International Indicators and Economic, Social, and Cultural Rights

International Indicators and Economic, Social, and Cultural Rights
Judith V. Welling
Human Rights Quarterly, Volume 30, Number 4, November 2008, pp. 933-958 (Article)
Published by The Johns Hopkins University Press DOI: 10.1353/hrq.0.0040
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HUMAN RIGHTS QUARTERLY
International Indicators and Economic, Social, and Cultural Rights

Judith V. Welling*
Two main reasons for the underdeveloped justiciability of international treaties on economic and social rights, amplifying each other, are to be identified in: (a) the wording of these provisions, and (b) the relatively weak international monitoring mechanisms under the treaties in question.1
ABSTRACT
This article explores recent progress in the development of international indicators for economic, social, and cultural rights (ESCR) and benefits ascribed to indicator standardization. Part Two outlines the general approaches and key considerations of initiatives that have undertaken international ESCR indicator development. Part Three categorizes the anticipated benefits of standardization according to their level of influence. Part Four describes how current initiatives derive indicators from the International Covenant on Economic, Social and Cultural Rights (ICESCR) legal framework and highlights the importance of calibrating international indicators to specific Covenant obligations. Part Five describes how international indicators can impact ICESCR norm clarification, and Part Six addresses remaining issues and concerns related to international ESCR indicator development.
* Judith J. Welling completed a post-graduate fellowship at the Lauterpacht Center for International Law at Cambridge University. She received her J.D. from Indiana University School of Law and was the 2006 Snyder Scholar of her graduating class. She has examined the application of economic and social human rights in foreign and domestic settings and currently resides in Washington, D.C. Ms. Welling would like to thank the Indonesian Legal Aid Society (YLBHI) and the Southeast Asian Council on Food Security and Free Trade (SEACON) in Kuala Lumpur, Malaysia for opening their doors, as well as fellows and staff of the Lauterpacht Center, Human Rights First, and the National Community Reinvestment Coalition (NCRC). John Barker, Niaz Shah, and Marjan Radjavi, Patra Zen, Yasmin Purba, and Christina Cerna deserve special thanks for their contributions. 1. Martin Scheinin, Economic and Social Rights as Legal Rights, in Economic, Social and cultural rightS: a tExtbook 29, 30 (Asbjrn Eide et al. eds., 2d ed. 2001). Human Rights Quarterly 30 (2008) 933958 2008 by The Johns Hopkins University Press
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I.
INTRoDUCTIoN
In January 1993, eight years after the creation of the Committee on Economic, Social and Cultural Rights (CESCR), the Special Rapporteur on the Realization of Economic, Social and Cultural Rights, Danilo Trk, recommended a seminar to consider appropriate indicators to measure achievements in the progressive realization of economic, social, and cultural rights (ESCR).2 This seminar, convened under the auspices of the United Nations Center for Human Rights, discussed a number of conceptual issues involved in the creation of ideal indicators for ESCR. While the seminar made many new and notable observations concerning the nature of ESCR, the seminars participants declared their own project premature. These experts had come to understand that the identification of ideal indicators for ESCR required a clear conceptualization of the substantive rights contained in the International Covenant on Economic, Social and Cultural Rights (ICESCR)3 and that this clarity was not yet available. The seminar further discovered that many indicators it would have deemed potentially ideal were not even used to collect data under the ICESCR legal framework.4 On account of this fundamental insightthat an effective set of international indicators relied on a pre-existent, cogent, and well-defined human rights frameworkthe seminar recommended the further elaboration and clarification of ESCR norms before the development of ideal indicators.5
2. Report of the Secretariat: Report of the Seminar on Appropriate Indicators to Measure Achievement in the Progressive Realization of Economic, Social and Cultural Rights, U.N. GAOR, World Conf. on Hum. Rts., Prep. Comm., 4th Sess., Agenda Item 6, U.N. Doc. A/CONF.157/PC/73 (1993). International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]. The ICESCR legal framework includes the text of the ICESCR, the General Comments, and other interpretations of these obligations adopted by the CESCR. These include The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, adopted 8 Jan. 1987, U.N. ESCOR, Commn on Hum. Rts., 43d Sess., Agenda Item 8, U.N. Doc. E/CN.4/1987/17/Annex (1987), reprinted in The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 9 hum. rtS. Q. 122 (1987) [hereinafter Limburg Principles] and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, adopted 2226 Jan. 1997, reprinted in The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 hum. rtS. Q. 691 (1998) [hereninafter Maastricht Guidelines] (formulated in Maastricht from 2226 January 1997 by more than thirty experts convened by the International Commission of Jurists, the Urban Morgan Institute for Human Rights, and the Centre for Human Rights of the Faculty of Law of Maastricht University). audrEy chapman, amErican aSSn for thE advancEmEnt of SciEncE, indicatorS and StandardS for monitoring Economic, Social and cultural rightS 6 (2000), available at http://hdr.undp.org/ docs/events/global_forum/2000/chapman.pdf; Report of the Secretariat: Report of the Seminar on Appropriate Indicators to Measure Achievement in the Progressive Realization of Economic, Social and Cultural Rights, supra note 2, 159.
3. 4.
5.
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In the past fifteen years, actors from within the international human rights community made significant gains in clarifying Covenant norms, which has led to a revived interest in investigating, conceptualizing, and developing ideal indicators for ESCR. These proposed measurement indicia are now referred to as international indicators, for those seeking their implementation under the ICESCR legal regime want states parties to employ them in their self-monitoring and reporting duties.6 International indicators primary function is to measure state progress7 in the realization of ESCR, using the examination of both qualitative and quantitative data. These potential international indicators are presently the source of much optimism in the human rights arena, as ESCR specialists believe the development of such indicators could further the implementation and operationalization of the Covenant, thereby strengthening the ESCR arm of the international human rights structure. This article argues that the potential benefits of the application of international ESCR indicators should encourage their development and that they should be derived, to the greatest extent possible, from the advanced legal framework already established under the Covenant. The article further suggests that the relationship between the development of international ESCR indicators and the continued development of the legal framework should be viewed as an ongoing, reciprocal process leading to the progressive refinement of both normative schemes. In Part Two, this article further explains how clarification of the Covenant has engendered the formation of initiatives to develop international ESCR indicators, describe these initiatives approaches to indicator development, and note considerations involved in devising a framework for international indicator development. Part Three discusses some of the expected outcomes and benefits driving the development of international indicators for ESCR. Part Four describes how current initiatives are using the ICESCR legal framework, as provided in the CESCRs General Comments and the Covenant, as a guide to international indicator development. It also argues that international indicators are most useful when they are clearly correlated to specific obliga-
6.
7.
This would most likely happen through the CESCRs inclusion of international indicators in the state reporting guidelines. These mandatory guidelines tell states parties which phenomenon they must measure and report on as part of their commitments under the ICESCR. ICESCR, supra note 3, arts. 1618; Revised General Guidelines Regarding the Form and Contents of Reports to Be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, adopted 17 June 1991, U.N. ESCOR, 12th Comm., 5th Sess., U.N. Doc. E/C.12/1991/1 (1991) [hereinafter Revised General Guidelines]. Measurements of state progress usually include both the extent to which states are meeting their obligations under the ICESCR, and the extent to which ESCR are realized by various segments of the population. See generally Revised General Guidelines, supra note 6.
