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I. Topics discussed
The legacy of the Americas regarding economic, social, and cultural rights.
The status of economic and social rights in the inter-American system compared to other rights systems.
Relations between democracy, the state, and economic and social rights.
The subordination of economic, social, and cultural rights to trade in the Americas.
Alternatives available to the inter-American system.
Comments on the social and cultural implications and basis of strengthening the American system.
Challenges to the promotion of economic, social, and cultural rights of women due to the traditional structure of international law and existing institutional arrangements.
Proposals regarding women's economic, social, and cultural needs and rights.
II. Presentations
Peter Leuprecht began by stating that the dichotomy between economic, social, and cultural rights and civil and political rights is an accident of history. We need a global vision of human rights because experience shows that life in dignity is possible only when all human rights are effectively guaranteed.
Mr. Leuprecht read a text from René Cassin, dating back to 1967, showing that the argument that economic rights are an "inferior" category of rights because, according to one view, they are conditional and not justiciable, does not withstand scrutiny.
This global vision of human rights is essential and particularly important in the inter-American context. One of the more positive signs in Europe at present is a return of social rights, for example, in the revised European Social Charter, an amendment protocol to the Charter pertaining to procedure which is not in force, but is implemented by anticipation. There is also a new procedure for collective complaints which will soon enter into force.
An analogy can be drawn between Eastern Europe and Latin America, where neglect of social policy casts doubt on economic policy as a whole and ultimately on the goals and reality of democratic transition. Mr. Leuprecht also recommended the reading of the highly relevant lecture given by Edward Broadbent: "The rise and fall of economic and social rights".
Professor Lucie Lamarche started by looking at the legacy of the Americas regarding economic, social, and cultural rights. In North America, we mistakenly neglect or do not recognize this legacy. The constitutional standards of the other America have very richly defined economic, social, and cultural rights and paradoxically, in this respect, poverty lies in the North. Granted, some of these constitutional norms look rather like preambles; others, however, are readily applicable in the domestic rights systems they pertain to. Finally, only in certain instances are the norms of what many too often take pleasure in calling the programmatic kind.
More recently, however, major changes were introduced in the constitutional arena of the Americas. The changes to the constitution of Peru in 1993 appear inspired by international financial institutions. What will happen in Mexico now that consensus has been reached on the nueva cultura laboral? It is well known that the Mexican constitution contains an impressive bodyof economic and social rights. Chile represents an example of "extreme deregulation" of social, labour, and social security rights, without ever having introduced any significant constitutional changes relating to those rights.
It is the set of all human rights that endows justiciability to the sometimes programmatic economic, social, and cultural rights. The "remedy" dimension too often seems to confine, limit, and determine economic and social rights. On the contrary, there are clear examples of justiciability in this field:
Housing law has become subjected to procedural guarantees and a balance between the right to evict and the recognition of the right to housing.
The application of the non discrimination principle in public housing, as illustrated by a Supreme Court of Canada decision.
The right to legal assistance or aid in divorce cases, the right to a fair and impartial trial, and the Airey decision (a somewhat ancient decision by the European Court of Human Rights).
The prohibition against forced labour and conditioning income replacement payments to compulsory work in public projects: perceptive observations made at the end of the 1970s by the Experts Committee of the European Social Charter.
The protection of linguistic and cultural minorities in education.
Environmental protection and peoples' right to participate in India, which entailed the obligation to consult and hold a public debate according to the interpretation of certain norms of the Indian constitution.
Violence against women and children and the efficiency and need for networks and women's shelters.
The right to food and the right of ownership. Last year, NGOs from Honduras and El Salvador made a strong case at the Geneva Convention Committee for establishing the binding nature of the right to food.
These examples establish the justiciable nature of economic and social rights and determine some of the features ensuring their implementation or protection. There is therefore no reason to worry about the progressive aspect of the states' obligation to respect these rights. A reference to progressiveness is not, in itself, an obstacle since it does not imply that all setbacks are allowed. On the contrary, it means that the state has the immediate obligation of implementing the essential aspects of each of these rights. And, even more importantly, invoking progressiveness in implementation does not undermine the interdependence principle of all human rights.
