SECTION 8: UNITED NATIONS MECHANISMS AND ESC RIGHTS
Other Contents of Section VIII: General Comment 1

MODULE 24

UNITED NATIONS MECHANISMS AND ESC RIGHTS
USING MODULE 24 IN A TRAINING PROGRAM

The Purpose of Module 24

The purpose of this module is to give a broad idea of some of the international mechanisms available for the protection and enforcement of ESC rights.

The module

  • introduces treaty-based human rights bodies and mechanisms, and UN Charter-based bodies and mechanisms;
  • summarizes the work and procedures of key ESC-rights-related treaty bodies, including
    • The Committee on Economic, Social and Cultural Rights,
    • The Committee for the Elimination of All Forms of Discrimination against Women,
    • The Committee on the Rights of the Child, and
    • The Human Rights Committee;
  • summarizes the ESC-rights-related work and procedures of UN Charter-based bodies and mechanisms, including:
    • The Human Rights Committee,
    • The Commission on the Status of Women,
    • The UN Commission on Human Rights, and
    • The UN Sub-Commission on the Promotion and Protection of Human Rights;
  • summarizes the work and procedures of the International Labour Organization.

Introduction

Effective national institutions and procedures are essential to the full protection of ESC rights.  Advocacy before international institutions, bodies and mechanisms can only supple­ment protection provided by these domestic bodies and processes; it is not a substitute for work done at the national level.    

At the same time, there are several international institutions, mechanisms and procedures that have a role to play in the realization of ESC rights.  Most are part of the UN system.  This module briefly considers some of the more important:

  • The Committee on Economic, Social and Cultural Rights
  • The Committee for the Elimination of All Forms of Discrimination against Women
  • The Committee on the Rights of the Child
  • The Human Rights Committee
  • The Commission on the Status of Women
  • The UN Commission on Human Rights
  • The UN Sub-Commission on the Promotion and Protection of Human Rights
  • The International Labour Organisation

Treaty mechanisms

The implementation of human rights treaties cannot be left to states alone.  There is a need, even in the case of those states that are committed to human rights, for some form of inde­pendent scrutiny.  Human rights treaties, therefore, universally provide for some mechanism of "enforcement” or "supervision,” which is usually overseen by an in­dependent committee (in the case of UN treaties), commission, or court.  Each of the UN treaties discussed in this module has its own "treaty body” or committee, which is required to undertake several tasks in relation to implementation of the treaty concerned. 

The mechanisms for enforcement or supervision of human rights treaties take one of two forms: a reporting system or a petition system.  In some cases both mecha­nisms are com­bined.  The reporting system is the standard mechanism for the supervision of UN treaties.  Under the reporting system, states parties are required to submit, on a periodic basis, a report to the relevant UN committee outlining the progress made and the problems encountered in the implementation of the treaty.  The committees are given the task of re­viewing these re­ports during their annual meetings.  The review usually takes the form of what is known as a "constructive dialogue,” in which representatives of the state concerned are invited to attend a committee’s meeting to present the state report and respond to inquir­ies made by committee members.  The committees will often seek to focus upon issues brought to their attention by nocgovernmental organizations (NGOs) and elicit assurances from the states concerned that problems will be addressed and remedied.  At the end of the "constructive dialogue” the Committee concerned will adopt a set of "concluding observa­tions” outlining not only the progress made, but also the matters of concern to which action should be directed.

The alternative model of supervision is the petition system-otherwise known as a "com­plaints system” or "system of communications” which is the predominant form of supervi­sion in regional systems.  Petition systems are also operated by several UN committees (the Human Rights Committee, the Committee Against Torture and the Committee on the Elimi­nation of Racial Discrimination).  The UN General Assembly has adopted a further petition system for CEDAW, but it has not yet come into force.  Moves have been made in relation to ICESCR to adopt such a system.

Petition systems vary both as regards the status of the proceedings and the type of complaints that may be received.  Apart from the systems operated under the European Convention of Human Rights (Module 29) and the Inter-American Convention of Human Rights (Module 30), treaty-based petition systems are optional for states parties and are not legally binding.  Treaties usually provide for the receipt of petitions from states and/or individuals, but the in­terstate complaints procedure is very rarely utilized.

