by Andrew Rens

When we talk about economic, social and cultural rights we have to deal with the hard fact that realising them takes money. It costs money to build and staff hospitals that make the right to health a reality. It costs money to build and staff schools that make the right to education a reality.

Not only does it cost money, but governments have to make choices. Economic, social and cultural rights are meant to guide those choices. A government should rather build schools than buy submarines, should give college bursaries rather than buy jets for government officials. But because money is limited, even a government that prefers schools to submarines has to make choices. Sometimes those choices are between different rights, between schools and hospitals. More often those choices are about who benefits from the schools and hospitals that are built. There is a limit to the number of people that can be treated in a hospital ward, and a limit to the number of people who can be in a classroom. Because of the scarcity of resources, goods have to be rationed.

This kind of scarcity means that whoever is making decisions about the provision of something must engage in trade-offs. A government has a limited budget. Courts, tribunals and human rights bodies understand that rationing the resources needed to realise rights is the reality for developing countries. Governments have space to make decisions about how scarce resources are used. But the way the scarce resources are used to realise rights mustn’t be discriminatory or unreasonable.

Scarcity seems natural to us; water, food, land, these are all scarce in our world. So when something is not scarce we sometimes struggle to understand it. It is easy to assume that providing something to one person always uses up resources so that they cannot be used to provide something to someone else. But not every resource needed to realise economic, social and cultural rights is like that. Two students cannot use the same paper textbook at the same time (or at least not use it the way that best enables them to learn). But what if there were a textbook which once it was created could be used by an unlimited number of people? What if it could be immediately available for every student who ever needed it? A textbook available online is almost like that limitless textbook. It can be copied at almost zero cost by anyone, anywhere in the world with an internet connection.

And that changes the choices that governments must make. When governments already pay for a resource, as most governments around the world already pay for school textbooks, then the money spent on the textbook can supply it to most people if the textbook is available on the internet for free. The resource required for the right still requires money for its initial creation, but once created it’s available for any number of people. Rationing the resource is no longer necessary.

Many of the resources required to realise economic, social and cultural rights are like digital textbooks; once created they can then be available to anyone who needs or wants them via the internet. For these resources the decisions that government make must change. Should government pay for the resources to be created in the first place? If yes, then what could possibly justify limiting use of the resource after it is created? There are many limitations. Governments allow copyright and technical restrictions on tax-payer funded textbooks. State-funded museums hoard their artworks instead of putting up digitised images for all to use. Universities hoard tax-payer funded knowledge instead of making it freely available. For all of these resources the internet changes everything. When an economic, social or cultural right can be realised or partially realised through provision of resources through the internet then what can justify a refusal?

Of course not everyone in the world has an internet connection. But that is not an argument against making textbooks limitless. It’s an argument for providing internet access to everyone as fast as possible so they can use limitless textbooks.

Read the full paper.

Andrew Rens is a senior lecturer at Duke University and the Research Theme leader for ASKJustice.

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