19 Overview of the Committee on Economic Social and Cultural Rights

Prof. Rehan Abeyratne

Introduction

The Committee on Economic, Social and Cultural Rights (CESCR) is the primary enforcement mechanism of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR tasks the Economic and Social Council of the United Nations (UN) with reviewing state compliance with the Covenant. Since 1985, the CESCR has assisted the Economic and Social Council in this process. In 2013, the CESCR was empowered to hear individual complaints alleging state violations of economic, social and cultural rights.

This chapter will introduce readers to the CESCR. It describes the Committee’s origin and structure, the concept of progressive realization, and some of the challenges in economic, social and cultural rights enforcement.

Learning Outcomes:

After completing this chapter, readers should know and understand:

• The origin and structure of the CESCR
• The concept of progressive realization
• The challenges in enforcing economic, social and cultural rights

The Origin and Structure of the CESCR

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty that sets forth and seeks to enforce a range of economic, social and cultural rights (ESCRs). It was adopted by the UN General Assembly in 1966 and entered into force in 1976. As of June 2015, 164 states were party to the Covenant. Articles 16 and 17 set forth the Covenant’s enforcement mechanism. Article 16 requires states parties to submit “reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” in the Covenant. Article 17 provides that states file their reports in stages, in accordance with a programme established by the Economic and Social Council, and that these reports may include “factors and difficulties” affecting the fulfillment of the Covenant’s provisions.

The original enforcement mechanism of the ICESCR was the Economic and Social Council – a political organ of the UN. However, it became clear over time that the Council did not possess the capacity to effectively monitor state compliance. As a result, the Committee on Economic, Social and Cultural Rights was created in 1985. The Committee is an independent panel of 18 experts, who are elected for four-year, renewable terms by states parties. It issues decisions on complaints and monitors the implementation of the ICESCR. The Committee meets officially for a three-week session in Geneva every year, but in practice meets more regularly (usually three times per year). All states parties to the Covenant must submit regular reports to the Committee on how social, economic and cultural rights are being implemented. They must report initially within two years of accepting the Covenant and every five years thereafter according to guidelines set forth by the Committee. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations.”

The ICESCR did not originally include a mechanism to receive and adjudicate upon individual complaints against states parties. However, on 10 December 2008, the UN General Assembly adopted the Optional Protocol to the ICESCR. This empowers the Committee on Economic, Social and Cultural Rights to hear individual complaints. The Protocol entered into force on 5 May 2013. As of June 2015, 20 states were party to the Optional Protocol.

Progressive Realization

Article 2 of the ICESCR sets forth the general obligations of states parties to the Covenant. These obligations are framed in broad terms to account for differences in state capacity and resources. Article 2(1) declares that each state party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” In other words, the rights set forth in the Covenant are subject to progressive realization by states parties.

The concept of progressive realization is central to the enforcement of economic, social and cultural rights. It is based on a distinction between “negative” and “positive” rights. In short, civil and political rights, such as the right to free speech and the right to life, are considered “negative” rights because they can be largely fulfilled through state inaction. For instance, if the state refrains from passing laws that limit speech, then the right to free speech is largely upheld. By contrast, ESCRs are viewed as “positive” rights, meaning that the state must take affirmative steps to fulfill them.

The distinction between “negative” and “positive” rights is contested and, in many ways, is problematic. Nonetheless, it is important to understand this distinction in the context of Article 2 of the ICESCR. Since ESCRs as “positive” rights require greater state resources for their fulfillment, the drafters of the Covenant inserted into Article 2 the language of progressive realization to take into account differences in state development and capacity.

The core rights protected by the ICESCR are located in Articles 6-15. They include: the right to work (Art. 6), the right to just and favorable working conditions (Art. 7), the right to form and join trade unions (Art. 8), the right to social security (Art. 9), the right to family protection (Art. 10), the right to an adequate standard of living, which includes adequate food, clothing, and housing (Art. 11), the right to health (Art. 12), the right to education (Art. 13), and the right to engage in, and benefit from, culture life (Art. 15).

Each of these rights is phrased in broad terms. For instance, Article 10 protects not only the freedom to marry who one chooses, but extends special protection to mothers “during a reasonable period before and after childbirth” and to children, who are to be “protected from economic and social exploitation.” Article 11 requires states to recognize that adequate food, clothing, and housing constitute part of the right to an adequate standard of living and calls upon states to take several measures, including improvements to food production, distribution, and trade, in an effort to recognize “the fundamental right of everyone to be free from hunger.”

