ESC Rights Update from Geneva: 40th session of the UN Human Rights

ESC Rights Update from Geneva: 40th session of the UN Human Rights Council (25 February to 22 March 2019)

This Update provides information about:

• Economic, social and cultural rights

• Right to adequate housing

• Right to Food

• Human rights and the environment

• Right to work

• Cultural rights

• Other initiatives of interest

The UN High Commissioner for Human Rights, Michelle Bachelet, in her address to the Human Rights Council, focused her comments on gross inequality and issues related to economic, social and cultural rights, stating: ‘Inequalities in income, wealth, access to resources, and access to justice constitute fundamental challenges to the principles of equality, dignity and human rights for every human being.’ She named the existential threat of climate change, structural economic injustices and gross inequalities, as three of the most serious challenges facing humanity.

The High Commissioner emphasized that inequalities affect all countries and are generated by violations of both economic, social and cultural rights, and civil and political rights and these different violations can exacerbate each other. She explained that ‘people feel excluded from the benefits of development and deprived of economic and social rights – leading to alienation, unrest, and sometimes violence,’ and gave the recent examples of Sudan, Haiti and France.

Tackling inequalities is also a prerequisite to achieving the SDGs and civil participation is necessary for sustainable, effective development, said the High Commissioner. She noted the cases of China and India, where poverty alleviation had occurred but certain minorities remained discriminated against and their civil and political rights curtailed. She also noted the link between economic inequalities and other global trends, such as migration, violent extremism (mentioning the conflicts in Cameroon, Myanmar and Syria).

The High Commissioner also hailed some positive achievements in gender equality, such as the first female President of Ethiopia, but noted that violence against women remains a serious problem throughout the world. She concluded her speech:

‘inequalities, and the failure to give equal weight and respect to all human rights, have the power to erode all three pillars of the UN: peace and security, development and human rights. …….But human rights build hope. They bind humanity together with shared principles and a better future, in sharp contrast to the divisive, destructive forces of repression, exploitation, scapegoating, discrimination – and inequalities.’

Economic, social and cultural rights

The UN Secretary-General presented his annual report on the question of the realisation of economic, social and cultural rights in all countries, this year on the topic: ‘the role of economic, social and cultural rights in empowering people and ensuring inclusiveness and equality(A/HRC/40/29). The report also takes up the High Commissioner’s theme, of economic inequalities, highlighting how the normative framework of economic, social and cultural rights provides guidance to states on implementing the SDGs in a more effective and inclusive manner.

The report begins by exploring the understanding of inequality from a human rights perspective, arguing that sharp increases in inequality contributes to instability, discontent and conflict. Addressing economic inequality is necessary, but insufficient, to eradicate poverty, because it is necessary to also combat political, social and environmental inequality and power imbalances in society.

The importance of addressing both horizontal and vertical inequalities, and direct and indirect discrimination, are emphasized. In this respect, the report underlines the importance of collecting and disaggregating data to monitor inequalities, but cautioning about the need to put in place safeguards to protect subjects against breaches of privacy and mis-use. Human rights indicators, based on international legal standards, offer strong tools for analyzing the data.

The Secretary-General notes that the concept of minimum core obligations under the ICESCR, ‘offers an important entry point for ensuring inclusiveness and equality’, giving examples in relation to the right to social security, gender equality, unpaid care work and social protection floors for persons with disabilities.

Finally, the report discusses how various economic and social rights are related to people’s empowerment. It emphasises the right to participate and its crucial role in reducing inequalities and as an element of a human rights-based approach to sustainable development. Further, empowerment through the justiciability of ESC rights is explored and examples of important economic and social rights cases discussed.

Resolution on economic, social and cultural rights

The Council adopted resolution (A/HRC/RES/40/12) on the question of the realization in all countries of economic social and cultural rights. In the resolution, the Council calls upon States that are yet to ratify the ICESCR, to consider doing so with priority and to review any reservations to the Covenant. It emphasises the need for States to take bold and transformative steps to shift the world on to a sustainable and resilient path in line with the pledge in the Agenda 2030 to leave no one behind.

In addition, the Council encourages States to consider appropriate measures to promote de facto equality which remains one of the key aims of the Sustainable Development Goals. In this respect the Council underlines the importance of developing human rights training and education, which can help build societies that respect dignity, equality, inclusion, integrity, diversity and the rule of law.

