2. Strategic Litigation and Legal Advocacy
ESC rights litigation and legal advocacy can significantly contribute to the enforcement of ESC rights and there is a need to develop a progressive body of jurisprudence on ESC rights. Strategic litigation and other forms of legal advocacy are first and foremost aimed at holding perpetrators of human rights violations accountable and at achieving remedies for victims and survivors for those violations. Beyond that, however, GI-ESCR seeks to achieve structural and transformative change by engaging in legal advocacy with the aims of: (1) Promoting and protecting the obligation to fulfill social rights, including positive obligations, with a focus on systemic violations; (2) Demonstrating the justiciability of extra-territorial obligations (ETOs), including with respect to Member States of international financial institutions; (3) Expanding the scope of human rights protections by defining human right norms, including through the principle of indivisibility; and (4) Expanding the scope of human rights mechanisms and avenues for accountability, again including through the principle of indivisibility.
Right to social security affirmed in the context of informal domestic work in Ecuador
GI-ESCR contributed within the ESCR-Net Strategic Litigation Working Group in drafting and submitting an amicus curiae intervention to the Committee on Economic, Social and Cultural Rights (CESCR) dealing with the right to social security in Ecuador. The complaint dealt with a case in which a woman in Ecuador had been denied her retirement pension request due to a small pause in her social security contributions, which had the impact of nullifying years of subsequent contributions. The nullification was triggered by a time when she had been engaged in unpaid care work at home and unable to make regular contributions for eight months.
The intervention encouraged the Committee to apply a substantive equality perspective to its interpretation of the facts and highlight the impact of unpaid care work on access to social security – a widespread global issue predominantly affecting women who continue to undertake the majority of such work. In particular, it provided comparative materials and recommendations to support the following points:
1. States must ensure that existing social security systems are enjoyed without discrimination, including for women who undertake unpaid care work.
2. States 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 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 ultimately found that Ecuador had violated the International Covenant on Economic, Social and Cultural Rights, finding violations of article 9 (right to social security) and also articles 2(2) (non-discrimination) and 3 (equality between women and men) in conjunction with article 9. This finding was because State authorities had failed to provide adequate and timely information about the requirements for participation in the relevant social security system and because the impact of not meeting these requirements – a complete loss of pension despite years of contributions – was clearly disproportionate. Significantly, the Committee also found that the situation constituted indirect discrimination on the basis of gender given that women who engage in unpaid care work were likely to be affected disproportionately, without reasonable justification, with potentially devastating impact on their ability to enjoy an adequate standard of living during old age.
Please see: CESCR’s press release
Joint Parallel Report on Australia related to corporate accountability
Along with Inclusive Development International and Equitable Cambodia, GI-ESCR submitted to CESCR a joint Parallel Report on Australia which called attention to the case of an Australian bank which had financed the Phnom Penh sugar plantation which was responsible for the seizure and destruction of housing and land of more than 20 villages in Kampong Speu province. Many of the victims of those forced evictions lived in extreme poverty as a result of losing their land.
The report resulted in the Committee urging Australia to “take all necessary measures to ensure legal liability of companies based in or managed from the State party’s territory regarding violations of economic, social and cultural rights by their activities conducted abroad, or resulting from the activities of their subsidiaries or business partners where these companies have failed to exercise due diligence” and to “Reinforce effective mechanisms to investigate complaints filed against private companies, and take effective measures to ensure access to justice for victims.”
The Concluding Observations are now being utilised by Inclusive Development International and Equitable Cambodia to support a case before the Australian Human Rights Commission.
ETO advocacy policies and Joint Parallel Report on the Netherlands
GI-ESCR worked within the ETO Consortium Steering Committee to craft, adopt and implement one of the outcomes of the global meeting held in Buenos Aries in November 2016, namely a process whereby members of the Consortium or others can request ETO expertise and assistance from ETO Consortium members. This policy subsequently resulted in GI-ESCR getting involved with partners in Peru dealing with environmental damage caused by a Dutch energy company, including a Parallel Report to CESCR on the Netherlands and potential future litigation and capacity building.
GI-ESCR, along with partners FIAN International, Centro de Politicas Publicas y Derechos Humanos (EQUIDAD), and Pueblos Indígenas Amazónicos Unidos en Defensa de sus Territorios (PUINAMUDT), addressed human rights violations related to environmental damage in Peru caused by a Dutch energy company before the United Nations Committee on Economic, Social and Cultural Rights. The Committee was urged to call up the Netherlands to regulate its corporations to prevent human rights violations abroad and to provide victims’ access to justice in the case of such violations.
