Reporting by States parties : .
24/02/89. CESCR General comment 1. (General Comments)
Reporting by States parties
(Third session, 1989)
1. The reporting obligations which are contained in part IV of the Covenant are
designed principally to assist each State party in fulfilling its obligations
under the Covenant and, in addition, to provide a basis on which the Council,
assisted by the Committee, can discharge its responsibilities for monitoring
States parties' compliance with their obligations and for facilitating the
realization of economic, social and cultural rights in accordance with the
provisions of the Covenant. The Committee considers that it would be incorrect
to assume that reporting is essentially only a procedural matter designed
solely to satisfy each State party's formal obligation to report to the
appropriate international monitoring body. On the contrary, in accordance with
the letter and spirit of the Covenant, the processes of preparation and
submission of reports by States can, and indeed should, serve to achieve a
variety of objectives.
2. A first objective, which is of particular relevance to the initial
report required to be submitted within two years of the Covenant's entry into
force for the State party concerned, is to ensure that a comprehensive review
is undertaken with respect to national legislation, administrative rules and
procedures, and practices in an effort to ensure the fullest possible
conformity with the Covenant. Such a review might, for example, be undertaken
in conjunction with each of the relevant national ministries or other
authorities responsible for policy-making and implementation in the different
fields covered by the Covenant.
3. A second objective is to ensure that the State party monitors the
actual situation with respect to each of the rights on a regular basis and is
thus aware of the extent to which the various rights are, or are not, being
enjoyed by all individuals within its territory or under its jurisdiction. From
the Committee's experience to date, it is clear that the fulfilment of this
objective cannot be achieved only by the preparation of aggregate national
statistics or estimates, but also requires that special attention be given to
any worse-off regions or areas and to any specific groups or subgroups which
appear to be particularly vulnerable or disadvantaged. Thus, the essential
first step towards promoting the realization of economic, social and cultural
rights is diagnosis and knowledge of the existing situation. The Committee is
aware that this process of monitoring and gathering information is a
potentially time-consuming and costly one and that international assistance and
cooperation, as provided for in article 2, paragraph 1 and articles 22 and 23
of the Covenant, may well be required in order to enable some States parties to
fulfil the relevant obligations. If that is the case, and the State party
concludes that it does not have the capacity to undertake the monitoring
process which is an integral part of any process designed to promote accepted
goals of public policy and is indispensable to the effective implementation of
the Covenant, it may note this fact in its report to the Committee and indicate
the nature and extent of any international assistance that it may need.
4. While monitoring is designed to give a detailed overview of the existing
situation, the principal value of such an overview is to provide the basis for
the elaboration of clearly stated and carefully targeted policies, including
the establishment of priorities which reflect the provisions of the Covenant.
Therefore, a third objective of the reporting process is to enable the
Government to demonstrate that such principled policy-making has in fact been
undertaken. While the Covenant makes this obligation explicit only in article
14 in cases where "compulsory primary education, free of charge" has
not yet been secured for all, a comparable obligation "to work out and
adopt a detailed plan of action for the progressive implementation" of
each of the rights contained in the Covenant is clearly implied by the
obligation in article 2, paragraph 1 "to take steps ... by all appropriate
means ...".
5. A fourth objective of the reporting process it to facilitate public
scrutiny of government policies with respect to economic, social and cultural
rights and to encourage the involvement of the various economic, social and
cultural sectors of society in the formulation, implementation and review of
the relevant policies. In examining reports submitted to it to date, the
Committee has welcomed the fact that a number of States parties, reflecting
different political and economic systems, have encouraged inputs by such
non-governmental groups into the preparation of their reports under the
Covenant. Other States have ensured the widespread dissemination of their
reports with a view to enabling comments to be made by the public at large. In
these ways, the preparation of the report, and its consideration at the
national level can come to be of at least as much value as the constructive dialogue
conducted at the international level between the Committee and representatives
of the reporting State.
6. A fifth objective is to provide a basis on which the State party
itself, as well as the Committee, can effectively evaluate the extent to which
progress has been made towards the realization of the obligations contained in
the Covenant. For this purpose, it may be useful for States to identify
specific benchmarks or goals against which their performance in a given area
can be assessed. Thus, for example, it is generally agreed that it is important
to set specific goals with respect to the reduction of infant mortality, the
extent of vaccination of children, the intake of calories per person, the
number of persons per health-care provider, etc. In many of these areas, global
benchmarks are of limited use, whereas national or other more specific
benchmarks can provide an extremely valuable indication of progress.
7. In this regard, the Committee wishes to note that the Covenant attaches
particular importance to the concept of "progressive realization" of
the relevant rights and, for that reason, the Committee urges States parties to
include in their periodic reports information which shows the progress over
time, with respect to the effective realization of the relevant rights. By the
same token, it is clear that qualitative, as well as quantitative, data are
required in order for an adequate assessment of the situation to be made.
8. A sixth objective is to enable the State party itself to develop a
better understanding of the problems and shortcomings encountered in efforts to
realize progressively the full range of economic, social and cultural rights.
For this reason, it is essential that States parties report in detail on the
"factors and difficulties" inhibiting such realization. This process
of identification and recognition of the relevant difficulties then provides
the framework within which more appropriate policies can be devised.
9. A seventh objective is to enable the Committee, and the States
parties as a whole, to facilitate the exchange of information among States and
to develop a better understanding of the common problems faced by States and a
fuller appreciation of the type of measures which might be taken to promote
effective realization of each of the rights contained in the Covenant. This
part of the process also enables the Committee to identify the most appropriate
means by which the international community might assist States, in accordance
with articles 22 and 23 of the Covenant. In order to underline the importance
which the Committee attaches to this objective, a separate general comment on
those articles will be discussed by the Committee at its fourth session.
International technical assistance
measures (Art. 22) : . 02/02/90. CESCR General comment 2. (General Comments)
International technical assistance measures
(Art. 22 of the Covenant)
(Fourth session, 1990)
1. Article 22 of the Covenant establishes a mechanism by which the Economic and
Social Council may bring to the attention of relevant United Nations bodies any
matters arising out of reports submitted under the Covenant "which may
assist such bodies in deciding, each within its field of competence, on the
advisability of international measures likely to contribute to the effective
progressive implementation of the ... Covenant". While the primary
responsibility under article 22 is vested in the Council, it is clearly
appropriate for the Committee on Economic, Social and Cultural Rights to play
an active role in advising and assisting the Council in this regard.
2. Recommendations in accordance with article 22 may be made to any
"organs of the United Nations, their subsidiary organs and specialized
agencies concerned with furnishing technical assistance". The Committee
considers that this provision should be interpreted so as to include virtually
all United Nations organs and agencies involved in any aspect of international
development cooperation. It would therefore be appropriate for recommendations
in accordance with article 22 to be addressed, inter alia, to the
Secretary-General, subsidiary organs of the Council such as the Commission on
Human Rights, the Commission on Social Development and the Commission on the
Status of Women, other bodies such as UNDP, UNICEF and CDP, agencies such as
the World Bank and IMF, and any of the other specialized agencies such as ILO,
FAO, UNESCO and WHO.
3. Article 22 could lead either to recommendations of a general policy nature
or to more narrowly focused recommendations relating to a specific situation.
In the former context, the principal role of the Committee would seem to be to
encourage greater attention to efforts to promote economic, social and cultural
rights within the framework of international development cooperation activities
undertaken by, or with the assistance of, the United Nations and its agencies.
In this regard the Committee notes that the Commission on Human Rights, in its
resolution 1989/13 of 2 March 1989, invited it "to give consideration to
means by which the various United Nations agencies working in the field of
development could best integrate measures designed to promote full respect for
economic, social and cultural rights in their activities".
4. As a preliminary practical matter, the Committee notes that its own
endeavours would be assisted, and the relevant agencies would also be better
informed, if they were to take a greater interest in the work of the Committee.
While recognizing that such an interest can be demonstrated in a variety of ways,
the Committee observes that attendance by representatives of the appropriate
United Nations bodies at its first four sessions has, with the notable
exceptions of ILO, UNESCO and WHO, been very low. Similarly, pertinent
materials and written information had been received from only a very limited
number of agencies. The Committee considers that a deeper understanding of the
relevance of economic, social and cultural rights in the context of
international development cooperation activities would be considerably
facilitated through greater interaction between the Committee and the
appropriate agencies. At the very least, the day of general discussion on a
specific issue, which the Committee undertakes at each of its sessions,
provides an ideal context in which a potentially productive exchange of views
can be undertaken.
5. On the broader issues of the promotion of respect for human rights in the
context of development activities, the Committee has so far seen only rather
limited evidence of specific efforts by United Nations bodies. It notes with
satisfaction in this regard the initiative taken jointly by the Centre for
Human Rights and UNDP in writing to United Nations Resident Representatives and
other field-based officials, inviting their "suggestions and advice, in
particular with respect to possible forms of cooperation in ongoing projects
[identified] as having a human rights dimension or in new ones in response to a
specific Government's request". The Committee has also been informed of
long-standing efforts undertaken by ILO to link its own human rights and other
international labour standards to its technical cooperation activities.
6. With respect to such activities, two general principles are important. The
first is that the two sets of human rights are indivisible and interdependent.
This means that efforts to promote one set of rights should also take full
account of the other. United Nations agencies involved in the promotion of
economic, social and cultural rights should do their utmost to ensure that
their activities are fully consistent with the enjoyment of civil and political
rights. In negative terms this means that the international agencies should
scrupulously avoid involvement in projects which, for example, involve the use
of forced labour in contravention of international standards, or promote or
reinforce discrimination against individuals or groups contrary to the
provisions of the Covenant, or involve large-scale evictions or displacement of
persons without the provision of all appropriate protection and compensation.
In positive terms, it means that, wherever possible, the agencies should act as
advocates of projects and approaches which contribute not only to economic
growth or other broadly defined objectives, but also to enhanced enjoyment of
the full range of human rights.
7. The second principle of general relevance is that development cooperation
activities do not automatically contribute to the promotion of respect for
economic, social and cultural rights. Many activities undertaken in the name of
"development" have subsequently been recognized as ill-conceived and
even counter-productive in human rights terms. In order to reduce the incidence
of such problems, the whole range of issues dealt with in the Covenant should,
wherever possible and appropriate, be given specific and careful consideration.
8. Despite the importance of seeking to integrate human rights concerns into
development activities, it is true that proposals for such integration can too
easily remain at a level of generality. Thus, in an effort to encourage the
operationalization of the principle contained in article 22 of the Covenant,
the Committee wishes to draw attention to the following specific measures which
merit consideration by the relevant bodies:
(a) As a matter of principle, the appropriate United Nations organs and
agencies should specifically recognize the intimate relationship which should
be established between development activities and efforts to promote respect
for human rights in general, and economic, social and cultural rights in
particular. The Committee notes in this regard the failure of each of the first
three United Nations Development Decade Strategies to recognize that
relationship and urges that the fourth such strategy, to be adopted in 1990,
should rectify that omission;
(b) Consideration should be given by United Nations agencies to the
proposal, made by the Secretary-General in a report of 1979 1/
that a "human rights impact statement" be required to be prepared in
connection with all major development cooperation activities;
(c) The training or briefing given to project and other personnel
employed by United Nations agencies should include a component dealing with
human rights standards and principles;
(d) Every effort should be made, at each phase of a development project,
to ensure that the rights contained in the Covenants are duly taken into
account. This would apply, for example, in the initial assessment of the
priority needs of a particular country, in the identification of particular
projects, in project design, in the implementation of the project, and in its
final evaluation.
9. A matter which has been of particular concern to the Committee in the
examination of the reports of States parties is the adverse impact of the debt
burden and of the relevant adjustment measures on the enjoyment of economic,
social and cultural rights in many countries. The Committee recognizes that
adjustment programmes will often be unavoidable and that these will frequently
involve a major element of austerity. Under such circumstances, however,
endeavours to protect the most basic economic, social and cultural rights
become more, rather than less, urgent. States parties to the Covenant, as well
as the relevant United Nations agencies, should thus make a particular effort
to ensure that such protection is, to the maximum extent possible, built-in to
programmes and policies designed to promote adjustment. Such an approach, which
is sometimes referred to as "adjustment with a human face" or as
promoting "the human dimension of development" requires that the goal
of protecting the rights of the poor and vulnerable should become a basic
objective of economic adjustment. Similarly, international measures to deal
with the debt crisis should take full account of the need to protect economic,
social and cultural rights through, inter alia, international cooperation.
In many situations, this might point to the need for major debt relief
initiatives.
10. Finally, the Committee wishes to draw attention to the important
opportunity provided to States parties, in accordance with article 22 of the
Covenant, to identify in their reports any particular needs they might have for
technical assistance or development cooperation.
The nature of States parties
obligations (Art. 2, par.1) : . 14/12/90. CESCR General comment 3. (General Comments)
The nature of States parties obligations
(Art. 2, para. 1 of the Covenant)
(Fifth session, 1990)
The nature of States parties obligations (art. 2, para. 1 of the Covenant)
1. Article 2 is of particular importance to a full understanding of the
Covenant and must be seen as having a dynamic relationship with all of the
other provisions of the Covenant. It describes the nature of the general legal
obligations undertaken by States parties to the Covenant. Those obligations
include both what may be termed (following the work of the International Law
Commission) obligations of conduct and obligations of result. While great
emphasis has sometimes been placed on the difference between the formulations
used in this provision and that contained in the equivalent article 2 of the
International Covenant on Civil and Political Rights, it is not always
recognized that there are also significant similarities. In particular, while
the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes various
obligations which are of immediate effect. Of these, two are of particular
importance in understanding the precise nature of States parties obligations.
One of these, which is dealt with in a separate general comment, and which is
to be considered by the Committee at its sixth session, is the
"undertaking to guarantee" that relevant rights "will be
exercised without discrimination ...".
2. The other is the undertaking in article 2 (1) "to take steps",
which in itself, is not qualified or limited by other considerations. The full
meaning of the phrase can also be gauged by noting some of the different
language versions. In English the undertaking is "to take steps", in
French it is "to act" ("s'engage à agir") and in Spanish it
is "to adopt measures" ("a adoptar medidas"). Thus while
the full realization of the relevant rights may be achieved progressively,
steps towards that goal must be taken within a reasonably short time after the
Covenant's entry into force for the States concerned. Such steps should be
deliberate, concrete and targeted as clearly as possible towards meeting the
obligations recognized in the Covenant.
3. The means which should be used in order to satisfy the obligation to take
steps are stated in article 2 (1) to be "all appropriate means, including
particularly the adoption of legislative measures". The Committee
recognizes that in many instances legislation is highly desirable and in some
cases may even be indispensable. For example, it may be difficult to combat
discrimination effectively in the absence of a sound legislative foundation for
the necessary measures. In fields such as health, the protection of children
and mothers, and education, as well as in respect of the matters dealt with in
articles 6 to 9, legislation may also be an indispensable element for many
purposes.
4. The Committee notes that States parties have generally been conscientious in
detailing at least some of the legislative measures that they have taken in
this regard. It wishes to emphasize, however, that the adoption of legislative
measures, as specifically foreseen by the Covenant, is by no means exhaustive
of the obligations of States parties. Rather, the phrase "by all
appropriate means" must be given its full and natural meaning. While each
State party must decide for itself which means are the most appropriate under
the circumstances with respect to each of the rights, the
"appropriateness" of the means chosen will not always be
self-evident. It is therefore desirable that States parties' reports should
indicate not only the measures that have been taken but also the basis on which
they are considered to be the most "appropriate" under the
circumstances. However, the ultimate determination as to whether all appropriate
measures have been taken remains one for the Committee to make.
5. Among the measures which might be considered appropriate, in addition to
legislation, is the provision of judicial remedies with respect to rights which
may, in accordance with the national legal system, be considered justiciable.
The Committee notes, for example, that the enjoyment of the rights recognized,
without discrimination, will often be appropriately promoted, in part, through
the provision of judicial or other effective remedies. Indeed, those States
parties which are also parties to the International Covenant on Civil and
Political Rights are already obligated (by virtue of arts. 2 (paras. 1 and 3),
3 and 26) of that Covenant to ensure that any person whose rights or freedoms
(including the right to equality and non-discrimination) recognized in that
Covenant are violated, "shall have an effective remedy" (art. 2 (3) (a)).
In addition, there are a number of other provisions in the International
Covenant on Economic, Social and Cultural Rights, including articles 3, 7 (a)
(i), 8, 10 (3), 13 (2) (a), (3) and (4) and 15 (3) which would
seem to be capable of immediate application by judicial and other organs in
many national legal systems. Any suggestion that the provisions indicated are
inherently non-self-executing would seem to be difficult to sustain.
6. Where specific policies aimed directly at the realization of the rights
recognized in the Covenant have been adopted in legislative form, the Committee
would wish to be informed, inter alia, as to whether such laws create
any right of action on behalf of individuals or groups who feel that their
rights are not being fully realized. In cases where constitutional recognition
has been accorded to specific economic, social and cultural rights, or where
the provisions of the Covenant have been incorporated directly into national
law, the Committee would wish to receive information as to the extent to which
these rights are considered to be justiciable (i.e. able to be invoked before
the courts). The Committee would also wish to receive specific information as
to any instances in which existing constitutional provisions relating to
economic, social and cultural rights have been weakened or significantly
changed.
7. Other measures which may also be considered "appropriate" for the
purposes of article 2 (1) include, but are not limited to, administrative,
financial, educational and social measures.
8. The Committee notes that the undertaking "to take steps ... by all
appropriate means including particularly the adoption of legislative
measures" neither requires nor precludes any particular form of government
or economic system being used as the vehicle for the steps in question,
provided only that it is democratic and that all human rights are thereby
respected. Thus, in terms of political and economic systems the Covenant is
neutral and its principles cannot accurately be described as being predicated
exclusively upon the need for, or the desirability of a socialist or a
capitalist system, or a mixed, centrally planned, or laisser-faire
economy, or upon any other particular approach. In this regard, the Committee
reaffirms that the rights recognized in the Covenant are susceptible of
realization within the context of a wide variety of economic and political
systems, provided only that the interdependence and indivisibility of the two
sets of human rights, as affirmed inter alia in the preamble to the
Covenant, is recognized and reflected in the system in question. The Committee
also notes the relevance in this regard of other human rights and in particular
the right to development.
9. The principal obligation of result reflected in article 2 (1) is to take
steps "with a view to achieving progressively the full realization of the
rights recognized" in the Covenant. The term "progressive
realization" is often used to describe the intent of this phrase. The
concept of progressive realization constitutes a recognition of the fact that
full realization of all economic, social and cultural rights will generally not
be able to be achieved in a short period of time. In this sense the obligation
differs significantly from that contained in article 2 of the International
Covenant on Civil and Political Rights which embodies an immediate obligation
to respect and ensure all of the relevant rights. Nevertheless, the fact that
realization over time, or in other words progressively, is foreseen under the
Covenant should not be misinterpreted as depriving the obligation of all
meaningful content. It is on the one hand a necessary flexibility device,
reflecting the realities of the real world and the difficulties involved for
any country in ensuring full realization of economic, social and cultural
rights. On the other hand, the phrase must be read in the light of the overall
objective, indeed the raison d'être, of the Covenant which is to
establish clear obligations for States parties in respect of the full
realization of the rights in question. It thus imposes an obligation to move as
expeditiously and effectively as possible towards that goal. Moreover, any
deliberately retrogressive measures in that regard would require the most
careful consideration and would need to be fully justified by reference to the
totality of the rights provided for in the Covenant and in the context of the
full use of the maximum available resources.
10. On the basis of the extensive experience gained by the Committee, as well
as by the body that preceded it, over a period of more than a decade of
examining States parties' reports the Committee is of the view that a minimum
core obligation to ensure the satisfaction of, at the very least, minimum
essential levels of each of the rights is incumbent upon every State party.
Thus, for example, a State party in which any significant number of individuals
is deprived of essential foodstuffs, of essential primary health care, of basic
shelter and housing, or of the most basic forms of education is, prima facie,
failing to discharge its obligations under the Covenant. If the Covenant were
to be read in such a way as not to establish such a minimum core obligation, it
would be largely deprived of its raison d'être. By the same token, it
must be noted that any assessment as to whether a State has discharged its
minimum core obligation must also take account of resource constraints applying
within the country concerned. Article 2 (1) obligates each State party to take
the necessary steps "to the maximum of its available resources". In
order for a State party to be able to attribute its failure to meet at least
its minimum core obligations to a lack of available resources it must
demonstrate that every effort has been made to use all resources that are at
its disposition in an effort to satisfy, as a matter of priority, those minimum
obligations.
11. The Committee wishes to emphasize, however, that even where the available
resources are demonstrably inadequate, the obligation remains for a State party
to strive to ensure the widest possible enjoyment of the relevant rights under
the prevailing circumstances. Moreover, the obligations to monitor the extent
of the realization, or more especially of the non-realization, of economic,
social and cultural rights, and to devise strategies and programmes for their
promotion, are not in any way eliminated as a result of resource constraints.
The Committee has already dealt with these issues in its General Comment 1
(1989).
12. Similarly, the Committee underlines the fact that even in times of severe
resources constraints whether caused by a process of adjustment, of economic
recession, or by other factors the vulnerable members of society can and indeed
must be protected by the adoption of relatively low-cost targeted programmes.
In support of this approach the Committee takes note of the analysis prepared
by UNICEF entitled "Adjustment with a human face: protecting the
vulnerable and promoting growth, the analysis by UNDP in its Human
Development Report 1990 and the
analysis by the World Bank in the World Development Report 1990.
13. A final element of article 2 (1), to which attention must be drawn, is that
the undertaking given by all States parties is "to take steps,
individually and through international assistance and cooperation, especially
economic and technical ...". The Committee notes that the phrase "to
the maximum of its available resources" was intended by the drafters of
the Covenant to refer to both the resources existing within a State and those
available from the international community through international cooperation
and assistance. Moreover, the essential role of such cooperation in
facilitating the full realization of the relevant rights is further underlined
by the specific provisions contained in articles 11, 15, 22 and 23. With
respect to article 22 the Committee has already drawn attention, in General
Comment 2 (1990), to some of the opportunities and responsibilities that exist
in relation to international cooperation. Article 23 also specifically
identifies "the furnishing of technical assistance" as well as other
activities, as being among the means of "international action for the
achievement of the rights recognized ...".
14. The Committee wishes to emphasize that in accordance with Articles 55 and
56 of the Charter of the United Nations, with well-established principles of
international law, and with the provisions of the Covenant itself,
international cooperation for development and thus for the realization of
economic, social and cultural rights is an obligation of all States. It is
particularly incumbent upon those States which are in a position to assist
others in this regard. The Committee notes in particular the importance of the
Declaration on the Right to Development adopted by the General Assembly in its
resolution 41/128 of 4 December 1986 and the need for States parties to take full
account of all of the principles recognized therein. It emphasizes that, in the
absence of an active programme of international assistance and cooperation on
the part of all those States that are in a position to undertake one, the full
realization of economic, social and cultural rights will remain an unfulfilled
aspiration in many countries. In this respect, the Committee also recalls the
terms of its General Comment 2 (1990).
The right to adequate housing (Art.11 (1)) : . 13/12/91. CESCR General comment 4. (General Comments)
The right to adequate housing
(Art.
11 (1) of the Covenant)
(Sixth session, 1991)
1. Pursuant to article 11 (1) of the Covenant, States parties "recognize
the right of everyone to an adequate standard of living for himself and his
family, including adequate food, clothing and housing, and to the continuous
improvement of living conditions". The human right to adequate housing,
which is thus derived from the right to an adequate standard of living, is of
central importance for the enjoyment of all economic, social and cultural
rights.
2. The Committee has been able to accumulate a large amount of information
pertaining to this right. Since 1979, the Committee and its predecessors have
examined 75 reports dealing with the right to adequate housing. The Committee
has also devoted a day of general discussion to the issue at each of its third
(see E/1989/22, para. 312) and fourth sessions (E/1990/23, paras. 281-285). In
addition, the Committee has taken careful note of information generated by the
International Year of Shelter for the Homeless (1987) including the Global
Strategy for Shelter to the Year 2000 adopted by the General Assembly in its
resolution 42/191 of 11 December 1987. The Committee has also reviewed relevant
reports and other documentation of the Commission on Human Rights and the
Sub-Commission on Prevention of Discrimination and Protection of Minorities.
3. Although a wide variety of international instruments address the different
dimensions of the right to adequate housing article 11 (1) of the Covenant is
the most comprehensive and perhaps the most important of the relevant
provisions.
4. Despite the fact that the international community has frequently reaffirmed
the importance of full respect for the right to adequate housing, there remains
a disturbingly large gap between the standards set in article 11 (1) of the
Covenant and the situation prevailing in many parts of the world. While the
problems are often particularly acute in some developing countries which confront
major resource and other constraints, the Committee observes that significant
problems of homelessness and inadequate housing also exist in some of the most
economically developed societies. The United Nations estimates that there are
over 100 million persons homeless worldwide and over 1 billion inadequately
housed. There is no indication that this number is decreasing. It seems clear
that no State party is free of significant problems of one kind or another in
relation to the right to housing.
5. In some instances, the reports of States parties examined by the Committee
have acknowledged and described difficulties in ensuring the right to adequate
housing. For the most part, however, the information provided has been
insufficient to enable the Committee to obtain an adequate picture of the
situation prevailing in the State concerned. This General Comment thus aims to
identify some of the principal issues which the Committee considers to be
important in relation to this right.
6. The right to adequate housing applies to everyone. While the reference to
"himself and his family" reflects assumptions as to gender roles and
economic activity patterns commonly accepted in 1966 when the Covenant was
adopted, the phrase cannot be read today as implying any limitations upon the
applicability of the right to individuals or to female-headed households or
other such groups. Thus, the concept of "family" must be understood
in a wide sense. Further, individuals, as well as families, are entitled to adequate
housing regardless of age, economic status, group or other affiliation or
status and other such factors. In particular, enjoyment of this right must, in
accordance with article 2 (2) of the Covenant, not be subject to any form of
discrimination.
7. In the Committee's view, the right to housing should not be interpreted in a
narrow or restrictive sense which equates it with, for example, the shelter
provided by merely having a roof over one's head or views shelter exclusively
as a commodity. Rather it should be seen as the right to live somewhere in
security, peace and dignity. This is appropriate for at least two reasons. In
the first place, the right to housing is integrally linked to other human
rights and to the fundamental principles upon which the Covenant is premised.
This "the inherent dignity of the human person" from which the rights
in the Covenant are said to derive requires that the term "housing"
be interpreted so as to take account of a variety of other considerations, most
importantly that the right to housing should be ensured to all persons
irrespective of income or access to economic resources. Secondly, the reference
in article 11 (1) must be read as referring not just to housing but to adequate
housing. As both the Commission on Human Settlements and the Global Strategy
for Shelter to the Year 2000 have stated: "Adequate shelter means ...
adequate privacy, adequate space, adequate security, adequate lighting and
ventilation, adequate basic infrastructure and adequate location with regard to
work and basic facilities - all at a reasonable cost".
8. Thus the concept of adequacy is particularly significant in relation to the
right to housing since it serves to underline a number of factors which must be
taken into account in determining whether particular forms of shelter can be
considered to constitute "adequate housing" for the purposes of the
Covenant. While adequacy is determined in part by social, economic, cultural,
climatic, ecological and other factors, the Committee believes that it is nevertheless
possible to identify certain aspects of the right that must be taken into
account for this purpose in any particular context. They include the following:
(a) Legal security of tenure. Tenure takes a variety of forms, including
rental (public and private) accommodation, cooperative housing, lease,
owner-occupation, emergency housing and informal settlements, including
occupation of land or property. Notwithstanding the type of tenure, all persons
should possess a degree of security of tenure which guarantees legal protection
against forced eviction, harassment and other threats. States parties should
consequently take immediate measures aimed at conferring legal security of
tenure upon those persons and households currently lacking such protection, in
genuine consultation with affected persons and groups;
(b) Availability of services, materials, facilities and infrastructure.
An adequate house must contain certain facilities essential for health,
security, comfort and nutrition. All beneficiaries of the right to adequate
housing should have sustainable access to natural and common resources, safe
drinking water, energy for cooking, heating and lighting, sanitation and
washing facilities, means of food storage, refuse disposal, site drainage and
emergency services;
(c) Affordability. Personal or household financial costs associated with
housing should be at such a level that the attainment and satisfaction of other
basic needs are not threatened or compromised. Steps should be taken by States
parties to ensure that the percentage of housing-related costs is, in general,
commensurate with income levels. States parties should establish housing
subsidies for those unable to obtain affordable housing, as well as forms and
levels of housing finance which adequately reflect housing needs. In accordance
with the principle of affordability, tenants should be protected by appropriate
means against unreasonable rent levels or rent increases. In societies where
natural materials constitute the chief sources of building materials for
housing, steps should be taken by States parties to ensure the availability of
such materials;
(d) Habitability. Adequate housing must be habitable, in terms of
providing the inhabitants with adequate space and protecting them from cold,
damp, heat, rain, wind or other threats to health, structural hazards, and
disease vectors. The physical safety of occupants must be guaranteed as well.
The Committee encourages States parties to comprehensively apply the Health
Principles of Housing 5/
prepared by WHO which view housing as the environmental factor most frequently
associated with conditions for disease in epidemiological analyses; i.e.
inadequate and deficient housing and living conditions are invariably
associated with higher mortality and morbidity rates;
(e) Accessibility. Adequate housing must be accessible to those entitled
to it. Disadvantaged groups must be accorded full and sustainable access to
adequate housing resources. Thus, such disadvantaged groups as the elderly,
children, the physically disabled, the terminally ill, HIV-positive
individuals, persons with persistent medical problems, the mentally ill,
victims of natural disasters, people living in disaster-prone areas and other
groups should be ensured some degree of priority consideration in the housing
sphere. Both housing law and policy should take fully into account the special
housing needs of these groups. Within many States parties increasing access to
land by landless or impoverished segments of the society should constitute a
central policy goal. Discernible governmental obligations need to be developed
aiming to substantiate the right of all to a secure place to live in peace and
dignity, including access to land as an entitlement;
(f) Location. Adequate housing must be in a location which allows access
to employment options, health-care services, schools, child-care centres and
other social facilities. This is true both in large cities and in rural areas
where the temporal and financial costs of getting to and from the place of work
can place excessive demands upon the budgets of poor households. Similarly,
housing should not be built on polluted sites nor in immediate proximity to
pollution sources that threaten the right to health of the inhabitants;
(g) Cultural adequacy. The way housing is constructed, the building
materials used and the policies supporting these must appropriately enable the
expression of cultural identity and diversity of housing. Activities geared
towards development or modernization in the housing sphere should ensure that
the cultural dimensions of housing are not sacrificed, and that, inter alia,
modern technological facilities, as appropriate are also ensured.
