• Geneva Updates

[updated 25/01] Court upholds Uganda's Ministry of Education's order to close BIA schools

 

On Friday 4th November, Bridge International Academies' (BIA) court case in Uganda relating to the closure of Bridge schools was dismissed with costs.  Bridge International Academies had previously secured a temporary court injunction against the Ministry of Education's order to close their schools until the ruling of the decision.  The Ministry had ordered for the closure of BIA schools on the ground that they are unlicensed and below minimum standards. The injunction was lifted on the 4th November and BIA's application dismissed with costs. Bridge International Academies will  have to close its schools in Uganda, if the government maintains their decision to have them closed. Following the judgement Bridge filed a notice of appeal,  the High Court has granted a stay of execution allowing all Bridge schools to remain open until 8th December.

The multinational company has other cases pending, notably in Busia county, Kenya, where the County Education board has issued an order to close all BIA schools in the county as they are unregistered and fail to meet the required minimum standards. The first hearing took place on Friday 4th November and a ruling has been scheduled for 30th November.

More information will be available soon concerning these cases, and the pages in this website will be regularly updated.

Updates 

For press statements, see http://bit.ly/2aNxoZc

• 25 January: Government announces unregistered private schools will not be allowed to open for first term: http://bit.ly/2krm35d

• 16 November: In a press release Bridge has stated they been granted a stay of execution allowing for all 63 of their schools to remain open until 8th December, notice of appeal has been filed by the company : http://bit.ly/2fweaW1

• 16 November: Legal Brains Trust Ltd have taken legal action against Bridge, suing them at the High Court Civil Division with the accusation that managers deliberately disobeyed the general education policy and laws of Uganda: http://bit.ly/2fF8WrQ

• 15 November: The Minister of Education and Sports has issued a press release in the New Vision asking parents to put their children in other schools and for local authorities to find alternative schools of parents' choice : http://bit.ly/2fTPquz

• 14 November: Parents and children have been asking to be reimbursed their fees: http://bit.ly/2gcYfjy

• 11 November: the government closes two Bridge schools : http://bit.ly/2fGXhvj

• 9 November: the Government of Uganda announced that "this situation, following several reminders, led the Ministry to invoke section 33 (4) of the Education Act 2008, to close Bridge International Academy" and "The Chief Administrative Officers in the district’s where these “schools” are located, the IGP, the Director Education Standards, all town clerks, all Municipal Education Officers, all District inspectors of schools, all DEO’s and Parents are informed and requested to make arrangements to have these children from these schools absorbed into the nearest UPE schools."http://bit.ly/2eVg967

• 7th November: Following the decision there have been a few instances of Bridge organised protests against the closure, including by organising children: http://bit.ly/2fOcKuW

• 4th November: It appears that the Ugandan Ministry of Education has asked for Bridge schools to be closed on Monday 7th November: https://twitter.com/cathkemi/status/794449903091060737.

• 4th November: In a press release Bridge announced that it would appeal the Court decision: http://bit.ly/2eeyBul

More information 

• The High Court ruling upholding the order for closure of BIA schools in Uganda can be accessed here

• For background information on the known court cases where Bridge Academies is a party, see the following information brief: http://bit.ly/2naXJ6b

• Human rights bodies statements related to States’ obligations with regards to Bridge International Academies: http://bit.ly/2fXvM11

• For media coverage of BIA's closure in Uganda, see: http://bit.ly/2aNxoZc

• For our monitoring page on commercial schools and the right to education, see: http://bit.ly/commerceduc

• To remain informed about key developments on private actors and the right to education, sign up to our mailing list: http://bit.ly/privatnews

• Geneva Updates

Information statement on going cases involving Bridge International Academies LTD

 

Recently the Government of Uganda and the Government of Kenya have sought to suspend the expansion of BIA. In Uganda and Busia County in Kenya, authorities have expressed intentions to close BIA schools under their jurisdiction over allegations of BIA failing to meet required standards of operation for institutions of basic education and failing to register legally. In response BIA has resorted to court action to challenge the government action against them.

Ahead of Friday, where progress will be made on two of these cases, the Global Initiative for Economic, Social and Cultural Rights, the Initiative for Social and Economic Rights and East African Centre for Human Rights have prepared a brief providing an update on known pending legal proceedings involving Bridge International Academies in Uganda and Kenya with the intention of bringing increased transparency to these cases and the issues they seek to address.

Read the full statement here

• Geneva Updates

ESC Rights Update from Geneva: 59th session of Committee on Economic, Social & Cultural Rights (19 September to 7 October 2016)

 

The Committee on Economic, Social and Cultural Rights (CESCR) held its 59th session from 19 September to 7 October 2016. Immediately following the session, a Working Group of the Committee held the ‘pre-session’ from 10 – 14 October. This Update provides a summary of the meetings and key developments:

• Sustainable development goals

• State reporting procedure

• Overdue and non-reporting States

• Communications under the OP-ICESCR

• ESC rights and business activities

• Human rights defenders of ESC rights

• Committee membership

• Practical matters

• Next session

 

Sustainable Development Goals

During the opening of the session on 19 September, Ms Peggy Hicks, Director of the ‘Thematic Engagement, Special Procedures and Right to Development Division’ of OHCHR gave an address focusing on the sustainable development agenda and goals (SDGs). Ms Hicks acknowledged input by the treaty body Chairs into the High Level Political Forum and encouraged the Committee to continue to consider ways to engage with the SDGs process. She underlined the importance of ensuring that the collection and analysis of data on the implementation of the SDGs, respects human rights principles and drew attention to the OHCHR Guidance Note on the topic. She noted the many links between the SDGs and the Covenant and said:

‘Human rights mechanisms, including treaty bodies, offer the opportunity of promoting accountability of those responsible for implementing the agenda, and ensuring that they do so in full conformity with human rights law. Building strong links between the Agenda, the Covenant and the High Level Political Forum and your monitoring work will be crucial to this, and to helping ensure the voices of the most marginalized are heard.’ ___________________________ It is interesting to note also that the Committee appears to have added to its Concluding Observations a standard paragraph addressing the SDGs:

‘The Committee recommends that the State party take fully into account its obligations under the International Covenant on Economic, Social and Cultural Rights and ensure the full enjoyment of these rights in the implementation of the 2030 Sustainable Development Agenda at national level, with the support of international assistance and cooperation when needed. Achieving the Sustainable Development Goals shall be significantly facilitated by the State party establishing independent mechanisms to monitor progress, and by treating beneficiaries of public programs as rights-holders who can claim entitlements. Building the implementation of the SDGs on participation, accountability and non-discrimination shall ensure that no one is left behind in the process.’ (note this is the advance unedited version)

This is a welcome development and hopefully the beginning of a deeper engagement by the Committee with the SDGs process. This paragraph highlights the importance of ensuring that implementation of the SDGs occurs in a manner compliant with ICESCR and that it has as its foundation the human rights principles of participation, accountability and non-discrimination. Given the strong resistance by States to independent monitoring and any true accountability mechanism within the 2030 Agenda, CESCR can play a significant role in emphasising the importance and benefits of these elements. It might also be interesting for CESCR to develop some more specific guidance to States on how to do these things, including perhaps through States aligning or integrating their SDGs and CESCR reporting processes.

 

State Reporting Procedure

The following States were reviewed during the session:

Costa Rica, Cyprus, Dominican Republic, Lebanon, Philippines, Poland, Tunisia

The Committee has published its Concluding Observations for these countries HERE.

During the ‘pre-session’ the Committee considered Lists of Issues for the following States: Australia, Liechtenstein, Netherlands, Pakistan, Sri Lanka, Uruguay

The Committee has published Lists of Issues for these States HERE.  The State dialogue for each of these States will be held in May/June 2017.

 

Overdue and non-reporting States

The Secretariat has published a

summary

 of the reporting status of all State Parties to the Covenant. It shows which States are overdue in reporting, including some States that have never reported. Civil society organisations may wish to use the report to identify when a State is due to submit its report, whether it is overdue and to encourage the State to engage in the reporting process.

Another useful resource which provides the reporting status for each State for all treaties can be found HERE.

 

Communications under the OP-ICESCR

The Committee considered 1 Communication during this session and found it

inadmissible

.  The documentation is being finalised and the decision will be published

HERE

in approximately 3 weeks.

