Addressing economic and social rights violations by non-state actors through the role of the State: A comparison of regional approaches to the 'obligation to protect'

Human Rights Law Review

Volumn 9, Issue 2, 2009, Pages 225-255

  Nolan, Aoife ^a  

^a QUEEN'S UNIVERSITY BELFAST   (United Kingdom)

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EID: 67649514887     PISSN: 14617781     EISSN: 17441021     Source Type: Journal    
DOI: 10.1093/hrlr/ngp007     Document Type: Article

References (193)

1. There have been numerous attempts to define 'non-state actors'. In an economic, social and cultural rights context, the UN Committee on Economic, Social and Cultural Rights (ComESCR) has said that the relevant NSA in the context of the duty to protect include 'individuals, groups, corporations and other entities as well as agents acting under their authority': See General Comment No. 15, The right to water (Articles 11 and 12), E/C.12/2002/11 (2002)
2. 10 IHRR 303 (2003) at para. 23.
3. The definitions of some commentators include a requirement that a NSA must engage in transnational relations. See, for example, the definition of Josselin and Wallace critiqued by Alston, 'The Not-a-cat Syndrome: Can the International Human Rights Regime Accommodate Non-State Actors?', in Alston (ed.), Non-State Actors and Human Rights (Oxford: Oxford University Press, 2005) 1 at 15-6. However, I prefer to follow the broader approach of the ComESCR as its definition captures both NSA that operate solely in one jurisdiction, as well as those with a transnational element to their activities. In this article, I will use the term'private actor'as synonymous with NSA.
4. The obligation to protect ESR should not be confused with the emerging international law concept of the 'responsibility to protect', which was endorsed by the UN General Assembly in October 2005: See World Summit Outcome Document, GA Res. 60/1, 24 October 2005, A/RES/60/1 at paras 138-9. According to this concept, sovereign states have a responsibility to protect their own citizens from certain categories of atrocities.
5. However, when they are unwilling or unable to do so, that responsibility falls to the international community of states. For an influential analysis of the 'responsibility to protect', see International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Canada: International Development Research Centre, 2001).
6. Shue, 'The Interdependence of Duties', in Alston and Tomasevski (eds), The Right to Food (Dordrecht: Martinus Nijhoff Publishers, 1984) 83.
7. For more on the evolution of, and variations on, this typology, see Koch, 'Dichotomies, Trichotomies or Waves of Duties?', (2005) 5 Human Rights Law Review 81 at 84-7
8. and Craven, The International Covenant on Economic, Social and Cultural Rights - A Perspective on its Development (Oxford: Oxford University Press, 1995) 109-14.
9. 993 UNTS 3. The ComECSR first adopted the tripartite typology in its General Comment No. 12,The right to adequate food (Article 11), E/C.12/ 1999/5 (1999)
10. 6 IHRR 902 (1999) at para.15.
11. 6 ComESCR, General Comment No.13, The right to education (Article 13), E/ C.12/1999/10 (1999)
12. 7 IHRR 303 (2000) at para.47.
13. Hessbruegge, 'Human Rights Violations Arising from Conduct of Non-State Actors', (2005) 11 Buffalo Human Rights Law Review 21 at 88.
14. Jochnick, 'Confronting the Impunity of Non-State Actors: New Fields for the Promotion of Human Rights', (1999) 21 Human Rights Quarterly 56 at 59.
15. See, for example, Article 33(2) of the Draft Articles on the responsibility of States for internationally wrongful acts, in International Law Commission, Report on the work of its 53rd session, A/ 56/10 (2001).
16. See, for example, Report of the Special Representative of the Secretary-General, John Ruggle, on human rights and transnational corporations and other business enterprises, 'Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, including the Right to Development - Protect, Respect and Remedy: A Framework for Business and Human Rights', 7 April 2008, A/HRC/ 8/5
17. and Sub-Commission on the Promotion and Protection of Human Rights, 'Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights', 26 August 2003, E/CN. 4/Sub.2/2003/12/Rev.2 (2003).
18. For an interesting synopsis of the key issues arising in relation to the ESR obligations of the International Monetary Fund and the World Bank, see Ssenyononjo, 'Non-state actors and Economic, Social and Cultural Rights', in Baderin and McCorquodale (eds), Economic, Social and Cultural Rights in Action (Oxford: Oxford University Press, 2007) 109 at 128-33.
