Economic, Social and Cultural Rights - Lunds universitetMenuItemByDocId...Lund University / Faculty of Law / Doctoral Student Matthew Scott / 29/11/2017 Economic, Social and Cultural

Lund University / Faculty of Law / Doctoral Student Matthew Scott / 29/11/2017

Economic, Social and Cultural Rights

JAMR 40 – International Human Rights Law

Matthew Scott ([email protected])

29 November 2017


Opening thoughts –

how can we conceptualise ESC rights?


• Many positive obligation – obligation to fulfill

• Progressive realisation – every country not expected to hit

same standard right away – depends on what states can

achieve in relation to their resources

• Kind of vague –


Overview of the lecture

1. The ICESCR overview

2. The ICESCR: a poor cousin to the ICCPR?

3. The instrument

4. The nature of obligations

5. Monitoring, enforcement and development


1. The International Covenant on

Economic, Social and Cultural Rights

(ICESCR) 1966


Part of the ‘International Bill of Rights’

• UDHR

• Bifurcated covenants – ICCPR and ICESCR

• 166 state parties


2. The ICESCR: A poor cousin to the

ICCPR?


3 (false) dichotomies

a) Hierarchy of rights?

b) Positive v negative obligations?

c) Justiciable v non-justiciable?


a) Hierarchy of rights?


Vienna Declaration:

Universal / indivisible / interdependent

• Vienna Declaration 1993 – 7,000 participants – dismantled

the hierarchy of rights

• 5. All human rights are universal, indivisible and

interdependent and interrelated. The international

community must treat human rights globally in a fair and

equal manner, on the same footing, and with the same

emphasis. While the significance of national and regional

particularities and various historical, cultural and religious

backgrounds must be borne in mind, it is the duty of States,

regardless of their political, economic and cultural systems,

to promote and protect all human rights and fundamental

freedoms.


b) Positive v negative obligations?


What must states do to to comply with their

obligations in relation to:

Right Conduct

Right to a fair trial Legal aid

Judges

Courts

Training for police etc

Freedom of expression

Prohibition on slavery, servitude and

forced labour

Prosecuting people who engage in

slavery

Right to food Taxes – people cant buy food

Right to education


c) Justiciable v non-justiciable


What evidence would you need to establish

a breach of

Right Evidence

Prohibition on torture

Arbitrary detention

Right to the highest attainable

standard of health

Right to an adequate standard of

living


Challenges to justiciability of economic and

social rights – and some approaches

• Indeterminacy (which leads to)

– Arguments about democratic self-determination

– Judicial policymaking

• How to deal with ’multipolarity’ – is it a breach to not

pay for expensive treatment for one person in order to

provide basic health services to many?

• Can address retrogressive measures or interpret existing

law (domestic legislation)

• Bring issues of ‘social justice’ to public attention but leave it

to state to address the issue

• Maastricht Guidelines provide some guidance


Masstricht Guidelines on Violations of

Economic, Social and Cultural Rights 1997Violations through acts of commission

(a) The formal removal or suspension of legislation necessary for the continued enjoyment

of an economic, social and cultural right that is currently enjoyed;

(b) The active denial of such rights to particular individuals or groups, whether through

legislated or enforced discrimination

(c) The active support for measures adopted by third parties which are inconsistent with

economic, social and cultural rights;

(d) The adoption of legislation or policies which are manifestly incompatible with pre-

existing legal obligations relating to these rights, unless it is done with the purpose and

effect of increasing equality and improving the realization of economic, social and

cultural rights for the most vulnerable groups;

(e) The adoption of any deliberately retrogressive measure that reduces the extent to which

any such right is guaranteed;

(f) The calculated obstruction of, or halt to, the progressive realization of a right protected

by the Covenant, unless the State is acting within a limitation permitted by the Covenant

or it does so due to a lack of available resources or force majeure;

(g) The reduction or diversion of specific public expenditure, when such reduction or

diversion results in the non-enjoyment of such rights and is not accompanied by

adequate measures to ensure minimum subsistence rights


Masstricht Guidelines on Violations of

Economic, Social and Cultural Rights 1997Violations through acts of omission

(a) The failure to take appropriate steps as required under the Covenant;