Guidance for third party interventions The Committee also discussed and adopted ‘guidance on third-party interventions, which would regulate the intervention of individuals and entities which might wish to file an amicus brief in an individual communication procedure’ (Guidance).  The Guidance is a welcome clarification of the Committee’s practice with respect to third party interventions.  It confirms that the Committee can ‘accept relevant information and documentation submitted by third-parties when necessary for the proper determination of the case’ and that it can also request such third party information. Intervenors must observe the requirements set out in the Guidance, including for instance:

• Interventions can only be submitted after making a written request to intervene and receiving the Committee’s authorization;

• The authorization will indicate the dead-line, word limit, the issues which the intervention is permitted to address and any confidentiality requirements;

• All third party interventions will be provided to the parties for comment; and

• Third parties will not be considered parties to the Communication and will not have access to the case file or documentation.

The Guidance is available HERE.

Thematic areas of work

 

ESC Rights in the context of Business Activities

The Committee will hold a ‘Day of Discussion’ on ‘the Draft General Comment on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ on 21 February 2017, during its next session.

The Day of Discussion will be open to all stakeholders and written submissions in advance of the Day of Discussion are invited.  More information about the Day of Discussion is available HERE, including:

• the draft of the proposed General Comment (only in English at this stage, but French and Spanish versions to be available before the Day of Discussion);

• details on how to make written submissions; and

• details on how to register to attend the Day of Discussion.

A programme of the Day of Discussion will be made available on the same webpage in the coming months.

 

Human Rights Defenders of Economic, Social & Cultural Rights

On 7 October 2016 the Committee adopted a STATEMENT on ‘human rights defenders of economic, social and cultural rights’ (E/C.12/2016/2).

The statement was made by the Committee following a briefing and discussion paper prepared jointly by GIESCR, the International Service for Human Rights and the International Platform Against Impunity. A coalition of over 300 civil society organisations coordinated by these NGOs also wrote to the Committee in May 2016 urging it to take action.

This is the first comprehensive public Statement by a UN human rights treaty body specifically addressing human rights defenders.  It provides a clear articulation of the Committee’s views on this topic and strong guidance to States on the protection of defenders of ESC rights. Importantly, the Statement commences by recognising the essential contribution of civil society to the effective promotion, protection and realization of ESC rights, especially in monitoring and evaluating States’ compliance with the Covenant and dissemination of information about the ICESCR and the Committee’s work.

The Committee notes its ‘alarm’ at ‘past and present incidences .... regarding the situation of human rights defenders working in the field of economic, social and cultural rights’ and underlines the importance of human rights defenders ‘being able to work freely without any threat or fear’.  It ‘reminds States parties of their responsibility to ensure that human rights defenders are effectively protected against any and all forms of abuse, violence and reprisal which they might experience while carrying out their work to promote the realization of these rights’ and urges compliance with the Declaration on Human Rights Defenders. It also outlines specific measures that States should adopt to safeguard defenders of ESC rights.

A key advance in the Statement is the confirmation that it considers ‘any threat or violence against human rights defenders to constitute violations of States’ obligations towards the realization of Covenant rights’.

 

Committee membership

This was the final Committee session for 3 members of the Committee who will be stepping down from 31 December 2016: Mr Ariranga Pillay (Mauritius); Mr Nicolaas Schrijver (Netherlands); and Mr Sergei Martynov (Belarus). The chairmanship of Mr Waleed Sadi will also come to an end on the first day of the next session. The Committee will elect a new Chair at the beginning of its first session in 2017.

At the first session in 2017, three new Committee members will commence their terms on the Committee:

• Ms Laura-Maria Craciunean Romania

• Ms Sandra Leibenberg South Africa

• Mr Michael Windfuhr Germany

 

Practical matters

• The process for accreditation for CESCR sessions is likely to change. We recommend you consult the CESCR website for further information when preparing for accreditation.

• During the June 2017 session there will be a change of practice in respect of the time for NGOs to brief the Committee. The convention has been for this briefing to occur on the Monday morning of the week during which the relevant State dialogue is scheduled. However, instead, the NGO briefings will be distributed differently over the first three weeks of the session. Check the website for details of the program and the time and date for the NGO briefings.

• It is expected that both the February and June sessions in 2017 will be at Palais Wilson.

 

Next session

The next session will be held from

20 – 24 February 2017

.  Unusually, no States will be reviewed at the next session.

The Committee intends to use the session time for General Comment development, addressing Communications and addressing the issue of non-reporting States and long overdue State reports.

Immediately after the February session, a Working Group of the Committee will hold a ‘pre-session’ (27 February – 3 March) during which it will consider the Lists of Issues for:

Colombia, Mexico, Republic of Korea, Republic of Moldova, Russian Federation

The deadline for civil society reports/submissions in respect of the List of Issues for these countries is 13 January 2017 (preferable), but 30 January at the latest.

The State review for each of these States will be held in September/October 2017.  The Committee also plans to review the first two reports to be submitted under the simplified reporting procedure (Spain and New Zealand) at the September/October 2017 session.

The sixty-first session of the Committee will be held from 29 May to 23 June2017 during which the Committee will consider the reports of:

Australia, Liechtenstein, Netherlands, Pakistan, Sri Lanka and Uruguay

The deadline for civil society reports/submissions in respect of the review of these countries is 18 April 2017 (preferable), but 5 May at the latest.

• Geneva Updates

New page on private actors in education services of Francophone countries

 

A number of countries grouped in the Francophonie are confronted with the non-respect of the right to education with the growth of private actors in the education sector, supported by certain donors and international institutions. The aim of this page is to gather information produced by the Francophonie on the questions of commercialization and privatization of education [in French].

• Geneva Updates

ESC Rights Update from Geneva: 33rd session of the Human Rights Council (13 to 30 September 2016)

 

Economic, social and cultural rights at the 33rd session of the UN Human Rights Council 13 September to 30 September 2016

This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 33rd session of the Human Rights Council (September 2016). There were not so many ESC rights specific initiatives at this session, although a number of related initiatives. One theme running through the discussions, reports and resolutions was linking thematic human rights issues with the sustainable development goals (SDGs) and ensuring a human rights based approach to the implementation and monitoring of the SDGs.

It was also interesting to hear the High Commissioner for Human Rights specifically mention ESC rights in his Opening address. He stated:

'Human rights are universal, indivisible and interdependent; if States pick and choose which rights they will uphold, the entire structure is undermined. Yet I am frequently surprised by assertions my Office is insufficiently concerned with economic and social rights. This is a statement often made by representatives of States which have few or no national accountability mechanisms to ensure that economic and social rights are effectively protected – and have adopted no legislative framework to give domestic legal effect to the CESCR. I am convinced civil, political, economic, social and cultural rights, as well as the right to development, can only be effective when they are viewed as mutually supportive. And although there is no one correct model, applying human rights in practice requires that they be addressed as rights – not as neutral commodities or optional policy outcomes. I urge all Member States of this Council to move swiftly to establish the legal frameworks which can ensure implementation and accountability for economic and social rights.'

This Update provides information about:

• Rights to water and sanitation

• Right to health

• Cultural rights

• Maternal mortality and morbidity

• Other initiatives of interest

 

Rights to water and sanitation

The Special Rapporteur on the right to water and sanitation presented his report on the topic of gender equality (A/HRC/33/49), to the Human Rights Council.  It is an important report as it highlights the importance of gender equality in the context of the rights to water and sanitation, explains its meaning and pulls together much of the work on gender equality undertaken by the successive mandate holders. The report explores women and men’s different access, use, experiences and knowledge of water, sanitation and hygiene. It shows how cultural, social, economic and biological differences between women and men consistently lead to unequal opportunities for women in the enjoyment of the rights to water and sanitation, and impacts on other human rights, such as health, housing, education and food, and to gender equality more generally.

The Special Rapporteur underlines the importance of focusing ‘on the needs of women and girls at all times, throughout their whole lifecycle, and of not overlooking the needs of women and girls with disabilities, living in poverty or suffering from other disadvantages’.

He also highlights the need for ‘concerted efforts in meeting women’s material needs, such as access to affordable menstrual products, as well as their strategic needs, such as tackling harmful gender stereotypes and structural determinants of inequalities that affect access to water, sanitation and hygiene’. The Special Rapporteur takes a broad definition of gender equality emphasising that it includes the rights and experiences of transgender and gender non-conforming people.  He notes that transgender and gender non-conforming people also experience discrimination in the realisation of their rights to water and sanitation, and states:

‘Water and sanitation facilities must be safe, available, accessible, affordable, socially and culturally acceptable, provide privacy and ensure dignity for all individuals, including those who are transgender and gender non-conforming.’

He discusses intersectionality and the impact of multiple forms of discrimination, such as where women also are living in poverty, with a disability, suffer from incontinence, live in remote areas, lack security of tenure, are imprisoned or are homeless.

