COMMITTEE ON ECONOMIC, SOCIALAND CULTURAL RIGHTSThirty-first sessionGeneva, 10-28 November 2003Item 3 of the provisional agenda

substantive issues arising in the implementation ofthe international covenant on economic, social and cultural rights

Day of General Discussion on article 6 of the Covenant: right to work(Monday, 24 November 2003)

Draft

General comment on the right to work (art. 6) of the InternationalCovenant on Economic, Social and Cultural Rights

Paper submitted by Mr. Philippe Texier, member of the Committeeon Economic, Social and Cultural Rights

The views expressed in this document are those of the author and do not necessarily reflect those of the United Nations.

GE.03-43880 (E) 031103 061103

Key The notes in italics are clarifications of the text (largely citations of articles from International Labour Organization conventions) and will not appear in the final text. In addition I haveon occasion in referring to an international instrument included the full text for easier understanding; this will not appear in the final text.

I. Introduction and Basic Premises

1.The right to work as a fundamental right is recognized in several international legal instruments. The International Labour Organization (ILO) itself is based on the idea that labour is not a commodity, and that poverty anywhere constitutes a danger to prosperity everywhere. The International Covenant on Economic, Social and Cultural Rights deals more comprehensively than any other instrument with this right, enunciated in its articles 6, 7, and 8. The right to work is a fundamental right per se, and one of the keys to the exercise of other rights inherent in the human person. Every individual has the right to be able to work, allowing him to live in dignity. The right to work contributes [both] to the survival of the individual and to that of his family, but also, inasmuch as work is freely chosen or accepted, to his development and recognition within his community. The right to work determines enjoyment of a group of rights enunciated in the International Covenant on Economic, Social and Cultural Rights.

2.The International Covenant on Economic, Social and Cultural Rights enunciates the right to work in a general sense in its article 6, and explicitly develops the individual dimension of the right to work through its recognition in article 7 of the right of everyone to the enjoyment of just and favourable conditions of work, and in particular to safe working conditions, and the collective dimension of the right to work in article 8, by enunciating the right of everyone to form trade unions and join the trade union of his choice, and the right of trade unions to function freely. In the drafting of article 6 of the Covenant, the Commission on Human Rights affirmed the need to recognize the right to work in a broad sense [preceding articles 7 and 8] by enunciating specific legal obligations and not a simple philosophical principle. Article 6 defines the right to work in a general and non-exhaustive manner. In article 1 of paragraph 6, States parties recognize “the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right”. In paragraph 2, they recognize that “to achieve the full realization of this right” the steps to be taken “shall include technical and vocational guidance and training programmes, policies and techniques to achieve steady economic, social and cultural development and full and productive employment under conditions safeguarding fundamental political and economic freedoms to the individual”.

3.These objectives reflect the fundamental purposes and principles of the United Nations, as defined in Article 1, paragraph 3, and Article 55 of the Charter of the United Nations. The essence of these objectives is also reflected in article 23, paragraph 1, of the Universal Declaration of Human Rights, which states that “everyone has the right to work, to freechoice of employment, to just and favourable conditions of work and to protection against unemployment”. Since the adoption of the Covenant by the General Assembly in 1966, several international and regional human rights instruments have recognized the right to work. At the international level, the right to work is enunciated in article 5, paragraph (e) (i), of the International Convention on the Elimination of All Forms of Racial Discrimination and in article 11, paragraph 1 (a), of the Convention on the Elimination of Discrimination against Women. Several regional instruments recognize the right to work in its general dimension,( ) including the European Social Charter of 1961 (art. 1) as amended, and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (art. 6,) which recognize the principle that respect for the right to work imposes on States parties an obligation to take measures aimed at the realization of full employment.( ) Similarly, the right to work has been proclaimed by the United Nations General Assembly in the Declaration on Social Progress and Development, in its resolution 2542 (XXIV) of 11 December 1969 (article 6). Realization of the right to work can be assured through various complementary measures, including the formulation of policies on training, on access to employment, on countering unemployment, and on the provision of unemployment benefits, as recommended and further developed by the International Labour Organization, or the adoption of specific legal instruments. Further, the right to work includes certain elements compliance with which is guaranteed by law, in particular the principle of non‑discrimination in access to employment, hiring, career progression, and dismissal, a right guaranteed by law in many national jurisdictions.

