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The paper is forthcoming in the American University Journal of Gender, Social Policy & the Law, Volume 10, Issue 3

Abstract

This article uses post-colonial theory to examine the cluster of international human rights known as economic, social and cultural rights. The article surveys the jurisprudence of the UN Committee on Economic, Social and Cultural Rights, making it relevant for scholars of international human rights as well as post-colonial theory.

Traditionally, international human rights divide into two branches: 1) civil and political rights, and 2) economic, social and cultural rights (ESCRs). ESCRs were virtually ignored during the cold war era, but they now receive expanded attention at the international and regional levels. The creation of the UN Committee on Economic, Social and Cultural Rights in the mid-1980s began this process. The Committee has been highly influential in ESCR norm development.

Post-colonialism is a branch of critical theory aimed at exposing the exploitative and paternalistic legacy of the international community's relationship to former colonies in the developing world. There is a small body of post-colonial theory literature examining international human rights, but it focuses on civil and political rights. The author, a specialist in ESCRs, seeks to engage theorists with another branch of human rights. ESCRs should be of interest to post-colonial theorists because these rights implicate economic national sovereignty, most importantly social spending. Developing country social spending has been uniquely politicized in post-colonial north-south relations through controversies over structural adjustment and trade liberalization.

Post-colonial theorists should acknowledge that emerging ESCR jurisprudence and Committee procedures are responsive to north-south concerns on many levels. For example, the Committee's Concluding Observations concentrate on recommendations rather than on "violations." This modality permits sensitivity to differential southern budgetary realities while facilitating critique of wealthy egalitarian countries. A second example is that the Committee is progressive, within its limited means, about facilitating participation by "subaltern" southern groups.

An important challenge post-colonial theory presents to the emerging ESCR regime is the Committee's record on encouraging southern governments to protect social welfare spending from external pressure. What does it mean for a country to cut social spending by IMF mandate, incur external debt for large-scale development projects through World Bank, and lower trade barriers pursuant to the WTO, only to be condemned by a UN human rights body for any resulting intensification of hunger, ill health and population displacement? The Committee could adjust its processes to better address this conundrum by routinely pursuing and analyzing information about the status of international negotiations.

Disciplines

Human Rights Law | International Law

Date of this Version

September 2003

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