WHAT ARE SOCIAL HUMAN RIGHTS?

By Gregor Schirmer

[This article published in: Ossietzky, 10/28/2005 is translated from the German on the World Wide Web, www.linksnet.de/artikel.php.]

Political and civil rights are usually meant when human rights and human violations are discussed in the media. Social human rights are written with small letters…

But is the alarming fact that a child dies every three seconds of the consequences of poverty and hunger a lesser crime against humanity than the genocide in Rwanda eleven years ago? The UN Security Council appointed a special tribunal for the trial of the crimes in Rwanda. Who prosecutes and condemns those responsible that more than a billion people must live from a dollar a day while the wealth in the world constantly grows? There is no tribunal for that. In the statute of the international Criminal Court, the crimes against humanity are formulated so that guilt for extreme poverty and its deadly consequences are expediently not included. Otherwise heads of government and corporate bosses would be in the dock one after the other. Is the right to food and water less important than the right to free expression?

I answer the anxious but understandable question “Do social human rights exist?” as follows: Yes, these rights exist. However a reliable mechanism for their enforcement is lacking. Social human rights are ignored and broken. Nevertheless they exist as binding norms of international laws. They represent a catalogue of demands for a socially just world. The anti-social policy prevailing in Germany is incompatible with the obligation to enforce social human rights.

Social human rights as binding demands of international law on every government first saw the light of the legal world after the victory of the anti-Hitler coalition in the Second World War. This was due to the Soviet Union and its allies, the growing influence of the states of the third world and the activities of non-governmental organizations. The capitalist industrial states still do everything to avoid commitments of social human rights binding in international law. The human rights question inevitably falls in the swirl of the system conflict. This explains the compromise character of the agreements. Since the 1989/90-epoch change to the global rule of neoliberalism, hardly any advances in realizing social human rights occurred. Still the normative level of social human rights has survived.

For the first time in the history of international law, the UN Charter codified an indefinite obligation to promote “the general respect and realization of human rights.” The Charter does not include a catalogue of these rights. That social rights are covered is clear from the Charter’s context between the human rights question on one hand and the cooperation of UN members on the other “to solve economic, social, cultural and humanitarian international problems.” (Art. 1)

The Universal Declaration of Human Rights from December 10, 1948 was a great advance on this way. Amazingly the UN General Assembly passed this historical document without a dissenting vote at a high point of the Cold War during the Berlin crisis.

Beside the political and civil rights, the Declaration proclaims economic and social rights, the right to social security, the right to work, free choice of vocation, satisfactory working conditions, protection against unemployment, an equal wage for equal work, freedom of association, the claim to relation and leisure time, “reasonable” demarcation of working hours and paid vacation. Article 25 declares: “Every person has a claim to a standard of living that guarantees health and well-being to himself and his family including food, clothing, housing, medical care and social assistance. Every person has the right to security in the case of unemployment, sickness, invalidity, disability, old age or loss of means of support through circumstances not under his control.” The Universal Declaration of Human Rights includes the right to education and the right to participate in cultural life. The property guarantee is also not lacking. A noteworthy definition can be read in Article 28. Every person has a “claim to a social and international order where the rights and freedoms cited in the Declaration can be fully realized.” That sounds almost like a human right to overcoming capitalism…

This declaration has a few hooks. It is an informal recommendation and resolution of the UN General Assembly, not a binding agreement. According to its preamble, the declaration limits its authority as “the common ideal to be promoted and reached by all people and nations.”

After a diplomatic wrestling marked by the East-West opposition, energetic arguments of the states of the third world and the influence of non-governmental organizations and personalities, the two international law agreements on human rights were passed unanimously by a resolution of the General Assembly 18 years after the Declaration of Human Rights on December 19, 1966: the pact on political and civil rights called the civil pact and the pact on economic, social and cultural rights called the social pact. Why were there two special pacts, not a single pact for all human rights? Through the artificial separation, the western states – led by the US – downgrade social rights to a minor status as “second class” rights. Social rights are not enforceable or justiciable. Compared to civil rights, their realization is much more difficult; their realization is only possible gradually and in a hardly measurable way.