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tions and goals under the Covenant. Part Five discusses ways in which international indicators may, in turn, influence ICESCR norm clarification. Part Six addresses some remaining issues and concerns related to the development and application of international indicators. II. IMPRoVED CoNCEPTUALIzATIoN oF THE ICESCR LEADING To THE CoNSIDERATIoN oF INTERNATIoNAL INDICAToRS The improved conceptualization of ESCR over the last fifteen years is the exciting and deliberate result of numerous actors contributions. These include the United Nations (UN) treaty bodies, other UN organs, such as the UN Commission on Human Rights and the Sub-Commission on the Promotion and Protection of Human Rights, academics, experts, nongovernmental organizations (NGOs) and, more recently, courts and regional judicial bodies.8 The CESCR, the UN body to which states report under the ICESCR, has contributed to the delineation of norms by making stricter Concluding Observations in its dialogue with states parties and by crafting increasingly sophisticated and precise General Comments, which elucidate the duties and framework of each of the rights.9 In doing so, the CESCR has deterred non-compliance and deepened the understanding of the obligations imposed.10 Experts from around the world created the Limburg Principles on the Implementation of Economic, Social and Cultural Rights11 and the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,12 which were later adopted by the CESCR as accurate interpretations of the Covenants obligations.13 The UN Commission on Human Rights and the Sub-Commission also have appointed special rapporteurs, such as the Special Rapporteurs for the Right to Housing, Right to Education, and Right to Food, who investigate implementation and violations of ESCR.14 This includes the Special Rapporteur on the Realization of Economic, Social and Cultural Rights. Scholars have focused their efforts on identifying clear violations and immediate obligations under the ICESCR, such as the minimum core obligations,15 to ensure that the duties can be operationalized.16 NGOs, possessing
8. 9. 10. 11. 12. 13. 14. 15. 16. chapman, supra note 5, at 67; magdalEna SEplvEda, thE naturE of thE obligationS undEr thE intErnational covEnant on Economic, Social and cultural rightS 11 (2003). SEplvEda, supra note 8, at 1112. Id. at 12. Limburg Principles, supra note 4. Maastricht Guidelines, supra note 4. Audrey Chapman & Sage Russell, Introduction, in corE obligationS: building a framEwork for Economic, Social and cultural rightS 4 (Audrey Chapman & Sage Russell eds., 2002). Id. See, e.g., corE obligationS: building a framEwork for Economic, Social and cultural rightS, supra note 13. chapman, supra note 5, at 7.
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a clearer understanding of the obligations required on behalf of the dutybearers under the Covenant, have invoked these legal obligations in their advocacy and analytical work on the ground. Groundbreaking case law has been created, as individuals with constitutionally protected economic and social rights have brought their grievances before national or regional courts, and these bodies have demonstrated that aspects of these rights are, in fact, justiciable.17 Thus, numerous parties have refined and illuminated Covenant obligations through direct and indirect actions on multiple fronts. Though states parties of the ICESCR are responsible for the development of ICESCR indicators,18 experts and entities in support of ESCR have increasingly endorsed the creation of international indicators, particularly in light of recent improvements to the ICESCR framework. Standardized international indicators represent a significant change from state-based indicator developmentall states parties to the Covenant would apply the same indicator set in their self-monitoring processes, as opposed to self-created indicator sets.19 The task of developing indicators was originally allocated to states for the flexibility it allowed states in the methods by which they provided for ESCR,20 the freedom to link indicators to already-existing domestic data collection structures, and the autonomy this gave states in their ICESCR compliance. Legal scholars, however, later questioned whether this autonomy and freedom resulted in states defining their Covenant obligations, a result inconsistent with international law.21 In the intervening period, the CESCR declared that it would not automatically accept states national indicators as the criterion for international assessment and it questions qualitative and quantitative state data that differs from other information sources.22 Nevertheless, the CESCR still relies heavily on states self-reports during its state dialogue.
17. See, e.g., Craig Scott & Philip Alston, Adjudicating Constitutional Priorities in a Transnational Context: A Comment on Soobramoneys Legacy and Grootbooms Promise, 16 S. afr. J. hum. rtS. 206 (2000); Republic of South Africa v. Grootboom 2000 (11) BCLR 1169 (CC). See generally Judicial protEction of Economic, Social and cultural rightS: caSES and matErialS (Bertrand G. Ramcharan ed., 2005). See The Right to the Highest Attainable Standard of Health, General Comment No. 14, adopted 11 May 2000, U.N. CESCR, 22d Sess., 43(f), U.N. Doc. E/C.12/2000/4 (2000), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, at 9798, U.N. Doc. HRI/GEN/1/Rev.8 (2006) [hereinafter Compilation]. Though the CESCRs revised reporting guidelines ask states to apply specific indicators from time to time (e.g., by requesting states to apply World Health Organization indicators in measuring and reporting on aspects of the right to health), the CESCR does not require the utilization of specific indicators for most other rights. See Revised General Guidelines, supra note 6. matthEw c. r. cravEn, thE intErnational covEnant on Economic, Social and cultural rightS: a pErSpEctivE on itS dEvElopmEnt 11819 (Ian Brownlie ed., 1995). See id. at 119 n.72. There is no power for a state to determine unilaterally the meaning of an ambiguous text. Id. Id. at 119.
18.
19.
20. 21. 22.
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Supporters of international ESCR indicators formed initiatives in recent years to work toward indicator development.23 These initiatives have involved a wide spectrum of participants from all levels of the international community, including Treaty Body and CESCR signatories, UN specialized agencies, Office of the High Commissioner of Human Rights (OHCHR) officials, special rapporteuers, representatives of intergovernmental organizations and state governments, international and national NGOs, academicians, and specialists. They appear to reflect a broadif yet incompleteconsensus on the respective advantages of international indicators for ESCR and the appropriate means for their development.24 Most initiatives have focused on the task of developing a set of international indicators for an individual right, or a related set of rights, under the Covenant. Initiatives have thus far investigated the development of international indicators for the right to education, adequate housing, water,25 food, and health.26 (One exception to this general rule is the Expert Meeting held in March 2005 in Turku, Finland, which sought to establish a general framework for the development of all future international human rights indicators.)27 Most global initiatives have assumed similar methodologies, however, typically deciding on a framework and categorical approach for indicator development, discussing important issues or complicating factors for realizing the particular right, surveying potential indicators, and, in the final stage, developing and testing a list of potential indicators for the right concerned.28 The ultimate objective of most initiatives is to finalize a set of
23.
24. 25.
26. 27. 28.
See, e.g., Workshop on Indicators to Measure the Progressive Realisation of the Right to Education, Organized by World University Service-International (9 May 1999); Consultation on Indicators for the Right to Health (15 May 2003); Experts Group Meeting on Housing Rights Monitoring, Organized by UNHCHR and UN-HABITAT (2628 Nov. 2003); Consultation on Indicators for the Right to Health (12 Apr. 2004); Expert Workshop on Right to Water, Organized by Heinrich Bll Foundation, Centre on Housing Rights and Evictions, and Bread for the World (2526 Oct. 2004); Turku Expert Meeting on Human Rights Indicators (1013 Mar. 2005). The author describes the consensus as incomplete because the CESCR has not yet adopted recommended indicator sets for use in the ICESCR Reporting Guidelines. See Revised General Guidelines, supra note 6. The right to water is an implied Covenant right. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). The Right to Water, General Comment No. 15, adopted 20 Jan. 2003, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 29th Sess., 3, U.N. Doc. E/C.12/2002/11 (2002), reprinted in Compilation, supra note 18, at 106. See initiatives cited supra note 23. rEport of turku ExpErt mEEting on human rightS indicatorS (2005), available at http://web. abo.fi/instut/imr/research/seminars/indicators/Report.doc. See initiatives cited supra note 23.
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international indicators for a particular right that may be adopted by the CESCR into its reporting guidelines.29 Numerous decisions and considerations must be made in the development and selection of international indicators, and data manageability is a significant restraint. It is vital that all states that have ratified the Covenant and beyond that, as many non-state actors as possibleare able to use developed indicators to attain a comprehensive, coherent picture of ESCR realization within a particular geographic area. Unfortunately, however, many developing countries are currently financially and technically incapable of fulfilling reporting requirements under the ICESCR, and they are particularly ill-equipped to provide necessary disaggregated data, or data capable of reflecting discriminatory treatment towards vulnerable groups and regions.30 These obstacles to ESCR measurement drastically limit the final number of international indicators that can be applied in practice.31 Modernization of data collection systems is a time-consuming and expensive process that would be necessary for states parties to accommodate new standardized indicator sets.32 Some experts have therefore suggested that it is better to limit the ultimate number of international indicators to an amount that is universally satisfiableor nearly satisfiablethan to develop a set of broad-reaching questions that will go unanswered or return incomplete data.33 Selected indicators will need to be limited in number, flexible
29.
