Monitoring Compliance with the Universal Bill of Human Rights: The Committee on Economic Social and Cultural Rights. A Guide for NGO Practitioners

                          Shant Melkonian 

   

                           16 Sep 2018

This chapter was written as part of the author's graduation project for his MA in International Law and the Settlement of Disputes at the UN University for Peace in Costa Rica. Also see UDHR, The Human Rights Committee and Other Human Rights Treaties.

The Committee on Economic, Social, and Cultural Rights (The Committee),  is the body of independent experts, acting in their own capacity, that monitors the implementation of International Covenant on Economic, Social, and Cultural Rights (ICESCR) by its State Parties. Unlike the International Covenant on Civil and Political Rights (ICCPR), the ICESCR does not make a provision for the establishment of a treaty body. Instead, various responsibilities for the supervision of its implementation are entrusted to the United Nations Economic and Social Council (ECOSOC).[1]  In 1985, ECOSOC created the Committee on Economic, Social, and Cultural Rights (Resolution 1985/17 of may 28, 1985) , and entrusted to it the task of assisting it in the monitoring of implementation of the Covenant, primarily by the means of the examination of periodic reports submitted by States Parties.[2]

 

Before the creation of the Committee, the reports on the measures taken and the progress made in achieving the observance of the Covenant rights submitted by the State Parties under Article 16 of the ICESCR were considered by a Working Group of Governmental Experts established under the  auspices of the ECOSOC.[3] The record of this Working Group in examining State reports was a dismal one. The main criticism directed at the Working Group was due to the politicised nature of its discussions, since the Group was composed of governmental experts, not of independent experts. Moreover, the group failed to establish standards for the evaluation of State reports.[4]  

 

Hence, due to the unsatisfactory situation, the ECOSOC created the Committee to supervise the monitoring of the implementation of the Covenant. The Committee is a subsidiary body of the ECOSOC. The Committee began its work in 1987.[5] "All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Covenant and thereafter every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”".[6] Moreover, in addition to the reporting procedure, the Optional Protocol to the ICESCR provides the Committee with the competence of receiving and considering communications from individuals or groups of individuals claiming violations of their fundamental rights under the Covenant. The Committee can also undertake, in certain circumstances, inquires on grave and systematic violations of the economic, social, and cultural rights, and can consider inter-state complaints.[7] The Committee also publishes its interpretation of the Covenant Provisions, known as General Comments.[8]

The composition of the Committee is based on Geographical distribution. The members should be persons of high moral character and have a recognised competence in the field of human rights.[9] The committee is composed of 18 members, elected by ECOSOC from a list of candidates submitted by the States Parties for terms of four years. Members serve in their private capacities, and make a solemn declaration of impartiality upon taking up the office.[10] This is a significant improvement from the composition of the Working Group. Members are also eligible for re-election.[11] The Committee has not been free form some criticism as well. For example, in 2008, the majority of the members of the Committee had a legal background. This fact was subjected to criticism, with commentators rightly calling for more experts on economic, health, social and educational matters to be considered for membership in the Committee.[12] The Committee meets in Geneva and normally holds  two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group.[13] Secretariat services are provided by the United Nations Office of the High Commissioner.[14]

 

The Committee places great importance on developing its working relationship with Non-Governmental organizations (NGOs), and has developed innovative working practices to facilitate the effective flow of information.[15] NGOs in a consultative status with ECOSOC have a particularly strong position, in the sense that they benefit from their official status before the body and its subsidiary organs, such as the Committee.[16] Four of the activities of the Committee are of interest for NGOs: the reporting procedure, the occasional missions undertaken by Committee members and the drafting of General Comments. NGOs may also be able to obtain exceptional action by the Committee  when a situation so warrants.[17]

 

- The Reporting Procedure

 

Obligation of the States: Under Article 16 of the Covenant, "The States Parties to the present Covenant undertake to submit in conformity with this part of the Covenant reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized herein".[18] Hence, State Parties of the Covenant have to submit reports to the Committee. Furthermore, Article 17 indicates that reports may indicate factors and difficulties affecting the degree of the fulfilment of the obligations.[19]  

 

The Covenant itself did not provide the periodicity for the reports. However, it was established in 1988 that the initial reports must be submitted within two years of the Covenant coming into force for a state and thereafter every five years.[20] This said, the Committee can or may reduce the five-year period on the basis of certain criteria, such as: the timelines of the State Party's submission of its periodic reports, the quality of all information submitted by the State, the quality of the dialogue between the Committee and the State, the adequacy of the State response to the Committee's concluding observations, and the State's actual record regarding the implementation of the Covenant.[21]

 

The seven objectives of the reporting process is outlined in the General Comment 1 (1989) of the Committee. The objectives are: (1) facilitation of a comprehensive review by a State of its rules, procedure and practice in implementing the Covenant, (2) ensuring the ongoing monitoring by a State of the actual implementation to all beneficiaries of the rights of the Covenant, (3) allowing a State to demonstrate the extent to which it has developed policies and programmes to progressively implement the Covenant, (4) facilitation of  public scrutiny of relevant government policies, (5) it can be used as a provision, on which basis a State, together with the Committee can evaluate effectively the extent to which progress has been made towards realisation of the obligation in the Covenant, (6) identification of factors and difficulties inhibiting the implementation of the Covenant,  and (7) enabling the Committee and the State Parties to facilitate the exchange of information among States, hence encouraging a better understanding of the problems common in nature faced by the States, and develop correct and right responses to it.[22]

 

The content of both the initial and subsequent reports are outlined in the "Guidelines on Treaty-Specific Documents to be Submitted by States Parties Under Articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights". The Guidelines proceed article by article, and indicate information that should be provided, and precise questions that should be answered. States have the obligation to describe the actual situation, provide details about the array of problems, give their opinion as to the causes of problems and show a commitment to change, and a programme that would give effect to that commitment.[23]   

 

The Procedure:  When reports are submitted, it can take up to two years until it is taken up by the Committee. The reports that will be considered by the Committee are decided two sessions in advance, and the information is published in the reports of the Committee and the Office of the High Commissioner of Human Rights (OHCHR) website.[24] The precise timetable for the consideration of the reports by the Committee is available three months before a session, and this information is also posted in the OHCHR website. Reports are usually available in all of the working languages of the Committee (English, French, Spanish, and Russian) and are posted on the OHCHR website.[25]

 

