Geneva Updates
Our strategic presence in Geneva sets us apart as the sole NGO exclusively committed to economic, social, cultural, and environmental rights. This permits us to play a pivotal role in promoting and protecting these rights globally.
GI-ESCR adopts 2016 - 2019 Strategic Plan
The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) began in 2010, as an initiative to advance the realization of economic, social and cultural (ESC) rights globally, tackling the endemic problems of poverty, social injustice and inequality through a human rights lens. In the short time since its inception, GI-ESCR has provided world-class technical support and achieved groundbreaking outcomes that are respected within and beyond the human rights community. As a result, it has become increasingly recognized as a leader in the area of ESC rights advocacy. For example, in 2014, the UN High Commissioner for Human Rights invited a select few non-governmental organizations to meet with him to discuss priorities. The large traditional players (organizations like Amnesty International, Human Rights Watch, etc.) were at the table, and it is an honor to be able to say that so was GI-ESCR. Even though we are undoubtedly smaller, and far newer as an organization, this recognition demonstrates that that GI-ESCR is valued for high quality advocacy work and the unique perspective provided to the Geneva human rights scene and beyond. We think it bodes well for the fact that we are a unique organization, playing an important role, and making a contribution which is not only significant, but urgently needed in today’s world. Our work has also been recognized by networks of peer organizations at both the international and national levels. For instance, GI-ESCR has been appointed to serve on the Steering Committee of the ESCR-Net Strategic Litigation Working Group, is part of the core leadership of the ESCR-Net Women and ESC Rights Working Group, and is an active member of the ESCR-Net Corporate Accountability Working Group. We have been elected, and subsequently twice reelected, to serve on the Steering Committee of the ETO Consortium (extraterritorial obligations). In recent years, we have also been sought out by UN agencies and partners to contribute expertise on specific projects advancing rights.
With growth in credibility, reputation, and expectations, the Co-Directors and Board of Directors of GI-ESCR agreed that the time is right for a transition from organizational “start up” to organizational “step up.” 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 with expertise, and an appreciated respect for local actors and agency. These qualities and core values must be nurtured and sustained as growth and greater impact are pursued in this next phase. Organizations and institutions in both the private and non-profit sector do not always get this transition right and find the right balance between too much/too little ambition, structure, staff, change, vision, growth, and resources. The GI-ESCR is at a cross roads, and has the desire and ability to get it right.
The 2016 - 2019 Strategic Plan, therefore, is less a rigid, defined plan with given metrics, and more a living document and guiding framework, vision, values and principles for making intelligent choices and actions. Often strategic plans are already outdated by the time they are approved and implemented. Effective organizations in today’s world must be strategic in real time, and continuously thinking, acting, and learning from their work and their rapidly changing and challenging contexts. Getting it right and stepping up mean building on:
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strengths and accomplishments;
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partnerships and actions based on credibility and respect;
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the on-going reading and understanding of global trends and the global context of human rights -- and understanding issues that can be leveraged;
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the thoughtful and rigorous selection of strategic program priorities; and
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developing organizational capacity, and resources to pursue them.
Therefore, the Strategic Plan seeks to build upon GI-ESCR’s innate strengths and distinct placement in the field. Within a consultative process of strategic planning and organizational development, GI-ESCR seeks to clarify its organizational narrative, refine its organizational methodology, identify strategic pathways for future growth, and address some of the institutional challenges that have arisen as a consequence of growth and increasing expectation. The aims of the Strategic Plan and corresponding organizational development plan are to ensure that GI-ESCR is well placed within its field to make meaningful contributions; to ensure that organizational, administrative and support capacities are developed to implement the plan; and that organizational values, funding and sustainability are progressively aligned and enhanced over the 2016-2019 period and beyond. Another intention of the process is to build an organizational environment and culture that is agile, nimble, and has systems for continuous learning for effectiveness and impact.
ESC rights related resolutions from the 70th session of the UN General Assembly’s Third Committee
ESC rights related resolutions from the 70th General Assembly’s Third Committee
There were several positive economic, social and cultural (ESC) rights initiatives during the 70th session of the UN General Assembly’s Third Committee’s meetings in October/ November 2015, including important developments on the rights to water and sanitation, the rights of rural women, and human rights defenders.
Two sepatate but interconnected rights: Water and sanitation
In a historic resolution, a resolution on water and sanitation was passed which for the first time recognized two separate rights: a right to safe drinking water, and a right to sanitation. This was a very positive step forwards in the development of the rights, particularly as the resolution was again passed by consensus with 52 co-sponsors. This annual resolution sponsored by Spain and Germany has been on a positive trajectory since the General Assembly’s 2010 resolution[1] which formally declared the right to safe drinking water and sanitation a stand-alone right[2], deriving from the right to an adequate standard of living in Article 11 of the ICESCR. Progress was achieved in the 2014 Human Rights Council resolution (A/HRC/27/7) which contained the full definition of the right[3] (it was still recognised as one right at that stage) which comes from General Comment No 15. of the UN Committee on Economic, Social Rights (CESCR) on the right to water.
