NATIONAL HUMAN RIGHTS INSTITUTIONS AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS

Transcription

1 NATIONAL HUMAN RIGHTS INSTITUTIONS AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS

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3 NATIONAL HUMAN RIGHTS INSTITUTIONS AND ECONOMIC, SOCIAL AND CULTURAL RIGHTS Edited by Eva Brems Gauthier de Beco Wouter Vandenhole Cambridge Antwerp Portland

4 Publishing Ltd. Trinity House Cambridge Business Park Cowley Road Cambridge CB4 0WZ United Kingdom Tel.: Distribution for the UK: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7 PP United Kingdom Tel.: Fax: orders@nbninternational.com Distribution for Austria: Neuer Wissenschaftlicher Verlag Argentinierstraße 42/ Wien Austria Tel.: office@nwv.at Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) info@isbs.com Distribution for other countries: Publishing nv Groenstraat Mortsel Belgium Tel.: mail@intersentia.be National Human Rights Institutions and Economic, Social and Cultural Rights Eva Brems, Gauthier de Beco and Wouter Vandenhole (editors) 2013 Cambridge Antwerp Portland Cover image: Morgengrauen, Jawlensky Alexej von ( ) Musée national d Art moderne Centre Georges Pompidou, MNAM-CCI, Dist. RMN-Grand Palais / Philippe Migeat ISBN D/2013/7849/25 NUR 828 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library. No part of this book may be reproduced in any form, by print, photoprint, microfilm or any other means, without written permission from the publisher.

5 CONTENTS Introduction to the Volume Eva Brems, Gauthier de Beco and Wouter Vandenhole The Role of National Human Rights Institutions in the Promotion and Protection of Economic, Social and Cultural Rights: Historical, Theoretical and Critical Perspectives Gauthier de Beco National Human Rights Institutions (NHRIs) Economic, Social and Cultural Rights The Role of National Human Rights Institutions in the Promotion and Protection of Economic, Social and Cultural Rights Support for NHRI Engagement in Economic, Social and Cultural Rights The Contribution of NHRIs to the Implementation of Economic, Social and Cultural Rights Factors Encouraging NHRIs to Focus on Economic, Social and Cultural Rights Conclusion National Human Rights Institutions as Independent Actors in Relation to Economic, Social and Cultural Rights Lone Lindholt Introduction Human Rights Actors Definition and Rationale The Concept of Human Rights Actor Independent Actors National Human Rights Institutions as Human Rights Actors General Human Rights Instruments The Paris Principles on National Human Rights Institutions Other Documents United Nations Handbook Commonwealth Conference v

6 Contents Ombudsman and National Institutions Conference UN Handbook on Economic, Social and Cultural Rights for National Institutions Framework for the Recognition of Economic, Social and Cultural Rights International Covenant on Economic, Social and Cultural Rights Limburg Principles Maastricht Guidelines UN General Comments Conclusion: National Human Rights Institutions and Economic, Social and Cultural Rights The Bolivian Human Rights Ombudsman and Economic, Social and Cultural Rights Thomas Pegram Introduction Fulfilling an ESCR Mandate in Bolivia The Bolivian Defensoría del Pueblo Defining an ESCR mandate The parameters of an ESCR mandate Defining an ESCR mandate: the internal challenge Defining an ESCR mandate: the external challenge Implementing an ESCR Mandate Implementation through Legislative and Policy Impact Policy impact Monitoring legislation Implementation through judicial activism and legal petition Implementation through Social Accountability Mobilisation Coordination with civil society organisations Coordination with the media The Defensoría and Engagement at the International Level Conclusion Bibliography The Role of NHRC in Protecting and Promoting the Economic and Social Rights of Vulnerable Groups in India Justice B.C. Patel Demographic, Political, Economic, Social and Cultural Profile of India The Set Up of NHRC-India and Its Mandate vi