However, this language of progressive realization in the context of economic, social and cultural rights should not be misunderstood. The latitude given to states in Article 2(1) of the ICESCR does not imply that the rights within the Covenant are merely aspirational. To the contrary, it imposes binding legal obligations on states parties, including (1) an obligation to take steps towards the continuous improvement of economic, social and cultural conditions and (2) an obligation not to take retrogressive measures unless under specified circumstances.

The first of these obligations emerge from the definition of the term “progressive,” which means, “making a continuous forward movement.” Thus, states parties must continuously take steps forward to achieve the full realization of the rights recognized in the ICESCR. This obligation is immediately applicable and is not subject to limitation. Thus, states are not simply required to take measures in the future to improve economic, social and cultural conditions. Rather, regardless of their level of development, states parties must take steps immediately to achieve the full realization of the rights enshrined in the Covenant.

The second concept emerges from Maastricht Guideline No. 14 on Violations of Economic, Social and Cultural Rights. It states, “[V]iolations of economic, social and cultural rights can occur through the direct action of states […]. Examples of such violations include: […] (e) the adoption of any deliberately retrogressive measure that reduces the extent to which any such rights are guaranteed;

(g) the reduction or diversion of specific public expenditure, when such restriction or diversion results in the non-enjoyment of such rights and is not accompanied by adequate measures to ensure minimum subsistence rights for everyone.”

The Committee on Economic, Social and Cultural Rights in its General Comment 3 (1990) noted, “[A]ny 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 available resources.” A ‘deliberate retrogressive measure’ means any measure that reduces the level of protection accorded to the rights contained in the Covenant, which is the consequence of an intentional decision by the state. This may occur, for example, if a state:

a) Adopts any legislation or policy with a direct or collateral negative effect on the enjoyment of the rights by individuals or introduces legislation that discriminates in the enjoyment of rights.

b) Abrogates any legislation or policy consistent with these rights, unless obviously out-dated or replaced with equally or more consistent laws or compensatory measures.

c) Makes an unjustified reduction in public expenditures devoted to implementing economic, social and cultural rights, in the absence of adequate compensatory measures aimed to protect injured individuals.

Challenges in Enforcing Economic, Social and Cultural Rights

It is worth reemphasizing that the ICESCR did not initially include a mechanism to receive and act upon complaints against states parties. While such a mechanism was discussed in the drafting process, it was thought to be unworkable in light of the nature of rights protected by the ICESCR. As discussed above, economic, social and cultural rights (ESCRs) are generally viewed as “positive” rights, requiring states to expand resources and take affirmative measures to fulfill them.

With such wide latitude given to states parties, it did not seem wise to include a complaint-filing mechanism. Indeed, progressive realization allows states to proceed at their own pace, in light of resource constraints and developmental objectives, to fulfill their obligations in the long-term. Therefore, states were allowed to forego the complete fulfillment of ESCRs in the short-term – a practice that would be defeated by instituting an individual complaint mechanism.

There was also a related concern that, compared to civil and political rights, it is difficult to determine precisely when ESCRs are violated. Imagine, for instance, that a state provides adequate food and shelter to 80 percent of its citizens, but does not have the resources to provide those basic needs to the remaining 20 percent. If resources were allocated to fulfill the nutritional and housing needs of those remaining citizens, they would have to be taken from state subsidies to important industries. According to the state, if this redistribution took place, it would cause a severe economic recession and potentially lead to even more citizens being deprived of basic needs. Article 11 of the ICESCR requires states to take measures towards providing all citizens with an adequate standard of living. This includes adequate food and shelter, among other basic needs. So what is the state to do in this situation? Is it “violating” Article 11 with respect to the 20 percent of its citizens who do not have adequate food and shelter? And if it took measures to fulfill the rights of these citizens, would it then “violate” the same rights vis-à-vis other citizens who are deprived of basic needs because of a state-induced economic recession?

These are very complex questions and, in light of this complexity, the drafters of the ICESCR allowed states to report on their own progress, including difficulties faced in the implementation of the obligations within the Covenant. Note, by contrast, that the International Covenant on Civil and Political Rights (ICCPR) has always permitted complaints to be filed. The Human Rights Committee of the ICCPR – an expert body specifically tasked to enforce the ICCPR – is empowered to examine complaints filed against a state party either by other states or by individuals whose rights are violated by that state. This fits with the widespread view that it is more straightforward to judge violations of civil and political rights and that these rights are readily enforceable (not subject to progressive realization).

