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COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS CONCLUDES FALL SESSION
04 December 1998
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HR/ESC/98/46
4 December 1998
Issues Recommendations in Response to Reports of Israel, Cyprus,
Switzerland, Germany, and Canada; Issues General
Comments on Domestic Application of Covenant,
National Human Rights Institutions
The Committee on Economic, Social and Cultural Rights ended its autumn session today by releasing conclusions and recommendations on situations in five countries.
Those nations -- Israel, Cyprus, Switzerland, Germany, and Canada -- presented reports to the panel over the preceding three weeks in keeping with their obligations as State's parties to the International Covenant on Economic, Social and Cultural Rights. The international treaty has 137 States parties and the Committee is charged with monitoring its implementation.
The panel's 18 experts contended, among other things, that Israel's "excessive emphasis" upon itself as a "Jewish State" had led to discrimination and accorded "second-class status" to non-Jewish citizens.
They cited serious concern at the incidence of domestic violence against women and children in Cyprus, and recommended that the Government "adopt appropriate policy to prevent and tackle the problem... in all its complexity".
They noted "with alarm" that "only 12 per cent of public servants within the science and technology sector of the former German Democratic Republic (GDR), including teachers, scientists and professionals, have been re-employed and that the rest remain without employment or adequate compensation or a satisfactory pension plan" and said they feared that "the majority of the affected people may have been dismissed from their positions for political rather than for professional or economic reasons". The Committee called for the Government of Germany to provide suitable compensation, employment, or pensions "as an act of national reconciliation".
The panel cited a "serious incidence of domestic violence against women" in Switzerland, based on the Government's own estimate of 110,000 cases per year, and lamented a lack of further statistics on such violence and on child abuse, including paedophilia. The Committee requested that the next Swiss report contain updated information on efforts to combat such abuses.
And it chided Canada, in a lengthy series of conclusions and recommendations, for not taking the Committee's major concerns and recommendations into account in 1993 "when it adopted policies at federal, provincial and territorial levels which exacerbated poverty and homelessness among vulnerable groups during a time of strong economic growth and increasing affluence".
Earlier in the week, the Committee issued general comments on domestic application of the Covenant and on "the role of national human rights institutions in the protection of economic, social and cultural rights".
The four-page document on domestic application notes, among other things, that in general, legally binding international human rights standards such as set out in the Covenant should operate directly and immediately within the domestic legal system of each State party; and that the right to an effective remedy need not be interpreted as always requiring a judicial remedy -- that administrative remedy would, in many cases, be adequate -- but that there were some obligations under the Covenant, such as those concerning non-discrimination, which seemed to require some form of judicial remedy.
The shorter general comment on the role of national human-rights institutions notes, among other things, that one means through which important steps could be taken to realize the provisions of the Covenant was through the work of national institutions, but that unfortunately the role given to such institutions had too often either not been sufficiently substantial or had been neglected or given a low priority.
The nineteenth session of the Committee also featured a day of general discussion on the right to education, with officials of other United Nations agencies concerned with the right and representatives of universities and governmental organizations debating how to pursue and measure progress towards achieving the right.
The Committee's next session will be held from 26 April to 14 May 1999. At that gathering the panel is expected to examine reports from Denmark, Bulgaria, Iceland, Ireland and Tunisia.
Conclusions and recommendations on country reports
The Committee noted among positive developments in Israel the enactment in 1995 of a National Health Insurance Law which provided for primary health care and ensured equal and adequate health treatment for each citizen and permanent resident; and the recent establishment of the Authority for Advancement of the Status of Women.
It cited as a factor or difficulty affecting implementation of the Convention "Israel's emphasis on its security concerns, including its policies over closure", which it said "has hampered the realization of economic, social and cultural rights within Israel and the occupied territories".
It expressed concern and offered recommendations on a number of topics, among them that "excessive emphasis upon the State as a 'Jewish State' encourages discrimination and accords a second-class status to non-Jewish citizens. The Committee notes with concern that the Government of Israel does not accord equal rights to its Arab citizens, even if they comprise over 19 per cent of the total population of Israel. This discriminatory attitude is apparent in the comparatively lower standard of living of the Israeli Arabs, as a result inter alia of lack of access to housing, water, electricity and health care, and their lower level of education".
It remarked "with grave concern" that discrimination was inherent in the Status Law of 1952 that authorized the World Zionist Organization/Jewish Agency and its subsidiaries including the Jewish National Fund, since the organizations "control most of the land in Israel" and "are chartered to benefit Jews exclusively. Despite the fact that the institutions are chartered under private law, the State of Israel nevertheless has a decisive influence on their policies and thus remains responsible for their activities". The Committee urged Israel to review the status of its relationship with these organizations.
The panel also cited concern over the situation of Jahalin Bedouin families forcibly evicted from ancestral lands to make way for expansion of Jewish settlements, and urged the Government to recognize existing Arab Bedouin villages, the land rights of inhabitants, and their right to basic services; it regretted that Israel had maintained "general closures" of the occupied territories since 1993, restricting and controlling movement of people and goods between Israel and the West Bank and Gaza Strip, between Jerusalem and the West Bank, and between the West Bank and the Gaza Strip, and noted with concern that these restrictions applied only to Palestinians. Referring to such closures, it called on the Government "to respect the right to self-determination... which provides that 'in no way may a people be deprived of its own means of subsistence".