Ultimately the Committee expressed concern at reports of serious damage to the environment and to indigenous peoples livelihoods caused in Peru by a company domiciled in the Netherlands and recommended that the Netherlands:
(a) Include a formal monitoring mechanism in the National Action Plan on Business and Human Rights;
(b) Take measures to ensure compliance with human rights obligations for companies operating in the territory of the State party;
(c) Take measures to ensure physical safety and mental health of the people residing in the area of gas extraction in Groningen, as well the security and safety of their homes; provide proper compensation to the victims; and prevent future occurrences of damages related to gas extractions;
(d) Expedite an overhaul of the oil refinery industry in Curaçao with a view to averting pollution;
(e) Remove the legal and practical obstacles to holding accountable companies domiciled under the State party’s jurisdiction, for violations of economic, social and cultural rights, resulting from their operations on the national territory or abroad.
EQUIDAD and PUINAMUDT are now working with Dutch lawyers to use these Concluding Observations in support of litigation in the Netherlands.
CESCR General Comment No. 24 on business and human rights
GI-ESCR provided written comments to the Committee on Economic, Social and Cultural Rights offering ways to improve the content of the proposed General Comment on business activities.
Working within the ETO Consortium Steering Committee, GI-ESCR also coordinated input from various actors on the extra-territorial obligations section of the draft General Comment as well as advocacy in support of, and defense of, strong ETO related language.
Ultimately, the Committee adopted an authoritative reaffirmation of the ETO to protect International Covenant on Economic, Social and Cultural Rights in the context of corporations operating abroad.
Reaffirming its Concluding Observations developed over the past several years, the Committee made clear that States Parties to the Covenant are legally obligated to regulate corporations domiciled, incorporated or headquartered within their territories, or those over which they otherwise exercise control, to ensure that they respect, protect and fulfill Covenant rights throughout their operations, including their operations abroad.
The Committee also made clear that States Parties are legally obligated to ensure access to justice, including accountability and remedies, in the event such corporations detrimentally impact Covenant rights abroad.
According to Bret Thiele, Co-Executive Director of GI-ESCR “this is a welcomed reaffirmation of what civil society has brought to the Committee’s attention over the past several years.” He stated that such a positive result demonstrates the efficacy of a concerted civil society push, “the Global Initiative for Economic, Social and Cultural Rights and other members of the ETO Consortium, including in particular FIAN International and several of its national sections, worked with several affected communities around the world to ensure that States are held accountable when their respective corporations impact Covenant rights abroad.”
“With this new General Comment, we hope that monitoring of and accountability for corporate actions abroad are systematically applied throughout all periodic reporting and complaints under the Covenant” Thiele added.
The General Comment is available HERE.
The relevant Office of the High Commissioner for Human Rights Press Statement is available HERE.
A comprehensive collection of UN pronouncements on ETOs is available HERE.
Committee on Civil and Political Rights – Draft General Comment on the Right to Life
Continuing our work to influence the new General Comment on the right to life, being drafted by the United Nations Committee on Civil and Political Rights, we responded to the Committee’s further call for submissions on its revised draft General Comment. Our submission targeted 3 main issues:
• Welcoming the Committee’s broadened understanding of the right to life as extending to living a life ‘with dignity,' but urging the Committee to more explicitly recognise the economic and social elements of the right to life;
• Welcoming the recognition of connections between the right to life and environmental degradation and climate change, but suggesting some textual changes to underline that in some circumstances States obligations with respect to the right to life may require taking action to protect the environment or to address the causes of climate change; and
• Welcoming the discussion of ETOs in the draft General Comment and suggesting additions to recognise States’ extra-territorial obligations with respect to corporations domiciled within its jurisdiction but affecting the right to life outside its jurisdiction.
The Committee is now under-taking a final reading of the draft General Comment and will present a final document probably in its third session next year (October 2018), but has, at our urging, removed language that could have been detrimental for bring individual complaints related to systemic violations.
Expert Group Meeting with Special Rapporteur on the Right to Adequate Housing
GI-ESCR participated in a two-day Expert Groups Meeting with the Special Rapporteur on the Right to Adequate Housing. The meeting was to strategise on how to contribute to the #MakeTheShift campaign aimed at shifting the concept of housing from a commodity or financial context to one grounded in human rights. GI-ESCR committed to participating in the campaign with a focus on helping with Side Events in Geneva and parallel reporting to treaty bodies and to take the lead on the right to adequate housing by linking local actors to Geneva-based human rights mechanisms.
ESCR-Net Webinar on using UN mechanisms
GI-ESCR conducted a one-hour ESCR-Net Strategic Litigation Working Group webinar on successful use of and strategies for using UN mechanisms. Discussed the strategy used by GI-ESCR to produce progressive interpretations and normative development of economic, social and cultural rights, including on how results based on this strategy create the foundation for subsequent successful strategic litigation. Real world examples of advancing the principle of indivisibility and extra-territorial obligations were provided and previous and ongoing litigation was discussed.
GI-ESCR participated in ESCR-Net Strategic Litigation Working Group Steering Committee including finalising its 2017 – 2018 Work Plan.
GI-ESCR also participated in the ETO Consortium Steering Committee, including monitoring implementation of the ETO Consortium Strategic Plan and developing a Plan of Action for 2018 through 2020.
We continue to update and publish its Working Paper containing United Nations (UN) pronouncements addressing extra-territorial obligations.