees who may find themselves jobless? That the state has a general positive duty under Article 6, ICESCR to assist and support individuals in order to enable them to identify and find available employment may be straightforward; however, it remains questionable whether the attack and subsequent destruction or damage bears any relevance to the right to work.148 International practice is insufficiently developed to provide clear answers.
With regard to the right to water, under the heading ‘obligation to respect’, the CESCR instructs states parties that this right embraces those obligations by which states are bound under IHL. The obligation requires that states parties refrain
from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law.149
However, it remains unclear whether the deliberate destruction of a cultural property, prohibited under the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and protocols,150 would per se amount to a violation of the right to take part in cultural life under Article 15, ICESCR. In General Comment No 16, the CESCR stipulates that the right to take part in cultural life requires from the state party ‘both abstention (i.e., non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods)’.151
In light of this, it could be reasonable to hold that direct attacks against cultural property could violate this right if the attack results in damage to or destruction of the property. However, the mere destruction of a cultural object, regardless of its (p.58) cultural importance, may not impede individuals’ right to take part in cultural life. The question is debatable.152
This overview calls for three main comments. First, it seems that the damage/destruction to water services, foodstuffs, health care facilities, or agricultural infrastructure may qualify as a direct violation of ESC rights to the extent that individuals rely on them for their survival either as source of income or basic livelihood.
Second, the scarcity of the legal reasoning of the above-mentioned practice illustrates how these restrictions could be assessed in light of the general limitation clause.153 This aspect will be examined in Chapter 2 of the present study, which aims to provide some guidance on the parameters of the lawfulness of restrictions under the ICESCR.
Third, ESC rights seem to encompass those obligations by which states parties are bound under IHL. Perhaps the question arises as to the influence of IHL on ESC rights. To what extent can IHL rules on targeting civilian ‘objects’ be taken into account for assessing the negative obligation to respect ESC rights? There is therefore a need to further investigate the question and see whether the intersection of ESC rights with IHL may provide any meaningful response. This will be taken up in Chapter 4.
There is thus only a presumption that excessive, disproportionate, or indiscriminate use of force involving damage or destruction of structures or objects such as property, health care facilities, private housing, food crops, water services and infrastructure, educational buildings, or cultural objects may amount to violations of ESC rights. The legal assessment would depend on the factual circumstances and the relevance of that structure for the enjoyment of ESC rights, in addition to the relationship with IHL rules. The nuances of ESC rights make the development of a universally applicable formula or list of possible ESC rights violations rather tentative, pending the possible clarification, although remote, of this aspect of ESC rights under the OP-ICESCR in the consideration of individual complaints.
C. Obligation to protect
The second level of obligation—the duty to protect—is understood to require a state to prevent third or private parties from interfering with the enjoyment of rights. Most of the rights (and the extent of protection mentioned above) concerning the obligation to respect ESC rights are valid for this obligation to protect.
The scope of this duty varies according to the human rights concerned, but generally it requires legislative measures as well as measures to prevent, investigate, and punish actions by third parties that undertake such deprivation. This tends to leave an important margin of appreciation to the states concerning the manner in (p.59) which to protect the right concerned, provided that the measures or mechanisms in place are objectively capable of providing the required protection.154 As such it can be of immediate effect, but may require ‘positive budgetary measures’ to be achieved progressively.155 This can be very challenging, especially in developing countries, such as the DRC, where magistrates, prosecutors, and investigators who have the duties to carry out such investigations are poorly trained, and have often little or no resources.156
Under the obligation to protect, the state could be held responsible for failing to prevent or punish violations of ESC rights committed by non-state actors. Several judgments and reports issued by human rights bodies have held states responsible in the area of civil and political rights (such as the right to life, the right to physical integrity, the right to freedom from torture, the right to a home, etc.) because of the lack of due diligence to prevent the violation committed by these actors or to respond to it.157
In conflict situations, the obligation to protect entails that the state must take appropriate measures to prevent, for instance, non-state actors—whether individuals, criminal gangs, armed groups, paramilitaries, or private companies—depriving civilians of their rights, attacking civilians, using terrorist acts, or depriving the population of access to essential goods and services. Included in these are also multinationals and transnational corporations in the field, for instance, of the extractive industry.158 The state has an obligation under the OP-CRC to legislate to prohibit the forced recruitment of children by armed groups and to criminalize such behaviour, which complements the right-to-education provisions in the ICESCR.
Similarly under this right, there is an obligation to protect ‘accessibility of education by ensuring that third parties, including parents and employers, do not stop (p.60) girls from going to school’.159 Armed violence and attacks can affect educational buildings, but they may also render the travel of students and education staff to and from school more risky.160 The security of students, teachers, education officials, and also humanitarian education aid workers has been threatened in many armed conflict situations, such as those in Afghanistan or Iraq, especially by armed non-state actors.161 In this respect, physical accessibility in times of conflict may be rather challenging for the state in seeking to discharge its obligations.
It is not clear what specific behaviour is expected given the circumstances: provide children with a security escort to school? Shorten the distance between households and schools? Close the school and provide alternative education? The point here is that, while it is clear what the obligation of result is (ie to provide compulsory primary obligation at all times), the means to achieve this result remain vague.
For instance, does the killing of doctors and medical students in an attack carried out by an armed group in Somalia raise a right-to-health question, bearing in mind that according to the International Committee of the Red Cross (ICRC), these deaths represent ‘more than 150,000 consultations per year that will not take place as a result of that single attack’?162 The fact that the law protects the right to an adequate standard of health at all times does not mean that this right directly protects health professionals, as is the case under IHL concerning protected persons.163 This incident may engage the responsibility of the government for the failure to protect the right to life of the victims. With regard to the right to health, the state is obviously under a continuing obligation to do all it can to provide at least essential primary and urgent health care. This implies the requirement to take active measures to guarantee access and availability through a variety of measures to build, maintain, and—when damaged—repair its health care system.
All in all, a state is required to take reasonable steps to protect the rights in question in light of the relevant considerations at hand whenever the threat of violence is an obstacle to enjoying socio-economic rights.164 In Darfur, the Commission of Inquiry held the state of Sudan responsible for its failure to protect the civilian population by tolerating actions (including looting of property and livestock, as (p.61) well as deliberate destruction and burning of villages resulting in forced displacement) taken by the militia (who benefited from impunity).165
D. Obligation to fulfil
The general obligation to fulfil socio-economic rights contains obligations to facilitate, provide, and promote. They are more difficult to define and circumscribe. The obligation demands an active role by the state in adopting the necessary measures and material resources directed to the full realization of ESC rights. The obligation to facilitate (or promote) requires states to take positive measures aimed at enabling and assisting individuals to enjoy ESC rights. The precise duty will depend on the specific circumstances of the state but will generally involve the creation of institutional machinery essential to the realization of rights. This can take a variety of forms and echoes the phrase ‘all appropriate means’ within Article 2(1) of the ICESCR. In general terms, states are required to create legal,166 institutional,167 administrative, and procedural conditions, as well as to provide material benefit for the realization of certain rights without discrimination.168
It is important to factor in the issues of discrimination and marginalization when considering resource allocation. These are prevalent causes not only of conflict, but also of major violations taking place in those situations.169 For example, in relation to Afghanistan and Sudan, the CESCR pointed out the many disparities in the allocation of resources and provision of basic services from the central government for reasons of geography, socio-economic conditions, and gender.170 In the case of Sudan, the CESCR raised concerns over the gross disparities between the central and other regions of the country, including Darfur, where the peoples of Darfur were discriminated against and marginalized and thus excluded from receiving social services normally provided by the state, such as education and basic medical care.171 This conduct on the part of states could be qualified as a violation (p.62) of the obligation to fulfil and the principle of non-discrimination (Article 2(2), ICESCR).
In addition, the obligation to provide entails that the state must provide the right directly whenever an individual or group is unable, for reasons beyond their control, to provide for themselves. In this context, violation of ESC rights could occur because of the government’s calculated indifference and deliberate failure to act or to take any steps whatsoever to fulfil a duty where it has a positive duty under international law and where the failure has harmed the individual. In more concrete terms, the inadequate provision of emergency aid to the civilian population exemplifies a failure of the duty to fulfil the right to an adequate standard of living.