In recent cases, however, interdependent justiciability has proven to be insufficient. Apprehension regarding the fate of social spaces, social exclusion, and other issues has prompted an "autonomous push" for the justiciability of economic, social, and cultural rights. There are many examples of this at the United Nations: works in progress on additional protocols to the Convention on the Elimination of all Forms of Discrimination against Women, the UN Convention on the Rights of the Child, and the International Covenant on Economic, Social, and Cultural Rights. In these three representative cases, the objective is to include in a complaint mechanism all the rights guaranteed by each instrument. NGOs, and also civil society they represent, consider this to be necessary because they have seen a growing deficit in domestic rights systems with respect to redress for economic and social rights or paralysis in the construction of economic and social rights in other economic and legal systems. These initiatives are designed to slow down the erosion of rights, and defend or build them. Also, there is a growing understanding that international redress mechanisms need to be added to the current landscape.
A second observation concerns the delegitimization of economic and social rights in national territories. Regional and international trade agreements show the legitimization of the commercial nature of several goods and services that historically have been considered to be economic and social rights, in particular health, social security, and education. Are they now rights or goods and services?
A third reason for this autonomous drive is the more political argument regarding the need to counterbalance the states' loss of autonomy and globalization. Other systems, including the European and inter-American regional systems, have chosen a more flexible approach in accommodating this push for justiciability. For example, the European Social Charter leaves each state party the option to commit itself or not to a number of rights it stipulates. A similar provision exists in the Protocol of San Salvador, where only two rights would be justiciable.
In short, the implementation of the protection and promotion of economic and social rights is clearly an international, and not simply regional, issue. Furthermore, a detour into political science is necessary to examine the issue of the subordination of economic and social rights to democratic requirements.
Nobodycan deny that the concept of governance, which appeared in the 1980s, is aimed at creating stable areas for the market economy and guaranteeing leeway in the freedom of citizens and corporations. Governance was introduced to ensure durability to the constitutional state, guarantee civil liberties, create reliable mechanisms for the mediation of private conflicts, see to the provision of basic needs, and, finally, protect the security of the national territory. So, what can be observed here is the withdrawal of the states' commitment to economic and social rights, the privatization of social space, and, indirectly, the entrenchment of the old cliché that economic and social rights are nothing more than "aspirations".
The 1990s, on the other hand, have seen the emergence of the concept of democratic requirement. The neoclassical vision of political scientists considers democracy as a system whereby a number of procedural conditions, such as the changeover of political power between elites, are established.
Today's stable democratic system no doubt guarantees individual freedoms, and transforms economic and social rights into goods and services, except for the basic infrastructure. It is a minimalist concept which one must come to terms with, but the two movements (autonomous push and governance) tend to deprive the human rights system of its economic and social rights component.
The current economic integration initiatives redefine the economic and social rights field. For example, the NAFTA agreement between Canada, the United States, and Mexico includes a parallel agreement on labour cooperation, the North American Agreement on Labour Cooperation, that confines the field of economic and social rights to that of labour from a civil and political rights perspective, and worse still, without even using the language of rights but rather that of principles.
The same applies to the MERCOSUR agreement where recently, the 10th working sub-group presented a "social space" proposal in which, once again, labour law takes precedence. And what will come of the FTAA (Free Trade Area of the Americas)? The Miami Summit Declaration is clear. There is a commitment to ratify all the human rights instruments, including the Protocol of San Salvador. This is the only place where there is a link, at least as a project, between the realms of trade and human rights.
