ESC Rights Update from Geneva: 63rd session of the Committee on Economic, Social and Cultural Rights (12 to 29 March 2018)
The Committee on Economic, Social and Cultural Rights (CESCR) held its 63rd session from 12 to 29 March 2018. This Update provides a summary of the meetings and key developments.
State Reporting Procedure The Committee considered the State Party reports for the following States: Mexico, Niger, Bangladesh, Central African Republic, Spain and New Zealand
It was very pleasing to see Bangladesh, Niger and Central African Republic appearing before the Committee for the first time to discuss their Initial Reports. The Committee has published its Concluding Observations for all States HERE.
Pre-session The Committee’s pre-sessional Working Group met from 3 – 6 April 2018, and it adopted Lists of Issues in respect of Cameroon, Estonia, Kazakhstan, Mauritius, Slovakia.
The Lists of Issues are available HERE.
Communications under the OP-ICESCR The Committee has now registered 26 communications and dealt with 17 of those. The Committee has made four substantive decisions and found 12 communications inadmissible. One communication was withdrawn by the complainant.
The Committee considered 1 Communication during this session and found it inadmissible.
Jaime Efraín Arellano Medina v Ecuador (7/2015) (E / C.12 / 63 / D / 7/2015).
The case was against Ecuador and involved allegations of violations of the rights to work (Art 6), to just and favourable conditions of work (Art 7) and to health (Art 12). The author was an employee of the Ecuadorian State Petroleum Corporation, ‘Petroecuador’, for 30 years. In 2007 he filed a petition for termination of the employment relationship under the Labour Code because, he said, the company did not maintain the minimum cleaning conditions and adequate measures for the handling of chemical and harmful substances.
The author contended that he was entitled to a workers’ compensation payment pursuant to the relevant collective agreement, in addition to his entitlement under the Labour Code. The employer paid the author an amount pursuant to his Labour Code entitlement but not pursuant to the collective agreement. The author took the dispute to Court and was successful at first and second instance. The State appealed again and the National Court of Justice dismissed the author’s claim. The author then brought a claim to theConstitutional Court, which on April 9, 2014, declared that there was no violation of constitutional rights.
The State argued that the Communication was inadmissible on the grounds that:
domestic remedies were not exhausted by the author - Art 3(1);
it was not filed within one year after the exhaustion of domestic remedies - Art 3(2)(a);
the relevant facts occurred in October 2007, before the date of entry into force of the Protocol Optional for Ecuador (May 5, 2013) – Art 3(2)(b); and
the allegations of violations of Articles 6 & 7 were manifestly unfounded and did not demonstrate a violation of the Covenant rights - Art 3(2)(e).
In relation to Article 3(1) of the Optional Protocol, the State alleged that the author had failed to pursue available domestic remedies with respect to his claim of damage to his health due to the working conditions. The State described specific domestic processes available to the author, which were not pursued by the author. The Committee found that the author had not convincingly refuted that the domestic remedies mentioned by the State party would not have been effective in remedying the alleged violations. Therefore, the Committee found that the author did not exhaust all remedies available in the domestic jurisdiction with respect to the right to health allegations and therefore those allegations were inadmissible under Article 3(1).
In relation to admissibility under Article 3(2)(a), the State contended that the decision of the Constitutional Court should not be considered a ‘domestic remedy’ because it was the National Court of Justice that terminated the labour law proceedings and the petition to the Constitutional Court dealt only with alleged violations of Constitutional Rights. The Committee disagreed and found that ‘domestic remedies’ are those remedies available to author within the domestic jurisdiction, ordinary and extraordinary, directly related to the initial events that gave rise to the alleged violation, and prima facie can be reasonably considered as effective to repair the alleged violations of the Covenant. Therefore, domestic remedies were exhausted with the ruling of the Constitutional Court of April 9, 2014 and the Communication was submitted within the 1 year time period.
In relation to Article 3(2)(b) of the Optional Protocol, it is sufficient for the relevant facts to continue after the date of entry into force (even if they commenced before that date) and judicial or administrative decisions of national authorities are also considered part of ‘the facts’ under Article 3(2)(b): when they are the result of processes directly related to the initial events, acts or omissions, which gave rise to the violation; and provided they can repair the alleged violation, according to the law applicable. The Committee found that the judgment of the Constitutional Court of April 9, 2014, met these criteria and therefore the Communication was admissible pursuant to Article 3(2)(b).
Finally, in relation to Article 3(2)(e), the Committee said the author’s claim at its core questioned the interpretation of Ecuadorian law by national Courts. It alleged that the National Court of Justice had incorrectly applied the law with respect to the author’s entitlement to a ‘bonus’ under the collective agreement (and the legal concepts of ‘labour eviction’ and ‘voluntary separation’ under Ecuadorian law). The Committee noted its own jurisprudence - that its work is confined to analysis of whether the facts, including the application of national legislation, reveal a violation by the State of Covenant rights and that it is for the domestic courts to evaluate the facts and evidence in each particular case, and to interpret the relevant legislation.
The Committee said it must only make an evidentiary assessment or an interpretation of domestic law applied to the case, when the domestic Court’s assessment is manifestly arbitrary or equivalent to a denial of justice, and has led to the violation of a Covenant right. Since there was no information provided to the Committee to suggest this, the Committee found that the author had not sufficiently substantiated his allegations regarding Articles 6 and 7 of the Covenant, and they were therefore inadmissible under Article 3(2)(e), of the Optional Protocol.
The documentation is published HERE.
Elections The elections for membership of the Committee on Economic, Social and Cultural Rights were held on 16 April 2018 in New York (in the ECOSOC). 9 seats were open for election.
After the elections, the Committee is in the unusual situation where there are 2 seats that were open for election but no candidate was elected. The ECOSOC decided to hold a further election in July 2018 in respect of those 2 seats (Asia, GRULAC).
It is also notable that unfortunately the gender balance on the Committee has gone backwards. One female member, Ms Virginia Bras Gomes (Portugal) will be stepping down from the Committee on 31 December 2018, and another female member, Ms Shin was re-elected. The remainder of those elected were men. Unless female candidates are elected in the July elections, the Committee will have only 4 female Committee members from 2019 (out of 18 members).
Further information is available HERE.
The sixty-fourth sessionof the Committee will be held from 24 September to 12 October 2018 during which the Committee will consider the reports of:
Argentina, Cabo Verde, Germany, Mali, South Africa, Turkmenistan
The deadline for civil society submissions in respect of the review of these countries is 31 August 2018.
The Programme of Work for the 64thsession (including dates for the Dialogues) is not yet available but will be posted on the website in the coming weeks.
The following States will be reviewed in future sessions (probably 2019) but have not yet been scheduled: Bulgaria, Cameroon, Estonia, Kazakhstan, Mauritius, Slovakia, Switzerland, Yemen.