ESC Rights Update from Geneva: 65th session of the Committee on Economic, Social and Cultural Rights (18 February to 9 March 2019)

From the 18th of February to the 9th of March 2019, the Committee on Economic, Social and Cultural Rights (CESCR) held its 65th session in Geneva.


**State Reporting Procedure**

During the session, the Committee considered the State reports of ***Estonia, Cameroon, Bulgaria, Mauritius, and Kazakhstan ***on the implementation of the International Covenant on Econommic, Social and Cultural Rights (ICESCR). The Committee held meetings with civil society representatives from Bulgaria, Cameroon and Estonia and Kazakhstan, who briefed them on the implementation of the provisions of the ICESCR in their respective countries.

The review of Slovakia was postponed by the Committee to its sixty-sixth session, scheduled for 30 September to 18 October 2019.

Following the session, the Committee published its ***Concluding Observations* **on Estonia, Cameroon, Bulgaria, Mauritius, and Kazakhstan. The concluding observations are accessible [HERE][1].




The Committee’s pre-sessional Working Group met from 11 - 15 March 2019 and adopted:

• Lists of Issues in respect of **Benin, Ecuador, Israel, Kuwait and Senegal**; and

• Lists of Issues Prior to Reporting for **Austria and Finland**.

The Lists of Issues and Lists of Issues Prior to Reporting are available [HERE][2].



**Communications under the Optional Protocol to the ICESCR**

Since the entry into force of the Optional Protocol to the ICESCR, the CESCR has received and registered a total of 64 communications. Of those registered communications the Committee :

* adopted Views in 5 cases – finding a violation in 4 cases and no violation in 1 case;

* declared 14 communications inadmissible;

* discontinued or withdrew 6 communications; and

* has 39 communications currently pending.

***Our Blog*** about the work of the Committee under the Optional Protocol in 2018 is available [HERE][3].


During the 65th session, the Committee examined two communications, finding one inadmissible against Spain (see summary below). In the second case, which was against Italy, the Committee found a violation of the right to health in relation to the regulation of in vitro fertilisation (see summary below). The Committee also decided to discontinue the examination of four communications.

***Irma Elisabeth Makinen Pankka and Teófilo Fernández Pérez v Spain*** (9/2015) (E/C.12/65/D/9/2015).

The authors of this communication against Spain, alleged violations of their rights to non-discrimination (Art 2) and to adequate housing (Art 11).

The authors signed a contract with a private company to purchase an apartment in a building under construction in Malaga. The author paid 87,694 euros in advance, pending the completion of the construction of the building. Due to safety and maintenance issues, changes to the apartment design were made. Disagreeing with this change, the authors requested the rescission of the contract and the reimbursement of the amounts paid. The company did not respond to this request but later filed a legal claim against the authors seeking payment of the full purchase price.

In 2015, the company asked the Court to set a date for the auction of the property, at which point the authors approached the CESCR arguing that their rights to adequate housing had been violated.

The State argued that the Communication was inadmissible on the grounds that:

* domestic remedies were not exhausted by the authors - Art 3(1);

* the allegations of violations of Articles 2 & 11 were manifestly unfounded and the authors had not demonstrated a violation of rights - Art 3(2)(e);

* the claim was an abuse of the right to submit a communication – Art 3(2)(f).

In relation to Article 3(1), the Committee considered that the authors had exhausted all available remedies in the domestic jurisdiction and that their communication was admissible under article 3(1).

In relation to admissibility under Article 3(2)(e), the State contended that the communication was manifestly unfounded since it relates to a real estate investment, not the purchase of a residence. The Committee agreed with the State and found that the judicial process referred to by the authors did not affect their residential dwelling and that they had not demonstrated that they had been deprived of their right to adequate housing nor that the right was actually threatened.

The case was thus declared inadmissible under Article 3(2)(e).

The case documentation is available [HERE][4] in Spanish.

