Committee on Economic, Social and Cultural Rights

Sixty-first session

Summary record of the 16th meeting

Held at the Palais Wilson, Geneva, on Wednesday, 31 May 2017, at 3 p.m.

Chair:Ms. Bras Gomes

Contents

Consideration of reports (continued)

(a)Reports submitted by States parties in accordance with articles 16 and 17 of the Covenant (continued)

Fifth periodic report of Uruguay

The meeting was called to order at 3 p.m.

Consideration of reports (continued)

(a)Reports submitted by States parties in accordance with articles 16 and 17 of the Covenant (continued)

Fifth periodic report of Uruguay (E/C.12/URY/5; E/C.12/URY/Q/5 and Add.1)

At the invitation of the Chair, the delegation of Uruguay took places at the Committee table.

Mr. González Arenas (Uruguay), introducing the fifth periodic report of Uruguay (E/C.12/URY/5), said that Uruguay had acceded to all international human rights instruments and maintained a standing invitation for visits by all United Nations human rights mandate holders. The country’s commitment to human rights was a guiding principle of its foreign policy and underpinned its public policies and legislation and the decisions of its courts. Uruguay was currently up to date in its reporting to the human rights treaty bodies. The country had received a large number of observations and recommendations from the treaty bodies, special mechanisms and the universal periodic review. In 2016 the Government had established a permanent inter-institutional mechanism for follow-up on recommendations and drafting of future reports.

Thanks to a period of healthy economic development, since the submission of the previous State party report in 2010 (E/C.12/URY/3-4) the country had succeeded in reducing poverty and had nearly eliminated extreme poverty. Public policies fuelling economic growth and ensuring stability, coupled with others aimed at promoting equity and social inclusion, investment in education and a reform of the health system, had improved quality of life for Uruguayans and enhanced their enjoyment of their rights, including those covered by the Covenant.

Nevertheless, the Government was aware of the need to consolidate the progress made and to tackle new challenges in combating various forms of discrimination and in fostering equality. The serious economic crisis of the early 2000s had left lasting scars on Uruguayan society, and there was still much to be done to ensure the full enjoyment of the entire range of economic, social and cultural rights by all, including persons with disabilities, people of African descent, migrants, children, women in rural areas and members of the lesbian, gay, bisexual, transsexual, and intersex (LGBTI) community.

He was pleased to report that Uruguay had implemented a number of the recommendations issued by the Committee in 2010. It had, for example, launched the National Human Rights Institution, conducted a national census in 2011, improved the collection of statistical information relating to the rights covered by the Covenant, adopted laws protecting the rights of persons with disabilities, put in place measures to improve the integration of Uruguayans of African descent in the education and employment spheres and eliminated the discrepancy between women and men in the minimum age for marriage

Mr. Mancisidor de la Fuente (Country Rapporteur), welcoming the fact that the State party delegation included a member of the judiciary, said that he was pleased to note that the discussion with the State party would be transmitted live, which bore witness to the transparency of the process and would also serve as a tool for the dissemination of information on the Covenant rights. Uruguay had the highest literacy rate in Latin America, low indicators of corruption, a good human rights record and a favourable rating on the human development index of the United Nations Development Programme. Its economic growth had contributed to greater equality, and in its foreign affairs it had supported human rights in general and the Covenant and its Optional Protocol in particular.

Although the State party had indicated in its replies to the list of issues (E/C.12/URY/Q/5/Add.1) that the Covenant had been directly applied in various cases, he understood that there were still some impediments to its application. If that was the case, was it because a normative framework was needed to ensure that the Covenant could be applied directly under domestic law, or was the problem lack of awareness or insufficient training among lawyers and judges?

The Committee would like to hear how the periodic report had been drafted and whether members of the legislative or judicial branches and civil society had been involved. It would also like to know whether there was a specific procedure for follow-up on its concluding observations. While recognizing the progress the State party had made in enhancing equality, the Committee was concerned about reports of discrimination, notably against persons of African descent. It had also received information indicating that child poverty was a serious problem in Uruguay. Differences in the enjoyment of rights between the population in the capital and people living in more remote or rural areas were also of concern. In addition, the Committee had learned of extensive delays in the issuance of identity papers for migrants arriving in the country, which undermined their enjoyment of their rights. He welcomed the establishment of the Honorary Commission against Racism, Xenophobia and All Other Forms of Discrimination, which was able to receive complaints of discrimination; however, he was concerned that the Commission’s status as an honorary body left it without sufficient resources and without a clear mandate and authority.

