Newsletter 9 – April 2013




Jessie Hohmann, The Right to Housing: Law, Concepts, Possibilities (Oxford: Hart Publishing, 2013).

This book provides a much needed exploration of the right to housing. In approach it offers a new framework for argument within which the right to housing, as well as other under-theorised and contested rights, can be reconsidered, connecting human rights with the social conditions of their violation, and hence with the reasons for their existence.


Thérèse Murphy (ed.) European Law and New Health Technologies. (Oxford: Oxford University Press, 2013) (with M. Flear, A. Farrell & T. Hervey)

This collection analyses European law and its relationships with new health technologies. The collection explores the way in which European law’s engagement with new health technologies is to be legitimized, and discusses the implications for biological or biomedical citizenship


Jane Williams (ed.), The UN Convention on the Rights of the Child in Wales (Cardiff: University of Wales Press, 2013)

This edited collection tells the story behind a ground-breaking Welsh law which reinforces the human rights of children and young people in Welsh devolved government, examining the impact of this law in selected policy areas and shows why the Welsh approach is attracting worldwide interest. It includes chapters on a range of child ESR issues.


Thérèse Murphy, Special Issue on ‘Regulatory Desirables for New Health Technologies (2013) 21(1) Medical Law Review.(with A. Farrell, S. Devaney & T. Hervey)


Thérèse Murphy (ed.) Special Edition on ‘Contextualising the Regulation of Health Technologies’ (2012) 4(2) Law, Innovation and Technology (with A. Farrell, S. Devaney & T. Hervey)


Benjamin Mason Meier and Lance Gable ‘US Efforts to Realise the Right to Health through the Patient Protection and Affordable Care Act’’ (2013) 13(1) Human Rights Law Review 167


Anashri Pillay ‘Toward Effective Social and Economic Rights Adjudication: The Role of Meaningful Engagement’ (2012) 10(3) International Journal of Constitutional Law 732


Sigrun Skogly, ‘The Requirement of Using the ‘Maximum of Available Resources’ for Human Rights Realisation: A Question of Quality as Well as Quantity?’ (2012) 12(3)
Human Rights Law Review 393


Murray Wesson, ‘Disagreement and the Constitutionalisation of Social Rights’ (2012) 12(2)
Human Rights Law Review 221


A new journal has been launched under the editorial leadership of Manisuli Ssenyonjo. This peer-reviewed international human rights journal, published by Brill, contains articles, recent developments and book reviews. A number of journal articles so far have addressed economic, social and cultural rights More details can be found at:


Amanda Cahill, ‘Food for Thought: Exploring the Right to Food in Theory and Practice’ (2012) Journal of Human Rights Practice 147


SSRN papers


Aoife Nolan, Rory O’Connell and Colin Harvey (eds), Human Rights & Public Finance: Budgets and the Promotion of Economic and Social Rights:




***Next ESRAN-UKI Research Workshop***

Date: 22 March, 11:00-13:00

Organisers: Dr Liam Thornton, University College Dublin Law School/UCD Human Rights Network and UCD School of Law

Venue: National University of Ireland, Merrion Square, Dublin 2

For more details, contact ;


‘Applying Equality Strategies to Realise Economic and Social Rights’

Date: 6 June 2013

Organisers: Virginia Mantouvalou (UCL Human Rights Centre)/The Equal Rights Trust

Venue: UCL Faculty of Laws, Bentham House, Endsleigh Gardens, London, WC1H 0EG

For more details, contact


Podcasts (audio and video) and other event resources are now available from the Just Fair event on ‘Freedom from Hunger: Realising the Right to Food in the UK’ Speakers included United Nations Special Rapporteur on the Right to Food, Professor Olivier de Schutter.


Podcasts (audio and video) and other event resources are now available from the Just Fair/LSE Law Event, ‘Austerity on Trial’. Speakers included the UN Special Rapporteur on Human Rights and Extreme Poverty, Magdalena Sepúlveda and ESRAN-UKI’s Jamie Burton and Aoife Nolan.

On 16 March, Jessie Hohmann launched her book The Right to Housing: Law, Concepts, Possibilities. Podcasts, including speeches by Jamie Burton (Just Fair, Doughty Street Chambers) and John Gallagher (Shelter) are available at the link below. The event was chaired by Geraldine Van Bueren.


