ESC Rights Update from Geneva: 33rd session of the Human Rights Council (13 to 30 September 2016)
Economic, social and cultural rights at the 33rd session of the UN Human Rights Council 13 September to 30 September 2016
This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 33rd session of the Human Rights Council (September 2016). There were not so many ESC rights specific initiatives at this session, although a number of related initiatives. One theme running through the discussions, reports and resolutions was linking thematic human rights issues with the sustainable development goals (SDGs) and ensuring a human rights based approach to the implementation and monitoring of the SDGs.
It was also interesting to hear the High Commissioner for Human Rights specifically mention ESC rights in his Opening address. He stated:
'Human rights are universal, indivisible and interdependent; if States pick and choose which rights they will uphold, the entire structure is undermined. Yet I am frequently surprised by assertions my Office is insufficiently concerned with economic and social rights. This is a statement often made by representatives of States which have few or no national accountability mechanisms to ensure that economic and social rights are effectively protected – and have adopted no legislative framework to give domestic legal effect to the CESCR. I am convinced civil, political, economic, social and cultural rights, as well as the right to development, can only be effective when they are viewed as mutually supportive. And although there is no one correct model, applying human rights in practice requires that they be addressed as rights – not as neutral commodities or optional policy outcomes. I urge all Member States of this Council to move swiftly to establish the legal frameworks which can ensure implementation and accountability for economic and social rights.'
This Update provides information about:
Rights to water and sanitation
The Special Rapporteur on the right to water and sanitation presented his report on the topic of gender equality (A/HRC/33/49), to the Human Rights Council. It is an important report as it highlights the importance of gender equality in the context of the rights to water and sanitation, explains its meaning and pulls together much of the work on gender equality undertaken by the successive mandate holders. The report explores women and men’s different access, use, experiences and knowledge of water, sanitation and hygiene. It shows how cultural, social, economic and biological differences between women and men consistently lead to unequal opportunities for women in the enjoyment of the rights to water and sanitation, and impacts on other human rights, such as health, housing, education and food, and to gender equality more generally.
The Special Rapporteur underlines the importance of focusing ‘on the needs of women and girls at all times, throughout their whole lifecycle, and of not overlooking the needs of women and girls with disabilities, living in poverty or suffering from other disadvantages’.
He also highlights the need for ‘concerted efforts in meeting women’s material needs, such as access to affordable menstrual products, as well as their strategic needs, such as tackling harmful gender stereotypes and structural determinants of inequalities that affect access to water, sanitation and hygiene’. The Special Rapporteur takes a broad definition of gender equality emphasising that it includes the rights and experiences of transgender and gender non-conforming people. He notes that transgender and gender non-conforming people also experience discrimination in the realisation of their rights to water and sanitation, and states:
‘Water and sanitation facilities must be safe, available, accessible, affordable, socially and culturally acceptable, provide privacy and ensure dignity for all individuals, including those who are transgender and gender non-conforming.’
He discusses intersectionality and the impact of multiple forms of discrimination, such as where women also are living in poverty, with a disability, suffer from incontinence, live in remote areas, lack security of tenure, are imprisoned or are homeless.
The Special Rapporteur calls for a transformative approach which addresses the ‘root causes of inequalities and the dismantling of structural barriers, taboos, stereotypes and social norms that prevent the equal enjoyment of rights on the basis of gender.’ He underlines that it is necessary to challenge social norms, stereotypes and intra-household patterns, while also promoting gender-responsive interventions that prioritize the implementation of women’s specific needs. In terms of gender stereotyping, he urges: ‘States cannot dismiss stereotyping and stigma as a social phenomenon over which States have no influence; instead, they must actively combat practices that are based on harmful stereotypes of men and women, including in the private sphere’.
For instance, he discusses sociocultural norms about ‘feminine modesty’ and stigma and taboo surrounding female menstruation, as examples of how gender stereotyping impacts on women’s rights to water and sanitation, as well as many other human rights. He also discusses gender-based violence that women fear in accessing public toilets and open defecation sites and that trans-gender people face when accessing gender-segregated sanitation facilities.
Resolution
The annual resolution on the right to water and sanitation was adopted at this session (A/HRC/RES/33/10) by vote of 42 for and 1 against (Kyrgyzstan). Spain and Germany were the main proponents of the resolution. Kyrgyzstan proposed an amendment which attempted to limit the scope of state obligations to the realization of the rights ‘within the states’ and ‘on their own territories’. The amendment was rejected and the resolution passed easily.