30.
31. 32.
33.
See, e.g., world hEalth organization, dEpt of EthicS, tradE, human rightS and hEalth law, conSultation on indicatorS for thE right to hEalth: 15 may 2003 draft mEEting rEport (2004), available at www.who.int/entity/hhr/activities/en/indicator%20reportFINALnopartlst.pdf [hereinafter conSultation on indicatorS]; unitEd nationS human SEttlEmEntS programmE & ohchr, rEport of ExpErt group mEEting on houSing rightS monitoring (2003), available at http:// www.unhabitat.org/downloads/docs/3681_88724_EGMHousingRightsMonitoring-FINALREPORT.pdf [hereinafter EGM on houSing rightS]; world univErSity SErvicE-intErnational, rEport of thE workShop on indicatorS to mEaSurE thE progrESSivE rEaliSation of thE right to Education (1999). See also Kate Raworth, Measuring Human Rights, in pErSpEctivES on hEalth and human rightS 393, 39899 (Sofia Gruskin et al. eds., 2005); virginia roaf, aShfaQ khalfan & malcolm langford, cEntrE on houSing rightS and EvictionS, monitoring implEmEntation of thE right to watEr: a framEwork for dEvEloping indicatorS, global iSSuES papEr no. 14, at 2324 (2005), available at http://www.boell.de/alt/downloads/global/ righttowaterindicators.pdf [hereinafter global iSSuES papEr no. 14]. The human rights indicators proposed in this paper would be used primarily at the international . . . level. Id. at 24. The reporting requirements are prescribed by the CESCR in the General Comments, as well as in the Reporting Guidelines. See Revised General Guidelines, supra note 6. See, e.g., global iSSuES papEr no. 14, supra note 29, at 21. These difficulties are especially present with regard to the right to health. conSultation on indicatorS, supra note 29. global iSSuES papEr no. 14, supra note 29, at 21. The monitoring of the progressive realization of economic, social and cultural rights is extremely complicated and requires an enormous amount of good quality data. Victor Dankwa et al., Commentary on the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 20 hum. rtS. Q. 705, 706 (1998). global iSSuES papEr no. 14, supra note 29, at 21.
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enough to accommodate the varying circumstances of different states, widely applicable, and, in many cases, disaggregative. Initiatives have recognized they can minimize the expected expense of new indicators by using existing indicators and data when possible and sensible34 and requiring the disaggregation of data for a particular group only when the suspect group is relevant for the right in the concerned state. Burdens imposed by other human rights reporting obligations should also be considered.35 Fortunately, if a complete set of international ESCR indicators is developed, the efforts of all participating actorsincluding international funding agencies and NGOs concerned with ESCRcan focus on the task of updating data collection capacities for the chosen indicator set. Focusing international resources on a standardized ESCR monitoring system would be an unprecedented step towards ICESCR operationalization. III. ADVANTAGES To THE CREATIoN oF INTERNATIoNAL INDICAToRS FoR ECoNoMIC, SoCIAL, AND CULTURAL RIGHTS There is a strong trend toward the development of international indicators for ESCR,36 and while this trend is influenced by a wider movement to operationalize all human rights norms, many argue that international indicators hold particular promise for ESCR. Those encouraging the development of international indicators for ESCR expect them to improve the implementation and operationalization of the ICESCR by linking Covenant norms more clearly with state behavior and by informing and influencing state decision making to a greater degree than in the past. This section will identify many of the perceived benefits behind the push to create international ESCR indicators by separating these benefits into three levels of influence: the CESCR and treaty monitoring level, the state level, and the level of individuals and advocacy organizations.37 A. Benefits to the CESCR and the International Monitoring System International indicators are expected to benefit the international human rights system as well as facilitate international monitoring processes by increasing state compliance with the ICESCR and reinforcing the legality of
34. 35. 36. 37. conSultation on indicatorS, supra note 29, at 5; rEport of turku ExpErt mEEting on human rightS indicatorS, supra note 27, at 9. global iSSuES papEr no. 14, supra note 29, at 23. See, e.g., Raworth, supra note 29, at 395. Advocacy organizations refers to both NGOs and civil society organizations (CSOs).
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its norms. Kate Raworth notes in her article, Measuring Human Rights, that universal indicators would be a high-profile reinforcement of the claim that those human rights set out in international law are indeed universal.38 Standardizing these measurement systems communicates the international communitys resolve to precisely evaluate and reinforce state fulfillment of ICESCR commitments. Measurement standardization is also hoped to pressure ICESCR compliance by making states reports more easily comparable to one another. Placing states on a more level and visible playing field will increase the transparency of policymaking decisions and the respective outcomes. International indicators that ensure similar phenomena are measurable across states might also increase interstate peer pressure to provide better information. As Raworth explains, The more that providing a particular piece of data were seen as an international norm, the more political pressure there would be to conformand such pressure is extremely useful in ensuring greater provision of and access to information for citizens about the conduct of their own government.39 International ESCR indicators should also simplify the work of the CESCR treaty body, increasing the efficiency of the international monitoring system.40 James Crawford noted in The UN Human Rights Treaty System: A System in Crisis? that the committees are in a dilemma: they must give sufficient attention to individual reports and communications, whatever their source, while at the same time the number of states parties and of communications has increased and is increasing.41 The treaty bodys main task is the normative assessment of the data presented to them in the state party report and in other available sources.42 By standardizing the types of information the CESCR collects from states and non-state participants, international ESCR indicators will allow the body to execute more easily several tasks. One of the Committees most important tasks is the comparison of data submissions. The CESCR makes three types of data comparisons in its normative assessments, which help the treaty body to cross-reference, corroborate, and assess data patterns. One comparison is between states parties at similar levels of development. The CESCR compares state outcomes and
38. 39.
40. 41. 42.
Raworth, supra note 29, at 403. Id. The international community would eventually come to view these international indicators as international norms themselves, which would also pressure recalcitrant governments to provide data that they would not otherwise collect or make available. Id. In fact, the push towards international indicators for ESC rights is part of a wider movement to operationalize human rights under all current human rights treaty bodies through international indicator development. See EGM on houSing rightS, supra note 29, 2. James Crawford, The UN Human Rights Treaty System: A System in Crisis?, in thE futurE of un human rightS trEaty monitoring 1, 5 (Philip Alston & James Crawford eds., 2000). rEport of turku ExpErt mEEting on human rightS indicatorS, supra note 27, at 4.
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behavior to ascertain what level of progress is acceptable for a state member at its development stage. The CESCR employs this comparative information during the benchmarking stage of state dialogue43 and in its evaluation of the state progress during concluding observations. International indicators will facilitate the comparability of state-submitted data by standardizing the measurements by which they are obtained. Another important comparison the CESCR makes is between state and non-state submitted data. The CESCR uses NGO-submitted information and shadow reports to supplement and test state self-reporting.44 The alternate data sets help the CESCR to determine whether the state is disclosing all relevant information in its report and whether the information submitted is accurate. While NGOs and CSOs act as important data providers, sharing their data with national governments and in shadow reports to the CESCR, the information they submitted could be more easily collated and compared with the data in other NGO and state-submitted reports if they were to also use international indicators in their ESCR monitoring operations.45 A third comparison the CESCR makes is among state reports submitted at periodic intervals. These comparisons allow the CESCR to determine whether a state is progressively realizing the rights in the Covenant and whether it is taking retrogressive measures with respect to particular rights or population groups. As international indicators standardize the information collected and submitted to the CESCR, they will make the CESCRs task of comparing submitted data sets more straightforward. This facilitation of data set comparison should, in turn, simplify the CESCRs work. International indicators will simplify CESCR monitoring by allowing the CESCR to analyze information under one indicator set as opposed to 150. A standardized system will hopefully streamline the monitoring process to give the CESCR more time to attend to other projects, such as helping orga-
43.
44.
