COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS CONCLUDES FORTY-SECOND SESSION

The Committee on Economic, Social and Cultural Rights concluded its forty-second session today, after issuing its concluding observations and recommendations on the reports of Australia, Brazil, Cyprus, Cambodia and the United Kingdom.

The countries considered by the Committee are among the 160 States parties to the International Covenant on Economic, Social and Cultural Rights which are required to submit periodic reports to the Committee on efforts to implement the provisions of the treaty, which entered into force in 1976.

In conclusions and observations on the fourth periodic report of Australia, the Committee welcomed the parliamentary apology to the indigenous peoples, victims of the “Stolen Generation” policies, issued on 13 February 2008. Among concerns with regard to indigenous peoples were continuing high levels of ill health, disparities with regard to employment, violence against women, homelessness and access to the educational system. The Committee recommended that Australia take additional measures to ensure universal coverage of the social security system so as to include asylum-seekers, newly arrived immigrants and indigenous peoples.

On the second periodic report of Brazil, the Committee welcomed the adoption of the “Maria da Penha Law”, in 2006, which provided for the repression of domestic and family violence against women, including assistance to victims. Among deep concerns were the prevalent culture of violence and impunity and reports that human rights defenders were threatened, harassed and subjected to violence, and continued deforestation. The Committee urged Brazil to strengthen remedial action to address the problem of illiteracy, particularly in rural areas and in the Afro Brazilian community.

With regard to the combined fourth and fifth periodic report of Cyprus, the Committee welcomed the 2004 comprehensive anti-discrimination framework. It was deeply concerned that de facto discrimination persisted against third country migrants, Turkish Cypriots and members of national minorities, especially Roma and Pontian Greeks. The Committee urged the Government to intensify awareness-raising campaigns about the anti-discrimination legal framework and ensure that free legal aid was effectively provided to victims in order to pursue their claims before all appropriate domestic courts.

After reviewing the initial report of Cambodia, the Committee noted with satisfaction the Declaration of Human Rights contained in Chapter III of the State party’s Constitution covering many economic, social and cultural rights. The Committee noted with concern, the high unemployment and underemployment in the State party, particularly among the growing numbers of young people in need of job opportunities and appropriate skills. It strongly urged the State party to adopt its draft Anti-Corruption Law without delay, and to intensify its efforts to modernize and improve the work of the judiciary, including through a revamped Plan for Judicial Reform.

Following its consideration of the combined fourth and fifth periodic report of the United Kingdom, the Committee welcomed measures adopted by the State party which contributed to the implementation of the Covenant rights, which inter alia had led to a decreased number of children living in poverty, improved conditions of work, and enhanced overall levels of health. The Committee was concerned about the discriminatory impact of some counter-terrorism measures on the enjoyment of economic, social and cultural rights of certain groups in the State party, in particular ethnic and religious minorities. It recommended that the State party take immediate and appropriate measures to reduce unemployment among ethnic minorities and to provide them with better employment opportunities.

Also at this session, the Committee adopted a General Comment (No. 20) on Non-Discrimination in Economic, Social and Cultural Rights, which aims to clarify the provisions of Article 2 (2) of the Covenant, including the scope of State obligations, the prohibited grounds of discrimination, and national implementation. The Comment discusses direct and indirect discrimination; provides guidance with regard to expressly prohibited grounds of discrimination; expands on the concept of “other grounds” and provides examples of such cases; and spells out State obligations with regard to a number of areas, including elimination of systemic discrimination and monitoring, indicators and benchmarks.

Over the past three weeks, the Committee also discussed relations with United Nations organs and other treaty bodies, and heard information from non-governmental organizations with respect to the reports that it reviewed during this session.

It also reviewed development of a draft general comment on the right to take part in cultural life under article 15 of the Covenant, and considered its methods of work.

The next session of the Committee will be held from 2 to 20 November, at which time it will take up reports from the Republic of Korea, Poland, Madagascar, Chad and the Democratic Republic of Congo.

Concluding Observations

Australia

In conclusions and observations on the fourth periodic report of Australia, the Committee welcomed the parliamentary apology to the indigenous peoples, victims of the “Stolen Generation” policies, issued on 13 February 2008, and acknowledged Australia’s commitment close the gap in the enjoyment of the Covenant rights between indigenous and non-indigenous Australians. It also noted with appreciation the Fair Work Act 2009, which introduced new employment standards, and improved the protection of the right to work, in line with the Committee’s recommendations adopted in 2000. Also welcomed was Australia’s ratification of the United Nations Convention on Persons with Disabilities.

