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International accountability for ESCR

International accountability for ESCR

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International accountability for Economic, Social and Cultural Rights: recent developments in the complaints procedure of the Committee on Economic, Social and Cultural Rights

 

There was much excitement in human rights circles when the complaints procedure of the International Covenant on Economic, Social and Cultural Rights (ICESCR) came into effect on 5 May 2013. Hopes were high for international accountability for economic, social and cultural rights, after a long period without any avenue of accountability at the international level for violations of economic, social and cultural (ESC) rights. After almost six years of operation and only 5 decisions on the merits, how has this procedure advanced the realisation of ESC rights?

The Optional Protocol to the ICESCR (OP) recognizes the competence of the Committee on Economic, Social and Cultural Rights (CESCR), to receive and consider ‘communications’ submitted by individuals or groups of individuals, who claim to be victims of a violation of the economic, social and cultural rights set out in the ICESCR. It provides an avenue for individuals to complain about a State’s failure to implement the Covenant, after the satisfaction of certain admissibility criteria, including the exhaustion of domestic remedies.

Out of the 169 state parties to the ICESCR, only 24 states have ratified the Optional Protocol. Of this number, only 3 are African states (Gabon, Niger and Central Africa Republic) and only 1 is an Asian state (Mongolia). After an initial flurry soon after the adoption of the OP in 2008, ratifications have been slow. The latest state to sign was Venezuela, in October 2018.

Nevertheless, the Committee has received a steady flow of communications with 64 registered in total. Of those registered communications :

  • the Committee has adopted 5 ‘Views’ (decisions), of which 4 were found to be violations of the ICESCR;

  • 14 were declared inadmissible;

  • 6 were discontinued or withdrawn; and

  • 39 are pending before the Committee.

41 of the 64 communications were received since October of 2017. This represented an increase of 412 per cent in new registrations in 2017-2018, compared with 2016-2017, when only eight cases were registered. All but three of the newly registered cases involve Spain and deal with evictions and the right to adequate housing. Most also seek interim measures related to a threatened eviction.

This deluge of cases has significantly increased the caseload of the Committee and put it under new workload pressure. It will be interesting to see how the Committee will deal with this and whether it might seek a group solution in relation to Spanish housing cases.

Unfortunately, there has not been an even geographical spread of cases brought to the Committee. Even before this surge in cases against Spain, the vast majority of the cases registered were against Spain and frequently related to the housing crisis in Spain. No cases have been submitted against Asian or African countries and only 2 cases have been brought against Latin American countries (2 against Ecuador ). This in part reflects the geographical spread of ratifications of the OP and, perhaps also, a low level of awareness of the complaints mechanism.

A high number of the communications have been found to be inadmissible (15). The vast majority of those were found inadmissible on the grounds of ‘rationae temporis’ which means that the alleged violation occurred before the entry into force of the Covenant for that state. In a case against Spain regarding the right to health, decided in 2018, the Committee confirmed that where the alleged violation occurs before the entry into force date, but continues after that date, the case will not be inadmissible.

A reasonable number of communications were also found inadmissible on the grounds that the Committee did not have jurisdiction, often because the claims were made under another human rights treaty. A smaller number were found inadmissible on the grounds of failure to exhaust domestic remedies and insufficient substantiation of the facts.

In terms of decisions on the merits, the Committee found violations against Spain in two cases relating to housing rights, against Ecuador in one case regarding the right to social security and gender equality and against Italy in one case regarding the right to health of a woman undergoing IVF treatment. The case where no violation was found, was against Spain and related to the right to social security for prisoners.

It is interesting to note that in most of the cases where a violation was found, the Committee had received a third party intervention, submitted by non-governmental organisations (NGO) or a Special Rapporteur. The Committee formalised this process through the adoption of ‘Guidance on third party interventions’ which requires intervenors to seek and be granted permission from the Committee to make the third party intervention.

In one case the state challenged the decision of the Committee to allow the submission of a third party intervention from an NGO. However, the Committee confirmed that under article 8(1) of the OP, the Committee can accept relevant information and documentation submitted by third-party persons or bodies where necessary to properly decide on a case, provided that such submissions are authorized by the Committee and subsequently transmitted to the parties for comments.