The CESCR uses benchmarks to determine whether the state is meeting its goals to progressively realize ESCR. The CESCR and states work together, in a process called scoping, to reset these benchmarks on a regular (five-year) basis when the state comes before the CESCR for evaluation. States parties are to indicate in their reports their assessments, review their choice of indicators, and outline the remedies they apply where the population is not enjoying an adequate standard of living. global iSSuES papEr no. 14, supra note 29, at 11; conSultation on indicatorS, supra note 29, at 8, 15. NGO Participation in Activities of the Committee on Economic, Social and Cultural Rights, adopted 11 May 1993, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 8th Sess., U.N. Doc. E/C.12/1993/WP14 (1993).
National bench-marks are used not so much as a definitive means of assessment, but rather as an indication of whether the state party is taking its international obligations seriously. The success of this strategy, however, is crucially dependent upon access to reliable alternative sources of information against which the State reports may be balanced.
45.
cravEn, supra note 20, at 119. Currently, compatibility problems make the data difficult to use.
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nizations to understand and apply ESCR indicators in their own monitoring, accountability, and transparency-building efforts. Finally, the use of carefully chosen ESCR indicators will increase the quality and comprehensiveness of information received by the CESCR in each state report.46 The final set of indicators should be selected for its ability to best ascertain the current realization of ESCR, given stated limitations. Overall comprehensiveness of state reports will also be improved by the increased disaggregation of data. Thus, standardized international indicator sets will streamline and simplify the Committees task of comparing data sets while increasing the quality and comprehensiveness of state reports. B. Benefits to States Parties The primary duty-bearer under the ICESCR legal framework is the state. As ratifier of the Covenant, states parties have willfully accepted and legally committed themselves to executing Covenant obligations. While the presence of this legal commitment makes meeting Covenant objectives mandatory for states parties, many ESCR proponents have stepped away from the adversarial, dyadic relationship to recognize the importance of supporting, encouraging, and assisting states parties in fulfilling ICESCR obligations.47 The international community has increasingly recognized that states parties often lack technical information, as opposed to willpower, in ESCR fulfillment, and they are increasingly seeking opportunities to educate and support states in meeting ICESCR commitments.48 Not only do international ESCR indicators have the potential to bring states parties increased technical assistance, the highlighting of these potential benefits is an important part of the cooperative approach between the Covenant monitors, rights-holders, and duty-bearers. International ESCR indicators have the potential to bring significant benefits to states parties. First, international indicators can improve the quality and comprehensiveness of collected data through the employment of carefully selected indicator sets.49 (Focusing on the most carefully selected, disaggregated, and revealing indicators provides states with more accurate
46. 47. 48. 49.
See Raworth, supra note 29, at 403. Alicia Ely Yamin, The Future in the Mirror: Incorporating Strategies for the Defense and Promotion of Economic, Social, and Cultural Human Rights into the Mainstream Human Rights Agenda, 27 hum. rtS. Q. 1200, 1204 (2005). Id. at 1224. Raworth notes that [t]he quality and extent of information given in state party reports is currently highly variable, and as a part of strengthening and standardizing the reporting system, universally applicable indicators would be a desirable way of increasing the quality of information presented in every report. Raworth, supra note 29, at 403.
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and comprehensive data than they currently possess.)50 By improving the accuracy and comprehensiveness of data relating to the status quo, international indicators assist states parties in better understanding the current situation, including the consequences of current policies. By providing feedback on the outcomes of state policy, international indicators can inform decision making and suggest areas for future policy change at the government level. Raworth notes that international indicators could show the status of a particular human rights situation, reveal whether a situation is getting better or worse owing to a policy change, and guide the formation of better policy.51 Such information can also direct a states attention to underestimated areas of need, by providing disaggregated breakdowns of rights realization among varying segments of the population. Illuminating the current conditions will thus help state members to better understand the consequences of their policy decisions as well as how they might improve their ability to satisfy ESCR commitments. Improving states parties ESCR monitoring systems will also enable states to meet more easily other ESCR obligations. The CESCR observed in its first General Comment that accurate state reporting serves seven major objectives under the ICESCR.52 A few of these include the duty to create a plan of action for realizing the rights, to provide low-cost targeted programs to marginalized groups or regions, to meet minimum core obligations, and to refrain from taking retrogressive measures with regard to any of the rights. The increased level of disaggregation within proposed international indicator sets will also help states parties assess the degree to which they have facilitated ESCR realization among their most vulnerable and marginalized persons, another obligation under the Covenant.53 Meeting the requirements
50.
International indicators are intended to generate the maximum amount of information regarding realization of the rights. Thus, in regard to the right to food,
[o]ne of the most pressing tasks is to identify the hungry and the particular causes of their hunger. . . . Precise identification . . . of the food-insecure or vulnerable groupswho they are, where they are located and the particular causes underlying their vulnerabilitywill vastly improve the possibility of developing precise and appropriate responses to those particular situations.
51. 52. 53.
The Right to Adequate Food and to be Free from Hunger: Updated Study on the Right to Food, submitted by Mr. Asbjrn Eide in Accordance with Sub-Commission Decision 1998/106, U.N. ESCOR, Commn on Hum. Rts., 51st Sess., Agenda Item 4, 97, U.N. Doc. E/CN.4/Sub.2/1999/12 (1999). Raworth, supra note 29, at 395. Raworth also notes that for this to be true, [t]he assessment needs to reveal the conduct of the government, give an indication of what action is required . . . and be responsive to changes in that conduct. Id. at 400. Reporting by States Parties, General Comment No. 1, adopted 17 Feb. 1989, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 3d Sess., at 8789, U.N. Doc. E/1989/22 (1989), reprinted in Compilation, supra note 18, at 1011. The Covenant obligates states to obtain this level of ESCR awareness concerning the status of worse-off persons. For a state to avoid collecting such detailed information regarding worse-off persons is a violation of the Covenant. Id. at 88, reprinted in Compilation, supra note 18, at 10.
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under the Covenant is more difficult for a state when it is unaware of where it is failing to meet its own ESCR commitments, or failing to successfully implement its own policies. A state can also use the comprehensive and evidence-based objective data that international indicators provide54 to defend against unrealistic and externally imposed expectations. In this sense, international indicators might support states assertions about the complexity and difficulty of policy-making and draw attention to necessary trade-offs.55 Improved transparency and comparability in data sets will allow the international community to better understand the obstacles states parties face, giving way to increased, targeted international assistance. States could even use the goal of standardizing data collection systems to argue for international assistance under Article 2(1) of the ICESCR, which contains a legal commitment from developed states to assist developing states in fulfilling ICESCR obligations.56 In a similar vein, local governments could apply the data to argue for increased support from their national governments.57 As international indicators make interstate comparisons more straightforward through measurement standardization, such comparisons can lead to the creation of best practice lists that facilitate exchange of information and technical expertise among states.58 The CESCR notes in General Comment 1 that one objective of state reporting is to develop a better understanding of the common problems faced by States and a fuller appreciation of the type of measures which might be taken to promote effective realization of each of the rights contained in the Covenant.59 Such knowledge will assist states in enacting policies and programs that provide for ESCR. While this article does not discuss all potential advantages to states parties of the ICESCR arising from the development of international indicators, others are imaginable and should be considered. One is the potential
54. 55. 56.
57. 58.
59.
See Yamin, supra note 47. See also global iSSuES papEr no. 14, supra note 29, at 18 ([H]uman development indicators neither provide disaggregated information nor assess governance related obstacles in the area of water supply and sanitation.). Id. at 2122. Very few governments of developing countries have the financial or technical capacity to collect the amount of disaggregated data that are required by the human rights approach. Id. at 21. See also chapman, supra note 5, at 5. The term available resources found in Article 2(1) refers not only to national resources but also to international ones. It includes international assistance and cooperation, especially economic and technical. ICESCR, supra note 3, art 2. See also cravEn, supra note 20, at 14647. See Raworth, supra note 29, at 395. Reporting by States Parties, supra note 52, at 89, 9, reprinted in Compilation, supra note 18, at 11. Raworth notes, [f]inally, universal indicators would enable cross-country comparisons, which are useful for evaluating the effects of different policy stances in otherwise similar countries. Raworth, supra note 29, at 40304. Reporting by States Parties, supra note 52, at 89, 9, reprinted in Compilation, supra note 18, at 11.
