Treaty Review of The International Covenant On Economic, Social and Cultural Rights

The Covenant was adopted by the United Nations General Assembly on December 16, 1966 and it came into force on January 3, 1976. As of 2015, the Covenant has 70 signatories and 164 parties. Pakistan signed the Covenant on November 3, 2004 and ratified it on April 17, 2008.

The International Covenant on Economic, Social and Cultural Rights (ICESCR) is a multilateral treaty aimed to commit its parties to work towards the promotion of economic, social and cultural rights. The Covenant aims to provide rights such as the right to health, right to education, right to social security, labour rights and right to an adequate standard of living. The implementation of the Covenant is monitored by a body of human rights experts known asthe Committee on Economic, Social and Cultural Rights. All state parties are required to submit regular reports to the Committee, outlining the legislative, judicial, policy and other measures taken to implement the rights given in the Covenant.

*Basic Structure of the Covenant

The Covenant begins with a preamble laying out its general message and is further divided into five parts which includes thirty one articles.

Part 1: Article 1 lays down the right of all peoples to self determination, which includes the right to “freely determine their political status”, pursue their economic, social and cultural goals and the right to manage and dispose of their own resources. In no circumstances whatsoever, may people be deprived of their means of subsistence. It further imposes an obligation on state parties to promote and respect their right of self determination.

Part 2: Articles 2-5 develop the principle of “progressive realization” compelling the parties to “take steps… to the maximum of its available resources, with a view to achieving the full realization of the rights recognized in the present Covenant by all appropriate means” (Article 2). This requires that, although it may be difficult to entirely implement some of the rights within a short span of time, the parties shall perform to the best of their abilities and within their means to implement them.  This Article further requires the rights of the Covenant to be implemented “without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” (Article 2 {2} ).

Article 3 ensures the equal right of men and women to the enjoyment of economic, social and cultural rights contained in the Covenant. The rights set forth in the Covenant can only be limited by law, in a manner compatible with the nature of rights, and only for the purpose of “promoting the general welfare in a democratic society” (Article 4).

Part 3 (Articles 6-15) lists the rights set forth in the Covenant which includes:

Article 6, 7, and 8: The right to “work” under “just and favourable conditions” and the right to form trade unions

Article 9: The right to social security, including social insurance

Article 10: The right to family protections, marriage only by consent, and leave for new mothers and protection of children from exploitation

Article 11: The right to an adequate standard of living, including adequate food, clothing and housing, and the “continuous improvement of living conditions”

Article 12: The right to the highest attainable standard of health

Article 13: The right to education

Article 14: States shall make primary education compulsory and free of charge

Article 15: The right of everyone to take part in cultural life and enjoy the benefits of scientific progress

Part 4: Articles 16-25 govern the reporting and monitoring of the Covenant and the steps required to be taken by state parties to implement it. It allows the monitoring body, The Committee on Economic, Social and Cultural Rights to make general recommendations to the UN General Assembly on the measures taken and the progress made by the State parties in achieving general observance of the rights recognized in the present Covenant.

Part 5: Articles 26-31 govern ratification, entry into force and amendment of the Covenant.

Optional Protocol: The Optional Protocol to the International Covenant on Economic, Social and Cultural Rights is a side agreement to the Covenant which allows its parties to recognize the competence of the Committee on Economic, Social and Cultural Rights to consider complaints from individuals.

The Optional Protocol was adopted by the UN General Assembly on December 10, 2008. It was open for signature on September 24, 2009 and was entered into force on May 5, 2013.

*ICESCR AND PAKISTAN

Pakistan has a general reservation to interpret the Covenant within the framework of its constitution.

The Constitution of Pakistan 1973 does not include an extended list of socio-economic rights under Chapter 1 on Fundamental Rights. However, the right to education is now expressly recognized in Article 25A inserted through the 18th Amendment. Article 22 (Safeguards to Educational Institutions in Respect of Religion) and Article 28 (preservation of language, script and culture recognize what are normally considered cultural rights). In addition, the Constitution provides for freedom from slavery and forced labour (Article 11); freedom of trade, business or profession (Article 18); safeguards against taxation for the propagation of a religion other than one’s own (Article 21); right not to receive religious instructions in an educational institution except those related to one’s own religion (Article 22); and finally the right to property (Article 23 and 24).

The Principles of Policy (Articles 29-40) call upon the State to “make provision for the just and humane conditions of work; to provide basic necessities of life such as food, clothing, housing, education and medical relief” without discrimination; and “to reduce disparity in income and earnings”. Furthermore, the Constitution of Pakistan 1973 requires the discouragement of parochial prejudices (Article 33), take steps to ensure participation of women in national life (Article 34), protect the institution of the marriage and the family (Article 35), protect minorities (Article 36), promote social justice (Article 37) and promote social and economic well being of the people (Article 38).  Therefore, various provisions and policy principles of the Constitution of Pakistan 1973 reflect the provisions set forth in the International Covenant on Economic, Social and Cultural Rights.

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RSIL

Research Society of International Law (RSIL) provides a perspective on both theoretical and practical applications of international law through analytical writing to both domestic and international stakeholders including the Government of Pakistan, non-governmental organizations, the legal fraternity, the media and the academia of Pakistan. It is the only international law think tank in Pakistan.



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