37th session of the UN Human Rights Council
This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 37th session of the Human Rights Council (March 2018).
This Update provides information about:
Economic, social & cultural rights
The Office of the High Commissioner for Human Rights (OHCHR) submitted its annual report to the Council on the realisation of ESC rights (A/HRC/37/30), which focused on ‘the role of economic, social and cultural rights in the transformation towards sustainable and resilient societies’, picking up the language of the SDGs.
The report identifies linkages between ESC rights and hazards, disasters, crises and conflicts and analyses the concept of resilience from a human rights perspective, outlining elements of a human rights-based approach to building sustainable and resilient societies. The report finds that a human rights-based approach to building resilience is value-based, grounded in the international human rights legal framework and emphasises the indivisibility and interdependence of all human rights. It focuses on rights holders and requires the effective accountability of duty bearers.
Beginning with the threat of climate change to ESC rights, the report discusses the impacts of disasters on human rights, highlighting threats to the rights to water, sanitation, food, health and life, and impacts on migration. It then considers violence and conflict and some of the rights based causes, such as: scarcity and competition over natural resources (water and food insecurity), often due to climate change; denial of ESC rights, including the context of financial crises and austerity measures, leading to social unrest; urbanisation and resulting strains on employment, social services and housing; and related problems of poverty, inequality and the commodification of social services, particularly housing.
The concept of resilience is then interrogated from a human rights perspective. The report notes that resilience is a relatively new concept which has emerged from the Sustainable Development Agenda, and from climate change, humanitarian and disaster risk policy frameworks. There are very few specific references to resilience in human rights law. However, disaster risk reduction and mitigation of the negative impacts of climate change and other crises have received increased attention by human rights mechanisms in recent years. A significant body of work exists under the treaty bodies, especially CESCR, and under the special procedures mandates relating to the environment, internally displaced persons, the right to adequate housing, water and sanitation and indigenous peoples.
In identifying a human rights approach to resilience, the report emphasises ‘moving beyond the traditional focus on social and ecological systems to the need for individuals to be resilient. A human rights-based approach views affected persons as rights holders and not just objects or beneficiaries of development and humanitarian activities.’ It also highlights procedural rights that empower people, such as freedom of expression, including the right to information and the right to public participation in decision-making.
Further, the report asserts ‘Human rights can help to gain a deeper understanding of the root causes of vulnerabilities and the requirements of resilience-building.’ For instance, it is clear that climate and environmental hazards are intimately linked with inequalities: ‘Climate hazards aggravate the pre-existing inequalities that are at the root of poverty, marginalization and exclusion.’ Therefore, addressing inequality and non-discrimination in accordance with human rights law, are critical to reducing vulnerability and building resilience.
The third contribution of human rights to building resilience and working towards sustainable societies, identified in the report, is accountability and remedies. Finally, the report addresses the integration of ESC rights into early warning and risk analysis. It notes that despite ‘increasing evidence that violations of economic, social and cultural rights are causes, consequences and often even predictors of an escalation in human rights violations, violence and conflict…. existing early warning mechanisms tend to overlook those linkages’.
The report identifies some cross-cutting risk factors: ‘severe inequality, lack of access to effective grievance mechanisms, lack of meaningful consultation, lack of democratic space for an active civil society and lack of media independence.’ And some thematic, contextual risk factors: ‘unequal access to natural resources, in particular land, degradation in social services and unemployment’.
Resolution on economic, social and cultural rights
The Human Rights Council adopted its annual resolution on ESC rights (A/HRC/RES/37/13) by consensus. The broad text of the resolution repeated many of the paragraphs from the 2017 resolution on issues such as: ratification of the Optional Protocol to the ICESCR; the importance of effective domestic remedies; the centrality of equality and non-discrimination; social protection floors; and ‘the important contributions of regional organizations, national human rights institutions and civil society, including nongovernmental organizations, academic and research institutions, business enterprises and trade unions’ to ESC rights. As is usual, the resolution also took up the subject of the Secretary General’s report discussed above.
For instance, the resolution calls on States to ‘mitigate the risks of natural and human made hazards and disasters, such as those arising from the impacts of, inter alia, climate change and unsustainable development planning and activities, acknowledging links between sustainability and resilience and the enjoyment of all human rights’. It also notes the importance of freedom of expression, freedom to seek, receive and impart information and the right of citizens to take part in the conduct of public affairs, to disaster preparedness and protection from environmental harm. In this respect, the resolution urges States to set up ‘mechanisms and procedures of information, education, prevention, mitigation, participation, investigation, prosecution and recovery in case of natural and human made hazards and disasters’.
