All Beginnings Are Difficult: The Guiding Principles on Extreme Poverty and Human Rights a Decade After Their Adoption

Abstract

In September 2022, 10 years had passed since the Guiding Principles on Extreme Poverty and Human Rights were adopted by the Human Rights Council. The Guiding Principles, as a soft law human rights instrument, were designed to be a useful tool for states in the formulation and implementation of poverty reduction and eradication policies. In this piece, I examine to what extent this objective has been met. Based on empirical research involving states’ representatives and civil society organizations, and analysis of the documents produced by United Nations bodies that played a key role in developing a human rights-based approach to poverty, I argue that this objective has been met only to a limited extent.

1. INTRODUCTION

Eradication of extreme poverty at the international level has a long-standing history. Within the United Nations (UN) specifically, this issue gained in importance, at least from the end of the Cold War. In a symbolic way it can be seen in the adoption in 1992 by the UN General Assembly of 17 October as International Day for the Eradication of Poverty¹ and in the launching of two consecutive decades for the eradication of poverty.² Through the adoption of numerous declarations, including the Copenhagen Declaration,³ the Millennium Declaration⁴ and the 2030 Agenda, which includes Sustainable Development Goals (SDGs),⁵ the eradication of extreme poverty, embedded in the broader context of global economic development and sustainable development, in an axiological dimension, has become one of the priorities of the international community. In practice, however, these declarations and the various activities accompanying them have not led to the eradication of extreme poverty. In 2021, in various regions of the world, just under 700 million people were still living in extreme poverty as defined by the World Bank. What is more, the COVID-19 pandemic has reversed much of the progress that has been made in poverty reduction after the adoption of the SDGs.⁶

Living in extreme poverty involves not only a failure to meet basic needs, but also human rights violations, as has been evidenced by testimonies given by people experiencing extreme poverty.⁷ Thus, a human rights-based approach to poverty reduction gained in popularity over the years.⁸ The discussion on the role of human rights in addressing poverty eventually led to the creation of a specially tailored human rights instrument within the universal human rights protection system; namely, the Guiding Principles on Extreme Poverty and Human Rights (hereinafter: the Guiding Principles). However, despite the popularity of the human rights-based approach to poverty reduction,⁹ the Guiding Principles have not received wider attention in the legal literature.¹⁰ Nevertheless, 10 years have passed since their adoption, and this provokes the question of whether their objectives have been met and whether or not one could expect any further enhancement in the protection of human rights of people living in extreme poverty within the universal human rights protection system.

In order to answer these questions, first (part II) I analyse the process that led to the adoption of the Guiding Principles, reconstructing the objectives behind them, as well as the expectations that were placed on this legal instrument. Second (in part III), I present the results of an empirical survey conducted with the participation of representatives of different states, for the purposes of this paper, to examine whether the Guiding Principles were applied by them and to what extent. Third, (in parts IV and V) I will assess the extent to which the Guiding Principles provide a reference point for selected UN human rights bodies that play a crucial role in the process of the eradication of poverty. In particular, I focus my attention on the UN Committee on Economic Social and Cultural Rights and the UN Special Rapporteur on Extreme Poverty and Human Rights. The focus on the UN human rights protection system in general, leaving aside an analysis of the application of the Guiding Principles in regional human rights systems, stems from the research hypothesis that a human rights instrument adopted within a particular human rights system is going to play a role within it. Finally, (in part VI), based partly on the results of my empirical study and partly on desk research, I discuss to what extent the Guiding Principles serve as a reference point for NGOs in their advocacy activities. This paper concludes with a response to the research question and remarks regarding the foreseeable future of the Guiding Principles. Because of the formulated research question, I decided to limit to some extent an analysis of the content of the Guiding Principles.

2. THE RATIONALE BEHIND THE GUIDING PRINCIPLES

The axiological foundations of the Guiding Principles can be traced to a more distant past; the adoption of the Universal Declaration of Human Rights and the International Covenants all referred in their preambles to Roosevelt’s idea of freedom from want. However, for the future adoption of the Guiding Principles, the identification of ‘extreme poverty as a distinct human rights problem’ made at the end of the Cold War by the UN Commission on Human Rights for the first time in its history was crucial.¹¹ Shortly thereafter the UN General Assembly also recognized that extreme poverty and exclusion from society constitute a violation of human dignity and urgent national and international measures are therefore required to eliminate them.¹² This recognition served as a base for further work on the relationship between poverty and human rights at the UN level.

In 1990 the UN Commission on Human Rights referred a request to consider the link between poverty and human rights to the work of the Sub-Commission on Prevention of Discrimination and Protection of Minorities.¹³ In pursuing this request, the Commission created the mandate of a Special Rapporteur on extreme poverty and human rights, which it entrusted to Leandro Despouy, who completed his work in 1996.¹⁴ His findings led to the establishment by the UN Commission on Human Rights in 1998 of the mandate of the UN Special Rapporteur on extreme poverty and human rights (at that time under the title of independent expert).¹⁵ The tasks assigned to the Special Rapporteur also included making suggestions on the main points of a draft declaration on human rights and extreme poverty that might be adopted by the General Assembly.¹⁶

In carrying out this task, a number of consultations were carried out,¹⁷ including an international seminar was organized in 2001. This seminar had a key influence on the process that led to the adoption of the Guiding Principles. It gathered representatives of all potentially interested stakeholders, in particular: people living in extreme poverty, NGO activists working with them, academics and representatives of governments. The idea of a declaration was discussed and the conclusion reached was that a document on the guiding nature on the relation between poverty and human rights should be prepared.¹⁸ Furthermore, it was emphasized this potential document should not create additional state obligations, but re-emphasize and reinforce already established state obligations. This is also where the added value of this new document was seen. It was also recognized that this new human rights instrument should not create new monitoring systems, but be applied using existing human rights monitoring and supervision mechanisms. The result of the consultations led to a request made in 2001 by the Commission on Human Rights to the Sub-Commission on the Promotion and Protection of Human Rights to consider the need to develop guiding principles on the implementation of existing human rights norms and standards in the context of the fight against extreme poverty.¹⁹ As a result, an ad hoc group of experts with the task of preparing the draft Guiding Principles on Extreme Poverty and Human Rights (DGPs) was created.²⁰ After the DGPs were finalized in 2006, the Human Rights Council (which replaced the Commission on Human Rights) asked the Office of the High Commissioner for Human Rights (OHCHR) to consult widely on the draft.²¹ A number of comments were collected as a result of this consultation.²² Nevertheless, the key issues, the non-binding nature of the guiding principles and the perception of an added value of this document were not questioned. However, during the first round of consultations NGO representatives recognized a potential weakness in the document in relation to the way in which the future Guiding Principles should be implemented and the lack of means of enforcement.²³

