The International Covenant on Economic, Social and Cultural Rights and the monitoring of its enforcement

The International Covenant on

Economic, Social and Cultural Rights

and the monitoring of its enforcement

 

Paraskevi Naskou-Perraki

Professor at Macedonia University, Greece

Contribution to the N.Aliprantis, I.Papageorgiou(eds.), Social Rights-Challenges at European, Regional and International Level, Bruylant, Bruxelles, 2010, pp. 179-213

 

 

Introduction

The International Covenant on Economic, Social and Cultural Rights (hereinafter Covenant)[1] is characterized alongside with the Covenant on Civil and Political Rights (hereinafter ICCPR)[2] and the Universal Declaration of Human Rights (hereinafter UDHR)[3] as the Bill of human rights on the international level.

The proceedings for the adoption of these two Covenants lasted nearly 20 years, an especially long period with an intense political character which was the reason of the division of the Covenants into two separate texts. [4] The Cold war and, on the other side, the denial to introduce a control mechanism for the application of all economic, social and cultural rights divided the U.N. Member States and as a result divided also human rights into two categories. [5]

The ICCPR envisaged the creation of a Committee[6] as well as the possibility of an individual communication with the Optional Protocol[7] which was not included in the Covenant to begin with, while the aforementioned communication has been only recently incorporated.[8]

The Covenant guarantees a number of economic, social and cultural rights (some of which we find originally in the UDHR[9]) and does not only list these rights but goes further by defining and analyzing them in order to facilitate the signatories in the “steps”[10] they must take  up for their application. The number of these rights is bigger than the number of rights which are listed in the UDHR, but they offer smaller coverage compared to the European Social Charter which was adopted in 1961.[11] However it is considered to be the first international act, on global level, which deals meticulously with economic, social and cultural rights.

 

1. COVENANT CONTENT

The Covenant is divided in five parts. The first part consists of article 1 and establishes the right of people to self-determination. The second part, articles 2-5 includes the general obligations of States parties to the Covenant, the principles pertaining to the rights that are guaranteed by the Covenant as well as the possibility to restrict these rights. The third part, articles 6-15, is dedicated to the substantive provision of the individual rights which are divided into three categories: a) the right to employment in a fair and propitious environment, b) the right to social protection, to a satisfying living and a high level of physical and mental health and c) the right to education and enjoyment of the advantages of cultural freedom and scientific progress.

The fourth part, articles 16-25, includes provision which are related to the procedure of implementation of the Covenant by States parties and the fifth part, articles 23-31, refer to the final provisions.

Both Covenants are international legislative acts and States, after their ratification, are obliged to respect their obligations derived from the Covenants or to respect the above rights and incorporate them in their national legislation. If not, they are held liable by the international community and they respond to the non-compliance with the articles that they guarantee for the people living on their territory.

 

II.RIGHTS GUARANTEED BY THE COVENANT

 

A.Right to self determination (article 1)

Article 1 of the Covenant guarantees the right of all peoples to self-determination.[12] It affirms that the principle of self-determination is universal and requires States to undertake two obligations: to promote the realization of the above right of self-determination and respect that right in conformity with the obligation derived from the Charter of the UN. People will be able to dispose their natural wealth freely, within the limits of their obligations, which derive from international law and based upon the principle of mutual benefit.[13] This article is of fundamental significance for the international legal system and concerned the United Nations since the early days of its creation in 1945, due to the fact that a large number of States where under colonial regimes. It is thought that the consolidation of this right is a prerequisite for the enjoyment of the rest of the individual rights, but also ensures the independence of States and their democratization. Also, by following the above prerequisites they invoked the need to ensure and empower the protection mechanisms of the rights of people.

 

B.Obligations of States parties

 

1.Adoption of necessary means for the application of the rights (article 2)

According to article 2§1 States parties undertake the obligation for the progressive realisation of the rights recognised in the present Covenant by all appropriate means they have at their disposal. The content of this article was exceptionally broad, lacking the essential obligation on behalf of the States and was broadly criticized.[14] It should be emphasised, though, that measures, in particular legislative measures, are always to be taken according to the non-discrimination principle (article 2§2).

The extent of application of these measures to citizens and to non-citizens, for developing countries, will be specified by the States themselves taking into consideration human rights issues and their national economy. (article 2§3)

In General Comment 3[15] the Committee (the Covenant Committee) considered that article 2 was extremely important, not only in its own accord, but in order to understand the rest of the articles of the Covenant, since as it was underlined therein there is a strong tie between them. The content of the article refers to the legal obligations of States and to the need of undertaking legislative measures. The Committee stresses that in many cases legislation is necessary and in some cases it is inevitable. States are aware of the need of adequate legislation and concentrate their efforts towards adopting the appropriate measures. The real question here is which the appropriate measures are. This is to be considered by States who are obliged, according to the Committee, to list down in their reports not only the measures that were taken but the reason why those were considered to be the most suitable ones under the specific circumstances. Finally, it is the Committee’s task to consider whether the measures are the “appropriate” ones. As an example of an “appropriate” measure of article 2§1 of the Covenant the Committee mentions the right to legal redress as provided by other international human rights instruments, i.e. the ICCPR.

Also the States are obliged to inform the Committee with regard to the implementation of economic, social and cultural rights in their national legislation and their Constitution and whether these rights are justiciable or not.

Under article 2§1, States are obliged to adopt appropriate measures to the maximum of their available resources by all appropriate means. Where a State fails to do so, it will have to prove that it undertook every possible means in order to fulfil its primary obligations.

The Committee emphasizes that according to articles 54 and 56 of the U.N. Charter, the principles of International Law, and the provisions of the Covenant, international co-operation for the development of economic, social and cultural rights is an obligation for all States.

In General Comment 10[16], the Committee, trying to analyze the phrase “States will take measures…..”, suggests the establishment of national institutions for the promotion and protection of human rights, i.e. national committees for human rights. The Committee lists a series of potential actions of these national committees, in order to assist States in a more effective application of the rights guaranteed by the Covenant.

 

2.Equality between men and women (article 3)

Article 3 of the Covenant guarantees the right of equality between men and women, a right provided by all international acts of human rights protection[17]. The essence of article 3 is that all rights set forth in the Covenant must be enjoyed on the basis of equality, according to the laws and measures the States introduce[18]. It is noteworthy that all General Comments which were adopted by the Committee were related to the gender equality[19]. The guarantee of the application of this right is at the states’ discretion. The provision does not refer to the introduction of positive action in favour of a group of people in order to attain equality (affirmative action)[20], although it is clear, according to the Committee, that States may adopt similar measures[21].

In General Comment 16 the Committee clarifies that in order to ensure gender equality, States may temporarily adopt measures in favour of women in order to alleviate any form of discrimination. The measures must aim in the elimination of all forms of discrimination.[22] These measures should aim towards the elimination of prejudice, behaviour and practices that create a feeling of superiority or inferiority for any of the two sexes and the stereotypes of their roles, and must be differentiated by the goals and the strategy which aim towards gender equality.

In General Comment 5 the Committee underlined that States must be especially careful with disabled women, who are subjected to double discrimination and should address this issue as a high priority one[23]. At the same time in General Comment 6[24] it stresses that States should give weight to the protection of senior women, who usually lack the financial funds but of which the constant and continuous offer to the household has no financial acknowledgement.

 

3.Limitations to rights (articles 4 and 5 )

Limitations to the exercise of human rights in international acts protecting human rights are common practice as long as they are determined by law, and are necessary in a democratic society, in the interests of national security or public order or for the protection of the rights and freedoms of others.[25]

Article 4 of the Covenant recognizes that the enjoyment of rights may be limited by legal means “only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society”. The scope of the article is broad and general; it provides the States with the possibility of justifying any legislative measures which limit the enjoyment of these rights.