19. For more on the IMF specifically, see Gianviti, 'Economic, Social and Cultural Human Rights and the International Monetary Fund', in Alston, supra n. 1 at 114.
20. Examples of domestic legal orders that allow for horizontal application of ESR include Article 8 of the South African Constitution and the doctrine of the horizontal application of rights set out in Irish constitutional law. For a discussion of the accountability of NSA and the state for human rights violations committed by NSA under international and regional human rights law, see Hessbruegge, supra n. 7.
21. For a discussion of the direct accountability of NSA under domestic law, see various chapters in Oliver and Fedtke (eds), Human Rights and the Private Sphere: A Comparative Study (New York: Routledge Cavendish, 2007).
22. See 55/96, SERAC and CESR v Nigeria 15th Annual Activity Report of the ACHPR (2002)
23. 10 IHRR 282 (2003) at para. 46, discussed in Section 4 below.
24. See ComESCR, General Comment No. 7, The right to adequate housing forced evictions (Article 11(1)), E/1998/22 Annex IV (1997)
25. 5 IHRR 1 (1998) at para. 13.
26. See ComESCR, General Comment No. 19, The right to social security (Article 19), E/C.12/GC/19 (2008)
27. 15 IHRR 605 (2008) at para. 46. Sentence adapted from Langford and Nolan, Litigating Economic, Social and Cultural Rights: Litigation Practitioners' Dossier (Geneva: Centre on Housing Rights and Evictions, 2006) at 29-30.
28. 1144 UNTS 123. Other relevant instruments include the American Declaration on the Rights and Duties of Man 1948, OAS Res. XXX, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 1988 (Protocol of San Salvador), OASTS No. 69 (1998).
29. Thiele, 'Litigating Against Forced Evictions Under the American Convention on Human Rights', (2003) 21 Netherlands Quarterly of Human Rights 463 at 466-7. The American Declaration on the Rights and Duties of Man does not contain a similar provision. Article 1 of the Protocol of San Salvador is primarily concerned with the progressive achievement within available resources of the ESR set out in that instrument. However, it would seem surprising if the rights set out in that instrument were not also construed as imposing a duty to protect by the Inter-American human rights bodies.
30. Hessbruegge, supra n. 7 at 71, referring to the 1975 Annual Report of the Inter-American Commission of Human Rights, Organization of American States, OEA/Ser.L/V/II.37 at Part 2.
31. 577, Mayagna (Sumo) Awas Tingni Community v Nicaragua IACtHR Series C 79 (2001); 10 IHRR 758 (2003) at para. 136.
32. See Case 7615, Yanomami Community v Brazil Res. 12/85, Annual Report 1984-85.
33. IACtHR Series C 4 (1988).
34. Ibid. at para. 166.
35. Ibid. at para. 175.
36. Ibid. at para. 172.
37. One apparent exception to this occurred in OC-18/2003, Advisory Opinion on the Juridicial Condition and Rights of the Undocumented Migrants IACtHR Series A 13 (2003); 12 IHRR 702 (2005) at para. 104, where the Inter-American Court referred to the 'special obligation to protect that the state must exercise with regard to the acts and practices of third parties who, with its tolerance and acquiescence, create, maintain or promote discriminatory situations.' The Court did not, however, make any reference to the ComESCR's jurisprudence in the Advisory Opinion. Therefore, this passage should not be read as incorporating the tripartite typology into the Court's case law.
38. Indeed, there is generally rather limited reference to the ICESCR and the statements of the ComESCR in the Inter-American Court's jurisprudence. This may be attributable to the fact that the Inter-American human rights instrument that is closest in form and content to the ICESCR is the Protocol of San Salvador. The fact that only Articles 8(a) and 13 of the Protocol can form the basis of a complaint before the Court, as well as the low level of state ratification of the Protocol, has also reduced the Court's opportunities to consider its provisions in detail. Notably, the Court appears to have an understandable preference for citing the Protocol of San Salvador in the body of its judgments, rather than the ICESCR, when dealing with issues addressed by both instruments: See, for example, Advisory Opinion, ibid. at para. 31. It is notable the Court did make reference to the ICESCR in several footnotes to this judgment.
