2. Strategic Litigation and Legal Advocacy
Extra territorial Obligation (ETOs) increasingly entrenched in human rights norms
Our work on ETOs during 2018 continued to ensure that ETOs are increasingly monitored by treaty bodies as a matter of routine, including the Human Rights Committee; the Committee on Economic, Social and Cultural Rights; the Committee on the Elimination of Discrimination against Women (CEDAW); and the Committee on the Rights of the Child.
The resulting Concluding Observations on ETOs attained through the parallel reporting process laid the foundation for strong ETO language being included in several recently adopted General Comments and General Recommendation, including General Comment No. 36 on the right to life adopted by the Human Rights Committee; General Comment No. 24 on businesses and human rights was adopted by the Committee on Economic, Social and Cultural Rights; and General Recommendations No. 34 on rural women and No. 35 on gender-based violence against women adopted by CEDAW.
Results are periodically published in our Working Paper on UN pronouncements related to ETOs which is disseminated widely amongst advocates and practitioners around the world.
Systemic social rights violations recognised by the UN Human Rights Committee
GI-ESCR led advocacy to ensure the recently adopted General Comment No. 36 on the right to life under the International Covenant on Civil and Political Rights (ICCPR) included addressing systemic violations of certain aspects indivisible with social rights, including homelessness and denial of access to health care, food, water, and sanitation.
The General Comment embraces a more fulsome understanding of the right to life and insists on the entitlement of individuals to enjoy a “life with dignity” (para 3). In a strong endorsement of the indivisibility of all rights, the new General Comment also discusses the economic and social dimensions of the right to life, and the implications for the right to life of environmental degradation, climate change and sustainable development. Taken together, these represent significant developments in human rights jurisprudence and an expansion of opportunities for access to justice for millions of people living in poverty, given the special, non-derogable, status of the right to life and the wide ratification of the ICCPR and its Optional Protocol.
Importantly, this broad definition of the right to life is considered justiciable under the Optional Protocol to the Covenant. Earlier drafts of the General Comment attempted to limit justiciability, for example by requiring individuals to establish that their individual rights had been “directly violated” by acts or omissions of States or were under “a real and personalised risk of being violated.”
The final text solidifies a long-term goal of the ESC rights movement; to ensure that individual complaints dealing with social aspects of civil and political rights are legally enforceable against the 116 States that are party to the Optional Protocol to the ICCPR. The General Comment also has important implications for the justiciability and enforceability of ESC rights issues at the domestic level, with a significant number of States enshrining the right to life in national laws and constitutions.
The other ground-breaking aspect of the General Comment, is its recognition that environmental degradation and climate change constitute “some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life.” The relationship between the right to life and environmental degradation and climate change was not addressed in the previous General Comments on the right to life, nor has it been commonly addressed in the Committee’s recommendations to States. The new General Comment, however, says: “States must adopt measures to preserve the environment and protect it against harm, pollution and climate change caused by public and private actors” (para 62).
Our article on the Open Global Rights website explained how, through its expanding jurisprudence on the right to life, the Human Rights Committee has given advocates for economic and social rights a powerful new enforcement tool. We now plan to leverage this outcome through the State reporting procedure of the Human Rights Committee, by bringing before the Committee, violations of the right to life based on economic, social and environmental issues.
Right to social security in the context of gender and unpaid work upheld by the UN Committee on ESC Rights
GI-ESCR assisted with a third party intervention along with partners within the ESCR-Net Strategic Litigation Working Group and the ESCR-Net Women and ESCR Working Group intervention before the Committee on Economic, Social and Cultural Rights in relation to MCTC v Ecuador, a case dealing with the right to social security in the context of unpaid work and gender discrimination.
Relying on our input, the Committee found a violation of Article 9 (right to social security) and Articles 2(2) (prohibition on discrimination) and 3 (equal right of men and women to enjoyment of all economic, social and cultural rights) in conjunction with Article 9.
Our successful arguments included that:
1. States parties must ensure that existing social security systems are enjoyed without discrimination, including for women who undertake unpaid care work.
2. States parties should take positive measures to ensure social security protections for persons unable to access or benefit from existing social security systems, particularly for older women.
3. States parties must ensure that existing social security systems facilitate access to information and are subject to due process, including the right to an effective remedy.
The Committee’s decision urged Ecuador, as a party to the International Covenant on Economic, Social and Cultural Rights, to grant the woman the benefits she is entitled to as part of her right to a pension, or other social security benefits enabling her to have an adequate and dignified standard of living. The Committee also urged Ecuador to adopt legislative and administrative measures to ensure, to the maximum of its available resources, that similar situations do not occur in the future. Ecuador is now has six months to ensure that Ms. Trujillo Calero receives her social security and change policies to benefit all similarly situation women.
See the Committee’s press release, which also links to the full decision.