Geneva Updates
Our strategic presence in Geneva sets us apart as the sole NGO exclusively committed to economic, social, cultural, and environmental rights. This permits us to play a pivotal role in promoting and protecting these rights globally.
New resources: ETOs in the context of climate change and in relation to International Financial Institutions
New resources: ETOs in the context of eco-destruction and climate change and in relation to International Financial Institutions
The ETO Consortium has released a new publication series which seeks to illustrate and provide guidance to practitioners on how to apply ETOs and the Maastricht Principles to specific thematic areas. Authored by members of the Consortium’s topical focal groups, the first two editions explore States’ extraterritorial obligations in the context of eco-destruction and climate change and in relation to International Financial Institutions (IFIs).
The brochure “ETOs in the Context of Eco-destruction and Climate Change”, prepared by Greenpeace and the Center for International Environmental Law (CIEL), describes the human rights impairments resulting from transboundary environmental destruction and climate change and outlines States’ extraterritorial obligations to prevent and mitigate these, including through international cooperation.
The second brochure “ETOs in the context of International Financial Institutions”, written by the Global Initiative for Economic, Social and Cultural Rights with contributions from Amnesty International, explores the extraterritorial obligations of States when acting through International Financial Institutions. It moreover discusses the direct human rights obligations of IFIs under international law and provides suggestions for civil society action.
Download ETOs in the Context of Eco-destruction and Climate Change from our library.
Download ETOs in the Context of International Financial Institutions from our library.
UN Committee raises issues on the impact of privatization in education on the realization of the right to education in Uganda
Press release 22 December 2014
(Kampala) In a list of issues released on Friday 5 December, the United Nations Committee on Economic Social and Cultural Rights (CESCR) formally asked the Ugandan Government to explain the impact of privatization in education “on the right to education of girls and children living in poverty”.
The Committee further requested that Uganda provide information on the measures taken “to ensure access to Universal Primary Education for all children, in particular children of ethnic groups and indigenous peoples as well as children with disabilities” as well as “to address the regional disparities in the enjoyment of the right to […] education, mainly affecting communities living in Northern and Eastern regions of Uganda.”
This is a first victory for the Initiative for Social and Economic Rights (ISER) and its partners, as several points that they had raised in a report submitted to the CESCR in October and focused on the effect of privatization on the right to education were included in the list of issues.
”We are pleased that the Committee on the Economic Social and Cultural Rights is questioning the impact of the growth of private education on the right to education, in particular for girls and children living in poverty. Our report demonstrates that the uncontrolled development of private education in Uganda is resulting in discrimination, particularly for the most marginalized groups. The fact that the Committee asks more information about it is a recognition that private school growth is an essential issue in Uganda, and will force the Government to explain itself on this” declared Salima Namusobya, the Executive Director of ISER.
Part of the privatization in education and the inequalities it engenders are due to the failure of the Government of Uganda to adequately fund public education, as government financing for public education is decreasing, against international legal standards. In this respect, ISER and its partner organizations welcomed that the CESR also requested the Government of Uganda “to indicate if [it] intends to increase the budget allocations for the realization of economic, social and cultural rights, in particular, to health and education sectors which have not increased in recent years despite the growing demand for these sectors’ services and to “inform the Committee of the budget allocations to these sectors for 2015”.
The Committee on Economic Social and Cultural Rights, is a UN body made up of international experts responsible for monitoring implementation of the International Covenant on Economic, Social and Cultural Rights. This list of issues published by the CESCR follows a pre-review of Uganda by the CESCR on 3 December 2014. The Ugandan Government must now respond in writing to questions posed by the Committee by 1st March 2015. Uganda will then be formally reviewed in plenary by the CESCR in June 2015, after which the Committee will make written recommendations.
ISER and its partner organizations stand ready to contribute to the debate on the reform of the education system. They will keep on working on this topic with the Ugandan civil society in the coming months.
Contacts
Namusobya SalimaExecutive Director
Initiative for Social and Economic Rights
Sylvain AubryRight to education researcher
Global Initiative on Economic, Social And Cultural Rights
Notes
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The Initiative for Social and Economic Rights (ISER) is a registered national non-governmental organisation in Uganda founded to ensure the full recognition, accountability and realisation of social and economic rights primarily in Uganda, but also within the East African region. http://www.iser-uganda.org
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The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) is an international non-governmental human rights organization which seeks to advance the realization of economic, social and cultural rights throughout the world, tackling the endemic problem of global poverty through a human rights lens. The vision of the GI-ESCR is of a world where economic, social and cultural rights are fully respected, protected and fulfilled and on equal footing with civil and political rights, so that all people are able to live in dignity. http://www.globalinitiative-escr.org/
Greece : Report unveils human rights violations stemming from austerity policy
FIDH Press Release:
Athens, Paris, 18 December 2014 – Austerity measures adopted in response to the economic crisis have adversely impacted human rights, such as the rights to work and health, and curtailed fundamental freedoms in Greece, denounce FIDH and its member organisation the Hellenic League for Human Rights (HLHR) in a report released today. The report gathers findings from a mission of investigation carried out by our organisations in January 2014. It depicts a country where economic hardship and austerity combined have threatened human rights and democratic standards across different sectors, from social and economic rights, to civil and political ones. It also exposes the risks inherent to policies that have ignored the adverse impact they were bound to have on society and points to the responsibilities that national and international institutions, particularly the EU and its member states, bear for such violations. The report reaches conclusions that are valid far beyond the Greek case, and indeed apply to all countries that have been undergoing economic assistance in response to a severe economic recession.