Interim measures were requested (article 5 of the OP) in at least one of the cases adjudicated on the merits, but were refused, on the grounds that the Committee had not received sufficient individualized information to substantiate the existence of possible irreparable damage to the authors.

The main topics of the communications registered so far have focused on evictions, the right to housing and the right to social security. There have also been cases on the right to health, the right to work and cultural rights.

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Recent communications

In 2018, the Committee gave its decision in a case on the right to social security, Trujillo Calero v. Ecuador (E/C.12/63/D/10/2015). The case was brought by Ms. Marcia Cecilia Trujillo Calero who had made 29 years’ worth of retirement contributions to the Ecuadorian Institute of Social Security (IESS), including during the period that she was an unpaid domestic worker looking after her children. Her application for early retirement was denied on the grounds that she did not have the required minimum 300 contributions, because an eight-month pause in voluntary payments (during the period when she was not earning an income) had disaffiliated her from the retirement scheme and hence invalidated all her subsequent voluntary payments.

The Committee held that Ecuador violated Ms. Trujillo’s rights to social security (Article 9), to non-discrimination (Art 2(2)) and to gender equality (Art 3), when the IESS denied her early retirement request and that the conditions of the voluntary affiliation imposed on the author, as an unpaid domestic worker, constituted discriminatory treatment in relation to her right to social security.

The Committee also pointed out that the State had not sufficiently explained the reasonableness and proportionality of the requirements of access to the scheme, and to remain a voluntary affiliate, in the case of women who performed unpaid household work.

This decision was important because the Committee set out the minimum state obligations in relation to the right to social security and because it was the first time the Committee addressed the gendered impacts of state policy. In analysing the link between unpaid care work and gendered access to social security, the Committee applied a ‘substantive equality’ approach. It noted the discriminatory impact of the law in practice, such that a high proportion of those without access to an old age pension, were women who had devoted a significant proportion of their working life to unpaid domestic/care work. Without an income it was much more difficult for these women to contribute to the contributory pensions scheme.

In terms of remedies, the Committee ordered payment to the complainant of the retirement benefits, her legal costs and compensation for the violation. Following its practice in previous cases, the Committee also ordered general measures which attempted to address structural issues, including: the adoption of special measures in relation to women to ensure gender equality, including steps to remove impediments to women unpaid care workers contributing to social security plans; and the formulation of a plan for a comprehensive non-contributive pension scheme.

Another example of innovative and targeted remedies is the Committee’s order in the case M.B. Djazia and N. Bellili v Spain, that Spain provide the complainant with public housing and resolve the lack of coordination between court decisions and social services, which can result in an evicted person being left without adequate accommodation.

A trend in a number of the cases where a violation was found, including the Trujillo Calero case, is the State’s failure to submit sufficient information to justify their decisions or actions. It seems that States are not yet familiar with the adjudication of ESC rights and have not realised the importance of submitting information to show that they are using the maximum available resources to fulfil rights and to show the ‘reasonableness’ of their decisions not to fulfil rights (or to limit rights).

This information is essential for the Committee to properly adjudicate the reasonableness of state action or inaction. Often this requires information of a systemic nature, for instance regarding the allocation of resources to, and within, relevant sectors (housing, health etc.). It might also require information about processes for the development of policies or decisions that impact people, for instance, showing whether the state consulted with affected persons or whether the discriminatory impact of policies was considered and justified?

Another recent case of interest, is S.C and G.P vs. Italy. The case was brought by a couple undergoing invitro fertilization (IVF) treatment, where the woman was forced to allow the transfer of embryos to her uterus. The woman alleged violations of her right to family (Art.10), to health (Art.12) and to enjoy the benefits of scientific progress and its applications (Art 15 (1) (b), 2 & 3).

The authors produced a number of embryos which were tested prior to implantation, to identify if the embryos had any genetic disorders which would result in a miscarriage if implanted in the woman’s uterus. The embryos were said to be of average quality, with low chances of success. Fearing she would suffer a miscarriage, the woman requested that the embryos not be transferred to her uterus.

