A New Champion for ESCR in the Americas

A little over a month ago, the Inter-American Commission on Human Rights announced the creation of a Special Rapporteurship on Economic, Social and Cultural Rights (ESCR). This rapporteurship will permanently work on the tasks of promoting and protecting human rights within this thematic area, and will be led by a person designated by the Commission.

The creation of this new Special Rapporteurship, which will start functioning by the end of 2015, represents progress in the region, since it is the first one on this topic. It also shows that Latin America continues to be a leader in the protections of ESCR internationally.

Nonetheless, this Rapporteurship will face numerous challenges. Some of these come from the way ESCR have been thought of historically, while others come from the current situation in the Region. Other challenges come from the Inter-American Commission’s lack of fund and the difficulty in setting a thematic agenda.

Let’s take a look at the first challenge. The rapporteurship will face the way these rights have been conceived of, both at an international and regional level. At an international level, there is a long history of debate about the relationship between ESCR and civil and political rights. For many years, people thought civil and political rights generated negative obligations for the States, justifying monitoring by a group of experts, while ESCR were thought to impose positive obligations on States, which required the adoption of legal norms and budgetary commitments. For this reason, some have argued that ESCR can only be implemented gradually, depending on the resources available to each State.

Furthermore, there is the constant tension and unequal treatment of civil and political rights and ESCR in the Inter-American System, since in the American Convention there is only one article that makes reference to ESCR (Article 26). This article refers to the duty to progressively develop these rights, without including the possibility of making them justiciable.  Similarly, at the inter-American level there is an Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, “The San Salvador Protocol,” that references the obligation to adopt measures that result in the progressive development of these rights. But this protocol only refers to the justiciability of two of these rights, the right to education and the right to unionize, establishing for these two rights the possibility of implementing a system of individual petitions.

The second challenge arises out of the current regional context. About a month ago I attended the Second Regional Consultation on ESCR in Bogota. Representatives and members of different civil society organizations from the region participated in the event. Topics such as public policies and ESCR, development with social inclusion were discussed, as well as the Rapporteurship’s thematic agenda. In a very productive discussion, where a broad number of issues were addressed, the participants highlighted certain characteristics of the region, which according to these experts, should be included in the Rapporteurship’s thematic agenda. The breadth of topics the Rapporteurship will need to cover is clearly the second challenge.

Among the noteworthy characteristics of the region are:

• The region has the highest levels of inequality in the world.
• The discrimination and dismal life conditions of groups that have historically had their rights violated, like ethnic groups, indigenous women, afro-descendants and farmers.
• The lack of decent jobs, inequality and discrimination in the labor market. There is insufficient exercise of union rights.
• Weak institutions with difficulties implementing policies related to ESCR.
• The rights of many communities affected by extractive industries.

In addition to the two main challenges, the Special Rapporteurship will have to find funding sources outside of the Commissions’ budget and it will have to work to define a thematic agenda that considers the overlap between certain issues, like social rights of indigenous peoples or afro-descendents, that may be covered by other Commission Rapporteurships, to strengthen the joint work within the Commission.

Despite these challenges, we should recognize the great advances made in the last couple of years. Now many States in the region recognize the justiciability of these rights and there have been favorable court decisions made by national tribunals. The Special Rapporteurship should not overlook these important achievements in the development of their future functions.