Complaints
Procedure At The UN Likely To overlook The Poorest
By Anthony Ravlich
29 March,
2008
Countercurrents.org
It is very likely the most
disadvantaged will be largely overlooked by the complaints procedure
for economic, social and cultural rights (social justice) being discussed
at the United Nations which so far has failed to ensure that the core
minimum obligations of these rights are included in the text. In addition
New Zealand continues to fail to fully endorse a comprehensive complaints
procedure preferring to be selective as to which rights will apply.
The complaints procedure, called an Optional Protocol (OP), is expected
to be approved by the United Nations Human Rights Council in its session
from 31 March to 4 April, 2008 and if passed in its present form will,
in my view, fail to ensure the State’s social responsibility
to an underclass which has grown considerably since 1991. According
to human rights logic those suffering the most serious violations
must be emphasised over those suffering lesser violations although
not excluding the latter. However previous human rights instruments
have failed to address the needs of those in most suffering. The spirit
of the International Covenant on Economic, Social and Cultural Rights,
which is essentially egalitarian, born in the Industrial Revolution
of the 19th Century and the Great Depression, would be utterly destroyed
as well as the hopes and dreams of billions of people if these human
rights are used simply to further elite interests.
However a positive aspect of draft OP is that it will not only be
concerned with the economic, social and cultural rights of the middle
classes but also that of the majority, working class. This reflects
the emphasis being placed on democracy in the foreign policy of the
Bush administration. This concession by global elites reflects, in
my view, the concern at the global moral decline of the leading liberal
democracies i.e. America and Britain because of their failures in
the Iraq War. Now elite consent for the further pursuit of neoliberalism
is insufficient and majority consent is required. This consent, coupled
with the War on Terror, will help provide unity at a time when stability
is threatened by terrorism and demands by political dissidents for
social justice.
The present draft Optional Protocol (A/HRC/6/WG.4/2,23/4/07), which
deals with social injustices as defined by the International Covenant
on Economic, Social and Cultural Rights (ICESCR), has been under discussion
by open-ended working groups (OEWG) at the United Nations since 2004.
An OP will make it possible for individual, groups or organizations
acting on their behalf to seek justice at the international level
for violations of economic, social and cultural rights by submitting
complaints to the UN Committee on Economic, Social and Cultural Rights.
The adoption of the draft OP will also provide support to efforts
to get greater recognition of economic, social and cultural rights
in domestic law and before courts. When New Zealand acceded to the
OP for the International Covenant on Civil and Political Rights in
1989 this was immediately followed by the New Zealand Bill of Rights
Act (1990), the New Zealand Human Rights Act 1993 plus a number of
commissions to hear complaints. This suggests it is likely there will
be some means of making complaints domestically for infringements
of economic, social and cultural rights once States ratify the OP.
Economic, social and cultural rights (social justice) in addition
to civil and political rights (freedom and democracy) are also part
of the Universal Declaration of Human Rights but since the collapse
of communism in Eastern Europe in 1989 the former have been marginalized
at the United Nations. However, in recent times, with the global concern
for the increasing gap between the rich and the poor and its consequences
economic, social and cultural rights are being given more recognition
at the United Nations. In addition to the present draft OP there are
the discussions taking place simultaneously at the United Nations
on the right to development which requires both sets of rights. While
civil and political rights deal with individual freedoms such as freedom
of speech, non-discrimination and the right to a fair trial, economic,
social and cultural rights are concerned with social responsibility
such as the rights to employment, fair wages, health, housing, education
and an adequate standard of living. Unless the State is socially responsible
people are often too poor to access their civil and political rights
e.g. have a voice in society or the liberty to pursue their dreams.