The Committee noted with concern the lack of a legal framework for the protection of economic, social and cultural rights at the Federal level, as well as of an effective mechanism to ensure coherence and compliance of all jurisdictions with Australia’s obligations under the Covenant. It remained concerned that some of the Northern Territory Intervention measures adopted by Australia in response to the 2007 “Little Children are Sacred” report had a negative impact on the realisation of the rights of indigenous peoples and regretted that the Northern Territory Intervention measures had been adopted without sufficient and adequate consultation with the indigenous peoples concerned. Also noted with concern was that a wage gap still persisted between men and women in the workplace, particularly in managerial positions, and that there was a low percentage of women in high-ranking positions in political and public life. Other concerns included the high unemployment rates among indigenous people, asylum-seekers, migrants and people with disabilities, and that domestic violence, including violence against women, persisted, affecting in particular indigenous women. The Committee had a number of concerns with regard to indigenous peoples, including continuing high levels of ill health, disparities with regard to employment, violence against women, homelessness, the impact of climate change on the right to an adequate standard of living and with regard to access to the educational system.

Among its recommendations, the Committee said that the Migration Act 1958 and the Disability Discrimination Act 1992 should be amended to ensure that the rights to equality and non-discrimination applied to all aspects of migration law, policy and practice. As part of continuing efforts to improve workers rights, Australia should remove obstacles and restrictions to the right to strike, which were inconsistent with the Covenant and ILO Convention No. 87. In particular, Australia was recommended to abrogate the provisions of the Building and Construction Industry Improvement Act 2005 which imposed penalties, including six months of incarceration, for industrial action, and was asked to consider amending the Fair Work Act 2009. Australia should also take additional measures to ensure universal coverage of the social security system so as to include asylum-seekers, newly arrived immigrants and indigenous peoples. The Committee also recommended that social security benefits, including unemployment benefits, old age pensions and youth allowance enabled recipients to enjoy an adequate standard of living. It strongly recommended that Australia review conditionalities such as “mutual obligations” in the welfare to work programme and the “quarantining” of welfare payments under the Northern Territory Intervention that might have a punitive effect on disadvantaged and marginalized families, women and children.

Brazil

Among positive aspects in the second periodic report of Brazil, the Committee welcomed the adoption of the “Maria da Penha Law”, in 2006, which provided for the repression of domestic and family violence against women, including assistance to victims; the removal from the Penal Code of the discriminatory concept of an “honest woman”, previously applied in certain cases of sexual violence against women; the introduction, in 2003, of the National Qualification Plan to coordinate public policies on employment for disadvantaged groups, including indigenous people, Afro-Brazilians and women; the National School Food Programme established to provide meals free of charge for 37 million children in public schools; and the Brazil Free of Homophobia Programme, which aimed to protect and promote the rights of homosexual persons, including their rights to personal security, education, health and work.

The Committee was deeply concerned about the culture of violence and impunity prevalent in Brazil and in particular about reports that human rights defenders were threatened, harassed and subjected to violence by private militias commissioned by private and public actors. It was also concerned at the slow progress in the land reform process, as well as the enactment of legislation to facilitate the demarcation of land belonging to the indigenous peoples. The Committee also remained concerned at the significant differences between the black and white population groups, including with regard to poverty levels, illiteracy, and inequalities in access to employment. A further concern was that negative gender roles persisted, including the representation of women as sex objects, and that those might render women more vulnerable to domestic and other forms of violence. The Committee noted with concern as well the large numbers of Brazilians employed in conditions similar to slavery or subjected to forced labour and other exploitative labour conditions, particularly in forest clearing, logging, and the harvesting of sugarcane, and that the phenomenon disproportionately affected young men from low income families. Of deep concern was the continued deforestation in Brazil, which impacted negatively on the enjoyment of economic, social and cultural rights.

