• Geneva Updates

Now available: Private Actors and the Right to Education Caselaw Database

 

Today we are launching a new resource on our website, ‘Private Actors and the Right to Education Caselaw Database’ at  This database is a collection of case summaries on the right to education in the context of the involvement of private actors.

This new resource provides an essential source of information for researchers, advocates, lawyers and judges who wish to better understand and use the legal framework on the right to education, in particular in the context of the growth of private actors. The database will be regularly enriched, as more cases are summarised. Visit the page regularly for updates 

The cases presented were researched as part of the efforts to develop background material to assist the experts who drafted the Abidjan Principles on the human rights obligations of States to provide public education and to regulate private involvement in education. The cases are cross-referenced according to the relevant Abidjan Principles – including both the 10 Overarching Principles and the 97 Guiding Principles – so that users can easily find cases relevant to particular principles. The cases can also be researched by theme, country and court.

We hope you and other partners will find this new tool useful and welcome any feedback.

• Geneva Updates

ESC Rights Update from Geneva: 40th session of the UN Human Rights Council (25 February to 22 March 2019)

 

This Update provides information about:

• Economic, social and cultural rights

• Right to adequate housing

• Right to Food

• Human rights and the environment

• Right to work

• Cultural rights

• Other initiatives of interest

The UN High Commissioner for Human Rights, Michelle Bachelet, in her address to the Human Rights Council, focused her comments on gross inequality and issues related to economic, social and cultural rights, stating: ‘Inequalities in income, wealth, access to resources, and access to justice constitute fundamental challenges to the principles of equality, dignity and human rights for every human being.’ She named the existential threat of climate change, structural economic injustices and gross inequalities, as three of the most serious challenges facing humanity.

The High Commissioner emphasized that inequalities affect all countries and are generated by violations of both economic, social and cultural rights, and civil and political rights and these different violations can exacerbate each other. She explained that ‘people feel excluded from the benefits of development and deprived of economic and social rights – leading to alienation, unrest, and sometimes violence,’ and gave the recent examples of Sudan, Haiti and France.

Tackling inequalities is also a prerequisite to achieving the SDGs and civil participation is necessary for sustainable, effective development, said the High Commissioner. She noted the cases of China and India, where poverty alleviation had occurred but certain minorities remained discriminated against and their civil and political rights curtailed. She also noted the link between economic inequalities and other global trends, such as migration, violent extremism (mentioning the conflicts in Cameroon, Myanmar and Syria).

The High Commissioner also hailed some positive achievements in gender equality, such as the first female President of Ethiopia, but noted that violence against women remains a serious problem throughout the world. She concluded her speech:

‘inequalities, and the failure to give equal weight and respect to all human rights, have the power to erode all three pillars of the UN: peace and security, development and human rights. …….But human rights build hope. They bind humanity together with shared principles and a better future, in sharp contrast to the divisive, destructive forces of repression, exploitation, scapegoating, discrimination – and inequalities.’

 

Economic, social and cultural rights

The UN Secretary-General presented his annual report on the question of the realisation of economic, social and cultural rights in all countries, this year on the topic: ‘the role of economic, social and cultural rights in empowering people and ensuring inclusiveness and equality(A/HRC/40/29). The report also takes up the High Commissioner’s theme, of economic inequalities, highlighting how the normative framework of economic, social and cultural rights provides guidance to states on implementing the SDGs in a more effective and inclusive manner.

The report begins by exploring the understanding of inequality from a human rights perspective, arguing that sharp increases in inequality contributes to instability, discontent and conflict. Addressing economic inequality is necessary, but insufficient, to eradicate poverty, because it is necessary to also combat political, social and environmental inequality and power imbalances in society.

The importance of addressing both horizontal and vertical inequalities, and direct and indirect discrimination, are emphasized. In this respect, the report underlines the importance of collecting and disaggregating data to monitor inequalities, but cautioning about the need to put in place safeguards to protect subjects against breaches of privacy and mis-use. Human rights indicators, based on international legal standards, offer strong tools for analyzing the data.

The Secretary-General notes that the concept of minimum core obligations under the ICESCR, ‘offers an important entry point for ensuring inclusiveness and equality’, giving examples in relation to the right to social security, gender equality, unpaid care work and social protection floors for persons with disabilities.

Finally, the report discusses how various economic and social rights are related to people’s empowerment. It emphasises the right to participate and its crucial role in reducing inequalities and as an element of a human rights-based approach to sustainable development. Further, empowerment through the justiciability of ESC rights is explored and examples of important economic and social rights cases discussed.

Resolution on economic, social and cultural rights

The Council adopted resolution (A/HRC/RES/40/12) on the question of the realization in all countries of economic social and cultural rights. In the resolution, the Council calls upon States that are yet to ratify the ICESCR, to consider doing so with priority and to review any reservations to the Covenant. It emphasises the need for States to take bold and transformative steps to shift the world on to a sustainable and resilient path in line with the pledge in the Agenda 2030 to leave no one behind.

In addition, the Council encourages States to consider appropriate measures to promote de facto equality which remains one of the key aims of the Sustainable Development Goals. In this respect the Council underlines the importance of developing human rights training and education, which can help build societies that respect dignity, equality, inclusion, integrity, diversity and the rule of law.

To this end, the Council calls upon States to, inter alia, promote the use of human rights indicators to measure progress in the implementation of laws, policies and actions to address discrimination and inequalities, and to identify patterns of discrimination in law, policies and practices, and address entrenched structural barriers and unequal power relations that generate and perpetuate inequality over generations.

Finally, the resolution requests the Secretary-General to submit to the Council in 2020 a report on the role of new technologies for the realization of economic, social and cultural rights.

 

Right to Adequate Housing

Access to justice for the right to adequate housing, was the topic of the thematic report by the Special Rapporteur on the right to adequate housing, presented to this Council session A/HRC/40/61. The Special Rapporteur also presented to the Council her reports on her country visits to Korea (A/HRC/40/61/Add.1) and Egypt (A/HRC/40/61/Add.2).

In relation to her visit to Egypt, the Special Rapporteur raised serious concerns about reprisals against persons with whom she met. Egypt took the floor in the Interactive Dialogue with the Special Rapporteur to refute the reprisals claims and criticize the manner in which the Special Rapporteur carried out her mission and raised the subsequent allegations of reprisals. See HEREa call by civil society organisations for a firm response to the reprisals.

In her thematic report, the Special Rapporteur contends that the current global housing crisis can be understood as a crisis in access to justice, since without access to justice, housing is not properly recognized or addressed as a human right. She urges States to ensure a broad understanding of access to justice, which addresses, procedural, practical and substantive barriers so that people living in homelessness and inadequate housing can challenge the policy choices and decisions that created the conditions in which they live.

The Special Rapporteur outlines the importance of the legal protection of the right to adequate housing (including through other rights such as the right to life) and of the justiciability of that right in courts. She then lays out 10 key principles of access to justice for the right to housing:

Principle 1 – Access to justice must be ensured by all appropriate means and address the needs of diverse groups.

Principle 2 – States must implement the right to housing within the domestic legal system so as to provide at least the same level of protection as is afforded under international human rights law.

Principle 3 – Individuals and groups, households and communities must have standing to advance claims and to participate throughout legal processes and the implementation of remedies.

Principle 4 – Denying access to justice cannot be justified on the basis that the right to housing is not considered justiciable within the State’s domestic legal order.

Principle 5 – Access to justice must apply to both negative and positive State obligations, including obligations to progressively realize the right to housing.

Principle 6 – States may delegate components of access to justice for the right to housing to administrative bodies, but judicial remedies must be available when needed.

Principle 7 – Courts must interpret and apply domestic law in accordance with the State’s obligations to respect, protect and fulfil the right to housing.

Principle 8 – States must promote decision-making that is consistent with the right to housing.

Principle 9 – Remedies must address both individual and systemic violations.

Principle 10 – Remedies must be implemented by Governments and enforced by courts with participation by rights holders.

Also addressed is the importance of enlivening the concept of ‘progressive realisation’ in the adjudication of housing rights violations, through the application of the standard of reasonableness. The Special Rapporteur stresses: ‘The assessment of reasonableness relies on hearing from rights holders. It is a contextual analysis that takes as its starting point the dignity interests brought to light through access to justice.’ She points to the emerging jurisprudence of the CESCR on the right to housing which has articulated the reasonableness standard as requiring the State to pay attention to both individual circumstances of the claimant and structural factors.

The report also looks at access to justice in the specific context of evictions and displacement and in relation to criminalization and discrimination based on housing status. It then discusses the distinctive approaches necessary to ensure access to justice for the right to housing, for different groups, such as indigenous peoples, women, children and migrants.

The report concludes by considering the role of National Human Rights Institutions and of informal and customary justice systems, in delivering access to justice, and options for obtaining a remedy for violations of the right to housing by business actors and States’ obligations in this respect.

 

Right to Food

The Special Rapporteur on the right to food presented her annual thematic report focusing on fishery workers’ rights (A/HRC/40/56). In addition the Special Rapporteur presented reports of her country visits to Vietnam in November 2017, Indonesia in April 2018 and Argentina in September 2018.

The report begins by highlighting the instrumental role played by fishery workers in the progressive realization of the right to food and nutrition and the fight against global hunger. The report describes the recent trends in global fisheries and fish consumption, and discusses how fishery workers, who are critical to meeting the rising global demand for fish, suffer persistent human and labour rights violations. These violations undermine the ability of workers to secure accessible, available and adequate food for themselves and for their families, negatively impacting their own right to food.

The report notes that global fish consumption has doubled with almost 3.2 billion people relying on fish for their animal protein. The report says there is a lack of recognition of the contribution that inland fisheries make towards the greater fisheries sector, due to their small-scale nature. Yet, they remain integral to food security, poverty alleviation and sustainable development.

With the globalization of fisheries, there has been a rise in exploitative and dangerous working conditions in global supply chains, which aim to maximize outputs at the lowest economic cost, often at the expense of workers. This is especially rife at the harvest and processing stages of fishery chains, where there is a lack of adequate safeguards and accountability mechanisms.

The Special Rapporteur notes the poor occupational health and safety standards in the industry, as most work in areas that are 'dirty, dangerous and difficult'. States often fail to implement the applicable laws on health and safety standards.

Other challenges include: lack of set minimum wages; long hours of strenuous work; limited collective bargaining rights; and lack of social protection. All of these challenges negatively impact the workers and their ability to provide for their families thus impacting on the right to food of their families.

The report contends that women, children, indigenous people, coastal communities and migrant workers, in the fishery industries are in dire need of social protection since they are most vulnerable to exploitation, including human trafficking, fraudulent and deceptive recruitment, forced labour, physical, mental and sexual abuse, homicide, child labour, abandonment and discrimination.

The Special Rapporteur calls upon all actors involved, states, the private sector, international organizations and consumers to: take measures to incentivize greater protections for fishery workers; eliminate labour exploitation along supply chains; and ensure that fishery workers are included in decision-making processes and are guaranteed freedom of association.

In particular the Special Rapporteur recommends that all actors: improve human rights protections for fishery workers; adopt and enforce legislation criminalizing contemporary forms of slavery practices in the fisheries sector; decrease child labour; ratify all ILO and IMO conventions relevant to workers in the fisheries sector and ensure their effective implementation; reduce occupational and safety hazards; improve the wages of the workers; eliminate exploitative working conditions and refuse to purchase fish from fisheries associated with illegal, unregulated and unreported fishing practices and exploitative work conditions.

Resolution on the right to food

The Council adopted by consensus a resoution (RES/A/HRC/40/7) on the right to food.

In this resolution, the Council expressed its deep concern that, the number of hungry people in the world is unacceptably on the rise and the vast majority of hungry people live in developing countries. Without increased efforts there is a risk of falling far short of achieving the target of the Sustainable Development Goals on ending hunger by 2030.

The Council also expressed its concerns that women and girls are disproportionately affected by hunger, food insecurity and poverty despite the fact that they contribute more than 50 per cent of the food produced worldwide. This is partly attributable to gender inequality and discrimination. The Council thus encouraged States to mainstream a gender perspective in food security programmes, to take action to address any form of gender inequality and discrimination against women through women’s empowerment and to strengthen women’s role in decision-making.

In order to combat hunger, the Council called upon States to consider establishing appropriate institutional mechanisms and adopting national plans aimed at combating hunger. It urged States to consider reviewing any policy or measure that could have a negative impact on the realization of the right to food. This includes States making every effort to ensure that their international policies, whether of a political or economic nature, including international trade agreements, do not have a negative impact on the right to food in other countries.

In addressing the challenges facing the enjoyment of the right to food by indigenous peoples, the Council called upon States to take action to address obstacles, challenges and the continuous discrimination against indigenous peoples that impede their full enjoyment of the right to food.

The mandate of the Special Rapporteur on the right to food was extended for a further three years.

 

Human Rights and the environment

The new Special Rapporteur on Human Rights and the Environment, David Boyd, was appointed on the 1st of August 2018 taking over from John H. Knox. Mr Boyd presented his first report to the Council during this session (A/HRC/40/55). His report focused on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and specifically addressing air pollution. He also presented a report on his country visit to Fiji in October 2018.

In his report, the Special Rapporteur encourages swifter global recognition of the right to a healthy environment, after noting that more than 100 states have recognized this right either in their constitutions, international treaties, legislation or policies. The Special Rapporteur highlights the ability to breathe clean air as a component of the right to a healthy environment and discusses how air pollution influences negatively the enjoyment of other fundamental rights such as the right to life and the right to health, especially for vulnerable members of society. He notes that action at the household, local, national, regional and international levels is required.

The report also discusses other impacts of air pollution on human health, such as respiratory illness and infections, heart disease, stroke, lung cancer and negative birth outcomes. New evidence suggests that there is a link between air pollution and other health issues like cataracts, ear infections, asthma in children and chronic deficits in lung function.

Perhaps more concerning is the fact that more than 90% of the world’s population live in places where the minimum levels of fine particulate matter overshoot the safe levels set by the WHO. This means that more than 6 billion people, of which 2 billion are children, are inhaling air that is hazardous to their health, which results in 7 million deaths annually.

According to the report, vulnerable groups especially women, children, the elderly, minorities, indigenous peoples and members of traditional communities, people living in poverty and people with pre-existing health conditions, bear the greatest brunt of air pollution. Women for example suffer from high exposure due to their roles in cooking, while children’s growth and brain development can be impaired by exposure to air pollution.

People living in poverty resort to the use of solid fuels as they can’t afford alternative sources of fuel for cooking or heating and major plants and factories that emit pollution are commonly located in poor areas.

