MODULE 3: INTRODUCTION TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS

The purpose of this module is to provide an introduction to and overview of the central inter�national treaty on economic, social and cultural rights, the International Covenant on Eco�nomic, Social and Cultural Rights (ICESCR).

Introduction

The International Covenant on Economic, Social and Cultural Rights (ICESCR) [1] was adopted by the UN General Assembly in 1966.� It came into force in 1978 and together with its sister Covenant, the International Covenant on Civil and Political Rights (ICCPR), forms part of the International Bill of Human Rights.� (See pages following this module for the full text of the ICESCR.)

The ICESCR is composed of thirty-one articles contained in six sections: the preamble and parts I to V.� Part I, which is identical to the parallel part of the ICCPR and comprises solely article 1, proclaims the right of all peoples to self-determination, including the right to freely pursue their economic, social and cultural development and to freely dispose of their natural wealth and resources.� Although the inclusion of a right of �peoples� may be problematic^[2](particu�larly where the definition of the �people� remains difficult), it could be said to pro�vide a nec�essary context within which the realization of rights within the Covenant is to take place.^[3]

The heart of the Covenant is found in part III, articles 6-15, which outlines the rights to be protected.� These include, broadly, the right to work (art. 6), the right to fair conditions of employment (art. 7), the right to join and form trade unions (art. 8), the right to social secu�rity (art. 9), the right to protection of the family (art. 10), the right to an adequate standard of living, including the right to food, clothing, and housing (art. 11), the right to health (art. 12), the right to education (art. 13) and the right to culture (art. 15).

The protection given to economic rights in the Covenant is broad but general.� Article 7, for example, provides for a right to equal remuneration for work of equal value (rather than just the more restrictive equal pay for equal work), and gives recognition to a wide range of other rights such as the right to safe and healthy working conditions and the right to reasonable limitation of working hours.� Similarly, article 8 provides not only for the right to join and form trade unions but also for the right of trade unions to function freely and the right to strike.� (See Module 10 for more discussion on these issues.)

None of the formulations adopted, however, deals with matters in the same detail as do Inter�national Labour Organization (ILO) instruments in the area.� In this respect one might con�sider that it is rather in relation to social and cultural rights, where existing standards are less well developed, that the Covenant has greatest utility.� The recognition given to the rights to food, housing, health and cultural life, for example, do not find comparable enactment else�where.

While the Covenant benefits from an impressive scope, it does suffer from the fact that its terms are phrased in an excessively general manner.� For example, whereas the European So�cial Charter has three articles dealing with the right to social security,^[4] the Covenant merely has the briefest of statements.� Similarly, the rights to food and housing, which are clearly complex and ill-defined concepts, are given little, if any, further substance in the text of the Covenant.� The amount of detail to be included in the provisions of the Covenant was the subject of much debate in the drafting of the Covenant.� Although it was noted that more general wording could leave the way open to divergent and conflicting interpretations, gener�ally phrased provisions were often preferred in order to avoid restricting the scope of the arti�cles and to prevent conflict with the standards established by the specialized agencies (par�ticularly the ILO).� The generality and breadth of the Covenant�s terms could be said to con�tribute to its longevity by providing scope for a dynamic inter�pretation of its provisions.� It does, however, place a heavy burden on the supervisory body whose central role inevitably becomes one of developing and defining the content of the norms.� Although the drafters clearly envisaged a con�tinuing process of standard-setting (particularly under the auspices of the ILO),^[5] the fact that this must take place after ratification leaves the way open to conflicts in interpretation that might ultimately undermine the integrity of the Covenant itself.

One particular failing of the Covenant, espe�cially when compared with the European Social Charter, is that it does not identify those groups that might be considered to need special pro�tection.� Specific mention is made only to the position of women and children (arts. 3 and 10).� Ideally, one might have hoped that mention would be made of the position of aliens, migrant workers, the elderly and those with physical or mental disabilities.� It would be wrong, however, to suppose that the Covenant fails to offer any protec�tion in that respect.� The rights to which the Covenant refers are the rights of �everyone�; the only limit ratio personae is to be found in article 2(3), which permits �developing countries� to determine the extent to which they would guarantee economic rights to nonnationals.� Equally, article 2(2) prohibits discrimination of any kind �as to race, colour, sex, language, religion, political or other opinion, national or social ori�gin, property, birth or other status� (emphasis added).� The term �other status,� as far as the UN Committee on Economic, Social and Cultural Rights (CESCR; see below) is concerned, includes advanced age and disability.� It is also arguable that it may be interpreted to prevent discrimination on other grounds, such as nationality, age, health status or sexual orientation.

