restricted access A "Violations Approach" for Monitoring the International Covenant on Economic, Social and Cultural Rights
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A “Violations Approach” for Monitoring the International Covenant on Economic, Social and Cultural Rights 1

I. Introduction

If economic, social, and cultural rights are to be taken seriously, there needs to be a change in the paradigm for evaluating compliance with the norms established in the International Covenant on Economic, Social and Cultural Rights 2 (hereinafter the Covenant). “Progressive realization,” the current standard used to assess state compliance with economic, social, and cultural rights, is inexact and renders these rights difficult to monitor. Monitoring the major international human rights covenants is central to the development of a meaningful international human rights system. Otherwise, countries that ratify or accede to specific human rights instruments cannot assess their own performance in promoting effective realization of the enumerated rights. Further, without effective monitoring, states cannot be held accountable for implementation of, or be made liable for violation of, these rights.

To assist states parties in fulfilling their obligations and to enable international monitors to evaluate a country’s performance, each of the [End Page 23] major international human rights covenants requires the regular submission of reports by states parties for review by UN established committees of experts. However, these requirements do not ensure necessarily that effective monitoring will take place. Monitoring state compliance is a complex and exacting process with numerous political and methodological prerequisites. Although effective monitoring requires the systematic collection and analysis of appropriate data, the determination of which data are relevant depends on translating the abstract legal norms, in which the various human rights covenants are framed, into operational standards. To accomplish this operationalization, specific enumerated rights (for example, the right to education) need to be adequately conceptualized and developed to measure implementation or to identify potential violations. These indicators, some of which may be based on statistical data, can then provide yardsticks to evaluate state compliance. Otherwise, the preparation and review of reports can be little more than a formality.

This article reviews the problems that the current performance standard of “progressive realization” entails for monitoring economic, social, and cultural rights, and proposes a “violations approach” as a more feasible and effective alternative. The violations approach advocated here focusses on three types of violations: (1) violations resulting from actions and policies on the part of governments; (2) violations related to patterns of discrimination; and (3) violations taking place due to a state’s failure to fulfill the minimum core obligations contained in the Covenant. In order to illustrate examples of violations of the rights enumerated in the Covenant, this article analyzes several years of reports by the UN Committee on Economic, Social and Cultural Rights.

II. Current Absence of Effective Monitoring

At first glance, the assertion that little effective or systematic monitoring of the Covenant is taking place seems to be at variance with the current international human rights system. The principle that the two major categories of rights, civil and political rights on the one hand and economic, social, and cultural rights on the other, are interrelated, interdependent, and indivisible constitutes one of the fundamental underpinnings of the international consensus on human rights norms. This principle has been endorsed on numerous occasions by the General Assembly, the Economic and Social Council, the Commission on Human Rights, and international conferences, the most recent being the 1993 World Conference on Human Rights. 3 In [End Page 24] addition to the Covenant, several other international human rights instruments enumerate economic, social, and cultural rights. These include the International Convention on the Elimination of All Forms of Racial Discrimination, 4 the Convention on the Elimination of All Forms of Discrimination Against Women, 5 and the Convention on the Rights of the Child. 6 Countries which become states parties to these instruments also assume the international obligation to submit periodic reports to the United Nations on the measures that they have adopted and the progress made in achieving compliance. As of March 1995, 130 countries had become states parties to the Covenant. 7

Currently, states parties to the Covenant are requested to submit an initial report dealing with the entire Covenant within two years of the Covenant’s entry into force and to submit a periodic report every five...