*[S.C. and G.P. v Italy] [5] * (22/2017) (E/C.12/65/D/22/2017)

The case was brought by a couple undergoing in vitro fertilization (IVF) treatment, where the woman was forced to allow the transfer of embryos to her uterus. The woman alleged violations of her right to family (Art.10), to health (Art.12) and to enjoy the benefits of scientific progress and its applications (Art 15 (1) (b), 2 & 3).

The authors produced a number of embryos which were tested prior to implantation, to identify if the embryos had any genetic disorders which would result in a miscarriage if implanted in the woman’s uterus. The embryos were said to be of average quality, with low chances of success. Therefore, fearing she would suffer a miscarriage, the woman requested that the embryos not be transferred to her uterus.

The medical clinic told the woman that the Italian law 40/2004, which regulates the use of reproductive technology, required her to have the embryo transferred to her uterus and threatened to sue her if she refused. The woman felt compelled to allow the procedure and subsequently suffered a miscarriage.

She requested that the remaining nine embryos be donated to scientific research. This request was denied by the clinic noting that Law 40/2004 prohibited research on embryos. The woman filed an unsuccessful lawsuit against the clinic and the state contesting the clinic’s refusal to surrender to her the remaining embryos and the lack of consent prior to embryo implantation in her uterus.

The Committee declared inadmissible the authors claim concerning the prohibition against them donating the nine embryos to scientific research, on the grounds that they had failed to sufficiently substantiate their claims.

In relation to the authors’ second claim, the Committee found a violation of the right to health (article 12). It observed that the right to health includes the right to make free and informed decisions concerning medical treatment. Laws and policies that prescribe involuntary, coercive or forced medical interventions violate the State’s responsibility to respect the right to health. Therefore, forcing a woman to have an embryo transferred into her uterus, constitutes a forced medical intervention, contrary to the right to health.

Further, the Committee stated that any limitations on Covenant rights must comply with the conditions in article 4, including that the limitation is ‘compatible with the nature of these rights’. The Committee noted that the prohibition on withdrawing one’s consent to the transfer of an embryo, can lead to forced medical interventions or even forced pregnancies and was therefore not compatible with the nature of the right to health. It was thus a violation of article 12 of the Covenant.

The Committee recommended that Italy award compensation for the physical, psychological and moral damages suffered and adopt appropriate legislative and/or administrative measures to guarantee the right of all women to take free decisions regarding medical interventions affecting their bodies and to allow all persons to withdraw their consent to the transfer of embryos for procreation.




**Thematic work and Proposed General Comments**

The Committee continues to work towards the elaboration of general comments on: the right to science; land and the ICESR; and sustainable development and the ICESCR.

**Statement on the 2030 Agenda for Sustainable Development**

At this session, the Committee also adopted a statement (E/C.12/2019/1) on the pledge to ‘Leave No One Behind’ in the 2030 Agenda for Sustainable Development. This statement will comprise its input to the 2019 High-Level Political Forum, in July.

The Committee notes that the objective of the Agenda 2030, to eradicate poverty in all its forms and dimensions, by promoting just, inclusive and sustainable societies, is the essence of the ICESCR and that the rights protected in the Covenant underpin the SDGs.

The Committee highlights that, in line with SDG 10 (inequalities), the eradication of poverty will not be achieved in the context of widening gulfs between rich and poor both within and between countries. Therefore, it confirms that states reporting to the CESCR are required to provide information on the impact of income and wealth inequalities on the enjoyment of economic, social, and cultural rights. Whilst the Committee has more recently addressed wealth and income inequality in its concluding observations (see for example the 2018 concluding observations on South Africa), this is not a topic that States typically provide information on.

According to the Committee, the ICESCR provides a rights-based methodology which should be employed by states also for the monitoring of progress towards the attainment of the SDGs. The key components of this methodology include: the identification of marginalised and disadvantaged groups; assessment by states as to how their actions or inactions affect the realisation of covenant rights, with particular attention to the minimum essential levels of rights; adoption by states of an all-inclusive, transparent national strategy and plan of action to advance the full realisation of Covenant rights, with indicators, benchmarks and monitoring; analyse and take measures to protect ICECR rights against violations by private actors, over which they can exercise jurisdiction, whether within or outside their territory; and monitor progress towards the full realisation of the Covenant rights.

