UN is divided over Complaints procedure - HUMAN RIGHTS COUNCIL INC NZ

The UN is Divided over a Complaints Procedure for Social Injustices

By Anthony Ravlich
Chairperson, Human Rights Council Inc.

At the United Nations New Zealand maintained its distance from the American camp which is opposed to a complaints procedure (Optional Protocol) for those suffering serious social injustices i.e. violations of economic, social and cultural rights.

At least 76 countries attended the first day of the second session working group which met in Geneva between the 10th to 21st January 2005. Its two year mandate by the UN Human Rights Commission was "to consider options regarding the elaboration of an Optional Protocol (OP) to the International Covenant on Economic, Social and Cultural Rights (ICESCR)'. It is expected that a final decision on whether to draft the OP will be made next year.

The OP for the ICESCR could prove a challenge to the global dominance of the neo-liberal ideology where globalisation, privatisation and the structural adjustment programs of the World Bank and IMF can violate economic, social and cultural rights (ESC rights). The latter define social justice in human rights terms i.e. the rights to employment, fair wages, health, housing, education and an adequate standard of living. It is envisaged that complaints regarding such violations could be made to the UN Committee on Economic, Social and Cultural Rights once domestic remedies have been exhausted. The OP to the International Covenant on Civil and Political Rights entered into force in 1976 and was acceded to by New Zealand in 1989.

The main opposition to the OP came from a number of liberal democracies - the United States, Australia, United Kingdom, Canada, Japan, India while the most supportive were the poorer regions of South America and Africa. The US marginalise ESC rights regarding them of lesser status than civil and political rights (CP rights) while many poor counties considered CP rights and ESC rights as being of equal status, which has always been the position of the UN at least in terms of rhetoric (Vienna Declaration 1993, Limberg Principles 1987).

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The New Zealand Labour Government states it is committed to the equal status of both sets of rights. This seeming ideological split between the two camps was reminiscent of, although not nearly as extreme, the bi-polar world of the Cold War when the west championed CP rights (which favor the middle class, professional sector) and the eastern communist countries promoted ESC rights (which favor the working class and the most disadvantaged). However the growing support for ESC rights poses a threat to western ideological dominance as these human rights provide people with a belief system, with international credibility, which will enable them to fight for social justice in a world where the gap between rich and poor both within and between countries is growing.
Jillian Dempster, the Human Rights person at New Zealand's Permanent Mission at the United Nations, said that they "firmly believe' in the equal status of both sets of rights but did not wish to be seen to align itself with either camp so said little at the working group. She states: "We didn't have much to say because we didn't hear anything much new at this year's working group - we asked more questions last year and its still being debated by domestic agencies who are responsible for implementation. We were in listening mode as our position is still not firm in one direction or the other - to assert a firm position could have been misconstrued that we had made up our minds and could be counted in one camp or the other, either for or against".

Phil Goff, Minister of Foreign Affairs and Trade, on 18th January 2005, stated that New Zealand takes a cautious approach to treaties because even when they are "optional' New Zealand always tries to become a party to all international human rights treaties. He states: "Given the complex nature of the issues concerned, and the clear lack of international consensus on the way forward we consider that further discussion is warranted before any decision is taken to begin negotiations on a new instrument (consequently) New Zealand opposes immediate drafting of an OP".

At last years working group meeting New Zealand was described as "light' opposition by Maria Graterol, Programme Officer, of International Women's Rights Action Watch Asia Pacific - against immediate drafting of an OP but happy to continue with discussions.

The United States, which is the only industrialised country not to have ratified the UN Covenant on Economic, Social and Cultural Rights under international law made its ideological position clear at the UN Commission on Human Rights discussion of the OP in March, 2004. The US sees ESC rights only as aspirations to be attained progressively while CP rights are immediate. The US representative stated: "Economic, social and cultural rights does, however, not fall under international decision making. While all rights are universal, there is a clear distinction between civil and political rights and economic, social and cultural rights. Economic, social and cultural rights must be progressively realised while civil and political rights are immediate".

This ideological viewpoint is at variance with the position of the UN and many countries which consider both sets of rights to be of equal status and with both having progressive and immediate elements (UN Committee on Economic, Social and Cultural Rights, General Comment 3). In my opinion CP rights, by itself, assumes the existence of adequate wealth and power to make use of these freedoms. As this assumption is often not born out in reality the most disadvantaged often have minimal CP rights. The point was made by former US president, Franklin Roosevelt, that "true freedom' was only possible with ESC rights and in 1944, following the depression, he proposed a second bill of rights for America to include ESC rights. However the US changed its position after the war and Roosevelt's death.

Perhaps the most concerning development at the working group was the trend reported by the NGO Coalition to open discussions of an a la carte approach ( a piece meal approach to ESC rights where not all the rights in the Covenant or all levels of obligations (respect, protect, fulfil) would be included in the OP). This, in my opinion, allows the possibility of elite interests being favoured over the interests of the most disadvantaged who the UN has constantly maintained are the central concern of ESC rights. By comparison the comprehensive approach includes all human rights and layers of obligations and ensures the equal status of ESC rights and CP rights. The NGO Coalition states that all the experts in the first two days of the working group supported the comprehensive approach.

