Alex Neve, Secretary General
Amnesty International Canada
The first line of the pledge that is at the heart of the Dignity for All Campaign says it very clearly, succinctly and powerfully: I believe that freedom from poverty is a human right. That it is. And it is not just about believing that freedom from poverty is a human right. Nothing to believe about it friends. Freedom from poverty is a human right.
The world’s human rights treaties and declarations make that very clear, going back more than six decades to the Universal Declaration of Human Rights in 1948. So we do not need to believe it …. we need to simply look to the very words that governments have put to paper.
Freedom from poverty is a human right. Though it is never stated in those precise terms. It begins with the vision that guided the process of drafting and agreeing to the Universal Declaration, in 1948. It was a vision rooted in US President Franklin Roosevelt’s famous 1941 “four freedoms” speech. And so, in the opening paragraphs of the Universal Declaration, we find the eloquent proclamation that “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.” Freedom from want …. the highest aspiration of the common people.
And it bears remembering what time this was. It was 1948, only three years after world governments had agreed to set up the new United Nations. Governments and peoples around the world were still reeling from the horror, misery and suffering of the Second World War and the Holocaust. Among the many agonies endured by people during those years of war was devastating deprivation and poverty. And as leaders assembled to craft a new world order they had the foresight and the courage to know that regard for human rights had to be at the very core of that new vision, a vision that included freedom from want.
Beyond those stirring opening words and global recognition of freedom from want ….. the Declaration goes on to deal with the key challenges that lie behind “want”. Everyone has the right to social security. The right to work and to have protection against unemployment. The right to an adequate standard of living. To food; clothing; housing and medical care. Everyone has the right to education which shall be free, at a minimum, at elementary school level. And perhaps, in many respects, the most important right of all when it comes to keeping people free from want – the right to be protected from discrimination, the right to enjoy all rights equally, regardless of who you are.
So you need not just believe it. In 1948 governments made it very clear freedom from poverty – freedom from want – is absolutely a human right; a right that will be realized by protecting and upholding so many other rights … including rights to food, housing, health care, education and work.
The human rights vision was a strong one in 1948. Then politics got in the way.
For when governments took the next step of translating the inspiring aspirations of the Declaration into a binding, legal treaty, human rights discourse became polarized and politicized. It was the time of the Cold War – and the US and its allies on one side, and the Soviet Union and its allies on the other, took their disagreements to every front imaginable. And human rights were no exception. Soon the US bloc had become the champions of what came to be known as civil political rights – often simplistically thought of as the things a government cannot do to you – the rights to be protected from torture, from restrictions on free expression, from unfair trials and arbitrary imprisonment. And it was the Soviet bloc that took up the cause of economic, social and cultural rights – again very simplistically thought of as the things government must do for you – keep you housed, fed, healthy and educated.
It is without a doubt one of the great misfortunes in the global human rights story that rights were divided and categorized in this way. A misfortune because the very essence of human rights surely must be how fundamentally intertwined and interconnected they are. And this is likely no clearer than when it comes to thinking about poverty. Poverty does not come about simply because someone’s right to work is not vigorously promoted; or because their right to adequate housing is disregarded. Rather, poverty – in Canada and around the world is almost always a toxic stew of human rights violations:
- violations of rights to food, housing and health care, which may deprive individuals of the resources that can be the lift out of poverty;
- violations of rights to freedom of expression, access to information, and the ability to mobilize, assemble and organize which thwart the ability of impoverished communities to control their lives, assert their power and be part of making decisions about their own welfare and future;
- violations of rights associated with safety, security, and an impartial justice system, all of which can be and are used to terrorize, suppress and instill fear in poor people, so that they will not challenge the status quo that keeps them poor; and
- violations of crucial equality and non-discrimination rights – for women, racial minorities, Aboriginal peoples, persons living with disabilities, migrants and so many other vulnerable and marginalized groups, whose inequality inevitably fuels and deepens poverty.
So it was a misfortune and terribly wrong-headed to carve rights up in the first place. And it is the latter rights, economic, social and cultural rights, which truly were the casualty of that politicized global bickering. In the rhetoric and positions taken by western governments, certainly including Canada, these fundamental rights – rights at the very heart of the concept of “freedom from want” in the Universal Declaration – were denigrated and downgraded to second-class status. Not like other rights. More akin to social policy goals, and government budgetary decisions. Nothing you could take to court and enforce in the same way you could force a judge to free someone who had been wrongly imprisoned.