9. As noted above, the right to adequate housing cannot be viewed in isolation
from other human rights contained in the two International Covenants and other
applicable international instruments. Reference has already been made in this
regard to the concept of human dignity and the principle of non-discrimination.
In addition, the full enjoyment of other rights - such as the right to freedom
of expression, the right to freedom of association (such as for tenants and
other community-based groups), the right to freedom of residence and the right
to participate in public decision-making - is indispensable if the right to
adequate housing is to be realized and maintained by all groups in society.
Similarly, the right not to be subjected to arbitrary or unlawful interference
with one's privacy, family, home or correspondence constitutes a very important
dimension in defining the right to adequate housing.
10. Regardless of the state of development of any country, there are certain
steps which must be taken immediately. As recognized in the Global Strategy for
Shelter and in other international analyses, many of the measures required to
promote the right to housing would only require the abstention by the
Government from certain practices and a commitment to facilitating
"self-help" by affected groups. To the extent that any such steps are
considered to be beyond the maximum resources available to a State party, it is
appropriate that a request be made as soon as possible for international
cooperation in accordance with articles 11 (1), 22 and 23 of the Covenant, and
that the Committee be informed thereof.
11. States parties must give due priority to those social groups living in
unfavourable conditions by giving them particular consideration. Policies and
legislation should correspondingly not be designed to benefit already
advantaged social groups at the expense of others. The Committee is aware that
external factors can affect the right to a continuous improvement of living
conditions, and that in many States parties overall living conditions declined
during the 1980s. However, as noted by the Committee in its General Comment 2
(1990) (E/1990/23, annex III), despite externally caused problems, the
obligations under the Covenant continue to apply and are perhaps even more
pertinent during times of economic contraction. It would thus appear to the
Committee that a general decline in living and housing conditions, directly
attributable to policy and legislative decisions by States parties, and in the
absence of accompanying compensatory measures, would be inconsistent with the
obligations under the Covenant.
12. While the most appropriate means of achieving the full realization of the
right to adequate housing will inevitably vary significantly from one State
party to another, the Covenant clearly requires that each State party take
whatever steps are necessary for that purpose. This will almost invariably
require the adoption of a national housing strategy which, as stated in
paragraph 32 of the Global Strategy for Shelter, "defines the objectives
for the development of shelter conditions, identifies the resources available
to meet these goals and the most cost-effective way of using them and sets out
the responsibilities and time-frame for the implementation of the necessary
measures". Both for reasons of relevance and effectiveness, as well as in
order to ensure respect for other human rights, such a strategy should reflect
extensive genuine consultation with, and participation by, all of those
affected, including the homeless, the inadequately housed and their
representatives. Furthermore, steps should be taken to ensure coordination
between ministries and regional and local authorities in order to reconcile
related policies (economics, agriculture, environment, energy, etc.) with the
obligations under article 11 of the Covenant.
13. Effective monitoring of the situation with respect to housing is another
obligation of immediate effect. For a State party to satisfy its obligations
under article 11 (1) it must demonstrate, inter alia, that it has taken
whatever steps are necessary, either alone or on the basis of international
cooperation, to ascertain the full extent of homelessness and inadequate housing
within its jurisdiction. In this regard, the revised general guidelines
regarding the form and contents of reports adopted by the Committee
(E/C.12/1991/1) emphasize the need to "provide detailed information about
those groups within ... society that are vulnerable and disadvantaged with
regard to housing". They include, in particular, homeless persons and
families, those inadequately housed and without ready access to basic
amenities, those living in "illegal" settlements, those subject to
forced evictions and low-income groups.
14. Measures designed to satisfy a State party's obligations in respect of the
right to adequate housing may reflect whatever mix of public and private sector
measures considered appropriate. While in some States public financing of
housing might most usefully be spent on direct construction of new housing, in
most cases, experience has shown the inability of Governments to fully satisfy
housing deficits with publicly built housing. The promotion by States parties
of "enabling strategies", combined with a full commitment to
obligations under the right to adequate housing, should thus be encouraged. In
essence, the obligation is to demonstrate that, in aggregate, the measures
being taken are sufficient to realize the right for every individual in the
shortest possible time in accordance with the maximum of available resources.
15. Many of the measures that will be required will involve resource
allocations and policy initiatives of a general kind. Nevertheless, the role of
formal legislative and administrative measures should not be underestimated in
this context. The Global Strategy for Shelter (paras. 66-67) has drawn
attention to the types of measures that might be taken in this regard and to
their importance.
16. In some States, the right to adequate housing is constitutionally
entrenched. In such cases the Committee is particularly interested in learning
of the legal and practical significance of such an approach. Details of
specific cases and of other ways in which entrenchment has proved helpful
should thus be provided.
17. The Committee views many component elements of the right to adequate
housing as being at least consistent with the provision of domestic legal
remedies. Depending on the legal system, such areas might include, but are not
limited to: (a) legal appeals aimed at preventing planned evictions or
demolitions through the issuance of court-ordered injunctions; (b) legal
procedures seeking compensation following an illegal eviction; (c)
complaints against illegal actions carried out or supported by landlords
(whether public or private) in relation to rent levels, dwelling maintenance,
and racial or other forms of discrimination; (d) allegations of any form
of discrimination in the allocation and availability of access to housing; and
(e) complaints against landlords concerning unhealthy or inadequate
housing conditions. In some legal systems it would also be appropriate to
explore the possibility of facilitating class action suits in situations
involving significantly increased levels of homelessness.
18. In this regard, the Committee considers that instances of forced eviction
are prima facie incompatible with the requirements of the Covenant and
can only be justified in the most exceptional circumstances, and in accordance
with the relevant principles of international law.
19. Finally, article 11 (1) concludes with the obligation of States parties to
recognize "the essential importance of international cooperation based on
free consent". Traditionally, less than 5 per cent of all international
assistance has been directed towards housing or human settlements, and often
the manner by which such funding is provided does little to address the housing
needs of disadvantaged groups. States parties, both recipients and providers,
should ensure that a substantial proportion of financing is devoted to creating
conditions leading to a higher number of persons being adequately housed.
International financial institutions promoting measures of structural
adjustment should ensure that such measures do not compromise the enjoyment of
the right to adequate housing. States parties should, when contemplating
international financial cooperation, seek to indicate areas relevant to the
right to adequate housing where external financing would have the most effect.
Such requests should take full account of the needs and views of the affected
groups.
Persons with disabilities : .
09/12/94. CESCR General comment 5. (General Comments)
Persons with disabilities
(Eleventh
session, 1994)
1. The
central importance of the International Covenant on Economic, Social and
Cultural Rights in relation to the human rights of persons with disabilities
has frequently been underlined by the international community. Thus a 1992
review by the Secretary-General of the implementation of the World Programme of
Action concerning Disabled Persons and the United Nations Decade of Disabled
Persons concluded that "disability is closely linked to economic and
social factors" and that "conditions of living in large parts of the
world are so desperate that the provision of basic needs for all - food, water,
shelter, health protection and education - must form the cornerstone of
national programmes". Even in countries which have a relatively high
standard of living, persons with disabilities are very often denied the
opportunity to enjoy the full range of economic, social and cultural rights
recognized in the Covenant.
2. The
Committee on Economic, Social and Cultural Rights, and the working group which
preceded it, have been explicitly called upon by both the General Assembly and
the Commission on Human Rights to monitor the compliance of States parties to
the Covenant with their obligation to ensure the full enjoyment of the relevant
rights by persons with disabilities. The Committee's experience to date,
however, indicates that States parties have devoted very little attention to
this issue in their reports. This appears to be consistent with the
Secretary-General's conclusion that "most Governments still lack decisive
concerted measures that would effectively improve the situation" of
persons with disabilities. It is therefore appropriate to review, and
emphasize, some of the ways in which issues concerning persons with
disabilities arise in connection with the obligations contained in the
Covenant.
3. There
is still no internationally accepted definition of the term
"disability". For present purposes, however, it is sufficient to rely
on the approach adopted in the Standard Rules of 1993, which state:
"The term 'disability' summarizes a great number of different functional limitations occurring in any population ... People may be disabled by physical, intellectual or sensory impairment, medical conditions or mental illness. Such impairments, conditions or illnesses may be permanent or transitory in nature".
4. In
accordance with the approach adopted in the Standard Rules, this General
Comment uses the term "persons with disabilities" rather than the
older term "disabled persons". It has been suggested that the latter
term might be misinterpreted to imply that the ability of the individual to
function as a person has been disabled.
5. The
Covenant does not refer explicitly to persons with disabilities. Nevertheless,
the Universal Declaration of Human Rights recognizes that all human beings are
born free and equal in dignity and rights and, since the Covenant's provisions
apply fully to all members of society, persons with disabilities are clearly
entitled to the full range of rights recognized in the Covenant. In addition,
in so far as special treatment is necessary, States parties are required to
take appropriate measures, to the maximum extent of their available resources,
to enable such persons to seek to overcome any disadvantages, in terms of the
enjoyment of the rights specified in the Covenant, flowing from their
disability. Moreover, the requirement contained in article 2 (2) of the
Covenant that the rights "enunciated ... will be exercised without
discrimination of any kind" based on certain specified grounds "or
other status" clearly applies to discrimination on the grounds of
disability.
6. The
absence of an explicit, disability-related provision in the Covenant can be
attributed to the lack of awareness of the importance of addressing this issue
explicitly, rather than only by implication, at the time of the drafting of the
Covenant over a quarter of a century ago. More recent international human
rights instruments have, however, addressed the issue specifically. They
include the Convention on the Rights of the Child (art. 23); the African
Charter on Human and Peoples' Rights (art. 18 (4)); and the Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and
Cultural Rights (art. 18). Thus it is now very widely accepted that the human
rights of persons with disabilities must be protected and promoted through
general, as well as specially designed, laws, policies and programmes.
7. In
accordance with this approach, the international community has affirmed its
commitment to ensuring the full range of human rights for persons with
disabilities in the following instruments: (a) the World Programme of Action
concerning Disabled Persons, which provides a policy framework aimed at
promoting "effective measures for prevention of disability, rehabilitation
and the realization of the goals of 'full participation' of [persons with
disabilities] in social life and development, and of 'equality'";
(b) the
Guidelines for the Establishment and Development of National Coordinating Committees
on Disability or Similar Bodies, adopted in 1990; (c) the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care, adopted in 1991;
(d) the Standard Rules on the
Equalization of Opportunities for Persons with Disabilities (hereinafter
referred to as the "Standard Rules"), adopted in 1993, the purpose of
which is to ensure that all persons with disabilities "may exercise the
same rights and obligations as others". The Standard Rules are of major
importance and constitute a particularly valuable reference guide in
identifying more precisely the relevant obligations of States parties under the
Covenant.
I. GENERAL OBLIGATIONS OF STATES PARTIES
8. The
United Nations has estimated that there are more than 500 million persons with
disabilities in the world today. Of that number, 80 per cent live in rural areas
in developing countries. Seventy per cent of the total are estimated to have
either limited or no access to the services they need. The challenge of
improving the situation of persons with disabilities is thus of direct
relevance to every State party to the Covenant. While the means chosen to
promote the full realization of the economic, social and cultural rights of
this group will inevitably differ significantly from one country to another,
there is no country in which a major policy and programme effort is not
required.
9. The
obligation of States parties to the Covenant to promote progressive realization
of the relevant rights to the maximum of their available resources clearly
requires Governments to do much more than merely abstain from taking measures
which might have a negative impact on persons with disabilities. The obligation
in the case of such a vulnerable and disadvantaged group is to take positive
action to reduce structural disadvantages and to give appropriate preferential
treatment to people with disabilities in order to achieve the objectives of
full participation and equality within society for all persons with
disabilities. This almost invariably means that additional resources will need
to be made available for this purpose and that a wide range of specially
tailored measures will be required.
10.
According to a report by the Secretary-General, developments over the past
decade in both developed and developing countries have been especially
unfavourable from the perspective of persons with disabilities:
"... current economic and social deterioration, marked by low-growth rates, high unemployment, reduced public expenditure, current structural adjustment programmes and privatization, have negatively affected programmes and services ... If the present negative trends continue, there is the risk that [persons with disabilities] may increasingly be relegated to the margins of society, dependent on ad hoc support."
As the
Committee has previously observed (General Comment No. 3 (Fifth session, 1990),
para. 12), the duty of States parties to protect the vulnerable members of
their societies assumes greater rather than less importance in times of severe
resource constraints.
11.
Given the increasing commitment of Governments around the world to market-based
policies, it is appropriate in that context to emphasize certain aspects of
States parties' obligations. One is the need to ensure that not only the public
sphere, but also the private sphere, are, within appropriate limits, subject to
regulation to ensure the equitable treatment of persons with disabilities. In a
context in which arrangements for the provision of public services are
increasingly being privatized and in which the free market is being relied on
to an ever greater extent, it is essential that private employers, private
suppliers of goods and services, and other non-public entities be subject to
both non-discrimination and equality norms in relation to persons with
disabilities. In circumstances where such protection does not extend beyond the
public domain, the ability of persons with disabilities to participate in the
mainstream of community activities and to realize their full potential as
active members of society will be severely and often arbitrarily constrained.
This is not to imply that legislative measures will always be the most
effective means of seeking to eliminate discrimination within the private
sphere. Thus, for example, the Standard Rules place particular emphasis on the
need for States to "take action to raise awareness in society about
persons with disabilities, their rights, their needs, their potential and their
contribution".
12. In
the absence of government intervention there will always be instances in which
the operation of the free market will produce unsatisfactory results for
persons with disabilities, either individually or as a group, and in such
circumstances it is incumbent on Governments to step in and take appropriate
measures to temper, complement, compensate for, or override the results produced
by market forces. Similarly, while it is appropriate for Governments to rely on
private, voluntary groups to assist persons with disabilities in various ways,
such arrangements can never absolve Governments from their duty to ensure full
compliance with their obligations under the Covenant. As the World Programme of
Action concerning Disabled Persons states, "the ultimate responsibility
for remedying the conditions that lead to impairment and for dealing with the
consequences of disability rests with Governments". World Programme of
Action concerning Disabled Persons (see note 3 above), para. 3.
II. MEANS OF IMPLEMENTATION
13. The
methods to be used by States parties in seeking to implement their obligations
under the Covenant towards persons with disabilities are essentially the same
as those available in relation to other obligations (see General Comment No. 1
(Third session, 1989)). They include the need to ascertain, through regular
monitoring, the nature and scope of the problems existing within the State; the
need to adopt appropriately tailored policies and programmes to respond to the
requirements thus identified; the need to legislate where necessary and to
eliminate any existing discriminatory legislation; and the need to make
appropriate budgetary provisions or, where necessary, seek international
cooperation and assistance. In the latter respect, international cooperation in
accordance with articles 22 and 23 of the Covenant is likely to be a
particularly important element in enabling some developing countries to fulfil
their obligations under the Covenant.
14. In
addition, it has been consistently acknowledged by the international community
that policy-making and programme implementation in this area should be
undertaken on the basis of close consultation with, and involvement of,
representative groups of the persons concerned. For this reason, the Standard
Rules recommend that everything possible be done to facilitate the
establishment of national coordinating committees, or similar bodies, to serve
as a national focal point on disability matters. In doing so, Governments
should take account of the 1990 Guidelines for the Establishment and
Development of National Coordinating Committees on Disability or Similar
Bodies. 15/
III. THE OBLIGATION TO ELIMINATE DISCRIMINATION
ON THE GROUNDS OF DISABILITY
15. Both
de jure and de facto discrimination against persons with disabilities
have a long history and take various forms. They range from invidious
discrimination, such as the denial of educational opportunities, to more
"subtle" forms of discrimination such as segregation and isolation
achieved through the imposition of physical and social barriers. For the
purposes of the Covenant, "disability-based discrimination" may be
defined as including any distinction, exclusion, restriction or preference, or
denial of reasonable accommodation based on disability which has the effect of
nullifying or impairing the recognition, enjoyment or exercise of economic,
social or cultural rights. Through neglect, ignorance, prejudice and false
assumptions, as well as through exclusion, distinction or separation, persons
with disabilities have very often been prevented from exercising their
economic, social or cultural rights on an equal basis with persons without
disabilities. The effects of disability-based discrimination have been
particularly severe in the fields of education, employment, housing, transport,
cultural life, and access to public places and services.
16.
Despite some progress in terms of legislation over the past decade, the legal
situation of persons with disabilities remains precarious. In order to remedy
past and present discrimination, and to deter future discrimination,
comprehensive anti-discrimination legislation in relation to disability would
seem to be indispensable in virtually all States parties. Such legislation
should not only provide persons with disabilities with judicial remedies as far
as possible and appropriate, but also provide for social-policy programmes
which enable persons with disabilities to live an integrated, self-determined
and independent life.
17.
Anti-discrimination measures should be based on the principle of equal rights
for persons with disabilities and the non-disabled, which, in the words of the
World Programme of Action concerning Disabled Persons, "implies that the
needs of each and every individual are of equal importance, that these needs
must be made the basis for the planning of societies, and that all resources
must be employed in such a way as to ensure, for every individual, equal
opportunity for participation. Disability policies should ensure the access of
[persons with disabilities] to all community services". 17/
18.
Because appropriate measures need to be taken to undo existing discrimination
and to establish equitable opportunities for persons with disabilities, such
actions should not be considered discriminatory in the sense of article 2 (2)
of the International Covenant on Economic, Social and Cultural Rights as long
as they are based on the principle of equality and are employed only to the
extent necessary to achieve that objective.
IV. SPECIFIC PROVISIONS OF THE COVENANT
A. Article 3 - Equal rights for men and women
19.
Persons with disabilities are sometimes treated as genderless human beings. As
a result, the double discrimination suffered by women with disabilities is
often neglected. 18/
Despite frequent calls by the international community for particular emphasis
to be placed upon their situation, very few efforts have been undertaken during
the Decade. The neglect of women with disabilities is mentioned several times
in the report of the Secretary-General on the implementation of the World
Programme of Action. 19/
The Committee therefore urges States parties to address the situation of women
with disabilities, with high priority being given in future to the
implementation of economic, social and cultural rights-related programmes.
B. Articles 6-8 - Rights relating to work
20. The
field of employment is one in which disability-based discrimination has been
prominent and persistent. In most countries the unemployment rate among persons
with disabilities is two to three times higher than the unemployment rate for
persons without disabilities. Where persons with disabilities are employed,
they are mostly engaged in low-paid jobs with little social and legal security
and are often segregated from the mainstream of the labour market. The integration
of persons with disabilities into the regular labour market should be actively
supported by States.
21. The
"right of everyone to the opportunity to gain his living by work which he
freely chooses or accepts" (art. 6 (1)) is not realized where the only
real opportunity open to disabled workers is to work in so-called
"sheltered" facilities under substandard conditions. Arrangements
whereby persons with a certain category of disability are effectively confined
to certain occupations or to the production of certain goods may violate this
right. Similarly, in the light of principle 13 (3) of the Principles for the
Protection of Persons with Mental Illness and for the Improvement of Mental
Health Care, 20/
"therapeutical treatment" in institutions which amounts to forced
labour is also incompatible with the Covenant. In this regard, the prohibition
on forced labour contained in the International Covenant on Civil and Political
Rights is also of potential relevance.
22.
According to the Standard Rules, persons with disabilities, whether in rural or
urban areas, must have equal opportunities for productive and gainful
employment in the labour market 21/
. For this to happen it is particularly important that artificial barriers to
integration in general, and to employment in particular, be removed. As the
International Labour Organisation has noted, it is very often the physical
barriers that society has erected in areas such as transport, housing and the
workplace which are then cited as the reason why persons with disabilities
cannot be employed 22/
. For example, as long as workplaces are designed and built in ways that make
them inaccessible to wheelchairs, employers will be able to "justify"
their failure to employ wheelchair users. Governments should also develop
policies which promote and regulate flexible and alternative work arrangements
that reasonably accommodate the needs of disabled workers.
23.
Similarly, the failure of Governments to ensure that modes of transportation
are accessible to persons with disabilities greatly reduces the chances of such
persons finding suitable, integrated jobs, taking advantage of educational and
vocational training, or commuting to facilities of all types. Indeed, the
provision of access to appropriate and, where necessary, specially tailored
forms of transportation is crucial to the realization by persons with
disabilities of virtually all the rights recognized in the Covenant.
24. The
"technical and vocational guidance and training programmes" required
under article 6 (2) of the Covenant should reflect the needs of all persons
with disabilities, take place in integrated settings, and be planned and
implemented with the full involvement of representatives of persons with
disabilities.
25. The
right to "the enjoyment of just and favourable conditions of work"
(art. 7) applies to all disabled workers, whether they work in sheltered
facilities or in the open labour market. Disabled workers may not be
discriminated against with respect to wages or other conditions if their work
is equal to that of non-disabled workers. States parties have a responsibility
to ensure that disability is not used as an excuse for creating low standards
of labour protection or for paying below minimum wages.
26.
Trade union-related rights (art. 8) apply equally to workers with disabilities
and regardless of whether they work in special work facilities or in the open
labour market. In addition, article 8, read in conjunction with other rights
such as the right to freedom of association, serves to emphasize the importance
of the right of persons with disabilities to form their own organizations. If
these organizations are to be effective in "the promotion and protection
of [the] economic and social interests" (art. 8 (1) (a)) of such persons,
they should be consulted regularly by government bodies and others in relation
to all matters affecting them; it may also be necessary that they be supported
financially and otherwise so as to ensure their viability.
27. The
International Labour Organization has developed valuable and comprehensive
instruments with respect to the work-related rights of persons with
disabilities, including in particular Convention No. 159 (1983) concerning
vocational rehabilitation and employment of persons with disabilities.
23/ The Committee encourages States parties to the Covenant to
consider ratifying that Convention.
C. Article 9 - Social security
28.
Social security and income-maintenance schemes are of particular importance for
persons with disabilities. As stated in the Standard Rules, "States should
ensure the provision of adequate income support to persons with disabilities
who, owing to disability or disability-related factors, have temporarily lost
or received a reduction in their income or have been denied employment
opportunities". 24/
Such support should reflect the special needs for assistance and other expenses
often associated with disability. In addition, as far as possible, the support
provided should also cover individuals (who are overwhelmingly female) who
undertake the care of a person with disabilities. Such persons, including
members of the families of persons with disabilities, are often in urgent need
of financial support because of their assistance role. 25/
29.
Institutionalization of persons with disabilities, unless rendered necessary
for other reasons, cannot be regarded as an adequate substitute for the social
security and income-support rights of such persons.
D. Article 10 - Protection of the family and
of mothers and children
30. In
the case of persons with disabilities, the Covenant's requirement that
"protection and assistance" be rendered to the family means that
everything possible should be done to enable such persons, when they so wish,
to live with their families. Article 10 also implies, subject to the general
principles of international human rights law, the right of persons with
disabilities to marry and have their own family. These rights are frequently
ignored or denied, especially in the case of persons with mental disabilities. 26/
In this and other contexts, the term "family" should be interpreted
broadly and in accordance with appropriate local usage. States parties should
ensure that laws and social policies and practices do not impede the
realization of these rights. Persons with disabilities should have access to
necessary counselling services in order to fulfil their rights and duties
within the family. 27/
31.
Women with disabilities also have the right to protection and support in
relation to motherhood and pregnancy. As the Standard Rules state,
"persons with disabilities must not be denied the opportunity to
experience their sexuality, have sexual relationships and experience
parenthood". 28/
The needs and desires in question should be recognized and addressed in both
the recreational and the procreational contexts. These rights are commonly
denied to both men and women with disabilities worldwide. 29/
Both the sterilization of, and the performance of an abortion on, a woman with
disabilities without her prior informed consent are serious violations of
article 10 (2).
32.
Children with disabilities are especially vulnerable to exploitation, abuse and
neglect and are, in accordance with article 10 (3) of the Covenant (reinforced
by the corresponding provisions of the Convention on the Rights of the Child),
entitled to special protection.
E. Article 11 - The right to an adequate standard of living
33. In
addition to the need to ensure that persons with disabilities have access to
adequate food, accessible housing and other basic material needs, it is also
necessary to ensure that "support services, including assistive
devices" are available "for persons with disabilities, to assist them
to increase their level of independence in their daily living and to exercise
their rights".
30/ The right to adequate clothing also assumes a special
significance in the context of persons with disabilities who have particular
clothing needs, so as to enable them to function fully and effectively in
society. Wherever possible, appropriate personal assistance should also be
provided in this connection. Such assistance should be undertaken in a manner
and spirit which fully respect the human rights of the person(s) concerned.
Similarly, as already noted by the Committee in paragraph 8 of General Comment
No. 4 (Sixth session, 1991), the right to adequate housing includes the right
to accessible housing for persons with disabilities.
F. Article 12 - The right to physical and mental health
34. According to the Standard Rules, "States should ensure that persons
with disabilities, particularly infants and children, are provided with the
same level of medical care within the same system as other members of
society". 31/
The right to physical and mental health also implies the right to have access
to, and to benefit from, those medical and social services - including
orthopaedic devices - which enable persons with disabilities to become
independent, prevent further disabilities and support their social integration.
32/ Similarly, such persons should be provided with rehabilitation
services which would enable them "to reach and sustain their optimum level
of independence and functioning". 33/
All such services should be provided in such a way that the persons concerned
are able to maintain full respect for their rights and dignity.
G. Articles 13 and 14 - The right to education
35.
School programmes in many countries today recognize that persons with
disabilities can best be educated within the general education system. 34/
Thus the Standard Rules provide that "States should recognize the
principle of equal primary, secondary and tertiary educational opportunities
for children, youth and adults with disabilities, in integrated settings".
35/
In order to implement such an approach, States should ensure that teachers are
trained to educate children with disabilities within regular schools and that
the necessary equipment and support are available to bring persons with
disabilities up to the same level of education as their non-disabled peers. In
the case of deaf children, for example, sign language should be recognized as a
separate language to which the children should have access and whose importance
should be acknowledged in their overall social environment.
H. Article 15 - The right to take part in cultural life
and enjoy the benefits of scientific progress
36. The
Standard Rules provide that "States should ensure that persons with
disabilities have the opportunity to utilize their creative, artistic and
intellectual potential, not only for their own benefit, but also for the
enrichment of their community, be they in urban or rural areas. ... States
should promote the accessibility to and availability of places for cultural
performances and services ... ". 36/
The same applies to places for recreation, sports and tourism.
37. The
right to full participation in cultural and recreational life for persons with
disabilities further requires that communication barriers be eliminated to the
greatest extent possible. Useful measures in this regard might include
"the use of talking books, papers written in simple language and with
clear format and colours for persons with mental disability, [and] adapted
television and theatre for deaf persons". 37/
38. In
order to facilitate the equal participation in cultural life of persons with
disabilities, Governments should inform and educate the general public about
disability. In particular, measures must be taken to dispel prejudices or
superstitious beliefs against persons with disabilities, for example those that
view epilepsy as a form of spirit possession or a child with disabilities as a form
of punishment visited upon the family. Similarly, the general public should be
educated to accept that persons with disabilities have as much right as any
other person to make use of restaurants, hotels, recreation centres and
cultural venues.
The economic, social and cultural
rights of older persons : . 08/12/95. CESCR General comment 6. (General Comments)
The economic, social and cultural rights of
older persons
(Thirteenth
session, 1995)
1. Introduction
1. The
world population is ageing at a steady, quite spectacular rate. The total
number of persons aged 60 and above rose from 200 million in 1950 to 400
million in 1982 and is projected to reach 600 million in the year 2001 and 1.2
billion by the year 2025, at which time over 70 per cent of them will be living
in what are today's developing countries. The number of people aged 80 and
above has grown and continues to grow even more dramatically, going from 13
million in 1950 to over 50 million today and projected to increase to 137
million in 2025. This is the fastest growing population group in the world,
projected to increase by a factor of 10 between 1950 and 2025, compared with a
factor of six for the group aged 60 and above and a factor of little more than
three for the total population.
1/
2. These
figures are illustrations of a quiet revolution, but one which has far-reaching
and unpredictable consequences and which is now affecting the social and
economic structures of societies both at the world level and at the country
level, and will affect them even more in future.
3. Most
of the States parties to the Covenant, and the industrialized countries in
particular, are faced with the task of adapting their social and economic
policies to the ageing of their populations, especially as regards social
security. In the developing countries, the absence or deficiencies of social
security coverage are being aggravated by the emigration of the younger members
of the population and the consequent weakening of the traditional role of the
family, the main support of older people.
2. Internationally
endorsed policies in relation to older persons
4. In
1982 the World Assembly on Ageing adopted the Vienna International Plan of
Action on Ageing. This important document was endorsed by the General Assembly
and is a very useful guide, for it details the measures that should be taken by
Member States to safeguard the rights of older persons within the context of
the rights proclaimed by the International Covenants on Human Rights. It
contains 62 recommendations, many of which are of direct relevance to the
Covenant. 2/
5. In
1991 the General Assembly adopted the United Nations Principles for Older
Persons which, because of their programmatic nature, is also an important
document in the present context. 3/
It is divided into five sections which correlate closely to the
rights recognized in the Covenant. "Independence" includes
access to adequate food, water, shelter, clothing and health care. To these
basic rights are added the opportunity to remunerated work and access to
education and training. By "participation" is meant that older
persons should participate actively in the formulation and implementation of
policies that affect their well-being and share their knowledge and skills with
younger generations, and should be able to form movements and associations. The
section headed "care" proclaims that older persons should
benefit from family care, health care and be able to enjoy human rights and
fundamental freedoms when residing in a shelter, care or treatment facility.
With regard to "self-fulfilment", the Principles that older
persons should pursue opportunities for the full development of their potential
through access to the educational, cultural, spiritual and recreational
resources of their societies. Lastly, the section entitled "dignity"
states that older persons should be able to live in dignity and security and be
free of exploitation and physical or mental abuse, should be treated fairly,
regardless of age, gender, racial or ethnic background, disability, financial
situation or any other status, and be valued independently of their economic
contribution.
