Helene Albrecht

In the course of the Vienna World Conference in 1993, the UN Committee on Economic, Social and Cultural Rights Committee² addressed the unsatisfactory role economic, social and cultural rights have played in political and societal awareness since their codification and complained that 'violations of civil and political rights continue to be treated as though they were far more serious and more patently intolerable than massive and direct denials of economic, social and cultural rights.'³ While outrages as a reaction to economic and social shortcomings in times of austerity increasingly form part of our daily lives, not to mention their relevance in the face of environmental disasters⁴ , public consciousness that these conditions are addressed in forms of legally binding obligations in international and regional treaties can be found wanting, if not lacking altogether. According to Leckie, it is still commonplace, that 'when people die of hunger or thirst, or when thousands of urban poor and rural dwellers are evicted 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'.⁵ However, the above mentioned firm legal basis provides an anchorage with potential for new and enhanced discussions as to the scope of socio, economic and cultural rights combined with an increasing recognition of available options for their overall enforcement at national levels.

This article seeks to analyse the current situation of socio-economic rights in a complex setting and therefore adopts a bipartite structure. In its first part it looks at the history and reasons for a division of rights since their codification in the International Bill of Rights ⁶ and their congruent differentiated implementation and adjudication methods. Focus lays on the comprehensive work the CESCR⁷ has performed while safeguarding the universality of all rights and their interdependencies. An illustration of the diversity and creativity in responses of legal scholars and practioners follows in regard to judicial enforcement of Economic, Social and Cultural Rights⁸ . Yet, this highly topical justiciability debate⁹ also suggests that socio-economic rights cannot only be accommodated in legal and administrative fields but rather demand responsibilities from further players.¹⁰ Consequently, the second part of the paper looks at shifts in attitudes towards human rights law which may involve profoundly altering societal behaviour. New actors such as corporates and financial institutes and movements such as feminism and regionalism contribute to a new role economic, social and cultural rights could, and indeed should, play in the enhancement and protection of our humane future. The multi-layer approach embraces a change which is already on the horizon and which has the potential to be fully developed in order to overcome the unsustainable position everybody's economic and social rights still obtain at present.

Part 1: The divided regime of civil and political rights and economic, social and cultural rights
1. The drafting process of the Universal Declaration of Human Rights¹¹

As is well-known, we owe the first international document universally embracing human rights to the atrocities of the Second World War.¹² However, origins and causes for the war as such cannot exclusively be reduced to the abysses of human nature: the economically disastrous situation after the First World War, particularly in Germany, virtually induced a second catastrophe. The British economist JM Keynes ¹³ depicts a clear analysis of the disastrous economic situation of Europe pre World War 1 accruing from incapacities to manage accumulated wealth and capital markets while facing growing populations and food shortages; the author being official representative and Chancellor of the Exchequer on the Supreme Economic Council resigned 'when it became evident that hope could no longer be entertained of substantial modification in the draft terms of peace.'¹⁴ Despite of this background, debates as to whether civil and political rights have to be warranted first in order to protect socio-economic well-being or the other way round accompanied the drafting process of the Universal Declaration of Human Rights.¹⁵

The arguments took three major points of view which can be traced into current discussions. The first saw the foundations of all rights in fundamental freedoms, such as the freedom of speech, without which no other rights could be developed ¹⁶ ; the view has in recent years most famously been expressed by Amartya Sen, reiterating that 'no substantial famine has ever occurred in a country that is independent, that has systematic multiparty elections, that has opposition parties to voice criticisms, and that permits newspapers to report freely and to question without extensive censorship the wisdom of current government policies.'¹⁷ A second view admitted that political rights come first; however, as civilisation had moved on to be accommodated in complex economic-social systems, 'the declaration of the rights of men must be extended to the economic and social fields.'¹⁸ A third view polarised in favour of socio-economic rights stating that 'the common man was only interested in freedom of speech (...) when he was protected against poverty'¹⁹ . This exactly reflected F.D. Roosevelt's famous speech in 1941 where he proclaimed the 'freedom from want' as one of the four freedoms and explained that '[we] have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence.'²⁰ Although in the drafting process of the UDHR the order and emphasis of both civil political rights and economic social rights were debated in such vivid terms, the participants were convinced that 'all articles in the declaration were equal regardless of their position'; for Marsink who meticulously describes the 'travaux preperatoires' surrounding the drafting process there was no 'lingering doubt about the drafters' belief that there were not two kinds of human rights(...)',rather the understanding that 'each alleged set constantly fed on each other and cannot be separated out.'' ²¹

