Amnesty International Toronto Organization

Regional Meeting

October 16, 2004

Workshop outline - ESC Rights

The WHATs, WHYs and HOWs of Amnesty International’s work on Economic, Social and Cultural Rights

Marilyn McKim & Wayne Smith

Addressing violations of civil and political rights keeps us plenty busy. Now we’re taking on the protection of economic, social and cultural rights! Can we do it? This workshop will explore why Amnesty made the decision, what we have done to the present and how our work is changing.

The 2001 International Council Meeting decided that AI’s mission should be "to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights."

Marilyn Welcome. What are the concerns of the participants?

Wayne What are ESC rights? What is their history?

The International Bill of Rights consists of several components. The first is the Universal Declaration of Human Rights. This general statement of principles was quickly and unanimously passed, (48 – 0, with eight abstentions), by the General Assembly of the United Nations on December 10, 1948, only two years after the establishment of the Commission on Human Rights.

However, this was only the first step. Drafted at the same time was a Covenant which would legally bind the states parties to specific steps to protect and promote human rights. It took eighteen years of haggling before this next step was accepted by the Assembly.

By now, the Covenant had been split into two Covenants, one on Civil and Political Rights, and one on Economic, Social and Cultural Rights. Article 41 of the Covenant on Civil and Political Rights, which established the complaint procedure between states, had also been separated. The mechanism allowing individuals to make complaints had been put into an Optional Protocol to the Covenant on Civil and Political Rights. And the United Nations had grown. When the International Bill of Rights finally passed the General Assembly on December 16, 1966, more than 100 nations said "Yes". None said "No".

But still the process was not at an end. The various parts of the Bill did not become binding until they had been separately ratified by a certain number of nations. The Covenants did not “enter into force” until 1976, and Article 41 and the Optional Protocol until 1979. Many nations which voted for the Bill in the General Assembly have still not ratified all the components.

During the long process of drafting and passing the Covenants, there was a strong shift in emphasis from the traditional Civil and Political Rights towards Economic, Social and Cultural Rights. Of the 25 substantive rights defined in the UDHR, only five were concerned with economic rights. The Covenant on Economic, Social, and Cultural Rights expanded these, and added new rights.

What are these rights?

The first is the right to work, which includes the right of everyone to gain his or her living by work which he freely chooses or accepts. It also includes the obligation of governments to provide vocational guidance and training, and "techniques to achieve steady economic, social and cultural development and full and productive employment".

Not far behind is the right to get paid, a fair wage, equal remuneration for work of equal value, a decent living, safe and healthy working conditions, and, oh yes, the right to rest and leisure, paid vacations and paid public holidays.

We also have the right to form trade unions and labour federations and, yes Virginia, the right to strike (unless you’re in the police or the military.)

Social security, including social insurance, is listed as a fundamental human right.

The widest possible protection and assistance is accorded to the family, which is recognized as the fundamental group unit of society. Marriage must be entered into freely by the partners. Special protection is accorded to mothers and to children. Children must be protected from exploitation. Child labour is prohibited.

The right to an adequate standard of living is recognized, and the right to freedom from hunger.

We have the right to enjoy the highest attainable standard of physical and mental health. This requires provision for the healthy development of the child, the improvement of environmental and industrial hygiene, the prevention, treatment and control of disease, and the provision of medical care.

Everyone has the right to education, which is to be “directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms.” Primary education shall be compulsory, secondary education generally available, and higher education equally accessible to all. This requires schools, teachers, and a system of fellowships. Parents have the right to have their children educated in conformity with their own religious and moral convictions.

Finally, we all have the right to take part in cultural life and to enjoy the benefits of scientific progress. Authors and inventors have the right to enjoy the moral and material benefits of their creations. Governments are responsible for the conservation, development and diffusion of science and culture, and for the protection of academic freedom.

Marilyn What differences are there between the two sets of rights? What differences are required in our approach to each?

Before I talk about the differences, let me affirm that the principles we have applied all along to civil and political rights will be the same for cultural, or economic or social rights. These principles include impartiality, the application of international standards, and the commitment to the interdependence and indivisibility of all human rights.

What has always been different is how we work on the two sets of rights. You will know that Amnesty International promotes all human rights. The difference between them for Amnesty members has always been that we can take action when we witness a political or civil right being violated. We have been limited by our mandate to promoting rights in the economic, cultural and social spheres.

The main difference between the two sets of rights is to what extent they are justiciable, or subjected to the justice system. Complaints about violations of ESC rights cannot be taken to court as can complaints about civil and political rights violations. Civil and political rights have a tradition of enforcement; an individual can seek a remedy when they have been wronged. If Maher Arar alleges that he was tortured, he can speak up and an inquiry can be held to determine responsibility. But can a school girl in the Central African Republic speak up because she is being denied an education when boys her age are not? Aside from the fact that she is not likely to be taken seriously, there is no legal framework for her to lay a charge and to prosecute the individuals in the relevant government ministry for this abuse of her human right to schooling.

