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Abstract
This article analyses the impact that some of the United Nations special procedures, namely those focusing on economic social and cultural rights (ESC rights), have upon the development of international human rights law, in particular through clarifying the normative content of the rights and the development of soft-law instruments. It also examines the impact of the ESC rights mandate-holders in implementing ESC rights through promotion activities, protection work and country missions and explores modalities for improvement.
Notes
See OHCHR, ‘Special Procedures Assumed by the Human Rights Council, Thematic Mandates’, http://www2.ohchr.org/english/bodies/chr/special/themes.htm (accessed June 20, 2010).
Several factors contributed to redressing the inferiority of ESC rights within the UN system of rights, such as the establishment of the Committee on Economic, Social and Cultural Rights and its important work in interpreting the provisions of the International Convention on Economic, Social and Cultural Rights (ICESCR), the increased adjudication of cases involving ESC rights at national and regional level, the work of local, national and international NGOs on ESC rights, and not least of all a growing recognition that poverty, development, conflict and rights are interrelated, as reflected in the Millennium Development Declaration.
Hereafter, the independent expert on extreme poverty.
Hereafter, the special rapporteur on the right to adequate housing.
Hereafter, the independent expert on foreign debt.
Hereafter, the special rapporteur on the right to health.
Hereafter, the independent expert on water and sanitation.
See, for example, Report of the Independent Expert on the Situation of Human Rights in Haiti, Michel Forst, UN Doc. A/HRC/11/5, 26 March 2009, paras 81–6; Report of the Special Rapporteur of the Commission on Human Rights, John Dugard, on the Situation of Human Rights in the Palestinian Territories Occupied Since 1967, UN Doc. E/CN.4/2006/29, 17 January 2006, para. 37.
Notably, the following works deal with special procedures: Philip Alston, ‘The Commission on Human Rights’, in The United Nations and Human Rights, ed. Philip Alston (Oxford: Clarendon Press, 1992), 126–210; Jeroen Gutter, ‘Special Procedures and the Human Rights Council: Achievements and Challenges Ahead’, Human Rights Law Review 7, no.1 (2007): 93–107; Oliver Hoehne, ‘Special Procedures and the New Human Rights Council's Need for Strategic Positioning’, Essex Human Rights Review 4, no.1 (2007): 48–64; Ingrid Nifosi, The UN Special Procedures in the Field of Human Rights (Antwerpen, Oxford: Intersentia, 2005); Bertrand G. Ramcharan, The Protection Roles of UN Human Rights Special Procedures (The Hague: Martinus Nijhoff, 2009); Nigel Rodley, ‘United Nations Human Rights Treaty Bodies and Special Procedures of the Commission on Human Rights: Complementarity or Competition?’, Human Rights Quarterly 25 (2003): 882–908. A series of working papers have been prepared by the OHCHR for the review of the special procedures during the transition from the Commission on Human Rights to the Human Rights Council, see http://www2.ohchr.org/english/bodies/chr/special/annual_meetings/13th.htm (accessed 10 June 2010). A project on the role of the special procedures has also been initiated by the Brookings Institution, although the final report was not available at the time this article was finalised.
A number of the ideas in this paper were initially discussed at an ‘Expert Meeting on the Impact of the ESC Rights Special Procedures on Human Rights’ convened in June 2009 by the Geneva Academy of International Humanitarian Law and Human Rights and sponsored by the Friedrich Ebert Foundation (FES) in Geneva. The meeting benefitted from the input of current and former ESC rights special rapporteurs and independent experts, as well as a number of their former and current advisors and researchers from both OHCHR and from independent research projects.
Annual Report of the Special Rapporteur on the Right to Education, Katarina Tomasevski, UN Doc. E/CN.4/1999/49, 13 January 1999, paras 51–74; Annual report of the special rapporteur on the right to education, Katarina Tomasevski, UN Doc. E/CN.4/2000/6, 1 February 2000, paras 32–65; Annual report of the special rapporteur on the right to education, Katarina Tomasevski, UN Doc. E/CN.4/2001/52, 11 January 2001, paras 64–77; Annual report of the special rapporteur on the right to education, Katarina Tomasevski, UN Doc. E/CN.4/2002/60, 7 January 2002, paras 22–45.
Katarina Tomasevski, Education Denied: Costs and Remedies (London: Zed Books, 2003), 51.
Ibid., 51–2. Convention of the Right of the Child, adopted on 20 November 1989, entered into force 2 September 1990.
