On 4 and 7 May 2012, the government's performance in implementing the International Covenant on Economic, Social and Cultural Rights was assessed by the UN Committee on Economic, Social and Cultural Rights during its 48th session in Geneva (30 April to 18 May 2012). The Committee's Concluding Observations on New Zealand (E/C.12/NZL/CO/3) are available here, and an overview of the Concluding Observations is available here.
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The International Covenant on Economic, Social and Cultural Rights (ICESCR, the Covenant) was adopted and opened for signature, ratification and accession by the UN General Assembly on 16 December 1966, and entered into force on 3 January 1976. It is one of the two International Covenants arising from the Universal Declaration of Human Rights, the other being the International Covenant on Civil and Political Rights (ICCPR). There are currently 160 state parties to the ICESCR.
As its title indicates, the ICESCR elaborates economic, social and cultural rights, including: the right of self-determination (which is also Article 1 of the ICCPR); the equal right of men and women to the enjoyment of all economic, social and cultural rights; the right to work, including the right to just and favourable conditions of work, and the right to form and join trade unions; the right to social security; protection and assistance for the family, including special protection for mothers before and after childbirth, and special measures of protection and assistance for children and young persons; the right to an adequate standard of living; the right to the highest attainable standard of physical and mental health; the right to education; the right to take part in cultural life; protection of moral and material interests resulting from any scientific, literary or artistic production; and the right to benefit from scientific progress, including the right of everyone to seek and receive information about new scientific insights.
State parties to the ICESCR are required to fulfil their obligations with regard to Covenant rights without any form of discrimination.
At the time the two International Covenants were negotiated and adopted, some UN member states were less committed to a legally binding document specifying obligations with regard to economic, social and cultural rights than they were to obligations around civil and political rights, and this resulted in four major differences between the ICESCR and the ICCPR.
Firstly, state parties to the ICCPR are required to immediately respect and ensure the civil and political rights elaborated in it, whereas the economic, social and cultural rights elaborated in the ICESCR are to be 'progressively realised' as outlined in Article 2.1:
"Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."
'Progressive realisation' has been used as an excuse by some state parties to explain their failure to act on Covenant rights; however, Article 2 requires all state parties to immediately begin to take measures towards the full enjoyment by everyone of all the rights in the Covenant - and certainly state parties such as New Zealand have long since passed the point where economic, social and cultural rights should be fully realised.
As explained by the Committee on Economic, Social and Cultural Rights (CESCR, the Committee):
"The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the International Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content.
It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights.
On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'être, of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question. It thus imposes an obligation to move as expeditiously and effectively as possible towards that goal. Moreover, any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources."[1]
Secondly, the ICESCR has no specific provision outlining the requirement on state parties to provide an effective remedy for violations of Covenant rights as the ICCPR does at Article 2 - this is linked in part to the initial uncertainty about the nature of the obligations on state parties to the ICESCR (or, perhaps more accurately, to the reluctance of some states to accept their legal obligations with regard to economic, social and cultural rights).
In 1986, the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (the Limburg Principles) [2] were adopted to, among other things, outline the circumstances that amount to state party violations of Covenant rights. The Limburg Principles state: "A failure by a State party to comply with an obligation contained in the Covenant is, under international law, a violation of the Covenant." [3] A State party will be in violation of the Covenant, inter alia, if:
- it fails to take a step which it is required to take by the Covenant;
- it fails to remove promptly obstacles which it is under a duty to remove to permit the immediate fulfilment of a right;
- it fails to implement without delay a right which it is required by the Covenant to provide immediately;
- it wilfully fails to meet a generally accepted international minimum standard of achievement, which is within its powers to meet;
- it applies a limitation to a right recognized in the Covenant other than in accordance with the Covenant;
- it deliberately retards or halts the progressive realization of a right, unless it is acting within a limitation permitted by the Covenant or it does so due to a lack of available resources or force majeure; and
- it fails to submit reports as required under the Covenant." [4]
In 1997, the Limburg Principles were supplemented by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights. [5]
In addition, Covenant rights are elaborated in other legally binding human rights instruments that do require state parties to provide effective remedies for violations of economic, social and cultural rights - such as other core international human rights treaties that include economic, social and cultural rights with respect to their particular focus (for example, the Convention on the Elimination of All Forms of Discrimination against Women in relation to women's rights, the Convention on the Rights of the Child in relation to children's rights, and the Convention on the Rights of Persons with Disabilities in relation to persons with disabilities), and the International Labour Organisation (ILO) Conventions on a range of economic, social and cultural rights.
