Professional Documents
Culture Documents
7023
Human Rights Law
Submitted by:
GROUP B
Eric R. Clamonte
Joseph D. Gepte
Leilani C. Jurado
Miame Luna L. Kilaton
Joshua Steven T. Pesiao
Miguel Louie M. Sarigumba III
Karl Benedict N. Sayson
Reyar P. Seno
Alyssa Chantelle Deb P. Soriano
Franklin Villacastin
Submitted to:
Atty. Mae Elaine T. Bathan
Submitted on:
October 26, 2020
THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
and CULTURAL RIGHTS
The International Covenant on Economic, Social and Cultural Rights is a
multilateral treaty entered into by United Nations Member States grounded on the
thought that, in order for human beings to fully enjoy freedom without the restrains of
fear, it is necessary to create a condition whereby everyone can enjoy his economic,
social and cultural rights, as well as his civil and political rights.
Reporting Protocol
Only State Parties and Specialized Agencies are provided the luxury to raise any
violations against the Covenant.
State Parties ------ Article 16, “The States Parties to the present Covenant
undertake to submit in conformity with this part of the Covenant reports on the
measures which they have adopted and the progress made in achieving the observance
of the rights recognized herein.”
Specialized Agencies ------ Article 18, “Pursuant to its responsibilities under the
Charter of the United Nations in the field of human rights and fundamental freedoms,
the Economic and Social Council may make arrangements with the specialized
agencies in respect of their reporting to it on the progress made in achieving the
observance of the provisions of the present Covenant falling within the scope of their
activities. These reports may include particulars of decisions and recommendations on
such implementation adopted by their competent organs.”
Reporting Procedure
Article 20, “The States Parties to the present Covenant and the specialized agencies
concerned may submit comments to the Economic and Social Council on any general
recommendation or reference to such general recommendation in any report of the
Commission on Human Rights or any documentation referred to therein.”
Derogation ------ Article 5(2), “No restriction upon or derogation from any of the
fundamental human rights recognized or existing in any country in virtue of law,
conventions, regulations or custom shall be admitted on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a
lesser extent.”
Accession ------ Article 26(3), “The present Covenant shall be open to accession
by any State Member of the United Nations or member of any of its specialized
agencies, by any State Party to the Statute of the International Court of Justice,
and by any other State which has been invited by the General Assembly of the
United Nations to become a party to the present Covenant.”
Amendment ------ Article 29(1), “Any State Party to the present Covenant may
propose an amendment and file it with the Secretary-General of the United
Nations.”
Ratification ------ Article 26(1). “The present Covenant is open for signature by
any State Member of the United Nations or member of any of its specialized
agencies, by any State Party to the Statute of the International Court of Justice,
and by any other State which has been invited by the General Assembly of the
United Nations to become a party to the present Covenant.”
Reservation
Reservations made by a state upon signing or ratifying a treaty, reserving its right
not to abide by certain provisions of the ICESCR is allowed.
Among the Reservations to the ICESCR are:
Reserving State Reason for Reservation
Denmark The Government of Denmark cannot, for the time being,
undertake to comply entirely with the provisions of article 7 (d)
on remuneration for public holidays.
New Zealand The State reserves the right not to apply article 8 to the
extent that existing legislative measures, enacted to ensure
effective trade union representation and encourage orderly
industrial relations, may not be fully compatible with that
article.
Qatar The State does not consider itself bound by the provisions
of Article 3 for it contravenes the Islamic Sharia with regard to
questions of inheritance and birth.
Trinidad and In respect of article 8 (1) (d) and 8 (2), the State reserves
Tobago the right to impose lawful and or reasonable restrictions on the
exercise of the aforementioned rights by personnel engaged in
essential services under the Industrial Relations Act or under
any Statute replacing same which has been passed in
accordance with the provisions of the Trinidad and Tobago
Constitution.
Limitations 1
As provided under Article 4 of the ICESCR: The States Parties to the present
Covenant recognize that, in the enjoyment of those rights provided by the State in
conformity with the present Covenant, the State may subject such rights only to such
1
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en
limitations as are determined by law only in so far as this may be compatible with the
nature of these rights and solely for the purpose of promoting the general welfare in a
democratic society.
The ICESCR’s general limitation clause provides that States may place
limitations on the rights to the extent allowed by law “only in so far as this may be
compatible with the nature of these rights and solely for the purpose of promoting the
general welfare in a democratic society.”