However, the self-understanding and consciously taken unity of the UDHR as a non-binding instrument was not confirmed in the decision to draw up two successive covenants, the ICCPR and the ICESCR²² , which were intended to finally confer legally binding force to the UDHR's articles, constituting 'the bedrock of the international normative regime for human rights'.²³ It has to be recalled that although at the drafting stage of the Covenants tribute was paid to different ways of interpretation of all rights under different political regimes, the separation process was not meant to up- or downgrade a particular class of rights.²⁴

2. The Bill of Rights and the specific nature of socio-economic rights

In the 'Annotations on the Text of the Draft International Covenants on Human Rights'²⁵ the entire catalogue of later often-cited objections against the CESCR is explored: while 'civil and political rights were enforceable, or justiciable, or of an absolute character', economic, social and cultural rights 'were not or might not be';²⁶ while the former were rights which would protect from State interference, the latter urged the State to take positive actions; while civil and political rights were directly enforceable legal rights, economic, social and cultural rights had to be programmatic, meaning that they required long-term strategies and observance for their promotion. The distinctions manifest themselves in the wording of Article 2 of each of the Covenants and have subsequently led to different forms of implementation: while under the ICCPR State parties are obliged to 'respect and ensure' the rights and to 'provide effective remedies' in case of violations²⁷ , provisions under the ICESCR presume that the State parties 'take steps, individually and through international assistance and co-operation, especially economic and technical , to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure'.²⁸ However, some observations of the specific nature of socio-economic rights identify overlaps and commonalities between both Covenants and further emphasise their common ground and purpose.

Universality

The right of self-determination is the starting point of both Covenants. The article in itself unifies civil-political and socio, economic and cultural aspects when it provides that all peoples shall 'freely determine their political status and freely pursue their economic, social and cultural development.' ²⁹ In addition it also covers the category of 3^rdgeneration rights and in this capacity underlines the universality of all classes of rights, albeit with parallel implications for its judicial enforcement: for the Human Rights Council 'it seems certain that violations of Article 1 cannot be the subject of a complaint under the first Optional Protocol' of the ICCPR; the Council has rather ' taken the position that as a right belonging to peoples, it is not open to individuals to claim to be victims of the right to self-determination.'³⁰ However, it has the potential to become increasingly significant in the interplay of economic organisation and human right protection as expressed in the 'Declaration on the Establishment of a New International Economic Order' that 'no state may be subjected to economic, political or any other type of coercion to prevent the free and full exercise of this alienable right.'³¹ The document provides for the 'right of every country to adopt the economic and social system that it deems the most appropriate for its own development' which entails 'regulation and supervision of the activities of transnational corporations by taking measures in the interest of the national economies of the countries'.³²

For Scott, universality of classes of rights does not become clear in their interpretation in an 'abstract sphere' but rather in 'integrated consideration' and 'cooperative institutional experimentation' of different treaty bodies.'³³ He finds the interplay of particularity and universality of rights in different contexts: the prohibition of 'discrimination based on race, colour, and related grounds' is to be found in numerous treaties;³⁴ the same is true for protective children rights and the rights of women.³⁵ Thereby understanding of the particular of a right provision is enhanced in the light of the universal, and vice versa.

Interdependencies

The rights to housing, health, education and work are cornerstones of each government's policy and, if decided on by an unelected judiciary, raise important problems of the separation of powers; they bring about a radical nature of [the] new responsibilities for judges that would be created by this encroachment into the legislative sphere.'³⁶ However, these rights also dovetail with each other and with other fundamental rights: without a right to adequate housing, a right to health may be jeopardised; without a right to work neither the right to health nor to housing are sufficiently secured; the refusal of any of these rights may finally entail the loss of the right to life or the right to respect for family life. Under the European Convention the House of Lords held that a State's failure to make welfare provision may be breaching a civil political right; in other words a 'complaint about a wholly insufficient amount of pension and other social benefits may, in principle raise an issue under Article 3 of the Convention which prohibits inhuman or degrading treatment.'³⁷ As illustrated below, these overlaps have fuelled lawyers' imagination and led to creativity in decisions and analysis; they have otherwise re-enforced the criticism of the uncertain and open-ended nature of socio-economic rights.³⁸

