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

The Committee on Economic, Social and Cultural Rights concluded its forty-third session on 20 November after adopting its concluding observations and recommendations on the reports of the Democratic Republic of the Congo, Chad, Poland, Madagascar and the Republic of Korea. It also adopted its annual report and a General Comment on the right of every person to participate in cultural life. The texts which the Committee adopted were released today.

Marchan Romero, Chairman of the Committee, in concluding remarks highlighted the importance of the recently adopted Optional Protocol to the Convention and said this instrument would put an end to the debate on the equal status of human rights. The new General Comment on the right to participate in cultural life was intended to assist States parties in understanding the scope of the provisions under the Covenant and their basic obligations. The Committee further held a briefing session on the right to sexual and reproductive health. This was part of an effort to generate a process, which would lead to the drafting of a future General Comment on this subject.

In its observations and recommendations on the combined second to fourth periodic report of the Democratic Republic of the Congo, the Committee welcomed the promulgation of a new Constitution on 18 February 2006. It acknowledged the persistent instability and recurrent armed conflicts in some of the State party’s provinces which pose great challenges to the State‘s ability to fulfil its obligations under the Covenant. It reiterated the primary responsibility of the State party for ensuring security in its territory and protecting its civilians.

With respect to the combined initial to third periodic report of Chad, the Committee regretted that, in the absence of a delegation from the State party, it had not been able to follow its usual practice to examine State reports. It took note with satisfaction of the efforts undertaken by the State party to fight against poverty, in particular the project “Reducing Poverty and Action in Favour of Women”. It acknowledged that the State party was going through, since more than thirty years, institutional and political crises that were characterized by armed rebellions and inter-ethnic conflicts and was especially concerned about the impact of the food crisis in Darfur and the massive displacements of population that had taken place in the eastern part of Chad.

Regarding the fifth periodic report of Poland, the Committee welcomed the implementation of the National Programme for Fighting and Preventing Trafficking in Human Beings since 2003. It was deeply concerned that the State party still viewed the Covenant as programmatic, aspirational, and not justiciable. It was further concerned at the alarming number of clandestine abortions and called on the State party to take all effective measures to ensure that women enjoy their right to sexual and reproductive health.

Concerning the second report of Madagascar, the Committee welcomed the ratification by the State party of the Convention Against Torture in 2005. It acknowledged that the State party has faced a serious political crisis which has reduced its ability to fulfil its obligations under the Covenant. It was concerned that child labour remained widespread in the State party and children were employed in agricultural and mining industries, as well as, for domestic service in rural and urban areas. It thus recommended that the State party reinforce the legal framework to combat child labour and adopt all the necessary legal and judicial measures to eradicate this phenomenon.

On the third periodic report of the Republic of Korea, the Committee welcomed the establishment of the National Action Plan for the Protection and Promotion of Human Rights 2007-2011. It was concerned that the Covenant was not yet fully incorporated into domestic law. It remained concerned that an increasing number of workers were excluded from receiving the minimum wage and that the minimum wage legislation did not apply to all sectors and recommended that the State party take all appropriate measures to ensure that the minimum wage was effectively enforced.

The General Comment on the right of everyone to take part in cultural life, which the Committee adopted at its current session, notes that in order for this right to be ensured, it requires from the State party both abstention (i.e., non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods). Applying limitations on the right of everyone to take part in cultural life may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions that infringe upon other human rights.

At the beginning of its session, the Committee heard information from non-governmental organizations with respect to the reports that it reviewed during this session.

The next session of the Committee will be held from 3 to 21 May 2010, during which the Committee will consider the reports of Algeria, Colombia, Mauritius, Kazakhstan and Afghanistan.

Closing Statement

MARCHAN ROMERO, Chairman of the Committee, in concluding remarks, said that they had had a very productive and intense session. The Committee had even started to work three days before the start of the session to meet with officials of the Petition Unit of the Office of the High Commissioner for Human Rights to discuss the role the Committee would now have to shoulder after the adoption of the Optional Protocol to the Covenant. This important instrument would enable the Committee to take into consideration individual communications on violations of the provisions contained in the Covenant. This would also put an end to the debate on the equal status of human rights.

During the session the Committee met with delegations from four countries: the Democratic Republic of the Congo, Madagascar, the Republic of Korea and Poland. The Committee also considered the report of Chad in the absence of a delegation. Mr. Romero said that he had had a meeting during the session with a representative from the Government of Chad, who submitted a formal apology for the absence of the delegation and who informed him that their absence had been due to logistical problems related to flights and that it had had nothing to do with their willingness to participate in the process.

