Geneva Update ESC Rights @ 39th session of the UN Human Rights Council
This Update provides a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 39th session of the Human Rights Council (September 2018). It provides information on the following ESC rights initiatives:
The new UN High Commissioner for Human Rights
New UN High Commissioner for Human Rights, Michelle Bachelet, made her first appearance before the Human Rights Council as High Commissioner. In her opening remarks, High Commissioner Bachelet promoted multilateralism and consensus within the Council. She also spoke of the importance of sustainable development, mentioning several times the 2030 Agenda which she sees as a ‘tremendous opportunity for greater integration of human rights goals, including the recommendations of the human rights mechanisms, into national policies and the work of the UN’. Whilst not affording significant attention to ESC rights, she did emphasise the indivisibility of human rights, saying for instance: ‘Access to the best quality education, and to economic and social rights, helps diminish despair, mistrust and violent extremism’. The High Commissioner also referred to the need to protect rights from and mitigate the effects of climate change.
In relation to country situations, she also highlighted the links between conflict and economic and social rights, emphasising the violations of social and economic rights in Venezuela and longstanding social and economic grievances as root causes of the situation in Iraq.
Right to water and sanitation
The annual report of the Special Rapporteur on the human rights to safe drinking water and sanitation, Mr Léo Heller, was presented at this session (A/HRC/39/55), together with the reports of his missions to India (A/HRC/39/55/Add.1) and Mongolia (A/HRC/39/55/Add.2).
The Report of the Special Rapporteur focuses on the right of access to water and sanitation for forcibly displaced persons. It begins by exploring the categories of displaced persons such as those displaced because of persecution, armed conflict, violence, human rights violations, extreme poverty, discrimination, climatic change or forced evictions. The report emphasizes the fact that such groups include cross border displacements as well as internally displaced persons (IDPs).
The Special Rapporteur premises his analysis on the normative content of human rights which include, accessibility, quality, affordability, availability, acceptability, privacy and dignity, as well as the general human rights principles of participation, equality and non-discrimination, sustainability, progressive realization and access to remedies.
The report considers first persons en route, in transit, at reception and at the destination, whom he notes ‘are vulnerable, because they require access to water and sanitation immediately and continuously in unfamiliar places’. The report notes that 130,000 people died between 2011 and 2017 en route through the Sahara to Europe due to lack of food and water. Under International law, refugees and displaced persons should be subject to the same treatment as nationals, but this is frequently not the case.
The Special Rapporteur underlines that limited resources should never be a justification for failure to apply non-discrimination especially in the case of developed States. Further, he insists ‘States, particularly economically developed States, have no justification for providing forcibly displaced persons with substandard water and sanitation services or for using poor living conditions as a means to discourage them from entering the territory or to expel them’.
On emergency situations, the Special Rapporteur considers those who are in camps and those who are outside camps. In camps, the standard of services provided depends on the resources available and humanitarian actors normally prioritise ‘life-saving’ efforts. In addition, many States apply the ‘Sphere standards’ which are a set of voluntary minimum standards applicable in humanitarian responses. However, it is noted that most States narrowly construe the meaning of ‘lifesaving situations’ which negatively limits access to water and sanitation for refugees.
The report notes that more refugees and internally displaced persons live outside camps yet most assistance flows to camps. A 2011 World Bank and UNHCR report states that lack of access to water is the fifth most severe problem faced by refugees outside of camps. The Report however concedes that providing humanitarian assistance outside camps is problematic and more research is needed on how to extend such support.
In the case of protracted displacement, humanitarian assistance must be coupled with development assistance and should go beyond offering support only to the refugees or IDPs, and extend to the entire community. The Special Rapporteur considers the ‘humanitarian-development nexus’ and the difficulties that arise when there are parallel interventions from the development and humanitarian sectors, which have different objectives and approaches. He identifies the human rights principles that are vital to the humanitarian-development nexus: ‘sustainability, participation, equality and non-discrimination and progressive realization’. He also underlines the importance of building resilience and emergency preparedness by taking steps to realise the rights to water and sanitation, including establishing mechanisms for participation, access to information, remedy and accountability.
The recommendations of the Special Rapporteur include: building resilience by empowering communities at risk of disaster; development of an international multi-year program to provide water and sanitation in emergency situations; prioritising the needs of those at most risk; and States should put in place a non-discriminatory, human rights-based framework to provide water and sanitation before, during and after emergencies, armed conflict or disaster.
