Human Rights Council Inc. (New Zealand)
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The Optional Protocol (a complaints procedure) for the International Covenant on Economic, Social and Cultural Rights due to be signed by States on September 24, 2009, will, by its exclusion of the core minimum obligations of the State from this international human rights law, permit global systematic discrimination against the most disadvantaged on the grounds of social origin (Article 2(1), International Covenant on Civil and Political Rights).
These core minimum obligations were devised by the UN Committee on Economic, Social and Cultural Rights in 1990 after neo-liberal States pursuing globalization ignored the human rights of the poor in past human rights instruments and created under classes around the world.
It is apparent that these core minimum obligations were excluded in the above Optional Protocol because they were seen by the UN and the global elites as incompatible with neo liberalism and globalization. These core minimum obligations include the right to shelter, freedom from hunger, the right to water and basic health and education and very largely affect the most disadvantaged.
It is moment of truth for the United Nations regarding the above Optional Protocol’s interpretation of the UN Covenant on Economic, Social and Cultural Rights which excludes these core minimum obligations. The UN must decide whether the Universal Declaration of Human Rights and the UN Charter are to prevail over neo liberalism and globalization or whether the latter are to be permitted to dominate which will be the case if the Optional Protocol comes into force after 10 States sign and ratify it.
While during the 25 year dominance of neo liberalism the most disadvantaged have always been discriminated against the above Optional Protocol (OP) had the opportunity to include the necessary protections - the core minimum obligations of the State – but thus far has chosen to omit them and thereby legitimizes their exclusion from international human rights law and permits the States, most of whom pursue neo liberalism and globalization, to discriminate against the most disadvantaged. If the OP comes into force this will, in my opinion, constitute global systematic discrimination against the most disadvantaged on the grounds of social origin.
In addition, the OP provides for a ‘shared responsibility’ amongst elites i.e. including the trade unions, thereby uniting the neo liberal establishment. This will allow for such systematic discrimination against the most disadvantaged to be more effective as few will ‘speak out’ on their behalf especially where it is considered this will conflict with globalization. The increased social control is seen as particularly necessary as the most disadvantaged are very likely to increase considerably in size due to the financial crisis. In New Zealand when unemployment reached ten percent in 1991, it was followed by severe benefit cuts in 1992, followed by the development of a large underclass.
Also without the empowerment rights (see below) a very dependent population much less able to help oneself or ‘speak out’ is very likely to be created.
Historically, the omission of these core minimum obligations in the OP is contrary to the spirit of this Covenant whose main purpose was to address the poor, particularly those living in extreme poverty. Peter Fraser, former Prime Minister of New Zealand, led the New Zealand delegation at the Great Debate on the Universal Declaration of Human Rights at the UN in 1948. Speaking on behalf of the New Zealand delegation was Colin Aiken, he stated: “Experience in New Zealand has taught us that the assertion of the right of personal freedom is incomplete unless it is related to the social and economic rights of the common man. There can be no difference of opinion as to the tyranny of privation and want. There is no dictator more terrible than hunger”. At the time New Zealand upset other Western liberal counties by supporting the economic, social and cultural rights championed by the East European communist countries. Franklin Roosevelt, former President of the United States, following the Great Depression, called for a second bill of rights for economic and social rights stating ‘necessitous men are not free men’ (see my recently released book, ‘Freedom from our social prisons: the rise of economic, social and cultural rights’, Lexington Books).
By allowing the omission of core minimum obligations the United Nations is permitting the prevailing neo liberal ideology and globalization to overrule the Universal Declaration of Human Rights which the United Nations have a duty to uphold under the UN Charter (Ch 1, Article 1(3)). But there can be no compromise when it comes to the core minimum obligations of the State, regarded as the bottom-line, because at this level you are dealing with the most prevalent serious violations which inflict considerable violence on people. Also, added reasons to revisit the OP even at this late stage are the food and financial crisis, which is globally creating high levels of unemployment and hunger, and the lack of dependability of the Millennium Development Goals (MDGs), which also addresses extreme poverty largely in the developing world. The MDGs are now well off track (see below). Failure to include these core minimum obligations is very likely, in my view, to lead to increased internal conflict within States and also a future backlash against human rights.
By failing to include core minimum obligations in the above OP States are able to simply focus on the economic, social and cultural rights of elite groups or those higher on the social structure and so discriminate against the most disadvantaged. I consider the neo liberal elites which dominate at the United Nations to have, by their exclusion of core minimum obligations, necessary for the proper interpretation of economic, social and cultural rights, to have manipulated the OP in their own interests and the pursuit of globalization. History reminds us that human rights are not in the service of elites but rather in the service of humanity as a whole.
