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Complaints Procedure at the UN overlooks Poorest

Complaints Procedure at the UN overlooks the Poorest.

Anthony Ravlich
Human Rights Council Inc. (New Zealand)
10D / 15 City Rd.,
Auckland City,
New Zealand.

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.


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