With this inaugural edition of our Yearbook on the work of the UN Committee on Economic, Social and Cultural Rights, we hope to provide experts, States, advocates, activists, and others with concise information summarizing the Committee’s 2017 accomplishments. The objective is to increase the visibility of the important work of this Committee.
The Yearbook provides general information on the composition of the Committee as well as results related to its State reporting procedure, communications and working methods over the course of 2017. It also includes information on the Committee’s thematic work, which in 2017 entailed its Statement on the Duties of States Towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights as well as the adoption of a General Comment on State obligations under the Covenant, in the context of business activities.
The Yearbook is meant to provide summary information and highlight important trends and developments. However, please note that it is not an exhaustive cataloguing of the Committee’s activities, and for further information we encourage you to consult the Committee’s original documents, via their website available here.
We at the Global Initiative for Economic, Social and Cultural Rights hope you find the Yearbook informative and useful, and we look forward to producing future editions in the coming years.
Bret Thiele and Mayra Gomez
On behalf of the UN Committee on Economic, Social and Cultural Rights, my initial words are of great appreciation for the efforts of GI-ESCR in putting this Yearbook together. All opportunities to bring the work of the treaty bodies, in this particular case, of our Committee, closer to the rights holders are welcome. This publication is an excellent example of how to do it in a user-friendly way.
In 2017, the Committee pursued its work to fulfill the monitoring, standard-setting and adjudicating roles with which it is entrusted. In its monitoring role, the Committee reviewed States parties’ periodic reports on the implementation of the Covenant looking for the optimal use of dialogue time for national delegations as well Committee members in order to enable an adequate assessment of the status of implementation of the Covenant. Among the elements to which the Committee has been paying greater attention during the dialogue in more recent times is the maximum available resources clause and the need for proactive efforts on the part of States not only to allocate but also to generate resources, including through progressive taxation policies and measures to combat tax avoidance and tax evasion.
By the end of 2017, the Committee had completely resolved the backlog of reports pending consideration but this was also owing to the low rate of submission of reports in 2016 and 2017. There are different reasons for States not to comply with their reporting and implementing obligations, ranging from situation of conflict or post-conflict to lack of human and material resources.
Following a targeted meeting with States with long-overdue reports to discuss the challenges they faced, a specific appeal made to UNCT’s, coupled with the OHCHR Capacity Building Program established pursuant to General Assembly resolution 68/268, provided the space and the opportunity for some of these States to submit their initial reports.
In 2017, the Committee adopted its first Lists of Issues Prior to Reporting, thus introducing a Simplified Reporting Procedure. States parties to the Covenant already in the 3rd or 4th reporting round and whose reports were due in 2017 were offered this modality on a pilot basis. The main objective is to have a more focused dialogue with greater attention being paid to recurrent issues that have not been tackled. The periodic reports of New Zealand and Spain have already been considered in 2018 under this modality. We are encouraged by the good results and will probably use the Lists of Issues Prior to Reporting more and more in the future for periodic reports of States who accept to do so.
Building on our on-going engagement with States, we have now instituted a meeting with States parties to the Covenant at every session. We find it mutually beneficial and welcome the growing number of delegates that join us to be informed of the latest developments in the Committee’s work, ask questions and share their opinions and comments.
Message from the Committee Chair,
Ms Maria Virginia Bras Gomes
Regarding our methods or work, we have formalized a follow-up procedure to the concluding observations. It is one of the ways in which we hope to maintain an on-going dialogue with States parties in the period between one report and the next.
Based on the dialogue and on its own assessment, the Committee selects 3 recommendations from its concluding observations that require urgent attention from the State party. The first follow-up reports from States, as well as from National Human Rights Institutions and civil society organisations that wish to contribute are due in 2019. The Committee looks forward to how they can strengthen the implementation of Covenant rights on the ground.
Moving on to our standard setting role, in 2017 the Committee adopted its General Comment No. 24 on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities defining the duties of States parties including those that reach beyond their national territories. States should control private actors over which they can exercise control, consistent with general international law, in order to prevent such actors from infringing on human rights in foreign territories.
The Committee takes the view that States should regulate corporations that are domiciled in their territory and/or jurisdiction and that home States of transnational corporations need to establish appropriate remedies, guaranteeing effective access to justice for victims of business-related human rights abuses in a transnational context.
The Committee also adopted 2 Statements during 2017, on Human Rights Defenders and Economic, Social and Cultural Rights and on the Duties of States towards Refugees and Migrants under the ICESCR. They are both timely and deal with topical issues. We hope they will contribute to strengthen the protection of the groups highlighted in the Statements.
The increasing number of Individual communications under the Optional Protocol has provided the Committee with the opportunity to consider potential violations under a number of rights and to issue its views on legal and policy implications.
In June 2017, in a case from Spain recognizing tenants’ rights to adequate housing, in addition to the decision on effective reparation and economic compensation to the family that had its right to housing violated, the Committee highlighted 2 important issues. One was the need for States to ensure that all people, including those who live in rented accommodation, have the right to housing and that evictions cannot render anyone homeless. The second was to call the attention of the State as a duty bearer to institutional policy failures and lack of coordination between government agencies that often lie at the root of violations.
During the year we adopted 2 documents for our future work under the Optional Protocol – follow-up to Views and guidance on third party interventions. If we were not so limited by the lack of mandated resources for our work under the Optional Protocol that also impacts negatively on the support to be provided by the OHCHR, we would certainly be able to move further and faster. The Committee remains engaged in coordinating its work with other treaty bodies and in the further alignment and fine tuning of working methods. We will continue to endeavor to promote and protect economic, social and cultural rights including through the 2020 review process.
