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Proceedings of CIDESC’s

International Conference

New University of Lisbon, 10-12 April 2008

‘Citizenship in an Enlarged Europe: the Contribution of Economic, Social

and Cultural Rights’

| Ebook available for download at www.cidesc.eu with the most recent udpates |

A Conference Organized by CIDESC (International Centre on Economic, Social and Cultural Rights) in partnership with Acevo, the

Portuguese Order of Architects and the University of Bologna’s Observatory on Microfinance.

© CIDESC 2008 | All rights reserved

With the support of:

This publication has been produced with the assistance of the European Union. The contents of this publication are solely the responsibility of CIDESC, International Centre on Economic, Social and Cultural Rights, and can in no way be taken to reflect the views of the European Union.

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CONTENTS FOREWORD Jorge Lacão, Secretary of State for the Presidency of the Counsel of Ministers

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Welcome Note Graça Almeida Rodrigues, Executive Director, CIDESC

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Keynote Address Jorge Sampaio, Former President of Porugal and UN High Representative for the Alliance of Civilizations ‘Realisation of ESCR as a Tool Towards Achieving Equal Opportunities For All’

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1. ECONOMIC, SOCIAL AND CULTURAL RIGHTS 7 Eibe Ridel, Member of the UN Committee on ESCR ‘Indicators, Bechmarks, Scoping and Assessmment’

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Malcolm Langford, University of Oslo ‘Right Place, wrong time? Right to social security in European domestic and international policy’

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Alexandra Pimenta, Portuguese Institute for Rehabilitation ‘United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol: the 21st Century Comprehensive Approach to Human Rights’

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2. THE FULFIMENT OF ESCR IN EUROPE 31 Matjaž Kovačič, Slovenian Presidency of the Council of EU; Head of the Division for International Organisations and Human Security at the Slovenia, Ministry of Foreign Affairs ‘Steps forward in the policy of human rights through the adjustment of international documents to the contemporary reality’

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Denis Huber, European Centre for Global Interdependence and Solidarity, Executive Director ‘The principle of indivisibility of Human Rights and its implementation at European level’

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Arjan Hamburger, Human Rights Ambassador at the Dutch Ministry of Foreign Affairs ‘Realising ESCR-Rights within Europe and outside Europe’

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3. ESCR & INTERNATIONAL DEVELOPMENT AID: CHALLENGES, OBSTACLES AND GOOD PRACTICE

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Regine Richter, Urgewald, Germany ‘The human rights dimension of international financial institutions’

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João José Fernandes, Oikos, Portugal ‘A Human Rights Based Approach to Development’

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Felix Kirchmeier, Friedrich Ebert Stiftung, Switzerland ‘The Right to Development as a means to realizing ESC rights worldwide’

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Keynote Address Ana Gomes, Member of the European Parliament

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4. CULTURAL RIGHTS 57 Samuel Araújo, Professor Federal University Rio de Janeiro ‘Sound praxis, political puzzles, and cultural rights; perspectives from a collaborative effort in Rio de Janeiro’

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Irene Santos & Fátima Marques, Moinho da Juventude, Portugal ‘Promoting Cultural Rights by an Empowerment Process’

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Maria Cardeira da Silva, Professor, New University of Lisbon ‘Cultures, Rights and Religions. Small contributions from ethnography to great anthropological challenges’

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5. CIVIL SOCIETY VOICES IN THE PROMOTION OF ESCR 71 Bryan Massam, Emeritus Professor - York University Toronto, Canada & and Brian Hracs, PhD student, University of Toronto, Canada ‘Places/spaces of celebration and protest: citizenship, civic conversations and the promotion of Economic, Social & Cultural Rights’

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Roselyne de Villanova, IPRAUS UMR, CNRS, France ‘‘Minorities’ participation in urban renewal: several tools for a dialogue’

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Helena Roseta, Platform on Housing Rights, Portugal ‘Civil society in promoting housing rights in Portugal’

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Luisa Brunori, University of Bologna, Italy ‘From shame to pride. The role of microcredit in developing citizenship’

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6. DEMOCRACY, CITIZENSHIP AND PARTICIPATORY GOVERNANCE 101 Lia Vasconcelos, New University of Lisbon, Portugal ‘Governance and Participation – empowering communities for justice and equity’

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Mariano Aguirre, Fundación para las Relaciones Internacionales y el Diálogo Exterior, Spain ‘States in Crisis, Democracy and Citizenship’

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Michel Doucin, Former Ambassador for Human Rights of France ‘ESCR facilitate participative democracy, but not spontaneously’

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Keynote Address Alfredo Bruto da Costa, European Committee of Social Rights, Council of Europe

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7. OPERACIONALIZATION AND VINDICATION OF ESCR 117 Martin Scheinin, Åbo Akademi University, Finland ‘Interdependence, indivisibility and interconnection between ESCR and CPR. UN “case-law”’

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Christian Courtis, International Commission of Jurists ‘Comparative experiences of justiciability of ESC rights’

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Andrzej Marian Swiatkowski, First vicepresident of the European Committee of Social Rights of the Council of Europe ‘International Monitoring Procedures of Compliance with Economic and Social Rights’

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Closing Address António Ricoca Freire, Deputy Political Director General for Multilateral Affairs in the Portuguese Ministry of Foreign Affairs

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CONFERECE CONCLUSIONS Virgínia Brás Gomes, Member of the UN Committee on ESC Rights Catarina de Albuquerque, Chairperson-Rapporteur of the UN Working Group on a Optional Protocol to the International Covenant on Economic, Social and Cultural Rights

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FOREWORD | Citizenship in an Enlarged Union |

Jorge Lacão - Secretary of State for the Presidency of the Counsel of Ministers

The topic of citizenship is of utmost importance in the context of an enlarged European Union. The added value of cultural diversity is many times perceived as an obstacle and the principles of equal opportunities, participation and cultural understanding are a strong point on the agenda. Hence the EU develops instruments to enhance awareness and the access to rights and participation. It is relevant to mention the impact of 2007 – European Year of Equal Opportunities for All which main objectives where Rights, Representation, Respect and Recognition and the commitment to include its message and objectives in EU and Member States legislation. The European Year of Intercultural Dialogue - 2008 is an excellent continuation of the work developed in the previous European Year. Its main objective is to contribute to the promotion of intercultural dialogue based on the respect for the Universal and Human Rights, as well as, to highlight the opportunities and benefits from the rich and diverse cultural heritage in order to promote a more inclusive and equal society. Also relevant to mention is the fact that the Lisbon Treaty provided the Charter of Fundamental Rights of the European Union with the same legal value of a Treaty. With this decision a strong message is being conveyed – that of a European Project based on Citizenship and Participation.

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Welcome Note

Graça Almeida Rodrigues – Executive Director, CIDESC It is my pleasure to welcome you – in particular those who came from far away - to this conference on Citizenship in an Enlarged Europe: the Contribution of Economic, Social and Cultural Rights. This is an opportunity for all of us to have a word on the society we want to build. On election day in Zimbawe, a journalist asked a man: “Are you going to vote?” The man replied, “Yes! But first, I’ll have to go and find water”. This is the essence of economic, social and cultural rights (ESC Rights). CIDESC developed from a similar experience. It took place in East Timor in 2001, when the country was governed by UNTAET, the UN agency. You did not need much previous information about the country to understand how precarious the situation there was. Anyone walking around the streets of Dili, the capital, or making a foray into the countryside, would be struck by the poverty and unrest. The official message was one of “Law and Order”, with a clear stress on political and civil rights. International organisations were present and energetic. By contrast, all around the capital, groups of unemployed, mostly young men, just stood and stared. Poverty was everywhere except for the few haunts frequented by the international community. And the question was self-evident: how can democracy be built on such abject poverty? To discuss the aim of nation-building in East Timor, a meeting was organised in June 2001 in Lisbon. In that meeting it became clear that to contribute to “Law and Order”, East Timor needed employment, healthcare and education facilities, and those rights that are embodied in the Covenant on Economic Social and Cultural Rights. So CIDESC was created. Other attempts at nation-building have taken place since: in Iraq and Afghanistan, just to name two that are present in our daily lives. At CIDESC, we would like to enter a new narrative to make human rights – all human rights – the basis for our security. The link between human rights and human security is subjacent to this project which we are now developing in two parts. One is a project with a school (Escola Secundária Leal da Câmara in Rio de Mouro) in the outskirts of Lisbon, in partnership with a cultural association called Dínamo. The pupils are identifying, in the municipality of Sintra, situations of poverty and of social precariousness (hunger, inadequate housing, no local commerce, lack of public transportation, discrimination, pollution, poor access to healthcare facilities, and disenfranchised immigrants). Each pupil will produce a text and an image of one of the situations detected, and will present it to the municipality of Sintra. Every three months they will monitor the progress of the solutions implemented. The second is this conference. We will wait for your conclusions to gauge the results of the programme that you now have with you. The two commissioners are actively engaged in the realisation of ESC Rights. Virginia Brás Gomes is a member of the UN Committee on ESCR and Catarina Albuquerque is the Chairperson-Rapporteur of the UN Working Group on an Optional Protocol to the International Covenant on Economic Social and Cultural Rights. I can’t stop myself from praising their contagious energy and commitment. I wish to thank our patrons and sponsors and all those who made this conference possible. However, without Maria Manuel Malheiros, Jorge Martins, Rossana Gonçalves, Mariana Barba, Isabel Palha, Pedro Resende and Mariana Matoso – the CIDESC team – it would not have happened. My very warm thanks to them also. Welcome to Lisbon and enjoy the Conference!

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Keynote Address | Realisation of ESCR as a Tool Towards Achieving Equal Opportunities For All

Jorge Sampaio – Former President of Portugal and United Nations High Representative for the Alliance of Civilizations

AVAILABLE SOON

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1. ECONOMIC AND SOCIAL RIGHTS Chapter Introduction

by Virgínia Brás Gomes

Before a few comments on the contents of this first panel on Economic, Social and Cultural Rights and the presentation of the panellists, it gives me great pleasure to celebrate the end of the negotiations of the text of the Optional Protocol to the Covenant on Economic, Social and Cultural Rights and express our great appreciation for the inspiring work of the Chairperson rapporteur of the working group, Catarina de Albuquerque and for the permanent support of one of our panellists, Prof. Eibe Riedel, designated by the UN Committee on Economic, Social and Cultural Rights as a resource person to the working group. What has been achieved is of major importance to the justiciability of economic, social and cultural rights and it is indeed a worthy celebration of the 60th anniversary of the Universal Declaration on Human Rights. The International Covenant on Economic, Social and Cultural Rights, that contains some of the most significant international legal provisions establishing economic, social and cultural rights, has been ratified by 157 States parties. Ratification of the Covenant implies a threefold immediate obligation for States parties:

• to take immediate measures for the materialization of the core obligations, by bringing national legislation in conformity with the Covenant, by allocating the necessary resources for their implementation and by providing the legal remedies adequate to the nature and extension of the violation of a Covenant right;

• to enable those living under its jurisdiction to exercise Covenant rights without

discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status;

• to ensure the equal right of men and women to the enjoyment of all economic,

social and cultural rights. According to Article 2.1. of the Covenant, its ratification also implies an obligation for States Parties to take steps to ensure the progressive realization of economic, social and cultural rights by developing medium and long-term policies and programmes, to the maximum of their available resources, including through international assistance and cooperation. The UN Committee on Economic, Social and Cultural Rights reiterates that in order to achieve progressively the full implementation of the Covenant, States parties must take deliberate, concrete and targeted steps within a reasonably short time after the Covenant’s entry into force. The availability of resources, although an important qualifier to the obligation to take steps does not alter the immediacy of the obligation, nor can resource constraints alone justify inaction. Even in times of severe resource constraints, States parties must protect the most disadvantaged and marginalized members or groups of society by adopting relatively low-cost targeted programmes.1

The progressive realization of Covenant rights by States parties is difficult to monitor for lack of disaggregated indicators over a medium term time frame. For example, many States parties do not have indicators that enable us to assess discrimination on the prohibited grounds referred to in Article 2.2 of the Covenant in relation to specific groups that are traditionally subject to discrimination, for example, the Roma and other minority communities, or the indigenous populations. The relevance of measurable indicators and benchmarks for States parties to monitor

1 Committee Statement on an evaluation of the obligation to take steps to the “maximum of available resources” under an optional protocol to the Covenant

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and keep track of the progressive realization of Covenant rights for persons under their jurisdiction will be illustrated by the first panellist, my Committee colleague, Prof. Eibe Riedel. In the dialogue with States parties delegations, the Committee is often given to understand that economic, social and cultural rights are constitutional aspirations, because they are not clearly focussed nor are they expressed with the clarity needed to enable States parties to establish clear and binding obligations. It is to provide such clarity and examples of binding obligations that the Committee has drafted 19 General comments on the interpretation of a number of rights, the last being the General Comment on Social Security. Economic constraints and globalisation have placed increased pressure on European welfare systems at a time when they need to actively respond to new or newly understood social inequalities. In his presentation, our second speaker, Malcolm Langford, who was a member of the core group that worked on the General Comment on the right to social security, will use the legal principles contained therein to evaluate a number of social security issues such as equal treatment, market based approaches, constrains and international cooperation. Our last speaker, Alexandra Galaz Pimenta, is the Deputy Director of the Portuguese Institute for Rehabilitation. In her presentation, she will discuss various aspects of the Convention on the Rights of Persons with Disabilities.2 The long negotiation process for its adoption as well as the relevance of this comprehensive international instrument to combat discrimination on the basis of disability and to ensure the full and equal enjoyment, by persons with disabilities, of their human rights and fundamental freedoms, will merit special attention. The general obligations of States parties as well as the relationship between the Convention and the Standard Rules on the Equalization of Opportunities for Persons with Disabilities will also be part of the discussion.

2 It has meanwhile entered into force on 3 May 2008, a little over a year after it was opened for signature and ratification.

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Indicators, Benchmarks, Scoping and Assessment

Eibe Riedel – Professor, University of Mannheim A. Improved monitoring procedure under the ICESCR

I. Introduction Under the present system of international treaty-based human rights protection, and especially under the International Covenant on Economic, Social and Cultural Rights (hereinafter ICESCR or Covenant), international accountability with regard to human rights is more or less restricted to regular and systematic assessments of progress that State Parties make with regard to implementing Covenant commitments.3 As the ICESCR just recently has witnessed first steps being taken towards an Optional Protocol establishing an individual complaints/communications mechanism – which may well become a reality in the foreseeable future –, the Covenant still lacks any legal instrument to remedy Covenant violations by State parties. Thus, improving the existing State reporting system in substance and quality is of paramount importance.4 Over the years, the Committee on Economic, Social and Cultural Rights (hereinafter CESCR) has attempted to render the State reporting mechanism more effective by defining the content and applicability of individual Covenant rights through the building of a constructive dialogue with States Parties; the adoption of Concluding Observations that stress both the positive and negative aspects concerning State Party ICESCR obligation fulfilment; highlighting factors that impede or block the realization of Covenant rights while offering suggestions, recommendations and possible follow-up measures to be dealt with in subsequent periodic reports; and the elaboration of General Comments on either specific rights or general thematic issues.5 These efforts are designed to assist States parties in complying with their reporting obligations and provide useful criteria for specialized agencies and non-governmental organizations that may be useful to guide non-governmental or civil society commentaries, rights clarifications and “civil society” or “alternative reports”. Nevertheless, the practice of State Party reporting under the Covenant also faces many difficulties. It is complicated by some States that produce qualitatively deficient reports that (a) are incomplete, (b) evade the direct answer of Committee questions, (c) only superficially address material issues, and/or (d) are dated as they refer to facts and figures long changed. To a certain extent, the unsatisfactory nature of the ICESCR State Party reporting system may also be caused by the lengthy backlog of reports pending Committee review. However, this situation is further complicated by (a) the limited resources of smaller developing states to produce initial or periodic reports; (b) countries that lack the technical expertise to draft such reports; and/or (c) countries not availing themselves of the periodic report advisory services made available by the Office of the High Commissioner for Human Rights (OHCHR). With regard to the satisfaction of Covenant reporting duties, after nine hours of dialogue between individual States Parties and the Committee, the latter formulates concluding observations and recommends specific courses of action open to the former that would assist in the realization of their ICESCR commitments. Unfortunately, States Parties often fail to implement Committee recommendations, a circumstance that will not be adequately addressed until the Committee has adopted an efficient follow-up procedure to measure compliance or non-compliance with CESCR recommendations. Presently, the CESCR is concentrating on that issue. Finally, the ICESCR State reporting system is complicated by the fact

3 For details on the system of State party reporting under international human rights treaties see W. Vandenhole: The procedures before the UN human rights treaty bodies: divergence or convergence?, 2004. 4 On 4 April 2008, the Open-Ended Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights fulfilled its mandate by adopting a Draft Optional Protocol and referring it to the Human Rights Council for consideration. 5 Thus far, the CESCR has adopted 19 General Comments. General Comment No. 20 is currently being drafted.

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that, of the now 158 States party to the Covenant, a significant proportion have either wholly declined to satisfy their reporting commitments, or are many years in arrears of same. With all this in mind, it becomes ever clearer that the state reporting procedure would greatly benefit from a monitoring tool that would substantially increase its efficiency, practicability, and transparency. To this end, CESCR has recently embraced the idea of indicator-guided monitoring and in all its General Comments since No. 14 (right to health) has proposed to engage in a four-step discussion of (a) human rights indicators; (b) nationally set benchmarks; (c) scoping; and (d) assessments.6 With regard to the first step, human rights indicators involve the State Party acceptance of relevant indicators as agreed upon through close cooperation with NGOs and relevant specialized agencies that contribute to the effective mainstreaming of human rights in their respective domains. The next step, national benchmarks, are subsequently set by States Parties which enable a differentiated approach to the vastly differing situations in which most countries find themselves. The third step, scoping, involves a discussion with the Committee of the State Party-set benchmarks, in order to arrive at a consensus about them. The previous three steps form the basis for the final assessment step that occurs during the dialogue stage between the State Party and the Committee in preparation for the drafting of the latter's Concluding Observations. The advantage of this four-step procedure lies in the truly cooperative and inter-active spirit between States Parties, the Committee, specialized agencies and NGOs wherein a more focussed and meaningful discussion can take place.

II. Practical application of the IBSA procedure

The use of the IBSA procedure in the state reporting process of the Committee has the potential of increasing substantially the work of the CESCR. Nonetheless, IBSA is not a panacea, and may (initially) require a certain amount of discipline and dedication. Committee members may even shy away from it, due to concerns that the procedure’s actual application may be too difficult in certain cases. Bearing in mind that the CESCR has already reached the limits of its capacities, the introduction of an IBSA procedure should, of course, be accompanied by as little additional workload for the Committee as possible. Ande this equally applies to States parties that feel increasingly overburdened with their reporting obligations.For this reason, the expertise of specialized agencies should be sought more intensively than up to now, to integrate their input more effectively in the work of the CESCR. The IBSA procedure may help to involve the FAO, WHO, ILO, UNESCO and other UN programmes, by assisting in the choice of indicators to be used, and advising the CESCR about the benchmarks offered by States parties, before the scoping of such benchmarks takes place. The ICESCR, in fact, foresaw such strong co-operation and inter-action in its articles 16 – 23. Thus, the specialized agencies can feed their particular expertise and readily available information into the process, by identifying suitable human rights indicators for particular economic, social and cultural rights (esc-rights), by helping in the selection and scoping of appropriate and truly relevant benchmarks, and by providing information at the monitoring stage at the end of the reporting period. The real advantage of the IBSA procedure lies in the compactness and relative simplicity of procedure. Under the present system, much uncertainty prevails. Questions are often asked for which delegations, and often also government officials in the capital, know no answer. A reliable and workable indicator list would help to focus attention on the issues that matter most, which will put the State Party and the CESCR in a position to clearly outline the degree of human rights realization in the ICESCR field. It will also mean that the entire IBSA procedure will be docked

6 Cf. E. Riedel: New bearings to the state reporting procedure: Practical ways to operationalize economic, social and cultural rights; the example of the right to health. In: Praxishandbuch UNO: die Vereinten Nationen im Lichte globaler Herausforderungen, S. von Schorlemer 2003, pp. 345 et seq..

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onto the existing written and oral components of the State reporting procedure, to which all sides are accustomed to. Moreover, this would not require any change of formal procedures, as the benchmarking would be done by the State party itself. At a later stage, of course, in conjunction with revised reporting guidelines, this procedure could be formalized. The first step – the identification of suitable and appropriate indicators – does require an additional input: here the CESCR, together with member states, specialized agencies and NGOs, must decide upon lists of indicators to be used for each of the Covenant rights.7 These lists should meet two main criteria: manageability and compatibility/flexibility. The number of indicators contained should be limited to a manageable pool of core indicators which enable the CESCR and the State party in question to focus the report at hand, yet at the same comprise indicators compatible with differing national (and regional) contexts, allowing for as much flexibility as possible. In short, the CESCR should be able and willing to use a different set of indicators for country A than for country B, considering existing discrepancies in these countries’ socio-economic situation. The task of defining the pools of indicators cannot be coupled with an existing procedural step. The closest formalized possibility might be the discussion specifically on indicators and benchmarks during a day of general discussion, in preparation for a thematic indicators/benchmarks general comment. But indicator lists might also be developed externally, and then examined on whether or not they fit the needs of the CESCR procedures. States parties would then be asked to consider these lists, along the revised guidelines, when drafting their next report. Ultimately, the selected indicator lists for specific rights might be integrated in the overall-revised guidelines, on which work is in progress. In fact, newly Revised Guidelines are likely to be adopted by the end of 2008. Once the indicator list has been accepted, either as persuasive, voluntary authority, or as formally accepted criteria, the State party can write its report accordingly. Needless to say, such lists are subject to change and later amendment, depending on increased information and data bases. The second step – the setting of benchmarks by State parties – requires active participation of member States. The State party can choose and pick from existing indicator lists the relevant targets, which it sets as benchmarks. Benchmarks are base-line measurements, measuring performance at the start of the reporting period. Movement from the benchmark indicates whether a State is meeting its obligations of progressive realization of the rights concerned. Repeated measurements can be examined over a period of time to track performance. The State party actually is assessing its own targets to be achieved during the reporting cycle. While describing the actual country situation in the State report, the member State also engages in thoughts on how an improvement of existing conditions might be achieved. This is a delicate exercise, and may often entice the State party to set benchmarks too low, in order not to have to admit at the end of the reporting cycle that targets set have not been realized, or only to a smaller extent. Such proposed state benchmarks will then be sent by the Secretariat of CESCR to the specialized agencies, requesting their comments and evaluation. Such evaluations are then taken up by the CESCR country rapporteur, and will be transmitted to the State party. This can, of course, also be carried out in direct consultations between the CESCR (Chairperson or Country Rapporteur, or other designated committee member) and the Permanent Mission of the State Party. This scoping phase of the IBSA procedure can essentially result in two alternatives: CESCR may achieve that the State party revises or amends its suggested benchmarks, e.g. if important indicators that are readily available, have not been used for the benchmarking process, or CESCR may request the State party to change its benchmarks, e.g. when the measuring rod is put too low. Ideally, such scoping takes place about 2 years before the next report id due, giving ample time to prepare the report.

7 The OHCHR has formulated proposals for indicator lists for 12 human rights from both the ICESCR and the International Covenant on Civil and Political Rights. With regard to the right to food as stipulated in article 11 of the ICESCR, the IBSA-project is currently in the process of validating at country level a list of 28 indicators compiled in consultation with the OHCHR and FAO (see below).

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The discussion of the scoped benchmarks, as reflected in the subsequent state report, and in the written answers to the list of issues to be taken up in the dialogue, will then enable exact evaluation by specialized agencies and NGOs on the first day of the session prior to the actual dialogue with the State Party delegation, and will muster additional comments from country desk officers of the OHCHR and other contributors to the monitoring process. During the constructive dialogue with the State party, Committee members will look carefully at the scoped benchmarks, and maybe suggest different or more differentiated benchmarks for the next periodic report. The advantage in this process lies in the possibility to involve specific governmental experts in the scoped benchmark issues. Five years later, the member State will submit its next periodic report, and may include in its report suggested new benchmarks, set after 2 – 3 years, to be looked at during the following reporting cycle, and the IBSA procedure begins anew. The IBSA process thus has a Janus-type appearance: it looks back, in order to assess the past reporting period; it also looks forward, in order to target future developments in the fuller realization of rights. Looking back, it may impress the State party to candidly assess for itself, why certain targets were not met, or could not be met, and this will enable the State party to set realistic new benchmarks for the next reporting period.

III. Analysis

The advantage of employing benchmarks and indicators in relation to more effective monitoring and implementation of esc-rights is self-evident: in utilizing these tools, the role of States parties in relation to variable obligations of conduct and process would be strengthened. This, in turn, would serve to further substantiate that the realization of esc-rights is universally possible within a system that fully takes into account the varying circumstances specific to the parties to the Covenant. In employing benchmarks and indicators, the Committee, as a monitoring body, would enhance its effectiveness, as it would possess a standardized procedure to substantively improve implementation of esc- rights in States parties. The other actors involved in monitoring State compliance under the ICESCR may also have a keen interest in the application of the IBSA procedure: the specialized agencies will be more involved in the assessment of the state reports. The expertise of the specialized agencies – in particular since most of them by now have adopted a human rights approach – could render the CESCR’s work much easier. In return, co-operation with the Committee may help the specialized agencies to further develop their expertise with regard to human rights monitoring, in an attempt at “mainstreaming human rights” in their work, a task that becomes more and more significant for most agencies of the UN family.8 Finally, for NGOs the use of indicators and benchmarks opens up the possibility to participate more actively in the process of State reporting, which entails a stronger involvement of civil society in the monitoring process of esc-rights. But at the same time, it must not be overlooked that, while the four-step Indicator-Benchmark-Scoping-Assessment procedure represents an attempt to render the State party reporting mechanism more effective, and easier to administer for States parties and the concerned treaty body, this cooperative procedure contains clear limits. If States Parties fail to comply with their Covenant reporting obligations, the entire procedure, just like the current one, will be in vain.

B. Elaboration of IBSA

8 Cf. A. Clapham: Mainstreaming human rights at the United Nations. - Collected courses of the Academy of European Law, 7 (1996) 2, pp. 159-234. Also A.G. Freeman: The International Labour Organisation: A case study in mainstreaming human rights, 2005; H. Charlesworth: “Not waving but drowning: gender mainstreaming and human rights in the United Nations”. In: Harvard Human Rights Journal 18 (2005) pp. 1-18; N. Jägers: “Mainstreaming human rights in international economic organisations”. IN: Netherlands quarterly of human rights 24 (2006) 2, pp. 229-270.

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It has been shown that the development of an adequate instrument to guide the monitoring work of treaty bodies, governments and civil society organisations with respect to the implementation of the right to adequate food (and other rights as well – more on that later) is a crucial task on the agenda of human rights monitoring. In 2004, the University of Mannheim – sponsored by the then-called German Federal Ministry of Consumer Protection, Food and Agriculture – was asked to contribute to the development of practical tools to monitor the progressive implementation of the right to adequate food based on the use of indicators. As this task only made sense if closely linked with reality, FIAN International was involved in this project as subcontractor to contribute with its practical experiences on the country level.

I. “IBSA 1” – defining indicators for the right to food

Under the official title “Measuring Developments in the Realization of the Right to Food by Means of Indicators: The IBSA-procedure”, the first IBSA project strictly focused on the right to food. When FIAN and the University of Mannheim started the operational phase of this project in 2004 the central aim was to identify the first of the four letters of IBSA, the indicators, which should later on serve as the foundation for the procedure’s application in the practice of monitoring.9 The idea was to keep the final list of indicators proposed as short and simple as possible, all the while formulating a measuring stick that would at least encompass the most important aspects of the right to food and its inherent obligations: the obligations to respect, to protect and fulfil. The idea also was to involve other actors with expertise on the right to food, and with a stake in the discussion on indicators and benchmarks – the FAO and OHCHR in particular –, as closely as possible, so that the outcome of the project would not be one that found itself isolated from other efforts with regard to measuring and monitoring implementation of the right to food using indicators. Fortunately, during the “IBSA 1” project it was indeed possible to bring together the different actors like the FAO and the OHCHR, as well as relevant international academic experts from all major institutions. This enabled a consensus to develop a coherent proposal for indicators that can in the future be used in both areas, in the context of the UN-Human Rights monitoring system and the FAO, in which the CESCR and the FAO will advise and encourage governments and civil society organisations to develop a good monitoring instrument for the right to adequate food. It was remarkable that such a high degree of consensus could be achieved amongst the various actors involved. To be a little more concrete, after more than one year of collecting, discussing and selecting a wide range of indicators “IBSA 1” produced a list of 37 right to food indicators, subsequently reduced,and still under revision.10 Three main categories of indicators were defined: structural – process - outcome. The following are examples from each category in order to illustrate the nature of the three types of indicators:

Structural indicator: Food safety and consumer protection legislation

Generally speaking, structural indicators measure whether or not appropriate legal, regulatory and institutional structures are in place, which are considered necessary or useful for the realisation of a human right. This refers to national law, constitutions, regulations and legal, policy frameworks and institutional organisation and mandates. Examples include: the legal status of the right to food, and of related rights such as to health and to education, mandates of institutions with responsibilities for the core content of the right to adequate food, food security and nutrition policies and strategies, etc.. Most structural indicators are qualitative in nature, and a number of structural indicators may be evaluated by a simple „yes“ or „no“ answer, e.g. whether a particular law or policy is in place or not.

9 On human rights indicators in general see S. Fukuda-Parr: Millennium development goal 8: indicators for international human rights obligations? In: Human rights quarterly 28 (2006) 4, pp. 966-997; V. Roaf et al.: Monitoring implementation of the right to water: a framework for developing indicators (2005); M. Green: What we talk about when we talk about indicators: Current approaches to human rights measurement. In: Human rights quarterly 23 (2001) 4, pp. 1062-1097; M. Kirby: Indicators for the implementation of human rights. In: J. Symonides (ed.), Human Rights: international protection, monitoring, enforcement. (2003), pp. 325-346. 10 The list has since been fine-tuned and now contains 28 indicators (see below).

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In light of this, the first example refers to the State’s obligation to protect the right to food of its citizens by preventing the consumption of unhealthy or even hazardous foodstuffs: Food safety and consumer protection legislation. Again this indicator may be dissected into sub-indicators: (a) use of the standards of the Codex Alimentarius and (b) consumer protection courts and ombudspersons. The rationale behind this indicator is the simple idea that food can only be considered adequate in line with article 11 ICESCR if it is free from adverse substances. Accordingly, the reporting state would have to put forward whether its legal system features appropriate legislation which meets and promotes international standards of consumer protection and, in particular, establishes corresponding (legal) instruments for protection. Again, marginalized and disadvantaged groups might be of particular interest here. The aim would be, of course, to optimize the States parties’ legal system via the procedure that would follow the state report.

Process indicator: Coverage of public programs on nutrition education and awareness

Process indicators provide information on the processes by which human rights are implemented, specifically through laws, policies, programmes, regulatory measures, etc. These indicators are designed to assess how, and to what degree, activities necessary to attain objectives specific to certain rights are put into practice, and the progress of these activities over time. Process indicators capture: (a) the quality of a process in terms of its adherence to the key human rights principles (is the process non-discriminatory, accountable, participatory and empowering, and can duty bearers be held accountable?), and (b) the type of policy instruments, and public resource allocations and expenditures invested to further the progressive realisation of a specific right. Accordingly, the second example refers to state activity in terms of public education and awareness: the percentage of the population which is covered by public programs on nutrition education and awareness. The rationale behind this indicator is to empower the population, by way of raising the level of education and awareness, to being a population of responsible and knowledgeable consumers who are able to choose the right alimentation and avoid adverse substances. Again, one has to look at possible sub-indicators: (a) percentage of households, schools or pupils covered, (b) total amount from public budget spent on nutrition education, or (c) percentage of public budget expended for nutrition education. In addition, disaggregation would be useful. Simply put, the reporting state would have to prove that efforts are ongoing at the national level to achieve maximum awareness among all parts of the population.

3. Outcome indicator: percentage of overnourished population

The first example is that of an outcome indicator. In general, these indicators provide summary information on the extent of the realisation of the human right in question, as they assess the status of the population’s actual enjoyment of the right. They serve as a direct measuring stick with regard to the results achieved by state policies, programmes and projects, as well as civil society efforts. Outcome indicators relate to a clearly defined content and, thus, mainly deal with the core content of the right to food.

The indicator at hand is of particular interest and has great significance for many highly-developed countries: the percentage of overnourished population. This indicator can be separated into three sub-indicators: (a) the percentage of overweight population, (b) the percentage of obese population, and (c) the prevalence of degenerative diseases caused by obesity. The rationale behind this indicator is quite obvious since malnutrition not merely relates to lack of food, yet also to over-consumption especially of food with questionable quality. Speaking in terms of obligations, this indicator refers to the states’ obligations to fulfil and protect by providing its population with access to adequate (i.e. healthy and nutritious) food while taking measures to protect consumers against ingredients and substances which have been found to cause health problems.11

11 This indicator very well demonstrates the interrelation and interdependence of human rights, in particular the right to food with the right to health.

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Applied within the IBSA-procedure, the reporting State party basically would be asked to submit to the CESCR statistical data, ideally disaggregated to all marginalized and disadvantaged groups within the population. The submitted numbers would then represent the starting point for benchmarking and scoping with regard to the subsequent reporting period.

Indeed, all three examples prove that implementing the right to food is not only a matter associated with poor developing countries.

II. “IBSA 2” - country piloting setting the table for practice application

Based on the success and the results of “IBSA 1” the two project partners agreed that it would be essential for any realization of the IBSA procedure in practice to continue the work which had been started in 2004. The second IBSA project is set for two years (until August 2009) and goes by the title of ‘Practical application of Indicators and Benchmarks for national and international Human Rights monitoring with particular reference to the Right to Food’ and is intended to mainly serve a double purpose: (1) Test the practical application of the now 28 indicators for the right to food selected during

“IBSA 1” on the ground in three countries representing different world regions and economic conditions: Ghana, Colombia and Spain. Ideally, the test phase in these countries will provide a role model for more in-country testing in other parts of the world.

(2) Instruct the CESCR on how to incorporate the IBSA procedure into its regular work, by

using the right to food as a starting point. The aim would be to integrate an indicator matrix12 into the regular procedures of the CESCR, or any other potential successor institution should a substantial reform of the UN Treaty Body system occur.

In short, “IBSA 2” features two modules that should help bring the whole procedure to life in the actual human rights monitoring practice:

Module 1: Practical application of Indicators for the Right to Food Module 2: Implementation of the IBSA-Procedure

Each of the modules has specific tasks and a certain desired outcome. The following will give a brief overview.

Module 1

Tasks: (1) Test the practical applicability of the indicator list at the country level (2) Improve/optimize the indicator matrix

(3) Develop a handbook for the use of the IBSA-indicator-matrix The desired outcome would particularly be to document the experiences and lessons learned from each country study in order to utilize them as part of the ongoing refinement of the indicator list. As far as the handbook is concerned, the objective will be to produce a tool kit which would enable both government institutions and civil society organisations to apply the indicator matrix coherently and effectively. Ideally, the application of the indicators would become a routine for these actors. Finally, the project intends to further promote the integration of a rights-based approach into the FAO system of monitoring with respect to the food situation worldwide.

12 See Annex.

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Module 2

Task: Drafting of a General Comment on the use of the IBSA-procedure for monitoring of esc-rights in general.

The purpose of drafting a General Comment will be to serve as orientation on how to apply the IBSA procedure generally in the process of State reporting under the ICESCR. The comment will instruct States parties to the Covenant as to - what kind of indicators qualify for use in the IBSA procedure, - how these indicators are to be conceived methodologically and conceptually, - which are the criteria for the setting of benchmarks by the states as well as for the

evaluation (scoping) of such benchmarks by CESCR in consultation with UN Special Agencies and NGOs and

- how CESCR will conduct the assessment part of the procedure. Although the right to food will be the starting point for the General Comment and have an exemplary function within that context, the General Comment should go beyond this particular right and facilitate the application of the IBSA procedure with regard to all other esc-rights (and maybe even other rights as well). The quality and efficiency of monitoring would be afforded the opportunity to reach new heights, and thus be able to improve its contribution to the protection of human rights worldwide. Also, human rights monitoring at the regional and national level could greatly benefit from the existence of this General Comment, as it would not be the first one of its kind, for instance, to influence regional or national jurisprudence.

Project phases

The most important phase will naturally be the first, the country test phase, as it lays the (empirical) foundation for the succeeding phases. This phase is currently under way in the three pilot countries. A national human rights expert in each country is coordinating the testing. As far as the modus operandi is concerned, one of the main tasks the national experts are facing is involving all relevant state institutions and civil society actors in the testing process. The central idea here is to find out whether the indicators are practicable in general and applicable in the concrete national, i.e. political, economic and social context, and whether some of the indicators need modification, or should be abandoned altogether. After completion of the test phase its findings and results will be presented and examined at an expert workshop bringing together the national experts with the project partners and other international experts. This workshop will take place at the University of Mannheim on 6 and 7 October 2008. Beginning right after the workshop, the next project phase will see the drafting of an Handbook on Voluntary Guideline 17 in Module 1 and the General Comment. All of these efforts will take into consideration the findings and results of the test phase and the workshop, and will be carried out in close consultation with the FAO (Handbook) and the CESCR (GC, contribution to the Reporting Guidelines). The Draft General Comment, in particular, is planned to be introduced in the Committee at the earliest possible date.13 The drafting process will conclude with a larger conference in Berlin at the end of May 2009, right after the 42nd session of CESCR, where all results of the project will be presented in front of high-level experts including government representatives.

C. Conclusion

At the end of the project phases outlined above, it may seem advisable to conduct further and expanded country testing bearing in mind the experiences gained from the initial country piloting.

13 Ideally, the draft would informally be presented at the 42nd session of CESCR in May 2009, followed by a General Day of Discussion at the 43rd session in November 2009 and adoption of the General Comment at the 44th session in May 2010.

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Subsequently, the IBSA procedure could be gradually channelled into the State reporting procedure, and maybe extended to other esc-rights. Ultimately, the IBSA procedure could be developed into a training module for State officials entrusted with the reporting, and could further contribute to the mainstreaming of the rights-based approach in international organizations (such as ILO, WHO, FAO, UNESCO, WTO), and other UN programmes. The IBSA procedure may considerably develop the monitoring practice of the CESCR, and if successful, may well be tried out in other human rights treaty bodies. Its main advantages lie in the voluntary participatory setting of benchmarks by the States parties, thus not necessitating any normative amendments, and it would be coupled with a more focussed approach of the CESCR in monitoring State compliance with ICESCR obligations.

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Annex: IBSA indicator matr

Adequacy

Accessibility

Aspect of the right to food

Category of Indicators

Satisfaction of dietary needs

Food Safety (free from adv.

substances)

Cultural Acceptability

Availability

(Sustainable supply of adequate food) Physical

Economic Non-Dis-crimination

Information

- Legal recognition of the right to adequate food and related rights - Independent national Human rights institutions working on esc-rights - Procedural mechanisms to provide adequate, effective and prompt remedies - National strategy on implementing the right to food - Program for disaster management Structural

Indicators - Food safety and consumer protection legislation - Instruments to ensure cultural or traditional food use and nutrition - Nutrition and nutrition adequacy legislation

- Mechanisms to guarantee a functioning market system - National policy on agricultural production

- Protection and enhancement of access to land - Protection of labour conditions and enhancement of access to labour

- Number of right to food related complaints filed, investigated and adjudicated in courts and other relevant institutions - Percentage of claimants in right to food related claims benefiting from legal aid - Percentage of state personnel dealing with right to food-related issues not having received education in esc-rights (in particular the right to food)

Process Indicators

- Percentage of population covered by public programs on nutrition education and awareness

- Percentage of food aid produced from domestic sources

- Proportion of persons belonging to vulnerable groups

covered by social safety net programs

- Estimate of access of women and girls child to adequate food within household - Coverage of programs to guarantee access to land

- Percentage of malnourished population (undernutrition) - Proportion of population without sustainable access to an improved water source

Outcome Indicators

- Percentage of malnourished population with a (deficiency in micronutrients) - Percentage of malnourished population (overnutrition) - Proportion of population without access to improved sanitation

- Percentage of per capita available food from

domestic production, net food imports and

food-aid

- Percentage of population lacking access to land - Percentage of population living in poverty and extreme poverty

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Right Place, wrong time? Right to Social Security in

European Domestic and International Policy

Malcolm Langford – University of Oslo

1. Introduction

The normative forces of globalisation have often cast the European welfare state14 in a negative light.15 Since the 1980s, high levels of social protection on the European continent have been associated with sclerotic economic growth and employment. In contrast, the United States economy with leaner public spending has performed seemingly well on macroeconomic indicators. The political renaissance of neoclassical policy prescriptions in the so-called Washington consensus has ridden far on the back of this trans-Atlantic comparison. The confidence generated by it has even extended to advocating private provision of many social goods, including social security, despite the fact many social services are provided publicly in the United States. Concurrently, the realities of globalisation has revealed new demands for greater social protection in Europe. This is particularly evident in both short and long-term structural unemployment that has been caused by decline in the manufacturing and, to a lesser extent, agricultural sectors in the face of increased international competition. Globalisation is not alone though in stimulating greater demands for social protection. The ageing population is more pronounced creating shrinking old age dependency ratios and more pressure on pension systems. Although given that the causes of higher ageing are diverse – a combination of low migration, lack of fertility incentives and low retirement ages –there is clear economic space in which to manoeuvre. Greater demands for gender equality in pensions and the workforce have also stimulated an increased focus on the structure of pension points and maternity leave while increasing awareness of the needs of persons with disabilities, long-term unemployed, the homeless and refugees and asylum seekers, consequentially leading to more concern about the fairness of European welfare systems. European social security systems are thus being pulled in two different directions, a trend particularly pronounced in Eastern Europe, with competing calls for contraction and expansion. However, the neoliberal ‘pull’ for slim welfare states on economic grounds is not necessarily supported by the empirical evidence. Indeed, a casual observation of Scandinavian states, with their high levels of welfare and economic growth indicates the fallacy of the generalised position. Mares’ (2007) review of empirical literature measuring the relationship between social protection/ taxation on one hand with growth/ employment on the other finds a “fragile” and inconclusive relationship. According to Mares, “there is considerable evidence that social programmes provide a wide range of ‘positive externalities” which outweigh the potential distortionary effects of higher taxes. Similar conclusions were reached by an ILO team dispatched to answer the question (Cichon, Scholz et al, 2004). In essence, the review indicates that it is often the shape not the size of the welfare state that influences the relationship. For instance, centralised wage fixation systems tend to moderate wage growth in the face of promised social policy improvements and curiously, high replacement ratios for unemployment benefits can create incentives for employers to provide on-job training. Human rights are more concerned with the ‘push’ factors – the need for effective social protection. The ‘pull’ factors are of course taken into account in social rights discourse and law, such as ‘maximum available resources’ and space for governments to decide on appropriate and reasonable policy options. However, the human right to social security in particular has received comparatively little attention compared to many rights even though it is perhaps the only right to be mentioned

14 The ‘European welfare state’ is a construct that only works in an aggregate comparison to the United States and Japan for ‘as soon as one starts to look at the criteria for benefit entitlement, the nature and level of benefits, the methods of financing or the decision-making and management authorities, the idea of a European model withers away’ (Zimmermann (2006:41). 15 For discussion of the difference between the normative and descriptive nature of globalization, see UNDP (1997: 82).

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twice in the Universal Declaration of Human Rights. When reference has been made, it was often rhetorical or assumed to simply represent the approach embodied in ILO Conventions. This paper therefore provides an overview of the human right to social security in Section 2 and briefly analyses in Section 3 some of the challenges it poses for current European policies both domestically and internationally.

2. Human right to social security

The last decade has witnessed a growing attention to the right to social security in terms of content and strategy. In 2001, the International Labour Conference, composed of States, employers, and workers, affirmed that social security is a ‘basic human right and a fundamental means for creating social cohesion.16. Worker’s representatives at the conference highlighted that the individualised nature of the right to social security, which meant that pension systems that linked women’s entitlements to discriminatory labour markets or a spouse’s entitlement should be re-examined to ensure conformity with the principle of non-discrimination, inherent in the right to social security. An NGO participant asserted that individual savings accounts for social security should not be used since ‘the great majority of low-paid workers in precarious employment’ would be excluded, a result inconsistent with the right to social security In January 2008, the UN Committee on Economic, Social and Cultural Rights released General Comment No. 19 on the Right to Social Security in the International Covenant on Economic, Social and Cultural Rights (ICESCR).17 The comment embraces both contributory and non-contributory schemes under the umbrella of social security, with a strong focus on ensuring an adequate level of protection against social risks and contingencies.18 The Committee partly adopts the ILO approach in defining the ‘supply side’ of social security as set out in ILO Convention 102 – a system must be established and supervised by the State and the nine classical benefits should be available.19 However, the Committee avoided a quantitative approach to accessibility but instead relied on its standard jurisprudential principles in this area. Benefits should thus be ‘adequate’ – loosely linked to an adequate standard of living – and coverage should be ‘universal’. These absolute demands are tempered by the imperfect duties which States have under the ICESCR to only take steps towards this end within maximum available resources. However, a minimum core obligation requires States to ensure a minimum level of benefits for all, or at least a core group of benefits, together with a duty to progressively improve the situation. The Committee also spends much time emphasising the importance of eliminating discrimination in social security and establishing effective mechanisms for monitoring and accountability. The approach by the European Committee on Social Rights is partly different (see Khalfan and Churchill, 2008). The ILO Convention is explicitly built into the European Social Charter, while the more demanding European Code of Social Security is incorporated into the Revised European Social Charter. ILO Convention 102, which is not widely ratified, has had more influence at the European level through incorporation in the Charter. The European Committee on Social Rights which oversees both Charters has generally eschewed normative statements like the UN Committee but its regular periodic review reveal a fairly consistent pattern of reasoning and level of detail. The Committee closely examines compliance with ILO Convention 102 and appears particularly exacting when it comes to the adequacy of benefits. For instance, they concluded that ‘Ireland is not in conformity with article 12(1) of the Revised Charter on the ground that sickness benefits and the unemployment benefits are manifestly inadequate”.20 The Committee had previously defined that social security benefits must be adequate and thus must be fixed in reasonable proportion to

16 Resolutions and Conclusions concerning social security, International Labour Conference, 89th Session, 2001. 17 Thirty-ninth session, 5-23 November 200, 7UN doc. E/C.12/GC/19, 4 February 2008 18 Broader issues of social protection and social services beyond the identified risk and contingencies are dealt with under

other rights: see para. 12. 19 Ibid. para. 10a. 20 European Committee on Social Rights, Conclusions 2006 (Ireland), p.16.