The covenant on economic, social and cultural rights has long been held out by the global elites as a hope for the poor and the United Nations and global elites by excluding core minimum obligations are prepared to deny the poor this hope. The international human rights establishment generally take the view that the OP’s ‘shared responsibility’ has empowered the trade unions (see below) and this left- wing neo liberalism represents a step forward but the majority of the population has been left out (see below). If right-wing neo liberalism regains dominance and, for example, America returns to a unilateral approach, ‘shared responsibility’ could well disappear and the trade unions excluded.
By excluding the core minimum obligations, which require immediately addressing serious social problems such as homelessness, serious health problems, the right to water and ensure freedom from hunger the UN and the global elites have chosen to consider the achievement of economic, social and cultural rights as only requiring progressive achievement. Consequently if anyone makes complaints using the OP the State can simply claim to have a plan in place to deal with the problem and could conceivably continue to make such claims. However, core minimum obligations, properly interpreted, require an immediate response by States e.g. hungry children, seriously ill, and desperate people cannot wait for a ‘ten year plan’ (see below) or wait for donations i.e. liberal charity. The State can appeal to the international community if their social problems are too great but must take responsibility for any violations although circumstances may be a mitigating factor. The Preamble to the OP states:
“Recalling that each State Party to the International Covenant on Economic, Social and Cultural Rights…undertakes to take steps….with a view to achieving progressively [my underline] the full realization of the rights recognized in the Covenant….”.
Also without core minimum obligations there is virtually no limit to the size of the under class that can be created and virtually no limit to the extent their lifestyles can be reduced. With the present financial crisis we are seeing such reductions in lifestyle and very likely will see a much larger under class. It is apparent that as lifestyles deteriorate the poor will have even less access to liberal rights even though in law (see by book).
States take these human rights instruments seriously (although America has often not done so in the past - with, in my view, the tacit if not overt approval of other liberal democracies - taking a unilateral approach, relying on its own Constitution. But under Obama and ‘shared responsibility’ this has changed for the time being – see below). States often adopt these instruments in domestic human rights law and/or into State policies and so align themselves with other State elites in the ‘so-called globalized world’ (but it is an ‘elitist’ globalization rather than an ethical globalization, see below). So the exclusion of core minimum obligations, given the global dominance of neo liberalism, and the food and financial crisis and the well off track MDGs, will be far reaching in its effects. The UN’s and the dominant neo liberal elites exclusion of core minimum obligations from international human rights law was, in my view, deliberate and contrary to the spirit of the covenant by allowing States – given a ‘wide margin of appreciation’ by the UN - to deny the poor their human rights. This, especially, as it would be known how neo liberal States have overlooked the poor in past human rights instruments and also given that most countries pursue neo liberalism. The four years the open-ended working group spent devising the OP was notable for its lack of discussion on core minimum obligations (see my book below). Therefore, the omission of the core minimum obligations from international human rights law constitutes, in my view, global systematic discrimination on the grounds of social origin. While non-discrimination on the grounds of social origin is in the UN Covenant on Civil and Political Rights it is conveniently left out of the New Zealand Human Rights Act 1993 and this is also very likely to be the case in other liberal democracies. This discrimination can be likened to systematic discrimination on the grounds of race.
The Committee on the Elimination of Racial Discrimination in their Declaration on the Prevention of Genocide state that systematic violations can lead to violent conflict. The Committee states its concern is ‘….to prevent situations of persistent patterns of racial discrimination and other systematic violations of human rights [my underline] that could lead to violent conflict and genocide’ (CERD/C/66/1, 17 October 2005). In my view, the growth of the under class in New Zealand is very likely to lead to much greater ethnic violence of a criminal nature and this will most probably be the case in many other countries as well.
Complaints are permitted by the OP with respect to the exceptional cases of ‘grave and systematic violations’ (Section 11(2), Optional Protocol to the International Covenant on Economic, Social and Cultural Rights) such as systematic racial discrimination or genocide. But the globally widespread violations of core minimum obligations are ignored. However, the OP allows neo liberal States to protect the economic, social and cultural rights of the elites empowered by their ability to use the OP to complain about social injustice while the people will be kept ignorant of economic, social and cultural rights as has always been the case (see below and my book) so for beneficiaries and the under class the OP is very likely to be as ineffectual as the complaints procedures of previous UN conventions which also included economic, social and cultural (see my book). If core minimum obligations are not taken seriously at the international level then they are very unlikely to be taken seriously at the domestic level.