Ms. Maria Virginia
Chair, Committee on Economic, Social and Cultural Rights
The Committee has 18 members:
5 women and 13 men
4 former diplomats
2 public servants
1 National Human Rights Institution representative
Day of General Discussion
Committee Facts & Figures
Days of Pre-sessional Working Group Meetings
Maria Virginia BRAS GOMES (Chair), Portugal
Mohamed Ezzeldin ABDEL-MONEIM (Vice–Chair), Egypt
Zdzislaw KEDZIA (Vice-Chair), Poland
Heisoo SHIN (Vice-Chair), Republic of Korea
Lydia Carmelita RAVENBERG (Rapporteur), Suriname
Aslan ABASHIDZE, Russian Federation
Clement ATANGANA, Cameroon
Laura-Maria CRACIUNEAN-TATU, Romania (New)
Shiqiu CHEN, China
Chandrashekhar DASGUPTA, India
Olivier DE SCHUTTER, Belgium
Azzouz KERDOUN, Algeria
Sandra LIEBENBERG, South Africa (New)
Geographical Distribution of Committee Members in 2017
Mikel MANCISIDOR, Spain
Rodrigo UPRIMNY, Colombia
Michael WINDFUHR, Germany (New)
Renato ZERBINI RIBEIRO LEÃO, Brazil
Waleed SADI, Jordan
The Committee’s work on its State reporting procedure in 2017 resulted in its adoption of Concluding Observations (COBs) for 11 States Parties and Lists of Issues for 9 States Parties. In those COBs on States Parties’ implementation of the Covenant, the Committee addressed a wide range of issues relating to economic, social and cultural (ESC) rights, from homelessness and informal settlements, to obesity and food insecurity, universal social security and healthcare coverage and trade union rights and the lack of labour protections for informal sector workers.
It also considered States’ obligations to address the impact on ESC rights of business activities and discrimination against groups such as women and girls, lesbian, gay, bisexual, intersex and transgender people, persons with disabilities, indigenous peoples, refugees and migrants and ethnic minorities.
The Committee paid increasing attention to whether States were mobilising the maximum available resources, including how one States’ fiscal and tax policies might impact the availability of resources in another State and it regularly addressed States’ levels of official development assistance.
The reviews of Sri Lanka and Colombia enabled the Committee to consider the importance of ESC rights in post-conflict situations and transitional justice processes, where land reform and land and natural resource distribution were important elements of the recommendations.
The Committee also consistently insisted on the full domestic legal protection and justiciability of ESC rights and underlined the importance of institutions to monitor implementation, like National Human Rights Institutions.
It also called on States to ratify the Optional Protocol to the ICESCR, to improve data collection on ESC rights, including disaggregation, and to ‘take steps to progressively develop and apply appropriate indicators on the implementation of economic, social and cultural rights in order to facilitate the assessment of progress achieved’. A standard paragraph on the Sustainable Development Goals was also consistently included in the COBs:
State Reporting Procedure - Overview
The Committee recommends that the State party take fully into account its obligations under the Covenant and ensure the full enjoyment of the rights enshrined therein in the implementation of the 2030 Agenda for Sustainable Development at the national level, with international assistance and cooperation when needed.
Achievement of the Sustainable Development Goals would be significantly facilitated by the State party establishing independent mechanisms to monitor progress and treating beneficiaries of public programmes as rights holders who can claim entitlements. Implementing the Goals on the basis of the principles of participation, accountability and non-discrimination would ensure that no one is left behind.
The following pages contain summaries of the COBs for each of the States reviewed in 2017. Note that the summaries do not include every issued addressed by the Committee for that State.
State Reporting Procedure
At its 61st session in June 2017, the Committee commenced its new follow-up procedure which involves identifying 3 COBs for each State, for which the State must provide information, within 18 months, on the action taken to give effect to those COBs.
The kinds of COBs identified for follow-up included:
Exploitation of natural resources and access to land (Colombia);
Adequacy of social security benefits and conditions placed on access to social security (Australia);
Measures to ensure compliance with ICESCR by companies operating within the State’s territory and abroad and the removal of legal and practical obstacles to holding companies accountable for rights violations (Netherlands);
Measures to increase the enrolment rates at all levels of education and reduce the number of out-of-school children (Pakistan).
A total of 147 State delegates attended the Dialogues with State Parties. The largest delegation came from Mexico, with 43 delegates. The second biggest delegation was from the Netherlands, with 27 delegates. The smallest was 8 delegates from each of Liechtenstein and Uruguay.
In 2017, the Committee received:
108 NGO Parallel Reports (for the Dialogue)
9 National Human Rights Institutions Parallel Reports
During the review of Australia’s 5th periodic report the main themes were the lack of a Bill of Rights and the lack of full legal protection for ESC rights in Australia, the socio-economic disadvantage suffered by indigenous Australians and the punitive policies directed at asylum seekers and refugees, particularly with respect to the off-shore detention centres. Specifically, the Committee critiqued the offshore processing of asylum claims, the harsh living conditions and limited access to services, serious allegations of sexual abuse in the centres and accountability for rights abuses in offshore centres.
On indigenous peoples, the Committee raised the lack of constitutional recognition, participation of indigenous voices in the political system and issues relating to land and free, prior and informed consent, particularly with respect to the extractive industry. It also expressed concern at Australia’s increasing greenhouse gas emissions and decreasing environmental protections and its continuing support for coal mines and power stations, despite their contribution to climate change which is jeopardising ESC rights enjoyment around the world.
The Committee recommended Australia establish a regulatory framework to ensure that Australian companies operating abroad respect ESC rights and adopt a national action plan on business and human rights.
The Committee raised the persistent gender wage gap and industrial and occupational segregation by sex, the concentration of women in low-paid sectors and in part-time work, and high levels of domestic violence.
It highlighted the high rate of unemployment for youth, persons with disabilities, older persons and indigenous peoples, the working conditions and exploitation of migrant workers and legal restrictions on trade union rights.
The Committee expressed concern about the inadequacy of income support benefits, limited access to social security for asylum seekers and refugees and very strict conditionalities for accessing social security. The Committee was concerned about the absence of an adequate poverty measurement tool, limited statistical data on the extent and depth of poverty and the reported increase of poverty in Australia, including amongst children.
