CHAPTER V

AREAS IN WHICH STEPS NEED TO BE TAKEN TOWARDS FULL OBSERVANCE

OF THE HUMAN RIGHTS SET FORTH IN THE AMERICAN DECLARATION

OF THE RIGHTS AND DUTIES OF MAN AND THE AMERICAN

CONVENTION ON HUMAN RIGHTS

         I. THE REALIZATION OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

              IN THE REGION

          INTRODUCTION

          The Commission has prepared the following report on economic, social and cultural rights in response to the General Assembly's resolution AG/RES. 1213 (XXIII-0/93) which urges the Inter-American Commission on Human Rights ("Commission") to continue "its work in support of economic, social and cultural rights in order to contribute to the development of the member states."

          The underlying premise of this report is the principle set forth in the General Assembly's resolution AG/RES. 1213 (XXIII-093):

That the ideal of a free human being, unfettered by fear or poverty, can only be realized if conditions are established which permit individuals to enjoy their economic, social, and cultural rights, as well as their civil and political rights (emphasis supplied).

          This resolution is itself inspired by the member states' commitment to the principles established in the OAS Charter. Article 33 of the Charter stipulates:

that equality of opportunity, equitable distribution  of wealth and income and the full participation of their peoples in decisions relating to their own development are, among others, basic objectives of integral development.

          Moreover, in article 44(f) of the Charter, the member states agree to encourage:

The incorporation and increasing participation of the marginal sectors of the population, in both rural and urban areas, in the economic, social,  civic, cultural and political life of the nation, in order to achieve the full integration of the national community, acceleration of the process of social mobility, and the consolidation of the democratic system.

          These principles are reaffirmed in the American Convention on Human Rights ("American Convention"), which, in Article 1, obliges the signatory states:

to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition (emphasis supplied).

          Article 26 of the American Convention articulates the principle of progressive development. It states:

State Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

          The American Declaration of the Rights and Duties of Man ("Declaration") sets forth in its Preamble that the American peoples "have as their principal aim the protection of the essential rights of man and the creation of circumstances that will permit him to achieve spiritual and material progress..." The Declaration acknowledges that the initial system of protection it established was one suited to "the present social and juridical conditions, not without recognition (on the part of the American States) that they should increasingly strengthen that system in the international field as conditions become more favorable." The Declaration enumerates a list of civil and political rights as well as economic, social and cultural ones.

          In light of the need to increasingly strengthen the system, the Additional Protocol to the American Convention on Human Rights Concerning Economic, Social and Cultural Rights ("Protocol of San Salvador") adopted by the General Assembly in 1988 signals a further commitment within the Inter-American human rights system to enforce these rights. The Protocol compiles in treaty form principles of social equality and individual rights set forth in earlier human rights instruments, including the OAS Charter and General Assembly Resolutions.[1]  Article 1 of the Protocol of San Salvador establishes that:

The States Parties to this Additional Protocol to the American Convention on Human Rights undertake to adopt the necessary measures, both domestically and through international cooperation, especially economic and technical, to the extent allowed by their available resources, and taking into account their degree of development, for the purpose of achieving progressively and pursuant to their internal legislations, the full observance of the rights recognized in this Protocol.

          Articles 10, 11, 12 and 13 of the Protocol of San Salvador guarantee the rights to health, a healthy environment, to food, and to education respectively. The respect for these rights guarantees basic needs for survival, which in combination with the other rights set forth in the Protocol, such as the right to work (article 6), to just, equitable, and satisfactory conditions of work (article 7), to trade union rights (article 8), to social security (article 9), to the benefits of culture (14), to the protection and formation of families (article 15) etc., create the conditions "whereby everyone may enjoy his economic, social and cultural rights as well as his civil and political rights" (Preamble to Protocol).

          I. THE INDIVISIBILITY OF CIVIL AND POLITICAL RIGHTS, AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS

           The Commission has always recognized "the organic relationship between the violation of the rights to physical safety on the one hand, and neglect of economic and social rights and the suppression of political participation.[2]  Any distinctions drawn between civil and political rights and economic, social and cultural rights are categorical formulations that detract from the promotion and guarantees of human rights.