These core minimum obligations, which deal with extreme poverty and also associated with the under classes, have been defined by the UN Committee on Economic, Social and Cultural Rights who state that without such core minimum obligations the covenant loses its ‘raison d’etre’ (General Comment No. 3). In other words if the most serious violations, often the consequence of the extreme structural violence of neo liberalism, are overlooked then the covenant has little meaning – in fact, these rights, with the essential truths omitted, would become irrelevant and simply be essentially the privileges bestowed on groups higher up the social structure. In addition, General Comment No. 14 states: “It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations set out in paragraph 43 above, which are non-derogable [i.e. to also apply in emergencies]” (see the relevant paragraphs from General Comments No.3 and No. 14 at the end of this article)
Also excluded, in my view, are the empowerment rights to development and human rights education which I consider should also be included as core minimum obligations (although the UN Committee on Economic, Social and Cultural Rights has not done so). The most disadvantaged are discriminated against with respect to these empowerment rights – they are kept ignorant of human rights and with respect to the right to development (which also involves economic, social and cultural rights) they are prevented from making use of their talents and abilities to help themselves (and in more limited civil and political rights terms their right to liberty is severely restricted). In the past the major objection to these empowerment rights has been their inclusion of economic, social and cultural rights but in their discussions of the above OP the global elites have by a considerable majority determined that these rights have an equal status with civil and political rights so there is little reason for their exclusion but the major reason they should be included is because they allow the poor to have the necessary added dignity of being able to help themselves. Otherwise their only recognized state of being is one of dependency. Consequently the empowerment rights should also, in my view, be regarded as core minimum obligations (under the ‘bottom-up’ approach they would emphasize the core minimum obligations of both sets of rights). The empowerment rights also allow people to ‘speak the human rights language of the elite’ and therefore less likely to have their views simply dismissed. The right to development allows people ‘to follow their dreams’. It goes beyond the right to liberty of liberalism whose narrow focus on civil and political rights, strongly favors the middle class, professional sector especially in times of huge gaps between rich and poor. This means such liberty is constrained to serve this dominant neo liberal elite rather than the people as a whole. The addition of economic, social and cultural rights and most especially core minimum obligations would help ensure the latter is the case.
The empowerment rights allow people to develop from the ‘bottom-up’ making use of inner resources - intellect, new ideas, talents, risk-taking, entrepreneurship, holistic development, social conscience, experience and hard work while the poor can also often be very ‘street-wise’ and, having experienced poverty and hardship, very determined. It is such creative and innovative individuals with new ideas that take society forward. But most importantly they provide employment for those beneficiaries and the under class, who often through very little fault of their own, have had very few opportunities to develop their talents and whose holistic development may have been severely curtailed in such a very hostile neo liberal society. The right to development does not preclude a socialist, more collective, approach as an outlet for people’s talents and as a way of employing people. Also the use of microfinance has proved very effective in other parts of the world in helping people to help themselves. It is this ‘bottom-up’ approach which builds the character of the individual and the nation and takes society forward i.e. furthers its social development. If left simply to a top-down society (which the international human rights establishment certainly seems to encourage, see below) it would lead to a dependent, domesticated people, a very alienated elite all content to settle for mediocrity and the ‘easy life’ but with its attendant price of ‘arrested development’ so individuals are very unlikely ever to reach their full potential in life. While people will simply come to tolerate the injustices and sometimes extreme hardship, although much will be kept hidden, inflicted upon the most disadvantaged who make up a high percentage of those in the Mental Health and Criminal Justice Systems. While the State will increasingly ensure that the poor will be looking after the poor which is exactly what happens as the policy of individual responsibility keeps those who are unwell or with behavioral problems as far as possible within the community. The vision of a Great Country (in fact, a Great World), which is for everyone, is a very big ask but the alternative, mediocrity, is far worse, in my view. I consider the UN and the global elites have settled for even less than mediocrity with the present OP.
