Update on the UN Committee on Economic, Social and Cultural Rights, April 2020
GI-ESCR’s CESCR Updates provide information about developments in the work of the Committee on Economic, Social and Cultural Rights. This update provides information about:
CESCR Covid-19 Statement
On 6 April the CESCR released a statement on the coronavirus pandemic and economic, social and cultural rights (ESCRs).
The statement sets out the various ways in which the pandemic impacts ESCRs, stressing that decades of underinvestment have left public health-care systems and social programmes ill-equipped to deal with this challenge. It highlights the fact that older persons and those with pre-existing health conditions are particularly vulnerable if infected, whilst groups such as prisoners, residents of informal settlements, delivery workers, and health care workers are at a heightened risk of infection.
A number of groups will also be “severely disadvantaged by the economic consequences of measures adopted in a number of countries to contain the spread of COVID-19,” such as domestic and informal workers. In addition, the pandemic threatens to deepen gender inequalities “as the burden of caring for children at home and sick or older family members falls disproportionately on women”. The Committee also points out that many indigenous peoples, refugees and asylum seekers lack access to necessary resources and services, such as water, soap, and COVID-19 testing facilities.
The statement recommends that states take a series of urgent measures in order to ensure that Covenant rights and obligations are protected and fulfilled during the crisis. For example, states should ensure that the response to coronavirus is “based on the best available scientific evidence to protect public health” and that any measures that limit Covenant rights are necessary, reasonable and proportionate. They should also mobilise the resources of both the public and the private sectors, ensure that health care workers are provided with proper protective equipment, and adopt targeted measures to mitigate adverse effects on vulnerable groups, such as introducing moratoriums on evictions.
The statement also stresses the importance of international cooperation and the “sharing of research, medical equipment and supplies, and best practices in combating the virus”. In this regard, it recommends that states “use their voting powers in international financial institutions to alleviate the financial burden of developing countries in combating the pandemic”.
Looking forward, the Committee calls on “all States parties to ensure that the extraordinary mobilization of resources to deal with the COVID-19 pandemic provides the impetus for long-term resource mobilization towards the full and equal enjoyment of the economic, social and cultural rights enshrined in the Covenant.”
The full statement can be found HERE.
The CESCR’s press release announcing the statement can be found HERE.
New General Comment on science and economic, social and cultural rights
During its session in February 2020, the UN Committee on Economic, Social and Cultural Rights (CESCR) adopted a new General Comment on the relationship between science and economic, social and cultural rights (ESCRs), focusing on article 15.1.b of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The new General Comment comes at a time when the implications of science for human rights are particularly pertinent and receiving a huge amount of public attention, due to the covid-19 pandemic and the on-going climate crisis. It is also highly relevant to contemporary debates about artificial intelligence and surveillance technology.
This General Comment addresses these issues and highlights throughout how economic inequality undermines the equal enjoyment of the rights in article 15 ICESCR and how equal access to scientific education and to the benefits of scientific progress can contribute to breaking the cycle of inequality.
The Committee was motivated to develop the General Comment 25 (GC25) because “science is one of the areas of the Covenant that State Parties give least attention to in their reports and dialogues with the Committee”. GC25 follows on from the Committee’s General Comment No. 17 on “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author”. It focuses primarily on the “right of everyone to enjoy the benefits of scientific progress and its applications” (article 15.1.b of the Covenant), but also seeks to develop the broader relationship between science and ESCRs.
Section II of GC25 identifies and defines the normative content, establishing the meaning of the term “scientific progress and its applications” and making clear that article 15.1.b enshrines a “right to participate and to enjoy the benefits of scientific progress and its applications (Hereinafter: RPEBSPA).”
Section III establishes the five essential elements of the RPEBSPA:
“Availability”, which “means that scientific progress is actually taking place, and that scientific knowledge and its applications are protected and widely disseminated”;
“Accessibility”, which requires that scientific progress and its applications be accessible for all persons, without discrimination;
“Quality”, which necessitates that access to the applications of science is “to the most advanced, up-to-date, and generally accepted and verifiable science available at the time”;
“Acceptability”, which entails that science should be “disseminated in such a manner as to facilitate their [its] acceptance in different cultural and social contexts”; and
The protection of freedom of research, which is specifically protected by art 15.3.
This section also identifies acceptable limits on the right, such as measures that seek to “guarantee the safety and quality of products used by persons”.
Section IV of the General Comment sets out the obligations of states with respect to the RPEBSPA. It first establishes general obligations, such as the duty to “take steps, to the maximum of their available resources, for the full realization of the RPEBSPA”, the strong presumption that retrogressive measures are not permissible and the immediate obligation to eliminate all forms of discrimination against individuals and groups in their enjoyment of the RPEBSPA. It then outlines the way in which “special attention should be paid to certain groups who have experienced systemic discrimination in the enjoyment of the RPEBSPA, such as women, persons with disabilities, LGBTI, indigenous peoples and persons in poverty.” In this regard, the General Comment details the way in which “economic inequality hinders equal access to scientific education and to the benefits of scientific progress for low-income households” and calls on states to make all efforts to break the “vicious circle between substantive inequality and unequal access to the RPEBSPA”.
States have the obligation to respect the RPEBSPA and refrain from taking actions that interfere with its enjoyment, such as arbitrarily limiting access to the internet. They must also protect the RPEBSPA by adopting measures to prevent other actors from causing harm, such as taking action to combat the spread of “false or misleading scientific information.” States should also fulfill the RPESBPA by adopting positive measures aimed at ensuring full realization of the right. They have a positive duty to “actively promote the advancement of science through, inter alia, education and investment in science and technology”.
