Human rights instruments

154 Article 14, paragraph 2, of the Convention on the Elimination of All Forms of Discrimination Against Women stipulates States parties shall ensure to women the right to “adequate living conditions, particularly in relation to […] sanitation”. Article 24, paragraph 2, of the Convention on the Rights of the Child requires States parties “To ensure that all segments of society […] have access to education and are supported in the use of basic knowledge of […] the advantages of […] hygiene and environmental sanitation.”

155 The Committee notes that the United Nations Convention on the Law of Non Navigational Uses of Watercourses requires that social and human needs be taken into account in determining the equitable utilization of watercourses, that States parties take measures to prevent significant harm being caused, and, in the event of conflict, special regard must be given to the requirements of vital human needs: see articles 5, 7 and 10 of the Convention.

156 In general comment No. 8 (1997), the Committee noted the disruptive effect of sanctions upon sanitation supplies and clean drinking water, and that sanctions regimes should provide for repairs to infrastructure essential to provide clean water.

157 See paragraph 23 for a definition of “third parties”.

158 See E. Riedel, “New bearings to the State reporting procedure: practical ways to operationalize economic social and cultural rights   The example of the right to health”, in S. von Schorlemer (ed.), Praxishandbuch UNO, 2002, pp. 345 358. The Committee notes, for example, the commitment in the 2002 World Summit on Sustainable Development Plan of Implementation to halve, by the year 2015, the proportion of people who are unable to reach or to afford safe drinking water (as outlined in the Millennium Declaration) and the proportion of people who do not have access to basic sanitation.

159 Principle 10 of the Rio Declaration on Environment and Development (Report of the United Nations Conference on Environment and Development, see footnote 5 above), states with respect to environmental issues that “effective access to judicial and administrative proceedings, including remedy and redress, shall be provided”.

160 Draft International Covenants on Human Rights Report of the Third Committee. A/53/65 (17 December 1962), para. 85.

161 Committee on Economic, Social and Cultural Rights (hereinafter CESCR), general comment No. 4 (1991): The right to adequate housing (article 11, paragraph 1 of the Covenant) para 6; general comment No. 7 (1997): The right to adequate housing (article 11, paragraph 1 of the Covenant): Forced evictions, para. 10.

162 CESCR, general comment No. 12 (1999): The right to adequate food (article 11 of the Covenant), para. 26.

163 CESCR, general comment No. 11 (1999): Plans for primary education (article 14 of the Covenant), para. 3; general comment No. 13 (1999): The right to education (article 13 of the Covenant), paras. 6 (b), 31 and 32.

164 CESCR, general comment No. 14 (2000): The right to the highest attainable standard of health (article 12 of the Covenant), paras. 18 22.

165 CESCR, general comment No. 15 (2000): The right to water (articles 11 and 12 of the Covenant), paras. 13 and 14.

166 Cf. Committee on the Elimination of Racial Discrimination, general comment XXV (2000): Gender related dimensions of racial discrimination.

167 As defined in article 1 of the Convention on the Elimination of All Forms of Discrimination against Women.

168 However, there is one exception to this general principle: reasons specific to an individual male candidate may tilt the balance in his favour, which is to be assessed objectively, taking into account all criteria pertaining to the individual candidates. This is a requirement of the principle of proportionality.

169 CESCR, general comment No. 3 (1990): The nature of States parties obligations (art. 2, para. 2).

170 According to CESCR general comment Nos. 12 and 13, the obligation to fulfil incorporates an obligation to facilitate and an obligation to provide. In the present general comment, the obligation to fulfil also incorporates an obligation to promote the elimination of all forms of discrimination against women.

171 Other examples of obligations and possible violations of article 3 in relation to article 11 (1) and (2) are further discussed in CESCR general comment No. 12, para. 26.

172 CESCR general comment No. 14. paras. 18 21.

173 Reference is made in this regard to general recommendation No. 25 on article 4, paragraph 1, of the Convention on the Elimination of All Forms of Discrimination against Women adopted by the Committee on the Elimination of Discrimination against Women (CEDAW), CESCR general comment No. 13 and the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights.