Human rights education would allow people to hold the human rights agenda as devised by the domestic and international elites to account at election time. There will be human rights transparency. Such education, most particularly economic, social and cultural rights, has been the greatest fear of States and the human rights establishment since the Universal Declaration of Human Rights was signed in 1948. Without such education the mass of people would not be able to use the OP to complain about any injustices – only the elites who have the necessary expertise, time and resources would be so empowered. The international human rights establishment know well that since the universal declaration of human rights was signed in 1948 the world’s people have been kept virtually completely ignorant of economic, social and cultural rights (see my book). That is a very good reason why human rights education should have been included in the OP as a core minimum obligation because individual States are very unlikely to risk isolation – it needs to be in international human rights law. Also excluded from the OP is non-retrogression, which I consider should also be regarded as a core minimum obligation, and any curbing of levels of rights (whether in domestic human rights law or not) should be subject to a high democratic standard (see my book). Although, non- retrogression, the protection of existing levels of rights, will strongly favor the status quo and the prevailing elites the people will get their opportunity at election time to eventually have economic, social and cultural rights and core minimum obligations included in human rights law. Without the inclusion of non-retrogression States are able to reduce existing human rights and lifestyles and increase the numbers of poor within the State even to the extent of violating these core minimum obligations as is likely to happen under the current financial crisis with some of the new unemployed very likely to end up in a much larger under class.
When faced with such a hostile neo liberal environment including increasing numbers of people with very little spending power means small business suffers. Small entrepreneurs, the potential employers of beneficiaries and the under class, are reluctant to take risks when the stakes for themselves and their family are so high as failure cannot be an option. The suppression and neglect of small business is like cutting off all one’s options yet continued global and/or internal stability and non-protectionism cannot be guaranteed. Core minimum obligations in international and domestic human rights law and implemented would ensure such an underclass did not exist – such under classes seemed largely absent in many liberal democracies prior to neo liberalism so it is certainly possible. Also while the equal status of both sets of rights are now recognized the UN and the global elites did not extend this to equal status of both sets of rights at the level of core minimum obligations although at this level both sets of rights are dealing with serious violence on people. The global elites by failing to stipulate this allows neo liberal States (really neo liberal elites at the UN allowing themselves) a ‘wide margin of appreciation’ to overlook the most disadvantaged.
Revisiting the above OP is given more urgency by the poor performance of the MDGs which also address extreme poverty although they target largely the developing countries. Faced with the food and financial crisis the MDGs are considerably off track in meeting their targets in 2015 particularly the goal to halve the numbers living on one dollar per day. According to United Nations statistics ‘the global recession has pushed up to 90 million more people into extreme poverty’ (Reuters, July 6, 2009) while world hunger is projected to reach an historic high in 2009 with 1.02 billion people going hungry every day, according to the UN Food and Agriculture Organization (June 22, 2009). The Millennium Development Goals Report 2009 states: “More than halfway to the 2015 deadline to achieve the Millennium Development Goals, major advances in the fight against poverty and hunger have begun to slow or even reverse as a result of the global economic and food crises, a progress report by the United Nations has found. The assessment, launched by UN Secretary-General Ban Ki-moon in Geneva, warns that, despite many successes, overall progress has been too slow for most of the targets to be met by 2015”.
The MDGs, which are not defined in human rights terms and so do not come under international law, rely on States having sufficient political will to achieve the goals. Consequently it is best described as ‘by way of charity not right’ and therefore it is not only unreliable but also an indignity especially considering the excessive focus on the Corporations has meant small business development, including the productive sector and often small farms, have been seriously suppressed and neglected and consequently the poor have been unable to help themselves. However there is still a chance of having extreme poverty dealt with under international human rights law if the excluded core minimum obligations in the OP are included. Also while the MDGs target the developing countries under international human rights law developed countries, which have large under classes, will also be included. The MDGs overlook the isolation, which can lead to very high rates of mental illness, experienced by individuals in the ‘me’ cultures ( often experienced as ‘you are in it alone’ as contrasted with the ‘we’ cultures such as found in many Asian societies) of the developed countries – this liberal ‘divide and rule’ is made far worse when individuals are socially excluded through unemployment while with little by way of family support.
