A/HRC/25/31
stressing the need for remedies in case of discrimination,86 and many other treaty bodies
have affirmed it, including the Committee on the Elimination of Discrimination against
Women,87 the Committee on the Rights of the Child,88 and the Committee on Migrant
Workers.89 The Special Rapporteur on adequate housing and the Special Rapporteur on
extreme poverty and human rights have stated that remedies for economic, social and
cultural rights violations cannot discriminate against certain groups of rights holders, but
must be available to all on an equal footing.90 Particular attention should be paid to direct or
indirect discrimination on the basis of poverty,91 social marginalization,92 age,93 caste,94
race, colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.95
23.
Ensuring equal access to justice for economic, social and cultural rights violations
requires repealing or modifying any laws that effectively prevent certain groups from
accessing remedies. The Committee on the Elimination of Discrimination against Women
has emphasized that laws affecting a work permit upon receipt of a complaint may prevent
or discourage women migrant workers from accessing remedies,96 while the Committee on
Migrant Workers has indicated that domestic workers as a group must not be systematically
excluded from remedial systems through categorization as non-workers.97 However, in
some circumstances it might not be sufficient to require that laws and regulations
concerning access to legal remedies for economic, social and cultural rights violations do
not discriminate. In some cases, such as those of undocumented women migrant workers or
homeless people, procedural laws and regulations should include proactive measures to
ensure access to justice by such categories of persons.98 Affirmative protection will be
important when it is likely that a person will suffer discrimination in access to justice based
on group membership.
24.
The obligation to ensure equality of access to justice requires that States eliminate
inequality or discrimination in fulfilling the various components of the right of access to
justice. For instance, the Committee on the Elimination of Discrimination against Women
has determined that the obligation to provide legal assistance and legal aid must be fulfilled
equally for women migrant workers who have suffered violations under labour and
employment laws.99 According to the Committee on the Rights of the Child: “States may
have to provide special assistance to children who face obstacles to accessing justice, for
example, because of language or disability or because they are very young.”100 In this sense,
the various aspects concerning access to justice — such as the rights to physical access,
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90
91
92
93
94
95
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99
100
12
CESCR, general comment No. 16 (2005), para. 21; general comment No. 17 (2005), paras. 19, 39;
general comment No. 20 (2009), para. 40; E/C.12/IND/CO/5, 2008, para. 53; E/C.12/1/Add.82, 2002,
para. 36.
CEDAW, general recommendation No. 26 (2008), para. 26 (b).
CRC, general comment No. 16 (2013), para. 68.
CMW, general comment No. 1 (2010), para. 49.
A/HRC/19/53, para. 59; A/67/278, paras. 9–10.
CESCR, general comment No. 16 (2005), para. 21; see also A/67/278, para. 10.
CESCR, general comment No. 16 (2005), para. 21; general comment No. 17 (2005), para. 39.
See CRC, general comment No. 16 (2013), para. 66.
See E/C.12/IND/CO/5, 2008, para. 53.
CESCR, general comment No. 17 (2005), para. 19.
CEDAW, general recommendation No. 26 (2008), para. 26 (c). See also CMW, general comment
No. 1 (2010), paras. 20 and 49.
CMW, general comment No. 1 (2010), paras. 18–19.
See CEDAW, general recommendation No. 26 (2008), para. 26 (b) and (c); A/HRC/7/16, para. 99 (b).
CEDAW, general recommendation No. 26 (2008), para. 26 (c).
CRC, general comment No. 16 (2013), para. 68.
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