The Committee urged Israel "to cease the practice of facilitating the building of illegal settlements and constructing bypass roads, expropriating land, water and resources, the demolition of houses and arbitrary evictions" and called on the Government "to immediately take steps to respect and implement the right to an adequate standard of living, including housing, of the Palestinian residents of East Jerusalem and the Palestinian Arabs in the mixed cities"; and noted with deep concern "that a significant proportion of Palestinian Arab citizens of Israel continue to live in unrecognized villages where they have no access to water, electricity, sanitation and roads".
It also requested additional information on the situation in the occupied territories "to ensure full compliance with reporting obligations"; recommended steps "to ensure the full legal application of the Covenant within the domestic legal order"; called for a reassessment of the country's Permanent Residency Law; and urged adoption of "effective measures to combat domestic violence against women and to promote equal treatment of women in the field of employment".
The Committee listed among positive aspects to the report of Cyprus the status accorded to international legal instruments, including the Covenant, in the domestic legal order and appreciated the fact that they were superior to national law in the legal hierarchy and could be invoked directly by individuals before the courts. It also commended the efforts of the Government in continuing to provide services, such as electricity supply and payment of pension benefits, to the population living in the part of the island that it did not control.
Cited as a factor impeding implementation of the Covenant was the continuing partition of Cyprus.
The Committee expressed concern and offered recommendations, among other things, over the lack of information available on the enjoyment of economic, social and cultural rights by the Cypriot population living in the area of the island not controlled by the Government. It noted serious concern at the incidence of domestic violence against women and children in Cypriot society and said the continuation of this situation "calls into question whether the State party has made its best efforts to comply with its obligations under articles 10 and 12 of the Covenant. In particular, the Government appears to have failed to adopt an adequate prevention policy and to enforce fully the existing legislative measures to combat violence in the family, and to assist victims of such violence". The panel recommended that the Government "adopt appropriate policy to prevent and tackle the problem of domestic violence against women and children in all its complexity and requests that the next report contain information on measures adopted to deal with it".
Alarm was expressed over "allegations of inhuman or degrading treatment of mentally ill patients in some health institutions" and the Committee, "while taking note of the delegation's statement that the situation as regards the treatment of mentally ill people 'has improved dramatically',... emphasizes the need to review thoroughly... health policy towards these patients".
The panel recommended that Cyprus's recently established National Institution for Human Rights be promptly promulgated into law and that its independence be guaranteed, and recommended that the Government "intensify its efforts to guarantee the equal enjoyment by men and women of their economic, social and cultural rights", among other things by taking steps to guarantee equal pay for equal work, by abrogating discriminatory provisions of Social Security legislation, and by enacting a bill to abolish discrimination in acquisition and transmission of nationality.
It called for steps to improve protection of problems faced by domestic workers and urged the Government to monitor more closely the problem of forced prostitution in Cyprus "with a view to rescuing those victims who are trapped or forced into it and to protect their rights under the Covenant".
And it recommended that a number of pending bills and proposed regulations in Cyprus related to economic, social and cultural rights "be speedily submitted for Parliamentary or Cabinet approval".
Among positive aspects of the report of Germany, the Committee cited "a visible shift in policy" under the newly elected Government which "could lead to the progressive realization of economic, social and cultural rights to a fuller extent and could be particularly beneficial to the new Lander and reduce the still existing economic gap between the old and new Lander".
A factor impeding implementation of the Covenant was that "the full integration of East and West Germany remains partly unfulfilled despite determined efforts to realize this objective", the panel noted.
Among matters of concern mentioned by the Committee and recommendations offered by the panel were that the Covenant did not have sufficient status within the German legal system; that unemployment was still high in Germany, and twice as high in the East as in the West, and most prevalent among women and foreigners; it requested more precise statistics and data on unemployment in the country's next report and urged the Government to implement its various educational programmes for youth and other vulnerable groups, especially those intended to create employment and those aimed at improving employment levels in the East.
The Committee noted "with alarm" that "only 12 per cent of public servants within the science and technology sector of the former GDR, including teachers, scientists and professionals, have been re-employed and that the rest remain without employment or adequate compensation or a satisfactory pension plan. The Committee fears that the majority of the affected people may have been dismissed from their positions for political rather than for professional or economic reasons in violation of Article 2 (2) of the Covenant... As an act of national reconciliation, the Committee calls on the State Party to ensure that compensation will be provided to civil servants, professional and scientists associated with the old regime in the former GDR and to ensure that such compensation is both adequate and fair with a view to absorbing as many of them as possible within the mainstream of Germany's life and/or offer them fair compensation or appropriate pension plans".
The panel requested measures to redress the situations of different categories of asylum-seekers in Germany; recommended that civil servants not involved in essential services be accorded the right to strike; called for measures against trafficking in women or their exploitation in other ways; called for measures to regulate child labour; sought increased efforts to prevent child abuse, child exploitation and child pornography; recommended that the Government avoid increases in university tuition; and urged it "to accelerate the process of integration between East and West Germany on all fronts... to reduce the gap that may still exist between them".
Cited among positive aspects of the report of Switzerland were that the Covenant had begun to be accepted as an integral part of the Swiss legal system, and that the Swiss courts, notably the Federal Tribunal, had on some occasions referred to the provisions of the Covenant. The Committee also expressed appreciation for the range and quality of services provided to the population, among them social benefits for the elderly and the disabled.