The periodic reports are first discussed by a five-member Working Group of the Committee, which is composed of five members of the Committee nominated by the Chairperson.[26] The Working Group meets in unreported and closed meetings at the end of each session, and considers reports scheduled for consideration at the coming session. The purpose of the consideration is to identify in advance the questions that will constitute the principle focus of the dialogue with the representatives of the State parties. The aim is to increase the efficiency of the system. Then, the Working Group prepares a list of issues for transmission to the State Parties, with a request for written replies to be submitted in advance of the session to enable the replies to be translated and made available to all members of the Committee.[27]

 

In addition to the task of formulating the list of issues, the Working Group is entrusted with a variety of other tasks designed to facilitate the work of the Committee. They include: discussing the most appropriate allocation of time for the consideration of each State report, considering the issue of how best to respond to supplementary reports containing additional information, examining draft general comments, considering how best to structure the day of general discussion, and other relevant matters.[28]

 

To aid in its task, the Working Group has before it, regarding each State report, a draft list of issues drawn up by a member serving as a "Country Rapporteur," together with a "country profile" prepared by the Secretariat. "Country profiles" may include reference to material provided by a wide range of information sources, including intergovernmental organizations, and NGOs. While States are not present at the meetings of the Working Group, NGOs may be invited to provide information orally.[29]

 

- Consideration by the Committee

 

Reports are considered by the Committee in public session and in dialogue with the representatives of the State, usually over the course of three meetings, each of three hours duration.[30] The Committee engages in what is called "constructive" dialogue with the representatives of the State whose periodic report is subject to examination.[31] The following procedure is generally observed: the representative of the State is invited to introduce the report by making brief introductory comments and providing any new information that may be relevant to the dialogue. As mentioned, there are specific guidelines that should be followed in preparing the State reports. For example, on the right to adequate food, a government should provide information whether hunger or/and malnutrition exists in a country, with specific attention for the situation of vulnerable groups, such as the urban poor, children, women, and elderly people.[32] The Committee then considers the report by clusters of articles (usually Articles 1 to 5, 6 to 9, 10 to 12, and 13 to 15), taking particular account of the replies furnished in response to the list of issues.[33] Afterwards, The Chairperson invites questions or comments from Committee members in relation to each issue and then invites the representatives of the State party to reply.[34]

 

The dialogue is an oral exchange of views between members of the Committee and the representative of the State. This exchange of views is not meant to be confrontational, but rather to assist a State Party to better implement the Covenant rights.[35] The examination of the State reports concludes with the adoption of the Concluding Observations by the Committee. For this purpose, The Committee starts a brief period of closed session after the conclusion of the dialogue to enable its members to express their preliminary views. The Country rapporteur prepares a draft set of Concluding Observations to be considered by the Committee, who discusses the draft with a view to adopting it by consensus.[36]

 

The Concluding Observations contain an assessment of the progress and the obstacles encountered by the State party in realizing the rights. The document mentions the positive developments, the principle issues of concern and suggestions and recommendations aimed at a better implementation of the Covenant provisions. It may deal with policy issues, as well as legislative ones. Through the Concluding Observations, the Committee has contributed in the strengthening of the State parties accountability for their acts and omissions in the areas of implementation of the Covenant rights. However, it is rightly argued that the reporting procedure is a relatively weak mechanism, based on persuasion and lobbying and its recommendations are non-enforceable.[37]

 

The Optional Protocol to the ICESCR, adopted in 2008, entered into force in 2013. It provides the Committee with the competence to receive individual complaints, to undertake inquires, and to consider inter-State complaints.[38] Currently, there are 23 State parties to the Optional Protocol.[39]

 

- Individual Complaints

 

Article 1 of the Optional Protocol gives the Committee the competence to receive communications, while Article 2 mentions the communication may be submitted  "by or on behalf of individuals or groups of individuals, under the jurisdiction of a State Party, claiming to be victims of a violation of any of the economic, social and cultural rights set forth in the Covenant by that State Party".[40] Article 3 states when the communications cannot be admissible for consideration by the Committee: (1) if domestic or local remedies are not exhausted, (2) if "it is not submitted within one year after the exhaustion of domestic remedies, except in cases where the author can demonstrate that it had not been possible to submit the communication within that time limit," (3) if "the facts that are the subject of the communication occurred prior to the entry into force of the present Protocol for the State Party", (4) if "the same matter has already been examined by the Committee or has been or is being examined under another procedure of international investigation or settlement", and finally (6) if "it is incompatible with the provisions of the Covenant".[41] Also, the Committee may decline to consider a communication if it is revealed that the individual or the group of individuals did not suffer any disadvantage (Article 4).[42]

 

Once found admissible, the Committee holds closed meetings to examine the communication. During the examination of the communication,. the Committee can consult "relevant documentation emanating from other United Nations bodies, specialised agencies, funds, programmes and mechanisms, and other international organisations, including from regional human rights systems, and any observations or comments by the State Party concerned."[43]

Here an important question arises. What information should be provided in the complaint or the communication to the Committee? The complaint should provide basic personal information, such as the alleged victim’s name, nationality, date of birth, mailing address and email address, and specify the State Party against which the complaint is made. If a complaint is brought on behalf of another person, proof of his/her consent should be provided, or otherwise, the author of the complaint should explain the reason why such a proof cannot be provided. If there are matters of private and personal matters that might emerge in the complaint, the author may request the Committee not to disclose the name of the alleged victim. Also, the Committee in its own discretion, may decide not to disclose the names or other matters  in the course of consideration of the complaint.[44]

 

The final decisions of the Committee are made public. if complainants wish their identity not to be disclosed in the final decision, they are requested to so indicate as soon as possible. Also, any changes in the addresses or other contact information should be brought to the notice of the Committee as soon as possible.[45]

 

It is also important to set out in chronological order all the facts which are relevant to the complaint, and the account should be as complete as possible. The complainant should also state why he/she considers that the facts described constitute a violation of the treaty in question. It is also advisable to set out in the complaint form, the treaty rights which are alleged to be violated, and to mention the remedies that the complainant is seeking. The complainant should also set out the steps taken to exhaust the local remedies available in the State party, especially the administrative and judicial decisions issued by the local authorities. f these documents are not in an official language of the United Nations, a full or summary translation of the documents must be submitted. The documents should be listed in order by date, numbered consecutively and accompanied by a concise description of their contents. The complaint should not exceed 50 pages (excluding annexes). When it exceeds 20 pages, it should also include a short summary of up to five pages highlighting its main elements. As noted above, the information must be provided in one of the UN languages.[46]

 

If the complaint lacks essential information, which is needed for the Committee to proceed on the case, the complainant will be contacted by the secretariat of the OHCHR, who will request additional information. The complainants should be thorough in conducting correspondence with the secretariat, and any requested information should be sent no more than one year after the request for them has been made. If not sent within one year, the file will be closed.[47]

 

Moreover, the Optional Protocol provides the Committee with the ability to issue a request of "interim measures as may be necessary in exceptional circumstances to avoid possible irreparable damage to the victim or victims of the alleged violations".[48] the request for interim measure are done in order to prevent the occurrence of an event, which later cannot be undone.[49]

 

Once the Committee considers a case admissible, then it proceeds to consider its merits, stating its reasons for concluding that a violation has or has not occurred under the applicable treaty provisions. One should also keep in mind the reservations that State parties have made, that limits the scope of their obligations. Hence, the Committee refuses to consider complaints that fall within areas covered by reservations.[50]

 

- Inter-State Complaints

 

The Optional Protocol provides the Committee to receive inter-State complaints, however, only if a State Party declares that " it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under the Covenant. Communications under the present article may be received and considered only if submitted by a State Party that has made a declaration recognising in regard to itself the competence of the Committee" (Article 10(1)).[51] This procedure has never been used.