It is important to understand that in determining whether a state is truly unable to fulfil its obligations under human rights law, it is necessary to consider both the resources existing within a state and those available from the international community.172 The state can violate the right to be free from hunger when it does nothing, or does not do enough, to mitigate a food shortage, for example when it fails to seek international assistance.173 This is consistent with comments made by several states that ‘if an affected State cannot discharge its obligation to provide timely relief to its people in distress it must have an obligation to seek outside assistance’.174 In the context of humanitarian assistance, IHL explicitly affirms that states have an obligation to grant free passage to humanitarian relief and to facilitate the work of the humanitarian agencies and the distribution of food aid.175 The concurrent protection of IHL rules on humanitarian assistance and ESC rights are briefly discussed in Chapter 4.
Following the hostilities between Israel and Hezbollah in 2006, more than 100 schools were either destroyed or damaged. The Commission of Inquiry established by the HRC extended its analysis of the human rights positive obligations of the Government of Lebanon to take all necessary measures to ensure the protection of the civilian population. This included, inter alia, the reconstruction and repair of housing or schools and the provision of adequate health care to the victims.176 The (p.63) following passages provide a good illustration of what measures can be reasonably expected from the state:
284. The right to life also requires for the State party to undertake all efforts to provide health care for all children, including the wounded. Access to health (art. 24 of the Convention on the Rights of the life) is an important issue, because of the disruption of the health system during the conflict and the damage caused to many medical facilities. In addition, as a result of the conflict, many children will be disabled for life. This will require the Government of Lebanon to take all necessary measures to ensure physical rehabilitation for the wounded (art. 39 of the Convention) and to grant special measures of protection to disabled children (art. 23 of the Convention). […]
288. In the circumstances, the start of the school year was delayed by some three weeks, until 16-18 October 2006, to allow time for repair, restoration, disinfection, clearance of debris and refurbishment of school buildings. The costs of this were estimated at US$ 44,000,000. Major support came quickly for early recovery efforts, in particular from the United Arab Emirates, focusing on rehabilitation of schools and provision of basic equipment. This was accompanied by a Back to School campaign led by UNICEF and the Ministry of Education.
289. Thus it was reported that 85 per cent of children in primary education were able to return to school by 18 October. As for the other 15 per cent, it is still not clear how they will continue with their education. Specific problems were encountered in those areas worst hit, particularly along the Blue Line, where children were attending school in neighbouring villages, using double shifts when necessary, as their own schools had been completely destroyed. The issue of displacement continued to contribute to the problem, as there were still an unknown number of children, and teachers, living far from their family homes; thus, some schools were more empty than usual, while others were overcrowded and still others were missing teaching staff. The full picture would only be known as the year progressed.
308. Due to the number of housing units which were partially damaged or completely destroyed, the reconstruction and compensation process will be a major issue over the months and even years to come and will require huge financial and human resources.
309. The Commission was told that the Government of Lebanon is intending to provide a number of prefabricated housing units which, it is feared, might have a deleterious effect on sustainable housing solutions for the affected. In addition, as the winter season is approaching, there is a real need to help people to winterize their houses and to find adequate housing for those who do not have so far.
310. In addition, the Commission is concerned at the discrimination which might result from the various approaches to the reconstruction process. Indeed, the fact that some villages have been ‘adopted’ by donor countries, while others might have been left aside, may amount to discrimination. Moreover, due to (p.64) the number of organizations and government departments working on reconstruction, duplication of work will probably arise.177
Practice in the field of civil and political rights instrument may provide another means of interpretation of this general obligation. When considering the report on Israel referred to above, the HRCte stressed the positive obligations to take a variety of measures, based on the right to life and the principle of non-discrimination, to ensure ‘that all residents of the West Bank have equal access to water, in accordance with the World Health Organization quality and quantity standards’ and to ‘allow the construction of water and sanitation infrastructure, and wells’.178
Another major development is found in the case law of regional human rights courts. A number of cases concern the failure of states to discharge their positive obligations, through civil and political rights, to provide a sanitary environment, housing, health care, and employment to the internally displaced.179 For instance, in cases concerning indigenous communities, the Inter-American Court construed the ‘right to life’ in the broader meaning of a ‘right to life with dignity’ and took an important stance on issues of health, education, housing, food, and access to drinking water.180 By giving a broad interpretation of the right to life, be it collective or individual, the Court developed a number of measures to be undertaken by states to protect and preserve the lives of individuals falling within their jurisdiction. In the dictum of the Sawhoyamaxa case (concerning indigenous peoples in Paraguay deprived of their lands without adequate access to education, food, clean water, and medical attention), the Court interestingly first engaged in consideration of the social cost of the right to life:
It is clear for the Court that a State cannot be responsible for all situations in which the right to life is at risk. Taking into account the difficulties involved in the planning and adoption of public policies and the operative choices that have to be made in view of the priorities and the resources available, the positive obligations of the State must be interpreted so that an impossible or disproportionate burden is not imposed upon the authorities.181
(p.65) The Court then developed certain criteria related to the content obligation of the states:
In order for this positive obligation to arise, it must be determined that at the moment of the occurrence of the events, the authorities knew or should have known about the existence of a situation posing an immediate and certain risk to the life of an individual or of a group of individuals, and that the necessary measures were not adopted within the scope of their authority which could be reasonably expected to prevent or avoid such risk.182
Reference to the right to a ‘dignified existence’ became a major criterion for the interpretation of this right, which led to a series of positive obligations owed by the state.183 This of course resonates with the notion of minimum core content of ESC rights. Second, the shift in the burden of proof was onto the state, which was required to prove that it had done what was necessary to prevent or avoid the life of the community getting worse.184
This chapter has examined the inherent challenges embedded in the theory and practice of ESC rights. The application of ESC rights is a subtle and, at times, complex endeavour. It is true that, on the one hand, progress has been made in clarifying both the content of rights and the principles governing the entitlements of individuals in different situations. On the other hand, challenges remain to further conceptualize these legal rights, because ESC rights treaties leave the door open for other relevant concerns to be integrated into the ambit of measures necessary to realize the rights they embody. However, as has been stated, by ratifying the ICESCR a state is legally bound to commit its resources as a priority to the realization of these rights. And even in times of conflict, as long as there is an authority representing the state, the state is bound as a matter of law to do its best to secure the rights, to the extent it can, for all the individuals under its jurisdiction.
The notion of minimum core obligation and the tripartite typology of obligations were examined with a view to evaluating their relevance for the scope of states’ obligations under the ICESCR in times of conflict and to highlight some of the difficulties in legally assessing certain situations. It was considered important to bear in mind the distinction between, on the one hand, the general notion of (p.66) progressive realization in accordance with the maximum available resources determining ESC rights and corresponding state obligations in a given context and, on the other, specific obligations of the state not to unlawfully interfere with ESC rights to be enjoyed by individuals or allow third parties to do so. For instance, while the Syrian population carries the burden of the economic impact of the current conflict, the state, through its military and security forces and non-state armed groups, is under an obligation not to arbitrarily restrict the socio-economic rights of the civilian population.185
Any situations involving the use of force, especially on a wider scale, challenge the rule of law, and it is therefore essential to legally assess—as we do in the next chapter—the extent to which security measures in times of emergency can restrict ESC rights, and under what conditions.
(1) As Chapman and Russell note, ‘valid expectations and concomitant obligations of states parties under the Covenant are not uniform or universal, but instead are relative to levels of development and available resources’. A.R. Chapman and S. Russell, ‘Introduction’, in A.R. Chapman and S. Russell (eds), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Transnational Publishers 2002) 5; A. Eide, ‘Economic, Social and Cultural Rights as Human Rights’, in A. Eide, C. Krause, and A. Rosas (eds), Economic, Social and Cultural Rights. A Textbook (2nd edn, Kluwer Law International 2001) 9–28; M. Sepúlveda, The Nature of the Obligations Under the International Covenant on Economic, Social and Cultural Rights (Intersentia 2003) 25–75.