Article 5 provides that no State, group or person may take any actions against the recognized rights by the Covenant or adopt limitations greater than the ones provided by the Covenant itself. It even considers unacceptable “any derogation or limitation of the fundamental human rights recognized or existing in any country in virtue of law, conventions, regulations or custom on the pretext that the present Covenant  does not recognize such rights or that it recognizes them to a lesser extent.” The Committee has not dealt with this issue yet in any of its General Comments. It is believed that it should have been addressed given the fact that the issue of limitations of rights is essential and delicate since it provides to States the possibility to justify the limitations of rights of the Covenant according to what they consider necessary. It is interesting to note that the Covenant does not have a derogation clause as the ICCPR[26] does. This leads to the question: What could happen to these rights in case of public threat or danger or any other force majeure which leads States to derogate?[27] Will the government be able to suspend all the rights which are guaranteed by the Covenant or some of them? The question as simple as it may seem, requires further reflection, given that the practice of 50-years human rights protection has led to the conclusion that certain rights have obtained a special status when compared to others, such as he right to self-determination, gender equality, the right to food, to water, etc. Therefore, one could suggest that in the framework of this Covenant rights such as the right to self-determination, gender equality, the right to food, to water, should be considered as non-derogable rights.

 

1. Economic, social and cultural rights

 

1.The right to employment in a fair and  propitious environment

 

1. a) The right to work (article 6)

The right to work constitutes the right of the person to choose and accept employment in order to earn an income necessary for his/her survival. It is characterized as a fundamental right since the employee with his/her income may further enjoy the right to nourishment, clothing, housing, health and education which are guaranteed by this Covenant.

The right to work includes the possibility of accessing employment as well as the unjustifiable deprival of employment. States are obliged to take all necessary measures which will guarantee the full exercise of this right, including the technical and professional education, and courses which will help people enjoy their fundamental political and economic freedoms.

The Committee, in General Comment 18[28], tried to clarify the scope of the article by stressing that the right to work is necessary for the enjoyment of other rights as being a crucial element of human dignity. States must ensure that there are suitable working conditions and abolish or counter forced labour. It is accepted therein that there are obstacles and international factors which complicate the full application of article 6, but it stresses out that the necessary elements for the exercise of this right is first availability and secondly accessibility. Accessibility is interpreted as prohibition of discrimination in access to and maintenance of employment on the grounds of race, colour, gender, language, religion, political or other opinion, national and social origin, property, birth, physical or mental disability, health status (AIDS), sexual orientation, the political and social situations which may result in nullifying the exercise of this right. States must take all measures towards the eradication of discrimination and to ensure the access of people with disabilities to employment and finally they should ensure the quality and the existence of safe working conditions within the working environment. In particular the General Comment is referring to:

• women and the right to work;
• youth and the right to work;
• child labour and the right to work;
• older people and the right to work;
• people with disabilities[29] and the right to work; and
• immigrants and the right to work.

The Committee considers the following issues as very important, namely the existence of a national legal system whereby the right to work is recognised and the need for a national strategy and an employment policy aiming in the financial growth and the combat against unemployment and underemployment. Also, States must aim in the decrease of the unemployment rate especially in the case of women, underprivileged and marginalized persons. Furthermore, States must establish a compensation mechanism for redundancy whereby benefits shall be granted, and vocational services according to which people may familiarize themselves with the right to work.

 

b)The right to enjoy just and favourable conditions of work (article 7)

Apart from the right to work, the Covenant guarantees every person’s right to just and favourable working conditions which include fair payment adequate to ensure a decent life. Special reference is made to the equal payment for women on a non-discrimination basis, the safe and hygiene working conditions, rest, comfort and the limitation of work during the holidays and the payment of holidays. The content of this article’s language refers to a series of international conventions that have been adopted by the International Labour Organisation (ILO)[30] and which are binding for the States that have ratified them.

 

c)The right to form and join trade unions (article 8)

It refers to a right which is linked to the right of association widely recognised by all international acts of human rights protection. In particular, article 8 enunciates the right of a person to form trade unions and join trade unions of his/her choice; the right of trade unions to establish national federations and confederations; the right of the trade unions to function freely according to the law and the right to strike in conformity with the law. Restriction may be imposed on members of armed forces or the police or the state’s administrative officials. Special emphasis is made on §3 of this article with regard to the content of the ILO Convention of 1948 concerning the Freedom of Association and Protection of the Right to Organise which should be taken under consideration

 

2.The right to social protection, to a satisfying living and a high level of physical and mental health

 

a)The right to social security including social insurance(article 9)

The right to social security includes the right to social insurance given that the social security systems of many countries do not cover all the rights which are guaranteed by the Covenant.

This right is provided in a general context without specifying the type or level of protection that must be guaranteed by States. It is useful for this purpose to examine the ILO conventions[31] in order to explain in more detail their content as well as the European Social Charter and its Protocols. The Committee in General Comment 5 requires States to undertake special measures for people with disabilities. [32]

 

b)Protection of the family, mothers and children (article 10)

States recognise that the maximum possible protection and aid must be provided to the family[33] for all the time that it is responsible for the care and education of the dependent children. The term ‘family’ is widely interpreted, according to local morals and customs.

The article which deals in a more detailed way, than the equivalent UDHR,[34] includes in specific the right of the person to contract marriage[35] freely choosing a spouse, the protection of motherhood before and after the birth of her child[36], the protection of children and young persons.[37] Special measures of protection are taken for children and young persons in order to protect them from social and economic exploitation, from employment in harmful work for their morals, their health and which may create problems to their physiologic growth. People with disabilities must have the necessary access to conciliatory services in order to fulfil their obligations and rights they have within the family.

States are obliged to determine the age limit under which payed child labour is forbidden and punished by law[38].

 

 

 

c)The right to an adequate standard of living(article 11)

This article[39] includes the right to an adequate standard of living for the person as well as his/her family which will include suitable nourishment[40], clothing and housing and which creates for States an obligation of continuous improvement.

The basic right of the protection of every person from hunger is undertaken by States so as to eradicate it either by adopting and implementing themselves the appropriate measures or in collaboration with other States through programmes of fair distribution of the world’s food reserves.[41]

The right to adequate housing which derives from the right to an adequate standard of living is vital for the enjoyment of economic, social and cultural rights.

The Committee in examining the large number of reports relating to the issue of housing and taking into consideration the efforts of the United Nations on this issue[42], noted the existence of the problem of housing so much in the developing world as well as in the developed world.[43]

The Committee considered, in General Comment 4[44], that the right to adequate housing should be interpreted in broad way, including -apart from the “roof over everyone’s head”- the right to a peaceful, secure and dignified living. Adequate housing entails sufficient space, light, sufficient infrastructure and location, security and basic conveniences all in reasonable frames and on a minimum cost basis.

In General Comment 7[45] the Committee dealt more specifically with the issue of forced eviction and house demolition as a punitive measure, a practice in effect in many parts of the world. It stressed the sensitivity of the international community towards this issue[46] and tried to offer a definition of the concept of “forced evictions”. The Committee defines the term as “a permanent or temporary removal against their will of individuals, families or communities from their land or residence without the provision of, and access to, appropriate forms of legal or other protection”. The evictions which take place according to national law and the provisions of the two Covenants do not fall within the ambit of this definition. On the contrary, forced transfer of populations, internal displacement (especially due to armed conflicts and internal strife), mass exits and refugee movements, even forced eviction which takes place in the name of development fall within the limits of this definition.

The Committee requests from States to take all appropriate measures and in particular legal ones which will ensure the protection of residence and will comply with the articles of the Covenant and even provide for the penal punishment of these illegal evictions.

The adequate protection and the right to access the legal recourses and remedies are important rights the guarantee of which is imperative in situations of evictions. These include a) an opportunity of consultation with the affected persons in cases where eviction is imminent b)adequate and reasonable notice to the affected persons before the scheduled date of eviction c) information for the proposed evictions and reasonable-in-time provision of alternative residence or land when this is available d) especially when evicting groups the presence of governmental authorities or their representatives e) certification of competent authorities which carry out the eviction f)not to carry out the evictions at night or under bad weather condition unless those that are evicted consent to this g)provision of legal aid in order to counter the eviction. Finally it is the States obligation to disseminate sufficient information to the Committee on issues of forced evictions.