 

- Inquiry Procedure

 

Article 11(1) of the Optional Protocol mentions that the Committee can initiate inquiries, provided that the State Party declares that it recognises the Committee's competence to do so.[52]

 

When the Committee receives reliable information on serious and systematic violation of economic, social and cultural rights by a State Party, it may on its own initiative (provided that the State Party has given it competence to do so) initiate inquires if it has received reliable information containing well-founded indications of serious and/or systematic violations of the Covenant rights in the State Party.[53] Once the inquiry has been initiated, the Committee invites the State Party to cooperate in the examination of the information by submitting observations.[54] The Committee then may decide to designate one or more of its members to make a confidential inquiry, and report to the Committee urgently. The findings of the member(s) are then examined by the committee and transmitted to the State Party together with any appropriate comments or suggestions, and recommendations.[55] When warranted, and with the consent of the State Party concerned, an inquiry may include a visit to its territory.[56] The State Party, within six months of receiving the findings and the comments from the Committee, should submit its observation to the Committee, and where invited by the Committee, it has to inform it of the measures taken in response to the inquiry. The inquiry procedure is confidential, and the cooperation of the State Party is sought throughout all the stages of the proceedings.[57]

 

The Committee may decide, in  consultation with the State Party concerned, to include a summary account of the results of the proceedings in its annual report. The full inquiry and the State Party’s response may be made public, only if the State Party agrees.[58]

 

- Missions by the Committee

 

In situations where the Committee considers that its regular procedure of consideration of State Party reports or the follow up procedure are not successful in eliciting information form a State Party about the implementation of the Covenant, it may, on an exceptional basis, indicate a desire to have its representatives invited to visit a State. This decision is made in circumstances where it is necessary in order to collect information that is necessary for the Committee to continue its dialogue with the State Party, and assist the Committee in exercising its functions. Missions may serve to assess whether a State Party needs technical assistance programmes of the OHCHR. The reports of the mission are confidential, and are put before the Committee for consideration, and recommendations are adopted. Afterwards, both the mission reports and the recommendations are made public and published.[59]

 

Once the State Party has accepted to receive the mission, NGOs have a significant role in providing information to the Secretariat in order to assist the relevant Committee members in putting together a relevant programme for the mission. NGOs can also enhance the impact of the missions by promoting appropriate publicity in the State concerned, and encouraging the submission of relevant information to the Committee.[60]

 

- Exceptional Action

 

Other than the regular reporting procedure, NGOs may decide to pass information of an urgent nature to the Committee, requesting its rapid response. One received, the Committee may decide to communicate the information to the State Party concerned, and solicit its views on the matter.[61]

 

Role of NGOs

 

The Committee has long recognised the important contribution that civil society can make to the provision of information concerning the status of the Covenant within States Parties. The Committee was the first treaty body to provide NGOs with the opportunity to submit written statements and make oral submissions dealing with issues relating to the enjoyment or non-enjoyment of the rights contained in the Covenant in specific countries.[62]

 

As the Committee is a subsidiary body of ECOSOC, the rules for NGO participation that apply to ECOSOC, also apply to the Committee. Hence, NGOs with general or special consultative status with ECOSOC or that are on the Roster may submit a written statement to the Committee at the reporting session. An NGO without consultative status with ECOSOC, may also submit a written statement, provided that it is sponsored by an NGO in consultative status with ECOSOC. NGOs may also participate in the work of the pre-sessional working group by submitting written parallel reports, or by making oral statement to the Working Group, or to the Country Rapporteur prior to its meeting. On the first day of each session of the Committee, an NGO hearing is organized, during which, NGOs can voice their concerns in an oral statement on the countries whose report will be subject to examination. However, NGOs cannot participate in the dialogue between the Committee and the representatives of governments.[63]

 

The Committee has requested the Secretariat to compile lists of relevant NGOs active within State parties, with a view toward their submissions being solicited when the State's reports are to be considered. Hence, it is useful for NGOs to register their interest with the secretariat. The submissions and other forms of information submitted by the NGOs will be used by the Secretariat to prepare the country files, and eventually the country profile, and by the Country Rapporteur, to write the draft issue for the eventual consideration by the Working Group.[64]

 

It is very important that NGOs who wish to be invited to make oral submissions to the Working Group so indicate. They should also indicate their area of  expertise. No financial assistance is provided by the United Nations to assist NGOs in attending the Working Group or the Committee. To gain access to the United Nations building in Geneva, NGOs should first contact the Secretary of the Committee. On arrival at the meeting room, NGOs should indicate their arrival to the Secretariat in order to ensure that they are allowed to enter the private meeting and that they are called on to speak. The length of the speaking time given to each NGO turns in the amount of pressure on the Working Group's time. In general, oral contributions should be kept short and to the point, and provide suggestions for specific questions that the Working Group may consider incorporating in the list of issues with respect to the State concerned. NGOs can also use audio-visual aids, however, appropriate requests should be made to the Secretariat in good time. At the conclusion of the NGO presentations, The Committee can make comments and ask questions.[65]

 

NGOs from the same State party have been advised by the Committee to coordinate, collaborate and consult to the fullest extent when they are preparing submissions, in order to produce a single consolidated submission, that represents a broad consensus by them.[66] Oral submissions given by the NGOs should: (1) focus on the provisions of the Covenant, (2) be of relevance to the matters under consideration by the Committee, (3) be reliable, and (4) not to be abusive (the Rules of Procedure of the Committee). The Committee has further indicated that when giving oral submissions, NGOs may (1) state their opinion about the State party report, (2) indicate whether there was or was not any government/NGO consultation through the reporting process, (3) discuss the main critical points of the NGO submissions, (4) identify prevailing trends related to economic, social, and cultural rights in the country, (5) present any information that has become available since the NGO submission, (6) propose solutions for the problems that hinder the implementation of the Covenant, (7) report any positive example of problem-solving by the government in implementing the Covenant.[67]