The Special Rapporteur calls for a transformative approach which addresses the ‘root causes of inequalities and the dismantling of structural barriers, taboos, stereotypes and social norms that prevent the equal enjoyment of rights on the basis of gender.’ He underlines that it is necessary to challenge social norms, stereotypes and intra-household patterns, while also promoting gender-responsive interventions that prioritize the implementation of women’s specific needs. In terms of gender stereotyping, he urges: ‘States cannot dismiss stereotyping and stigma as a social phenomenon over which States have no influence; instead, they must actively combat practices that are based on harmful stereotypes of men and women, including in the private sphere’.

For instance, he discusses sociocultural norms about ‘feminine modesty’ and stigma and taboo surrounding female menstruation, as examples of how gender stereotyping impacts on women’s rights to water and sanitation, as well as many other human rights. He also discusses gender-based violence that women fear in accessing public toilets and open defecation sites and that trans-gender people face when accessing gender-segregated sanitation facilities.

Resolution

The annual resolution on the right to water and sanitation was adopted at this session (A/HRC/RES/33/10) by vote of 42 for and 1 against (Kyrgyzstan). Spain and Germany were the main proponents of the resolution. Kyrgyzstan proposed an amendment which attempted to limit the scope of state obligations to the realization of the rights ‘within the states’ and ‘on their own territories’. The amendment was rejected and the resolution passed easily.

The resolution begins by reaffirming the important advances in the normative content of the rights, thereby solidifying the recognition in international law of distinct legal rights to water and to sanitation and also the elements of those rights.

For instance, the operative paragraphs begin by welcoming ‘the recognition by the General Assembly of the human rights to safe drinking water and sanitation as components of the right to an adequate standard of living and essential for the full enjoyment of the right to life and all human rights’. It goes on to reaffirm the General Assembly’s recognition of the elements of the right to safe drinking water: ‘without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use…’ and the elements of the right to sanitation: ‘physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity….’[1]

The resolution then follows the theme of the Special Rapporteur’s report, by calling on States to take action to eliminate gender inequality in the realization of the rights to water and sanitation, for instance by:

• reforming laws that have direct and indirect discriminatory consequences;

• tackling systemic inequalities and achieving substantive gender equality, including through targeted gender-responsive policies, budgets and measures;

• preventing and combating root causes of gender inequalities, such as social norms, stereotypes, roles and taboos with regard to both women and men, through public campaigns, education and the media;

• using an ‘intersectionality lens’ in policy initiatives; and

• enabling the meaningful participation of women and girls at all stages of planning, decision-making, implementation, monitoring and evaluation.[2]

Finally, the resolution extends the mandate of the Special Rapporteur for another 3 years and: ‘Encourages the Special Rapporteur to continue to contribute to the implementation of the 2030 Agenda for Sustainable Development, in particular Goal 6 ….’.

An unofficial summary of the Interactive Dialogue with the Special Rapporteur on water and sanitation is HERE. GIESCR’s Oral Statement for the Interactive Dialogue is HERE.

[1]

A/HRC/33/10 paragraph 2

[2]

A/HRC/33/10 paragraph 9

 

Right to health

The Council adopted a resolution on ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (A/HRC/33/9). The resolution is short and does not address a thematic topic. It merely extends the mandate of the Special Rapporteur and takes note of his report to the previous session of the Human Rights Council.

In addition, as is increasingly occurring with the ESC rights resolutions of the Council, the mandate holder is ‘encouraged’ to align his work with the SDGs:

‘…in fulfilling the mandate, to submit proposals that could support the implementation of the health-related Sustainable Development Goals and targets.’

 

Cultural rights

The Human Rights Council adopted a resolution on cultural rights and the protection of cultural heritage (A/HRC/RES/33/20). The resolution’s main sponsors were Cyprus, Ethiopia, Greece, Iraq, Ireland, Mali, Poland, Serbia and Switzerland. It was adopted without a vote after an oral amendment by Russia and Venezuela attempting to remove the references to ‘human rights defenders’ and replace it with ‘those involved in the protection of cultural heritage’, was defeated.

The resolution:

• urges all parties to armed conflicts to refrain from any unlawful military use or targeting of cultural property, in conformity with their international humanitarian law obligations;

• calls for enhanced international cooperation in preventing and combating the organized looting, smuggling, theft and illicit trafficking of cultural objects and in restoring the cultural property to its countries of origin;

• calls for the development of partnerships between national authorities and civil society, with the aim of enhancing the protection of cultural rights and for the identification of best practices for the prevention of violations of cultural rights and of damage caused to cultural heritage, both tangible or intangible; and

• calls for the recognition of cultural heritage protection as an important component of humanitarian assistance, including in armed conflict and vis-a-vis displaced populations.

The resolution also encourages States to adopt a gender-sensitive approach to the protection of cultural heritage and rights and calls for the protection of cultural rights defenders.[1]

In relation to the destruction of cultural heritage, it calls on States to adopt strategies, including documenting cultural heritage, implementing educational programmes on the importance of cultural heritage and rights and training military forces concerning the protection of cultural heritage, both during and in the aftermath of armed conflict. In this respect, the Council also encouraged States to ‘consider implementing the recommendations on intentional destruction of cultural heritage made by the Special Rapporteur in the field of cultural rights in her reports presented to the Human Rights Council and to the General Assembly.’[2][3

Finally, the Council requests the OHCHR to ‘convene a one-day intersessional seminar on ways to prevent, contain and/or mitigate the detrimental impact of the damage to or destruction of cultural heritage on the enjoyment of human rights…’ and prepare a summary report.

[1]

A/HRC/RES/33/20, OP 9 & 10.

[2]

See A/71/317

[3]

A/HRC/RES/33/20, OP 12

[4]

A/HRC/RES/33/20, OP 13

 

Maternal mortality and morbidity

Pursuant to the request in resolution A/HRC/RES/27/11, the OHCHR submitted a report on ‘Follow-up on the application of the technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity’ (A/HRC/33/24).

The report provides details of various initiatives related to the implementation of the technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity (the Guidance).  It discusses progress in the dissemination of the Guidance, national initiatives and NGO law reform advocacy utilizing the Guidance and legislative reforms aligning national laws with the Guidance. It also provides examples of the Guidance being used in government planning and budgeting, training of health care workers and in monitoring and review processes.

The report also contains a very useful and interesting discussion of the importance of ensuring a human rights based approach to preventable maternal mortality and morbidity in the implementation of the SDGs, including consideration of human rights-sensitive indicators and a human rights-based approach to the collection, production, analysis and dissemination of data.

The report insists that accountability must be at the heart of a rights-based approach and not an afterthought once a violation has occurred. In the context of the SDGs, the report recommends that the country and thematic reviews to be undertaken by the high-level political forum on sustainable development should systematically draw upon information and recommendations from the UN human rights mechanisms, ensuring that implementation of the 2030 Agenda is consistent with binding human rights obligations. Such reviews should also include review of the actions of private actors, such as private hospitals and pharmaceutical companies.

Finally, the report annexes a very useful table containing ‘Indicators for assessing compliance with human rights obligations, especially related to sexual and reproductive health and rights’.  The table lists the elements of the core content of the right to sexual and reproductive health as described in the CESCR’s General Comment No. 22 (2016) on sexual and reproductive health, and, in respect of each element, offers numerous indicators for determining whether it has been complied with.

Resolution

The Council adopted a resolution on preventable maternal mortality and morbidity and human rights (A/HRC/RES/33/18). The resolution is often considered sensitive and sometimes controversial, particularly given its link to women’s sexual and reproductive health and rights. For example, paragraphs that raised sensitive issues for some States include:

• ‘reaffirming that the human rights of women include a woman’s right to have control over, and to decide freely and responsibly on, matters related to her sexuality, including sexual and reproductive health, free of coercion, discrimination and violence, and that equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences’[1]; and

• ‘regretting the multitude of factors that can lead to maternal mortality and morbidity, including lack of accessible and appropriate health-care services, information and education, lack of access to emergency obstetric care, poverty, all types of malnutrition, harmful practices, including child, early and forced marriage and female genital mutilation, denial of contraception, unsafe abortion, discrimination against women, gender inequality and gender-based stereotypes’.[2]

Some of these sensitivities were reflected in Russia’s proposal of 14 amendments to the text, 5 of which were voted on and succeeded and 9 of which were withdrawn. Eventually the text was adopted without a vote after oral revisions reflecting the majority of the Russian revisions. The revisions mainly removed references to a ‘right to sexual and reproductive health’ and ‘sexual and reproductive rights’ and referred instead to the right to health, including sexual and reproductive health as an integral part of this right.[3] The revisions also removed the encouragement for States to adopt the recommendations of the OHCHR follow-up report.

