ESC Rights Update from Geneva: 35th session of the UN Human Rights Council (June 2017)
Economic, Social and Cultural Rights Update
35th session of the UN Human Rights Council 6 June to 23 June 2017
This Update aims to provide a summary of the initiatives regarding economic, social and cultural (ESC) rights at the 35th session of the Human Rights Council (June 2017). This Update provides information about:
Right to education
The annual resolution on the right to education was again presented by Portugal and adopted by consensus (A/HRC/RES/35/2). The resolution extended the mandate of the Special Rapporteur on the right to education by a further 3 years and addressed the topic of the Special Rapporteur’s report, non-formal education. The resolution urged States to protect the right to education including by:
Creating an enabling policy environment, as appropriate, for the recognition, validation and accreditation of knowledge, skills and competencies acquired through non-formal and informal learning, in order for such learning to be recognized and used in the formal education system or the job market;
Contemplating non-formal and informal learning in the context of emergency response plans, in order to ensure that education continues to be delivered; and
Putting in place a regulatory framework for education providers, including those operating independently or in partnership with States, guided by international human rights obligations, that establishes, at the appropriate level, inter alia, minimum norms and standards for the creation and operation of educational services, addresses any negative impact of the commercialization of education and strengthens access to appropriate remedies and reparation for victims of violations of the right to education.
The Special Rapporteur on the right to education submitted her report on ‘non-formal education’ (A/HRC/35/) and a country mission report on Chile. Her thematic report discussed the benefits of non-formal education as a means of reaching the estimated 263 million children and youth not in school and the approximately 775 million illiterate adults. The Special Rapporteur explains that non-formal education programmes provide a flexible, learner-centred means to improve educational outcomes and is particularly relevant for girls and groups in vulnerable situations, including children with disabilities, minorities and rural and impoverished children, who are disproportionately represented among out-of-school populations.
Whilst the distinction between formal and non-formal education is fluid and there is a large variety of forms of non-formal education, the report describes non-formal education as institutionalized, organized learning that is outside of the formal State-run system, both within and outside educational institutions and is often unregulated and does not lead to official certification. It emphasises the importance of integrating the 4 As into the design and oversight of non-formal education and notes:
‘When designed to be available, accessible, acceptable and adaptable, such programmes enable States to fulfil the right to education of learners who are excluded from the formal system. Furthermore, such programmes can promote holistic learning objectives that support cultural and linguistic rights.’
The Special Rapporteur recommends that States enable recognition, validation and accreditation of non-formal education and ensure learners are able to transition smoothly from non-formal to formal education.
A report by the OHCHR on ‘the realization of the equal enjoyment of the right to education by every girl’ (A/HRC/35/11) was also presented to the Human Rights Council at this session. The report underlines the multiple and intersecting obstacles that limit effective and equal access of girls to education, such as, gender stereotypes, discriminatory laws and policies, social and cultural norms, costs (including indirect costs and fees), privatisation of education, school regulations and dress codes, child pregnancy and gender-based violence.
The report links to the SDGs (especially Goals 4 (education) and 5 (gender equality)) and highlights that girls are at particular risk of being left behind and that it will be critical to collect data and scrutinise the situation of girls particularly in relation to secondary schooling, girls in rural areas and girls in vulnerable or marginalised situations. Targeted indicators will be crucial for ensuring accountability for the SDGs and in this regard the report suggests utilising ‘existing human rights monitoring and documentation methodologies that include qualitative indicators and context-specific analysis’. However, the report states:
‘Achieving the Sustainable Development Goals in line with human rights standards is more than how we monitor and measure targets. It also requires a deliberative process to understand the complex power structures that entrench discrimination and inequality, followed by efforts to dismantle those systems and build more just and equal societies.’
The Human Rights Council also adopted by consensus a resolution on ‘realising the equal enjoyment of the right to education by every girl’ (A/HRC/RES/35/22).
