POLICY AND PRACTICE NOTE

Rights in Recession? Challenges for Economic and Social Rights Enforcement in Times of Crisis
By IGNACIO SAIZ Abstract
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The global economic crisis poses a severe threat to economic and social rights, but it is also an opportunity to rethink how we hold states accountable for their fullment. Now more than ever, the human rights movement needs to articulate vigorously the fundamental principles that cannot be rescinded even in times of recession and show how these should guide policy responses to the crisis. This involves intensifying efforts to identify new methods and venues through which to scrutinize governments compliance with their obligations to full economic and social rights. The crisis is also an opportunity to rethink the role of the state in regulating the creation of wealth and redistributing its benets towards the universal realization of economic and social rights. The transnational impacts of the crisis highlight the need to frame accountability in global terms, and to assert more vigorously the notion that states responsibilities to respect, protect, and full economic and social rights do not stop at their national borders. As responses to the crisis have shown, the progress made in advancing the legal justiciability of economic and social rights has not been matched in the arena of politics and public policy. Bridging this gap will involve releasing the still-latent potential of economic, social, and cultural rights advocacy as a powerful tool for social mobilization and transformation.

Keywords: accountability; development; economic and social rights; economic crisis; law and policy; transnational obligations

Introduction The last two decades have seen extraordinary progress in the recognition of economic, social, and cultural rights (ESC rights). Fifteen years since the international community reafrmed the indivisibility and equal importance of all human rights at the UN World Conference on Human Rights in Vienna, a range of new instruments have been adopted for the legal justiciability of ESC rights internationally and regionally, most recently the Optional Protocol to the International Covenant on Economic, Social and
Journal of Human Rights Practice Vol 1 | Number 2 | 2009 | pp. 277 293 DOI:10.1093/jhuman/hup012 # The Author (2009). Published by Oxford University Press. All rights reserved.

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Cultural Rights (ICESCR).1 ESC rights have also been enshrined in national constitutions, giving rise to an impressive body of case law in countries across the globe.2 These victories reect the growth of a diverse and vibrant movement for economic and social rights over the same period. Numerous organizations have been established at the national and international levels to work against specic violations of economic and social rights, while mainstream human rights organizations have expanded their missions to address the full range of human rights.3 The language and framing of human rights has also increasingly characterized the work of development practitioners and social justice activists. In practice, however, ESC rights remain to a large extent paper promises. Pitifully slow progress has been made in eradicating long-standing patterns of deprivation and inequality. Sixty years ago, the signatories to the Universal Declaration of Human Rights envisioned the advent in their lifetime of a world in which all human beings enjoyed freedom from want as well as freedom from fear. They would surely be appalled to learn that in the world of the twenty-rst century, one person usually a child under ve dies of starvation every 3.6 seconds and that every day some 300 million children still go to bed hungry (UNICEF, 2009). Although increasingly afrmed in principle, ESC rights have remained stubbornly difcult to enforce in practice. Despite the development of international legal mechanisms and a stream of ground-breaking court adjudications, political accountability of governments and other economic and social policy-makers remains elusive. At both the national and international level, economic and social rights are still far from being guiding principles of public policy, particularly in the areas of governance where they are most relevant, such as poverty reduction, health, housing, education and other forms of social protection. While judges in some jurisdictions have become increasingly sensitive to economic and social rights claims, political decision-makers in most countries remain wilfully oblivious to their economic and social rights obligations. These are rarely invoked or perceived as being of relevance to the task of economic and social policy-making.
1 The Optional Protocol to the ICESCR, adopted by the UN General Assembly on 10 December 2008, allows for individual complaints of alleged violations of ESC rights to be heard by the Committee on Economic, Social and Cultural Rights (CESCR), the UN body which monitors compliance with the Covenant. The Optional Protocol will be open for signature in September 2009 and will come into force once 10 states have ratied it. See Ofce of the UN High Commissioner for Human Rights: http://www2.ohchr.org/english/bodies/ cescr/. For a compilation of worldwide case-law, see the ESCR-Net Case-law Database: http://www.escr-net.org/caselaw/. For example, the International Network for Economic, Social and Cultural Rights includes 165 national and international organizations working for ESC rights across the globe. See http://www.escr-net.org/members/.