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political payoff to governments who demonstrate a commitment to the social and economic welfare of their citizens by supporting the development and application of international indicators. Supporting international indicators is one way for states parties to respond to increased demand at the international and local level for transparency and accountability. Additionally, by participating in the development of international indicators, governments can help to ensure that the developed indicators will fairly represent their own efforts to provide for ESCR.60 C. Benefits to Advocacy organizations and Individuals International indicators will benefit individuals and ESCR advocacy organizations in four main ways: by identifying and drawing attention to marginalized and vulnerable groups, by substantiating claims relating to ESCR violations, by lending further transparency to public decision making, and by promoting public participation and involvement in government monitoring. First, disaggregated data derived from the use of international indicators will identify, to a greater degree, marginalized individuals and groups and illuminate their situation. The presence of such objective and verifiable data will support individuals and organizations calls for increased resources while drawing attention to areas of need. Not only will this information be communicated to the international community through state reports, NGOs and CSOs will, as they have in the past, increase the publics exposure to this information through advocacy efforts. NGOs and CSOs have found they can overcome the reluctance of states and their own constituents through the provision of objective data and empower vulnerable groups through dissemination of this information. Thus, international indicators resulting in disaggregative and comprehensive data will bring increased validity and merit to claims made by individuals and organizations advocating for increased ESCR. While it is true that rights-based approaches are . . . concerned with the principles of equality, equity, and non-discrimination, these principles are often domestically unpopular.61 Thus, groups pushing for fuller implementation of ESCR require tools and systems at their disposal to educate the public and to pressure policy-makers towards greater provision of ESCR. By
60. Raworth notes that the difference between an obligations approach and an enjoyment (outcomes) approach makes a large political difference especially to developing countries. She notes that an obligations approach allows a new government to be credited for improvements to a pre-existing underdeveloped situation. Raworth, supra note 29, at 402. Craig G. Mokhiber, Toward a Measure of Dignity, in pErSpEctivES on hEalth and human rightS, supra note 29, at 383, 388.
61.
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making the effects of certain policies, such as budget expenditure decisions, clear, and the duty-bearers more visible and accountable through outcome measurement, international indicators empower the public at large with new information.62 The accessibility of objective data lends credence to human rights claims and allows NGOs and CSOs to more poignantly criticize government action and withstand scrutiny in their allegations. Statistics can also focus policy on particular issues in ways that case studies or less scientific methods cannot.63 For example, statistical data can attack a range of pervasive myths, such as those concerning institutional culture. Revealing the truth behind scapegoat remarks promotes greater political participation and raises expectations that things can be better than they are. Finally, the development of international ESCR indicators hopes to promote greater participation in state monitoring efforts. As one expert on the right to housing has observed, Accurate and effective monitoring requires the active participation of affected sectors, either directly or through representative NGOs.64 The self-refining aspect to the use of international indicators means that as the data enables a new level of understanding among experts and the general public, a new order of inquiry will be created. This order of inquiry, or enlightened interest in ESCR issues, will lead to increased participation in the monitoring of government behavior and policy and greater public awareness of ESCR. The public pressure generated and imposed on the state by an informed public with increased oversight eventually shapes and reforms government behavior. Thus, by providing the public with better information on ESCR, the use of international indicators will enhance public understanding, increase demand for even better information, and heighten the publics expectations for ESCR fulfillment. IV. THE ICESCR AS A LEGAL FRAMEWoRk FoR INDICAToR DEVELoPMENT
The overall utility of a particular indicator will depend largely on its intended use.65
A comprehensive and elucidated ICESCR legal framework is critical to the development of international ESCR indicators. International indicators
62. 63. 64. 65. NGOs can also monitor for indirect or latent discrimination with regard to government allocation of resources. For example, inappropriate health resource allocation can lead to discrimination that may not be overt. See Yamin, supra note 47, at 120406. Maria Socorro I. Diokno, Monitoring the Progressive Realization of Housing Rights, focuS (Asia-Pacific Human Rights Information Center, Osaka, Japan), June 1999, available at http://www.hurights.or.jp/asia-pacific/no_16/no16_monitoring.htm. The New International Economic Order and the Promotion of Human Rights: Progress Report Prepared by Mr. Danilo Trk, Special Rapporteur, U.N. ESCOR, Commn on Hum.
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depend on the legal framework for their legal and authoritative legitimacy, and indicators maintain this legitimacy by linking directly to the Covenant. Though most initiatives have developed indicators within the ICESCR legal framework, they have applied different categorical approaches in translating Covenant norms into indicator sets. International ESCR indicators are effective and legally legitimate to the extent they are derived from obligations and standards in the ICESCR legal framework. The normative structure of the ICESCR lends legitimacy to the development of international indicators by providing a consensual, legal basis for declaring a certain set of conditions immoral or unacceptable. International indicators are intended to comment on the extent to which a state is satisfying Covenant obligations; thus, they maintain their legitimacy insofar as they clearly link to Covenant requirements and support legal conclusions.66 The legal legitimacy of human rights indicators distinguishes them from developmental indicators and attaches a rule of law imperative to their use. A clear, conceptual understanding of the ICESCR legal substance and framework is a precondition to the development of ESCR indicators. Katarina Tomase vski notes that, [m]onitoring necessitates a conceptual framework to define what to monitor before one can proceed to discuss how and move to the design of indicators.67 A conceptual framework provides a structure for location and prioritization of indicators, which is vital to the development of indicators that will measure what is intended. The ICESCR, for example, distinguishes between immediate and core obligations and duties that may be progressively realized. Clearly prioritizing the legal obligations contained within the Covenant framework helps to establish the priority these corresponding indicators should receive in development and implementation. An agreed-upon, standardized framework additionally guards against the selection of indicators that are irrelevant, repetitive, or inconsistent with other Covenant provisions.68 For many of these reasons, the OHCHR has
Rts., 42d Sess., Agenda Item 7, 14, U.N. Doc. E/CN.4/Sub.2/1990/19 (1990). The foremost consideration in adopting a methodology for identifying and building human rights indicators, or for that matter any set of indicators is its relevance and effectiveness in addressing the objective(s) for which the indicators are to be used. Rajeev Malhotra & Nicolas Fasel, Quantitative Human Rights Indicators - A Survey of Major Initiatives 29 (3 Mar. 2005), available at http://www.jus.uio.no/forskning/grupper/humrdev/ProjectIndicators/Workshop06/Background/Malhotra&Fasel.pdf. See also unitEd nationS dEvElopmEnt programmE (undp), human dEvElopmEnt rEport 2000, at 89105 (2000). The further indicators stray from the norms they are meant to measure, the less legal authority they retain. See chapman, supra note 5, at 4. Katarina Tomase vski, Indicators, in Economic, Social and cultural rightS: a tExtbook, supra note 1, at 531. Paul Hunt, Special Rapporteur for the Right to Health, has noted that, in order for an indicator to be convincing as an indicator of an ESC right, [t]he relationship between indicator and norm has to be reasonably close and precise. The Right of Everyone to Enjoy the Highest Attainable Standard of Physical and Mental Health, U.N. GAOR, 58th Sess., Agenda Item 117(c), 11, U.N. Doc. A/58/427 (2003).