7 Contents 2.1. The Extensive Range of Its Functions Complaint Handling Mechanism Suo Motu Power Powers Relating to Inquiries Powers of Investigation Broad Autonomy Specialised Staff Core and Expert Groups Appointment of Special Rapporteurs Holding of Camp Sittings Creating a Culture of Human Rights The Protection and Promotion of the Social and Economic Rights of Vulnerable Groups The Right to Health Access to health care Nutrition Public hearings on the right to health care Mental health Silicosis Issue of endosulfan The Right to Food Starvation deaths in Odisha Human rights awareness and facilitating the assessment and enforcement of the human rights programme in 28 selected districts of India The Right to Education The Rights of Children The Rights of Women The Rights of Scheduled Castes, Scheduled Tribes and Other Vulnerable Groups The Rights of Minorities Conclusion The Monitoring Role of the Ghana Commission on Human Rights and Administrative Justice (CHRAJ) in the Protection of Economic, Social and Cultural Rights Kofi Quashigah Introduction The 1992 Constitutional Provisions The CHRAJ as a National Human Rights Institution The Role of CHRAJ in Relation to the State s Duties in Respect of Economic and Social Rights vii

8 Contents 3. The CHRAJ s Concept of Monitoring Monitoring Approaches and Methodologies The Importance of NHRIs in Monitoring The Need for Monitoring Judicial Attitude in Ghana Towards Economic, Social and Cultural Rights Collaboration with NGOs in the Monitoring Exercise The CHRAJ s Thematic Areas for Monitoring Monitoring Goals Examples of Specific Thematic Research Processes Child rights The right to basic education The right to health A Case Study of an Investigation into Mining and Its Effects on Affected Communities The Initiated Review of the Monitoring Process Examples of the Benefits of the Tracking System Prisons monitoring Trokosi monitoring The Future Importance of Monitoring in the Ghanaian System Conclusion National Human Rights Institutions and Economic, Social and Cultural Rights: An Examination of the Mandate and Practice of the Ethiopian Human Rights Commission Mohammed Abdo Introduction The Establishment of the Commission Structure of the Commission Mandate and Power of the Commission Mandate of the Commission over Economic, Social and Cultural Rights Review of the Practice of the Commission in Enforcing Economic, Social and Cultural Rights Promotion of Economic, Social and Cultural Rights Protection of Economic, Social and Cultural Rights Assessment of the Practice of the Commission Regarding Economic, Social and Cultural Rights Concluding Remarks viii

9 Contents Equal Treatment, an Effective Mechanism to Protect Human Rights in the Netherlands? Laurien J.L. Koster Introduction The Equal Treatment Commission and Its Legal Mandate The Right to Work: Article 6 of the ICESCR Scope ETC Case Law in the Field of Recruitment and Selection The Use of Other Instruments The Right to the Enjoyment of Just and Favourable Conditions of Work: Article 7 ICESCR ETC Case Law Regarding Terms of Employment and Working Conditions Use of Other Instruments: Investigation and Research Unequal pay Pregnancy Work environment Analysis and Conclusions: Relative and Absolute Standards Article 11 ICESCR: An Adequate Standard of Living Introduction Housing The Right to Health: Article 12 ICESCR The Right to Education: Article 13 ICESCR Concluding Remarks Anti-Discrimination Legislation and the Role of an Equality body in the Promotion of Economic and Social Rights Jozef De Witte The Centre for Equal Opportunities and Opposition to Racism The International Covenant on Economic, Social and Cultural Rights Non-Discrimination Legislation The Role of the Centre when Economic and Social Rights are Violated The Right to Work The Right to Housing The Right to Health Care The Right to Dispose of One s Property The Right to Social and Leisure Activities ix

10 Contents 4.6. The Right to Participate in Economic and Social Life Difficulties The Centre s Other Contributions to the Realisation of Economic and Social Rights Conclusion The Role of National Inquiries in the Protection of Social and Economic Rights Brian Burdekin The United Nations Standards for NHRIs (the Paris Principles ) National Inquiries The Australian National Inquiry on Mental Illness x