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Posts Tagged ‘socio-economic rights’

PILA Seminar: Using International Law: The European Social Charter and UN Treaty Bodies

Venue: Distillery Building, Church St, Dublin 7

Date: Friday, 7 May 2010             Time: 4 – 5.30 PM

 

Colm O’Cinneide is currently vice-president of the European Committee on Social Rights, which monitors state compliance with the European Social Charter. He is a reader in human rights law at University College London and a member of the Irish Bar. He was a member of the UK Task Force on the establishment of the new Commission for Equality and Human Rights.

Kate Fox is an Irish solicitor who has worked in the United Nations Office of the High Commissioner for Human Rights for over 10 years. She has provided substantive legal support to the independent monitoring bodies of the 4 treaties dealing with individual complaints against State parties: the International Covenant on Civil and Political Rights, the Convention on the Elimination of All Forms of Racial Discrimination, the Convention against Torture, and the Convention on the Elimination of All Forms of Discrimination against Women.

As places are limited, please confirm attendance to Jo Kenny t: (01) 8728048 or e: jo.kenny@flac.ie

 

CPD points are available for this event. PILA is a project of FLAC. Its objective is to promote and facilitate the use of law in the public interest for the advancement and protection of human rights and for the benefit of marginalised and disadvantaged people.

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Ecuador to Ratify OP-ICESCR

April 2, 2010 Leave a comment

The NGO Coalition for an Optional Protocol to the International Covenant of Economic, Social and Cultural Rights has circulated the following report:

On Tuesday, March 30, the National Assembly of Ecuador gave approval for ratification of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. It is the first country to do so … Once the Optional Protocol enters into force, it will allow groups and individuals whose economic, social and cultural rights have been violated to present a complaint before the United Nations and seek redress.

Article 18 OP-ICESCR provides that ten ratifications are needed for the Optional Protocol to enter into force.

So far, 32 states have signed the Optional Protocol, which was adopted unanimously by the UN General Assembly on 10 December 2008. A number of other countries are currently in the process of organising internal approval for ratification of the instrument. Ireland, unsurprisingly, is not one of these countries.

For more information on the International NGO Coalition for an OP-ICESCR and the global Campaign for Ratification and Implementation of the OP-ICESCR, see here

Kenny on Carson & Ors. v The United Kingdom

March 29, 2010 1 comment

We are delighted to welcome this guest contribution from Jo Kenny, Legal Officer at the Public Interest Law Alliance (PILA), a project of the Free Legal Advice Centres (FLAC). You can learn more about Jo on our guest contributors page.

On 16th March 2010 the Grand Chamber of the European Court of Human Rights delivered its judgment in Carson & Ors. –v- the United Kingdom (Application No.42184/05). This is the end of Mrs Carson’s long road in challenging UK state pension policy.

Mrs Carson emigrated to South Africa and subsequently retired there. She had previously worked in the UK and made full contributions to the UK state pension. Indeed she continued to make such contributions on leaving. However when her state pension came into payment, it was not index-linked – it was frozen and would not be uprated to reflect the effect of inflation. The UK does not index-link state pensions paid in South Africa. The question for the Grand Chamber was whether this policy unlawfully discriminated against Mrs Carson on the basis of her place of residence, in breach of Article 14 in conjunction with Article 1 Protocol 1. Read more…

The Proposed Constitutional Amendment on the Child: An Initial Analysis from a CRC Perspective

February 16, 2010 10 comments

After over 2 years, 62 meetings and numerous milestones highlighting the precarious position of children’s rights in Irish society including the publication of the Ryan and the Murphy reports, the Oireachtas Committee on the Constitutional Amendment on Children has at long last issued its third and final report.

The Committee’s terms of reference were to ‘consider and report to the Houses of the Oireachtas on the proposals set out in the Twenty-eighth Amendment of the Constitution Bill 2007.’ In her Foreword to the Report, the Committee Chairwoman, Mary O’Rourke, TD, stated that ‘since it began its work just over two years ago, the sole objective of the Committee has been to ensure the strongest protection of the rights of children and to further their best interests.’ The key question at this point is whether the Committee has, in fact, achieved this.

