Economic, Social and Cultural Rights

BACKGROUND

Economic, social and cultural rights are a part of the body of human rights
law that developed in the aftermath of World War II. It includes all economic
and social rights, as well as civil and political rights. 1 It was in 1966 that
ESCR were expressed as legal rights in the International Covenant on
Economic, Social and Cultural Rights, as well as through other key human
rights treaties and regional mechanisms.2

States must guarantee ESCR without discrimination on the basis of grounds

specified in the ICESCR (International Covenant on Economic, Social and
Cultural Rights), including race, clour, sex, language, religion, political or
other opinion, national or social origin, property and birth.3

WHY ARE THEY CALLED RIGHTS?

All the world’s great religious and moral traditions, philosophers,

revolutionaries, recognize that human beings deserve to live in freedom,
justic, dignity and economic security. The International Bill of Rights grew out
of these traditions, and calls for all governments to make sure their citizens
have human rights- civil, political, social, cultural and economic. Economic,
social and cultural rights were frequently mislables as “benefits,” that
individuals had no basic claims to things like food and shelter. 4 Increasing
economic globalisation and growing inequality within and between states
resulted to an urgent need for grassroots groups, NGOs, academe, and other
organisations and individuals to unite to recognise connections between
continuing, localised struggles and to realise the human rights of all persons
in practice. In understanding instances and patterns of poverty and
deprivation as violations of ESCR, and obligation is placed on states and,
increasingly, on corporation and other non-state actors, to prevent and
address such situations.5

1 Center for Economic, Social Rights. What are Economic, Social and Cultural rights?. Retrieved October 22, 2018
from http://www.cesr.org/what-are-economic-social-and-cultural-rights.
2 ESCR. Introduction to Economic, Social, and Cultural Rights. Retrieved October 22, 2018 from https://www.escr-
net.org/rights.
3 Ibid.
4 Ibid.
5 Ibid.
The International Covenant on Economic, Social and Cultural Rights is
regarded as one of the most important human rights law in the International
Bill of Human Rights, together with the Universal Declaration of Human
Rights (1948), and the International Covenant on Civil and Political Rights.

THE UN COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Article 16 states that, reports on the measures of the government taken in

order to comply with the Covenant have to be submitted to the Secretary-
General of the United Nations, who forwards them to the Economic and
Social Council. The difficulties the States have encountered in attempting to
do so gave rise to the States’ conclusion that it was deemed necessary to
establish a body with some degree of expertise to review these reports in
order to assess compliance with the Covenant. This eventually grew into the
present Committee, which is actively engage in reviewing State Party
Reports twice a year in Geneva.6

The main function of the Committee is to ensure compliance with the

undertakings of the relevant treaty.7 However, the decisions of the
Committee are not binding on States Parties. It is allowed only to issue
recommendations or opinions on whether the obligation in question has been
complied with. Thus effecting compliance is left to domestic and international
political pressure, esteem in the eyes of the international community, and
the good faith of State Parties.8

GOVERNMENT’S OBLIGATIONS UNDER THE COVENANT

The Manual by Jeff King, identified three (3) types of obligations under the
covenant:

1. Progressive Obligations- A usual observation made is that the

infrastructure necessary to implement all of the rights in the Covenant
cannot be established overnight. Thus, under the Covenant,

6 King, Jeff (2003, March). An Activist’s Manual on the International Covenant on Economic, Social and Cultural
Rights. Retrieved October 22, 2018 from http://www.cesr.org/sites/default/files/CESR_s%20Activists
%20Manual.pdf
7 Ibid. citing M. Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its
Development (Oxford: Oxford University Press, 1995)
8 Ibid. p. 28
 progressive obligation is an obligation to implement the right over
time, to the maximum of available resources. However, State Parties
may not delay the implementation of the right indefinitely.
2. Immediate Obligations- means that all of the elements of a specific
immediate obligation must be realised at once or as a matter of first
priority. If a State has an immediate obligation to adopt a plan of action
for primary education, merely commencing the plan will not suffice. It
must adopt a completed one.
3. Core Obligations- The Committee realised rather early that States were
denying the realisation of basic social rights on the pretext that the
obligations were merely progressive. The formation of a more robust
interpretation of ‘progressive obligations’ as given above was one part
of the strategy in dealing with that argument. But that alone was not
sufficient to deal with severely aggravated situations in which people
died from preventable diseases, children starved, or people were left to
sleep under the hostile open skies. The Committee thus developed the
idea that the State has a heightened obligation to protect and provide
the minimum essential levels of resources required for each right.