The Committee had heard that a bill to combat gender-based violence was under consideration, but its adoption appeared to be in doubt. The Committee would appreciate an update on the status of the bill.

Mr. Tovagliare (Uruguay) said that, once ratified, international instruments automatically became part of the domestic legal order and were directly justiciable. Article 72 of the Constitution recognized that all rights inherent to the human person or derived from a republican form of government had constitutional status, regardless of whether they were set out explicitly in the Constitution. Since the 1950s, all rights enshrined in human rights conventions had been considered to have constitutional status under that provision. Article 332 of the Constitution established that a right enshrined in the Constitution or with constitutional status must be enforced, regardless of whether specific implementing legislation giving effect to the right was in place.

In 2002, the Supreme Court had also recognized the constitutional standing of the rights set out by international treaties. Direct application of international treaties was not the prerogative of the Supreme Court alone, however. They could be applied by any judge at any level. In courts that heard amparo cases, for example, the provisions of international conventions were regularly and directly applied. Numerous examples of cases in which the Covenant had been directly applied could be found by searching on the website of the Ministry of Justice. The delegation could also provide the Committee with a list of such cases. Magistrates and judges received both initial training and continuing education that included specific modules on human rights and direct application of human rights treaties.

Ms. Costa (Uruguay) said that both government bodies and civil society organizations had taken part in drafting the periodic report and the replies to the list of issues, although responsibility for the content ultimately resided with the Government. Once the replies had been drafted, they had been discussed at a meeting held at the Ministry of Foreign Affairs, in which numerous civil society organizations had participated. A follow-up mechanism for implementation of recommendations from international human rights bodies had been established by presidential decree in 2016, with assistance from the Office of the United Nations High Commissioner for Human Rights, the United Nations Development Programme and the Uruguayan International Cooperation Agency. It brought together some 30 national and local institutions and helped to identify which bodies had the greatest authority and most relevant mandates for the implementation of recommendations. The mechanism also followed up on the policies and measures that were implemented and assessed their effectiveness.

Mr. Villar r eal (Uruguay) said that the Honorary Commission received funding through the Ministry of Education and Culture. The State supported affirmative action to help disadvantaged groups such as Uruguayans of African descent and people living with disabilities to enjoy their economic, social and cultural rights. A 2015-2020 plan of action had been drawn up with civil society organizations for the implementation of Act No. 19122, which provided for special temporary measures for persons of African Descent. The impact of the law had been uneven; nevertheless, there had been an increase in the number of scholarships awarded to students of African descent and the number of applicants of African descent accepted into the civil service had risen from 7 to 10 per cent from 2015 to 2016.

Mr. Graña (Uruguay), acknowledging that a gap in the enjoyment of rights existed between Uruguayans of African descent and other Uruguayans, said that civil society organizations and the Committee on the Elimination of Racial Discrimination had both requested the Government to collect statistics that took account of race and ethnicity in order to document the gap. Uruguay had recently begun implementing affirmative action policies intended to improve the situation of Uruguayans of African descent. Statistics from 2015 indicated that the proportion of Afro-Uruguayans had recently increased in the executive branch, but fallen in the judiciary, the parliament and local administrations. The Ministry of Social Development had a commission that monitored affirmative action programmes, and it would be pleased to receive recommendations from the Committee on how best to meet quota targets.

The submission of the bill on gender-based violence had helped to raise awareness of the problem. Its text emphasized the importance of prevention, care for victims and access to the justice system and to reparation. The bill had been drafted with the participation of the National Advisory Council on Domestic Violence and had been put forward by the executive branch. It was currently before the Senate. It would be helpful if the Committee recommended the adoption of the bill.

Because official statistics included no information on transgender and transsexual persons, the Government had conducted a national census of that group in 2016 with the aim of making it more visible and reducing the exclusion of transgender persons in Uruguayan society. The results of the census were still being tabulated. A bill had been drafted to assist transgender and transsexual persons by providing for quotas and scholarships and in some cases reparations for individuals whose rights had been undermined by State actions.