6. In
1992, the General Assembly adopted eight global targets on ageing for the year
2001 and a brief guide for setting national targets. In a number of important
respects, these global targets serve to reinforce the obligations of States
parties to the Covenant. 4/
7. Also
in 1992, and in commemoration of the tenth anniversary of the adoption of the
Vienna International Plan of Action by the Conference on Ageing, the General
Assembly adopted the Proclamation on Ageing in which it urged support of
national initiatives on ageing so that older women are given adequate support
for their largely unrecognized contributions to society and older men are
encouraged to develop social, cultural and emotional capacities which they may
have been prevented from developing during breadwinning years; families are
supported in providing care and all family members encouraged to cooperate in
caregiving; and that international cooperation is expanded in the context of
the strategies for reaching the global targets on ageing for the year 2001. It
also proclaimed the year 1999 as the International Year of Older Persons in
recognition of humanity's demographic "coming of age".
5/
8. The
United Nations specialized agencies, especially the International Labour
Organization, have also given attention to the problem of ageing in their
respective fields of competence.
3. The
rights of older persons in relation to the International Covenant on Economic,
Social and Cultural Rights
9. The terminology used to describe older persons varies considerably, even in international documents. It includes: "older persons", "the aged", "the elderly", "the third age", "the ageing", and, to denote persons more than 80 years of age, "the fourth age". The Committee opted for "older persons" (in French, personnes âgées; in Spanish, personas mayores), the term employed in General Assembly resolutions 47/5 and 48/98. According to the practice in the United Nations statistical services, these terms cover persons aged 60 and above (Eurostat, the statistical service of the European Union, considers "older persons" to mean persons aged 65 or above, since 65 is the most common age of retirement and the trend is towards later retirement still).
10. The International Covenant on Economic, Social and Cultural Rights does not contain any explicit reference to the rights of older persons, although article 9 dealing with "the right of everyone to social security, including social insurance", implicitly recognizes the right to old-age benefits. Nevertheless, in view of the fact that the Covenant's provisions apply fully to all members of society, it is clear that older persons are entitled to enjoy the full range of rights recognized in the Covenant. This approach is also fully reflected in the Vienna International Plan of Action on Ageing. Moreover, in so far as respect for the rights of older persons requires special measures to be taken, States parties are required by the Covenant to do so to the maximum of their available resources.
11. Another important issue is whether discrimination on the basis of age is Prohibited by the Covenant. Neither the Covenant nor the Universal Declaration of Human Rights refers explicitly to age as one of the prohibited grounds. Rather than being seen as an intentional exclusion, this omission is probably best explained by the fact that, when these instruments were adopted, the problem of demographic ageing was not as evident or as pressing as it is now.
12. This
is not determinative of the matter, however, since the prohibition of
discrimination on the grounds of "other status" could be interpreted
as applying to age. The Committee notes that while it may not yet be possible
to conclude that discrimination on the grounds of age is comprehensively
prohibited by the Covenant, the range of matters in relation to which such
discrimination can be accepted is very limited. Moreover, it must be emphasized
that the unacceptableness of discrimination against older persons is underlined
in many international policy documents and is confirmed in the legislation of
the vast majority of States. In the few areas in which discrimination continues
to be tolerated, such as in relation to mandatory retirement ages or access to
tertiary education, there is a clear trend towards the elimination of such
barriers. The Committee is of the view that States parties should seek to
expedite this trend to the greatest extent possible.
13.
Accordingly, the Committee on Economic, Social and Cultural Rights is of the
view that States parties to the Covenant are obligated to pay particular
attention to promoting and protecting the economic, social and cultural rights
of older persons. The Committee's own role in this regard is rendered all the
more important by the fact that, unlike the case of other population groups
such as women and children, no comprehensive international convention yet
exists in relation to the rights of older persons and no binding supervisory
arrangements attach to the various sets of United Nations principles in this
area.
14. By
the end of its thirteenth session, the Committee and, before that, its
predecessor, the Sessional Working Group of Governmental Experts, had examined
144 initial reports, 70 second periodic reports and 20 initial and periodic
global reports on articles 1 to 15. This examination made it possible to
identify many of the problems that may be encountered in implementing the
Covenant in a considerable number of States parties that represent all the
regions of the world and have different political, socio-economic and cultural
systems. The reports examined to date have not provided any information in a
systematic way on the situation of older persons with regard to compliance with
the Covenant, apart from information, of varying completeness, on the
implementation of article 9 relating to the right to social security.
15. In
1993, the Committee devoted a day of general discussion to this issue in order
to plan its future activity in this area. Moreover, it has, at recent sessions,
begun to attach substantially more importance to information on the rights of
older persons and its questioning has elicited some very valuable information
in some instances. Nevertheless, the Committee notes that the great majority of
States parties reports continue to make little reference to this important
issue. It therefore wishes to indicate that, in future, it will insist that the
situation of older persons in relation to each of the rights recognized in the
Covenant should be adequately addressed in all reports. The remainder of this
General Comment identifies the specific issues which are relevant in this
regard.
4. General obligations of States parties
16.
Older persons as a group are as heterogeneous and varied as the rest of the
population and their situation depends on a country's economic and social
situation, on demographic, environmental cultural and employment factors and,
at the individual level, on the family situation, the level of education, the
urban or rural environment and the occupation of workers and retirees.
17. Side
by side with older persons who are in good health and whose financial situation
is acceptable, there are many who do not have adequate means of support, even
in developed countries, and who feature prominently among the most vulnerable,
marginal and unprotected groups. In times of recession and of restructuring of
the economy, older persons are particularly at risk. As the Committee has
previously stressed (General Comment No. 3 (1990), para. 12), even in times of
severe resource constraints, States parties have the duty to protect the
vulnerable members of society.
18. The
methods that States parties use to fulfil the obligations they have assumed
under the Covenant in respect of older persons will be basically the same as
those for the fulfilment of other obligations (see General Comment No. 1
(1989)). They include the need to determine the nature and scope of problems
within a State through regular monitoring, the need to adopt properly designed
policies and programmes to meet requirements, the need to enact legislation
when necessary and to eliminate any discriminatory legislation and the need to
ensure the relevant budget support or, as appropriate, to request international
cooperation. In the latter connection, international cooperation in accordance
with articles 22 and 23 of the Covenant may be a particularly important way of
enabling some developing countries to fulfil their obligations under the
Covenant.
19. In
this context, attention may be drawn to Global target No. 1, adopted by the
General Assembly in 1992, which calls for the establishment of national support
infrastructures to promote policies and programmes on ageing in national and
international development plans and programmes. In this regard, the Committee
notes that one of the United Nations Principles for Older Persons which
Governments were encouraged to incorporate into their national programmes is
that older persons should be able to form movements or associations of older
persons.
5. Specific
provisions of the Covenant
Article 3: Equal rights of men and women
20. In
accordance with article 3 of the Covenant, by which States parties undertake
"to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights", the Committee considers that States
parties should pay particular attention to older women who, because they have
spent all or part of their lives caring for their families without engaging in
a remunerated activity entitling them to an old-age pension, and who are also
not entitled to a widow's pension, are often in critical situations.
21. To
deal with such situations and comply fully with article 9 of the Covenant and
paragraph 2 (h) of the Proclamation on Ageing, States parties should institute
non-contributory old-age benefits or other assistance for all persons,
regardless of their sex, who find themselves without resources on attaining an
age specified in national legislation. Given their greater life expectancy and
the fact that it is more often they who have no contributory pensions, women
would be the principal beneficiaries.
Articles 6 to 8: Rights relating to work
22.
Article 6 of the Covenant requires States parties to take appropriate steps to
safeguard the right of everyone to the opportunity to gain a living by work
which is freely chosen or accepted. In this regard, the Committee, bearing in
mind that older workers who have not reached retirement age often encounter
problems in finding and keeping jobs, stresses the need for measures to prevent
discrimination on grounds of age in employment and occupation. 6/
23. The
right "to the enjoyment of just and favourable conditions of work"
(Covenant, art. 7) is of special importance for ensuring that older workers
enjoy safe working conditions until their retirement. In particular, it is desirable,
to employ older workers in circumstances in which the best use can be made of
their experience and know-how.
7/
24. In
the years preceding retirement, retirement preparation programmes should be
implemented, with the participation of representative organizations of
employers and workers and other bodies concerned, to prepare older workers to
cope with their new situation. Such programmes should, in particular, provide
older workers with information about: their rights and obligations as
pensioners; the opportunities and conditions for continuing an occupational
activity or undertaking voluntary work; means of combating detrimental effects
of ageing; facilities for adult education and cultural activities, and the use
of leisure time. 8/
25. The
rights protected by article 8 of the Covenant, namely, trade union rights,
including after retirement age, must be applied to older workers.
Article 9: Right to social security
26.
Article 9 of the Covenant provides generally that States parties
"recognize the right of everyone to social security", without
specifying the type or level of protection to be guaranteed. However, the term
"social security" implicitly covers all the risks involved in the
loss of means of subsistence for reasons beyond a person's control.
27. In
accordance with article 9 of the Covenant and the provisions concerning
implementation of the ILO social security conventions - Convention No. 102
concerning Social Security (Minimum Standards) (1952) and Convention No. 128
concerning Invalidity, Old-Age and Survivors' Benefits (1967) - States parties
must take appropriate measures to establish general regimes of compulsory
old-age insurance, starting at a particular age, to be prescribed by national
law.
28. In
keeping with the recommendations contained in the two ILO Conventions mentioned
above and Recommendation No. 162, the Committee invites States parties to
establish retirement age so that it is flexible, depending on the occupations
performed and the working ability of elderly persons, with due regard to
demographic, economic and social factors.
29. In
order to give effect to the provisions of article 9 of the Covenant, States
parties must guarantee the provision of survivors' and orphans' benefits on the
death of the breadwinner who was covered by social security or receiving a
pension.
30.
Furthermore, as already observed in paragraphs 20 and 21, in order fully to
implement the provisions of article 9 of the Covenant, States parties should,
within the limits of available resources, provide non-contributory old-age
benefits and other assistance for all older persons, who, when reaching the age
prescribed in national legislation, have not completed a qualifying period of
contribution and are not entitled to an old-age pension or other social
security benefit or assistance and have no other source of income.
Article 10: Protection of the family
31. On
the basis of article 10, paragraph 1, of the Covenant and recommendations 25
and 29 of the Vienna International Plan of Action on Ageing, States parties
should make all the necessary efforts to support, protect and strengthen the
family and help it, in accordance with each society's system of cultural
values, to respond to the needs of its dependent ageing members. Recommendation
29 encourages Governments and non-governmental organizations to establish
social services to support the whole family when there are elderly people at
home and to implement measures especially for low-income families who wish to
keep elderly people at home. This assistance should also be provided for
persons living alone or elderly couples wishing to remain at home.
Article 11: Right to an adequate standard of living
32. Of
the United Nations Principles for Older Persons, principle 1, which stands at
the beginning of the section relating to the independence of older persons,
provides that: "Older persons should have access to adequate food, water,
shelter, clothing and health care through the provision of income, family and
community support and self-help". The Committee attaches great importance
to this principle, which demands for older persons the rights contained in
article 11 of the Covenant.
33.
Recommendations 19 to 24 of the Vienna International Plan of Action on Ageing
emphasize that housing for the elderly must be viewed as more than mere shelter
and that, in addition to the physical, it has psychological and social
significance which should be taken into account. Accordingly, national policies
should help elderly persons to continue to live in their own homes as long as
possible, through the restoration, development and improvement of homes and
their adaptation to the ability of those persons to gain access to and use them
(recommendation 19). Recommendation 20 stresses the need for urban rebuilding
and development planning and law to pay special attention to the problems of
the ageing, assisting in securing their social integration, while
recommendation 22 draws attention to the need to take account of the functional
capacity of the elderly in order to provide them with a better living
environment and facilitate mobility and communication through the provision of
adequate means of transport.
Article
12: Right to physical and mental health
34. With
a view to the realization of the right of elderly persons to the enjoyment of a
satisfactory standard of physical and mental health, in accordance with article
12, paragraph 1, of the Covenant, States parties should take account of the
content of recommendations 1 to 17 of the Vienna International Plan of Action
on Ageing, which focus entirely on providing guidelines on health policy to
preserve the health of the elderly and take a comprehensive view, ranging from
prevention and rehabilitation to the care of the terminally ill.
35.
Clearly, the growing number of chronic, degenerative diseases and the high
hospitalization costs they involve cannot be dealt with only by curative
treatment. In this regard, States parties should bear in mind that maintaining
health into old age requires investments during the entire life span, basically
through the adoption of healthy lifestyles (food, exercise, elimination of
tobacco and alcohol, etc.). Prevention, through regular checks suited to the
needs of the elderly, plays a decisive role, as does rehabilitation, by
maintaining the functional capacities of elderly persons, with a resulting
decrease in the cost of investments in health care and social services.
Articles 13 to 15: Right to education and culture
36.
Article 13, paragraph 1, of the Covenant recognizes the right of everyone to
education. In the case of the elderly, this right must be approached from two
different and complementary points of view: (a) the right of elderly persons to
benefit from educational programmes; and (b) making the know-how and experience
of elderly persons available to younger generations.
37. With
regard to the former, States parties should take account of: (a) the
recommendations in principle 16 of the United Nations Principles for Older
Persons to the effect that older persons should have access to suitable
education programmes and training and should, therefore, on the basis of their
preparation, abilities and motivation, be given access to the various levels of
education through the adoption of appropriate measures regarding literacy
training, life-long education, access to university, etc.; and (b)
recommendation 47 of the Vienna International Plan of Action on Ageing, which,
in accordance with the concept of life-long education promulgated by the United
Nations Educational, Scientific and Cultural Organization (UNESCO), recommends
informal, community-based and recreation-oriented programmes for the elderly in
order to develop their sense of self-reliance and the community's sense of responsibility.
Such programmes should enjoy the support of national Governments and
international organizations.
38. With
regard to the use of the know-how and experience of older persons, as referred
to in the part of the recommendations of the Vienna International Plan of
Action on Ageing dealing with education (paras. 74-76), attention is drawn to
the important role that elderly and old persons still play in most societies as
the transmitters of information, knowledge, traditions and spiritual values and
to the fact that this important tradition should not be lost. Consequently, the
Committee attaches particular importance to the message contained in
recommendation 44 of the Plan: "Educational programmes featuring the
elderly as the teachers and transmitters of knowledge, culture and spiritual
values should be developed".
39. In
article 15, paragraphs 1 (a) and (b), of the Covenant, States parties recognize
the right of everyone to take part in cultural life and to enjoy the benefits
of scientific progress and its applications. In this respect, the Committee
urges States parties to take account of the recommendations contained in the
United Nations Principles for Older Persons, and in particular of principle 7:
"Older persons should remain integrated in society, participate actively
in the formulation and implementation of policies that directly affect their
well-being and share their knowledge and skills with younger generations";
and principle 16: "Older persons should have access to the educational,
cultural, spiritual and recreational resources of society".
40.
Similarly, recommendation 48 of the Vienna International Plan of Action on
Ageing encourages Governments and international organizations to support
programmes aimed at providing the elderly with easier physical access to
cultural institutions (museums, theatres, concert halls, cinemas, etc.).
41.
Recommendation 50 stresses the need for Governments, non-governmental
organizations and the ageing themselves to make efforts to overcome negative
stereotyped images of older persons as suffering from physical and
psychological disabilities, incapable of functioning independently and having
neither role nor status in society. These efforts, in which the media and
educational institutions should also take part, are essential for achieving a
society that champions the full integration of the elderly.
42. With
regard to the right to enjoy the benefits of scientific progress and its
applications, States parties should take account of recommendations 60, 61 and
62 of the Vienna International Plan of Action and make efforts to promote
research on the biological, mental and social aspects of ageing and ways of
maintaining functional capacities and preventing and delaying the start of
chronic illnesses and disabilities. In this connection, it is recommended that
States, intergovernmental organizations and non-governmental organizations
should establish institutions specializing in the teaching of gerontology,
geriatrics and geriatric psychology in countries where such institutions do not
exist.
The right to adequate housing
(Art.11.1): forced evictions : . 20/05/97. CESCR General comment 7. (General Comments)
The right to adequate housing (art. 11.1 of
the Covenant):
forced evictions
(Sixteenth
session, 1997)
1. In its General Comment No. 4 (1991), the Committee observed that all persons
should possess a degree of security of tenure which guarantees legal protection
against forced eviction, harassment and other threats. It concluded that forced
evictions are prima facie incompatible with the requirements of the
Covenant. Having considered a significant number of reports of forced evictions
in recent years, including instances in which it has determined that the
obligations of States parties were being violated, the Committee is now in a
position to seek to provide further clarification as to the implications of
such practices in terms of the obligations contained in the Covenant.
2. The
international community has long recognized that the issue of forced evictions
is a serious one. In 1976, the United Nations Conference on Human Settlements
noted that special attention should be paid to "undertaking major
clearance operations should take place only when conservation and
rehabilitation are not feasible and relocation measures are made". 1/
In 1988, in the Global Strategy for Shelter to the Year 2000, adopted by the
General Assembly in its resolution 43/181, the "fundamental obligation [of
Governments] to protect and improve houses and neighbourhoods, rather than
damage or destroy them" was recognized. 2/
Agenda 21 stated that "people should be protected by law against unfair
eviction from their homes or land". 3/
In the Habitat Agenda Governments committed themselves to "protecting all
people from, and providing legal protection and redress for, forced evictions
that are contrary to the law, taking human rights into consideration; [and]
when evictions are unavoidable, ensuring, as appropriate, that alternative
suitable solutions are provided". 4/
The Commission on Human Rights has also indicated that "forced evictions
are a gross violation of human rights". 5/
However, although these statements are important, they leave open one of the
most critical issues, namely that of determining the circumstances under which
forced evictions are permissible and of spelling out the types of protection
required to ensure respect for the relevant provisions of the Covenant.
3. The
use of the term "forced evictions" is, in some respects, problematic.
This expression seeks to convey a sense of arbitrariness and of illegality. To
many observers, however, the reference to "forced evictions" is a
tautology, while others have criticized the expression "illegal
evictions" on the ground that it assumes that the relevant law provides
adequate protection of the right to housing and conforms with the Covenant,
which is by no means always the case. Similarly, it has been suggested that the
term "unfair evictions" is even more subjective by virtue of its
failure to refer to any legal framework at all. The international community,
especially in the context of the Commission on Human Rights, has opted to refer
to "forced evictions", primarily since all suggested alternatives
also suffer from many such defects. The term "forced evictions" as
used throughout this general comment is defined as the permanent or temporary
removal against their will of individuals, families and/or communities from the
homes and/or land which they occupy, without the provision of, and access to,
appropriate forms of legal or other protection. The prohibition on forced
evictions does not, however, apply to evictions carried out by force in accordance
with the law and in conformity with the provisions of the International
Covenants on Human Rights.
4. The
practice of forced evictions is widespread and affects persons in both
developed and developing countries. Owing to the interrelationship and
interdependency which exist among all human rights, forced evictions frequently
violate other human rights. Thus, while manifestly breaching the rights
enshrined in the Covenant, the practice of forced evictions may also result in
violations of civil and political rights, such as the right to life, the right
to security of the person, the right to non-interference with privacy, family
and home and the right to the peaceful enjoyment of possessions.
5.
Although the practice of forced evictions might appear to occur primarily in
heavily populated urban areas, it also takes place in connection with forced
population transfers, internal displacement, forced relocations in the context
of armed conflict, mass exoduses and refugee movements. In all of these contexts,
the right to adequate housing and not to be subjected to forced eviction may be
violated through a wide range of acts or omissions attributable to States
parties. Even in situations where it may be necessary to impose limitations on
such a right, full compliance with article 4 of the Covenant is required so
that any limitations imposed must be "determined by law only insofar as
this may be compatible with the nature of these [i.e. economic, social and
cultural] rights and solely for the purpose of promoting the general welfare in
a democratic society".
6. Many
instances of forced eviction are associated with violence, such as evictions
resulting from international armed conflicts, internal strife and communal or
ethnic violence.
7. Other
instances of forced eviction occur in the name of development. Evictions may be
carried out in connection with conflict over land rights, development and
infrastructure projects, such as the construction of dams or other large-scale
energy projects, with land acquisition measures associated with urban renewal,
housing renovation, city beautification programmes, the clearing of land for
agricultural purposes, unbridled speculation in land, or the holding of major
sporting events like the Olympic Games.
8. In
essence, the obligations of States parties to the Covenant in relation to
forced evictions are based on article 11.1, read in conjunction with other
relevant provisions. In particular, article 2.1 obliges States to use "all
appropriate means" to promote the right to adequate housing. However, in
view of the nature of the practice of forced evictions, the reference in
article 2.1 to progressive achievement based on the availability of resources
will rarely be relevant. The State itself must refrain from forced evictions
and ensure that the law is enforced against its agents or third parties who
carry out forced evictions (as defined in paragraph 3 above). Moreover, this
approach is reinforced by article 17.1 of the International Covenant on Civil
and Political Rights which complements the right not to be forcefully evicted
without adequate protection. That provision recognizes, inter alia, the
right to be protected against "arbitrary or unlawful interference"
with one's home. It is to be noted that the State's obligation to ensure
respect for that right is not qualified by considerations relating to its
available resources.
9.
Article 2.1 of the Covenant requires States parties to use "all
appropriate means", including the adoption of legislative measures, to
promote all the rights protected under the Covenant. Although the Committee has
indicated in its General Comment No. 3 (1990) that such measures may not be
indispensable in relation to all rights, it is clear that legislation against
forced evictions is an essential basis upon which to build a system of
effective protection. Such legislation should include measures which (a)
provide the greatest possible security of tenure to occupiers of houses and
land, (b) conform to the Covenant and (c) are designed to control strictly the
circumstances under which evictions may be carried out. The legislation must
also apply to all agents acting under the authority of the State or who are
accountable to it. Moreover, in view of the increasing trend in some States
towards the Government greatly reducing its responsibilities in the housing
sector, States parties must ensure that legislative and other measures are
adequate to prevent and, if appropriate, punish forced evictions carried out,
without appropriate safeguards, by private persons or bodies. States parties
should therefore review relevant legislation and policies to ensure that they
are compatible with the obligations arising from the right to adequate housing
and repeal or amend any legislation or policies that are inconsistent with the
requirements of the Covenant.
10.
Women, children, youth, older persons, indigenous people, ethnic and other
minorities, and other vulnerable individuals and groups all suffer
disproportionately from the practice of forced eviction. Women in all groups
are especially vulnerable given the extent of statutory and other forms of
discrimination which often apply in relation to property rights (including home
ownership) or rights of access to property or accommodation, and their
particular vulnerability to acts of violence and sexual abuse when they are
rendered homeless. The non-discrimination provisions of articles 2.2 and 3 of
the Covenant impose an additional obligation upon Governments to ensure that,
where evictions do occur, appropriate measures are taken to ensure that no form
of discrimination is involved.
11.
Whereas some evictions may be justifiable, such as in the case of persistent
non-payment of rent or of damage to rented property without any reasonable
cause, it is incumbent upon the relevant authorities to ensure that they are
carried out in a manner warranted by a law which is compatible with the
Covenant and that all the legal recourses and remedies are available to those
affected.
12.
Forced eviction and house demolition as a punitive measure are also
inconsistent with the norms of the Covenant. Likewise, the Committee takes note
of the obligations enshrined in the Geneva Conventions of 1949 and Protocols
thereto of 1977 concerning prohibitions on the displacement of the civilian
population and the destruction of private property as these relate to the
practice of forced eviction.
13.
States parties shall ensure, prior to carrying out any evictions, and
particularly those involving large groups, that all feasible alternatives are
explored in consultation with the affected persons, with a view to avoiding, or
at least minimizing, the need to use force. Legal remedies or procedures should
be provided to those who are affected by eviction orders. States parties shall
also see to it that all the individuals concerned have a right to adequate
compensation for any property, both personal and real, which is affected. In
this respect, it is pertinent to recall article 2.3 of the International
Covenant on Civil and Political Rights, which requires States parties to ensure
"an effective remedy" for persons whose rights have been violated and
the obligation upon the "competent authorities (to) enforce such remedies
when granted".
14. In
cases where eviction is considered to be justified, it should be carried out in
strict compliance with the relevant provisions of international human rights
law and in accordance with general principles of reasonableness and
proportionality. In this regard it is especially pertinent to recall General
Comment 16 of the Human Rights Committee, relating to article 17 of the
International Covenant on Civil and Political Rights, which states that
interference with a person's home can only take place "in cases envisaged
by the law". The Committee observed that the law "should be in
accordance with the provisions, aims and objectives of the Covenant and should
be, in any event, reasonable in the particular circumstances". The
Committee also indicated that "relevant legislation must specify in detail
the precise circumstances in which such interferences may be permitted".
15.
Appropriate procedural protection and due process are essential aspects of all
human rights but are especially pertinent in relation to a matter such as
forced evictions which directly invokes a large number of the rights recognized
in both the International Covenants on Human Rights. The Committee considers
that the procedural protections which should be applied in relation to forced
evictions include: (a) an opportunity for genuine consultation with those
affected; (b) adequate and reasonable notice for all affected persons prior to
the scheduled date of eviction; (c) information on the proposed evictions, and,
where applicable, on the alternative purpose for which the land or housing is
to be used, to be made available in reasonable time to all those affected; (d)
especially where groups of people are involved, government officials or their
representatives to be present during an eviction; (e) all persons carrying out
the eviction to be properly identified; (f) evictions not to take place in
particularly bad weather or at night unless the affected persons consent
otherwise; (g) provision of legal remedies; and (h) provision, where possible,
of legal aid to persons who are in need of it to seek redress from the courts.
16.
Evictions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights. Where those affected are
unable to provide for themselves, the State party must take all appropriate
measures, to the maximum of its available resources, to ensure that adequate
alternative housing, resettlement or access to productive land, as the case may
be, is available.
17. The
Committee is aware that various development projects financed by international
agencies within the territories of State parties have resulted in forced
evictions. In this regard, the Committee recalls its General Comment No. 2
(1990) which states, inter alia, that "international agencies
should scrupulously avoid involvement in projects which, for example ...
promote or reinforce discrimination against individuals or groups contrary to
the provisions of the Covenant, or involve large-scale evictions or
displacement of persons without the provision of all appropriate protection and
compensation. Every effort should be made, at each phase of a development
project, to ensure that the rights contained in the Covenant are duly taken
into account". 6/
18. Some
institutions, such as the World Bank and the Organisation for Economic
Cooperation and Development (OECD) have adopted guidelines on relocation and/or
resettlement with a view to limiting the scale of and human suffering
associated with forced evictions. Such practices often accompany large-scale
development projects, such as dam-building and other major energy projects.
Full respect for such guidelines, insofar as they reflect the obligations
contained in the Covenant, is essential on the part of both the agencies
themselves and States parties to the Covenant. The Committee recalls in this
respect the statement in the Vienna Declaration and Programme of Action to the
effect that "while development facilitates the enjoyment of all human
rights, the lack of development may not be invoked to justify the abridgement
of internationally recognized human rights" (Part I, para. 10).
19. In
accordance with the guidelines for reporting adopted by the Committee, State
parties are requested to provide various types of information pertaining
directly to the practice of forced evictions. This includes information
relating to (a) the "number of persons evicted within the last five years
and the number of persons currently lacking legal protection against arbitrary
eviction or any other kind of eviction", (b) "legislation concerning
the rights of tenants to security of tenure, to protection from eviction"
and (c) "legislation prohibiting any form of eviction". 7/
20.
Information is also sought as to "measures taken during, inter alia,
urban renewal programmes, redevelopment projects, site upgrading, preparation
for international events (Olympics and other sporting competitions,
exhibitions, conferences, etc.) 'beautiful city' campaigns, etc. which
guarantee protection from eviction or guarantee rehousing based on mutual
consent, by any persons living on or near to affected sites". 8/
However, few States parties have included the requisite information in their
reports to the Committee. The Committee therefore wishes to emphasize the
importance it attaches to the receipt of such information.
21. Some States parties have indicated that
information of this nature is not available. The Committee recalls that
effective monitoring of the right to adequate housing, either by the Government
concerned or by the Committee, is not possible in the absence of the collection
of appropriate data and would request all States parties to ensure that the
necessary data is collected and is reflected in the reports submitted by them
under the Covenant.
The relationship between economic
sanctions and respect for economic, social and cultural rights : . 05/12/97.
E/C.12/1997/8, CESCR General comment 8. (General Comments)
Seventeenth session 17 November-5 December 1997
IMPLEMENTATION OF THE
INTERNATIONAL COVENANT ON ECONOMIC,
SOCIAL AND CULTURAL RIGHTS
The relationship between economic sanctions and respect
for economic, social and cultural rights
1.
Economic sanctions are being imposed with increasing frequency, both
internationally, regionally and unilaterally. The purpose of this general
comment is to emphasize that, whatever the circumstances, such sanctions should
always take full account of the provisions of the International Covenant on
Economic, Social and Cultural Rights. The Committee does not in any way call
into question the necessity for the imposition of sanctions in appropriate
cases in accordance with Chapter VII of the Charter of the United Nations or
other applicable international law. But those provisions of the Charter that
relate to human rights (Articles 1, 55 and 56) must still be considered to be
fully applicable in such cases.
2.
During the 1990s the Security Council has imposed sanctions of varying kind and
duration in relation to South Africa, Iraq/Kuwait, parts of the former
Yugoslavia, Somalia, the Libyan Arab Jamahiriya, Liberia, Haiti, Angola, Rwanda
and the Sudan. The impact of sanctions upon the enjoyment of economic, social
and cultural rights has been brought to the Committee's attention in a number
of cases involving States parties to the Covenant, some of which have reported
regularly, thereby giving the Committee the opportunity to examine the
situation carefully.
3. While
the impact of sanctions varies from one case to another, the Committee is aware
that they almost always have a dramatic impact on the rights recognized in the
Covenant. Thus, for example, they often cause significant disruption in the distribution
of food, pharmaceuticals and sanitation supplies, jeopardize the quality of
food and the availability of clean drinking water, severely interfere with the
functioning of basic health and education systems, and undermine the right to
work. In addition, their unintended consequences can include reinforcement of
the power of oppressive élites, the emergence, almost invariably, of a black
market and the generation of huge windfall profits for the privileged élites
which manage it, enhancement of the control of the governing élites over the
population at large, and restriction of opportunities to seek asylum or to
manifest political opposition. While the phenomena mentioned in the preceding
sentence are essentially political in nature, they also have a major additional
impact on the enjoyment of economic, social and cultural rights.