The case for the recognition of two separate rights was made by the former Special Rapporteur on water and sanitation in her 2009 Report to the Human Rights Council on access to sanitation[4] and supported by a Statement of the CESCR in 2010.[5] Strong civil society advocacy efforts have also been an important and driving force in achieving the separate recognition of the two rights.
Whilst the GA resolution still refers to the ‘human right to safe drinking water’ which seems to ignore the importance of water for other non-drinking uses, it describes the content of the right as for ‘personal and domestic use’. This language recognises that the right extends beyond ‘drinking water,’
The resolution also includes a welcome emphasis on women, their leadership and participation in decision-making on water and sanitation management and efforts to address the unequal burden of household water collection on women and girls which impacts access to education and exposes women and girls to violence.
There is also an important call on States to eliminate inequalities in access to water. This is significant in the context of the SDGs and to avoid the problems faced by the MDGs which often ignored inequalities and discrimination in access to water and sanitation services. The paragraph specifically commits to eliminate inequalities with respect to race, gender, age, disability, ethnicity, culture and religion. However it is noteworthy that the commitment with respect to inequalities in a second category, rural-urban disparities, slum residence and income levels, is only to ‘progressively eliminate inequalities’.[6] In this respect para 5(d) is also important as it asks States to ‘identify patterns of failure to respect, protect or fulfil’ the rights and ‘address their structural causes in policymaking and budgeting’. This clause attempts to tackle the discrimination and inequality built into systems and structures that prevents those living in poverty from realising their rights.
Improving the lives of rural women
The ‘improvement of the situation of women and girls in rural areas’ was the subject of a comprehensive resolution[7] adopted by the General Assembly without a vote in November 2015. The resolution was a follow-up to a similar resolution 2 years ago (A/RES/68/139 (18 December 2013)) which had asked the Secretary General to prepare a report on implementation of that resolution. The 2015 resolution takes note of the Secretary General’s report and makes recommendations to States.
The report of the Secretary-General (A/70/204) sets out efforts by States to address the obstacles and challenges that impede progress towards the economic empowerment of rural women, especially the poorest and most marginalized, and to enable them to improve their lives and livelihoods. It discusses advances and continuing challenges in: sustainable and gender-responsive agricultural and rural development; recognizing and redistributing rural women’s unpaid care work; employment, decent work and social protection; access to land and productive resources; and food security and nutrition.
There were several important recommendations offered to States, including:
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supporting rural women’s full and equal participation in decision-making at all levels, including through affirmative action;
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integrating a gender perspective into the design, implementation and evaluation …. development policies, plans, programmes, … budgets …. the governance of natural resources, leveraging the participation and influence of women in managing the sustainable use of natural resources[8];
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increasing knowledge, awareness and support for the elimination of harmful practices[9] and ensuring universal access to sexual and reproductive health and reproductive rights;
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valuing and supporting the critical role of rural women … in the conservation and sustainable use of traditional crops and biodiversity for present and future generations…[10];
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ensuring women’s and girls’ unpaid work is recognised and promoting shared and equitable responsibility for unpaid work and care responsibilities within the household;[11] and
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implementing laws to ensure that rural women have equal rights to own and lease land and other property, including inheritance rights and access to capital and financial services.[12]
Other topics covered include: older women, women with disabilities, violence against women, the right to water, food security, developing women’s economic skills, equal access to decent work, access to labour saving technologies, climate change,[13] education and training and access to social protection for female-headed rural households.
On the whole, the recommendations in the resolution are very similar to those posed in the 2013 resolution, although some changes to reflect the expiry of the MDGs and move to the SDGs and some amendments to language around sexual and reproductive health and rights[14], and to refer to climate change.[15]
The resolution also asks the UN Commission on the Status of Women (CSW) and other UN bodies to give consideration to these issues and the Secretary-General to present a further report on its implementation at the General Assembly in 2017.
Given all we know about the links between realising the human rights of rural women and poverty alleviation, including achievement of many of the Sustainable Development Goal, it is encouraging to see the General Assembly’s giving attention to this important topic. The GA’s consideration of the human rights of rural women coincides with a number of other processes focused on this, which hopefully will continue to build momentum and political will around prioritising rural women’s rights. The CEDAW Committee’s forth-coming General Recommendation on Rural Women which will elaborate on the content of the rights in Article 14 of the Convention on the Elimination of all forms of Discrimination Against Women. Further, the African Commission on Human and People’s Rights is considering adopting a General Comment on Article 7(d) of the Maputo Protocol, focussing on women’s rights to land and property within the context of marriage and divorce.
