What We Talk about When We Talk about Indicators: Current Approaches to Human Rights Measurement Author(s): Maria Green Reviewed work(s): Source: Human Rights Quarterly, Vol. 23, No. 4 (Nov., 2001), pp. 1062-1097 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/4489371 . Accessed: 07/12/2012 11:43 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp
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What We TalkAbout When We TalkAbout Indicators: Current Approaches to Human RightsMeasurement MariaGreen* I. Introduction II. Types of Materials Surveyed III. Initial Definitions A. Indicators B. Human Rights IV. An Overview of Basic Human Rights Concepts A. Origin and Nature of International Human Rights Protections B. List of the Rights Protected under International Law C. Progressive Realization D. Rights that are not Subject to Progressive Realization E. Three Duties: Respect, Protect, Fulfill F. Core Content G. Organizing Principles
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* MariaGreen,M.A.,J.D. is the directorof the International LawCenter(IAPLC), Anti-Poverty an internationalhumanrightsorganizationbased in New York.Her researchinterestsfocus on internationaleconomic, social, and culturalrights. The author would like to thank Brigit Toebes at the IAPLC,for both substantive contributionsand crucialbackgroundresearchto this project,and AlysonKingfor Spanish translations.Manyother people generouslyprovidedassistancewith this article,including discussions of indicatorstheory and text copies or suggestions concerning indicators literature.Special thanks to Abdullah An'Na-im, Saskia Bal, Ineke Boerefijn,Audrey Chapman, Fons Coomans, Sakiko Fukuda-Parr,Adam Green, Ellen Hagerman,Steve Hanson, Friedvan Hoof, Paul Hunt, Isabell Kempf,ResurreccioneLao-Manalo,Stephen Marks, Naomi Onaga, Goro Onojima, Andreas Pfeil, Elsa Stamatopoulou,Alexandre Tikhonov,HillaryWiesner,SarahZaidi,and the staffand Ph.D. candidatesat SIM.
HumanRightsQuarterly23 (2001) 1062-1097 @ 2001 by TheJohnsHopkinsUniversityPress
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H. Normative Contents of the Various Economic, Social and Cultural Rights I. Obligations of Conduct and Obligations of Result J. Two Common Misconceptions with Regard to Human Rights V. Definitions: "Indicators,""Benchmarks"and "Indices" in the Human Rights Discourse A. General (non-HR) Definitions for Indicators B. Human Rights Indicators as Statistics C. "Thematic"Approach to Human Rights Indicators D. Benchmarks E. Indices VI. Theoretical Issues Concerning Human Rights Indicators A. Criteria by which They are Adopted: Disaggregation, Progressive Measurement B. What is Being Measured: Compliance with Obligations or Enjoyment of Rights? C. Distinctions Between Human Rights Indicators and Development Indicators? D. Distinctions Between Civil and Political Rights Indicators and Indicators for Economic, Social and Cultural Rights? VII. The Role of Human Rights in the Development Discourse VI. Conclusion and Recap of Discussion Points
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I. INTRODUCTION In the spring of 1999, when the United Nations Development Programme (UNDP) was preparing the Human Development Report 2000 (HDR), it asked the International Anti-Poverty Law Center (IAPLC)to prepare a background paper on the state of the field in human rights indicators. The Human Development Report Office was particularly interested in receiving the following elements: - rough overview and introduction of the issue, i.e. (human rights) indicators; -
summary, and thorough review of recent contributions, approaches, and trends in the field, covering: [(i)] approaches used in measurement, such as whether the measurement focuses on human outcomes or state obligations; (ii) areas covered; (iii) whether the focus is on ESCR [economic, social and cultural rights] or extends to
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specific provisionsin the multitudeof other legal instrumentssuch as the Rightsof the Child, CEDAW,core laborstandards; identifyinggaps in the literature.1
This article is the result of that request. Its purpose is to provide an account of the current state of the field with regard to human rights indicators,includingindicatorsfor civil, cultural,economic, political, and social rights.2 The literaturesurveycovers materialsdealing both with the theory of human rightsindicatorsand with the practiceof human rightsmonitoring. The survey is limited to materialsdealing explicitly with human rights indicatorsand excludes texts fromthe infinitelymore vast field of development, economic, and social indicators,where those texts do not contain thisarticledoes not humanrightslaw.Inparticular, referencesto international in the UNDPwas which indicators of social the field theory, attemptto cover time and length,the documents alreadyexpert.Becauseof the constraintsof surveyeddeal primarilywith UN humanrightsinstrumentsratherthan with regional human rightsinstrumentssuch as the variousconventionsof the Organizationof AmericanStatesand the Organizationfor AfricanUnity. Inthe course of an extensiveexaminationof the field we identifiedfive centralquestions in the discussionof human rightsindicators: 1. Is the word "indicator"used within the humanrightscommunityto referto informationbeyond statisticaldata? 2. Istherea differencein kindbetween indicatorsdesignedto measure economic, social and cultural rights and indicatorsdesigned to measurecivil and political rights? 3. Is there a practical distinction to be made between indicators designedto measurestates'compliancewith theirobligationsunder the varioushumanrightstreatiesand indicatorsdesignedto measure individuals'and groups'enjoymentof their humanrightsunderthe various human rightstreaties?If so, to what extent have effective indicatorsbeen developed to measurecompliance and enjoyment respectively?
1.
"Termsof Reference, LiteratureSurvey for 2000 Human Development Report, Human Rights and Human Development," Agreement between the United Nations Development Programme and the International Anti-Poverty Law Center (IAPLC)(April/May
2.
The original version of this article served as a background paper for the Human Development Report 2000. Except for minor editorial changes, the text is as it appeared then. Occasional updates, reflecting more recent developments in the field, appear in the footnotes except where otherwise noted.
1999).
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4. Is there a distinction to be made between indicators concerning economic, social and cultural rights and indicators that measure levels of development or conditions of poverty? 5. What are the kinds of indicators currently being used by UN bodies, NGOs, and scholars with regard to the human rights guaranteed under the various international treaties? Some of these questions have relatively straightforwardanswers; others are still highly unsettled. The article is designed to provide an overview of the state of the field with regard to each, while also providing enough technical background information on human rights to facilitate further discussion.
II. TYPESOF MATERIALSURVEYED The term "indicator" is not yet a fixed term within the field of human rights law and advocacy, and discussions of indicators theory do not always appear under that term. In addition, much of human rightstheory relevant to indicators must be extrapolated from documents that discuss or define how enjoyment of particular rights is to be measured or how obligations under a particular right are to be defined. Literaturefrom four general categories that discuss indicators is addressed here. Those categories are 1) documents put forward by United Nations bodies, including those charged with overseeing the implementation of human rights treaties, special rapporteurs, and those dealing with human rights issues in the context of development; 2) reports by NGOs; 3) reports by governmental bodies; and 4) scholarly books and articles dealing with issues of human rights norms, indicators, monitoring, and reporting.
III. INITIALDEFINITIONS A. Indicators The range of definitions for "indicator"currently in use in the human rights literature is discussed below at section V. For the purposes of this article, we have adopted the following working definition: "A Human Rights Indicator is a piece of information used in measuring the extent to which a legal right is being fulfilled or enjoyed in a given situation."
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B. Human Rights
There are two ways in which human rightsserve to informdebates about development,poverty,governance,and other relatedconcerns. The firstis based on simple internationallegitimacy:humanrightsprovidea legitimate normative basis for declaring a certain set of conditions immoral. The second is a more preciseset of analytictools for breakingdown the actions of powerfulinstitutionsinto permissibleand impermissiblecategories. Althoughmany organizationsand individualsthinkof human rightsin termsof the firstfunction,we have chosen to focus on the second and more precise use. The assumptionis that a "human rights indicator"must be pegged to specific rightsand obligationsdefined undernationalor international law. Inorderto discussthe field of humanrightsindicators,therefore, it is necessaryto describe, at least briefly,the basics of the international humanrightsfield:what rightsare involved;what governmentsare required to do in fulfillingthose rights;and whatthe primaryinternationalmachinery is that serves to protect and oversee the fulfillmentof those rights.The followingbriefsketchis intendedto lay out the basic conceptsgoverningall humanrights,includingsome specific details regardingthe less well-known economic, social and culturalrights.3 IV. AN OVERVIEWOF HUMAN RIGHTS
If human rightsindicatorsreferto tools for measuringhuman rights,then any discussion must be predicatedon the basics of what, in fact, is to be measured.4The following section providesa highlytruncatedintroduction to the relevantstandards.
3.
A lack of conceptual clarity with regard to the specific contents of the major economic, social and cultural rights has frequently been blamed for a failure to identify suitable indicators for these rights. See, e.g. Report of the Seminar on Appropriate Indicators to Measure Achievements in the Progressive Realization of Economic, Social and Cultural Rights, 25-29 Jan. 1993, U.N. Doc. No. A/CONF.157/PC/73, 20 Apr. 1993, at 37 (hereinafter "1993 Indicators Seminar").(Note: the Thesaurus of Economic, Social and Cultural Rights has been published since the original version of this article was completed. See STEPHENA. HANSEN, THESAURUSOF ECONOMIC,SOCIALAND CULTURALRIGHTS: TERMINOLOGYAND POTENTIALVIOLATIONS (2000) also available at <http//shr.aaas.org/ ethesaurus.html> (2000). Similarly, so have several General Comments by the Committee-see note 23 infra. Another recent addition is INT'LHUMAN RIGHTS INTERNSHIP PROGRAM & CIRCLEOF RIGHTS,ECONOMIC,SOCIALAND CULTURAL ASIAN FORUMFORHUMAN RIGHTS& DEVELOPMENT, RIGHTSACTIVISM:A TRAININGRESOURCE (2000).)
4.