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previous income and never fall below the poverty threshold.21 In this case both benefits stood at 566 euros per month which were below the level of the poverty threshold of 747.50 euros in 2004. It The Committee has also criticised Danish eligibility criteria where reforms were considered to virtually compel ‘unemployed persons on pain of loss of benefits to accept a job regardless of the occupational field from the first day of unemployment.’22 The European Committee has closely followed the situation of non-nationals who often face discrimination in European States. While the Charters partly limit the obligation of States towards non-nationals, the Committee has closely examined residential requirements for social security, found direct and indirect discrimination in access and in the case of FIDH v France, Complaint No. 14/2003, found that undocumented migrants had the right to basic health care. The UN Committee tends to be less quantitative, although in the case of Canada in 2006, it urged the State to ‘officially establish a poverty line and to establish social assistance at levels’ consistent with an adequate standard of living. 23 The Committee has tended to closely examine countries without a national social security system (including developed countries), a failure to cover certain benefits, the universality in the level of coverage and eligibility criteria and physical accessibility (Langford and King, 2008). In the case of the latter, the United Kingdom, the Committee found it ‘disturbing that approximately 1 million persons do not apply for benefits to which they are entitled’24 while Serbia and Montenegro were reprimanded for legislation that permitted suspension of social security rights of essential services workers who went on strike.25 Equal access by women and disadvantaged groups has also been a strong theme. In the case of Austria in 1994, the Committee noted that ‘despite the considerable legislative efforts’ that sometimes ‘inequality persists in practice’ in the provision of social security benefits and that authorities ‘should continue their efforts to ensure de facto equality between men and women’.26 In 2006, it noted in dismay the new Law on the Harmonization of Pensions which took ‘the entire professional career as the basis for calculating old-age pension benefits’.27 With Belgium, it instead welcomed a process to ensure greater equality in pension outcomes.28 The right to social security is not included in the European Convention on Human Rights but it has been addressed in a number of cases. In Müller v. Austria, the former European Commission of Human Rights held that social insurance constitutes ‘property’ (contingent upon the applicant showing a sufficient link between the contributions and the benefit and the existence of a right to an identifiable payment) and is therefore protected by the right to the peaceful enjoyment of possessions.29 In Gaygusuz v. Austria, the European Court of Human Rights widened the scope of this right to possessions by finding that social assistance entitlements under a statute-based scheme amounted to property for the purposes of applying the article on non-discrimination.30 Similarly, the Court has found that the right to a fair trial on the determination of civil rights encompasses social security benefits set out in national legislation.31

21 Defined as 50 per cent of median equivalised income and as calculated on the basis of the Eurostat at-risk-of-poverty threshold value. 22 Conclusions XVII-1, Denmark, p. 17. 23 Concluding Observations of CESCR: Canada UN Doc. E/C.12/CAN/CO/4-E/C.12/CAN/CO/5 (2006), see paras. 60,55, 54 and 62. 24 Conclusions and recommendations of CESCR: United Kingdom of Great Britain and Northern Ireland, U.N. Doc. E/C.12/1/Add.19 (1997). 25 Conclusions: Serbia and Montenegro (n. 92 above), para. 19. 26 Conclusions and recommendations of CESCR: Austria, U.N. Doc.E/C.12/1994/16 (1994), paras. 12, 16. 27 Conclusions and recommendations of CESCR: Austria, U.N. Doc. E/C.12/AUT/CO/3 (2006), para. 25. 28 Conclusions and recommendations of CESCR: Belgium, U.N. Doc. E/C.12/1994/7 (1994), para. 7. 29 App. 5849/72, Müller v. Austria, 16 Dec. 1974, (1975) 1 Dr 46. Article 1 of the Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 262, entered into force: 18 May 1954, states in part that “[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions”. The German Federal Constitutional Court has also endorsed the link between property and social insurance; see Tomandl (1994). 30 Gaygusuz v. Austria, ECHR, 16 Sept. 1996 (39/1995/545/631). For an analysis of the judgment, see Scheinin and Krause (1997). 31 See Salesi v. Italy, [1993] IIHRL 18 (26 Feb. 1993); Schuler-Zgraggen v. Switzerland [1993] IIHRL 48 (24 June 1993).

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The European Court of Justice has addressed rights of non-national and women to social security (Watson, 2008). In Kohll32 and Geraerts-Smits and Peerbooms33 the Court held that the right to provide and receive cross-border services within the European Union precluded the requirement that non-nationals need to obtain prior authorisation from their home authorities in order to access health schemes. The court has also applied the Equal Pay Directive of 1975, Equal Opportunities Directive 1976 and the Equal Treatment in Social Security Directive 1979 in the field of social security to ensure greater access to equal benefits for men and women (Luckhaus, 2000; Watson, 2008). However, its approach is more formalistic than substantive and has not tackled the broader issues of why women may make less contributions and accepts equalizing down men’s benefits in order to achieve gender parity (Langford, 2007).

3. Some European challenges

Scrutiny by European, international and human rights bodies can provide a measure of accountability but national accountability mechanisms and political action are more important in addressing many of the social security challenges Europe faces. This Section will look briefly at some social security challenges in the context of the rights of women and ethnic minorities, social security reforms and international development policy. However, the possibility for more positive European level action has certainly not been exhausted. The European Commission has encouraged the Member States to use the Open Method of Coordination (OMC) where high-level groups of national civil servants can co-ordinate the operation of national social security systems (European Union, 2006). However, involvement of civil society in forums on cross-border use of health care services for example has been minimal and “issues raised by women and ethnic groups are not addressed fully, if at all” (Szyszczak, 2007). Galasso (2007) also suggests it is likely that a European pension policy may be the only way forward for pension reform as unpopular decisions at the national level would be foisted on the European Union. However, some methods to improve viability of pension schemes are, on their face, more compatible with human rights than others (i.e., increased migration versus cuts in defined benefits, particularly for poorer retirees). From a human rights perspective, the treatment of women and minorities represents a significant concern as well as treatment of non-nationals.34 While some European states have made great strides in addressing substantive gender inequality outcomes in social security systems, others have hardly moved at all. As the above discussion on pensions highlighted, many pension and social protection schemes in Europe are tied to the labour market, which “immediately disadvantages women who may have lesser attachment to the paid labour market since their working lives are interrupted by maternity and family caring responsibilities and they may earn wages below the qualifying thresholds for insurance-related benefits” (Szyszczak, 2007). Further, maternity leave benefits in many Southern European countries are paltry while in countries like Germany they have focused on permitting long extended absences from the workforce, which often discourages workforce participation at a later stage after childbirth and depresses social security outcomes. Germany though is perhaps a good example of a country that has tried to shift gear by recently embracing the Scandinavian model of a year’s maternity benefits with a high income replacement level up to a certain limit. However, the prized Scandinavian model, with its voluntary option for men to take some of the leave, does not necessarily support ideal equality outcomes given the still significant interruption in women’s career paths. Iceland’s system of each parent receiving three months of non-transferable leave each (with a further three joint months to be divided as couples wish) appears to be partly responsible for considerable successful outcomes in gender equality, including reduction in the gender wage gap (Gíslason, 2007).35

32 [1998] ECR I-1931. 33 [2001] ECR I-5473. 34 On non-nationals see for example, Bolderson (2007) and Vonk (2001). 35 Sweden howeve is introducing incentives with a new tax break for fathers that stay home: http://www.nrk.no/nyheter/1.4954972

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Long-standing minorities such as Roma and Travellers, face particularly challenges with European social security systems amongst systematic exclusion from access to many other social goods. In Slovakia, social reforms in 2004 meant that many Roma struggle to pay rent and other basic costs and faced forced eviction, a factor which contributed to a sinister practice of local authorities of moving Roma out of town centres to segregated sub-standard housing on urban peripheries (see Milan Šimečka Foundation, COHRE, ERRC, 2007). Many of the restrictions on access to social benefits in the new law, such as size of family, arguably constitute indirect discrimination against Roma. At the same time, the rental costs in social housing for Roma are close to the average housing costs for the wider population. In Bulgaria, indirect discrimination often works through the system of budget allocations. All municipalities are provided the same amount of funding and according to local human rights activists, poorer municipalities are starved of funds by April, resulting in groups like which face discrimination in the labour market such a Roma being deprived of social security benefits for up to eight months a year (Mihalova, 2007). The problem is certainly not confined to Eastern Europe. In Spain, a survey conducted by the Ministry of Labour and Social Affairs found that the standard of living for the approximately 70,000 Roma who have lived in the country for 500 years was perilously low (Burnett, 2007). In response the Government announced that a new law would ensure that the self-employed, and Roma predominately fall in this category, could both pay and claim social security benefits.” Marginalised groups and low-income earners are often the first to suffer in periods of social security reforms. Thus far, Western Europe has not embarked on the holy grail of social security reform, the privatisation of pensions, although the ILO (2006: 21) notes that many of the current parametric reforms to pensions may lead to the same or even worse results. Under the strong influence of the World Bank and the IMF in the 1990s, a number of Eastern European countries however privatised or part/privatized their socials security systems. Müller (2004:80-81) describes the process in Hungary:

While it’s early advice had been limited to reforms within the existing PAYG scheme, the Bank’s campaign for pension privatisation in the region started at a seminar in late 1993, where most Hungarian experts rejected the plan. After the release of the Bank’s 1994 report, its pension reform recommendations to the Hungarian turned more explicit. It advocated a ‘systemic change, involving splitting the current single public scheme into two mandatory pillars - a flat citizen’s pension and a … full funded [private] second tier. It was argued that the existing public PAYG scheme was financially unviable and ‘could explode’ in the next decade. At the request of the Ministry of Finance, the Bank’s Budapest office became directly involved in the Hungarian pension reform around 1995.

Some countries such as Kazakhstan fully substituted their Pay-As-You-Go public system for a fully private system while Hungary, Poland, Latvia, Bulgaria, Croatia and Estonia amongst others introduced a mixed approach. While the effect of pension reforms requires some time to evaluate due to their long-term horizon, they have been criticized (see overview of studies in ILO, 2006: 20). The World Bank’s own Independent Evaluation Office pointedly noted that “There is little evidence that privately funded pillars have succeeded in increasing national savings” and that “the Bank’s preoccupation with fiscal sustainability tended to obscure the broader goal of pension policy, that is, to reduce poverty and improve retirement income adequacy within a fiscal restraint” (World Bank, 2005: xvi, xvii). Almost every country in Europe has experimented with a range of other reforms across the entire social security system in order to improve the financial sustainability of schemes and/or economic growth and competitiveness outcomes – an agenda which partly has its origins in the Social Agenda adopted by the European Council in Nice in 2000 and affirmed in 2005 Lisbon Agenda (See Zimmermann, 2006 and Bedard, 2005). In the field of employment-related social security, reforms often involve reducing or halting increases in the level of real benefits, tightening eligibility criteria, placing strict obligations on the unemployed to find work and accept job offers and reducing employer contributions. The results can sometimes be sensational – as with the German case where a job seeker, under the Hartz IV reforms, was required to work in brothel that was registered with a

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labour market scheme, or face risk losing social security benefits. Bedard (2006) notes that the new employment activation schemes in many European countries should have benefited Roma and Travellers who face systemic difficulties in entering formal labour markets. However, their review of implementation found social workers almost wholly focused on finding fraudulent claims as opposed to pro-active and appropriate attempt to help Roma find employment, which often recognition of their unrecognized informal skills and addresses employer discrimination. Khaliq and Churchill (2008) note that the European Committee on Social Rights has scrutinized such reforms. In the case of Poland, which claimed strict social security measures were critical for economic growth, the Committee requested further information to allow it to evaluate the appropriateness of the measures taken in relation to the objective pursued.36 In the case of Denmark, eligibility criteria was found to be in breach as discussed above. What is most critical is that there are national institutions and processes to assess what the UN Committee on Economic, Social and Cultural Rights calls the prima facie prohibition of retrogressive measures: “any deliberately retrogressive measures … would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources”.37 Some European constitutional courts have adopted a similar approach. In Portugal, the Court held that a decision to increase the qualifying age of a minimum income benefit was a retrogressive step violating the right to social security.38 In Hungary, however, the Court has been shy of applying constitutional social rights beyond principles of non-discrimination or ensuring minimum but opted to rely on property rights in finding that the sudden introduction of social security reforms violated the legitimate expectations of those who made family and other plans based certain benefits being available.39 Courts are not necessarily the ideal way in which to address retrogression concerns, particularly given the speed in which they are sometimes introduced. Official mechanisms used in advance to assess human rights are often preferable, as is social mobilisation and civil society organisation. Contrary to many views, the best protected with social security are often the most organised (civil servants) while those most vulnerable (casual workers, minorities, low-income women) are often the least organised.

International development cooperation policies of the European Union and European countries surprisingly give little emphasis to social security. This even applies to Scandinavian countries that pride themselves on their social welfare model. Arguably, European countries along with the United States have contributed more to undermining the development of social security systems in the South through structural adjustment policies pursued by the international financial institutions which these countries control. As far as back as 1991 the UN Committee on Economic, Social and Cultural Rights cautioned these institutions on the effects of these policies on the poor40 and country concluding observations of the Committee have ever since noted the difficulties that have been imposed on developing countries by these policies. In 1999, they stated in relation to Cameroon:

The Committee notes that the Government's economic reform programme for 1998/99, which implemented the structural adjustment programme in Cameroon approved by the International Monetary Fund, the World Bank and the Caisse française de développement, while increasing the real GDP growth rate has impacted negatively on the enjoyment of

36 Conclusions XVI-2, Poland, p. 542. 37 General Comment No. 3, The nature of States parties' obligations, (Fifth session, 1990), U.N. Doc. E/1991/23, annex III at 86 (1991),, para. 9. 38 Portuguese Constitutional Tribunal, Decision (Acórdão) Nº 509/2002, December 19, 2002, quoted in International Commission of Jurists (2008). 39 Decision 43/1995: 30 June 1995. 40 Committee on Economic, Social and Cultural Rights, General Comment 2, International technical assistance measures (Fourth session, 1990), U.N. Doc. E/1990/23, annex III at 86 (1990), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 11 (2003), para. 6.

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economic, social and cultural rights by increasing poverty and unemployment, worsening income distribution and causing the collapse of social services.41

Today’s development agenda is more focused on the Millennium Development Goals agenda with its greater focus on poverty eradication: According to the European Union, “The overarching objective of the DCI is to help eradicate poverty in partner countries and regions. It is guided by the pursuit of the (MDGs), and serves to promote democracy, good governance and respect for human rights and the rule of law.”42 The European Union (2005) in its report to the UN High Level Event on the MDGs noted that it was world’s biggest donor and major trading partner’ but in the many listed projects and areas of budget support, social security never features. Part of the problem is that the Millennium Development Goals provide little focus on social security; Goal 1 is principally focused on income poverty with economic growth often seen as the principal means for this realisation (see OHCHR, 2008). However, European development agencies through the OECD in particular were largely responsible for designing the Millennium Development Goals.

This all comes at a time where there is ever-growing empirical research demonstrating that almost all countries can afford a basic social security system (see Gassmann, F. and C. Behrendt, 2006; and Mizunoya Behrendt, Pal, and Léger, 2006). The ILO is thus now actively recommending that the core content of the right to social security should consist of access to basic health care, a system of family benefits that combats child labour and helps children go to school, a system of targeted basic can transfer programmes and a system of universal pensions for old age, invalidity and survivorship (ILO, 2006: 34). Not only are such schemes affordable and a matter of human rights, evidence suggests remarkable reductions of poverty would occur (Gassmann, F. and C. Behrendt, 2006) and stimulation of economic growth in remote rural areas and the informal economy as had occurred in South Africa and Brazil.

4. Conclusion

From the perspective of the right to social security, Europe is very much a case of ‘right place, wrong time’. It is a good place to look for interesting models that attempt to combine high levels of social protection with sustainable economic growth, particularly amongst the smaller Nordic countries. However, the normative winds of globalisation and neo-liberalism blowing in the face of domestic and international development policy have cast the social welfare in a distinctly negative light, such that current approaches raise many questions from a human rights perspective.

Bibliography Bedard, Tara (2007) Employment Activating Social Assistance Schemes Not Working for Roma and Travellers, Bolderson, Helen (2007), ‘Exclusion of vulnerable groups from Equal Access to Social Security: The Case of Asylum Seekers in the United Kingdom’, in Eibe Riedel (ed.), Social Security as a Human Right: Drafting a General comment on Article 9 ICESCR – Some challenges, Berlin: SpringerVerlag, pp. 129-144. Burnett, Victoria (2007), ‘Life is grim for Spain's Roma’, International Herald Tribune, 17 April. Cichon, M., Scholz, W. et al., Financing social protection, Geneva, ILO, 2004, p. 121. European Commission (2005). A new framework for the open coordination of social protection and inclusion policies, 22 December. European Union (2006), A new framework for the open coordination of social protection and inclusion policies, 19 January, available at

41 Conclusions and recommendations of the Committee on Economic, Social and Cultural Rights, Cameroon, U.N. Doc. E/C.12/1/Add.40 (1999). 42 See http://ec.europa.eu/europeaid/where/asia/overview/index_en.htm

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http://europa.eu/scadplus/leg/en/cha/c10140.htm Galasso, Vincenzo (2007), The Political Future of Social Security in Aging Societies, European Commission, DG Employment, Social Affairs and Equal Opportunities, 23 November. Gassmann, F. and C. Behrendt (2006), “Cash benefits in low-income countries: Simulating the effects on poverty reduction for Senegal and Tanzania”, Issues in Social Protection, Discussion Paper 15, ILO. Gíslason, Ingólfur (2007), Parental Leave in Iceland - Bringing the Fathers in: Developments in the Wake of New Legislation in 2000, Ásprent, Akureyri 2007. International Commission of Jurists (2008), Global Report on Justiciability of Economic, Social and Cultural Rights. ILO (2006), Social security for all: Investing in global social and economic development: A consultation, Issues in Social Protection, Discussion Paper 16, ILO. Mares, Isabela (2007), ‘The economic consequences of the welfare state’, International Social Security Review, Vol. 60 (2-3), pp. 65-81. Khaliq, Urfan and Robin Churchill (2008), ‘Putting flesh on the bare bones of the European Social Charter’ in Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, New York, Cambridge University Press. Langford, Malcolm and Jeff King (2008), ‘Committee on Economic, Social and Cultural Rights: Past, Present and Future’ in Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, New York, Cambridge University Press. Langford, Malcolm (2007), ‘The Right to Social Security and Implications for Law, Policy and Practice’, in Eibe Riedel (ed.), Social Security as a Human Right: Drafting a General comment on Article 9 ICESCR – Some challenges, Berlin: SpringerVerlag, pp. 29-53. Luckhaus, Linda (2003), ‘Equal treatment, social protection and income security for women’, International Labour Review, Vol. 139, No. 2. pp. 149. Mihalova, Daniela (2007), personal communication with author. Mizunoya, S., C. Behrendt, K. Pal, and F. Léger (2006), Costing of basic social protection benefits for selected Asian countries: First results of a modelling exercise, Issues in Social Protection, Discussion Paper 17, ILO. Müller, Katarina (2003), Privatising Old-Age Security: Latin America and Eastern Europe Compared, Cheltenham: Edward Elgar Publishing, 2003. Scheinin, Martin and Catarina Krause (1997), ‘The Meaning of Article 1 of the First Protocol for Social Security Rights in the Light of the Gaygusuz Judgement’ in Stefaan Van den Bogaert (ed.), Social Security, Non-discrimination and Property, Antwerp, Apeldoorn, pp. 59-73. Szyszczak, Erika (2007), ‘Equal Access to Social Protection in the EU’, Roma Rights Quarterly, Nos. 1-2, pp. 17-22 Tomandl, T. (1994), ‘Constitutional Protection of Social Security Benefits in Austria, Germany and Italy’, in Asbjørn Kjønstad (ed.), Trygderettighetenes Grunnlovsvern: Constitutional Protection of Social Security Benefits, Oslo: Ad Notam Gyldendal. Watson, Philippa (2008), in Malcolm Langford, ed., Social Rights Jurisprudence: Emerging Trends in International and Comparative Law, New York, Cambridge University Press. UNDP (1997). Human Development Report 1997: Human Development to Eradicate Poverty (New York: Oxford University Press). Vonk. G. (2001), ‘Migration, social security and the law, some European dilemma's’, European Journal of Social Security, pp. 315-332

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World Bank (2005), Pension reforms and the development of pension systems: An evaluation of World Bank assistance, Washington DC. Zimmermann, Bénédicte (2006), ‘Changes in work and social protection: France, Germany and Europe’, International Social Security Review, Vol. 59, No. 4, pp. 29-45.

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United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol: the 21st Century Comprehensive Approach to Human Rights

Alexandra Pimenta – Portuguese Institute for Rehabilitation, Subdirector

Good morning Ladies and Gentlemen,

Representatives and staff of the Universidade Nova de Lisboa,

It is indeed a great honour for me to be here, sharing with you some thoughts, experiences and commitments about human rights. I particularly thank my dear friend Virginia Bras Gomes and to Catarina Albuquerque for their kind invitation and for their hard work and remarkble involvment in the field of the promotion of Economic, social and cultural rights.

Thank you very much. You are an example of how a small country like Portugal can actively influence this global partnership to achieve equal rights and opportunities for all.

I choose to talk about the UN Convention on the Rights of Persons with disabilities because, I have been working on this subject for the last couple of years and it is a human rights instrument with an explicit economic, social and cultural dimension.

It reaffirms that all persons with all types of disabilities must enjoy all human rights and fundamental freedoms, including basic social rights as the right to education, health, rehabilitation, housing, work and employment, social protection, justice and culture.

The Convention also establishes the right to accessibility as a fundamental tool to promote the real equal opportunities of persons with disabilities.

The removal of physical, social, economic and cultural obstacles in the environment, transports, communication and information and the adaptation of the society are essential to enable persons with disabilities to fully enjoy all human rights and fundamental freedoms.

This convention is the first comprehensive human rights treaty of the 21st century and it is the first human rights convention to include the social dimension of these rights. It will enter into force on the 3rd of MAY, since there are already the 20 ratifications necessary. It will be an historical day fore all. In fact, if the full and effective participation and inclusion of persons with disabilities in the society could not be achieved if the universality, indivisibility, and interdependence of rights was not proclamed. We are talking about 10 % of the world’s population, or 650 million people with disability / the world largest minority. Of the world’s poorest people 1 in 5 is a person with disabilities. Girls and women are generally among the more vulnerable and marginalized of society. Children have less access to education and training. Adults face specific difficulties in entering in the labour market. Persons with disabilities face significant barriers in accessing to health care, adequate housing and transport, public services and political and social participation in society. These number show that persons with disabilities represent a key target group under Millennium Development Goal 1- ERRADICATE EXTREME POVERTY AND HUNGER and all others goals. Obstcles, barriers, steryotypes, discrimination and lack of resources are a threat to human rights. Equal rights with equal opportunities can only be achieved with programatic and action oriented mesures in the economic, social and cultural field.

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Only a mainstremed approach of disability in all fields of life can assure ensure their full integrity, dignity and active participation in the society. These facts explain why the UN Convention of persons with disabilities is the 21st century comprehensive approach to human rights. The goal of no- discrimination and equal opprtunities can not be achieved without the development agenda. Without accessibility in the enviroment, persons with disabilities can not fully participate in society. Without health care and rehabilitation services they can not enjoy their rigth to integrity and independent living. Without education and information they can not exercise their rigths as citizens. All rights are indivisible and interconected. This was a main progress from a juridical and social point of view and had important consequences in the obligations of states Parties that will ratifiy the Convention: mainstreaming of disability in the development agenda, accountability and mechanisms for monitoring progress, target and disability specific policies, technical assistance, data collection and international cooperation.

There are eight guiding principles that underlie the Convention and each one of its specific articles:

a. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons

b. Non-discrimination c. Full and effective participation and inclusion in society d. Respect for difference and acceptance of persons with disabilities as part of human

diversity and humanity e. Equality of opportunity f. Accessibility g. Equality between men and women h. Respect for the evolving capacities of children with disabilities and respect for the right of

children with disabilities to preserve their identities.

The recognition of these principles was a big steps to promote human rights because it was recognised the obligations of States Parties to adopt the necessary measures at economic, social and cultural level to ensure the enjoyment of rights. But if they do not do so. What happens?. States parties have to present reports about their national situation which will be submitted to a UN Committee on the Rights of Persons with disabilities. This committee is an independent body, composed by experts and representatives of civil society, and will monitor the application of the Convention. National governments have to also to designate the national authorities uncharged of implementing the Convention Again the Convention established a comprehensive system because it was also adopt an Optional Protocol to the convention established a control mechanism to ensure the rights of persons with disabilities. The Protocol establishes additional functions for the Committee on the Rights of Persons with Disabilities:

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The Individual communications mechanism: The Committee considers communications from individuals or group of individuals claiming to be victims of a violation of the provisions of the Convention by a State Party of the party to the Protocol. And the Inquiries: the Committee member may conduct an inquiry on a State Party, following information received indicating grave or systemic violations of the Convention by State Party The Protocol is aditional to the Convention and need to be ratify to entry into force. It will also enter into force on the next 3 of May Although it was not posssible to integrate the dispositions of the Protocol in the text of the Convention, it was a major step to ensure the persons with disabilities fundamental rights. In my personal point of view this is an strategic instrument to make rigths effective an to reinforce the responsibility of Governments and civil society for implementing the maisnstreaming strategy and achieving the development agenda. Although some Governments are very susspcious abou this mechanism, it is important to reflect on the benefits it involves for the good governance, for the development of efficient policies, for the well being of the citizens and for their full participation of civil society. I had been working within the Council of Europe, namely in the governmental committee of the social charter and I have been assisting to the progress achived with the Protocol of Colllective Complaints, which was ratified by Portugal. It is an opportunity for civil society to participate in the aplication of the Social rights but it is mainly an important tool of development and collective responsabilities.It also improves the dialogue between civil society and public authorities. These too Protocols that I refered are, from my point of view, the result of the comprehensive approach to human rights and the recognition of the indivisibility of human rights, fundamental freedoms and development rights including economic, social and culture. I am sure that in the context of the Millenium Goals, the Improvement of social models and the reinforcement of equal opprtunities for all human rights will be promoted along within their economic, social and cultural dimension, rienforcing the public commimet and accountability for their aplication. It is and it will be not an easy task but in the 21st century, the century of global responsabilities, national and international development strategies can not jeopardize the accountability and advocay of rigths, as a fundamental tool to create better societies for all with more opportunities, justice and equality. Human rights, development agenda, monitoring and international cooperation, responsibility and advocacy are indivisible and interconnected and integrate the global approach to the full enjoyment of human rights.

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2. THE FULFILMENT OF ESCR IN EUROPE Chapter Intro

By Fernando Fernandez-Arias Minuesa

AVAILABLE SOON

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Steps forward in the policy of human rights through the adjustment of international documents to the contemporary reality

Matjaž Kovačič - Slovenian Presidency of the Council of EU; Head of the Division for International Organisations and Human Security at the Slovenia, Ministry of Foreign Affairs

I have the honour to address you as the representative of the Presidency of the Council of the European Union. It is my wish to contribute to the topic of this conference by pointing out the need to adapt our practical approach to the better fulfilment of economic, social and cultural rights. I will also be speaking about approaches the European Union has been taking in putting the provisions of various international and regional human rights documents, dealing with economic, social and cultural rights, into practice. The rights that we are addressing today are formally laid out by the International Covenant on Economic, Social and Cultural Rights, and, more recently, by the Charter of Fundamental Rights of the European Union. While the former clearly outlines economic, social and cultural rights, it has, in the sixty years since its conception, become slightly outdated. The Charter of Fundamental Rights, on the other hand, not only takes into account all these rights, but also adapts them to the reality of today. For instance by taking into account the aging of the population, as well as the growing poverty and inflow of migrant workers from less-developed regions of the world. Perhaps, the biggest contribution of the Charter to the international human rights apparatus is the joining of both: Civil and Political Rights and Economic, Social and Cultural Rights into one document. This shows the European understanding that one cannot completely enjoy some rights and neglect others. For example, an individual cannot enjoy the right to vote, the right to assembly or the right of expression, if such a person is hungry, homeless and has no access to health services. And this is not a problem in the developing world alone. Though it may not be evident at first glance, but people living in more developed parts of the world also face problems in enjoying basic human rights – different but no less important. The basic rights conceptualised by the International Bill of Human Rights over 60 years ago, are, today, manifested differently due to the changed face of the world. In the world that is turning faster and faster people now face different human rights problems compared to previous generations. One of such problems is for example the aging of the population. This is clearly one of Europe’s biggest problems. It is our task now to find a proper way to address these problems; namely in the world, in regions and in individual countries. The institutionalisation, or mainstreaming, of human rights remains a work in progress. The principles of universality, indivisibility, interdependence and interrelatedness of all human rights – although legally firmly established – have yet to be effectively implemented. Full and equal emphasis must be given to the realisation of economic, social and cultural rights alongside the civil and political rights. One of the ways for states to begin this process is to sign the major human rights treaties. The EU Member States have all already done so and now they urge, on different occasions, all those that have not yet done so. It is important that countries sign and ratify the International Covenant on Economic, Social and Cultural Rights alongside the International Covenant on Civil and Political Rights. At the end of last week we were witnesses to a historical step in the direction of the equalisation of economic, social and cultural rights with civil and political rights. After five years of hard work the Working Group successfully completed its task and unanimously adopted the final draft text of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights in order to be dealt with at the June session of the Human Right Council. The existence of the Optional

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Protocol will make the Covenant more effective in practice, bringing it closer to its sister Covenant on Civil and Political Rights. The main significance of the Optional Protocol is to allow individuals or groups of individuals to file complaints to the Committee for Economic, Social and Cultural Rights, and the UN General Assembly, when one of their Covenant rights has been violated. Slovenia as the Presidency of the Council of EU and as a member of the “Group of friends of the Optional Protocol” lead by Portugal will continue to do its best in the process of the approval of the draft Optional Protocol with the aim of having it adopted by the UN General Assembly as soon as possible. As far as the European Union is concerned, all Member States are committed to upholding economic, social and cultural rights, as demonstrated by the early ratification of the International Covenant on Economic, Social and Cultural Rights. However, the EU will have to do more on the Optional Protocol. Nevertheless, the European Union subscribes fully to the interrelatedness and interdependence of all human rights: civil and political as well as economic, social and cultural. The previous Presidency, Portugal, underlined this important message by putting it forward as a key issue during its term as a long lasting national priority. This was also the main conclusion of the NGO forum organised by the Portuguese Presidency in December 2007 here in Lisbon. To put the universality of human rights into practice, a regional approach is of great importance. The European Union has, in recent years, been dealing with specific problems of demographic changes, primarily in the form of the aging of the population. Although longer life expectancy is one of the greatest achievements of modern science, the aging of the population has changed the proportions between generations, to such an extent as to call for new social protection frameworks, and rules regarding social cohesion, coexistence and cooperation, in order to prevent the lack of enjoyment of different economic and social rights, of the groups most effected by this phenomenon. To cope with this problem, EU member states cooperate in the fields of social protection and social inclusion through the “Open Method of Coordination” (OMC). The first round of the OMC for the period from 2006 to 2008 has just been concluded and the EU member states were tasked to translate the common general goals into national strategies in the period from 2008 to 2010 for all three respective areas, namely social inclusion, pensions and health care and long-term care. Member States are invited to strengthen the mutual influence of the OMC and the Lisbon Strategy on growth and employment. The preparation of the report on national strategies is an opportunity to strengthen the endeavours aimed at realising the common long-term goal, which is to provide a decisive influence on the eradication of poverty. This common goal has been formalised with the introduction of the Social Inclusion Process, on which the European leaders agreed in Lisbon in the year 2000. Such a process gives the Member States an opportunity to coordinate policies in the areas that touch upon poverty and social exclusion. Its important part is the cooperation with non-governmental organisations, social partners as well as local and regional actors. The EU activities within the framework of the Social Inclusion Process focus on the eradication of child poverty, making labour markets more inclusive, assuring decent housing for all, overcoming discrimination and accelerating integration of vulnerable groups. I would like to finish my contribution to this panel by again pointing out that the international community has made significant progress in the development of human rights protection in international law since the signing of Universal Declaration of Human Rights. In the European regional context, a concrete example of this can be found in the Charter of Fundamental Rights of the European Union. Perhaps the most important contribution is that, after the International

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Covenants separated the so-called two “generations” of human rights into two documents – namely civil and political rights on the one hand and economic, social and cultural rights on the other – the Charter of the European Union puts both into one document. But, while the adoption of the Charter is an important step forward, I would like to stress that we should not forget that these documents are useful only if their provisions are implemented in the national legislature of Member States and thus enforced in everyday reality.

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Realising ESCR-Rights within Europe and outside Europe

Arjan Hamburger - Human Rights Ambassador at the Dutch Ministry of Foreign Affairs

Thank you for inviting me to this conference. It is an honour to be here, and I hope that the invitation is also recognition of the importance that the Netherlands attaches to human rights in its foreign and development policy. I am on the last leg of a fairly brief, but intensive trip that brought me in the past 2 ½ weeks to Uzbekistan, Argentina, the Netherlands Antilles, and Guatemala respectively. It is also with this recent experience in mind that my remarks go beyond the European context only. But let me first say a few words on the European dimension: Although in the very beginning the European Union was mainly economy driven, the main characteristic of European cooperation has always been sharing a common set of principles. The Treaty of Lisbon defines this eloquently: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the respect of law and respect of human rights, including the rights of persons belonging to minorities”. For this reason, the so called Kopenhagen-criteria play such an important role in the enlargement process. The Union assists prospective members in the process of adopting and establishing these principles both in legislation and in practice. This is one of the success factors of the enlargement process. But it does not stop there. In a Union of 27 maintaining a dialogue and exchanging best practices in the area of human rights can be beneficial to every member state. It is important to underline that our common set of values in the EU includes strong social and cultural components. Combating social exclusion and discrimination, social justice and protection, equality and cultural diversity are the key words here. President Sampaio mentioned this already in his address this morning. Policies to promote social inclusion are firmly rooted in the Lisbon strategy that aims at sustainable economic growth in the European Union. In this framework, member states exchange f.e. best practices on how to better integrate minority groups in the labor market. The Netherlands attaches great importance to this strategy. Maintaining adequate protection on human rights inside the Union is one goal, promoting the compliance of universal human right around the world is another. For my country it is essential that we, as European Union members, work on this together, in our relations with the rest of the world. In most of the countries that I just visited it was pretty easy to see how closely related economic, social and cultural rights on the one hand, and civil and political rights on the other hand are. Especially in Uzbekistan and Guatemala grave human rights violations are directly linked to social injustice. I have to add here that in Uzbekistan it is almost exclusively the government that is immediately responsible for, and involved in all sorts of severe human rights violations and social injustice, while in Guatemala the government is basically good- willing, but is confronted with extremely powerful organized crime groups – often narco-related - that clearly have no commitment to human rights whatsoever. In particular the last example shows that the usual distinction between actions (or non-actions) of the government on one hand, and the situation of the population on the other hand can be over-simplistic. Civil and political rights, as well as social, economic and cultural rights are, in our view, not only equally important, they are also mutually supportive. They are, as they say, indivisible. They reinforce each other. That recognition is not just a political choice: It has been amply proven by World Bank and UNDP studies . A few months ago, I visited Eastern Congo. In that region, sexual violence against women has become one of the grossest, systematic violations of human rights imaginable. It was clear that to the victims of these violations, the right to bring the perpetrators to justice and the right to have medical care and the right to

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have a better standard of living were equally essential. For these women too, civil-political and socio-economic rights clearly go hand in hand. Or take China, which I also visited recently, where construction companies – often in close cooperation with party officials - illegally take away the land of small farmers, resulting in serious breaches of both economic as well as civil and political rights. It seems that in our day-to-day business we, in Europe, tend to focus more on civil and political rights, in particular in our relations with developing countries. The EU in its human rights dialogues with partners in Africa, Asia, Latin America or in its European Neighbourhood Partnership rarely discusses ESC rights. Wrongly so. Having said that, we applaud Portugal’s particularly active role in promoting more attention to economic, social and cultural rights. Portugal’s tireless, and in the end successful, efforts to realize – just a few days ago – a consensus on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, providing for an individual complaint mechanism, is a clear example. Mrs Catarina de Albuquerque deserves a lot of credit for that result. I have not been too closely involved in these negotiations, but I do recognize that my country has been one of the more difficult players in the negotiations and was rather reluctant to accept the idea of an individual complaint mechanism on social and economic rights. I can tell you that the positions within the Dutch government were diverse. The Ministers for Foreign Affairs and for Development Cooperation and ministers of some other departments were much in favour of the Protocol in view of the strong Dutch support to promote human rights across the board and in view of our support to the equality and indivisibility of all these rights. But some other departments, while supporting these overall objectives, also feared some of the potential or unpredictable legal, policy, and financial implications for the Netherlands. In the end, the compromises that were found –such as the new criterion that complaints will not be accepted if there is no substantial disadvantage to plaintiff and no general interest is at stake – allowed us to join the consensus last week. Whether we will sign and ratify the Optional Protocol is still open and will require a lot of further domestic discussion. I will do my best to convince those who are in doubt. Now, most of you are experts on the subject of economic, social and cultural rights. You know what these rights are. The usual perception is that these particular rights essentially require that a state has done everything to realize them. That can include a negative obligation (the state refrains from something, for instance prohibiting the creation of a trade union), or a positive obligation ( the state has to do something, for instance providing for education). Being hungry, being unhealthy, being jobless in itself does not necessarily imply that social, economic or cultural rights have been violated. But is it enough to say “that a state has done everything”? And what does it mean? Let me, with that in mind, give you a few elements for further discussion. As mentioned, we believe in the indivisibility and the interdependence (that is: the mutual reinforcement) of all human rights. We also believe that the economic, social and cultural rights of an individual have no different status than his or her civil and political rights. There is no hierarchy. The Dutch Constitution recognizes and guarantees all human rights equally. They differ only in the sense that their implementation calls for different measures. That is what most European countries believe: no hierarchy, but different measures for implementation. Is that a justified approach? And is there indeed a substantial difference in obligations between assuring civil and political rights on one hand, and economic, social and cultural rights on the other?

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Generally, economic, social and cultural rights are seen as programmatic rights, to be realized progressively by legislative and administrative measures ( for instance : the right to work) whereas civil and political rights are more clear-cut : governments can most of the time meet their obligations by refraining from certain actions (for instance : not imposing the death penalty or refraining from torture, or refraining from restrictions on the media ) and these obligations are and can be immediate. However, this way of looking at economic, social and cultural rights is vague: it is mainly aspirational, something to be achieved at some point in the future. If these rights are merely aspirational, how can we promote their realisation, in particular outside Europe? Take Kenya: the recent conflict and the related human rights violations have clear roots in the non-fulfillment of economic and social rights (such as the right to an adequate standard of living). To us it is clear that we need to put more pressure on the realisation of ESC-rights in poor parts of the wold. That will require a change of thinking on these rights. If we change some of our thinking on ESC rights, I am sure it will also help the human rights dialogue and negotiations in the UN Human Rights Council in general: In our view, the distinction that is generally made between positive rights being associated with ESC-rights (the perception that the government has to take costly measures, such as providing for education or housing) – and negative rights being associated with political and civil rights (where the government can often simply refrain from measures, such as refraining from torture) – is not always valid or obvious. Realising ESC-rights does not by definition require active government measures: to allow for the freedom to form trade unions is one example. And on the other hand, meeting civil and political rights obligations may require active and high cost government measures, such as improving prison condtions or the training of police and judges. The usual distinction between these two sets of rights is too simplistic. In our view, civil and political rights and ESC-rights should be discussed and handled in a much more coherent and parallel manner. The separation between the two sets of rights should be reduced. We miss a crucial part of the human rights debate if we see the realisation of ESC rights merely

- as a matter of policy choices that each country should decide for itself - as something that is only attainable in the long run - as something that requires financial resources in the first place.

Let me finish by emphasizing that in our view support to development (that is : through development cooperation) and in particular support to achieve the Millennium Development Goals are key instruments in promoting human rights – both civil-political and socio-economic and cultural rights – in the poorer parts of the world. Not only have our governments had a crucial role here, but our civil societies as well. And not in the least also our private sector, in particular through its involvement in corporate social responsibility. Mere discussions are not sufficient. We have to pay down on the nail as well. That is why the Netherlands has been and remains committed to a substantial level of development assistance, which has been consistently and over many decades at a level of more than 0.8 percent of our GDP. That also is an area where the European Union and many of its member states can still improve their performance. Obviously, success of this support will most of all depend on the commitments on the side of recipient countries to good governance, human rights and sustainable development.

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The principle of indivisibility of Human Rights and its implementation at European level

Denis Huber - European Centre for Global Interdependence and Solidarity, Executive Director

I. The opposition / distinction between civil and political rights on the one hand, and economic, social and cultural on the other The classical opposition between civil and political rights on the one hand, and economic, social and cultural on the other, is well known, but worth remembering. There is first a historical background, i.e. different “generations” of human rights, as the codification of economic and social rights only came more than a century after the civil and political ones. But in the immediate aftermath of WW2, there was a strong political trend to have fundamental texts unifying all categories of human rights, such as the Universal Declaration of Human Rights of 1948. The same happened in the recently adopted EU charter, which makes no difference between the rights it contains. But between 1948 and 2000, the trend has been to divide the rights in two main categories, as we can see within the Council of Europe where civil and political rights were codified in the ECHR in 1950, and economic and social rights in the European Charter in 1961 (revised in 1996). This phenomenon took place also at international level within the United Nations (with the two separate UN covenants adopted in the 60s).

Why did it take place? First, there is an ideological context: western countries supported civil and political rights while communist countries were claiming “real liberties” as opposed to formal ones. There is also the famous problem of justiciability of rights. It was - and still is - easier for a judicial body to protect the citizens against possible undue interference from states authorities in their fundamental freedoms or in the exercice of their civil and political rights, than to assess whether the state or other public authorities have taken the appropriates measures to ensure that the right of people, for example to have a house or a job, can be fully exercised. Here, it is important to make a distinction between what is legal and what is legitimate. In European societies, decisions taken by public authorities are both legal and legitimate only if they respect the fundamental principle that human rights are at the top of the legal order. There are many judgments of the European Court of Human Rights which reveal that violations of basic human rights can be the consequence of not only a bad functioning of the system or individual errors, but also sometimes of measures which are fully in line with the national legal order. In such cases, the individual case has of course to be corrected, but it is not enough : the legislation has also to be changed, in order to prevent similar violations to happen again. In other words, legitimacy means first of all that democratically set up public authorities have behaved according to their mandates and in respect of the rule of law, and secondly - and perhaps even more importantly - that, in doing so, they have not violated the fundamental rights and freedoms of the people living on the territory they are responsible for. Of course, it is again far more easy to evaluate this second dimension when it comes to negative (i.e. the obligation to abstain) rather than positive (i.e. the responsibility to do something) measures to be taken by public authorities. Following this logic, there are two main monitory mechanisms in the Council of Europe for protecting rights : a judicial body (the European Court of Human Rights), and the Social Charter control mechanism, which is more flexible and less binding. As these two systems will be subject of specific presentation later during this conference, I will not get into more details. II. The need to decompartementalise the different categories of human rights

Why is there such a need? Times have changed and it is now possible to bring all those rights together so there can be indivisibility and interdependence. In this sense, the EU charter represented a major step forward. Though international debate is less ideologically loaded than in the past, the term “collective rights” still arouses considerable suspicion and unease. Let us attempt to look more closely at the question. What is a collective right? What distinguishes collective rights from individual ones? To reply to these questions, I will base myself, inter alia, on the contribution made by Peter Leuprecht, the former Deputy Secretary General of the Council of Europe, to the work of the expert committee CAHMIN, entrusted by the Committee of Ministers in the 1990s to draft the first international legally binding instrument on the protection of persons belonging to national minorities, widely know today as the Council of Europe Framework Convention on the protection of national minorities.