4.In accordance with the principle enunciated in paragraph 5 of the Vienna Declaration and Programme of Action, “all human rights are universal, indivisible and interdependent and interrelated”. The right to work is closely linked to and is interdependent with other human rights, and is thus dependent on their realization: this includes both social and civil and political rights. [These rights and freedoms, in particular, are intrinsic components of the right to work.] The right to work is inseparable from the inherent dignity of the human person, and is essential to the realization of other fundamental rights enunciated in the International Bill of Human Rights. The Committee, in paragraph 3 of its general comment No. 15, on the right to water, emphasizes that article 11, paragraph 1, of the Covenant recognizes “the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing”. Use of the word “including” indicates the non‑exhaustive nature of the list of rights. The right to work clearly falls within this list of rights.

5.Throughout the world, 180 million people are unemployed, 41 per cent of them young men and women. The right to work, as enunciated in the International Covenant on Economic, Social and Cultural Rights, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. [This definition illustrates the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the role of work in the personal development of the individual, but also more generally by including the individual in society.] Nevertheless, for millions of human beings throughout the world, full enjoyment of the right to freely chosen or accepted work remains a remote prospect. The Committee recognizes the existence of structural and other obstacles arising from international and other factors beyond the control of States which hinder the full implementation of article 6 in very many States parties.

6.With the aim of helping States parties to implement the Covenant and discharge their reporting obligations, this general comment deals with the normative content of article 6 (chap. II), the obligations of States parties (chap. III), violations (chap. V), and implementation at the national level (chap. VI), while the obligations of actors other than States parties are covered in chapter IV. The present general comment is based on the experience gained by the Committee over many years in its consideration of reports of States parties.

II. Normative Content (paras. 1 and 2) of article 6

7.The right to work should not be understood as an individual and (unconditional) right to obtain employment. The right to work implies both freedoms and rights. Paragraph 1 of article 6 contains an incomplete definition of the right to work, and paragraph 2 cites, by way of illustration and in a non‑exhaustive manner, examples of obligations incumbent upon States parties. The freedoms include the right of every human being to decide freely to accept or to choose work, which implies not being forced in any way whatsoever to exercise or engage in employment. The Committee reaffirms the prohibition of all forms of forced labour and the need for consent of the individual, however given.

8.[Access to decent work is one aspect of realization of the dignity of the person. Work as enunciated in article 6 of the Covenant must be such as to be decent work. Decent work is any work which respects the fundamental rights of the human person as well as the rights of workers, and which provides an income allowing the worker to earn a living for himself and his family. These fundamental rights include respect for the physical and mental integrity of the worker in the exercise of employment. By way of example, the Committee affirms its concern at sexual and psychological harassment, affecting for the most part women, and including the practice of surveillance and remote surveillance of workers.] In addition, among these rights are included the right of access to a system of protection guaranteeing each worker access to employment, and not to be unfairly deprived of employment, thereby affording him a living for himself and his family and contributing to his personal satisfaction. The Committee recalls ILO Convention No. 158 on Termination of Employment, which defines the lawfulness of dismissal in its article 4.

9.Emphasis must be placed on the interdependence of articles 6, 7 and 8 of the Covenant, and in particular article 7 in its definition of the concept of decent work. The characterization of decent work as understood by the Committee supposes that the work respects the fundamental rights of the worker. These rights are protected in part by article 7, enunciating the rights of workers in terms of conditions of work, safety and remuneration. Articles 7 and 8 will be the subject of separate general comments.

10.The Committee reaffirms the need for States parties to abolish, forbid and counter all forms of forced work, as enunciated in the Universal Declaration of Human Rights (art. 4), article 5 of the Slavery Convention and article 8 of the International Covenant on Civil and Political Civil Rights. The International Labour Organization defines forced labour as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily”.

11.High unemployment and the lack of secure employment are responsible for flexible practices inducing workers to take employment in the black economy. The State party must take the requisite legislative and administrative measures to reduce to the fullest extent possible the number of workers outside the formal economy, who as a result of that situation have no protection. Such measures must compel employers to respect labour legislation and declare their employees, thus enabling them to gain access to enjoyment of all the rights of workers, in particular those provided for in articles 6, 7 and 8 of the Covenant as implemented by States parties. The underlying approach to such measures must reflect the fact that people living in an informal economy do so for the most part because of the need to survive rather than out of choice. The Committee insists on the need for policies to encourage businesses to assume responsibility, and to promote microenterprises and self-employment. Governments must formulate and implement comprehensive policy approaches that will help the informal sector and workers to overcome the obstacles to the benefit of the security that legal recognition would give to businesses and to the creation of decent employment. Similarly, domestic work must be properly regulated by national legislation so that domestic workers enjoy the same level of protection as other workers.