Concern was expressed, among other things, about the federal structure of the Swiss Government, which required that certain rights be provided for by the Cantons; the Committee said the Federal Government nevertheless had responsibility for ensuring implementation of the Covenant. The panel recommended harmonization of Cantonal laws "to ensure due respect for the provisions of the Covenant". The Committee furthermore said it disagreed "with the position of the State party that provisions of the Covenant constitute principles and programmatic objectives rather than legal obligations, and that consequently the provisions of the Covenant cannot be given legislative effect". It recommended that the Government "take appropriate steps to give full legal effect to the Covenant".
Concern was expressed that certain Covenant rights were not Constitutionally recognized, such as the rights to work, education, and culture; that despite the country's high level of development, unacceptable levels of poverty existed among certain segments of the population, particularly women; and that a relatively high proportion of women worked in lower-paid jobs and among part-time and "on-call workers". It also was noted that "despite the existence of legislation for protection against discrimination, a de facto discrimination against women and ethnic minorities continues to exist". It recommended that all possible measures be taken to make it easier for women who wish to work outside the home to be able to do so, and to guarantee equal access to employment and equal wages for equal work for women and men.
Concern was announced over "the serious incidence of domestic violence against women which the State party has estimated at 110,000 cases per year", and a lack of further statistics on such violence, and on child abuse, including paedophilia, was regretted by the Committee. The panel requested that the next Swiss report contain updated information on efforts to combat domestic violence and paedophilia.
Among other recommendations were that draft legislation concerning the right to strike of civil servants be adopted as soon as possible; that International Labour Office (ILO) Conventions 98 and 174 be ratified quickly; and that the Government review its system of health care "to prevent the high costs... from having a negative effect on the standard of living of families".
The Committee noted several positive developments in the report of Canada, including that for the last five years the country had been ranked at the top of the United Nations Development Programme's Human Development Index; that the Supreme Court of Canada had held that section 15 of the Canadian Charter of Rights and Freedoms imposed positive obligations on governments to allocate resources and implement programmes to address social and economic disadvantage; and that in recognition of the serious issues affecting Aboriginal peoples in Canada, the Government had appointed a Royal Commission on Aboriginal Peoples (RCAP) which released a wide-ranging report in 1996 addressing many of the rights enshrined in the Covenant.
Listed among factors and difficulties impeding implementation of the Covenant were that since 1994, Canada had slashed social expenditures in addressing budget deficits and had not paid sufficient attention to the adverse consequences on economic, social and cultural rights, especially for vulnerable groups. The Committee also regretted that unless a right under the Covenant was implicitly or explicitly protected by the Charter, through federal-provincial agreements, or incorporated directly into provincial law, there was no legal redress available to either an aggrieved individual or the Federal Government where provinces had failed to implement the Covenant.
Among causes for concern mentioned by the Committee were that it had received information about a number of cases in which claims were brought by people living in poverty -- usually women with children -- against Government policies which denied the claimants and their children adequate food, clothing and housing, and that Provincial Governments had urged upon their courts in these cases an interpretation of the Canadian Charter of Rights and Freedoms which would deny any protection of Covenant rights. The Committee further said it was deeply concerned to receive information that provincial courts in Canada had routinely opted for an interpretation which excluded protection of the right to an adequate standard of living and other Covenant rights despite the fact that the Supreme Court had stated that the Charter can be interpreted so as to protect these rights. It recommended that Governments at all levels "adopt positions in litigation which are consistent with their obligation to uphold the rights recognized in the Covenant".
A "gross disparity" was noted between the economic, social and cultural situation of Aboriginal peoples and that of most Canadians, and the Committee said there had been "little or no progress in the alleviation of social and economic deprivation among Aboriginal people" -- that there was inadequate housing, endemic mass unemployment, a high rate of suicide, and a lack of such standard amenities as safe drinking water. It endorsed the recommendations of the RCAP that policies which violated Aboriginal treaty obligations and the "extinguishment, conversion or giving up of Aboriginal rights and title" should on no account be pursued by the Government of Canada; and said it was greatly concerned that the recommendations of the RCAP had not yet been implemented: it recommended urgent implementation.
The replacement of the former Canada Assistance Plan (CAP) by the Canada Health and Social Transfer (CHST) entailed a range of adverse consequences for the enjoyment of Covenant rights, the Committee said. The CAP set national standards for social welfare, required that work by welfare recipients be freely chosen, guaranteed the right to an adequate standard of living, and facilitated court challenges to federally funded provincial social-assistance programmes which did not meet the standards. In contrast, the Committee said, the CHST had eliminated each of these features and had significantly reduced the amount of social assistance.
And it reported concern that the Government had not taken the Committee's major concerns and recommendations into account in 1993 "when it adopted policies at federal, provincial and territorial levels which exacerbated poverty and homelessness among vulnerable groups during a time of strong economic growth and increasing affluence".
The Committee recommended, among other things, that Canada consider reestablishing a national welfare programme with designated cash transfers for social assistance and social services which included universal entitlements and national standards, specifying a legally enforceable right to adequate assistance for all persons in need, a right to freely chosen work, a right to appeal and a right to move freely from one job to another.
It urged establishment of an official poverty line and recommended that federal and provincial agreements ensure that services such as mental health care, home care, child care, and attendant care, shelters for battered women, and legal aid for non-criminal matters were available at levels that ensured an adequate standard of living.
It urged that federal, provincial and territorial Governments address homelessness and inadequate housing as a "national emergency" and that they implement a national strategy for reduction of homelessness and poverty.
The Committee also urged the Federal Government to take steps to ensure that provinces and territories were aware of their legal obligations to respect the Covenant and that Covenant rights were enforceable within provinces and territories; encouraged measures to ensure women's economic, social and cultural rights; recommended that a greater proportion of budgets at all levels be allocated specifically to measures to address women's poverty and the poverty of their children, affordable day care, and adequate support for shelters for battered women; and urged review of "workfare" legislation to ensure that none of the provisions violated the standards of the Covenant.