On housing, the Committee urged action to address the persistent shortage of affordable housing, increasing homelessness, criminalisation of homelessness in laws and policies and overcrowding and forced evictions of indigenous peoples.The Committee also addressed the large number of persons with cognitive or psychosocial disabilities in contact with the criminal justice system, mental health issues, obesity, medical interventions for intersex children and violence against persons with disabilities.
On education, the Committee raised concerns about the inequitable State funding for schools which is leading to segregation such that academic performance increasingly depends on family income. Concerns were also raised about education for indigenous children, including in indigenous languages, asylum seeker children and inclusive education for children with disabilities.
...concerned about the continued increase of carbon dioxide emissions in the State party, which run the risk of worsening in the coming years, despite the State party’s commitments...
... under the Paris Agreement. The Committee is also concerned that environmental protection has decreased in recent years as shown by the repeal of the emissions trading scheme in 2013, and the State party’s ongoing support to new coal mines and coal-fired power stations.
The Committee reviewed the 2nd & 3rd periodic reports of Liechtenstein together. In its Concluding Observations, it addressed decreasing Official Development Assistance, the functions of the newly established NHRI and the potential impact of private foundations based in Liechtenstein on its efforts in combating tax evasion and abuse, and on the ability of other States parties to meet their obligations to mobilize the maximum available resources for ESC rights.
It raised concerns about the absence of comprehensive anti-discrimination legislation and the lack of statistical data on ESC rights for persons with disabilities.
On gender equality, the Committee was concerned about the absence of a specific mechanism for the promotion of gender equality and the persistence of traditional gender roles and stereotypes of women and men in the family and society and the low representation of women in political and decision-making positions. It also urged Liechtenstein to do more to address the gender wage gap and occupational segregation by sex.
The Committee noted concerns about higher unemployment rates among youth, non-nationals and women and limitations in access to social assistance benefits by non-nationals. It also raised educational opportunities for migrant children and children with disabilities.
While commending the State party’s ongoing efforts to combat corruption, strive for transparency and avoid tax evasion schemes on an international scale, the Committee is, however, concerned about the potential impact of private foundations based in the State party on its efforts in combating tax evasion and abuse, and on the ability of other States parties to meet their obligations to mobilize the maximum available resources
Assessing the Netherlands’ 6th periodic report, the Committee called for ESC rights to be made justiciable and cautioned that alongside a devolution of powers to sub-national authorities, must be a distribution of commensurate resources and capacity, to ensure that rights are able to be realised. Whilst welcoming the Netherlands’ National Action Plan on business and human rights, the Committee was concerned that it does not sufficiently address Dutch companies operating in the Netherlands.
The Committee raised concerns about de facto discrimination against ethnic minorities, migrants, persons with disabilities, domestic workers, lesbian, gay, bisexual, transgender and intersex persons, refugees and asylum seekers, in employment, social security, education, housing and standard of living. It recommended the Netherlands assess the root causes of systemic and structural discrimination against minority groups. In particular, it highlighted the situation of undocumented migrants and rejected asylum seekers and their lack of access to social services.
Addressing gender equality, the Committee highlighted the high number of women in part-time work, the low number of women in decision-making positions and on company boards of directors, the gender pay gap, the persistence of stereotyped roles of women and men in family and society. It also urged the Netherlands to address the high levels of domestic violence and child abuse.
The Committee recommended that the Netherlands address the low levels of social security benefits and the overly strict entitlement conditions and to tackle the significant rise in homelessness.
The prevalence of poverty in the devolved territories of Aruba, Curaçao and Sint Maarten and the absence of reliable data, including official poverty measurement tools, were also highlighted. The Netherlands was urged to ensure the decriminalisation of abortion in Sint Maarten.
The Committee also expressed disquiet at socioeconomic segregation in many schools and consequential inequalities in educational attainment. It emphasised the need for inclusive education for children with disabilities and for culture and local languages to be taught in schools in Aruba, Curaçao and Sint Maarten.
... concerned about the significant rise in homelessness, in particular among marginalized and disadvantaged individuals and groups. The Committee urges the State party to investigate the root causes of homelessness and recommends that it take all necessary measures, including securing affordable social housing, in particular for those marginalized and disadvantaged...
The review of Pakistan was very important as it was its first report and had been long overdue. For an initial report the Committee allocates additional meeting time to enable more time to consider the over-arching legal framework and social and economic structures and policies.
In its Concluding Observations, the Committee noted its disappointment that Pakistan does not recognize ESC rights as fundamental, justiciable rights. It also lamented the overall absence of data and statistics. It welcomed the establishment of a National Human Rights Institution but noted concerns about a lack of independence and capacity to effectively carry out its mandate.
In assessing whether Pakistan had drawn on its maximum available resources, the Committee noted the very low level of public funding allocated to ESC rights, unspent funding allocated for education, a very low tax-to-gross domestic product ratio and that the tax regime, ‘may not be effective in significantly increasing spending on Covenant rights’. The Committee was particularly concerned about the level of corruption and the lack of protections for human rights defenders and whistle-blowers.
It noted the absence of comprehensive anti-discrimination legislation or constitutional protections and called for the decriminalisation of same-sex relations, a nationwide study on the situation of persons with disabilities and measures to address discrimination against and segregation of ‘scheduled castes’ (Dalits).
The Committee highlighted the urgent need to abolish laws that discriminate against women (eg: relating to polygamy, inheritance,
evidence in Courts) and to address the very low representation of women in decision-making positions and the large, increasing gender pay gap. It called for measures to address forced conversion of non-Muslim women, forced marriage, violence against women and domestic violence.
On the right to work, the Committee addressed the high unemployment rates of women and youth, the high number of occupational accidents and diseases, bonded labour, informal sector workers, lack of a comprehensive legislative and policy framework on labour protection and occupational health and safety and the low minimum wage.