Having deliberated on the proposed Article 42(A).1–4 set out in Twenty-eighth Amendment to the Constitution Bill 2007, the Committee recommended ‘an alternative approach’. According to the Report:

The Committee proposes that the existing Article 42 of the Constitution is amended as set out in the following section.

Amendment of Article 42 of the Constitution
Article 42 of the Constitution is proposed to be amended as follows—
(a) existing sections 1 and 5 to be deleted,
(b) new sections 1 – 6 set out below to be inserted, and
(c) existing sections 2 – 4 to be rearranged and numbered as sections 7 – 8.

Children
Article 42
1. 1° The State shall cherish all the children of the State equally.
2° The State recognises and acknowledges the natural and imprescriptible rights of all children including their right to have their welfare regarded as a primary consideration and shall, as far as practicable, protect and vindicate those rights.
3° In the resolution of all disputes concerning the guardianship, adoption, custody, care or upbringing of a child, the welfare and best interests of the child shall be the first and paramount consideration.

2. The State guarantees in its laws to recognise and vindicate the rights of all children as individuals including:
i the right of the child to such protection and care as is necessary for his or her safety and welfare;
ii the right of the child to an education;
iii the right of the child’s voice to be heard in any judicial and administrative proceedings affecting the child, having regard to the child’s age and maturity.

3. The State acknowledges that the primary and natural carers, educators and protectors of the welfare of a child are the child’s parents and guarantees to respect the right and responsibility of parents to provide according to their means for the physical, emotional, intellectual, religious, moral and social education and welfare of their children.

4. Where the parents of any child fail in their responsibility towards such child, the State as guardian of the common good shall, by proportionate means, as shall be regulated by law, endeavour to supply or supplement the place of the parents, regardless of their marital status.

5. Provision may be made by law for the adoption of any child where the parents have failed for such a period of time as may be prescribed by law in their responsibility towards the child and where the best interests of the child so require.

6. Provision may be made by law for the voluntary placement for adoption and the adoption of any child and any such law shall respect the child’s right to continuity in its care and upbringing.

7. 1° The State shall not oblige parents in violation of their conscience and lawful preference to send their children to schools established by the State, or to any particular type of school designated by the State.
2° The State shall, however, as guardian of the common good, require in view of actual conditions that the children receive a certain minimum education, moral, intellectual and social.
3° Parents shall be free to provide education in their homes or in private schools or in schools recognised or established by the State.

8. The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.

In doing so, the Committee highlighted that

It was not within the remit of the Committee to address or consider the provisions relating to education which are set out in Articles 42.2 – 42.4 inclusive of the Constitution. However, because the Committee has proposed the deletion of the current Article 42 and its replacement with a new one, it is necessary to re-state the retained Articles 42.2 – 42.4. They now appear essentially unaltered in Articles 42.7 and 42.8 of the Committee’s proposed Article 42. These retained sections are in a different order to that which pertains in the Constitution. They are numbered together at the end of the Committee’s proposed amendment to set them apart from the new sections proposed by the Committee. There is only one very minor amendment to the wording of these sections, namely the deletion of the word “this”, which appears in the current article 42.2. This is merely a technical alteration as this provision in its new position in the proposed Article 42.7.3 would otherwise not make sense.

There is much to be welcomed in the draft amendment, albeit that it still evidences some serious shortcomings in ensuring holistic protection to the rights of the child. In addition, there are a wide range of perspectives from which the proposed text could be considered. This blog entry, however, will focus on whether, if adopted, the Committee’s proposed wording would bring Ireland into compliance with its voluntarily assumed international human rights law obligations under the UN Convention on the Rights of the Child. Read more…

A ‘Mere’ Two Years Later, the Committee on the Constitutional Amendment on the Rights of the Child Finally Comes Up with Wording

January 21, 2010 4 comments

A previous entry on this blog stated that if there is to be a constitutional amendment on the rights of the child, then it must be done right. The same piece questioned whether the Oireachtas Committee on the Constitutional Amendment on Children would be up to the challenge. Next week, after over a two-year wait, we will find out.

The Irish Times has reported that a rewrite of Article 42 of the Constitution, entitled Education, is to be proposed by the Committee. In contrast to the approach adopted in the Twenty-eighth Amendment to the Constitution Bill 2007 (which was initiated by the Government in February 2007), the Committee is proposing a new Article 42 rather than simply the addition of a paragraph to the article. While this seems likely to be a positive development given the often-cited shortcomings of the current Article 42 in terms of children’s rights protection, a final judgment cannot be reached until the full wording of the proposed amendment is available.

