By Miloon Kothari

    Part of the reason for this failure is that the Commitments, and the Declaration as a whole, lack a clear direction or a perspective that would give them political, moral and legal power. The contention of this article is that a forthright human rights approach, both in the ongoing discussions and the objectives emerging out of the Copenhagen+5 review process, would provide the perspectives, principles and mechanisms to make the Summit review move beyond platitudinous references and well-drafted rhetoric.

    A fully fledged adoption of the human rights approach would also imbue the debates on social development with a context and substance that would resonate with the many civil society groups across the world that are engaged in the struggle for social justice.

    At the Vienna World Conference on Human Rights in 1993, governments recognized the primacy of human rights in all policy formulation. They made political commitments to uphold human rights and fundamental freedoms as the birthright of all human beings and declared that ‘their protection and promotion is the first responsibility of Governments’. The Copenhagen Summit in 1995, was a missed opportunity to build upon the Vienna Declaration and Plan of Action.

    Such a focus on human rights, in particular economic, social and cultural rights, is all the more critical as we are faced today with growing inequality, poverty and social exclusion. It can provide for a sharper critique of government responsibility and provide benchmarks for interventions by all sectors of society, including those who are marginalised and suffer discrimination.

    The existing international human rights instruments and UN monitoring mechanisms already provide a framework and confer upon states the legal obligations to protect, promote, and fulfill human rights.

    In addition to the legally binding international Conventions and Covenants that protect basic economic, civil, cultural, social and political rights, there exist instruments of a more declaratory nature such as the Declaration on the Right to Development (see below). These form useful points of departure for articulating and putting into practice collective rights, such as the right to a safe environment. Certain instruments also promote the rights of specific population groups, such as women, indigenous and tribal peoples, minorities, and disabled persons.

    Viewed from the perspective of people and communities fighting for adequate food, heath care, housing and living conditions, education, and a voice and representation on political bodies, these instruments provide a bulwark, a standard to aspire to, and for civil society groups, a set of rights to be claimed.

    Several fundamental human rights principles are key to building and sustaining social development. The principle of non-retrogression obliges states not to backtrack on social achievements. The principle of non-discrimination implies that human rights accrue to all without distinction of “race, colour, sex, language, religion, political or other opinion, national or ethnic origin, property, birth or other status” (common Article 1, International Human Rights Covenants). This implies in addition that affirmative action must be taken by states to ensure that vulnerable and marginalized communities can enjoy human rights. The principle of progressive realization dictates that States must demonstrate that they are consistently taking steps to promote and implement economic, social and cultural rights.

The human right to development

    The Vienna Declaration and POA state that the right to development is “a universal and inalienable right and an integral part of fundamental human rights”. This right is well-articulated in the Declaration on the Right to Development.

    The advantages of integrating human rights into the development perspective are many:

  • The rights contained in the international instruments would become imperatives of development policies and priorities, not measures to offset the possible negative effects of economic or other policies.
  • Fundamental human rights principles would become organizing criteria for devising development policies. Non-discrimination, for example, would dictate that development become an empowering process without discrimination on any basis.
  • States would have to balance international and national commitments, and ensure that the global environment is conducive to the realization of the human right to development.

The role of civil society

    One of the lasting impacts of integrating development and human rights is the greater importance of the role to be played by civil society. The right to contribute to the enjoyment of economic, social, cultural and political rights as a central tenet of the right to development indicates that the actions of civil society in promoting the human rights agenda are critical. Across the world, there are civil society campaigns and movements on housing, food, debt, adjustment, trade, farmers’ rights, and campaigns on specific communities such as indigenous people, fishworkers and small farmers.

    Civil society groups can be key players in the formulation, monitoring and, where possible, implementation of development policies. Their experience with pursuing the right to development brings the valuable insight that states have to reallocate existing resources to meet development objectives. Such a reallocation/redistribution needs to be balanced with targeted support from international cooperation, as indicated by general obligations from instruments such as the International Covenant on Economic, Social and Cultural Rights (ICESCR).

UN Treaty Bodies

    The implementation of all the international human rights Conventions/Covenants is monitored by UN treaty bodies. The UN Committee for Economic, Social and Cultural Rights (CESCR), for example, has accumulated a great deal of experience in the human rights dimensions of social policy formulation and practice. The Committee’s Concluding Observations and General Comments provide fertile ground to grasp the inextricable link between development and human rights. It is critical that the Summit Review acknowledges and draws lessons from the work of the ICESCR.

    A recent development in the field of economic, social and cultural rights holds great promise: a draft optional protocol to the ICESCR is before the UN Commission on Human Rights, which would make it possible for individuals and groups to petition the CESCR regarding violations of these rights. This would be particularly useful for marginalised communities. Many rights such as the right to food and housing have a collective component that would be further clarified through such a mechanism.