Two approaches are possible to assert economic, social, and cultural rights. First, the Protocol of San Salvador is timid and the inter-American system is a neophyte with respect to economic and social rights. So new instruments need to be created. However, this is an ambitious choice. The second approach consists in examining how the American space can be inspired by the European and United Nations experiences. For example, the International Covenant on Economic, Social, and Cultural Rights has interesting effects with very few roots in terms of conventional legitimacy. Moreover, at a UN Economic and Social Council meeting last year, an important delegation from Latin America tried to open a dialogue with several states: Colombia, Honduras, El Salvador, Mexico — and Canada this year. Is it really necessary to have perfect instruments to open a dialogue?
Should this dialogue be absolutely neglected in favour of a remedy-defining strategy? Will individuals or NGOs have the right to demand remedy? Here again, it would be preferable to call for the interdependence of means rather than of rights.
It would be a mistake to ignore the choice that civil society might make by demanding that the Economic and Social Council, in the context of the inter-American system, take a stand regarding the rights guaranteed by the Protocol of San Salvador, which will eventually enter into force, but also by asserting the interdependence of all of the system's instruments. We must argue for coexistence, avoid the inflated approach claiming that we are paralysed by the structural weaknesses of the existing instruments, and occupy the political space. Thus, we could carry on a dialogue and secure the rapid entry into force of the Protocol in order to use the remedy provision therein. Is civil society ready to commit itself to defining content, by adopting this admittedly modulated implementation approach which nevertheless also includes a hard core?
Civil society must subordinate the democratic requirement to the upholding of economic and social rights with the means it currently has at its disposal.
Mr. Leuprecht mentioned several examples from the European system, including a program of the Council of Europe regarding human dignity and social exclusion, and the discussion at the Council on the recognition of the right to fulfilment of basic material needs.
He also mentioned the observations of the Committee on Economic, Social, and Cultural Rights regarding the second Canadian report on the implementation of the Covenant, which states: "The Committee is concerned that in some court decisions and in recent constitutional discussions, social and economic rights have been described as mere policy objectives of Government rather than as fundamental human rights."
Eduardo Cáceres began his presentation by asserting that regional mechanisms for human rights can be more effective than universal ones, because within limited segments of the globe we can find the cultural foundations of common loyalties, the objective similarity of national problems, and the potential awareness of common interests necessary for the effective operation of multilateral institutions. But there are some long-standing unresolved problems in the American system which cannot be understood without examining the system's historical weakness.
In our region, the usual approach to human rights, taken both by the system and NGOs, ignores the diversity of cultural foundations — as a necessary basis for common loyalties — regarding the idea of rights. It is based on a liberal-individualistic point of view, and denies other approaches that are present in non-Anglosaxon societies, especially in Latin America. In some cases, this recognition of the pluralist foundations of our culture and legal traditions is confined to the question of "minorities" or "indigenous peoples". But the real dimension of the problem concerns relations amongst national societies founded on diverse cultural and political traditions.
The ambiguities and limitations regarding economic, social, and cultural rights discourse and practice in the inter-American system manifest the prevalence of one tradition over others in the defence and promotion of human rights in the Americas.
Social scientists recognize not only the weight of "communitarian" traditions in Latin America, but also the preeminence of social over political citizenship. It was in the field of social struggle that the basic institutions of modern ethics and politics were constructed.
Usually the programs to improve human rights in the continent focus on training authorities and officials, and disseminating educational material on civil and political rights. They avoid entering the field where ordinary people develop their experiences and construct their social institutions, i.e. their ethical values.
The difference between reforming and maintaining the American system lies in the assessment of the consistency of democracy and the democratization process in Latin America. The main problem facing the inter-American system is the strong contradiction experienced by millions of people in Latin America who have seen their precarious rights protection systems eroded in the name of globalization and modernization. Neo-liberalism has attacked social rights as privileges of the state, and as obstacles for progress and social mobility. Moreover, inefficiency and corruption characterized the provision of these rights by the state.