Right to health
The Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health presented his report to the Council on mental health (A/HRC/35/21) and country mission reports on Algeria and Croatia.
The report on mental health discussed the recurrence of human rights violations in mental health settings, all too often affecting persons with intellectual, cognitive and psychosocial disabilities and it called for a shift in the paradigm away from the reductionist biomedical model with its narrow focus on treating individual conditions, towards a human rights based population approach that considers social, economic and environmental factors and allows social determinants, risk and protective factors to be addressed. The Special Rapporteur explains:
‘Public policies continue to neglect the importance of the preconditions of poor mental health, such as violence, disempowerment, social exclusion and isolation and the breakdown of communities, systemic socioeconomic disadvantage and harmful conditions at work and in schools.’
‘Population-based approaches to mental health promotion move health systems beyond individualized responses towards action on a range of structural barriers and inequalities (social determinants) that can negatively affect mental health.’
His report emphasises participation of patients and users, inclusivity, empowerment of users and respect for their autonomy and prioritizing mental health promotion and prevention in public policy. He concludes with strong recommendations to States, including:
‘prioritize policy innovation at the population level, targeting social determinants and abandon the predominant medical model that seeks to cure individuals by targeting “disorders”’;
‘States take immediate measures to establish inclusive and meaningful participatory frameworks in the design of and decision-making around public policy’;
‘Prioritize mental health promotion and prevention in public policy’;
‘End all financial support for segregated residential mental health institutions, large psychiatric hospitals and other segregated facilities and services’;
‘Mainstream the right to mental health into health, poverty-reduction and development strategies and interventions, and explicitly include it in general and priority health policies and plans’; and
‘Develop a basic package of appropriate, acceptable (including culturally) and high-quality psychosocial interventions as a core component of universal health coverage’.
In its annual resolution on ‘the right of everyone to the enjoyment of the highest attainable standard of physical and mental health in the implementation of the 2030 Agenda for Sustainable Development’ (A/HRC/RES/35/23), adopted by consensus, the Human Rights Council strongly emphasised the links between the human right to health, poverty alleviation and the 2030 Agenda, including, but not only in relation to Goal 3. For instance, the Council said it is:
‘Concerned about the interrelatedness between poverty and the realization of the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, in particular the fact that ill health can be both a cause and a consequence of poverty.’
The resolution also recognised that the full realisation of human rights ‘contributes to the efforts to implement the health-related Sustainable Development Goals’ and conversely, the implementation of the health-related SDGs contributes to the full realization of human rights including the right to health. It urged States to work towards the full implementation of all SDGs and targets with a view to contributing to the realization of the right to health. Participation by rights holders in the design of health and SDG programs, and ‘health and human rights literacy’ of services users and providers, are also encouraged. Importantly, the resolution encouraged States, when reporting to the High-Level Political Forum (HLPF) on SDGs implementation, to include in their national reports references to human rights and the right to health.
Universal health coverage is underlined in the resolution, as is a call for international cooperation, technology transfer in relation to health and achievement of the official development assistance target for developed countries of 0.7% of GNI.
The resolution pursues the subject matter of the Special Rapporteur’s report only to a very limited degree, and less forcefully than the approach of the Special Rapporteur. It states:
‘Recognizing the need for States to address the social, economic and environmental determinants of health, as well as to address holistically a range of barriers arising from inequality and discrimination that impede access to health-care services’; and
‘Deeply concerned that persons with mental health conditions or psychosocial disabilities, in particular persons using mental health services, may be subject to, inter alia, widespread discrimination, stigma, prejudice, violence, social exclusion and segregation, unlawful or arbitrary institutionalization, overmedicalization and treatment practices that fail to respect their autonomy, will and preferences’.
Finally, the Council:
encourages the Special Rapporteur to ‘to continue to focus on the human rights dimension that could contribute to the effective implementation of the health-related Sustainable Development Goals and targets’ and to participate in international fora such as the WHO and the HLPF; and
requests the OHCHR to prepare a report which presents contributions of the right to health framework to the effective implementation and achievement of the health-related SDGs, identifying best practices, challenges and obstacles.