Let me tell you about a 20-something woman in Quebec named Louise Gosselin. She went to court to challenge a 1984 welfare law. The law set the welfare level for people under the age of 30 at roughly one third the level of older welfare recipients. Louise argued that the law violated her right under Section 15 to be free from discrimination and her right under Section 7 to security of person. She lost, but just. Five judges ruled against her. Four were on her side, agreeing with her argument that this was not just about government policy; this was about her rights. Louise should have been able to turn to the court system to enforce those rights and demand a remedy. We have a long way to go but my sense is that slowly but surely, justice systems around the world will begin to make room for the legal protection of ESC rights. Eventually abuses of serious economic rights or serious social rights will be justiciable, too.

Before we leave the subject of justiciability, let’s examine what happens at the international level. The International Covenants – one on Civil and Political Rights and the other on ESC Rights, both contain enforcement processes. So do some of the more specific treaties such as those dealing with discrimination against women, torture, the rights of children, racial discrimination, and the protection of migrant workers. Each has its own expert body established to oversee enforcement. To carry out that responsibility, the experts can require governments to submit reports and appear at face-to-face hearings. OK, so that’s something – some form of pressure on governments, some encouragement to live up to their obligations.

Four of the treaties go further, but only for civil and political rights. They permit individuals to bring specific complaints to the committee. The committee hears from the individual, then hears from the government, and then issues a report. The decision is not binding in a way that a court judgment is, but it is certainly powerful, authoritative and highly persuasive. This kind of mechanism should be made available for all rights.

You’ll be happy to hear that there is an effort underway to facilitate that complaints process. Governments are being urged to draft and then adopt an Optional Protocol to the International Covenant on ESC Rights in order to create a right of individual complaint. But governments are resisting, the Canadian government among them. They say they need more time to consider what ESC rights obligations mean before agreeing to allow individuals to complain about violations. Well, they’ve had 38 years since the ICESCR was adopted by the UN General Assembly in 1966.

What are the limits on our activity with regard to ESC rights? If we can’t “do it all”, then how do we decide what to act on?

Will we stop working on civil and political rights? No.

Will we stop working for individuals at risk and concentrate only on issues such as economic rights or social rights? No.

Even though we are the world’s largest human rights organization, many worry that taking on ESC rights will be too much work. The reality is that we never could respond to all serious violations of civil and political rights. We have always made choices about what to research and what to mobilize our members for. What we have done by declaring our intention to protect as well as promote ESC rights is to give ourselves the option of addressing a huge range of violations. From that huge pool, we need to make choices. And so, every six years, Amnesty members from around the world gather to create a plan. Once it is drafted and discussed and amended and passed, the Integrated Strategic Plan gives us the guidance we need to go about our work.

How do we make those choices? What criteria do we use for deciding what we can respond to?

Here’s the short list:

It must be a grave violation of fundamental rights.

We will examine whether discrimination is present.

Here’s the longer checklist:

Amnesty will focus on violations that are relatively easy to establish. The right to water might be one of these. (The right to self-determination, on the other hand, is not easy to establish because it is too difficult for Amnesty to take positions on territorial disputes and to say what counts as a legitimate claim. Also, self-determination is a collective right whereas Amnesty has traditionally concerned itself with rights held by individuals.)

Amnesty will rely on the skills that we are already good at: strong points like research and publicity. We already make recommendations about the reform of police practices and national human rights commissions; we could build on that experience to recommend reforms to institutions as well.

Amnesty will work on issues where ESC rights are crucial. For example, the right to continue cultivating one’s land for sustenance would take precedence over discrimination against a member of a minority group who had been refused employment.

Amnesty will work on issues where particular groups of people are deprived of the protection they should be entitled to.

If you were working at the International Secretariat and a researcher brought an issue to you with a request to decide whether Amnesty should take up the case, here are some of the elements you would look for:

The individual or group has no access to a formal institution to assert their rights.
The individual or group is living in extreme poverty.
The persons affected are suffering unlawful exercise of state power.
The abuses they are suffering and the exclusion they endure arise from discriminatory practices.

If the abuses described by the researcher are grave, and one or more of these four elements are present, you could consider taking action. The more elements that are present in a given situation, the stronger the case would be for action by Amnesty.

the right to mental and physical integrity
the right to freedom of conscience and expression
the right to freedom from discrimination.

Project work must also meet other operational criteria such as

building on existing expertise and programs of work
ensuring geographic balance, and
offering a reasonable chance of success in terms of research and action.

What are some examples of ESC rights we have been working on since the 2001 ICM decision?

