The UN Committee on Economic, Social and Cultural Rights - Essay Example

 The UN Committee on Economic, Social and Cultural Rights The United Nations Committee on Economic, Social and Cultural Rights (CESCR) refersto the body made up of independent experts, which monitors the implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) by all its member states. The Committee, which was created through the 28 May 1985 ECOSOC Resolution 1985/17, is tasked with the mandate of carrying out the monitoring functions allotted to the United Nations Economic and Social Council (ECOSOC) in the Covenant (Part IV). All member states are required to submit, to the Committee, regular reports regarding the level and manner in which rights are being implemented in their countries. Notably, CESCR requires states to submit reports within the initial two years after assenting the Covenant and every five years thereafter. The execution of its mandate requires CESCR to examine each report and address its inherent recommendations and plans to the state party through the form of concluding observations. The Committee of experts meets thrice per year to examine these reports and determine states’ compliance with the ICESCR (Anton & Shelton 2011, p. 97). This means that the CESCR plays an integral role in guaranteeing that state parties ensure that their citizens attain their rights to the highest achievable standard of health. This paper will consider the contribution that the CESCR has made to state parties’ appreciation of people’s right to the highest achievable standard of health. The mandate of CESCR allows it to consider the traditional, as well as emerging conceptions regarding people’s legal rights. With the appreciation of these legal rights comes the implementation of practical actions, which are conceived within a model, which has been created in the milieu of private claims against other people or public claims against the state (Pogge, Rimmer & Rubenstein 2010, p. 360). Through this knowledge, the UN CESCR attempts to make all legal rights related to people’s social, cultural and economic rights public rights rather than private rights. This is primarily because the private law model consists of three distinctive features, which comingle to attempt to displace the legal significance of people’s inherent right to health. The first feature deals primarily with theorizing that social and economic rights are positive rights and those positive rights are generally considered as non-justifiable. Rights, which require the input rather than non-interference of government, are typically unsuited to litigation, but rather belong in the branches of government that are considered as democratic, where they are open to contestation (Dowell-Jones 2004, p. 201). Secondly, legal rights are considered as coterminous with remedies; this means that relief will only contingent on the harm caused by a breach of duty, from the duty holder to the rights holder. Therefore, successful implementations of rights are considered by the nature of relief given to the claimant (Dennis & Stewart 2004, p. 467). As a consequence, when the claimants are multiple (as in the case of a state’s citizens) appropriate remedies become elusive or unattainable. Lastly, Pogge, Rimmer & Rubenstein (2010, p. 361) consider the conception of citizens’ legal rights as private to be detrimental to a government’s fulfilment of the requirements of the CESCR because such a legal system conciders health as a private good. This private good is consumed, in the form of healthcare via market-based mechanism and defended by criminal and tort law. The CESCR, therefore, deters the consideration of health as a private good in order to deter the aforementioned implications. When health is accessed collectively, in the form of a public good, it becomes protected by occupational, environmental and public health laws. In essence, the CESCR helps state parties appreciate that, outside the regimes that consider health as a private right; health can be realized practically and voluntarily by the choices of both institutions and people within the health system, both private and public. While the private law model of health searches for institutional certainty, the public law model to health appreciates the value of securing the object of the right. In addition, while private law upholds court-led reforms in healthcare, private conceptions seek legislative action, both on a national and international front. Therefore, the consideration of health rights as public rights facilitates the creation, challenging and alteration of within certain contexts. In addition to affirming the significance of making health a public right, the CESCR also appreciates the potential problem inherent in the establishment of countless regional laws for the protection of health, economic and cultural rights. On the contrary, the CESCR advocates the creation of universal treaties to manage health rights. However, these universal treaties may not