This view is widely endorsed, by the 1993 Indicators Seminar, (see supra note 3), and works of NGOs such as PhilRights (Philippines), Provea (Venezuela). See, e.g., Ana Barrios, Provea, Indicatores de Medicion, aspectos metodologicos y estrategias de exigibilidad del derecho a la salud, Conference Paper from the workshop Indicadores
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A. Origin and Nature of International Human Rights Protections International human rights law is created primarily by international treaties, such as the International Covenant on Civil and Political Rights (ICCPR)5or the International Covenant on Economic, Social and Cultural Rights (ICESCR);6 and declarations, such as the Universal Declaration of Human Rights.7Other major human rights treaties include the Convention on the Rights of the Child (CRC),8the Convention on the Elimination of Discrimination Against Women (CEDAW),9the Convention Against Torture (ICAT),10and the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD)." The international treaties are drafted and acceded to by governments and are geared primarily towards the actions of governments: At their base they consist of governments assuming certain legal duties with regard to individuals or groups. Thus, human rights treaties serve primarily to create rights for people and duties for governments. Human rights law can be applied, in certain situations, to the actions of other actors, but it was designed primarily to place both positive and negative constraints on the actions of states. It is important to note in this context that, even where the primary duty is upon the state, that duty is often a duty to regulate a third
5. 6. 7.
8.
9.
10.
11.
para la Exigibilidad y Vigilancial Social de los Derechos Econ6micos, Sociales y Culturales, convened by the Plataforma Colombiana para Derechos Humanos, Democracia, y Desarrollo, Santa fe de Bogota, Colombia, 24-25 May 1999. (On file with author.) International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976). International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI),U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) (hereinafter Covenant). Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (111), U.N. GAOR, 3d Sess. (Resolutions, pt. 1), at 71, U.N. Doc. A/810 (1948), reprinted in 43 AM.J. INT'LL. 127 (Supp. 1949). Convention on the Rights of the Child, adopted 20 Nov. 1989, G.A. Res. 44/25, U.N. GAOR, 44th Sess., Supp. No. 49, U.N. Doc. A/44/49 (1989) (entered into force 2 Sept. 1990), reprinted in 28 I.L.M. 1448 (1989). Convention on the Elimination of All Forms of Discrimination Against Women, adopted 18 Dec. 1979, G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp. No. 46, U.N. Doc. A/ 34/46 (1980) (entered into force 3 Sept. 1981), 1249 U.N.T.S. 13, reprinted in 19 I.L.M. 33 (1980). Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 Dec. 1984, G.A. Res. 39/46, U.N. GAOR, 39th Sess., Supp. No. 51, U.N. Doc. A/39/51 (1985) (entered into force 26 June 1987), reprinted in 23 I.L.M. 1027 (1984), substantive changes noted in 24 I.L.M. 535 (1985). International Convention on the Elimination of All Forms of Racial Discrimination, adopted 21 Dec. 1965, 660 U.N.T.S. 195 (entered into force 4 Jan. 1969), reprinted in 5 I.L.M. 352 (1966).
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partyactor.Forinstance,if a privateemployeris holdingworkersin slaverylike conditions, with no interventionby the government, the lack of interventionis a violationof humanrightsby the governmentthat has taken on the duty of protectingthe rightto decent workingconditions.12 It should also be noted that humanrightslaw has emergedin partas a resultof a political process, and thereforedoes not cover everythingthat might be considered good. For instance, no specific internationalhuman rightto protectionfromordinarystreetcrimecurrentlyexists,13except in the sense that any measurestaken by the state to combat crime must be taken in a nondiscriminatory way. Each of the UN human rightstreaties has a committee, or oversight body, chargedwith monitoringthe membergovernments'compliancewith the treaties.The UN committeesreview reportsand issue recommendations to governments.Inaddition,they often provideguidanceas to the meaning of the law, which they do throughthe issuesthey ask governmentsto report upon;the issuesthey choose to take up with governmentsin oraldiscussion; the concluding remarksthey make after each government has been reviewed;and the issuance of GeneralCommentsthat explain and elaborateon the meaningof specific provisionswithin theirtreatiesor deal with other similarissues. B. List of the Rights Protected under International Law
The individual human rights enumerated in internationaltreaties often encompass a numberof subsidiaryrights,and many aspects of each right overlap. For instance,the rightto health encompasses a rightof access to safe drinkingwater,as does the rightto food. Access to safe drinkingwater in the home and school are also aspectsof the rightto housingand the right to education, respectively.'4 How a rightis characterizedmay be the resultof theorydeveloped by internationalbodies and scholars afterthe source treatywas ratified.For instance,the ICESCR speaksof a "rightof everyoneto an adequatestandard of living for himselfand his family,includingadequatefood, clothing and 12.
13. 14.
See THE MAASTRICHTGUIDELINESON VIOLATIONSOF ECONOMIC,SOCIALAND CULTURALRIGHTS,SIM Special No. 20, Netherlands Institute of Human Rights, Utrecht, (Theo C. van Boven, Cees Flinterman, & Ingrid Westendorp eds., 1998). See BrigitToebes, The Human Rightto Safety, unpublished paper. (On file with author.) See Maria Green, CESR Guide to Economic and Social Rights, unpublished draft document prepared for the Center for Economic and Social Rights [hereinafter CESR Guide]. (On file with author.) See, e.g., General Comment 4, The Right to Adequate Housing, U.N. Doc. E/1992/23, S 8; General Comment 13, The Right to Education, U.N. Doc. E/CN.12/1999/10, S16 (1999).
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housing.""â&#x20AC;˘ In practice, the Committee on Economic, Social and Cultural
Rights, as well as most scholars and activists, generally speak of two separate rights, the right to food and the right to housing. No parallel right to adequate clothing has been meaningfully discussed by the international human rights bodies. John Gibson, in his useful Dictionary of International Human Rights Law, identifies sixty-four human rights derived from international legal treaties and four human rights derived from UN Declarations. Although 1 TABLE I Civil and Political Rights Assembly Association Asylum Child Dignity, Honor, Reputation Discrimination Life Name Nationality Political and Public Service Press Property Religion Speech Territory,Movement in Women
II Legal Rights Appeal Arrest Bail Compensation Contract Inability Courts/Tribunals Death Penalty Detention Double Jeopardy Due Process Equal Protection of the Law Ex Post Facto Law Habeas Corpus Innocence Presumption Judgement and Sentencing Juvenile Due Process Legal Assistance Person Before the Law Privacy Punishment Security of Person Self-Incrimination Torture Trial Trial Procedure
IIIEconomic, Social and Cultural Rights Author Culture Education Family Food Health Science Social Security Work, Right to Work, Conditions Work, Trade Unions Work, Trade Union Rights
IV Collective Rights Aliens Apartheid Genocide Migrant Workers Minorities Refugees Peoples, Self-Determination Peoples, Natural Resources Slavery Stateless
15.
Covenant, supra note 6, at art. 11.
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Gibson's labels are a little idiosyncratic and inconsistent in format, the list provides a useful starting point for a discussion of the overall field of international human rights. Gibson's list is as follows:16 For the most part, the human rights that are considered civil or political in nature are well understood and need not be explained here. A few key concepts with regard to the economic, social and cultural rights are however provided below.
C. Progressive Realization The economic and social rights in both the ICESCRand the CRC are subject to the limitation of "progressive realization." The implications of this phrase are explained by the Committee on Economic, Social and Cultural Rights: The principalobligationof resultreflectedin article2 (1) is to take steps "with a view to achievingprogressivelythe full realizationof the rightsrecognized"in the Covenant.The term "progressiverealization"is often used to describethe intent of this phrase. The concept of progressiverealizationconstitutes a recognitionof the fact that full realizationof all economic, social and cultural rightswill generallynot be able to be achieved in a shortperiodof time. Inthis sense the obligationdifferssignificantlyfromthatcontained in article2 of the InternationalCovenant on Civil and Political Rights which embodies an immediateobligationto respectand ensureall of the relevantrights.Nevertheless, the fact that realizationover time, or in other words progressively,is foreseen under the Covenantshould not be misinterpretedas deprivingthe obligationof all meaningfulcontent.Itis on the one handa necessaryflexibility device, reflectingthe realitiesof the realworld and the difficultiesinvolvedfor any countryin ensuringfull realizationof economic, social and culturalrights. On the otherhand,the phrasemustbe readin the lightof the overallobjective, indeedthe raisond'etre,of the Covenantwhich is to establishclearobligations for Statespartiesin respectof the full realizationof the rightsin question.Itthus imposes an obligation to move as expeditiouslyand effectively as possible towardsthat goal. Moreover,any deliberatelyretrogressivemeasuresin that regardwould requirethe mostcarefulconsiderationand would need to be fully justifiedby referenceto the totalityof the rightsprovidedfor in the Covenant and in the context of the full use of the maximumavailableresources.17 Note that this definition creates a rebuttable presumption that any deliberately retrogressive measures with regard to economic, social and 16.
OF INTERNATIONAL HUMAN RIGHTSLAW 37-38 JOHN S. GIBSON, DICTIONARY
(1996).
17. Covenant,supranote 6, at art. 2 T 1; see U.N. Committeeon Economic,Social and CulturalRights,Annex III,GeneralCommentNo. 3 of the Committeeon Economic, Social and CulturalRights,The Natureof StatePartyObligations,U.N. Doc. E/1991/23 (E./C.12/1990/3).