Nevertheless, overall the text remains strong, including for instance the acknowledgment that:

• 'the failure to prevent maternal mortality and morbidity is one of the most significant barriers to the empowerment of women and girls in all aspects of life, the full enjoyment of their human rights, their ability to reach their full potential and to sustainable development...'[4]

The operative paragraphs urge States to renew their political commitment to eliminate preventable maternal mortality and morbidity, including through development partnerships and international assistance and cooperation arrangements which should be undertaken using a human-rights based approach. The text also urges States to ensure the availability of effective accountability and monitoring mechanisms and access to justice for women[5] and addresses:

• ‘interlinked causes of maternal mortality and morbidity, such as lack of accessible, affordable and appropriate health-care services for all, and of information and education, poverty, all types of malnutrition, harmful practices, including child, early and forced marriage and female genital mutilation, early childbearing, gender inequalities and all forms of discrimination and violence against women, and to pay particular attention to eliminating all forms of violence against women and girls, especially adolescent girls, while ensuring the meaningful and effective participation of women and girls …’.[6]

The resolution also ‘encourages States to consider using general comment No. 22 (2016) of the Committee on Economic, Social and Cultural Rights’ in their efforts to reduce preventable maternal mortality and morbidity.[7] Unfortunately references to the SDGs in 2 paragraphs were deleted in the oral amendments to the resolution.

The Council also takes note of the OHCHR report mentioned above and decides to convene, at its 34th session, a panel discussion on the linkages between the SDGs relating to preventable maternal mortality and morbidity and sexual and reproductive health and rights, and requests the OHCHR to prepare a summary report.[8]

Finally, it requests the High Commissioner to present to the Council at its 39th session, a follow-up report on good practices and challenges in the application of a human rights-based approach to the elimination of preventable maternal mortality and morbidity, including through the utilization of the Guidance.[9]

[1]

A/HRC/RES/33/18, PP 13 and see also OP 4

[2]

A/HRC/RES/33/18, PP 20

[3]

Eg : PP3, PP6, PP10, PP19

[4]

A/HRC/RES/33/18, PP 23

[5]

A/HRC/RES/33/18, OP 9

[6]

A/HRC/RES/33/18, OP 3

[7]

A/HRC/RES/33/18, OP 8

[8]

A/HRC/RES/33/18, OP 11

[9]

A/HRC/RES/33/18, OP 12

 

Other initiatives of interest:

• On 26 September the Human Rights Council held is annual discussion on the ‘Integration of a gender perspective throughout the work of the Council and its mechanisms’, which focused on gender integration in the resolutions and recommendations of the Council. GIESCR’s Joint Oral Statement made during the discussion, which addresses gender balance on UN human rights bodies and mechanisms is HERE. An unofficial summary of the Panel Discussion is HERE.

• The Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes (A/HRC/33/41), presented his report at this session, together with his mission reports on the Republic of Korea and Germany. The report discusses the impacts of toxics and pollution on children’s rights, and the obligations of States and responsibilities of businesses in preventing exposure by children to such substances.

• The Special Rapporteur on contemporary forms of slavery, including its causes and consequences presented her report to the Council on debt bondage (A/HRC/33/46). The report outlines the legal definition of debt bondage and the trends in different regions. It explains:

  • 'People enter the status or condition of debt bondage when their labour, or the labour of a third party under their control, is demanded as repayment of a loan or of money given in advance, and the value of their labour is not applied towards the liquidation of the debt or the length of the service is not limited and/or the nature of the service is not defined. Consequently, bonded labourers are often trapped into working for very little remuneration, or in some cases none, to repay the loan or advance, even though the value of their labour exceeds that sum of money'.

  • The Special Rapporteur discusses how debt bondage is closely related to a number of forms of exploitation, including forced labour, the abuse of migrant workers, trafficking, and the worst forms of child labour. She notes that it is a global problem disproportionately impacting ‘vulnerable people’, such as ‘those belonging to minority groups, indigenous people, women, children, people determined as being of low caste, and migrant workers’ and that ‘many victims of debt bondage face multiple and intersecting sources of discrimination which make them vulnerable to exploitation and abuse’.

  • In considering the key drivers for debt bondage, the Special Rapporteur highlights poverty, lack of decent work, lack of access to land, lack of affordable health care and barriers to education. She also discusses how discrimination is a common theme and ‘significantly increases their vulnerability to debt bondage and at the same time limits their opportunities for escaping such abuse’. The Special Rapporteur also considers the challenges for addressing the problem of debt bondage, including: lack of measures to address underlying causes, such as poverty and lack of decent work; lack of access to justice; and corruption.

  • Finally, the Special Rapporteur promotes a human rights-based approach to the full eradication and prevention of debt bondage & provides recommendations for Member States.

  • The Council also adopted a resolution which renewed the mandate for a further 3 years of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences (A/HRC/33/1). It encourages the Special Rapporteur:

    • ‘to compile and analyse examples of national legislation relating to the prohibition of slavery and slavery-like practices in order to assist States in their national efforts to combat contemporary forms of slavery.'

It also requests the Special Rapporteur to advise:

• ‘States, intergovernmental organizations, civil society and other stakeholders on the effective respect, protection and fulfilment of human rights of those affected by contemporary forms of slavery in the implementation of the 2030 Agenda, and to undertake thematic research on the effective implementation of Goal 8, with a particular focus on target 8.7.’

• Geneva Updates

UN experts outline States’ legal obligations to respect and protect defenders

 

States have a legal obligation under the International Covenant on Economic, Social and Cultural Rights to respect and protect human rights defenders working towards the realisation of those rights, according to a groundbreaking new statement by a UN Treaty Body.

 

 

In an authoritative statement, the Committee on Economic, Social and Cultural Rights, said that ‘it considers any threat or violence against human rights defenders to constitute violations of States’ obligations towards the realisation of Covenant rights’.

‘This is a significant development, recognising that attacks or restrictions against, for example, human rights defenders working to oppose forcible evictions may actually amount to a violation of the right to housing itself,’ said Lucy McKernan of the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR).

The statement was made by the Committee following a briefing and discussion paper prepared jointly by GI-ESCR, the International Service for Human Rights and the International Platform Against Impunity. A coalition of over 300 civil society organisations coordinated by these NGOs also wrote to the Committee urging it to take action.

In the most comprehensive statement on defenders issued by a UN treaty body, the Committee expresses serious concern as to the worsening risks and threats faced by many human rights defenders working to promote economic, social and cultural rights. It reiterates that States’ obligations towards defenders include an obligation to ensure they are ‘effectively protected against any and all forms of abuse, violence and reprisal’ and to investigate and ensure accountability for any such acts, whether perpetrated by State or non-State actors.

‘Investigating, punishing and ending impunity for attacks and violations against human rights defenders is crucial both to ensure accountability and to prevent and deter further violations,’ said Andrea Bolaños Vargas of International Platform Against Impunity.

The Committee’s statement also sets out a range of positive measures that States should take to protect defenders in line with their obligations under the Covenant. These steps include publicly recognising defenders' vital and legitimate work, reviewing and repealing laws and policies which criminalise or restrict such work, and developing and implementing specific laws and mechanisms for defenders’ protection.

Welcoming the statement, ISHR Director Phil Lynch said, ‘This is the first time that a UN treaty body has adopted an official statement on the situation of human rights defenders and the legal obligations of States to ensure a safe and enabling environment for their work. The statement also effectively recognises that States must respect and protect defenders' rights to freedom of expression, association, assembly and public participation as an aspect of their obligations under ICESCR. We encourage all treaty bodies to now follow CESCR’s lead by adopting General Comments, statements or recommendations which recognise States’ treaty obligations to respect and protect defenders and which provide them with concrete policy guidance in that regard.’

At the same session at which CESCR adopted its Statement on Human Rights Defenders and Economic, Social and Cultural Rights, it also made targeted recommendations to the Philippines and to the Dominican Republic about the specific Covenant obligations of those States in relation to defenders.

Contacts:

• International Service for Human Rights – Phil Lynch at This email address is being protected from spambots. You need JavaScript enabled to view it.

• Global Initiative for Economic, Social and Cultural Rights – Lucy McKernan at This email address is being protected from spambots. You need JavaScript enabled to view it.

• International Platform against Impunity – Andrea Bolaños Vargas at This email address is being protected from spambots. You need JavaScript enabled to view it.