The a la carte approach received particular support from the EuropeanUnion countries who point to its operation in the Council of Europe Charter on Social Rights. According to the NGO Coalition this selective, a la carte, approach is being suggested by a number of delegations as a "means of finding consensus' between the opposing camps.

An example of an a la carte approach is given by Bernard Robertson in his 1997 study for the New Zealand Business Round Table entitled Economic, Social and Cultural Rights - A Reappraisal (see internet). In my view Robertson's approach is an extreme example of how ESC rights can be manipulated to serve elite interests rather than those of the most disadvantaged whose freedom from oppression and exploitation is the spirit of the covenant. That government has the duties to respect, protect and fulfil economic, social and cultural rights has received widespread acceptance in the international human rights arena. However Robertson advocates the removal of the duty of government to fulfil which would ensure employment, fair wages, health etc.
He states that "as the rights enumerated in the ICESCR are examined, that many, as conventionally interpreted (i.e. including the duty to fulfil), can only be achieved at the expense of restricting corresponding individual liberties (CP rights) such as "the compulsory transfer of resources from one individual to another'. However Robertson agrees with the duty to respect and protect (e.g. non-discrimination in employment etc) because these are applied fairly whereas the duty to fulfil requires targeting certain groups e.g. the most disadvantaged. He considers that government should respect individual choice therefore he views the minimum wage rates as discouraging individuals and business from making work available.

Likewise he considers that the government should refrain from interfering in working relations irrespective of any considerable disparity in the power relationship. Furthermore he maintains that "¡K the right to continuous improvement in living conditions presumably means that the government should not take any decision deliberately aimed at reducing the living conditions of any group. This would entail not levying discriminatory taxation on any group even if the aim were redistributional, since the rich are as entitled to this right as anyone else". This approach seems only likely to provide certain protections for those who already have their ESC rights and may make the situation of the most disadvantaged much worse.

The NGO Coalition also reported that the majority of delegations agreed that economic, social and cultural rights had core obligations which deals with extreme situations such as starvation, poor heath care, homelessness etc. So it is possible that Robertson's a la carte approach could be softened by requiring the fulfilment of core obligations as suggested by Switzerland. This would still enable governments to cutback welfare for a considerable proportion of the most disadvantaged. The anti-welfare rhetoric of such leaders as US President Bush and Don Brash, leader of New Zealand's major opposition party the National Party show this is certainly possible. If such an a la carte approach is adopted it would likely lend legitimacy to such policies.

Although the interdependence of human rights was frequently stated at the working group there appears to have been little discussion on CP rights. This, it seems, reflects the difficulty of dealing with two covenants. In the early 1950s one covenant and one OP was envisaged for the Universal Declaration of Human Rights but because of the liberal west's aversion to economic, social and cultural rights two covenants were created.

But CP rights are certainly, in my view, relevant in the working group discussions because the War on Terror has resulted in the liberal democratic government's curbing individual freedoms and empowering police and security forces. It is needed to know what will the effects of this be on the most disadvantaged e.g. in terms of their advocate's ability to influence, protest etc. Also will a more patriotic mainstream media increase their exclusion of the views of the poor and alternative ideologies? Are the most disadvantaged to live in a virtual social prison with little appeal to the people?

Another matter which in my opinion needs to be addressed is the matter of human rights education. Those suffering serious social injustices will not complain if they do not know about the Optional Protocol and economic, social and cultural rights. Governments have a legal duty under the UN Charter to promote and encourage respect for human rights and fundamental freedoms. Late in 2004 the New Zealand Human Rights Commission in its interim status report states:
"Among the general population there is limited knowledge and understanding of human rights, their relevance to every day life¡K". Furthermore section 5(a) of the Human Rights Act 1993 requires that the commission educate New Zealanders in economic, social and cultural rights but the commission readily admits that until the commencement of the New Zealand Plan of Action for Human Rights about two years ago the government refused to fund this education. In an attempt to educate people the UN has initiated the development of National Plans of Action for Human Rights.

But so far not many countries have done so (15 countries by 2004, UN Handbook on National Human Rights Plans of Action) and a number have not included ESC rights and even then effective social control by the country concerned can ensure their people remain ignorant. In New Zealand the publicity regarding the action plan, which includes ESC rights, has been very limited and to my knowledge ESC rights have not gained media attention except from our NGO (for further information on the social control of human rights education see my article on the internet entitled Social Justice is Gaining Momentum). This demonstrates that a top-down approach to education may not be enough and a bottom-up approach is also needed by credible, independent NGOs. However those which are truly bottom-up often get little or no funding. In my view the working group needs to discuss ways of assisting these NGOs such as our own, the Human Rights Council Inc.
For example, where the NGO could not afford it, the UN could pay for human rights experts to give talks in the country concerned at the invitation of the NGO. If people were sufficiently educated in these economic, social and cultural rights they could demand that their political parties are transparent with respect to human rights. In New Zealand political parties rarely, if ever, articulate social justice in human rights terms to the general public. Also an educated public would guard against any a la carte approach which represents a distortion of the spirit of the ICESCR. ESC rights in law and enforced is the best way of eliminating violations leaving the OP to be used as a last resort.