New podcasts of speaker presentations from the COMPAS Seminar Series on ‘International Migration and Human Rights’ have become available at:


Interview with Paul Hunt on ‘Health and Human Rights’ (10 December 2012)




General Information


Latest Edition of ESCR-Justice: Monthly Caselaw Update:


Latest Edition of INTERIGHT’S CommonwealthNet: CommonwealthNet is INTERIGHTS’ free monthly information service on the latest human rights decisions in the Commonwealth and common law jurisdictions, providing a concise round-up of judicial decisions in cases raising significant human rights issues in the common law world, with links given to full-text decisions.




Communication No. 28/2010, R.K.B. v Turkey, UN Committee on the Elimination of All Forms of Discrimination against Women, 24 February 2012, UN Doc. CEDAW/C/51/D/28/2010

The communication involved the summary dismissal of a woman employee. When she legally challenged the decision, her employer claimed she had been dismissed due to ‘displaying seemingly sexually-oriented relationships with persons of the opposite sex’, a fact which the complainant denied. The domestic courts held that the termination was her unemployment was unjustified but did not find she had been subject to gender-based discrimination. The Committee found violations of the complainants’ CEDAW rights in terms of Article 2(a) and (c) (policy measures); Article 5(a) (sex role stereotyping and prejudice) and Article 4(2)(b) and (c) (special measures aimed at accelerating de facto equality between men and women) and the right to work and equal treatment in respect of work (Article 11(1)(a) and (d)).


Communication No. 19/2008, Kell v Canada, 27 April 2012, , UN Committee on the Elimination of All Forms of Discrimination against Women, UN Doc CEDAW/C/51/D/19/2008

The complainant was a Canadian aboriginal woman living in the Northwest Territories of Canada. She had been the subject of severe, long-term domestic violence. She had been evicted from her home by her partner who (without the complainant’s knowledge) had applied successfully to a state agent to have the complainant’s name removed from the Assignment of Lease. The Committee found that the State had engaged in multiple forms of discrimination – on the basis of gender and ethnicity, aggravated by domestic law – and that the right to equality of both spouses in respect of the ownership, acquisition, management, administration, enjoyment and disposition of property was also infringed (Article 16(1)(h)). She had also suffered a violation of her equal rights in respect of property. ComEDAW also found that the state had failed to refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise (Article 2(d) and (e)). The Committee found that intersectional discrimination had taken place against the complainant on the grounds of gender, ethnicity and her status as a victim of domestic violence. The Committee did not find, however, that the act of discrimination suffered by the author was related to her originating from a rural area or that she was prevented from residing in another property in the same community; therefore, there was no violation of Article 14(2)(h) (rural women) and Article 15(4) (freedom of movement and residence).




Oleksandr Volkov v Ukraine, App. No. 21722/11, 9 January 2013, European Court of Human Rights.

The applicant had been dismissed from his post of judge of the Supreme Court. The Court held that the proceedings leading up to the applicant’s dismissal had not fulfilled the requirements of an ‘independent and impartial tribunal’ in terms of Article 6 ECHR. In addition, the applicant’s dismissal had constituted an interference with his right to respect for private and family life and the decision to remove him from office had not been lawful under national law. This was sufficient to find that said interference was not justified and therefore in violation of Article 8 (right to respect for private and family life and home). Given the very exceptional circumstances of the case, the Court held that Ukraine was to reinstate the applicant at the earliest possible date – the first time that the Court had ever made such an order.

A range of different documents relating to the case can be found at:


Defence for Children International (DCI) v Belgium, Complaint No. 69/2011, 23 October 2012, European Committee of Social Rights.

The European Committee of Social Rights found that that unaccompanied foreign minors unlawfully present or seeking asylum and illegally resident accompanied foreign minors were denied their rights in terms of Articles 7(10), 11 and 17 of the Revised European Social Charter 1996. While the children in question were legally entitled to receive social assistance in Belgium, they were denied such assistance in practice due to saturation of the reception network and other issues.


Buckland v UK, App. No.40060/08, 18 September 2012, European Court of Human Rights.