The positive-negative rights argument

As has been mentioned above, fundamental rights are regarded to fall into different classes which distinguish them from each other. Human rights law often refers to 'three generations' rights putting civil and political, socio-economic and group rights in a successive order.³⁹ As mentioned above, the most common distinction separates positive from negative rights: those rights which impose the obligation on States not to interfere in the exercise of these rights by their citizens are called 'negative rights', whereas rights requiring States to take specific action for their realisation accordingly are 'positive rights'.⁴⁰

The aversion to positive rights derives on the one hand from belief in the powers of free and self-regulating markets⁴¹ and on the other hand from fears of opening floodgates for a redistribution of wealth if States' interference were to protect socio-economic rights.⁴² However, it might well be that costs are rather re-distributed than avoided. Until recently a country like Sweden having one of the strongest protections of socio-economic rights had very little litigation. Since the government has started to cut back social welfare expenditure, the 'courts have recently began to take a more assertive role in adjucating matters such as housing'.⁴³ It is obvious that 'the enforcement of civil and political rights also requires resource expenditure'; the right to a fair trial involves cost for legal aid and can in general be 'a financially demanding obligation.'⁴⁴ What is more, the right to housing can be seen as a negative right if the court is asked to avoid evictions whereas the right to life imposes a positive obligation if it is about life-saving medication.' ⁴⁵

The implementation of the ICESCR

As mentioned above the fundamental difference between the ICCPR and the ICESCR relates to their respective legal and programmatic status,⁴⁶ the latter of which must often be conceived in a complicated structural and political setting according to the context of specific substantive rights. Though both Covenants accommodate a submission procedure for State reports,⁴⁷ only civil and political rights are currently supported by an individual complaints procedure.⁴⁸ The monitoring systems of both Covenants have been revised several times and may raise concern as to their efficiency.⁴⁹ However, while the ICESCR is deemed to obtain the weaker part of both covenants as it is not represented by a treaty-based body⁵⁰ , increasing competence and activities of the CESCR have made a virtue of necessity: starting with the Limburg Principles⁵¹ , the CESCR created a considerable body of jurisprudence.⁵² Its progressive tenor becomes particularly apparent in its General Comments on particular provisions of the ICESCR which clearly define both the obligations for State Parties⁵³ and need for remedies at domestic courts⁵⁴ .

There are other comments addressing controversial and sensitive subjects such as the right to food, the right to water ⁵⁵ and the to date neglected class of cultural rights.⁵⁶ The Limburg Principles provide clear guidelines to the required extent of State Parties' commitment, the need for involvement of the broader public, the need for quantitative information and indicators and the wish to be supported by economic and technical co-operation; ⁵⁷ they 'have proven very useful to human rights advocates over the past of the norms of the IESCR within domestic legal spheres.' ⁵⁸ Nevertheless, in 1997 experts felt urged to refine and expand on these guidelines as social conditions since the adoption of the Limburg Principles had aggravated⁵⁹ . Precise figures point to alarming deficiencies in social rights protection worldwide, on grounds of which the experts' analysis contrasts economic and political developments since the end of the Cold War with concurrent achievements in the emergence of jurisprudence in this area.

While the decrease in State power related to an unqualified reliance on the functioning of the market is undeniable, accountability for social rights obligations have to be addressed.⁶⁰ Subsequently the focal point of the principles is the reinstatement of 'the three-pronged obligations of states under international law',⁶¹ namely 'the obligations to respect, to protect and to fulfil'⁶² and to connect these to 'obligations of conduct and of result' for States whereby the 'margin of discretion' and 'minimum core obligations' shall not refrain from taking these responsibilities.⁶³ In contrast, the latter have to be extended towards non-state entities and international organisations in situations of alien domination.⁶⁴ Access to remedies should be facilitated by new standards.⁶⁵ While being sensitive to States' political configuration and individuality,⁶⁶ the CESCR reserves for itself 'the ultimate determination as to whether all appropriate measures have been taken' and requests the 'provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justiciable.' ⁶⁷ However, in General Comment No. 9 from 1998,⁶⁸ profound difficulties and conflicts are addressed which impact 'the duty to give effect to the Covenant in the domestic order.'⁶⁹ Facing problems such as complete failure to provide anything, transforming the Covenant without invoking its specific terms,⁷⁰ and distribution concerns relating to the separation of powers⁷¹ , the CESCR is forced to take recourse to principles of international law ⁷² as 'the impact of the Covenant on the reasoning or outcome of cases is very limited.'⁷³