The Committee issued two more General Comments in order to interpret article 11. These are General Comment 12[47] related to the right of sufficient food and General Comment 15[48] related to the right to water. It should be stressed out that the substance of the content of the right to sufficient food includes, on one hand, the availability of food in quality and quantity able to fulfil the alimentary need of persons within the frame of their cultural habits, and, on the other hand, the accessibility in such a way which does not violate the enjoyment of other human rights.

 

d)The right of each person to the highest attainable standard of physical and mental health (article 12)

States recognise the right to physical and mental health and adopt measures for its enjoyment and guarantee. They guarantee the reduction of child mortality and the creation of a healthy environment for the upbringing of children, the improvement of environmental protection as well as the protection from epidemics and the establishment of medical services and health care.

The World Health Organisation (WHO) through its health programmes assists in the protection of this right. In its Statute declares that “the enjoyment of health constitutes one of the fundamental rights of the person without any discrimination”[49], and as a consequence it is related with a number of human rights, i.e. the right to food, housing, work, education, life, non-discrimination, equality, prohibition of torture, privacy, assembly, movement. The Committee dealt especially with this right in General Comment 14[50], stressing out that health is a “fundamental human right indispensable for the exercise of other rights”. This right includes the right to control one’s health and body, including sexual and reproductive freedom, the right to be free from interference like to be free from torture, non-consensual medical treatment and experimentation, and the right to access the health system with equal chances and possibilities in order to enjoy the highest possible level of health. The last sentence is further analysed by the Committee stating that each person’s biological factor should be taken into account as well as the social and financial circumstances in each country.

There should be availability and accessibility to health services with no discrimination especially for pregnant women, children, older people, people with disabilities, and indigenous people. States must adopt a number of legal and other measures in order to build a health system capable of satisfying the needs of its citizens.

 

3.Right to education and enjoyment of the advantages of cultural freedom and scientific progress

 

a)Right to education (article 13 and 14)

The Covenant dedicates two articles (13 and 14) to the right to education, a right of fundamental significance for the “development of a person’s personality and the sense of human dignity”[51]. This right has been characterized as an economic, social and cultural right. The Committee believes that it contains elements from all three categories of rights[52] and that it can be characterized as a civil or a political right at the same time since the right to education is stationed “within the centre of full and effective enjoyment of all these rights”[53]. The §1 of article 13 points out that education makes every person capable of playing a significant role within the society and may help the international community towards the maintenance of peace.

In order for all the above to be achieved States must provide to all free primary education which will be compulsory, secondary education, technical and vocational training accessible to all and free, accessibility to higher education with equal opportunities for all also free, supplementary education to those that lack it and scholarships to those that do not have the sufficient financial means[54]. Special reference is made to the liberty of parents or guardians to choose the schools of their children, public or not.[55]

The Committee issued two General Comments providing States with guidelines regarding the right to education for which it considered that there is no obligation of immediate application[56]. In the first (number 13) it requests all States to ensure the accessibility of all children to primary education in compliance with three principles: a) the one of non- discrimination b)opportunity of attending classes even with courses of “distance learning” c)access for all students even those lacking the financial resources.

It is also clarified that it is the States’ obligation to take concrete steps to create a system of free secondary and higher education wherever there is no such system. Special emphasis is given by the Committee on the technical and vocational education because it provides young people with vocational rehabilitation[57].

The right to education is guaranteed by a number of international conventions that have been adopted within the UNESCO[58] as well as of other International Organisations’ framework.[59]

States that have not been able to establish for any reason within their territory or in any other jurisdiction free education are obliged to adopt within a two-year timeframe a complete educational program for the enjoyment of this right.[60]

The Committee in General Comment 11 prompts States to request the assistance of International Organisations such as ILO, UNESCO, IMF, World Bank, UNICEF in the preparation of an action plan and for the provision of free and obligatory education by asking at the same time from the above Organisations to give any help they might be asked of.

 

b)The right of participation in the cultural life (article 15)

The content of this article includes different rights which are connected and interact closely with the economic and social rights.

Each individual has the right of participation in the cultural life, in the enjoyment of the outcomes of scientific research and their application as well as the protection of their creative activity. States undertake the responsibility of respecting the right to scientific research and to encourage the co-operation and communication with other States so much in the field of research as well as in training.

The Committee adopted General Comment 17[61] in order to aid states in the analysis, interpretation and application of article 15. According to the Committee, necessary elements of this right is the availability (i.e. the existence of sufficient legal and administrative measures), the accessibility, (i.e. administrative, judicial and other necessary measures for the protection of these interests from scientific, intellectual and artistic achievements, the physical and economic accessibility to information as well as the quality of the provided protection). In order to achieve a wider application of this right the refraining from any kind of discrimination and the principle of equal treatment are recommended although at the same time the right may be subject to limitations.[62]

 

 

III. THE MECHANISM FOR THE APPLICATION OF THE COVENANT

 

1. The Committee of Economic, Social and Cultural Rights

 

The body responsible for examining the application of the provisions of the Covenant is the Committee of Economic, Social and Cultural Rights (hereinafter the Committee).

Contrary to other international acts protecting human rights[63], there is no reference to the Committee within the text of the Covenant. The Covenant mandates the Economic and Social Council (hereinafter the ECOSOC) to consider the periodic reports which must be submitted by States through the Secretary General of the United Nations[64]. The reports are submitted by the founding States two years after the entering into force of the Covenant and by the signatory States two years after the ratification of the Covenant. From then on, the States are obliged to inform about the application of the provisions of the Covenant every five years.[65] These reports are forwarded to Specialised Agencies of the U.N. system as long as the whole report or parts of it fall within the authority of these Organisations[66]. With arrangements made between the Specialised Agencies and the ECOSOC they can send the reports regarding the progress of their efforts to put into effect the provisions of the Covenant.[67] They can also be sent to the Committee of Human Rights.[68] The ECOSOC considers the reports and moves to recommendations of general content towards the General Assembly.[69]

In order to fulfil the above obligation the ECOSOC composed in 1978 a 15 member working group to help with its work, which consisted of representatives of States which were also members of the Covenant and represented all the geographical areas of the member States of the ECOSOC.[70]

The mandate was for one year and it begun its work in April 1979 by examining the annual reports[71]. The contribution of this subsidiary body was heavily criticised for many and different reasons even for its year long mandate, which did not allow the continuity in its work resulting in some changes made by the ECOSOC[72].

In 1982 after four sessions the working group, that was designated by the President of the ECOSOC was transformed to an elected body consisting of governmental experts on issues of human rights[73] and this body later on evolved by an ECOSOC[74] Resolution in 1985, to the Committee[75]. That was when the Covenant was enlisted as one of the international acts that had its own control mechanism through a Committee.[76] The Committee adopted its rules of procedure in 1989, which were modified in 1990 and 1993[77].

 

1. Composition

 

The Committee consists of 18 members, independent experts in the field of human rights who are elected by the ECOSOC by a secret ballot from a list of candidates which are proposed by the States Parties of the Covenant[78]. The members of the Committee represent all the geographical areas of the world as well as all the social and legal systems. They act in their personal capacity regardless of which States they represent.

In its current composition the Committee consists of 14 men and 4 women, of different professions, in majority with a legal background. This composition was criticised[79] due to its lack of a competent number of economists which is considered to be a disadvantage for an international treaty that includes economic right and as a result avoiding the discussion of economic issues, crucial for the promotion of the Covenant’s content during the oral mainly procedure.

The members of the Committee are elected for a period of 4 years with the possibility of re-election as long as they are proposed by the States. The Committee elects its President and three Vice-presidents and its Rapporteur taking always under consideration the geographical representation[80]. The Bureau is elected for two years with the possibility of re-election as long as they are still members of the Committee[81].

 

1. Sessions

 

The first session of the Committee took place in March 1987[82]. The Committee meets twice a year[83] for a period of three weeks per session, usually in May and November or December in the United Nations Headquarter for Human Rights in Geneva. The Sessions are public and a summary of the discussions are published in the press. The date of the meeting is announced by the Secretary General 6 weeks earlier,[84] in consultation with the ECOSOC[85].