The neo-liberalization of social policies has reinforced clientelism and "caudillismo" in societies where identities, social boundaries, and loyalties are generally weak. In this context, the legitimation of human rights is a major problem. The protection of human rights is founded on a "human rights culture", a coherent set of intuitions related with daily life, whose legitimacy can be gained only through the daily experience of the superiority of a social "life form" based in rights. The legitimation of human rights can only occur in the context of everyday life and for millions of Americans, this is currently nothing more than a struggle to survive. It is crucial to recover an integral vision of human rights and to start solving the problems obstructing the strengthening of protection mechanisms. Enforceability and justiciability are two of the most important issues concerning economic, social, and cultural rights. Briefly, the positions against justiciability are based on the consideration of civil and political rights as "natural", and economic, social, and cultural rights as a social and political construction: the former cheap and negative, the latter expensive and positive, i.e. "interfering".
There are no reporting obligations in the American system on economic, social, and cultural rights. In Peru, NGOs and social organizations have presented alternative reports to the UN Committee on economic, social, and cultural rights and gained the support of the Special Rapporteur who made a very strong statement about the situation in Peru.
We must promote a discussion on the construction of American standards concerning ESCR. Such a process should involve not only states but also civil societies, and powerful but elusive stakeholders such as multilateral agencies and multinational corporations.
In 1998, the process leading to the adoption of the American Declaration on the Rights of Indigenous Peoples will be of singular importance. Despite its weaknesses and ambiguities, this instrument could represent a decisive first step in the recognition of cultural pluralism in the continent. Without this, it will be impossible to effectively promote cultural rights in the Americas.
To summarize, if we want to improve the inter-American system, we must first improve the societies' commitment to the idea of rights as a basis for everyday life. Given our continent's cultural and political traditions, the best way to do this is by reconstructing the concept of economic and social rights.
Kerry Buck stated that her presentation reflected her own views, and not those of the Government of Canada.
She examined the possibilities for promoting women's economic, social, and cultural rights within the inter-American System, the challenges posed by the traditional structure of international law and by existing international and regional institutional arrangements, and gave some suggestions on how to move forward, both conceptually and institutionally.
The split between economic, social, and cultural rights and civil and political rights was a quirk of history due in part to the ideological rift brought about by the Cold War. The American Declaration on the Rights and Duties of Man contains a comprehensive list of both civil and political rights and economic, social, and cultural rights akin to the Universal Declaration on Human Rights. But 21 of the 26 rights stated in the American Convention are civil and political rights formulated in much the same terms as the International Covenant on Civil and Political Rights. The American Convention contains a general provision regarding the duty to progressively realize economic and social rights set out in other documents, but it is mainly a civil and political rights treaty.
To date, the Protocol of San Salvador, an additional protocol to the American Convention, has been ratified by only a few countries and has not yet entered into force. The rights stipulated in this protocol are similar to those in the UN Covenant but their formulation differs greatly. The Protocol does not specify the right to adequate clothing, housing, and standard of living nor does it include the right to a healthy environment and to special protection in old age.
This protocol has less status even than the International Covenant on Economic, Social, and Cultural Rights. Similarly, the mechanisms that might promote economic, social, and cultural rights are not working well. Two bodies established by the OAS Charter, the inter-American Council for Education, Science, Culture and the Economic and Social Council, which are supposed to set standards, consider reports by States, and make recommendations, could feasibly do valuable work in the area of economic, social, and cultural rights, but they don't.
Human rights norms are deemed to be gender-neutral. But when they come up against structures or imbalances of power between men and women, the systematic nature of discrimination against women, and the absence of women in both domestic and international lawmaking and implementation, they disproportionately reflect the experiences of men and exclude those of women. This is true for all categories of rights, but when it comes to economic, social, and cultural rights, the gap is even greater. At its inception, international law governed relations among States. If international law is considered as the public sphere, then the State's domestic jurisdiction is the private sphere. In the traditional conceptions of international law, the international community did not cross the barrier of State sovereignty. States were immune from international scrutiny. And although international human rights law allows for some scrutiny, it is always subject to political tensions.