Also in relation to the right to health, the Council held a panel discussion on realizing the right to health by enhancing capacity-building in public health. The panel included the Director General of the World Health Organisation, the South African Ambassador and representatives of the health Ministries of Cuba, China and Liberia.
Extreme Poverty and Human Rights
France and a cross regional core group of States, presented the annual resolution (A/HRC/RES/35/19) on extreme poverty and human rights which was adopted without a vote. The resolution extended the mandate of the Special Rapporteur on extreme poverty and human rights for another 3 years and was otherwise not substantive since most of the paragraphs were repeated from previous years.
In a Statement during adoption, South Africa again raised its objection to the idea that extreme poverty exists in all countries of the world. South Africa’s position is that extreme poverty (as opposed to poverty) does not exist in developed countries and that suggesting otherwise negates the crucial issues of underdevelopment, marginalization, social exclusion and economic disparities.
The Special Rapporteur presented to the Council his thematic report on universal basic income (A/HRC/35/26) and country reports on China, Saudi Arabia and Mauritania. The report on universal basic income (UBI) explains the idea of a UBI and explains its history and some of the challenges.
The Special Rapporteur describes UBI as a ‘bold and imaginative solution’ to tackle the growing economic insecurity of people across the world which, the he asserted, has not been well-addressed by the human rights community to date. A UBI would be a means of redistributing wealth within society and would replace or supplement existing social protection systems. UBI essentially involves: the guarantee of a minimum regular payment; paid as a flat rate in cash to all; payments accrue unconditionally to every individual, rather than only to needy households; and it is funded primarily from taxation (not from lifetime contributions).
In conclusion, whilst not specifically endorsing UBI, the Special Rapporteur emphasises that economic insecurity is a fundamental threat to all human rights and he calls for ‘the rights to work, social security, and an adequate standard of living to be accorded prominence on the human rights agenda’ and for serious consideration of progressive fiscal policies and redistributive justice.
A theme that ran through all three of the country mission reports, was the importance of civil society participation in the realisation of economic, social and cultural rights and poverty alleviation. To further discuss these issues, the Special Rapporteur participated in a side event co-hosted by GIESCR and ISHR on ‘the role of civil society participation in the promotion of economic, social and cultural rights and poverty alleviation’. Professor Sandra Liebenberg of the Committee on Economic, Social and Cultural Rights also spoke at this event to underline the importance of civil society participation in the work of the Committee and in the realisation of ESC rights at country level.
Climate change and human rights
The annual resolution of the Human Rights Council on human rights and climate change, initiated by Bangladesh, Vietnam and the Philippines, this year focused on the effects of climate change on the human rights of migrants and persons displaced across international borders (A/HRC/RES/35/20). The resolution was adopted without a vote and notable elements included:
Noted the urgency of protecting and promoting the human rights of migrants and persons displaced across international borders, in the context of the adverse impacts of climate change;
Called on States to consider human rights within the framework of the UNFCCC;
Requested the OHCHR to organize an intersessional panel discussion, before phase II of the intergovernmental process leading to the global compact on safe, orderly and regular migration, with the theme ‘Human rights, climate change, migrants and persons displaced across international borders’; and
Requested the OHCHR to submit a summary report of the panel discussion to the stocktaking meeting of the preparatory process of the global compact on safe, orderly and regular migration and to the work of the Warsaw International Mechanism for Loss and Damage, and particularly the Task Force on Displacement and to the Human Rights Council; and
Requested the OHCHR to research and report on addressing human rights protection gaps in the context of migration and displacement of persons across international borders resulting from the sudden onset and slow onset adverse effects of climate change and the necessary means of implementation of adaptation and mitigation plans of developing countries to bridge protection gaps.