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Even where progressive legal decisions have come down on the side of those whose rights have been denied, they have often failed to translate into the actual policy changes required to restore the victims rights. For example, in 2008, eight years after a ground-breaking South African Constitutional Court decision upheld her right to housing, Irene Grootboom died homeless and in the same conditions of destitution which had led the court to nd in her favour (CCSA, 2000; Mail and Guardian, 2008). Little is reported to have changed for the community in which she lived and millions of South Africans continue to live in informal settlements in deplorable conditions (Wickeri, 2004). Her case is rightly heralded as an emblematic afrmation of the justiciability of economic and social rights. But it also highlights the chasm that exists between legal recognition and political enforcement.
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The Economic Crisis: a Threat and an Opportunity The absence of political accountability for economic and social rights has become all the more glaringly apparent in the context of the current economic crisis. The current global economic downturn, coming at the conuence of the nancial, food and fuel crises of 2008 and 2009, has potentially devastating implications for the realization of economic and social rights. What began as a nancial crisis is rapidly turning into a global human rights crisis. The right to work of millions of people is threatened by the estimated loss of some 50 million jobs between 2007 and the end of 2009 as a result of the crisis, as well as by depressed wages and increasingly insecure working conditions (ILO, 2009). The right to food is threatened as increased poverty obliges people to lower the quantity and quality of their diet, with the total number of malnourished people estimated to rise by 44 million in 2008 (World Bank, 2008). A measure of the threat to the right to health is that 400,000 more infants are predicted to die each year as a consequence of the crisis (UNESCO, 2009). The right to education particularly that of girls is threatened as families can no longer afford the direct and indirect costs of sending their children to school, requiring them instead to carry out domestic or paid work (ILO, 2008). The combination of massive job losses, declining remittances from migrant relatives abroad, and the loss of homes and savings has pushed millions of families in the developing world into a downward spiral of poverty and deprivation whose effects could last for generations (IOM, 2009). Falling tax revenues threaten to reduce the already meagre funds devoted to social protection programmes in many developing countries, depriving the unemployed, sick, and elderly of essential safety nets (ILO, 2008). As those least protected in the labour force and most heavily burdened in the home and family, women will bear the brunt of these impacts. Civil and political rights have also been at risk in countries where xenophobic scapegoating has

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fuelled discrimination against migrant workers and where anti-crisis protests have been met with violent repression (Amnesty International, 2009). Yet despite the obvious human rights dimensions of the crisis, human rights have barely gured in the diagnoses or prescriptions proposed by the international community. The outcomes of the G20 Summit in London in April 2009 and subsequent inter-governmental conferences recognize the human dimensions of the crisis but not the need for human rights-based responses to it (G20, 2009; UN-GA, 2009b). The scal stimulus packages and other anti-crisis measures being taken by many governments are rarely being interrogated or scrutinized from a human rights standpoint. The lack of reference to governments economic and social rights obligations suggests that these are seen as derogable in times of crisis, a luxury only permissible in times of plenty. For all the progress made in normative recognition of ESC rights, the response to the crisis reveals that these rights are still treated by many if not most governments as mere rhetorical aspirations rather than binding principles of public policy. Nor have states been actively challenged to account for what they are doing to attend to the ESC rights implications of the crisis. Human rights analysis has generally been absent from mainstream public debate around the origins and impacts of the crisis and the solutions to it. Few human rights advocates have been present at the international forums convened by the UN on the development impacts of the crisis, or at the UN Human Rights Councils special session on the human rights implications of the crisis in February 2009. Although expressions of concern have recently begun to emerge (ESCR-Net, 2009), including pronouncements by UN human rights mechanisms (OHCHR, 2009), economic and social rights have been marginal to the discussion precisely when they are most at risk. This is no time for economic and social rights advocacy to go into recession. The economic crisis has exposed the bankruptcy of values by which we have chosen to order our societies. It has therefore opened the space for debate about principles: the principles which should underpin our economic order; the principles guiding the regulatory role of the state; and the principles on which institutions of international economic governance should be based. We must seize the opportunity to put human rights at the centre of these debates, and the human being and respect for their human dignity at the centre of policy responses. Given the very real threat that states will see the crisis as a further license to ignore their economic and social rights obligations, the human rights movement needs to be in a position to advocate all the more vigorously for their enforcement at the current juncture. This means articulating clearly the fundamental principles that cannot be rescinded even in times of recession, and which if realized in policy as well as in law can help to shape new models of social and economic interrelation within and between states. The