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cultural rights would be a violation of human rights duties under the Covenant. D. Rights That Are Not Subject to Progressive Realization The major substantive economic, social and cultural rights are generally considered to be the rights to food, health, housing, education, and work. It should be noted that in addition to these substantive rights there are what might be thought of as procedural rights that apply to all human rights without exception. These rights are not subject to the "progressive realization" clauses that apply to the substantive rights, and always create an immediate duty on the state. Three major rights that fall into this category are the right to non-discrimination, the right to legal remedies if one's rights are violated, and the right to participation in the making of policies or laws that affect one's rights. It is particularly well-established that the principle of non-discrimination applies to all human rights and is always immediately applicable. Thus, if a government's housing policies discriminate against women, the government is in violation of the human right to housing regardless of the level of resources available to that government. Under the ICESCR,individuals are protected from discrimination "on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."18 E. The Three Kinds of Duties: Respect, Protect, Fulfill The analytic breakdown of governmental duties into these three types is usually referredto in the context of economic, social and cultural rights, but in fact it applies to all human rights, including civil and political rights.19A draft manual prepared for an NGO explains the duties as follows: The duty to respect,that is, not actively to deprive people of the guaranteed right.For instance,a governmentrespectsa person'srightnot be torturedby refrainingfromtorturinghim or her,and it respectsa person'srightto food by refrainingfrom interferingwith his or her means of access (forexample by not imposingfood blockades to punish her region for holding dissident political views). Thedutyto protect,thatis, not allow othersto deprivepeople of the guaranteed right.Forinstance,a governmenthas a dutyto passand enforcelaws forbidding companiesfromspewing out health-impairing pollution. 18. 19.
Covenant, supra note 6, at art. 2. See MAASTRICHT GUIDELINES,supra note 12.
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The dutyto fulfill,that is, to workactivelyto establishpolitical,economic, and social systemsand infrastructure that provideaccess to the guaranteedrightto all membersof the population.Forinstance,a governmenthas a dutyto see that a school system providingfree and compulsoryprimaryeducation is in place throughoutits country.It also has a duty to oversee any privatecompanythat providesbasic infrastructure supportand to ensurethatitsservicesareadequate and open to all withoutdiscrimination.20
F. Core Content Despite the "progressive realization" rule, the Committee on Economic, Social and Cultural Rights has established a notion of "minimum core content" with regard to each economic, social and cultural right. In the words of the Committee: [T]heCommitteeis of the view that a minimumcore obligationto ensurethe satisfactionof, at the very least, minimumessentiallevels of each of the rights is incumbentupon every Stateparty.Thus,for example, a Statepartyin which any significantnumberof individualsis deprived of essential foodstuffs,of essentialprimaryhealthcare, of basic shelterand housing,or of the mostbasic formsof educationis, primafacie, failingto dischargeits obligationsunderthe Covenant.If the Covenantwere to be read in such a way as not to establish such a minimumcore obligation, it would be largelydeprivedof its raison d'etre.By the same token, it mustbe notedthatany assessmentas to whethera State has dischargedits minimumcore obligationmust also take account of resource constraintsapplying within the country concerned. Article 2 (1) obligates each Statepartyto take the necessarysteps "to the maximumof its availableresources."In orderfor a Statepartyto be able to attributeits failure to meet at least its minimum core obligations to a lack of available resources it
mustdemonstratethatevery efforthas been made to use all resourcesthat are at its dispositionin an effortto satisfy,as a matterof priority,those minimum obligations.21
20. CESRGuide, supranote 14. Note the Committeeon Economic,Social and Cultural Rights has increasinglyadopted a two-tiered approach to the "fulfill"obligation, dividingit intofulfill(facilitate)and fulfill(provide).See GeneralComment12, Rightto AdequateFood, U.N. Doc. No. E.C.12/1999/5, 1 15 (note).Note also this remarkin GeneralComment13, supranote 14, T 47 which came out afterthe originalversionof this article was completed:"As a general rule, States [P]artiesare obliged to fulfil (provide)a specific rightin the Covenantwhen an individualor group is unable, for reasons beyond their control, to realize the rightthemselves by the means at their disposal." 21. Committeeon Economic,Social and CulturalRights,GeneralComment3, supranote 17. Inthe fall of 1999, afterthis paperwas completed,an electronicconferenceon the The reportof that concept of "corecontent"took place underthe aegis of the IAPLC. conferenceis forthcoming.
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Note that this definition again creates a rebuttable presumption that the existence of widespread poverty can be attributed to violations of economic, social and cultural rights by the government in question. As we will see below, however, it is important to note that this is an assumption made for practical purposes and does not have the legal impact of reducing the definition of observance of economic, social and cultural rights to a mere generalized survey of whether or not poverty exists in large amounts in the country in question. An individual case of violation with regard to economic, social and cultural rights-for instance, depriving a prisoner of access to food-is as much a violation of human rights as an individual act of torture.
G. Organizing Principles The major economic, social and cultural rights are the right to food, the right to health, the right to education, the right to housing, and the right to work. It is possible to think of the contents of each of these rights in terms of a consistent set of "organizing principles." For instance, the Special Rapporteur on Primary Education, Katarina Tomasivski, has adopted an analytic framework for the right to education using the principles of Availability, Accessibility, Acceptability, and Adaptability.22The IAPLChas similarly suggested that the contours of each substantive economic, social, and cultural right can be seen as shaped by the following three principles: Availability (elements of the right relating to the existence within a country of adequate goods or services required to fulfill the right).
Accessibility(elementsof the rightrelatingto access to the necessarygood for all members of society, including such issues as geographic accessibility, affordability,and absence of discrimination). Quality (elements of the right relatingto the actual nature of the good or services requiredto fulfillthe right,includingsuch issues as health and safety regulationof food or housing, depth of academic instruction,and cultural appropriateness).23
KatarinaTomasivski, PreliminaryReportof the Special Rapporteuron the Right to Education, 1S 51-74. U.N. Doc. E/CN.4/1999/49. 23. International Anti-PovertyLawCenter,Statementto the UN Committeeon Economic, Social and CulturalRights,Day of General Discussion,10 May 1999. (On file with author.)The IAPLC'suse of the terminologydrew on an earlierbody of work from 22.
several sources. See, e.g.,
BRIGIT TOEBES, THE RIGHT TO HEALTH AS A HUMAN RIGHT IN
(1999). Note also that since the originalversionof this paper was completed,the UnitedNationsCommitteeon Economic,Socialand CulturalRights has adopted versions of all or some of the availability/accessibility/acceptability/ INTERNATIONAL LAW 364-65
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H. Normative Contents of the Various Economic, Social and Cultural Rights There is not enough room in this article to describe the actual contents of each of the major economic, social and cultural rights. However, a brief breakdown describing some key elements to each of the rights may assist in the discussion. All of these elements entail a three-fold duty on the part of the government: the duty to respect, protect, and fulfill, as described above. Food: 1) the right to sustainable access to adequate food; 2) the right to safe food, including the right to information about food and nutrition; and 3) international aspects of the right to food. Health: 1) rights involving freedom and control over one's health, including for instance reproductive freedom and freedom from torture; 2) the right to health care; 3) the right to underlying determinants of health, including for instance clean water, sanitation, healthy and natural workplace environments, and information about health. Housing: 1) the right to access to adequate housing; 2) the right to security of tenure and freedom from forced evictions; and 3) the right to privacy in the home. Education: 1) rights involving the aims and objectives of education; 2) the right to receive an education (including free and compulsory primaryeducation, and progressively realized free secondary and tertiary education, as well as technical or vocational and fundamental education); 3) rights involving material conditions of teachers; 4) the right to make choices about one's own education or that of one's children; and 5) the right to establish schools and to teach. Work: 1) the right to freedom from forced labor; 2) labor union rights; 3) the right to adequate working conditions and adequate leisure; 4) the right to fair wages and equal remuneration.24 Note that even this rough breakdown with regard to the right to work.
is not comprehensive,
particularly
adaptability/qualityvocabulary in several new General Comments. See General Comment12, The Rightto AdequateFood, U.N. Doc. E/C.12/1999/5(1999);General Comment13, supranote 14; GeneralComment14, The Rightto Health,U.N. Doc. E/ CN.12/2000/4(2000).A usefulcompilationof GeneralCommentscan be foundin U.N. Doc. HRI/GEN/1/Rev.5 (26 Apr. 2001).
24. Thesecharacterizations are basedon MariaGreen,CESRGuide,draftdocument,supra note 14. The summariesof the rightsto food, education,and healthhave been updated since the originalversionof the paperto reflectthe recentGeneralCommentsof the Committeeon Economic,Social and CulturalRights.
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I. Obligationsof Conduct and Obligationsof Result The rights in the ICESCRentail for states parties both obligations of conduct and obligations of result.25The distinction in this context has been clearly described by Asbjorn Eide: An obligationof conduct (activeor passive)pointsto behaviorwhich the duty holdershould follow or abstainfrom.An obligationof resultis less concerned with the choice of the line of actiontaken,but moreconcernedwith the results which the duty-holdershould achieve or avoid.26 We mention the distinction here simply to clarify that both indicators of process (such as the number of mothers attended by medical personal at birth) and indicators of outcome (such as the number of infants surviving their first three months) can be linked, without conceptual difficulty, to the various obligations under human rights law.
J. Two CommonMisconceptionswith Regardto HumanRights The first misconception is that the existence of poverty is identical to proof that economic, social and cultural rights are being violated, or that the absence of poverty is proof that economic, social and cultural rights are being respected. As we have seen above, it is theoretically possible that a country is taking all the proper measures mandated by the human rights treaties, and is appropriately devoting its available resources to the establishment of systems to ensure adequate food, health, housing, education, and work condition, but that even so the resources are insufficient to actually relieve poverty. In such a case no human rights violation would be taking place, or at least not by the national government. Alternatively, and more importantly, it should be noted that economic and social rights are not merely, or precisely, poverty rights. For instance, a resource-rich country that failed to take adequate steps to protect its food supply by not ensuring proper facility inspections, might be violating the right to food even if no one was suffering from hunger within the country's territory. Similarly, a country in which all schools gave adequate instruction, but were segregated by race, would be in violation of economic, social and cultural rights law, even though no one was living in poverty there. The second misconception is that all economic, social and cultural
25. 26.
Committee on Economic, Social and Cultural Rights, General Comment 3, supra note 17; see also MAASTRICHT GUIDELINES,supra note 12. Asbjorn Eide, Realization of Social and Economic Rights and the Minimum Threshold Approach, 10 HUM.RTS.L. J. 35-51, at 38 (1989).