Finally, the resolution requests the Secretary General to focus its next annual report on the realisation of ESC rights on the theme of the 2019 High Level Political Forum (HLPF) of the Sustainable Development Agenda: the role of ESC rights in empowering people and ensuring inclusiveness and equality.
Right to adequate housing
In her annual report to the Human Rights Council, the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Ms Leilani Farha, provides States and other actors with concrete guidance on developing and implementing effective rights-based housing strategies (A/HRC/RES/37/53).
The report explains what a housing strategy is and the difference between a housing strategy and housing policy. It outlines the value of a human rights-based approach to housing strategies and describes the ten key principles upon which such strategies must be based. The principles include elements such as: legal recognition of the right to adequate housing; legal protection of the right to equality and non-discrimination; prioritisation of those most in need; meaningful participation of affected persons; sufficient resources through accountable budgeting and tax justice; access to justice; and clarification of the obligations of private actors and regulation of financial, housing and real estate markets.
The Special Rapporteur explains that there is no “one size fits all” housing strategy, but there are important requirements of each principle that should be shaped to fit specific national and local contexts. These draw both on human rights norms, as articulated by UN treaty bodies, courts and human rights institutions, and on the practical experiences of the Special Rapporteur, governments, civil society and experts. The report also provides examples of how these key principles have been implemented in practice, in diverse national and local contexts.
According to the Special Rapporteur, ‘If the historic commitments made through the Sustainable Development Goals and the New Urban Agenda are to be taken seriously, each State must design and implement a human rights-based housing strategy.’ Human rights-based housing strategies will enable States to translate their lofty commitments into practical measures that transform housing systems so that they ensure access for all to safe, affordable and adequate housing. The report concludes with a checklist to facilitate the design, monitoring, financing and implementation of human rights-based housing strategies.
The Special Rapporteur also presented her report of her mission to Chile (A/HRC/37/53/Add.1).
Resolution on the right to adequate housing
The core group of Germany, Brazil, Namibia and Finland presented its bi-annual resolution on the right to adequate housing (A/HRC/RES/37/4) at this Council session.
The resolution mentions the impacts of climate change and of natural disasters on the right to housing. Following the 2017 thematic report of the Special Rapporteur on the financialisation of housing, the resolution also notes concerns ‘that investment in housing has often become primarily a financial instrument solely and exclusively focused on seeking high returns, disconnecting it from its social function as a place to live in security and dignity’ and calls on States to ‘take measures necessary to curb factors which result in a lack of affordable housing, such as housing speculation and the “financialization of housing”’.
The Council welcomes the work of the Special Rapporteur, although not specifically her thematic report on housing strategies. Nevertheless, the resolution calls on States to implement the 2030 Agenda for Sustainable Development, including target 11.1, to adopt national housing strategies that respect human rights and to give due consideration to integrating the right to adequate housing into the implementation of the New Urban Agenda. There are also paragraphs focusing on positive measures to prevent and eliminate homelessness, equality and non-discrimination and women’s right to adequate housing. A number of these paragraphs were repeated from the last resolution (2016) and there were limited new elements.
A group of housing rights civil society organisations who were scrutinising the negotiation process, whilst supportive of the initiative and the substance of the resolution, were disappointed that the continuing scourge of forced evictions was not emphasised enough in the text.
Human rights and environment
At this session, the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment presented two reports and also reports of his missions to Mongolia (A/HRC/37/58/Add.2) and Uruguay (A/HRC/37/58/Add.1).
The first report was his final annual thematic report (A/HRC/37/58) to the Human Rights Council, addressing the rights of children in relation to the environment, the ways that environmental harm prevents children from enjoying their human rights and the obligations that States have, to protect children from such harm.
In this report on children’s rights, the Special Rapporteur points out that children (persons under the age of 18) are the group most vulnerable to environmental harm and ‘environmental harm has especially severe effects on children under the age of 5’. He discusses the effects on children of air pollution, water pollution and climate change, highlighting that ‘climate change contributes to extreme weather events, water scarcity and food insecurity, air pollution and vector-borne and infectious diseases, all of which already have severe effects on children’. The Special Rapporteur emphasises that the health impacts of climate change are not the only impacts on children’s rights. Climate change heightens existing social and economic inequalities, entrenches poverty and reverses development progress. For example, ‘climate change-induced food insecurity is already increasing the number of marriages of girl children, who are pressured to marry to reduce burdens on their families of origin’. The report also discusses the impacts on children of chemicals (including pesticides), toxic substances and wastes and the loss of biodiversity and access to nature.
