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Global Systematic Discrimination against the
Poor due to be signed by States.      

Anthony Ravlich

Chairperson

Human Rights Council
Inc. (New Zealand)

10D/15 City Rd.,

Auckland City.

New Zealand.

Ph: (0064) (09) 302
2761

 (Paraguay is due to sign the Optional Protocol on September, 24, 2009)

The Optional Protocol
(a complaints procedure) for the International Covenant on Economic, Social and
Cultural Rights due to be signed by States on September 24, 2009, will, by its
exclusion of the core minimum obligations of the State from this international
human rights law, permit global systematic discrimination against the  most disadvantaged on the grounds of social
origin (Article 2(1), International Covenant on Civil and Political Rights).

These core minimum
obligations were devised by the UN Committee on Economic, Social and Cultural
Rights in 1990 after neo-liberal States pursuing globalization ignored the
human rights of the poor in past human rights instruments and created under
classes around the world.

 It is apparent that these core minimum
obligations were excluded in the above Optional Protocol because they were seen
by the UN and the global elites as incompatible with neo liberalism and
globalization. These core minimum obligations include the right to shelter,
freedom from hunger, the right to water and basic health and education and very
largely affect the most disadvantaged.

It is moment of truth
for the United Nations regarding the above Optional Protocol’s interpretation
of the UN Covenant on Economic, Social and Cultural Rights which excludes these
core minimum obligations. The UN must decide whether the Universal Declaration
of Human Rights and the UN Charter are to prevail over neo liberalism and
globalization or whether the latter are to be permitted to dominate which will
be the case if the Optional Protocol comes into force after 10 States sign and
ratify it. 

While during the 25
year dominance of neo liberalism the most disadvantaged  have always been discriminated against the
above Optional Protocol (OP) had the opportunity to include the necessary
protections - the core minimum obligations of the State – but thus far has
chosen to omit them and thereby legitimizes their exclusion from international
human rights law and permits the States, most of whom pursue neo liberalism and
globalization, to discriminate against the most disadvantaged. If the OP comes
into force this will, in my opinion, constitute global systematic
discrimination against the most disadvantaged on the grounds of social origin.

In addition, the OP
provides for a ‘shared responsibility’ amongst elites i.e. including the trade
unions, thereby uniting the neo liberal establishment. This will allow for such
systematic discrimination against the most disadvantaged to be more effective
as few will ‘speak out’ on their behalf especially where it is considered this
will conflict with globalization. The increased social control is seen as
particularly necessary as the most disadvantaged are very likely to increase
considerably in size due to the financial crisis. In New Zealand when unemployment
reached ten percent in 1991, it was followed by severe benefit cuts in 1992,
followed by the development of a large underclass.

Also without the
empowerment rights (see below) a very dependent population much less able to help
oneself or ‘speak out’ is very likely to be created.

Historically, the
omission of these core minimum obligations in the OP is contrary to the spirit
of this Covenant whose main purpose was to address the poor, particularly those
living in extreme poverty. Peter Fraser, former Prime Minister of New Zealand,
led the New Zealand
delegation at the Great Debate on the Universal Declaration of Human Rights at
the UN in 1948. Speaking on behalf of the New
Zealand delegation was Colin Aiken, he stated:
“Experience in New Zealand
has taught us that the assertion of the right of personal freedom is incomplete
unless it is related to the social and economic rights of the common man. There
can be no difference of opinion as to the tyranny of privation and want. There
is no dictator more terrible than hunger”. 
At the time New
Zealand upset other Western liberal counties
by supporting the economic, social and cultural rights championed by the East
European communist countries. Franklin Roosevelt, former President of the
United States, following the Great Depression, called for a second bill of
rights for economic and social rights stating ‘necessitous men are not free
men’ (see my recently released book, ‘Freedom from our social prisons: the rise
of economic, social and cultural rights’, Lexington Books).

By allowing the
omission of core minimum obligations the United Nations is permitting the
prevailing neo liberal ideology and globalization to overrule the Universal
Declaration of Human Rights which the United Nations have a duty to uphold
under the UN Charter (Ch 1, Article 1(3)). But there can be no compromise when
it comes to the core minimum obligations of the State, regarded as the
bottom-line, because at this level you are dealing with the most prevalent
serious violations which inflict considerable violence on people. Also, added
reasons to revisit the OP even at this late stage are the food and financial
crisis, which is globally creating high levels of unemployment and hunger, and the
lack of dependability of the Millennium Development Goals (MDGs), which also
addresses extreme poverty largely in the developing world. The MDGs are now
well off track (see below). Failure to include these core minimum obligations
is very likely, in my view, to lead to increased internal conflict within
States and also a future backlash against human rights.

By failing to include
core minimum obligations in the above OP States are able to simply focus on the
economic, social and cultural rights of elite groups or those higher on the
social structure and so discriminate against the most disadvantaged. I consider
the neo liberal elites which dominate at the United Nations to have, by their
exclusion of core minimum obligations, necessary for the proper interpretation
of economic, social and cultural rights, to have manipulated the OP in their
own interests and the pursuit of globalization. History reminds us that human
rights are not in the service of elites but rather in the service of humanity
as a whole.