66. 67. 68
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urged that all developed indicators for substantive ESCR be anchored in a coherent, conceptual framework.69 Basing international indicators in a human rights framework, specifically, brings advantages but also requires the consideration of additional factors. Human rights indicators focus on whether duty-bearers are fulfilling their legal obligations under the human rights treaties in addition to measuring the expansion or reduction of human capabilities.70 While human development indicators often focus only on human outcomes and inputs, human rights indicators also monitor legal and administrative processes.71 Such monitoring requires additional information on violations and processes of justice, including the presence of relevant judicial institutions and legal frameworks. Furthermore, an ICESCR framework also requires the collection of disaggregated data. As described by the Human Development Report of 2000, there is an even greater emphasis on data that are disaggregatedby gender, ethnicity, race, religion, nationality, birth, social origin and other relevant distinctions.72 Because the ICESCR defines right fulfillment often by the status of the most marginalized and vulnerable, the framework requires indicators capable of registering these groups ESCR enjoyment levels. The CESCR noted in General Comment 1, for example, that the obligation to monitor rights enjoyment requires that special attention be given to any worse-off regions or areas and to any specific groups or subgroups which appear to be particularly vulnerable or disadvantaged.73 International ESCR indicators should thus reflect the principled priority a human rights framework places on the legality of duty-bearer behavior, the impact of legal and administrative processes, and the situation of the marginalized and least well-off. While most international ESCR indicator initiatives agree on the significance of the ICESCR framework,74 and recognize that a structural framework
69. world hEalth organization, dEpt of EthicS, tradE, human rightS and hEalth law, conSultation on indicatorS for thE right to hEalth: 12 april 2004 mEEting rEport 8 (2004), available at http://www.who.int/hhr/activities/Report%20indicatorsmtg04%20FINAL.pdf. See also undp, supra note 65, at 92. For example, Maria Green describes a human rights indicator as a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation. Maria Green, What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement, 23 hum. rtS. Q. 1062, 1065 (2001). undp, supra note 65, at 91. Id. Reporting by States Parties, supra note 52, at 88, reprinted in Compilation, supra note 18, at 10. See also Asbjrn Eide, The Use of Economic Indicators in the Practice of the Committee on Economic, Social and Cultural Rights, in Economic, Social and cultural rightS: a tExtbook, supra note 1, at 548. A well thought through approach is . . . needed to translate the normative content of the human rights framework into operational elements that [can] directly contribute to identification and selection of suitable indicators for human rights monitoring. Id. at 26. See, e.g., world univErSity SErvicE-intErnational, supra note 29. See also EGM on houSing rightS, supra note 29, 2.
70.
71. 72. 73.
74.
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is critical for the development of legally justifiable and prioritized indicator sets, they disagree as to which approach best translates Covenant norms into actual indicators. Translation of norms is usually performed by the application of a categorical approach, or a systematic breakdown of the ESCR framework. The imposed categories subdivide rights into manageable parts from which indicators are derived. This section will discuss four categorical approaches adopted by indicator development initiatives: the analytical categories approach; the obligations approach; the tripartite typology approach; and the merged approach. The analytical categories approach was first proposed by Paul Hunt, Special Rapporteur for the Right to Health, and it draws upon widely understood indicator types. The three categories of indicators it employs are Structural, Process, and Outcome.75 Structural indicators ask about the policy environment in a state and whether it is conducive to the realization of economic, social, and cultural rights. They are qualitative indicators that monitor whether and to what extent the state has put in place necessary laws, policies, and institutions in order to deliver upon a human rights obligation.76 Though structural indicators usually ask yes or no questions, i.e., whether a particular law, policy, or institution exists, they are accompanied by a description of how that structures characteristics support ESCR.77 Process indicators are quantitative indicators that measure the degree to which activities necessary to the realization of rights occur in a particular state or region.78 They monitor . . . effort, not outcome.79 Outcome indicators, on the other hand, measure results. They indicate the extent to which ESC rights are experienced (or not experienced) by individuals in their daily lives, and seek to reflect the interrelated processes that collectively determine an outcome.80 The main advantage of an analytical categories approach is its comprehensive focus on government actions intended to impact ESCR and their results. This approach allows for linkage of policy and outcome in ESCR fulfillment. A second approach is the obligations approach, which formulates categories from specific obligations under the ICESCR.81 The obligations approach focuses on the extent to which states and duty-bearers are meeting their obligations under the Covenant. Indicators are selected that best measure the degree to which key obligations and their attributes are filled. One of the main benefits to an obligations approach is its ability to measure right
75. 76. 77. 78. 79. 80. 81. The Right of Everyone to Enjoy the Highest Attainable Standard of Physical and Mental Health, supra note 68, 15. global iSSuES papEr no. 14, supra note 29, at 910. See id. at 10. The Right of Everyone to Enjoy the Highest Attainable Standard of Physical and Mental Health, supra note 68, 26. Id. Id. 28. See global iSSuES papEr no. 14, supra note 29, at 10.
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fulfillment.82 In their efforts to reach a legal conclusion, however, obligations indicators may overlook the duty-bearers attempts to meet its commitments and why its efforts have failed.83 The obligations approach may be the best position, however, to take advantage of the Covenants recent clarification. The CESCR delineated key attributes for each right in its efforts to clarify the Covenant. Most ESCR are now separable into legal elements.84 In recent years, for example, the CESCR has defined the key attributes of adequacy, availability, accessibility, and quality (AAAQ) as they pertain to many of the rights.85 Included in the right to adequate housing, for example, are the elements of legal security of tenure; available services,86 materials, facilities, and infrastructure;
82. 83.
84.
85.
86.
See id. To see how one initiative has applied the obligations approach to the development of indicators, see EGM on houSing rightS, supra note 29. This initiative focused on the normative contents of two General Comments: Right to Adequate Housing in General Comment No. 4 and on Forced Evictions in General Comment No. 7 as well as on information already requested by the reporting guidelines. These elements allow for the development of detailed rights-specific indicators. See The Right to Adequate Housing, General Comment No. 4, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 6th Sess., U.N. Doc. E/C.12/1991/4 (1991), reprinted in Compilation, supra note 18, at 1924; The Right to Adequate Housing: Forced Evictions, General Comment No. 7, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 16th Sess., U.N. Doc. E/C.12/1997/4 (1997), reprinted in Compilation, supra note 18, at 4651; The Right to Adequate Food, General Comment No. 12, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 20th Sess., U.N. Doc. E/C.12/1999/5 (1999), reprinted in Compilation, supra note 18, at 6371; The Right to Education, General Comment No. 13, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 21st Sess., U.N. Doc. E/C.12/1999/10 (1999), reprinted in Compilation, supra note 18, at 7186; The Right to the Highest Attainable Standard of Health, supra note 18, reprinted in Compilation, supra note 18, at 86105. See also Asbjrn Eide, The Use of Economic Indicators in the Practice of the Committee on Economic, Social and Cultural Rights, in Economic, Social and cultural rightS: a tExtbook, supra note 1, at 550. The AAAQ standards are newer, pragmatic, and detailed additions to the CESCRs General Comments, and the Committee has emphasized their importance. For example, the CESCR has stressed that the right to housing must be read as referring not just to housing but to adequate housing. The Right to Adequate Housing, supra note 84, 7, reprinted in Compilation, supra note 18, at 20 (emphasis added). The CESCR also notes that when considering the appropriate application of these interrelated and essential features the best interests of the student shall be a primary consideration. The Right to Education, supra note 84, 7, reprinted in Compilation, supra note 18, at 73. The CESCR has stated that a states educational system in all its forms and at all levels shall exhibit the following interrelated and essential features: availability, accessibility, acceptability, adaptability. Id. 6. The CESCR notes that the rights to higher, secondary, fundamental, and primary education include these elements. Id. 8, 11, 17, 21. To illustrate the essential elements standard, see, for example, id. 50. See also Green, supra note 70, at 1073 (discussing the analytic framework employed by Katarina Tomase vski, former Special Rapporteur on Primary Education). Among the services listed are sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services. The Right to Adequate Housing, supra note 84, 8(b), reprinted in Compilation, supra note 18, at 21.