Example:
State X wants to forbid Doctor Y from treating Individual Z because State X believes
that Individual Z is strongly opposed to the government. Supposed that the reason of
State X for such act is on the basis of national security, then State X would have the
burden of justifying that its action was:
Derogation
The ICESCR does not provide for derogations2, it limits restrictions to those
"determined by law" and "compatible with the nature of these rights."3
Article 2 of the ICESCR requires each State Party to plan their efforts "to the
maximum of its available resources, with a view to achieving progressively the full
realization of the rights", therefore a proper derogation clause in the ICESCR would
be inappropriate.
Social, economic, and cultural rights (in particular, obligations corresponding
to subsistence rights, such as food, housing, and clean water) cannot be limited
because these things are inherently related to the Right to Life, which is a non-
derogable right.
The absence of a clause allowing derogation in times of public emergency in
the ICESCR indicates that the Covenant generally continues to apply in the time of
armed conflict, war or other public emergency, and as a minimum, states cannot
derogate from the minimum core obligations of Economic, Social and Cultural rights.4
2
Derogation “refers to the legally mandated authority of states,” who are otherwise bound by the
obligations of treaties or constitutions, “to suspend certain civil and political liberties – in response to
crises” and “can be justified solely by the concern to return to normality.
3
https://www.asil.org/insights/volume/24/issue/5/human-rights-law-time-coronavirus
4
https://www.tandfonline.com/keyword/Non-derogable+Rights
5
International Covenant on Economic, Social and Cultural Rights was entered into
force on January 3, 1976 with seventy-one (71) signatories and one hundred seventy-
one (171) parties.
6
Protocol
7
The Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights, which entered into force on 5th May 2013 with 45 signatories and
parties, provides the Committee competence to receive and consider communications
from individuals claiming that their rights under the Covenant have been violated.
The Optional Protocol was adopted on 10 December 2008 during the sixty-third
session of the General Assembly. In accordance with article 17, the Optional Protocol
shall be open for signature by any State that has signed, ratified or acceded to the
International Covenant on Economic, Social and Cultural Rights. The opening for
signature was held on 24 September 2009 during the 2009 Treaty Event at the United
Nations Headquarters in New York.
8
Amendment
Under Article 29 of the Covenant, Any State Party to the present Covenant
may propose an amendment and file it with the Secretary-General of the United
Nations. The Secretary-General shall thereupon communicate any proposed
amendments to the States Parties to the present Covenant with a request that they
notify him whether they favour a conference of States Parties for the purpose of
considering and voting upon the proposals. In the event that at least one third of the
States Parties favours such a conference, the Secretary-General shall convene the
conference under the auspices of the United Nations. Any amendment adopted by a
majority of the States Parties present and voting at the conference shall be submitted
to the General Assembly of the United Nations for approval. Amendments shall come
into force when they have been approved by the General Assembly of the United
Nations and accepted by a two-thirds majority of the States Parties to the present
Covenant in accordance with their respective constitutional processes and when
amendments come into force they shall be binding on those States Parties which have
accepted them, other States Parties still being bound by the provisions of the present
Covenant and any earlier amendment which they have accepted.
9
Treaty-based mechanisms embedded in the treaty
10
Pursuant to Articles 16 and 17, States parties undertake to submit periodic reports to
the ICESCR Committee on the programmes and laws they have adopted and the
5
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4&clang=_en
6
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3-a&chapter=4&lang=en
7
https://www.ohchr.org/EN/HRBodies/CESCR/Pages/CESCRIntro.aspx
8
https://www.ohchr.org/en/professionalinterest/pages/opcescr.aspx
9
https://scpsassam.org/wp-content/uploads/2017/08/International-Covenant-on-Economic-Social-
and-Cultural-Rights.pdf
10
http://www.ohrc.on.ca/en/book/export/html/2903
progress made in protecting Covenant rights. The U.N. has promulgated guidelines
for the preparation of reports.
Here are the provisions under Article 16 and 17 of the International Covenant on
Economic, Social and Cultural Rights:
11
Article 16
1. The States Parties to the present Covenant undertake to submit in conformity with
this part of the Covenant reports on the measures which they have adopted and the
progress made in achieving the observance of the rights recognized herein.
2.
(a) All reports shall be submitted to the Secretary-General of the United Nations, who
shall transmit copies to the Economic and Social Council for consideration in
accordance with the provisions of the present Covenant;
(b) The Secretary-General of the United Nations shall also transmit to the specialized
agencies copies of the reports, or any relevant parts therefrom, from States Parties to
the present Covenant which are also members of these specialized agencies in so far
as these reports, or parts therefrom, relate to any matters which fall within the
responsibilities of the said agencies in accordance with their constitutional
instruments.