Related Instruments and Standards

As with any human rights treaty, there is inevitably a certain amount of overlap between the Covenant and other human rights instruments.� A number of ESC rights are recognized in instruments such as the International Convention on the Rights of the Child (arts. 24-31), the Convention on the Elimination of All Forms of Racial Discrimination (art. 5), the Conven�tion on the Elimination of All Forms of Discrimination against Women (art. 1), and certain ILO instruments.^[6]� Similarly at a regional level, recognition is given to ESC rights in the African Charter on Human and Peoples’ Rights and, more extensively, in the European So�cial Charter.� Such instruments, however, tend to be limited in their application either as re�gards the range of rights to which recognition is given, the class of persons to whom they are addressed, or in their territorial application.� They are important, however, in so far as they essentially supplement the guarantees found in the Covenant in certain important areas.��

By and large, it is proper to suppose that there should be some cross-fertilization between these different instruments.� A decision taken by the Committee on the Elimination of Racial Discrimination (CERD) in relation to discrimination in the context of employment, for ex�ample, will be a relevant source for the CESCR in its work in that area.� Similarly, the CESCR’s work on the rights of persons with disabilities will be influential for other com�mittees when they encounter that issue.� The text of each instrument may vary, however, and the level of pro�tection offered by each may therefore not be quite the same.� The ICCPR, for example, allows for derogation from the right to join and form trade unions, while the ICESCR does not.� What this means, of course, is that for those states that are party to both instruments, derogation would be impermissible, whereas for states party only to the ICCPR, it would remain a possibility.

In addition to other treaties, relevant sources of interpretation of the Covenant include Gen�eral Assembly resolutions, court decisions and documents produced by expert bodies.� There are three particularly pertinent documents that have had a great influence on the inter�preta�tion of the Covenant.� The first two were produced at expert meetings in the Netherlands, and have become known as the Limburg Principles^[7] and the Maastricht Guidelines.^[8]� In the Lim�burg Principles, a group of experts sought to explain and build upon the basic obligations as�sumed by states in relation to the Covenant.� These Princi�ples have since been endorsed, both explicitly and implicitly, in the work of the CESCR and other bodies.� The Maastricht Guidelines are of the same nature, and focus more specifically upon the question of identi�fying violations of ESC rights.� The third document is the General Assembly Standard Rules on Disability, which were used to a great extent in the committee’s General Comment on the Rights of Persons with Disabilities.� The Standard Rules were not incorporated in their en�tirety, but formed the basis for the committee’s inter�pretation of relevant provisions of the Covenant.

The Supervision System

The system of supervision devised for the ICESCR differs from that for the ICCPR princi�pally in so far as it does not possess the equivalent of the Optional Protocol to the ICCPR for the purpose of receiving individual petitions.� It was considered during the drafting of the Covenant that the progressive nature by which the rights were to be implemented rendered it impossible for individual complaints to be entertained.� It would not be possible to speak of violations in a context where all that was being considered was the sufficiency of legislative and administrative programs.^[9] Accordingly, the ICESCR was left with a reporting system as a means of supervision, to be undertaken not by an expert committee like the Human Rights Committee, but by the Economic and Social Council (ECOSOC) as one of the political organs of the United Nations.