The report also discusses the relationship between air pollution and climate change noting that policy and legislative steps taken to address air pollution also serve to address the issue of climate change by reducing greenhouse gas emissions.

The enjoyment of other fundamental rights is greatly affected by air pollution. These include the right to life, the rights to health, water, food, housing and an adequate standard of living and the rights of the child. According to the report, there is also a close link between improved air quality and the realization of the Sustainable Development Goals including: Goal 1 on no poverty; Goal 5 on gender equality; Goal 6 on clean water and sanitation; Goal 9 on industry, innovation and infrastructure; Goal 10 on reduced inequalities; and Goal 13 on climate action.

The report highlights the human rights obligations relating to clean air: procedural obligations; substantive obligations; and special obligations towards those in vulnerable situations. The procedural obligations of States include: promoting education and public awareness; providing access to information; ensuring freedom of expression, association and assembly and facilitating public participation in the assessment of proposed projects, policies and environmental decisions; and the availability of remedy.

Substantive obligations require states to refrain from air pollution and also to ensure private actors and businesses refrain from practices that result in air pollution. States must monitor air pollution and its health impacts, assess the sources of air pollution, publicly report on air quality, establish air quality legislation and policies, develop air quality action plans, implement and enforce air quality rules and evaluate and revise air quality standards and plans.

Some of the concluding recommendations made by the Special Rapporteur include: reducing, minimizing or avoiding government actions that cause air pollution; eliminating all remaining fossil fuel subsidies, except for LPG cooking programme; conducting assessments of the environmental, health and human rights implications of new projects, policies and plans that could cause air pollution; prioritizing emissions reductions from high-polluting industrial facilities; protecting and expanding urban green space; and shifting to cleaner vehicles by strengthening emission standards and fuel efficiency rules while accelerating the transition to zero emission vehicles.

Resolution on environmental human rights defenders

The Council adopted by consensus a resolution recognising the contribution of environmental human rights defenders to the enjoyment of human rights, environmental protection and sustainable development (RES/A/HRC/40/11).

In this resolution, the Council expressed grave concern at the situation of environmental human rights defenders around the world. In particular, it was alarmed by the increasing violations against environmental defenders, including killings, gender-based violence, threats, harassment, intimidation, smear campaigns, criminalization, judicial harassment, forced eviction and displacement. It stressed that environmental human rights defenders, must be ensured a safe and enabling environment to undertake their work free from hindrance and insecurity.

The Council noted that the protection of human rights defenders can only be achieved through an approach which promotes and celebrates their work. Recognising that democracy and the rule of law are essential components for the protection of human rights defenders, the Council urged States to take measures to strengthen democratic institutions, safeguard civic space, uphold the rule of law and combat impunity. It also urged States to acknowledge, through public statements, policies, programmes or laws, the important role that human rights defenders play in the promotion of all human rights, democracy and the rule of law. This should extend to respecting the independence of their organizations and avoiding the stigmatization of their work.

States were urged to adopt laws guaranteeing the protection of defenders, put in place holistic protection measures for and in consultation with defenders, and ensure investigation and accountability for threats and attacks against environmental human rights defenders.

The Council also called upon States to implement the Guiding Principles on Business and Human Rights and to encourage, and where appropriate, require, all business enterprises to carry out human rights due diligence, including with regard to human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.

Finally, States were encouraged to facilitate public awareness of and participation in, environmental decision-making, implementation, monitoring and follow-up and review of the 2030 Agenda for Sustainable Development.

 

Right to work

The annual report of the High Commissioner for Human Rights on the realisation of the right to work, was presented to this Council session. The report examines the relationship between the right to work and the enjoyment of all human rights by young people (A/HRC/40/31).

This an important report because youth unemployment and labour conditions are topics of global concern, which are not elaborated in great detail in CESCR General Comment No. 18 on the right to work. The report analyses the major challenges faced by young people in accessing and participating in the labour market. It notes that the major challenges facing youth in accessing the labour market include: informal jobs that offer no social and legal protection; widespread use of austerity measures; effects of economic crises; gender discrimination in conditions of work; and inadequate education and training that is adapted to the changing needs of the labour market.

The report also notes that young women in particular face additional barriers in accessing and participating in the labour market. This extends to high school drop-out rates due to early marriage, pregnancy and sexual violence at school.

The report highlights that the right to work is essential for the realization of other rights, including the right to adequate housing and standards of living, the right to social security, the right to education and the right to participation in the economic, social and political spheres.

In relation to young people, the right to work requires States to create favorable measures and macroeconomic conditions for the realization of the right and to adopt specific job promotion policies targeted at youth. Those measures include putting in place specialized services for youth that assist them in identifying and securing available employment, guaranteeing the freedom to work and to choose a profession, prohibiting forced labour, and ensuring equality and non-discrimination in access to work, including guaranteeing equal pay for equal work for men and women.

Furthermore, the report highlights how the 2030 Agenda for Sustainable Development emphasises the pivotal role of youth employment in poverty alleviation, economic growth and peace and prosperity for all. It therefore calls for energizing youth programs that aim to strengthen young people’s capacity and skills for innovation, creativity and entrepreneurship, in readiness for the labour market.

Finally, the report offers recommendations such as: investing in youth education and technical and vocational training; promoting the transition from school to work; closing the gender gap by removing all barriers; ensuring equality and non-discrimination in access to work; discouraging unpaid internships; actively promoting young people’s right to participation and representation in institutional political processes and policymaking; and protecting young people from all forms of labour exploitation and age-based discrimination in accessing and participating in the labour market.

 

Culture Right

To mark the tenth anniversary of the mandate on cultural rights, the Special Rapporteur on cultural rights, Karima Bennoune, presented her annual report to the Council titled ‘Cultural rights: tenth anniversary report’ (A/HRC/40/53) together with a report of her country visit to Malaysia (A/HRC/40/53/Add.1). The thematic report examines the cultural rights approach to the universality of human rights and the close interrelationship between universality and cultural diversity and suggests strategies for advancing cultural rights during the next decade.

The Special Rapporteur documents the threat to the human rights system and cultural diversity, posed by selective approaches to universality and cultural relativist arguments. Such approaches exclude certain rights, certain persons or groups and recognizing only civil and political or economic, social and cultural rights as real human rights. While cautioning against abuse of cultural arguments to justify violations of human rights, she also demonstrates how cultural diversity and cultural rights contribute to strengthening the universal framework of human rights. She calls for a vigorous defence of universality that is grounded in cultural diversity.

The Special Rapporteur emphasizes that cultural rights cover a broad range of issues, such as expression and creation, including diverse forms of art; language; identity and belonging to multiple, diverse and changing groups; development of specific world visions and the pursuit of specific ways of life; education and training; access and contribution to, and participation in, cultural life; and the conduct of cultural practices and access to cultural heritage.

The report also clarifies the relationship between cultural rights and other human rights, demonstrating the position of cultural rights at the intersection of civil and political rights and economic and social rights. According to the Special Rapporteur, cultural rights are transformative and empowering hence providing important opportunities for the realization of other human rights.

Furthermore, the report highlights the relationship between cultural rights and women rights noting that the enjoyment of all other human rights by women hinges on ensuring that women can exercise their cultural rights in full equality, including the right to determine which traditions and cultural practices need to be preserved, modified or discarded. This approach, highlights the cultural dimensions of the principle of equality and non-discrimination.

The biggest challenge to cultural rights, says the Special Rapporteur, is cultural relativism. She underlines that it is important to continue making the distinction between cultural rights which amplify rights and are protected by universal human rights law, and cultural relativism, which diminishes rights in the name of culture and has been repudiated by international law.

In the next 10 years of the mandate, the Special Rapporteur hopes to address a number of critical issues such as: public space as a forum for the enjoyment of cultural rights; the work of cultural rights defenders; the cultural rights of persons with mixed identities; current controversies regarding cultural appropriation and misuse of that concept; the cultural rights of indigenous peoples; and discrimination in the field of cultural rights. A number of other issues, such as the impact of social media and the Internet on cultural rights and the cultural rights of youth and of rural people, will also be addressed by the mandate.

An interesting recommendation of the Special Rapporteur was for the Committee on Economic, Social and Cultural Rights to dedicate more attention to article 15 of the International Covenant on Economic, Social and Cultural Rights, in its dialogue with States and to conduct outreach so as to encourage more civil society groups working in the cultural rights area to engage with the Committee through the submission of shadow reports and the submission of cases under the Optional Protocol.

Resolution on cultural rights

In a resolution on the promotion of the enjoyment of the cultural rights of everyone and respect for cultural diversity (RES/A/HRC/40/6), adopted by consensus, the Council welcomed the work and contributions of the Special Rapporteur in the field of cultural rights and requested that she pay due attention to the enjoyment of cultural rights by persons with disabilities and to participate in relevant international fora related to the implementation of the 2030 Agenda for Sustainable Development, including by providing advice on the effective respect, protection and fulfilment of cultural rights in the implementation of the 2030 Agenda.

In addition, the Council affirmed the responsibility of the State to promote and protect cultural rights, and that these rights should be guaranteed for all, without discrimination. Further, the Council recognised that respect for cultural rights is essential for development, peace, the eradication of poverty, building social cohesion and the promotion of mutual respect, tolerance and understanding between individuals and groups.

 

Other initiatives of interest

• Human rights impact assessments of economic reforms

The Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, presented to the Council his ‘Guiding principles on human rights impact assessments of economic reforms’ (A/HRC/40/57).

The Council also adopted a resolution on ‘The effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’ (RES/A/HRC/40/8).

• Special procedures mandate holders

The annual communications report of Special Procedures was submitted to the Council (A/HRC/40/79). This report provides a complication of all the communications issued by the Special Procedures mandate holders in the past year.

In addition, there was a report on the twenty-fifth annual meeting of special procedures mandate holders of the Human Rights Council (4-8 June 2018) (A/HRC/40/38) and a report providing facts and figures on the special procedures for 2018 (A/HRC/40/38/Add.1).

• SDGs, development and human rights

The Office of the UN High Commissioner for Human Rights submitted to the Council its summary report (A/HRC/40/34) of the intersessional meeting for dialogue and cooperation on human rights and the 2030 Agenda for Sustainable Development, which occurred on 16 January 2019.

The meeting was mandated by resolution 37/24 of the Human Rights Council and it's theme was 'Empowering people and ensuring inclusiveness and equality', which is to be the theme in 2019 of the high-level political forum on sustainable development, which will review global progress in achieving the following Goals: 4 (quality education), 8 (decent work and economic growth), 10 (reduced inequalities), 13 (climate action), 16 (peace, justice and strong institutions) and 17 (partnership for the Goals).

The report provides a summary of each of the 5 sessions conducted during the day-long intersessional meeting.

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The next session of the Human Rights Council (41st session) will be held from 24 June to 12 July 2019.

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A huge thank you to Alderin Ongwae, intern with the Global Initiative for Economic, Social and Cultural Rights, for his work on this update.

• Geneva Updates

ESC Rights Update from Geneva: 65th session of the Committee on Economic, Social and Cultural Rights (18 February to 9 March 2019)

 

From the 18th of February to the 9th of March 2019, the Committee on Economic, Social and Cultural Rights (CESCR) held its 65th session in Geneva.

___________________________

State Reporting Procedure

During the session, the Committee considered the State reports of ***Estonia, Cameroon, Bulgaria, Mauritius, and Kazakhstan ***on the implementation of the International Covenant on Econommic, Social and Cultural Rights (ICESCR). The Committee held meetings with civil society representatives from Bulgaria, Cameroon and Estonia and Kazakhstan, who briefed them on the implementation of the provisions of the ICESCR in their respective countries.

The review of Slovakia was postponed by the Committee to its sixty-sixth session, scheduled for 30 September to 18 October 2019.

Following the session, the Committee published its ***Concluding Observations* **on Estonia, Cameroon, Bulgaria, Mauritius, and Kazakhstan. The concluding observations are accessible [HERE][1].

[1]: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=1308&Lang=en

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Pre-session

The Committee’s pre-sessional Working Group met from 11 - 15 March 2019 and adopted:

• Lists of Issues in respect of **Benin, Ecuador, Israel, Kuwait and Senegal**; and

• Lists of Issues Prior to Reporting for **Austria and Finland**.

The Lists of Issues and Lists of Issues Prior to Reporting are available [HERE][2].

[2]: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=1309&Lang=en

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Communications under the Optional Protocol to the ICESCR

Since the entry into force of the Optional Protocol to the ICESCR, the CESCR has received and registered a total of 64 communications. Of those registered communications the Committee :

• adopted Views in 5 cases – finding a violation in 4 cases and no violation in 1 case;

• declared 14 communications inadmissible;

• discontinued or withdrew 6 communications; and

• has 39 communications currently pending.

Our Blog about the work of the Committee under the Optional Protocol in 2018 is available here: International accountability for economic, social and cultural rights: recent developments in the complaints procedure of the Committee on Economic, Social and Cultural Rights

During the 65th session, the Committee examined two communications, finding one inadmissible against Spain (see summary below). In the second case, which was against Italy, the Committee found a violation of the right to health in relation to the regulation of in vitro fertilisation (see summary below). The Committee also decided to discontinue the examination of four communications.

***Irma Elisabeth Makinen Pankka and Teófilo Fernández Pérez v Spain*** (9/2015) (E/C.12/65/D/9/2015).

The authors of this communication against Spain, alleged violations of their rights to non-discrimination (Art 2) and to adequate housing (Art 11).

The authors signed a contract with a private company to purchase an apartment in a building under construction in Malaga. The author paid 87,694 euros in advance, pending the completion of the construction of the building. Due to safety and maintenance issues, changes to the apartment design were made. Disagreeing with this change, the authors requested the rescission of the contract and the reimbursement of the amounts paid. The company did not respond to this request but later filed a legal claim against the authors seeking payment of the full purchase price.

In 2015, the company asked the Court to set a date for the auction of the property, at which point the authors approached the CESCR arguing that their rights to adequate housing had been violated.

The State argued that the Communication was inadmissible on the grounds that:

* domestic remedies were not exhausted by the authors - Art 3(1);

* the allegations of violations of Articles 2 & 11 were manifestly unfounded and the authors had not demonstrated a violation of rights - Art 3(2)(e);

* the claim was an abuse of the right to submit a communication – Art 3(2)(f).

In relation to Article 3(1), the Committee considered that the authors had exhausted all available remedies in the domestic jurisdiction and that their communication was admissible under article 3(1).

In relation to admissibility under Article 3(2)(e), the State contended that the communication was manifestly unfounded since it relates to a real estate investment, not the purchase of a residence. The Committee agreed with the State and found that the judicial process referred to by the authors did not affect their residential dwelling and that they had not demonstrated that they had been deprived of their right to adequate housing nor that the right was actually threatened.