Importantly, the Committee here emphasises the concepts of sustainability and future generations. It says that states should use sustainable methods of rights fulfilment so that they are able to secure rights for present and future generations. The Committee also emphasises states duties with respect to both substantive outcomes and process and with respect to the general human rights principles: participation, transparency, accountability, non-discrimination, empowerment of beneficiaries, and respect for the rule of law.

The Committee goes on to assert that the ICESCR’s normative framework should be the ‘bedrock’ of all measures adopted by states to advance Agenda 2030. It can be applied: to the development of institutional national policies; to identify those most in need; to design policies that address root causes; in creating spaces for affected persons to be heard; and in designing accountability mechanisms.

The Committee also underscores the vital role civil society organizations play especially for monitoring of SDGs and ICESCR rights. Finally, it concludes:

*‘By complying with the normative obligations of the ICESCR, States will strengthen their ability to realise the SDGs and fulfil their pledge to ‘leave no one behind”.*

**Indigenous languages**

The Committee also adopted a letter from the Chair on the celebrations of the 2019 International Year of Indigenous Languages.

**Trade unions**

Discussions are also underway on a joint statement with the Human Rights Committee on article 8 of the ICESCR (the right to form and join trade unions) and article 22 of the International Covenant on Civil and Political Rights related to the right to freedom of association, including the right to form and join trade unions.

**Economic reform policies**

The Committee was also briefed by the UN Independent Expert on the effects of foreign debt on human rights, Juan Pablo Bohoslavsky, on the [Guiding Principles for human rights impact assessments for economic reform policies][6].



**Procedural matters **

During the session, the Committee discussed its working methods, including the simplified reporting procedure, the approach to reprisals, as well as the preparation of a back-to-back review of State parties’ reports with the Human Rights Committee (Finland and Estonia) and the preparation of a coordinated list of issues prior to reporting.

The states following the simplified reporting procedure are: *Austria, Finland, Chile, Italy, Belarus, Belgium, Norway, Ukraine, and Mongolia*.


**Membership **

At this session, the following new members joined the Committee (their terms commenced on 1 January 2019):

* Mr. Asraf Ally Caunhye from Mauritius

* Mr. Peters Sunday Omologbe Emuze from Nigeria

* Ms. Karla Vanessa Lemus de Vásquez from El Salvador

The Committee then held elections for the office holders. It elected by consensus Mr. Renato Zerbini Ribeiro Leão of Brazil as the Chairperson. It also elected Ms. Sandra Liebenberg (South Africa), Ms. Laura-Maria Craciunean-Tatu (Romania), and Mr. Shiqiu Chen (China) as Vice-Chairs of the Committee, and Mr. Olivier de Schutter (Belgium) as the Rapporteur.

Details on the current membership of the committee as of 1st January 2019 can be found [HERE][7].



**Next sessions**

The sixty-sixth session of the Committee will be held from the 30 September to 18 October 2019 during which the Committee will consider the reports of:

**Benin, Denmark, Ecuador, Israel, Senegal, Slovakia, and Switzerland**

The deadline for submission of reports by civil society and National Human Rights institutions in respect of the review of these countries is the **6th of September 2019**.

The Programme of Work for the 66th session (including dates for the Dialogues) is not yet available but will be posted [HERE][8] in the coming weeks.

The 66th session will be followed by a *Pre-Session from the 21st – 25th of October 2019* at which the pre-sessional Working Group of the Committee will prepare;

* List of Issues for **Azerbaijan, Bolivia, Bosnia and Herzegovina**; and

* List of Issues Prior to Reporting in respect of **Chile, Italy and Mongolia**.

The deadline for the submission of information by civil society in respect of these Lists of Issues and Lists of Issues Prior to Reporting is the **26th of August 2019**.