The covenant on
economic, social and cultural rights has long been held out by the global
elites as a hope for the poor and the United Nations and global elites by
excluding core minimum obligations are prepared to deny the poor this hope. The
international human rights establishment generally take the view that the OP’s  ‘shared responsibility’ has empowered the
trade unions (see below) and this left- wing neo liberalism represents a step
forward but the majority of the population has been left out (see below). If
right-wing neo liberalism regains dominance and, for example, America returns
to a unilateral approach, ‘shared responsibility’ could well disappear and the
trade unions excluded.

By excluding the core minimum
obligations, which require immediately addressing serious social problems such
as homelessness, serious health problems, the right to water and ensure freedom
from hunger the UN and the  global elites
have chosen to consider the achievement of economic, social and cultural rights
as only requiring progressive achievement. Consequently if anyone makes
complaints using the OP the State can simply claim to have a plan in place to
deal with the problem and could conceivably continue to make such claims.
However, core minimum obligations, properly interpreted, require an immediate
response by States e.g. hungry children, seriously ill, and desperate people
cannot wait for a ‘ten year plan’ (see below) or wait for donations i.e. liberal
charity. The State can appeal to the international community if their social problems
are too great but must take responsibility for any violations although
circumstances may be a mitigating factor. The Preamble to the OP states:

“Recalling that each
State Party to the International Covenant on Economic, Social and Cultural
Rights…undertakes to take steps….with a view to achieving progressively
[my underline] the full realization of the rights recognized in the
Covenant….”.

Also without core
minimum obligations there is virtually no limit to the size of the under class
that can be created and virtually no limit to the extent their lifestyles can
be reduced. With the present financial crisis we are seeing such reductions in
lifestyle and very likely will see a much larger under class. It is apparent
that as lifestyles deteriorate the poor will have even less access to liberal
rights even though in law (see by book).

States take these
human rights instruments seriously (although America has often not done so in
the past - with, in my view, the tacit if not overt approval of other liberal
democracies - taking a unilateral approach, relying on its own Constitution. But
under Obama and ‘shared responsibility’ this has changed for the time being –
see below). States often adopt these instruments in domestic human rights law
and/or into State policies and so align themselves with other State elites in
the ‘so-called globalized world’ (but it is an ‘elitist’ globalization rather
than an ethical globalization, see below). So the exclusion of core minimum
obligations, given the global dominance of neo liberalism, and the food and
financial crisis and the well off track MDGs, will be far reaching in its
effects. The UN’s and the dominant neo liberal elites exclusion of core minimum
obligations from international human rights law was, in my view, deliberate and
contrary to the spirit of the covenant by allowing States – given a ‘wide
margin of appreciation’ by the UN - to deny the poor their human rights. This,
especially, as it would be known how neo liberal States have overlooked the
poor in past human rights instruments and also given that most countries pursue
neo liberalism. The four years the open-ended working group spent devising the
OP was notable for its lack of discussion on core minimum obligations (see my
book below). Therefore, the omission of the core minimum obligations from
international human rights law constitutes, in my view, global systematic
discrimination on the grounds of social origin. While non-discrimination on the
grounds of social origin is in the UN Covenant on Civil and Political Rights it
is conveniently left out of the New Zealand Human Rights Act 1993 and this is
also very likely to be the case in other liberal democracies. This
discrimination can be likened to systematic discrimination on the grounds of
race.

The Committee on the
Elimination of Racial Discrimination in their Declaration on the Prevention of
Genocide state that systematic violations can lead to violent conflict. The
Committee states its concern is ‘….to prevent situations of persistent patterns
of racial discrimination and other systematic violations of human rights
[my underline] that could lead to violent conflict and genocide’ (CERD/C/66/1,
17 October 2005). In my view, the growth of the under class in New Zealand is
very likely to lead to much greater ethnic violence of a criminal nature and
this will most probably be the case in many other countries as well.

Complaints are
permitted by the OP with respect to the exceptional cases of ‘grave and
systematic violations’ (Section 11(2), Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights) such as systematic racial
discrimination or genocide. But the globally widespread violations of core
minimum obligations are ignored. However, the OP allows neo liberal States to
protect the economic, social and cultural rights of the elites empowered by
their ability to use the OP to complain about social injustice while the people
will be kept ignorant of economic, social and cultural rights as has always
been the case (see below and my book) so for beneficiaries and the under class
the OP is very likely to be as ineffectual as the complaints procedures of
previous UN conventions which also included economic, social and cultural (see
my book). If core minimum obligations are not taken seriously at the
international level then they are very unlikely to be taken seriously at the
domestic level. 