As a further extension to the Greek bailout has been negotiated within the Eurogroup and Greece is undergoing presidential elections, the report signals that what has been shrinking alongside public budgets, in Greece and elsewhere in Europe, is the space for individual rights and freedoms.
“The measures taken by Greece to meet its lenders’ demands proves a readiness, at the national as much as at the international level, to sacrifice nearly everything to economic recovery” declared FIDH President Karim Lahidji, in Athens for the release of the report. “While we accept that exceptional circumstances can require exceptional responses, the way policies were adopted and implemented in this context clearly failed to respect international standards”, he added.
The draconian targets for deficit and debt reduction set by the Troika were achieved mainly through cuts to public expenditure, including in essential services such as work and healthcare, without any consideration for the need to preserve minimum levels and meet minimum core obligations with respect to those rights. Authorities have thus overlooked the disastrous social effects that the programmes agreed with the Troika would likely produce, and failed to address pre-existing conditions – particularly regarding equal access to economic and social rights - that these exacerbated. In fact, the measures’ impact on human rights was never considered by neither Greece nor the Troika.
The one-sighted focus on economic and financial targets proved harmful to an already traumatised labour market and healthcare system. Massive cuts in public sector’s employment and a failure to tackle the fundamental social needs arising from the crisis have fuelled a sharp rise in unemployment, which touched unprecedented levels at 28% (September 2013) and 60,8% for the young (February 2013), before setting at 25,7% and 49,3% respectively. It also exacerbated pre-existing inequalities, with vulnerable categories paying the highest toll for a reduced access to work and worsening working conditions. Minimum wage was cut after February 2012 (when the second bailout was being negotiated) by 22% for all workers aged over 25 and 32% for under 25, while reforms aimed at making the labour market more ‘flexible’ significantly reduced protection for workers’ rights. Austerity clearly increased inequality.
Access to basic healthcare has also been severely impaired by the cuts to the public health budget and essential public health services and programmes. Doctors revealed that they sometimes had to refuse patients or postpone important surgeries due to a reduced number in hospital beds and cuts in an already understaffed and strained workforce, amongst other things. This, coupled with increased difficulties to contract health insurance, especially for the unemployed, has severely hindered access to healthcare, despite recent reforms aimed at ensuring access to public services to the uninsured. Again, vulnerable groups including women, migrants and the youth suffer a disproportionate burden, as the report shows.
"Unlike finances, human rights and fundamental freedoms cannot benefit from international bailouts” said Konstantinos Tsitselikis, HLHR President. “Economic and fiscal policies have blatantly disregarded their devastating social impacts and authorities have failed to provide the needed social support.”
Civil and political rights have also been undermined. The social unrest prompted by an austerity agenda in whose design the population has not been implicated – in blatant disregard for all regular channels for decision-making- and the deteriorating living conditions have been met with increasingly violent response and brutal repression by the authorities, while incidents are rarely investigated and hardly ever prosecuted. Far-right groups, most notably neo-Nazi Golden Dawn, gather increasing support as they draw on people’s discontent and a strong anti-austerity agenda. The government has also adopted an increasingly authoritarian stance towards public criticism, making the social and professional environment increasingly oppressive for independent media and other dissenting voices. This climate led, in summer 2013, to closing the Public Radio and Television Broadcast Service ERT, in a move that provoked public outrage in Europe and overseas.
By outlining the challenges that the country is facing and assessing them against international human rights standards, the report intends to show that what started as an economic and financial crisis has turned into an unprecedented assault on human rights and democratic standards in all countries sharing a similar fate. It calls on all the actors involved to address these challenges and overhaul an approach that threatens the very foundations on which the EU and its member states are built.
Although the Greek state bears primary responsibility for the human rights violations that occurred on its territory, the EU and IMF in imposing anti-crisis measures have also breached their obligations under international law. Similarly, EU Member States, which set up the Troika and endorsed its proposals, have breached their own obligations to assist Greece in fulfilling its human rights commitments’. The EU has in particular breached the obligation to respect, protect and promote human rights deriving from its own founding treaties and the EU Charter for Fundamental Rights. “I seriously doubt whether any human rights concerns were ever raised in designing and implementing the country’s “rescue” plans. On the contrary, human rights violations appear as having simply been regarded as an acceptable collateral damage in a broader crisis management, or as a well deserved answer to the ’Greek problem’. This is simply unacceptable” concluded Dimitris Christopoulos, FIDH Vice President.
Certain parts of the report received the fruitful collaboration of the Global Initiative for Economic, Social and Cultural Rights.
