CHAPTER 5: NHRIS, HUMAN DEVELOPMENT AND DEMOCRATIC GOVERNANCE
>> Example: Substantive content of economic, social and
cultural rights obligations
SUBSTANTIVE CONTENT OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS OBLIGATIONS
Human rights (including economic and social rights)
standards are becoming more clearly defined both
internationally and nationally. Courts in a wide range
of countries and legal systems— such as Argentina,
the Dominican Republic, Finland, India, Latvia,
Nigeria and South Africa—have been giving
meaning to obligations associated with economic,
social and cultural rights, including in connection
with workers’ rights and the rights to food, social
security, adequate housing, health and education.
For example, in 2002 the Constitutional Court of
South Africa declared that the Government had
breached its human rights obligations by failing to
take reasonable measures (at affordable cost) to
make wider provision of anti-retroviral medication to
prevent mother-to-child transmission of HIV. This
decision and the grass-roots campaign surrounding
it has saved many lives. Decisions of the Supreme
Court of India, including a 2002 decision concerning
the right to food in the context of a preventable
famine in Rajasthan, have likewise had a significant
beneficial impact in a number of States in that
country. The successful outcomes in these cases are
to a great extent attributable to the fact that
litigation strategies were integrated within wider
social mobilization processes.
OHCHR. Frequently Asked Questions on A Human Rights-Based
Approach To Development Cooperation. 2006
Even for those that have jurisdictional restrictions for
economic, social and cultural rights, these restrictions usually apply only to the power to investigate complaints and
do not typically restrict the promotional role of NHRIs to
advise governments, educate the public about these issues
or to monitor and comment on their application nationally.
It is clearly possible, therefore, for national institutions to
develop and institute programming in a variety of areas
that mesh with development goals. These include the
eradication of poverty, improvement of governance, the
empowerment of vulnerable persons and the equalisation
of opportunities.
NHRIs should include details of their mandate and
relevant activities when preparing comments or assisting
in preparing reports to the Treaty Body under the ICESCR.
NHRI activities in the area should include:9
11 promoting
educational and information programmes
designed to enhance awareness and understanding
of economic, social and cultural rights, both within the
general public and among particular groups, such as
the public service, the judiciary, the private sector and
the labour movement;
11 scrutinising
existing laws, administrative acts, draft
bills, and other proposals to ensure that they are
consistent with the requirements of the ICESCR;
11 providing
technical advice or undertaking surveys in
relation to economic, social and cultural rights;
11 identifying
national benchmarks for measuring
the progressive realisation of economic, social and
cultural rights;
11 conducting
research, monitoring and/or inquiries
to ascertain the extent of realisation of particular
economic, social and cultural rights, at the national
or regional level, or in relation to specific vulnerable
communities; and
11 monitoring
compliance with regard to specific rights
under the Covenant and providing reports to pubic
authorities and civil society.
On 10 December 2008, the General Assembly adopted
resolution A/RES/63/117, on the Optional Protocol to the
International Covenant on Economic, Social and Cultural
Rights. The Optional Protocol authorises the Committee
to receive and consider communications from involving
State parties to the Covenant that become a Party to the
Protocol. It further provides that at Article 2 that communications may be submitted by or on behalf of individuals
or groups of individuals, under the jurisdiction of a State
Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant
by that State Party. As a new procedure in the area of ESC
rights, NHRIs will have key role in lobbying for ratification
General comment n. 10, The role of national human rights institutions in the protection of economic, social and cultural rights, online: (1998), E/C.12/1998/25, CESCR. <http://www.unhchr.ch/tbs/
doc.nsf/(Symbol)/af81bf2fed39cec1802566d50052f53b?Opendocument>.
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