INTERNATIONAL HUMAN RIGHTS

ASSIGNMENT
ON
INTERNATIONAL COVENANTS ON ECONOMIC,
SOCIAL & CULTURAL RIGHTS, 1996

SUBMITTED BY – SANDEEP KUMAR SUBMITTED TO – PROF. POOJA AGRAWAT

REG. NO – 11900043

LLB (2nd) YEAR

SUBJECT – INTERNATIOAN COVENANTS ON ECONOMIC, SOCIAL & CULTURAL RIGHTS

(LAW442)
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INDEX :-

1 INTRODUCTION

2 INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL

3 CORE PROVISION OF THE COVENANT

4 CONCLUSION

5 REFERENCE

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 1. INTRODUCTION :-

“All human rights are universal, indivisible and interdependent and interrelated.”

Even before the adoption of the Universal Declaration on Human Rights (a non-legally binding
document) in 1948, broad agreement existed that the rights which were to be enshrined in the
Declaration were to be transformed into legally binding obligations through the negotiation of
one or more treaties. In 1966, two separate treaties, covering almost entirely all the rights
enshrined in the Universal Declaration of Human Rights were adopted after approximately 20
years of negotiations: one for civil and political rights, the International Covenant on Civil and
Political Rights (ICCPR), and one for economic, social and cultural rights, The International
Covenant on Economic, Social and Cultural Rights (ICESCR). The ICESCR was adopted by the
United Nations General Assembly on 16 December 1966 and entered into force on 3 January
19761.

It commits its parties to work toward the granting of economic, social, and cultural rights
(ESCR) to the Non-Self-Governing and Trust Territories and individuals, including labour rights
and the right to health, the right to education, and the right to an adequate standard of living. As
of 2020, the Covenant had 170 parties and total 71 signatories till now. A further seven
countries, including the United States of America, had signed but not yet ratified the Covenant.

The ICESCR is part of the Declaration on the Granting of Independence to Colonial Countries
and Peoples, International Bill of Human Rights, along with the Universal Declaration of Human
Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), including
the latter's first and second Optional Protocols. The Covenant is monitored by the UN Committee
on Economic, Social and Cultural Rights2.

02) The International Covenant on Economic, Social and Cultural Rights: The Covenant
in General.

1
DR. S. K KAPOOR , INTERNATIONAL LAW & HUMAN RIGHTS , (5TH EDITION ,2016), Central Law Agency ,
ALLAHABAD
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H O AGGARWAL , INTERNATIONAL LAW & HUMAN RIGHTS , (22nd EDITION ,2017), Central Law Agency ,
ALLAHABAD
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The covenant has a Preamble and 31 articles, divided into five parts. The Preamble serves as an
introduction to the Articles which follow by putting them in the HR’s perspective developed
under the UN Charter and further elaborated in the Declaration.

The ICESCR aims to ensure the protection of economic, social and cultural rights including: the
right to self-determination of all peoples (Article 1) - The right to non-discrimination based on
race, colour, sex, language, religion, political or other opinion, national or social origin, property,
birth or other status.

Part II of the Covenant consists of Articles 2-5.

(Article 2) -Spells out the obligation which a State party assumes by ratifying this covenant3. The
Article runs: “Each State party to the present Covenant undertakes to take steps, individually and
through international assistance and cooperation, especially economic and technical, to the
maximum of its available resources with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate means, including particularly the
adoption of legislative measures.” (Article 3)- Reaffirms the principle of equality of men and
women to the enjoyment of the rights recognized in the Covenant.(Article 4) empowers the
States to impose limitations on the enjoyment of these rights provided the limitations are
compatible with the nature of these rights and solely for the purpose of promoting the general
welfare in a democratic society.(Article 5) is the “saving clause” which is provided to prevent the
destruction or limitation of the rights recognized in other Articles and to safeguard rights
recognized independently of the Covenant.

Part III of the Covenant ,Articles 6 to 15 contains the right to work .(Articles 6–7) the right to
form and join trade unions (Article 8), the right to social security(Article 9), protection and
assistance to the family (Article 10), the right to an adequate standard of living (Article 11), the
right to health (Article 12), the right to education (Articles 13–14), and the right to cultural
freedoms (Article 15).