Read the report Downgrading rights: the cost of austerity in Greece
Human Rights Committee set to scrutinize Canada regarding extra-territorial human rights obligations
The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights (ICCPR), is set to scrutinize Canada regarding its extra-territorial human rights obligations under the Covenant. Canada will appear before the Committee in July 2015 for its periodic review. The Committee has made clear that the ICCPR includes extra-territorial obligations to respect and to ensure human rights, including by regulating and otherwise holding corporations accountable to those obligations for their activities abroad.
The Global Initiative for Economic, Social and Cultural Rights successfully intervened with a Parallel Report laying out the extra-territorial obligations under the ICCPR and requesting that the Committee include scrutiny on those obligations within the periodic review of Canada.
The List of Issues recently adopted by the Committee, which defines the scope of review, requires Canada to "inform the Committee of any measures taken or envisaged to monitor the human rights conduct of Canadian oil, mining, and gas companies operating abroad" and to "also inform what the available legal venues are in the State party for victims of human rights abuses arising from overseas operations of Canadian extractive firms." As the GI-ESCR Parallel Report makes clear, the jurisprudence of the Committee provides a clear articulation of the extra-territorial application of ICCPR obligations, including the legal obligation to regulated Canadian corporations to ensure that they do not violate human rights abroad, and the legal obligation to provide access to justice in the event of such violations.
The Global Initiative is now preparing a Parallel Report for the periodic review which will call on the Committee to hold Canada accountable for extra-territorial obligations in the context of Canadian corporations involved in building Israeli settlements in Palestine and extractive industries in Central America as well as for decisions made within international financial institutions such as the World Bank.
According to Bret Thiele, Co-Executive Director of the GI-ESCR, "This examination of Canada provides advocates the opportunity to address the issue of extra-territorial obligations and corporate accountability and provides the Committee the opportunity to further reaffirm that the ICCPR contains extra-territorial human rights obligations to which States parties must adhere."
The Global Initiative’s Parallel Report regarding the List of Issues can be found HERE.
The List of Issues can be found HERE.
Practitioners’ guide on Extra-Territorial Obligations in the context of Corporate Human Rights Violations
Practitioners’ Guide on Extra-Territorial Obligations (ETOs) in the context of Corporate Human Rights Violations
The International Network for Economic, Social and Cultural Rights (ESCR-Net) Corporate Accountability Working Group (CAWG) has published a new resource entitled “Global Economy, Global Rights – A Practitioners’ Guide for interpreting human rights obligations in the global economy” to support the interpretation and application of ETOs in the context of corporate human rights abuses.
Launched at a gathering of outgoing and incoming UN Special Procedure Mandate Holders in Geneva, the resource is designed to support the work of human rights practitioners; in particular UN special procedures mandate holders, treaty bodies and other agencies. It synthesizes and provides an analysis of the UN treaty body pronouncements – concluding observations and general comments – in relation to corporate human rights violations.
Several members of the Corporate Accountability Working Group (CAWG) of the International Network for Economic, Social and Cultural Rights (ESCR-Net), with significant experience in advocating for application of ETOs in situations of corporate human rights violations around the world, were involved in the development of this publication. In particular, the CAWG would like to thank the following members for their commitment and contribution to this publication:
Global Initiative for Economic, Social and Cultural Rights
Inclusive Development International
GI-ESCR: Our top five ESC rights priorities for the High Commissioner for Human Rights
Global Initiative for Economic, Social and Cultural Rights: Our top five ESC rights priorities for the High Commissioner for Human Rights Having been in office for three months now, the new High Commissioner for Human Rights, Mr Zeid Al-Hussein, will be well advanced in identifying his priorities for his term as High Commissioner. So we think it is timely to offer our top five suggestions for advancing economic, social and cultural (ESC) rights during his term.
The High Commissioner’s recent statement to the General Assembly in presenting the annual report of the work of his Office[1] had an encouraging emphasis on economic, social and cultural rights and evidenced a nuanced understanding of the interdependence of all rights and of the role of ESC rights in crisis and conflict causation and prevention. Highlighting two ‘looming tragedies’, Ebola and climate change, the High Commissioner acknowledged that ‘failure to address systemic and systematic denial of economic, social and cultural rights may be not only a causal factor ….., but also among its far-reaching consequences’.
We couldn’t agree more. However, we are concerned by the tendency of States and multilateral institutions to prioritise civil and political rights over ESC rights, even 20 years after the Vienna Conference and the commitments made to universality and indivisibility. We are keen to see the continued high-level promotion of ESC rights by the Office. Here are our top five suggestions regarding ESC rights during the High Commissioner’s term.
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Promoting economic, social and cultural rights
We think it is important for the Office to continue to reinforce the key principles emanating from the Vienna Declaration, namely the universality, indivisibility and interdependence of all rights. All rights – civil, cultural, economic, political and social – should be given equal attention by States and UN agencies, and the seriousness and devastating impact of ESC rights violations must be acknowledged.
We encourage the High Commissioner to continue to promote the ratification of the OP-ICESCR, as the growth and success of that complaints mechanism will substantially improve the understanding and acceptance of ESC rights through jurisprudence and put to rest any remaining questions about justiciability. It will also enable a closer and more sophisticated consideration and application of concepts such as ‘progressive realisation’ and ‘reasonableness’ which will assist in refining State strategies for implementation of ESC rights.