By and large, petition systems operate in a manner analogous to domestic legal proceedings in which an independent body is asked to deliberate upon a dispute between two parties and offer a decision or view as to the legal solution.  Un­like domestic proceedings, however, pe­tition systems do not seek to function as a means of appeal but simply as a means of ensuring that the states concerned comply with their treaty obligations. The provision of "remedies,” in the sense understood in domestic law, is therefore a subsidiary concern as to most human rights treaties.  In all cases, therefore, the emphasis is upon the provision of do­mestic reme­dies within the national legal order, and international scrutiny will only follow when those remedies have been exhausted.

Charter-based procedures

While the mainstay of human rights supervi­sion and enforcement is treaty-based (as being related to a specific human rights treaty), this is supplemented in the United Nations by sev­eral Charter-based proce­dures.  Such procedures have been devel­oped pursuant to the gen­eral human rights provisions in the UN Charter (see Module 2).  Since its creation in 1946, the UN Commission on Human Rights has received complaints submitted by individuals and or­ganizations from around the world con­cerning allegations of ill-treatment by gov­ernments or state actors.  For many years it refused to act upon these complaints, but it eventually devel­oped several mechanisms that enabled it to take certain measures in response.  The two main procedures-known as the 1235 and 1503 procedures (named after Economic and Social Council (ECOSOC) resolutions)-allow for consideration of petitions and other urgent in­formation by the UN Commission on Hu­man Rights and its Sub-Commission, and provide for a range of follow-up measures, such as the conduct of on-site visits to states and the drafting of reports by Country or Thematic Spe­cial Rapporteurs, Representatives, Experts and Working Groups.  They are, however, pri­marily "political” procedures in so far as their operation is ultimately dependent upon deci­sions being taken within the commission itself (which is composed of UN member states).

Almost all these bodies allow NGOs to intervene in their deliberations.  In fact, without the input of NGOs many of these mechanisms would be unable to function effectively.  National, regional and international NGOs are fertile sources of information; they provide a picture of the human rights situation in a country that is an alternative to that provided by govern­ments.  The comments, observations and recommendations of these bodies in turn support NGOs in their lobbying and advocacy activities.

The following sections are short discussions of the procedures available to ESC rights activ­ists through

  • treaty-based mechanisms and
  • UN Charter-based mechanisms. 

The final section is on the International Labour Organization, which pre-existed the UN, but is currently a UN specialized agency.

The Committee on Economic, Social and Cultural Rights

The most important of the international mechanisms for ESC rights activists is the Commit­tee on Economic, Social and Cultural Rights (CESCR).  (See Module 2 for further information about the CESCR.)  The committee was established in May 1986 and monitors the implementation of the rights contained in the ICESCR.  It meets twice a year in Geneva.  It consists of eighteen independent members and is a subsidiary body of the ECOSOC.  The committee monitors the implementation of ESC rights in three broad ways:

  • by examining the reports submitted by governments, and issuing country conclusions in regard to breaches of their obligations under the Covenant;
  • by catalyzing state action, and action by other international agencies, in relation to the rights contained in the Covenant; and
  • by clarifying, expanding and elaborating on the rights contained in the Covenant through its general comments and other statements.

In all these areas it is possible for NGOs to intervene and the CESCR has been especially re­ceptive to NGO information and ideas. 

The CESCR has adopted detailed guidelines on the form and content of the government re­ports to be submitted under the Covenant. [1] However, in their reports very few states con­form to the guidelines laid down by the committee.  The procedures followed by the com­mittee in considering reports are similar to those followed by other treaty bodies.

  • The government submits its report.
  • The committee sometimes appoints one of its members to analyze the government re­port.
  • Some months before its formal session, a pre-sessional working group will identify the issues to be raised with the government representative.  It is possible for international, re­gional and national NGOs to present information to the working group at this stage.  The working group sessions are usually held soon after the conclusion of the formal sessions of the committee.
  • It is also open for national NGOs to prepare "alternative” or "shadow” reports for sub­mission to the committee.
  • The committee will then meet with government representatives at one of its formal ses­sions (usually held in May and November of a calendar year) for a detailed consideration of the government’s report.
  • Prior to this it will be possible for NGOs to make oral submissions before the committee, to supplement their written reports.  The first afternoon of each of its formal sessions is set apart to hear NGO representations on the reports that the committee is about to con­sider.
  • The committee also invites members of the specialized agencies of the UN to make their observations.
  • The committee then will make its concluding observations on the government report and address recommendations to the government with regard to its obligations under the Covenant.  These observations are submitted to the government concerned and made public at the same time.
  • The discussion on each government report is summarized in the committee’s annual re­port submitted to ECOSOC.