(b) The failure to reform or repeal legislation which is manifestly inconsistent with an obligation of the

Covenant

(c) The failure to enforce legislation or put into effect policies designed to implement provisions of the

Covenant;

(d) The failure to regulate activities of individuals or groups so as to prevent them from violating

economic, social and cultural rights;

(e) The failure to utilize the maximum of available resources towards the full realization of the Covenant;

(f) The failure to monitor the realization of economic, social and cultural rights, including the development

and application of criteria and indicators for assessing compliance;

(g) The failure to remove promptly obstacles which it is under a duty to remove to permit the immediate

fulfilment of a right guaranteed by the Covenant;

(h) The failure to implement without delay a right which it is required by the Covenant to provide

immediately;

(i) The failure to meet a generally accepted international minimum standard of achievement, which is

within its powers to meet;

(j) The failure of a State to take into account its international legal obligations in the field of economic,

social and cultural rights when entering into bilateral or multilateral agreements with other States,

international organizations or multinational corporations.


Prima-facie evidence of breach - GenCom 3

• … a State party in which any significant number of individuals

is deprived of essential foodstuffs, of essential primary health

care, of basic shelter and housing, or of the most basic forms

of education is, prima facie, failing to discharge its obligations

under the Covenant

• In order for a State party to be able to attribute its failure to

meet at least its minimum core obligations to a lack of available

resources it must demonstrate that every effort has been made

to use all resources that are at its disposition in an effort to

satisfy, as a matter of priority, those minimum obligations.


Lots of cases where ESC rights were

adjudicated

i.e.

• PUCL v State of India (ongoing litigation in Supreme Court

of India since 2001) – see relevant orders here

http://www.hrln.org/hrln/right-to-food/pils-a-cases/255-pucl-

vs-union-of-india-a-others-.html

• Case of the Xákmok Kásek Indigenous Community v

Paraguay (Inter-American Court of Human Rights) –

judgment finding violation of the right to life under Article

4(1) ACHR in relation to access to land, food and health

services

http://www.hrln.org/hrln/right-to-food/pils-a-cases/255-pucl-vs-union-of-india-a-others-.html


3. The instrument


The instrument

Part Content Article

Part I Self Determination Article 1

Part II Overarching principles

(progressive realisation,

non-discrimination etc)

Article 2-5

Part III Substantive rights Article 5-15

Part IV Reporting Article 16-25

Part V Technical provisions 26-31

I will discuss:

•Overarching principles

•Reporting (plus justiciability)

We will discuss the right to an adequate standard of living / right to

health next week as an intro to the substantive rights


The substantive rights

Article Content

Article 6 The right to work

Article 7 The right to just and favourable conditions of work

Article 8 Trade union rights

Article 9 The right to social security, including social insurance

Article 10 Protection of the family, including parental rights at work

Article 11 The right to an adequate standard of living

Article 12 The right to the highest attainable standard of health

Article 13 The right of everyone to education

Article 14 Obligation to introduce free primary school education

Article 15 Enjoyment of cultural life and benefit of scientific advances


4. Overarching principles (the nature of

state obligations)

a) Progressive realization (incl. minimum core)

b) Non-discrimination


a) Progressive realisation

What progress is enough?


Progressive realisation

2(1) Each State Party to the present Covenant undertakes to take steps,

individually and through international assistance and co-operation,

especially economic and technical, to the maximum of its available

resources, with a view to achieving progressively the full realization of the

rights recognized in the present Covenant by all appropriate means,

including particularly the adoption of legislative measures.

- Note obligations of conduct and result

- How to assessment maximum available resources?

- Budget analysis

- How to measure progress?

