Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

In Indigenous Peoples and Human Rights: International and Regional Jurisprudence, Ben Saul examines how Indigenous peoples have interpreted and adapted human rights standards to their unique experiences. The book begins by analysing the different approaches at international law for identifying who is ‘Indigenous’ before delving into the jurisprudence of UN human rights treaty bodies and regional human rights bodies. It concludes with a brief overview of future implementation challenges for Indigenous peoples and human rights.

Saul starts with an analysis of how Indigenous peoples are identified at international and regional law. A difficult question with no definitive answer, it occurs at many different levels and contexts, and involves a wide range of communities and groups. Nevertheless, in most cases who is Indigenous is not a controversial question, though Saul is careful not to dismiss the difficult struggles for recognition still occurring in many countries. The main focus of the book, however, is the struggle over the rights Indigenous people are entitled to under international and regional law.

At the international level Saul examines the jurisprudence of UN human rights treaty bodies and their use for Indigenous rights. The International Covenant on Civil and Political Rights (ICCPR) receives the most treatment with the right to self-determination found in Article 1 being adapted by the ICCPR Human Rights Committee for the specific circumstances of Indigenous issues. However Article 27 of the ICCPR, the right of minorities to enjoy their own culture, has been the right most often raised with respect to Indigenous issues. Due to the lack of Indigenous-specific rights, Indigenous peoples have used minority rights to make human rights claims. These cases have usually focused on traditional Indigenous economic and cultural attachments to land. Saul argues, however, that adapting the framework of minority rights for Indigenous issues is ultimately an imperfect solution and in practice the implementation has been cautious.

Though used less, other UN human rights treaty bodies, such as the UN Committee on Economic, Social and Cultural Rights and the UN Committee on the Elimination of Racial Discrimination have nevertheless dealt with Indigenous issues. Rights to culture and self-determination have been dealt with by the former whereas the latter has dealt with issues of discrimination, the lack of recognition of Indigenous groups and access to justice issues. The Committee on the Elimination of Discrimination Against Women, the Committee on the Rights of the Child and the Committee Against Torture have also dealt with Indigenous issues within their specialty areas.

Following the above analysis of Indigenous rights at the international level, Saul moves to the regional plane, focusing on how the Inter-American and African human rights systems protect Indigenous rights. The protection of property and resource rights, along with cultural, socio-economic and civil rights are all examined in turn. Throughout these sections Saul suggests that the American and African regional systems have gone further than the UN treaty bodies in protecting Indigenous interests. Whereas the international system is abstract and ambiguous Saul argues that the regional systems offer a certain detail and clarity to Indigenous rights.

Indigenous Peoples and Human Rights: International and Regional Jurisprudence is a thorough and well researched analysis of the use of human rights by Indigenous peoples. Though perhaps overly academic for the casual reader, its subject matter makes it useful to anyone interested or involved in Indigenous rights. More broadly, the book can be viewed as an example of how human rights jurisprudence has been influenced, affected and used by a specific group. This makes it useful for those interested in adding a human rights based approach to their argument as well as those practicing generally in human rights.

Kevin Jackman completed his Practical Legal Training at the HRLC.

International LGBTI activists assemble in Montevideo for Equal Rights Coalition launch

Around the world, lesbian, gay, bisexual, transgender and intersex (LGBTI) people face discrimination, violence and serious threats to basic human rights. LGBTI activists work with governments through various fora to address these issues, including through the Human Rights Council and other multilateral mechanisms. Recently, Latin American countries headed a ground breaking resolution for the first UN Independent Expert on Sexual Orientation and Gender Identity in the Human Rights Council.

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Book Review: The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials

Ben Saul, David Kinley and Jacqueline Mowbray, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases and Materials, Oxford Uni Press, 2014.

The International Covenant on Economic, Social and Cultural Rights is often described as the ‘poor cousin’ of its better understood counterpart, the International Covenant on Civil and Political Rights. The publication of this comprehensive and ambitious work professes to mark something of ‘a coming of age’ in our understanding of economic, social and cultural right. The detailed assembly of primary materials, together with commentary, case extracts and contextual discussion no doubt meets this ambitious objective.

Structured in a way that makes it a good counterpoint to Sarah Joseph and Melissa Castan’s comprehensive publication on civil and political rights, the book provides an article-by-article analysis of the Covenant after only the briefest of introductions. As such it is an ideal reference for practitioners and scholars who are well-versed in the history and practice of human rights law generally, but who require access to detailed commentary in relation to individual rights enshrined in the Covenant.

Having cause to delve into the chapter on the ‘Right to Health’, I discovered a very readable narrative in relation to the drafting history of Article 12, the conceptual debates that have arisen in that context and the tensions inherent in applying the right to health in the context of the broader field of human rights (for example, the tensions between reconciling public health initiatives with the rights of individuals in relation to health and autonomy). The chapter explores the socio-economic contexts which impact on the realisation of the right to health as well as the general nature of the obligation imposed upon states, including in relation to the international obligations of states. The chapter also contains useful commentary in relation to the extra-territorial obligations of states to persons within their jurisdiction but outside of their territory as well as persons affected by the acts of corporations regulated by the state in question. In exploring these legal technicalities, the authors are clearly mindful of the contemporary context of extreme and growing global inequality as well as questionable state practices in this area. Clearly the current era of economic globalisation demands and enables international cooperation to ensure the universal enjoyment of these important rights. At the same time, the foreign aid budgets of wealthy states are not keeping up and many states attempt to avoid their human rights obligations through artificial constructs and by reference to narrow ideas of territory and jurisdiction. 

The publication of the book is also particularly timely considering that the Optional Protocol to the Covenant entered into effect only three years ago and is still in its infancy as a potential avenue for those suffering serious violations of economic, social and cultural rights. The Optional Protocol establishes three new procedures for the protection and enforcement of rights under the Covenant, namely an individual complaints procedure, an inter-state complaints procedure and an inquiry procedure that may be engaged when ‘reliable information indicating grave or systematic violations’ is received by the United Nations Committee on Economic, Social and Cultural Rights. As practitioners prepare and respond to complaints and inquiries under these new procedures, they will have access to a detailed commentary which provides historical context, interpretative guidance, jurisprudence and scholarly discussion in relation to all of the substantive rights enshrined in the Covenant.

Saul, Kinley and Mowbray’s book is a welcome addition to the library of any human rights practitioner and will no doubt become a dog-eared favourite in the years ahead.

Lisa Button - former HRLC volunteer lawyer and now asylum seeker and refugee policy and advocacy advisor at Save the Children Australia.