The applicant was a British gypsy. The case concerned her threatened eviction from a caravan site after a possession order had been made against her and her family on the grounds that they were guilty of causing very substantial nuisance to the site to the detriment of other occupiers. Relying on Article 8 ECHR (right to respect for private and family life and home), she alleged that she had not had the possibility of challenging the authorities’ decision in the domestic proceedings. The Court agreed, finding the possibility of suspension for up to twelve months of the possession order (as opposed to the possibility of arguing that no possession order ought to have been made at all) was inadequate, by itself, to provide the necessary procedural guarantees under Article 8. The failure to provide the procedural safeguards required by Article 8 for the assessment of the proportionality of the interference were not observed and there had therefore been a violation of that right.


IB v Greece, App. No. 552/10, 28 August 2012, European Court of Human Rights, Admissibility Decision.

This application was submitted on behalf of a HIV-positive person who was dismissed from his job in the private sector, because his colleagues objected to having him as a co-worker. The application alleges violations of Articles 8 and 14 of the ECHR. in French)

For more information on this application, contact


General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v Greece, Complaint No.66/2011, 23 May 2012, European Committee of Social Rights.

The complaint concerned measures relating to remuneration and working conditions set out in Act No. 3899/2010 of 17 December 2010. These provisions allowed (i) fixed-term “special apprenticeship contracts” to be concluded between employers and individuals aged 15 to 18, without regard for the main safeguards provided for by labour and social security law, and (ii) employers to pay new entrants to the labour market aged under 25 a rate of 84% of the minimum wage or daily wage. The

complainant trade union argued that these provisions were in violation of Articles 1 (right to work) , 4 (right to a fair remuneration), 7 (the right of children and young persons to protection), 10 (right to vocational training), and 12 (right to social security) of the European Social Charter. The Committee concluded that there were violations of Article 7(7), 10(2), 12(3) and 4(1) of the 1961 European Social Charter. In para 47 of its decision, the Committee highlighted the requirements that financial consolidation measures must meet in order to avoid constituting ‘retrogressive steps’ in violation of Article 12(3) of the Charter.


General Federation of employees of the national electric power corporation (GENOP-DEI) and Confederation of Greek Civil Servants’ Trade Unions (ADEDY) v Greece, Complaint No. 65/2011, 23 May 2012, European Committee of Social Rights.

The European Committee of Social Rights concluded that the statutory provision that made it possible to dismiss a person without notice or severance pay during the probation period in an open-ended contract, was in breach of Article 4§4 of the 1961 European Social Charter.




Lee v Minister of Correctional Services [2012] ZACC 30, 11 December 2012, South Africa Constitutional Court.

This case concerned a prisoner who had contracted TB whilst in detention. The Court held that the Correctional Services authorities have a duty to provide adequate healthcare services, as part of the constitutional right of all prisoners to “conditions of detention that are consistent with human dignity” (Section 35(2)(e)). Here, the responsible authorities were aware that there was an appreciable risk of infection and contagion of TB in crowded living circumstances. Being aware of that risk they had a duty to take reasonable measures to reduce the risk of contagion; this included the effective screening of incoming prisoners and the isolation of infectious patients, which had not taken place in this case.


Moore v British Columbia (Education) & Anor 2012 SCC 61, 9 November 2012, Supreme Court of Canada
The Court held that the School district had discriminated against the severely dyslexic student applicant on the basis of disability by closing the special needs facility which would provide him with the remedial help that he could not obtain at his public school. The Court held that said closure unjustifiably denied him meaningful access to the general public education system in violation of Section 8 of the British Columbia Human Rights Code. The Court ordered that the family be reimbursed for the tuition costs of the student’s private school, which was the only alternative that would provide the intense remediation that the student required. The District had sought to justify its conduct on the budgetary crisis it faced during the relevant period, which led to the closure of the Centre and other related cuts.  The Court held, however, that the British Columbia Human Rights Tribunal’s earlier findings that the District had other options available for addressing its budgetary crisis should not be disturbed.  (The Tribunal had found that the District undertook no assessment of what alternatives were or could be reasonably available to accommodate special needs students if the Diagnostic Centre were closed. It also found that cuts were disproportionably made to special needs program. According to the Tribunal, in order for the District to decide that it had no other choice but to provide no meaningful access to an education for the student, it had at least to consider what those other choices were).

Full text at


Mmusi and Ors v Ramantele and Anor [2012] BWHC 1,12 October 2012, Botswana High Court.