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rights imply expenditure on the part of governments and that all civil and political rights do not imply state expenditure. It should be noted that many economic, social and cultural rights are essentially negative in nature, requiring only that a government refrain from violating the right, and that many civil and political rights are positive in nature, requiring for instance the provision by a government of a functioning judicial system. The distinction has come up particularly in the context of indices, with some suggesting that it is possible to compare violations of civil and political rights across all countries but that violations of economic, social and cultural rights must be measured only in relation to the economic wellbeing of each individual country. Despite the concept of "progressive realization," this suggestion strikes us as inconsistent with the many negative duties implicit in the ICESCR.27
V. DEFINITIONS:"INDICATORS,""BENCHMARKS"AND "INDICES"IN THE HUMAN RIGHTSDISCOURSE A. General Non-Human Rights Definitions for "Indicators" There is certain vagueness, even in the more general field of social indicators, about the actual meaning of the term. Two definitions, one by an NGO and one by the UN, may help to provide a reference point. Redefining Progress, an NGO, provides the following definition: Technicallyspeaking,an indicatorrefersto a set of statisticsthat can serveas a proxyor metaphorfor phenomenathat are not directlymeasurable.However, the term is often used less precisely to mean any data pertainingto social conditions.28 The UN Population Fund provides another: The definition and qualities of an indicatorhave long been the subject of debate. An indicatoris a variable,or measurement,which may convey both a direct and indirectmessage.So long as it can be consistentlymeasured,it can be based on eitherquantitativeor qualitativeinformation. 27.
But see Mary Robinson, Introduction by the High Commissioner for Human Rights, in BENCHMARKS FORTHEREALIZATION AND CULTURAL OF ECONOMIC, SOCIAL RIGHTS,A ROUND-TABLE
Geneva,25 Mar.1998
FOR HUMAN RIGHTS, DISCUSSIONORGANIZEDBY THE HIGH COMMISSIONER
28.
ON BENCHMARKS]. "While a prohibition on torture or (unpaginated) [hereinafter ROUNDTABLE inhuman treatment translated into practical standards will yield a similar result from one country to another, this is not the case in relation to economic, social and cultural rights." Id. (On file with author.) CliffordW. Cobb & Craig Rixford, Lessons Learned from the History of Social Indicators, Redefining Progress, Nov. 1998, available at <http://www.rprogress.org/pubs/pdf/ SoclndHist.pdf> (visited 1 Aug. 2001), at 1.
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An indicator is generally expressed as a single figure, even when it combines
informationfroma numberof differentsources.Presentationsof morecomplex arraysof inter-relatedfigures are usually referredto as statisticaltables or tabulations,which in many cases are needed to supplementthe summary informationcontained in indicators.29 Within the human rights community there appear to be two distinct usages for the term: one a numerical definition in which "indicators" is simply another word for "statistics"; and one which we will call a more "thematic"approach in which the term "indicators"covers any information relevant to the observance or enjoyment of a specific right. These are each discussed in turn below.
B. Human Rights Indicators as Statistics It is clear that for many experts and scholars working in human rights, "indicators" refers purely to statistical information. Danilo Tuirk,the UN Special Rapporteur on the Realization of Economic, Social and Cultural Rights, devoted a large part of his reportto issues of indicators for economic, social and cultural rights. His discussion provided the following definition: "The word indicator refers to statistical data which attempts to provide or 'indicate' (usually based on some form of numerical quantification) the prevailing circumstances at a given place at a given time."30 Similarly, the report of a recent NGO workshop that discussed indicators for the right to education offers this definition: "The word indicators in this context refers to statistical categories that are perceived to express the degree of fulfillment (progressive realization) of the rightto education by the State Party.""31 The report of a 1998 UN workshop, Benchmarks for the Realization of Economic, Social and Cultural Rights contains the following remark: "For the most part, they [indicators] are essentially statistical in nature. That in turn means that their subject matter must be potentially quantifiable, not Similar definitions only in a technical sense but in practical terms as well.""32 can be found in any number of other documents. 29.
AND FORPOPULATION AND POLICYDIVISION,INDICATORS UNITED NATIONSPOPULATION FUND, TECHNICAL
4 (Oct. 1998). HEALTH PROGRAMMES REPRODUCTIVE 30. 31.
32.
Danilo Tuirk,Realization of Economic, Social and Cultural Rights, FirstProgress Report, 1990, 11 4. U.N. Doc. E/CN.4/Sub.2/1990/19 [hereinafter Progress Report]. Report of the Workshop on Indicators to Monitor the Progressive Realisation of the Right to Education. World University Service-international, Geneva (Versiox), 9 May 1999 [hereinafter WUS Report]. supra note 27. Philip Alston, Concluding Observations, In ROUNDTABLEON BENCHMARKS,
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Withregardto statistics,it should also be notedthatthere is a small but extremely useful body of literaturethat focuses on human rights and statistics specifically. This literaturedoes not always employ the term and often focuses on how to use or understandvariouskindsof "indicator," statisticalinformationin a human rightscontext. Samuelsonand Spirer,for instance,in an articleof this type, look to illustratethe use of methodological tools regardingthe determinationand readingof incomplete or suppresseddata. One example they provide is an accurate inferenceof mass murderfrom a statisticallyunlikelysurge in reportedheartattacks.33 C. "Thematic" Approach to Defining Human Rights Indicators
There is no question but that informationother than statisticsis used in monitoringwhetheror not a governmentis complyingwith its humanrights obligations. The UN committees charged with overseeing the various human rights treaties routinely request informationof all sorts: from descriptionsof legislationpassed to "anyfactorsor difficultiesaffectingthe enjoymentof the rightby personswithin the jurisdictionof the state."34 It is also clear thatthere is a solid traditionin the humanrightsfield of using the word "indicator" itself to refer to information beyond statistics.
The InternationalLaborOrganization(ILO),discussingthe question of whether human rightsindicatorsgo beyond statisticalinformation,states: "TheILO'ssupervisorybodies use a varietyof indicatorsof the degree of implementation of the instruments they supervise. .
.
. Many of these
indicatorsinclude a 'numerical'aspect, many do not."35 Forinstance,one of the indicatorssuggestedby the ILOwith regardto the rightto just and favorableconditions of work (usuallyconsidered an economic or social right)is: "Whatproceduresexist to ensurethat men and women are actually paid equal remunerationfor equal work? Do, for instance,equal opportunitiescommissionsexist?By whom are they staffed, and to what extent are they independent?"36 33.
See especially Douglas A. Samuelson & Herbert F. Spirer, Use of Incomplete and Distorted Data in Inference About Human Rights Violations, in HUMAN RIGHTS AND
STATISTICS: THERECORD 71 GETTING STRAIGHT
34.
35.
36.
(ThomasB. Jabine& RichardP. Claudeeds.,
1992). Reporting Guidelines for the Committee on Civil and Political Rights, reproduced in Fausto Pocar, The International Covenant on Civil and Political Rights, in MANUAL ON HUMAN RIGHTS REPORTING 172 (1997). Int'l LabourOrganization (ILO),Some General Points Concerning IndicatorsWithin the Field of Human Rights, background paper prepared for the 1993 Indicators Seminar, supra note 3. (On file with author.) ILO, The Right to Just and Favourable Conditions of Work: Possible Indicators, background paper prepared for the 1993 Indicators Seminar, supra note 3, U.N. Doc. HR/GENEVA/1993/SEM/BP.21.
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The Common Country Assessment (CCA) indicators used by the UN in the United Nations Development Assistance Framework (UNDAF) process do not provide an explicit definition for "indicators,"other than to mention that "[t]he participants identify sources of information including both quantitative and qualitative data.""7However, the actual indicators used for civil and political rights, which focus on legal frameworks, clearly contemplate information beyond the simply numerical. Similarly, the Human Development Report 1992 includes "[a]n illustrative checklist of indicators of political freedom," with the indicators also falling into this second, "thematic" category: "Is there prosecution of journalists for infringement of [freedom of opinion and expression] laws? Are the punishments prescribed severe in proportion to the offense?"38 A background paper on human rights indicators in the development process, prepared for the Canadian International Development Agency, declares that: "An indicator is an instrument to tell us how a project/ programme is proceeding. It is a yardstick to measure results, be they in the form of quantitative or qualitative change, success or failure. It allows managers, but also all the stakeholders involved in a programme, to monitor desired levels of performance in a stable and sustainable fashion.""9The indicators suggested fall into both the statistical and the "thematic" categories: "increased in % of voters registered" and "greater [democratically elected] legislative control over government decisions/budgets/appointments, etc."40 Provea, a Venezuelan NGO, writes: An indicatoris not only a quantitativemeasurement;indicatorsmust also be constructed that can measure other aspects that are relevant from a human
rightsperspective.This suggeststhat as well as measuringresults,they should measurekey questionsin the matterof humanrights,like the politicalwill of a to cite only two.41 stateor the fulfillmentof the principleof non-discrimination,
United Nations, Guidelines,Common CountryAssessment(CCA)(Apr. 1999), at 9 [hereinafterCommon CountryAssessment].Since this article was first drafted,the UnitedNationsHighCommissionerfor HumanRights,at a workshopon indicators,has characterizedthe CCAapproachas follows:"TheOHCHRhaschosen to adoptthe CCA definitionof indicatorwhich identifiesan indicatoras a measurementor variable conveying informationwhich may be quantitativeor qualitative,but consistently measurable ."The workshopreportalso notesthat"thereis no one precisedefinition of a human...rightsindicator."Reportof the United Nations High Commissionerfor Human RightsResearchand Rightto DevelopmentBranch,and the United Nations DevelopmentProgrammeHumanDevelopmentReportOffice Workshopon Civiland PoliticalRightsIndicators,held in Geneva, 27-29 Sept. 1999, at 1. HUMAN DEVELOPMENT REPORT1992, at 31 (1992). 38. UNITED NATIONS DEVELOPMENT PROGRAMME, 39. IlanKapoor,Indicatorsfor HumanRightsand DemocraticDevelopment:a Preliminary Study,CanadianInternational DevelopmentAgency3 (Jan.1995). (Onfile with author.) 40. Id. at 16. 41. Barrios,supranote 4, translatedfromthe originalSpanish. 37.