General Comment on Domestic Application of Covenant
The four-page document on domestic application notes, among other things, that in general, legally binding international human rights standards such as those set out in the International Covenant of Economic, Social and Cultural Rights should operate directly and immediately within the domestic legal system of each State party; that the existence and further development of international procedures for the pursuit of individual claims was important but they were ultimately only supplementary to effective national remedies; that means of implementation of the Covenant must be adequate to ensure fulfilment of the obligations under the treaty; that account must be taken of the means which had proven most effective in the country concerned for ensuring the protection of other human rights; and that while the Covenant did not formally oblige a State party to incorporate its provisions into domestic law, such an approach was certainly desirable.
The comment also remarks that the right to an effective remedy need not be interpreted as always requiring a judicial remedy -- that administrative remedy would, in many cases, be adequate and those living within the jurisdiction of a State party had a legitimate expectation that all administrative authorities would take account of the requirements of the Covenant in their decision-making. However, there were some obligations, such as those concerning non-discrimination, which seemed to require some form of judicial remedy.
General Comment on the Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights
The comment notes that one means through which important steps could be taken to realize the Covenant was through the work of national institutions, and that in recent years there had been a proliferation of such institutions; that in many cases the institutions had been established by the Government, enjoyed an important degree of autonomy from the executive and the legislature, took full account of international human-rights standards which were applicable to the country concerned, and were mandated to perform various activities designed to promote and protect human rights. The document adds, however, that unfortunately the role given to such institutions had too often either not been sufficiently substantial or had been neglected or given a low priority.
The comment suggests several activities and responsibilities that could be assigned to such institutions, including promotion of educational and information programmes; scrutinizing of existing laws and administrative acts; provision of technical advice; identification of national "benchmarks" against which realization of Covenant obligations could be measured; and the performance of research and inquiries.
General Discussion on the Right to Education
Following a day of debate with academics, representatives of non-governmental organizations, and officials of relevant United Nations agencies, the Committee requested the Office of the High Commissioner for Human Rights to consider the possibility of organizing a workshop to identify key right-to-education benchmarks and indicators which might be used by the Committee and other treaty bodies.
International Covenant on Economic, Social and Cultural Rights
The General Assembly adopted and opened the Covenant for signature, ratification and accession in 1966. It entered into force on 3 January 1976.
Article 1 of the Covenant states that the right to self-determination is universal and calls upon States to promote the realization and respect of that right. Article 3 reaffirms the equal right of men and women to the enjoyment of all human rights and enjoins States to make that principle a reality. Article 5 provides safeguards against the destruction or undue limitation of any human right or fundamental freedom, and against misinterpretation of any provision of the Covenant as a means of justifying infringement of a right or freedom or its restriction to a greater extent than provided in the Covenant. It also prevents States from limiting rights already enjoyed within their territories on the ground that such rights are not recognized, or recognized to a lesser extent, in the Covenant.
Articles 6 to 15 recognize the right to work; to the enjoyment of just and favourable conditions of work; to form and join trade unions; to social security, including social insurance; to the widest possible protection and assistance for the family, mothers, children and younger persons; to an adequate standard of living; to the enjoyment of the highest attainable standard of physical and mental health; to an education and to take part in cultural life.
Committee on Economic, Social and Cultural Rights
The Economic and Social Council established the Committee in 1985. Elected by secret ballot from a list of persons nominated by States parties to the Covenant, its 18 members are human-rights experts serving in their personal capacity.
The Committee is composed of the following experts: Ade Adekuoye (Nigeria), Mahmoud Samir Ahmed (Egypt), Philip Alston (Australia), Ivan Antanovich (Belarus), Virginia Bonoan-Dandan (Philippines), Dumitru Ceausu (Romania), Oscar Ceville (Panama), Abdessatar Grissa (Tunisia), María de los Ángeles Jiménez Butragueño (Spain), Valeri I. Kouznetsov (Russian
Federation), Jaime Marchán Romero (Ecuador), Ariranga Govindasamy Pillay (Mauritius), Kenneth Osborne Rattray (Jamaica), Eibe Reidel (Germany), Walid M. Sa’di (Jordan), Philippe Texier (France), Nutan Thapalia (Nepal), and Javier Wimer Zambrano (Mexico).
States Parties to Covenant
The Covenant has been ratified or acceded to by 137 States: Afghanistan, Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Democratic Republic of the Congo, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Germany, Georgia, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Honduras, Hungary, Iceland, India, Iran, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Kuwait, Kyrgyzstan and Latvia.
Also: Lebanon, Lesotho, Libya, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Moldova, Monaco, Mongolia, Morocco, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Sierra Leone, Slovak Republic, Slovenia, Solomon Islands, Somalia, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syria, Former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, Uganda, Ukraine, United Kingdom, United Republic of Tanzania, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zambia and Zimbabwe.
HR/ESC/98/46
4 December 1998
Issues Recommendations in Response to Reports of Israel, Cyprus,
Switzerland, Germany, and Canada; Issues General
Comments on Domestic Application of Covenant,
National Human Rights Institutions
The Committee on Economic, Social and Cultural Rights ended its autumn session today by releasing conclusions and recommendations on situations in five countries.