The Council’s annual resolution on the rights to water and sanitation (A/HRC/RES/39/8) was adopted after a vote that passed easily with only 1 State voting against (Kyrgyzstan) and 2 abstaining (Afghanistan and Ethiopia).
The resolution welcomes the report of the Special Rapporteur, on the human rights to water and sanitation of forcibly displaced persons, but it does not take up that theme for the subject of the resolution.
It contains new wording on menstrual hygiene:
‘address the widespread stigma and shame surrounding menstruation and menstrual hygiene by ensuring access to factual information thereon, addressing the negative social norms around the issue and ensuring universal access to hygienic products and gender-sensitive facilities, including disposal options for menstrual products.’
The Council calls on States to:
implement the SDGs including Goal 6, in accordance with international law and to continuously monitor and regularly analyse the status of realisation of these rights;
ensure the progressive realization of the human rights to safe drinking water and sanitation for all in a non-discriminatory manner while eliminating inequalities in access;
promote both women’s leadership and their full, effective and equal participation in decision-making on water and sanitation management, to ensure that a gender-based approach is adopted in relation to water and sanitation programmes;
make efforts to mitigate the disproportionate impact of water-, sanitation- and hygiene-related diseases on children; and
provide effective accountability mechanisms to ensure that all water and sanitation service providers, including private sector providers, respect human rights.
Right to health
Human Rights Council resolution A/HRC/RES/36/13 called on the High Commissioner for Human Rights to organize a consultation on the fulfilment of human rights in the context of mental health. The consultation was held on the 14th and 15th of May 2018 and brought together member States, UN agencies, special procedures and civil society, including persons using mental health services, persons with mental health conditions and persons with psychosocial disabilities, and their representative organizations. The report of that meeting (A/HRC/39/36) was submitted to the Council at the 39th session.
The consultation evaluated the status of human rights for persons with mental and psycho-social disabilities. Amongst the notable concerns raised were discrimination, stigmatization, over-medicalization and the use of force. It was noted that forced treatment, medication and institutionalization continue to be prevalent. Some participants expressed concern that the Council of Europe’s proposed Additional Protocol to the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (the Oviedo Convention) would legitimize involuntary treatment of persons with psycho-social disabilities, in violation of the Convention on the Rights of Persons with Disabilities (CPRD).
Participants noted that persons with disabilities in both the Global North and South continue to face barriers in accessing housing, employment, social protection and political participation. They also highlighted that stereotypes and discrimination within the workplace due to lack of awareness on the part of employers and recruiters, remained high for persons with mental and psycho-social disabilities.
Participants were pleased that resolution 36/13 moves away from the perpetuation of violations through arbitrary institutionalization, exclusion and segregation and towards a human rights-based approach. A human rights-based approach emphasizes supportive and enabling environments at home, at school, in the workplace and in health-care settings, which address the underlying determinants of health, such as poverty, discrimination, social exclusion and violence.
Despite this progress, the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, noted that coercion and exclusion remained the rule in the majority of mental health systems, particularly in developed countries, and that involuntary interventions, such as electroconvulsive therapies, psychosurgery, forced sterilization and other invasive, painful and irreversible treatments, continued to be permitted, contrary to the CRPD. She said this kind of behaviour amounts to torture and ill-treatment which is prohibited by the UN Convention against Torture (UNCAT). UNICEF said that its research revealed that mental health problems were many times a result of mistreatment, emotional neglect and seclusion of children.
Participants concluded that there could be no realization of Agenda 2030 without addressing mental health and that mental health without human rights amounted to oppression. They recommended better political and economic commitment from States in achieving a rights-based approach to mental health. In so doing, States should re-examine the biomedical approach to mental health and ensure that all care and health services are based on free and informed consent without coercion.
They also recommended that community-based, participatory, and culturally respectful mental health care approaches are adopted to encourage people to receive support as close to home as possible. States should invest in data collection and research on mental health and adopt legislation that is human rights-based and conforms with Article 12 of the CRPD.
The report of the Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, to the 39th session of the Human Rights Council addresses the situation of workers affected by occupational exposure to toxic and hazardous substances (A/HRC/39/48). The Rapporteur also presented his mission reports on Sierra Leone (A/HRC/39/48/Add.1) and Denmark and Greenland (A/HRC/39/48/Add.2).
