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Contents
The International Covenant on Economic, Social and Cultural Rights - Commentary, Cases, and Materials by Saul, Ben; Kinley, David; Mowbray, Jaqueline (1st March 2014)
- Preliminary Material
- Advance Praise
- Foreword
- Acknowledgements
- Contents
- Table of Cases
- International Decisions
- African Commission on Human and Peoples’ Rights
- African Court on Human and Peoples’ Rights
- European Court of Human Rights
- ILO Committee of Experts
- Inter-American Court of Human Rights
- International Court of Justice
- International Criminal Tribunal for the Former Yugoslavia
- NAFTA
- Permanent Court of International Justice
- UN Treaty Bodies
- Domestic Decisions
- International Decisions
- Table of Instruments
- International Treaties
- Regional Treaties
- National Laws
- Algeria
- Argentina
- Australia
- Belgium
- Brazil
- Cambodia
- Cameroon
- China
- Colombia
- Congo-Brazzaville
- Costa Rica
- Croatia
- Cuba
- Denmark
- Ecuador
- Eritrea
- France
- Gambia
- Germany
- Ghana
- Hong Kong
- India
- Indonesia
- Iran
- Ireland
- Lesotho
- Lithuania
- Malawi
- Mauritius
- Mexico
- Nepal
- Netherlands
- Nigeria
- Paraguay
- Portugal
- Qatar
- Romania
- Russian Federation
- Seychelles
- Sierra Leone
- South Africa
- South Korea
- Soviet Union
- Sweden
- Switzerland
- Taiwan
- Turkey
- United Kingdom
- Vietnam
- List of Abbreviations
- Main Text
- 1 Introduction
- 2 Article 1: The Right of Peoples of Self-Determination, Article 25: The Right to Freely Utilize Natural Resources
- Preliminary Material
- Introduction and Origins
- Subsequent Normative Developments
- Regional Standards
- Approach to Interpretation by United Nations Treaty Bodies
- Article 1(1)
- ‘All Peoples’
- Minorities
- Indigenous and Tribal Groups
- The General Public
- Vulnerable Sections of the Public
- Inhabitants of Non-Self-Governing Territories
- Inhabitants of Occupied Territories
- Certain Palestinians in the Diaspora
- ‘Freely Determine Their Political Status and Freely Pursue Their Economic, Social and Cultural Development’
- Economic Self-Determination
- Social and Cultural Development
- Article 1(2)
- ‘Freely Dispose of Their Natural Wealth and Resources’
- Internal Aspect
- A people’s protection from its own government
- Protection of indigenous peoples’ rights
- Human Rights Committee practice under Article 1 of the ICCPR
- Other relevant normative standards on indigenous self-determination
- Indigenous self-determination by implication
- Other regional practice in indigenous / tribal self-determination
- External Aspect
- Other Possible Situations—Internal and External
- Limits on the Free Disposition of Resources
- ‘Without Prejudice to Any Obligations Arising out of International Economic Co-operation’
- ‘In No Case May a People Be Deprived of Its Own Means of Subsistence’
- Limits Necessitated by Respect for Other Human Rights
- Limits Necessitated by Respect for Other International Obligations
- Article 1(3)
- 3 Article 2(1): Progressive Realization of ICESCR Rights
- 4 Article 2(2): Non-Discrimination
- 5 Article 2(3): Non-Nationals in Developing States
- 6 Article 3: Equal Rights of Men and Women
- 7 Articles 4, 5, and 24: Limitations on ICESCR Rights and ‘No Prejudice’ Clauses
- 8 Article 6: The Right to Work
- Preliminary Material
- Introduction: Purpose, Origins and Drafting
- Relationship between Article 6 and ILO Standards
- Other International Human Rights Instruments
- The Content of the Right to Work
- Prohibition on Forced Labour
- The Right Not to Be Arbitrarily Deprived of Work
- Availability of Employment and Progressive Realization of Full Employment