The specific human rights impacted are then identified by the Special Rapporteur: the rights to life, to health, to development, to an adequate standard of living, food, housing, water and sanitation and rights to play and recreation. Turning then to obligations, the Special Rapporteur explains that States’ human rights obligations ‘apply with particular force to the rights of children, who are especially at risk from environmental harm and often unable to protect their own rights’. He identifies educational and procedural obligations: of environmental education (CRC Art 29); of information and assessment (CRC Art 13); to consider the views of children (CRC Art 12); and to provide for effective remedies (CRC Art, ICCPR Art 2(3)).
He then discusses substantive and non-discrimination obligations, noting that States have obligations to take deliberate, concrete and targeted measures to prevent all harmful environmental interference with the full enjoyment of human rights. Whilst States have discretion as to what measures to take, that discretion is restricted with respect to children, since States must ‘adopt and implement special measures of protection, assistance and care for children, and to ensure that the best interests of children are a primary consideration in all actions concerning children’ (CRC Art 3, ICESCR Art 10(3)). Further, due to their vulnerability, States have ‘heightened obligations to take effective measures to protect children from environmental harm. They should make certain that they are protecting children’s rights before they make decisions that may cause environmental harm, including by: collecting and disseminating disaggregated information on the effects of pollution, chemicals and other potentially toxic substances on the health and well-being of children; ensuring that the views of children are taken into account in environmental decision-making; and carrying out children’s rights impact assessments’. They should also regulate private actors including businesses.
Finally, the Special Rapporteur considers the rights of future generations and makes recommendations, including that ‘The Committee on the Rights of the Child should consider adopting a new general comment on children’s rights and the environment’.
The Special Rapporteur’s second report (A/HRC/37/59) presents framework principles on human rights and the environment, addresses the human right to a safe, clean, healthy and sustainable environment and looks ahead to the next steps in the evolving relationship between human rights and the environment.
The 16 Framework Principles set out the obligations of States under human rights law as they relate to the enjoyment of a safe, clean, healthy and sustainable environment. They do not create new obligations, but reflect the application of existing human rights obligations in the environmental context. The Special Rapporteur says the principles are ‘a reflection of actual or emerging international human rights law’, but ‘at a bare minimum, States will see them as best practices that they should move to adopt as expeditiously as possible’. He notes that they are neither comprehensive nor static and will evolve further in the future.
Principles 1 & 2 state that ‘States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights’ and the converse, that States should protect rights in order to ensure a healthy environment, on the basis that human rights and environmental protection are interdependent. The Principles also address non-discrimination, protection of defenders of the environment, States’ obligations with respect to education and public awareness on environmental matters and to collect and disseminate environmental information and provide effective public access to it. Principle 8 describes States’ obligations to require environmental and human rights impact assessments of projects and policies and to provide for and facilitate public participation in decision-making related to the environment and access to effective remedies.
The principles also set out States’ obligations to cooperate with respect to ‘international legal frameworks in order to prevent, reduce and remedy transboundary and global environmental harm that interferes with the full enjoyment of human rights’ and to protect human rights in actions to address environmental challenges and sustainable development. Finally, the Rapporteur underlines that States must pay special attention to those at particular risk from environmental harm and to the rights of indigenous peoples and traditional communities.
In discussing the right to a healthy environment, the Special Rapporteur notes the ‘greening’ of human rights law despite the absence of a human right to a healthy environment at the international level. The majority of countries have recognised this right at the national or regional level, and this has raised the profile and importance of environmental protection, provided a basis for the enactment of stronger environmental laws, helped to provide a safety net to protect against gaps in statutory laws and created opportunities for better access to justice. The Special Rapporteur recommends that the Human Rights Council ‘consider supporting the recognition of the right in a global instrument’.
Finally, the Rapporteur encourages the Council to continue to support the mandate and identifies areas where more work is needed, such as clarifying how human rights norms relating to the environment apply to specific areas, ‘including issues of gender and other types of discrimination, the responsibilities of businesses in relation to human rights and the environment, the effects of armed conflict on human rights and the environment, and obligations of international cooperation in relation to multinational corporations and transboundary harm’.