The report commences by outlining the human rights relevant to the issue, such as the right to safe and healthy working conditions (articles 6 & 12 ICESCR and ILO protections), rights to information, participation and association (ICCPR articles 19, 22, 25) and the right to an effective remedy. It also considers how particular groups are at heightened risk, like children, women and workers with disabilities.
Amongst the most notable impacts of poor waste management according to the report, is the number of annual deaths from unsafe and unhealthy exposure of workers to hazardous substances which stands at approximately 2,780,000 people. In addition there are an estimated 160 million cases of occupational diseases per year, 70% of which are preventable cancers.
The report notes twelve broad challenges to the protection of workers from exposure to toxic waste and hazardous substances, including inadequate standards of protection, monitoring and enforcement gaps and exploitation of those most at risk. The report found that the poor, women, children and migrant workers are at higher risk of exploitation and exposure to hazardous substances at work. Related to this is the challenge of opaque supply chains and transfer of hazardous work to less developed States where environmental protections are low. These two challenges are discussed in the report on Denmark which notes the failure to hold Danish corporations accountable for their actions in States with less robust worker’s and environmental protections. Another challenge that stands out and keeps recurring is the failure to protect the right to information for workers. The report notes that without this right, workers cannot protect themselves against exposure to hazardous substances, nor access justice and remedies.
In conclusion the Special Rapporteur states:
The exposure of workers to toxic substances can and should be considered a form of exploitation and is a global challenge, with countries of all levels of development playing a role in the problem. States, business actors and international organizations can eliminate or minimize exposures and must do so with urgency.
He proposes ‘Principles on duties and responsibilities to prevent exposure’ intended to help States, businesses and other key actors respect and protect workers from toxic occupational exposures and to provide remedies for violations of their rights. The principles are grounded in international human rights law and build upon the UN Guiding Principles on Business and Human Rights, ILO instruments and international agreements on toxic chemicals and wastes. They will be further elaborated through a consultative process and presented at a future session of the Human Rights Council.
Importantly, the Principles recognise the responsibility of the State and business enterprises to protect consumers and workers, throughout the entire supply chain, from exposure to hazardous substances. The Principles also call for the promotion of civil and political rights like rights to information, association and assembly, as essential to the protection of workers. Finally, the report is unequivocal in its call to States to assert a cross border mandate in a bid to protect workers worldwide from exposure to hazardous substances.
Right to development
At this session, the Special Rapporteur on the right to development, Mr Saad Alfarargi, presented his report on equality and the right to development, including how this links to the equality goals and targets of the Sustainable Development Agenda (A/HRC/39/51).
Mr Alfarargi has not undertaken any country missions since he commenced his mandate activities in March 2017. He has instead carried out 2 regional consultations (Africa and Europe), pursuant to the request of the Human Rights Council contained in resolution 36/9. The consultations aim ‘to identify good practices in designing and implementing policies and programs to advance human development through the human rights based approach. Looking at local level human development initiatives and experiences would help bring light on context-specific indicators and monitoring methodologies.’ A further regional consultation, for Latin America, will take place in October 2018 in Panama, and for the Asia/Pacific, in Bangkok in December.
The Special Rapporteur will undertake his first country mission to Cabo Verde in November. Civil society organisations are encouraged to get in touch with the mandate to provide information about the right to development in Cabo Verde.
In his report, the Special Rapporteur on the right to development, ‘explores the connection between the right to development and equality, the consequences of inequalities within countries on the enjoyment of the right to development and provides recommendations on contributing to the promotion, protection and fulfilment of the right to development in the context of the implementation of the equality related goals and targets of the 2030 Agenda for Sustainable Development’.
The report contains an interesting discussion on income inequality. In considering why income inequality matters, the Special Rapporteur surveys a large body of empirical evidence showing that inequality exacerbates poverty and negatively impacts the enjoyment of ESC rights and civil and political rights. The Special Rapporteur is concerned that inequality is a major obstacle to the right to development as it ‘threatens long-term social and economic development and impedes poverty reduction. …. and has an impact on the ability of individuals and communities to participate in, contribute to and enjoy economic, social, cultural and political development.’ He emphasizes the right to participation and the importance of access to information, which he notes ‘will also help in designing, implementing, monitoring and evaluating the results of development programmes and projects in a meaningful way and increasing their effectiveness and efficiency’ and will lead to greater accountability.
The report goes on to note initiatives by governments in the context of the SDGs that promote equality and in particular highlighting initiatives that took participatory approaches and focused on consultation and inclusion.