As stated the core minimum obligations were devised by the UN Committee on Economic, Social and Cultural Rights and includes the right to shelter, freedom from hunger, the right to water, basic health and education (see General Comments). These core minimum obligations first appeared in General Comment No.3, the Nature of States Parties Obligations, on December 14, 1990, about one year after the collapse of communism in Eastern Europe. Russia despite its many failings in the area of civil and political rights ensured decent health, employment, education and housing for its people. The USSR, throughout the Cold War, had been the major champions of economic, social and cultural rights at the UN. This bipolar world, in my view, kept the Western liberal democracies honest – the West realized that if it did not treat the people well they could turn communist. The liberalism pursued during the Cold War involved a more balanced approach to development, while civil and political rights, assisted considerably by a good welfare system, were more accessible and alternative truths more tolerated (liberal pluralism) or at least allowed to be aired in public which is not presently the case. It would appear that core minimum obligations were introduced by the UN Committee on Economic, Social and Cultural Rights to uphold the UN Charter by protecting extreme violations of economic, social and cultural rights as there was now little support by States for these rights. But most likely to be the major reason for their introduction was the way the new neo liberal States, on a wave of euphoria following the collapse of the Soviet bloc, acted as if it had in the words of Francis Fukuyama, reached ‘the end of ideological history’ (see my book) and overruled human rights instruments ignoring the human rights of the most disadvantaged in their pursuit of globalization. And in this new unipolar world they did it because they could – there was no significant countervailing force holding them to account for such denials of liberal rights which were, are still are, able to be kept hidden (see my book). For example, affirmative action policies based on the conventions regarding non-discrimination with respect to race and women, which included economic, social and cultural rights, saw neo liberalism override these instruments and exclude the most disadvantaged – affirmative action was very largely only applied to those higher on the social scale while under classes rapidly grew around the world. But now the core minimum obligations of the State have been devised the mistakes of the past do not have to be repeated. Neo liberalism and globalization is now in confrontation with the Universal Declaration of Human Rights and the UN Charter – the question is whether the UN is up to the task because certainly the rest of the international human rights establishment seems captured by left-wing neo liberalism and globalization (see below).
Neo liberalism as it has done with the UN Charter (unless the situation can be retrieved) in relation to this OP can override national constitutions. For example, in South Africa, which now has enormous social problems, neo liberalism has overruled economic, social and cultural rights despite these rights being justiciable (amenable to judicial interpretation) and in its Constitution (however, the well known case of Grootbroom in South Africa has given some recognition to core minimum obligations, see my book). In the same way neo liberalism overruled civil and political rights, which are in the human rights law of many jurisdictions, when dealing with the most disadvantaged so obviously ‘freedom and democracy’ was not meant to apply to the latter. The relevant human rights body, the UN Human Rights Committee has not devised core minimum obligations with respect to civil and political rights so States consider they did not have to address them or the most disadvantaged. Consequently as is found to be the case with economic, social and cultural rights in the South African Constitution civil and political rights despite being in human rights law are very often inaccessible to many apart from the elites.
In the present food price crisis the inclusion of core minimum obligations in the above OP would have ensured that the hungry could have the rights to food and development as the State is ultimately responsible for human rights. Without the right to development there is no assurance the poor will be permitted to help themselves. Kanayo Nwanze, President of the International Fund for Agricultural Development states: "For most developing countries there is little doubt that investing in smallholder agriculture is the most sustainable safety net, particularly during a time of global economic crisis” (1.02 Billion People Hungry, June 19, 2009, quoted in Friends of the World Food Program).
Also in New Zealand, with a population of about 4 million and a major food producer, child hunger is also a problem (although, in my experience, starving people do not exist here). A charitable trust, KidsCan, which recently was the focus of a telethon on national television, runs a ‘Food for Kids’ program (www.kidscan.org.nz/index.html) providing free food at school for over 8,500 financially disadvantaged ‘with many schools on the waiting list’. If the core minimum obligation of freedom from hunger was included in human rights law the State would have to ensure this problem was immediately addressed. Courts would make human rights more transparent and questions would be asked about the neo liberal, globalization policies which give rise to such child hunger rather than simply ‘blaming the parents’ as a number do. Because of the relationship between poverty and hunger a recent Child Poverty Action Group report calls for the elimination of child poverty by 2020, to be achieved by a dedicated programme of cross-sectoral work toward government poverty reduction targets. It adds that the UK, with a higher rate of child poverty, has already committed to that goal and made significant progress (www.cpag.org.nz) . But ten year plans to deal with child poverty, while child hunger depends on sufficient donations, indicates the lack of vision of the present OP. Every child should be able to reach for the stars and this should not be made impossible because of the enormity of the gap between rich and poor. Certainly, as in the above cases, both a progressive and an immediate approach would be necessary to achieve economic, social and cultural rights, properly interpreted.
While Americans may get infrastructure jobs for the unemployed (the New Zealand Infrastructure Bill to improve infrastructure development is presently before parliament, August 25, 2009, NZPA) and possibly health insurance the American Dream seems under serious threat. The exclusion of the right to development in the OP also allows States to neglect small business and the dreams of many, sometimes talented people having to settle, instead, for ‘survival’ infrastructure jobs, such as sweeping the streets, or ‘bare survival’ micro-businesses e.g. lawn mowing, shoe shining, cleaning windows, stalls etc. which are likely to become more prevalent. Also, in New Zealand’s case, largely because of lack of opportunity many of those often described as the ‘best and brightest’ have left the country. There are 800,000 New Zealanders out of a population of about 4 million living overseas. Also, according to the American Small Business League the diversion of small business contracts to large Corporations presently stands at about $US66,213,800,000. The League states on its website (www.asbl.com) that Obama has failed to honor his campaign promise to stop this diversion. It also states that the U.S. Census Bureau data indicates that firms with less than 20 employees account for 90% of all U.S. firms and are responsible for more than 97% of all new jobs in America.