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in its invaluableImpleThe United NationsChildren'sFund(UNICEF), mentation Handbook for the Rights of the Child, does not appear to define
the term"indicators."However,the Handbookprovidesboth "implementation checklists"for each of the rights in the treaty (askingquestions that require answers beyond statistical information)and a useful list, culled togetherfromcommitteedocuments,of all of the statisticaldata requested by the Committeeon the Rightsof the Child in its ReportingGuidelinesto aid it in monitoringimplementationof the convention.42 The CRC, it should be noted, contains both "civil and political"and "economic and social" rights, although neither the Convention nor the Committeespecifies which rightsare which.43 Nevertheless,the second, more expansive use of the term appearsto produce indicators that lean to some extent towards the existence of legislationor other specific legal policies and may measure in part what Tomasevskicalls the "willingness"(as opposed to "capacity")44of governments with regardto humanrights. D. Benchmarks Benchmarksand indicatorsare distincttermsin the humanrightsliterature. In brief, benchmarkscan be defined as goals or targetsthat are specific to the individualcircumstancesof each country.As opposed to humanrights indicators, which measure human rights observation or enjoyment in absolute terms,humanrightsbenchmarksmeasureperformancerelativeto individually defined standards.45Benchmarks, in this sense, are also sometimesreferredto in the context of economic, social and culturalrights as "minimum thresholds."46
Fora numberof expertsand activistswritingon economic, social and culturalrights,indicatorsappearto play a role as a sortof way stationon the roadto benchmarks.47 Forinstance,UN Committeeof Economic,Socialand CulturalRightsmember Paul Hunt has proposeda four step process with regard to indicatorsand benchmarks,based on the premise that some
42.
RACHELHODGKIN& PETERNEWELL,IMPLEMENTATION HANDBOOKFORTHECONVENTIONON THERIGHTSOF
THECHILD 68-69 (UNICEF,1998).
43. 44. 45. 46. 47.
Id. at 51. A TEXTBOOK ANDCULTURAL 390 KatarinaTomasivski, Indicators, in ECONOMIC,SOCIAL RIGHTS: (Asbjorn Eide, Catarina Krause & Allan Rosas eds., 1994). See Robinson, Introduction, supra note 27. Eide, supra note 26, at 35-51. See, e.g., Danilo Turk, Progress Report, supra note 30, at 26 ("country-specific thresholds measured by indicators");Tomasivski, Indicators, supra note 44.
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obligations under the ICESCRare subject to the "progressive realization" and "maximum of available resources" language of the Covenant, and are therefore variable among states. For those variable obligations, he proposes the following process: (i)
agree to key right to education indicators;
(ii) using agreed indicators, states set their national benchmarks; (iii) using agreed indicators, the Committee on Economic, Social and Cultural Rights (and others) set appropriate benchmarks for States. (The benchmarks in (ii) and (iii) might be the same). (iv) the Committee on Economic, Social and Cultural Rights (and others) monitor above benchmarks with the reporting (and other) processes, repeat steps (ii)-(iv).48 For other experts, existing indicators might be used directly as benchmarks with regard to the progressive realization of economic, social and cultural rights. Sakiko Fukuda-Parrhas described in some detail the role development-based indicators might play as benchmarks for measuring progressive realization under the Covenant. She defines the following relevant criteria: A framework for benchmarks needs to: -
Take account [of] resource availability;
-
Take into account the level of deprivation in the country;
-
Take account of the policy options available;
-
Identify clearly those rights that are not subject to progressive realization or to resource availability;
-
Use at least some universal indicators to reflect universal rights.49
Perhaps, there will be at some point a reason to distinguish between indicators to measure "invariable" obligations (obligations applying absolutely to all countries) and indicators to measure "variable" (or relative) obligations for the purpose of national benchmarks, but the question does not appear to be currently settled within the human rights field.
48.
49.
See Paul Hunt, Rightto Education Indicators/Benchmarks, informal paper for the World University Service Workshop, supra note 31. (On file with author). See also Paul Hunt, State Obligations, Indicators, Benchmarks and the Right to Education, in ROUNDTABLE ON BENCHMARKS, supra note 27. Sakiko Fukuda-Parr,Human Development Indicators and Analytic tools as Benchmarks in Economic, Social and Cultural Rights, in ROUNDTABLEON BENCHMARKS, supra note 27.
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E. Indices Indices, or "ratingscales based on expert knowledge and judgement,"50are occasionally used in the human rights context. They generally rely on composite information and their main purpose appears to be to provide a comparative means of ranking governments by performance. Among the more famous indices referred to in the human rights literature are the
FreedomHouse DemocracyIndex,the HumanFreedomsIndexof the HDR, the HumanaIndex,and the PhysicalQualityof LifeIndex(PQLI). 5 A few basic points are made about indices in the human rights literature:1) There is concern that, because they involve choosing a limited number of specific indicators and giving them various weights, they reflect the concerns of the index compilers rather than a value-neutral interpretation;522) Many of the indices are not based on the specific norms of human rights law (for instance, although the PQLIdoes not appear to be referenced to human rights norms at all, it is often cited as an ESCRindex);53and 3) When indices' methodology is not entirely transparentthey risk accusations or the reality of bias. (For instance, the Freedom House index seems frequently to have been accused of a bias against reflecting human rights violations in non-communist countries.)54 A larger issue is the concern over whether comparative indices can actually reflect the relative situations in various countries. Robert Justin Goldstein, writing in a volume published in 1992, writes:
50. 51.
Richard P. Claude & Thomas B. Jabine, ExploringHuman Rights Issues with Statistics, in HUMAN RIGHTSAND STATISTICS, supra note 33, at 28. More detailed discussions of the civil and political rights indices can be found in HUMAN
REPORT1991 and 1992, (supranote 38); see also MeghnadDesai, Measuring DEVELOPMENT Political Freedom, in LSEONFREEDOM195 (Eileen Barkered., 1995). (On file with author.)
52.
53.
See Kenneth A. Bollen, Political Rights and Political Liberties in Nations: An evaluation of Human Rights Measures, 1950-1984, in HUMAN RIGHTSAND STATISTICS, supra note 33, at 193. This article contains an interesting section called "Are Political Democracy Indexes Appropriate Measures?" For example, Kathleen Pritchardwrites that "[t]he measure of socio-economic rights [in a study of comparative human rights] comes from Morris'(1979) Physical Quality of Life Index which is based on indicators of literacy, infant mortality, and life expectancy." Kathleen Pritchard,Comparative Human Rights: Promise and Practice, in HUMAN RIGHTS:
(David LouisCingranellied, 1988); see also RobertJustin ANDSTATISTICS of QuantitativeData,in HUMANRIGHTS Goldstein,Limitations supranote 33,
THEORYAND MEASUREMENT 140
54.
at 44. But note that the Committee on Economic, Social and Cultural Rights, in its 1991 Reporting Guidelines, requests states to provide their county's PQLI. See Revised General Guidelines Regarding the Form and Contents of Reports to be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Cultural and Social Rights, U.N. ESCOR12th Comm., U.N. Doc. E/C.12/1991/1 (1991) [hereinafter CESCRReporting Guidelines]. See Goldstein, supra note 53, at 47.
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I doubt that it would be worth the cost to know, with a kind of false precision,
that, for example, Chile has a "humanrightsscore"of 144 and EastGermany has one of 150. Human Rightsspecialists and statisticianswould recognize such differencesas being largely meaningless,but they might be viewed as significantby the pressand the lay public... Given the notorious unavailabilityand unreliabilityof human rights data, especially for the more repressiveregimes,small differencesin human rights "scores"betweencountriesor acrosstime withinone countryare notever likely to be very credibleas an accurateindicatorof real change;on the other hand, largedifferenceswill likelybe obvious beforedetailedand reliablestatisticsare available.Thus, David Banks,a statisticianwith a special expertisein human rightsdata, has noted thatwhile the limitationsof existingstatisticsin the field do not "precludecrudelyapproximatesortsof analysis,"most majorchanges in human rightspolicy are heralded by a "greatvariety"of clues "thatsignal something is afoot," and therefore "the most useful contributionstatistical methodscan make is to documentformallywhat everyone knows."55 However, the use of indices in a human rightscontext has been endorsed various UN programs, including the United Nations Development by Assistance Framework(UNDAF)56and the experts who work on the Human Development Report, who stress the helpfulness of being able to compare progressive realization of economic, social and cultural rights among countries at similar levels of development and with access to similar resources.57 It is also given limited support even by those worried about the issues of oversimplification and bias. For example, Andrew McNitt in his article, Some Thoughts on the Systematic Measurement of the Abuse of Human Rights writes that: "Value conflicts need not destroy our ability to study human rights abuses so long as we resist the temptation to rely exclusively upon summated measures of those rights."5 Another informational structure, an "information pyramid," appears to combine elements from both indices and indicator lists. Isabell Kempf, suggesting this structure in the context of indicators for the right to education, includes a description of a pyramid as presenting three levels of information: 1) a few summary "key indicators of status"; 2) "a carefully chosen expanded set of statistics that would afford a more in-depth understanding
55. 56. 57.
58.
of the forces at work behind the key indicator . . . this
Id. at 55. Common Country Assessment, supra note 37, at 19. See Sakiko Fukuda-Parr,Human Rights and Human Development, paper presented at the Columbia University Seminar on Human Rights, 1 Feb. 1999, at 6-7. (On file with author.) See Andrew D. McNitt, Some Thoughts on Systematic Measurement of the Abuse of AND MEASUREMENT, Human Rights, in HUMANRIGHTS: THEORY supra note 53, at 93.