In his recommendations, the Special Rapporteur notes the urgent need for disaggregated data in order to make inequalities visible and enable the identification of who is being left behind. Such data is also crucial for targeted, evidence-based policy making and for monitoring, evaluation and progress tracking. He stressed the importance of taking a human rights-based approach to data collection. He also recommended States enhance participation and consultation in policy making, including through budgeting for civil society participation and ensuring access to information.
In addition, the Secretary-General and the High Commissioner for Human Rights presented their annual report on the activities of the OHCHR on the promotion and realization of the right to development (A/HRC/39/18), covering the period from June 2017 to May 2018. The report also provides an analysis of the implementation of the right to development, taking into account existing challenges and making recommendations on how to overcome them. It considers the inter-State dimension of Sustainable Development Goal 10, the need to reduce inequality among countries, and how it links with the right to development and to the other Sustainable Development Goals, in particular Goal 17.
After analysing the application of the human rights treaties and the Declaration on the right to Development, to the issue of inequality between countries, it finds that international law provides a useful normative framework for addressing this issue, particularly the principles of self-determination and international cooperation (under ICESCR).
The report goes on to make a number of recommendations to address inequality between countries, including:
Promote and maintain the policy space of developing countries to ensure that the management of their natural resources contributes to the realization of the right to development and sustainable development;
Undertake human rights impact assessments in relation to structural adjustments, austerity measures and other prescriptions for economic reform; and
Encourage sovereign debt relief initiatives that benefit developing countries and cooperation to counter vulture funds that disrupt the capacity of States to negotiate debt restructuring.
The Council also had before it the report of the Intergovernmental Working Group on the Right to Development on its nineteenth session which was held in Geneva from 23 to 26 April 2018 (A/HRC/39/56).
The Council adopted its annual resolution on the right to development (A/HRC/RES/39/9) and tasked the Intergovernmental Working Group on the right to development, with commencing ‘the discussion to elaborate a draft legally binding instrument on the right to development through a collaborative process of engagement, including on the content and scope of the future instrument’. The Chair of the Working Group was asked to prepare a draft legally binding instrument, ‘to serve as a basis for substantive negotiations on a draft legally binding instrument, commencing at its twenty-first session’.
This is a significant step forward for this Working Group which was established by a resolution of the Economic and Social Council in 1998 and held its first session in 2000. The Working Group has had a controversial history and reached a ‘political impasse’ which has stalled its work developing ‘operational criteria and sub-criteria’.
This resolution mandating work towards a legally binding treaty was voted on, attracting 30 votes for, 12 against and 5 abstentions. As in previous years, broadly speaking, States from the Global South supported the resolution and States from the Global North did not.
With the Council delivering the Working Group a solid mandate to move forward on the negotiation of a legally binding instrument on the right to development, it will be interesting to see whether the political impasse is resolved. The first challenge will be for the Chair to present a credible draft instrument for discussion.
SDGs, Development and Human Rights
It is becoming increasingly common for reports, resolutions and panel discussions of the Human Rights Council to address the link between human rights and the SDGs and this continued to be the case for the 39th session of the Human Rights Council.
Initiatives relating to the SDGs included: a summary report of an inter-sessional expert meeting on gender equality, women's rights and the 2030 Agenda; a resolution on local government, human rights and the SDGs; the half day discussion on the rights of indigenous peoples and the resolution on the same topic; and the report of the Independent Expert on the enjoyment of all human rights by older persons.
An intersessional expert meeting to consider gaps in, challenges to and best practices aimed at the full enjoyment of human rights by all women and girls and the systematic mainstreaming of a gender perspective into the implementation of the 2030 Agenda for Sustainable Development, was held in May 2018, pursuant to the mandate in Council resolution A/HRC/RES/36/8. The High Commissioner for Human Rights submitted a summary report of that expert meeting to the 39th session (A/HRC/39/34).
The discussion commenced with an analysis of the linkages between the three dimensions — economic, social and environmental — of the 2030 Agenda through the lenses of gender equality and women’s rights. Experts discussed: the role of women in agricultural productivity; the importance of having a strong focus on gender equality in harnessing the demographic dividend in the implementation of the 2030 Agenda; the contribution of indigenous women to the sustainable development of their peoples and the planet; and integrating a gender perspective and women’s rights in responses to climate change.
