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Coalition of Belgian Civil Society for Economic, Social and Cultural Rights 20 October 2005

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Compliance of Belgium with its Obligations under the International Covenant

on Economic, Social and Cultural Rights ---------JJJ------------------

Joint Parallel Report Prepared by the Coalition of Belgian Civil Society

for Economic, Social and Cultural Rights

¹11.11.11, Coalition of the Flemish North-South Movement

ACW, umbrella of Christian Workers Organisations

Attac Flanders

CNCD-11.11.11

Entr’Aide et Fraternité

FIAN Belgium

KWIA

Ligue des droits de l’homme (Belgique francophone)

Médécins-sans-Frontières Belgique

Social Alert International

Proyecto Gato

²ACV, Belgian Christian Trade Union

Wereldsolidariteit/Solidarité Mondiale

Pax Christi Vlaanderen

Oxfam Solidarité/Solidariteit

Broederlijk Delen

¹ The following organisations are the authors of the present report. The content of each chapter only commits the organisation that has authored the chapter.

² The following organisations support the Parallel Report of the Coalition of Belgian Civil Society for Economic, Social and Cultural Rights. They agree that the Belgian Government should comply better with its reporting obligations under international human rights instruments and should pay more attention to the recommendations of the Committee. They are not responsible for the contents of the present report.


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Table of Contents

Part I. Compliance of Belgium with its National Obligations under the International Covenant on Economic, Social and Cultural Rights

Part II. Compliance of Belgium with its International Obligations under the International Covenant on Economic, Social and Cultural Rights

Part III. An Optional Protocol to the International Covenant on Economic, Social and Cultural Rights


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General Introduction

The Coalition of Belgian Civil Society for Economic, Social and Cultural Rights has prepared the present joint parallel report. The Coalition is composed of both Flemish and Francophone organizations that are active in the field of development cooperation, poverty, labour rights, health and human rights.

The initiative for this report was taken in 2004 by 11.11.11, the coalition of the Flemish North-South movement, and by FIAN-Belgium. A number of organizations have contributed to the report in their respective areas of expertise. They are mentioned on the cover of this report.

After having finalised the joint parallel report in April 2005, it was communicated to the Belgian government. By proactively preparing a parallel report, the Coalition intended to stimulate the Belgian authorities to prepare the official report well in time, and in response to the major concerns of civil society. On 18 May 2005, the report was presented to government and federal parliament in a colloquium, organised by the Coalition under the auspices of the Commission for Globalisation of the Belgian Senate, one of the two chambers of the Belgian federal parliament.

The Coalition has repeatedly but unsuccessfully invited the Belgian authorities to engage in a dialogue on the basis of the parallel report. On one occasion, on 22 March 2006, a meeting was organised by the Belgian federal public service for foreign affairs, to listen to the comments of the Coalition on the draft official report. While the coalition was allowed to comment on the draft official report, no interaction took place, nor were the authorities willing to engage in a dialogue on the parallel report. The Coalition regrets this purely formal ‘dialogue’, in which the Belgian authorities have not been willing to substantially discuss the official and parallel report.

The major points of criticism of the Coalition on the Belgian third periodic report concern the absence of a human rights approach in the treatment of issues; the emphasis on legislation and policies, and the concomitant lack of attention for implementation and practice; the failure to react to or to enter into a dialogue with the parallel NGO report submitted to the government well in time; and the lack of political support and interest, leading to a less qualitative report.

The Belgian Coalition is looking forward to a fruitful dialogue with the Committee for Economic, Social and Cultural Rights. It hopes that the Committee’s Concluding Observations will stimulate the Belgian authorities to enter into a substantive dialogue with civil society.


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This preliminary report consists of three parts. In part I, issues of concern with regard to Belgium’s domestic obligations under the CESCR are raised. In part II, some of Belgium’s international obligations are addressed. Finally, in part III, the Coalition urges the Belgian authorities to support the adoption on the optional protocol to the CESCR. At the end of each chapter, suggestions are made to the Committee for questions to be included in the List of Issues, as well as for recommendations to be included in the Concluding Observations. An overview of all suggestions for questions to be included in the List of Issues is being given in what follows.

The content of each chapter only commits the organisation that has authored the chapter.

The Coalition of Belgian Civil Society for Economic, Social and Cultural Rights suggests the following questions for inclusion in the Committee’s List of Issues:

I. With regard to the national obligations of Belgium under the ICESCR:

Right to Work – Right to Social Security

With regard to the activation measures for the unemployed:

• Could Belgium clarify its respect of the principle of proportionality in introducing a contract for job searching?

• Is the Belgian government considering the adoption of other measures of training, guidance and control of the unemployed?

Right to Work – Migrant Workers

• Is Belgium considering signature and ratification of the 1990 UN Convention on migrant workers and members of their families?

• Is Belgium considering signature and ratification of ILO convention No. 143 on migrant workers and members of their families?

• Is Belgium considering applying the recommendations of the European Council (Council of Europe) study, at both a national and international level?

Right to Housing

• What measures have the Belgian Federal Government and the regional Flemish Government taken to ensure the follow-up to the recommendation of the Committee on Economic, Social and Cultural Rights (UN Doc. E/C.12/1/Add.54, para. 26) on the shortage of public housing in Flanders? How many social dwellings do the competent authorities in the three regions currently officially record, and to what degree are they occupied?

• Considering that Belgium recently expressed the view that the ratification of article 31 of the Revised European Social Charter cannot be implemented


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immediately, thus admitting that the initiatives taken in this field do not adequately guarantee the right to housing as described in this article, what is the situation today and what is (are) the reason(s) why this text has (not) been ratified?

• Whether under the present housing policy, attention is not only focused on property acquisition and whether a reorientation of resources has taken place in this regard?

• What is done in particular to improve the housing situation of vulnerable groups?

Right to Housing – Energy:

• How come customers with energy debts are treated less favourably than other customers, which often leads to even more debts or to encroachment on other basis services.

• How come the network of energy card charging centres is not yet fully operational, and not very customer-oriented in terms of accessibility.

• Whether sufficient measures have been taken to protect vulnerable groups against potentially detrimental side-effects of privatisation?

Right to the Highest Attainable Standard of Health

• Is Belgium prepared to sign 'The convention on the protection of the rights of all migrant workers and members of their families'?

• Is Belgium prepared to commit itself to real access to health care for everyone in the country?

• What are the prospects in the near future for facilitating access to health care for vulnerable groups, in particular the above-mentioned ones?

• When real access to health care would be obtained for illegal immigrants and asylum seekers, would Belgium be prepared to promote this system in other European countries?

Right to Education – Rights of Indigenous Peoples

• Which steps Belgium is taking to implement Article 13 of the ICESCR with regard to the Manush and Rom people living in Belgium?

• Why is Belgium not ratifying ILO Convention 169?

II. With regard to the international obligations of Belgium under the ICESCR:

International Assistance and Co-operation

• What are the prospects for the development co-operation budget in the near future? Will Belgium live up to its political commitment to reach 0,7% of GNP in 2010, and does it consider to transform this political commitment into a legally binding obligation?


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• What is the Belgian position within OECD/DAC on the enlargement of ODA-eligibility?

• Is Belgium prepared to make multi-annual budgetary commitments towards its partner countries, so as to contribute to their financial capacity to realize ESC rights?

Right to the Highest Attainable Standard of Health in Third Countries

• When will Belgium review its policy on user fees for essential health care in low income countries and eliminate its promotion in its development co-operation? Will Belgium comply with the Millenium Project’s recommendation to eliminate user fees for primary health

• When will Belgium review its policy concerning health insurance schemes to ensure that vulnerable groups are not excluded and that the services package offered complies with international standards of care?

• Would Belgium be willing to condition its funds to the IDA by requiring that they are used in conformity with its obligations under the ICESCR? This would imply conditioning the funds to be used in projects that assure access to essential care and protection of the poor, but also reviewing any constraints linked to fiscal policies imposed on health budgets for adequate primary health care, effective AIDS care and control of other diseases such as malaria.

• Would Belgium be ready to abandon its present financial sustainability demands and to accept that the realization of the right to health in developing countries relies on continued external financing?

• Does Belgium intend to raise the level of development aid earmarked for health, as envisaged in the DGCD 2002 Strategic Note on Primary Health?

Right to Food in Third Countries

• Would Belgium, during the ongoing bilateral and multilateral trade negotiations, be willing to defend the right of countries to protect their agricultural markets with import tariff adjustments and quotas, when dealing with imports of strategic products concerning rural development and the right to food and an adequate living standard.

• Is Belgium willing to defend within the World Bank Board of Members, the development of guidelines concerning human rights, ecological and social standards in mining policy advisory processes, including an impact assessment concerning these issues.

• Is Belgium willing to defend within the World Bank Board of Members, the need for effective participation processes of affected communities and civil society in policy advise concerning mining laws and mining projects, including details of how doubts that are raised in these processes are taken into consideration.

• Is Belgium willing to defend within the World Bank Board of Members, the need to examine socio-economic, ecological and cultural changes when dealing with resettlement problems of affected populations, including local government control systems, sanction mechanisms and an effective complaint procedure to regionalized contact points, in order to ensure that their right to food is not violated and their continued access to land or alternative income is guaranteed.


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• Is Belgium willing to assess and monitor the effects of bilateral EU fishery policies on the right to food of local populations and sustainability, and to apply the precautionary principle in case of possible negative effects.

International Financial Institutions and the Right to Water in Third Countries

• Is Belgium ready to take the initiative to cancel from its budget 2006 onwards the debt reimbursements to be paid by the poor countries of the South and stimulate the international financial institutions to do the same?

• Is Belgium ready to take initiative to submit the international financial instituations to the obligations arising from international law, particularly those treaties and agreements that have been ratified by Belgium and the majority of the Member states?

Right to Work and Right to Social Security in Third Countries

• In which way do Belgian development co-operation policies contribute to the realization of ESC rights in countries in the third world?

• Has Belgium a clear policy on the realization of ESC rights in the third world?

Export Credits for Companies

• Why has Ducroire not screened the Houay Ho dam project (Laos) on any social (resettlement, freedom of association, safety…) and environment-related (health) impact?

• What has been done to make the National Contact Point a good functioning complaints mechanism?

• What has been done to integrate ESC rights in the OECD Guidelines for Multinational Enterprises and the OECD Common Approaches?

Rights of Indigenous Peoples in Third Countries

• Why is Belgium not ratifying ILO Convention 169?

• What actions Belgium will undertake to live up to its international obligation to protect the rights enunciated in the ICESCR, in particular Article 1 (2), with regard to indigenous peoples, e.g. in the case of Peru?


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Part I: Compliance of Belgium with its National Obl igations under the International Covenant

on Economic, Social and Cultural Rights --------------------------------


National Obligations 2

Table of Contents

TABLE OF CONTENTS ................................................................................................... 2

RIGHT TO WORK/FREEDOM TO CHOOSE WORK AND SOCIAL SEC URITY: “ACTIVATION” OF THE UNEMPLOYED..................... .............................................. 4

JUSTIFICATION .................................................................................................................. 4 LEGAL FRAME-WORK AND OBLIGATIONS RELATED WORK AND SOCIAL SECURITY ......... 4 ISSUES OF CONCERN.......................................................................................................... 5 RECOMMEN-DATIONS AND QUESTIONS............................................................................. 6

Questions...................................................................................................................... 6

RIGHT TO WORK/FREEDOM TO CHOOSE WORK, SOCIAL SECURI TY AND AN ADEQUATE STANDARD OF LIVING: THE LAW ON SOCIAL PROTECTION.................................................................................................................... 7

JUSTIFICATION .................................................................................................................. 7 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO SOCIAL INTEGRATION ................. 8 ISSUES OF CONCERN.......................................................................................................... 9

Increased conditionality of the minimum income......................................................... 9 The low amount of the integration allowance............................................................ 10

RECOMMEN-DATIONS AND QUESTIONS........................................................................... 11 Recommendations ...................................................................................................... 11

THE RIGHT TO HOUSING ........................................................................................... 12

JUSTIFICATION ................................................................................................................ 12 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO HOUSING................................... 12 ISSUES OF CONCERN........................................................................................................ 13 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 14

Questions.................................................................................................................... 14 Recommendations ...................................................................................................... 14

THE RIGHT TO HOUSING (2) ..................................................................................... 15

JUSTIFICATION ................................................................................................................ 15 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO HOUSING............ 15 ISSUES OF CONCERN........................................................................................................ 16

Concerning the Federal and Flemish Government .................................................... 16 Concerning the Flemish Government......................................................................... 17

RECOMMEN-DATIONS AND QUESTIONS........................................................................... 17 Questions: .................................................................................................................. 17 Recommendations ...................................................................................................... 17

RIGHT TO ENERGY ...................................................................................................... 18

JUSTIFICATION ................................................................................................................ 18 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO ENERGY ............. 18 ISSUES OF CONCERN........................................................................................................ 19

Availability ................................................................................................................. 19 Accessibility ............................................................................................................... 20

Access to information .......................................................................................................... 20 Access to services ................................................................................................................ 20 Affordability ........................................................................................................................ 20 Non-discrimination .............................................................................................................. 20

Capacity to pay .......................................................................................................... 20 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 21

Questions: .................................................................................................................. 21 Recommendations: ..................................................................................................... 22



THE RIGHT TO WORK, RIGHTS OF MIGRANT WORKERS AND ME MBERS OF THEIR FAMILIES .................................................................................................... 23

JUSTIFICATION ................................................................................................................ 23 Illegal migration in Belgium ...................................................................................... 23 International domestic workers.................................................................................. 23

LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO WORK AND

M IGRANT RIGHTS ........................................................................................................... 25 ISSUES OF CONCERN........................................................................................................ 25

1. Difficulties to use efficiently the available official data on migrant workers......... 25 2. Lack of legal protection for illegal migrant workers ............................................. 25 3. The specific situation of international domestic workers....................................... 25 4. Refusal to ratify international Conventions related to the issue of migrant workers................................................................................................................................... 26

Cases on Domestic Workers ................................................................................................ 27 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 29


THE RIGHT TO HEALTH CARE................................................................................. 31

JUSTIFICATION ................................................................................................................ 31 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO HEALTH CARE........................... 31 ISSUES OF CONCERN........................................................................................................ 31

Administrative difficulties .......................................................................................... 32 - Concerning illegal immigrants:.......................................................................................... 32 - Concerning asylum seekers ............................................................................................... 32

The communication .................................................................................................... 33 - Concerning illegal immigrants........................................................................................... 33 - Concerning asylum seekers ............................................................................................... 33

Delays in payment...................................................................................................... 33 - Concerning illegal immigrants........................................................................................... 33 - Concerning asylum seekers ............................................................................................... 34

QUESTIONS AND RECOMMENDA-TIONS........................................................................... 34 Questions.................................................................................................................... 34 Recommendations ...................................................................................................... 34

RIGHTS OF INDIGENOUS PEOPLES......................................................................... 35

JUSTIFICATION ................................................................................................................ 35 Indigenous Peoples in Belgium.................................................................................. 35 Education ................................................................................................................... 35

LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO EDUCATION OF

INDIGENOUS PEOPLES..................................................................................................... 36 ISSUES OF CONCERN........................................................................................................ 37 QUESTIONS AND RECOMMENDA-TIONS........................................................................... 38




Right to Work/Freedom to Choose Work and Social Security: “Activation” of the Unemployed 1

The royal ordinance of July 4th 2004 concerning the modification of the unemployment regulations for the completely unemployed, which should actively look for a job, has retroactively come into force on July 1st 20042. This royal ordinance gives the unemployment office a new mission: to follow the active job searching behaviour of the completely unemployed (article 59bis § 1, paragraph 1).

This follow-up is organized in successive interviews and will – between July 2004 and July 2007 – be applied progressively to the groups of the unemployed under 25 years of age, between 25 and 30, under 40 and finally under 50 years of age who reach, depending on the age group that is concerned, 15 to 21 months of complete unemployment. This control consists of a succession of multiple meetings (minimum of 3) that provide the possibility to evaluate the efforts made by the unemployed person to enter again into the labour market. Depending on whether these efforts will be considered sufficient or not, the unemployed person will or will not have to sign a contract in which he commits himself to undertake a series of concrete actions to find a job in the following months (in these actions, training sessions are included). If the unemployed person refuses to sign the contract, he will be excluded from unemployment benefits. If he accepts to sign, his efforts will be re-evaluated 4 months later and so forth up till the last, third meeting that can eventually lead to a complete exclusion. Except for the precisions and departures provided by the royal ordinance, the unemployed person that is single or in charge of a family will nevertheless continue to receive a reduced benefit of the minimum wage during 6 months. Only the cohabitant with low family income will benefit from a low fixed unemployment allocation during the first 6 months that follow the decision of exclusion. An appeal, without suspending effect, against the decision of the director of the unemployment bureau is to be taken to the National Administrative Commission.

This ordinance foresees a number of cases in which the benefit of the unemployment allocations is taken away definitively or temporarily, or reduced.

The royal ordinance violates the articles 9 and 11 of the International Covenant on Economic, Social and Cultural Rights, which ensure the right of every person to social security, social insurances included, as well as a continuous improvement in the conditions of life. These provisions implicate at least a standstill effect. As the committee has stated “any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources. 3”

1 Ligue des droits de l’Homme (Belgique francophone), 303 Chaussée d’Alsemberg, 1190 Bruxelles – Contact: François Lourtie, phone: + 32 2 209 62 84, fax: + 32 2 209 63 80, e-mail: [email protected] or [email protected] 2 M.B., July 9, 2004. 3 General observation n°3: the nature of the obligations of the member States (art. 2 par. 1 of the Covenant), par. 9.

Justification

Legal Frame-work and Obligations Related Work and Social Security



In effect, the Arbitration Court4 (C.A., May 7th 1992, ordinance n° 33/92, M.B., June 4th 1992) as well as the Council of State (C.E., September 6th 1989, M’Feddal and crts, n° 32.989, J.L.M.B., 1989, p. 1304) accord a standstill effect to the provisions of the International Covenant on Economic, Social and Cultural Rights. On the basis of this standstill effect, no administrative or legislative authority in Belgium can adopt an administrative or legislative act that would not meet the objectives declared in the not directly applicable international convention (R. ERGEC, Introduction au droit public, Story Scientia, 1994, p. 190-191). The Court of Cassation shares the same jurisprudence and has already expressed itself in the same sense. (Cass. December 20th 1990, Pas., 1991, I, p. 392).

The royal ordinance violates article 23 of the Belgian Constitution5, in which the principle of respect for human dignity and the direct effects are stated in the first paragraph, and in which paragraph 3, 2°, that ensures the right to social assistance, contributes at least to the effects of standstill.

On the other hand, this ordinance is a violation, or at least a regression in the execution of these three provisions found in articles 10 and 11 of the Constitution,6 in the sense that they accord the right to live a life in conformity with human dignity, the right to social security and the right of every person to an acceptable living standard for one self and for one’s family, as well as a continuous improvement of one’s living conditions.

The Ligue des droits de l’Homme (Belgique francophone) insists on the need to respect free choice of work and on that of the notion of an acceptable job and adds the following additional criticism to what has been described above:

1. In a well-defined concrete hypothesis, the royal ordinance does not foresee a reasonable term within which the National Administrative Commission of the National Employment Office (ONEM) has to decide on the appeal that has been introduced by the unemployed person against the decision of exclusion or reduction of his unemployment benefit. The hypothesis concerned results from the combined reading of the articles 2 and 5 of the royal ordinance. This absence of a reasonable term within which the Commission has to decide is all the more harmful to the unemployed person because his appeal does not have a suspending effect.

4 The Belgian Constitutional Court. 5 “Every one has the right to live a life in conformity with human dignity. To this end, the law, the decree or the regulation intended by article 134 guarantees, taking into account the corresponding obligations, the economic, social and cultural rights, and determines the conditions of their functioning.

These rights are namely:

(..)

1° the right to social security, to protection of health and to social, medical and judicial assistance (…).” 6 Art. 10. There is no distinction of classes in the State. All Belgians are equal before the law; individually they are admitted to execute civil or military jobs, except for the exceptions that can be established by law for individual cases. Equality of men and women is guaranteed.

Art. 11. The right to enjoy the rights and liberties accorded to all Belgians should be ensured without discrimination of any kind. To this end, the law and decree specifically guarantee the rights of ideological and philosophical minorities.

Issues of Concern



He therefore looses his means of existence during the period of examination of his appeal.

2. The royal ordinance establishes an unjustified difference in treatment on the level of the sanctions between on the one hand the unemployed who is a worker in charge of a family or a single worker and on the other hand, an unemployed who has the status of a cohabitant worker.

3. The provision introduced by the royal ordinance is in contravention of the principles of the free will and of contractual liberty of the unemployed because it imposes the conclusion of a contract by the latter, as well as the suspension or exclusion of unemployment benefits in case of a refusal to sign a contract or non-execution of the contract, whereas there exist measures that respect these principles more and that are more efficient to reach the pursued objectives.

The Ligue des droits de l’Homme (Belgique francophone) is worried about the way this provision is being financed: it should be ensured by a cooperation agreement between the Regions and the Federal Government, and to our knowledge, this agreement, if it was made, has not been signed nor published officially.

Finally, it remains unclear why this provision will only be evaluated in its totality after three years, and not for each of the age classes concerned at the moment of execution of the concerned phase.

Questions

The Ligue des droits de l’Homme (Belgique francophone) would like to suggest to the Committee to ask:

• to clarify Belgium’s respect of the principle of proportionality. The problem of job shortage that has been unanimously recognized can only be resolved by the creation of jobs; intensifying the job searching behaviour by force does not at all resolve the problem of a lack of jobs. Besides, no serious research proves the positive consequences of imposing a contract concerning the search for a job on an unemployed. Moreover, there is a lack of work force on the labour market for “certain categories of highly qualified workers and also for certain professions destined for those who are lowly qualified. For the former, the inadequacy of job offer and demand, due to bad training and lack of qualification and useful work experience, is the cause. For the latter, the motives are bad working conditions, low salaries, and difficult working hours” (O.N.E.M., “the economical context and the internal labour market”, annual report 2003); these findings again show that imposing a contract in the context of the search for a job is in no way the appropriate means to reach the objective of stimulating job searching behaviour. The royal ordinance of July 4th 2004 will, in overall majority, sanction unemployed people for a problem that is not their responsibility, namely the lack of jobs. This system stimulates stigmatisation of the unemployed, increasing the feeling of guilt of some of them and re-enforcing the marginalization of others.

• if the Belgian government is considering the adoption of other measures of training, guidance and control of the unemployed; measures that would not be in contradiction with, amongst others, articles 9 and 11 of the Covenant; since the means used by the royal ordinance of July 4th 2004, namely the imposition of a contract accompanied by sanctions, are completely inadequate to reach the objective pursued.

Recommen-dations and Questions



Right to Work/Freedom to Choose Work, Social Securi ty and an Adequate Standard of Living: the Law on Soci al Protection 7

In 2002, the Law of 26th May concerning the right to social integration replaced the Law of 1974 instituting the right to minimal means of existence (minimum benefit), granted to everybody who does not have sufficient resources and who complies with both a number of objective conditions (age, nationality, residence, lacking or insufficient revenues) and a subjective condition (disposition to work). This legislation weakens the guarantee of a minimum income. The following are its main characteristics:

• According to the Government, it aims at reinforcing the right to social integration of people who receive a minimum income. It is also to strengthen its policy to activate beneficiaries of social allowances and to submit access to social rights to certain conditions (to 'contractualize' social rights). Thus Article 2 of the Law of 26th May 2002 stipulates that « every person has a right to social integration. This right can, under the conditions set by the current law, take the form of employment and/or an integration allowance whether or not accompanied with an individualized scheme of social integration (PIIS). » This is more than just a change in terminology: the minimum income as the expression of the right to minimal means of existence (1974) is no longer a right as such, but a method to exercise this right. The right to minimal means of existence becomes the right to social integration, which can take the shape of employment and/or an integration allowance, whether or not accompanied with an individualized scheme of social integration (“Projet Individualisé d’Intégration Sociale” or PIIS) and ratified by a contract between the beneficiary and the Public Centre for Social Services (CPAS), the local public body that is in charge of the implementation of the law.

