ICESCR Training Guide - Appendix B: Summary of the International Covenant on Economic, Social and Cultural Rights

Source: Canadian Human Rights Foundation, International Human Rights Training Program Manual, 2005.

Overview

The International Covenant on Economic, Social and Cultural Rights (ICESCR) was adopted by UN General Assembly on December 16, 1966 and entered into force on January 3, 1976. As of 26 January 2006, 152 States have become parties to the Covenant (6 States are remaining signatories);

Source: United Nations Treaty Collection website.

Unlike civil and political rights, economic, social and cultural rights are often viewed with 'suspicion, caution and scepticism'. At times even 'treated with an air of triviality'. In the human rights field, ESC rights are most often accorded secondary status by governments and NGOs.

However, ESC rights are an indivisible part of human rights. First, ESC rights have intrinsic value. They expand the freedom to lead a life that people value. The potential of the human person may be expressed through civil and political rights, but the realization of these potentialities requires adequate social and economic circumstances. The concept of human dignity is the foundation for all civil, political, economic, social and cultural rights. These rights can neither be given nor taken away. Human dignity is denied when civil and political rights, as well as ESC rights are not guaranteed. Two common elements mediate both sets of rights - security and equality. Security of the person includes socio-economic security and equality before the law encompasses equality of opportunities.

The development of international human rights law has shown the indivisibility of the civil, political and economic, social and cultural rights. For example, the Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child incorporate the protection of both sets of rights.

Violations of Economic, Social and Cultural Rights

The notion of violation applied vigorously to civil and political rights is normally not used regarding ESC rights. The Committee on Economic, Social and Cultural Rights has developed the concept of 'minimum core obligations'. The Committee developed this concept mainly to refute the argument that lack of resources hinders fulfillment of obligations. The Committee has stated that every State has a minimum core obligation to satisfy minimum essential levels of each of the rights in the Covenant. The Committee has clarified that a State party 'in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is prima facie, failing to discharge its obligations under the Covenant'.

Thus, it can be construed that failure to fulfill minimum core obligations will be a violation of the rights enshrined in the Covenant. However, the notion of violation of ESC rights needs to be further developed. A group of distinguished experts in international law have developed principles known as the Limburg Principles. These principles provide some basic framework to develop the notion of violation of ESC rights. According to the Limburg Principles, 'A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant.'

In determining what amounts to a failure to comply, it must be borne in mind that the Covenant affords to a State party a margin of discretion in selecting the means for carrying out its objectives, and that factors beyond its reasonable control may adversely affect its capacity to implement particular rights.

A State party will be in violation of the Covenant, inter alia, if:

• It fails to take a step which it is required to take by the Covenant;
• It fails to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfillment of a right;
• It fails to implement without delay a right which it is required by the Covenant to provide immediately;
• It wilfully fails to meet a generally accepted international minimum standard of achievement, which is within its powers to meet;
• It applies a limitation to a right recognized in the Covenant other than in accordance with the Covenant;
• It deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeur;
• It fails to submit reports as required under the Covenant.'

Monitoring Mechanism

The Committee on Economic, Social and Cultural Rights was established in 1985 and is comprised of 18 members who are independent experts and serve in their personal capacity, not as representatives of Governments.

The primary function of the Committee is to monitor the implementation of the Covenant by States parties. Under articles 16 and 17 of the Covenant, States parties undertake to submit periodic reports to the Committee (within two years of the entry into force of the Covenant for a particular State party, and thereafter once every five years) outlining the legislative, judicial, policy and other measures which they have taken to ensure the enjoyment of the rights contained in the Covenant. States parties are also requested to provide detailed data on the degree to which the rights are implemented and areas where particular difficulties have been faced in this respect. The Committee has assisted the reporting process by providing States parties with a detailed 22-page set of reporting guidelines specifying the types of information the Committee requires in order to monitor compliance with the Covenant effectively (available at the UN's web site).