4. In
considering sanctions, it is essential to distinguish between the basic
objective of applying political and economic pressure upon the governing élite
of the country to persuade them to conform to international law, and the
collateral infliction of suffering upon the most vulnerable groups within the
targeted country. For that reason, the sanctions regimes established by the
Security Council now include humanitarian exemptions designed to permit the
flow of essential goods and services destined for humanitarian purposes. It is
commonly assumed that these exemptions ensure basic respect for economic,
social and cultural rights within the targeted country.
5.
However, a number of recent United Nations and other studies which have
analysed the impact of sanctions have concluded that these exemptions do not
have this effect. Moreover, the exemptions are very limited in scope. They do
not address, for example, the question of access to primary education, nor do
they provide for repairs to infrastructures which are essential to provide
clean water, adequate health care etc. The Secretary-General suggested in 1995
that there is a need to assess the potential impact of sanctions before they
are imposed and to enhance arrangements for the provision of humanitarian
assistance to vulnerable groups.1/
In the following year, a major study prepared for the General Assembly by Ms
Graça Machel, on the impact of armed conflict on children, stated that
"humanitarian exemptions tend to be ambiguous and are interpreted
arbitrarily and inconsistently. ... Delays, confusion and the denial of
requests to import essential humanitarian goods cause resource shortages.
...[Their effects] inevitably fall most heavily on the poor".2/
Most recently, an October 1997 United Nations report concluded that the review
procedures established under the various sanctions committees established by
the Security Council "remain cumbersome and aid agencies still encounter
difficulties in obtaining approval for exempted supplies. ... [The] committees
neglect larger problems of commercial and governmental violations in the form
of black-marketing, illicit trade, and corruption."3/
6. It is
thus clear, on the basis of an impressive array of both country-specific and
general studies, that insufficient attention is being paid to the impact of
sanctions on vulnerable groups. Nevertheless, for various reasons, these
studies have not examined specifically the nefarious consequences that ensue
for the enjoyment of economic, social and cultural rights, per se. It is in
fact apparent that in most, if not all, cases, those consequences have either
not been taken into account at all or not given the serious consideration they
deserve. There is thus a need to inject a human rights dimension into
deliberations on this issue.
7. The
Committee considers that the provisions of the Covenant, virtually all of which
are also reflected in a range of other human rights treaties as well as the
Universal Declaration of Human Rights, cannot be considered to be inoperative,
or in any way inapplicable, solely because a decision has been taken that
considerations of international peace and security warrant the imposition of
sanctions. Just as the international community insists that any targeted State
must respect the civil and political rights of its citizens, so too must that
State and the international community itself do everything possible to protect
at least the core content of the economic, social and cultural rights of the
affected peoples of that State (see also General Comment 3 (1990), paragraph
10).
8. While
this obligation of every State is derived from the commitment in the Charter of
the United Nations to promote respect for all human rights, it should also be
recalled that every permanent member of the Security Council has signed the
Covenant, although two (China and the United States) have yet to ratify it.
Most of the non-permanent members at any given time are parties. Each of these
States has undertaken, in conformity with article 2, paragraph 1, of the
Covenant to "take steps, individually and through international assistance
and cooperation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full realization
of the rights recognized in the present Covenant by all appropriate means
...." When the affected State is also a State party, it is doubly
incumbent upon other States to respect and take account of the relevant
obligations. To the extent that sanctions are imposed on States which are not
parties to the Covenant, the same principles would in any event apply given the
status of the economic, social and cultural rights of vulnerable groups as part
of general international law, as evidenced, for example, by the near-universal
ratification of the Convention on the Rights of the Child and the status of the
Universal Declaration of Human Rights.
9.
Although the Committee has no role to play in relation to decisions to impose
or not to impose sanctions, it does, however, have a responsibility to monitor
compliance by all States parties with the Covenant. When measures are taken
which inhibit the ability of a State party to meet its obligations under the
Covenant, the terms of sanctions and the manner in which they are implemented
become appropriate matters for concern for the Committee.
10. The
Committee believes that two sets of obligations flow from these considerations.
The first set relates to the affected State. The imposition of sanctions does
not in any way nullify or diminish the relevant obligations of that State
party. As in other comparable situations, those obligations assume greater
practical importance in times of particular hardship. The Committee is thus
called upon to scrutinize very carefully the extent to which the State
concerned has taken steps "to the maximum of its available resources"
to provide the greatest possible protection for the economic, social and
cultural rights of each individual living within its jurisdiction. While sanctions
will inevitably diminish the capacity of the affected State to fund or support
some of the necessary measures, the State remains under an obligation to ensure
the absence of discrimination in relation to the enjoyment of these rights, and
to take all possible measures, including negotiations with other States and the
international community, to reduce to a minimum the negative impact upon the
rights of vulnerable groups within the society.
11. The
second set of obligations relates to the party or parties responsible for the
imposition, maintenance or implementation of the sanctions, whether it be the
international community, an international or regional organization, or a State
or group of States. In this respect, the Committee considers that there are
three conclusions which follow logically from the recognition of economic,
social and cultural human rights.
12.
First, these rights must be taken fully into account when designing an
appropriate sanctions regime. Without endorsing any particular measures in this
regard, the Committee notes proposals such as those calling for the creation of
a United Nations mechanism for anticipating and tracking sanctions impacts, the
elaboration of a more transparent set of agreed principles and procedures based
on respect for human rights, the identification of a wider range of exempt
goods and services, the authorization of agreed technical agencies to determine
necessary exemptions, the creation of a better resourced set of sanctions
committees, more precise targeting of the vulnerabilities of those whose
behaviour the international community wishes to change, and the introduction of
greater overall flexibility.
13.
Second, effective monitoring, which is always required under the terms of the
Covenant, should be undertaken throughout the period that sanctions are in
force. When an external party takes upon itself even partial responsibility for
the situation within a country (whether under Chapter VII of the Charter or
otherwise), it also unavoidably assumes a responsibility to do all within its
power to protect the economic, social and cultural rights of the affected
population.
14.
Third, the external entity has an obligation "to take steps, individually
and through international assistance and cooperation, especially economic and
technical" in order to respond to any disproportionate suffering
experienced by vulnerable groups within the targeted country.
15. In
anticipating the objection that sanctions must, almost by definition, result in
the grave violations of economic, social and cultural rights if they are to
achieve their objectives, the Committee notes the conclusion of a major United
Nations study to the effect that "decisions to reduce the suffering of
children or minimize other adverse consequences can be taken without
jeopardizing the policy aim of sanctions".4
This applies equally to the situation of all vulnerable groups.
16. In
adopting this general comment the sole aim of the Committee is to draw
attention to the fact that the inhabitants of a given country do not forfeit
their basic economic, social and cultural rights by virtue of any determination
that their leaders have violated norms relating to international peace and
security. The aim is not to give support or encouragement to such leaders, nor
is it to undermine the legitimate interests of the international community in
enforcing respect for the provisions of the Charter of the United Nations and
the general principles of international law. Rather, it is to insist that
lawlessness of one kind should not be met by lawlessness of another kind which
pays no heed to the fundamental rights that underlie and give legitimacy to any
such collective action.
The domestic application of the
Covenant : . 03/12/98. E/C.12/1998/24, CESCR General comment 9. (General Comments)
Nineteenth session Geneva, 16 November-4 December 1998
The domestic application of the Covenant
A. The duty to give effect to the Covenant in the domestic legal order
1. In
its General Comment No. 3 (1990) on the nature of States parties' obligations
(art. 2, para. 1, of the Covenant) 1/
the Committee addressed issues relating to the nature and scope of States
parties' obligations. The present general comment seeks to elaborate further
certain elements of the earlier statement. The central obligation in relation
to the Covenant is for States parties to give effect to the rights recognized
therein. By requiring Governments to do so "by all appropriate
means", the Covenant adopts a broad and flexible approach which enables
the particularities of the legal and administrative systems of each State, as
well as other relevant considerations, to be taken into account.
2. But
this flexibility coexists with the obligation upon each State party to use all
the means at its disposal to give effect to the rights recognized in the
Covenant. In this respect, the fundamental requirements of international human
rights law must be borne in mind. Thus the Covenant norms must be recognized in
appropriate ways within the domestic legal order, appropriate means of redress,
or remedies, must be available to any aggrieved individual or group, and
appropriate means of ensuring governmental accountability must be put in place.
3.
Questions relating to the domestic application of the Covenant must be
considered in the light of two principles of international law. The first, as
reflected in article 27 of the Vienna Convention on the Law of Treaties, 2/
is that "[A] party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty". In other words,
States should modify the domestic legal order as necessary in order to give
effect to their treaty obligations. The second principle is reflected in
article 8 of the Universal Declaration of Human Rights, according to which
"Everyone has the right to an effective remedy by the competent national tribunals
for acts violating the fundamental rights granted him by the constitution or by
law". The International Covenant on Economic, Social and Cultural Rights
contains no direct counterpart to article 2, paragraph 3 (b), of the
International Covenant on Civil and Political Rights, which obligates States
parties to, inter alia, "develop the possibilities of judicial
remedy". Nevertheless, a State party seeking to justify its failure to
provide any domestic legal remedies for violations of economic, social and
cultural rights would need to show either that such remedies are not
"appropriate means" within the terms of article 2, paragraph 1, of
the International Covenant on Economic, Social and Cultural Rights or that, in
view of the other means used, they are unnecessary. It will be difficult to
show this and the Committee considers that, in many cases, the other means used
could be rendered ineffective if they are not reinforced or complemented by
judicial remedies.
B. The
status of the Covenant in the domestic legal order
4. In
general, legally binding international human rights standards should operate
directly and immediately within the domestic legal system of each State party,
thereby enabling individuals to seek enforcement of their rights before national
courts and tribunals. The rule requiring the exhaustion of domestic remedies
reinforces the primacy of national remedies in this respect. The existence and
further development of international procedures for the pursuit of individual
claims is important, but such procedures are ultimately only supplementary to
effective national remedies.
5. The
Covenant does not stipulate the specific means by which it is to be implemented
in the national legal order. And there is no provision obligating its comprehensive
incorporation or requiring it to be accorded any specific type of status in
national law. Although the precise method by which Covenant rights are given
effect in national law is a matter for each State party to decide, the means
used should be appropriate in the sense of producing results which are
consistent with the full discharge of its obligations by the State party. The
means chosen are also subject to review as part of the Committee's examination
of the State party's compliance with its obligations under the Covenant.
6. An
analysis of State practice with respect to the Covenant shows that States have
used a variety of approaches. Some States have failed to do anything specific
at all. Of those that have taken measures, some States have transformed the
Covenant into domestic law by supplementing or amending existing legislation,
without invoking the specific terms of the Covenant. Others have adopted or
incorporated it into domestic law, so that its terms are retained intact and
given formal validity in the national legal order. This has often been done by
means of constitutional provisions according priority to the provisions of
international human rights treaties over any inconsistent domestic laws. The
approach of States to the Covenant depends significantly upon the approach
adopted to treaties in general in the domestic legal order.
7. But
whatever the preferred methodology, several principles follow from the duty to
give effect to the Covenant and must therefore be respected. First, the means
of implementation chosen must be adequate to ensure fulfilment of the
obligations under the Covenant. The need to ensure justiciability (see para. 10
below) is relevant when determining the best way to give domestic legal effect
to the Covenant rights. Second, account should be taken of the means which have
proved to be most effective in the country concerned in ensuring the protection
of other human rights. Where the means used to give effect to the Covenant on
Economic, Social and Cultural Rights differ significantly from those used in
relation to other human rights treaties, there should be a compelling
justification for this, taking account of the fact that the formulations used
in the Covenant are, to a considerable extent, comparable to those used in
treaties dealing with civil and political rights.
8.
Third, while the Covenant does not formally oblige States to incorporate its
provisions in domestic law, such an approach is desirable. Direct incorporation
avoids problems that might arise in the translation of treaty obligations into
national law, and provides a basis for the direct invocation of the Covenant
rights by individuals in national courts. For these reasons, the Committee
strongly encourages formal adoption or incorporation of the Covenant in
national law.
C. The
role of legal remedies
Legal
or judicial remedies?
9.The
right to an effective remedy need not be interpreted as always requiring a
judicial remedy. Administrative remedies will, in many cases, be adequate and
those living within the jurisdiction of a State party have a legitimate
expectation, based on the principle of good faith, that all administrative
authorities will take account of the requirements of the Covenant in their
decision-making. Any such administrative remedies should be accessible,
affordable, timely and effective. An ultimate right of judicial appeal from
administrative procedures of this type would also often be appropriate. By the
same token, there are some obligations, such as (but by no means limited to) those
concerning non-discrimination, 3/
in relation to which the provision of some form of judicial remedy would seem
indispensable in order to satisfy the requirements of the Covenant. In other
words, whenever a Covenant right cannot be made fully effective without some
role for the judiciary, judicial remedies are necessary.
Justiciability
10.In
relation to civil and political rights, it is generally taken for granted that
judicial remedies for violations are essential. Regrettably, the contrary
assumption is too often made in relation to economic, social and cultural
rights. This discrepancy is not warranted either by the nature of the rights or
by the relevant Covenant provisions. The Committee has already made clear that
it considers many of the provisions in the Covenant to be capable of immediate
implementation. Thus, in General Comment No. 3 (1990) it cited, by way of
example, articles 3; 7, paragraph (a) (i); 8; 10, paragraph 3; 13, paragraph 2
(a); 13, paragraph 3; 13, paragraph 4; and 15, paragraph 3. It is important in
this regard to distinguish between justiciability (which refers to those matters
which are appropriately resolved by the courts) and norms which are
self-executing (capable of being applied by courts without further
elaboration). While the general approach of each legal system needs to be taken
into account, there is no Covenant right which could not, in the great majority
of systems, be considered to possess at least some significant justiciable
dimensions. It is sometimes suggested that matters involving the allocation of
resources should be left to the political authorities rather than the courts.
While the respective competences of the various branches of government must be
respected, it is appropriate to acknowledge that courts are generally already
involved in a considerable range of matters which have important resource
implications. The adoption of a rigid classification of economic, social and
cultural rights which puts them, by definition, beyond the reach of the courts
would thus be arbitrary and incompatible with the principle that the two sets
of human rights are indivisible and interdependent. It would also drastically
curtail the capacity of the courts to protect the rights of the most vulnerable
and disadvantaged groups in society.
Self-executing
11.The
Covenant does not negate the possibility that the rights it contains may be
considered self-executing in systems where that option is provided for. Indeed,
when it was being drafted, attempts to include a specific provision in the
Covenant to the effect that it be considered "non-self-executing"
were strongly rejected. In most States, the determination of whether or not a
treaty provision is self-executing will be a matter for the courts, not the
executive or the legislature. In order to perform that function effectively,
the relevant courts and tribunals must be made aware of the nature and
implications of the Covenant and of the important role of judicial remedies in
its implementation. Thus, for example, when Governments are involved in court
proceedings, they should promote interpretations of domestic laws which give effect
to their Covenant obligations. Similarly, judicial training should take full
account of the justiciability of the Covenant. It is especially important to
avoid any a priori assumption that the norms should be considered to be
non-self-executing. In fact, many of them are stated in terms which are at
least as clear and specific as those in other human rights treaties, the
provisions of which are regularly deemed by courts to be self-executing.
D. The
treatment of the Covenant in domestic courts
12.In the
Committee's guidelines for States' reports, States are requested to provide
information as to whether the provisions of the Covenant "can be invoked
before, and directly enforced by, the Courts, other tribunals or administrative
authorities". 4/
Some States have provided such information, but greater importance should be
attached to this element in future reports. In particular, the Committee
requests that States parties provide details of any significant jurisprudence
from their domestic courts that makes use of the provisions of the Covenant.
13.On
the basis of available information, it is clear that State practice is mixed.
The Committee notes that some courts have applied the provisions of the
Covenant either directly or as interpretive standards. Other courts are willing
to acknowledge, in principle, the relevance of the Covenant for interpreting
domestic law, but in practice, the impact of the Covenant on the reasoning or
outcome of cases is very limited. Still other courts have refused to give any
degree of legal effect to the Covenant in cases in which individuals have
sought to rely on it. There remains extensive scope for the courts in most
countries to place greater reliance upon the Covenant.
14.Within
the limits of the appropriate exercise of their functions of judicial review,
courts should take account of Covenant rights where this is necessary to ensure
that the State's conduct is consistent with its obligations under the Covenant.
Neglect by the courts of this responsibility is incompatible with the principle
of the rule of law, which must always be taken to include respect for international
human rights obligations.
15.It is
generally accepted that domestic law should be interpreted as far as possible
in a way which conforms to a State's international legal obligations. Thus,
when a domestic decision maker is faced with a choice between an interpretation
of domestic law that would place the State in breach of the Covenant and one
that would enable the State to comply with the Covenant, international law
requires the choice of the latter. Guarantees of equality and
non-discrimination should be interpreted, to the greatest extent possible, in
ways which facilitate the full protection of economic, social and cultural
rights.
The role
of national human rights institutions in the protection
of economic, social and cultural rights
General comment No. 10:
1. Article 2, paragraph 1, of the Covenant obligates each State party "to
take steps ... with a view to achieving progressively the full realization of
the [Covenant] rights ... by all appropriate means". The Committee notes
that one such means, through which important steps can be taken, is the work of
national institutions for the promotion and protection of human rights. In
recent years there has been a proliferation of these institutions and the trend
has been strongly encouraged by the General Assembly and the Commission on
Human Rights. The Office of the United Nations High Commissioner for Human
Rights has established a major programme to assist and encourage States in
relation to national institutions.
2. These
institutions range from national human rights commissions through Ombudsman
offices, public interest or other human rights "advocates", to
"defensores del pueblo". In many cases, the institution has been
established by the Government, enjoys an important degree of autonomy from the
executive and the legislature, takes full account of international human rights
standards which are applicable to the country concerned, and is mandated to
perform various activities designed to promote and protect human rights. Such
institutions have been established in States with widely differing legal
cultures and regardless of their economic situation.
3. The
Committee notes that national institutions have a potentially crucial role to
play in promoting and ensuring the indivisibility and interdependence of all
human rights. Unfortunately, this role has too often either not been accorded
to the institution or has been neglected or given a low priority by it. It is
therefore essential that full attention be given to economic, social and
cultural rights in all of the relevant activities of these institutions. The
following list is indicative of the types of activities that can be, and in
some instances already have been, undertaken by national institutions in
relation to these rights:
(a) The
promotion of educational and information programmes designed to enhance
awareness and understanding of economic, social and cultural rights, both
within the population at large and among particular groups such as the public
service, the judiciary, the private sector and the labour movement;
(b) The
scrutinizing of existing laws and administrative acts, as well as draft bills
and other proposals, to ensure that they are consistent with the requirements
of the International Covenant on Economic, Social and Cultural Rights;
(c)
Providing technical advice, or undertaking surveys in relation to economic,
social and cultural rights, including at the request of the public authorities
or other appropriate agencies;
(d) The
identification of national-level benchmarks against which the realization of
Covenant obligations can be measured;
(e)
Conducting research and inquiries designed to ascertain the extent to which
particular economic, social and cultural rights are being realized, either
within the State as a whole or in areas or in relation to communities of
particular vulnerability;
(f)
Monitoring compliance with specific rights recognized under the Covenant and
providing reports thereon to the public authorities and civil society; and
(g)
Examining complaints alleging infringements of applicable economic, social and
cultural rights standards within the State.
4. The
Committee calls upon States parties to ensure that the mandates accorded to all
national human rights institutions include appropriate attention to economic,
social and cultural rights and requests States parties to include details of
both the mandates and the principal relevant activities of such institutions in
their reports submitted to the Committee.
Plans of action for primary
education (art.14) : . 10/05/99. E/C.12/1999/4, CESCR General comment 11. (General Comments)
Twentieth session Geneva, 26 April-14 May 1999
Plans of action
for primary education
(Article 14)
1.
Article 14 of the International Covenant on Economic, Social and Cultural Rights
requires each State party which has not been able to secure compulsory primary
education, free of charge, to undertake, within two years, to work out and
adopt a detailed plan of action for the progressive implementation, within a
reasonable number of years, to be fixed in the plan, of the principle of
compulsory primary education free of charge for all. In spite of the
obligations undertaken in accordance with article 14, a number of States
parties have neither drafted nor implemented a plan of action for free and
compulsory primary education.
2. The
right to education, recognized in articles 13 and 14 of the Covenant, as well
as in a variety of other international treaties, such as the Convention on the
Rights of the Child and the Convention on the Elimination of All Forms of
Discrimination against Women, is of vital importance. It has been variously
classified as an economic right, a social right and a cultural right. It is all
of these. It is also, in many ways, a civil right and a political right, since
it is central to the full and effective realization of those rights as well. In
this respect, the right to education epitomizes the indivisibility and
interdependence of all human rights.
3. In line with its clear and unequivocal obligation under article 14, every
State party is under a duty to present to the Committee a plan of action drawn
up along the lines specified in paragraph 8 below. This obligation needs to be
scrupulously observed in view of the fact that in developing countries, 130
million children of school age are currently estimated to be without access to
primary education, of whom about two thirds are girls. 1/
The Committee is fully aware that many diverse factors have made it difficult
for States parties to fulfil their obligation to provide a plan of action. For
example, the structural adjustment programmes that began in the 1970s, the debt
crises that followed in the 1980s and the financial crises of the late 1990s,
as well as other factors, have greatly exacerbated the extent to which the
right to primary education is being denied. These difficulties, however, cannot
relieve States parties of their obligation to adopt and submit a plan of action
to the Committee, as provided for in article 14 of the Covenant.
4. Plans
of action prepared by States parties to the Covenant in accordance with article
14 are especially important as the work of the Committee has shown that the
lack of educational opportunities for children often reinforces their
subjection to various other human rights violations. For instance these
children, who may live in abject poverty and not lead healthy lives, are
particularly vulnerable to forced labour and other forms of exploitation.
Moreover, there is a direct correlation between, for example, primary school
enrolment levels for girls and major reductions in child marriages.
5.
Article 14 contains a number of elements which warrant some elaboration in the
light of the Committee's extensive experience in examining State party reports.
6. Compulsory.
The element of compulsion serves to highlight the fact that neither parents,
nor guardians, nor the State are entitled to treat as optional the decision as
to whether the child should have access to primary education. Similarly, the
prohibition of gender discrimination in access to education, required also by
articles 2 and 3 of the Covenant, is further underlined by this requirement. It
should be emphasized, however, that the education offered must be adequate in
quality, relevant to the child and must promote the realization of the child's
other rights.
7. Free
of charge. The nature of this requirement is unequivocal. The right is
expressly formulated so as to ensure the availability of primary education
without charge to the child, parents or guardians. Fees imposed by the
Government, the local authorities or the school, and other direct costs,
constitute disincentives to the enjoyment of the right and may jeopardize its
realization. They are also often highly regressive in effect. Their elimination
is a matter which must be addressed by the required plan of action. Indirect
costs, such as compulsory levies on parents (sometimes portrayed as being
voluntary, when in fact they are not), or the obligation to wear a relatively
expensive school uniform, can also fall into the same category. Other indirect
costs may be permissible, subject to the Committee's examination on a
case-by-case basis. This provision of compulsory primary education in no way
conflicts with the right recognized in article 13.3 of the Covenant for parents
and guardians "to choose for their children schools other than those
established by the public authorities".
8. Adoption
of a detailed plan. The State party is required to adopt a plan of action
within two years. This must be interpreted as meaning within two years of the
Covenant's entry into force of the State concerned, or within two years of a
subsequent change in circumstances which has led to the non-observance of the
relevant obligation. This obligation is a continuing one and States parties to
which the provision is relevant by virtue of the prevailing situation are not
absolved from the obligation as a result of their past failure to act within
the two-year limit. The plan must cover all of the actions which are necessary
in order to secure each of the requisite component parts of the right and must
be sufficiently detailed so as to ensure the comprehensive realization of the
right. Participation of all sections of civil society in the drawing up of the
plan is vital and some means of periodically reviewing progress and ensuring
accountability are essential. Without those elements, the significance of the article
would be undermined.
9. Obligations.
A State party cannot escape the unequivocal obligation to adopt a plan of
action on the grounds that the necessary resources are not available. If the
obligation could be avoided in this way, there would be no justification for
the unique requirement contained in article 14 which applies, almost by
definition, to situations characterized by inadequate financial resources. By
the same token, and for the same reason, the reference to "international
assistance and cooperation" in article 2.1 and to "international
action" in article 23 of the Covenant are of particular relevance in this
situation. Where a State party is clearly lacking in the financial resources
and/or expertise required to "work out and adopt" a detailed plan,
the international community has a clear obligation to assist.
10. Progressive
implementation. The plan of action must be aimed at securing the
progressive implementation of the right to compulsory primary education, free
of charge, under article 14. Unlike the provision in article 2.1, however,
article 14 specifies that the target date must be "within a reasonable
number of years" and moreover, that the time-frame must "be fixed in
the plan". In other words, the plan must specifically set out a series of
targeted implementation dates for each stage of the progressive implementation
of the plan. This underscores both the importance and the relative
inflexibility of the obligation in question. Moreover, it needs to be stressed
in this regard that the State party's other obligations, such as
non-discrimination, are required to be implemented fully and immediately.
11. The Committee calls upon every State party to which article 14 is relevant to ensure that its terms are fully complied with and that the resulting plan of action is submitted to the Committee as an integral part of the reports required under the Covenant. Further, in appropriate cases, the Committee encourages States parties to seek the assistance of relevant international agencies, including the International Labour Organization (ILO), the United Nations Development Programme (UNDP), the United Nations Educational, Scientific and Cultural Organization (UNESCO), the United Nations Children's Fund (UNICEF), the International Monetary Fund (IMF) and the World Bank, in relation both to the preparation of plans of action under article 14 and their subsequent implementation. The Committee also calls upon the relevant international agencies to assist States parties to the greatest extent possible to meet their obligations on an urgent basis.
The right to adequate food (Art.11)
: . 12/05/99. E/C.12/1999/5, CESCR General comment 12. (General Comments)
Twentieth session Geneva, 26 April-14
May 1999
The right to adequate food
(Art. 11)
Introduction and basic premises
1. The
human right to adequate food is recognized in several instruments under
international law. The International Covenant on Economic, Social and Cultural
Rights deals more comprehensively than any other instrument with this right.
Pursuant to article 11.1 of the Covenant, States parties recognize "the
right of everyone to an adequate standard of living for himself and his family,
including adequate food, clothing and housing, and to the continuous
improvement of living conditions", while pursuant to article 11.2 they
recognize that more immediate and urgent steps may be needed to ensure
"the fundamental right to freedom from hunger and malnutrition". The
human right to adequate food is of crucial importance for the enjoyment of all
rights. It applies to everyone; thus the reference in Article 11.1 to
"himself and his family" does not imply any limitation upon the
applicability of this right to individuals or to female-headed households.
2. The
Committee has accumulated significant information pertaining to the right to
adequate food through examination of State parties' reports over the years
since 1979. The Committee has noted that while reporting guidelines are
available relating to the right to adequate food, only few States parties have
provided information sufficient and precise enough to enable the Committee to
determine the prevailing situation in the countries concerned with respect to
this right and to identify the obstacles to its realization. This General
Comment aims to identify some of the principal issues which the Committee
considers to be important in relation to the right to adequate food. Its
preparation was triggered by the request of Member States during the 1996 World
Food Summit, for a better definition of the rights relating to food in article
11 of the Covenant, and by a special request to the Committee to give
particular attention to the Summit Plan of Action in monitoring the
implementation of the specific measures provided for in article 11 of the Covenant.
3. In
response to these requests, the Committee reviewed the relevant reports and
documentation of the Commission on Human Rights and of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities on the right to
adequate food as a human right; devoted a day of general discussion to this
issue at its seventeenth session in 1997, taking into consideration the draft
international code of conduct on the human right to adequate food prepared by
international non-governmental organizations; participated in two expert
consultations on the right to adequate food as a human right organized by the
Office of the United Nations High Commissioner for Human Rights (OHCHR), in
Geneva in December 1997, and in Rome in November 1998 co-hosted by the Food and
Agriculture Organization of the United Nations (FAO), and noted their final
reports. In April 1999 the Committee participated in a symposium on "The
substance and politics of a human rights approach to food and nutrition
policies and programmes", organized by the Administrative Committee on
Co-ordination/Sub-Committee on Nutrition of the United Nations at its
twenty-sixth session in Geneva and hosted by OHCHR.
4. The
Committee affirms that the right to adequate food is indivisibly linked to the
inherent dignity of the human person and is indispensable for the fulfilment of
other human rights enshrined in the International Bill of Human Rights. It is
also inseparable from social justice, requiring the adoption of appropriate
economic, environmental and social policies, at both the national and
international levels, oriented to the eradication of poverty and the fulfilment
of all human rights for all.
5.
Despite the fact that the international community has frequently reaffirmed the
importance of full respect for the right to adequate food, a disturbing gap
still exists between the standards set in article 11 of the Covenant and the
situation prevailing in many parts of the world. More than 840 million people
throughout the world, most of them in developing countries, are chronically
hungry; millions of people are suffering from famine as the result of natural
disasters, the increasing incidence of civil strife and wars in some regions
and the use of food as a political weapon. The Committee observes that while
the problems of hunger and malnutrition are often particularly acute in
developing countries, malnutrition, under-nutrition and other problems which
relate to the right to adequate food and the right to freedom from hunger, also
exist in some of the most economically developed countries. Fundamentally, the
roots of the problem of hunger and malnutrition are not lack of food but lack
of access to available food, inter alia because of poverty, by
large segments of the world's population
Normative
content of article 11, paragraphs 1 and 2
6. The
right to adequate food is realized when every man, woman and child, alone or in
community with others, has physical and economic access at all times to
adequate food or means for its procurement. The right to adequate food
shall therefore not be interpreted in a narrow or restrictive sense which
equates it with a minimum package of calories, proteins and other specific
nutrients. The right to adequate food will have to be realized
progressively. However, States have a core obligation to take the necessary
action to mitigate and alleviate hunger as provided for in paragraph 2 of
article 11, even in times of natural or other disasters.