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crisis provides a potential opportunity, therefore, to bridge the gap between legal justiciability and political accountability. Doing so involves confronting some of the long-standing challenges the movement has faced in enforcing economic and social rights. These include the challenge of translating the abstract normative principles of international law into an ethical point of reference in the political arena and making them operational in day-to-day public policy-making. The crisis also demands that we insert human rights more actively in debates around governance at the national and international level, and help to shape new visions of the state and of a rights-fullling international economic order. The current context also prompts us to consider how we can release the still-latent potential of ESC rights advocacy as a powerful tool for social mobilization and transformation. All three challenges involve joining forces with other disciplines and strands of activism, if we are to turn the crisis into an opportunity to revitalize the struggle for economic and social rights. From Principles to Policy Despite being peppered with references to principles, the main outcome documents of key inter-governmental forums around the crisis have barely mentioned human rights, let alone spelt out the economic and social rights principles that are of central relevance to the current context. The draft report of the Stiglitz Commission, a body of experts set up by the United Nations to identify the broad principles that should underlie reforms to the international nancial and monetary architecture, focuses on the principles of legitimacy, credibility, stability, and effectiveness of the international nancial system, but there is no reference to the rights and dignity of the human being as the end goal of equitable and sustainable development (UNGA, 2009a). The draft outcome document of the UN Conference on the World Financial and Economic Crisis and its Impact on Development includes a preambular reference to the realization of human rights as one of the bedrock ethics and values of our common humanity which must also inform our global interactions. But the operative paragraphs make no further reference to human rights nor to governments binding legal obligations, talking exclusively of our responsibility to address the human security challenges that [the crisis] has created and exacerbated (UN-GA, 2009b). Clearly, international human rights law does not contain detailed, readymade prescriptions in the area of nancial, economic, and social policy. Yet it does provide a normative framework of principles that should shape both the substantive goals of public policy as well as the processes through which it is designed, implemented, and assessed. These principles, however, are known to human rights lawyers and practitioners, but still have little resonance beyond the world of human rights litigation. Perhaps this is because principles are often framed in overly legalistic terms, or because to many social and economic policy-makers, human rights are perceived as having