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Decompartementalise the categories of human rights is to bring all rights together and have them supervised by a single body, which is not exactly the case for the EU Charter. It also means to put an end to the distinction between individual and collective rights. Many rights can seem individual but they need to be implemented at a collective level to be functional. Collective rights are thus a way to exercise rights. There are rights and freedoms (already guaranteed by the major international treaties on human rights), which presuppose the existence of other people, groups and communities, with and within which these rights are exercised. For instance, we are given a freedom of religion, but this works only if collective structures exist to implement it. The only true individual freedom in this respect is that of not having any religion at all. Again, concerning the freedom of association, you need a collective gathering to exercise that freedom. These are rights whose mode of exercise gives them a collective dimension. Therefore, individual rights constitute the rights of human beings whereas collective rights are the rights of groups and communities of men and women. But which rights? Which groups? The Council of Europe admits the existence of human rights, which are rights of groups, and recognizes that some group rights are indispensable for the self-fulfillment of human beings. For the Council of Europe, human beings are also social beings. The relation between individual and collective rights is antagonistic and complementary. Firstly, complementarity: if one lives among an oppressed group, can one be free? It can be said that “individual” rights have never been so well protected anywhere, both nationally and internationally, as they have in Western Europe since the end of the Second World War. And yet, we can see that this guarantee of individual rights needs to be supplemented by protection of the rights of the exposed and vulnerable groups, since protection of the individual rights of each member of such groups is inadequate to ensure their self-fulfillment and even in some cases their survival. As Professor René Jean Dupuy has said: “Importance must be attached to the community, without which man is an irresponsible being, obsessed by his rights as if by money and ignoring the rights of others. But importance must also be attached to the individual, without whom the community becomes an oppressive, sometimes even a lethal abstraction”. Though there is undoubtedly a complementarity between individual and collective rights, there may also be antagonism between them. Everywhere, whatever the country or political regime, contradictions and conflicts may arise between individuals, between groups, between groups and individuals and between their respective rights. The individual comes first for the Council of Europe, and as such, the starting point to solve those conflicts must be humanity, which cannot be simply reduced to its social environment. As Professor Rivero has said: “The rights of groups are quite simply the rights of human beings to receive from groups the resources necessary for their fulfillment… Since a group derives its own rights from serving the people who comprise it, it has no rights in conflict with human rights. In the hierarchy necessitated by plurality of subjects, the person takes precedence over the group, and groups themselves can only be organized on the basis of their more or less close relation with persons”. This is a great summary of the spirit of the Council of Europe. It is necessary to approach social, economic and cultural rights on the basis of the principle of universality and indivisibility. It hardly needs saying that the foundation for the whole edifice of human rights is the idea of human dignity. There need to be an equal dignity of all human beings. This is why human rights are necessarily universal. If they were not, they would not deserve to be called human rights. Human rights are also concerned with the human person in its entirety. Like the human personality, they are indivisible; civil, political, economic, social and cultural rights form a whole. Phenomena such as insecurity, poverty, destitution and social exclusion provide a striking practical demonstration of the indivisibility of human rights. This first-hand experience of indivisibility should lead us to rethink human rights and make a thoroughgoing reassessment of where in relation to these rights we situate ESCR.

III. The difficulties in codifying cultural rights

A reassessment is today not already on the agenda of the Council of Europe but there is a trend to bring together the different categories of human rights. This might bring a chance for a renewed tentative to codify cultural rights, after the difficulties (but also the successes) that were encountered in the 90s in implementing the decisions of the first Council of Europe Summit held in Vienna in 1993. Indeed, it proved to be very difficult - but in the end possible – to draft the Framework Convention on the protection of national minorities. But the story was even more difficult - and less successful - when, after having drawn up the framework convention in October 1994, the CAHMIN concentrated its attention on a draft additional

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protocol complementing the European Convention on Human Rights “in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities”. To be able to form part of an additional protocol to the European Convention of Human Rights, the CAHMIN decided that the various rights examined must meet four criteria:

- The right must be above all one that is additional to those already guaranteed by the European Convention on Human Rights;

- It must be fundamental in nature;

- It must meet a real need;

- It must, lastly, be enforceable.

The various rights examined were the following:

- The right to choose one’s cultural identity and have it respected; - The right to use the language of one’s choice in public and in private;

- The right to one’s name;

- Freedom to choose to belong, or not, to a group, and to be treated accordingly;

- The protection of the cultural and scientific heritage;

- The right to cultural activity;

- The right to create cultural and educational institutions;

- The right to learn the language of one’s choice;

- The right to education;

- The right to lifelong education of adults;

- The right to access to information and to its dissemination;

- The respect of cultural identity in the media and the education system;

- The right to intellectual property;

- The right to reply;

- Respect for cultural identity in general.

During its deliberations, the CAHMIN ran into difficulties already encountered by the different expert groups which had been set up in the past on this question:

- Economic difficulties: the costs engendered by the enactment of these rights might induce states to restrict the benefits;

- Constitutional difficulties: certain rights being proposed might lead to a “transfer of competence”

from the executive and legislative arms to the judiciary, for example in the field of state education;

- Legal difficulties: the introduction of new rights being proposed in the additional protocol might restrict the current extensive interpretation by the Court of the European Convention on Human Rights and its protocols. Besides, one would have to identify these new individual rights such as, for example, the right to cultural identity.

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Nonetheless, the CAHMIN drew up a draft protocol recognizing four rights:

- The right to one’s name - The right to use the language of one’s choice - The right to learn the language of one’s choice - The right to create cultural and educational institutions

In its report to the Committee of Ministers, the CAHMIN presented the four following options:

1. To open the additional protocol, in its most limited form, for signatures by the states; 2. To complete the draft protocol, by including in it supplementary rights;

3. To suspend the work and possibly resume it in several years’ time;

4. To totally abandon the idea of an additional protocol as a means of ensuring the legal protection of

cultural rights. The legal and political difficulties proved in the end to be so great that, at the 554th meeting of the Ministers’ Deputies, from 8 to 11 January 1996, the Committee of Ministers decided to suspend the work of the CAHMIN, while continuing to consider “the feasibility of establishing new norms in the cultural field and the field of the protection of national minorities, taking into account the declaration adopted at the Vienna Summit”. No new developments took place since then. To conclude, it is essential to remember that human rights are not only the rights of each of us but also - and perhaps primarily - the rights of others. Respect for human rights is mainly practiced in encounters with others and otherness. People today must be taught to appreciate how much they need others; they must be made aware of what Abel Martin has called “the essential heterogeneity of beings”, and must realize that “to discover otherness is to discover a relationship, not a barrier” (Lévy-Strauss).

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3. ESCR & INTERNATIONAL DEVELOPMENT AID: CHALLENGES, OBSTACLES AND GOOD PRACTICE

Chapter Intro Activities developed by global players in all fields have implications for countries in economic, social, cultural and environmental terms. This comes as a result of an increasingly globalized world, which reinforces the need of a wider responsibility for the human rights dimension. Development Aid and Cooperation policies’ coherence requires taking into consideration the objectives (and the economic, social and cultural aspects) of sustainable development, as well as the obligations to respect, protect and fulfil human rights. The following papers address this topic by assessing the conduct of international financial institutions, advocating a human rights based approach to development, and by introducing the Right to Development as a global tool towards the realization of Economic, Social and Cultural Rights.

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The human rights dimension of international financial institutions

Regine Richter - Urgewald Starting point: all excuses Looking into international financial institutions (IFI) and human rights, one finds different excuses these institutions present to explain why they don’t feel especially responsible for the protection of human rights. The World Bank explains they operate under a strictly economic mandate and they are a non-government entity, which is why they don’t have to follow state obligations to respect, protect and fulfil human rights. Export Credit Agencies, national entities to provide money and/or guarantees for exports of the national companies, claim that their mandate is “export promotion” and that they might take into account environmental, social and development considerations but as secondary concerns. The European Investment Bank, the European house-bank, an important financial player within and out of the European Union, considers itself first and foremost a bank and has so far no provisions for taking into account human rights protection in their due diligence on projects. Why should international financial institutions care about human rights? While the institutions might consider human rights and their protection as non-topics for their work, their lending has obviously impacts on human rights, including economic and social rights, on different levels. Direct impacts result from IFI activities that lead to resettlement. This is typical in large dam projects, mining operations, plantation, or pulp and paper projects, which are typical activities financed and/or supported via guarantees by IFI. For large dams alone the World Commission on Dams estimates that worldwide 40-80 Million people have been resettled, not necessarily voluntarily. Another possible impact on economic and social rights is the degradation of livelihoods through projects supported by IFI. This includes impacts on rivers downstream from large hydro projects, as damming up typically deteriorates the water quality, which might impact the amount and variety of fish available for people living downstream the dam. The damming might as well have the effect that floods that were helping to fertilise soils for farming won’t occur any longer, thus playing badly on productivity. Deforestation as effect of pulp and paper production or agricultural projects has impacts on communities living in and from forests. Negative health effects may be the result of polluted water or the pollution of soil due to industrial projects financed by IFI. Where weak governance meets natural resource (like oil, gas, timber or metals) exploitation, the effect is usually that the poor population ends up worse off in terms of economic and social development: the countries get highly indebted, corruption as well as conflicts spur on, less investments are made in education, the exploitation of resources leads to environmental destruction and in general the political instability grows. This sort of impoverishment is another impact resulting from projects typically supported by IFI. Leaving the direct impacts, there are as well economic and legislative impacts of IFI supported projects. Oil-pipeline projects for example often include so called “host government agreements” which are made between the consortium building and using the pipeline and the governments of the countries the pipeline is crossing. These agreements are made to protect the investment against “negative interference”. The “economic equilibrium” should not be disturbed through for example new tax or environmental legislation. So-called stabilisation clauses may require from the host governments that they consult the consortium before issuing new legislation. This influences the ability of the countries to develop their legislation further and might prevent them from adopting relevant legislation to bring themselves in line with for example EU legislation as was discussed in the case of a pipeline in Turkey. Another type of agreements that are involved in oil and gas projects are “production sharing agreements” that regulate the division of the flow of income from a given project between the host country of the project and the investors. These production sharing agreements, that exist as well for large hydro and other types of projects, are often more to the

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advantage of investors than the host countries, leaving the countries with all environmental and social risks but very few of the profits. European Investment Bank and human rights The house-bank of the European Union provides annual loans of nearly 50 billion Euro, of which around 5-6 billion Euro are spent outside the EU, on projects including large dams or oil pipelines with the described effects. Looking into EIB’s internal procedure, one finds only general commitments for the protection and promotion of human rights, but the bank lacks a separate policy on human rights and it is unclear to which international standards, laws and conventions the EIB is referring to in its operations. Outside the European Union the bank states: “Human rights and their associated responsibilities are an integral element of the concerns for both the mitigation of adverse impacts as well as the promotion of positive outcomes. The EIB encourages adherence to the various international conventions, and other laws governing the protection and promotion of human rights in the countries in which it operates, and will not disburse funds in a country that has been declared ‘off-limits’ for EU financing” (1). In the light of the complexity of the issue this statement is quite vague and the language very general especially given the need to identify all responsibilities for human rights violations in the context of economic and financial operations which see multiple actors involved having different functions associated with funding management and implementation. In its policy the EIB should be guided by EU objectives as the European Court of Justice has ruled: “it is clear…that the EIB is intended to contribute towards the attainment of the European Community’s objectives….” (Commission v. European Investment Bank, 2003). This means that the EIB should take seriously the Treaty of Amsterdam saying that the European Union is founded on the principles of liberty, democracy, human rights, fundamental freedoms and the rule of law. For the lending outside the EU the bank should take serious the European Community Development Policy Statement. It says that the “Community development policy is grounded on the principle of sustainable, equitable and participatory human and social development”, which implies a strong uphold of human rights. Given the increase in external lending of the EIB, it should adopt a pro-active approach the EU Human Rights commitments enshrined in European treaties and agreements (2). Export Credit Agencies and human rights

Export Credit Agencies (ECAs) are governmental or quasi-governmental departments that help companies to invest and export overseas. ECAs typically provide financial backing in the form of guarantees, insurance or direct loans. Their purpose is to protect companies against the commercial and political risks of not being paid while operating abroad. ECAs underwrite 10 % of global exports from large industrial countries.

Although ECAs deny special duties on human rights, there is a clear legal nexus to the state, either through direct ownership as in the case of UK or US or through state-control of the private companies acting on behalf of the state as in the case of France, Germany or Italy. States themselves have responsibilities under international law. Keenan notes that the International Law Commission, a body to promote the progressive development of international law and its codification, defined in 2001 conditions under which states have a legal responsibility for breaches of their international obligations, which are referred to as ‘wrongful acts’. They clarify that any violation of international law committed by a state organ, or by any person or entity empowered by the law of the state to carry out elements of governmental authority, will be attributable to the state. States are therefore responsible under international law for any wrongful acts committed by their ECAs (Keenan, 2008, p.3).

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Given that states have the obligation to respect, protect and fulfil human rights, they are as well obliged to take measures to regulate and adjudicate the actions of non-state actors violating the human rights of individuals within the territory of the state. It has been argued that these obligations are valid as well for third parties acting overseas while being under the control of the state. The Committee on Economic, Social and Cultural Rights has given guidance on the nature and content of these obligations with respect to the right to water in its General Comment 15:

“Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. Where States parties can take steps to influence other third parties to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law.” (3) Not only have states obligations to protect human rights, Keenan argues that they can even be complicit with human rights violations. This would be the case where ECA support is crucial for the investment of a corporation in a foreign country and where the foreign state allows the company to operate in such a way that the state breaches its international human rights obligations. The acts of the ECA are attributable to its home state, this could be found to be aiding and assisting the hosts state’s wrongful act (Keenan, 2008, p.7). Keenan gives an example of how ECAs and their host states can become complicit: “For example, it is not uncommon for extractive investments and large infrastructure projects to require the relocation of entire communities. Some local populations oppose relocation and are moved against their will. These relocations can involve the use of armed forces including the police and/or military, as well as private security companies. An ECA could support such a project in a country where the police and military have poor human rights records. In the event that public officers commit human rights abuses during the relocation, it is highly likely that the host state, as the party responsible for their activities, would be in violation of its human rights obligations. One could argue that if local opposition to relocation was reasonably foreseeable, as it would be by means of a credible ECA due diligence process, and given that the police/military’s behaviour was similarly foreseeable, that the home government, through its ECA, had knowledge of the circumstances of the internationally wrongful act. Arguably, this knowledge, together with the provision of ECA financing, would make the home state complicit in the wrongful act of the host state. This assumes that the home state is bound by the human rights provision that was breached by the host state-“ (4) The way forward for ECAs would be that states adopt legislation that mandates their ECAs to protect against the interference of human rights by third parties. The states should then enforce this legislation by ensuring that the human rights policies and practices are effective in achieving this legislated mandate. One important aspect for the achievement would be the allocation of sufficient human and financial resources to ensure that these tasks are carried out effectively. To be really serious about the human rights protection, states should establish independent investigative and adjudicative procedures, which can address allegations concerning ECA’s interference with human rights. Effective remedies to victims in cases of human rights abuse are a mechanism to show seriousness about human rights protection. ECAs would need human rights policies that identify and clearly explain for example the human rights standards to which a client must conform, performance indicators, exclusions from trade and investment support on the basis of human rights concerns, specific information that clients are required to provide regarding the human rights impacts of proposed projects. World Bank and human rights The World Bank’s traditional refusal to include human rights concerns in its operational policies centred on a narrow interpretation of the institutions charter. Horta explains: “According to this interpretation, the Bank cannot address questions of political and civil rights because the Articles of Agreement prevent it from interfering in the political affairs of its member countries. The relevant article indicates that ‘only economic considerations shall be relevant’ in the World Bank’s decision-making.” (2002, p. 229).

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However, this narrow interpretation has seen some movement over the past years. Senior Vice President and General Counsel Robert Dañino published, before departing, a legal opinion on human rights and the work of the World Bank (6). He argues that the concept of development has evolved during the time of the World Bank’s existence, leading to the bank’s current mission to alleviate poverty through economic growth and social equity. This has a strong human rights dimension and does no longer allow a narrow definition of economic development, “but encompasses broad areas of human development, social development, education, governance and institutions, as well as issues such as inclusion and cohesion, participation, accountability and equity. Development also requires us (…) to address the environment, cultural property and a diverse range of issues which fall outside the remit of economic development in a restricted sense. Many of these areas relate directly to the realization of human rights, in being either preconditions for such realization, or the subjects of human rights themselves. Indeed, human rights and development share important conceptual and practical affinities and are fundamentally linked with one another.” (Dañino, 2006, p.3). According to Dañino there are therefore no limits for the consideration of non-economic issues, which includes human rights, when they have economic implications or consequences. However, his successor, Ana Palacio seemed to have different ideas. According to Baker, “Palacio emphasises that ‘the World Bank has limitations on strictly political activities’ based on its articles of agreement. She puts much emphasis on the World Bank’s ‘facilitative role’, to support country members to realise their human rights obligations and states that human rights should not ‘be seen as an agenda that could present an obstacle for disbursement or increase the cost of doing business’.” (Baker, 2007, p.1). Another problem is that the bank does not seem to see human rights as an intrinsic value but rather as an instrument to advance corporate goals: human rights are all about risk management and value creation. This is a concern that human rights organisations have as well with the new human rights impact assessment (HRIA) the International Finance Corporation (IFC) is now “road-testing”, the corporation made it clear, that their approach to the HRIA will be flexible, which will not be enough to uphold seriously human rights. But this is what a public institution should be obliged to do. Some organisations are actually concerned about the World Bank taking up human rights. They see the problem that an institution with the economic and social power and influence of the World Bank might burden countries with an additional set of loan conditions, which are based on human rights. However, a way out of this potential dilemma might be not to promote human rights per se, but integrating a human rights approach into the project appraisal. Another concern human rights groups do have is the possibility of the World Bank co-opting human rights and perverting them. One example of how this could happen is the concept of “Free Prior Informed Consent” (FPIC), which gives indigenous people rights in case of projects taking place on their ground and requires that they actually give their consent. In its new performance standards the IFC uses the term FPIC, but changed the “consent” into “consultation” which is much less powerful. Way forward The Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie was asked to report on a Framework for Business and Human Rights. When compiling the report Ruggie examined as well IFI and their human rights obligations. He held a consultation in February 2007 especially on IFI. Key society arguments included: the obligation of public financial institutions to ensure that their clients meet international human rights standards; IFI are bound by international law and international legal obligations must take precedent over internal IFI procedures; human rights impact assessments need to be embodied in national and international normative and regulatory frameworks and clauses in host-government agreements that exempt the private sector from national laws and restrict access to justice for project-affected people should be prevented.

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Endnotes (1) EIB (2006), “The Social Assessment of Projects outside the European Union 1: the Approach of the European Investment Bank” approved by the EIB the 2nd of October 2006. (2) Counterbalance (2008), “Reforming the EIB: A human rights based approach”, Citizens’ Guide to the European Investment Bank, pp. 32-37 (3) E/C.12/2002/11, paragraph 33 (4) Keenan, K., Halifax Initiative Coalition (2008), “Export Credit Agencies and the International Law of Human Rights” (5) Horta, K., (2002), “Rhetoric and reality: Human Rights and the World Bank”, Harvard Human Rights Journal, vol. 15, pp.227-243 (6) Dañino, R. (2006), “Legal opinion on human rights and the work of the World Bank” (7) Baker, L., Bretton Woods Project (2007) “The World Bank and human rights”

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A Human Rights Based Approach to Development

João José Fernandes - Oikos AVAILABLE SOON

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The Right to Development as a Means to Realize ESCR Worldwide

Felix Kirchmeier – Friedrich Ebert Stiftung What is the Right to Development?

Art. 1: The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. (Declaration on the Right to Development, UN, 1986)

This is how the first article of the 1986 UN Declaration on the Right to Development (RtD) defines this right. The Declaration also links the RtD to the right to self-determination (art.1), identifies the human person as central subject of development (art. 2), lays out responsibilities of the state and the international community (art. 3-5), and names world peace and security as well as equality and participation as key principles underlying this concept (art. 7-8). Throughout the document, the Declaration calls for cooperation as a means to realize this right for every human being. Base-line for the RtD are the five principles of equity, participation, non-discrimination, transparency and accountability (Marks 2006). Yet, the RtD is a strange animal – being a right with national and international, individual and collective aspects. This broad, and sometimes vague, content opens the door for varying interpretations. So, while uniformly agreeing on the RtD, most nations still do so on a different understanding of this concept. Some place the emphasis on the national aspect which says that the state has the primary responsibility to create conditions favourably to the realization of the right (art. 3.1 and art. 8) while others focus in their interpretation on the international cooperation necessary to promote these favourable conditions (art. 3.2. and 3.3.). The fact that the national and international dimensions even form part of the same article of the declaration should suggest that one dimension cannot be seen without the other, and this is stated again explicitly in article 4.2. which sees the international efforts as a “complement” to the national ones, but this is a view which seems to escape many state representatives. In practice this means that donor countries usually stress the need for good governance and democratization while developing countries point to the need of enhanced development assistance and a change of or even reparations for the international (trade) system which still favours rich nations43. Both sides still acknowledge the other position, but see a necessary chronology which makes the fulfilment of their claim the basis for addressing the other. The dichotomy of positions is even clearer in the case of individual and collective aspects. As seen above, the RtD is a right of “every human person and all peoples” (art.1). Again, this fact is laid down even within the same sentence, but the understanding on which all nations accepted the RtD as part of the 1993 Vienna Declaration is not that unanimous at all. Acceptance of the collective dimension of human rights is a discussion point which cuts across the range of all human rights44. While the strong argument for the individual nature of human rights causes its most conservative supporters to fail to acknowledge the value added that a collective approach offers, it is true that on the other side some pertinent defenders of the collective dimension of human rights use this

43 Obviously, this distinction between the positions of developing and donor coutries’ positions is highly

simplified for the purpose of this article. Many states have adopted views that lie between the two positions and are open to learn from implementation experiences. For more detailed descriptions, see Kirchmeier 2006, Marks 2006, reports of the UN Working Group on the Right to Development. 44 To highlight this issue, FES Geneva organized on March 22, 2007 a panel discussion in the frame of the

4th session of the Human Rights Council, entitled: "Third Generation" Human Rights – Reflections on the Collective Dimension of Human Rights. This event showed that the collective dimension of human rights can be found in all areas – from country situations to fundamental freedoms and economic rights. To consult the program and report please visit www.fes-geneva.org.

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approach to justify their governments practice to post their demands vis-à-vis other governments as human rights claims or even to argue on a human rights basis for a right of the state to cut back on the individual liberties of its citizens in the name of development. Possibilities to overcome those two disputes and unify the vision of the RtD in favour of the possible beneficiaries of the RtD, i.e. the people in need, will be shown further on in this article. To arrive there, a short recapitulation of the history of the RtD might be helpful. The development of the Right to Development Elsewhere, the history of the RtD is explained more in detail (Kirchmeier 2006, Marks 2003, Franciscans International 2003). At this place, only the general lines of development shall be mentioned. With the independence of numerous former colonies and their accession to the United Nations, their claims and ideas became visible in the international debate. Drawing from ideas developed in the 1950s and 1960s, so-called dependency theory developed, voiced among others by then director of the Economic Commission for Latin America and the Caribbean (CEPAL), Raul Prebisch as the argument of structural disadvantage of developing countries in the international order. The UN Declaration on the RtD, which was drafted starting in 1981 could be adopted by a vote of the General Assembly in 1986; but it took until the end of the Cold War, when, in 1993, 171 heads of state (now including the US) would adopt unanimously the Vienna Declaration and Programme of Action, congaing direct reference to the RtD. This phase in history was about as conducive to the promotion of human rights as the time following World War II, which allowed for the drafting of the Universal Declaration on Human Rights – it seems that the wake of conflicts and disaster is always the greatest chance for a return to reason and cooperation. Since then, the RtD is mentioned in all major UN human rights documents (annual reports by the High Commissioner or the Secretary-General, reports of major conferences like the Millennium Declaration etc.). Currently, the work on the RtD is carried forward in the UN framework in a cooperative and practical approach which shall be portrayed here shortly. After a first Intergovernmental Working Group and an Independent Expert had been entrusted with the task to flesh out the meaning of the Right to Development from 1996-98 and 1998-2004 respectively, a second Open-ended Intergovernmental Working Group (WG) was reinstated in 2000, which is carrying on the work since then. After the mandate of the Independent Expert ended in 2004, the Commission on Human Rights decided to nominate a high-level task force (HLTF) of five internationally renowned experts from different regions to provide scientific background and advice to the WG. The HLTF is assisted in this task by external experts, so-called institutional members from other UN agencies and of course the Office of the High Commissioner for Human Rights (OHCHR). Current efforts in the HLTF are to apply the RtD to global development partnerships as called for in Millennium Development Goal 8 (MDG 8: “Develop a global partnership for development”, UN, MDGs). For this purpose, a set of “criteria for the periodic evaluation of global development partnerships from a RtD perspective” (See annex) has been elaborated and is still being refined and reviewed by the HLTF and the WG. To allow for a meaningful evaluation of the degree of fulfillment of the criteria, the HLTF has also embarked on a process of identifying indicator questions related to the criteria (“Suggested initial implementation checklist for the criteria”, see Annex II of the report of the 3rd session of the HLTF: A/HRC/4/WG.2/TF/2). This list of indicators is usable in most cases but still needs some reworking. All actors are aware of this, which is why this indicator list has not yet been endorsed by the WG or adopted by the Human Rights Council.

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Aside of this practical approach, the political debate about the future legal form of the RtD has again gained momentum. The major controversy circles around the question, whether a binding international Convention on the RtD should be created or not. Western states generally reject the automaticity of carrying a non-binding Declaration over into a binding Convention for which they see no immediate need and feel that the precise content and scope of such a Convention has not been discussed sufficiently. Members of the Non-Aligned Movement (a group of over 100 countries, aligning their political statements at the UN) on the other hand are leading the initiative to arrive at such a Convention as soon as possible, following a decision made at their ministerial summit meeting in Havana 2006.45 The HLTF has not taken a position on this political issue, but individual members of it have laid out the various legal options in an academic exercise sponsored by the Friedrich-Ebert-Stiftung in January 2008. (Publication forthcoming in July 2008; check on www.fes-geneva.org). Difference to a human rights based approach to development To define the value added by the RtD for realizing economic, social and cultural rights world wide via international development cooperation, a short differentiation between this concept and the human rights based approach to development (HRBA) shall be given. Within the narrow field of development cooperation (and leaving aside the areas of international trade and financial systems, which also fall into the scope of the RtD) the RtD could be described as a ‘HRBA+.’ The HRBA means human rights in development and therefore relates to mainstreaming human rights in development policies, describing the process of development. The RtD approach, like defined by Arjun Sengupta in his role as UN Independent Expert, emphasizes the RtD as a process of progressive realization of all human rights, while it sees the process of economic growth as a mere option and not an end. (Franciscans International, 2003 and OHCHR 2006). The RtD approach is, like the HRBA, a human rights process, but additionally aimed at human rights results. To arrive at those results, it also takes into account the impact of the global economic and political system for the creation of an enabling environment for this development and aims to change the current imbalances of this system. For example, while a HRBA in the area of the right to health might aim at building hospitals accessible to the whole population, the RtD approach would additionally address the impediments to the realization of the right to health in the national and international context and also treat the right to health only as one facet in the realization of human rights, contributing to development also by “side products” like the better enabling environment for education, among other things.

45 The Non-Aligned Movement (NAM) is an international organization of states considering themselves not

formally aligned with or against any major power bloc. It was founded in April 1955; as of 2007, it has 118 members. The purpose of the organization as stated in the Havana Declaration of 1979 is to ensure "the national independence, sovereignty, territorial integrity and security of non-aligned countries" in their "struggle against imperialism, colonialism, neo-colonialism, racism, Zionism, and all forms of foreign aggression, occupation, domination, interference or hegemony as well as against great power and bloc politics." They represent nearly two-thirds of the United Nations's members and comprise 55 percent of the world population, particularly countries considered to be developing or part of the third world’ (http://en.wikipedia.org/wiki/Non-Aligned_Movement). Also see http://www.nam.gov.za. In the declaration of their Ministerial Summit Meeting in Havana, Cuba 2006, they ask the UN Human Rights Council to “agree on a program that will lead to the elevation of the right to development to the same level and on par with all other human rights and fundamental freedoms, elaborated in the core human rights instruments” (Art. 54.c) and further on “[u]rge the UN human rights machinery to ensure the operationalisation of the right to development as a priority, including through the elaboration of a Convention on the Right to Development […]” (Art. 235.10). http://www.cohre.org/store/attachments/RWP_NAM_2006_Havana_Summit_Final_Doc.pdf .

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This difference shows, why, when aiming at the realization of economic, social and cultural rights (ESCR), the RtD approach is more appropriate than the HRBA. This again leads into the main question of this article: Why is the RtD important in realizing ESCR world wide? Right to Development as an opportunity to realize ESCR in cooperation International development aid can be used to strengthen specific ESCRs directly (like it is done in the HRBA) but also indirectly by helping the recipient state to rethink its own priorities respective the protection, promotion and fulfillment of all human rights. (In this point the argument goes beyond the concrete scope of this article, which is to focus on ESCR, but actually the often stressed interdependence and indivisibility of human rights means that one set of human rights can never be completely realized without the other). In this regard, some critics see the international dimension of the RtD as a continuation of former conditionality-based development aid. Yet, the crucial difference is that the RtD builds on the national commitments and plans to promote development and sees the international dimension as complementary and based on the same values and commitments on both sides of the partnership. Therefore a developing country can only call for international assistance on basis of the RtD, in order to promote and fulfill the human rights of its citizens beyond the scope of its own means or in order to remove obstacles outside of its own realm. This also counters the relativist argument that human rights would pertain only to certain regions or legal traditions in the world and not to others. At the same time this approach, which aims at the realization of ESCR in developing countries, forces the donor state to face its international obligations in the fulfillment of human rights as alluded to in article 2.1. of the International Covenant on ESCR and the obstacles that policies in other areas might pose to attain this goal (art. 3.3. of the Declaration on RtD). Enhancing the effectiveness of development aid through the Right to Development Experience shows that ownership and national development plans are indispensable for successful implementation of development projects. The Declaration on the RtD proclaims that “States have the right and the duty to formulate appropriate national development policies that aim at the constant improvement of the well-being of the entire population […]” (Art. 2.3.). This means that development policies have to be formulated by the state concerned – bearing in mind its duties under international (human rights) law and acting in the interest of its population - and that those policies form the basis for cooperation. Projects developed on this basis have a high chance of sustainability because they cater to the real needs of the people and do not follow externally-developed ideas and schemes of development. Yet, this is rather a theoretical aim, as it depends largely on the participatory process in the developing country and the ability of the developing country’s government to capture and define the population’s needs and priorities – including those of marginalized and most vulnerable parts of society. Many donor states already are basing their cooperation agreements on such national development plans, but the value added by a RtD approach would be its universality. All partnerships would automatically be bound to this provision; donors would have to work on the basis of national plans while the recipient country’s government would be under an obligation to develop those plans with the aim of “the constant improvement of the well-being of the entire population.”

Right to Development as an example of good practice

To start with, it has to be acknowledged that not many good practice examples of the RtD exist as of today – at least not explicitly. This is due to the fact that rarely both sides of a partnership intentionally base their agreements on the RtD, even if they would be fully in line with its requirements and could use the RtD as a supporting factor or an additional instrument for

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measuring their activities from a human rights angle. Yet, donor countries often fear that a reference to this right could bind them to any interpretation of the RtD, while recipient countries fear an uneven emphasis on the national aspects of the RtD which could lead to a loss of policy space for them. This might be different in regional cases, where the RtD has found entry into legally binding charters (e.g. the Latin American/OAS or the African human rights system) but due to the panel session for which this presentation was prepared, this article is focusing on cross-regional bilateral cooperation. Nevertheless, the application of the RtD can already be tested in actual cases. The joint FES / GTZ46 publication: “Towards the Implementation of the Right to Development (Kirchmeier, Lüke, Kalla 2007) takes up that challenge and applies the criteria, which had been developed by the HLTF (see above) in a way of road-testing to Kenyan-German bilateral development cooperation. It concludes with recommendations to the partnership as well as to the HLTF regarding suggested refinement of the criteria, as some had proven non-operational or insufficient. This publication shall be presented here a little more in detail, because to date it is the only study that applied the RtD criteria on bilateral development cooperation.

FES / GTZ study on the implementation of the Right to Development As mentioned above, this study takes Kenyan-German development cooperation as a test case.

Resulting from this, some recommendations relate directly to the Kenyan-German example to

show how concrete recommendations can be derived from an application of the RtD criteria.

More importantly, it also makes recommendations for bilateral partnerships generally and to

the HLTF regarding the methodological refinement of the criteria. It has to be kept in mind that

the study does not provide an evaluation of both countries’ overall performance regarding the

RtD, because the criteria are designed for periodic evaluation of a partnership, not of a country.

This means that only the small scope of the partnership itself is taken into account and not the

other policies, actions and inactions of the players. A holistic analysis of the RtD in both countries would have to do this, but it can neither be done on the sole basis of those criteria nor with the limited set of information which constitutes the basis for this study. For this pilot project Kenya and Germany had been chosen, because they formally have committed themselves to high human rights standards, and their cooperation is aligned to a human rights based approach. Due to this, a lot of information was accessible and could be used for an evaluation of the criteria. As explained in depth in the publication, the information available was still not always sufficient to answer to all the indicator questions related to the UN criteria on the RtD, which leads to gaps in the evaluation but at the same time underlines the process character of this undertaking. As method to match the information gained from the background documentation of the partnership to the criteria, a matrix was developed. This matrix posts in a first column the criteria, followed by a second column which identifies to which partner of the partnership this criterion applies. In the third column, all relevant indicator questions of the “initial implementation checklist” (see above) are matched to each criterion. The next column (itself divided into three parts) gives relevant information from national and international sources to answer the indicator

46 The publication was edited jointly by the Friedrich-Ebert-Stiftung (Geneva Office) and the Gesellschaft für Technische Zusammenarbeit (an implementing agency for German Development Cooperation), drawing from data made available through the German Ministry of Development and Cooperation (BMZ). The paper was published in December 2007 and therefore could not yet comment on the latest upsurge of violence in the country.

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question, and attempts a tentative evaluation. (See box 1 below). This allowed for a careful consideration of every criterion, using every possibly important indicator question at any place it seemed helpful. Many indicator questions were used multiple times to evaluate various criteria.

Box 1

Criteria Implementation of the RtD to the

Bilateral Development Partnership

between Kenya and Germany

Structure/

enabling environment

Partnership

countries

(Kenya and

Germany)

Indicators

(Implementation

Checklist)

Yes, No,

Partly

Comments/

Explanations

Tendency

re. Criteria

(↑, →, ↓)

(b) The partnership

respects the right of each

state to determine its

own development

policies, in accordance

with its international obligations.

Respect re. the right to

determine one’s own

development policies

Germany: 7. Do developed countries

respect national development

strategies and priorities elaborated by developing

countries?

Yes - KJAS in consultation with

the Kenyan government and

non-state actors (KJAS, 7); - KJAS supports various

strategies and priorities

(KJAS, 19ff.); - One of the central principles

of German development cooperation is to align itself

to partners’ priorities, thus

following the political commitments of the Paris

Declaration on Aid

Effectiveness.

↑

Excerpt from Annex 1: Matrix for the Application of the RtD Criteria and Indicators to the Kenyan-German Partnership.

Source: Kirchmeier/Lüke/Kalla 2007, p. 15.

The outcome of this exercise was twofold: suggestions for the refinement of the criteria were made and recommendations for bilateral development partnerships formulated. The suggestions to the HLTF were, in short, the following: to exclude broad criteria, to develop new criteria, to develop new indicators and to restructure the list of indicators, and finally, to develop effective measurement mechanisms. Below, they are quoted in a slightly shortened version.

1) Exclude Broad Criteria

It is recommended that criteria a, e, j and o are excluded from the list. As has been explained, these criteria are very comprehensive and thus lack specificity. We therefore believe that an effective evaluation of them is difficult to achieve, as can be seen from the example of Kenyan-German development cooperation. 2) Develop New Criteria

The aim of the criteria and indicators is to evaluate development partnerships from a “right-to-development perspective”. However, a closer examination of the 1986 Declaration on the RtD reveals that while many Articles have been addressed through the criteria established, a few have been left out. The raison d'être lies in the politically careful creation of the criteria. Although this circumstance is acknowledged, it is deemed important that at least one of the Articles, namely Article 8.1, is being introduced to the revised list of criteria. This Article in mind, the following two criteria are proposed: Process: (h) The partnership supports necessary economic and social reforms with a view to eradicating all social injustices. Outcome: (m) The partnership ensures equality of opportunity for all in their access to basic resources, education, health services, food, water and sanitation services, housing, employment and the fair distribution of income. Finally, as explained earlier, we suggest that criterion (i) be reformulated: (i) The partnership applies human rights impact assessments and supports, as needed, the establishment of social safety nets. 3) Develop New Indicators

Recommending new criteria entails proposing new indicators. The following indicators are suggested for none of the existing ones can be applied to the new criteria:

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5. Do a government’s national development strategies and priorities include economic and social reforms, such as education, health or water sector reforms? 6. Does the government provide public access to basic resources or, if they are provided through private operators, does the government ensure that access is not denied? 1a. Are the national development strategies and priorities pro-poor, i.e. are they considerate of marginalized and vulnerable groups? 4. Does the government make use of anti-corruption measures? 10. Is there an increasing trend in terms of the percentage of untied aid? 11. Do partnership countries’ accountability mechanisms provide remedies for human rights claims relevant to the right to development, and complaint and oversight mechanisms? 4) Restructure the List of Suggested Indicators The “Suggested Initial Implementation Checklist for the Criteria” complementing the list of criteria created by the HLTF and approved by the WG is, by itself, a great achievement. The checklist covers many aspects of the criteria. However, when used together with the list of criteria, its organization appears disordered. This is due to the fact that the indicators are structured like the criteria along the categories of “structure, process and outcome”, equivalent to the method used by OHCHR and others in the development of other human rights indicators. Yet, this composition of indicators proves ineffective for the three categories of indicators do not apply to the corresponding categories of criteria. It is therefore proposed to restructure the list of suggested indicators along the categories “indicators for the developing countries, for the donor countries and for both”. It seems that such a composition much better supports the specific evaluation of bilateral as well as multilateral development partnerships. 5) Develop Effective Measurement Mechanisms

The last two recommendations hint at the difficulties of assessing the efforts of operationalizing the RtD as “success” or as “failure”. In short, how many indicators per criterion have to be fulfilled to consider a certain criterion to be accomplished? How many criteria have to be realized for a development partnership to be successful from the perspective of the RtD? As long as the criteria and indicators do not provide any guidance on this, it will be difficult to use them as guidelines for measuring progress on the RtD (Kirchmeier/Lüke/Kalla 2007, pp30f.)

For the partnership in question, but also widely applicable to similar partnerships, the study came up with the following recommendations:

The overall conclusion from the Kenyan-German example is that the “RtD compatibility” of a bilateral partnership can be reached without changing the whole system of a partnership – just in form of some specific additions. As seen above in the evaluation, the areas that needed to be addressed are - linkages to mechanisms and commitments for human rights claims/remedies (relating to

indicator 11), taking into account the human rights obligations as given in the Constitutions and resulting from International Covenants signed by the parties,

- intensified focus on standardized outcome indicators (relating to indicator 16), and promotion of statistical capacity (this relates to baseline information that will strengthen accountability and allow for further counter-corruption measures)

- the question of discrimination (relating to indicator 15), - development of aims for the partnership improve the situation of the most marginalized, e.g.

through the promotion of social reforms. (Kirchmeier/Lüke/Kalla 2007, p.29.)

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Conclusion

This lead to the conclusion that the matrix was helpful to implement the RtD in a partnership, but also, and in this context more importantly, that the RtD in reality could contribute “value-added” to development partnerships, which means that it indeed would be a tool to strengthen the ESCR of the population concerned. Firstly, because it binds both sides of the partnership to a national plan, aligned with the human rights obligations of the state concerned and attentive to the needs of the whole population. In this regard it also requests the partners to address obstacles in the “enabling environment” for such policies. Secondly, because the criteria (when adapted to the context) can be seen as a list of due diligence when designing or reviewing partnerships – as shown in the example where the RtD criteria revealed areas that had been neglected by the partnership in its current form. It also became apparent that the RtD approach would strengthen all human rights, beyond those that are directly influenced by financing though the partnership. For other partnerships this suggests that, in view of using the partnership to realize ESCR, it would be helpful to consider the RtD criteria during the establishment and review of partnership programs and agreements, while defining and adjusting indicators and benchmarks for the specific case. Yet, the fact that those indicators and benchmarks are not clearly defined so far might be a further point for states to hesitate in embracing the RtD. Research is underway to provide practitioners with usable human rights indicators (e.g. Riedel 2006 and his contribution to this conference) which might make reluctant countries more comfortable with this thought. To come back to the general environment in which such partnerships have to be seen, it has to be mentioned again, that for a real and complete implementation of the RtD, the international system has to be addressed – is it the enabling environment that the RtD requires? Each development partnership that claims to be in line with the RtD should additionally identify external obstacles and suggest how to alter the hindering aspects in the international system. Until all partners openly face this challenge inside and beyond the particular partnership or project, the political disputes will continue and misperceptions of the RtD will, sometimes intentionally, prevail.

Annex (A/HRC/4/47)

CRITERIA FOR PERIODIC EVALUATION OF GLOBAL DEVELOPMENT PARTNERSHIPS FROM A RIGHT-TO-DEVELOPMENT PERSPECTIVE The criteria for periodic evaluation include: Structure/enabling environment (a) The extent to which a partnership contributes to creating an environment and supports a process in which all human rights are realized; (b) The extent to which partnerships for development promote the incorporation by all parties concerned of all human rights, and particularly the right to development, into their national and international development strategies, and the extent to which partner countries receive support from international donors and other development actors for these efforts; (c) The extent to which a partnership values and promotes good governance, democracy and the rule of law at the national and international levels; (d) The extent to which a partnership values and promotes gender equality and the rights of women; (e) The extent to which a partnership reflects a rights-based approach to development, and promotes the principles of equality, non-discrimination, participation, transparency and accountability;

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(f) The extent to which a partnership ensures that adequate information is available to the general public for the purpose of public scrutiny of its working methods and outcomes; (g) The extent to which a partnership respects the right of each State to determine its own development policies, in accordance with its international obligations; Process (h) The extent to which, in applying the criteria, statistical and empirically developed data are used, and, in particular, whether the data are disaggregated as appropriate, updated periodically, and presented impartially and in a timely fashion; (i) The extent to which a partnership applies human rights impact assessments and provides, as needed, for social safety nets; (j) The extent to which a partnership recognizes mutual and reciprocal responsibilities between the partners, based on an assessment of their respective capacities and limitations; (k) The extent to which a partnership includes fair institutionalized mechanisms of mutual accountability and review; (l) The extent to which a partnership provides for the meaningful participation of the concerned populations in processes of elaborating, implementing and evaluating related policies; programmes and projects; Outcome (m) The extent to which policies supported by a partnership ensure the constant improvement of the well-being of the entire population and of all individuals, on the basis of their active, free, and meaningful participation in development and in the fair distribution of the benefits resulting therefrom, as required by article 2, paragraph 3, of the Declaration on the Right to Development; (n) The extent to which the priorities set by a partnership are sensitive to the concerns and needs of the most vulnerable and marginalized segments of the population, and include positive measures in their favour; (o) The extent to which a partnership contributes to a development process that is sustainable and equitable, with a view to ensuring continually increasing opportunities for all. Works Cited Franciscans International (2003), The Right to Development: Reflections on the Right to Development – Reflections on the First Four Reports of the Independent Expert on the Right to Development, FI, Geneva. Kirchmeier, F., Lüke, M., Kalla, B. (2007), Towards the Implementation of the Right to Development. Field –testing and fine-tuning the UN criteria on the Right to Development in the Kenyan –German Partnership, Friedrich-Ebert-Stiftung and Gesellschaft für Technische Zusammenarbeit, Geneva and Eschborn. Kirchmeier, Felix (2006), “The Right to Development – where do we stand?”, FES Occasional Papers, N° 23, Friedrich-Ebert-Stiftung, Geneva and Berlin. Marks, Stephen P. (2006), “Misconceptions About the Right to Development”, Development Outreach, Vol. 8, N° 2: Human Rights and Development, World Bank Institute, Washington. Marks, Steven P. (2003), Obstacles to the Right to Development, Harvard University, Boston. OHCHR (2006), Frequently asked questions on a human rights-based approach to development cooperation, United Nations, New York and Geneva. Riedel, Eibe (2006), Messung von Entwicklungen bei der Realisierung des Rechts auf Nahrung durch Indikatoren: Das „IBSA“–Verfahren, Universität Mannheim. www.un.org/millenniumgoals/goals.html

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KeyNote Address | Ana Gomes | MEP AVAILABLE SOON

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4. CULTURAL RIGHTS Chapter Intro

by Susana Sardo

AVAILABLE SOON

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Sound praxis, political puzzles, and cultural rights; perspectives from a collaborative effort in Rio de Janeiro

Samuel Araújo – Professor, Federal University of Rio de Janeiro

This paper will focus on the potentials of and obstacles to research on sound practices based on

dialogic collaboration between academia and community organizations—i.e., one centered on the reflexive action of members of the researched social context and having the “foreign ethnographer” as mediator—in engaging subjects directly affected by many forms of violence in reflecting critically upon their daily experiences, and conceiving proactive alternatives to perverse social inclusion in the world. Such potentials, as one will argue, may not only come to terms with problems in research ethics, “returning” concrete contributions to the researched social bodies—in the manner of so-called “applied” or “public sector” ethnomusicology”—but also build significant epistemological bridges between “local” and “foreign” analytical perspectives toward a renewed concept of citizenship.

On Violence and Culture in Rio: Selected Theoretical Perspectives

Many analysts agree (e.g., Zaluar 2004, Zaluar and Alvito 2004, Misse 1995, Machado da Silva 1999) that the growth of indicators and the predominant representations of violence, invariably associated with the hegemony of the drug traffic in the city’s underprivileged areas, configured together a new situation in Rio for the last decades (Misse 1995), leading to alarming references to the existence of a criminal or extra-legal State-within-the-State or, in daily conversation, an Estado paralelo (a parallel State). Socio-scientific studies have somehow deconstructed this ideologically explored, demonizing image that attended primarily the generalized fear among the middle- and upper-strata, pointing instead toward an interaction of social factors—among which: extreme poverty and inequality; structural unemployment; relatively unstructured, though organized, factions recklessly controlling drug retail points and ambitioning new ones; police indiscriminate violence against the non-criminal poor; strongly organized, international drug and arms trade; societal complicity, through State corruption and civilian self-consumption—making up a very complex puzzle of not easy solution.