The Committee urged Brazil to strengthen remedial action to address the problem of illiteracy, particularly in rural areas and in the Afro Brazilian community; that it continue to strengthen its legal and institutional mechanisms aimed at combating discrimination in the field of employment and facilitating equal access to employment for women and for persons belonging to racial, ethnic and national minorities; and recommended Brazil take adequate measures to ensure the protection of trade union members and leaders from all forms of harassment and intimidation and thoroughly investigate reports alleging any form of violence. In addition, the Committee recommended that Brazil strengthen measures to provide social security coverage for the economically disadvantaged populations, that it be made available to persons who were unable to contribute towards the system, and that Brazil intensify efforts to regularise the situation of workers in the informal economy to enable them to benefit from a basic social protection package. Brazil should also take effective measures to address the root causes of the street children phenomenon and take effective and appropriate measures to ensure that such children had access to education, shelter and healthcare.

Cyprus

With regard to the combined fourth and fifth periodic report of Cyprus, the Committee welcomed important legislation enacted, including the 2004 comprehensive anti-discrimination framework; the 2002 Law on Equal Pay between Men and Women for the Same Work or for Work of Equal Value, the Law on the Equal Treatment of Men and Women in Employment and Vocational Training and the amendment to the Maternity Law; and the 2000 Violence in the Family Law, as well as the establishment of an Advisory Committee on Family Violence. It also welcomed the expansion of the employment sectors available to asylum-seekers as of October 2008, which enhanced their opportunities to provide for a decent living for themselves and their families.

The Committee was deeply concerned that de facto discrimination persisted against third country migrants, Turkish Cypriots and members of national minorities, especially Roma and Pontian Greeks. In that connection, it was concerned about the lack of anti-discrimination case law, and noted with concern that Turkish Cypriots continued to face administrative and linguistic obstacles to obtain official documents. The Committee remained deeply concerned at the extent of trafficking in women for the purposes of sexual exploitation in Cyprus. It also noted with regret that, in spite of the 2002 law amendment, children of women with displaced person status were still not entitled to a Refugee Identity Card and were only entitled to a Certificate by Descent which did not enable them to access any benefits. In general, the Committee was concerned at the persisting de facto discrimination against women in Cyprus, particularly with regard to working and promotion opportunities in employment and a gender remuneration gap which remained the widest of the European Union.

The Committee had a number of concerns about asylum-seekers and migrants. It was deeply concerned about the number of cases of asylum-seekers with specific needs who were denied access to necessary specialized medical care available to nationals and European Union citizens. It was also concerned that Cyprus had not adopted any specific policy to address the sub-standard housing of third country migrants and asylum-seekers; about the lengthy detention of irregular migrants and rejected asylum-seekers in inadequate conditions; and was deeply concerned about the circular issued by the 2004 Ministry of Education which requested all schools to report to immigration authorities the contact details of the parents of foreign children who enrolled for school. In recommendations, the Committee urged the Government to intensify awareness-raising campaigns about the anti-discrimination legal framework and ensure that free legal aid was effectively provided to victims in order to pursue their claims before all appropriate domestic courts. It also recommended that the Government take all appropriate measures to overcome administrative and linguistic obstacles faced by Turkish Cypriots to obtain official documents. The Committee called upon Cyprus to ensure a full implementation of the measures outlined in the National Action Plan on Gender Equality 2007-2013, in particular those aimed at increasing the level of participation of women in the labour market and to ensure equal treatment, including equal remuneration for work of equal value. The Committee also called upon Cyprus to provide asylum-seekers and third country migrants with free legal aid on their economic, social and cultural rights. It urged Cyprus to make sure that asylum-seekers, especially the homeless, no longer had conditions imposed on them not prescribed by law which resulted in the denial of the rights to social security they were entitled to. Moreover, the Government was urged to ensure that asylum-seekers with special medical needs had access to specialized medical care, targeted welfare benefits and facilities for the early identification and rehabilitation of the victims of torture.

Cambodia

With regard to the initial report of Cambodia, the Committee noted with satisfaction the Declaration of Human Rights contained in Chapter III of the State party’s Constitution covering many economic, social and cultural rights. The Committee welcomed the Rectangular Strategy of the Royal Government of Cambodia, and its programmes for strengthening good governance and the advancement of human rights, among others. The Committee welcomed the launching by the State party of a project for carbon credits for community forestry. It noted with appreciation the legislative and other measures adopted by the State party to promote the enjoyment of economic, social and cultural rights. The Committee noted with satisfaction the adoption of measures aimed at promoting the enjoyment by women of economic, social and cultural rights. It also welcomed the ratification by the State party of the Convention for the Protection of All Persons from Enforced Disappearances, in 2006; the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, in 2002; and the Optional Protocols to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and on the involvement of children in armed conflict, in 2000.