(2) International Law Commission, Memorandum by the Secretariat, The Effect of Armed Conflict on Treaties: An Examination of Practice and Doctrine, A/CN.4/550, 1 February 2005, para 34.
(3) Article 2(1), ICESCR.
(4) The original state position, and probably the prevalent one, is that the progressive implementation standard entailed a mere promotional type of commitment to enhance certain objectives set by the Covenant without requiring the attainment of specific results.
(5) For instance, the Convention on the Rights of Persons with Disabilities adopted in 2006 retains some form of distinction between civil and political rights and on economic, social, and cultural rights under its Article 4 concerning general obligations. Whereas civil and political rights must be guaranteed immediately under Article 4(1), the provision concerning ESC rights obligation repeats the same formulation as in Article 2(1), ICESCR. However, Article 4(2), CRPD states that realization of these rights is ‘without prejudice to those obligations contained in the present Convention that are immediately applicable according to international law’.
(6) Article 2(2), ICESCR reads as follows: ‘The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
(7) Article 3 reads as follows: ‘The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.’
(8) CESCR, General Comment No 3, The Nature of States Parties Obligations, E/1991/23, 14 December 1990, at para 5.
(9) Reference is made to their self-executing nature. Klerk, for example, argues that even in times of economic crisis, ‘the introduction or the continuation of discriminatory practices can never be compatible with the nature of these rights’: Y. Klerk, ‘Working Paper on Article 2(2) and Article 3 of the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 263. See M. Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on its Development (Clarendon Press 1998), 181–2 and 192–3. See further A.R. Chapman and S. Russell, ‘Introduction’, 5; CESCR, General Comment No 3, para 5.
(10) The Committee in recognition of this made the following comment in its General Comment No 11 concerning the implementation of the requirements of Article 13(2)(a): ‘The plan of action must be aimed at securing the progressive implementation of the right to compulsory primary education, free of charge’ (emphasis added).
(11) UNESCO, Protecting Education from Attack: A State-of-the-Art Review (UNESCO 2010) 165. It should be noted that the Optional Protocol to the ICESCR is the first complaint mechanism to specify the standard of reasonableness to be used in the evaluation of alleged violations. See Article 8(4), OP-ICESCR. On the concept of reasonableness see S. Liebenberg, ‘Enforcing Positive Socio-Economic Rights Claims: The South African Model of Reasonableness Review’, in J. Squires, M. Langford, and B. Thiele, The Road to a Remedy. Current Issues in the Litigation of Economic, Social and Cultural Rights (Australian Human Rights Centre 2005) 73–88. The Constitutional Court of South Africa held that:
A court considering reasonableness will not enquire whether other more desirable or favourable measures could have been adopted, or whether public money could have been better spent. The question would be whether the measures that have been adopted are reasonable. It is necessary to recognize that a wide range of possible measures could be adopted by the state to meet its obligations. Many of these would meet the requirement of reasonableness. Once it is shown that the measures do so, this requirement is met.
Constitutional Court of South Africa, The Government of the Republic of South Africa and others v Irene Grootboom and others, 2000 (11) BCLR 1169 (CC), Judgment of 4 October 2000, para E.iii.14.
(12) States remain bound to a general duty to ‘take steps’ without delay and adopt immediate measures to promote the full application of the Covenant, regardless of the state’s level of development or the existence of an armed conflict. CESCR, General Comment No 3, para 2.
(13) See generally E. Riedel, G. Giacca, and C. Golay, ‘The Development of Economic, Social, and Cultural Rights in International Law’, in E. Riedel, G. Giacca, and C. Golay (eds), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP 2014) 3–48.
(14) Riedel et al, ‘The Development of Economic, Social, and Cultural Rights’, paras 3 and 5–7.
(15) See for instance Article 14, ICESCR.
(16) See also the Limburg Principles on the Implementation of the ICESCR, June 1986, para 21. The Limburg Principles were adopted by a group of international law experts.
(17) CESCR, General Comment No 3, para 9.
(18) CESCR, General Comment No 3, para 9.
(19) This phraseology is derived originally from General Comment No 3, which emphasizes that any such measures ‘would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’. CESCR, General Comment No 3, para 9; CESCR, General Comment No 13, The Right to Education, 1999, para 45; CESCR, General Comment No 14, The Right to the Highest Attainable Standard of Health, para 32; CESCR, General Comment No 15, The Right to Water, 2002, para 19; CESCR, General Comment No 19, The Right to Social Security, 2008, para 42.
(20) CESCR, General Comment No 4, The Right to Adequate Housing, 1991, para 11.
(21) See for instance Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–6 January 1997.
(22) CESCR, General Comment No 13, para 45; CESCR, General Comment No 14, para 32; CESCR, General Comment No 15, para 19; CESCR, General Comment No 19, para 42.
(23) ‘[A]ny deliberately retrogressive measures […] require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.’ CESCR, General Comment No 3, para 9.
(24) On indicators and benchmarks, see generally E. Riedel, ‘New Bearings to the State Reporting Procedure: Practical Ways to Operationalize Economic, Social and Cultural Rights, the Example of the Right to Health’, in S. von Schorlemer (ed), Praxishandbuch UNO (Springer Verlag 2003) 345–58. By the same author, see ‘Measuring Human Rights Compliance: The IBSA Procedure as a Tool of Monitoring’, in A. Auer, A. Flückiger, and M. Hottelier (eds), Etudes en l’honneur du Professeur Giorgio Malinverni (Schulthess 2007) 251–71.
(25) UN International Human Rights Instruments, Report on Indicators for Promoting and Monitoring the Implementation of Human Rights, 6 June 2008, UN Doc HRI/MC/2008/3.
(26) UN OHCHR, Human Rights Indicators. A Guide to Measurement and Implementation (OHCHR 2012).
(27) See CESCR, General Comment 14, para 57.
(28) E. Riedel, G. Giacca, and C. Golay, ‘The Development of Economic, Social, and Cultural Rights in International Law’, in E. Riedel, G. Giacca, and C. Golay (eds.), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP 2014) 3–48.
(29) The idea of using indicators is based on the assumption that indicators can translate the normative content of human rights into operative information to facilitate implementation and compliance. Over the years, the OHCHR has elaborated a certain number of human rights indicators in the areas of civil, political, economic, and social rights (eg the right to life, the right to health, or the right to education).
(30) See generally CESCR, General Comment No 3, and M. Sepúlveda, The Nature of the Obligations 25–75.
(31) The rationale of establishing this minimum level is to delineate which elements or guarantees of a right must be deemed fundamental and must be guaranteed in any circumstances, irrespective of the economic development, the political situation, or the institutional structure of the state. As suggested above, it should be noted that the notion of ‘progressive fulfilment’ still requires that certain steps be taken immediately. Maastricht Guidelines, para 8.
(32) CESCR, General Comment No 3, para 10.
(33) CESCR, General Comment No 3, para 10.
(34) CESCR, General Comment No 3, para 10. See also CESCR, General Comment No 12, The Right to Adequate Food, 1999, paras 8–13.
(35) CESCR, General Comment No 14, para 47; General Comment 15, para 40; CESCR, Poverty and the ICESCR: Statement by the Committee to the Third United Nations Conference on Least Developed Countries, paras 16 and 18.
(36) The concept of limitation and derogation will be tackled in another section, but it is worth noting that the CESCR sometimes refers to the non-derogability of minimum core obligations corresponding to each ESC right; for example, CESCR, Poverty and the ICESCR, para 18.
(37) Alston explains: ‘In other words, there would be no justification for elevating a “claim” to the status of a right (with all the connotations that concept is generally assumed to have) if its normative content could be so indeterminate as to allow for the possibility that the right-holders possess no particular entitlement to anything.’ P. Alston, ‘Out of the Abyss: The Challenges Confronting the New U.N. Committee on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 332, 353. According to Alston, such an approach may be in consonance with the intention of the drafters. The representative of New Zealand argued that the concept of state responsibility for the material welfare of its citizens ‘was not static and there might be reasonable differences of opinion on the extent of such responsibilities’: Statement of Mr Davin, A/C.3/SR.367, 1951 para 3.
