Tài liệu Economic, Social and Cultural Rights - Handbook for National Human Rights Institutions docx

UNITED NATIONS New York and Geneva, 2005 Professional Training Series No. 12 Human Rights Economic, Social and Cultural Rights Handbook for National Human Rights Institutions N OTE The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. Material contained in this publication may be freely quoted or reprinted, provided credit is given and a copy of the publication containing the reprinted material is sent to the Office of the United Nations High Commissioner for Human Rights, Palais des Nations, 8-14 avenue de la Paix, CH-1211 Geneva 10, Switzerland. HR/P/PT/12 UNITED NATIONS PUBLICATION Sales No. E.04.XIV.8 ISBN 92-1-154163-8 ISSN 1020-1688 Cover photographs: United Nations, Department of Public Information Michael Mogensen / Still Pictures Fiji Human Rights Commission C ONTENTS Page INTRODUCTION vii I. THE NATURE OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1 A. THE NORMATIVE FRAMEWORK 3 Human rights as a single body of law 3 International Covenant on Economic, Social and Cultural Rights 5 General comments 6 Other sources of guidance on State obligations relating to economic, social and cultural rights 7 B. STATE OBLIGATIONS 9 “undertakes to take steps by all appropriate means, including particularly the adoption of legislative measures” 9 “with a view to achieving progressively the full realization of the rights” 10 “to the maximum of its available resources” 12 “without discrimination” 13 “through international assistance and cooperation” 14 The obligation to respect 15 The obligation to protect 17 The obligation to fulfil 18 C. SOME CENTRAL CONCEPTS 22 Minimum core obligations 22 Justiciability and the domestic application of economic, social and cultural rights 25 Avoiding retrogressive measures 28 II. THE NATURE OF NATIONAL HUMAN RIGHTS INSTITUTIONS 29 A. IMPORTANCE OF A BROAD AND CLEARLY DEFINED MANDATE BASED ON INTERNATIONAL INSTRUMENTS 31 The Paris Principles 31 B. ELEMENTS FOR EFFECTIVE IMPLEMENTATION OF A MANDATE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 34 Interpreting the mandate 34 Independence 36 Functions 36 Powers 36 Accessibility 37 Cooperation 38 Operational efficiency and capacity 38 Accountability 39 iii Page C. CHALLENGES FOR NATIONAL HUMAN RIGHTS INSITUTIONS IN ADDRESSING ECONOMIC, SOCIAL AND CULTURAL RIGHTS 40 Internal factors 40 External factors 40 III. THE ROLE OF NATIONAL HUMAN RIGHTS INSTITUTIONS IN PROTECTING AND PROMOTING ECONOMIC, SOCIAL AND CULTURAL 43 A. DEALING WITH VIOLATIONS OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS 45 Why deal with violations of economic, social and cultural rights? 45 Investigative principles 47 A complaints-based framework for dealing with violations of economic, social and cultural rights 48 The steps in investigating individual violations 49 Investigating systemic violations 54 B. MONITORING ECONOMIC, SOCIAL AND CULTURAL RIGHTS 57 Why monitor economic, social and cultural rights? 57 Principles 58 A framework for monitoring 60 C. PROMOTING ECONOMIC, SOCIAL AND CULTURAL RIGHTS 74 Why promote economic, social and cultural rights? 74 Principles 75 A framework for promotion 76 Promoting State recognition of obligations relating to economic, social and cultural rights 83 Promoting judicial recognition of the justiciability of economic, social and cultural rights 86 Promoting awareness and empowerment through public education 88 Promoting observance of economic, social and cultural rights by non-State actors 89 Training small groups in economic, social and cultural rights 89 CONCLUSION 93 BOXES Economic, Social and Cultural Rights Standards - 1. The indivisibility and interdependence of all rights 4 2. The main human rights bodies 7 3. Basic postulates proposed by Danilo Türk 8 4. General comments and forced evictions 16 5. Disaggregating State obligations—housing rights 21 iv Page 6. International Covenant on Economic, Social and Cultural Rights - reporting guidelines 68-69 Economic, Social and Cultural Rights in Practice - 01. Affordable measures to promote and protect economic, social and cultural rights 24 02. The courts and economic, social and cultural rights in South Africa: the national human rights institution as a judicial monitor 27 03. Mandate of the Fiji Human Rights Commission 32 04. Mandate of the National Human Rights Commission of India 35 05. Uganda Human Rights Commission 37 06. Investigative monitoring in the Philippines 47 07. Ontario Human Rights Commission, Canada 54 08. Australian Human Rights and Equal Opportunity Commission 56 09. South African Human Rights Commission 59 10. Quantitative health indicators 62 11. Promoting the independence and indivisibility of rights 75 12. Setting goals and formulating objectives 79 13. The National Human Rights Commission of India promotes health rights 84 14. Promoting the integration of economic, social and cultural rights into the educational curriculum 86 15. Justiciability of economic, social and cultural rights 87 ANNEXES 97 Key international instruments 99 1. International Covenant on Economic, Social and Cultural Rights 99 2. Principles relating to the status of national institutions 109 3. General Comment No. 10 of the Committee on Economic, Social and Cultural Rights: The role of national human rights institutions in the protection of economic, social and cultural rights 113 4. General Comment No. 3 of the Committee on Economic, Social and Cultural Rights: The nature of States parties’ obligations 115 5. The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights 117 6. The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights 125 Selected bibliography 137 v [...]