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information would describe interrelationships, for example, show how female enrolment is subject to opportunity costs, cultural variables, etc."; 3) a third level that "would add a further dimension by reporting on selected research studies, including case studies, programme evaluations, and smallscale quantitative studies."" Kempf remarks that: [W]herethe gatheringof informationis concerned, key indicators,which are easily availableand disaggregated,will allow for a common and comparable allow the specific language across countries, whereas the interrelationships context of each countryto be explained. Forexample, several countriescan have largeilliteracyrates,but for differentunderlyingreasons.60 VI. THEORETICAL ISSUESCONCERNING HUMAN RIGHTSINDICATORS A. Criteria Criteria, in this context, refers to the characteristics, such as collectability, accuracy, comparability, and so forth, that are used in determining whether a particular indicator is appropriate for use in a particular context. The human rights discourse appears to use the same kind of criteria for indicators that development experts and social scientists use.61For instance, Provea, speaking on criteria for indicators for the right to health, refers directly to those promulgated by the World Health Organization (WHO).62 However, there are two key characteristics that are widely cited as distinctively important to human rights measurements. These are: 1) the ability to measure over time so as to examine "progressiverealization" (in the case of economic and social rights), improvement in standards (in the case of civil and political rights), and non-retrogression63;and 2) disaggregation.64 59.
60. 61. 62. 63.
64.
Isabell Kempf, How to Measure the Rightto Education: indicators and their potential use by the Committee on Economic, Social, and Cultural Rights, background paper submitted to the day of General Discussion on the Right to Education, UN Committee on Economic, Social and Cultural Rights, 30 Nov. 1999. U.N. Doc. E/C.12/1998/22 (citations omitted). Id. For a detailed discussion of criteria for indicators for economic, social and cultural rights see Tirk, Progress Report, supra note 30, at 6. Barrios, supra note 4, at 3. See similarly, WUS Report, supra note 31. See, e.g., TOrk,Progress Report, supra note 30, at 10, 21; Thomas B. Jabine & Denis F. SCIENCE Johnson, Socio-Economic Indicators and Human Rights, in AM.ASSN.ADVANCEMENT 23 (Oct. 1993); Scott Leckie, The Need for Entirely New Indicators in Assessing the Realization of Economic, Social and Cultural Rights, background paper for the 1993 Indicators Seminar, supra note 3, UN Doc. HR/GENEVA/1 993/SEM/BP.13. See, e.g., Tirk, Progress Report, supra note 30 at 10; Tomas(vski, Preliminary Report, supra note 22, ?? 29-30; WUS Report, supra note 31; reporting guidelines of the various UN human rights committees.
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Disaggregation, in the context of human rights indicators, is usually keyed to groups that have special protections under international human rights law (such as children through the CRC or women through CEDAW); to groups that fall into the categories protected by rights law against discrimination (such as ethnic minorities); and to groups that are likely to be vulnerable or experience disadvantage for any other reason (such as rural populations in comparison to urban populations).6" The question of disaggregation, however, raises another issue that is not yet fully developed: the fact that indicators primarily describe general conditions with regard to rights that are ultimately held by individuals. Although the human rights committees routinely look at information that describes large swathes of people (and the "minimum core content" definition of the Committee on Economic, Social and Cultural Rights, depends upon such information), the rights are ultimately held by individuals. The following comment by HerbertSpireret al. sounds a note of caution: Statisticalindicators,even when providedwith adequatedisaggregationsand time series, can only reflect, at best, average values as observed for some populationof interest.Evenwhen these averagesare accompanied by some measures of dispersion,they can only suggest the locus (in geographic or demographicterms)of discrepancieswhich call for furtherinvestigation.Such discrepancies do not, in and of themselves, offer proof of human rights violations;they merelypinpointwhere such violationsmay be found.66 A similar point is made by Turk: "For instance, because economic, social and cultural rights are rights of the individual, the general scope of many indicators may preclude their direct application, other than for obtaining a general overview of a particular situation."''7This particular issue is in need of further development by the human rights field in general.
B. What is Being Measured: Compliance with Obligations or Enjoyment of Rights? There are two directions from which to design any given human rights indicator: That of government compliance (as a means of measuring
65. 66. 67.
See, e.g., CESCRReporting Guidelines, supra note 53, at art. 11, (2), (i). Samuelson & Spirer, supra note 33. Turk, Progress Report, supra note 30, at 5. But see Fukuda-Parr,supra note 49. "Note that [the Human Development Index] and other indices reflect outcomes rather than inputs or effort, such as expenditures or facilities and resources. . ... It is thus strongly focused on the capabilities of individuals and not on the condition of the country." ON BENCHMARKS, ROUNDTABLE supra note 27, unpaginated.
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whether a government is fulfilling its obligations under a particular covenant) and that of individual enjoyment (as a means of measuring whether each person is fully enjoying the rights guaranteed to him or her by a covenant). Although compliance and enjoyment are two sides of a single coin, it is possible to approach indicators for human rightsfrom either angle. Paul Hunt has called a similar distinction between a "violations" approach and a "progressive realization" approach a "tyrannizing dichotomy,"68pointing out the danger of placing too much emphasis on a theoretical distinction that reflects only one facet at a time of a larger picture. It is clear that ultimately all approaches slide together to a single point: where there is a right there is a duty, and where the duty is not met there is a violation. In many cases it is irrelevant, as a practical matter, which approach is used. In some other cases, however, it is possible that one approach or the other can lead to a clearer understanding of the overall picture. This section examines the extent to which one approach or the other has been adopted by experts in the field. TOrk,wrote in 1991: [A]ny use of core indicatorsor developmentthereof must be consistentwith both the obligationsinherentin a certainright,and the entitlementsinvolved. The availabilityof valid indicators can assist with the derivation of the attachedto a right,but it cannotoffereverything. "minimumcore requirements" In manyways, a focus upon the entitlementsside of the discoursesurrounding economic, social and culturalrightsmay be morefeasibleand advantageousin the contextof indicatorusage. 69 By contrast, the Australian Human Rights Council, Inc., writing about human rights in the development context, clearly contemplates indicators determined from the obligations side of the discourse. In its recent manual, The Rights Way to Development, the Council remarksthat: In drawingup benchmarksfor the realizationof humanrightsit is importantto bear in mindthatthe obligationsto "respect,""protect"and "fulfill"rightswill necessitatethe identificationof separateindicatorsfor each. The obligationto respecta certainrightmightentailthe draftingof new legislation,the trainingof service providersor reformof the bureaucracyand this can be evaluated in terms of action taken immediately.The obligation to protect might require looking at mechanismsby which state and non-stateactors are regulatedin
68.
69.
PaulHunt,Rightto EducationIndicators/Benchmarks, supranote48. Fora discussionof the theoreticalissues involved in examiningobligationsand violations see Audrey
Chapman, A "Violations" Approach for Monitoring the International Covenant on Economic, Social and Cultural Rights, 18 HUM.RTS.Q. 23-66 (1996); see also MAASTRICH GUIDELINES,supra note 12. TOrk,Progress Report, supra note 30, at 28.
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relationto that right.By contrast,the obligationto fulfillwill requirelookingat changes in budgetaryallocationsand at the reviewingof resourcepriorities.The outcome of these actionswill also differover time, requiringa longertimeframe for the evaluationprocessas explained below.70 The Philippine Human Rights Information Center (PhilRights), a national NGO that is doing extensive work on indicators for economic, social and cultural rights, describes its work in terms of both enjoyment of rights and observance of obligations, though perhaps with an emphasis on obligation: [T]heprojectaims to come up with a set of indicatorsto measurethe extentto which governmentclaims of economic prosperityhave actuallytranslatedinto the enjoymentof economic, social and culturalrightsby the people. Itseeks to pave the way forthe settingup of a systemto assessgovernment'sresponsibility and monitorits performancewith regardto the realizationof those rights.71 and later: The end resultsshould serve as a firmbasis for a comprehensiveanswerto the question: Is the government succeeding or failing in its obligation to respect,
protectand fulfillthe economic, social and culturalrightsof the citizens?72 Similarly, the Provea article on health indicators says that "[t]he final objective of a measurement indicator in the area of human rights should be that of evaluating the State responsibility in objective terms.""7 The actual indicators used by NGOs, UN bodies, and governmental bodies do not usually state explicitly whether they are measuring enjoyment or compliance, respectively. Often there is no way or need to distinguish between the two, and often the UN body or the NGO switches easily between indicators that clearly look from one direction or the other. For instance, the Reporting Guidelines for the Committee on Economic and Social Rights ask states to report both on "the number of homeless individuals" (an enjoyment-side approach) and "measures taken to encourage 'enabling strategies' whereby local community-based organizations and the 'informal sector' can build housing and related services" (an obligationsside approach).74
70.
Andre Francovits & PatrickEarle, The Rights Way to Development: Manual for a Human Rights Approach to Development Assistance, in THE HUMAN RIGHTSCOUNCILOF AUSTRALIA, INC.68 (1998).
71.
HUMAN RIGHTS INFORMATION PHILIPPINE CENTER(PHILRIGHTS),MONITORINGECONOMIC,SOCIALAND PHASEONE 2 (1997). CULTURALRIGHTS:THE PHILIPPINE EXPERIENCE,
72. 73. 74.
Id. at 5 (emphasis in original). Barrios, supra note 4. CESCRReporting Guidelines, supra note 53 (Right to Adequate Housing).