Adequacy
and sustainability of food availability and access
7. The
concept of adequacy is particularly significant in relation to the right
to food since it serves to underline a number of factors which must be taken
into account in determining whether particular foods or diets that are
accessible can be considered the most appropriate under given circumstances for
the purposes of article 11 of the Covenant. The notion of sustainability
is intrinsically linked to the notion of adequate food or food security,
implying food being accessible for both present and future generations. The
precise meaning of "adequacy" is to a large extent determined by
prevailing social, economic, cultural, climatic, ecological and other
conditions, while "sustainability" incorporates the notion of
long-term availability and accessibility.
8. The
Committee considers that the core content of the right to adequate food
implies:
The
availability of food in a quantity and quality sufficient to satisfy the
dietary needs of individuals, free from adverse substances, and acceptable
within a given culture;
The
accessibility of such food in ways that are sustainable and that do not
interfere with the enjoyment of other human rights.
9. Dietary
needs implies that the diet as a whole contains a mix of nutrients for
physical and mental growth, development and maintenance, and physical activity
that are in compliance with human physiological needs at all stages throughout
the life cycle and according to gender and occupation. Measures may therefore
need to be taken to maintain, adapt or strengthen dietary diversity and
appropriate consumption and feeding patterns, including breast-feeding, while
ensuring that changes in availability and access to food supply as a minimum do
not negatively affect dietary composition and intake.
10. Free
from adverse substances sets requirements for food safety and for a range
of protective measures by both public and private means to prevent
contamination of foodstuffs through adulteration and/or through bad
environmental hygiene or inappropriate handling at different stages throughout
the food chain; care must also be taken to identify and avoid or destroy
naturally occurring toxins.
11. Cultural
or consumer acceptability implies the need also to take into account, as
far as possible, perceived non nutrient-based values attached to food and food
consumption and informed consumer concerns regarding the nature of accessible
food supplies.
12. Availability
refers to the possibilities either for feeding oneself directly from productive
land or other natural resources, or for well functioning distribution,
processing and market systems that can move food from the site of production to
where it is needed in accordance with demand.
13. Accessibility
encompasses both economic and physical accessibility:
Economic
accessibility implies that personal or household financial costs associated
with the acquisition of food for an adequate diet should be at a level such
that the attainment and satisfaction of other basic needs are not threatened or
compromised. Economic accessibility applies to any acquisition pattern or
entitlement through which people procure their food and is a measure of the
extent to which it is satisfactory for the enjoyment of the right to adequate
food. Socially vulnerable groups such as landless persons and other particularly
impoverished segments of the population may need attention through special
programmes.
Physical
accessibility implies that adequate food must be accessible to everyone,
including physically vulnerable individuals, such as infants and young
children, elderly people, the physically disabled, the terminally ill and
persons with persistent medical problems, including the mentally ill. Victims
of natural disasters, people living in disaster-prone areas and other specially
disadvantaged groups may need special attention and sometimes priority
consideration with respect to accessibility of food. A particular vulnerability
is that of many indigenous population groups whose access to their ancestral
lands may be threatened.
Obligations
and violations
14. The
nature of the legal obligations of States parties are set out in article 2 of
the Covenant and has been dealt with in the Committee's General Comment No. 3
(1990). The principal obligation is to take steps to achieve progressively
the full realization of the right to adequate food. This imposes an obligation
to move as expeditiously as possible towards that goal. Every State is obliged
to ensure for everyone under its jurisdiction access to the minimum essential
food which is sufficient, nutritionally adequate and safe, to ensure their
freedom from hunger.
15. The
right to adequate food, like any other human right, imposes three types or
levels of obligations on States parties: the obligations to respect, to protect
and to fulfil. In turn, the obligation to fulfil incorporates
both an obligation to facilitate and an obligation to provide.
1/
The obligation to respect existing access to adequate food requires
States parties not to take any measures that result in preventing such access.
The obligation to protect requires measures by the State to ensure that
enterprises or individuals do not deprive individuals of their access to
adequate food. The obligation to fulfil (facilitate) means the
State must pro-actively engage in activities intended to strengthen people's
access to and utilization of resources and means to ensure their livelihood,
including food security. Finally, whenever an individual or group is unable,
for reasons beyond their control, to enjoy the right to adequate food by the
means at their disposal, States have the obligation to fulfil (provide) that
right directly. This obligation also applies for persons who are victims of
natural or other disasters.
16. Some
measures at these different levels of obligations of States parties are of a
more immediate nature, while other measures are more of a long-term character,
to achieve progressively the full realization of the right to food.
17.
Violations of the Covenant occur when a State fails to ensure the satisfaction
of, at the very least, the minimum essential level required to be free from
hunger. In determining which actions or omissions amount to a violation of the
right to food, it is important to distinguish the inability from the
unwillingness of a State party to comply. Should a State party argue that
resource constraints make it impossible to provide access to food for those who
are unable by themselves to secure such access, the State has to demonstrate
that every effort has been made to use all the resources at its disposal in an
effort to satisfy, as a matter of priority, those minimum obligations. This
follows from Article 2.1 of the Covenant, which obliges a State party to take
the necessary steps to the maximum of its available resources, as previously
pointed out by the Committee in its General Comment No. 3, paragraph 10. A
State claiming that it is unable to carry out its obligation for reasons beyond
its control therefore has the burden of proving that this is the case and that
it has unsuccessfully sought to obtain international support to ensure the
availability and accessibility of the necessary food.
18.
Furthermore, any discrimination in access to food, as well as to means and
entitlements for its procurement, on the grounds of race, colour, sex,
language, age, religion, political or other opinion, national or social origin,
property, birth or other status with the purpose or effect of nullifying or
impairing the equal enjoyment or exercise of economic, social and cultural
rights constitutes a violation of the Covenant.
19.
Violations of the right to food can occur through the direct action of States
or other entities insufficiently regulated by States. These include: the formal
repeal or suspension of legislation necessary for the continued enjoyment of
the right to food; denial of access to food to particular individuals or
groups, whether the discrimination is based on legislation or is pro-active;
the prevention of access to humanitarian food aid in internal conflicts or
other emergency situations; adoption of legislation or policies which are
manifestly incompatible with pre-existing legal obligations relating to the
right to food; and failure to regulate activities of individuals or groups so
as to prevent them from violating the right to food of others, or the failure
of a State to take into account its international legal obligations regarding
the right to food when entering into agreements with other States or with
international organizations.
20.
While only States are parties to the Covenant and are thus ultimately
accountable for compliance with it, all members of society - individuals,
families, local communities, non-governmental organizations, civil society
organizations, as well as the private business sector - have responsibilities
in the realization of the right to adequate food. The State should provide an
environment that facilitates implementation of these responsibilities. The private
business sector – national and transnational - should pursue its activities
within the framework of a code of conduct conducive to respect of the right to
adequate food, agreed upon jointly with the Government and civil society.
Implementation
at the national level
21. The
most appropriate ways and means of implementing the right to adequate food will
inevitably vary significantly from one State party to another. Every State will
have a margin of discretion in choosing its own approaches, but the Covenant
clearly requires that each State party take whatever steps are necessary to
ensure that everyone is free from hunger and as soon as possible can enjoy the
right to adequate food. This will require the adoption of a national strategy
to ensure food and nutrition security for all, based on human rights principles
that define the objectives, and the formulation of policies and corresponding
benchmarks. It should also identify the resources available to meet the
objectives and the most cost-effective way of using them.
22. The
strategy should be based on a systematic identification of policy measures and
activities relevant to the situation and context, as derived from the normative
content of the right to adequate food and spelled out in relation to the levels
and nature of State parties' obligations referred to in paragraph 15 of the
present general comment. This will facilitate coordination between ministries
and regional and local authorities and ensure that related policies and
administrative decisions are in compliance with the obligations under article
11 of the Covenant.
23. The
formulation and implementation of national strategies for the right to food
requires full compliance with the principles of accountability, transparency,
people's participation, decentralization, legislative capacity and the
independence of the judiciary. Good governance is essential to the realization
of all human rights, including the elimination of poverty and ensuring a
satisfactory livelihood for all.
24.
Appropriate institutional mechanisms should be devised to secure a
representative process towards the formulation of a strategy, drawing on all
available domestic expertise relevant to food and nutrition. The strategy
should set out the responsibilities and time-frame for the implementation of
the necessary measures.
25. The
strategy should address critical issues and measures in regard to all aspects
of the food system, including the production, processing, distribution,
marketing and consumption of safe food, as well as parallel measures in the
fields of health, education, employment and social security. Care should be
taken to ensure the most sustainable management and use of natural and other
resources for food at the national, regional, local and household levels.
26. The
strategy should give particular attention to the need to prevent discrimination
in access to food or resources for food. This should include: guarantees of
full and equal access to economic resources, particularly for women, including
the right to inheritance and the ownership of land and other property, credit,
natural resources and appropriate technology; measures to respect and protect
self-employment and work which provides a remuneration ensuring a decent living
for wage earners and their families (as stipulated in article 7 (a) (ii) of the
Covenant); maintaining registries on rights in land (including forests).
27. As
part of their obligations to protect people's resource base for food, States
parties should take appropriate steps to ensure that activities of the private
business sector and civil society are in conformity with the right to food.
28. Even
where a State faces severe resource constraints, whether caused by a process of
economic adjustment, economic recession, climatic conditions or other factors,
measures should be undertaken to ensure that the right to adequate food is
especially fulfilled for vulnerable population groups and individuals.
Benchmarks
and framework legislation
29. In
implementing the country-specific strategies referred to above, States should
set verifiable benchmarks for subsequent national and international monitoring.
In this connection, States should consider the adoption of a framework law
as a major instrument in the implementation of the national strategy concerning
the right to food. The framework law should include provisions on its purpose;
the targets or goals to be achieved and the time-frame to be set for the
achievement of those targets; the means by which the purpose could be achieved
described in broad terms, in particular the intended collaboration with civil
society and the private sector and with international organizations;
institutional responsibility for the process; and the national mechanisms for
its monitoring, as well as possible recourse procedures. In developing the
benchmarks and framework legislation, States parties should actively involve
civil society organizations.
30.
Appropriate United Nations programmes and agencies should assist, upon request,
in drafting the framework legislation and in reviewing the sectoral
legislation. FAO, for example, has considerable expertise and accumulated
knowledge concerning legislation in the field of food and agriculture. The
United Nations Children's Fund (UNICEF) has equivalent expertise concerning
legislation with regard to the right to adequate food for infants and young
children through maternal and child protection including legislation to enable
breast-feeding, and with regard to the regulation of marketing of breast milk
substitutes.
Monitoring
31.
States parties shall develop and maintain mechanisms to monitor progress
towards the realization of the right to adequate food for all, to identify the
factors and difficulties affecting the degree of implementation of their
obligations, and to facilitate the adoption of corrective legislation and
administrative measures, including measures to implement their obligations
under articles 2.1 and 23 of the Covenant.
Remedies
and accountability
32. Any
person or group who is a victim of a violation of the right to adequate food
should have access to effective judicial or other appropriate remedies at both
national and international levels. All victims of such violations are entitled
to adequate reparation, which may take the form of restitution, compensation,
satisfaction or guarantees of non-repetition. National Ombudsmen and human
rights commissions should address violations of the right to food.
33. The
incorporation in the domestic legal order of international instruments
recognizing the right to food, or recognition of their applicability, can
significantly enhance the scope and effectiveness of remedial measures and
should be encouraged in all cases. Courts would then be empowered to adjudicate
violations of the core content of the right to food by direct reference to
obligations under the Covenant.
34.
Judges and other members of the legal profession are invited to pay greater
attention to violations of the right to food in the exercise of their
functions.
35.
States parties should respect and protect the work of human rights advocates
and other members of civil society who assist vulnerable groups in the
realization of their right to adequate food.
International
obligations
States
parties
36. In
the spirit of article 56 of the Charter of the United Nations, the specific
provisions contained in articles 11, 2.1, and 23 of the Covenant and the Rome
Declaration of the World Food Summit, States parties should recognize the
essential role of international cooperation and comply with their commitment to
take joint and separate action to achieve the full realization of the right to
adequate food. In implementing this commitment, States parties should take
steps to respect the enjoyment of the right to food in other countries, to
protect that right, to facilitate access to food and to provide the necessary
aid when required. States parties should, in international agreements whenever
relevant, ensure that the right to adequate food is given due attention and
consider the development of further international legal instruments to that
end.
37.
States parties should refrain at all times from food embargoes or similar
measures which endanger conditions for food production and access to food in
other countries. Food should never be used as an instrument of political and
economic pressure. In this regard, the Committee recalls its position, stated
in its General Comment No. 8, on the relationship between economic sanctions
and respect for economic, social and cultural rights.
States
and international organizations
38.
States have a joint and individual responsibility, in accordance with the
Charter of the United Nations, to cooperate in providing disaster relief and
humanitarian assistance in times of emergency, including assistance to refugees
and internally displaced persons. Each State should contribute to this task in
accordance with its ability. The role of the World Food Programme (WFP) and the
Office of the United Nations High Commissioner for Refugees (UNHCR), and
increasingly that of UNICEF and FAO is of particular importance in this respect
and should be strengthened. Priority in food aid should be given to the most
vulnerable populations.
39. Food
aid should, as far as possible, be provided in ways which do not adversely
affect local producers and local markets, and should be organized in ways that
facilitate the return to food self-reliance of the beneficiaries. Such aid
should be based on the needs of the intended beneficiaries. Products included
in international food trade or aid programmes must be safe and culturally
acceptable to the recipient population.
The
United Nations and other international organizations
40. The
role of the United Nations agencies, including through the United Nations
Development Assistance Framework (UNDAF) at the country level, in promoting the
realization of the right to food is of special importance. Coordinated efforts
for the realization of the right to food should be maintained to enhance
coherence and interaction among all the actors concerned, including the various
components of civil society. The food organizations, FAO, WFP and the
International Fund for Agricultural Development (IFAD) in conjunction with the
United Nations Development Programme (UNDP), UNICEF, the World Bank and the
regional development banks, should cooperate more effectively, building on
their respective expertise, on the implementation of the right to food at the
national level, with due respect to their individual mandates.
41. The international financial institutions, notably the International Monetary Fund (IMF) and the World Bank, should pay greater attention to the protection of the right to food in their lending policies and credit agreements and in international measures to deal with the debt crisis. Care should be taken, in line with the Committee's General Comment No. 2, paragraph 9, in any structural adjustment programme to ensure that the right to food is protected.
The right to education (Art.13) : .
08/12/99. E/C.12/1999/10, CESCR General comment 13. (General Comments)
Twenty-first session 15 November-3 December 1999
1.
Education is both a human right in itself and an indispensable means of
realizing other human rights. As an empowerment right, education is the primary
vehicle by which economically and socially marginalized adults and children can
lift themselves out of poverty and obtain the means to participate fully in
their communities. Education has a vital role in empowering women, safeguarding
children from exploitative and hazardous labour and sexual exploitation, promoting
human rights and democracy, protecting the environment, and controlling
population growth. Increasingly, education is recognized as one of the best
financial investments States can make. But the importance of education is not
just practical: a well-educated, enlightened and active mind, able to wander
freely and widely, is one of the joys and rewards of human existence.
2. The
International Covenant on Economic, Social and Cultural Rights (ICESCR) devotes
two articles to the right to education, articles 13 and 14. Article 13, the
longest provision in the Covenant, is the most wide-ranging and comprehensive
article on the right to education in international human rights law. The
Committee has already adopted General Comment 11 on article 14 (plans of action
for primary education); General Comment 11 and the present general comment are
complementary and should be considered together. The Committee is aware that
for millions of people throughout the world, the enjoyment of the right to
education remains a distant goal. Moreover, in many cases, this goal is
becoming increasingly remote. The Committee is also conscious of the formidable
structural and other obstacles impeding the full implementation of article 13
in many States parties.
3. With
a view to assisting States parties' implementation of the Covenant and the
fulfilment of their reporting obligations, this general comment focuses on the
normative content of article 13 (Part I, paras. 4-42), some of the obligations
arising from it (Part II, paras. 43-57), and some illustrative violations (Part
II, paras. 58-59). Part III briefly remarks upon the obligations of actors
other than States parties. The general comment is based upon the Committee's
experience in examining States parties, reports over many years.
I. NORMATIVE CONTENT OF ARTICLE 13
Article 13 (1): Aims and objectives of education
4.
States parties agree that all education, whether public or private, formal or
non-formal, shall be directed towards the aims and objectives identified in
article 13 (1). The Committee notes that these educational objectives reflect
the fundamental purposes and principles of the United Nations as enshrined in
Articles 1 and 2 of the Charter. For the most part, they are also found in
article 26 (2) of the Universal Declaration of Human Rights, although article
13 (1) adds to the Declaration in three respects: education shall be directed
to the human personality's "sense of dignity", it shall "enable
all persons to participate effectively in a free society", and it shall
promote understanding among all "ethnic" groups, as well as nations
and racial and religious groups. Of those educational objectives which are
common to article 26 (2) of the Universal Declaration of Human Rights and
article 13 (1) of the Covenant, perhaps the most fundamental is that
"education shall be directed to the full development of the human
personality".
5. The
Committee notes that since the General Assembly adopted the Covenant in 1966,
other international instruments have further elaborated the objectives to which
education should be directed. Accordingly, the Committee takes the view that
States parties are required to ensure that education conforms to the aims and
objectives identified in article 13 (1), as interpreted in the light of the
World Declaration on Education for All (Jomtien, Thailand, 1990) (art. 1), the
Convention on the Rights of the Child (art. 29 (1)), the Vienna Declaration and
Programme of Action (Part I, para. 33 and Part II, para. 80), and the Plan of
Action for the United Nations Decade for Human Rights Education (para. 2).
While all these texts closely correspond to article 13 (1) of the Covenant,
they also include elements which are not expressly provided for in article 13
(1), such as specific references to gender equality and respect for the
environment. These new elements are implicit in, and reflect a contemporary
interpretation of article 13 (1). The Committee obtains support for this point
of view from the widespread endorsement that the previously mentioned texts
have received from all regions of the world. 2/
Article
13 (2): The right to receive an education - some general remarks
6. While
the precise and appropriate application of the terms will depend upon the
conditions prevailing in a particular State party, education in all its forms
and at all levels shall exhibit the following interrelated and essential
features: 3/
(a) Availability
- functioning educational institutions and programmes have to be available in
sufficient quantity within the jurisdiction of the State party. What they
require to function depends upon numerous factors, including the developmental
context within which they operate; for example, all institutions and programmes
are likely to require buildings or other protection from the elements,
sanitation facilities for both sexes, safe drinking water, trained teachers
receiving domestically competitive salaries, teaching materials, and so on;
while some will also require facilities such as a library, computer facilities and
information technology;
(b) Accessibility
- educational institutions and programmes have to be accessible to everyone,
without discrimination, within the jurisdiction of the State party.
Accessibility has three overlapping dimensions:
Non-discrimination
- education must be accessible to all, especially the most vulnerable groups,
in law and fact, without discrimination on any of the prohibited grounds (see
paras. 31-37 on non-discrimination);
Physical
accessibility - education has to be within safe physical reach, either by
attendance at some reasonably convenient geographic location (e.g. a
neighbourhood school) or via modern technology (e.g. access to a "distance
learning" programme);
Economic
accessibility - education has to be affordable to all. This dimension of
accessibility is subject to the differential wording of article 13 (2) in
relation to primary, secondary and higher education: whereas primary education
shall be available "free to all", States parties are required to
progressively introduce free secondary and higher education;
(c) Acceptability
- the form and substance of education, including curricula and teaching
methods, have to be acceptable (e.g. relevant, culturally appropriate and of
good quality) to students and, in appropriate cases, parents; this is subject
to the educational objectives required by article 13 (1) and such minimum
educational standards as may be approved by the State (see art. 13 (3) and
(4));
(d) Adaptability
- education has to be flexible so it can adapt to the needs of changing
societies and communities and respond to the needs of students within their
diverse social and cultural settings.
7. When
considering the appropriate application of these "interrelated and
essential features" the best interests of the student shall be a primary
consideration.
Article
13 (2) (a): The right to primary education
8.
Primary education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its forms
and at all levels. 4/
9. The
Committee obtains guidance on the proper interpretation of the term
"primary education" from the World Declaration on Education for All
which states: "The main delivery system for the basic education of
children outside the family is primary schooling. Primary education must be
universal, ensure that the basic learning needs of all children are satisfied,
and take into account the culture, needs and opportunities of the
community" (art. 5). "[B]asic learning needs" are defined in
article 1 of the World Declaration. 5/
While
primary education is not synonymous with basic education, there is a close
correspondence between the two. In this regard, the Committee endorses the
position taken by UNICEF: "Primary education is the most important
component of basic education." 6/
10. As
formulated in article 13 (2) (a), primary education has two distinctive
features: it is "compulsory" and "available free to all".
For the Committee's observations on both terms, see paragraphs 6 and 7 of
General Comment 11 on article 14 of the Covenant.
Article
13 (2) (b): The right to secondary education
11.
Secondary education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its forms
and at all levels. 7/
12.
While the content of secondary education will vary among States parties and
over time, it includes completion of basic education and consolidation of the
foundations for life-long learning and human development. It prepares students
for vocational and higher educational opportunities. 8/
Article
13 (2) (b) applies to secondary education "in its different forms",
thereby recognizing that secondary education demands flexible curricula and
varied delivery systems to respond to the needs of students in different social
and cultural settings. The Committee encourages "alternative"
educational programmes which parallel regular secondary school systems.
13.
According to article 13 (2) (b), secondary education "shall be made
generally available and accessible to all by every appropriate means, and in
particular by the progressive introduction of free education". The phrase
"generally available" signifies, firstly, that secondary education is
not dependent on a student's apparent capacity or ability and, secondly, that
secondary education will be distributed throughout the State in such a way that
it is available on the same basis to all. For the Committee's interpretation of
"accessible", see paragraph 6 above. The phrase "every
appropriate means" reinforces the point that States parties should adopt
varied and innovative approaches to the delivery of secondary education in
different social and cultural contexts.
14.
"[P]rogressive introduction of free education" means that while
States must prioritize the provision of free primary education, they also have
an obligation to take concrete steps towards achieving free secondary and
higher education. For the Committee's general observations on the meaning of
the word "free", see paragraph 7 of General Comment 11 on article 14.
Technical
and vocational education
15.
Technical and vocational education (TVE) forms part of both the right to
education and the right to work (art. 6 (2)). Article 13 (2) (b) presents TVE
as part of secondary education, reflecting the particular importance of TVE at
this level of education. Article 6 (2), however, does not refer to TVE in
relation to a specific level of education; it comprehends that TVE has a wider
role, helping "to achieve steady economic, social and cultural development
and full and productive employment". Also, the Universal Declaration of
Human Rights states that "[t]echnical and professional education shall be
made generally available" (art. 26 (1)). Accordingly, the Committee takes
the view that TVE forms an integral element of all levels of education. 9/
16. An
introduction to technology and to the world of work should not be confined to
specific TVE programmes but should be understood as a component of general
education. According to the UNESCO Convention on Technical and Vocational
Education (1989), TVE consists of "all forms and levels of the educational
process involving, in addition to general knowledge, the study of technologies
and related sciences and the acquisition of practical skills, know-how,
attitudes and understanding relating to occupations in the various sectors of
economic and social life" (art. 1 (a)). This view is also reflected in
certain ILO Conventions. 10/
Understood in this way, the right to TVE includes the following aspects:
(a) It
enables students to acquire knowledge and skills which contribute to their
personal development, self-reliance and employability and enhances the
productivity of their families and communities, including the State party's
economic and social development;
(b) It
takes account of the educational, cultural and social background of the
population concerned; the skills, knowledge and levels of qualification needed
in the various sectors of the economy; and occupational health, safety and
welfare;
(c)
Provides retraining for adults whose current knowledge and skills have become
obsolete owing to technological, economic, employment, social or other changes;
(d) It
consists of programmes which give students, especially those from developing
countries, the opportunity to receive TVE in other States, with a view to the
appropriate transfer and adaptation of technology;
(e) It
consists, in the context of the Covenant's non-discrimination and equality
provisions, of programmes which promote the TVE of women, girls, out-of-school
youth, unemployed youth, the children of migrant workers, refugees, persons
with disabilities and other disadvantaged groups.
Article
13 (2) (c): The right to higher education
17.
Higher education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its forms
at all levels. 11/
18.
While article 13 (2) (c) is formulated on the same lines as article 13 (2) (b),
there are three differences between the two provisions. Article 13 (2) (c) does
not include a reference to either education "in its different forms"
or specifically to TVE. In the Committee's opinion, these two omissions reflect
only a difference of emphasis between article 13 (2) (b) and (c). If higher
education is to respond to the needs of students in different social and
cultural settings, it must have flexible curricula and varied delivery systems,
such as distance learning; in practice, therefore, both secondary and higher
education have to be available "in different forms". As for the lack
of reference in article 13 (2) (c) to technical and vocational education, given
article 6 (2) of the Covenant and article 26 (1) of the Universal Declaration,
TVE forms an integral component of all levels of education, including higher
education. 12/
19. The
third and most significant difference between article 13 (2) (b) and (c) is
that while secondary education "shall be made generally available and
accessible to all", higher education "shall be made equally
accessible to all, on the basis of capacity". According to article 13 (2)
(c), higher education is not to be "generally available", but only
available "on the basis of capacity". The "capacity" of
individuals should be assessed by reference to all their relevant expertise and
experience.
20. So
far as the wording of article 13 (2) (b) and (c) is the same (e.g. "the
progressive introduction of free education"), see the previous comments on
article 13 (2) (b).
Article
13 (2) (d): The right to fundamental education
21.
Fundamental education includes the elements of availability, accessibility,
acceptability and adaptability which are common to education in all its forms
and at all levels. 13/
22. In
general terms, fundamental education corresponds to basic education as set out
in the World Declaration on Education For All. 14/
By virtue of article 13 (2) (d), individuals "who have not received or
completed the whole period of their primary education" have a right to
fundamental education, or basic education as defined in the World Declaration
on Education For All.
23.
Since everyone has the right to the satisfaction of their "basic learning
needs" as understood by the World Declaration, the right to fundamental
education is not confined to those "who have not received or completed the
whole period of their primary education". The right to fundamental
education extends to all those who have not yet satisfied their "basic
learning needs".
24. It
should be emphasized that enjoyment of the right to fundamental education is
not limited by age or gender; it extends to children, youth and adults,
including older persons. Fundamental education, therefore, is an integral
component of adult education and life-long learning. Because fundamental
education is a right of all age groups, curricula and delivery systems must be
devised which are suitable for students of all ages.
Article
13 (2) (e): A school system; adequate fellowship system; material conditions of
teaching staff
25. The
requirement that the "development of a system of schools at all levels
shall be actively pursued" means that a State party is obliged to have an
overall developmental strategy for its school system. The strategy must
encompass schooling at all levels, but the Covenant requires States parties to
prioritize primary education (see para. 51). "[A]ctively pursued"
suggests that the overall strategy should attract a degree of governmental
priority and, in any event, must be implemented with vigour.
26. The
requirement that "an adequate fellowship system shall be established"
should be read with the Covenant's non-discrimination and equality provisions;
the fellowship system should enhance equality of educational access for
individuals from disadvantaged groups.
27.
While the Covenant requires that "the material conditions of teaching
staff shall be continuously improved", in practice the general working
conditions of teachers have deteriorated, and reached unacceptably low levels,
in many States parties in recent years. Not only is this inconsistent with article
13 (2) (e), but it is also a major obstacle to the full realization of
students' right to education. The Committee also notes the relationship between
articles 13 (2) (e), 2 (2), 3 and 6-8 of the Covenant, including the right of
teachers to organize and bargain collectively; draws the attention of States
parties to the joint UNESCO-ILO Recommendation Concerning the Status of
Teachers (1966) and the UNESCO Recommendation Concerning the Status of
Higher-Education Teaching Personnel (1997); and urges States parties to report
on measures they are taking to ensure that all teaching staff enjoy the
conditions and status commensurate with their role.
Article
13 (3) and (4): The right to educational freedom
28.
Article 13 (3) has two elements, one of which is that States parties undertake
to respect the liberty of parents and guardians to ensure the religious and
moral education of their children in conformity with their own convictions. 15/
The
Committee is of the view that this element of article 13 (3) permits public
school instruction in subjects such as the general history of religions and
ethics if it is given in an unbiased and objective way, respectful of the
freedoms of opinion, conscience and expression. It notes that public education
that includes instruction in a particular religion or belief is inconsistent
with article 13 (3) unless provision is made for non-discriminatory exemptions
or alternatives that would accommodate the wishes of parents and guardians.
29. The
second element of article 13 (3) is the liberty of parents and guardians to
choose other than public schools for their children, provided the schools conform
to "such minimum educational standards as may be laid down or approved by
the State". This has to be read with the complementary provision, article
13 (4), which affirms "the liberty of individuals and bodies to establish
and direct educational institutions", provided the institutions conform to
the educational objectives set out in article 13 (1) and certain minimum
standards. These minimum standards may relate to issues such as admission,
curricula and the recognition of certificates. In their turn, these standards
must be consistent with the educational objectives set out in article 13 (1).
30.
Under article 13 (4), everyone, including non-nationals, has the liberty to
establish and direct educational institutions. The liberty also extends to
"bodies", i.e. legal persons or entities. It includes the right to
establish and direct all types of educational institutions, including
nurseries, universities and institutions for adult education. Given the
principles of non-discrimination, equal opportunity and effective participation
in society for all, the State has an obligation to ensure that the liberty set
out in article 13 (4) does not lead to extreme disparities of educational
opportunity for some groups in society.
Article
13: Special topics of broad application
Non-discrimination
and equal treatment
31. The
prohibition against discrimination enshrined in article 2 (2) of the Covenant
is subject to neither progressive realization nor the availability of
resources; it applies fully and immediately to all aspects of education and
encompasses all internationally prohibited grounds of discrimination. The
Committee interprets articles 2 (2) and 3 in the light of the UNESCO Convention
against Discrimination in Education, the relevant provisions of the Convention
on the Elimination of All Forms of Discrimination against Women, the
International Convention on the Elimination of All Forms of Racial
Discrimination, the Convention on the Rights of the Child and the ILO
Indigenous and Tribal Peoples Convention, 1989 (Convention No. 169), and wishes
to draw particular attention to the following issues.