The consensus that emerged among all the stakeholders who participated in the first round of consultations was the basis for the Human Rights Council resolutions on further work on the draft guiding principles, which was entrusted to a Special Rapporteur on extreme poverty and human rights.²⁴ The result of this work was a report summarizing the second round of consultations held by the Special Rapporteur.²⁵

This report makes clear the Guiding Principles are intended to:

(…) provide practical guidance on how to operationalize the obligations of States to respect, protect and fulfil the rights of persons living in extreme poverty, an often neglected and, to a certain extent, invisible segment of the general population. The guiding principles should foster effective implementation and compliance with existing human rights norms and principles. They should also help address the gap between human rights standards and the actual situation of persons in extreme poverty, bearing in mind their diversity worldwide. (…) The principles should guide all actors involved in designing, implementing and monitoring international, national and local policies to eradicate extreme poverty. They should add visibility and political momentum to the fight against extreme poverty, and address the difficulties States and the international community face in reaching those living in extreme poverty. They should also be an advocacy tool for all stakeholders working on poverty issues at the domestic and international level.

Finally, after another round of consultations made by the OHCHR on the above mentioned report,²⁶ and further work and consultations on the draft guiding principles made by the Special Rapporteur on extreme poverty and human rights, Ms. Magdalena Sepúlveda, on 27 September 2012 the Human Rights Council adopted the Guiding Principles on Extreme Poverty and Human Rights, by consensus, in resolution 21/11.²⁷ In the part concerning ‘Objectives’ the Guiding Principles indicate that:

The Guiding Principles are intended as a tool for designing and implementing poverty reduction and eradication policies, and as a guide to how to respect, protect and fulfil the rights of persons living in extreme poverty in all areas of public policy. (…) The Guiding Principles guide the application of human rights obligations in policy decisions at the national and international levels, including decisions concerning international assistance and cooperation. The implementation of the Guiding Principles should thus be seen in the context of States’ existing obligations under international law. (…) The Guiding Principles are global in scope. They should be used by all countries and regions at all stages of economic development, with due regard to national specificities. They are based on a relational and multidimensional view of poverty that recognizes that the empowerment of persons living in poverty should be both a means of realizing the rights of the poor and an end in itself.²⁸

3. THE GUIDING PRINCIPLES AND THEIR CRITICICS

The Guiding Principles, once they had been adopted, were met by publicly expressed criticism from some states. These criticisms are worth outlining here.

The first state worth mentioning is the United States of America. The USA joined the consensus on the Human Rights Council resolution ‘Extreme Poverty and Human Rights’, by which the Guiding Principles on Extreme Poverty and Human Rights were adopted. At the same time, the USA expressed reservations, stating that:

(…) there are interpretations of human rights law within this report with which we disagree. For example, we disagree with the suggestion that there are binding legal obligations on States that have not ratified relevant treaties or that there is a legal duty to provide foreign assistance.²⁹

This position clearly reflects the USA’s attitude towards social rights as well as towards the obligation to provide international assistance and cooperation, best expressed in the lack of ratification by the USA of the International Covenant on Social, Economic and Cultural Rights. Nothing in this regard has changed since 2012, nor has this position towards the Guiding Principles changed, and it is recalled from time to time.³⁰ In this context it is worthwhile underlining what was constantly emphasized in discussion preceding the adoption of the Guiding Principles, and by Guiding Principles themselves, that this non-legally binding instrument does not create new obligations in the area of human rights law. The Guiding Principles in the chapter where international assistance and cooperation are discussed derive that obligation primarily from Articles 55 and 56 of the Charter of the United Nations. Thus, the reasons for this criticism cannot be considered convincing.

Regardless of the criticism of the USA one cannot fail to notice that the Guiding Principles placed great emphasis on economic and social rights. This is evident both in the catalogue of rights in Chapter Five, in which social rights predominate, and in Chapter Four on the implementation of the Guiding Principles, where the emphasis on the obligation to take steps towards the full realization of economic, social and cultural rights was made. Focus on rights (as an aside note, the Guiding Principles do not refer in the catalogue of rights to freedoms), most specifically social rights, was justified; the enjoyment of these rights by persons living in poverty is particularly limited and obstructed, and in relation to this State policies are often inadequate or counterproductive.³¹ While this reasoning for the selection of a certain set of rights might be considered convincing, it cannot be ignored that, as a consequence, a whole series of legal norms shaping the legal status of the people living in extreme poverty related to civil and political rights and freedoms have been overlooked. At the same time, these are rights on the grounds of which the jurisprudence of national and international human rights institutions has developed extremely rapidly in recent years.³²

The Guiding Principles were also publicly criticized by a group of 15 countries that included the Russian Federation and China.³³ In the few days before the Human Rights Council adopted the Guiding Principles, on 12 September 2012, the ‘Joint Statement on behalf of the Like-Minded-Countries (LMC) on the draft guiding principle on Extreme Poverty and Human Rights’ was published.³⁴ While the United States criticized the inclusion in the Guiding Principles of the issue of international assistance, these countries criticized the inadequate coverage of this issue in the context of the structural (international) causes of poverty. To illustrate this criticism, I point to certain passages from this statement:

‘While the international organizations have been encouraged by the Special Rapporteur through these guidelines to support the States in their efforts for implementation of these guiding principles, more needs to be done on their part. The international organizations need to be more proactive in assessing how their work is actually contributing to reducing extreme poverty. (…)

Although there are concrete recommendations proposed for actions by states for fulfilling specific rights, there is a need for pointing out specific and concrete steps to be taken for fulfillment of obligations of international assistance and cooperation. Similarly the role of non-state actors, including business enterprises needs to be further spelled out through action points. (…)

However, just formulating guidelines will not be enough. It would require a strong political will and a multi-pronged and multi-dimensional approach at all levels to make extreme poverty part of history. We need to find solutions to generate enough resources to bring relief to those in need’.