According to articles 16 and 17 of the Covenant, states are required to submit reports, at in�tervals to be defined by ECOSOC, on the “measures which they have adopted” and the “pro�gress made” in achieving observance of the rights in the Covenant.� The reports are to be sent to the UN Secretary-General, who is required to transmit them to ECOSOC “for consid�era�tion.”� ECOSOC may, in turn, transmit the state reports to the Commission on Human Rights “for study and general recommendations or . . . for information,” (art.19) and may invite the UN specialized agencies (which are to be sent copies of the relevant parts of the state reports) to report to it on the progress made in achieving observance of the rights. (art. 18)� Finally, ECOSOC may “from time to time” submit reports and recommendations “of a general na�ture” to the General Assembly (art. 21), and may bring to the attention of other UN organs and specialized agencies any matters that “may assist such bodies in deciding . . . on the ad�vis�ability of international measures likely to contribute to the effective progressive imple�menta�tion of the . . . Covenant.”(art. 22)

The system envisaged in part IV of the Covenant does not clearly identify which body has central responsibility for supervision (ECOSOC or the Commission on Human Rights), nor does it stipulate the precise content of the reports to be submitted by states parties or the na�ture of the scrutiny to be undertaken by the UN bodies mentioned.� What is clear under part IV is that no body has the ability to interpret the Covenant in a manner that binds states par�ties, and that states are merely under an obligation to submit reports at periodic intervals.� Any further participation in the supervisory process is entirely voluntary.� Reading between the lines, it would appear that what was envisaged was a system in which ECOSOC would act as a conduit for the transmission of requests for international assistance, both economic and technical.� It was not expected that ECOSOC would “assess” the state reports or evalu�ate state performance with respect to the implementation of obligations under the Covenant.� This, however, is not how the supervision system has ultimately developed.

It was immediately apparent, following the entry into force of the Covenant, that ECOSOC itself would not be able to undertake the tasks in�volved in the implementa�tion of the Cove�nant.� After some debate, it was de�cided that that responsibil�ity should be devolved upon a “Sessional Working Group” specially created for that purpose.^[10]� Unfor�tunately, the Ses�sional Working Group (later known as the Sessional Working Group of Governmental Experts) never came to terms with the task at hand.� Its work was undermined by political disagreement, particularly in relation to the participation of the specialized agencies, and it undertook only a very superficial examination of the state reports.� The experience was suffi�ciently unsatisfactory for ECOSOC to decide in 1985 to create a new body, composed of independent (rather than governmental) experts, which would take up the role of assisting it in the “consideration” of state reports.^[11]� The Committee on Economic, Social and Cultural Rights (CESCR) so cre�ated has since operated as the principle supervisory body to the Cove�nant.

The CESCR is composed of eighteen experts, sitting in an independent capacity, chosen with due regard to equitable geographical distribution.^[12]� It officially meets in Geneva each year for a single three-week session, although additional sessions are frequently arranged.� As of May 1998, the committee has held eighteen sessions.� Unlike other human rights committees created by virtue of the respective treaties, the committee is technically only an organ of the United Nations.� It was created by ECOSOC, and its mandate is merely to assist ECOSOC in the consideration of state reports.� Although it operates in a manner broadly similar to that of other human rights treaty bodies, it has not been hampered by the con�straints of a detailed constitutional instrument and has therefore been able to develop its working methods quickly and flexibly.� As a result it now boasts one of the most advanced reporting procedures in the UN human rights system.�

Under the reporting procedure as it now operates, states are required to submit a report on the domestic implementation of the articles in the Covenant once every five years.^[13]� To assist states in that regard, the CESCR has adopted a set of reporting guidelines that outline the is�sues to be addressed by states parties.^[14]� The reports, once submitted, are considered ini�tially by a pre-sessional working group (consisting of five members of the committee), which drafts a list of specific questions regarding further information to be requested.� When the committee comes to consider the report in plenary, a representative of the state concerned is invited to attend the committee’s meeting and present the report.� In doing so, the represen�tative is requested initially to address the list of questions drafted by the pre-sessional work�ing group.� Thereafter individual members of the committee ask further questions to which the state representative will endeavor to respond.� At the conclusion of this process, which is somewhat inaccurately referred to as a “constructive dialogue,” the committee will draft a set of Concluding Observations in which it will lay out the principal subjects of con�cern to the committee and any suggestions and recommendations that it might have.^[15] A number of as�pects of this process are worthy of further comment.

