The Economic, Social and Cultural Rights Protocol to the American Convention and its Background
| Author | Larry LeBlanc |
| DOI | 10.1177/016934419201000203 |
| Date | 01 June 1992 |
| Published date | 01 June 1992 |
| Subject Matter | Part A: Article |
NQHR2/1992
THE
ECONOMIC,
SOCIAL
AND CULTURAL RIGHTS
PROTOCOL
TO
THE
AMERICAN CONVENTION AND ITS BACKGROUND
Larry Leblanc'
IIntroduction
For the most part, the terms of the American Declaration of the Rights and
Duties of Man and the American Convention on Human Rights reflect the
traditional way of thinking about human rights: they emphasize the traditional
civil and political rights and treat economic, social and cultural rights more as
byproducts of economic development than as values in themselves. In other
words, human beings enjoy such rights as a right to work, to an adequate
standard of health care and to social security if they are fortunate enough to
live in a system with an economy that is strong and makes their realization
possible, they are not values in themselves as are the traditional rights to
participate in government and to freedom of expression and religion. In the last
decade or so, however, this way of thinking has come increasingly under
attack, and a movement began, led by the Inter-American Commission on
Human Rights (IACHR), to adopt a protocol to the American Convention on
Human Rights that would deal exclusively with economic, social and cultural
rights. The parties to the Convention adopted such a protocol in November
1988.1It has since been signed by fifteen of the twenty-three parties; one of
the signatories, Suriname, has ratified.'
This article provides a retrospective analysis of the issues and problems that
arose in incorporating the economic, social and cultural rights into the norms
of the inter-American human rights regime. It is divided into three main
• Associate Professor, Marquette University, Milwaukee, USA.
1 For the text of the Protocol, see Appendix I of this NQHR. The 14 members of theworking
group that drafted the protocol were Argentina, Barbados, Bolivia, Colombia, Costa Rica,
Ecuador,
E1
Salvador, Guatemala, Honduras, Mexico, Nicaragua, Peru, Uruguay and
Venezuela. Representatives of Brazil, Paraguay, andthe United States, which are not parties
to the Convention, attended some sessions of the working groupas observers.
2 For a table of signatories and ratifications, see Annual Report of the Inter-American
Commission-onHuman Rights; 1990-91, OEAlSer.UV/lI.79 rev. 1, Doc. 12, 1991, at p. 553
[hereinafter cited as 1990-91 Annual Report of the IACHR] and also Appendix VII of this
NQHR.
130
LeBlanc I The Economic, Social and Cultural Rights Protocol
sections.
The
first section looks at the earliest efforts to elaborate a theory of
economic,social
and cultural rights when the American Declaration of the
Rights and Duties
of
Man was drafted and at how the American States reacted
to that effort. The second section examines the relevant provisions
of
the
American Convention on Human Rights, paying particular attention to why the
Convention failed to include economic, social and cultural rights among those
that it aims to protect. The third section looks at how the main issues and
problems that were raised in connection with the norms and implementation
mechanisms
of
the protocol were resolved. While the adoption
of
the protocol
signifies something of a breakthrough in the field of economic, social and
cultural rights, this retrospective suggests that its contributions are not
thoroughly original, that, in fact, much of the thinking that went into its
development calls to mind earlier post-World War II proposals that were
rejected
by
the American States.
IT ESC Rights and the American Declaration
The earliest inter-American efforts to deal with economic, social and cultural
rights occurred during the drafting of the American Declaration
of
the Rights
and Duties
of
Man
in the mid-1940s.3The Declaration grew out
of
adecision
of
the Inter-American Conference on Problems of War and Peace that was held
in Mexico
in
1945. The Conference called upon the Inter-American Juridical
Committee (IAJC) to prepare a draft declaration on human rights for later
consideration in connection with the drafting of the GAS Charter. This draft,
which was completed in 1946,4 took a stand on economic, social and cultural
rights that would have pleased the most ardent present-day champions
of
those
rights. The
WC
argued that the "conception of the state as a cooperative
commonwealth, in which the resources of the community must be used to raise
the standard
of
living and to provide a decent subsistence for all
of
its
members", had come to "dominate modem political thought".' According to
3 The text
of
the Declaration can be fonnd in OAS, Handbook
of
Existing Rules Pertaining to
Human Rights in the Inter-American System (updated to July 1983), at pp. 109-146
(OBA/Ser.UVIII.60 Doc. 28 rev. 1) [hereinafter cited as Handbook of Existing Rules].
4Pan American Union,
we,
"Draft Declaration of the International Rights and Duties of Man
and Accompanying Report" (1946) [hereinaftercited as Draft Declaration of the International
Rights and Duties of Man].
5 Ibidem at p. 15.
131
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