This argument will be addressed in the conclusion to this paper. Regardless, we cannot ignore that three of the five permanent members of the UN Security Council have publicly criticized the Guiding Principles. The only permanent member of the Security Council, which moreover played a key role in the adoption of the Guiding Principles, to publicly express support for them is France.³⁵

4. THE IMPLEMENTATION OF THE GUIDING PRINCIPLES BY SELECTED STATES

The Guiding Principles were noted with appreciation by the UN General Assembly in December 2012, which in its resolution Human Rights and Extreme Poverty described the Guidelines as ‘an appropriate and useful instrument for states to prepare and implement programmes to reduce and eradicate poverty’. The General Assembly also:

encourages Governments, relevant United Nations bodies, funds, programmes and specialized agencies, other intergovernmental organizations and national human rights institutions as well as non-governmental organizations and non-State actors, including the private sector, to consider the guiding principles in the formulation and implementation of their policies and measures concerning persons affected by extreme poverty.³⁶

From that time onwards this precise encouragement was repeated in each subsequent General Assembly resolution devoted to human rights and extreme poverty.³⁷ At the same time, it is impossible to discern in this series of resolutions any announcement of further development of human rights standards in this field. Therefore, it is evident that the Guiding Principles represent—at least for the time being—the culmination of a process of development of instruments of international law relating to extreme poverty and human rights.

Trying to determine to what extent the Guiding Principles were implemented by states, I conducted, between December 2021 and March 2022, an empirical study in order to discover whether their objective has been met. In the first stage of this study I sent (via email) a questionnaire to all States’ Permanent Missions to the United Nations Office at Geneva with a list of questions related to the implementation of the Guiding Principles. Choosing the Permanent Missions as the recipients of my questionnaire instead of addressing directly the relevant national institutions was justified for three reasons. First and foremost, I wanted my survey to reach the widest possible range of countries. Addressing the Permanent Missions, whose contacts have been gathered in one place³⁸, made it possible to achieve this goal, as opposed to searching for the responsible state institution within a given state, which, taking into account the different degree of informatization among states and language considerations (not all websites are available in foreign languages) would not have made it possible to reach such a wide range of respondents. Second, I assumed that the Missions, after receiving the questionnaire, would approach the relevant institutions, often not one, in their home states in order to obtain the information I was requesting. Third, and finally, I assumed that the Permanent Mission staff, as representing the governments at the UN, would have come across the Guiding Principals in reports prepared by those countries for various UN reporting procedures, which they later presented at the UN.

The form I sent contained the following questions and requests:

1. Since their adoption in 2012, have the Guiding Principles on Extreme Poverty and Human Rights ever been used in the formulation and implementation of poverty reduction and eradication policies or strategies by asked state?

2. If the answer to the first question is positive, could the state provide more detail of the way in which and to what extent they have been used?

3. Has asked state adopted a national strategy and/or a plan of action to eliminate poverty?

4. Have the Guiding Principles on Extreme Poverty and Human Rights ever been referred to during parliamentary law-making proceedings?

5. If the answer to the fourth question is positive, I asked state to provide more detail of the way in which and to what extent this has been the case.

6. Have the Guiding Principles on Extreme Poverty and Human Rights ever been referred to in domestic court jurisprudence?

7. If the answer to the sixth question is positive, I asked state to provide more detail of the way in which and to what extent this occurred.

Although the first question is quite obvious, it is worth providing a short explanation for the other three (questions 3, 4 and 6). The content of the third question corresponds directly to the main measure of implementation of the Guiding Principles, which was (par. 104) the adoption and implementation of a comprehensive national strategy and plan of action to eliminate poverty, framed in human rights terms. The other two questions were raised based on the assumption that judicial proceedings and parliamentary law-making proceedings are key to the implementation of human rights. Therefore, the Guiding Principles should probably be raised there.

Answers, only exceptionally to all questions, were submitted by 15 countries (in alphabetical order): Andorra, Austria, Belgium, Bulgaria, Costa Rica, Cyprus, Germany, Haiti, Liechtenstein, Mali, Mexico, Norway, Poland, Philippines and Saudi Arabia. For the most part (with only a few exceptions), these answers involved consultations with the relevant national institutions, or the answers were provided directly by those institutions to which the Missions redirected my inquiry. Although this number of responses may seem small, it generally corresponds to the responsiveness of states during the consultation process of the Guiding Principles themselves, and to the number of countries that usually respond to questionnaires sent out by the OHCHR and the Special Rapporteurs.³⁹ Some of these countries—namely: Austria, Belgium, Costa Rica, Haiti, Mexico and Philippines—took an active part in the work that led to the adoption of the Guiding Principles, demonstrated by their representatives’ participation in consultations on the Guiding Principles or by co-sponsoring resolutions on human rights and extreme poverty. The limited number of responses does not allow me to make categorical statements about the extent to which the Guiding Principles were applied. Nevertheless, on the basis of these answers it is possible to formulate some hypotheses.

In general, based on submitted reports, states can be categorized into two groups, depending on whether or not they apply the Guiding Principles domestically in their poverty reduction policies. Within the group of states that reported that the Guiding Principles are applied domestically, three approaches can be identified, depending on the intensity of application of the Guiding Principles. This classification will be discussed first.