The Committee also highlighted the trend of landownership concentration and landless farmers and small-scale landholders living in poverty. On the right to food, it identified food insecurity, hunger, malnutrition and stunting in children, as issues of concern. On housing, it highlighted the lack of affordable housing, living conditions and lack of security of tenure in urban informal settlements and forced evictions.
On health, the Committee raised concerns about the poorly funded, weak public health system with heavy reliance on private health services and the insufficient coverage of the National Health Insurance Programme. It urged measures to address the high maternal and infant mortality rates, the criminalisation of abortion, and the limited access to sexual and reproductive health services and information. On education, the Committee raised the very low net enrolment rates and the large disparities between girls and boys, urban and rural areas, and high-income and low-income families. It noted the big increase in ‘low-fee private schools’, their lack of regulation and the risk of segregation.
The Committee is concerned that, despite the adoption of the Bonded Labour System (Abolition) Act, 1992, the practice of bonded labour continues to exist, particularly in the brick kiln and agriculture sectors; that perpetrators of violations of the Act are rarely punished because few judges in the lower courts are aware of the Act and because of the complicity of the police...
The 5th periodic report of Sri Lanka was considered by the Committee at its 61st session. The Committee ‘regretted the late submission of the report’ but welcomed Sri Lanka’s transition towards peace. The Committee noted that ESC rights are contained in the ‘Directive Principles’ of its Constitution and are not justiciable. It recommended a comprehensive Bill of Rights and measures to improve the independence, impartiality and competence of the judiciary.
The Committee raised concerns about the absence of a comprehensive anti-discrimination law and discrimination against ‘Plantation Communities’, refugees and asylum seekers, Veddah people and LGBTI persons. It recommended decriminalizing consensual same-sex sexual conduct and urgent steps to prevent violence against LGBTI people. The Committee highlighted the level of sexual and gender-based violence, including marital rape and the prevalence of child or early marriage, child abuse and child labour.
In considering the question of the maximum available resources, the Committee questioned the diminishing fiscal revenues and regressive taxation system, the low level of public expenditures for social protection programmes, and cuts to the education and health budgets.
On gender equality, the Committee highlighted the low participation of women in political and public life, patriarchal attitudes and stereotypes in society, the low participation of women in the labour market and over-representation in low-paying jobs in tea plantations and the garment sector.
It recommended the regularisation of informal economy work and increased resources for effective labour monitoring and inspections. The insufficient minimum wage was highlighted, as well as its limited coverage and the absence of mechanisms for enforcement and periodic review.
The Committee underlined the issue of land restitution, access and distribution in the post-conflict context and recommended the establishment of an independent national land commission and a national land policy. It also raised concerns that women-headed households are vulnerable to poverty, food insecurity and lack of livelihood opportunities, which increased their vulnerability to exploitation, sexual harassment, violence and bribery by officials.
The Committee highlighted the high levels of malnutrition and wasting in Sri Lanka and on health, recommended Sri Lanka address the low public expenditure on health and regional disparities in health-care infrastructure and that it ensure affordable and accessible public health care for all.
The Committee also pointed out the regional disparities in school infrastructure, which lead to differences in access and quality of education. It also raised concerns about the commodification of education and the hidden costs of schooling (including de facto bribes).
On cultural rights, the Committee urged the implementation of the Official Languages Law and National Trilingual Policy and the need to ensure sufficient Tamil-speaking public officials and schools.
... regional disparities remain in school infrastructure, availability of water and electricity in educational institutions, deployment of trained educational personnel, curriculum contents and transport of pupils. These disparities lead to differences in access to and quality of education. The Committee is also concerned about the hidden financial costs of schooling, ... burdening low-income and underprivileged households with additional costs.
Uruguay presented its 5th periodic report to the Committee. The Committee raised concerns about the lack of comprehensive anti-discrimination legislation, including the absence of a legal requirement to provide ‘reasonable accommodation’ for persons with disabilities.
The Committee noted the structural discrimination against persons of African descent and migrants in Uruguay. It also highlighted discrimination and violence against women and recommended that Uruguay combat negative gender stereotypes and adopt a law against gender-based violence.
On the right to work, the Committee underlined the high unemployment of youth and women and the need for effective implementation of the four per cent minimum quota for the employment of persons with disabilities in the public sector. The Committee highlighted the large wage gap between men and women and the vertical and horizontal segregation of the workforce by sex. It recommended the adoption of legal, awareness-raising and educational measures to foster an equitable distribution of responsibilities within the family and in society.
It welcomed the increases in the minimum wage but said it was still not sufficient for decent living conditions. The Committee raised concerns about the working conditions for migrants and lack of labour and social protections in the informal economy.
It welcomed advances in combating poverty and inequality and the broad coverage of Uruguay’s social security system but recommended the scheme be extended to informal-sector workers and self-employed persons and ensure decent living conditions for recipients.
The Committee also addressed the high levels of obesity and the need for measures to promote healthier diets. The Committee expressed concern about the high level of teenage pregnancy, lack of information on sexual and reproductive health rights in rural areas and for teenagers and the lack of access to abortion.
On education, the persistent inequalities in access to education and educational attainment, especially among children of African descent and children from socially and economically disadvantaged groups, was noted.
Finally, addressing cultural rights, the Committee recommended that Uruguay create a conducive environment in which the Afro-descendent and indigenous populations can preserve, develop, give expression to and disseminate their identity, history, culture, traditions and customs.
The Committee recommends that the State party:
(a) Take appropriate, effective steps to close the persistent gender wage gap and to combat vertical and horizontal occupational segregation;
(b) Ensure the effective application of the principle of equal pay for work of equal value by, inter alia, conducting comparative studies of the situation in organizations and professions ....
The Committee welcomed the signing and adoption of the Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace and addressed the need to ensure effective implementation of the Agreement including through the allocation of the necessary human, technical and financial resources and establishing monitoring mechanisms. The Committee underscored the need to take appropriate steps to guarantee the active, open and transparent participation of society at large in the implementation process, especially the participation of the most affected groups and of the victims of the conflict.