Human rights defenders and ESC rights
Whilst the human rights defender resolution has traditionally focused on freedom of expression and association, amongst other rights, more recently there has been growing recognition and interest in the increasing link to ESC rights. We have known for some time that human rights defenders working on economic and social rights issues are at particular risk of harassment and violence from powerful State and non-State actors against whose policies and projects they protest. However, more recently there has been a proliferation of civil society reports confirming the growing number of defenders working on land and environment issues being killed, attacked, disappeared or harassed for their work. This trend is now being reflected in the resolution on human rights defenders in the General Assembly[16] which is sponsored by Norway. Whilst the resolution attracted some controversy when a vote was called for the first time in its 16 year history[17], its inclusion of elements focusing on the link with ESC rights was a welcome advance.
The resolution recognised the vital work of ESC rights defenders and raised concerns about threats and attacks against them and their work. Further, it highlighted the need to ‘respect, protect, facilitate and promote the work of those promoting and defending economic, social and cultural rights, as a vital factor contributing towards the realization of those rights, including as they relate to environmental and land issues as well as development’.[18] The other paragraph that bears on the situation of human rights defenders working on ESC rights, deals with consultations and dialogue.[19] Lack of (or inadequate) consultation or ability to participate in decision-making is a common complaint of those protesting violations of the right to adequate housing, water and sanitation, the right to health, the right to food and human rights issues relating to land and natural resources. Many of the Special Procedures mandate holders working on these issues and the CESCR (as well as other treaty bodies) have stressed the importance of the right to participation in the context of land and environment conflicts and economic development, including as an element in preventing conflict with local communities and avoiding human rights violations.[20]
The resolution ‘Reaffirms the utility and benefit of consultations and dialogue with human rights defenders related to public policies and programmes’. Whilst this an important concept to capture in the resolution, broader language which highlights the right to participation, not only of ‘human rights defenders’ but of ‘affected communities’, would strengthen it.
This is significant new language and we hope this focus will continue through the work of the Special Rapporteur on human rights defenders and the 2016 resolution in the Human Rights Council.
Contact:
Lucy McKernan
Geneva Representative
Global Initiative for Economic, Social & Cultural Rights
www.globalinitiative-escr.org
+41 (0)79 103 7719
[2] Closely followed by the September 2010 Human Rights Council resolution which affirmed that the right to water and sanitation was a legally binding right in international law, and adopted without a vote (unlike the July 2010 General Assembly resolution). For further information see: ‘Recognition of the Human Rights to Water and Sanitation by UN Member States at the International Level’ by Amnesty International & WASH United, https://www.amnesty.org/en/documents/ior40/1380/2015/en/
[3] Preambular Paragraph 21: Reaffirming that the human right to safe drinking water and sanitation entitles everyone, without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use and to have 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.
[5] UN Committee on Economic, Social and Cultural Rights, ›Statement on the Right to Sanitation‹ on 19 November 2010, UN Doc E/C.12/2010/1)
[7] A/C.3/70/L.24/Rev.1, adopted without a vote on 23 November 2015, see http://www.un.org/ga/search/view_doc.asp?symbol=A/C.3/70/L.24/Rev.1&referer=/english/&Lang=E
[16] A/C.3/70/L.46/Rev.1, 18 November 2015
[17] See http://www.ishr.ch/news/general-assembly-adopts-important-resolution-human-rights-defenders-face-opposition-china-and
[19] A/C.3/70/L.46/Rev.1 OP 12
[20] Report of the Special Rapporteur on the Right to Water and Sanitation: A/69/213, presented to the General Assembly in October 2014, see http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/490/08/PDF/N1449008.pdf?OpenElement
Take action during December to advance OP-ICESCR ratification!
Reminder-Action Circular Update
Key anniversary:
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December 10 – Adoption of the OP-ICESCR and Human Rights Day
Whether you are a member, ally or new to this struggle for access to justice, the NGO Coalition for the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR) invites you to engage in the global campaign:
Justice Now! Ratify to Protect all Human Rights.
The OP-ICESCR entered into force on May 2013, allowing individuals and groups to bring complaints to the UN Committee on ESCR for violations of their economic, social and cultural rights. As of today, 21 countries have become party to the OP-ICESCR, securing access to justice for their people at the international level. Visit here for more information on the OP-ICESCR.
December 10th, the Human Rights Day, is the 7th anniversary of the adoption of the OP-ICESCR.Many countries have signed the OP-ICESCR expressing their willingness to move forward and ratify/access it.
This anniversary provides an opportunity to call on all States to ensure the respect, protection and fulfillment of all human rights by becoming party to the OP-ICESCR.
Has your country ratified the OP-ICESCR? Check the status of your country here .