• Beneficiaries of an integration allowance can be divided into two categories: (1) adults younger than 25 years for whom the right to a social integration allowance takes the form of a right to social integration by employment, which either can be the subject of an employment contract or of an individualized scheme of social integration leading, in a well-defined period of time, to an employment contract. The conclusion and observance of a PIIS is compulsory and thus constitutes a condition for granting an integration allowance, except if this appears to be impossible for reasons of health and equity and (2) adults older than 25 for whom the right to social integration can be achieved through either according an integration allowance or through employment linked with an employment contract. Just like for people younger than 25, the accordance and retention of the integration allowance can be accompanied with an individualized scheme of social integration (PIIS), always ratified by a contract, either at the demand of the person concerned or at the initiative of the CPAS.

• Once the contract is signed, the law provides for sanctions in case of non-fulfilment of the contract. Thus the integration allowance may be partially or totally suspended for a period of maximum one month. In case of recidivism

7 Ligue des droits de l’Homme (Belgique francophone), 303 Chaussée d’Alsemberg, 1190 Bruxelles – Contact: François Lourtie, phone: + 32 2 209 62 84, fax: + 32 2 209 63 80, e-mail: [email protected] or [email protected]

Justification



within a period of one year at most, payment of the integration allowance can be suspended for a period of maximum three months. Non-suspensive appeal against those decisions is possible before an industrial tribunal.

The law concerning the right to social integration violates articles 11 and 6 of the International Covenant on Economic, Social and Cultural Rights. Article 11 establishes the right of everyone to an adequate standard of living for himself and for his family, as well as to the continuous improvement of living conditions; article 6 confirms the right of every person to get the opportunity to gain a living by work, which has freely been chosen.

Those stipulations at least lead to a standstill obligation. As the Committee puts it: "any deliberately retrogressive measures in that regard would require the most careful consideration and would need to be fully justified by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources.”8 Indeed, both the Court of Arbitration9 (C.A., 7th May 1992, judgement n° 33/92, M.B., 4th June 1992) and the Council of State (C.E., 6th September 1989, M’Feddal et crts, n° 32.989, J.L.M.B., 1989, p. 1304) recognize that the provisions of the International Covenant on Economic, Social and Cultural Rights have a standstill effect. On the basis of this standstill effect, no administrative or legislative authority in Belgium must adopt an administrative or legislative act that represents a regression from the objectives as declared in the not immediately applicable International Covenant (R. ERGEC, Introduction au droit public, Story Scientia, 1994, p. 190-191). The Court of Cassation shares this jurisprudence (Cass., 20th December 1990, Pas., 1991, I, p. 392).

The law violates article 23 of the Belgian Constitution10, of which the first paragraph establishes the principle of respect for human dignity and contains direct effects, and of which paragraph 3, 2°, establishing the right to social assistance, leads at least to standstill effects.

Moreover, this law constitutes a violation or at least a retrogression in the implementation of three provisions read in the articles 10 and 11 of the Constitution11 insofar as they establish the right to lead a life in conformity with

8 General Observation n°. 3: The nature of the obligations of the State Parties (art. 2, par. 1, of the Covenant), par. 9. 9 Belgian Constitutional Court. 10« Everyone has the right to lead a life in conformity with human dignity.

To that end the law, the decree or the regulation referred to in article 134 guarantees, allowing for the corresponding obligations, the economic, social and cultural rights, and determine the conditions of their exercise. Those rights comprise in particular : (…) 1° the right to social security, to protection of health and to social, medical and legal assistance. (…). ». 11Art. 10. In the State there is no distinction of classes. All Belgians are equal before the law; they alone are admissible to civil and military offices, apart from the exceptions that can be established by law for specific cases. Equality between men and women is guaranteed.

Art. 11. The enjoyment of rights and freedoms assigned to Belgians must be secured without discrimination. To that end, the law and the decree guarantee in particular the rights and freedoms of ideological and philosophical minorities.

Legal Frame-work and Obligations Related to Social Integration



human dignity, the right to social security and the right of everyone to an adequate standard of living for himself and for his family, as well as to a continuous improvement of living conditions.

Increased conditionality of the minimum income

The PIIS that is put on contract constitutes an additional condition for receiving or retaining a minimum income, which is added to the conditions already mentioned in the 1974 law. Since it is the last safety net, the minimum income should be as little conditional as possible, in order to avoid that a marginal group of the population is completely excluded and deprived of all resources that allow these people to lead a life in human dignity.

The law (the PIIS) does not take into consideration the inevitably unequal relation between the social worker of the CPAS and the person who asks for assistance. The latter is not free to accept or to refuse the contract, since this is an essential condition for receiving or retaining the minimum income.

The law specifies that the PIIS should as a priority lead to employment. If employment is considered to be the most important vehicle of social integration, it is important to examine the evolution of the availability of jobs. For some years however, there has been a trend towards less secure employment and towards deteriorating working conditions. Poor and poorly skilled workers are the first victims: poorly skilled people feel that in many cases employment does not constitute an improvement for their situation, but actually leads to a setback in the effectiveness of their rights: due to wages that are too low; because of bad working conditions (physically tiring work, for example); because of too limited working hours (part-time jobs) or extremely burdensome working hours (night work) or because it is difficult to combine family life and work (single-parent families).

In this respect it is necessary that employment meets the requirements of decent employment for everyone and that all the basic rights of the applicant are fully respected, both in the steps that have to guide him to this employment and in the execution of the job. We want to remind here that for people younger than 25 years, employment is seen as the only way to be entitled to integration. Article 6 §1 holds that « every person of age of less than 25 years old has the right to social integration by employment that is suitable to his personal situation and to his capacities (…) ». The law does not define this notion of suitable employment.

The non-fulfilment of the PIIS by the applicant may lead to very severe sanctions, going from suspension to deprivation of the minimum income. Even if it seems that the contractualization, according to the government, was not meant as a mechanism of exclusion (but no serious evaluation does confirm this), the mere fact that sanctions are possible puts a very strong pressure on the applicant to accept the contract (see above). The decisions of the CPAS to grant or to suspend social assistance can be disputed before an industrial tribunal, at the latest within three months after the date that the decision is taken, but article 47 § 3 of the law of 26th May 2002 stipulates that this recourse has no suspending effect on the execution of the decision.12

12 In its Conclusions XVII-1 with respect to Belgium and concerning the fulfilment of article 13 (the right to social and medical assistance) of the European Social Charter of 1961, the European Committee on Social Rights, to which the purview of the law of 26th May 2002 was presented, points out that it questioned the Belgian Government several times about the issue whether people who dispute the decisions of the CPAS can obtain

Issues of Concern



The object of the PIIS is not determined. It may concern a whole range of commitments, which at the time that the bill was discussed were qualified as activities of social reintegration. The law indicates in this respect that « depending on the needs of the person concerned, the individualized project will focus either on professional integration or on social integration (article 11). In actual practice, contracts sometimes concern the search for housing, undergoing a treatment for drug addiction, psychological guidance, etc., which may constitute an intrusion in people's private lives.

There is a risk that more and more people who are entitled will not claim their right or will abandon their claim for fear of inspection or for fear of not being able to meet the required conditions (non take up). The same applies to article 4 of the law, providing that the person involved can be forced to assert his rights towards those who owe him a living, the latter being limited to: his spouse or, if applicable, his ex spouse, the ascendants and descendants in the first grade, the adopter and the adopted. Any measure that may lead people to delay or even renounce the exercise of their rights is a source of concern.

Young people of less than 25 years old, who want to continue their studies, might see their basic right to education being subjected to signing a contract. Any pressure exerted by the CPAS as to the choice of studies – for example with regard to the duration – is unacceptable.

The low amount of the integration allowance

The General Report on Poverty and many other studies have shown that the amount of the minimal means of existence is by far not sufficient to lead a decent life. The dramatic increase of rents in certain parts of the country has augmented the problems of households which depend on a minimum allowance and has increased the number of people with excessive debts. Trade unions and associations have mobilized for a common demand: to increase the minimum allowances by 10 % and to create a link between all social allowances and the evolution of the standard of living.13

The explanatory memorandum of the law concerning the right to social integration provided for a total increase of the integration allowance by 10 %. On 1 January 2002 a 4 % increase of the minimum income was recorded. The Federal Government agreement of 2003 announced a « gradual increase of the integration allowance and the lowest social allowances », but the anticipated increase of 10 % has not yet been achieved so far. « After a long downward trend – in particular during the past 20 years – the allowances have reached a level in 2003 that, in

emergency aid during their appeal. The government always refrained from answering this question. In practice, this emergency aid does not always seem to be guaranteed.

13 Service de lutte contre la pauvreté, la précarité et l'exclusion sociale, « En dialogue, Rapport bisannuel - décembre 2003 », CECLR Service de lutte contre la pauvreté, la précarité et l'exclusion sociale, Note au Ministre de l'intégration sociale et au conseil des ministres relative au projet de loi concernant le droit à l'intégration sociale, octobre 2001 ; Réseau belge des associations de lutte contre la pauvreté, Projet de loi concernant le droit à l'intégration sociale, 2001 ; Nicaise I et Groenez S (2002) Traps and springboards in European minimum income systems. The Belgian case, Hoger Instituut voor de Arbeid, KULeuven, Leuven ; Observatoire de la santé et du social, 9e rapport sur l'etat de la pauvreté en région de Bruxelles-Capitale, Commission communautaire commune ; Vranken J (red.) Armoede en sociale uitsluiting. Jaarboek 2000, OASES, Acco, Leuven et Cantillon B., Marx I. , De Maesschalck V. (2003), De bodem van de welvaartsstaat van 1970 tot nu, en daarna, CSB-berichten, Centrum voor sociaal beleid, UFSIA, Antwerpen.



comparison with the National Income/capita, is 20 to 30% lower than in 1971 (...)”14.

Recommendations

The Ligue des droits de l’Homme (Belgique francophone) would like to suggest to the Committee to recommend:

• to sanction the suspensive character of any recourse against a decision of the CPAS cancelling the right to a minimum income, or to guarantee equivalent social assistance to someone who is deprived of this minimum income.

• not to connect the conclusion of the individualized scheme of social integration to a disproportionate sanction (i.e. the suspension of the integration allowance that constitutes the minimum income of the person entitled), according to what is stipulated in articles 6 and 11 of the Covenant, which guarantee rights and not favours to all.

14 Cantillon B., Marx I. , De Maesschalck V. (2003), De bodem van de welvaartsstaat van 1970 tot nu, en daarna, CSB-berichten, Centrum voor sociaal beleid, UFSIA, Antwerpen.




The Right to Housing 15

Since Belgium is a federal state, the competences with regard to housing are divided among the Federal Government and the regions. There are three regions in Belgium: the Walloon Region (French-speaking), the Flemish Region (Dutch-speaking) and the Brussels Metropolitan Region (bilingual).

The federal competences with regard to housing should not be underestimated, they sanction the basic principles of rental housing, e.g.: legislation on leases of main homes (civil code), procedures of eviction (judicial code), and taxes with regard to housing (tax legislation). Any option taken with regard to housing should imperatively anticipate and take into consideration possible adverse effects that they may entail, because those effects may be numerous. The transversal character of the right to housing is to be highlighted in comparison with the other constitutional guarantees: the right to work, the right to health and the right to a healthy environment, the right to respect of privacy, the right to cultural and social development – to name but a few – are not conceivable for people who do not have access to adequate housing. Moreover it appears – and this has to do with the objective link between the amount of the rent and the quality of the dwelling – that more and more people are faced with problems to find adequate housing at a price they can afford16. Nevertheless Belgium has one of the lowest percentages of social housing17. As a matter of fact, at the last session of the Committee for Economic, Social and Cultural Rights on Belgium, the Committee worried about the shortage of social housing in Flanders, but the situation is problematic for the whole territory. It is absolutely necessary to increase the number of social housing projects. The Government agreement of 10th July 2003 provides not only for better coordination of housing policies, but also intends to use the tax system and the rent law to tackle the problem. The Ligue des droits de l’Homme (Belgique francophone) holds the opinion that it is necessary to re-examine and study more in depth the role of property taxes as an instrument of housing policy.

Article 23 of the Constitution stipulates: « Everybody has the right to lead a life in conformity with human dignity. To that end the law, the decree or the regulation referred to in article 134 guarantees, allowing for the corresponding obligations, the economic, social and cultural rights, and determine the conditions of their exercise. Those rights comprise in particular: (…) 3° the right to adequate housing (…) ». This article of the Constitution does not have any direct effect: it does not confer to private persons any rights which they could claim the benefit of before a

15 Ligue des droits de l’Homme (Belgique francophone), 303 Chaussée d’Alsemberg, 1190 Bruxelles – Contact: François Lourtie, phone: + 32 2 209 62 84, fax: + 32 2 209 63 80, e-mail: [email protected] or [email protected] 16 At national level, 68 % of dwellings are occupied by owners, co-owners or usufructuaries of the houses. This figure is considerably lower in cities (47,8 %). The difference is most pronounced in Brussels, where only 2 persons in 5 own their dwelling. 17 6 % in comparison with 17 % in France, 36 % in the Netherlands, 24 % in Great Britain and 26 % in Germany. In Brussels there are more than thousand people who live on the street and 28.000 households are waiting for social housing, according to the 'Observatoire de la Santé et du Social', « Tableau de bord de la santé, Région de Bruxelles-Capitale, 2004 », p. 9.

Justification

Legal Frame-work and Obligations Related to Housing



national judge if no specific measures for exercising these rights have been taken by the competent State entities. The constitutional economic and social rights are of a programmatic nature, but just the same they are also legal rules. In that sense they bring along indirect effects for all public authorities (legislative or judicial). The adoption and the review of the different regional housing codes illustrate the public concern to make the right to housing effective. Since those rights are established by the constitution, they also entail a certain standstill effect, which essentially prohibits the legislator to reduce an acquired level of social or economic protection.

Article 11 of the International Covenant on Economic, Social and Cultural Rights establishes the right of everybody to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

Those two provisions in combination with article 2 of the Covenant invite the Member States to act with all available resources in order to progressively guarantee the full exercise of the right to adequate housing. To this end the 'Ligue des Droits de l'Homme (Belgique francophone)' suggests to introduce a number of changes into the Belgian national tax system. These changes are explained here (taxation of the real rental incomes, establishment of an equitable relation between the rent and the quality of housing and an increase in the provision of social housing).

The primary objective is to put an end to taxation based upon the « indexed rateable value »18 and to base taxation on the real rental incomes. In fact it does not make any difference today whether a building is used as a single-family dwelling or is split up into various dwellings that each generate rent. The rateable value stays the same. Moreover the owners officially benefit a fixed exemption of 40 % on this rateable value to cover possible expenses for important maintenance work, repairs, etc…, no matter whether these expenses actually take place or not.

It is possible to tax the rental income on the basis of the real rent. This system is practised in France, in Germany and in the Netherlands (although sometimes according to very different methods). In 1997, the section « Fiscalité et Parafiscalité » of the High Council of Finances was asked to give its opinion about this possibility. It studied the situation in those three countries and it concluded that the Belgian tax system is unfair: it does respect neither the horizontal equity (this equity requires that the tax does not depend on the fact whether an income is originating from movable or immovable goods or from work – the tax rate should be the same for the same income), nor the vertical equity (this equity refers to the principle of progressiveness: the higher the capacity to contribute, the higher the tax rate should be; consequently the property tax does not have a redistributing capacity). In order to tax the real rental income the rent should be included in the declaration of the tax on natural persons, both for the owner and for the tenant. As to the 40 % fixed reduction of the rateable value mentioned above, the 'Ligue

18 This income is an amount that was set in 1975 (and adapted to the index in 1990), which since then has been changed only by the increase in index. But the Plan d’Action National pour l’Inclusion Sociale 2001-2003 (National Action Plan for Social Integration 2001-2003) stressed that the prices of the private rental market for rooms and apartments had exceeded the index of the past 15 years by 46 %. Source : Rapport de la Cellule de lutte contre la précarité, la pauvreté et l’exclusion sociale du centre pour l’égalité des chances et la lutte contre le racisme « En dialogue, Rapport bisannuel – décembre 2003 », 2003, p. 175.

Issues of Concern



des Droits de l'Homme' as well as other associations argue to take into account only the work that has actually been carried out. The report of the High Council for Finances goes in the same direction. It requires on the one hand that pieces of evidence should be submitted, and stresses on the other hand that according to certain studies, the level of expenses and costs of important maintenance work should only be estimated at 15 %.

We want to stress here that in Belgium the amount of rent is completely left to the discretion of the owner. It is neither objectively linked to the condition nor to the situation of the good, which should absolutely be reformed by the establishment of an inspection on rents, like the Federal Government has committed to do in the National Action Plan for Inclusion (2002-2003). Thus it should be possible to establish and to implement rents of reference per type of housing, depending on the quality of the dwelling, the comfort and the environment.

Questions

The Committee might consider asking the following questions:

• What measures have the Belgian Federal Government and the regional Flemish Government taken to ensure the follow-up to the recommendation of the Committee on Economic, Social and Cultural Rights (UN Doc. E/C.12/1/Add.54, para. 26) on the shortage of public housing in Flanders? How many social dwellings are currently officially recorded by the competent authorities in the three regions, and to what degree are they occupied?

• Considering that Belgium recently expressed the view that the ratification of article 31 of the Revised European Social Charter cannot be implemented immediately, thus admitting that the initiatives taken in this field do not adequately guarantee the right to housing as described in this article, what is the situation today and what is (are) the reason(s) why this text has (not) been ratified?

Recommendations

The Committee might consider making the following recommendations:

• To recommend that Belgium tax the real rental incomes. In order to know the real rental incomes, the Committee recommends obliging to submit, together with the tax declaration for private persons, a declaration of received rents (by the landlord) and also of paid rents (by the tenant).

• To recommend that Belgium establish a mechanism that guarantees the objectivity and the equity of the rent for each dwelling, depending on the real condition of the dwelling.




The Right to Housing (2) 19

The right to decent housing is a right that is clearly to be interpreted from the perspective of the most vulnerable groups in our society, such as the poor and members of ethnic minorities.20 By unilaterally emphasizing the acquisition of property, which causes a shortage of social housing, ACW holds the opinion that Belgium as a State party to the ICESCR has failed to properly implement the right to housing. The issue is not so much one of lack of resources, but of questionable allocation of resources.

It is important to know that the housing policy is mainly a regional matter. The federal state, however, has an impact on housing policy too through housing acts, fiscal legislation and safety policy. Both levels of authority (federal as well as regional) will be dealt with here.

Article 11, para. 1, first sentence ICESCR reads: “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.” As provided for in article 28 ICESCR, this right extends to all parts of federal States without any limitations or exceptions.

In its general comment on the right to housing, the Committee pointed out that “States parties should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs. In accordance with the principle of affordability, tenants should be protected by appropriate means against unreasonable rent levels or rent increases.” (para. 8 c).

Also, in its 2000 concluding observations on Belgium’s second periodic report, the Committee expressed its concern on the shortage of social housing: “In the light of article 28 of the Covenant, the Committee is concerned about the significant shortage of social housing in Belgium, especially in Flanders. The Committee is also concerned that larger families, as well as single-parent and low-income families, are at a disadvantage in qualifying for such social housing.”21

19 ACW, Haachtsesteenweg 579/20, 1030 Brussels – Contact: Michel Debruyne, phone: +32 2 246 37 29, fax: +32 2 246 37 00, e-mail: [email protected] 20 See General Comment on the right to housing (1991), para. 8 e: “Adequate housing must be accessible to those entitled to it. Disadvantaged groups must be accorded full and sustainable access to adequate housing resources. Thus, such disadvantaged groups as the elderly, children, the physically disabled, the terminally ill, HIV-positive individuals, persons with persistent medical problems, the mentally ill, victims of natural disasters, people living in disaster-prone areas and other groups should be ensured some degree of priority consideration in the housing sphere. Both housing law and policy should take fully into account the special housing needs of these groups.”; para. 11: “States parties must give due priority to those social groups living in unfavourable conditions by giving them particular consideration. Policies and legislation should correspondingly not be designed to benefit already advantaged social groups at the expense of others.” 21 E/C.12/1/Add.54

Justification

Legal Frame-work and Obligations Related to the Right to Housing



Article 23 of the Belgian Constitution provides that “Everyone has the right to enjoy a decent life. This right includes the right to proper housing.” The Flemish Housing Code specifies in its article 3 what the right to appropriate housing means: “Everyone has the right to appropriate housing. Therefore, the availability of an adapted house, of good quality, in a decent environment and at an affordable price with housing security must be enhanced.”

Concerning the Federal and Flemish Government

The total budget for housing is approximately 2 billion €. Of this budget, the largest part goes to providing incentives for the acquisition of property, i.e. 1.575 million €. The incentives for the acquisition of property are mainly fiscal: tax-deductible mortgage and interest payments; housing deduction; reduction of registration fees; reduction of council tax after renovation; reduction of cadastral income (which is the basis for the calculation of the property tax)…

By over-emphasizing the acquisition of property, a reverse redistribution occurs: financial benefits are for those who can afford to acquire their own house, whereas tenants hardly benefit from financial benefits and certainly not from fiscal benefits. Thus, 40% of all housing compensations distributed by the different governments go to the 20% wealthiest families. The 20% poorest families, those who really need the compensations, only receive 10% of the benefits.

Because of the unilateral emphasis on acquisition of property, the poorest part of the population is being excluded from appropriate housing. For studies22 show that half of the tenants will never be able to acquire their own house and therefore will always depend on the (social) rented housing market.

However, the Flemish rented housing market is limited: 19,2% of rented houses are on the private market, and social housing represents only 6% of the total Flemish housing market. Studies show that at least a 100 000 to a maximum of 320 000 extra housing units are needed in Flanders to house all those who are eligible for social housing.

A consequence of the shortage of social housing is that people are to rely on the private market, in which the quality of housing is substandard. 6% of the Belgian population is living in houses practically unfit because of defects such as insufficient heating, leaking roofs… In Flanders, approximately 300.000 houses are substandard, amongst which 135.000 on the private rented housing market.

22 Sources of information:

Official:

• Vlaamse gemeenschap: http://www.vlaanderen.be/w3vlaanderen/ • Ministerie van de Vlaamse gemeenschap, VRIND, Vlaamse regionale indicatoren.

http://aps.vlaanderen.be/ • Kenniscentrum voor duurzaam woonbeleid. www.kenniscentrum-woonbeleid.be • Ministerie van de Vlaamse gemeenschap, afdeling wonen.

www.wonen.vlaanderen.be • Federale regering, Belgisch Nationaal Actieplan Sociale Insluiting 2001-2003,

2003-2005. http://socialassistance.fgov.be/

Non-Governmental:

• Verenigingen voor het recht op wonen, www.platformwonen.be • Verenigingen waar armen het woord nemen, www.welzijnszorg.be en

http://www.vlaams-netwerk-armoede.be/

Academic: http://www.ua.ac.be/main.asp?c=*OASES; www.hiva.be

Issues of concern



The one-sided emphasis on the acquisition of property renders the realization of the right to housing impossible. Moreover, it enhances the duality on the housing market.

Concerning the Flemish Government.

In its government coalition agreement, the Flemish Government expressed the intention to tackle the problem of social housing shortage. The coalition agreement for the 1999-2004 period therefore envisaged to build an extra 15 000 housing units, in addition to the already planned social housing.

Flemish housing policy failed to realize these objectives. After five years, only 2 500 extra houses have been built, instead of the 15 000 envisaged. Lack of a real budget might be one explanation for this failure. The fact that four different ministers were responsible for housing policy during the period referred to has not contributed beneficially to a solid housing policy either.

Questions:

The Committee might consider including the following questions:

• What the Flemish government has done to follow-up on the Committee’s previous recommendations with regard to social housing?

• Whether under the present housing policy, attention is not only focused on property acquisition and whether a reorientation of resources has taken place in this regard?

• What is done in particular to improve the housing situation of vulnerable groups?

