07 Aug Irreparable harm and ESC rights: immediate measures of the European Committee of Social Rights
Róisín Pillay is Director of the ICJ’s Europe and Central Asia Programme
In the slow and sometimes frustrating business of international human rights litigation, interim measures stand out as an icon of practicality. In countless cases, they have saved lives – epitomising the principle of real and effective rather than theoretical and illusory protection of human rights.
Indicated by international courts to prevent irreparable harm to one of the parties pending a final decision in the case, interim measures (also known as provisional or immediate measures) have been expressly articulated by international human rights courts and tribunals as a necessary means to ensure effective protection of human rights. Although often contested by States, interim measures of most international human rights mechanisms are now accepted as having binding effect, following the lead of the International Court of Justice. The binding nature of interim measures has been established by the European Court of Human Rights since the case of Mamatkulov and Astrakov v Turkey, and has been affirmed in relation to individual petitions to UN treaty bodies, and by the Inter-American Court and Commission of Human Rights.
But the scope of application of interim measures, perhaps in recognition of their power, has been relatively confined. They have been most frequently related to civil and political rights, in particular the right to life and freedom from torture or other ill-treatment, although decisions of the Inter-American system, and more recently of the UN treaty bodies, have applied them more broadly. Statistics of the European Court of Human Rights for example, show that the majority of its interim measures are indicated to prohibit the transfer of an applicant in violation of the principle of non-refoulement.
It is less common for interim measures to provide urgent protection of economic, social or cultural rights. This neglect is perhaps a relic of the old prejudice against such rights as softer, less deserving of adjudication, of urgent or directive measures. This attitude was evident for example in negotiations on the Optional Protocol to the International Covenant on Economic Social and Cultural Rights (ICESCR) allowing for individual complaints, where inclusion of interim measures was contested by some states on the grounds that they were not necessary or appropriate in ESC rights cases. And although interim measures were ultimately included in the Protocol, they were expressly defined under Article 5 as “exceptional”.
The European Committee of Social Rights (ESCR), which oversees the European Social Charter, has included provision in its rules for “immediate measures” in collective complaints before it, since 2011. Its rule 36.1 states that the Committee may “indicate to the parties any immediate measure the adoption of which seems necessary with a view to avoiding the risk of a serious irreparable injury and to ensuring the effective respect for the rights recognised in the European Social Charter.”
Until this year, the ECSR appears to have granted immediate measures in only two cases: FEANTSA v the Netherlands concerning the provision of shelter to homeless people and Conference of European Churches v the Netherlands, concerning the provision of food, shelter and clothing to destitute undocumented migrants. It refused them in a handful of others.
However, two recent decisions of the ECSR on collective complaints, one concerning the living conditions of migrant children and the other housing for Roma communities, demonstrate both the need and the potential of interim measures to support effective protection of economic and social rights by international mechanisms. Both cases present situations of clear urgency and potential for irreparable harm.
The first case, International Commission of Jurists (ICJ) and European Council on Refugees and Exiles (ECRE) v Greece concerns the insanitary, overcrowded and dangerous living conditions of many migrant children in Greece, and the consequences of these conditions for the children’s physical and mental health. The collective complaint, brought by the ICJ and ECRE in association with the Greek Council for Refugees (GCR), alleges systematic violations of the rights of migrant children on the Greek mainland and North East Aegean Islands, including in regard to the right of children to special protection (Article 7 of the Charter), rights to health (article 11), to social and medical assistance (Article 13) and to housing (Article 31).
On 23 May, the Committee issued an interim admissibility decision which also indicated immediate measures, requiring the government to immediately provide the migrant children concerned by the collective complaint with appropriate shelter, food, water, education and medical care; to ensure unaccompanied migrant children in detention and in Reception and Identification Centres (RICs) at the borders are placed in suitable accommodation for their age, and to appoint effective guardians for separated or unaccompanied migrant children.
In its decision, the Committee reiterated that the purpose of such measures is to avoid irreparable harm insofar as “the aim and purpose of the Charter, being a human rights protection instrument, is to protect rights not merely theoretically, but also in fact”. It stressed that immediate measures would be granted only where there was a tangible situation of risk of such harm. Although noting the exceptional nature of interim measures, the Committee considered that there were grounds to indicate them in this case as the migrant children who were the subject of the collective complaint were evidently at risk of serious irreparable harm to their lives, as a result of living in substandard and harmful conditions, with insufficient provision of shelter, food, water, electricity, heating and healthcare as well as a risk of assault or abuse.
Just over a month later, in July 2019, the Committee made an order for immediate measures in the case of Amnesty International v Italy concerning the right to housing of Roma people evicted or facing eviction.
The Committee’s decision on immediate measures invited Italy to “[a]dopt all possible measures to eliminate the risk of serious and irreparable harm to which the persons evicted and concerned by the present complaint are exposed” and in particular to ensure that persons evicted were not rendered homeless and that evictions did not result in the persons concerned experiencing unacceptable living conditions.
It is notable that in this case the Committee indicated immediate measures on its own initiative, in the absence of a request from the complainant, in accordance with Rule 36(1). Referring once again to the exceptional nature of interim measures, the Committee nonetheless noted that in the case before it, the people concerned by the complaint were at risk of homelessness or of being exposed to unacceptable living conditions. Interestingly, the Committee also supported its decision with reference to a recent decision of the European Court of Human Rights indicating interim measures in a situation closely related to that at issue in the collective complaint.
Both cases demonstrate that urgent circumstances requiring immediate steps to prevent irreparable harm can arise in ESC rights cases far removed from the more customary territory of expulsions, detention or the death penalty. It is difficult to argue with the potential of situations of destitution, homelessness and insecurity to lead to irreparable harm to life and health, and many other ESC rights violations – such as lack of access of a child to education for example – can also risk irreparable consequences. In such cases, the criterion of “exceptionality” of interim measures needs to be conditioned by the principle that interim measures should be indicated wherever necessary to prevent such harm.
The willingness of the ECSR, demonstrated in these two cases, to grant immediate measures where there is clear risk of such harm is welcome and necessary for the effectiveness of its protection system. The question now is whether the states concerned will take the requisite action to protect the rights of those concerned, pending the Committee’s final decisions. Immediate measures in such cases clearly present a challenge to the states concerned and to the collective complaint system, to ensure, sometimes in complex circumstances, that the measures take real effect and prevent harm. If that challenge can be met, immediate measures can considerably strengthen the efficacy of international human rights mechanisms in the protection of ESC rights.