The medical clinic told the woman that the Italian law 40/2004, which regulates the use of reproductive technology, required her to have the embryos transferred to her uterus and threatened to sue her if she insisted in her refusal. The woman felt compelled to allow the procedure and subsequently suffered a miscarriage.

She requested that the remaining nine embryos be donated to scientific research. This request was denied by the clinic noting that Law 40/2004 prohibited research on embryos. She filed an unsuccessful lawsuit against the clinic and the state contesting the clinic’s refusal to surrender to her the remaining embryos and the lack of consent prior to embryo implantation in her uterus.

The Committee declared inadmissible the authors claim concerning the prohibition against them donating the nine embryos to scientific research, on the grounds that they had failed to sufficiently substantiate their claims. In relation to the authors’ second claim, the Committee found a violation of the right to health (article 12).

It observed that the right to health includes the right to make free and informed decisions concerning medical treatment. Laws and policies that prescribe involuntary, coercive or forced medical interventions violate the state’s responsibility to respect the right to health. Therefore, forcing a woman to have an embryo transferred into her uterus, constitutes a forced medical intervention.

Further, the Committee stated that restrictions on Covenant rights must comply with the conditions in article 4, including that the limitation is 'compatible with the nature of these rights'. The Committee noted that the prohibition on withdrawing one’s consent to the transfer of an embryo, can lead to forced medical interventions or even forced pregnancies and was therefore not compatible with the nature of the right to health. It was thus a violation of article 12 of the Covenant.

The Committee recommended that Italy award compensation for the physical, psychological and moral damages suffered and adopt appropriate legislative and/or administrative measures to guarantee the right of all women to take free decisions regarding medical interventions affecting their bodies and to allow all persons to withdraw their consent to the transfer of embryos for procreation.

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Conclusion

The ICESCR communications procedure has had a steady and positive start. On the whole, the cases before the Committee have been relatively straight forward and enabled the Committee to develop strong procedural and substantive jurisprudence, particularly on housing, social security and gender equality. The Committee has also emphasised underlying structural problems, such as indirect discrimination in the social security system. It has also reminded States, particularly through the remedies ordered, of their obligations to fulfil ESC rights. For example, asking States to: put in place a comprehensive housing strategy to guarantee the right to adequate housing for people with low incomes; and formulate, within a reasonable time, a plan for a comprehensive non-contributive pension scheme.

On admissibility matters, the Committee has followed the jurisprudence of the other human rights treaty bodies. It has innovated on the question of third party interventions and the publication of its table of pending cases. Unfortunately the dramatic increase in caseload is likely to create delays, but may also lead to an increase in the allocation of sitting time to the Committee.

The low ratifications of the OP remains concerning and may hamper the potential for the development of important international jurisprudence on economic social and cultural rights. Boosting the ratifications of the OP is essential to ensuring the continuing legitimacy of the procedure and enabling the Committee to develop a well-rounded body of case law, addressing a range of ESC rights issues in a range of countries across the world.

By Lucy McKernan, Geneva Representative, GI-ESCR & Alderin Ongwae, Intern, GI-ESCR

2 April 2019

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Climate and Environmental Justice

We have advanced rights-based and gender-transformative transition frameworks through research that centres the lived experiences of women and marginalised communities on the frontlines of extractive energy policies, promoting climate and energy frameworks attentive to the social and care-related impacts of transition pathways. We have developed a clear vision for a gender-just transition, firmly rooted in gender and human rights norms, establishing both the legal basis and the direction for the transformative changes our planet and societies urgently need. In particular, the ‘Guiding Principles for Gender Equality and Human Rights in the Energy Transition’, a collective effort built through online consultations, an in-person workshop and multiple rounds of revision with activists, practitioners and experts from around the world, outline a transformative vision for reshaping global energy systems through a human rights and gender equality lens.

Our work recognises that the climate emergency is both an existential threat and an opportunity to reimagine societies built on social, gender, economic and environmental justice. We ground our advocacy in feminist and intersectional principles, prioritising the agency and perspectives of communities in the Global South who have contributed the least to the climate emergency yet face its most devastating consequences. Central to our approach is the understanding that energy is not merely a commodity but a fundamental human right; essential for dignity, health, education, work and the realisation of countless other rights. We challenge approaches to the energy transition that risk replicating the harmful patterns of fossil fuel extraction and, instead, advocate for transformative policies that ensure human rights and gender equality as central to building climate-resilient societies rooted in dignity, justice and planetary well-being.