If not, explore important opportunities to push your country to ratify the OP-ICESCR:
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Your country may have signed the treaty (but not ratified); check here. Their signature demonstrates an intention to ratify the OP-ICESCR.
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If your country is a member of or candidate for the Human Rights Council, ratifying the OP-ICESCR would be an important demonstration of human rights leadership.
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If your country is being reviewed by the Committee on ESCR or approaching a Universal Periodic Review (UPR) before the Human Rights Council Countries, this is another important moment for advocacy. Some states make commitments to ratify the OP-ICESCR during these processes, so you might also look at recent commitments by your State.
Suggested Actions:
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Send a letter encouraging ratification of the OP-ICESCR to your Ministry of Foreign Affairs (MoFA) or other relevant officials involved in considering international commitments and treaties. If possible, get support from several organizations as co-signatories to the letter. Please download model letter here.
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Request a meeting with your MoFA or other relevant authorities: In your request, you might cite upcoming anniversaries and International Human Rights Day. For suggestions, please see Booklet 4of the Toolkit on the OP-ICESCR. Booklet 3 outlines arguments for why countries should ratify the OP-ICESCR.
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Write a blog, op-ed or press release highlighting these anniversaries and the reasons for ratification, if your country has not ratified, or celebrating access to justice at the international level, if it has ratified. This Q and A may be helpful.
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Build a national coalition for ratification, including other human rights and social justice organizations, unions, social movements, artists and other concerned people. You might start with an online petition or a public action/demonstration. Or invite others to join any of the actions above. For more information and ideas, please contact the NGO Coalition for the OP-ICESCR at
This email address is being protected from spambots. You need JavaScript enabled to view it. -
Raise public awareness through social media, posting Facebook messages and tweets about the OP-ICESCR. You can share our Commitment Stamp with followers and ask them to use it for a period of time in their Facebook and Twitter profiles. Suggested messages for December:
Status
Signed
Well done #[country]. You are one step closer to make access to justice for violations of ESCR a reality for all. Ratify the OP-ICESCR and show leadership in the realization of these rights [link to Statement/press release/petition or/Booklet 3-Why States should Ratify]
Move forward #[country] and #RatifyOPICESCR to grant access to justice for all [link to Statement/press release or petition/Booklet 3 –Why States should Ratify]
More than 300 million of people can turn to the UN if their economic, social and cultural rights are violated. They live in one of the 21 countries that have ratified the OP-ICESCR [link to Map].
To mark the 7th anniversary of the adoption of the OP-ICESCR, we urge that the government of [country] to take the next step and ratify the OP-ICESCR. [link to Statement/press release/petition or Booklet 3 on Why States should Ratify].
We call on #[country] @governmentAccount to join others and ensure access to justice for human rights #RATIFYOPICESCR (link to Booklet3-Why States Should Ratify)
Not yet signed or ratified
Many countries— Argentina, Mongolia, Cabo Verde and France—have ratified the OP-ICESCR and secured a new way for their people to access justice if their human rights are violated. Don’t let the government leave us out! We call on #Country to ratify[link to Statement/press release/petition/Booklet 3]
Great news! Victims of rights abuses in 21 countries can turn to UN for justice. What about people in #[country]? [Link to map with ratifications/signatures]
New protection for economic, social and cultural rights a reality for 21 countries. We call on #[country] to #RatifyOPICESCR [link to Statement/press release/petition/Booklet3]
All
Imagine you have been forcibly evicted from your home, but the law in your country offers you no protection and no compensation. What do you do? Who do you turn to?
If you live in one of these 21 countries that have ratified the OP-ICESCR [link to map], you can now turn to the UN for justice! But what if you live in Germany, Brazil or South Africa? [link to Statement/press release/petition/Booklet 3]
21 countries have now strengthened access to justice for rights! #RatifyOPICESCR [link to map]
Ratified
These countries[LINK TO MAP] have ratified the OP-ICESCR. We call on States to follow their example and grant access to justice for all. [link to Booklet3]
We call on #[ratifyingcountry] to encourage its peer[#country] to move forward and #RatifyOPICESCR [link to Booklet3]
Please let ESCR-Net know if you are planning actions. They are happy to support. Together we can amplify our impact! Please share your plans with Ivahanna Larrosa, NGO Coalition Campaign Coordinator at:
Economic, social and cultural rights: exploding myths and building consensus
by Lucy McKernan, Geneva Representative of the Global Initiative for Economic, Social and Cultural Rights November 19, 2015 Blog, Contemporary and emerging human rights issues, International human rights institutions, mechanisms and processes
Beyond matters touching upon religion or belief, or on so-called ‘traditional values,’ it is difficult to think of an issue that divides members of the Human Rights Council (the Council) as much as the perceived disconnect between the importance placed on civil and political rights on the one hand, and economic, social and cultural rights (ESCRs) on the other. Twenty years after the Vienna Declaration declared all human rights to be ‘indivisible and interdependent and interrelated’ and called on ‘the international community (to) treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis,’[1] leading ESCR advocates continue to express concern that ESCRs ‘enjoy only second-rank status.’[2]
In June this year, the Special Rapporteur on extreme poverty and human rights, Professor Philip Alston, admonished States for what he alleged was their continued failure to place equal emphasis on all human rights. He asserted:
‘There are many contexts in which [ESCRs] are absent, marginalised or only half-heartedly taken on board. In circumstances in which [ESCRs] are not a fundamental part of the overall approach, there are no obvious limits to inequality.’[3]
Professor Alston also critiqued international NGOs for what he sees as their over-emphasis on civil and political rights at the expense of efforts to question the societal structures that create and maintain inequality and extreme poverty.[4] Recently, during meetings of the ‘Glion Process,’ a number of ambassadors likewise expressed their frustration at this perceived imbalance.