During the session, the Committee further considered a draft General Comment on the right of every person to participate in cultural life, said Mr. Romero, and after two days of debate, the Committee had adopted the General Comment, number 21. This document was intended to assist States parties in understanding the scope of the provisions under the Covenant and their basic obligations that had to be fulfilled in order to comply with the Covenant.

The Committee further held a briefing session on the right to sexual and reproductive health with representatives from the United Nations Population Fund and the World Health Organization. This had been a follow-up to a similar meeting that had been held in New York and was part of an effort to generate a process which would lead to the drafting of a future General Comment on this subject, said Mr. Romero.


Concluding Observations

Democratic Republic of the Congo

Having reviewed the combined second to fourth periodic report of the Democratic Republic of the Congo, the Committee welcomed the promulgation of a new Constitution on 18 February 2006, which incorporated a wide range of human rights, including a number of economic, social and cultural rights. The Committee also welcomed the important legislation enacted by the State party, including: the Child Protection Code of January 2009 and the Law on Protection of Rights of People Living with HIV/AIDS of 2008. It welcomed the ratification of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment; and the Convention on the Rights of the Child; and its two Optional Protocols.

The Committee acknowledged the persistent instability and recurrent armed conflicts in some of the State party’s provinces which pose great challenges to the State‘s ability to fulfil its obligations under the Covenant. The Committee considered, however, that impunity for human rights violations and the illegal exploitation of the country’s natural resources, including by foreign companies, constitute major obstacles to the enjoyment of economic, social and cultural rights in the State party. The Committee reiterated the primary responsibility of the State party for ensuring security in its territory and protecting its civilians with respect to the rule of law, human rights and international humanitarian law. The Committee was concerned that in spite of the fact that international treaties supersede domestic legislation and that several rights enshrined in the Covenant were incorporated into the 2006 Constitution, domestic legislation which was contrary to the Covenant and to the new Constitution had not been abrogated and that laws giving effect to the Covenant’s provisions were hardly implemented. The Committee expressed deep concern at the state of the justice system characterized by a severe shortage of judges, lack of adequate resources, political and military interference and high levels of corruption.

The Committee called upon the State party to speed up the process of establishment of a National Human Rights Commission and ensure that it conformed to the Paris Principles, that it was provided with adequate financial and human resources, that its mandate fully covered economic, social and cultural rights and that it was empowered to receive individual complaints and conduct investigations. The Committee urged the State party to take the necessary action in accordance with the Declaration on Human Rights Defenders of 9 December 1998 to end the ongoing harassment and persecution of human rights defenders and ensure that those responsible for the threats and attacks were duly prosecuted and punished. The Committee was gravely concerned about the high levels of sexual violence and atrocities, including ethnically motivated rapes committed collectively and publicly by all armed groups, including by the Congolese Army (FADRC) and the National Congolese Police (PNC), in violation of international human rights and humanitarian law and urged the State party to urgently implement the comprehensive strategy against sexual violence endorsed by the Government in April 2009 and to allocate the necessary human and financial resources for this strategy.

Chad

Having considered the combined initial to third periodic report of Chad, the Committee regretted that, in the absence of a delegation from the State party, it had not been able to follow its usual practice to examine State reports in the presence of representatives of the concerned State. The Committee, however, took note that a representative from the State party met on 9 November 2009 with the Committee to explain the reasons that had prevented the delegation from being present during the consideration of the report.

The Committee welcomed the creation of a National Committee for the Elimination of Illiteracy. The Committee also took note with satisfaction that the State party had adopted, in 2007, a Law on the protection of persons with disabilities and that a Directorate for Person with Disabilities had been created under the Ministry of Social Action, National Solidarity and Family. The Committee also took note with satisfaction of the efforts undertaken by the State party to fight against poverty, in particular the project “Reducing Poverty and Action in Favour of Women”.

The Committee acknowledged that the State party was going through, since more than thirty years, institutional and political crises that were characterized by armed rebellions and inter-ethnic conflicts, which had had and continued to have disastrous consequences on the general situation in the county and in particular on economic, social, cultural, civil and political rights. The Committee was especially concerned about the impact of the food crisis in Darfur and the massive displacements of population that had taken place in the eastern part of Chad; the fragile peace inside the country and at the borders; as well as the generalized poverty that was still on the rise. The Committee regretted that the National Human Rights Commission was not fully functional and that it did not conform to the Paris Principles.

Concerned by the negative consequences of the exploitation of natural resources, the Committee called on the State party to immediately conduct assessments of the impact on the environment and on the society of mining activities, and petroleum prospecting and to be on the watch that such activities did not impede indigenous people’s right to access their ancestral land and natural resources. The Committee was also concerned about the fact that women continued to be subjected to widespread discrimination and called on the State party to take stronger and more effective measures to tackle inequality and discrimination against women. The Committee was also deeply concerned by the prevalence of child labour, and called on the State party to put an end to the practice of cattlemen boys, muhajirin children and child domestic workers.