(38) A. Chapman and S. Russell (eds), Core Obligations 6.
(39) Some authors call this a ‘survival kit’, or subsistence rights, which refer to a life-saving minimum standard. This reflects the need to set a minimum humanitarian guarantee applicable in all situations, in order to protect the basic rights of individuals, as a matter of urgency. E. Riedel, ‘The International Covenant on Economic, Social and Cultural Rights’, in Max Planck Encyclopedia of Public International Law (EPIL) (OUP 2007), 137–8.
(40) HRCte, General Comment No 6 (Article 6), Right to Life, 1982, para 5.
(41) On this issue, Limburg Principle No 25 on the Implementation of the ICESCR refers to the obligation ‘to guarantee respect for the minimum rights of survival for all’, independent of available resources: the Limburg Principles on the Implementation of the ICESCR.
(42) CESCR, Concluding Observations: Israel, UN Doc E/C.12/1/Add.90, 26 June 2003, para 31.
(43) Under IHL, the content of humanitarian assistance arises solely as regards the indispensable needs of the civilian population to ensure their survival in armed conflict (whether international or non-international). These rules can be found, inter alia, in Articles 59 GCIV, Articles 69–71 of API, Article 18 APII, and Rule 55 Customary IHL Study.
(44) IHL provides with ‘an absolute minimum level of protection beyond which no interpretation of the human rights treaties could possibly ever be allowed to go’: A.-L. Svensson-McCarthy, The International Law of Human Rights and States of Exception: With Special Reference to the Travaux Preparatoires and Case-Law of the International Monitoring Organs (Martinus Nijhoff 1998) 378.
(45) Reference is made to ‘clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory’ (Article 69, API), in addition to food and medical supplies (Article 55, GCI).
(46) See generally Section 3.A.
(47) CESCR, General Comment No 12, paras 8–13 and, CESCR, General Comment No 13, para 57.
(48) K. Arambullo, Strengthening the Supervision of the International Covenant on Economic, Social and Cultural Rights. Theoretical and Procedural Aspects (Intersentia-Hart 1999) 141.
(49) E. Riedel, ‘The Human Rights to Health: Conceptual Foundations’, in A. Clapham, M. Robinson, C. Mahon, and S. Jerbi (eds), Realizing the Right to Health (vol 3 of Swiss Human Rights, Rüffer & Rub 2009) 27.
(50) CESCR, General Comment No 14, para 43.
(51) He notes that these obligations are mirrored by many states in their national law. E. Riedel, ‘The Human Rights to Health: Conceptual Foundations’, in A. Clapham, M. Robinson, C. Mahon, and S. Jerbi (eds), Realizing the Right to Health (vol 3 of Swiss Human Rights, Rüffer & Rub 2009) 32.
(52) CESCR, General Comment No 15, para 37.
(53) Alston, ‘Out of the Abyss’, 353. The Committee emphasized three points on this issue:
First, because core obligations are non-derogable, they continue to exist in situations of conflict, emergency and natural disaster. Second, because poverty is a global phenomenon, core obligations have great relevance to some individuals and communities living in the richest States. Third, after a State party has ensured the core obligations of economic, social and cultural rights, it continues to have an obligation to move as expeditiously and effectively as possible towards the full realization of all the rights in the Covenant.
CESCR, Statement on Poverty, para 18.
(54) CESCR, General Comment No 3, para 9; CESCR, General Comment No 12; CESCR, General Comment No 13; CESCR, General Comment No14; CESCR, General Comment No 15; CESCR, General Comment No 18, The Right to Work, 2005. As of November 2012, the Committee has issued 21 General Comments.
(55) As with most of the General Comments issued by monitoring treaty bodies, they are based on the body’s review of state party reports on their implementation of the provisions under the Covenant. P. Alston, ‘The Historical Origins of “General Comments” in Human Rights Law’, in L. Boisson De Charzournes and V Gowlland-Debbas (eds), The International Legal System in Quest of Equity and Universality: Liber Amicorum Georges. Abi-Saab (Martinus Njihoff 2001) 257–75.
(56) CESCR, General Comment No 14, para 47; CESCR, General Comment No 15, para 37.
(57) CESCR, General Comment No 3, para 10. Compare for instance Principles 25 and 28 of the Maastricht Guidelines.
(58) CESCR, General Comment No 3, para 10; CESCR, General Comment No 12, para 17.
(59) G. Abi-Saab, ‘Le droit au développement’ (1988) 44 Annuaire Suisse de Droit International 11: ‘to place the state services on a sliding scale, depending on the governments’ material capacities’.
(60) The application of IHL rules requires the necessary financial, human, and technical resources to pay an adequate wage to military forces, to adequately train them, to spread knowledge of IHL, and to train qualified personnel to facilitate implementation of IHL.
(61) CESCR, Statement on ‘An Evaluation of the Obligation to Take Steps to the “Maximum Of Available Resources” Under An Optional Protocol to the Covenant’, E/C.12/2007/1, 10 May 1997, para 2.
(62) P. Alston and G. Quinn, ‘The Nature and Scope of States Parties’ Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 181; M. Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on its Development (Clarendon Press 1998) 136–44.
(63) R.E. Robertson, ‘Measuring State Compliance with the Obligation to Devote the ‘Maximum Available Resources’ to Realizing Economic, Social, and Cultural Rights’ (1994) 16 Human Rights Quarterly 693.
(64) For some authors ‘maximum available resources’ refers to an economic capacity broadly, rather than a narrowly construed notion of government spending and budgetary allocation. M. Dowell-Jones, Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit (Martinus Nijhoff 2004) 48. See also M. Dowell-Jones, ‘The Sovereign Bond Markets and Socio-Economic Rights Understanding the Challenge of Austerity’ in E. Riedel, G. Giacca, and C. Golay (eds.), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP 2014) 51–85.
(65) M. Dowell-Jones, Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the Economic Deficit (Martinus Nijhoff 2004) 47–8.
(66) P. Alston and G. Quinn, ‘The Nature and Scope of States Parties’ Obligations’ 177.
(67) The speaker, Mr Grissa, questioned the whole philosophy of the CESCR’s work and as such felt that he could no longer be an effective participant in the Committee’s work, so he vacated his post and left. CESCR, Summary Record of the 24th meeting: Gambia, Mauritius, E/C.12/1994/SR.24 (Summary Record) 24 May 1994, paras 2–3.
(68) Human Rights Council, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/19/69, 22 February 2012, available online at: <http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-69.pdf> accessed 4 March 2014.
(69) 4th Report of the Commission of Inquiry on the Syrian Arab Republic, UN Doc A/HRC/22/59, 5 February 2013, 8, 42; see also 3rd Report of the independent international commission of inquiry on the Syrian Arab Republic, UN Doc A/HRC/21/50, 15 August 2012; 5th Report of Commission of Inquiry on Syria, UN Doc A/HRC/23/58, 4 June 2013, 32–7; 6th Report of Commission of Inquiry on Syria, UN Doc A/HRC/24/46, 11 September 2013, 35–9; 7th Report of Commission of Inquiry on Syria, A/HRC/25/65, 12 February 2014.
(70) Alston and Quinn also cite the remark of the Danish representative at the preparatory work, according to whom:
[I]f the Commission was to be realistic, it could not close its eyes to the fact that in drawing up its budget any government had to make certain decisions about allocations. At the present moment, for example, many countries were faced with the problem of reconciling defence requirements with those of the social services. Even if that particular difficulty disappeared, governments would still have to apportion allocations between the various branches of the social services or other budgetary appropriations relating to the realization of economic, social, and cultural rights. It would be unrealistic to attempt to dictate to States how they should allocate their resources in that respect.
(74) See generally A. Nolan, ‘Budget Analysis and Economic and Social Rights’, in E. Riedel, G. Giacca, and C. Golay (eds), Economic, Social and Cultural Rights: Contemporary Issues and Challenges (OUP 2014).