The case was thus declared inadmissible under Article 3(2)(e).

The case documentation is available [HERE][4] in Spanish.

 

*[S.C. and G.P. v Italy] [5] * (22/2017) (E/C.12/65/D/22/2017)

The case was brought by a couple undergoing in vitro fertilization (IVF) treatment, where the woman was forced to allow the transfer of embryos to her uterus. The woman alleged violations of her right to family (Art.10), to health (Art.12) and to enjoy the benefits of scientific progress and its applications (Art 15 (1) (b), 2 & 3).

The authors produced a number of embryos which were tested prior to implantation, to identify if the embryos had any genetic disorders which would result in a miscarriage if implanted in the woman’s uterus. The embryos were said to be of average quality, with low chances of success. Therefore, fearing she would suffer a miscarriage, the woman requested that the embryos not be transferred to her uterus.

The medical clinic told the woman that the Italian law 40/2004, which regulates the use of reproductive technology, required her to have the embryo transferred to her uterus and threatened to sue her if she refused. The woman felt compelled to allow the procedure and subsequently suffered a miscarriage.

She requested that the remaining nine embryos be donated to scientific research. This request was denied by the clinic noting that Law 40/2004 prohibited research on embryos. The woman filed an unsuccessful lawsuit against the clinic and the state contesting the clinic’s refusal to surrender to her the remaining embryos and the lack of consent prior to embryo implantation in her uterus.

The Committee declared inadmissible the authors claim concerning the prohibition against them donating the nine embryos to scientific research, on the grounds that they had failed to sufficiently substantiate their claims.

In relation to the authors’ second claim, the Committee found a violation of the right to health (article 12). It observed that the right to health includes the right to make free and informed decisions concerning medical treatment. Laws and policies that prescribe involuntary, coercive or forced medical interventions violate the State’s responsibility to respect the right to health. Therefore, forcing a woman to have an embryo transferred into her uterus, constitutes a forced medical intervention, contrary to the right to health.

Further, the Committee stated that any limitations on Covenant rights must comply with the conditions in article 4, including that the limitation is ‘compatible with the nature of these rights’. The Committee noted that the prohibition on withdrawing one’s consent to the transfer of an embryo, can lead to forced medical interventions or even forced pregnancies and was therefore not compatible with the nature of the right to health. It was thus a violation of article 12 of the Covenant.

The Committee recommended that Italy award compensation for the physical, psychological and moral damages suffered and adopt appropriate legislative and/or administrative measures to guarantee the right of all women to take free decisions regarding medical interventions affecting their bodies and to allow all persons to withdraw their consent to the transfer of embryos for procreation.

[5]: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f65%2fD%2f22%2f2017&Lang=en

[4]: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=E%2fC.12%2f65%2fD%2f9%2f2015&Lang=en

==

**Thematic work and Proposed General Comments**

The Committee continues to work towards the elaboration of general comments on: the right to science; land and the ICESR; and sustainable development and the ICESCR.

**Statement on the 2030 Agenda for Sustainable Development**

At this session, the Committee also adopted a statement (E/C.12/2019/1) on the pledge to ‘Leave No One Behind’ in the 2030 Agenda for Sustainable Development. This statement will comprise its input to the 2019 High-Level Political Forum, in July.

The Committee notes that the objective of the Agenda 2030, to eradicate poverty in all its forms and dimensions, by promoting just, inclusive and sustainable societies, is the essence of the ICESCR and that the rights protected in the Covenant underpin the SDGs.

The Committee highlights that, in line with SDG 10 (inequalities), the eradication of poverty will not be achieved in the context of widening gulfs between rich and poor both within and between countries. Therefore, it confirms that states reporting to the CESCR are required to provide information on the impact of income and wealth inequalities on the enjoyment of economic, social, and cultural rights. Whilst the Committee has more recently addressed wealth and income inequality in its concluding observations (see for example the 2018 concluding observations on South Africa), this is not a topic that States typically provide information on.

According to the Committee, the ICESCR provides a rights-based methodology which should be employed by states also for the monitoring of progress towards the attainment of the SDGs. The key components of this methodology include: the identification of marginalised and disadvantaged groups; assessment by states as to how their actions or inactions affect the realisation of covenant rights, with particular attention to the minimum essential levels of rights; adoption by states of an all-inclusive, transparent national strategy and plan of action to advance the full realisation of Covenant rights, with indicators, benchmarks and monitoring; analyse and take measures to protect ICECR rights against violations by private actors, over which they can exercise jurisdiction, whether within or outside their territory; and monitor progress towards the full realisation of the Covenant rights.

Importantly, the Committee here emphasises the concepts of sustainability and future generations. It says that states should use sustainable methods of rights fulfilment so that they are able to secure rights for present and future generations. The Committee also emphasises states duties with respect to both substantive outcomes and process and with respect to the general human rights principles: participation, transparency, accountability, non-discrimination, empowerment of beneficiaries, and respect for the rule of law.

The Committee goes on to assert that the ICESCR’s normative framework should be the ‘bedrock’ of all measures adopted by states to advance Agenda 2030. It can be applied: to the development of institutional national policies; to identify those most in need; to design policies that address root causes; in creating spaces for affected persons to be heard; and in designing accountability mechanisms.

The Committee also underscores the vital role civil society organizations play especially for monitoring of SDGs and ICESCR rights. Finally, it concludes:

*‘By complying with the normative obligations of the ICESCR, States will strengthen their ability to realise the SDGs and fulfil their pledge to ‘leave no one behind”.*

**Indigenous languages**

The Committee also adopted a letter from the Chair on the celebrations of the 2019 International Year of Indigenous Languages.

**Trade unions**

Discussions are also underway on a joint statement with the Human Rights Committee on article 8 of the ICESCR (the right to form and join trade unions) and article 22 of the International Covenant on Civil and Political Rights related to the right to freedom of association, including the right to form and join trade unions.

**Economic reform policies**

The Committee was also briefed by the UN Independent Expert on the effects of foreign debt on human rights, Juan Pablo Bohoslavsky, on the [Guiding Principles for human rights impact assessments for economic reform policies][6].

[6]: https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/443/52/PDF/G1844352.pdf?OpenElement

==

**Procedural matters **

During the session, the Committee discussed its working methods, including the simplified reporting procedure, the approach to reprisals, as well as the preparation of a back-to-back review of State parties’ reports with the Human Rights Committee (Finland and Estonia) and the preparation of a coordinated list of issues prior to reporting.

The states following the simplified reporting procedure are: *Austria, Finland, Chile, Italy, Belarus, Belgium, Norway, Ukraine, and Mongolia*.

==

**Membership **

At this session, the following new members joined the Committee (their terms commenced on 1 January 2019):

* Mr. Asraf Ally Caunhye from Mauritius

* Mr. Peters Sunday Omologbe Emuze from Nigeria

* Ms. Karla Vanessa Lemus de Vásquez from El Salvador

The Committee then held elections for the office holders. It elected by consensus Mr. Renato Zerbini Ribeiro Leão of Brazil as the Chairperson. It also elected Ms. Sandra Liebenberg (South Africa), Ms. Laura-Maria Craciunean-Tatu (Romania), and Mr. Shiqiu Chen (China) as Vice-Chairs of the Committee, and Mr. Olivier de Schutter (Belgium) as the Rapporteur.

Details on the current membership of the committee as of 1st January 2019 can be found [HERE][7].

[7]: https://www.ohchr.org/EN/HRBodies/CESCR/Pages/Membership.aspx

==

**Next sessions**

The sixty-sixth session of the Committee will be held from the 30 September to 18 October 2019 during which the Committee will consider the reports of:

**Benin, Denmark, Ecuador, Israel, Senegal, Slovakia, and Switzerland**

The deadline for submission of reports by civil society and National Human Rights institutions in respect of the review of these countries is the **6th of September 2019**.

The Programme of Work for the 66th session (including dates for the Dialogues) is not yet available but will be posted [HERE][8] in the coming weeks.

The 66th session will be followed by a *Pre-Session from the 21st – 25th of October 2019* at which the pre-sessional Working Group of the Committee will prepare;

* List of Issues for **Azerbaijan, Bolivia, Bosnia and Herzegovina**; and

* List of Issues Prior to Reporting in respect of **Chile, Italy and Mongolia**.

The deadline for the submission of information by civil society in respect of these Lists of Issues and Lists of Issues Prior to Reporting is the **26th of August 2019**.

[8]: https://tbinternet.ohchr.org/_layouts/treatybodyexternal/SessionDetails1.aspx?SessionID=1311&Lang=en

• Geneva Updates

International accountability for Economic, Social and Cultural Rights: recent developments in the complaints procedure of the Committee on Economic, Social and Cultural Rights

 

There was much excitement in human rights circles when the complaints procedure of the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect on 5 May 2013. Hopes were high for international accountability for economic, social and cultural rights, after a long period without any avenue of accountability at the international level for violations of economic, social and cultural (ESC) rights. After almost six years of operation and only 5 decisions on the merits, how has this procedure advanced the realisation of ESC rights?

The Optional Protocol to the ICESCR (OP) recognizes the competence of the Committee on Economic, Social and Cultural Rights (CESCR), to receive and consider ‘communications’ submitted by individuals or groups of individuals, who claim to be victims of a violation of the economic, social and cultural rights set out in the ICESCR. It provides an avenue for individuals to complain about a State’s failure to implement the Covenant, after the satisfaction of certain admissibility criteria, including the exhaustion of domestic remedies.

Out of the 169 state parties to the ICESCR, only 24 states have ratified the Optional Protocol. Of this number, only 3 are African states (Gabon, Niger and Central Africa Republic) and only 1 is an Asian state (Mongolia). After an initial flurry soon after the adoption of the OP in 2008, ratifications have been slow. The latest state to sign was Venezuela, in October 2018.

Nevertheless, the Committee has received a steady flow of communications with 64 registered in total. Of those registered communications :

• the Committee has adopted 5 ‘Views’ (decisions), of which 4 were found to be violations of the ICESCR;

• 14 were declared inadmissible;

• 6 were discontinued or withdrawn; and

• 39 are pending before the Committee.

41 of the 64 communications were received since October of 2017. This represented an increase of 412 per cent in new registrations in 2017-2018, compared with 2016-2017, when only eight cases were registered. All but three of the newly registered cases involve Spain and deal with evictions and the right to adequate housing. Most also seek interim measures related to a threatened eviction.

This deluge of cases has significantly increased the caseload of the Committee and put it under new workload pressure. It will be interesting to see how the Committee will deal with this and whether it might seek a group solution in relation to Spanish housing cases.

Unfortunately, there has not been an even geographical spread of cases brought to the Committee. Even before this surge in cases against Spain, the vast majority of the cases registered were against Spain and frequently related to the housing crisis in Spain. No cases have been submitted against Asian or African countries and only 2 cases have been brought against Latin American countries (2 against Ecuador ). This in part reflects the geographical spread of ratifications of the OP and, perhaps also, a low level of awareness of the complaints mechanism.

A high number of the communications have been found to be inadmissible (15). The vast majority of those were found inadmissible on the grounds of ‘rationae temporis’ which means that the alleged violation occurred before the entry into force of the Covenant for that state. In a case against Spain regarding the right to health, decided in 2018, the Committee confirmed that where the alleged violation occurs before the entry into force date, but continues after that date, the case will not be inadmissible.

A reasonable number of communications were also found inadmissible on the grounds that the Committee did not have jurisdiction, often because the claims were made under another human rights treaty. A smaller number were found inadmissible on the grounds of failure to exhaust domestic remedies and insufficient substantiation of the facts.

In terms of decisions on the merits, the Committee found violations against Spain in two cases relating to housing rights, against Ecuador in one case regarding the right to social security and gender equality and against Italy in one case regarding the right to health of a woman undergoing IVF treatment. The case where no violation was found, was against Spain and related to the right to social security for prisoners.

It is interesting to note that in most of the cases where a violation was found, the Committee had received a third party intervention, submitted by non-governmental organisations (NGO) or a Special Rapporteur. The Committee formalised this process through the adoption of ‘Guidance on third party interventions’ which requires intervenors to seek and be granted permission from the Committee to make the third party intervention.

In one case the state challenged the decision of the Committee to allow the submission of a third party intervention from an NGO. However, the Committee confirmed that under article 8(1) of the OP, the Committee can accept relevant information and documentation submitted by third-party persons or bodies where necessary to properly decide on a case, provided that such submissions are authorized by the Committee and subsequently transmitted to the parties for comments.

Interim measures were requested (article 5 of the OP) in at least one of the cases adjudicated on the merits, but were refused, on the grounds that the Committee had not received sufficient individualized information to substantiate the existence of possible irreparable damage to the authors.

The main topics of the communications registered so far have focused on evictions, the right to housing and the right to social security. There have also been cases on the right to health, the right to work and cultural rights.

==

Recent communications

In 2018, the Committee gave its decision in a case on the right to social security, Trujillo Calero v. Ecuador (E/C.12/63/D/10/2015). The case was brought by Ms. Marcia Cecilia Trujillo Calero who had made 29 years’ worth of retirement contributions to the Ecuadorian Institute of Social Security (IESS), including during the period that she was an unpaid domestic worker looking after her children. Her application for early retirement was denied on the grounds that she did not have the required minimum 300 contributions, because an eight-month pause in voluntary payments (during the period when she was not earning an income) had disaffiliated her from the retirement scheme and hence invalidated all her subsequent voluntary payments.

The Committee held that Ecuador violated Ms. Trujillo’s rights to social security (Article 9), to non-discrimination (Art 2(2)) and to gender equality (Art 3), when the IESS denied her early retirement request and that the conditions of the voluntary affiliation imposed on the author, as an unpaid domestic worker, constituted discriminatory treatment in relation to her right to social security.

The Committee also pointed out that the State had not sufficiently explained the reasonableness and proportionality of the requirements of access to the scheme, and to remain a voluntary affiliate, in the case of women who performed unpaid household work.

This decision was important because the Committee set out the minimum state obligations in relation to the right to social security and because it was the first time the Committee addressed the gendered impacts of state policy. In analysing the link between unpaid care work and gendered access to social security, the Committee applied a ‘substantive equality’ approach. It noted the discriminatory impact of the law in practice, such that a high proportion of those without access to an old age pension, were women who had devoted a significant proportion of their working life to unpaid domestic/care work. Without an income it was much more difficult for these women to contribute to the contributory pensions scheme.

In terms of remedies, the Committee ordered payment to the complainant of the retirement benefits, her legal costs and compensation for the violation. Following its practice in previous cases, the Committee also ordered general measures which attempted to address structural issues, including: the adoption of special measures in relation to women to ensure gender equality, including steps to remove impediments to women unpaid care workers contributing to social security plans; and the formulation of a plan for a comprehensive non-contributive pension scheme.

