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Five Challenges to Legalizing Economic and Social Rights

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Abstract

In recent years, dozens of human rights non-governmental organizations (NGOs) across the globe have begun to advocate for economic and social rights, which represents a significant expansion of the human rights movement. This article investigates a central strategy that NGOs have pursued to realize these rights: legalization. Legalization involves specifying rights as valid legal rules and enforcing them through judicial or quasi-judicial processes. After documenting some of the progress made toward legalization, the article analyzes five unique challenges involved in legalizing economic and social rights. It is important to identify these challenges because they must be overcome if the human rights movement wishes to refute the notion that economic and social rights are inherently non-justiciable (and therefore, to some, invalid as rights). These challenges also point to the possibility that legalization is not the only, or even the best, strategic pathway to realize economic and social rights effectively.

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Notes

  1. Philip Alston, quoted in Hunt (1996).

  2. For a more detailed description and analysis of this trend, see Chong (2006).

  3. Although I refer to economic and social rights throughout the article, my interest is specifically in “subsistence rights,” a subset of economic and social rights that deals with the right to an adequate standard of living, including food, water, clothing, housing, and health. Subsistence rights are enshrined in the Universal Declaration of Human Rights (UDHR) art. 25, in the International Covenant on Economic, Social and Cultural Rights (ICESCR) art. 11, and other international treaties. These, according to Henry Shue, are some of the most basic human rights, whose “enjoyment is essential to all other rights.” (Shue 1996) There is an undeniable empirical and theoretical link between extreme poverty and the inability to secure basic subsistence needs; thus, this article discusses the ways in which economic and social rights can help combat extreme poverty.

  4. See, for example, Merali and Oosterveld (2001); Von Tigerstrom (2001).

  5. Amy Gutman, cited in Ignatieff (2001).

  6. FoodFirst Information and Action Network (hereafter FIAN) (2001). The legal interpretation of rights is certainly not the only valid conceptualization. Within the economic and social rights movement itself, there appear to be two distinct, but not mutually exclusive, understandings of what it means to call something a “right.” For one set of actors, which includes grassroots social movement organizations, relief and development NGOs, and UN development agencies, invoking human rights is primarily a moral or ethical plea used to mobilize a particular constituency into action or guide organizational policy. See Chong (2006).

  7. Ibid.

  8. Offenheiser and Holcombe (2001). According to a senior staff member at Amnesty International, “the crucial thing is legal accountability and the legal framework. That’s absolutely essential, and that’s why human rights organizations are full of lawyers. It’s natural.” Based on author’s interview in June 2003 in Chiang Mai, Thailand.

  9. See Blyberg and Buhl (1997). See also Piovesan (2004).

  10. See Blyberg and Buhl (1997); see also Hunt (1996).

  11. Based on a workshop given by a US-based human rights lawyer, in June 2003 at the inaugural ESCR-Net Conference in Chiang Mai, Thailand.

  12. Author’s interview with a member of a national human rights commission, in June 2003 in Chiang Mai, Thailand.

  13. COHRE (2003). See also FIAN International (2003).

  14. Justice Albie Sachs, quoted in Jaichand (2004).

  15. Author’s interview with an international human rights lawyer, on June 9, 2003 in Chiang Mai, Thailand.

  16. Author’s interview with an international human rights lawyer, on June 10, 2003 in Chiang Mai, Thailand.

  17. Author’s interview with a lobbyist for an international human rights organization, on June 10, 2003 in Chiang Mai, Thailand.

  18. For a sample list, see Roth (2004).

  19. Ibid.

  20. See, for example, Koskenniemi (1999).

  21. Ibid.

  22. Based on author’s interview with a senior staff member at Bread for the World, in June 2004 in Washington DC.

  23. Alston (1990). Because the U.S. is a federal system, some individual states have enacted stronger protections for economic and social rights than those which exist at the national level. For example, the New York state constitution contains housing and education provisions that have been interpreted by state courts to impose positive obligations upon New York. See ESCR-Net (2008).

  24. The 1996 law eliminated the Aid to Families with Dependent Children (AFDC) program, which acted as an entitlement for the most vulnerable populations, and replaced it with TANF, which imposed time limits on assistance, work requirements, overall funding cuts, block grants to U.S. states, and incentives for states to reduce the number of people served. See Mittal and Rossett (1999).