(75) R. E. Robertson, ‘Measuring State Compliance with the Obligation to Devote the “Maximum Available Resources” to Realizing Economic, Social, and Cultural Rights’ (1994) 16 Human Rights Quarterly 701.
(76) Principle 15(e). Specific note should be taken, however, of Limburg Principle No 65: ‘The systematic violation of economic, social and cultural rights undermines true national security and may jeopardize international peace and security. A State responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices towards its population.’ Limburg Principles on the Implementation of the ICESCR.
(77) ‘Where the available resources are demonstrably inadequate, the obligation remains for a State party to ensure the widest possible enjoyment of economic, social and cultural rights under the prevailing circumstances.’ CESCR, Statement on ‘An Evaluation of the Obligation’, E/C.12/2007/1, para 4.
(78) CESCR, Statement on ‘An Evaluation of the Obligation’ (emphasis added). What is certain is that the availability of resources does not as such alter the ‘immediacy of the obligation’ to take steps. Resource constraints cannot justify inaction. CESCR, Statement on ‘An Evaluation of the Obligation’, para 4.
(79) CESCR, Statement on ‘An Evaluation of the Obligation’, para 10.
(80) CESCR, Statement on ‘An Evaluation of the Obligation’, para 2.
(82) In addition, several other indicators can be identified. One concerns comparative analysis between the resources allocated by a state for the realization of a specific human right and resources allocated by other states with the same level of development on the same right. M. Sepúlveda, The Nature of the Obligations 316–19; R. Pisillo Mazzeschi, ‘Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme’ (2008) 333 Recueil des Cours 466.
(83) R. Pisillo Mazzeschi, ‘Responsabilité de l’Etat pour violation des obligations positives relatives aux droits de l’homme’ (2008) 333 Recueil des Cours 466–7. (It shows another principle, which is weaker compared to the one relating to the principle of prioritizing resources for human rights [. . .]: that of ‘reasonable standard’ to follow in the quest, on the part of the state, of a balance between resources for human rights and resources for other primary state interests. At the end, the indicators developed by the Committee appear implicitly inspired by this principle of a reasonable balance of interests.) See also 468–9 for comparative analysis of the provisions on resources for the realization of socio-economic rights, where the author’s assessment finds no support in the regional human rights treaties to the proposition that human rights should serve as a priority for the governments’ allocations.
(84) CRC, General Comment No 5: General measures of implementation of the Convention on the Rights of the Child (Arts 4, 42 and 44, para 6), 2003, para 51.
(85) CESCR, ‘General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States Parties under Article 44, Paragraph 1(b) of the Convention’, 11 October 1996, para 20. In its general comment on the issue, the CRC has stated:
The Committee needs to know what steps are taken at all levels of Government to ensure that economic and social planning and decision-making and budgetary decisions are made with the best interests of children as a primary consideration and that children, including in particular marginalized and disadvantaged groups of children, are protected from the adverse effects of economic policies or financial downturns.
CRC, General Comment No 5, para 51.
(86) CESCR, Statement on ‘An Evaluation of the Obligation’, 21 September 2007, E/C.12/2007/1, para 10 (emphasis added).
(87) In the words of the ICRC,
Armed conflict causes unspeakable suffering, whatever is done to prevent it and however well international humanitarian law is respected. It is therefore vital to encourage and intensify all efforts to tackle the root causes of conflicts, such as poverty, inequality, illiteracy, racism and the uncontrolled growth of huge cities, the collapse of governmental and social structures, corruption, crime organized on a world-wide scale, drug trafficking and arms dealing. To encourage compliance with international humanitarian law is not enough.
‘Report on the Protection of War Victims’ (1993) 296 IRRC 404–5.
(88) In the Secretary-General’s first report on the protection of civilians in armed conflict, it was estimated that 2 million children were killed as a direct result of armed conflict in the course of the 1990s, while over 6 million were seriously injured or permanently disabled and even greater numbers died of malnutrition and disease. S/1999/957 of 8 September 1999, para 16. According to a 2010 UN report, poverty deprives two-thirds of the Afghan population from living a decent and dignified life—this includes the inability to enjoy their most basic and fundamental rights, such as getting an education or having access to health services. Some 9 million Afghans—36 per cent of the population—are believed to live in absolute poverty and a further 37 per cent live only slightly above the poverty line, despite an estimated injection of some $35 billion during the period 2002–9. OHCHR, Human Rights Dimension of Poverty in Afghanistan, Kabul, March 2010, 2, available at: <http://unama.unmissions.org/Portals/UNAMA/human%20rights/Poverty%20Report%2030%20March%202010_English.pdf> accessed 4 March 2014.
(89) P. Collier and A. Hoeffler, ‘On Economic Causes of Civil War’ (1998) 50 Oxford Economic Papers 563; J. Murdoch and T. Sandler, ‘Economic Growth, Civil Wars, and Spatial Spillovers’ (2002) 46 Journal of Conflict Resolution 91; K. Ballentine and J. Sherman (eds), The Political Economy of Armed Conflict: Beyond Greed and Grievance (Lynne Rienner Publishers 2003), 259–83.
(91) The Commission for Reception, Truth and Reconciliation (CAVR), Chega! The Report of the Commission for Reception, Truth and Reconciliation, Timor-Leste, Dili, 2006, paras 26, 136, available at: <www.cavr-timorleste.org> accessed 4 March 2014.
(92) CESCR, Concluding Observations: DRC, 2009, para 6; CESCR, Concluding Observations: Kyrgyzstan, E/2001/22, 31 December 2003, para 7: ‘The Committee also acknowledges that the on-going armed conflict in the south of the country is a serious impediment to the implementation of economic, social and cultural rights in Kyrgyzstan’; CESCR, Concluding Observations: Nepal, E/C.12/NPL/CO/2, 16 January 2008, para 10: ‘The Committee takes note that the State party’s efforts to comply with some of its obligations under the Covenant are impeded by the consequences of the divisive and violent conflict, namely a large number of victims and families of victims, a large numbers of displaced persons, and a severely damaged physical infrastructure that hinders the mobility of persons, goods and essential public services.’
(93) R. Pisillo Mazzeschi, ‘Responsabilité de l’Etat pour violation’, 390–428.
(94) Article 26, VCLT.
(95) CESCR, Concluding Observations: Colombia, E/C.12/COL/CO/5, 21 May 2010, para 7. In 2001, the CESCR strongly recommended that Colombia ‘reduce inequality and put an end to conflict by political negotiation, which is the only way effectively to guarantee ESC rights of all citizens’. CESCR, Concluding Observations, Colombia, E/C.12/1/Add.74, 6 December 2001, para 30.
(96) Report on the Situation of Human Rights in Kuwait Under Iraqi Occupation, Walter Kälin, E/CN.4/1992/26, 16 January 1992, para 52.
(97) The United Nations Arms Trade Treaty, UNGA Resolution A/67/L.58, 1 April 2013. Adopted on 2 April 2013 at the 71st plenary meeting, 154 in favour to 3 against, with 23 abstentions.
(98) For an unofficial record of the ATT negotiations and related documents, see eg the Arms Trade Treaty legal blog run by the Geneva Academy International Humanitarian Law and Human Rights and the Oxford Martin School Programme on Human Rights for Future Generations, available at: <http://armstradetreaty.blogspot.ch> accessed 4 March 2014.
(99) Draft Article 7(8)(d), President’s Non-Paper (22 March 2013), United Nations Final Conference on the Arms Trade Treaty New York, 18–28 March 2013, http://www.un.org/disarmament/ATT/docs/Presidents_Non_Paper_of_22_March_2013_%28ATT_Final_Conference%29.pdf accessed 4 March 2014. See also ‘The Draft of the Arms Trade Treaty’, UN Conference on the Arms Trade Treaty, Doc A/CONF.217/CRP.1, 26 July 2012, Article 4(6)(e) or the substantive discussions at the ATT Preparatory Committees (in 2010–01), including the different criteria proposed by the Chair of the Preparatory Committees in July 2011. One of the proposed formulations reads as follows (Section V (B)(5), Chairman’s Draft Paper, 14 July 2011):
A State party shall not authorise a transfer of conventional arms if there is a substantial risk that those conventional arms would…seriously impair poverty reduction and socio-economic development, or seriously hamper the sustainable development of the recipient State.