Article 17
1. The States Parties to the present Covenant shall furnish their reports in stages, in
accordance with a programme to be established by the Economic and Social Council
within one year of the entry into force of the present Covenant after consultation with
the States Parties and the specialized agencies concerned.
2. Reports may indicate factors and difficulties affecting the degree of fulfilment of
obligations under the present Covenant.
3. Where relevant information has previously been furnished to the United Nations or
to any specialized agency by any State Party to the present Covenant, it will not be
necessary to reproduce that information, but a precise reference to the information so
furnished will suffice.
11
https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx
NOTE: please also check: https://www.ohchr.org/Documents/Publications/FactSheet16rev.1en.pdf
for more reference, https://ijrcenter.org/thematic-research-guides/economic-social-and-cultural-
rights-2/
The Committee examines the reports and addresses its concerns and recommendations
to the State party in the form of “concluding observations”.
Special Procedures
The Human Rights Council appoints Special Rapporteurs, or independent experts,
to address specific country situations or thematic 24 issues. There are several thematic
mandates which focus on ESC rights, such as the right to education, food, adequate
standard of living, non-discrimination, physical and mental health and access to safe
drinking water and sanitation. As of 23 February 2015, there are 39 thematic and 14
country mandates.
12
ORGANIZATION OF AMERICAN STATES, INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights
“Protocol of San Salvador”, See http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm
(Oct. 22, 2020 1:36PM )
obligation to take steps or procedures, individual and through international assistance
and cooperation utilizing the available resources towards achieving progress in the
realization of the rights recognized in the ICESCR.13
Philippines as a signatory to
International Covenant on Economic,
Social and Cultural Rights
The International Covenant on Economic, Social and Cultural Rights (ICESCR)
is a multilateral treaty absorbed by the United Nations General Assembly on 16
December 1966. It devote its parties to work on the granting or implementation of
economic, social, and cultural rights (ESCR) to the Non-Self-Governing and Trust
Territories and individuals, including labor rights and the right to health, the right to
education, and the right to an adequate standard of living.14
The Philippines has been a signatory of the Covenant since December 19, 1966 and
has ratified the same on June 7, 1974.15
As the Philippines, being one of the 164 nations that ratified the ICESCR, the UN
urged the Philippines as a requirement to undergo regular review by the Committee,
which is composed of 18 independent human rights experts that will discuss the range
issues relating to the Philippines’s implementation of the ICESCR, with a Philippine
delegation.16 The Philippines also has created and planned thematic objectives in
order to implement or abide the treaty and such as:17
13
INTERNATIONAL JUSTICE RESOURCE CENTER, Economic, Social and Cultural Rights
14
Christine P. Carpio-Aldeguer, The Covenant on Economic, Social &Cultural Rights- The Philippines’
Perspective, 2015
15
Id.
16
Nestor Corrales, UN Body to Review PH implementation of Rights Treaty, INQUIRER, Oct. 22, 2020
17
Ramon M Falcon, UGNAYANG BAYAN, SECOND Philippine Human Rights Plan (PHRO II) Accomplishment
Report: Thematic Chapter on the International Covenant on Economic, Social and Cultural Rights
(ICESCR), 2015
18
Presedential Human Rights- Secretariat,2nd Philippine Human Rights Plan (PHRP II): Chapter 3-
ICESCR Chapter, at pg 3, 7, 17 & 31
19
Id at pg 3, 8, 17 & 31
- To improve access to health care services, enhancing equity and quality of
health care and making health care services more affordable20
- To review all existing legislation that enforces health and safety at work to
ensure the right of workers to a safe and healthy work conditions and
social security benefits21
- To increase budget allocation in national and local budget for educational
services22
- To implement programs and projects targeting poverty stricken and armed
conflict areas23
- To enact a law making the Department of Agrarian Reform Adjudication
Board as an independent body24
- To monitor the wage boards and regulatory agencies25
- To harmonize areas of conflict in the implementation of the provisions of
the Mining Law & Indigenous Peoples’ Rights Act (IPRA)26
20
Id at pg 4, 10, 18 & 33
21
Id at pg 4, 11, 19 & 35
22
Id at pg 4, 12, 19 & 36
23
Id at pg 5, 12, 26 & 36
24
Id at pg 5, 13, 26 & 37
25
Id at pg 5, 14, 27 & 38
26
Id at pg 6, 15, 28 & 38
Cases:
For its defense, the court argued that the legislation regulating
mortgage enforcement proceedings does not adequately protect
people’s right to mount a proper legal defense of their homes. People
affected by these proceedings are in many cases unaware that their
creditors have filed a lawsuit until they are dispossessed or evicted.
