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ESC Rights Update from Geneva: 25th of the UN Human Rights Council, Spring 2014
Spring 2014
Economic, social and cultural (ESC) rights were well represented at the 25th session of the Human Rights Council in March. There were at least 5 resolutions directly dealing with ESC rights, on: economic, social and cultural rights; food; housing; cultural rights, and environment. Experts in relation to three of those rights also reported to the Council during this session, namely the: Special Rapporteur on adequate housing as a component of the right to an adequate standard of living; Special Rapporteur on the right to food; and Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment .[1] Whilst the Council was scheduled to appoint new mandate holders for the Special Rapporteurs on Adequate Housing and Food (and others), the appointments were postponed pending further negotiations amongst States. It is believed that some States were unhappy with the geographical spread of candidates nominated by the President.
Below is a summary of the activity relating to ESC rights generally, the right to food and the right to adequate housing at the 25th session of the UN Human Rights Council.
Economic, Social and Cultural Rights
The ESC rights resolution was again led by Portugal and was adopted without a vote[2] after some last minute amendments. The omnibus resolution entitled ‘Question of the realisation in all countries of economic, social and cultural rights’[3] again called on States to sign and ratify the ICESCR and whilst it ‘welcomed’ the entry into force of the Optional Protocol, the use of weak language, calling on States to ‘consider’ signing the OP was disappointing. The resolution also acknowledged the Secretary-General’s report on access to justice[4] and ESC rights and requested the Secretary-General to prepare a further report for 2015, this time focusing on social protection floors.
The resolution contained new language on access to effective remedies and referred to the joint UN Social Protection Floor Initiative and ILO recommendation 202 (2012) on that topic. The resolution also included new language on the post-2015 development agenda focusing States’ attention on some of the specific areas in which the human rights framework can strengthen the MDGs post-2015: ‘Underlining the imperative need to accelerate efforts towards the achievement of the Millennium Development Goals, and recognizing the crucial importance of giving due consideration to the realization of [ESCRs] in the elaboration of the post-2015 development agenda’ and ‘to equality, social protection and accountability’.
Continuing with its outlier role vis-à-vis ESC rights, the US was the only State to explain its position in relation to this resolution. Not being a party to the ICESCR, the US pointed out that by joining consensus on this resolution it does not become bound by the Covenant. The US also ‘regretted’ reference to the ‘right to development’ which it says does not have an international understanding and which the US does not consider a human right in the legal sense. Finally, the US noted its view that the Human Rights Council is not the agreed venue for reaching consensus on the post-2105 development agenda and ‘nothing in the resolution should be construed as pre-determining’ it.
Right to Adequate Housing
The Special Rapporteur on the right to adequate housing, Raquel Rolnik, presented her final report[5] to the Council and engaged in an Interactive Dialogue, together with the Special Rapporteur on the right to food. Her report focused on security of tenure and presented 10 Guiding Principles on Security of Tenure for the urban poor. The report noted that globally, tenure insecurity was responsible for many millions of people living under daily threat of eviction, lack of access to services, or discrimination by public and private actors, and that the poorest bear the brunt of tenure insecurity. She emphasized that tenure rights extend beyond mainstream notions of private ownership and include multiple tenure forms including collective models.
The Report also included the Rapporteur’s two country reports for 2013: the United Kingdom and Indonesia. Following a controversial country mission to the UK last year, the UK Ambassador in her oral statement pointed out the UK’s disagreements with the Special Rapporteur’s report and that they do not consider the Guiding Principles on Security of Tenure to be appropriate for the UK.
In the Interactive Dialogue with the Special Rapporteur, State interventions were generally positive and supported the Guiding Principles on Security of Tenure. The co-sponsors, Germany and Finland emphasized non-discrimination and the particular vulnerability of women to insecure tenure and the differential adverse impact on women. A couple of States pointed out the role played by non-State and business actors in protecting security of tenure.
After a break of two years since the last resolution on adequate housing, Germany and Finland, put forward a strong draft resolution, including new language on security of tenure. The resolution was adopted without a vote after being orally revised[6]. The final text was slightly weakened (compared with the original draft) although retained many strong provisions which advanced the Council’s pronouncements on this right. The resolution extended the mandate of the Special Rapporteur for a further 3 years and added a clause recalling the Code of Conduct for Special Procedures Mandate Holders and stressing compliance.[7]
New language expressed concern about: the numbers of people living in unserviced and unplanned urban poor settlements and their vulnerability to disease, disasters, unemployment and lack of education; the number of foreclosures in recent years and the inadequate protections for tenants in private rental; and the disproportionate impact of the deterioration in the general housing situation on a number of groups. Further, new language recognized the importance of security of tenure and the need to promote a variety of tenure forms in urban development, land management and land administration.
