CHAPTER 11

ESCR Promotion by Other UN and Regional Human Rights Bodies, and Related Roles for NGOS

11.1 Introduction to Other UN Mechanisms

Chapter 10 focused on the work of the Committee on Economic, Social and Cultural Rights. Chapter 11 provides brief notes on some of the other ways that the UN deals with ESC rights. Like the CESCR, most other UN human rights bodies rely on periodic reporting, persuasion and publicity to encourage countries to meet their human rights obligations.

There are many options available for drawing the UN’s attention to economic, social and cultural rights issues in a country, even if that country has not ratified the Covenant. The resources that an NGO devotes to any UN activity must be weighed against the likely benefits. As with approaches made by NGOs to the CESCR, attempts to influence a State’s policy and practices by contacting other UN bodies must be accompanied by activity in the home country, and possibly by efforts co-ordinated with international NGOs and sympathetic foreign governments.

At the UN, one thing that makes governments and UN personnel listen to national and international NGOs is the fact that they frequently provide the most accurate and up-to-date information about human rights in a country. Within the UN, States that are rivals might each quote from reports written by NGOs to show that the other State is not fulfilling the requirements of a human rights treaty. It is very important for NGOs to maintain a good image as sources of reliable information. NGOs should try as hard as possible to be sure that information they have about violations is based on real knowledge and is not easy for governments to deny or refute. This care helps to strengthen the credibility of what an NGO says on any topic. If the NGO version of current facts is accepted by a UN treaty-monitoring Committee, this gives the Committee a helpful basis on which to measure progress that the State later achieves in realising economic, social and cultural rights.

UN agencies do not always co-ordinate their efforts to promote human rights in a country. It is now possible, however, to learn what many UN agencies and committees have said about the human rights performance of a country in previous years, by looking at one source. That resource, For the Record, is published annually in print and on the World Wide Web by Human Rights Internet (HRI), an NGO that focuses on NGO human rights activities. The 1999 edition of For the Record is available on the HRI website in both English (http://www.hri.ca/fortherecord1999) and French (http://www.hri.ca/fortherecord1999/bilan1999).

11.2 UN Committees Other than the CESCR

If an NGO has sufficient resources, it may want to challenge violations of economic, social and cultural rights not only through the CESCR review process, but also by participating in reviews of a State by other UN committees that monitor compliance with a treaty. The most logical options are the CEDAW Committee and the Committee on the Rights of the Child (CRC). The treaties which they monitor contain substantial guarantees for economic, social and cultural rights, as well as civil and political rights. If an NGO’s main focus is on women’s or children’s human rights, it may want to approach one of these committees in preference to the CESCR.

Although it may not be an obvious way to promote ESC rights, NGOs should consider providing information to the UN Human Rights Committee, which has the duty to monitor compliance with the International Covenant on Civil and Political Rights. We observed in Chapter 4 that denial of rights in the ICCPR has negative effects on ESC rights. For example, if a State denies political freedom of association or freedom of expression (including free speech and access to information), this denial makes it more difficult for people to protect ESC rights. The ICCPR also contains provisions which can be described as both CP rights and ESC rights, such as freedom of association for workers, guarantees of rights for minorities, and the rights of peoples to benefit from natural resources. And, like other treaties, the ICCPR prohibits discrimination and requires equal treatment of women and men, principles that are relevant to social and economic aspects of life as well as to civil and political concerns.

Connections between CP and ESC rights are demonstrated by the case illustrations in Chapter 4. See also the two case illustrations based on the Lubicon dispute, found in Chapter 8 (under Article 25) and in Chapter 9.10. The first of these describes a complaint to the Human Rights Committee. Note that in 1999, NGOs promoting ESC rights provided input to the Human Rights Committee during its review of Canada’s most recent report under the ICCPR. The Concluding Observations issued by the Human Rights Committee, while of course focusing on CP rights, also criticised Canada’s record in certain economic and social fields.

Two documents of interest to NGOs are: “Joint Submissions of the Charter Committee on Poverty Issues (CCPI), the National Anti-Poverty Organization (NAPO), and the Centre for Equality Rights in Accommodation (CERA) to the United Nations Human Rights Committee on the Occasion of the Consideration of Canada’s Fourth Report on the Implementation of the International Covenant on Civil and Political Rights” (March 1999); and “Presentation to the Standing Committee on Foreign Affairs and International Trade” (March 1999). The second paper may give you ideas on how to approach your own national legislature, congress or parliament to try to promote economic, social and cultural rights. To track down these documents, check the CCPI website at http://www.web.net/ccpi, or write to the CCPI at the address in Annex E.