 

In Circumstances where there are too many NGOs who wish to speak, the Committee Chairperson, in consultation with the Committee Bureau, may choose those NGOs who can make a contribution to the discussions.[68]

 

Any NGO working within the field of the human rights contained in each treaty can interact with the treaty bodies. NGOs are usually not required to be in consultative status with the Economic and Social Council (ECOSOC) in order to work with treaty bodies.[69]

- General Comments by the Committee

 

The Committee regularly devotes one day of its session to a general discussion of a particular right or of a particular aspect of the Covenant. The purpose of these general discussion are threefold: (1) general discussions help the committee to develop in greater depth its understanding of relevant issues, (2) it enables the Committee to encourage inputs into its work from all interested parties; and helps the Committee to lay the basis for a future General Comment.[70]

 

General Comments are authoritative interpretation of the Covenant by the Committee. Here again, NGOs have a role to play. When the Committee is discussing and drafting a General Comment, specialised NGOs can address the Committee in writing. Moreover, during the discussions, NGOs can make a short oral statement on specific points of the draft General Comment.[71] To date, the Committee has made 

24 General Comments, with the last one issued in 2017.[72]

 

General Comment 1: Reporting by State Parties (1989)

 

General Comment 1 states that the reporting procedure by the State Parties is not only a procedural matter, and it is designed to help and assist the State Parties to fulfilling their obligations under the Covenant, and to assist the Committee in its function of monitoring compliance to the Covenant by its Parties.[73]

 

The aim of the report is to help the State Party to monitor the actual situation of each Covenant right on a regular basis. Special attention should be given to the "worse off" regions, and to vulnerable groups. The reporting also helps to facilitate public scrutiny of government policies regarding the Covenant rights.[74] NGO role)

 

General Comment 2: International Technical Assistance Measures (Art. 22) (1990)

 

Article 22 of the ICESCR mentions "The Economic and Social Council may bring to the attention of other organs of the United Nations, their subsidiary organs and specialized agencies concerned with furnishing technical assistance any matters arising out of the reports referred to in this part of the present Covenant which may assist such bodies in deciding, each within its field of competence, on the advisability of international measures likely to contribute to the effective progressive implementation of the present Covenant".[75]

 

The Committee interprets that this provision includes any organs of the United Nations, its subsidiary bodies, and specialised agencies. Hence, it includes all the UN organs and agencies involved in any aspect of international development cooperation; the Secretary-General, subsidiary organs of the ECOSOC, such as the Commission on Human Rights, the Commission on Social Development and the Commission on the Status of Women, other bodies such as UNDP, UNICEF and CDP, agencies such as the World Bank and IMF, and any of the other specialised agencies such as ILO, FAO, UNESCO and WHO.[76]

 

The Committee also mentioned that all development cooperation activities not only do not  contribute to the promotion of the economic, social, and cultural rights, but also sometimes have even been counter-productive in human rights terms. Hence, the Committee suggests that an intimate relationship should be established between the development activities and efforts to promote and respect human rights.[77]

 

General Comment 3: The nature of States parties obligations (Art. 2, par.1) (1990)

 

One of the challenges facing the Committee was to clarify the nature of States Parties obligations resulting from Article 2(1) of the Covenant. This issue was discussed in a meeting, which took place in Maastricht. The outcome of the meeting was called the Limburg Principles, and this provided the basis for General Comment 3.[78]

 

The Committee first clarifies the meaning of  the obligation to "to take steps". The Committee mentions that while the full realisation of these rights might take time (achieved progressively), a State Party must begin to take measures aimed at the implementation of the rights shortly after the Covenant enters into force for that State.[79] No passive attitude is tolerated.

In the view of the Committee, the clause "achieving progressively the full realization of the rights" means that the drafters knew the fact that in many countries full realization will not be achieved in a short period of time- thus it reflects the realties and difficulties in the real world. However, on the other hand, the object and the main aim of the Convention is that it lays down it lays down obligations for States for full realization of rights. Deliberately retrogressive measure which imply a step backwards in the enjoyment of these rights, will require careful consideration and full justification in light of object and purpose of the Covenant.[80]

 

The Committee introduces a new concept that lays down minimum level of enjoyment of a right that should be guaranteed under all circumstances. The Committee mentions that "minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party", or else the Covenant would lose its raison d'être. The Committee goes on to argue that in a State party, where a significant number of individuals are deprived of essential foodstuffs, primary health care, basic shelter and housing, or of the basic form of education, the State party is failing to discharge its basic obligation under the Covenant. The Committee also thinks that in the light of the obligation to take steps to the maximum of its available resources, States should give priority to the satisfaction of minimum core obligations.[81]

 

General Comment 4: The right to adequate housing  (Art.11 (1))  (1990)

 

The Committee sates that the right to adequate housing, which is derived from the right to adequate standard of living, is of central importance for the enjoyment of all economic, social and cultural rights. The Committee also makes note of the gap that exists in the standards set in the Covenant, and the realities in the world, and states that the problem of homelessness and inadequate housing is not only a characteristic of developing countries, but also exists in the developed ones. 

 

The Committee mentions that the right to adequate housing applies to everyone, and should not be interpreted in a narrow sense; that is just having a roof over one's head; rather it should mean "the right to live somewhere in security, peace and dignity". This is important for two reasons: (1) the right to adequate housing is related to the other rights in the Covenant, (2) the provision does not speak about the right to housing, but the right to adequate housing. Certain aspects of the right include- legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, habitability, accessibility, location, and cultural adequacy.

 

The Committee also considers forced eviction is incompatible with the purpose of the Covenant, and can only be justified in the most exceptional cases, and in accordance with the principles of international law. Also, the component elements of the right to adequate housing is compatible with the provision of local remedies (compensation, legal appeals, etc.).[82]

 

 

 

 

General Comment 5: Persons with disabilities (1994)

 

First, the Committee mentions that it uses the term "persons with disabilities", rather than the old term "disabled persons", because the latter is misinterpreted to imply that the ability of the person to function as a person or a human being has been disabled.

 

Then, the Committee goes on to say that although the Covenant does not explicitly mention persons with disabilities, the  provisions apply fully to all members of society, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant. Moreover, states are required to use their available resource to the maximum in helping such persons to overcome disadvantages.

 

The United Nations had estimated in 1994, that there were more than 500 million persons with disabilities in the world. The State parties have an obligation to take positive action  reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities. One of the most interesting aspects of this General Comment is that the Committee mentions that with governments around the world adopting market-based policies, and knowing well that the operation of free-market will produce unsatisfactory results for persons with disabilities, the incumbent government should step in and take appropriate measures to override the results the results produced by market forces.