The more visible signs of violence, claim analysts, have more to do with the above noted small-scale, relatively autonomous and precariously structured—although deadly predatory—organizations, each of which identified with one of more encompassing penitentiary protection schemes known as “comandos”.47 These retail understructures provide the local links to the more sophisticatedly structured international arms and drugs trade, tied to larger schemes of State corruption. The comandos, through their small-scale local organizations in the poorest and more disenfranchised residential areas, such as the so-called favelas (slums)48, self-define real and imaginary boundaries for circulation and sociability within an area officially defined as a residential unit (i.e., a neighborhood or administrative region). Crossing these boundaries put the lives of individuals at risk such as happens when a resident that lives in an sub-area controlled by a given comando goes to a party in a neighboring place under another one’s control, or when relatives are set apart simply by living in areas respectively controlled by concurring organizations.

Another important dimension of this violent escalade over the control of drug traffic retail points

is, as Misse (1995) points out, the degree to which it plays a role in socially orchestrated and long-lasting patterns of incomplete waging of the Brazilian labor force and of selective assimilation of society to citizenship. This makes of profitable illicit activities, whatever their contents, a permanent possibility of criminal violence escalades (drugs may even be an ephemeral phenomenon here, as alcohol once was in the US).

One of the more evident results of these accumulating inequalities has been the emergence of socially disenfranchised residential areas in virtually every Brazilian metropolis, many of which labeled as favelas (slums) after one specific settlement in 19th-century Rio de Janeiro. Through their century-old history favelas have been subject to dominant elites’ simultaneous representations of fear (of the “dangerous classes”)

47 At least three comandos are recognized by the police and criminals alike: the Comando Vermelho (Red Commando), the Terceiro Comando (Third Command) and the Amigos dos Amigos or ADA (Friends’ Friends). The specialized literature also indicates that the name comando itself was first used by the police during the military dictatorship, a time in which “regular” and “political” prisoners had regular interactions in the penitentiary system. 48In an alert against a “drug traffic dictatorship” one Brazilian newspaper of nationwide circulation reported in 2002 that 1,092,783 people living in Rio’s 605 favelas, i.e. 18.6% of the population or one in five of the city dwellers, have to respect the drug dealers’ laws. (see O Globo, Rio de Janeiro, 02/20/2005, p. 18).

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and admiration (for its vigorous and singular culture, and its music in particular), leading to policies of (failed) eradication and (relatively effective) relocation (see Zaluar and Alvito 2004). In the neo-liberal 1990s, argues French sociologist Loïc Wacquant (2004), deindustrialization and the consequent deterioration of slum-based, post-world-war institutional nets led to the hegemony of drug-dealing as an institution in those areas.

A word should also be said here on the history of NGOs in Rio de Janeiro and Brazil. While their activity can be spotted since the early 20th century, holding the idea of complementing actions in areas uncovered or badly attended by the state, in the beginning they usually consisted of philanthropic societies run by foreign religious organisms. It is only in the 1980s that NGOs with widely diversified focuses (ecology, self-sustainability, cultural survival, arts, etc.) and not necessarily directed to the poor spread throughout Brazil. A more recent development in the last ten years or so has been the emergence of differently focused community-based NGOs—i.e. founded by residents and having their headquarter locate within the community—in rural settings, inner-city residential areas and other contexts (see Carvalho 2003).

One relevant development to the particular case discussed herein is the emphasis of various so-called “social projects” on the arts, music included, which are usually sponsored by businesses and run by NGOs. They are aimed primarily at offering alternatives to violence and exclusion through activities which are conceived as both meaningful and self-fulfilling, and eventually at opening windows to artistic professions.49 Exceptions notwithstanding,50 they are oftentimes proposed by an outside artist or an artistic collective to the NGO, which credibility becomes a major asset in the search for funding. It is worth noticing that the social projection of the proponent artist may often help even more to open the right doors, thus empowering the proponent vis-à-vis the host NGO or the community itself.

Uneasy Steps: Dialogues Between Academia and its “Internal Others” The first research initiatives leading to the collaboration between the LE-UFRJ and CEASM involved a series of discussions among teachers and students within a university-based ethnomusicology program, reflecting upon critical debates in anthropology and ethnomusicology—crisis of representation (see Clifford and Marcus 1986, Marcus and Fischer 1986), place and value of native discourses and of field experience in theory (Barz and Cooley 1997) etc.—and trying to devise experimental research directions and methodologies. Small-scale studies mainly conducted by students resulted in theses (Cambria 2002, Marques 2003) which attempted to combine more conventional participant observation and dialogical forms of ethnography with careful negotiation of research focus and of forms of diffusion. As such discussions became more solid and partial results became visible, several community-based NGOs in Rio looked for the university’s ethnomusicology lab, in search of partnerships toward the establishment of local databases on musical practices, perhaps the more palpable product of previous projects.51 For a variety of reasons, the first partnership in Rio was established with CEASM (Center for the Study and Solidarity Actions of Maré), a NGO born within one a Rio de Janeiro residential area highly stigmatized by the favela-exclusion-traffic-violence equation. A conglomerate of at least 11 distinct sub-areas, comprising significant social, economic and demographic distinctions (sizing from 8,000 to 25,000 people each), Maré as a whole is home to about 135,000 people, comprising relocated slum populations of Rio, unskilled migrant labor (the majority of which from Northeastern Brazil), and even an estimated population of 1,000 Angolan young students and middle-aged war refugees. High rates of unemployment and the profitability of drug-trafficking delineate the broader social contours in the Maré area, leading to a harsh routine of intermittent police raids, drug wars on territories between factions, and traffic-dictated curfews. Concurrently, CEASM has been one of the highest visible community-based NGOs in Rio, with a considerable infra-structure (classrooms, well-equipped administrative offices, computer rooms, library and various types of database) and a strong focus on the preparation of Maré youngsters to the yearly admission

49 It is worth noticing too that there is a long-standing tradition in Brazil of music as a means of professionalizing and upward social mobility for the poor, traceable to 18th-century religious musical institutions (Lange 1979) and still verifiable in public conservatories and university programs to these days (see Silva 2005). 50 One significant exception, Grupo Cultural Afro-Reggae, was founded in 1993, after the massacre of 21 Vigário Geral (another favela) residents in a police raid, by a group of community youngsters interested in musics of the African diaspora. It defines its mission as “to promote social inclusion, using the arts, Afro-Brazilian culture and education as tools to create bridges to unite differences and serve as foundations to sustainability and to exercising citizenship. (http://www.afroreggae.org.br/sec_missao.php) 51 This also has to do with the financing agencies’ growing demands of external qualitative evaluation as an indispensable part of any application for funding.

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exam in public universities (reputedly the best in Brazil and free of charge). Its main focus requires, in its representatives’ perception (middle-aged, university-trained residents or former residents of Maré), that exam-centered skills be complemented with other skills that may enrich the experience of youngsters. CEASM’s expectations from our joint project, aimed at the creation of a database of the Maré’s musical output, may perhaps be summarized as the development of a new program that might reinforce both the subjects’ self-esteem and experience in another musical program or yet in other related areas such as dance, history, story-telling, etc. Intense discussions with NGO representatives (educators, historians and administrative personnel) led to the development of a one-year research project restricted to two sub-areas of Maré and involving three basic stages: 1- twice-a-week encounters with a group of 24 Maré-resident youngsters selected among high-school students (20) and university students (4), aimed at the development of a conceptual basis as well as of research focuses and tools. Following participatory action models, but particularly the one proposed by Brazilian educator Paulo Freire outlined below, the university researchers would act as mediators of discussions among the youngsters on relevant musical subjects and categories, as well as on strategies for music research, indicating relevant readings upon the group’s request and facilitating the actual documentation through the use of digital technology; 2- the building of a public database within Maré, located at the NGO headquarters; and 3- the development of outreach programs aimed at its residents and at the general public, all of which involving certain specificities such as questions on the range and type of diffusion). Freire’s Dialogical Pedagogy and Reflexive Ethnomusicology

Paulo Freire criticizes conservative pedagogical practices in their observed dichotomy between the active role exclusively attributed to educators, and the experience of the ideal subjects of such process, the students.

These have been termed “banking” practices by Freire (1970), implying that they reduce the

experience and cognitive world of students to a sort of latency state, “waiting for” knowledge pre-formatted in socially distant contexts and, in many instances (e.g., among the socio-economically underprivileged) contrary to the enhancement of the students’ autonomy. It is perhaps unnecessary to restate here the many paradoxes of such a charade, but perhaps one example would suffice: in many countries, such as in Brazil, the relative decrease of illiteracy, instead of contributing to better educational levels or social mobility, has mainly contributed to the increase of so-called “functional illiteracy” in which the use of reading and writing goes not much beyond turning printed letters into sounds or signing an ID card.

So one should notice here the almost absolute symmetry between two cognitive processes of interest

to us here: in ethnomusicological research, knowledge (a “strange” musical culture) is given as already pre-existing before an external agent’s (the researcher’s) intervention. He/she will make initially a great effort toward encoding it in terms simultaneously intelligible to the respective cultures of both the researched (to the extent possible, their “native musical theory”) and the researcher (the so-called “theory of music”, almost always on the axis of Western concert music), to finally be able to decode its meaning in terms exclusively intelligible to the researcher’s own culture (producer of the only “true” theory, or theory as such), since the researched will hardly have access to—or interest in—the final research product.

In the second case, educative action, knowledge (in the particular case under study, “music” also

approached as something strange to the students’ experience) is also understood as an entity pre-encoded in terms of the external agent’s, the educator’s culture (in our specific case, music with “educational content” endorsed by a school system), which will supposedly have to decode it in terms intelligible to the student-objects (supposedly lacking “musical knowledge”). It is worth noticing here that this is precisely the basic premise on which the majority of arts programs are conceived as tools for social inclusion and as alternatives to violence.

Therefore, in both situations, commonsense would have the external agent as the active term of a

desirable cognitive equation: either between researcher-produced and researched-produced knowledge, or between knowledge already deposited in the educator and knowledge to be deposited in the student. As stressed by Paulo Freire (1970, 1996)as well as by critical anthropology and ethnomusicology, both equations will tend to fail as wider the gap between the experience and vocalizing power of the different cultures impeded of developing a real dialogue, or as wider the denial of a more active role on the part of the researched or of the student.

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At this point, the following issues are timely: what would happen if we could foresee another world

in which both research and educational action reserved a more active role to both the researched and the students? (No one educates no one, insists Freire in several opportunities) Could one imagine the production of another kind of knowledge in such a transformed world, perhaps qualitatively superior to traditional (in the sense of disciplinary traditions) modes of knowledge-building, ones Freire terms “banking” modes? In this case, would distinctions between research and education, between scientific and applied research dissolve? SHOW VIDEO (8’)

In conclusion I will show a short video made by the Maré research team back in June, 2005, which

addresses the process of group formation in the framework discussed above, stressing the initial discomfort of all interacting subjects on the face of mutually misleading pre-assumptions, to the negotiation and auto-definition of research focuses by Maré residents. As argued elsewhere (Araújo et alli, 2006a, 2006b), violence, both physical and—perhaps above all—symbolic, emerges in the video not simply as the representations of middle-and upper-class fear of the poor translated in the usual terms of media stereotyping but as a concrete part of daily social life as expressed in the discussions through residents’ perspectives. Another crucial issue in this video, in my viewpoint, is the contrasting reflexive experience of youngsters in dialogical contexts, and in which ways their daily experience comes to play a decisive role in the knowledge-building process. This should remind us, as done in a recent article by Isaura Botelho, the profound abyss standing between, on one side, bringing a self-enclosed cultural ideal to those who supposedly lack them and should have granted access to it, and, on the other, granting everyone participation in the formulation of socially inclusive cultural rights. References Cited Araujo, Samuel et alli 2006a “Conflict and Violence as Conceptual Tools in Present-Day Ethnomusicology; Notes from a Dialogical Experience in Rio de Janeiro.. Ethnomusicology. 50(2): 287 - 313. 2006b “A violência como conceito na pesquisa musical, reflexões sobre uma experiência dialógica na Maré”. Transcultural Music Review 10. (Available at http://www.sibetrans.com/trans/trans10/indice10. Last access: 04/05/08) Barz, Gregory and Timothy Cooley (eds.) 1996 Shadows in the Field; New Perspectives for Fieldwork in Ethnomusicology. Oxford: Oxford University Press.

Botelho, Isaura 2007 “Políticas culturais;discutindo pressupostos”. IN Gisele Marchiori Nussbaumer,

ed., Teorias & políticas da cultura. Salvador; Ed. da UFBA; pp. 171-180. Cambria, Vincenzo 2002 Música e identidade negra. O caso de um bloco afro carnavalesco de Ilhéus. M.M. thesis. Rio de Janeiro: Universidade Federal do Rio de Janeiro. Carvalho, José Murilo de. “Introdução”. In Dulce Chaves Pandolfi and Mário Grynszpan. A favela; depoimentos ao CPDOC. Rio de Janeiro: FGV, 2003. Clastres, Pierre 2004 A arqueologia da violência. Trans. Carlos Eugênio Marcondes de Moura. São Paulo: Cosac e Naify. [reprint from 1982 edition] Clifford, James and George Marcus (eds.) 1986 Writing Culture: The Poetics and Politics of Ethnography. Berkeley: University of California Press. Freire, Paulo. 1970 Pedagogia do oprimido. São Paulo: Editora Paz e Terra, 1970. 1996 Pedagogia da autonomia. São Paulo: Paz e Terra, 1996. Lange, Francisco Curt

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1979 História da música nas irmandades de Vila Rica: Freguesia de Nossa Senhora do Pilar do Ouro Preto. Part I. Publicações do Arquivo Público Mineiro, v.1. Belo Horizonte: Imprensa Oficial/Conselho Estadual de Cultura. Machado da Silva, Luís Antonio 1999 “Criminalidade Violenta: Por Uma Nova Perspectiva de Análise”. Revista de Sociologia e Política 13:115-124. Marcus, George E. and Michael J. Fischer 1986 Anthropology as Cultural Critique. An Experimental Moment in the Human Sciences. Chicago: Chicago University Press. Marques, Francisca 2003 Samba de roda em Cachoeira, Bahia: Uma abordagem etnomusicológica. M.M. thesis. Rio de Janeiro: Universidade Federal do Rio de Janeiro. Misse, Michel 1995 “Crime e Pobreza: Velhos Enfoques, Novos Problemas.” IN Misse et alli, O Brasil na virada do século – o debate dos cientistas sociais. 1st. ed. Rio de Janeiro: Relume-Dumará; p.78-89. (Available at: http://www.necvu.ifcs.ufrj.br/arquivos/CRIME%20e%20pobreza.pdf Last access: 02/09/2005) Silva, José Alberto Salgado e 2005 Construindo a profissão musical: uma etnografia entre estudantes universitários de música. Ph.D. dissertation. Rio de Janeiro: Universidade Federal do Estado do Rio de Janeiro. Wacquant, Löic. 2004 "Ghetto." In International Encyclopedia of the Social and Behavioral Sciences. Ed. Neil J. Smelser and Paul B. Baltes. Londres: Pergamon Press, rev. ed. 2004.

Available at: http://sociology.berkeley.edu/faculty/wacquant/ wacquant_pdf/GHETTO - IESS.pdf .[Last Access: 10/10/ 2004].

Zaluar, Alba 2004 Integração perversa; pobreza e tráfico de drogas. Rio de Janeiro: FGV. Zaluar, Alba and Marcos Alvito (org.) 2004 Um século de favela. Rio de Janeiro: FGV.

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Promoting Cultural Rights by an Empowerment Process

Irene Santos & Fátima Marques - Cultural Association Moinho da Juventude

Youngsters and adults who live in the stigmatised neighbourhood of Cova da Moura are mostly of African origin. Together they have the energy and vitality to:

- carry on and enjoy their own culture, in a wide sense of the word, within their community; - go out and visit other towns, cities, countries; - invite and welcome friends to their cultural activities: Finka Pé Batuque Group, Kola San

Jon, Funana Dance Group, Contemporary Dance, graffiti artists and hip hop groups; - incorporate their culture in an economic empowerment process that set up the “Roteiro das

Ilhas” – The Island Tour - to boost business in the neighbourhood’s restaurants, hairdressers and other establishments.

We would like to talk about how we have managed to do this, the problems we have encountered and the new directions we have discovered. The Finká Pé Batuque Group was set up in 1987 on an informal basis by a group of women who, as they waited their turn to fetch water at the fountain, would beat a rhythm and sing and dance to it. When they started in the 1980s, their children at first felt uncomfortable about batuque. Though they enjoyed it within the context of the neighbourhood, they were afraid the Portuguese and others would deride and reject it. Their attitude changed when the women performed in Chapito in 1991 and in ACARTE – Gulbenkian in 1991 and the group was recognised for their cultural worth, which reflected in the cachet they got. The manner in which their parents’ culture was received by the Portuguese gave them self-esteem and confidence to get to know other cultures. The group usually performs at christenings, weddings and other important events where they pass on values, reflections and advice to younger generations. Since their “official or formal” recognition, they have performed not only in the neighbourhood but also at congresses and meetings as well as in Cape Verde, Belgium and Spain. Nowadays the issue of recognition is quite a different matter and their fellow Cape Verdeans are very proud of them. “The women in the Finka Pé group are carrying on an eighteenth-century tradition and want to transmit the importance of batuque that was performed in wedding and christening parties. They are aware of their cultural identity, one that was not constructed on a negative note, for or against some European influence, but rather on an affirmative note – for what it is. Batuque is about integrating the body with feelings: dancing and singing they express their fears, concerns and anxieties, they give advice and a message of hope, they reflect on the role of women. Their daily lives merge with this art form, an art of the body as the absolute life experience of emotions, thoughts, feelings and problems. The Finka Pé women transmit their art to their children, neighbours and friends and call for cultures to draw together.” The group are now the renovators of this culture. While, on the one hand, there is a repertoire of batuque songs that they have kept alive by singing them, on the other hand, younger women join them to become batucadeiras themselves, which has greatly helped invigorate their cultural patrimony and ensures that it continues. New music appears as a result of life experiences to then become part of the musical repertoire. Thanks to batuque, not only is there a transmission of cultural values but there is also an emotional release brought about by repeatedly singing together about their joys and sorrows, their families, work and health and this proves a therapeutic exercise. The Spanish director Carlos Saura’s FADO was released in 2007. The film was shot in a studio in Madrid and starts with a group of 60 people from the Cova da Moura neighbourhood taking part in a Kola San Jon parade. It was a good opportunity for half the members of this group to get their

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papers in order, which had the extra advantage of permitting several people to look for work afterwards. Kola San Jon is a traditional Cape Verdean parade, originally from the São Vicente and Santo Antão Islands, that celebrates Portugal’s “Popular Saints” (St Anthony, St John and St Peter) in June. The parade, which winds its way through the neighbourhood with regular stops outside people’s houses, has taken place in the Cova da Moura neighbourhood since 1992 as a celebration of fertility and harvesting and life in a group and community. Kola San Jon has for several years now also taken part in Lisbon’s celebrations on the 12th June, the eve of St Anthony’s Day. Sabura is the name of the project to promote traditional culture in the Cova da Moura neighbourhood. As well as the Finka Pé and Kola San Jon groups, Sabura promotes the Roteiro das Ilhas, which offers organised visits to the neighbourhood’s commercial activities. Visitors not only get a unique entry into a live culture but they also contribute towards making these establishments more financially viable. The economic aspect of these visits is of great importance to the empowerment programme developed in the Associação Moinho da Juventude and especially the Sabura project. In effect, at the start it was the young people working in Sabura who contacted and invited the owners of these establishments to take part in the project, but now it is the establishments themselves that seek out Sabura in order to take part in it. They do so because they see the advantages these now regular visits or tours have brought others. They have improved the appearance of their establishments, and enjoy talking with the public about their work and how they got to where they are, their journey and aspirations. With regard to the younger generation, we firmly believe in vocational training. We recently had the opportunity to provide some filmmaking training to a group of young people. The producer of “Até ao fim do mundo” had the idea of shooting a fictional film in Cova da Moura and made a proposal to Moinho da Juventude. A group of young people would get training in filmmaking and later in acting. The first part of the training has already taken place. A group of boys and girls learnt to use a film camera and turned their footage into documentaries about their chosen topics. They got together in small groups and decided to approach subjects such as dropping out of school, entering the job market after serving a prison sentence and other matters. They sought help in the neighbourhood and from people they knew to reveal their concerns. The resulting works were considered very good and RTP bought these documentaries. We should underline the importance of the benefits that each of these projects leaves behind in the Cova da Moura neighbourhood and of the work with younger generations with a view to providing them with a sense of responsibility and, if possible, vocational training and jobs. Vocational training permits the acquisition of knowledge, the recognition of personal and group skills and the possibility of their use in entering the job market. With respect to artistic and cultural activities in particular, these new experiences introduce innovative possibilities for young people to express themselves using contemporary codes that not only open them to a wider audience but also renovates the cultural activity itself. Likewise, we believe that when a culture or customs are asserted in this way, two movements are involved that only appear to differ: on the one hand, there is a deepening of ancestral roots in the process of constant interchanges between the ancient possessors of this patrimony – the older generations; and the introduction and dissemination of the culture in which different influences merge, and a new form is created and developed by the neighbourhood’s younger generations, who by reinventing cultural forms of expression make them more viable from a financial point of view.

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Cultures, Rights and Religions. Small contributions from ethnography to great anthropological challenges

Maria Cardeira da Silva – Professor, New University of Lisbon

The title of my paper may seem a very academic one. Given my training, part of it will in fact reflect the anthropologists’ debate about universalism versus cultural relativism. But my aim is to demonstrate - by means of fragments of intense cultural dialogues, for instance those between “Western thought” and Islam - how concomitance, contingency and context (three things ethnography won’t forego), are more useful to focus on than culture or religion per se, when we intend to frame answers to the challenging questions arising from the implementation of Human Rights. To do this, and in pursuit of reachable objectivity, I will ask for a moment of moral suspension insofar as that is possible. One of my students – who has a nose piercing – is to go soon to Mauritania to study emerging NGOs of young people in that country. She told me that she was worried because another young anthropologist, who was already working there, had warned her that it might not be a good idea for her to walk around the streets of Nouakchott with a nose piercing. I said that I thought it wasn’t just anthropologists who had developed the capacity to accept differences and subsequently she had to come to her own decision about whether to keep the piercing or not and base it only on her previous knowledge of Mauritania society and the principle of mutual gracious hospitality: if she thought that, by taking it off, she would inflict greater symbolic violence on herself than keeping it-on would inflict on her hosts in Mauritania, then she should keep it. If not, she should take it off. As we all know, liberty has its limits and choices have to be made. This seems a universal principle to me. The problem is - as we also know - that the extent of these limits and choices are not universal. Mauritania is one of the Islamic countries that observe a ritual that most infringes on the application of Human Rights: female genital mutilation. I’ve never carried out ethnographic research on this practice. But the same young anthropologist, who had warned his colleague about the risks of a nose piercing, had met many modern – and this can only mean contemporary - Mauritanian girls outside his work-related activities. He told me in confidence (which I hope not to betray here) that these girls said that the genital cut was part of the configuration of their femininity and their sexuality, just as circumcision was part of the construction of masculinity of their men. This is young people’s talk and I don’t intend to pry. Let us just keep in mind on a positive note that it seemed a friendly, intimate conversation despite the differences. But to do so, we should place it alongside another that is symmetrical to it and negative: I’ve also met Mauritanian Human Rights activists who were often consulted by European committee members seeking grounds to provide asylum for women trying to escape what they considered a brutal ritual. These reports and overlapping discussions occurred practically at the same time as I was invited to attend this conference. This was also when the International Day of Zero Tolerance against Female Genital Mutilation was being promoted and when the Portuguese Socialist Party put forward a bill - or project law - banning mouth piercing and any others close to veins, nerves and muscles. This legislation also foresaw the prohibition of permanent tattoos and any kind of body piercing for minors without parental consent. I’m obviously not doing ethnography here – ethnography is a far more thorough, thick and refined method that anthropology has been developing for over a hundred years of the discipline. But it seems to me that the mere presentation of these facts while evoking their concomitance, contingency and context (things ethnography will not give up) forces us to the first necessary shift of perspective for a deep reflection on the Rights we wish were universal. One that will put into perspective, from bottom to top, its application in situations that are shaped by numerous variables besides culture and religion. Both events – Day of Zero Tolerance against Female Genital Mutilation and the Portuguese Socialist Party’s pledge to stop permanent tattoos and body piercings of minors – got media attention. The first was neither commented on nor contested by Portuguese public opinion. The second event drew heated criticism for the Portuguese government’s meddling in individual freedoms. Yet both cases involved, or at least included if we take into account genital piercings, forms of mutilation as typified by the United Nations and the World Health Organisation that could eventually be inflicted on children (Type V). It’s awkward and tricky – unless as a private citizen - to talk about such extreme matters that have no easy answers. But it is our duty as scientists not to have taboos. What is revealed objectively in this situation is that similar practices are seen from different perspectives by the Portuguese public opinion, together with that of the medical profession, depending on whether they understood them or not to be “cultural” acts. “Ours” are not seen to be “cultural”. Tattoos and body piercings are not seen as cultural (even when genital).

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On the other hand, “genital mutilations” come with the culture, if not with the religion itself. This viewpoint stems from a culturalised vision of the world that empties the “other cultures” of individuals. People make our culture. Other cultures make their people. This is very obvious – also because, despite everything else, it’s less dramatic and draconian – when we speak about the veil, or rather, the veils that some Muslim women wear. Let me tell you how anthropology looks on the phenomenon. At first and until the mid-1970s, the prevalent character of attitudes towards veiling was in line with feminist discourse. This saw veiling in an essentialist manner as a form of male domination in a patriarchal culture. Then in a second phase, when people began to talk about culture as a form of resistance in the late 1980s and in the 90s, they discovered that the veil was often a symbol of gender identity assertion: it was a statement with regard to Muslim men rather than with regard to us non-Muslim as we always think in our ethnocentric manner. The veil subsequently emerged as a possible form of resistance. It was at that time that people also discovered that there could be different types of feminism other than the rationalist Western one. From this standpoint, feminism within evangelical Christian framework was also examined. New ethnographies nowadays, such as the one written by Saba Mahmood, that look at veiling and Muslim pietist attitudes in Egypt, go even further than that: they show how some women, by adhering to Islamic practices and discussion groups, are merely seeking paths and orientations to become “better people” in their own terms. They search for a virtuous self by means of the embodiment of cultural, but also social items in a process of moral self-cultivation. Veiling can be a disciplinary practice that constitutes devout subjectivities. However difficult it is for us, if we want to understand its meaning, we have to be able to look on it from a perspective beyond the resistance/subordination binary. In anthropology, the locus for observing veiling has moved from religion and culture to gender (women) and then to focus finally on the idea of person. The emphasis of approach has gone from domination to resistance and then to focus finally on the subjective construction of the concept of person which, among many other things (social class, country, life story…), is also culturally and religiously shaped. This shows that veiling does not always imply struggle, or resistance, in order to achieve freedom, though we may possibly like it to do so. I can say that during my own fieldwork it was only in one country, one town and in some cases one woman that I came across these kinds of veilings (when not linked with others involving models of femininity, local marriage markets and conjugality). It could be said, and should be said, that veiling in a non-Muslim majority context, like in Europe, has other features as well and gives rise to other kinds of problem. But if we begin to look at it with the same attitude as Saba Mahmood in Egypt – and see it first as a way of dress that might show women desire to become a better person and is consistent with this quest - we dispel at least the immediate fear it inspires if we think that these women wear the veil against us. Fear – when generated from ethnocentres– is the worst of all cultural traps. This perspective forces us also to withdraw from that culturalised map of the world that sees other cultures without people and our people without “culture”. As Bruno Latour said angrily but also to a certain extent rightly about the prohibition to wear the veil in France: “Entre le voile et le code vestimentaire, faut-il vraiment choisir? Si l'on décide de s'attaquer pour de bon au sexisme, n'est-ce pas toute la politique des corps qui demande à être dévoilée? (...)”. “Our” people also make use of what is called culture and/or religion in order to find ways to become better people. “Our women” have embodied habitus as well: they go to mass (wearing a veil until recently), they don’t eat meat on Good Friday, they go to the gym, dye their hair, go on diets, have cosmetic liftings and botox injections (when not genital plastic surgery). The church would also like to meddle in our most private personal practices. However, we don’t define ourselves as persons merely by – or in opposition to - our culture or religion. And now for those who have been hoping to find more strategy and less reflection in my words, I would say that typifying the veil as a mere cultural and/or religious indicator is to increase the political arsenal. It is to wrap up in political paper and throw back something that may well not possess that dimension and reach in the first place.

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The relationship between anthropology and human rights has never been peaceful or consensual. How could it, in fact, when it clearly entails a political position? In 1947 the American Anthropological Associated submitted the following statement: “Only when a statement of the right of men to live in terms of their own traditions is incorporated in the proposed Declaration, then, can the next step of defining the rights and duties of human groups as regards to each other be set upon the firm foundation of the present-day scientific knowledge of Man.” But this position, which emphasizes cultural relativism was never unanimous. And thirty years later, a as culture began to gain more political clout and economic value, anthropologists, who always monitored its uses, were the first to distrust it. Misgivings on the part of many anthropologists were intensified by the “culture talk” of the «clash of civilisations» t which had begun during the post-cold war era and increased after September 11th alongside with similar misuses of culture and religion by all sorts of fundamentalisms. It was within this framework that Leila Abu-Lughod wrote an article in 1991 whose title Writing against Culture is more iconoclastic than its contents. Warning that the fact of asserting differences – whatever they may be – opens the door to asymmetrical power, she suggests an emergency kit to guard against the misuse of culture. She includes 1) firstly the need to highlight more and more what she calls “connections”: emphasise what is common, what is shared, what lives side by side together, with a view to narrowing the differences and softening the borders of cultures that are highlighted in culturalist discourses. (This is the challenge that we are, in a way, accepting without taboos, when we dare to place side-by-side practices that we consider to be so far apart, such as, “genital piercing” and “female genital mutilation”; 2)secondly, the need to show the differences between theory and practice: paying attention to what people do, which is not always what they say nor what they say they do; 3) and thirdly, the need to produce and multiply in number ethnographies of the particular: contextualised portraits of the way culture and religion, as well as gender and age, are experienced together with other markers of identify such as class, nation, etc. Ethnographies of the particular may serve as anthropological weapons to combat all and any cultural essentialism or fundamentalism. Strategically speaking, I would have no problem in placing myself in line with this tactical humanism (as Leila Abu-Lughod calls it): an humanism in which humanity is understood as “sociality” and “co-presence” and which therefore should have its inspection more focused on the level of social and political relations than on its cultural manifestations. For a reflection explicitly aimed at informing contextualised implementation of Human Rights, I would add to her kit some insights that ethnography always avails itself of to focus on issues; 1) concomitance – to view others and ourselves concomitantly in their and our cultural acts; 2) contingency – search for what may circumstantially spark off, or re-enact, certain cultural traits instead of looking at culture (or religion) in a static way as an explanation for man’s acts; 3) context – not to let culture (or religion) conceal the social, political and economical context, local and global, in which a specific act is produced and interpreted. So, do I speak against anthropology when I say that cultural relativism needs to be relativised? No. I’m saying that anthropology, particularly ethnography, is very useful precisely in order to monitor the uses and abuses of culture – “here” and “there”, or rather, everywhere. I’m saying that ethnography - from being a necessary method to confirm cultural relativism - has become necessary to objectify relations between universal principles stemming from international organisations such as the United Nations and its application and applicability in specific cultural and social contexts. These organisation and principles are also cultural and can subsequently be approached ethnographically as well. I’m saying that this edifice itself – wich has the Universal Declaration of Human Rights as its touchstone, and is supported by its numerous conventions and committees, its relations with states and NGOs, its doxa and own language - is also one of the most important twentieth-century cultural constructions. And that one of its more recent canons, the importance of creative diversity, however well-intentioned, brings to this edifice all the tension that has existed these last few centuries in the West with its relations with the Rest. Seeing that anthropology sprang from that tension, it’s only natural that it’s well equipped to observe it, in the same way that it has a trained eye for other cultural facts.

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It’s true that the kind of knowledge anthropology offers – and the ethnography it proposes as a prior condition to any sustainable and contextualized policy– can be awkward for some. A certain pragmatism is required to solve problems that are also social and individual and subsequently have little sympathy with its line of argument, especially when we look at them case by case. Ethnography may not be well equipped to give urgent and global answers, but it is clearly indispensable in order to foresee the side effects of bad answers. It’s a modest and thankless task. But in the midst of so much noisy “culture talk”, it is gaining some importance. MAHMOOD Saba, 2005. Politics of Piety, Princeton, NJ: Princeton University Press. ABU-LUGHOD, Lila, 1991 “Writing against Culture”. In Recapturing Anthropology: Working in the Present. Ed. Richard Fox. Santa Fe, NM: School of American Research Press, pp. 137-62.

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5. CIVIL SOCIETY VOICES IN THE PROMOTION OF ESCR Chapter Intro

The papers contained in this chapter raise the profile of civil society’s important role in tackling economic, social and cultural global changes, in the implementation of cooperation programmes and in the promotion of solidarity and tolerance universal values. A common feature in all presentations is the acknowledgement of the need to foster civic participation and permanent innovation of procedures and of relationship between administrative bodies, civil society and other agents at a wider level. The issue of governance of urban spaces is also under scrutiny, especially the enhancement of cooperation between public administration and civil society and the development of active citizenship, based on the sharing of perspective and prospective.

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Places/spaces of celebration and protest: citizenship, civic conversations and the promotion of Economic, Social & Cultural Rights

Bryan Massam - Emeritus Professor, York University Toronto & Brian Hracs - PhD student, University of Toronto

1.0 Introduction

We suggest that the topics covered in this paper will have appeal to planners, bureaucrats, politicians, NGO’s and citizens who are interested in encouraging civic conversations to protect, enhance and ensure a decent quality of life (QOL) for all, both now and in the future. The promotion of conditions which are propitious to ensure the protection of economic, social and cultural rights (ESCR) for all citizens is a worthy project for Europeans as the enterprise of the European Union advances into the 21st century. The promotion of ESC Rights suggests there are WRONGS that need to be rectified. Can civic conversations bear witness to the wrongs, militate against apathy and ignorance, and help overcome indifference and fear of tackling the wrongs? The notion that active and widespread participation by citizens, in the political and administrative life of a country, is a recent one in human history, yet the view that citizens have rights to speak truth to power is long standing. We assert that civic conversations among citizens can make positive contributions to democratic involvement to protect and enhance rights of all kinds. Civic conversations and activities by individuals can count and make a difference, even though some feel that the state is controlled by powerful elites, or by bureaucrats, or by those large private corporations who some assert seem to command excessive control over events.

Two basic propositions are offered in this paper as our starting point in the discussion.

First, the protection and improvement of economic, social and cultural rights for citizens requires inter alia the promotion of civic conversations among citizens in the EU as a requisite obligation of citizenship.

Second, that places/spaces can contribute to opportunities for civic conversations regarding attitudes and policies that relate to ESCR and outcomes that influence sustainable quality of life in Europe.

In the body of the paper we will give examples of places/spaces to clarify this generic term. For the

purposes of this paper the concept of civic conversation embraces basic elements. The conversations are among all citizens, not just those in cities, and typically include matters that concern the individual in the context of the state, and other citizens, whether family, friends, colleagues, neighbours or strangers. The conversations may be face-to-face or via electronic means and the Internet, for example.

Hedges(2008, 175) provides succinct and provocative views of the ways that spaces/places have been

redefined that challenge today’s citizens to be engaged in effective civic conversations.

“We have been robbed of the physical spaces where we could once carry out meaningful discourse and debate, where we could participate in our society as citizens. Community centers, village squares and town meetings, the public spaces that made democratic participation possible, have been replaced by privatized spaces, by shopping malls, where we are permitted to enter as consumers and forbidden to enter as citizens. The privatization of public space has pushed us into the lonely virtual worlds of television and the Internet. It has cut us off from others. These isolated, deadening virtual worlds are curious hybrids. They give us the illusion of being part of a powerful (although anonymous) community. Sentimental drama and tawdry spectacle, from ‘reality’ television shows to huge sporting events and saccharine musicals, fill the empty caverns of our inner life. These spectacles have become a common cultural experience and provide the common vocabulary for communication. We sit for hours alone in front of screens. We are enraptured and by bread and circuses. And while we sit mesmerized, corporations steadily dismantle the democratic state. We are kept ignorant and entertained.”

We concur with the view of Kurasawa (2007, 89) that “Of course, this kind of public discussion and debate (regarding the forging of reconciliatory agreement by expressing divergent opinions, attempting to persuade others of the merits of their positions and negotiating an overlapping consensus) must always take place ‘within the bounds of civility.’”

Non-coercion and the right of non-violent expression and assembly characterize the setting for the

conversations which can take the form of demonstrations of celebration or protest, and as such typically

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involve a crowd of citizens and the state. However, civic conversations can also be defined as between the citizens and the state via demonstrations of individual citizens.

Some further information about the notions of civic conversation, public space and civic obligations

are provided in the recent article by Stein (2007) and on the web site (Pew Center, 2008): this site suggests that there are five distinct layers of civic life in a community in which civic conversations occur.

1. Official The layer of official politics and institutions in a community. People in the community engage this layer through such places as city council meetings and public hearings. 2. Quasi-Official The layer made up of organizations and people who are involved with citizen associations, local municipal leagues, advocacy groups and other groups. 3. Third Places The layer of civic conversations and spaces where people gather to talk and do things together. Third places include churches and synagogues, community socials, barber shops, diners, child care centers. 4. Incidental The layer of civic life where people interact informally on sidewalks, at the market, in backyards. Here people bump into one another. 5. Private

The layer that occurs in the privacy of people's homes.

Strand and Patrician, co-founders of the civic organizing foundation Arlington Forum (2008) suggest that community-building begins with one-on-one conversations and later calling on community members to define problems as well as develop and implement solutions.

An elaboration of economic, social and cultural rights in the modern age of global connections is

provided in the Proceedings of the First International conference of CIDESC (International Centre on Economic, Social and Cultural Rights, 2008) held in Lisbon in 2006 (Harland 2006). Clearly rights relating to economic, social and cultural activities link to the broader and more significant set of rights concerning those classed as human rights as elaborated in many documents and initiatives stemming from the Universal Declaration of Human Rights signed on December 10th 1948: details are provided on (United Nations, 2008). An insightful overview of human rights as practice is offered by Kurasawa (2007). He elaborates five fundamental topics: bearing witness, forgiveness, foresight, aid and solidarity that contrast sharply with the traditional view that rights are the products of top-down judicial process using laws, regulations and institution-building. Clearly civic conversations are critical to support the bottom-up approach to rights argued for so cogently by Kurasawa (2007).

Following this brief introduction, in section 2.0 we will offer comments on selected physical and built

places/spaces which are primarily public in nature, and have been sites for civic conversations and the engagement of citizens to exercise their rights to assembly and the free expression of views. We will provide comments on the work of the organization Project for Public Spaces. We will suggest reasons why such physical sites have declined in popularity for the promotion of civic conversations in many societies with the rise of consumerism and what has been called the individualization of society; and also as working lives of individuals have taken a toll on the available time to stroll, sit, gaze, chat and interact with others at a relaxed pace.

Comments on the malaise of modernity as defined by the celebrated Canadian philosopher Charles Taylor

(winner of the internationally prestigious Templeton Award in 2007) will be presented in section 3.0 and we will draw on some findings of the World Value Surveys regarding recent shifts in values, behaviour and attitudes as they are reflected in the style and substance of civic conversations. An overview of views about citizenship will be presented in section 4.0 and we will offer comments on the concept of citizenship that embraces rights and obligations, and impinge on the encouragement of individuals to devote time and effort to exchange thoughts with others about the world, to influence collective choices and to provide checks and balances on the actions of those agencies that are the foci of power and influence in the modern age. Currently there is an active debate in the UK about ways and means to promote UK citizenship. The question is asked: “Migrants must earn the right to UK citizenship under new proposals to attract the ‘brightest and best’. But are the plans fair?” (The Guardian 2008). Ash (2008) has suggested that “Honour should go to the Charter 88 initiative that in 1988, marking the 300th anniversary of Britain’s so-called Glorious Revolution of 1688, helped to kick-start a discussion around a more active notion of citizenship than mere subjects. …Over the next few months, we are promised a government proposal for a Bill of Rights and Responsibilities, and what is intended to be a government-initiated national debate on a ‘British statement

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of values’…” Breslin (2008), the Chief Executive of the Citizen Foundation, asserts that “Citizenship is not just a status for newcomers to earn; it is a process in which every member of our society must be engaged.” Travis (2008) writes of the new immigrant status of ‘probationary citizen’ lasting from one to three years as part of a system of ‘earned citizenship’ that is being introduced in the UK to encourage more non-EU citizens who settle in Britain to apply for a UK passport. How will this initiative be viewed among member states of the EU, and what will be the consequences on sentiments of belonging and identity to the larger political entity, namely the EU? Topics relating to citizenship and the New Europe are explored by the Institute for Citizenship and available at (http://www.citizen.org.uk/avisionofeurope.html).

In section 5.0 we offer an introduction to recent initiatives to engage citizens using virtual

places/spaces which do not involve face-to-face interactions in the traditional sense, but allow strangers and friends to exchange words, images and wishes, desires, hopes, fears and dreams. The concepts relating to spaces of technological citizenship as developed by Frankenfeld (1992) will be explored. More specifically, we address the question of whether or not such initiatives can engender active civic conversations, and new roles for citizens to influence outcomes, and promote improved levels of accountability of the players and organizations whose acts may have very significant effects on the common good and the quality of life of individuals, and more generally very significant consequences on the planet and our species.

Finally in section 6.0 we will explore the difficulties of elaborating necessary and sufficient conditions

and reconciling imperatives, to regulate and plan places/spaces of all kinds for the modern world, so that citizens in the 27 member countries of the European Union will be more actively engaged in asserting and satisfying their economic, social and cultural rights as important elements of their human rights, and to take individual and collective responsibility for the future. An added point is worth making, namely that the security of citizens in Europe is not unrelated to matter of ESCR’s. Clearly, if all citizens are aware of the lives of strangers, and moreover are tolerant and appreciative of social and cultural differences as fundamental rights, and with complementary trade and labour practices as economic rights, then the future of Europe as a peaceful stable part of the world will be enhanced. 2.0 Built public places/spaces

It is important to examine the relationship between individuals, groups and places/spaces, to investigate, for example, the ways in which the interactions between individuals can be influenced by places/spaces and how in turn individuals and groups interact with the places/spaces themselves. After all, every form of civic conversation or act of protest or celebration is contained within a specific place or space whether it is a public park or online forum. Throughout the following section, examples will be given that illustrate the different connotations places/spaces hold for individuals and how the state, through policies, controls and regulates public places/space.

Before presenting selected examples of specific places/spaces we will highlight some key sources of

information and theory regarding places/spaces around the world. The January/February 2008 publication of the Canadian magazine Walrus (2008), for example, focuses on articles about urban affairs. This edition includes a series of short pieces devoted to reviews of some important places/spaces from around the world which have been sites of highly significant celebrations and protests. Brief comments on each are provided that clearly illustrate the nature of the events that typify civic conversations as protests or celebrations. The sites include:

Place de la Concorde, Paris Independence Square, Kiev Durbar Square, Katmandu Plaza de Mayo, Buenos Aires Tiananmen Square, Beijing

An elaboration of the history of public places/spaces is given in Massam and Everitt (2004) and Everitt et al. (2004). In public places/spaces life may appear to be on public display, yet often many of the feelings and conversations of individuals may well be hidden from view, and the contents of conversations unknown, uncensored and private. Ideally one might hope that the conversations are on occasion about matters of collective interest, rather than narrow personal ones that focus on the self and gratification of self-interest. However, given the rising emphasis on individualism that has been recognized by many including Taylor (1991), and the trends we will discuss in section 3.0 regarding contemporary society, it is lamented that insufficient effort is made by significant numbers of citizens to be concerned about collective interests and

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the lives of strangers. The challenge for concerned citizens is to promote and increase civic conversations that reverse this trend.

Heneff and Strong (2001, 1) provide a careful and incisive overview and analysis, using literature from

the classical period as well as the contemporary scene, to examine “…the nature of the space in which human beings encounter each other with the intention of determining how their lives in common shall be lived.” They remind us that this topic is perhaps “…the oldest of political questions” and in western thought dates back to the second book in Homer’s Odyssey. Their overview chapter on ‘The conditions of public spaces: vision, speech, and theatricality’ that introduces a series of essays by respected authors uses Cicero’s quotation Res publica est res populi to head the chapter: a quotation that has been examined many times by philosophers and legal scholars as to its relevance and place in understanding human behaviour and collective action, and legitimate authority. Heneff and Strong (2001, 2) assert that apart from being public, space may be private, sacred, or common, and they offer a simple taxonomy shown on Figure 1 of such spaces with the two basic dimensions on axes that describe ownership- OPEN or OWNED and HUMAN or DIVINE aspects of place.

Figure 1: Classification of public and private space

HUMAN

CRITERIA

Public Private

OPEN OWNED

Common Sacred

DIVINE CRITERIA

Heneff and Strong (2001, 4)

They argue that public space is “… the space created by and for humans that are always contestable, precisely because whereas there are criteria that control admission to its purview, the right to enact and enforce those criteria is always in question.” In a word public space is a human construct, for example, according to Heneff and Strong (2001, 5) “…Saint Mark’s Place Venice is a public space; the alleys and canals are not.”

Two important questions about public space Heneff and Strong (2001, 27) ask are first, “…in what ways does a life in common with others require signs, symbols, and, most fundamentally, a space in which the expression of that life can be the object of legitimate and legitimating contention?”. The second question examines the effects of modern technology such as film, television and the communications on the qualities and possibilities for civic conversations in public space. The boundaries and nature of public space are becoming virtual in some respects: strangers are connected in communities that never have face-to-face contacts. Any general introduction to the topic of space must include a reference to the classic work of Lefebvre (1974) and his book The Production of Space. A short summary does not do justice to his elaborate treatment of this complex topic but perhaps it is sufficient to say at this point that great emphasis is placed on the notion that space is a social construct: Lefebvre (1991, 83) claims “…any space implies, contains and dissimulates social relationships-and this despite the fact that a space is not a thing but rather a set of relationships between things (objects and products).”

