A national human rights institution is likely to encounter a number of challenges in ad-dressing economic, social and cultural rights. It will need to look internally and exter-nally to anticipate and address the obstacles and challenges that may arise.
Internal factors66
The first challenge facing a national human rights institution may be that of increasing the level of understanding and acceptanceof economic, social and cultural rights among its members and staff. They may recognize the importance of the indivisibility and interdependence of all human rights, but be more familiar and experienced in deal-ing with civil and political rights. The national institution will need to develop appropri-ate methodologies and approaches for addressing economic, social and cultural rights, and to allocate priority to their implementation.
Understanding of and commitment to economic, social and cultural rights of them-selves will be insufficient. A national human rights institution will also require the insti-tutional capacity to deal with economic, social and cultural rights, and that will be dependent on the availability of financial resources and staff time. The national institu-tion is likely to have a heavy existing workload and case backlog. Its staff may be insuf-ficiently experienced and trained in the area of economic, social and cultural rights. The institution’s networking with external stakeholders may be undeveloped or ineffective.
It may lack management coordination and planning. These are all factors that will chal-lenge the institution’s ability to protect and promote economic, social and cultural rights.
A national human rights institution will need to define standards, including indicators, benchmarks and targets, relating to economic, social and cultural rights. To monitor these rights, its staff will require a fuller understanding of the dimensions and parame-ters of each right and the related State obligations.67International standards, particu-larly those contained in the International Covenant on Economic, Social and Cultural Rights, will assist them in this. They will need to supplement their skills in investigating individual violations with competency in fact-finding, the collection and analysis of pri-mary and secondary data and the analysis of economic, including budgetary, informa-tion.68
External factors
No national human rights institution can solve all of its country’s human rights problems on its own. The effectiveness of its work on economic, social and cultural rights will re-quire an external environmentthat is supportive and enabling—an effective judiciary, accountable democratic institutions and an engaged and effective civil society. Few, if
66 Text adapted from National Human Rights Institutions at Work: The Role of National Human Rights Commissions in the Promotion and Protection of Economic, Social and Cultural Rights, proceedings of the National Human Rights Institutions at Work Asia Regional Training Programme, organized by the Canadian Human Rights Foundation and the Philippine Commission on Human Rights, Antipolo City, Philippines, 9-14 May, 1999, p.47.
67 "Monitoring and assessing the enjoyment of economic, social and cultural rights" (Module 19), in Circle of Rights: Economic, Social and Cultural Rights Activism: A Training Resource(International Human Rights Internship Program and Asian Forum for Development, 2000), p. 366.
68 See Handbook on Fact-finding and Documentation of Human Rights Violations, D.J. Ravindran, Manuel Guzman and Babes Ignacio, eds., (Bangkok, Asian Forum for Human Rights and Development (Forum Asia), 1994).
any, national human rights institutions will encounter these ideal conditions. A national institution must therefore remain conscious that the political, economic, social and cul-tural environment can inhibit its operating independently and effectively, and obstruct its work for economic, social and cultural rights. The national human rights institution should consider:
■ The level of judicial capacity and independence and their impact on its ability to function;
■ The domestic legislative framework for and international treaty obligations relating to the enforcement of remedies;
■ Strategies to reduce risks that it will be drawn into party political conflicts;
■ Steps to educate the public and civil society about its mandate;
■ How to sensitize the Government, the military and the police to its role and authority.
Societies with recent histories of gross violations of human rights, or where societal transformation is occurring, may also be struggling with a culture of impunity in which individuals consider themselves to be above the law.69A national human rights institu-tion in this kind of society will need to advocate respect by all individuals for the coun-try’s democratic institutions, including the national institution itself.
A national human rights institution may also face conflicting interpretations of human rights, and challenges to the notion of the universality of all rights. In a State that has not yet ratified the key international human rights treaties, the national institution will give priority to promoting the ratification of treaties and their incorporation in domes-tic law. Indeed, a restrictive interpretation of human rights may also affect the Government’s interpretation of the national institution’s mandate, excluding the insti-tution from addressing economic, social and cultural rights issues.
A national human rights institution may also need to address in its promotional activi-ties misconceptions, lack of awareness and shared misunderstanding among the pub-lic, government officials and even the judiciary about the specific nature of economic, social and cultural rights and the State’s obligation to respect, protect and fulfil these rights. It may encounter a public and institutional attitude that access to food, housing, employment and education are welfare issues rather human rights issues, or that eco-nomic, social and cultural issues are aspirational rather than legal. The realization of economic, social and cultural rights may be viewed as unrealistically expensive.
Public opinionmay not accept that there is any deficiency in a country’s performance of its obligations relating to economic, social and cultural rights. The relatively well off seg-ment of society, whether the majority of the population or not, may lack interest in or be prejudiced against marginalized individuals and groups. This segment of society has a disproportionate effect on the public expression of views and disproportionate influ-ence on Governments. Business competition, consumerism and the mass media can contribute to public apathy concerning economic, social and cultural rights.
Even where there is good government and public appreciation of economic, social and cultural rights and obligations, the national human rights institution may encounter dif-ficulty in promoting and protecting them. For example, the State may lack resourcesto address economic, social and cultural rights issues. The national human rights institu-tion will need to understand the legal nature of the progressive realizainstitu-tion of economic,
69 Lullessa Nega Girmachew, "Using national human rights commissions in augmenting the international
social and cultural rights and the implications of obligations concerning these rights for government decision-making about budgets, revenue raising and public expenditure, and inform itself of the Government’s available resources and be in a position to discuss this subject with it.
In addition, legal and judicial gapsmay still inhibit the full realization of economic, so-cial and cultural rights.70Courts may not consider economic, social and cultural rights and social conditions relevant to cases before them. Even when these rights are consid-ered justiciable, the courts may be unwilling to uphold the spirit and intent of the law in addition to the letter. Moreover, courts are often physically far from the people who need them the most, and where they are not, access to the legal system is usually more successful for the wealthy than the poor. The system may fail to deliver justice because of corruption. Low expectations and poor actual results from the courts will affect the public’s confidence in and use of the system, particularly those whose economic, social and cultural rights are being violated and who are in need of protection.
70 Jefferson R. Plantilla, "Promoting economic, social and cultural rights", paper presented to the National Human Rights Institutions at Work: Regional Workshop on Economic, Social and Cultural Rights, 5-10 November 2000, Manila, Philippines.