General Comments

In addition to scrutinizing government reports, the committee may adopt a General Com­ment or release an analytical paper or statement, which will try to develop the understanding of the rights in the Covenant or address an issue of relevance.  The objective of the General Com­ments and statements is to help governments implement the rights laid down in the Covenant as well as to highlight deficiencies in the reports submitted and improve the re­porting proce­dure.  As of June 2000 the Committee had adopted 13 General Comments-the last two be­ing on the right to education and the right to adequate food.

The committee also hopes that its comments and statements will catalyze state action in the area of ESC rights, and similar action by the UN specialized agencies and other international organizations, leading to the progressive realization of these rights.

Ad hoc reports

The committee has also acted where the situation has called for an immediate response.  It has sought ad hoc reports from the Dominican Republic and the Philippines.  The committee undertook a fact-finding mission to Panama in 1995 to obtain firsthand information with re­gard to the right to housing.  This mission was undertaken with the permission of the gov­ernment of Panama.

Preventing violations

In at least one instance the committee has acted to prevent a violation from taking place.  As a result of information submitted by Filipino NGOs, the committee took the view that the proposed forced eviction of a large group of people would result in an infringement of that government’s obligations under the Covenant.  It accordingly recommended that the evic­tions go ahead only if a suitable resettlement scheme had been put in place.

Visits by CESCR members-The Hong Kong experience

When Hong Kong reported in 1997 under the ICESCR, the NGOs arranged for the commit­tee member in charge of the Hong Kong report to visit Hong Kong and dialogue with local NGOs prior to the committee’s considering the government’s report.  This was to en­able the committee to have a firsthand account of the situation in relation to ESC rights in that country.

Day of general discussion

The committee also sets apart time for a discussion on a specific right or article of the Cove­nant, or of a specific issue of concern to the work of the committee.  Experts are usually in­vited to contribute to these discussions. For example, at its eighteenth session in May 1998, the committee first held a Day of General Discussion on the topic of "Globalization and its impact on the enjoyment of economic and social rights.”  This was attended by representa­tives of the UN organs, specialized agencies and several NGOs.  Following the discussion the committee adopted a statement entitled "Globalization and Economic, Social and Cultural Rights.”

Optional Protocol

The committee has been considering a proposal for the adoption of an Optional Protocol to the Covenant.  The Optional Protocol would allow individuals and groups to petition the committee directly where there has been a violation of the Covenant.

Socioeconomic Rights Advocacy-Using International Law
Experience of the Centre for Equality Rights in Accommodation (CERA), Canada

"Those of us who work with people living in poverty often need to clarify that social and economic rights are not the sole preserve of a UN Committee meeting in the marble halls of the Palais des Nations in Geneva in one of the most affluent and expensive cities in the world. For the majority of those who struggle for social and economic rights, the proceedings of UN treaty monitoring bodies may seem entirely irrelevant, or to relegate social and economic rights to international 'experts' rather than developing them as a field of domestic rights practice.

"It would be a mistake, though, for social and economic rights advocates to ignore the potential of using UN treaty monitoring bodies, and particularly the UNCESCR, to strengthen domestic social rights practice. Like all other human rights practitioners, and perhaps more than others, we need to work on a number of fronts simultaneously. Political advocacy will often be strengthened by judicial actions, and judicial actions assisted by public education and advocacy. Similarly, domestic social rights advocacy may be advanced by work at the international level, which in turn needs to be informed by domestic advocacy . . .

"In 1993, with Canada's second periodic report coming up for review, Canadian NGOs . . . petitioned the Committee for a new procedure through which it would hear oral submissions from domestic NGOs as part of the periodic review process. The Committee decided to break new ground at the U.N., setting aside time at the beginning of each session for NGO presentations relating to the periodic reviews of State parties. The new procedure had a dramatic effect, allowing NGOs to play a central role and fundamentally transforming the nature of the review process . . .

