THE INTERNATIONAL COVENANT ON ECONOMIC,

SOCIAL AND CULTURAL RIGHTS (ICESCR)

&

THE WORK OF THE COMMITTEE ON ESCR

OHCHR, January 2010

CONTENTSCONTENTSThe International Covenant on ESCRNature of obligationsThe Committee on ESCRNational Actors involvedJusticiability

The International Covenant on The International Covenant on Economic, Social and Cultural Economic, Social and Cultural

RightsRights

UN HUMAN RIGHTS SYSTEMUN HUMAN RIGHTS SYSTEM Indivisibility and interdependence of all human

rights International human rights legal framework as

the normative basis

for States’ compliance

with human rights

UDHR

MWC

CERD

ICCPRICESCR

Opt. Protocols

CEDAW

CRC

CAT

Core international human rights Core international human rights treatiestreaties

The International Bill of Human Rights:Universal Declaration of Human Rights

(UDHR)International Covenant on Economic, Social

and Cultural Rights (ICESCR)International Covenant on Civil and

Political Rights (ICCPR)

Core international human rights Core international human rights treatiestreaties

Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment (CAT)

Convention on the Elimination of Discrimination against Women (CEDAW)

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)

Convention on the Rights of the Child (CRC) International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their Families (ICRMW)

International Convention on the Rights of Persons with Disabilities (ICRPD)

International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED) – not yet in force

Core international human rights Core international human rights treatiestreaties

Optional Protocols:

to the CRC on the involvement of children in armed conflict (CRC-OPAC)

to the CRC on the sale of children, child prostitution and child pornography (CRC-OPSC)

to the ICCPR (on individual complaints) (ICCPR-OP1) to the ICCPR, aiming at the abolition of the death penalty

(ICCPR-OP2) to the ICESCR (not yet in force) (individual complaints) to the CAT (OPCAT) to CEDAW (individual complaints) to CRPD (individual complaints)

International Covenant on Economic, International Covenant on Economic, Social and Cultural RightsSocial and Cultural Rights

Adoption 1966, entry into force in 1976 Primary international instrument guaranteeing

economic, social and cultural rights for ALLPart of the International Bill of Human Rights

(with Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights)

Ratification of ICESCR by world regionsRatification of ICESCR by world regionsas at 28 January 2010as at 28 January 2010

0

10

20

30

40

50

60

Africa Asia &Pacific

EasternEurope

Lat. Amr &Caribbean

W. Europe &Other

States, total number

States parties

Total number of States parties: 160 (out of 191 UN member States)Total number of States parties: 160 (out of 191 UN member States)

ICESCR: RightsICESCR: Rights

Article 1: Right to self-determinationArticle 2

– (1): Progressive realization– (2): Non-discrimination

Article 3: Equality of men and womenArticle 4: Limitations clauseArticle 5: Non-derogation

ICESCR: Substantive rightsICESCR: Substantive rights

Article 6: Right to workArticle 7: Right to just and favourable

conditions of workArticle 8: Trade union rights

ICESCR: Substantive rights ICESCR: Substantive rights (cont’d)(cont’d)

Article 9: Right to social securityArticle 10: Protection of the family,

mothers and children

ICESCR: Substantive rights ICESCR: Substantive rights (cont’d)(cont’d)

Article 11: Right to an adequate standard of living, including food, housing and clothing

Article 12: Right to highest attainable standard of health

ICESCR: Substantive rights ICESCR: Substantive rights (cont’d)(cont’d)

Article 13: Right to educationArticle 14: Plan of action for compulsory

and free primary educationArticle 15: Right to take part in cultural

rights, to benefit from scientific progress, and protection of intellectual property

JusticiabilityJusticiability

Incorporation of the ICESCR into Incorporation of the ICESCR into domestic lawdomestic law

Self-executing nature of the treaty in domestic law: treaty is considered superior to domestic law including the Constitution (MONISM)

Treaty prevails over domestic law but not over the Constitution

Treaty has no domestic legal effect unless it is formally incorporated into domestic law by the appropriate legislative process (DUALISM)

Whatever a treaty’s status may be domestically, the State is bound to observe its provisions at the international level

Justiciability/ Violations• Distinction between the inability and lack of will of States

parties in complying with their obligations

• Violations by commission and by ommission

Identification of policy gaps

Empowerment and participation of individuals and groups

OPTIONAL PROTOCOL

Adopted 10 December 2008, opened for signature 24 September 2009

Optional Protocol to ICESCROptional Protocol to ICESCR

ICCPR and ICESCR on equal footing in terms of recognition of justiciability

International accountability of States parties vis-à-vis its citizens

Will build a body of international case law on ESCR Will enhance understanding of ESCR at the

international level Currently 31 signatories, 0 ratifications (28 January 2010) Will enter into force after 10 ratifications

Nature of obligationsNature of obligations

LIMBURG PRINCIPLESLIMBURG PRINCIPLES

education & information campaigns for public awareness

Obligations of States parties

Respect (refrain from direct or indirect interferance)