- Measures to Realize Article 6—Paragraphs 1 and 2
- Remedies for Violations of the Right to Work
- Obligations of Non-State Actors
- International Cooperation and the Role of International Organizations
- Regional Protection of the Right to Work
- 9 Article 7: Just and Favourable Conditions of Work
- Preliminary Material
- Introduction: Drafting History and Purpose
- Article 7(a): Remuneration
- Personal Scope of Application
- Meaning of ‘Remuneration’ and ‘Wages’
- ‘Fair Wages’ and a ‘Decent Living’
- Obligation to Establish or Facilitate Minimum Wage-Fixing Machinery
- Legal Effects, Implementation and Enforcement of Minimum Wage Fixing
- ‘Equal Remuneration for Work of Equal Value without Distinction of Any Kind, in Particular Women Being Guaranteed Conditions of Work Not Inferior to Those Enjoyed by Men, with Equal Pay for Equal Work’
- Article 7(b): Safe and Healthy Working Conditions
- Article 7(c): Equal Opportunity for Promotion
- Article 7(d): Rest, Leisure, Reasonable Hours and Paid Holidays
- 10 Article 8: Trade Union-Related Rights
- Preliminary Material
- Introduction: Drafting, Purpose, History
- Relevant Regional Standards
- Nature and Scope of State Obligations under Article 8
- Meaning of ‘trade union’ in Article 8
- Article 8(1)(a): Right to Form and Join Trade Unions
- Right to Form Trade Unions
- Right to ‘join the trade union of his choice, subject only to the rules of the organization’
- Article 8(1)(b): Right of Unions to Federate, Confederate or Internationally Associate
- Article 8(1)(c): Right of Trade Unions to Function Freely
- Internal Rules, Administration and Finance
- Union Elections
- Activities in Defence of Workers’ Interests and Union Rights
- Facilities and Access to Workplaces
- Collective Bargaining
- Purpose
- Scope of bargaining
- Representative unions
- Bargaining principles among the parties
- Role of the state in promoting, regulating or restricting collective bargaining
- No duty on the state to collectively bargain
- Restrictions on bargaining freedom
- Public finance and budgetary considerations
- Positive obligations to protect unions or employers
- Minimum core obligations and collective bargaining
- Relationship to individual employment contracts
- Protection from Anti-Union Discrimination
- Protection from Violence, Intimidation and Violations of Civil Liberties
- Dissolution or Suspension
- Article 8(1)(d): The Right to Strike
- Article 8(2): Restrictions on Armed Forces, Police or the State Administration
- Article 8(3): No Prejudice to ILO Convention No. 87
- International Cooperation
- Reservations or Interpretive Declarations on Article 8
- 11 Article 9: The Right to Social Security
- Preliminary Material
- Origins of Social Security
- Purpose of Social Security
- The Drafting of Article 9
- Interpretation of Article 9
- The Scope of State Obligations
- Implementation
- Non-Discrimination in Social Security
- Non-Discrimination and Progressive Realization
- Other Legal Implications of Non-Discrimination
- Particular Grounds of Non-Discrimination
- Non-contributory schemes—migrants
- Non-contributory schemes—refugees and asylum seekers
- Contributory schemes
- Concessions for developing countries
- Relevant ilo standards on migrant workers and social security
- The migrant workers’ convention and social security
- Non-Discrimination and the ICCPR
- Branches of Social Security Assistance
- Health Care
- Sickness
- Employment Injury
- Disability
- Survivors and Orphans
- Old Age
- Unemployment
- Maternity
- Family and Child Support
- International Dimensions of Social Security
- Violations and Remedies
- Future International Standard Setting
- 12 Article 10: The Rights of Families, Mothers and Children