In addition, the High Commissioner for Human Rights submitted a report to the Council on the Slow onset effects of climate change and human rights protection for cross-border migrants (A/HRC/37/CRP.4). The study was undertaken in collaboration with the Platform on Disaster Displacement (PDD) following an expert meeting in October 2017, and discusses the connection between the slow onset adverse effects of climate change, human rights, and the cross-border movement of people.
The report introduces the links between climate change, human rights, and human mobility and considers the implications slow onset events have for the human rights of affected persons. It also analyses, the international legal landscape for cross-border movement, including protection gaps and state obligations. Case studies are presented to highlight the challenges such movement poses and discusses means to provide protection for those who move in the context of slow onset events, through legal obligations and policy responses. In conclusion, it considers international and regional mechanisms that might respond to these issues and calls for further clarification and recognition of the relationship between these factors and highlights the opportunity to plan and prepare for events and impacts.
A further report on climate change, human rights and migration was submitted to the Council by the OHCHR (A/HRC/37/35). The report provided a summary of the intersessional panel discussion on human rights, climate change, migrants and persons displaced across international borders, held in October 2017. The report was also submitted to the preparatory process leading to the adoption of the global compact for safe, orderly and regular migration and to the work of the Warsaw International Mechanism for Loss and Damage (particularly the Task Force on Displacement) under the UN Framework Convention on Climate Change.
Resolution
The Council adopted its annual resolution on human rights and the environment at this session (A/HRC/RES/37/8). It was presented by the core group of Costa Rica, Maldives, Morocco, Slovenia and Switzerland and was adopted without a vote.
The resolution ‘welcomes’ the work of the Special Rapporteur, the OHCHR and UN Environment on human rights and the environment. It also ‘takes note with appreciation’ of his two reports on children’s rights and the environment and on the ‘Framework Principles. The resolution also renews the mandate of the Special Rapporteur for a further 3 years. The current Special Rapporteur, Mr John Knox will finish his mandate in June 2018 and a new Rapporteur will be appointed at the June session of the Council.
The resolution also requests the Special Rapporteur to host an Expert Seminar on ‘on experience and best practices of States at the national and regional levels with regard to human rights obligations relating to the environment, and on the contribution of relevant actors’ and submit a summary report of the seminar at the 43rd HRC session.
Right to work
The High Commissioner for Human Rights submitted his report on the relationship between the realization of the right to work and the implementation of relevant targets of the Sustainable Development Goals (A/HRC/37/32), pursuant to the mandate in resolution (A/HRC/RES/34/14).
The report discusses a human rights approach to the implementation of the SDGs relevant to the right to work. It explains how the human rights principles of equality and non-discrimination are the foundation of the concept of ‘leaving no one behind’ and discusses the situation with respect to the right to work, of groups such as women, persons with disabilities and migrants in an irregular situation, youth and older persons. It also identifies key human rights issues relevant to the implementation of the right to work and the SDGs: adequate and accessible social security; the informal economy which is characterised by low wages, lack of legal protection and access to social protection (social security, healthcare, pensions etc.) and unsafe workplaces; precarious contracts (associated with low pay, income insecurity and insufficient working hours, despite the obligation of employees to be continuously available for work); occupational health and safety protections (see SDG target 8.8) which have been weakened in the name of deregulation; the importance of trade unions in protection of the right to work and decent working conditions and equality (highlighting the link between strong trade unionism and more equal societies); participation (a fundamental human rights norm which recognizes that stakeholders have a right to participate meaningfully in the development, implementation and monitoring of policies that affect them) and accountability. On accountability, the report urges States to ‘establish a participatory national follow-up and progress review process, which should be based on the relationship between Governments and the people. ….. with broad, multi-stakeholder participation, and should establish benchmarks, review the national policy framework, chart progress, analyse lessons learned, consider solutions…’. It also recommends integrating ‘reports and recommendations of existing human rights review processes, as well as information from existing national mechanisms for oversight and review’ such as national human rights institutions.
Resolution on the right to work
The Council’s annual resolution on the right to work (A/HRC/RES/37/16) was adopted at this session. It appears that the resolution was developed and negotiated without any civil society input or consultation and despite the inclusion of important human rights principles such as non-discrimination and attention to certain marginalised groups, the resolution again included a strong emphasis on economic growth and entrepreneurship as the means for the realisation of the right to work, concepts not grounded in the human right to work.
