International accountability for economic, social and cultural rights: recent developments in the complaints procedure of the Committee on Economic, Social and Cultural Rights
There was much excitement in human rights circles when the complaints procedure of the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect on 5 May 2013. Hopes were high for international accountability for economic, social and cultural rights, after a long period without any avenue of accountability at the international level for violations of economic, social and cultural (ESC) rights. After almost six years of operation and only 5 decisions on the merits, how has this procedure advanced the realisation of ESC rights?
The Optional Protocol to the ICESCR (OP) recognizes the competence of the Committee on Economic, Social and Cultural Rights (CESCR), to receive and consider ‘communications’ submitted by individuals or groups of individuals, who claim to be victims of a violation of the economic, social and cultural rights set out in the ICESCR. It provides an avenue for individuals to complain about a State’s failure to implement the Covenant, after the satisfaction of certain admissibility criteria, including the exhaustion of domestic remedies.
Out of the 169 state parties to the ICESCR, only 24 states have ratified the Optional Protocol. Of this number, only 3 are African states (Gabon, Niger and Central Africa Republic) and only 1 is an Asian state (Mongolia). After an initial flurry soon after the adoption of the OP in 2008, ratifications have been slow. The latest state to sign was Venezuela, in October 2018.
Nevertheless, the Committee has received a steady flow of communications with 64 registered in total. Of those registered communications :
the Committee has adopted 5 ‘Views’ (decisions), of which 4 were found to be violations of the ICESCR;
14 were declared inadmissible;
6 were discontinued or withdrawn; and
39 are pending before the Committee.
41 of the 64 communications were received since October of 2017. This represented an increase of 412 per cent in new registrations in 2017-2018, compared with 2016-2017, when only eight cases were registered. All but three of the newly registered cases involve Spain and deal with evictions and the right to adequate housing. Most also seek interim measures related to a threatened eviction.
This deluge of cases has significantly increased the caseload of the Committee and put it under new workload pressure. It will be interesting to see how the Committee will deal with this and whether it might seek a group solution in relation to Spanish housing cases.
Unfortunately, there has not been an even geographical spread of cases brought to the Committee. Even before this surge in cases against Spain, the vast majority of the cases registered were against Spain and frequently related to the housing crisis in Spain. No cases have been submitted against Asian or African countries and only 2 cases have been brought against Latin American countries (2 against Ecuador ). This in part reflects the geographical spread of ratifications of the OP and, perhaps also, a low level of awareness of the complaints mechanism.
A high number of the communications have been found to be inadmissible (15). The vast majority of those were found inadmissible on the grounds of ‘rationae temporis’ which means that the alleged violation occurred before the entry into force of the Covenant for that state. In a case against Spain regarding the right to health, decided in 2018, the Committee confirmed that where the alleged violation occurs before the entry into force date, but continues after that date, the case will not be inadmissible.
A reasonable number of communications were also found inadmissible on the grounds that the Committee did not have jurisdiction, often because the claims were made under another human rights treaty. A smaller number were found inadmissible on the grounds of failure to exhaust domestic remedies and insufficient substantiation of the facts.
In terms of decisions on the merits, the Committee found violations against Spain in two cases relating to housing rights, against Ecuador in one case regarding the right to social security and gender equality and against Italy in one case regarding the right to health of a woman undergoing IVF treatment. The case where no violation was found, was against Spain and related to the right to social security for prisoners.
It is interesting to note that in most of the cases where a violation was found, the Committee had received a third party intervention, submitted by non-governmental organisations (NGO) or a Special Rapporteur. The Committee formalised this process through the adoption of ‘Guidance on third party interventions’ which requires intervenors to seek and be granted permission from the Committee to make the third party intervention.
In one case the state challenged the decision of the Committee to allow the submission of a third party intervention from an NGO. However, the Committee confirmed that under article 8(1) of the OP, the Committee can accept relevant information and documentation submitted by third-party persons or bodies where necessary to properly decide on a case, provided that such submissions are authorized by the Committee and subsequently transmitted to the parties for comments.
Interim measures were requested (article 5 of the OP) in at least one of the cases adjudicated on the merits, but were refused, on the grounds that the Committee had not received sufficient individualized information to substantiate the existence of possible irreparable damage to the authors.
The main topics of the communications registered so far have focused on evictions, the right to housing and the right to social security. There have also been cases on the right to health, the right to work and cultural rights.