 

The Committee mentions that the means to be used for the implementation of the State parties obligations towards persons with disabilities is essentially the same as the means adopted for other obligations. Moreover, State parties have the obligation to eliminate de facto and de jure discrimination against persons with disabilities.[83]

 

General Comment 6: The economic, social and cultural rights of older persons (1995)

 

The Committee mentions that the world population is ageing in a steady and spectacular rate. By 2025, the total number of persons over the age of 60 will be around 1.2 billion. This phenomenon will have far reaching consequences on the economic and social structures of societies.

 

The Committee also mentions the internationally endorsed polices in relation to older persons, which include the Vienna International Plan of Action on Ageing, the United Nations Principles for Older Persons,  and the General Assembly eight global targets on ageing for the year 2001.

 

Although the Covenant does to mention older persons explicitly, its Article 9, which  deals with the right of everyone to social security, including social insurance", implicitly recognizes the right to old-age benefits. And in the view of the fact that Covenant's provisions apply to all members of society, it is clear that older persons are entitled to enjoy the full range of rights recognized in the Covenant. Another important issue is that discrimination on the basis of age is prohibited by the Covenant. Although the Covenant does not refer explicitly to age as one of the prohibited grounds, the reason behind this was that the problem of demographic ageing was not as evident or as pressing as it is now. The Committee goes on to mention that States parties to the Covenant are obligated to pay particular attention to promoting and protecting the economic, social and cultural rights of older persons.[84]

 

General Comment 7: The right to adequate housing- forced evictions (Article 11(1)) (1997)

 

In its General Comment 4, the Committee stressed that every person  should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. It also concluded that forced eviction are incompatible with the requirements of the Covenant. However, after its General Comment 4, the Committee received information and reports about forced evictions and State party violations of Covenant obligations. Hence, it decided to further clarify the implications of such practices in terms of the obligations contained in the Covenant.

 

The international community has long recognized that the issue of forced evictions is a serious one. Different international conferences have dealt with the issue of forced eviction in one way or another. Moreover, the Committee recognizes the problems attached with the terminology "forced eviction", however, it chooses to continue using this term, since all other proposed terms also suffer from defects.

 

The Committee recognizes that the practice of forced eviction is widespread, and it effects people in both developed and developing countries. Moreover, since all human rights are interrelated and interconnected, forced evictions frequently violate other human rights. Forced evictions is not limited to heavily populated urban areas, as it also takes place in connection with forced population transfers, internal displacement, forced relocations in the context of armed conflict, mass exoduses and refugee movements. Thus, in many instances, forced eviction is associated with violence. Forced eviction sometimes occurs also in the context, and in the name of development.

 

The obligation of State parties in relation to forced evictions are based on Article 11(1), read in conjunction with other relevant provisions. The State must refrain from forced evictions and  ensure that the law is enforced against its agents or third parties who carry out forced evictions. Article 2(1), requires State parties to adopt "all appropriate means", including  the adoption of legislative measures, to promote all the rights protected under the Covenant.

 

The Committee also recognizes that Women, children, youth, older persons, indigenous people, ethnic and other minorities, and other vulnerable individuals and groups all suffer disproportionately from the practice of forced eviction. Hence, the principle of non-discrimination puts an obligation on states that when evictions occur, they should not be discriminatory in nature. The Committee states that while some cases of eviction can be justifiable, nonetheless, it should be carried out with in a manner warranted by a law which is compatible with the Covenant and that all the legal recourses and remedies are available to those affected. Genuine consultations with those affected are also of high importance.[85]

 

General Comment 8: The relationship between economic sanctions and respect for economic, social and cultural rights (1997)

 

The Committee states that economic sanctions are being imposed with increasing frequency, both internationally, regionally and unilaterally. The Committee states that while not questioning the necessity of the imposition of sanction in appropriate cases under Chapter VII of the United Nations Charter, it affirms that in all circumstances  sanctions should always take full account of the provisions of the ICESCR.

 

The Committee mentions that although cases vary, most of the time economic sanctions have a drastic effect on the Covenant rights, causing for example  disruption in the distribution of food, pharmaceuticals and sanitation supplies, jeopardize the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work. Sanctions also have the tendency to backfire, strengthening the power of the oppressive elites, and the creation of black markets.

 

Hence, the Committee calls for the distinguishing of the objective of applying pressure on the regime to make it conform to international law, and the collateral infliction of suffering to the most vulnerable groups within the targeted country. And although the sanction regime now includes a humanitarian exemptions which are designed to allow the flow of essential goods and services, these humanitarian exemptions do not have the intended effect. The Committee concludes that insufficient attention is paid to the most vulnerable groups, and mentions that the Covenant rights do not stop to apply, solely for the reason that a decision  has been made that for the maintenance for international peace and security sanctions are needed.  The Committee also reminded that obligation to respect human rights come from the commitment in the Charter of the United Nations.

 

The Committee further states that there two sets of obligations. One on the state on which sanctions are imposed; Where the sanctions do not nullify its Covenant obligations, and one on the states imposing the sanctions.[86]

 

General Comment 9: The Domestic Application of the Covenant (1998)

 

This General Comment is a further elaboration of some of the elements of General Comment 3. The Central obligation of the Covenant is to give effect to the rights mentioned in it. The term "all appropriate means" gives the Covenant a flexible approach, which enables the particularities of the legal and administrative systems of each State, to be taken account of.

 

However, the flexibility coexists with obligation of each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. Hence, the Covenant norms should be recognized in an appropriate  way within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.

 

The Committee states that State parties cannot invoke provisions form its internal laws to justify non-compliance with the Covenant. Thus, a State party should modify its domestic legal order in order to give effect to the Covenant.  The Committee also mentions that the right to effective remedy does not always mean judicial remedy, and administrative remedies are in most cases adequate.

 

When it comes to the justiciability of the Covenant rights, the Committee mentions that there is no Covenant right which could not, in the great majority of systems, be considered to possess at least some significant justiciable dimensions.[87]

 

General Comment 10: The Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural rights (1998)

 

Article 2 (1) of the Covenant puts an obligation on states to take “to take steps ... with a view to achieving progressively the full realization of the Covenant rights ... by all appropriate means”. The Committee states that one such mean is the work of national institutions for the promotion and protection of human rights. These institutions can be human rights commissions, Ombudsman offices, human rights advocates. In most of the cases, these institutions are established by the government, and enjoy autonomy from the legislature and the executive branch of the State.

