ECONOMIC AND SOCIAL RIGHTS

The rights in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are of clear relevance in a minority rights context, as Margot Salmon emphasizes:

‘Failure to allow minorities and Indigenous peoples to progressively realize their economic, social and cultural rights also undermines their ability to preserve their identities, distinct traditions, languages and ways of life. Threats to their cultural identity, coupled with growing economic and social inequalities, can also be a cause of conflict. This underscores the need to appreciate fully the importance of having minorities and Indigenous peoples as the beneficiaries of ESC rights.’¹⁵³

In addition to the cultural rights aspect discussed above, CESCR has set out this remit in relation to economic and social rights. For example, in its General Comment 14 on the right to health, the Committee stated: ‘health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and Indigenous populations … All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities’.¹⁵⁴ This is seen in concluding observations, with the Committee observing in relation to Ireland a ‘lack of access to culturally appropriate sexual and reproductive health services and information for women from minority groups’, calling on the State Party to ‘[e]nsure equal access to maternal health services for Traveller, Roma, migrant women and women from minority groups with the aim of reducing maternal and child mortality rates’.¹⁵⁵ Thus, CESCR generally raises minority rights components of economic and social rights in the context of State reports.

Its individual complaints mechanism is recent and it has just 17 decisions on the merits in individual communications to date. Many of these relate to the right to adequate housing under Article 11 ICESCR, notably in the context of forced evictions. Nevertheless, minority rights aspects have emerged even in this relatively small sample. In Sara Vazquez Guerreiro v Spain (2023),¹⁵⁶ the Committee noted that ‘women, children, youth, older persons, Indigenous Peoples, ethnic and other minorities and other individuals and groups all suffer disproportionately from the practice of forced eviction.’¹⁵⁷ In Hamid Saydawi and Masir Farah v Italy (2024),¹⁵⁸ the complainants were observed to be ‘five families of North African migrant workers’ who were evicted from a block of five small, “neglected” houses close to the railway line at via Latino Silvio, Rome.¹⁵⁹ The Committee found a breach of Article 11 in that case. In Soraya Moreno Romero v Spain (2011),¹⁶⁰ the author argued that she had not been granted housing following her eviction ‘because she has been discriminated against because of her Roma ethnicity’.¹⁶¹ The Committee did not pronounce on this aspect of the communication, and ultimately held there was no breach of Article 11.

To date, individual communications under CESCR relate principally to a narrow band of the treaty’s scope, the right to housing, and involve almost overwhelmingly one State Party, Spain. Remarkably, 113 out of the 120 CESCR decisions on admissibility and merits have Spain as the respondent State Party. This may in part be explained by a ruling from the Supreme Court of Spain that UN treaty body decisions in individual communications are legally binding,¹⁶²which could make the procedure more attractive to would-be litigants. But we cannot really speak of a global jurisprudence from CESCR when its caselaw is so attenuated. We may however highlight the significance of what the Committee has stated in the Spanish caselaw. In Mohamed Ben Djazia and Naouel Bellili v Spain (2017),¹⁶³ CESCR warned States Parties to pay particular attention to evictions that involve vulnerable individuals or groups who may be subjected to ‘systemic discrimination’.¹⁶⁴ A commentary on CESCR’s very first decision, IDG v Spain (2015),¹⁶⁵ pointed out its effects that ‘the right to adequate housing does not merely impose positive and negative obligations on states, but also requires states to ensure effective judicial remedies for vulnerable and marginalized groups in order to assert their socio-economic rights’.¹⁶⁶

Thus, the potential of the mechanism for minority or Indigenous groups in the context of housing and other economic and social rights is apparent. The significance of this first case was seen also in the crucial role played by civil society organizations in making a submission to CESCR.¹⁶⁷ In line with Article 8 of the Optional Protocol to ICESCR, organizations such as the Centre for Economic and Social Rights, the Global Initiative for Economic, Social and Cultural Rights and the Socio-Economic Rights Institute of South Africa, were admitted as third-party interveners in the communication¹⁶⁸

¹⁵³ Margot E. Saloman, ‘Economic, Social and Cultural Rights: A Guide for Minorities and Indigenous Peoples’ (London: Minority Rights Group International 2005) 95.
¹⁵⁴ See CESCR General Comment 14, ‘Right to the Highest Attainable Standard of Health’ UN Doc. E/C.12/2000/4 (2000) para 12(b) and (c): ‘health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations … All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities’. See also para 34.
¹⁵⁵ UN Doc. E/C.12/IRL/CO/4 (2024) paras 46-47.
¹⁵⁶ UN Doc. E/C.12/74/D/70/2018 (2023).
¹⁵⁷ Ibid para 8.9.
¹⁵⁸UN Doc. E/C.12/75/D/226/2021 (2024).
¹⁵⁹ Ibid para 2.1.
¹⁶⁰ UN Doc. E/C.12/69/D/48/2018 (2021).
¹⁶¹ Ibid para 7.3.
¹⁶² See Koldo Casla, ‘Supreme Court of Spain: UN Treaty Body Individual Decisions are Legally Binding’ Ejil: Talk! 1 August 2018 <https://www.ejiltalk.org/supreme-court-of-spain-un-treaty-body-individual-decisions-are-legally-binding/> and ‘Spain’s Supreme Court is at it again: UN Treaty Body Decisions are Binding’ Ejil: Talk! 22 January 2024 <https://www.ejiltalk.org/spains-supreme-court-is-at-it-again-un-treaty-body-decisions-are-binding/>
¹⁶³ UN Doc. E/C.12/61/D/5/2015 (2017).
¹⁶⁴ Ibid para 15.2.
¹⁶⁵ UN Doc. E/C.12/55/D/2/2014 (2015).
¹⁶⁶ Ebenezer Durojaye, ‘Bringing Justice to the Disadvantaged: A Commentary on CESCR’s decision in IDG v Spain (Communication No. 2/2014)’ (2015) 16(3) ESR Review 10-12, at 11.
¹⁶⁷ Ibid.
¹⁶⁸ Ibid.