12.The right to work in all its forms and at all levels implies the existence of the following interdependent, essential elements, implementation of which will depend on the conditions present in each State party:

(a)Availability. In each State party there must exist specialized services whose role it is to assist and support individuals to enable them to have access to the labour market and find (stable) employment;

(b)Accessibility. The labour market must be accessible to everyone under the jurisdiction of the State party. Accessibility comprises three intersecting dimensions:

Under its article 2, paragraph 2, and article 3, the Covenant prohibits any discrimination in access to and maintenance of employment on the grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, physical or mental disability, health status (including HIV/AIDS), sexual orientation, or civil, political, social or other status, which has the intention or effect of impairing or nullifying exercise of the right to work on a basis of equality. It is appropriate to reaffirm the principle set forth in article 2 of ILO Convention No. 111 that States parties should “declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof”. As emphasized in paragraph 18 of general comment No. 14, on the right to health, many measures, such as most strategies and programmes designed to eliminate employment‑related discrimination, can be pursued with minimum resource implications through the adoption, modification or abrogation of legislation or the dissemination of information. The Committee recalls that, even in times of severe resource constraints, vulnerable members of society must be protected by the adoption of relatively low-cost targeted programmes;

The right to work as defined in article 6 of the Covenant considers work as a constituent element in a life with dignity for the individual, in that it provides the economic resources to live. Physical accessibility is one dimension of accessibility to employment, as enunciated in paragraph 22 of general comment No. 5, on persons with disabilities. The State party has a duty to take the requisite measures for physical access by disabled persons to their employment so as to ensure that all have access to employment;

Accessibility of information: accessibility includes the right to research and to be informed of means of gaining access to employment through the establishment of information networks on the employment market at the local, regional and national levels;

(c)Acceptability and quality. As the Committee has already stated (paragraph 2 of the general comment), protection of the right to work incorporates several dimensions. Facilities, the workplace and more generally speaking the conditions of work of the worker are protected by the Covenant in articles 7 and 8.

Special topics of broad application

Disabled persons and the right to work

13.The Committee recalls the principle of non-discrimination in access to employment by disabled persons enunciated in its general comment No. 5, on persons with disabilities, and in particular paragraphs 20 to 24 relating to article 6, in particular the need for States parties to give active support to the integration into the regular labour market of persons suffering from disabilities. In fact “the ‘right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’ is not realized where the only real opportunity open to disabled workers is to work in so-called ‘sheltered’ facilities under sub-standard conditions”. States must take measures allowing disabled persons to secure and retain appropriate employment and to progress in their occupational field “according to their capabilities,” and thus to facilitate their integration or reintegration into society. [The Committee affirms the need to implement a national programme for the adoption of measures, in particular legislative measures, affirming the right of the disabled to work and have the status of workers.]

Older persons and the right to work

14.The Committee recalls its general comment No. 6, on the economic, social and cultural rights of older persons, and in particular the need to take measures to prevent discrimination on the ground of age in employment and occupation. [The Committee emphasizes the right of all workers to retirement beyond a certain age determined by the State party and the need to establish retirement preparation programmes and to ensure a decent end to their working life allowing older workers to cope with their new life.]

Women and the right to work

15.In the terms of article 3 of the Covenant, States parties undertake to “ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights”. The Committee recalls, in

order to break the vicious circle of poverty and discrimination against women which is transmitted from one generation to another, the need to formulate and implement a comprehensive national strategy to promote non-discrimination and equality of treatment of women in their right to work. In particular, the situation of pregnant women must not constitute an obstacle to employment and should not constitute justification for loss of employment. Lastly, emphasis must be placed on the link between the fact that women have less access to education than men and certain traditional cultures which compromise the opportunities for the employment and advancement of women.

Young people and the right to work

16.Passage to adulthood and access to a first job constitute an opportunity to escape poverty. Nevertheless, young women have more difficulty than young men in finding employment. States parties should implement national measures to promote and support young people, in particular young women, in access to employment.