This public-international/private-domestic dichotomy becomes even more relevant in regard to women's economic, social, and cultural rights. Economic, social, and cultural rights focus for the most part on substantial problems traditionally left to women: the right to be cared for, fed, housed, nurtured, clothed, healed, and educated. These are descriptions of women's traditional work and what many women in the world still do. This public/private distinction in international law is reflected in domestic law as well. Both of these areas of law recognize a private ground: the household traditionally has been immune from the application of domestic criminal law. Ms. Buck referred to the state's response to domestic violence as an example. Thus, women whose primary locus of activity is in the home, are twice, or even three times, removed from the protection afforded by international human rights law. Because for the most part, economic, social, and cultural rights lie within the unregulated domestic sphere. In general terms, the legally regulated public sphere coincides with the traditionally male activities: the workplace, economics, politics, intellectual and cultural life.
The different legal treatment of civil and political rights, on the one hand, and economic, social, and cultural rights, on the other hand, mirrors this public/private distinction. Traditionally speaking, first generation rights are men's rights and social rights are women's rights. No wonder national and international norms, procedures, institutions, and remedies regarding first generation rights are far better developed. Within the realm of economic, social, and cultural rights protection, women's position of subordination has been exacerbated rather than redressed. For instance, cultural and religious rights reinforce this public/private dichotomy: culture and religion are seen as spheres protected from legal regulation and within those spheres, traditional religions discriminate against women and perpetuate this imbalance.
Ms. Buck outlined the three barriers preventing women from benefitting from the protection afforded by international human rights norms. First, there is state sovereignty where a sphere of domestic jurisdiction, a "domaine réservé", can be invoked to deny scrutiny by the international community of states. The State is viewed as genderless in international law, but there is a gendered stratification embedded in the State. According to the UNDP Human Development Report, the general trend among the OAS member states seems to be a worsening of gender disparities although some progress is observed in gender empowerment. Therefore, the increased decision-making power of women has not translated into actual economic and social benefits.
The second barrier preventing women's access to internationally recognized human rights is the gap between civil and political rights on the one hand, and economic, social, and cultural rights on the other. The third barrier is that certain economic, social, and cultural norms serve to perpetuate the disparities between men and women.
Nevertheless, there have been some positive developments within the inter-American system. First, the absolute sovereignty barrier is gradually dissolving. Membership in the OAS implies a voluntary devolution of power from the state to the OAS and its institutions. For example, in the series of cases involving electoral processes in Mexico, the Mexican government argued that any pronouncement by the Inter-American Commission on this topic was a violation of the principle of non-intervention. The Commission rejected this argument by stating that, as an OAS member, Mexico had consented to allow certain aspects of its internal jurisdiction to be scrutinized. It also invoked Article 16 of the OAS Charter: "Although each state has the right to develop its cultural, political, and economic life freely and naturally, in this free development, the state shall respect the rights of the individuals and the principles of universal morality." So international human rights law can trump peremptory norms and other international norms, constitutional provisions and internal legislation.
Ms. Buck then elaborated on the second development in the inter-American system which allows international law to reach down through the sovereignty barrier, citing the Velasquez-Rodriguez case, where the Commission found evidence of forced disappearances and thereby shifted the burden of proof to the state and imputed state liability even where the violations were perpetrated by non-state actors. The state has a duty to exercise due diligence to prosecute and set up the mechanisms needed to prevent such violations within its territory. The Inter-American Convention On Violence Against Women makes this explicit as well. It considers different areas of violation: violation perpetrated directly by the state but also within the general community and within the home. It says that the state has a duty to exercise due diligence in managing all those spheres.
