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Second Session of the UN Committee on Economic, Social and Cultural Rights

Published online by Cambridge University Press:  27 February 2017

Philip Alston  and
Bruno Simma
Philip Alston
Affiliation:
Fletcher School of Law and Diplomacy, and Harvard Law School
Bruno Simma
Affiliation:
University of Munich and the University of Michigan
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Type
Current Developments
Information
American Journal of International Law , Volume 82 , Issue 3 , July 1988 , pp. 603 - 615
Copyright
Copyright © American Society of International Law 1988

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References

1 See generally Alston & Simma, , First Session of the UN Committee on Economic, Social and Cultural Rights, 81 AJIL 747 (1987)CrossRefGoogle Scholar.

2 The Committee was established pursuant to ESC Res. 1985/17. For its first report, see Committee on Economic, Social and Cultural Rights, Report on the First Session (9–27 March 1987), 1987 UN ESCOR Supp. (No. 17), UN Doc. E/1987/28.

3 GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966) [hereinafter Covenant].

4 Committee on Economic, Social and Cultural Rights, Report on the Second Session (8–26 February 1988), 1988 UN ESCOR Supp. (No. 4), UN Doc. E/1988/14, para. 1 [hereinafter Committee’s Second Report].

5 See Alston, , Out of the Abyss: The Challenges Confronting the New UN Committee on Economic, Social and Cultural Rights, 9 Hum. Rts. Q. 332 (1987)CrossRefGoogle Scholar.

6 Alston & Simma, supra note 1, at 749. Because members of the Committee are experts elected by the Economic and Social Council, and because there is no provision for the nomination of a replacement or alternate of the same nationality, the Soviet expert could only have been replaced by a special election of the Council. Since the resignation was not tendered in time for that to happen, the seat of the Soviet expert remained vacant throughout the session. An experienced Soviet diplomat did, however, follow all of the Committee’s meetings.

7 Thus, in December 1987, the General Assembly specifically invited the Committee, in considering its future work, to pay “particular attention to practices followed by other treaty bodies.” GA Res. 42/102, para. 5 (Dec. 7, 1987).

8 The Human Rights Committee was established in accordance with Article 28(1) of the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966). For reviews of its work, see Nowak, , The Effectiveness of the International Covenant on Civil and Political Rights: Stocktaking after the First Eleven Sessions of the UN Human Rights Committee, 1 Hum. Rts. L.J. 136 (1980)Google Scholar; Nowak, , UN Human Rights Committee: Survey of Decisions Given up till July 1984, 5 id. at 199 (1984)Google Scholar; and Nowak, , UN Human Rights Committee: Survey of Decisions Given up till July 1986, 7 id. at 287 (1986)Google Scholar.

9 The states parties whose reports were examined are Zaire (3 reports), Austria and Chile (2 reports each), and Bulgaria, the Byelorussian SSR, Denmark, Mongolia, Norway, Romania, Sweden and Yugoslavia.

10 Committee’s Second Report, supra note 4, para. 369.

11 For a description of the principles governing the work of the Human Rights Committee in the formulation of general comments, see Report of the Human Rights Committee, 39 UN GAOR Supp. (No. 40) at 106–09, UN Doc. A/39/40 (1984).

12 Particular criticism was directed at the Committee’s general comment 14(23), reproduced in Report of the Human Rights Committee, 40 UN GAOR Supp. (No. 40) at 162–63, UN Doc. A/40/40 (1985) (“the designing, testing, manufacture, possession and development of nuclear weapons are among the greatest threats to the right to life which confront mankind today”). For the Committee’s response to the criticism, see id. at 6, paras. 26–27.

13 At its sixth session, in 1987, CEDAW decided that the “suggestions and general recommendations” that it is empowered to make under Article 21 of the Convention on the Elimination of All Forms of Discrimination Against Women (GA Res. 34/180, 34 UN GAOR Supp. (No. 46) at 193, UN Doc. A / 3 4 / 4 6 (1979)) could, “in an appropriate case,” be “based on the examination of a report and information received from a State party.” This proposal was adopted despite the objections of several experts that recommendations should be addressed not to a single state party but “to all States parties in a general way.” See Report of the Committee on the Elimination of Discrimination Against Women, 42 UN GAOR Supp. (No. 38), paras. 57–60, UN Doc. A/42/38 (1987).

14 See text at notes 44–46 infra.

15 Committee’s Second Report, supra note 4, para. 370. The procedure draws upon that followed by the Human Rights Committee and by CEDAW.

16 Id., para. 365.

17 See generally Annotations on the Text of the Draft International Covenants on Human Rights: Prepared by the Secretary-General, UN Doc. A/2929, at 116–25 (1955) [hereinafter Annotations].

18 Committee’s Second Report, supra note 4, para. 368.

19 Id., para. 365. The logistical constraints are attributable to the need for the Secretariat and the rapporteur to draft a summary of the examination of each report, for the summary to be typed and translated, and for a review of each draft by the full Committee prior to adoption.

20 Id.

21 Eide, Report on the Right to Adequate Food as a Human Right, UN Doc. E/CN.4/Sub.2/1987/23.

22 E.g., Comm’n on Human Rights Res. 1987/22, 1987 UN ESCOR Supp. (No. 5) at 71, UN Doc. E/1987/18; and GA Res. 42/146 (Dec. 7, 1987).

23 Covenant, supra note 3, Art. 16(1).

24 Id., Art. 17(2).

25 This reporting program had been established by ESC Res. 1988 (LX), para. 1, 60 UN ESCOR Supp. (No. 1) at 11, UN Doc. E/5850 (1976).