Moreover, the State party’s procedural law precludes the court in cases
of this kind from taking precautionary measures to ensure that its final
decision is fully effective, for example where the terms of the contract
are unfair.
The author argues that the rights she enjoys under the Covenant
mean that courts must ensure that notice is effectively served. Yet in
her case, after the failed attempts to serve notice in person at her
home, the Court proceeded directly to the posting of notice without
making use of other forms or methods of serving notice as established
in the Civil Procedure Act. As a result of the Court’s lack of diligence,
she was not notified of the mortgage enforcement proceedings brought
by the lending institution or of the decision to admit the proceedings,
and received no other communication prior to the auction order. The
author argues that in practice the failure to notify her prevented her
from mounting a legal response to the suit and protecting her right to
housing in court, since she became aware of the existence of the
proceedings only when the Court ordered the auction of her home. As
a result of the lack of effective and timely judicial protection, the
author claims that she is now in a position of vulnerability, uncertainty
and anxiety, a situation that has seriously affected her health.
Recommendations.
The owner of the property filed a claim with a view to having the
author evicted. Madrid Court of First Instance decided that the rental
contract should be deemed to have been terminated. This decision was
upheld on appeal by the Provincial High Court of Madrid, and was
upheld on further appeal by the Supreme Court. The eviction was
suspended twice, the first because of an administrative error and the
second because a number of individuals staged a protest in support of
the author in front of the property. Each time she was notified of an
eviction order, the author requested a suspension, claiming that she
had no alternative housing. The author claims that her eviction, in the
absence of adequate alternative housing, constituted a violation by the
State party as to her rights under article 11 (1) of the Covenant, and
requests right to housing and reparation for the damage caused.
The State party claims that the author has not been left without
housing at any time and that the competent court did everything it
could to address the author’s situation, including suspending two
eviction orders, but that it was also bound to address the needs of the
property owner, who is a natural person. The State party also alleges
that the author has rejected the alternative housing options presented
to her. The author reports that she did so because those options were
unsuitable.
As the author did not vacate the property and continued to live in it,
Madrid Court of First Instance No. 86 ordered her eviction. The
Committee notes the State party’s claim that it was also bound to
address the needs of the property owner, who is a natural person. The
Committee notes that the right to private property is not a Covenant
right, but recognizes that the State party has a legitimate interest in
ensuring the protection of all rights established in its legal system, so
long as this does not conflict with the rights set forth in the Covenant.
The Committee notes that the Court rejected the author’s applications
for suspension of the eviction, in which she explained her particularly
vulnerable financial situation and the fact that she did not have
alternative housing. When it rejected the application for suspension,
Madrid Court of First Instance No. 86 did not conduct an analysis of
the proportionality of the legitimate objective of the eviction to its
consequences for the evicted person. Furthermore, the State party’s
legislation did not provide the author with any other mechanism
through which to challenge the eviction order, which was to have been
executed almost immediately, that would have given another authority
the opportunity to analyse the proportionality of the eviction and the
conditions in which it was to be carried out.
3. Although the State party claims that the author did not act
reasonably in such negotiations, the fact remains that no examination
of the proportionality of the eviction was conducted before the
decision to evict her was taken
The Committee notes that the State party thus claims to have made
every effort, to the maximum of its available resources, to provide
alternative housing. However, the principle of proportionality may
require the suspension or postponement of the eviction order so as to
avoid exposing the evicted persons to situations of destitution or
violations of other Covenant rights. The Committee considers,
therefore, on the basis of all the documentation made available to it,
that in the circumstances of the present case the author did not have
the opportunity to have the proportionality of her eviction assessed by
a judicial or other impartial and independent authority with the power
to order the cessation of the violation and to provide an effective
remedy. The Committee finds, therefore, that the absence of such an
assessment constituted a violation by the State party of the author’s
right to housing under article 11 of the Covenant, read in conjunction
with article 2 (1).
