ESC Rights and Non-Discrimination in Migration Context

Migration and Economic, Social and Cultural Rights International Commission of Jurists

ESC and CP rights A conventional distinction: history UDHR ICCPR ICESCR More similar than different: the encounter of ESC and CP rights in practice The right to education The right to life and human dignity and several ESC rights

ESC Rights: what obligations? Categories (1) Duty to respect State not to intervene unduly in the enjoyment of a particular right Duty to protect State must prevent undue rights interference by third parties Duty to fulfil State must facilitate, provide or promote access to ESC rights

What must the State do? Obligation to take steps to the maximum of the resources available (A2.1 ICESCR) Immediate effect and progressive realisation Minimum essential levels of ESC rights Prohibition of retrogressive measures Non-discrimination (see, next)

Non-discrimination Immediate effect Discrimination on grounds of status: refugee, irregular migrant, asylum-seeker Discrimination based on nationality Article 2.2. ICESCR CRC Minimalist approach: the European Committee of Social Rights

Substantive discrimination GC 20: Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination. GC20: In order to eliminate substantive discrimination, States parties may be, and in some cases are, under an obligation to adopt special measures to attenuate or suppress conditions that perpetuate discrimination. Such measures are legitimate to the extent that they represent reasonable, objective and proportional means to redress de facto discrimination and are discontinued when substantive equality has been sustainably achieved. Such positive measures may exceptionally, however, need to be of a permanent nature, such as interpretation services for linguistic minorities and reasonable accommodation of persons with sensory impairments in accessing health-care facilities.

Remedies and courts Justiciability of ESC rights: more reality than utopia Partly or wholly justiciable? Courts or administrative authorities? Remedies and reparation in different courts: administrative, civil (services by private entities), and criminal Reparation: restitution, compensation, satisfaction, non-repetition, cessation and rehabilitation What is undoubtedly justiciable Non-discrimination, minimum core, retrogressive measures, immediate obligations, realised progressions

Examples by courts In Comisi n Municipal de la Vivienda c. Saavedra, et al., the Buenos Aires Supreme Court held that automatic evictions constituted a failure to respect the right to adequate housing. The Court specifically cited CESCR General Comments. In SERAC and CESR v. Nigeria, the African Commission on Human and Peoples Rights defined the duty to respect and held that the government failed to respect the rights to health and a healthy environment when it destroyed villages and homes.

Examples by courts Duty to Protect In Ituango Massacres v. Colombia, the Inter- American Court of Human Rights held that the government failed to protect its citizens rights to life, property, residence and others when it failed to prevent a massacre. In Etcheverry v. Omint, the Argentine Supreme Court stepped in to protect the right to health of a man whose health insurance company terminated his coverage when he tested positive for HIV

Examples by courts Duty to Fulfill In Oberti v. Board of Education, the United States 3rd Circuit Court of Appeals implicitly read a duty to fulfill into the Individuals with Disabilities Education Act, finding that school districts must work to include children with disabilities in regular education, only resorting to special education after all other efforts have failed. In People s Union for Civil Liberties v. Union of India, the Supreme Court of India found that the government s failure to implement existing anti- famine measures while citizens starved amounted to a violation of the right to food.

The Right to an Adequate Standard of Living Article 11 ICESCR A right composed by rights: right to water, right to clothing, right to food, right to housing. Open door for further developments Adequate standard of living v. Destitute conditions of living: the relationship with the right to life and MSS v. Belgium and Greece

The right to water Relation with right to life and human dignity Availability Accessibility Quality Non-discrimination Remedy

The right to food Right to be free from hunger: minimal rights of immediate application. Link with human dignity Availability Accessibility Quantity and quality Non-discrimination Remedy

The right to adequate housing The right to adequate housing and the right to home: ESCR and CPR, differences and similarities What aspects of the right to housing are judicially enforceable? Right to housing and cruel, inhuman or degrading treatment under CAT