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In general, an indicatorthat focuses on the existence of legislationor the precisegovernmentalmeasurestakento remedya povertyissue can be considered to come more from a compliance side. An indicator that requeststhe numberof childrenenrolled in primaryschool can be thought of as morefocused on enjoyment.All of the humanrightscommitteesfocus heavilyon legislativeissues, includingthe legal recognitionof humanrights and the existence of legal proceduresto protectone's rights,and overall it can be said thatwithinthe UN humanrightssystemitselfthere is at leastan equal emphasis on measuringhuman rightsfrom the compliance side as fromthe enjoymentside. There may also be practicaladvantages, particularlywith regardto economic, social and culturalrights,for focusing an approachto human rightsindicatorsfromthe governmentobligationside. One reasonfor this has to do with "progressiverealization,"which is linked to "available resources." Takefor example the rightto a healthyenvironment,which is a partof the rightto health.This includes, interalia, a rightnot to be discriminated against with regardto environmental-relatedhealth risks (such as not to have the government allow disproportionateenvironmentalhazards in areas populated by ethnic minorities);a right to have the government respect one's environmentalhealth (such as not to poison a river with effluviafroma government-ownedfactory);a rightto have the government protectit (such as not to allow a privately-ownedfactoryto poison a river); and a rightto have the governmentfulfill it (such as by ensuringthe cleanup of an accidentalenvironmentalhazard). The rightnot to be discriminatedagainstis alwaysapplicable.However, the otherrightsto respect,protectionand fulfillment,will depend, in theory, on the resourcesavailable to the governmentin question. As a practical matter,therefore,it may be easierto determinethe exact natureof each right by lookingfirstto the exact natureof the governmentalobligationunderthe "progressiverealization"clause. If a person is not enjoyingthe full breadth of his or her rights,it may be because powerfulactorsare not livingup their duties underthe law; or it may be because the actors involveddo not have access to the meansto fulfillthe rights.However,whethersuch an approach is either conceptuallyor practicallyuseful is an issue that is still open for discussionwithin the human rightsliterature.
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C. Distinctions Between Human Rights Indicators and Development Indicators To what extent does the human rights literaturedistinguish between "human rights indicators" and "development indicators" in the context of economic, social and cultural rights?There is a good deal to be gained from clarifying whether there is, in fact, a distinction between a human indicator and a development indicator, and what the impact of such a distinction might be. Ultimately, it would be preferable for the human rights and development paradigms to each provide something that the other lacks-a different angle, or a different analysis, of the same problem, each of which leads in the direction of a solution that the other field might not contemplate. However, the field may not have fully reached this kind of clarity yet. It is evident to many, if not most, of the people who speak of indicators and human rights, that there is no distinction in kind between a rights indicator and other indicators. An example is the following language in the introduction to a volume about human rights and statistical information: If we think of Morris'swork, Measuring the Conditions of the World's Poor, the
Physical Quality of Life Index, if we consider the operationsof such United Nations units as the InternationalLabourOrganizationand the WorldHealth Organization,if we review the environmentalreports of the Worldwatch Institute,and the health, food, housing,education, and laborforce indicators compiled by the WorldResourcesInstitute,then it becomes clearthatstatistical and measurementefforts have concentratedon the cluster of Declaration articles pertainingto socio-economic rights.Relativelylittle, by contrast,has been done (at least until recently)to measureand monitorpersonalsecurity, civil rights,and politicalfreedoms.75 It should also be noted that extensive use of UNDP and World Bank numbers, for example, is made by committees overseeing economic, social and cultural rights, and by NGOs that monitor and report on national human rights compliance issues.76 Philip Alston, the former Chair of the UN Committee on Economic, Social and Cultural Rights, in the concluding observations of a UN Workshop on the subject of human rights benchmarks, distinguishes between indicators (which he has previously described as "essentially statistical in nature") and benchmarks. Alston appears to give a specific human rights nature, in this context, only to the second: 75. 76.
Claude & Jabine, supra note 50, at 12. See, e.g., The Center for Economic, Social and Cultural Rights-Latin America Program, From Needs to Rights; Recognizing the Right to Health in Ecuador, Jan. 1999, at 6, available on Center for Economic and Social Rights, <http://www.cesr.org/text%20files/ health.PDF>.
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Benchmarksarethusdifferentfromindicatorsbecausethey takespecifichuman rightsstandardsas theirstartingpoint.Thus,the settingof a benchmark,and the identificationof the criteriaby which it is to be measured,is not dependent upon, or limited by, the availabilityof a technically accepted indicatoror detailed statisticaldata linkedto that indicator.77 However, there is also clearly a movement, perhaps not yet fully developed, towards creating specific "human rights" indicators that are different from development indicators. For instance, one expert writing for the UN workshop on economic, social and cultural rights indicators, declared that "entirely new indicators"are required.78Similarly,Tomasivski, writing in 1994, remarked that: Economicand social policies which intergovernmental developmentfinance agencies and individualgovernmentsare pursuingin practicedo not necessarily match correspondinghuman rights;that is a nationalpolicy on education may not include the contents of the human rightto education. Because the existing indicatorsderive from internationaland nationalpolicies ratherthan humanrights,they cannot be used as if they were humanrightsindicators.79 Virginia Dandan, the current Chairperson of the UN Committee on Economic, Social and Cultural Rights, is cited in the Philrights Indicators volume as distinguishing between the two kinds of indicators: "Human development indicators are premised on, or oriented towards, goals, not towards rights."80 TLirk,after discussing the use of development indicators, remarks: [T]the imperativeof examining issues such as the quality of work, worker controland subjectiveelementsof satisfactionand empowerment.... Applying traditionalquantitativeindicatorsto qualitativeissuessuch as these may require new approacheswithin the human rightsdomain, approacheswhich human rightsbodies and expertsmay be a good positionto develop.81 There does not, however, appear yet to be a clear consensus on what, precisely, would distinguish a human rights indicator from a development indicator, except perhaps for the obvious need to have information that could reflect discrimination and for the emphasis on legislative and other legal processes. In one respect, it is clear that indicators that take a snapshot of the current enjoyment by individuals and groups of access to food, health care,
77. 78. 79. 80. 81.
ON BENCHMARKS, ROUNDTABLE supra note 27. See Leckie, supra note 63. Tomas'vski, supra note 44, at 389. PHILRIGHTS,supra note 70, at 10. Turk, Progress Report, supra note 30, at 10.
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education, and other basic needs are highly relevant to the human rights community and are treated by it as crucially important. However, it is also clear that such information, in itself, is not enough to determine the actual state of economic, social and cultural rights in a country or for an individual.82 The issue needs to be discussed at greater length and remains one of the major gaps in the question of human rights indicators. It is possible that the solution will be found in a distinction that places the focus for human rights indicators on the obligations side of the human rights discourse, as discussed above. For instance, one possible distinction could be the following: "A human rights indicator is a means of determining the extent to which a government is complying with its obligations under human rights law. It is not (necessarily or only) a means of determining the extent to which individuals are enjoying access to basic needs-which would be a possible definition of a development indicator."
D. DistinctionsBetween Civil and Political RightsIndicatorsand Indicatorsfor Economic,Social and CulturalRights Is there is distinction in kind between indicators used for civil and political rights and indicators used for economic, social and cultural rights?At first glance, it appears as though there is indeed a difference between indicators used for civil and political rights and indicators used for economic, social and cultural rights. Ifthere is a stereotype, it is that lists of indicators for civil and political rights tend to be of the "thematic" type described above and focus on governmental obligations, while lists of indicators for economic, social and cultural rights tend to be of the "statisticsonly" type and to focus on enjoyment of the rights. When one looks more deeply into the actual literature and the monitoring procedures in place, however, the stereotype turns out to be
82.
After this article was completed, the Office of the High Commissioner for Human ANDDEVELOPMENT: WHAT,WHY, Rights, (OCHR) in a report entitled: OCHR, HUMANRIGHTS
How? (2000), made the following comments: For ease of reference and coherence in global assessments, development agencies often employ quantitative measures of poverty, such as those setting a threshold of one or two dollars a day. Specific indicators relating to certain economic and social factors (e.g., infant mortality, literacy rates, etc.) are also employed. But many aspects of poverty, some of which are crucial to a human rights analysis, are not reflected in the statistical indicators. Foremost are the critical vulnerability and subjective daily assaults on human dignity that accompany poverty ... This recognition of the fundamental importance of participation and empowerment to effective development strategies must be seen as a further indication of the necessity of a rights-based approach.
Id. at 10.
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false. In practice,bodies dealing with civil and political rightsalso make strong use of statisticalinformation,and bodies dealing with economic, social and culturalrightsoften rely heavily on non-statisticalinformation and take an obligations-sideapproach. The confusion can be traced in part to a matterof vocabulary.For instance, the authorof a recent book on reportingproceduresat the UN Committeeon Civil and PoliticalRightstells us thatthe word "indicator"is not often used in that Committeeto referto data relevantto the enjoyment of civil and political rights.83However, she mentionsthat the Committee frequentlyrefersto statisticalinformation. As this time, the Committeeis in the course of adoptingnew reporting so no furtherremarkson the guidelinesfor memberStateCountryReports,84 will for this be Covenant existing guidelines made.85Nevertheless,in its the Committee has Observations requested, inter alia, that Concluding states provide "qualitativeand quantitativestatisticaldata on the state of prisons"86;"statisticson complaints filed, prosecutions,convictions and sentences of members of the police and security forces for abuse of power"87; and "statisticson the participationof women in the conduct of public affairs.""88 Similarly,the Committee on the Eliminationof Racial Discrimination(CERD),occasionallyrequiresstatisticalinformation,such as when Committee members reviewing a report by Ecuador "requested specific data on the birth,death and life expectancy rates of indigenous populationsas comparedwith the populationas a whole."89 In the background paper prepared for the Canadian International Development Agency (CIDA),the indicators, that focus on civil and
83. 84.
85.
86. 87. 88.
89.