necessarily be justifiable or enforceable immediately, on account of their aspirational nature. This problem can, however, be resolved by case law where courts decide which enforceable health rights have been violated and whether or not the government has negative or positive obligations to revere and meet the rights in question (Phan 2012, p. 191). In essence, the CESCR plays a critical role in affirming that cultural, economic and social rights such as rights to health are not matters of charity, but rather legally enforceable rights, which can be claimed by all individuals without any form of discrimination. The Committee ensures the attainment of these rights by holding violators such as governments responsible for their actions. The Committee makes it clear that the highest achievable health is a right rather than a charity by seeking remedies to ensure that such violators correct their misdeeds and implement effective mechanisms to ensure future fulfilment of the right to superior quality of health. I strongly believe that in its new capacity as an adjudicating body as envisioned by the Optional Protocol to the ICESCR, the Committee will strengthen its contribution to the right to the highest achievable standard of health (Dennis & Stewart 2004, p. 466). This is because its role as adjudicator will enable the CESCR enhances the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ ability to manage its complaint and enquiry mechanisms (Anton & Shelton 2011, p. 124). These mechanisms will in turn enhance the capacity of the Committee to progressively put into practice social, economic and cultural rights, particularly the right to the highest possible standard of health, which encompasses the right to adequate standards of life. In its new role, the Optional Protocol develops individual complaints mechanisms on behalf of the Covenant; however, the Optional Protocol requires complainants to exhaust all available domestic remedies before filing anonymous complaints (Dowell-Jones 2004, p. 184). The Optional Protocol also enhances the ability of the Committee to guarantee that people receive the highest achievable standard of health by considering complaints referring to events that took place prior to the country’s assertion to the Optional Protocol. The Optional Protocol also enhanced the effectiveness of the inquiry mechanism by enhancing the Committee’s capacity to investigate and report on and implement recommendations, particularly with regard to severe violations of rights such as health rights (Vandenbogaerde & Vandenhole 2010, p. 208). In essence, the Optional Protocol, in its mandate as an adjudicator, offers further recognition of the innate dignity of all human beings, as well as the significance of justice and accountability for the violators of human rights. At its core, the right to health is a human right, which requires the input of authoritative institutions such as the Optional Protocol to ensure implementation (United Nations 2008, p. 1). Therefore, the Optional Protocol institutes essential steps towards the establishment of the long-awaited mechanisms, which enforce indivisibility, universality, interrelatedness and interdependence of all human rights, particularly with regard to the right to the highest standards of health. Therefore, as adjudicator, the Optional Protocol will pave the way for victims of human rights violations of the rights protected by the ICESCR, who are unable to acquire remedies in their own countries, to look for justice in the United Nations (Vandenbogaerde & Vandenhole 2010, p. 220). References Anton, DK & Shelton, DL 2011, Environmental protection and human rights, Cambridge University Press, London. Dennis, MJ & Stewart, DP 2004, ‘Justifiability of economic, social, and cultural rights: Should there be an international complaints mechanism to adjudicate the rights to food, water, housing, and health?’ American Journal of International Law, vol. 462. Dowell-Jones, M 2004, Contextualising the international covenant on economic, social and cultural rights: assessing the economic deficit: volume 80 of international studies in human rights series, Martinus Nijhoff Publishers, Brixton. Phan, HD 2012, A selective approach to establishing a human rights mechanism in Southeast Asia: The case for a Southeast Asian COURT OF HUMAN RIGHTS: Volume 29 of procedural aspects of international law, Martinus Nijhoff Publishers, Brixton. Pogge, T, Rimmer, M & Rubenstein, K 2010, Incentives for global public health, Cambridge University Press, London. United Nations 2008, Economic, social and cultural rights: legal entitlements rather than charity” say UN Human Rights Experts, viewed 10 December 2008, http://www.unhchr.ch/huricane/huricane.nsf/view01/C5486C42747EC60BC125751B005B08B3?opendocument Vandenbogaerde, A & Vandenhole, W 2010, ‘The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights: An ex ante assessment of its effectiveness in light of the drafting process’ Human Rights Law Review, vol. 207. Read More