39. Series C 149 (2006).
40. The complaint also alleged violations of Articles 8 (right to a fair trial) and 25 (right to judicial protection), which are not dealt with in this article.
41. Supra n. 27 at para. 85.
42. Ibid. at para. 89.
43. The clinic in question was authorised by the State to provide mental health services.
44. In 12.034, Case of the 'Five Pensioners' v Peru IACtHR Series C 98 (2003);12 IHRR 400 (2005) at paras 142-8, the Court fleshed out the 'principle of progressive development' in Article 26, stating that progressive development should be measured in function of the growing coverage of economic, social and cultural rights in general, rather than the particular situation of a group of individual rights-holders whose situation might not necessarily represent the prevailing situation. Despite the Court's claims to the contrary, this is not consistent with the construal of the duty of progressive realisation made by the ComESCR.
45. Melish, 'The Inter-American Court of Human Rights: Beyond Progressivity', in Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (New York: Cambridge University Press, 2008 372 at 388.
46. Ibid. See, for example, Case of the 'Juvenile Reeducation Institute' v Paraguay IACtHR Series C 112 (2004); 14 IHRR 1084 (2002) at para. 159.
47. See, for example, Case of the 'Yakye Axa Indigenous Community' v Paraguay IACtHR Series C 125 (2005); 15 IHRR 926 (2008).
48. See, for example, Juvenile Reeducation Institute, supra n. 34.
49. See, for example, Case of the 'Sawhoyamaxa Indigenous Community' v Paraguay IACtHR Series C 146 (2006).
50. See, for example, Yakye Axa Indigenous Community, supra n. 35.
51. See, for example, ibid. at para. 163
52. 1 and 83-6
53. and Juvenile Reeducation Institute, supra n. 34 at para. 174.
54. Mayagna (Sumo) Awas Tingni Community, supra n. 19.
55. While primarily based on the right to property - which is traditionally perceived as a civil and political right - the Awas Tingni Community case can be construed as an ESR case, involving as it did issues such as the Community's ability to pursue traditional livelihoods.
56. Supra n. 19 at para. 153.
57. Ibid. at para. 164.
58. IACtHR Series C 148 (2006).
59. Ibid. at para. 170(1).
60. Ibid. at para. 2.
61. The Inter-American Commission also alleged violations of Articles 4 (right to life), 19 (rights of the child), 7 (right to personal liberty), 5 (right to humane treatment), 11 (right to a fair trial) and 22 (right to freedom of movement and residence). The Court found there had been violations of all these rights.
62. Mayagna (Sumo) Awas Tingni Community, supra n. 19 at para. 193.
63. Ibid. at para. 194 (emphasis added).
64. Selçauk and Asker v Turkey 1996-II; 26 EHRR 477; Ayder and others v Turkey Applic. No. 23656/94, 6 January 2004: And Bilgin v Turkey (2003) 36 EHRR 879.
65. Mayagna (Sumo) Awas Tingni Community, supra n. 19 at para. 197.
66. OAU CAB/LEG/67/3 rev. 5; 21 ILM 58 (1982).
67. See Petition in 296/05, Centre on Housing Rights and Evictions (COHRE) v The Sudan at para. 52, available at: http://cohre.org/sudan [last accessed 12 May 2009].
68. 74/92, Commission Nationale des Droits de l'Homme et des Liberteés v Chad 9th Annual Activity Report of the ACHPR (1995-96); 4 IHRR 94 (1997).
69. Ibid. at para. 20.
70. Supra n. 13.
71. The facts of this case are adapted from Nolan et al, Leading Cases on Economic, Social and Cultural Rights: Summaries (Geneva: COHRE, 2008) at 14.
72. SERAC, supra n. 13 at para. 44.
73. See, for example, ibid. at paras 44-8.
74. Ibid. at para. 46.
75. Ibid. at para. 57.
76. A 91 (1985); 8 EHRR 235, where the European Commission of Human Rights cited these cases at para. 57 of its decision. For a discussion of the Velàsquez Rodrígeuz case, see Section 2 above. For a discussion of the X and Y case, see Section 5 below.
77. SERAC, supra n. 13 at paras 59-63.
78. Ibid. at paras 64-6.
79. The American Declaration also imposes ESR-related duties on 'every individual' and 'person' in, for example, Articles XXX, XXI and XXXV. As with the African Charter, these duties cannot be the subject of a complaint before either the Inter-American Commission or the Inter-American Court.