Protect (prevent third parties from interfering)

Fulfil (core obligations and progressive realization)

Provide Facilitate Promote

positive measures

for those unable to do so

Article 2.1 ICESCR

Article 2.1 – Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economical 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

OBLIGATIONS OF STATES OBLIGATIONS OF STATES PARTIESPARTIES

Undertakes to take steps ... By all apropriate means, including particularly the adoption of legislative measures

– Immediate requirement– Legislative measures, but also administrative, judicial,

policy, economic, social and educational

OBLIGATIONS OF STATES OBLIGATIONS OF STATES PARTIESPARTIES

To [achieve] progressively the full realization of the rights

– Immediate action required– Some rights not progressively (especially non-

discrimination, non-derogation– Duty exists independently of an increase in

available resources

OBLIGATIONS OF STATES OBLIGATIONS OF STATES PARTIESPARTIES

To the maximum of its available resources

– Obliges State parties to ensure minimum subsistence rights, regardless of the level of economic development

– Available resources applies to both domestic resources and to any international economic or technical asssistance

– Overall priorities should ensure that resource allocation is in conformity with Convenant obligations

OBLIGATIONS OF STATES OBLIGATIONS OF STATES PARTIESPARTIES

Without discrimination

– Provision of judicial review and other recourse procedures in case of discrimination

– Grounds of discrimination are non-exhaustive– Special measures are not discrimination– Includes duty of State party to prohibit discrimination

by private persons and bodies in any field of public life

The Committee on ESCRThe Committee on ESCR

The Committee on ESCRThe Committee on ESCR Supervisory body of the ICESCR Created by the Economic and Social Council (ECOSOC) Monitors States parties’ compliance with treaty provisions Normative interpretation and clarification of the Covenant’s

provisions (general comments) Cooperation with other UN organs, NGOs and NHRIs

The Committee - key factsThe Committee - key facts 18 independent experts, elected for a term of four years by

States parties in accordance with ECOSOC Resolution 1985/17 of 28 May 1985 (elections every 2 years for half of Committee members, re-election possible)

Members serve in their personal capacity Meets 2 times a year in Geneva (May and November) Each session: 3 weeks (to consider 5 State party reports) plus

one week Pre-sessional Working Group (to draft list if issues) As of end 2009, Committee met 43 times

Responsibilities of CESCRResponsibilities of CESCR

Monitoring States parties’ compliance with their obligations under the Covenant, through the consideration of initial and periodic reports

Normative interpretation and clarification of ESCR and other issues arising from the Covenant: General Comments, Days of General Discussion and statements

Cooperation with UN organs, their subsidiary organs and Specialized Agencies

Current Committee membersCurrent Committee members Mr. Abdel-Moneim (Vice-chairperson) – Egypt Mr. Atangana – Cameroon Ms. Barahona Riera – Costa Rica Ms. Bonoan-Dandan – Philippines Ms. Bras Gomes (Vice-chairperson) – Portugal Mr. Dasgupta- India Mr. Kerdoun – Algeria Mr. Kolosov – Russian Federation Mr. Kedzia (Rapporteur) – Poland Mr. Marchan Romero (Chairperson) – Ecuador Mr. Martynov – Belarus Mr. Pillay – Mauritius Mr. Riedel – Germany Mr. Schrijver – the Netherlands Mr. Sadi - Jordan Mr. Zhan – China Mr. Texier – France Mr. Tirado Mejia - Colombia

Committee structure and supportCommittee structure and support Country rapporteur:

– tasked to draft a list of issues (LOIs) based on State party report

Pre-sessional Working Group (PSWG)– 5 Committee members nominated by Chairperson– Each PSWG member is allocated responsibility to draft preliminary LOIs regarding

a particular reporting State (Country rapporteur)– PSWG considers and adopts LOIs to be shared with State

Full Committee– One year after PSWG, full Committee will consider State party report and LOIs

(and possible reply) in interactive dialogue with State party and adopts recommendations (concluding observations)

Role secretariat (OHCHR)– Supports the Committee administratively and substantively – Deadline submission of written information – one month before session

REPORTING CYCLE:REPORTING CYCLE:

1. STATE REPORT

(processing: up to 12 months)

2. PRE-SESSIONAL WORKING GROUP LIST OF ISSUES(6-18 months prior to session)

3. REPLIES TO LIST OF ISSUES

4. SESSION: FACE TO FACE DIALOGUE (2 or 3 three-hour meetings)

5. CONCLUDING OBSERVATIONS

- Encourage ratification and States’ compliance with their reporting obligations;- Engage in dialogue with the State party and come with input into State reports

- Submission of written information- Oral presentation before WG

- Written information or ”parallel reports”- Written statements - Oral statements during “NGO hearing”

- Use as a tool to defend ESCR- Follow-up: monitor implementation & report back to the Committee

ICESCR monitoring:ICESCR monitoring:reporting procedure provisionsreporting procedure provisions