The Committee also raised concern regarding the exploitation of natural resources, particularly agro-industrial projects, discrimination against indigenous people and Afro-Colombians, the persistent gender pay gap and occupational segregation by gender and the precarious situation of many agricultural workers. The Committee made recommendations regarding the fight against corruption, poverty and the cultivation of illicit crops, formalising the informal economy and ensuring an adequate standard of living for demobilised persons.
The Committee welcomed the establishment and work of the National Protection Unit. It expressed concern at the increase in harassment, assault and attempted killings of HRDs.
The Committee urged the State to raise awareness of the important work done by HRDs, effectively investigate all allegations of threats
and/or violence and continue to ensure the effective operation of the National Protection Unit.
The Committee raised concerns that the National Plan on Business and Human Rights does not adequately establish the principle of due diligence to identify, prevent and mitigate the risk of violation of ESC rights. The Committee recommended that Colombia ensure the principle of due diligence is incorporated into the National Plan, to ensure businesses operating within Colombia do not violate ESC rights. It should also strengthen mechanisms to investigate complaints against companies and ensure effective remedies for victims of violations.
The Committee recommended that the State carry out a comprehensive analysis of the impact of the structural tax reform on reducing poverty and inequality and make the necessary adjustments to ensure that it is redistributive and socially fair, with a view to combating the high level of inequality and increasing the resources available for the implementation of economic, social and cultural rights.
The State Party was requested, within 18 months of the concluding observations, to provide information on the steps taken to give effect to the recommendations regarding HRDs, exploitation of natural resources and access to land.
While the Committee welcomes the fact that a number of key points of the Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace represent an opportunity for the realization of economic, social and cultural rights, particularly those of victims and of the groups that have been most affected by the conflict, the Committee is concerned at the major challenges to be faced in ensuring their effective implementation.
The Committee welcomed Mexico’s innovative step of incorporating the Sustainable Development Goals into its budget. It highlighted the need to curb corruption and the protection of whistle blowers and witnesses.
The Committee urged the State to strengthen its efforts to develop a social protection floor that includes basic universal social guarantees. It underlined the need to address violence against women and establish a comprehensive protection system for children and adolescents in vulnerable situations, including preventing their economic exploitation.
The Committee also expressed concern at the high levels of malnutrition and food insecurity, on the one hand, and rising levels of excess weight and obesity, on the other. It recommended that the State develop a comprehensive national strategy for the protection of the right to food in order to address food insecurity and to promote healthier diets.
The Committee also recognised the insufficient efforts to protect the cultural diversity of indigenous peoples and urged the State to strengthen the protection of cultural rights and respect for cultural diversity. In particular, it urged the State to protect the rights of indigenous peoples to own, use, develop and control their lands and natural resources.
Reviewing Mexico's 5th and 6th periodic reports, the Committee expressed concern that the non-binding nature of protocols on prior consultation has led to violations of the right of indigenous peoples to free, prior and informed consent, particularly regarding the execution of economic projects and the development of natural resources. As a result, the Committee recommended that the State ensure indigenous peoples are consulted in advance, in a systematic and transparent manner, with a view to obtaining their free, prior and informed consent with respect to decisions likely to affect them, especially before it grants permits for economic activities in territories that they have traditionally owned, occupied or used.
The Committee recommended Mexico adopt measures to ensure that companies operating in the State exercise due diligence in human rights matters to prevent their activities from having a negative impact on ESC rights.
The Committee also expressed concern at the very high levels of poverty and inequality, particularly for disadvantaged and marginalized groups, especially indigenous peoples. It urged Mexico to adopt a comprehensive plan aimed at significantly narrowing the inequality gap and to ensure that social programmes to combat poverty and extreme poverty are implemented in accordance with human rights standards, are allocated sufficient resources for their enforcement and implementation, and devote due attention to the disparities and gaps between different social groups.
..the State party has taken the innovative step of incorporating the Sustainable Development Goals into its budget and is making efforts to increase resources and make the tax system more equitable thanks to the 2013 reform of its fiscal policy. However, it is concerned that the impact of these measures has not been sufficiently progressive and that the tax arrears collection rate remains low, which reduces the State party’s capacity to fulfil its obligation to mobilize the maximum of its available resources..
Reviewing Korea's 4th periodic report, the Committee voiced concern over the issue of costs impeding access to judicial remedies for violations of ESC rights. It also raised concern about the short-comings in the anti-corruption efforts and the limited scope of the jurisdiction of the National Human Rights Commission of Korea. The Committee further urged the State to accelerate the increase of its official development assistance and to take effective measures to eliminate all forms of discrimination on the grounds of sexual orientation, gender identity and national origin.
With respect to labour rights, the Committee recommended Korea take measures to curb the abuse of non-standard forms of employment, eliminate exploitation of migrant workers, secure trade union rights and ensure that the minimum wage enables workers and their families to enjoy an adequate standard of living. The Committee expressed concern at the low levels of investment in public social spending and the lack of effective accountability for the delivery of social services by both public and private entities. It was particularly concerned that the accessibility, affordability and quality of social services delivered by private entities are not guaranteed.
The Committee urged the State to accelerate the increase of its spending on social services, and correspondingly strengthen monitoring and accountability mechanisms for the delivery of social services, by both public agencies and private entities.
Regarding business and human rights, including with respect to Korean companies operating abroad, the Committee expressed concern about the documented cases of ESC rights violations by Korean companies at home and abroad. It also raised concern about the absence of a legal obligation for companies in Korea or under its jurisdiction, to undertake human rights due diligence.
The Committee, therefore, recommended that the State establish a legal obligation for companies domiciled in Korea and those entities that they control, including those in their supply chain, to exercise due diligence in order to identify, prevent and mitigate the risks of violations of ESC rights, and to account for the negative impacts caused or contributed to by their decisions and operations. Furthermore, the Committee urged the State to ensure that victims have access to remedies through judicial and non-judicial means.