Legally binding regional human rights instruments also include economic, social and cultural rights, for example, the African Charter on Human and Peoples Rights (1981); the Additional Protocol in the Area of Economic, Social and Cultural Rights to the American Convention on Human Rights (Protocol of San Salvador) (1988); and the European Social Charter (revised 1996) and its Additional Protocol.
Furthermore, the CESCR has pointed out that the lack of a specific provision in the ICESCR outlining the requirement on state parties to provide an effective remedy for violations of Covenant rights does not remove the requirement for such remedies. The Committee has linked this to Article 8 of the Universal Declaration of Human Rights - "according to which "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him [sic] by the constitution or by law"" - and has stated:
"The central obligation in relation to the Covenant is for States parties to give effect to the rights recognized therein. By requiring Governments to do so "by all appropriate means", the Covenant adopts a broad and flexible approach which enables the particularities of the legal and administrative systems of each State, as well as other relevant considerations, to be taken into account. [6]
"But this flexibility coexists with the obligation upon each State party to use all the means at its disposal to give effect to the rights recognized in the Covenant. In this respect, the fundamental requirements of international human rights law must be borne in mind. Thus the Covenant norms must be recognized in appropriate ways within the domestic legal order, appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place." [7]
Thirdly, there is no specific complaints mechanism contained in the ICESCR as there is in the ICCPR (inter-state complaints) and its first Optional Protocol (complaints by individuals against state parties).
A mechanism for individuals to communicate violations of Covenant rights by state parties to the ICESCR, as well as an optional inter-state complaints procedure and an optional inquiry procedure, was agreed in 2008 - in the form of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights (the Optional Protocol).
The Optional Protocol was adopted by the UN General Assembly on 10 December 2008, and opened for signature on 24 September 2009. It will enter into force three months after it has been ratified (or acceded to) by ten states - currently there are eight state parties to it.
Fourthly, the Covenant did not establish a specific monitoring body or a regular reporting mechanism for state parties to report on their progress in implementing Covenant rights. Instead, ECOSOC was tasked with developing a mechanism for consideration of regular state party reports. After initial attempts to develop a specific body for this purpose were unsatisfactory, the CESCR was established in 1985.
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The Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights (CESCR, the Committee) is the body of independent human rights experts that monitors implementation of the ICESCR by the states that are party to it. The CESCR was established in 1985 by ECOSOC Resolution 1985/17, and it met for the first time in 1987.
The Committee comprises 18 independent experts who serve in a personal capacity, not as government representatives, and who are each elected for a term of four years by a secret ballot of all state parties to the ICESCR. Details of the current CESCR members are available here.
The Committee meets in Geneva and usually holds two sessions per year - a three week plenary session, generally in May and November / December, and a one week Pre-Sessional Working Group before each plenary session. The CESCR submits an Annual Report on its activities to ECOSOC.
Every state party to the ICESCR is required to submit regular reports to the Committee on how they are implementing Covenant rights. States must submit an initial report within two years of ratifying or acceding to the ICESCR, and a Periodic Report every five years thereafter.
The Committee examines each state party report in conjunction with information provided in parallel reports from NGOs, reports from National Human Rights Institutions (for example, national Human Rights Commissions), and information from UN specialized agencies (such as the ILO, the World Health Organization, and others).
As well as the provisions of the ICESCR, the Committee takes into account General Comments, which it has developed through time to provide more detailed information on specific topics and state party obligations, to assess whether or not a state party is complying with the Covenant - the CESCR's General Comments are available here.
Each report from a state party (whether initial or a Periodic Report) is initially reviewed by a Pre-Sessional Working Group, comprising five CESCR members, which meets six months prior to a report being considered by the full Committee. The Pre-Sessional Working Group develops a List of Issues (questions on areas for which more the Committee requires more information) which is sent to the state party. The state party is required to reply in writing to the List of Issues prior to their appearance before the Committee.
The full examination of each state party report consists of a dialogue between a delegation of representatives of the state being considered, and the CESCR. It begins with the delegation first providing introductory comments and responses to the List of Issues. This is followed by the provision of information by UN specialised agencies relevant to the report under consideration.