The resolution ‘Takes note with appreciation’ of the report of the OHCHR on the relationship between the realization of the right to work and the implementation of relevant targets of the Sustainable Development Goals . It reaffirms the rights as set out in Articles 7 and 8 of the ICESCR.
It also recognises the importance of ensuring equality and non-discrimination in access to work and that this ‘is crucial in addressing the social prejudices and disadvantages that might exist in the labour market’.
It repeated important paragraphs on the right to work for women, persons with disabilities and children, from the 2017 resolution, including stating that ‘recognizing that women are on many occasions subject to discrimination in the context of realizing their rights in that regard on an equal basis with men and are disproportionately exposed to the most precarious working conditions, including work in the informal economy, limited or no legal protection, lower levels of representation in leadership and decision-making positions, lower levels of remuneration and involuntary temporary and part-time employment, and are disproportionately burdened with unpaid care and domestic work within the household and the family, which may constitute on many occasions a barrier to women’s greater involvement in the labour market’. On women, the resolution also calls on States to ‘prevent and combat all forms of discrimination and violence, including sexual harassment at the workplace’ and ‘considering investing in infrastructure, services and social protection systems to allow for and to promote equitable sharing of care responsibilities between men and women’.
The resolution also recognised the link between widening inequalities and the right to work and emphasized that ‘full and productive employment and decent work for young people play an important role in their empowerment and can contribute to, inter alia, the prevention of extremism, terrorism and social, economic and political instability, thus contributing to sustainable development and peace’.
Unfortunately, the resolution continued the same emphasis from last year’s resolution that the main means of realising the right to work is through economic growth. For instance it repeated paragraphs from the 2017 resolution:
‘Highlights the vital role of the private sector in generating new investments, job opportunities and financing for development’;
‘Underscores that …… an environment that supports investment, growth and entrepreneurship is essential to the creation of new job opportunities for women and men, and reaffirms that opportunities for all to obtain productive work in conditions of freedom, equity, security and human dignity are essential to ensure the eradication of hunger and poverty, the realization of equality between women and men, the improvement of economic and social well-being for all, the achievement of sustained, inclusive and sustainable economic growth and sustainable development.’
It finishes by asking the High Commissioner to prepare and submit to the Council (at its March 2019 session) a report on ‘the relationship between the realization of the right to work and the enjoyment of all human rights by young people, with an emphasis on their empowerment’.
Cultural rights
The Special Rapporteur in the field of cultural rights, Ms Karima Bennoune, submitted to the Council her annual report (A/HRC/RES/37/55), which focused on how actions in the field of arts and culture can make significant contributions towards creating, developing and maintaining societies in which all human rights are increasingly realized.
The report considers how actions in the field of culture can open a space in which individuals and groups can reflect upon their society, confront and modify their perception of one another, express their fears and grievances in a non-violent manner, develop resilience after violent or traumatic experiences, including human rights violations, and imagine the future they want for themselves and how to better realize human rights in the society they live in. She discusses how such actions can build or rebuild increased social interactions, mutual understanding and trust and how they are essential to achieve a range of human rights goals and to respect cultural diversity.
The Special Rapporteur considers how cultural rights, and other human rights, are exercised through and affected by these actions in the cultural field; the ‘challenges artists and cultural workers face when engaging in initiatives that question the representation of society and seek to address its contemporary challenges of discrimination, exclusion and violence’; the contribution these initiatives make to society; and the responsibilities of State and non-State actors in creating and maintaining the conditions for actions in the field of culture that contribute to achieving societies more respectful of human rights.
The report of the Special Rapporteur’s mission to Serbia and Kosovo was also presented (A/HRC/37/55/Add.1)
Intersessional seminar on cultural rights & the protection of cultural heritage
The OHCHR submitted a report to the Council (A/HRC/37/29) on the expert meeting and intersessional seminar on ‘ways to prevent, contain and/or mitigate the detrimental impact of the damage to or destruction of cultural heritage on the enjoyment of human rights, including cultural rights, by all and on best practices in this regard’, which was held in July 2017 and mandated by resolution 33/20.
The report lists recommendations arising from the seminar in relation to: promotion of pluralism and respect for diversity; institutional, legal and judicial frameworks; conditions for the meaningful engagement of right holders including protection of defenders of cultural rights; preventive measures with respect to the destruction of cultural heritage; armed forces, peacekeeping missions and humanitarian actors; measures to curb illicit trade in cultural property; and recommendations to the UN and to civil society.