To this end, the Council calls upon States to, inter alia, promote the use of human rights indicators to measure progress in the implementation of laws, policies and actions to address discrimination and inequalities, and to identify patterns of discrimination in law, policies and practices, and address entrenched structural barriers and unequal power relations that generate and perpetuate inequality over generations.

Finally, the resolution requests the Secretary-General to submit to the Council in 2020 a report on the role of new technologies for the realization of economic, social and cultural rights.

Right to Adequate Housing

Access to justice for the right to adequate housing, was the topic of the thematic report by the Special Rapporteur on the right to adequate housing, presented to this Council session A/HRC/40/61. The Special Rapporteur also presented to the Council her reports on her country visits to Korea (A/HRC/40/61/Add.1) and Egypt (A/HRC/40/61/Add.2).

In relation to her visit to Egypt, the Special Rapporteur raised serious concerns about reprisals against persons with whom she met. Egypt took the floor in the Interactive Dialogue with the Special Rapporteur to refute the reprisals claims and criticize the manner in which the Special Rapporteur carried out her mission and raised the subsequent allegations of reprisals. See HEREa call by civil society organisations for a firm response to the reprisals.

In her thematic report, the Special Rapporteur contends that the current global housing crisis can be understood as a crisis in access to justice, since without access to justice, housing is not properly recognized or addressed as a human right. She urges States to ensure a broad understanding of access to justice, which addresses, procedural, practical and substantive barriers so that people living in homelessness and inadequate housing can challenge the policy choices and decisions that created the conditions in which they live.

The Special Rapporteur outlines the importance of the legal protection of the right to adequate housing (including through other rights such as the right to life) and of the justiciability of that right in courts. She then lays out 10 key principles of access to justice for the right to housing:

Principle 1 – Access to justice must be ensured by all appropriate means and address the needs of diverse groups.

Principle 2 – States must implement the right to housing within the domestic legal system so as to provide at least the same level of protection as is afforded under international human rights law.

Principle 3 – Individuals and groups, households and communities must have standing to advance claims and to participate throughout legal processes and the implementation of remedies.

Principle 4 – Denying access to justice cannot be justified on the basis that the right to housing is not considered justiciable within the State’s domestic legal order.

Principle 5 – Access to justice must apply to both negative and positive State obligations, including obligations to progressively realize the right to housing.

Principle 6 – States may delegate components of access to justice for the right to housing to administrative bodies, but judicial remedies must be available when needed.

Principle 7 – Courts must interpret and apply domestic law in accordance with the State’s obligations to respect, protect and fulfil the right to housing.

Principle 8 – States must promote decision-making that is consistent with the right to housing.

Principle 9 – Remedies must address both individual and systemic violations.

Principle 10 – Remedies must be implemented by Governments and enforced by courts with participation by rights holders.

Also addressed is the importance of enlivening the concept of ‘progressive realisation’ in the adjudication of housing rights violations, through the application of the standard of reasonableness. The Special Rapporteur stresses: ‘The assessment of reasonableness relies on hearing from rights holders. It is a contextual analysis that takes as its starting point the dignity interests brought to light through access to justice.’ She points to the emerging jurisprudence of the CESCR on the right to housing which has articulated the reasonableness standard as requiring the State to pay attention to both individual circumstances of the claimant and structural factors.

The report also looks at access to justice in the specific context of evictions and displacement and in relation to criminalization and discrimination based on housing status. It then discusses the distinctive approaches necessary to ensure access to justice for the right to housing, for different groups, such as indigenous peoples, women, children and migrants.

The report concludes by considering the role of National Human Rights Institutions and of informal and customary justice systems, in delivering access to justice, and options for obtaining a remedy for violations of the right to housing by business actors and States’ obligations in this respect.

Right to Food

The Special Rapporteur on the right to food presented her annual thematic report focusing on fishery workers’ rights (A/HRC/40/56). In addition the Special Rapporteur presented reports of her country visits to Vietnam in November 2017, Indonesia in April 2018 and Argentina in September 2018.

