E c o n o m i c , S o c i a l , a n d C u lt u r a l R i g h t s i n I n t e r n at i o n a l L aw Economic, Social, and Cultural Rights In International Law Contemporary Issues and Challenges Edited by E i b e R i e d e l , G i l l es G i a c c a , and C h r i s to p h e G o l ay Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2014 The moral rights of the authorshave been asserted First Edition published in 2014 Impression: All rights reserved No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2013952014 ISBN 978–0–19–968597–4 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work Acknowledgments This book was developed based upon an experts meeting organized at the Villa Moynier in Geneva on 10 and 11 February 2011 The initiative was part of the Swiss Human Rights Chair’s projects supported by the Swiss Department of Foreign Affairs (FDFA) and implemented by the Geneva Academy of International Humanitarian Law and Human Rights (the Geneva Academy) For this purpose, a blend of academic and practitioners’ perspectives was sought to cover a variety of contemporary issues and challenges in the realization of economic, social, and cultural rights The book is the product of tenacity and patience In part, this is due to the number of contributors to this volume, but also to the fact that it is never a simple or straightforward undertaking to have legal scholars and practitioners—all extremely busy people—commit themselves to providing their work for publication The journey has thus been rather a long one, with many twists and turns, and not without its challenges at various points along the way Even though a great variety of topics has been touched upon, it is clear that in the area of economic, social, and cultural rights more challenges lie in wait, for which future research is desirable, but we are convinced that the book has singled out particularly pressing ones Accordingly, we are deeply grateful and indebted to all those who contributed their work for publication in this edited volume This book would not have been possible without the support and assistance of many talented and dedicated individuals For superb assistance in the editorial process, we are greatly indebted to Binesh Hass, whose capacity to work under tight deadlines and provide excellent editing has been admirable We should also like to thank Dr Stuart Casey-Maslen, Head of Research of the Geneva Academy, for his support in editing a number of chapters We are most grateful to the Directors of the Geneva Academy, Professor Paola Gaeta and Professor Andrew Clapham, for having supported the project throughout, as well as to the Executive Manager, Kamelia Kemileva, for her support and assistance Naturally, such a research initiative would not have been possible without the generous financial support of key donors We thus should like to thank the Swiss FDFA, in particular Ambassador Ralf Heckner and Ambassador Thomas Greminger, Human Security Division, as well as Mirko Guilietti and Nathalie Erard, Section for Human Rights Policy, Human Security Division We are also most grateful to the Law Faculty of Oxford University and the Oxford Martin School for funding our project A special thank you to Sandra Fredman, Dapo Akande, and Professor Simon Caney, the Co-Directors of the Oxford Human Rights for Future Generations programme for their undivided support, as well as to our colleagues Dr Jaakko Kuosmanen, Dr Dominic Roser, and Zoe Davis-Heaney vi Acknowledgments Furthermore, we are grateful to Dr Takhmina Karimova for her advice and suggestions throughout the project, as well as to our colleagues of the Geneva Academy Dr Annyssa Bellal, Dr Sharon Weill, Daniela Renggli, Dr Ioana Cismas, Ivona Tuscan, Antonella Ghio, Nathalie Staffler, Antoine Kaboré, Tatiana Avanthay, Jean-Baptiste Maillart, and Antonio Coco We also acknowledge the important contribution of Claire Mahon who started the project with us and whose expertise helped shape the book We dedicate this book to Claire Special thanks are due to the team at Oxford University Press for their support and work on this book, in particular Merel Alstein, Anthony Hinton, and John Louth, as well as to Anto Aroshini and his team from the Newgen Publishing & Data Services for their great work on the final manuscript We are also most grateful to the talented Yashka Steiner who designed the cover of the book Our hope is that our work will make some useful contributions to the important subject matter to which this volume is dedicated: the implementation and realization of economic, social, and cultural rights Professor Eibe Riedel, Dr Gilles Giacca, and Dr Christophe Golay Geneva/Oxford, March 2014 Contents Table of Cases Table of Treaties, Legislation, and Other Relevant Instruments List of Abbreviations List of Contributors xv xxiii xxvii xxxi I I n t ro d u c t i o n 1. The Development of Economic, Social, and Cultural Rights in International Law Eibe Riedel, Gilles Giacca, and Christophe Golay II C h a l l e n g es i n t h e P rot e c t i o n o f E S C R i g h t s i n T i m es o f C r i s i s 2. The Sovereign Bond Markets and Socio-Economic Rights: Understanding the Challenge of Austerity Mary Dowell-Jones 3. Economic and Social Rights in the ‘Great Recession’: Towards a Human Rights-Centred Economic Policy in Times of Crisis Sally-Anne Way, Nicholas Lusiani, and Ignacio Saiz 4. Realizing Economic, Social, and Cultural Rights for All Sandra Ratjen and Manav Satija 5. Gender and Economic, Social, and Cultural Rights Christine Chinkin 51 86 111 134 III I n t e r n at i o n a l D i m e n s i o n o f E S C R i g h t s O b l i g at i o n s 6. The Nature and Meaning of ‘International Assistance and Cooperation’ under the International Covenant on Economic, Social and Cultural Rights 163 Takhmina Karimova 7. Corporations and Economic, Social, and Cultural Rights 193 Olivier De Schutter I V. T h e Re l at i o n s h i p b e t w ee n E S C R i g h t s a n d ot h e r Le g a l Re g i m es 8. Trade and Investment Agreements: What Role for Economic, Social, and Cultural Rights in International Economic Law? Hans