By Maria Virginia Brás Gomes, Member of the UN Committee on Economic, Social and Cultural Rights
Another session of the UN Committee on Economic, Social and Cultural Rights has just ended. It was the 55th session and had its usual mix of consideration of States parties reports, briefings with NGO’s and UN Specialised Agencies, progress in the interpretation of the rights enshrined in the Covenant (this time by way of the two General Comments currently in the drafting stage), and discussion of working methods and harmonisation procedures with a view to strengthening the treaty body system.
It might sound like a repetitive exercise and a boring set of procedures. But it is not so, because States parties to the Covenant are at different stages of economic and social development; cultural contexts are diverse; each national delegation has its own way of relating to the Committee; and the only thing that is consistent about the lively lunch briefings with diverse NGO’s are the sandwiches supplied by the Palais Wilson Cafeteria.
During this last session, the Committee considered the reports of Kyrgyzstan, Venezuela, Mongolia, Thailand, Ireland, Chile and Uganda. Uganda was presenting its first report, with a delegation of only one representative from the capital – as the others did not get a visa on time, plus two delegates from its Permanent Mission in Geneva. Thailand was also presenting its first report to the Committee, but its delegation comprised members from all the line Ministries responsible for policies to protect economic, social and cultural rights. All the other Sates parties at this session were at the stage of providing periodic reports.
Some trends in the implementation or – to be more exact – failure to implement economic, social and cultural rights, signal the weakening (whether voluntary or involuntary) of the role of the State. The first is the impact of austerity measures that have led to a significant roll-back in expenditure in healthcare, education, social security, and housing.
In the Committee’s dialogue with Ireland, this was a matter of some dispute. The State party claims that a range of measures was taken to cushion rights holders from the effects of the financial crisis, and that most of the progress made in improving rights realisation during the boom years had been maintained.
The Irish National Human Rights Commission and NGO’s from different sectors did not share this positive evaluation. They pointed out a number of failures, including the fact that austerity measures, which continue to be applied, have had a significant adverse impact on the entire population, and particularly on disadvantaged and marginalized individuals and groups. They noted that no review has been carried out of these measures since Ireland’s exit from the EU bailout programme. To the Committee it remains unclear whether the Irish government is making targeted efforts to ensure that the effective protection of rights under the Covenant is enhanced in line with the progress achieved in its post-crisis economic recovery.
Interestingly enough, during my recent visit to the Centre for International Governance and Justice at ANU, I met with a young student whose paper for his Honours Thesis in the College of Law dealt with policy making obligations under the Covenant in the context of austerity measures in Greece. It only shows how globalised the topic of austerity and fiscal adjustment in the Southern European countries is!
The case of Chile represents another instance of the State shifting its responsibilities to the private sector, creating what one could call a two-tier system in the fields of health, social protection, and in particular, education. Here, the low quality of the public system and the failure to implement the State’s Inclusion Law, that is designed to ensure access to education for all children, has led to segregation and discrimination based on the socio-economic status of families, thereby limiting social mobility of children from poor neighbourhoods.
The situation of refugees, asylum-seekers, and migrants was also very much a part of the conversation. In the case of Thailand, one cannot ignore the fact that this developing country hosts around 200,000 refugees and migrants, while the European Union is presently discussing an agreement among its 28 Member States to redistribute 40,000 migrants (26,000 from Italy and 14,000 from Greece), based on criteria such as GNI, unemployment rate, and the number of registered asylum applications. The proposal is being met with considerable resistance from Spain and some of the Eastern European Countries, in particular Hungary. Hungary is the EU Member State experiencing the highest recent increase in the entry of immigrants – more than 50,000 to May this year. As things now stand, and pending a final decision by the European Summit, the plan – which was originally intended to be mandatory – will be voluntary.
In its Concluding Observations to Thailand, the Committee, while expressing appreciation of the State party’s continued commitment to hosting a large number of refugees and migrants from neighbouring countries, expressed its concern at the absence of an overall legal framework protecting the rights of asylum-seekers and refugees, and lack of a formal national refugee status determination procedure, which hinders the full enjoyment of their economic, social and cultural rights.
There is need for Thailand (and many other State parties to the Covenant) to re-examine their position with regard to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto. Reports that migrants and refugees, in particular Rohingyas, were left stranded at sea without access to emergency assistance after being denied the opportunity to disembark from their vessels, led the Committee to call on the State party to redouble its efforts, including through strengthened international and regional cooperation, to ensure that the economic, social and cultural rights of all migrants and refugees are protected. This requires providing access to water, food, and medical assistance, and an end to boat ‘push-backs’.