Recommendations

The Committee might consider to suggest in its concluding observations that

• the financial benefits go, as a matter of priority, to the most vulnerable groups. At least 30% of the budget should be reserved for the necessary expansion of social housing.

• at least 30% of the available budget be reserved for quality improvement on the private market. The means available should be equally distributed between the private rented housing market and the property market.

• a maximum of 30% can be used for stimulating the acquisition of property, in which the lower income groups be prioritized.




Right to Energy 23

In Flanders, the liberalisation of the energy market (electricity and gas) was completed on 1 July 2003, when private individuals were given the possibility to freely choose their energy provider. This free choice for private individuals was the culmination point of the process of opening up the energy market, which had been embarked upon three years earlier.

The liberalisation has had detrimental consequences for the most vulnerable groups in society. There is a growing awareness that a substantial number of people suffers disproportionately from liberalisation.

The ICESCR guarantees in its article 11, paragraph 1, the right for everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions.

In its concluding observations and general comments, the Committee has repeatedly expressed concern about the availability, accessibility24 and affordability25 of electricity. In the context of “forced evictions” it has made clear that electricity is one of the basic services that are covered by the concept of “adequate housing”.26

Article 23 of the Belgian Constitution provides for the right to life in dignity, including the right to adequate housing. Article 3 of the Flemish Decree of 1996 guarantees to every customer the right to a minimal and uninterrupted supply of electricity, gas and water for domestic use in order to life a live in dignity, in accordance with the current standard of living. As energy provision is considered to be a basic service, so-called social public service obligations have been developed.

23 ACW, Haachtsesteenweg 579/20, 1030 Brussels – Contact: Michel Debruyne, phone: +32 2 246 37 29, fax: +32 2 246 37 00, e-mail: [email protected] 24 See UN Doc. E/C.12/1/Add.83, paras. 23 nd 40 (Georgia); UN Doc. E/C.12/1/Add.55, paras. 26 nd 50 (Morocco); UN Doc. E/C.12/1/Add.36, para. 16 (Tunesia); UN Doc. E/C.12/1/Add.27, para. 10 (Israel). 25 See UN Doc. E/C.12/1/Add.78, paras. 22 and 41 (Benin); UN Doc. E/C.12/1995/15, para. 11 (Ukrain). 26 See the General Comment No. 4 on the Right to Adequate Housing, para. 8(b).

Justification

Legal Frame-work and Obligations Related to the Right to Energy



Issues of concern arise with regard to availability, accessibility and affordability. 27

Availability

The social public service obligations, as laid down in the law, include a special regime for individuals with energy debts. People with energy debts are given a budget meter. With a budget meter, the supply of electricity depends on the available credit on a re-chargeable card. A minimum supply of 6 ampere is in principle always guaranteed, even if the customer is unable to pay or when the card is empty.

Six ampere is very little: probably just enough to survive, but by no means sufficient to live a life in dignity. Moreover, the composition of the household is not taken into account. Regardless of the number of people concerned, 6 ampere is the standard minimum supply.

Cutting-off the electricity supply is possible for three reasons: safety reasons, fraud and obvious unwillingness to pay. The last two reasons can only be invoked as justification after consultation of the Local Advisory Committee (LAC). The LAC is an advisory body which both the electricity network manager and the local social services (“Public Centres for Social Well-Being) participate in. A decision of the LAC can be appealed to before the industrial court.

However, practice and numerous complaints collected by social welfare organisations (“Organisations where poor people take the floor”) reveal that more people are being disconnected than would be expected. Fraud and obvious unwillingness to pay as justification for disconnection from electricity supply are established too easily. The LAC has been perceived to function more as a court than as an advisory body. The LAC usually does not take into consideration the difficulties that vulnerable people face (e.g. problems of attainableness, mobility, communication).

Moreover, energy companies are not under an obligation to accept or to keep a customer. As soon as a customer has built up energy debts, energy companies try to drop that person. Finding another energy supplier becomes then nearly impossible. The distribution network manager is under a legal obligation to supply energy to all persons without a contract (trough the use of a budget meter, see higher), but this causes new problems (see below point 3).

27 References:

On legislation, prices and social schemes: www.vreg.be

On poverty and energy: http://www.vlaams-netwerk-armoede.be/ and www.welzijnszorg.be

Basic documentation on energy and poverty: http://www.vlaams-netwerk-armoede.be/download/beleid/eindverslag_060504.pdf; http://www.armoede.be/armoede/default.asp?id=249

Issues of Concern



Accessibility Accessibility consists of access to information, access to services, affordability and non-discrimination. Access to information

There is a clear problem of dissemination of information. The liberalisation of the Belgian energy market has been badly communicated. This is evidenced by the fact that today only a small number of the Flemish population has opted for a new energy supplier or another type of contract. In addition, essential information is more and more made available through media such as the internet and television. When people are disconnected e.g., they are referred to the internet for more information. Most people who are disconnected do not have access to the internet, and lack the necessary skills to consult it.

Access to services

Energy cards for budget meters are to be charged and recharged at a special charging centre. Though one centre was planned per 10 000 inhabitants, reality is different. On average, there is only one centre for 30 000 inhabitants. Accessibility of the centres is limited to normal working hours (so they are closed at night and during weekends). If a card happens to be empty during closing hours, the customer is put on the minimum supply of 6 ampere.

Affordability

The energy cost should not encroach on expenditures for other basic services. Energy prices should therefore be kept as low as possible (see point 3). Also, in case of energy debts, the repay instalments should be commensurate with a life in human dignity. In practice, energy debts are gradually to be paid back each time when the energy card is recharged. The repay instalment amounts to 35% of the charged amount. This means that energy indebted people receive less energy credit than they actually recharge. It they were to recharge the card for 100 €, only 65 € would be available for use; the other 35 € would go to debt repayment. Invariably, in order to be supplied the necessary energy, energy debts are first to be repaid, to the detriment of the fulfilment of other basic serves. The budget meter, which in principle is a good idea, means in practice that people living in poverty are forced into even deeper poverty.

Non-discrimination

Energy suppliers tend to drop customers with energy debts as quickly as possible. Moreover, practice learns that energy suppliers have established a black list, so that once a customer has been dropped by one supplier, all other suppliers will refuse him. Discrimination on grounds of poverty is therefore rather common.

The only option left in these cases is to turn to the distribution network manager. The distribution network manager is legally obliged to supply energy to customers who are refused elsewhere.

Capacity to pay

Some schemes have been set up to reduce the energy cost of households, such as the supply of a proportion of free energy and the social tariff. Even here there are some unexpected drawbacks however.



The social tariff is for people with a low income. They get 500 kWh free energy per household under the social tariff scheme. This 500 kWh is fixed, irrespective of the fact whether the household is composed of 5 or 2 persons for example. The free energy scheme depends on the household composition. Every household gets 100kWh free energy plus 100 kWh per member of the household. So every household of 5 persons gets 600 kWh free energy under the free energy scheme. The problem is that the social tariff and the free tariff cannot be combined. A household can only benefit from one of the two schemes. As a consequence, small families with low income receive proportionally more free energy than larger families with low income.

Secondly, in reality both the social and free tariff schemes are not completely free. Their cost is shared by all users. This means that every user, including the ones receiving a social tariff is in fact paying more than they should.

Thirdly, individuals with a budget meter, who are being supplied by the distribution network manager, are placed in a disadvantaged position. They cannot negotiate a more beneficial contract, as the distribution network manager offers only standard contracts. The tariffs of standard contracts always exceed those of any other supplier contract. Individuals with energy debts therefore unavoidably pay more. So far, no initiative has been taken to develop a social tariff scheme for persons with a budget meter.

In addition, electricity is considered to be a luxury product and therefore subject to a V.A.T. rate of 21%. Additional taxes (like taxes to compensate the local governments who were before the liberalisation the monopoly holders) are being contemplated.

All in all, liberalisation of the energy market has not led to substantially lower energy prices for the people with low income. Individuals with energy debts are excluded from enjoying any cheaper price rates that might be on offer. On top of that, the energy supplier has the right to charge extra money when a contract is ended earlier. This charge is also levied when a contract is stopped involuntary, e.g. in case of energy debts.

Questions:

The Committee might consider asking:

• How come customers with energy debts are treated less favourably than other customers, which often leads to even more debts or to encroachment on other basis services.

• How come the network of energy card charging centres is not yet fully operational, and not very customer-oriented in terms of accessibility.

• Whether sufficient measures have been taken to protect vulnerable groups against potentially detrimental side-effects of privatisation?




Recommendations:

The Committee might consider recommending in its concluding observations:

• that electricity (and gas and water) are recognised as basic services, which would imply that:

• everyone has the right to a minimum supply allowing him/her to live a life in dignity. 12 ampere would be an absolute minimum, and would have to be increased in accordance to the number of household members

• energy be affordable. Extra costs should not be charged to the customers

• energy be accessible. Service is to be ensured at any moment and at a minimal cost.

• energy debts can never hinder or prevent the supply of energy. A social and human system for repaying energy debts should be established.

• that both at the federal and the Flemish level, an energy policy be drafted that pays priority attention to the most vulnerable groups in society.



The Right to Work, Rights of Migrant Workers and Members of Their Families 28

Illegal migration in Belgium

Official estimates show that about half a million migrants enter Europe each year. In Belgium, nearly one million people are currently accounted in legal statistics as awaiting regularisation of their status or asylum seekers. Yet, more than 60% out of that million come from EU or other OECD countries, about 7% from Sub Saharan Africa, 10% from North Africa, 14% from Eastern Europe, 4% from Asia, 2% from the Middle East and 1% from Latin America29.

Official figures on the number of people coming to Belgium do not reflect reality, as a large number of people enter Belgium illegally and are not accounted for in the official statistics. It is almost impossible to quantify the scope of illegal migrant workers entering Belgium30. Nevertheless, the regularisation campaign in 2000 gave an idea of the scope of clandestine migration: in only three weeks, more than 30,000 files were submitted, concerning some 50,60031 persons. Most of them had already been in Belgium for more than 5 years and had at one time been legal migrants, whereas only half of the clandestine migrants submitted a request for regularisation. It is generally admitted that illegal migration will tend to keep increasing in the short and mid-term, due to the restrictive policies being implemented by European countries.

International domestic workers

International domestic workers in Belgium are a highly heterogeneous group of migrants earning their living by working for private families. They are mainly women. The term “domestic work” legally defines a large variety of tasks that generally include also “care giving works” like looking after children and taking care of elder people. It is very difficult to estimate how many domestic workers operate in Belgium, as most of them live and work secretly.

Several studies carried out by different organisations, with the support of the Roi Baudouin Foundation32 have shown that international domestic servants are working illegally in Belgium. Their origins differ as do their legal positions and working conditions. They may be legal or undocumented, paid officially or “off the books”, live in with their employers or live independently and work for several employers.

28 Social Alert International aisbl, Haachtsesteenweg 579, 1030 Brussels – Contact: Bart Verstraeten, phone: + 32 2 246 36 94, fax: + 32 2 246 30 10, e-mail: [email protected]

29 Source: Direction Générale d’Office des Etrangers (Directorate General of the Office for

Foreigners) 23-03 2005. 30 Lennert M. “Flux Migratoires de et ver la Belgique (Migratory Flows to and from Belgium". Institut de Gestion de l’Environnement et de l’Amenagement du Territoire- Université Libre de Bruxelles, 2001. 31 Wets, supra note. 32 Le personnel domestique international en Belgique. (International domestic staff in Belgium) Prof. Gert Vermeulen, Annemie Bucquoye, Wim Cruysberghs, Etude Exploratoire, janvier 2003.

Justification



Despite these differences, they have one thing in common – their extreme vulnerability. The work of “servants,” (the term officially used in Belgian legislation) as a category of employees is only partially recognised, and certainly not respected. These workers’ migrant status – or more accurately, their frequent lack of any official status – causes additional problems. Furthermore, the isolation of their work in the seclusion of private houses is almost an invitation to abuse. The “live-in” domestic workers suffer most.

Servants of diplomatic staff are a particularly vulnerable group. Diplomatic immunity places them outside the authority of the Belgian state. A study lead by a Filipino organisation in Belgium33 showed how Filipino women working legally for members of the diplomatic corps are often worse treated than illegal migrants, being threatened and harassed constantly. As contracts are drawn up in the language of the country concerned or of the Embassy Secretary, the least educated maids can easily be misled. The most frequent abuses reported from international domestic workers in Belgium are: long daily working hours, very low wages, lack of days-off or holidays, confiscation of the worker’s passport, no payment of any social security taxes by the employer, dismissal in case of illness or maternity, dismissal without any indemnity, physical and verbal abuse e.g., humiliation, threats, etc…

A European Union study carried out in six European countries (Austria, Belgium, France, Italy, Spain and the United Kingdom) provides the following picture of situation of live-in housemaids:

Average daily working hours 17.2

Average monthly wage 162.75 euro.

Psychological abuse (threats, shouting, insults): 88 %

Physical abuse (striking, kicking) 38 %

Sexual abuse and rape 11 %

Irregular access to food (leftovers, deprivation) 61 %

No room of own (forced to sleep in hall, kitchen, etc.) 51 %

Confinement (forbidden to leave house unaccompanied) 34 %

Confiscation of passport by employer 63 %

Irregular payment 55 %

Pay lower than agreed 58 %

Free time not respected 91 %

In brief, these people are subjected to sexual, verbal and physical abuse, racism and economic exploitation.

Source: CONNOR M. (rapporteur) Domestic Slavery, Strasbourg, Council of Europe, Committee on Equal Opportunities for Women and Men, 17 May 2002.

33 Filipino Chaplancy, interview, 15-12-2002.



Articles 6 to 8 of the International Covenant on Economic Social and Cultural Rights (the Covenant) protect the right to work and to favourable conditions of work. A draft general comment on the right to work (article 6 of the Covenant) is to be discussed by the ESCR Committee at its 34th session (in May 2005).

Freely chosen work is an inalienable human right and fundamental freedom.

Discrimination in employment is prohibited in all circumstances. Such discrimination can be based on race, colour, sex, religion, political opinion, ethnic or social origin, family responsibilities, marital status, participation in trade unions and their activities, age, or incapacity.

1. Difficulties to use efficiently the available official data on migrant workers.

An efficient system for collecting data has not yet been a real priority in Belgium. There is no real connection or coordination between the different bodies in charge of collecting relevant data on migrants (legal or illegal). The National Statistics Institute is in charge of centralising the data, as the Federal Public Service for Domestic Affairs collects all the visa and asylum demands and expulsions. The Federal Public Service for Foreign Affairs controls the issuance of visas, through diplomatic posts. Working permits are managed by the Federal Public Service for Work and Employment, but executed by the Regions (Flanders, Wallonia, and Brussels). There is a lack of coordination among these entities making the size of the problem difficult to quantify and resulting in difficulties in coordinating integration policies.

2. Lack of legal protection for illegal migrant workers

The Belgian Government established a legal framework covering some fundamental rights for migrants, i.e. education for migrant children, health services, social protection allowances etc., but this legal framework only applies to legal migrant workers. Until 1984, article 1 of the law on the CPAS34 was applied to anyone whatever his or her status was. Since that date, clandestine migrants are systematically excluded from this article. Even if some legal protective mechanisms for illegal migrants still exist, (e.g. the “urgent medical aid” procedures: see infra the contribution on the right to health) in reality they are very rarely used.

Thus, the problem is not only the lack of a protective legal framework but also its effective application, which requires a clear political willingness in terms of:

• information campaigns addressed to all migrants, legal and illegal ones,

• coherence among the different official bodies dealing with migrant issues,

• strengthening collaboration with NGOs and organisations providing legal or other support to migrants,

• assessing the real scope of the illegal migrants and their precarious situation, in order to elaborate specifically adapted solutions to the problems

3. The specific situation of international domestic workers

As for the international domestic workers, they are not as yet protected under any Belgian legal framework.

34 Public Center for Social Aid (in French : Centre Public d’Aide Sociale )

Legal Frame-work and Obligations Related to the Right to Work and Migrant Rights

Issues of Concern



The study above shows that most cases of “domestic slavery” occur with diplomats and European Union functionaries, who enjoy diplomatic immunity as provided for in the 1961 Vienna Convention. Nevertheless, as the case below will illustrate, this immunity has some limits.

Some recommendations are issued in this study, at national and international level:

National level:

• information, prevention campaign and aid to victims;

• creation of a national fund to indemnify victims;

• penalising slavery and human trafficking;

• establishing juridical measures of protection and social assistance and juridical guarantees for victims of domestic slavery;

• adapting the national legislation related to obtaining the residence permit (titre de séjour).

International level:

• elaborating a treaty regulating the juridical conflict opposing the European Convention of protection of human rights and fundamental freedoms and the Vienna Convention on diplomatic and consular relations

• application of the European Conventions on mutual legal aid related to extradition;

• elaboration of a European Charter on domestic work.

In Belgium, an individual employed by a diplomat enjoys a specific status. They have the right to an identity card called “model IV”, that is often given directly to employees. A survey carried out in 2003 shows that out of 4120 members of diplomatic staff in Belgium, only 670 (plus 203 as members of their family) applied for this model IV card, which leads to believe that the rest were illegally employed. Specific action should be taken towards the diplomatic corps, in order to ensure the correct application of the 1999 circular letter on the provision of “model IV” cards.

Furthermore, media and civil society in general should be more sensitised about this issue, with particular attention to potential employers and potential workers.

4. Refusal to ratify international Conventions related to the issue of migrant workers

At present, Belgium has not (yet) ratified the 1990 UN Convention on the protection of rights of all migrant workers and members of their families (CMW), nor ILO Convention No. 143. Yet, there is no substantial contradiction between the existing Belgian legislation and those international instruments. On the contrary, Belgian legislation is far more developed concerning some issues than the minimum protection that is promoted by the Conventions. There are therefore no major legal constraints for Belgium to ratify these Conventions.

The added value of ratifying the CMW stems from the fact that it provides protection to all migrant workers, whether they are legal or illegal. This broader notion of migrant workers would help to tackle the problem of illegal migrants and to recognize the existence of illegal immigration in clear terms.

Another innovative point of the CMW that would help to strengthen the position of illegal migrants and would fill some gaps in Belgian legislation is that the



Convention provides for remedies for any illegal migrant that is officially expelled from Belgium.

In ratifying the CMW and ILO 143 Convention, Belgium could play a vanguard role among the EU countries. It is a necessary step forwards in the fight against human trafficking, exploitation and towards protection of migrant’s rights.

Cases on Domestic Workers

Correctional Tribunal of Furnes, September 13th 2002, 11th chamber.35,

The victim, a young woman, from Madagascar, arrived in Belgium on a tourist visa, thanks to the assistance of a member of the defendant’s family, who was an international functionary in Madagascar. The defendant went to collect her at the airport. For three years, the victim worked at the defendant’s mother’s house until her death, for a monthly wage of 10 000 FB (Belgian Francs) and accommodation. There has never been any attempt to regularise her situation. During this time she was charged with looking after the defendant’s elderly mother, domestic cores, including the ironing and dishwashing, as well as preparing dinner and feeding the elderly lady. On weekends, she also had to do the ironing for the defendant and her son. The defendant constantly supervised the work done by the victim, knowing that she was illegally in the country and thus completely dependent on her employers. The tribunal held that that the complaint was proved on the basis of numerous testimonies by third parties found in the file.

Labour Tribunal of Brussels, April 20th 2001, 4th ch.36

The plaintiffs, a couple from the Philippines, brought their former employers, an American diplomat and his wife before the Labour Tribunal. The facts are the following: the diplomat had employed the plaintiff as a domestic worker, with a written two year term contract, with a monthly salary of 30 000 FB (Belgian Francs). The plaintiff’s wife also worked for the couple as a domestic looking after the children.

After a few months, they were both fired. The employers unilaterally terminated the employment contract. During the time of their employment, the employees received no wages or an indemnity for the terminated contract. Furthermore, the employers had not paid any social security for the workers. In addition, the female employee was pregnant. Therefore, the employees claimed payment of back wages, an indemnity to cover the terminated contract, a “forfait indemnity” for the female employee due to the contract being terminated while she was pregnant, interest and damages for unfair dismissal and a reimbursement of medical costs.

The employers claimed personal immunity on the basis of Art. 31 Vienna Convention on Diplomatic Relations37. They argued that the Labour Tribunal of Brussels did not have any jurisdiction to examine this case.

35Centre pour l’égalité des chances, « PLAIDOYER POUR UNE APPROCHE INTEGREE Analyse de la législation et de la jurisprudence » Rapport 2002 : Lutte contre la traite des êtres humains, page 77. 36 Cf.supra. pp. 78-80 37 This article provides the following :

“1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:



The Labour Tribunal rejected this argument and accepted the argumentation put forth by the two employees (plaintiffs), for the following reasons: the conclusion and the end of the employment contacts in question were acts that the employer had taken in his personal capacity name and thus did not fall within the framework of his diplomatic role.

Consequently, it was necessary to look to art 39.2 of the Vienna Convention, which stipulates that when the functions of an individual enjoying privileges and immunities comes to an end, those privileges and immunities shall cease when they leave the country, with regard to those acts performed in a private capacity38.

In effect the functions of the defendant (employer) as a diplomat in Belgium had ended and he had returned to the USA. Thus, the Labour Tribunal determined it was competent to examine the case.

The Labour Tribunal also underlined that the jurisdictional immunity was only procedural immunity, which did not imply that diplomats were to be exempt to the laws of the country in which they were accredited. The procedural obstacle only exists as long as the immunity exists.

The defendants also argued that when the Labour Tribunal was examining whether of not a diplomat enjoyed immunity from jurisdiction the Labour Tribunal had to examine this issue with regard to the moment the act in question took place and not at the moment the case was being heard. The Labour Tribunal considered this to be contrary to the aim of the Vienna Convention: the objective of these privileges and immunities is not to benefit individual persons but to ensure that diplomatic missions, as State representatives, are able to function efficiently.

Thus, the Labour Tribunal emphasised that if the defendants committed the act in question while still enjoying immunity it would not be exercising jurisdiction and this would not violate either diplomatic immunity or diplomatic inviolability. The Labour Tribunal concluded that the Vienna Convention excludes, implicitly but clearly the fact that an assignation constitutes the exercise of jurisdiction power and would therefore not constitute an attack on the immunity (art 31.1, 31.4 and art. 3239).

(a) A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission; (b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; (c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. 2. A diplomatic agent is not obliged to give evidence as a witness. 3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under sub-paragraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence. 4. The immunity of a diplomatic agent from the jurisdiction of the State does not exempt him from the jurisdiction of the sending State.” 38 Article 39.2 provides : “When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist.” 39 Article 32 lists the cases in which a waiver of jurisdiction is permitted:



The Labour Tribunal eventually found that it could exercise jurisdiction at the moment the case was being heard, given the fact that the defendant’s diplomatic mission had ended and the defendants had left Belgium. It thus held that the defendants had to pay the sums claimed by the plaintiffs.

The defendants submitted an appeal against the Labour Tribunal’s verdict. In its decision of 25 November 2002 the Higher Court affirmed the position adopted by the Labour Tribunal concerning immunity from jurisdiction and the moment at which it was to be assessed.40, and decided to reopen the debate in order to give a final decision on the background of the case.

In an April 28th 2003 decision the Court confirmed the decision of the Labour Tribunal (court of first instance) about the background of the case, except with regard to the indemnity payment for pregnancy, which it found to be non cumulative with the indemnity for abusive dismissal, as well as the medical expenses, which were slightly reduced.

Questions

The Committee might consider asking Belgium:

• Is it considering signature and ratification of the 1990 UN Convention on migrant workers and members of their families?

• Is it considering signature and ratification of ILO convention No. 143 on migrant workers and members of their families?

• Is it considering applying the recommendations of the European Council (Council of Europe) study, at both a national and international level?