Morten Haugen 227 viii Contents 9. Economic, Social, and Cultural Rights in the World Trade Organization: Legal Aspects and Practice Holger P Hestermeyer 10. From the Other Shore: Economic, Social, and Cultural Rights from an International Environmental Law Perspective Stéphanie Chuffart and Jorge E Viñuales 11. The Relationship between Economic, Social, and Cultural Rights and International Humanitarian Law Gilles Giacca 12. Economic, Social, and Cultural Rights: International Criminal Law’s Blind Spot? Larissa van den Herik 260 286 308 343 V C o n c e p t s a n d To o l s to Me a s u r e t h e P ro g r ess i ve Re a l i z at i o n o f E S C R i g h t s 13. Budget Analysis and Economic and Social Rights Aoife Nolan 14. Human Rights Impact Assessments: Emerging Practice and Challenges Simon Walker 369 391 V I T r e n d s i n t h e J u s t i c i a b i l i t y a n d M o n i to r i n g o f E S C R i g h t s at t h e N at i o n a l a n d I n t e r n at i o n a l Leve l 15. Judicial Review in National Courts: Recognition and Responsiveness Malcolm Langford 16. The Intersection of Economic, Social, and Cultural Rights and Civil and Political Rights Ioana Cismas 17. Building Bridges: National Human Rights Institutions and Economic, Social, and Cultural Rights Allison Corkery and Duncan Wilson 18. Transitional Justice Without Economic, Social, and Cultural Rights? Frank Haldemann and Rachelle Kouassi Index 417 448 473 498 517 Detailed Contents Table of Cases Table of Treaties, Legislation, and Other Relevant Instruments List of Abbreviations List of Contributors xv xxiii xxvii xxxi I I n t ro d u c t i o n 1. The Development of Economic, Social, and Cultural Rights in International Law Eibe Riedel, Gilles Giacca, and Christophe Golay Introduction Historical Setting The Practice of the Committee on Economic, Social and Cultural Rights The Nature of Obligations under the ICESCR Sources of ESC Rights other than Treaties Using Indicators in Monitoring ESC Rights International Adjudication of ESC Rights: the OP-ICESCR Outline of the Book: Contemporary Issues and Challenges Conclusion 3 12 20 23 28 35 48 II C h a l l e n g es i n t h e P rot e c t i o n o f E S C R i g h t s i n T i m es o f C r i s i s 2. The Sovereign Bond Markets and Socio-Economic Rights: Understanding the Challenge of Austerity Mary Dowell-Jones Introduction The Noticeable Absence of Human Rights in the Age of Austerity The Challenges Facing Public Finances in the Advanced Economies Austerity and the ICESCR Austerity and Sustainable Human Rights The Role of the Financial Sector in the Debt Crisis Reconciling Rights and Austerity Conclusion 3. Economic and Social Rights in the ‘Great Recession’: Towards a Human Rights-Centred Economic Policy in Times of Crisis Sally-Anne Way, Nicholas Lusiani, and Ignacio Saiz Introduction 51 51 52 56 61 65 68 80 84 86 86 512 Frank Haldemann and Rachelle Kouassi arguments against ESC rights adjudication is the claim that it is undemocratic By enabling the courts to enforce ESC rights, so the argument goes, too much power is handed over to unelected judges on social policy matters that affect the interests of nearly everyone and, therefore, should be dealt with by a representative legislature This is a powerful objection, and courts have tried to respond to it by adopting innovative models of ‘weak judicial review’.64 An oft-noted example is the South African Constitutional Court’s ruling in the Grootboom case.65 The claimant, Irene Grootboom, and other applicants in the case had been evicted from an illegal squatter camp and had moved onto an adjacent sports field, with little more than plastic sheets for protection In its judgment, the Court ruled that the political branches of South Africa had violated the Constitution by failing to develop an appropriate housing plan to address the needs of emergency shelter The Court, however, refused to recognize a right ‘to shelter or housing immediately upon demand’.66 Adopting the so-called ‘reasonableness model’, the Court merely held that the state had the obligation to devise a ‘coherent housing programme’ and to devote ‘a reasonable part of the national housing budget’ to meeting the immediate needs of the poorest and most desperate.67 Prominent constitutionalists lauded the decision as a promising approach to social rights enforcement, attentive to both the value of democratic self-governance and the limited nature of public budgets.68 Other arguments against ESC rights adjudication should also be seriously considered and discussed, but this is surely not the place to so.69 In what follows, we shall confine the discussion to one kind of argument that is of particular relevance here: the claim that ESC rights litigation is largely ineffective as a medium for advancing social justice, especially with respect to impoverished and marginalized social groups It may well be true that ESC rights are no longer mere ‘paper rights’, since courts around the world are now actively enforcing them But does ESC rights adjudication deliver what it promises? Does it really serve the interests of poor and marginalized groups, as is generally assumed? In a recent article, constitutional law theorist David Landau challenges, quite fundamentally, the common view of ESC rights litigation as a powerful medium for social transformation Drawing on extensive fieldwork in Colombia and on evidence from other countries, he argues that such litigation tends to benefit the middle or upper classes rather than the poor ‘Courts’, Landau concludes, ‘are far more likely to protect pension rights for civil servants or housing subsidies for the 64 See, for instance, M. Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008), 18 65 Government of the Republic of South Africa v Grootboom and Others, 2000 (11) BCLR 1169 66 Government of the Republic of South Africa v Grootboom and Others, 2000 (11) BCLR 1169, para. 95 67 Government of the Republic of South Africa v Grootboom and Others, 2000 (11) BCLR 1169, paras 41 and 66 68 See, especially, C. Sunstein, Designing Democracy: What Constitutions Do (Oxford: Oxford University Press, 2001), 221–237 69 For an extensive critical assessment of arguments against social rights, see J. King, supra note 22, at 3–8 Transitional Justice Without Economic, Social, and Cultural Rights? 