The High Commissioner is well-placed to highlight the underlying ESC rights violations as both causes and consequences of many conflicts and violence. This approach opens up opportunities to advocate for the realization of ESC rights as a means of conflict prevention. This is particularly pertinent when considering the impact of climate change which many commentators are predicting will lead to significant violent conflicts over scarce resources within the next generation.
The High Commissioner has already taken a lead in highlighting the role of the failure to realize rights to health care, food, livelihoods and housing and access to information, in fuelling the Ebola epidemic. He said ‘Ebola thrives at the intersection of chronic poverty, failure to deliver adequate public services, and failures of public trust in the authorities.’[2] Similar leadership in advocacy in relation to climate change and human rights will be vital in the coming year, as the States Parties to the UN Framework Convention on Climate Change meet in Lima (COP 20 in December 2014), with the goal of adopting a new legal instrument on climate change at its meeting in Paris in December 2015 (COP 21).
Frequently, human rights defenders come under attack when working to defend ESC rights, and in particular rights over key resources. Labor rights activists and land and environmental rights advocates are the first and second most ‘at risk’ categories of human rights defenders, according to the Special Rapporteur on Human Rights Defenders.[3] Again, promotion of ESC rights at the national level, and particularly the principles of transparency and participation in decision-making, could help to reduce conflicts and risks for ESC rights defenders.
The High Commissioner and his Office can also play a very constructive role by helping States to understand how to implement their ESC rights obligations. The obligations to respect and protect have historically received greater attention, but the obligation to fulfill ESC rights needs increased focus and attention. We suggest, for example, encouraging field offices to work with States on the positive ESC rights obligations associated with the obligation to fulfill. This can be done, for instance, by utilizing some of the excellent practical tools and information available to assist States, such as the Handbook on Realizing the Rights to Water and Sanitation recently developed by the Special Rapporteur on the right to water and sanitation, and the Guidelines on Security of Tenure developed by the Special Rapporteur on the right to adequate housing. Both offer practical guidance on how States can better meet their obligations to fulfill ESC rights at the domestic level.
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Defending women’s economic, social and cultural rights
Critical to the alleviation of poverty and disadvantage across the world is the promotion and protection of women’s ESC rights. The feminized face of poverty is testament to the persistent discrimination against women in law and practice in the area of ESC rights, such as access to land and productive resources, secure housing, access to sexual and reproductive health care and information and access to education. There is ample evidence to demonstrate that securing women’s equal ESC rights can have a transformative impact on the lives of poor women and consequently the lives of their children, families and communities.
For instance, research evidence suggests that secure land rights for women may help prevent the spread of HIV/AIDS by promoting women’s economic empowerment, thereby reducing their vulnerability to some forms of gender-based violence and exploitation, unsafe sex, and other AIDS-related risk factors.[4] Research also suggests that women with secure rights to land are much less likely to report experiencing physical and psychological violence within the context of their intimate partner relationships.[5] Studies have also linked women’s land, property and productive resource rights to better health, nutritional and educational outcomes for their children.[6]
Successful strategies for securing women’s ESC rights must involve combating the persistent harmful gender stereotypes and deeply embedded social norms and practices which discriminate against women in all areas of their life. It will also involve firmly responding to the recent, damaging backlash against the universality of rights and attempts to undermine the human rights of women (and other groups). This is occurring at the international level in the Human Rights Council and at the domestic level, for instance in relation to continuing resistance to women’s sexual and reproductive rights, and equal rights to property and land. It is occurring both in human rights treaty body reviews where female genital mutilation continues to be defended by some States and in related UN fora such as WHO (where the established definition of violence against women was recently questioned) and in the Commission on the Status of Women, where States in recent years have been unable to agree on consensus language upholding women’s rights, thereby undermining basic principles of gender equality. Most notably we have seen a large group of States pursuing a ‘traditional’ or ‘family values’ agenda which seeks to subvert the rights of individuals within the family, usually women, to the ‘greater good’ of maintenance of tradition and the family.
This is an issue that affects rights in all areas, impeding progress at the international level and preventing transformative change in both law and practice at the national and local levels.
We think it is crucial that the High Commissioner and his Office show very strong leadership on these issues and be vigilant in countering statements and moves to rollback progress and undermine universality. If ‘traditional and family values’ continue to garner support at the expense of fundamental individual human rights, the foundations of the system will be diminished and many of the hard-won gains in women’s rights (and LGBT rights) will be at risk.
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Human rights and the post-2015 development agenda
The Office and former High Commissioner did a lot of great work in urging the integration of the universally accepted human rights norms and principles into the work on the post-2015 development agenda and the sustainable development goals (SDGs).
The next year is a critical time and a once-in-a-generation opportunity for transformational change as the post-2015 process enters its final stage of intensive State negotiation with final agreements to be reached in September 2015. The SDGs will determine global development policy and influence national strategies and priorities, for the next 15 years.
We would highlight 3 priorities:
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ensure that human rights principles are integrated into the proposed sustainable development goals;
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ensure that discrimination and inequalities, both within and between countries, are directly addressed; and
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ensure that effective human rights based monitoring and accountability mechanisms are incorporated.