11.3 Convention on the Rights of the Child

All but two countries have ratified the Convention on the Rights of the Child, including many that have not ratified the ICESCR. The Committee on the Rights of the Child is concerned about the human rights of children and their families, including economic, social and cultural rights. Among the rights stated in the Convention are “maximum child survival and development”; full rights for each child without discrimination; use of “the child’s best interests” as the prevailing standard; protection of children from physical or mental harm and neglect, including sexual abuse or exploitation; free and compulsory primary education; the right to special treatment, education and care for children who have a disability; and the right of children from minority and indigenous populations to enjoy freely their own culture, religion and language.

Because of the small number of countries that a UN committee can review during its infrequent meetings, the CRC will probably not review a State’s record in the same year as the CESCR review. Therefore, a good strategy is to try to ensure that both the CESCR and the CRC are made aware of violations of the economic, social and cultural rights of children and youth. Data related to the rights of young women and girls can also be submitted to the CEDAW Committee.

The CRC operates similarly to the CESCR, reviewing and commenting on periodic reports sent in by States, while taking into account other evidence offered by NGOs. Like the CESCR, the CRC is open to input from NGOs and to their participation in its deliberations. NGOs are encouraged to respond in writing to a State’s report concerning its compliance with the Convention on the Rights of the Child. Most NGOs submitting written information are invited by the Committee to attend the Pre-Sessional Working Group. Like the CESCR, the CRC’s Pre-Sessional Working Group identifies issues for the Committee to raise with the State.

Article 10(3) of the Covenant requires that all children be given special protection and assistance, beyond what is provided for adults, because of children’s general vulnerability. An additional duty of the State is to protect children who are vulnerable to discrimination. One way that the CESCR facilitates monitoring of State compliance is to require each State to identify the groups within its society who are vulnerable because of discrimination. This should be done for adults, but it is especially important with respect to the rights of children. States should also report on the procedures they use for identifying the groups of children who need special protection and assistance.

The children who are particularly vulnerable and are entitled to special protection and assistance may vary from country to country. According to comments made by the CESCR and the CRC, this category may include the following: children who have a foreign nationality; children born “stateless” (without a nationality); girls who are already mothers; children born to mothers who are not married; homeless children; children of ethnic minorities; children who have a disability; street children; and orphans. Other groups who can be described as vulnerable are child labourers, and the children of refugees, migrant workers, “aliens”, and unregistered or undocumented migrants.

The minimum essential obligations of a State include the obligation to protect and aid children in its care, including those in special homes for children. For children who live and work on the street, it is notable that the CESCR has recommended that States take all “necessary legislative and economic measures”, including providing information programmes on mental and physical health care.

In addition to the UN human rights website, a good place to find discussion of children’s ESC rights is at the website of UNICEF (http://www.unicef.org), which refers to the Convention on the Rights of the Child in many of its policies and activities.

11.4 Convention on the Elimination of All Forms of Discrimination Against Women

A committee of independent experts monitors compliance with the economic, social, cultural and other rights of women and girls in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). The CEDAW Committee’s procedures are in many ways similar to those of the CESCR and the CRC. Promotion of the economic, social and cultural rights of women and girls is a substantial part of what both the ESCR and the CEDAW Committees attempt to do. The ESCR Covenant bans sex discrimination and demands gender equity; CEDAW elaborates on these principles in great detail for most facets of human life.

The CEDAW Committee is receptive to contributions from NGOs. To learn how to contact the UN officials who assist the CEDAW Committee, see Annex C.

A publication that explains protections for women’s human rights under the UN and in the human rights systems of regional organisations is: Women’s Human Rights Step by Step (1997). This book provides information on how to use human rights procedures at the national and international levels. It is available through Women, Law and Development International (http://www.wld.org) and the Women’s Rights Project of Human Rights Watch (http://www.hrw.org).

In December 1999 the General Assembly (in Resolution A/54/4) adopted a new treaty linked to CEDAW, called an Optional Protocol. This treaty will allow individuals or groups to submit a complaint (called a “communication”) about a violation of CEDAW to the CEDAW Committee. Note that the Committee will review a communication only if the complaint concerns a country that has become a State Party to the Protocol. Article 11 of the Optional Protocol requires a State Party to ensure the protection of those who submit communications.