Ineke Boerefijn, private communication to author, 14 June 1999. For a critique of the use of indicators in the previous reporting guidelines for the ICCPR, see Thomas B. Jabine, James P. Lynch, & Herbert S. Spirer, Statistics in an International Human Rights Treaty Report invited paper, American Statistical Ass'n, Proceedings of the Section on Government Statistics, 1995. (On file with author.) The revised Reporting Guidelines of the Human Rights Committee were completed in July 1999, and revised in October 2000. The current version can be found in U.N. Doc. HRI/GEN/2/Rev.1, at 26. ParagraphC.6 states that "[a] report should include sufficient data and statistics to enable the Committee to assess progress in the enjoyment of Covenant rights, relevant to any appropriate article." Id. T1C.6. Concluding Remarksof the Human RightsCommittee on the initial report of Zimbabwe, U.N. Doc. CCPR/C/79.Add.89, 4 Aug. 1998, S 18. Concluding Remarksof the Human Rights Committee concerning the second periodic report of Sudan, U.N. Doc. CCPR/C/79/Add.85, 9 Nov. 1997, ? 17. Concluding Remarksof the Human Rights Committee on the second periodic report of Egypt, U.N. Doc. CCPR/C/79/Add.23., 9 Aug. 1993, T 2. In this case, the Committee expressed regretthat such information had not been included in Egypt'sCountry Report. Report of the Committee on the Elimination of Racial Discrimination, U.N. Doc. no. A/ 48/18, 15 Sept. 1993, ? 131. Thanks to Dr. Ineke Boerefijn for assistance in locating the preceding examples.
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political rights, include both indicators that are primarily statistical (such as the "increased [number] of polling stations") and indicators that are more "thematic" (such as "increased legislation relating to land rights, gender equality, [and] labour conditions").90 The Committee Against Tortureuses statistical information as well. The chapter in the Manual on Human Rights Reportingtells us that "with regard to each individual article, the report should provide information on the legislative, administrative and judicial measures taken to give effect to the provisions of the article under consideration, as well as information on any concrete cases of the application of those measures. In all instances, available statistical information should be included."'9 The Committee on the Rights of the Child makes extensive use of statistical information: the Implementation Handbook tells us that "[t]he Committee has frequently noted that without sufficient data collection, including disaggregated data, it is impossible to assess the extent to which the Convention has been implemented."92 The list of statistical data requested leans heavily towards economic, social and cultural rights, but it includes data focused on civil and political rights as well, such as: "details of cases concerning children who have been deprived of their liberty, including the percentage of cases in which legal or other assistance has been provided. .. ."93 The Committee on the Elimination of all Forms of Discrimination Against Women has also dealt with the issue of statistical information. This Committee's General Recommendations often address issues of information-gathering directly. Examples can be found in General Recommendation No. 9 ("StatisticalData concerning the Situation of Women"), which stresses the need to disaggregate by gender; and General Recommendation No. 17, (Measurement and Quantification of the Unremunerated Domestic Activities of Women and Their Recognition in the Gross National Product) which recommends that state parties "encourage and support research and experimental studies to measure and value the unremunerated domestic activities of women; for example, by conducting time-use surveys as part of their national household survey programmes.... ."94
90. 91.
92. 93. 94.
See Kapoor, supra note 39, at 16. Joseph Voyame & Peter Burns, The Convention against Torture and Other Cruel, ON HUMANRIGHTS Inhuman or degrading Treatment or Punishment, in MANUAL REPORTING, supra note 34, at 371. HODGKIN & NEWELL,supra note 42, at 67. Id. at 69. Zagorka Ilic & Ivanka Corti, The Convention on the Elimination of All Forms of Discrimination ON HUMANRIGHTS REPORTING, AgainstWomen,in MANUAL supranote 34, at 311 & 337.
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In its turn, the Committeeon Economic, Social and CulturalRights requests a great deal of informationthat falls more into the "thematic indicators"categorythan the "statisticsonly" category.For instance, both the Committee's ReportingGuidelines and its other documents focus heavily upon legislationand othergovernmentalmeasures.Statesare asked to describe for example, "the laws and practicesin your countryregarding rest, leisure, reasonablelimitationof workinghoursperiodicholidayswith and "the legal, administrative, pay and remunerationfor public holidays"9" and judicialsystemdesignedto respectand protectthe freedomindispensable for scientific researchand creativeactivity."96 However,some documentsdo indeedfollow primarilyone approachor the other. For instance,the "illustrativechecklistof indicatorsfor political freedom" in the Human Development Report 1992 is primarily "thematic"
in nature.Similarly,the UNDAFCCAindicatorsfor economic, social and culturalrightsare primarilystatisticalin nature. VII. THE ROLEOF HUMAN RIGHTSINDICATORSIN THE DEVELOPMENTDISCOURSE
There has been an increasedinterest,in recentyears, in the role of human rights in the development process. One new book, published by the AustralianCouncil on Human Rights,Inc. (and mentioned in section VI above) focuses explicitly on the role of human rights in the actions of developmentaid donors.97The backgroundpaperon humanrightsindicatorspreparedforCIDAincludesan interestingsummaryof the workof other national developmentagencies in developing human rightsindicatorsfor use in their programs.In fact, for those interestedin producinga more detailedstudyon indicators,it would be well worthfollowingup with those agencies to achieve practical knowledge of how indicators are being conceived among nationaldevelopmentpractitioners. On a theoreticallevel, there has been valuable discussion,within the UN humanrightsand developmentcommunitiesand among NGOs,of how humanrightscan fit into the developmentprocess. UNDP,for instance,has recentlyissued a book on this subjectand the UNDAFprogramappearsto be the practicaloutcome of internalUN discussions.A few of the more
95. CESCR,ReportingGuidelines,supranote 42, art. 7 (5). 96. Implementation of the International Covenanton Economic,Socialand CulturalRights: Compilationof IssuesRelevantto the Examinationof StatesPartiesReports(Informal 1 May 1996, at 38. paperpreparedby the Secretariat)U.N. Doc. E/C.12/1996/REF, 97. See Francovits& Earle,supranote 70.
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interesting theoretical statements, therefore, may be of interest to the narrower question of the role of human rights indicators in the development field. Three are given below: 1. The PhilRights report on economic, social and cultural rights indicators begins with the following statement, in the forward by Philip Alston: There are two major stumbling blocks that obstruct the efforts of those who wish to give substance to the concept of economic, social, and cultural rights. The first is one of promoting the use of the appropriate terminology, and the second is one of establishing societal accountability. The first stumbling block arises because of an insistence on the part of governmental officials and their counterparts in international organizations, that the language of rights is superfluous or unnecessary in relation to development issues. "It is lawyer's jargon," they tell us. Or, they say, "It only creates false hopes among the poor. .. ." Anyone who has spoken with development economists, government officials or experts from international agencies about economic and social rights will almost certainly have been told: "What does it matter if we call something a right, a need, a goal, an objective, or a target? It makes no difference, since we all want the same result! The reality, of course, is that it makes a world of difference. Needs can be deferred until those in power think it might be timely to address them. Needs can be defined and formulated by experts; they are usually seen to be eminently flexible and relative .... Rights, on the other hand, belong to individuals, who can and will assert them and strive to give them meaning and substance. They can be neither expropriated, nor defined, nor arbitrarilyput on the back burner, by officials.98 2. Again Alston, in the Benchmarks workshop: A commitment to [economic, social and cultural] rights cannot be given effect solely by reference to surrogate terms such as poverty reduction, social exclusion, basic needs, human security and so on. While these all describe important issues and responses they lack the indispensable elements of a human rights framework. Simply expressed, those elements are: normative specificity, an accepted legal obligation, a commitment to the use of all appropriate means, the provision of forms of redress in response to violations and the establishment of mechanisms of accountability at the national and international levels. The use of the terminology of economic, social and cultural rights is thus essential.99
98. 99.
PHILRIGHTS, supra note 71, at 1-2. ON BENCHMARKS, Alston, ROUNDTABLE supra note 27.
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3. Sakiko Fukuda-Parr, in a seminar paper delivered to Columbia University: [I]ntroducinghuman rights into development analysis turns objectives and goals into rightsand entitlements,responsibilitiesand accountability.Integrating human rights into development opens up a whole new agenda-of strengtheningthe institutions,the consensus on norms, legal standards,and politicalprocessesto strengthenthe mechanismsof enforcingentitlementsand accountability.10"
VIII. CONCLUSION AND RECAPOF DISCUSSION POINTS The field of human rights indicators is not a coherent one, and there remain a number of areas in which there is no theoretical consensus. In the beginning of the article five issues were identified that seemed to be the most important, whether because they were the most unclear or because they were in a practical sense the most useful within the context of the upcoming HDR. The first question, "Isthe word 'indicator' used within the human rights community to refer to information beyond statistical data?" was fairly straightforward,and it was answered in the affirmative in section V. The second question, "Is there a difference in kind between indicators designed to measure economic, social and cultural rights and indicators designed to measure civil and political rights?" was more difficult. We concluded, in section VI above, that despite appearances there was in fact very little difference between the kinds of indicators used to measure the two categories of rights, with indicators of several kinds being applied in each case, even if not under the term "indicator." The third question was not answered fully. The question was, "Is there a practical distinction to be made between indicators designed to measure states' compliance with their obligations under the various human rights treaties and indicators designed to measure individuals' and groups' enjoyment of their human rights under the various human rights treaties? If so, to what extent have effective indicators been developed to measure compliance and enjoyment respectively?" In section VI the answer was, in effect, that it was an open question in the field as to whether there was reason to choose one approach over the other, but that we saw practical reasons for leaning towards obligations-focused indicators. We gave several examples of indicators that reflect each of the two approaches, but did not attempt to evaluate their effectiveness. That is an issue for another, much longer study.
100.
Fukuda-Parr,supra note 57, at 5-6.
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The fourth question was, "Is there a distinction to be made between indicators concerning economic, social and cultural rights and indicators that measure levels of development or conditions of poverty?" Section VI demonstrated the various views in the current discourse and showed the confusion that exists in the field over this issue. A tentative suggestion was offered that a possible distinction might be found precisely in the emphasis on an obligations-based approach rather than an enjoyment-based one. The fifth question, "What are the kinds of indicators currently being used by UN bodies, NGOs, and scholars with regard to the human rights guaranteed under the various international treaties?" was addressed in the course of the article ratherthan in any single section. In section IV we tried to show the current confusion between indicators based on statistics and indicators with a more thematic content. In section VI we talked about indicators that focus on states' actions and statistics that focus on people's experience. Throughout, we tried to give a wide-ranging number of indicators from NGOs, UN bodies, scholars, and others so as to present a general view of the kinds of indicators in use.
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