32. The
adoption of temporary special measures intended to bring about de facto
equality for men and women and for disadvantaged groups is not a violation of
the right to non-discrimination with regard to education, so long as such
measures do not lead to the maintenance of unequal or separate standards for
different groups, and provided they are not continued after the objectives for
which they were taken have been achieved.
33. In
some circumstances, separate educational systems or institutions for groups
defined by the categories in article 2 (2) shall be deemed not to constitute a
breach of the Covenant. In this regard, the Committee affirms article 2 of the
UNESCO Convention against Discrimination in Education (1960). 16/
34. The
Committee takes note of article 2 of the Convention on the Rights of the Child
and article 3 (e) of the UNESCO Convention against Discrimination in Education
and confirms that the principle of non-discrimination extends to all persons of
school age residing in the territory of a State party, including non-nationals,
and irrespective of their legal status.
35.
Sharp disparities in spending policies that result in differing qualities of
education for persons residing in different geographic locations may constitute
discrimination under the Covenant.
36. The
Committee affirms paragraph 35 of its General Comment 5, which addresses the
issue of persons with disabilities in the context of the right to education,
and paragraphs 36-42 of its General Comment 6, which address the issue of older
persons in relation to articles 13-15 of the Covenant.
37.
States parties must closely monitor education - including all relevant
policies, institutions, programmes, spending patterns and other practices - so
as to identify and take measures to redress any de facto discrimination.
Educational data should be disaggregated by the prohibited grounds of
discrimination.
Academic
freedom and institutional autonomy 17/
38. In
the light of its examination of numerous States parties' reports, the Committee
has formed the view that the right to education can only be enjoyed if
accompanied by the academic freedom of staff and students. Accordingly, even
though the issue is not explicitly mentioned in article 13, it is appropriate
and necessary for the Committee to make some observations about academic
freedom. The following remarks give particular attention to institutions of
higher education because, in the Committee's experience, staff and students in
higher education are especially vulnerable to political and other pressures
which undermine academic freedom. The Committee wishes to emphasize, however,
that staff and students throughout the education sector are entitled to
academic freedom and many of the following observations have general
application.
39.
Members of the academic community, individually or collectively, are free to
pursue, develop and transmit knowledge and ideas, through research, teaching,
study, discussion, documentation, production, creation or writing. Academic
freedom includes the liberty of individuals to express freely opinions about
the institution or system in which they work, to fulfil their functions without
discrimination or fear of repression by the State or any other actor, to
participate in professional or representative academic bodies, and to enjoy all
the internationally recognized human rights applicable to other individuals in
the same jurisdiction. The enjoyment of academic freedom carries with it
obligations, such as the duty to respect the academic freedom of others, to
ensure the fair discussion of contrary views, and to treat all without
discrimination on any of the prohibited grounds.
40. The
enjoyment of academic freedom requires the autonomy of institutions of higher
education. Autonomy is that degree of self-governance necessary for effective
decision-making by institutions of higher education in relation to their
academic work, standards, management and related activities. Self-governance,
however, must be consistent with systems of public accountability, especially
in respect of funding provided by the State. Given the substantial public
investments made in higher education, an appropriate balance has to be struck
between institutional autonomy and accountability. While there is no single
model, institutional arrangements should be fair, just and equitable, and as
transparent and participatory as possible.
Discipline
in schools 18/
41. In
the Committee's view, corporal punishment is inconsistent with the fundamental
guiding principle of international human rights law enshrined in the Preambles
to the Universal Declaration of Human Rights and both Covenants: the dignity of
the individual. 19/
Other aspects of school discipline may also be inconsistent with human dignity,
such as public humiliation. Nor should any form of discipline breach other
rights under the Covenant, such as the right to food. A State party is required
to take measures to ensure that discipline which is inconsistent with the
Covenant does not occur in any public or private educational institution within
its jurisdiction. The Committee welcomes initiatives taken by some States
parties which actively encourage schools to introduce "positive",
non-violent approaches to school discipline.
Limitations
on article 13
42. The
Committee wishes to emphasize that the Covenant's limitations clause, article
4, is primarily intended to be protective of the rights of individuals rather
than permissive of the imposition of limitations by the State. Consequently, a
State party which closes a university or other educational institution on
grounds such as national security or the preservation of public order has the
burden of justifying such a serious measure in relation to each of the elements
identified in article 4.
II. STATES PARTIES' OBLIGATIONS AND VIOLATIONS
General legal obligations
43.While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States
parties various obligations which are of immediate effect. 20/
States
parties have immediate obligations in relation to the right to education, such
as the "guarantee" that the right "will be exercised without
discrimination of any kind" (art. 2 (2)) and the obligation "to take
steps" (art. 2 (1)) towards the full realization of article 13. 21/
Such
steps must be "deliberate, concrete and targeted" towards the full
realization of the right to education.
44.The
realization of the right to education over time, that is
"progressively", should not be interpreted as depriving States
parties' obligations of all meaningful content. Progressive realization means
that States parties have a specific and continuing obligation "to move as
expeditiously and effectively as possible" towards the full realization of
article 13. 22/
45.There is a strong presumption of impermissibility of any retrogressive
measures taken in relation to the right to education, as well as other rights
enunciated in the Covenant. If any deliberately retrogressive measures are
taken, the State party has the burden of proving that they have been introduced
after the most careful consideration of all alternatives and that they are
fully justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the State party's maximum
available resources. 23/
46.The right to education, like all human rights, imposes three types or levels
of obligations on States parties: the obligations to respect, protect and
fulfil. In turn, the obligation to fulfil incorporates both an obligation to
facilitate and an obligation to provide.
47.The
obligation to respect requires States parties to avoid measures that hinder or
prevent the enjoyment of the right to education. The obligation to protect
requires States parties to take measures that prevent third parties from
interfering with the enjoyment of the right to education. The obligation to
fulfil (facilitate) requires States to take positive measures that enable and
assist individuals and communities to enjoy the right to education. Finally,
States parties have an obligation to fulfil (provide) the right to education.
As a general rule, States parties are obliged to fulfil (provide) a specific
right in the Covenant when an individual or group is unable, for reasons beyond
their control, to realize the right themselves by the means at their disposal.
However, the extent of this obligation is always subject to the text of the
Covenant.
48.In this respect, two features of article 13 require emphasis. First, it is
clear that article 13 regards States as having principal responsibility for the
direct provision of education in most circumstances; States parties recognize,
for example, that the "development of a system of schools at all levels
shall be actively pursued" (art. 13 (2) (e)). Secondly, given the
differential wording of article 13 (2) in relation to primary, secondary,
higher and fundamental education, the parameters of a State party's obligation
to fulfil (provide) are not the same for all levels of education. Accordingly,
in light of the text of the Covenant, States parties have an enhanced
obligation to fulfil (provide) regarding the right to education, but the extent
of this obligation is not uniform for all levels of education. The Committee
observes that this interpretation of the obligation to fulfil (provide) in
relation to article 13 coincides with the law and practice of numerous States
parties.
Specific legal obligations
49.States parties are required to ensure that curricula, for all levels of the
educational system, are directed to the objectives identified in article 13 (1).
24/
They are also obliged to establish and maintain a transparent and effective
system which monitors whether or not education is, in fact, directed to the
educational objectives set out in article 13 (1).
50.In
relation to article 13 (2), States have obligations to respect, protect and
fulfil each of the "essential features" (availability, accessibility,
acceptability, adaptability) of the right to education. By way of illustration,
a State must respect the availability of education by not closing private
schools; protect the accessibility of education by ensuring that third parties,
including parents and employers, do not stop girls from going to school; fulfil
(facilitate) the acceptability of education by taking positive measures to
ensure that education is culturally appropriate for minorities and indigenous
peoples, and of good quality for all; fulfil (provide) the adaptability of
education by designing and providing resources for curricula which reflect the
contemporary needs of students in a changing world; and fulfil (provide) the
availability of education by actively developing a system of schools, including
building classrooms, delivering programmes, providing teaching materials,
training teachers and paying them domestically competitive salaries.
51.As already observed, the obligations of States parties in relation to
primary, secondary, higher and fundamental education are not identical. Given
the wording of article 13 (2), States parties are obliged to prioritize the
introduction of compulsory, free primary education. 25/
This interpretation of article 13 (2) is reinforced by the priority accorded to
primary education in article 14. The obligation to provide primary education
for all is an immediate duty of all States parties.
52.In
relation to article 13 (2) (b)-(d), a State party has an immediate obligation
"to take steps" (art. 2 (1)) towards the realization of secondary,
higher and fundamental education for all those within its jurisdiction. At a
minimum, the State party is required to adopt and implement a national
educational strategy which includes the provision of secondary, higher and
fundamental education in accordance with the Covenant. This strategy should
include mechanisms, such as indicators and benchmarks on the right to
education, by which progress can be closely monitored.
53.Under article 13 (2) (e), States parties are obliged to ensure that an
educational fellowship system is in place to assist disadvantaged groups. 26/
The obligation to pursue actively the "development of a system of schools
at all levels" reinforces the principal responsibility of States parties
to ensure the direct provision of the right to education in most circumstances.
27/
54.States
parties are obliged to establish "minimum educational standards" to
which all educational institutions established in accordance with article 13
(3) and (4) are required to conform. They must also maintain a transparent and
effective system to monitor such standards. A State party has no obligation to
fund institutions established in accordance with article 13 (3) and (4);
however, if a State elects to make a financial contribution to private
educational institutions, it must do so without discrimination on any of the
prohibited grounds.
55.States parties have an obligation to ensure that communities and families
are not dependent on child labour. The Committee especially affirms the
importance of education in eliminating child labour and the obligations set out
in article 7 (2) of the Worst Forms of Child Labour Convention, 1999
(Convention No. 182). 28/
Additionally, given article 2 (2), States parties are obliged to remove gender
and other stereotyping which impedes the educational access of girls, women and
other disadvantaged groups.
56.In
its General Comment 3, the Committee drew attention to the obligation of all
States parties to take steps, "individually and through international
assistance and cooperation, especially economic and technical", towards
the full realization of the rights recognized in the Covenant, such as the
right to education. 29/
Articles 2 (1) and 23 of the Covenant, Article 56 of the Charter of the United
Nations, article 10 of the World Declaration on Education for All, and Part I,
paragraph 34 of the Vienna Declaration and Programme of Action all reinforce
the obligation of States parties in relation to the provision of international
assistance and cooperation for the full realization of the right to education.
In relation to the negotiation and ratification of international agreements,
States parties should take steps to ensure that these instruments do not
adversely impact upon the right to education. Similarly, States parties have an
obligation to ensure that their actions as members of international
organizations, including international financial institutions, take due account
of the right to education.
57.In its General Comment 3, the Committee confirmed that States parties have
"a minimum core obligation to ensure the satisfaction of, at the very
least, minimum essential levels" of each of the rights enunciated in the
Covenant, including "the most basic forms of education". In the
context of article 13, this core includes an obligation: to ensure the right of
access to public educational institutions and programmes on a
non-discriminatory basis; to ensure that education conforms to the objectives
set out in article 13 (1); to provide primary education for all in accordance
with article 13 (2) (a); to adopt and implement a national educational strategy
which includes provision for secondary, higher and fundamental education; and
to ensure free choice of education without interference from the State or third
parties, subject to conformity with "minimum educational standards"
(art. 13 (3) and (4)).
Violations
58.When the normative content of article 13 (Part I) is applied to the general
and specific obligations of States parties (Part II), a dynamic process is set
in motion which facilitates identification of violations of the right to
education. Violations of article 13 may occur through the direct action of
States parties (acts of commission) or through their failure to take steps
required by the Covenant (acts of omission).
59.By
way of illustration, violations of article 13 include: the introduction or
failure to repeal legislation which discriminates against individuals or
groups, on any of the prohibited grounds, in the field of education; the
failure to take measures which address de facto educational discrimination; the
use of curricula inconsistent with the educational objectives set out in
article 13 (1); the failure to maintain a transparent and effective system to
monitor conformity with article 13 (1); the failure to introduce, as a matter
of priority, primary education which is compulsory and available free to all;
the failure to take "deliberate, concrete and targeted" measures
towards the progressive realization of secondary, higher and fundamental
education in accordance with article 13 (2) (b)-(d); the prohibition of private
educational institutions; the failure to ensure private educational
institutions conform to the "minimum educational standards" required
by article 13 (3) and (4); the denial of academic freedom of staff and
students; the closure of educational institutions in times of political tension
in non-conformity with article 4.
III. OBLIGATIONS OF ACTORS OTHER THAN STATES
PARTIES
60. Given article 22 of the Covenant, the role of the United Nations agencies,
including at the country level through the United Nations Development
Assistance Framework (UNDAF), is of special importance in relation to the
realization of article 13. Coordinated efforts for the realization of the right
to education should be maintained to improve coherence and interaction among
all the actors concerned, including the various components of civil society.
UNESCO, the United Nations Development Programme, UNICEF, ILO, the World Bank,
the regional development banks, the International Monetary Fund and other
relevant bodies within the United Nations system should enhance their
cooperation for the implementation of the right to education at the national
level, with due respect to their specific mandates, and building on their
respective expertise. In particular, the international financial institutions,
notably the World Bank and IMF, should pay greater attention to the protection
of the right to education in their lending policies, credit agreements,
structural adjustment programmes and measures taken in response to the debt
crisis. 30/
When examining the reports of States parties, the Committee will consider the
effects of the assistance provided by all actors other than States parties on
the ability of States to meet their obligations under article 13. The adoption
of a human rights-based approach by United Nations specialized agencies,
programmes and bodies will greatly facilitate implementation of the right to
education.
The right to the highest attainable standard of health : . 11/08/2000.
E/C.12/2000/4, CESCR General comment 14. (General Comments)
COMMITTEE ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
Twenty-second session
Geneva, 25 April-12 May 2000
Agenda item 3
SUBSTANTIVE ISSUES ARISING IN THE IMPLEMENTATION OF
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS
General Comment No. 14 (2000)
The right to the
highest attainable standard of health
(article 12 of the International Covenant on
Economic, Social and Cultural Rights)
1. Health is a fundamental human right indispensable for the exercise of other
human rights. Every human being is entitled to the enjoyment of the highest
attainable standard of health conducive to living a life in dignity. The
realization of the right to health may be pursued through numerous,
complementary approaches, such as the formulation of health policies, or the
implementation of health programmes developed by the World Health Organization
(WHO), or the adoption of specific legal instruments. Moreover, the right to
health includes certain components which are legally enforceable. (1)
2. The
human right to health is recognized in numerous international instruments.
Article 25.1 of the Universal Declaration of Human Rights affirms:
"Everyone has the right to a standard of living adequate for the health of
himself and of his family, including food, clothing, housing and medical care
and necessary social services". The International Covenant on Economic,
Social and Cultural Rights provides the most comprehensive article on the right
to health in international human rights law. In accordance with article 12.1 of
the Covenant, States parties recognize "the right of everyone to the
enjoyment of the highest attainable standard of physical and mental
health", while article 12.2 enumerates, by way of illustration, a number
of "steps to be taken by the States parties ... to achieve the full
realization of this right". Additionally, the right to health is
recognized, inter alia, in article 5 (e) (iv) of the International
Convention on the Elimination of All Forms of Racial Discrimination of 1965, in
articles 11.1 (f) and 12 of the Convention on the Elimination of All Forms of
Discrimination against Women of 1979 and in article 24 of the Convention on the
Rights of the Child of 1989. Several regional human rights instruments also
recognize the right to health, such as the European Social Charter of 1961 as
revised (art. 11), the African Charter on Human and Peoples' Rights of 1981
(art. 16) and the Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights of 1988 (art. 10).
Similarly, the right to health has been proclaimed by the Commission on Human
Rights, (2)
as well as in the Vienna Declaration and Programme of Action of 1993 and other
international instruments. (3)
3. The
right to health is closely related to and dependent upon the realization of
other human rights, as contained in the International Bill of Rights, including
the rights to food, housing, work, education, human dignity, life,
non-discrimination, equality, the prohibition against torture, privacy, access
to information, and the freedoms of association, assembly and movement. These
and other rights and freedoms address integral components of the right to
health.
4. In
drafting article 12 of the Covenant, the Third Committee of the United Nations
General Assembly did not adopt the definition of health contained in the
preamble to the Constitution of WHO, which conceptualizes health as "a
state of complete physical, mental and social well-being and not merely the
absence of disease or infirmity". However, the reference in article 12.1
of the Covenant to "the highest attainable standard of physical and mental
health" is not confined to the right to health care. On the contrary, the drafting
history and the express wording of article 12.2 acknowledge that the right to
health embraces a wide range of socio-economic factors that promote conditions
in which people can lead a healthy life, and extends to the underlying
determinants of health, such as food and nutrition, housing, access to safe and
potable water and adequate sanitation, safe and healthy working conditions, and
a healthy environment.
5. The
Committee is aware that, for millions of people throughout the world, the full
enjoyment of the right to health still remains a distant goal. Moreover, in
many cases, especially for those living in poverty, this goal is becoming
increasingly remote. The Committee recognizes the formidable structural and
other obstacles resulting from international and other factors beyond the
control of States that impede the full realization of article 12 in many States
parties.
6. With
a view to assisting States parties' implementation of the Covenant and the
fulfilment of their reporting obligations, this General Comment focuses on the
normative content of article 12 (Part I), States parties' obligations (Part
II), violations (Part III) and implementation at the national level (Part IV),
while the obligations of actors other than States parties are addressed in Part
V. The General Comment is based on the Committee's experience in examining
States parties' reports over many years.
I. NORMATIVE CONTENT OF ARTICLE 12
7. Article 12.1 provides a definition of the right to health, while article
12.2 enumerates illustrative, non-exhaustive examples of States parties'
obligations.
8. The
right to health is not to be understood as a right to be healthy. The
right to health contains both freedoms and entitlements. The freedoms include
the right to control one's health and body, including sexual and reproductive
freedom, and the right to be free from interference, such as the right to be
free from torture, non-consensual medical treatment and experimentation. By
contrast, the entitlements include the right to a system of health protection
which provides equality of opportunity for people to enjoy the highest
attainable level of health.
9. The
notion of "the highest attainable standard of health" in article 12.1
takes into account both the individual's biological and socio-economic
preconditions and a State's available resources. There are a number of aspects
which cannot be addressed solely within the relationship between States
and individuals; in particular, good health cannot be ensured by a State, nor
can States provide protection against every possible cause of human ill health.
Thus, genetic factors, individual susceptibility to ill health and the adoption
of unhealthy or risky lifestyles may play an important role with respect to an
individual's health. Consequently, the right to health must be understood as a
right to the enjoyment of a variety of facilities, goods, services and
conditions necessary for the realization of the highest attainable standard of
health.
10.
Since the adoption of the two International Covenants in 1966 the world health
situation has changed dramatically and the notion of health has undergone
substantial changes and has also widened in scope. More determinants of health
are being taken into consideration, such as resource distribution and gender
differences. A wider definition of health also takes into account such
socially-related concerns as violence and armed conflict. (4)
Moreover, formerly unknown diseases, such as Human Immunodeficiency Virus and
Acquired Immunodeficiency Syndrome (HIV/AIDS), and others that have become more
widespread, such as cancer, as well as the rapid growth of the world population,
have created new obstacles for the realization of the right to health which
need to be taken into account when interpreting article 12.
11. The
Committee interprets the right to health, as defined in article 12.1, as an
inclusive right extending not only to timely and appropriate health care
but also to the underlying determinants of health, such as access to safe and
potable water and adequate sanitation, an adequate supply of safe food,
nutrition and housing, healthy occupational and environmental conditions, and
access to health-related education and information, including on sexual and
reproductive health. A further important aspect is the participation of the
population in all health-related decision-making at the community, national and
international levels.
12. The
right to health in all its forms and at all levels contains the following
interrelated and essential elements, the precise application of which will
depend on the conditions prevailing in a particular State party:
(a)
Availability. Functioning public health and health-care facilities, goods
and services, as well as programmes, have to be available in sufficient
quantity within the State party. The precise nature of the facilities, goods
and services will vary depending on numerous factors, including the State
party's developmental level. They will include, however, the underlying
determinants of health, such as safe and potable drinking water and adequate
sanitation facilities, hospitals, clinics and other health-related buildings,
trained medical and professional personnel receiving domestically competitive
salaries, and essential drugs, as defined by the WHO Action Programme on
Essential Drugs. (5)
(b)
Accessibility. Health facilities, goods and services (6)
have to be accessible to everyone without discrimination, within the
jurisdiction of the State party. Accessibility has four overlapping dimensions:
Non-discrimination:
health facilities, goods and services must be accessible to all, especially the
most vulnerable or marginalized sections of the population, in law and in fact,
without discrimination on any of the prohibited grounds. (7)
Physical
accessibility: health facilities, goods and services must be within safe
physical reach for all sections of the population, especially vulnerable or
marginalized groups, such as ethnic minorities and indigenous populations, women,
children, adolescents, older persons, persons with disabilities and persons
with HIV/AIDS. Accessibility also implies that medical services and underlying
determinants of health, such as safe and potable water and adequate sanitation
facilities, are within safe physical reach, including in rural areas.
Accessibility further includes adequate access to buildings for persons with
disabilities.
Economic
accessibility (affordability): health facilities, goods and services must be
affordable for all. Payment for health-care services, as well as services
related to the underlying determinants of health, has to be based on the
principle of equity, ensuring that these services, whether privately or
publicly provided, are affordable for all, including socially disadvantaged
groups. Equity demands that poorer households should not be disproportionately
burdened with health expenses as compared to richer households.
Information
accessibility: accessibility includes the right to seek, receive and impart
information and ideas (8)
concerning health issues. However, accessibility of information should not
impair the right to have personal health data treated with confidentiality.
(c) Acceptability.
All health facilities, goods and services must be respectful of medical ethics
and culturally appropriate, i.e. respectful of the culture of individuals,
minorities, peoples and communities, sensitive to gender and life-cycle
requirements, as well as being designed to respect confidentiality and improve
the health status of those concerned.
(d)
Quality. As well as being culturally acceptable, health facilities, goods
and services must also be scientifically and medically appropriate and of good
quality. This requires, inter alia, skilled medical personnel,
scientifically approved and unexpired drugs and hospital equipment, safe
and potable water, and adequate sanitation.
13. The
non-exhaustive catalogue of examples in article 12.2 provides guidance in
defining the action to be taken by States. It gives specific generic examples
of measures arising from the broad definition of the right to health contained
in article 12.1, thereby illustrating the content of that right, as exemplified
in the following paragraphs. (9)
Article
12.2 (a). The right to maternal, child and reproductive health
14.
"The provision for the reduction of the stillbirth rate and of infant
mortality and for the healthy development of the child" (art. 12.2 (a)) (10)
may be understood as requiring measures to improve child and maternal health,
sexual and reproductive health services, including access to family planning,
pre- and post-natal care, (11)
emergency obstetric services and access to information, as well as to resources
necessary to act on that information. (12)
Article
12.2 (b). The right to healthy natural and workplace environments
15.
"The improvement of all aspects of environmental and industrial
hygiene" (art. 12.2 (b)) comprises, inter alia, preventive measures
in respect of occupational accidents and diseases; the requirement to ensure an
adequate supply of safe and potable water and basic sanitation; the
prevention and reduction of the population's exposure to harmful substances
such as radiation and harmful chemicals or other detrimental environmental
conditions that directly or indirectly impact upon human health. (13)
Furthermore, industrial hygiene refers to the minimization, so far as is
reasonably practicable, of the causes of health hazards inherent in the working
environment. (14)
Article 12.2 (b) also embraces adequate housing and safe and hygienic working
conditions, an adequate supply of food and proper nutrition, and discourages
the abuse of alcohol, and the use of tobacco, drugs and other
harmful substances.
Article
12.2 (c). The right to prevention, treatment and control of diseases
16.
"The prevention, treatment and control of epidemic, endemic, occupational
and other diseases" (art. 12.2 (c)) requires the establishment of
prevention and education programmes for behaviour-related health concerns such
as sexually transmitted diseases, in particular HIV/AIDS, and those adversely
affecting sexual and reproductive health, and the promotion of social
determinants of good health, such as environmental safety, education, economic
development and gender equity. The right to treatment includes the creation of
a system of urgent medical care in cases of accidents, epidemics and similar
health hazards, and the provision of disaster relief and humanitarian
assistance in emergency situations. The control of diseases refers to States'
individual and joint efforts to, inter alia, make available relevant
technologies, using and improving epidemiological surveillance and data
collection on a disaggregated basis, the implementation or enhancement of
immunization programmes and other strategies of infectious disease
control.
Article
12.2 (d). The right to health facilities, goods and services (15)
17.
"The creation of conditions which would assure to all medical service and
medical attention in the event of sickness" (art. 12.2 (d)), both physical
and mental, includes the provision of equal and timely access to basic
preventive, curative, rehabilitative health services and health education;
regular screening programmes; appropriate treatment of prevalent diseases,
illnesses, injuries and disabilities, preferably at community level; the
provision of essential drugs; and appropriate mental health treatment and care.
A further important aspect is the improvement and furtherance of participation
of the population in the provision of preventive and curative health services,
such as the organization of the health sector, the insurance system and, in
particular, participation in political decisions relating to the right to
health taken at both the community and national levels.
Article 12. Special topics of broad application
Non-discrimination and equal treatment
18. By
virtue of article 2.2 and article 3, the Covenant proscribes any discrimination
in access to health care and underlying determinants of health, as well as to
means and entitlements for their procurement, on the grounds of race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth, physical or mental disability, health status (including
HIV/AIDS), sexual orientation and civil, political, social or other status,
which has the intention or effect of nullifying or impairing the equal
enjoyment or exercise of the right to health. The Committee stresses that many
measures, such as most strategies and programmes designed to eliminate
health-related discrimination, can be pursued with minimum resource
implications through the adoption, modification or abrogation of legislation or
the dissemination of information. The Committee recalls General Comment No. 3,
paragraph 12, which states that even in times of severe resource constraints,
the vulnerable members of society must be protected by the adoption of
relatively low-cost targeted programmes.
19. With
respect to the right to health, equality of access to health care and health
services has to be emphasized. States have a special obligation to provide
those who do not have sufficient means with the necessary health insurance and
health-care facilities, and to prevent any discrimination on internationally
prohibited grounds in the provision of health care and health services,
especially with respect to the core obligations of the right to health. (16)
Inappropriate health resource allocation can lead to discrimination that may
not be overt. For example, investments should not disproportionately favour
expensive curative health services which are often accessible only to a small,
privileged fraction of the population, rather than primary and preventive
health care benefiting a far larger part of the population.
Gender
perspective
20. The
Committee recommends that States integrate a gender perspective in their
health-related policies, planning, programmes and research in order to promote
better health for both women and men. A gender-based approach recognizes that
biological and socio-cultural factors play a significant role in influencing
the health of men and women. The disaggregation of health and socio-economic
data according to sex is essential for identifying and remedying inequalities
in health.
Women
and the right to health
21. To
eliminate discrimination against women, there is a need to develop and
implement a comprehensive national strategy for promoting women's right to
health throughout their life span. Such a strategy should include interventions
aimed at the prevention and treatment of diseases affecting women, as well as
policies to provide access to a full range of high quality and affordable
health care, including sexual and reproductive services. A major goal should be
reducing women's health risks, particularly lowering rates of maternal
mortality and protecting women from domestic violence. The realization of
women's right to health requires the removal of all barriers interfering with
access to health services, education and information, including in the area of
sexual and reproductive health. It is also important to undertake preventive,
promotive and remedial action to shield women from the impact of harmful
traditional cultural practices and norms that deny them their full reproductive
rights.
Children
and adolescents
22.
Article 12.2 (a) outlines the need to take measures to reduce infant mortality
and promote the healthy development of infants and children. Subsequent
international human rights instruments recognize that children and adolescents
have the right to the enjoyment of the highest standard of health and access to
facilities for the treatment of illness. (17)
The
Convention on the Rights of the Child directs States to ensure access to
essential health services for the child and his or her family, including pre-
and post-natal care for mothers. The Convention links these goals with ensuring
access to child-friendly information about preventive and health-promoting
behaviour and support to families and communities in implementing these
practices. Implementation of the principle of non-discrimination requires that
girls, as well as boys, have equal access to adequate nutrition, safe
environments, and physical as well as mental health services. There is a need
to adopt effective and appropriate measures to abolish harmful traditional
practices affecting the health of children, particularly girls, including early
marriage, female genital mutilation, preferential feeding and care of male children.
(18)
Children with disabilities should be given the opportunity to enjoy a
fulfilling and decent life and to participate within their community.
23.
States parties should provide a safe and supportive environment for
adolescents, that ensures the opportunity to participate in decisions affecting
their health, to build life-skills, to acquire appropriate information, to
receive counselling and to negotiate the health-behaviour choices they make.
The realization of the right to health of adolescents is dependent on
the development of youth-friendly health care, which respects confidentiality
and privacy and includes appropriate sexual and reproductive health services.
24. In
all policies and programmes aimed at guaranteeing the right to health of
children and adolescents their best interests shall be a primary consideration.
Older
persons
25. With
regard to the realization of the right to health of older persons, the
Committee, in accordance with paragraphs 34 and 35 of General Comment No. 6
(1995), reaffirms the importance of an integrated approach, combining elements
of preventive, curative and rehabilitative health treatment. Such measures
should be based on periodical check-ups for both sexes; physical as well as
psychological rehabilitative measures aimed at maintaining the functionality
and autonomy of older persons; and attention and care for chronically and terminally
ill persons, sparing them avoidable pain and enabling them to die with dignity.
Persons
with disabilities
26. The
Committee reaffirms paragraph 34 of its General Comment No. 5, which addresses
the issue of persons with disabilities in the context of the right to physical
and mental health. Moreover, the Committee stresses the need to ensure that not
only the public health sector but also private providers of health services and
facilities comply with the principle of non-discrimination in relation to
persons with disabilities.
Indigenous
peoples
27. In
the light of emerging international law and practice and the recent measures
taken by States in relation to indigenous peoples, (19)
the Committee deems it useful to identify elements that would help to define
indigenous peoples' right to health in order better to enable States with
indigenous peoples to implement the provisions contained in article 12 of the
Covenant. The Committee considers that indigenous peoples have the right to
specific measures to improve their access to health services and care. These
health services should be culturally appropriate, taking into account
traditional preventive care, healing practices and medicines. States should
provide resources for indigenous peoples to design, deliver and control such
services so that they may enjoy the highest attainable standard of physical and
mental health. The vital medicinal plants, animals and minerals necessary to
the full enjoyment of health of indigenous peoples should also be protected.