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little more to offer than a list of utopian everyone should an impracticable charter of maximalist demands with little applicability to the day-to-day task of policy-making (Glasius, 2007). We will need to bring a fresh articulation of these principles, together with an understanding of how they can be operationalized, into the arenas of political contestation where decisions around the crisis are being taken, aired, and challenged. A basic starting point is to publicly re-afrm the concept commonplace to human rights activists but alien to most decision-makers that governments have positive duties to full economic and social rights, as well as obligations to respect them (by refraining from deliberate infringement of those rights) and to protect rights against abuses by corporate and other private actors.4 The duty to full requires actively putting in place the conditions and systems necessary for all members of the population to be able to fully exercise and progressively realize their rights. The notion that human rights impose positive legal duties on states to full certain universal economic and social outcomes has been consolidated in case-law since the 1990s, but has been increasingly politically contested over the same period, running counter as it does to the imperatives of globalization and the trend towards a reduction of the states role in social welfare provision (Fredman, 2008). Nevertheless, the crisis has laid bare the shortcomings of the minimal state model, and so has opened a window of opportunity to reafrm a more expansive and indivisible range of state obligations to realize ESC rights. Secondly, international human rights law contains a series of more specic principles that should form the ethical framework of any stimulus packages and other short- or long-term measures adopted in response to the crisis. Governments have an immediate obligation to prioritize the achievement for everyone of certain minimum levels of rights enjoyment essential to survival and a life with dignity. So, for example, efforts and resources must be directed as an immediate priority to the maintenance and strengthening of programmes aimed at ensuring that children survive beyond their fth birthday and are able to complete their basic education; that women do not die in the context of pregnancy or childbirth; and that basic social protection programmes exist for the elderly and unemployed (UN-CESCR, 1999b). Meeting these minimums core obligations should trump all other policy considerations. As a duty of immediate priority, the state faces a very high burden of justication if it claims it cannot meet these obligations due to lack of resources. In the current context, this obligation implies ring-fencing budgets to ensure that essential goods and services are universally available and accessible, and taking steps to remove the barriers preventing poor and
4 This typology, rst proposed by Asbjorn Eide, has been applied and developed over the years by the UN-CESCR in its General Comments. See for example General Comment 12, The Right to Food, para 15 (1999).

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disadvantaged groups from achieving minimum levels of rights enjoyment, for example by eliminating health or education fees and introducing cash transfer schemes. Even in the context of declining growth, states must generate and assign the maximum resources available to the progressive fullment of economic and social rights, moving forward as swiftly as possible towards their full realization and avoiding deliberately retrogressive measures (UN-CESCR, 1999b). While this principle appears to be premised on the assumption of steadily increasing economic growth and may therefore seem unduly stringent in the context of an economic downturn, it seeks to set a very high threshold of scrutiny for any decision that results in a deliberate retreat from the existing levels of protection (Fredman, 2008). In periods of limited growth, progressive and effective taxation systems are all the more essential to mitigate the possible impact on public revenues, guaranteeing the resources needed for social protection programmes and ensuring equitable redistribution of the existing resources. Where the decline in economic growth and the shortfall in projected tax revenues depletes resources available for social spending essential to meet core obligations and ensure progressive realization, the responsibility is triggered to marshal the necessary resources both internally and through increased international cooperation and assistance (UN-CESCR, 1999b). The principle of non-discrimination, central to human rights law, must be articulated and understood as promoting substantive equality in the enjoyment of rights and not simply the proscription of arbitrary differentiation between groups (UN-CESCR, 2009). In the context of the crisis, it requires taking positive steps to guard against its disproportionate impacts on women, indigenous people, and other systemically disadvantaged sectors of the population, as well as adopting targeted measures to lift the barriers to access of basic goods and services that deny them full equality. It also requires assessing in advance the likely differential impacts of the anti-crisis packages put in place to ensure these benet the most disadvantaged and vulnerable communities. Human rights standards are also of relevance to the processes by which anti-crisis measures are adopted, not just to their goals and substantive content. They require that policies are designed, implemented, and evaluated in a manner that ensures transparency, full participation (including of women), and the provision of mechanisms for accountability and redress. None of the duties outlined above are derogable in times of crisis, and they are universally applicable to all states regardless of their level of resources or economic development. The deterioration in the global economic context is therefore no justication for states whatever their level of income to compromise on their fundamental human rights obligations. In such times it is all the more important that states guarantee minimum essential levels of these rights; take deliberate measures targeted at the most vulnerable; avoid