Poland

Having considered the fifth periodic report of Poland, the Committee welcomed the adoption of measures, legislative and otherwise, by the State party that have contributed to the realization of the economic, social and cultural rights enshrined in the Covenant, including the following: the ratification in September 2003 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children; the Protocol against the Smuggling of Migrants by Land, Sea and Air supplementing the Convention against Transnational Organized Crime; the implementation of the National Programme for Fighting and Preventing Trafficking in Human Beings since 2003; the implementation of various programmes to combat racial discrimination, xenophobia and related intolerance; the implementation of the Programme for the Roma Community in Poland; the substantial increase in minimum wage; and the adoption of various regulations for the protection of the environment and for the improvement of industrial hygiene in the country.

The Committee was deeply concerned that the State party still viewed the Covenant as programmatic, aspirational, and not justiciable and remained concerned that the State party had not yet taken the necessary measures to ensure that the Covenant was given full effect in its domestic legal order, especially in light of the decision of the Supreme Court in 2000 to the effect that the Covenant provisions could not be invoked by individuals before national courts. The Committee was also concerned that the distinction between ‘National Minorities’ and ‘Ethnic Minorities’, as provided for in the Act on National and Ethnic Minorities and Regional Language, was discriminatory towards some minorities and that some minorities present in the territory of the State party were excluded from the definition of these two groups. The Committee remained concerned that the Roma communities in the State party continued to face widespread discrimination in areas such as employment, education, land tenure, access to welfare benefits, housing and health care, which impaired the enjoyment of their economic, social and cultural rights.

Concerned that there continued to be inequality in wages earned by men and women, the Committee reiterated its recommendation made at the consideration of the fourth report of the State party, calling on it to adopt measures to enforce existing legal provisions and administrative regulations guaranteeing equal remuneration for women and men. The Committee called on the State party to incorporate in its legislation a specific provision on equal pay for equal work of equal value. The Committee was also concerned at the increasing consumption of alcohol and use of tobacco in the State party, particularly among women and children in the State party, and called on the State party to adopt the bill amending the law on tobacco, to combat tobacco use especially among children, and to adopt effective measures, including public awareness campaigns, to reduce both tobacco use and alcohol consumption. The Committee was further concerned at the alarming number of clandestine abortions performed in the State party and called on the State party to take all effective measures to ensure that women enjoy their right to sexual and reproductive health, including by enforcing the legislation on abortion and implementing a mechanism of timely and systematic referral in cases of conscientious objection.

Madagascar

Having considered the second periodic report of Madagascar, the Committee welcomed the ratification by the State party of the Convention Against Torture in 2005; the two Optional Protocols to the Convention of the Rights on the Child, in 2004, as well as the signing, in 2007, of the Optional Protocol to the International Covenant on the Rights of Economic, Social and Cultural Rights. The Committee further welcomed the adoption of a new Constitution in 1992 which incorporated a wide range of human rights, including a number of economic, social and cultural rights. The Committee further welcomed the important legislation enacted by the State party, including: an Act of 2007 concerning marriage and systems of matrimonial property, which set the marriage age at 18, both for girls and boys; an Act of 2006 on the protection of persons affected by HIV/Aids; and Acts of 1995 and 2004 on free and compulsory primary education.

The Committee acknowledged that the State party has faced a serious political crisis which has reduced its ability to fulfil its obligations under the Covenant. The Committee was concerned about the lack of implementation of Covenant provisions by domestic courts, despite the fact that international treaties were part of domestic legislation and that several rights enshrined in the Covenant had been incorporated into the 1992 Constitution of the State party. The Committee remained concerned that corruption and impunity associated with it persisted in the State party, impeding the enjoyment by all of economic, social and cultural rights, despite efforts made by the State party to combat corruption. The Committee was also concerned that land property acquisition by foreign investors, or granted following contracts with companies, including for agricultural purposes, led to a negative impact on the realization by the Malagasy population of the right to food.