"NGO submissions at treaty monitoring bodies are often referred to as 'shadow reports,' but the CESCR really brought the NGO role out of the shadows in 1993. Rather than pretending that it has the resources or expertise to assess complex social and economic issues in a country, the Committee has recognised that it functions best in a more adjudicative role, facilitating and then drawing conclusions from a rights-based dialogue between domestic NGOs and governments . . .

"The prominent role of NGOs in the review of Canada's compliance with the Covenant in 1993 made the process highly visible and the subject of extensive public debate. The Committee's concerns and recommendations made headlines across Canada, were the subject of raucous debate in parliament, and were enthusiastically disseminated by anti-poverty and human rights groups across Canada. They have since been cited in the pleadings in a number of cases under the Canadian Charter of Rights and Freedoms and human rights legislation . . .

"In 1993, the oral submissions by NGOs focused on two major themes which have continued to dominate social and economic rights advocacy in Canada: (1) increasing poverty, homelessness and hunger in the midst of affluence; and (2) the failure by both courts and governments in Canada to provide effective domestic remedies for violations of social and economic rights. We provided concise information on the extent and depth of poverty among vulnerable groups in Canada-usually drawn from government data-as well as demonstrating comparative measures of Canada's wealth and 'available resources.' We accompanied our presentation with slides showing what homelessness and poverty looked like in Canada. In addition, we provided summaries of cases in which social and economic rights claims had been brought before Canadian courts and human rights tribunals.

"The Committee's concluding observations addressed most of the issues we brought to the Committee and which have been directly relevant to our domestic struggles. For the first time, the Committee issued a stern rebuke to an affluent country for violations of social and economic rights. It made it clear that the doctrine of 'progressive realisation' is as much a sword as a shield. The doctrine can be used to hold countries responsible for failing to apply 'the maximum of available resources' to fulfilling social and economic rights . . .

"Equally important was the Committee's unequivocal statement that there is an obligation to provide effective remedies for all rights in the Covenant, including, in particular, the right to an adequate standard of living in article 11 of the Covenant.

". . . The Committee pointed out that, even without explicit protection of social and economic rights in the Canadian Charter, many social and economic rights could be protected through expansive interpretations of rights such as 'equality' and 'security of the person'. . .

"While the U.N. Committee's observations were widely publicised in Canada, the response by the government was extremely disappointing. Rather than implementing any of the recommendations or addressing the concerns of the Committee, Canada has moved decisively backward with respect to the implementation of the Covenant rights . . .

"The most dramatic of recent developments was the federal government's decision in 1995 to revoke the provisions of the Canada Assistance Plan (CAP). For a generation of Canadians this had been the pillar of social rights protections . . .

"When the government of Canada announced its intention to revoke the provisions of CAP, NGOs and international legal experts made submissions to the parliamentary committee reviewing the proposed legislation. They argued that such a step would be in breach of Canada's obligations under the Covenant not to take 'deliberately retrogressive measures' with respect to the protection of Covenant rights. When the government appeared to pay little heed, we petitioned the UN Committee directly which granted permission to make oral submissions on the issue. In May 1995 a delegation of Canadian NGOs appeared before the Committee, outside of the regular periodic review process, and presented an urgent request that the Committee address this issue. The Committee responded by sending a letter to Canada relating the NGO concerns and asking for a report on the legislation later that year in the context of Canada's third periodic report. Nothing was submitted until two and a half years later when Canada finally submitted its overdue report and was scheduled for review in November 1998 . . . During the intervening time, provincial social assistance schemes had been seriously eroded . . .

"Six months prior to the scheduled review by the Committee of a government's periodic report, a pre-sessional Working Group meets to prepare a list of issues to send to the State party for a response. NGOs have the opportunity to make oral and written submissions to the Working Group. This is an important opportunity to ensure that the list of issues includes the most critical concerns of NGOs, as the list will be used to frame the oral review at the subsequent session. Two of us were sent to Geneva in May of 1998, representing a broad spectrum of Canadian NGOs to brief the pre-sessional Working Group. They in turn sent to Canada an extensive list of questions, addressing the revoking of CAP and a number of other concerns.