These critiques are not without merit. Member States of the UN tend to expend less energy and political capital on ESCRs[5] there are fewer ESCR resolutions and Special Procedures mandates;[6] generally ESCR Special Procedures mandates are not perceived as ‘heavy hitters’ and so do not receive the same political and financial support as their peers; ESCR resolutions do not attract the same level of scrutiny or negotiation;[7] States are less likely to make statements on ESCR issues of concern; and recommendations on ESCRs are significantly under-represented during sessions of the UPR Working Group.
So why does this imbalance persist?
One reason is perhaps linked to the common misconception that ESCRs are solely subject to ‘progressive realisation,’ meaning they are not immediately enforceable and States can implement them when they find the resources to do so. Whilst it is true that the Covenant on Economic, Social and Cultural Rights (CESCR) recognises that the realisation of some rights will take time (for instance, a State cannot implement universal, free primary education overnight), and thus does allow for ‘progressive realisation,’ it also contains obligations with an immediate effect. For example, Parties to the CESCR retain a positive obligation to regulate third parties with respect to the pollution of water sources, and a negative obligation not to forcibly evict persons in violation of their right to adequate housing. There are also immediate non-discrimination obligations such as the obligation to refrain from providing public health services in a discriminatory manner. Importantly, States have an immediate obligation to take concrete and reasonable steps towards fulfilling ESCRs, for instance by adopting a reasonable plan of action (through a participatory process) to implement universal, free, primary education, and by devoting reasonable resources towards the implementation of that plan.
The perception that ESCRs involve only positive obligations requiring the expenditure of resources also makes them less palatable to States. This point, especially in the context of scarcity and the unequal distribution of resources within and between countries, is notoriously difficult to navigate in international fora, and often places a strain on inter-governmental negotiations amidst calls for ‘international co-operation.’ Often, the question of resources within countries is considered a matter of national policy, and the question of resources between countries, is considered a matter for the WTO and other economic or commercial institutions. Yet, if ESCR are to be enjoyed and inequalities addressed, these issues must be dealt with in a meaningful and holistic manner. As the Special Rapporteur on extreme poverty explains:
‘Questions of the availability of resources and equality of access to those resources were largely eliminated from the most vibrant parts of the international human rights system, and relegated instead to the minor league discussions about economic, social and cultural rights.’[8]
Another reason for the continued ‘second class’ status afforded to ESCRs is the perpetuation of misinformation and thus misunderstanding about the ‘justiciability’ of such rights. The myth that ESCRs cannot be adjudicated before courts of law, and therefore cannot be enforced, continues to persist in international fora. This is partly due to the lack, prior to 2013, of an international adjudication body for the CESCR. There was therefore no UN treaty mechanism in place to rule on violations and produce jurisprudence.
Notwithstanding, even prior to 2013, the myth that ESCRs are not justiciable had been dispelled by a growing body of ESCR case law from domestic and regional courts around the world. To offer but a few examples: in 2002, the South African Constitutional Court adjudicated the right to health in relation to access to anti-retroviral medicines;[9] in 2001, the Indian Supreme Court, in response to a petition demanding the immediate utilisation of the country’s food stocks for drought relief and the prevention of hunger, upheld the Constitutional right to food and ordered the State to undertake specific measures such as implementing ‘food for work’ and school meals programmes;[10] and in 2010, the Colombian Constitutional Court found that a law imposing fees for State (public) primary schools was incompatible with the Constitutional right to education.[11]
Taken together, these misconceptions have lead to a sense, in some quarters, that ESCRs are too imprecise or abstract for a Human Rights Council that was primarily designed to deal with the violation of civil and political rights. The Council’s modus operandi seems to intuitively respond to urgent situations involving violence and the deprivation of liberty, rather than to on-going structural violations and macro-economic questions of redistribution that characterise ESCR debates. This situation has been further acerbated by the tendency of some Western States, most notably the US, to prioritise civil and political rights and side-line ESCRs, and the mirror-image tendency of some leading developing countries, especially from the NAM and LMG groupings, to point to poverty alleviation and socio-economic development (often summed up as ‘the right to development’) as a bigger priority than ‘Western’ obsessions over civil and political (i.e. liberal democratic) rights.