  25. Based on author’s interview with a senior staff member at Bread for the World, in June 2004 in Washington DC.

  26. See the comments by Hansen (2005).

  27. This complaint was echoed several times by various sources at the inaugural ESCR-Net Conference in Chiang Mai, Thailand on June 8–10, 2003. See also Matthews (2004).

  28. Quoted from an African human rights activist, in a workshop on June 8, 2003 at the inaugural ESCR-Net Conference in Chiang Mai, Thailand.

  29. Some examples may include positive vs. negative obligations; primary, secondary, and tertiary duties; progressive realization; maximum available resources; minimum core content; and so on. Legal institutions and complaints procedures can also seem like an insurmountable hurdle for many organizations.

  30. Quoted from a Latin American human rights activist, in a workshop on June 10, 2003 at the inaugural ESCR-Net Conference in Chiang Mai, Thailand.

  31. In other words, even acknowledging the complexities and controversies surrounding civil and political rights, there is currently more consensus in determining the multiple causes and solutions for an unfair election than, say, the multiple causes and solutions for extreme deprivation. An interesting question is whether there was similar ideological controversy surrounding civil and political rights during their infancy, which some human rights advocates have argued to be the case. This would again suggest that the economic and social rights movement just needs greater time, effort, and resources to develop momentum and get beyond the existing cultural and political hurdles. For further discussion, see Buergenthal (1997); Puta-Chekwe and Flood (2001); Von Tigerstrom (2001).

  32. See generally, Merali and Oosterveld (2001); Martin (1977).

  33. For an elaboration of this argument within the international development field, see Goldsworthy (1988).

  34. See Leonard Rubenstein’s dialogue with Roth (2004).

  35. See for example, Hunt (1996); Robinson (2004).

  36. As I will discuss below, this is why Kenneth Roth believes that human rights organizations should focus their energies on the relatively clear and winnable cases such as these. See Roth (2004).

  37. See COHRE (2003). A senior activist with an international human rights organization noted in an interview with the author on June 10, 2003 in Chiang Mai, Thailand that 80–90% of their legal case work involved states’ obligations to respect and protect economic and social rights. Only recently have they increasingly focused on more “positive” obligations to fulfill rights.

  38. FIAN (2003); Aiken (1977); Jones (1999). Others who take the maximum position cite poverty as a “violation” of economic and social rights without much attempt at all to identify who is responsible. See Mittal and Rosset (1999).

  39. For implicit arguments in this regard, see Ziegler (2004); Roth (2004).

  40. See for example, Rubenstein (2004). See also International Council on Human Rights Policy (2003).

  41. For example, Leonard Rubenstein argues that advocacy for greater resources for economic and social rights “tends to enlarge the pot” of state resources, rather than trading off with other important needs (Rubenstein 2004). He cites the current Bush Administration’s new funds for HIV/AIDS as a supporting example. The Bush Administration is an interesting case, rather, to support the notion that you cannot avoid trade-offs in setting budget priorities. For 4 years, the U.S. borrowed its way into higher spending and tax cuts across the board, but Bush’s more recent budgets show that, eventually, priorities have to be set (in this case, against most non-defense discretionary items). An ethical philosopher who downplays the trade-offs between rights is Henry Shue, who uses his “priority principle” to argue that basic subsistence and security rights should hold priority over other non-basic rights and preferences (Shue 1996). This is an attractive analytical framework. However, it does not recognize the difficulties in measuring how much of a public good like military security is necessary, or existent at a particular time.

  42. See Robinson (2004); Roth (2004). Personally, I believe along with many human rights activists that the U.S. spends far too much money on its own military. However, as a movement, we still have to recognize the trade-offs involved and make a persuasive argument to cut military spending in favor of social spending in the face of political circumstances that make military spending tremendously easy to sell to the public.

  43. Author’s email communication with a U.S.-based professor of human rights in 2004.

  44. “Poverty and Inequality: A Question of Justice?” The Economist, 11 March 2004; available from http://www.economist.com/opinion/displayStory.cfm?story_id=2499118; accessed September 2005.

  45. Note that “reasonable” does not mean “accurate.” I believe many of these excuses to be exactly that—excuses for failing to fulfill an obligation. However, when an actor can persuasively argue to its constituency that it has no obligations—obligations over which experts themselves disagree—then the effectiveness of human rights arguments are obviously diminished.