One of the enduring criticisms of reporting systems in general is their reliance on the coop�eration of states, not only in terms of their submission of reports but also in their participa�tion in the constructive dialogue.� The unwillingness of certain states to cooperate in that regard has posed problems with respect to the ICESCR. �For example, as of May 1996, there were 97 overdue reports from 88 states parties and 17 states had failed to submit a single report in ten years.� The committee has taken action to address such problems by, inter alia, scheduling for consideration the situation in states in absence of a report.^[16]� This has met with some suc�cess in so far as states have often responded by submitting a report at the next session,^[17] but it clearly runs counter to the ethos of the constructive dialogue and arguably exceeds the com�petence of the committee to consider “state reports.”

Aware of the limits of relying solely upon information provided by the states parties them�selves, the CESCR took what was at the time the unprecedented step of officially inviting “all concerned bodies and individuals to submit relevant and appropriate documentation to it.”^[18]� As regards the UN specialized agencies, this is unremarkable in so far as their partici�pa�tion in the supervision process was already foreseen by the terms of the Covenant. �In real�ity, however, with the exception of the ILO, participation by the specialized agencies has been uniformly poor.� The main significance of the committee’s decision thus was in its offi�cial legitimization of participation by nongovernmental organizations (NGOs).� Although NGOs may not participate in the committee’s dialogue with states parties, they may submit at any time relevant written information to the committee concerning the enjoyment of rights within the states whose reports are being considered, and may give oral presentations at the beginning of each of the committee’s sessions.^[19]� It has largely been as a result of the receipt of such information that the committee has been able to develop its work with respect to the right to housing.� The lack of large-scale participation by NGOs, however, has tended to mean that other areas of its work have not developed as rapidly.

One notable instance in which NGO information has been significant was the case of the Philippines.� At its tenth session, certain NGOs drew the attention of the committee to several matters (broadly relating to the forcible eviction of large numbers of families from their homes) that were, in the words of the committee, sufficient “to give rise to concern that vio�lations are occurring and that future measures might amount to further violations of the obli�gations contained in the Covenant.”^[20]� On the basis of this information the committee re�quested the government to respond to the issues raised, which it did in the following year.� After examining the report, the committee took the view that the planned forcible eviction of 200,000 families would, if undertaken without adequate resettlement sites being made avail�able, be incompatible with the guarantees under the Covenant.^[21] �It accordingly requested that the government ensure “that forced evictions are not carried out except in truly excep�tional circumstances, following consideration of all possible alternatives and in full respect of the rights of all persons affected,” and that a moratorium should be extended on all summary and illegal forced evictions.^[22]�

There are several significant aspects of this case.� First, the whole process was initiated on the basis of information received from NGOs, rather than through the committee’s examina�tion of the state report.� It only emerged later that the Philippines was in any case due to submit a report on articles 10-12.� The committee appears to have asserted its competence to request ad hoc reports with respect to situa�tions which give cause for serious concern.� Sec�ondly, as it has done on several other occasions, the committee suggested that the state was potentially in breach of its obligations under the Covenant.� While such a finding is not nec�essarily out of place in the context of a reporting procedure, it suggests that the committee is increasingly adopting what might be termed a “quasi-judicial function” rather than merely the facilitative or advisory function that had initially been envisaged.^[23]� Thirdly, the case is interesting in so far as it suggests that the committee will concern itself not merely with re�medial action but will attempt to forestall future violations of the Covenant by intervening before the event.

It is often the case that during the process of the constructive dialogue issues arise which the state representative is unable to address immediately to the satisfaction of the CESCR.� In those cases, states are generally requested to provide additional information in time for the committee’s next session.� In urgent cases, the committee may request the information to be provided at an earlier date, within a specified number of months.^[24]� On receipt of the addi�tional information the committee will generally merely declare its satisfaction at receiving the requisite information, but on occasion it will adopt a number of concluding observations outlining those matters which remain of concern to the committee.^[25]

Recently, however, the committee has gone considerably further in its approach to situations of grave and immediate con�cern.� In the cases of Panama and the Do�minican Republic, the committee considered that the information provided by the state party did not entirely dispel its concern as to allegations of housing rights vio�lations.� Accord�ingly, it requested each state to accept a mission, consisting of two members of the committee, which would visit the state concerned predominantly for the purpose of information-gathering.� Although both states initially resisted, they eventually accepted the proposal and a mission was dispatched to Panama in early 1995 and to the Dominican Republic in 1997.� Although the mission re�ports themselves were confidential, the committee has adopted a set of observations as to the results of each visit.^[26]� This procedure, while not unknown in the context of UN practice, is a significant development in the work of the committee and may ultimately offer opportunities for it to develop a far more constructive role in the reporting process.