The Committee noted with concern the reports on the lack of independence and effectiveness of the judicial system which hindered the full enjoyment of human rights including economic, social and cultural rights; and that the 2001 Land Law that provided for the titling of indigenous communities' communal lands had not been implemented effectively and that so far, no indigenous community had received any land title. The Committee also noted with concern, the adverse effects of the exploitation of natural resources, in particular mining operations and oil exploration that were being carried out in indigenous territories, on the right of indigenous peoples to their ancestral domains, lands and natural resources. The Committee noted with concern, the high unemployment and underemployment in the State party, particularly among the growing numbers of young people in need of job opportunities and appropriate skills. It was concerned about the persistent inequality in wages for work of equal value for men and women in practice. The Committee was gravely concerned over reports that since the year 2000, over 100,000 people were evicted in Phnom Penh alone. It expressed its deep concern about the culture of violence and impunity prevalent in the State party and the repression of human rights activists defending economic, social and cultural rights, particularly those defending housing and land rights.

The Committee strongly urged the State party to adopt its draft Anti-Corruption Law without delay, and to intensify its efforts to modernize and improve the work of the judiciary, including through a revamped Plan for Judicial Reform. The Committee urged the State party to review its policy regarding the conversion of protected zones into economic concessions by conducting environmental and social impact assessments including consultations with relevant stakeholders and communities with due regard to their right to participate in informed decisions that affect their lives. The Committee urges the State party to implement the 2001 Land Law without further delay and to ensure that its policies on registration of communal lands did not contravene the spirit of this law. The Committee recommended that the State party review its employment policies and develop a strategic employment plan to promote youth employment. The Committee strongly recommended to the State party that the principle of equal pay for work of equal value for men and women should be fully and clearly reflected in the legislation, and that the legislation should be strictly enforced. The Committee urged the State party to implement a moratorium on all evictions until the proper legal framework was in place and the process of land titling was completed, in order to ensure the protection of human rights of all Cambodians, including indigenous peoples. The Committee urged the State party to take all necessary measures to combat the culture of violence and impunity prevalent in the State party, and for the protection of human rights defenders.

United Kingdom

Following its consideration of the combined fourth and fifth periodic report of the United Kingdom, the Committee welcomed the establishment of national human rights institutions in the State party, namely the Equality and Human Rights Commission, the Northern Ireland Human Rights Commission and the Scottish Human Rights Commission; the launching of the Green Paper ‘Rights and Responsibilities: developing our constitutional framework’ and the ensuing public consultation on a ‘Bill of Rights and Responsibilities’; and the measures adopted by the State party which contributed to the implementation of the Covenant rights, which inter alia had led to a decreased number of children living in poverty, improved conditions of work, and enhanced overall levels of health. The Committee acknowledged the State party’s commitment to achieve by 2013 the granting of 0.7 per cent of its Gross Domestic Income as official development assistance in accordance with internationally agreed policies.

The Committee expressed concern about the de facto discrimination experienced by some of the most disadvantaged and marginalized individuals and groups, such as ethnic minorities and persons with disabilities, in the enjoyment of their economic, social and cultural rights, especially in the fields of housing, employment, and education, despite the measures adopted by the State party to enhance its legal and institutional mechanisms aimed at combating discrimination. It was concerned about the discriminatory impact of some counter-terrorism measures on the enjoyment of economic, social and cultural rights of certain groups in the State party, in particular ethnic and religious minorities. It was also concerned that, despite the efforts undertaken by the State party to achieve gender equality in the work place, inequalities between men and women persisted. Concern was expressed about the substantial number of persons unemployed, in particular the most disadvantaged and marginalized individuals and groups; and that the unemployment rate of some groups, especially ethnic minorities, continued to be higher than that of other workers, and that they continued to be employed in low-paid jobs.