The expert meeting participants emphasized that women and girls are not a homogeneous group and it is important to focus on women and girls who are most marginalized owing to the intersecting forms of discrimination they face. Likewise, it was recognized that human beings were composed of a wide spectrum of gender identities, and thus the scope of gender equality should be understood to cover equality not only for heterosexual women and men, but also for lesbian, gay, bisexual, transgender, intersex and other non-binary persons.
Another significant theme of the expert meeting was how to capture diversity and intersectionality, to ensure no one is left behind? The importance of collecting disaggregated data was underscored and the barriers to doing so were noted. The discussion then moved to monitoring progress on gender equality and women’s rights and considered mechanisms for monitoring the implementation of the SDGs and the role of the international human rights mechanisms. The experts emphasised that the regular review processes of the human rights mechanisms were well informed by inputs from States, civil society organisations, national human rights institutions and other actors, and that the recommendations generated from their country reviews could complement the review processes for the 2030 Agenda.
The report concluded with recommendations for States, UN agencies and other stakeholders.
ESC Rights in country situations
At this session, for the first time, the Human Rights Council adopted a resolution on the human rights situation in Venezuela under item number 2 (A/HRC/RES/39/1). As well as addressing the alarming violations of civil and political rights in Venezuela, it also highlighted the devastating violations of economic and social rights.
For instance, the resolution:
Calls upon the Government of the Bolivarian Republic of Venezuela to accept humanitarian assistance in order to address the scarcity of food, medicine and medical supplies, the rise of malnutrition, especially among children, and the outbreak of diseases that had been previously eradicated or kept under control in South America.
The resolution ‘welcomes’ the report of the OHCHR entitled “Human rights violations in the Bolivarian Republic of Venezuela: a downward spiral with no end in sight”, published in June 2018. That report details serious violations of the rights to food and health in Venezuela. On health, the OHCHR documented the collapse of the Venezuelan health care system due to the State authorities’ ineffective measures or inaction to address the acute deterioration of health care facilities and equipment, the unavailability of medicines, in particular for patients with chronic diseases, and the outbreak of diseases that had been eradicated. There was also anecdotal evidence of medical equipment and medicine shortages and unsanitary facilities, leading to preventable deaths.
On the right to food, the report noted: ‘State control over food prices and foreign currency exchange, the mismanagement of confiscated arable land, State monopoly on agricultural supplies, and the implementation of social programmes without clear nutritional objectives, has resulted in critical levels of food unavailability and a situation where large segments of the population cannot afford to buy food at market price.’
In the resolution the Council requests the High Commissioner to prepare a comprehensive written report on the human rights situation in Venezuela and to present it to the Council at its forty-first session (March 2019), to be followed by an enhanced interactive dialogue, and to present an oral update on the human rights situation, to the Council at its fortieth and forty-second sessions.
Whilst not the first time that the Council has addressed economic and social rights issues in relation to specific country situations, this has not been a common practice in the past. However, this is becoming more common, and the analysis of economic and social rights issues in such reports is becoming more detailed and sophisticated.
The resolution on Myanmar adopted at this session (A/HRC/RES/39/2), urged the government of Myanmar to reverse policies that economically marginalise the Rohingya and other minorities and to ensure displaced Rohingya Muslims and other minorities in Rakhine State do not lose their rights to their homes and properties. Such policies are identified as ‘root causes of their vulnerability and forced displacement’ and the Council requests the High Commissioner for Human Rights to prepare a report on the root causes. It is expected that this report will consider economic and social rights violations connected to the human rights abuses against the Rohingya Muslims.
Rights of peasants
After 5 years of negotiation by the Intergovernmental Working Group on the rights of peasants (see their latest report - (A/HRC/39/67)), the Human Rights Council adopted the UN Declaration on the rights of peasants and other people working in rural areas (A/HRC/RES/39/12). 33 member States of the Human Rights Council voted in favour of the resolution, 3 voted against it and 11 States abstained. The text of the Declaration is annexed to the resolution.
The Declaration applies to a wide variety of people. Article 1 of the Declaration helpfully defines what is meant by ‘peasants’: ‘any person who engages or who seeks to engage alone, or in association with others or as a community, in small-scale agricultural production for subsistence and/or for the market, and who relies significantly, though not necessarily exclusively, on family or household labour and other non-monetized ways of organizing labour, and who has a special dependency on and attachment to the land.’ However, Article 1 continues to say the Declaration also applies to indigenous peoples, local communities working on the land, hired workers and migrant workers (amongst others).