These core minimum
obligations, which deal with extreme poverty and also associated with the under
classes, have been defined by the UN Committee on Economic, Social and Cultural
Rights who state that without such core minimum obligations the covenant loses
its ‘raison d’etre’ (General Comment No. 3). In other words if the most serious
violations, often the consequence of the extreme structural violence of neo
liberalism, are overlooked then the covenant has little meaning – in fact,
these rights, with the essential truths omitted, would become irrelevant and
simply be essentially the privileges bestowed on groups higher up the social
structure. In addition, General Comment No. 14 states: “It should be stressed,
however, that a State party cannot, under any circumstances whatsoever, justify
its non-compliance with the core obligations set out in paragraph 43 above,
which are non-derogable [i.e. to also apply in emergencies]” (see the relevant paragraphs from General
Comments No.3 and No. 14 at the end of this article)

Also excluded, in my
view, are the empowerment rights to development and human rights education
which I consider should also be included as core minimum obligations (although
the UN Committee on Economic, Social and Cultural Rights has not done so). The
most disadvantaged are discriminated against with respect to these empowerment
rights – they are kept ignorant of human rights and with respect to the right
to development (which also involves economic, social and cultural rights) they
are prevented from making use of their talents and abilities to help themselves
(and in more limited civil and political rights terms their right to liberty is
severely restricted). In the past the major objection to these empowerment
rights has been their inclusion of economic, social and cultural rights but in
their discussions of the above OP the global elites have by a considerable
majority determined that these rights have an equal status with civil and
political rights so there is little reason for their exclusion but the major
reason they should be included is because they allow the poor to have the
necessary added dignity of being able to help themselves. Otherwise their only
recognized state of being is one of dependency. Consequently the empowerment
rights should also, in my view, be regarded as core minimum obligations (under
the ‘bottom-up’ approach they would emphasize the core minimum obligations of
both sets of rights). The empowerment rights also allow people to ‘speak the
human rights language of the elite’ and therefore less likely to have their
views simply dismissed. The right to development allows people ‘to follow their
dreams’. It goes beyond the right to liberty of liberalism whose narrow focus
on civil and political rights, strongly favors the middle class, professional
sector especially in times of huge gaps between rich and poor. This means such
liberty is constrained to serve this dominant neo liberal elite rather than the
people as a whole. The addition of economic, social and cultural rights and
most especially core minimum obligations would help ensure the latter is the
case.

The empowerment
rights allow people to develop from the ‘bottom-up’ making use of  inner resources -  intellect, new ideas, talents, risk-taking,
entrepreneurship, holistic development, social conscience, experience and hard
work while the poor can also often be very ‘street-wise’ and, having
experienced poverty and hardship, very determined. It is such creative and innovative
individuals with new ideas that take society forward.  But most importantly they provide employment
for those beneficiaries and the under class, who often through very little
fault of their own, have had very few opportunities to develop their talents
and whose holistic development may have been severely curtailed in such a very
hostile neo liberal society. The right to development does not preclude a
socialist, more collective, approach as an outlet for people’s talents and as a
way of employing people. Also the use of microfinance has proved very effective
in other parts of the world in helping people to help themselves. It is this
‘bottom-up’ approach which builds the character of the individual and the
nation and takes society forward i.e. furthers its social development. If left
simply to a top-down society (which the international human rights
establishment certainly seems to encourage, see below) it would lead to a
dependent, domesticated people, a very alienated elite all content to settle
for mediocrity and the ‘easy life’ but with its attendant price of ‘arrested development’
so individuals are very unlikely ever to reach their full potential in life.
While people will simply come to tolerate the injustices and sometimes extreme
hardship, although much will be kept hidden, inflicted upon the most
disadvantaged who make up a high percentage of those in the Mental Health and
Criminal Justice Systems. While the State will increasingly ensure that the
poor will be looking after the poor which is exactly what happens as the policy
of individual responsibility keeps those who are unwell or with behavioral
problems as far as possible within the community. The vision of a Great Country
(in fact, a Great World), which is for everyone, is a very big ask but the
alternative, mediocrity, is far worse, in my view. I consider the UN and the
global elites have settled for even less than mediocrity with the present OP.

Human rights
education would allow people to hold the human rights agenda as devised by the
domestic and international elites to account at election time. There will be
human rights transparency. Such education, most particularly economic, social
and cultural rights, has been the greatest fear of States and the human rights
establishment since the Universal Declaration of Human Rights was signed in
1948. Without such education the mass of people would not be able to use the OP
to complain about any injustices – only the elites who have the necessary
expertise, time and resources would be so empowered. The international human
rights establishment know well that since the universal declaration of human
rights was signed in 1948 the world’s people have been kept virtually completely
ignorant of economic, social and cultural rights (see my book). That is a very
good reason why human rights education should have been included in the OP as a
core minimum obligation because individual States are very unlikely to risk
isolation – it needs to be in international human rights law. Also excluded
from the OP is non-retrogression, which I consider should also be regarded as a
core minimum obligation, and any curbing of levels of rights (whether in
domestic human rights law or not) should be subject to a high democratic
standard (see my book). Although, non- retrogression, the protection of
existing levels of rights, will strongly favor the status quo and the
prevailing elites the people will get their opportunity at election time to
eventually have economic, social and cultural rights and core minimum
obligations included in human rights law. Without the inclusion of
non-retrogression States are able to reduce existing human rights and
lifestyles and increase the numbers of poor within the State even to the extent
of violating these core minimum obligations as is likely to happen under the
current financial crisis with some of the new unemployed very likely to end up
in a much larger under class.