The Committee can also assist Governments in fulfilling their obligations under the Covenant by issuing specific legislative, policy and other suggestions and recommendations such that ESC rights are more effectively secured. The Committee decided in 1988 to prepare "General Comments" on the rights and provisions contained in the Covenant with a view to assisting States parties in fulfilling their reporting obligations and to provide greater interpretative clarity as to the intent, meaning and content of the Covenant. The most recent General Comments issued by the Committee relate to the right to work (General Comment no. 18), intellectual property rights (General Comment no. 17) and the equal right of men and women to the enjoyment of all ESC rights (General Comment no. 16).

The Committee was the first treaty body to provide non-governmental organizations (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.

Provisions

Articles 2(2) and 3: Non-discrimination

Article 2 (2) and Article 3 deal with the non-discrimination aspect. Article 2 (2) is similar to other instruments in stating that the rights should be enjoyed without discrimination on the grounds of 'race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.'

Article 3, on the other hand is more specific. It provides for the 'equal right of men and women to the enjoyment of rights…set forth in the Covenant.'

The concept of 'progressive realization' is not applicable to the non-discrimination clause and the obligation to ensure equal rights of men and women. The obligation is to ensure it immediately and not progressively.

The obligation to ensure the equal rights of men and women includes affirmative action to eliminate conditions that contribute to discrimination.

The Committee has followed the practice that discrimination is not restricted to those grounds identified under the Covenant and includes discrimination based on age, health status, or disability. The non-discriminatory clause of the Covenant covers discriminatory acts of both public authorities and private individuals.

Article 4: Limitations

Article 4, of the Covenant deals with the limitation clause. The ICESCR does not recognize any particular right to be non-derogable in the manner it is done under the International Covenant on Civil and Political Rights. However, Article 4, states that limitations imposed on the enjoyment of rights should be 'determined by law' and should be done solely for the purpose of 'promoting the general welfare in a democratic society.'

Article 2 (1): Obligation of States

Article 2 (1) of the Covenant deals with the obligation of States parties under the Covenant. According to the Committee on Economic, Social and Cultural Rights, 'Article 2 is of particular importance to a full understanding of the Covenant and must be seen as having a dynamic relationship with all of the other provisions of the Covenant. It describes the nature of the general legal obligations undertaken by States parties to the Covenant.'

Article 2 (1) of the Covenant states that, 'Each State party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.'

Thus, obligations of States parties are expressed through the use of terms 'undertakes to take steps,' 'to the maximum available resources,' ' achieving progressively the full realization,' and 'by all appropriate means including particularly the adoption of legislative measures.'

In contrast, these terms are not used in the civil and political rights Covenant. The Article 2 (1) of the ICCPR states that, 'Each State Party to the present Covenant undertakes to respect and to ensure to all individuals… the rights recognized in the present Covenant….' It is normally argued that the ICESCR does not belong to the same genre as that of the civil and political rights. Hence, it is important to understand the meaning of terms used in Article 2(1) of the ICESCR to comprehend the obligations of states under the Covenant.

Obligation of Conduct and Obligation of Result

The Committee on Economic, Social and Cultural Rights has made it clear that the obligations of States parties include both obligation of conduct and obligation of result. The International Law Commission has formulated these two categories and the Committee has referred to it to elaborate on the obligations of States parties under the Covenant.

Obligation of conduct means that, a State has to undertake a specific step. For example, prohibiting forced labour is an act of conduct. Obligation of result means attaining a particular outcome through active implementation of policies and programmes. However, conduct and result cannot be separated. The concepts of obligation of conduct and result provides an effective tool for monitoring the implementation of ESC rights. It also shows that realization of ESC rights is a dynamic process involving both immediate and long-term intervention.