As a gap-filling provider for case law the ICESCR has recently adopted its long expected own Individual Complaints Procedure.⁷⁴ While the Protocol is praised by its creators and administrators⁷⁵ , adversaries downplay its value by criticising the follow-up of its equivalent to the ICCPR as an 'ill-considered effort to mimic the structures of the ICCPR'.⁷⁶ The need for a complaint procedure is evident: without case-law, rights enforcement does not take any shape, in particular if judicial enforcement is not guaranteed at the domestic level.⁷⁷

While McBeth remarks that 'there is sufficient evidence of State practice and an apparent feeling of compulsion among States to provide the basic needs that comprise the right to a decent standard of living, freedom from hunger, the right to health and the right to education for those rights to be considered customary international law'⁷⁸ , the question remains as to the role domestic courts play in the enforcement of these rights. Worries about a downgrading of socio-economic rights in economically harsh times have recently inspired creativity and flexibility within the courts.⁷⁹ In fact, as in the example of Britain, they may even draw from traditional approaches where a case dating back to the 18^th century applies to contemporary situations in immigration law.⁸⁰

3. Justiciability of socio-economic rights

One of the reasons ESCR are deemed to be unenforceable is that they are already dealt with in many legal instruments and regulations.⁸¹ Nevertheless, as in the case of China, a recent newcomer to the ICESCR, the representation of the rights in legislation means neither that an individual has access to justice nor that domestic courts in fact can decide in accordance with legislative provisions.⁸² Although rights enforcement depends on countries' resources, demagogical structure and cultural values, the CESCR has launched an urgent appeal to report cases involving socio-economic rights.⁸³ Simultaneously, scholars and legal practitioners are developing an appealing number of promising models, techniques and litigation scenarios.

Wiles⁸⁴ confirms the need for legal enforceability of socio-economic rights especially where States are reluctant to entrench or otherwise safeguard them due to external pressures.⁸⁵ However, as this breaks new ground she suggests a number of accompanying measures to ensure effectiveness. The establishment of a national monitoring body, for instance an ombudsman or a commission concerned with reports and assessment studies, could help to concretise benchmarks and thresholds for the rights' scope, whereby this body again could connect to similar bodies on an international level; furthermore, tribunals specialised in socio-economic matters are desirable which would connect to administrative systems and adjudicate claims brought in form of class actions.⁸⁶

Coordination between courts and public administration is also envisaged by Harvey and Rooney who are convinced that 'the enhanced constitutionalisation and adjudication of socio-economic rights is a marked trend'.⁸⁷ The authors directly address a major concern, namely resource allocation, and counter with a detailed budget analysis which comprises a cost-benefit analysis, cost-effectiveness analysis and multi-criteria analysis. Thereby 'cost benefit analysis identifies the net value of an expenditure programme by adding its anticipated benefits and subtracting its expected cost, cost-effectiveness analysis concentrates on the extent to which the funding options fulfil specific identified objectives, and multi-criteria analysis accommodates, as opposed to the former, qualitative and quantitative data.'⁸⁸ These economic techniques would provide valuable tools for judges and politicians to calculate public expenditure needed for the implementation of human rights. Chances of success can be better derived from processes of gender mainstreaming as it has been introduced throughout Europe in similar ways.⁸⁹

In contrast, Olds reports on national achievements of the right to housing throughout Europe.⁹⁰ Triggered by pressure groups and a precedent case adjudicated by the European Social Charter,⁹¹ France has enacted the "Droit au lodgement opposable", in short DALO in 2007. The Act's title roughly translates as 'the inalienable right to housing that a court cannot deny you.'⁹² It works in two stages: the first stage from 2008-2012 entitles all homeless and inadequately living families to take their cases to court; the second period from 2012 onwards permits to bring claims against abnormally long waiting lists.⁹³ The legislation prevents landlords from executing evictions during winter months and forces the Government to increase the number of available housing units and to simultaneously equip social services with knowledge as to how to apply the law.⁹⁴ In the case of Namizata Fofana, a legal immigrant and mother of two, it was on the basis of the Act that the court ruled that 'families must not merely have a place to stay for the night but an adequate home.' This prevented the family from losing shelter after a grace period of 21 months.⁹⁵ Cooperation between the government and the courts has worked well in the Netherlands since the beginning of the 20th century where the Housing Allowance Act provides for financial assistance and the Rent Tribunal Act 'empowers citizens to challenge unreasonable rents.'⁹⁶ In this context it is remarkable that 30% of the country's housing is social housing which is also occupied by middle class families and does not entail any stigma.