Notably, the Committee has apparently agreed not to propose any amendment to Article 41, which critics have frequrently blamed for serving as an obstacle to the realisation of children’s rights. This will be a serious disappointment to those, including the Ombudsman for Children, who have argued that such an amendment is necessary if children are to be afforded proper protection under the Constitution. The failure of the Committee to tackle Article 41 is unsurprising, however, given the long-standing stance of the government on the ‘untouchability’ of this issue. For instance, in 2006, at the outset of the previous consultation process to agree the goverment’s formulation of wording for a constitutional amendment, the then-Minister for Children made it clear to participants that a change to Article 41 – in particular, the interpretation of “family” as being based on marriage – was not under consideration.

A fuller analysis of the proposed wording will be be posted on this blog once that wording is available. In the meantime, the submissions made by the Committee can be found here, while the interim reports of the Committee are available here.

Nolan on Budget 2010: Welfare Cuts and Human Rights

December 10, 2009 1 comment

This post is contributed by our regular contributor Dr. Aoife Nolan. You can read more about Aoife on our Contributors page.

Last month, I blogged in relation to reports on significant reductions in social welfare spending in the 2010 Budget.  In that post, I highlighted some of the implications that the threatened cuts would have for the realisation of government’s obligations under the International Covenant on Economic, Social and Cultural Rights (ICESCR). The rights protected by ICESCR include the right to an adequate standard of living, including the right to adequate housing, food, water and clothing. The rights to work, social security and education, trade union rights and the right to the highest attainable standard of health are also provided for in the instrument.

Read more…

Former Special Rapporteur on the Right to Adequate Housing speaks at International Conference on ‘Budget Decisions and Economic and Social Rights’

November 17, 2009 Leave a comment

This post is contributed by Chelsea Marshall. You can read about Chelsea on our Guest Contributors page.

Speaking at the ‘Budget Decisions and Economic and Social Rights’ conference held at Queen’s University Belfast this weekend, former United Nations Special Rapporteur on Adequate Housing, Miloon Kothari warned the Saturday morning attendees that if we were “expecting an uplifting and inspiring lecture”, this was not going to be one.  In the balance of pessimism and optimism, he confessed, “pessimism triumphed”. He then proceeded to discuss the issue of budget decisions and budget work in the broader global context.  

Special Rapporteurs are independent experts who hold honorary, voluntary positions and are mandated to examine thematic or country-specific issues of particular importance to the UN.  Holding the position of Special Rapporteur on Adequate Housing from 2000-2008, Mr. Kothari described his mission as an “overwhelming global mandate” to investigate and report back to the Human Rights Council regarding wide-ranging barriers to the effective realisation of the right to adequate housing.  He interpreted this right broadly to include elements such as the rights to electricity, public services, as well as aspects of civil and political rights such as the right to participation and the right to freedom from inhuman and degrading treatment or punishment.  Like other Special Rapporteurs working on economic and social rights (ESR) issues, Mr. Kothari dedicated part of his tenure to developing indicators against which to monitor a country’s compliance with the right to adequate housing. These indicators are structural (indicators that reflect the ratification/adoption of legal instruments and the existence of basic institutional mechanisms deemed necessary for facilitating realization of the particular human right), process (indicators that relate State policy instruments with milestones), and outcome (indicators that capture attainments, individual and collective, that reflect the status of realization of a human right in a given context).  Developing and using specific indicators has been key, he argued, to identifying progress and room for improvement.  He also spoke about his work on developing basic principles and guide-lines on the right to adequate housing, as well as the need to develop mechanisms such as eviction impact tools.

Having made thirteen official country visits during his time as Special Rapporteur (and many more unofficially), Mr. Kothari shared with the audience many lessons learned, as well as outlining many of the remaining obstacles to the realisation of the right to adequate housing. He also outlined a few reasons for hope as we move forward.  Although his emphasis on challenges ahead dominated the lecture, his accessibility and frankness were encouraging as he spoke honestly about the realities he faced while advising the international human rights system on the right to housing. Read more…