Another example of innovative and targeted remedies is the Committee’s order in the case M.B. Djazia and N. Bellili v Spain, that Spain provide the complainant with public housing and resolve the lack of coordination between court decisions and social services, which can result in an evicted person being left without adequate accommodation.

A trend in a number of the cases where a violation was found, including the Trujillo Calero case, is the State’s failure to submit sufficient information to justify their decisions or actions. It seems that States are not yet familiar with the adjudication of ESC rights and have not realised the importance of submitting information to show that they are using the maximum available resources to fulfil rights and to show the ‘reasonableness’ of their decisions not to fulfil rights (or to limit rights).

This information is essential for the Committee to properly adjudicate the reasonableness of state action or inaction. Often this requires information of a systemic nature, for instance regarding the allocation of resources to, and within, relevant sectors (housing, health etc.). It might also require information about processes for the development of policies or decisions that impact people, for instance, showing whether the state consulted with affected persons or whether the discriminatory impact of policies was considered and justified?

Another recent case of interest, is S.C and G.P vs. Italy. The case was brought by a couple undergoing invitro fertilization (IVF) treatment, where the woman was forced to allow the transfer of embryos to her uterus. The woman alleged violations of her right to family (Art.10), to health (Art.12) and to enjoy the benefits of scientific progress and its applications (Art 15 (1) (b), 2 & 3).

The authors produced a number of embryos which were tested prior to implantation, to identify if the embryos had any genetic disorders which would result in a miscarriage if implanted in the woman’s uterus. The embryos were said to be of average quality, with low chances of success. Fearing she would suffer a miscarriage, the woman requested that the embryos not be transferred to her uterus.

The medical clinic told the woman that the Italian law 40/2004, which regulates the use of reproductive technology, required her to have the embryos transferred to her uterus and threatened to sue her if she insisted in her refusal. The woman felt compelled to allow the procedure and subsequently suffered a miscarriage.

She requested that the remaining nine embryos be donated to scientific research. This request was denied by the clinic noting that Law 40/2004 prohibited research on embryos. She filed an unsuccessful lawsuit against the clinic and the state contesting the clinic’s refusal to surrender to her the remaining embryos and the lack of consent prior to embryo implantation in her uterus.

The Committee declared inadmissible the authors claim concerning the prohibition against them donating the nine embryos to scientific research, on the grounds that they had failed to sufficiently substantiate their claims. In relation to the authors’ second claim, the Committee found a violation of the right to health (article 12).

It observed that the right to health includes the right to make free and informed decisions concerning medical treatment. Laws and policies that prescribe involuntary, coercive or forced medical interventions violate the state’s responsibility to respect the right to health. Therefore, forcing a woman to have an embryo transferred into her uterus, constitutes a forced medical intervention.

Further, the Committee stated that restrictions on Covenant rights must comply with the conditions in article 4, including that the limitation is 'compatible with the nature of these rights'. The Committee noted that the prohibition on withdrawing one’s consent to the transfer of an embryo, can lead to forced medical interventions or even forced pregnancies and was therefore not compatible with the nature of the right to health. It was thus a violation of article 12 of the Covenant.

The Committee recommended that Italy award compensation for the physical, psychological and moral damages suffered and adopt appropriate legislative and/or administrative measures to guarantee the right of all women to take free decisions regarding medical interventions affecting their bodies and to allow all persons to withdraw their consent to the transfer of embryos for procreation.

==

Conclusion

The ICESCR communications procedure has had a steady and positive start. On the whole, the cases before the Committee have been relatively straight forward and enabled the Committee to develop strong procedural and substantive jurisprudence, particularly on housing, social security and gender equality. The Committee has also emphasised underlying structural problems, such as indirect discrimination in the social security system. It has also reminded States, particularly through the remedies ordered, of their obligations to fulfil ESC rights. For example, asking States to: put in place a comprehensive housing strategy to guarantee the right to adequate housing for people with low incomes; and formulate, within a reasonable time, a plan for a comprehensive non-contributive pension scheme.

On admissibility matters, the Committee has followed the jurisprudence of the other human rights treaty bodies. It has innovated on the question of third party interventions and the publication of its table of pending cases. Unfortunately the dramatic increase in caseload is likely to create delays, but may also lead to an increase in the allocation of sitting time to the Committee.

The low ratifications of the OP remains concerning and may hamper the potential for the development of important international jurisprudence on economic social and cultural rights. Boosting the ratifications of the OP is essential to ensuring the continuing legitimacy of the procedure and enabling the Committee to develop a well-rounded body of case law, addressing a range of ESC rights issues in a range of countries across the world.

By Lucy McKernan, Geneva Representative, GI-ESCR & Alderin Ongwae, Intern, GI-ESCR

2 April 2019

• Geneva Updates

ESC Rights Update from Geneva: 64th session of the Committee on Economic, Social and Cultural Rights

 

From 24 September - 12 October 2018, the Committee on Economic, Social and Cultural Rights (CESCR) held its 64th session in Geneva.

During the session, on 5 October, the Committee held its regular Meeting with States Parties which involved a discussion of the work of the Committee and States sharing their views on its work. The discussion addressed the simplified reporting procedure, the 2020 review of treaty body mechanisms, and the election of Committee members.

On the simplified reporting procedure, so far New Zealand and Spain have completed their reviews under this procedure and 10 more States (Bulgaria, Belarus, Belgium, Norway, Ukraine, Austria, Chile, Finland, Italy, Mongolia) are at various stages of the process of reporting under the simplified reporting procedure. The Committee Chair confirmed that in future this procedure will be offered to other States that have a longer reporting history.

 

 

Webcast

If you’re interested in watching any of the public meetings of the session, you can watch the UN webcast HERE.

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State Reporting Procedure

The Committee considered the State Party reports for the following States:

Argentina, Cabo Verde, Germany, Mali, South Africa, Turkmenistan

For Cabo Verde, South Africa and Mali, the Committee was reviewing their Initial Reports and therefore 9 hours of meeting time was allocated for the Dialogues with those States.

The Committee has published its Concluding Observations for all States reviewed HERE.

Pre-session

The Committee’s pre-sessional Working Group met from 15 – 19 October 2018, and it adopted:

Lists of Issues in respect of Denmark and Switzerland; and Lists of Issues Prior to Reporting for Belarus, Belgium, Norway, Ukraine.

The Lists of Issues and Lists of Issues Prior to Reporting are available HERE.

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Communications under the OP-ICESCR

The Committee had, as of the start of the session, formally recorded 57 communications. Fourteen of those communications have been declared inadmissible, 37 are still pending, and four have been decided on the merits.

During their meeting with States Parties, Committee members noted that despite the increase in the number of Communications, the resources of the Petitions Unit had not increased commensurately. Therefore, if the number of communications received by the Committee continues to grow, it will develop a backlog, like some other treaty bodies, unless additional resources are directed to the Petitions Unit to enable it to process all communications in a timely manner.

One communications was finalised by the Committee at this session and it was found inadmissible: Baltasar Salvador Martínez Fernándezv Spain (E/C.12/64/D/19/2016) available HERE (only in Spanish at this stage).

Baltasar Salvador Martínez Fernándezv Spain (E/C.12/64/D/19/2016)

This case concerned attempts by a corporate mortgagee to evict the mortgagor/occupier for default on the mortgage and to evict other subsequent occupiers who claimed they had no other place to live. The occupiers were convicted of the crime of ‘usurpation’ (encroaching on another’s property rights).

The author alleged that Spain’s eviction laws and usurpation laws are inconsistent with the ICESCR and specifically with the right to adequate housing in article 11. Specifically, he claimed that the criminalisation of illegal occupation of uninhabited housing, for the purposes of using as a dwelling, where there is no other affordable housing available, is contrary to the right to adequate housing.

The Committee said the author had not demonstrated deficiencies in the legal decisions and that it was beyond the Committee’s competence to review the Court’s interpretation of the State’s laws. Further, the author had not provided information or evidence to demonstrate that his conviction for usurpation affected his right to adequate housing.

Therefore, the Committee found that the author had not sufficiently substantiated his claims under article 11 of the Covenant and therefore the communication was inadmissible pursuant to article 3(2) of the Optional Protocol.

Ratification of the Optional Protocol

Venezuela became the 24th State Party to ratify ratification the Optional Protocol to the ICESCR. This means that communications under the OP-ICESCR can now be brought against Venezuela in respect of allegations of violations of the Covenant by Venezuela.

Unfortunately Venezuela has not accepted the Inquiry procedure under Article 11 of the Optional Protocol and therefore the Committee does not have jurisdiction to undertake an Inquiry in respect of Venezuela.

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Thematic areas of work

Day of Discussion - the right to science

A Day of General Discussion on Article 15 of the Covenant, was held on 9 October. The discussion addressed the right to enjoy the benefits of scientific progress and its applications and on other provisions of article 15 and the relationship between science and economic, social and cultural rights. The discussion was part of the process towards the development of a new general comment on this topic which will provide guidance to States on the measure to be adopted to ensure full compliance with article 15.

The Day of General Discussion was open to participation by all stakeholders by attending the discussion and intervening from the floor or making a written submission. There was participation from a range of stakeholders, including States and civil society. However, the discussion did not attract the same level of participation as we saw at the last Day of Discussion for General Comment 24 on ESC rights and business activities.

The Co-Rapporteur for the proposed general comment, Mr Mikel Mancisidor, introduced the discussion, explaining the process so far and the need for a general comment. He noted that this right had not been frequently addressed in State Party reporting. Four panels of speakers then addressed the Committee on the normative contents of the right to enjoy the benefits of scientific progress and its applications, the relationship between this right and other rights, possible limitations on this right and the scope of States’ obligations and other actors’ obligations and responsibilities.

The precise focus of the general comment remains open. Therefore the discussion on 9 October was broad ranging and the Committee will use the inputs to determine what should be the specific focus of the general comment.

The Committee is aiming to adopt a new general comment at its sixty-sixth session in autumn 2019. Once a draft is developed, it will be made publicly available and written submissions from all stakeholders will be invited.

For further information see HERE.

Statement on ESC rights and climate change

Recognising the very significant link between climate change and economic, social and cultural rights, the Committee issued a Statement in response to the publication of the special report of the Intergovernmental Panel on Climate Change, on the impact of global warming of 1.5°C above pre-industrial levels.

In the Statement the Committee briefly outlined the well-documented harms to economic, social and cultural rights, caused by climate change and confirmed that ‘a failure to prevent foreseeable human rights harm caused by climate change, or a failure to mobilize the maximum available resources in an effort to do so, could constitute a breach of this obligation.’

In discussing the human rights duties of States, the Committee reminded States that their Covenant obligations extend to populations outside their territories and to obligations of international assistance and cooperation, which relate to climate finance and the transfer of green technologies from high-income States to developing States. It also noted that States’ declared Nationally Determined Contributions (pursuant to the Paris Agreement) are inadequate to avoid the most severe impacts of climate change:

‘In order to act consistently with their human rights obligations, the NDCs should be revised to better reflect the « highest possible ambition » referred to in the Paris Agreement (article 4.3).’

Further, the Committee noted that the implementation guidelines for the Paris Agreement, which will be agreed by States at the next UNFCC Conference of the Parties to be held in Katowice in December, ‘… should require from States that they take into account their human rights duties in the design of the NDCs. This implies acting in accordance with the principles of gender sensitivity, participation, transparency and accountability; and building on local and traditional knowledge.’

Highlighting the scale and urgency of the task confirmed in the 1.5°C report, the Committee said ‘A fundamental shift in the global energy order is urgently required from hydrocarbon to renewable energy sources, in order to avoid dangerous anthropogenic interference with the climate system and the significant human rights violations that such interference would cause.’

In conclusion, the Committee affirmed its continuing role on this topic:

‘the Committee shall continue to keep under review the impacts of climate change on economic, social and cultural rights, and provide States guidance as to how they can discharge their duties under the International Covenant on Economic, Social and Cultural Rights in the mitigation of climate change and adaptation to its unavoidable effects.’

This is a very important and timely Statement by the Committee which provides clear guidance on its approach to the issue of climate change and the importance of the 1.5°C temperature goal, from a human rights perspective. It also speaks directly to States as they meet in Katowice in December to adopt guidelines which will explain how the Paris Agreement is to be implemented, reminding them of how their human rights obligations apply in that context.

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Elections

Following the April 2018 elections for CESCR membership, 2 seats remained vacant – 1 seat for Asia and 1 seat for Latin America and the Caribbean.

In July 2018 the Economic and Social Council held a further election in respect of those 2 vacant seats. Ms Karla Vanessa LEMUS de VÁSQUEZ from El Salvador was elected to fill the third seat for Latin America and the Caribbean.

Since no nominations were received in respect of the vacant Asian seat, that seat remains vacant. The ECOSOC decided to postpone the election of one member from the Asia-Pacific States but did not specify when it would hold a further election for that seat. It is assumed that if any nominations are received, a further election will be held when the ECOSOC sits in December 2018.

Therefore on 1 January 2019, 3 new members will commence their terms with the Committee:

• Mr Asraf Ally Caunhye from Mauritius

• Mr Peters Sunday Omologbe Emuze from Nigeria

• Ms Karla Vanessa Lemus de Vásquez from El Salvador

The following members will be stepping down from the Committee on 31 December 2018:

• Mr Azzouz Kerdoun from Algeria

• Mr Chandrashekhar Dasgupta from India

• Ms Maria Virginia Bras Gomes from Portugal

• Mr Clément Atangana from Cameroon

Unfortunately the gender balance on the Committee remains poor. From 1 January 2019 the Committee will be comprised of 17 members, of which 5 are female and 12 are male. States should be very concerned by this gender imbalance on a United Nations human rights treaty body, particularly given the Committee’s mandate to monitor implementation of States’ obligations to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights.

Further information on the elections is available HERE.

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Next Session

The sixty-fifth session of the Committee will be held from 18 February – 8 March 2019 during which the Committee will consider the reports of:

Bulgaria, Cameroon, Estonia, Kazakhstan, Mauritius, Slovakia

The deadline for civil society submissions in respect of the review of these countries is 7 January 2019 (and 25 January at the latest).

The Programme of Work for the 65th session (including dates for the Dialogues) is not yet available but will be posted HERE in the coming weeks.

The 65th session will be followed by a Pre-session from 11 to 15 March at which the pre-sessional Working Group of the Committee will prepare:

• Lists of issues for Ecuador and Israel; and

• Lists of Issues Prior to Reporting for Austria, Chile, Finland, Italy and Mongolia.

