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Food and health are rights too

Sunday September 27 2009

One would be forgiven for thinking that about half of our Cabinet was in New York this past week.

Ostensibly, the ministers, assistant ministers and various official hangers-on were attending the United Nations General Assembly Special Session — this year focused on climate change.

In truth they, like most of the world, were there because this was the US President Barack Obama’s first UNGASS (as these things are called in diplo-speak) — one which he used to place America back on a multilateral path.

Of course, they could not all access the UN. Obama’s presence meant that access was tighter than ever before.

It seemed that all of New York’s police force was stationed around the UN.

By all accounts, Obama’s speech was well received by his peers and the global media.

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While he did not say much new on climate change, he clearly acknowledged that the unilateral path followed by the previous administration had done little to endear the US to the rest of the world.

Interestingly, however, his speech was far less well received by the US media.

The Right trotted out all of its usual paranoid nonsense about American sovereignty.

And the Centre was lukewarm — while criticising the Right’s now apparently instinctive knee-jerk reaction to anything that Obama does or says.

An indication of just how parochial large swathes of the American population are.

Away from Obama’s near celebrity status, the UNGASS also saw the opening for signature of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights.

One of the key international human rights treaties, the ICESCR was pushed for largely by newly independent states emerging from colonialism, who believed that the human rights encapsulated in the International Covenant on Civil and Political Rights would only have meaning if accompanied by real changes in citizens’ material condition and realities.

The ICESCR therefore covered human rights related to food, health, housing, labour and so on.

But, recognising that states’ obligations to provide for this set of human rights would obviously be constrained by their financial capacities, the ICESCR allowed for “progressive realisation” of these rights over time.

It is this that led to the widespread belief that these human rights are not “justiciable” — subject to strictly legal claim and protection.

What this meant in practice was that these human rights have largely been treated as add-ons — not as entitlements.

In addition, with time, it became clear that violations of these human rights can be committed not just by acts of omission — the persistent failure to plan for and finance their realisation as “development” or as social services.

Violations of these human rights routinely happen also as acts of commission — the equally persistent failure to take them into account when deciding, for example, to evict smallholders.

But now, finally, after years of work by the global human rights community, the Optional Protocol to the ICESCR has been elaborated, establishing both an individual and group complaints process, as well as an inquiry process, where violations of the human rights covered by the ICESCR are believed to be both “gross and systematic.”

The import of is clear. Economic, social and cultural rights are justiciable legal entitlements.

States’ obligations to promote and protect them are reaffirmed and extended.

And, most importantly, the possibility for redress through legal remedies for particularly minorities now exists at the international level.

While only eight state parties to the ICESCR formally signed onto the Optional Protocol last week, an additional 12 committed to doing so.

And only 10 full ratifications are needed for the Optional Protocol to enter into force.

Africa, as historical driving force behind the ICESCR, should reclaim that historical position by being first in line to provide those ratifications.

L. Muthoni Wanyeki is executive director of the Kenya Human Rights Commission

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