The Court declared unconstitutional a customary law inheritance which permitted only males to succeed in intestate succession. The Court found that the rule violated the women applicants’ right to equality under Section 3(a) of the Constitution of Botswana.


Georgina Ahamefule v Imperial Medical Centre & Dr Alex Molokwu, Suit No. ID/1627/2000, 27 September 2012. Lagos High Court.

The court held that the dismissal of the applicant by a hospital on the ground of their HIV positive status was unlawful discrimination in violation of Articles 2, 18(3) and 28 of the African Charter of Human and Peoples’ Rights (Ratification and Enforcement) Act. Furthermore, being subject to HIV testing without informed consent constituted unlawful battery. Finally, the Court found that the denial of medical care on the grounds of HIV positive status was a flagrant violation of the right to health protected under Article 16 of the African Charter of Human and Peoples’ Rights (Ratification and Enforcement) Act and Article 12 ICESCR.


Mchunu and Ors v Executive Mayor of eThekwini andOr., 19 September 2012, Durban High Court.

The Court handed down a judgment requiring the Mayor of eThekwini, the City Manager and the Director of Housing to take all the necessary steps, within three months, to provide permanent housing to 37 poor families living in a transit camp near KwaMashu, Durban. The families had been evicted from an informal settlement in order to allow for the construction of a road, without provision for relocation in adequate accommodation. (Facts taken from SERI website)


LM and Ors v Government of the Republic of Namibia [2012] NAHC 211, 30 July 2012, High Court of Namibia.

The Court held that sterilisations performed on women during childbirth by medical personnel in state hospitals were unlawful, as informed consent was not obtained prior to the procedures. However, the Court held that the applicants had failed to satisfy the onus on them to prove that the sterilisations were effected on account of their HIV status. adapted from Interights bulletin)


Centre for Child Law and Ors v Minister of Basic Education & Ors, Case No. 1749/2012, [2012] ZAECGHC 60, 3 July 2012, Eastern Cape High Court.

The case involved the right to basic education under Section 29(1)(a) of the Constitution. The Court held that the respondents were obliged to implement the 2012 educator establishments which had already been declared. The respondents were thus obliged to declare post establishments for both teaching staff and non-teaching staff for 2013 for public schools in the province, and were required to fill those posts which they would have budgeted to do.




Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions [2013] EWCA Civ 66, 12 February 2013, England & Wales Court of Appeal.

The UK Government’s ‘back to work’ schemes were deemed illegal on the grounds that the 2011 regulations made by the Secretary of State for Work and Pensions that provided for the relevant schemes were incompatible with section 17A and other sections of the Jobseekers Act 1995. Specifically, the schemes did not “assist [claimants] to obtain employment” or improve “their prospects of obtaining employment”, as stated in Section 17A. Notably, however, the Court of Appeal held that, provided the arrangements made served the statutory purpose stated in section 17A of the 1995 Act, they need not engage Article 4 ECHR (prohibition on forced labour).

For a useful analysis of the decision, see


Child Poverty Action Group, R (on the application of) v Secretary of State for Work and Pensions [2012] EWHC 2579 (Admin), 17 July 2012, England and Wales High Court.

The Court ruled that the UK Government had acted unlawfully in its failure to establish a Child Poverty Commission to advise on its child poverty strategy in terms of the Child Poverty Act 2010 (since amended by the Welfare Reform Act 2012).


R (on the application of KM) (by his mother and litigation friend JM) (FC) (Appellant) v Cambridgeshire County Council (Respondent) [2012] UKSC 23, 31 May 2012, UK Supreme Court.

The appellant (who was severely disabled, with needs defined by the respondent Council as ‘critical’) challenged a determination made by Cambridgeshire County Council to pay him an annual sum of £85k in discharge of its duties to him under section 2(1) of the Chronically Sick and Disabled Persons Act 1970. He argued that the determination was unlawful either because it was not adequately supported by reasons or because it was irrational. He asked for the determination to be quashed and either that the Council should conduct a redetermination of it or that the court should itself substitute for it a determination that the annual sum payable to him be £120k. The Court rejected the appellant’s challenge to the rationality of its decision. While the Court found that his challenge to the adequacy of the reasons for the offer was more arguable: ‘Nevertheless, in the light of the amplification of [the Council’s] reasoning in the mass of evidence filed on its behalf in response to the application for judicial review … which has enabled the appellant … to lead a fully informed inquiry into its determination in courts at three different levels, the result of which leaves no real doubt about its lawfulness, it would be a pointless exercise of discretion to order that it should be quashed so that the appellant’s entitlement might be considered again, perhaps even to his disadvantage.’ In her concurring opinion. Lady Justice Hale provided some important (albeit obiter) observations on the House of Lords’ decision of R v Gloucestershire County Council, Ex p Barry [1997] AC 584.