In the first approach, represented by Mexico and Costa Rica, the Guiding Principles play an important role in the formulation of anti-poverty policies. These two countries applied a human rights-based approach to poverty referring to the Guiding Principles, as evidenced by the adopted policy documents. Of these two, the case of Mexico is particularly interesting. The federal administration established in the National Development Plan for 2019–2024, which focusses on people living in poverty, which is well reflected in the accompanying slogan: ‘For the good of all, first the poor’ and ‘Leave no one behind, leave no one out’.⁴⁰ A human rights-based approach to poverty reduction is also evident in other policy documents, such as: the National Human Rights Program 2020–2024,⁴¹ the Sectoral Welfare Program 2020–2024⁴² as well as National Strategy for the implementation of the 2030 Agenda in Mexico.⁴³ Mexico also established an independent national body—the National Council for the Evaluation of Social Development Policy (CONEVAL)—in charge of monitoring the quantitative and qualitative aspects of poverty from a human rights perspective, and with providing the disaggregated data sets, respecting confidentiality and privacy, which corresponds with the Guiding Principles guidelines.⁴⁴ Mexico was also the only country that was able to point to specific references to the Guiding Principles made in the course of parliamentary work⁴⁵ and in judicial decisions.⁴⁶

In the second approach, countries have indicated that they are aware of the Guiding Principles and take them into account when formulating policies to address poverty, but they do not refer to them explicitly in documents. This is the case of Andorra, Cyprus, Mali and the Philippines. In the third approach, the Guiding Principles were also taken into account and used by states but to a limited extent, namely in foreign and development policy only. This was the case of the Federal Republic of Germany where the Guiding Principles have been used in the context of the creation of a development strategy, in drafting internal working aids and factsheets, as well as in the context of training.⁴⁷

As I have mentioned, there is a group of states that has never used the Guiding Principles in the formulation and implementation of poverty reduction and eradication policies or strategies. This is the case of Austria, Belgium, Bulgaria, Haiti, Liechtenstein, Norway, Poland and Saudi Arabia. At the same time, all of these states indicated either that they had pushed forward social policies or that they had plans and strategies in place to provide for the eradication of poverty. Interestingly, in the context of countries that are members of the European Union (EU), their adoption of anti-poverty strategies has generally been driven by the need to meet their obligations as members of the EU.⁴⁸ Also, because of the EU’s European Child Guarantee Initiative⁴⁹, child poverty plans are currently being developed.

Although in reports from this group of states there was no explicit explanation for not applying the Guiding Principles, one conclusion can be drawn from the responses. This is low awareness about the content and importance of the Guiding Principles among states, especially in relation to other non-binding norms and standards. Most of these states, in terms of poverty reduction, made reference to the 2030 Agenda on Sustainable Development rather than to the Guiding Principles. Some states indicated, among other things, achievement of target 1.1 of the SDG 1, explaining there was no need to apply the Guiding Principles as in their opinion extreme poverty does not exist in their countries.

The issue of defining extreme poverty requires comment here. The Guiding Principles deliberately do not refer to the World Bank indicators used for the measurement of extreme poverty, especially the poverty line of 1.9$ per day, but define poverty in a broader scale, as: ‘poverty is not solely an economic issue, but rather a multidimensional phenomenon that encompasses a lack of both income and the basic capabilities to live in dignity’. Based on responses from states, it is possible to raise a hypothesis of insufficient understanding of the nature of extreme poverty among states. The countries that were not using the Guiding Principles at all, or limit its application to development policy, seem to accept this World Bank definition of poverty.⁵⁰ At the same time, extreme poverty as defined by the Guiding Principles is also present in these countries. The scale of homelessness in EU countries is particular evidence of this. In the EU there are 4 million homeless European citizens,⁵¹ and there is an upward trend in the number of people experiencing homelessness.⁵² To increase the effectiveness of counteracting homelessness at the EU level, with the involvement of EU states (including those who responded to this questionnaire indicating the absence of extreme poverty in their states) the European Platform On Combatting Homelessness was created.⁵³

5. THE IMPLEMENTATION OF THE GUIDING PRINCIPLES BY THE COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

In the aforementioned series of resolutions on extreme poverty and human rights the UN General Assembly encourages not only Governments to consider the Guiding Principles but also different actors in the human rights field, among others the relevant United Nations bodies. In among the different UN bodies, funds, programmes and specialized agencies one can easily find those that play a crucial role in the field of poverty and human rights, namely: the Committee on Economic, Social and Cultural Rights (CESCR) and the UN Special Rapporteur on extreme poverty and human rights (as one of the Special Procedures of the Human Rights Council). Interestingly, after the Guiding Principles were adopted, a meeting took place between the CESCR and the UN Special Rapporteur on Extreme Poverty and Human Rights. At that meeting, the Special Rapporteur encouraged CESCR members to refer to the Guiding Principles in future discussions with State parties.⁵⁴

Therefore, it is reasonable to expect that the Guiding Principles will be frequently used in the practice of these two bodies, especially within the framework of their dialogue with countries that are the primary addressees of the Guiding Principles. To assess whether this is the case, I have analysed key documents developed by these bodies in the conclusion of their dialogue with states. Engaging in such an analysis can also be justified by the responses from Haiti, which I received as a response to my survey described above, where it was clearly pointed out that the Guiding Principles had never been raised by UN bodies in their dialogue with this state. This provokes the question of whether this situation is a regular practice or an exception.