Those nations -- Israel, Cyprus, Switzerland, Germany, and Canada -- presented reports to the panel over the preceding three weeks in keeping with their obligations as State's parties to the International Covenant on Economic, Social and Cultural Rights. The international treaty has 137 States parties and the Committee is charged with monitoring its implementation.
The panel's 18 experts contended, among other things, that Israel's "excessive emphasis" upon itself as a "Jewish State" had led to discrimination and accorded "second-class status" to non-Jewish citizens.
They cited serious concern at the incidence of domestic violence against women and children in Cyprus, and recommended that the Government "adopt appropriate policy to prevent and tackle the problem... in all its complexity".
They noted "with alarm" that "only 12 per cent of public servants within the science and technology sector of the former German Democratic Republic (GDR), including teachers, scientists and professionals, have been re-employed and that the rest remain without employment or adequate compensation or a satisfactory pension plan" and said they feared that "the majority of the affected people may have been dismissed from their positions for political rather than for professional or economic reasons". The Committee called for the Government of Germany to provide suitable compensation, employment, or pensions "as an act of national reconciliation".
The panel cited a "serious incidence of domestic violence against women" in Switzerland, based on the Government's own estimate of 110,000 cases per year, and lamented a lack of further statistics on such violence and on child abuse, including paedophilia. The Committee requested that the next Swiss report contain updated information on efforts to combat such abuses.
And it chided Canada, in a lengthy series of conclusions and recommendations, for not taking the Committee's major concerns and recommendations into account in 1993 "when it adopted policies at federal, provincial and territorial levels which exacerbated poverty and homelessness among vulnerable groups during a time of strong economic growth and increasing affluence".
Earlier in the week, the Committee issued general comments on domestic application of the Covenant and on "the role of national human rights institutions in the protection of economic, social and cultural rights".
The four-page document on domestic application notes, among other things, that in general, legally binding international human rights standards such as set out in the Covenant should operate directly and immediately within the domestic legal system of each State party; and that the right to an effective remedy need not be interpreted as always requiring a judicial remedy -- that administrative remedy would, in many cases, be adequate -- but that there were some obligations under the Covenant, such as those concerning non-discrimination, which seemed to require some form of judicial remedy.
The shorter general comment on the role of national human-rights institutions notes, among other things, that one means through which important steps could be taken to realize the provisions of the Covenant was through the work of national institutions, but that unfortunately the role given to such institutions had too often either not been sufficiently substantial or had been neglected or given a low priority.
The nineteenth session of the Committee also featured a day of general discussion on the right to education, with officials of other United Nations agencies concerned with the right and representatives of universities and governmental organizations debating how to pursue and measure progress towards achieving the right.
The Committee's next session will be held from 26 April to 14 May 1999. At that gathering the panel is expected to examine reports from Denmark, Bulgaria, Iceland, Ireland and Tunisia.
Conclusions and recommendations on country reports
The Committee noted among positive developments in Israel the enactment in 1995 of a National Health Insurance Law which provided for primary health care and ensured equal and adequate health treatment for each citizen and permanent resident; and the recent establishment of the Authority for Advancement of the Status of Women.
It cited as a factor or difficulty affecting implementation of the Convention "Israel's emphasis on its security concerns, including its policies over closure", which it said "has hampered the realization of economic, social and cultural rights within Israel and the occupied territories".
It expressed concern and offered recommendations on a number of topics, among them that "excessive emphasis upon the State as a 'Jewish State' encourages discrimination and accords a second-class status to non-Jewish citizens. The Committee notes with concern that the Government of Israel does not accord equal rights to its Arab citizens, even if they comprise over 19 per cent of the total population of Israel. This discriminatory attitude is apparent in the comparatively lower standard of living of the Israeli Arabs, as a result inter alia of lack of access to housing, water, electricity and health care, and their lower level of education".
It remarked "with grave concern" that discrimination was inherent in the Status Law of 1952 that authorized the World Zionist Organization/Jewish Agency and its subsidiaries including the Jewish National Fund, since the organizations "control most of the land in Israel" and "are chartered to benefit Jews exclusively. Despite the fact that the institutions are chartered under private law, the State of Israel nevertheless has a decisive influence on their policies and thus remains responsible for their activities". The Committee urged Israel to review the status of its relationship with these organizations.
The panel also cited concern over the situation of Jahalin Bedouin families forcibly evicted from ancestral lands to make way for expansion of Jewish settlements, and urged the Government to recognize existing Arab Bedouin villages, the land rights of inhabitants, and their right to basic services; it regretted that Israel had maintained "general closures" of the occupied territories since 1993, restricting and controlling movement of people and goods between Israel and the West Bank and Gaza Strip, between Jerusalem and the West Bank, and between the West Bank and the Gaza Strip, and noted with concern that these restrictions applied only to Palestinians. Referring to such closures, it called on the Government "to respect the right to self-determination... which provides that 'in no way may a people be deprived of its own means of subsistence".
The Committee urged Israel "to cease the practice of facilitating the building of illegal settlements and constructing bypass roads, expropriating land, water and resources, the demolition of houses and arbitrary evictions" and called on the Government "to immediately take steps to respect and implement the right to an adequate standard of living, including housing, of the Palestinian residents of East Jerusalem and the Palestinian Arabs in the mixed cities"; and noted with deep concern "that a significant proportion of Palestinian Arab citizens of Israel continue to live in unrecognized villages where they have no access to water, electricity, sanitation and roads".
It also requested additional information on the situation in the occupied territories "to ensure full compliance with reporting obligations"; recommended steps "to ensure the full legal application of the Covenant within the domestic legal order"; called for a reassessment of the country's Permanent Residency Law; and urged adoption of "effective measures to combat domestic violence against women and to promote equal treatment of women in the field of employment".