General recommendations
1. The State party should ensure that its legislation and the
enforcement thereof are consistent with the obligations established in
the Covenant. In particular, the State party has an obligation to:
(a) Ensure that the normative framework allows persons in
respect of whom an eviction order is issued and who might
consequently be at risk of destitution or of violation of their
Covenant rights to challenge the decision before a judicial or
other impartial and independent authority with the power to
order the cessation of the violation and to provide an effective
remedy so that such authorities can examine the
proportionality of the measure in the light of the criteria for
limiting the rights enshrined in the Covenant under the terms
of article 4;
Facts
The applicant is a national of the Former Yugoslav Republic of
Macedonia, of Turkish origin. He has two daughters whom he wished
to send to a Turkish-speaking school situated in another district than
the one where they lived, as the school of their own district did not
provide teaching in Turkish. According to the Primary Education Act,
pupils should attend the State primary school of their place of
residence.
In February 1997, the applicant asked the Turkish-speaking school to
admit his elder daughter. He received no answer and complained,
allegedly on two successive occasions, to the competent authority. He
started proceedings before the Supreme Court. The school, at this
stage, refused to enrol his elder daughter, as they did not live in the
district of the school. The Supreme Court refused, on procedural
grounds, to examine the applicant’s complaint in respect of the
school’s refusal. The Constitutional Court did not quash the Supreme
Court’s decision. The Supreme Court refused to examine the
applicant’s request for having the proceedings reopened as the
applicant had not provided fresh evidence as required by law.
No.
Decision
(General Article 14 complements the other substantive provisions of the
Comment) Convention and the Protocols. It has no independent existence since it
has effect solely in relation to “the enjoyment of the rights and
freedoms” safeguarded by those provisions. Although the application
of Article did not necessarily presuppose a breach of those
provisions – and to this extent it was autonomous –, there can be no
room for its application unless the facts at issue fall within the ambit
of one or more of the latter.
The applicant failed to make proper use of the opportunities to
challenge the refusal of the school to enrol his elder daughter or to
complain to the Constitutional Court that his elder daughter was
discriminated against.
It followed that the complaint must be rejected for non-exhaustion of
domestic remedies.
However, the Court did not need to examine whether the applicant’s
claim fell within the ambit of Article 2 of Protocol No. I since, in any
event, the complaint was inadmissible.
It followed that the complaint must be rejected for non-exhaustion of
domestic remedies.
A right to education in a particular language or a right to obtain from
the State the creation of a particular kind of educational establishment
could not be derived from Article 2 of Protocol No. I. This provision
did not require of States that they should, in the sphere of education or
teaching, respect parents’ linguistic preferences, but only their
religious and philosophical convictions. To interpret the terms
“religious” and “philosophical” as covering linguistic preferences
would amount to a distortion of their ordinary and usual meaning and
to read into the Convention something which was not there. Moreover,
the Court recalled that the “drafting history of that Article” confirmed
that the object of the second sentence of Article 2 was in no way to
secure respect by the State of a right for parents to have education
conducted in a language other than that of the country in question;
indeed in 1951 the Committee which drafted Protocol No. I to the
Convention set aside a proposal put forward in this sense, several of its
members having believed that it concerned an aspect of the problem of
ethnic minorities and that it thus fell out- side the scope of the
Convention.
It followed that this complaint was incompatible ratione materiae with
the pro- visions of the Convention and must be rejected.
Decision Inadmissible. The Committee finds that the author has not
(General sufficiently substantiated his claims under article 11 of the Covenant
Comment) and that they are inadmissible under article 3 (2) (e) of the Optional
Protocol.
Indigenous Community Members of the Lhaka Honhat (Our Land) Association
vs. Argentina
Facts
Indigenous community members from the Lhaka
Honhat Association sued Argentina on behalf of 132 Indigenous
communities belonging to the Wichí (Mataco), Iyjwaja (Chorote),
Komlek (Toba), Niwackle (Chulupí), and Tapy'y (Tapiete) peoples
who live on lots with the cadastral registrations 175 and 5557 in the
Province of Salta (previously known as and referred to in the case as
lots 14 and 55). The Indigenous communities sued Argentina for
violating their right to communal property by failing to provide legal
security to their territory and allowing Creole settlers to reside on their
lands; they also sued to protect their rights to a healthy environment,
adequate food, participation in cultural life, and judicial protection.