80. Chirwa, 'The African Regional System: The promise of recent jurisprudence on social rights', in Langford, supra n. 33 at 327.
81. Oloka-Onyango, 'Reinforcing Marginalized Rights in an Age of Globalization: International Mechanisms, Non-State Actors, and the Struggle for Peoples' Rights in Africa', (2003) 18 American University International Law Review 851 at 910.
82. The African Commission has interpreted Article 27(2) as a general limitations clause (see 105/93, 128/94, 130/96 and 152/96, Media Rights Agenda v Nigeria 12th Annual Activity Report of the ACHPR (1998-99); 9 IHRR 224 (2002) at para. 68).
83. Heyns, 'The African Regional Human Rights System: The African Charter', (2004) 108 Pennsylvania State Law Review 679 at 692-3, has commented that the African Commission's use of Article 27(2) as a general limitation clause 'seems to confirm the view that the concept of "duties" should not be understood as a sinister way of saying rights should first be earned, or that meeting certain duties is a precondition for enjoying human rights. Rather, it implies that the exercise of human rights, which are "natural" or valid in themselves, may be limited by the duties of individuals. Rights precede duties, and the recognition of duties is merely another way of signifying the kind of limitations that may be placed on rights'. Similar provisions to Article 27(2) exist in the European Convention of Human Rights (Article 17) and the American Convention (Article 29).
84. 245/02, Zimbabwe Human Rights NGO Forum v Zimbabwe 21st Annual Activity Report of the ACHPR (2007) at Annex III.
85. For an analysis, see Beyani, 'Recent Developments in the African Human Rights System 2004-6', (2007) 7 Human Rights Law Review 582 at 604-8.
86. Namely Articles 1, 2, 3, 4, 5, 6, 9, 10, 11 and 13 of the African Charter.
87. Zimbabwe Human Rights NGO Forum, supra n. 69 at para. 139.
88. Ibid.
89. Ibid. at para. 144.
90. However, this appeared to be required by the Commission: See ibid. at para. 163.
91. Ibid. at para 151.
92. Ibid. at 171.
93. The Commission does make an effort to do so with regard to the first two frameworks in paras 148-50. However, it seems more concerned with linking or enmeshing the two frameworks than in thoroughly analysing how they may correspond to, or interact with, each other.
94. For the African Commission decision on admissibility and the applicant's submissions on the merits, see: http://www.cohre.org/Sudan [last accessed 12 May 2009].
95. Provisions of the African Charter that have been invoked in the petition include Articles 4, 5, 6, 7, 12(1), 14, 16, 18(1) and 22.
96. ComESCR, General Comment No. 15, supra n. 1.
97. For instance, there has only been extremely limited implementation of the African Commission's findings in the SERAC case. For more information, see Amnesty International, 'Nigeria: Ten Years On: Injustice and Violence Haunt the Oil Delta', 2005, AI Index AFR 44/0 22/ 2005, available at: http://www.amnesty.org [last accessed 16 March 2009].
98. Beyani states that, on average, the African Commission disposes of two or three complaints per session: See Beyani, supra n. 69 at 595.
99. OAU CAB/LEG/66.6 (2003).
100. OAU CAB/LEG/24.9/49 (1990).
101. See further, Kane and Motala, 'The Creation of a New African Court of Justice and Human Rights', in Murray and Evans (eds), The African Charter on Human and Peoples' Rights: The System in Practice, 2nd edn (Cambridge: Cambridge University Press, 2008) 406.
102. Assembly/AU/Dec.193-207 (XI); 16 IHRR 599 (2009).
103. See also decision on the Single Legal Instrument on the Merger of the African Court on Human and Peoples' Rights and the African Court of Justice (Assembly/AU/13(XI)).
104. See Article 34(6) of the Protocol to the African Charter on Human and Peoples Rights on the Establishment of an African Court on Human and Peoples' Rights, OAU/LEG/EXP/AFCHPR/PROT (III) (1998).
105. Article 28(c). Article 3(1) of the Protocol to the African Charter on Human and Peoples' Rights on the Establishment of an African Court on Human and Peoples' Rights contained a similar provision.