Migrant workers and the right to work

17.The principle of non-discrimination and equality of treatment is set forth in particular in article 25 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. In addition, ILO Convention No. 143 concerning Migrant Workers of 1975 strongly encourages States parties to “declare and pursue a national policy designed to promote and to guarantee, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation (…) for persons who as migrant workers or as members of their families are lawfully within its territory”.

Children and the right to work

18.The protection of children at work falls under article 10 of the Covenant, which defines protection and assistance for the family, in particular young people and children. However, international human rights instruments adopted after the International Covenant on Economic, Social and Cultural Rights, such as the Convention on the Rights of the Child, have recognized the need to protect children and young people against any form of economic exploitation or forced labour. ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour of 1999, and in particular its article 3, which enumerates the worst forms of child labour, completes the international machinery on the prohibition of child labour. Lastly, the Committee recalls its general comment No. 14, and in particular paragraphs 22 and 23 on the right to health of children, and emphasizes the need to protect children from forms of work that are likely to interfere with the child’s development or physical or mental health.

19.The necessity must be reaffirmed of protecting children from economic exploitation and allowing them to pursue their full development through the measures indicated in article 6, paragraph 2, such as technical and vocational training. In this connection the Committee recalls its general comment No. 13, in particular the definition of technical and vocational education (paras. 15 and 16), which should be understood as a component of general education.

20. Limitations

[The Committee reaffirms the principle enunciated in article 4 of the Covenant that the rights enunciated in the Covenant may be subject only to such limitations as are determined by law only insofar 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.]

III. States parties’ obligations

General legal obligations

21.The principal obligation is to ensure the progressive realization of the full exercise of the right to work, which imposes the obligation to progress as quickly as possible towards the objective of full employment. While the Covenant provides for progressive realization and acknowledges the constraints due to the limits of available resources, it also imposes on States parties various obligations which are of immediate effect. States parties have immediate obligations in relation to work freely chosen or accepted: for example, the obligation to “guarantee” that it will be exercised “without discrimination of any kind” (art. 2, para. 2) and the obligation “to take steps” (art. 2, para. 1) towards the full realization of article 6. Such steps must be deliberate, concrete and targeted towards the full realization of the right to work.

22.The fact that realization of the right to work takes place over a period of time, that is that realization is “progressive”, should not be interpreted as depriving States parties’ obligations of all meaningful content. It means that States parties have a specific and continuing obligation “to move as expeditiously and effectively as possible” towards the full realization of article 6.

23.As with all other rights in the Covenant, there is a strong presumption that retrogressive measures taken in relation to the right to work, and in particular to dismissal, are not permissible. If any deliberately retrogressive measures are taken, the State party has the burden of proving that they have been introduced after consideration of all alternatives and that they are duly justified by reference to the totality of the rights provided for in the Covenant in the context of the full use of the State party’s maximum available resources.

24.The right to work, like all human rights, imposes three types or levels of obligation on States parties: the obligations to respect, protect and fulfil. The obligation to fulfil contains obligations to facilitate exercise of the right and the obligation to promote it. The obligation to respect the right to work requires States to refrain from interfering directly or indirectly with enjoyment of the right, while the obligation to fulfil the right to work requires the State to adopt appropriate legislative, administrative, budgetary, judicial, promotional and other measures to ensure its full realization.

25.The obligation to respect the right to work requires States parties to avoid measures that hinder or prevent enjoyment of the right. The obligation to protect the right places the protection and promotion of employment at the centre of national policy, and requires States parties to take measures that prevent third parties from interfering with the enjoyment of the right to work. The obligation to facilitate exercise of the right to work requires States to take positive measures that enable and assist individuals and communities to enjoy the right to work. Finally, States parties have an obligation to provide the right to work. As a general rule, States parties are obliged to provide a specific right in the Covenant when an individual or group is unable, for reasons beyond their control, to realize the right themselves by the means at their disposal. [However, the extent of this obligation is always subject to the text of the Covenant.]

Specific legal obligations

26.In particular, States are under the obligation to respect the right to work by, inter alia, refraining from denying or limiting equal access for all persons, especially vulnerable or marginalized individuals, including prisoners or detainees (on a voluntary basis), members of minorities, and migrant workers, to decent work. In particular, States parties are bound by the obligation to respect the right of women and young persons to have access to decent work, and thus to take measure to combat discrimination and to promote equal access and opportunity. The obligation to respect the right to work includes the responsibility of States to prohibit forced or compulsory labour, and respect therefor by non-State actors.