The Committee listed among positive aspects to the report of Cyprus the status accorded to international legal instruments, including the Covenant, in the domestic legal order and appreciated the fact that they were superior to national law in the legal hierarchy and could be invoked directly by individuals before the courts. It also commended the efforts of the Government in continuing to provide services, such as electricity supply and payment of pension benefits, to the population living in the part of the island that it did not control.
Cited as a factor impeding implementation of the Covenant was the continuing partition of Cyprus.
The Committee expressed concern and offered recommendations, among other things, over the lack of information available on the enjoyment of economic, social and cultural rights by the Cypriot population living in the area of the island not controlled by the Government. It noted serious concern at the incidence of domestic violence against women and children in Cypriot society and said the continuation of this situation "calls into question whether the State party has made its best efforts to comply with its obligations under articles 10 and 12 of the Covenant. In particular, the Government appears to have failed to adopt an adequate prevention policy and to enforce fully the existing legislative measures to combat violence in the family, and to assist victims of such violence". The panel recommended that the Government "adopt appropriate policy to prevent and tackle the problem of domestic violence against women and children in all its complexity and requests that the next report contain information on measures adopted to deal with it".
Alarm was expressed over "allegations of inhuman or degrading treatment of mentally ill patients in some health institutions" and the Committee, "while taking note of the delegation's statement that the situation as regards the treatment of mentally ill people 'has improved dramatically',... emphasizes the need to review thoroughly... health policy towards these patients".
The panel recommended that Cyprus's recently established National Institution for Human Rights be promptly promulgated into law and that its independence be guaranteed, and recommended that the Government "intensify its efforts to guarantee the equal enjoyment by men and women of their economic, social and cultural rights", among other things by taking steps to guarantee equal pay for equal work, by abrogating discriminatory provisions of Social Security legislation, and by enacting a bill to abolish discrimination in acquisition and transmission of nationality.
It called for steps to improve protection of problems faced by domestic workers and urged the Government to monitor more closely the problem of forced prostitution in Cyprus "with a view to rescuing those victims who are trapped or forced into it and to protect their rights under the Covenant".
And it recommended that a number of pending bills and proposed regulations in Cyprus related to economic, social and cultural rights "be speedily submitted for Parliamentary or Cabinet approval".
Among positive aspects of the report of Germany, the Committee cited "a visible shift in policy" under the newly elected Government which "could lead to the progressive realization of economic, social and cultural rights to a fuller extent and could be particularly beneficial to the new Lander and reduce the still existing economic gap between the old and new Lander".
A factor impeding implementation of the Covenant was that "the full integration of East and West Germany remains partly unfulfilled despite determined efforts to realize this objective", the panel noted.
Among matters of concern mentioned by the Committee and recommendations offered by the panel were that the Covenant did not have sufficient status within the German legal system; that unemployment was still high in Germany, and twice as high in the East as in the West, and most prevalent among women and foreigners; it requested more precise statistics and data on unemployment in the country's next report and urged the Government to implement its various educational programmes for youth and other vulnerable groups, especially those intended to create employment and those aimed at improving employment levels in the East.
The Committee noted "with alarm" that "only 12 per cent of public servants within the science and technology sector of the former GDR, including teachers, scientists and professionals, have been re-employed and that the rest remain without employment or adequate compensation or a satisfactory pension plan. The Committee fears that the majority of the affected people may have been dismissed from their positions for political rather than for professional or economic reasons in violation of Article 2 (2) of the Covenant... As an act of national reconciliation, the Committee calls on the State Party to ensure that compensation will be provided to civil servants, professional and scientists associated with the old regime in the former GDR and to ensure that such compensation is both adequate and fair with a view to absorbing as many of them as possible within the mainstream of Germany's life and/or offer them fair compensation or appropriate pension plans".
The panel requested measures to redress the situations of different categories of asylum-seekers in Germany; recommended that civil servants not involved in essential services be accorded the right to strike; called for measures against trafficking in women or their exploitation in other ways; called for measures to regulate child labour; sought increased efforts to prevent child abuse, child exploitation and child pornography; recommended that the Government avoid increases in university tuition; and urged it "to accelerate the process of integration between East and West Germany on all fronts... to reduce the gap that may still exist between them".
Cited among positive aspects of the report of Switzerland were that the Covenant had begun to be accepted as an integral part of the Swiss legal system, and that the Swiss courts, notably the Federal Tribunal, had on some occasions referred to the provisions of the Covenant. The Committee also expressed appreciation for the range and quality of services provided to the population, among them social benefits for the elderly and the disabled.
Concern was expressed, among other things, about the federal structure of the Swiss Government, which required that certain rights be provided for by the Cantons; the Committee said the Federal Government nevertheless had responsibility for ensuring implementation of the Covenant. The panel recommended harmonization of Cantonal laws "to ensure due respect for the provisions of the Covenant". The Committee furthermore said it disagreed "with the position of the State party that provisions of the Covenant constitute principles and programmatic objectives rather than legal obligations, and that consequently the provisions of the Covenant cannot be given legislative effect". It recommended that the Government "take appropriate steps to give full legal effect to the Covenant".
