ICESCR

Beijing Platform for Action Optional Protocol to ICESCR

ICESCR

The Covenant on Civil and Political Rights (ICCPR) and the Covenant on Economic, Social and Cultural Rights (ICESCR) are called the twin covenants. They make up the foundation of international human rights law by complementing the Universal Declaration of Human Rights.

ICESCR sets out basic economic, social, and cultural rights (such as health, housing, education, and employment) that everyone is entitled to enjoy and exercise without discrimination. Furthermore, States are under the obligation to take appropriate measures towards the full realisation of economic, social, and cultural rights to the maximum of their available resources under the Convention.¹

In 1985, the Committee on Economic, Social and Cultural Rights (CESCR) was established. Similar to the CEDAW Committee, CESCR monitors the state compliance with the convention and prepares general comments (similar to general recommendations of CEDAW) to interpret and/or provide guidance around particular rights or concepts within the Convention. CESCR also considers individual complaints through its own communications mechanism established by the Optional Protocol to ICESCR (which came into force in 2013).

‘The most important statement from the Committee to date on substantive equality between women and men is its General Comment No. 16 (2005) on the equal right of men and women to the enjoyment of all ESC rights. In it, CESCR highlights that “[t]he equal right of men and women to the enjoyment of all human rights is one of the fundamental principles recognized under international law and enshrined in the main international human rights instruments”, and that “failure to ensure formal and substantive equality in the enjoyment of [the specific rights enumerated in the Covenant] constitutes a violation of that right.”’

– The Global Initiative for Economic, Social and Cultural Rights (GI-ESCR) and the International Network for Economic, Social and Cultural Rights (ESCR-Net) (2016) The International Covenant on Economic, Social & Cultural Rights at 50: The Significance from a Women’s Rights Perspective

The review cycle of the CESCR is five years. The steps of the ICESCR review cycle are very similar to the CEDAW review cycle. Every five years, the State needs to send in reports on its work towards compliance with the covenant. The report is then examined by the CESCR, the State is presented with a list of questions on issues that were omitted and/or need more clarity (similar to CEDAW’s pre-session), and the State submits written responses. In the official session afterwards, the State makes a presentation and the CESCR asks questions. The State can then respond immediately or within 48 hours.

An example of the use of ICESCR on gender equality and macroeconomics

In 2018, the experts of the Committee on Economic, Social and Cultural Rights found Ecuador in violation of the articles of ICESCR. This was because Ecuador had refused to pay the pension of a woman who had to take a break in paying her monthly contributions for eight months, due to care work. Because of the reason behind her break, the Committee found that she also experienced “discriminatory treatment on the basis of her gender due to the conditions of her affiliation with the voluntary contribution pension system”.

The case was brought to the Committee, as the woman had exhausted all national remedy routes, and as Ecuador became party to the Optional Protocol of the ICESCR in 2010. The experts of the Committee found Ecuador in violation of Art. 9 of the Convention (right to social security, and reminded Ecuador that an effective remedy should be provided to the woman, “including by: (a) providing the author with the benefits to which she is entitled as part of her right to a pension, taking into account the contributions she made to the Ecuadorian Social Security Institute, or, alternatively, other equivalent social security benefits enabling her to have an adequate and dignified standard of living, bearing in mind the criteria established in the present views; (b) awarding the author adequate compensation for the violations suffered during the period in which she was denied her right to social security and for any other harm directly related to such violations; and (c) reimbursing the author for the legal costs reasonably incurred in the processing of this communication.”

The Committee also advised Ecuador to take the necessary measures within its social security system to ensure that such a violation does not happen again in the future.

For more on the Optional Protocol to ICESCR, see the next section.

Similar to the CEDAW process, civil society organisations can submit shadow reports and undertake advocacy efforts during the session to highlight the important realities related to the ICESCR in the state party under review.² After the official review session, the CESCR publishes its concluding observations commending states on their accomplishments towards compliance with the covenant, as well as the gaps in implementation, and suggestions for implementation until the next review cycle.

For more information on recent decisions, see GI-ESCR’s 2020 Yearbook on the Committee on Economic and Social Rights.

Beijing Platform for Action Optional Protocol to ICESCR

Footnotes

1
Office of the United Nations High Commissioner for Human Rights. (2008). Frequently Asked Questions on Economic, Social and Cultural Rights.
2
IWRAW Asia Pacific and ESCR-Net’s publication Participation in ICESCR and CEDAW Reporting Processes: Guidelines for Writing on Women’s Economic, Social and Cultural Rights in Shadow/Alternative Reports provides valuable insights for further details on the review cycle of CEDAW and ICESCR, and the important points for connecting the issues under these documents.