ESC Rights Update from Geneva: 38th session of the UN Human Rights Council (June 2018)
38th session of the UN Human Rights Council
18 June to 6 July 2018
This Update provides a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 38th session of the Human Rights Council (June 2018).
It provides information about:
The Special Rapporteur on the right to education, Dr. Koumbou Boly Barry, presented her annual report(A/HRC/38/32) to the Human Rights Council at this session. The report considers how the right to education, and the commitments made in the Sustainable Development Goals, provide guidance for national education governance systems.
In the report, the Special Rapporteur urges States to ground their governance systems in human rights norms and values, such as participation, transparency (access to information) and accountability, as this will ensure that education is provided in an equitable, high quality way for all, without discrimination. It will also ensure that States avoid education priorities being captured by powerful elites and the needs of the most disadvantaged being ignored.
The Special Rapporteur reiterates the importance of the ‘4 As Framework’ in the context of education governance: available, accessible, acceptable and adaptable. She also discusses the human rights benefits and challenges of the decentralisation of education governance and the need for data collection (including qualitative data arising from consultations and participatory engagements) and monitoring to ensure accountability. The importance of effective accountability mechanisms at every level of the education system and for the right to education to be made justiciable in national legislation, are also emphasised.
She also addresses issues of international solidarity (international cooperation) and privatisation in education. Finally, the Special Rapporteur underlines the importance of human rights education, training and capacity building for those working in education governance.
The Council adopted by consensus a resolution (A/HRC/RES/38/9) entitled ‘The right to education: follow-up to Human Rights Council resolution 8/4’. The resolution urges States to give full effect to the right to education, including by:
Reviewing national governance systems for consistency with the right to education;
Applying the principles of transparency, accountability and non-discrimination and promoting inclusive participation, in education governance and management structures;
Developing national monitoring and evaluation systems to inform education policies, including through collection of disaggregated data.
States are also urged to ‘expand educational opportunities for all without discrimination, including by implementing special programmes to address inequalities, including barriers to accessibility and discrimination against women and girls in education, recognizing the significant importance of investment in public education’.
Finally, the resolution addresses issues such as the regulation and monitoring of education providers, support for activities to better understand the wide-ranging impact of the commercialization of education, the promotion of technical vocational education and training, measures to address violence in schools and initiatives to measure progress in the realization of the right to education, such as by developing national indicators.
The Council considered the report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health on the topic ‘the relationship between the right to health and specific forms of deprivation of liberty and confinement in penal and medical regimes’ (A/HRC/38/36).
The Special Rapporteur’s report finds that detention and confinement remain the policy tool preferred by States to promote public safety, ‘morals’ and public health, doing more harm than good to public health and the realization of the right to physical and mental health. The Special Rapporteur calls for the full implementation of the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) and for the development of supportive community-based services as alternatives to detention and confinement in various cases.
The Special Rapporteur also presented his mission reports on Indonesia (A/HRC/38/36/Add.2) and Armenia(A/HRC/38/36/Add.1).
The High Commissioner for Human Rights also submitted to the Council a report on ‘Contributions of the right to health framework to the effective implementation and achievement of the health-related Sustainable Development Goals’ (A/HRC/38/37). The report was submitted pursuant to a request by the Council (resolution 35/23) to prepare a report on this topic.
The report discusses the right to health framework and identifies the key health related SDGs. It describes an implementation gap: ‘noting that while the fundamental principles and the main processes and mechanisms of the right to health are well identified, there still remains a significant gap between the formulation of health policies and their effective implementation in everyday practice’. It asserts that ‘Strong and committed leadership, including at the highest levels, is indispensable if effect is to be given to the changes necessary to integrate human rights into public health on a sustainable basis.’
The report considers how to operationalise the SDGs pledge to leave no one behind, noting that it effectively mirrors the human rights principle of equality and non- discrimination, and focuses on women’s rights, neglected health concerns and universal health coverage. In addressing women and girls, the report states:
‘the denial of the health and health-related rights of women and girls remains widespread, as a result of discrimination, exclusion and traditional, cultural, social and other norms and practices that place women and girls in positions of inferiority or subordination in the home, the community, the workplace and broader society.’
The report then looks at the neglect of mental health and the stigma and discrimination experienced by persons with mental health conditions. It points to data and research gaps and low financial and human resources allocated to mental health as symptomatic of the problem and explains that persons with mental health conditions are therefore amongst those left furthest behind in most countries.