513 middle class than they are to transform the lives of marginalised groups’.70 Octavio Luiz Motta Ferraz is equally critical about health litigation in Brazil Empirical research demonstrates, he asserts, that social rights adjudication in this field has ‘clearly not benefitted the poor’.71 Virgílio Afonso da Silva is even harsher in his assessment of the Brazilian courts’ role in promoting social justice ‘Empirical data has shown’, he insists, ‘that an effective access to the judicial system in Brazil is almost exclusively reserved for the financially well-resourced litigants Courts are actually an institutional voice for the rich’.72 According to Roberto Gargarella, the phenomenon applies to other Latin American countries as well He speaks of ‘the Latin American legal paradox’: while Latin American countries tend to provide for social rights-rich constitutions, the underprivileged find it difficult to access a judicial system that is ‘too far removed from the people’.73 It is tempting to regard this as an epiphenomenon, a sort of ‘Latin American hiccup’ But that would be too simple As Jeff King notes with respect to constitutional adjudication in the United Kingdom, ‘only a fool would disregard the substantial barriers faced in access to justice by impecunious claimants in their quest for justice in the welfare state’.74 In response to such scepticism, proponents of judicial enforcement of ESC rights tend to invoke the (supposedly promising) experience in India and South Africa In both countries, the judiciary has indeed taken innovative approaches to the judicial protection of socio-economic rights, and several studies found that there is evidence of a positive impact of litigation for the poor and disadvantaged The fact remains, however, that the ranks of the poor are still shockingly vast in India.75 As for South Africa, it is one of the most unequal societies in the world.76 This should give pause even to the most zealous advocates of ESC rights litigation All told, then, caution is required about what ESC rights adjudication can achieve, especially with respect to deep-rooted social injustices in low-income, conflict-ridden societies The answer to the question of whether courts can be useful vehicles for achieving social justice cannot, of course, be determined in the abstract Much depends on the political and social conditions prevailing in the 70 D Landau, ‘The Reality of Social Rights Adjudication’, 53 Harvard International Law Journal (2012), 402–459, 402 (emphasis omitted) 71 OLM Ferraz, ‘Harming the Poor through Social Rights Litigation: Lessons from Brazil’, 89 Texas Law Review (2011), 1643–1668, 1667 72 V.A. da Silva, ‘Taking from the Poor to Give to the Rich’ (his emphasis), available at (last accessed 10 November 2013) 73 R Gargarella, ‘ “Too Far Removed from the People”—Access to Justice for the Poor: The Case of Latin America’, UNDP Issue Paper (Bergen: Chr Michelsen Institute, 2002) 74 King, supra note 22, at 85 75 According to a recent World Bank Report, one-third of the world’s poorest live in India See World Bank, ‘The State of the Poor: Where Are the Poor and Where Are They Poorest?’, 2, available at (last accessed 10 November 2013) 76 South Africa’s Gini index measure—the best known measure of inequality, in which represents the most equal and 100 the least—was 63.1 in 2009 See also ‘Over the Rainbow’, The Economist (London, 20 October 2012) 514 Frank Haldemann and Rachelle Kouassi political community at which the argument about judicial ESC rights is directed Arguably, ESC rights adjudication works best when there is a reasonably independent and well-functioning judiciary and a good-faith political commitment to promoting social rights; conditions that cannot simply be taken for granted in transitional societies, especially poor and war-ridden ones.77 Moreover, and significantly, a lack of institutional resources, a common problem in such contexts, is likely to widen the gap between the constitutional guarantees of ESC rights and the actual enforcement of these rights.78 A certain degree of modesty about what can be achieved is, therefore, in order 5. Conclusion: The Case for Legal Humility The neglect of ESC rights in the dominant ‘script’ of transitional justice is rarely explicitly defended Much of it, we suspect, has to with some old shibboleths about the (supposedly sharp) analytical division between CP and ESC rights The matter is too important to be left unattended, however, and this is why the ESC rights thesis as a substantial contribution to the topic should be welcomed The question of whether social, economic, and cultural concerns should be an integral part of transitional justice discourses is, after all, more than a sideline issue; it involves a debate about the fundamentals of transitional justice, about its meaning and aspirations When they take an explicit stance, advocates of a narrow reading of transitional justice usually make an instrumental case for excluding ESC rights By expanding transitional justice to broad social and economic concerns, they argue, we risk freighting it with expectations so overstretched and impractical as to make the whole project meaningless In this view, particularly aptly defended by Lars Waldorf, transitional justice is best seen as an ‘inherently short-term, legalistic and corrective’ enterprise, essentially focused on accountability for gross violations of CP rights.79 While there is good reason to sympathize with such an attempt to offer a realistic view of transitional justice, it risks losing track of what is believed to be the ‘core’ concern of efforts at ‘coming to terms with the past’: to restore, or build from scratch, a minimally decent social order in the face of large-scale atrocity Without due consideration of basic social rights, understood as entitlements to social goods that are essential for human welfare (food, decent housing, health, etc.), any such project is doomed from the start Or as Amélie Oksenberg Rorty puts it, somewhat more succinctly: ‘First let’s eat and then talk of right and wrong’.80 See King, supra note 22, at 10–12 For an illustrative example, see E. Skaar and JOS Van-Dúnem, ‘Courts under Construction in Angola: What Can They Do for the Poor?’, in R. Gargarella, P. Domingo, and T. Roux (eds.), Courts and Social Transformation in New Democracies: An Institutional Voice for the Poor? (Farnham: Ashgate, 2006), 213–232 (suggesting that the failure to enforce socio-economic rights in Angola is largely due to a lack of human and technical resources within the justice system itself ) 79 Waldorf, supra note 9, at 179 80 A Oksenberg Rorty, ‘From Decency to Civility by Way of Economics: “First Let’s Eat and Then Talk of Right and Wrong” ’, 64 Social Research (1997), 112–130 77 78 Transitional Justice Without Economic, Social, and Cultural Rights? 515 From this perspective, ESC rights are integral rather than marginal to the transitional justice project However, for all its value, ‘social rights talk’ provides no panacea, no quick fix, for the challenges of creating the conditions for social decency, civility, and even justice in the aftermath of political violence Transitional justice, as we understand it, is a slow and messy business The road to change is often difficult and winding, filled with genuine dilemmas and real costs, and there is surely no recipe, no algorithm, for deciding how best to deal with a particular society’s violent past The language of ESC rights, or human rights tout court, has certainly a great potential to inspire social transformation in such contexts; but it is necessary to resist the temptation of getting wrapped up in a kind of ‘absolutist’ human rights rhetoric that tends to obscure, rather than illuminate, the hard choices of transitional governance and ultimately inhibit the art of compromise and broader dialogue about what is realistically achievable, here and now At times, the proponents of the ESC rights thesis risk falling into just this trap This is especially true regarding the issue of judicial enforcement Much of the case for ESC rights adjudication reflects, it can be argued, what Conor Gearty describes somewhat provocatively but aptly as ‘the activist’s desire for a “quick fix” ’ and ‘the lawyer’s partiality for the legal’.81 Not only advocates of ESC rights tend to assume—all too uncritically, perhaps—that courts can provide an effective avenue for advancing social justice; they will generally pay little, if any, attention to the backdrop of social and political conditions which, especially in contexts of fragile transitions and limited resources, may render the judicial enforcement of socio-economic rights prone to all sorts of distorted outcomes Paradoxically enough, the South African Grootboom case provides an illustration of how the judicial enforcement of ESC rights can prove stubbornly difficult, especially in grossly unequal societies.82 The word ‘paradoxically’ is used because proponents of ESC rights have spoken enthusiastically of ‘an extraordinary decision by the South African Constitutional Court’, lauding its approach to the right to adequate housing as ‘novel and exceedingly promising’.83 And yet, in August 2008 the affair came to a sad end Irene Grootboom, the named plaintiff in the case, died ‘homeless and penniless’, in her 40s, while waiting for a decent house eight years after winning the case.84 True, the case led to expansive legislative reforms, but this was hardly a consolation for the one who spent the rest of her life in a shack Something, a deeply felt sense of injustice, was lost along the way Giving effect to ESC rights is no simple task, of course; and there are real questions about whether courts are well positioned to enforce such guarantees But beyond that debate, the Grootboom case is perhaps best seen as an illustration of the deep dilemmas and trade-offs involved in realizing—making ‘real’—ESC rights Gearty, supra note 50, at 35 Government of the Republic of South Africa v Grootboom, supra note 65 83 Sunstein, supra note 68, at 221 84 P Joubert, ‘Grootboom dies homeless and penniless’, Mail and Guardian (Johannesburg, August 2008), available at (last accessed 10 November 2013) 81 82 516 Frank Haldemann and Rachelle Kouassi in transitional societies haunted by the spectre of systemic, deep-rooted violence in the form of socio-economic mal-distribution and cultural misrecognition Simplistically, absolute formulations will not What is needed, rather, is a kind of ‘legal humility’ that enables ‘a more honest acknowledgement of the limitations of legal thinking and practice that aren’t grounded in “the real world” ’.85 Here, as elsewhere, one should take seriously Berlin’s advice: beware the hedgehog, follow the fox.86 85 McEvoy, supra note 12, at 44. Berlin, supra note 54 86 Index accession to the World Trade Organization 278 adequate food 18, 96, 114, 170, 173, 176, 201, 232, 240, 279, 289, 321, 326, 333, 334, 339, 350, 354, 374, 380, 392, 393, 400, 412, 507 adequate standard of living 5, 6, 48, 62, 64, 82, 85, 88, 92, 109, 120, 124, 139, 144, 146, 173, 184, 201, 233, 234, 243, 281, 298, 305, 307, 321, 322, 328, 331–5, 354–6, 404, 457, 483 aid and food 199, 370 and humanitarian 149, 165, 205 and interpretation of Covenant provision 47 and interpretation of statutory provisions 62 and interpretation of structural principles 62 and legal representation 440 and the Paris Declaration 197 as food 190, 199, 326, 370 as standard of achievement 176 foreign 75, 236 legal 64, 443 of first aid approach 319 to children 168 Arab Spring 48, 501 Arbour, Louise 45, 46, 48, 150, 151, 352, 365, 499, 502–10 armed conflict affecting state behaviour 320 and economic, social, and cultural rights 5, 14, 43, 189, 190–2, 308–20, 340, 353 and education 320, 329, 362 and food 354 and forced evictions 361 and health 357 and human rights law 317 and international humanitarian law 312–15, 327–30, 340, 356–62 and international law 40 and medical assistance 358 