- Human rights indicators (OHCHR)

http://www.ohchr.org/Documents/Publications/Human_rights_indic

ators_en.pdf

- Disaggregated data (Committee is very concerned with this)

http://www.ohchr.org/Documents/Publications/Human_rights_indicators_en.pdf


Tripartite typology

• Developed by Asbjørne Eide in the early 1980s (building on

Henry Shue’s earlier work)

• Respect – i.e. refrain for forcibly displacing people from their

land, leaving them without a means of subsistence

• Protect – i.e. regulate markets to ensure food security

• Fulfil – i.e. take steps to ensure access to safe drinking water

• This approach provides a framework for considering when

conduct may amount to a breach – but more ‘a grid of analysis’

rather than a ‘benchmark’ (de Schutter on reading list) – what

is the content of the obligations?


b) Non-discrimination


Non-discrimination2(2) The States Parties to the present Covenant undertake to guarantee that

the rights enunciated in the present Covenant will be exercised without

discrimination of any kind as to race, colour, sex, language, religion, political

or other opinion, national or social origin, property, birth or other status.

“…discrimination constitutes any distinction, exclusion, restriction or

preference or other differential treatment that is directly or indirectly based on

the prohibited grounds of discrimination and which has the intention or effect

of nullifying or impairing the recognition, enjoyment or exercise, on an equal

footing, of Covenant rights” (GenCom 20)

•Can arise through acts or omissions

•Features

–Formal and substantive discrimination

–Direct and indirect discrimination

–Other status?

–Conduct required of the state


Non-discrimination 1:

Formal and substantive discrimination

• Formal discrimination

– Constitution, law, policy documents. For example prevention on

women inheriting property

• Substantive discrimination – discrimination in practice

– “States parties must therefore immediately adopt the necessary

measures to prevent, diminish and eliminate the conditions and

attitudes which cause or perpetuate substantive or

de facto discrimination. For example, ensuring that all individuals

have equal access to adequate housing, water and sanitation will

help to overcome discrimination against women and girl children and

persons living in informal settlements and rural areas.”

– Special measures for some groups – i.e. interpreting service for

linguistic minorities; reasonable accommodation in relation to access

to helathcare for people with disabilities


Non-discrimination 2

Differential treatment – direct & indirect

• Direct discrimination

– when an individual is treated less favourably than

another person in a similar situation for a reason related

to a prohibited ground – but note special measures of

positive discrimination may be required to address

historical disadvantage

• Indirect discrimination

– Measures which have a disproportionate impact on the

exercise of Covenant rights as distinguished by

prohibited grounds of discrimination. For instance,

requiring a birth registration certificate for school

enrolment may discriminate against ethnic minorities or

non-nationals who do not possess, or have been

denied, such certificates.



Other grounds?

• Disability

• Age

• Nationality

• Marital and family status

• Sexual orientation and gender identity

• Health status

• Place of residence

• Economic and social situation

• Different forms of discrimination evolve over time and the

provision must therefore be interpreted flexibly

• Developed through General Comments and Concluding

Observations



States’ positive obligations

• Legislation

• Policies, plans and strategies

• Elimination of systemic discrimination

• Remedies and accountability

• Monitoring, indicators and benchmarks



The test

• States have the burden to establish that any differential

treatment is “reasonable and objective”

• Determining whether a measure is ‘reasonable and

objective’ entails an assessment of whether the measure is

– legitimate,

– compatible with the nature of the Covenant rights and

– solely for the purpose of promoting the general welfare

in a democratic society

• The measures and their impacts must be proportionate to

the aim



Art 2(2) as a subordinate norm

• Must be connected to a substantive right (though no need to

establish breach of the substantive right to establish breach

of non-discrimination obligation)

• Different from Art 26 ICCPR, which is an autonomous norm

(can be relied on directly – consider Broeks v Netherlands

in Moeckli reading)


Break


5. Monitoring, enforcement and

development – the UN system

a) The committee on economic, social and

cultural rights

b) The Optional Protocol on individual complaints

c) Special rapporteurs


Reporting and developing the law

• The Committee on Economic, Social and Cultural Rights

(CESCR) (18 elected independent experts)

– General Comments

– Periodic review following by Concluding Observations

– Optional protocol (in effect for 22 countries)

• Special rapporteurs (Right to food, Right to health…)