"The opening day of the Committee's meeting of November-December 1998, at which both Canada and Israel were to be reviewed, was literally crammed with NGOs-a dozen or so from Canada, at least as many Palestinian NGOs, and a few from other countries being reviewed. It seemed appropriate that it was the Chairperson, Philip Alston, chairing his last session of the Committee, who had to deal with the confusion. He had always been an advocate for recognising the role of NGOs and played a major role in the transformation of the Committee into a more activist body during the past decade.

"The oral presentations and the submission of written briefs at the outset of the Committee's session is the most visible role for NGOs in the process. However, as with all other treaty monitoring bodies, submissions to individual Committee members on issues of particular interest or concern to them is all important. As members are generally overwhelmed with information, providing concise summaries of issues is the key. Canadian NGOs prepared a collective summary of our most critical issues, which was invaluable in assisting the Committee to focus its review. As NGOs have no ability to reply to government submissions, it is important to anticipate how one's government will respond to questions, and to provide relevant information to Committee members demonstrating why the anticipated response is inadequate. We anticipated correctly, on the basis of the government's written responses, that the government delegation would deny the importance of CAP entitlements, describing CAP as merely an 'administrative arrangement' between the federal government and the provinces which was in need of 'updating'. We therefore highlighted in our materials Canada's submissions to the Committee in previous periodic reviews and other official statements in which CAP was described as fundamental to the protection of social and economic rights and national standards in social assistance programmes. As a result, Committee members rigorously challenged the Canadian delegation to reconcile past submissions with their present denials. One member, on putting the previous statements to a Canadian delegate, asked: 'Were you lying then or are you lying now?'

"NGOs had done considerable advance work with the Canadian media. Reporters from the national newspaper chains and from national radio attended the two-day exchange between the Committee and the delegates for the Canadian Government. NGOs from all sectors issued ongoing press releases and we established websites containing the government's report, the list of issues and the NGO submissions. The review process received extensive media coverage and commentary in Canada-even a spoof of the Governments' denials by a national television comedy show!
"Substantively, the 1998 concluding observations on Canada reiterated and strengthened concerns and recommendations expressed at the previous review and contained a strong denunciation of the revoking of CAP . . .

"The Committee recommended the reinstatement of 'a legally enforceable right to adequate assistance for all persons in need' and all other CAP standards.

"The Committee also issued strong concerns and recommendations with respect to many other issues in Canada, including: cuts to provincial social assistance rates, the failure to address rising homelessness, increased reliance on foodbanks, cuts to unemployment insurance, failure to fairly address Aboriginal land claims and poverty among Aboriginal People, workfare programmes, the prevention of unionization among workers in these programmes, and the adverse consequences for women of social programme cuts.

"Provincial governments were again criticised for arguing in court that Canada's Charter of Rights and Freedoms should be interpreted so as to deny legal remedies to those whose social and economic rights were violated. The Committee reiterated that 'economic and social rights should not be downgraded to principles and objectives'. It urged that the Covenant rights be made enforceable within the provinces and territories 'through legislation or policy measures and the establishment of independent and appropriate monitoring and adjudication mechanisms' . . .

"In March of 1999, Canadian NGOs focusing on poverty and homelessness decided to participate in the five-year review of Canada's compliance with the International Covenant on Civil and Political Rights by the U.N. Human Rights Committee. Significantly, this Committee raised similar concerns to those expressed by the Committee on Economic, Social and Cultural Rights . . . In particular, the Human Rights Committee expressed concern about the extent of homelessness in Canada, recommending that the government 'take positive measures required by article 6 (the right to life) to address this serious problem'. . .

"Through advocacy at the international level we have begun to fashion a consensus among U.N. treaty monitoring bodies about violations of human rights occurring in Canada. In so doing, we have also encouraged these bodies to deal with important social and economic rights issues which might otherwise have been ignored. While we have not, at this point, succeeded in reversing any of the erosion of social rights in Canada, we have at least found one forum which allows us to articulate the most important rights claims and have them fairly considered in the light of international human rights law . . . 2

View chart: United Nations Human Rights Bodies Relevant to Module 24

continue on to next page of Module 24

USING MODULE 24 IN A TRAINING PROGRAM

NOTES

1.   UN Doc. E/1991/23, Annex IV.

2.  Bruce Porter, "Socio-economic Rights Advocacy-Using International Law: Notes from Canada,” Economic & Social Rights Review (July 1999) 2:5  (online at www.web.net/cera).

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