Ray ⁹⁷ describes the development of a new remedy emanating from the South African Constitutional Court's experience with socio-economic rights. In the words of the Constitutional Court' 'the purpose of litigation concerning the positive obligations imposed by social and economic rights should be to hold the democratic arms of government to account.'⁹⁸ Engagement as a remedy could provide relief by obliging affected parties to negotiate their case and to literally engage with each other. It has been employed in eviction cases and involves inter alia broad assessment of city planning, residents' consultation and cost analysis, thereby directly meeting the contact point between juridical decisions and policy making.

Nolan refers to 'the state's obligation to ensure that third party non-state actors do not interfere with the enjoyment of ESC by right holders.'⁹⁹ Comparing the situation in Europe with the African and American Human Rights systems, the author regrets that 'most domestic and regional human rights systems do not allow for the direct application or enforcement of Economic and Social Rights norms against Non State Actors'.¹⁰⁰ However, regional bodies and advocates have found ways out of restrictions by using a number of techniques. In International Commission of Jurists v Portugal ¹⁰¹ the state was accused of violating its obligation under the ESC by failing 'to ensure the effective exercise of the right of children and young persons to protection'¹⁰² when family businesses continuously employed children under the age of 15 contrary to Article 7(1) of the ESC.¹⁰³ In Lopez Ostra v Spain¹⁰⁴ air pollution caused by a privately owned waste-treatment caused serious health problems. The European Court on Human Rights resolved the case of a socio-economic right violation through reliance on Article 3 and Article 8 of the European Convention of Human Rights. ¹⁰⁵ Nolan comments that 'the willingness and capacity of regional bodies to employ civil and political rights standards to indirectly protect ESC, and vice versa, demonstrates the reality that a considerable number of rights including the right to life, the right to equality, trade union rights and property rights, do not conform with any supposed clear-cut categories of ESC and civil and political rights.'¹⁰⁶

Therefore, it can be said that justiciability of socio-economic rights enjoys the dynamics of an upwards trend; even more pressure on and responses in regional systems and domestic courts is to be expected. However, this is not the only stage where economic, social and cultural rights have to be respected, protected, and fulfilled. It is rather the world at large which has to be dedicated further attention. As Leckie formulates, '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.'¹⁰⁷

Part 2: Impacts on economic, social and cultural rights beyond the legal world
1. Addressing the interplay of economic strategies and human rights realisation

Traditionally, human rights have been seen as entitlements the individual claims against arbitrary interventions or omissions by States.¹⁰⁸ However, during the last decade, States' political powers have significantly decreased in favour of a growing influence of non-state actors in the course of privatisation and globalisation.¹⁰⁹ As a result, dynamic forces of multi-national enterprises set a heavy-weight counterpart to State governance and accordingly must bear responsibilities for violations in compliance with human rights obligations, in other words accountability for harmful impacts or rights violations on grounds of economic and commercial activities. According to Koen de Feyter 'mechanism need to be created to ensure the accountability of other actors for human rights' whereby 'these actors include influential economic powers whose actions drive people into poverty.'¹¹⁰ As the mutual dependence of human rights protection and meaningful economic activity has long been recognised, this integrating view on non-state actors is self-explaining and obvious.¹¹¹ One of those non-state actors is the World Bank.