In relation to CESCR, I decided to analyse the concluding observations adopted by the CESCR in the framework of reporting cycles related to compliance by states with obligations under the Covenant on Economic Social and Cultural Rights. I have analysed 124 concluding observations adopted by the CESR from the time of the adoption of the Guiding Principles to the end of 2021.⁵⁵ References to poverty, or extreme poverty, were made in virtually every concluding observation analysed except for seven cases.⁵⁶ Surprisingly, however, the CESCR did not make a single reference to the Guiding Principles in any of the analysed concluding observations. One could try to explain this approach by the fact that the CESCR do not invoke in concluding observations this type of legal act, of the guiding nature. However, this is not the case, since at the same time, in analysed concluding observations, the Committee made references to plenty of documents of a similar nature. The most frequently referred to by the Committee are: The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, adopted by the Council of the Food and Agriculture Organization of the United Nations in 2004;⁵⁷ technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity (A/HRC/21/22);⁵⁸ and the Basic Principles and Guidelines on Development-based Evictions and Displacement (A/HRC/4/18), prepared by the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living.⁵⁹

At the same time, the CESCR recognized the importance of a human rights-based approach to poverty. In the analysed concluding observations the CESCR repeatedly (69 times out of 124) draws states’ attention to its statement: ‘Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: Poverty and the International Covenant on Economic, Social and Cultural Rights’, adopted on 4 May 2001. This position itself was intended similarly to the Guiding Principles to: ‘encourage the integration of human rights into poverty eradication policies by outlining how human rights generally, and the Covenant in particular, can empower the poor and enhance anti-poverty strategies’.⁶⁰ That position, however, does not fully correspond to the content of the Guiding Principles, in particular it does not distinguish between poverty and extreme poverty, which was recognized by the Guiding Principles.⁶¹ Moreover, this position refers only to the obligations of states under the Covenant, while the Guiding Principles are a kind of guide to the entire range of UN human rights instruments, including the Covenant itself. Perhaps this broader range of rights contained in the Guiding Principles, which go beyond those guaranteed by the Covenant, was the reason why the CESCR decided not to invoke the Guiding Principles. If this was indeed the argument, one could argue against it. First by pointing out that, in the context of the catalogue of rights contained in the Guiding Principles, most attention has been attributed to social and economic rights. Second, that the Guiding Principles capture indivisibility, interdependence and interrelation between human rights, the assumption on which the modern understanding of human rights is based. Therefore, it is impossible to establish a water-tight division separating different categories of rights, as the European Court of Human Rights once rightly noted.⁶²

One may therefore assume that a lack of reference to the Guiding Principles could be explained by the fact that the CESCR may not refer to this kind of legal act when, at the same time, the Committee has developed its own positions, or general comments concerning the same issue. However, this is also not the case. Indeed, the Committee often invokes just this type of document alongside its positions, or general comments, what is best evidenced in the above-mentioned most frequently cited Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security, which were referred to in addition to the CESCR General Comment No. 12 (1999) on the right to adequate food.

As the above analysis shows, the Committee did not follow the call of the UN Special Rapporteur on extreme poverty and human rights to refer to the Guiding Principles at least within the procedure for examining reports of states-parties to the International Covenant on Economic, Social and Cultural Rights. However, it should be noted that the CESCR made references to the Guiding Principles in one of its general comments and in one of its statements.⁶³

6. THE IMPLEMENTATION OF THE GUIDING PRINCIPLES BY THE UN SPECIAL RAPPORTEUR ON EXTREME POVERTY AND HUMAN RIGHTS

Turning to the UN Special Rapporteur on extreme poverty and human rights, and bearing in mind its crucial role played in the adoption of the Guiding Principles, one may expect that this legal instrument for the protection of the poorest people would serve as the primary reference point for the Special Rapporteur’s work. To verify this hypothesis, I traced the results of two main activities undertaken by the Special Rapporteur, which seems to have the potential to protect the rights of extremely poor individuals. The first is country visits, in the framework of which the Special Rapporteur can visit different states to examine the progress and obstacles to the enjoyment of human rights by those living in extreme poverty. The findings of the Special Rapporteur, together with recommendations, are published after each visit. The reports serve as a tool for the dialogue that the Special Rapporteur conducts with states. The second is annual thematic reports prepared by the Special Rapporteur. These reports, whose primary purpose is not to dialogue with individual states but to set or reframe standards for particular legal issues related to extreme poverty, are often energetically discussed and constitute an advocacy tool for civil society. They could therefore serve as an important platform for promoting the Guiding Principles.

In regards to the reports from country visits that took place after the adoption of the Guiding Principles, surprisingly the Special Rapporteur makes no reference to the Guiding Principles.⁶⁴ At the same time, in those reports references were made to other instruments of a guiding nature, such as: the Guiding Principles on Internal Displacement⁶⁵ or United Nations Guidelines for the Prevention of Juvenile Delinquency.⁶⁶ In regards to the annual reports the situation is slightly different. Out of 19 thematic reports prepared by the Special Rapporteur on extreme poverty and human rights, after the Guiding Principles were adopted, references to the Guiding Principles can be found in 6 of them.⁶⁷ In none of these reports are the Guiding Principles the main point of reference.

This general lack of reference to the Guiding Principles made in the outcomes of these two types of Special Rapporteur activities is hard to understand, given also the role that mandate has to play in promoting the Guiding Principles. Although the main role in dissemination of the Guiding Principles was attributed by the General Assembly to the Office of the United Nations High Commissioner for Human Rights, the Human Rights Council, in the resolution shaping the mandate of the Special Rapporteur in 2014, also requested the Special Rapporteur to ‘promote the effective and comprehensive dissemination and implementation of the guiding principles on extreme poverty and human rights.’⁶⁸ This call was not repeated in subsequent 2017 and 2020 resolutions that form this mandate⁶⁹.