The report begins by highlighting the instrumental role played by fishery workers in the progressive realization of the right to food and nutrition and the fight against global hunger. The report describes the recent trends in global fisheries and fish consumption, and discusses how fishery workers, who are critical to meeting the rising global demand for fish, suffer persistent human and labour rights violations. These violations undermine the ability of workers to secure accessible, available and adequate food for themselves and for their families, negatively impacting their own right to food.

The report notes that global fish consumption has doubled with almost 3.2 billion people relying on fish for their animal protein. The report says there is a lack of recognition of the contribution that inland fisheries make towards the greater fisheries sector, due to their small-scale nature. Yet, they remain integral to food security, poverty alleviation and sustainable development.

With the globalization of fisheries, there has been a rise in exploitative and dangerous working conditions in global supply chains, which aim to maximize outputs at the lowest economic cost, often at the expense of workers. This is especially rife at the harvest and processing stages of fishery chains, where there is a lack of adequate safeguards and accountability mechanisms.

The Special Rapporteur notes the poor occupational health and safety standards in the industry, as most work in areas that are 'dirty, dangerous and difficult'. States often fail to implement the applicable laws on health and safety standards.

Other challenges include: lack of set minimum wages; long hours of strenuous work; limited collective bargaining rights; and lack of social protection. All of these challenges negatively impact the workers and their ability to provide for their families thus impacting on the right to food of their families.

The report contends that women, children, indigenous people, coastal communities and migrant workers, in the fishery industries are in dire need of social protection since they are most vulnerable to exploitation, including human trafficking, fraudulent and deceptive recruitment, forced labour, physical, mental and sexual abuse, homicide, child labour, abandonment and discrimination.

The Special Rapporteur calls upon all actors involved, states, the private sector, international organizations and consumers to: take measures to incentivize greater protections for fishery workers; eliminate labour exploitation along supply chains; and ensure that fishery workers are included in decision-making processes and are guaranteed freedom of association.

In particular the Special Rapporteur recommends that all actors: improve human rights protections for fishery workers; adopt and enforce legislation criminalizing contemporary forms of slavery practices in the fisheries sector; decrease child labour; ratify all ILO and IMO conventions relevant to workers in the fisheries sector and ensure their effective implementation; reduce occupational and safety hazards; improve the wages of the workers; eliminate exploitative working conditions and refuse to purchase fish from fisheries associated with illegal, unregulated and unreported fishing practices and exploitative work conditions.

Resolution on the right to food

The Council adopted by consensus a resoution (RES/A/HRC/40/7) on the right to food.

In this resolution, the Council expressed its deep concern that, the number of hungry people in the world is unacceptably on the rise and the vast majority of hungry people live in developing countries. Without increased efforts there is a risk of falling far short of achieving the target of the Sustainable Development Goals on ending hunger by 2030.

The Council also expressed its concerns that women and girls are disproportionately affected by hunger, food insecurity and poverty despite the fact that they contribute more than 50 per cent of the food produced worldwide. This is partly attributable to gender inequality and discrimination. The Council thus encouraged States to mainstream a gender perspective in food security programmes, to take action to address any form of gender inequality and discrimination against women through women’s empowerment and to strengthen women’s role in decision-making.

In order to combat hunger, the Council called upon States to consider establishing appropriate institutional mechanisms and adopting national plans aimed at combating hunger. It urged States to consider reviewing any policy or measure that could have a negative impact on the realization of the right to food. This includes States making every effort to ensure that their international policies, whether of a political or economic nature, including international trade agreements, do not have a negative impact on the right to food in other countries.

In addressing the challenges facing the enjoyment of the right to food by indigenous peoples, the Council called upon States to take action to address obstacles, challenges and the continuous discrimination against indigenous peoples that impede their full enjoyment of the right to food.

The mandate of the Special Rapporteur on the right to food was extended for a further three years.

Human Rights and the environment

The new Special Rapporteur on Human Rights and the Environment, David Boyd, was appointed on the 1st of August 2018 taking over from John H. Knox. Mr Boyd presented his first report to the Council during this session (A/HRC/40/55). His report focused on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, and specifically addressing air pollution. He also presented a report on his country visit to Fiji in October 2018.