• Geneva Updates

Human Rights Beyond Borders: The Maastricht Principles Turn Five

 

Human Rights Beyond Borders: The Maastricht Principles Turn Five. Are human rights obligations breached by an intergovernmental organization or its governing States, when it tells a government to cut its public services? Can the obligations under the right to food be left completely to a State that is adversely affected by the climate impact of other countries? What about the human rights obligations of States whose powerful corporations can displace people abroad from their lands, because these people’s government does not protect them - being in the hands of foreign business networks? To defend human rights, it is not sufficient to look solely at the acts of national governments within their territory. Whether negotiating investment agreements, addressing climate-destruction - or providing legal frameworks for business enterprises: Human rights are increasingly integrated and have now become important terms of reference in international relations. This is necessitated by the universal reach of the values that human rights protect. But it is equally mandated by law.

Human rights obligations are now well recognized to extend beyond borders. These obligations are carried by one or more States at the same time, in some cases by the global community of States as a whole. From the point of view of individual States or victims of violations these obligations are “extraterritorial”.  Five years ago, on 28 September 2011, some 40 experts in international law and human rights met at a conference convened by Maastricht University and the International Commission of Jurists. They adopted the Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights. The Principles are drawn from international law and based on extensive legal research. The experts came from all regions of the world and included current and former members of international human rights treaty bodies, regional human rights bodies, and former and current Special Rapporteurs of the United Nations Human Rights Council as well as academic and non-governmental experts.

“In their five years of existence, the Maastricht Principles have become an important point of reference in identifying just what States are expected to do in human rights terms beyond their borders”, says Ian Seiderman, Legal and Policy Director of the International Commission of Jurists, “On the one hand, States must respect and protect rights in their activities abroad; and, on the other, they have an obligation to help realize the rights of people globally through international cooperation and assistance.”

Extraterritorial State obligations are increasingly called upon in the UN Human Rights System and are on the agenda in treaty negotiations of States in relation to regulating transnational corporations and other business enterprises. When addressing the States in their first session in July 2015, the UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, said: “Fortunately, the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights go a long way to clarifying the application of law in this context, and will provide a powerful resource for the Intergovernmental Working Group to call upon for guidance.”

“Transnational business is just one example. Obligations across borders have a wide range of application”, says Professor Fons Coomans of Maastricht University, “The Maastricht Principles are increasingly used by civil society organisations to hold States accountable for their extraterritorial conduct. The application of the Principles has also become a subject of academic research. I am glad that the Principles have already proved useful in their first 5 years.”

ETO Consortium, Heidelberg, www.etoconsortium.org; This email address is being protected from spambots. You need JavaScript enabled to view it.

The Global Initiative for Economic, Social and Cultural Rights is a member of, and serves on the Steering Committee of, the ETO Consortium.

28 September 2016.

• Geneva Updates

Global Initiative for Economic, Social and Cultural Rights - Annual Report 2015

 

Global Initiative for Economic, Social and Cultural Rights - Annual Report 2015 Message from the Co-Executive Directors

The Global Initiative began in 2010, as an initiative to advance the realization of economic, social and cultural (ESC) rights globally, tackling the endemic problem of poverty and social injustice through a human rights lens.  Our vision is of a world where the human rights framework reflects the real world experiences of all of us, effectively furthering social and economic justice and human dignity, and catalyzing change from the local to the global, and back to the local.  To realize this vision, our role is one of catalyzing social change through leveraging of strategic spaces.  This is work that we undertake in close partnership with local partners from around the world; what we like to call “making the UN work for the poor,” although it also encompasses strategic spaces beyond the UN.

2015 not only brought a celebration of our fifth anniversary, but was also a year of reflection and transformation, as we carefully moved from our startup phase to the next phase of our organizational development.  This transformation involved a strategic planning process including broad consultation with partners and others with which we’ve worked over the past five years.  That process identified that the launch phase had distinguishing characteristics: organizational agility, nimbleness, high quality technical insights, an eye for the strategic, partnering with and drawing upon other networks and advocates, and high appreciation for local actors and agency.  These qualities and core values will be nurtured and sustained as growth and greater impact are pursued in this next phase.

GI-ESCR believes that scaling up to the next phase requires both the amplification of voices of local advocates by leveraging international law and mechanisms – and informing the content, meaning, and interpretation of international human rights norms from the perspectives of marginalized groups and communities.  As such, this two-way exchange of information and advocacy results both in specific change at the local level and structural change within the international human rights normative framework, and a more intentional and profound symbiosis between the two.  It is no longer enough to think globally and act locally; GI-ESCR works with partners to think and act, globally and locally, where work at one level is enriched by, and strengthens and supports the other.

2015 also brought several key results and accomplishments, as highlighted in this Annual Report.  Our focus on innovative areas of human rights normative development and implementation continued, with successes in the areas of women’s rights related to access to land and other productive resources, extra-territorial human rights obligations, furthering additional avenues for enforcement of social rights, the human rights impact of privatization of social rights with a particular focus on the right to education, and increasingly focusing on systemic violations of economic, social and cultural rights and the need for positive measures to be taken to remedy such violations.

We also worked in more developed areas were we have deep expertise, such and the right to adequate housing, the rights to water and sanitation, strategic litigation to enforce social rights, and the human rights defenders focusing on economic, social and cultural rights.

As we exit 2015 and enter 2016, our goal is to build on these successes and strengthen both the substantive areas of our work as well as the organizations generally, including in the areas of governance and communications as well as our important presence in Geneva.

Our vision of the GI-ESCR in the next phase is a sustainable and mature organization and a more coherent organizational identity.  We envision an organization which is recognized and valued for its leadership on a range of ESC rights issues.  It is of an organization with a solid and growing base of donor support, with active and engaged staff, management and Board.  Our aim is to ensure that concrete outcomes and impact not only further our mission but lay the foundation for future human rights advocacy of others.

Mayra Gomez and Bret Thiele, Co-Executive Directors

Global Initiative for Economic, Social and Cultural Rights

The 2015 Annual Report is available HERE.

• Geneva Updates

ESC Rights Update from Geneva: 32nd session of the UN Human Rights Council (June 2016)

 

32nd session of the UN Human Rights Council 13 June to 1 July 2016 This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 32nd session of the Human Rights Council (June 2016). It provides information on the following ESC rights initiatives:

Right to education Right to health Women’s economic, social and cultural rights Extreme poverty and human rights Environment and climate change Business and human rights Other initiatives of interest

 

Right to education

The Special Rapporteur on the right to education, Mr Kishore Singh presented his final report to the Human Rights Council before his mandate ends. His report (A/HRC/32/37) addresses issues and challenges to the right to education in the digital age, with a focus on higher education. It discusses how the norms and principles that underlie the right to education should be upheld while embracing digital technologies.

In his report Mr Singh considers how digital technologies are rapidly transforming higher education, including the emergence of massive open online courses as an alternative path to higher education. He identifies concerns about the quality of such courses, lack of regulation, the risk of fraud, the recognition of certifications and lack of face-to-face learning: ‘In the light of the rise of online and web-based learning, the Special Rapporteur considers it important to recognize the limits of the pedagogical value of technology-based and distance education, putting a premium on face-to-face learning and human interactions in education. All forms of online education may help increase access to higher education, but only if they are a supplement to, and not a replacement for, proven pedagogical practices.’

The Special Rapporteur also expresses concerns about the digital divide, particularly between ‘developing’ and ‘developed’ countries, rural and urban populations, for women and girls and disadvantaged groups, and about how it affects fundamental principles, such as equality of opportunity. He looks at disparities in access to the internet and digital technologies and infrastructure constraints.

The report also emphasizes the importance of preserving the human rights values in digital education and ensuring that the humanistic mission of education is not lost. Mr Singh acknowledges that the private sector are key players in digitization but cautions against the commodification of knowledge and universities moving away from their social function.  He urges States to safeguard against the forces of privatization in education, which are particularly pronounced for digital education.

The Special Rapporteur sets out policy and legal responses to address these issues and also highlights the repercussions of digital technologies on public investment in education and on the quality of education, especially in respect of preserving human values in education. Importantly, he underlines the need to safeguard education as a public good and to ensure effective regulation of digital education.

Resolutions

The annual resolution on the right to education was adopted at this session (A/HRC/RES/32/22) without a vote. Portugal was the proponent of the resolution and mustered at least 70 co-sponsors. The resolution picked up some of the key recommendations of the report of the Special Rapporteur including issues of access, quality and equity in the use of information and communications technology in education to bridge the digital divide and assessing the quality of online and internet education and certification.