The Optional Protocol will also allow the Committee to investigate allegations of very serious or systematic violations of CEDAW committed by a State Party. States that become parties to the Optional Protocol will not be allowed to make exceptions (called “reservations”) to their obligations to comply with any portion of it. Although States have the option of ratifying the Protocol or not, once they do ratify it, the Optional Protocol’s provisions are compulsory.

At the time of writing, the Optional Protocol is not yet legally in force. Readers can check on the status of the Protocol by contacting the CEDAW Committee’s Secretariat.

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

The Committee supervising implementation of the International Convention on the Elimination of All Forms of Racial Discrimination follows procedures similar to those of the CESCR, CEDAW and CRC. The CERD Committee is not the focus of as much attention concerning ESC rights, however.

11.6 The UN Commission on Human Rights, the Sub-Commission on the Promotion and Protection of Human Rights, and Special Mechanisms

Certain “political bodies” of the UN (so called because they consist of representatives of national governments), such as the UN Commission on Human Rights (CHR) and its Sub-Commission on the Promotion and Protection of Human Rights, encompass economic, social and cultural rights within their mandates. NGOs need special status with ECOSOC to participate in proceedings of the UN Commission on Human Rights. Sometimes an NGO that has this status will allow an individual representing a smaller or newer group to register with the UN as part of its delegation at a CHR session. This will permit a person to obtain an identity badge, enter the meeting room and participate in relevant meetings, observe what governments do and say, and perhaps make a brief statement or distribute documents. One source for information on obtaining special NGO status is Human Rights Internet, referred to in section 1 of this chapter. Contact information is provided in Annex E.

The Commission on Human Rights and the Sub-Commission may appoint experts to review and investigate designated issues and recommend remedies. In addition to particular topics, they may focus on the human rights situations in specific countries. The appointed experts may be called Special Rapporteurs, Special Experts, Special Representatives, Independent Experts or members of Working Groups. These appointed experts and working groups are often referred to collectively as “Special Mechanisms”. The differences among these entities are not important for the purposes of this Handbook. The variation among the “Special” titles depends mostly on how the experts are appointed and the body within the UN to which they report. The reports written by these individuals are valuable sources of information and discussion on the meaning of human rights and how they may be implemented.

Special Rapporteurs are sometimes government officials representing countries. Often they are university professors or senior officers of NGOs. These Working Groups, Special Rapporteurs, and other human rights investigators report annually or biannually to the UN bodies that appointed them. They describe what they have learned about a country or about a human rights issue and make recommendations.

Information on the topics being addressed by Special Rapporteurs and other special mechanisms, to which NGOs may contribute information and advice, can be found on the website of the UN High Commissioner for Human Rights. The following examples of current or recent areas of investigation provide a sense of the wide range of subjects examined by the expert individuals and working groups appointed by the Commission or the Sub-commission. Note that this information can change quickly as existing mandates are completed and new ones are begun.

• The right to education.
• Extreme poverty.
• The impact of toxic waste on the enjoyment of human rights.
• Internally displaced persons.
• The sale of children, child prostitution and child pornography.
• Access to drinking water supply and sanitation.
• The relationship between human rights and income distribution.
• The right to food.
• The relationship between international trade union rights and the activities of transnational corporations.

The people who operate as part of UN “human rights mechanisms” know that they cannot obtain a full understanding of what is happening in a country unless NGOs provide them with their own information and opinions, which generally differ from what the government says. When these individuals visit selected countries as part of their investigation, they often seek out opportunities to meet with NGOs there. NGOs are encouraged to provide information and advice to the Special Rapporteur. NGOs are usually the main source of information on violations, and are one of the principal sources of ideas on how to implement economic, social and cultural rights more fully. Often the leading expert on implementation of an ESC right is an individual who works with an NGO. NGOs should normally not be afraid to suggest their ideas directly to UN bodies. If it is risky in the NGO’s country to be identified as a human rights defender, information may be provided indirectly and confidentially through trusted representatives of international NGOs or officials of supportive governments. (See the discussion of Internet security measures in Annex G).

Special rapporteurs and the other special human rights mechanisms can be contacted through the Office of the United Nations High Commissioner for Human Rights in Geneva.