and natural disasters 375 and the environment 332 and the International Court of Justice 316 and the law of occupation 313 and the protection of cultural heritage 364 and water 356 application of human rights law in 311 between the Democratic Republic of Congo and Uganda 316 between Israel and Gaza 335–7 children in 167 gender dimensions of 39, 146–55 in treaties 242, 243 internal 185, 314, 341 international 185, 313, 355, 359, 375 law of 43 legal discourse and practice of 311 low-intensity 313 non-international 185, 314, 320, 360, 363 asylum seekers and assistance from NGOs 29, 30 and the right to food 436 rejected 469 autonomy and the International Covenant on Economic, Social and Cultural Rights 118, 163 of the individual 344 of the young generation 81 structural and functional 474 boys and sexual violence 151 minimum age of marriage for 142, 145 right to education of 141, 142, 157, 158 Canada and minimalist conceptions of economic, social, and cultural rights 420, 469 discussions of discrimination and poverty in 125 free trade agreement with Columbia 394, 413 Canadian Human Rights Act and anti-poverty advocacy 125 and unequal pay for men and women 126 children and armed conflict 167 and education 88, 318–20, 329, 330, 333, 341, 362, 430–2, 462, 466, 472, 483 and health 319, 386 and labour 247 and rape 150 antiretroviral treatment of 483 mental health of 381, 382 Palestinian 328, 329 Roma 120, 121, 143 special measures of protection 138 violence against 329 with disabilities 119, 120 civil and political rights and Commission on Human Rights of the Philippines 490 and constitutional history of economic, social, and cultural rights 420 518 Index civil and political rights (cont.) and human rights in general 286 and human rights impact assessment 391 and international criminal law 343 and international law 314 and social unrest 88 and the International Covenant on Civil and Political Rights 7, 111, 118, 137, 138, 230, 243, 295, 301, 308, 321, 361, 450, 489 and their intersection with economic, social, and cultural rights 34, 46, 47, 138, 172, 286, 448–72, 475, 487, 489, and transitional justice 498, 499, 501 Coercion and Distribution in a Supposedly Non-Coercive State 207 Cold War 6, 45, 48, 344, 452–9, 473, 503, 507 Committee on the Elimination of Discrimination against Women (CEDAW) and defining gender 135 and discrimination 136 and International Covenant on Economic, Social and Cultural Rights 135–59 and principle of non-discrimination 17 and right to water 356 Optional Protocol to 29–33, 311 Corporate Citizenship Report 54, 70, 71 customary law and disaster relief 188 and human rights 21 and investment tribunals 255 and the prohibition of the use of starvation as a method of warfare 326 and the protection of the environment 332, 334 and the South African Bill of Rights (1993) 218 and the treatment of foreigners 257 democracy and human rights 112, 180, 247, consolidating 276 constitutional 439 environmental 299 market 423 multi-party 351 promotion of 196 developed states 15, 165 and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 178 developing states and development assistance 174 and the obligation of international assistance 165 and the primary concern of the West 453 development discourse 163 economic 54, 94, 96, 99, 168, 181, 183, 477 international 90, 168, 169, 175, 180, 236, 494 Millennium Development Goals 24, 39, 176, 183, 234–6, 494 sustainable 3, 70, 81, 83, 182, 290, 291, 294, 493, 494, 496 disability 114, 119, 123, 127, 140, 169, 387 discrimination 16, 17, 37, 96, 97 and government conduct 96 and non-discrimination 9, 13–21, 38, 95, 96, 104, 105, 112–26, 131–9, 146, 154–9, 221, 233, 239, 240, 252, 257, 261, 386, 399, 469, 470, 383 and migrants 88 and substantive equality 96, 111, 113 and women 37 distribution and strategies 152 of food supplies 172, 232 of health facilities 65 of income 389 of power 136 of resources 135, 326 unequal 154 domestic law implementation of economic, social, and cultural rights in 11, 24, 29, 46, 476 incorporation of international treaty obligations in 436 and international human rights law 108, 199 and sovereign debt 109 and the freedom of association in the UK 223, 224 and the World Trade Organization 243 restrictions on foreigners possessing land 242, 243 economic crisis and global human rights implications of 86–113 and women’s human rights 149 and austerity measures 385 and vulnerable groups 386 and progressive economics 388 and neoliberalism 389 economic growth 38, 56, 82–3, 87, 89, 98, 100, 102, 110, 221, 276 education access to 120, 124, 138, 141, 142, 147, 329 American education jurisprudence 428–35 and armed conflict 340, 341, 363, 364 and gender relations 141, 142, 157, 158 continuity of 320 dismantling of educational institutions 333 for disabled persons in the Occupied Palestinian Territories 120 higher 506 judicial 441 lack of 336 in armed conflict 329 Index of children 318–20, 329, 430–2, 471, 472, 483 primary 88, 435, 504, 508 private 379 right to 9, 13, 46, 64, 88, 94, 104, 139, 150, 155, 157, 158, 278, 301, 307, 314, 320, 328–30, 333, 338, 340, 341, 350, 362, 370, 380, 419, 427, 428, 429, 433–5, 442, 447, 462, 470–2 standard of 435 elderly 64, 152 employment right to 9 of coloured people 22 and austerity measures 36 rate 37 and public sector 59 and international human rights 73 and social and economic trauma 83 and under-employment 83 equality and comparative distributive responsiveness 442–6 and education 104 and gender 132, 134–60, 386, 457 and income 86–90 and intersectionality 469 and legislation 118, 386 and non discrimination 9, 95, 105, 112–26, 155, 156 and public sector duties 104 and rights 38, 39, 95, 96, 126–32, 469 and school financing 430 and standard review for equality lawsuits 126–9 assessments of 413 for Romani people 120, 121 distinction between non-discrimination and equality 122 Equality and Human Right’s Commission (UK) 66 radical equality 443 weighted equality 443 European Commission on Human Rights 219, 267 European Committee of Social Rights (ECSR) 131, 140 European Convention on Human Rights (ECHR) xiii, 10, 30, 47, 105, 