Developments in recent years in the region have also led to the gradual dissolution of the second barrier, the gap between civil and political rights and economic, social, and cultural rights (ESCR). First, in a report on human rights in Paraguay, the Commission adopted an organic vision of rights that does away completely with the artificial barriers established during the Cold War. This hemispheric vision of the exercise of political rights within the context of a democratic system of government is completed with the requisite development and promotion of economic, social, and cultural rights. Without these rights, the exercise of political rights is severely limited and the very existence of democratic regimes is severely threatened. Although there are difficulties associated with using civil and political rights as a back door route to promote economic, social, and cultural rights, international mechanisms are more receptive, because they have a more substantive case law. Women can use the principles of non-discrimination, the right to life, and the right to political participation to ensure they have a say in their country's economic, social, and cultural development, in economic decision-making, and in defending their right to food and housing. With respect to discrimination and the distribution of social benefits, they can use the American Convention's discrimination prohibition. The European system has a large jurisprudence on this topic whereas the UN system has some initial jurisprudence — which are both useful in the inter-American context. This represents another way to move forward.
With respect to the third barrier, Kerry Buck referred to instances where rights are interpreted in a way that exacerbates discrimination against women. The response lies in a gendered interpretation of human rights norms. She focussed on three examples:
Obligation of states to respect economic, social, and cultural rights (ESCR):
Governments cannot directly infringe a social right: for example by expropriating the land of a subsistence farmer, destroying homes, or evicting squatters without providing an acceptable housing alternative. How do we look at this from a gendered perspective? For instance, alternatives provided could be limited by other legal regimes limiting women's access to property ownership, micro-credit, or compensation. For example, if compensation is paid for a crop loss to the head of the household, and women are doing the farming work, then the primary person suffering the loss does not receive directly any compensation.
Obligation of States to protect ESCR:
Governments must prevent third parties from infringing social rights by, for example, tearing down low-income housing where no alternatives are available or violating workplace health and safety requirements. The gender explanation given for the first level would apply here as well.
Obligation of States to fulfil ESCR:
Governments share a duty to provide food, shelter, health, education, and other necessities to individuals without the means to provide for themselves. From a gendered perspective on the right to food, traditional distribution of food within the family must be considered. For example, pregnant women require greater nutrition than women who are not pregnant. Female children are often the last in the food chain. The Commission has not done much to develop a gendered interpretation of human rights norms.
The following concrete initiatives might be carried out in the inter-American System to respond to women's economic, social, and cultural needs and rights:
Integrate a gendered perspective into the work of the Commission and the Court. The Inter-American Commission of Women could promote this.
Cases represent the downstream by-products of human rights violations and they are dealt with by a necessarily flawed mechanism. Ms. Buck underlined the need for preventive strategies. In the area of economic, social, and cultural rights, work has to be done within and outside the human rights system: revitalizing the economic and social council of the OAS, improving links with the United Nations, the UNDP, and UNIFEM. The international financial institutions' development programs should be examined from this rights and gendered perspective. If actions are undertaken only at the elite level of the human rights system, human rights culture will not change. A complete cultural shift is needed, especially when it comes to the gender perspective. To get at the cultural roots of the problem, it is necessary to work outside the rights discourse.
In the Beijing Platform of Action, there is a whole array of rights-based and non-rights-based responses to women's disadvantages in the economic, social, and cultural arena. Ms. Buck suggested looking at Beijing Conference state reports for ideas and pushing within the inter-American System for a better understanding of the Beijing requirements.
III. Questions and Comments
John Foster, University of Saskatchewan, considers that David Mattas has written one of the most readable and provocative articles on economic and social rights implementation strategies in the 1995 Journal of the International Commission of Jurists. We are in a process of further economic integration in the Americas. Some would say that there are opportunities for the inclusion of labour rights or the protection of the environment or other elements of economic and social rights. What is the strategic perspective of the Canadian Department of Foreign Affairs and International Trade? What is the Department willing to give in this matter? Referring to the Esso case against the Canadian government regarding additives, he asked whether the government had done any assessment of a possible conflict between the proposed Multilateral Agreement on Investment and Canada's commitment to fulfil its obligations under the Covenant on Economic, Social, and Cultural Rights.