As a result, governments crafted two treaties – dealing separately with the two bundles of rights. The International Covenant on Civil and Political Rights on the one hand and the International Covenant on Economic, Social and Cultural Rights on the other. The Universal Declaration’s vision of rights was certainly not one of separation and division. But that is the road governments went down. The two Covenants were agreed to by the United Nations in 1966. Canada became a party – to both of them – ten years later, in 1976; nearly 35 years ago.
While it was an unfortunate turn for governments to divide rights in this way – the International Covenant on Economic, Social and Cultural Rights is nonetheless a forceful legal instrument that further solidifies that rallying cry of the Dignity for All Campaign – that freedom from poverty is a human right. The Covenant gives greater detail and specificity to the rights recognized in the Universal Declaration – housing, livelihood, education, health-care, and more. And recognizing that for some governments there may be significant financial cost to fully and truly upholding some of these rights, the Covenant crafts some key principles that determine how governments are to take up their responsibility to address poverty.
- There can be no discrimination in protecting economic, social and cultural rights. They cannot be withheld or limited because of someone’s gender, nationality, political views or any such similar grounds.
- Governments are obliged to make constant progress forward in upholding economic, social and cultural rights. This year should be better than last; and the year to come better yet again. It is a forward journey – not standing still and certainly not moving backwards.
- Governments must use maximum available resources in safeguarding economic, social and cultural rights. Second-best solutions are not acceptable. Governments must go as far as their means allow.
- There is recognition that each right carries a core minimum obligation, regardless of available resources, regardless of how much progress is or is not being made. So when it comes to health care, for instance, there is a right to ensure essential, life-saving, primary health care.
- And finally, there is an expectation that richer countries will assist poorer countries in strengthening their protection of economic, social and cultural rights. International cooperation is fundamental to the global vision of protecting ESC rights.
As time went by, governments agreed to a whole host of other human rights treaties, declarations, resolutions and other documents – many of which deal directly with economic, social and cultural rights issues. This includes treaties dealing with the rights of women, children, migrant workers and persons living with disabilities. All of those human rights instruments recognize that economic, social and cultural rights are central to ensuring the well-being and safety of the groups those treaties are concerned with – and thus contain important provisions dealing with employment and health care rights for women; education and social security for children; housing rights for persons living with disabilities; and much more.
But what has become with time is that the real challenge lies in pressing governments to live up to the fine words and delivering the promises. The real challenge lies in enforcing these rights.
UN human rights bodies have highlighted a number of areas of concern when it comes to protecting economic, social and cultural rights in Canada. As I’ll highlight in a moment, the problem does not lie in identifying the problem and naming it as a human rights concern. The problem lies in getting the Canadian government to take it seriously and comply. Of course Canada is not the only nation with a yawning gap between words and action. But we certainly are a nation with a yawning gap.
- In 2008, the CEDAW called on Canada to establish minimum standards for social assistance programs across the country to ensure that funding of such programs meets the needs of the most vulnerable groups of women, including single mothers, aboriginal women, Afro-Canadian women, immigrant women, elderly women and disabled women.
- In 2007 the Committee on the Elimination of Racial Discrimination called on Canada to take measurers to reduce unemployment among minority groups, particularly among African Canadians and aboriginal peoples.
- In 2006 the Committee on Economic, Social and Cultural Rights had numerous recommendations for Canada when it carried out its five year review of Canada’s ESC record. This included a call to eliminate gaps in the area of poverty, assess the extent to which poverty is a discrimination issue in Canada, provide adequate childcare services for working women, ensure minimum wage levels in Canada are adequate, improve access to employment insurance benefits, ensure equal pay for work of equal value, conduct a detailed assessment of the impact of reduced federal social transfers on the standard of living of people living on welfare, ensure social assistance levels guarantee an adequate standard of living, eliminate the claw back in the national child benefit scheme, intensify efforts to address food insecurity in Canada, implement a national strategy for the reduction of homelessness, improve access to higher education on a non-discriminatory basis, and give special attention to the health risks faced by homeless girls.
- And in 2005 Canada’s human rights record under the International Covenant on Civil and Political Rights was reviewed by the UN Human Rights Committee. Given my earlier comments about the sharp, cruel division between CP rights and ESC rights we might expect that the HR Committee had very little to say about issues related to poverty. But the UN human rights experts are on to the fallacy of these distinctions. So in its review the HR Committee called on Canada to “adopt remedial measures to ensure that cuts on social programmes do not have a detrimental impact on vulnerable groups.”