106. UNTS 222;312 ETS 5.
107. An exception to this is the (negative) right to education set out in Article 2 of Protocol No.1 to the ECHR. For examples of the European Court dealing with this right, see Costello-Roberts v United Kingdom A 247-C (1993); 19 EHRR 112
108. Belgian Linguistics Case (No 1) A 5 (1967); 1 EHRR 241
109. Belgian Linguistics Case (No 2) A 6 (1968); 1 EHRR 252
110. and Timishev v Russia 44 EHRR 776.
111. The European Court touched on the issue of the duty to protect the right to education in Costello-Roberts. Here, the applicant had been subject to corporal punishment at an independent school that did not receive any state support. He argued that his rights under Articles 3, 8 and 13 had been violated. The European Court noted that the state has an obligation to secure to children their right to education under Article 2 of Protocol No. 1 and that the fundamental right of everyone to education is a right guaranteed equally to pupils in state-run and independent schools. It emphasised that the state cannot absolve itself from responsibility by delegating its obligations (whether educational or otherwise) to private bodies or individuals. In this case, however, the European Court did not find a violation of any European Convention right and Article 2 of Protocol No. 1 does not seem to have been relied on by the applicants.
112. Airey v Ireland A 32 (1979); 2 EHRR 305 at para. 26.
113. See further, Mantouvalou, 'Work and Private Life: Sidabras & Diautas v. Lithuania', (2005) 30 European Law Review 573 at 573-5.
114. See, however, N v UK 47 EHRR 39 at para. 44, where a majority of the European Court stated that '[A]lthough many of the rights [the Convention] contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights'. In contrast, the Dissenting Opinion (at para. 6) expressed concern that 'the [majority] adds worrying policy considerations based on an incomplete statement that the Convention is directed at the protection of civil and political rights, thus ignoring the social dimension of the integrated approach adopted by the Court, specifically in [Airey] and more recent case law'. In a recent stat ement, the President of the European Court explicitly acknowledged that the Court has extended its protection to certain economic and social rights; stated that the European Court has made incursions into the terrain of the European Social Charter; and highlighted the Court's use of Article 14 to afford protection to socio-economic rights: See Costa, 'The Appraisal of the European Court of Human Rights', speech given at the Regional Human Rights Courts Colloquium on the occasion of the 60th Anniversary of the Universal Declaration of Human Rights, Strasbourg, 8 December 2008.
115. See, for example, D v UK 1997-III; 24 EHRR 423 (Article 3)
116. Keenan v UK 2001-III; 33 EHRR 913 (Article 2)
117. Price v UK 2001-VIII; 34 EHRR 1285 (Article 3)
118. and Dybeku vAlbania Applic. No. 41153/06, 18 December 2007 (Article 3).
119. See, for example, Gaygusuz v Austria 1996-IV; 23 EHRR 364; Azinas v Cyprus 40 EHRR 8
120. Sukhobokov v Russia Applic. No. 75470/01, 13 April 2006
121. Müller v Austria Applic. No. 12555/03, 5 October 2006
122. Salesi v Italy A 257-E (1993); 26 EHRR 187
123. and Schuler-Zgraggen v Switzerland A 263 (1993); 16 EHRR 405.
124. See, for example, Connors v UK 40 EHRR 189 (Article 8)
125. Selçauk and Asker v Turkey 26 EHRR 477 (Articles 3 and 8 and Article 1 of Protocol No. 1)
126. Ayder and others v Turkey Applic. No. 23656/94, 6 January 2004
127. and Bilgin v Turkey 36 EHRR 50 (Articles 3 and 8 and Article 1 of Protocol No. 1).
128. See, for example, Thlimmenos v Greece 2000-IV; 31 EHRR 411
129. and Sidabras and Džiautas v Lithuania 2004-VIII; 42 EHRR 104.
130. Articles 1 and 13 of the European Convention set out the obligation to respect human rights and the right to an effective remedy respectively. Article 17 provides: '[n]othing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention'. (emphasis added)
131. Spielman, 'The European Convention on Human Rights', in Oliver and Fedtke, supra n. 12 at 428.
132. Ibid.
133. See Clapham, Human Rights Obligations of Non-State Actors (Oxford: Oxford University Press, 2006) at 352.
134. See, for example, Airey, supra n. 91 at para. 32
135. and McCann v UK A 324 (1995); 21 EHRR 97.