27.With regard to the obligations of States parties relating to child labour, protected by article 10 of the Covenant, the Committee recalls paragraph 55 of general comment No. 13, on the right to education, in which it declares that “States parties have an obligation to ensure that communities and families are not dependent on child labour. The Committee especially affirms the importance of education in eliminating child labour and the obligations set out in article 7, paragraph 2, of the Worst Forms of Child Labour Convention, 1999 (Convention No. 182). Additionally, given article 2, paragraph 2, States parties are obliged to remove gender and other stereotyping which impedes the educational access of girls, women and other disadvantaged groups”.

28.Obligations to protect include, inter alia, the duties of States to adopt legislation or to take other measures ensuring equal access to work, to ensure that privatization measures do not undermine employment, and to ensure that the general economic situation of the country and the region does not constitute a threat to the availability, accessibility, acceptability and quality of work. Further, the obligation to protect includes the implementation by the State of technical and vocational education plans to facilitate access to employment, as well as plans to counter unemployment. Lastly, specific measures to increase the flexibility of labour markets must not make work less stable or reduce social protection of the worker.

29.The obligation to fulfil require States parties, inter alia, to give sufficient (central) recognition to the right to work in national political and legal systems (preferably by way of legislative implementation), and to adopt a national policy on the right to work and a detailed plan for realizing that right. [States are bound to implement and ensure the development of technical and vocational training and education for young people in particular but also for the retraining of workers and improvement of their skills and knowledge through continuous training.] Lastly, implementation of the right to work requires formulation and implementation by the State party of an employment policy with a view to “stimulating economic growth and development, raising levels of living, meeting manpower requirements and overcoming unemployment and underemployment”.

30.The obligation to facilitate requires States inter alia to take positive measures that enable and assist individuals to enjoy the right to work. States parties are also obliged to provide a specific right contained in the Covenant when individuals or a group are unable, for reasons beyond their control, to realize that right themselves by the means at their disposal. The obligation to promote the right to work requires States to undertake actions that create, maintain and restore the right to work of the population. It is in this context that effective measures to increase the resources allocated to reducing the unemployment rate, in particular among women, the disadvantaged and marginalized, should be taken by States. [Further, the Committee emphasizes the need to establish a compensation mechanism in the event of loss of employment, as well as the obligation to take the requisite measures for the establishment of employment services (public or private) at the national and local levels.]

International obligations

31.[Globalization as an economic phenomenon is not in itself negative. Nevertheless, the Committee recalls the need for States parties to take appropriate additional measures to mitigate the negative effects of globalization, in particular, with regard to the right to work of particularly vulnerable persons.]

32.In its general comment No. 3, the Committee drew attention to the obligation of all States parties to take steps, individually and through international assistance and cooperation, especially economic and technical, towards the full realization of the rights recognized in the Covenant, such as the right to work. In the spirit of Article 56 of the Charter of the United Nations and specific provisions of the Covenant (arts. 2.1, 6, 22 and 23), States parties should recognize the essential role of international cooperation and comply with their commitment to take joint and separate action to achieve the full realization of the right to work. States parties should, through international agreements where appropriate, ensure that the right to work, as set forth in article 6 and also in article 7, including in the context of multinational corporations and production line work, is given appropriate attention [and consider the formulation of new international legal instruments to that end].

33.To comply with their international obligations in relation to article 6, States parties must respect enjoyment of the right to work in other countries, and prevent third parties from violating the right in other countries [if they are able to influence these third parties by way of legal or political means in accordance with the Charter of the United Nations and applicable international law]. In negotiations with financial institutions, States parties must ensure protection of the right to work of their population. Similarly, States parties that are members of international financial institutions, in particular the International Monetary Fund, the World Bank and regional development banks, should pay greater attention to the protection of the right to work in influencing the lending policies, credit agreements (structural adjustment plans) and international

measures of these institutions. The Committee emphasizes that the minimum obligations in connection with structural adjustment programmes suppose that the strategies, programmes and policies chosen do not have a disproportionate and negative impact on vulnerable groups, particularly women and young people.