On work rights, the Committee asked about the low minimum wage and the lack of coverage of labour protections and social security for the agriculture, fisheries and domestic work sectors. It also raised concerns about migrant workers, the gender wage gap and the restrictive criteria for legal strikes.
...concerned about the absence of a legal obligation for companies domiciled in the State party or under its jurisdiction to exercise human rights due diligence. The Committee is also concerned at the documented cases of human rights violations resulting from the operations of Korean companies at home and abroad...
The Committee considered Moldova's 3rd periodic report. It expressed concern at the low level of school enrollment and poor quality of education, and the insufficient provision of social housing to disadvantaged and marginalized individuals and groups.
The Committee also discussed the serious soil and groundwater pollution and recommended that the State improve access to safe drinking water and adequate sanitation facilities, with a special focus on the rural areas. On social security, the Committee urged Moldova to ensure the social cash transfer programme covers all eligible persons and increase the amount of benefits to a level that provides a decent standard of living. It called on the State to step up efforts to address human trafficking including through thorough investigations, prosecution and punishment of perpetrators and measures to support the victims of trafficking.
While noting the establishment of two national human rights institutions (NHRIs) in the State, the Committee expressed concern that the level of financial and human resources provided to these institutions is not sufficient for them to carry out their respective mandates and that the implementation by public authorities of the recommendations or decisions made by them, is low.
The Committee urged the State to ensure that they are fully in compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles).
The Committee was concerned that the draft health code does not sufficiently address the main challenges of the current system. It recommended that the State review the draft health code to ensure it is based on a human rights approach and addresses the restricted access to health-care services, particularly in rural areas, the poor quality of health-care services in public health facilities, and discrimination against Roma, persons with disabilities, persons living with HIV/AIDS, refugees and asylum seekers and other disadvantaged and marginalized individuals and groups in accessing health care services.
On the maximum available resources, the Committee noted that public expenditure on social security, housing and basic services, health care and education has decreased as a ratio of gross domestic product and called on the State to substantially increase the level of public social expenditure.
The Committee also noted concerns about discrimination against the Roma population, particularly with respect to housing, social security and health rights.
...recommends that the State party apply a human rights-based approach to the treatment of drug users and provide appropriate health care, psychological support and rehabilitation. It urges the State party to maintain harm reduction programmes for drug users.
The Committee reviewed the 6th periodic report of the Russian Federation. It raised concerns about legislative amendments which weaken indigenous peoples’ land rights and by the limited prior consultation with indigenous peoples, in respect of activities, particularly in the context of extractive activities, carried out on lands owned or traditionally used by them.
The Committee made recommendations regarding children in alternative care, urging the State to work towards further reducing the number of children living in institutions, particularly children with disabilities. It further recommended that the State should implement effective legal safeguards against arbitrary land expropriation and adopt a comprehensive policy to combat high drug use in the State.
It urged Russia to take effective steps to reduce greenhouse gas emissions and monitor the impact of climate change on the enjoyment of ESC rights. The Committee also voiced concern about legal provisions restricting the operation of NGOs that receive foreign funding and engage in political activity and recommended the repeal or amendment of all legislation that unduly restricts NGO activities.
The Committee expressed concern about restrictions faced by Crimean Tatars and ethnic Ukrainians in exercising their ESC rights, particularly the rights to work, to express their own identity, culture and to education in the Ukrainian language. It asked the State to uphold ESC rights in all areas under its effective control without discrimination.
The Committee recommended strengthening the regulatory framework for companies to ensure the legal liability of companies based in, or managed from, its territory regarding violations of ESC rights resulting from their activities conducted abroad.
The Committee expressed concern about the poor housing conditions of Roma, most of whom live in illegal settlements lacking access to basic services, and the punitive approach taken towards Roma illegal settlements, manifested by house demolitions and forced evictions, carried out in many instances without guarantees for due process and resulting in homelessness. The Committee urged the State to pursue a human rights-based approach for the development of adequate housing conditions for Roma, ensuring they engage in an open and meaningful dialogue with Roma representatives with a view to significantly improving their housing conditions.
In relation to women's right to work, the Committee expressed concern about the existence of the list of 456 banned professions for women, and about the lack of scientific or medical assessment of the real impact these professions on women’s reproductive health. The Committee urged the State to ensure that the list covers only restrictions necessary for the protection of maternity and is based strictly on medical considerations.
The Committee noted that the flat-rate tax system, for both personal and corporate income, contributed to an increase in income and social inequalities . It called on the State to take measures to ensure that its tax policy is effective in addressing economic inequalities and tax evasion.
...recommends that the State party repeal or amend any legal provisions that unduly restrict the activities of non-governmental organizations, including the provisions introduced by Federal Laws Nos. 121 and 129. The Committee also recommends that the State party take effective measures to prevent and investigate all forms of harassment, intimidation or threats faced by human rights defenders.
In that case, Mohamed Ben Djazia and Naouel Bellili v Spain(E/C.12/61/D/5/2015), the Committee was asked to consider whether the eviction into homelessness of low income tenants in private rental accommodation in Madrid, amounted to a violation of their right to adequate housing.
The authors presented evidence of the dire housing situation in Spain following the financial crisis and the introduction of austerity measures. In finding a violation of the Covenant, the Committee said that whilst the eviction was justified in the circumstances, the failure of the State to allocate alternative housing to the authors, amounted to a violation of their right to adequate housing (article 11), because the State was not able to convincingly demonstrate that it had taken all reasonable measures, up to the maximum of available resources, to satisfy the author’s right.
Admissibility and Procedural Issues
On procedural issues, the high number of inadmissible cases continued. The most common ground of inadmissibility in 2017 was that the alleged facts of the case occurred prior to the date of entry into force of the ICESCR for the relevant State (article 3(2)(b) of the Optional Protocol).
As at 6 October 2017, the Committee had registered 22 communications, of which 15 were adjudicated, 2 were discontinued and 5 remained pending.
