Reporting procedure to the ICESCR
The ICESCR was adopted by General Assembly Resolution 2200 A (XXI) of 16 December 1966. The Covenant reflects the commitments adopted after World War II to promote social progress and better standards of life, reaffirming faith in human rights and employing the international machinery to that end.
Since the ICESCR is an international human rights treaty, it creates legally binding international obligations to those States that have agreed to be bound by the standards contained in it. As of November 2006, 155 States are parties to the ICESCR, thus, it can be seen as a treaty that reflects global consensus on the universal human rights standards that apply to the economic, social and cultural fields.
5.1. Overview of the Rights Envisaged in the ICESCR
The Preamble of the Covenant recognises, inter alia, that economic, social and cultural rights derive from the “inherent dignity of the human person” and that “the ideal of free human beings enjoying freedom of fear and want can only be achieved if conditions are created whereby everyone may enjoy his economic, social and cultural rights, as well as civil and political rights.” Furthermore, the overarching principles of the Covenant are: (1) equality and non-discrimination in regard to the enjoyment of all the rights set forth in the treaty; and (2) States parties have an obligation to respect, protect and fulfil economic, social and cultural rights.
The Covenant recognises the following rights:
- The right to work (Article 6);
- The right to just and favourable conditions of work (Article 7);
- The right to form and join trade unions and the right to strike (Article 8);
- The right to social security including social insurance (Article 9);
- The right to protection and assistance for the family and the prohibition of child labour (Article 10);
- The right to an adequate standard of living for oneself and one’s family, including adequate food, clothing and housing and to the continuous improvement of living conditions (Article 11);
- The right to the highest attainable standard of physical and mental health (Article 12);
- The right to education, the freedom of parents to choose schools other than those established by public authorities (Articles 13 and 14); and
- The right to take part in cultural life and to benefit from scientific progress (Article 15).
States become parties to an international treaty through ratification or accession. When a country becomes a State party to the ICESCR, it voluntarily accepts a range of legally binding obligations to promote the realisation of economic, social and cultural rights at the national level. Moreover, upon ratification or accession to the ICESCR, a State party is also offering itself to the scrutiny of an international committee of independent experts (the Committee on ESCR) on the basis of these norms and standards.
It is also important to note that when governments become States parties to the ICESCR, they can identify that they will not be bound to particular provisions. This is known as “entering a reservation.” Sometimes States parties can also make declarations and these have the same effect as reservations.
The Committee on Economic, Social and Cultural Rights is the supervisory body of the International Covenant on Economic, Social and Cultural Rights. It was established under United Nations Economic and Social Council (ECOSOC) Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the ECOSOC in Part IV of the ICESCR.
The ECOSOC is the primary body dealing with the economic, social, humanitarian and cultural work of the United Nations system. ECOSOC oversees five regional economic commissions and six “subject-matter” commissions, along with a sizeable system of committees and expert bodies. ECOSOC is composed of 54 member States, elected by the United Nations General Assembly for three-year terms.
The Committee on Economic, Social and Cultural Rights is composed of eighteen independent experts. Members of the Committee are elected by ECOSOC by secret ballot from a list of persons who qualify as “experts in the field of human rights” and who have been nominated for that purpose by the States parties. Members are elected for four years and are eligible for re-election (Res. 1985/17 of 28 may 1985).
The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group. The Committee also publishes its interpretation of the provisions of the Covenant, known as general comments.
5.4. Overview of the Reporting Process
All United Nations human rights treaties includes a system of periodic reporting. States parties to these treaties are obliged to report periodically to a supervisory body on the implementation at the domestic level of the treaty in question. Pursuant to Articles 16 and 17of the ICESCR, States parties are obliged to submit periodic reports to the Committee on Economic, Social and Cultural Rights within two years of the entry into force of the Covenant and from then on every five years. The reports should reflect the extent to which the rights are being realized in the country concerned, including the “factors and difficulties affecting the degree of fulfillment of the obligations under the Covenant.”
In general, the reporting mechanism consists of the following stages:
The submission of the State’s Report:
Each State party to the ICESCR must prepare their national report following the corresponding reporting guidelines and submit it for examination in a given timeframe. In addition to the State report, the treaty bodies receive information provided in particular by NGOs and agencies of the United Nations.
The pre-session working group and the “list of issues”:
Prior to each Committee session, a few members of the Committee meet in order to identify in advance the questions which will constitute the principal focus of discussion with State representatives during the constructive dialogue (the discussion between government representatives and Committee members). This “pre-sessional working group” prepares a list of issues to be taken into consideration when examining the State party report, which is transmitted to the permanent delegation of the State concerned. The idea is to provide the State with the opportunity to prepare answers in advance and thereby to facilitate dialogue with the Committee. States should provide written replies to the list of issues well in advance of the session, in order to make these available to the Committee members in the respective working languages.
The Constructive Dialogue:
As mentioned, the discussion between government representatives and Committee members is called the ‘constructive dialogue’. States are encouraged to be present at the meeting when their reports are examined.
The Concluding Observations:
The final phase of the examination of State reports is the drafting and adoption of the Committee’s “Concluding Observations”. In general terms, in the Concluding Observations, the Committee gives an introduction to this document, recognizes some factors and difficulties that affect the implementation of the Covenant, highlights some positive aspects related to ESCR within the State and finally sets down some aspects of concern as well as recommendations.
5.5. General Comments by the Committee
General Comments are authoritative statements by the Committee on Economic, Social and Cultural Rights on the meaning of the provisions in the ICESCR. General Comments aim to clarify the understanding of substantive areas of the Covenant and on the obligations of the State. At a more practical level, General Comments also point to information that should be included in State Party reports.
List of general comments adopted by the Committee on Economic, Social and Cultural Rights
No. 2 (1990): on international technical assistance measures (art. 22 of the Covenant);
No. 3 (1990): on the nature of States parties’ obligations (art. 2, para. 1, of the Covenant);
No. 4 (1991): on the right to adequate housing (art. 11, para. 1, of the Covenant;
No. 5 (1994): on persons with disabilities;
No. 6 (1995): on the economic, social and cultural rights of older persons;
No. 7 (1997): on the right to adequate housing (art. 11, para. 1, of the Covenant): forced evictions;
No. 8 (1997): on the relationship between economic sanctions and respect for economic, social and cultural rights;
No. 9 (1998): on domestic application of the Covenant;
No. 10 (1998): on the role of national human rights institutions in the protection of economic, social and cultural rights;
No. 11 (1999): on plans of action for primary education (art. 14 of the Covenant);
No. 12 (1999): on the right to adequate food (art. 11 of the Covenant);
No. 13 (1999): on the right to education (art. 13 of the Covenant);
No. 14 (2000): on the right to the highest attainable standard of health (art. 12 of the Covenant);
No. 15 (2002): on the right to water (arts. 11 and 12 of the Covenant);
No. 16 (2005): on the right of men and women to the enjoyment of all economic, social and cultural rights (art. 3 of the Covenant)
No. 17 (2005): on the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author (art. 15 (1) (c) of the Covenant)
No. 18 (2005) on the right to work (art. 6 of the Covenant).