The deadline for civil society submissions in respect of these countries is 14 January 2019.

*NOTE: Sénégal may be added to the pre-session countries. Also, Italy may be moved to a later pre-session. Please check the Committee’s website for these changes.

Yemen and Sénégal are now the only States listed for ‘future sessions’ and it is not expected that the review of Yemen will proceed soon given the on-going conflict in that country. It is concerning that there are not other States listed for future sessions as this suggests that the Committee has not received State reports from many other States, despite the fact that many State reports are due or overdue.

From 24 September - 12 October 2018, the Committee on Economic, Social and Cultural Rights (CESCR) held its 64th session in Geneva.

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• Geneva Updates

ESC Rights Update from Geneva: 39th session of the UN Human Rights Council (September 2018)

 

This Update provides a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 39th session of the Human Rights Council (September 2018). It provides information on the following ESC rights initiatives:

• Rights to water and sanitation

• Right to health

• Hazardous waste

• Right to Development

• SDGs, development and human rights

• ESC rights addressed in country situations - Venezuela

• Rights of peasants

• Other initiatives of interest (gender, indigenous peoples, older persons, slavery)

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The new UN High Commissioner for Human Rights

New UN High Commissioner for Human Rights, Michelle Bachelet, made her first appearance before the Human Rights Council as High Commissioner. In her opening remarks, High Commissioner Bachelet promoted multilateralism and consensus within the Council. She also spoke of the importance of sustainable development, mentioning several times the 2030 Agenda which she sees as a ‘tremendous opportunity for greater integration of human rights goals, including the recommendations of the human rights mechanisms, into national policies and the work of the UN’. Whilst not affording significant attention to ESC rights, she did emphasise the indivisibility of human rights, saying for instance: ‘Access to the best quality education, and to economic and social rights, helps diminish despair, mistrust and violent extremism’. The High Commissioner also referred to the need to protect rights from and mitigate the effects of climate change.

In relation to country situations, she also highlighted the links between conflict and economic and social rights, emphasising the violations of social and economic rights in Venezuela and longstanding social and economic grievances as root causes of the situation in Iraq.

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Right to water and sanitation

The annual report of the Special Rapporteur on the human rights to safe drinking water and sanitation, Mr Léo Heller, was presented at this session (A/HRC/39/55), together with the reports of his missions to India (A/HRC/39/55/Add.1) and Mongolia (A/HRC/39/55/Add.2).

The Report of the Special Rapporteur focuses on the right of access to water and sanitation for forcibly displaced persons. It begins by exploring the categories of displaced persons such as those displaced because of persecution, armed conflict, violence, human rights violations, extreme poverty, discrimination, climatic change or forced evictions. The report emphasises the fact that such groups include cross border displacements as well as internally displaced persons (IDPs).

The Special Rapporteur premises his analysis on the normative content of human rights which include, accessibility, quality, affordability, availability, acceptability, privacy and dignity, as well as the general human rights principles of participation, equality and non-discrimination, sustainability, progressive realisation and access to remedies.

The report considers first persons en route, in transit, at reception and at the destination, whom he notes ‘are vulnerable, because they require access to water and sanitation immediately and continuously in unfamiliar places’. The report notes that 130,000 people died between 2011 and 2017 en route through the Sahara to Europe due to lack of food and water. Under International law, refugees and displaced persons should be subject to the same treatment as nationals, but this is frequently not the case.

The Special Rapporteur underlines that limited resources should never be a justification for failure to apply non-discrimination especially in the case of developed States. Further, he insists ‘States, particularly economically developed States, have no justification for providing forcibly displaced persons with substandard water and sanitation services or for using poor living conditions as a means to discourage them from entering the territory or to expel them’.

On emergency situations, the Special Rapporteur considers those who are in camps and those who are outside camps. In camps, the standard of services provided depends on the resources available and humanitarian actors normally prioritise ‘life-saving’ efforts. In addition, many States apply the ‘Sphere standards’ which are a set of voluntary minimum standards applicable in humanitarian responses. However, it is noted that most States narrowly construe the meaning of ‘lifesaving situations’ which negatively limits access to water and sanitation for refugees.

The report notes that more refugees and internally displaced persons live outside camps yet most assistance flows to camps. A 2011 World Bank and UNHCR report states that lack of access to water is the fifth most severe problem faced by refugees outside of camps. The Report however concedes that providing humanitarian assistance outside camps is problematic and more research is needed on how to extend such support.

In the case of protracted displacement, humanitarian assistance must be coupled with development assistance and should go beyond offering support only to the refugees or IDPs, and extend to the entire community. The Special Rapporteur considers the ‘humanitarian-development nexus’ and the difficulties that arise when there are parallel interventions from the development and humanitarian sectors, which have different objectives and approaches. He identifies the human rights principles that are vital to the humanitarian-development nexus: ‘sustainability, participation, equality and non-discrimination and progressive realization’. He also underlines the importance of building resilience and emergency preparedness by taking steps to realise the rights to water and sanitation, including establishing mechanisms for participation, access to information, remedy and accountability.

The recommendations of the Special Rapporteur include: building resilience by empowering communities at risk of disaster; development of an international multi-year program to provide water and sanitation in emergency situations; prioritising the needs of those at most risk; and States should put in place a non-discriminatory, human rights-based framework to provide water and sanitation before, during and after emergencies, armed conflict or disaster.

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Resolution

The Council’s annual resolution on the rights to water and sanitation (A/HRC/RES/39/8) was adopted after a vote that passed easily with only 1 State voting against (Kyrgyzstan) and 2 abstaining (Afghanistan and Ethiopia).

The resolution welcomes the report of the Special Rapporteur, on the human rights to water and sanitation of forcibly displaced persons, but it does not take up that theme for the subject of the resolution.

It contains new wording on menstrual hygiene:

• ‘address the widespread stigma and shame surrounding menstruation and menstrual hygiene by ensuring access to factual information thereon, addressing the negative social norms around the issue and ensuring universal access to hygienic products and gender-sensitive facilities, including disposal options for menstrual products.’

The Council calls on States to:

• implement the SDGs including Goal 6, in accordance with international law and to continuously monitor and regularly analyse the status of realisation of these rights;

• ensure the progressive realisation of the human rights to safe drinking water and sanitation for all in a non-discriminatory manner while eliminating inequalities in access;

• promote both women’s leadership and their full, effective and equal participation in decision-making on water and sanitation management, to ensure that a gender-based approach is adopted in relation to water and sanitation programmes;

• make efforts to mitigate the disproportionate impact of water-, sanitation- and hygiene-related diseases on children; and

• provide effective accountability mechanisms to ensure that all water and sanitation service providers, including private sector providers, respect human rights.

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Right to health

Human Rights Council resolution A/HRC/RES/36/13 called on the High Commissioner for Human Rights to organise a consultation on the fulfilment of human rights in the context of mental health. The consultation was held on the 14th and 15th of May 2018 and brought together member States, UN agencies, special procedures and civil society, including persons using mental health services, persons with mental health conditions and persons with psychosocial disabilities, and their representative organisations. The report of that meeting (A/HRC/39/36) was submitted to the Council at the 39th session.

The consultation evaluated the status of human rights for persons with mental and psycho-social disabilities. Amongst the notable concerns raised were discrimination, stigmatisation, over-medicalisation and the use of force. It was noted that forced treatment, medication and institutionalisation continue to be prevalent. Some participants expressed concern that the Council of Europe’s proposed Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (the Oviedo Convention) would legitimise involuntary treatment of persons with psycho-social disabilities, in violation of the Convention on the Rights of Persons with Disabilities (CPRD).

Participants noted that persons with disabilities in both the Global North and South continue to face barriers in accessing housing, employment, social protection and political participation. They also highlighted that stereotypes and discrimination within the workplace due to lack of awareness on the part of employers and recruiters, remained high for persons with mental and psycho-social disabilities.

Participants were pleased that resolution 36/13 moves away from the perpetuation of violations through arbitrary institutionalisation, exclusion and segregation and towards a human rights-based approach. A human rights-based approach emphasises supportive and enabling environments at home, at school, in the workplace and in health-care settings, which address the underlying determinants of health, such as poverty, discrimination, social exclusion and violence.

Despite this progress, the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, noted that coercion and exclusion remained the rule in the majority of mental health systems, particularly in developed countries, and that involuntary interventions, such as electroconvulsive therapies, psychosurgery, forced sterilisation and other invasive, painful and irreversible treatments, continued to be permitted, contrary to the CRPD. She said this kind of behaviour amounts to torture and ill-treatment which is prohibited by the UN Convention against Torture (UNCAT). UNICEF said that its research revealed that mental health problems were many times a result of mistreatment, emotional neglect and seclusion of children.

Participants concluded that there could be no realisation of Agenda 2030 without addressing mental health and that mental health without human rights amounted to oppression. They recommended better political and economic commitment from States in achieving a rights-based approach to mental health. In so doing, States should re-examine the biomedical approach to mental health and ensure that all care and health services are based on free and informed consent without coercion.

They also recommended that community-based, participatory, and culturally respectful mental health care approaches are adopted to encourage people to receive support as close to home as possible. States should invest in data collection and research on mental health and adopt legislation that is human rights-based and conforms with Article 12 of the CRPD.

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Hazardous Waste

The report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, to the 39th session of the Human Rights Council addresses the situation of workers affected by occupational exposure to toxic and hazardous substances (A/HRC/39/48). The Rapporteur also presented his mission reports on Sierra Leone (A/HRC/39/48/Add.1) and Denmark and Greenland (A/HRC/39/48/Add.2).

The report commences by outlining the human rights relevant to the issue, such as the right to safe and healthy working conditions (articles 6 & 12 ICESCR and ILO protections), rights to information, participation and association (ICCPR articles 19, 22, 25) and the right to an effective remedy. It also considers how particular groups are at heightened risk, like children, women and workers with disabilities.

Amongst the most notable impacts of poor waste management according to the report, is the number of annual deaths from unsafe and unhealthy exposure of workers to hazardous substances which stands at approximately 2,780,000 people. In addition there are an estimated 160 million cases of occupational diseases per year, 70% of which are preventable cancers.

The report notes twelve broad challenges to the protection of workers from exposure to toxic waste and hazardous substances, including inadequate standards of protection, monitoring and enforcement gaps and exploitation of those most at risk. The report found that the poor, women, children and migrant workers are at higher risk of exploitation and exposure to hazardous substances at work. Related to this is the challenge of opaque supply chains and transfer of hazardous work to less developed States where environmental protections are low. These two challenges are discussed in the report on Denmark which notes the failure to hold Danish corporations accountable for their actions in States with less robust worker’s and environmental protections. Another challenge that stands out and keeps recurring is the failure to protect the right to information for workers. The report notes that without this right, workers cannot protect themselves against exposure to hazardous substances, nor access justice and remedies.

In conclusion the Special Rapporteur states:
The exposure of workers to toxic substances can and should be considered a form of exploitation and is a global challenge, with countries of all levels of development playing a role in the problem. States, business actors and international organisations can eliminate or minimise exposures and must do so with urgency. 

He proposes ‘Principles on duties and responsibilities to prevent exposure’ intended to help States, businesses and other key actors respect and protect workers from toxic occupational exposures and to provide remedies for violations of their rights. The principles are grounded in international human rights law and build upon the UN Guiding Principles on Business and Human Rights, ILO instruments and international agreements on toxic chemicals and wastes. They will be further elaborated through a consultative process and presented at a future session of the Human Rights Council.

Importantly, the Principles recognise the responsibility of the State and business enterprises to protect consumers and workers, throughout the entire supply chain, from exposure to hazardous substances. The Principles also call for the promotion of civil and political rights like rights to information, association and assembly, as essential to the protection of workers. Finally, the report is unequivocal in its call to States to assert a cross border mandate in a bid to protect workers worldwide from exposure to hazardous substances.

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Right to development

At this session, the Special Rapporteur on the right to development, Mr Saad Alfarargi, presented his report on equality and the right to development, including how this links to the equality goals and targets of the Sustainable Development Agenda (A/HRC/39/51).

Mr Alfarargi has not undertaken any country missions since he commenced his mandate activities in March 2017.  He has instead carried out 2 regional consultations (Africa and Europe), pursuant to the request of the Human Rights Council contained in resolution 36/9. The consultations aim ‘to identify good practices in designing and implementing policies and programs to advance human development through the human rights based approach. Looking at local level human development initiatives and experiences would help bring light on context-specific indicators and monitoring methodologies.’ A further regional consultation, for Latin America, will take place in October 2018 in Panama, and for the Asia/Pacific, in Bangkok in December.

The Special Rapporteur will undertake his first country mission to Cabo Verde in November. Civil society organisations are encouraged to get in touch with the mandate to provide information about the right to development in Cabo Verde.

In his report, the Special Rapporteur on the right to development, ‘explores the connection between the right to development and equality, the consequences of inequalities within countries on the enjoyment of the right to development and provides recommendations on contributing to the promotion, protection and fulfilment of the right to development in the context of the implementation of the equality related goals and targets of the 2030 Agenda for Sustainable Development’.

The report contains an interesting discussion on income inequality. In considering why income inequality matters, the Special Rapporteur surveys a large body of empirical evidence showing that inequality exacerbates poverty and negatively impacts the enjoyment of ESC rights and civil and political rights. The Special Rapporteur is concerned that inequality is a major obstacle to the right to development as it ‘threatens long-term social and economic development and impedes poverty reduction. …. and has an impact on the ability of individuals and communities to participate in, contribute to and enjoy economic, social, cultural and political development.’ He emphasises the right to participation and the importance of access to information, which he notes ‘will also help in designing, implementing, monitoring and evaluating the results of development programmes and projects in a meaningful way and increasing their effectiveness and efficiency’ and will lead to greater accountability.

The report goes on to note initiatives by governments in the context of the SDGs that promote equality and in particular highlighting initiatives that took participatory approaches and focused on consultation and inclusion.

In his recommendations, the Special Rapporteur notes the urgent need for disaggregated data in order to make inequalities visible and enable the identification of who is being left behind. Such data is also crucial for targeted, evidence-based policy making and for monitoring, evaluation and progress tracking. He stressed the importance of taking a human rights-based approach to data collection. He also recommended States enhance participation and consultation in policy making, including through budgeting for civil society participation and ensuring access to information.

In addition, the Secretary-General and the High Commissioner for Human Rights presented their annual report on the activities of the OHCHR on the promotion and realisation of the right to development (A/HRC/39/18), covering the period from June 2017 to May 2018. The report also provides an analysis of the implementation of the right to development, taking into account existing challenges and making recommendations on how to overcome them. It considers the inter-State dimension of Sustainable Development Goal 10, the need to reduce inequality among countries, and how it links with the right to development and to the other Sustainable Development Goals, in particular Goal 17.