For the communications considered in 2017, the majority (5) were against Spain, with 1 against Portugal and 1 against Ecuador.
The most common issues addressed in the communications were the right to work and the right to social security. The topic of the communication in which a violation was found, was the right to adequate housing.
In two of the cases considered by the Committee in 2017, there were claims made of violations under the International Covenant on Civil and Political Rights and these were found inadmissible pursuant to Article 3(2)(d) of the Option Protocol.
In Coelho v. Portugal (E/C.12/61/D/21/2017), the Committee explained that a communication will not be inadmissible where the facts amounting to the alleged violation occurred prior to the date of entry into force of the Covenant for the State, but the associated domestic Court cases continued after the date of entry into force.
Nevertheless, that communication was found inadmissible pursuant to article 3(2)(e) of the Optional Protocol, on the grounds that the factual allegations made were insufficiently substantiated and did not allow the Committee to assess whether or not there was a violation of the Covenant.
Another interesting procedural development was in the case Alarcón Flores et al v. Ecuador (E/C.12/62/D/14/2016), where the Authors requestedinterim measuresunder article 5 of the Optional Protocol. The interim measures were not granted because the Committee had not received sufficient individualized information to substantiate the existence of possible irreparable damage to the Authors.
This was also a procedurally interesting case because a third party interventionwas submitted by an NGO pursuant to the Committee’s Guidance on Third Party Interventions.
Ecuador objected to the third party intervention on the basis that article 8(3) of the Optional Protocol and article 14(1) of the provisional rules of procedure under the Optional Protocol, did not entitle the Committee to admit and review documentation from NGOs, as they could not be considered ‘international organizations’ within the meaning of the provision (art 8(3)).
Ecuador also objected to the timing of the third party intervention, contending that both parties to the communication had already submitted their observation and comments on admissibility and, therefore, any third-party submission on admissibility was time-barred.
The Committee dismissed these arguments and found that it could accept relevant information and documentation submitted by third-party persons or bodies where necessary to properly decide on a case, provided that such submissions were authorized by the Committee and subsequently transmitted to the parties for comments and observations (art 8(1) Optional Protocol).
Communications Considered in 2017
During 2017 the Committee adopted follow-up procedures on Views and Concluding Observations. This is the first time that the Committee has had a formal procedure for follow-up of its recommendations.
The procedure forfollow-up to Concluding Observationswas introduced on a pilot basis and will be assessed after 4 years. The Committee will select up to 3 of the Concluding Observations which require urgent action and which are attainable within 18 months, and the State party will be required to report on the implementation of those recommendations within 18 months. The State’s replies will constitute its follow-up report and it will be made public on the Committee’s webpage.
Civil society and NHRI input into the follow-up procedure is envisaged. Each may submit information to the Committee about the State’s efforts to implement the 3 selected Concluding Observations. The Committee will then consider all information received, in closed meeting. It will assess the implementation efforts and transmit its assessment to the State Party and publish it on it’s webpage.
The Committee has adopted a ‘soft’ grading system for assessing implementation:
Lack of sufficient information to make and assessment;
In all cases, except ‘sufficient progress’ the matter will be addressed in the next Periodic report of the State Party and in the case of ‘no response’ it will be considered a priority in the next State Dialogue.
The States reviewed during the 61st session (Australia, Netherlands, Sri Lanka, Uruguay, Pakistan and Liechtenstein) will be the first subjects of the follow-up procedure from December 2018.
Meetings with UN experts and bodies
The Committee held meetings with other UN experts and bodies:
Ms Catalina Devandas Aguilar, the Special Rapporteur on the rights of persons with disabilities;
Working Group on the issue of human rights and transnational corporations and other business enterprises;
Committee on the Rights of the Child to discuss the outcome of the High-Level Working Group on Health and Human Rights of Women, Children and Adolescents;
Chair/Rapporteur of the Open Ended Intergovernmental Working Group on the rights of peasants and other people working in rural areas;
Mr Vitit Muntabhorn, the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity; and
the Global Alliance of National Human Rights Institutions to discuss participation of NHRIs in the work of the Committee.
During 2017 the Committee worked on a number of thematic topics. It produced three thematic outputs:
Statement on ‘the duties of States towards refugees and migrants under the ICESCR’ (E/C.12/2017/1);
Statement on human rights defenders of economic, social and cultural rights (E/C.12/2016/2); and
General Comment No. 24 on ‘State obligations under the ICESCR in the context of business activities’ (E/C.12/GC/24).
Refugees and Migrants
In February 2017, the Committee adopted a Statement on the duties of States under the ICESCR with respect to refugees and migrants.
The Committee began the Statement by explaining that it was made against the background of the global inter-governmental process for the adoption in 2018 of a global compact on refugees and a global compact for safe, orderly and regular migration. It then confirms that States’ obligations under ICESCR apply to ‘all persons under its jurisdiction’ which includes refugees, asylum seekers and regular and ‘irregular’ (ie. documented and undocumented) migrants. It explains that whilst the Convention on the Status of Refugees addresses ESC rights of refugees and asylum seekers, it leaves a broad margin of appreciation to States. Therefore, ICESCR complements the Refugee Convention.
The Committee highlighted that the concepts of ‘progressive realisation’ and ‘maximum available resources’ do not mean that
States can ‘infinitely postpone taking action’ and that the Covenant imposes immediate obligations on States to ensure that they do not discriminate on the grounds of nationality or legal status and that any differential treatment on those grounds is in accordance with the law, pursues a legitimate aim and is proportionate to the aim pursued.
A lack of available resources is not a sufficient justification for discriminatory treatment and States must pay specific attention to the practical obstacles faced by asylum seekers and migrants.
The Committee notes the exception set out in Article 2(3) of the Covenant which permits developing countries to determine the extent to which they will guarantee economic rights to non-nationals. This applies only to developing countries and only to ‘economic rights’ such as access to employment, and does not relate, for example, to the right of each child to education, which should be recognised independently of nationality or the legal status of her or his parents.