The Committee recommended that the State party take remedial steps to enforce existing legal prohibitions of discrimination and to enact, without delay, a comprehensive anti-discrimination law, guaranteeing protection against discrimination in the enjoyment of economic, social and cultural rights, as stipulated in article 2(2) of the Covenant. The Committee recommended that the State party ensure that its counter-terrorism measures did not have a discriminatory effect on the enjoyment of the Covenant rights on certain groups in the State party, in particular ethnic and religious minorities. It also recommended that the State party continue intensifying its efforts to enhance equality between men and women in the work place, particularly with regard to equal pay for work of equal value in all sectors of employment. The Committee recommended that the State party strengthen its measures to reduce the substantial number of unemployed persons and to counteract the impact of the economic downturn on employment in order to realize the full realization of the right to work, in particular with regard to the most disadvantaged and marginalized individuals and groups. The Committee recommended that the State party take immediate and appropriate measures to reduce unemployment among ethnic minorities and to provide them with better employment opportunities.

General Comment No. 20

A General Comment on Non-Discrimination in Economic, Social and Cultural Rights aims to clarify the Committee’s understanding of the provisions of Article 2 (2) (guarantee of non-discrimination in exercise of Covenant rights), including the scope of State obligations, the prohibited grounds of discrimination, and national implementation. In order for States parties to “guarantee” that the Covenant rights will be exercised without discrimination of any kind, discrimination must be eliminated both formally and substantively. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes that cause or perpetuate substantive or de facto discrimination. For example, ensuring that all individuals have equal access to adequate housing, water and sanitation will help to overcome discrimination against women and girl children and persons living in informal settlements and rural areas. Both direct and indirect forms of differential treatment can amount to discrimination under Article 2 (2) of the Covenant. For instance, requiring a birth registration certificate for school enrolment may discriminate (indirectly) against ethnic minorities or non-nationals who do not possess, or have been denied, such certificates. Also discussed are the issues of discrimination in the private sphere; systematic discrimination; the permissible scope of preferential treatment.

A section on prohibited grounds of discrimination discusses individually the express grounds for discrimination set out in Article 2 (2) – race, colour, sex, language, religion, political or other opinion, national or social origin, property and birth race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. With regard to birth, it says distinctions must not be made against those who are born out of wedlock, born of stateless parents or are adopted or constitute the families of such persons. The prohibited ground of birth also includes descent, especially on the basis of caste and analogous systems of inherited status. However, the nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of “other status” is thus needed to capture other forms of differential treatment that cannot be reasonably and objectively justified. Under this category, disability, age, nationality, marital and family status, sexual orientation and gender identity, health status, place of residence and economic and social situation are discussed. As an example, with regard to health, restrictions are discriminatory when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum.

In addition to refraining from discriminatory actions, States parties should take concrete, deliberate and targeted measures to ensure that discrimination in the exercise of Covenant rights is eliminated. Individuals and groups of individuals, who may be distinguished by one or more of the prohibited grounds, should be ensured the right to participate in decision-making processes over the selection of such measures. States parties should regularly assess whether the measures chosen are effective in practice. This section spells out obligations with regard to legislation; policies, plans and strategies; elimination of systemic discrimination; remedies and accountability; and monitoring, indicators and benchmarks. It notes that eliminating systemic discrimination, for example, will frequently require devoting greater resources to traditionally neglected groups. Given the persistent hostility towards some groups, particular attention will need to be given to ensuring that laws and policies are implemented by officials and others in practice.


Committee on Economic, Social and Cultural Rights

The Committee is composed of the following Experts: Mohamed Ezzeldin Abdel-Moneim (Egypt), Clement Atangana (Cameroon), Rocio Barahona Riera (Costa Rica), Virginia Bonoan-Dandan (Philippines), Maria Virginia Bras Gomes (Portugal), Chandrashekhar Dasgupta (India), Azzouz Kerdoun (Algeria), Yuri Kolovsov (Russian Federation), Jaime Marchan Romero (Ecuador), Sergei Martynov (Belarus), Ariranga Govindasamy Pillay (Mauritius), Eibe Riedel (Germany), Nikolaas Jan Schrijver (Netherlands), Walid Sa’di (Jordan), Philippe Texier (France), Alvaro Tirado Mejia (Colombia), and Zhan Daode (China).

Mr. Marchan Romero is the Chairperson; Ms. Bras Gomes, Mr. Abdel-Moneim and Mr. Sadi are Vice Chairpersons; and Mr. Kedzia is the Rapporteur.


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