Concern was expressed that certain Covenant rights were not Constitutionally recognized, such as the rights to work, education, and culture; that despite the country's high level of development, unacceptable levels of poverty existed among certain segments of the population, particularly women; and that a relatively high proportion of women worked in lower-paid jobs and among part-time and "on-call workers". It also was noted that "despite the existence of legislation for protection against discrimination, a de facto discrimination against women and ethnic minorities continues to exist". It recommended that all possible measures be taken to make it easier for women who wish to work outside the home to be able to do so, and to guarantee equal access to employment and equal wages for equal work for women and men.
Concern was announced over "the serious incidence of domestic violence against women which the State party has estimated at 110,000 cases per year", and a lack of further statistics on such violence, and on child abuse, including paedophilia, was regretted by the Committee. The panel requested that the next Swiss report contain updated information on efforts to combat domestic violence and paedophilia.
Among other recommendations were that draft legislation concerning the right to strike of civil servants be adopted as soon as possible; that International Labour Office (ILO) Conventions 98 and 174 be ratified quickly; and that the Government review its system of health care "to prevent the high costs... from having a negative effect on the standard of living of families".
The Committee noted several positive developments in the report of Canada, including that for the last five years the country had been ranked at the top of the United Nations Development Programme's Human Development Index; that the Supreme Court of Canada had held that section 15 of the Canadian Charter of Rights and Freedoms imposed positive obligations on governments to allocate resources and implement programmes to address social and economic disadvantage; and that in recognition of the serious issues affecting Aboriginal peoples in Canada, the Government had appointed a Royal Commission on Aboriginal Peoples (RCAP) which released a wide-ranging report in 1996 addressing many of the rights enshrined in the Covenant.
Listed among factors and difficulties impeding implementation of the Covenant were that since 1994, Canada had slashed social expenditures in addressing budget deficits and had not paid sufficient attention to the adverse consequences on economic, social and cultural rights, especially for vulnerable groups. The Committee also regretted that unless a right under the Covenant was implicitly or explicitly protected by the Charter, through federal-provincial agreements, or incorporated directly into provincial law, there was no legal redress available to either an aggrieved individual or the Federal Government where provinces had failed to implement the Covenant.
Among causes for concern mentioned by the Committee were that it had received information about a number of cases in which claims were brought by people living in poverty -- usually women with children -- against Government policies which denied the claimants and their children adequate food, clothing and housing, and that Provincial Governments had urged upon their courts in these cases an interpretation of the Canadian Charter of Rights and Freedoms which would deny any protection of Covenant rights. The Committee further said it was deeply concerned to receive information that provincial courts in Canada had routinely opted for an interpretation which excluded protection of the right to an adequate standard of living and other Covenant rights despite the fact that the Supreme Court had stated that the Charter can be interpreted so as to protect these rights. It recommended that Governments at all levels "adopt positions in litigation which are consistent with their obligation to uphold the rights recognized in the Covenant".
A "gross disparity" was noted between the economic, social and cultural situation of Aboriginal peoples and that of most Canadians, and the Committee said there had been "little or no progress in the alleviation of social and economic deprivation among Aboriginal people" -- that there was inadequate housing, endemic mass unemployment, a high rate of suicide, and a lack of such standard amenities as safe drinking water. It endorsed the recommendations of the RCAP that policies which violated Aboriginal treaty obligations and the "extinguishment, conversion or giving up of Aboriginal rights and title" should on no account be pursued by the Government of Canada; and said it was greatly concerned that the recommendations of the RCAP had not yet been implemented: it recommended urgent implementation.
The replacement of the former Canada Assistance Plan (CAP) by the Canada Health and Social Transfer (CHST) entailed a range of adverse consequences for the enjoyment of Covenant rights, the Committee said. The CAP set national standards for social welfare, required that work by welfare recipients be freely chosen, guaranteed the right to an adequate standard of living, and facilitated court challenges to federally funded provincial social-assistance programmes which did not meet the standards. In contrast, the Committee said, the CHST had eliminated each of these features and had significantly reduced the amount of social assistance.
And it reported concern that the Government had not taken the Committee's major concerns and recommendations into account in 1993 "when it adopted policies at federal, provincial and territorial levels which exacerbated poverty and homelessness among vulnerable groups during a time of strong economic growth and increasing affluence".
The Committee recommended, among other things, that Canada consider reestablishing a national welfare programme with designated cash transfers for social assistance and social services which included universal entitlements and national standards, specifying a legally enforceable right to adequate assistance for all persons in need, a right to freely chosen work, a right to appeal and a right to move freely from one job to another.
It urged establishment of an official poverty line and recommended that federal and provincial agreements ensure that services such as mental health care, home care, child care, and attendant care, shelters for battered women, and legal aid for non-criminal matters were available at levels that ensured an adequate standard of living.
It urged that federal, provincial and territorial Governments address homelessness and inadequate housing as a "national emergency" and that they implement a national strategy for reduction of homelessness and poverty.
The Committee also urged the Federal Government to take steps to ensure that provinces and territories were aware of their legal obligations to respect the Covenant and that Covenant rights were enforceable within provinces and territories; encouraged measures to ensure women's economic, social and cultural rights; recommended that a greater proportion of budgets at all levels be allocated specifically to measures to address women's poverty and the poverty of their children, affordable day care, and adequate support for shelters for battered women; and urged review of "workfare" legislation to ensure that none of the provisions violated the standards of the Covenant.
General Comment on Domestic Application of Covenant
The four-page document on domestic application notes, among other things, that in general, legally binding international human rights standards such as those set out in the International Covenant of Economic, Social and Cultural Rights should operate directly and immediately within the domestic legal system of each State party; that the existence and further development of international procedures for the pursuit of individual claims was important but they were ultimately only supplementary to effective national remedies; that means of implementation of the Covenant must be adequate to ensure fulfilment of the obligations under the treaty; that account must be taken of the means which had proven most effective in the country concerned for ensuring the protection of other human rights; and that while the Covenant did not formally oblige a State party to incorporate its provisions into domestic law, such an approach was certainly desirable.