The organization Project for Public Spaces (2008) (PPS) offers a detailed web site with information on the

attributes of successful public spaces, the reasons why some fail or succeed, and examples from around the world. Comments and an overview of the PPS project are given in Miles et al. (1978). The focus in this work is on the western city, yet Lefebvre (1991, 286) reminds us that in all societies “Space is permeated with social relations: it is not only supported by social relations but it is also producing and produced by social relations”.

It has been long recognized by planners, architects and citizens that public spaces, squares and plazas

(i.e. civic spaces) are important elements in the life of all communities. In his classic book on ‘great good

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places’ Oldenburg’s (1999, xxvii) opening sentence is worth quoting: “Great civilizations, like great cities, share a common feature. Evolving within them and crucial to their growth and refinement are distinctive informal gathering places.” Similarly, Oldenburg (2001) argues that a healthy vibrant society needs ‘third places’ to complement the ‘first places’ of home, and the ‘second places’ of work where people can congregate. The ‘third place’ such as the square, park, piazza or the plaza is the less formal setting for social intercourse, as civic conversations, that is so necessary for civil society and social life to achieve a balance in an age of work and consumption. However, Banerjee (2001) asserts that public space is shrinking, and the future of such spaces that are necessary for civility to flourish must confront three major trends of privatization, globalization and the communications revolution. Kurasawa (2007, 32) discusses the concept of ‘bearing witness’ as a crucial element in the search for ways to improve the chances of ensuring rights for individuals and groups. He argues that “expansion of public space to accommodate testimony or creation of new ones for this purpose (e.g. the International Criminal court, the 2005 Live 8 concerts and the Internet) …should be pursued.”

Although the outcomes of social interaction in public spaces are not always intended, the planning of

public spaces, whether for civic or recreational purposes, dates back to the founding of early cities and empires. Planned squares, which are clearly recognized as such, appeared in ancient Greece from the fifth century BC, for example. Furthermore, the diffusion among civilizations over space and time of the idea of incorporating civic spaces into a city plan is elaborated in Zucker (1966), and other writers such as Cleary (1999) have focused either on specific squares (Places Royales in France) in particular countries and cities, or on the merits of open spaces on the quality of life of citizens. Perhaps the most well know writer in this latter regard is Olmsted who is credited by Fabos et al. (1968) as the founder of landscape architecture in America and as a remarkable planner of urban parks and open spaces. Sutton (1971) provides an overview of the contributions of Olmsted in the project of ‘civilizing American cities’ through the use of open space plans.

In the Canadian context, the architect Rochon (2003) offers a critical appraisal of the architectural

planning of selected spaces/places that could potentially contribute to increased social interactions and civic conversations. The title of her three-part series that was published in the Globe and Mail, is “Place and Placelessness” and the articles clearly identify the fact that without careful planning some public spaces fail as places where people congregate and feel a sense of belonging as well as safe, secure and at ease. An elaboration of the form and design of squares is given in Moughtin (1999). Comments on the social advantages of civic spaces are given in Whyte (1989), Spreiregen (1965) and Hume (2003). It follows that planners have a responsibility to promote public places/spaces.

Acknowledging that public spaces are planned it is important to consider the ways in which the

activities and the behavior of groups and individuals within places/spaces can be manipulated and controlled. Although it has traditionally been the individual who wanders seemingly aimlessly around the square, the tramp, the drifter, the ‘misfit’ who may be watched and scrutinized closely as a potential risk or threat to others, public spaces have always been exclusionary and the degree of state surveillance and control has only increased in recent years. In 1906, for example, the Open Spaces Act in the UK offered a set of bylaws under section 15 that clearly defined acceptable public behaviour in the parks and public squares in London.

Almost 100 years later, in 2005, the Serious Organised Crime and Police Act (SOCPA) was passed by

the British Parliament. This act prohibited unauthorized demonstrations within designated areas and, specifically, limited the rights of citizens to demonstrate within one kilometre of Parliament. This is shown on Figure 2. To illustrate the spatial nature of this instrument of state control, we present the case of Maya Evans, who was the first person to be charged under section 132 of the SOCPA, which requires protestors to obtain police permission before demonstrating within one kilometre of the House of Commons/Parliament (Tate Museum, 2008). There is literally a physical boundary marking this zone depicted in the following figure. When Maya Evans exercised her right to free speech by reading out the names of the 97 British soldiers who had died in Iraq outside the zone, nothing happened. When she took one step forward and entered the one kilometre boundary around the House of Commons/Parliament and read out the same 97 names, however, she was arrested. This one example can be seen in similar forms in cities all over the world, and is indicative of the increasing tensions between individuals and the state over rights and behaviours in the public domain.

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Figure 2: State Britain Project and SOCPA

Clearly the role of public places/spaces for civic conversations has changed very significantly in recent

years due in no small measure to the evolving characteristics of societies. In the following section an introduction to the major features of such characteristics will be reviewed.

3.0 Modernity: opportunities create tensions

The civic conversations we are concerned with occur within the contemporary setting of the world, and in this section we offer some comments on the topic of modernity. We begin with a few remarks from the work of the celebrated Canadian philosopher Charles Taylor (McGill University, 2008) and his writings on The Malaise of Modernity. Basically, he asserts that three interwoven features affect the contemporary world within which civic conversation occurs. Each illustrates the so-called advances that are occurring in human society while recognizing the downside of each, and the consequences on individual behaviour, political involvement by citizens and the potential for conversations about matters of collective concern and the common good.

1. Individualism: this is a fine achievement of modern civilization but it can yield a loss of heroic dimension to life and a higher purpose; centering on self flattens and narrows life and there can be less concern for others 2. Instrumental reason: this is a kind of rationality to achieve measurable outcomes with the dominance of technology but a loss of resonance, depth, or richness in human surroundings can occur, making the market and the state increasingly powerful 3. Political consequences: de Tocqueville noted that individuals are often ‘enclosed in their own hearts’ they enjoy private life as long as governments produce the means of satisfaction and there is low participation in politics by citizens. Each of these features provides a challenge for those who try to promote civic conversations.

The term amoral familism was introduced by the political scientist Banfield (see Harvard, 2008) to explain the backwardness of some rural communities in Southern Italy where inhabitants only cooperate with immediate families. Brief comments are given by Harvard University, 2008. This controversial hypothesis has been elaborated in different terms by Putnam (2007) using detailed empirical data for the USA in his work relating to communities, co-operation and trust. He argues that as a society becomes more ethnically diverse, as is certainly the case in European cities, in the short run this is leading to reduced social capital: trust is lowered, communication and co-operation is rarer and friends are fewer. The consequences are perhaps that collective interests are not a focus of attention as group and individual interests prevail. The promotion of civic conversations within and between ethnic groups is to be encouraged to build trust among and within ethnic communities in all parts of Europe. Clearly the bottom up approach of Kurasawa (2007) to promote rights as mentioned in the introduction has a key role to play here.

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At a global level the reports of the World Value Survey (2008) that have been summarized by Welzel (2008) clearly indicate specific trends. With respect to cross-cultural variations two clearly defined dimensions are identified. These are shown on Figures 3 and 4.

• Self-expression values: range from weak (restrained individual) to strong (expressive individual) • Community values: range from weak (mythical ideal of a sacred community) to strong (rational ideal

of a secular community) Figure 3: The two-dimensional value space in theory (modified after Welzel, 2008)

Figure 4: Cohort difference throughout cultural zones (modified after Welzel, 2008)

As Welzel illustrates with a schematic graph (Fig.3), the rise of individualism is changing the structure of society as self-expression and personal freedoms supersede the needs of the community and the state.

One of the defining characteristics of the modern age involves considerable efforts by individuals and governments to define the concept of citizenship in a global and ever changing world. In the following section we will address selected points regarding citizenship.

4.0 Some views on citizenship

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The word citizenship invokes an enormous variety of responses from laypersons, academics and politicians among others. A search on Google (2008) for the word citizenship yielded over 39 millions hits, and interestingly the rights of citizens produced 1.7 millions hits, while the obligation of citizens produced 1.9 hits. Conversations can be considered as part of the obligations of active citizenship. The word citizenship is part and parcel of the contemporary world of identity politics and planning, where rights are asserted especially by some interest groups, and supported by laws and sanctions, yet obligations are less easy to identify and enforce. Both rights and obligations are critical to a healthy state in which civic conversations occur.

If we look at the traditional definition of citizenship put forward by Wikipedia (2008) we see that it

implies membership within a political community (originally a city or town but now usually a country). Moreover the term active citizenship implies “working toward the betterment of one's community through economic participation, public service, volunteer work and other such efforts to improve life for all citizens.” In recent years, however, and especially within the context of Canada’s multicultural framework, individuals do not automatically associate their citizenship with a nation but rather smaller fragmented communities based on cultural, professional, recreational and spatial identities.

Indeed in his paper Bowling Alone, Putnam (1995) asserts that the rise of individualism is creating more

and more isolation in society, and a lessening of responsibilities and engagements with problems that confront others and the collectivity. Putnam (1993) notes that: “Citizenship in a civic community is marked, first of all, by active participation in public affairs. Interest in public issues and devotion to public causes are the key signs of civic virtue. Citizenship in a civic community is marked, first of all, by active participation in public affairs. Interest in public issues and devotion to public causes are the key signs of civic virtue. Citizens in a civic community, on most accounts, are more than merely active, public-spirited, and equal. Virtuous citizens are helpful, respectful, and trustful toward one another, even when they differ on matters.

The challenge of community building and civic engagement at the national scale is a project that

engages much attention in the European Union with its 27 member states as of April 2008. The differences in economic, social, cultural and political terms among them are considerable, yet the proponents of the EU project argue inter alia for the unifying forces of the rule of law, democratic institution and the powerful place that civic conversations should have to build a new Europe in the 21st century to tackle problems that single state cannot deal with in isolation.

Although EU members have integrated many of their economic, security and social policies,

individuals are still strongly affiliated with the state where they hold citizenship. Jenkins (2008) reminds readers of The Guardian that the governance of Europe is extremely complex. “Europe has never been tolerated being led. It is a continent of cats, not dogs. Diversity is its glory, cantankerousness its defence. It is not a family or a community but a market-place, a cultural entrepot. Those who have sought its unity, even as political metaphor, have come to grief. …Edward Gibbon, writing of the fall of Rome, might have been describing his contemporary Europe when he concluded that, rather than empire, ‘independent states linked by a general resemblance of religion, language and manners are productive of the most beneficial consequences to the liberty of mankind.’” The proposal for a single European passport, which would eliminate the need for national passports, is an experimental concept which raises further questions. What would it mean, for example, to hold a European passport, and how would its implementation impact the rights (employment, housing, voting) of individuals?

This brings us to the question of what makes a good citizen and what actions can be taken to promote

citizenship? A number of web sites and papers have been devoted to the topic of the good citizen, for example, Westheimer and Kahne (2008) and Bryant (2006). As mentioned earlier, citizenship is often associated with rights and entitlements for individuals, but what about the corresponding duties and obligations individuals should ideally perform to be considered as a good citizen? Furthermore, how can rights be enforced and responsibilities encouraged, and what role is played by face-to-face civic conversations as part of being a good citizen? The question of where such conversations take place, be it at school, work, cultural events, ‘third spaces’ or increasingly via virtual forums such as chat rooms and blogs. The contents of exchanges are a matter of debate and concern as censorship and freedom of expression, as well as accountability, have to be considered. How much regulation lies within the purview of the state, and how much responsibility resides with the authors of commentaries that are available on the Internet?

Clearly citizenship implies rights and obligations no matter where and how the acts of civic conversation occur.

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5.0 Spaces of technological citizenship

In the 21st century a discussion of spaces would not be complete without mention of virtual spaces where individuals can meet and interact without actually being together. The spaces of the web and Internet provide opportunities and challenges for strangers to be connected. This new phenomenon of connecting strangers and friends using computers is a new and emerging feature of contemporary society.

The role of the Internet to empower citizens and cause governments and agencies of the state to be

more responsive is the general topic explored by Fountain (2001) Building the Virtual State. She argues that citizens must be informed of all aspects of the Internet to ensure they do not loose control over the institutions that employ such technology. Will citizens be willing and able to undertake this daunting task and act in common to protect their rights as individuals and as a collectivity? Perhaps the gathering of citizens in informal settings such as cyber cafes -third spaces of the Oldenburg (1999, 2001) kind- will contribute positively to link virtual public spaces and strangers with real places.

Besser (2008) in his paper on Intellectual Property: the attack on public space in cyberspace argues that large

scale economic forces contribute to the elimination of public spaces that allow culture and politics to flourish and such forces “…have launched a full-scale attack on public information spaces, many of which exist on the Internet” His article “…uses the disappearance of public spaces in cities as a metaphor for the disappearance of public spaces in cyberspace.” Besser asserts that the consequences are a direct assault on “…free speech, artistic endeavour, and entire way of life” as copyright law assaults the public domain to turn all information into commodities. In a related intellectual vein the urban critic and social thinker Jacobs (2004) in her recent book encourages all citizens to remember the past, and fight against collective forgetting of the consequences on the human condition of events not talked about when people congregate. The absence of opportunities to congregate assists in collective forgetting. Public spaces are places for citizens to congregate and to engage in social discourse.

Just as the importance of sense of place has survived the ‘death of distance’ or ‘placelessness’ assault

brought about by information and communication technologies (ICT), the claim that virtual public spaces will destroy the spirit of the Jacobean boulevard is not entirely true. While Andrews (2006) acknowledges that citizenship is played out in civic spaces, and that the use of physical places and face-to-face interactions are declining, he argues that digital spaces on the web are emerging to fill the void. In fact, here is evidence that online forums and blogs are actually helping to build trust and civic engagement in communities. In artistic and activist communities, for example, online forums are spatially rooted in specific neighbourhoods and serve to enable conversations between individuals, engaged in common projects or struggles, who because of hectic schedules, can not meet in person. In this way, therefore, virtual spaces can be seen as a modern tool to solve some of the problems of modernity, in that they have the potential to reconnect individuals to various communities and the nation itself.

It is important to recognize that the notion of ‘technological citizenship’, which was initially

introduced by Frankenfeld (1992), and the use of virtual spaces described by Andrews (2006) brings with it a new set of potential problems and questions regarding the relationship between individuals and the state. Questions regarding censorship, accountability and availability of information via Internet to the citizenry abound.

Kurasawa (2007, 185-186) notes that “… although the Internet is a contested political terrain, it

remains an essential tool for organizing and exchanging information within the Alternate Global Movement. Without it, global days of action such as the 15 February 2003 marches against the war in Iraq-which were predominantly coordinated and publicized on all continents through electronic resources (websites, email listserve, etc)-would scarcely have been conceivable.”

Frankenfeld argues there are distinct elements associated with technological citizenship and civic

conversations using Internet, for example: he identifies a set of rights and duties of citizens to ensure that civic conversations in virtual space are beneficial to society. Specifically he asserts four rights:

• Citizens should have access to information • Citizens should participate in public decisions • Citizens should give informed consent • Citizens should accept a reasonable level of risk involved

The following three duties of a citizen are that each person should: • Achieve technological literacy • Engage with problems of the day

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• Protect the public good

Andrews (2006) makes the case that citizenship plays out in civic spaces, and that new public spaces include the web/Internet. Finally, he argues that a major challenge to the use of the Internet as a format for civic conversation lies with matters of the tyranny of censorship. Who controls the content of civic conversations among strangers? What kinds of regulations are feasible to ensure reasonably levels of accountability regarding the content of information exchanged?

Barney (2007) has elaborated a number of highly significant aspects of technological citizenship which

must engage the attention of planners and others in the modern world. He invites us to: " … consider many important issues: how are we used by technology (rather than how we use technology)? How does it affect the practice of political judgment by citizens in a democracy? How engaged are we as citizens in determining the direction in which technology goes? What do we think about its unintended consequences and social implications?” According to Hancock’s introductory remarks to the public lecture by Barney (2007) on the topic: One Nation Under Google: Citizenship in the Technological Republic "He [Barney] helps us to create stronger, more nuanced notions of citizenship and the readiness not only to participate in the democratic life of our country but also to shape it.”

Gee (2007) has drawn attention to the view that ‘…history’s most powerful communication tool

[Internet] could serve a higher purpose than spreading celebrity gossip.’ He refers to the initiative of Shawn Ahmed (2008) who uses his cell-phone, camcorder and Mac laptop to post information on YouTube, Flickr, Facebook and his own site to encourage debate to fight poverty in his country: Bangaldesh. Gee (2007) recognizes that “… sites such as Facebook and YouTube are always going to have lot of froth on them …but if more started to using these web tools like he [Ahmed] does what a difference it could make.”

There is no doubt that recent years have seen an incredible growth in technology to connect

individuals in virtual places/spaces. This trend has distinct creative opportunities but as we have outlined it also present serious challenges to encourage individual to use for civic conversation on matters of ESCR’s and the common good, and for a society to regulate.

6.0 Reconciling imperatives: can civic conversations help?

In this concluding section we assert that the basic imperatives of citizenship involve rights and obligations. We argue that civic conversations, as public demonstrations of celebration or protest, and exchanges among individuals in public physical places/spaces or in virtual places/spaces, are critically important to increase awareness and debate about matters of economic, social and cultural rights as critical elements of the common good. Politicians bureaucrats, NGO’s and others have responsibility to help design places/spaces to promote civic conversations as part of the general project to enhance the QOL for all citizens in the EU both in the short and long run. While governments and agents of the state act on behalf of the citizenry, it is appropriate that as many citizens as possible make their views know to those who take decisions that affect the collectivity. With this in mind we identify below a set of five elements or imperatives of the civic state, each pair with somewhat contradictory tendencies. An elaboration of conditions of the civic state is given in Massam (2000).

1 Citizens assert rights – citizens have obligations 2 Citizens seek security – citizens seek liberty and freedom 3 Citizens assert individual rights – citizens contemplate collective rights 4 Citizens are concerned about the present – citizens contemplate the future 5 Citizens are concerned about us and we – citizens contemplate the situations of strangers and unknown others.

Clearly there are tensions among each pair of the five imperatives, and we argue that civic conversations can contribute positively toward the search for a degree of reconciliation among the imperatives for a society.

We further suggest that if the two propositions that underlie this paper are valid, namely that: • The protection and improvement of economic, social and cultural rights for citizens

requires inter alia the promotion of civic conversations among citizens in the EU as a requisite obligation of citizenship.

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• Places/spaces can contribute to opportunities for civic conversations regarding attitudes and policies that relate to ESCR and outcomes that influence sustainable quality of life in Europe.

Then we can ask: What are the necessary conditions to promote civic conversations? And what are the necessary conditions for citizens to celebrate or protest and bear witness as part of the project to protect and enhance economic, social and cultural rights? In essence we provide a set of five general principles shown below that we feel should guide discussions about conditions, without any expectation that it is possible to define analytically specific conditions in a formulaic mechanistic way. Rather we suggest that the conditions are part of a cultural heritage for a society that embraces principles of the rule of law and democratic institution-building as well as civil society and the protection of rights.

• Freedom and liberty from state control or other form of control • Accurate information about the state of the world • Energy, will, time and resources to celebrate or protest • Desire and willingness to look beyond the local and self-interest toward others and strangers, to

seek an ideal • Access to others who wish to participate in civic conversations

In the specific case of Britain Jenkins (2008a) has argued that “A tier of social control has been

lobotomized from British public life. There is nothing between the individual or family unit on one hand and the central state on the other. Britain has fallen into De Toqueville’s trap of an atomized society, where ‘every man is a stranger to the destiny of others. He is beside his fellow citizens but does not see them… while above them rises an immense and tutelary power, that of the state.’ We have lost the habit of association.” He goes on to argue: “Go to any community abroad, whether in America or France or Germany or the Netherlands, and that figure will be a locally elected official, normally a mayor. He or she may represent a city, a village, a neighbourhood or just a block association, but they will be known by their people and be trusted. Mayoral recognition in France and Germany is 80%-90%. Legitimacy rests not on a uniform but on a vote. … The nearest any British community has to local government these days is the police force. … The renaissance in US cities over the last quarter-century has depended on civic leadership supplied through elections. The same applies to the newly confident cities of Spain and Eastern Europe. It is to mayors and councilors that parents, businessmen, farmers and teachers naturally turn in times of trouble. It is they who barter local power, cut deals, express civic pride, reward and punish, as they have done through history. … In France there is an elected official for every 120 people, which is why micro-democracy is alive and kicking. In Germany the ratio is 1:250, in Britain it is 1:2,600. In France the smallest unit of discretionary local government (raising some money and running some services) is the commune, with an average population of 1,500 people. In Britain the average district population is 120,000, and even that body can pass the blame for any service deficiency to central government.” “For all nationalizations in British history, none has been so corrosive of the public good as the nationalization of social responsibility. … In recent years, a phony mantra about civil society has been preached by Gordon Brown, David Millibrand and Hazel Blears, [UK government ministers] usually presaging an expensive and meaningless ‘conversation with stakeholders’. Such top down paternalism is not self-government and never will be. Democracy bites only when it votes, taxes and delivers. Only then to its participants have the legitimacy to enforce social responsibility and communal discipline.” Civic conversations are much more than ‘conversations with stakeholders’ and deserve to be recognized as such by politicians.

In the context of the new Europe we should note the comments of Jenkins (2008a) “The paradox of

the EU remains that of diplomacy down the ages, of how to discipline trade between nations without putting an intolerable strain on their sovereignty. The new Lisbon constitution rejects any such paradox. It claims, with Napoleonic hauteur, the euphemisms of all autocracy, the level playing field and the acqui communautaire (agreed laws). It may lead to ever closer union for a while, but every moment in history says that, at some time, such hauteur will be swept aside, as it almost was in the referendums of 2005.” Traynor (2008) notes that the EU’s two senior foreign policy officials, Javier Solana (chief foreign policy co-coordinator) and Benita Ferrero-Waldner (European commissioner for external relations) have stated that “Europe must expect substantially increased migratory pressures”. This added to the global shift in population distribution; by 2050 7% of the world’s population will live in Europe whereas in 2008 the number is 11%, and the fact that the average age of European will move from the current figure of 39 to over 47, will place considerable pressure on citizens and governments in the EU to find suitable accommodations to these dramatic shifts and the consequent needs to assert appropriate ESC rights. Finally we assert that: “The pursuit of civil society as the key to building effective civic states and a global civic order to promote justice and sustainable human existence seems to me to be perhaps the single most challenging task facing humanity” Massam (1996).

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Civic conversations can encourage citizens to speak out and have confidence to bear witness to the wrongs concerning ESCR’s in the world which require redress. Redress which can on occasion be provided by legal courts and similar instruments of change, but also by the more nebulous but vitally important courts of public opinion and through the mass media: sources of much change in the world under the right circumstances. Ash (2007) provides persuasive arguments to support the view that ‘memories have faded but the event in Berlin endures as a model of non-violent resistance’. The court of public opinion can pronounce a verdict for social change. His project with his colleague Adam Roberts from Oxford, examines cases of the use of civil resistance that have failed and those that have succeeded to search for explanations. Ash (2007) argues ‘… you also need the citizens on the streets, with their candles, banners, chants and the sheer peaceful force of numbers. Without them, there is no revolution. With them you can change the course of world history …” Civic conversations in all kinds of places/spaces as protests, celebrations and occasions to bear witness have important roles to speak truth to power, and allow democracy to function effectively by full participation of all citizenry in the EU and elsewhere to support the rule of law and the court of public opinion to promote ESC rights and a sustainable quality of life.

Acknowledgements Bryan H. Massam is grateful to Professor Graca Almeida Rodrigues the Executive Director of CIDESC for the opportunity to attend this conference and helping to secure the necessary financial support to make the visit possible. References Ash, T. G. 2007 Powerful example of fallen wall lives on, The Guardian Weekly, November 16, p 24. Ahmen, S. 2008. The Uncultured Project. HYPERLINK "http://www.uncultured.com" www.uncultured.com. (Accessed January 10, 2008). Andrews, C. J. 2006. Practicing Technological Citizenship. Technology and Society Magazine 25 (1): 4-5. Arlington Forum. 2008. Review of Civic Engagement: a guide for communities. HYPERLINK "http://www.arlingtonforum.org/projects_details.php?query=102" www.arlingtonforum.org/projects_details.php?query=102. (Accessed January 10, 2008). Ash, T.G. 2008. I am Brit, hear me roar, The Globe and Mail, March 13th Banerjee, T. 2001. The future of public space: beyond invented streets and reinvented places. Journal of the American Planning Association 67 (1): 9-25 Barber, J. 2007. Where do we go from here? Globe and Mail: (pp. M1, M4) Barney, D. 2007. One Nation under Google: Citizenship in the Technological Republic Hart House Lecture, University of Toronto (www.harthouselecture.ca). Besser, H. 2008. Intellectual Property: the attack on public space in cyberspace. HYPERLINK "http://www.gseis.ucla.edu/~howard/Papers/pw-public-spaces.html" www.gseis.ucla.edu/~howard/Papers/pw-public-spaces.html. (Accessed January 10, 2008). Breslin, T. 2008 Model Behaviour, The Guardian, February 27 Bryant, J. A. 2006 What Is Good Citizenship? The Story of Chiune Sugihara. Social Studies and the Young Learner 19 (2): 13-15. Chua, B and N. Edwards (eds.) 1992. Public Space: design, use and management. Singapore: Singapore University Press. Cleary R.L. 1999. The Place Royale and Urban Design in the Ancient Regime. Cambridge: Cambridge University Press. Di Cicco, P. 2008. Remarks on the Occasion of Eric Kuhne’s Visit to Toronto. www.toronto.ca/culture/pdf/poet/2007/2007-jun-tedco.pdf. (Accessed January 10, 2008).

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Minorities’ participation in urban renewal: several tools for a dialogue

Roselyne de Villanova – IPRAUS UMR, CNRS, Paris

Abstract This paper is part of a study I have begun recently. It is a collective research about renovation,demolitions and citizens empowerment, which analyses several cases in French cities. The objective is to propose some conditions and severals tools for driving ( rising) participation in urban projects. To lay briefly the French context of urban renewing : The participation of civil society in urban renewal, that we call participation, is not very developed in France, compared to Italy, Germany, or England.. To day urban policies with Loi Borloo (2003) about demolition and renovation of social housing are supposed to struggle against segregation and enclosed districts or cities. The objective is social mixity and concertation with the residents . But the local authorities, housing administrators, and the architects do not like this process for several reasons, mostly because they are unused to it, and because it is difficult to manage an assembly with very different interests. Among the programms of urban renovation following the law and using public funds, very few of them use concertation with residents unless it is an obligation. Usually they build their project of demolition without informing the population in time. In some cases a social movement of residents rouse, trying to stop or modify the project. Through several cases, I analyze the difficulties and conditions for participation and I propose several tools in order to realize the conditions for a dialogue between local authorities, architects and residents . This paper is about the conditions and tools for rising and managing civil society participation in urban regeneration projects. The idea I try to defend is how minorities and disadvantaged people from civil society, through the experience of participation, may go from a dominated situation to a situation of empowerment, of creativity and initiatives. It is the way they include and gain citizenship. This article refers to two French cases which I am working on at the moment. The studies about public participation in urban governance seem to be less developed as far as they concern the question of urban renewal and design projects. Besides, experiences of civil society’participation in urban renewal are developing recently in France, later than Italy, Germany, England, or Canada(1). There has been a slowly change since the 21th century, with the law about revitalization (Borloo 2003) but also with the “Politique de la Ville de Paris” ; even before the new president of Paris, elected in 1996, with the creation of Conseils de quartiers (The local assemblies’ law appeared only in 2002).(2) To-day workshops with residents are taking place in several cities in order to build up a project of renovation, to create an alternative to municipal projects with many demolitions. The president of Paris reelected in 2008 more implicated than ever, is working on new incitative actions for participation in the Parisian districts. I- Context : The search for housing continues to be a problem in metropoles and cities all over the world for poor people, for migrants workers, and in general for people who have low income. See Mike Davis (2006) who points out the problem especially in developing countries. Even rich countries did not answer the problem unless we know housing is a right for everyone. France did not solve the problem unless we have a rather high percentage of social housing (16% of households in France live in social housing). But more than one million families are waiting for social housing (two thirds of those families have very low income) and three millions don’t have normal housing conditions (see Fondation Abbé Pierre). A new law le “droit au logement opposable” has been voted in 2007 but the conditions for its application are not set up because of the lack of housing stock. The new program born with the minister Borloo about urban renewal (regeneration) offers subsidies to municipalities who present a project of urban regeneration and retrofitting with demolitions of dilapidated buildings. In fact, mainly social housing built during the sixties is concerned. The objectives of the law are envolving : demolitions to create social diversity(3) and stop the process of exclusion and segregation, the

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rebuilding (revitalisation) of dilapidated housing and the inclusion of areas that were enclosed, isolated from the centre and the city functions.(4) Many municipalities applied to that good opportunity to receive funds. In fact a good number of them did not respect the recommendation of participation so that now the financial organism (ANRU, Agence nationale pour la rénovation urbaine) is preparing a text but we still don’t know if it is going to be a decrete or something else. Because of the demolitions, people had to leave their flat and live in another city or, if they had not a good income, accept the proposal in very dilapidated districts or apartments somewhere else. Some had to leave very well equipped estate housing, close to the centre for other places that were not so good, or had no good transportation to go to work, several of them had lost their large family neighbourhood, very old people had to move. Those who can stay in a renovated apartment have to be able to pay a more expensive rent and these can be satisfied because they are in the process of residential rise(5). Many areas in great difficulties (high rate of unemployment, delinquency, single-parent families…) are concerned and the demolitions bring problems for a great part of the population. Why participation is important regarding this situation ? For disadvantaged and marginalised people to be active and not passive suffering their conditions and be better considered by the local authorities and estate housing organizations even if they depend on social welfare ; in order to find good solutions for them and with them ; introduce a collective discussion about the best solutions so that authorities don’t decide without knowing the real situations instead of being incapable to prevent the environment dilapidation, managing wrong, with irrational expenses. As an estate housing manager says : “there were two regenerations before this project of demolition and with large polygamous families the collective space has been quickly dilapidated. We didn’t anticipate the problem.” As for the recommendation of participation, the local authorities, housing administrators, and architects do not like this process for several reasons, mostly because they are unused to it, and because it is difficult to manage an assembly with very different interests. Others because they know the population interests are against theirs. Among the programs of urban renovation following the law and using public funds, very few of them use, in fact, participation with residents. Usually they build their project of demolition without informing the population in time. Or they only make what we call “une enquête publique” which is the presentation of their project with the possibility of receiving comments from de local population. In several cases, the public organism owner of the estate-housing decides to create a workshop of residents that he drives, in order to legitimate its project and prevent from the rise of a social movement. In Paris, participation may sometimes create and reinforce the legitimity of the local authorities. Few rise from associations of residents as it happened in Belleville (La Bellevilleuse see below). Near Paris, a social movement of residents rouse, trying to stop or modify the project. The demolition of a whole estate housing in the city of Poissy has been stopped after a movement of residents and the municipal elections. The municipality has changed, the left wing won against the right local power. Students from a school of architecture had prepared an alternative project of rehabilitation with residents, for their diploma. They are now working officially on that project to realize it. The two examples, in which I began to work on very recently(6) are at the beginning of experiences of participation. The first one is a city, Les Mureaux (a few kilometres further the city of Poissy), where are also living migrants who have been working in motor cars factories during their successful years. It has very dense social housing built in the sixties, few social diversity, mostly African families. The city has a very small village centre, separated from large housing blocks, semi closed, separated from the streets. The schools are built altogether in the same area. The city planning refers to the zoning model. These blocks have very large in-between spaces and small inside streets belonging to the organism owner and not being municipal public space as streets usually are, so that the cost of maintaining was supported only by the neighbourhood residents. My other reference is a small public space in a multicultural district in Paris (called Belleville) which should be renovated (regenerated) with participation of residents and with an interdisciplinary group of students.

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Through these cases, I analyze the difficulties and conditions for participation and I propose several tools in order to realize the conditions for a dialogue between local authorities, architects and residents. These tools are produced in a process which is not only top and down but also bottom-up with several there and back. This second part of the process is not so frequent in France because the participation is a tense relation between civil society and institutions where specialized or professional competencies oppose to competencies of the ordinary civil society. In theses cases many residents are in the situation of subalternity such as etnic minorities for example and disadvantaged people in general (as we say subalterns studies); a relation which is going to be discussed (clarified) below. So, such a relation is a different process than for example others where a rather homogenous middle-class population is concerned. The type Carole Després (2005) is experiencing in Canada with her interdisciplinary group in Quebec. One of the results they bring is that, at the end, the residents declared they were much more interested by what they learned during the process (reading a map, etc.) than about the aim of the project they were producing together. II Participation : types and conditions The French literature about participation is mainly developed on the field of public affairs and institutions in general and not much on the special context of urbanism and urban planning. Different types a) According to Marie-Hélène Bacqué, Henri Rey et Yves Sintomer (2005), it is possible to identify five types of participation through the political action : the managerial model, the participative modernization, the neighbourhood (local) democracy, the empowerment model, the participative democracy.

- The managerial model is a cooperation between professionals in the public and private sector. In that case civil society is very feeble and the politization is also nearly absent. This model is quite important in East Europe, developing countries and in the anglo-american world.

- The modernization participative model : the Estate is powerful, citizens have very few decision power. There is no remarkable role of the dominated social classes. The role is more policy governance. When there is participation it is more a top down movement. But participative rules and transparency exist. This model is influent in Northern Europe, New-Zeland, Germany and United Kingdom.

- The model of neighbourhood democracy : it works at a very small microlocal scale. It is more a question of communication between the local power and civil society who cannot change the decisions. The movement is more top down. This model is influent in France and more developed in all Europe.

- The empowerment model : The Estate don’t play an important role. There is a strong implication of NGO and there is a real possibility for citizens to participate to decision. It implies a bottom-up movement with importance of social movements but also the confrontation to professionals. This type is frequent in developing countries, anglo-saxon world. In its best cases, France get close to it.

The model of participative democracy : the role of the Estate is important also the role of civil society with a political dimension. There is cooperation between social movements and politics so that it creates top down and bottom-up participation. Civil society may control the management of public services. This model is developed in Latin America, with the example of Porto Alegre and several participative funds (budgets participatifs) in Spain and Italy.

Especially concerning participation in urban renewal (regeneration), we have two sorts of models : one is more a model of neighbourhood democracy within a deliberative situation and the other one is going further, to a double movement top-down and bottom-up close to empowerment model with social movement proposing an alternative project to the official one. We are studying it at the moment through different types of workshops with residents in several cities concerned by urban renewal. b) Cultural environment and cultural resources from diversity In countries such as France where public services and policies are very developed and organized (public transports in cities, or social housing in general, for example)(7), civil society may be discouraged to take initiatives. There may be a strong confrontation and conflictual power between the institutions and the people who wants to criticize and modify a project of demolition that destroys many urban values or because it evicts them from their familiar area. Differently in Brazil for example where there is a lack of public services which encourage people to take initiatives. Comparing France to Latin America, some experts say that we are too much professional. This is the way some actors take the power and produce relations of domination, which is going to be discussed below. But it means also, in some way, that we are not able to be creative enough, to invent a solution to a problem by the time it raises. Creativity is also necessary to get out of a conflictual situation (solve a conflict) and find a consensual solution. Creativity also comes from social practices : many examples of self builders or residents occupying in-between spaces show it. Anthropology teach us how people are able to build space related to their way of living, their lifestyle, to their family and social relations, from their ability transmitted through their culture. (Bonnin &Villanova 1999 ; Segaud 2007)

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City -planning may be very far from residents ’ life and their production of social space through the organization of their activities. We can refer to many examples observed in countries where urban policies and regulations (rules) are not so normative than in France.Of course in these cases the image of the city is perhaps not so “clean”, not so good-looking neither prestigious but it has much more life and resources of alls sorts of activities to work for and not only use as a consumer. It has resources of inclusion. There are very interesting examples in the way people from rural regions occupy the in-between spaces in modern estate-buildings. We may refer to the city of Hanoï ( Yong Hak 2001) and the estate-buildings in the suburds of Boukhara city (Rey 2008). Between the blocks of modern housing far from the centre of the city, there are large public spaces with trees. The residents built little shops to sell all sorts of goods, they put chairs and furniture, plants, and have a neighbourhood social life surrounding the buildings among the vegetation they look after. They organize picnics on week-end, family receptions and so on. Children and young play there two. These in-between spaces are also between private and public relations. Belleville district is still a popular area. It has a very large offer of cosmopolitan commercial structure but also in producing local culture through the artists living there and creating work shops for adults and young people, through the cultural ethnic communities associations. So that it has its own local production of cultural events and apprenticeship, bringing originality and active pedagogy, parallel to the official culture any big city or metropole usually offers, which is for consuming only. Besides when society rely only upon specialized and academic knowledge it looses the abilities learned through its vernacular culture transmitted through families and social networks. Participation is a way to put in contact these abilities with a variety of capacities coming from inhabitant’s experiences and different world of apprenticeship and knowledge such as popular, academic, rural, traditional, urban etc… ) and also institutionalized professional knowledge. Many migrants come from rural regions with their abilities in building their house. Many migrants children are leader in producing music, dance, and creation in their youth oral language permanently enriched by new words invented from their parents’ home (birth) country languages. They show great creativity in oral expression which has been studied by sociologists and sociolinguists. These interactive competencies are probably transmitted by an oral heritage affected through school apprenticeship based on written culture. III- Tools and key issues for public participation as a double process (top-down and bottom-up) As we first said, these tools are emerging from several on going field works. a) Empowerment and how to build a representative group of residents. Several authors rise the question of the representative group in the scientific literature from different countries (Swiss, English, American, French, Italian ). Those met through communities and associations cannot be the unique partners ; social movements are useful but also individuals of different generations, genders, and social classes. Very often, minorities and disadvantaged people do not join any association. Young people and adolescents, adults unemployed, isolated old people are left aside, they lack self confidence, which contributes to (reinforce) their exclusion. Some associations have great difficulties on empowering a group. Those facing economic problems, who are late in paying the rent of the apartment, who are in a situation of urgency, or old people, wrap in themselves, isolate themselves. In a meeting preparing a workshop, a group of young people concerned by the demolition of their apartments and area, were saying : “ when we were at school here it was different, there were solidarity between people, to-day no, each one stays with its own problem. They don’t listen to us when we ask them to come to the forum and other meetings to be informed of what is going on about us. The president of the association of residents added : “They don’t anticipate, they don’t look for information they come to me when the problem is urging and they are to be evicted from their apartment. In that case I cannot interfere. I could help if the association was a large group, we would represent something, be somebody towards the housing organization and the municipality, but they ask me everything and do nothing, they are just passive. In that case, we cannot be partner of a dialogue with the authorities. In Belleville we organized a group of young boys on the fringe to discuss the arrangement of a public space before inviting them to join the next general local assembly so that they may get self confidence. They did not come to the assembly organized for them because the leader had a problem and could not come. How do we organize participative forums ? How different categories of people can participate ? Do we begin with separate groups, in which conditions ? Are there groups who don’t want to meet in the same meeting ? Which are all the power relations inside a forum ? This is one of the questions we are studying for the moment in the field work.

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In public spaces and in-between spaces, there are conflicts of practices, for example intergenerational conflicts, cultural conflicts or gender exclusive appropriation and they rise in the participative forum where the civil society is not homogeneous. How to drive the discussion ? How to go further than a very personal problem ? People in great difficulty are in urgency or very vulnerable. They need to talk about their personal problems and the leaders of the forum have to learn how to drive them to collective interest which others more educated living in better conditions, may have larger views on collectivity (as we could notice with residents being activists in NGO and also bicultural who were living in houses with garden near the collective estate-buildings ). b) Promoting cross-cultural dialogue This year 2008 is the European year for cross-cultural dialogue (European Union). What does it means in terms of communication ? 1- Ressources of cultural diversity, towards cross-cultural relationships In multicultural districts, there are people in great difficulties : low income, unemployed people, youth with family problems etc…but also old people rather lonely with bad acquisition of the host country language or lacking school education. They are unfamiliar with administrative language and city planning vocabulary. Subalternity is related to these difficulties and we have to be aware not to confound poverty with lack of culture as it appears very often. Many migrants have still a strong oral culture which is disappearing in urban society. In France, many ethnics are not so far from ancient oral tradition, it should be treated more as a resource than a susbstractive difference. This should be a resource for dialogue unless it is very often hidden. It must also be taken in account for social contacts such as youth oral expression being possibly turned in a resource for communication as suggested above. Very often people who benefit from social welfare, are considered as dependant people, people in care, without abilities and irresponsible . All sorts of dominant behaviours appear to take away their self confidence. Some of them say : we are considered like “ des moins que rien” and they are not ready to enter public participation. They suffer discrimination which appears through a strong segregation. In les Mureaux, young ones say that there is no more cultural diversity, that the area is only now rented by Blacks, some say, “here it is Senegal”. They point out the former cultural diversity which was richness. “How can we include if we don’t meet white people ?”. They were living with white people, as they say, residents who belong to differentiated economic class, such as Portugueses, Spanish. At the same time they become passive because of their conditions of living and the subjectivation of their in care situation. Yet, many scientific studies denounce the problem of representative groups. Those who participate are mostly the educated and associative activists. In migrants families, they appear through the generation of children. We see through our field works their importance as bi-cultural intermediaries. They have got an academic or professional qualification. They are called : “passeurs de culture” as they go between popular migrants culture and academic culture, making the link between two distant societies which are in a relation of subalternity. The evolution of the socio-cultural relation with minorities (vulnerable people) comes from cross-culturalstudies : bringing reciprocity instead of a relation of subalternity They also belong to a movement that took place in the sixties through popular education. They are national and they were influenced by foreign experiences such as Yugoslavia (autogestion) or Quebec (social workers) The aim of cross-cultural method is to build a relation of reciprocity in transmission (I teach to another belonging to a minority group but I also learn from him and from his culture). That requires a pedagogical process in order to call or catch from minority groups, their abilities (as it is the case in many associations in Belleville). The social centre of Belleville Their members are people of the neighbourghood, multicultural migrant population, women, lonely old people, school children. They offer French lessons, alphabetisation, after school help, computer classes, information about their civil and social rights, workshops of how to enter the public arena and local public debate : The Social Centre was an initiative of the neighbourhood residents, school children parents and so. It has two main objectives concerning empowerment (participative democracy) :

1-Towards the volunteers : change the mentality of the volunteers (see voluntary organizations). The president says : in the past they would teach with a sort of paternalist relation considering the other

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depending totally on their generosity. To-day we make workshop to prepare them to a different teaching relation, they have to analyse their personal reasons to be a volunteer. We work on their representations of the people they are going to teach (stereotypes for example). 2-Towards their members, mostly migrants : we prepare them to become autonomous in that society, which concern especially women, and prepare them to enter the Conseils de quartier, and the participative civil society. Other examples of associations could be given such as the one receiving very disadvantaged people. They help their members but in return ask them to organize a workshop with one of their abilities such as for example, a meal from their cooking tradition. They teach them to be able to help each other with informations before asking the association, saying they must first use their own ability.

c) Interdisciplinary and shared urban diagnosis When a municipality build its project there may be a complete diagnosis of the situation that justify demolitions. We saw diagnosis conflicts between the authorities and the residents about their area. In some examples such as one using participation, for example, the local authorities were saying : “your area has to be rebuilt with the demolition of your blocks because you are “enclavés” (enclosed) the residents would answer : “we are not, we live near the centre and there is good transportation. Besides, there has been a regeneration of the blocks a short time ago”. They felt a discourse of discrimination as the word has not only a territorial signification but also a social signification as it is used for segregated ethnic communities with economical problems. It shows the gap between identity prescribed and identity perceived. The debate appeared with its own mechanism of domination hiding probably the municipality interest (demolition to receive an amount of money to realise a housing project for medium class in such a good localized area. A shared urban diagnosis leads a different process and refer to several socio-anthropological methods :

- individual or group diagnosis during walking, with a sociologist and an architect. We register and film or take pictures as they show us their area or organize the visit of the area they are responsible for, explaining their job “ in situ”.

- diagnosis through forums accompanied with a power point and diaporama to bring their own view, their hopes, relate their experiences of the place. On the other side, we bring them informations and also our professional view on the social and architectural situation and needs. We teach them how to read a design project, etc. A process of bottom-up and top-down discussion is engaged.

