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Key Text Strengthening Pro-Poor Law: Legal Enforcement of Economic and Social Rights

Author: K Tomasevski
Date: 2005
Size: 9 pages (54 KB)

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Summary

How can human rights legislation expose and oppose violations of economic and social rights? This paper from the Overseas Development Institute looks at the key lessons that can be learnt from the relatively recent processes of human rights litigation worldwide. It explores the application of human rights legislation in case studies from all over the world. Importantly, the legal enforcement of human rights can support anti-poverty policies, since the poor are more victimised by violations of rights than the rich.

Individual countries' constitutions and laws commit authorities to human rights, but the next step is for these commitments to be put into action. The universality of human rights legitimises and supports international action to facilitate such change. Exposing human rights violations, which portray victims as individuals, can help people understand the obstacles that the poor face. Anti-poverty strategies, relying on statistics, may not evoke the same sympathy.

An analysis of experience of human rights jurisprudence in different situations reveals both strengths and limitations in current practice:

Equal rights legislation aims to provide those who are disempowered with a legal entitlement. Only those rights provided by law can be legally enforced, but legally recognised economic and social rights are few.
A Columbian court recently ruled that constitutional guarantees concerning the rights of the internally displaced had not been translated into governmental policies and budgetary allocations. It illustrated that securing the right to education or health requires extensive and efficient institutional infrastructure which cannot be created overnight. It also highlighted that the task of the Court is to enforce the constitutional obligations of the government.
Protection against harmful development interventions can be achieved through human rights jurisprudence. Yet it is never easy to balance legitimate but conflicting priorities, e.g. environmental vs. economic. The World Bank's global minimum standards help to make such challenging decisions at supra-national level.
The universality of human rights is critical for women. Asserting their equal rights for example makes the customary practice of denying women rights to inherit and own land illegal.

A focus on governmental human right obligations is suited to poverty reduction as it is wide-ranging. Certain constraints and principles must apply.

Rights should not be imposed on people. Education can only be made compulsory when freedom of choice is guaranteed. Public health measures (e.g. vaccination) can only be made obligatory under certain strict conditions.
Access to public services is a right, but the state cannot provide all services to everybody, free of charge. Some taxation is necessary. Provision of services can also be traded, domestically and internationally (e.g. privatisation of water supplies).
Governments' obligations to fulfil economic and social rights should be understood in terms of a ‘progressive realisation’, related to differing stages of development and financial constraints.
However, non-discrimination principles must apply fully and immediately. Legal enforcement of economic and social rights has been successful in opposing gender, race, indigenous or minority status discrimination. Controversy continues over differentiation between citizens and non-citizens concerning economic and social rights.
Human rights obligations do not necessarily prevail over other obligations of the state. The courts are not empowered to address political decisions such as budgetary priorities or areas of health and education needing professional expertise. However, Courts can protect for instance social rights against austerity measures justified by economic crises, as in Hungary.

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Source: Tomasevski, K., 2005, ‘Strengthening Pro-Poor Law: Legal Enforcement of Economic and Social Rights', Human Rights and Poverty Reduction Background Paper, Overseas Development Institute, London
Author: Overseas Development Institute (ODI), http://www.odi.org.uk/