See Committee on Economic, Social and Cultural Rights, General Comment No. 13: The Right to Education (Art.13), UN Doc. E/C.12/1999/10, 8 December 1999, para. 6. See also Committee on Economic, Social and Cultural Rights, General Comment No. 12: Right to Adequate Food, UN Doc. E/C.12/1999/5, 12 May 1999, paras 6–13; Committee on Economic, Social and Cultural Rights, General Comment No. 15: The Right to Water, UN Doc. E/C.12/2002/11, 20 January 2003, para. 12. See also the overview in the Report of the Independent Expert on the Issue of Human Rights Obligations Related to Access to Safe Drinking Water and Sanitation, Catarina de Albuquerque, UN Doc. A/HRC/12/24, 1 July 2009, paras 13–59 (Hereafter, De Albuquerque, HRC Report 2009).
For a recent example of the adaptation of the ‘4As’ scheme, see De Albuquerque, HRC Report 2009, paras 69–80.
See World Health Organization, The Global Water Supply and Sanitation Assessment 2000 (Geneva: WHO, 2000); World Health Organization/UNICEF, Progress on Drinking-water and Sanitation: Special Focus on Sanitation (Geneva: WHO/UNICEF, 2008).
Elements related to sanitation arose in the work of the Committee on ESC Rights as part of other ESC rights, however there is no comprehensive analysis of sanitation. For example, General Comment 15 on the right to water treats the topic of sanitation only marginally. See CESCR, General Comment No. 15. See also mention of sanitation in the comment on the right to housing: Committee on Economic, Social and Cultural Rights, General Comment No. 4: Right to Adequate Housing, 13 December 1991.
De Albuquerque, HRC Report 2009.
Ibid., para. 63.
Ibid., para. 60.
The framework of states' obligations to respect, protect and fulfill, was firstly developed within the UN system in respect to the right to food by Asbjørn Eide in the early 1990s and consecutively applied by the Committee on ESC Rights and UN special rapporteurs on other economic, social and cultural rights. See Updated Study on the Right to Food, submitted by Mr Asbjørn Eide in Accordance with Sub-Commission Decision 1998/106, 28 June 1992, UN Doc. E/CN.4/Sub.2/1999/12. See also Magdalena Sepulveda, The Nature of the Obligations under the International Covenant on Economic, Social and Cultural Rights (Antwerpen, Oxford, New York: Intersentia, 2003), 209–47.
Only when people are unable to access sanitation for reasons beyond their control, such as in the case of extreme poverty or natural disasters, is the state required to actually provide sanitation services: De Albuquerque, HRC Report 2009, paras 67–8.
UNGA, The Human Right to Water and Sanitation, UN Doc. A/64/L.63/Rev.1, 26 July 2010; see also ‘General Assembly Adopts Resolution Recognizing Access to Clean Water, Sanitation as Human Right, by Recorded Vote of 122 in Favour, None Against, 41 Abstentions’, Department of Public Information, 28 July 2010. UN Human Rights Council, Human Rights and Access to Safe Drinking Water and Sanitation, UN Doc. A/HRC/15/L.14, 30 September 2010. The resolution of the Human Rights Council affirming the human right to safe drinking water and sanitation has been adopted by consensus.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. E/CN.4/2005/47, 24 January 2005, paras 39–40.
Ibid., para. 34. See also the analysis at paras 44–59.
Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/10/5/Add.1, 17 February 2009.
Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc. A/HRC/4/28/Add.2, 5 March 2008, para. 17.
See, for example, Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc. E/CN.4/2004/49/Add.1, 1 March 2004.
Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc. A/HRC/4/28/Add.2, 5 March 2008, para. 30.
Report submitted by the special rapporteur on the right to education, Vernor Muñoz Villalobos, UN Doc. E/CN.4/2006/45, 8 February 2006.
Report of the special rapporteur on the right to education, Vernor Muñoz Villalobos, UN Doc. A/HRC/4/29, 19 February 2007.
Report of the special rapporteur on the right to education, Vernor Muñoz Villalobos, UN Doc. A/HRC/11/8, 2 April 2009.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/58/330, 28 August 2003.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/4/30, 19 January 2007.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/4/30/Add.1,18 May 2007.
Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. E/CN.4/2004/48, 8 March 2004.
Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. E/CN.4/2005/48, 3 March 2005.
The Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security (Rome: FAO, 2005).
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/59/385, 27 September 2004, paras 25–32.
The Draft General Guidelines on Foreign Debt and Human Rights, http://www2.ohchr.org/english/issues/development/debt/DraftGuidelines.htm (accessed June 10, 2010).