Following Article 4, States parties may, in certain circumstances, limit some rights enshrined in
the Covenant. However, such limitations must be determined by law, compatible with the nature

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of the rights included in the Convention and imposed to promote the general welfare in a
democratic society. Moreover, in keeping with Article 2(1), States parties are obliged to
undertake steps, in accordance with the maximum of their available resources, to progressively
achieve the full realization of the rights contained in the ICESCR .However, the Committee on
Economic, Social and International Covenant on Economic, Social and Cultural Rights4.

Part IV of the Covenant consists of Articles 16 to 25.Article 16-23 provide measures for
implementing the Covenant’s provisions. The Articles provided for “Working group” of
governmental experts to monitor State’s compliance. However in 1985 this mechanism was
replaced when the Committee on Economic, Social & Cultural Rights was created as a treaty
body by the UN To supervise State’s compliance with the covenant .Unlike the Committees
under the convention, whose members are elected by the State parties to the conventions,
Members of this committee are elected by the ECOSOC. State’s parties submit to the committee
their periodic reports on the measures adopted and progress made in achieving the observance of
the rights contained in the Covenant. The Committee transmits these reports along with its
suggestions and recommendations on them to the General Assembly through ECOSOC for
necessary action. The Covenant does not establish any interstate or individual complaint system.

Part V, containing Articles 26-31, deals with the ratification of and accession to the Covenant by
the States .At present, there are 142 State parties to this Covenant. India acceded to this on 10th
April 1979.

The Covenant follows the structure of the UDHR and ICCPR, with a preamble and thirty-one
articles, divided into five parts.

Part 1 (Article 1) recognizes the right of all peoples to self-determination, including the right to
"freely determine their political status", pursue their economic, social and cultural goals, and
manage and dispose of their own resources. It recognizes a negative right of a people not to be
deprived of its means of subsistence, and imposes an obligation on those parties still responsible
for non-self governing and trust territories (colonies) to encourage and respect their self-
determination.

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Part 2 (Articles 2–5) establishes the principle of "progressive realization. It also requires the
rights be recognized "without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status". The
rights can only be limited by law, in a manner compatible with the nature of the rights, and only
for the purpose of "promoting the general welfare in a democratic society".

Part 3 (Articles 6 – 15) lists the rights themselves. These include rights to work5, under "just and
favorable conditions", with the right to form and join trade unions (Articles 6, 7, and 8), social
security, including social insurance (Article 9), family life, including paid parental leave and the
protection of children (Article 10),an adequate standard of living, including adequate food,
clothing and housing, and the "continuous improvement of living conditions" (Article 11),
health, specifically "the highest attainable standard of physical and mental health" (Article 12),
education, including free universal primary education, generally available secondary education
and equally accessible higher education. This should be directed to "the full development of the
human personality and the sense of its dignity", and enable all persons to participate effectively
in society (Articles 13 and 14), participation in cultural life (Article 15). Many of these rights
include specific actions which must be undertaken to realize them.

Part 4 (Articles 16 – 25) governs reporting and monitoring of the Covenant and the steps taken
by the parties to implement it. It also allows the monitoring body – originally the United Nations
Economic and Social Council – now the Committee on Economic, Social and Cultural Rights –
see below – to make general recommendations to the UN General Assembly on appropriate
measures to realize the rights (Article 21).

Part 5 (Articles 26 – 31) governs ratification, entry into force, and amendment of the Covenant.

03) CORE PROVISIONS OF COVENANT

➢ “Principle of progressive realization” Article 2 of the Covenant imposes a duty on all

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 known as the principle of "progressive realization". It acknowledges that some of the
rights (for example, the right to health) may be difficult in practice to achieve in a short
period of time, and that states may be subject to resource constraints, but requires them to
act as best they can within their means.

The requirement to "take steps" imposes a continuing obligation to work towards the
realization of the rights. It also rules out deliberately regressive measures which impede that
goal. The Committee on Economic, Social and Cultural Rights also interprets the principle as
imposing minimum core obligations to provide, at the least, minimum essential levels of each
of the rights. If resources are highly constrained, this should include the use of targeted
programmes aimed at the vulnerable. The Committee on Economic, Social and Cultural
Rights regards legislation as an indispensable means for realizing the rights which is unlikely
to be limited by resource constraints. The enacting of anti-discrimination provisions and the
establishment of enforceable rights with judicial remedies within national legal systems are
considered to be appropriate means. ‘Free’ means that no child shall be liable to pay any kind
of fee or charges or expenses which may prevent him or her from pursuing and completing
elementary education.