 

The Committee mentions that national institutions have a crucial role to play in promoting and ensuring the indivisibility and interdependence of all human rights. However, this role has often been neglected or given low priority. The Committee goes on to mention some of the activities that can be undertaken by national institutions in relation to economic, social, and cultural rights; (1) Promotion of educational programmes designed to enhance awareness of economic, social, and cultural rights, (2) scrutinizing laws and administrative acts to ensure they are compatible with Covenant obligations, (3) providing technical advice, (4) identification of national-level benchmarks against which the realization of Covenant obligations can be measured, (5) conducting research and inquiries, (6) monitoring compliance, (7) examining complaints.[88]

 

General Comment 11: Plans of Action for Primary Education (Article 14) (1999)

 

Article 14 of the Covenant mentions that each State party which has not yet secured compulsory primary education, which is free of charge, should undertake within two years,

to work out and adopt a detailed plan of action for the progressive implementation, within a reasonable number of years. The Committee mentions despite the obligations mentioned in the Covenant, some State parties have neither implemented, nor have adopted a plan of action.

 

The Committee states that in line with their obligation under Article 14 of the Covenant, each State party must present to the Committee a plan of action. The Committee also comments on some of the elements found in Article 14, such as; compulsory, free of charge, adoption of detailed plan, obligations, and progressive implementation. [89]

 

General Comment 12: Right to adequate Food (Article 11) (1999)

 

The Committee mentions that the human right to food is mentioned under several instruments in international law. The human right to adequate food is fundamental for the enjoyment of other rights. The Committee sates that the term "himself and his family" in Article 11(1) does not imply limitations of this right to individuals and female-headed households.

 

The Committee argues that the right to adequate food is indivisibly linked to the inherent dignity of the human person. It is also inseparable from social justice. However, the Committee notes the fact that a gap exists between the standards in Article 11, and the prevailing situation in many parts of the world. More than 840 million people in the world are chronically hungry. It also notes the fact the sometimes food is used as a political weapon, and although problems related to the right to food is prevalent in the developing world, it also exists in some of the most economically developed countries.

 

The right to adequate food should not be interpreted in the narrow sense. The concept of adequacy serves to underline a number of factors which must be taken into account in determining whether foods or diets that are available are appropriate  under given circumstances. The Committee also mentions the term sustainability, implying that food should be accessible for both present and future generations. It further states that the core content of the right to food implies that (1) food is available in quantity and quality to satisfy the dietary needs of individuals,  free from adverse substances, and acceptable within a given culture. and (2) food should be accessible in ways that are sustainable, and does not interfere with the enjoyment of other rights. The Committee goes on to explain the elements found in these two points, such as accessibility, availability, etc.

 

When it comes to the State party obligation regarding this Article, the Committee mentions that each party is obliged to ensure for everyone under its jurisdiction access to the minimum essential food which is sufficient, nutritionally adequate and safe, to ensure their freedom from hunger. The right to adequate food, like other rights, puts three kinds of obligations: The obligations to respect, to protect, to fulfil. Violations occur when state parties fail to when a State fails to ensure the satisfaction of, at the very least, the minimum essential level required to be free from hunger. However, it is important to distinguish between the inability and unwillingness of the state to satisfy the minimum requirements. Furthermore, any discrimination in access to food on the grounds of race, colour, etc. is a violation of the Covenant.

 

The Committee also talks about the implementation of the right to adequate food on the national level, and states that the most appropriate ways of implementing this right varies from one sate to the other, however, all states are required to adopt a  national strategy to ensure food and nutrition security for all, based on human rights principles.[90]

General Comment 13: The Right to Education (Article 13) (1999)

 

The Committee states that education is a human right, and an indispensible means to realizing other human rights. Education vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. It is a tool to empower women, and safeguarding children from different kinds of exploitations.

 

The Committee takes the view that States parties are required to ensure that education conforms to the aims and objectives identified in Article 13(1). The Committee mentions that education should be available, accessible, acceptable, and adaptable. Primary education should be available to all, compulsory, and free of charge. When it comes to secondary education, states  have an obligation to take concrete steps towards achieving free secondary and higher education. Technical and vocational education (TVE) includes both the right to education and the right to work. The Committee mentions that TVE forms an integral element of all levels of education.

 

The Committee states that State parties are obliged to have an overall developmental strategy for its school system. The strategy must encompass schooling at all levels. The Committee also mentions that the prohibition against discrimination enshrined in is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education. If a state adopts temporary measures to bring about the de-facto equality for women and men, and for disadvantaged groups, this is not considered to be a violation of the right to non-discrimination with regard to education.

 

The Committee also mentions that that the right to education can only be enjoyed if accompanied by the academic freedom of staff and students. State parties have immediate obligations in relation to the right to education, such as the guarantee that the right will be exercised without discrimination of any kind and the obligation to take step towards the full realization. Violations of the right to education include, the introduction or failure to repeal legislation which discriminates against individuals or groups, on any of the prohibited grounds, in the field of education; the failure to take measures which address de facto educational discrimination; the use of curricula inconsistent with the educational objectives set out in Article 13(1) the failure to maintain a transparent and effective system to monitor

conformity with Article 13(1), the failure to introduce, as a matter of priority, primary education which is compulsory and available free to all, etc.

 

The Committee also mentions the obligation of actors other then the state, such as civil society. UNESCO, UNDP, UNICEF, ILO, the World Bank, etc. [91]

 

General Comment 14: The Right to the Highest Attainable Standard of Health (Article 12) (2000)

 

Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity. The realization of this right may be pursued through different means, such as formulating health policies, implementing health programmes developed by the WHO, or adopting specific legal instruments. The right to health contains certain components that are legally enforceable.

 

The Committee states that the right to health does not mean the right to be healthy. It contains both freedoms and entitlements. The notion of “the highest attainable standard of health” in Article 12(1) takes into account both the individual’s biological and socio-economic preconditions and a State’s available resources. Since the adoption of the Covenant, more determinants of health have been taken into consideration, such as resource distribution and gender differences.

 

The Committee states that it interprets the right to health as an inclusive right extending not only to timely and appropriate health care but also to the underlying determinants of health, such as access to safe and potable water and adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy occupational and environmental conditions, and access to health-related education and information, including on sexual and reproductive health. A further important aspect is the participation of the population in all health-related decision-making at the community, national and international levels. The right to health should contain the elements of availability, accessibility, acceptability, quality.

 

When it comes to State party obligations, the Covenant imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to health, such as the guarantee that the right will be exercised without discrimination of any kind and the obligation to take steps towards the full realization of the right to health. Such steps must be deliberate, concrete and targeted towards the full realization of the right to health. The Committee states that any retrogressive measures taken in relation to the right to health are not permissible. Like all other human rights, the right to health imposes the three obligations of to respect, protect, and fulfil.