Also there is a very disquieting, even sinister, aspect to the approach taken by the above mentioned UN instrument/declaration which fail to include self-help – which means the poor are to be kept in a state of dependency and consequently very often unable to ‘speak out’. Anecdotal evidence in New Zealand indicates that there are many creative, talented individuals with proven ability who are not being rewarded for their work. And this strongly suggests that such independence is being actively discouraged. Even the core minimum obligations devised by the UN Committee on Economic, Social and Cultural Rights fail to include the empowerment rights. Also, for example, the MDGs do not include self-help as a goal – yet a voice for the poor would have involved extremely little cost and with sufficient political will could have been achieved in many States virtually overnight - and the OP leaves out the empowerment rights to development and human rights education. Surely it can not be the intention of the international human rights establishment to completely crush the spirit of the people. If this is the social model, supported by the Corporations, that the West wants autocratic regimes and the rest of the world to emulate then the future of the world seems ominous. The social/corporate model now advanced by the West for other countries to emulate involves a society where the establishment, which includes, as well as the State, the professional elites, the trade unions, the Corporations, the ‘so-called liberal’ mainstream media as well as very many of the ‘so-called independent’ NGOs of civil society, are pitted against the independent peoples and the most disadvantaged but this, in my opinion, will lead to increasing internal conflict within States - as seventeenth century philosopher Thomas Hobbs in the Leviathan stated: “…a Kingdom divided in itself…cannot stand”.
The interpretation of the covenant on economic, social and cultural rights by the OP, in my view, can only be described as gross social science malpractice. There certainly appears to be a lack of sociological and holistic understanding (head/heart balance), and the will and imagination to make things happen for the poor. In my experience economic, social and cultural rights, the empowerment rights and the bottom-up approach can only be fully understood by close contact with the community so when writing my book I virtual knew beforehand what the OP would exclude. Of the fourteen members, out of eighteen, on the UN Committee on Economic, Social and Cultural Rights who have provided their employment histories and qualifications there is no sociologist (the closest being an anthropologist) – the backgrounds are largely the law and political science.
My recently released book, Freedom from our social prisons: the rise of economic, social and cultural rights (Lexington Books) discusses the above OP and the ‘bottom-up’ approach to human rights which not only includes the core minimum obligations with respect to economic, social and cultural rights excluded by the OP but also considers, as stated above, there is a need for core minimum obligations with respect to civil and political rights. These are included in the ‘bottom-up’ approach. Also the empowerment rights and non-retrogression are regarded as core minimum obligations. Essentially core minimum obligations require immediate implementation while higher levels of rights can be achieved progressively. But while both sets of rights have equal status at the higher level and at the level of core minimum obligations the latter are to be immediately implemented while the former ‘equal status’ can be achieved over time. While non-retrogression protects existing levels of rights this is contingent on the immediate implementation of core minimum obligations. In other words the gap between rich and poor cannot not be allowed to get larger unless these core minimum obligations are addressed. In addition, there is a need for the two covenants to be combined as originally conceived in the early 1950s as two covenants allows for freedom to be given with one hand (Obama’s protection of civil liberties) while food is taken away with the other i.e. unemployment and the food price crisis.
In the post script to this article I seek to debate this subject on public television – a recent email from ESCR-JUST (27th August 2009) stated: “ 32,750 persons and organizations from 74 countries have added their voice to the petition in support of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights”. But would any of them in the interests of human rights transparency take me up on my challenge? Anyway it is really about truth but with respect to the ‘numbers game’ I consider the considerable majority of the world’s population, who are poor, would agree with me.