Meanwhile, the suffering and daily indignities faced by billions of people around the world – people for whom the full enjoyment of ESCRs is but a distant prospect – continue unnoticed.
So what is the answer? How can the UN human rights system be reformed to finally fulfil the promise offered by the Vienna Declaration?
One answer is that the international community must place a renewed and reinvigorated emphasis on the indivisibility and interdependence of all human rights. The Commission of Inquiry (COI) on the Democratic People’s Republic of Korea (DPRK) is a good example of such an ‘indivisibility approach.’ The report of the COI on DPRK explicitly stated that, under specific circumstances, violations of the right to adequate food and starvation amount to crimes against humanity and violations of the right to life.[12] Similarly, a recent report by the Working Group on enforced disappearances recognised that ESCRs violations are both a cause and a consequence of enforced disappearances and that people who are active in promoting ESCRs are in many cases at greater risk of enforced disappearance than those advocating for civil and political rights.
Another area where improvements are necessary is human rights ‘mainstreaming.’ As Professor Paul Hunt explained in a recent blog, mainstreaming should be, according to General Assembly resolution 60/251, one of the core competences of the Council. And yet, effective human rights mainstreaming across other UN policies and institutions, so crucial for the promotion of ESCRs, is largely absent from the Council’s list of achievements as it approaches its 10th anniversary in 2016. Professor Hunt rightly called for a radical rethink of how the Council delivers on its core mainstreaming mandate.
As well as being the 10th anniversary of the Council, next year will also see the 50th anniversary of both the CESCR and the ICCPR. As well as offering an opportune moment to consider the overall strengthening of the UN’s human rights pillar, 2016 should also therefore offer an important moment to recall and reinvigorate the call, made in Vienna in 1993, to ‘treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’
Lucy McKernan (@LucMcK) is the Geneva Representative of the Global Initiative for Economic, Social and Cultural Rights.
Notes
[1] Vienna Declaration and Programme of Action, 1993, operative paragraph 5;
[2] Report of the Special Rapporteur on extreme poverty and human rights, HRC/29/31, paragraph 50;
[4] SR report, paragraph 56(c)
[5] Notably, the US still has not ratified the ICESCR and continues to disassociate from parts of some ESCR resolutions and to attempt to water down many ESCR resolutions during negotiations.
[6] There are approximately 17 C&P rights mandates and 10 ESCR mandates and the country specific mandates tend to focus on C & P rights. For resolutions it is more difficult to calculate. In 2015, in terms of ESCR and C&P rights thematic resolutions, the numbers are relatively even. However, the 29 country specific resolutions in 2015 mostly focused on C & P rights violations.
[7] Other than in relation to ‘traditional values’ issues.
[8] SR report HRC/27/31, paragraph 56
[9] South African Minister of Health v. Treatment Action Campaign, 2002 (5) SA 721, July 5, 2002
[10] People’s Union for Civil Liberties v. Union of India & Ors, In the Supreme Court of India, Civil Original Jurisdiction, Writ Petition (Civil) No.196 of 2001
[11] Decision C-376/10 of the Colombian Constitutional Court
[12] DPRK COI Findings Report (A/HRC/25/CRP.1): Violations of the right to food and related aspects of the right to life – paragraphs 493 to 692; Starvation as a crime against humanity – paragraphs 1115-1137.
Updated Working Paper - Human Rights Law Sources: UN Pronouncements on Extra-Territorial Obligations
Extra-territorial obligations (ETOs) are increasingly recognized as essential to ensuring a global framework built on human rights. As a consequence, civil society is demanding that ETOs be applied through human rights monitoring, enforcement, accountability and remedial mechanisms, resulting in a growing body of pronouncements enforcing ETOs in practice. This Working Paper, updated November 2015, outlines the application of extra-territorial obligations (ETOs) by United Nations mechanisms, including the Concluding Observations of Treaty Bodies, General Comments and Recommendations adopted by Treaty Bodies, and within the work of UN Special Procedures including Special Rapporteurs and Independent Experts appointed by the Human Rights Council. As such, it provides a current understanding of how ETOs are monitored and enforced by UN human rights mechanisms.
The Working Paper is available HERE.
ESC Rights Update from Geneva: 30th session of the UN Human Rights Council, Fall 2015
September 2015
The 30th session of the Human Rights Council dealt with ESC and related rights issues such as: enforced or involuntary disappearances and economic, social and cultural rights; safe drinking water and sanitation; the education of girls; hazardous substances and wastes; indigenous peoples; capacity-building in public health against pandemics; human rights of peasants and persons working in rural areas; and the right to development.