This separation in two pacts does not change the fact that both kinds of human rights are of equal rank, indivisible and dependent on each other. This principle results from the UN Charter and the 1948 Declaration of Human Rights and is repeatedly confirmed in UN documents.

Advocates of a uniform pact emphasize that both pacts are connected by an identical preamble and a common Article 1, the right of self-determination of the nations is clearly formulated as a prerequisite for all human rights with the authority of international law: “All people have the right to self-determination. On the strength of this right, they decide freely over their political status and organize their economic, social and cultural development in freedom.”

The social pact came into effect two years after its passage by the General Assembly. The states took their time. West Germany joined the pact in 1973. East Germany joined in 1974. Today the pact has 150 participating states. 41 UN members including Cuba, Pakistan, Saudi Arabia, South Africa and – how macabre! – the US are lacking for universal authority.

While the rights in the civil pact obligate partner states directly and without restriction, the social pact in Article 2 contains a very problematic general clause relativizing the obligations of the contracting states. The social rights anchored in the pact are not absolutely binding. Every contracting state only obliges itself “to take measures to gradually attain the full realization of the rights recognized in this pact with all suitable means, above all through legislative measures. The realization of these rights can be evaded: the relativizing coupling to the “possibilities” of the respective contracting state (“available resources”) allowing the excuse one would like to but cannot and the “gradual” principle (“progressive”) so one can push away the realization of rights (today this principle is even reversed and social rights are gradually dismantled). In contrast, the civil pact does not contain that kind of general clause.

The social pact takes up the economic, social and cultural rights anchored in the Declaration of Human Rights and makes them norms binding in international law. In its substance, the social pact goes beyond the 1950 European Convention on Human Rights and the Charter of Basic Rights. These two documents did not earmark the human right to work. In contrast, the social pact formulates clearly: “(1) The contracting states acknowledge the right to work covering the right of every individual to the possibility of earning a living through freely chosen or accepted work and to suitable steps to protect this right. (2) The steps undertaken by a contracting state for the complete realization of this right include specialized and vocational training programs and the commitment of principles and procedures to realize a constant economic, social and cultural development and productive full employment under conditions that protect the basic political and economic freedoms of the individual.” Full employment is not envisioned through forced labor, which is expressly prohibited by Art. 8 of the civil pact.

The states merely agreed to reporting procedure on fulfillment of the rights anchored in the pact. They are obliged to present “reports about measures and advances on observing the rights acknowledged in the pact.” (Art. 16) The past reports of the Federal Republic of Germany were far removed from self-critical evaluations and were full of praise for the respective German government. The committee for economic, social and cultural rights consisting of 18 experts independent of the government “of recognized reputation in the area of human rights,” examines the state reports and reports to the economic- and social council of the UN. In its “Concluding Comments” or “Observations,” the committee comments on the state reports. The procedural order of the committee gives the right to written comment to non-governmental organizations with a consultative status at the UN. Thus the state reports can be questioned and the real situation illumined. NGOs should make use of this possibility as far as possible.

From the start in the civil pact, individual persons had a right of complaint. However no individual right of complaint existed against a violation of the social pact. This is a crucial deficiency. Since 2003, a study group has been at work in the UN that examines the possibility of granting an individual right of complaint. However no political will of most partner states of the social pact to seriously work toward that is evident. They are inventive in their excuses that all circle around the assertion that a grievance procedure is unsuited on account of the special character of economic, social and cultural rights. In reality, they want to prevent citizens from complaining about an anti-social policy of their governments to an international authority. God knows a complaint procedure will not bring about a revolutionary change. Still we should not ignore this weak instrument.

All in all, social human rights in the current international law are a weapon for everyone concerned with social justice among us and in the world, a weapon that is not especially sharp. I have no illusions. However even weak weapons must be used, particularly in times when the economically and politically powerful in many states dismantle rather than develop social human rights.