Corporate responsibilities

Although addressed in major summits dedicated to globally-increased social responsibility¹¹² , corporate responsibility in relation to human rights is still premature as it tends to find itself in a contemporary vacuum resulting from transitional shifts from States' to private actors' competences. According to Clapham it is even related to the fact that 'governments were using Corporate Social Responsibility as a substitute for their own failure to address the social consequences of globalisation'¹¹³ . However, responsible corporate governance takes the exclusive burden to bear the costs for positive rights enforcement away from States and increases the radius in which human rights have to be safeguarded and enforced and consequently embrace every single member of human societies. Clapham therefore suggests 'multiple fora in which to hold the various actors accountable - the national courts (for criminal and civil liability of the natural and legal persons), an international criminal court (for individual criminal responsibility), and the relevant international human rights treaty monitoring bodies and courts (to hold the state accountable for violations of its treaty obligations).'¹¹⁴ The pursuance of a human rights policy may directly pay out for a corporate through the avoidance of strikes, protests and boycotts and through State measures such as 'export credit guarantees for companies to potential human rights impacts'¹¹⁵ . However, instead of the operation of the ICESCR, alternative implementation mechanisms with varying degrees of reach and success are employed. The Organisation for Economic Cooperation and Development Guidelines,¹¹⁶ which were set up in the early 70s and since then have been revised several times, provide standards of conduct and good practice to multi-national enterprises which also clearly cover categories of economic, social and cultural rights. The guidelines are boosted with a complaint mechanism which functions between National Contact Points (NCPs) and the Committee on International Investment and Multinational Enterprise (CIME) and which, although not being a legally enforceable procedure, could play a significant part in the exploration of public litigation.¹¹⁷ A further strength is an inherent appeal to multinationals to 'encourage others with which it is in contact to respect the Guidelines.'¹¹⁸ These requirements necessarily unify domestic legislation with international customary law, though still leaving gaps and negligence in the protection of individuals' rights. Nonetheless, the journalist Naomi Klein describes problems with local authorities when they turn 'a blind eye on human rights violations for the sake of foreign investment', in particular in the Philippines 'where export processing zones (EPZs) exist within kind of a legal and economic set of brackets, apart from the rest of their countries'.¹¹⁹

The 'Tripartite Declaration of Principles concerning Multinational Enterprises',¹²⁰ likewise considering multinational enterprises as entities operating on the international and regional stages, are in addition to multinationals directed towards governments, workers' and employers' organisations and clearly refer to human rights.¹²¹ Drawing from the ILO Declaration on Fundamental Principles and Rights at Work,¹²² they summarise expectations on companies to act in full compliance with human rights obligations; however, their success will depend on the expertise of legal professionals to pass on their powers to people in need of their realisation.¹²³

Finally, the UN Global Compact (2000)¹²⁴ provides ten principles, two of which impose respect for protection and fulfilment of human rights and the avoidance of complicity in human rights abuses. They are a valuable source of reference for NGOs and their effect has been acknowledged as recognisably improving the human rights situation.¹²⁵ Accountability gaps accrue particularly in connection with certain branches; they also re-open the operating field for UN bodies. However, social, economic and cultural rights in their appearance under the Bill of Rights are neither expressly referred to in any of these implementation tools nor do they obtain a normative role in a recent document on youth unemployment which has been issued by the International Labour Organisation.¹²⁶ Besides the provision of vast numbers of relevant and comprehensive statistics the report rather directly points to cost calculations which urge the need for action against youth unemployment, stating that 'governments are rightly concerned with both the economic costs of joblessness and discouragement as well as the possible social impacts, manifested by increased crime, mental health problems, violence, drug taking and social exclusion.'¹²⁷ In this context the lack of reference to any breaches of ICESCR speaks volumes in regard to the use of the Treaty as tool for legal enforcement.

International Financial Institutions and their Human Rights commitment

International Financial Institutions (IFI) such as the World Bank and the International Monetary Fund, albeit being separate legal personalities, cannot become parties to treaties themselves; failures to observe treaty obligations, however, would render their constituent parts, in other words Member States, liable.¹²⁸ The extent of a required commitment to human rights on their behalf is disputed though: for some, the institutions have only to respect them and to avoid violations; for others they are even obliged to promote a favourable human rights development.¹²⁹ Under the UN Charter, all financial institutions are deemed to obtain a positive human rights mandate as they represent signing States' commitment 'to employ international machinery for the promotion of the economic and social advancement of all peoples.'¹³⁰ While socio-economic progress is clearly pursued by the World Bank, involvement in any political conflict is expressly prohibited in its Articles of Agreement.¹³¹ In contrast, the International Monetary Institutions may even aggravate socio-economic rights situations and impact on social rights to health, housing and work by imposing structural adjustment on countries with the purpose to eventually improve countries' financial situations.¹³² Agusti-Panareda has figured a way out of the dilemma: firstly he questions the absolute nature of human rights as such and secondly, he enriches them with the virtues of cultural diversity and context-based equivalents the beneficiaries of which should be approached in dialogue in order to identify their real needs, thereby 'ideally engaging the widest range of governmental and non-governmental actors and institutions.'¹³³ He remarks that 'the bank is, after all, a financial institution, which in fostering development and alleviating poverty, should not aim to impose human rights, but rather finance and promote their local definition and consecution through an empowering venture that could overcome the pitfalls of a missionary promotion of rights.' ¹³⁴