One of the major theoretical drawbacks of the reporting system as a system of supervision is its inability to respond to specific individual claims that might arise in relation to the enjoy�ment of the rights in particular states.� To some extent those claims might be championed by interested NGOs participating in the work of the committee, but thus far, such action has tended to be limited to the field of housing rights.� The lack of a formal complaints procedure has two main drawbacks: not only does it deprive individuals of the opportunity to seek an international outlet for their complaints, but it also limits the committee’s ability to develop a deeper understanding of the content of the rights in the Covenant.�

As regards the latter point, the CESCR has attempted to remedy the lack of case law by pro�ducing “General Comments” in which it attempts to outline its understanding of both sub�stantive and procedural aspects of the Covenant.� As of June 2000, the committee had pro�duced thirteen such general comments, seven of which relate to substantive rights, namely the right to housing (and forced evictions), food, education and the rights of persons with disabilities, and the rights of the elderly.^[27]� These all go some way towards elucidating the committee’s understanding of the rights and obligations within the Covenant, and, indeed, its perception of the difficul�ties facing states in implementation.� The latter point was developed, in particular, in a recent General Comment where the committee expressed its deep concern about the deleterious effect that UN-imposed sanctions appeared to have upon the welfare of vulnerable groups in the target states.� It reiterated the importance of the standards in the ICESCR and asked that those concerned with implementation take necessary cognizance of the ESC rights of the population affected.

As mentioned above, one of the major shortcomings of the ICESCR as a human rights in�strument is the fact that it does not possess the equivalent of a system for the consideration of individual or group petitions.� Although the CESCR has recently drawn up a draft Optional Protocol to allow for the consideration of individual communications, it is unlikely that this will be adopted by states in the near future.� The present situation, however, is not without its opportunities.� First of all, individuals and groups do have the opportunity to submit infor�mation to the CESCR alleging violations of rights within the Covenant, and this, on occasion, may induce the committee to ask states for a particular response.� To some extent, therefore, the system operates in a “quasi-judicial” manner in providing at least a potential outlet for complainants.

Secondly, it is apparent that there is a substantive overlap between the ICESCR on the one hand and the ICCPR on the other, and that if a state is party to the Optional Protocol to the latter, petitions in relation to ESC rights may be submitted to the Human Rights Committee.� The clearest examples arising in practice have related to article 26 of the ICCPR concerning equality before the law.� In several cases, the Human Rights Committee has come to consider the legitimacy of discriminatory social security legislation in the Netherlands under that pro�vision, notwithstanding the fact that the right to “social security” is found in the ICESCR, not the ICCPR.^[28]� Other potentially fruitful overlaps include the right to join and form trade un�ions and the right of members of ethnic, cultural and linguistic minorities to take part in the cultural life of their community (art. 27).� A similar situation prevails in relation to the Con�vention against Racial Discrimination (CERD) which has led, in the past, to certain ESC rights being considered under CERD’s petition system.� Cases of relevance include the Yil�maz-Dogan case^[29] and L.K. v. The Netherlands.^[30]

NOTES

5. ICESCR, article 8(3).� This is indicated, in particular, by the inclusion of article 8(3) that refers to ILO Convention No. 87.

[6]. See, for example, ILO Convention concerning Freedom of Association and Protection of the Right to Organize (No. 87), 1948, 68 UNTS 17.

7. The Limburg Principles on the implementation of the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, Commission on Human Rights, Forty-third Sess., Agenda Item 8, UN Doc. E/CN.4/1987/17, Annex (1987).

8. “The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights,” Human Rights Quarterly, Vol. 20, No. 3, The Johns Hopkins University Press, Baltimore, August 1998, 691-701.