  46. See for example, Roth (2004); Roth (2004); Riches (1997b).

  47. See for example, Lappe and Collins (1977); Poppendieck (1997); Alston (1990).

  48. Ibid., 66.

  49. See for example, Otto (2001); Nagel (1977); Piovesan (2004); Rittich (2001).

  50. Çali and Meckled-Garcia (2006). This “post-positivist” approach to the law includes so-called “New Haven” theorists such as Harold Laswell and Myres McDougal, feminist theorists such as Hilary Charlesworth, critical legal scholars such as David Kennedy and Martti Koskenniemi, and “living constitutionalists” such as Jack Balkin and Cass Sunstein.

References

  • Abbott Kenneth W., Keohane Robert O., Moravcsik Andrew, Slaughter Anne-Marie, Snidal Duncan (2000) “The Concept of Legalization,”. International Organization 54(3):413 footnote 26

    Article  Google Scholar 

  • Addo Michael K. (1992) “Justiciability Re-examined,”. In: BeddardRalph, HillDilys M. (eds) Economic, Social and Cultural Rights: Progress and Achievement. St. Martin’s, New York, p 97

    Google Scholar 

  • Aiken William (1977) “The Right to be Saved from Starvation,”. In: Aiken W, La Follette H (eds) World Hunger and Moral Obligation. Prentice-Hall, Englewood Cliffs, p 87

    Google Scholar 

  • Alston Philip (1990) “U.S. Ratification of the Covenant on Economic, Social and Cultural Rights: The Need for an Entirely New Strategy,”. American Journal of International Law 84:372

    Article  Google Scholar 

  • Balkin Jack M., “Brown, Social Movements, and Social Change,” Delaware Brown Symposium, 2005; available from http://www.yale.edu/lawweb/jbalkin/articles/brownsocialmovementsandsocialchange1.pdf; accessed March 8, 2006, 6

  • Barrantes Alexandra N. (2004) “What Matters Most for Poverty Reduction? Inequality and Economic Growth in Perspective,”. Swords and Ploughshares 14(1):36

    Google Scholar 

  • Baxi Upendra (2002) The Future of Human Rights. Oxford University Press, Oxford, p 1

    Google Scholar 

  • Blyberg Ann, Buhl Dana (1997) Ripple in Still Water: Reflections by Activists on Local- and National-level Work on Economic, Social and Cultural Rights. Institute for International Education, International Human Rights Internship Program, Washington, DC Ch. 1

  • Buergenthal Thomas (1997) “The Normative and Institutional Evolution of International Human Rights,”. Human Rights Quarterly 19(4):706

    Article  Google Scholar 

  • Çali Basak, Meckled-Garcia Saladin (2006) “Human Rights Legalized—Defining, Interpreting, and Implementing an Ideal,”. In: ÇaliBasak, Meckled-GarciaSaladin (eds) The Legalization of Human Rights. Routledge, London, p 1

    Google Scholar 

  • Centre on Housing Rights and Evictions (COHRE) (2003) “50 Leading Cases on Economic, Social and Cultural Rights: Summaries”. Centre on Housing Rights and Evictions, ESC Rights Litigation Programme, Working Paper No. 1, Geneva, p 5

    Google Scholar 

  • Chong Daniel, Reconstructing Rights: What Emerging Practice on Subsistence Rights Implies for Human Rights Politics (Unpublished dissertation, 2006)

  • Editors (2004) “Summaries of Recent ESC Rights Cases,”. Housing and ESC Rights Quarterly 1:5–6

    Google Scholar 

  • ESCR-Net, “Case Law Database,” available from http://www.escr-net.org/caselaw; accessed May 19, 2008.

  • FIAN International (July 2003) “From Legislative Framework to Framework Legislation: A Strategy for Implementing the Right to Food,”. Right to Food Journal 1:10

    Google Scholar 

  • FoodFirst Information and Action Network, “Spearheading the Right to Food: FIAN is 15,” Hungry for What is Right (December 2001), 23

  • Goldsworthy David (1988) “Thinking Politically about Development,”. Development and Change 19:504–530

    Article  Google Scholar 

  • Hansen Keith (2005) “Economic and Social Rights and the Right to Health,” Session 3 in a report from the Harvard Law School Human Rights Program in September 1993; available from http://www.law/harvard.edu/programs/hrp/Publications/economic1.html, accessed July 1, 2005