Mr. Villar r eal (Uruguay) said that the child poverty rate had declined from 47 to 23 per cent from 2006 to 2016, thanks in part to the country’s macroeconomic and social investment policies. Child poverty remained most persistent among Uruguayans of African descent but it had also declined substantially among that group in the previous 10 years.

Mr. González Arenas (Uruguay) said that the influx of migrants into Uruguay posed a challenge for the Government, as domestic law quite clearly stated that migrants had the same entitlements as citizens.

Ms. Costa (Uruguay) said that, as Uruguay had gone from being a country of origin to a country of destination for migrants, it had been inundated with applications for residency. Citizens from the member States of the Southern Common Market (MERCOSUR) generally received identity papers rapidly, sometimes within a day. Persons from other countries faced much longer waiting periods. The National Migration Directorate was striving to reduce the waiting time.

Ms. Motta (Uruguay) said that an effort had been made to decentralize the national Government, in particular the education system, with a view to providing the same level of service to all inhabitants of the country. The decentralization effort had also extended to health and social services.

Mr. Sadi asked to what extent human rights education activities in practice addressed the rights covered by the Covenant. The Committee would appreciate specific examples of cases in which economic, social and cultural rights had been protected by the State party’s institutions. He would also like specific information on the action taken to implement the Committee’s recommendations. The Committee’s general comment No. 9 (1997) on the domestic application of the Covenant pointed to the need for States parties to ensure that certain provisions were implemented with immediate effect and to take steps to ensure the progressive implementation of the rest. While the legal status of the Covenant was of course of interest to the Committee, it wished to be assured that the Covenant was also of practical relevance to policymakers and government ministers and was in fact taken into consideration in the formulation of policies.

Mr. Uprimny said that the State party was to be commended for its innovations and progress with respect to social rights. There was always room for improvement, however. For example, civil society organizations had drawn the Committee’s attention to the fact that the right of amparo was recognized as an individual right, but not as a collective right. They had also pointed out that they faced obstacles in the submission of amicus briefs during amparo proceedings, as the courts had argued that civil society organizations submitting such briefs would be participating as third parties. Lastly, they had complained that the right of amparo was applicable in respect of certain administrative actions, but not other State actions. Did the State party intend to change the legal provisions to provide broader and more consistent access to amparo proceedings for the protection of economic, social and cultural rights?

The Committee on the Rights of Persons with Disabilities had issued a recommendation calling on the State party to ensure that the denial of reasonable accommodation was recognized as a form of discrimination against persons with disabilities. Had the Government taken steps to implement that recommendation? Lastly, Uruguay apparently lacked a general law prohibiting discrimination in all its forms. Was there any intention to adopt such a law?

Ms. Crăciunean-Tatu (Country Task Force) said that she would appreciate more information on how the Government envisaged the decentralization of education services.

Mr. Mancisidor de la Fuente said that the fact that the Honorary Commission received financial resources from the Ministry of Education and Culture would not ensure its effectiveness if it was not endowed with a sufficient mandate or authority to deal with the complaints it received. Discrimination against persons of African descent should be addressed not only through hiring or employment by State actors, but also through State actions to ensure that the rights of Uruguayans of African descent were recognized and upheld in the private sector. He would like to know whether there were there any policies or programmes to ensure recognition of the rights of Uruguayan migrants who had left the country and subsequently returned. He also wished to know whether any efforts were under way to remove outdated, gender-discriminatory legal provisions, such as those that imposed waiting periods on women for remarriage in the event of divorce or the death of a spouse or references in the Criminal Code to “decent” single, divorced or widowed women.

Mr. González Arenas (Uruguay) said that many of the Committee’s recommendations had been implemented. For example, an autonomous national human rights institution with a board of directors and its own budget had been set up. Statistical monitoring of the enjoyment of economic, social and cultural rights had improved as a result of the collection of disaggregated data, which had also made it possible to draw up targeted policies to address specific needs. Legislation on the rights of persons with disabilities, including their right to work, had been adopted, and measures had been taken to enforce the education and employment rights of Uruguayans of African descent, including through affirmative action policies. The difference in the minimum age for marriage of boys and girls had been eliminated. The Government would continue working to implement all outstanding recommendations.