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measures that are retrogressive or discriminatory; and orient public policy towards the progressive realization of the rights of the whole population through the equitable distribution of available resources. The Challenge of Monitoring the Duty to Full Beyond simply articulating the principles that should inform decision-making around the crisis, the challenge is to assert how these abstract normative principles can be made operational in concrete settings. While signicant progress has been made within the human rights movement in giving these principles conceptual content, the current context demands that we intensify efforts to develop methods for assessing when they are breached or complied with in practice. This is all the more critical in order to be able to monitor the ongoing human rights impacts of the crisis and of the measures states take in response. Monitoring and giving esh to the principles associated with state obligations to full ESC rights requires inter-disciplinary tools of analysis with which human rights advocates are generally less familiar. For much of the last 15 years, the human rights movement has tended to concentrate on monitoring violations of respect and protect obligations of ESC rights, such as forced evictions or institutionalized discrimination in employment, education, or housing. By working outwards from the most egregious and clearly identiable violations, ESC rights advocates have been able to lay to rest the argument that these rights lacked the determinacy and dened content necessary for legal adjudication and enforcement as rights. However, the comparatively little attention given to identifying violations of the obligation to full has undermined the ability of the human rights movement to address more systemic public policy failures that lead to violations of economic and social rights that are even more widespread, but which go unpunished because of the greater difculty of pinning down who is accountable for what (CESR, 2009). It is only more recently that economic and social rights advocates have begun to confront the challenges of monitoring accountability to the duty to full. Fullment obligations are more resource dependent, and so require quantitative methods to assess whether they are being realized progressively and whether resources are being generated, assigned, and spent in line with human rights priorities (CESR, 2008). Monitoring the obligation to full also requires far deeper engagement in social policy analysis and familiarity with the tools and frameworks developed by economists and other social scientists. Interdisciplinary collaboration has enabled human rights activists to analyse, for example, the adequacy of steps taken to combat maternal mortality or primary school incompletion, in order to understand when these can be attributed to a failure to full the right to health or education. The work of the Center for Economic and Social Rights is part of a growing body of cross-disciplinary initiatives across the globe exploring the use of such methods for holding governments accountable to their positive

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ESC rights obligations. These include developing indicators and analytical frameworks for monitoring fullment of economic and social rights, as well as tools for human rights budget analysis (Fundar et al., 2004; Fukuda-Parr et al., 2008; IACHR, 2008; OHCHR, 2008a; Riedel, 2008). These methodological innovations are not intended to reduce advocacy for ESC rights accountability to an exclusively technical exercise. They complement rather than replace long-standing tools of human rights advocacy such as qualitative analysis, events-based documentation, and narrative testimony.5 But they expand the toolkit for monitoring the fullment of economic and social rights at a time when this dimension needs most scrutiny. Building capacity in the use of such tools can arm human rights activists to actively interrogate the policies being put in place to respond to the crisis, through forums for public deliberation that are being created at the national level in many countries in the aftermath of the crisis. At the international level, several mechanisms for monitoring the impacts of the crisis are under discussion, which may offer new possibilities for greater scrutiny and accountability for economic and social fullment. These include the UN Vulnerability Monitoring and Response Mechanism and the creation of a Global Economic Coordination Council, a high-level organ of the UN tasked with independent coordination and oversight of matters of global economic policy, proposed by the Stiglitz Commission (UN-GA, 2009a). The 2010 milestone in the Millennium Development Goals (MDG) review process also offers entrypoints for holding governments and the international community accountable for efforts to progressively realize rights in a context of the economic downturn (OHCHR, 2008b). Replenishing the toolkit for monitoring the full range of ESC rights violations takes on renewed urgency as human rights advocates prepare test cases to be brought before the new international complaints mechanism created by the Optional Protocol to the ICESCR. The threat to accountability for ESC rights posed by the current crisis should serve to galvanize the campaign for ratication of the Optional Protocol and for the new United States administration to ratify the Covenant itself. Its responsibility to do so is heightened by the predominant role of the US nancial system in the creation of the crisis, and by the harm done to the indivisibility and integrity of the international legal framework by the US longstanding refusal to adhere to the ICESCR and other key international treaties on economic and social rights.6
5 For a compelling example of economic and social rights reporting which combines innovative tools of quantitative analysis with narrative testimony giving primacy to the voice and dignity of those living in deprivation, see Mander (2008). The United States has signed but not ratied the ICESCR. It is also one of only two UN member states not to have ratied the UN Convention on the Rights of the Child, which contains extensive provisions on childrens ESC rights.

