Kenneth Roth, “ Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26 (2004), excerpt | Samuel Moyn | August 15, 2016


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Kenneth Roth, “ Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26 (2004), excerpt

Kenneth Roth, “Defending Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization,” Human Rights Quarterly 26 (2004), footnotes omitted

In my view, to shame a government effectively—to maximize the power of international human rights organizations like Human Rights Watch—clarity is needed around three issues: violation, violator, and remedy. We must be able to show persuasively that a particular state of affairs amounts to a violation of human rights standards, that a particular violator is principally or significantly responsible, and that a widely accepted remedy for the violation exists. If any of these three elements is missing, our capacity to shame is greatly diminished. We tend to take these conditions for granted in the realm of civil and political rights because they usually coincide. For example, one can quibble about whether a particular form of mistreatment rises to the level of torture, but once a reasonable case is made that torture has occurred, it is fairly easy to determine the violator (the torturer as well as the governments or institutions that permit the torturer to operate with impunity) and the remedy (clear directions to stop torture, prosecution to back these up, and various prophylactic measures, such as ending incommunicado detention).

In the realm of ESC rights, the three preconditions for effective shaming operate much more independently. (For these purposes, I exclude the right to form labor unions and bargain collectively since while codified in the International Covenant on Economic, Social and Cultural Rights (ICESCR), this right functions more as a subset of the civil and political right to freedom of association.) 8 I accept, for the sake of this argument, that indicia have been developed for subsistence levels of food, housing, medical care, education, etc. 9 When steady progress is not being made toward realizing these subsistence levels, one can presumptively say that a "violation" has occurred.

But who is responsible for the violation, and what is the remedy? These answers flow much less directly from the mere documentation of an ESC rights violation than they do in the civil and political rights realm. For example, does responsibility for a substandard public health system lie with the government (through its corruption or mismanagement) or with the international community (through its stinginess or indifference). If the latter, which part of the international community? The answer is usually all of the above, which naturally reduces the potential to stigmatize any single actor.

Similar confusion surrounds discussions of appropriate remedies. Vigorously contested views about "structural adjustment" are illustrative. Is structural adjustment the cause of poverty, through its forced slashing of public investment in basic needs, or is it the solution by laying the groundwork for economic development? Supporting evidence can be found on both sides of this debate. When the target of a shaming effort can marshal respectable arguments in its defense, shaming usually fails.

The lesson I draw from these observations is that when international human rights organizations such as Human Rights Watch take on ESC rights, we should look for situations in which there is relative clarity about violation, violator, and remedy.

Broadly speaking, I would suggest that the nature of the violation, violator, and remedy is clearest when it is possible to identify arbitrary or discriminatory governmental conduct that causes or substantially contributes to an ESC rights violation. These three dimensions are less clear when the ESC shortcoming is largely a problem of distributive justice. If all an international human rights organization can do is argue that more money be spent to uphold an ESC right—that a fixed economic pie be divided differently—our voice is relatively weak. We can argue that money should be diverted from less acute needs to the fulfillment of more pressing ESC rights, but little reason exists for a government to give our voice greater weight than domestic voices. On the other hand, if we can show that the government (or other relevant actor) is contributing to the ESC shortfall through arbitrary or discriminatory conduct, we are in a relatively powerful position to shame: we can show a violation (the rights shortfall), the violator (the government or other actor through its arbitrary or discriminatory conduct), and the remedy (reversing that conduct). …

If one accepts that international human rights organizations like Human Rights Watch are at our most powerful in the realm of ESC rights when we focus on discriminatory or arbitrary conduct rather than matters of pure distributive justice, guidance for our ESC work is provided. An important part of our work should be to shape public opinion gradually so that it tends to see ESC issues not only in terms of distributive justice but also in terms of discriminatory or arbitrary conduct. For example, governments' failure to provide universal primary education would seem to be a classic case of distributive justice—there is not enough money to go around, so governments cannot provide education to all children. Human Rights Watch is considering a project that would focus on the practice of funding education in such circumstances through school fees. We would hope to argue that this is a discriminatory and arbitrary way of funding education because it has the foreseeable effect of excluding children from poor families. If we succeed in promoting this perspective, we hope to transform the debate from one on which international human rights organizations have had little if any impact to one in which our ability to stigmatize and hence shape public policy on education would be much enhanced.


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August 15, 2016

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Samuel Moyn

Harvard Law School

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