Reclaiming Universal Economic and Social Rights in a Convulsed Legal and Economic Order

What elements of human rights need to be better protected? The author proposes that a higher standard of economic, social, and cultural rights need to be protected along with civil and political rights. Examples in terms of a right to housing prove fruitful examples of such development.

“All human beings are born free and equal in dignity and rights”. This is the opening statement of the 1948 Universal Declaration of Human Rights (UDHR), later ratified in the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICCPR and ICESCR). Despite the significant ‘corpus’ of human rights norms and practice generated since, we know from the factual reality that this universal promise has not been realized in many areas, and particularly in the field of social and economic rights.

This mismatch becomes evident, for example, amid the current process of confronting the COVID-19 pandemic: health-care systems that exclude people’s access to healthcare on the basis of resources, employment and/or immigration status expose the pressing need for articulating systems that respect, protect and guarantee the universal human right “of everyone to the enjoyment of the highest attainable standard of physical and mental health”, among other steps, through the “prevention, treatment and control of epidemic…diseases” and the creation of conditions “which would assure to all medical service and medical attention in the event of sickness”, in terms of article 25 of the UDHR and article 12 of the ICESCR.

In spite of the fact that global socio-economic inequality translates into undignified and life-threatening conditions for millions of persons around the world, including in developed countries, according to Margot Salomon, to speak of international law and human rights is often to evoke thoughts of countering terrorism or justifying humanitarian intervention, and what remains overlooked is that the machinery of international law applies to matters of world poverty, inequality and development, as they are also issues of “international law and human rights”.[i]

Situations of material deprivation and socio-economic inequality, however, do not only affect economic, social and cultural rights (ESCR); they are often also determined along lines of race, gender, sexual orientation, age, disability, ethnicity, migratory, refugee or statelessness status. Rather, poverty, social exclusion and marginalisation have many faces, they cut through the whole set of human rights and they are deeply related to the rights to equality and non-discrimination and to the right of access to justice.

At this confluence, the entry into force, on 5 May 2013, of the Optional Protocol to the ICESCR (OP-ICESCR), which gave the UN Committee on ESCR the legal competence to review individual communications and to initiate inquiry procedures, opens a door to legal interpretations that may better capture the breadth and width of this relationship, and transcend the traditional human rights divide of civil and political/ESCR.

Bridging the gap between CP and ESCR rights

Through the OP-ICESCR, all of the rights encompassed in the two main human rights treaties, and which were all recognized on equal footing since the UDHR, may enjoy equivalent international defence. The OP-ICESCR sets forth a procedure of communications by individuals or groups of individuals relating to the violation of ESC Rights, similar to that existing for the ICCPR. It also instituted an inquiry procedure in the face of grave or systematic violations of those rights, analogous to those employed by the Committee against Torture or the Committee on the Elimination of Discrimination against Women (a procedure not used so far by the ESCR Committee). Although ESCR had often been seen as aspirational, mere goals, not full autonomous rights,[ii] with the adoption of the OP-ICESCR, the historic gap between the mechanisms for international legal protection of civil and political rights and those of economic, social and cultural rights is narrowed, recognizing their interdependence and overlap.

On the right to housing

The following cases, stemming from the individual communications procedure, and dealing with the right to housing, equality and non-discrimination, clearly illustrate the previous point. In the cases of Mohamed Ben Djazia and Naouel Bellili (MBD and NB), and Maribel Viviana López Albán, both against Spain – the first EU Member State to have ratified the OP-ICESCR – and both concerning the right to housing, the UN Committee has yielded some stirring interpretations.

In MBD and NB v Spain, decided in 2017, the Committee reviewed the case of the applicants and their two minor children (one and three years old), who were evicted from the room they had rented in Madrid after their private rental contract expired. MBD had repeatedly applied for social housing for 12 years, and his request had been denied each time. The Committee found a violation of the right to adequate housing and concluded that any eviction of tenants from private rental accommodation must comply with the right to adequate housing, particularly in contexts of vulnerability, as in this case, which involved two children.