The Committee

Member State Member State

Mr Aslan Abashidze Russian

Federation

Mr Mikel Mancisidor de la

Fuente

Spain

Mr Mohamed Ezzeldin

Abdel-Moneim

Egypt Mr Sergei Martynov Belarus

Mr Clement Atangana Cameroon Mr Ariranga Govindasamy

Pillay

Mauritius

Ms Maria-Virginia Bras

Gomes

Portugal Mr Lydia Ravenberg Suriname

Mr Shiqiu Chen China Mr Renato Zerbini Ribeiro Leáo Brazil

Mr Chandrashekhar

Dasgupta

India Mr Waleed Sadi Jordan

Mr Olivier De Schutter Belgium Mr Nicolaas Jan Schrijver Netherlands

Mr Zladislaw Kedzia Poland Mr Heisoo Shin Rep. Korea

Mr Azzouz Kerdoun Algeria Mr Rodrigo Uprimny Columbia


The General Comments 1

GenCom Art Content

1 Reporting by states parties

2 22 International technical assistance measures

3 2(1) The nature of states parties obligations

4 11(1) The right to adequate housing

5 2 Persons with disabilities

6 2 The economic, social and cultural rights of older persons

7 11(1) The right to adequate housing (forced evictions)

8 The relationship between economic sanctions and

respect for economic, social and cultural rights

9 The domestic application of the Covenant

10 The role of national human rights institutions


The General Comments 2

GenCom Art Content

11 14 Plans of action for primary education

12 11 The right to adequate food

13 13 The right to education

14 12 The right to the highest attainable standard of health

15 11,

12

The right to water

16 3 The equal right of men and women to enjoyment of ESC

17 15 Copyright protection

18 6 Article 6 ICESCR (the right to work)

19 9 The right to social security

20 2 Non-discrimination in economic, social and cultural rights

21 15 The right to take part in cultural life


Example: Periodic Review and Concluding

Observations for Sudan

Concluding observations on Sudan (examples)

• The Committee is concerned that: (a) the lack of explicit recognition of

several Covenant rights in the State party’s Constitution weakens their

protection; The Committee recommends that the State party: (a)

incorporate all Covenant rights in its Constitution;

• The Committee is concerned at the limited access to justice in the State

party, which deprives victims of effective remedies for violations of

economic, social and cultural rights. the Committee recommends that

the State party: (a) step up efforts to train more legal professionals;

• The Committee notes with concern the discriminatory provisions affecting

women, religious minorities and lesbian, gay, bisexual, transgender and

intersex persons that are still in force in the State party… The Committee

urges the State party to amend legal provisions that are

discriminatory or have a discriminatory effect on the basis of race,

colour, sex, language, religion, political or other opinion, national or

social origin, property, birth or other status, in accordance with

article 2 of the Covenant.


Optional Protocol: Status of ratification

http://indicators.ohchr.org


The Optional Protocol• Entry into force 2013

– Individual petition

– Inter-state procedure

– Inquiry procedure

• Case pending (6) / decided (9) – all relating to Spain or Ecuador

• Examples

– Discrimination in access to non-contributory pension while in prison

– Discrimination of a minor foreigner in participating in football tournaments

– Non-consensual medical treatment; lack of appropriate and timely medical

care

– Forced eviction of a tenant as a result of proceedings instituted by landlady

– Access to complementary compensation established by collective

bargaining agreement

– Discrimination of a domestic worker in access to social assistance


Special rapporteurs

• Access to safe

drinking water and

sanitation

• Adequate housing

• Cultural rights

• Education

• Effects of Economic

Reform Policies and

Foreign Debt on

Human Rights

• Extreme poverty and

human rights

• Right to food

• Health

• International solidarity

• Transnational

corporations and other

business enterprises

http://www.un.org/apps/news/html/SpecialRapporteurs.asp


Guiding Principles on Extreme Poverty and

Human Rights

• A major output of the special rapporteur

• Defines extreme poverty as

– The combination of income poverty, human

development poverty and social exclusion (A/HRC/7/15,

para. 13)

Both a cause and consequence of human rights

violations

– At least in part ‘created, enabled and perpetuated by

acts and omissions of States and other economic actors

– Discrimination and exclusion among major causes

– Often intersecting forms of discrimination

• Lists principles according to specific rights (i.e. food, health)