A/HRC/32/31
65.
Despite the rhetoric of indivisibility, both national and international
endeavours to promote and protect economic and social rights are overshadowed by
the assumption that while economic and social rights are desirable long-term social
goals, they should not be treated as full-fledged human rights. The present report is
not the place to review in detail the familiar arguments that have been invoked in
support of this approach, which include claims that economic and social rights are too
expensive, too vague, too empowering of the State, are potentially limitless, reward
and encourage laziness, penalize wealth creation, undermine economic growth and are
inimical to international competitiveness. These arguments, traditionally associated
with those who might describe themselves as libertarians, neo-conservatives, freemarketeers or small government advocates, have triumphed in many countries in the
twenty-first century and have been actively promoted by the most influential
international organizations in the fields of development, finance and trade. While
compelling counter-arguments have been put forward in response to each of the
critiques, the biggest challenge by far is essentially ideological. The economic and
political power of entrenched elites is best protected by policies that marginalize
economic and social rights.
66.
Many human rights proponents seem to prefer not to engage in these debates
for fear that doing so would be a lost cause and that economic and social rights would
be discredited or disowned rather than just marginalized or neglected. But that
strategy leads to the same result in practical terms, except that the illusion is
maintained that economic and social rights are an integral, even indivisible, part of
the overall human rights framework.
67.
The framework of legal recognition that underpins the approach adopted in the
present report by no means exhausts the range of approaches that are and should be
used in the promotion of economic and social rights. Campaigns to educate both rights
holders and professionals, empower community groups, facilitate local-level activism
or enable monitoring are all part of the expansive toolbox for economic and social
rights activism.34 As has been cautioned:
Unless all participants in [economic and social rights] litigation are conscious of
the institutional limitations of the courts and consider the possibility that the
particular claim may be more effectively addressed through another forum
such as advocacy or community mobilisation, there will be the ever-present
danger of untimely or inappropriate resort to litigation, and judgments that
impede rather than facilitate transformation.35
68.
The legal framework will influence all of these other dimensions and avenues
and it is one of the dimensions that can most meaningfully be promoted and
monitored through United Nations and related mechanisms. Put succinctly:
Contemporary movements for social change cannot avoid working in the legal
medium. There are no “law-free” zones in modern societies to which activists
can repair so as to avoid entanglement with law and system. … Legal
entitlements (including those formulated as “rights”) strongly influence the
distribution of wealth and power and partially construct identities. Social
change movements cannot avoid engagement on this terrain, and it is difficult
34
35
20
Peter Houtzager and Lucie E. White, “The long arc of pragmatic economic and social rights
advocacy”, in Stones of Hope: How African Activists Reclaim Human Rights to Challenge Global
Poverty, Lucie E. White and Jeremy Perelman, eds. (Stanford, California, Stanford University Press,
2011), p. 172.
See Sandra Liebenberg, Socio-Economic Rights: Adjudication Under a Transformative Constitution
(Claremont, Juta, 2010), pp. 77-78.
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