The living conditions of refugees and asylum seekers in EU Member States are far from satisfactory. Ireland, for example, was encouraged by the Committee to expedite the adoption of its International Protection Bill that will introduce a single procedure to assess and determine without undue delay all forms of protection status for asylum-seekers; as well as to strengthen the protection and promotion of their economic, social and cultural rights.
On a different note, how do States parties interpret and fulfil their obligation to protect individuals, families, and groups against violations by non-State actors? How do they address the far reaching impacts of activities of corporate enterprises on the enjoyment of economic, social and cultural rights at home and abroad?
In Mongolia, the legal framework governing mining as well as the implementation of related laws do not adequately protect herders’ rights to pasture, hay land and water resources. There is no meaningful consultation carried out with herders prior to granting mining licenses that affect their rights, nor effective grievance mechanisms that are accessible and affordable.
In Uganda, there have been increasing incidents of land grabbing due to extraction activities with a disproportionate effect on women and customary land owners; oil and gas extraction as well as mining activities are carried out without prior and meaningful consultation with communities whose lands lie beneath these projects.
A similar problem arises in Chile, but in this case, it is the indigenous peoples who are not consulted before the concession of mining licenses, nor adequately compensated in case of dispossession of lands and natural resources and loss of livelihoods due to corporate activities.
There remains no doubt that given the advancement of economic globalisation, the human rights of individuals, groups and peoples are increasingly affected by the extraterritorial acts and omissions of States. The decision-making power of nation states is being undermined by a range of factors, including the failure of governments, an unfavorable economic and development environment, and the myriad options available to transnational corporations to carry out their activities and to settle disputes at extra-territorial levels, with the result that these corporations exercise disproportionate power. However, as various national and international contributions to the debate on the obligation to protect have clarified, States are required to set the enabling normative framework and to regulate the activities of corporations, bearing in mind their obligation to guarantee fulfillment of economic, social and cultural rights without discrimination. In other words, laws, policies and regulations must ensure that non-Government actors, whether State-owned or private companies, act in conformity with human rights.
Within the ASEAN region, development has come with notable changes, including the construction of large infrastructure projects, such as hydropower dams, highways, and fossil fuel-fired power stations, the expansion of the mining industry, the creation of special economic and polluting industry zones, and the expansion of agribusiness. While this development has brought rising GDPs across the region, so, too, has inequality increased.
This is an important reason for Thailand to establish a clear regulatory framework with a view to ensuring that companies incorporated or with their main offices under the Thai jurisdiction are legally accountable for violations of economic, social and cultural rights in their projects abroad, in particular cross-border development projects.
At the conclusion of this session, it is probably unfair to say that little has changed, especially in the case of States that have not reported before. The Covenant is not being implemented in an ideal world, but rather in a fast changing world with many persistent challenges, as well as new ones that require renewed efforts by States to fulfill their role of guaranteeing all human rights to all.
What is rather worrisome is the shrinking space for civil society organisations and human rights defenders to exercise their rights and to live by their commitments. Stringent regulations for registration and funding; excessive monitoring of their activities without reason; accusations of advocacy NGO’s acting as “foreign agents”; lack of protection for human rights defenders – in particular those working on the rights to land and natural resources, are symptoms of a deeper misconception by the State of what governance, accountability, and transparency mean. And that is not a good omen!
 CESCR Concluding Observations – Chile (E/C.12/CHL/CO/4); Ireland (E.C.12/IRL/CO/3); Kyrgyzstan (E.C/KGZ/CO/2-3); Mongolia (E/C.12/MNG/CO/4); Thailand (E/C.12/THA/CO/1-2); Uganda (E/C.12/UGA/CO/1); Venezuela (E/C.12/VEN/CO/3)
 Among other documents, Statement of the Committee on the obligations of States parties regarding the corporate sector and economic, social and cultural rights (2011); UN Guiding Principles on Business and Human Rights and the Protect, Respect and Remedy’ Framework (2011); Maastricht Principles on Extraterritorial Obligations of States in the area of Economic, Social and Cultural Rights, adopted by a group of experts (2011).
 Assessment of the National Human Rights Commission of Thailand focusing on business and human rights and cases of cross-border human rights infringements, with specific references to the Dawei Development Project, in Myanmar; the Xayaburi Dam, in Laos (Lower Mekong River) and the Koh Kong and Oddar Meanchey, in Cambodia