 

The Committee goes on to mention the importance of international cooperation in realizing Covenant rights, including the right to health.[92]

General Comment 15: The Right to Water (Articles 11, 12) (2002)

 

Water is a limited natural resource, a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights.

 

The Committee states that the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.

 

The Committee mentions the importance of ensuring sustainable access to water resources agriculture to realize the right to food. Addition attention should be given to ensure that disadvantaged,  marginalized farmers, including women farmers have access to water resources. The right to water contains freedoms and entitlements. Moreover, the right to water contains the following factors: Availability, quality, accessibility. 

 

The State parties have obligations which are of immediate effect in relation to the right to water, such as guaranteeing that the right will be exercised without discrimination, and taking steps towards the full realization of the right. Any step that is considered to be of retrogressive is prohibited under the Covenant. The Committee also states that State parties should review existing legislation, strategies and policies should be reviewed to ensure that they are compatible with obligations arising from the right to water.[93]

 

General Comment 16: The equal right of men and women to the enjoyment of all economic, social and cultural rights (Article 3) (2005)

 

The equal right of men and women to the enjoyment of all human rights is one of the fundamental principles recognized under international law and enshrined in the main international human rights instruments. Article 3 of the Covenant In particular, article 3 of this Covenant provides for the equal right of men and women to the enjoyment of the rights it articulates.

 

The Committee states that Women are often denied equal enjoyment of their human rights, in particular by virtue of the lesser status ascribed to them by tradition and custom, or as a result of overt or covert discrimination. Many women experience distinct forms of discrimination due to the intersection of sex with such factors as race, colour, language, religion, political and other opinion, national or social origin, property, birth, or other status, such as age, ethnicity, disability, marital, refugee or migrant status, resulting in compounded disadvantage.

 

The Committee mentions that the essence of Article 3 is that the rights set forth in the Covenant are to be enjoyed by men and women on a basis of equality. Guarantees of non-discrimination and equality in international human rights treaties mandate both de facto and de jure equality. The principle of non-discrimination is a corollary of the principle of equality. The equal right of men and women to the enjoyment of economic, social and cultural rights puts the obligation to respect, to protect and to fulfil on the State parties.[94]

 

General Comment 17: 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 is the author (Article 15 (1) (c))

 

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 is a human right, which derives from the inherent dignity and worth of all persons. This fact

distinguishes article 15, paragraph 1 (c), and other human rights from most legal entitlements recognized in intellectual property systems. Human rights are fundamental, inalienable and universal entitlements belonging to individuals and, under certain circumstances, groups of

individuals and communities. Human rights are fundamental as they are inherent to the human person as such, whereas intellectual property rights are first and foremost means by which States seek to provide incentives for inventiveness and creativity, encourage the dissemination of creative and innovative productions, as well as the development of cultural identities, and preserve the integrity of scientific, literary and artistic productions for the benefit of society as a whole.

 

The Committee states that in contrast to human rights, intellectual property rights are of a temporary nature, and can be revoked, licensed or assigned to someone else. It is therefore important not to equate intellectual property rights with the human right recognized in Article 15 (1 (c)). This Article tries to encourage the active contribution of creators to the arts and sciences and to the progress of society as a whole. The right to the protection of the moral and material interests of authors contains the following elements: Availability, accessibility, and quality of protection.

 

When it comes to State parties' obligations, State parties are obliged to take steps to fulfil the obligations, and these steps should be deliberate, concrete and targeted towards the full realization of the right. Retrogressive actions taken are not permissible.

 

General Comment 18: The Right to Work (Article 16) (2005)

 

The right to work is essential for realizing other human rights, and forms an inseparable and inherent part of human dignity. The right to work in ICESCR affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.

 

The Committee mentions that the right to work is an individual right that belongs to each person and is at the same time a collective right. It encompasses all forms of work, whether independent work or dependent wage-paid work, however, this should not be understood as an absolute and unconditional right to obtain employment. The Committee states that Articles 6, 7 and 8 of the Covenant are interdependent. It also stresses the need for States parties to abolish, forbid and counter all forms of forced labour. The exercise of work in all its forms and at all levels requires the existence of the elements of availability, accessibility, acceptability, and quality. The Committee also mentions how the right relates to people who belong to vulnerable groups, such as women, children, persons with disabilities. The principle obligation of the State parties is ensure the progressive realization of the  exercise of the right to work.  Like all human rights, the right to work imposes three types or levels of obligations on States parties: the obligations to respect, protect and fulfil.

 

The Committee also comments on the violations of State parties obligations. It mentions that distinction should be drawn between the inability and the unwillingness of States parties to comply with their obligations under Article 6. For example, violation of the obligation to respect include laws, policies and actions that contravene the standards laid down in Article 6. Violations of the obligation to protect follow from the failure of States parties to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to work by third parties. Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to work. The Committee goes on to talk about the remedies for violation of the right, and accountability of those who violate the provision laid down in the Article.[95]

General Comment 19: The Right to Social Security (2007)

 

Article 9 of the ICESCR mentions that "The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance". The Committee mentions that the right to social security is of central importance in guaranteeing human dignity for all persons when they are faced with circumstances that deprive them of their capacity to fully realize their Covenant rights.

 

The right to social security secures protection from (1) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member, (2) unaffordable access to health care, (3) insufficient family support, particularly for children and adult dependents. Social security plays an important role in poverty reduction, preventing social exclusion and promoting social inclusion.

 

The Committee mentions that the right to social security includes the right not to be subject to arbitrary and unreasonable restrictions of existing social security coverage, whether obtained publicly or privately. The Committee mentions that social security should be available,  and should provide for the coverage of  nine principal branches of social security, which include: Health care, sickness, old age, unemployment, maternity, disability, etc.

 

The Committee also states that State parties should make sure that indigenous people,  and ethnic and linguistic minorities are not excluded from social security. State parties have also core obligations, such as To ensure access to a social security scheme that provides a minimum essential level of benefits to all individuals and families, To ensure the right of access to social security systems or schemes on a non-discriminatory basis, etc.[96]

General Comment 20: Non-Discrimination in Economic, Social and Cultural Rights (Article 2 (2))

 

The Committee states that undermines the fulfilment of economic, social and cultural rights for a significant proportion of the world’s population. Economic growth in itself does not necessarily contribute to  sustainable development, and individuals and groups of individuals continue to face socio‑economic inequality, often because of entrenched historical and contemporary forms of discrimination.