In his report, the Special Rapporteur encourages swifter global recognition of the right to a healthy environment, after noting that more than 100 states have recognized this right either in their constitutions, international treaties, legislation or policies. The Special Rapporteur highlights the ability to breathe clean air as a component of the right to a healthy environment and discusses how air pollution influences negatively the enjoyment of other fundamental rights such as the right to life and the right to health, especially for vulnerable members of society. He notes that action at the household, local, national, regional and international levels is required.

The report also discusses other impacts of air pollution on human health, such as respiratory illness and infections, heart disease, stroke, lung cancer and negative birth outcomes. New evidence suggests that there is a link between air pollution and other health issues like cataracts, ear infections, asthma in children and chronic deficits in lung function.

Perhaps more concerning is the fact that more than 90% of the world’s population live in places where the minimum levels of fine particulate matter overshoot the safe levels set by the WHO. This means that more than 6 billion people, of which 2 billion are children, are inhaling air that is hazardous to their health, which results in 7 million deaths annually.

According to the report, vulnerable groups especially women, children, the elderly, minorities, indigenous peoples and members of traditional communities, people living in poverty and people with pre-existing health conditions, bear the greatest brunt of air pollution. Women for example suffer from high exposure due to their roles in cooking, while children’s growth and brain development can be impaired by exposure to air pollution.

People living in poverty resort to the use of solid fuels as they can’t afford alternative sources of fuel for cooking or heating and major plants and factories that emit pollution are commonly located in poor areas.

The report also discusses the relationship between air pollution and climate change noting that policy and legislative steps taken to address air pollution also serve to address the issue of climate change by reducing greenhouse gas emissions.

The enjoyment of other fundamental rights is greatly affected by air pollution. These include the right to life, the rights to health, water, food, housing and an adequate standard of living and the rights of the child. According to the report, there is also a close link between improved air quality and the realization of the Sustainable Development Goals including: Goal 1 on no poverty; Goal 5 on gender equality; Goal 6 on clean water and sanitation; Goal 9 on industry, innovation and infrastructure; Goal 10 on reduced inequalities; and Goal 13 on climate action.

The report highlights the human rights obligations relating to clean air: procedural obligations; substantive obligations; and special obligations towards those in vulnerable situations. The procedural obligations of States include: promoting education and public awareness; providing access to information; ensuring freedom of expression, association and assembly and facilitating public participation in the assessment of proposed projects, policies and environmental decisions; and the availability of remedy.

Substantive obligations require states to refrain from air pollution and also to ensure private actors and businesses refrain from practices that result in air pollution. States must monitor air pollution and its health impacts, assess the sources of air pollution, publicly report on air quality, establish air quality legislation and policies, develop air quality action plans, implement and enforce air quality rules and evaluate and revise air quality standards and plans.

Some of the concluding recommendations made by the Special Rapporteur include: reducing, minimizing or avoiding government actions that cause air pollution; eliminating all remaining fossil fuel subsidies, except for LPG cooking programme; conducting assessments of the environmental, health and human rights implications of new projects, policies and plans that could cause air pollution; prioritizing emissions reductions from high-polluting industrial facilities; protecting and expanding urban green space; and shifting to cleaner vehicles by strengthening emission standards and fuel efficiency rules while accelerating the transition to zero emission vehicles.

Resolution on environmental human rights defenders

The Council adopted by consensus a resolution recognising the contribution of environmental human rights defenders to the enjoyment of human rights, environmental protection and sustainable development (RES/A/HRC/40/11).

In this resolution, the Council expressed grave concern at the situation of environmental human rights defenders around the world. In particular, it was alarmed by the increasing violations against environmental defenders, including killings, gender-based violence, threats, harassment, intimidation, smear campaigns, criminalization, judicial harassment, forced eviction and displacement. It stressed that environmental human rights defenders, must be ensured a safe and enabling environment to undertake their work free from hindrance and insecurity.

The Council noted that the protection of human rights defenders can only be achieved through an approach which promotes and celebrates their work. Recognising that democracy and the rule of law are essential components for the protection of human rights defenders, the Council urged States to take measures to strengthen democratic institutions, safeguard civic space, uphold the rule of law and combat impunity. It also urged States to acknowledge, through public statements, policies, programmes or laws, the important role that human rights defenders play in the promotion of all human rights, democracy and the rule of law. This should extend to respecting the independence of their organizations and avoiding the stigmatization of their work.