VIOLATIONS

There are three distinct ways of violations of rights under the Covenant:

1. Non-compliance with the rules

a. Acts of commission (active interferences with rights)
b. Acts of omission (neglecting to do what is ought to do)
2. Active State Interference (enacting laws that Prevent Unionization)
3. Failure to fulfill the Minimum Core Obligation

THREE TYPES OR LEVELS OF OBLIGATION ON STATE PARTIES (MINIMUM

REQUIREMENTS/ CORE OBLIGATIONS)

 RESPECT- the obligation to respect requires governments to refrain

from interfering directly or indirectly with the enjoyment of economic,
social and cultural rights;
 PROTECT- the obligation to protect requires governments to prevent
third parties, such as corporation, from interfering in any way with the
enjoyment of economic, social and cultural rights
  FULFILL- the obligation to fulfill requires government to adopt the
necessary measures to achieve the full realization of economic, social
and cultural rights

Labour Rights/ Economic Rights

ECONOMIC/ LABOUR RIGHTS UNDER THE COVENANT

Economic Rights declared under the Internation Covenant on Economic,
Social and Cultural Rights inlcudes:

1. Right to work
2. To receive a fair wage
3. Safe working conditions
4. Form and join trade unions

SOURCES

Article 6(1) of the International Covenant on Economic, Social, and Cultural

Rights states:

That States Parties to the present Covenant recognize the right

to work, which includes the right of everyone to the opportunity
to gain [her or his] living by work which [she or he] freely
chooses or accepts, and will take appropriate steps to safeguard
this right.

Article 7 of the same Covenant laid the right of the labour of just and
favourable confitions of work:

The States Parties to the present Covenant recognize the right

of everyone to the enjoyment of just and favourable conditions
of work.

Article 8 of the Covenant states the obligation imposed upon the parties of
their rights to collectively organized themselves and to voice out their
concerns, stating that:

The States Parties to the present Covenant undertake to

ensure: (a) The right to everyone to form trade unions and join
the trade union of [her or his] choice… (d) the right to strike…

(1)Right to Work
Article 6 of the ICESCR protects the right to work, which is the opportunity to
gain a living by work that one freely chooses or accepts. 9 The right to work is
an individual right that belongs to each person and is at the same time a
collective right. It encompasses all forms of work, whether independent work
or dependent wage-paid work.10 It is a foundation for the realization of other
human rights and for life with dignity and it Includes the opportunity to earn
a livelihood by work freely chosen or accepted.11

Everyone has the right to work. In progressively realizing this right, States
are obliged to ensure the availability of technical and vocational guidance,
and take appropriate measures to develop an enabling environment for
productive employment opportunities, ensure non-discrimination in relation
to all aspects of work,12 and develop technical and vocational guidance and
training programs, along with policies that facilitate access to employment.13

Along those lines, States have the core obligation to ensure the right of
access to employment, by avoiding measures that discriminate against
marginalized groups and by implementing national plans of action to
effectuate the right to work for the disadvantaged. 14 On the issue of ensuring
the right of access to employment, the African Commission found a violation
of the right to work when State officials arrested foreigners on the ground
that foreigners were not permitted to engage in mining, even though the
foreigners had official documents allowing them to work and live in Angola.
The Commission held that the individuals’ right to work was violated when
they lost their jobs due to the State’s arbitrary arrest and deportation.15

9 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/.
10 Committee on Economic, Social and Cultural Rights. The Right to Work. General comment No. 18.
11 ESCR-Net. The Right to Work and Workers’ Rights. Retrieved October 22, 2018 from https://www.escr-
net.org/rights/work.
12 ESCR-Net. The Right to Work and Workers’ Rights. Retrieved October 22, 2018 from https://www.escr-
net.org/rights/work.
13 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/.
14 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/.
15 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/ citing Institute for Human
Rights and Development in Africa v. Angola, Communication No. 292/04, 43 rd Ordinary Session, 22 May 2008, para.
75-76.
The right to work also includes the prohibition of forced labor. 16 Explicitly
requiring States to “abolish, forbid and counter” all forms of forced labor.
Defined in ILO Convention No. 29 Concerning Forced or Compulsory Labor,
art. 2(1), as “involuntary work or service which is extracted from any person
under the menace of any penalty.”17