The resolution begins by reaffirming the important advances in the normative content of the rights, thereby solidifying the recognition in international law of distinct legal rights to water and to sanitation and also the elements of those rights.
For instance, the operative paragraphs begin by welcoming ‘the recognition by the General Assembly of the human rights to safe drinking water and sanitation as components of the right to an adequate standard of living and essential for the full enjoyment of the right to life and all human rights’. It goes on to reaffirm the General Assembly’s recognition of the elements of the right to safe drinking water: ‘without discrimination, to have access to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic use…’ and the elements of the right to sanitation: ‘physical and affordable access to sanitation, in all spheres of life, that is safe, hygienic, secure, socially and culturally acceptable and that provides privacy and ensures dignity….’[1]
The resolution then follows the theme of the Special Rapporteur’s report, by calling on States to take action to eliminate gender inequality in the realization of the rights to water and sanitation, for instance by:
reforming laws that have direct and indirect discriminatory consequences;
tackling systemic inequalities and achieving substantive gender equality, including through targeted gender-responsive policies, budgets and measures;
preventing and combating root causes of gender inequalities, such as social norms, stereotypes, roles and taboos with regard to both women and men, through public campaigns, education and the media;
using an ‘intersectionality lens’ in policy initiatives; and
enabling the meaningful participation of women and girls at all stages of planning, decision-making, implementation, monitoring and evaluation.[2]
Finally, the resolution extends the mandate of the Special Rapporteur for another 3 years and: ‘Encourages the Special Rapporteur to continue to contribute to the implementation of the 2030 Agenda for Sustainable Development, in particular Goal 6 ….’.
An unofficial summary of the Interactive Dialogue with the Special Rapporteur on water and sanitation is HERE. GIESCR’s Oral Statement for the Interactive Dialogue is HERE.
A/HRC/33/10 paragraph 2
A/HRC/33/10 paragraph 9
Right to health
The Council adopted a resolution on ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health’ (A/HRC/33/9). The resolution is short and does not address a thematic topic. It merely extends the mandate of the Special Rapporteur and takes note of his report to the previous session of the Human Rights Council.
In addition, as is increasingly occurring with the ESC rights resolutions of the Council, the mandate holder is ‘encouraged’ to align his work with the SDGs:
‘…in fulfilling the mandate, to submit proposals that could support the implementation of the health-related Sustainable Development Goals and targets.’
Cultural rights
The Human Rights Council adopted a resolution on cultural rights and the protection of cultural heritage (A/HRC/RES/33/20). The resolution’s main sponsors were Cyprus, Ethiopia, Greece, Iraq, Ireland, Mali, Poland, Serbia and Switzerland. It was adopted without a vote after an oral amendment by Russia and Venezuela attempting to remove the references to ‘human rights defenders’ and replace it with ‘those involved in the protection of cultural heritage’, was defeated.
The resolution:
urges all parties to armed conflicts to refrain from any unlawful military use or targeting of cultural property, in conformity with their international humanitarian law obligations;
calls for enhanced international cooperation in preventing and combating the organized looting, smuggling, theft and illicit trafficking of cultural objects and in restoring the cultural property to its countries of origin;
calls for the development of partnerships between national authorities and civil society, with the aim of enhancing the protection of cultural rights and for the identification of best practices for the prevention of violations of cultural rights and of damage caused to cultural heritage, both tangible or intangible; and
calls for the recognition of cultural heritage protection as an important component of humanitarian assistance, including in armed conflict and vis-a-vis displaced populations.
The resolution also encourages States to adopt a gender-sensitive approach to the protection of cultural heritage and rights and calls for the protection of cultural rights defenders.[1]
In relation to the destruction of cultural heritage, it calls on States to adopt strategies, including documenting cultural heritage, implementing educational programmes on the importance of cultural heritage and rights and training military forces concerning the protection of cultural heritage, both during and in the aftermath of armed conflict. In this respect, the Council also encouraged States to ‘consider implementing the recommendations on intentional destruction of cultural heritage made by the Special Rapporteur in the field of cultural rights in her reports presented to the Human Rights Council and to the General Assembly.’[2][3
Finally, the Council requests the OHCHR to ‘convene a one-day 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…’ and prepare a summary report.