- in parallel the reconstitution of residential and social itineraries in an extended way , what I call “Trajets migratoires” in order to analyse the resources of bicultural people and migrants who have different cultural experiences (from rural to urban, from different countries and life styles etc…). It includes notations of their successive spatial practices and the organization of their domestic space(8). In the case of the re-planning of the public space we built a protocol of social and architectural objects criterias to be observed, and the temporality of the observation : which are the relevant hours during the day and the night. The people concerned by the area to be interviewed (interviews and random interviews in the streets (micro-trottoirs). The shared urban diagnosis has to be built with the idea of discovering the resources of the area, human resources which are often hidden, activities and also by pointing out ordinary buildings having an historical interest and bringing historical continuity for the residents, making the link between the past (memory) and the changing city. Several questions have to be reformulated such as : is security coming from gated spaces or from conditions for sociability offered ? It is a problem when the formal dispositions has to assume a social function such as gates for protection against insecurity. The shared diagnosis prepare the step of the participative workshop on the collaborative project. . In to-day urban policies –but not everywhere at least- we want to suppress all the people who work and are responsible for public spaces arguing an economic reason. We create public spaces each time smaller with the gated communities and condominium, taking away social confrontation or conflicts but also communication or sociability : gates everywhere in the city, empty public spaces without any collective activity brings insecurity or exclusive appropriations. . In-between spaces are very important to create social and cultural interactions, alterity where the differences between people reduce through neighbourhood relations. (Villanova 2007) The (inter)cultural centre, an architectural project in the dilapidated Cova da Moura where live Capverdians, planned with Madalena and Pr Manuel Vicente and their students, seems a very interesting project to offer an

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in-between space where different social classes have a reason to share cultural events relying on the production of culture (music, etc…)of these minorities.

d) Educational environment : the resources of the district In the 1960 the influence of a movement in Europe “autogestion” (self management) that was imported from the experience of Yugoslavia, and popular education that came from progressist Catholicism to help popular classes that did not receive high school and academic education. As several experts say, in Latin America the catholic church have had a role on the poor classes to help them to manage their everyday life (in favelas for example in Brazil, or in Peru). There was also popular education and culture driven by French communist party. We had strong education parallel to academic access which was restricted. Even if it is not so restricted to-day, our society suffers from the big fall of popular education. However, large associations networks, offer opportunities to enter the public arena but also a very strong local culture that is made not only for adults but also for youth ; It brings an educational environment for students, teenagers through school time meetings or during leisure time. They may find apprenticeship to hold local responsibilities and collective interest. Some municipalities have youth councils (but others have children councils that prevent from any consultative danger !) There are also local democratic organizations for civil society to take part in the municipality discussions : Conseil des anciens (seniors council) occupies with the everyday life and difficulties of old people, organize conferences such as one about solitude in old people’s life Belleville is a good example to refer for its production of local culture and associations, artistic, social or cultural in a large sense, from modern dance and painting workshops, to Chinese cooking or very special visits of the old historical area where several private houses open their door to the visitors, but also artists and craftsmen . All of them have pedagogical objectives towards the transmission of human values such as teaching interest about different cultures. Several experiences directed by artists for young people (such as photographic workshop)work with methods of active pedagogy. The cross-cultural pedagogy, the active pedagogy, rise the basis for participation, but it should begin at school. Many of these associations belong to a large network, very often national or international. Their founders (fondateur) usually live in Belleville. The urban resources of the district in that way offer to youth an educational environment which should have an impact on their future life as far as participation of civil society is concerned, at least, for several of them.. It really looks like a different urban culture concerning the new generations. La Bellevilleuse : At the end of the eighties the association appeared to struggle against the municipal project of demolition of an ancient area in Belleville. The association obliged the municipality to modify the project in direction of soft intervention. They succeeded to mobilize between six and seven hundred people to discuss with the municipality and housing organizations. They worked with the association of the local artists making exhibitions etc….showing the value of the area of Belleville, its social networks, its common architectural heritage. To-day, they are sometimes partners for the municipality being able to give their advice in planning and design questions. They succeeded in driving personnal interests to collective interests but they did not succeed in repeating this type of action unless they have some influence through local citizens councils conseils de quartier) (Fayman 1998a) 2008b) IV-Conclusion This paper has proposed key issues so that minorities and disadvantaged people could bring their abilities and competencies to the collectivity. The aim of participation in urban renewal should be to invert situations of subalternity and dependency. Yet, it goes against an ordinary image and stereotypes on minorities and people with low income or depending on social welfare, etc. It shows how an increase of local social and cultural organizations has a real impact on mobilizing (empowering) civil society and minorities preparing them to be partner, to bring solutions often less expensive in urban planning. It brings at the same time a space for discussion between different groups about their common space. The associative experiences in Belleville show, how it may reduce the gaps between social classes and cultural differences ; how minorities and others may use their rights in a creative manner.

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In France, public spaces are considered good for looking at, for sight seeing, as image of a social status, they cannot be used. So they are empty without activities and often occupied only by deviant people. Yet, they could be used in a different way to receive activities such as summer feast for local associations that bring sociability and other activities that can be lucrative for unemployed people, such as collective gardens and small open markets to sell their fresh production etc…It would bring direct local production and micro-local artistic culture like in Belleville. It would also recreate through all sort of activities, social relations and cross-cultural relations instead of an idealistic idea of public space just to sit in and look at the sky, which brings exclusive appropriations ; public space needs human life and people responsible for the place. Aesthetic value of public space may not replace producing culture by consuming culture coming from the official. We have to look for creativity from local and popular culture, from local artists and migrants, what Belleville teaches us. It envolves associations and local authorities. Bibliography Bacqué, M. & Rey, H.& Sintomer, H. dir. (2005), Gestion de proximité et démocratie participative, une perspective comparative, La Découverte, Paris. Bonnin, Ph.,& Villanova R. de (dir.), (1999), D’une maison l’autre. Mobilités et parcours résidentiels, Creaphis Grâne. Davis, M. (2006) Planet of slums, Verso, London & New York Després, C.&Vachon G., (2005), “Design urbain en collaboration. Bilan et enjeux », Géocarrefour, vol.80. Fayman, S., (1998) a) avec Catherine Desché-Louit, Salwa Azzabi, Louis Bastin, Marine Lavisse : « Faire la ville avec les associations d’habitants ? », ACT Consultants pour le Plan Urbain, Paris. Fayman, S., (2008) b) « La Bellevilleuse ou la mise en œuvre du droit à la ville » in Belleville, figure d’un quartier populaire entre mythes et réalités, Deboulet A ; et Villanova R. (de) (dir.), Creaphis Grâne, à paraître. Hong Yak S. (2001) Cahiers de l’IPRAUS Paris “ les KTT à Hanoï : pratique d’un système urbain hybride et prémisses d’une modernité endogène” Lelévrier, Ch., avec la collaboration de Vignal C, Le Garrec S, (2008), « Les démolitions de logements sociaux dans les opérations de rénovation urbaine, mobilités et trajectoires socio-résidentielles », Rapport PUCA Paris. Rey B, « L’organisation des grands ensembles et le rapport au centre à Boukhara (Ouzbékistan) », Mémoire de 5e année, Ecole nationale supérieure de Paris-Belleville, dir. R.de Villanova avril 2008 Segaud, M, (2007), Anthropologie de l’espace, Armand Colin Paris Villanova, R.de (1996) “Les migrants propriétaires. De la location à l’accession y a -t-il des règles d’agrégat ? », rapport PUCA 1996 Paris. Villanova, R. de, dir.(2007), Conjuguer la ville, Architecture, anthropologie, pédagogie, Paris L’Harmattan. Villanova, R. de & Leite, C. Raposo, I . (1994) Maisons de rêve au Portugal, Creaphis Grâne, traduction en portugais Casas de sonho (1995), ed. Salamandra, Lisbonne Notes 1 after a period during the 1960-70, Petit séminaire de Marseille, renovation of the district of l’Alma-gare in the city of Roubaix) See also the SAAL experience during the Revolution in Portugal (1974) ref. O Processo SAAL e a Arquitectura no 25 de Abril de 1974, J. A. Bandeirinha, Imprensa Universidade Coimbra 2007.

2 Conseils de quartiers : law of 2002 for cities of 80 000 hab. And over. In several areas there already have, such as in Paris already in 1996

Conseil des residents étrangers non européens : council for foreigners non european residents

3 cities have nearly 45% of social housing, others have less than 20%, in the second case the municipality pay a tax to the region until it arrives to the 20%, the first one wants to build private and owners’housing) The recommendation is using the process of participation of residents concerned.

4 “residentialisation”( Lelévrier 2005) “ : ce terme apparu à la fin des années 1990 désigne une pratique de réaménagement des espaces privés et publics d’ensembles de logements sociaux qui vise à clarifier les statuts des sols, à marquer par une clôture les limites entre espace privé des logeurs et espace public de la ville, à créer des unités résidentielles (immeubles et espaces attenants) souvent plus petits que l’immeuble. Ces aménagements vont souvent de pair avec une réorganisation de la gestion, une sécurisation des accès aux résidences et cherchent à favoriser une meilleure appropriation et un contrôle social plus grand des locataires. C’st un mode d’intervention qui conserve l’existant mais le réorganise en référence à une conception plus traditionnelle de la ville autour de parcelles, d’îlots et de rues. 5 See Lelévrier Ch., (2005) « Rénovation urbaine, relogement et recompositions territoriales », revue Fors-recherche sociale n°176, octobre-décembre

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6 One is a collective research about urban renewal, demolitions and citizens empowerment, which analyses several cases in French cities and directed by Agnès Deboulet. (PUCA). It analyses the role of social movements in participation and the process of urban citizenship. The other study is about a participation project in a public space in a multicultural area in Paris with the objective of building tools for civil society participation.

7 Social housing represents 16% of the total housing stock. 8 Christine Lelévrier did social and residential itineraries of the people who were in the situation of rehousing. Rebuilding trajets migratoires is more anthropological and with spatial and sometimes architectural informations as I used it in several researches among which Maisons de rêve au Portugal.

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Civil society in the promotion of housing rights in Portugal

Helena Roseta – Platform on Housing Rights, Portugal

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From shame to pride. The role of microcredit in developing citizenship

Luisa Brunori, Professor, University of Bologna

AVAILABLE SOON

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6. DEMOCRACY, CITIZENSHIP AND PARTICIPATORY GOVERNANCE Chapter Introduction

by Rosa Matos

Why this panel on democracy, citizenship and participatory governance in relation with economic, social and cultural rights? Our assumption is that human deprivations such as hunger, homelessness, illiteracy and preventable diseases, for example, are not inevitable social problems or purely the result of lack of resources – they are the result of laws, policies and action that undermine people’s human rights. Who is responsible? It is true that States, through governments, have the primary responsibility to realize human rights. But an active citizenship is also fundamental. Civil society organizations of different types play an essential role in pursuing common good, by holding governments accountable, by generating public opinion and influencing policymakers and also, and very importantly, by taking a direct part in the decision-making process and mobilizing different actors in generating innovative solutions to social, environmental, and governance challenges, and this by engaging in the long term, either at the local, national and international levels. Why is it so important to foster collaboration between sectors, territories, disciplines or communities of thought? It is because the challenges are indeed immense. Just to name one, on what concerns the state of democracy, it is useful to draw attention to the alert of one organization. Human Rights Watch on its World Report 2008 identifies a disturbing trend: the degradation of democracy around the world, which accelerated notably in the past year. What are the reasons for this trend…? We would highlight one, as pointed out by Human Rights Watch: any genuine concept of democracy should have a broad range of human rights at its core. So, what is the meaning of an election if you don’t have a genuinely free press, if you don’t have a range of competing political parties, if you don’t have a vigorous civil society, rights for minorities…? It was in this context and perspective that we invited three panellists to contribute with their views and recommendations to our central question: How could action in the realization of economic, social and cultural rights be enhanced and contribute to strengthening democratic consensus, revitalizing citizenship and shaping new models of governance?

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Governance and Participation – empowering communities for justice and equity

Lia Vasconcelos – Professor, New University of Lisbon

Critical neighborhoods can surprise us by their potential for survival in adversity, which if well used can be a contribution to innovative urban policy. For this to happen it is essential to empower the community key actors. While doing this we are contributing to assure justice and equity. This paper focuses on a recent experience of a participative intervention in a critical neighborhood in the Lisbon region – Cova da Moura. This occurred in the context of a recent Governmental Program for Critical Neighborhoods aiming at the development of new urban policy practices, favoring local empowerment and supported by a new way to articulate the formal and informal model of decision-making. Decision was delegated in a group of local partners who developed jointly a diagnosis, a consensual SWOT and, finally, agreed on a plan of action signed by all the partners and presently in implementation. This learning process culminated in a collaborative joint solution. The empowerment of the group of local partners which was given power of decision made a difference. The process empowered the participants giving them an active voice and contributing for assuming the responsibility of the decision. The results of the process included the recovering of the local networks, the intensification of information fluxes, a growing awareness of each participant role and the reinforcement and maturity of local institutions.

People today have an impatient urge to participate in the events and processes that shape their lives”52

THE CONTEXT In Portugal, as elsewhere in Europe, the intervention in areas viewed as problematic have been a permanent concern of governments. This is confirmed by the innumerous European and National programs implemented aiming to solve specific issues in these areas (URBAN, PROQUAL, PRU, etc.). A society of growing complexity and increasingly diverse poses new problems and creates new contexts that require innovative ways to intervene. Within this setting participation has become a central issue of our time particularly as a result of social struggle for inclusion in cities either when talking about housing, funding mechanisms, grant application and even governance (Jones, 2003). Participation “can become a source of tremendous vitality and innovation for the creation of new and more just societies” (United Nations Development Programme, 1993, p.1). Participation is said to contribute to projects bringing “efficiency”, “sustainability” and “empowerment” of the participants, but even with all these positive claims participation has also been under severe criticisms (Jones, 2003). In the 90’s governance supported by participatory practices involved “complex sets”53 (Stoker and King, 1996) including in these the community sector (Jones, 2003). From then on the role o active citizenship, placed “’community’ participation at the centre of local regeneration initiatives” (Jones, 2003, p.584). The conviction from the point of view of policy makers is that:

52 United Nations Development Programme, 1993, p.1 53 public, private and voluntary sectors

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- “involving people is an end in itself – giving voice, especially to potential ‘social excluded’ individuals and groups, strengthening the capacity for independent action and intervention by these excluded neighborhoods in regeneration initiatives (Jones, 2003, p.587,588);

- “participation in the program by such individuals and groups is also seen as a means of addressing some of the economic problems that these may be experiencing, through, for example, more sensitive training, improved educational attainment, involvement of community based economic development issues and projects, usually pre-determined” (Jones, 2003, p.588)

The central idea while integrating participation in these processes, is to empower community actors, turning them in active agents of change for a more just and sustainable society (Jones, 2003). Participation can assume several levels from more passive formats (just informative) to more active, when participants become part of the process, interact, construct ideas and strategies together and influence the decision process. This paper refers to this type of participation. At European level urban intervention aims to create sustainable communities: “places where people want to live and work, now and in the future” (Bristol, 2005) These communities should are diversified, reflect the local specificities, do not obey to a previous pattern and have to comply to eight characteristics: (a) active, inclusive and safe54 (b) well run55, (3) well connected56, (3) well served57, (4) environmentally sensitive58, (5) thriving59, (6) well designed and built60, (7) fair for everyone61 (Bristol, 2005, p.6). THE PROGRAM The Neighborhood: Cova da Moura Following this line, the Portuguese government through the Secretary of State of Land Use and Cities launched the Program Initiative Critical Neighborhoods62 aimed, through the active involvement of a group of local partners, to develop innovative socio-territorial interventions in areas presenting vulnerability factors. Three areas were selected for this intervention: Lagarteiro (Oporto), Cova da Moura (Amadora) and Vale de Amoreira (Moita), these two last in the Metropolitan area of Lisbon. This paper reports the experience of Cova da Moura a self constructed neighborhood. This multiethnic community emerged on illegally occupied private property in the second half of the 70’s as alternative for shelter for people returning from the previous Portuguese colonies, in a setting with almost a non-existing housing market unable to respond to the pressure of a peak on demand for homes. Initially it was just a slum, but rapidly the area started to consolidate as the newcomers were able to stabilize their socio-economic situation and today it is an urban area as many others in the periphery of Lisbon with the infrastructures and facilities of other areas of the town. Along about almost 30 years their residents lived on the edge of illegality either because the construction was located on

54 “Fair, tolerant and cohesive with a strong local culture and other shared community activities” 55 “with effective and inclusive participation, representation and leadership” 56 “with good transport services and communication linking people to jobs, schools, health and other services” 57 “with public, private, community and voluntary services that are appropriate to people's needs and accessible to all” 58 “providing places for people to live that are considerate of the environment” 59 “with a flourishing, diverse and innovative local economy” 60 “featuring quality built and natural environment” 61 “including those in other communities, now and in the future” 62 Iniciativa Operações de Qualificação e Inserção Urbana de Bairros Críticos

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occupied private property or because of the difficulties of legalize their immigration status. This hardly bearable situation could only be overcome by the residents through the support and sharing within the strong complex social network developed along the years of adversity. The active local associativism, through two different strategic options (Horta, 2006) – the Resident Association and the Young Windmill Association – “imprint a high level of concretization of actions inside the neighborhood” (Vasconcelos, 2007, p. 108). The neighborhood has 5 500 residents being 2/3 Cape Verdian, 45% of its residents under 24 years of age and 126 commercial activities. Despite whole activity going on, the neighborhood has acquired a bad stigma due to some unfortunate events with the police, magnified by some press searching for sensationalism (Malheiros et al., 2006). The Setting The program was set up to have a Team (Group of Technical Support- GTS) working closely with key actors operating in the neighborhood63 (Group of Local Partners – GLP) integrating institutional representatives of the national and local public administration, leaders and associates of the four local associations64 and other voluntary groups that operate in the neighborhood. These two entities, where most of the action occurred, were coordinated by the National Housing Institute (INH)65 under the Secretary of State of Land Use and Cities, and in close articulation with a panel of 7 Ministries66 (Group Inter-Ministerial - GIM). When the team started the work there were two plans on the table generating a lot of opposition: one on the side of the Municipality planning to throw down 2/3 of the neighborhood and the other from the side of the local associations proposing to maintain the construction in general, but assuring some improvements. The program targeted to act in the neighborhood as a whole articulating the participation and contributions of the different key actors identified and working collaboratively within the GLP, the forum to debate and create new meaning, and the arena invested with the power of decision (Bryson et al, 1992). The Process Using interactive methodologies of third generation and professional facilitation the twelve meetings carried out with the GLP (lasting between 4 to 7 hours each) developed jointly a diagnosis, a consensual SWOT and, finally, agreed on a plan of action signed by all the partners, including the government, which is presently in implementation. “This intense and continuous active involvement of the participants of the GLP allowed to collaboratively and consensually construct inputs for the development of the socio-territorial component in agreement with the intervenients operating in the neighborhood, assuming the co-responsibility for the actions, adapting them to the local situation and contributing to assure future implementation” (Vasconcelos, 2007, p.112). Simultaneously the GTS developed contacts, carried out interviews and questionnaires with different actors for a better understanding of the issues under discussion and collection of further information. 63 A total of 26 64 Associação Clube Desportivo, Associação Moinho da Juventude, Associação dos Moradores e Centro Paroquial Nossa Senhora Mãe da Buraca 65 Today the Institute of the Urban Rehabilitation and Housing (IHRU) 66 Presidency of Ministers Council, Ministry of Internal Affairs, Ministry of Environment, Land Use and Regional Development, Ministry of Work and Social Solidarity , Ministry of Health, Ministry of Education and Ministry of Culture.

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Due to concerns and complains expressed by the residents not directly involved in the project, the team considered of the utmost importance to carry out two workshops to include these groups. However, despite all the efforts to try to bring to these participatory forums the youngsters they failed to show up. Being the neighborhood dominantly youngster (45% with less than 24 years old), this group also represented the potential for continuity. Therefore, it was absolutely necessary to understand their views. A workshop was set up to address them and a supplementary effort of two elements of the team was done to contact most of them personally with the support of one of the young residents who was familiar with the neighborhood and knew where to find them. In this way it was possible to have a workshop with this group and to understand that they value the neighborhood, want to live there, and expect to make it safer for all. GOVERNANCE, PARTICIPATION AND EMPOWERMENT This learning process culminated in a collaborative joint solution. The empowerment of the group of local partners, which was given power of decision, made a difference. The process empowered the participants, amplifying their voice and contributing for them to assume the responsibility of the decision. The results of the process included the recovery of the local networks, the intensification of information fluxes, a growing awareness of each participant role and the reinforcement and maturity of local institutions. What distinguishes this from other processes is the fact innovative way that was designed to articulate the formal and informal sphere of decision in a panel – the 26 key actors in the GLP – invested with the power of decision. This represents an alternative innovative structure of governance that illustrates new ways to deal with the complexity of our settings. From start this had a better chance to allow for the creation of a more genuine participatory process, with effective deliberation and conducting to empowering of the participants. The second ingredient that played a key role in the process was the use of methodologies of 3rd generation that focus on the non-coercive modes of mediation using interactive methods and the professional facilitation. Both of these provided the tools for assuring relevant results that fed the socio-territorial component with participants’ contributions. FINAL CONSIDERATIONS The richness and success of this process can be measured by the construction of different forms of capital: social (in form of networks, partnerships and coalitions), intellectual (by creating new knowledge) and political (creating empowerment to act and influence the decision) (Bryson et.al, 1992). In fact, participants reported that: (1) social capital - the interaction among them and others have intensified along the process; (2) intellectual capital - a common vision was collaboratively constructed and participants began to develop new understandings of each others views; (3) political capital - finally, participants internalized the process (e.g., by the later phases they helped in setting the room for the meeting while initially they left that to the facilitators team that responsibility) and rules (e.g., in negotiations afterwards the participants assure that the rules learned along the process continued to be followed, including that everybody had the same power of intervention). But, more than all the others, it was the institutional capital that shows more clearly the results of the empowerment of participants with the emergence of a new institution representing the four local associations: the Neighborhood Commission.

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BIBLIOGRAPHY Bryson, John M;Crosby, Barbara C. (1992) Leadership for the Common Good. Tackling problems in a shared-power

world. San Francisco, Jossey-Bass

United Nations Development Programme (1993) World Development Report. New York:UNDP (http://hdr.undp.org/en/media/hdr_1993_en_overview.pdf) Jones, Peris S., (2003) “Urban Regeneration’s Poisoned Choice: Is there an Impasse in (Community) Participation-based Policy?” in Urban Studies, Vol.40, nº3, 581-601, 2003 Malheiros, J.; Vasconcelos, L. ; Alves, F. S. (coordenação geral) (2006). Operação Cova da Moura, Vol I - Diagnóstico, Iniciativa Bairros Críticos Lisboa: INH, Julho de 2006. Stoker, G.; King, D. (eds.) (1996) Rethinking local democracy. London: Macmillan. UK Presidency of the European Union, the Office of the Deputy Prime Minister (2005) Conclusions of Bristol Ministerial Informal Meeting on Creating Sustainable Communities in Europe, Bristol on 6-7 December 2005 Vasconcelos, Lia T. (2007b) “Cova da Moura: uma experiência de intervenção socio-territorial participada”, in INFORGEO, 20/21:107-113.

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States in Crisis, Democracy and Citizenship

Mariano Aguirre, Fundación para las Relaciones Internacionales y el Diálogo Exterior, Spain

AVAILABLE SOON

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ESCR Facilitate Participative Democracy, But Not Spontaneously

Michel Doucin, Former Ambassador for Human Rights of France

Dear Friends Many things have been said, since yesterday, concerning this question of ESCR as a means of enhancing collaborative governance. And a strong consensus has emerged around the idea that the ESCR approach includes an important potential for improved Democracy. With the intention of not repeating what previous speakers have already said, my purpose today will be limited to, and focused on, one question only: what are the conditions for going from idea to realization, i.e. what is the price we have to pay to overcome the main obstacles which are blocking the potential for a stronger democracy implicit in the concept ESCR ? I shall elaborate on one example concerning France, the recent Right to Claimable Housing Law- called the DALO Law -, passed in March of 2007. It enshrines the revolutionary declaration that every legal resident in France will be in the position of claiming the support of the State to get a decent home by the end of 2008 for some of them, end of 2012 for the others, if his personal means are not sufficient to allow him to afford it. From now until the end of this year partly, 2012 entirely, the State services, in close collaboration with local governments, within newly created Mediation Commissions, have to set up lists of families and individuals entitled to ask them for the fulfilment of this new Right to Housing. They will have to specify, for each, their degree of priority according to social and emergency criteria implicitly referring to core human rights: Right to Life, Rights to a Decent Livelihood, to Social Protection, to Health, etc. If the State does not fulfill the new legal obligation to provide a decent shelter for everyone living in France, the persons concerned, considering that their right to housing has not been respected, will have the possibility of bringing their case before a Court starting 2009 or 2012 according to the situation, either under their own, or assisted by an NGO. As you know, this law was elaborated by the last Chirac Government, under the strong pressure of an NGO led by an actor, Augustin Legrand, who benefited from precious support from much of the media, impressed as they were by the hundreds of tents temporarily housing the homeless which were set up by les Enfants de Don Quichotte all along the Seine in one of the locations in Paris most frequented by tourists. This law could be seen as a victory of a form of collaborative governance, being the result of resolute civil society support, if we were not also aware of the fact that the idea behind the law had been vainly promoted for decades by other NGOs. This leads me to a first remark : to have ESCR better recognized, must we be propelled forward by the overwelming power of the Media into quick-fix solutions , a situation which might be in contradiction with the broader objectives of Democratic Governance ? In France many people consider that the DALO Law, in view of the conditions under which it was conceived, carries within it its own limits : it could be understood as no more than a “media-bill”, passed into law for its show-off value. Personally, I consider that this Law is nevertheless interesting because of its promise and because it raises three additional questions : first, it creates the obligation for the public authorities to create transparency in a field where the darkest aspects of our representative democracy are at work ; secondly, it carries the potential for collaborative governance among the different public authorities involved and organized forms of civil society ; thirdly, it might very well bring to a head an important debate concerning not only housing policies but also the exclusive –versus inclusive – effects of our Welfare State. First point: the law will introduce clarification in a very opaque area of social policy. The complexity of legislation, the shared presence of public and private subsidized housing operators, and also the effects of decentralization have created a situation such that today the responsibilities of public housing administration

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are understandable by only a few specialists. It is, indeed, a field where Local Governments – Cities, Districts and Départements – share their respective attributions with the State in a very sensitive and politically lucrative sector. Decisions are made through a process totally lacking in transparency in the back-office of various political kitchens, far from any scrutiny with regard to the equity of the housing allocations. The DALO Law, requiring that public lists of priority families be established, using clear and transparent criteria, will create a healthy panic in the political world. And this should benefit Democracy. Second remark: these lists, as provided for by the Law, will be elaborated in a collaborative process with a series of different social organizations, including NGOs of various kinds. This will obviously promote democratic and participative Governance. It will also lead to the necessity of introducing more transparency into the social NGO governance system... far from being at its best in France. Serious conflicts have already broken out among some of them. The positive aspects of the situation are clear; but it would be very counterproductive if this were to lead either to the bureaucratization of NGOs due to an excess of rules of governance in a sector whose legitimacy is also based on its capacity to quickly adapt, or to the weakening of Civil Society due to hard-nosed debate and dissension. Third remark: For a fairly long time Local Governments in France have already had a significant obligation as regards Public Housing: that of hosting on local government property a total of at least 20 % subsidized housing devoted to low-income families. Those who do not fulfil this duty have to pay fines. Years after the establishment and enforcement of this obligation, many Mayors prefer to pay the fines rather than take the risk of having their electoral base impacted by the development of Public Housing. This has widely contributed to creating an urban geography split between middle-income city “downtowns” and poor suburbs on the periphery, all of which, combined with the phenomenon of immigration, has led to the crisis in the suburbs. Will the DALO Law create a new incentive for the politicians to better respect obligation of 20 % Public Housing I have mentioned? I think so. Will it be enough? I have some strong doubts about that. But I can safely bet that the DALO, fostering a spirit of transparency and dialogue with different sorts of stakeholders until now kept outside the process, will provoke important changes. In any event, the DALO represents a real challenge in the status quo. To conclude this short presentation of the questions raised by our recent Law on the Rights to Claim Housing, I would like to make several more general remarks as regards the potential for increased democracy and collaborative governance contained in the promise of ESCR. It seems to me first that any right is condemned to remain a fiction until such time as the tools exist to make that right accessible. If the classic distinction between First and Second Generation Rights is to a great extent erroneous, it is nevertheless a true distinction as regards the tools needed to make a right a reality. The future International Protocol on ESCR, whose creation we have, all of us and particularly Catarina, successfully fought for, will probably be a key element in the tool-box we need. But there is much to do, also, at regional and national levels, for the real enforcement of ESCR. The example I have previously presented leads me to another reflection on the lack of preparation of Civil Society, in most of our countries, to play an important part in this process. The European NGOs appear to me, indeed, far more used to dealing with violations of Civil and Political Rights than with those of ESCR. Few have developed alert systems; few are specialized; few have organized campaigns with regard to these sorts of rights. In my opinion, this point of weakness requires special attention and new initiatives. Let me give you 4 examples of what I mean:

1. The ESCR Committee has to be encouraged in its timid efforts to help national civil societies organize to become active stakeholders in its procedures, imitating, in this way, the CEDAW, an organization which has developed for a long time a close complicity with feminist NGOs.

2. The Committee of the European Social Charter, which appears also very cautious regarding what should be done to better use the tool that it represents, has also to be put under pressure of the Civil Society of the members of the Council of Europe.

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3. The procedure of the National OECD Contact Points, 8 years after its creation, has still been only rarely used by NGOs in situations of violations of ESCR by transnational companies, all of which suggests that the OECD should be stimulated for doing more to inform the public of this potential avenue for action.

4. The new European Agency for Fundamental Rights is not expected to play a major role in this field, due to the position of several States, long hostile to the inclusion of ESCR in its attributions; but things could change in the future under Civil Society pressure if we work toward that. In a last analysis, the possibilities offered by national laws, among which many relate to mediation, arbitration and quasi-jurisdictional bodies, require more pedagogical explanation to become mainstream.

Civil society organizations, insufficiently prepared to help citizens to take their ESCR into their own hands, have to be trained in such a manner that those rights will really be enforced through the various instruments included in the the international tool-box ; this is a big challenge and a key project. At the end of the day, it is the question of what kind of Democracy we are working for, which is at stake. The Welfare State, fruit of the second half of the 20th century, is synonymous with the Consumption of Public Services, our control with regard to the grander global orientations being limited to periodic opinion polls through which we express our preferences. The exercise of ESCR is very different: it is direct and permanent. This difference represents the very threshold of, and the gateway to, a truly participatory Democracy. ESCR offers us, from this perspective, a broad field of action in which to achieve an enhanced participatory Democracy, on condition that inclusive implementation methods be intelligently elaborated. There is much to do on that perspective, but it will be well worth the pain.

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KeyNote Address | Operationalization and Vindication of Economic, Social and Cultural Rights

Alfredo Bruto da Costa, European Committee of Social Rights, Council of Europe

I wish to begin by thanking the organizers of this Conference, namely CIDESC, for their

kind invitation to participate in this event and for the opportunity to address such a qualified audience.

May I also take this opportunity to congratulate the Chair of this session, Mrs. Catarina Albuquerque, for the success accomplished by the working group that she had the responsibility to chair, regarding the optional protocol to the UN Covenant of Economic, Social and Cultural Rights.

We should hope that the process of approvals and ratifications that must follow may be smooth and swift. Indeed, time is running up. The poor and the socially excluded, the hungry and the houseless, men and women, have waited for too long and can wait no more.

*

* *

With this due introduction, I take up my subject, which I breakdown into two questions: Firstly, to what extent have the economic, social and cultural rights been operational and vindicatable in Europe?

Second, what should be done to strengthen the effectiveness of the charters, conventions and covenants aimed at protecting those rights in the European context?

To begin with, we must bear in mind that, in what concerns economic, social and cultural rights, in general, many European countries are bound by at least three major comprehensive treaties: the International Covenant on Economic, Social and Cultural Rights, the European Social Charter (Revised) and the Charter of Fundamental Rights of the European Union.

We could add some other international commitments, such as the ILO Conventions.

Therefore, the first step towards the effectiveness of those treaties seems to lie in the domain of the institutional setting.

Both, with regard to the supervisory bodies as well as in what concerns the reporting and other procedural obligations of the contracting parties, we need a high degree of coordination, if not of unification.

Should the contracting parties have to report, or respond on complaints, to three or more separate supervisory bodies, no time would be left to develop and implement policies and measures to protect the rights. This would be the most effective and cynical way of combating the very notion of human rights.

In such a context, my presentation will have an unavoidable bias, stemming from the fact that my experience in this field comes from one of those institutions, namely the European Committee of Social Rights, which is the supervisory body of the European Social Charter of the Council of Europe.

This Conference addresses the issue of citizenship “in an enlarged Europe”.

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As you all know, the notion of Europe seems to be growing more and more elastic, so that one may ask whether we are moving towards a «new notion» of Europe or towards a «no notion» of Europe.

However, at least at the present stage, the geographical scope of the Council of Europe, with its 47 member-States, seems to be the largest idea of Europe that we presently have.

In addressing the issue of the extent to which the European Social Charter is operational and vindicatable, I wish to examine three aspects that seem relevant in this respect:

- firstly, the way in which each article defines the nature of the right and, correspondingly, the type of engagement and responsibility of the Contracting Parties (this has to do with the case law of the European Committee of Social Rights);

- secondly, the effectiveness of the supervising mechanisms; and

- thirdly the type of sanction for non-compliance with the Charter.

I will not go through each and every article and paragraph of the Charter or comment on each of them. I chose only a few, those that are, perhaps, more original or present special problems that are not yet totally solved.

On the other hand, I will analyse the Revised version of the Charter, which is broader in scope and integrates the additional protocols of the original (1961) version.

In a quick look at the 1961 Charter, we note that, out of its 19 articles, 13 (i.e. 2/3 of the total) have to do with work. The remaining 6 are distributed by various areas of individual and social life: health, social and medical assistance, social welfare services, disability, family, and mothers and children.

It does not seem surprising that in the late 1950s (the period when the Charter was drafted), the notion of «social rights» was biased towards the labour related rights. Not by overemphasis of the latter, but by underestimation of the non-labour-related social and economic rights.

We know that, historically, the social and economic rights developed first in the realm of labour, and therefore this was the area more and better developed regarding those rights.

Since the industrial revolution, labour relations generated a field of rights and duties that consolidated in one of the branches of law, which is precisely the labour law.

Even the right to social security, inspired by the Bismarkian philosophy, in the late nineteenth century, was, and still remains in many countries, centred on the link between social insurance rights and labour ties or relations.

In the meanwhile, the notion of rights extended to other areas, under the umbrella or banner of the welfare state, in the European context.

At the same time, some countries detached the social security rights from the labour ties, and considered the economic and social rights, including social security, as citizenship rights.

On the other hand, the twentieth century was noteworthy for major social changes and the emergence of new social problems, as well as for the deepening of the understanding of those problems, brought about specially by the human and social sciences.

Although perhaps the notion of social, economic and cultural rights had not been adopted by the national law, much of what we call « social policy » included effective social and economic rights.

The Revised European Social Charter was approved in 1996. Rather surprisingly, the proportion of labour related articles is precisely the same as in the 1961 Charter. However, the Revised Charter has a deeper insight into the situation of the more vulnerable groups.

Firstly, article 15, concerned with persons with disability, has a much wider scope than the original Charter, namely considering aspects that include but go beyond labour relations, covering the right to independence, social integration and full participation in the life of the community, without ignoring that one of the major aspects of social integration is the inclusion in the labour market.

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Secondly, article 23, concerning the elderly, is now full part of the Revised Charter.

Thirdly, three new fundamental articles are introduced: article 31, on the right to housing and to protection against homelessness, article 30, on the right to protection against poverty and social exclusion, and article E of Part III, on non-discrimination.

Finally, article 19, on the rights of migrant workers has two new items, both envisaging better social inclusion of the migrants and their families.

The articles of the Revised Charter are very different from each other, in scope and content. Some are more concrete; others more vague. Some allow a clear interpretation; others are of a more difficult interpretation.

This means that the operationality and the vindicatability of the Charter cannot be assessed in an overall and uniform perspective.

I will take some relevant examples.

One of the more important articles ─ precisely the article that deals with the right to work ─ is stated in terms of a mere «objective». In fact, article 1, paragraph 1, states that

“With a view to ensuring the effective exercise of the right to work,

the Parties undertake:

1. to accept as one of their primary aims and responsibilities

the achievement and maintenance

of as high and stable a level of employment as possible,

with a view to the attainment of full employment;

2. (…)

3. (…)

4. (…)” 67.

It is clear from the text that instead of defining the right, the Charter establishes the obligations of the governments “with a view to ensure the effective exercise of the right”, without any threshold that may allow us to verify whether those obligations have or not been fulfilled.

Stated as it is in the Charter, we must admit that the right to work cannot be considered as a claim-right. Especially after the oil shocks of the mid 1970s, the right to work turned into a mere objective and has been difficult to be assessed in terms of compliance or non-compliance with the Charter68.

It should be noted that not only is Europe competing with the rest of the world, but that the European countries are also competing among themselves.

Therefore, it is difficult to say to what extent there is a trade-off between lower and higher unemployment rates within the European context.

Furthermore, the average unemployment rate is certainly a matter for concern. However, it is not the only aspect that matters if we wish to have a comprehensive understanding of the situation of the labour market.

Firstly, unemployment must be broken down into short-term, long-term and very-long-term, as well as by gender, age groups, more vulnerable groups (handicapped, etc.).

67 My bolds.

68 In the EU, the average unemployment rate was recently of around 8%, with minimum of 3.9%

(Denmark) and the maximum of 13.8% (Poland).

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On the other hand, it is acknowledged that it is not sufficient to have a job. The dissemination of precarious jobs, with short-term contracts and low wages, involuntary part-time jobs, etc. calls attention to the fact that, besides unemployment, there are various other aspects of employment that must be taken into account in assessing the right to work and employment.

Not only during a limited period of time, but along a sufficiently long period, in order to assess the effective progress achieved as a result of the employment policies.

All this complexity led the European Committee of Social Rights to revise the methodology for assessing the situation with regard to article 1, paragraph 1.

It should, however, be noted that many of the labour-related rights are effective claim rights, in the sense that they are part of the labour law, can be legally claimed, are endowed with supervising bodies and the denial is subject to appeal.

A similar situation occurs with regard to social security rights, be they within social insurance systems or under social assistance schemes, the latter duly protected by national law.

In what concerns the remaining group of rights, it seems possible to consider the material and the personal scope of each right in two layers.

An inner layer, linked to basic human needs, in which the rights should be considered as individual claim-rights, assessed basically in terms of results and not only of procedures, and an outer layer which should be assessed with less strict criteria and would also take account of procedures and trends.

Such an approach would demand the definition of basic human needs.

Although this is a highly controversial issue, the fact is that no one benefits from bypassing it. If economic and social rights are not primarily concerned with basic human needs, one may ask what other purpose can give them any meaning.

This is, inter alia, the case of article 14 of the Charter ─ the right to social welfare services ─, which has a universal personal scope, as well as of article 30 ─ the right to protection against poverty and social exclusion ─, or of article 31 ─ the right to housing.

In these two cases, the case law of the European Committee of Social Rights has to make progress, although its present stage has proved sufficiently developed to allow assessments leading to very substantial conclusions.

By claim rights I mean rights that are guaranteed by national law and practice, that ensure the possibility of appeal to an independent body (desirably, a court) in case of refusal or reduction, and the access to free judicial support.

The citizen must know the eligibility criteria, the content of the right, under what conditions he or she may loose the right, etc. These aspects cannot be dependent upon the discretionary power of the administrative or political authority.

Let me now turn to the role of the supervisory body.

As regards the European Social Charter, the supervisory mechanism has two complementary systems: i) regular national reports; and ii) system of collective complaints.

The Parliamentary Assembly of the Council of Europe raised the issue of individual complaints, but it seems doubtful that they be introduced in the near future.

Personally, I have not given enough thought to the system of individual complaints, and therefore will not develop on it here.

I should, however, add that the collective complaints can be a powerful instrument for development of economic, social and cultural rights.

However, this instrument is not yet sufficiently disseminated as a current practice in most of the countries.

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Firstly, not all the member-States have ratified the system of collective complaints. Secondly, during the last 10 years, that is, since the system came into force, in 1998, 47 complaints were lodged. However, the number of countries involved is of 11 (the Council of Europe has 47 member-States).

One third of the complaints (32%) refers to France, and 19% to Portugal. Globally, 74% of the complaints comprise only four countries.

There are no grounds to infer that there is any relation between the contracting parties involved in the complaints and the respective situations regarding human rights. The reasons for this concentration on a few countries seem to result much more from information and experience.

As a general statement, I would say that, in a globalised world as is the world in which we live today, there is a substantial lack of international bodies for global governance.

I will not discuss this issue here. Suffice it to note that it seems extremely difficult, if not impossible, to implement article 1, paragraph 2, of the International Covenant on Economic, Social and Cultural Rights, which says namely that

“In no case may a people be deprived of its own means of subsistence”,

without a body of global governance.”

I am not an expert in matters related with this Covenant, but the feeling that I have about its supervisory mechanism is that it involves so many UN institutions that I would not expect it to be effective.

The importance of this aspect will grow with the entry into force of the Additional Protocol recently approved.

On the other hand, as highlighted above, in the European context, economic, social and cultural rights engage three different organisations ─ the UN, the Council of Europe and the EU ─, and, therefore, some arrangement has to be sought, so that the monitoring in this field may be effective and efficient.

Finally, a few words on sanctions. The notion of sanctions depends, first and foremost, on the notion of rights.

To what extent are they binding?

There are governments who would wish that the assessment of the national situation concerning economic, social and cultural rights should have the nature of a mere indication. Such governments, with an immature concept of rights, will not accept any reference to sanctions.

This calls attention to the need of working out the concept of human rights and their relation with accepted values, such as human dignity and freedom, two concepts that appear in the very first article of the Universal Declaration of Human Rights (1948):

“All human beings are born free and equal in dignity and rights”

This is an extremely heavy statement, with extremely heavy implications in the field of human rights. These implications have to be worked out and be part of the universal culture. Such a culture, loaded with accepted values, must be developed and disseminated, because it underlies the conditions of success of any effort aiming at the protection of human rights.

This cultural dimension of human rights is being undertaken by UNESCO, namely in relation to poverty. It seems that such an endeavour should mobilise all the organisations engaged in the protection of economic, social and cultural rights.

The acknowledgement of those rights cannot be taken for granted. May I emphasise this point: the underdevelopment of the protection of human rights stems, to a large extent, from a generalised cultural background that is insensitive to this major human and social problem.

Within the scope of the European Social Charter, sanctions are exclusively political. A declaration of non-compliance by the European Committee of Social Rights is, by itself a sanction.

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The status of such a sanction grows when the Committee of Ministers of the Council of Europe adopts the conclusion of the Committee of Social Rights and makes a recommendation.

My personal experience in this field seems to suggest that the governments are not indifferent to political sanctions, since they seem to affect the image of the respective countries.

At the present stage, it does not seem feasible to introduce stronger penalties that would induce contracting parties to enhance their commitment towards the protection of human rights. The classification and understanding of each of the rights, the supervisory mechanisms, and the system of sanctions, within a cultural context that is sensitive to human rights and to the implications of globalisation, seem to be the main factors of the effectiveness of the international treaties that protect economic, social and cultural rights.

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7. OPERATIONALIZATION AND VINDICATION OF ESCR Chapter Introduction

The separation of human rights into two distinct sets is a dépassé paradigm of legal thinking produced on the subject of Economic, Social and Cultural Rights. International law is not a static, compartmentalized legal system and cannot cope with artificial separations. The interconnection and interrelation of human rights in real life context poses legal challenges. The provision of remedy must therefore be the effective response in case of violation. This chapter accounts for three dimensions of ESCR justiciability while providing examples of operacionalization at International, Regional and National level.

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Interdependence, Indivisibility and Interconnection Between ESCR and CPR. UN case-law

Martin Scheinin, Professor Abo Akademi University, Finland

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Comparative Experiences of Justiciability of ESC Rights

Christian Courtis, International Commission of Jurists

1. Introduction Social rights, or economic, social and cultural rights (ESC rights), are not a new idea. There has been a statutory recognition of ESC rights since the last third of the 19th century. ESC rights entered the language of constitutional law in the period between wars – the 1917 Mexican, the 1919 German and the 1931 Spanish constitutions being early examples –, and have become part of the constitution in most of the world since the end of the Second World War. ESC rights have also been part of international human rights since the adoption of the Universal Declaration of Human Rights in 1948 –and perhaps even before, since the adoption of the ILO constitution and the Charter of the League of Nations. Yet, compared to civil and political rights, there has been considerably less attention placed on the need to produce a conceptual framework to develop the content of ESC rights and the protection mechanisms needed to enforce them. One of the traditionally neglected issues with regard to ESC rights is the question of their justiciability – that is, the possibility for people who claim to be victims of violations of these rights to file a complaint before an impartial body and request adequate remedies or redress if a violation has occurred or is likely to occur. This article examines some developments in the field of the justiciability of ESC rights. A number of objections have been directed against the justiciability of ESC rights. I will focus here on the developments which enable courts to overcome the alleged vagueness of ESC rights as an obstacle for adjudication.69 According to this objection, ESC rights recognized in constitutions or human rights instruments are phrased in such a vague or indeterminate way that – allegedly – they do not offer intelligible standards about what they require, and thus – the argument follows – they cannot constitute the basis for a judgment about whether a legal duty has been complied with or not. Sometimes this objection is expressed by saying that ESC rights are merely “aspirational” or “programmatic” – that is, that they should be understood as guidelines for legislative or administrative action, but not as rules or principles to be adjudicated upon by judges. While some of the developments I will comment on were originally elaborated by scholars and academics, they are reflected in soft law instruments,70 and – more importantly – they have been endorsed by domestic, regional and international courts and adjudicative bodies across the world.

69 There are, of course, other objections. Among them, the alleged incompatibility of the adjudication of ESC rights with the principle of division of powers in a democratic regime, and the existence of procedural and institutional constraints that allegedly render adjudication on this issues either useless or undesirable. For a further discussion, see International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights, Human Rights and Rule of Law Series No. 2, ICJ, Geneva, 2008 –on which this article is partially based. 70 See, for example, Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles), and Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht Guidelines). The Limburg Principles were adopted in an expert conference held in Maastricht (the Netherlands), convened by the International Commission of Jurists, the Faculty of Law of the University of Limburg (Maastricht, the Netherlands) and the Urban Morgan Institute for Human Rights, University of Cincinnati (Ohio, United States of America), from 2 to 6 June 1986, and reproduced in UN doc. E/CN.4/1987/17. The Maastricht Guidelines were adopted in an expert conference held in Maastricht, from 22-26 January 1997, at the invitation of the International Commission of Jurists (Geneva, Switzerland), the Urban Morgan Institute on Human Rights (Cincinnati, Ohio, USA) and the Centre for Human Rights of the Faculty of Law of Maastricht University (the Netherlands).

