Basil Fernando

(Ed. Note: The following is a paper originally presented at the Asia Pacific Regional Conference of the International Council on Social Welfare. )

Roots of Human Rights Problems

Despite the growth of human rights movements in Asia, the opportunities for discussions on social rights are very rare in the region. This is strange because most of the human rights problems in this region have their roots in un-addressed social issues.

For example, the issue of caste which affects adversely more than 230 million people in India alone, is basically a social issue: in many countries much of the problems relating to women, gender inequality and absence of gender justice, are related to traditions. Domestic violence and female unemployment is often a result of social customs, sanctioned even by the way some of the religious doctrines are interpreted.

Even issues like disappearances, which is a significant problem in some countries are very much related to the inability of the states to fulfill their obligation in providing gainful employment particularly to the youth. The same is true of several violent conflicts relating to minority rights. Most child rights issues, such as bonded labour, sexual exploitation, denial of basic educational opportunities, and neglect of the girl child are deeply related to processes of social discrimination, which have traditional roots. The collapse of the rule of law in some countries and the growing sense of insecurity among the citizens in some societies is also related to tensions arising from the failure to carry out obligations relating to Economic, Social and Cultural rights. In short, civil and political rights issues of the region cannot be separated from Economic, Social and Cultural issues.

Perhaps, it may be useful to look at some developments that have taken place in the international jurisprudence on Economic, Social and Cultural rights issues and then return to regional issues relating to human rights and social development.

Developments in Social Rights

Two meetings were held by some eminent jurists, one at Limburg in 1986 and another at Maastricht in 1997 at which some basic principles relating to these matters were laid down. In fact these documents were the products of an attempt to summarise the developments in international law and practice in the recent decades. Let us spend a short while recalling some of the Maastricht Principles.

It recognises that there has been a deterioration of the enjoyment of rights and adds that,

"The gap between rich and poor has doubled in the last three decades, with the poorest fifth of the world's population receiving 1.4% of the global income…. The impact of these disparities on the lives of people - especially the poor - is dramatic and renders the enjoyment of economic, social and cultural rights illusory for a significant portion of humanity."

Quite a large part of Asian people may come under that 20%. For us, you and myself, living in this part of the world, these statistics speak not just of numbers but of faces and images, voices and pleas. You are here because you have in some way tried to respond to these people.

It is not difficult for us to agree with the connection the jurists have made to the present day changes and the diminishing of rights; the statement reads "Since the end of the Cold War, there has been a trend in all regions of the world to reduce the role of the state and to rely on the market to resolve problems of human welfare, often in response to conditions generated by international and national financial markets and institutions and in an effort to attract investments from the multinational enterprises whose wealth and power exceed that of many states. It is no longer taken for granted that the realisation of economic, social and cultural rights depends significantly on action by the state, although, as a matter of international law, the state remains ultimately ' responsible for guaranteeing the realisation of these rights. While the challenge of addressing violations of economic, social and cultural rights is rendered more complicated by these trends, it is more urgent than ever to take these rights seriously and, therefore, to deal with the accountability of governments for failure to meet their obligations in this area."

Thus the changed economic conditions impose a greater burden on the governments and the "states are as responsible for violations of economic, social and cultural rights as they are for violations of civil and political rights." The recognition of the equal responsibility of governments for economic, social and cultural rights as for civil and political rights is perhaps one of major advances in international jurisprudence during this decade.

Obligations of State Conduct and Result

Arising from the principle of equal responsibility, "Like civil and political rights, economic, social and cultural rights impose three different types of obligations on States: the obligations to respect protect and fulfil. Failure to perform any one of these three obligations constitutes a violation of such rights.

The obligation to respect requires States to refrain from interfering with the enjoyment of economic, social and cultural rights. Thus, the right to housing is violated if the State engages in arbitrary forced evictions. The obligation to protect requires States to prevent violations of such rights by third parties. Thus, the failure to ensure that private employers comply with basic labour standards may amount to a violation of the right to work or the right to just and favorable conditions of work. The obligation to fulfil requires States to take appropriate legislative, administrative, budgetary, judicial and other measures towards the full realisation of such rights. Thus, the failure of 'States to provide essential primary health care to those in need may amount to a violation." The recognition of these principles amounts to greater acceptance of the significance of the type of work you are engaged in.

The obligations to respect, protect and fulfil, each contain elements of obligation of conduct and obligation of result. The obligation of conduct requires action reasonably calculated to realize the enjoyment of a particular right. In the case of the right to health, for example, the obligation of conduct could involve the adoption and implementation of a plan of action to reduce maternal mortality. The obligation of result requires States to achieve specific targets to satisfy a detailed substantive standard. With respect to the right to health, for example, the obligation of result requires the reduction of maternal mortality to levels agreed at the 1994 Cairo International Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women.