That gives you a flavor of some of the concerns associated with poverty highlighted by UN level human rights committees when they carry out their periodic reviews of Canada. Those committees review Canada’s record usually every four or five years.
Let me note two other important sources of UN human rights advice to Canada when it comes to addressing poverty and better protecting ESC rights. There are a number of special human rights experts tasked with responsibility for specific human rights concerns at international level. As part of their work they carry out occasional visits to countries around the world and issue fairly detailed reports and recommendations in the wake of those visits. That includes Canada. So in the past several years, among other experts, the Special Rapporteurs (as they are known in UN speak) who deal with housing, the rights of Indigenous peoples and racism have all visited Canada. And they have all made extensive recommendations to the Canadian government touching on such concerns as homelessness, access to adequate health care and education, employment discrimination, social assistance programs and other issues directly related to poverty.
Finally, a world about the newest review process to be instituted within the UN human rights system, known as the Universal Periodic Review, carried out by the recently established UN Human Rights Council. What is notable about this process, compared to all of the others is that this review is carried out by governments, not by independent experts and committees. And the final report coming out of the review is limited only to those recommendations that the country being reviewed – Canada for our purposes – has agreed to and accepted. Obviously we are concerned about all of the recommendations that a country decides to toss to the side. However, there is undeniably something qualitatively different about UN recommendations that a country has specifically accepted. It remains to be seen whether that means governments will or will not take the results of the review any more seriously. But it certainly does make things different.
Canada’s UPR happened last year, 2009 – and ESC related concerns were very much on the table. Some were turned down by the Canadian government. For instance a very sensible recommendation that Canada develop a national strategy to eliminate poverty was rejected by the government with the trite assertion that addressing poverty is the domain and responsibility of the provincial and territorial governments. On the other hand, Canada accepted several recommendations which were directed at reducing homelessness in the country including to extend and enhance a national housing program.
So there we have it. A range of important, constructive recommendations to Canada from a range of UN human rights experts and other governments touching on fundamental issues related to poverty, including social assistance, homelessness, employment, and the situation of groups particularly vulnerable to poverty.
The problem rests in ensuring implementation and compliance. Not a uniquely Canadian challenge I assure you. The world is replete with governments who fail to put human rights commitments and rhetoric into practice. But there are two very problematic obstacles we face when it comes to ensuring implementation of ESC related recommendations in Canada: the first is the complexities – some real, some very much overstated – of federalism; the second is the government’s clear disinterest and dislike for the notion that ESC rights are rights which can and must be enforced. Enforcement is a challenge with all rights but all the greater with ESC rights, particularly with governments like our own, who are determined to relegate them to the back of the human rights bus.
So let me end with some observations and thoughts about enforcement on three fronts.
First, is our Canadian legal framework – most particularly the Charter of Rights and Freedoms. What does Canada’s pre-eminent human rights document have to say about the right to be free from poverty – or the protection in a wider sense of economic, social and cultural rights. Unfortunately the Charter is silent – at least in explicit terms. There is no section that specifies that everyone has the right to be free from poverty; no sections laying out rights to an adequate standard of living, adequate housing, or essential health care. There is, however, section 7 of the Charter – the right to life, liberty and security of the person. Surely that has a great deal to say about poverty, particularly when it comes to security of the person. After all, is poverty not one of the most egregious manifestations of insecurity?
The Canadian government is certainly not of that view – and whenever court cases have been brought forward, the government has strenuously pushed back, arguing that section 7 does not include protection of economic and social rights. To date, sadly, the courts have sided with the government. Most notably back in 2002 in the Gosselin case, the Supreme Court, considered whether a Quebec welfare law in the 1980’s that provided individuals under the age of 30 with roughly 1/3 the rate of welfare payments provided to individuals over the age of 30, violated s. 7. The Court – not unanimously – ruled that it did not.
The Court concluded that s. 7 appplies only to what the state is not allowed to do to individuals, and has not yet been interpreted to include a positive obligation as to what the state has to do for individuals – in other words, s. 7 would constrain a police officer from torturing someone but does not oblige the government to provide any particular level of welfare assistance to that same person. Disappointing. But, the Court did leave things open for another day, highlighting that this is something that could change and develop with time. The Chief Justice says it quite plainly: “one day s. 7 may be interpreted to include positive obligations.” One day, but not yet. Clearly we need to make it clear that that day is now here.