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Rethinking the State While in the short term the economic crisis poses a serious threat to accountability for ESC rights, over the longer term it also offers an unprecedented opportunity for the human rights community to become more actively engaged in rethinking the role of the state in economic and development policy. The near-collapse of the nancial markets and the ensuing economic crisis has brought in its wake the collapse of a number of assumptions that have been dominant for decades in international policy-making regarding the respective roles of the state and the market in promoting human development. The outcome document of the UN Crisis Conference (UN-GA, 2009b) is evidence of a growing consensus that long-standing free-market orthodoxies of deregulation, liberalization, and privatization, far from delivering on their stated goal of promoting human welfare and economic development, have entrenched global poverty and exacerbated inequalities between and within countries. These inequalities are among the structural causes of the current crisis. Analyses of the origins of the crisis have pointed to the predictable unsustainability of a system which generated widening inequalities of income between those able to exploit the nancial markets and those who have seen their wages stagnate, as well as ever deepening trade imbalances between states (ILO, 2008). The crisis has laid bare the myth that giving free rein to the market will, in itself, promote economic growth and that increasing aggregate wealth will bring development benets to all. The absence of effective regulation of the market has not only failed self-evidently to promote economic growth and sustainable development, but also has effectively led to a redistribution of wealth towards a privileged minority within the nancial and corporate sector, while doing little for the billions still condemned to live in poverty. A related fallacy exposed by the crisis is the traditional ideological objection that state intervention in the workings of the globalized economy is harmful to growth and should be avoided at all costs. This notion was punctured with no small irony as governments rushed to bail out their ailing banks and businesses. The size and speed of the billion-dollar safety nets provided to the nancial sector have been in marked contrast to the dearth of social protection mechanisms for ordinary people affected by the crisis. The bail-outs have also dwarfed the nancial commitments made by governments in recent years to the fullment of the MDG (Oxfam, 2008). Whether this marks the death-knell of free-market capitalism or whether we are simply living through one of its periodic moments of re-accommodation, it is uncontestable that the abdication of state responsibility for social protection, regulation, and redistribution has been at the root of the current crisis. The crisis therefore offers an unprecedented opportunity for human rights organizations to play a role in revisioning the

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rights-fullling state, placing regulation and redistribution at the centre of its functions, and ensuring that the new global economic architecture that emerges in the coming years is based on the respect, protection and fullment of ESC rights, as well as civil and political rights. The mainstream human rights movement has traditionally remained agnostic on the question of whether any particular economic system or political order is more inherently conducive to the realization of economic and social rights than any other (UN-CESCR, 1999b). In the early post-Cold War days when economic and social rights re-emerged on the human rights agenda, this agnosticism was a tactically important defence against the charge that ESC rights were ideologically partisan. However, 20 years on from the end of the Cold War, it may prevent human rights advocates from gaining an effective political voice at this crucial juncture. While human rights may not dictate a specic model or pathway to sustainable development and the realization of economic and social rights, any restructuring of the global economic order that emerges from the current discussions must clearly be evaluated against its capacity to deliver on the range of principles outlined earlier. Human rights must be concerned with how wealth is created and distributed. The responsibility to protect economic and social rights necessitates reining in the pursuit of prot and playing a vigorous role in the regulation of the market, while the responsibility to full requires redistributive allocations through an effective, transparent, and progressive taxation system aimed at redirecting the available resources to the universal and progressive fullment of economic and social rights. Just as the retreat of the state in the 1990s prompted the quest for greater accountability of non-state and supra-state actors, so the return of the state demands that we strive harder to hold governments accountable for their role in regulating the market and redistributing resources, as essential means of honouring their positive obligations to full economic and social rights. The failure of the orthodox free-market model to bring about the promised development outcomes has created an environment in which the ethical arguments for a rights-fullling state once seen as utopian are now backed up by strong instrumental ones, which see the reduction of inequality and major investment in health and education as a crucial means of boosting economic recovery (Watkins and Montjourides, 2009). There are opportunities here for alliances with heterodox economists whose work to devise alternative models of economic and social development is now moving from the margins to the mainstream as a result of the crisis (Balakrishnan et al., 2008). Globalizing Accountability If the current crisis highlights the scope for greater scrutiny of state obligations to full economic and social rights, it has also made manifest the need and potential for a profound shift in mindset around transnational human rights obligations that is, the obligations of wealthier states to

