Another Step Towards Indivisibility: Identifying the Key Features of Violations of Economic, Social and Cultural Rights

Moralists used to complain that international law was impotent in curbing injustices of nation-states, but it has shown even less capacity to rein in markets that, after all, do not even have an address to which subpoenas can be sent. As the product of a host of individual choices or singular corporate acts, markets offer no collective responsibility. Yet responsibility is the first obligation of both citizens and civic institutions. ¹

I. Introduction

Of all the domains where state and intergovernmental action on human rights have failed to achieve anything more than modest success, the development of effective measures for the prevention and remedying of violations of economic, social and cultural rights must surely classify as one of the most glaring. Although the international community has consistently reiterated the proposition that all human rights are intertwined within a coherent system of law, responses to violations of economic, social and cultural rights—both procedural and substantive—have paled in comparison to the seriousness accorded infringements of civil and political rights. ²

This situation prevails even though perhaps no other human rights treaty is violated in as obdurate or frequent a way as the International Covenant on Economic, Social and Cultural Rights, ³ despite much conceptual and interpretive progress in this area of law over the past decade. This state of affairs has little, however, to do with the nature of the obligations and rights established in the ICESCR. Problems of perception and resolve, rather than any inevitable limitation of law or jurisprudence, have kept economic, social and cultural rights wallowing in the relative purgatory of global efforts to secure human rights.

For instance, when someone is tortured or when a person’s right to speak freely is restricted, observers almost unconsciously hold the state responsible. However, when people die of hunger or thirst, or when thousands of urban poor and rural dwellers are evicted from their homes, the world still tends to blame nameless economic or “developmental” forces, or the simple inevitability of human deprivation, before placing liability at the doorstep of the state. Worse yet, societies increasingly blame victims of such violations for creating their own dismal fates, and in some countries, they are even characterized as criminals on this basis alone. ⁴

These truncated visions of human rights have been a major force in careening clear and irrefutable violations of economic, social and cultural rights off the international and national human rights agendas. For reasons too well-known and extensive to outline here, most would recoil in horror at the deprivation of freedom of life when active violence is involved, but display considerably more tolerance when human suffering or death stem from preventable denials of the basic necessities of life such as food, health care or a secure place to live. Ambivalence towards violations of economic, social and cultural rights—whether by those entrusted with their implementation or those mandated to monitor compliance with them—remains commonplace.

Altering such attitudes will not be an easy undertaking. Few states and state institutions have accepted in practice the notion of the indivisibility of all human rights—the civil and political combined with the economic, social and cultural rights. One need only witness the excessive levels of noncompliance with the International Covenant on Economic, Social and Cultural Rights, the large number of countries that have yet to ratify this text, ⁵ and the widespread refusal of governments to give active support to an Optional Protocol complaint procedure under the ICESCR ⁶ to observe how far human rights law and practice has yet to actually travel down the elusive road of indivisibility.

It has not only been the hypocrisy of states and institutions comprised of states, however, that has made the prevention and remedying of violations of economic, social and cultural rights sound unrealistic. ⁷ On occasion, human rights activists and academics have played equally obstructionist roles. For example, one academic recently asserted that “so much progress remains to be made around the world in securing and implementing these basic rights [civil and political...