A/HRC/RES/33/20, OP 9 & 10.
See A/71/317
A/HRC/RES/33/20, OP 12
A/HRC/RES/33/20, OP 13
Maternal mortality and morbidity
Pursuant to the request in resolution A/HRC/RES/27/11, the OHCHR submitted a report on ‘Follow-up on the application of the technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity’ (A/HRC/33/24).
The report provides details of various initiatives related to the implementation of the technical guidance on the application of a human rights-based approach to the implementation of policies and programmes to reduce preventable maternal mortality and morbidity (the Guidance). It discusses progress in the dissemination of the Guidance, national initiatives and NGO law reform advocacy utilizing the Guidance and legislative reforms aligning national laws with the Guidance. It also provides examples of the Guidance being used in government planning and budgeting, training of health care workers and in monitoring and review processes.
The report also contains a very useful and interesting discussion of the importance of ensuring a human rights based approach to preventable maternal mortality and morbidity in the implementation of the SDGs, including consideration of human rights-sensitive indicators and a human rights-based approach to the collection, production, analysis and dissemination of data.
The report insists that accountability must be at the heart of a rights-based approach and not an afterthought once a violation has occurred. In the context of the SDGs, the report recommends that the country and thematic reviews to be undertaken by the high-level political forum on sustainable development should systematically draw upon information and recommendations from the UN human rights mechanisms, ensuring that implementation of the 2030 Agenda is consistent with binding human rights obligations. Such reviews should also include review of the actions of private actors, such as private hospitals and pharmaceutical companies.
Finally, the report annexes a very useful table containing ‘Indicators for assessing compliance with human rights obligations, especially related to sexual and reproductive health and rights’. The table lists the elements of the core content of the right to sexual and reproductive health as described in the CESCR’s General Comment No. 22 (2016) on sexual and reproductive health, and, in respect of each element, offers numerous indicators for determining whether it has been complied with.
Resolution
The Council adopted a resolution on preventable maternal mortality and morbidity and human rights (A/HRC/RES/33/18). The resolution is often considered sensitive and sometimes controversial, particularly given its link to women’s sexual and reproductive health and rights. For example, paragraphs that raised sensitive issues for some States include:
‘reaffirming that the human rights of women include a woman’s right to have control over, and to decide freely and responsibly on, matters related to her sexuality, including sexual and reproductive health, free of coercion, discrimination and violence, and that equal relationships between women and men in matters of sexual relations and reproduction, including full respect for the integrity of the person, require mutual respect, consent and shared responsibility for sexual behaviour and its consequences’[1]; and
‘regretting the multitude of factors that can lead to maternal mortality and morbidity, including lack of accessible and appropriate health-care services, information and education, lack of access to emergency obstetric care, poverty, all types of malnutrition, harmful practices, including child, early and forced marriage and female genital mutilation, denial of contraception, unsafe abortion, discrimination against women, gender inequality and gender-based stereotypes’.[2]
Some of these sensitivities were reflected in Russia’s proposal of 14 amendments to the text, 5 of which were voted on and succeeded and 9 of which were withdrawn. Eventually the text was adopted without a vote after oral revisions reflecting the majority of the Russian revisions. The revisions mainly removed references to a ‘right to sexual and reproductive health’ and ‘sexual and reproductive rights’ and referred instead to the right to health, including sexual and reproductive health as an integral part of this right.[3] The revisions also removed the encouragement for States to adopt the recommendations of the OHCHR follow-up report.
Nevertheless, overall the text remains strong, including for instance the acknowledgment that:
'the failure to prevent maternal mortality and morbidity is one of the most significant barriers to the empowerment of women and girls in all aspects of life, the full enjoyment of their human rights, their ability to reach their full potential and to sustainable development...'[4]
The operative paragraphs urge States to renew their political commitment to eliminate preventable maternal mortality and morbidity, including through development partnerships and international assistance and cooperation arrangements which should be undertaken using a human-rights based approach. The text also urges States to ensure the availability of effective accountability and monitoring mechanisms and access to justice for women[5] and addresses:
‘interlinked causes of maternal mortality and morbidity, such as lack of accessible, affordable and appropriate health-care services for all, and of information and education, poverty, all types of malnutrition, harmful practices, including child, early and forced marriage and female genital mutilation, early childbearing, gender inequalities and all forms of discrimination and violence against women, and to pay particular attention to eliminating all forms of violence against women and girls, especially adolescent girls, while ensuring the meaningful and effective participation of women and girls …’.[6]
The resolution also ‘encourages States to consider using general comment No. 22 (2016) of the Committee on Economic, Social and Cultural Rights’ in their efforts to reduce preventable maternal mortality and morbidity.[7] Unfortunately references to the SDGs in 2 paragraphs were deleted in the oral amendments to the resolution.
