Complaints Procedure at the UN overlooks the Poorest.
Anthony Ravlich
Chairperson
Human Rights Council Inc. (New Zealand)
10D / 15 City Rd.,
Auckland City,
New Zealand.
It is very likely the most disadvantaged will be largely overlooked by the complaints procedure for economic, social and
cultural rights (social justice) being discussed at the United Nations which so far has failed to ensure that the core
minimum obligations of these rights are included in the text. In addition New Zealand continues to fail to fully endorse
a comprehensive complaints procedure preferring to be selective as to which rights will apply.
The complaints procedure, called an Optional Protocol (OP), is expected to be approved by the United Nations Human
Rights Council in its session from 31 March to 4 April, 2008 and if passed in its present form will, in my view, fail to
ensure the State's social responsibility to an underclass which has grown considerably since 1991. According to human
rights logic those suffering the most serious violations must be emphasised over those suffering lesser violations
although not excluding the latter. However previous human rights instruments have failed to address the needs of those
in most suffering. The spirit of the International Covenant on Economic, Social and Cultural Rights, which is
essentially egalitarian, born in the Industrial Revolution of the 19th Century and the Great Depression, would be
utterly destroyed as well as the hopes and dreams of billions of people if these human rights are used simply to further
elite interests.
However a positive aspect of draft OP is that it will not only be concerned with the economic, social and cultural
rights of the middle classes but also that of the majority, working class. This reflects the emphasis being placed on
democracy in the foreign policy of the Bush administration. This concession by global elites reflects, in my view, the
concern at the global moral decline of the leading liberal democracies i.e. America and Britain because of their
failures in the Iraq War. Now elite consent for the further pursuit of neoliberalism is insufficient and majority
consent is required. This consent, coupled with the War on Terror, will help provide unity at a time when stability is
threatened by terrorism and demands by political dissidents for social justice.
The present draft Optional Protocol (A/HRC/6/WG.4/2,23/4/07), which deals with social injustices as defined by the
International Covenant on Economic, Social and Cultural Rights (ICESCR), has been under discussion by open-ended working
groups (OEWG) at the United Nations since 2004. An OP will make it possible for individual, groups or organizations
acting on their behalf to seek justice at the international level for violations of economic, social and cultural rights
by submitting complaints to the UN Committee on Economic, Social and Cultural Rights. The adoption of the draft OP will
also provide support to efforts to get greater recognition of economic, social and cultural rights in domestic law and
before courts. When New Zealand acceded to the OP for the International Covenant on Civil and Political Rights in 1989
this was immediately followed by the New Zealand Bill of Rights Act (1990), the New Zealand Human Rights Act 1993 plus a
number of commissions to hear complaints. This suggests it is likely there will be some means of making complaints
domestically for infringements of economic, social and cultural rights once States ratify the OP.
Economic, social and cultural rights (social justice) in addition to civil and political rights (freedom and democracy)
are also part of the Universal Declaration of Human Rights but since the collapse of communism in Eastern Europe in 1989
the former have been marginalized at the United Nations. However, in recent times, with the global concern for the
increasing gap between the rich and the poor and its consequences economic, social and cultural rights are being given
more recognition at the United Nations. In addition to the present draft OP there are the discussions taking place
simultaneously at the United Nations on the right to development which requires both sets of rights. While civil and
political rights deal with individual freedoms such as freedom of speech, non-discrimination and the right to a fair
trial, economic, social and cultural rights are concerned with social responsibility such as the rights to employment,
fair wages, health, housing, education and an adequate standard of living. Unless the State is socially responsible
people are often too poor to access their civil and political rights e.g. have a voice in society or the liberty to
pursue their dreams.