In this regard, it is impossible to disregard the internal contradiction in the 2017 and 2020 resolutions. The Human Rights Council emphasized here that poverty alleviation and eventual eradication must remain a high priority for the international community, and that efforts towards the achievement of this goal should be strengthened. Yet, despite recalling the existence of the Guiding Principles, tasks related to the Guiding Principles (which are the tool within the UN system for achieving this goal) were not included in the Special Rapporteur’s mandate. It is difficult to explain this contradiction. Since the Guiding Principles, as a soft law instrument, do not contain any specific implementation and monitoring mechanism, the Special Rapporteur should be equipped with competences not only in the field of dissemination and promotion of the Guiding Principles, but also in identification, exchange and promotion of the good practices and lessons learned on the implementation of the Guiding Principles. The consequence of the current deficiency is a situation in which the Guiding Principles de iure are not formally the object of special interest by any UN institution or body. It is worth mentioning here that, with regard to a similar instrument—the Guiding Principles on Business and Human Rights—the Human Rights Council has established a Working Group with the mandate to promote, disseminate and implement the Guiding Principles on Business and Human Rights. The group is also mandated to exchange and promote good practices and lessons learned on the implementation of the Guiding Principles, and to assess and make recommendations thereon.⁷⁰

Despite the Human Rights Council’s failure to include the promotion and dissemination of the Guiding Principles in the resolutions that form the mandate of the Special Rapporteur, in order to make this instrument a point of reference for the countries in the field of poverty eradication policies these should be a permanent element of the activities of the Special Rapporteur.

However, it is difficult to make a general assessment of the Special Rapporteur’s role in promotion of the Guiding Principles bearing in mind that this mandate is exercised in a largely informal way and that it was fulfilled by different people. In the first period, after the adoption of the Guiding Principles until 2014, the role was fulfilled by Mrs. Magdalena Sepúlveda Carmona.⁷¹ From the report summarizing her tenure, one can conclude that the Guiding Principles, in the finalization of which she played a key role, were promoted by her on many occasions both during formal and informal meetings. No such report summarizing activities as Special Rapporteur was produced by Professor Philip Alston, her successor in that position in the years 2014–2020. For obvious reasons, such a report has also not been prepared by the current mandate holder, Professor Olivier de Schutter, who has held that position since 2020. Therefore, I contacted the previous and current mandate holders asking them for their work on promoting the Guiding Principles. Prof. Alston confirmed that he almost never invoked the Guiding Principles in his work in this capacity. Prof. de Schutter took the opposite approach, declaring that he started to systematically refer to the Guiding Principles in his work (in allegation letters, communications, as well as in country and thematic reports). He expressed opinion that this kind of human rights instruments: ‘only have an impact if they are systematically referred to and, through repetition and frequent citation, become part of the corpus of norms that States feel obliged to take into consideration’. Based on this, therefore, a revival of the Guiding Principles can be expected in the future.

To conclude, two key actors in the United Nations system responsible for the human rights-based approach to poverty reduction have responded negligibly to the UN General Assembly request to consider the Guiding Principles in the formulation and implementation of their policies and measures concerning persons affected by extreme poverty. Without greater involvement of these two UN bodies (broadly speaking as UN Special Rapporteur on extreme poverty and human rights operates as a special procedure of Human Rights Council), further promotion and eventual success of the Guiding Principles may be extremely difficult.⁷²

7. THE IMPLEMENTATION OF THE GUIDING PRINCIPLES BY NGOS

Civil society organizations, led by the International Movement ATD Fourth World (hereinafter: ATD), played an important role during the development of the Guiding Principles, which is visible in the materials documenting work towards the adoption of the Guiding Principles. In fact it is possible to argue that the leader and founder of ATD, Father Joseph Wrzesiński, was one of the leading advocates of the human rights-based approach to poverty at the UN level.⁷³ It is important here to underline that, thanks to the involvement of non-governmental organizations, the people who live in poverty were heard during the work on the Guiding Principles.⁷⁴

As it was stated in the report of the Special Rapporteur on extreme poverty and human rights from the second round of consultations on the Guiding Principles, in addition to being a tool for states in poverty eradication policies, they should also play the role of a tool for advocacy in that field conducted by NGOs. To facilitate such activity a handbook for the implementation of the Guiding Principles was prepared by two NGOs: ATD and Franciscans International, with input from a wide range of other NGOs.⁷⁵ The official launch of the handbook took place at the Palais des Nations in Geneva on 18 September 2015 and was co-sponsored by the missions of Belgium, Ecuador, France and Italy. It is also worth mentioning a similar action taken by another NGO, The European Anti-Poverty Network, which produced a Handbook on a Human Rights-Based Approach to Poverty.⁷⁶ Interestingly, the Guiding Principles in this handbook are not identified as an essential tool for defining a rights-based approach to poverty, but merely one of numerous reference points⁷⁷ for that approach.

The question about whether and to what extent the Guiding Principles actually fulfil this role at the national and international level cannot be answered easily because of the scale of NGO activities and the different intensity both on a domestic and international level. However, in order to get even a limited picture I sent inquiries to almost 50 NGOs, trying to establish whether, since the adoption of the Guiding Principles, this tool has ever been used in their advocacy (both at a domestic and/or international level) for poverty reduction. Inquiries were sent to NGOs in which the mandate is working to eradicate poverty or homelessness. Mainly, these were NGOs involved at different stages of the work on preparation of the Guiding Principles as well as those that endorsed the above-mentioned handbook. I received only eight responses. The extent to which the Guiding Principles were invoked by NGOs that responded to my inquiries, as with states, varies. Three approaches can be identified.

In the first approach, the Guiding Principles either play no role or were invoked incidentally. This approach is represented by the Borgen Project, the International Dalit Solidarity Network and by FEANTSA (the European Federation of National Organisations Working with the Homeless). In the second approach, represented by Volontari nel mondo (FOCSIV), Concern Worldwide and the International Catholic Child Bureau (BICE), although the Guiding Principles were not invoked explicitly in advocacy, they were used for reconstruction of the human rights-based approach to poverty reduction, which is the approach these organizations refer to. Interestingly, the latter two organizations, as well as FEANTSA, have indicated that in their dialogue with countries instead of making systematic reference to the Guiding Principles they refer to the SDG. Finally, the last approach in which the Guidelines are referred to explicitly is represented by the NGO Committee for Social Development and ATD. The approach presented by ATD seems to be the most comprehensive and for that reason it is worth devoting a little more attention to it.

