Communications procedure of the Committee on Economic, Social and Cultural Rights
Communications procedure of the Committee on Economic, Social and Cultural Rights: A slow but solid start for the international accountability mechanism for economic, social and cultural rights
In June 2017, the UN Committee on Economic, Social and Cultural Rights (the Committee) handed down its third decision on the merits under its complaints mechanism, the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (OP-ICESCR). After almost five years of operation of the procedure, this case was a welcome addition to the slowly growing jurisprudence of the Committee. It tackled the dire housing situation in Spain following the financial crisis and introduction of austerity measures, looking at the situation of very low income tenants in private rental accommodation in Madrid who were evicted into homelessness. In finding a violation of the Covenant, the Committee said that whilst the eviction was justified, the failure of the State to allocate alternative housing to the authors, amounted to a violation of their right to adequate housing, because the State was not able to convincingly demonstrate that it had taken all reasonable measures, up to the maximum of available resources, to satisfy the author’s right.
To date the Committee has received[i] 22 Communications, five of which remain pending[ii] before the Committee and the remaining 17 of which the Committee has adjudicated. The majority of the adjudicated cases (12) were found to be inadmissible, frequently on the grounds that the facts alleged occurred prior to entry into force of the Optional Protocol for the relevant State (ratione temporis).[iii] It is hoped that as time passes timing will become less of a problem and the number of claims found inadmissible on this ground will diminish. However, given the relatively low level of ratification of the OP-ICESCR,[iv] the number of cases is likely to remain low and timing may remain a problem for newly ratifying States in the coming years.
A few cases were also found inadmissible on the grounds that the complainant had failed to exhaust domestic remedies[v] and the Committee provided some useful comments on the meaning of ‘exhaustion’, which were in-line with the jurisprudence of other treaty bodies. For the three claims found admissible, the Committee found a violation in two cases and no violation in one case.
It is interesting to note that the vast majority of the Communications submitted have been against Spain and many relate to the financial crisis and austerity measures. Ecuador has also been the subject of several Communications. The rights most commonly raised in the cases were the right to social security, the right to adequate housing and the right to health. Non-discrimination (Art 2(2)) was also raised in a large number of the Communications.
Trends so far?
With the caveat that the number of cases submitted remains low and so it is difficult to draw out themes or patterns, broadly speaking the cases relate to the financial crisis and austerity measures and have highlighted the impacts of austerity measures on social security and housing, particularly in Spain.
The cases reflect one of the most pertinent economic and social rights issues in recent times, for those States which have ratified the OP-ICESCR. It is perhaps not surprising that the rights to social security and housing have been addressed, rather than education or health, where often it is more difficult to demonstrate the impact on the individual of the withdrawal of public services. For instance, the impacts on individual complainants of longer waiting times in hospitals, or closing of health clinics in rural areas, or larger class sizes in schools, are often more difficult (but not impossible) to prove. Whereas, austerity measures in the area of housing and social security will often involve the withdrawal of tangible and individual benefits (eg: loss of or reduction in social security benefits, rental assistance, evictions). The subject matter of the cases may also reflect the stronger domestic legal protections for housing and social security rights, as opposed to education and health rights.
Overall, the cases so far have been relatively straightforward and I imagine the Committee was able to reach its decisions relatively easily. Nevertheless, the Committee has taken the opportunity to start to build its jurisprudence by setting out some general principles in relation to the relevant rights and on admissibility questions. For instance, in the Committee’s first case in which a violation was found, a home owner whose home was repossessed by the bank due to non-payment of mortgage repayments, brought a claim alleging that she did not receive adequate notice of the mortgage enforcement proceedings and became aware of the proceedings only after the auction was ordered. She claimed that this prevented a proper defence in those proceedings and therefore she did not in practice have access to effective and timely judicial protection of her right to adequate housing.
The Committee agreed that the notice given to her was inadequate and therefore found a violation of the Covenant Arts 11(1) read in conjunction with Art 2(1). The Committee emphasised that access to an effective remedy is a fundamental element of the right to adequate housing and that an effective remedy must include appropriate procedural protection (including reasonable notice of eviction or mortgage enforcement proceedings). Additionally, the Committee clarified that the due process protections embedded in the prohibition on forced eviction, as laid out in its General Comments No. 4 and No. 7, were equally relevant in the context of foreclosure. See also a case summary HERE.