... international and regional human rights bodies focus on economic, social and cultural rights They provide insight into the nature and content of economic, social and cultural rights, and have developed substantial bodies of jurisprudence on these rights The most significant of the institutions dealing with economic, social and cultural rights are: ■ ■ ■ ■ The Committee on Economic, Social and Cultural Rights, ... Committee on Economic, Social and Cultural Rights" in Human Rights Quarterly, vol 9, No 3 (August, 1987), pp 35 2-3 53) 23 ECONOMIC, SOCIAL AND CULTURAL RIGHTS IN PRACTICE 1 Affordable measures to promote and protect economic, social and cultural rights One argument against economic, social and cultural rights is that fiscal considerations will always prevent their enjoyment from becoming a reality for all... the handbook, national human rights institutions have important roles to play in protecting and promoting economic, social and cultural rights To do so effectively, members and staff of national human rights institutions need to have a comprehensive understanding of the legal foundations of and State obligations with regard to economic, social and cultural rights, as well as other features of these rights. .. of economic, social and cultural rights and the legal obligations of States that have recognized these rights 2 A T HE NORMATIVE FRAMEWORK International human rights law recognizes economic, social and cultural rights as integral parts of the human rights framework The key international texts explicitly referring to economic, social and cultural rights are: ■ ■ ■ ■ ■ ■ ■ ■ Universal Declaration of Human. .. conducive to self-help initiatives by the beneficiaries of economic, social and cultural rights, as well as to respect the rights to organize and assemble freely, which are essential for the assertion of demands by those entitled to economic, social and cultural rights 15 ECONOMIC, SOCIAL AND CULTURAL RIGHTS STANDARDS 4 General comments and forced evictions Of the acts of commission and omission considered... not only for States vis-à-vis the realization of economic, social and cultural rights but also for non-State actors such as international financial institutions and transnational corporations, which have a great impact on the enjoyment of these rights The policies of transnational corporations and international financial institutions may lead to violations of economic, social and cultural rights in... social and cultural rights The 1951 Convention relating to the Status of Refugees also contains specific economic, social and cultural rights for refugees 3 ECONOMIC SOCIAL AND CULTURAL RIGHTS STANDARDS 1 The indivisibility and interdependence of all rights The indivisibility and interdependence of all human rights – civil, cultural, economic, political and social – are fundamental tenets of international... to act, and not merely obligations of governmental restraint.15 International Covenant on Economic, Social and Cultural Rights The International Covenant on Economic, Social and Cultural Rights (1966) remains the foundational treaty on economic, social and cultural rights It recognizes the rights to: ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ Self-determination (art 1); Equality for men and women (art 3); Work and favourable... See also Women's International League for Peace and Freedom (WILPF) and INHURED International, Justice Denied: Human Rights and the International Financial Institutions (Kathmandu, 1994) 36 Sigrun Skogly, "Structural adjustment and development: human rights an agenda for change" in Human Rights Quarterly, vol 15, No 4, 1993, p 751 37 The Committee on Economic, Social and Cultural Rights already regularly... national human rights institutions in their efforts to promote and protect human rights All human rights treaties contain provisions of direct relevance to economic, social and cultural rights Even the International Covenant on Civil and Political Rights and other treaties apparently dealing exclusively with civil and political rights, in recognizing the rights to life, equal protection of the law and freedom . NATIONS New York and Geneva, 2005 Professional Training Series No. 12 Human Rights Economic, Social and Cultural Rights Handbook for National Human Rights Institutions N OTE The. interpreting human rights law and human rights viola- tions. Many human rights are essentially permeable. Civil and political rights and eco- nomic, social and cultural