2. A feminist viewpoint: thinking universally by nature

The feminist approach is adequately reflected in the activities of 'Social Watch', an international network which directly links social development to gender equity.¹³⁵ In general, feminist thinking has undergone several stages of development, reaching from the particular women rights protection in the 70s to a complete rejection of the latter as taken through a feminist lens.¹³⁶ Particularities of feminist thinking are best characterised in an 'Ethic of Care' which embraces women's naturally different understanding of rights protection. This Ethic of Care has inter alia been represented and explored by Carol Gilligan, who argues that 'there are two moral codes, a feminine one based on caring and the maintenance of relationships and networks, the Ethic of Care, and a masculine one based on a more abstract systemisation of rights and rules, the Ethic of Justice.'¹³⁷ A consequent vision is provided by Sarah Fredman who rather labels rights as duties and responsibilities which should not be impeded by any barriers to a profound realisation in our society.¹³⁸ The author develops her argumentation around a re-conception of positive freedoms which redefines and determines the fulfilment of positive duties both leading to a 'substantive conception of equality'. In her own interpretation she addresses and reconfirms the interdependence of positive and negative rights, arguing that 'if freedom is a fundamental value, freedom for some must be freedom for all.' Therefore, 'freedom as non-interference makes it inevitable that some will be in a better position to exercise their freedom than others.' Consequently 'positive freedom places a duty on the State to pay particular attention to those who are not in a position to exercise their rights to the full, even if this entails supplying more resources or providing greater facilitation for these individuals than for others not in the same category.'¹³⁹

3. Regional Systems

This section shall look at three geographically distant areas in an attempt to sketch some of their most interesting socio-economic rights developments; they illustrate the range and diversity of different approaches and attitudes.

South Africa

After the break-up of the Apartheid regime, South Africa has arguably managed to create one of the most progressive and influential constitutions, thereby rejecting a directive principles approach to socio-economic rights in favour of their full constitutional recognition.¹⁴⁰ Cases such as Grootboom¹⁴¹ and Treatment Action Campaign¹⁴² have fostered the constitutionality of socio-economic rights and raised the expectations of many rights scholars. Nonetheless, in 2010, Lehman draws a terrifying picture of the countries true situation. According to the author, 'life, for the majority of South Africans, remains appallingly hard, despite the socio-economic promises of the Constitution.'¹⁴³ Scholars blame the Constitutional Court for being too deferential and cautious as the Court has taken a reasonableness approach instead of a minimum core approach, the profile of the latter being by no means fully clear according to the Committee's reasoning.¹⁴⁴ The discussion as depicted in Lehman's paper exposes the Court as defendant of a judicial position which eradicates scholars' hope for a crossing of political frontiers. For Lehman the solution consists in a 'more robust approach'.¹⁴⁵ The rationale of this approach is based on the presumption that executives are excused for lack of resources but that in fact there are additional resources available in existing pools. Litigation would have to identify these sources whereby the court would have to dismiss its 'self-imposed constraints' and exemplarily 'scrutinise the reasonableness of budget allocations.'¹⁴⁶ A new form of relationship and cooperation between two limbs of the constitution would have to be established as 'there is no suggestion in the Constitution that the maintenance of democracy requires that Rand 587 million is spent on the acquisition of an airplane for presidential use, or that Rand 50 billion is spent on the acquisition of arms.' In her views, 'as long as the socio-economic needs of individuals remain unfulfilled, expenditures such as these require explanation.'¹⁴⁷

