61st session of the Committee on Economic, Social and Cultural Rights (29 May to 23 June)
From 29 May to 23 June 2017, the Committee on Economic, Social and Cultural Rights (CESCR) held its 61st session.
It was a long and busy session with six State Party reports considered, two Communications examined, discussions on a number of General Comments, including the adoption of the General Comment on Business Activities and ESC rights and a meeting with States Parties. In addition the Committee adopted two new ‘Follow-Up Procedures’ at this session – one in relation to Concluding Observations and one in relation to Views.
Finally, the Committee participated in an informal meeting with the Committee on the Rights of the Child to discuss the outcome of the High-Level Working Group on Health and Human Rights of Women, Children and Adolescents. It had also met with the Independent Expert on Sexual Orientation and Gender Identity, Mr Vitit Muntarbhorn, and with the Chair-Rapporteur of the Open Ended Inter-governmental Working Group on the Rights of Peasants and other people working in rural areas, Ms Nardi Suxo Iturry, Permanent Representative of Bolivia to the UN in Geneva.
There was no pre-session following this session.
State Reporting Procedure
The Committee considered the State Party reports for the following States:
Australia, Netherlands, Sri Lanka, Uruguay, Pakistan and Liechtenstein
The Committee has published its Concluding Observations for these States HERE.
Follow-up procedure for Concluding Observations
In relation to the follow-up procedure for Concluding Observations the Committee explained its perspective on follow-up:
‘The Committee views the follow-up action as an integral part of the review process aimed at further enhancing the enjoyment of economic, social and cultural rights, and enabling civil society, NGOs, and human rights defenders in this regard’
CESCR Note on the procedure for follow-up to concluding observations – Accessible from CESCR’s homepage
The procedure has been introduced on a pilot basis and a Rapporteur on follow-up will be appointed to manage it. The procedure will be assessed by the Committee after 4 years.
The Committee will select up to 3 of the Concluding Observations which require urgent action and which are attainable within 18 months, and the State party will be required to respond to those recommendations within 18 months. The State’s replies will constitute its follow-up report (of no more than 3,500 words) and, importantly, it will be made public on the Committee’s webpage.
Civil society and NHRI input into the follow-up procedure is envisaged. Civil society and NHRIs may submit information (maximum of 3,500 words) to the Committee about the State’s efforts to implement the 3 selected Concluding Observations, any time within the 18 months after the publication of the Concluding Observations, or within 1 month after the State’s follow-up report is made public. Note that civil society and NHRI input will be made public also.
The Committee will then consider all information received, in closed meeting. It will assess the implementation efforts and transmit its assessment to the State Party and publish it on the Committee’s webpage.
The Committee has adopted a soft grading system for assessing follow-up:
Sufficient progress;
Insufficient progress;
Lack of sufficient information to make assessment; and
No response.
In all cases, except ‘sufficient progress’ the matter will be required to be addressed in the next Periodic report of the State Party and in the case of ‘no response’ it will be considered a priority in the next State Dialogue. If the selected Concluding Observations have not seen sufficient progress by the time of the State’s next Periodic report and Dialogue, ‘a new cycle for the follow-up procedure will commence’ and presumably the outstanding follow-up issues will remain in the follow-up procedure. What is not clear is how the Committee will manage where there is a growing list of follow-up issues for which there has been insufficient progress, for one State. For instance, if a State has taken no, or insufficient, action in relation to the selected Concluding Observations, at the next State review will those issues remain in the follow-up procedure and 3 new Concluding Observations be selected for the next round – or is there a limit of 3 on-going follow-up issues at a time?
The follow-up procedure for Concluding Observations will commence operation with the States reviewed at this session. This means that in the Concluding Observations for Australia, Netherlands, Sri Lanka, Uruguay, Pakistan and Liechtenstein, the Committee has identified 3 Concluding Observations that the State must prioritise for implementation and report back to the Committee on within 18 months.
Communications under the OP-ICESCR
The Committee considered two Communications during this session and found one inadmissible and the other to be a violation of the Covenant. A third Communication was discontinued at the request of the Author.
The documentation is being finalised and the decisions will be published on the GI-ESCR website in approximately 1-2 weeks.
Follow-up procedure for Views
The Committee adopted its ‘Working methods concerning the Committee’s follow-up to Views under the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights’ which elaborates its procedure for following-up implementation of Views as provided for in article 9 of the OP-ICESCR. It applies to both ‘individual measures’ and ‘general recommendations’.
Within 6 months of the Views, the State must submit information on the steps taken to give effect to the Committee’s recommendations and that information will be sent to the Author for comment within 2 months. The Communications Working Group will assess all information received and may hold meetings with the State’s Geneva mission, and will then submit an annual report to the Committee’s Plenary with an assessment of the measures taken by the State and recommended action. Whilst not specifically stated, it appears that this will be a public report.