Resolutions
The mandate of the Special Rapporteur in the field of cultural rights was renewed for a further 3 years by resolution (A/HRC/RES/37/12) which was adopted without a vote. The Special Rapporteur’s mandate will continue as set out in resolution A/HRC/RES/19/6.
The Council also adopted, without a vote, a new resolution on ‘cultural rights and the protection of cultural heritage’ (A/HRC/RES/37/17). The resolution was presented by Argentina, Cyprus, Ethiopia, Greece, Iraq, Ireland, Italy, Mali, Poland, Serbia, Switzerland.
Following the report of the expert seminar on cultural rights, the resolution focused on the protection of cultural heritage and rights in humanitarian and post-conflict situations. It called on States to recognise ‘the protection of cultural heritage as an important component of humanitarian assistance, including in armed conflict and with regard also to displaced populations’ and for ‘mainstreaming the protection of cultural heritage into humanitarian actions, security strategies and peacebuilding processes, and in post-conflict reconciliation initiatives’.
The Council also called for ‘enhanced international cooperation in preventing and combating the organized looting, smuggling and theft of and illicit trafficking in cultural objects and in restoring stolen, looted or trafficked cultural property to its countries of origin’ and emphasised co-operation, dialogue and partnerships between UNESCO and other relevant international organisations, States, humanitarian organisations and civil society organisations and encouraged a gender-sensitive and inclusive approach that is respectful of cultural diversity.
In addition, it invited States to ‘adopt effective strategies to prevent the destruction of cultural heritage by, inter alia, ensuring accountability documenting the cultural heritage within their jurisdiction, including through digital means, implementing educational programmes on the importance of cultural heritage and cultural rights and training military forces and humanitarian actors in all relevant rules concerning the protection of cultural heritage, both during and in the aftermath of armed conflict’.
The resolution requested the High Commissioner to convene a two-day expert workshop in Geneva ‘to develop appropriate tools for the dissemination of an approach to the protection, restoration and preservation of cultural heritage that promotes universal respect for cultural rights by all’ and submit a report of the workshop to the 46th session of the Council.
SDGs, development and human rights
The link between development and human rights and discussion of the SDGs, continued to be an important theme in reports and meetings of the 37th session of the Human Rights Council.
There were 3 resolutions which specifically addressed the Sustainable Development Agenda and many others that referenced it. Similarly, many reports of the OHCHR and Special Procedures mandate holders discussed the linkages between human rights and the SDGs, particularly in the context of ESC rights, but not only. It is now fair to say that the Sustainable Development Agenda is squarely on the agenda of the Council and significant work has been done to map the linkages between human rights and the SDGs. The more difficult work of operationalising the various commitments to embedding human rights in SDGs implementation, is less developed.
The institutional linkages are also growing with the Secretary-General emphasising the SDGs in his presentation to the Council during the High Level Segment, and with an increasing number of human rights mechanisms and experts participating in the High Level Political Forum (HLPF) in New York. The proposed invitation to the President of the Economic and Social Council to address the Human Rights Council annually about the developments at the HLPF (see resolution A/HRC/RES/37/25 below), could be an interesting initiative in this respect. Nevertheless, the consideration of human rights in relevant development discussions and initiatives remains minimal and patchy depending on the relevant UN agency and countries involved and reports of the HLPF show little evidence of serious consideration of human rights by States or UN agencies involved in SDGs implementation.
Resolutions
A cross-regional group comprising Azerbaijan, Georgia, Kenya, Thailand, Turkey presented a resolution entitled ‘Promoting human rights and Sustainable Development Goals through transparent, accountable and efficient public services delivery’ (A/HRC/RES/37/7). It was adopted without a vote and focuses on the role of government delivered public services for the promotion of human rights and the achievement of the SDGs.
The resolution encouraged States with effective public service delivery models to share their best practices with other States, and ‘calls upon all States to establish…. a transparent, accountable and efficient public service system’ and ‘Underlines the important role of the United Nations Public Service Awards, as the most prominent international recognition of excellence in public service within the United Nations system, in identifying and promoting innovations and new concepts in public administration that minimize the risks for corruption’. It noted with appreciation the UN Public Service Day on 23 June and invited the High Commissioner to celebrate that day each June, ‘with a view to raise awareness about the human rights dimension of public services delivery’.