Core obligations

34.Certain measures to be taken at the various levels of obligation of States parties are immediate, whereas others are long term, so as to progressively ensure full exercise of the right to work.

35.In its general comment No. 3, the Committee confirms that States parties have a core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights enunciated in the Covenant, including the right to work. In the context of article 6, this “core obligation” encompasses the obligation to ensure non-discrimination and equal protection of employment. Discrimination in the field of employment comprises a broad cluster of violations affecting all stages of life, from basic education to retirement. All discrimination can have a considerable impact on the work situation of individuals and groups. Accordingly, in the Committee’s view, these core obligations include at least the following obligations:

(a)To ensure the right of access to employment, especially for vulnerable or marginalized groups, permitting them to earn the means for a life with dignity;

(b)To avoid any measure [and in particular arbitrary measures] with the effect of increasing discrimination and unequal treatment in the private and public sectors or of weakening mechanisms for the protection of vulnerable individuals;

(c)To adopt and implement a national employment strategy and plan of action, based on and addressing the concerns of all workers, to be devised and periodically reviewed on the basis of a participatory and transparent process (inclusion of trade unions); they should comprise methods (indicators …) by which progress can be measured; the process by which the strategy and plan of action are devised, as well as their content, should pay particular attention to all vulnerable or marginalized groups.

IV. Obligations of actors other than States parties

36.While only States are parties to the Covenant and thus ultimately accountable for compliance with it, all members of society - individuals, families, local communities, non‑governmental organizations, civil society and private sector organizations - have responsibilities regarding realization of the right to work. The State must provide an environment which facilitates the discharge of these responsibilities. Private enterprises - national and multinational - while not bound by the Covenant, have a particular (fundamental or increasing) role to play in job creation, hiring policies, dismissals and non-discriminatory access to work. They must conduct their activities on the basis of a code of conduct or ethical charter promoting respect for the right to work, drawn up by joint agreement with government and civil

society. Such codes of conduct or ethical charters should recognize the labour standards enunciated by ILO and aim at increasing the awareness and responsibility of enterprises in the realization of the right to work.

37.The role of the United Nations agencies and programmes, and in particular the key function of the International Labour Organization in defence and realization of the right to work at the international, regional and country levels, is of particular importance. When formulating and implementing their national strategies on the right to work, States parties should avail themselves of the technical assistance and cooperation of the International Labour Organization. Further, when preparing their reports, States parties should use the extensive information and advisory services of ILO for data collection and disaggregation, and the development of indicators and benchmarks. In conformity with articles 22 and 23 of the Covenant, the International Labour Organization and the other specialized agencies of the United Nations (the United Nations Development Programme, the World Health Organization, the United Nations Children’s Fund, the United Nations Development Assistance Framework), the World Bank, regional development banks, the International Monetary Fund, the World Trade Organization and other relevant bodies within the United Nations system should cooperate effectively with States parties in relation to the implementation of the right to work at the national level, with due respect for their individual mandates. In particular, the international financial institutions, notably the International Monetary Fund and the World Bank, should pay greater attention to the protection of the right to work in their lending policies and credit agreements. In accordance with paragraph 9 of general comment No. 2, a particular effort must be made to ensure that the right to work is protected in all structural adjustment programmes. When examining the reports of States parties and their ability to meet their obligations under article 6, the Committee will consider the effects of the assistance provided by actors other than States parties. The adoption of a human rights-based approach by United Nations specialized agencies, programmes and bodies will greatly facilitate implementation of the right to work.

38.Trade unions [in accordance with article 8 of the Covenant] play a fundamental role in ensuring respect for the right to work at the local and national levels and in assisting States to discharge their obligations under article 6. The role of trade unions is fundamental, and will be considered by the Committee in its consideration of the reports of States parties.

V. Violations

39.It is important to distinguish the inability from the unwillingness of a State party to comply with its obligations under article 6. This follows from article 6, paragraph 1, which enunciates the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and article 2, paragraph 1, of the Covenant, which places an obligation on each State party to undertake the necessary measures “to the maximum of its available resources”. The obligations of a State party must be interpreted in the light of these two articles. A State which is unwilling to use the maximum of its available resources for the realization of the right to work is in violation of its obligations under article 6. Nevertheless, resource constraints may justify partial implementation of article 6, to the extent that the State demonstrates that it has used its resources to the maximum to discharge its obligation. Violations of the right to work can occur through the direct action of States or other entities regulated by States, or through a paucity of measures to promote hiring. Violations through acts of commission include the formal repeal or suspension of legislation necessary for continued enjoyment of the right to work; denial of access to work to particular individuals or groups, whether such discrimination is based on legislation or is proactive; the adoption of legislation or policies which are manifestly incompatible with pre-existing legal obligations in relation to the right to work; and the fact that the State does not regulate the activities of individuals or groups so as to prevent them from impeding the right of others to work.