It seems apparent that core minimum obligations were excluded in the OP because they were seen as incompatible with globalization but the latter in my view is elitist i.e. an ‘elitist’ globalization (now left wing because of the ‘shared responsibility’ with the trade unions). This elitist globalization is evidenced by the big gaps between rich and poor resulting in ‘freedom and democracy’ only for elites and while liberal rights are in law few of those with minimum social justice such as a homeless person would proclaim themselves free (rather they are very dependent) and, in fact, they are increasingly disinclined to vote in a country when they feel whichever party is in power makes no difference to them (again in my book). Globalization is also a major objective of the Millennium Declaration (2000) which states: 5. “We believe that the central challenge we face today is to ensure that globalization becomes a positive force for all the world’s people”. The MDGs are based on this declaration. Yet, as stated, under the UN Charter the UN has a duty to uphold the universal declaration of human rights but it is apparent that this ‘elitist’ globalization is overruling the universal declaration. What is required is an ethical globalization (but not the ethical globalization of Mary Robinson’s ‘Realizing Rights’, see below) which will be compatible with the UN Charter. It would entail a much more balanced approach to development, and involves immediately addressing core minimum obligations at home and then, where necessary, under international law, by right not charity, help other countries to achieve their core minimums. Ensuring core minimum obligations would mean States, now with a very firm bottom line ensuring the very essential needs common to humankind are reliably met, would together with the Corporations be less able to exploit the desperation of workers to gain a competitive advantage and this would result in a more fair trading environment.
In addition, the democracy promoted by the West is an ‘elitist democracy’ because the parameters are determined by the human rights agenda, which excludes core minimum obligations. For example, none of the seven parties in New Zealand’ parliament challenge globalization publicly although privately some may be critical. Fear of isolation very effectively ensures no dissent. In addition, the ‘so-called liberal’ mainstream media follows the same agenda and, in the experience of our council, any new party considered a threat to the human rights agenda as devised by the domestic and global elites will simply be ignored. Section 5(a) of the New Zealand Human Rights Act 1993 requires the commission to educate New Zealanders in human rights, including economic, social and cultural rights, but the commission readily admits successive governments have refused to fund it. There is a duty, in a democracy, to inform people of human rights matters which are necessary for voters to know.
While the Universal Declaration of Human Rights represents a higher stage of development than the Western liberal historical legacy both are very seriously undermined by neo liberalism which in terms of implementation has also discriminated against the most disadvantaged in terms of civil and political tights. And as shown above this discrimination is now intended to extend to economic, social and cultural rights. The discrimination against the most disadvantaged on the grounds of social origin with respect to civil and political rights include: failing to give the poor a voice in the mainstream media so they can influence the democratic majority (yet this would have cost very little); failing to include non-discrimination on the grounds of social origin in domestic human rights law; failing to apply affirmative action policies for the most disadvantaged; seriously limiting the liberty of the most disadvantaged or, in other words, not allowing the poor to help themselves (also their right to development); and failing to ensure their access to liberal rights. Under neo liberalism many millions have been denied their liberal rights and reduced to powerlessness, voicelessness and discrimination but these denials of liberal rights are kept hidden (see my book).
The OP reflects an ideological shift from right wing neo liberal elitism, the Bush administration, to left wing neo liberal elitism, adopted by the Obama administration. What both approaches have in common is the exclusion of core minimum obligations as above and as defined further by the ‘bottom-up’ approach. The approach of the Obama administration is similar to that adopted by Mary Robinson, former President of Ireland and UN High Commissioner for Human Rights and Founder (2002) and President of Realizing Rights: an Ethical Approach to Globalization (www.realizingrights.org). However, in my view, the term ‘ethical’ here is a misnomer as the approach is best described as an essentially left wing neo liberal elitist approach as adopted by Obama and as devised by the global elites in the above OP. While her ethical perspective is based on trade union inclusion Mary Robinson acknowledges that the ‘vast majority of the world’s workers – including the poorest - those most in need of protection - are in the informal sector’ (Human Rights: A Global Perspective UN Global Compact U.S. Network Meeting “Business and Human Rights”, 28 April 2008, Harvard Business School). While Bush’s right wing neo liberal approach only recognized civil and political rights and was only concerned with perpetuating the dominant neo liberal middleclass, professional elite, which typically liberal democracies have revolved around, its social control involved the curbing of civil liberties sometimes very seriously e.g. Guantanamo Bay and Abu Ghraib, which lost America much legitimacy around the world. While the Obama administration intends to protect civil liberties it has taken an inclusive approach – ‘shared responsibility’ - to social control. The trade unions, which are empowered by the above OP (although because there will be no human rights education this will not empower the larger population), are included in the ‘we are all in this together’ approach, designed, as with the right wing approach, to curb ‘speaking out’ by members of a now united establishment also now able to more effectively control (and discriminate against) the most disadvantaged. The voices of the rest of the population are controlled very effectively by the ‘so-called liberal’ mainstream media which seems to regard the internet as the proper place for ‘unsafe truths’ but this does not reach the democratic majority and democracy demands that voters are informed.