The Committee notes that, in indigenous communities, the health of the
individual is often linked to the health of the society as a whole and has a
collective dimension. In this respect, the Committee considers that
development-related activities that lead to the displacement of indigenous
peoples against their will from their traditional territories and environment,
denying them their sources of nutrition and breaking their symbiotic
relationship with their lands, has a deleterious effect on their health.
Limitations
28.
Issues of public health are sometimes used by States as grounds for limiting
the exercise of other fundamental rights. The Committee wishes to emphasize
that the Covenant's limitation clause, article 4, is primarily intended to
protect the rights of individuals rather than to permit the imposition of
limitations by States. Consequently a State party which, for example, restricts
the movement of, or incarcerates, persons with transmissible diseases
such as HIV/AIDS, refuses to allow doctors to treat persons believed to be
opposed to a government, or fails to provide immunization against the
community's major infectious diseases, on grounds such as national security or
the preservation of public order, has the burden of justifying such serious
measures in relation to each of the elements identified in article 4. Such
restrictions must be in accordance with the law, including international
human rights standards, compatible with the nature of the rights protected by
the Covenant, in the interest of legitimate aims pursued, and strictly
necessary for the promotion of the general welfare in a democratic society.
29. In
line with article 5.1, such limitations must be proportional, i.e. the least
restrictive alternative must be adopted where several types of limitations are
available. Even where such limitations on grounds of protecting public health
are basically permitted, they should be of limited duration and subject to
review.
II. STATES PARTIES' OBLIGATIONS
General legal obligations
30.
While the Covenant provides for progressive realization and acknowledges the
constraints due to the limits of available resources, it also imposes on States
parties various obligations which are of immediate effect. States parties have
immediate obligations in relation to the right to health, such as the guarantee
that the right will be exercised without discrimination of any kind (art. 2.2)
and the obligation to take steps (art. 2.1) towards the full realization of
article 12. Such steps must be deliberate, concrete and targeted towards the
full realization of the right to health. (20)
31. The
progressive realization of the right to health over a period of time should not
be interpreted as depriving States parties' obligations of all meaningful
content. Rather, progressive realization means that States parties have a
specific and continuing obligation to move as expeditiously and effectively as
possible towards the full realization of article 12. (21)
32. As
with all other rights in the Covenant, there is a strong presumption that
retrogressive measures taken in relation to the right to health are not
permissible. If any deliberately retrogressive measures are taken, the State
party has the burden of proving that they have been introduced after the most
careful consideration of all alternatives and that they are duly justified by
reference to the totality of the rights provided for in the Covenant in the
context of the full use of the State party's maximum available resources. (22)
33. The
right to health, like all human rights, imposes three types or levels of
obligations on States parties: the obligations to respect, protect and
fulfil. In turn, the obligation to fulfil contains obligations to
facilitate, provide and promote. (23)
The obligation to respect requires States to refrain from interfering
directly or indirectly with the enjoyment of the right to health. The
obligation to protect requires States to take measures that prevent
third parties from interfering with article 12 guarantees. Finally, the
obligation to fulfil requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards the
full realization of the right to health.
Specific
legal obligations
34. In
particular, States are under the obligation to respect the right to
health by, inter alia, refraining from denying or limiting equal access
for all persons, including prisoners or detainees, minorities, asylum seekers
and illegal immigrants, to preventive, curative and palliative health
services; abstaining from enforcing discriminatory practices as a State policy;
and abstaining from imposing discriminatory practices relating to women's
health status and needs. Furthermore, obligations to respect include a State's
obligation to refrain from prohibiting or impeding traditional preventive care,
healing practices and medicines, from marketing unsafe drugs and from applying
coercive medical treatments, unless on an exceptional basis for the treatment
of mental illness or the prevention and control of communicable diseases. Such
exceptional cases should be subject to specific and restrictive conditions,
respecting best practices and applicable international standards, including the
Principles for the Protection of Persons with Mental Illness and the
Improvement of Mental Health Care. (24)
In
addition, States should refrain from limiting access to contraceptives and
other means of maintaining sexual and reproductive health, from censoring,
withholding or intentionally misrepresenting health-related information,
including sexual education and information, as well as from preventing people's
participation in health-related matters. States should also refrain from
unlawfully polluting air, water and soil, e.g. through industrial waste from
State-owned facilities, from using or testing nuclear, biological or chemical
weapons if such testing results in the release of substances harmful to human
health, and from limiting access to health services as a punitive measure, e.g.
during armed conflicts in violation of international humanitarian law.
35.
Obligations to protect include, inter alia, the duties of States
to adopt legislation or to take other measures ensuring equal access to health
care and health-related services provided by third parties; to ensure that
privatization of the health sector does not constitute a threat to the
availability, accessibility, acceptability and quality of health facilities,
goods and services; to control the marketing of medical equipment and medicines
by third parties; and to ensure that medical practitioners and other health
professionals meet appropriate standards of education, skill and ethical codes
of conduct. States are also obliged to ensure that harmful social or
traditional practices do not interfere with access to pre- and post-natal care
and family-planning; to prevent third parties from coercing women to undergo
traditional practices, e.g. female genital mutilation; and to take measures to
protect all vulnerable or marginalized groups of society, in particular women,
children, adolescents and older persons, in the light of gender-based
expressions of violence. States should also ensure that third parties do not
limit people's access to health-related information and services.
36. The
obligation to fulfil requires States parties, inter alia, to give
sufficient recognition to the right to health in the national political and
legal systems, preferably by way of legislative implementation, and to adopt a
national health policy with a detailed plan for realizing the right to health.
States must ensure provision of health care, including immunization programmes
against the major infectious diseases, and ensure equal access for all to the
underlying determinants of health, such as nutritiously safe food and
potable drinking water, basic sanitation and adequate housing and living
conditions. Public health infrastructures should provide for sexual and
reproductive health services, including safe motherhood, particularly in rural
areas. States have to ensure the appropriate training of doctors and other
medical personnel, the provision of a sufficient number of hospitals, clinics
and other health-related facilities, and the promotion and support of the
establishment of institutions providing counselling and mental health services,
with due regard to equitable distribution throughout the country. Further
obligations include the provision of a public, private or mixed health
insurance system which is affordable for all, the promotion of medical research
and health education, as well as information campaigns, in particular with
respect to HIV/AIDS, sexual and reproductive health, traditional practices,
domestic violence, the abuse of alcohol and the use of cigarettes, drugs
and other harmful substances. States are also required to adopt measures
against environmental and occupational health hazards and against any other
threat as demonstrated by epidemiological data. For this purpose they should
formulate and implement national policies aimed at reducing and eliminating
pollution of air, water and soil, including pollution by heavy metals such as
lead from gasoline. Furthermore, States parties are required to formulate,
implement and periodically review a coherent national policy to minimize the
risk of occupational accidents and diseases, as well as to provide a coherent
national policy on occupational safety and health services. (25)
37. The
obligation to fulfil (facilitate) requires States inter alia to
take positive measures that enable and assist individuals and communities to
enjoy the right to health. States parties are also obliged to fulfil (provide)
a specific right contained in the Covenant when individuals or a group
are unable, for reasons beyond their control, to realize that right themselves
by the means at their disposal. The obligation to fulfil (promote) the
right to health requires States to undertake actions that create, maintain and
restore the health of the population. Such obligations include: (i) fostering
recognition of factors favouring positive health results, e.g. research and
provision of information; (ii) ensuring that health services are culturally
appropriate and that health care staff are trained to recognize and respond to
the specific needs of vulnerable or marginalized groups; (iii) ensuring that
the State meets its obligations in the dissemination of appropriate information
relating to healthy lifestyles and nutrition, harmful traditional practices and
the availability of services; (iv) supporting people in making informed choices
about their health.
International
obligations
38. In
its General Comment No. 3, the Committee drew attention to the obligation of
all States parties to take steps, individually and through international
assistance and cooperation, especially economic and technical, towards the full
realization of the rights recognized in the Covenant, such as the right to
health. In the spirit of article 56 of the Charter of the United Nations, the
specific provisions of the Covenant (articles 12, 2.1, 22 and 23) and the
Alma-Ata Declaration on primary health care, States parties should recognize
the essential role of international cooperation and comply with their
commitment to take joint and separate action to achieve the full realization of
the right to health. In this regard, States parties are referred to the
Alma-Ata Declaration which proclaims that the existing gross inequality in the
health status of the people, particularly between developed and developing
countries, as well as within countries, is politically, socially and
economically unacceptable and is, therefore, of common concern to all
countries. (26)
39. To
comply with their international obligations in relation to article 12, States
parties have to respect the enjoyment of the right to health in other
countries, and to prevent third parties from violating the right in other
countries, if they are able to influence these third parties by way of legal or
political means, in accordance with the Charter of the United Nations and
applicable international law. Depending on the availability of resources,
States should facilitate access to essential health facilities, goods and
services in other countries, wherever possible and provide the necessary aid
when required. (27)
States parties should ensure that the right to health is given due attention in
international agreements and, to that end, should consider the development of
further legal instruments. In relation to the conclusion of other international
agreements, States parties should take steps to ensure that these instruments
do not adversely impact upon the right to health. Similarly, States parties
have an obligation to ensure that their actions as members of international
organizations take due account of the right to health. Accordingly, States
parties which are members of international financial institutions, notably the
International Monetary Fund, the World Bank, and regional development banks,
should pay greater attention to the protection of the right to health in
influencing the lending policies, credit agreements and international measures
of these institutions.
40.
States parties have a joint and individual responsibility, in accordance with
the Charter of the United Nations and relevant resolutions of the United
Nations General Assembly and of the World Health Assembly, to cooperate in
providing disaster relief and humanitarian assistance in times of emergency,
including assistance to refugees and internally displaced persons. Each State
should contribute to this task to the maximum of its capacities. Priority in
the provision of international medical aid, distribution and management of
resources, such as safe and potable water, food and medical supplies, and
financial aid should be given to the most vulnerable or marginalized groups of
the population. Moreover, given that some diseases are easily transmissible
beyond the frontiers of a State, the international community has a collective
responsibility to address this problem. The economically developed States
parties have a special responsibility and interest to assist the poorer
developing States in this regard.
41.
States parties should refrain at all times from imposing embargoes or
similar measures restricting the supply of another State with adequate
medicines and medical equipment. Restrictions on such goods should never be
used as an instrument of political and economic pressure. In this regard, the
Committee recalls its position, stated in General Comment No. 8, on the
relationship between economic sanctions and respect for economic, social and
cultural rights.
42.
While only States are parties to the Covenant and thus ultimately accountable
for compliance with it, all members of society - individuals, including health
professionals, families, local communities, intergovernmental and
non-governmental organizations, civil society organizations, as well as the
private business sector - have responsibilities regarding the realization of
the right to health. State parties should therefore provide an environment
which facilitates the discharge of these responsibilities.
Core
obligations
43. In
General Comment No. 3, the Committee confirms that States parties have a core
obligation to ensure the satisfaction of, at the very least, minimum essential
levels of each of the rights enunciated in the Covenant, including essential
primary health care. Read in conjunction with more contemporary instruments,
such as the Programme of Action of the International Conference on Population
and Development, (28)
the Alma-Ata Declaration provides compelling guidance on the core obligations
arising from article 12. Accordingly, in the Committee's view, these core
obligations include at least the following obligations:
(a) To
ensure the right of access to health facilities, goods and services on a
non-discriminatory basis, especially for vulnerable or marginalized groups;
(b) To
ensure access to the minimum essential food which is nutritionally adequate and
safe, to ensure freedom from hunger to everyone;
(c) To
ensure access to basic shelter, housing and sanitation, and an adequate
supply of safe and potable water;
(d) To
provide essential drugs, as from time to time defined under the WHO Action
Programme on Essential Drugs;
(e) To
ensure equitable distribution of all health facilities, goods and services;
(f) To
adopt and implement a national public health strategy and plan of action, on
the basis of epidemiological evidence, addressing the health concerns of the
whole population; the strategy and plan of action shall be devised, and
periodically reviewed, on the basis of a participatory and transparent process;
they shall include methods, such as right to health indicators and benchmarks,
by which progress can be closely monitored; the process by which the strategy
and plan of action are devised, as well as their content, shall give particular
attention to all vulnerable or marginalized groups.
44. The
Committee also confirms that the following are obligations of comparable priority:
(a) To
ensure reproductive, maternal (pre-natal as well as post-natal) and child
health care;
(b) To
provide immunization against the major infectious diseases occurring in the
community;
(c) To
take measures to prevent, treat and control epidemic and endemic diseases;
(d) To
provide education and access to information concerning the main health problems
in the community, including methods of preventing and controlling them;
(e) To
provide appropriate training for health personnel, including education
on health and human rights.
45. For
the avoidance of any doubt, the Committee wishes to emphasize that it is
particularly incumbent on States parties and other actors in a position to
assist, to provide "international assistance and cooperation, especially
economic and technical" (29)
which enable developing countries to fulfil their core and other obligations
indicated in paragraphs 43 and 44 above.
III. VIOLATIONS
46. When the normative content of article 12 (Part I) is applied to the
obligations of States parties (Part II), a dynamic process is set in motion
which facilitates identification of violations of the right to health. The
following paragraphs provide illustrations of violations of article 12.
47. In
determining which actions or omissions amount to a violation of the right to
health, it is important to distinguish the inability from the unwillingness of
a State party to comply with its obligations under article 12. This follows
from article 12.1, which speaks of the highest attainable standard of health,
as well as from article 2.1 of the Covenant, which obliges each State party to
take the necessary steps to the maximum of its available resources. A State
which is unwilling to use the maximum of its available resources for the
realization of the right to health is in violation of its obligations
under article 12. If resource constraints render it impossible for a State to
comply fully with its Covenant obligations, it has the burden of justifying
that every effort has nevertheless been made to use all available resources at
its disposal in order to satisfy, as a matter of priority, the obligations outlined
above. It should be stressed, however, that a State party cannot, under any
circumstances whatsoever, justify its non-compliance with the core obligations
set out in paragraph 43 above, which are non-derogable.
48.
Violations of the right to health can occur through the direct action of States
or other entities insufficiently regulated by States. The adoption of any
retrogressive measures incompatible with the core obligations under the right
to health, outlined in paragraph 43 above, constitutes a violation of the right
to health. Violations through acts of commission include the formal
repeal or suspension of legislation necessary for the continued enjoyment of
the right to health or the adoption of legislation or policies which are
manifestly incompatible with pre-existing domestic or international legal
obligations in relation to the right to health.
49.
Violations of the right to health can also occur through the omission or
failure of States to take necessary measures arising from legal obligations.
Violations through acts of omission include the failure to take
appropriate steps towards the full realization of everyone's right to the
enjoyment of the highest attainable standard of physical and mental health, the
failure to have a national policy on occupational safety and health as well as
occupational health services, and the failure to enforce relevant laws.
Violations
of the obligation to respect
50.
Violations of the obligation to respect are those State actions, policies or
laws that contravene the standards set out in article 12 of the Covenant and
are likely to result in bodily harm, unnecessary morbidity and preventable
mortality. Examples include the denial of access to health facilities, goods
and services to particular individuals or groups as a result of de jure or de
facto discrimination; the deliberate withholding or misrepresentation of
information vital to health protection or treatment; the suspension of
legislation or the adoption of laws or policies that interfere with the enjoyment
of any of the components of the right to health; and the failure of the
State to take into account its legal obligations regarding the right to health
when entering into bilateral or multilateral agreements with other States,
international organizations and other entities, such as multinational
corporations.
Violations
of the obligation to protect
51.
Violations of the obligation to protect follow from the failure of a State to
take all necessary measures to safeguard persons within their jurisdiction from
infringements of the right to health by third parties. This category includes
such omissions as the failure to regulate the activities of individuals, groups
or corporations so as to prevent them from violating the right to health of
others; the failure to protect consumers and workers from practices detrimental
to health, e.g. by employers and manufacturers of medicines or food; the
failure to discourage production, marketing and consumption of tobacco,
narcotics and other harmful substances; the failure to protect women against
violence or to prosecute perpetrators; the failure to discourage the continued
observance of harmful traditional medical or cultural practices; and the
failure to enact or enforce laws to prevent the pollution of water, air and
soil by extractive and manufacturing industries.
Violations
of the obligation to fulfil
52.
Violations of the obligation to fulfil occur through the failure of States
parties to take all necessary steps to ensure the realization of the
right to health. Examples include the failure to adopt or implement a national
health policy designed to ensure the right to health for everyone; insufficient
expenditure or misallocation of public resources which results in the
non-enjoyment of the right to health by individuals or groups, particularly the
vulnerable or marginalized; the failure to monitor the realization of the right
to health at the national level, for example by identifying right to health
indicators and benchmarks; the failure to take measures to reduce the
inequitable distribution of health facilities, goods and services; the failure
to adopt a gender-sensitive approach to health; and the failure to reduce
infant and maternal mortality rates.
IV. IMPLEMENTATION AT THE NATIONAL LEVEL
Framework legislation
53. The
most appropriate feasible measures to implement the right to health will vary
significantly from one State to another. Every State has a margin of discretion
in assessing which measures are most suitable to meet its specific
circumstances. The Covenant, however, clearly imposes a duty on each State to
take whatever steps are necessary to ensure that everyone has access to health
facilities, goods and services so that they can enjoy, as soon as possible, the
highest attainable standard of physical and mental health. This requires the
adoption of a national strategy to ensure to all the enjoyment of the right to
health, based on human rights principles which define the objectives of that
strategy, and the formulation of policies and corresponding right to health
indicators and benchmarks. The national health strategy should also identify
the resources available to attain defined objectives, as well as the most
cost-effective way of using those resources.
54. The
formulation and implementation of national health strategies and plans of
action should respect, inter alia, the principles of
non-discrimination and people's participation. In particular, the right of
individuals and groups to participate in decision-making processes, which may
affect their development, must be an integral component of any policy,
programme or strategy developed to discharge governmental obligations under
article 12. Promoting health must involve effective community action in setting
priorities, making decisions, planning, implementing and evaluating strategies
to achieve better health. Effective provision of health services can only be
assured if people's participation is secured by States.
55. The
national health strategy and plan of action should also be based on the principles
of accountability, transparency and independence of the judiciary, since good
governance is essential to the effective implementation of all human rights,
including the realization of the right to health. In order to create a
favourable climate for the realization of the right, States parties should take
appropriate steps to ensure that the private business sector and civil society
are aware of, and consider the importance of, the right to health in pursuing
their activities.
56.
States should consider adopting a framework law to operationalize their right
to health national strategy. The framework law should establish national
mechanisms for monitoring the implementation of national health strategies and
plans of action. It should include provisions on the targets to be achieved and
the time-frame for their achievement; the means by which right to health
benchmarks could be achieved; the intended collaboration with civil society,
including health experts, the private sector and international organizations;
institutional responsibility for the implementation of the right to health
national strategy and plan of action; and possible recourse procedures. In
monitoring progress towards the realization of the right to health, States
parties should identify the factors and difficulties affecting implementation
of their obligations.
Right
to health indicators and benchmarks
57.
National health strategies should identify appropriate right to health
indicators and benchmarks. The indicators should be designed to monitor, at the
national and international levels, the State party's obligations under article
12. States may obtain guidance on appropriate right to health indicators, which
should address different aspects of the right to health, from the ongoing work
of WHO and the United Nations Children's Fund (UNICEF) in this field. Right to
health indicators require disaggregation on the prohibited grounds of
discrimination.
58.
Having identified appropriate right to health indicators, States parties are
invited to set appropriate national benchmarks in relation to each indicator.
During the periodic reporting procedure the Committee will engage in a process
of scoping with the State party. Scoping involves the joint consideration by
the State party and the Committee of the indicators and national benchmarks
which will then provide the targets to be achieved during the next reporting
period. In the following five years, the State party will use these national
benchmarks to help monitor its implementation of article 12. Thereafter, in the
subsequent reporting process, the State party and the Committee will consider
whether or not the benchmarks have been achieved, and the reasons for any
difficulties that may have been encountered.
Remedies
and accountability
59. Any
person or group victim of a violation of the right to health should have access
to effective judicial or other appropriate remedies at both national and
international levels. (30)
All victims of such violations should be entitled to adequate reparation, which
may take the form of restitution, compensation, satisfaction or guarantees of
non-repetition. National ombudsmen, human rights commissions, consumer forums,
patients' rights associations or similar institutions should address violations
of the right to health.
60. The
incorporation in the domestic legal order of international instruments
recognizing the right to health can significantly enhance the scope and
effectiveness of remedial measures and should be encouraged in all cases.
Incorporation enables courts to adjudicate violations of the right to health,
or at least its core obligations, by direct reference to the Covenant.
61.
Judges and members of the legal profession should be encouraged by States
parties to pay greater attention to violations of the right to health in the
exercise of their functions.
62.
States parties should respect, protect, facilitate and promote the work of
human rights advocates and other members of civil society with a view to
assisting vulnerable or marginalized groups in the realization of their right
to health.
V. OBLIGATIONS OF ACTORS OTHER THAN STATES PARTIES
63. The role of the United Nations agencies and programmes, and in particular
the key function assigned to WHO in realizing the right to health at the
international, regional and country levels, is of particular importance, as is
the function of UNICEF in relation to the right to health of children. When
formulating and implementing their right to health national strategies, States
parties should avail themselves of technical assistance and cooperation of WHO.
Further, when preparing their reports, States parties should utilize the
extensive information and advisory services of WHO with regard to data
collection, disaggregation, and the development of right to health indicators
and benchmarks.
64.
Moreover, coordinated efforts for the realization of the right to health should
be maintained to enhance the interaction among all the actors concerned,
including the various components of civil society. In conformity with articles
22 and 23 of the Covenant, WHO, The International Labour Organization, the
United Nations Development Programme, UNICEF, the United Nations Population
Fund, the World Bank, regional development banks, the International Monetary
Fund, the World Trade Organization and other relevant bodies within the United
Nations system, should cooperate effectively with States parties, building on
their respective expertise, in relation to the implementation of the right to
health at the national level, with due respect to their individual mandates. In
particular, the international financial institutions, notably the World Bank
and the International Monetary Fund, should pay greater attention to the
protection of the right to health in their lending policies, credit agreements
and structural adjustment programmes. When examining the reports of States
parties and their ability to meet the obligations under article 12, the
Committee will consider the effects of the assistance provided by all other
actors. The adoption of a human rights-based approach by United Nations
specialized agencies, programmes and bodies will greatly facilitate
implementation of the right to health. In the course of its examination of
States parties' reports, the Committee will also consider the role of health
professional associations and other non-governmental organizations in relation
to the States' obligations under article 12.
65. The
role of WHO, the Office of the United Nations High Commissioner for Refugees,
the International Committee of the Red Cross/Red Crescent and UNICEF, as well
as non governmental organizations and national medical associations, is of
particular importance in relation to disaster relief and humanitarian
assistance in times of emergencies, including assistance to refugees and
internally displaced persons. Priority in the provision of international
medical aid, distribution and management of resources, such as safe and potable
water, food and medical supplies, and financial aid should be given to the most
vulnerable or marginalized groups of the population.
General Comment 15, The right to water (arts.
11 and 12 of the International Covenant on Economic, Social and Cultural
Rights), U.N. Doc. E/C.12/2002/11 (Twenty-ninth session, 2002).
I. INTRODUCTION
1. Water is a limited natural resource and a public good fundamental for life and health. The human right to water is indispensable for leading a life in human dignity. It is a prerequisite for the realization of other human rights. The Committee has been confronted continually with the widespread denial of the right to water in developing as well as developed countries. Over one billion persons lack access to a basic water supply, while several billion do not have access to adequate sanitation, which is the primary cause of water contamination and diseases linked to water. The continuing contamination, depletion and unequal distribution of water is exacerbating existing poverty. States parties have to adopt effective measures to realize, without discrimination, the right to water, as set out in this general comment.
The legal bases of the right to water
2. The human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses. An adequate amount of safe water is necessary to prevent death from dehydration, to reduce the risk of water-related disease and to provide for consumption, cooking, personal and domestic hygienic requirements.
3. Article 11, paragraph 1, of the Covenant specifies a number of rights emanating from, and indispensable for, the realization of the right to an adequate standard of living “including adequate food, clothing and housing”. The use of the word “including” indicates that this catalogue of rights was not intended to be exhaustive. The right to water clearly falls within the category of guarantees essential for securing an adequate standard of living, particularly since it is one of the most fundamental conditions for survival. Moreover, the Committee has previously recognized that water is a human right contained in article 11, paragraph 1, (see General Comment No. 6 (1995)). The right to water is also inextricably related to the right to the highest attainable standard of health (art. 12, para. 1) and the rights to adequate housing and adequate food (art. 11, para. 1). The right should also be seen in conjunction with other rights enshrined in the International Bill of Human Rights, foremost amongst them the right to life and human dignity.
4. The right to water has been recognized in a wide range of international documents, including treaties, declarations and other standards. For instance, Article 14, paragraph 2, of the Convention on the Elimination of All Forms of Discrimination Against Women stipulates that States parties shall ensure to women the right to “enjoy adequate living conditions, particularly in relation to […] water supply”. Article 24, paragraph 2, of the Convention on the Rights of the Child requires States parties to combat disease and malnutrition “through the provision of adequate nutritious foods and clean drinking-water”.
5. The right to water has been consistently addressed by the Committee during its consideration of States parties’ reports, in accordance with its revised general guidelines regarding the form and content of reports to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, and its general comments.
6. Water is required for a range of different purposes, besides personal and domestic uses, to realize many of the Covenant rights. For instance, water is necessary to produce food (right to adequate food) and ensure environmental hygiene (right to health). Water is essential for securing livelihoods (right to gain a living by work) and enjoying certain cultural practices (right to take part in cultural life). Nevertheless, priority in the allocation of water must be given to the right to water for personal and domestic uses. Priority should also be given to the water resources required to prevent starvation and disease, as well as water required to meet the core obligations of each of the Covenant rights.
Water and Covenant rights
7. The Committee notes the importance of ensuring sustainable access to water resources for agriculture to realize the right to adequate food (see General Comment No.12 (1999)). Attention should be given to ensuring that disadvantaged and marginalized farmers, including women farmers, have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology. Taking note of the duty in article 1, paragraph 2, of the Covenant, which provides that a people may not “be deprived of its means of subsistence”, States parties should ensure that there is adequate access to water for subsistence farming and for securing the livelihoods of indigenous peoples.
8. Environmental hygiene, as an aspect of the right to health under article 12, paragraph 2 (b), of the Covenant, encompasses taking steps on a non-discriminatory basis to prevent threats to health from unsafe and toxic water conditions. For example, States parties should ensure that natural water resources are protected from contamination by harmful substances and pathogenic microbes. Likewise, States parties should monitor and combat situations where aquatic eco-systems serve as a habitat for vectors of diseases wherever they pose a risk to human living environments.
9. With a view to assisting States parties' implementation of the Covenant and the fulfilment of their reporting obligations, this general Comment focuses in Part II on the normative content of the right to water in articles 11, paragraph 1, and 12, on States parties' obligations (Part III), on violations (Part IV) and on implementation at the national level (Part V), while the obligations of actors other than States parties are addressed in Part VI.
II. NORMATIVE CONTENT OF THE RIGHT TO WATER
10. The right to water contains both freedoms and entitlements. The freedoms include the right to maintain access to existing water supplies necessary for the right to water, and the right to be free from interference, such as the right to be free from arbitrary disconnections or contamination of water supplies. By contrast, the entitlements include the right to a system of water supply and management that provides equality of opportunity for people to enjoy the right to water.
11. The elements of the right to water must be adequate for human dignity, life and health, in accordance with articles 11, paragraph 1, and 12. The adequacy of water should not be interpreted narrowly, by mere reference to volumetric quantities and technologies. Water should be treated as a social and cultural good, and not primarily as an economic good. The manner of the realization of the right to water must also be sustainable, ensuring that the right can be realized for present and future generations.
12. While the adequacy of water required for the right to water may vary according to different conditions, the following factors apply in all circumstances:
(a) Availability. The water supply for each person must be sufficient and continuous for personal and domestic uses. These uses ordinarily include drinking, personal sanitation, washing of clothes, food preparation, personal and household hygiene. The quantity of water available for each person should correspond to World Health Organization (WHO) guidelines. Some individuals and groups may also require additional water due to health, climate, and work conditions;
(b) Quality. The water required for each personal or domestic use must be safe, therefore free from micro-organisms, chemical substances and radiological hazards that constitute a threat to a person’s health. Furthermore, water should be of an acceptable colour, odour and taste for each personal or domestic use.
(c) Accessibility. Water and water facilities and services have to be accessible to everyone without discrimination, within the jurisdiction of the State party. Accessibility has four overlapping dimensions:
(i) Physical accessibility: water, and adequate water facilities and services, must be within safe physical reach for all sections of the population. Sufficient, safe and acceptable water must be accessible within, or in the immediate vicinity, of each household, educational institution and workplace. All water facilities and services must be of sufficient quality, culturally appropriate and sensitive to gender, life-cycle and privacy requirements. Physical security should not be threatened during access to water facilities and services;
(ii) Economic accessibility: Water, and water facilities and services, must be affordable for all. The direct and indirect costs and charges associated with securing water must be affordable, and must not compromise or threaten the realization of other Covenant rights;
(iii) Non-discrimination: Water and water facilities and services must be accessible to all, including the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds; and
(iv) Information accessibility: accessibility includes the right to seek, receive and impart information concerning water issues.
Special topics of broad application
Non-discrimination and equality
13. The obligation of States parties to guarantee that the right to water is enjoyed without discrimination (art. 2, para. 2), and equally between men and women (art. 3), pervades all of the Covenant obligations. The Covenant thus proscribes any discrimination on the grounds of race, colour, sex, age, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation and civil, political, social or other status, which has the intention or effect of nullifying or impairing the equal enjoyment or exercise of the right to water. The Committee recalls paragraph 12 of General Comment No. 3 (1990), which states that even in times of severe resource constraints, the vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes.