ATD conducts extensive international advocacy activities with reference to the Guiding Principles in different international fora, including the Council of Europe and the United Nations.⁷⁸ Not surprisingly, the Guiding Principles are invoked particularly frequently at the UN where ATD has identified a number of different channels of international advocacy activities. In addition to their statements sent to the Human Rights Council and the Economic and Social Council, which will be mentioned below, ATD also made references to the Guiding Principles in responses to questionnaires circulated by the UN Special Rapporteurs, the OHCHR as well as by the Human Rights Committee. Importantly, references to the GPs were not limited to official positions or statements of ATD but were made on the occasion of participation in informal negotiations on Human Rights Council resolutions related to extreme poverty and human rights, of participation in or organization of side events that were held during Human Rights Council sessions, as well as during meetings with representatives of the OHCHR.

ATD was involved in extensive promotion of its handbook, and therefore also the Guiding Principles. In addition to the aforementioned launch at the UN the handbook was relaunched at the Vatican, in the presence of some 50 NGOs, religious organizations and the press.⁷⁹ Training sessions on the Guiding Principles and the handbook were also made in Haiti, Ireland, Mauritius, the Philippines and Senegal. Because of the structure of ATD, which mainly operates at the national level in nearly 30 countries around the world, the Guiding Principles provided it with a reference point for advocacy activities conducted locally, individually⁸⁰ and in coalition with other organizations.⁸¹ Among various forms of advocacy activities it is worth mentioning the development, with reference to the Guiding Principles, of the concept of a local ombudsman for social rights by the Polish branch of ATD. By design (as this concept has not yet been implemented) this institution could provide support for the proper functioning of social assistance and protect the rights of the poorest people on the local level.⁸²

Leaving aside ATD and the NGO Committee for Social Development, and bearing in mind the low number of responses to my inquiries, one may come to the conclusion that the Guiding Principles are of low practical relevance in NGO activities in general. Such a hypothesis is, however, incorrect. This can be proven, e.g. by search on the internet⁸³ as well as by the result of an analysis of the UN documents database⁸⁴ where one can also find several NGO positions with references to the Guiding Principles made in the course of their advocacy at the UN level. This analysis leads to the conclusion that the Guiding Principles at the UN level were raised by NGOs mainly in the context of discussions on the UN Development Agenda. Several NGO statements were submitted to the Economic and Social Council as a follow-up to the World Summit for Social Development and the 24th special session of the General Assembly. The importance of the Guiding Principles was particularly emphasized by the above-mentioned ATD,⁸⁵ but they were also included in the statements submitted by the Congregation of Our Lady of Charity of the Good Shepherd,⁸⁶ the International Council on Social Welfare,⁸⁷ Citizens United for Rehabilitation of Errants,⁸⁸ Marangopoulos Foundation for Human Rights⁸⁹ and the International Federation for Home Economics.⁹⁰ In this framework there was also one joint statement submitted by Franciscans International, ATD, Passionists International and VIVAT International.⁹¹ The Guiding Principles were also referred to in a follow-up of the 4th World Conference on Women and the 23rd special session of the General Assembly, entitled ‘Women 2000: gender equality, development and peace for the 21st century’ by the International Presentation Association of the Sisters of the Presentation of the Blessed Virgin Mary⁹² as well as by the Sisters of the Good Shepherd.⁹³

The Guiding Principles have also been referred to in various contexts before the Human Rights Council by: Asylum Access,⁹⁴ the International Association of Schools of Social Work⁹⁵ and the Associazione Comunita Papa Giovanni XXIII.⁹⁶ Particularly noteworthy here is the joint position sent by 12 NGOs regarding the right to participate in the conduct of public affairs as a means to address extreme poverty.⁹⁷

To conclude, based on answers received and on the basis of the analysis of the UN database it could be said that at least at the UN level the Guiding Principles are an important advocacy instrument for the activities of NGOs.

8. CONCLUDING REMARKS

The unanimous adoption of the Guiding Principles by the Human Rights Council and their subsequent unanimous endorsement by the UN General Assembly ended the debate in the universal human rights protection system of whether extreme poverty per se violates human rights. The Guiding Principles, apart from naming and shaming poverty as a human rights violation⁹⁸, had a clear purpose. This goal was to create a tool to help states to address extreme poverty on a human rights basis. As the materials from the work on the Guiding Principles indicate, there were high hopes embodied in this tool. However, in the decade after adoption, the reality turned out to be different from what was expected. The analysis of the application of the Guiding Principles carried out in this piece clearly shows that expectations have not yet been fully realized. Although the Guiding Principles are to some extent a reference point for states, UN bodies and NGOs, the scope and extent of their application are, thus far, limited.

Clearly, there is no single explanation for this. Looking for some clarification, however, there are at least four such reasons. First, from a broader perspective, it is impossible not to notice a general trend in the human rights backlash.⁹⁹ The undermining of existing basic human rights standards by a number of states worldwide is not conducive to applying a human rights-based approach to extreme poverty eradication, or to tackling other social problems more broadly. Second, the importance of human rights as a tool for poverty reduction, and therefore the Guiding Principles also, are downplayed by some states. This could already be seen in the positions published by selected countries, including China and Russia, shortly before the adoption of the Guiding Principles. Although this approach, which prioritizes the importance of economic development to address poverty while marginalizing the importance of human rights, was rightly criticized by the Special Rapporteur in the report summarizing his visit to China,¹⁰⁰ the same approach is quite popular among developing countries.¹⁰¹

Third, the Guiding Principles may be perceived by some states and other human rights actors as an ineffective tool that can be used in eradication of extreme poverty. This perception may serve as another explanation of the restraint in applying the Guiding Principles by the CESCR and certainly must have been an explanation of the Special Rapporteur on extreme poverty and human rights policy of not referring Guiding Principles to a greater extent in the period of 2014–2020. Fourth, the lack of adequate promotion of the Guiding Principles can also be identified among reasons that explain why the Guiding Principles have so far failed to live up to expectations. In addition to the characterized restraint in this regard represented by the CESCR and the Special Rapporteur on extreme poverty and human rights, one cannot fail to notice that, despite the General Assembly’s imposition of the duty to promote the Guiding Principles on the Office of the United Nations High Commissioner for Human Rights, activities in this regard are virtually non-existent. For the purposes of this research, I contacted OHCHR and received confirmation that the Guiding Principles were not promoted to wider scale. This approach is difficult to understand taking into account key role that OHCHR played in drafting of Guiding Principles which consist of i.a. organization of a technical review as well as consultations with Human Right Council members, experts and NGOs.

