THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) &

1. THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS (ICESCR) & THE WORK OF THE COMMITTEE ON ESCR OHCHR, January 2010

2. CONTENTS • The International Covenant on ESCR • Nature of obligations • The Committee on ESCR • National Actors involved • Justiciability

3. The International Covenant on Economic, Social and Cultural Rights

4. UN 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 Opt. Protocols ICCPR ICESCR UDHR CERD CRC CEDAW MWC CAT

5. Core international human rights treaties 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)

6. Core international human rights treaties • 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

7. Core international human rights treaties 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)

8. International Covenant on Economic, Social and Cultural Rights • Adoption 1966, entry into force in 1976 • Primary international instrument guaranteeing economic, social and cultural rights for ALL • Part of the International Bill of Human Rights (with Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights)

9. Ratification of ICESCR by world regionsas at 28 January 2010 Total number of States parties: 160 (out of 191 UN member States)

10. ICESCR: Rights • Article 1: Right to self-determination • Article 2 • (1): Progressive realization • (2): Non-discrimination • Article 3: Equality of men and women • Article 4: Limitations clause • Article 5: Non-derogation

11. ICESCR: Substantive rights • Article 6: Right to work • Article 7: Right to just and favourable conditions of work • Article 8: Trade union rights

12. ICESCR: Substantive rights (cont’d) • Article 9: Right to social security • Article 10: Protection of the family, mothers and children

13. ICESCR: Substantive rights (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

14. ICESCR: Substantive rights (cont’d) • Article 13: Right to education • Article 14: Plan of action for compulsory and free primary education • Article 15: Right to take part in cultural rights, to benefit from scientific progress, and protection of intellectual property

15. Justiciability

16. Incorporation of the ICESCR into domestic 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

17. OPTIONAL PROTOCOL Adopted 10 December 2008, opened for signature 24 September 2009 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

18. Optional 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

19. Nature of obligations

20. LIMBURG PRINCIPLES • Obligations of States parties • Respect(refrain from direct or indirect interferance) • Fulfil(core obligations and progressive realization) • Protect (prevent third parties from interfering) Provide Facilitate Promote for those unable to do so positive measures education & information campaigns for public awareness

21. 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

22. OBLIGATIONS OF STATES PARTIES • 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

23. OBLIGATIONS OF STATES PARTIES • 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

24. OBLIGATIONS OF STATES PARTIES • 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

25. OBLIGATIONS OF STATES PARTIES • 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

26. The Committee on ESCR

27. The 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

28. The 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

29. Responsibilities 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

30. Current 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

31. Committee 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

32. - Encourage ratification and States’ compliance with their reporting obligations; - Engage in dialogue with the State party and come with input into State reports REPORTING CYCLE: - Submission of written information - Oral presentation before WG • STATE REPORT (processing: up to 12 months) • PRE-SESSIONAL WORKING GROUP LIST OF ISSUES (6-18 months prior to session) • REPLIES TO LIST OF ISSUES • SESSION: FACE TO FACE DIALOGUE (2 or 3 three-hour meetings) • CONCLUDING OBSERVATIONS - 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

33. ICESCR monitoring:reporting 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

34. ICESCR reporting procedure 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

35. Functions of Reporting Initial Review Information exchange Monitoring Acknowledging Problems Policy formulation Evaluation Public scrutiny

36. The different types of reports • The common core document • The initial report • The periodic reports • The annexes

37. NEW 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

38. The contents of periodic reports • 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

39. Follow-up procedure(adopted on 1 December 1999, 21st 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

40. Reporting 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.

41. Recent 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)

42. National Actors involved

43. State delegation • A high-level inter-ministerial team • Headed by a senior official • A balanced composition • Regular meetings

44. National Actors Human Rights Commissions Cobs Ombudsman Parliament Religious Organisations Judicial System NGOs Professional Associations Independent Media Social Actors Academic Institutions

45. Forms of NGO participation in the Committees’ 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

46. Forms of NGO participation in the 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

47. NGO activities at the national level (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

48. NGO monitoring at the international level • Prepare a shadow report – coordinated consolidated report • Focus attention on urgent issues • Provision of concise and up-to-date country information to complement the State report • Attendance at Committee sessions • Interaction with Committee members in-session

49. NHRI activities at the national level (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

50. NHRI activities at the national level (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.