The failure of the original MDGs to pay attention to inequalities is one of their greatest failings. For many of the goals, progress was heralded on the basis of national statistics, whilst ignoring the significant lack of progress for certain groups: often women and girls, people in rural areas, persons with disabilities, minorities and other marginalized groups. We know that inequality is on the rise globally and there is ample evidence of the links between greater equality within societies and healthier, happier, more cohesive, less violent, societies and sustainable economic growth. Whilst inequalities have been addressed in the draft SDGs, sustained advocacy is required to ensure that these measures are not watered-down and that they link to the human rights principles of equality and non-discrimination (and therefore benefit from the substantial body of jurisprudence on their meaning and implementation) and that the collection of appropriate disaggregated data to capture systemic discrimination is integrated into the targets and implementation plans.
We have also seen how the lack of access to justice and effective accountability mechanisms in the original MDGs has in part caused their relatively modest progress. States and other powerful actors must be answerable for the new SDGs in order to avoid a similar fate where long-term sustainable development goals are sacrificed to short-term economic demands. This last point remains the biggest deficiency of the current draft SDGs: no specific accountability mechanism is identified.
We would encourage the High Commissioner to continue his predecessor’s strong advocacy in this respect and redouble efforts to ensure that human rights are not side-lined in political negotiations. We think the High Commissioner can play a pivotal role in engaging with States to convince them of the benefits of integrating a human rights approach and in particular the value of the well elaborated human rights principles of: participation, equality and non-discrimination and accountability.
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Human rights and the economic sphere
Economic and social rights will continue to go unrealized for millions of poor people around the world without tackling the inequities in the global economic systems. Despite the very clear links between human rights impacts and actors in the economic sphere, the economic sphere has proved to be somewhat impermeable to human rights approaches and advocacy in the past, in part as a function of differences of culture, priorities, conceptual frameworks and technical capacities. However, recent years have seen strong human rights advocacy in various economic policy discussions, such as in relation to: tax justice; oversight of international financial institutions; human rights budgeting; the restrictive provisions of bi-lateral investment treaties; and the impacts of so-called ‘vulture funds’.
This is an issue that the OHCHR has recognized as important in its ‘Thematic Strategies’ which will guide its work for the coming three years. Further, a number of special procedures mandate holders and treaty bodies are directly tackling these issues[7] and it’s vitally important to give this work greater prominence. We encourage the OHCHR to promote a broad understanding of the application of human rights obligations, which encompasses the economic sphere and advise and support domestic policy makers to apply human rights to economic policies and processes, in particular the principles of transparency, participation and accountability.
The global financial crisis and austerity policies in Europe brought these issues to the fore and highlighted in a very direct way the impact of economic policy on ESC rights. Civil society groups provided strong critiques of the complete failure of governments to consider human rights in their policy responses to the global financial crisis and advocated for the inclusion of human rights considerations into the discussion. Indeed, human rights advocates have found that, in order to rise to the challenge, it is imperative to provide greater clarity and specificity about how to tackle the crisis in a human rights compliant manner. Some excellent work has been done in this regard which can help others to sharpen their analysis and recommendations in order to ensure a consistent and coherent human rights response to global financial crisis and austerity policies.
Again, leadership from the Office on these issues, together with greater technical capacity to participate in discussions happening in the economic sphere, would assist to normalize the inclusion of human rights considerations in key international economic fora and develop a more sophisticated dialogue between the economic and human rights spheres.
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Non-State actors and Inter-Governmental Organizations
In an increasingly globalized world, with private actors searching for new investment opportunities in emerging markets, the proliferation of State and donor-led policies of privatization of public services and the proliferation of new multi-lateral financial institutions which is aiding a race to the bottom in social and environmental standards, the role of non-State actors and inter-governmental organizations such as the World Bank in both the fulfillment of human rights and in human rights abuses must be urgently and critically examined. Increasing attention has been focusing on the role of non-State actors, including corporate and business actors and international financial and development institutions, in human rights abuses in recent years.
Within the UN human rights system we have seen most treaty bodies addressing non-State actors through Statements, General Comments and in Concluding Observations for State reviews. Many Special Rapporteurs have also raised these issues in their reports and in response to communications. These mechanisms have drawn attention to the role in promoting and protecting human rights of business actors including State owned enterprises, international financial institutions such as the World Bank and development institutions, multi-lateral organisations including UN agencies, and overseas development assistance bodies. With the emergence of new lenders at the State level (eg: China) and the multilateral level (eg: new BRICs development bank), the current environment for international financial institutions is more competitive and IFIs are reacting by reducing the rigor of their social and environmental standards to try to attract more borrowers. An example is the European Bank for Reconstruction and Development which reviewed its standards earlier this year watering down human rights protections.[8] Yet, the decisions of these multi-lateral actors have significant impacts on the ESC rights of millions of people across the world.[9]
Civil society has long campaigned for greater regulation and accountability of business actors including those acting across national borders, and more recently States have begun to take substantive steps to address these issues.[10] Significantly, the Human Rights Council has responded to these issues through the endorsement of the UN Guiding Principles on business and human rights (GPs), the establishment of the Working Group on the issue of human rights and transnational corporations and other business enterprises and a number of resolutions culminating in the establishment of an Inter-Governmental Working Group (IGWG) mandated to elaborate a treaty on transnational corporations and human rights.