Concept of Common Humanity Secures Social Rights

Thus the International Jurisprudence relating to your area of work is expanding. Unfortunately the same cannot be said of Jurisprudence and the current practices of the countries of the region. Is the excuse due to lack of resources? However, such an excuse is not justifiable regarding the core obligations, as resource scarcity does not relieve States of certain minimum obligations in respect of the implementation of economic, social and cultural rights. Thus, for example, in a State where a significant number of individuals are deprived of essential foodstuffs, essential primary healthcare, basic shelter and housing, or of the most basic forms of education we see a prima facie violation of the Covenant. Such minimum core obligations apply irrespective of the availability of resources of the country concerned or any other factors or difficulties.

Cultural or religious traditions are no excuses for ignoring the obligations arising from the Covenant. The State cannot justify derogation or limitations of rights recognised in the Covenant due to different social, religious and cultural backgrounds.

This is an area where more attention is needed in this region. The deprivation of women’s rights is often justified in terms of religion or customs. Even at the end of twentieth century, in many parts of Asia, a girl child has less chance of education, employment or a free choice in marriage. It is sad to see such practices being justified as expressions of Asian values. The practice of Caste is justified in South Asia in a similar manner. It is also unfortunate to see acts based on religious intolerance taking place to an extreme degree. In some parts of Asia even the possibility of a nuclear war has been raised.

Any genuine effort to gain acceptance for international jurisprudence on promotion of economic, social and cultural rights must critically address these problems. Those who speak of "Asian values" say, that the West is in a spiritual crisis while we have no such crisis. This is far from the truth. Asia has been, and will continue to be in a deep spiritual crisis, -one of the worst the mankind has ever known- mainly due to our inability to arrive at a consensus on human equality, unless some significant changes are made.

Despite the great religious traditions we have inherited, we have not been able to accept common humanity of every human person, irrespective of gender, race, caste and Sakdina.

The State cannot use the "progressive realisation" provisions in article 2(1) of the Covenant as a pretext for non-compliance. The fact that the full realisation of most economic, social and cultural rights can only be achieved progressively, which in fact also applies to most civil and political rights, does not alter the nature of the legal obligation of States which requires that certain steps be taken immediately and the others as the conditions improve. Therefore, the burden is on the State to demonstrate that it is making measurable progress toward the full realisation of the rights in question. There is no dispute that full realisation and the actual level of realisation may not be the same for quite sometime to come, given the nature of uneven development we all experience. The dispute is about how significant a beginning has been made by each country and at what momentum the objectives of these Covenants have been pursued? In this respect it is worth recalling some of the principles enunciated at Limburg (1986).

The obligation of progressive achievement exists independently of the increase in resources'- it requires effective use of resources available: Progressive implementation can be effected not only by increasing resources, but also by the development of societal resources necessary for the realisation by everyone of the rights recognised in the Covenant: "to the maximum of its available resources"; States parties to the Covenant are obligated regardless of the level of economic development, to ensure respect for minimum subsistence rights for all. "Its available resources" refers to both the resources within a State and those available from the international community through international cooperation and assistance. In determining whether adequate measures have been taken for the realisation of the rights recognised in the Covenant, attention shall be paid to equitable and effective use of and access to the available resources: In the use of the available resources due priority shall be given to the realisation of rights recognised in the Covenant, mindful of the need to assure everyone the satisfaction of subsistence requirements as well as the provision of essential services. "individually and through international assistance and co-operation especially economic and technical"

It can thus be said, that under the modern International Jurisprudence, international

co-operation is an obligation and not merely an option. No one disputes today that it takes a lot of cooperation to keep people poor. No child dies of hunger due only to its own or the negligence of his family. When we see television pictures of all types of human misery we can no longer say, "it is all their fault." To say so only demonstrate one's ignorance of the negative systems of cooperation.

If the Covenant meant anything, it was this; the Covenant states that elimination of poverty is a human obligation; providing basic education is a human obligation; providing basic facilities for a decent life is a basic human obligation. The last few decades we have seen some progressive measures in this direction. The debate relating to third world debt has begun to bear some fruit. It is necessary to articulate this problem in relation to Asia. While the issue of debt does not encompass the whole issue of poverty, it is quite an important aspect of it and the Asian countries also need to derive benefits from this debate.

Rather an alarming aspect of social reality of most Asian countries in recent times is the abandoning by the state of its most basic functions, for instance the policing functions. The most victimised are the poorest sections of society. The police often become part of the organisers of the crime. The state quite often refuses to spend adequate funds on maintaining and supervising the police services. It also applies judicial services. Under those circumstances the livelihood of the citizens and especially of the poor can become a bewildering experience. Thus, the rhetoric of social rights and poverty reduction needs to be matched with genuine policies and actions. The protection of civil and political rights must be kept alive as the bedrock of any real social security network.