Meaning of 'Undertakes to Take Steps'

The use of the term 'Each State Party . . . undertakes to take steps,' in Article 2 (1) of the ICESCR is normally construed as implying progressive implementation of the Covenant. However, it should be noted that a similar term is used in Article 2 (2) of the ICCPR and in Article 2 (1) of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Thus, the term cannot be construed to imply progressive implementation. In fact, the Committee on Economic, Social and Cultural Rights has clarified that, 'while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably short time after the Covenant's entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant.'

Meaning of 'By All Appropriate Means, Including Particularly the Adoption of Legislative Measures'

The Committee on Economic, Social and Cultural Rights has recognized that States must decide the appropriate means and it may depend on the right that is being implemented. However, the Committee has stated that, 'States parties reports should indicate not only the measures that have been taken but also the basis on which they are considered to be the most "appropriate" under the circumstances.'

It is clear from the interpretation given by the Committee that the term 'all appropriate means' is linked to both conduct and result. A State party cannot avoid its obligations by merely saying that its policies are aimed at economic development and that poverty or illiteracy will be eradicated eventually.

As for the term 'adoption of legislative measures,' the Committee has stated that it by no means exhausts the obligation of States parties. A mere existence of laws is not sufficient to prove that a State party is carrying out its obligation under the Covenant.

For example, while considering the Canadian report, a member of the Committee commented that, ' When reports focused too narrowly on legal aspects, the suspicion naturally arose that there might be some gap between law and practice.'

In addition to laws, the Committee has also stressed the need for 'provision of judicial remedies with respect to rights which may, in accordance with the national legal system, be considered justifiable.'

Meaning of 'Achieving Progressively'

It is normally assumed that due to the resources required for the realization of ESC rights, they are incapable of immediate implementation. On the other hand, the Committee has stated that,

The fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant that is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal.

The Committee has made it clear that 'progressive realization' is not an escape clause. Such an interpretation provides activists an important conceptual perspective against the notion of 'gradualism' in economic policies. It means that ensuring social welfare is a gradual long-term process where the growth of the economy will benefit everyone. However, most often growth becomes an end in itself whether it is socially desirable or not. The position of the Committee seems to be that the process of economic growth should be combined with the realization of human rights.

The Committee has also concluded that 'progressive realization' includes not only continuous improvement but also the obligation to ensure that there are no regressive developments. The Committee has stated that, ' any deliberately retrogressive measures . . . would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum of available resources.'

Meaning of 'To the Maximum of Its Available Resources'

The notion that economic resources are essential for the implementation of ESC rights has been the major justification for considering it secondary to civil and political rights. The Committee has acknowledged the importance of resources in fulfilling the rights but does not consider that resource availability as an escape clause. For example, it has stated that 'in cases where significant numbers of people live in poverty and hunger, it is for the State to show that its failure to provide for the persons concerned was beyond its control.'

The Committee developed the idea of 'minimum core obligations' to refute the argument that lack of resources hinders fulfillment of obligations. The Committee has observed that every State has a minimum core obligation to satisfy minimum essential levels of each of the rights of the Covenant. It has clarified that a State party 'in which a significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is prima facie, failing to discharge its obligations under the Covenant.... In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.'

The Committee has made it clear that, 'even where the available resources are demonstrably inadequate, the obligations remains for a State party to ensure the widest possible enjoyment of the relevant rights under the prevailing circumstances.' In addition, the Committee has also stated that, 'even in times of severe resource constraints . . . vulnerable members of society can and indeed must be protected by the adoption of relatively low-cost targeted programmes…

…

Rights Under the Covenant

• Article 1: The right to self-determination
• Article 6: The right to work
• Article 7: The right to enjoyment of just and favourable conditions of work
• Article 8: The right to form and join trade unions
• Article 9: The right to social security
• Article 10: Protection of the family
• Article 11: The right to an adequate standard of living (food, housing, clothing)
• Article 12: The right to enjoyment of the highest attainable standard of health (physical and mental)
• Article 13: The right to education
• Article 15: Cultural rights, intellectual property rights

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