Ms. Buck said she was not in a position to give an official answer. However, trade represents one route for the promotion of human rights among a host of strategies used by the Department. She agreed with John Foster that labour and environmental agreements are mere subsets of a wider range of economic, social, and cultural rights. But economic, social, and cultural rights and obligations don't disappear with the side accords. It is up to groups to make sure that these issues are dealt together with trade and development issues. Very often, human rights are dealt within one box, trade and development issues, within another box and never the twain shall meet.
Gloria Pereira-Papenburg, Social Justice Committee, asked Eduardo Cáceres to assess the level of respect for economic, social, and cultural rights by multinational corporations operating in Peru and Jamaica.
Mr. Cáceres referred to the Canadian mining investment boom in Peru. With deregulation, national standards are very low: sometimes the multinationals have higher standards than the States they work in! For example, the standards of Shell Oil in the Peruvian Amazon are higher than in Nigeria, but lower than in the North Sea. No international or inter-American forum exists to define global standards for transnational companies. One of the tasks of the American system should be to create a place to openly discuss investment standards, rights, as well as negotiation mechanisms between States, multinationals, and civil society.
Ms. Lamarche commented on the relationship between trade and human rights: introducing human rights in the field of trade, "trade-related human rights", presents the danger of creating a competing system of interpretation regarding human rights. For instance, under the North American Agreement on Labour Cooperation, the discriminatory practice of imposing compulsory pregnancy tests is under examination. Are we willing to run the risk of ending up carrying the additional burden of proving that a human-rights violation is somehow trade-related each time we are simply looking for cooperation in the fields of trade and human rights? The integration of trade and human rights has profound implications on procedure and interpretation. It involves far more than just hoping that the two solitudes will start working together, which is an absolute requirement. Communication and dialogue do not solve all the difficulties.
Mr. Wright noted that despite their commitment to the universality of human rights, human rights organizations in Latin America put primary emphasis on conditions of abject poverty and discrimination.
Mr. Cáceres answered that if we want universal rights in America, we must construct ways to reach universality: domestic and multinational legal instruments must be enforced nationally and globally. He mentioned that the idea of civil society is very important for the human rights movements and maybe, a global society of the Americas could be constructed in a relation amongst many cultures. He proposed promoting global theoretical and practical discussions on the relationship in our continent between liberalization and human rights.
Madeleine Desnoyers, ICHRDD, remarked that very little was said about the rights of indigenous peoples. When we talk about economic, social, and cultural rights, we very often neglect the cultural aspect. Indigenous rights also involve collective rights. The Draft Declaration on the Rights of Indigenous Peoples, which will be proposed for adoption at the next General Assembly of the OAS, is weaker than some articles of ILO Covenant 169 that several countries have already ratified. She also is concerned about the access indigenous peoples will have to the inter-American system.
François Crépeau, professor at UQAM, deplored the fact that migrants are often not considered to be members of society. The treatment of foreigners in our societies is deemed to be part of the state's "reserved domain". In general, foreigners have limited access to rights and their implementation mechanisms. The underlying principle for this seems to be that an alleged lack of political rights entails a limitation of civil, economic, social, and cultural rights. The treatment of foreigners forces us to question the relation between an individual's contribution to society and his access to rights and to rights protection by the state. What is at stake here is the very definition of citizenship.
Karen Rothschild, Social Justice Committee, stated that one right included in theProtocol of San Salvador was not mentioned: the right to a healthy environment. She asked the panel to what extent is there an incompatibility between this right and the global neo-liberalization project.
Ms. Lamarche stated that indigenous, migrant, and environmental rights relate to the notion of state security. In theMiami Summit Declaration, it is quite clear that there is a security concern regarding the relation between trade and indigenous peoples. She underlined that, according to NAFTA, a migrant is a worker who follows goods or services being exported or transiting from one state to another. Thus, a human being is defined as a follower of goods or services. It is a good example of competing interpretations of rights. In a regional context, environment will have the meaning that the political or quasi-judicial authorities will be willing to give it. However, civil society can show that the environment concerns not so much this or that specific right but rather universality and all areas of human rights. It is partly civil society's responsibility to create a space for an open debate on the environment as a collective and individual right.