A large group of education and human rights NGOs, including GI-ESCR, applauded the adoption of the resolution and in particular its emphasis on ensuring effective regulation of public and private education providers and on the importance of investment in public education and preserving education as a public good. See HERE

There was also a resolution on ‘realising the equal enjoyment of the right to education by every girl’ which was presented by the United Arab Emirates and adopted by consensus (A/HRC/RES/32/20). The resolution linked back to the panel discussion held by the Council during its 29th session, on this topic and the OHCHR report on that panel discussion (A/HRC/30/23).

The resolution urged States to eliminate discrimination against girls in education and remove all obstacles such as discriminatory laws, custom, tradition or religious considerations, financial barriers, violence, child labour, harmful practices (eg: FGM), gender stereotypes, child early and forced marriage and early pregnancy.  It also called on States to:

• ensure that educational institutions are safe and free from violence and abuse and girls can travel to and from and attend school safely;

• address the school drop-out rate of girls and ensure that there are primary and secondary school places available for girls within a reasonable distance from home;

• provide equal access to education for girls from marginalized and excluded groups, with disabilities, indigenous girls, ethnic, religious and linguistic minorities, girls in rural areas and economically disadvantaged girls;

• provide every primary and secondary school with professionally trained and qualified teachers, including female teachers and with full access to separate, adequate and safe water and sanitation services;

• develop an non-discriminatory, inclusive, accessible and culturally sensitive, safe, supportive and secure environment conducive to providing a quality education, including human rights education….and financial literacy …. to enable girls to be proactive actors in society;

• eliminate gender based stereotypes from all educational processes, practices and teaching materials;

• prioritise education in state budgets, increase investments and international cooperation to allow all girls to complete free, equitable, inclusive and quality education and support developing countries through financial and technical resources for ‘country-led national education plans’; and

• support access to education for girls in emergency situations, migrant, internally displaced and refugee girls and those in humanitarian crises and conflict situations.

Finally, the resolution requests the OHCHR to prepare a report to be presented at the June 2017 session of the Human Rights Council on the topic: ‘the realization of the equal enjoyment of the right to education by every girl’, ‘obstacles limiting effective access’ and ‘make recommendations on appropriate measures to eliminate gender disparities in education by 2030, taking into account Goal 4 of the SDGs’.

There was also a resolution on youth and human rights (A/HRC/RES/32/1) in which the Council decided to convene a panel discussion during its September 2016 session on ‘Youth and human rights’, with the objective ‘to identify, challenges, best practices and lessons learned in the exercise of human rights by young people as well as relevant opportunities for empowerment of youth in the exercise of their rights’.

 

Right to health

The Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (A/HRC/32/32), Mr Dainius Pūras, was presented at the 32nd session, together with his mission reports on Paraguay and Nigeria.  The report explores the right of adolescents (aged 10 – 19 yrs) to the enjoyment of the highest attainable standard of physical and mental health and on implementation of measures necessary to guarantee optimum health and development in accordance with the unique nature of adolescence.

The report focuses in particular on mental health, substance use and abuse and drug control, and the rights to sexual and reproductive health because of the particular challenges they pose in balancing adolescents’ emerging autonomy with their right to protection.

The Special Rapporteur recognises adolescence as a period of transition and a critical developmental stage which lays the foundations for future health.  He identifies challenges and opportunities (creativity, energy, use of social media and technologies) particular to adolescents and looks at the specific social determinants of health for adolescents.

In relation to mental health the Special Rapporteur recommends that States:

• Formulate and implement a national adolescent mental health policy with a spectrum of preventive and curative services, in consultation with adolescents, that is sensitive to their rights and needs and includes independent monitoring of mental health facilities; and

• Implement adolescent-friendly psychosocial interventions at the community level in a manner that is ethical, evidence-based and consistent with adolescents’ rights, and avoid institutionalisation and the excessive use of psychotropic medications.

In relation to sexual and reproductive rights, the Special Rapporteur recommends States:

• adopt a comprehensive sexual and reproductive health policy for all adolescents which ensures universal access to adolescent-friendly, non-judgmental services;

• decriminalize abortion and ensure access to confidential and non-discriminatory sexual and reproductive health information, services and goods;

• guarantee the provision of age-appropriate, comprehensive and inclusive sexuality education, based on scientific evidence and human rights, as part of the school curriculum; and

• repeal laws criminalizing or discriminating against individuals on the basis of their sexual orientation or gender identity.

In relation to substance abuse and drug control, he calls for the closing of drug detention centres and the development of prevention and harm reduction policies and dependence treatment services.

The Special Rapporteur also presented a Study on ‘Sport and healthy lifestyles as contributing factors to the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (A/HRC/32/33).

Resolutions

First, there was a resolution focusing on mental health and human rights (A/HRC/RES/32/18). Portugal and Brazil were the main sponsors of the resolution which was adopted by consensus. A short and pithy resolution, it reaffirmed State obligations to ensure that mental health policies and services comply with human rights norms and recognised the need for active steps to fully integrate a human rights perspective into mental health services.

The resolution mandates the OHCHR to prepare a report to the March 2017 session of the Council, on ‘the integration of a human rights perspective in mental health and the realisation of the human rights of persons with mental health conditions or psychosocial disabilities or persons using mental health services'.

In addition, there was a resolution on access to medicines and the right to health (A/HRC/RES/32/15) which was adopted by consensus after oral revisions. This resolution presented by the core group of Brazil, China, Egypt, India, Indonesia, Senegal, South Africa and Thailand, addresses the on-going debates over access to medicines and intellectual property rights that have played out in the WTO and the WHO.  The resolution calls on States to recognise that access to medicines for all is a fundamental element of the right to health and to ensure access to medicines, including through its negotiations and agreements in the WTO and decides to convene a panel discussion on this topic at the March 2016 session of the Council.

Some of the interesting paragraphs include:

• recognising the interrelatedness between poverty and the right to health and that ill health can be both a cause and consequence of poverty;

• recognising that universal health coverage implies access to essential and affordable medicines;

• regretting the high number of people without access to affordable, safe, efficacious and quality medicines and expressing deep concern at recent outbreaks of highly infectious pathogens with epidemic potential;

• reiterating that health research and development should be needs-driven, evidence-based, guided by the core principles of affordability, effectiveness, efficiency and equity and considered a shared responsibility;

• calling on States to continue to collaborate on models and approaches that support the delinkage of the costs of new research and development from the prices of medicines, vaccines and diagnostics for diseases that predominantly affect developing countries; and

• calling for policy coherence in the areas of human rights, intellectual property and international trade and investment when considering access to medicines.

Finally, there was a resolution put forward by Algeria, Iran, Pakistan, China, Brazil, Egypt and South Africa on ‘enhancing capacity building in public health’ (A/HRC/RES/32/16). The resolution recognised the importance of strong public health systems, particularly in the context of epidemics and of investment and international co-operation.  It also emphasised the vital role of civil society, of women’s participation and of ensuring universal access to sexual and reproductive health-care services.

The resolution urged States to increase investment, strengthen capacity building, promote access to medicines including through the Agreement on Trade-Related Aspects of Intellectual Property Rights, increase aid to developing countries and recognise the importance of the transfer of technologies.

Finally, the resolution decided to convene a panel discussion at the Council’s 35th session (June 2017) with the objective of exchanging experiences and practices on realising the right to health by enhancing capacity building in public health.

The EU made an ‘Explanation of Position’ in respect of this resolution which complained of a lack of transparency in the negotiations and some ‘unpredictable changes of position by the core group’. It also expressed reservations about the over-emphasis on access to medicines and said the language in PP4 and OP3 was not considered consensual by the EU.

 

Extreme Poverty and Human Rights

The Special Rapporteur on extreme poverty and human rights, Mr Philip Alston, presented a challenging and thought-provoking report (A/HRC/32/31) to the Council detailing his contention that economic and social rights are marginalized in the human rights sphere.

The Special Rapporteur begins by arguing that contrary to the conventional wisdom that economic and social rights have made significant advances in recent years and enjoy widespread constitutional recognition and justiciability, in fact social and economic rights ‘remain largely invisible in the law and institutions of the great majority of States’. Paradoxically, constitutional recognition has not translated into legislative recognition, Courts remain resistant to acting on economic and social rights, principal national-level institutions for promoting human rights ignore economic and social rights and national level accountability mechanisms for economic and social rights are rare.

This marginalization is evident also in the general assumption that economic and social rights are synonymous with development and poverty alleviation. Yet this is not the case: development initiatives might not be rights promoting or protecting. The Special Rapporteur explains the importance of treating economic and social rights as human rights, rather than desirable goals, development challenges or social justice concerns, since human rights: focus attention on the rights of individuals; direct policymakers to the internationally agreed standards and jurisprudence and accountability principles; introduce an element of immediacy; and recognize and insist on dignity and agency (participation) of all individuals (universality) and are intentionally empowering.