When faced with such
a hostile neo liberal environment including increasing numbers of people with
very little spending power means small business suffers. Small entrepreneurs,
the potential employers of beneficiaries and the under class, are reluctant to
take risks when the stakes for themselves and their family are so high as
failure cannot be an option. The suppression and neglect of small business is
like cutting off all one’s options yet continued global and/or internal
stability and non-protectionism cannot be guaranteed. Core minimum obligations
in international and domestic human rights law and implemented would ensure
such an underclass did not exist – such under classes seemed largely absent in
many liberal democracies prior to neo liberalism so it is certainly possible.
Also while the equal status of both sets of rights are now recognized the UN
and the global elites did not extend this to equal status of both sets of
rights at the level of core minimum obligations although at this level both
sets of rights are dealing with serious violence on people. The global elites
by failing to stipulate this allows neo liberal States (really neo liberal
elites at the UN allowing themselves) a ‘wide margin of appreciation’ to
overlook the most disadvantaged. 

Revisiting the above
OP is given more urgency by the poor performance of the MDGs which also address
extreme poverty although they target largely the developing countries. Faced
with the food and financial crisis the MDGs are considerably off track in
meeting their targets in 2015 particularly the goal to halve the numbers living
on one dollar per day. According to United Nations statistics ‘the global
recession has pushed up to 90 million more people into extreme poverty’
(Reuters, July 6, 2009) while world hunger is projected to reach an historic
high in 2009 with 1.02 billion people going hungry every day, according to the
UN Food and Agriculture Organization (June 22, 2009). The Millennium
Development Goals Report 2009 states: “More than halfway to the 2015 deadline
to achieve the Millennium Development Goals, major advances in the fight
against poverty and hunger have begun to slow or even reverse as a result of
the global economic and food crises, a progress report by the United Nations
has found. The assessment, launched by UN Secretary-General Ban Ki-moon in Geneva, warns that,
despite many successes, overall progress has been too slow for most of the
targets to be met by 2015”.

The MDGs, which are
not defined in human rights terms and so do not come under international law,
rely on States having sufficient political will to achieve the goals.
Consequently it is best described as ‘by way of charity not right’ and
therefore it is not only unreliable but also an indignity especially
considering the excessive focus on the Corporations has meant small business
development, including the productive sector and often small farms, have been
seriously suppressed and neglected and consequently the poor have been unable
to help themselves. However there is still a chance of having extreme poverty
dealt with under international human rights law if the excluded core minimum
obligations in the OP are included. Also while the MDGs target the developing
countries under international human rights law developed countries, which have
large under classes, will also be included. The MDGs overlook the isolation,
which can lead to very high rates of mental illness, experienced by individuals
in the ‘me’ cultures ( often experienced as ‘you are in it alone’ as contrasted
with the ‘we’ cultures such as found in many Asian societies) of the developed
countries –  this liberal ‘divide and
rule’ is made far worse when individuals are socially excluded through
unemployment while with little by way of family support.

As stated the core
minimum obligations were devised by the UN Committee on Economic, Social and
Cultural Rights and includes the right to shelter, freedom from hunger, the
right to water, basic health and education (see General Comments). These core
minimum obligations first appeared in General Comment No.3, the Nature of
States Parties Obligations, on December 14, 1990, about one year after the
collapse of communism in Eastern Europe.
Russia despite its many failings in the area of civil and political rights
ensured decent health, employment, education and housing for its people. The USSR,
throughout the Cold War, had been the major champions of economic, social and
cultural rights at the UN. This bipolar world, in my view, kept the Western
liberal democracies honest – the West realized that if it did not treat the people
well they could turn communist. The liberalism pursued during the Cold War
involved a more balanced approach to development, while civil and political
rights, assisted considerably by a good welfare system, were more accessible
and alternative truths more tolerated (liberal pluralism) or at least allowed
to be aired in public which is not presently the case. It would appear that
core minimum obligations were introduced by the UN Committee on Economic,
Social and Cultural Rights to uphold the UN Charter by protecting extreme
violations of economic, social and cultural rights as there was now little
support by States for these rights. But most likely to be the major reason for their
introduction was the way the new neo liberal States, on a wave of euphoria
following the collapse of the Soviet bloc, acted as if it had in the words of
Francis Fukuyama, reached ‘the end of ideological history’ (see my book) and
overruled human rights instruments ignoring the human rights of the most
disadvantaged in their pursuit of globalization. And in this new unipolar world
they did it because they could – there was no significant countervailing force
holding them to account for such denials of liberal rights which were, are
still are, able to be kept hidden (see my book). For example, affirmative
action policies based on the conventions regarding non-discrimination with
respect to race and women, which included economic, social and cultural rights,
saw neo liberalism override these instruments and exclude the most disadvantaged
– affirmative action was very largely only applied to those higher on the
social scale while under classes rapidly grew around the world. But now the
core minimum obligations of the State have been devised the mistakes of the past
do not have to be repeated. Neo liberalism and globalization is now in
confrontation with the Universal Declaration of Human Rights and the UN Charter
– the question is whether the UN is up to the task because certainly the rest
of the international human rights establishment seems captured by left-wing neo
liberalism and globalization (see below).