- Preliminary Material
- Introduction: Origins, Purpose, Drafting
- Immediate Implementation and Progressive Realization
- Limitations
- Article 10(1): The Family
- Meaning of ‘Family’ and Scope of Protection
- Protection Issues Arising under Article 10(1)
- Domestic violence
- Sexual violence, exploitation and trafficking
- Harmful traditional practices
- Family disintegration
- Family separation
- Child abuse or neglect
- Immigration policies
- Removal of family members
- Admission and reunification of family members abroad
- Detention; juvenile justice
- Immigration detention
- Child custody, access, abduction
- Protection of the family in armed conflict
- Other Measures of Protection
- Protection and assistance ‘for its establishment’
- Equality in marriage
- Protection and assistance ‘for the care and education of dependent children’
- Benefits and services
- Childcare
- Housing assistance
- Leave to support family/work balance
- Measures of support for the ‘education’ of children
- Institutions relevant to Article 10
- Free Consent to Marriage
- Freedom to End Marriage
- Article 10(2): protection of mothers relating to childbirth
- Article 10(3): Protection of Children and Young Persons
- Meaning of ‘Children and Young Persons’ and Scope of Protection
- Non-Discrimination and Vulnerable Groups
- Birth Registration, Name and Nationality
- Children in Alternative Care and Institutions
- Abduction and Adoption
- Violence and Abuse against Children
- Child Protection Policy, Strategy or Plan
- Protection of Children in Armed Conflict
- Role of Private Organizations in Child Protection
- Economic Exploitation—Child Labour
- ‘Social Exploitation’
- International Cooperation and Assistance under Article 10
- Summary of State Obligations under Article 10
- 13 Article 11: The Right to an Adequate Standard of Living
- 14 Article 12: The Right to Health
- Preliminary Material
- Introduction
- Defining ‘Health’ and the ‘Right to Health’
- Reconciling Public Interests and Private Rights
- The Socio-Economic Context
- The Political and Legal Imperatives
- Translation of Context and Obligations into Action
- Availability
- Accessibility
- Quality
- Realizing the Right to Health: Implementation, Monitoring and Enforcement
- 15 Article 13: The Right to Education
- 16 Article 14: Implementation of the Right to Free, Compulsory Primary Education
- 17 Article 15: Cultural Rights
- Preliminary Material
- Background and Context
- Article 15(1)(a)
- Article 15(1)(b)
- Article 15(1)(c)
- Conclusion
- Further Material
- Appendices
- Appendix I International Covenant on Economic, Social and Cultural Rights: (adopted 16 December 1966, 993 UNTS 3 entered into force 3 January 1976)
- Appendix II ICESCR: Reservations and Declarations: (Unless otherwise indicated, the declarations and reservations were made upon ratification, accession or succession. For objections thereto and territorial applications, see hereinafter.)
- Afghanistan
- Algeria
- Bahamas
- Bahrain
- Bangladesh
- Barbados
- Belarus
- Belgium
- Bulgaria
- China
- Congo
- Cuba
- Czech Republic
- Denmark
- Egypt
- France
- Guinea
- Hungary
- India
- Indonesia
- Iraq
- Ireland
- Japan
- Kenya
- Kuwait
- Libya
- Madagascar
- Malta
- Mexico
- Monaco
- Mongolia
- Netherlands
- New Zealand
- Norway
- Pakistan
- Romania
- Russian Federation
- Rwanda
- Slovakia
- Sweden
- Syrian Arab Republic
- Thailand
- Trinidad and Tobago
- Turkey
- Ukraine
- United Kingdom of Great Britain and Northern Ireland
- Viet Nam
- Yemen
- Zambia
- Appendix III ICESCR: Objections to Reservations or Declarations: (Unless otherwise indicated, the objections were made upon ratification, accession or succession.)