“1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 2. Waiver must always be express. 3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim. 4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver of immunity in respect of the execution of the judgement, for which a separate waiver shall be necessary.” 40 The Court based its decision on the right to an equitable process, guaranteed by article 6.1 of the European Convention on Human Rights (CHR). The right to jurisdictional immunity cannot limit the right of access to a court in such manner that this access right is denied any meaning. The limitation of the access right is uniquely acceptable if there is a balance between the objectives pursued and the means used. The Court noted that it was only after the employee plaintiffs had filed numerous injunctions that the employers (defendants) finally communicated their US address to them. The employees had no possibility of arguing before a US court thus the Labour Tribunal was at that time, based on Article 6 of the CHR, entitled to exercise jurisdiction over the case. In addition, the immunity for the acts in question, which occurred in the employer’s private capacity, is less absolute and only temporary, since it only applies for the duration of the diplomatic mission. The objective of this immunity, to ensure the effective functioning of the diplomatic mission, can be realized just as well if, after a summons before a Belgian court, the procedure is suspended for the duration of the immunity. The Court noted that this interpretation maintains a balance between the employee’s right of access to a court and the diplomat’s right to immunity. In this sense, the jurisdictional immunity only serves to delay the commencement of proceedings.




Recommendations

The Committee might recommend to Belgium:

• Sign and ratify the 1990 UN Convention on migrant workers and members of their families.

• Sign and ratify ILO convention No. 143 on migrant workers and members of their families;

• Invite/accept a mission of the special rapporteur of the Human Rights Commission on the rights of migrants in Belgium, concerning discrimination in employment based on ethnic origin;

• Undertake a national survey on the issue of migrant workers and members of their families aiming at improving the protection of their rights.



The Right to Health Care 41

Access to health care for the most vulnerable groups is a pressing issue in Belgium, particularly for asylum seekers, people who have failed to obtain asylum and illegal immigrants who never applied for asylum. The reality is that there is no need for these under-privileged to be denied medical care in Belgium. The problem of access is not intractable; it is simply a question of willingness on behalf of the Belgian authorities and the Public Centre for Social Assistance (PCSA) in particular to ensure that solutions are put in place. The authorities are proving reluctant to impose even the most basic coherence on the work of the PCSA despite the appalling financial and human implications engendered by the current situation. With demand not set to diminish in the near future, the situation of healthcare for the under-privileged is certainly to deteriorate further, unless action is taken soon.

MSF regrets it is unable to speak out on other health matters (such as e.g. infant mortality rate, environmental and industrial hygiene, etc.) and other vulnerable groups (homeless people, Belgians living in poverty, older people…).

Article 12 of the Covenant on Economic, Social and Cultural Rights (CESCR) reads: "1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness."

Article 2.1 of the CESCR reads: The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised 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.

As regards illegal residents, (i.e. immigrants who never claimed asylum and people whose application for asylum was refused by the Belgian authorities and who became therefore illegal) specific provisions of the organic law on the PCSAs provide that they have a right to urgent medical care. The Royal Decree of 12

41 Médécins sans frontières Belgique – Artsen zonder Grenzen België, Dupréstraat 94, 1090 Brussels – Contact: Gorik Ooms, phone: + 32 2 474 74 01, e-mail: [email protected]

Justification

Legal Frame-work and Obligations Related to Health Care

Issues of Concern



December 1996 further specifies that urgent medical care includes preventative and curative care, ambulatory care and hospitalisations. The PCSA in the community where the illegal immigrant resides is responsible for paying the urgent medical care costs.

As regards asylum seekers, an asylum centre or a community is appointed to them when they arrive in the country. The asylum centre (or the PCSA of the appointed community in some cases) is then responsible for paying for medical acts that are deemed necessary for him/her to live in dignity, whether the asylum seekers resides at the asylum centre or not.

Yet a variety of difficulties render the whole picture problematic.

Administrative difficulties

- Concerning illegal immigrants:

With numerous grey areas in the legislation (such as a failure to define what constitutes an ‘emergency medical act’) and a significant degree of autonomy for each PCSA the implementation of regulations varies not only from one city to another, but even from one ‘commune’ to the next. Determining factors are multiple, ranging from the internal organization of a particular PCSA to the level of demand for services.

Each PCSA has its own standard form that has to be completed by the doctor. This means that general practitioners have to familiarise themselves with the different procedures and forms in the different communities as well as keeping informed of all administrative changes. For each medical act most PCSAs implement a research procedure (a) in order to verify whether the patient lives on the territory of the community and (b) whether the patient is really in a 'state of need' – this is 'without resources'. In most cases the procedure is slow and difficult to complete. General practitioners, who treat illegal immigrants, are discouraged from doing so due to the difficult and complicated administrative procedures required by the PCSAs. The consequence is that either they refuse to see illegal immigrants after a certain period of time, or they treat them for free – which is also not a long-term solution.

The delays and complexities inherent in the system mean that some people requiring health care prefer to ignore early warnings of illness in the hope that these do not translate into something more serious. Doing so is not without consequences, with patients regularly forced to go directly to the hospital emergency room when previously avoidable complications arise. Risks to both mother and baby because there is a lack of routine observation during pregnancy provides one particularly stark example.

While the human side of the equation is bad enough, obliging people to wait until care becomes urgent, also has significant financial implications since first line-treatment for illnesses such as diabetes and hypertension are much less expensive than the cost of dealing with complications.

- Concerning asylum seekers

Many asylum seekers do not reside at the asylum centre, which was appointed to them. If asylum seekers require medical care, they need to request a certificate from the asylum centre to which they have been assigned. A new certificate is required for each medical act, including follow-up visits. The certificate states that the asylum centre will pay the medical costs. Just like with the procedure 'Aide médicale urgente' for illegal immigrants, doctors find it very time-consuming to fulfil this administrative requirement each time a medical act is necessary.



The communication

- Concerning illegal immigrants

The PCSAs are responsible for communications with doctors, pharmacists and hospitals on their territory. The quality and accuracy of these communications differs from one PCSA to the next. In some areas doctors are not even aware of the existence of a law on 'Aide médicale urgente'. When they are, they may not know how to get refunded for their consultations. Further, when procedures change, doctors are not always informed.


Asylum seekers, who are not residing at an asylum centre, are often unaware that the centre is still responsible for paying their medical costs. When such a person goes to a hospital, a doctor or a pharmacist, there is often confusion as to who should pay. Either the asylum seeker pays for it themselves, the consultation or medication is for free (which is okay when a doctor only has one or two patients with this status but not when many asylum seekers regularly seek their assistance) or the PCSA is asked to pay for the costs. The PCSA will then refuse because the asylum seeker is still assigned to an asylum centre, which is responsible for paying these costs.

As with illegal immigrants asylum seekers often they do not know their rights; and are unaware that they have the right to free medical treatment. When they have to pay their medical costs - everything or just a small amount – these people are not very likely to file complaint at the police or go and seek a lawyer in order to enforce their right to free treatment.

Even when doctors make the effort to find out whether an asylum seeker is still appointed to an asylum centre, this does not guarantee that eventually they will obtain payment. The doctor has to call the dispatching office to get information about the patient’s status and to determine which asylum centre is responsible for payment. Most doctors are not informed about this possibility so again they either treat asylum seekers for free or refuse to treat them.

Some asylum centres do not send a certificate guaranteeing payment until the day before the exam or appointment. The asylum centres do not want to take the chance that the asylum seeker might become illegal during the period between which an appointment is given and the appointment itself. This is because when the person is no longer an asylum seeker, the asylum centre is no longer responsible for the payment. (The local PCSA in which the individual resides would be responsible.) If the asylum centre paid the medical costs for an illegal immigrant, the federal government would not refund the centre. This means that the patient, doctor, hospital etc. remains uncertain as to whether the exam or appointment can go through until shortly before it does. When the person at the asylum centre who is responsible for sending the certificate fails to do so, the patient has to cancel the appointment or exam or pay for it himself or herself.

Delays in payment

- Concerning illegal immigrants

The local PCSA pays doctors, hospitals and pharmacists for services provided to illegal immigrants. The federal government then reimburses the PCSA. The Ministry of Social Integration takes up to a year to refund the PCSA for those costs, although some improvements have been made during the past year. For PCSAs with a lot of illegal immigrants on their territory, this causes them financial



difficulties. Some PCSA have so many demands that they only pay the doctors, pharmacists and hospitals after the federal government pays the PCSA themselves. In practice this means that doctors can wait a year and a half to be paid for a consultation. One consequence is that a large number of doctors refuse to treat illegal immigrants because they suspect they will not get paid and/or because they are tired of waiting such a long time for payment. The same goes for pharmacists, hospitals and also other health care suppliers like physiotherapists, dentists etc.


Problems with asylum seekers are similar. Health care suppliers have to wait too long for payment and therefore refuse patients.

A group of pharmacists in Antwerp has refused to collaborate any further with asylum centres because the delay in payment is so long and they have received only partial reimbursement for all they have supplied. Ultimately, the asylum seeker suffers because of these delays, as he/she will not obtain the necessary medicine or medical care.

Questions

The Committee might wish to raise the following questions:

• Is Belgium prepared to sign 'The convention on the protection of the rights of all migrant workers and members of their families'?

• Is Belgium prepared to commit itself to real access to health care for everyone in the country?

• What are the prospects in the near future for facilitating access to health care for vulnerable groups, in particular the above-mentioned ones?

• When real access to health care would be obtained for illegal immigrants and asylum seekers, would Belgium be prepared to promote this system in other European countries?

Recommendations

The Committee could consider recommending:

• to harmonise the procedures that are being used by the different PCASs and the asylum centres. A standardization or even a promotion of a medical card, which guarantees that for any healthcare problem the PCAS or asylum centre will pay - on the condition that a doctor states that treatment is necessary - would improve access to health care. Patients, doctors, hospitals and pharmacists would be at ease because the card would guarantee payment. Secondly, the promotion of follow-up by a general practitioner would not only mean that chronically ill people, expectant mothers, children, etc. are treated more efficiently but would also decrease the costs for the PCAS and the asylum centres, as well as for the hospitals and in the end the federal government. Thirdly, patients do not have to go to the PCSA each time they need medical care , which also results in lower administrative costs and less of a burden on the patient and the system .

• to reduce the delays in payment by the federal government, to the PCASs and the asylum centres. A short waiting period would motivate healthcare suppliers to continue treating this public.

Questions and Recommenda-tions



Rights of Indigenous Peoples 42

Indigenous Peoples in Belgium

There are about 1500 Manush people living in Belgium. They are the descendants of the people called “Egyptians” of which one of the first groups arrived in 1421 in Bruges. They are today living mainly in trailers on camping sites although some do live in brick houses. Their mother tongue is Sinti Romanes, their second language the one of the region where they use to live. Some Manush are Roman Catholic, others adhere to their own Pentecostal Church.

There are about 750 Rom people in Belgium. They arrived in Belgium in the second half of the 19th century after the abolition of their slavery status in Romania in 1855. Their native language is Vlax Romanes, their second language is French. Rom live semi-nomadically: they travel in trailers from May till October and stay at private or public camping sites during winter. They all adhere to their own Pentecostal Church. Migration of Rom to Western Europe never came to a complete stop. However during the Cold War it was very hard to move to the West because of the Iron Curtain. After the collapse of the East Bloc a new wave of migration of Rom(a) started. Ethnically the Rom are thus very closely related to the Roma. Although there are more than twenty Vlax Romanes dialects, they are all inherently intelligible. There are an increasing number of marriages between Belgian Rom man and Slovakian Roma women.

Most Manush and Rom living and travelling in Belgium do have the Belgian nationality although during spring and summer, larger groups of Rom and Manush, mostly coming from other EU Member States are passing through Belgium. These groups may vary from 30 to 150 trailers and do often have family or social ties with the “Belgian” Manush and Rom.

Manush and Rom (and Travellers, descendants of the former Flemish or Walloon occupational travellers) share a common history of rejection, repression and persecution. The Manush and Rom share on top of that a history of genocide during the Second World War. The gap between their society and the dominant society is filled with distrust, fear and disapproval. Living in a survival culture does not leave very much space for long-term planning. Experiencing a hard life, with manifold misfortunes, a lot of family members dying young, and having to hide also makes the past something to forget. The most important thing is how to manage today. Manush and Rom communities are organized in a non-hierarchical way with strong family ties. The most common way of organization is the kumpagna: a flexible and temporary union of individuals around a nucleus of a family but with outsiders in it as well. A kumpagna can be spread over several countries and the membership can vary in time or according to economic needs. Only among women there is a more pronounced hierarchy: at the top the grandmother, then the daughters and the daughters-in-law, then the grandchildren.

Education

Traditional Rom and Manush education contains little discipline. Punishment and reward seem to be rather depending on the situation than being linked to a fixed

42 KWIA, Kortrijksepoortstraat 192, 9000 Ghent – Contact: Johan Bosman, phone: +32 9 330 84 30, Fax: + 32 9 330 84 30, e-mail: [email protected]

Justification



system of good and bad. Children are not only educated by the parents but also by the extended family and the other inhabitants of the trailer sites. This makes that Rom and Manush children follow in an early stage the adults’ rhythm of life. The boys start accompanying their father, uncle, etc. at a very early age; the girls are given tasks in housekeeping. Core elements of Rom and Manush culture are autonomy and flexibility for men, family life for women. Belgian Manush and Rom do not write in their native language and have been even opposed to education in their native language because they consider their language as a secret communication tool which provides a sense of security against the threats of dominant society. This however may change with the immigration of Roma, who already outnumber the Rom and Manush, who do ask for education in Vlax Romanes.

Belgium is not respecting the right to education of the Manush and Rom people living in Belgium. There is no adequate education for Manush and Rom children in Belgium, including in Sinti Romanes and Vlax Romanes, nor is there a dialogue between the Belgian federal or regional authorities and the Manush and Roma people with a view of setting up such education.

Article 2 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads: Each State Party to the present Covenant undertakes to take steps, individually and through international co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

Article 13 of the ICESCR reads: “The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect or human rights and fundamental freedoms.”

Article 13 of the ICESCR focuses very much on traditional forms of learning as they have been developed in sedentary, urbanised and even industrialised societies, which represent for the indigenous peoples in general and the Manush and Rom peoples in particular the dominant and hostile society. These traditional forms of education may not be pertinent or adequate for indigenous peoples. A comparative lecture of the articles related to the right to education in the ICESCR and the ILO Conventions 107 and 169 learns that the provisions of the ILO Conventions 107 and 169 are more pertinent and adequate to represent the spirit of Article 13 of the ICESCR with regard to the rights of indigenous and/or (semi-) nomadic children.

Belgium has ratified ILO Convention 107 concerning the Protection and Integration of Indigenous and Other Tribal and Semi-tribal Populations in Independent Countries (1959). Its art. 23 (1) reads: “Children belonging to the populations concerned shall be taught to read and write in their mother tongue or, where this is not practicable, in the language most commonly used by the group to which they belong.”

Belgium has not yet ratified ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989) which revised ILO Convention 107. This ILO Convention 169 reads in art. 27: “(1) Education programmes and services for the peoples concerned shall be developed and implemented in co-operation with them to address their special needs, and shall incorporate their histories, their knowledge and technologies, their value systems and their future

Legal Frame-work and Obligations Related to the Right to Education of Indigenous Peoples



social, economic and cultural aspirations. (2) The competent authority shall ensure the training of members of these peoples and their involvement in the formulation and implementation of education programmes, with a view to progressive transfer of responsibility for the conduct of these programmes to these peoples as appropriate. (3) In addition, governments shall recognize the right of these peoples to establish their own educational institutions and facilities, provided that such institutions meet minimum standards established by competent authority in consultation with these peoples. Appropriate resources shall be provided for this purpose.”

Art. 28 (1) ILO Convention 169 reads: “Children belonging to the peoples concerned shall, wherever practicable, be taught to read and write in their own indigenous language or in the language most commonly used by the group to which they belong. When this is not practicable, the competent authorities shall undertake consultations with these peoples with a view to the adoption of measures to achieve this objective.” Art. 28 (3) Convention 169 reads: “Measures shall be taken to preserve and promote the development and practise of indigenous languages of the peoples concerned.”

In a reaction to questions received from amongst others the Belgian, German and Swiss Governments, a committee of legal experts of the ILO came to the conclusion that Rom and Sinti (Manush) fulfil in a sufficient way the criteria to fall under the concept “indigenous people” as set out in the Study of the Problem of Discrimination Against Indigenous Peoples by José Martinez Cobo (E/CN.4/Sub.2/1986/7), and should therefore be able to use the ILO Conventions 107 and 169 to have their rights respected.

There are very few statistical data with regard to education of Manush, Rom and Travellers in Belgium. However the few data that exist present a very shocking picture of the situation. A 1994 survey shows that 81% of the Manush children were registered in a school, but only 67.8% of the children in the age for attending secondary school did attend it. Only 18.8% of the Rom children attended school and not a single Rom child attended secondary school.

The most recent statistical data are from 2001 and are based on a limited survey of 175 families (192 children from 3 to 18 years) of Belgian Manush, Rom and Travellers. 45.36% did not attend school, 9.62% attended kindergarten, 25.77% attended primary school, 3.78% attended secondary school (of which 3.09% attended a technical school and only 0.69% a general secondary school), 6.87% followed a professional training, 6.18% attended a special school (i.e. for mentally disabled) and for 2.41% it was unknown. According to the Flemish Centre for Social Work concerning Trailers (Vlaams Centrum voor Woonwagenwerk), an NGO specialized in working with Manush, Rom and Travellers, 97% of the adult Rom are to be considered as virtually illiterate.

There are no provisions for adequate education for Manush and Rom children in Belgium, including education in Sinti Romanes and Vlax Romanes, nor is there an organized structural dialogue between the Belgian federal or regional authorities and the Manush and Roma people with a view of setting up such facilities. There is no policy to tackle the non-enrolment and absenteeism of Rom and Manush children by providing e.g. class free teachers who reach out to the families. There is no distant learning system to provide education to children of travelling families nor is there a programme to provide for teachers that travel together with the families, as exists in France where there are a number of mobile truck schools, although being operated by NGOs.

Issues of Concern



This situation is in violation of article 13 of the ICESCR with regard to the Roma people living in Belgium. It is equally contrary to ILO Convention 107 and ILO Convention 169 with regard to the Rom and Manush peoples living in Belgium. Moreover, Belgium has also failed to implement Recommendation 66 made to the EU Member States by the Commission of Inquiry on Racism and Xenophobia of the European Parliament in its Report of 1991, which reads: “To respect the traditional way of life of gypsies and other nomadic communities, by encouraging the establishment of the required infrastructure that way of life requires, both at the external borders and within the Community.”43.

Questions

The Committee might ask:

• which steps Belgium takes to implement Article 13 of the ICESCR with regard to the Manush and Rom people living in Belgium

• why Belgium is not ratifying ILO Convention 169.

Recommendations


• to set up a structural dialogue between the Belgian federal or regional authorities and the Manush and Rom peoples with a view of setting up adequate educational and other necessary facilities and to provide sufficient means for adequate education for Manush and Rom in Belgium.

• to ratify, implement and promote ILO Convention 169.

43 « Respecter le mode de vie traditionnel des gitans et autres communautés nomades, en favorisant la mise en place des infrastructures nécessaires à ce mode de vie, tant aux frontières extérieures qu’à l’intérieur de la Communauté. »



1

Part II: Compliance of Belgium with its Internation al Obligations under the Int ernational Covenant

on Economic, Social and Cultural Rights --------------------------------


International Obligations 2

Table of Contents

INTRODUCTION .............................................................................................................. 4

NATURE OF INTERNATIONAL OBLIGATIONS....................................................................... 4 International Obligations............................................................................................. 4 Respect, Protect and Fulfil........................................................................................... 4

REPORTING OBLIGATIONS OF BELGIUM ............................................................................. 5 RECOMMEN-DATIONS AND QUESTIONS............................................................................. 5

INTERNATIONAL ASSISTANCE AND CO-OPERATION .......... .............................. 6

JUSTIFICATION .................................................................................................................. 6 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO INTERNATIONAL CO-OPERATION. 6 ISSUES OF CONCERN.......................................................................................................... 7

The budget.................................................................................................................... 7 ODA-eligibility............................................................................................................. 7 Long-term commitments............................................................................................... 8

RECOMMEN-DATIONS AND QUESTIONS............................................................................. 8 Questions...................................................................................................................... 8 Recommendations ........................................................................................................ 8

THE RIGHT TO HEALTH IN THIRD COUNTRIES............. .................................... 10

JUSTIFICATION ................................................................................................................ 10 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO HEALTH ............. 10

Article 2.1 of the ICESCR states ................................................................................ 10 Article 12 of the ICESCR provides............................................................................. 10

ISSUES OF CONCERN WITH REGARD TO THE OBLIGATION TO RESPECT............................. 12 1. Health Care............................................................................................................ 12

Examples.............................................................................................................................. 12 2. Health Insurance Schemes ................................................................................ 14

Examples.............................................................................................................................. 15 ISSUES OF CONCERN WITH REGARD TO THE OBLIGATION TO PROTECT............................. 17

Examples.............................................................................................................................. 18 ISSUES OF CONCERN WITH REGARD TO THE OBLIGATION TO FULFIL ................................ 19 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 22


THE RIGHT TO FOOD IN THIRD COUNTRIES ............... ....................................... 24

JUSTIFICATION ................................................................................................................ 24 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO FOOD.................. 24 ISSUES OF CONCERN........................................................................................................ 25

Failure to respect and fulfil the right to food: export of agricultural products to African countries........................................................................................................ 25 Failure to respect: fishing protocol in the EU-Chile free trade agreement and other fishery agreements ..................................................................................................... 26 Failure to protect: World Bank mining policy recommendations and financing of extractive industries projects. .................................................................................... 27

• Mining policy advise .................................................................................................. 27 • Mining projects planning and evaluation.................................................................... 28

RECOMMEN-DATIONS AND QUESTIONS........................................................................... 29 Questions: .................................................................................................................. 29 Recommendations: ..................................................................................................... 29

INTERNATIONAL FINANCIAL INSTITUTIONS AND THE RIGHT TO WATER IN THIRD COUNTRIES ................................................................................................. 31

JUSTIFICATION ................................................................................................................ 31 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO INTERNATIONAL INSTITUTIONS.. 31



ISSUES OF CONCERN........................................................................................................ 32 Structural adjustment, poverty reduction and debt policies....................................... 32

Example : Aguas del Illimani-Suez...................................................................................... 34 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 35

THE RIGHT TO SOCIAL SECURITY AND WORK IN THIRD COUN TRIES...... 36

JUSTIFICATION ................................................................................................................ 36 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE RIGHT TO WORK ................ 36 ISSUES OF CONCERN........................................................................................................ 38

Failure to promote the right to work and the right to social protection in the Belgian development policies – incoherence with other policies ............................................ 38 Failure to promote a rights-based poverty approach internationally........................ 38 Migration as a work related issue to be developed in Belgian international policies 39

Case: Belgian company operating in Sri Lanka not respecting workers’ rights ................... 40 RECOMMEN-DATIONS AND QUESTIONS........................................................................... 41


STATE SUPPORT FOR COMPANIES: OFFICIALLY SUPPORTED E XPORT CREDITS........................................................................................................................... 42

JUSTIFICATION ................................................................................................................ 42 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO ACTIVITIES OF COMPANIES

ABROAD.......................................................................................................................... 42 ISSUES OF CONCERN........................................................................................................ 42

Officially supported credits........................................................................................ 42 Example of a project backed by Ducroire ............................................................................ 43

With regard to activities of Belgian companies ......................................................... 43 QUESTIONS AND RECOMMENDA-TIONS........................................................................... 43


RIGHTS OF INDIGENOUS PEOPLES......................................................................... 45

JUSTIFICATION ................................................................................................................ 45 LEGAL FRAME-WORK AND OBLIGATIONS RELATED TO THE USE OF LAND AND NATURAL

RESOURCES BY INDIGENOUS PEOPLES............................................................................ 45 ISSUES OF CONCERN........................................................................................................ 46

Camisea-case ....................................................................................................................... 46 QUESTIONS AND RECOMMENDA-TIONS........................................................................... 47




Introduction

International Obligations

Co-operation among states for the realisation of economic, social and cultural rights is not only a moral obligation or a political commitment (see e.g. the 8th Millennium Development Goal), but also an obligation under international law.

Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

Apart from obligations for the domestic state, article 2 ICESCR includes also obligations for third states, the so-called international obligations. International obligations comprise all obligations incumbent on other states parties – individually and also when acting in the context of intergovernmental organisations – than the domestic state party to the ICESCR.

The Committee on Economic, Social and Cultural Rights (CESCR) stressed in its General Comment No. 3 on the nature of States parties’ obligations, that “international cooperation for development and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those States which are in a position to assist others in this regard.” (para. 14). Meanwhile, the independent expert on the right to food has paid attention to international obligations under the right to food, and academic literature on the subject is growing.

It is to be emphasized that the elaboration and recognition of international obligations does not in any way reduce the responsibility of domestic states in the South for the realisation of economic, social and cultural rights. International obligations do not replace, but complement domestic states’ obligations.

Respect, Protect and Fulfil

The tripartite typology of state obligations to respect, protect and fulfil can help to clarify the international obligations of states. The obligation to respect implies that states refrain from any action or policy that might impede the realization of economic, social and cultural rights in countries in the South. States should therefore not involve in projects that result in large-scale evictions, or abstain from participating in decisions of intergovernmental organisations that may obstruct or hinder the realisation of ESC rights.

The duty to protect requires from states to ensure that all entities subject to their control respect the enjoyment of rights in other countries. Therefore, states have the obligation to regulate the action of domestically based corporations.

Finally, from the obligation to fulfil ensues a duty to provide international aid to countries in the South when they are unable themselves of independently realising the absolute minimum norms of ESC rights, or in the context of disaster relief and humanitarian assistance.

Nature of international obligations



The above shows that the international obligations under the ICESCR are more comprehensive than the Millennium Development Goals. They are moreover legally binding.

The present parallel report focuses on some international obligations of Belgium under the ICESCR. All NGOs that have participated in drafting this parallel report are active in the field of development co-operation, and deem it extremely important to highlight Belgium’s obligations under international law in this regard.

As pointed out in the CESCR’s Guidelines on the Form and Contents of Reports, countries like Belgium, which engage in development cooperation, are to report also on their development cooperation activities (para. 7).

Belgium is moreover expected to include information on how it has taken into consideration the suggestions and recommendations contained in the previous concluding observations. In these 2000 concluding observations, the CESCR recommended that Belgium “review its budget allocation for international cooperation with a view to increasing its contribution, in accordance with the United Nations recommendation”, and “encouraged the Government of Belgium, as a member of international organizations, in particular the International Monetary Fund and the World Bank, to do all it can to ensure that the policies and decisions of those organizations are in conformity with the obligations of States parties to the Covenant, in particular the obligations contained in article 2.1 concerning international assistance and cooperation.”

The following issues will be addressed in the present submission:

• International Assistance and Co-operation

• Right to Health

• Right to Food

• Right to Social Security and Work

• Multilateral Agencies, with a focus on the right to Water

• Export Credits

• Rights of Indigenous Peoples

The Committee might ask Belgium:

• to explicitly report on its international obligations under the ICESCR

The Committee might recommend Belgium:

• to explicitly recognise its international obligations under the ICESCR, and to abide by them.

Reporting obligations of Belgium




International Assistance and Co-operation 44

The degree of compliance by a donor country like Belgium with its international obligations deriving from article 2 of the ICESCR, in which States commit themselves to international assistance and co-operation, can inter alia be measured by its efforts and achievements in the field of development co-operation, both in financial and qualitative terms.

In this part, Belgium’s financial efforts in the field of development co-operation are focused on. The ESCR-Committee recommended Belgium in its previous Concluding Observations (UN Doc. E/C.12/1/Add.54, para. 30) to raise the budget for development co-operation in order to meet the 0,7 % target as set by the General Assembly of the UN.

Belgium never lived up to this commitment to spend 0,7 % of its GNP on development co-operation. Recently however, the political parties in power committed themselves to reaching the 0,7 % goal by 2010. The coalition welcomes this commitment, but would like to stress at the same time that the increase in the budget must be real, and not brought about artificially through broadening ODA-eligibility criteria at the OECD level. Within the OECD DAC, discussions to include expenses related to certain aspects of defence, terrorism, refugees, the environment, … are ongoing.

The obligation for donor countries to assist other countries in progressively realizing ESC rights derives from article 2 of the covenant. The phrase “to the maximum of its available resources refers to both the resources within the state and the resources available from the international community” (General Comment No. 3, The Nature of States Parties Obligations’, 14/12/1990). Again, art. 23 of the covenant refers to ‘the furnishing of technical assistance’ as well as other activities, as being among the means of international action for the achievement of the rights recognized (ibid.). Moreover, the ESCR-Committee has stated that “international co-operation for development, and thus for the realization of economic, social and cultural rights is an obligation of all States. It is particularly incumbent upon those states, which are in a position to assist others in this regard. The Committee also emphasizes that ‘in the absence of an active programme of international assistance and co-operation on the part of all those states that are in a position to undertake one, the full realization of ESC-rights will remain an unfulfilled aspiration in many countries’” (ibid., para. 14).

Neither the covenant nor the general comments 2 and 3 refer to the 0,7% target to measure compliance by the donor community with article 2 of the covenant. The donor community itself sets it however as a standard to determine the budget each state has to allocate to international co-operation. It is therefore logical to use the 0,7% of GNP-target as a standard to – quantitatively – measure compliance and progress.

44 11.11.11, Coalition of the Flemish North-South Movement, Vlasfabriekstraat 11, 1060 Brussels – Contact: Han Verleyen, phone: + 32 2 536 11 50, fax.: + 32 2 536 19 06, e-mail: [email protected].

Justification

Legal Frame-work and Obligations Related to International Co-operation



The budget

In the period 2000-2005, Belgian Development Co-operation rose from 0,36% of GNP in 2000 to 0,61% in 2003. Belgium committed itself to reaching 0,7% in 2010 and seems to climb steadily towards that goal.

Still, the drafters of this report are not satisfied with the budget dedicated to development co-operation. The steady rise is to be qualified as ‘largely artificial’. The increase from 0,37 % of GNP in 2001 to 0,43% in 2002 was by and large the result of debt relief operations mostly benefiting the National Office de Ducroire, the Belgian Export Credit agency. The same phenomenon could be noted in 2003: the rise from 0,43% of GNP in 2002 to 0,61% of GNP in 2003 was entirely the result of a debt relief operation towards Congo. This debt relief operation inflated the Belgian Co-operation expenses for 2003 with more than 600 million Euro. In reality, however, the Congolese government did not receive or gain one additional Euro. The debt has moreover ‘devaluated’ and is only worth a fraction of its original value.

The drafters of this report are in favour of debt relief operations, but notice that the resulting increase in the budget is to a large extent virtual. If Belgium wants to live up to its obligation to assist other countries in meeting their international ESC rights obligations, it must do so through increasing its ODA with extra money, and additional to the required debt relief operations. In 2004 ODA in Belgium fell in real terms (-30.3%), after the peak in 2003 caused by the debt relief operation. That there would be a decrease in 2004 was to be expected, but that the decrease is so abrupt, is a disenchantment. Belgium gave 0.41 % of its national wealth in 2004 to development co-operation. Due to the adaptation of a law in 2002, government has to explain annually the efforts it makes to increase the budget. With a growth path it explains how it will reach the 0.7 target. But due to economic measures the growth path is not growing but declining. The government cannot keep its promises in regard to the 0.7 target. For 2004 there is also a debt relief operation for the Democratic Republic of Congo. Without this operation, Belgium would give only 0.36 of GNP to development co-operation. For 2005 the expenses for development co-operation were initially estimated 0.42 % of GNP. Thanks to intensive lobby work of NGOs, the government corrected this figure to 0.46 of GNP. But there is still the risk that economic measures will cause a decline in that figure. Moreover the correction to 0.46 % of GNP is merely the result of accounting measures. There is for example a debt relief operation of 50 million euro of Congo to Belgacom (the Belgian telephone company). But this debt is more than 50 years old and therefore worthless.

ODA-eligibility

The Coalition is also worried about the discussion within OECD/DAC on the ODA-eligibility of expenses. It has already been decided that efforts by donor countries to reach their Kyoto-target through Clean Development Mechanism-projects are to some extent ODA- eligible. Belgium supported this option within the OECD/DAC.

Other themes to be further discussed within OECD/DAC are the eligibility of expenses related to the fight against terrorism, defence, migration etc.

Belgium included already 70 million Euro related to refugees and migrants in its 2003 budget for development co-operation. Money for the reconstruction of Iraq was also partly drawn from the development co-operation budget. Again, this resulted in an artificial rise in development co-operation spending.

Issues of Concern



In 2004 Belgium contributed for the first time 6 million euro to the UN peacekeeping force in Congo ( MONUC). In 2005 it gives 7 million euro to the MONUC. These expenses are not ODA- accountable according to the OECD guidelines and can therefore not count for the 0.7 target. For reasons of transparency, the coalition asks that only ODA – accountable costs would be accounted in the development co-operation budget.

Long-term commitments

In 2003, the number of partner countries for Belgian development co-operation was reduced from 25 to 18 partner countries. In principle, the drafters of this report are in favour of concentrating development co-operation to a limited number of countries. They would like to urge Belgium, however, to be more consistent in its choice of partner countries, to enable its partner countries to make long(er) term planning.

Among the countries removed from the list of partner countries are Cambodia, Laos, Bangladesh, Burkina Faso, Ivory Coast, Ethiopia and SADC. Yet only a couple of months before, Burkina Faso and Ethiopia had hosted mixed commissions with the Belgian Government, respectively in January and March 2003. A joint commission is supposed to be a very important meeting between the donor country and the partner country to set out the main lines of co-operation in future years. However, soon after this mixed commission, Burkina Faso and Ethiopia were removed from the list of partner countries. If developing countries are expected to live up to their obligations in the field of ESC rights, they have to be able to make multi-annual planning based on realistic expectations of revenues. Moreover, it is important to have continuity in development policy.

Questions

The Committee might ask the following questions to Belgium:

• What are the prospects for the development co-operation budget in the near future? Will Belgium live up to its political commitment to reach 0,7% of GNP in 2010, and does it consider to transform this political commitment into a legally binding obligation?

• What is the Belgian position within OECD/DAC on the enlargement of ODA-eligibility?

• Is Belgium prepared to make multi-annual budgetary commitments towards its partner countries, so as to contribute to their financial capacity to realize ESC rights?

Recommendations

Recommendations that the Committee might consider for Belgium:

• The Committee should call upon the Belgian government to increase the budget for development co-operation in order to reach 0,7% of GNP in 2010 at the latest. It could encourage the Belgian government to enshrine this commitment in law, and to include the growth path to gradually reach the 0,7% in its governmental declaration. It could also ask that the growth in




spending for development co-operation be real and genuine, and not the mere result of larger eligibility of existing expenses in other governmental fields.

• The Committee might also invite the Belgian government to take a firm position within the OECD/DAC so as not to enlarge the ODA-eligibility to include expenses that are not beneficial to the poor within the partner countries. ODA spending must be inspired by the development plans of the partner countries. Only when expenses match the existing OECD/DAC criteria, and are inspired by the development strategies of the partner countries, they merit the ODA label.

• The Committee could ask the Belgian government to ensure higher predictability of its development co-operation efforts, inter alia by not changing the list of partner countries too frequently, and by making multi-annual budgetary commitments, both in the strategy papers as drawn up by the Directorate-General for Development Co-operation as well as in the annual budget.



The Right to Health in Third Countries 45

Health is a fundamental human right indispensable for the exercise of other human rights. Every human being is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.

The Alma-Ata Declaration proclaims that the existing gross inequality in the health status of the people, particularly between developed and developing countries, as well as within countries, is politically, socially and economically unacceptable and is, therefore, of common concern to all countries. (Article II, Alma-Ata Declaration, Report of the International Conference on Primary Health Care, Alma-Ata, 6-12 September 1978)

Articles 2.1 and 12 of the International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]. The Right to the Highest Attainable Standard of Health, General Comment No.14, Comm. on Econ., Soc. & Cult. Rts, 22nd Sess., U.N. Doc. No. E/C.12/2000/4.46

Article 2.1 of the ICESCR states

Each State party to the present Covenant undertakes to take steps individually and through international assistance and cooperation especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate mean, including particularly the adoption of legislative measures.

Article 12 of the ICESCR provides 1. The States parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. 2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: (a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child; (b) The improvement of all aspects of environmental and industrial hygiene; (c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases; (d) The creation of conditions, which would assure to all medical service and medical attention in the event of sickness.

In General Comment 14 the UN Committee on Economic, Social and Cultural Rights (the “Committee”) drew attention to the obligation of all States parties to

45 Médécins sans frontières Belgique – Artsen zonder Grenzen België, Dupréstraat 94, 1090 Brussels – Contact: Gorik Ooms, phone: + 32 2 474 74 01, e-mail: [email protected] 46 http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En?OpenDocument

Justification

Legal Frame-work and Obligations Related to the Right to Health



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 health. In the spirit of article 56 of the Charter of the United Nations, the specific provisions of the Covenant (articles 12, 2.1, 22 and 23) and the Alma-Ata Declaration on primary health care, 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 health. In this regard, States parties are referred to the Alma-Ata Declaration which proclaims that the existing gross inequality in the health status of the people, particularly between developed and developing countries, as well as within countries, is politically, socially and economically unacceptable and is, therefore, of common concern to all countries. (Paragraph 38)

In paragraph 39 it specified that to comply with their international obligations in relation to article 12 of the ICESCR States parties have to respect the enjoyment of the right to health in other countries, and to 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. Depending on the availability of resources, States should facilitate access to essential health facilities, goods and services in other countries, wherever possible and provide the necessary aid when required. States parties should ensure that the right to health is given due attention in international agreements and, to that end, should consider the development of further legal instruments. In relation to the conclusion of other international agreements, States parties should take steps to ensure that these instruments do not adversely impact upon the right to health. Similarly, States parties have an obligation to ensure that their actions as members of international organizations take due account of the right to health. Accordingly, States parties, which are members of international financial institutions, notably the International Monetary Fund, the World Bank, and regional development banks, should pay greater attention to the protection of the right to health in influencing the lending policies, credit agreements and international measures of these institutions.

In paragraph 43 the Committee outlines the core obligations to realize the right to health noting “in the Committee's view, these core obligations include at least the following obligations: (a) To ensure the right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups; (b) To ensure access to the minimum essential food which is nutritionally adequate and safe, to ensure freedom from hunger to everyone; (c) To ensure access to basic shelter, housing and sanitation, and an adequate supply of safe and potable water; (d) To provide essential drugs, as from time to time defined under the WHO Action Programme on Essential Drugs; (e) To ensure equitable distribution of all health facilities, goods and services; (f) To adopt and implement a national public health strategy and plan of action, on the basis of epidemiological evidence, addressing the health concerns of the whole population; the strategy and plan of action shall be devised, and periodically reviewed, on the basis of a participatory and transparent process; they shall include methods, such as right to health indicators and benchmarks, by which progress can be closely monitored; the process by which the strategy and plan of action are devised, as well as their content, shall give particular attention to all vulnerable or marginalized groups.”



The promotion of cost recovery schemes, including user fees for essential health care and local health insurance schemes which exclude the poor.

1. Health Care

For many years, Belgian development assistance for health care has included cost recovery mechanisms (e.g. user fees for drugs and for services), which are now widely recognised to result in reduced attendance rates and thus impact on access to health care.47 The Millennium Project has clearly stated that user fees for primary health care should be abolished (latest by end 2006), partly because of their contribution to exclusion and further impoverishment, but also because they contribute to curbing coverage of essential health care, especially for the poor. Thus user fees act as an obstacle to achieving the Millennium Development Goals, to which Belgium has also subscribed.48

Despite experience and research that points to the excluding impact of cost recovery schemes and in particular to the detrimental effect on the poor in terms of exclusion from care and further impoverishment, Belgium has not conducted a fundamental review of policy and practice. The Belgian Directorate General for Development Cooperation (DGCD) continues to fund direct and indirect cooperation projects that promote user fees for primary health care. DGCD’s country strategic notes49 and the project descriptions on the Belgian Technical Cooperation’s (BTC - the technical implementation arm of the Belgian Cooperation) website50 clearly illustrate that user fees remain part of Belgian supported projects in key partner countries.

In fact, DGCD has been challenging the behaviour of several medical NGOs that do not demand patient payments for primary health care. In spite of a request from Belgian NGOs there has been no revision to the user fee policy. 51 BTC continues to include them in development and technical assistance programmes without providing the necessary guarantees that vulnerable groups (including children, poor people and elderly people) have access to the programmes they fund.

Examples

Burundi

The excluding effect has been illustrated recently in Burundi, where a country-wide survey indicated that people depending on health centres applying cost recovery, were significantly worse off in terms of access to primary health care, in terms of protection from catastrophic health expenses and in terms of health

47 Dyna Arhin-Tenkorang, Mobilizing Resources for Health: The Case for User Fees Revisited http://www.cid.harvard.edu/cidwp/081.htm 48 Millennium Project, UN. Priority 5: Ending user fees for primary school and essential health services, compensated by increased donor aid as necessary, no later than the end of 2006. See: http://www.unmp.forumone.com 49 http://www.dgcd.be/fr/dgcd/notes_strategiques/index.hmtl 50 http://www.btcctb.org 51 Letter to Mme. Van Dooren, directrice générale DGCD from medical NGOs, August 1, 2003

Issues of Concern with regard to the obligation to respect



status.52 DGCD finances and BTC provides technical assistance to health projects in the Burundian provinces of Mwaro and Kirundo, which apply a similar cost recovery system.

One in five patients living close to public health centres was completely excluded from care, 5% of patients did not obtain complete treatment – both mainly because of financial reasons – and from those attending, 85% had to resort to going into debt or selling off goods in order to pay. Less than 1% of patients were exempted by the waiver system in place and there was no connection between exemption and vulnerability. Further, mortality due to malaria was significantly higher in areas around health centres with cost recovery; specific mortality rates were double those in malaria patients around health centres applying a lower all-in flat fee. Other incidents linked to payment for care were reported, such as imprisonment of patients that were unable to pay, refusal to provide life-saving care and confiscation of identity papers.

When the issue of Burundi was raised in a recent question to the Belgian Parliament, the Minister of Development Cooperation limited his response to referring to the Belgian policy of promoting waiver systems for those unable to afford user fees and/or local health insurance mechanisms53. This statement does not address the real issue, as waiver systems have been shown to fail protect the poor in general54 and specifically in recent experience in Burundi (MSF), Ethiopia (SCF55) and elsewhere.

Democratic Republic of the Congo

Similarly, in an earlier population survey in the Democratic Republic of the Congo (DRC) high rates of exclusion were documented, mainly due to potential patients’ lack of money (Van Herp et al.56). User fees – even very low to current standards – constitute a major obstacle to health care in certain areas in DRC, because of shortage of cash and even total demonetisation. In a context of high mortality and in combination with other serious obstacles such as insecurity and distance, requesting payment results in exclusion of essential care for those who cannot afford it57. The MSF survey showed clearly the long lasting effects of violence on health status of people in DRC; unfortunately, user fees have been introduced too rapidly after the cease-fire.

52 All data below found in: MSF Belgium, Burundi, Les vulnérables privés de soins de santé, (The Deprivation of Health Care for Vulnerable Groups) Results of three epidemiological studies, March 2004, http://www.msf.be/fr/pdf/burundi_fr.pdf. 53 Answer of Minister Dedecker to MP Pierre Galand, 17/11/2004. 54 Russell S. and Gilson L., User fee policies to promote health services access for the poor: a wolf in sheep’s clothing? Int. J. Health Services 27, p. 359-379. and Gilson L., Government health care charges: is equity being abandoned? EPC 15, 1988, LSHTM, London. 55 Råberg, M and Jeene, H (2002). Selling out Rights - How policy affects access to health services in - East and Central Africa. Save the Children briefing paper, London. http://www.savethechildren.org.uk/temp/scuk/cache/cmsattach/607_sellingoutrights.pdf 56 Van Herp, Parque et al. Mortality, violence and lack to health care in DRC, Disasters, 2003, 27 (2e); 147-153. 57 Poletti T. et al. Cost recovery in complex emergencies: an inappropriate policy transfer. Humanitarian Exchange, 2004. and POLETTI T. (2003). Healthcare Financing in Complex Emergencies – a background issues paper on cost-sharing. London School of Hygiene and Tropical Medicine.



Not only has the BTC failed to address the problems caused by user fees in the DRC, they have promoted a significant increase in the level of user fees in health structures they fund.

In 2004 the BTC started to support health centres in the town of Kisangani, DRC. These health centres provide basic health care and prior to BTC taking over, at least 4 out of these were providing essential care at an all-inclusive low flat fee, in line with the limited cash availability and the low purchasing power of the Congolese population. When BTC took over it re-introduced cost recovery, based on fees for services (in 2004 at a level 3 to 4 times the previous price) and fees for drugs on an itemised basis. The result of this in terms of reduced access to health care is illustrated in the plummeting of attendance rates. Annex 1 includes unpublished data concerning the evolution of attendance rates for curative consultations (decrease between 38 and 58%), for deliveries (decrease between 5 and 28%). The increase in user fees and reverting to itemised cost recovery clearly reduced access for the population of Kisangani, not only for curative care and delivery care, but also for preventive care (e.g. antenatal consultations decreased). A similar unfavourable move has been noted at the beginning of 2005 when BTC promoted patient fees for STD treatment and possibly other HIV-related care in Equateur province.

Experience with the abolition of user fees in Uganda and South Africa has shown a significant impact on increased attendance rates for curative and preventive care. In particular the poorest percentiles of the population benefited from the removal of user fees (Burnham et al.58, Wilkinson et al.59, Nyabyonga.60). This experience is echoed in the appeal of the Millennium Project to abolish user fees for primary health care, compensated for by international funds. In spite of the available scientific arguments in favour of abolishing user fees so as to increase access to health care and its pro-poor effect, the Belgian international cooperation fails to adapt its policy and practice in low-income countries

In summary, by including cost recovery and user fees in its development projects, Belgium fails to respect the right to health, as these seriously compromise access to essential drugs and essential health facilities health care, in particular for the vulnerable and the poor.

2. Health Insurance Schemes

Belgium also promotes local or community health insurance schemes as another cost mitigation mechanism. While local health insurance schemes do seem to have a positive impact on accessibility of health services in some situations, these beneficial effects are limited to those able to afford membership and have a negative impact on the poor and other vulnerable groups.

58 Burnham G. et al. (2004) Discontinuation of cost sharing in Uganda . Bulletin of the World Health Organisation 2004, 82; 187-195. 59 Wilkinson et al. Effect of removing user fees on attendance for curative and preventive primary health care services in rural South Africa. Bulletin of the WHO, 2001; Vol 79: p. 665. 60 Nabyonga et al. (2005) Abolition of cost sharing is pro-poor: evidence from Uganda. Health policy and Planning 2005; 20(2): p.100-108.



Local health insurance schemes as supported by DGCD and BTC can generate the same problems as user fees, (Savedoff61, Musango62) only to a somewhat lesser extent; seasonal cash flow problems will be minimised and payment of fees can take place at more convenient moments, unlinked to the illness episode that affects the household’s capacity to pay. However, they change nothing with regard to the exclusion of the poorest households and they continue promoting access to the relatively wealthy segments of the populations that can afford to pay user fees or contribute to the local health insurance scheme.

The DGCD and the BTC promote local health insurance systems, such as the one set up in Bwamanda, DRC, as a model to be used in other countries. However, even in this successful initiative, over the years the adherence rate in the district was found to be at best 60%, with most of the remaining 40% opting out because lack of money. (Criel et al.63)

Examples

In Rwanda, local health insurance mechanisms are being set up without realistic provision for those who cannot afford to pay the membership fee (Porrignon64, Musango, Projet de Loi 200565). NGOs providing care at lower flat fee levels are pressured to adopt also cost recovery.