Another resolution addressed ‘The need for an integrated approach to the implementation of the 2030 Agenda for Sustainable Development for the full realization of human rights, focusing holistically on the means of implementation’ (A/HRC/RES/37/25). This resolution was presented by Algeria, Cuba, Pakistan and South Africa and was adopted without a vote, after oral revisions.
Whilst reaffirming that the Sustainable Development Agenda is grounded in human rights, the resolution seems to emphasise the distinct the role of the HLPF to follow-up on SDGs implementation, noting its ‘mandate to oversee a network of processes for the follow-up to and review of the 2030 Agenda at the global level’.
The other main emphasis of the resolution was the importance of Goal 17 (means of implementation) of the SDGs and the equal importance of Goal 17 with all other Goals. The resolution alluded to the view that Goal 17 is receiving less attention than other SDGs and some States are picking and choosing which Goals they wish to focus on.
The substantive aspect of the resolution invited the President of the Economic and Social Council to brief the Human Rights Council annually on the discussions of the HLPF and ‘gaps, challenges and progress in the implementation of the 2030 Agenda, focusing on the means of implementation taken together as an integrated package’.
A resolution entitled ‘Promotion and protection of human rights and the implementation of the 2030 Agenda for Sustainable Development’ (A/HRC/RES/37/24) was presented by a cross regional group of Azerbaijan, Brazil, Canada, Chile, Denmark, Ecuador, Fiji, Luxembourg, Portugal, Rwanda, Sierra Leone, Thailand, Uruguay and adopted without a vote.
In this resolution the Council decided to organize two one-day intersessional meetings ‘for dialogue and cooperation’ on human rights and the 2030 Agenda, ‘which will provide a space for States, relevant United Nations and regional human rights mechanisms, United Nations agencies, funds and programmes, national human rights institutions and civil society organizations to voluntarily share good practices, achievements, challenges and lessons learned in the promotion and protection of human rights and the implementation of the 2030 Agenda’. The themes of those 2 seminars will follow the themes of the HLPF for 2019 and 2020 respectively and summary reports of the seminars will be presented to the Council and to the respective sessions of the HLPF.
Other initiatives of interest
Right to food
The Special Rapporteur on the right to food presented her annual report to the Council (A/HRC/37/) addressing the right to food in the context of natural disasters. The report discusses direct and indirect impacts of natural disasters on the right to food and people’s livelihoods, how disasters contribute to hunger and what should be done to reduce human rights violations and damage to the environment. The report also underlines the importance of achieving a convergence between emergency food aid, food assistance and development cooperation and of the need to change the common understanding whereby voluntarism is central to humanitarian response efforts.
The Council adopted its annual resolution on the right to food (A/HRC/RES/37/10) after a vote where all member States supported the resolution, except the US (46 – Y, 1- N). Whilst the text was long and substantive, there was no new content since the resolution last year (A/HRC/RES/34/12). Some important text from last year’s resolution was removed, including paragraphs on climate change; the private sector; effective remedies; biodiversity and agricultural practices; and pesticides.
‘Win-win co-operation’
One of the more controversial resolutions at this Council session was presented by China and entitled ‘Promoting mutually beneficial cooperation in the field of human rights’ (A/HRC/RES/37/23). The resolution was the subject of robust negotiation and was eventually adopted after a vote in which only the US voted against, but all of the Western Europe and Other group abstained (28 - Y to 1 - N, 17 – A).
The first draft of the text was entitled ‘Promoting the International Human Rights Cause through Win-Win Cooperation’ and appeared to have little real attachment to human rights. Instead the first draft appeared to be promoting international cooperation and to move away from the human rights principles of universality and accountability, to instead emphasise dialogue over critique. The focus of the final text remained on cooperation and dialogue between States, but ignored the importance of co-operation with international human rights mechanisms and institutions and the critical role of civil society. The text proclaimed that ‘win-win cooperation is the only viable option’ without defining what this new concept means and what it is the only option for.
The resolution begins by affirming all the key human rights principles but includes additional concepts such as:
‘Acknowledging the important role that mutually beneficial cooperation among all relevant stakeholders can play in promoting and protecting all human rights’
‘that international cooperation in the field of human rights, …. makes an effective and practical contribution to preventing violations of human rights and fundamental freedoms and strengthening the capacity of States to comply with their human rights obligations for the benefit of all human beings’.