The comment also remarks that the right to an effective remedy need not be interpreted as always requiring a judicial remedy -- that administrative remedy would, in many cases, be adequate and those living within the jurisdiction of a State party had a legitimate expectation that all administrative authorities would take account of the requirements of the Covenant in their decision-making. However, there were some obligations, such as those concerning non-discrimination, which seemed to require some form of judicial remedy.
General Comment on the Role of National Human Rights Institutions in the Protection of Economic, Social and Cultural Rights
The comment notes that one means through which important steps could be taken to realize the Covenant was through the work of national institutions, and that in recent years there had been a proliferation of such institutions; that in many cases the institutions had been established by the Government, enjoyed an important degree of autonomy from the executive and the legislature, took full account of international human-rights standards which were applicable to the country concerned, and were mandated to perform various activities designed to promote and protect human rights. The document adds, however, that unfortunately the role given to such institutions had too often either not been sufficiently substantial or had been neglected or given a low priority.
The comment suggests several activities and responsibilities that could be assigned to such institutions, including promotion of educational and information programmes; scrutinizing of existing laws and administrative acts; provision of technical advice; identification of national "benchmarks" against which realization of Covenant obligations could be measured; and the performance of research and inquiries.
General Discussion on the Right to Education
Following a day of debate with academics, representatives of non-governmental organizations, and officials of relevant United Nations agencies, the Committee requested the Office of the High Commissioner for Human Rights to consider the possibility of organizing a workshop to identify key right-to-education benchmarks and indicators which might be used by the Committee and other treaty bodies.
International Covenant on Economic, Social and Cultural Rights
The General Assembly adopted and opened the Covenant for signature, ratification and accession in 1966. It entered into force on 3 January 1976.
Article 1 of the Covenant states that the right to self-determination is universal and calls upon States to promote the realization and respect of that right. Article 3 reaffirms the equal right of men and women to the enjoyment of all human rights and enjoins States to make that principle a reality. Article 5 provides safeguards against the destruction or undue limitation of any human right or fundamental freedom, and against misinterpretation of any provision of the Covenant as a means of justifying infringement of a right or freedom or its restriction to a greater extent than provided in the Covenant. It also prevents States from limiting rights already enjoyed within their territories on the ground that such rights are not recognized, or recognized to a lesser extent, in the Covenant.
Articles 6 to 15 recognize the right to work; to the enjoyment of just and favourable conditions of work; to form and join trade unions; to social security, including social insurance; to the widest possible protection and assistance for the family, mothers, children and younger persons; to an adequate standard of living; to the enjoyment of the highest attainable standard of physical and mental health; to an education and to take part in cultural life.
Committee on Economic, Social and Cultural Rights
The Economic and Social Council established the Committee in 1985. Elected by secret ballot from a list of persons nominated by States parties to the Covenant, its 18 members are human-rights experts serving in their personal capacity.
The Committee is composed of the following experts: Ade Adekuoye (Nigeria), Mahmoud Samir Ahmed (Egypt), Philip Alston (Australia), Ivan Antanovich (Belarus), Virginia Bonoan-Dandan (Philippines), Dumitru Ceausu (Romania), Oscar Ceville (Panama), Abdessatar Grissa (Tunisia), María de los Ángeles Jiménez Butragueño (Spain), Valeri I. Kouznetsov (Russian
Federation), Jaime Marchán Romero (Ecuador), Ariranga Govindasamy Pillay (Mauritius), Kenneth Osborne Rattray (Jamaica), Eibe Reidel (Germany), Walid M. Sa’di (Jordan), Philippe Texier (France), Nutan Thapalia (Nepal), and Javier Wimer Zambrano (Mexico).
States Parties to Covenant
The Covenant has been ratified or acceded to by 137 States: Afghanistan, Albania, Algeria, Angola, Argentina, Armenia, Australia, Austria, Azerbaijan, Barbados, Belarus, Belgium, Benin, Bolivia, Bosnia and Herzegovina, Brazil, Bulgaria, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Côte d'Ivoire, Croatia, Cyprus, Czech Republic, Democratic People's Republic of Korea, Democratic Republic of the Congo, Denmark, Dominica, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Estonia, Ethiopia, Finland, France, Gabon, Gambia, Germany, Georgia, Greece, Grenada, Guatemala, Guinea, Guinea-Bissau, Guyana, Honduras, Hungary, Iceland, India, Iran, Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kenya, Kuwait, Kyrgyzstan and Latvia.
Also: Lebanon, Lesotho, Libya, Lithuania, Luxembourg, Madagascar, Malawi, Mali, Malta, Mauritius, Mexico, Moldova, Monaco, Mongolia, Morocco, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, Republic of Korea, Romania, Russian Federation, Rwanda, Saint Vincent and the Grenadines, San Marino, Senegal, Seychelles, Sierra Leone, Slovak Republic, Slovenia, Solomon Islands, Somalia, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Syria, Former Yugoslav Republic of Macedonia, Togo, Trinidad and Tobago, Tunisia, Turkmenistan, Uganda, Ukraine, United Kingdom, United Republic of Tanzania, Uruguay, Uzbekistan, Venezuela, Viet Nam, Yemen, Yugoslavia, Zambia and Zimbabwe.