That’s enforcement domestically. Now, here’s a word about enforcement internationally. The international human rights system is notoriously weak on the implementation front – and relies largely, almost entirely on the will and good faith of governments to do what they have pledged. Over the years and decades there have been small gains in introducing greater enforcement mechanisms. One has been to make it possible for individuals who believe that their rights have been violated and who have not been able to obtain redress at national level, to make a complaint at UN level and have it adjudicated by experts. A bit like going to court, but the outcome is not a binding court decision. Not binding but a pretty powerful international level statement about someone’s rights being violated and an expectation that the violation will be remedied.
For the longest time this option only existed for rights in the civil and political sphere. It simply was not possible to make an international level complaint that your economic, social and cultural rights had been violated, even though protection of those rights had been enshrined in a UN treaty since 1966. That changed in 2008, finally, after years of very difficult negotiations among governments. The UN adopted a new procedure, through an Optional Protocol to the ICESCR, making it possible to bring complaints about violations of housing rights, health care rights, complaints about access to food or education, to the UN’s expert Committee on Economic, Social and Cultural Rights. That is, as long as your government has accepted the jurisdiction of the Committee by signing on to this new Optional Protocol. Over a year later, 31 countries have signed on, but not Canada. Not Canada. Not Canada but the list does include other wealthy western nations, such as Belgium and the Netherlands, Italy, Finland and Portugal.
But not Canada. So why not Canada? What we hear from the Canadian government on this is that there is absolutely no intention to sign on to the Optional Protocol in the near, medium or long-term future. The reason, the same old line about these being different kinds of rights, not susceptible to court challenges and complaints in the same way as other rights are. The result: not only do we deny an important possible remedy to people in Canada who experience violations of their economic, social or cultural rights – we fail to demonstrate leadership to the rest of the world as to how important these rights are and how vital it is to ensure that they are fully respected and upheld. Here is another front where we must be active. We must make it clear that Canadians expect and Canadians demand that their government signs on to this important human rights instrument.
Let me end with one final enforcement challenge. A few moments ago I outlined, in very broad strokes, some of the important recommendations UN human rights experts have already made to Canada – going back many years in fact. As I went through the list I’m sure most of you were making mental notes – that hasn’t happened, that hasn’t happened, nope, that hasn’t happened. So why not, what happens to these important UN recommendations and why doesn’t Canada act quickly when the UN speaks?
The problem here friends is that we have a top-secret, poorly coordinated and completely unaccountable system in this country when it comes to ensuring we comply with our international human rights recommendations. One might think that the process of figuring out how to take up UN suggestions about something so fundamentally important to all of us as human rights are, would be a matter of clear public record and vigorous political debate. Quite the contrary. The systems in place, to the extent that there are any, are out-dated and ineffective. There is a secretive process that allows mid-level government officials a chance to get together and discuss matters. Their deliberations, even their agenda, are considered top secret and never released to the public – they are discussing our rights, but we don’t get to know about it. But beyond that secrecy, there is nothing that brings officials together – regularly – at political level in this country to talk about these issues. In fact, the last time FPT ministers in Canada got together to talk about human rights was 1988, more than two decades ago. That is unacceptable. We need a whole new approach. And it is likely more important for economic, social and cultural rights than for other rights – because those are the rights that touch very much both on federal and provincial responsibility. That is where the battles and disagreements between governments will arise. That is certainly where the buck-passing back and forth will take place. All of that needs to be open to the public and debated in a responsible, well-coordinated way between and among governments.
So let me end where I began.
I believe that freedom from poverty is a human right.
Absolutely. Governments have told me so.
I believe also that the right to be free from poverty must be enforced and upheld.
In Canada we need to move forward in at least four critical respects.
First we need to hear from governments, all governments across the country, unequivocal recognition that economic, social and cultural rights are rights of equal value and worth as all rights.
Second it is time to open up real possibilities to enforce economic, social and cultural rights before courts, tribunals and commissions in Canada, including through the Charter of Rights.
Third, Canada must sign on to the new Optional Protocol to the ICESCR and show the world that we are prepared to stand behind esc rights and ensure that they are fully enforced.
And fourth, let’s end the secrecy and confusion when it comes to governments in Canada working together to uphold our international human rights obligations including those obligations central to freeing Canadians from poverty. Its time for a new system for implementing human rights obligations in Canada that is transparent, well-coordinated and politically accountable.
We believe. Now lets make it so.