The Committee has decided not to use a grading system for its assessment of the implementation of Views.
Importantly, the Committee notes that Article 9 OP-ICESCR does not say the follow-up procedure is confidential, and therefore the Committee concludes that it should be public and it may upload the State’s and Author’s submissions to its website (subject to prescribed considerations). The Committee states that the alternative is ‘to include summaries of the submissions in its report on follow-up to Views.’
The participation of NHRIs and civil society is also discussed in the Working Methods. The Committee states that it ‘may consider allowing’ such participation ‘by way of providing the Committee with information concerning the implementation of general recommendations.’ Note that this implies that NHRIs and civil society would not be able to submit information about ‘Individual measures’ (i.e. recommendations specific to the victim).
Thematic areas of work
Economic, social and cultural rights in the context of business activities
Following the Committee’s successful ‘Day of Discussion’ at the last session (February 2017), at this session the Committee adopted the final text for General Comment No. 24 on ‘State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities.’ The General Comment is available HERE.
General Comment No. 24 is a comprehensive documentation of the wide-ranging issues that arise for the enjoyment of economic, social and cultural rights in the context of business activities. It usefully describes State Parties’ obligations under the ICESCR in the context of privatisation of public services such as education, health and water and relating to government procurement of goods and services from the private sector. It describes how the obligation to protect will require States to regulate business conduct and explains that States may violate the ICESCR where they fail to take reasonable measures that could have prevented the reasonably foreseeable violation of ESC rights caused by a private entity’s conduct. Notably, it states that States have ‘a positive duty to adopt a legal framework requiring business entities to exercise human rights due diligence in order to identify, prevent and mitigate the risks of violations of Covenant rights’.
It also devotes significant attention to extra-territorial obligations under ICESCR stating that States should require corporations within their jurisdiction to ‘act with due diligence to identify, prevent and address abuses to Covenant rights by such subsidiaries and business partners, wherever they may be located’.
On remedies the Committee emphasises that ‘effective monitoring, investigation and accountability mechanisms must be put in place to ensure accountability and access to remedies, preferably judicial remedies, for those whose Covenant rights have been violated in the context of business activities.’ It also says States must ‘remove substantive, procedural and practical barriers to remedies, including by establishing parent company or group liability regimes, providing legal aid and other funding schemes to claimants, enabling human rights-related class actions and public interest litigation, facilitating access to relevant information and the collection of evidence abroad, including witness testimony, and allowing such evidence to be presented in judicial proceedings.’
In relation to judicial proceedings for ESC rights abuses involving corporations the Committee says States should facilitate access to relevant information in judicial proceedings through measures such as mandatory disclosure laws, procedural rules regarding disclosure of evidence held by the defendant, shifting the burden of proof where the facts and events relevant for resolving a claim lie wholly or in part within the exclusive knowledge of the corporate defendant, prohibiting SLAPP claims.
Other important issues addressed in the General Comment include:
taxation and financial secrecy and their impact on the availability of maximum resources;
trade and investment agreements and dispute settlement and their negative impact on human rights and on State’s ability to take measures to implement its obligations under the ICESCR;
special considerations regarding indigenous peoples; and
the important role of human rights defenders in ensuring corporate accountability.
Proposed General Comments
The Committee continued its consideration of proposed General Comments on: article 15 (b) the right to enjoy the benefits of scientific progress and its applications; land and ESC rights; and development and the environment.
Next Session
The sixty-second session of the Committee will be held from 18 September to 6 October 2017 during which the Committee will consider the reports of:
Colombia (19 & 20 Sept)
Mexico (28 & 29 Sept)
Republic of Korea (20 & 21 Sept)
Republic of Moldova (21 & 22 Sept)
Russian Federation (25 & 26 Sept)
The Programme of Work for the 62nd session is HERE.
The deadline for civil society reports/submissions in respect of the review of these countries is 27 August 2017.
The Committee’s Pre-sessional Working Group will meet during the week of 9 October – 13 October 2017 and will consider the List of Issues for:
Civil society Parallel reports in respect of the List of Issues for these countries should be submitted to the CESCR Secretariat by 27 August 2017.
Overdue and non-reporting States
There continues to be a large number of States Parties to the Covenant who are significantly overdue in submitting their State report, including many States Parties for whom it is their initial report. The issue of over-due reports and non-reporting States was highlighted by the High Commissioner for Human Rights during his opening address to the June session of the Human Rights Council. He noted that only 33 States were fully up to date with their Treaty Body reporting.
The Secretariat has published a summary of the reporting status of all State Parties to the Covenant. It shows which States are overdue in reporting, including some States that have never reported. Civil society organisations may wish to use the report to identify when a State is due to submit its report, whether it is overdue and to encourage the State to engage in the reporting process.