147, 205, 223, 264–5, 267, 288, 386, 465, 489 European Court of Human Rights xiii, 10, 105, 147, 205, 206, 254, 264, 287, 288, 299, 347, 421, 425, 465, 468 European Court of Justice (ECJ) 108, 220, 266 European Social Charter 10, 12, 29, 308, 436 European Union (EU) xiii, 10, 29, 36, 59, 66, 74, 79, 83, 89, 105, 108, 109, 169, 189, 229, 247, 248, 251, 261, 266, 273, 275, 282, 293, 303, 390, 412, 438, 480, 493 519 exploitation economic and social in relation to women 138, 146 of children 440, 441 of copper and molybdenum in the Lori region of Armenia 305 of indigenous people in Uganda 200 of markets 93 of natural resources by high ranking Uganda officials 323 of oil fields in the Niger delta 197 extraterritoriality 196 food humanitarian aid as 326, 354 right to 9, 18, 21, 27, 41, 88, 95, 139, 154, 165, 170, 172, 176, 197, 199, 201, 208, 217, 228, 235, 239, 241, 278, 279, 284, 298, 305, 307, 312, 326, 354, 360, 393–6, 404, 436, 441, 446, 456, 458, 462, 484, 488, 499 security of 88, 237, 240, 241, 280, 284, 289 supplies 232 trade of 232–4 withholding of 222 foreign policy 18, 170, 350 France 59, 71, 78, 79, free trade xiii, 45, 94, 152, 229, 230, 282, 296, 393, 394, 396, 398, 400, 402, 403, 410, 413 freedom civic and political 454, 498 rights 6, 34 of assembly 314 of choice 133, 221 of contract 217, 221, 222 of expression 107, 205, 314, 346, 452 of movement 141, 147, 321, 352, 359 of press 206, 314 of religion 206, 470, 471 of thought 103, 221 to act 136 girls and economic inequality 146 equal rights of 139 female genital mutilation of 119 minimum age of marriage for 142, 145 right to education of 88, 141, 142, 158 unpaid work by 144 violence against 144, 363 with disabilities 119, 120 globalization and financial markets 52 and gender 146–8 and labour 152 and neoliberalism 60, 85, 146 and sustainability 70 Gross Domestic Product (GDP) xiv, 30, 168 Great Depression 5, 86, 100 520 Index habeas corpus 21 health right to 19, 24, 25, 45, 62–5, 96, 167, 198, 213, 216, 217, 275, 276, 280, 281, 284, 289, 290, 298, 305–7, 312, 319, 325, 326, 332–40, 357, 391, 394–400, 404–7, 413, 459, 470, 472, 479, 480 healthcare 57–9, 82–5, 119–21, 146, 147, 152–7, 207, 309, 312, 313, 319, 331, 341, 342, 350, 357–9, 466, 469, 470, 481, 487, 489, 499, 509, 510 HIV/AIDS 114, 119, 159, 233, 359, 363, 439, 465, 506 households female-headed 137, 152 large 439 poor 100 housing adequate 121, 139, 144, 154, 362, 457, right to 32, 88, 96, 130, 197, 199, 298, 307, 314, 324, 325, 340, 389, 423, 437, 440, 445, 448, 462, 466–8, 489 Human Rights Commission xiv, xv, 66, 126, 166, 393, 394, 474, 476–81, 484–7, 489–90, 492 Human Rights Committee (HRC) 11, 30, 33, 107, 117, 301, 361, 450, 469 Human Rights Council (HRC) and domestic legitimacy 476 and human rights impact assessments 413 and human rights non-treaty sources 23 and international cooperation 166 and litigation by individuals, groups, and NGOs 29 and the gendered understanding of economic, social, and economic rights 139 and the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights 28 and the right to food 241, 400 endorsement of the 2011 Guiding Principles on Business and Human Rights 40, 41, 194, 231, 236 on extreme poverty 125 on safe and clean drinking water and sanitation 458 on the global financial crisis 98 human rights law and arbitral tribunals 252–8 and armed conflict 310, 311 and austerity 80, 81 and corporations 193–224 and economic models 91 and education 320 and future generations 68 and impact assessment 408–10 and international criminal law 343–52, 366, 371 and international humanitarian law 43, 149, 309–15 and international obligations 196 and intersectionality 449 and social security 67 and the Gaza conflict 335–7 and the Israeli Separation Wall 321–4 and the World Trade Organization 269 and use of excessive force by Israeli forces against Lebanese civilians 334–5 appropriation by private economic actors 105 challenges to 39 compliance with 62, 66 diffusion of responsibilities as a problem for 107 implications of austerity on 38 interpretation of 309 monitoring of 313 normative standards and principles of 91–7 standards of 37 universality of 39, 111, 113, 489 hygiene environmental and industrial 233, 289, 290 inequality (see equality) income and conflict-ridden societies 513 and service 81 and social violence 149 and the World Trade Organization 281 and war-torn societies 502 corporate 67 government 57 inequality 86, 90, 102, 501, lack of 124 spent on food 88 internally displaced persons 149, 150, 176, 355, 479 Inter-American Commission Human Rights 451 International Convention on the Elimination of all Forms of Racial Discrimination 118 Inter-American Court of Human Rights 47, 111, 152, 153, 234, 288, 365, 421, 425, 500 Inter-American human rights system 451 International Court of Justice (ICJ) and corporate entity law 208, 209 and customary international law 233 and general principles of law 237 and humanitarian assistance 190 and the International Covenant on Economic, Social and Cultural Rights 33, 34, 190 and the Israeli Separation Wall 320–4 and the lex specialis maxim 315 International Covenant on Civil and Political Rights (ICCPR) and discrimination 469 and right to property 459 different from the International Covenant on Economic, Social and Cultural Rights 7, 8 Index drafting process of 454, 457 violations of 450 International Covenant on Economic, Social and Cultural Rights (ICESCR) and austerity 61–5 and budget analysis 373–86 and climate change 292 and constitutionalization 424 and crises 81 and culture 363, 364 and education 362, 363 and discrimination 113, 156 and domestic law 46, 424, 476 and domestic violence 145 and fair remuneration 201 and forced labour 243 and Gaza conflict 335–7 and gender 134–60 and global economic crisis 87 and health 290, 319, 332, 357–9 and housing 361, 362 and human rights obligations 33 and humanitarian assistance 359–61 and infant mortality 319 and international cooperation 164–6, 175–8, 182, 189–92 and intersectionality 469 and Israeli Separation Wall 320–5 and justiciability 422 and non-justiciability 45 and recent protests 