It was pleasing to see the post-2015 development agenda also received attention for the first time in this resolution which called on States to ‘give due consideration’ to the right to adequate housing in the elaboration of the post-2015 development agenda.
Finally, new language was introduced which strengthened the call on States to cooperate with the Special Rapporteur by calling for ‘constructive dialogue’ in relation to follow-up and implementation of her or his recommendations.
In negotiations, South Africa, Egypt, the US and the GRULAC States played a vocal role. There were anecdotal reports that the negotiations for this resolution were difficult. Many were disappointed in particular by the retrogressive stance taken by South Africa on this and other resolutions before the Council this session. In particular, a number of NGOs, including South African NGOs, commented on South Africa’s contribution in its first Council session since it became a member[8] and given its strong domestic protection of ESC rights.
Again, the US was the only State to provide an explanation of its position and it was very similar to that provided in relation to the ESC rights resolution. In addition, the US stated that it read references to ‘non-discrimination’ as referring to the defined term in international law, and, wrongly, that security of tenure is not a human right, nor it is an element of the right to adequate housing in international law.
Right to Food
The Special Rapporteur on the right to food, Olivier De Schutter, presented to the Council his final report entitled ‘The Transformative Potential of the Right to Food’[9], including reports on his country visits to Malaysia and Malawi. The culmination of his six years work as Special Rapporteur, the report summarizes his previous recommendations, provides his diagnosis of the problems in fulfilling the right to food for all and proposes a new paradigm and way forward which involves a radical and democratic redesign of food systems. De Schutter advocates the movement away from a system that prioritizes efficiency and increased production, to one that pays attention to distribution, food sovereignty, support of small-scale producers, adequate nutrition and ecological sustainability. He emphasizes the need for monitoring and accountability mechanisms and participatory policy-making and for an international enabling environment which means reform by the North particularly in relation to international trade and agricultural policies.
In the Clustered Interactive Dialogue with the Special Rapporteurs, many States took the floor to comment on De Schutter’s report and term as mandate holder. Comments were generally positive and supportive. Many pointed out the importance of food sovereignty and supporting small-scale producers and a number of countries also emphasized the central role of women in food security and that empowering women was a necessary precursor to eradicating hunger. Many countries of the Global South were eager to underscore the critical importance of an enabling international environment and in particular a shift in international trade and agricultural policies. These comments should be seen in the context of the December 2013 WTO Ministerial Meeting which agreed the ‘Bali package’ including a controversial ‘peace clause’ relating to developing country public stockholding programs for food security - a result widely seen as evidence that, unfortunately, free trade is still viewed by some as trumping the right to food.
The resolution on the right to food, led again by Cuba, was also adopted without a vote after oral revisions.[10] Despite efforts by some States to push for the ‘stream-lining’ of resolutions, the resolution remains 8 pages and 51 operative paragraphs in length.
The resolution extends the mandate of the Special Rapporteur for a further 3 years. It contains only a small amount of new language. Importantly, a definition of the right to food[11] was introduced in the preambular paragraphs. Some new language links work by the Human Rights Council with the UN Conference on Sustainable Development and that of the Committee on World Food Security which is developing voluntary and non-binding principles for responsible agricultural investments and refers to the 2013 FAO Report ‘The State of Food Insecurity in the World 2013’. Additional new language is also introduced relating to international cooperation support for adapted technologies, ‘research on rural advisory services’, ‘access to financing services’ and the ‘establishment of secure land tenure systems’ and also highlighting the need to facilitate access of small-scale food producers, to national and international markets and their empowerment in value chains.
The EU raised its on-going concern about the ‘causal linkage proposed in [OP15] between … current distortions in the agricultural trading system’ and ‘local producers and poor farmers to compete and sell their products’ which it says is a simplification and does not take account of the complexity of issues relating to food security.
The next session of the Council, in June 2014, will again consider ESC rights and the GI-ESCR will have a forthcoming update on those developments.
3 April 2014 Lucy McKernan
UN Liaison
[2] And with some 62 co-sponsors, although the co-sponsorship list had not closed at date of publication.
[5] A/HRC/25/54, Add.1–2 and Add. 4
[6] A/HRC/25/L.18/Rev.1 – co-sponsored by 63 States.
[7] This was one of a number of amendments proposed by Egypt and others, relating to the role of the Special Procedures mandate holders.
[8] See http://seri-sa.org/index.php/38-latest-news/237-press-statement-south-african-delegation-at-the-human-rights-council-may-weaken-the-international-status-of-the-right-to-adequate-housing-27-march-2014
[11] Taken from Committee on Economic, Social and Cultural Rights, General Comment 12
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