Article 16: submission of reports by States parties on measures adopted and progress made in achieving the observance of ESCR

Article 17(1): Initial report to be submitted two years after entry into force; periodic reports to be submitted approx. every five years thereafter

ICESCR reporting procedure ICESCR reporting procedure provisions (cont’d)provisions (cont’d)

Article 17(2): The report should contain factors and difficulties affecting the degree of fulfilment of Covenant obligations

Article 17(3): Cross-referencing to information provided to other parts of UN

Articles 18, 19, 20, 21, 22: Cooperation with other parts of UN

Functions of ReportingFunctions of Reporting Initial Review

Monitoring

Policy formulation

Public scrutinyEvaluation

Acknowledging Problems

Information exchange

The different types of reportsThe different types of reports

The common core document

The initial report

The periodic reports

The annexes

NEW REPORTING REQUISITESNEW REPORTING REQUISITES

Common core document

- information of a general nature; permanently

updated (relevant for all treaties)

Treaty specific document

- information on respect, protection and fulfilment

of provisions of a specific treaty, in this case ICESCR

The contents of periodic The contents of periodic reportsreports

Information – about progress since the previous report: new

laws, policies, measures and case law– Complementary information– on measures taken to implement the

conclusions and recommendations of the Committee

Follow-up procedureFollow-up procedure(adopted on 1 December 1999, 21(adopted on 1 December 1999, 21stst session) session)

Procedure includes: In concluding observations, Committee requests

State party to inform in next report on steps taken Committee may request that information be

provided prior to next reporting deadline, for consideration at next PSWG

If information is not provided, Committee may request on-site visit

Reporting statisticsReporting statistics

As of end 2009, the Committee faced a backlog of appr. 25 State party reports

Overdue or non-reporting is a problem faced by all treaty bodies

The CESCR adopted at its 36th session a procedure through which it:– Reminds State parties to submit the overdue report,

and, in the absence of a response,– Reviews the State party’s compliance in view of all

information available to it.

Recent activities of CommitteeRecent activities of Committee

Days of general discussion– Right to take part in cultural life (40th session, 2008)– Non-discrimination & ESCR (41st session, 2008)

General Comments– On non-discrimination (42nd session, 2009)– On right of everyone to take part in cultural life (43rd session,

2009

Statements– On the world food crisis (40th session, 2008)

National Actors involvedNational Actors involved

State delegationState delegation

A high-level inter-ministerial team

Headed by a senior official

A balanced composition

Regular meetings

National ActorsNational Actors

Human Rights Commissions

Ombudsman

NGOs

Cobs

Judicial System

Parliament

Independent MediaProfessional Associations

Social Actors

Religious Organisations

Academic Institutions

Forms of NGO participation in the Forms of NGO participation in the Committees’ workCommittees’ work

Encourage governments to make a comprehensive and accurate report

Some governments encourage participation of minority groups, individuals, etc

Publish fact that report on human rights is being prepared

Forms of NGO participation in the Forms of NGO participation in the Committee’s work (cont)Committee’s work (cont)

Information submitted in written form (parallel report) or orally to the Secretariat of the Committees

Written information can be provided at all times prior to the examination of the report

Oral presentations: first Monday of each session or during “lunchtime briefings”

Continued contact with Committee members during the session and inter-sessionally

NGO activities at the national level NGO activities at the national level (monitoring)(monitoring)

Awareness–raising of the Covenant and of Committee activities (through use of the media and human rights education)

Follow–up to concluding observations of the Committee at the national level

Interaction and cooperation with the Government or with NHRIs

NGO monitoring at the international NGO monitoring at the international levellevel

Prepare a shadow report – coordinated consolidated report

Focus attention on urgent issuesProvision of concise and up-to-date country

information to complement the State reportAttendance at Committee sessionsInteraction with Committee members in-

session

NHRI activities at the national level NHRI activities at the national level (monitoring)(monitoring)

Awareness–raising of the Covenant and of Committee activities through information, education & research

Encouragement of ratification & implementation of international human rights standards; follow–up to concluding observations of the Committee at the national level

Promotion of conformity of national laws and practices with international standards

Drawing attention of Government to human rights violations, proposing remedies and commenting on Governmental responses

NHRI activities at the national NHRI activities at the national level (monitoring) contlevel (monitoring) cont

Submission of opinions, recommendations, proposals and reports relating to human rights to the Government, parliament or any other competent body;

Contribution to the country’s human rights treaty reporting processes;

Conciliation and mediation.

Key documentationKey documentation

Factsheet No.16/rev.1 on ICESCR and the Committee

Compilation of guidelines on the form and content of reports to be submitted by States Parties to the international human rights treaties (HRI/GEN/2/Rev.6)

Information Note for NGOs http://www2.ohchr.org/english/bodies/cescr/NGOs.htm

OHCHR webpage on ICESCR and the Committee http://www2.ohchr.org/english/bodies/cescr/index.htm