March 2017

The Committee on Economic, Social and Cultural Rights (CESCR) held its 60th session from 20 to 24 February 2017. This Update provides a summary of the meetings and key developments.This session was unusual because it was only for one week and no State dialogues were scheduled.  Therefore, much of the Committee’s session was held in private in order to discuss thematic issues, working methods, non-reporting States, proposed General Comments and Communications under the OP-ICESCR. During its opening meeting, the Committee held a minute of silence in honour of the recently deceased Sir Nigel Rodley, former member and Chairperson of the Human Rights Committee and Arundhati Ghose, former member of CESCR.

Committee membership and office holders Three new members of the Committee commenced their terms this session: Ms Sandra Leibenberg (South Africa) Ms Laura-Maria Craciunean-Tatu (Romania) Mr Michael Windfuhr (Germany)

The Chairpersonship of Mr Waleed Sadi came to an end and the Committee elected Ms Virginia Bras Gomes (Portugal) to the Chair. A new Bureau was also elected, consisting of: Ms Heisoo Shin (Republic of Korea), Mr Zdzislaw Kedzia (Poland) and Mr Mohamed Ezzeldin Abdel-Moneim (Egypt) as Vice Chairs of the Committee, and Lydia Carmelita Ravenberg (Suriname) as the Rapporteur of the Committee. A new working group on communications was also determined.

State Reporting Procedure During the ‘pre-session’ (27 February - 3 March) the Committee considered Lists of Issues for the following States: Colombia, Mexico, Republic of Korea, Republic of Moldova, Russian Federation The Committee has published Lists of Issues for these States HERE. The dialogue for each of these States will be held at the 62nd Session (18 September – 6 October 2017).

Follow up At this session the Committee agreed to a new follow up procedure which will commence operation in the 61st session in June. Additional information about the new procedure will be made available in June.

Overdue and non-reporting States There are 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. To address this issue the Committee held a private meeting with non-reporting States on 23 February 2017 and nine States participated in this meeting.

One outcome of the meeting was that where a State submits a long overdue initial report, it will be offered a dialogue as soon as possible after the report is submitted and without the need for a List of Issues or Replies. The Committee is conscious of ensuring that, in these circumstances, there is sufficient time for civil society to participate in the process.

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.

Another useful resource which provides the reporting status for each State for all human rights treaties can be found HERE.

Thematic areas of work

ESC rights in the context of business activities. The Committee held its ‘Day of Discussion’ on ‘the Draft General Comment on State Obligations under the International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities’ on 21 February 2017. The Day of Discussion was open to all stakeholders and the level of participation was very high with over 100 participants, including 19 States and the European Union, national human rights institutions, civil society organizations, trade unions, corporate lawyers, human rights lawyers, researchers and academics.

Our blog on the Day of Discussion can be found HERE. More information about the Day of Discussion is available HERE.

Refugees and Migrants The Committee adopted a Public Statement on ‘The Duties of States Towards Refugees and Migrants under the International Covenant on Economic, Social and Cultural Rights’ (E/C.12/2017/1).

The Statement provides clear and concise guidance to States on their duties under the ICESCR towards refugees, asylum seekers and migrants. It confirms that States’ obligations apply to ‘all persons under its jurisdiction’ which includes refugees, asylum seekers and migrants, including those in an irregular situation (ie. documented and undocumented migrants).

The Committee highlights that States have immediate obligations to ensure that their measures to realise Covenant rights do not discriminate on the grounds of nationality or legal status and that any distinction, exclusion, restriction or preference or other differential treatment on those grounds must be in accordance with the law, pursue a legitimate aim and be proportionate to the aim pursued. A lack of available resources is not a sufficient justification for discriminatory treatment and the non-discrimination obligations require States to pay specific attention to the practical obstacles faced by vulnerable groups, such as asylum seekers and migrants.

The Committee notes the exception set out in Article 2(3) of the Covenant which permits developing countries to determine to what extent they will guarantee the economic rights recognised in the Covenant to non-nationals. This applies only to developing countries and only to ‘economic rights’ such as access to employment and does not relate, for example, to the right of each child to education, which should be recognised independently of nationality or the legal status of her or his parents.

The Committee explains also that the essential minimum content of each right must be ensured to all people under the ‘State’s effective control, without exception’ and, importantly, States ‘would not, in principle, be justified in restricting the enjoyment of the essential content of the Covenant rights on the basis of a lack of resources, even when confronted with a sudden and quantitatively significant flow of refugees.’ It stresses that ‘core obligations are non-derogable, they continue to exist in situations of conflict, emergency and natural disaster.’

The Committee also underlines the specific vulnerability of undocumented migrants, who often lack the documentation necessary to access social services and whose irregular legal status and the fear of being deported inhibits their access to services and willingness to complain, for instance, about mistreatment at work. The Statement then steps through the obligations and some of the common challenges with respect to health, work, housing and social security rights, emphasising that any restrictions on access to these services/rights should be reasonable and proportionate.

The importance of data collection regarding refugees, asylum seekers and migrants, to aid policy and strategy development and service provision, is also highlighted in the Statement. Finally, the Committee recalls the obligations of international co-operation and notes the importance of these obligations in the context of a sudden influx of refugees and migrants and states that it sees: ‘any measure that States parties adopt to support the realisation of the rights of the Covenant on the territory of other States as contributing to the aims of the Covenant.’

Proposed General Comments The Committee discussed in private a proposed General Comment on article 15 and one on economic, social and cultural rights, development and the environment. It also considered and accepted a proposal to commence the elaboration of a new General Comment related to land and economic, social and cultural rights.

Communications under the OP-ICESCR The Committee considered two Communications during this session and found both inadmissible. This continues the trend of a high number of inadmissible Communications. The decisions will be published in the coming weeks.

Practical matters During the May/June 2017 session there will be a change of practice in respect of the time for NGOs to brief the Committee.  The convention has been for this briefing to occur on the Monday morning of the week during which the relevant State dialogue is scheduled.  However, instead, the NGO briefings will be held:

Monday 29 May 15:00    - For NGO briefings on Australia, Uruguay & Netherlands Tuesday 6 June 15:00    - For NGO briefings on Liechtenstein & Sri Lanka Monday 12 June 10:00   - For NGO briefings on Pakistan

The deadline for NGO reports for the Pre-sessions has changed.  NGO reports will now be due 8 weeks (but preferably 10 weeks) before the start of the Pre-session. Therefore, for the next Pre-session (9 October – 12 October 2017 – Argentina, Germany & Turkmenistan) the deadline for NGO reports is 14 August 2017.

Next session

The sixty-first session of the Committee will be held from 29 May to 23 June 2017 during which the Committee will consider the reports of:

Australia (30 & 31 May) Liechtenstein (7 & 8 June) Netherlands (1 & 2 June) Pakistan (12, 13 & 14 June) Sri Lanka (8 & 9 June) Uruguay (31 May & 1 June)

The Programme of Work for the 61st session (including the schedule of Dialogues) is HERE.

The deadline for civil society reports/submissions in respect of the review of these countries is 18 April 2017 (preferable), but 5 May at the latest.

For those intending to attend the session, accreditation requests must be submitted to the CESCR Secretariat (cescr@ohchr.org) at least 10 days prior to the start of the session.

There will be no Pre-sessional Working Group meeting at this session.