    The optional protocol would serve several other purposes, such as:

  • encouraging states to adopt legislative and policy measures to comply with the obligations arising out of the ICESCR;
  • promoting a better understanding at all levels of the ICESCR and of the whole UN human rights protection system;
  • providing a more precise definition of ESC rights and thereby assisting in overcoming erroneous arguments on the non-justiciability of ESC rights, and the inability of states to implement them without adequate resources;
  • clarifying the nature of state obligation to protect vulnerable communities that are affected by the adverse impact of multilateral trade, investment, finance, SAP and debt policies.

Commission on Human Rights and the Sub-Commission for the protection and promotion of human rights

    In relation to the issue to be tackled at the Copenhagen Review, the work of the Commission on Human Rights, and the Sub-Commission on the Protection and Promotion of Human Rights, should be of interest. The Commission has mandates on rights related to education, extreme poverty, debt and structural adjustment. The Sub-Commission has the UN mandate on globalisation and human rights, including ongoing studies on the impact of trade, investment and finance on human rights. The Sub-Commission also has a Working Group on TNCs and human rights, and is considering an interdisciplinary ‘Social Forum’. It is also undertaking an important study on the relationship between the enjoyment of economic, social and cultural rights, and the promotion of the realization of the right to drinking water supply and sanitation.

Recommendations

    The Summit review should send a clear message that States need to take seriously their commitment to promote human rights – including economic, social and cultural rights – as a first responsibility.
Specifically, the Summit review must recommend that:

  1. states that have not ratified international human rights instruments do so and those that have made reservations or declarations remove these;
  2. states, in particular the members of the UN Commission on Human Rights, move rapidly to process the Optional Protocol to the ICESCR;
  3. the office of the High Commissioner of Human Rights be strengthened;
  4. the work of UN human rights bodies attempting to promote economic, social and cultural rights be supported;
  5. states urge the IFIs and the World Bank to integrate human rights into their work;
  6. states urge UN agencies, taking the lead from UNICEF, to both adopt and promote relevant treaty bodies (for example the UNDP with the CESCR). Also UN agencies need to integrate human rights objectives into their development activities; and
  7. states should develop indicators and benchmarks to implement and monitor ESC rights.
  8. the draft code of conduct on the right to food, affirmed by the Rome World Food Summit, should be processed through the UN system.

    The Summit review process needs to acknowledge the pioneering work being undertaken by the UN human rights bodies such as the CESCR and the Sub-Commission on human rights. It is particularly critical that the Sub-Commission’s work on globalization and human rights receives recognition for its vital role both in analyzing the negative social impact of economic globalization and in proposing remedies to bring international economic institutions to integrate human rights into their work. The Summit review should seek support for the ongoing work of the Sub-Commission Working Group on TNCs and human rights to draft a legal framework for TNCs.

    The Summit review should also recommend ways and means through which ongoing civil society efforts can be recognized, and collaborative efforts developed within the UN system. Mechanisms need to be created at all levels to ensure that civil society groups can continue to play the crucial role of holding local, national, regional and international actors accountable for respecting human rights.

    An inevitable focus, if the Summit review is serious in addressing the challenges people and communities face today, is on countering the severe social impact that economic globalization is having on women and children, and vulnerable communities such as marginal farmers, indigenous people, fishworkers and rural agricultural labour. The Summit review must vigorously demand reform of the multilateral processes and the international institutions, to make them accountable to international human rights principles and standards.

    The review provides an opportunity to restate, with the sharper focus that a human rights perspective can bring, all the social objectives stated in the World Conference Declaration and Programmes of Action (Environment, Population, Women, Habitat). The commitments made by the world’s governments in Vienna, the call of the UN Secretary General to mainstream human rights, the considerable civil society developments, the widespread ratification of international human rights instruments and the numerous active UN mechanisms in the field of economic, social and cultural rights all call out for human rights to be universally put into practice.

    It is time that global summits and their reviews, led by the Social Summit review, started providing policy prescriptions, devising indicators and setting targets for social achievement based first and foremost on human rights imperatives. Until they do, a substantial part of humanity will remain vulnerable to national development and economic globalisation policies blindly driven by the neo-liberal mindset.


Miloon Kothari is the Convener of the Housing and Land Rights Committee of the Habitat International Coalition, based in New Delhi. Secretariat: B-28 Nizamuddin East, New Delhi 110013, India. Tel./Fax: +91 11 462 8492;
Email: hichrc@ndf.vsnl.net.in
Email for UN Liaison Office, Geneva: hic-hrc@iprolink.ch