- Cyprus
- Denmark
- Finland
- France
- Germany
- Greece
- Italy
- Latvia
- Netherlands
- Norway
- Pakistan
- Portugal
- Slovakia
- Spain
- Sweden
- United Kingdom of Great Britain and Northern Ireland
- Appendix IV Optional Protocol to the ICESCR: (adopted 10 December 2008, entered into force 5 May 2013)
- Preamble
- Art.1 Competence of the Committee to receive and consider communications
- Art.2 Communications
- Art.3 Admissibility
- Art.4 Communications not revealing a clear disadvantage
- Art.5 Interim measures
- Art.6 Transmission of the communication
- Art.7 Friendly settlement
- Art.8 Examination of communications
- Art.9 Follow-up to the views of the Committee
- Art.10 Inter-State communications
- Art.11 Inquiry procedure
- Art.12 Follow-up to the inquiry procedure
- Art.13 Protection measures
- Art.14 International assistance and cooperation
- Art.15 Annual report
- Art.16 Dissemination and information
- Art.17 Signature, ratification and accession
- Art.18 Entry into force
- Art.19 Amendments
- Art.20 Denunciation
- Art.21 Notification by the Secretary-General
- Art.22 Official languages
- Appendix V Optional Protocol: Reservations and Declarations
- Appendix VI Ratification Status of the ICESCR and Optional Protocol
- Appendix VII Economic and Social Council Resolution 1985/17 (28 May 1985): Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the ICESCR
- Appendix VIII CESCR, Guidelines on treaty-specific documents to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights, E/C.12/2008/2, 24 March 2009
- Note by the Secretary-General
- ANNEX
- Guidelines on treaty-specific documents to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights
- A The revised reporting system and organization of information to be included in the common core document and in the treaty-specific document submitted to the Committee on Economic, Social and Cultural Rights
- B Part of the treaty-specific document submitted to the Committee relating to general provisions of the Covenant
- C Part of the report relating to specific rights
- Guidelines on treaty-specific documents to be submitted by States parties under articles 16 and 17 of the International Covenant on Economic, Social and Cultural Rights
- Appendix IX CESCR, Provisional Rules of Procedure under the ICESCR, adopted by the CESCR at its 3rd session (1989)
- Part One General Rules
- I Sessions
- II Agenda
- III Members of the Committee
- IV Officers
- V Secretariat
- VI Languages
- VII Public and Private Meetings
- VIII Records
- IX Distribution of Reports and Other Official Documents of the Committee
- X Conduct of Business
- XI Voting
- XII Elections
- XIII Subsidiary Bodies
- XIV Report of the Committee
- Part Two Rules Relating to the Functions of the Committee
- Part Three Interpretation and Amendments
- Part One General Rules
- Appendix X CESCR, Provisional Rules of Procedure under the Optional Protocol to the ICESCR, adopted by the CESCR at its 49th session (12-30 November 2012), E/C.12/49/3 (15 January 2013)
- Procedures for the consideration of individual communications received under the Optional Protocol
- Transmission of communications to the Committee
- Record and list of communications
- Request for clarification or additional information
- Authors of communications
- Non-participation of a member in the examination of a communication
- Establishment of Working Groups and designation of Rapporteurs
- Interim measures
- Order of communications
- Method of dealing with communications
- Procedures with regard to communications received
- State party’s request for consideration of the admissibility separately from the merits
- Inadmissible communications
- Communications declared admissible prior to the submission of the State party’s observations on merits
- Examination of communications on their merits
- Friendly settlement
- Individual opinions
- Discontinuance of communications
- Follow-up to Views of the Committee and Friendly Settlement Agreements
- Confidentiality of communications
- Protection measures
- Proceedings under the Inquiry Procedure of the Optional Protocol
- Applicability
- Transmission of information to the Committee
- Record of information
- Summary of information
- Confidentiality
- Preliminary consideration of information by the Committee
- Examination of information
- Establishment of an inquiry
- Cooperation of the State party concerned
- Visits
- Hearings
- Assistance during an inquiry
- Transmission of findings, comments or suggestions
- Follow-up action by the State party
- Protection measures
- Proceedings under the Inter-State Communications Procedure of the Optional Protocol
- Declarations by States parties
- Notification by the States parties concerned
- Record of communications
- Information to the members of the Committee
- Meetings
- Issue of communiqués concerning closed meetings
- Requirements for the consideration of communications
- Good offices
- Request for information
- Attendance by the States parties concerned
- Report of the Committee
- Communiqués on the Committee’s activities under the Optional Protocol
- Procedures for the consideration of individual communications received under the Optional Protocol
- Appendix XI List of CESCR General Comments (1989–2013)
- Appendix XII List of Concluding Observations or Comments on States (1980–2013)
- Bibliography
- Index
- Appendices