On universal health coverage, the report notes that the concept is not defined in the SDGs and that the right to health framework can provide valuable guidance and standards to understand the concept. This is important because not all versions of universal health coverage are consistent with human rights standards, for example there is a risk of entrenching inequalities where governments prioritize the expansion of coverage to privileged groups via the private sector.
A human rights-based approach to universal health coverage ‘requires that availability, accessibility, acceptability and quality be ensured, and that persons in vulnerable situations … be prioritized’. It also insists on participation of stakeholders in the design of policies, appropriate health resource allocation, measures to ensure equal access to health care and services, including where provided by third parties and measures to implement the right to social security, including the implementation of social protection floors, as part of measures to ensure financial risk protection.
Finally the report discusses the importance of accountability and participation and describes some emerging right to health good practices.
A resolution on human rights in the context of HIV and AIDS (A/HRC/RES/38/8) was presented to the Council by Brazil, Colombia, Mozambique, Portugal and Thailand and adopted by consensus.
The resolution requests the High Commissioner for Human Rights to organize a 1.5 day consultation, in the first half of 2019, in coordination with the Joint United Nations Programme on HIV/AIDS, ‘to discuss all relevant issues and challenges pertaining to respect for and the protection and fulfilment of human rights in the context of the response to HIV, with a focus on regional and subregional strategies and best practices’.
Mr Philip Alston, the Special Rapporteur on extreme poverty and human rights presented to the Council his thematic report on the International Monetary Fund and social protection (A/HRC/38/33) and country mission reports on the United States (A/HRC/38/33/Add.1) and Ghana (A/HRC/38/33/Add.2).
The thematic report traced the history of the IMF’s impact on social protection in low-income developing countries and lower middle-income countries. Through the period of ‘structural adjustment programmes’, critique of its neglect of ‘social issues’ leading to the development of an ‘augmented Washington consensus’ characterised by an emphasis on social safety nets and ‘pro-poor growth’, then its recession after the Asian financial crisis and finally its resurgence to the centre of international economic governance after the global financial crisis of 2007/8.
The Special Rapporteur describes the IMF’s ‘aversion’ to human rights and its stated legal position that it is not bound by international human rights treaty law. He explains that, the IMF has accepted that there are some elements of social protection that it is mandated to address.
In 2017 the IMF announced a process to develop an internal strategy on social protection, including a definition. The Special Rapporteur points out that the most important issue will be the overall philosophy underpinning social protection – will the IMF continue its ‘social safety net’ approach or move to a human rights or social citizenship approach, such as that followed by the ILO, WHO and UN through the ‘Social Protection Floor Initiative’?
He describes the IMF’s approach to social protection as a short-term fix for economic hardship:
‘The interest of IMF is in mitigation, not transformation, and social protection is embraced for largely pragmatic programmatic considerations, rather than for the principled reason that any macroeconomic framework should protect those who cannot protect themselves.’
The IMF tends to oppose universal programmes and preference targeting but as the Special Rapporteur points out, targeting is often divisive and not politically sustainable:
‘The rapid elimination of regressive but universal price subsidies to be replaced by limited social protection programmes for the poorest will garner very little political support from the key political players, thus undermining the political (rather than fiscal) sustainability of such reforms.’
Rapporteur Alston asserts that abrupt and short-term targeting programmes are unlikely to be successful. A rights-respecting, durable social protection system must be developed in consultation and democratic dialogue with civil society and invested-in over the long-term.
The Special Rapporteur recommends greater diversity (gender, cultural and academic) within the IMF’s staff and an underlying ethical framework to guide its work and decision-making so that it is genuinely pro-poor. He also recommends the IMF take a gradual and proactive approach to embedding social protection and engage seriously with the Social Protection Floor Initiative and with external stakeholders like civil society and other UN agencies.
‘To date, IMF has been an organization with a large brain, an unhealthy ego and a tiny conscience. If it takes social protection on board seriously, rather than making a tokenistic commitment to minimal safety nets, it can show that it has actually learned from its past mistakes.’
The Council considered the report of the Working Group on Discrimination Against Women in Law and Practice (A/HRC/38/46) which provided a stock-taking of the first six years of the mandate of the Working Group and outlined its vision for the mandate in the coming years. The report highlights the successes, limitations and main challenges faced by the women’s rights movement and strongly calls for substantive equality and the need to counter the rollbacks and attacks on women’s rights.