The Committee explains also the importance of core obligations in this context. It says that the essential minimum content of each right must be ensured to all people under the ‘State’s effective control, without exception’. It stresses that ‘core obligations are non-derogable, they continue to exist in situations of conflict, emergency and natural disaster.’
States 'would not, in principle, be justified in restricting the enjoyment of the essential content of the Covenant rights on the basis of a lack of resources, even when confronted with a sudden and quantitatively significant flow of refugees.’
The Statement then steps through the obligations and common challenges with respect to the rights to health, work, housing and social security, emphasising that any restrictions on access to these services/rights should be reasonable and proportionate. It underlines the specific vulnerability of undocumented migrants, who often lack the documentation necessary to access social services and whose irregular legal status and the fear of being deported, inhibits their access to services and willingness to complain about mistreatment.
The importance of data collection to aid policy and strategy development and service provision, is also highlighted in the Statement. Finally, the Committee recalls the obligations of international co-operation and notes the importance of these obligations in the context of a sudden influx of refugees and migrants.
The Statement makes important comments on the ESC rights of refugees, asylum seekers and migrants which should be helpful for States when grappling with how to implement their ICESCR obligations with respect to these groups. It will be interesting to see how the Statement can be applied at the policy level regarding decisions about resource allocation for social services for refugees and migrants and in the highly politicised debates at the international and national levels, where a human rights perspective is crucial and often missing.
Business and Economic, Social and Cultural Rights
In June 2017, the Committee adopted their General Comment 24 (GC 24) following the public discussion at the well-attended Day of Discussion in February 2017.
The GC 24 comes at an important moment: as the Committee hears more and more frequently in its State reporting process, about ESC rights abuses relating to business activities; as States engage in the inter-governmental process for the elaboration of a treaty on international accountability for human rights abuses involving transnational corporations; and as States and corporations pursue efforts to implement the UN Guiding Principles on Business and Human Rights.
In GC 24, the Committee acknowledges that while businesses play an important role in the realisation of ESC rights, they can also negatively affect the enjoyment of ESC rights. Therefore, the GC24 is intended to clarify the duties of States in such situations, with a view to preventing and addressing the adverse impacts of business activities on ESC rights.
The scope of GC 24 is broad, applying to all transnational and domestic activities of business entities, whether private or State-owned, and regardless of size, sector, location, ownership and structure. It highlights that business entities are expected to respect ESC rights regardless of whether domestic laws exist or are fully enforced in practice.
Whilst generally States will not be liable for the actions of corporations, the GC 24 lists the specific instances where, under international law, States may be held directly responsible for the action or inaction of business entities, for example where a business entity is empowered under the State’s legislation to exercise elements of governmental authority. Further, where States fail to take reasonable measures that could have prevented a reasonably foreseeable violation of ESC rights caused by a private entity’s conduct, States may be held indirectly responsible for the violation of the ICESCR.
The Committee explains the obligation to respect:
'The obligation to respect economic, social and cultural rights is violated when States parties prioritize the interests of business entities over Covenant rights without adequate justification, or when they pursue policies that negatively affect such rights.'
States should adopt legislative, administrative, educational and other appropriate measures, to ensure effective protection against infringements of Covenant rights, linked to business activities, including by imposing criminal and administrative sanctions and ensuring victims have access to effective remedies.Theobligation to protectalso entails a positive duty to adopt a legal framework, directing regulating business and requiring business entities to exercise human rights due diligence to identify, prevent and mitigate the risks of violations of Covenant rights.
The Stateobligation to fulfilrequires States to take necessary steps, to the maximum of their available resources, to facilitate and promote the enjoyment of ESC rights, and, in certain cases, ‘to directly provide goods and services essential to such enjoyment. Discharging such duties may require the mobilization of resources by the State, including by enforcing progressive taxation schemes’.
GC 24 also discusses the impacts on affordability, universal access, quality and socioeconomic segregation, of privatisation in traditionally public sectors, including education and health. States should put in place strict regulation addressing elements such as universality of coverage and continuity of service, pricing policies, quality requirements and user participation.
The GC 24 also devotes significant attention to extra-territorial obligations under ICESCR, confirming that States are required to take the steps necessary to prevent human rights violations abroad by corporations domiciled in their territory and/or jurisdiction, without infringing the sovereignty of the host States. Further, States should require corporations within their jurisdiction to
On the extraterritorial obligation to fulfill, the Committee recalls the requirement on States to contribute to creating an international environment that enables the fulfillment of rights, for instance by addressing tax evasion and avoidance.
Other important issues addressed in GC 24 include:
effective remedies for victims;
taxation and financial secrecy and their impact on the availability of maximum resources;
‘act with due diligence to identify, prevent and address abuses to Covenant rights by such subsidiaries and business partners, wherever they may be located’.
trade and investment agreements and dispute settlement and their negative impact on human rights and on States’ ability to take measures to implement its obligations under the ICESCR;
special considerations regarding indigenous peoples; and
the important role of human rights defenders in ensuring corporate accountability.
GC 24 is ground-breaking and highly relevant, as it successfully speaks to many of the contemporary human rights challenges facing the world today. It will be a valuable resource for States, civil society and business, in understanding the legal framework for ESC rights as it relates to business activities.
Human Rights Defenders
This was 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’.
This is a very important and timely Statement of the Committee. Civil society were particularly pleased to see the Committee adopt this Statement given the increasingly dangerous working environment for defenders of ESC rights. For civil society were heartened by the Committee’s clear commitment to combat intimidation and reprisals against those who provide information, or seek to contribute to, the Committee’s work to promote and protect ESC rights.
c/o International Service for Human Rights
Rue de Varembe 1P.O. Box 16CH-1211 Geneva 20 CICSwitzerland
C/O East African Centre for Human Rights
House 4, Cedar Court,Timau Road, Kilimani, Nairobi, Kenya