A/HRC/32/31
to see how they can do this effectively without some type of “higher law”
discourse of the kind captured in the idiom of fundamental rights. 36
69.
In other words, even when it appears to be marginal and best ignored, the legal
framework of recognition or non-recognition will, in practice, wield significant
influence in terms of how economic and social rights are perceived and what advocacy
opportunities are closed down or opened up. The legal framework can, at least
partially, empower or disempower and legitimize or delegitimize those who advocate
respect for economic and social rights. Thus, even those who argue that the battle over
economic and social rights will inevitably be won or lost in the political arena would
be well advised not to neglect the recognition, institutionalization and accountability
dimensions. This is not for a moment to suggest that the many other dimensions of
economic and social rights-related advocacy are unimportant. The argument is that
most, if not all, of them will be less effective if the RIA framework is not in place as a
matter of State policy.
70.
The RIA framework is no magic bullet. There are all too many examples of
situations in which clearly recognized economic and social rights, to which meaningful
accountability mechanisms attach in principle, have done little or nothing to improve
the situation. But this generally reflects a failure of will, competence or capacity,
rather than a flawed framework. Nor is the report arguing that these three steps are
all that is required or that the many other approaches that are currently being
pursued are not potentially very important.
71.
It is important to recognize that the promotion of economic and social rights as
human rights, including a particular emphasis on the elements of the RIA framework,
does not imply that there is a universal one-size-fits-all approach that will secure the
realization of economic and social rights in countries with very different histories,
legal systems, traditions and cultures. Nor does it assume that everything needs to be
done at once, or that a maximalist approach is indispensable. Strong arguments in
favour of an incremental approach to economic and social rights adjudication in
contexts in which the notion is relatively novel holds lessons for moving progressively,
and with all appropriate speed, in relation to other elements of the overall package. 37
There is immense space for the processes of “vernacularization”, or translation into
languages and forms, that are meaningful at the local level and about which various
authors have written with great insight.38
72.
One of the challenges that emerges most clearly from this analysis is that more
research is needed in order to generate a better understanding of what works and
what does not, in terms of the overall agenda for the promotion of economic and social
rights. The focus needs to be less on what governments, civil society groups and
scholars think they are best placed to do and more on what objectively needs to be
done to ensure the progressive recognition and realization of economic and social
rights.
36
37
38
See Karl Klare, “Critical perspectives on social and economic rights, democracy and separation of
powers,” in Social and Economic Rights in Theory and Practice: Critical Inquiries, Helena Alviar
García, Karl Klare and Lucy A. Williams, eds. (London, Routledge, 2015), p. 3.
See Jeff King, Judging Social Rights (Cambridge, United Kingdom, Cambridge University Press,
2016).
Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local
Justice (Chicago, University of Chicago Press, 2006).
21
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