We thank Alissa Noemie Ghils for her great work in assisting the Global Initiative for ESCR at the 30th session of the Human Rights Council and for authoring this version of our periodic Update from Geneva.
For a detailed report on Economic, Social and Cultural Rights at the 30th session of the Human Rights Council see here.
Opportunities to enforce corporate accountability: enforcing extra-territorial obligations
Originally published by the International Service for Human Rights
Article disponible en français ici.
Lea este artículo en español aquí.
Geneva – By Bret Thiele, Co-Executive Director of the Global Initiative for Economic, Social and Cultural Rights, which undertakes advocacy in the area of extra-territorial human rights obligations.
Corporations and other business enterprises have a substantial impact on the world in which we live, including on human rights. According to the World Bank, in 2012, 63 per cent of the 175 largest global economic entities were corporations, and corporate activities have impact on human rights around the globe. Consequently, human rights defenders have increasingly focused on developing tactics, strategies and mechanisms to hold corporate actors accountable to human rights obligations.
This advocacy has resulted in the human rights framework addressing this reality, including with two key initiatives. The first is the Guiding Principles on Business and Human Rights framework. The second is the move to a legally binding human rights treaty on corporate actors, an initiative which has emerged from strong civil society engagement. Both show various degrees of promise, but both also have drawbacks. The Guiding Principles are unfortunately crafted more as a corporate social responsibility framework rather than corporate accountability framework, as they are voluntary in nature, and they don’t apply the current comprehensive body of international law to corporate activity. And, while the process towards a legally binding treaty is welcomed and much needed, it will be some time before such a treaty is adopted and enters into force.
Fortunately, there presently is another means of holding corporate actors accountable by using the existing human rights framework, namely by holding States accountable to their respective obligations to protect human rights by directly regulating corporations and providing accountability and remedial mechanisms when those corporations do violate human rights. While the obligation to protect is well entrenched in the context of corporate activities at the domestic level, increasingly the extra-territorial obligation (ETO) to protect is being used to hold transnational corporations accountable for human rights impacts abroad.
Particularly driven by human rights defenders and civil society, the United Nations treaty bodies, those Committees mandated to monitor compliance with human rights treaties, have begun to seriously apply the extra-territorial obligation to protect human rights in the context of corporations and other business entities. For instance, building on earlier pronouncements, the Committee on Economic, Social and Cultural Rights, which monitors compliance with the International Covenant on Economic, Social and Cultural Rights, adopted its clearest articulation on the ETO to protect in the context of corporate accountability, expressing its concern “about the lack of adequate and effective measures adopted by the State party to ensure that Chinese companies, both State-owned and private, respect economic, social and cultural rights, including when operating abroad” and recommending that China:
(a) Establish a clear regulatory framework for companies operating in the State party to ensure that their activities promote and do not negatively affect the enjoyment of economic, social and cultural human rights; and
(b) Adopt appropriate legislative and administrative measures to ensure legal liability of companies and their subsidiaries operating in or managed from the State party’s territory regarding violations of economic, social and cultural rights in their projects abroad.
The Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights, has also enforced ETOs in this context. For instance it recently adopted Concluding Observations on Canada in which it expressed its concern “about allegations of human rights abuses by Canadian companies operating abroad … and about the inaccessibility to remedies by victims of such violations.” The Committee also regretted “the absence of an effective independent mechanism with powers to investigate complaints alleging abuses by such corporations that adversely affect the enjoyment of the human rights of victims, and of a legal framework that would facilitate such complaints.” The Committee went on to recommend that Canada “a) enhance the effectiveness of existing mechanisms to ensure that all Canadian corporations, in particular mining corporations, under its jurisdiction respect human rights standards when operating abroad; b) consider establishing an independent mechanism with powers to investigate human rights abuses by such corporations abroad; c) and develop a legal framework that affords legal remedies to people who have been victims of activities of such corporations operating abroad.”
The challenge now for human rights defenders is to keep this momentum going and to leverage these pronouncements with national level advocacy in order to achieve real positive change on the ground. Also, however, a concerted advocacy push should include the ETO to fulfill rights, by ensuring that corporate actors not only refrain from rights violations, but are required to ensure that their activities, including activities abroad, further the enjoyment of human rights around the globe.
For a comprehensive collection of UN pronouncements on extra-territorial obligations, including from treaty bodies, see the Global Initiative for Economic, Social and Cultural Rights’ Working Paper on UN Pronouncements on ETOs.
Additionally, the recent publication entitled Global Economy, Global Rights: A practitioners’ guide for interpreting human rights obligations in the global economy by ESCR-Net provides an examination of the application of ETOs by UN mechanisms.