The provisional agenda of each session is prepared by the Secretary General in consultation with the President of the Committee and includes pending issues from previous sessions or issues proposed by the President, States parties, members of the Committee or the Secretary-General[86]. The Committee may revise the daily agenda by adding or deleting items[87].

 

1. Functions of the Committee
2. Reports from States parties

 

The main task of the Committee is to monitor the implementation of the provisions of the Covenant. This is achieved through the dialogue it tries to create with States so that they adopt the legal but also administrative measures in order to accomplish the best possible application and enjoyment of the rights concerned. It also aids governments with a line of suggestions and recommendations aiming towards the uniform implementation of the economic, social and cultural rights for everyone.

In order to respond to this task the Committee carries out a detailed examination of the submitted by the States reports. The Committee is also informed, for the application of the provisions that the Covenant guarantees, by States, by NGO’s which have a consultative status in the ECOSOC[88] and by Specialised Agencies of the United Nations, if their wider activities fall within the provisions of the Covenant.[89]

 

1a. Content of the reports

 

The obligation of submitting reports according to the IV part of the Covenant should not be considered as the only procedural issue that all States try to fulfil. The Committee[90] considers the wording and the spirit of the Covenant to be different and through these reports a number of issues are looked up which can be summarised as follows:

1. the need for harmonisation of the national legislation with the provisions of the Covenant,
2. control over the application of the provisions over all citizens within the jurisdiction of the State, identification of those that are disadvantaged and request for help from the Committee if necessary,
3.  the Committee requires States to report the current situation within their country and indicate at the same time the priorities that they have, related to the application of the provisions of the Covenant,
4. participation in the redaction of reports by the authorities of economic, social and cultural life as well as the NGO’s,
5. the need the Committee to be able to judge whether or not progress has been achieved by the application of the provisions of the Covenant, something that can only be done when States create goals which they attempt to achieve,

and,

1. the exchange of information between States will enhance the understanding of the problems that each State faces in its effort to implement the rights guaranteed by the Covenant.

States that do not submit a report are listed in a catalogue kept by the Secretary General. He then informs the Committee accordingly and the latter may recommend to the ECOSOC to send a warning through the Secretary General to the State concerning this obligation which derives from the Covenant[91].

If the States do not respond to this warning then the Committee reports this failure in its annual report to ECOSOC[92].

 

1b. Working group

 

In each Session the Committee examines four to five reports. In order to respond to its task and due to its workload it creates, about six months prior to the examination of the report, a working group consisting of 5 members which is given the task of studying and underlining the issues that require further investigation and discussion. One of the above members create a list with all the issues that in his opinion require further clarifications by the State that submits the report[93]. The working group caucuses for a week in Geneva before the actual session of the Committee.

 

1c. Presentation of the reports

 

The reports are presented before the Committee usually by representatives of the States parties on a date given by the Committee[94]. The Secretary-General informs the State about the date of presentation and its duration[95]. During the oral procedure the representatives reply to the comments and observations of the working group and then the ones of the Committee. After the end of the oral examination the representatives of the States are given a deadline within which they may respond in writing with regard to the more specific issues that the Committee addressed. In case of failing to meet the above requirements States provide additional information within a timeframe set by the Committee which also indicates the way this information will be provided[96]. In case a representative is absent, the Committee proceeds with the examination of that report at the time scheduled[97].

 

1d.The decisions of the Committee

 

After the end of the oral procedure the Committee meets in a closed session and publicly announces its decision at the end of the caucus. The decision which is taken by consensus[98] is mainly based on the observations of the Committee regarding the proper application or not of the provisions of the Covenant by the concerned State. From 1993[99] the decision includes five parts: 1.introduction 2.Positive observations 3.Factors and difficulties from the application of the Covenant 4.Main issues that should be examined 5.Suggestions and recommendations.

The Committee does not hesitate to come to the conclusion that there has been a violation of the provisions of the Covenant and requires the State to refrain from the measures that lead to the violation of specific rights[100]. Although its decisions are not legally binding, they still constitute decisions of the only international instrument in charge of ruling over the violations of the provisions of the Covenant, that has been ratified by such a big number of States.[101]

The fact that many States comply with these indications, take into consideration the recommendations and try to meet their obligations that derive from the Covenant is worth mentioning. In case States delay in complying with the decisions of the Committee, the President addresses to the government a letter stressing the interest of the Committee and the need of the State to comply.

There are though States which do not comply with the above obligation by not submitting their report. In this case the Committee issues continuous notices towards the governments of States reminding them of their commitment taken by ratifying the Covenant and if they even don’t comply then, they examine the status of rights within the specific State according to the information they have in hand.

The Committee has the power of visiting a State which fails to apply the articles of the Covenant and offer technical or other assistance. In this case it informs also the ECOSOC. Before the visit a written invitation by the State is required. So far the Committee has been accepted to provide help on the spot only to Panama and responding to their request visited the country in April 1995.

Finally, the Committee submits to the ECOSOC  an annual report for its activities which contain the concluding observations regarding the reports of States, informs the ECOSOC about the number of States which responded to their obligation of submitting reports[102] and moves to further recommendations and suggestions of a general nature based on the reports of States and Specialised Agencies[103].

 

2. The General Comments

 

Apart from its decisions the Committee may prepare General Comments[104]. These are texts which aim in the interpretation or clarification of terms or provisions of the Covenant, so that they are fully understood and assist the States in fulfilling their reporting obligations[105].

The process of adopting General Comments, a common practice in many international acts protecting human rights[106], was introduced to the current Committee in 1988.

Up to now the Committee has adopted 18 General Comments:

1. No 1 (1989), Reporting by State parties.
2. No 2 (1990), International technical assistance measures (article 22).
3. No 3 (1990), The nature of states obligations (article 2§1).
4. No 4 (1991), The right to adequate housing (article 11,1).
5. No 5 (1994), People with disabilities.
6. No 6 (1995), Economic, social and cultural rights of older persons.
7. No 7 (1997), The right to adequate housing: forced eviction (article 11).
8. No 8 (1997), The relation status between economic sanctions and respect of the economic, social and cultural rights.
9. No 9 (1998), The domestic application of the Covenant.
10. No 10 (1998), The role of national human rights institutions in relating the protection of economic, social and cultural rights.
11. No 11 (1999), Plans of action for primary education (article 14).
12. No 12 (1999), The right to sufficient food (article 11).
13. No 13 (1999), The right to education (articles 13 and 14).
14. No 14 (2000), The right to the highest attainable standard of health (article 12).
15. No 15 (2002), The right to water (articles 11 and 12).
16. No 16 (2005), The equal right of men and women to the enjoyment of the economic, social and cultural rights (article 3).
17. No 17 (2005), The right of everyone to benefit from the protection of moral and material interests resulting from any scientific, literary or artistic production of which he or she is the author (article 15,1).
18. No 18 (2005), The right to work (article 6).

The General Comments can be distinguished into two categories: those that give clear guidelines to State Parties about preparing their reports and applying the provisions within their domestic legal system and on the other hand those that try to contribute to the interpretation of provisions which are related to the fundamental rights of the Covenant.

We have already referred to a number of these during the examination of the provisions of the Covenant but we would like to make a particular reference to one of these due to the interest it provides in relation to the U.N Charter and especially Chapter VII.

General Comment 8[107] expresses the Committees anxiety over the future of the Covenant when the Security Council enforces financial sanctions on countries that violate international law and the obligations that derive from the U.N. Charter. (e.g. sanctions that where enforced in the 1990’s on Iraq/Kuwait, former Yugoslavia, Somalia, Libya, Liberia, Haiti, Angola, Rwanda, Sudan etc.)

The Committee does not question the need of these economic sanctions when it is considered necessary. But even in these cases, the articles of the Charter of the U.N. (articles 1, 55, 56) which are related with human rights must be considered fully applicable.