After analysing the application of the human rights treaties and the Declaration on the right to Development, to the issue of inequality between countries, it finds that international law provides a useful normative framework for addressing this issue, particularly the principles of self-determination and international cooperation (under ICESCR).

The report goes on to make a number of recommendations to address inequality between countries, including:

• Promote and maintain the policy space of developing countries to ensure that the management of their natural resources contributes to the realisation of the right to development and sustainable development;

• Undertake human rights impact assessments in relation to structural adjustments, austerity measures and other prescriptions for economic reform; and

• Encourage sovereign debt relief initiatives that benefit developing countries and cooperation to counter vulture funds that disrupt the capacity of States to negotiate debt restructuring.

The Council also had before it the report of the Intergovernmental Working Group on the Right to Development on its nineteenth session which was held in Geneva from 23 to 26 April 2018 (A/HRC/39/56).

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Resolution

The Council adopted its annual resolution on the right to development (A/HRC/RES/39/9) and tasked the Intergovernmental Working Group on the right to development, with commencing ‘the discussion to elaborate a draft legally binding instrument on the right to development through a collaborative process of engagement, including on the content and scope of the future instrument’. The Chair of the Working Group was asked to prepare a draft legally binding instrument, ‘to serve as a basis for substantive negotiations on a draft legally binding instrument, commencing at its twenty-first session’.

This is a significant step forward for this Working Group which was established by a resolution of the Economic and Social Council in 1998 and held its first session in 2000. The Working Group has had a controversial history and reached a ‘political impasse’ which has stalled its work developing ‘operational criteria and sub-criteria’.

This resolution mandating work towards a legally binding treaty was voted on, attracting 30 votes for, 12 against and 5 abstentions. As in previous years, broadly speaking, States from the Global South supported the resolution and States from the Global North did not.

With the Council delivering the Working Group a solid mandate to move forward on the negotiation of a legally binding instrument on the right to development, it will be interesting to see whether the political impasse is resolved. The first challenge will be for the Chair to present a credible draft instrument for discussion.

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SDGs, Development and Human Rights

It is becoming increasingly common for reports, resolutions and panel discussions of the Human Rights Council to address the link between human rights and the SDGs and this continued to be the case for the 39th session of the Human Rights Council.

Initiatives relating to the SDGs included: a summary report of an inter-sessional expert meeting on gender equality, women's rights and the 2030 Agenda; a resolution on local government, human rights and the SDGs; the half day discussion on the rights of indigenous peoples and the resolution on the same topic; and the report of the Independent Expert on the enjoyment of all human rights by older persons.

An intersessional expert meeting to consider gaps in, challenges to and best practices aimed at the full enjoyment of human rights by all women and girls and the systematic mainstreaming of a gender perspective into the implementation of the 2030 Agenda for Sustainable Development, was held in May 2018, pursuant to the mandate in Council resolution A/HRC/RES/36/8. The High Commissioner for Human Rights submitted a summary report of that expert meeting to the 39th session (A/HRC/39/34).

The discussion commenced with an analysis of the linkages between the three dimensions — economic, social and environmental — of the 2030 Agenda through the lenses of gender equality and women’s rights. Experts discussed: the role of women in agricultural productivity; the importance of having a strong focus on gender equality in harnessing the demographic dividend in the implementation of the 2030 Agenda; the contribution of indigenous women to the sustainable development of their peoples and the planet; and integrating a gender perspective and women’s rights in responses to climate change.

The expert meeting participants emphasised that women and girls are not a homogeneous group and it is important to focus on women and girls who are most marginalised owing to the intersecting forms of discrimination they face. Likewise, it was recognised that human beings were composed of a wide spectrum of gender identities, and thus the scope of gender equality should be understood to cover equality not only for heterosexual women and men, but also for lesbian, gay, bisexual, transgender, intersex and other non-binary persons.

Another significant theme of the expert meeting was how to capture diversity and intersectionality, to ensure no one is left behind? The importance of collecting disaggregated data was underscored and the barriers to doing so were noted. The discussion then moved to monitoring progress on gender equality and women’s rights and considered mechanisms for monitoring the implementation of the SDGs and the role of the international human rights mechanisms. The experts emphasised that the regular review processes of the human rights mechanisms were well informed by inputs from States, civil society organisations, national human rights institutions and other actors, and that the recommendations generated from their country reviews could complement the review processes for the 2030 Agenda.

The report concluded with recommendations for States, UN agencies and other stakeholders.

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ESC Rights in country situations

At this session, for the first time, the Human Rights Council adopted a resolution on the human rights situation in Venezuela under item number 2 (A/HRC/RES/39/1). As well as addressing the alarming violations of civil and political rights in Venezuela, it also highlighted the devastating violations of economic and social rights.

For instance, the resolution:
Calls upon the Government of the Bolivarian Republic of Venezuela to accept humanitarian assistance in order to address the scarcity of food, medicine and medical supplies, the rise of malnutrition, especially among children, and the outbreak of diseases that had been previously eradicated or kept under control in South America.
 
The resolution ‘welcomes’ the report of the OHCHR entitled “Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight”, published in June 2018. That report details serious violations of the rights to food and health in Venezuela. On health, the OHCHR documented the collapse of the Venezuelan health care system due to the State authorities’ ineffective measures or inaction to address the acute deterioration of health care facilities and equipment, the unavailability of medicines, in particular for patients with chronic diseases, and the outbreak of diseases that had been eradicated. There was also anecdotal evidence of medical equipment and medicine shortages and unsanitary facilities, leading to preventable deaths.

On the right to food, the report noted: ‘State control over food prices and foreign currency exchange, the mismanagement of confiscated arable land, State monopoly on agricultural supplies, and the implementation of social programmes without clear nutritional objectives, has resulted in critical levels of food unavailability and a situation where large segments of the population cannot afford to buy food at market price.’

In the resolution the Council requests the High Commissioner to prepare a comprehensive written report on the human rights situation in Venezuela and to present it to the Council at its forty-first session (March 2019), to be followed by an enhanced interactive dialogue, and to present an oral update on the human rights situation, to the Council at its fortieth and forty-second sessions.

Whilst not the first time that the Council has addressed economic and social rights issues in relation to specific country situations, this has not been a common practice in the past. However, this is becoming more common, and the analysis of economic and social rights issues in such reports is becoming more detailed and sophisticated.

The resolution on Myanmar adopted at this session (A/HRC/RES/39/2), urged the government of Myanmar to reverse policies that economically marginalise the Rohingya and other minorities and to ensure displaced Rohingya Muslims and other minorities in Rakhine State do not lose their rights to their homes and properties. Such policies are identified as ‘root causes of their vulnerability and forced displacement’ and the Council requests the High Commissioner for Human Rights to prepare a report on the root causes. It is expected that this report will consider economic and social rights violations connected to the human rights abuses against the Rohingya Muslims.

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Rights of peasants

After 5 years of negotiation by the Intergovernmental Working Group on the rights of peasants (see their latest report - (A/HRC/39/67)), the Human Rights Council adopted the UN Declaration on the rights of peasants and other people working in rural areas (A/HRC/RES/39/12). 33 member States of the Human Rights Council voted in favour of the resolution, 3 voted against it and 11 States abstained. The text of the Declaration is annexed to the resolution.

The Declaration applies to a wide variety of people. Article 1 of the Declaration helpfully defines what is meant by ‘peasants’: ‘any person who engages or who seeks to engage alone, or in association with others or as a community, in small-scale agricultural production for subsistence and/or for the market, and who relies significantly, though not necessarily exclusively, on family or household labour and other non-monetized ways of organizing labour, and who has a special dependency on and attachment to the land.’ However, Article 1 continues to say the Declaration also applies to indigenous peoples, local communities working on the land, hired workers and migrant workers (amongst others).

The text elaborates on rights that are guaranteed by international human rights treaties (eg: ICESCR & ICCPR) and the specific aspects of those rights that are particularly relevant for peasants. In addition, it appears to assert new rights, not contained in the international human rights treaties, such as article 19 of the Declaration, which proclaims that peasants and other people working in rural areas have ‘the right to land’ and ‘the right to seeds’. Article 18 declares the right of peasants ‘to the conservation and protection of the environment and the productive capacity of their lands’. Although access to land and seeds have been addressed in the context of various rights under the ICESCR, such as the right to adequate housing, the right to water and the right to food, the right to land and to seeds are not rights specifically protected by the ICESCR.

Another interesting provision is Article 16 (4) which says ‘States shall take all appropriate measures to ensure that their rural development, agricultural, environmental, trade and investment policies and programmes contribute effectively to protecting and strengthening local livelihood options and to the transition to sustainable modes of agricultural production. States shall stimulate sustainable production, including agroecological and organic production, whenever possible, and facilitate direct farmer-to-consumer sales.’

Whilst declarations are considered soft law instruments which are non-binding in nature, sometimes provisions of declarations solidify into binding international law through usage and State practice. The Human Rights Council resolution adopting the Declaration, also recommends that the General Assembly also adopt the Declaration. It is expected that States will push for the adoption by the General Assembly before the end of this year. It will be interesting then to see how this Declaration will be applied and utilised.

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Other Initiatives of Interest

Gender

The Council held its annual panel discussion on the integration of a gender perspective into the work of the Council. The theme was ‘Gender integration and human rights investigations: strengthening a victim-centred approach’. The panel heard from the UN Women expert on transitional justice, the former Gender Adviser at the African Union Commission of Inquiry on South Sudan, the Women’s International League for Peace and Freedom and the Chair of the Independent International Commission of Inquiry on Syria. It discussed good practices and challenges in integrating a gender perspective into the work of Commissions of Inquiries, Fact-finding Missions and investigative bodies.

Indigenous peoples

The Council held its annual half day discussion on the rights of indigenous peoples, focusing this year on ‘Participation and inclusion of indigenous peoples in the development and implementation of strategies and projects in the context of the 2030 Agenda for Sustainable Development’. The panel was moderated by the Chair-Rapporteur of the Expert Mechanism on the rights of indigenous peoples and heard from the Co-convenor of the Indigenous Peoples Major Group for Sustainable Development, the Co-chair of the Global Indigenous Youth Caucus and the Director of the United Nations Development Programme Geneva office. A summary report of the discussion will be presented at the June 2019 Council session.

The Special Rapporteur on the rights of indigenous peoples presented her annual report to the Council (A/HRC/39/17) addressing attacks against, and the criminalisation of indigenous human rights defenders and reflecting on available prevention and protection measures.

The report notes that intense competition for natural resources by private actors, with the complicity of governments, has been the root cause of criminalisation and attacks on the rights of indigenous peoples. Commonly, business activities violate the rights to land and livelihood for indigenous peoples. The report recommends that: States set up robust mechanisms to impartially investigate attacks and violations of the rights of indigenous persons; States enact legislation and policies that protect indigenous groups and recognise collective land rights; private actors undertake human rights due diligence on all prospective projects; social and environmental safeguards be promoted by all national and international funders and development agencies; and that the international community continues to promptly monitor adherence to human rights for indigenous persons.

The High Commissioner for Human Rights also presented a report on the rights of indigenous peoples (A/HRC/39/37). The report notes that the rights of indigenous people remain far from realised due in part to the shrinking democratic space that curtails their involvement in society.

Indigenous peoples continue to be victims of land grabbing, have limited access to justice and lack the capacity to adapt to the immediate effects of climate change. Their social and cultural rights are affected by racial discrimination in education, cultural practices and access to health services. The report recommends governments pass national action plans that promote the collection of data on indigenous peoples, promote their access and participation in national and UN human rights agencies and limit the abuse of their rights by the State and private actors.

In addition, the Council adopted its annual resolution on the rights of indigenous peoples(A/HRC/RES/39/13). The resolution sets the topics for the next two annual half day discussions on the rights of indigenous peoples. For the 42nd session (September 2019) the theme will be the promotion and preservation of indigenous languages. For the 45th session (September 2020) the theme will be the protection of indigenous human rights defenders.

The resolution also mandates a half-day intersessional interactive dialogue on ways to enhance the participation of indigenous peoples’ representatives and institutions in meetings of the Human Rights Council on issues affecting them. The dialogue will be held on the first day of the twelfth session of the Expert Mechanism and the President of the General Assembly should be invited to participate. The report of the dialogue should be presented to the Council and to the General Assembly.

States are encouraged to give due consideration to the rights of indigenous peoples and the discrimination faced by then, in the context of the implementation of the SDGs. Further, the resolution welcomes the agreed conclusions adopted by the Commission on the Status of Women at its sixty-first session, which called for measures to be taken to promote the economic empowerment of indigenous women. It also encourages States to work with indigenous peoples to strengthen technologies, practices and efforts related to addressing and responding to climate change.

The resolution encourages States and stakeholders to participate actively in the International Year of Indigenous Languages and to ‘uphold the spirit of the Year by taking measures to draw attention to the critical loss of indigenous languages and the need to preserve, revitalise and promote them.’

The Council acknowledges the OHCHR report mentioned above and requests the OHCHR to continue to submit an annual report on the rights of indigenous peoples. It also takes note of the work of the Special Rapporteur on the rights of indigenous peoples.

Finally, the resolution also welcomes the work of the Expert Mechanism on the Rights of Indigenous Peoples, and its annual report (A/HRC/39/62), which this year addressed the issue of the free, prior and informed consent of indigenous peoples.

Slavery

The Special Rapporteur on contemporary forms of slavery, including its causes and consequences, submitted her annual report to the Council (A/HRC/39/52), focusing on the impact of slavery and servitude on marginalised migrant women workers in the global domestic economy. She also presented her mission report on Paraguay (A/HRC/39/52/Add.1).

The report notes the exploitation and marginalisation of women domestic workers, which it observes is largely by private actors. Due to the weak regulation of private recruitment agencies, it is difficult for the States from which these migrant workers originate to protect them from slavery, servitude and exploitation. The report recommends that States: ratify the ILO Domestic Workers Convention 2011; enact criminal legislation prohibiting slavery, servitude and forced labour; promote access to health care including sexual and reproductive services for women; promote social protection; regulate and monitor private employers and recruitment agencies; carry out sensitisation on the threat of slavery and servitude.

Local government and human rights

A resolution on local government and human rights addressing the issue of local government, human rights and the SDGs, was adopted by the Council by consensus (HRC/RES/39/7). The resolution picked up on the conclusions of an intersessional panel discussion (mandated by resolution A/HRC/RES/33/8) in Geneva on identifying ways in which local governments could promote, protect and fulfil human rights effectively, particularly in the context of implementing the 2030 Agenda for Sustainable Development, in close cooperation with national Governments. The summary report of that panel discussion was submitted to the Council at this session (A/HRC/39/22).