The right to social security for prisoners One of the more interesting cases involved a person with a disability who had been receiving a State non-contributory disability pension. When the person was imprisoned the State reduced his pension by an amount equivalent to the cost of his maintenance in prison. The author of the Communication claimed violations of Articles 2 (non-discrimination) and 9 (social security) of the Covenant.
The Committee found that the reduction in the amount of the non-contributory pension was compatible with the Covenant, because it was prescribed by law, reasonable and proportionate to a legitimate aim and no disproportionate impact on the author was shown in this case. The Committee left the door open for future cases where an author can demonstrate a disproportionate and unreasonable impact.
On non-discrimination, the Committee found that discrimination was not substantiated and the State was justified in treating differently, people receiving non-contributory pensions who are in prison, compared with those who are not in prison and receive free food and accommodation at other public institutions (eg: hospitals).
Practice and procedure
In terms of practice and procedure, the Committee has pursued a number of important innovations which increase the transparency and visibility of their work and ensure greater engagement of civil society. These innovations are being watched, and in some cases, taken up, by other treaty bodies. For instance, the Committee instituted a ‘List of Pending Cases’ which is a public list of Communications received and registered by the Committee with a very brief description of the subject matter of the case. The Committee has also accepted Third Party Interventions in respect of some of its cases and has consolidated this practice by issuing ‘Guidelines on Third Party Interventions’ which explain how potential Intervenors should go about requesting to submit an Intervention.
The Committee has also recently put in place a ‘Follow-up Procedure’ in respect of its Views.[vi] It involves the State submitting a report on implementation of the Views within six months, then the Author submitting its comments on implementation and the Committee assessing those documents and giving its assessment and recommendations. The procedure and all documents will be public, unless otherwise determined by the Committee. Unlike some other Committees, the CESCR will not use a ‘grading system’ but will instead ‘elaborate a conclusion tailored to the particular circumstances of each case and recommendation’. Civil society and NHRI participation in the procedure is envisioned, but only in respect of ‘general recommendations’ (ie. not individual measures) and only with the permission of the Committee. Since the procedure was only adopted by the Committee at its session in September 2017, we have not yet seen it in action.
The Committee also has a mandate under the OP-ICESCR to conduct 'Inquiries' where there are 'grave or systematic' violations of economic, social or cultural rights. To date the Committee appears not to have commenced any Inquiries under the Optional Protocol, although given that the procedure is confidential, it is possible that it an Inquiry is underway, but confidentially. Given the tendency of economic and social rights violations to surface issues of a systemic nature, it seems that the Inquiry procedure, with its potential for country visits and broader consideration of systemic issues, could be very well suited to addressing economic and social rights violations.
The other good news on practice and procedure is that Communications to CESCR are currently taking around 1-2 years to be adjudicated. This is very swift compared to the approximately four years for a case before the Human Rights Committee, and compared to litigation in many domestic jurisdictions.
The Committee’s work under the OP-ICESCR has gotten off to a slow but solid start. It would be interesting to see some more cases on different topics and against a broader range of States. Given the low level and slow rate of ratifications, which remain concentrated in Western Europe and Latin America, this might not happen soon.
The Committee’s decisions have been careful, well-reasoned and reasonable. They have demonstrated that economic, social and cultural rights are fully capable of adjudication. Hopefully this will help to convince those who were skeptical about ESC rights’ justiciability and encourage more ratifications, so that access to justice in respect of Covenant rights can become a reality for many more people across the world.
[i] This figure does not include Communications received but not registered by the Committee (for reasons such as they plainly do not fulfil the OP-ICESCR criteria) as those cases are never made public.
[ii] Note that the ‘List of Pending Cases’ on the Committee’s website is not up to date. 2 cases were discontinued or withdrawn at the request of the complainant.
[iii] OP-ICESCR, Art 3(2)(b).
[iv] 22 State Parties (and 26 signatories) as of 6 November 2017.
[v] OP-ICESCR, Art 3(1).
[vi] E/C.12/62/4 Note that ‘follow-up’ is mandated by Article 9 of the OP-ICESCR and this new procedure sets out the Committee’s Working Methods for carrying out that mandate.