136. Supra n. 62.
137. Ibid. at para. 23 (emphasis added).
138. See also statements of the Court in Osman v UK 1998-III; 29 EHRR 245 at para. 115 (positive obligations imposed by Article 2)
139. and Siliadin v France 2005-VII; 43 EHRR 287 at para. 89 (positive obligations imposed by Article 4).
140. Cyprus v Turkey 2001-IV; 35 EHRR 731.
141. For a discussion of the positive obligations imposed by ECHR rights, see Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights (Oxford: Hart Publishing, 2004).
142. See, for example, Calvelli and Ciglio v Italy 2002-I. Here, the Court referred to its earlier Article 2 jurisprudence and reiterated that the first sentence of Article 2 enjoined the State not only to refrain from the 'intentional' taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. The Court (at para. 49) went on to state that those principles apply in the public health sphere too: 'The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable.' (emphasis added) For an example of the Court refusing to construe Article 2 so as to impose an obligation on states to provide certain forms of free health care, see Nitecki v Poland Applic. No. 65653/01, 12 March 2002; and Pantiacova v Moldova Applic. No. 14462/03, 4 January 2005.
143. López Ostra v Spain A 303-C (1994); 20 EHHR 277. The facts of this case are adapted from Nolan et al, supra n. 57 at 21.
144. For other similar cases, see Guerra and Others v Italy 1998-I; 26 EHRR 357
145. Taskin v Turkey 2004-X; 42 EHRR 1127
146. and Fadeyeva v Russia 2005-IV; 45 EHRR 295.
147. Mowbray, supra n. 105 at 220.
148. See Plattform 'Ärzte für das Leben' v Austria 44 DR 65 (1985); 13 EHRR 1 at 204 at para. 31.
149. Mowbray, ibid.
150. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (Oxford: Hart, 2007) at 62.
151. ETS 035.
152. ETS 163.
153. 31/2005, European Roma Rights Centre v Bulgaria 18 October 2006 at para. 35. Decisions of the European Committee are available at: http://www.coe.int/T/DGHL/Monitoring/Social Charter [last accessed 12 May 2009].
154. See, for example, Article 8(5) of the Revised Charter.
155. See, 15/2003, European Roma Rights Centre v Greece 15 December 2005 at footnote 3, where the European Committee relied on information from the ComESCR's Concluding Observations on Greece's 2002 periodic report; 30/2005, Marangopoulos Foundation for Human Rights (MFHR) v Greece 6 December 2006 at para. 196, where in clarifying its interpretation of the right to a healthy environment, the Committee also took account of the principles established in the jurisprudence of the ComESCR, the European Court, the Inter-American Court and the African Commission; and 23/2003, Syndicat occitan de l'éducation v France 8 December 2004 at para. 19 (quoting from complainant's arguments).
156. See 33/2006, International Movement ATD Fourth World v France 5 December 2007 at para. 70
157. and 39/2006, FENTSA v France 5 December 2007 at paras 66-7.
158. See, for example, 13/2002, Autisme-Europe v France 7 November 2003 at para. 52 (fleshing out Article E of the Revised Charter in light of Article 14 of the European Convention).
159. See further Cullen, 'The Collective Complaints System of the European Social Charter: Interpretative Methods of the European Committee of Social Rights' (2009) 9 Human Rights Law Review 61 at 72-4.
160. 1/1998, The International Commission of Jurists (ICJ) v Portugal 10 September 1999.
161. Ibid. at para. 27.
162. Ibid. at para. 28.
163. Ibid. at para. 43.
164. 21/2003, World Organisation against Torture (OMCT) v Belgium 26 January 2005
165. 20/2003, OMCT v Portugal 26 January 2005
166. 19/2003, OMCT v Italy 26 January 2005
167. 18/2005, OMCT v Ireland 26 January 2005
168. and 17/2003, OMCT v Greece 26 January 2005.
169. For example, in OMCT v Greece, ibid., the complainant alleged that Greece did not explicitly and effectively prohibit corporal punishment against children in secondary schools and other institutions and forms of care for children, as well as in the family. In OMCT v Ireland, ibid. where the complainant highlighted the state's failure to prohibit the corporal punishment of children in the home, foster care, residential homes and in the care of certain child minders.
170. OMCT v Belgium, supra n. 122 at para. 39.
171. According to the European Committee, domestic judicial interpretations by the Italian and Portuguese courts of particular legislative provisions essentially amounted to the prohibition of all forms of violence in those jurisdictions having a legislative basis.