The Committee believes that the enforcement of economic sanctions should be distinguished between the intention of the sanctions (pressure on the governments to comply with international law) and their bilateral consequences (denial to the populations of their corresponding rights). The Security Council decisions do include exceptions of humanitarian content in order to allow the entrance of basic goods and services to cover the basic needs of the population and in respect of their fundamental rights. These exceptions, though, have proven ineffective.

The Committee considers that the articles of the Covenant should also be applied in cases of economic sanctions albeit the fact that the latter are imposed in defence of international peace and security. Although the Committee has no saying in the enforcement or not of economic sanctions, when measures are taken which hinder a State to comply to its obligations which derive from the Covenant, then the sanctions and the way that they will be imposed are considered to be issues that should be brought to the notice of the Committee because these sanctions do not invalidate or eliminate the obligations of this State as they derive from the Covenant. Although its possibilities are diminished the State retains the obligation to take all necessary measures for the elimination of all discrimination against the enjoyment of rights.

To this purpose the Committee suggests: First the articles of the Covenant should be taken fully under consideration when there a decision is going to be adopted against a State.

Secondly, the control of application of the provisions of the Covenant should be also done during the enforcement of the sanctions.

Thirdly, the body that imposes the sanctions should take special care and all the necessary measures in order to overturn the disproportionate consequences on the rights of sensitive groups.

The Committee wishes to clarify that the citizens of States are not deprived of their fundamental right because of the finding that the Heads of State have violated international peace and security. The goal of the Comment is not for the Committee to support these kind of leaders rather than underline that one violation should not be answered with another one, especially regarding the fundamental rights that the Covenant guarantees.

 

3.Individual Communication

 

3.a. The adoption of the Optional Protocol

The Covenant does not foresee the possibility of an individual communication. Discussions took place on this issue with strong arguments[108]. The deprivation of this right does not help the augmentation of the related case law and mainly does not offer the victims of the violations any possibility of some form of remedy. States believe that the right to individual communication could contribute to the enjoyment of economic, social and cultural rights, will make states more responsible and accountable before the international community, and also contribute to the interpretation of rights which it protects and to the application of such measures on a national scale.

For this purpose the Committee is working since 1990 to prepare a Draft Optional Protocol which will include the possibility of exercising the right of an individual communication[109].

The Committee of Human Rights of the U.N. in its decision on the 20^th of April 2001[110] appointed an independent expert to examine the Draft Optional Protocol to the Covenant. On the 15^th of August 2001[111] the Subcommittee of Human rights adopted with no voting a text in which amongst others requested the urgent the adoption of an Optional Protocol to the Covenant by the Committee of Human Rights[112] which will include the possibility of an individual communication. At the same time it requested the formation of a working group[113] which will exclusively work on the Optional Protocol to the Covenant, and set a deadline for the adoption of the draft on the 54^th Session of the sub committee. This group was created by the Commission of Human Rights[114] taking into consideration the earlier decision of the ECOSOC[115] which predicted its creation and its mandate.

The working group submitted its report in 2004[116] regarding the importance of an Optional Protocol and the dialogue between the experts of human rights, the nature and purpose of the obligations of member states which derive from the Covenant, the discussion over the issue of legally pursuing economic, social and cultural rights as well as the benefits of an Optional Protocol and its practical results.

The Rapporteur of the report[117] asked form member states to renew the term of the group for another 2 years in order to further review the Protocol[118] and a timeframe of ten working days before the summit of the Human Rights Commission in order to work exclusively on that in the presence of a representative of the Committee of the Covenant.

Also, the Rapporteur considered important the existence in the working group of representatives from three Committees of human rights which accept the procedure of individual communication especially from the Committee for the Elimination of all forms of Discrimination against Women, representatives of regional mechanisms of human rights protection, of the International Labour Organisation and UNESCO. Finally she asked a report from the Secretary General with information on the procedure of individual communication in other international acts protecting human rights and within the framework of the U.N. system.[119] The Protocol was transmitted to the G.A. which with Resolution A/RES/63 adopted the Protocol on 10 December 2008. The Protocol has not entered into force yet.

 

3.b.Procedure of communications

 

3.b.i.)Individual communications

The Optional Protocol provides individuals with the right to submit an individual communication before the Committee when one of their rights guaranteed by the Covenant is being violated. The Communication is submitted by an individual or a group of individuals which are under the jurisdiction of a State and claim that they are victims of a violation of any right which is guaranteed in parts II and III of the Covenant. In case the communication is submitted on behalf of individuals or groups of individuals, this must be accompanied by their consent unless the applicant can justify that he is acting on their behalf without such consent[120].

In article 3 of the Protocol the conditions of the admissibility of a communication are enumerated:

• the exhaustion of all local remedies unless this procedure is unreasonable prolonged.
• a year gap between the submission and the exhaustion of all local remedies unless the applicant proves that he was unable to submit the communication within that time.
• the report must be referring to facts that took place in the state after the Protocol was put into effect unless the incident begun before but continued also after the Protocol was effective.
• it must be referring to a specific provision of the Covenant.
• the communication can not be unfounded and should be based exclusively on information that are presented by mass media.
• it can not be an abuse of the right to submit a communication.
• it can not be anonymous or oral.

The Protocol provides the possibility to grant interim measures after the submission of the communication and before the Committee decides on the merits of the case. The Committee asks from the State to take provisional measures according to the extreme situation that has been created in order to avoid any irreparable damage to the victim or victims of the reported violation[121] and passes on the report to the affected Member state which will be giving in six months a written explanation or clarification to the Committee about the possible measures taken.

At the same time the Committee provides its good services to the parties in order to reach a friendly settlement which will be based on the respect of the obligations deriving from the Covenant[122]. The friendly settlement closes the case before the Committee.

The examination of the communication is done behind closed doors and information or documents from other bodies of the U.N are taken into consideration, Specialised Agencies, International Organisations including regional mechanisms of human rights protection etc.[123] The Committee, in order to terminate the violation transmits its opinion to the parties concerned and the member state within six month, shall respond to the Committee providing information on the measures taken.

 

 

3.b.ii.) Inter-state communications

According to the Protocol, the Committee accepts communications from one member state claiming that another member state does not fulfil its obligations under the Covenant. Both states must recognise the competence of the Committee, at any time. In this case the Member state addresses the Member state that has made the violation as well as the Committee. Within three months after the communication has been received the State has to inform the member state that submitted the communication about the measures taken or the domestic procedures that are taking place, pending or available in the matter.

If in six months this issue is not resolved then it can be reported to the Committee which will then deal with the communication after the exhaustion of all domestic remedies. The exception is valid and in this case meaning that the Committee can still take over when the domestic procedure lasts a really long time.

The Committee by providing its good services to the Member states attempts to reach a friendly settlement according to the obligations deriving from the Covenant. After the achievement of a friendly settlement it will redact a report on the actual facts and the solution that was achieved. If a friendly settlement is not reached the Committee in its report will disclose the actual facts and the discussion between the parties and will distribute it only to the parties.

 

4. Interim measures

 

The interim measures are considered to be a special procedure[124] valid only for States that have recognised the Committee’s competence[125]. This act of recognition can be revoked by serving a notification to the Secretary-General[126]. According to this procedure the Committee receives reliable information for grave and systematic violations of rights which are guaranteed in parts II and III of the Covenant by a State and invites that state to co-operate in the examination of this information and to submit observations regarding the information concerned.

After the observations have been received, the Committee designates one or more of its members to conduct an inquiry and if necessary to visit the State and to report immediately with the Committee over the result, in co-operation with the State and in absolute secrecy. The Committee after the end of the procedure submits to the State its observations, comments and recommendations. In six months the State submits its own observations. The Committee with the consent of the State decides to include a summary of the results of the proceedings in its annual report according to article 15 of the Protocol.

 

Conclusion

 

Since the adoption of the Covenant many changes have been made on international level with regard to the protection of human rights. Many of the rights guaranteed by the Covenant are protected more broadly by other international human rights acts, as it has been analysed above when examining each individual right, and for this reason they should “be examined in correlation with these rights”[127].