Also in relation to the financial crisis it may well have had its origins in a flawed international system. The right to property was removed from its responsibilities to other rights by leaving it out of the two covenants (wrongly, in my view, as there is no reason to consider the right to property as any more important than, say, freedom of speech or children’s rights) and placed in the hands of the now IMF and World Bank which were very influential in deciding whether the private sectors of States would be socially responsible or not. And the move towards a ‘shared responsibility’ may well have deterred investors who may not have wished to share profits with the trade unions unless the latter supported the downsizing of big business leading to high global unemployment. Also during the OP discussions there was no mention of how the ideas of the world’s population could be maximized and harnessed to take the world forward rather a ‘budgeting mentality’ prevailed as if all those on a dollar a day need is a good budgeting service.
I consider a proactive approach is now very much required as the world begins to enter troubled times with its considerable social problems for which neo liberalism (left and right wing) has very few answers except greater social control to avert internal conflict. Hence the preoccupation of the neo liberal establishment with public safety is, in my view, really about the national security i.e. protecting neo liberal interests, to guard against ‘unsafe truths’ and social conflict as the underclass swells in its ranks. The international human rights establishment needs, in my view, to be far more human rights transparent. Neo liberal dominance has resulted, in my opinion, in a very elitist human rights establishment. Under neo liberalism the money does not trickle down and neither do human rights, in fact, while public property has become private property the human rights language has become the private intellectual property of the elites. For example, core minimum obligations have been largely kept hidden and such deceptions are what 19th Century liberal philosopher John Stuart Mill was referring to in his book On Liberty when he stated: “Not the violent conflict between parts of the truth, but the quiet suppression of half of it is the formidable evil”. Since 1991 when I first began promoting the universal declaration, mainly economic, social and cultural rights, I have lived in poverty and mixed with the poor. I observe an overwhelming neo liberal conformity which regards truth as irrelevant as having descended on States. Neo liberal elites seem unable to develop beyond liberalism. The most that could be expected of them is that they adhere to their liberal principles but, as previously stated, even here they have performed extremely badly. If the neo liberal elites cannot do liberalism well they are very unlikely to do economic, social and cultural rights well.
The most disadvantaged can not be allowed to be subjected to global systematic discrimination on the grounds of social origin. Consequently, the United Nations should revisit the OP and include the core minimum obligations.
If these are not included the discontented such as the anti-globalization, the non-aligned movements and disaffected States can engage in a peaceful struggle to have them included in domestic and international human rights. Within States the struggle can be pursued by more truly independent NGOs. The discontented will, in my opinion, have the Universal Declaration of Human Rights, history, the truth, the considerable majority of the world’s population and God on their side.
PS. If there is anyone in the international human rights establishment, in the interests of human rights transparency, who is prepared to debate this subject with me preferably on public television and preferably before States are due to sign the OP it can be arranged in Auckland, New Zealand. But if you prefer another venue please let me know.
General Comment No. 3:
10. On the basis of the extensive experience gained by the Committee, as well as by the body that preceded it, over a period of more than a decade of examining States parties' reports the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. Thus, for example, a State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant. If the Covenant were to be read in such a way as not to establish such a minimum core obligation, it would be largely deprived of its raison d'être. By the same token, it must be noted that any assessment as to whether a State has discharged its minimum core obligation must also take account of resource constraints applying within the country concerned. Article 2 (1) obligates each State party to take the necessary steps "to the maximum of its available resources". In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.
General Comment No.14
47. In determining which actions or omissions amount to a violation of the right to health, it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations under article 12. This follows from article 12.1, which speaks of the highest attainable standard of health, as well as from article 2.1 of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. A State which is unwilling to use the maximum of its available resources for the realization of the right to health is in violation of its obligations under article 12. If resource constraints render it impossible for a State to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above. It should be stressed, however, that a State party cannot, under any circumstances whatsoever, justify its non-compliance with the core obligations set out in paragraph 43 above [see below], which are non-derogable.
43. In General Comment No. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including essential primary health care. Read in conjunction with more contemporary instruments, such as the Programme of Action of the International Conference on Population and Development, (28) the Alma-Ata Declaration provides compelling guidance on the core obligations arising from article 12. Accordingly, in the Committee's view, these core obligations include at least the following obligations:
(a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;
(b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone;
(c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water;
(d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs;
(e) To ensure equitable distribution of all health facilities, goods and services;
(f) To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.