As with other human rights instruments ratified by New Zealand in
the past which failed to emphasize the human rights of the most disadvantaged
the present draft OP excludes any reference to core minimum obligations
as devised by the United Nations Committee on Economic, Social and
Cultural Rights (see General Comments No. 3 and No. 14). These core
minimum obligations, which deal with some of the worse economic, social
and cultural rights violations such as homelessness, long term unemployment,
children in extreme poverty, benefits below the poverty line necessitating
the use of food banks and begging on the streets, would have ensured
that an emphasis would be given to the most disadvantaged –
those in most suffering. The United Nations afford States a ‘wide
margin of appreciation’ in their interpretation of human rights
instruments and this also applies to the present draft OP. Typically,
in the past, States have used this ‘wide margin of discretion’
to ‘turn human rights on its head’ emphasizing the human
rights of the middle classes, followed by workers and ignoring the
increasing growth of an underclass. As a consequence the requirements
of neoliberalism take priority over human rights.
The draft OP could have provided an opportunity to rectify the miserable
failures of previous human rights instruments which failed to stem
the rapid growth of an underclass. At present according to Catarina
de Albuquerque, the Chair of the OEWG, ‘the proposed text [of
the draft OP for ICESCR] draws from existing communication procedures’
which strongly suggests it will be as irrelevant to the most disadvantaged
as the other instruments have been especially as the great majority
of States pursue neoliberalism which creates a big gap between rich
and poor. International instruments ratified by New Zealand, which
also have an OP or complaints procedure, include the convention on
the elimination of discrimination towards women (1984) and the convention
on the elimination of discrimination with respect to race (1972).
While the human rights instruments were also meant to protect the
most disadvantaged affirmative action policies saw increasing numbers
of women and Maori entering the bureaucracy and parliament but the
underclass increased. The Maori unemployment rate rapidly rose to
16% (and oscillated around that level for 21 years until recently
decreasing to 8% (now that New Zealand has achieved a low wage economy)).
And with respect to women the numbers on Domestic Purposes Benefit
increased considerably from 1984 to the present: from 56,548 in 1985
(Broken Welfare? North and South Magazine, May 2000) to 93,090 in
2006 (2006 Census, Sources of Personal Income, Statistics New Zealand,
Table 37). Also with respect to the covenant on civil and political
rights (1978) much more emphasis was placed on the interests of the
middleclass such as equal pay and non-discrimination with respect
to men and women on high wages while the poor, voiceless and powerless,
have been largely ignored. Unlike many other groups the poor are given
the opportunity to promote their views in the mainstream media i.e.
newspaper space, or time on radio and television. They are generally
forced to use fringe outlets.
Other major flaws of the draft OP, in my opinion, include failing
to ensure human rights education, failing to guard against retrogressive
measures i.e. arbitrarily reducing levels of human rights, and failing
to address the right to development. These issues are fully discussed
in my book ‘Freedom from Our Social Prisons: The Rise of Economic,
Social and Cultural Rights’* (see below).
A controversial issue at the OEWG is whether States should be able
to select the rights they are prepared to be dealt with by the UN
Committee on Economic, Social and Cultural Rights. According to the
NGO Coalition for an OP for ICESCR an OP which would extend to all
economic, social and cultural rights in the Covenant (the comprehensive
approach) is now supported by a growing majority of States, including
all African, Latin American and Carribean states, as well as the majority
of European and an increasing number of Asian states. However the
NGO Coalition states that some states are continuing to push for the
adoption of a so-called ‘a la carte’ OP, under which states
would be able to treat the ICESCR as a menu of rights and specify
which rights they would be willing to accept complaints on. These
latter countries include Austria, Australia, Canada, Denmark, Greece,
Ireland, the Netherlands, New Zealand, Sweden, Switzerland and the
United Kingdom and the NGO Coalition has been trying over the past
month to encourage these countries to change their stance or reserve
their decision. The ‘a la carte approach’ allows States
to exclude inconvenient rights e.g. the right to fair wages in a low
wage economy.
*A more full discussion of the draft OP can be found in chapter five
of my book ‘Freedom from our Social Prisons: the Rise of economic,
Social and Cultural Rights’ due to be released on May 28, 2008.
It is presently being pre sold on the Lexington Books (Rowman and
Littlefield) website as well as other websites.
Anthony
Ravlich
Chairperson
Human Rights Council Inc. (New Zealand)
10D / 15 City Rd.,
Auckland City,
New Zealand.
Ph: (09) 302 2761