          Freedom from fear and want necessarily entails the guarantee of civil and political rights.  Through popular participation those who are affected by the neglect of their economic and social rights are able to participate in the decisions that concern the allocation of national resources and the establishment of social, educational, and health care programs.[3] Popular participation, which is the aim of a representative democracy, guarantees that all sectors of society have an input during the formulation, application and review of national policies. While, on one hand, it may be asserted that political participation enforces the protection of economic, social and cultural rights,  at the same time, the implementation of these rights creates the condition in which the general population is able, i.e. is healthy and educated, to participate actively and productively in the political decision-making process.

          The formalities of a democracy through the election of presidents and parliamentarians is not a strong enough foundation to ensure stable and enduring political and economic systems. This is demonstrated by the fact that despite the region's transition to democratic rule over the past decade, there has been  a marked increase in the incidence of poverty  which, in effect, endangers political stability in many of the region's states. For example, in 1980, 41% of the total population in Latin America were living below the poverty level.  By the end of the decade, this number had risen to  more than 45%.[4] 

          Poverty is, in part, a result of a state's inadequate commitment and organization to protect and promote economic, social and cultural rights. As discussed above, the state's failure to guarantee economic, social and cultural rights, also signals a lack of civil and political guarantees. The ability to participate in society comprises civil and political rights, together with economic, social and cultural rights. It therefore follows that without progress in the area of economic and social rights, the pursuit of civil and political rights (which have been attained with great hardship and human sacrifice) will remain merely aspirations for particularly those sectors with the least resources and lowest levels of education.[5] In the final analysis, the consolidation of representative democracy - a major goal of the member states - entails the exercise of full membership for all in society.  

           In this respect, the Commission cites Article 33 of the Charter which stipulates "that equality of opportunity, equitable distribution of wealth and income and the full participation of their peoples in decisions related to their own development are, among others, basic objectives of integral development."

          When the most vulnerable members of society are denied access to the basic needs for survival which would enable them to break out of their condition, it results in the right to be free from discrimination; the right to the consequent principles of equality of access, equity and distribution; and the general commitment to protect the vulnerable elements in society being willingly or complicitly contravened. Moreover, without satisfaction of these basic needs, an individual's survival is directly threatened.  This obviously diminishes the individual's rights to life, personal security, and as discussed above, the right to participate in the political and economic processes.

          The Commission notes that poverty has its greatest impact on children. According to the Inter-American Children's Institute, 45% of Latin America's population are children, and around 50% of these live in conditions of extreme poverty. Extreme poverty is described as a condition of life so limited  by malnutrition, disease, illiteracy, low life expectancy and high infant mortality as to be beneath any rational definition of human decency and dignity.[6]  Without food and access to basic health services, and with little or no education or no time to become educated, as they must either fend for themselves or help their families, these children remain trapped in a daily struggle for survival.

          II. THE PRINCIPLE OF PROGRESSIVE ACHIEVEMENT

          The principle that economic, social and cultural rights are to be achieved progressively does not mean that governments do not have the immediate obligation to make efforts to attain the full realization of these rights. The rationale behind the principle of progressive rights is that governments are under the obligation to ensure conditions that, according to the state's material resources, will advance gradually and consistently toward the fullest achievement of these rights.

          Moreover, the progressive development of rights is not limited to economic, social and cultural rights but is applicable to and inherent in all human rights instruments as they are elaborated and expanded. Human rights treaties frequently include provisions which either implicitly or explicitly envision expansion of the rights contained therein. The method by which they are expanded may depend on the direct application of provisions set forth in the treaty itself, or through amendments or additional protocols that complement, elaborate or perfect rights already established in the treaty.[7] An example is the evolution and expansion of the Inter-American human rights instruments. The principles articulated in the American Declaration of the Rights and Duties of Man were elaborated and expanded into the American Convention on Human Rights. Similarly, the Protocol of San Salvador is an extension of norms and principles set forth in the previous two texts as well as in the Charter.