Ms. Buck added a few comments regarding trade liberalization and human rights. During the past two decades, trade liberalization has increased; in and of itself, this is neither a good nor a bad thing. The state's role as a service provider is changing: the private sector is taking on a greater role. We have also been developing a much more comprehensive international human rights environmental law regime, as well as new enforcement mechanisms and a new way of integrating these concerns. She considered that the key right now is to bring these various trends together. For instance, with respect to human rights and security concerns, the Department of Foreign Affairs and International Trade has been trying to integrate human rights issues into the UN Security Council deliberations. The Department has also been trying to focus development assistance on some of its political foreign policy initiatives along the line of peace-building.
Erit Yu, Social Justice Committee, expressed concerns about how discrimination will be interpreted by a trade bodyand asked what we can to do if we have multiple interpretations of discrimination. She asked Lucie Lamarche whether she had any alternative.
Ms. Lamarche stated that what Erit Yu called alternatives, she calls compulsory methodology. We now have three concepts: social development, human rights, and trade. She stressed the fact that we have to impose on ourselves, i.e. civil society, a uniform methodology of human rights which is not first about that part of the story that we know best. The case of discrimination before NAFTA is a good example of what she calls compulsory methodology. Never limit yourself to one right without evaluating its interdependence with other rights. Labour standards are another good example. It is about methodology and applying the reality principle to it. We can presume we are all talking the language of human rights but we just have to make sure that it is what we're doing, whatever the forum or whoever we are.
Mr. Leuprecht summarized a few of the main ideas:.
There was a broad agreement on the indivisibility of human rights but economic, social, and cultural rights are still the poor relation within the family of human rights: this applies particularly to cultural rights. In the reality of those who are excluded, downtrodden or living in misery, one sees the factual indivisibility of human rights because what they are deprived of is not just economic or social rights, but of virtually all human rights, and even civil and political rights become extremely theoretical.
Part of the discussion was profoundly philosophical. Underlying the discussion was the concept of human being and how it is reflected in the human rights concept. In the world, or at least in this part of the world, maybe unconsciously, we are thinking more and more in terms of an Homo economicus that overrides other dimensions of the human being.
What is our concept of rights? In the West, we have an increasing tendency to have a very egoistic, petulant, acquisitive approach to human rights: we don't see that human rights are also the rights of others (not just our own). In countries that strongly profess the universality of human rights, very often the treatment of the ‘other', the foreigner, is a denial of the principle of universality.
What is our vision of democracy? The discussion reminded him of what Pierre-Henri Teitgen, one of the fathers of the European Convention on Human Rights, said in 1949 during the debate on the Convention. He spoke about political democracy as a consequence of civil and political rights. But, he said, what we also need is social democracy and therefore, economic, social, and cultural rights.
What is the role of the state? What we call the sovereignty of the state is increasingly eroded. What is in today's world the responsibility of the state? Are we thinking in terms of a minimal state? Does the state have a role to play particularly in the distribution and redistribution of wealth? If the state can no longer perform this function, then it must be a corresponding duty of the international community to ensure a fair redistribution of wealth internationally.
The effects of economic integration on human rights.
Prevention of human rights violations.
Throughout the world, it is important to take human rights out of their box and mainstream them. We are still far from that and one wonders to what extent human rights concerns are present when governments and international organizations are making important decisions. When dealing with problems such as development, it is essential to bring in human rights concerns. All international bodies should be involved and, not least, the international financial institutions.
The role of non-state actors with regard to human rights and among these, multinational companies are obviously important.
The role of civil society. In the field of economic, social, and cultural rights, there still is no strong and really influential non-governmental organization: there is no Amnesty International for economic, social, and cultural rights.
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