States were urged to adopt laws guaranteeing the protection of defenders, put in place holistic protection measures for and in consultation with defenders, and ensure investigation and accountability for threats and attacks against environmental human rights defenders.

The Council also called upon States to implement the Guiding Principles on Business and Human Rights and to encourage, and where appropriate, require, all business enterprises to carry out human rights due diligence, including with regard to human rights relating to the enjoyment of a safe, clean, healthy and sustainable environment.

Finally, States were encouraged to facilitate public awareness of and participation in, environmental decision-making, implementation, monitoring and follow-up and review of the 2030 Agenda for Sustainable Development.

Right to work

The annual report of the High Commissioner for Human Rights on the realisation of the right to work, was presented to this Council session. The report examines the relationship between the right to work and the enjoyment of all human rights by young people (A/HRC/40/31).

This an important report because youth unemployment and labour conditions are topics of global concern, which are not elaborated in great detail in CESCR General Comment No. 18 on the right to work. The report analyses the major challenges faced by young people in accessing and participating in the labour market. It notes that the major challenges facing youth in accessing the labour market include: informal jobs that offer no social and legal protection; widespread use of austerity measures; effects of economic crises; gender discrimination in conditions of work; and inadequate education and training that is adapted to the changing needs of the labour market.

The report also notes that young women in particular face additional barriers in accessing and participating in the labour market. This extends to high school drop-out rates due to early marriage, pregnancy and sexual violence at school.

The report highlights that the right to work is essential for the realization of other rights, including the right to adequate housing and standards of living, the right to social security, the right to education and the right to participation in the economic, social and political spheres.

In relation to young people, the right to work requires States to create favorable measures and macroeconomic conditions for the realization of the right and to adopt specific job promotion policies targeted at youth. Those measures include putting in place specialized services for youth that assist them in identifying and securing available employment, guaranteeing the freedom to work and to choose a profession, prohibiting forced labour, and ensuring equality and non-discrimination in access to work, including guaranteeing equal pay for equal work for men and women.

Furthermore, the report highlights how the 2030 Agenda for Sustainable Development emphasises the pivotal role of youth employment in poverty alleviation, economic growth and peace and prosperity for all. It therefore calls for energizing youth programs that aim to strengthen young people’s capacity and skills for innovation, creativity and entrepreneurship, in readiness for the labour market.

Finally, the report offers recommendations such as: investing in youth education and technical and vocational training; promoting the transition from school to work; closing the gender gap by removing all barriers; ensuring equality and non-discrimination in access to work; discouraging unpaid internships; actively promoting young people’s right to participation and representation in institutional political processes and policymaking; and protecting young people from all forms of labour exploitation and age-based discrimination in accessing and participating in the labour market.

Culture Right

To mark the tenth anniversary of the mandate on cultural rights, the Special Rapporteur on cultural rights, Karima Bennoune, presented her annual report to the Council titled ‘Cultural rights: tenth anniversary report’ (A/HRC/40/53) together with a report of her country visit to Malaysia (A/HRC/40/53/Add.1). The thematic report examines the cultural rights approach to the universality of human rights and the close interrelationship between universality and cultural diversity and suggests strategies for advancing cultural rights during the next decade.

The Special Rapporteur documents the threat to the human rights system and cultural diversity, posed by selective approaches to universality and cultural relativist arguments. Such approaches exclude certain rights, certain persons or groups and recognizing only civil and political or economic, social and cultural rights as real human rights. While cautioning against abuse of cultural arguments to justify violations of human rights, she also demonstrates how cultural diversity and cultural rights contribute to strengthening the universal framework of human rights. She calls for a vigorous defence of universality that is grounded in cultural diversity.

The Special Rapporteur emphasizes that cultural rights cover a broad range of issues, such as expression and creation, including diverse forms of art; language; identity and belonging to multiple, diverse and changing groups; development of specific world visions and the pursuit of specific ways of life; education and training; access and contribution to, and participation in, cultural life; and the conduct of cultural practices and access to cultural heritage.

The report also clarifies the relationship between cultural rights and other human rights, demonstrating the position of cultural rights at the intersection of civil and political rights and economic and social rights. According to the Special Rapporteur, cultural rights are transformative and empowering hence providing important opportunities for the realization of other human rights.