172. Article 19 CRC requires states 'to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child'.
173. Supra n. 115.
174. 30/2005, 10 October 2005 at para. 14.
175. Supra n. 116 at para. 191.
176. Article 11 of the Charter. The European Committee also found that there had been violations of the right to reduced working hours or additional holidays for workers in dangerous or unhealthy occupations (Article 2) and a breach of the state's duty to ensure the effective exercise of the right to safe and healthy working conditions through the provision for enforcement of safety and health regulations by supervisory measures (Article 3(2)).
177. MFHR v Greece, supra n. 115 at para. 203.
178. See Velázquez-Rodriguez, supra n. 21 at paras 166 and 173.
179. Ibid. and X and Y, supra n.62.
180. Bearing in mind that the European Convention predated the ICESCR, its content or structure was not influenced by that instrument at all.
181. It should be noted, however, that Article 29(b) of the American Convention, which prohibits the Inter-American Court from interpreting any provision of the Convention in such a way as to restrict the exercise of any right recognised by virtue of the domestic laws of any state party or any treaty ratified by that state party, means, in practice, that in determining the substantive scope of the American Convention provisions in concrete national contexts, the Inter-American Court regularly brings the domestic laws of a state party, the work of other regional courts and the treaty law applicable to that state party, into play. See Melish, supra n. 33 at 377. This has not, however, occurred specifically in the context of the obligation to prevent/ protect ESR.
182. This has only occurred, however, in the minority of the African Commission's ESR decisions: See, for example, 54/91, 61/91, 98/93, 164/ 97-196/97 and 210/98, Malawi African Association and Others v Mauritania 13th Activity Report of the ACHPR (1999-2000); 8 IHRR 268 (2001) at para. 135.
183. In the early stages of the Commission's decision making, this was possibly due to the relatively poor quality of decisions rather than any deliberate strategy. In the Commission's most significant recent ESR decision, involving the right to the highest attainable standard of health, it made no reference to the ICESCR despite its reading the obligation on States Parties 'to take concrete and targeted steps, while taking full advantage of their available resources, to ensure that the right to health is fully realised in all its aspects without discrimination of any kind' into Article 16: 241/2001, Purohit and Moore v Gambia 16th Activity Report of the ACHPR (2002-03); 11 IHRR 257 (2004).
184. Nor did the Commission refer to the ICESCR in 25/89, 47/90, 56/91 and 100/93, Free Legal Assistance Group and Others v Zaire 9th Activity Report of the ACHPR (1995-96); 4 IHRR 89 (1997)
185. or in 39/90, Annette Pagnoulle (on behalf of Abdoulaye Mazou) v Cameroon 10th Activity Report of the ACHPR (1996-97); 3 IHRR 123 (1996).
186. See particularly Sections 3 and 5.
187. The interdependence, indivisibility and interrelationship of all human rights has been confirmed in, for example, the Vienna Declaration and Programme of Action 1993, 12 July 1993, A/CONF.157/23 (Article 5) and the Proclamation of Teheran, 13 May 1968, A/CONF.32/41 at 3 (1968) (para. 13).
188. For a discussion of the concept of interdependence in the context of human rights, see Scott, 'The Interdependence and Permeability of Human Rights Norms: Towards a Partial Fusion of the International Covenants on Human Rights' (1989) Osgoode Hall Law Journal 769 at 779-90.
189. For instance, the Human Rights Committee has held that the right to equality/non-discrimination in Article 26 of the International Covenant on Civil and Political Rights 1966, 999 UNTS 171, applies to the enjoyment of socio-economic rights, including social security benefits: see, for example, Zwaan-de Vries v The Netherlands (182/1984), CCPR/C/29/D/182/1984 (1987).
190. For a discussion of this in the Inter-American context, see Tinta, 'Justiciability of Economic, Social, and Cultural Rights in the Inter-American System of Protection of Human Rights: Beyond Traditional Paradigms and Notions', (2007) 29 Human Rights Quarterly 431.
191. I am grateful to Brice Dickson for highlighting this line of argument.
192. Fredman, Human Rights Transformed: Positive Rights and Positive Duties (Oxford: Oxford University Press, 2008) Chapter 2.
193. Ibid.