Mr. Villar r eal (Uruguay) said that public policy in the past decade had concentrated on raising awareness of the historical disadvantages and discrimination suffered by certain groups. As a result, the difficulties faced by persons of African descent were now acknowledged, but it would take time to close all gaps in the enjoyment of economic, social and cultural rights. In the past decade Uruguay had implemented structural reforms and had linked them to reforms in the tax system, thus freeing up significant resources to be used in support of the rights covered by the Covenant. The health system had been reformed in 2005 to cover the entire population. The education system, too, had been the subject of extensive reform.

Although the Honorary Commission had relatively limited resources at its disposal, it enjoyed significant support from the Ministry of Education and Culture and other government ministries, and that support was likely to increase.

Mr. Tovagliare (Uruguay) said that there was no doubt among jurists that the Covenant could be invoked at all levels of the justice system and in all types of proceedings. There were numerous examples of cases in which the Covenant had been applied directly. For example, persons who had been denied access to certain expensive medicines that were not included on an officially approved list had successfully brought amparo proceedings in Uruguayan courts, arguing that the denial of access to such drugs jeopardized their rights under the Covenant, and the court rulings in those cases had cited the Covenant, specifically the provisions relating to the right to health. Labour law specialists and judges had made similar references to the Covenant in their proceedings and rulings, as had the Supreme Court.

There had indeed been a case where a court had rejected an amicus curiae brief, but that decision had not been a binding or set a precedent for other courts, nor had it been based on any piece of legislation. Uruguayan procedural law did not specifically preclude collective action in amparo cases. He was not aware of any collective amparo actions to date, but there was nothing to prevent someone from bringing such an action.

Mr. Villar r eal (Uruguay) said that wage boards established as part of the labour reform process had strengthened worker participation. New mechanisms of civil society participation had also emerged. A national human rights education plan had been launched in 2016, with the participation of civil society.

Ms. Motta (Uruguay) said that the human rights education plan was currently being implemented in all public educational institutions. The organization of the education system was somewhat different from that in other States. The Ministry of Education and Culture coordinated actions in the area of education, but responsibility for formal compulsory education, teacher training and technological training rested with the National Public Education Administration, an autonomous body which included four decentralized councils. Departmental commissions were responsible for adapting national education policy and designing education plans in line with local needs. The members of those commissions would receive training in 2017 so that they could better perform their duties. The decentralization of the education system had made it possible to increase access to secondary education, which was something the Committee had recommended in its previous concluding observations.

Ms. Costa (Uruguay) said that the refusal to provide reasonable accommodation was not considered a form of discrimination under current legislation. However, a national plan for access to justice and legal protection for persons with disabilities, which provided for reasonable accommodation, was currently being implemented. In addition, a bill to promote the hiring of persons with disabilities was currently before parliament; it would establish a 4 per cent hiring quota for some private-sector employers. The recommendations of the Committee on the Rights of Persons with Disabilities were being used as guidance for efforts to advance the rights of persons with disabilities.

Mr. Graña (Uruguay) said that legal steps taken to fight discrimination included amendments to the Code of Criminal Procedure, which would come into effect in the second half of 2017. They introduced two key developments: the establishment of a discrimination victim protection unit and the introduction of a negotiation system, which provided alternatives to criminal proceedings for victims of discrimination. There were also a number of policies that supported inclusive measures. Legislation on affirmative action had introduced a points system to reward the inclusion of Afro-descendants and other minorities in investment projects, while legislation on youth employment promoted the hiring of Afro-descendants, young people, women and transgendered persons. It would be useful if the Committee recommended further action to promote affirmative action measures applicable to the private sector.

Mr. González Arenas (Uruguay) said that, contrary to the situation in rich countries, employment opportunities had increased in Uruguay during the recent global economic crisis. As a result, there had been an influx of returning expatriates whose reintegration into Uruguayan society the Government had sought to facilitate by, among other measures, creating a special office within the Ministry of Foreign Affairs to attend to their needs and enable them to exercise their economic, social and cultural rights.

Ms. Costa (Uruguay) said that the country’s accession to the 1961 Convention Abolishing the Requirement of Legalisation for Foreign Public Documents had greatly facilitated return procedures for expatriates. Other concrete steps taken included the signing of social security agreements with the countries that had the largest populations of Uruguayan expatriates and the enactment of legislation enabling them to repatriate their assets and granting Uruguayan nationality to foreign-born grandchildren of Uruguayans.