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respect, protect, and contribute to the fullment of economic and social rights beyond their borders. There is a serious risk that the current crisis will serve as a pretext for richer states to cut back on their development assistance. Yet international cooperation is all the more vital in this context, as many countries will rely on external aid to guarantee delivery of core services such as health, education, and sanitation. Developing states do not have the scal space necessary to put in place the kinds of stimulus measures seen in the north, and will be increasingly reliant at this time on development assistance to enable them to introduce the counter-cyclical measures necessary to combat the effects of the crisis and spur recovery (World Bank, 2009). That international assistance is an obligation, not an act of charity, must be emphasized in a context where the costs of the economic crisis are being borne disproportionately in the south, despite having originated in the richer countries. The obligation to provide international assistance and cooperation, both economic and technical, to assist poorer states with the realization of ESC rights is grounded in international treaties such as the UN Charter and ICESCR.7 Although legally well founded, this obligation is politically contested and very far from being understood in practice as a binding legal basis for current development cooperation policy, still seen by most donor states as an act of discretion, largesse, or enlightened self-interest. Both the G20 Statement (G20, 2009) and the outcome document of the UN Crisis Conference (UN-GA, 2009b) speak of the responsibilities that the most powerful economies have towards developing countries, but neither document grounds this responsibility in any international legal obligation. Nevertheless, the renewed commitment made in the June summit outcome document to a coordinated, comprehensive and global response to the crisis by the international community (UN-GA, 2009a) presents a major advocacy opportunity to inject the notion of trans-national obligations into the international political discourse around the crisis. Donor countries must be pushed to recognize their responsibility to respect, protect, and full economic and social rights beyond their jurisdiction. The obligation goes beyond ensuring that their trade, aid, investment, and foreign policies and that their businesses operating abroad do no harm in the partner country.8 It includes a responsibility of wealthier states to ensure that developing states that are genuinely unable to meet their ESC rights commitments (in particular their minimum core obligations) can count on the international nancial and technical assistance necessary to do so.
7 8 UN Charter, Arts. 55 and 56; ICESCR, Art. 2(1). Policy statements drawn up within the international donor community have recognized a basic duty to do no harm (i.e. to respect and protect human rights), but have not yet articulated an obligation to help full those rights through international cooperation. See for example OECD, DAC Action-oriented Policy Paper on Human Rights and Development, 2007.