See the Arms Trade Treaty legal blog available at: <http://armstradetreaty.blogspot.ch> accessed 4 March 2014.
(100) This example of the ATT provides a useful entry point to understanding the current state of debate on the relationship between arms regulations and socio-economic development. This issue has been discussed for many years in many different settings, including at the UN. The ethical dimension of the subject matter has always formed part of its background, where excessive armament and spending negatively affect development and divert resources away from human development objectives. National and international studies are available in the field of social science, but are less often directly concerned with the human rights dimension. W. Omitoogun and E. Hutchful, SIPRI, Budgeting for the Military Sector in Africa: The Processes and Mechanisms of Control (OUP 2006); G. Giacca and T. Karimova, ‘The Implications of Economic and Social Rights for Arms Acquisitions’, in S. Casey-Maslen (ed), Weapons under International Human Rights Law (CUP 2014) 472–500.
(101) Article 26 of the UN Charter reads as follows:
In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments.
For an in-depth analysis, see G. Giacca and T. Karimova, ‘The Implications of Economic and Social Rights for Arms Acquisitions’, in S. Casey-Maslen (ed), Weapons under International Human Rights Law (CUP 2014) 472–500.
(102) Thus, in its concluding observations on one State Party report, the Committee on the Rights of the Child (CRC) noted with concern ‘the marginalisation of social sector spending, as indicated by the considerable military expenditure in contrast to allocations for health and education’ CRC, ‘Concluding Observations: Sudan’, UN Doc CRC/C/SDN/CO/3-4, 1 October 2010, §17. The Committee recommended that Sudan:
((a)) prioritise, as a matter of urgency, specific budgetary allocations in order to ensure the implementation of the rights of children to the maximum extent of available resources;
((b)) ensure a balanced distribution of resources throughout the country, ensuring that priority is given to the alleviation of poverty among children; and
((c)) introduce resource tracking from a child rights perspective with a view to monitoring resource allocations for children.
(103) The reality is that all human rights impose a variety of obligations and each of them is clearly dependent on the establishment and development of an institutional structure which requires different degrees of state involvement. In the field of socio-economic rights, positive actions required by each of those rights are understood as often being costly.
(104) The International Court of Justice (ICJ) held in 1986 in the Nicaragua case that ‘There are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all States without exception.’ ICJ, Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v US) (Merits), Judgment of 27 June 1986, para 268. This statement could be interpreted as a ‘right of all States to manufacture, import, export, transfer and retain conventional arms for self-defence and security needs, and in order to participate in peace support operations’. See UN General Assembly Resolution 61/89: ‘Towards an arms trade treaty: establishing common international standards for the import, export and transfers on conventional arms’, A/RES/61/89, Preambular Paragraph 5.
(105) At the same time, the concept and extent of the domaine reservé is rather flexible: ‘the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends on the development of international relations.’ Nationality Decrees issued in Tunis and Morocco [Advisory Opinion], PCIJ Reports, Series B, 1923, No 4, 24.
(106) In the review of states parties reports to the CESCR, Nepal was the only state party to formally recognize that it ‘had to allocate a large part of the budget to maintain law and order in the country’, underlining that security expenditure increased, to maintain peace and security, to the detriment of socio-economic development. CESCR, Report of Nepal (Second Periodic Report), E/C.12/NPL/2,7 August 2006, para 123.
(107) CESCR, Concluding Observations: DRC, para 16.
(108) CRC, Concluding Observations: Eritrea, CRC/C/ERI/CO/3, 23 June 2008, para 16.
(109) CRC, Concluding Observations: Sudan, CRC/C/SDN/CO/3-4, 1 October 2010, para 17.
(110) OHCHR, Human Rights Dimension of Poverty in Afghanistan, Kabul, ACBAR, March 2010, 11–14; see also M. Waldman, Falling Short: Aid Effectiveness in Afghanistan (Agency Coordinating Body for Afghan Relief [ACBAR] March 2008) 4.
(111) Report of The Special Rapporteur of the Commission on Human Rights on the situation of human rights in Iraq, Max Van der Stoel, A/49/651, 8 November 1994, para 92.
In the light of the disturbing fact that access to food and health care continues to decline in Iraq for virtually the entire population, it is perhaps more disturbing that little else has changed…Specifically, the obvious imbalance between military expenditure and resources allocated to the fields of health care and nutrition continues to illustrate clearly the priorities of the Government of Iraq. Most recently, the Government somehow mustered the overall resources to transport tens of thousands of heavily armed troops up and down the country towards the border with Kuwait. Yet, the Special Rapporteur regularly receives information detailing, e.g., how difficult it is to obtain spare parts for vehicles to transport fresh water to communities in the southern governorates.
(112) Report of the Special Rapporteur on Situation of Human Rights in Myanmar, Rajsoomer Lallah, E/CN.4/2000/38, 24 January 2000, para 31. The Special Rapporteur noted with concern that
budgetary allocations are largely determined by military considerations and objectives. Thus, high and growing military spending contrasts with diminishing allocations to basic social services such as health, education and essential services, all necessary not only to translate growth, however modest, into human development and welfare but also to sustain growth.
(113) Report of the Special Rapporteur on Violence Against Women, its Causes and Consequences, Addendum, ‘Political Economy and Violence Against Women’, Yakin Erturk, A/HRC/11/6/Add.6, 23 June 2009, para 37. The Special Rapporteur noted that armed conflicts have further impoverished societies as they make trade-offs between military spending and spending for social and economic development, creating conditions amenable to severe violence against women.
(114) For a comprehensive analysis of public investment in education in comparison with the military expenditure in the worlds’ regions, see K. Tomaševski, The State of the Right to Education Worldwide: Free or Fee: Global Report, 2006, available at: <http://www.katarinatomasevski.com/images/Global_Report.pdf> accessed 4 March 2014.
(115) Report of the UN High Commissioner for Human Rights on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, A/HRC/12/22, 2 September 2009, para 45.
(116) Report of the UN High Commissioner for Human Rights on the Protection of Human Rights, para 57.
(117) Report of the UN High Commissioner for Human Rights on the Protection of Human Rights, para 40.
(118) On the right to peace, see also Article 23 of the African Charter on Human and Peoples’ Rights. This umbrella concept, which is often associated with the so-called ‘third generation rights’, accords a series of legal protection to women in the field of participation and armed conflict and conveys a collective dimension of their rights to ‘the promotion and maintenance of peace’: Article 10(1).
(119) Article 10(3) provides: ‘States Parties shall take the necessary measures to reduce military expenditure significantly in favour of spending on social development in general, and the promotion of women in particular.’ The First Meeting of the Working Group on the Additional Protocol to the African Charter on Women’s Rights on 26–8 January 1998 seems to have agreed this provision without discussion. See Documents of the African Commission on Human and Peoples’ Rights (Hart Publishing 2001) 770–4, para 25. See also B. Fareda, ‘Blazing a Trail: The African Protocol on Women’s Rights Comes into Force’ (2006) 72 Journal of African Law 72. On the drafting history of the Protocol, see generally R. Murray, ‘Women’s Rights and the Organisation of African Unity and African Union: The Protocol on the Rights of Women in Africa’, in D. Buss and A. Manji (eds), Introduction to International Law: Modern Feminist Approaches (Hart Publishing 2005) 253–72.
(120) S.C. Agbakwa, ‘Reclaiming Humanity: Economic, Social and Cultural Rights as the Cornerstone of African Human Rights’ (2002) 5 Yale Human Rights and Development Law Journal 189.
(121) Article 26(2) reads as follows: ‘States Parties undertake to adopt all necessary measures and in particular shall provide budgetary and other resources for the full and effective implementation of the rights herein recognized.’
(122) F. Viljoen, ‘An Introduction to the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa’ (2009) 16 Washington & Lee Journal of Civil Rights and Social Justice 11.