The resolution promotes dialogue, technical assistance and capacity building and the singles out the State-led, peer review UPR mechanism, which is described as co-operative and based on constructive dialogue. Suggesting a desire to avoid scrutiny, the text ignores other expert-led mechanisms (such as the treaty bodies), other than to invite them to ‘continue to pay attention to the importance of mutually beneficial cooperation in promoting and protecting all human rights’.
Finally, the resolution requests the Human Rights Council Advisory Committee to conduct a study, and report to the Council, ‘on the role of technical assistance and capacity-building in fostering mutually beneficial cooperation in promoting and protecting human rights’.
Civil society and human rights experts advocated for amendments to the resolution in order to underline fundamental human rights principles such as monitoring and accountability, universality, the participation of civil society and the importance of cooperation with the UN human rights mechanisms. See the following examples from:
The final text of the resolution was certainly improved, including by changing the title, but concerns remain about what China intends to achieve with this push towards co-operation and away from scrutiny and accountability and who would be the winners and losers in China’s vision of human rights. It seems that China’s attempts to re-frame the human rights framework away from scrutiny and accountability and towards co-operation, dialogue and impunity, will continue through the report from the Advisory Committee and, presumably, subsequent resolutions.
Business and human rights
The report of the 3rd session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights (A/HRC/37/67) was submitted to the Council at this session. The report summarises the session of the Working Group that took place in October 2017. Two of the key ‘sticking points’ that have plagued the work of the Working Group, continued to get attention at the 3rd session, including in the discussion of the program of work for the session: whether the proposed treaty should apply to national corporations or only transnational corporations; the relationship of the proposed treaty to the Guiding Principles on Business and Human Rights.
The 3rd session involved discussion of a document prepared by the Chair-Rapporteur (Ecuador) setting out the ‘draft elements’ for a legally binding instrument on transnational corporations and other business enterprises with respect to human rights.
In conclusion, the Chair-Rapporteur recommended that: States and stakeholders should submit their comments on the draft elements document by the end of February 2018; he will present a draft legally binding instrument (on the basis of the contributions from States and stakeholders), before the 4th session of the Working Group, for substantive negotiations at the session in 2018.
Foreign debt and ESC rights
The annual resolution on ‘The effects of foreign debt and other related international financial obligations of States on the full enjoyment of all human rights, particularly economic, social and cultural rights’ (A/HRC/RES/37/11) was adopted after a vote which recorded 27 – Yes, 16 – No and 4 – Abstentions and saw all of the Western Europe and Other group States voting against the text.
The resolution took note with appreciation of the Independent Expert’s report and his mapping of human rights impact assessment tools (A/HRC/37/54) and requested him to continue to develop guiding principles for assessing the human rights impact of economic reform policies. It also emphasized: the unsustainable debt burden of the least developed countries and its impact on ESC rights; the importance of debt sustainability and international co-operation in the Sustainable Development Agenda and the relevant commitments in the Addis Ababa Action Agenda; illicit financial flows, tax evasion and avoidance by high net worth individuals and corporations; the impacts of the financial crisis on human rights; inequality and social exclusion; the impact of the debt burden on extreme poverty and as an obstacle to sustainable human development.
In tackling some of the current trends in economic policies across the globe, the Council recognised that ‘more than two thirds of countries across the world are contracting their public purses and limiting, rather than expanding, their fiscal space’ and reaffirmed that ‘responses to the global financial and economic crises should not … be used as an excuse to stop debt relief measures’. Turning to structural adjustment programmes and the obsession of donors and Bretton Woods Institutions with privatisation, the Council stressed that ‘the economic programmes arising from foreign debt relief and cancellation must not reproduce past structural adjustment policies that have not worked, such as dogmatic demands for privatization and reduced public service’ and that ‘fiscal consolidation and economic reform measures should never violate the minimum core content of economic, social and cultural rights, nor be directly or indirectly discriminatory or result in the adoption of impermissible retrogressive measures’, but also recognised that ‘not all efforts to reduce public spending are harmful to human rights’.
The resolution took note of the work of the Advisory Committee on the activities of vulture funds and their impact on human rights, and requested the Committee to submit the final report to the Human Rights Council at its 41st session. It also requested the Independent Expert ‘to continue to explore the interlinkages with trade and other issues, including HIV/AIDS, when examining the impact of structural adjustment and foreign debt’ and to contribute to the follow-up to the ‘International Conference on Financing for Development with a view to bringing to its attention the issue of the effects of structural adjustment and foreign debt on the enjoyment of human rights’.