Violations of the obligation to respect

40.Violations of the obligation to respect are those State actions, policies or laws that contravene the standards enunciated in article 6 of the Covenant and are likely to result in infringements of the right to work. In particular, any discrimination in access to the labour market or to means and entitlements for the obtaining of employment on the grounds of race, colour, sex, language, age, religion, political or other opinion, national or social origin, property, birth or any other situation with the aim of impairing the equal enjoyment or exercise of economic, social and cultural rights constitutes a violation of the Covenant. The prohibition in article 2, paragraph 2, of the Covenant is neither subject to progressive implementation nor dependent on available resources; it is directly applicable without reservation to all aspects of the right to work and is valid on all grounds on which international law prohibits the exercise of any discrimination whatsoever. The failure of the State to take into account its legal obligations regarding the right to work when entering into bilateral or multilateral agreements with other States, international organizations and other entities, such as multinational entities, constitutes a violation of its obligations.

41.The adoption of retrogressive measures in State policy on hiring may constitute a violation of article 6, and an infringement of the right to work - as may abrogation, denial of access to employment to particular individuals or groups, whether such discrimination is based on legislation or is proactive, suspension of the legislation necessary for the exercise of the right to work, or the adoption of laws or policies that are manifestly incompatible with pre-existing domestic or international legal obligations relating to the right to work (for example, institution of forced labour or the abrogation of legislation protecting the employee against unlawful dismissal).

Violations of the obligation to protect

42.Violations of the obligation to protect follow from the failure of a State to take all necessary measures to safeguard persons within their jurisdiction from infringements by third parties of the right to work. This category includes such omissions as the failure to regulate the activities of individuals, groups or corporations so as to prevent them from violating the right to work of others; the failure to protect workers; the failure to implement technical and vocational training procedures.

Violations of the obligation to fulfil

43.Violations of the obligation to fulfil occur through the failure of States parties to take all necessary steps to ensure the realization of the right to work. Examples include the failure to adopt or implement a national employment policy designed to ensure the right to work for everyone; insufficient expenditure or misallocation of public resources which results in the non‑enjoyment of the right to work by individuals or groups, particularly the vulnerable or marginalized; the failure to monitor the realization of the right to work at the national level, for example, by identifying right-to-work indicators and benchmarks.

Right-to-work indicators and benchmarks

44.Can a national employment strategy define indicators and benchmarks on the right to work? The indicators should be designed to monitor at the national level the discharge by the State party of its obligations under article 6, and should be based on international ILO indicators (rate of unemployment, underemployment, ratio of formal to informal work …). ILO has developed a number of benchmarks applicable to the preparation of labour statistics; these may be useful in the preparation of a national employment plan.

VI. Recommendations to States parties

45.The most appropriate ways and means of implementing the right to work will inevitably vary significantly from one State party to another. Each State will have some latitude in choosing its own approaches, but the Covenant clearly requires that each State party take whatever steps are necessary to ensure that everyone is free from unemployment and instability in employment, and as soon as possible can enjoy the right to work. Hence the need for a national strategy aimed at ensuring enjoyment by all of the right to work, that is the objective of full employment for all, the objectives of the strategy being defined on the basis of human rights principles and the need to define policies as well as indicators and benchmarks to measure exercise of the right to work. Such a national strategy also imposes a requirement to identify the resources available to the State for attainment of the objectives defined as well as the most cost‑effective means of using them.

46.States parties, once they have defined appropriate indicators, are invited to define national benchmarks for each indicator. The Committee, during its consideration of the periodic report, will conduct a kind of assessment study with the State party. That is, the Committee and the State party will, together, consider the set of indicators and the national benchmarks defining the objectives to be attained over the period covered by the following report. Over the following five years the State party will be able to use these national benchmarks to monitor implementation of article 6 more effectively. Then, during consideration of the report, the State party and the Committee will see whether or not the benchmarks have been attained and reasons for any difficulties.