The GPs and the IGWG process for a treaty on transnational corporations are important advances towards the goal of accountability of business for human rights abuses, but the GPs of course are unenforceable and the IGWG process is likely to be a long, difficult and political process, given the politics involved in its establishment. Given this and the heated and highly political environment surrounding the Human Rights Council resolutions on business and human rights in June this year, this topic is at a critical juncture and could benefit from high-level attention to ensure that the work of the two initiatives just mentioned are complementary.
In the meantime, work on the accountability of non-State actors should continue beyond but in line with these two processes. We consider the areas requiring greater attention to include:
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Access to justice and remedies for violations, including ESC rights violations, and in particular the cross-border human rights impacts of non-State actors. If this issue is not addressed, a very large proportion of victims of rights abuses, particularly ESC rights abuses, will continue to go unremedied. The OHCHR report on access to domestic remedy highlighted many of the problems, but we now need to identify solutions, which must include consideration of ESC rights violations and ‘home’ States ensuring the availability of remedial mechanisms for overseas victims of violations involving their registered business entities.
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State extra-territorial obligations under human rights treaties, which oblige States to consider the extra-territorial human rights impacts of non-State actors, including:
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The impacts of corporations registered in their territories but operating overseas;
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The impacts of international financial institutions they are a member of;
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The impacts of State-owned enterprises operating overseas;
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The impacts of overseas investments of State investment entities.
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The UN human rights treaty bodies and Special Procedures mandates are already highlighting the importance of these obligations and some States are turning their attention to them. However, more needs to be done to promote the existence of these obligations and to encourage States to incorporate human rights due diligence, monitoring, accountability and access to remedy into their corporate regulatory frameworks and ODA bodies.
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Privatization of public services is increasingly the preferred policy of many States, yet in many cases this policy is adversely impacting universal access, exacerbating structural inequalities and failing to prioritize the most disadvantaged people.[11] It is largely going unregulated and unmonitored but is having significant and long-term impacts – often detrimental – on the rights to health, education, food, water and sanitation. Greater attention needs to be paid to investing in and strengthening public services and ensuring that the fulfillment of rights to food, water, sanitation, housing, education and health, when provided by private actors, is human rights compliant.
These are our suggested ‘top five’ priorities for ESC rights for the High Commissioner as he plans his work during his first term in office. Undoubtedly you will have others of equal importance and impact which we would be interested to hear about.
Lucy McKernan UN Liaison, Global Initiative for Economic, Social and Cultural Rights November 2014
[1] Statement by the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, to the UN General Assembly 69th session, New York, 22 October 2014. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15198&LangID=E
[2] Press conference by United Nations High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, 16 October 2014. See http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=15173&LangID=E
[4] Strickland, R. (2004).To Have and To Hold: Women’s Property and Inheritance Rights in the Context of HIV/AIDS in Sub-Saharan Africa. International Center for Research on Women (ICRW) Working Paper. See also: Panda, P., (2002). Rights Based Strategies in the Prevention of Domestic Violence. ICRW Working Paper No. 344.
[5] Gupta, J. (2006). Property Ownership of Women as Protection for Domestic Violence: The Best Bengal Experience, in ICRW (2006) Property Ownership and Inheritance Rights of Women for Social Protection – The South Asia Experience, at 45.
[6] Smith, L., Ramakrishnan, U., Ndiaye, A., Haddad, L. & Martorell, R. (2003). The importance of Women’s Status for Child Nutrition in Developing Countries. International Food Policy Research Institute Research Report 131, 58, 60, 79 ; Gomez, M. and Tran, D.H. (2012), Women’s Land and Property Rights and the Post-2015 Agenda, Official Back-ground Paper – Global Thematic Consultation on Addressing Inequalities, p.10.
[7] See for example the Report of the Special Rapporteur on extreme poverty and human rights on fiscal and taxation policies, UN Doc A/HRC/26/28, here http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G14/033/74/PDF/G1403374.pdf?OpenElement
[8] See for example: http://www.hrw.org/news/2014/03/05/european-bank-reconstruction-and-development-draft-environment-and-social-policy-ret
[9] See for example: http://www.amnesty.org/en/news/nigeria-world-bank-panel-turns-its-back-forcibly-evicted-community-2014-07-18
[10] Although there is a long history of failed attempts by States to put in place a form of international oversight of corporations.
[11] See for example the recent report of the Special Rapporteur on the right to education, Mr Kishore Singh, UN Doc A/69/402.
Fertile ground for corporate accountability advocates: CRC General Comment on business and children’s rights
Address to UN Forum on Business and Human Rights related to recent article published by International Service for Human Rights:
By Lucy McKernan, Global Initiative on Economic, Social and Cultural Rights
In the build up to the third UN Forum on Business and Human Rights, ISHR will publish a series of articles by key human rights defenders and experts in this field, before launching a special edition of its Human Rights Monitor on 1 December, in both English and Spanish. Click here to join our Spanish language mailing list.