Against the backdrop of these 2 themes, the Working Group plans to work on the following issues in its thematic reports:
Women left behind: the causes and consequences of cumulative, multiple and intersecting discrimination against women, with a case study on women deprived of liberty;
Protecting and realizing women’s rights in the changing world of work (right to work and working conditions);
Ensuring the prioritization of sexual and reproductive health and rights in situations of crisis and insecurity;
Realizing the rights of girl children and adolescent girls; and
A rapidly shifting world: emerging issues and strategies for the realization of women’s rights (broader economic, environmental and social trends such as the climate crisis, rapid environmental degradation, growing inequalities, technological disruption and demographic change).
The Working Group also presented its mission reports on Samoa (A/HRC/38/46/Add.1) and Chad(A/HRC/38/46/Add.2).
The High Commissioner for Human Rights submitted a report on ‘Review of promising practices and lessons learned, existing strategies and United Nations and other initiatives to engage men and boys in promoting and achieving gender equality, in the context of eliminating violence against women’ (A/HRC/38/24).
Colombia and Mexico presented their annual resolution on the elimination of all forms of discrimination against women and girls, this time focusing on women’s economic, social and cultural rights(A/HRC/RES/38/1). The resolution was adopted without a vote, after the rejection or withdrawal of 5 amendments brought by Russia and others. The proposed amendments mainly addressed issues of sexual and reproductive health and rights.
The resolution takes notes of the report of the Working Group on Discrimination Against Women in Law and Practice and suggests States take into consideration its recommendations and those of the Special Rapporteur on violence against women. It also calls on States to:
repeal all laws that exclusively or disproportionately criminalize the actions or behaviour of women and girls, and laws and policies that discriminate against them, based on any grounds, including any custom, tradition or cultural or religious interpretation contrary to the international obligation to eliminate all forms of discrimination against women and girls;
‘consider’ reviewing its legislation to ensure compliance with international obligations;
work towards establishing or strengthening inclusive and gender-responsive social protection systems, including floors, to ensure full access to nationally appropriate social protection for all without discrimination of any kind, and to take measures to progressively achieve higher levels of protection, including by facilitating the transition from informal to formal work;
promote legislation and policies that facilitate women’s economic development, ensure equal pay for equal work or work of equal value and prohibit all forms of discrimination, including in the workplace and in education, such as discrimination against women and girls based on pregnancy, maternity, marital status, age, race or gender, as well as violence and harassment against them, including sexual harassment and harassment in digital contexts and online spaces;
modify social and cultural patterns of conduct with a view to preventing and eliminating in the public and private spheres patriarchal and gender stereotypes, negative social norms, attitudes and behaviours, and unequal power relations that view women and girls as subordinate to men and boys and that underlie and perpetuate discrimination and violence against women and girls.
The resolution also addresses issues of: the feminisation of poverty; women’s participation in the design of poverty eradication and development policies and programmes; the need to recognize, reduce and redistribute women’s and girls’ disproportionate share of unpaid care and domestic work; paid parental leave; transition from the informal to the formal workforce; and equal rights of women and men to natural, economic and productive resources, including land, property and inheritance rights, new technology and financial services and ensure women’s legal capacity and equal rights to conclude contracts.
The Council considered a report of the High Commissioner for Human Rights on the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context (A/HRC/38/20), which was prepared pursuant to the request of the Human Rights Council in its resolution 32/10.
The report confirms that States’ duty to protect against business-related human rights abuses, is required by international human rights law and reflected in the UN Guiding Principles, and ensuring the accountability of business enterprises and access to effective remedy for victims is a crucial part of that duty. The report notes that whilst effective judicial mechanisms are at the core of ensuring access to remedy, administrative, legislative and other non-judicial mechanisms play an essential role in complementing and supplementing them.
Non-judicial mechanisms take many different forms, for example: labour inspectorates; employment tribunals; consumer protection bodies (often tailored to different business sectors); environmental tribunals; privacy and data protection bodies; State ombudsman services; public health and safety bodies; professional standards bodies; and national human rights institutions. They fall into 5 broad categories: Complaint mechanisms; Inspectorates; Ombudsman services; Mediation or conciliation bodies; Arbitration and specialised tribunals. However, the experience of victims suggests that in many cases these mechanisms are not yet fulfilling the role envisaged for them in the Guiding Principles.
The report provides recommendations (via ‘Policy Objectives’) on the steps that States can take to improve the effectiveness of State-based non-judicial mechanisms, at both the systemic and individual levels, emphasizing issues such as policy coherence, legal authority and capacity gaps in responding to cross border cases, transparency and access to information and accessibility for victims.