 

Non-discrimination and equality are fundamental components of international human rights law and essential to the exercise and enjoyment of ICESCR. Thus, The principles of non-discrimination and equality are recognized throughout the Covenant. Non-discrimination is an immediate and cross-cutting obligation in the Covenant. The Committee mentions that discrimination should be ended both formally (laws and policy documents) and substantively (paying sufficient attention to groups of individuals which suffer historical or persistent prejudice).

 

The Committee states that both direct and indirect differential treatment can amount to discrimination. Direct discrimination occurs when an individual is treated less favourably than another person in a similar situation for a reason related to a prohibited ground, while indirect discrimination refers to laws, policies or practices which appear neutral at face value, but have a disproportionate impact on the exercise of Covenant rights. It also states that discrimination in private spheres, such as in families, workplaces, and other sectors of society.

 

The Committee states Article 2 (2) lists the prohibited grounds of discrimination as “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”. The inclusion of “other status” indicates that this list is not exhaustive and other grounds may be incorporated in this category. The "other status" may include disability, age, nationality, marital status, sexual orientation and gender identity, etc.[97]

 

General Comment 21: Right of Everyone to Take Part in Cultural Life (2009)

 

Cultural rights are an integral part of human rights and, like other rights, are universal, indivisible and interdependent. The full promotion of and respect for cultural rights is essential for the maintenance of human dignity and positive social interaction between individuals and communities in a diverse and multicultural world.

 

The Committee states that to take part in cultural life can be characterized as a freedom. In order for this right to be ensured, it requires from the State party both abstention, and positive action. It further states that the full realization of the right of everyone to take part in cultural life on the basis of equality and non-discrimination, the elements of availability, accessibility, acceptability, adaptability, and appropriateness should be available. The Committee makes it clear that no State can invoke cultural diversity to infringe upon human rights guaranteed by international law, nor to limit their scope. Moreover, Applying limitations to the right of everyone to take part in cultural life may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions, that infringe upon other human rights.

 

The Committee further states the importance of  the principle of non-discrimination and equal treatment in relation to the right. It further lists the persons and communities in need for special protection, such as women, children, minorities, indigenous people, and migrants. It also mentions that   cultural diversity is an ethical imperative, inseparable from respect for human dignity.  

 

The Covenant imposes on States parties the immediate obligation to guarantee that the right set out in Article 15 (1(a))is exercised without discrimination, to recognize cultural practices and to refrain from interfering in their enjoyment and development. Like other Covenant rights, this right puts on the state the obligation to respect, protect, and fulfil. [98]

Notes 

[1] Michael O'Flaherty, Human Rights and the UN: Practice Before the Treaty Bodies (Kluwer Law International: 2002), 2nd ed. p.57

[2] Ibid.

[3] Felipe Gomez Isa and Koen de Feyter (eds), International Human rights Law in a Global Context (Universidad de Deusto: 2009), p.299

[4] Ibid

[5] Ibid

[6] http://www2.ohchr.org/english/bodies/cescr/ 

[7] Ibid

[8] Ibid

[9] International Human Rights Law in a Global Context, p.299

[10] Human Rights and the UN: Practice Before the Treaty Bodies, p.57-58

[11] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/Membership.aspx  

[12] International Human Rights Law in a Global Context, p. 300

[13] http://www2.ohchr.org/english/bodies/cescr/ 

[14] Human Rights and the UN: Practice Before the Treaty Bodies ,p.58

[15] Ibid

[16] Ibid

[17] Ibid

[18] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx 

[19] Human Rights and the UN: Practice Before the Treaty Bodies, p.58

[20] Ibid, p.59

[21] Ibid

[22] http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/38e23a6ddd6c0f4dc12563ed0051cde7?Opendocument 

[23] Human Rights and the UN: Practice Before the Treaty Bodies, p.60

[24] Ibid, p.60

[25] Ibid, p.60

[26] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx

[27] Human Rights and the UN: Practice Before the Treaty Bodies, p.60

[28] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx

[29] Human Rights and the UN: Practice Before the Treaty Bodies, p.61

[30] Ibid

[31] International Human Rights Law in a Global Context, p.300

[32] Ibid

[33] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx

[34] Human Rights and the UN: Practice Before the Treaty Bodies, P.61

[35] International Human Rights Law in a Global Context, p.300

[36] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/WorkingMethods.aspx

[37] International Human Rights Law in a Global Context, p.301

[38] http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf

[39] https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-3-a&chapter=4&lang=en 

[40] http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf 

[41] Ibid

[42] Ibid

[43] Ibid

[44] http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#whatinfo 

[45] Ibid

[46] Ibid

[47] Ibid 

[48] http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf 

[49] http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#whatinfo 

[50] http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/IndividualCommunications.aspx#themerits

[51] http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf 

[52] http://www2.ohchr.org/english/law/docs/A.RES.63.117_en.pdf 

[53] http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx#inquiries

[54] The United Nations Human Rights Treaty System, Fact Sheet No.30 p. 33

[55] Ibid. p33

[56] http://www.ohchr.org/EN/HRBodies/TBPetitions/Pages/HRTBPetitions.aspx#inquiries 

[57] Ibid

[58] The United Nations Human Rights Treaty System, Fact Sheet No.30 p.33

[59] Human Rights and the UN: Practice Before the Treaty Bodies, p.70

[60] Ibid

[61] Ibid

[62] http://www.ohchr.org/Documents/Publications/FactSheet16rev.1en.pdf 

[63] International Human Rights Law in a Global Context, p.302

[64] Human Rights and the UN: Practice Before the Treaty Bodies,p. 62-63

[65] Ibid, p.63

[66] Ibid

[67] Ibid, p.64

[68] Ibid,

[69] Hilary Binder-Aviles, The NGO Handbook, p.66

[70] https://www.ohchr.org/EN/HRBodies/CESCR/Pages/DiscussionDays.aspx

[71] Human Rights and the UN: Practice Before the Treaty Bodies, p. 71

[72] http://www2.ohchr.org/english/bodies/cescr/ 

[73] https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11

[74] Ibid

[75] http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx 

[76] https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11

[77] Ibid

[78] International Human Rights Law in a Global Context,] p.304

[79] https://tbinternet.ohchr.org/_layouts/treatybodyexternal/TBSearch.aspx?Lang=en&TreatyID=9&DocTypeID=11

[80] Ibid

[81] Ibid

[82] Ibid

[83] Ibid

[84] Ibid

[85] Ibid

[86] Ibid

[87] Ibid

[88] Ibid

[89] Ibid

[90] Ibid

[91] Ibid

[92] Ibid

[93] Ibid

[94] Ibid

[95] Ibid

[96] Ibid

[97] Ibid

[98] Ibid

 

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