Lucy McKernan addressed the UN Forum on Business and Human Rights on 2 December 2014
For human rights defenders working on children’s rights or corporate accountability issues, the General Comment[1] on business and children’s rights[2] by the Committee on the Rights of the Child (CRC) has a lot to offer. It provides a detailed and progressive explanation of State obligations with respect to business impacts on children’s rights, offering fertile ground for human rights advocates to engage with the Committee and with States on rights abuses involving business.
The focus of the General Comment is on State obligations under the Convention on the Rights of the Child, with respect to impacts on human rights by business operators and activities within its territory and business activities outside its territory but undertaken by its domiciled business entities.
The Committee takes a comprehensive approach such that it covers a very wide variety of actors, situations and issues and importantly prescribes in detail what States should do to ensure direct domestic legal accountability for business human rights abuses. For instance, in recognition of the role played by international organizations (eg: World Bank, IMF, WTO) in rights abuses and impacts and the intertwining of international organizations and business in large scale development projects, the General Comment addresses international organisations. States are reminded that they must comply with their Convention obligations when acting as members of such organizations and in the field of development cooperation,[3] including ‘in their decision-making and operations, as well as when entering into agreements or establishing guidelines relevant to the business sector.’
International organizations ‘should put in place procedures and mechanisms to identify, address and remedy violations ….. including when they are committed by or result from the activities of businesses linked to or funded by them.’[4] This is significant since, despite a number of treaty bodies insisting on State obligations extending to the context of international organisations, many States and international organizations continue to deny the direct applicability of human rights obligations in this context. This was evidenced recently in the rolling back of rights protections in the World Bank’s draft social and environmental safeguards policies.[5]
The General Comment’s broad and comprehensive approach also means that the door is open for issues not solely about children to be brought before the Committee. For instance, the General Comment talks about land dispossession (impacting whole communities, including children) involving business actors,
IMF loan conditionality,
privatization of public services,
the working conditions of and job creation and skills training for parents,
taxation of corporations and anti-bribery measures to ensure that States have the maximum available resources to realize children’s rights,
and regulation of pharmaceutical industry and of intellectual property rights to ensure access to medicines.
By way of example, GIESCR and its partner NGOs recently highlighted the issue of the impact of privatization in education on children’s right to education in Morocco
and Ghana,
using General Comment 16 to support our arguments that States have an obligation to ensure that privatization in education does not lead to extreme inequalities. The Committee questioned Morocco about this during its review and followed up with strong Concluding Observations condemning the impact of privatization in education on children’s right to education.
Another important issue addressed by this General Comment which presents advocacy opportunities, is extra-territorial obligations (ETOs).[15] The extra-territorial reach of human rights treaty obligations is contested by many States, despite the growing body of treaty body jurisprudence[16] affirming such obligations. Yet for many victims of rights violations involving business, international human rights protections will remain meaningless unless they operate across borders. In recognition of the difficulties of achieving corporate accountability due to complex legal structures and cross-border nature of business, the Committee has detailed the distinct obligations of both home[17] and host[18] States with respect to children’s rights.
For instance, contrary to current home State practice of reducing opportunities for foreign victims to bring claims in their domestic Courts, General Comment 16 says home States must enable access to effective remedy for foreign victims of human rights violations by business ‘where there is a reasonable link between the State and the conduct concerned.’[19]Another expansive interpretation of ETOs is the requirement that States ensure export credit agencies ‘take steps to identify, prevent and mitigate any adverse impacts the projects they support might have on children’s rights before offering support to businesses operating abroad.’[20]
These issues were addressed in the CRC’s review of Australia. The Committee expressed concern about:
Australian mining companies´ participation and complicity in serious violations of human rights in countries such as the Democratic Republic of Congo, the Philippines, Indonesia and Fiji, where children have been victims of evictions, land dispossession and killings. …. about reports of child labour and conditions of work of children that are in contravention of international standards in fishing industry enterprises operated by Australian enterprises in Thailand. [21]
The Committee recommended that Australia:
Examine and adapt its legislative framework ... to ensure the legal accountability of Australian companies and their subsidiaries regarding abuses to human rights, especially child rights, committed in the territory of the State party or overseas and establish monitoring mechanisms, investigation, and redress of such abuses.;
and
establish the mechanisms for the Export Credit Agency of Australia to deal with the risk of abuses to human rights before it provides insurance or guarantees to facilitate investments broad.[22]
There are numerous other useful provisions in General Comment 16 which offer broad advocacy avenues and our experience is that the Committee is receptive to new issues and creative advocacy which highlights serious children’s rights issues involving non-State actors.
Lucy McKernan is UN Liaison with the Global Initiative on Economic, Social and Cultural Rights. Follow her on Twitter at @LucMcK and the Global Initiative at @GIESCR
A General Comment (also called General Recommendation by some Committees) is a treaty body's interpretation of the content of Convention articles or on thematic issues or its methods of work. General Comments often seek to clarify the reporting duties of State Parties with respect to certain provisions and suggest approaches to implementing treaty provisions.