The CESCR has struggled to ensure state compliance with the self-reporting procedure in Article 16 of the ICESCR. Several states have not submitted reports by the deadline set by the Committee. In 1996, for instance, 88 states parties were overdue in their reports, while an additional 17 states had not filed a report in ten years. In addition, because states report on themselves, there have been complaints that states exaggerate their progress and, in some instances, minimize their setbacks in implementing their obligations under the Covenant. The Committee recognized this shortcoming and, in 1992, invited “all concerned bodies and individuals to submit relevant and appropriate documentation” with respect to each state’s compliance with the ICESCR. This has allowed NGOs to participate in the reporting process. While NGOs are not permitted to participate in the Committee’s dialogue with states parties, they may submit relevant written information to the Committee and give oral presentations at the beginning of each of the Committee’s sessions with respect to state compliance with the ICESCR. This greatly increases accountability, as the Committee is no longer forced to rely on the state’s claims of its own progress with respect to fully realizing the ESCRs in the Convention. The input of NGOs allows the Committee to gain a more accurate view of state compliance and perform its role more effectively.

Moreover, as discussed, the Optional Protocol to the ICESCR (2008) now permits the Committee to hear individual complaints against states parties. However, since it only has 20 states parties, it does not yet have the authority to receive individual complaints against a vast majority of states. Perhaps over the next decade or so, the Committee will be able to expand its scope of jurisdiction and, like the Human Rights Committee of the ICCPR, hear complaints against a majority of states in the international community.

Summary

The Committee on Economic, Social and Cultural Rights (CESCR) has become the primary enforcement mechanism of the International Covenant on Economic, Social and Cultural Rights (ICESCR). It was not always so. Article 17 of the Covenant identified the Economic and Social Council – a political organ of the United Nations – as the body that would establish a programme under which states parties, as per Article 16, would report “on the measures which they have adopted and the progress made in achieving the observance of the rights recognized” under the Covenant. Over time, however, it became evident that the Council could not effectively monitor state compliance. The Committee on Economic, Social and Cultural Rights was therefore created in 1985 to assist in the work of the Council. The Committee is an independent panel of 18 experts, who are elected for four-year, renewable terms by states parties. All states parties to the Covenant are required submit regular reports to the Committee on their progress in implementing economic, social and cultural rights within their jurisdictions.

As per Article 2(1) of the ICESCR, the rights enshrined in the Covenant are subject to progressive realization. This provision requires that every state party “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means.” While compliance with these rights may vary among states parties due to the availability of resources, the ICESCR does impose legally binding obligations. Thus, it is incorrect to characterize economic, social and cultural rights as merely aspirational. The Covenant imposes an obligation on each State party to take steps towards the continuous improvement of economic, social and cultural conditions and a further obligation not to take deliberately retrogressive measures.

Due, in part, to difficulties in conceptualizing and measuring progress in the fulfillment of economic, social and cultural rights, the CESCR has struggled to ensure state compliance with the self-reporting procedure under Article 17 of the Covenant. Several states have not submitted reports by the deadline set by the Committee. In addition, because states report on themselves, some states have exaggerated their progress or minimized their setbacks in fulfilling the rights within the Covenant. The Committee recognized this shortcoming and, in 1992, invited “all concerned bodies and individuals to submit relevant and appropriate documentation” concerning each state’s compliance with the ICESCR. This has allowed NGOs to participate in the reporting process, increasing its accuracy and transparency. In addition, since 2008, the CESCR has been empowered to hear individual complaints through the Optional Protocol to the ICESCR.

Reference

• The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, U.N. ESCOR, 24th Sess., Agenda Item 3, U.N. Doc. E/C.12/2000/13 (2000).
• Committee on Economic, Social and Cultural Rights, General Comment 3: The Nature of States parties’ Obligations, U.N. Doc. E/1991/23, Annex III at 86 (1991).
• UN Doc. A/2929, in UN GAOR, C.3, Tenth Sess. (1955), Annexes (Agenda Item 28, Part II), para. 41. Matthew Craven, “Introduction to the International Covenant on Economic, Social and Cultural Rights”, University of Minnesota Human Rights Resource Center, available at: http://www1.umn.edu/humanrts/edumat/IHRIP/circle/modules/module3.htm#_edn16. CESCR, Report on the Sixth Session. ESCOR, 1992, Supp. No. 3, U.N. Doc. E/1992/23, para. 386.
• Craven, “Introduction to the International Covenant on Economic, Social and Cultural Rights”.
• CESCR, Report on the Sixth Session. ESCOR, 1992, Supp. No. 3, U.N. Doc. E/1992/23, para. 386.