11.7 Technical Advice and Assistance from the Office of the High Commissioner for Human Rights

Staff from the Office of the High Commissioner for Human Rights may work with a government over a period of years to help it to correct violations and meet its treaty obligations. UN staff offer “technical advice and assistance” to assist governments wishing to implement economic, social and cultural rights more fully. This kind of assistance is usually not offered or sought until the country’s human rights failures are revealed and criticised publicly. Governments cannot be forced to accept such assistance, however. Some will welcome advice and aid because they genuinely want to improve their human rights performance. Others will accept it reluctantly, because doing so is better than being continually condemned in the eyes and ears of the world for consistently violating human rights.

Mainstreaming Human Rights Within the United Nations

The UN Secretary General and the High Commissioner for Human Rights have called for the integration of human rights into all spheres of UN operations, as part of overall UN reform. Agencies within the UN system have taken up the challenge in different ways and to different degrees. Several examples are given below, but this list is not exhaustive.

11.8 International Labour Organisation (ILO)

Although the CESCR is the main UN expert group monitoring compliance with economic, social and cultural rights, most complaints about violations of the rights of workers and trade unions are dealt with by the ILO. Trade unions regularly submit complaints about violations of ILO conventions to ILO bodies. The ability of non-governmental groups like trade unions to submit complaints directly to a UN body is unusual in the UN system, which is oriented to states. For example, there is currently no procedure for individuals or groups to file complaints of violations that will trigger a review process by the CESCR. (See Chapter 10 for information on efforts to adopt an Optional Protol that will permit individual complaints.)

The ILO is an agency of the United Nations. ILO supervisory bodies are made up of representatives of workers, employers and governments. When the ILO recommends to a country that it improve respect for, or stop violations of, workers’ rights, the country is expected to comply voluntarily.

State members of the ILO must report every two years on measures they have taken to implement the most important treaties (“Conventions”), and every four years for less central treaties. The reports are examined by an independent committee of experts, who may convey either “observations” or “direct requests” to a state to express concerns about its record. The ILO also has a process for assessing how well the practices of States conform to important labour rights treaties, even if the States have not ratified these treaties. This procedure emphasises the human rights features of the various ILO Conventions. The ILO has a special procedure for receiving and investigating complaints concerning violations of the right to freedom of association. Allegations may be investigated by the ILO’s Fact Finding and Conciliation Commission.

The ILO reports regularly to the CESCR, but these reports may not give the full picture on workers’ rights. NGOs and trade unions will need to ensure that accurate and full information (in their view) is supplied to the CESCR. Countries rarely change their laws or policies in response to criticism from the ILO, however. States are more likely to respond to large-scale campaigns of citizens or groups of citizens such as workers (including threats of strikes). For information on the ILO, you may contact its website (http://www.ilo.org), or the International Confederation of Free Trade Unions (http://www.icftu.org). The latter is an association of trade unions and trade union federations that are independent of State or employer control.

In June 1998, the ILO adopted a Declaration on Fundamental Principles and Rights at Work, affirming agreement on universal core labour standards found in certain ILO Conventions, including the abolition of forced labour (Conventions 29 and 105); freedom of association and the right to collective bargaining (Conventions 87 and 98); abolition of child labour (Convention 138); and Non-Discrimination in Employment (Conventions 100 and 111).

11.9 World Health Organisation and UNICEF

The World Health Organisation (WHO) and UNICEF (the United Nations Children’s Fund) have stated that health rights and children’s rights respectively are central to their work. WHO explicitly refers to the right to health as a focus of its objectives, and it has tried to find reliable indicators that can show gradual achievement of a country’s obligations with respect to the right to health. The WHO constitution refers to the enjoyment of the highest standards of health as a fundamental right of each human being. UNICEF has adopted a human rights framework for many of its programmes, guided by the Convention on the Rights of the Child.

11.10 United Nations Development Programme (UNDP)

The UNDP is a recent convert to the view that human rights, especially ESC rights, should be nearer to the heart of its planning and activities. In January 1998, the UNDP and Mary Robinson, the High Commissioner for Human Rights, jointly inaugurated a policy document called “Integrating Human Rights with Sustainable Human Development”. In the document, the UNDP promised that “human rights [would] be mainstreamed in its activities and not relegated only to specific human rights projects”. It contemplated developing “a human rights-based framework in its antipoverty, pro-sustainable human development work”. The UNDP has produced a policy on human rights to guide its related work with national governments.