Undoubtedly, without proper and large scale promotion, the Guiding Principles will not achieve their goals and will fall into oblivion. Adequate action in this area could dispel potential doubts about the Guiding Principles. It is impossible not to notice that, on the UN level, much more emphasis has been placed on promotion of the SDGs. This was confirmed by the results of my research, in which some of the countries and NGOs that responded to my survey pointed to the SDGs as a reference point, not the Guiding Principles. Again, it is difficult to understand why, during the process of promotion on the development agenda, the opportunity by UN bodies has not been taken so far to demonstrate the close link between social development and human rights in poverty reduction. The promotion of the development agenda should not preclude the other, as seems to be the case currently, in particular as the SDGs are rightly criticized¹⁰² for not fully taking into account the requirements stemming from human rights, in particular the principles of accountability, non-discrimination and empowerment. It is possible to see the added value of the Guiding Principles over the SDGs in the latter two principles, to which the Guiding Principles devote special attention.

Looking at the Guiding Principles in the perspective of similar human rights instruments, it is hard to avoid comparing their development with another document of this type adopted just one year earlier, namely: ‘the Guiding Principles on Business and Human Rights: Implementing the United Nations “Protect, Respect and Remedy” Framework.’¹⁰³ This soft law instrument devoted to another pressing human rights issue, following its positive reception by the international community, became the starting point for the ongoing work on a legally binding international human rights agreement.¹⁰⁴ The prospect of a binding treaty on the eradication of extreme poverty, although highly desirable, is unimaginable at the present stage.¹⁰⁵ In order to increase the possibility that someday work on such a treaty will be undertaken, a significant amount of work needs to be done. It seems crucial to put an emphasis on the promotion of the Guiding Principles, both among states and civil society organizations. The Guiding Principles operationalize a human rights-based approach to poverty reduction. Without the success of the Guiding Principles it is difficult to think of the adoption of an international convention within a universal human rights system.

Regardless, if such a treaty were to be adopted I argue that it should take the form of the Convention on the Elimination of All Forms of Discrimination on the Basis of Socio-Economic Status.¹⁰⁶ Framing this treaty in the anti-discrimination manner could be justified by at least three arguments. First, because this method of regulation clearly distinguishes a potential new treaty from the Guiding Principles. Since the latter are based on already existing international human rights law norms (emphasized in the Guiding Principles) an argument could be raised against the adoption of such a treaty because there would be no need for it. Second, and more importantly, discrimination and exclusion are among the major causes and consequences of poverty, which is stated in the Guiding Principles themselves¹⁰⁷ and which justifies devoting special attention to this issue. Third, this form represents a link to other, well-established UN treaties dealing with the rights of discriminated groups (women¹⁰⁸ and racial minorities¹⁰⁹), which can make the process of drafting the new convention slightly easier, dependent as it is on a scheme that is already understood.

Nevertheless, it is worth noting that the example of the UN Guiding Principles on Business and Human Rights, where the road towards a binding treaty has already begun, is a quite specific case. This uniqueness can be seen in relation to a number of other similar guiding principles that have been adopted at the UN level over the past years (reference has already been made to some). These are related to i.a. the guiding principles that concern the right to food¹¹⁰, internal displacement¹¹¹, prevention of juvenile delinquency¹¹² and the right to remedy and reparations of victims of violations of human rights and humanitarian law¹¹³. As in the case of the Guiding Principles analysed here, their common denominator was that they did not create new legal obligations on the part of states, but adapted existing human rights norms (but not only) to a given issue. Despite the fact that the adoption of all of these guiding principles did not lead to the subsequent adoption of the new sets of international human rights conventions to date, does not deprive them of their moral and legal significance as soft law human rights instruments.¹¹⁴ All of these guiding principles provide detailed recommendations relating to issues that are not fully covered by binding treaties. They often represent a gathering of ‘collective wisdom’, thanks to the inclusive manner in which they were developed, with the participation of key stakeholders and not only experts and states’ representatives. This aspect was particularly noticeable in the context of the Guiding Principles on Extreme Poverty and Human Rights. Thus, all of the guiding principles constitute an inspiration both for the UN and for regional and national human rights institutions, affecting the manner in which the binding human rights norms are understood and thus contributing to strengthening their protection. Because of their non-binding nature, guiding principles are formulated in a way that makes them more accessible, including for people without legal training. As a result, they also become a source of inspiration for advocacy conducted in fields to which concrete guiding principles relate.¹¹⁵

To conclude, as I indicated in the introduction to this paper, eradication of extreme poverty has been covered by international consensus since at least the Copenhagen Declaration. At the same time, as Prof. Philip Alston rightly pointed out in his last report submitted in his capacity as Special Rapporteur on Extreme Poverty and Human Rights, the persistence of poverty is a political choice.¹¹⁶ Human rights can be a game changer here, as they can lead to a reinforcement (or change) of certain strategies that were used to eradicate poverty. The answer to the question of how to implement a human rights-based approach is provided by the Guiding Principles. All you have to do is reach for them.

ACKNOWLEDGMENTS

This paper was written during a Max Weber Fellowship at the European University Institute (EUI) in Florence. The Author would like to express his gratitude to Ms. Janet Nelson Arazi and Mr. Sébastien Gotti both from International Movement ATD Fourth World for their assistance provided during the course of the research and to Prof. Gabor Halmai and Alyson Price, both from the European University Institute, for their very helpful comments on the manuscript. The Author also would like to acknowledge anonymous reviewers for their careful reading of this paper and their many insightful comments and suggestions.

Footnotes

Author notes