As with other human rights instruments ratified by New Zealand in the past which failed to emphasize the human rights of
the most disadvantaged the present draft OP excludes any reference to core minimum obligations as devised by the United
Nations Committee on Economic, Social and Cultural Rights (see General Comments No. 3 and No. 14). These core minimum
obligations, which deal with some of the worse economic, social and cultural rights violations such as homelessness,
long term unemployment, children in extreme poverty, benefits below the poverty line necessitating the use of food banks
and begging on the streets, would have ensured that an emphasis would be given to the most disadvantaged - those in most
suffering. The United Nations afford States a 'wide margin of appreciation' in their interpretation of human rights
instruments and this also applies to the present draft OP. Typically, in the past, States have used this 'wide margin of
discretion' to 'turn human rights on its head' emphasizing the human rights of the middle classes, followed by workers
and ignoring the increasing growth of an underclass. As a consequence the requirements of neoliberalism take priority
over human rights.
The draft OP could have provided an opportunity to rectify the miserable failures of previous human rights instruments
which failed to stem the rapid growth of an underclass. At present according to Catarina de Albuquerque, the Chair of
the OEWG, 'the proposed text [of the draft OP for ICESCR] draws from existing communication procedures' which strongly
suggests it will be as irrelevant to the most disadvantaged as the other instruments have been especially as the great
majority of States pursue neoliberalism which creates a big gap between rich and poor. International instruments
ratified by New Zealand, which also have an OP or complaints procedure, include the convention on the elimination of
discrimination towards women (1984) and the convention on the elimination of discrimination with respect to race (1972).
While the human rights instruments were also meant to protect the most disadvantaged affirmative action policies saw
increasing numbers of women and Maori entering the bureaucracy and parliament but the underclass increased. The Maori
unemployment rate rapidly rose to 16% (and oscillated around that level for 21 years until recently decreasing to 8%
(now that New Zealand has achieved a low wage economy)). And with respect to women the numbers on Domestic Purposes
Benefit increased considerably from 1984 to the present: from 56,548 in 1985 (Broken Welfare? North and South Magazine,
May 2000) to 93,090 in 2006 (2006 Census, Sources of Personal Income, Statistics New Zealand, Table 37). Also with
respect to the covenant on civil and political rights (1978) much more emphasis was placed on the interests of the
middleclass such as equal pay and non-discrimination with respect to men and women on high wages while the poor,
voiceless and powerless, have been largely ignored. Unlike many other groups the poor are given the opportunity to
promote their views in the mainstream media i.e. newspaper space, or time on radio and television. They are generally
forced to use fringe outlets.
Other major flaws of the draft OP, in my opinion, include failing to ensure human rights education, failing to guard
against retrogressive measures i.e. arbitrarily reducing levels of human rights, and failing to address the right to
development. These issues are fully discussed in my book 'Freedom from Our Social Prisons: The Rise of Economic, Social
and Cultural Rights'* (see below).
A controversial issue at the OEWG is whether States should be able to select the rights they are prepared to be dealt
with by the UN Committee on Economic, Social and Cultural Rights. According to the NGO Coalition for an OP for ICESCR an
OP which would extend to all economic, social and cultural rights in the Covenant (the comprehensive approach) is now
supported by a growing majority of States, including all African, Latin American and Carribean states, as well as the
majority of European and an increasing number of Asian states. However the NGO Coalition states that some states are
continuing to push for the adoption of a so-called 'a la carte' OP, under which states would be able to treat the ICESCR
as a menu of rights and specify which rights they would be willing to accept complaints on. These latter countries
include Austria, Australia, Canada, Denmark, Greece, Ireland, the Netherlands, New Zealand, Sweden, Switzerland and the
United Kingdom and the NGO Coalition has been trying over the past month to encourage these countries to change their
stance or reserve their decision. The 'a la carte approach' allows States to exclude inconvenient rights e.g. the right
to fair wages in a low wage economy.
*A more full discussion of the draft OP can be found in chapter five of my book 'Freedom from our Social Prisons: the
Rise of economic, Social and Cultural Rights' due to be released on May 28, 2008. It is presently being pre sold on the
Lexington Books (Rowman and Littlefield) website as well as other websites.
ends