9. See UN Doc. A/2929, in UN GAOR, C.3, Tenth Sess. (1955), Annexes (Agenda Item 28, Part II), para. 41.

10. ESC Dec. 1978/10, UN Doc. S/DEC/1978/10 (3 May 1978).

11. ESC Res. 1985/17, UN Doc. S/RES/1985/17 (28 May 1985).

12. Ibid.,� at para. b.

13. ESC Res. 1988/4, UN Doc. S/RES/1988/4 (24 May 1988).

14. CESCR, Report on the Fifth Session. ESCOR, 1991, Supp. No. 3 (UN Doc. E/1991/23), Annex IV.

15. See CESCR, Report on the Eighth and Ninth Ses�sions. ESCOR, 1994, Supp. No. 3 (UN Doc. E/1994/23), paras. 32-34.

16. CESCR, Report on the Seventh Session. ESCOR, 1993, Supp. No. 2 (UN Doc. E/1993/22), para. 245.

17. For example, Belgium, Surinam and Kenya.

18. CESCR, Report on the Sixth Session. ESCOR, 1992, Supp. No. 3 (UN Doc. E/1992/23), para. 386.

19. Rules of Procedure Rule 69.3; see also UN Doc. E/1994/23 at para. 354 (1994).

20. CESCR, Report on the Eighth and Ninth Sessions. ESCOR, 1994, Supp. No. 3 (UN Doc. E/1994/23), para. 374.

21. UN Doc. E/C.12/1995/7, para. 16.

22. Ibid., para. 3.1.

23. See generally Matthew C. R. Craven, The International Covenant on Economic, Social, and Cultural Rights: A Perspective on Its Development (Oxford: Clarendon Press, 1995).

24. CESCR, Report on the Seventh Session. ESCOR, 1993, Supp. No. 2 (UN Doc. E/1993/22), para. 251.

25. For example, observations on the additional information of Zaire. CESCR, Report on the Sixth Session.� ESCOR, 1992, Supp. No. 3 (UN Doc. E/1992/23), para. 328(c).

26. See Report on the technical assistance mission to Panama, UN Doc. E/C.12/1995/8 (1995); Re�port on the technical assistance mission to the Dominican Republic, UN Doc. E/C.12/1997/9 (1997).

27.� CESCR, General Comment 1, Reporting by States parties (1989), UN Doc. E/1989/22, annex III; General Comment 2, International technical assistance measures (Art. 22 of the Covenant) (1990), UN Doc. E/1990/23, Annex III; Gen�eral Comment 3, The nature of States parties’ obli�gations (Article 2, para. 1 of the Covenant) (1990), UN Doc. E/1991/23, Annex III; General Comment 4, The right to adequate housing (Article 11(1) of the Covenant) (1991), UN Doc. E/1992/23, Annex III; General Comment 5, Persons with disabilities (1994), UN Doc. E/C.12/1994/13; General Comment 6, The economic, social and cultural rights of older persons (1995), UN Doc. E/C.12/1995/16, Rev. 1; General Comment 8, The Relationship between eco�nomic sanctions and respect for economic, social and cultural rights (1997), UN Doc. E/C.12/1997/8; see also Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.1 (1994) for General Com�ments 1-4.

28. See, for example, S.W.M. Broeks v. The Netherlands, Communication No. 172/1984 (9 April 1987), UN Doc. Supp. No. 40.

29. Yilmaz-Dogan v. The Netherlands, Committee on the Elimination of Racial Discrimination, Communication No. 1/1984, UN Doc. A/43/18 Annex IV (1988).

30. L.K. v. The Netherlands, Committee on the Elimination of Racial Discrimination, Communica�tion No. 4/1991, UN Doc. A/48/18 at 131 (1993).

MODULE 3

INTRODUCTION TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
USING MODULE 3 IN A TRAINING PROGRAM

The Purpose of Module 3

Introduction

Related Instruments and Standards

The Supervision System

NOTES

MODULE 3

INTRODUCTION TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS USING MODULE 3 IN A TRAINING PROGRAM

The Purpose of Module 3

Introduction

Related Instruments and Standards

The Supervision System

NOTES

INTRODUCTION TO THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
USING MODULE 3 IN A TRAINING PROGRAM