Europe

In his book 'The European Social Charter: A social constitution for Europe',¹⁴⁸ Schutterer acknowledges the influence the ESC has taken on the shape of the European Community from its early days in Rome; he observes its increasing significance since the establishment of the Collective Complaint Procedure¹⁴⁹ and frankly propagates the idea of an accession of the EU to the ESC.¹⁵⁰ The author acknowledges 'remarkable achievements in European social legislation, particularly in the fields of equal treatment between women and men and protection from discrimination on a number of grounds, but also in the adoption of measures for the approximation of the national laws of the Member States'. These have 'as their objective the establishment and functioning of the internal market,' connecting to the fact that 'most of the guarantees of the ESC may only be implemented within the Union by the adoption of directives.' Through this reduction in goals, competence and legislative procedures may lead to the imposition of 'only minimum requirements on the Member States what they are a product of negotiation often settling on the lowest common denominator.'¹⁵¹ However, scholars observe a beneficial amalgamation of jurisprudence between the European Court Human Rights and the European Court of Justice, whereupon the latter often relies on fundamental rights such as the right to family life to back-up decisions in favour of social rights guarantees which were otherwise not enforceable.¹⁵² In contrast this promising development did not help to avoid a series of serious and violent breaches against Roma and Gypsy minorities¹⁵³ and many countries are still struggling in their discussions of minimal wages and social benefits. With the ongoing euro zone crisis that heavily affects European countries, if not global prosperity, chances of success for the amelioration of the global social climate have been distorted dramatically.

The US

In its annual report of 2010, the Center for Economic and Social Rights shows 'that despite being the world's wealthiest economy, the US has one of the poorest records of economic and social rights achievement of all high-income countries',¹⁵⁴ notwithstanding its dominant role in drafting the UHDR and therefore historically-founded commitment to these rights. The international human rights community has always been aware of the particular scepticism of American scholars towards socio-economic rights.¹⁵⁵ More surprising is an appraisal by one of their strongest opponents¹⁵⁶ , Cass Sunstein, when he acknowledges that F.D. Roosevelt's Second Bill of Rights 'attempts to protect both opportunity and security, by creating rights to employment, adequate food and clothing, decent shelter, education, recreation, and medical care.'¹⁵⁷ Sunstein grapples in his book meticulously with American's history in order to analyse its reluctance against socio-economic rights protection as well as the country's need for their realisation. He acknowledges successes of the South African experience¹⁵⁸ and European case law¹⁵⁹ and expects 'a democratic attention to important interests that might otherwise be neglected in ordinary debate' with 'large implications for how we think about citizenship, democracy, and minimal social and economic needs.'¹⁶⁰ These controversial and contrasting pieces of a jigsaw puzzle leave us for the time being with much of a mystery as to the country's true identity and future social direction.

4. Conclusion

This article sought to illustrate that socio-economic and cultural rights are no longer in the shadow of their civil and political counterparts; they are right in the center of current human rights debates. The call to 'inject new life into multilateralism and move to a new economic paradigm for the 21st century'¹⁶¹ is made on behalf of UN advocates, civil organisations and legal practioners in explicit and unequivocal wording; however, signs of genuine endeavour, progress and success of their comprehensive work should be emphasised instead of reiterating debates of principles. There is much need for clarification as John Tobin ascertains when he formulates a comprehensive pleads to non-judicial actors - academics, NGOs, treaty monitoring bodies, special rapporteurs, and States - to better represent human rights obligations. In his words 'legal interpretation is not simply the process of attributing a meaning to the text of a treaty but is ultimately an act of persuasion; an attempt to persuade the relevant interpretive community that a particular interpretation is the most appropriate meaning to adopt.'¹⁶²

Citizens should inform themselves about the extent to which their States are legally bound and fulfilling their socio-economic rights in an international and regional context;¹⁶³ they must also be given sophisticated and qualified reasons for breaches, delays and incapacity as regards their States' obligations. Though much information is readily accessible but non-transparent for the public at large, pinpointing and clarifying backgrounds is essential and opens new working areas for legal practioners and scholars likewise. Putting the mere and real presence of socio-economic rights first could help reshaping our societal needs setting new priorities; however, the complex context of socio-economic rights calls for concentrated commitment.

As a result, citizens should get involved in a full-fledged participation. The programmatic nature of socio-economic rights will constitute their strength rather than their weakness in this process and connect well to contemporary forward-looking legal thinking.¹⁶⁴ As this examination points out it is not only within the scope of State parties' responsibilities but within the duties and powers of all citizens that social, economic and cultural rights can be respected, protected and fulfilled, be it from a leading position or from the position of ordinary citizens both having the right to claim the very fundamental conditions for a human life in dignity.¹⁶⁵