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affordability; habitability; accessibility; location and cultural adequacy.87 The Committee further defines the meaning of these terms in the General Comments and sometimes uses the AAAQ standards to cite relevant dutybearers88 and vulnerable groups.89 The significance and value of the newly delineated norms is clear, and should inform the creation of indicator sets linking closely with the Covenant. While the Committees delineation of legal elements makes the derivation of international indicators quite feasible, it is important that indicators based on the obligations approach go beyond naming and shaming to suggest steps for future improvement. A third approach is the tripartite typology approach. The tripartite typology approach is based on the human rights typology model first suggested by Henry Shue in the early 1980s.90 The tripartite typology has evolved over time, but its fundamental categories include the state obligations to Respect, Protect, and Fulfill human rights obligations.91 These categories are equally relevant for civil and political rights, and they impose both affirmative (positive) and negative (passive) obligations.92 The Respect category of the tripartite typology approach requires the state to refrain from interfering with citizens pursuit of their human rights.93 The Protect category requires the state to prevent human rights violations by third parties, including private persons and entities.94 The Fulfill category requires the state to take measures to improve citizens equal access to the rights.95 The Fulfill category was later bifurcated into the obligations to Facilitate and Provide.96 The tripartite typology approach makes the provision of ESCR easier to comprehend by construing state duties in the fulfillment of ESCR in a way that makes them easily comparable to the duties applied under the civil and political rights framework. One of the difficulties with this approach,
87. 88. Id. 8. The Committee has also stated that the concept of adequacy in the right to food serves to underline a number of factors which must be taken into account in determining whether particular foods or diets that are accessible can be considered the most appropriate under given circumstances. The Right to Adequate Food, supra note 84, 7, reprinted in Compilation, supra note 18, at 65. With the right to housing, the Committee has even noted groups that are particularly vulnerable with regard to these standards. The Right to Adequate Housing, supra note 84, 13, reprinted in Compilation, supra note 18, at 23. The Right to Adequate Housing: Forced Evictions, supra note 84, 11, reprinted in Compilation, supra note 18, at 48. SEplvEda, supra note 8, at 157. See hEnry ShuE, baSic rightS, SubSiStEncE, affluEncE and u.S. forEign policy 52 (1st ed. 1980). SEplvEda, supra note 8, at 157. Id. at 158. undp, supra note 65, at 93. See id. See id. The Right to Adequate Food, supra note 84, 15, reprinted in Compilation, supra note 18, at 66.
89.
90. 91. 92. 93. 94. 95. 96.
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however, is that while it considers the state obligations toward ESCR fulfillment, the framework it imposes is quite different from that of the ICESCR. Prioritization and translation of norms thus becomes more difficulteven when Covenant norms are translated into the duties to Respect, Protect, and Fulfill, it is difficult to determine which duties require immediate fulfillment under the Covenant and which deserve to be evaluated by the progressive realization standard.97 A final categorical approach to the development of international indicator sets is the merged approach. Staff of the Center on Housing Rights and Evictions (COHRE) demonstrated how such an approach could be employed in their framework paper on indicators for the right to water.98 In this paper, COHRE merged two categorical approachesthe obligations approach and the analytical categories approachto form a categorical framework that measures ESCR fulfillment more comprehensively than a single approach. COHRE derived right to water indicators from state obligations under the ICESCR (obligations approach) but also identified and labeled the indicators as Structural, Process, and Outcome (analytical categories approach).99 This method ensured that the developed indicators linked directly to the Covenant obligations but also contained information on legal and administrative infrastructures, processes, and outcomes. This mixed approach, when applied correctly, seems to combine the best aspects of multiple categorical approaches to indicator development, leading to a more comprehensive indicator set. Though complex, the merged approach may compensate for weaknesses present in any one particular categorical approach and help to settle disputes as to which categorical approach is best. V. INTERNATIoNAL INDICAToRS CoNTRIBUTIoNS To THE ICESCR
[T]hough the need to carry out baseline assessments, to elaborate policies and identify priorities is clearly understood in development, it is much less understood in human rights.100
Not only does the ICESCR legal framework direct and inform the development of indicators for ESCR, the development of those indicators will advance and
97.
98. 99. 100.
The ICESCR includes obligations from each category of the tripartite typology; however, it does not necessarily require the state to immediately meet its obligations under each of these categories for a specific right. Many such obligations, particularly those that would come under the duty to Fulfill, are subject only to the progressive obligation clause in Article 2. To see how the tripartite typology can be used to locate human rights indicators, see undp, supra note 65, at 9395. global iSSuES papEr no. 14, supra note 29, at 10. Id. at 11. Tomase vski, supra note 67, at 539.
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inform the clarification, practicality, and relevance of the Covenant.101 In providing the CESCR with a clearer and more accurate picture of the status quo, international indicators will empower the treaty body to create norms and suggest benchmarking targets that are more consistent with current state practice. As the CESCR and interested parties gain a better understanding, through budget analysis, adjudication, and better monitoring of how state policymaking processes can better support the realization of ESCR, the CESCR can set forth more precise and informed prescriptions. Better understanding the state of affairs will help the CESCR to distinguish more clearly between outcomes for which a state bears responsibility (violations) and those outside of a states control (non-violations). Oft-cited criticism of the Covenant is that its obligations are based on unrealistic expectations that are not adequately prioritized.102 The more the CESCR can do to combat these perceptions, the more states parties will accept the Covenant as a legitimate and authoritative legal regime. The heightened level of sophistication, relevance, and pragmatism within the ICESCR legal regime, which the CESCR will gain from the application of international indicators, will contribute to the Covenants image as a working document with perceived and real significance for those who will employ it. The all appropriate means standard is a textual example of how the ICESCR could be clarified through the use of international indicators. Article 2 of the Covenant states, Each State Party to the present Covenant undertakes to take steps . . . to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.103 The appropriate means standard has been interpreted in a variety of ways, but it has not yet generated clear meaning through scholarship. While some scholars suggest that the appropriate means requirement demands the state to take particularly suitable, specific, or effective steps to realize ESCR, others argue that a simple reasonableness test applies. Craven has noted, for example, that five ICESCR articles contain direction as to the means that should be used to realize the rights.104 The CESCR has stated that the means of implementation chosen must be adequate to ensure fulfilment
101.
102. 103. 104.
Danilo Trk, Special Rapporteur for Economic, Social and Cultural Rights, noted in 1990 that social and economic indicators could assist in developing clarity with regard to ESC rights. The New International Economic Order and the Promotion of Human Rights, supra note 65, 7. See, e.g., Robert E. Robertson, Measuring State Compliance with the Obligation to Devote the Maximum Available Resources to Realizing Economic, Social, and Cultural Rights, 16 hum. rtS. Q. 693 (1994). ICESCR, supra note 3, art. 2, 1 (emphasis added). [A]rticles 6(2), 11(2), 12(2), 13(2), and 15(2) all contain some indication of the methods by which the State should realize the rights. cravEn, supra note 20, at 116.