The Committee also pointed out that States must be able to justify broader measures impacting on the right to housing, including the sale by the Community of Madrid of public housing stock to private investment funds in the middle of a severe economic crisis. In other words, the Committee questioned the State’s economic policy and reversed the burden of proof – it was not the applicant who had to prove the violation, but rather the State who had to prove compliance with the ICESCR. As an interesting feature, not particularly common among UN human rights bodies, the reparations determined by the Committee followed the traditional form of compensation, but the Committee also concluded Spain needed to set forth guarantees of non-repetition, as a form of reparation that would transcend the individual violation suffered by the claimants and address the broader structural conditions that allowed such violation to occur.

Similarly, in López Albán v. Spain, decided in October 2019, the Committee reviewed the case of Mrs. López Albán, a Spanish national of Ecuadorian origin, who lived with her six children in an apartment in Madrid. After having paid rent regularly for a year, Mrs. López Albán stopped paying when she found out that the supposed landlord was a fraudster. The financial entity that actually owned the apartment reported her for illegal occupation and, due to that, she was denied social housing, and left in a dead end. Finally, the family was evicted without adequate alternative accommodation. Notably, the Committee in this case recognized how the rules of access to social housing caused “stigmatization and systemic discrimination of those who live in poverty”.

The decisions are delivered in a context of intense social mobilisation for the right to housing in Spain and legislative proposals for reforms in this area. The ESCR’s Committee’s positions have sparked a legal debate regarding the character of decisions taken by human rights treaty-monitoring bodies as a result of individual communication procedures, particularly in light of a Supreme Court sentence of 2018 affirming the legally binding nature of a CEDAW Committee’s decision. Also discussed is the question of whether interim measures requested by human rights bodies during the procedure to avoid irreparable harm (e.g., suspending an eviction), are compulsory or not under the domestic legal order.

Moving forward

The UN ESCR Committee’s recent decisions also serve to highlight the immediately applicable (and not progressively realisable) obligation of non-discrimination in relation to all ESCR. The decisions also emphasize how socio-economic condition acts as a ground for discrimination often overlooked by literature, i.e., being more vulnerable to human rights violations or discriminated against, because of living in poverty. This surely does not exclude or minimize intersectional discrimination or cumulative forms of exclusion or violence, but rather sheds light on how poverty and socio-economic inequality, in and of themselves, are forms of structural vulnerability that place people at a higher risk of suffering human rights violations and may even constitute actual violations of those rights. In this context, the Committee’s perspectives invite for a deeper reflection on state (and non-state) obligations of prevention, attention and reparation of ESCR violations, and for the toolkit human rights law can construct to tackle them.

Reclaiming economic, social, and cultural rights

Indeed, as illustrated by recent action of the petitioners and social organizations that motivated the cases before the ESCR Committee, and by this body’s incipient jurisprudence, reclaiming ESCR through these new avenues may trigger a conceptual and practical development of these rights, as has ensued over the years with civil society, academia and UN treaty-body engagement with civil and political rights or women’s rights. These fresh considerations on ESCR also offer promise for reframing the terms of public debate at the national and local level, and galvanizing awareness for understanding poverty and inequality as issues of rights.

Ultimately, it may blaze the trail for human rights, and particularly ESCR, to shape national constitutional and legislative debate and to become policy-prescriptive in matters impacting on the rights of all persons to live free from fear, from want and in dignity.

[i] Salomon, Margot E., “The future of human rights”, in Global Policy, Volume 3, Issue 4, November 2012, p. 455.

[ii] See ,e.g., Asbjorn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Economic, Social and Cultural Rights: A Textbook 21, 22 (Eide et al. eds., 1995) (discussing justiciability and State obligations), pp. 21-22

About the author

Dorothy Estrada-Tanck
Dorothy Estrada-Tanck is Assistant Professor of International Law and International Relations at the University of Murcia, Spain, and Director of the Legal Clinic of its Faculty of Law. She holds a PhD in Law from the European University Institute, an MSc in Political Theory from the LSE, and a law degree from Escuela Libre de Derecho (Mexico City).

Estrada-Tanck was an O’Brien Fellow in Residence at the McGill University Centre for Human Rights and Legal Pluralism in early 2020, and is currently a Visiting Fellow at the Harvard Human Rights Program.


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