Neo liberalism as it
has done with the UN Charter (unless the situation can be retrieved) in
relation to this OP can override national constitutions. For example, in South
Africa, which now has enormous social problems, neo liberalism has
overruled  economic, social and cultural
rights despite these rights being justiciable (amenable to judicial interpretation)
and in its Constitution (however, the well known case of Grootbroom in South
Africa has given some recognition to core minimum obligations, see my book). In
the same way neo liberalism overruled civil and political rights, which are in
the human rights law of many jurisdictions, when dealing with the most
disadvantaged  so obviously ‘freedom and
democracy’ was not meant to apply to the latter. The relevant human rights
body, the UN Human Rights Committee has not devised core minimum obligations
with respect to civil and political rights so States consider they did not have
to address them or the most disadvantaged. Consequently as is found to be the
case with economic, social and cultural rights in the South African
Constitution civil and political rights despite being in human rights law are very
often inaccessible to many apart from the elites.

In the present food
price crisis the inclusion of core minimum obligations in the above OP would
have ensured that the hungry could have the rights to food and development as
the State is ultimately responsible for human rights. Without the right to
development there is no assurance the poor will be permitted to help
themselves. Kanayo Nwanze, President of the International Fund for Agricultural
Development states: "For most developing countries there is little doubt
that investing in smallholder agriculture is the most sustainable safety net,
particularly during a time of global economic crisis” (1.02 Billion People
Hungry, June 19, 2009, quoted in Friends of the World Food Program).

Also in New Zealand, with a population of
about 4 million and a major food producer, child hunger is also a problem
(although, in my experience, starving people do not exist here). A charitable
trust, KidsCan, which recently was the focus of a telethon on national
television, runs a ‘Food for Kids’ program (www.kidscan.org.nz/index.html)
providing free food at school for over 8,500 financially disadvantaged ‘with
many schools on the waiting list’. If the core minimum obligation of freedom
from hunger was included in human rights law the State would have to ensure
this problem was immediately addressed. Courts would make human rights more
transparent and questions would be asked about the neo liberal, globalization
policies which give rise to such child hunger rather than simply ‘blaming the
parents’ as a number do. Because of the relationship between poverty
and hunger a recent Child Poverty Action Group report calls for the elimination
of child poverty by 2020, to be achieved by a dedicated programme of
cross-sectoral work toward government poverty reduction targets. It adds that
the UK,
with a higher rate of child poverty, has already committed to that goal and
made significant progress (www.cpag.org.nz)
. But ten year plans to deal with child poverty, while child hunger depends on
sufficient donations, indicates the lack of 
vision of the present OP. Every child should be able to reach for the
stars and this should not be made impossible because of the enormity of the gap
between rich and poor. Certainly, as in the above cases, both a progressive and
an immediate approach would be necessary to achieve economic, social and
cultural rights, properly interpreted.

While Americans may get
infrastructure jobs for the unemployed (the New Zealand Infrastructure Bill to
improve infrastructure development is presently before parliament, August 25,
2009, NZPA) and possibly health insurance the American Dream seems under
serious threat. The exclusion of the right to development in the OP also allows
States to neglect small business and the dreams of many, sometimes talented people
having to settle, instead, for ‘survival’ infrastructure jobs, such as sweeping
the streets, or ‘bare survival’ micro-businesses e.g. lawn mowing, shoe
shining, cleaning windows, stalls etc. which are likely to become more
prevalent. Also, in New
Zealand’s case, largely because of lack of
opportunity many of those often described as the ‘best and brightest’ have left
the country. There are 800,000 New Zealanders out of a population of about 4
million living overseas. Also, according to the American Small Business League
the diversion of small business contracts to large Corporations presently
stands at about $US66,213,800,000. The League states on its website
(www.asbl.com) that Obama has failed to honor his campaign promise to stop this
diversion. It also states that the U.S.
Census Bureau data indicates that firms with less than 20 employees account for
90% of all U.S. firms and
are responsible for more than 97% of all new jobs in America.

