Enforcing economic, social and cultural rights from the perspective of Bangladesh

Table of contents

List of acronyms

Research methodology

Objectives of the research

Research questions

Abstract

1. Introduction

2. Historical approach and development of ESC rights
2.1. Background
2.2. Gradual progress of ESC rights

3. ESC rights in the present world
3.1. Formal recognition of ESC rights
3.1.1. Domestic recognition
3.1.2. International recognition
3.2. Informal recognition of ESC rights

4. ESC rights in Bangladesh
4.1. Constitutional laws
4.2. Fundamental principle of state policy
4.3. ESC rights and CP rights
4.4. Real scenario of ESC rights
4.5. Restriction to the enforcement of ESC rights

5. International laws and agreements

6. Justiciability

7. Way out to enforce ESC rights
7.1. Judicial enforcement of ESC rights
7.2. Application of international jurisprudence
7.3. Enforcement of international agreements on ESC rights
7.4. Increase the working facilitation for NGOs

8. Recommendation

9. Conclusion

Bibliography

ACKNOWLEDGEMENT

At first, I would like to thank Almighty Allah for giving me the opportunity and ability to prepare this research paper successfully. With his shower of blessing, I have completed this research paper with all the necessary information. First and foremost, I would like to express my sincere gratitude to my thesis supervisor Nour Mohammad, Assistant Professor, Department of Law, Premier University Chittagong, for his constant guidance, advice and encouragement as well as passion in motivating the completion of my term paper. Finally, I would like to give my sincere thanks to beloved family member for offering consistent support in many ways and will always be remembered and deeply appreciated to me.

List of acronyms

Abbildung in dieser Leseprobe nicht enthalten

Research methodology

This research paper is a combination of both qualitative and quantitative research taking resort to empirical tools. It is based mainly on primary and secondary data. Primary data collected from questionnaire survey, observation, focus on group discussion and secondary data were collected from different journals, books, newspapers, websites, NGOs, and published and unpublished documents. This research constituted comparing many international and national documents regarding ESC rights and purposive data has been used to articulate the research question in comprehensive way. And also, this research is constituted generalizing and interpreting data after analysis data and hypothesis testing.

Objectives of the research

Economic, Social and Cultural rights has been denying in all around the world. Although there is many international documents for the protection of human rights, it did not incorporated to the legal instruments in many states. In that case, Bangladesh is the witness of judicially non enforceable of ESC rights. So, I look forward to some logical way-out to get rid of this problem by having some through research covering issues that will pave the way extensively. The ultimate object of this research work is to identify the exact road map of smooth application of ESC rights. Moreover I would like to cover gaps in the knowledge regarding this field by taking a comparative study into this research.

Research questions

Enforceability of Economic, Social and Cultural Rights is the most important factor for ensuring human rights. Except Economic, Social and Cultural rights human rights is nothing. So, enforcing mechanism may bring with some sensible way out to enforce ESC rights in Bangladesh. How? What are the proximate impediments in the path of smooth enforcements of ESC rights? Is current law incorporating ERS rights? What it says? Is satisfactory in term of enforcement it serves? Why is it perceived as needing reform?

Abstract

Economic, social and cultural rights is not enforcing hardly comparing with civil and political rights. In the present world, gross violation of economic, social and cultural rights is very common and in everywhere people are looking for getting help. Although there is many legal instruments for the enforcement of ESC rights, non-enforceability of ESC is the great barrier for ensuring these rights among the people. This research paper will be helpful to enforce Economic, Social and Cultural rights throughout instructive and suggestive way and also would be helpful to identify the gross violation of Economic, Social and Cultural rights.

Furthermore, this paper would be helpful to identify what extend ESC rights is available for the nationals of Bangladesh and people of the world as well. In this paper, I try the best to put why enforcement of ESC rights is not possible exhaustively and what is the limitation in that regard. This paper is the analytical outcome of various research paper, books, and many legal instruments which was constituted in earlier time. This thesis also provide the decision to being actively promoting and depending Economic, Social and Cultural rights.

1. Introduction

All people have the inherent right to life.¹ Right to life includes Economic, Social, Cultural, Civil and Political rights. Right to life refers the human fundamental rights and fundamental needs as well. Every human being have right to pursue their Economic, Social and Cultural development.² But this is the matter of concern that, ESC rights does not exists as much as CP rights and in many time it is disconnected to each other and too much controversial that weather enforcement of CP rights will prevail other than ESC rights or not. It is the duty of the state to ensure the ESC rights among the people and have to provide more facilities regarding ESC rights.

Economic, Social and Cultural rights includes the right relating to the workplace, social security, family life, participation in cultural life and access to housing, food, water, health care and education.³ For a human being none of these rights are less important, rather it is more important that implementation of CP rights should be less then ESC rights. In that context, Civil and Political rights is nothing if the enforcement of ESC rights remain unenforced because no one can rise voice if they do not get basic needs of them to survive their lives. So, ESC rights and CP rights both are interconnected and for making a sustainable development of the country enforcement of ESC rights is more important than CP rights.

In many developed country they ensured their ESC rights throughout their constitution and legal instruments. But in many developing and poor country could not ensure their ESC rights throughout their legal instruments because there is lacking of resource and they are not able to provide basic needs among the people. Conversely however, even the partitioning of CP and ESC rights into two groups, both philosophically and procedurally is not agreed by all.⁴ So the field of its implementation is vary from one country to other and also the concept of its implementation is differ.

Though Bangladesh rectify the International covenant on Economic, Social and Cultural Rights by fifth October in 1998, it says that, it will implement with the existing economic condition and developments plans of the country.⁵ Enforcement of ESC rights does not grunted by Bangladesh constitution whereas the enforcement of CP rights is well established. In that case, though there is many limitation to enforce ESC rights, it may overcome but ESC rights shall not be well established until it is being incorporated to legal instruments.