The co-sponsors in introducing the resolution, underscored the importance of addressing the human rights situation of migrants and refugees in the context of climate change, given their vulnerability to the effects of climate change. They also stressed the importance of ‘common but differentiated responsibilities’ and of linking the human rights and climate change work with the process for a global compact for safe, orderly and regular migration.
With the recent withdrawal of the US from the Paris Agreement, the negotiations for the resolution proved interesting, with the US delegation scrutinising the text and raising a large number of concerns and proposals which were largely rejected by the core group. The EU and the US took the floor during the adoption of the resolution. The EU confirmed its support for the topic of the resolution and for the Paris Agreement. However, it said it regretted that the text had departed from the previously agreed language of the Paris Agreement.
The US acknowledged that the effects of climate change had a range of implications for the enjoyment of human rights. However, it said the resolution ignored the diversity in the drivers of migration and the Council was not the place to address issues of adaptation and mitigation.
Importantly, this resolution established a further stream of work on climate change and human rights for the OHCHR and the Council and made the crucial link between the intergovernmental process on migration, the UNFCCC and the Council’s work on human rights and climate change.
Together with partners from the Geneva Climate Change Consultation Group (GeCCO), GIESCR co-hosted a side event on ‘Climate induced movement of people – ensuring a human rights based approach’ which heard presentations from Ambassador Kahn, Permanent Representative of Fiji and main negotiator for the Fiji Presidency of UNFCCC COP23, Ms Pia Oberoi, Adviser on Migration and Human Rights, OHCHR, Ms Dina Ionesco, Head of the Migration, Environment and Climate Change Division, IOM and Ms Sandra Sandra Ratjen of Franciscans International.
The OHCHR also released its report on children’s rights and climate change (A/HRC/35/13) and held a side event to discuss the report. The report looks at the key impacts of climate change on children, the human rights obligations of States and responsibilities of other actors in this context and it identifies good practices in promoting children’s rights in climate action such as educational programs on environmental stewardship and climate change and disaster risk reduction. Other good practices include: advocacy and political participation platforms such as Youth Climate Ambassadors and the Children’s Parliament in Namibia; climate litigation by today’s children to protect future generations; and initiatives which incorporate the principle of the best interests of the child throughout disaster risk reduction, sustainable development and climate change action.
The report concludes that ‘fundamentally, a child rights-based approach requires:
Ambitious mitigation measures to minimize the future negative impacts of climate change on children to the greatest extent possible by limiting warming to no more than 1.5°C above pre-industrial levels, as called for in the Paris Agreement’; and
‘Mitigation and adaptation actions that are the product of participatory, evidence-based decision-making processes that take into account the ideas and best interests of children as expressed by children themselves’.
In the recommendations, the report makes the important link to the Sustainable Development Goals:
‘Implementing the Sustainable Development Goals relating to child poverty and malnutrition, access to education, child mortality and health, and water and sanitation, among others, in such a way as to enhance children’s resilience to climate change and reduce inequalities’.
In relation to the Committee on the Rights of the Child the report recommends that it routinely address climate change in its Concluding Observations to States and ‘consider ways to hold States accountable for their climate commitments, to better document the impacts of climate change and to promote rights-based climate action.’ It also recommends that civil society inputs to the Committee review process address climate change and draw attention to the adequacy of States’ individual contributions to efforts to limit climate change to 1.5°C above pre-industrial levels and that States use the Universal Periodic Review to promote accountability for climate and human rights commitments.
Another interesting recommendation is that ‘States and other responsible actors should take measures to ensure that children have access to effective remedies when they suffer harm from climate action and inaction’, including by ‘integrating the right to a healthy environment and the rights of future generations in national constitutions and legislation’ and ‘employing extraterritorial jurisdiction and taking other measures, as appropriate, to ensure responsible conduct by businesses not only in emissions reductions but also in remedying past harm’.