11.11 World Bank (International Bank for Reconstruction and Development)

In 1993 the World Bank took steps toward accepting greater public openness and responsibility concerning the outcomes of the development programmes that it supports. These changes were the result of frequent criticism of the Bank. Critics said that development projects supported by the World Bank often harmed large numbers of people and that the Bank showed insensitivity to these negative impacts. The Bank was also criticised for tolerating the failure of many borrowing countries to reduce the negative social and environmental effects of projects. The Bank was accused of failing to follow its own guidelines and procedures. The key motivator for change at the Bank was a worldwide campaign, at the local and international levels, against the construction of a massive project in India, the Sardar Sarovar dam, discussed in Chapter 4.

An innovation at the World Bank in 1993, in response to situations like the Sardar Sarovar controversy, was the creation of an Inspection Panel, made up of three independent experts. Two or more people from the territory of a borrowing country can ask the Inspection Panel to investigate World Bank activities. Those making the request must be able to claim that they are likely to suffer a material adverse effect or that they have been significantly harmed as a result of the Bank’s violation of its own guidelines. If a complaint sent to the Panel satisfies preliminary requirements, and the Panel recommends an investigation, the Bank will authorise one.

Those requesting an investigation may ask the Panel to keep their identities confidential. In discussions with the World Bank and with government representatives, the individual applicants can be represented (for example) by an NGO and/or by lawyers. That is what occurred in the example from Argentina described below.

Investigations are conducted by one or more Panel members, who are given access to all relevant Bank files and personnel. Panel members may also visit places affected by the activity under investigation and meet with people who may be affected. The report resulting from the Panel’s investigation goes to the Bank staff and Bank executive directors. The report is released to the complainant(s) and the public only after the Bank’s staff and directors have resolved any internal disagreements about the case. The Bank’s president is required to respond to the Panel’s findings by informing the executive directors of actions that he or she intends to take, if any. The Panel cannot order the Bank to take action.

The request for an investigation must state that World Bank officials have been given an opportunity to deal with the complaint. It must “assert that its subject matter has been brought to Management’s attention and that, in the requester’s view, Management has failed to respond adequately [by] demonstrating that it has followed or is taking steps to follow the Bank’s policies and procedures”.

Guidance is available for NGOs and others to follow in preparing claims for the Panel. Two non-governmental entities that are very knowledgeable about the Bank and its Inspection Panel are the Bank Information Centre, at http://www.bicusa.org, and the Center for International Environmental Law (CIEL), at http://www.ciel.org. CIEL has published a Citizen’s Guide on the World Bank’s Inspection Panel. Many of the cases reviewed by the Inspection Panel concern potential damage to the environment, as well as to economic, social and cultural rights.

The Bank reviewed Inspection Panel procedures in 1999 and concluded by confirming most of the existing process. Anyone wanting up-to-date details on technical matters should contact the World Bank at the addresses given in Annex C or visit the Bank’s website at http://www.worldbank.org. At the website you may search for “Conclusions of the Board’s Second Review of the Inspection Panel April 20, 1999”.

The existence and actions of the Inspection Panel implicitly acknowledge that the human rights of ordinary people must be respected in programmes and projects supported by the World Bank. Additional proposals have been put forward for better integration of ESC rights into World Bank plans and activities. See, for example, Paul Hunt, Reclaiming Social Rights, International and Comparative Perspectives, listed in Annex A.

11.12 Regional Promotion of ESC Rights

In order to keep this Handbook to a manageable size, we have not been able to examine the economic, social and cultural rights covered by such instruments as the African Charter on Human and Peoples’ Rights, the American Convention on Human Rights and the San Salvador Protocol, and the European Social Charter, nor the ESCR protections and remedies offered by national constitutions and litigation in some countries of Africa, Asia and Latin America and in the United States. Nonetheless, a few of the case illustrations presented in this Handbook are drawn from the human rights work of regional organisations and national justice systems.

The European Social Charter of 1961 was upgraded with an optional Additional Protocol in 1988 and strengthened further in the 1990s (although the revisions were not yet in force in mid-2000).

In 1999, two cases taken before the Inter-American Court on Human Rights challenged alleged violations of ESC rights. One case against Nicaragua dealt with the deprivation of lands that were historically the territory of indigenous tribes. The second, a case against Panama, concerned the retroactive application of a law that left 270 people unemployed. The Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) came into force in November 1999, when it received the designated number of ratifications. Now that it is in force, attention to economic, social and cultural rights within the Americas should be heightened.

The advent of a new African Court to hear cases that arise under the African Charter on Human and Peoples’ Rights could eventually strengthen protections for ESC rights on that continent as well. The agreement creating an African human rights court was adopted by the Organisation of African Unity and is currently awaiting enough ratifications to bring it into force.