➢ Labour Rights6 - Article 6 of the Covenant recognizes the right to work, defined as the
opportunity of everyone to gain their living by freely chosen or accepted work. Parties
are required to take "appropriate steps" to safeguard this right, including technical and
vocational training and economic policies aimed at steady economic development and
ultimately full employment. The right implies parties must guarantee equal access to
employment and protect workers from being unfairly deprived of employment. They
must prevent discrimination in the workplace and ensure access for the disadvantaged.
The fact that work must be freely chosen or accepted means parties must prohibit forced
or child labor .The work referred to in Article 6 must be decent work. This is effectively
defined by Article 7 of the Covenant, which recognizes the right of everyone to "just and
favorable" working conditions. These are in turn defined as fair wages with equal pay for
equal work, sufficient to provide a decent living for workers and their dependants; safe

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 working conditions; equal opportunity in the workplace; and sufficient rest and leisure,
including limited working hours and regular, paid holidays.

Article 8 recognizes the right of workers to form or join trade unions and protects the right to
strike. It allows these rights to be restricted for members of the armed forces, police, or
government administrators. Several parties have placed reservations on this clause, allowing
it to be interpreted in a manner consistent with their constitutions (For Ex -China, Mexico),
or extending the restriction of union rights to groups such as firefighters (For Ex - Japan)

➢ Right to Social Security7: Article 9 of the Covenant recognizes "the right of everyone to
social security, including social insurance". It requires parties to provide some form of
social insurance scheme to protect people against the risks of sickness, disability,
maternity, employment injury, unemployment or old age; to provide for survivors,
orphans, and those who cannot afford health care; and to ensure that families are
adequately supported. Benefits from such a scheme must be adequate, accessible to all,
and provided without discrimination. The Covenant does not restrict the form of the
scheme, and both contributory and non-contributory schemes are permissible (as are
community-based and mutual schemes). The act prohibits physical punishment or mental
harassment, screening procedures for admission of children, capitation fees. It also
prohibits children from being held back in class, or expelled, until the completion of
elementary education.

Problems with implementation: Several parties, including France and Monaco, have
reservations allowing them to set residence requirements in order to qualify for social
benefits. The Committee on Economic, Social and Cultural Rights permits such restrictions,
provided they are proportionate and reasonable.

➢ Right to Family Life: Article 10 of the Covenant recognizes the family as "the natural
and fundamental group unit of society", and requires parties to accord it "the widest
possible protection and assistance". Parties must ensure that their citizens are free to
establish families and that marriage are freely contracted and not forced. Parties must also
provide paid leave or adequate social security to mothers before and after childbirth, an

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 obligation which overlaps with that of Article 9. Finally, parties must take "special
measures" to protect children from economic or social exploitation, including setting a
minimum age of employment and barring children from dangerous and harmful
occupations.
➢ Right to Adequate Standard of Living: Article 11 recognizes the right of everyone to
an adequate standard of living. This includes, but is not limited to, the right to adequate
food, clothing, housing, and "the continuous improvement of living conditions". It also
creates an obligation on parties to work together to eliminate world hunger. The right to
adequate food, also referred to as the right to food, is interpreted as requiring "the
availability of food in a quantity and quality sufficient to satisfy the dietary needs of
individuals, free from adverse substances, and acceptable within a given culture". This
must be accessible to all, implying an obligation to provide special programmes for the
vulnerable. This must also ensure an equitable distribution of world food supplies in
relation to need, taking into account the problems of food-importing and food-exporting
countries. The right to adequate food also implies a right to water. The right to adequate
housing, also referred to as the right to housing, is "the right to live somewhere in
security, peace and dignity". It requires "adequate privacy, adequate space, adequate
security, adequate lighting and ventilation, adequate basic infrastructure and adequate
location with regard to work and basic facilities – all at a reasonable cost". Parties must
ensure security of tenure and that access is free of discrimination , and progressively
work to eliminate homelessness8.

Forced evictions, defined as "the permanent or temporary removal against their will of
individuals, families and/or communities from the homes and/or land which they occupy,
without the provision of, and access to, appropriate forms of legal or other protection", are a
prima facie violation of the Covenant. The right to adequate clothing, also referred to as the
right to clothing, has not been authoritatively defined and has received little in the way of
academic commentary or international discussion. What is considered "adequate" has only
been discussed in specific contexts, such as refugees, the disabled, the elderly, or workers .