174 Relevant international instruments include, inter alia, the Paris Convention for the Protection of Industrial Property, as last revised in 1967; the Berne Convention for the Protection of Literary and Artistic Works, as last revised in 1979; the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention); the WIPO Copyright Treaty; the WIPO Performances and Phonograms Treaty (which, inter alia, provides international protection for performers of “expressions of folklore”), the Convention on Biological Diversity; the Universal Copyright Convention, as last revised in 1971; and the Agreement on Trade related Aspects of Intellectual Property Rights (TRIPS Agreement) of WTO.

175 See article 17 of the Universal Declaration of Human Rights; article 5 (d) (v) of the International Convention on the Elimination of All Forms of Racial Discrimination; article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights); article 21 of the American Convention on Human Rights; and article 4 of the African Charter on Human and Peoples’ Rights (Banjul Charter).

176 See article 19 of the Universal Declaration of Human Rights; article 19, paragraph 2, of the International Covenant on Civil and Political Rights; article 5 of the European Convention on Human Rights; article 13 of the American Declaration on Human Rights and article 9 of the African Charter on Human and People’s Rights.

177 See article 26, paragraph 2, of the Universal Declaration of Human Rights. See also article 13, paragraph 1, of the Covenant.

178 See article 5 (e) (vi) of the Convention on the Elimination of All Forms of Racial Discrimination; article 14 of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) and article 17, paragraph 2, of the African Charter on Human and Peoples’ Rights.

179 See article 27 of the International Covenant on Civil and Political Rights; article 13 (c) of the Convention on the Elimination of all Forms of Discrimination against Women; article 31 of the Convention on the Rights of the Child and article 31 of the International Convention on the Rights of All Migrant Workers and Members of their Families.

180 See also paragraph 32 below.

181 See Maria Green, International Anti Poverty Law Centre, “Drafting history of article 15 (1) (c) of the International Covenant on Economic, Social and Cultural Rights”, E/C.12/2000/15, paragraph 45.

182 Committee on Economic, Social and Cultural Rights, twenty seventh session (2001), “Human Rights and Intellectual Property”, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15, at paragraph 6.

183 See also paragraph 32 below.

184 See article 5, paragraph 2 of the Covenant.

185 See below, at paragraphs 22, 23 and 35. See also articles 4 and 5 of the Covenant.

186 Commission on Human Rights, second session, Report of the Working Group on the Declaration on Human Rights, E/CN.4/57, 10 December 1947, page 15.

187 See article 6 bis of the Berne Convention for the Protection of Literary and Artistic Works.

188 This prohibition, to some extent, duplicates the national treatment provisions contained in international conventions for the protection of intellectual property, the main difference being that articles 2, paragraph 2 and 3 of the Covenant apply not only to foreigners but also to a State party’s own nationals (see articles 6 to 15 of the Covenant: “everyone”). See also Committee on Economic, Social and Cultural Rights, thirty fourth session, general comment No. 16 (2005) on the equal right of men and women to the enjoyment of all economic, social and cultural rights, 13 May 2005.

189 See paragraph 35 below. The need to strike an adequate balance between article 15, paragraph 1 (c), and other rights under the Covenant applies, in particular, to the rights to take part in cultural life (art. 15, para. 1 (a)) and to enjoy the benefits of scientific progress and its applications (art. 15, para. 1 (b)), as well as the rights to food (art. 11), health (art. 12) and education (art. 13).

190 See article 17, paragraph 2, of the Universal Declaration of Human Rights; article 21, paragraph 2, of the American Convention on Human Rights and article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

191 See general comment No. 3 (1990), at paragraph 9; general comment No. 13 (1999) on the right to education, at paragraph 43 and general comment No. 14 (2000) on the right to the highest attainable standard of health, at paragraph 30. See also the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights (Limburg Principles), at paragraphs 16 and 22, Maastricht, 2 6 June 1986.

192 See general comment No. 3 (1990), paragraph 9; general comment No. 13 (1999), paragraph 44; general comment No. 14 (2000), paragraph 31. See also Limburg Principles, paragraph 21.

193 See general comment No. 3 (1990), at paragraph 9; general comment No. 13 (1999), at paragraph 45 and general comment No. 14 (2000), at paragraph 32.

194 See general comment No. 13 (1999), at paragraphs 46 and 47, and general comment No. 14 (2000), at paragraph 33. See also Maastricht Guidelines on Violations of Economic, Social and Cultural Rights (Maastricht Guidelines), paragraph 6, Maastricht, 22 26 January 1997.