Also there is a very
disquieting, even sinister, aspect to the approach taken by the above mentioned
UN instrument/declaration which fail to include self-help –  which means the poor are to be kept in a
state of dependency and consequently very often unable to ‘speak out’. Anecdotal
evidence in New Zealand
indicates that there are many creative, talented individuals with proven
ability who are not being rewarded for their work. And this strongly suggests
that such independence is being actively discouraged. Even the core minimum
obligations devised by the UN Committee on Economic, Social and Cultural Rights
fail to include the empowerment rights. Also, for example, the MDGs do not
include self-help as a goal – yet a voice for the poor would have involved
extremely little cost and with sufficient political will could have been
achieved in many States virtually overnight - and the OP leaves out the
empowerment rights to development and human rights education. Surely it can not
be the intention of the international human rights establishment to completely
crush the spirit of the people. If this is the social model, supported by the
Corporations, that the West wants autocratic regimes and the rest of the world
to emulate then the future of the world seems ominous. The social/corporate
model now advanced by the West for other countries to emulate involves a
society where the establishment, which includes, as well as the State, the
professional elites, the trade unions, the Corporations, the ‘so-called
liberal’ mainstream media as well as very many of the ‘so-called independent’
NGOs of civil society, are pitted against the independent peoples and the most
disadvantaged but this, in my opinion, will lead to increasing internal
conflict within States - as seventeenth century philosopher Thomas Hobbs in the
Leviathan stated: “…a Kingdom divided in itself…cannot stand”.

The interpretation of
the covenant on economic, social and cultural rights by the OP, in my view, can
only be described as gross social science malpractice. There  certainly appears to be a lack of
sociological and holistic understanding (head/heart balance), and the will and
imagination to make things happen for the poor. In my experience economic,
social and cultural rights, the empowerment rights and the bottom-up approach
can only be fully understood by close contact with the community so when
writing my book I virtual knew beforehand what the OP would exclude. Of the
fourteen members, out of eighteen, on the UN Committee on Economic, Social and
Cultural Rights who have provided their employment histories and qualifications
there is no sociologist (the closest being an anthropologist) – the backgrounds
are largely the law and political science.

My recently released
book, Freedom from our social prisons: the rise of economic, social and
cultural rights (Lexington Books) discusses the above OP and the ‘bottom-up’
approach to human rights which not only includes the core minimum obligations
with respect to economic, social and cultural rights excluded by the OP but
also considers, as stated above, there is a need for core minimum obligations
with respect to civil and political rights. These are included in the
‘bottom-up’ approach. Also the empowerment rights and non-retrogression are
regarded as core minimum obligations. Essentially core minimum obligations
require immediate implementation while higher levels of rights can be achieved
progressively. But while both sets of rights have equal status at the higher
level and at the level of core minimum obligations the latter are to be
immediately implemented while the former ‘equal status’ can be achieved over
time. While non-retrogression protects existing levels of rights this is
contingent on the immediate implementation of core minimum obligations. In
other words the gap between rich and poor cannot not be allowed to get larger
unless these core minimum obligations are addressed. In addition, there is a
need for the two covenants to be combined as originally conceived in the early
1950s as two covenants allows for freedom to be given with one hand (Obama’s
protection of civil liberties) while food is taken away with the other i.e.
unemployment and the food price crisis.

In the post script to
this article I seek to debate this subject on public television –  a recent email from ESCR-JUST (27th
August 2009) stated: “ 32,750 persons and organizations from 74 countries have
added their voice to the petition in support of the Optional Protocol to the
International Covenant on Economic, Social and Cultural Rights”. But would any
of them in the interests of human rights transparency take me up on my
challenge? Anyway it is really about truth but with respect to the ‘numbers
game’ I consider the considerable majority of the world’s population, who are
poor, would agree with me.

It seems apparent
that core minimum obligations were excluded in the OP because they were seen as
incompatible with globalization but the latter in my view is elitist i.e. an
‘elitist’ globalization (now left wing because of the ‘shared responsibility’
with the trade unions). This elitist globalization is evidenced by the big gaps
between rich and poor resulting in ‘freedom and democracy’ only for elites and
while liberal rights are in law few of those with minimum social justice such
as a homeless person would proclaim themselves free (rather they are very
dependent) and, in fact, they are increasingly disinclined to vote in a country
when they feel whichever party is in power makes no difference to them (again
in my book). Globalization is also a major objective of the Millennium
Declaration (2000) which states: 5. “We believe that the central challenge we
face today is to ensure that globalization becomes a positive force for all the
world’s people”. The MDGs are based on this declaration. Yet, as stated, under
the UN Charter the UN has a duty to uphold the universal declaration of human
rights but it is apparent that this ‘elitist’ globalization is overruling the
universal declaration. What is required is an ethical globalization (but not
the ethical globalization of Mary Robinson’s ‘Realizing Rights’, see below)
which will be compatible with the UN Charter. It would entail a much more balanced
approach to development, and involves immediately addressing core minimum
obligations at home and then, where necessary, under international law, by
right not charity, help other countries to achieve their core minimums.
Ensuring core minimum obligations would mean States, now with a very firm
bottom line ensuring the very essential needs common to humankind are reliably met,
would together with the Corporations be less able to exploit the desperation of
workers to gain a competitive advantage and this would result in a more fair
trading environment.