Mobilisation of local community resources through a local insurance scheme is possible, but never in sufficient quantity to compensate significantly the existing health financing gap. Without substantial external subsidy these local schemes are condemned to provide health care that is sub-standard. For example, the annual contribution per person in Rwanda is the equivalent of USD 2 (Decret de Loi), which will not purchase a fraction of the basic package of essential health care, which the WHO’s Commission on Macroeconomics and Health estimated at 34 USD per person per year66.

A recent publication points out that most of thee initiatives in low income countries are extremely small scale, with 50% catering for 1000 people or fewer, rendering these initiatives unviable. Moreover, they are extremely vulnerable to

61 Savedoff W.D. (2004) Is there a case for social insurance? Health Policy and Planning, Vol. 19, Nb.3, pp.183-184. 62 Musango L., Dujardin B., Dramaix M. and Criel B. (2005) Le profil des membres et des non membres des mutuelles de santé au Rwanda: le cas du district sanitaire de Kabutare. Tropical Medicine & International Health Volume 9, Issue 11, Page 1222-1227, November 2004 63 Criel, Van Dormael, Lefèvre, Menase & Van Lerberghe; Voluntary health insurance in Bwamanda, Democratic Republic of Congo. An exploration of its meanings to the community. Tropical Medicine and International Health Volume 3, Issue 8, Page 640-653, August 1998 64 Les performances du système de santé rwandais en situation post-critique (1997-2000); Thesis dr. Denis Porignon (2001), ULB Brussels, Belgium. 65 Projet de Loi, Rwanda. ‘Loi portant organization, fonctionnement et gestion des mutuelles de santé’. for discussion in Parliament March 2005. 66 World Health Organisation, Macro-economics and health: investing in health for economic development. Report of the Commission on macroeconomics and health, chaired by Jeffrey Sachs, Geneva, 20 December 2001..



local misuse or mismanagement.67 Most schemes fail to provide a provision for inclusion of those who cannot afford the membership premiums.

As such the basic problems of exclusion of a substantial part of the population – in particular the poor – and the lack of funding to guarantee a minimum level of essential health care remain exactly the same as with user fees. Mitigation mechanisms are known to work poorly in protecting the poor and the extra revenue raised cannot solve the health-financing gap. There is no fundamentally different approach foreseen to palliate the serious disadvantages documented from experience in various countries. From a public health perspective improved but still limited access may be an improvement but from a right to health perspective the exclusion of a substantial part of the population remains unacceptable.

Waivers or exemptions for vulnerable groups are essentially false options, which did not work with user fees and are unlikely to work in health insurance schemes.68 This is because;

1. eligibility criteria are unclear,

2. procedures to obtain waivers are complex and time consuming and

3. in particular, health staff and insurance managers are reluctant to provide waivers as this is against their interest as long as there is no third party that will pay on behalf of the uninsured patients.

This issue of patient fees and local health insurance schemes is linked to the issues of concern listed below, because the level of contributions to be paid by the population through user fees or through health insurance schemes (and the level of exclusion and discrimination) will depend on:

- external financing of primary health care facilities;

- sustainability demands by donor countries;

- and the public health expenditure levels allowed by the IMF and the World Bank.

Summary

In spite of its largely publicised negative effects and the increased appeals for abolition, Belgian development policy still promotes or condones user fees for essential health care in low income countries. In doing so Belgium fails to take responsibility for assuring that funds are used for effective and equitable health care interventions. Furthermore by advising local ministries of health to adopt user fees or inappropriate local health insurance mechanisms, they do exactly the opposite of what is expected from them in terms of helping other nations to progress towards realisation of the right to health care of its population.

Belgian development projects fail to protect the poor from exclusion of their right to essential health care because of user fees and membership fees for local health insurance. Household health expenditure is directly linked to out-of pocket payments such as user fees and is known to have an impoverishing effect,

67 Savedoff, W.D., see note 16 above 68 Gilson, L. see note 9 above.



especially on the poorest households (Ke Xu et al.69); Belgium thus supports and contributes to mechanisms of iatrogenic poverty70.

Just like user fees, local health insurance schemes may mask violations of the right to health by curbing demand and putting the major part of the burden of health expenditure on the patients. They mask insufficient development aid for health, they mask sustainability demands that force health providers to keep the costs as low as possible, they mask insufficient public health expenditure levels, by making the beneficiaries pay for the financial gap.

Belgium has a responsibility in these matters as financing body of direct and indirect bilateral aid, but also as a state member of the European Union. The European Commission promotes user fees in quite a number of countries and still supports health reforms with cost recovery as main element, both through their financing policies as through their technical assistance.

Failure to influence IMF and World Bank Policies.

In its concluding observation of the previous report from Belgium, the CESCR “encourages the Government of Belgium, as a member of international organizations, in particular the International Monetary Fund and the World Bank, to do all it can to ensure that the policies and decisions of those organizations are in conformity with the obligations of States parties to the Covenant, in particular the obligations contained in article 2.1 concerning international assistance and cooperation.”

As debates at the level of the boards of the IMF and the World Bank are not public, it is difficult to assess the extent to which Belgium tried to ensure that the policies of these institutions are in conformity with the obligations of States parties.

Following criticism the IMF and World Bank replaced ‘Structural Adjustment Programmes’ (SAPs) with ‘Poverty Reduction Strategy Papers’ (PRSPs), which they claim are more country driven and focused on the needs of the poor. Despite some improvements brought about by the PRSP exercise, there are still concerns regarding the primacy of macro-economic dictates over obligations of States parties to the Covenant.

If Belgium has tried, then the IMF and the World Bank have not paid a lot of attention. They replaced the previous ‘Structural Adjustment Programmes’ (SAPs) by ‘Poverty Reduction Strategy Papers’ (PRSPs), but the underlying strategy hasn’t changed. The IMF and World Bank continue to focus on economic growth as the precondition for sustainable social services (or the realization of social human rights), and whenever increased aid flows could create unwanted macroeconomic side effects, they do not hesitate to cap them. The main difference between ‘SAPs’ and ‘PRSPs’ is that SAPs were developed by the IMF and the World Bank and approved by the government of the concerned country, whereas PRSPs are developed by the government of the concerned country and approved by the World Bank and the IMF. But this hasn’t changed the power balance. Developing countries need a PRSP approved by World Bank and IMF if they want access to loans (including loans from the International Development Association,

69 Xu Ke et al. Household catastrophic health expenditure: a multi-country analysis, Lancet 2003; Vol. 362; p. 111. 70 Meessen B., Zenzhong Z., Van Damme W. et al, Editorial: Iatrogenic poverty, Tropical Medicine and International Health;,Vol. 8, No.7, p.581-584.

Issues of concern with regard to the obligation to protect



which are funded by many States parties including Belgium, and for which States parties remain responsible), whereas IMF and World Bank don’t need the approval of these countries.

An additional incentive for developing countries to comply with the macroeconomic policies of the IMF and the World Bank, rather than with their ICESCR obligations, is that several countries, including the United Kingdom, the Netherlands and Belgium, use the PRSP as a condition and the main framework for their development assistance.71 The European Commission has indicated that its “Accelerated Action on HIV/AIDS, Malaria and Tuberculosis” action program is striving for coherence with PRSPs. 72,73 The result of this is that IMF and World Bank not only control public expenditure of these developing countries, they also control aid flows from donor countries.

Examples

Recently in Uganda the constraints to invest in improved health provisions were shown, when a grant of the Global Fund for increased funding for AIDS care was refused because exceeding the mid term expenditure framework stipulated in the PRSP.74 Action Aid has recently published further case studies where fiscal policies make effective AIDS interventions impossible.75 But mostly these MTEFs remain invisible/less obvious, as nations anticipate potential negative reactions and avoid that their budget would exceed the stipulated limits for health expenditure. This was clearly documented in a report on the Rwandan PRSP process which explains how the Rwandan government tried using the PRSP process to move away from the existing MTEF, by proposing two new expenditure frameworks -- one based on real needs (the “unconstrained” scenario), another based on a modest increase of international grants (the “constrained” scenario).76,77 Both scenarios are

71 PRSPs Questions and Answers, The World Bank Group: http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTPOVERTY/EXTPRS/0,,contentMDK:20175659~menuPK:490516~pagePK:148956~piPK:216618~theSitePK:384201,00.html 72 EC, “Update on the EC Programme for Action: Accelerated Action on HIV/AIDS, malaria and tuberculosis in the context of poverty reduction”, February 2003, http://europa.eu.int/eur-lex/en/com/cnc/2003/com2003_0093en01.pdf#zoom=100 73 The United Nations Development Group recently reaffirmed “ the central and growing importance of PRSPs in national development and international cooperation” and enhanced its engagement in the PRSP process. Guidance Note on UN Country Teams Engagement in PRSPs, UN Development Group, Aug. 30, 2004 http://www.undp.or.id/mdg/documents/Guidance%20for%20UNCT%20in%20PRSP.pdf 74 Wendo C., (2004); Ugandan officials negotiate Global Fund grants: Government limits on health-sector spending may jeopardize funding agreement. The Lancet, Vol. 363; January 17, 2004. 75 Action Aid, Blocking progress: How the fight against HIV/AIDS is being undermined by the World bank and International Monetary fund. September 2004. 76 J. Mackinnon, A. Thomson, I. Hakizinka & L. Rugwabiza, The impact of increases in public expenditure on poverty in Rwanda, PRSP Monitoring and Synthesis Project, Poverty and Social Impact Analyses, Country study: Rwanda, http://www.prspsynthesis.org/Rwanda_Final_PSIA.doc 77 See discussion on PRSPs as planning verus fundraising instruments in Poverty Reduction Strategy Paper: Their Significance for Health: Second Synthesis Report, p. 13 http://www.who.int/hdp/en/prspsig.pdf



included in the final PRSP paper, and both foresee a substantial increase in public health expenditure, including the purchase of drugs to treat AIDS.78 But as the report indicates, “the higher scenarios -- with the major increases in poverty-reducing expenditures -- were not discussed.” Furthermore, “The long-run question of financing anti-poverty expenditures out of increased external resources remained unsettled. As a result, the PRGF (Poverty Reduction and Growth Facility) document specifies that if expenditures can be identified with ‘no macroeconomic impact’ and financed by extra grants, the programme may be revised in future years to accommodate this.”79

To be allowed to provide the health care it wants to its citizens, the government of Rwanda will need to demonstrate that it has secured additional grants, and it will need to demonstrate that accepting these grants won’t have a macroeconomic impact.80 Only IMF and World Bank macroeconomists will perform the authoritative assessment of whether or not there is a macroeconomic impact.81,82 This, together with the fact that some countries might be reluctant to demand a renegotiation, is the real significance of the ceilings.

Belgium has not ensured that the policies of the IMF and the World Bank are in conformity with the obligations of States parties; on the contrary, it has delegated part of its discretionary powers over the use of its own development aid budget to the IMF and the World Bank by funding the IDA without any form of conditionality (Belgium could support the IDA but under the condition that the IDA would behave as if it were a State party itself). By using the PRSP as the key framework for its direct development aid, Belgium thus supports the violations of the ICESCR rights by the IMF and the World Bank, whereas it has an obligation to protect these rights from violations by the IMF and the World Bank.

Insufficiency of development assistance for health.

There is no clear indicator for measuring the level of development assistance a country should contribute to health care in developing countries in order to meet its obligation to fulfil the right to health care.

78 The Government of Rwanda, Poverty Reduction Strategy Paper, http://poverty.worldbank.org/files/Rwanda_PRSP.pdf

79 J. Mackinnon, A. Thomson, I. Hakizinka &L. Rugwabiza, The impact of increases in public expenditure on poverty in Rwanda, PRSP Monitoring and Synthesis Project, Poverty and Social Impact Analyses, Country study: Rwanda, http://www.prspsynthesis.org/Rwanda_Final_PSIA.doc 80 ibidem, p.24 81 In many countries only the IMF and World Bank have the capacity to perform the required detailed economic analysis in a short time. In this example, “the government did not have the capacity to produce its own scenarios to compare with the IMF model, so that the macroeconomic scenarios used in the negotiations were prepared by the IMF and understandably reflected the IMF’s concerns.” ibidem, p. 23 82 "Uganda and Tanzania both provide striking examples where the Government were able to persuade the IMF to accommodate higher expenditure by procuring independent macroeconomic analysis that commanded the respect of IMF staff." MDG-Orientated Sector And Poverty Reduction Strategies: Lessons From Experience In Health http://www.hlfhealthmdgs.org/Documents/MDGorientedPRSPs-Final.pdf (accessed 4 Dec. 2004). This confirms the preeminence of macroeconomic concerns and that IMF economists needs to be persuaded before changes are approved.

Issues of concern with regard to the obligation to fulfil



However, the Belgian General Directorate for Development Cooperation (DGCD) has adopted its own indicator, referring to the work of the WHO Commission on Macroeconomics and Health83 in its August 2002 Strategic Note on Primary Health Care 84. The DGCD has calculated that if Belgium wants to contribute a fair share (in accordance with its proportion of global wealth) to the realization of the objectives of the Commission on Macroeconomics and Health, it should increase its development assistance budget from 0,358 % of GNP to 0,7% of GNP. Out of that budget, the allocation for health should increase from 11,14% to 15%.

In comparison, the objectives of the Commission on Macroeconomics and Health are below the standards elaborated in General Comment 14 paragraph 43 as ‘core obligations’ and a little bit below the Millennium Development Goals (http://www.developmentgoals.org). As such, the fair contribution to the realization of the objectives of the Commission on Macroeconomics and Health can be considered as the minimum contribution Belgium must make to realize minimum levels of the right to health in developing countries. The failure to implement its own Strategic Note constitutes a lack of fulfilment of the obligation to fulfil the right to health.85

Furthermore, Belgium insists in most of its country policy notes that it will adopt the conditions proposed by the national PRSP. These PRSPs systematically fail to address the need to guarantee a minimum level of health and to protect the right to health of the poor. Rwanda’s PRSP86 includes USD 8 per person per year in the health budget, which is far below USD 34, the average minimum level needed as estimated by the Commission on Macroeconomics and Health. While the Commission on Macroeconomics and Health makes clear that health is a pre-requisite for economic development and not a consequence, the PRSPs for DRC, Burundi and Rwanda (all priority countries for Belgian aid) indicate the use of cost recovery and count mainly on increased economic development for people to afford user fees for essential health care.

Recently Belgium has reneged on its pledge to contribute yearly 5 million Euro to the Global Fund; they have reduced it to 1 million for 2005.87 This behaviour is in sharp contrast with its commitment to increase significantly its funds for the fight against AIDS (see strategic note on AIDS88).

Insistence on sustainability, narrowly defined as self-financing.

The abovementioned DGCD Strategic Note on Primary Health Care acknowledges the need for continued external financing of primary health care systems in developing countries. However, the legal framework for Belgian NGOs to obtain funds for projects in developing countries has not been adapted. Article 8 point 4

83 http://www.cmhealth.org 84 http://www.dgcd.be/fr/dgcd/notes_strategiques/index.hmtl 85 ACODEV and CNCD press release. Analyse de l’aide publique au développement et du budget de la Direction Générale de la Coopération au Développement 2003-2004-2005. Bruxelles, le 15 décembre 2004. 86 The Government of Rwanda, Poverty Reduction Strategy Paper, http://poverty.worldbank.org/files/Rwanda_PRSP.pdf 87 Letter from NGOs working on AIDS to the Belgian Minister of International Cooperation, March 2005. 88 http://www.dgcd.be/fr/dgcd/notes_strategiques/index.hmtl



of the Royal Decree on funding of NGOs of 1997 still mentions ‘sustainability’ of projects as one of the key criteria. This would not be a problem, if financial sustainability was given a modern interpretation, taking into account the need for continued external funding. In practice, however, projects proposed for funding are often judged on their capacity to be continued by the beneficiaries or the host state without external assistance, after the end of the project. This means that projects providing primary health care should respect an expenditure level within reach of local financing capacity, which most often results in either projects that are too poorly funded to be effective, or projects that rely on a degree of financing by the patients thus excluding the poorest and most vulnerable members of the population. Several medical NGOs have experience with this interpretation of financial sustainability during the yearly ‘dialogue’ with DGCD on the budgets submitted for DGCD financing.89 90

The Belgian NGO-Federation has made BTC aware of its concerns regarding this narrow interpretation of financial sustainability and has proposed a specific approach for projects with a social mission91; specifically, in social projects, financial sustainability should in future be defined as sustained financing, including possibly from international source. In a letter to the DGCD, the Medical NGO community labelled ‘financial sustainability’ as the priority subject for discussion and revision; this priority was included in a NGO-document intended as basis for urgent policy dialogue with DGCD.92, 93 Thus far, the DGCD has failed to organise the meeting NGOs have requested or to answer formally on these concerns in another way.

To realize the right to health, Belgium should accept the need to finance NGO run projects that are based on the assumptions of continued external financing, either through the health ministry, through NGOs or through other international donor funds. Financial sustainability or self-reliance as a key criterion violates the obligation to fulfil the right to health, as it leads to ineffective or discriminatory projects. As health care budgets in developing countries are insufficient, Belgium needs to recognise the need to finance these countries directly or through NGOs to ensure access to health care for all. It has been widely documented that under funding or the narrow interpretation of financial sustainability as self-reliance have important negative effects on access to health care for vulnerable groups. (See above discussion of cost recovery).

89 Damiaanaktie/Foundation Damien and Médecins Sans Frontières have received maintained criticism because of the lack of financial sustainability as defined by local financial capacity. In order to lessen this gap, often DGCD proposes reducing the package of care offered or making patients pay. 90 Acodev study day 2004, presentation by Jean-Michel Swaelens. 91 Coprogram : Visietekst over Financiële duurzaamheid. 2004. Also available in French: Durabilité financière. 92 Renewed letter to DGCD asking for a meeting on the subject; Demande d’un dialogue régulier entre la DGCD et les ONG médicales, November 2004. 93 ‘Pour un dialogue régulier entre la DGCD et les ONGs médicaux’, February 2005

Document prepared with the participation of : Artsen zonder vakantie( AZV), CARAES, CEMUBAC, Christelijke Blinden Missie/Mission Chrétienne pour Aveugles (CBM), Croix Rouge de Belgique – Communauté Française, Fometro/Tromefo, Fondation Damien/Damiaan Aktie, Handicap International/aal Belgique/België, INTAL (FSTM/SFDW, Médecine pour le Tiers Monde/Geneeskunde voor Derde Wereld), Louvain Développement, Médecins du monde/Dokters van de Wereld, Médecins sans frontières/Artsen Zonder Grenzen, Medicus mundi Belgium, Memisa, Solidarité protestante/Protestantse Solidariteit



Questions

Possible questions to be asked by the Committee:

• When will Belgium review its policy on user fees for essential health care in low income countries and eliminate its promotion in its development co-operation? Will Belgium comply with the Millenium Project’s recommendation to eliminate user fees for primary health94

• When will Belgium review its policy concerning health insurance schemes to ensure that vulnerable groups are not excluded and that the services package offered complies with international standards of care?

• Would Belgium be willing to condition its funds to the IDA by requiring that they are used in conformity with its obligations under the ICESCR? This would imply conditioning the funds to be used in projects that assure access to essential care and protection of the poor, but also reviewing any constraints linked to fiscal policies imposed on health budgets for adequate primary health care, effective AIDS care and control of other diseases such as malaria.

• Would Belgium be ready to abandon its present financial sustainability demands and to accept that the realization of the right to health in developing countries relies on continued external financing?

• Does Belgium intend to raise the level of development aid earmarked for health, as envisaged in the DGCD 2002 Strategic Note on Primary Health?

Recommendations

With regards to the right to health, the Committee might recommend to Belgium that it should:

• Review its health policy in terms of user fees for essential health care in poor countries. Develop and implement health projects that assure access to essential health care for all, including vulnerable groups, by abolishing financial obstacles to use of health care and promoting pro-poor targeting mechanisms

• Propose to the boards of the IMF and the World Bank that these institutions will respect, protect and fulfil all obligations resulting from ICESCR as if they were States parties themselves (if all States parties support this, they have an overwhelming majority of the voting rights in these boards); Condition any future contribution to the replenishment of the IDA – all Belgian funds should be used in conformity with the ICESCR, even if they are channelled through a multilateral institution that isn’t a State party; Reject PRSPs as frameworks

94 See Millenium Project, above note 3




for bilateral development aid, unless it has been demonstrated that these PRSPs provide sufficient budgetary space to respect, protect and fulfil the right to health.

• Increase development aid for health as foreseen in the DGCD Strategic Note and provide sustained and sufficient funds to provide adequate care.

• Review its present financial sustainability demands and accept that the realization of the right to health in developing countries relies on continued external financing.



The Right to Food in Third Countries 95

The World Food Summit process and the Millennium Development Goals have put forward objectives to reduce the number of people suffering from hunger and malnutrition. These objectives are not likely to be met. More than 850 million people suffer from hunger and malnutrition96. The progress made during the last five years has been only marginal, and largely due to a few countries such as China. In some parts of the world, such as Africa, the absolute number of hungry is even increasing. The Hunger Task Force of the U.N. Millennium Project estimated that 50% of the hungry are small farmers without enough access to resources (land, seeds, water, credit…) to be productive enough to feed their families. An additional 22% are landless, depending mostly on labour wages for survival, and 8% depend directly on natural resources for their livelihood (fishers, nomads, indigenous…). Unequal access to resources and local agricultural markets are now seen as major factors causing hunger.

In order to offer structural solutions to the causes of hunger, a truly sustained poverty-alleviation strategy is inseparable from the implementation of human rights strategies to combat hunger. As such, failures of States to abide with their obligations related to the right to food can be addressed. As a priority, highly affected sections of population such as landless people, small farmers, artisan fishers, women and indigenous peoples, must be seen as subjects of the right to an adequate living standard. Special attention is needed when these groups are affected through trade, land and investment policies. In a rapidly globalizing world, Belgium together with other States is increasingly having an impact on citizens of other countries, be it through external policies, trade and investment agreements, foreign activities of domestic companies, or through the role of this State in international organisations, such as the World Bank. It is therefore necessary to focus not only on internal obligations with regard to the right to food, but also on similar obligations applying to citizens living abroad.

Strategies on ensuring long-term food security for the most vulnerable must be the basis for designing coherent development programmes. While a relatively stable part of the Belgian development cooperation budget is spent on agriculture and food security issues, which can be welcomed, a human rights framework can result in a higher effectiveness to improve the situation of the poorest.

The human right to adequate food is part of what article 11.1 of the ICESCR calls the right to an adequate standard of living. According to General Comment 12 on the right to adequate food (1999), the right to adequate food contains the following elements:

• One’s food must be adequate in terms of nutritional quantity and quality, safe from adverse alien substances, and culturally acceptable in the context of the prevailing food patterns

95 FIAN Belgium, Van Elewyckstraat 35,1050 Brussels – Contact: Jan Bastiaens or Jonas Vanreusel, phone: +32 2 640 84 17, e-mail: [email protected], [email protected] 96 FAO (2004), “The state of Food Insecurity in the World”

Justification

Legal Frame-work and Obligations Related to the Right to Food



• There must be both economic and physical access to food without conflicting the satisfaction of other material and non-material basic needs

• Acces to food must be sustainable over time

• Acess to food must be assured in human dignity

• State obligations include in particular those that relate to the essential minimum or core content for fulfilment: the right to freedom from hunger (as expressed in art. 11.2 ICESCR). States have to improve methods of production, conservation and distribution of food including through specific programmes like developing or reforming agrarian systems.

In light of its obligation to respect the human right to adequate food, Belgium should abstain from trade policies that negatively affect vulnerable groups in other countries. In accordance with article 2 ICESCR, it has the obligation to assist other countries to progressively achieve actions and programmes to fight hunger, in order to give people threatened by hunger and malnutrition access to productive resources like land and work.

Failure to respect and fulfil the right to food: export of agricultural products to African countries.

EU export policies to developing countries are not consistent with development efforts and the food security situation in those countries. The chicken exports to West and Central Africa, which are increasing almost by 20% annually, are taken as a case to highlight the human rights issues at stake.