48 and retrogression 59 and right to property 459 and sanctions 337 and social welfare institutions 137 and state compliance 27 and state cooperation 174, 175 and state obligation 151, 169 and the Committee on the Elimination of Discrimination against Women (CEDAW) 135–59 and the Committee on Economic, Social and Cultural Rights (CESCR) 231–4, 290, 371 and the World Trade Organization 42, 260–85 and water resources management 292 as an economic charter 53 different from the International Covenant on Civil and Political Rights 7, 8 drafting process of 454, 457 imprecise wording of 349 Optional Protocol to 4–11, 28, 29–34, 35, 48, 116–18, 128–32, 159, 160–70, 175, 178, 261, 285, 295, 296, 311, 323, 330, 375, 385, 418, 424, 450, 457–60, 493 international criminal law and adequate standards of living 333, 334 521 and economic, social, and cultural rights 44, 352–66, 510 and human rights law 343–52, 366, 371 and the principle of legality 349 international human rights law (see human rights law) international humanitarian law (IHL) and access to food 354 and armed conflict 357–64 and economic, social, and cultural rights 308–42 and human rights law 43, 149, 309 and Israel 322, 325 and non-state actors 314 and Sri Lanka 326 and the protection of persons in the event of disasters 164, 184, 190 and the survival of civilians 184 application to UN peacekeeping missions 267 compliance with 315 general principles of 185 relevance of economic, social, and cultural rights to the application of 318–20 role in the interpretation of economic, social, and cultural rights 320–24 International Labour Organization 55, 87, 277, 377 jus cogens 21, 109, 111 justiciability and economic, social, and cultural rights 112, 118, 126, 132, 133, 284, 285, 385, 417–31, 435, 438, 453, 454, 457, 460–5, 468, 478, and international humanitarian law 313 and labour rights 284 and the right to health 405 constitutional rights 421 objections of 434, 451 right to housing 437 labour child 216, 247, 278, 400, 440, 441 conditions of 82, 152, 314 costs 281 forced 147, 243, 244, 247, 314, 376, 478 gendered 142, 146, 148 international organization of (see International Labour Organization) law 198, 483 market 119 migration of 147, 148 of women 478 policies 148 prison 243, 244 protections 90, 147 reforms 89 rights 87, 153, 216, 218, 247, 251, 281, 284, 404, 441, 469 522 Index labour (cont.) risks 55 sexual division of 146 standards 19, 247, 277, 281, 282, 400 language and economic, social, and cultural rights 12, 182, 302, 388, 511, 515 and humanitarian assistance 185 discriminatory 142 gender neutral 137, 138 human rights 118, 234, 246, 259, 279, 293, 294, 298, 309, 312, 502 of development 477 of duties 191 of obligation 179, 246 sexist 158 the appropriation of human rights language by private businesses 105 legal humility 514–16 marginalised groups and persons and collective action 133 and education 104 and health services 19 and litigation 133, 425 and NGOs 29, 30 and non-discrimination 16, 17, 95, 104, 156 and risk factors 129 and state sponsored projects 36, 37 and the management of resources 326 and the rule of law 125 as women and ethnic 112, 140, 143, discrimination against 88, 118, 124 organizations representing 121 unemployment rate of 221 medicine access to 20, 231–3, 279–84, 393, 398, 400–8, 443 and patents 280–3 deprivation of 358 holistic 470 judicial orders for 446 refusal of 470 migrants and gender 138 as asylum seekers 29, 436, 469 discrimination against 88, 387 illegal status 138 prejudice towards 387 workers 144, 147, 152, 153, 349 minorities and assistance from NGOs 29, 30 and gender 143, 144 and the use of public interest in litigation to advance the rights of 130 and unemployment 87 and unequal access to education in the UK 104 mortality infant 138, 319, 461, 465, 498 maternal 138, 155, 159, 319 neoliberalism accounts for constitutional reluctance 423 concerns about the withering away of the state 58 paradigm shift from 389 triumph of 60 zeitgeist of Ireland’s elite 427 non-discrimination and equality 9, 95, 105, 112–26, 155, 156 and education 157 and European Convention on Human Rights 386 and employment 221 and health 233 and human rights law 252, 257 and International Covenant on Economic, Social and Cultural Rights 13–21 and Article of the UN Charter 111 and European Convention of Human Rights 104, 105 and minimum core obligations 95 and sex and gender 134, 157–60 and UK Human Rights Act 104 and women 146 and World Trade Organization 261 expansion of 132 non-justiciability (see justiciability) non-state actors (ANSAs) and economic, social, and cultural rights 242, 273, 375 and gender 146 and international humanitarian law 314 and international law 314 and national economic policies 107 and neoliberalism 289, 290 and the global financial crisis 491 applicability of human rights law to 19 financial institutions and markets as 84 harmful activities by 197, 202 in Darfur 448 nutrition and intersectionality 458 dissemination of information relating to 19 lack of 124, 154, 498, 502 measures to protect 245 Paris Principles (Principles Related to the Status of National Institutions for the Promotion and Protection of Human Rights) 474, 475, 485–92, 495 postcolonial period and the Universal Declaration of Human Rights 21 studies 449 Index poverty and anti-poverty groups in Canada 125 and discrimination 124, 125 and labour migration 148 and the chronic denial of socio-economic rights 124, 125 and the full belly thesis 498 and women 146–49 extreme 88, 93, 94, 97–9, 101, 121, 124, 125, 150, 192, 377, 388, 509 feminization of 39, 146–9 macro questions of 30 reduction of 179, 180, 183, 443 principle of non-retrogression and fiscal readjustments 95 and progressive realization 15, 93 and retrogressive measures 63, 375–8 and school budgets in New Jersey 434 and social spending cuts 94 as clearest and most longstanding principle of the International Covenant on Economic, Social and Cultural Rights 63 obligation of 427 protection of 98 principle of pluralism 474 Principles Related to the Status of National Institutions for the Promotion and Protection