Committee on the Rights of the Child, General Comment No. 16 (2013) on State obligations regarding the impact of the business sector on children’s rights, UN Doc CRC/C/GC/16.
Op cit.
Para 47
Op cit.
para 48
See for example:
http://www.bicusa.org/safeguards-reaction-roundup/
;
http://www.hrw.org/news/2014/10/10/world-bank-group-proposed-policy-setb...
Para 38
Para 47
Para 33, 34
Para 36
Para 55
Op cit.
CRC General Comment 16, Para 57
See
http://globalinitiative-escr.org/advocacy/privatization-in-education-res...
See
http://globalinitiative-escr.org/the-un-asks-ghana-to-explain-itself-on-...
See
http://globalinitiative-escr.org/the-un-denounces-the-fast-paced-and-unr...
This refers to the issue of whether States’ human rights treaty obligations extend to persons or activities occurring outside its territorial boundaries. See General Comment 16, para 39 and 42 – 46.
See for example ‘A Practitioner’s Guide to Interpreting Human Rights Obligations in a Global Economy’, ESCR-Net, available here
http://www.etoconsortium.org/nc/en/library/documents/detail/?tx_drblob_p...
The home State is the State where a corporation, or its parent company, is registered or domiciled. It is usually where the corporation is head-quartered.
The host State is the State where a corporation is undertaking activities or operations, usually through a subsidiary company that is registered in the home State. Usually key decision-making is undertaken by the parent company in the home State and profits are remitted to the parent company in the home State.
Para 44
Para 45(c)
UN Committee on the Rights of the Child (CRC), Consideration of reports submitted by States parties under article 44 of the Convention: Concluding observations: Australia, 28 August 2012, CRC/C/AUS/CO/4, para 27.
Para 28 (a) & (c)
- See more at: http://www.ishr.ch/news/fertile-ground-corporate-accountability-advocates-crc-general-comment-business-and-childrens#sthash.FIIhG03w.dpuf
Déclaration à la presse 28 Novembre sur le rapport des institutions internationales appelant à la privatisation de l'éducation en Afrique
Pour les personnes présentes à Marrakech pour le Forum Mondial des droits de l'Homme, nous souhaitons vous informer qu'une déclaration importante sera faite demain par les organisations de la société civile en réaction à un rapport récent de la Banque Africaine de Développement (dont le Maroc est membre) et du Programe des Nations qui appelle à soutenir le mouvement de privatisation de l'éducation en Afrique. Ce rapport est essentiel car il émane d'institutions internationales influentes et il pourrait former la base du positionnement des Etats africains pour les négotiations des objectifs du millénaire pour le développement après 2015. Le raport fait des recommandations choquantes et sans précédent auxquelles la société civile à travers l'Afrique réagira de manière forte et unifiée à l'occasion du Forum Mondial des Droits de l'Homme. La déclaration sera faite aux participants du forum thématique éducation et à la presse demain vendredi 28 novembre à13h30 à la salle 6 du village du forum, bab Ighli, Marrakech. Tous les journalistes intéressés et accrédités pour le forum sont invités.
Nous enverrons sous peu le communiqué de presse, sous embargo jusq'à demain 13h30 GMT.
Merci de faire suivre ce message à toute personne intéressée. N'hésitez pas à nous contacter au +212 6 22 37 86 37 pour plus d'informations.
Joint CSO Letter: Participation crucial to success of post-2015 SDG process
Participation crucial to success of post-2015 process
The joint letter can be downloaded in pdf format here
As the end of 2014 draws closer, governments are deciding how the final negotiations on the post-2015 sustainable development agenda will be conducted (the ‘modalities’). The new framework to replace the Millennium Development Goals will be adopted at the United Nations next September and, after extensive preparatory debates and consultations, intergovernmental talks will soon get underway in earnest.
However, there is growing concern that space for the meaningful participation of civil society and social movements will be severely constrained in this final critical phase of negotiations. With this threat in mind, the Post-2015 Human Rights Caucus has sent a letter to the UN Representatives for Ireland and Kenya (co-facilitators of the talks) calling on them to ensure the voice of civil society and grassroots groups are properly heard.
It calls on the two countries and all other Member States to deliver an open, inclusive and transparent process, in which social movements and non-governmental organizations can meaningfully engage. The letter also reminds them that such involvement is not only a human rights imperative, but also a crucial precondition to the success of the new framework.
Participation, transparency, freedom of expression and the right to information are all fundamental components of States’ human rights obligations and commitments. Complying with these standards is necessary to deliver a set of global development goals which reflect the experiences, strategies, needs and desires of individuals and communities. As such, it is likewise crucial to cultivate broad ownership and legitimacy, and thereby provide for the successful implementation of the agenda at both the national and local levels. Member States should seize the opportunity to demonstrate their commitment to an inclusive, transparent post-2015 environment for civil society. • The letter sent by the Post-2015 Human Rights Caucus to the Permanent Representatives of Ireland and Kenya can be downloaded in pdf format here. • This Caucus initiative was led by the Center for Economic and Social Rights (CESR). To learn more about CESR's work on the post-2015 sustainable development goals, see here.
