By Thalia Viveros-Uehara
Thalia Viveros-Uehara is a Doctoral Candidate at the University of Massachusetts Boston (USA). She holds an MSc in Environmental Policy and Regulation from the London School of Economics and Political Science (UK) and is a Visiting Scholar at the Max Planck Institute for Comparative Public Law and International Law (Germany). Previously, Thalia served as an Adviser to the Mexican Senate and as Director of Advocacy and Civil Society Participation in the National Human Rights Commission of Mexico. She is currently a Graduate Researcher at the Boston Human Rights Commission (USA).
Introduction
The work of the United Nations Committee on Economic, Social and Cultural Rights (CESCR) has been instrumental in promoting and protecting economic and social rights as this body oversees the implementation of the rights enshrined in the International Covenant on Economic, Social and Cultural Rights (ICESCR). An essential vehicle for advancing this mission during the nearly 40 years of the CESCR's existence has been the participation of civil society actors in the monitoring of the States’ human rights obligations, just as the Committee recognise in its General Comment No. 1 (1989). Crucially, NGOs and other civil society groups help the CESCR supervisory mechanism verify the real situation of human rights on the ground by submitting alternative reports. Reciprocally, such a mechanism allows civil society to strengthen its human rights advocacy because this non-judicial procedure arguably entails fewer access barriers than judicial mechanisms and can yield structural impacts on policymaking.
However, as human rights advocacy becomes more trasnationalised and praises professionalisation, some civil society groups have demanded that the CESCR monitoring mechanism - along with those of other treaty bodies - be accessible not just to international and technically skilled NGOs but also to grassroots organisations. Indeed, rising socioeconomic inequalities are widening the barriers for vulnerable individuals to engage in transnational strategies or acquire professional competencies. Given that grassroots organisations consist of groups of local individuals who belong - or are close - to populations affected by human rights violations or living in vulnerable situations, the question of how receptive such a mechanism has been to them has never been timelier. This contribution introduces a study recently published in the Journal of Human Rights Practice that examines such a crucial inquiry, thus providing a clearer understanding of the Committee´s opportunities and challenges to ensure equal participation and therefore, crucially, protect the rights of the most vulnerable voices.
By using as case studies the reviews that the CESCR has conducted on Argentina, Ecuador, and Uruguay specifically pertaining to the right to water, the study scrutinises whether the CESCR monitoring mechanism has ‘heard’ the voices of -and concerns related to - the most vulnerable sectors of society. The research’s focus lies on these countries because they illustrate how strategic both transnationalization processes and the professionalization of civil society have been developed to make local water struggles visible. The article constitutes the first empirical assessment of the CESCR monitoring mechanism's receptiveness to non-transnationalized and non-professionalized voices regarding their right to water. The following paragraphs begin by providing some context on the significance of civil society participation in the CESCR monitoring procedure; they then highlight the challenges posed by transnationalization and professionalization processes for human rights advocacy in Latin America. The last paragraphs offer a glimpse of the study’s findings and concluding remarks.
1. Civil participation in the CESCR monitoring mechanism: relevance and challenges
In 1993, the CESCR institutionalized the engagement of civil society in its monitoring mechanism with the adoption of guidelines for NGO participation, which the Committee further modified in 2000. Thus, in 1994, three international NGOs submitted for the first time alternative reports to the CESCR review on Gambia just seven years after the Committee held its first session in 1987. And since then, civil society participation in the CESCR monitoring mechanism has been on the rise. Its involvement has been instrumental in making visible the real situation of human rights on the ground. The mechanism also draws the attention of States to the concerns of civil society in a more accessible way than judicial processes do - as bringing claims before the latter system entails high costs for the plaintiffs and can also last for several years.
The growing engagement of civil society actors not only in the CESCR monitoring mechanism but also in those of other treaty bodies is a symptom of democratic governance, globalization, and the shrinkage of state intervention that the neoliberal model promotes. At the same time, these phenomena drive domestic and grassroots civil society actors to take on mainstream strategies of collaboration with international NGOs and the adoption of technical skills under a standardized language. This trajectory has led international NGOs with professional competencies to gain prominence as interlocutors of grassroots actors before the UN human rights system, a relationship in which the latter groups do not always see their interests duly represented.
Against such a power structure that favours more resourced actors, civil society groups have demanded UN treaty bodies to ensure full participation and inclusion of contributions by local movements. Also, because rising socioeconomic inequalities limit opportunities for the most vulnerable sectors of society to network internationally and acquire standardized competencies, the question of ensuring their participation (and having their concerns heard) before the Committee has never been timelier.
2. Claiming the right to water in Latin America: a tale of transnationalisation and professionalisation
One of the rights whose implementation the CESCR monitors through its supervisory mechanism is the right to water—which the Committee’s General Comment 15 recognized in 2002. It is also a right whose advocacy strategies epitomize the effects of transnationalization and professionalization. This is particularly visible in Latin America. Water resistance movements that emerged in this world region during the 1990s strategizedaround both the involvement of international and domestic NGOs with grassroots communities and the language of the right to water as a common framing for defending water resources.
In Argentina, for example, transnational collaborations between civil society actors led to the enactment of legislation to protect water rights, while in Ecuador they ignited the recognition of water as a collective right. The same is true in Uruguay, where such synergies resulted in the amendment of article 47 of the national constitution in 2004, which promoted the acknowledgement of water as a common good. Despite these advancements, the lack of access to quality water still disproportionately affects the most marginalized groups in these three countries. Current figures point to Indigenous groups, persons with disabilities, and low-income rural communities falling behind national averages in their access to such a service. And no less worrying is the setback that the right to water experienced during the COVID-19 pandemic in some Latin American countries, which mainly affected Indigenous populations—as it has been highlighted in this Blog.