(123) The same typology in the ambit of civil and political rights is equally valid, and is treated as such in the literature. See M. Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (2nd rev ed, Kehl am Rhein, Engel 2005) 37–41.
(124) Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, 22–26 January 1997, para 6, B. Originally espoused by Henry Shue, where he distinguished between the duties to avoid depriving, duties to protect from deprivation, and duties to aid the deprived: H. Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy (Princeton University Press 1980). This typology was further developed within the framework of a study on the normative content of the right to adequate food by the former United Nations Special Rapporteur on the right to food, Mr Asbjorn Eide. See also Report of the Special Rapporteur on The Right to Adequate Food as a Human Right, Asbjorn Eide, C/CN.4/Sub.2/1987/23, 7 July 1987. CESCR, General Comment No 12 (1999) on the right to adequate food (Article 11 of the Covenant); No 13 (1999) on the right to education (rt 13 of the Covenant); No 15 (2002) on the right to water (Articles 11 and 12 of the Covenant).
(125) M. Nowak, UN Covenant on Civil and Political Rights 37.
(126) E. Riedel, G. Giacca, and C. Golay, ‘The Development of Economic, Social, and Cultural Rights in International Law’, in E. Riedel, G. Giacca, and C. Golay (eds.), Economic, Social and Cultural Rights in International Law: Contemporary Issues and Challenges (OUP 2014) 3–48.
(127) There are also micro-level impacts of armed conflicts: loss of homes, livestock, crops, tools, land, or other means of livelihood, food insecurity, forced or voluntary displacement of population, increased scarcity and declining assets, disruption of education, child labour, recruitment into armed groups.
(128) M. Craven, The International Covenant on Economic, Social and Cultural Rights, A Perspective on its Development (Clarendon Press 1998) 26.
(129) AComHPR, The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, African Commission on Human and Peoples’ Rights, Comm No 155/96, 2001. Similarly, there has been number of case law from the ECHR with the issue of private property together with the right to respect for private and family life and the home, which is guaranteed by Article 8 of the European Convention on Human Rights. In the cases concerning the conflicts between Turkish security forces and the Kurdistan Workers Party (PKK), the ECHR found the Turkish security forces guilty of destroying houses in villages in south-eastern Turkey, leaving victims homeless and destitute. ECtHR, Mentes & Others v Turkey, A no 00023186/94, Judgment, 28 November 1997; Akdivar and others v Turkey, A no 00021893/93, Judgment, 16 September 1996.
(130) Indeed, in view of the nature of such interference, the reference to progressive achievement based on the availability of resources would be less relevant.
(131) CESCR, General Comment No 14, paras 34 and 50.
(132) CESCR, General Comment, No 18, para 23.
(133) See the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.
(134) CESCR, General Comment No 12, para 19. See also J. Ziegler et al., The Fight for the Right to Food. Lessons Learned (Palgrave Macmillan 2011) 120.
(135) CESCR, General Comment, No 7, para 8. Forcible eviction is understood under international human rights law as ‘the permanent removal against their will of individuals, families and/or communities from the homes and/or which they occupy, without the provision of, and access to, appropriate forms of legal or other protection’. CESCR, General Comment No 7, para 4.
(136) The prohibition on forced eviction as an obligation of conduct is also found in the field of civil and political rights. As the CESCR noted, ‘the practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the right to non-interference with privacy, family and home and the right to the peaceful enjoyment of possessions’.
(137) HRCte, General Comment No 16 (Article 17) Right to Privacy, 1988, para 9. Article 17, ICCPR states: ‘1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.’
(138) The HRC relied on Articles 7, 17, 23, and 26, ICCPR. HRCte, Concluding Observations: Israel, CCPR/C/ISR/CO/3, 3 September 2010, paras 18 and 24:
The Committee is concerned at water shortages disproportionately affecting the Palestinian population of the West Bank, due to prevention of construction and maintenance of water and sanitation infrastructure, as well as the prohibition of construction of wells. The Committee is further concerned at allegations of pollution by sewage water of Palestinian land, including from settlements (arts. 6 and 26). The State party should ensure that all residents of the West Bank have equal access to water, in accordance with the World Health Organization quality and quantity standards. The State party should allow the construction of water and sanitation infrastructure, and wells. Furthermore, the State party should address the issue of sewage and waste water in the occupied territories emanating from Israel.
(139) HRCte, Concluding Observations: Israel, CCPR/C/ISR/CO/3, 3 September 2010, para 17.
(140) See, for instance, the Loizidou case concerning the alleged violation of the rights of a Cypriot land owner who was prevented by Turkish troops from returning to and enjoying her land in Northern Cyprus. While the lack of access of the applicant to her property amounted to a violation of the right to property (Article 1 of Protocol No 1 ECHR), there was no violation of the right to home (Article 8), since the applicant did not have a home on the land in question. ECtHR, Loizidou v Turkey, Judgment (Merits), A No 15318/89, 18 December 1996, paras 65–6.
(141) E. Schmid, ‘War Crimes Related to Violations of Economic, Social and Cultural Rights’ (2011) 71 Heidelberg Journal of International Law 537 (emphasis added).
(142) On the relationship between ESC rights and international criminal law, see generally E. Schmid, Taking Economic, Social and Cultural Rights Seriously in International Criminal Law (Cambridge Studies in International and Comparative Law, CUP 2014).
(143) See generally the AAAQ framework (availability, accessibility, acceptability and quality of facilities, goods, services and programmes) developed in the practice of the CESCR. CESCR, General Comment No 4: On the Right to Adequate Housing (Article 11, para 1, of the Covenant), 1991, para 8. UN Special Rapporteur on the Right to Education, K. Tomaševski, Preliminary Report, E/CN.4/1999/49 (1999).
(144) CESCR, General Comment No 14: On the Right to the Highest Attainable Standard of Health (Article 12 of the Covenant), 2000, para 12(a); similarly see General Comment No 19: On the Right to Social Security, 2008, para 11; General Comment No 18: On the Right to Work (Article 6 of the Covenant), 2005, para 12(a); General Comment No 15: On the Right to Water (Articles 11 and 12 of the Covenant), 2002, para 12(a), and General Comment No 13: On the Right to Education (Article 13 of the Covenant), 1999, para 6(a).
(145) CESCR, General Comment No 14: On the Right to the Highest Attainable Standard of Health (Article 12 of the Covenant), 2000, para 12(a); General Comment No 13: On the Right to Education (Article 13 of the Covenant), 1999, para 6(a). In similar terms, the Committee considers that the core content of the right to adequate food implies ‘the availability of food in a quantity and quality sufficient to satisfy the dietary needs of individuals, free from adverse substances, and acceptable within a given culture’. CESCR, General Comment No 12: On the Right to Adequate Food (Article 11 of the Covenant), 1999, para 8.
(146) Report on the Situation of Human Rights in Kuwait under Iraqi Occupation, prepared by Mr Walter Kälin, Special Rapporteur, E/CN.4/1992/26 of 16 January 1992, para 57. See further W. Kälin and L. Gabriel, Human Rights in Times of Occupation: the Case of Kuwait (Law Books in Europe 1994) 24–5.
(147) The wall and its associated regime reduced the availability of certain goods, by seizing and destroying land and property. This includes ‘fruit and olive trees, wells, and hothouses upon which thousands of Palestinians rely for their survival’: ICJ, Wall Advisory Opinion, para 133. Equally, the Special Rapporteur on the right to food held that
the direct destruction of livelihoods of Palestinians also amounts to a violation of the obligation to respect the right to food. Humanitarian and human rights provisions prohibit the destruction of objects necessary to the survival of the civilian population, such as water tanks, crops and agricultural infrastructure, as well as the broader economic and social infrastructure.
Report by the Special Rapporteur of the United Nations Commission on Human Rights, Jean Ziegler, ‘The Right to Food’, Addendum, Mission to the Occupied Palestinian Territories, E/CN.41 2004/10/Add.2, 31 October 2003, para 44.
(148) CESCR, General Comment No 18: Article 6 of the International Covenant on Economic, Social and Cultural Rights, 2005, para 12(a).
(149) CESCR, General Comment No 15, Right to Water, 2002, para 21.