Committee members then put questions and observations to the delegation, the state party representatives respond, and the process is repeated until the interactive dialogue concludes. The consideration of a state party report generally takes place in three three-hour sessions over two days. If the delegation is unable to answer all of the questions, the Committee often requests the state party to provide it with additional information for consideration at subsequent sessions.
The final phase of examination of a state party report is the drafting and adopting of Concluding Observations by the Committee. These generally include an introductory section, a section outlining positive aspects, and a section on principal subjects of concern which includes suggestions and recommendations. Concluding Observations may also include a request for additional information on specific points to be provided to the Committee within a specified time period.
Concluding Observations are generally made public the week after the conclusion of the session in which a state party's report has been considered. While the Committee's suggestions and recommendations may not carry legally binding status, state parties that ignore or choose not to act on them are considered to be showing bad faith towards the implementation of their Covenant-based obligations.
The CESCR is holding its forty-eighth session in Geneva from 30 April to 18 May 2012. In addition to New Zealand, the Committee will consider reports from Ethiopia, Peru, Slovakia and Spain.
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The New Zealand government and the ICESCR
New Zealand signed the ICESCR on 12 November 1968 and ratified it on 28 December 1978, with two reservations, one remains in place and the other was subsequently withdrawn.
The reservation that remains in place is:
"The Government of New Zealand reserves the right not [to] apply Article 8 to the extent that existing legislative measures, enacted to ensure effective trade union representation and encourage orderly industrial relations, may not be fully compatible with that article."
The reservation that was withdrawn, on 5 September 2003, was:
"The Government of New Zealand reserves the right to postpone, in the economic circumstances foreseeable at the present time, the implementation of article 10 (2) as it relates to paid maternity leave or leave with adequate social security benefits."
While the New Zealand government of the day demonstrated a strong commitment to economic, social and cultural rights during the drafting of the Universal Declaration of Human Rights - the precursor to both International Covenants - emphasising the need to give equal importance to those rights as to civil and political rights, subsequent governments have not in practice provided the same level of legal protection for economic, social and cultural rights.
Although the ICCPR was partially incorporated into domestic legislation by the New Zealand Bill of Rights Act 1990, the ICESCR, with the exception of the prohibition on discrimination, was not. The Bill of Rights Act begins with the statement that it is "An Act (a) to affirm, protect, and promote human rights and fundamental freedoms in New Zealand", but it does not specifically include economic, social and cultural rights (except for the right of minorities to enjoy their own culture, from Article 27 of the ICCPR).
Protection for economic, social and cultural rights is scattered across various pieces of legislation, regulations and government policy. So, for example, elements of the right to work are contained in (for example) the Equal Pay Act 1972, Parental Leave and Employment Protection Act 1987, Employment Relations Act 2000, Holidays Act 2003, and health and safety legislation, regulations and policy.
It should be noted, however, that the Covenant is not able to be fully implemented here because the constitutional arrangements arising from the notion of parliamentary supremacy mean that there is no way to prevent parliament from passing legislation that is discriminatory, or that breaches Covenant rights, nor to overturn such legislation when it is enacted.
New Zealand has submitted three reports under the ICESCR - the initial report in 1990 [8], the second in 2001 [9] and the third in 2009 [10] (see the section below for more information about this report).
The Committee considered the initial report in November 1993 and adopted the Concluding Observations [11] in December 1993. Among other things, the Committee noted with regret:
"that the balance of payments situation and budgetary constrains have led the New Zealand Government to adopt restrictive economic and social policies, thereby affecting the realization of economic, social and cultural rights, particularly of the most vulnerable groups of society."
[12]
The first of the 'Principal subjects of concern' was:
"The Committee, while considering the adoption of a Bill of Rights as a positive development, expresses its concern that no reference is made to economic, social and cultural rights in the text of the Bill. The Committee notes that the Bill of Rights is in the form of an ordinary statute, and is therefore able to be overridden by other legislation at any time." [13]
The CESCR considered the Second Periodic Report, and adopted the Concluding Observations, in May 2003. [14]
The first of the 'Principal subjects of concern' in 2003 was: "The Committee notes with regret the view expressed by the State party's delegation that economic, social and cultural rights are not necessarily justiciable." [15]
Other areas of concern included: the high level of unemployment among young people; the failure to ratify ILO Convention 87 concerning freedom of association and protection of the right to organize, ILO 117 concerning social policy, and ILO 118 concerning equality of treatment; the persistence of a gap between the wages of women and men; the level of domestic violence; the relatively high suicide rate, especially among young people; that nearly one in four persons lives in poverty according to the measurement commonly used in the state party and that clear indicators are lacking to assess the effectiveness of measures to combat poverty; that the general health situation of Maori continues to be worse than that of other segments of the population in the State party, and that the life expectancy of Maori is significantly lower than the national average; that the provision of secondary and tertiary health care services in rural and remote areas is inferior to that in urban areas; and persistent inequalities between Maori and non-Maori in access to education as well as high drop-out rates, especially among Maori children and young people, and disadvantaged and marginalized groups.