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 ➢ Right to Health: Article 12 of the Covenant recognizes the right of everyone to "the
enjoyment of the highest attainable standard of physical and mental health"."Health" is
understood not just as a right to be healthy, but as a right to control one’s own health and
body (including reproduction), and be free from interference such as torture or medical
experimentation. States must protect this right by ensuring that everyone within their
jurisdiction has access to the underlying determinants of health, such as clean water,
sanitation, food, nutrition and housing, and through a comprehensive system of
healthcare, which is available to everyone without discrimination, and economically
accessible to all9.

Article 12.2 requires parties to take specific steps to improve the health of their citizens,
including reducing infant mortality and improving child health, improving environmental and
workplace health, preventing, controlling and treating epidemic diseases, and creating
conditions to ensure equal and timely access to medical services for all. These are considered
to be "illustrative, non-exhaustive examples", rather than a complete statement of parties'
obligations. The right to health is interpreted as requiring parties to respect women's'
reproductive rights, by not limiting access to contraception or "censoring, withholding or
intentionally misrepresenting" information about sexual health. They must also ensure that
women are protected from harmful traditional practices such as female genital mutilation.
Right to health is inclusive right extending not only to timely and appropriate health care but
also to the underlying determinants of health, such as access to safe and potable water and
adequate sanitation, an adequate supply of safe food, nutrition and housing, healthy
occupational and environmental conditions.

➢ Right to free education: Article 13 of the Covenant recognizes the right of everyone to
free education (free for the primary level and "the progressive introduction of free
education" for the secondary and higher levels). This is to be directed towards "the full
development of the human personality and the sense of its dignity", and enable all
persons to participate effectively in society. Education is seen both as a human right and
as "an indispensable means of realizing other human rights", and so this is one of the
longest and most important articles of the Covenant.

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Article 13.2 lists a number of specific steps parties are required to pursue to realize the right
of education. These include the provision of free, universal and compulsory primary
education, "generally available and accessible" secondary education in various forms
(including technical and vocational training), and equally accessible higher education. All of
these must be available to all without discrimination. Parties must also develop a school
system (though it may be public, private, or mixed), encourage or provide scholarships for
disadvantaged groups. Parties are required to make education free at all levels, either
immediately or progressively, "primary education shall be compulsory and available free to
all", secondary education "shall be made generally available and accessible to all by every
appropriate means, and in particular by the progressive introduction of free education", and
"higher education shall be made equally accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the progressive introduction of free education".

Articles 13.3 and 13.4 require parties to respect the educational freedom of parents by
allowing them to choose and establish private educational institutions for their children, also
referred to as freedom of education. It also recognizes the right of parents to "ensure the
religious and moral education of their children in conformity with their own convictions".
This is interpreted as requiring public schools to respect the freedom of religion and
conscience of their students, and as forbidding instruction in a particular religion or belief
system unless non-discriminatory exemptions and alternatives are available. The Committee
on Economic, Social and Cultural Rights interpret the Covenant as also requiring states to
respect the academic freedom of staff and students, as this is vital for the educational process
.It also considers corporal punishment in schools to be inconsistent with the Covenant's
underlying principle of the dignity of the individual.

Article 14 of the Covenant requires those parties which have not yet established a system of
free compulsory primary education, to rapidly adopt a detailed plan of action for its
introduction "within a reasonable number of years".

➢ Right to participation in cultural life: Article 15 of the Covenant recognizes the right
of everyone to participate in cultural life, enjoy the benefits of scientific progress, and to
benefit from the protection of the moral and material rights to any scientific discovery or