Especially the ILO has to offer wider protection and assistance towards workers, UNESCO in the education sector, WHO in the field of health and so on. Therefore there is interaction and overlap between these rights which are guaranteed by the Covenant and the other international treaties. It remains at the states’ discretion to implement these rights as long as they have ratified the international treaties and are bound by them.

It is also accepted that human rights are universal, interrelated, indivisible and interdependent and that the “international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis”[128]. In the light of this interpretation special attention should be paid to the implementation, promotion and protection of all rights regardless of whether they are civil, political, economic, social or cultural. State Parties must interpret the provisions bona fide and fulfil their obligations arising from the international acts regardless of their economic, political or other standing. For the civil and political rights it was accepted from the very beginning that they are justiciable in case they are violated. That has not been the case for the economic, social and cultural rights.

One of the arguments which supported this understanding was the fact that these rights require the undertaking of a number of positive measures on behalf of the governments and the planning for their realisation that cannot be done through judicial or other similar procedures.

Also, the wording of the rights is vague making it difficult for certain legal systems to implement them as well as the fact that certain rights require special funding which is not available in all member states (e.g. the right to health).

To the above arguments the Committee of the Covenant reply through General Comment 9[129] whereby it clarified that certain provisions are of direct application and gave the examples of articles 3 (equality between men and women),7§ (a right to enjoy a fair wages and equal remuneration for work of equal value),8 (right to form and join trade unions), 10 § 3 (special measures of protection and assistance for children and young persons), 13 § 2 a (obligatory and free primary education for all), 13 § 3 (liberty if parents to choose their children schools), 13 §4 (liberty of establishing educational institutions), 15 § 3 (freedom for scientific research and creative activity). It underlined that the principle of non-discrimination is of direct application, as a general clause that covers civil and political, economic, social and cultural rights.[130] The same applies for the right to form and join unions (article 8) and the right of parents to choose their children school (article 13 §3), because these rights fall within the category of civil as well as social rights[131]. Thus, the Committee considered that each provision of the Covenant has the elements that can characterise it as “of having a justiciable dimension in its content”[132].

It clarified further, that there should be a distinction between the (legally justiciable pursuable) rights, i.e. in the cases where the violation of a right is solved by courts and the provisions which can be applied by courts. During the travaux preparatoires of the Covenant the representatives of states tried to include a provision with a content stating clearly that its provisions are not of direct application. This suggestion was rejected.

So, it is up to the courts of each state to rule if the provisions are directly applicable, something that is believed to play an important role in the application of social rights. The courts should receive information with regard to the nature and the specificities of the provisions of the Covenant. For example, when the government is involved in litigation it should invoke the national laws which implement the obligations arising from the Covenant or else will be found inconsistent with the obligations it has undertaken. The issue is, of course, simple. It is noteworthy though that the international acts as well as national courts take a positive stand towards the issue which gradually leads to the development of the theory that all human rights are justiciable[133].

Apart form the above the Covenant shows a number of positive and negative elements. Among the positive, we underline the work of the Committee through the examination of the reports and the General Comments it has adopted.

It has achieved to interpret many provisions of the Covenant thus providing individuals and lawyers with the possibility of claiming their rights before national courts or other authorities, and further providing courts and public authorities with the possibility of implementing more effectively the Covenant.

Among the negative ones, we notice the non-ratification of the Covenant by 37 member states of the U.N.; the difficulty that many states of the developing world face in the fulfilment of the obligations they have undertaken, due to financial difficulties; and the need for more people to be involved in this effort along NGO’s, unions and the academic community[134]. Also the co-operation with Specialised Agencies is characterised as sporadic.

Finally, Member states must embrace the adoption of the Optional Protocol[135] which recognises the possibility of the individual communication; thus a large part of the world’s population to enjoy these fundamental rights. Prima facie this quasi-judicial means looks “painless” and with no possibilities of substantial effect in reality. Such a concept would address it as a stagnating situation without taking into account the dynamic that exists within these mechanisms. The same “pessimistic” concept has been articulated by some also for the procedure of collective complaints of the European Social Charter and its ten-year application has shown that it can evolve -and is already evolving- into a strong tool of effectiveness of social rights.

[1] The Covenant was adopted by the General Assembly of the United Nations, Res 2200/A (XXI), on the 16 December 1966 and entered into force on the 3^r January 1976. Until today it has been ratified by 160 States. See B.G. RAMCHARAN “Implementation of the International Covenant on Economic, Social and Cultural Rights”, NILR, XXIII 1976/1 page 151 seq.

[2] The ICCPR was adopted on the same date, on 16 December 1966 and entered into force on 23 March 1976 and has been ratified by 165 States. It is complemented by two Additional Protocols, the first which entered into force on 23 March 1976 and recognizes the right to an individual communication and the second related to the abolition of the death penalty which was enforced on 11 July 1991.

[3] The UDHR was adopted by the General Assembly on 10 December 1948.

[4] Regarding the separation of the two Covenants see J.DONELLY, International Human Rights, Westview 2^nd ed.Oxford,1998, page 7; M.BOSSUYT, Guide to the travaux preparatoires of the International Covenant on Economic Social and Cultural Rights, M.Nijhoff, Dordrecht, 1987; C.S COTT” The interdependence and permeability of human rights norms: towards a partial fusion of the International Covenant on Human Rights”, OHLJ,27, Ottawa, Canada, 1998, page 791.

[5] P.ALSTON, The interplay between rights: denial and neglect, Human rights: the new consensus, Regency Press, 1994, page 113.

[6] ICCPR, articles 28 and following.

[7] Optional Protocol articles 1 and 2.

[8] With the adoption of the Optional Protocol by the General Assembly A/Res/63 on 10 December 2008.

[9] A.EIDE, “Economic and Social Rights”, Symonides (J.), Human Rights: Concepts and Standards, 2000, page 119.

[10] TH.BUERGEUTHAL, D.SHELTON, D.STEWART, “International Human Rights, West Group, 2002, page 65.

[11] Adopted in Torino, on 18 October 1961 including nineteen economic and social rights, A.H.ROBERTSON, “Human rights in Europe”, Manchester, 1963, chapter 3, under 41 and “Human rights in the world”, Manchester, 1972, pages 28 and following.

[12] Article 1 is similar to article 1 of the ICCPR and is also provided in article 1 of the U.N. Charter. For the right to self-determination see, among others, J.KLABBERS. ”The right to be taken seriously: Self-determination in International law”, HRQ 28,1, 2006, page 186 seq.

[13] Article 1§2 of the Covenant.

[14] E.M. VIERDAG, “The legal nature of the rights granted by the International Covenant on Economic, Social and Cultural Rights”, NYIL, IX 1978, page 69; M. BOSSUYT, “La distinction entre les droits civils et politiques et les droits economiques, sociaux et culturels”, RDH, 8 No 4, 1975, page 783.

[15] General Comment 3, The nature of States Parties obligations (art 2,1), Fifth session, 1990, E/1991/23, 14 December 1990.

[16] General Comment 10, The role of national human rights institutions relating to the protection of economic, social and cultural rights, E/C. 12/1998/25, 14 December 1998, see also C.R. KUMAR, “National Human Rights Institution and Economic, Social and Cultural Rights. Towards the Institutionalization and Developmentalization of Human Rights”, H.R.Q. 28, 3, 2006, page 755.

[17] Among others see articles 1§3, 13§1b, 55§ c and 76 of the U.N. Charter, the CCPR, the Convention for Elimination of all forms of Discrimination Against Women, UDHR, etc.

[18] Draft International Covenant on Human Rights Report, 3^rd Committee A/53/65 (17 December 1962) § 85 and General Comment No 16, The equal right of men and women to the enjoyment of economic, social and cultural rights (art. 3), E/C.12/2005/4, 11 August 2005.

[19] General Comments No 4, No 12, No 11, No 14 and No 15.

[20] M.BOSSUYT, The Concept and practice of affirmative action, Preliminary report, Special rapport in accordance with Sub-Commission resolution, 1998/5.E/CN/4?Sub.2/2000/1.