What's next?

We will continue to challenge approaches that treat energy transition as merely a technical shift, instead positioning it as an opportunity to reimagine economies and societies rooted in dignity for all, with particular attention to communities in the Global South who have contributed least to the climate emergency yet are most exposed to its worst effects.

We will connect community-level evidence and the lived experiences of those on the frontlines of extractive policies to national reform and global norm-setting, breaking down silos between human rights, gender, and climate movements, and advancing a shared vision that recognises just transitions as not only fundamental to achieving climate-resilient and sustainable societies, but as transformative pathways that advance social and gender equality, redistribute power and resources equitably, and ensure that energy systems serve the public good rather than profit.

We will mainstream rights-based and genderjust transition priorities in key multilateral spaces (particularly, within the Just Transition Work Programme and the to-be-developed Just Transition Mechanism, within the UNFCCC) to guarantee that just transitions are advanced at all levels.

We will also translate our work, through strategic advocacy, into at least two concrete policy wins, whether promoted, adopted, implemented, or scaled, in priority countries (Argentina, Brazil, Chile, Mexico, Colombia, South Africa, or Kenya), ensuring these policies align with human rights standards, centre gender equality, and reflect the needs and views of affected communities.

We will build momentum for the progressive recognition of the right to sustainable energy to shift dominant narratives away from purely extractive solutions that sideline gendered impacts, community participation, and Global South perspectives.

Economic Justice and Climate Finance

Our work has transformed the global discussion on fiscal policy in a more just, emancipatory and sustainable direction. Our approach has combined both high-level, expert contributions within decisionmaking circles, with bold, impactful work on narrative change with the general public.

We have been instrumental in the inclusion of human rights as a guiding principle of the future United Nations Framework Convention on International Tax Cooperation, a multilateral instrument with the potential of raising approx. USD 492 billion per year in public revenues currently foregone to global tax abuse. In the process leading to the ‘Compromiso de Sevilla’ decided at FfD4, we proposed and succeeded in creating a specific human rights workstream within the Civil Society Financing for Development Mechanism, which was critical to ensure that explicit commitments on the matter were included in the negotiating outcome. In a context of cutbacks in multilateral institutions, we have amplified the capacities of technical experts, providing rigorous technical support and leveraging our influence to ensure the enactments of groundbreaking standard-setting instruments, such as the 2025 UN Committee on Economic, Social and Cultural Rights Statement on Fiscal Policy and Human Rights, and the first ex oficio hearing on the Inter-American Commission of Human Rights on Fiscal and Economic Policies to Address Poverty and Structural Inequality, leading to an upcoming thematic resolution on the matter. We have also bridged the silos between multilateral tax discussions and climate finance debates, promoting ambitious financing commitments to increase international and domestic resource mobilisation during COP 28, 29 and 30.

At the regional level, our engagement with fiscal cooperation platforms such as the Platform for Fiscal Cooperation of Latin America and the Caribbean (PTLAC), where we are member of its Civil Society Consultative Council, and the African Anti-IFFs Policy Tracker, for which we participated in the pilot mission in Ivory Coast together with Tax Justice Network Africa (TJNA), have been critical in cementing a growing engagement between tax administrations and ministries of finance with international legal experts, exploring actionable and transformative initiatives, such as the taxation of high-net-worth individuals, beneficial ownership registries and corporate countryby-country reports, to be implemented at the international level.

At the local level, our interventions in fiscal reform debates in Chile, Brazil, Colombia and Nigeria have contributed to shaping legislative outcomes in a more progressive, rights-compliant direction.