of Human Rights (see Paris Principles) proportionality and austerity 36 and distributive implications 445 and international law 254, 255, 321, 322, 328 and military necessity 334 and policy objectives 41, 42, 107, 230, 253 and the Committee on Economic, Social and Cultural Rights (CESCR) 31 and the principle of non-discrimination 16 prostitution 146 punishment and the Convention Against Torture and Other Cruel, or Degrading Treatment or Punishment 460 and the Eighth Amendment of the US Constitution against unusual 466 as hard labour 243 collective 327, 337 corporal in UK public or private schools 470, 471 redress and formal equality 141 and judicial remedies 133 and transitional justice programmes 151 de facto discrimination 156, 507 disparity 141 for acts of violence 145 523 for historic disadvantage and subordination 156 for human rights violations 10, 19, 31, 133, 306 for those adversely affected by actions taken by financial sector institutions 101 occupational segregation 157 second generation rights 344 socio-economic 506 remuneration equal 9, 113, 119, 120, 138 fair 201 Roma 120, 121, 143, 467 Rome Statute 339, 340, 343, 344, 348, 351, 358, 360, 363, 510 sanctions 201, 228, 267, 269, 278, 337 second generation rights 344, 349 social justice 4, 112, 125, 135, 150, 151, 217, 352, 389, 467, 486, 487, 499, 501–8, 512–15 state responsibility 93, 169, 207, 233, 237, 250, 464 Tehran Conference 308, 309 trade unions and constitutional rights 421 gendered dimensions of 148 municipal servants right to form 306 rights of 9 transnational corporations and economic policy 107 and human rights 92, 194, 199–204, 231, 236 crimes of 44 obligations of 40 treaty monitoring body and right to development 176 UN Committee on Economic, Social and Cultural Rights (CESCR) 4, 176 Uganda and armed conflict 316, 323 and national human rights institutions (NHRIs) 494 and the constitutional entrenchment of economic, social, and cultural rights 507 land evictions in 200 United Kingdom and constitutional adjudication 513 and domestic incorporation of economic, social, and economic rights 423 and equality impact assessments 393 United Kingdom Human Rights Act and accusations of having a distorted vision of human rights 384 and non-discrimination guarantees 104 United Nations 5, 70, 111, 134, 139, 160, 165, 178, 203, 204, 208, 235, 308, 460, 473, 477 524 Index United Nations Fact Finding Mission on the Gaza Conflict 151, 152, 331, 335–7 Universal Declaration of Human Rights (UDHR) and economic, social, and cultural rights 5, 452–4 and international order 85 and the gender-neutral language of the International Covenant on Economic, Social and Cultural Rights 137 and the right to adequate food 354 and transnational corporations 203 United Nations Secretary-General and gender 160 and globalization 243 and the protection of civilians in armed conflict 309, 360 and the rule of law 500 and transnational corporations 199–204, 231, 239 and universal values 112 and violence against humanitarian civilians 360 United States of America and comparative law 428–35 and legislation protecting employees 211 and the implementation of economic, social, and cultural rights 36 and the separation of civil and political rights from economic, social, and cultural rights 7 constitutional law of 207 education litigation in 419, 428–35 financial commitments of 78 free speech in 206 human rights impact assessment of 403 illegality of the Cuba embargo by 275 insolvency of 57 judicial hesitation regarding human rights and corporations in 195 not having ratified the International Covenant on Economic, Social and Cultural Rights 8, 429 right to education in 428 Vienna Convention on the Law of Treaties 33, 165, 177, 184, 248, 251, 252, 266, 267, 270, 272, 274, 316 Vienna Declaration of Human Rights 7, 22, 28, 48, 134, 139, 176, 231, 344, 455, 474, 487, 491, 495, 501, 503 violence against children 329 against disabled persons 119 against men 145 against women 139, 145–59 and forced eviction 324 and humanitarianism 360 gender-based 39, 134, 144, 145, 357 socio-economic dimensions of 357 structural 504–8 wartime and sexual 151–5, 309 war against inflation 81 and human rights 308, 344 civil 498, 499 crimes 326, 329, 334, 335, 339, 340, 341, 353, 355, 360–4 financial 52, 81 intentional denial of economic and social rights as a tactic of 150, 326 prisoners of 358 victims of 151, 152 water and international humanitarian law 312 as a social asset 200, 201 international recognition of 458 management of 32, 292–5 privatisation 423 right to 32, 114, 155, 174, 198–200, 290–8, 307, 327, 328, 339, 340, 350, 356, 357, 380, 472, 480 welfare and austerity 58 and due process in the US 429 and human rights law 318 in democratic societies 16 in the UK 58, 59 liabilities of 67 of Palestinians 323 state spending on 62 welfare state and impecunious claimants 513 affordability of Europe’s 76, 93 antipathy towards 66 crisis of 60, 81, 84 expansion of 56 New Zealand 378 restructuring of 51, 52 South Africa 128 sustainability of 63 UK 58, 59 women and access to services 141–3 and conflict 149–55 and economic inequality 146–49, 154, 160, 221 and economic, social, and cultural rights 39, 134–60, 455 and education 362 and gender 135–8, 159 and gender-based violence 144, 145, 357 and healthcare 155, 156, 396, 438 and human rights assessment 393 and intersectionality 449 and natural disasters 152 and rape 357 Index and substantive equality 141 and the global economic crisis 87, 90 and witchcraft 478 violence against 139, 145–59 with disabilities 119 work right to 64, 100, 114, 120, 147, 201, 221, 243, 301, 314, 376, 380, 445 workplace and patriarchy 147, 159 discrimination in 121, 136, 202 gender analysis of 159 525 human rights violations in 136 insecure 112 World Bank 58, 88, 107, 168, 181, 237, 239, 370, 423 World Health Organization 411 World Organization against Torture 456, 460 World Trade Organization (WTO) and children 168 and economic, social, and cultural rights 260–85, 392 and international law 41 and recognition of human rights 242–8 ... 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