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Finally, the arguments made here should not be interpreted as a call to reduce ESC rights to their justiciability, or to limit the mechanisms for monitoring the compliance with ESC rights only to litigation. It is just a call to include litigation as a mechanism, in conjunction with other mechanisms –for instance, political mobilization, monitoring by specialized or independent agencies, or national human rights institutions, parliamentary inquiries, or the international review of State reports. 2. Some preliminary comments A number of preliminary clarifications may be useful before addressing the main issue to be discussed here. First, the overall assumption that ESC rights are not justiciable as a whole category because of some inherent impossibility of defining their content seems to ignore the evidence of almost a century of functioning of labour courts, and of massive case law in such fields as social security, health or education before courts of all regions in the world. This evidence may entail a qualification: the uncertainty or vagueness of ESC rights is predicated not of rights defined by legislative statutes or administrative regulations, but of ESC rights contained in constitutions or human rights treaties. According to this qualification, while statutes or regulations may offer a more solid basis for adjudication, constitutional or human rights treaty provisions are less concrete and certain. But, of course, the same can be said about constitutional or human rights treaty provisions enshrining civil and political rights – and no one has ever denied their justiciability on this basis. In fact, the language of human rights provisions enshrining civil and political rights is often similar – and sometimes, even the same – to the language of human rights provisions enshrining ESC rights. Secondly, blanket arguments against the justiciability of ESC rights seem to assume that the content of these rights corresponds to a single formal pattern, with a unique trait that would identify all such rights as members of a same set. However, a review of any accepted list of ESC rights – for example, the list of rights provided by the ICESCR, or of regional instruments such as the Revised European Social Charter or the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (the Protocol of San Salvador) – would indeed show the opposite: there is no single formal pattern, but a wide variety of provisions that establish ESC rights, some stated as freedoms, some as obligations on the State regarding third parties, some as obligations on the State to adopt measures or to achieve some result. Moreover, exactly the same could be said about civil and political rights: taking as an example instruments such as the International Covenant on Civil and Political Rights, the European Convention on Human Rights and Fundamental Freedoms, or the American Convention on Human Rights, one finds a wide variety of provisions, stating freedoms for individuals, prohibitions on State action, obligations regarding third parties, duties to adopt legislative and other kinds of measures, duties to protect special subjects – such as families and children – or duties to provide access to services or institutions. General classifications – such as “civil and political” and “ESC” rights – are too broad to capture the nuances and different features of every single right. Rights placed under the same category may share some “familiar resemblance”, but can otherwise be very different. There is no common trait or feature capable of defining either civil and political rights, or ESC rights, as if they were perfectly consistent sets of rights. The effort to reduce civil and political rights to “negative rights” – that is, rights that require abstention from the State – and ESC rights to “positive rights” – that is, rights that require action from the State – is clearly mistaken. Every right – regardless of being classified as a civil, political, economic, social or cultural right – requires both abstention and positive action by the State, and there is hardly any right which does not require resources to be implemented and protected. Indeed, some rights are difficult to classify in this or that category. For example, the drafters of the International Covenants on Civil and Political and on ESC Rights included some rights in both instruments – it is the case of freedom to form and join trade unions, and of the right of families and children to State protection. Some other rights, while included in civil and political rights

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instruments, are in fact transversal, and apply both to civil and political and to ESC rights – it is the case, for instance, of the rights to a fair trial, to the respect of the due process, and of the principle of equality and the prohibition of discrimination. One of the possible meanings of the notions of interdependence and indivisibility of all human rights is the fact that duties stemming from different rights may overlap – so the same duty can be identified with different rights. A typical example of this is the idea that the right to life involves positive obligations, including access to a basic level of medical services – a duty that can also be identified with the right to health. Finally, some rights resist a strict compartmentalization – for example, the right to education has been considered to be a civil, political, economic, social and cultural right.71 These preliminary ideas suggest that overall assumptions about the justiciability of civil and political rights and against the justiciability of ESC rights should be taken with caution – the span of human rights may be well considered as a continuum, rather than two watertight categories. As we will see, the experience of different courts in the world actually offers good evidence of the need to a more practical and less dogmatic approach. 3. Some developments regarding the justiciability of ESC rights In this section, I will review examples of how different courts and adjudicative bodies – domestic, regional and international – have applied innovative conceptual approaches, overcoming the anachronistic assumption that ESC rights are not justiciable. The examples are not meant to be exhaustive, but just illustrative – both of innovative conceptual approaches and of case law applying them. The conceptual approaches employed by courts can be presented in different ways. I will use the distinction between duties of immediate effect and duties linked with the progressive realization of ESC rights as a starting point – but this does not exclude other ways of addressing the issue. 3.1 Duties of immediate effect and duties linked with the progressive realization of ESC rights Part of the objections against the justiciability of ESC rights draw on their alleged “different nature” in comparison to civil and political rights, which are taken as a model of justiciable rights. Remarks about their “aspirational” or “programmatic” nature are allegedly confirmed by the reference to the notion of “progressive realization”, included in article 2.1 of the International Covenant on ESC rights. According to this notion, the full realization of ESC rights is dependent on budgetary allocations, adoption of legislation and regulations, and proper implementation – and thus requires time, and cannot be achieved immediately. However, academic literature, the doctrine of the Committee on ESC Rights and case law from different courts have stressed that while on the one hand some aspects of ESC rights are subjected to progressive realization, on the other hand, there are a number of duties which are immediately required to the State. Courts have made a fruitful use of this distinction, finding in many cases that the recognition of an ESC right in a constitution or, when applicable, in a human rights instrument, entails some immediate duties where “progressive realization” or similar notions play no role whatsoever. 3.1 Duties of immediate effect

71 See UN Commission on Human Rights, Annual report of the Special Rapporteur on the right to education, Katarina Tomaševski, submitted in accordance with Commission on Human Rights resolution 2000/9, E/CN.4/2001/52, 11 January 2001, para. 6: “The right to education straddles the division of human rights into civil and political, on the one hand, and economic, social and cultural, on the other hand. It embodies them all.”

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3.2.1 Negative protection Courts have taken account of the existence of duties of immediate effect, for example, when granting right-holders protection against state action that violates ESC rights. In these cases, where State action violates duties to respect rights, courts are required to provide negative protection – that is, to order the State to refrain from engaging in action that violates the right, to stop that action, of to offer compensation if the breach has already taken place. Judicial protection against forced evictions is a good example: the right to adequate housing comprises not only positive duties regarding making housing accessible to people in need – which could require progressive implementation. The State has also an immediate negative duty to refrain from forcefully evicting persons from their housing without legal justification and, even if there is a legal justification, without due compliance with procedural guarantees. The Supreme Courts of India and of Bangladesh have issued important decisions in this regard, underscoring the importance of the State’s procedural duties which must be complied with as a requisite for a lawful eviction.72 For instance, the Supreme Court of Bangladesh ruled, in ASK v. Bangladesh,73 that before carrying out a massive eviction from an informal settlement, the government should develop a plan for resettlement, allow evictions to occur gradually and take into consideration the ability of those being evicted to find alternative accommodation. The Court also held that the authorities must give fair notice before eviction. A decision of the Constitutional Court of South Africa also illustrates this point. In Port Elizabeth Municipality v. Various Occupiers74 the Court declined to grant an eviction order to evict 68 people squatting privately owned land. The Court considered the request for eviction petition under three criteria – circumstances under which the unlawful occupier occupied the land and erected the structures; the period the occupier has resided on the land, and the availability of suitable alternative land – and concluded that, according to the circumstances of the case, the Municipality had not shown that it made any significant attempt to listen and consider the problems of the occupiers. The African Commission on Human and Peoples’ Rights expressly endorsed this approach in the Social and Economic Rights Action/Center for Economic and Social Rights v. Nigeria case75. The Commission stated:

“The obligation to respect entails that the State should refrain from interfering in the enjoyment of all fundamental rights; it should respect right-holders, their freedoms, autonomy, resources, and liberty of their action. With respect to socio economic rights, this means that the State is obliged to respect the free use of resources owned or at the disposal of the individual alone or in any form of association with others, including the household or the family, for the purpose of rights-related needs. And with regard to a collective group, the resources belonging to it should be respected, as it has to use the same resources to satisfy its needs.”76

The Commission found that the Government of Nigeria breached its duties to respect the rights to health and to a healthy environment, by directly “attacking, burning and destroying several Ogoni villages and homes”.77 The Commission also considered violations to the right to housing:

72 See Supreme Court of India, Olga Tellis & Ors v Bombay Municipal Council [1985] 2 Supp SCR 51, July 10, 1985; Supreme Court of Bangladesh, Ain o Salish Kendra (ASK) v Government and Bangladesh & Ors 19 BLD (1999) 488, July 29, 2001. 73 See Supreme Court of Banglasedh, Ain o Salish Kendra (ASK) v Government and Bangladesh & Ors 19 BLD (1999) 488, July 29, 2001. 74 See Constitutional Court of South Africa, Port Elizabeth Municipality v. Various Occupiers, case CCT 53/03, 4 March 2004. 75 See African Commission on Human and Peoples’ Rights, SERAC and CESR v. Nigeria, Communication No. 155/96, October 13-27, 2001. 76 Ibid, para. 45 (footnote omitted). 77 Ibid, para. 54.

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“At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The State’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to them in a way they find most appropriate to satisfy individual, family, household or community housing needs. … The government has destroyed Ogoni houses and villages and then, through its security forces, obstructed, harassed, beaten and, in some cases, shot and killed innocent citizens who have attempted to return to rebuild their ruined homes. These actions constitute massive violations of the right to shelter, in violation of Articles 14, 16, and 18(1) of the African Charter.”78

Similarly, the Commission found that the State had also breached its duties to respect the right to food.79 In a case regarding the prohibition of forced labour,80 the European Committee of Social Rights reviewed the Government of Greece’s legislation and practice regarding the civil service to be performed by conscientious objectors. The Committee found that as the civil service requirements involved an excessive duration of service, compared to the duration of military service, this amounted to a disproportionate restriction on the right of the worker to earn his living in whichever occupation he freely chose to enter. The German Federal Constitutional Court provides further examples: it has held in several cases that the state tax power cannot extend to the material means necessary to cover the “existential minimum”.81 Thus, the legislature has a duty to respect the means for basic livelihood, and cannot impose taxes beyond these limits. 3.2.2 Procedural protection While ESC rights are often identified with substantive aspects, there are some undeniable procedural dimensions to them, which also constitute a solid basis for judicial adjudication. The idea of due process was originally devised for the protection of traditional civil rights, such as the right to property. Yet, there is no conceptual impediment to extending procedural protections to ESC rights. Procedural guarantees can take multiple forms. They could be set as a prerequisite to the adoption of certain general measures and policies by the state (such is the case of the right to a public hearing, or the right to be consulted before such adoption of measures or policies is taken). They could also establish the steps the state is obliged to undertake before granting, denying or depriving particular individuals or groups from an entitlement. Procedural guarantees could also be aimed at establishing the basis for the administrative or judicial review of decisions adopted by administrative or and other political authorities. Principles regarding access to courts and fair trial and administrative procedures are particularly relevant in the area of ESC rights, where the actual recognition of individual entitlements depends to a great extent on the action of the administration. These principles can include equality of arms, equal opportunities to present and produce evidence, the opportunity to challenge evidence brought by the opponent, proceedings of reasonable length, fair review of administrative decisions, access to legal counsel, access to the file and relevant information, and impartiality and

78 Ibid, paras. 61-62. 79 Ibid, para. 66. 80 See European Committee of Social Rights, Quaker Council for European Affairs (QCEA) v. Greece, Complaint No. 8/2000, April 27, 2001. 81 See, for example, German Federal Constitutional Court, BVerfGE 82, 60(85), BVerfGE 87, 153(169).

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independence of the adjudicative body, among many others. From a substantive viewpoint, the fact that ESC rights are frequently linked with access to the most basic human needs, such as food, shelter, health care or ensuring a subsistence level income, particularly highlights the need for timely and fair procedures. Both the European and the Inter-American Courts of Human Rights have employed procedural guarantees in relation to ESC rights. The European Court of Human Rights has an extensive jurisprudence regarding the application of article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (the right to a fair trial) to social security and social assistance payments, and to labour rights.82 In this regard, the Court has considered the principle of equality of arms, access to courts in order to review decisions by administrative bodies, the due compliance of judicial decisions, and the length of the proceedings, among other aspects.83 In turn, the Inter-American Court of Human Rights has applied article 8 (concerning the right to a fair trial) and article 25 (on the right to judicial protection) of the American Convention on Human Rights in matters regarding labour rights, social security rights, recognition of legal personality of indigenous groups, and access to communal lands by indigenous groups.84 The Court has considered aspects such as the length of procedures, the possibility of judicial review of administrative decisions, and compliance with judicial decisions by the Government. But the extent of procedural guarantees in the field of ESC rights is even broader. The extent to which the state, or private parties, comply with procedural burdens before adopting decisions that may impair ESC rights has also been a regular subject of judicial review. A number of examples can illustrate this idea. Respect for procedural guarantees is a key element of the protection against forced evictions;85 the termination of social benefits;86 and the adoption of measures that could

82 See, for example, European Court of Human Rights, Feldbrugge v. the Netherlands, May 29, 1986 (concerning the right to compensation for a work related accident); Schuler-Zgraggen v. Switzerland, June 24, 1993 (right to an invalid pension); Schouten and Meldrum v. the Netherlands, December 9, 1994 (social security contributions); Mennitto v. Italy, October 5, 2000 (family disability allowances). 83 See, for example, cases of the European Court of Human Rights brought on the basis of violations of article 6(1) of the European Convention on Human Rights and Fundamental Freedoms, Feldbrugge v. the Netherlands, May 29, 1986 (lack of a fair hearing to challenge administrative decision); Deumeland v. Germany, May 29, 1986 (length of the proceedings exceeded reasonable time); Vocaturo v. Italy, May 24, 1991 (length of proceedings for determination of labour rights exceeds reasonable time); X v. France, March 31, 1992 (length of proceedings for determination of a health related tort claim exceeds reasonable time); Pramov v. Bulgaria, September 30, 2004 (lack of access to court to establish lawfulness of dismissal from work). The Court found, in another set of cases, violations to article 6(1) for failure of the Government to comply with social security and labour-related payments determined by judicial decisions. See, for example, Burdov v. Russia, May 7, 2002; Makarova and others v. Russia, February 24, 2005; Plotnikovy and Poznakhirina v. Russia, February 24, 2005; Sharenok v. Ukraine, February 22, 2005. 84 See, for example, Inter-American Court of Human Rights, Baena Ricardo et. Al. (270 workers v. Panama), February 2, 2001, paras 122-143 (violation of articles 8 and 25 for lack of due process and effective remedy in the administrative and judicial stages regarding arbitrary dismissal of 270 workers); Mayagna (Sumo) Community Awas Tingni v. Nicaragua, August 31, 2001, paras 115-139 (violation of article 25 for lack of adequate procedures for demarcation and titling indigenous community’s land); “5 pensioners” v. Peru, February 28, 2003, paras 127-141 (violation of article 25 for lack of compliance with judicially ordered pension payments), Yakye Axa Indigenous Community v. Paraguay, June 17, 2005, paras 63-119 (violations of articles 8 and 25 for lack of adequate procedures for recognizing the legal personality of an indigenous community and for demarcating and titling community’s land); Acevedo Jaramillo and others v. Peru, February 7, 2006, paras 215-278 (violations of articles 8 and 25 for lack of compliance with judicial decisions protecting arbitrarily dismissed of workers). 85 See the aforementioned Supreme Court of India, Olga Tellis & Ors v Bombay Municipal Council [1985] 2 Supp SCR 51, July 10, 1985; Supreme Court of Bangladesh, Ain o Salish Kendra (ASK) v Government and Bangladesh & Ors 19 BLD (1999) 488, July 29, 2001. 86 See, for example, US Supreme Court, Goldberg v. Kelly, March 23, 1970, 397 U.S. 254 (where the Court found that due process, including the right to a hearing and the right to defense, should be respected before termination of social benefits).

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affect indigenous communities,87 users and consumers of public utilities,88 medical patients,89 the environment90 and other stakeholders.91 Compliance with procedural prerequisites such as the requirement for rights to be regulated by parliamentary statute,92 and the requirements for fair notice, access to information, public hearings, group consultation or individual informed consent prior to decision-making, are important elements which may affect ESC rights. 3.2.3 Equal protection and the prohibition of discrimination While not necessarily overlapping with the full range of duties which stem from them, an important number of issues regarding the justiciability of ESC rights involve questions regarding either discrimination claims, or challenges based on illegitimate or unreasonable distinctions made by the law, or produced by law, linked with access to those rights, or to the services which provide those rights. It is not by chance that empirical data shows that poverty particularly affects some social groups, such as women, members of ethnic minorities, rural populations and persons with disabilities, among others. The Committee on ESC Rights has made clear that, within the International Covenant on ESC Rights, the prohibition of discrimination is an obligation of immediate effect.93 Other international human rights instruments also stress this feature: namely, article 26 of the International Covenant on Civil and Political Rights, which makes the equal protection principle applicable to any piece of legislation passed by the state, regardless of its substantive content, and thus, encompassing legislation meant to regulate ESC rights. Several clauses enshrined both in the Convention on the Elimination of All Forms of Racial Discrimination, and the Convention for the Elimination of All Forms of Discrimination against Women, make explicit reference to its application to norms and practices regarding ESC rights, social policies and social services. The same could be said about the protection granted by non-discriminatory and equal protection principles grounded in constitutions in every region of the world. Traditional anti-discriminatory litigation, based on challenges to normative distinctions grounded on suspect categories, or on showing that legislation or administrative practices have a

87 See, for example, Colombian Constitutional Court, decisions SU-39/1997, February 3, 1997, in which the Court struck down the Government’s decision to allow an oil company to start exploration on indigenous people’s land. The Court found the Government had failed to conduct proper consultation with the indigenous community in terms of ILO Convention 169. See also decision T-652/1998, November 10, 1998, which declared an environmental license to build a dam to be illegal as the Government had failed to conduct consultation with the local indigenous community in compliance with ILO Convention 169. 88 See, for example, Argentine Federal Administrative Court of Appeals, Buenos Aires District, Chamber IV (Cámara Federal en lo Contenciosoadministrativo de la Capital Federal, Sala IV), Defensora del Pueblo de la Ciudad de Buenos Aires y otro c. Instituto Nacional de Servicios Sociales para Jubilados y Pensionados, February 10, 1999. In this case the Court of Appeals suspended a bid the privatize the social security agency and found there had been a failure to provide adequate information to users. 89 See, for example, UN Committee on the Elimination of Discrimination against Women, Andrea Szijjarto v. Hungary, Communication No. 4/2004, 14 August 2006 (sterilization without properly obtained informed consent violates, inter alia, the right to health of women). 90 See, for example, Australia, Environmental Court of New South Wales, Leatch v. Director-General of National Parks & Wildlife Service and Shoalhave City Council, November 23, 1993, NSWLEC 191. The Court in this case applied the precautionary principle to revoke a licence to take or kill endangered fauna. 91 See, for example, Supreme Court of Pakistan, Shehla Zia and others v. WAPDA, February 12, 1994, PLD 1994 Supreme Court 693. This case applied the ‘precautionary principle’ to suspend construction of a power plant in a residential area, until health risks were assessed by experts and consultation was carried out. See also, Supreme Court of Venezuela, Political-Administrative Chamber, Iván José Sánchez Blanco y otros c. Universidad Experimental Simón Bolívar, June 10, 1999 (striking down the introduction of a university fee for failure to comply with formal requirements). 92 See, for example, Constitutional Court of the Czech Republic, Pl. US 33/95 (1996) in which it was held that the regulation of the right to health as a fundamental right required a formal statute by the Parliament. 93 See also Limburg Principles, Principles 13, 22 and 35-41; Maastricht Guidelines, Guidelines 11, 12 and 14(a).

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disproportionate impact on a particular social group, can be perfectly suited – and has been extensively employed – to the field of ESC rights, social policies and social services. Litigation based on the challenge of unreasonable normative distinctions, i.e. over-inclusive restrictions, or under-inclusive eligibility criteria in order to be granted entitlements, follows a similar pattern, even if legislative or administrative authorities may be subject to less strict forms of scrutiny than in the case of employment of suspect categories such as gender or race. The potential development of other social conditions as suspect categories – including, among others, socio-economic status – or as an unreasonable factor for normative distinctions, could also expand the protection offered by the prohibition of discrimination and the principle of equal protection of the law to the enjoyment of ESC rights.

Probably the most famous case in US constitutional law, Brown v. Board of Education of Topeka,94 is actually a case regarding the application of the equal protection clause to the right to education. In that case, the US Supreme Court decided that the existence of schools segregated according to racial criteria amounted to a breach of the equal protection clause, and ordered that the school system be redesigned in accordance with the ruling. The UN Committee on Racial Discrimination (CERD) also considered situations of violations of ESC rights through discrimination on the basis of racial origin. In the case of Ms. L. R. et al v. Slovakia,95 CERD dealt with a municipal decision revoking a housing policy directed towards to fulfilling the needs of the Roma population, finding that such revocation amounted to a discriminatory impairment of the right to housing based on grounds of ethnic origin. The Human Rights Committee (HRC) has also decided cases where the right to equal protection under the law and the prohibition of discrimination were applied to ESC rights. In the Zwaan de Vries case96, for instance, the HRC decided that the Dutch social security legislation providing unemployment benefits discriminated against married women, requiring them to satisfy additional eligibility conditions that did not apply in the case of married men. Differential treatment on the basis of gender was found to be in breach of article 26 of the ICCPR. Similar cases were decided by the European Court of Human Rights, considering social benefits to be protected by the right to property enshrined in Protocol 1 to the European Convention.97 Similarly, the South African Constitutional Court considered a constitutional challenge to the Social Security Act, which restricted access to social assistance benefits to South African citizens.98 The plaintiffs, a group of indigent Mozambican nationals with permanent resident status in South Africa, alleged that the Social Security Act discriminated against them on the basis of their national origin. The Constitutional Court rejected the Government’s arguments that the exclusion of non-citizen permanent residents was justified because to include them in the social assistance system

94 See US Supreme Court of Justice, Brown v. Board of Education of Topeka, 347 US 483 (1954). The Supreme Court considered together four cases of racial segregation in schools, involving the states of Kansas (Brown v. Board of Education of Topeka), South Carolina (Briggs et al. v. Elliott et al.), Delaware (Gebhart et al. v. Belton et al.) and Virginia (Davis et al. v. County School Board of Prince Edward County, Virginia, et al.). Remedies were ordered in a follow-up case decided a year later, Brown v. Board of Education II, 349 US 294 (1955). For a historical account, see M. V. Tushnet, Making Civil Rights Law: Thurgood Marshall and the Supreme Court 1936-1961, (Oxford University Press: New York, 1994), chapter 11; R. Kluger, Simple Justice: The History Of Brown v. Board Of Education And Black America's Struggle For Equality (Knopf: New York, 1975). 95 See UN Committee on the Elimination of Racial Discrimination, Ms. L. R. et al v. Slovakia, Communication No. 31/2003, March 10, 2005. 96 See UN Human Rights Committee, Zwaan de Vries v. the Netherlands, Communication 182/1984, April 9, 1987. See also Broeks v. the Netherlands, Communication 172/1984, April 9, 1987. 97 See European Court of Human Rights, Wessels-Bergervoet v. the Netherlands, June 4, 2002 (gender based discrimination regarding the period of coverage of welfare benefits: paras. 46-55); Willis v. the United Kingdom, June 11, 2002 (gender-based discrimination regarding widows’ payment and widower mother’s allowance: paras. 39-43). 98 See Constitutional Court of South Africa, Khosa and others v Minister of Social Development and others, 2004 (6) SA 505 (CC), March 4, 2004.

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would attract a flood of immigrants to South Africa who would come to the country with the sole purpose of gaining access to social assistance benefits and that including them would place an unsustainable additional financial burden on the social assistance budget. It found that the exclusion of permanent residents both discriminated against them unfairly in breach of section 9(3) of the Constitution and breached their section 27(1) right to have access to social assistance. As a consequence, it declared the offending provisions of the Social Assistance Act unconstitutional and proceeded extend the application of the provisions so that permanent residents would also be eligible for access. The European Court of Human Rights has also scrutinised the application of the principle of non-discrimination on the basis of national origin in relation to social security and social assistance benefits, interpreting them to be protected by the right to property enshrined in Protocol 1 to the European Convention. In the Gaygusuz case,99 the Court considered that the difference in treatment between nationals and non-nationals regarding eligibility for a contributory emergency assistance scheme was not based on any objective and reasonable justification, and thus was discriminatory. In the Koua Poirrez case,100 the Court considered an alleged discriminatory violation of the right to property, based again on national origin. The Court considered that the law refusing a non-contributory allowance for adults with a disability on the basis of national original was unjustifiable and amounted to discriminatory treatment. The United Kingdom (UK) House of Lords provides an example of upholding the prohibition on non-discrimination on the basis of sexual orientation, in the area of housing protection. It held that differential treatment of same-sex partners as compared to different-sex partners with respect to protection of security of tenure amounted to illegitimate discrimination and a violation of article 14 (the prohibition of discrimination) of the European Convention on Human Rights and Fundamental Freedoms in relation to article 8 (the right to respect of family and private life) of the European Convention, applicable under the Human Rights Act.101 Some courts have dealt with equality violations of ESC rights based on less traditional grounds. In many cases, various factors combine to produce discriminatory circumstances, or apparently neutral grounds for legal distinctions indirectly affect a certain social group in a disproportionate manner. For instance, the Supreme Court of Israel has heard a number of cases regarding the unequal allocation of health, housing and social services. In these cases, three factors coincided to contribute to the unequal distribution and delivery of services: these factors were geographical, ethnic and socio-economic. Geographical inequality in the distribution of services in Israel follows ethnic lines, negatively affecting Arab communities, which are in turn poorer, impinging on the quality of ESC rights enjoyed by these communities, particularly in relation to those enjoyed by the relatively richer Jewish communities. Some of the cases that were filed addressing these issues were solved through settlements,102 while in other cases the Supreme Court ruled that the State should adopt measures to address the inequalities,103 or it validated the measures shown to be adopted by the Government in order to modify the situation.104

99 See European Court of Human Rights, Gaygusuz v. Austria, September, 16, 1996, paras. 46-52. 100 See European Court of Human Rights, Koua Poirrez v. France, September 30, 2003, paras. 46-50. 101 See U.K. House of Lords, Ghaidan v. Godin-Mendoza [2004] UKHL 30. 102 See, for example, Supreme Court of Israel, H.C. 7115/97, Adalah, et. al. v. Ministry of Health, et. al. This case settled, with the Government agreeing to provide maternal and health care centers for unrecognized Bedouin villages in the Negev. 103 See Supreme Court of Israel, HCJ 727/00, Committee of the Heads of Arab Municipalities in Israel v. Minister of Construction and Housing, 56(2) P.D.79. The Court required the Government to expand a municipal renovation program to more Arab municipalities. 104 See Supreme Court of Israel, HCJ 2814/94, Supreme Monitoring Committee for Arab Education in Israel v. Minister of Education, Culture and Sport, 54(3) P.D. 233. In this case the Court noted the Government's undertaking to expand an education-support program for weak schools to more Arab schools.

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In the Klickovic, Pasalic and Karanovic case,105 the Human Rights Chamber for Bosnia and Herzegovina decided that the disparity in pension payments given to pensioners returning to Bosnia and Herzegovina, versus those pensioners who remained in Bosnia and Herzegovina during the armed conflict, amounted to discrimination regarding the right to social security on the basis of the applicants’ status as internally displaced persons. Besides providing for the prohibition of active discriminatory practices, either by state agents or private parties, anti-discriminatory action may (or, if a stronger position is taken on this issue, should) also encompass active measures providing protection for disadvantaged, vulnerable or minority groups. Children, for example, are a group that has deserved particular attention as the target of special protection measures. There is also a growing consensus that persons with disabilities require pro-active measures to make environments accessible and in order to allow full social inclusion. Respect for the cultural traditions of indigenous people is a further example of the need to consider relevant differences for some social groups. A case decided by the Canadian Supreme Court can illustrate this point. In the Eldridge case,106 the Court decided that health care services delivered in a formally equal fashion to persons without any disability and persons with disabilities did not ensure persons with disabilities enjoyed the equal benefit of the law (as required by Section 15(1) of the Canadian Charter of Rights and Freedoms). In this case, the Court considered that failure to provide sign language interpreters for deaf persons in medical services amounted to providing plaintiffs with a worse quality of service, and ordered the Government to undertake special measures in order to ensure that the disadvantaged group can equally benefit from public health services. Courts have also addressed the consideration of cultural rights and differences, as a way to prevent discrimination and preserve the equal dignity and opportunities of cultural minorities. A number of cases decided by the Inter-American Court of Human Rights offer good examples of this approach. In the leading case, Awas Tingni v. Nicaragua,107 and in subsequent cases,108 the Court interpreted the right to property (article 21 of the American Convention on Human Rights), in terms of its enjoyment by indigenous people, as a collective right, according to the indigenous group’s world view and in light of ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries. In the Awas Tingni case, the Court ordered the State to abstain from granting permission for wood exploitation on the ancestral land of the indigenous group, and ordered the State to proceed to demarcate and provide the community with a legal title for the land.109 3.2.4 “Core content” or “minimum core” obligations An important conceptual element concerning the determination of the responsibilities of a State in relation to ESC rights is the notion of core content (also called minimum core content, minimum core obligations,110 minimum threshold or ‘essential content’, as it is known in the German constitutional tradition and the traditions which draw from it). This notion entails the possibility of

105 See Human Rights Chamber for Bosnia and Herzegovina, CH/02/8923, CH/02/8924, CH/02/9364, Doko Klickovic, Anka Pasalic and Dusko Karanovic v. Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska, January 10, 2003. 106 See Supreme Court of Canada, Eldridge v. British Columbia (Attorney General), 151 D.L.R. (4th) 577, 616 (1997). 107 Inter-American Court of Human Rights, Mayagna (Sumo) Community Awas Tingni v. Nicaragua, August 31, 2001. 108 In the same sense, see Yakye Axa Indigenous Community v. Paraguay, June 17, 2005, paras. 123-156, especially paras. 131, 135, 137, 146, 147 and 154; Sawhoyamaxa Indigenous Community v. Paraguay, March 29, 2006, paras. 117-143. 109 See Inter-American Court of Human Rights, Mayagna (Sumo) Community Awas Tingni v. Nicaragua, August 31, 2001, paras. 148-154. 110 See, for example, Maastricht Guidelines, Guideline 9.

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defining absolute minimum levels of a right, without which that right would be unrecognizable or meaningless. This notion has been employed in different contexts, including when analysing civil and political rights, and especially in the constitutional law tradition. When applied to rights that involve access to a service or benefits, this notion assists in defining their minimum mandatory level. Different constitutional constructions have justified this requirement as a corollary of the notion of human dignity, or conceived it as a vital minimum or ‘survival kit’. The German Federal Constitutional Court and Federal Administrative Court provide examples of the ‘minimum core content’ strategy, which is derived from the constitutional principles of the welfare (or social) state and the concept of human dignity. In Germany the Courts decided that these constitutional principles translated into positive State obligations to provide an ‘existential minimum’ or ‘vital minimum’, comprising access to food, housing and social assistance to persons in need.111 Similarly, the Swiss Federal Court found that an implied constitutional right to a ‘minimum level of subsistence’ (‘conditions minimales d’existence’), both for Swiss nationals and foreigners, could be enforced by the Swiss Courts.112 Brazilian courts have followed a similar path when considering that, as part of the express provision in the Brazilian constitution establishing the right to education for children, the State is obliged to ensure access to day-care and kindergarten for children up to six years old. Compliance with this constitutional mandate – according to the Brazilian Federal Supreme Court – cannot be left to administrative discretion.113

Access to basic, essential medical care has also been considered to be a meaningful component of the right to health. The Argentine Supreme Court, upholding a Court of Appeals injunction, considered that, in the light of the human right to health guaranteed by the Constitution and international human rights treaties, statutory regulations granting access to medical services should be read as requiring health care givers to fully provide essential medical services in case of need.114

Interestingly, even if the use of the notion of ESC rights is not common in the United States, there is extensive litigation before State (as opposed to federal) courts on the right to education in that country. Most of this litigation is based on State constitutional provisions which include the right to education, or State duties to provide free primary education. While the predominant strategy during the 1970s and 80s was focused on challenging inequities in the funding of public education among different municipalities of the same State (the so-called equity cases), in the beginning of the 1990s the strategy turned to defining the minimum standards that should be complied by the State in order to fulfill its constitutional obligations regarding public education (the so-called adequacy cases). Thus, even without speaking of “ESC rights” or “core content”, State supreme courts have developed definitions about the minimum content of the right to education, finding in many cases that the State did not meet its duties – among other reasons, for its failure to provide measurable standards to assess compliance, for inadequate funding or facilities, or for poor academic results or clearly disparate academic results between richer and poorer sections of the population.115

111 See, for example, German Federal Constitutional Court (BVerfG) and German Federal Administrative Court (BVerwG), BVerfGE 1,97 (104f); BVerwGE 1,159 (161); BVerwGE 25, 23 (27); BVerfGE 40, 121 (134); BVerfGE 45, 187 (229). 112 See Swiss Federal Court, V. v. Einwohrnergemeine X und Regierungsrat des Kanton Bern, BGE/ATF 121I 367, October 27, 1995. 113 See Brazilian Federal Supreme Court (Supremo Tribunal Federal), RE 436996/SP (opinion written by Judge Celso de Mello), October 26, 2005. 114 See Argentine Supreme Court, Reynoso, Nida Noemí c/ INSSJP s/amparo, May 16, 2006 (majority vote agreeing with the Attorney General’s brief). 115 Since the beggining of the 1990s, litigation in 21 out of 27 States has been favorable to the plaintiffs. See, for example, Kentucky Supreme Court, Rose v. Council for Better Education, 790 S.W.2d 186 (Ky. 1989); Kansas Supreme Court, Montoy v. State, 278 Kan. 769, 102 P.3d 1160 (Kan. 2005); New Jersey Supreme Court, Abbott v. Burke, 693 A.2d 417 (N.J. 1997); New York Supreme Court, Campaign for Fiscal Equity v. State, 719 N.I.Y. 2d 475 (NY Sup Ct 2001); North Carolina Supreme Court, Leandro v. State, 488 S.E.2d 249 (N.C.

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3.3 Duties linked with the progressive realization of the right Even in the case of duties which are linked to the notion of progressive realization, standards have been developed to review whether the State has met its obligations regarding ESC rights. “Progressiveness” refers to the full realization of ESC rights: it gives State some leeway in order to choose the means to achieve the full realization, but it does not mean absolute discretion and – even less – indifference regarding the outcomes. Examples of the standards used by courts are discussed in the next subsections. 3.3.1 “Reasonableness”, “appropriateness”, “proportionality” and similar standards Constitutional and human rights norms typically impose duties and limitations on the political branches, including the legislature. Thus, even though the political branches of government have a margin of discretion or appreciation regarding the steps they undertake to ensure the enjoyment of rights,116 some legislative activity – or inactivity – could be inconsistent with the obligations and prohibitions that stem from constitutional and human rights norms. In different legal systems and traditions, judges perform the task of assessing the way in which both the legislative power, and the regulatory power granted to the administration or the executive branch, are exercised. While it is accepted that most constitutional and human rights norms are not absolute and are subjected to limitation, balancing or regulation tests, judges have developed tests to scrutinise the exercise of legislative or regulatory powers.117 Some of the typical tests or standards that have been developed and which are applied include those that ask whether the powers have been exercised in a way that is ‘reasonable’, ‘adequate’ or ‘proportionate’. The use of these tests is a common feature of constitutional review by courts, irrespective of the differences amongst diverse legal traditions. Similar formulae are employed by international human rights courts and bodies to assess the compatibility of legislative measures undertaken by the State with the rights enshrined by human rights instruments. When applying these standards, judicial review of legislative or regulatory powers typically involves a legal analysis of the goals the state purports to be aiming to achieve when justifying a certain measure, and a comparison between those goals and the means chosen to fulfill them. When analysing the goals promoted by the state, courts usually assess whether the constitution (or a human rights instrument) permits, requires or prohibits the goal chosen by the government; and whether other goals required to be furthered by the constitution were correctly considered by the legislative or regulatory body. For example, if the goal chosen by the legislative or regulatory body is constitutionally permitted, courts regularly consider whether the piece of legislation or regulation ignored another constitutionally mandated goal. With respect to the analysis of the means, courts typically consider whether there is a justifiable relationship between the declared goal and the means chosen, and whether the means chosen are excessively restrictive of protected rights. The formulae for scrutiny vary: some are strict; some more deferential towards the choices made by the political branches; while some constitutional goals, such as non-discrimination, may have a specially protected status over other permissible goals and may trigger different kinds of scrutiny.

1997); Wyoming Supreme Court, Campbell County Sch. Dist. v. State, 907 P.2d 1238 (Wyo. 1995), among many others. For an overview, see Michael A. Rebell, “Adequacy Litigations: A New Path to Equity”, in Janice Petrovich and Amy Stuart Wells (eds.), Bringing Equity Back: Research for a New Era in American Educational Policy (New York: Teachers College Press, 2005), and Michael A. Rebell, “Poverty, Meaningful Educational Opportunity and the Necessary Role of the Courts”, 85 North Carolina Law Review 102 (2007). 116 See, for example, Maastricht Guidelines, Guideline 8. 117 In the same sense, see Limburg Principles, Principles 49, 51, 56 and 57.

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The traditional ground for the employment of such analysis has been in the field of civil and political rights. There is, however, no reason why it cannot also be applied in relation to legislation or regulations regarding ESC rights. A number of examples show how these approaches can be used in the context of ESC rights. The now famous Grootboom decision,118 issued by the South African Constitutional Court, employed such analysis when it assessed the constitutional compatibility of a housing policy implemented by the Government.119 A group of homeless people who had recently been evicted by a local authority from their informal settlements approached the High Court seeking an order that the State was obliged to provide them with temporary shelter until such time as they were able to find more permanent housing. On appeal in the Constitutional Court, the plight of the particular group of claimants had been resolved, as the State had reached a settlement with them in terms of which they were provided with temporary shelter of an acceptable standard. As a consequence only the underlying constitutional question – whether or not, more generally, the State was obliged to provide to homeless people temporary shelter – was still before the Court. Relying on the constitutional right of everyone to have access to adequate housing, the Court held that the State had to put in place a comprehensive and workable plan in order to meet its housing rights obligations. The Court established that in order to determine the compliance with these obligations, three elements must be considered by the authorities: 1) the need to take reasonable legislative and other measures; 2) the need to achieve the progressive realisation of the right; and 3) the requirement to use available resources. Regarding the ‘reasonableness’ of the measures adopted, the Constitutional Court said that the State had a legal duty to, at least, have in place a plan of action to deal with the plight of “absolutely homeless” people such as the Grootboom community. An examination of the State’s housing policy at the time revealed that it focused on providing long term, fully adequate low-cost housing and indeed took no account of the basic need of homeless people for temporary shelter. The Court declared the State’s housing policy unreasonable, and thus unconstitutional, to the extent that it failed to make adequate provision for homeless persons. In a similar vein, the South African Constitutional Court decided another important case involving the right to health. South African Minister of Health v Treatment Action Campaign120 dealt with the adequacy of the State’s efforts to prevent the spread of HIV – in particular the transmission of HIV from mothers to their newborn babies at birth. Studies by the World Health Organisation (WHO) and indeed by South Africa’s own Medicines Control Council had shown that the administration of a single dose of the anti-retroviral drug Nevirapine to mother and child at birth safely prevents the mother-to-child transmission of HIV in the large majority of cases. Nevertheless, the State generally refused to provide the drug for this purpose at public health facilities. The Treatment Action Campaign, an umbrella body for a collection of NGO’s and social movements advocating better prevention and treatment options for HIV/Aids approached the High Court seeking an order directing the State to make Nevirapine available at all public health facilities where pregnant women give birth to prevent the mother-to-child transmission of HIV and to devise a comprehensive plan to prevent the mother-to-child transmission of HIV. On appeal to the Constitutional Court this order was in essence upheld. The Court held that the State’s refusal to make Nevirapine available more broadly, and its failure to have a comprehensive plan to deal with the mother-to-child transmission of HIV, was unreasonable and breached the section 27(1) right of indigent mothers and their new-born babies to have access to health care services. In light of the evidence produced, the Court rejected the State’s concerns about the safety and efficacy of Nevirapine. The Court also accepted that there was significant latent capacity within the public health care service to administer the drug effectively and to monitor its use and effects. As a result, the Court directed the State to make Nevirapine available at all public health facilities where its use was indicated; and to devise and implement a comprehensive plan to prevent the mother-to-child transmission of HIV.

118 Constitutional Court of South Africa, The Government of the Republic of South Africa and others vs. Irene Grootboom and others, 2001 (1) SA 46 (CC), October 4, 2000. 119 The summaries of the Grootboom decision and the next case were written by Danie Brand. 120 See Constitutional Court of South Africa, South African Minister of Health v Treatment Action Campaign, 2002 (5) SA 721, July 5, 2002.

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A similar path was taken by the Argentine Supreme Court, when deciding on a collective injunction regarding the right to health. In the Asociación de Esclerosis Múltiple de Salta case,121 the Court upheld an appellate court decision which nullified a regulation issued by the Ministry of Health excluding from the mandatory minimum health insurance plan some treatments related to multiple sclerosis. The Court followed the opinion of the Attorney General, who considered the regulation to be unreasonable as it affected the right to health as protected by international human rights treaties. The Attorney General found that the State offered no reasonable justification for the exclusion of some previously protected situations from full medical coverage. The Czech Constitutional Court has followed a similar approach. In its Pl. US 42/04122 decision, the Court struck down mandatory statutory eligibility requirements for pension benefits, holding they were unnecessary, disproportionate and contrary to the principle of equality. The statute required the potential beneficiary to file a claim during a two-year time frame in order to claim a pension to support a dependant child. The Court considered that while the State goal (proper administration of public social security funding) involved limiting the possibilities for claiming the benefit, and thus was legitimate, the same goal could be achieved by different means that would not affect the fundamental right. Similarly, the US Supreme Court of the United States decided that a statutory restriction in the eligibility conditions for a food stamp program was unconstitutional,123 confirming a lower court’s decision to include the plaintiffs in the program. 3.3.2 Prohibition of retrogression The Committee on ESC Rights has devoted some attention to the prohibition on States of deliberately introducing retrogressive measures:124 The underlying principle is that if the International Covenant on ESC Rights requires the progressive realisation of the rights it includes – acknowledging the necessary gradual character of their full enjoyment –, it also forbids States to take steps to worsen their realisation.125 As a standard for normative comparison, the prohibition of retrogression means that any measure adopted by the State that suppresses, restricts or limits the content of the entitlements already guaranteed by legislation, constitutes a prima facie violation. It entails a comparison between the previously existing and the newly passed legislation, regulations or practices, in order to assess their retrogressive character. Such comparisons are not foreign in a range of areas of law: a common criminal law principle is the retroactive character of the most benign criminal law; labour law requires comparison of statutory and collectively bargained clauses

121 See Argentine Supreme Court, Asociación de Esclerosis Múltiple de Salta c. Ministerio de Salud – Estado Nacional s/acción de amparo-medida cautelar, Attorney General´s brief of August 4, 2003, Court decision of December 18, 2003. 122 See Constitutional Court of the Czech Republic, Pl. US 42/04, June 6, 2006. 123 See US Supreme Court, U.S. Department of Agriculture v. Moreno, 413 U.S. 528, June 25, 1973. The challenged statute excluded from food stamp benefits any household containing an individual who was unrelated to any other household member. The Court found that the exclusion violated the due process clause of the US constitution, considering the distinction “wholly without any rational basis”. 124 See CESCR, General Comments No. 3, The nature of States parties' obligations (Fifth session, 1990), U.N. Doc. E/1991/23, para. 9; No. 13, The right to education (Twenty-first session, 1999), U.N. Doc. E/C.12/1999/10 (1999), para. 45; No. 14, The right to the highest attainable standard of health (Twenty-second session, 2000), para. 32; No. 15, The right to water (Twenty-ninth session, 2003), U.N. Doc. E/C.12/2002/11 (2003), para. 19; No. 17, The right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15, paragraph 1 (c), of the Covenant), U.N. Doc. E/C.12/GC/17 (2006), para. 27; No. 18, The right to work, (Thirty-fifth session, 2006), U.N. Doc. E/C.12/GC/18 (2006), para. 21; No 19, The right to social security, (Thirty-ninth session, 2007), U.N. Doc. E/C.12/GC/19 (2008), paras. 42 y 64. See, also, Maastricht Guidelines, Guideline 14(e). 125 For an in-depth analysis, see the articles compiled in Christian Courtis (ed.), Ni un paso atrás. La prohibición de regresividad en materia de derechos sociales (Buenos Aires: Editores del Puerto, 2006).