UN Committee on the Elimination of All Forms of Discrimination against Women, General Recommendation on article 16 CEDAW: Economic consequences of marriage, family relations and their dissolution, UN Doc CEDAW/C/GC/29 (2013)

This General Recommendation engages directly and indirectly with a wide range of women’s ESR. It also addresses land rights and inheritance rights.


UN Committee on the Rights of the Child, General Comment No. 16 on state obligations regarding the impact of the business sector on children’s rights (2013)


UN Committee on the Rights of the Child, General Comment No. 15 on the right of the child to the enjoyment of the highest attainable standard of health (Article. 24)


ESCR-Net, ‘Economic, Social and Cultural Rights Now Fully Justiciable at the International Level!’

This press release provides up-to-date information on the process of ratification and pending entry into force of the OP-ICESCR.


Centre for Reproductive Rights, ‘Reproductive Rights: A Tool for Monitoring State Obligations’ (CFRR/UNFPA, 2013)

The tool outlines State obligations under international and regional human rights law on a range of reproductive rights issues— freedom from discrimination, contraceptive information and services, safe pregnancy and childbirth, abortion and post-abortion care, comprehensive sexuality education, freedom from violence against women, and HIV/AIDS. The tool then identifies key questions that human rights experts and monitoring bodies can use to assess to what extent a State is in compliance with its obligations.


Centre for Human Rights in Practice ‘Using Human Rights and Equality to Challenge the Public Spending Cuts – Workshop Report’, University of Warwick, 12 November 2012

The seminar brought together academics, civil society activists, legal practitioners, and trade union representatives to share their experience of using human rights and equality standards to analyse and challenge the public spending cuts.


Amnesty International and Right to Education Project, ‘The Right to Education’ (Netherlands: Amnesty, 2012)

Amnesty International, ‘The Right to Health’ (Netherlands: Amnesty, 2012)

The Haki Zetu handbook series is a practical toolkit for local NGO’s and CBO’s working with local communities to realize their economic, social and cultural rights.


Centre for Human Rights in Practice, ‘Database of Resources for Human Rights and Equality Analysis and Challenge to the Public Spending Cuts’

The database contains links to resources that organisations and individuals who are analysing and challenging decisions on the public spending cuts may find useful.


‘The World Inequality Database on Education’

This database brings together data from demographic and health surveys indicators cluster surveys from over 60 countries to enable users to compare education attainment between countries and between groups within countries, according to factors that are associated with inequality, including wealth, gender, ethnicity and location.


The UN Special Rapporteur on the Right to Education (15 August 2012)

The report is devoted to technical and vocational education and training from a right to education perspective. It highlights international obligations as well as political commitments to promote technical and vocational education and training.


The UN Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (10 August 2012)

In this report, the Special Rapporteur on adequate housing analyses the ruling paradigm of housing policies that focus on housing finance as the main means of promoting homeownership. The report assesses the impact of prevalent housing finance policies on the right to adequate housing of those living in poverty.


Center for Economic and Social Rights, ‘Fiscal Fallacies: 8 Myths about the “Age of Austerity” and Human Rights Responses’


Latest Edition of OHCHR ESCR Bulletin:

The OHCHR ESCR Bulletin provides updates on economic, social and cultural rights for OHCHR staff working in the field and at Headquarters. Issued every two months, this Bulletin aims at sharing news, activities, key events and new resources relevant to economic, social and cultural rights (ESCR).


Latest Edition of ESCR-Net Newsletter:


Latest Edition of Equality and Diversity Forum Newsletter: The EDF Newsletter contains information about new equality and human rights developments, policy and publications, as well as details of forthcoming events and job vacancies.





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