Cameroon, which has been a member of the WTO since 1995, experienced a twentifold increase in the import of frozen chicken parts between 1996 and 2003. Those exports are usually made of frozen cut pieces that have little value in the EU, as the only alternative market outlet in Europe is the pet food industry. The increasing flows of low cost meat to Cameroon generate unfair competition with domestic products, loss of income for local producers (indispensable for a large number of small-scale female producers) and sanitary problems. Contrary to non-agricultural agreements, the WTO still does not allow a country to tackle these enormous import surges which affect the incomes of a large part of its population. Between 2000 and 2003, the local production in Cameroon went down from 21000 tonnes, covering 60% of the need, to 13000 tonnes, causing a loss of 110 000 jobs97. Both rural and urban jobs are concerned, from peasants – the ones raising chicken and the ones involved in cereal feed production – to shopkeepers and the chicken cleansers. A study98 found that 83% of analysed chicken parts in Cameroon where not proper for human consumption because the cold chain had been interrupted.

The following issues of concern can therefore be identified on behalf of the EU as a whole and on behalf of Belgium as a member state to the EU in particular, due to the importance of its aviculture sector and agricultural exports:

97 According to a study undertaken by the Cameroon NGOs SAILD and ACDIC: “L’importation massive d epoulets congelés au Cameroun: état des lieux, enjeux et alternatives”, avril 2004 98 Study carried out recently by the Pasteur Institute of Yaoundé, to be consulted via [email protected]

Issues of concern



• Failure to respect the right to adequate and safe food by exporting frozen cut pieces of chicken to countries that can reasonably be expected not to be properly equipped and not to be able to implement and monitor sufficiently any legislation on food hygiene linked to frozen food, without providing any support to strengthen equipment or legislation by technical and legal assistance.

• A violation of the obligation to protect the right to food has taken place in that the local production of quality meat is jeopardized and the food insecurity is increased by not promoting the right of countries to protect strategic product sectors with development potential in the framework of WTO negotiations. Additionally, the tariffs or quota that are allowed by the WTO during a transition period, are often diminished by the governments following the pressure by the World Bank and IMF. Moreover, a far-reaching liberalisation of these West-African sector markets is projected in the Cotonou agreements with the EU (signed in 2000) by 2008.

• A violation of the obligation to monitor as stated in paragraph 31 of General Comment No. 12 (” state parties shall develop and maintain mechanisms to monitor progress towards the realization of the right to adequate food for all, to identify the factors and difficulties affecting the degree of implementation of their obligation …”) may be argued, in that no evaluation of this trading practice has been carried out in order to assess the impact of export policies on food sovereignty of Cameroon or any other West-African country.

Failure to respect: fishing protocol in the EU-Chile free trade agreement and other fishery agreements

Over the last decade, the European Union has promoted a policy to reduce fishing quota of EU member states in communitarian waters. Since 2002, discussions have been going on to reduce the fishing catches in the EU by at least 30%, heavily affecting the size of most national fleets, especially the Spanish one. This causes substantial problems for EU-fishers. The main solution offered to resolve the unsustainable over-fishing of commercial fishing grounds and reduce the number of fishing vessels, is therefore the active promotion of fishery treaties to move the overcapacity to fishing waters of Southern countries.

The example of Chile illustrates well what is at stake. The adoption of a trade agreement in October 2004 was preceded by a gradual preparation of the Chilean market by adopting several laws in Chile. First, quotas per vessel were redistributed per fishing company, favouring the bigger ones and reducing the quotas for artisan fishers by half, and providing a reason to reduce the number of vessels and to fire its crews. Actually, this law is being complemented by a new Chilean law proposal in process, assigning the free quota in eternity to the fishing companies, and imposing a system of Individual Transferable Quotas. This quota system inflates the value of the under-sized Chilean companies, who can transfer their quotas to European companies. Additionally, European companies can acquire more than half of the stocks of any Chilean fishing company, as such acquiring the effective control over it. The new law goes side by side with the provisions in the EU-Chile free trade agreement:

• property & control over foreign companies, with a principle of reciprocity (in the actual setting, this is quite impossible due to the capacity of Chilean companies, the actual EU legislation



and limitations on the commercial fishing reserves; e.g. the free trade treaty between Chile and Canada showed that not one Chilean company started operating in Canada)

• fishing vessels can be registered, assigned quota, and operated in the partner region under the same conditions as the national companies

• EU companies can obtain licenses and vessels (with corresponding quota) by transferral, under the same conditions as Chilean companies

• Gradual elimination of import tariffs for Chilean fish products in the EU, for most products over a period of 4 year.

The fishing grounds and fish species that will be accessible under this treaty, are entering into direct competition with the sector of artisan fishers, fishing about 90 species of white fish that are processed locally and providing 90% of fish proteins for the local markets. Most probably, the priority under the new treaty will shift even more to industrial fishing for fish meal, used in salmon aquaculture, which threatens even further the access possibilities of coastal communities to their resources for survival.

Agreements with West-African countries, such as Mauretania, Senegal, Gabon and Ghana give licenses to European vessels within the 200 miles zone. EU fish catches off West Africa, mostly chubb, snappers, mackerel and the highly prized tuna, increased 20-fold from 1950 to 2001 and financial subsidies for vessels working there went from six million dollars in 1981 to more than 350 million dollars (270 million euros) in 2001, according to one study99. Hard data now show the link between fish protein shortages for the coastal communities, and (mainly illegal) bush meat consumption and trade in the coastal regions of West-Africa. Incidences are there from most countries that the EU is also coming into the 12 or 6 miles areas and is severely over fishing the food resources of the coastal population in these countries. According to the EU, the quotas are according to fish reserves established internationally, but this can be hardly controlled locally. Additionally, the EU is not interested in the detailed outcomes at the micro level on the enjoyment of people’s right to adequate food. No regular check exists. No complaint mechanism is available inside the EU where people affected by EU policies could complain.

These EU policies towards opening up fishing grounds, put the future prospects of 60,000 Chilean artisan fishermen and many West-African fishing communities at risk, because European operators are be able to set themselves up as Chilean companies or to enter freely in territorial waters without effective control. Belgium is failing in its obligations to promote an open and transparent negotiation on fishery agreements, including an assessment and monitoring of the effects of privatisation and licensing of southern countries resources on the right to food of their populations.

Failure to protect: World Bank mining policy recommendations and financing of extractive industries projects.

• Mining policy advise

Over the last years, the policy recommendations of the World Bank to development countries have focused on mining regulations. As a result of World

99 Brashares, J. “EU fishing subsidies drive west Africa's bushmeat trade”; Science, 12/11/2004, via http://news.bbc.co.uk/1/hi/sci/tech/4003859.stm.



Bank policy advice, taking place under conditionality pressure, standards for resettlement and compensation of affected villages or communities, as well as for the control and regulation of private companies were, in many cases, reduced, softened, or omitted. As a result, World Bank mining policy contributes to human rights violations of people affected by mining. World Bank advisors have clearly formulated recommendations in this sense, as with the reform of Ghana’s mining law in 2001. Competition between countries such as Tanzania, Ghana, Guinea and other African countries has been encouraged in order to lower standards and attract more foreign investments (i.e. decreasing corporate tax, exploration conditions, company sanctions…), thereby violating human rights and marginalizing the development benefits (tax, employment…) for the countries. Even if project exploration and revenues from the mining sector boom in Africa since the nineties, the Extractive Industries Review (available since January 2004 and organized by the World Bank itself) recognizes that extractive industries generally do not alleviate poverty of local populations.

• Mining projects planning and evaluation

At the same time, the World Bank funds extractive industries projects in a variety of ways in many countries. It issues loans and term insurance through its finance subsidiaries. This often occurs in collaboration with other bilateral development financial institutions and banking groups, often based in EU member states. The human rights consequences of these projects lay mainly in resettlement problems and the destruction of livelihood, by not providing sufficient compensation for victims and recurrence to forced eviction in many cases.

The Extractive Industries Review demands in this respect a change of policy from the World Bank, i.e. to remain active in mining only if the right conditions are in place for poverty reduction and sustainable development: governance structures for the benefit of the poor, effective environmental and social standards and respect of human rights.

One example of the World Bank’s poor record in regulating and evaluating its mining projects, are the human rights violations victimising the people of Parej East in the coal mining areas of Jharkhand, India. Since the mid 1990s, the World Bank has been funding this coal mining project which is implemented by Central Coalfields Limited. This project was carried out despite warnings and recommendations by local and international NGOs. The inhabitants of the mining area were involuntarily resettled. Not only did they lose their homes but also their sources of livelihoods, formerly guaranteed by usufruct rights to the forest land.

In November 2002, the World Bank’s Inspection Panel released a detailed report on the occasion of a complaint filed by the project affected people: it observed that adequate compensation was lacking, including the necessary natural resources for food production.

The World Bank and Central Coalfields Limited have rejected to accept the responsibility to properly implement the Inspection Panel’s recommendation, leaving the affected people without actual means to claim their right to food and water, due to land rights of traditional communities without land titles not taken into account, too small house plots for resettlement and without titles, and unusable water sources, among other issues.

Although the evaluation of this and other mining projects have been repeatedly on the agenda of the World Bank’s board meetings to deal with complaints regarding compensation and rehabilitation levels from the victims’ side, individual state members, among which Belgium, have clearly failed in positively influencing the World Bank’s poor records in respecting the human rights of the affected people, and in granting them full compensation. Likewise, no member state has



acknowledged the role of the World Bank mining policy advice in weakening government’s possibilities to protect the human rights of its citizens and to enjoy development benefits. However, Belgium is duty bound under the ICESCR to protect the victims’ access to food producing resources in the context of each WB project.

Questions:


• whether Belgium, during the ongoing bilateral and multilateral trade negotiations, would be willing to defend the right of countries to protect their agricultural markets with import tariff adjustments and quotas, when dealing with imports of strategic products concerning rural development and the right to food and an adequate living standard.

• whether Belgium is willing to defend within the World Bank Board of Members, the development of guidelines concerning human rights, ecological and social standards in mining policy advisory processes, including an impact assessment concerning these issues.

• whether Belgium is willing to defend within the World Bank Board of Members, the need for effective participation processes of affected communities and civil society in policy advise concerning mining laws and mining projects, including details of how doubts that are raised in these processes are taken into consideration.

• whether Belgium is willing to defend within the World Bank Board of Members, the need to examine socio-economic, ecological and cultural changes when dealing with resettlement problems of affected populations, including local government control systems, sanction mechanisms and an effective complaint procedure to regionalized contact points, in order to ensure that their right to food is not violated and their continued access to land or alternative income is guaranteed.

• whether Belgium is willing to assess and monitor the effects of bilateral EU fishery policies on the right to food of local populations and sustainability, and to apply the precautionary principle in case of possible negative effects.

Recommendations:

The Committee might recommend that:

• During the ongoing bilateral and multilateral trade negotiations, Belgium defend the right of countries to protect their agricultural markets with import tariff adjustments and quotas, when dealing with imports of strategic products concerning rural development and the right to food and the right to an adequate living standard.

• In the frame of multilateral WTO agreements or Economic Partnership Agreements between the EU and African




countries, Belgium request to officially monitor the effect of export practices to those countries on human rights issues of peasant income and consumer health, and formulate recommendations to increase those countries’ border and chain control capacities, so to find products improper for human consumption and to identify illegal import in disrespect of existing quotas and tariffs in those countries.

• Belgium defend within the World Bank Board of Members, the development of guidelines concerning human rights, ecological and social standards in mining policy advisory processes, including an impact assessment concerning these issues.

• Belgium defend within the World Bank Board of Members, the need for effective participation processes of affected communities and civil society in policy advise concerning mining laws and mining projects, including details of how doubts that are raised in these processes are taken into consideration.

• Belgium defend within the World Bank Board of Members, the need to examine socio-economic, ecological and cultural changes when dealing with resettlement problems of project affected populations, including local government control systems, sanction mechanisms and an effective complaint procedure to regionalized contact points, in order to ensure that their right to food is not violated and their continued access to land is guaranteed.

• Belgium should promote the assessment and monitoring of the effects of bilateral EU fishery policies on the right to food of local populations and sustainability, and to apply the precautionary principle in case of possible negative effects.



International Financial Institutions and the Right to Water in Third Countries 100

Relative to its size, Belgium is an influential member of the International Financial Institutions (specifically the International Monetary Fund and the World Bank, “the IFIs”). Proof of Belgium’s influence is its important role in the International Monetary Fund (“the IMF”) where it holds a large percentage of the votes, namely 5.14% of the total. For the past quarter of the century, the IFIs have championed structural adjustment programmes as a response to addressing the debt burden of developing countries and have stressed the importance of economic growth. The impact of structural adjustment programmes on economic, social and cultural programmes in developing countries has been significant.

Numerous United Nations resolutions have attested to the incompatibility of structural adjustment policies with the debt burden of developing countries and respect for international law. The UN Commission on Human Rights (“the Commission”) has adopted multiple resolutions relating to developing world debt and structural adjustment. A 2000 Resolution adopted by the Commission affirmed “that the exercise of the basic rights of the people of debtor countries to food, housing, clothing, employment, education, health services and a healthy environment cannot be subordinated to the implementation of structural adjustment polices and economic reforms arising from the debt;”101

The UN Secretary General had earlier written, “the United Nations Special Rapporteur on Structural Adjustment has provided evidence of how the structural adjustment programmes recommended by international financial institutions have a negative influence (both direct and indirect) on the realisation of economic, social and cultural rights and are incompatible with the realisation of these rights.”102 More recently, the report of the Independent Expert Fantu Cheru,103 to the Commission stated, “In the majority of countries assessed, macroeconomic objectives were generally incompatible with the fight against poverty.”104

Article 2.1 of the International Covenant on Economic, Social and Cultural Rights states, “Each State party to the present Covenant undertakes to take steps individually and through international assistance and cooperation especially

100 CNCD-11.11.11, (Belgian coalition of French and German speaking NGOs and social movements). Quai du Commerce 9, 1000 Brussels – Contact: Arnaud Zacharie, phone: +32 2 250 12 69, e-mail: [email protected]. 101 Commission on Human Rights Resolution 2000/82 on the ‘Effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights’ referred to reports by Independent Experts, Special Working Groups and the UN Secretary General. 102 UN, Secretary General, 1995, p.66 in Chris Jochnick, 2000, p.136. 103 Independent Expert on the effects of structural adjustment policies and foreign debt on the full enjoyment of all human rights, particularly economic, social and cultural rights. 104 Fantu, Cheru “Economic, Social and Cultural Rights, The Highly Indebted Poor Countries (HIPC) Initiative: a human rights assessment of the Poverty Reduction Strategy Papers (PRSP)” Economic and Social Council, Commission on Human Rights 57th Session (E/CN.4/2001/56).

Justification

Legal Frame-work and Obligations Related to international institutions



economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”105

In response to Belgium’s last report on the implementation of the Covenant, the Committee made the following recommendation, “The Committee encourages the Government of Belgium, as a member of international organizations, in particular the International Monetary Fund and the World Bank, to do all it can to ensure that the policies and decisions of those organizations are in conformity with the obligations of States parties to the Covenant, in particular the obligations contained in article 2.1 concerning international assistance and cooperation.” (E/C.12/1/Add.54, para. 31).

The UN Committee for Economic and Social Rights has interpreted the right to water, which is an issue in the presented case of concern, in its General Comment 15.

Structural adjustment, poverty reduction and debt policies

The impact of structural adjustment policies followed by the IFIs has acted as a brake on the realisation of economic and social rights. In the social sphere, austerity budgets have augmented poverty: budget cuts in priority social sectors have resulted in massive layoffs in the public sector and the dismantling of essential services in the spheres of education and health. The result is a sharp decline in the number of practising doctors and teachers as debt repayment far exceeds social spending.

In the economic realm, if inflation has been conquered and exports increase the connection of developing countries to the global market has generally had the reverse impact of that pursued under structural adjustment: a decline in the terms of exchange, a shortage of private capital, an increase in debt and the “deindustrialisation” of the economy. If we add the impact of an increase in the value added tax (VAT) required under fiscal reform programmes (a VAT of 18% is applied in most countries) we see a situation that is untenable for the general population; faced with unfair competition and deprived of formal revenues, they are deprived of essential social services and forced to pay exorbitant prices.

The UN’s Least Developed Countries Report, 2002 states, “In general, the implementation of adjustment policies has not been followed by a steady downward trend in the incidence of poverty. For the Least Developed Countries (LDCs) undertaking Enhanced Structural Adjustment Facility (ESAF) structural adjustment programmes, the proportion of the total population living on less than $1 a day rose from 51 per cent in the three years before the adoption of a programme to 52 per cent in the first three years after and 53 per cent in the next three years. Given rising total population, this means that the people living in extreme poverty increased under these programmes”.106

105 Article 2.1 of the International Covenant on Economic, Social and Cultural Rights, adopted 16 Dec. 1966, G.A. Res. 2200, U.N. GAOR, 21st Sess., Supp. No. 16, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3 (entered into force 3 Jan. 1976) [hereinafter ICESCR]. 106 UNCTAD, “The Least Developed Countries Report, Overview by the Secretary General of UNCTAD, page 24, United Nations, 2002”.

Issues of Concern



In September 1999, these programmes were relaunched as poverty reduction strategy papers (PRSPs), but in terms of macroeconomics there was no change and the structural adjustment framework continued to apply. The United Nations Conference on Trade and Development (UNCTAD) found, “More than one billion people, 400 million of whom live in the least developed countries, live in countries whose government have prepared a poverty reduction strategy paper (PRSP), which is a condition for gaining access to aid at favourable conditions and to debt relief, and which is an open and honest process overseen by a World Bank official. (…) The earliest PRSPs that were prepared when the process was first introduced favour adjustment. (…) The more recent PRSPs make an effort to emphasise pro-poor economic growth, which structural adjustment policies have generally failed to achieve as well as failing to deliver sustainable economic growth that is sufficiently strong to significantly reduce poverty. As a result, there is a risk that the PRSP approach will also leave countries in a worse position.”107

The impact of structural adjustment policies followed by the IFIs has acted as a brake on the realisation of economic and social rights. In the social sphere, austerity budgets have augmented poverty: budget cuts in priority social sectors have resulted in massive layoffs in the public sector and the dismantling of essential services in the spheres of education and health. The result is a sharp decline in the number of practising doctors and teachers as debt repayment far exceeds social spending.

In the economic realm, if inflation has been conquered and exports increase the connection of developing countries to the global market has generally had the reverse impact of that pursued under structural adjustment: a decline in the terms of exchange, a shortage of private capital, an increase in debt and the “deindustrialisation” of the economy. If we add in the impact of an increase in the value added tax (VAT) required under fiscal reform programmes (a VAT of 18% is applied in most countries) we see a situation that is untenable for the general population; faced with unfair competition and deprived of formal revenues, they are deprived of essential social services and forced to pay exorbitant prices.

The UN’s Least Developed Countries Report, 2002 states, “In general, the implementation of adjustment policies has not been followed by a steady downward trend in the incidence of poverty. For the Least Developed Countries (LDCs) undertaking Enhanced Structural Adjustment Facility (ESAF) structural adjustment programmes, the proportion of the total population living on less than $1 a day rose from 51 per cent in the three years before the adoption of a programme to 52 per cent in the first three years after and 53 per cent in the next three years. Given rising total population, this means that the people living in extreme poverty increased under these programmes”.108

In September 1999, these programmes were relaunched as poverty reduction strategy papers (PRSPs), but in terms of macroeconomics there was no change and the structural adjustment framework continued to apply. The United Nations Conference on Trade and Development (UNCTAD) found, “More than one billion people, 400 million of whom live in the least developed countries, live in countries whose government have prepared a poverty reduction strategy paper (PRSP), which is a condition for gaining access to aid at favourable conditions and to debt relief, and which is an open and honest process overseen by a World Bank official.

107 UNCTAD, “The Least Developed Countries Report” 108 UNCTAD, “The Least Developed Countries Report, Overview by the Secretary General of UNCTAD, page 24, United Nations, 2002”



(…) The earliest PRSPs that were prepared when the process was first introduced favour adjustment. (…) The more recent PRSPs make an effort to emphasise pro-poor economic growth, which structural adjustment policies have generally failed to achieve as well as failing to deliver sustainable economic growth that is sufficiently strong to significantly reduce poverty. As a result, there is a risk that the PRSP approach will also leave countries in a worse position.”109

Whereas, theoretically they are part of the UN, the IFIs have never felt obliged to comply with UN decisions or treaties.110 Nevertheless it is clear that these institutions are legally bound by the UN and its treaties. 111

Despite these facts the Belgian Government has not raised questions about the compatibility of structural adjustment policy with realizing economic, social and cultural rights at IFI meetings. On the contrary, at the 10th meeting of the IMF’s International Monetary and Financial Committee in October 2004 the Belgian Finance Minister Didier Reynders stated, “The Fund has an important role to play in helping weaker countries achieve macroeconomic stability and in helping them put in place structural reforms necessary for growth and the reduction of poverty.”112

Example : Aguas del Illimani-Suez

Examples of the incompatibility of structural adjustment policies and the realisation of economic, social and cultural rights are numerous. A recent example can be found in Bolivia where, acting on the advice of the World Bank and IMF, the government decided to privatise the Municipal Water and Sewage Authority (SAMPA) and granted the company Aguas del Illimani-Suez a thirty year concession for the distribution of potable water and sewage treatment in the municipality of El Alto in the capital of La Paz. The World Bank, through the International Finance Corporation owns 8% of the shares in Aguas del Illimani-Suez and thus has a direct interest in the privatised company. At the beginning of the contract in 1997 the rates increased by 19% and the cost of connections increased by 33%. In addition, although Bolivian law forbids the dollarisation of rates (Law 2066 of 11 April 2000, art. 8) Aguas del Illimani-Suez rates are dollarised, but this predates the non-dollarisation law. The rates for connections to drinking water and sewage facilities is now as high as US$445 which is approximately 8 times the minimum monthly wage. Thus more than 70,000 people in El Alto find themselves living in a home that is not connected. One result of this policy was the mass demonstration of 8 March 2005 demanding the re-nationalisation of water services.

109 UNCTAD, “The Least Developed Countries Report”

110 One is example is the case of South Africa. In 1974 the UN General Assembly demanded that the apartheid regime should be excluded from all internatinal organizations. The Secretary General requested that the IMF and the World Bank comply with this request. The World Bank responded that it was not affected by UN decisions and the IMF did not bother to respond. 111 See A. Pellet et al., Droit international public, LGDJ, 1995, 5e édition, p. 555. 112 International Monetary and Financial Committee, Statement by Mr. Reynders, Tenth Meeting, October 2, 2004.



The Committee might ask if Belgium is ready to :

• take the initiative to cancel from its budget 2006 onwards the debt reimbursements to be paid by the poor countries of the South and stimulate the international financial institutions to do the same

• take initiative to submit the international financial instituations to the obligations arising from international law, particularly those treaties and agreements that have been ratified by Belgium and the majority of the Member states




The Right to Social Security and Work in Third Coun tries 113

Work, fair working conditions and social protection of people are fundamental human rights and should be essential elements in development and poverty reduction policies. A good social policy is highly recommended by the UN, the ILO, and the World Commission on the Social Dimension of Globalisation. According to the ILO, 500 million new jobs are necessary in order to absorb the new entrants on the labour markets in the coming ten years. Today, half of the working population earns less than 2 $ a day, the World Bank poverty line. In developing countries, about 40 % of all workers remain in the informal sector and thus lack basic social rights. Despite the World Bank’s poverty reduction policies, poverty is still on the rise in many countries.

Globalisation has detrimental social consequences if it does not go hand in hand with social governance by multilateral organisations. The World Commission on the Social Dimension of Globalisation submits that today’s global imbalances are “morally unacceptable and politically unsustainable”114 . The Belgian government, however, has refrained from integrating a work and social rights approach in its bilateral and multilateral development policies.