The report discusses the consequences of neglecting economic and social rights, including the: undermining of indivisibility; fracturing of the hard-fought ideological and political compromise reflected in the UDHR; diminished prospects for eliminating extreme poverty and extreme inequality; production of conditions conducive to violent extremism; and legitimacy and credibility of the human rights enterprise, particularly in the ‘eyes of the billions of people whose fundamental needs continue to be of only minor relevance to the core human rights agenda’.

The Special Rapporteur proposes a framework for ensuring that economic and social rights are recognized and implemented: recognition, institutionalization and accountability (RIA). He then examines international monitoring of economic and social rights by the Human Rights Council through the UPR and by the Committee on Economic, Social and Cultural Rights.  In respect of the UPR, Mr Alston considers the significant under-representation of economic and social rights in the UPR recommendations and especially the recognition, institutionalization and accountability of such rights.

Finally, the Special Rapporteur considers the record of NGOs and finds encouraging developments, but that ‘some major international NGOs continue to approach economic and social rights in ways that do very little to change the marginality of those rights within the field.’ He encourages NGOs to focus their efforts on advocating for the ‘basic building blocks of recognition, institutionalization and accountability’ before delving into the more sophisticated techniques for monitoring and promoting economic and social rights that preoccupy many international NGOs.

 

Women’s economic, social and cultural rights

As is traditional for the June session of the Council, there were a number of important initiatives on women’s rights. On 16 June the Council held its annual full day discussion on women’s rights. The day was comprised of 2 panel discussions, which both involved significant discussion of economic, social and cultural rights.

The first panel focused on ‘violence against indigenous women and girls and its root causes’, and addressed: challenges and good practices and underlying discrimination and marginalization; eliminating structural and institutional discrimination and harmful stereotypes; promoting access to protection measures and services; and ensuring accountability for perpetrators of violence and access to an effective remedy for survivors. It also specifically looked at the role of indigenous women and girls in addressing the violence directed against them.  The panel included the President of the Council, the Deputy High Commissioner for Human Rights, a Member of EMRIP, the Special Rapporteur on Violence Against Women and a number of indigenous women representatives.

Panelists explained that violence against women could not be understood in isolation because it is a cause and consequence of subordination, exclusion and discrimination.  The link to poverty and denial of social and economic rights such as access to land and productive resources, housing, education and social security were emphasized as both root causes and as critical to protection and prevention. Some speakers highlighted the impact of early child marriage, harmful practices and negative stereotypes of women.

The international legal framework of State obligations to eliminate discrimination and violence against women was also outlined and the challenges of access to justice for indigenous women and ultimately, impunity for violence against them, was highlighted.  An unofficial summary of the discussion can be found HERE.

The second panel focused on ‘women’s rights and the 2030 Agenda for Sustainable Development: Delivering on the promise to leave no one behind’.  This panel addressed how to operationalize the Sustainable Development Goals in compliance with human rights obligations, particularly related to gender equality and paying attention to the impact of intersecting forms of discrimination.

The discussion highlighted the potential for the SDGs to significantly advance women’s rights but underscored the need for leadership, investment, accountability and participation, in order for Goal 5 (gender equality) to be realised. A number of speakers linked the achievement of gender equality to addressing the higher levels of poverty of women and inequalities (Goal 10).  Some speakers also discussed the need for increasing women’s participation in economic spheres and the need for taxation reform and recognition of the unpaid work of women.  An unofficial summary of the panel discussion is HERE.

 

Violence against women

The Special Rapporteur on violence against women, its causes and consequences, Dr Dubravka Simonović, in her first report (A/HRC/32/42) to the Council since commencing last August, outlined her vision and priorities for the mandate:

• The use of data on violence against women as a tool for prevention;

• The establishment of a ‘gender-related killings of women watch’;

• Protection and services for women survivors of violence;

• Connections between fundamentalism, extremism and violence against women;

• Security and safety of girls and women in the context of forced displacement and refugees; and

• Online violence against women.

Resolution A resolution on violence against women (A/HRC/RES/32/19) was presented by the traditional main sponsor, Canada, and focused on violence against indigenous women and girls.  The resolution was adopted by consensus with at least 82 co-sponsors and included emphasis on the links between the denial of social and economic rights for women and girls and particularly indigenous women and girls, and violence against them.  The resolution renewed the mandate of the Special Rapporteur and also:

• Recognised that the absence of gender statistics and disaggregated data impeded efforts to design successful intervention strategies and encouraged States to improve the collection, harmonization and use of statistics and data;

• Expressed concern about the low levels of birth registration of indigenous women and that this makes them more vulnerable to exclusion, discrimination, violence, exploitation and abuse and called on States to address this;

• Emphasized the importance of training, sensitization and capacity building of public officials, the judiciary, the police and military and those working in the areas of education, health, social welfare and immigration;

• Emphasised a multi-sectoral approach to prevention and protection strategies, including health and public housing services;

• Encouraged the media to examine the impact of gender-role stereotypes that foster gender-based violence and inequalities and to promote zero tolerance for such violence;

• Called on States to take measures to empower women, strengthen their economic autonomy and ensure their participation in society and decision-making and by implementing social and economic policies guaranteeing access to education, financial resources, decent work, land and property rights and inheritance rights.

 

Discrimination against women in law and practice

The Working Group on discrimination against women in law and practice presented its report (A/HRC/32/44) to the Council focusing on women’s health and safety, the barriers to women’s autonomous, effective and affordable access to health care and how the instrumentalisation of women’s bodies impedes their equal rights to health and safety.

Unpacking the meaning of equality in women’s health and safety, the report points out that:

‘Substantive equality in the area of health and safety requires differential treatment. …. Women have specific biological functions, are exposed to health problems that affect only women, are victims of pervasive gender-based violence and, statistically speaking, live longer than men, resulting in their greater need to access health services frequently and into older age. Hence, women and girls experience the negative effects of insufficiencies in health-care services more intensively than men.’

It goes on to discuss discriminatory practices which result in denial of access to health services and explains that a holistic approach, which considers women’s whole life-cycle, is needed. The Working Group also identifies multiple and intersecting forms of discrimination and how it impacts women’s health and safety, specifically addressing: women and poverty, rural women, women migrants, women with disabilities, indigenous women and other groups.

The report calls for autonomous, affordable and effective access to health care for women and for States to take measures to combat the instrumentalisation of women’s bodies.

Resolution The annual resolution on discrimination against women (A/HRC/RES/32/4) was adopted without a vote.  The resolution took up a number of the elements in the Working Group’s report, although was noticeably weaker and avoided the more robust recommendations relating to the instrumentalisation of women’s bodies. Importantly, the resolution renewed the mandate of the Working Group and urged States to: ‘ensure equal access to and equal treatment of women and men in education and health care, and to enhance women’s sexual and reproductive health …. training health providers and other health-care workers on gender equality and non-discrimination, respect for women’s rights and dignity ….. abolishing discriminatory practices that hinder women’s access to health services, and providing age-appropriate, sexual health information, education and counselling, based on scientific evidence and human rights’.

 

Environment & Climate change

There were a number of initiatives on human rights and the environment and climate change at this session of the Human Rights Council.

OHCHR study - climate change and the right to health OHCHR submitted a study on the relationship between climate change and the right to health (A/HRC/32/23). The study was informed by the panel discussion on this topic, held at the March 2016 session of the Council, together with stakeholder submissions.  The report summarises the now familiar information about the negative impacts of climate change on health, rights and the social and environmental determinants of health. It identifies some of the key impacts of climate change on health: heat-related; air pollution; extreme weather events and natural disasters; expanding disease vectors; nutrition; and mental health impacts. It also discusses the disproportionate vulnerability to adverse impacts, of those already marginalized, identifying gender, children, migrants and indigenous peoples, as relevant groups.

The study also considers the inter-linkages between climate change and the human right to health. Articles 1 & 4 of the UNFCCC refer to the the health impacts of climate change and the human right to health was linked to climate change first in a 2010 decision of the Conference of the Parties (UNFCCC) and most significantly in the human rights language in the 2015 Paris Agreement on Climate Change.

It also discusses the importance of a human-rights based approach to health and climate change, which has been affirmed in a number of international climate change and development agreements. It identifies the key elements of a human-rights based approach and how they should be integrated into climate change adaptation and mitigation measures. The report insists that respecting rights is not enough: States must take affirmative action to respect, protect, promote and fulfil all human rights for all persons, emphasizing participation, accountability, transparency and non-discrimination. It points out that following these principles will lead to more sustainable interventions with potential health co-benefits.