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of the obligations under the Covenant105 and has, at times, examined the actual consequences of states policies in its Concluding Observations.106 Simultaneously, the Limburg Principles, adopted by the CESCR as an accurate interpretation of Covenant obligations, declare that the means must be consistent with the nature of the rights in order to fulfil their obligations under the Covenant.107 This consistency requires that such measures are targeted to vulnerable populations, are non-discriminatory in effect, and allow for a participatory process.108 The CESCR, furthermore, asks states reports to discuss not only the measures that have been taken but also the basis on which they are considered to be the most appropriate under the circumstances.109 Others have argued that states only have the burden of proving that the measures taken are reasonable in light of their specific circumstances.110 Aspects of Committee practice support this interpretation, toostates are evaluated in accordance with their own level of development and complicating factors,111 not in comparison to countries significantly more or less developed or with substantially different political or cultural characteristics.112 Unlike stricter interpretations, this definition of appropriateness provides states with a margin
105. The Domestic Application of the Covenant, General Comment No. 9, adopted 1 Dec. 1998, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 19th Sess., 7, U.N. Doc. E/C.12/1998/24 (1998), reprinted in Compilation, supra note 18, at 56 (emphasis added). SEplvEda, supra note 8, at 33738. Limburg Principles, supra note 4, princ. 17. See also SEplvEda, supra note 8, at 336. The Committee has also declared that the means should produce results that are consistent with the full discharge of its obligations by the State party. The Domestic Application of the Covenant, supra note 105, 5, reprinted in Compilation, supra note 18, at 56. See, e.g., cravEn, supra note 20, at 12022. One example of an inappropriate measure would be health resource allocation . . . disproportionately favour[ing] expensive curative health services . . . accessible only to a small, privileged fraction of the population. The Right to the Highest Attainable Standard of Health, supra note 18, 19, reprinted in Compilation, supra note 18, at 91. Craig Scott and Philip Alston have applied the appropriateness standard to the South African Constitutional Courts famous decision in Grootboom, saying, If some 900 persons, whose desperate need is not contested, are barely within the purview of all of the relevant programmes there would seem to be a clear failure either of rationality or of good faith in the design of those programmes. Scott & Alston, supra note 17, at 266; Republic of South Africa v. Grootboom 2000 (11) BCLR 1169 (CC). The Nature of States Parties Obligations, General Comment No. 3, adopted 1314 Dec. 1990, U.N. ESCOR, Comm. on Econ., Soc. & Cult. Rts., 5th Sess., 4, U.N. Doc. E/ C.12/1990/8 (1990), reprinted in Compilation, supra note 18, at 16 (emphasis added). SEplvEda, supra note 8, at 337. See global iSSuES papEr no. 14, supra note 29, at 2021. Note, this flexibility takes into account the many cultural, historical, religious and developmental distinctions between states possessing the same legal obligations. Dankwa et al., supra note 32, at 716. See SEplvEda, supra note 8, at 337. Each State Party has to devise its own measures, in accordance with . . . its financial resources, national legal system, population, geographic distribution of the population, natural resources and the existence of other international obligations. Id. at 336. The phrase all appropriate measures was left intentionally flexible to accommodate states in different levels of development with different legal, social, and economic systems and circumstances. cravEn, supra note 20, at 11516.
106. 107.
108.
109. 110. 111. 112.
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of discretion in deciding the appropriate course of action to be taken.113 It is apparent that the appropriateness standard requires further definition and clarification, informed by the provision of new information concerning the feasibility of particular state measures. In the future, perhaps the CESCR will enforce a more stringent definition of appropriateness, one that will require the utilization of best practices when feasible.114 Evidence of this emerging standard already exists in Committee practice; the CESCR requires compelling justification whenever the means used to satisfy the Covenant differ significantly from those used with other human rights treaties, including the International Covenant on Civil and Political Rights.115 Asbjrn Eide has discovered that [t]he obligation of progressive achievement does not only refer to an increase in resources, but even more to an increasingly effective use of the resources available, which must be optimally prioritized to fulfil the rights listed in the [ICESCR].116 These examples demonstrate that, in the future, appropriateness might require methods that guarantee more than minimum rationality, suitability, or even effectiveness. Regardless of the legal norm selected, such clarification is best accomplished through the collection of accurate data that illuminate how state policies affect ESCR outcomes. More comprehensive data might show that the effectiveness of state measures is contextual, or reliant on the combination of factors that make states unique. On the other hand, the data might reveal certain techniques to be more effective in realizing ESCR, regardless of a states situation. Either way, more information in the form of objective data that indicates what is happening on the ground is required before the best legal norm under the ICESCR can be selected. VI. CHALLENGES AND CoNTRoVERSIES IN THE CREATIoN oF INTERNATIoNAL INDICAToRS The development of international indicators for ESC rights carries great promise for furthering their implementation, realization, and expansion,
113. 114. cravEn, supra note 20, at 116. [I]n principle a State may choose between legislative, administrative, judicial, social, educational, or other methods to undertake the realization of the rights. Id. at 115. [W]e know from health research and experience that not all interventions are equal. . . if the human right in question is the right not to die an avoidable death in pregnancy and childbirth, then the first line of appropriate measures that will move progressively toward the realization of the right is the implementation of [emergency obstetric care]. L.P. Freedman, Using Human Rights in Maternal Mortality Programs: From Analysis to Strategy, 75 intl J. gynEcology & obStEtricS 51, 56 (2001). The Domestic Application of the Covenant, supra note 105, 7, reprinted in Compilation, supra note 18, at 56; International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171. Asbjrn Eide, Economic and Social Rights, in human rightS: concEpt and StandardS 109, 126 (Janusz Symonides ed., 2000).
115.
116.
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but is not without obstacles and potential negative externalities. This article leaves the negative externalities of indicator development mostly unaddressed, recognizing that they deserve a thorough and separate analysis. There are, however, some concerns relating to the development of international ESCR indicators. These include the following: the threat they pose to states decision making autonomy,117 that they represent another top-down approach to human rights,118 and their potential inflexibility, or inability to accommodate the diverse contexts and challenges faced by states in different stages of development, political systems, cultural landscapes, etc.119 Other concerns relate to the potential misapplication of comparative information, in a way that will be damaging for developing states. Misapplication of the Covenant and international indicators could lead to the shaming of states that display poor performance on international comparisons, even when their governments have legitimate justifications for struggling with the targets. While these points of concern are raised primarily as examples, the development and future application of international indicators should reflect an awareness of potential pitfalls that may accompany their use. Much has also been written on the difficulty of creating indicator sets that can measure necessary phenomenon and indicate areas for future improvement. Illustrative of further obstacles that remain in the creation of international indicators is a quotation from Maria Diokno, who has written on the subject of monitoring progressive realization and housing rights:
While indicators can be used to measure both a certain situation and changes concerning the situation of housing rights, indicators . . . contain weaknesses that need to be rectified if indicators are to be incorporated more thoroughly into the realm of human rights. Weaknesses or imperfections of indicators include: lack of available and/or reliable statistics; incomplete or out-dated sources; utilization of inappropriate indicators; apparent contradictions between certain indicators; frequent and almost standard use of estimates where precise figures are unavail-
117.
118.
International indicators could present a threat to states decision making autonomy by directing which phenomena within a state is measured and improved and, depending how each indicator is constructed, be used to impose strict international standards regarding state behavior. These indicators qualify for the critique of being top-down because they establish measurement norms at the international level as opposed to through a participatory process at the local level. One should note, however, that one of the intentions behind their use is to gain a better understanding of what is happening at the local level. For a strong critique of the top-down approach in human rights and development, the author recommends william EaStErly, thE whitE manS burdEn: why thE wEStS EffortS to aid thE rESt havE donE So much ill and So littlE good (2006).
[F]or human rights indicators to be meaningful, acceptable, and effective in meeting the objectives for which they are deployed, it is essential that they are contextually relevant. . . . It becomes essential . . . that the conceptual and the methodological approach adopted to identify and build human right indicators allows for the flexibility to contextualize indicators.
119.
Malhotra & Fasel, supra note 65, at 25.
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able; use of improper or inconsistent criteria and methodologies in the selection of indicators; limitation of cross temporal comparability; use of indicators of a percentage type which can create difficulties in terms of how to measure growth or change; necessity of relying upon nationally collected indicators which, if such statistics are used in a human rights framework of assessment, may result in biased figures; and lack of disaggregated statistics.120
This admittedly critical passage is included to observe that the challenges to the development of international indicators are continuing and controversial, and that their development occurs in this present context. Nonetheless, data elicited through the use of international indicators, though imperfect, will still represent a leap forward in quality of information as compared to the current approach. As the Covenant allows states parties to improve the realization of ESCR gradually, subject to the progressive realization standard, the development of the Covenant itself must also be allowed to proceed subject to a progressive realization standard, keeping an eye on the benefits expected from progressive development. While the criticisms and challenges to the creation of international indicators for ESCR are informative, they do not justify allowing the international community to remain uninformed about the deficiency of ESCR protection and access around the world. Lack of sufficient information regarding ESCR is attributable to opaqueness in the current state member monitoring system, lack of transparency in government decision making, and intentional inaccessibility of information and statistics on ESCR provision in many member states. To the degree that international ESCR indicators can increase the visibility of government decision making, beget feedback through the use of monitoring mechanisms, and generate statistics relating to the enjoyment of ESCR by increasing and enhancing the flow of information to national citizens and the international community, international indicators will certainly significantly further both the implementation and operationalization of economic, social, and cultural rights.
120.
Diokno, supra note 64, at 1.

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