Moreover, the pertinacity of international and domestic NGOs to speak for local communities whose realities are most of the times dissimilar from those of the organizations’ staff raises serious doubts. In the same vein, commentators argue that the professionalization of grassroots movements, which consists of formalizing their organizational forms and standardising their skills and knowledge, undermines these actors’ potential to envision and erect truly transformational alternatives to structural challenges.
In our current reality where socioeconomic inequality and exclusion are rampant, opportunities to deploy mainstream strategies (based on transnational collaboration and professional skills) for engaging with the CESCR monitoring mechanism shrink, thereby keeping out the voices and concerns of local individuals and groups who are already living in vulnerable situations. If these populations are not given equal participation before human rights bodies, it is unlikely that such institutions and their accountability mechanisms hear - and thus act according to - the concerns of excluded actors. Hence, it is worth examining whose claims the Committee has considered: Has it heard the voices of the most vulnerable individuals and groups who are neither internationally networked nor professionalised?
3. Equal participation in the CESCR monitoring mechanism is on the way… but not quite yet
The study employed a multi-method approach to examine how receptive the monitoring mechanism of the Committee has been to the voices and concerns of the most vulnerable populations by identifying what it has effectively ‘heard’ and thus incorporated into its lists of issues (LOIs) and concluding observations. Specifically, the assessment drew on content analysis to trace the matches in language between alternative reports (for LOIs and sessions) and the Committee’s output documents across the periodic reviews conducted in Argentina, Ecuador, and Uruguay. Further, to expand on the circumstances and interactions between civil society and the CESCR, semi-structured interviews were conducted with members of the Committee and NGOs.
A comparative glimpse across the reviews that the CESCR conducted on the three countries laid bare that the right to water has been an issue of concern for civil society actors. The monitoring mechanism has witnessed a consistent engagement of international and domestic actors through their submission of alternative reports for LOIs and sessions, which referred to the right to water of specific groups (children and adolescents, Indigenous peoples, migrants, persons with disabilities, prisoners, and detainees, and women). In contrast, the involvement of grassroots peoples was less prominent. This is indicative of how transnational strategies have been consolidated in civil society’s defence of the right to water before the CESCR monitoring mechanism. It also shows how the realization of such a right is increasingly associated with particular demographic expressions. In other words, even when the realization of the right to water in Argentina, Ecuador, and Uruguay is outspokenly challenging for vulnerable populations, in the CESCR monitoring mechanism these concerns are neither raised by such groups themselves nor by grassroots actors but by domestic and international NGOs.
The analysis further identified that the Committee has included in its LOIs and concluding observations concerns on the right to water raised by alternative reports from different civil society actors - international and domestic NGOs and the few grassroots actors. While this seems to point to the CESCR’s contribution to equalizing participation opportunities in its mechanism, the study simultaneously found that it neglected claims that were raised by only one alternative report. Noticeably, these overlooked claims pertain to challenges that groups with intersectional identities and who experience little public empathy experience in the analysed countries. More specifically, isolated water-related concerns of girls with disabilities, Indigenous women, migrants, and prisoners and detainees were not included either in the Committee’s LOIs or in its concluding observations. This suggests that claims need to be reiterated by more than one alternative report to become visible before the eyes of the Committee.
Given that having a claim reiterated by more than one alternative report may require civil society actors more (professionalised) time and resources, failing to equally allot weight to both one-off and reiterated concerns does little to counter current power structures favouring more resourced actors. Because isolated claims unveil the specific obstacles of populations rendered invisible due to interlocking forms of oppression or pervasive negative perceptions, by overlooking such concerns the Committee misses the opportunity to obtain arecognizsesiled picture of the region’s water challenges -and thus address them through its monitoring mecha
Conclusion
The instrumentality of the CESCR monitoring mechanism for keeping States in check regarding the fulfilment of their human rights obligations is greatly supported by the work of civil society groups. By submitting alternative reports to the reviews that the Committee has conducted ever since 1993, civil society provides a clearer account of the real human rights situation on the ground. The study introduced in this blog post pointed to no opposite contention. It even showed that the significance of civil society participation in the reviews conducted on Argentina, Ecuador, and Uruguay concerning the right to water has further expanded. Crucially, alternative reports drew attention to the populations that experience more acute forms of invisibility. This is particularly useful in the midst of our current reality, where socioeconomic inequality and exclusion are on the rise. However, for the Committee to capitalise on such input from civil society groups, it must enhance its efforts to level the playing field for the participation of these actors. The concerns of civil society, which is neither internationally networked nor professionalised, must be equally heard. To counter current asymmetrical structures whereby groups with interlocking identities or contexts of criminalization are disproportionately affected by lack of access to water, the CESCR monitoring mechanism must leave no one behind.
The Human Rights in Context Blog is a platform which provides an academic space for discussion for those interested in human rights, democracy, and the rule of law. We are always interested in well-written and thoughtful comment and analysis on topical events or developments. Scholars from all disciplines, students, researchers, international and national civil servants, legislators and politicians, legal practitioners and judges are welcome to participate in the discussions. We warmly invite those interested in writing a post to send us an e-mail explaining briefly the relevance of the topic and your background as an expert. We will get back to you as quick we can. All contributors post in their individual capacity, and their opinions do not necessarily reflect the official position of Human Rights in Context, or any organisation with which the author is affiliated