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 artistic work they have created. The latter clause is sometimes seen as requiring the
protection of intellectual property, but the Committee on Economic, Social and Cultural
Rights interprets it as primarily protecting the moral rights of authors and "proclaiming
the intrinsically personal character of every creation of the human mind and the ensuing
durable link between creators and their creations". It thus requires parties to respect the
right of authors to be recognized as the creator of a work. The material rights are
interpreted as being part of the right to an adequate standard of living, and "need not
extend over the entire lifespan of an author." Parties must also work to promote the
conservation, development and diffusion of science and culture, "respect the freedom
indispensable for scientific research and creative activity", and encourage international
contacts and cooperation in these fields10.
➢ The System of International Control: For the implementation of the Covenant on
Economic, Social and Cultural Rights ,Article 16-25 provide for a system of periodic
reports by States detailing the measures adopted and the progress made in achieving the
observance of the rights concerned. The scheme as laid down provided for these reports
to be considered by the Economic and Social Council (ECOSOC), which was then itself
to follow a complex procedure involving consultations and reporting to other organs. It
is therefore clear that the Economic and Social Council is ostensibly the keystone in the
system of implementation of this Covenant.
1) The principle that the organ responsible for supervision should be independent which is
respected in other Covenants was jettisoned here, since ECOSOC consists of
representatives of governments and not individuals acting in a personal capacity.
2) The tasks conferred on ECOSOC by the Covenant are very extensive and the amount of
paperwork for analyzing reports from more than 100 governments consulting the
Commission on Human Rights and appropriate Specialized Agencies making and
transmitting general recommendations to governments and obtaining their comments and
finally reporting all this to General Assembly would be formidable.

This lead to various issues of whether it could be effectively implemented as the organ of
implementation of the Covenant . Therefore to make it more effective the solution adopted was

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to establish a Sessional Working Group for reconciling supervisory functions of the ECOSOC,
which was formally set up in 1978 consisted of 15 members of the Council who were also States
parties to the Covenant. However it was not a success since it led to controversy over its role that
was only confined to descriptive without any recommendations or conclusions. In 1985
ECOSOC recognizing the inadequacy of the Working Group procedure decided to take a fresh
start. The new body known as The United Nations Committee on Economic, Social and Cultural
Rights held its first session in March 1987.

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04) CONCLUSION

Economic globalization does have an impact on the protection of human rights. It simultaneously
creates opportunities and presents challenges for the international legal protection of human
rights. While there are understandable concerns about both economic globalization and the
international legal protection of human rights in terms of their philosophical bases, both are part
of the process of globalization in which political, economic, social, civil, and cultural
relationships are not restricted to territorial boundaries and are not solely within the control of
any one state. As a result, globalization and the international legal order are opportunities to end
the absolute sovereignty of the state and hence, to further the realization that how a state deals
with those within its territory is no longer a matter exclusively within the domestic jurisdiction of
a state. It is now a matter of legitimate international concern. In fact, no modern state can now
turn back the rising tide of expectations among the dispossessed within its boundaries, nor
demands for free movement and expression for these are externally triggered, not necessarily by
deliberate pressure but simply by communications and involuntary example.”

Nevertheless, international human rights law, caught within its frame-work of state responsibility
for human rights violations, is unable to deal fully with the changes to state sovereignty
accelerated by the process of globalization. Where the violator of human rights law is not a state
or its agent but is, for example, a globalized economic institution or a transnational corporation,
international human rights law finds it difficult to provide any redress to the victim. In such
cases, international human rights law focuses on the responsibility of a state to adopt
constitutional, legislative, judicial, administrative, and other measures to ensure that human
rights within its territory are protected, no matter who the perpetrator may be. However, this
approach tends to be ineffective where a state is unwilling or unable to take these measures due
to the possible effect on investment by globalized economic institutions. Therefore, international
human rights law needs to take the opportunities presented by globalization to develop a more
flexible framework within which responsibility for human rights violations is not state-based;
states must provide appropriate mechanisms for all individuals, groups, and others to have
standing to bring claims for any violation of human rights.”

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05) REFERNCE :-

1. DR. S. K KAPOOR , INTERNATIONAL LAW & HUMAN RIGHTS , (5TH EDITION ,2016), Central
Law Agency , ALLAHABAD
2. H O AGGARWAL, INTERNATIONAL LAW & HUMAN RIGHTS , (22nd EDITION ,2017),
Central Law Agency , ALLAHABAD
3. http://hrlibrary.umn.edu/edumat/hreduseries/tb1b/Section3/covenant.html
4. http://www.humanrights.com/what-are-human-rights/international-human-rights-law-
continued.html
5. https://www.ohchr.org/Documents/ProfessionalInterest/cescr.pdf
6. https://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en
7. https://www.coe.int/en/web/compass/international-covenant-on-economic-social-and-
cultural-rights
8. https://www.escr-net.org/resources/section-5-background-information-icescr
9. https://www.youtube.com/watch?v=17qGhkEieuE
10. https://www.britannica.com/topic/human-rights/The-Universal-Declaration-of-Human-
Rights#ref61557

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