DC Bulletin

The Cinderella Rights

As a young economist with FAO, I worked with a team that was framing a General Comment on the right to food. Some questions have been nagging me since. The idea that all humans have rights to food, shelter, and basic healthcare seems uncontroversial. Almost all countries (the US is an exception) have ratified the International Covenant on Economic, Social, and Cultural Rights.

And yet in most countries these three rights are not recognized as constitutional rights. Globally, the are rarely cited in litigation.

What explains the poor cousin or – as Phillip Alston, a leading advocate for socioeconomic rights puts it – the “Cinderella rights” status of these rights?

My research demonstrates that they are, indeed, a uniquely ignored class of rights, statistically less likely to be incorporated in constitutions than other classes of right. Total global legislative citations of the right to food to date are fewer than the citations of the right to vote in one US state in one (rather conflicted) month.

What explains this global pattern of ratification without commitment?

Rights on Paper

I examine the relationship between incorporation of rights and associated indicators of well-being. Unsurprisingly, having the constitutional right to food, shelter, or healthcare, appears to be unrelated to outcomes such as nutritional status, likelihood of homelessness, or basic health indices.

Although we can’t conclude definitively that socioeconomic rights are ineffective, the evidence certainly points in that direction. It’s unsurprising, because if the rights are rarely litigated it is hard to see how they could have any impact.

Towards an Explanation

I hypothesize that socioeconomic rights are a great idea that never happened because the language of socioeconomic rights is vague and indeterminate. The language was kept vague as a deliberate strategy of the framers in the mid-1960s, in the midst of the Cold War. It worked. Countries ratified the ICESCR because it was vague enough to make just about any policies and practices acceptable.

This is consistent with some great papers on vague and incomplete contracts. In fact, the theory of incomplete contracts also plausibly explains why countries might ratify the Covenant without committing to implementing the rights.

The General Comments, like the one I worked on in the 1990s, intended to clarify the socioeconomic rights, transformed them into extremely broad sets of obligations without providing clear guidance on what constitutes a violation. When vagueness is translated into domestic legislation is means that just about anything a government does can be counted as a violation of some reading of the right. In other words, the vagueness that was beneficial for achieving ratification proved to be a liability when it came to implementation.

More precise, more calibrated

I conclude that overcoming the ratification-without-commitment impasse will require a precise definition of the minimum obligations associated with each economic right, which is tailored to countries’ ability to meet these obligations. A reasonable schedule of expectations would allow countries with constrained fiscal capacities to take on reduced liabilities. There is a lot of debate on what core expectations may consist of, and Katherine Young does an excellent job of highlighting the pitfalls of the different models for identifying a core. But a pragmatic focus on what is fiscally and politically attainable anywhere would be a start.

For all people to have a meaningful right to food, shelter, and healthcare, it seems to me that all governments need to commit to a clear set of non-abstract actions. Most governments will remain reluctant to commit as long as vague rights carry immense political, financial, and reputation liabilities.

Please let me know if you are interested in seeing the draft paper.