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in order to assess the validity of the most favourable clause; international investment law includes clauses granting the most-favoured nation treatment; and international human rights law institutes the pro homine principle, which imposes a preference for the more protective human rights clause in case of overlap. While the prohibition of retrogression is not absolute, under the jurisprudence of the Committee on ESC Rights, deliberately retrogressive measures constitute prima facie violation – unless the State can prove, under heightened scrutiny, that they are justified. Domestic courts have employed this prohibition of retrogression in a variety of settings. The Portuguese Constitutional Tribunal provides interesting examples of its invocation. For instance, the Constitutional Tribunal heard a constitutional challenge against a statute that abrogated a previous statute establishing the National Health Service. The Tribunal held that the constitutional right to health expressly imposed on the government a duty to establish a national health service, and that the abrogation of that statute was unconstitutional:

“If the State does not comply with the due realization of concrete and determinate constitutional tasks that it has in charge, it can be held responsible for a constitutional omission. However, when the State undoes what it had already done to comply with those tasks, and thus affects a constitutional guarantee, then it is the State action which amounts to a constitutional wrong. If the Constitution imposes upon the State a certain task – the creation of a certain institution, a certain modification of the legal order – then, when that task has already been complied with, its outcome becomes constitutionally protected. The State cannot move backwards – it cannot undo what it has already accomplished, it cannot go backwards and put itself again in the position of debtor (…). Generally, social rights translate themselves in a duty to act, especially a duty to create public institutions (such as the school system, the social security system, etcetera). If these institutions are not created, the Constitution can only give ground to claims for their creation. But, after they have been created, the Constitution protects their existence, as if they already existed when the Constitution was adopted. The constitutional tasks imposed on the State as a guarantee for fundamental rights, consisting in the creation of certain institutions or services, do not only oblige their creation, but also a duty not to abolish them once created. This means that, since the moment when the State complies (totally or partially) the constitutionally imposed tasks to realize a social right, the constitutional respect of this right ceases to be (or to be exclusively) a positive obligation, thereby also becoming a negative obligation. The State, which was obliged to act to satisfy a social right, also becomes obliged to abstain from threatening the realization of that social right.”126

In another case, the Constitutional Tribunal considered the constitutional challenge of a statute regulating a guaranteed minimum income benefit.127 The new statute changed the minimum age limit for those receiving benefits, adjusting the age from 18 to 25 years, thus excluding people from 18 to 25 years old who had previously been covered. The Constitutional Tribunal considered, amongst other issues, that the statute defined the minimum content of the constitutional right to social security, and that new legislation narrowing the scope of beneficiaries amounted to a deprivation of that right for the excluded category of persons, and thus it was held to be unconstitutional.

126 Portuguese Constitutional Tribunal (Tribunal Constitucional), Decision (Acórdão) Nº 39/84, April 11, 1984. 127 Portuguese Constitutional Tribunal, Decision (Acórdão) Nº 509/2002, December 19, 2002.

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The Argentine Supreme Court also employed this approach when reviewing a constitutional challenge to a statutory change in the area of employee occupational health and safety benefits.128 The previous system provided employees who claimed to be victims of occupational health and safety violations with an option: the employee had to chose between a no-fault, tabulated compensation regime, with a lower standard of proof, or a full compensation tort regime, where the plaintiff had to prove negligence. In September 1995, the Argentine Congress approved legislation which overhauled the entire occupational health and safety compensation system. The court-based worker’s compensation scheme was left aside, and a new insurance scheme managed by private entities was established. In the Aquino case, the plaintiff challenged the constitutionality of this legislation which removed the option to obtain full compensation through tort action. The Supreme Court held that the new regime was unconstitutional. The Court considered that the new legislation violated the prohibition of retrogression, by adopting a measure that deliberately restricted the right to full compensation. The Court based its opinion not only on constitutional grounds (including the right of the worker to dignified and equitable working conditions), but also drew on international human rights standards. The Colombian Constitutional Court has also held in a number of cases that retrogressive measures in the field of ESC rights are to be logically considered a breach of State duties, and thus should be subjected to heightened constitutional scrutiny. For example, the Court struck down retrogressive legislation regarding pensions,129 health coverage,130 education,131 and protections for the family and workers,132 and also retrogressive administrative regulations regarding housing.133 In some cases, however, the Court considered that the State’s justifications for the introduction of retrogressive legislation regarding workers’ protections against dismissal were enough to overcome the usual presumption against such steps.134 In the same vein, the Belgian Court of Arbitration has read article 23 of the Belgian Constitution, which enshrines economic, social, cultural and environmental rights, as imposing a ‘standstill effect’, forbidding a significant retrogression in the protection of those rights offered by legislation at the moment of the adoption of the Constitution. In a case concerning the alleged reduction of social assistance benefits, the Court said that:

“Even if it is true that articles 10 and 11 of the Constitution impose, in principle, the comparison of the situation of two different categories of persons, and not the situation of a same category of persons under the older and new legislation, which would make impossible all modification of legislation, the case is not the same when a violation of the “standstill” effect of article 23 of the Constitution is invoked jointly with them. In fact, this effect forbids, regarding the right to social assistance, significant retrogression in the protection offered by legislation, in this matter, at the moment of the entry in force of article 23. It logically derives from this that, to decide on the potential violation, by a statutory norm, of the “standstill” effect enshrined in article 23 of the Constitution in reference to the right to social assistance, the Court must proceed to compare the situation of the beneficiaries of this norm with their situation under the authority of the older legislation. A breach of articles 10 and 11 of the Constitution would occur if the extant norm entails a significant decrease in the protection of the rights guaranteed in the field of

128 Argentine Supreme Court, Aquino, Isacio c. Cargo Servicios Industriales S.A. s/accidentes ley 9.688, September 21, 2004. 129 See Colombian Constitutional Court, decision T-789/2002, September 24, 2002. 130 See Colombian Constitutional Court, decision T-671/2002, August 20, 2002. 131 See Colombian Constitutional Court, decision C-931-2004, September 29, 2004. 132 See Colombian Constitutional Court, decision C-991-2004, October 12, 2004. 133 See Colombian Constitutional Court, decision T-1318/2005, December 14, 2005. 134 See, for example, Colombian Constitutional Court, decision C-038/2004, January 27, 2004. The Court found that the goal chosen by the State – reducing unemployment – was imperative, and that the new legislation met a number of conditions: (i) the careful consideration of the adopted measures by the Legislature; (ii) the consideration of alternatives and (iii) the proportionality of the measures adopted in relation with the intended goal. See paras. 32-48.

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social assistance by article 23 regarding a particular category of persons, in relation to other categories of persons that have not suffered a similar breach of the “standstill” effect enshrined in article 23”.135

4. Concluding remarks This article has tried to show that defining the content of ESC rights and developing standards for their adjudication is not impossible, and that it has been done and continues to be done by courts and adjudicative bodies across the world. Innovative conceptual approaches have enables judged to consider different aspects of ESC rights: both negative and positive obligations, and both procedural and substantive duties. The list of standards offered here is not exhaustive, and the cases referred to – and of course other cases – can be also classified under other criteria.136

135 See Belgian Court of Arbitration (Cour d´Arbitrage), case Nº. 5/2004, January 14, 2004, para. B. 25.3. See also case Nº 169/2000, November 27, 2002, paras. B.6.1 to B.6.6. 136 For instance, under the distinction between duties to respect, duties to protect and duties to fulfill, frequently used by the UN Committee on ESC Rights. See, for example, International Commission of Jurists, Courts and the Legal Enforcement of Economic, Social and Cultural Rights, Human Rights and Rule of Law Series No. 2, ICJ, Geneva, 2008, pp. 42-54.

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International Monitoring Procedures of Compliance with Economic and Social Rights Andrzej Marian Swiatkowski, First vicepresident of the European Committee of Social Rights of the Council of Europe

I. Introduction The International Labour Organisation’s137 conventions and the Council of Europe treaties such as the Social Charter138 and the Code of Social Security139 are the fundamental to international labour rights140. In accordance with the Vienna Convention, these international treaties provide legal ground and should be used by national labour and social security courts. International organisations concerned with human rights protection such as the UN, the ILO, and the Council of Europe encourage, persuade as well as evoke diplomatic pressure on member state authorities to abide by the conventions and the international treaties, which assure social and economic rights regulated by labour and social security provisions. The aim of this article is to consider the implementation and the applicability issues in relation to the ILO convention and the European Social Charter by the member states’ courts. Further, to consider issues related to the assurance of direct social security as is provided by the ILO conventions and other international treaties. The issues which demand closer scrutiny concern matters dealing with the theory of the existence within domestic legal systems, international sources of law as are accepted by international labour law. This includes the position of international labour law norms within the hierarchy of domestic labour and social security law regulations, as well as the specificity of the norms, which may be transformed into self-executing norms. Alternatively the article will concern norms which may be introduced to a domestic legal system of particular member states with the assistance of norms introduced by appropriate domestic bodies, that are, therefore non self-executing. The raised norms are of a social and economic character that are declared and/or are assured by ILO conventions and other international treaties.

137 Full collection of conventions, ILO recommendations including ILO Committee of Experts for the Application of Conventions and Recommendations is published in a two tomes: Code of International Labour Law, ed. N. Rubin with consultation with E. Kalula and B. Hepple, Cambridge University Press, Cambridge 2005: Vol.I – Law, Practice and Jurisprudence; Vol. II. Book 1 and 2 – Principal Standards of International Labour Law. The newest systematic lecture on international labour law is given by J.-M. Servais, International Labour Law, Kluwer Law International, The Hague 2005. 138 Both Social Rights Charters (1961 and 1996) including the Additional and Supplementary rotocols from 1988, 1991 and 1995 are published in: European Social Charter, Collected texts (5th edition), Council of Europe Publishing, Strasbourg 2005. 139 Polish text of the European Social Security Code published in: Podstawowe dokumenty Rady Europy z dziedziny polityki społecznej (Fundamental Documents of the Council of Europe and Social Policy), selected and edited by: R. A. Henczel, J. Maciejewska, Wydawnictwo Naukowe SCHOLAR, Warszawa 1997, s. 201 and following. 140 “International labour rights” are understood as legal order established by international institutions having a global range – the International Labour Organisation as well as regional organisations such as the Council of Europe and the European Union. The concept of legal order is described in the following publications: Międzynarodowe prawo pracy (International Labour Law), Vol.I, C.H.Beck, Warszawa 2008 (being published); Karta praw społecznych Rady Europy (Social Rights Charter of the Council of Europe), C.H. Beck, Warszawa 2006; Charter of Social Rights of the Council of Europe, Kluwer Law International, Studies in Employment Law and Social Policy 2007;Carta de Los Derechos Sociales Europeos, EduUNTREF, Buenos Aires 2007; Europejskie prawo socjalne (European Social Laws), Vol.I-III, Dom Wydawniczy ABC, Warszawa 1998-2000.

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The final issue that will be raised is of vital importance, primarily concerning the accessibility and necessity of international labour and social security regulations by domestic labour and social security courts. If it is to be decided that the ILO conventions and other international treaties passed by the UN and regional organisations (especially those passed by the Council of Europe that in order to protect human rights consider social and economic rights as subjective rights), domestic labour and social security courts in which there is a monistic approach to legal order, should be obligated to apply ILO conventions and other international treaties directly. At the tenth United Nations Convention on Human Rights a resolution was passed on the 24th of November 2003, which concerned domestic courts and their promotion and protection of human rights and fundamental freedoms.141 The resolution was concerned with how vital it is for the judiciary to be informed about the necessity of being responsible for state authorities to abide by human rights as well as social and economic rights regulated by the ILO and other international treaties. The Vienna Declaration makes reference to the Bangalore Principle, which was passed at a conference held in Bangalore, India in 1988.142 The Principle dealt with the importance of creating awareness amongst legal practitioners with regards to international sources of law concerning human right protection (including social and economic rights), in domestically litigated matters. Each of the abovementioned resolutions heightens the importance of the role of the judiciary within the human right protection process. The term “applying international regulations” is not a rigid concept. It is only when the court makes reference to norms which resolve a matter that it is possible to deduce that the “applying of regulations” has occurred. In many situations domestic judiciary utilise international regulations in order to strengthen arguments for the acceptance of a particular matter to be solved. This is more so the case when domestic legislation itself is unclear or does not provide valid regulations to the matter on hand. However if a domestic judgment makes reference to the applicability of ILO conventions or any other international treaty, international sources of labour and social security law by domestic labour courts can be made applicable to a matter where social and economic rights need to be protected. II. The Theory of the Applicability of International Sources of Labour Law

In order to analyse the issues concerning the applicability of international sources of law and the norms by domestic labour courts, one must go beyond the labour law question. Instead one must look also to relations existent between domestic legislation of member states and international public law. Such public law is created international institutions competent in enforcing conventions and international treaties, institutions such as the International Labour Organisation and the Council of Europe. In order to understand how such relations exist between the two legal systems,, one must look to monistic and dualistic theory of law.143

1. Monistic Theory According to the monistic theory, the two legal systems, i.e. the domestic and the international, constitute the same legal system. Therefore the international labour law norms

141 Vienna Declaration on the Role of Judges in the Promotion and Protection of Human Rights and Fundamental Freedoms. http://www.bmaa.gv.at/view.php3?f_id=3300&LNG=en 142 http://www.thecommonwealth.org/Templates/Internal.asp?NodelD=36767 143 C.Thomas, M. Oelz, X. Beaudonnet, The use of international labour law in domestic courts: Theory, recent jurisprudence and practical implications (w:) Les normes internationales du travail: un patrimoine pour l’avenir. Mélanges en l’honner de Nicolas Valticos, direction J.-C. Javillier, B. Gernigon, coordinateur G.P. Politakis, Bereau international du Travai, Genève 2004, s. 258 and following.

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must be the same as the domestic regulations within that legal system and utilized by all state bodies, in particular by the labour courts. The monistic theory is therefore based on the automatic incorporation of international labour laws into the domestic legal system. 144 In accordance with the accepted principle in every legal system pacta sunt servanda, all entities addressed by the obligatory international regulations, must fulfil their responsibilities assigned to them when the ratification of the ILO conventions and Council of Europe treaties occurred. The automatic incorporation of international labour laws into domestic legal systems of member states that accept the monistic theory means the authorities of such states do not have the obligation to pass such regulations. Such regulations are simply passed into the domestic labour laws. In light of the monistic theory it is unnecessary for the authorities of member states that have the power to ratify international labour law regulations a casu ad casum, to ratify regulations which reaffirm the enforceability of international regulations within the domestic system. Such ad hoc legislation would be considered superfluous, threatening the unity of the monistic legal system. The monistic theory is supported only by 22 of the 47 European states145. The authorities of South American states on the other hand systematically regulate the international labour provisions. These states consider that superflua non nocet. This unnecessary approach does not create complications in social matters regulated by labour law, as the legislation simply copies and transfers the text of the international provisions into the domestic legal system. 2. The Dualistic Theory The dualistic theory is based on the concept of two separate functioning legal systems: the domestic and the international. According to this theory the introduction of an international labour law norm into the domestic legal system of a member state that has ratified the ILO conventions and/or other Council of Europe international treaties, means that the authorities must pass regulations each time an international provision is to enter into the domestic labour law system. This may occur via two methods. The first method occurs when the authorities of a member state reproduce the international labour law norms, and the second is via a new legal statute entering the domestic legal system. The second method is similar to the automatic incorporation technique utilised by monistic theory advocate member states. The dualistic theory allows for member state authorities to retain control with regards to the appropriateness of ratified international labour law regulations with the standards of the domestic legal system in its constitutional context. The body authorised within a member state to introduce an international norm into the domestic legal setting, retains the power of controlling whether such norms abide by the domestic rules.

Member states accepting the dualistic theory to a greater extent than those accepting monistic theory, regard labour law to be part of a domaine reserve, reserved for a particular member state. Even if this is not necessarily the case, undertaking ratification decisions of ILO and Council of Europe conventions and treaties, is regarded as a task for competent member state authorities. Therefore the decisions relating to the introduction of such international norms into a domestic setting should only occur, once such norms are deemed in accordance with the constitution or at least with the legislative processes that are usually applied to

144 V.A.Leary, International Labour Conventions and National Law: The Effectivness of Automatic Incorporation of Treaties into National Legal System, Martinus Nijhoff Publishers, The Hague/Boston/London 1982, s. 35 and following. 145 Albania, Armenia, Azerbaijan, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Estonia, France, Greece, Holland, Lithuania, Luxembourg, Moldova, Poland, Portugal, Slovakia, Slovenia, Spain, Turkey.

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domestic labour law regulations of the same nature. 146 The dualistic theory is utilised in 12 European countries.147 The 13 remaining countries have not adhered to either theory (similarly like many other ILO members), since the dualistic theory is accepted with monistic elements. These countries abide by the “self-realising” 148 theory, whereby an international labour law norm is only introduced automatically if it is not in conflict with the basic domestic legal system expressed by the constitution.

3. The Specificity of International Labour Law Norms

It is possible to deduce from the above that certain member states assign great importance

to the type of labour law norm that exists within an ILO convention or within an international treaty. According to dualist theory international law statutes are addressed to member states directly. Their obligations are directed at the authorities of such states. There is a lack of legal basis upon which entities (in labour and social security issues these are employees and those covered by such security in labour relation and security benefits matters) could take advantage of international labour norms in litigation processes carried our before domestic courts. The term “self-realising” should be reserved primarily for evaluating the substance and nature of particular regulations forming the described standards. This term used in an international public law context is synonymous with being used to describe international norms that are automatically incorporated into domestic legal systems. Whether such international public law norms are regarded as self-realising or not, are decided by the administrative, by legislature or by executive powers.149 Utilising international labour law regulations by domestic labour courts is valid when formulating the rights and obligations of parties to individual and collective labour relations. Such international norms are also valid when a court is deciphering benefits and social security matters. Thirty years worth of international labour law literature suggests that the same type of international labour norms may be treated by certain member states as self-realising and by others as having no particularly higher attributes. 150 This hypothesis will be explained further in the article. Developing this concept further, the theory is formed that it is the judiciary passing judgments in labour and social security matters that decide on the level of international labour norms permissible.

4. International Labour Law Norms within the Domestic Labour and Social Security Law Hierarchy

146 In federal countries, ILO conventions and international treaties, which regulate matters governed by federal powers, require acceptation of a qualified body to pass the regulations into the federal legal system. E.g. In Germany the establishment of labour law norms is a federal matter, therefore the federal Parliament must pass a new provision which can be ratified before it can be entered into the system of law. After the appropriate statute is published, the ILO convention or the international treaty enters into the system of law within the country. 147 Austria, Denmark, Finland, Germany, Great Britain, Hungry, Iceland, Ireland, Italy , Malta, Norway, Sweden 148 V.A.Leary, op.cit., pp. 65 and following.; L. Florek, Znaczenie umów miedzynarodowych w prawie pracy (Meaning of international agreements within labour law)(w:) Prawo pracy u progu XXI wieku (Labour Law and the 21st Century). Stare problemy i wyzwania współczesności (Old Problems and Modern Challenges), Materiały z XIII Ogólnopolskiego Zjazdu Katedr i Zakładów Prawa Pracy (Materials from the 9th National Labou Law Departments in Poland), Białystok 21-22.09.2001, Wydawnictwo Uniwersytetu w Białymstoku, Białystok 2001, pp. 50 and following. 149 In the USA, either Congress or the President may pass an international treaty, which may be generally regarded as the “supreme law of the land”, as statutes that are not self-realising. 150 N. Valticos, Droit international du travail et droit interne francais, Travaux de Comité français de droit international privé, 1973-75, 1977, pp.13 and following.

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ILO conventions and Council of Europe treaties existing ex lege or incorporated ad hoc within the majority of European countries hold a higher position in the labour law hierarchy than domestic legislations. 151 This position is allocated by the constitutions of member states152 or by the judiciary.153 Within the remainder of European countries international norms are assured the same position alongside statutes passed by legislative bodies. In those countries should there be a conflict between the domestic and the international norms, the courts are to decide according to lex posterior derogat legi priori.154 Certain member states give priority to international labour law standards and describe them as such within labour law regulations.155 ILO conventions and Council of Europe treaties that take advantage of such priority status should be applied directly by domestic labour courts. However, a necessary condition in using all labour regulations, including those used by labour courts, is assured by the regulations protecting subjective entities, i.e. employees and those insured by social security. 5. The Problem of Subjective Rights in International Labour Law Norms In international and domestic labour law regulations it is debated that international labour law norms within international conventions are addressed only to the authorities of member states. Such conventions place obligations on member states with monitoring institutions controlling whether obligations are being abided by. These institutions include the ILO Committee of Experts on the Application of Conventions and Recommendations and the Council of Europe Committee of Experts of Social Rights, to which state authorities should report to. Should they fail to do so supervisory processes commence. Further there may be a reaction to embark upon a resolution at the General Conference of the ILO or by the Committee of Ministers of the Council of Europe. Because of the ILO Committee of Experts and the Council of Europe Committee of Experts influences, legal practitioners have begun to abide by the ILO conventions and the international treaties of the Council of Europe, treating their provisions as enforceable law. The European Committee for Social Rights (known until 1988 as the Committee of Independent Experts) has analysed that the international norms regulating subjective rights in both Social Charters include:

- Art. 1 (2) ensuring the right to equal treatment and the prohibition of discrimination within work relations as well as to ensure the effective exercise of the right to work;

- Art. 2 ensuring the effective exercise of the right to just conditions of work; - Art. 4 (2) and (5) ensuring the effective exercise of the right to a fair remuneration,

ensuring equal treatment of workers in remuneration related matters as well as to recognise the right of all workers to a reasonable period of notice for termination of employment;

- Art. 5 and Art. 6 (3) and (4) ensuring workers the right to organise or to join such organisations, as well as the right to bargain collectively with regards to working

151 V.A.Leary, op.cit., pp. 118 and following.; L.Florek, op.cit., pp. 41 and following. 152 Albania (Art.122); Armenia (Art.6); Azerbaijan (Art.148 (2)); Bulgaria (Art.5 (4)); Croatia (Art.140); Cyprus (Art.169 (3)); Czech Republic (Art.10); Estonia (Art.123); France (Art. 55); Greece (Art.28 (1)); Holland (Art. 94); Hungry (Art. 7), Moldavia (Art. 4); Poland (Art.91 § 2); Portugal (Art.8); Slovakia (Art. 7 (5)); Slovenia (Art. 153 (2)); Spain (Art. 96 (1)). 153 Belgium, Luxembourg 154 C.Thomas at al.,op.cit., p. 262. 155 Case of Moldavia. See: Labour Code, Act. No. 154-XV from 28.03.2003, Monitor Official, 2003-07-29, No. 159-162, sec. 13.

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conditions and remuneration, as well as the right to undertake collective action including the right to strike;

- Art. 7 rights of young persons to protection and the prohibition of employing children; - Art. 20 provision prohibiting discrimination based on sex within the workplace; - Art. 24 and 25, provisions protecting workers in cases of termination or group

redundancies or when the employer is made insolvent; - Art. 28 the right of workers within the undertaking to stability within the work

relationship as well as the right to facilities appropriate in order to enable workers to carry out their functions and to have their interests represented. 156

However not all member state authorities share the views of the independent experts of

international organisations dealing with the supervisory process with relation to abiding by international standards in matters of the rights of workers and the insured under the ILO and Council of Europe conventions and treaties. According the Belgian Conseil d’Etat, Articles 1, 2, 3 and 15 of the Social Charter may be used directly by Belgian courts only if they were to be complete, i.e. not requiring domestic regulation input. 157 Further another high Belgian court, the Cour d’Arbitrage declared that Articles 5 and 6 of the Charter may be applied directly. 158 Similar situations have arisen in other member states. In the Netherland and in Germany courts have been known to refuse certain provisions of the conventions and international treaties to be used directly before domestic labour courts. However, in justifying their refusal the courts would make references to the international standards as per the regulations within the ILO conventions or the Social Charter, without wanting to apply them directly. 159 Only the French Conseil d’Etat and the Cour de Cassation, as well as the Polish Supreme Court have refused certain provisions of the Revised Social Charter (namely Articles 4(14) and 12 (2 – 3)), to be used in matters heard before the domestic courts on grounds of “ne produit pas d’effort direct á l’égard des nationaux des états contractants”. The French courts have justified their rulings according to the arguments that conclusions expressed by supervisory bodies do not assure subjective rights to entities nor are their arguments convincing. 160 The Civil Chamber within the Polish Supreme Court passing a judgment on the 13th of April 2007, made a surprising decision based on an evident lack of knowledge of issues raised by the European Committee for Social Rights. The Polish court ruled that neither Article 12 (2-3) of the Social Charter or any other provision of Polish law, enforces upon the Polish state the obligation to ensure those citizens who are unable to carry out employment due to ill health, old age or due to being unemployed for reasons not of their own choosing, the right to social security benefits assuring necessary needs. 161

156 G.Gori, Domestic enforcement of the European Social Charter: The way forward (w:) Social rights in Europe, eds. G. de Búrca, B. de Witte with the co-operation of L. Ogertschnig, Oxford University Press, Oxford 2005, p. 72. 157 Hoefkens v. Etat Belge, No. 63473, 10 December 1996, citing for G.Gori, op.cit., footnote 46. 158 Syndicat progressiste pour le personnel de la gendarmerie, No.62/93, 15 July 1993. See: O. De Schutter, S. Van Drooghenbroeck, Droit international de droits de l’homme devant le juge national, Bruxelles 1999, p.51. 159 See: decision of the Federal Court of Germany handed down on 20.10.1981; Federal Labour Law decision on 12.03.1985, (Art.5 and 6 of the European Social Charter). Dutch courts made rulings about the impossibility of direct application of Art.1 (2), Art. 6 (1-2), Art.12, Art. 13 (4), Art.18 (1-3), Art. 18 (8) of the Social Charter. However the courts did rule it possible and permissible to apply Art. 6 (4) of the Charter. See: G. Gori, op.cit., pp. 78-79. 160 G.Gori,op.cit., p.79. 161 I CSK 488/2006, Supreme Court Bulletin 2007/7; Rzeczpospolita 2007/200, p.C4.

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The hesitancy of Belgian, Dutch and German courts as well as the decided position of French courts has not convinced the European Committee of Social Rights. The Committee has retained its earlier position in accordance with all the provisions of the Charter, including those which assure the subjective rights of workers and the insured as well as the norms establishing certain social goals, claiming they should be applied by authorities of member states and should be used by domestic labour law courts dealing with workers’ and social security claims. On the other hand, member states who accept the monistic theory of labour law should see their domestic labour courts apply the international provisions of ILO conventions and Council of Europe treaties directly, in employment and social security matters. Previous judgments of domestic higher courts dealing with matters involving the ILO conventions and matters of labour and social security within monistic theory member states, indicate that at least the appellate and the high courts as well as the constitutional tribunals uphold he possibility of passing down judgments that are based on ratified ILO conventions.

III. Direct Application of International Labour

Provisions by Domestic Courts

The direct application of international labour provisions by domestic courts (the statute-like application) is used when:

a) there are no domestic labour provisions; b) there is a conflict between within the domestic provisions; c) there is constitutional consistency with the provisions within the domestic labour

regulations; d) the necessity to assure support to domestic labour regulations.

It is possible to deduce from the above the domestic courts may utilise ILO conventions and international treaties either as fundamental or as supplementary sources of labour law. An example of such direct usage by the judiciary is seen in Dutch, Belgian, German and Italian courts dealing with the ILO Convention No. 132 concerning annual paid leave162 and Article 6 § 4 and Article 13 of the Social Charter. 163 In most of the situations, domestic courts sought support from the international provisions in order to strengthen or develop their arguments when solving matters. The Polish Supreme Court made reference to ILO Conventions No. 29164, 87165, 98166 and 111.167 On three occasions the court in question made reference to Art. 4 § 1 of the Social Charter. The provision obligates Polish authorities to assure workers just remuneration. The Court also reference to Art. 8 § 1 of the Charter.168 This provision deals with the protection of maternity leave and was necessary for the Court to strengthen its position on disallowing discrimination of workers based 162 C.Thomas et al., op.cit., p. 268. 163 G.Gori, op.cit., s. 77-78. 164 Judgment on 5.04.2005, I PK 208/2004, OSNP 2006, s.1-2, pos.3. 165 Judgment passed by seven courts on 15.10.1992, I PZP 35/92, OSNCP 1993, s.1-2, pos.3; judgment from 23.02.2005, II PK 201/2004, OSNP 2005, s. 21, pos. 333. 166 Judgment from 6.02.2006, III PK 114/2005, OSP 2007, s.7-8, pos.94; judgment from 28.04.2005, I PK 214/2004, OSNP 2006, s.1-2, pos.8; Judgment passed by seven courts on 29.09.2006, II PZP 3/2006, OSNP 2007, s.13-14, pos. 181. 167 Judgment from 24.03.2000, I PKN 314/99, OSNAPiUS 2001, s.15, pos.480. 168 A.Świątkowski, Karta praw społecznych...(Social Charter...), op.cit., p. 561.

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on their sex and assuring female workers particular protection before and after giving birth. Citing and making reference to the international treaty ratified by Poland was not a result of necessity, but rather required to strengthen legal argument. Division 8 of the Polish Labour Code (Article 176 and Article 189¹) is legislation that deals with the mentioned problem in Poland. German, Norwegian, Romanian and Italian courts also applied Articles 1 § 3, 5, 6, 13, 15 and 24 of one of the Social Charters, in a similar fashion. 169 There is a distinct difference within Europe amongst the ‘old’ and ‘new’ EU and EEC member states and their courts in terms of applying international regulations to work relations and social security matters. In ‘new’ member states such as Poland and Romania, international labour regulations are used solely by the highest courts or by constitutional tribunals as supportive to the judgments handed down. 170 In the ‘old’ member state, courts of first instance make use of ILO conventions and/or international treaties.

IV. Applying International Labour Regulations by the European Court for Human Rights

Social rights regulated by the ILO conventions and by the Council of Europe international

treaties, often deal with issues protected by the provisions of the European Convention on Human Rights, passed on the 5th of May 1949. Although this convention protects other categories of rights (such as civil and political rights), some overlap with rights that are protected by the Social Charters. 171 The overlapping of rights protection is evident in the right to associate and the freedom not to join an employee or employer organisation. These rights are guaranteed by both Article 11 of the European Convention on Human Rights as well as by Articles 5 and 6 of the Social Charter. The European Court for Human Rights handing down a judgment based on Art. 11 of the Human Rights Convention when dealing with a matter of rights and freedoms of association as well as with collective bargaining also used the Social Charter provision in its decision. The Court interpreted Art. 11 of the Convention in a manner similar to how the European Committee for Social Rights interprets Articles 5, 6 and 28 of the Revised Social Charter, obligating authorities of member states to ensure protection for workers’ representatives as well as ensuring them effective exercise to carry out their functions when protecting workers’ interests.172 In passing down its judgment the European Court of Justice expressis verbis referred to the conclusions made by the European Committee for Social Rights. It therefore ruled the member state authorities should apply international labour law standards as provided by the Revised Social Charter. The European Court for Human Rights also used the experience of the European Committee for Social Rights in matters dealing with the protection of social security rights, ensured by Articles 11 and 17 of the Social Charter173 as well as the protection of rights and freedoms of 169 G.Gori, op.cit., pp. 86-87. 170 Constitutional Tribunal decision on 18.11.2002, K 37/01, Dz. U. Nr 196, pos. 1660 passed Art.20, Art. 59 (2) as not compliant with the Constitution, Art. 4 ILO Convention No 98, Art.6 (2) Social Charter. See: L. Florek, Wpływ miedzynarodowego prawa pracy na prawo polskie (Influences of international law on Polish law)(w:) Współczesne wyzwania europejskiej przestrzeni prawnej. Księga pamiątkowa dla uczczenia 70. urodzin Profesora Eugeniusza Piontka (Modern European Legal Issues. Commemorating Text, 70th Birthday of Prof…), eds. A. Łazowski, R. Ostrihansky, Zakamycze 2005, Kraków 2005, p. 657. 171 D.Gomien, Short guide to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg 2005, pp.29 and following., pp. 49 and following., pp. 117 and following. 172 See the decisions: Sigurdur A. Sigurjónsson v. Icelend, ECtHR (1993), Series A, No.254; Gustafsson v. Sweden (1996), Reports 1996-II. 173 Social security as a human right. The protection afforded by the European Convention on Human Rights, Council of Europe Publishing, Strasbourg 2007, passim.

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nationals of other member states being on the territory of another member state (Article 19 of the Charter – “the right of migrant workers and their families to protection and assistance”). 174 In social security matters the European Court of Justice passed a ruling based on the Human Rights Convention (Articles 1, 2, 3, 6, 8 and 14) protecting the right of property, the right to life, the right to due process, the right to privacy as well as the prohibition of derogatory and discriminatory treatment of the insured. The Court of Human Rights attempts to ensure that foreigners be treated equally on the par with nationals in matters regarding mobility within the territories of member states, ensuring the protection of property, family life and privacy as well as the freedom of religious beliefs, freedom of association, right to marriage, education and the right to freely leave the territory of the member state.

The European Court of Human Rights has passed judgments, which are binding on member states. It is for this reason that once the Court refers to the international treaties of the Council of Europe (such as the Charters), such international labour law provisions strengthen in becoming more binding on member state authorities and their nationals.

IV. The Influence of International Organisations

on Member State Authorities

The most important element in the process of international legal standards being abided by member states is the voluntary nature of adapting domestic regulations and practices to the ILO conventions and international treaties of the Council of Europe. Adapting domestic labour and social security laws to international standards may occur following a negative opinion issued by an international supervisory body as to how well a member state abides by the above said conventions. The international supervisory system has been expanded. The ILO for example encompasses the Experts Committee, the Labour Standards and the Committee on the Freedom of Association.175 The European Committee on Social Rights in the Council of Europe has a quasi-judicial role and supervises over member state authorities.176 It examines collective complaints raised by international organisations of social partners as well as independent international organisations, made with regards to member state authorities.177 From 1999 and 2007 the Committee of Social Rights heard 46 collective complaints. Nearly half of the complaints made were made on two member states (France – 11 complaints, Portugal – 9 complaints), the only states to ratify all provisions of the Revised Social Charter. During the compliant process, many authorities adjusted their regulations to the international standards of the conventions accordingly to the suggestions made by the Committee of Social Rights.178

174 H. Lambert, The position of aliens in relation to the European Convention on Human Rights, Council of Europe Publishing, Strasbourg 2006, passim. 175 K. Tapiola, The ILO system of regular supervision of the application of Conventions and Recommendations: A lasting paradigm (w:) Protecting Labour Rights as Human Rights: Present and Future of International Supervision. Proceedings of the International Colloquium on the 80th Anniversary of the ILO Committee of Experts on the Application of Conventions and Recommendations, ed. G. P. Politakis, International Labour Organization, Geneva 2007, p. 29 and following 176 A.M. Swiatkowski, The European Committee of Social Rights (w:) Protecting Labour Rights as Human Rights...,op.cit., s. 37 i nast. 177 A. Świątkowski, Quasi judykacyjna funkcja Komitetu Praw Społecznych Rady Europy (Quasi Judiciary Function of the Council of Europe Committee for Social Rights), Państwo i Prawo (State and Law) 2004, No. 9, p. 46 and following.; TenŜe, Funciones causijurisdiccionales del Comité de Derechos Sociales del Consejo Europeo, Revista de Derecho Laboral y Seguridad Social, No.7, Abril 2005, Bueonos Aires, p. 533 and following. 178 See e.g.: Complaint No.11/2001 European Council of Police Trade Unions v. Portugal. In this case the collective complaint was accepted 18.07.2001. There was a claim against the police breaching of Art.5 and 6 of the Charter. Portuguese authorities found in favour of the complainants and on 9.02.2002 amended the domestic provisions of collective labour laws (Act 14/2002), adapting them to the international standards;

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Many cases of positive supervisory actions made by the Committee of Social Rights result from

conclusions made by the Committee based on the reports filed by authorities of member states dealing with domestic labour and social security regulations and the practices of abiding by them. Such conclusions are not binding and are subject to the Governing Board of the Council of Europe.179 Under the influence of the position of the Social Rights Committee, certain member states (Belgium, Malta and Germany), amended their regulations with regards to family benefits for nationals of other member states residing within the territory of the said countries. In 2001 Poland adapted its migration regulations to the requirements of Article 19 of the Charter, allowing for the reunification of immigrant families legally residing within its territory.180

V. Conclusion

International labour and social security legal standards structured within the ILO

convention and the Social Charter of the Council of Europe, establish the minimum levels of protection of workers’ and social rights on a global (the International Labour Organisation) and European scale (the ILO/Council of Europe). Spreading such standards amongst legal practitioners who specialise in labour and social security law as well as in social and economic rights, which are understood as human rights, and which are then adapted by labour courts, will assist in unifying legal rights in member states. This theory, as understood by lawyers specialising in international law and the influence it has on domestic regulations, is understood as judicial globalization.181 A characteristic element of this occurrence is for domestic courts to pass judgments based on international provisions.

If this occurrence is to spread into the field of labour law and later to become a general practice, it is necessary to train legal practitioners and more importantly the judiciary of domestic labour courts in matters regulated by international and European labour law.

In order to successfully protect social and economic rights (regarded as human rights), regulated by labour and social security law, courts of first instance should make references in their judgments to international standards regulated by ILO conventions and Social Charters. Such referencing cannot be simply left to the sporadic use of high courts and constitutional tribunals. Instead courts of first instance should systematically apply such conventions to all matters that are not regulated or adequately covered by domestic labour and social security laws.

In order to apply international and European labour and social security norms by domestic

labour courts, lawyers and especially judges must be not only well versed in international standards

Complaint No. 13/2002 International Association Autism-Europe (IAAE) v. France. The complaint was filed on 27.07.2002. It was claimed French authorities were in breach of Art.15, Art.17, Art. E of the Charter, since the reforms introduced in the educational system did not assure autistic children the same rights in access to education. French authorities began to adapt domestic provisions to the Charter. Complaint No.17/2003 World Organization against Torture (OMCT) v. Greece. Complained filed on 28.07.2003, claiming a breach of Art.17 of the Charter, concerning inadequate protection for children at school and at home from corporal punishment. During the process Greek authorities introduced a clear prohibition of corporal punishment against children. 179 J. Maciejewska, Kontrola wykonywania przez państwa międzynarodowych zobowiązań w sferze praw człowieka – doświadczenia Europejskiej Karty Społecznej (Supervisory Mechanisms – Member States Obligations in the Sphere of Human Rights; in the Social Charter Perspective), Studia z Zakresu Prawa Pracy i Polityki Społecznej (Studies in Labour Law and Social Policies), ed. A. Świątkowski, Kraków 2006, p. 143 and following. 180 G.Gori, op.cit., p. 75, footnote 28. 181 A.-M. Slaughter, “Judicial Globalization”, Virginia Journal of International Law, vol. 40, 2000, pp.1103 and following.; K. Knop, Here and There: International Law in Domestic Courts, New York University Journal of International Law and Policy, vol. 32, 2000, p. 501 and following.

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but also in precedent judgments handed down by international bodies qualified in interpreting such provisions and in performing substantive supervision over member states. Such knowledge is not acquired through a university degree or through solicitor or judicial training. If Poland is to meet the standards of global workers rights and social rights, as well as the globalisation of the judiciary, which is to utilise international labour regulations in protecting social and economic rights of workers and the insured, the Ministry of Justice and law firms will have to realise the resolutions passed in Bangalore and in Vienna. This demand is established by the pacta sunt servanda, sanctioned by the system of international obligations of a member state when international legal order is ignored.182

182 See: J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, Cambridge 2002, p. 191 and following.

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Closing Address | António Ricoca Freire | Deputy Political Director General for Multilateral Affairs in the Portuguese Ministry of Foreign Affairs

I have the honour to conclude this excellent Conference, where we had the most interesting panellists and prolific debates during the last three days. I would like to take this opportunity to thank all the participants for the excellent work done throughout this conference. I firmly believe that it is crucial to have initiatives like this one, to mainstream economic, social and cultural rights, often underrated. The main focus of this Conference was the contribution of economic, social and cultural rights in an enlarged Europe. One of the main conclusions is that those rights have a lot in common with civil and political rights, as all of them are the basis of our security. Both have a direct impact on people’s lives. As Professor Graça Almeida Rodrigues rightly pointed at the Opening session, we cannot talk about peace and nation-building in a country whose citizens do not have food or water. Let me underline that aspect: when human beings are tortured, unjustly deprived of their freedom or facing hunger, when families live in the street and die of diseases that result from lack of basic sanitation, when discrimination occurs based on gender, ethnic origin, religion, sexual orientation or on any other ground, when human rights are massively violated, progress and sustainable development can not be achieved. Yes, both sets of rights are mutually interdependent. Yes, the realization of rights such as the right to education, health or food contributes to the enjoyment of civil and political rights. Similarly, the respect for, and the observance of civil and political rights are essential for the implementation of economic, social and cultural rights. The interrelation of all human rights is a reality but, nevertheless, the implementation of human rights – of all human rights - is still largely work in progress everywhere. Portugal is honoured to be one of the key players in the advancement of this set of rights in the UN framework. Last week, the Working Group on an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights has finally been able to reach a final version of the Protocol, after years of negotiations. This represents a huge victory to the United Nations Human Rights system, a victory of which we are extremely privileged to have made part off. My warmest congratulations go to Catarina Albuquerque, Chairperson- Rapporteur of the Working Group, who throughout these years, has worked tireless towards this aim. We now hope that the transmission of the draft text to the Human Rights Council and to the United Nations General Assembly goes smoothly and we are already working on it. This Optional Protocol is an unambiguous message about the equal importance of all human rights and Portugal will do its utmost to ensure that it comes into force as soon as possible, in order to allow for a communications procedure, as a way to reinforce the promotion, protection and realisation of economic, social and cultural rights. This will undoubtedly contribute to effective empowerment of the rights-holders, as an integral part of efforts towards the promotion and protection of all human rights, in their indivisibility, universality, interrelatedness and interdependence. The adoption of this Optional Protocol assumes an even greater importance as we celebrate this year the 60th anniversary of the International Declaration of Human Rights, which places both set of rights, civil and political, economic, social and cultural rights, at the same level. The progress achieved with the agreed text of the Protocol will bring us back to that unified version. Human Rights are at the very core of the European Union’s essence and values. As my colleague Fernando Fernandez-Arias so rightly said, the EU is made of laws and values… In an Enlarged Europe, it is fundamental to maintain coherence regarding our principles and foundations, but to adjust international documents to the contemporary reality. It is that task that I believe we have contributed to fulfil, through the adoption of the Optional Protocol.

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Let me finish by underlining that I am personally very proud that my country, Portugal, has contributed significantly to the concrete and effective promotion and protection of Economic, Social and Cultural Rights. It has been for the last twenty years a number of small but important concrete contributions for the realization of ESC Rights. I was personally involved in the negotiations in 1998, of the resolution on Economic, Social and Cultural Rights when the Commission on Human Rights finally decided to create its first ever special mechanism on a specific economic, social and cultural right: the Special Rapporteur on the Right to Education. It was a landmark decision and I am – again- proud that my country was the initiator of that specific resolution. Let me end by saying that I very much hope that States, civil society and national institutions will not miss the momentum created with the finalization of the draft Optional Protocol and will help us in the next stages in Geneva and New York to make this Optional Protocol on E.S.C Rights coming into force very soon. I thank you.

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CONFERENCE CONCLUSIONS

Catarina de Albuquerque & Virgínia Brás Gomes

Dear Speakers, Moderators and Participants, Fear not, because it is not our intention to keep you away from lunch for too long. Neither are we thinking of providing a summary of all that has been said, shared and discussed here over the past 2 and a half days. We would not be doing justice to the wealth of information shared, to the concerns voiced nor to the enormous personal and professional experience of our experts, as all of you sitting in this room will recognise. What we intend to do is to highlight a couple of queries and messages that we think can push this process of “Citizenship in an Enlarged Europe” further. Obviously we are all particularly pleased that the Conference was held at the exact time after the end of the negotiations for the optional protocol to the ICESCR. This Conference was a welcome opportunity to celebrate – among friends and yet again – the end of a long process for the agreement of a text that will be an important tool to promote citizenship not only in an enlarged Europe, but in an enlarged world! Coming back to the content of the Conference, the usual approaches to action that reflect either a top down or a bottom up perspective, permeated many of the presentations and some of the discussion. While recognising that both are part of the process of decision and that each of them has its role and functions to perform, the challenge is to find a balance where they are mutually reinforcing. There was recognition however, especially in the presentations of local projects, that in order for the bottom up approach to be effective, people – particularly those that have the greatest difficulty in exercising their rights - need to be convinced and empowered to materialise a meaningful participation, as well as to use their rights as citizens. We also realised how difficult it is to keep these projects afloat if institutions do not have adequate support to continue working towards a sustainable solution and do not have the opportunity to engage in constructive partnerships with other national and international organisations involved in similar projects. Focusing our discussion on Europe, we were reminded that our common acquis of “freedom, peace and prosperity” were greatly derived from institutional leadership, reconciliation mechanisms, regulatory frameworks, financial stability, in short, from the European Social Model. Notwithstanding the institutional and financial constraints that the Model is faced with, it still is our common acquis and perhaps our most relevant tool for social cohesion, inclusion and solidarity. In fact, the question is not whether we can afford the European Social Model, but rather if we can afford not to have it – the challenge remains on how to reformulate its material scope while preserving its spirit, philosophy and adequacy. If we had to pick one universal legal instrument that underlies the discussion on ESC-rights, then it would be the International Covenant on Economic, Social and Cultural Rights – that was in fact implicitly of explicitly present throughout the Conference. In this context, we were glad to be better informed about various initiatives currently underway to improve the supervisory and monitoring mechanisms of economic, social and cultural rights. It has been a weak link in the whole reporting exercise of States parties before the UN Committee on Economic Social and Cultural Rights. The indicators and benchmarks to be adopted – hopefully in the near future – will strengthen the need for compliance and provide States parties with a more operational grasp of the progressive realisation of ESC rights.

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Various speakers reaffirmed the universality, indivisibility, interrelatedness and interdependence of civil, cultural, economic, political and social rights. While the issue of extraterritorial obligations will certainly merit continued discussion in the future, there remains no doubt about the importance of the role of International Financial Institutions and of development cooperation in adopting a rights-based approach for the fulfilment of ESC-rights. The inter-linkages between quantitative targets of the MDG’s and respect, protection and fulfilment of human rights were also part of our considerations. We all heard a call to attention about the increasing diversity of our societies and of the cultural challenges to the universality of human rights. Cultural rights are those that particularly call for the materialisation of the vision of a bottom up approach. Globalisation also in the field of culture reinforces cultural diversity, and consequently compels us to respect relativism, difference and individuality – while ensuring full respect for human rights. Undoubtedly, this remains one of the greatest challenges for the future. Last but not least, we would like to reaffirm the unique role of independent and sustainable civil society organisations in promoting human rights. Before you go to lunch, we need to take another one minute to thank you all for your vision, input and participation, as well as our CIDESC team for their unflagging commitment to the cause and hard work for the organisation of this conference. It was a pleasure to have you all here in Lisbon.