14. States parties should take steps to remove de facto discrimination on prohibited grounds, where individuals and groups are deprived of the means or entitlements necessary for achieving the right to water. States parties should ensure that the allocation of water resources, and investments in water, facilitate access to water for all members of society. Inappropriate resource allocation can lead to discrimination that may not be overt. For example, investments should not disproportionately favour expensive water supply services and facilities that are often accessible only to a small, privileged fraction of the population, rather than investing in services and facilities that benefit a far larger part of the population.
15. With respect to the right to water, States parties have a special obligation to provide those who do not have sufficient means with the necessary water and water facilities and to prevent any discrimination on internationally prohibited grounds in the provision of water and water services.
16. Whereas the right to water applies to everyone, States parties should give special attention to those individuals and groups who have traditionally faced difficulties in exercising this right, including women, children, minority groups, indigenous peoples, refugees, asylum seekers, internally displaced persons, migrant workers, prisoners and detainees. In particular, States parties should take steps to ensure that:
(a) Women are not excluded from decision-making processes concerning water resources and entitlements. The disproportionate burden women bear in the collection of water should be alleviated;
(b) Children are not prevented from enjoying their human rights due to the lack of adequate water in educational institutions and households or through the burden of collecting water. Provision of adequate water to educational institutions currently without adequate drinking water should be addressed as a matter of urgency;
(c) Rural and deprived urban areas have access to properly maintained water facilities. Access to traditional water sources in rural areas should be protected from unlawful encroachment and pollution. Deprived urban areas, including informal human settlements, and homeless persons, should have access to properly maintained water facilities. No household should be denied the right to water on the grounds of their housing or land status;
(d) Indigenous peoples’ access to water resources on their ancestral lands is protected from encroachment and unlawful pollution. States should provide resources for indigenous peoples to design, deliver and control their access to water;
(e) Nomadic and traveller communities have access to adequate water at traditional and designated halting sites;
(f) Refugees, asylum-seekers, internally displaced persons and returnees have access to adequate water whether they stay in camps or in urban and rural areas. Refugees and asylum-seekers should be granted the right to water on the same conditions as granted to nationals;
(g) Prisoners and detainees are provided with sufficient and safe water for their daily individual requirements, taking note of the requirements of international humanitarian law and the United Nations Standard Minimum Rules for the Treatment of Prisoners;
(h) Groups facing difficulties with physical access to water, such as older persons, persons with disabilities, victims of natural disasters, persons living in disaster-prone areas, and those living in arid and semi-arid areas, or on small islands are provided with safe and sufficient water.
III. STATES PARTIES’ OBLIGATIONS
General legal obligations
17. While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to the right to water, such as the guarantee that the right will be exercised without discrimination of any kind (art. 2, para. 2) and the obligation to take steps (art. 2, para.1) towards the full realization of articles 11, paragraph 1, and 12. Such steps must be deliberate, concrete and targeted towards the full realization of the right to water.
18. States parties have a constant and continuing duty under the Covenant to move as expeditiously and effectively as possible towards the full realization of the right to water. Realization of the right should be feasible and practicable, since all States parties exercise control over a broad range of resources, including water, technology, financial resources and international assistance, as with all other rights in the Covenant.
19. There is a strong presumption that retrogressive measures taken in relation to the right to water are prohibited under the Covenant. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after the most careful consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party's maximum available resources.
Specific legal obligations
20. The right to water, like any human right, imposes three types of obligations on States parties: obligations to respect, obligations to protect and obligations to fulfil.
(a) Obligations to respect
21. The obligation to respect requires that States parties refrain from interfering directly or indirectly with the enjoyment of the right to water. The obligation includes, inter alia, refraining from engaging in any practice or activity that denies or limits equal access to adequate water; arbitrarily interfering with customary or traditional arrangements for water allocation; unlawfully diminishing or polluting water, for example through waste from State-owned facilities or through use and testing of weapons; and limiting access to, or destroying, water services and infrastructure as a punitive measure, for example, during armed conflicts in violation of international humanitarian law.
22. The Committee notes that during armed conflicts, emergency situations and natural disasters, the right to water embraces those obligations by which States parties are bound under international humanitarian law. This includes protection of objects indispensable for survival of the civilian population, including drinking water installations and supplies and irrigation works, protection of the natural environment against widespread, long-term and severe damage and ensuring that civilians, internees and prisoners have access to adequate water.
(b) Obligations to protect
23. The obligation to protect requires State parties to prevent third parties from interfering in any way with the enjoyment of the right to water. Third parties include individuals, groups, corporations and other entities as well as agents acting under their authority. The obligation includes, inter alia, adopting the necessary and effective legislative and other measures to restrain, for example, third parties from denying equal access to adequate water; and polluting and inequitably extracting from water resources, including natural sources, wells and other water distribution systems.
24. Where water services (such as piped water networks, water tankers, access to rivers and wells) are operated or controlled by third parties, States parties must prevent them from compromising equal, affordable, and physical access to sufficient, safe and acceptable water. To prevent such abuses an effective regulatory system must be established, in conformity with the Covenant and this General Comment, which includes independent monitoring, genuine public participation and imposition of penalties for non-compliance.
(c) Obligations to fulfil
25. The obligation to fulfil can be disaggregated into the obligations to facilitate, promote and provide. The obligation to facilitate requires the State to take positive measures to assist individuals and communities to enjoy the right. The obligation to promote obliges the State party to take steps to ensure that there is appropriate education concerning the hygienic use of water, protection of water sources and methods to minimize water wastage. States parties are also obliged to fulfil (provide) the right when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal.
26. The obligation to fulfil requires States parties to adopt the necessary measures directed towards the full realization of the right to water. The obligation includes, inter alia, according sufficient recognition of this right within the national political and legal systems, preferably by way of legislative implementation; adopting a national water strategy and plan of action to realize this right; ensuring that water is affordable for everyone; and facilitating improved and sustainable access to water, particularly in rural and deprived urban areas.
27. To ensure that water is affordable, States parties must adopt the necessary measures that may include, inter alia: (a) use of a range of appropriate low-cost techniques and technologies; (b) appropriate pricing policies such as free or low-cost water; and (c) income supplements. Any payment for water services has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with water expenses as compared to richer households.
28. States parties should adopt comprehensive and integrated strategies and programmes to ensure that there is sufficient and safe water for present and future generations. Such strategies and programmes may include: (a) reducing depletion of water resources through unsustainable extraction, diversion and damming; (b) reducing and eliminating contamination of watersheds and water-related eco-systems by substances such as radiation, harmful chemicals and human excreta; (c) monitoring water reserves; (d) ensuring that proposed developments do not interfere with access to adequate water; (e) assessing the impacts of actions that may impinge upon water availability and natural-ecosystems watersheds, such as climate changes, desertification and increased soil salinity, deforestation and loss of biodiversity; (f) increasing the efficient use of water by end-users; (g) reducing water wastage in its distribution; (h) response mechanisms for emergency situations; (i) and establishing competent institutions and appropriate institutional arrangements to carry out the strategies and programmes.
29. Ensuring that everyone has access to adequate sanitation is not only fundamental for human dignity and privacy, but is one of the principal mechanisms for protecting the quality of drinking water supplies and resources. In accordance with the rights to health and adequate housing (see General Comments No. 4 (1991) and 14 (2000)) States parties have an obligation to progressively extend safe sanitation services, particularly to rural and deprived urban areas, taking into account the needs of women and children.
International obligations
30. Article 2, paragraph 1, and articles 11, paragraph 1, and 23 of the Covenant require that States parties recognize the essential role of international cooperation and assistance and take joint and separate action to achieve the full realization of the right to water.
31. To comply with their international obligations in relation to the right to water, States parties have to respect the enjoyment of the right in other countries. International cooperation requires States parties to refrain from actions that interfere, directly or indirectly, with the enjoyment of the right to water in other countries. Any activities undertaken within the State party’s jurisdiction should not deprive another country of the ability to realize the right to water for persons in its jurisdiction.
32. States parties should refrain at all times from imposing embargoes or similar measures, that prevent the supply of water, as well as goods and services essential for securing the right to water. Water should never be used as an instrument of political and economic pressure. In this regard, the Committee recalls its position, stated in its General Comment No. 8 (1997), on the relationship between economic sanctions and respect for economic, social and cultural rights.
33. Steps should be taken by States parties to prevent their own citizens and companies from violating the right to water of individuals and communities in other countries. Where States parties can take steps to influence other third parties to respect the right, through legal or political means, such steps should be taken in accordance with the Charter of the United Nations and applicable international law.
34. Depending on the availability of resources, States should facilitate realization of the right to water in other countries, for example through provision of water resources, financial and technical assistance, and provide the necessary aid when required. In disaster relief and emergency assistance, including assistance to refugees and displaced persons, priority should be given to Covenant rights, including the provision of adequate water. International assistance should be provided in a manner that is consistent with the Covenant and other human rights standards, and sustainable and culturally appropriate. The economically developed States parties have a special responsibility and interest to assist the poorer developing States in this regard.
35. States parties should ensure that the right to water is given due attention in international agreements and, to that end, should consider the development of further legal instruments. With regard to the conclusion and implementation of other international and regional agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to water. Agreements concerning trade liberalization should not curtail or inhibit a country’s capacity to ensure the full realization of the right to water.
36. States parties should ensure that their actions as members of international organizations take due account of the right to water. Accordingly, States parties that are members of international financial institutions, notably the International Monetary Fund, the World Bank, and regional development banks, should take steps to ensure that the right to water is taken into account in their lending policies, credit agreements and other international measures.
Core obligations
37. In General Comment No. 3 (1990), the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant. In the Committee’s view, at least a number of core obligations in relation to the right to water can be identified, which are of immediate effect:
(a) To ensure access to the minimum essential amount of water, that is sufficient and safe for personal and domestic uses to prevent disease;
(b) To ensure the right of access to water and water facilities and services on a non-discriminatory basis, especially for disadvantaged or marginalized groups;
(c) To ensure physical access to water facilities or services that provide sufficient, safe and regular water; that have a sufficient number of water outlets to avoid prohibitive waiting times; and that are at a reasonable distance from the household;
(d) To ensure personal security is not threatened when having to physically access to water;
(e) To ensure equitable distribution of all available water facilities and services;
(f) To adopt and implement a national water strategy and plan of action addressing the whole population; the strategy and plan of action should be devised, and periodically reviewed, on the basis of a participatory and transparent process; it should include methods, such as right to water indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all disadvantaged or marginalized groups;
(g) To monitor the extent of the realization, or the non-realization, of the right to water;
(h) To adopt relatively low-cost targeted water programmes to protect vulnerable and marginalized groups;
(i) To take measures to prevent, treat and control diseases linked to water, in particular ensuring access to adequate sanitation;
38. For the avoidance of any doubt, the Committee wishes to emphasize that it is particularly incumbent on States parties, and other actors in a position to assist, to provide international assistance and cooperation, especially economic and technical which enables developing countries to fulfil their core obligations indicated in paragraph 37 above.
IV. VIOLATIONS
39. When the normative content of the right to water (see Part II) is applied to the obligations of States parties (Part III), a process is set in motion, which facilitates identification of violations of the right to water. The following paragraphs provide illustrations of violations of the right to water.
40. To demonstrate compliance with their general and specific obligations, States parties must establish that they have taken the necessary and feasible steps towards the realization of the right to water. In accordance with international law, a failure to act in good faith to take such steps amounts to a violation of the right. It should be stressed that a State party cannot justify its non-compliance with the core obligations set out in paragraph 37 above, which are non-derogable.
41. In determining which actions or omissions amount to a violation of the right to water, it is important to distinguish the inability from the unwillingness of a State party to comply with its obligations in relation to the right to water. This follows from articles 11, paragraph 1, and 12, which speak of the right to an adequate standard of living and the right to health, as well as from article 2, paragraph 1, of the Covenant, which obliges each State party to take the necessary steps to the maximum of its available resources. A State which is unwilling to use the maximum of its available resources for the realization of the right to water is in violation of its obligations under the Covenant. If resource constraints render it impossible for a State party to comply fully with its Covenant obligations, it has the burden of justifying that every effort has nevertheless been made to use all available resources at its disposal in order to satisfy, as a matter of priority, the obligations outlined above.
42. Violations of the right to water can occur through acts of commission, the direct actions of States parties or other entities insufficiently regulated by States. Violations include, for example, the adoption of retrogressive measures incompatible with the core obligations (outlined in para. 37 above), the formal repeal or suspension of legislation necessary for the continued enjoyment of the right to water, or the adoption of legislation or policies which are manifestly incompatible with pre-existing domestic or international legal obligations in relation to the right to water.
43. Violations through acts of omission include the failure to take appropriate steps towards the full realization of everyone's right to water, the failure to have a national policy on water, and the failure to enforce relevant laws.
44. While it is not possible to specify a complete list of violations in advance, a number of typical examples relating to the levels of obligations, emanating from the Committee’s work, may be identified:
(a) Violations of the obligation to respect follow from the State party’s interference with the right to water. This includes, inter alia: (i) arbitrary or unjustified disconnection or exclusion from water services or facilities; (ii) discriminatory or unaffordable increases in the price of water; and (iii) pollution and diminution of water resources affecting human health;
(b) Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements of the right to water by third parties. This includes, inter alia: (i) failure to enact or enforce laws to prevent the contamination and inequitable extraction of water; (ii) failure to effectively regulate and control water services providers; (iv) failure to protect water distribution systems (e.g., piped networks and wells) from interference, damage and destruction; and
(c) Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to water. Examples includes, inter alia: (i) failure to adopt or implement a national water policy designed to ensure the right to water for everyone; (ii) insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right to water by individuals or groups, particularly the vulnerable or marginalized; (iii) failure to monitor the realization of the right to water at the national level, for example by identifying right-to-water indicators and benchmarks; (iv) failure to take measures to reduce the inequitable distribution of water facilities and services; (v) failure to adopt mechanisms for emergency relief; (vi) failure to ensure that the minimum essential level of the right is enjoyed by everyone (vii) failure of a State to take into account its international legal obligations regarding the right to water when entering into agreements with other States or with international organizations.
V. IMPLEMENTATION AT THE NATIONAL LEVEL
45. In accordance with article 2, paragraph 1, of the Covenant, States parties are required to utilize “all appropriate means, including particularly the adoption of legislative measures” in the implementation of their Covenant obligations. Every State party has a margin of discretion in assessing which measures are most suitable to meet its specific circumstances. The Covenant, however, clearly imposes a duty on each State party to take whatever steps are necessary to ensure that everyone enjoys the right to water, as soon as possible. Any national measures designed to realize the right to water should not interfere with the enjoyment of other human rights.
Legislation, strategies and policies
46. Existing legislation, strategies and policies should be reviewed to ensure that they are compatible with obligations arising from the right to water, and should be repealed, amended or changed if inconsistent with Covenant requirements.
47. The duty to take steps clearly imposes on States parties an obligation to adopt a national strategy or plan of action to realize the right to water. The strategy must: (a) be based upon human rights law and principles; (b) cover all aspects of the right to water and the corresponding obligations of States parties; (c) define clear objectives; (d) set targets or goals to be achieved and the time‑frame for their achievement; (e) formulate adequate policies and corresponding benchmarks and indicators. The strategy should also establish institutional responsibility for the process; identify resources available to attain the objectives, targets and goals; allocate resources appropriately according to institutional responsibility; and establish accountability mechanisms to ensure the implementation of the strategy. When formulating and implementing their right to water national strategies, States parties should avail themselves of technical assistance and cooperation of the United Nations specialized agencies (see Part VI below).
48. The formulation and implementation of national water strategies and plans of action should respect, inter alia, the principles of non-discrimination and people's participation. The right of individuals and groups to participate in decision-making processes that may affect their exercise of the right to water must be an integral part of any policy, programme or strategy concerning water. Individuals and groups should be given full and equal access to information concerning water, water services and the environment, held by public authorities or third parties.
49. The national water strategy and plan of action should also be based on the principles of accountability, transparency and independence of the judiciary, since good governance is essential to the effective implementation of all human rights, including the realization of the right to water. In order to create a favourable climate for the realization of the right, States parties should take appropriate steps to ensure that the private business sector and civil society are aware of, and consider the importance of, the right to water in pursuing their activities.
50. States parties may find it advantageous to adopt framework legislation to operationalize their right to water strategy. Such legislation should include: (a) targets or goals to be attained and the time‑frame for their achievement; (b) the means by which the purpose could be achieved; (c) the intended collaboration with civil society, private sector and international organizations; (d) institutional responsibility for the process; (e) national mechanisms for its monitoring; and (f) remedies and recourse procedures.
51. Steps should be taken to ensure there is sufficient coordination between the national ministries, regional and local authorities in order to reconcile water-related policies. Where implementation of the right to water has been delegated to regional or local authorities, the State party still retains the responsibility to comply with its Covenant obligations, and therefore should ensure that these authorities have at their disposal sufficient resources to maintain and extend the necessary water services and facilities. The States parties must further ensure that such authorities do not deny access to services on a discriminatory basis.
52. States parties are obliged to monitor effectively the realization of the right to water. In monitoring progress towards the realization of the right to water, States parties should identify the factors and difficulties affecting implementation of their obligations.
Indicators and benchmarks
53. To assist the monitoring process, right to water indicators should be identified in the national water strategies or plans of action. The indicators should be designed to monitor, at the national and international levels, the State party's obligations under articles 11, paragraph 1, and 12. Indicators should address the different components of adequate water (such as sufficiency, safety and acceptability, affordability and physical accessibility), be disaggregated by the prohibited grounds of discrimination, and cover all persons residing in the State party’s territorial jurisdiction or under their control. States parties may obtain guidance on appropriate indicators from the ongoing work of WHO, the Food and Agriculture Organization of the United Nations (FAO), the United Nations Centre for Human Settlements (Habitat), the International Labour Organization (ILO), the United Nations Children’s Fund (UNICEF), the United Nations Environment Programme (UNEP), the United Nations Development Programme (UNDP) and the United Nations Commission on Human Rights.
54. Having identified appropriate right to water indicators, States parties are invited to set appropriate national benchmarks in relation to each indicator. During the periodic reporting procedure, the Committee will engage in a process of “scoping” with the State party. Scoping involves the joint consideration by the State party and the Committee of the indicators and national benchmarks which will then provide the targets to be achieved during the next reporting period. In the following five years, the State party will use these national benchmarks to help monitor its implementation of the right to water. Thereafter, in the subsequent reporting process, the State party and the Committee will consider whether or not the benchmarks have been achieved, and the reasons for any difficulties that may have been encountered (see General Comment No.14 (2000), para. 58). Further, when setting benchmarks and preparing their reports, States parties should utilize the extensive information and advisory services of specialized agencies with regard to data collection and disaggregation.
Remedies and accountability
55. Any persons or groups who have been denied their right to water should have access to effective judicial or other appropriate remedies at both national and international levels (see General Comment No. 9 (1998), para. 4, and Principle 10 of the Rio Declaration on Environment and Development). The Committee notes that the right has been constitutionally entrenched by a number of States and has been subject to litigation before national courts. All victims of violations of the right to water should be entitled to adequate reparation, including restitution, compensation, satisfaction or guarantees of non-repetition. National ombudsmen, human rights commissions, and similar institutions should be permitted to address violations of the right.
56. Before any action that interferes with an individual’s right to water is carried out by the State party, or by any other third party, the relevant authorities must ensure that such actions are performed in a manner warranted by law, compatible with the Covenant, and that comprises: (a) opportunity for genuine consultation with those affected; (b) timely and full disclosure of information on the proposed measures; (c) reasonable notice of proposed actions; (d) legal recourse and remedies for those affected; and (e) legal assistance for obtaining legal remedies (see also General Comments No. 4 (1991) and No. 7 (1997)). Where such action is based on a person’s failure to pay for water their capacity to pay must be taken into account. Under no circumstances shall an individual be deprived of the minimum essential level of water.
57. The incorporation in the domestic legal order of international instruments recognizing the right to water can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Incorporation enables courts to adjudicate violations of the right to water, or at least the core obligations, by direct reference to the Covenant.
58. Judges, adjudicators and members of the legal profession should be encouraged by States parties to pay greater attention to violations of the right to water in the exercise of their functions.
59. States parties should respect, protect, facilitate and promote the work of human rights advocates and other members of civil society with a view to assisting vulnerable or marginalized groups in the realization of their right to water.
VI. OBLIGATIONS OF ACTORS OTHER THAN STATES
60. United Nations agencies and other international organizations concerned with water, such as WHO, FAO, UNICEF, UNEP, UN-Habitat, ILO, UNDP, the International Fund for Agricultural Development (IFAD), as well as international organizations concerned with trade such as the World Trade Organization (WTO), should cooperate effectively with States parties, building on their respective expertise, in relation to the implementation of the right to water at the national level. The international financial institutions, notably the International Monetary Fund and the World Bank, should take into account the right to water in their lending policies, credit agreements, structural adjustment programmes and other development projects (see General Comment No. 2 (1990)), so that the enjoyment of the right to water is promoted. When examining the reports of States parties and their ability to meet the obligations to realize the right to water, the Committee will consider the effects of the assistance provided by all other actors. The incorporation of human rights law and principles in the programmes and policies by international organizations will greatly facilitate implementation of the right to water.
The role of the International Federation of the Red Cross and Red Crescent Societies, International Committee of the Red Cross, the Office of the United Nations High Commissioner for Refugees (UNHCR), WHO and UNICEF, as well as non-governmental organizations and other associations, is of particular importance in relation to disaster relief and humanitarian assistance in times of emergencies. Priority in the provision of aid, distribution and management of water and water facilities should be given to the most vulnerable or marginalized groups of the population.
In 2000, the World Health Organization estimated that
1.1 billion persons did not have access to an improved water supply (80 per
cent of them rural dwellers) able to provide at least 20 litres of safe water
per person a day; 2.4 billion persons were estimated to be without sanitation.
(See WHO, The Global Water Supply and Sanitation Assessment 2000,
Geneva, 2000, p.1.) Further, 2.3 billion persons each year suffer from diseases
linked to water: see
United Nations, Commission on Sustainable Development, Comprehensive
Assessment of the Freshwater Resources of the World, New York, 1997, p. 39.
See paras. 5 and 32 of
the Committee’s General Comment No. 6 (1995) on the economic, social and
cultural rights of older persons.
See General Comment No. 14 (2000) on the right to the
highest attainable standard of health, paragraphs 11, 12 (a), (b)
and (d), 15, 34, 36, 40, 43 and 51.
See para. 8 (b)
of General Comment No. 4 (1991). See also the report by Commission on Human
Rights’ Special Rapporteur on adequate housing as a component of the right to
an adequate standard of living, Mr. Miloon Kothari (E.CN.4/2002/59), submitted
in accordance with Commission resolution 2001/28 of 20 April 2001. In relation
to the right to adequate food, see the report by the Special Rapporteur of the
Commission on the right to food, Mr. Jean Ziegler (E/CN.4/2002/58), submitted in accordance with Commission resolution
2001/25 of 20 April 2001.
See art. 14, para. 2 (h), Convention on the Elimination of All Forms of Discrimination Against Women; art. 24, para. 2 (c), Convention on the Rights of the Child; arts. 20, 26, 29 and 46 of the Geneva Convention relative to the Treatment of Prisoners of War, of 1949; arts. 85, 89 and 127 of the Geneva Convention relative to the Treatment of Civilian Persons in Time of War, of 1949; arts. 54 and 55 of Additional Protocol I thereto of 1977; arts. 5 and 14 Additional Protocol II of 1977; preamble, Mar Del Plata Action Plan of the United Nations Water Conference; see para. 18.47 of Agenda 21, Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992 (A/CONF.151/26/Rev.1 (Vol. I and Vol. I/Corr.1, Vol. II, Vol. III and Vol. III/Corr.1) (United Nations publication, Sales No. E.93.I.8), vol I: Resolutions adopted by the Conference, resolution 1, annex II; Principle No. 3, The Dublin Statement on Water and Sustainable Development, International Conference on Water and the Environment (A/CONF.151/PC/112); Principle No. 2, Programme of Action, Report of the United Nations International Conference on Population and Development, Cairo, 5-13 September 1994 (United Nations publication, Sales No. E.95.XIII.18), chap. I, resolution 1, annex; paras. 5 and 19, Recommendation (2001) 14 of the Committee of Ministers to Member States on the European Charter on Water Resources; resolution 2002/6 of the United Nations Sub-Commission on the Promotion and Protection of Human Rights on the promotion of the realization of the right to drinking water. See also the report on the relationship between the enjoyment of economic, social and cultural rights and the promotion of the realization of the right to drinking water supply and sanitation (E/CN.4/Sub.2/2002/10) submitted by the Special Rapporteur of the Sub-Commission on the right to drinking water supply and sanitation, Mr. El Hadji Guissé.
See also World Summit on Sustainable Development, Plan of Implementation 2002, paragraph 25 (c).
This relates to both availability and to accessibility of the right to adequate food (see General Comment No. 12 (1999), paras. 12 and 13).
See also the Statement of Understanding accompanying
the United Nations Convention on the Law of Non-Navigational Uses of
Watercourses (A/51/869 of 11 April 1997), which declared that, in determining
vital human needs in the event of conflicts over the use of watercourses
“special attention is to be paid to providing sufficient water to sustain human
life, including both drinking water and water required for production of food
in order to prevent starvation”..
See also para. 15,
General Comment No. 14.
According to the WHO
definition, vector-borne diseases include diseases transmitted by insects
(malaria, filariasis, dengue, Japanese encephalitis and yellow fever),
diseases for which aquatic snails serve as intermediate hosts (schistosomiasis)
and zoonoses with vertebrates as reservoir hosts.
For a definition of
sustainability, see the Report of the United Nations Conference on
Environment and Development, Rio de Janeiro, 3-14 1992, Declaration on
Environment and Development, principles 1, 8, 9, 10, 12 and 15; and Agenda 21,
in particular principles 5.3, 7.27, 7.28, 7.35, 7.39, 7.41, 18.3, 18.8, 18.35,
18.40, 18.48, 18.50, 18.59 and 18.68.
“Continuous” means that the regularity of the water
supply is sufficient for personal and domestic uses.
In this context,
“drinking” means water for consumption through beverages and foodstuffs.
“Personal sanitation” means disposal of human excreta. Water is necessary for
personal sanitation where water-based means are adopted. “Food preparation”
includes food hygiene and preparation of food stuffs, whether water is
incorporated into, or comes into contact with, food. “Personal and household
hygiene” means personal cleanliness and hygiene of the household environment.
See J. Bartram and G. Howard, “Domestic water quantity,
service level and health: what should be the goal for water and health
sectors”, WHO, 2002. See also P.H. Gleick, (1996) “Basic water requirements for
human activities: meeting basic needs”, Water International, 21, pp.
83-92.
The Committee refers States parties to WHO, Guidelines for drinking-water quality, 2nd
edition, vols. 1-3 (Geneva, 1993) that are “intended to
be used as a basis for the development of national standards that, if properly
implemented, will ensure the safety of drinking water supplies through the
elimination of, or reduction to a minimum concentration, of constituents of
water that are known to be hazardous to health.”
See also General Comment
No. 4 (1991), para. 8 (b), General Comment No. 13 (1999) para. 6 (a)
and General Comment No. 14 (2000) paras. 8 (a) and (b). Household includes
a permanent or semi-permanent dwelling, or a temporary halting site.
See para. 48 of this
General Comment.
See arts. 20, 26, 29 and
46 of the third Geneva Convention of 12 August 1949; arts. 85, 89 and 127
of the fourth Geneva Convention of 12 August 1949;
arts. 15 and 20, para. 2, United Nations Standard Minimum Rules for the
Treatment of Prisoners, in Human Rights: A Compilation of
International Instruments (United Nations publication, Sales No.
E.88.XIV.1).
See General Comment No.
3 (1990), para. 9.
For the
interrelationship of human rights law and humanitarian law, the Committee notes
the conclusions of the International Court of Justice in Legality of the Threat or Use of Nuclear Weapons
(Request by the General Assembly), ICJ Reports (1996) p. 226, para. 25.
See arts. 54 and 56,
Additional Protocol I to the Geneva Conventions (1977), art. 54,
Additional Protocol II (1977), arts. 20 and 46 of the third Geneva Convention
of 12 August 1949, and common article 3 of the Geneva Conventions of 12 August 1949.
See footnote 5 above, Agenda 21, chaps. 5 ,7 and 18; and the World Summit
on Sustainable Development, Plan of Implementation (2002), paras. 6 (a),
(l) and (m), 7, 36 and 38.
See the Convention on
Biological Diversity, the Convention to Combat Desertification, the United
Nations Framework Convention on Climate Change, and subsequent protocols.
Article 14, para. 2, of
the Convention on the Elimination of All Forms of Discrimination Against Women
stipulates States parties shall ensure to women the right to “adequate living
conditions, particularly in relation to […] sanitation”. Article 24, para. 2,
of the Convention on the Rights of the Child requires States parties to “To
ensure that all segments of society […] have access to education and are
supported in the use of basic knowledge of […] the advantages of […] hygiene
and environmental sanitation.”
The Committee notes that
the United Nations Convention on the Law of Non-Navigational Uses of
Watercourses requires that social and human needs be taken
into account in determining the equitable utilization of watercourses, that
States parties take measures to prevent significant harm being caused, and, in
the event of conflict, special regard must be given to the requirements of
vital human needs: see arts.
5, 7 and 10 of the Convention.
In General Comment No. 8 (1997), the Committee noted
the disruptive effect of sanctions upon sanitation supplies and clean drinking
water, and that sanctions regimes should provide for repairs to infrastructure
essential to provide clean water.
See para. 23 for a definition of “third parties”.
See
E. Riedel, “New bearings to the State reporting procedure: practical ways to
operationalize economic, social and cultural rights – The example of the right
to health”, in S. von Schorlemer (ed.), Praxishandbuch UNO, 2002,
pp. 345-358. The Committee notes, for example, the commitment in the 2002 World
Summit on Sustainable Development Plan of Implementation to halve, by
the year 2015, the proportion of people who are unable to reach or to afford
safe drinking water (as outlined in the Millennium Declaration) and the
proportion of people who do not have access to basic sanitation.
Principle 10 of the Rio Declaration on Environment and Development (Report of the United Nations Conference on Environment and Development, see footnote 5 above), states with respect to environmental issues that “effective access to judicial and administrative proceedings, including remedy and redress, shall be provided”.