26 ESC Decision 1985/132, 1985 UN ESCOR Supp. (No. 1) at 42, UN Doc. E/1985/85.

27 According to information provided to the Committee by the Centre for Human Rights, a total of 136 reports were overdue as of Feb. 8, 1988. Of 91 states parties, 63 have overdue reports. The statistical breakdown was as follows. Out of these 63 states, 56 have the initial reports overdue: 25 have all 3 reports overdue; 12 have 2 overdue; and 19 have 1 overdue. Out of these 63 states, 15 have their second periodic report overdue; 3 states have 2 overdue reports, and 12 have 1 overdue report. Committee’s Second Report, supra note 4, Ann. 1.

28 See generally Alston, supra note 5, at 362–67.

29 Committee’s Second Report, supra note 4, para. 351. Some concern was expressed by a few members that the requirement of a single 5–yearly report would not be in accordance with the provisions of Article 17(1) of the Covenant, which provides that states parties “shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council.” The travaux préparatoires of the Covenant make it clear, however, that this wording was not intended to restrict the Council’s discretion in any way. See Annotations, supra note 17, at 118.

30 Committee’s Second Report, supra note 4, para. 352.

31 Id.

32 UN Doc. E/C.12/1988/SR.15, para. 5.

33 UN Doc. E/C.12/1988/SR.19, para. 63.

34 See generally Commentary, Implementation of the International Covenant on Economic, Social and Cultural Rights: ECOSOC Working Group, ICJ Rev., No. 27, December 1981, at 26.

35 UN Doc. E/1981/WG.1/SR.7, paras. 11–34.

36 UN Docs. E/CN.12/1988/SR.12, paras. 36–64; and E/CN.12/1988/SR.13, paras. 1–48.

37 UN Docs. E/CN.12/1988/SR.16–19.

38 Committee’s Second Report, supra note 4, para. 361.

39 Id., para. 359.

40 Id., para. 360. This provision is modeled on the practice of CEDAW. See its 1987 report, supra note 13, para. 49.

41 In accordance with ESC Res. 1987/5, para. 13 (May 26, 1987).

42 E.g., UN Doc. E/C.12/1988/SR.13, para. 23. In 1987 the Committee became the first of the UN human rights treaty-monitoring bodies to be able to receive information from NGOs. The procedure was established by ESC Res. 1987/5, supra note 41, in para. 6 of which the Council invited

non-governmental organizations in co status with the Council to submit to it written statements that might contribute to full and universal recognition and realization of the rights contained in the International Covenant on Economic, Social and Cultural Rights, and requests the Secretary-General to make those statements available to the Committee in a timely manner.

43 E.g., UN Doc. E/C.12/1988/SR.13, para. 12.

44 Committee’s Second Report supra note 4, para. 364.

45 The Committee recognized this problem when it agreed to insert a paragraph to the following effect in its summary of its examination of Austria’s report:

In the course of the adoption of the present summary it was noted that there appears to be an imbalance in the extent and nature of the concluding observations made with respect to the report of Austria compared to those made with respect to the reports of some other States considered at this session. It was explained that this is attributable not to the particular details of the report of Austria and of its presentation but to the relative newness of the procedures adopted by the Committee in making concluding observations.

Id., para. 48.

46 “In concluding the consideration of the report, the Chairman thanked the representative of the State party for having co-operated with the Committee in a spirit of constructive dialogue and with the common objective of implementing the rights recognized in the Covenant.” Report on the First Session, supra note 2, paras. 35, 66, 85, 114, 149, 169, 220, 259 and 297.

47 See supra note 6. The USSR subsequently nominated Professor V. Kusnetzov for election to the Committee.

48 Mr. W. Neneman from Poland and Mr. V. Mrachkov from Bulgaria.

49 Remarks by a deputy of the Supreme Soviet, quoted in Izvestia, July 2, 1987, at 5, and cited in Quigley, , The New Soviet Law on Appeals: Glasnost’ in the Soviet Courts, 37 Int’l & Comp. L.Q. 172, 173 n.3 (1988)Google Scholar.

50 Law on the Procedure for Appealing in Court the Unlawful Actions of Officials that Infringe the Rights of Citizens, Vedomosti Verkhovnogo Soveta SSSR, No. 26, 1987, item 389, Art. 1. See Quigley, supra note 49, at 172.

51 Id. n.2(a).

52 In November 1987, the U.S. representative (Ms. Byrne) told the Third Committee of the General Assembly

that the United States would no longer adhere to the Declaration on Social Progress and Development. The Declaration had been adopted at a time when ideas about the role of Government in social development and in providing social welfare were very different. The United States had learned that Government, even in the richest countries, could not alone provide massive social welfare programmes on a scale such as that suggested in the Declaration. Individual needs varied so greatly that centralized social welfare schemes were often counterproductive to the effort to allow all individuals to become self-sufficient and independent. In the United States, the contribution of the private sector and of State and local Governments to social progress and development were an essential part of all effective social programmes.

UN Doc. A/C.3/42/SR.32, para. 1 (1987).

53 GA Res. 2542 (XXIV), 24 UN GAOR Supp. (No. 30) at 49, UN Doc. A/7630 (1969).

54 It is also worthy of note that the Committee’s status as a subsidiary organ of ECOSOC insulates it, to some extent, from the full force of the UN financial crisis, which has significantly affected the work of some of the other supervisory committees. See Gaer, , Financial Crisis at the UN, Hum. Rts. Internet Rep., No. 5/6, 1987, at 58 Google Scholar.