The text elaborates on rights that are guaranteed by international human rights treaties (eg: ICESCR & ICCPR) and the specific aspects of those rights that are particularly relevant for peasants. In addition, it appears to assert new rights, not contained in the international human rights treaties, such as article 19 of the Declaration, which proclaims that peasants and other people working in rural areas have ‘the right to land’ and ‘the right to seeds’. Article 18 declares the right of peasants ‘to the conservation and protection of the environment and the productive capacity of their lands’. Although access to land and seeds have been addressed in the context of various rights under the ICESCR, such as the right to adequate housing, the right to water and the right to food, the right to land and to seeds are not rights specifically protected by the ICESCR.
Another interesting provision is Article 16 (4) which says ‘States shall take all appropriate measures to ensure that their rural development, agricultural, environmental, trade and investment policies and programmes contribute effectively to protecting and strengthening local livelihood options and to the transition to sustainable modes of agricultural production. States shall stimulate sustainable production, including agroecological and organic production, whenever possible, and facilitate direct farmer-to-consumer sales.’
Whilst declarations are considered soft law instruments which are non-binding in nature, sometimes provisions of declarations solidify into binding international law through usage and State practice. The Human Rights Council resolution adopting the Declaration, also recommends that the General Assembly also adopt the Declaration. It is expected that States will push for the adoption by the General Assembly before the end of this year. It will be interesting then to see how this Declaration will be applied and utilised.
Other Initiatives of Interest
The Council held its annual panel discussion on the integration of a gender perspective into the work of the Council. The theme was ‘Gender integration and human rights investigations: strengthening a victim-centred approach’. The panel heard from the UN Women expert on transitional justice, the former Gender Adviser at the African Union Commission of Inquiry on South Sudan, the Women’s International League for Peace and Freedom and the Chair of the Independent International Commission of Inquiry on Syria. It discussed good practices and challenges in integrating a gender perspective into the work of Commissions of Inquiries, Fact-finding Missions and investigative bodies.
The Council held its annual half day discussion on the rights of indigenous peoples, focusing this year on ‘Participation and inclusion of indigenous peoples in the development and implementation of strategies and projects in the context of the 2030 Agenda for Sustainable Development’. The panel was moderated by the Chair-Rapporteur of the Expert Mechanism on the rights of indigenous peoples and heard from the Co-convenor of the Indigenous Peoples Major Group for Sustainable Development, the Co-chair of the Global Indigenous Youth Caucus and the Director of the United Nations Development Programme Geneva office. A summary report of the discussion will be presented at the June 2019 Council session.
The Special Rapporteur on the rights of indigenous peoples presented her annual report to the Council (A/HRC/39/17) addressing attacks against, and the criminalization of indigenous human rights defenders and reflecting on available prevention and protection measures.
The report notes that intense competition for natural resources by private actors, with the complicity of governments, has been the root cause of criminalization and attacks on the rights of indigenous peoples. Commonly, business activities violate the rights to land and livelihood for indigenous peoples. The report recommends that: States set up robust mechanisms to impartially investigate attacks and violations of the rights of indigenous persons; States enact legislation and policies that protect indigenous groups and recognize collective land rights; private actors undertake human rights due diligence on all prospective projects; social and environmental safeguards be promoted by all national and international funders and development agencies; and that the international community continues to promptly monitor adherence to human rights for indigenous persons.
The High Commissioner for Human Rights also presented a report on the rights of indigenous peoples (A/HRC/39/37). The report notes that the rights of indigenous people remain far from realised due in part to the shrinking democratic space that curtails their involvement in society.
Indigenous peoples continue to be victims of land grabbing, have limited access to justice and lack the capacity to adapt to the immediate effects of climate change. Their social and cultural rights are affected by racial discrimination in education, cultural practices and access to health services. The report recommends governments pass national action plans that promote the collection of data on indigenous peoples, promote their access and participation in national and UN human rights agencies and limit the abuse of their rights by the State and private actors.
In addition, the Council adopted its annual resolution on the rights of indigenous peoples(A/HRC/RES/39/13). The resolution sets the topics for the next two annual half day discussions on the rights of indigenous peoples. For the 42nd session (September 2019) the theme will be the promotion and preservation of indigenous languages. For the 45th session (September 2020) the theme will be the protection of indigenous human rights defenders.