2. Historical approach and development of ESC rights

Development of Economic, Social; and Cultural rights is not the result of few days or a single decade, it is the outcome of many and more decades and also the witness of many struggle. Very early period of the civilization, people were concern about their rights and human rights as well but it was not expressly for every time, the people were raised their voice impliedly to ensure their rights. So in that perspective ESC rights revolution is connected with the human civilization.

2.1 Background

From the beginning of the industrialization in eighteen and nineteen century there was not well established instruments for the protection of Economic, Social and cultural rights at that time poor people were the witnessed of atrocities. When it has been clear that specific people or institutions were the cause of specific condition then the people were frequently rebelled⁶ and they have faced barbarity by the superior one there was no justice for the poor people to protect their ESC rights. So ultimate outcome of industrialization and urbanization was onset of exploitation. In the early phase of urbanization there was dangerous working condition for the children and adult people as well.

Exploitation of labor during the decades of industrial revolution was the great violation of Human rights as well as Economic, Social and Cultural rights.⁷ For establishing such human rights many international instruments were adopted and in 1905 there were enacted the first stander international labor legislation⁸ in which many effective rules had been adopted to reduce the exploitation of labor, changing the working condition of children and adult and also recognizing the lasting universal peace. After that, the world is the longer witness of two world war and at that time there was the great violation of human rights and degrade the human values. Although there was some international organization like League of Nation tried to reestablish the nations after the World War II, it fails and there was nothing to do till then the establishment of United Nation in 1945.

After the World War II, the people of the world was very concern about the aftermath of the destruction of the world war and established a new strong international organization as United Nation. At that time the first major initiative creation was the Universal Declaration of Human Rights and it included the civil and political rights as well as economic, social and cultural rights.⁹ In 10th December 1948 Universal Declaration of Human Rights were adopted by UN General Assembly and it was the great significance declaration for all human being. Universal declaration on human rights provides all directives for the nations to ensure the human rights by the legal instruments of their own state.

2.2 Gradual progress of ESC rights

Advancement of Economic, Social and Cultural rights have taken a long time with the gradual development of human being. Although the modern and effective progress of ESC rights were started from Universal Declaration of Human Rights, it was not static. It was an ongoing process throughout the world and many time international authority have taken steps to promote human rights. In 1966, International Covenant on Economic, Social and Cultural Rights was to be implemented by Economic and Social Council of UN and also would be oversee a reporting procedure¹⁰ were held to promote ESC rights and have provided directions towards the nation to take necessary steps for ensuring ESC rights within their legal instruments as per possible.

For the development of human rights, it does not meant the rights of an individual, rather it meant that the right to be universal and apply to each and every person on the planet and also it exists at the international level as norms of justified or enlightened political morality.¹¹ Furthermore, in the development of human rights many international convention were held like that, International Convention on Elimination of Racial Discrimination 1965 and International Convention on Elimination the Discrimination Against Women 1979 etc. and many of them are provide directions to establish and promote ESC rights.

In addition, it has 2.2 million member in over 150 countries around the world doing research and investigation in to human rights violation followed by public discloser in order to generate action to end such abuses,¹² and to make a sustainable development and ensuring the human rights provided by international legal instruments. Moreover, in such progression ESC rights there is working many international organization like UNHCR. It may be said that, if all the state are willing to develop their legal instruments regarding the enforcement of ESC rights and take initial steps, it would sea change in development of ESC rights.

According to the above context, although human rights was based on the Madina charter and Megna carta at the time 1215, it was not remain to a specific point and now it has sea change. In the development of human rights as well as ESC, it has been given many legal instruction by English Declaration of the Rights of Man (Bill of Rights) 1689, U.S Declaration of Independence (1776) Geneva convention (1864) and Hague Convention (1899 and 1907). The present conditions of ESC rights and as per its enforcement is not the result of a single decade rather it has taken more than one century. Whatever, standing on the todays position we don’t see a remarkable change rather in many time we cry for humanity and don’t get a single tonic to survive the life.

[...]

¹ ICCRC Article 6(1)

² ICESCR Article 1

³ Frequently asked question on Economic, Social and Cultural rights, fact sheet No 33, Geneva, ISSN 1014-5567, December 2008

⁴ A short list would include Jack Donnelly in “Post-Cold War Reflections on the Study of International Human Rights” in Ethics international affairs: a reader, ed. Joel H. Rosenthal, (Washington, D.C.: Georgetown University Press, 1999. http://www.unhchr.ch/huridocda/huridoca.nsf(Symbol)/A.CONF.157.23.En (Retrieved 4 June, 2008).

⁵ https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY mtdsg_no=IV-3 chapter=4 clang=en

⁶ Module of social rights at St. Thomas University; 2012

⁷ Nancy Abelmann, Echoes of the past, epics of Dissent; A south social movement; 1996. 27

⁸ Cyril L.R. James. The Black Jacobins; Toussaint L’ouverture and the San Domingo Revolution, New York, 1963.

⁹ UDHR-articles 22-27 it declares the right to social security, the right to work, and leisure, the right to an adequate standard of living, the right to education, the right to freely participate in the cultural live of the community

¹⁰ Eric Hobsbawm, Age og Extremes: The Short Twentieth Centry 1914-1991; Vimtage 1996; 498.

¹¹ James W. Nickel, Making sense of Human Rights, 2nd Ed, (Oxford: Blackwell Publishing, 2007), 10.

¹² http://www.amnesty.org/en/who-we-are, (Retrieved April 19, 2008).