(150) Convention for the Protection of Cultural Property in the Event of Armed Conflict, adopted at The Hague, 14 May 1954; Protocol to the Convention for the Protection of Cultural Property in the Event of Armed conflict, 14 May 1954 and Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict 1999, The Hague, 26 March 1999. See generally R. O’Keefe, The Protection of Cultural Property in Armed Conflict (CUP 2008) 92–297.
(151) CESCR, General Comment No 16: On the Right of Men and Women to the Enjoyment of All Economic, Social and Cultural Rights (Article 3 of the Covenant), 2005, para 6.
(152) Schmid supports the view that the destruction of cultural property could indeed violate the right to take part in cultural life. E. Schmid, ‘War Crimes Related to Violations of Economic, Social and Cultural Rights’, 537.
(153) For instance, closing schools may be perfectly lawful under human rights law under certain circumstances.
(154) M. Nowak, Introduction to the International Human Rights Regime (Martinus Nijhoff 2003) 53.
(155) CESCR, Statement on ‘An evaluation of the obligation’, E/C.12/2007/1, 10 May 2007, para 7; CESCR, General Comment No 12, para 15.
(156) U.S. Department of State, Human Rights Report: Democratic Republic of the Congo, Bureau of Democracy, Human Rights, and Labour, 2010 Country Reports on Human Rights Practices, Report, April 8, 2011, 8.
(157) M. Nowak, Introduction to the International Human Rights Regime 53; Inter-American Court of Human Rights, Velásquez Rodríguez v Honduras, 29 July 1988, Series C, No 4. See also Human Rights Committee, Delgado Paez v Colombia (Communication 195/1985), UN Doc A/45/40, in Report of the Human Rights Committee 1990, Volume II; European Court of Human Rights, Osman v United Kingdom, 28 October 1998, Reports 1998–VIII, in particular para 115.
(158) For instance in The Social and Economic Rights Action Center and the Center for Economic and Social Rights v Nigeria, the African Commission held that the right to food is ‘inseparably linked to the dignity of human beings and is therefore essential for the enjoyment and fulfilment of other rights’. Instead of defining the core content of these rights, the Commission listed the three minimum duties related to this right, which generally qualified as obligations to respect and to protect: the state’s duty not to destroy or contaminate food resources; not to allow non-state actors [in this case an oil company] to destroy or contaminate food resources; and not to prevent people’s efforts to feed themselves: AComHPR, Comm. No 155/96 (2001), paras 65–6. This approach mirrors the obligations listed in the CESCR’s General Comment on the right to adequate food: General Comment No 12, para 15. See also M. Ssenyonjo, ‘The Applicability of International Human Rights Law to Non-State Actors: What Relevance to Economic, Social and Cultural Rights?’ (2008) 12 International Journal of Human Rights 725.
(159) CSSCR, General Comment, No 13, para 50.
(160) Report of the Special Rapporteur on the Right to Education: Right to Education in Emergency Situations, V. Muñoz, A/HRC/8/10, 20 May 2008, para 108: ‘children stated that they had to walk long distances to reach school and were afraid of being attacked by armed groups.’
(161) Report of the Special Rapporteur on the Right to Education: Right to Education in Emergency Situations; see also Human Rights Watch, Schools and Armed Conflict, A Global Survey of Domestic Laws and State Practice’ Protecting Schools from Attack and Military Use (Human Rights Watch 2011).
(162) ICRC, ‘Health Care in Danger: A Sixteen-Country Study’, Geneva, July 2011, 3. The research assumes that a doctor in Somalia gives 250 consultations in a week, and that 15 medical students or doctors were killed.
(163) For instance, IHL protects medical workers, medical buildings, vehicles, and equipment.
(164) CESCR, General Comment No 13, para 50: ‘By way of illustration, a State must […] protect the accessibility of education by ensuring that third parties, including parents and employers, do not stop girls from going to school.’
(165) Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, 25 January 2005, paras 99 and 186.
(166) Certain rights cannot be guaranteed without prior enactments of specific laws and the related establishment of relevant state bodies.
(167) The establishment of administrative and judicial bodies providing adequate legal protection and effective remedies.
(168) Included are the entitlement to legal assistance in criminal proceedings (ICCPR, Article 14(3)(d), ECHR Article 6(3)(c)), the right to free primary education (Article 13(2)(a)), or any rights requiring particular benefit, such as the right to food, shelter, or health for individuals that are in need of assistance or for individuals in detention centres
(169) In the report of the Truth and Reconciliation Commission on Liberia, the following elements were identified as contributory elements in setting the stage for the conflict as well as exacerbating it: poverty, lack of governance, a weak judicial system, and a lack of any appropriate mechanism for the settlement of disputes, and endemic corruption which created limited access to education, health, and justice, as well as socio-economic opportunities. Truth and Reconciliation Commission on Liberia, Final Report, 2009, 17, available at: <http://trcofliberia.org> accessed 4 March 2014.
(170) CESCR, Concluding Observations: Afghanistan, para 27.
(171) CESCR, List of Issues: Sudan, E/C.12/Q/SUD/1, 13 December 1999, para 54.
(172) Article 2(1) ICESCR obliges each state party to take steps, individually and through international assistance and co-operation (especially economic and technical), to fulfil their obligations. CESCR, General Comment No 3, para 13.
(173) See, for instance, the failure of the Government of Niger to recognize the prevalent famine in the country and to seek international assistance. UN General Assembly, The Right to Food Note by the Secretary-General, A/60/350, 12 September 2005, paras 9–16.
(174) International Law Commission, Reports of the International Law Commission, Sixtieth session (5 May–6 June and 7 July–8 August 2008) Official Records of the General Assembly, Sixty-third Session, Supplement No 10 (A/63/10), para 243. By way of example, the ICESCR has said in pursuance of the right to food: ‘[t]he States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent’: Article 11 ICESCR.
(175) See Articles 23 and 59 GCIV, Article 70(2) API, or Article 18 APII.
(176) Report of the Commission of Inquiry on Lebanon pursuant to Human Rights Council resolution s-2/1, Implementation of General Assembly Resolution 60/251 of 15 March 2006, UN Doc A/HRC/3/2, 23 November 2006, paras 284–308.
(177) Report of the Commission of Inquiry on Lebanon.
(178) HRC, Concluding Observations, Israel, CCPR/C/ISR/CO/3, 3 September 2010, para 18.
(179) ECtHR, Dogan and Others v Turkey, Judgment, A No.8803-8811/02, 8813/02 and 8815-8819/02, 29 June 2004. In this case, the Court relied on the protection of property, in relation with the protection of home. See further Chapter 2.
(180) This has led to the protection of socio-economic rights such as the right to health and education and the right to culture through Articles 4 (life), 5 (right to humane treatment), 19 (rights of the child), and 21 (Property). IACtHR, Sawhoyamaxa v Paraguay, Judgment, Series C No 146, 29 March 2006; IACtHR, Yakye Axa v Paraguay, Judgment, 17 June 2005, IACtHR, Mayagna (Sumo) Awas Tingni Community v Nicaragua, Judgment, Series C No 79, 31 August 2001.
(181) IACtHR, Sawhoyamaxa v Paraguay, para 155. See also IACtHR, Pueblo Bello Massacre v Colombia, Judgment, 31 January 2006, para 124; ECtHR, Kiliç v Turkey, A No 22492/93, Judgment, 28 March 2000, para 63:
Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.
(182) IACtHR, Sawhoyamaxa v Paraguay, para 155.
(183) J.M. Pasqualucci, ‘The Right to a Dignified Life (Vida Digna): the Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System’ (2008) 31 Hastings International and Comparative Law Review 1.
(184) IACtHR, Sawhoyamaxa v Paraguay, para 176.
(185) For instance, blockades on areas with a significant presence of anti-government armed groups were imposed by the state; as a consequence, medicine, food, and other essential supplies were not allowed to pass and state agents arbitrarily arrested and assaulted individuals who tried to bring in such supplies. Human Rights Council, Report of the Independent International Commission, UN Doc A/HRC/19/69, 22 February 2012.