          It therefore follows that the obligation of member states to observe and defend the human rights of individuals within their jurisdictions, as set forth in both the American Declaration and the American Convention, obligates them, regardless of the level of economic development, to guarantee a minimum threshold of these rights. A state's level of development may be a factor that is calculated into the analysis of its implementation of these rights, but this is not a factor that precludes the state's obligation to implement, to the best of its abilities, these rights. Rather the principle of progressivity demands that as the level of development in a state improves, so must its level of commitment to guaranteeing economic, social and cultural rights. This follows because the guarantee of economic, social and cultural rights requires, in most instances, public expenditure for social programs.

          In theory, the more resources a state has, the greater its ability to provide services that guarantee economic, social and cultural rights. This idea is affirmed in article 32 of the OAS Charter which describes development as the "primary responsibility of each country and should constitute an integral and continuous process for the establishment of a more just economic and social order..." (emphasis supplied). The Commission notes, however, that in view of the unequal distribution of wealth within the states in the region, coupled with other structural inadequacies (as will be discussed below), an increase in national revenues does not automatically translate into an improvement in the general welfare of the entire population. The commitment of states to take steps with the aim to achieving progressively the full realization of economic, social and cultural rights requires an effective use of resources available to guarantee a minimum standard of living for all.       

          III.    FACTORS THAT CONTRIBUTE TO THE NEGLECT OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS

          In a joint 1993 Report published by the World Bank and the International Monetary Fund ("IMF"), Latin America is singled out as the region of the world with the most unequal distribution of wealth, a situation which has been worsening since the 1950s. The report explains that the poorest 20% of the population in Latin America and the Caribbean receives 4% of their national revenues whereas the richest 10% of the population in this region receives between 42-43% of the revenues. Similarly, the 1992 Human Development Report of the UNDP notes that while Latin America has some of the most advanced economies of the developing world, these countries at the same time, also have some of the sharpest contrasts between their social classes, with millions of people living below poverty levels.[8]

          Some examples set forth in the UNDP report are: Brazil which has one of the most unequal distributions of income in the world with the richest 20% of the population receiving 26 times the income of the poorest 20%;[9]  in Chile, between 1970 and 1988, the real income of the poorest 20% fell by 3% while that of the richest 20% increased by 10%. [10] Similarly in the United States, the UNDP Report indicates that by desegregating the white, black and hispanic communities in terms of their purchasing power, education and health, there is a marked distinction that reflects the unequal access to education and basic health services. The white population in the United States, taken by itself, would rank number one in the world in terms of human development, whereas the black population would rank 31 and the hispanic population 35.[11]

           The 1991 UNDP Report indicates that Costa Rica has a good record for guaranteeing the basic needs of its people. Social reforms began in the 1940s following the abolishment of the Army and the subsequent creation of health, education, and social insurance institutions. Primary health care was emphasized beginning in the 1970s with rural and community health programs.[12]

          It is argued that the world economic recession during the 1980s, compounded by the foreign debt crisis that afflicts most member states, accounts for the incidence in poverty. On the other hand, however, the structural economic adjustments that many states in the region have implemented to make them eligible for international financial loans, have required drastic reductions precisely in the area of public expenditures at a time when the vulnerable groups in these societies are most in need of social programs.[13] Thus, an unintentional result of these economic adjustment programs has in fact been a deepening of poverty. It is the poor who bear the majority of economic and social burdens wrought by restrictions in public expenditures.

          Economic adjustments should not entail a decreased observance of human rights.  Instead, they can be used to redress social imbalances and correct the structural violations that are built into the economic and social structures of countries in the region. In fact, the prevailing view on adjustment has recently altered. The World Bank and, to some extent, the International Monetary Fund have begun incorporating the need for poverty alleviation and social safety nets into their adjustment policies and programs.[14]