Ms. Goyeneche (Uruguay) said that the Equal Marriage Act had raised the minimum age of marriage for both females and males to 16 years. Although that was not the age recommended by the Committee, namely 18 years, the change was still a step forward. The Act also stipulated that in all laws and regulations relating to marriage, all gender-specific language should be replaced by gender-neutral language so as not to discriminate against, inter alia, LGBTI persons.

Some criminal laws dating back to 1934 did contain provisions that were discriminatory against women. The bill on gender-based violence, in line with international recommendations, would effectively eliminate those provisions and establish regulations that reflected the current reality, classifying the various forms of sexual harassment as criminal offences, for instance. It would also criminalize domestic violence and femicide. The enactment of the new law was an urgent priority for the Government.

Mr. Villar r eal (Uruguay) said that, according to a report by the Ministry of Social Development, some 18,000 immigrants, mostly from the MERCOSUR region, were expected to arrive in the country in 2017. Uruguay had welcomed refugees from the Syrian Arab Republic and other countries.

Mr. Zerbini Ribeiro Leão (Country Task Force) said that it would be useful to know whether the National Employment Promotion Strategy had increased and improved the quality of employment and, if so, whether the State party had any corroborative statistics to that effect. It would also be interesting to learn whether there were data to confirm that the two strategic objectives set to combat unemployment and informal-sector work had been achieved. Details on progress in the prevention and punishment of sexual harassment would be appreciated as well. He would welcome additional information on the specific measures taken to increase the employability of persons with disabilities, particularly in the private sector, and on the specific measures taken to protect the health- and education-related rights of such persons. He would also like to hear more about the measures taken to combat workplace discrimination against people of African descent.

He wished to know what action had been taken to close the wage gap between men and women and to address wage gaps affecting immigrants and young people. He would be grateful if the delegation could provide a description of the legal framework applicable to the right to strike and to the right to organize. It would be helpful to know whether the average non-contributory pension had increased enough to provide a person with a basic standard of living. Additional information on non-contributory social security programmes and their coverage would be appreciated.

The meeting was suspended at 5 p.m. and resumed at 5.15 p.m.

Mr. Villar r eal (Uruguay) said that employment rates had shown a positive trend overall between 2006 and 2015. The labour market participation rate had increased on account of greater participation by women in the workforce. The labour participation rate among women had risen from 43.7 per cent in 2006 to 50.5 per cent in 2015. Although the gap between men and women had decreased during the period in question, men had continued to have a higher labour participation rate than women. The employment rate among the Afro-descendant population had been slightly higher than among other population groups, (59.6 per cent compared with 58.9 per cent in 2015), but most of the growth in labour force participation among Afro-Uruguayans had occurred in low-skill occupations. Moreover, unemployment among Afro-Uruguayans had consistently been higher than among other groups. Between 2011 and 2014, the overall unemployment rate had remained at a record low of around 6.5 per cent, although it had later risen. While the unemployment rate had been higher among women than among men, the gap had reached its narrowest point in 2015. Unemployment and underemployment rates had remained consistently higher among young people than among older groups throughout the period 2006-2015.

Wage gaps between the highest and lowest income deciles had shrunk considerably. Under a government policy aimed at the most vulnerable workers, the minimum wage had grown significantly. Although the minimum wage did not cover the cost of a basic market basket, most workers were paid at least twice the minimum wage, and the majority of households could thus afford a basic basket. The wage gap between women and men was larger in the upper ranges of the salary scale than in the lower ranges. Although public policies promoting gender equality were in place, a cultural change was needed if true equality between men and women was to be achieved.

Ms. Goyeneche (Uruguay) said that the legislation criminalizing sexual harassment in the workplace not only served as a preventive measure, but also established a protocol for the investigation of harassment complaints and provided for penalties against the perpetrator. The protocol took into account the delicate nature of such complaints and focused on protection of the victim. Since the enactment of the legislation in 2009, the Ministry of Labour and Social Security had received many complaints, a high number of which had come from workers in the private sector. State agencies had worked with human resources managers to impress upon them the importance of investigating all allegations of sexual harassment. The courts had also addressed the failure of some businesses to investigate complaints of sexual harassment in the workplace, and penalties had been imposed on offending businesses. Although collective bargaining agreements did not include specific protocols or procedures relating to sexual harassment in the workplace, they did include clauses that referred to the prevention and punishment of such harassment.