Other initiatives of interest:
Human rights in cities and human settlements
A new resolution focusing on human rights in cities and human settlements (A/HRC/RES/35/24) was presented by Brazil and Ecuador and adopted by consensus.
The resolution describes urbanisation as one of the most transformative trends of the 21st century and links to the New Urban Agenda coming out of Habitat III, the SGDs and particularly Goals 11 and 12, and the Paris Agreement on climate change. It also ‘notes’ the initiatives to establish a new ‘right to the city’ which has arisen particularly from Latin American movements. The resolution draws on many of the themes discussed during the Habitat III conference, such as the challenges of poverty and inequalities in cities, emphasising ‘safe, inclusive, accessible, green and quality public spaces’ and environmental and eco-system sustainability.
Whilst the resolution puts forward important progressive ideas which are founded in the human rights framework and a vision for human rights friendly cities, it only partially recognises the centrality of the rights contained in the ICESCR which already incorporate these ideas and which are legally binding human rights obligations on States. This perhaps reflects the less than whole-hearted embrace of human rights at Habitat III and in the New Urban Agenda. It might be more helpful for States if the resolution more deliberately underlined the relevant human rights obligations and their importance in the context of the New Urban Agenda and the 2030 Agenda for Sustainable Development.
Resolution on the contribution of development to human rights
China presented a new and divisive resolution on ‘the contribution of development to the enjoyment of all human rights’ (A/HRC/RES/35/21) which was adopted after a vote of 30 to 13, with 3 abstentions. The vote split largely down developed / developing States lines and the vote and the Statements made by States revealed in part the schism in the Council between those who recognise the right to development and those who do not.
The resolution calls upon all countries to realize people-centred development of the people, by the people and for the people, and also calls upon all States to spare no effort in promoting sustainable development, in particular while implementing the 2030 Agenda for Sustainable Development, as it is conducive to the overall enjoyment of human rights. The resolution also requests the Advisory Committee to conduct a study on the ways in which development contributes to the enjoyment of all human rights by all and on best experiences and practices. It is notable that the resolution talks more about development than human rights and suggests erroneously that if economic development is achieved, human rights will follow.
China introduced the resolution by stating that the right to development is the only way to guarantee the other rights of all people. The Non-Aligned Movement group of States supported the resolution and emphasised that the right to development should be considered on the same footing as other human rights and that the 2030 Agenda required greater international cooperation. Cuba, Egypt also made supportive statements.
The EU took the floor to stress that development and human rights were interlinked and mutually reinforcing but the resolution wrongly suggests that development was more important than human rights. The EU said it is committed to the universality of human rights and therefore it could not accept language that suggested that lack of development could be invoked to infringe basic human rights.
The US also made a Statement saying that development, including sustainable development, contributed to a better respect of human rights. However, all States should be encouraged to achieve their international obligations regardless of their level of development and the US could not support the omission of language on democracy or suggestions that development is a prerequisite to the realisation of human rights.
Migration and displacement
This was a theme that arose in a number of different contexts during this Council session, including a resolution specifically on ‘the protection of the human rights of migrants: the global compact for safe, orderly and regular migration’ (A/HRC/RES/35/17). This resolution, which was presented by Mexico and adopted by consensus, requested:
the OHCHR to participate and contribute to the preparatory process of the global compact for safe, orderly and regular migration, with a view to providing human rights-based input and mainstreaming human rights throughout the global compact;
the OHCHR to submit, as co-Chair of the Global Migration Group Working Group on Migration, Human Rights and Gender, principles and practical guidance on the protection of the human rights of migrants in vulnerable situations, and report to the Human Rights Council;
the OHCHR to report to the Council (and transmit to the GA) on the compendium of principles, good practices and policies on safe, orderly and regular migration in line with international human rights law; and
the Special Rapporteur on the human rights of migrants to ‘continue to report on solutions and to contribute to and participate in key discussions relating to the promotion and protection of the human rights of migrants, including with respect to the large movement of migrants, by identifying best practices and concrete areas and means for international cooperation in order to enhance the protection of the human rights of migrants’.