[21] According to General Comment No 16 and decision of the Committee over the Guatemala Report regarding the treatment of natives, E/1997/22, §140.

[22] General Comment No16 and article 4 of the Convention for the Elimination of all forms of Discrimination Against Women as well as the relative General Comment No 25 of the Covenant which interprets article 4.

[23] General Comment 5, People with disabilities, Eleventh Session 1994, E/1995/22, 9 December 1994.

[24] General Comment 6, Economic, social and cultural rights of older persons Thirteenth Session 1995, E/1996/22, 8 December 1995.

[25] See among others equivalent articles of ICCPR and European Convention on Human Rights, articles 1, 4, 8, 9, 10, 11.

[26] Indicatively article 4 of ICCPR, as well as article 15 ECHR, 27 of the American Convention on Human Rights.

[27] For the issue of derogating in international acts of human rights protection see D. PREMONT, O.L. STENERSEN, I. OSEREDCZUD (eds), Non-derogable rights and states of emergency, Association of International Consultants of Human Rights, Brussels 1996, page 421 and P. NASKOU-PERRAKI, Article 15 of the ECHR. Theoretical and jurisprudential approach. With a comparative study of articles 4 of the CCPR and 27 ACHR, Athens-Komotini, Ant.N.Sakoulas,1987, pages 57 (in greek).

[28] General Comment 18, The right to work, Thirty fifth Session, E/C. 12/G.C/18, 6 Febuary 2006.

[29] For people with disabilities, General Comment 5, which refers especially to those in relation to work and the obligations of States towards then, General Comment 5, Persons with disabilities, 11^th session 1994, UN DOC E/1995/22, UN DOC HR/GEN/1/Rev.6 at 24 (2003).

[30] ILO Convention No 105 abolition of forced labour 1957, ILO Convention No 52 holidays with pay 1936, ILO Convention No 95 protection of wages 1949, ILO Convention No 106 weekly rest (commerce and offices) 1957 etc.

[31] As in Recommendation No 67 security of wages, Recommendation No 69 medical care, Convention No 102 social security (minimum standards) 1952, Convention No 103 maternity protection 1952, Convention No 121 employment injury benefits 1964, Convention No 128 Invalidity, old-age and survivors’ benefits 1967, Convention No 130 Medical Care and Sickness Benefits 1969.

[32] General Comment 5, People with disabilities, op. cit.

[33] The obligation is based on the Recommendations 25 and 29 of the Vienna International Plan of Action on Ageing, see Report of the World Assembly on Ageing, Vienna, 26 July- 6 August 1982, UN Publication Sales No E.82.1.16.

[34] Article 25§2 UDHR as well as article 16 the right to marry.

[35] U.N. Convention of 1962 Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages which deals with this issue in detail.

[36] Convention No 103 on maternity protection as reviewed in 1952, Convention No 138 minimum age for admission to employment as adopted in 1973, Convention 90 night work for young persons in industry 1948,  No 19, 1946 and Convention for the Elimination of all forms of Discrimination Against Women 1979, UN DOC. A/RES/34/180 in 18/10/1979 and entered in force in 1981.

[37] For the protection of children see the articles of the U.N. Convention on the Rights of the Child, which was adopted in 1989 and entered in force in 1992. UN Doc. A/RES/44/25 (20/11/1989).

[38] This right is guaranteed by article 32 on the U.N. Convention on the Rights of the Child.

[39] Recommendations 19 to 24 of the Vienna International Plan of Action.

[40] In more detail S. NARULA, “The right to Food: Holding global Actors Accountable under International Law”, CJTL, 44,3, 2003, PAGE 2003.

[41] According to §2 of article 11.

[42] International Year of Shelter for the Homeless (1987) and The Global Strategy for Shelter to the Year 2000 when it was adopted by the General Assembly with the Res 42/191 of the 11^th December 1987.

[43] The United Nations registered more than 100 million homeless peoples and a billion with no adequate roof.

[44] General Comment 4, The right to adequate housing (art. 11§1): Sixth Session, 1991, E/1992/23, 13 December 1991.

[45] General Comment 7, The right to adequate housing (art 11§1): forced evictions, Sixteenth Session, 1997, E/1998/22, 20 May 1997.

[46] Report of Habitat: United Nations Conference on Human Settlements, Vancouver, 31 May-11 June 1976 (A/CONF: 70/15), chap. II, Recommendation B. 8, para. C (ii). Report of the Commission on Human Settlements on the work of its Eleventh session, Addendum (A/43/8/Add. 1), para. 13. Report of the United Nations Conference on Environment and Development, Rio de Janeiro, 3-14 June 1992, Vol I (A/CONF.151/26/Rev.1 (vol I), annex II, Agenda 21, chap. 7.9 (b). Report of the United Nations Conference on Settlements (Habitat II) (A/CONF. 165/14), annex II, The Habitat Agenda, para. 40 (n). Commission on Human Rights Resolution 1993/77, para. 1.

[47] General Comment 12, The right to sufficient food (art. 11), Twentieth Session, 1999, E/C.12/1999/S, 12 May 1999.

[48] General Comment 15, The right to water (arts 11 and 12), Twenty-ninth Session, E/C.12/2002/11, 2002, 20 January 2003.

[49]  WHO Statute of 1946, preamble §3.

[50] General Comment 14 , The right to the highest attainable standard of health (art. 12), Twenty second Session, E/C. 12/2004, 25 April- 12 May 2000.

[51] Article 13,1 of the Covenant. Article 29 of the Convention on the Rights of the Child, also characterises it as fundamental with compulsory education for all children to the age of 15.

[52] General Comment 11, Plans of action for primary education, (art. 14), Twentieth Session, E/C. 12/1994/4, 26 April – 14 May 19999, § 2.

[53] Ibid, § 2.

[54] According to §2 of article 13 of the Covenant.

[55] § 3 article 13, Ibid.

[56] General Comment 13, The right to education (art. 13), Twenty first Session 1999, E/C. 12/1999/10, 15 November- 3 December 1999, and General Comment 11.

[57] See the Convention of UNESCO for Technical and Vocational Education 1989 as well as the ILO Conventions No 142 of 1975 and No 117 of 1962.

[58] Convention of UNESCO against discrimination in education of 1960, which entered in force in 1962 and the Additional Protocol of 1962, the review establishment of the Organisation for technical and professional training, 1974 etc.

[59] In the context of the Council of Europe, article 2 of Protocol 1 of the Eur. Convention on Human Rights of 1950, which entered into force in 1953.

[60] Article 14 of the Covenant.

[61] General Comment 11, §11.

[62] General Comment 17, The right of everyone to benefit from the protection of the moral and natural interest in resulting from any scientific, literary or artistic production of which he or she is the author (art. 15, 1c), Thirty fifth Session, E/C.12/GC/17, 12 January  2006.

[63] See relevant provisions in ICCPR, the Convention on the Rights of the Child, Convention against Racial Discrimination, Convention for the Elimination of all forms of Discrimination Against Women, Convention Against Torture etc.

[64] According to article 16§2a of the Covenant.

[65] According to article 17 of the Covenant. ECOSOC Res. 1988/4 and rules article 58§2.

[66] Article 16§2 of the Covenant. For this procedure see P. ALSTON, “The United Nations Specialised Agencies and Implementation of the International Covenant on Economic, Social and Cultural Rights”, CJTL, 79, 1979, p. 18.

[67] Article 18 of the Covenant.

[68] This Committee was replaced by the Human Rights Council. See Res 60/251 of the General Assembly adopted on 15 March 2006.

[69] E. SCHWELB, “Some aspects of the measures of implementation of the Covenant of Economic, Social and Cultural Rights”, HRJ, 1 1968, pages 363.

[70] ECOSOC Res. 1978/10, 3 May 1978.

[71] ECOSOC Res. 1979/43, 11 May 1979 and Res. 1981/158, 8 May 1991 with which the ECOSOC set the first rules and working methods of  the group .