It is also important to note that the right to work should not be understood as
an absolute and unconditional right to obtain employment.18 The right to
freely chosen or accepted work is conditional, on the possibility of earning
one’s living with this job, for example, it does not mean that everyone who
wants to be a full-time musician has the right to earn his or her living this
way.19

(2)Right to a Fair Wage and Safe Working Conditions

The ICESCR protects the right to just and favorable work conditions, including
the right of all workers to receive “fair wages and equal remuneration for
work of equal value.”20

The right to a just and favourable conditions of work is closely connected

with the right to work. States are obliged to ensure fair wages, equal pay for
equal work, and equal remuneration for work of equal value. Workers should
be guaranteed a minimum wage that allows for a decent living for
themselves and their families. Working conditions must be safe, healthy, and
not demeaning to human dignity. Employees must be provided with
reasonable work hours, adequate rest and leisure time, as well as periodic,
paid holidays.21

The ICESCR’s emphasis on equality also prohibits States from discriminating

against women, and requires States to “ensure equal opportunities and

16 General Comment No. 18 para. 6

17 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/
18 General Comment No. 18
19 Human Rights Resource Center, University of Minnesota. Circle of Rights-Economic, Social & Cultural Rights
Activism: A training Resource. Retrieved October 22, 2018 from
http://hrlibrary.umn.edu/edumat/IHRIP/circle/modules/module10.htm
20 ICESCR, Art. 7
21 ESCR-Net. The Right to Work and Workers’ Rights. Retrieved October 22, 2018 from https://www.escr-
net.org/rights/work.
treatment between men and women in relation to their right to work.” 22
ICESCR guarantees as well the right to safe and healthy working conditions,
equal opportunity for promotion, and provides for “rest, leisure and
reasonable limitation of working hours and periodic holidays with pay, as well
as remuneration for public holidays.”23

The work itself must be “decent,” meaning that it respects workers’ physical
and mental integrity, and respects their human rights in terms of work safety
and remuneration. The remuneration should be enough so that individuals
are able to earn “a decent living for themselves and their families.”24

In I/A Court H.R., Juridical Condition and Rights of Undocumented Migrants,

Advisory Opinion OC-18/03, 17 September 2003, par. 148-158, the Inter-
American Court of Human Rights has advised that “States are obliged to
respect and ensure the labor human rights of all workers, irrespective of their
status as nationals or aliens,” and “should not allow private employers to
violate the rights of workers, or the contractual relationship to violate
minimum international standards and that work should be a means o
realization and an opportunity for the worker to develop his aptitudes,
capacities and potential, and to realize his ambitions, in order to develop
fully as a human being.”25

(3)The Right to Form and Join Trade Unions

International human rights law protects the right to form and join trade
unions, and protects the unions’ right to function freely without restrictions
other than organization rules, regulations “prescribed by law and which are
necessary in a democratic society in the interests of national security or
public order,” and limitations necessary to protect others’ rights.26

Workers have the right to associate with one another and bargain
collectively for improved working conditions and living standards.

22 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/ citing CESCR, General
Comment No. 18, par. 13.
23 Ibid. ECESCR, Art. 7
24 Ibid.
25 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/
26 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/ citing ICESCR, Art. 8(1)
They have the right to form and join a trade union of their choice,
and trade unions have the right to form national or international
groupings. Workers have the right to strike, as long as it is in
conformity with national laws.

In Confederation of Swedish Enterprise v. Sweden, Complaint No. 12/2002,

Merits, 15 May 2003, par. 29, ESCR noted that “The decision to join a trade
union should be the workers’ independent choice, exercised free from
influences that constrain their freedom to make a decision.”27

However, the exercise of the worker’s right to Form and Join Trade Union,
particularly in staging a strike, is not without limitation. The ICESCR protects
worker’s right to go on strike, as long as the strike conforms to the legitimate
requirements of the relevant State’s laws. 28 In Enerji Yapi-Yol Sen v. Turkey,
no. 68959/01, ECHR 2009, explained, that the State’s ban preventing public
employees from participating in a national strike to support collective
bargaining was a violation of the freedom of assembly and association. The
complete ban on public employee’s right to strike was too broad but noted
that the right to strike was not absolute and may be subject to certain
restrictions.29

Thus, it can be said that the Collective worker rights cannot be subject to
restrictions by States other than those prescribed by law and necessary in a
democratic society in accordance with national security interests, public
order, or for the protection of the rights and freedoms of others.30