Human Right to Water (IOR 10/002/2003)

How discrimination and misinformation impede the right against HIV/AIDS (POL 30/029/2003)

Violations of the right to work in Israel and the OccupiedTerritories (MDE 15/001/2003)

Discrimination against people with mental disabilities in Bulgaria (EUR 15/005/2002)

Back in April of 2003, Amnesty criticized North Korea with long-standing concerns about the use of torture and the death penalty, about inhumane prison conditions and suppression of freedom of movement. We also stated that North Korea has an obligation to guarantee equitable distribution of food to all without discrimination. 13 million people – over half the population – suffered from malnutrition in 2001 and 2002. Freedom from hunger and malnutrition, said Amnesty, is one of the most fundamental rights enshrined in the International Bill of Human Rights and is guaranteed under the International Covenant on Economic, Social and Cultural Rights. We reminded North Korea that it is a state party to the Covenant.

In June 2004, Amnesty published a report on violence against women in Turkey, naming abuses of social and cultural rights. radition, it says, is sometimes used as an explanation for acts of brutality against women who want to exercise choice in their lives. The real problem is discrimination in every area of life. Restricting girls’ right to education restricts their access to information about their rights. They don’t know that they have a right to be ree from violence and a right to access justice. 640,000 girls in Turkey are not receiving compulsory education. Girls are often forced into marriage. If they refuse, they face violence or even death. 50% of women in east and southeast Turkey were married without consent.

Amnesty has even made a statement on same-sex marriage. It was not made public but was distributed to the membership in response to queries from a few Sections around the world. Amnesty confirms that non-discrimination on the basis of sexual orientation is an internationally recognized principle. In other words, discrimination on the basis of sexual orientation would violate social rights. In fact, denial of equal civil recognition of same-sex relationships prevents many people from enjoying a whole range of other rights, such as rights to housing and social security.

Finally, expect the publication this month (October) of an Amnesty report on indigenous women in Canada that will tackle abuses of economic and cultural and social rights. The Stolen Sisters, it will expose the link between racial discrimination and violence against this sector of our population. Both government policies and attitudes in Canadian society make many indigenous women extremely vulnerable to violence and prevent them from accessing justice for wrongs they have endured.

What can we expect in the future, then, as far as Amnesty action on violations of economic, social and cultural rights?

We will continue to see Amnesty reports, country-related projects and sometimes actions related to them, appearing on aspects of ESC rights.

We are likely to be involved in an international campaign on and economic, social or cultural right in the next few years. The topic will be chosen based on the criteria described earlier: a grave violation, presence of discrimination, and a cross-cutting issue.

One possible example is a campaign on the right to primary education because the people denied primary education are invariably experiencing discrimination, because the lack of it impedes freedom of expression, and the alternative is child labour. Child labour makes a young person vulnerable to other violations of human rights and is in itself a violation of the right to leisure.

Another, more likely, example is a campaign against poverty. People experiencing severe poverty are invariably experiencing discrimination and abuses of many rights.

Brainstorming

In the late 1930s, Alex Osborn was the head of what would become the world’s largest advertising agency, BBDO, (he was the O), and he had a problem. He had noticed that the junior people in his company did not speak out in company meetings. He knew that these young people were potentially the greatest source of energy and creativity in his firm, but he realized that they were intimidated, and did not speak up out of fear. A lifelong student of creativity and imagination, he looked for a way to overcome inhibition and unleash creativity.

The method he came up with, inspired by the 400-year-old Hindu teaching technique known as Prai-Barshana, soon came to be known as ‘brainstorming’, and the word has entered our language as his invention has swept the world. It is now a standard tool for commercial companies, government, and non-profit organizations of all sorts.

Osborn developed four rules for this conferencing procedure, and here they are, as laid out in his 1953 book, “Applied Imagination”.

1. “Criticism is ruled out. Adverse judgement of ideas must be withheld until later.

2. “Free-wheeling” is welcomed. The wilder the idea, the better; it is easier to tame down than to think up.

3. Quantity is wanted. The greater the number of ideas, the more the likelihood of useful ideas.

4. Combination and improvement are sought. In addition to contributing ideas of their own, participants should suggest how ideas of others can be turned into better ideas; or how two or more ideas can be joined into still another idea.

In addition to the participants, a facilitator is needed, to stifle the criticism which inevitably to creeps out, and to stimulate the flow of ideas when it flags. Also needed are one or more ‘scribes’, to right down the ideas as they are shouted out.

We held a brainstorming session on acting to protect the ESC rights of the San people or “Bushmen” of Botswana.

Wrap up

The 2001 International Council Meeting adopted a mission that offers Amnesty substantial flexibility compared to the previous mandate. We are going to lose a few things, however.

It will not be easy to answer the question “Can Amnesty work on this?” We will have to, as a movement, begin to develop a collective judgment about what can and what cannot fit. This will take time, and will only become clear as specific cases are decided by the International Executive Committee and other decision makers in the organization.

Interpreting the mission and deciding on specific issues will require more resources than in the past. This will put a burden on both volunteers and staff and is one of the main reasons for our current emphasis on growth at the local, national and international levels.

Educating and informing Amnesty’s membership and the public about what we are doing will be more challenging. There will be more “gray areas” and more cases where we will need to say “We haven’t yet thought of that.”

Our mission will be more changeable than our mandate was in the past. We should expect it to evolve and develop between International Council Meetings as we respond to current events.