ESCR Start to Catch Up

By: Nelson Camilo Sánchez León*


International human rights protection has historically faced a serious fallacy: the secondary role of economic, social, and cultural rights (ESCR) compared to those referred to as civil and political rights (CP).

At the legal level, a political dispute tied to the Cold War resulted in the creation of unfair and invidious distinctions between these rights, in which CP were considered justiciable, meaning individuals could demand them before courts, and ESCR were considered programmatic in nature, and were not given such protection in international courts and bodies.

But it is not just a question of treaties and obligations. Social discourse has assigned a meaning to the concept of human rights violations that excludes ESCR. For example, if the media reports the death of children as the result of police beatings, this news would probably be treated as a terrible human rights violation. But if the cause of death were the lack of food or water, the media would probably report the as a social calamity or an example of how unfair the world can be.

But in the end, both cases could be considered as the same: the violation of a legal commitment the State has made.

At the international level, this division between rights led to differing protection of rights within both the universal system (the UN) and regional systems (such as the OAS). For decades, activists and academics have fought against this distinction: before the United Nations, for the approval of a treaty that protects ESCR in the same way as CP; and before the OAS, for the adoption of a protocol that recognizes ESCR as rights and protects them.

These processes have begun to bear fruit. In fact, several months ago two historic events took place: human rights bodies in the UN and OAS ruled on cases that protected ESCR as true human rights, which is to say that these bodies considered two rights justiciable: the right to housing and to education.

The case in the Inter-American System is the first case in which the Inter-American Court of Human Rights ruled that a State had violated the Additional Protocol to the American Convention on Human Rights in the Area of ESCR, or the Protocol of San Salvador. This is a long-awaited decision, as the Protocol was signed in 1988 and entered into force in 1999. We had to wait 16 years for the first decisión!

In the Case of Gonzáles Lluy (TGGL) & family Vs. Ecuador, the Inter-American Court found that Ecuador had violated the right to education of a girl who was infected with HIV during a blood transfusion, and for this reason was excluded from public school. In its decision, the Court undertakes a detailed and well-crafted reconstruction of the right to education, especially with respect to those subject to special protection, such as people suffering from the stigma of HIV.

In the UN, the progress is the first individual complaint that the Committee on Economic, Social, and Cultural Rights has resolved. Only after the adoption of the Optional Protocol to the ESCR Covenant, which entered into force in May 2013, could such petitions be presented. Petitions regarding CP rights violations have been brought before the Human Rights Committee since 1976.

In the case of I.D.G. v. Spain (Communication 2/2014), the ESCR Committee protected the right to housing of a person who was evicted from her house. The Committee emphasized that ESCR are justiciable at the domestic level, and therefore a violation of due process in an executory proceeding is a violation of the right to housing.

Thus, within a few weeks of one another, there were two very good pieces of news for human rights. This, obviously, does not resolve the many challenges that we still face:

  • These are the first cases in a jurisprudence that must be consolidated. Isolated cases or one day of good luck is not enough.
  • In the Inter-American Court, the decision and the votes against it from several judges demonstrate that there is much to do to maintain these advances. For example, although the Court declared a violation of the right to education (included in the Protocol of San Salvador) it refused to consider the case as a violation of the right to health (which was the more obvious route and could be declared based on the ESCR article in the American Convention), and chose to follow its traditional line of jurisprudence that this amounted to a violation of the right to physical integrity and to life.
  • The unfinished task of all decisions is to ensure that the decision is implemented. And in this area we have many failings in both systems.

Despite these challenges, the end of 2015 can be remembered as the moment in which, although belated and partial, the international community began to catch up with ESCR.


* Nelson Camilo Sánchez León is a researcher at the Center for Law, Justice and Society (Dejusticia).