The right to the highest attainable standard of health Right of access to health facilities, goods and services Nutritional food, adequate and safe. Freedom from hunger Shelter, housing and sanitation Adequate supply of safe and potable water Providing essential drugs Equitable distribution National public health strategy Reproductive, maternal and child care Immunisation and prevention, control and treatment of diseases Education and information

The Right to Education An ESC and CP right Immediate effect: Free and compulsory primary education Liberty of parents on education choice Non-discrimination in access to education Free secondary education: progressive obligation subject to non-discrimination and prohibition of retrogressive measures

Children rights Sources in UN Treaties: UN Convention on the Right of the Child (30 years almost universal ratification) - Optional Protocols to CRC - Article 24 ICCPR - Article 7 CRPD

Children rights What is a child? The importance of age assessement and the principle of the benefit of the doubt Basic principles Non-discriminaton Best interest of the child Right to life, survival and development Right to participate and to be heard

Best Interest Convention on the Rights of the Child Article 3 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Right to be heard Convention on the Rights of the Child Article 12 1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Right to family life Sources: Article 16.3 UDHR Articles 17 and 23 ICCPR Articles 9, 10 and 22 CRC Right to enjoy family life in the State of destination (expulsion) Right to family reunification

Workplace rights Prohibitions of slavery, servitude and forced labour (Article 8 ICCPR) C029 - Forced Labour Convention, 1930 (No. 29) Rights on the workplace (articles 7 and 8 ICESCR): Fair remunaration and decent living Safe and healthy working conditions Equal opportunities Rest, leisure, working hours, holidays Non-discriminaton on race (Article 5, ICERD)

Workplace rights and women Article 11 eliminate discrimination against women in the field of employment in order to ensure, on a basis of equality of men and women, the same rights, in particular: (a) The right to work as an inalienable right of all human beings; (b) The right to the same employment opportunities, including the application of the same criteria for selection in matters of employment; (c) The right to free choice of profession and employment, the right to promotion, job security and all benefits and conditions of service and the right to receive vocational training and retraining, including apprenticeships, advanced vocational training and recurrent training; (d) The right to equal remuneration, including benefits, and to equal treatment in respect of work of equal value, as well as equality of treatment in the evaluation of the quality of work; (e) The right to social security, particularly in cases of retirement, unemployment, sickness, invalidity and old age and other incapacity to work, as well as the right to paid leave; (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

Workplace rights and women (continues) 2. In order to prevent discrimination against women on the grounds of marriage or maternity and to ensure their effective right to work, States Parties shall take appropriate measures: (a) To prohibit, subject to the imposition of sanctions, dismissal on the grounds of pregnancy or of maternity leave and discrimination in dismissals on the basis of marital status; (b) To introduce maternity leave with pay or with comparable social benefits without loss of former employment, seniority or social allowances; (c) To encourage the provision of the necessary supporting social services to enable parents to combine family obligations with work responsibilities and participation in public life, in particular through promoting the establishment and development of a network of child-care facilities; (d) To provide special protection to women during pregnancy in types of work proved to be harmful to them.

Child labour C138 - Minimum Age Convention, 1973 (No. 138) Article 1: Each Member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. Article 2.3: The minimum age shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years. Article 3.1. The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young persons shall not be less than 18 years.

Child labour C182 - Worst Forms of Child Labour Convention, 1999 (No. 182) Article 1: Each Member which ratifies this Convention shall take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. Article 2: For the purposes of this Convention, the term child shall apply to all persons under the age of 18. Article 3: For the purposes of this Convention, the term the worst forms of child labour comprises: (a) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.

Recapitulation ESC are no second class rights: more formal than substantial distinction with CP rights Non-discrimination generally applies to non- nationals Most of ESC compliance is capable of being asserted in court ESC rights are fundamental for respect of human dignity and the right to life. Intertwine between ESC and CP rights