Furthermore, the report highlights the relationship between cultural rights and women rights noting that the enjoyment of all other human rights by women hinges on ensuring that women can exercise their cultural rights in full equality, including the right to determine which traditions and cultural practices need to be preserved, modified or discarded. This approach, highlights the cultural dimensions of the principle of equality and non-discrimination.

The biggest challenge to cultural rights, says the Special Rapporteur, is cultural relativism. She underlines that it is important to continue making the distinction between cultural rights which amplify rights and are protected by universal human rights law, and cultural relativism, which diminishes rights in the name of culture and has been repudiated by international law.

In the next 10 years of the mandate, the Special Rapporteur hopes to address a number of critical issues such as: public space as a forum for the enjoyment of cultural rights; the work of cultural rights defenders; the cultural rights of persons with mixed identities; current controversies regarding cultural appropriation and misuse of that concept; the cultural rights of indigenous peoples; and discrimination in the field of cultural rights. A number of other issues, such as the impact of social media and the Internet on cultural rights and the cultural rights of youth and of rural people, will also be addressed by the mandate.

An interesting recommendation of the Special Rapporteur was for the Committee on Economic, Social and Cultural Rights to dedicate more attention to article 15 of the International Covenant on Economic, Social and Cultural Rights, in its dialogue with States and to conduct outreach so as to encourage more civil society groups working in the cultural rights area to engage with the Committee through the submission of shadow reports and the submission of cases under the Optional Protocol.

Resolution on cultural rights

In a resolution on the promotion of the enjoyment of the cultural rights of everyone and respect for cultural diversity (RES/A/HRC/40/6), adopted by consensus, the Council welcomed the work and contributions of the Special Rapporteur in the field of cultural rights and requested that she pay due attention to the enjoyment of cultural rights by persons with disabilities and to participate in relevant international fora related to the implementation of the 2030 Agenda for Sustainable Development, including by providing advice on the effective respect, protection and fulfilment of cultural rights in the implementation of the 2030 Agenda.

In addition, the Council affirmed the responsibility of the State to promote and protect cultural rights, and that these rights should be guaranteed for all, without discrimination. Further, the Council recognised that respect for cultural rights is essential for development, peace, the eradication of poverty, building social cohesion and the promotion of mutual respect, tolerance and understanding between individuals and groups.

Other initiatives of interest

• Human rights impact assessments of economic reforms

The Independent Expert on the effects of foreign debt and other related international financial obligations of States on the full enjoyment of human rights, particularly economic, social and cultural rights, presented to the Council his ‘Guiding principles on human rights impact assessments of economic reforms’ (A/HRC/40/57).

The Council also adopted a resolution on ‘The effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’ (RES/A/HRC/40/8).

• Special procedures mandate holders

The annual communications report of Special Procedures was submitted to the Council (A/HRC/40/79). This report provides a complication of all the communications issued by the Special Procedures mandate holders in the past year.

In addition, there was a report on the twenty-fifth annual meeting of special procedures mandate holders of the Human Rights Council (4-8 June 2018) (A/HRC/40/38) and a report providing facts and figures on the special procedures for 2018 (A/HRC/40/38/Add.1).

• SDGs, development and human rights

The Office of the UN High Commissioner for Human Rights submitted to the Council its summary report (A/HRC/40/34) of the intersessional meeting for dialogue and cooperation on human rights and the 2030 Agenda for Sustainable Development, which occurred on 16 January 2019.

The meeting was mandated by resolution 37/24 of the Human Rights Council and it's theme was 'Empowering people and ensuring inclusiveness and equality', which is to be the theme in 2019 of the high-level political forum on sustainable development, which will review global progress in achieving the following Goals: 4 (quality education), 8 (decent work and economic growth), 10 (reduced inequalities), 13 (climate action), 16 (peace, justice and strong institutions) and 17 (partnership for the Goals).

The report provides a summary of each of the 5 sessions conducted during the day-long intersessional meeting.

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The next session of the Human Rights Council (41st session) will be held from 24 June to 12 July 2019.

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A huge thank you to Alderin Ongwae, intern with the Global Initiative for Economic, Social and Cultural Rights, for his work on this update.