Resolution

A core group of Bangladesh, the Philippines and Vietnam, presented the now annual resolution on human rights and climate change, which was adopted without a vote as orally revised (A/HRC/RES/32/33) and co-sponsored by at least 53 States. Perhaps as a reflection of the growing focus and consensus on climate change following the Paris Agreement, the number of co-sponsors has grown and now includes a number of ‘Northern’ States.

Nevertheless, the fault lines that were almost the undoing of the Paris COP last year, remain evident in the Council discussions on climate change.  Whilst supporting the resolution, the European Union made an ‘Explanation of Position’ which noted that whilst it is important to encourage consideration of human rights principles in the UNFCCC work, the Council should not provide an alternative forum for climate change work.  Further it underlined that all countries are vulnerable to climate change and that human rights must be respected regardless of the economic conditions. The EU stressed that the principle of common but differentiated responsibilities can never be applied to human rights and it is not the only relevant principle in climate action.

The resolution:

• Calls particular attention to the impacts of climate change on children, migrants and non-nationals and on economic, social and cultural rights;

• Welcomes the Paris Agreement and affirms that human rights obligations and principles ‘have the potential to inform and strengthen international, regional and national policymaking in the area of climate change’;

• Acknowledges the principle of common but differentiated responsibilities which emanates from the climate change negotiations and that responses to climate change should avoid adverse impact on social and economic development;

• Calls upon States to enhance international co-operation for developing countries and implement the UNFCCC commitments;

• Decides to hold a panel discussion at its March 2017 session on ‘the adverse impact of climate change on States’ efforts to realize the rights of the child and related policies, lessons learned and good practices’; and

• Requests the OHCHR to conduct a study on ‘the relationship between climate change and the full and effective enjoyment of the rights of the child’ to be submitted before the Council’s June 2017 session.

 

Business and Human Rights

The 32nd session also saw the presentation of the report of the Working Group on the issue of human rights and transnational corporations and other business enterprises (A/HRC/32/45) which looked at state-owned or controlled enterprises.

It clarifies State duties in respect of such enterprises, outlining the ‘additional steps’ required to protect against human rights abuses required by Guiding Principle 4 of the UNGPs and the benefits of such steps in terms of policy coherence, international legal obligations (human rights treaties), reputation and credibility. The Working Group emphasies that States should ‘lead by example’ and suggests a range of measures to operationalize these ‘additional steps’.

The Working Group describes the significant and growing assets and influence of State-owned enterprises in the global economy and the trend for them to operate globally and outside traditional sectors. It recognises the link between corporate governance and human rights and the usefulness of the corporate governance framework for implementing human rights requirements.  In this respect it highlights the OECD Guidelines on Corporate Governance of State-Owned Enterprises and the OECD Guidelines for Multinational Enterprises, as helpful guidance which is compatible with human rights responsibilities.

Suggestions for operationalizing the requirement to take additional steps include:

• setting and communicating human rights expectations of SOEs;

• using ownership arrangements to set and manage expectations;

• using the relationship between the State and company board to set expectations and provide the mandate to respect human rights and ensure monitoring and accountability and require human rights due diligence;

• establish oversight and follow-up mechanisms, such as targets and goals and assessment tools and auditors;

• promote capacity-building, awareness-raising and training on human rights standards;

• establish disclosure, transparency and reporting requirements relating to human rights;

• ensure access to effective remedies for victims of abuse through complaints policies and grievance mechanisms, litigation policies and co-operation with State-based non-judicial mechanisms.

In addition, the OHCHR submitted its report on ‘Improving accountability and access to remedy for victims of business-related human rights abuse’ (A/HRC/32/19) which was the culmination of the substantial 2-year Access to Remedy project of OHCHR, mandated by Council resolution 26/22.

The report sets out ‘Guidance’ to States on how to improve accountability and access to remedy for victims of business-related human rights abuse, at the domestic level. The first part of the report explains the urgent need for action, the scope, methodology, structure and target audience (State agencies and judicial bodies) of the Guidance and identifies three cross-cutting issues that are important to understand for effective implementation of the Guidance: structural and managerial complexity of business enterprises (separate corporate personality, subsidiaries); challenges particular to cross-border cases and the importance of international cooperation; and the need for policy coherence.

The Guidance is comprised of 'policy objectives' for domestic legal responses to this problem. For public law offences the Guidance addresses:

• principles for assessing corporate legal liability, which discusses:

  • robust and detailed laws to ensure deterrence and remedy for business-related human rights abuse, corporate criminal liability, evidential burdens of proof, secondary corporate legal liability, due diligence measures, use of strict liability;

  • expectations of standards of management and supervision within corporate groups and supply chains, with respect to identification, prevention and mitigation of human rights impacts;

  • deterrence and remedy in the event of corporate contributions to business-related human rights abuses by 3rd parties;

• supporting the work of State investigation and enforcement agencies, which discusses:

  • clear mandate and political, resource and training support for agencies, but also independence in law and practice;

  • effective working relationships and communication links with other domestic regulatory bodies (eg: regulation of labour, environment)

  • transparency and accountability with respect to enforcement discretion;

  • sensitivity to the safety of victims and systems to protect them.;

• co-operation in cross-border cases (mutual legal assistance with detection, investigation, prosecution and enforcement in cross-border cases); and

• sanctions and other remedies.

For private law offences, the Guidance addresses:

• principles for assessing corporate legal liability, which discusses largely the same issues identified under public law offences above;

• overcoming financial obstacles to private law claims;

  • Access to sources of litigation funding (legal aid, pro bono, collective redress mechanisms, contingency fees, litigation insurance);

  • Reduction of costs (court fees/ waivers, mediation, rules on allocation of legal costs, security for costs, use of communications technologies);

• co-operation in cross-border cases (access to legal assistance from State agencies and judicial bodies in other States for evidence gathering);

• private law remedies (range of remedies available, consultation of claimants, monitoring implementation, prohibit tax deductibility of monetary damages paid by companies).

The Guidance is accompanied by an Addendum report (A/HRC/32/19/Add.1) which sets out Model terms of reference for a domestic review of laws relevant to business-related human rights abuses and ‘Explanatory Notes to the guidance’ (explains key terms, concepts and contextual issues).

Resolution

The bi-annual resolution on business and human rights was also considered at the 32nd session and was adopted without a vote, after oral revisions, with over 60 co-sponsors (A/HRC/RES/32/10). The focus of the resolution was ‘improving accountability and access to remedy’ following the topic of the report of the OHCHR. Interestingly, the resolution did not pick up the topic of the Working Group’s report, State-owned enterprises.

The resolution noted the OHCHR report and encouraged States to consider undertaking the legal review recommended in the report, to develop a strategy for improving accountability and access to remedy for business-related human rights abuses and improve the effectiveness of international co-operation between State agencies and judicial bodies with respect to law enforcement.

One of the oral revisions of the resolution was to include a paragraph inviting States to ‘work through intergovernmental processes’ to enhance accountability and access to remedy, in a clear reference to the Intergovernmental working group on transnational corporations and other business enterprises with respect to human rights.

In addition, the resolution requested the Working Group on business and human rights to prepare a study on ‘best practices and how to improve the effectiveness of cross-border cooperation between States with respect to law enforcement on the issues of business and human rights’ for the June 2017 session of the Council and to include as an agenda item at the 2016 annual Forum on Business and Human Rights ‘challenges, opportunities and lessons learned when improving accountability and access to judicial remedy for business-related human rights abuses’.

For the OHCHR Access to Remedy project, the Council requested it continue its work and convene 2 consultations ‘to identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms’ and submit a report thereon for the June 2018 Council session.

 

Other initiatives of interest:

• Perhaps the biggest news of the session was the establishment of a new special procedures mandate on protection against violence and discrimination based on sexual orientation and gender identity. The Council mandated (A/HRC/RES/32/2) an Independent Expert for a period of 3 years to:

  • assess the implementation of existing international human rights instruments with regard to ways to overcome violence and discrimination against persons on the basis of their sexual orientation or gender identity and to raise awareness of violence and discrimination against persons on that basis; and

  • identify and address the root causes of violence and discrimination.

• The other controversial resolution at this session was on protecting civil society space (A/HRC/RES/32/31) in which 15 hostile amendments proposed by the Russian Federation and others, were fought off by the core group of Chile, Ireland, Japan, Sierra Leone and Tunisia, and supporters. See the International Service for Human Right’s analysis HERE.

• A resolution that extended the mandate of the Special Rapporteur on the right to food (A/HRC/RES/32/8).