The Draft Guiding Principles on Extreme Poverty and Human Rights: The Rights of the Poor are available online together with background information on the drafting, the consultation process and the current efforts to ‘improve’ the guidelines at http://www2.ohchr.org/english/issues/poverty/consultation/index.htm (accessed June 10, 2010).
Human Rights Guidelines for Pharmaceutical Companies in relation to Access to Medicines, http://www2.ohchr.org/english/issues/health/right/ (accessed June 10, 2010).
The remark was made in a reply by GlaxoSmithKline to Paul Hunt's report on his mission to the company, available at http://www.gsk.com/responsibility/downloads/GlaxoSmithKline-Statement-in-response-to-the-Paul-Hunt-Report-on-GSK.pdf (accessed June 10, 2010). In the report, the special rapporteur applies the guidelines in part, see Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Health, Paul Hunt, UN Doc. A/HRC/11/12/Add.2, 18 May 2009.
‘Right-to-Health Responsibilities of Pharmaceutical Companies’, The Lancet 373 (2009), 1998.
Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. A/HRC/4/18, 5 February 2007. See also Committee on Economic, Social and Cultural Rights, General Comment No. 7: Right to Adequate Housing: Forced Evictions, UN Doc.13/12/91, 20 May 1997.
Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/13/33/Add.2, 28 December 2009.
The Committee on Economic, Social and Cultural Rights has used the Voluntary Guidelines to support the progressive realisation of the right to adequate food in the context of national food security in its concluding observations to states parties reports under the ICESCR. See, for example, its concluding observations to Zambia, UN Doc. E/C.12/1/Add.106, 23 June 2005. It also pointed to the Basic Principles and Guidelines on Forced Evictions and Displacement in some of its concluding observations. See, for example, its concluding observations to Cambodia, UN Doc. E/C.12/KHM/CO/1, 12 June 2009.
For example, the Basic Principles and Guidelines on Forced Evictions and Displacement were used in a case before the Constitutional Court of South Africa. See Constitutional Court, Occupiers of 51 Olivia Road Berea Township and 197 Main Street Johannesburg v. City of Johannesburg and Others, Amici curiae by the Community Law Centre (UWC) and COHRE, CCT24/07, 2006, para. 63.
To give just two examples, the Basic Principles and Guidelines on Forced Evictions and Displacement are being employed by the Habitat International Coalition and national offices of the OHCHR, while the Voluntary Guidelines to Support the Progressive Realization of the Right to Adequate Food in the Context of National Food Security are used by the Food First Information and Action Network (FIAN) and the FAO national offices.
See FAO, Right to Food: Lessons Learned in Brazil (FAO, 2007). See also Centro Internacional para Investigaciones en Derechos Humanos (CIIDH), Mision Guatemala…combater el hambre. Informe de Seguimiento a las Recomendaciones del Relator Especial sobre el Derecho a la Alimentación par Guatemala, Jean Ziegler, CIIDH, October 2007, http://www.ciidh.org/publi/desca/pdf/MisionGuatemala.pdf (accessed June 10, 2010).
Enhancing and Strengthening the Effectiveness of the Special Procedures of the Commission on Human Rights, OHCHR Background Paper 2: Working Methods of Mandate-Holders, CHR Dec. 2005/113, section B. Ramcharan proposes the following classification: prevention, urgent action, and appeals; containment and mitigation: the transmittal of complaints to government and visits on the spot; fact-finding, recommendations, and follow-up; remedies; advocacy for protection. See Ramcharan, The Protection Roles of UN Human Rights Special Procedures.
Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, UN Doc. A/64/255, 6 August 2009.
UNCCD, Human Rights and Desertification: Exploring the Complementarity of International Human Rights Law and the United Nations Convention to Combat Desertification (Geneva: UNCCD, 2008).
The declaration and other documents on climate change produced by the special rapporteur can be found at http://www.srfood.org/index.php/en/component/content/article/1-latest-news/471-climate-change-policies-must-be-rooted-in-human-rights-principles (accessed June 20, 2010).
Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/9/23, 8 September 2008; Report of the Special Rapporteur on the Right to Food, Olivier de Schutter, UN Doc. A/HRC/12/31, 21 July 2009.
‘Background note: analysis of the special rapporteur on the global good crisis’, New York, 2 May 2008; Statement of the special rapporteur on the right to food to the Human Rights Council, made at its 7th Special Session, held on 22 May 2008, Geneva; Analysis by the special rapporteur on the right to food of the Comprehensive Framework for Action, adopted by the United Nations High-Level Task Force on Food Security, 23 June 2008.
See, for instance, the Closing speech of secretary-general Ban Ki-Moon to the High Level Meeting on Food Security For All, Madrid, 27 January 2009 and the Declaration of the World Food Security Summit, Rome, November 2009.
Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. E/CN.4/2003/5/Add.1, 12 June 2002.
Report of the special rapporteur on the right to education, Vernor Muñoz Villalobos, UN Doc. A/HRC/8/10, 20 May 2008.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. E/CN.4/2002/58, 10 January 2002.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. E/CN.4/2004/10/Add.2, 31 October 2003.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/2/8, 29 September 2006.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ Reports 2004, para. 133.
Code of Conduct, art. 9.
This practice has been sanctioned by the Code of Conduct for Special Procedures Mandate-Holders adopted by the Human Rights Council in 2007. See in particular, Code of Conduct, art. 10.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/4/30/Add.1, 18 May 2007, paras 10, 28, 64 and 66.
Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/13/33/Add.1, 26 February 2010, paras 72–81.
See, for example, the correspondence between the special rapporteur on the right to food and the World Bank. Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/4/30/Add.1, 18 May 2007; Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/HRC/7/5/Add.1, 29 February 2008.
See, for example, Paul Hunt's urgent appeal, sent together with other special procedures, to the United Nations Interim Administration Mission in Kosovo. See Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Paul Hunt, UN Doc. A/HRC/7/11/Add.1, 4 March 2008.
Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Anand Grover, UN Doc. A/HRC/11/12/Add.1, 18 May 2009.
Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. A/59/385, 27 September 2004.
For example, the Centre on Housing Rights and Evictions (COHRE) is an NGO that works on the right to housing and information provided by it has been used by the Special rapporteur on the right to adequate housing. FIAN International specialises in the right to food and provided information useful to the special rapporteur on the right to food.
Kamelia Kemileva, Benjamin Lee, Claire Mahon and Chris Sidoti, ‘Expertise in the Human Rights Council’ (policy paper prepared under the auspices of the Geneva Academy of International Humanitarian Law and Human Rights, June 2010), http://www.adh-geneve.ch/pdfs/expertise.pdf (last accessed October 13, 2010).
See, for instance, the affidavit of the special rapporteur on the right to food to the High Court of the Cape of Good Hope in respect to right to food of traditional fishers communities, High Court of South Africa (Cape of Good Hope Provincial Division), Kenneth George and Others v. Minister of Environmental Affairs & Tourism, Case No. EC 1/2005, Supporting Affidavit by Jean Ziegler.
As of 10 February 2010, 67 states had extended a standing invitation to special procedures. See the list of these states at http://www2.ohchr.org/english/bodies/chr/special/invitations.htm (last accessed June 10, 2010).
See Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, UN Doc. E/CN.4/2004/48/Add.1, 11 February 2004.
See Report of the special rapporteur on the right to food, Jean Ziegler, UN Doc. E/CN.4/2006/44/Add.1,18 January 2006.
See CIIDH, Mision Guatemala.
See the reports of Jean Ziegler on his missions to India and Bolivia, UN Doc. E/CN.4/2006/44/Add.2,20 March 2006; and UN Doc. A/HRC/7/5/Add.2, 30 January 2008.
See, for example, Report of the special rapporteur on adequate housing as a component of the right to an adequate standard of living, and on the right to non-discrimination in this context, Raquel Rolnik, UN Doc. A/HRC/13/20/Add.2, 26 February 2010.
An example is the follow-up missions of Olivier de Schutter to Brazil and Guatemala. See Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/13/33/Add.6, 19 February 2010; Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/13/33/Add.4, 26 January 2010.
See CIIDH, Mision Guatemala.
The OHCHR branch in Mexico prepared a guide on the Basic Principles and Guidelines on Forced Evictions and Displacement to coincide with the visit of the special rapporteur on the right to housing in 2003.
T. Van Boven, ‘“Political” and “Legal” Control Mechanisms Revisited’, in Human Rights and Criminal Justice for the Downtrodden, ed. M.E. Bergsmo (Leiden: Brill, 2003), 544. See also the discussion in Hoehne, ‘Special Procedures and the New Human Rights Council's Need for Strategic Positioning’.
Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, Paul Hunt, UN doc. A/HRC/11/12/Add.2, 18 May 2009; Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, Paul Hunt, UN doc. A/HRC/4/28/Add.2, 5 March 2008; Report of the special rapporteur on the right of everyone to the enjoyment of the highest attainable standard of health, Paul Hunt, UN Doc. E/CN.4/2004/49/Add.1, 1 March 2004.
Report of the special rapporteur on the right to food, Olivier de Schutter, UN Doc. A/HRC/10/5/Add.2, 4 February 2009.