Among other things, the CESCR reminded the government that it:
"remains under an obligation to give full effect to the Covenant in its domestic legal order, providing for judicial and other remedies for violations of economic, social and cultural rights."
New Zealand has not signed the Optional Protocol.
During New Zealand's Universal Periodic Review in 2009, the government rejected the recommendation that it ratify the Optional Protocol [16], and according to its mid-term progress review published in July 2011: "While New Zealand is not considering ratification at this stage, this treaty may be reviewed later." [17]
Economic, Social and Cultural Rights Handbook for National Human Rights Institutions, Office of the United Nations High Commissioner for Human Rights, 2005
Information and updates on the 48th session are available here.
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References
[1] General Comment 3: The nature of States parties obligations (Art. 2, para. 1 of the Covenant), Committee on Economic, Social and Cultural Rights, 14 December 1990
[2] Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986 - the text is available in Economic, Social and Cultural Rights Handbook for National Human Rights Institutions, Office of the United Nations High Commissioner for Human Rights, 2005, Annex 6
[3] Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986, para 70
[4] Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights, 1986, para 72
[5] The Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, 1997 - the text is available in Economic, Social and Cultural Rights Handbook for National Human Rights Institutions, as at note 2 above, Annex 5
[6] General comment No. 9: The domestic application of the Covenant, Committee on Economic, Social and Cultural Rights, 3 December 1998, E/C.12/1998/24, para 1
[7] General comment No. 9: The domestic application of the Covenant, Committee on Economic, Social and Cultural Rights, as above, para 2
[8] Implementation of the International Covenant on Economic, Social and Cultural Rights: Initial Reports submitted by States Parties under articles 16 and 17 of the Covenant: New Zealand, 1 February 1991, E/1990/5/Add.5 [9 October 1990] - available in three sections: cover page to page 54, pages 55 to 111, and pages 112 to 170
[9] Second Periodic Report submitted by States Parties under articles 16 and 17 of the Covenant: New Zealand, 16 October 2001, E/1990/6/Add.33 [30 September 2001]
[10] Implementation of the International Covenant on Economic, Social and Cultural Rights: Third periodic reports submitted by States parties under articles 16 and 17 of the Covenant: New Zealand, 17 January 2011, E/C.12/NZL/3 [2009]
[11] Concluding Observations of the Committee on Economic, Social and Cultural Rights: New Zealand, 4 January 1994, E/C.12/1993/13
[12] Concluding Observations of the Committee on Economic, Social and Cultural Rights: New Zealand, as above, para 11
[13] Concluding Observations of the Committee on Economic, Social and Cultural Rights: New Zealand, as above, para 12
[14] Concluding Observations of the Committee on Economic, Social and Cultural Rights: New Zealand, 26 June 2003, E/C.12/1/Add.88
[15] Concluding Observations of the Committee on Economic, Social and Cultural Rights: New Zealand, as above, para 11
[16] Report of the Working Group on the Universal Periodic: New Zeala nd, Human Rights Council, 4 June 2009, A/HRC/12/8, p 16
[17] Universal Periodic Review Mid-Term Progress Chart, Ministry of Justice, July 2011
[18] Implementation of the International Covenant on Economic, Social and Cultural Rights: Third periodic reports submitted by States parties under articles 16 and 17 of the Covenant: New Zealand, 17 January 2011, E/C.12/NZL/3 [2009]
[19] List of Issues to be taken up in connection with the consideration of the third Periodic Report of New Zealand concerning articles 1 to 15 of the International Covenant on Economic, Social and Cultural Rights (E/C.12/NZL/3), 14 June 2011, E/C.12/NZL/Q/3
[20] Replies by the Government of New Zealand to the list of issues (E/C.12/NZL/Q/3) to be taken up in connection with the consideration of the third periodic report of New Zealand (E/C.12/NZL/3), 26 January 2012, E/C.12/NZL/Q/3/Add.1 [11 November 2011]
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