 In addition, the democracy promoted by the
West is an ‘elitist democracy’ because the parameters are determined by the
human rights agenda, which excludes core minimum obligations. For example, none
of the seven parties in New
Zealand’ parliament challenge globalization
publicly although privately some may be critical. Fear of isolation very
effectively ensures no dissent. In addition, the ‘so-called liberal’ mainstream
media follows the same agenda and, in the experience of our council, any new
party considered a threat to the human rights agenda as devised by the domestic
and global elites will simply be ignored. 
Section 5(a) of the New Zealand Human Rights Act 1993 requires the
commission to educate New Zealanders in human rights, including economic, social
and cultural rights, but the commission readily admits successive governments
have refused to fund it. There is a duty, in a democracy, to inform people of
human rights matters which are necessary for voters to know.

While the Universal
Declaration of Human Rights represents a higher stage of development than the
Western liberal historical legacy both are very seriously undermined by neo
liberalism which in terms of implementation has also discriminated against the
most disadvantaged in terms of civil and political tights. And as shown above
this discrimination is now intended to extend to economic, social and cultural
rights. The discrimination against the most disadvantaged on the grounds of
social origin with respect to civil and political rights include: failing to
give the poor a voice in the mainstream media so they can influence the
democratic majority (yet this would have cost very little); failing to include
non-discrimination on the grounds of social origin in domestic human rights
law; failing to apply affirmative action policies for the most disadvantaged;
seriously limiting the liberty of the most disadvantaged or, in other words,
not allowing the poor to help themselves (also their right to development); and
failing to ensure their access to liberal rights. Under neo liberalism many
millions have been denied their liberal rights and reduced to powerlessness, voicelessness
and discrimination but these denials of liberal rights are kept hidden (see my
book).

The OP reflects an
ideological shift from right wing neo liberal elitism, the Bush administration,
to left wing neo liberal elitism, adopted by the Obama administration. What
both approaches have in common is the exclusion of core minimum obligations as
above and as defined further by the ‘bottom-up’ approach. The approach of the
Obama administration is similar to that adopted by Mary Robinson, former
President of Ireland
and UN High Commissioner for Human Rights and Founder (2002) and President of
Realizing Rights: an Ethical Approach to Globalization (www.realizingrights.org). However,
in my view, the term ‘ethical’ here is a misnomer as the approach is best
described as an essentially left wing neo liberal elitist approach as adopted by
Obama and as devised by the global elites in the above OP. While her ethical
perspective is based on trade union inclusion Mary Robinson acknowledges that
the ‘vast majority of the world’s workers – including the poorest - those most
in need of protection - are in the informal sector’ (Human Rights:
A Global Perspective UN Global Compact U.S. Network Meeting “Business and Human Rights”, 28 April 2008, Harvard Business School).
While Bush’s right wing neo liberal approach only recognized civil and political
rights and was only concerned with perpetuating the dominant neo liberal
middleclass, professional elite, which typically liberal democracies have
revolved around, its social control involved the curbing of civil liberties
sometimes very seriously e.g. Guantanamo Bay and Abu Ghraib,  which lost America much legitimacy around the
world. While the Obama administration intends to protect civil liberties it has
taken an inclusive approach – ‘shared responsibility’ - to social control. The
trade unions, which are empowered by the above OP (although because there will
be no human rights education this will not empower the larger population), are
included in the ‘we are all in this together’ approach, designed, as with the
right wing approach, to curb ‘speaking out’ by members of a now united
establishment also now able to more effectively control (and discriminate
against) the  most disadvantaged. The
voices of the rest of the population are controlled very effectively by the
‘so-called liberal’ mainstream media which seems to regard the internet as the
proper place for ‘unsafe truths’ but this does not reach the democratic
majority and democracy demands that voters are informed.

Also in relation to
the financial crisis it may well have had its origins in a flawed international
system. The right to property was removed from its responsibilities to other
rights by leaving it out of the two covenants (wrongly, in my view, as there is
no reason to consider the right to property as any more important than, say, freedom
of speech or children’s rights) and placed in the hands of the now IMF and
World Bank which were very influential in deciding whether the private sectors
of States would be socially responsible or not. And the move towards a ‘shared
responsibility’ may well have deterred investors who may not have wished to
share profits with the trade unions unless the latter supported the downsizing
of big business leading to high global unemployment. Also during the OP
discussions there was no mention of how the ideas of the world’s population
could be maximized and harnessed to take the world forward rather a ‘budgeting
mentality’ prevailed as if all those on a dollar a day need is a good budgeting
service.