[72] P. ALSTON, B. SIMMA, “First Session of the UN Committee on Economic, Social and Cultural Rights”, AJIL, 80, 3, 1987, pages 747, of the same authors “Second Session of the UN Committee on Economic, Social and Cultural Rights”, AJIL 82,3, 1988 p. 603; P. ALSTON, “The Committee on Economic, Social and Cultural Rights”, in the UN and human rights, a critical appraisal, P. ALSTON (ed.), Oxford: Clarendon Press, 1992, p. 473.

[73] ECOSOC Res. 1982/83, 6 May 1982.

[74] ECOSOC Res. 1985/17, 28^th of May 1985.

[75] P. ALSTON, The Committee on Economic, Social and Cultural Rights”, P.Alston (ed.) The United Nations and Human Rights, 1992, page 473; M.C.-R. CRAVEN. The International Covenant on Economic, Social and Cultural Rights: a Perspective on its Development, 1995; A. CHAPMAN, “A new approach to Monitoring the International Covenant on Economic, Social and Cultural Rights” ICJR,1995, page 23.

[76]These conventions are: the CCPR, the International Convention Against Racial Discrimination, Convention Against Torture, Convention on the Elimination of all forms of Discrimination Against Women, Convention on the Rights of the Child, Convention on the Protection of Rights of Immigrants.

[77]Rules of Procedure of the Committee adopted at its Third Session (1989) E/C.12?1990?4Rev. 1, 1 September 1993.

[78] Rules of procedure, article 9, ECOSOC Res. 1985/17 § a and c.

[79]M. DOWELL-JONES, Contextualising the International Covenant on Economic, Social and Cultural Rights: Assessing the economic deficit, Leiden: M.Nijhoff, 2004, page 158.

[80] Rules of procedure, article 14.

[81]Ibid, article 15 and articles 16-19 which refer to the replacement of the President in case of inability to exercise his functions.

[82] P. ALSTON, B. SIMMA, “First Session of UN Committee on Economic, Social and Cultural Rights”, AJIL, 81, 1987, page 747.

[83] To begin with it caucused only once but this changed due to the amount of work. Also rule article 1.

[84]Rules of procedure, article 3.

[85] Ibid, article 2.

[86] Rules of procedure, article 4.

[87] Ibid, article 6.

[88] Ibid, article 69.

[89] Ibid, articles 66,67,68. The Specialised Agencies send representatives to the Sessions of the Committee.

[90] General Comment 1, Reporting by States parties, op. cit.

[91] Rules of procedure, article 58.

[92] Ibid, article 59.

[93] The working group is authorised by the ECOSOC, Res. 1988/4,24 May 1988.

[94] Rules of procedure, article 62.

[95] Ibid.

[96] Ibid, article 63.

[97] Ibid, article 62§3.

[98] Ibid, article 46. This article initially states the decision shall be made by majority of the members present. In case the votes are equally divided, the proposal shall be regarded as rejected, ibid, article 47.

[99] See Doc E/1993/22, 265.

[100] B. SIMMA, “The examination of State reports: ICESCR”, in Monitoring system of human rights treaty obligations, K. Eckart (ed.), Berlin, 1996, p. 38.

[101] P. ALSTON, G. QUINN, “The nature and scope of Sates Parties obligations under the International Covenant on Economic, Social and Cultural Rights”, HRQ, 9, 1987, p. 171.

[102] Rules of procedure, article 57.

[103] Ibid, article 64.

[104] The first General Comment was adopted during the third Session E/1989/22. (The expression “General Comment” is also assigned by other writers as “General Remarks”).

[105] Rules of procedure, article 65. This has been underlined a number of times by the members of the Committee. Also Summary Record of the 28^th meeting held on 15 November 1999, UN Doc E/C. 12/1999/SR. 28.

[106] As the CCPR, the Convention on the Rights of the Child etc.

[107] General Comment No 8, The relationship between economic sanctions and respect for economic, social and cultural rights, E/C. 12/1997/8, 12 December 1997.

[108] P. ALSTON, Establishing a right to petition under the Covenant on Economic, Social and Cultural Rights, Collected Courses of the Academy of European Law: The Protection of Human rights in Europe, Florence: European Univ. Institute, IV, 2, 1993 page 115; F. COOMANS, G.J.H. VAN HOOF (eds.), The right to complain about Economic, Social and Cultural Rights: Proceedings of the Expert Meeting on the Adoption an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, (Utrecht, 25-28 January 1995), Utrecht: Institute of Human Rights, 1995; M. CRAVEN, “Towards an unofficial petition procedure: A review of the role of the UN Committee on Economic, Social and Cultural”, in Social Rights as Human Rights: A European  Challenge. K. Drzewicki, C. Krause and A. Rosas (eds.), Abo/Turku (Finland): Abo Akademi University, Institute for Human Rights, 1994, p. 91.

[109] E/1992/23, paragraph 362. On the 23^rd of August 1996 with decision 1996/13 the Sub Commission on Human Rights requested the adoption of the Optional Protocol. This idea was based on §75 of the Declaration and Programme of Action, of the World Conference on Human Rights which took place in Vienna in 1993. Discussions followed between  states, governmental and non-governmental organisations over this issue (E/CN.4/1997/105),  recommendations and comments which are included in the report of the

[110] Res. 2001/30, Commission on Human Rights.

[111] On the 25^th  Session with decision 2001/6.

[112] Which was replaced by the Human Rights Council.

[113] This group is open to the handling of this issue as stated by its naming with the term: ”open-ended” which was adopted with Res.2000/9 of the 17^th of August  2000.

[114] Res. 2003/18, Commission on Human Rights.

[115] ECOSOC Res. 2002/254 on the 25^th  July 2002.

[116] E/CN.4/2004/44, 15 March 2004, Commission on Human Rights 60^th Session.

[117] Mrs. Catarina de Alburquerque of Portugal which was also the first President of the  working group.

[118] It is note worthy that the members of the group did not reach a consensus upon the date of the commencement of drafting an optional Protocol.

[119] In more detail the suggestions of the Rapporteur E/CN.4/1004/44 ECOSOC, Commission on Human Rights, 15 March 2004.

[120] Article 2 of the Optional Protocol.

[121] Article 5 ibid.

[122] Article 7 ibid.

[123] Article 8 ibid.

[124] Article 5 of the Protocol.

[125] Article 11 of the Protocol.

[126] Article 11§8, ibid.

[127] E.ROUKOUNAS,  International Protection of Human Rights, ESTIA, 1995, p.97. [in Greek]

[128] According to the Vienna Declaration and Programme of Action which was adopted during the World Conference on Human Rights( Part I §5), Vienna 25.6.1995 (A/CONF. 157/24, Part I, Chapter III).

[129] General Comment 9, The domestic application of the Covenant, E/C. 12/1998/24, 3 December 1998.

[130] Towards this direction is also the interpretation of article 26 of the CCPR by the Committee of the CCPR. See also M.SEPULVEDA, The nature and obligations under the International Covenant on Economic, Social and Cultural Rights, Antwerpen: Intersentia, 2003, p. 155.

[131] Article 11 of the ECHR, article 22 of the CCPR . Also article 2 of the 2^nd Protocol to the ECHR which has the same content with article 13,3 of the Covenant.

[132] Verbatim the Committee stressed that : “…. There is no Covenant rights which could not,…. be considered to posses at least some significant justifiable dimensions:, General Comment 9 op cit.

[133] S. LIEBENBERG, “The Protection of Economic and Social Rights in Domestic Legal Systems”, in Economic, Social and Cultural Rights: A Textbook, A. Eide et al. (ed.), M. Nijhoff, 2^nd edition, 2001, p. 55.

[134] See also M. DOWELL-KONES, Contextualising the International Covenant on Economic, Social and Cultural Rights: assessing the economic, op cit p. 169.

[135] K.ARAMBULL, Strengthening the supervision of the ICSECR. Theoretical and Procedural aspects, Intersentia, 1999; P.ALSTON,” Establishing a right to petition under the Covenant on Economic, Social and Cultural Rights”, in Collected courses of the Academy of European Law: The protection of human rights in Europe, Florence: European University Institute, Vol. IV, 2, 1993, p. 107.