  • Hirschl Ran (2000) ‘Negative’ Rights vs. ‘Positive’ Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order,”. Human Rights Quarterly 22(4)

    Article  Google Scholar 

  • Hunt Paul (1996) Reclaiming Social Rights: International and Comparative Perspectives. Dartmouth, Brookfield, p xv

    Google Scholar 

  • Ignatieff Michael (2001) Human Rights as Politics and Idolatry. Princeton University Press, Princeton, p 55

    Google Scholar 

  • International Council on Human Rights Policy (2003) “Duties sans Frontieres: Human Rights and Global Social Justice”. International Council on Human Rights Policy, Versoix, p 35

    Google Scholar 

  • Jaichand Vinodh (2004) “Public Interest Litigation Strategies for Advancing Human Rights in Domestic Systems of Law,”. Sur: International Journal on Human Rights 1(1):131

    Google Scholar 

  • Jones Charles (1999) Global Justice: Defending Cosmopolitanism. (64)Oxford University Press, Oxford

    Google Scholar 

  • Koskenniemi Martti (1999) “Letter to the Editors of the Symposium,”. The American Journal of International Law 93(2):354

    Article  Google Scholar 

  • Langford Malcolm (2004) “The Question of Resources,”. Housing and ESC Rights Law Quarterly 1(3):4

    Google Scholar 

  • Lappe Frances Moore and Collins Joseph (1977) Food First: Beyond the Myth of Scarcity. Ballantine, New York, p 4

    Google Scholar 

  • Lockhart Charles (2003) “Obstacles on the Road to an Overlapping Consensus on Human Rights,”. In: MonshipouriMahmood, EnglehartNeil, NathanAndrew J , PhilipKavita (eds) Constructing Human Rights in the Age of Globalization. M.E. Sharpe, London, p 272

    Google Scholar 

  • Martin Edwin M. (1977) “Focus on Nutrition: Who Should Pay for What?,”. In: BrownPeter G, ShueHenry (eds) Food Policy: The Responsibility of the United States in the Life and Death Policy. Free Press, New York, p 336 among many others

    Google Scholar 

  • Matthews Susan, “Poverty Reduction Strategies and Human Rights,” (ICCO Position Paper, Mumbai, India, 2004), 21

  • Mendez Emilio Garcia (2004) “Origin, Concept, and Future of Human Rights: Reflections for a New Agenda,”. Sur: International Journal on Human Rights 1(1):16

    Google Scholar 

  • Merali Ishafan and Oosterveld Valerie, eds., Giving Meaning to Economic, Social and Cultural Rights (Philadelphia, PA: University of Pennsylvania Press, 2001), 1

  • Mittal Anuradha and Rosset Peter, eds., America Needs Human Rights (Oakland, CA: Food First Books, 1999), 173

  • Mivelaz Natalie (2004) “Report on the First Meeting of the Working Group on an Optional Protocol to the ICESCR,”. Housing and ESC Rights Law Quarterly 1(1):10

    Google Scholar 

  • Nagel Thomas (1977) “Poverty and Food: Why Charity is not Enough,”. In: BrownPeter G., ShueHenry (eds) Food Policy: The Responsibility of the United States in the Life and Death Policy. Free Press, New York, p 58

    Google Scholar 

  • Odinkalu Chidi Anslem (2000) “Why More Africans Don’t Use Human Rights Language,”. Human Rights Dialogue 2(1):3

    Google Scholar 

  • Offenheiser Raymond C. and Holcombe Susan (2001) “Challenges and Opportunities of Implementing a Rights-based Approach to Development: An Oxfam America Perspective”. Oxfam America, Oxford, p 26

    Google Scholar 

  • Otto Dianne (2001) “Defending Women’s Economic and Social Rights: Some Thoughts on Indivisibility and a New Standard of Equality,”. In: MeraliIshafan, OosterveldValerie (eds) Giving Meaning to Economic, Social and Cultural Rights. University of Pennsylvania Press, Philadelphia, p 52

    Google Scholar 

  • Piovesan Flavia (2004) “Social, Economic and Cultural Rights and Civil and Political Rights,”. Sur: International Journal on Human Rights 1(1):26

    Google Scholar 

  • Poppendieck Janet (1997) “The USA: Hunger in the Land of Plenty,”. In: RichesGraham (ed) First World Hunger: Food Security and Welfare Politics. St. Martin’s, New York, p 134