Introducing the resolution Mexico strongly advocated for ‘human beings’ to be at the centre of the debate on migration and for human rights to occupy the primary place in the global compact. Mexico called on States to use the expertise and tools of the OHCHR to that end. For Mexico, the increasing trend to criminalize migration was of particular concern.
The EU made a Statement during the adoption where it confirmed its commitment to the New York Declaration and the process for the global compact on migration and to the Council supporting that process. However, it raised concerns about language in the draft resolution regarding the criminalization of regular migration and asserted that State sovereignty justified laws about entry into State territory.
The US also made an explanation of the vote emphasising that none of the paragraphs in the resolution amounted to obligations for States and the US would continue to take steps to protect its sovereignty and security, including by controlling its borders.
The Council also held a panel discussion on the human rights of unaccompanied migrant children which heard from the Committee on the Rights of the Chile, UNICEF, the OHCHR and an unaccompanied migrant young person. The panel discussed challenges and best practices by countries of origin, transit and destination on the protection of the human rights of unaccompanied migrant children and adolescents and made suggestions on ways to include the human rights of these groups within the global compact on migration.
The Special Rapporteur on migrants presented his final report (A/HRC/35/25) to the Council before the end of his term in office. His report proposed the development of an agenda within the framework of the United Nations, in parallel with the proposed global compact for safe, orderly and regular migration and the 2030 Agenda for Sustainable Development, to be known as the 2035 agenda for facilitating human mobility. ‘Based on targets 10.7 and 8.8 of the Sustainable Development Goals, the agenda would encompass eight human mobility goals, together with targets and indicators, aimed at facilitating human mobility in the next 15 years, while ensuring respect for the human rights of all migrants based on the principles of non-discrimination and equality’.
At the initiative of Austria, Uganda and Honduras, the Council also adopted a Decision (A/HRC/35/101) to hold a ‘Panel discussion on the human rights of internally displaced persons in commemoration of the twentieth anniversary of the Guiding Principles on Internal Displacement’ during the 38th session. It was pleasing to see that this Decision, and many similar decisions regarding panel discussions, specifically state that the ‘discussion shall be fully accessible to persons with disabilities’.
Mandate of the Special Rapporteur on disabilities extended
The mandate of the Special Rapporteur on the rights of persons with disabilities was extended for a further 3 years (A/HRC/RES/35/6). The mandate of the Special Rapporteur includes:
‘to identify, exchange and promote good practices relating to the realization of the rights of persons with disabilities and their participation as equal members of society’,
to gather information about violations,
‘make concrete recommendations on how to better promote and protect the human rights of persons with disabilities, including on eliminating discrimination, violence and social exclusion’, and how to contribute to the realization of the Sustainable Development Goals, and related data collection efforts, for persons with disabilities.
Business and human rights
The Working Group on the issue of human rights and transnational corporations and other business enterprises submitted to the Council country mission reports on Korea and Mexico and a thematic report focusing on the challenges and opportunities for small and medium-sized enterprises in the implementation of the Guiding Principles (A/HRC/35/32).
In addition, the Working Group presented its study on ‘best practices and how to improve on the effectiveness of cross-border cooperation between States with respect to law enforcement on the issue of business and human rights (A/HRC/35/33).
The Council adopted by consensus a resolution extending the mandate of the Working Group for a further 3 years (A/HRC/RES/35/7). With respect to the Working Group’s work, the resolution:
‘Encourages the Working Group to promote good practices and identify challenges in the implementation of the Guiding Principles’;
‘Decides that the Working Group shall guide the work of the Forum and prepare its annual meetings, and invites the Working Group to chair the Forum' and submit a report on it to the Council; and
‘Requests the Working Group ... to give due consideration to the implementation of the Guiding Principles in the context of the 2030 Agenda for Sustainable Development’.