47.Formulation and implementation of a strategy and national plan of action on employment must in particular respect the principles of non-discrimination and broad participation. Specifically, the right of individuals and groups to participate in decisions affecting development must be an integral part of all policies, programmes and strategies intended to implement the obligations of the State under article 6. The promotion of employment necessarily involves effective involvement of the community, and more specifically associations for the defence of the rights of workers and trade unions in the definition of priorities, taking of decisions, planning, and implementation and evaluation of the strategy to promote employment. It is possible to implement well-functioning employment assistance services only if the State involves the population.

48.The formulation and implementation of national strategies on the right to work involve full respect for the principles of responsibility, transparency, participation by the people, decentralization, efficiency by the legislature and independence of the judiciary. Good governance is essential to the realization of all human rights, including the elimination of poverty and guarantee of a satisfactory standard of living permitting the development of every individual. To create a climate propitious to enjoyment of the right to work, States parties must take appropriate measures to ensure that both the private and public sectors reflect an awareness of the right to work in their activities and of the importance it merits. Implementation of such a strategy will facilitate coordination between ministries and regional and local authorities and ensure that related policies and administrative decisions are in compliance with the obligations under article 6 of the Covenant.

49.The strategy must take particular account of the need to prevent discrimination in access to employment. It must offer guarantees of full and equal access to economic resources, and to technical and vocational training, particularly for women, individuals in difficulty in society, the vulnerable and the marginalized, and measures to ensure respect for and protect self-employment and employment providing a level of remuneration offering a decent living for employees and their families (as stipulated in article 7 (a) (ii) of the Covenant).

50.In implementing the country-specific strategies referred to above, States should set verifiable benchmarks for subsequent national and international monitoring. [In this connection States should consider the adoption of legislation as a major instrument in the implementation of the national strategy concerning the right to work. The legislation should establish national mechanisms to monitor implementation of the strategy and national plan of action on the right to work. It should contain provisions on numerical targets and a time frame for implementation; on means of ensuring compliance with the benchmarks established at the national level; on the involvement of civil society, including experts on labour issues, the private sector and international organizations; and on institutional responsibility for implementation of the national strategy and plan of action, and possible recourse procedures. In monitoring progress in realization of the right to work, States parties should identify the factors and difficulties affecting the implementation of their obligations. States parties should also actively involve civil society organizations in formulating these benchmarks and legislation.]

51.Appropriate United Nations programmes and agencies should assist, upon request, in drafting the legislation and in reviewing sectoral legislation. ILO, for example, has considerable expertise and accumulated knowledge concerning legislation in the field of employment. (UNICEF has equivalent expertise concerning legislation on child labour).

Monitoring

52.States parties should develop and maintain mechanisms to monitor progress towards the realization of the right to feely chosen or accepted employment, to identify the factors and difficulties affecting the degree of implementation of their obligations, and to facilitate the adoption of corrective legislative and administrative measures, including measures to implement their obligations under articles 2.1 and 23 of the Covenant.

Remedies and accountability

53. Any person or group who is a victim of a violation of the right to work should have access to effective judicial or other appropriate remedies at both the national and international levels. Victims should also enjoy the right to reparation. At the national level trade unions and human rights commissions must play a key role in defending the right to work. All victims of such violations are entitled to adequate reparation, which may take the form of restitution, compensation, satisfaction or guarantees of non-repetition.

54. Incorporation in the domestic legal order of international instruments setting forth the right to work, in particular the relevant ILO conventions, should strengthen the effectiveness of measures taken to guarantee the right to work, and is to be strongly encouraged. This makes the courts competent to rule on violations of the right to work, in particular where national legislation is defective. The incorporation in the domestic legal order of international instruments recognizing the right to work, or recognition of their applicability, can significantly enhance the scope and effectiveness of remedial measures and should be encouraged in all cases. Courts would then be empowered to adjudicate violations of the core content of the right to work by direct reference to obligations under the Covenant.

55.Judges and other members of the legal profession are invited to pay greater attention to violations of the right to work in the exercise of their functions.

56.States parties should respect and protect the work of human rights advocates and other members of civil society, in particular the trade unions protected under article 8 of the Covenant, which assist vulnerable groups in the realization of their right to work.

Notes