    Google Scholar 

  • Puta-Chekwe Chisanga, Flood Nora (2001) “From Division to Integration: Economic, Social, and Cultural Rights as Basic Human Rights,”. In: MeraliIshafan, OosterveldValerie (eds) Giving Meaning to Economic, Social and Cultural Rights. University of Pennsylvania Press, Philadelphia, p 44

    Google Scholar 

  • Riches Graham (1997b) “Hunger, Welfare and Food Security: Emerging Strategies,”. In: RichesGraham (ed) First World Hunger: Food Security and Welfare Politics. St. Martin’s, New York, p 170

    Google Scholar 

  • Riches Graham (1997a) “Hunger in Canada: Abandoning the Right to Food,”. In: RichesGraham (ed) First World Hunger: Food Security and Welfare Politics. St. Martin’s, New York, p 68

    Google Scholar 

  • Rittich Kerry (2001) “Feminism After the State: The Rise of the Market and the Future of Women’s Rights,”. In: MeraliIshafan, OosterveldValerie (eds) Giving Meaning to Economic, Social and Cultural Rights. University of Pennsylvania Press, Philadelphia, p 96, 98

    Google Scholar 

  • Robinson Mary (2004) “Advancing Economic, Social, and Cultural Rights: The Way Forward,”. Human Rights Quarterly 26(4):866

    Article  Google Scholar 

  • Roth Kenneth (2004) “Defending Economic, Social and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,”. Human Rights Quarterly 26(1):72

    Article  Google Scholar 

  • Roth Kenneth (2004) “Response to Leonard S. Rubenstein,”. Human Rights Quarterly 26(4):876

    Article  Google Scholar 

  • Roth Kenneth (2004) Human Rights Quarterly 26(4):845–881

    Article  Google Scholar 

  • Rubenstein Leonard S. (2004) “How International Human Rights Organizations Can Advance Economic, Social, and Cultural Rights: A Response to Kenneth Roth,”. Human Rights Quarterly 26(4):846

    Google Scholar 

  • Schulz-Forberg Hagen, Nolan Aoife (2004) “Legislation: The Homelessness (Scotland) Act 2003—An Analysis,”. Housing and ESC Rights Law Quarterly 1(1):9

    Google Scholar 

  • Sen Amartya, Development as Freedom (New York: Alfred A. Knopf, 1999), 164

  • Shue Henry (1996) Basic Rights: Subsistence, Affluence and U.S. Foreign Policy, 2nd edn. Princeton University Press, Princeton, p 5, 19

    Google Scholar 

  • Shultz Jim (2002) “Promises to Keep: Using Public Budgets as a Tool to Advance Economic, Social and Cultural Rights”. Ford Foundation and FUNDAR, Cuernavaca, p 20 January

    Google Scholar 

  • Sunstein Cass R (2004) The Second Bill of Rights: FDR’s Unfinished Revolution and Why We Need it More than Ever. Basic Books, New York, p 30

    Google Scholar 

  • Tedeschi Sebastian, Rossi Julieta (2004) “The Villa La Dulce Case: Including the Excluded in Social Housing Plans,”. Housing and ESC Rights Law Quarterly 1(1):4

    Google Scholar 

  • Von Tigerstrom Barbara (2001) “Implementing Economic, Social and Cultural Rights: The Role of National Human Rights Institutions,”. In: MeraliIshafan, OosterveldValerie (eds) Giving Meaning to Economic, Social and Cultural Rights. University of Pennsylvania Press, Philadelphia, p 139

    Google Scholar 

  • Yamin Alicia Ely (2005) “The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social, and Cultural Rights into the Mainstream Human Rights Agenda,”. Human Rights Quarterly 97(4):1239

    Google Scholar 

  • Yates Michael (2004) “Poverty and Inequality in the Global Economy,” Monthly Review 55, no. 9

    Google Scholar 

  • Ziegler Jean, “The Right to Food” (United Nations Commission on Human Rights, 2004), 4

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  1. Department of Political Science, Rollins College, Winter Park, FL, USA

    Daniel P. L. Chong

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Chong, D.P.L. Five Challenges to Legalizing Economic and Social Rights. Hum Rights Rev 10, 183–204 (2009). https://doi.org/10.1007/s12142-008-0094-y

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