The resolution underscores the significant contribution that local government can make to the implementation of the SDGs and their targets. It encourages the interaction and exchange of knowledge between local government and local stakeholders, in the formulation and implementation of local government programmes, aimed at achieving the SDGs through the promotion of a human rights culture within public services. It also encourages local governments to ensure the participation of local stakeholders in local government activities and in public affairs.

Finally, it requests the OHCHR to prepare a report for presentation to the September 2019 session, on ‘effective methods to foster cooperation between local government and local stakeholders for the effective promotion and protection of human rights at their level through local government programmes, including raising awareness of the Sustainable Development Goals, and to indicate the major challenges and best practices in this regard.’

Older persons

The Independent Expert on the enjoyment of all human rights by older persons, Ms Rosa Kornfeld-Matte, submitted her thematic report to the Council (A/HRC/39/50). The report considers the impact of the social exclusion of older persons. It provides an overview of the global policy framework and analyses social exclusion concepts, their various manifestations and the impact on the human rights of older persons.

The Independent Expert notes that the exclusion of older persons and violation of their rights is a result of societal failure to acknowledge their contributions and utilise their potential. The report further emphasises the fact that the failure to promote the rights of older persons will lead to a failure to realise Agenda 2030. The exclusion of older persons is manifest in the failure to secure rights to adequate housing especially in urban areas, social protection, decent work, health services and independent living.

The Independent Expert’s recommendations include: the normative framework of the SDGs should include inclusiveness for older persons; a human rights approach to aging; States should ensure support for older persons in social protection, housing, poverty reduction and the equitable distribution of resources.

The next session of the Human Rights Council will be the 40th session and will be held from 25 February - 22 March 2019.

• Geneva Updates

ESC Rights Update from Geneva: 38th session of the UN Human Rights Council (June 2018)

 

18 June to 6 July 2018

This Update provides a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 38th session of the Human Rights Council (June 2018).
It provides information about:

• Right to education

• Right to health

• Extreme poverty and human rights

• Women’s economic, social and cultural rights

• Business and human rights

• Environment, climate change and human rights

Other initiatives of interest

 

Right to education

The Special Rapporteur on the right to education, Dr. Koumbou Boly Barry, presented her annual report(A/HRC/38/32) to the Human Rights Council at this session. The report considers how the right to education, and the commitments made in the Sustainable Development Goals, provide guidance for national education governance systems.

In the report, the Special Rapporteur urges States to ground their governance systems in human rights norms and values, such as participation, transparency (access to information) and accountability, as this will ensure that education is provided in an equitable, high quality way for all, without discrimination. It will also ensure that States avoid education priorities being captured by powerful elites and the needs of the most disadvantaged being ignored.

The Special Rapporteur reiterates the importance of the ‘4 As Framework’ in the context of education governance: available, accessible, acceptable and adaptable. She also discusses the human rights benefits and challenges of the decentralisation of education governance and the need for data collection (including qualitative data arising from consultations and participatory engagements) and monitoring to ensure accountability. The importance of effective accountability mechanisms at every level of the education system and for the right to education to be made justiciable in national legislation, are also emphasised.

She also addresses issues of international solidarity (international cooperation) and privatisation in education. Finally, the Special Rapporteur underlines the importance of human rights education, training and capacity building for those working in education governance.

Resolution

The Council adopted by consensus a resolution (A/HRC/RES/38/9) entitled ‘The right to education: follow-up to Human Rights Council resolution 8/4’. The resolution urges States to give full effect to the right to education, including by:

• Reviewing national governance systems for consistency with the right to education;

• Applying the principles of transparency, accountability and non-discrimination and promoting inclusive participation, in education governance and management structures;

• Developing national monitoring and evaluation systems to inform education policies, including through collection of disaggregated data.

States are also urged to ‘expand educational opportunities for all without discrimination, including by implementing special programmes to address inequalities, including barriers to accessibility and discrimination against women and girls in education, recognizing the significant importance of investment in public education’.

Finally, the resolution addresses issues such as the regulation and monitoring of education providers, support for activities to better understand the wide-ranging impact of the commercialization of education, the promotion of technical vocational education and training, measures to address violence in schools and initiatives to measure progress in the realization of the right to education, such as by developing national indicators.

 

Right to health

The Council considered the report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on the topic ‘the relationship between the right to health and specific forms of deprivation of liberty and confinement in penal and medical regimes’ (A/HRC/38/36).

The Special Rapporteur’s report finds that detention and confinement remain the policy tool preferred by States to promote public safety, ‘morals’ and public health, doing more harm than good to public health and the realization of the right to physical and mental health. The Special Rapporteur calls for the full implementation of the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and for the development of supportive community-based services as alternatives to detention and confinement in various cases.

The Special Rapporteur also presented his mission reports on Indonesia (A/HRC/38/36/Add.2) and Armenia(A/HRC/38/36/Add.1).

The High Commissioner for Human Rights also submitted to the Council a report on ‘Contributions of the right to health framework to the effective implementation and achievement of the health-related Sustainable Development Goals’ (A/HRC/38/37). The report was submitted pursuant to a request by the Council (resolution 35/23) to prepare a report on this topic.

The report discusses the right to health framework and identifies the key health related SDGs. It describes an implementation gap: ‘noting that while the fundamental principles and the main processes and mechanisms of the right to health are well identified, there still remains a significant gap between the formulation of health policies and their effective implementation in everyday practice’. It asserts that ‘Strong and committed leadership, including at the highest levels, is indispensable if effect is to be given to the changes necessary to integrate human rights into public health on a sustainable basis.’

The report considers how to operationalise the SDGs pledge to leave no one behind, noting that it effectively mirrors the human rights principle of equality and non- discrimination, and focuses on women’s rights, neglected health concerns and universal health coverage. In addressing women and girls, the report states:

‘the denial of the health and health-related rights of women and girls remains widespread, as a result of discrimination, exclusion and traditional, cultural, social and other norms and practices that place women and girls in positions of inferiority or subordination in the home, the community, the workplace and broader society.’

The report then looks at the neglect of mental health and the stigma and discrimination experienced by persons with mental health conditions. It points to data and research gaps and low financial and human resources allocated to mental health as symptomatic of the problem and explains that persons with mental health conditions are therefore amongst those left furthest behind in most countries.

On universal health coverage, the report notes that the concept is not defined in the SDGs and that the right to health framework can provide valuable guidance and standards to understand the concept. This is important because not all versions of universal health coverage are consistent with human rights standards, for example there is a risk of entrenching inequalities where governments prioritize the expansion of coverage to privileged groups via the private sector.

A human rights-based approach to universal health coverage ‘requires that availability, accessibility, acceptability and quality be ensured, and that persons in vulnerable situations … be prioritized’. It also insists on participation of stakeholders in the design of policies, appropriate health resource allocation, measures to ensure equal access to health care and services, including where provided by third parties and measures to implement the right to social security, including the implementation of social protection floors, as part of measures to ensure financial risk protection.

Finally the report discusses the importance of accountability and participation and describes some emerging right to health good practices.

Resolution

A resolution on human rights in the context of HIV and AIDS (A/HRC/RES/38/8) was presented to the Council by Brazil, Colombia, Mozambique, Portugal and Thailand and adopted by consensus.

The resolution requests the High Commissioner for Human Rights to organize a 1.5 day consultation, in the first half of 2019, in coordination with the Joint United Nations Programme on HIV/AIDS, ‘to discuss all relevant issues and challenges pertaining to respect for and the protection and fulfilment of human rights in the context of the response to HIV, with a focus on regional and subregional strategies and best practices’.

 

 Extreme poverty and human rights

Mr Philip Alston, the Special Rapporteur on extreme poverty and human rights presented to the Council his thematic report on the International Monetary Fund and social protection (A/HRC/38/33) and country mission reports on the United States (A/HRC/38/33/Add.1) and Ghana (A/HRC/38/33/Add.2).

The thematic report traced the history of the IMF’s impact on social protection in low-income developing countries and lower middle-income countries. Through the period of ‘structural adjustment programmes’, critique of its neglect of ‘social issues’ leading to the development of an ‘augmented Washington consensus’ characterised by an emphasis on social safety nets and ‘pro-poor growth’, then its recession after the Asian financial crisis and finally its resurgence to the centre of international economic governance after the global financial crisis of 2007/8.

The Special Rapporteur describes the IMF’s ‘aversion’ to human rights and its stated legal position that it is not bound by international human rights treaty law. He explains that, the IMF has accepted that there are some elements of social protection that it is mandated to address.

In 2017 the IMF announced a process to develop an internal strategy on social protection, including a definition. The Special Rapporteur points out that the most important issue will be the overall philosophy underpinning social protection – will the IMF continue its ‘social safety net’ approach or move to a human rights or social citizenship approach, such as that followed by the ILO, WHO and UN through the ‘Social Protection Floor Initiative’?

He describes the IMF’s approach to social protection as a short-term fix for economic hardship:
‘The interest of IMF is in mitigation, not transformation, and social protection is embraced for largely pragmatic programmatic considerations, rather than for the principled reason that any macroeconomic framework should protect those who cannot protect themselves.’

The IMF tends to oppose universal programmes and preference targeting but as the Special Rapporteur points out, targeting is often divisive and not politically sustainable:
‘The rapid elimination of regressive but universal price subsidies to be replaced by limited social protection programmes for the poorest will garner very little political support from the key political players, thus undermining the political (rather than fiscal) sustainability of such reforms.’

Rapporteur Alston asserts that abrupt and short-term targeting programmes are unlikely to be successful. A rights-respecting, durable social protection system must be developed in consultation and democratic dialogue with civil society and invested-in over the long-term.

The Special Rapporteur recommends greater diversity (gender, cultural and academic) within the IMF’s staff and an underlying ethical framework to guide its work and decision-making so that it is genuinely pro-poor. He also recommends the IMF take a gradual and proactive approach to embedding social protection and engage seriously with the Social Protection Floor Initiative and with external stakeholders like civil society and other UN agencies.

He concludes:

‘To date, IMF has been an organization with a large brain, an unhealthy ego and a tiny conscience. If it takes social protection on board seriously, rather than making a tokenistic commitment to minimal safety nets, it can show that it has actually learned from its past mistakes.’

 

Women’s economic, social and cultural rights

The Council considered the report of the Working Group on Discrimination Against Women in Law and Practice (A/HRC/38/46) which provided a stock-taking of the first six years of the mandate of the Working Group and outlined its vision for the mandate in the coming years. The report highlights the successes, limitations and main challenges faced by the women’s rights movement and strongly calls for substantive equality and the need to counter the rollbacks and attacks on women’s rights.

Against the backdrop of these 2 themes, the Working Group plans to work on the following issues in its thematic reports:

• Women left behind: the causes and consequences of cumulative, multiple and intersecting discrimination against women, with a case study on women deprived of liberty;

• Protecting and realizing women’s rights in the changing world of work (right to work and working conditions);

• Ensuring the prioritization of sexual and reproductive health and rights in situations of crisis and insecurity;

• Realizing the rights of girl children and adolescent girls; and

• A rapidly shifting world: emerging issues and strategies for the realization of women’s rights (broader economic, environmental and social trends such as the climate crisis, rapid environmental degradation, growing inequalities, technological disruption and demographic change).

The Working Group also presented its mission reports on Samoa (A/HRC/38/46/Add.1) and Chad(A/HRC/38/46/Add.2).

The High Commissioner for Human Rights submitted a report on ‘Review of promising practices and lessons learned, existing strategies and United Nations and other initiatives to engage men and boys in promoting and achieving gender equality, in the context of eliminating violence against women’ (A/HRC/38/24).

Resolution

Colombia and Mexico presented their annual resolution on the elimination of all forms of discrimination against women and girls, this time focusing on women’s economic, social and cultural rights(A/HRC/RES/38/1). The resolution was adopted without a vote, after the rejection or withdrawal of 5 amendments brought by Russia and others. The proposed amendments mainly addressed issues of sexual and reproductive health and rights.

The resolution takes notes of the report of the Working Group on Discrimination Against Women in Law and Practice and suggests States take into consideration its recommendations and those of the Special Rapporteur on violence against women. It also calls on States to:

• repeal all laws that exclusively or disproportionately criminalize the actions or behaviour of women and girls, and laws and policies that discriminate against them, based on any grounds, including any custom, tradition or cultural or religious interpretation contrary to the international obligation to eliminate all forms of discrimination against women and girls;

• ‘consider’ reviewing its legislation to ensure compliance with international obligations;

• work towards establishing or strengthening inclusive and gender-responsive social protection systems, including floors, to ensure full access to nationally appropriate social protection for all without discrimination of any kind, and to take measures to progressively achieve higher levels of protection, including by facilitating the transition from informal to formal work;

• promote legislation and policies that facilitate women’s economic development, ensure equal pay for equal work or work of equal value and prohibit all forms of discrimination, including in the workplace and in education, such as discrimination against women and girls based on pregnancy, maternity, marital status, age, race or gender, as well as violence and harassment against them, including sexual harassment and harassment in digital contexts and online spaces;

• modify social and cultural patterns of conduct with a view to preventing and eliminating in the public and private spheres patriarchal and gender stereotypes, negative social norms, attitudes and behaviours, and unequal power relations that view women and girls as subordinate to men and boys and that underlie and perpetuate discrimination and violence against women and girls.

The resolution also addresses issues of:  the feminisation of poverty; women’s participation in the design of poverty eradication and development policies and programmes; the need to recognize, reduce and redistribute women’s and girls’ disproportionate share of unpaid care and domestic work; paid parental leave; transition from the informal to the formal workforce; and equal rights of women and men to natural, economic and productive resources, including land, property and inheritance rights, new technology and financial services and ensure women’s legal capacity and equal rights to conclude contracts.

 

Business and human rights

The Council considered a report of the High Commissioner for Human Rights on the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context (A/HRC/38/20), which was prepared pursuant to the request of the Human Rights Council in its resolution 32/10.

The report confirms that States’ duty to protect against business-related human rights abuses, is required by international human rights law and reflected in the UN Guiding Principles, and ensuring the accountability of business enterprises and access to effective remedy for victims is a crucial part of that duty. The report notes that whilst effective judicial mechanisms are at the core of ensuring access to remedy, administrative, legislative and other non-judicial mechanisms play an essential role in complementing and supplementing them.