GC25 also identifies a number of core obligations which states must implement as a matter of priority. These include the obligation to “develop a participatory national framework law on the RPEBSPA, which includes legal remedies in case of violations, and adopt and implement a participatory national strategy or an action plan for the realization of the RPEBSPA…” and to “ensure that public resources prioritize research that is directed to areas with the greatest need for scientific progress in health, food and other basic needs”.
Section V of GC25 concerns “special topics of broad application”. It emphasises the important relationship between science and transparency and participation, stating that states should promote a “culture of active citizen engagement with science”. Participation includes “the right to information and participation in controlling the risks involved in particular scientific processes and its applications”, with the precautionary principle playing a significant role in this context.
This section also examines the “complex” relationship between the REBSPA and private scientific research and intellectual property (IP). It stresses that the “large privatization of scientific research without any other consideration might sometimes have negative effects on the enjoyment of the REBSPA” and ESCRs more broadly, for example by skewing research priorities towards those that are most profitable. It also considers the instrumental value of the REBSPA as an “essential tool for the realization of other ESCRs, in particular for the right to food and the right to health”. It reflects on the risks and promise of new and emerging technologies, noting that whilst artificial intelligence may lead to enormous productive gains it could also “intensify social inequalities by increasing unemployment and segregation in the labor market”. The Committee recommends: global regulations to effectively manage the new technologies; decisions concerning the development and use of these technologies be adopted within a human rights framework; establish a legal framework that imposes on non-State actors, a duty of human rights due diligence; and regulate, according to human rights principles, the ownership and control of data.
Section VI of GC25 highlights the importance of the duty to cooperate internationally towards the fulfilment of all ESCRs, which is reinforced by a specific reference to international cooperation within article 15.4. This duty is essential due to inequalities between states and the fact that global threats such as climate change “cannot be adequately addressed without robust international cooperation.” It is also particularly relevant to pandemics, since “virus[es] and other pathogens do not respect borders”. In such contexts the WHO’s role is “fundamental and should be supported”, with the sharing of the best scientific knowledge “crucial to mitigate the impact of the disease and to expedite the discovery of effective treatments and vaccines”.
States also have extra-territorial obligations in relation to the RPEBSPA, including to “regulate and monitor the conduct of multinational companies over which they can exercise control in order that these companies exercise due diligence to respect RPEBSPA”.
The final section identifies four types of measures which should be implemented by national authorities. It calls on states to: “put in place a normative framework that ensures the full enjoyment of the RPEBSPA”; “develop a national plan of action to promote scientific progress and to disseminate its results”; identify appropriate indicators and benchmarks; and “establish effective mechanisms and institutions … to prevent violations of the right”.
General Comment 25 can be found HERE.
CESCR Elections
The CESCR elections were scheduled to occur in April 2020. However, due to the covid-19 pandemic, those elections cannot go ahead as planned.
The High Commissioner for Human Rights has announced that ECOSOC will “proceed with decision making through the silence procedure, including with the CESCR April election, but only for elections of positions with clean slates.” The High Commissioner added that competitive elections requiring secret ballots “have been postponed until when in-person meetings are possible.”
This was confirmed during the Human Rights Council virtual meeting with the High Commissioner for Human Rights to discuss human rights implications of COVID-19. The webcast is accessible HERE.
Sitting members’ terms expire on 31 December 2020. Therefore, if the postponed elections can proceed before the end of 2020, all seats should be able to be filled for 2021.
Palais Wilson, Geneva
New Decision under the Optional Protocol:
Rosario Gómez Limón Pardo v Spain, Communication No. 52/2018
At its session in February, the Committee considered seven communications under the Optional Protocol to the ICESCR. Six of those communications were discontinued and one communication was the subject of a decision on the merits in which the Committee found a violation of the ICESCR.
Those Views have recently been published on the Committee’s website. GI-ESCR has prepared a case summary of the merits decision (communication No. 52/2018).
The case of Rosario Gómez Limón Pardo v Spain concerned an elderly woman who was evicted from her apartment that she had rented for most of her life. The author was not entitled to social housing and claims she was not offered appropriate alternative accommodation by the State and was therefore forced to move to temporary accommodation where she lacked security of tenure.
The Committee found a violation of the author’s right to adequate housing (article 11) since the Court failed to undertake a proper proportionality assessment, involving consideration of the consequences for the author, before ordering the eviction. The Committee also found a violation of the Optional Protocol (article 5), since the State failed to comply with the interim measures ordered by the Committee, without providing any explanation for this.
Our case summary can be found HERE.
The full decision is currently only available in Spanish and can be found HERE.
Updated Schedule for State Reporting Procedure
A tentative program of work for the 68th CESCR Session (28 Sep 2020 - 16 Oct 2020) is now available and can be found HERE.
Finland has recently submitted its seventh periodic report ahead of its review at the 68th Session. The report can be accessed HERE.
There has been a change to the schedule of states for which the Committee will prepare a list of issues at its 67th Pre-Sessional Working Group (19th Oct 2020 – 23rd Oct 2020). The Committee will now prepare a List of Issues for Tajikistan, alongside El Salvador, Guatemala, Luxembourg, and Yemen and a List of Issues Prior to Reporting for Sweden. Panama is no longer scheduled.
The updated schedule can be found HERE.