Civil Society call for Gender Balance on Committee on Economic, Social and Cultural Rights
Today the Global Initiative for Economic, Social and Cultural Rights and the Programme on Women's Economic, Social and Cultural Rights were joined by 18 other civil society organizations in calling on Geneva and New York Missions to support gender balance and expertise in women's economic, social and cultural rights on the Committee on Economic, Social and Cultural Rights.
Currently the membership of the Committee consists of 15 men and 3 women. This is concerning because it provides a poor example of gender balance in an important human rights body and it highlights a systemic problem in surfacing, pursuing and promoting highly qualified female candidates for membership to the Committee. It is also clearly inconsistent with the human rights principles of nondiscrimination and equality between men and women, which are enshrined in the United Nations Charter and the Universal Declaration of Human Rights and of all the major international human rights treaties including the International Covenant on Economic, Social and Cultural Rights.
As mentioned above, the letter also calls for the support of candidates with established track records on women’s economic, social and cultural rights. This is crucial as today women represent approximately 70% of the 1.2 billion people living in poverty throughout the world and violations of women's economic, social and cultural rights contributes substantially to the continuing subordination of women.
Finally, the letter urges that all members of the Committee be independent of States and impartial in their Committee work.
The full letter can be read HERE.
UN Committee on ESC Rights issues historic ruling on Spain related to the right to housing
On September 17, 2015, the UN Committee on Economic, Social and Cultural Rights (CESCR) published its first recommendations in response to an individual complaint, regarding a violation of the right to housing, under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR), taking into account an ESCR-Net intervention.
With its entry into force in May 2013, the OP-ICESCR gave the CESCR the ability to hear complaints from individuals or groups of individuals who have not been able to secure justice for violations of economic, social and cultural rights (ESCR) in their own country. This case sets an important precedent, representing a vital new opening for access to justice at the international level, following the advocacy of the NGO Coalition for the Ratification of the OP-ICESCR.
In I.D.G. v. Spain (Communication 2/2014), brought on behalf of the complainant by FR Abogados, the CESCR established that the State has the obligation to provide for effective remedies in foreclosure procedures related to defaulting on mortgage payments, to ensure that all appropriate measures are taken to guarantee personal notification in foreclosure procedures, and to guarantee that legislative measures are adopted to prevent repetition of similar violations in the future.
The Committee ruling is in line with the third party intervention, presented by the International Network for Economic, Social and Cultural Rights (ESCR-Net) through members of its Strategic Litigation Working Group - the Global Initiative for Economic, Social and Cultural Rights (GI-ESCR), the Center for Economic and Social Rights (CESR), and the Social Rights Institute of South Africa (SERI) - referencing established principles and relevant interpretation of such principles through international and comparative case law and other sources. It stressed that States parties must interpret and apply domestic law consistent with their obligations under the ICESCR and must ensure effective judicial protection for Covenant rights, including the right to adequate housing. The latter protection entails state obligations to consider all feasible alternatives to eviction, ensure the greatest possible security of tenure, provide for adequate and reasonable notice in cases of eviction, ensure that evictions do not render persons vulnerable to other human rights violations, and provide adequate compensation for violations. In accepting this intervention from ESCR-Net, GI-ESCR, CESR and SERI, the Committee has followed the practice set by other international and regional decision-making bodies in allowing for third party interventions which present material relevant to the issues at stake.
This case arises in circumstances of widespread threats to the right to housing, impacting large numbers of people in Spain, who lost their homes after defaulting on mortgage payments in the context of the country’s economic recession and substantial unemployment. In this regard, an estimated 400,000 mortgage foreclosures took place in Spain between 2008 and 2012.[1] In 2014, six million people were unemployed in Spain. Moreover, between 2010 and 2014, the national budget for housing decreased by 47%, according to official figures.[2]
This case represents an important opening for justice for individuals and groups affected by ESCR violations; however, countries must first ratify the OP-ICESCR before their residents can access the CESCR using the mechanism of communications. Civil society, foremost via the NGO Coalition for the OP-ICESCR coordinated by ESCR-Net, was central to the drafting and adoption of the OP-ICESCR, and the Coalition continues an active campaign encouraging countries to ratify and reinforce their existing human rights obligations by ensuring access to effective remedy. As at today’s date, the following countries had ratified the OP-ICESCR: Argentina, Belgium, Bolivia, Bosnia and Herzegovina, Cabo Verde, Costa Rica, Ecuador, El Salvador, Finland, France, Gabon, Italy, Luxembourg, Mongolia, Montenegro, Niger, Portugal, San Marino, Slovakia, Spain and Uruguay.
[1] Observatori DESC and Plataforma de los afectados por la hipoteca. Housing emergency in Spain. The crisis of foreclosures and evictions from a human rights perspective (2013). Available here.
[2] CESCR. Visualizing Rights Fact Sheet No. 14 – Spain (2014), available here.