After residing on the land for centuries the Indigenous claims
to the land were first formalized in 1991 through Decree No. 2609/91,
which required Salta to unify the lots and allocate a part of the
property to them as communal property (title as a single deed of
communal ownership as opposed to individual deeds). In 1992, Lhaka
Honhat formed to obtain the title they still had not received. In 1993,
the State created an Advisory Commission, and in 1995 they
recommended assigning two thirds of the land of the lots to the
Indigenous communities, which they accepted. However, in 1995,
without consulting the Indigenous communities, the State built an
international bridge on the Indigenous peoples’ land. In 1999, Salta,
through Decree 461 made allotments of parts of lot 55 to a few
individual Indigenous communities settled there. In 2000, the Province
presented a proposal for awarding lot 55, but the Lhaka Honhat
rejected the offer because it did not include lot 14, and it did not
include communal title. In response to an amparo action filed by
Lhaka Honhat in 1999 against Decree 461, the Court of Salta in 2007
annulled Decree 461 because the Indigenous peoples did not have an
adequate opportunity to make their opinions known. Lhaka Honhat
then reduced their claim from 643,000 ha to 400,000 and give 243,000
ha to the Creole families of lots 14 and 55, and Salta adopted Decree
2786/07 to endorse the revised claim. Following the Decree, a Salta
team held meetings aimed at reaching agreements between the Creole
and Indigenous communities. In 2012, Salta issued Decree 2398/12 to
assign 243,000 ha of lots 14 and 55 to Creole communities and
400,000 ha for Indigenous communities. Then in 2014, through
Decree 1498/14, Salta transferred the property as a shared property
between 71 Indigenous communities and the Creole families. To date,
the State has not provided a communal title for all of the communities
that form Lhaka Honhat, which now are 132. In the meantime, Creole
settlers’ activities, such as illegal logging, raising livestock, and
fencing installations, have taken place on the Indigenous communities’
lands. These activities have led to loss of forest resources and
biodiversity and have grossly impacted the traditional ways in which
Indigenous communities access food and water.
Issue Whether or not there was a violation on (1) the right to community
property, (2) the rights to a healthy environment, adequate food, water,
and cultural identity, and (3) the right to judicial guarantees.
Decision The Committee held that, “in the absence of reasonable arguments on
(General the part of the State party regarding all the measures taken to the
Comment) maximum of its available resources, the authors’ eviction, without a
guarantee of alternative housing by the authorities of the State party as
a whole, […] constituted a violation of their right to adequate
housing." The Committee found a violation of Article 11(1) read
separately and in conjunction with Article 2(1) (obligation to adopt
measures to the maximum of available resources towards progressive
realization of rights) and 10(1) of the Covenant (obligation to provide
the family with the widest possible protection). In doing so, it
referenced its existing guidance to states, including General Comment
No. 7(link is external) (on forced evictions) and General Comment
No. 4(link is external) (on the right to adequate housing).
CESCR highlighted positive obligations of the state to protect the right
to housing even where the eviction is justified (for example, in the
case of “persistent non-payment of rent” or “damage to rented
property”). In such cases, certain conditions need to be observed,
which include access to effective judicial remedies, genuine prior
consultation with affected individuals, consideration of alternative
options, assurance that no other rights will be violated as a result of
the eviction, special protection to vulnerable groups and reasonable
measures to provide alternative housing.
In considering the respondent state’s justifications regarding the lack
of access to alternative housing, the Committee noted that, in this case,
the state had an even greater duty to justify the outcome since minor
children were negatively impacted. In addition, CESCR underscored
that that the “lack of housing is often the result of structural problems,
such as high unemployment or systemic patterns of social exclusion”,
which the authorities must resolve through an appropriate, timely and
coordinated response. Referencing its 2016 statement(link is
external) regarding public debt and austerity measures, CESCR
condemned the sale of public housing stock to private investment
funds by regional authorities at a time when there was increased need
for social housing, stating that “in times of severe economic and
financial crisis, all budgetary changes or adjustments affecting policies
must be temporary, necessary, proportional and non-discriminatory.”
Finally, while the family had been offered a couple of alternative
housing options, the Committee recognized that these offers would
have split up the family, in violation of Article 10.
CESCR issued individual recommendations requiring the state to
ensure that the family has access to adequate housing, as well as
financial compensation and legal costs. CESCR also issued general
recommendations to Spain with regard to: (a) the adoption of
legislative and/or administrative measures to ensure that tenants have
access to judicial proceedings where the “judge might consider the
consequences of eviction…”; (b) the adoption of measures to resolve
the “lack of coordination between court decisions and the actions of
social services”; (c) the adoption of measures to guarantee that
evictions of those without the means to obtain alternative housing
involve “genuine consultation” and essential steps regarding
alternative housing; (d) special protection for those who are in a
situation of vulnerability; and (e) the development and implementation
of a plan to “guarantee the right to adequate housing for low-income
persons”.