Connected to these declared rights of the workers, UN Committee

on Economic, Social, and Cultural Rights’ General Comment 18 31

27 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/
28 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/ citing ICESCR, Art. 8(1)(d).
29 International Justice Resource Center. Economic, Social and Cultural Rights. Retrieved October 22, 2018 from
https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-rights-2/
30 ESCR-Net. The Right to Work and Workers’ Rights. Retrieved October 22, 2018 from https://www.escr-
net.org/rights/work.
31United Nations Human Rights Office of the High Commissioner. General Comment 18. Retrieved October 22,
2018 from https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2fGC
%2f18&Lang=en.
provided that it also includes the following interrelated and
essential elements:

 Availability. States must ensure the existence of tailored services to

help people to identify employment opportunities and find work;

 Accessibility. The labour market must be open toeveryone under the

jurisdiction of State parties. Access to work involves three key
elements: (1) non-discrimination, (2) physical accessibility, and (3)
information accessibility. Discrimination in access to and continuation
of employment is prohibited. States must ensure that reasonable
accommodation is made so that work places are physically accessible,
particularly for persons with physical disabilities. Everyone has the
right to seek, obtain and impart information on employment
opportunities;

 Acceptability and quality. The right to work comprises several

interrelated components, including the right to choose and accept work
freely, just and favourable conditions of work, safe working conditions,
and the right to form trade unions.

SPECIAL TOPICS OF BROAD APPLICATION32

1. Women and the right to work

Article 3 of the Covenant prescribes that States parties undertake to “ensure

the equal right of men and women to the enjoyment of all economic, social
and cultural rights”. The Committee underlines the need for a
comprehensive system of protection to combat gender discrimination and to
ensure equal opportunities and treatment between men and women in
relation to their right to work by ensuring equal pay for work of equal value.
In particular, pregnancies must not constitute an obstacle to employment
and should not constitute justification for loss of employment. Lastly,
emphasis should be placed on the link between the fact that women often
have less access to education than men and certain traditional cultures
which compromise the opportunities for the employment and advancement
of women.

2. Young persons and the right to work

32 General Comment No. 18

Access to a first job constitutes an opportunity for economic self-reliance and
in many cases a means to escape poverty. Young persons, particularly young
women, generally have great difficulties in finding initial employment.
National policies relating to adequate education and vocational training
should be adopted and implemented to promote and support access to
employment opportunities for young persons, in particular young women.

3. Child labour and the right to work

The protection of children is covered by article 10 of the Covenant. The

Committee recalls its general comment No. 14 (2000) and in particular
paragraphs 22 and 23 on children’s right to health, and emphasizes the need
to protect children from all forms of work that are likely to interfere with their
development or physical or mental health. The Committee reaffirms the need
to protect children from economic exploitation, to enable them to pursue
their full development and acquire technical and vocational education as
indicated in article 6, paragraph 2. The Committee also recalls its general
comment No. 13 (1999), in particular the definition of technical and
vocational education (paras. 15 and 16) as a component of general
education. Several international human rights instruments adopted after the
ICESCR, such as the Convention on the Rights of the Child, expressly
recognize the need to protect children and young people against any form of
economic exploitation or forced labour.

4. Older persons and the right to work

The Committee recalls its general comment No. 6 (1995) on the economic,
social and cultural rights of older persons and in particular the need to take
measures to prevent discrimination on grounds of age in employment and
occupation.

5. Persons with disabilities and the right to work

The Committee recalls the principle of non-discrimination in access to

employment by persons with disabilities enunciated in its general comment
No. 5 (1994) on persons with disabilities. “The ‘right of everyone to the
opportunity to gain his living by work which he freely chooses or accepts’ is
not realized where the only real opportunity open to disabled workers is to
work in so-called ‘sheltered’ facilities under substandard conditions.” States
parties must take measures enabling persons with disabilities to secure and
retain appropriate employment and to progress in their occupational field,
thus facilitating their integration or reintegration into society.

Migrant workers and the right to work

18.The principle of non-discrimination as set out in article 2.2 of the

Covenant and in article 7 of the International Convention on the Protection of
the Rights of All Migrant Workers and Members of Their Families should apply
in relation to employment opportunities for migrant workers and their
families. In this regard the Committee underlines the need for national plans
of action to be devised to respect and promote such principles by all
appropriate measures, legislative or otherwise.