In 2018, the Committee gave its decision in a case on the right to social security, Trujillo Calero v. Ecuador (E/C.12/63/D/10/2015). The case was brought by Ms. Marcia Cecilia Trujillo Calero who had made 29 years’ worth of retirement contributions to the Ecuadorian Institute of Social Security (IESS), including during the period that she was an unpaid domestic worker looking after her children. Her application for early retirement was denied on the grounds that she did not have the required minimum 300 contributions, because an eight-month pause in voluntary payments (during the period when she was not earning an income) had disaffiliated her from the retirement scheme and hence invalidated all her subsequent voluntary payments.
The Committee held that Ecuador violated Ms. Trujillo’s rights to social security (Article 9), to non-discrimination (Art 2(2)) and to gender equality (Art 3), when the IESS denied her early retirement request and that the conditions of the voluntary affiliation imposed on the author, as an unpaid domestic worker, constituted discriminatory treatment in relation to her right to social security.
The Committee also pointed out that the State had not sufficiently explained the reasonableness and proportionality of the requirements of access to the scheme, and to remain a voluntary affiliate, in the case of women who performed unpaid household work.
This decision was important because the Committee set out the minimum state obligations in relation to the right to social security and because it was the first time the Committee addressed the gendered impacts of state policy. In analysing the link between unpaid care work and gendered access to social security, the Committee applied a ‘substantive equality’ approach. It noted the discriminatory impact of the law in practice, such that a high proportion of those without access to an old age pension, were women who had devoted a significant proportion of their working life to unpaid domestic/care work. Without an income it was much more difficult for these women to contribute to the contributory pensions scheme.
In terms of remedies, the Committee ordered payment to the complainant of the retirement benefits, her legal costs and compensation for the violation. Following its practice in previous cases, the Committee also ordered general measures which attempted to address structural issues, including: the adoption of special measures in relation to women to ensure gender equality, including steps to remove impediments to women unpaid care workers contributing to social security plans; and the formulation of a plan for a comprehensive non-contributive pension scheme.
Another example of innovative and targeted remedies is the Committee’s order in the case M.B. Djazia and N. Bellili v Spain, that Spain provide the complainant with public housing and resolve the lack of coordination between court decisions and social services, which can result in an evicted person being left without adequate accommodation.
A trend in a number of the cases where a violation was found, including the Trujillo Calero case, is the State’s failure to submit sufficient information to justify their decisions or actions. It seems that States are not yet familiar with the adjudication of ESC rights and have not realised the importance of submitting information to show that they are using the maximum available resources to fulfil rights and to show the ‘reasonableness’ of their decisions not to fulfil rights (or to limit rights).
This information is essential for the Committee to properly adjudicate the reasonableness of state action or inaction. Often this requires information of a systemic nature, for instance regarding the allocation of resources to, and within, relevant sectors (housing, health etc.). It might also require information about processes for the development of policies or decisions that impact people, for instance, showing whether the state consulted with affected persons or whether the discriminatory impact of policies was considered and justified?
Another recent case of interest, is S.C and G.P vs. Italy. The case was brought by a couple undergoing invitro 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. 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 embryos transferred to her uterus and threatened to sue her if she insisted in her refusal. 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. She 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.
Further, the Committee stated that restrictions 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.
The ICESCR communications procedure has had a steady and positive start. On the whole, the cases before the Committee have been relatively straight forward and enabled the Committee to develop strong procedural and substantive jurisprudence, particularly on housing, social security and gender equality. The Committee has also emphasised underlying structural problems, such as indirect discrimination in the social security system. It has also reminded States, particularly through the remedies ordered, of their obligations to fulfil ESC rights. For example, asking States to: put in place a comprehensive housing strategy to guarantee the right to adequate housing for people with low incomes; and formulate, within a reasonable time, a plan for a comprehensive non-contributive pension scheme.
On admissibility matters, the Committee has followed the jurisprudence of the other human rights treaty bodies. It has innovated on the question of third party interventions and the publication of its table of pending cases. Unfortunately the dramatic increase in caseload is likely to create delays, but may also lead to an increase in the allocation of sitting time to the Committee.
The low ratifications of the OP remains concerning and may hamper the potential for the development of important international jurisprudence on economic social and cultural rights. Boosting the ratifications of the OP is essential to ensuring the continuing legitimacy of the procedure and enabling the Committee to develop a well-rounded body of case law, addressing a range of ESC rights issues in a range of countries across the world.
By Lucy McKernan, Geneva Representative, GI-ESCR & Alderin Ongwae, Intern, GI-ESCR
2 April 2019