Non-judicial mechanisms take many different forms, for example: labour inspectorates; employment tribunals; consumer protection bodies (often tailored to different business sectors); environmental tribunals; privacy and data protection bodies; State ombudsman services; public health and safety bodies; professional standards bodies; and national human rights institutions. They fall into 5 broad categories: Complaint mechanisms; Inspectorates; Ombudsman services; Mediation or conciliation bodies; Arbitration and specialised tribunals. However, the experience of victims suggests that in many cases these mechanisms are not yet fulfilling the role envisaged for them in the Guiding Principles.

The report provides recommendations (via ‘Policy Objectives’) on the steps that States can take to improve the effectiveness of State-based non-judicial mechanisms, at both the systemic and individual levels, emphasizing issues such as policy coherence, legal authority and capacity gaps in responding to cross border cases, transparency and access to information and accessibility for victims.

The report was accompanied by ‘Explanatory Notes to the Final Report’ (A/HRC/38/20/Add.1) and a further report on ‘The relevance of human rights due diligence to determinations of corporate liability’ (A/HRC/38/20/Add.2).

The Working Group on the issue of human rights and transnational corporations and other business enterprises also reported to the Council at this session. In its report regarding the duty of States to protect against human rights abuses by business enterprises to whom they provide support for trade and investment promotion (A/HRC738/48), the Working Group explores how States can incentivize business respect for human rights in their economic or commercial diplomacy, including through withdrawal of trade and investment support in situations where businesses fail to meet their corporate responsibility to respect human rights.

The report explains that when States provide trade finance and advisory services (as service providers, public financiers, insurers and guarantors) to businesses aimed at expanding export opportunities, they can use their leverage to promote a race to the top by setting out clearly the expectation that businesses respect human rights as a precondition for receiving government support for export activities. States can also promote responsible imports by restricting the flow of goods in supply chains that involve serious human rights abuses.

The Working Group report unpacks Principle 4 of the UN Guiding Principles on Business and Human Rights which states that States should take additional steps to protect against human rights abuses by business enterprises that receive substantial support and services from State agencies including, where appropriate, by requiring human rights due diligence. It also references General Comment No. 24 (2017) of the Committee on Economic, Social and Cultural Rights, on ‘State obligations under the International Covenant on Economic, Social and Cultural Rights’.

The Working Group also presented its reports on its missions to Canada (A/HRC/38/48/Add.1) and Peru(A/HRC/38/48/Add.2) and on the sixth session of the Forum on Business and Human Rights (A/HRC738/49).

Resolution

The Council adopted, without a vote, a resolution on ‘Business and human rights: Improving accountability and access to remedy’ (A/HRC/RES/38/13).

The resolution ‘notes with appreciation’ the report of the High Commissioner and welcomes the work of the Working Group on business and human rights, on access to effective remedies. It asks the Working Group to ‘analyse further the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses, and to convene a two-day global consultation on these issues, open to all stakeholders, and to inform the Council by its forty-fourth session as appropriate.’

Finally, it requests the OHCHR to continue its work in this area and ‘to identify and analyse challenges, opportunities, best practices and lessons learned with regard to non-State-based grievance mechanisms that are relevant to the respect by business enterprises for human rights’, to convene two consultations, involving representatives of States and other stakeholders to discuss such issues and to submit a report thereon to the Human Rights Council.

 

Environment, climate change and human rights

In the area of environment, climate change and human rights, the High Commissioner submitted a report on ‘Addressing human rights protection gaps in the context of migration and displacement of persons across international borders resulting from the adverse effects of climate change and supporting the adaptation and mitigation plans of developing countries to bridge the protection gaps’ (A/HRC/38/21), pursuant to the Human Rights Council’s request in resolution A/HRC/RES/35/20. The report discusses the impacts of climate change on human mobility and related human rights risks and then considers the human rights protection gaps for climate change-related cross-border movement and recommendations for closing those gaps.

The report notes that the relationship between climate change and human mobility is complex and difficult to measure. It refers to the figures of the Internal Displacement Monitoring Centre, which estimates that, on average, 21.7 million people were internally displaced each year in the period 2008–2016 by weather-related disasters. Figures are not available for cross-border displacement, nor for displacement caused by slow-onset adverse effects of climate change, such as sea level rise, salinization of groundwater resources, changing precipitation patterns and desertification. The IPCC’s 5th Assessment Report found that climate change would increase future levels of displacement and that populations lacking the resources for planned migration experienced higher exposure to extreme weather events, in particular in developing countries with low incomes.

The report notes that vulnerability to the adverse impacts of climate change, including displacement:

‘can result from multiple and intersecting forms of discrimination, inequality and structural and societal dynamics that lead to diminished and unequal levels of power and enjoyment of rights. The negative impacts of climate change can reduce adaptive capacity and affect a person’s ability to move, the freedom with which they choose to do so, and their vulnerability before, during and after migration. Vulnerability may occur throughout migration and regardless of whether or not movement was “voluntary”. It can be enhanced by restrictive migration and border control policies.’

The report describes the risks faced by persons moving because of climate change and notes that whilst climate change poses unique threats, ‘the risks faced by persons moving because of climate change are similar to those faced by all migrants in vulnerable situations who are unable to have access to safe, affordable and regular migration pathways’.

In discussing the legal and policy human rights protection gaps for persons crossing borders due to climate change, the report considers: the fact that the Refugee Convention would generally not apply to such persons; the absence of human mobility issues in environmental law and policy; and the Global Compacts processes underway. It mentions the Sendai Framework on Disaster Risk Reduction, the IOM’s work and the Nansen Initiative, as examples of policy processes and instruments which address this issue. It then discusses the protection offered by States’ human rights obligations with respect to these people.

The report makes important recommendations, such as:

• Take ambitious action to mitigate climate change to prevent its impacts from worsening and reduce its role as a driver of human mobility;

• Ensure respect, fulfillment, promotion and protection of all human rights for persons crossing borders in the context of climate change and refrain from returning migrants to territories affected by climate change that can no longer sustain them;

• Mobilize all necessary means of implementation for effective climate change mitigation and adaptation measures to address human rights protection gaps for persons adversely affected by climate change;

• Ensure the meaningful, effective and informed participation of all persons, and especially women, in decision-making processes related to climate change and human mobility and adequately inform people about the existing and potential adverse effects of climate change to promote informed decision-making;

• Commit to integrating human rights and human mobility, as well as climate change or the adverse effects of climate change, in relevant national reporting to the UN Framework Convention on Climate Change and to UN human rights mechanisms (eg: UPR); and

• Operationalise the Global Migration Group’s Principles and practical guidance on the human rights protection of migrants in vulnerable situations.

Resolution

The annual resolution on human rights and climate change (A/HRC/RES/38/4) was again presented by the core group of Bangladesh, Vietnam and the Philippines, and adopted by consensus (after oral revisions). The resolution focused on the issue of women’s rights in the context of climate change and identified 2 activities in this regard:

• a panel discussion to be held at the 41st Council session on the theme ‘Women’s rights and climate change: climate action, best practices and lessons learned’; and

an analytical study to be conducted by OHCHR on the integration of a gender-responsive approach into climate action at the local, national, regional and international levels for the full and effective enjoyment of the rights of women.

 

Other initiatives of interest

• Special Procedures Communications report

The report of the Communications procedures of the Special Procedures mandate holders was submitted to the 38th Council session (A/HRC/38/54). The report summarises all communications sent by any of the Special Procedures mandate holders during the period 1 December 2017 and 28 February 2018, and responses received in relation to those communications up to 30 April 2018.

In total 154 communications were sent during this reporting period, to 67 countries and other non-State actors and to which replies were received from 80 countries and other actors. The countries that received the highest numbers of communications (6 each) were Iran, the Philippines, Turkey and the US.

As in previous periods, the civil and political rights-focused mandates sent much higher numbers of communications: 76 by Freedom of opinion and expression; 64 by Human rights defenders; and 47 by Arbitrary detention. Of the ESC rights focused mandates, the highest number of communications was sent by the Special Rapporteur on the right to health (20), followed by the Special Rapporteur on the environment (8) and the right to education mandate (6). The Working Group on business and human rights also sent 13 communications to States and business actors.

• Sustainable development and human rights

The OHCHR submitted its report on ‘Supporting effective and inclusive implementation of the 2030 Agenda for Sustainable Development through effective, coherent and coordinated technical cooperation and capacity-building’ (A/HRC/38/28), pursuant to Human Rights Council resolution A/HRC/RES/36/28.

The report looks at how UN human rights bodies and mechanisms and UN country teams and agencies can, through effective, coherent and coordinated technical assistance and capacity-building in the promotion and protection of human rights, support States in the realization of the 2030 Agenda for Sustainable Development. It provides many examples of UN technical cooperation that are assisting States in achieving the SDGs and consistent with their international human rights commitments.

The report was intended to serve as a basis for the discussions at the Human Rights Council’s annual thematic panel on technical cooperation, at this session, which focused on enhancing human rights technical cooperation and capacity-building to contribute to the effective and inclusive implementation of the 2030 Agenda.

That panel discussion was held on 4 July and aimed to facilitate an exchange of views and sharing of concrete experience on how human rights technical cooperation and capacity-building can contribute to the implementation of the 2030 Agenda. The panel addressed the existing and envisaged roles of UN human rights mechanisms, UN Country Teams and other parts of the UN system, in contributing to the implementation of the 2030 Agenda and identified innovative ways forward. A report of the panel discussion will be presented to the Council at the next session.

 The next session of the Human Rights Council will be the 39th session and will be held from 10 – 28 September 2018.

• Geneva Updates

Right to Social Security in the context of gender and unpaid work upheld by Committee on ESC Rights

 

We are very pleased to that the Committee on Economic, Social and Cultural Rights has released its Views in relation to MCTC v Ecuador, a case dealing with the right to social security in the context of unpaid work and gender discrimination.

The Committee found a violation of Article 9 (right to social security) and Articles 2(2) (prohibition on discrimination) and 3 (equal right of men and women to enjoyment of all economic, social and cultural rights) in conjunction with Article 9.

The Global Initiative for Economic, Social and Cultural Rights worked with colleagues within the ESCR-Net Strategic Litigation Working Group and the Women and ESCR Working Group and sent a third party intervention to the committee in October 2017, providing commentary and recommendations in relation to the following positions:

1. States parties must ensure that existing social security systems are enjoyed without discrimination, including for women who undertake unpaid care work

2. States parties should take positive measures to ensure social security protections for persons unable to access or benefit from existing social security systems, particularly for older women

3. States parties must ensure that existing social security systems facilitate access to information and are subject to due process, including the right to an effective remedy

See the Committee’s press release, which also links to the full decision. The case is currently available in Spanish only.

• Geneva Updates

Drafting Committee of the Human Rights Guiding Principles on private schools is constituted and met for the first time

 

A drafting committee of the Human Rights Guiding Principles on private school, composed of ten human rights experts, was recently constituted and met for the first time in Geneva on 11 June 2018.

Since 2015, various education stakeholders have been working together to facilitate the process for development by experts of human rights Guiding Principles (referred to as “the Guiding Principles” or “GPs”) that will compile and clarify States’ existing obligations as it relates to private actors in education and provide guidance on how to implement the right to education in the context of the rapid expansion of private sector involvement in education.

The Guiding Principles have been developed through an open, transparent, and broadly consultative process with a view to including a variety of perspectives and to reflect different contextual realities. From 2016 to 2018, a series of regional, national, and thematic consultations have been convened around the world. The Secretariat of the Guiding Principles (Amnesty International, Equal Education Law Centre, Global Initiative for Economic, Social and Cultural Rights, Initiative for Social and Economic Rights, and Right to Education Initiative) has synthesized the inputs and feedback from the various consultations as background information for the experts.

A group of experts led by a drafting committee composed of ten human rights experts is now developing a draft text until a final review for adoption in early 2019 by a broader group of experts.

The drafting committee met in June for the first time partly in person in Geneva, to review the current draft and comments from the consultations, and prepare the forthcoming public consultation in July and August 2018.

The drafting committee membership reflects diversity in many respects, including in terms of background, geography, expertise, legal system experience, language, personal views, and gender. The drafting committee members are some of the current best legal experts on the right to education and economic, social and cultural rights worldwide, and include current or former UN and regional human rights bodies’ mandate holders, acting in their individual capacities. The group is chaired by Ann Skelton, who is a member of the UN Committee on the Rights of the Child and the UNESCO Chair in education law in Africa at the University of Pretoria.

The drafting Committee comprises only legal experts as their task is to work on all the comments and inputs received throughout the consultation process to guarantee that the final draft be a rigorous interpretation of existing legally binding human rights law. They will work with a group of non-legal experts who will ensure that the text responds to reality.

The experts act in their individual capacity. The institutions listed with the names of the authors are for the purpose of identification rather than endorsement of the content of the Commentary by these institutions. They are:

• Professor Ann Skelton [chair of the Committee] (South Africa, UNESCO Chair for Education Law in Africa; Director, Centre for Child Law at the University of Pretoria; Member UN, Committee on the Rights of the Child)

• Professor Aoife Nolan (United Kingdom, Professor of International Human Rights Law, University of Nottingham; Member, Council of Europe European Committee of Social Rights; Member, Scottish First Minister’s Human Rights Leadership Advisory Group)

• Professor Benyam Mezmur (Ethiopia; Member, UN Committee on the Rights of the Child; Vice-chairperson, African Committee of Experts on the Rights of the Child; Associate Professor of Law at the Dullah Omar Institute for Constitutional Law, Governance and Human Rights at the Faculty of Law, University of the Western Cape)

• Dr Jacqueline Mowbray (Australia; Associate Professor, University of Sydney Law School; external legal adviser, Australian Parliament’s Joint Committee on Human Rights)

• Jayna Kothari (India; independent; Co-founder and Executive Director, Centre for Law and Policy Research; Counsel, Karnataka High Court & Supreme Court of India)

• Dr Magdalena Sepulveda (Chile; independent; former UN Special Rapporteur on Extreme Poverty; member of the Independent Commission for the Reform of International Corporate Taxation)

• Dr Maria Smirnova (Russia; independent; Honorary Research Fellow, Manchester International Law Centre, University of Manchester)

• Roman Zinigrad (Israel; J.S.D. candidate, University of Yale; Visiting Fellow, Sciences Po Law School)

• Professor Sandra Fredman (South Africa; Professor of the Laws of the British Commonwealth and the USA, University of Oxford; Director, Oxford Human Rights Hub; Honorary Queen’s Counsel)

• Sandra Epal Ratjen (France; independent; International Advocacy Director, Franciscans International)

Amnesty International, the Equal Education Law Centre, the Global initiative for Economic, Social and Cultural Rights, the Initiative for Economic and Social Rights, and the Right to Education Initiative will continue to act as a secretariat, facilitating the meetings and overall process, under the leadership of the Drafting Committee. For more information, you can refer to the dedicated page on the process.