As for our leadership in narrative change, we have a measurable track record in delivering tailored, innovative campaigns which have decisively expanded economic justice constituencies by appealing to a broader tent. In Latin America and the Caribbean, we created the ‘Date Cuenta’ campaign, coordinating over 40 organisations across civil society to deliver plain language, innovative messaging connecting progressive fiscal reforms to the financing of health, education and social protection. ‘Date Cuenta’ generated over 55 original campaign messages that were tailored to the realities of seven priority countries (Argentina, Chile, Colombia, Mexico, Paraguay, Peru and Honduras) and disseminated in Spanish, Portuguese and English. In doing so, we convened more than 65 online co-creation workshops with partners, coordinating a unified communications strategy which combined digital outreach, press and media coverage, and collaboration with influencers. Ultimately, ‘Date Cuenta’ resulted in more than 60,000 interactions on social media, coverage in major regional and international media outlets, including El País, Deutsche Welle, Bloomberg and France 24, and the participation of at least 63 social media influencers through 58 dedicated publications. In collaboration with Fundación Gabo and the Friedrich Ebert Stiftung, we also organised a two-day workshop in Bogota with 20 journalists from 13 countries, building a regional network trained in a human rights-based approach to fiscal policy that has since generated published media coverage on outlets such as La Diaria, Ciper, El Diario Ar and Milenio. Through ‘Date Cuenta’ and our regional advocacy, we strengthened civil society engagement in key processes, including the Financing for Development track and FfD4, co-organised highlevel dialogues with states and civil society from Latin America and Africa.

What's next?

We will shape the UN Tax Convention and its Protocols so they embed human rights principles, and we will stay engaged through follow-up processes (including the expected Conference of the Parties) to support effective implementation. We will keep linking tax and climate finance so that new resources mobilised through fiscal cooperation are channelled to adaptation, mitigation, and loss and damage, in line with UNFCCC commitments.

Public Services for Care Societies

We have translated participatory research into accountability and policy outcomes.

In Ivory Coast, our work with Mouvement Ivoirien des Droits Humains and affected communities since 2023 exposed how privatisation and lack of accountability restrict access to quality healthcare. It contributed to the closure of 1,022 illegal private health centres, an executive instrument strengthening the regulation of private hospitals across the country, and the creation of a permanent complaints management committee in healthcare through a bylaw issued by the prefect of Gagnoa. Partners engaged through this process also advanced concrete improvements at facility level: members of the Gagnoa Midwives Association who took part in the participatory action research pooled resources to renovate the neonatal unit of the Regional Hospital, and the Director of the Gagnoa General Hospital launched an action plan to expand services and improve patient reception, with the facility receiving the award for best hospital in the country in 2025.

In Kenya, our research with the Mathare Education Taskforce documented the absence of public schools and the expansion of private provision, evidencing impacts on households and caregivers and strengthening demands for free, quality public education. This work contributed to stronger community agency and collective organisation, alongside ongoing strategies ranging from communications to litigation to secure a public school in the area, some involving GI-ESCR and others led independently.

Across Africa, this work is complemented by a multi-country study examining the human rights implications of austerity in education and health, including how regressive fiscal policies, rising debt burdens and persistent underinvestment undermine the financing and delivery of public services.

In Latin America, from 29 November to 2 December 2021, over a thousand representatives from over one hundred countries, from grassroots movements, advocacy, human rights, and development organisations, feminist movements, trade unions, and other civil society organisations, met in Santiago, Chile, and virtually, to discuss the critical role of public services for our future. Following the meeting, the Santiago Declaration on Public Services was adopted to demand universal access to quality, gender-transformative and equitable public services as the foundation of a fair and just society.

We are currently advancing work on care systems, linking public services and fiscal justice through integrated research, advocacy and communications, including a regional campaign framing care as a collective responsibility requiring sustained public investment.

What's next?

In Ivory Coast, we will evaluate and strengthen the complaints management committee and position it as a replicable model for other health facilities. In Kenya, we will support the Mathare community to co-design a model public school for Mabatini and Ngei wards, grounded in human rights standards. Building on our multi-country austerity study, we will drive national advocacy on financing for education and health: advancing reforms in Ghana; launching a fiscal policy and public services financing agenda in Kenya through the CESCR process and targeted coalition work; and, in Nigeria, using the new tax acts in force since 1 January 2026 to catalyse a national accountability campaign for adequately funded, quality public services. In Latin America, we will amplify locally led care pilots across 8 countries and turn lessons into influence—advancing care policies that strengthen care organisations, protect care workers’ rights, support unpaid caregivers, include disability and family networks, and redistribute care more equitably.