The International Covenant on Economic, Social and Cultural Rights, as well as a whole set of conventions guarantee important rights to work, association and social protection. Article 6 (the right to work), article 7 (the right to good and just working conditions), article 8 (the right to form and join a trade union; the right to strike) and article 9 (the right to social security, including social insurance) are highlighted here.

Under article 2 (1) and article 22 of the Covenant, all States have the obligations to respect, protect and fulfil articles 6 to 9 through their international cooperation.115 Consequently, Belgium and its agencies have to take steps to realise the fundamental rights of the ICESCR in its international cooperation and assistance. More specifically, for the realisation of articles 6 to 9 ICESCR, legislative and institutional measures are to be taken and encouraged by international policies towards less developed countries.

These international obligations have been confirmed in a whole range of international commitments:

• The UN Declaration on Social Progress and Development116 discusses “equitable distribution of the national income among all members of society”.

• The Declaration on the right to development117 deals with the indivisibility of human rights and the obligation for all

113 Attac Belgium, Lousbergskaai 10, 9000 Ghent – Contact: Francine Mestrum, phone: + 32 9 225 21 42, e-mail: [email protected] or Mathieu Destrooper (Independent human rights researcher), phone: + 32 478 40 99 65, e-mail: [email protected] 114 Final report of the World Commission on the Social Dimension of Globalization, 24 February 2004. 115 CESCR General Comment No. 3, The nature of State Parties Obligations, 14 December 1990. 116 UN General Assembly Resolution 2542(XXIV), 11 December 1969.

Justification

Legal Frame-work and Obligations Related to the Right to Work



States to create “equal opportunity for all in their access to (…) employment and fair distribution of income” (article 8) and concludes that extreme poverty impedes good development.

• The Vienna Declaration and Programme of Action submit that poverty and social exclusion are a violation of human dignity118 and are impeding the implementation of human rights119.

• In the Declaration of Copenhagen and the action programme adopted at the World Summit on Social Development,120 UN member states agreed to respect 10 commitments: economic and social protection in case of unemployment, sickness, motherhood and old age (commitment 2); the objective of full employment, with respect to the rights of labourers (commitment 3); the objective of social integration, with respect of all human rights (commitment 4); the objective of social development with poverty reduction and full employment (commitment 8). Besides, the action programme refers to the importance of social security (article 38), fair wages (article 42) and the importance of the international ILO-conventions (articles 47, 54, 55).

• Different ILO conventions mention the ‘Core Labour Standards’ agreed upon in 1998. These conventions have been ratified by Belgium and promise improvements in the field of child labour, forced labour, the right to association and negotiation and the fight against discrimination.

• In the UN Millennium Declaration121 all member States promise to protect fundamental rights and freedoms by all effort.

The commitments outlined in these international Declarations make very clear that the international development cooperation policies of Belgium have to create a framework in which less developed countries can realize the social rights in articles 6 to 9 of the covenant. The last Belgian State Report to the Committee did not reveal any involvement in this area.

117 UN General Assembly Resolution 41/128, 4 December 1986. 118 Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/24 (Part I), para. I.25. 119 Vienna Declaration and Programme of Action, World Conference on Human Rights, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/24 (Part I) para. I.14. 120 Declaration of Copenhagen, World Summit on Social Development, 6 to 12 March 1995, A/CONF/166/9. 121 UN General Assembly 55/2, 8 September 2000.



Failure to promote the right to work and the right to social protection in the Belgian development policies – incoherence with other policies

The Law on Development Cooperation of 25 May 1999, refers to the important role of Belgium in encouraging respect for all human rights. In this law, no specific reference is made however to economic, social and cultural rights. As a consequence, human rights principles are not reflected in Belgian policies. Neither the policy plan122 nor the activity reports of the Directorate General for Development Cooperation (DGDC) deal with human rights.123

Belgium insufficiently promotes social rights through international assistance124. We welcome the fact that Belgium finances the STEP programme (Strategies and Tools against social Exclusion and Poverty) of the ILO, but deplore it fails to promote work and social rights in its other development cooperation policies.

The only existing Belgian policy strategy on social development reduces the initial concept, based on UN and ILO conventions, to the rather flawed concepts of ‘microfinance’ and ‘industrial life’ (without social aspects).125 No single document elaborates an employment strategy, a social protection strategy, a loan policy, or any social security idea. Any focus on equal (re)distribution of income is absent. For example, in the 1999 basic law on development cooperation ‘social economy’ was introduced as a ‘transversal theme’, but in practice, few implementations of social economy can be found.

Concerning cooperations, social insurances, work, labour rights and working conditions, Belgium has no international policy.

It is not coherent to encourage economic policies like liberalisation of the markets or good conditions for Belgian investments in export zones, without taking into account social protection and just working conditions for the local workers. Poverty reduction and development must necessarily be looked at in the context of an ‘overall strategy’, and not as a project investment. To give just one example: the recent liberalisation of the textile market implies the loss of hundreds of thousands of jobs. If people have no social protection, they inevitably join the ranks of the poor. This implies that, when promoting liberalisation or poverty reduction policies, work and social protection should be central.

Failure to promote a rights-based poverty approach internationally

A major part of the Belgian development budget is spent on multilateral development, and Belgium is a member of the major multilateral organisations. Belgium therefore takes part in the decision making process of these international institutions and supports the implementation of their policies. In this way, Belgium is co-responsible for multilateral politics.

122 Policy plan DGDC, http://www.dgcd.be/nl/de_minister /beleidsplan/hoofdstuk 3 (consulted on 29/01/05) 123 Activity Report DGDC 2003, http://www.dgcd.be/nl/dgos/activiteitenverslag/index.html (consulted on 29/01/05) 124 The only attempts in the field of social economy are support to the ILO Prodiaf programme (Promotion du Dialogue social en Afrique) and the foundation of a ‘Platform on Micro Insurance and Mutualities’ with the help of the Belgian Technical Cooperation, the ‘Belgische Raiffeisenstichting’ and some Belgian NGOs. These projects are rather small though. 125 See the policy plans of the State-Secretary of Development Boutmans (1999-2003) and of the ‘Minister of Development’ Verwilghen.

Issues of Concern



The Belgian 1999 law on development co-operation, as well as the policy reports and the activity reports126 show that Belgian development co-operation focuses on poverty reduction. All reports confirm that the Belgian government aligns its policies with the UN Millennium Development Goals (MDGs) and the World Bank policies (PRSPs – Poverty Reduction Strategy Papers).

The MDGs might be a first step towards a social-economic base for a global economy, but are insufficient because they do not mention work nor social rights. The development and implementation of strategies for decent and productive work for the youth, measured by the unemployment rate of young people aged 15-24 years, is the only indicator related to work that is included in the target to relieve the debt burden of developing countries. In the first progress report of Belgian Development Cooperation on the MDGs, it is mentioned that Belgium supports the ILO programs against child work, technical education programs and micro-finance for young people. While this is welcomed, it is considered to be only a first step towards more systematic and comprehensive attention for right, working conditions and social security rights.

The World Bank approach’s has a purely economic and not a social ratio. An analysis of the Poverty Reduction Strategy Papers (PRSPs) - which the less developed countries are required to prepare for the IMF and the World Bank - shows that these PRSPs do not deal with economic and social rights. Responsibility for poverty reduction is primarily attributed to the poor themselves, whereas States are to create an enabling environment. Countries are encouraged to shrink their social security systems and to deregulate their labour markets.

Migration as a work related issue to be developed in Belgian international policies

From the global economy perspective, there is a flagrant unbalance between trade rules and labour rules. As foreign investments rights are being increasingly strengthened by global rules, labour rights and specifically migrant worker’s rights are not given enough attention. According to the conclusions of the World Commission of the Social Dimension of Globalisation, established by the ILO, the international structure of the global economy lacks a multilateral framework regulating the international movement of people. This lack has provoked harmful effects like migration of qualified workers (brain drain), irregular migration, human trafficking and all kind of abuses, hitting specifically women.

These problems linked to international migration cannot be tackled in isolation or unilaterally. There is an urgent need to achieve an international consensus in order to enlarge the multilateral engagements concerning protection of human rights of migrant workers and their families, human trafficking, discrimination and exploitation.

Secondly, dialogue between the countries of origin and reception, especially concerning implementation of policies arising from ratified conventions and agreements, needs to be reinforced.

Thirdly, a process to build a general institutional framework for international migration, characterised by its transparency, homogeneity and standard based, should be started. This should lead to a multilateral framework to deal with international movement of people that includes immigration legislation and Consulate practices.

126 Cf. above.



Regardless of the specific roles of the international financial institutions, the States parties to the Covenant should be held responsible for their actions within IMF and the World Bank, and for influencing policies in relation to the right to work. WTO has an inherent responsibility for work conditions in relation to trade, and the issue of accountability in relation to decent work will inevitably arise in future.

In line with the right to work as established by the ICESCR and with the ILO core conventions, Belgium should apply a strong proactive policy aimed at guaranteeing that Belgian companies operating abroad fully respect the international instruments

Case: Belgian company operating in Sri Lanka not re specting

workers’ rights

All workers in Sri Lanka are by law and the Board Of Investment act (BOI) permitted to join a Trade Union and recognize the presence of a Trade Union in their workplace. Nevertheless, the national Trade Union National Worker’s Congress (NWC) has repeatedly reported to the Labour Tribunal cases of violation of the right of freedom of association and other worker’s rights at The United Tobacco Processing Ltd., owned by Belgium Nationals and operated under the BOI act of Sri Lanka since 1987. They manufacture cigars for export to Belgium and other European countries. The NWC commenced organising the workers in this factory in 1998. In 1999, with a membership of 118, they registered a branch union at the factory under the Trade Union Ordinance in the name of “UTP Ltd. Workers Trade Union. Since this union was created, a series of illicit acts from the management against the unionised workers have been filed to the Labour Tribunal, concerning violations of basic rights at work.

Intimidation, exploitation and unfair dismissal: Two technician union members were dismissed for refusing to do some extra tasks after their shift and which were not part of their normal duty of technicians. The Union thereafter filed a case at the Labour Tribunal, Negombo. The case dragged on for 4 years and one of the workers was eventually reinstated with 2 years back wages127. Another union member was dismissed for not wearing shoes. The reason for his not wearing shoes was because he had a wound on his leg. The Union filed a case in the Labour Tribunal and he was completely discharged with compensation.

Lack of freedom of association and harassment: in 2000, the Union requested the company to recognise the trade union as it had more than 80% of the work force as trade union members. But the management did not follow-up this request rather, they kept on harassing and intimidating the union leaders (some workers were demoted from quality controllers to machine operators, others were unfairly dismissed). The secretary of the union initiated actions to defend workers from harassment and he was eventually dismissed. The case was filed to the Labour Tribunal and is still pending.

All these incidents progressively made the members disappointed and afraid of loosing their jobs and the union drop to 40% of the workers in the company.

The management still holds workers meetings and specifically states not to join any trade unions, not to waste their money by paying membership dues, as the management would not deal with any trade union except the workers council.

127 Amounting to nearly 1100€.



Questions

As Belgium does not pay attention to economic and social rights in its development cooperation policies, the Committee might consider to ask Belgium:

• in which way its development co-operation policies contribute to the realization of ESC rights in countries in the third world;

• whether it has a clear policy on the realization of ESC rights in the third world;

Recommendations

The Committee might recommend to Belgium:

• to reconsider its development cooperation legislation in order to incorporate fully economic, social and cultural right, and in particular the rights mentioned in articles 6 to 9 of ICESCR;

• to complement its PRSP and MDG policies with social and economic rights, especially those mentioned in articles 6 to 9 of ICESCR, and to urge the international organisations in which it participates, to act likewise, so that their member states can be in conformity with the obligations of article 2 (1) of the ICESCR.

• to ensure coherence of its development policies, especially in the field of articles 6 to 9 of ICESCR.

• to contribute actively to the realisation of the recommendations of the World Commission on the Social Dimension of Globalisation, established by the ILO

• to sign and ratify the 1990 UN Convention on migrant workers and members of their families.

• to sign and ratify the ILO Convention No. 143 on migrant workers and members of their families.




State Support for Companies: officially supported e xport credits 128

Belgian multinational enterprises sometimes find themselves in a situation of conflict with human rights of local communities, or in a situation where legislation, governmental practice or other constraints make it difficult to ensure the protection of human rights. When e.g. the Houay Ho dam reservoir was constructed in Laos, in which the Belgian company Tractebel holds a control stake, no proper resettlement of the affected local community took place. They were deprived of food, cattle, health care, potable drinking water … (see box below).

Ducroire-Delcredere and FINEXPO are two Belgian public agencies that provide government-backed export credits (guarantees, insurances, rate support) to Belgian enterprises that seek to do business overseas in developing countries and emerging markets (ECAs). But Export Credit Agencies-backed projects often spoil the environment and disrupt the lives of communities.

Under the ICESCR, Belgium has an obligation to prevent Belgian companies from violating ESC rights abroad, and with due regard to its obligation to fulfil, to take positive measures (legal and others) towards Belgian companies in order to facilitate the realisation of ESC rights abroad. These obligations relate inter alia to the right to adequate housing, the prohibition of child labour, and the prohibition of forced evictions.

The guidelines on relocation and/or resettlement of international institutions (World Bank Group and regional banks, OECD, ERDB and EIB etc.) too are to be fully respected insofar as they reflect the obligations contained in the ICESCR, on the part of both the agencies themselves and States parties to the Covenant (see General Comment No. 7, The right to adequate housing: forced evictions, 1997, para. 18).

Officially supported credits

The applicable regulatory, normative framework is insufficient. Until 2004, the Belgian ECAs applied no environmental and social standards. Since September 2004, they have applied the OECD Common Approaches on environment and officially supported export credits. This includes screening on a number of elements e.g. potential effect on indigenous communities; forced evictions; respect for laws of the host country and relevant norms and guidelines of World Bank Group, IFC, regional banks and ERDB. But the OECD Common Approaches do not refer to ESC rights, and are only applicable to export credits with a repayment term of more than 2 years, or with their share above $ 10 million (except for projects in sensitive areas: Annex I of the Common Approaches).

There is no expertise for following up on ECA backed projects, and sofar Ducroire has not turned down any application for its detrimental social impact (quote from a member of the board of directors).

128 Proyecto Gato, De Pretstraat 82, 2060 Antwerp – Contact: Jan Cappelle, phone: +32 3 470 20 56, e- mail: [email protected].

Justification

Legal Frame-work and Obligations Related to Activities of Companies Abroad

Issues of Concern



Example of a project backed by Ducroire

Houay Ho is a 150 MW trans-basin diversion scheme and diverts water from the Houay Ho stream on the eastern edge of Champassak province of southern Lao PDR and is released into the Xe Kong River. Houay Ho was built and funded by the Korean company Daewoo Engineering & Construction; Loxley (Thailand) and the state-owned company Electricité du Laos. Construction began in November 1994 and was completed at the end of 1998. All the output is sold to the Electricity Generating Authority of Thailand. The Belgian company Tractebel and its Thai partner MCL acquired in 2001 an 80% controlling stake in the 150MW Houay Ho dam-reservoir hydroelectric project. Ducroire awared a 46,4 million dollar political risk insurance.

Around 3000 people were forcibly evicted to make way for the Houay Ho dam. 700 people (500 households) have been resettled after 2001. A study, which has been financed by the Asian Development Bank, describes the serious impact on the ethnic community Nya Heun. The community consists of 1200 families in 30 villages. A Houay man told the researchers: “We were told that if we moved to the resettlement site, we would be given enough land to grow crops and also receive rice for three years. But we have not received that rice and the land is not enough so we have to leave to find work or look for food elsewhere. It seems like we will not be able to survive here.”

The resettled people do not have enough land to cultivate, and no land to move their cattle. Animals get sick and die. In Laos, cattle are people’s pension. Houses are inadequate, having been built without kitchen and bathroom. The local hospital lacks medicine, trained staff, and even electricity. Dangerous illnesses such as malaria, diarrhea and infected flesh and bowels with worms are on the increase. Two of the three water reservoirs are not suited for use. People are forced to drink water out of the nearest river. The river is dry in summer.

Ducroire-Delcredere recognizes the problems but argues that it did not apply any environmental and social standards during the screening process. NGOs have filed a complaint to the National Contact Point.

With regard to activities of Belgian companies

The applicable normative framework is deficient. The OECD Guidelines for Multinational Enterprises require that human rights be respected in accordance with international obligations of the host country (Chapter II, para. 2). However, this recommendation is irrelevant in relation to projects in countries that have not ratified the ICESCR or when the host country has ratified the ICESCR but not integrated it in its domestic legal order. Additionally, the Guidelines are only voluntary, non-binding guidelines.

The monitoring is deficient. Priority of contractual obligations over international human rights law is upheld. The Belgian National Contact Point, as a forum for discussion of all matters relating to the Guidelines, does not really function as a “complaints mechanism”. It lacks visibility, accessibility, transparent procedures and accountability.

Questions


• why Ducroire has not screened the Houay Ho dam project (Laos) on any social (resettlement, freedom of association, safety…) and environment-related (health) impact?




• what has been done to make the National Contact Point a good functioning complaints mechanism?

• what has been done to integrate ESC rights in the OECD Guidelines for Multinational Enterprises and the OECD Common Approaches?

Recommendations


• that the National Contact Point be reformed in order to act as a forum for discussion of all matters related to the Guidelines, and to participate in appropriate review and consultation procedures (OECD Working Group ‘Investment Committee’) to integrate ESC rights in the Guidelines. In this regard, the Committee could welcome draft bill 3-649/1 on the organisation of the National Contact Point with regard to international ethical corporate activity, and recommend its early adoption.

• that ESC rights as guaranteed in the ICESCR be fully respected, protected and fulfilled. This means that they are to be integrated in the OECD Guidelines and OECD Common Approaches, and in Belgian legislation. The Committee could welcome the draft bill K.51/648 on conditioning state support for foreign investment by norms of socially responsible and sustainable corporate activity, and recommend its early adoption.

• to reform the ECAs Delcredere-Ducroire and FINEXPO so that can only be supportive of activities of Belgian enterprises abroad that respect ESC rights. They should also be encouraged to participate in appropriate review and consultation procedures (OECD Working Group on export credits) to subject the OECD Common Approaches to ESC rights.



Rights of Indigenous Peoples 129

Belgium is through its development cooperation and the provision of export credit guarantees directly and indirectly supporting governments which are violating Article 1 (2) of the ICESCR.

Article 2 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads: “Each State Party to the present Covenant undertakes to take steps, individually and through international co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.”

Article 1 (2) of the ICESCR reads: “All peoples may for their own ends, freely dispose of their natural resources without prejudice to and obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence.”

Belgium has also ratified ILO Convention 107 (1957) which reads in art. 11: “The right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized.” ILO Convention 107 reads in its art. 13 (2): “Arrangements shall be made to prevent persons who are not members of the populations concerned from taking advantage of these customs or of lack of understanding of the laws on the part of the members of these populations to secure the ownership or use of the lands belonging to such members.”

ILO Convention 169 reads in art. 2: “(1) Governments shall have the responsibility for developing, with the participation of the peoples concerned, co-ordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. (2) Such action shall include measures for: … (b) promoting the full realisation of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions. …”

Art. 14 (1) of the same Convention reads: “The right of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognized. … Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.” Convention 169 further reads in art. 15: “(1) The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. (2) In cases in which the State retains ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced,

129 KWIA, Kortrijksepoortstraat 192, 9000 Ghent – Contact: Johan Bosman, phone: +32 9 330 84 30, Fax: + 32 9 330 84 30, e-mail: [email protected].

Justification

Legal Frame-work and Obligations Related to the Use of Land and Natural Resources by Indigenous Peoples



before undertaking or permitting any programmes for the exploitation of such resources pertaining to their lands. ….”

Many articles of the ICESCR are focusing very much on traditional needs with regard to economic, social and cultural rights, as they have been evolved in sedentary, urbanised and even industrialised societies, which may not be pertinent or adequate for indigenous peoples. A comparative lecture of the corresponding articles in the ICESCR and the ILO Conventions 107 and 169 learns that the provisions in the ILO Conventions 107 and 169 may more appropriately clarify the spirit of the corresponding articles of the ICESCR with regard to the rights of indigenous persons, communities and peoples.

In light of the universality of human rights and the collective responsibility of all States to respect and promote these rights, Belgium should promote the rights stipulated in the ICESCR, in the case of indigenous peoples through the promotion of the parallel provisions in the ILO Conventions 107 and 169.

Belgium has not yet ratified ILO Convention 169. ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries, which partially revised ILO Convention 107, reads in its preamble that “the developments which have taken place in international law since 1957, as well as developments in the situation of indigenous and tribal peoples in all parts of the world, have made it appropriate to adopt new international standards on the subject with a view to removing the assimilationist orientation of the earlier standards”.

Because of this basic shift away from an assimilationist orientation, Belgium should ratify ILO Convention 169 in order to give a clear signal, both to other States and to indigenous peoples, of the real importance which Belgium attaches to the rights of indigenous peoples, including their economic, social and cultural rights.

Camisea-case

Through its development co-operation, Belgium is supporting states, which do not respect art. 1 (2) of the ICESCR with regard to indigenous peoples. This is amongst others the case in Peru where consecutive Governments have allowed the Camisea gas exploitation project to go on although the concession is overlapping with the territory of six indigenous peoples: the Matsiguenga, the Piro, the Amahuaca, the Yaminahua, the Nahua and the Kugapakori. The exploration and exploitation activities cause environmental destruction, which threatens the food security and food sovereignty of these indigenous peoples. Moreover the Nahua and Kugapakori are nomadic peoples living in voluntary isolation, which are extremely vulnerable to non-indigenous diseases brought inside their territory by workers of companies involved in the Camisea project. These peoples have never been consulted by the authorities about the project although this is required according to ILO Convention 169, which has been ratified by Peru.

Under its duty to protect the rights enunciated in the ICESCR, Belgium should encourage the Peruvian and other governments, to respect article 1 (2) of the ICESCR and to ratify and implement ILO Convention 169 Concerning Indigenous and Tribal Peoples in Independent Countries (1989), which in its preamble recalls amongst others the terms of the ICESCR.

Issues of Concern



Questions


• why Belgium is not ratifying ILO Convention 169?

• what actions Belgium will undertake to live up to its international obligation to protect the rights enunciated in the ICESCR, in particular Article 1 (2), with regard to indigenous peoples, e.g. in the case of Peru?

Recommendations


• to ratify, implement and promote ILO Convention 169.

• to live up to its international obligation to protect the rights enunciated in the ICESCR, in particular Article 1 (2), with regard to indigenous peoples, and to exert pressure therefore on States which it is providing development co-operation to allign their policy towards indigenous people fully with the Covenant and ILO Convention 169.



1

Part III: An Optional Protocol to the ICESCR


Optional Protocol 2

Optional Protocol

In relation to this parallel report on Belgium’s obligations under the ICESCR, the Coalition of Belgian Civil Society for Economic, Social and Cultural Rights would also like to address a broader issue, i.e. that of an Optional Protocol to the ICESCR. Efforts to establish a complaints procedure for violations of ESC rights have been underway for a number of years now, and partner organizations in the South, particularly in South-America, have stressed the crucial importance of accountability for violations of ESC rights.

Belgium has demonstrated a sustained commitment to economic, social and cultural rights. It has recently ratified important European instruments in this regard, like the Optional Protocol to the European Social Charter providing for a system of collective complaints (ratified in June 2003), and the revised European Social Charter (ratified in March 2004). It is equally committed to the availability of complaints mechanisms for violations of human rights, both at the regional and universal level. Moreover, Belgium is among the countries that have taken a positive attitude towards the Optional Protocol in the Open-Ended Working Group.

Recommendations

• The Committee might consider urging Belgium to support the drafting of an OP-ICESCR as soon as possible. It should invite Belgium to continue to align with those other states in the European Union that take a positive approach on this issue, and to actively engage in the open-ended working group. As to substantive issues concerning the complaints procedure, it should recommend Belgium to take as a starting point the consensus reached on the occasion of the adoption of recent human rights instruments providing for a complaints procedure, such as the OP-CEDAW.

Justification

Recommen- dations and Questions