195 See article 15, paragraph 1 (c), of the Covenant, read in conjunction with article 27 of the International Covenant on Civil and Political Rights. See also UNESCO, General Conference, nineteenth session, Recommendation on Participation by the People at Large in Cultural Life and Their Contribution to It, adopted on 26 November 1976, at paragraph I (2) (f).

196 See Committee on Economic, Social and Cultural Rights, nineteenth session, general comment No. 9 (1998) on the domestic application of the Covenant, at paragraph 9. See also article 8 of the Universal Declaration of Human Rights and article 2, paragraph 3, of the International Covenant on Civil and Political Rights.

197 See also article 22, paragraph 1, of the International Covenant on Civil and Political Rights.

198 See Committee on Economic, Social and Cultural Rights, twenty seventh session (2001), “Human Rights and Intellectual Property”, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15, at paragraph 9.

199 Ibid., at paragraph 17.

200 Ibid., at paragraph 12.

201 Ibid., at paragraph 4.

202 Cf. article 27, paragraph 2, of the WTO TRIPS Agreement.

203 See article 4 of the UNESCO Universal Declaration on the Human Genome and Human Rights, although this instrument is not as such legally binding.

204 Committee on Economic, Social and Cultural Rights, fifth session, general comment No. 3 (1990), at paragraph 14.

205 Committee on Economic, Social and Cultural Rights, twenty seventh session, Human Rights and Intellectual Property, Statement by the Committee on Economic, Social and Cultural Rights, 29 November 2001, E/C.12/2001/15, at paragraph 15.

206 See article 8 (j) of the Convention on Biological Diversity. See also Sub Commission on the Promotion and Protection of Human Rights, 26th meeting, Resolution 2001/21, E/CN.4/Sub.2/Res/2001/21.

207 Cf. Universal Declaration of Human Rights, article 8; general comment No. 9 (1998), at paragraphs 3 and 9; Limburg Principles, at paragraph 19; Maastricht Guidelines, at paragraph 22.

208 See general comment No. 9 (1998), at paragraph 9 (with regard to administrative remedies). See further article 14 (1) of the International Covenant on Civil and Political Rights.

209 See general comment No. 9, at paragraph 9.

210 Cf. Committee on Economic, Social and Cultural Rights, eighteenth session, Globalization and Economic, Social and Cultural Rights, Statement by the Committee on Economic, Social and Cultural Rights, 11 May 1998, at paragraph 5.

211 See the preamble to ILO Convention No. 168, 1988: “… the importance of work and productive employment in any society not only because of the resources which they create for the community, but also because of the income which they bring to workers, the social role which they confer and the feeling of self esteem which workers derive from them.”

212 Commission on Human Rights, eleventh session, agenda item 31, A/3525 (1957).

213 ILO Convention No. 29 concerning Forced or Compulsory Labour, 1930, article 2, paragraph 1; see also paragraph 2. ILO Convention No. 105 concerning the Abolition of Forced Labour, 1957.

214 Only some of these topics feature in articles 2.2 and 3 of the Covenant. The others have been inferred from the practice of the Committee or from legislation or judicial practice in a growing number of States parties.

215 See general comment No. 3 (1990), The nature of States parties’ obligations, paragraph 12.

216 See general comment No. 16 (2005) on article 3: the equal right of men and women to the enjoyment of all economic, social and cultural rights, paragraphs 23 25.

217 See the Convention on the Rights of the Child, 1989, article 32, paragraph 1, reflected in the second preambular paragraph of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography. See also article 3, paragraph 1, of the Protocol, on forced labour.

218 See general comment No. 6 (1995) on the economic, social and cultural rights of older persons, paragraph 22 (and paragraph 24 on retirement).

219 See general comment No. 5 (1994) on persons with disabilities, including other references in paragraphs 20 24.

220 See ILO Convention No. 159 concerning Vocational Rehabilitation and Employment (Disabled Persons), 1983. See article 1, paragraph 2, on access to employment. See also the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, proclaimed by the General Assembly in it resolution 48/96 of 20 December 1993.