The report was accompanied by ‘Explanatory Notes to the Final Report’ (A/HRC/38/20/Add.1) and a further report on ‘The relevance of human rights due diligence to determinations of corporate liability’ (A/HRC/38/20/Add.2).
The Working Group on the issue of human rights and transnational corporations and other business enterprises also reported to the Council at this session. In its report regarding the duty of States to protect against human rights abuses by business enterprises to whom they provide support for trade and investment promotion (A/HRC738/48), the Working Group explores how States can incentivize business respect for human rights in their economic or commercial diplomacy, including through withdrawal of trade and investment support in situations where businesses fail to meet their corporate responsibility to respect human rights.
The report explains that when States provide trade finance and advisory services (as service providers, public financiers, insurers and guarantors) to businesses aimed at expanding export opportunities, they can use their leverage to promote a race to the top by setting out clearly the expectation that businesses respect human rights as a precondition for receiving government support for export activities. States can also promote responsible imports by restricting the flow of goods in supply chains that involve serious human rights abuses.
The Working Group report unpacks Principle 4 of the UN Guiding Principles on Business and Human Rights which states that States should take additional steps to protect against human rights abuses by business enterprises that receive substantial support and services from State agencies including, where appropriate, by requiring human rights due diligence. It also references General Comment No. 24 (2017) of the Committee on Economic, Social and Cultural Rights, on ‘State obligations under the International Covenant on Economic, Social and Cultural Rights’.
The Working Group also presented its reports on its missions to Canada (A/HRC/38/48/Add.1) and Peru(A/HRC/38/48/Add.2) and on the sixth session of the Forum on Business and Human Rights (A/HRC738/49).
The Council adopted, without a vote, a resolution on ‘Business and human rights: Improving accountability and access to remedy’ (A/HRC/RES/38/13).
The resolution ‘notes with appreciation’ the report of the High Commissioner and welcomes the work of the Working Group on business and human rights, on access to effective remedies. It asks the Working Group to ‘analyse further the role of national human rights institutions in facilitating access to remedy for business-related human rights abuses, and to convene a two-day global consultation on these issues, open to all stakeholders, and to inform the Council by its forty-fourth session as appropriate.’
Finally, it requests the OHCHR to continue its work in this area and ‘to identify and analyse challenges, opportunities, best practices and lessons learned with regard to non-State-based grievance mechanisms that are relevant to the respect by business enterprises for human rights’, to convene two consultations, involving representatives of States and other stakeholders to discuss such issues and to submit a report thereon to the Human Rights Council.
In the area of environment, climate change and human rights, the High Commissioner submitted a report on ‘Addressing human rights protection gaps in the context of migration and displacement of persons across international borders resulting from the adverse effects of climate change and supporting the adaptation and mitigation plans of developing countries to bridge the protection gaps’ (A/HRC/38/21), pursuant to the Human Rights Council’s request in resolution A/HRC/RES/35/20. The report discusses the impacts of climate change on human mobility and related human rights risks and then considers the human rights protection gaps for climate change-related cross-border movement and recommendations for closing those gaps.
The report notes that the relationship between climate change and human mobility is complex and difficult to measure. It refers to the figures of the Internal Displacement Monitoring Centre, which estimates that, on average, 21.7 million people were internally displaced each year in the period 2008–2016 by weather-related disasters. Figures are not available for cross-border displacement, nor for displacement caused by slow-onset adverse effects of climate change, such as sea level rise, salinization of groundwater resources, changing precipitation patterns and desertification. The IPCC’s 5th Assessment Report found that climate change would increase future levels of displacement and that populations lacking the resources for planned migration experienced higher exposure to extreme weather events, in particular in developing countries with low incomes.
The report notes that vulnerability to the adverse impacts of climate change, including displacement:
‘can result from multiple and intersecting forms of discrimination, inequality and structural and societal dynamics that lead to diminished and unequal levels of power and enjoyment of rights. The negative impacts of climate change can reduce adaptive capacity and affect a person’s ability to move, the freedom with which they choose to do so, and their vulnerability before, during and after migration. Vulnerability may occur throughout migration and regardless of whether or not movement was “voluntary”. It can be enhanced by restrictive migration and border control policies.’
The report describes the risks faced by persons moving because of climate change and notes that whilst climate change poses unique threats, ‘the risks faced by persons moving because of climate change are similar to those faced by all migrants in vulnerable situations who are unable to have access to safe, affordable and regular migration pathways’.