Concerned that discrimination against the descendants of slaves persisted, despite the legislation protecting against discrimination, the Committee urged the State party to take appropriate measures to eliminate discrimination against descendants of slaves, including by applying the existing legislation against discrimination and to take awareness-raising measures to combat persistent negative attitudes and stereotypes. While noting that child labour was prohibited by the law, the Committee was concerned that child labour remained widespread in the State party and that children were employed in agricultural and mining industries, as well as for domestic service in rural and urban areas. The Committee thus recommended that the State party reinforce the legal framework to combat child labour and adopt all the necessary legal and judicial measures to eradicate this phenomenon. The Committee was also concerned that school attendance was hampered by stereotyped attitudes of parents on the lack of relevance of education to everyday life and livelihoods and job opportunities. The Committee recommended that the State party conduct awareness-raising campaigns for the parents on the relevance of education of their children and that it updated its school curricula, so as to include knowledge and skills, to enable students to improve their prospects for livelihoods and job opportunities.

Republic of Korea

Having considered the third periodic report of the Republic of Korea, the Committee welcomed, inter alia: the establishment of the National Action Plan for the Protection and Promotion of Human Rights 2007-2011, and of the National Human Rights Policy Council as a consultative body in charge of its implementation; the coming into effect of the abolition of the Ho ju system; the changes to the Immigration Control Act that grant humanitarian status holders the right to work and provide asylum seekers with the possibility of applying for a work permit; the expansion of free and compulsory education to include secondary education in 2004; and the use of cultural vouchers programmes to facilitate access to cultural performances for low income individuals and families.

The Committee was concerned that the Covenant was not yet fully incorporated into domestic law and remained concerned that: the scope of economic, social and cultural rights under the Constitution was narrower than in the Covenant; the Constitution only applied to citizens; and that Covenant rights had seldom been invoked before, or directly enforced by, domestic courts, tribunals or administrative authorities. The Committee was also concerned about the limited jurisdiction of the National Human Rights Commission of Korea over Covenant rights, and the lack of its investigative power and was deeply concerned about downsizing of the Commission by 21 per cent, whereas for all other Ministries it has been of 2 per cent at the most. The Committee was further concerned that a comprehensive anti-discrimination law had still not been adopted by the State party, due to the fact that the Anti-Discrimination Bill submitted to the seventeenth National Assembly in December 2007 was discarded without consideration.

Concerned at the lack of employment opportunities in the State party, in particular for young persons as well as for women, the Committee recommended that the State party promote greater employment of women and young persons, who are under-represented in the labour force. The Committee remained concerned that an increasing number of workers were excluded from receiving the minimum wage and that the minimum wage legislation did not apply to all sectors and recommended that the State party take all appropriate measures to ensure that the minimum wage is effectively enforced, and that it provide workers and their families with an adequate standard of living in accordance with Article 7 of the Covenant. The Committee was highly concerned about the frequent cases of prosecution of workers with regard to labour-management relations and excessive use of force demonstrated against striking workers, mainly based on Article 314 of the Penal Code regarding “Obstruction of Business”. The Committee strongly recommended that the State party guarantee the right of all persons to freely form and join trade unions, the right to engage in collective bargaining through trade unions and the right to strike by refraining from the use of the “Obstruction of Business” clause as a systematic recourse to weaken the right to strike and from the use of force, beyond what was absolutely necessary, for the maintenance of public order.

General Comment on Right of Everyone to Take Part in Cultural Life

General Comment number 21 on the right of everyone to take part in cultural life notes that this right is closely related to the other cultural rights contained in article 15 of the Covenant, namely: the right to enjoy the benefits of scientific progress and its applications; the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which they are the author; as well as the right to freedom indispensable for scientific research and creative activity. The right of everyone to take part in cultural life is also intrinsically linked to the right to education, through which individuals and communities pass on their values, religion, customs, language and other cultural references, and which helps to foster an atmosphere of mutual understanding and respect for cultural values.

The General Comment also notes that the right to take part in cultural life can be characterized as a freedom. In order for this right to be ensured, it requires from the State party both abstention (i.e., non-interference with the exercise of cultural practices and with access to cultural goods and services) and positive action (ensuring preconditions for participation, facilitation and promotion of cultural life, and access to and preservation of cultural goods). Applying limitations on the right of everyone to take part in cultural life may be necessary in certain circumstances, in particular in the case of negative practices, including those attributed to customs and traditions that infringe upon other human rights.

The General Comment further notes that the right of everyone to take part in cultural life, like the other rights enshrined in the Covenant, imposes three types or levels of obligations on States parties: the obligation to respect; the obligation to protect; and the obligation to fulfil. The obligation to respect requires States parties to refrain from interfering, directly or indirectly, with the enjoyment of the right to take part in cultural life. The obligation to protect requires States parties to take steps to prevent third parties from interfering with the right to take part in cultural life. Finally, the obligation to fulfil requires States parties to adopt appropriate legislative, administrative, judicial, budgetary, promotional and other measures aimed at the full realization of the right enshrined in article 15, paragraph 1 (a), of the Covenant.


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