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This responsibility falls most directly on states in the greatest position to provide assistance (UN-CESCR, 1999b). In particular, those which have played the most inuential role in creating the conditions which resulted in the collapse of the nancial system should assume a commensurate level of responsibility to lead international assistance efforts. The concept of an international responsibility to full ESC rights will continue to be strongly resisted (ICHRP 2003; Skogly and Gibney, 2007). Yet until it becomes a binding principle of development cooperation, there can be no hope of making poverty history. The scant progress that has been made in progressing towards the MDGs supports the conclusion that only a mass-scale redistribution of resources at the global level would enable all countries to meet their minimum core ESC rights obligations, let alone progress swiftly towards their full realization. Recognizing transnational human rights obligations in the context of the crisis would have profound implications for the scale and nature of international donor commitments. Global scal stimulus packages would be aimed explicitly at helping poorer states meet basic levels of ESC rights fullment and attain their MDG goals. The necessary increase in aid contributions would be framed not only in terms of honouring existing MDG commitments, but as an essential element of redress for the disproportionate harm the crisis has caused in the developing world. The prospect of a radical increase in development cooperation may appear remote and even nave at this time. Certainly, proposals to increase the amount and effectiveness of aid and to nd innovative methods for international nancing would entail signicant reforms to address the shortcomings of the existing aid system (De Renzio, 2009). Nevertheless, in the longer term, this could prove to be a fertile moment in which to plant the notion that rich countries have binding obligations to realize ESC rights beyond their borders. As well as being an important lens through which to evaluate bilateral development cooperation arrangements in the aftermath of the crisis, the notion of transnational obligations should also be a fundamental cornerstone of any reformed international nancial architecture. Proposals for reform of the inter-governmental institutions such as the IMF and WTO have rightly focused on opening up their highly undemocratic governance structures to greater participation from developing countries (UN-GA, 2009a). But the reform agenda must also include how such institutions understand and adhere to their own responsibilities under international human rights law. Despite being clearly bound by international human rights treaties, as institutions made up of government representatives, the IMF and WTO, and to a lesser extent the World Bank, have vigorously resisted assuming any responsibility for ensuring compliance with human rights (Darrow, 2003). The IMF has been deeply discredited for its role in promoting the deregulatory trend that led to the crisis, its failure to anticipate the collapse of the nancial system, and its imposition of restrictive loan conditionalities. Yet

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the IMF and other nancial institutions were entrusted by the G20 leaders with some $850 billion to restore credit, stabilization and growth in developing countries, without any clear guarantees that this will be disbursed in a manner that benets the poorest and is free of the restrictive conditionalities of the past (G20, 2009). It is surely time for conditionalities to be placed on the IMF. If it is to continue to play a leading role in international economic governance, accountability to the full range of human rights obligations must be embedded within its mandate, and these must be asserted as having primacy over any other competing global policy considerations. A Transformative Moment? As the UN crisis conference afrmed, we stand at the threshold of a new era of global scal responsibility and people-centred progress (UN-GA, 2009b). The collective response to this crisis could indeed represent a transformative moment. The framework of economic and social rights can be the ethical stimulus to this transformation. Its far-reaching principles have radical implications for the reordering of relations between the state and the market, and the redistribution of resources within and between states. Indeed, it is perhaps precisely because of their revolutionary implications that human rights principles have been studiously avoided in the international declarations and commitments made by states since the crisis. That the language of human rights has not been more prominently invoked in social movement protests and other civil society activism around the crisis should give us pause for thought. Has the professionalized, court-centric focus of ESC rights advocacy over the last 15 years risked making ESC rights an alienating, legalistic discourse of little relevance to grassroots struggles for social justice or to those coming from other disciplines? There is much to be learned from experiences such as that of the Treatment Action Campaign in South Africa, where litigation strategies combined with social mobilization have brought about policy change (Heywood, 2009). As that campaign powerfully demonstrated, in times of crisis a fresh and bold articulation of the transformative principles of ESC rights needs to be taken beyond the courts and into the legislature, the media and out onto the street if they are to be an effective instrument for accountability, as well as a mobilizing language that speaks to peoples rightful anger and discontent.
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Acknowledgements The author is grateful to Sally-Anne Way and Kevin Donegan for their advice on the drafting of this policy note.

291 Economic and Social Rights Enforcement in Times of Crisis

IGNACIO SAIZ Center for Economic and Social Rights (CESR) Fuencarral, 158 1a 28010 Madrid Spain isaiz@cesr.org

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