I consider a proactive approach is now very
much required as the world begins to enter troubled times with its considerable
social problems for which neo liberalism (left and right wing) has very few
answers except greater social control to avert internal conflict. Hence the
preoccupation of the neo liberal establishment with public safety is, in my
view, really about the national security i.e. protecting neo liberal interests,
to guard against ‘unsafe truths’ and social conflict as the underclass swells
in its ranks.  The international human
rights establishment needs, in my view, to be far more human rights
transparent. Neo liberal dominance has resulted, in my opinion, in a very
elitist human rights establishment. Under neo liberalism the money does not
trickle down and neither do human rights, in fact, while public property has
become private property the human rights language  has become the private intellectual property
of the elites. For example, core minimum obligations have been largely kept
hidden and such deceptions are what 19th Century liberal philosopher
John Stuart Mill was referring to in his book On Liberty when he stated: “Not the violent
conflict between parts of the truth, but the quiet suppression of half of it is
the formidable evil”. Since 1991 when I first began promoting the universal
declaration, mainly economic, social and cultural rights, I have lived in
poverty and mixed with the poor. I observe an overwhelming neo liberal
conformity which regards truth as irrelevant as having descended on States. Neo
liberal elites seem unable to develop beyond liberalism. The most that could be
expected of them is that they adhere to their liberal principles but, as
previously stated, even here they have performed extremely badly. If the neo
liberal elites cannot do liberalism well they are very unlikely to do economic,
social and cultural rights well.

The most
disadvantaged can not be allowed to be subjected to global systematic
discrimination on the grounds of social origin. Consequently, the United
Nations should revisit the OP and include the core minimum obligations.

If these are not
included the discontented such as the anti-globalization, the non-aligned
movements and disaffected States can engage in a peaceful struggle to have them
included in domestic and international human rights. Within States the struggle
can be pursued by more truly independent NGOs. The discontented will, in my
opinion, have the Universal Declaration of Human Rights, history, the truth,
the considerable majority of the world’s population and God on their side.

PS. If there is anyone
in the international human rights establishment, in the interests of human
rights transparency, who is prepared to debate this subject with me preferably
on public television and preferably before States are due to sign the OP it can
be arranged in Auckland, New Zealand. But if you prefer
another venue please let me know.

General Comment No.
3:

10. On the basis of
the extensive experience gained by the Committee, as well as by the body that
preceded it, over a period of more than a decade of examining States parties'
reports the Committee is of the view that a minimum core obligation to ensure
the satisfaction of, at the very least, minimum essential levels of each of the
rights is incumbent upon every State party. Thus, for example, a State party in
which any significant number of individuals is deprived of essential
foodstuffs, of essential primary health care, of basic shelter and housing, or
of the most basic forms of education is, prima facie, failing to
discharge its obligations under the Covenant. If the Covenant were to be read
in such a way as not to establish such a minimum core obligation, it would be
largely deprived of its raison d'être. By the same token, it must be
noted that any assessment as to whether a State has discharged its minimum core
obligation must also take account of resource constraints applying within the
country concerned. Article 2 (1) obligates each State party to take the
necessary steps "to the maximum of its available resources". In order
for a State party to be able to attribute its failure to meet at least its
minimum core obligations to a lack of available resources it must demonstrate
that every effort has been made to use all resources that are at its
disposition in an effort to satisfy, as a matter of priority, those minimum
obligations.

General Comment No.14

47. In determining which actions or
omissions amount to a violation of the right to health, it is important to
distinguish the inability from the unwillingness of a State party to comply
with its obligations under article 12. This follows from article 12.1, which
speaks of the highest attainable standard of health, as well as from article
2.1 of the Covenant, which obliges each State party to take the necessary steps
to the maximum of its available resources. A State which is unwilling to use
the maximum of its available resources for the realization of the right to
health is in violation of its obligations under article 12. If resource
constraints render it impossible for a State to comply fully with its Covenant
obligations, it has the burden of justifying that every effort has nevertheless
been made to use all available resources at its disposal in order to satisfy,
as a matter of priority, the obligations outlined above. It should be stressed,
however, that a State party cannot, under any circumstances whatsoever, justify
its non-compliance with the core obligations set out in paragraph 43 above [see
below], which are non-derogable.

Core obligations

43. In General Comment No. 3,
the Committee confirms that States parties have a core obligation to ensure the
satisfaction of, at the very least, minimum essential levels of each of the
rights enunciated in the Covenant, including essential primary health care.
Read in conjunction with more contemporary instruments, such as the Programme
of Action of the International Conference on Population and Development, (28)
the Alma-Ata
Declaration provides compelling guidance on the core obligations arising from
article 12. Accordingly, in the Committee's view, these core obligations
include at least the following obligations:

(a) To ensure the right of access to
health facilities, goods and services on a non-discriminatory basis, especially
for vulnerable or marginalized groups;

(b) To ensure access to the minimum
essential food which is nutritionally adequate and safe, to ensure freedom from
hunger to everyone;

(c) To ensure access to basic
shelter, housing and sanitation, and an adequate supply of safe and
potable water;

(d) To provide essential drugs, as
from time to time defined under the WHO Action Programme on Essential Drugs;

(e) To ensure equitable distribution
of all health facilities, goods and services;

(f) To adopt and implement a national
public health strategy and plan of action, on the basis of epidemiological
evidence, addressing the health concerns of the whole population; the strategy
and plan of action shall be devised, and periodically reviewed, on the basis of
a participatory and transparent process; they shall include methods, such as
right to health indicators and benchmarks, by which progress can be closely
monitored; the process by which the strategy and plan of action are devised, as
well as their content, shall give particular attention to all vulnerable or
marginalized groups.