Mr. Tovagliare (Uruguay) said that the Constitution enshrined the right to free legal aid for those without adequate means. Moreover, a 2009 order had granted regulatory status in domestic law to the Brasilia Regulations Regarding Access to Justice for Vulnerable People. The order, which stipulated the Constitutional obligation to provide greater protection to the most vulnerable members of society, included a specific section on persons with disabilities. On a more general note, victims’ access to justice would be significantly improved by the amended Code of Criminal Procedure, which would enable them to play a more active role in criminal proceedings, granting them, inter alia, the right to present evidence and to contest a public prosecutor’s decision to close a case.

Both the right to strike and the principle of freedom of association were recognized by the Constitution. Moreover, there was legislation protecting the rights of employees dismissed for exercising their labour rights.

Mr. Villar r eal (Uruguay) said that labour rights were guaranteed not only by law, but also by a social pact that promoted dialogue as a means of resolving conflicts between workers and employers.

Mr. González Arenas (Uruguay) noted that Uruguay was a signatory to the International Labour Organization (ILO) Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and several other ILO conventions, which further strengthened the framework for protection of labour rights. One of the concrete steps taken to give effect to the principle of equal pay for equal work was the promotion of the inclusion of gender equality clauses in collective agreements. To address one of the factors contributing to the wage gap for migrants, the General Labour and Social Security Inspectorate had conducted monitoring operations to identify situations in which migrants were employed in clandestine or informal situations and were being underpaid.

Mr. De Schutter (Country Task Force) said that, according to the Ministry of Social Development, school completion rates varied greatly depending on household income. Against that background, it would be interesting to learn more about the efforts of the Committee for the Eradication of Child Labour to formalize private-sector employment among adolescents aged 16 to 18 while also ensuring that adolescents remained in the education system. The number of adolescents working in the private sector had more than doubled over a 10-year period, and his concern was that children from poorer backgrounds were being put to work, while children from more affluent families were encouraged to continue their education. What was being done to avoid the perpetuation of socioeconomic segregation and inequality with respect to education?

The International Code of Marketing of Breast-milk Substitutes had been incorporated into Uruguayan legislation; details on the enforceability of that legislation would be appreciated, particularly as it appeared that the legislation’s penalty mechanism applied only in the city of Montevideo. A 2013 law on maternal leave did not allow mothers to breastfeed exclusively for the six-month period recommended by the World Health Organization. He understood that a bill on the creation of breastfeeding rooms in work and educational settings was under study and would like to know when its enactment was expected. In addition, information on existing provisions requiring employers to allow breastfeeding in the workplace would be welcome.

Information on the measures taken to combat obesity and reduce salt consumption would be appreciated. In that connection, he wondered whether the State party envisaged putting in place any regulations to complement its nutrition education efforts. He would also like to learn how its nutrition education programmes were assessed. A recent United Nations report had revealed that the quality of water in the State party had deteriorated because of agricultural activities. It would be interesting to know what efforts were being made to reduce the use of pesticides in agriculture.

He was aware that the Government had a policy of relocating people living in irregular housing settlements and wished to know the conditions under which such relocations took place. Did the process involve forced evictions? Were the relocation procedures in line with the Committee’s general comment No. 7 on the right to adequate housing? He would also like to know how the provisions of Act No. 19120, which criminalized homelessness, were applied in practice. If they were not being applied, were there plans to eliminate the relevant provisions from the Criminal Code?

It would be interesting to hear the delegation’s comments concerning the lessons that could be drawn from the State party’s experience with the legalization of marijuana and its legal victory against tobacco company Philip Morris. With regard to reproductive health, he wished to know whether health-care professionals who were conscientious objectors and refused to perform abortions were obligated to refer patients to practitioners who were not objectors. He welcomed the new proposed legislation on mental health care, which called for the establishment of a national mental health care oversight commission; however, in light of that commission’s apparent lack of independence, he wondered how the State party planned to ensure strong oversight of the institutionalization of persons with mental disabilities. It would also be useful to know how the draft legislation would uphold the principle of free and informed consent and the prohibition of arbitrary deprivation of liberty for people with disabilities.

The meeting rose at 6 p.m.