In discussing the legal and policy human rights protection gaps for persons crossing borders due to climate change, the report considers: the fact that the Refugee Convention would generally not apply to such persons; the absence of human mobility issues in environmental law and policy; and the Global Compacts processes underway. It mentions the Sendai Framework on Disaster Risk Reduction, the IOM’s work and the Nansen Initiative, as examples of policy processes and instruments which address this issue. It then discusses the protection offered by States’ human rights obligations with respect to these people.
The report makes important recommendations, such as:
Take ambitious action to mitigate climate change to prevent its impacts from worsening and reduce its role as a driver of human mobility;
Ensure respect, fulfillment, promotion and protection of all human rights for persons crossing borders in the context of climate change and refrain from returning migrants to territories affected by climate change that can no longer sustain them;
Mobilize all necessary means of implementation for effective climate change mitigation and adaptation measures to address human rights protection gaps for persons adversely affected by climate change;
Ensure the meaningful, effective and informed participation of all persons, and especially women, in decision-making processes related to climate change and human mobility and adequately inform people about the existing and potential adverse effects of climate change to promote informed decision-making;
Commit to integrating human rights and human mobility, as well as climate change or the adverse effects of climate change, in relevant national reporting to the UN Framework Convention on Climate Change and to UN human rights mechanisms (eg: UPR); and
Operationalise the Global Migration Group’s Principles and practical guidance on the human rights protection of migrants in vulnerable situations.
The annual resolution on human rights and climate change (A/HRC/RES/38/4) was again presented by the core group of Bangladesh, Vietnam and the Philippines, and adopted by consensus (after oral revisions). The resolution focused on the issue of women’s rights in the context of climate change and identified 2 activities in this regard:
a panel discussion to be held at the 41st Council session on the theme ‘Women’s rights and climate change: climate action, best practices and lessons learned’; and
an analytical study to be conducted by OHCHR on the integration of a gender-responsive approach into climate action at the local, national, regional and international levels for the full and effective enjoyment of the rights of women.
Special Procedures Communications report
The report of the Communications procedures of the Special Procedures mandate holders was submitted to the 38th Council session (A/HRC/38/54). The report summarises all communications sent by any of the Special Procedures mandate holders during the period 1 December 2017 and 28 February 2018, and responses received in relation to those communications up to 30 April 2018.
In total 154 communications were sent during this reporting period, to 67 countries and other non-State actors and to which replies were received from 80 countries and other actors. The countries that received the highest numbers of communications (6 each) were Iran, the Philippines, Turkey and the US.
As in previous periods, the civil and political rights-focused mandates sent much higher numbers of communications: 76 by Freedom of opinion and expression; 64 by Human rights defenders; and 47 by Arbitrary detention. Of the ESC rights focused mandates, the highest number of communications was sent by the Special Rapporteur on the right to health (20), followed by the Special Rapporteur on the environment (8) and the right to education mandate (6). The Working Group on business and human rights also sent 13 communications to States and business actors.
Sustainable development and human rights
The OHCHR submitted its report on ‘Supporting effective and inclusive implementation of the 2030 Agenda for Sustainable Development through effective, coherent and coordinated technical cooperation and capacity-building’ (A/HRC/38/28), pursuant to Human Rights Council resolution A/HRC/RES/36/28.
The report looks at how UN human rights bodies and mechanisms and UN country teams and agencies can, through effective, coherent and coordinated technical assistance and capacity-building in the promotion and protection of human rights, support States in the realization of the 2030 Agenda for Sustainable Development. It provides many examples of UN technical cooperation that are assisting States in achieving the SDGs and consistent with their international human rights commitments.
The report was intended to serve as a basis for the discussions at the Human Rights Council’s annual thematic panel on technical cooperation, at this session, which focused on enhancing human rights technical cooperation and capacity-building to contribute to the effective and inclusive implementation of the 2030 Agenda.
That panel discussion was held on 4 July and aimed to facilitate an exchange of views and sharing of concrete experience on how human rights technical cooperation and capacity-building can contribute to the implementation of the 2030 Agenda. The panel addressed the existing and envisaged roles of UN human rights mechanisms, UN Country Teams and other parts of the UN system, in contributing to the implementation of the 2030 Agenda and identified innovative ways forward. A report of the panel discussion will be presented to the Council at the next session.
The next session of the Human Rights Council will be the 39th session and will be held from 10 – 28 September 2018.