221 See general comment No. 3 (1990) on the nature of States parties’ obligations, paragraph 1.

222 Ibid, para. 2.

223 Ibid, para. 9.

224 Ibid, para. 9.

225 If offered on a voluntary basis. On the question of the work of prisoners, see also the Standard Minimum Rules for the Treatment of Prisoners and article 2 of the ILO Convention (No. 29) concerning Forced or Compulsory Labour.

226 See Convention on the Rights of the Child, article 31, paragraph 1.

227 See ILO Convention on the Worst Forms of Child Labour, article 2, paragraph 7, and the Committee’s general comment No. 13 on the right to education.

228 See ILO Convention No. 122 concerning Employ Policy, 1964, article 1, paragraph 1.

229 See ILO Convention No. 88 concerning the Organization of the Employment Service, 1948.

230 See ILO Convention No. 88 and, similarly, ILO Convention No. 2 concerning Unemployment, 1919. See also ILO Convention No. 168 concerning Employment Promotion and Protection against Unemployment, 1988.

231 See general comment No. 12 (1999) on the right to adequate food, paragraph 26.

232 See ILO Convention No. 160 concerning Labour Statistics, in particular, its articles 1 and 2.

233 Adopted on 23 November 2007.

234 Declaration concerning the aims and purposes of the International Labour Organization (ILO), annex to the Constitution of the ILO, section III (f).

235 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), article 5 (e) (iv); Convention on the Elimination of All Forms of Discrimination against Women, articles 11, para. 1 (e) and 14, para. 2 (c); and Convention on the Rights of the Child, article 26.

236 For explicit mention of the right to social security, see American Declaration of the Rights and Duties of Man, article XVI; Additional Protocol to the American Convention on Human Rights in the Area of Economic Social and Cultural Rights (Protocol of San Salvador), article 9; European Social Charter (and 1996 revised version), articles 12, 13 and 14.

237 International Labour Conference, 89th session, report of the Committee on Social Security, resolutions and conclusions concerning social security.

238 Michael Cichon and Krzysztof Hagemejer, “Social Security for All: Investing in Global and Economic Development. A Consultation”, Issues in Social Protection Series, Discussion Paper 16, ILO Social Security Department, Geneva, 2006.

239 See general comments No. 5 (1994) on persons with disabilities; No. 6 (1995) on the economic, social and cultural rights of older persons; No. 12 (1999) on the right to adequate food (art. 11); No. 14 (2000) on the right to the highest attainable standard of health (art. 12); No. 15 (2002) on the right to water (arts. 11 and 12); No. 16 (2005) on the equal right of men and women to the enjoyment of all economic, social and cultural rights (art. 3); and No. 18 (2005) on the right to work (art. 6). See also Statement by the Committee: An evaluation of the obligation to take steps to the “maximum of available resources” under an optional protocol to the Covenant (E/C.12/2007/1).

240 See in particular ILO Convention No. 102 (1952) on Social Security (Minimum Standards), which was confirmed by the ILO Governing Body in 2002 as an instrument corresponding to contemporary needs and circumstances. These categories were also affirmed by States and trade union and employer representatives in the ILO Maritime Labour Convention (2006), regulation 4.5, standard A4.5. The Committee’s revised general guidelines for State reporting of 1991 follow this approach. See also Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), arts. 11, 12 and 13.

241 General comment No. 14 (2000) on the right to the highest attainable standard of health (art. 12). Coverage must include any morbid condition, whatever its cause, and pregnancy and confinement and their consequences, general and practical medical care, together with hospitalization.

242 See above, para. 4 and see below paras. 23 27.

243 See general comment No. 6 (1995) on the economic, social and cultural rights of older persons.

244 As defined in paras. 29 39 below.

245 See ILO Convention No. 121 (1964) on Employment Injury Benefits.

246 See Convention on the Rights of the Child, article 26.

247 The Committee notes that ILO Convention No. 183 (2000) on Maternity Protection provides that maternity leave should be for a period of not less than 14 weeks, including a period of six weeks’ compulsory leave after childbirth.

248 See CEDAW, article 11, para. 2 (b).

249 Institutionalization of persons with disabilities, unless rendered necessary for other reasons, cannot be regarded as an adequate substitute for the social security and income support rights of such persons, as well as rehabilitation and employment support, in order to assist persons with disabilities to secure work as required by articles 6 and 7 of the Covenant.

250 The Committee also notes that children have a right to social security. See Convention on the Rights of the Child, article 26.

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