The resolution also mandates a half-day intersessional interactive dialogue on ways to enhance the participation of indigenous peoples’ representatives and institutions in meetings of the Human Rights Council on issues affecting them. The dialogue will be held on the first day of the twelfth session of the Expert Mechanism and the President of the General Assembly should be invited to participate. The report of the dialogue should be presented to the Council and to the General Assembly.
States are encouraged to give due consideration to the rights of indigenous peoples and the discrimination faced by then, in the context of the implementation of the SDGs. Further, the resolution welcomes the agreed conclusions adopted by the Commission on the Status of Women at its sixty-first session, which called for measures to be taken to promote the economic empowerment of indigenous women. It also encourages States to work with indigenous peoples to strengthen technologies, practices and efforts related to addressing and responding to climate change.
The resolution encourages States and stakeholders to participate actively in the International Year of Indigenous Languages and to ‘uphold the spirit of the Year by taking measures to draw attention to the critical loss of indigenous languages and the need to preserve, revitalize and promote them.’
The Council acknowledges the OHCHR report mentioned above and requests the OHCHR to continue to submit an annual report on the rights of indigenous peoples. It also takes note of the work of the Special Rapporteur on the rights of indigenous peoples.
Finally, the resolution also welcomes the work of the Expert Mechanism on the Rights of Indigenous Peoples, and its annual report (A/HRC/39/62), which this year addressed the issue of the free, prior and informed consent of indigenous peoples.
The Special Rapporteur on contemporary forms of slavery, including its causes and consequences, submitted her annual report to the Council (A/HRC/39/52), focusing on the impact of slavery and servitude on marginalized migrant women workers in the global domestic economy. She also presented her mission report on Paraguay (A/HRC/39/52/Add.1).
The report notes the exploitation and marginalization of women domestic workers, which it observes is largely by private actors. Due to the weak regulation of private recruitment agencies, it is difficult for the States from which these migrant workers originate to protect them from slavery, servitude and exploitation. The report recommends that States: ratify the ILO Domestic Workers Convention 2011; enact criminal legislation prohibiting slavery, servitude and forced labour; promote access to health care including sexual and reproductive services for women; promote social protection; regulate and monitor private employers and recruitment agencies; carry out sensitization on the threat of slavery and servitude.
Local government and human rights
A resolution on local government and human rights addressing the issue of local government, human rights and the SDGs, was adopted by the Council by consensus (HRC/RES/39/7). The resolution picked up on the conclusions of an intersessional panel discussion (mandated by resolution A/HRC/RES/33/8) in Geneva on identifying ways in which local governments could promote, protect and fulfil human rights effectively, particularly in the context of implementing the 2030 Agenda for Sustainable Development, in close cooperation with national Governments. The summary report of that panel discussion was submitted to the Council at this session (A/HRC/39/22).
The resolution underscores the significant contribution that local government can make to the implementation of the SDGs and their targets. It encourages the interaction and exchange of knowledge between local government and local stakeholders, in the formulation and implementation of local government programmes, aimed at achieving the SDGs through the promotion of a human rights culture within public services. It also encourages local governments to ensure the participation of local stakeholders in local government activities and in public affairs.
Finally, it requests the OHCHR to prepare a report for presentation to the September 2019 session, on ‘effective methods to foster cooperation between local government and local stakeholders for the effective promotion and protection of human rights at their level through local government programmes, including raising awareness of the Sustainable Development Goals, and to indicate the major challenges and best practices in this regard.’
The Independent Expert on the enjoyment of all human rights by older persons, Ms Rosa Kornfeld-Matte, submitted her thematic report to the Council (A/HRC/39/50). The report considers the impact of the social exclusion of older persons. It provides an overview of the global policy framework and analyses social exclusion concepts, their various manifestations and the impact on the human rights of older persons.
The Independent Expert notes that the exclusion of older persons and violation of their rights is a result of societal failure to acknowledge their contributions and utilize their potential. The report further emphasizes the fact that the failure to promote the rights of older persons will lead to a failure to realize Agenda 2030. The exclusion of older persons is manifest in the failure to secure rights to adequate housing especially in urban areas, social protection, decent work, health services and independent living.
The Independent Expert’s recommendations include: the normative framework of the SDGs should include inclusiveness for older persons; a human rights approach to aging; States should ensure support for older persons in social protection, housing, poverty reduction and the equitable distribution of resources.
The next session of the Human Rights Council will be the 40th session and will be held from 25 February - 22 March 2019.