The Council also takes note of the OHCHR report mentioned above and decides to convene, at its 34th session, a panel discussion on the linkages between the SDGs relating to preventable maternal mortality and morbidity and sexual and reproductive health and rights, and requests the OHCHR to prepare a summary report.[8]
Finally, it requests the High Commissioner to present to the Council at its 39th session, a follow-up report on good practices and challenges in the application of a human rights-based approach to the elimination of preventable maternal mortality and morbidity, including through the utilization of the Guidance.[9]
A/HRC/RES/33/18, PP 13 and see also OP 4
A/HRC/RES/33/18, PP 20
Eg : PP3, PP6, PP10, PP19
A/HRC/RES/33/18, PP 23
A/HRC/RES/33/18, OP 9
A/HRC/RES/33/18, OP 3
A/HRC/RES/33/18, OP 8
A/HRC/RES/33/18, OP 11
A/HRC/RES/33/18, OP 12
Other initiatives of interest:
On 26 September the Human Rights Council held is annual discussion on the ‘Integration of a gender perspective throughout the work of the Council and its mechanisms’, which focused on gender integration in the resolutions and recommendations of the Council. GIESCR’s Joint Oral Statement made during the discussion, which addresses gender balance on UN human rights bodies and mechanisms is HERE. An unofficial summary of the Panel Discussion is HERE.
The Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes (A/HRC/33/41), presented his report at this session, together with his mission reports on the Republic of Korea and Germany. The report discusses the impacts of toxics and pollution on children’s rights, and the obligations of States and responsibilities of businesses in preventing exposure by children to such substances.
The Special Rapporteur on contemporary forms of slavery, including its causes and consequences presented her report to the Council on debt bondage (A/HRC/33/46). The report outlines the legal definition of debt bondage and the trends in different regions. It explains:
'People enter the status or condition of debt bondage when their labour, or the labour of a third party under their control, is demanded as repayment of a loan or of money given in advance, and the value of their labour is not applied towards the liquidation of the debt or the length of the service is not limited and/or the nature of the service is not defined. Consequently, bonded labourers are often trapped into working for very little remuneration, or in some cases none, to repay the loan or advance, even though the value of their labour exceeds that sum of money'.
The Special Rapporteur discusses how debt bondage is closely related to a number of forms of exploitation, including forced labour, the abuse of migrant workers, trafficking, and the worst forms of child labour. She notes that it is a global problem disproportionately impacting ‘vulnerable people’, such as ‘those belonging to minority groups, indigenous people, women, children, people determined as being of low caste, and migrant workers’ and that ‘many victims of debt bondage face multiple and intersecting sources of discrimination which make them vulnerable to exploitation and abuse’.
In considering the key drivers for debt bondage, the Special Rapporteur highlights poverty, lack of decent work, lack of access to land, lack of affordable health care and barriers to education. She also discusses how discrimination is a common theme and ‘significantly increases their vulnerability to debt bondage and at the same time limits their opportunities for escaping such abuse’. The Special Rapporteur also considers the challenges for addressing the problem of debt bondage, including: lack of measures to address underlying causes, such as poverty and lack of decent work; lack of access to justice; and corruption.
Finally, the Special Rapporteur promotes a human rights-based approach to the full eradication and prevention of debt bondage & provides recommendations for Member States.
The Council also adopted a resolution which renewed the mandate for a further 3 years of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences (A/HRC/33/1). It encourages the Special Rapporteur:
‘to compile and analyse examples of national legislation relating to the prohibition of slavery and slavery-like practices in order to assist States in their national efforts to combat contemporary forms of slavery.'
It also requests the Special Rapporteur to advise:
‘States, intergovernmental organizations, civil society and other stakeholders on the effective respect, protection and fulfilment of human rights of those affected by contemporary forms of slavery in the implementation of the 2030 Agenda, and to undertake thematic research on the effective implementation of Goal 8, with a particular focus on target 8.7.’